Chapter 895

895.58   Liability exemption; use of special waste under public works contracts.

895.61   Asbestos successor corporation; limitation on liability.

895.62   Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity.

SUBCHAPTER III

STRUCTURED SETTLEMENT TRANSFERS

895.65   Definitions.

895.66   Mandatory disclosures.

895.67   Approval of transfers of structured settlement payment rights.

895.68   Effects of transfer of structured settlement payment rights.

895.69   Procedure.

895.70   General provisions.

subch. I of ch. 895 SUBCHAPTER I

DAMAGES, RECOVERY, AND MISCELLANEOUS
PROVISIONS REGARDING ACTIONS IN COURTS

895.01 895.01 What actions survive; actions not to abate.

895.01(1) (1) 

895.01(1)(am) (am) In addition to the causes of action that survive at common law, all of the following also survive:

895.01(1)(am)1. 1. Causes of action to determine paternity.

895.01(1)(am)2. 2. Causes of action for the recovery of personal property or the unlawful withholding or conversion of personal property.

895.01(1)(am)3. 3. Causes of action for the recovery of the possession of real estate and for the unlawful withholding of the possession of real estate.

895.01(1)(am)4. 4. Causes of action for assault and battery.

895.01(1)(am)5. 5. Causes of action for false imprisonment.

895.01(1)(am)6. 6. Causes of action for invasion of privacy.

895.01(1)(am)7. 7. Causes of action for a violation of s. 968.31 (2m) or other damage to the person.

895.01(1)(am)8. 8. Causes of action for all damage done to the property rights or interests of another.

895.01(1)(am)9. 9. Causes of action for goods taken and carried away.

895.01(1)(am)10. 10. Causes of action for damages done to real or personal estate.

895.01(1)(am)11. 11. Equitable actions to set aside conveyances of real estate.

895.01(1)(am)12. 12. Equitable actions to compel a reconveyance of real estate.

895.01(1)(am)13. 13. Equitable actions to quiet the title to real estate.

895.01(1)(am)14. 14. Equitable actions for specific performance of contracts relating to real estate.

895.01(1)(bm) (bm) Causes of action for wrongful death shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death of the injured person.

895.01(2) (2) An action does not abate by the occurrence of any event if the cause of action survives or continues.

895.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975), 771; 1977 c. 176; 1987 a. 399; 1993 a. 481; 1999 a. 85; 2007 a. 101.

895.01 Annotation Punitive damages incident to damages for the pain and suffering of a decedent may be awarded to the estate. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980).

895.01 Annotation A paternity action may not be brought against a deceased putative father. N.L.B. v. G.B., 140 Wis. 2d 400, 411 N.W.2d 144 (Ct. App. 1987).

895.01 Annotation A claim for loss of enjoyment of life caused by professional negligence of mental health professionals survived the death of the alleged victim. Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999), 97-1969.

895.01 Annotation A survival claim accrues when, with reasonable diligence, the decedent should have discovered the claim, but no later than the date of death. Estate of Merrill v. Jerrick, 231 Wis. 2d 546, 605 N.W.2d 645 (Ct. App. 1999), 99-0787.

895.01 Annotation Parents of minor children have separate claims for pre-death and post-death loss of society and companionship, and damages are not capped by the wrongful-death limit. Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

895.01 Annotation Under sub. (1) (o) [now sub. (1) (bm)] and s. 895.04 (2), a wrongful death claim does not survive the death of the claimant. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05-2315.

895.01 Annotation Survival claims accrue on the date the injury is discovered or with reasonable diligence should be discovered by either the decedent or an appropriate third party, often the decedent’s personal representative, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12-1493.

895.01 Annotation Actions under ss. 551.41 and 551.59 survive the death of the wrongdoer. Continental Assurance Co. v. American Bankshares Corp., 483 F. Supp. 175 (1980).

895.02 895.02 Measure of damages against personal representative. When any action described in s. 895.01 (1) shall be prosecuted to judgment against the personal representative, the plaintiff shall be entitled to recover only for the value of the goods taken, including any unjust enrichment of the defendant, or for the damages actually sustained, without any vindictive or exemplary damages or damages for alleged outrage to the feelings of the injured party.

