Chapter 895

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).

895.035 Annotation An “act” under sub. (4) is a complete course of conduct. What distinguishes a single act from multiple acts is whether: 1) a sufficient period of time separates the conduct; 2) the conduct occurred at separate locations; and 3) there is a distinct difference in the nature of the conduct. In cases of improper sexual contact, the jury need not make an individual damage determination for each act. N.E.M. v. Strigel, 208 Wis. 2d 1, 559 N.W.2d 256 (1997), 95-0755.

895.035 Annotation Under s. 938.34 (5) (a), assessing the damages to the victim is the first step in the court’s determination of restitution, and determining the amount the juvenile is capable of paying is the second. Whichever amount is lower is the maximum amount that the court may order as restitution. Under sub. (2m) (a), courts are without authority to order that the “total damage” figure be converted to a civil judgment. Sub. (2m) (a) allows only for the conversion of restitution. State v. Anthony D., 2006 WI App 218, 296 Wis. 2d 771, 723 N.W.2d 775, 05-2644.

895.035 Annotation Torts: The Constitutional Validity of Parental Liability Statutes. O’Connor. 55 MLR 584 (1972).

895.035 Note NOTE: See also the notes to s. 343.15, for parental responsibility for minor drivers.

895.037 895.037 Abortions on or for a minor without parental consent or judicial waiver.

895.037(1) (1) Definitions. In this section:

895.037(1)(a) (a) “Abortion” has the meaning given in s. 48.375 (2) (a).

895.037(1)(c) (c) “Emancipated minor” has the meaning given in s. 48.375 (2) (e).

895.037(2) (2) Penalties.

895.037(2)(a) (a) Any person who, in violation of s. 48.375 (4), intentionally performs or induces an abortion on or for a minor whom the person knows or has reason to know is not an emancipated minor may be required to forfeit not more than $10,000.

895.037(2)(b) (b) Any person who intentionally violates s. 48.375 (7) (e) or 809.105 (12) may be required to forfeit not more than $10,000.

895.037(3) (3) Civil remedies.

895.037(3)(a) (a) A person who intentionally violates s. 48.375 (4) is liable to the minor on or for whom the abortion was performed or induced and to the minor’s parent, guardian and legal custodian for damages arising out of the performance or inducement of the abortion including, but not limited to, damages for personal injury and emotional and psychological distress.

895.037(3)(b) (b) If a person who has been awarded damages under par. (a) proves by clear and convincing evidence that the violation of s. 48.375 (4) was willful, wanton or reckless, that person shall also be entitled to punitive damages.

895.037(3)(c) (c) A conviction under sub. (2) (a) is not a condition precedent to bringing an action, obtaining a judgment or collecting that judgment under this subsection.

895.037(3)(d) (d) A person who recovers damages under par. (a) or (b) may also recover reasonable attorney fees incurred in connection with the action, notwithstanding s. 814.04 (1).

895.037(3)(e) (e) A contract is not a defense to an action under this subsection.

895.037(3)(f) (f) Nothing in this subsection limits the common law rights of parents, guardians, legal custodians and minors.

895.037(4) (4) Confidentiality. The identity of a minor who is the subject of an action under this section and the identity of the minor’s parents, guardian and legal custodian shall be kept confidential and may not be disclosed, except to the court, the parties, their counsel, witnesses and other persons approved by the court. All papers filed in and all records of a court relating to an action under this section shall identify the minor as “Jane Doe” and shall identify her parents, guardian and legal custodian by initials only. All hearings relating to an action under this section shall be held in chambers unless the minor demands a hearing in open court and her parents, guardian or legal custodian do not object. If a public hearing is not held, only the parties, their counsel, witnesses and other persons requested by the court, or requested by a party and approved by the court, may be present.

895.037 History History: 1991 a. 263.

895.037 Annotation The constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

895.038 895.038 Partial-birth abortions; liability.

895.038(1) (1) In this section:

895.038(1)(a) (a) “Child” has the meaning given in s. 940.16 (1) (a).

895.038(1)(b) (b) “Partial-birth abortion” has the meaning given in s. 940.16 (1) (b).

895.038(2) (2) 

895.038(2)(a) (a) Except as provided in par. (b), any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion:

895.038(2)(a)1. 1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.

895.038(2)(a)2. 2. The father of the child aborted by the partial-birth abortion.

