Chapter 895

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.

895.453(3) (3) Except as provided in sub. (4), if the conditions under sub. (2) are met, the distribution of the amount due under the contingency fee arrangement shall be allocated on a pro rata basis between the person’s attorney and each chiropractor who provided services, based on the percentage obtained by comparing the outstanding fees owed to the attorney and each chiropractor to the aggregate outstanding attorney and chiropractic fees.

895.453(4) (4) This section does not apply if any of the following exist:

895.453(4)(a) (a) The chiropractor is eligible for payment for the services provided to the person under any health insurance contract or self-insured health plan.

895.453(4)(b) (b) The chiropractor is eligible for payment for the services provided to the person under any governmental health plan or program, including Medicaid or Medicare.

895.453 History History: 2011 a. 32.

895.455 895.455 Limits on recovery by prisoners. A prisoner, as defined in s. 801.02 (7) (a) 2., may not recover damages for mental or emotional injury unless the prisoner shows that he or she has suffered a physical injury as a result of the same incident that caused the mental or emotional injury.

895.455 History History: 1997 a. 133; 2005 a. 155 s. 66; Stats. 2005 s. 895.455.

895.457 895.457 Limiting felon’s right to damages.

895.457(1) (1) In this section:

895.457(1)(a) (a) “Crime” means a crime under the laws of this state or under federal law.

895.457(1)(b) (b) “Damages” means damages for an injury to real or personal property, for death, or for personal injury.

895.457(1)(c) (c) “Felony” means a felony under the laws of this state or under federal law.

895.457(1)(d) (d) “Victim” means a person against whom an act constituting a felony was committed.

895.457(2) (2) No person may recover damages from any of the following persons for injury or death incurred while committing, or as a result of committing, an act that constituted a felony, if the person was convicted of a felony for that act:

895.457(2)(a) (a) A victim of that felony.

895.457(2)(b) (b) An individual other than a victim of that felony who assisted or attempted to assist in the prevention of the act, who assisted or attempted to assist in the protection of the victim, or who assisted or attempted to assist in the apprehension or detention of the person committing the act unless the individual who assisted or attempted to assist is convicted of a crime as a result of his or her assistance or attempted assistance.

895.457(3) (3) This section does not prohibit a person from recovering damages for death or personal injury resulting from a device used to provide security that is intended or likely to cause great bodily harm, as defined in s. 939.22 (14), or death.

895.457(4) (4) 

895.457(4)(a) (a) Any applicable statute of limitations for an action to recover damages against a person described under sub. (2) (a) or (b) for injury or death incurred while committing, or as a result of committing, an act that constituted a felony is tolled during the period beginning with the commencement of a criminal proceeding charging the person who committed the act with a felony for that act and ending with the final disposition, as defined in s. 893.13 (1), of the criminal proceeding.

895.457(4)(b) (b) Any applicable statute of limitations for an action to recover damages from an individual described under sub. (2) (b) for injury or death incurred while committing, or as a result of committing, an act that constituted a felony is tolled during the period beginning with the commencement of a criminal proceeding charging the individual described under sub. (2) (b) with a crime as a result of his or her assistance or attempt to assist and ending with the final disposition, as defined in s. 893.13 (1), of the criminal proceeding. This paragraph does not apply if a criminal proceeding described in par. (a) does not result in a felony conviction and there is no other criminal proceeding described under par. (a) pending.

895.457(5) (5) A court may stay a civil action described under sub. (2) until the final disposition of a criminal proceeding described under sub. (4).

895.457 History History: 2003 a. 87; 2005 a. 155 s. 68; Stats. 2005 s. 895.457.

895.46 895.46 State and political subdivisions thereof to pay judgments taken against officers.

895.46(1) (1) 

895.46(1)(a) (a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee, except as provided in s. 146.89 (4), in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be covered by this section while acting within the scope of their agency. Regardless of the results of the litigation the governmental unit, if it does not provide legal counsel to the defendant officer or employee, shall pay reasonable attorney fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employee did not act within the scope of employment. Except as provided in s. 146.89 (4), the duty of a governmental unit to provide or pay for the provision of legal representation does not apply to the extent that applicable insurance provides that representation. If the employing state agency or the attorney general denies that the state officer, employee or agent was doing any act growing out of or committed in the course of the discharge of his or her duties, the attorney general may appear on behalf of the state to contest that issue without waiving the state’s sovereign immunity to suit. Failure by the officer or employee to give notice to his or her department head of an action or special proceeding commenced against the defendant officer or employee as soon as reasonably possible is a bar to recovery by the officer or employee from the state or political subdivision of reasonable attorney fees and costs of defending the action. The attorney fees and expenses shall not be recoverable if the state or political subdivision offers the officer or employee legal counsel and the offer is refused by the defendant officer or employee. If the officer, employee or agent of the state refuses to cooperate in the defense of the litigation, the officer, employee or agent is not eligible for any indemnification or for the provision of legal counsel by the governmental unit under this section.