895.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 176; 2001 a. 102.

895.03 895.03 Recovery for death by wrongful act. Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.

895.03 Annotation A complaint alleging that the defendant shot the plaintiff’s husband and that the shooting was wrongful was sufficient to state a cause of action. Kelly v. Mohrhusen, 50 Wis. 2d 337, 184 N.W.2d 149 (1971).

895.03 Annotation It is sufficient if the death was caused by a wrongful act, neglect, or default in this state. It is not necessary that the death occur in the state. The statute includes cases dealing with breach of warranty arising out of contract. Schnabl v. Ford Motor Co., 54 Wis. 2d 345, 195 N.W.2d 602 (1972).

895.03 Annotation A decedent must have had an actionable claim for damages at the time of death for a wrongful death cause of action to exist. If the statute of limitations would have barred the decedent from bringing a medical malpractice action, had the decedent lived, a wrongful death action based on the alleged malpractice is also barred. Miller v. Luther, 170 Wis. 2d 429, 489 N.W.2d 651 (Ct. App. 1992).

895.03 Annotation This section does not provide when a claim for damages due to wrongful death accrues, or when it must be brought, or when it will be lost. A derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice, s. 893.55, rather than the general wrongful death statute of limitations, s. 893.54, and accrues on the same date as the medical negligence action on which it is based—the date of injury, not the date of death. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.

895.03 Annotation This section says nothing about who can bring a wrongful death claim, or who the defendants can be. The statute only permits the representative of a deceased to maintain an action the deceased could have maintained had the deceased lived. It did not prevent the father of a fetus killed in a car accident from suing the insurer of the fetus’s mother. Tesar v. Anderson, 2010 WI App 116, 329 Wis. 2d 240, 789 N.W.2d 351, 09-1993.

895.03 Annotation The cause of action authorized under this section applies only to deaths caused in Wisconsin. However, Wisconsin courts must allow plaintiffs to sue under another interested state’s law when no Wisconsin law provides for the action and Wisconsin has no public policy against recovery. When there is no cause of action under this section and another state’s wrongful death statute applies, the terms and limitations in s. 895.04 do not apply. Waranka v. Wadena Insurance Co., 2014 WI 28, 353 Wis. 2d 619, 847 N.W.2d 324, 12-0320.

895.03 Annotation The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12-1493.

895.031 895.031 Recovery from estate of wrongdoer. If the death of a person is caused by a wrongful act or omission committed in this state that, if death had not ensued, would have entitled the injured party to maintain an action and recover damages and the wrongdoer dies prior to the time of the death of the injured person, the wrongdoer shall be liable for damages notwithstanding either death. Any right of action against a deceased wrongdoer under this section shall be enforced by bringing an action against the deceased wrongdoer’s personal representative.

895.031 History History: 1993 a. 486; 2001 a. 102.

895.035 895.035 Parental liability for acts of minor child.

895.035(1) (1) 

895.035(1)(a) (a) In this section:

895.035(1)(a)1. 1. “Custody” means either legal custody of a child under a court order under s. 767.225 or 767.41, custody of a child under a stipulation under s. 767.34 or actual physical custody of a child. “Custody” does not include legal custody, as defined under s. 48.02 (12), by an agency or a person other than a child’s birth or adoptive parent.

895.035(1)(a)2. 2. “Governing body of a private school” has the meaning given in s. 115.001 (3d).

895.035(1)(b) (b) In determining which parent has custody of a child for purposes of this section, the court shall consider which parent had responsibility for caring for and supervising the child at the time the act that caused the injury, damage or loss occurred.

895.035(2) (2) 

895.035(2)(a) (a) The parent or parents with custody of a minor child, in any circumstances where he, she, or they may not be liable under the common law, are liable for damages to property, for the cost of repairing or replacing property or removing the marking, drawing, writing, or etching from property regarding a violation under s. 943.017, for the value of unrecovered stolen property, or for personal injury attributable to a willful, malicious, or wanton act of the child.

