Chapter 895

895.441(2)(a) (a) Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, counseling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact. Consent is not an issue in an action under this section, unless the sexual contact that is the subject of the action occurred more than 6 months after the psychotherapy, counseling, assessment or treatment ended.

895.441(2)(b) (b) Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1) and 815.05 (1g) (a), in an action brought under this section, the plaintiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff’s attorney shall supply the court the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.

895.441(2)(c) (c) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect:

895.441(2)(c)1. 1. A plaintiff who is using initials in an action under this section from annoyance, embarrassment, oppression or undue burden that would arise if any information identifying the plaintiff were made public.

895.441(2)(c)2. 2. A plaintiff in an action under this section from unreasonably long, repetitive or burdensome physical or mental examinations.

895.441(2)(c)3. 3. The confidentiality of information which under law is confidential, until the information is provided in open court in an action under this section.

895.441(3) (3) Punitive damages. A court or jury may award punitive damages to a person bringing an action under this section.

895.441(4) (4) Calculation of statute of limitations. An action under this section is subject to s. 893.585.

895.441(5) (5) Silence agreements. Any provision in a contract or agreement relating to the settlement of any claim by a patient against a therapist that limits or eliminates the right of the patient to disclose sexual contact by the therapist to a subsequent therapist, the department of safety and professional services, the department of health services, the injured patients and families compensation fund peer review council, or a district attorney is void.

895.441 History History: 1985 a. 275; 1987 a. 352; 1991 a. 160, 217; 1995 a. 27 s. 9126 (19); 1999 a. 85; 2003 a. 111; 2005 a. 155 s. 62; Stats. 2005 s. 895.441; 2007 a. 20 s. 9121 (6) (a); 2011 a. 32.

895.441 Annotation Under sub. (2), consent is not an issue, and, as such, an instruction regarding the victim’s contributory negligence was improper. Block v. Gomez, 201 Wis. 2d 795, 549 N.W.2d 783 (Ct. App. 1996), 94-1085.

895.441 Annotation This section grants no cause of action against a therapist’s employer. L.L.N. v. Clauder, 203 Wis. 2d 570, 552 N.W.2d 879 (Ct. App. 1996), 95-2084.

895.441 Annotation Reversed on other grounds. 209 Wis. 2d 674, 563 N.W.2d 434 (1997), 95-2084.

895.442 895.442 Sexual exploitation by a member of the clergy; action for.

895.442(1) (1) Definitions. In this section:

895.442(1)(a) (a) “Member of the clergy” has the meaning given in s. 48.981 (1) (cx).

895.442(1)(b) (b) “Religious organization” means an association, conference, congregation, convention, committee, or other entity that is organized and operated for a religious purpose and that is exempt from federal income tax under 26 USC 501 (c) (3) or (d) and any subunit of such an association, conference, congregation, convention, committee, or entity that is organized and operated for a religious purpose.

895.442(1)(c) (c) “Sexual contact” has the meaning given in s. 940.225 (5) (b).

895.442(2) (2) Cause of action.

895.442(2)(a) (a) Any person who suffers an injury as a result of sexual contact with a member of the clergy that occurs while the person is under the age of 18 may bring an action against the member of the clergy for all damages caused by that sexual contact.

895.442(2)(b) (b) Any person who may bring an action under par. (a) may bring an action against the religious organization that employed the member of the clergy for all damages caused by that sexual contact if, at the time that the sexual contact occurred, another employee of that religious organization whose duties included supervising that member of the clergy knew or should have known that the member of the clergy previously had sexual contact with a person under the age of 18 and failed to do all of the following:

895.442(2)(b)1. 1. Report that sexual contact under s. 48.981 (3).

895.442(2)(b)2. 2. Exercise ordinary care to prevent similar incidents from occurring.

895.442(2)(c) (c) Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1), and 815.05 (1g) (a), in an action brought under this section, the plaintiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff’s attorney shall supply the court the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.

895.442(2)(d) (d) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect any of the following:

895.442(2)(d)1. 1. A plaintiff who is using initials in an action under this section from annoyance, embarrassment, oppression, or undue burden that would arise if any information identifying the plaintiff were made public.