895.038(2)(b) (b) A person specified in par. (a) 1. or 2. does not have a claim under par. (a) if any of the following apply:

895.038(2)(b)1. 1. The person consented to performance of the partial-birth abortion.

895.038(2)(b)2. 2. The pregnancy of the woman on whom the partial-birth abortion was performed was the result of a sexual assault in violation of s. 940.225, 944.06, 948.02, 948.025, 948.06, 948.085, or 948.09 that was committed by the person.

895.038(3) (3) The relief available under sub. (2) shall include all of the following:

895.038(3)(a) (a) If the abortion was performed in violation of s. 940.16, damages arising out of the performance of the partial-birth abortion, including damages for personal injury and emotional and psychological distress.

895.038(3)(b) (b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.

895.038(4) (4) Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion.

895.038 History History: 1997 a. 219; 2005 a. 277.

895.038 Annotation A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000).

895.038 Annotation The federal Partial-Birth Abortion Ban Act of 2003 is distinguishable from Stenberg, 530 U.S. 914 (2000), and is constitutional. Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007).

895.038 Annotation Enforcement of s. 940.16 is enjoined under Stenberg, 530 U.S. 914 (2000). Hope Clinic v. Ryan, 249 F.3d 603 (2001).

895.04 895.04 Plaintiff in wrongful death action.

895.04(1) (1) An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.

895.04(2) (2) If the deceased leaves surviving a spouse or domestic partner under ch. 770 and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty and responsibility of a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse or surviving domestic partner, and any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50 percent of the net amount received after deduction of costs of collection. If there are no such surviving minor children, the amount recovered shall belong and be paid to the spouse or domestic partner of the deceased; if no spouse or domestic partner survives, to the deceased’s lineal heirs as determined by s. 852.01; if no lineal heirs survive, to the deceased’s brothers and sisters. If any such relative dies before judgment in the action, the relative next in order shall be entitled to recover for the wrongful death. A surviving nonresident alien spouse or a nonresident alien domestic partner under ch. 770 and minor children shall be entitled to the benefits of this section. In cases subject to s. 102.29 this subsection shall apply only to the surviving spouse’s or surviving domestic partner’s interest in the amount recovered. If the amount allocated to any child under this subsection is less than $10,000, s. 807.10 may be applied. Every settlement in wrongful death cases in which the deceased leaves minor children under 18 years of age shall be void unless approved by a court of record authorized to act hereunder.

895.04(3) (3) If separate actions are brought for the same wrongful death, they shall be consolidated on motion of any party. Unless such consolidation is so effected that a single judgment may be entered protecting all defendants and so that satisfaction of such judgment shall extinguish all liability for the wrongful death, no action shall be permitted to proceed except that of the personal representative.

895.04(4) (4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.

895.04(5) (5) If the personal representative brings the action, the personal representative may also recover the reasonable cost of medical expenses, funeral expenses, including the reasonable cost of a cemetery lot and care of the lot, grave marker or other burial monument, coffin, cremation urn, urn vault, outer burial container, or other article intended for the burial of the dead. If a relative brings the action, the relative may recover those expenses on behalf of himself or herself or of any person who has paid or assumed liability for those expenses.

895.04(6) (6) Where the wrongful death of a person creates a cause of action in favor of the decedent’s estate and also a cause of action in favor of a spouse, domestic partner under ch. 770, or relatives as provided in this section, such spouse, domestic partner, or relatives may waive and satisfy the estate’s cause of action in connection with or as part of a settlement and discharge of the cause of action of the spouse, domestic partner, or relatives.

895.04(7) (7) Damages found by a jury in excess of the maximum amount specified in sub. (4) shall be reduced by the court to such maximum. The aggregate of the damages covered by subs. (4) and (5) shall be diminished under s. 895.045 if the deceased or person entitled to recover is found negligent.

895.04 History History: 1971 c. 59; Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1975 c. 94 s. 91 (3); 1975 c. 166, 199, 287, 421, 422; 1979 c. 166; 1983 a. 315; 1985 a. 130; 1989 a. 307; 1991 a. 308; 1997 a. 89, 290; 2009 a. 28, 276; 2015 a. 237.

895.04 Annotation Statutory increases in damage limitations recoverable in wrongful death actions constitute changes in substantive rights and not mere remedial changes. Bradley v. Knutson, 62 Wis. 2d 432, 215 N.W.2d 369 (1974).