895.035(2)(b) (b)

895.035(2)(b)1. 1. The parent or parents with custody of their minor child are jointly and severally liable with the child for the damages imposed under s. 943.51 for their child’s violation of s. 943.50.

895.035(2)(b)2. 2. If a parent is jointly and severally liable under this paragraph and has physical placement of the child, the parent’s liability is limited to that percentage representing the time that the child actually spends with that parent.

895.035(2)(b)3. 3. Notwithstanding sub. (1), a parent does not have custody of a child for purposes of this paragraph if at the time of the violation the child has been freed from the care, custody, and control of the parent through marriage or emancipation or if at the time of the violation the parent does not reasonably have the ability to exercise supervision and control of the child because the child is uncontrollable or because another person has interfered with that parent’s exercise of supervision and control.

895.035(2g) (2g) The parent or parents with custody of a minor child are liable for the cost of the repair or replacement of, or the removal of the etching, marking, drawing or writing from, property damaged as the result of a violation of an ordinance that prohibits intentional etching or marking, drawing or writing with paint, ink or other substance on the physical property of another without the other’s consent.

895.035(2m) (2m) 

895.035(2m)(a) (a) If a juvenile or a parent with custody of a juvenile fails to pay restitution under s. 938.245, 938.32, 938.34 (5), 938.343 (4), 938.345 or 938.45 (1r) (a) as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the juvenile or parent will not pay restitution as ordered or agreed to, the victim, the victim’s insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the victim or the victim’s insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim’s insurer, or both, from commencing another action seeking compensation from the juvenile or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim’s insurer.

895.035(2m)(b) (b) If a juvenile or a parent with custody of a juvenile fails to pay a forfeiture as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court, if a juvenile or a parent with custody of a juvenile fails to pay costs as ordered by the court assigned to exercise jurisdiction under chs. 48 and 938 or a municipal court, if a juvenile fails to pay a surcharge as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a court of criminal jurisdiction or if it appears likely that the juvenile or the parent will not pay the forfeiture or surcharge as ordered, the representative of the public interest under s. 938.09, the agency, as defined in s. 938.38 (1) (a), supervising the juvenile or the law enforcement agency that issued the citation to the juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of the forfeiture, surcharge or costs unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture, surcharge or costs is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.

895.035(2m)(bm) (bm)

895.035(2m)(bm)1. 1. Before issuing an order under par. (a) or (b), the court assigned to exercise jurisdiction under chs. 48 and 938 shall give the juvenile and the parent notice of the intent to issue the order and an opportunity to be heard regarding the order. The court shall give the juvenile and the parent an opportunity to present evidence as to the amount of the restitution, forfeiture or surcharge unpaid, but not as to the amount of the restitution, forfeiture or surcharge originally ordered. The court shall also give the juvenile and the parent an opportunity to present evidence as to the reason for the failure to pay the restitution, forfeiture or surcharge and the ability of the juvenile or the parent to pay the restitution, forfeiture or surcharge. In considering the ability of the juvenile or the parent to pay the restitution, forfeiture or surcharge, the court may consider the assets, as well as the income, of the juvenile or the parent and may consider the future ability of the juvenile or parent to pay the restitution, forfeiture or surcharge within the time specified in s. 893.40.

895.035(2m)(bm)2. 2. In proceedings under this subsection, the court assigned to exercise jurisdiction under chs. 48 and 938 may take judicial notice of any deferred prosecution agreement, consent decree, dispositional order, sentence, extension of a consent decree, dispositional order or sentence or any other finding or order in the records of the juvenile maintained by that court or the municipal court.

895.035(2m)(bm)3. 3. In proceedings under this subsection, the juvenile and the parent may retain counsel of their own choosing at their own expense, but a juvenile or a parent has no right to be represented by appointed counsel in a proceeding under this subsection.

