Chapter 895

895.05 Annotation In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, 04-0377.

895.05 Annotation Actual malice requires that an allegedly defamatory statement be made with knowledge that it is false or with reckless disregard of whether it is false or not. Actual malice does not mean bad intent, ill-will, or animus. Repeated publication of a statement after being informed that the statement is false does not constitute actual malice so long as the speaker believes it to be true. Actual malice cannot be inferred from the choice of one rational interpretation of a speech over another. Storms v. Action Wisconsin Inc., 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739, 06-0396.

895.05 Annotation There are two kinds of public figures: public figures for all purposes and public figures for a limited purpose. Like public officials, public figures for all purposes must prove actual malice in all circumstances. Limited purpose public figures, on the other hand, are otherwise private individuals who have a role in a specific public controversy. Limited purpose public figures are required to prove actual malice only when their role in the controversy is “more than trivial or tangential” and the defamation is germane to their participation in the controversy. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

895.05 Annotation The plaintiff was a public figure for all purposes when the plaintiff was involved in highly controversial and newsworthy activities while in public office; the publicity and controversy surrounding these events continued well after the term of office ended; the plaintiff remained in the news after leaving office as a result of new developments in the various inquiries into the plaintiff’s official conduct; and the plaintiff had a connection with another public official in the news. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

895.05 Annotation In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice. However, this rule is not absolute. In this case, because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

895.05 Annotation Sub. (2) provides that an opportunity to correct libelous matter “shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts.” The optional provision, “The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty,” does not nullify the requirement that the notice contain a statement of what are claimed to be the true facts. Once a claimant has been found to not meet the notice requirements, the action cannot be revived by again attempting to comply with the notice provisions. DeBraska v. Quad Graphics, Inc., 2009 WI App 23, 316 Wis. 2d 386, 763 N.W.2d 219, 07-2931.

895.05 Annotation The elements of a defamatory communication are: 1) a false statement; 2) communicated by speech, conduct, or in writing to a person other than the person defamed; and 3) the communication is unprivileged and is defamatory, that is, tends to harm one’s reputation so as to lower the person in the estimation of the community or to deter third persons from associating or dealing with the person. The statement that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682.

895.05 Annotation In a defamation action brought by a private figure against a media defendant, the plaintiff has the burden of proving that the speech at issue is false; this requirement is imposed in order to avoid the chilling effect that would be antithetical to the 1st amendment’s protection of true speech on matters of public concern. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682.

895.05 Annotation On a motion to dismiss or for judgment on the pleadings, the court’s role in assessing an allegedly defamatory statement identified in the complaint is limited to determining whether, as a matter of law, the defendant’s statement is capable of a defamatory meaning. A statement is capable of a defamatory meaning if a defamatory implication is fairly and reasonably conveyed by the words and images used. If a statement is capable of a defamatory meaning, then the determination of whether such a meaning was in fact conveyed is a factual issue to be resolved by the jury. Wagner v. Allen Media Broadcasting, 2024 WI App 9, 410 Wis. 2d 666, 3 N.W.3d 758, 23-0032.

895.05 Annotation For a statement to be defamatory, it must refer to some ascertained or ascertainable person, and that person must be the plaintiff. In this case, when news reports mistakenly conflated the identities of two different law enforcement officers with the same name and then attributed their backgrounds and actions to the single officer who was the subject of the reports but who was not the plaintiff, the plaintiff sufficiently alleged ascertainment. Wagner v. Allen Media Broadcasting, 2024 WI App 9, 410 Wis. 2d 666, 3 N.W.3d 758, 23-0032.

895.05 Annotation The plaintiff in this case was a public official while employed as a sergeant with the police department. Wagner v. Allen Media Broadcasting, 2024 WI App 9, 410 Wis. 2d 666, 3 N.W.3d 758, 23-0032.

895.05 Annotation Persons who qualify as public officials during their terms in office are no longer considered public officials for 1st amendment purposes after they retire. Wagner v. Allen Media Broadcasting, 2024 WI App 9, 410 Wis. 2d 666, 3 N.W.3d 758, 23-0032.

895.05 Annotation Discussing publishers’ privileges and liabilities regarding libel. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).