895.442(2)(d)2. 2. A plaintiff in an action under this section from unreasonably long, repetitive, or burdensome physical or mental examinations.

895.442(2)(d)3. 3. The confidentiality of information which under law is confidential, until the information is provided in open court in an action under this section.

895.442(3) (3) Consent. Consent is not an issue in an action under this section.

895.442(4) (4) Calculation of statute of limitations. An action under this section is subject to s. 893.587.

895.442(5) (5) Silence agreements. Any contract or agreement concerning the settlement of any claim under this section that limits or eliminates the right of the injured person to disclose the sexual contact described under sub. (2) to another member of the religious organization to which the member of the clergy under sub. (2) belongs, to a therapist, as defined in s. 895.441 (1) (e), to a person listed under s. 48.981 (2) (a), or to a district attorney, is void.

895.442 History History: 2003 a. 279; 2005 a. 155 s. 63; Stats. 2005 s. 895.442.

895.443 895.443 Physical injury, emotional distress, loss or damage suffered by members of certain groups; action for.

895.443(1) (1) If a person suffers physical injury to his or her person or emotional distress or damage to or loss of his or her property by reason of conduct that is prohibited under s. 943.012 and that causes damage to any property specified in s. 943.012 (1) to (4) or by reason of conduct that is grounds for a penalty increase under s. 939.645 (1), the person has a civil cause of action against the person who caused the physical injury, emotional distress, damage or loss.

895.443(2) (2) The burden of proof in a civil action under sub. (1) rests with the person who suffers the physical injury, emotional distress, damage or loss to prove his or her case by a preponderance of the credible evidence.

895.443(3) (3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover special and general damages, including damages for emotional distress; punitive damages; and costs, including all reasonable attorney fees and other costs of the investigation and litigation which were reasonably incurred.

895.443(4) (4) A person may bring a civil action under sub. (1) regardless of whether there has been a criminal action related to the physical injury, emotional distress, loss or damage under sub. (1) and regardless of the outcome of any such criminal action.

895.443(5) (5) This section does not limit the right of a person to recover from any parent or parents under s. 895.035.

895.443 History History: 1987 a. 348; 2003 a. 243; 2005 a. 155 s. 65; Stats. 2005 s. 895.443.

895.444 895.444 Injury caused by criminal gang activity; action for.

895.444(1) (1) Definitions. In this section:

895.444(1)(a) (a) “Criminal gang” has the meaning given in s. 939.22 (9).

895.444(1)(b) (b) “Criminal gang activity” has the meaning given in s. 941.38 (1) (b).

895.444(1)(c) (c) “Political subdivision” means a city, village, town or county.

895.444(2) (2) Civil cause of action.

895.444(2)(a) (a) The state, a school district or a political subdivision may bring an action in circuit court for any expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources if the expenditure of money by the state, a school district or a political subdivision is the result of criminal gang activity.

895.444(2)(b) (b) Any person who suffers physical injury or incurs property damage or loss resulting from any criminal gang activity has a cause of action for the actual damages sustained. The burden of proof in a civil action under this paragraph rests with the person who suffers the physical injury or property damage or loss to prove his or her case by a preponderance of the credible evidence.

895.444(2)(c) (c) The action may be brought against the criminal gang or against any member, leader, officer or organizer of a criminal gang who participates in a criminal gang activity or who authorizes, causes, orders, ratifies, requests or suggests a criminal gang activity. An action brought under this subsection shall also name as defendants the criminal gang and any criminal gang members that participated in the criminal gang activity. An action brought under this subsection may name, as a class of defendants, all unknown criminal gang members.

895.444(2)(d) (d) The plaintiff may bring a civil action under this subsection regardless of whether there has been a criminal action related to the injury, property damage or loss or expenditure of money under par. (a) or (b) and regardless of the outcome of that criminal action.

