Chapter 895

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.

895.447 Annotation This section did not void an indemnity clause in a contract. Gerdmann v. United States Fire Insurance Co., 119 Wis. 2d 367, 350 N.W.2d 730 (Ct. App. 1984).

895.447 Annotation This section did not void a subrogation waiver in a contract because the waiver did not limit or eliminate tort liability. “Tort liability” is the legal obligation or responsibility to another resulting from a civil wrong or injury for which a remedy may be obtained. The subrogation waiver in this case did not limit or eliminate the legal responsibility of the contractors to the property owner for the contractors’ negligent acts. Instead, the subrogation waiver waived the property owner’s right to recover damages from the contractors for their wrongful acts to the extent those damages were covered by a property insurance policy. Collection of damages does not equate with liability. Rural Mutual Insurance Co. v. Lester Buildings, LLC, 2019 WI 70, 387 Wis. 2d 414, 929 N.W.2d 180, 16-1837.

895.448 895.448 Safety devices on farm equipment, ordinary negligence.

895.448(1) (1) In this section:

895.448(1)(a) (a) “Farm equipment” means a tractor or other machine used in the business of farming.

895.448(1)(b) (b) “Safety device” means a guard, shield or other part that has the purpose of preventing injury to humans.

895.448(2) (2) If a person in the business of selling or repairing farm equipment fabricates a safety device and installs the safety device on used farm equipment, after determining either that the farm equipment was not originally equipped with such a safety device or that a replacement is not available from the original manufacturer or from a manufacturer of replacements, and notifies the owner or purchaser of the farm equipment that the person fabricated the safety device, the person is not liable for claims founded in tort for damages arising from the safety device unless the claimant proves, by a preponderance of the evidence, that a cause of the claimant’s harm was the failure to use reasonable care with respect to the design, fabrication, inspection, condition or installation of, or warnings relating to, the safety device.

895.448 History History: 1993 a. 455; 2005 a. 155 s. 50; Stats. 2005 s. 895.448.

895.449 895.449 Action for loss caused by failure to pay for gasoline or diesel fuel.

895.449(1) (1) In this section:

895.449(1)(a) (a) “Association” means a membership organization whose membership is composed of retail businesses that sell gasoline or diesel fuel.

895.449(1)(b) (b) “Fuel retailer” means a person who suffers a loss as the result of a violation of s. 943.21 (1m) (d).

895.449(1)(c) (c) “Vehicle owner” means a person who holds the legal title of the vehicle that received gasoline or diesel fuel involved in a violation of s. 943.21 (1m) (d).

895.449(2) (2) Any fuel retailer has a cause of action against a vehicle owner whose vehicle was involved in a violation of s. 943.21 (1m) (d). The fuel retailer may provide an association with an affidavit specifying the time and date that the violation occurred, the registration plate number of the vehicle that received the gasoline or diesel fuel, and the retail value of gasoline or diesel fuel involved in the violation.

895.449(3) (3) Upon receipt by an association of an affidavit under sub. (2), that association may obtain from the department of transportation, based on the registration plate number of the motor vehicle that received the gasoline or diesel fuel in violation of s. 943.21 (1m) (d), identifying information regarding the owner of that motor vehicle and may forward the identifying information to the person who provided the affidavit under sub. (2).

895.449(4) (4) The fuel retailer may send a letter by 1st class mail to the vehicle owner at the address obtained under sub. (3), requesting payment of the amount owed for the unpaid gasoline or diesel fuel, plus a service fee that does not exceed $30. The letter shall include the time and date of the violation, the registration plate number of the vehicle that received the gasoline or diesel fuel, and a statement that if the vehicle owner fails to pay the amount demanded within 30 days of receipt of the letter, the fuel retailer may commence a court action to collect that amount. If a vehicle owner fails to make the payment owed within 30 days of his or her receipt of the letter, the fuel retailer may commence an action in circuit court to collect the amount demanded.

895.449(5) (5) If the fuel retailer prevails in an action brought under this section, the fuel retailer shall be entitled to the amount of the loss incurred, the $30 service fee, and court costs.

895.449 History History: 2011 a. 186.

895.45 895.45 Service representatives for adult abusive conduct complainants.

895.45(1) (1) Definitions. In this section:

895.45(1)(a) (a) “Abusive conduct” means domestic abuse, as defined under s. 49.165 (1) (a), 813.12 (1) (am), or 968.075 (1) (a), harassment, as defined under s. 813.125 (1) (am) 4., sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, child abuse, as defined under s. 813.122 (1) (a), or child abuse under ss. 948.02 to 948.11.

895.45(1)(b) (b) “Complainant” means an adult who alleges that he or she was the subject of abusive conduct or who alleges that a crime has been committed against him or her.

895.45(1)(c) (c) “Service representative” means an individual member of an organization or victim assistance program who provides counseling or support services to complainants or petitioners and charges no fee for services provided to a complainant under sub. (2) or to a petitioner under s. 813.122.

895.45(2) (2) Right to be present. A complainant has the right to select a service representative to attend, with the complainant, hearings, depositions and court proceedings, whether criminal or civil, and all interviews and meetings related to those hearings, depositions and court proceedings, if abusive conduct is alleged to have occurred against the complainant or if a crime is alleged to have been committed against the complainant and if the abusive conduct or the crime is a factor under s. 767.41 or is a factor in the complainant’s ability to represent his or her interest at the hearing, deposition or court proceeding. The complainant shall notify the court orally, or in writing, of that selection. A service representative selected by a complainant has the right to be present at every hearing, deposition and court proceeding and all interviews and meetings related to those hearings, depositions and court proceedings that the complainant is required or authorized to attend. The service representative selected by the complainant has the right to sit adjacent to the complainant and confer orally and in writing with the complainant in a reasonable manner during every hearing, deposition or court proceeding and related interviews and meetings, except when the complainant is testifying or is represented by private counsel. The service representative may not sit at counsel table during a jury trial. The service representative may address the court if permitted to do so by the court.

895.45(3) (3) Failure to exercise right not grounds for appeal. The failure of a complainant to exercise a right under this section is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.

895.45 History History: 1991 a. 276; 1995 a. 220; 2001 a. 109; 2005 a. 155 s. 64; Stats. 2005 s. 895.45; 2005 a. 443 s. 265; 2007 a. 20; 2015 a. 253; 2021 a. 76.

895.453 895.453 Payments of chiropractic services from attorney contingency fees.

895.453(1) (1) In this section:

895.453(1)(a) (a) “Chiropractor” means a person licensed under ch. 446.

895.453(1)(b) (b) “Motor vehicle” means a vehicle, including a combination of 2 or more vehicles or an articulated vehicle, which is self-propelled, except a vehicle operated exclusively on a rail.

895.453(2) (2) Notwithstanding s. 803.03, if all of the following conditions exist, fees for chiropractic services provided to an injured person shall be paid out of the amount of fees due to his or her attorney under the contingency fee arrangement made between the person and the attorney:

895.453(2)(a) (a) The person is injured as the result of a motor vehicle accident.

895.453(2)(b) (b) The services were provided by a chiropractor because of the injuries arising from the motor vehicle accident.

895.453(2)(c) (c) The person is represented by an attorney under a contingency fee arrangement.

895.453(2)(d) (d) The person receives an amount under a settlement agreement that is less than his or her damages.

895.453(2)(e) (e) Prior to the person’s acceptance of the settlement agreement, the chiropractor has not been paid for his or her services and has provided written notification to the person’s attorney of the services that were provided to the person.