895.05 Annotation A public figure who sues media companies for libel may inquire into the editorial processes of those responsible when proof of “actual malice” is required for recovery. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).

895.05 Annotation Discussing the “public figure” principle in libel cases. Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 99 S. Ct. 2701, 61 L. Ed. 2d 450 (1979).

895.05 Annotation Under sub. (1), Wisconsin’s judicial-proceedings privilege, which protects publishers that report on court activity, newspapers may summarize court proceedings rather than quote them. The limitation is that a reporter may not characterize the allegations in the pleadings as facts. The reporter must declare them for what they are: accusations subject to judicial review. The privilege protects news media coverage of newly filed pleadings. Financial Fiduciaries, LLC v. Gannett Co., 46 F.4th 654 (2022).

895.05 Annotation If wire service accounts of a judge’s remarks are substantially accurate, a defamation suit by the judge is barred under sub. (1). Simonson v. United Press International, Inc., 500 F. Supp. 1261 (1980).

895.05 Annotation Defamation Law of Wisconsin. Brody. 65 MLR 505 (1982).

895.05 Annotation The “Public Interest or Concern” Test—Have We Resurrected a Standard That Should Have Remained in the Defamation Graveyard? Joy. 70 MLR 647 (1987).

895.05 Annotation A Misplaced Focus: Libel Law and Wisconsin’s Distinction Between Media and Nonmedia Defendants. Maguire. 2004 WLR 191.

895.052 895.052 Defamation by radio and television. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable in damages for any defamatory statement published or uttered in, or as a part of, a visual or sound broadcast by a candidate for political office in those instances in which, under the acts of congress or the rules and regulations of the federal communications commission, the broadcasting station or network is prohibited from censoring the script of the broadcast.

895.055 895.055 Gaming contracts void.

895.055(1) (1) All promises, agreements, notes, bills, bonds, or other contracts, mortgages, conveyances or other securities, where the whole or any part of the consideration of the promise, agreement, note, bill, bond, mortgage, conveyance or other security shall be for money or other valuable thing whatsoever won or lost, laid or staked, or betted at or upon any game of any kind or under any name whatsoever, or by any means, or upon any race, fight, sport or pastime, or any wager, or for the repayment of money or other thing of value, lent or advanced at the time and for the purpose, of any game, play, bet or wager, or of being laid, staked, betted or wagered thereon shall be void.

895.055(2) (2) This section does not apply to contracts of insurance made in good faith for the security or indemnity of the party insured.

895.055(3) (3) This section does not apply to any promise, agreement, note, bill, bond, mortgage, conveyance or other security that is permitted under chs. 562 to 569 or under state or federal laws relating to the conduct of gaming on Indian lands.

895.055 History History: 1993 a. 174; 1995 a. 225; 1997 a. 27.

895.055 Annotation A Puerto Rican judgment based on a gambling debt was entitled to full faith and credit in Wisconsin. Conquistador Hotel Corp. v. Fortino, 99 Wis. 2d 16, 298 N.W.2d 236 (Ct. App. 1980).

895.056 895.056 Recovery of money wagered.

895.056(1) (1) In this section:

895.056(1)(a) (a) “Property” means any money, property or thing in action.

895.056(1)(b) (b) “Wagerer” means any person who, by playing at any game or by betting or wagering on any game, election, horse or other race, ball playing, cock fighting, fight, sport or pastime or on the issue or event thereof, or on any future contingent or unknown occurrence or result in respect to anything whatever, shall have put up, staked or deposited any property with any stakeholder or 3rd person, or shall have lost and delivered any property to any winner thereof.

895.056(2) (2) 

895.056(2)(a) (a) A wagerer may, within 3 months after putting up, staking or depositing property with a stakeholder or 3rd person, sue for and recover the property from the stakeholder or 3rd person whether the property has been lost or won or whether it has been delivered over by the stakeholder or 3rd person to the winner.

895.056(2)(b) (b) A wagerer may, within 6 months after any delivery by the wagerer or the stakeholder of the property put up, staked or deposited, sue for and recover the property from the winner thereof if the property has been delivered over to the winner.