895.04 Annotation A parent may maintain an action for loss of aid, comfort, society, and companionship of an injured minor child on the condition that the parent’s cause of action is combined with that of the child for the child’s personal injuries. Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975).

895.04 Annotation In an action for wrongful death by two children of the deceased, the plaintiffs’ failure to join three other siblings who would otherwise have been indispensable parties was not fatal to the court’s subject matter jurisdiction because affidavits submitted to the trial court indicated that the three siblings were unavailable. Kochel v. Hartford Accident & Indemnity Co., 66 Wis. 2d 405, 225 N.W.2d 604 (1975).

895.04 Annotation A judgment under sub. (2) means a final, not interlocutory, judgment. Collins v. Gee, 82 Wis. 2d 376, 263 N.W.2d 158 (1978).

895.04 Annotation The trial court in a wrongful death action should inform the jury of statutory limitations on recovery, if any. Peot v. Ferraro, 83 Wis. 2d 727, 266 N.W.2d 586 (1978).

895.04 Annotation A posthumous illegitimate child may not maintain an action for the wrongful death of the putative father. Robinson v. Kolstad, 84 Wis. 2d 579, 267 N.W.2d 886 (1978).

895.04 Annotation This section does not require that proceeds be equally divided between parents. Keithley v. Keithley, 95 Wis. 2d 136, 289 N.W.2d 368 (Ct. App. 1980).

895.04 Annotation Punitive damages are not recoverable incident to damages for wrongful death. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980).

895.04 Annotation This section does not permit an estate to recover, on its own behalf, damages for the decedent’s pecuniary loss. Weiss v. Regent Properties, Ltd., 118 Wis. 2d 225, 346 N.W.2d 766 (1984).

895.04 Annotation Recovery under sub. (7) is barred by s. 895.045 if a decedent’s negligence is greater than any individual tortfeasor’s. Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 387 N.W.2d 751 (1986).

895.04 Annotation A spouse’s claim under sub. (4) for loss of society and companionship is additional to a common law claim for loss of consortium prior to the death of the deceased. Kottka v. PPG Industries, Inc., 130 Wis. 2d 499, 388 N.W.2d 160 (1986).

895.04 Annotation A person who “feloniously and intentionally” kills the person’s spouse is not a surviving spouse for purposes of sub. (2) and is treated as having predeceased the decedent. Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988).

895.04 Annotation “Pecuniary injury” under sub. (4) includes the loss of any benefit, including social security disability benefits, that a plaintiff would have received from the decedent. Estate of Holt v. State Farm Fire & Casualty Co., 151 Wis. 2d 455, 444 N.W.2d 453 (Ct. App. 1989).

895.04 Annotation This section is inapplicable in medical malpractice actions. There is no cause of action in an adult child for the loss of society and companionship of a parent. Dziadosz v. Zirneski, 177 Wis. 2d 59, 501 N.W.2d 828 (Ct. App. 1993).

895.04 Annotation The damage limitation under sub. (4) is inapplicable to medical malpractice actions in which death results. Sub. (2) does not prevent a minor from bringing an action for a loss of companionship when malpractice causes a parent’s death, including when the decedent is survived by a spouse. Jelinek v. St. Paul Fire & Casualty Insurance Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994).

895.04 Annotation Although only one parent was the named insured under an uninsured motorist insurance policy paying benefits for the wrongful death of the parents’ child, this section required payment of the proceeds to both parents. Bruflat v. Prudential Property & Casualty Insurance Co., 2000 WI App 69, 233 Wis. 2d 523, 608 N.W.2d 371, 99-2049.

895.04 Annotation Retroactive increases in the statutory damage limits were unconstitutional. Neiman v. American National Property & Casualty Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160, 99-2554. See also Schultz v. Natwick, 2002 WI 125, 257 Wis. 2d 19, 653 N.W.2d 266, 00-0361.

895.04 Annotation Sub. (4) does not: 1) nullify the state constitutional right to have a jury assess damages under article I, section 5, of the Wisconsin Constitution; 2) violate separation of powers principles by blurring the boundaries between judicial and legislative branches; 3) violate constitutional equal protection guarantees; and 4) violate substantive due process. Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, 00-0072.