895.035(2m)(c) (c) The court assigned to exercise jurisdiction under chs. 48 and 938 may order that the juvenile perform community service work for a public agency or nonprofit charitable organization that is designated by the court in lieu of making restitution or paying the forfeiture or surcharge. If the parent agrees to perform community service work in lieu of making restitution or paying the forfeiture or surcharge, the court may order that the parent perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the juvenile or parent to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the restitution, forfeiture, or surcharge by the minimum wage established under s. 104.035 (1). The court shall ensure that the juvenile or parent is provided with a written statement of the terms of the community service order and that the community service order is monitored.

895.035(3) (3) An adjudication under s. 938.183 or 938.34 that the juvenile violated a civil law or ordinance, is delinquent or is in need of protection and services under s. 938.13 (12), based on proof that the juvenile committed the act, subject to its admissibility under s. 904.10, shall, in an action under sub. (1), stop a juvenile’s parent or parents from denying that the juvenile committed the act that resulted in the injury, damage or loss.

895.035(4) (4) Except for recovery under sub. (4a) or for retail theft under s. 943.51, the maximum recovery under this section from any parent or parents may not exceed $5,000 for damages resulting from any one act of a juvenile in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court. If 2 or more juveniles in the custody of the same parent or parents commit the same act the total recovery under this section may not exceed $5,000, in addition to taxable costs and disbursements. The maximum recovery from any parent or parents for retail theft by their minor child is established under s. 943.51.

895.035(4a) (4a) 

895.035(4a)(a) (a) The maximum recovery under this section by a school board or a governing body of a private school from any parent or parents with custody of a minor child may not exceed $20,000 for damages resulting from any one act of the minor child in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court, for damages caused to the school board or the governing body of a private school by any of the following actions of the minor child:

895.035(4a)(a)1. 1. An act or threat that endangers the property, health or safety of persons at the school or under the supervision of a school authority or that damages the property of a school board or the governing body of a private school and that results in a substantial disruption of a school day or a school activity.

895.035(4a)(a)2. 2. An act resulting in a violation of s. 943.01, 943.02, 943.03, 943.05, 943.06 or 947.015.

895.035(4a)(b) (b) In addition to other recoverable damages, damages under par. (a) may include the cost to the school board or the governing body of a private school in loss of instructional time directly resulting from the action of the minor child under par. (a).

895.035(4a)(c) (c) If 2 or more minor children in the custody of the same parent or parents are involved in the same action under par. (a), the total recovery may not exceed $20,000, in addition to taxable costs, disbursements and reasonable attorney fees, as determined by the court.

895.035(4a)(d) (d) If an insurance policy does not explicitly provide coverage for actions under par. (a), the issuer of that policy is not liable for the damages resulting from those actions.

895.035(5) (5) This section does not limit the amount of damages recoverable by an action against a child or children except that any amount so recovered shall be reduced and apportioned by the amount received from the parent or parents under this section.

895.035(6) (6) Any recovery of restitution under this section shall be reduced by the amount recovered as restitution for the same act under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or 938.45 (1r) (a). Any recovery of a forfeiture under this section shall be reduced by the amount recovered as a forfeiture for the same act under s. 938.34 (8), 938.343 (2) or 938.45 (1r) (b). Any recovery of a surcharge under this section shall be reduced by the amount recovered as a surcharge under s. 938.34 (8d).

895.035(7) (7) This section does not affect or limit any liability of a parent under s. 167.10 (7) or 343.15 (2).

895.035 History History: 1985 a. 311; 1987 a. 27; 1993 a. 71; 1995 a. 24, 77, 262, 352; 1997 a. 27, 35, 205, 239, 252; 1999 a. 9, 32; 2003 a. 138; 2005 a. 443 s. 265; 2013 a. 237; 2015 a. 55.

895.035 Annotation This section imposes absolute liability on parents once all elements have been established. Accordingly, the defense of contributory negligence is unavailable to parents. First Bank Southeast, N.A. v. Bentkowski, 138 Wis. 2d 283, 405 N.W.2d 764 (Ct. App. 1987).