895.056(3) (3) If the wagerer does not sue for and recover the property, which was put up, staked or deposited, within the time specified under sub. (1), any other person may, in the person’s behalf and the person’s name, sue for and recover the property for the use and benefit of the wagerer’s family or heirs, in case of the wagerer’s death. The suit may be brought against and property recovered from any of the following:

895.056(3)(a) (a) The stakeholder or a 3rd person if the property is still held by the stakeholder or 3rd person, within 6 months after the putting up, staking or depositing of the property.

895.056(3)(b) (b) The winner of the property, within one year from the delivery of the property to the winner.

895.056(4) (4) This section does not apply to any property that is permitted to be played, bet or wagered under chs. 562 to 569 or under state or federal laws relating to the conduct of gaming on Indian lands.

895.056 History History: 1993 a. 174, 486; 1995 a. 225; 1997 a. 27, 35.

895.057 895.057 Action against judicial officer for loss caused by misconduct. Any judicial officer who causes to be brought in a court over which the judicial officer presides any action or proceeding upon a claim placed in the judicial officer’s hands as agent or attorney for collection shall be liable in a civil action to the person against whom such action or proceeding was brought for the full amount of damages and costs recovered on such claim.

895.057 History History: 1993 a. 486.

895.06 895.06 Recovery of divisible personalty. When personal property is divisible and owned by tenants in common and one tenant in common shall claim and hold possession of more than the tenant’s share or proportion thereof his or her cotenant, after making a demand in writing, may sue for and recover the cotenant’s share or the value thereof. The court may direct the jury, if necessary, in any such action to find what specific articles or what share or interest belongs to the respective parties, and the court shall enter up judgment in form for one or both of the parties against the other, according to the verdict.

895.06 History History: 1993 a. 486.

895.065 895.065 Radioactive waste emergencies.

895.065(1) (1) Definitions. In this section:

895.065(1)(a) (a) “Association” means a relationship in which one person controls, is controlled by or is under common control with another person.

895.065(1)(b) (b) “Company” means any partnership, joint-stock company, business trust or organized group of persons, whether incorporated or not, and any person acting as a receiver, trustee or other liquidator of a partnership, joint-stock company, business trust or organized group of persons. “Company” does not include a state or local governmental body.

895.065(1)(c) (c) “Control” means to possess, directly or indirectly, the power to direct or cause the direction of the management and policies of a company, whether that power is exercised through one or more intermediary companies, or alone, or in conjunction with, or by an agreement with, any other company, and whether that power is established through a majority or minority ownership or voting of securities, common directors, officers, stockholders, voting trusts, holding trusts, affiliated companies, contract or by any other direct or indirect means. “Control” includes owning, holding or controlling, directly or indirectly, at least 5 percent of the voting power in the election of directors of a company. “Control” has the same meaning as the terms “controlled by” and “under common control with”.

895.065(1)(d) (d) “Emergency provider” means any person who provides emergency care or facilities and includes emergency management.

895.065(1)(e) (e) “Harm” means:

895.065(1)(e)1. 1. Damage to property.

895.065(1)(e)2. 2. Personal physical injury, illness or death, including mental anguish or emotional harm attendant to the personal physical injury, illness or death.

895.065(1)(e)4. 4. Economic loss.

895.065(1)(e)5. 5. Environmental pollution, as defined in s. 299.01 (4).

895.065(1)(e)6. 6. Expenses incurred by an emergency provider in preparing for and responding to a nuclear incident that are not reimbursed under s. 292.11 (7) or that are not paid by another state under a mutual aid agreement or by a gift or grant.

895.065(1)(f) (f) “Nuclear incident” means any sudden or nonsudden release of ionizing radiation, as defined under s. 254.31 (3g), from radioactive waste being stored or disposed of in a waste repository or transported. “Nuclear incident” does not include any release of radiation from radioactive waste being transported under routine operations.

895.065(1)(g) (g) “Person” means any individual or company. “Person” includes the federal government.

895.065(1)(h) (h) “Radioactive waste” means radioactive waste, as defined in s. 293.25 (1) (b), and radioactive defense waste.

895.065(1)(i) (i) “Responsible party” means any person described under sub. (3) (a) 1. a. to d.