895.04 Annotation Partially overruled on other grounds. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.

895.04 Annotation The rule that one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole is applicable in wrongful death actions. Wrongful death plaintiffs are entitled to be made whole for their losses, but not more than whole. To the extent that wrongful death plaintiffs receive a portion of damages for expenses they have not incurred after having been made whole, they have been unjustly enriched. Petta v. ABC Insurance Co., 2005 WI 18, 278 Wis. 2d 251, 692 N.W.2d 639, 03-0610.

895.04 Annotation The jury award of noneconomic damages for pre-death claims, namely the claim for the decedent’s pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, s. 893.55, and not the wrongful death statute, this section. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.

895.04 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.

895.04 Annotation Under sub. (2) and s. 895.01 (1) (o), a wrongful death claim does not survive the death of the claimant. In a non-medical malpractice wrongful death case, under sub. (2), a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under s. 655.007 are not subject to a statutory hierarchy like claimants under sub. (2). However, in a medical malpractice wrongful death case, adult children of the deceased are not listed as eligible claimants and are therefore not eligible because of the exclusivity of s. 655.007, as interpreted in Czapinski, 2000 WI 80. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05-2315.

895.04 Annotation Because the legislature modified “children” with “minor” in a different subsection of this section, the only reasonable interpretation of the legislature’s unmodified use of the word “children” in sub. (4) is that the term includes both adult and minor children. Pierce v. American Family Mutual Insurance Co., 2007 WI App 152, 303 Wis. 2d 726, 736 N.W.2d 247, 06-1773.

895.04 Annotation This section does not provide for the recovery of lost inheritance by a party on behalf of a class of heirs. Despite the use of the plural “lineal heirs,” the statute clearly contemplates that each relative will, in turn, have the right to bring an action for wrongful death. The use of the plural “heirs” encompasses exactly the situation when two or more heirs in the same tier of succession in the statutory hierarchy bring a wrongful death action together. Estate of Lamers v. American Hardware Mutual Ins. Co., 2008 WI App 165, 314 Wis. 2d 731, 761 N.W.2d 38, 07-2793.

895.04 Annotation A surviving spouse cannot disclaim a wrongful death claim under s. 854.13 so as to pass ownership of that claim to the deceased’s lineal heirs. Bowen v. American Family Insurance Co., 2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, 11-0185.

895.04 Annotation Sub. (4) does not expand the class of claimants who may recover loss of society and companionship damages beyond those who may recover for wrongful death under subs. (1) and (2). Sub. (4) limits the availability of loss of society and companionship damages to certain persons within the class of claimants entitled to bring wrongful death actions. Bowen v. American Family Insurance Co., 2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, 11-0185.

895.04 Annotation The cause of action authorized under s. 895.03 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 s. 895.03 and another state’s wrongful death statute applies, the terms and limitations in this section do not apply. Waranka v. Wadena Insurance Co., 2014 WI 28, 353 Wis. 2d 619, 847 N.W.2d 324, 12-0320.

895.04 Annotation “Surviving spouse” in sub. (2) does not always simply mean any living spouse of the deceased. A careful reading of sub. (2) makes it clear that the trial court, in an attempt to protect the children, must work from the amount recovered by the spouse who is charged with the support of the minor children. In order to avoid an absurd, unreasonable result contrary to the legislative purposes of the wrongful death statutes, under the unique facts of this case, sub. (2) and s. 895.03 are construed to allow the minor children to recover even though the deceased’s spouse in the instant case is alive and does not recover any damages for the deceased husband’s wrongful death. Force v. American Family Mutual Insurance Co., 2014 WI 82, 356 Wis. 2d 582, 850 N.W.2d 866, 12-2402.

895.04 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.

895.04 Annotation There may not be separate recovery for both an estate and its beneficiaries. Bell v. City of Milwaukee, 746 F.2d 1205 (1984).

895.04 Annotation Cause of Action by Parents Sustained for Loss of Society and Companionship of Child Tortiously Injured. Gonring. 1976 WLR 641.

895.04 Annotation Expanding and Limiting Damages for Pecuniary Injury Due to Wrongful Death. Schoone. WBB Aug. 1972.

895.043 895.043 Punitive damages.

895.043(1) (1) Definitions. In this section:

895.043(1)(a) (a) “Defendant” means the party against whom punitive damages are sought.

895.043(1)(b) (b) “Double damages” means those court awards made under a statute providing for twice, 2 times or double the amount of damages suffered by the injured party.

895.043(1)(c) (c) “Plaintiff” means the party seeking to recover punitive damages.

895.043(1)(d) (d) “Treble damages” means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.