895.46(1)(am) (am) If a court determines that costs are awardable to an employee or official who has been provided representation by a governmental unit under par. (a), the court shall award those costs to the unit of government that provided the representation.

895.46(1)(b) (b) Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:

895.46(1)(b)1. 1. Satisfactorily completed or are currently enrolled in the preparatory program of law enforcement training under s. 165.85 (4) (a) 1. and, if applicable, the recertification programs under s. 165.85 (4) (a) 7., or have provided evidence of equivalent law enforcement training and experience as determined by the law enforcement standards board; or

895.46(1)(b)2. 2. At least 5 years of full-time employment as a law enforcement officer, as defined in s. 165.85 (2) (c).

895.46(1)(c) (c) This subsection does not apply to any action or special proceeding brought by a county against its county sheriff if the action or proceeding is determined in favor of the county.

895.46(1)(d) (d) On and after March 1, 1983, all persons employed as deputy sheriffs, as defined in s. 40.02 (48) (b) 3., are covered by this subsection. The county board shall adopt written policies for payments under this subsection on behalf of any other person, provided that person has satisfied the minimum standards of the law enforcement standards board, who serves at the discretion of the sheriff as a law enforcement officer as defined in s. 165.85 (2) (c), and the county may make the payments upon approval by the county board.

895.46(1)(dm) (dm) All security officers employed by the department of military affairs who are deputed under s. 59.26 (4m) are covered by this section while acting within the scope of their duties assigned under s. 59.26 (4m), as if they were state employees acting within the scope of their state employment.

895.46(1)(e) (e) Any nonprofit corporation operating a museum under a lease agreement with the state historical society, and all officers, directors, employees and agents of such a corporation, and any local emergency planning committee appointed by a county board under s. 59.54 (8) (a) and all members of such a committee, are state officers, employees or agents for the purposes of this subsection.

895.46(2) (2) Any town officer held personally liable for reimbursement of any public funds paid out in good faith pursuant to the directions of electors at any annual or special town meeting shall be reimbursed by the town for the amount of the judgment for damages and costs entered against the town officer.

895.46(3) (3) The protection afforded by this section shall apply to any state officer, employee or agent while operating a state-owned vehicle for personal use in accordance with s. 20.916 (7).

895.46(4) (4) The protection afforded by this section applies to members of the board of governors created under s. 619.04 (3), members of a committee or subcommittee of that board of governors, members of the injured patients and families compensation fund peer review council created under s. 655.275 (2), and persons consulting with that council under s. 655.275 (5) (b), with respect to judgments, attorney fees, and costs awarded before, on, or after April 25, 1990.

895.46(5) (5) The protection afforded by this section applies to any of the following:

895.46(5)(a) (a) A volunteer health care provider who provides services under s. 146.89, except a volunteer health care provider described in s. 146.89 (5) (a), for the provision of those services.

895.46(5)(am) (am) A practitioner who provides services under s. 257.03 and a health care facility on whose behalf services are provided under s. 257.04.

895.46(5)(b) (b) A physician under s. 251.07 or 252.04 (9) (b).

895.46(6) (6) The protection afforded by this section applies to any criminal action under s. 291.97 (2) or 293.87 (2) or under 7 USC 136L (b), 15 USC 2616 (b), 33 USC 1319 (c), 42 USC 2284, 6928 (d) and (e), 6973 (b), 6992 (b) and (c), 7413 (c), 9603 (b), 9606 (b) and 11045 (b) or 49 USC 5124 that is commenced against a state officer or state employee who is proceeded against in his or her official capacity or as an individual because of acts committed in the storage, transportation, treatment or disposal of hazardous substances, as defined in s. 289.01 (11), if that officer or employee is found to be acting within the scope of his or her employment and if the attorney general determines that the state officer or state employee acted in good faith. Regardless of the determination made by the attorney general, the protection afforded by this section applies if the state officer or agent is not found guilty of the criminal action commenced under this subsection. This protection includes the payment of reasonable attorney fees in defending the action and costs or fines arising out of the action.

895.46(7) (7) The protection afforded by this section does not apply to any law enforcement officer of another state acting in Wisconsin under an agreement authorized under s. 175.46.