895.065(1)(j) (j) “Routine operations” means the operation of transportation equipment in a manner that is not subject to the requirements for immediate notice of incidents under 49 USC 1801 to 1811 or notice of discharge under s. 292.11 (2).

895.065(1)(k) (k) “Waste repository” means any system used or intended to be used to dispose of or store radioactive waste under 42 USC 10101 to 10226, including but not limited to a permanent disposal system, interim storage system, monitored retrievable storage system, defense waste storage system, away-from-reactor storage facility and a test and evaluation facility.

895.065(2) (2) Liability. All responsible parties are strictly liable, jointly and severally, for any harm caused by a nuclear incident.

895.065(3) (3) Rebuttable presumption.

895.065(3)(a) (a) In any action brought under sub. (2) to recover damages for harm claimed to be caused by a nuclear incident, it is presumed that the nuclear incident was a cause of the harm if the plaintiff produces evidence to the court sufficient to enable a reasonable person to find all of the following:

895.065(3)(a)1. 1. The defendant is any of the following:

895.065(3)(a)1.a. a. A person who is in any way responsible for the design, construction, operation or monitoring of the waste repository or transportation equipment from which the radiation was released in the nuclear incident.

895.065(3)(a)1.b. b. A person who owns the waste repository or transportation equipment from which the radiation was released in the nuclear incident.

895.065(3)(a)1.c. c. A person who produces, possesses, controls or owns radioactive waste stored or disposed of in the waste repository or transportation equipment from which the radiation was released in the nuclear incident.

895.065(3)(a)1.d. d. A person who has an association with any person described under subd. 1. a. to c.

895.065(3)(a)2. 2. The harm could reasonably have resulted from the nuclear incident.

895.065(3)(b) (b) A defendant in an action brought under sub. (2) may rebut the presumption under par. (a) by proving that:

895.065(3)(b)1. 1. The defendant is not a responsible party; or

895.065(3)(b)2. 2. The harm claimed to be caused by a nuclear incident could not have reasonably resulted from the nuclear incident.

895.065(4) (4) Court award. In issuing any final order in any action brought under this section in which the plaintiff prevails, the court shall award to the plaintiff the cost of the suit, including reasonable attorney and expert witness fees, and the damages sustained by the plaintiff.

895.065(5) (5) Construction. This section may not be deemed to have any effect upon the liability of any person for any harm caused by any incident which is not a nuclear incident.

895.065 History History: 1985 a. 29; 1989 a. 31; 1989 a. 56 s. 259; 1993 a. 27; 1995 a. 227, 247; 1999 a. 9; 2009 a. 42 ss. 153 to 156; Stats. 2009 s. 895.065.

895.07 895.07 Claims against contractors and suppliers.

895.07(1) (1) Definitions. In this section:

895.07(1)(a) (a) “Action” means a civil action or an arbitration under ch. 788.

895.07(1)(b) (b) “Association” means a homeowner’s association, condominium association under s. 703.02 (1m), unit owner’s association, or a nonprofit corporation created to own and operate portions of a planned community that may assess unit owners for the costs incurred in the performance of the association’s obligations.

895.07(1)(c) (c) “Claim” means a request or demand to remedy a construction defect caused by a contractor or supplier related to the construction or remodeling of a dwelling.

895.07(1)(d) (d) “Claimant” means the owner, tenant, or lessee of a dwelling, or an association, who has standing to sue a contractor or supplier regarding a construction defect.

895.07(1)(e) (e) “Construction defect,” in those cases when the contractor or supplier has provided a warranty to a consumer, means the definition of “defect” in the warranty. In all other cases, “construction defect” means a deficiency in the construction or remodeling of a dwelling that results from any of the following:

895.07(1)(e)1. 1. Defective material.

895.07(1)(e)2. 2. Violation of applicable codes.

895.07(1)(e)3. 3. Failure to follow accepted trade standards for workmanlike construction.

895.07(1)(f) (f) “Consumer” means a person who enters into a written or oral contract with a contractor to construct or remodel a dwelling.

895.07(1)(g) (g) “Contractor” means a person that enters into a written or oral contract with a consumer to construct or remodel a dwelling.

895.07(1)(h) (h) “Dwelling” means any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use. “Dwelling” includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements.