Chapter 895

895.46 Annotation Voting members of a commission created by two villages were public officers protected by sub. (1). 74 Atty. Gen. 208.

895.46 Annotation This section and s. 895.35 apply to actions for open meetings law violations to the same extent that they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating the open meetings law. 77 Atty. Gen. 177.

895.46 Annotation The University of Wisconsin has no authority to agree to hold harmless a county that incurs liability because of a university officer’s torts, but common law would require the officer to indemnify the county and statutory indemnification would require the state to indemnify the officer when acting in the scope of employment. 78 Atty. Gen. 1.

895.46 Annotation State Emergency Response Board Committee and Local Emergency Planning Committee subcommittee members appointed by a county board are entitled to indemnity for damage liability under this section and legal representation by the attorney general under s. 165.25. 81 Atty. Gen. 17.

895.46 Annotation Members of the Investment Board, Employee Trust Fund Board, Teachers Retirement Board, Wisconsin Retirement Board, Group Insurance Board, and Deferred Compensation Board are subject to the limitations on damages under s. 893.82 and are entitled to the state’s indemnification for liability under this section. OAG 2-06.

895.46 Annotation An assistant district attorney on furlough pursuant to executive order is entitled to representation and indemnification if the attorney is carrying out duties within the scope of employment. OAG 9-09.

895.46 Annotation This section may require indemnification for actions that are not intended to benefit the employer when those actions further the objectives of employment. Hibma v. Odegaard, 769 F.2d 1147 (1985).

895.46 Annotation Section 893.80 (4) bars direct suits against municipalities for the torts of their employees. It does not preclude suing the officer directly and using this section to indirectly recover from the municipality. Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (1990).

895.46 Annotation An employee can misuse or exceed the employee’s authority while still acting within the scope of employment. Graham, 915 F.2d 1085 (1990), exemplifies the principle that a police officer can grossly exceed the officer’s authority to use force and still be found to have acted within the scope of employment. Javier v. City of Milwaukee, 670 F.3d 823 (2012).

895.46 Annotation Sub. (1) does not prevent a state official from asserting “good faith” as a defense to a charge of infringement of civil rights. Clarke v. Cady, 358 F. Supp. 1156 (1973).

895.46 Annotation The purpose of this section is not to transform any suit against a state employee into a suit against the state, but to shield state employees from monetary loss in tort suits. Ware v. Percy, 468 F. Supp. 1266 (1979).

895.46 Annotation A county could not be held liable for a civil rights judgment against a county judge when the judgment held that the judge was not carrying out duties of the office at the relevant time. Harris v. County of Racine, 512 F. Supp. 1273 (1981).

895.46 Annotation If an employee is part of an inter-municipal team under s. 66.305 [now s. 66.0313], the agency requesting the team’s services is the de facto employer for purposes of indemnification under this section. Liebenstein v. Crowe, 826 F. Supp. 1174 (1992).

895.46 Annotation A sheriff represents the county when enforcing the law. Sovereign immunity for state officials under the 11th amendment to the U.S. Constitution does not apply. Abraham v. Piechowski, 13 F. Supp. 2d 870 (1998).

895.463 895.463 Zoning ordinances. In any matter relating to a zoning ordinance or shoreland zoning ordinance enacted or enforced by a city, village, town, or county, the court shall resolve an ambiguity in the meaning of a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.

895.463 History History: 2015 a. 391.

895.47 895.47 Indemnification of the Wisconsin State Agencies Building Corporation and the Wisconsin State Public Building Corporation. If the Wisconsin State Agencies Building Corporation or the Wisconsin State Public Building Corporation is the defendant in an action or special proceeding in its capacity as owner of facilities occupied by any department or agents of any department of state government, the judgment as to damages and costs shall be paid by the state from the appropriation made under s. 20.865 (1) (fm). The state, when it does not provide legal counsel to the defendant, its members, officers or employees, shall pay reasonable attorney fees and costs of defending the action regardless of the results of the litigation, unless the court or jury finds that the member, officer or employee did not act within the scope of that person’s employment. Failure by the defendant to give notice to the department of justice of an action or special proceeding commenced against it, its members, officers or employees as soon as reasonably possible shall bar recovery by the defendant, its members, officers or employees from the state under this section. Attorney fees and expenses may not be recovered if the state offers the member, officer or employee legal counsel and the offer is refused.

895.47 History History: 1977 c. 344, 447.

895.472 895.472 Indemnification of a financial institution. A financial institution, as defined in s. 943.80 (2), that compensates a customer for a pecuniary loss resulting from a financial crime, as defined in s. 943.80 (1), or assumes the loss, may bring a civil action against the person who committed the crime to recover the amount of the loss, any other damages incurred by the financial institution as a result of the crime, and the costs incurred to bring the action, including attorney’s fees.

895.472 History History: 2005 a. 212 s. 2; 2007 a. 97 s. 239.

subch. II of ch. 895 SUBCHAPTER II

EXEMPTIONS FROM, AND LIMITATIONS ON, LIABILITY

895.475 895.475 Exemption from civil liability for furnishing safety inspection or advisory services. The furnishing of, or failure to furnish, safety inspection or advisory services intended to reduce the likelihood of injury, death or loss shall not subject a state officer, employee or agent, or an insurer, the insurer’s agent or employee undertaking to perform such services as an incident to insurance, to liability for damages from injury, death or loss occurring as a result of any act or omission in the course of the safety inspection or advisory services. This section shall not apply if the active negligence of the state officer, employee or agent, or of the insurer, the insurer’s agent or employee created the condition that was the proximate cause of injury, death or loss. This section shall not apply to an insurer, the insurer’s agent or employee performing the safety inspection or advisory services when required to do so under the provisions of a written service contract.

895.475 History History: 1991 a. 39; 2005 a. 155 s. 42; Stats. 2005 s. 895.475.

895.475 Annotation A “written service contract” is a contract that obligates the insurer to provide loss control services to an insured. Samuels Recycling Co. v. CNA Insurance Cos., 223 Wis. 2d 233, 588 N.W.2d 385 (Ct. App. 1998), 97-3511.

895.475 Annotation This section does not provide immunity from liability for a post-loss claim investigation performed by or on behalf of an insurance company pursuant to an insurance contract. This exemption from civil liability applies when an insurer voluntarily inspects an insured’s property to ensure that it is safe and up-to-code, not when it arrives on the scene after the fact to adjust the insured’s post-loss insurance claim based on its contractual obligations to do so. The very use of the terms “safety inspection” and “advisory services,” as well as the exclusion for contractually obligated services, clearly indicates that this section is forward-looking, involving voluntary loss prevention services. Cincinnati Insurance Co. v. Ropicky, 2021 WI App 25, 397 Wis. 2d 196, 959 N.W.2d 356, 20-0791.

895.476 895.476 Civil liability exemption; exposure to the novel coronavirus SARS-CoV-2 or COVID-19.

895.476(1) (1) In this section:

895.476(1)(a) (a) “COVID-19” means the infection caused by the novel coronavirus SARS-CoV-2 or by any viral strain originating from SARS-CoV-2, and conditions associated with the infection.

895.476(1)(b) (b) “Entity” means a partnership, corporation, association, governmental entity, tribal government, tribal entity, or other legal entity, including a school, institution of higher education, or nonprofit organization. “Entity” includes an employer or business owner, employee, agent, or independent contractor of the entity, regardless of whether the person is paid or an unpaid volunteer. “Entity” includes an employer covered under ch. 108.

895.476(2) (2) Beginning March 1, 2020, an entity is immune from civil liability for the death of or injury to any individual or damages caused by an act or omission resulting in or relating to exposure, directly or indirectly, to the novel coronavirus identified as SARS-CoV-2 or COVID-19 in the course of or through the performance or provision of the entity’s functions or services.

895.476(3) (3) Subsection (2) does not apply if the act or omission involves reckless or wanton conduct or intentional misconduct.

895.476(4) (4) Immunity under this section is in addition to, not in lieu of, other immunity granted by law, and nothing in this section limits immunity granted under any other provision of law, including immunity granted under s. 893.80 (4).

895.476 History History: 2021 a. 4.

895.478 895.478 Civil liability exemption; opioid antagonists.

895.478(1) (1) Definitions. In this section:

895.478(1)(a) (a) “Administer” has the meaning given in s. 118.29 (1) (a).

895.478(1)(b) (b) “Health care professional” has the meaning given in s. 118.29 (1) (c).

895.478(1)(c) (c) “High degree of negligence” has the meaning given in s. 118.29 (1) (d).

895.478(1)(d) (d) “Opioid antagonist” has the meaning given in s. 450.01 (13v).

895.478(1)(e) (e) “Opioid-related drug overdose” has the meaning given in s. 256.40 (1) (d).

895.478(1)(f) (f) “Residence hall director” means the individual employed by any of the following to reside at a residence hall for students and oversee the management and operation of the hall:

895.478(1)(f)1. 1. The University of Wisconsin System.

895.478(1)(f)2. 2. A technical college district.

895.478(1)(f)3. 3. The governing body of a private nonprofit institution of higher education located in this state.

895.478(2) (2) Residence hall directors.

895.478(2)(am) (am) Notwithstanding chs. 441, 447, 448, and 450, a residence hall director may administer an opioid antagonist to any student or other person who appears to be undergoing an opioid-related drug overdose if all of the following are satisfied:

895.478(2)(am)1. 1. The residence hall director has received training on the administration of opioid antagonists that is approved by his or her employer specified in sub. (1) (f) 1., 2., or 3.

895.478(2)(am)2. 2. As soon as practicable after administering the opioid antagonist, the residence hall director reports the drug overdose by dialing the telephone number “911” or, in an area in which the telephone number “911” is not available, the telephone number for an emergency medical service provider.

895.478(2)(bm) (bm) A residence hall director is immune from civil liability for his or her acts or omissions in administering an opioid antagonist under par. (am) unless the act or omission constitutes a high degree of negligence. This paragraph does not apply to a residence hall director who is a health care professional.

895.478(2)(cm) (cm) An employer specified in sub. (1) (f) 1., 2., or 3. who approves training required under par. (am) 1. for the administration of opioid antagonists by a residence hall director is immune from civil liability for the act of approval unless it constitutes a high degree of negligence.

895.478(3m) (3m) Elementary and secondary schools. An elementary or secondary school and its designated school personnel, and a physician, advanced practice nurse prescriber, or physician assistant who provides or administers an opioid antagonist, are not liable for any injury that results from the opioid antagonist, regardless of whether authorization was given by the pupil’s parent or guardian or by the pupil’s physician, advanced practice nurse prescriber, or physician assistant, unless the injury is the result of an act or omission that constitutes gross negligence or willful or wanton misconduct. The immunity from liability provided under this subsection is in addition to and not in lieu of that provided under s. 895.48.

895.478 History History: 2017 a. 29; 2023 a. 194.

895.48 895.48 Civil liability exemption; emergency medical care.

895.48(1) (1) Except as provided in sub. (1g), any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care.

895.48(1g) (1g) The immunity described in sub. (1) and s. 450.11 (1i) (c) 3. does not extend when employees trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, enroute to a hospital or other institution equipped with hospital facilities, or at a physician’s office.

895.48(1m) (1m) 

895.48(1m)(a) (a) Except as provided in par. (b), any physician, podiatrist, or athletic trainer licensed under ch. 448, physician assistant who is licensed under subch. IX of ch. 448 or who holds a compact privilege under subch. XIII of ch. 448, naturopathic doctor licensed under ch. 466, chiropractor licensed under ch. 446, dentist or dental therapist who is licensed under subch. I of ch. 447 or who holds a compact privilege under subch. II of ch. 447, emergency medical services practitioner licensed under s. 256.15, emergency medical responder certified under s. 256.15 (8), registered nurse licensed under ch. 441, massage therapist or bodywork therapist licensed under ch. 460, or naturopathic doctor licensed under ch. 466 who renders voluntary health care to a participant in an athletic event or contest sponsored by a nonprofit corporation, as defined in s. 66.0129 (6) (b), a private school, as defined in s. 115.001 (3r), a tribal school, as defined in s. 115.001 (15m), a public agency, as defined in s. 46.856 (1) (b), or a school, as defined in s. 609.655 (1) (c), is immune from civil liability for his or her acts or omissions in rendering that care if all of the following conditions exist:

895.48 Note NOTE: Par. (a) (intro.) is shown as amended by 2023 Wis. Acts 81, 87, and 88 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

895.48(1m)(a)1. 1. The health care is rendered at the site of the event or contest, during transportation to a health care facility from the event or contest, or in a locker room or similar facility immediately before, during or immediately after the event or contest.

895.48(1m)(a)2. 2. The physician, naturopathic doctor, podiatrist, athletic trainer, chiropractor, dentist, dental therapist, emergency medical services practitioner, as defined in s. 256.01 (5), emergency medical responder, as defined in s. 256.01 (4p), physician assistant, registered nurse, massage therapist or bodywork therapist does not receive compensation for the health care, other than reimbursement for expenses.

895.48(1m)(b) (b) Paragraph (a) does not apply to health care services provided by a volunteer health care provider under s. 146.89.

895.48(4) (4) 

895.48(4)(ag) (ag) In this subsection:

895.48(4)(ag)1. 1. “Cardiac arrest” means the sudden cessation of cardiac function and the disappearance of arterial blood pressure that connote ventricular fibrillation or pulseless ventricular tachycardia.

895.48(4)(ag)2. 2. “Pulseless ventricular tachycardia” means a disturbance in the normal rhythm of the heart that is characterized by rapid electrical activity of the heart with no cardiac output.

895.48(4)(am) (am) Any of the following, other than an emergency medical services practitioner or an emergency medical responder — defibrillation, is immune from civil liability for the acts or omissions of a person in rendering in good faith emergency care by use of an automated external defibrillator to an individual who appears to be in cardiac arrest:

895.48(4)(am)1. 1. The person who renders the care.

895.48(4)(am)2. 2. The owner of the automated external defibrillator.

895.48(4)(am)3. 3. The person who provides the automated external defibrillator for use, if the person ensures that the automated external defibrillator is maintained and tested in accordance with any operational guidelines of the manufacturer.

895.48(4)(am)4. 4. Any person who provides training in the use of an automated external defibrillator to the person who renders care.

895.48(4)(b) (b) The immunity specified in par. (am) does not extend to any of the following:

895.48(4)(b)1. 1. A person whose act or omission resulting from the use or the provision for use of the automated external defibrillator constitutes gross negligence.

895.48(4)(b)2. 2. A health care professional who renders emergency care for compensation and within the scope of his or her usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of an emergency or accident, enroute to a hospital or other institution equipped with hospital facilities or at a physician’s office.

895.48 History History: 1977 c. 164; 1987 a. 14; 1989 a. 31; 1993 a. 109; 1995 a. 227; 1997 a. 67, 156, 191; 1999 a. 7, 9, 32, 56, 186; 2001 a. 74; 2003 a. 33; 2005 a. 155, 188, 486; 2007 a. 130; 2009 a. 113, 302, 355; 2011 a. 260; 2013 a. 200; 2017 a. 12; 2021 a. 130; 2023 a. 81, 87, 88; s. 13.92 (2) (i).

895.48 Annotation Whatever the precise scope of “scene of any emergency or accident” in sub. (1), the phrase is sufficiently broad to include the defendant’s home when the injured, bleeding plaintiff arrived after being hurt in an incident involving an all-terrain vehicle in nearby woods. In the circumstances of the case, “emergency care” under sub. (1) refers to the initial evaluation and immediate assistance, treatment, and intervention rendered to the plaintiff during the period before care could be transferred to professional medical personnel. Mueller v. McMillan Warner Insurance Co., 2006 WI 54, 290 Wis. 2d 571, 714 N.W.2d 183, 05-0121.

895.48 Annotation There are three requirements before sub. (1) relieves a person from liability: 1) emergency care must be rendered at the scene of the emergency; 2) the care rendered must be emergency care; and 3) any emergency care must be rendered in good faith. Clayton v. American Family Mutual Insurance Co., 2007 WI App 228, 305 Wis. 2d 766, 741 N.W.2d 297, 07-0051.

895.48 Annotation Discussing the “Good Samaritan” law. 67 Atty. Gen. 218.

895.48 Annotation Incidental benefits received by volunteer members of the National Ski Patrol in exchange for rendering emergency care to disabled skiers may result in a loss of civil liability immunity under the Good Samaritan law. 79 Atty. Gen. 194.

895.48 Annotation The Good Samaritan Statute. Lieb. 62 MLR 469 (1979).

895.48 Annotation The Good Samaritan Statute: Civil Liability Exemptions for Emergency Care. Szymanski. Wis. Law. July 2007.

895.4801 895.4801 Immunity for health care providers during COVID-19 emergency.

895.4801(1) (1) Definitions. In this section:

895.4801(1)(a) (a) “Health care professional” means an individual licensed, registered, or certified by the medical examining board under subch. II of ch. 448 or the board of nursing under ch. 441.

895.4801(1)(b) (b) “Health care provider” has the meaning given in s. 146.38 (1) (b) and includes an adult family home, as defined in s. 50.01 (1).

895.4801(2) (2) Immunity. Subject to sub. (3), any health care professional, health care provider, or employee, agent, or contractor of a health care professional or health care provider is immune from civil liability for the death of or injury to any individual or any damages caused by actions or omissions that satisfy all of the following:

895.4801(2)(a) (a) The action or omission is committed while the professional, provider, employee, agent, or contractor is providing services during the state of emergency declared under s. 323.10 on March 12, 2020, by executive order 72, or the 60 days following the date that the state of emergency terminates.

895.4801(2)(b) (b) The actions or omissions relate to health services provided or not provided in good faith or are substantially consistent with any of the following:

895.4801(2)(b)1. 1. Any direction, guidance, recommendation, or other statement made by a federal, state, or local official to address or in response to the emergency or disaster declared as described under par. (a).