895.444(3) (3) Service of process. A summons may be served individually upon any member, leader, officer or organizer of a criminal gang by service as provided under s. 801.11 (1), (2), (5) or (6) where the claim sued upon arises out of or relates to criminal gang activity within this state sufficient to subject a defendant to personal jurisdiction under s. 801.05 (2) to (10). A judgment rendered after service under this subsection is a binding adjudication against the criminal gang.

895.444(4) (4) Injunctive relief, damages, costs and fees.

895.444(4)(a) (a) The court, upon the request of the state, a school district or a political subdivision, may grant an injunction restraining an individual from committing an act that would injure the state, a school district or a political subdivision or may order such other relief as the court determines is proper.

895.444(4)(b) (b) The court may order a criminal gang member to divest himself or herself of any interest or involvement in any criminal gang activity and may restrict a criminal gang member from engaging in any future criminal gang activity.

895.444(4)(c) (c) In addition to the costs allowed under s. 814.04, a final judgment in an action under sub. (2) (a) in favor of the plaintiff shall include compensatory damages for the expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources caused by the criminal gang activity and compensation for the costs of the investigation and prosecution and reasonable attorney fees.

895.444(4)(d) (d) In addition to the costs allowed under s. 814.04, a final judgment in an action under sub. (2) (b) in favor of the plaintiff shall include attorney fees and the costs of the investigation and litigation.

895.444(4)(e) (e) The final judgment in favor of the plaintiff in an action under sub. (2) (a) or (b) may include punitive damages assessed against a criminal gang leader, officer, organizer or member who is found to have participated in criminal gang activity.

895.444 History History: 1993 a. 98; 2005 a. 155 s. 67; Stats. 2005 s. 895.444.

895.445 895.445 Damage to certain machines; action for.

895.445(1) (1) An owner of a machine operated by the insertion of coins, currency, debit cards or credit cards that is damaged by a person acting with the intent to commit a theft from that machine may bring an action against the person.

895.445(2) (2) The owner has the burden of proving his or her case under sub. (1) by a preponderance of the credible evidence.

895.445(3) (3) If the owner prevails in a civil action under sub. (1), he or she may recover all of the following:

895.445(3)(a) (a) Treble damages.

895.445(3)(b) (b) Costs, including all reasonable attorney fees and other costs of the investigation and litigation that were reasonably incurred.

895.445(4) (4) An owner may bring a civil action under sub. (1) regardless of whether there has been a criminal action related to the damage under sub. (1) and regardless of the outcome of any such criminal action.

895.445 History History: 1995 a. 133; 2005 a. 155 s. 69; Stats. 2005 s. 895.445.

895.446 895.446 Property damage or loss caused by crime; action for.

895.446(1) (1) Any person who suffers damage or loss by reason of intentional conduct that occurs on or after November 1, 1995, and that is prohibited under s. 943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76, or by reason of intentional conduct that occurs on or after April 28, 1998, and that is prohibited under s. 943.201 or 943.203, or by reason of intentional conduct that occurs on or after July 1, 2004, and that is prohibited under s. 943.011, 943.012, or 943.017, has a cause of action against the person who caused the damage or loss.

895.446(2) (2) The burden of proof in a civil action under sub. (1) is with the person who suffers damage or loss to prove a violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76 by a preponderance of the credible evidence. A conviction under s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76 is not required to bring an action, obtain a judgment, or collect on that judgment under this section.

895.446(3) (3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following:

895.446(3)(a) (a) Actual damages, including the retail or replacement value of damaged, used, or lost property, whichever is greater, for a violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76.

895.446(3)(b) (b) All costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employee or agent of the victim.

895.446(3)(c) (c) Exemplary damages of not more than 3 times the amount awarded under par. (a). No additional proof is required under this section for an award of exemplary damages under this paragraph.

895.446(3m) (3m) 

895.446(3m)(a) (a) In this subsection, “plant” includes the material taken, extracted, or harvested from a plant, or a seed or other plant material that is being used or that will be used to grow or develop a plant.

895.446(3m)(b) (b) If the violation of s. 943.01 (1) involves the circumstances under s. 943.01 (2d), the court may award a prevailing plaintiff the reasonable attorney fees incurred in litigating the action and, when determining the damages recoverable under sub. (3), shall include the market value of the plant before the damage or destruction, and the costs of production, research, testing, replacement, and plant development directly related to the plant that has been damaged or destroyed.

895.446(4) (4) Any recovery under this section shall be reduced by the amount recovered as restitution under ss. 800.093 and 973.20 and ch. 938 for the same act or as recompense under s. 969.13 (5) (a) for the same act.

895.446(5) (5) No person may bring a cause of action under both this section and s. 95.195, 895.449, 943.212, 943.245 or 943.51 regarding the same incident or occurrence. If the plaintiff has a cause of action under both this section and s. 895.449, 943.212, 943.245 or 943.51 regarding the same incident or occurrence, the plaintiff may choose which action to bring. If the plaintiff has a cause of action under both this section and s. 95.195, the plaintiff must bring the action under s. 95.195.

895.446(6) (6) A person is not criminally liable under s. 943.30 for any action brought in good faith under this section.

895.446 History History: 1995 a. 27; 1997 a. 101; 2001 a. 16, 91; 2003 a. 36, 138; 2005 a. 155 s. 70; Stats. 2005 s. 895.446; 2005 a. 447 s. 1; 2007 a. 96; 2011 a. 186.

895.446 Annotation Civil theft under this section is an “other civil action” under s. 799.01 (1) (d), not an “action based in tort” under s. 799.01 (1) (cr). The use of the term “civil action” in this section to describe the cause for civil theft indicates that the cause may also be properly characterized as a “civil action” under s. 799.01. This statutory civil theft claim has been specifically distinguished from similar claims of conversion, which sound in tort. Estate of Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14-2420.

895.446 Annotation Attorney fees are included within the meaning of “costs of investigation and litigation” under sub. (3) (b) because Stathus, 2003 WI App 28, has long stood for that proposition and the legislature, despite taking other, subsequent action in this section, has not legislated so as to alter that interpretation. Estate of Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14-2420.

895.446 Annotation Current or continuing possession of property is not an element of a claim under this section and is not a requirement under general standing principles. Pagoudis v. Keidl, 2023 WI 27, 406 Wis. 2d 542, 988 N.W.2d 606, 20-0225.

895.446 Annotation Both conversion and civil theft under sub. (1) and s. 943.20 (1) (b) require the victim to have an ownership interest in the property converted or stolen. Under the agreement in this case, the plaintiff operated a brain injury center in the defendant’s nursing facility; the defendant handled all billing and collections for the services the plaintiff provided; and, through a process outlined in the agreement, the defendant remitted the funds collected to the plaintiff. However, the defendant failed to follow through on its obligations under the contract, redirecting the plaintiff’s funds to pay the defendant’s employees and other creditors instead. When one party receives funds from an outside source and is required to remit those funds to the other party, that is enough to create an ownership interest. Milwaukee Center for Independence, Inc. v. Milwaukee Health Care, LLC, 929 F.3d 489 (2019).

895.446 Annotation Under Wisconsin law, the economic loss doctrine does not bar recovery under s. 100.18, but it does bar recovery under s. 895.80 [now this section], at least under the facts of this case. Dow v. Poltzer, 364 F. Supp. 2d 931 (2005).

895.447 895.447 Certain agreements to limit or eliminate tort liability void.

895.447(1) (1) Any provision to limit or eliminate tort liability as a part of or in connection with any contract, covenant or agreement relating to the construction, alteration, repair or maintenance of a building, structure, or other work related to construction, including any moving, demolition or excavation, is against public policy and void.

895.447(2) (2) This section does not apply to any insurance contract or worker’s compensation plan.

895.447(3) (3) This section shall not apply to any provision of any contract, covenant or agreement entered into prior to July 1, 1978.

895.447 History History: 1977 c. 441; Stats. 1977 s. 895.47; 1977 c. 447; Stats. 1977 s. 895.49; 2005 a. 155 s. 49; Stats. 2005 s. 895.447.