Chapter 895

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).

895.4801(2)(b)2. 2. Any guidance published by the department of health services, the federal department of health and human services, or any divisions or agencies of the federal department of health and human services relied upon in good faith.

895.4801(2)(c) (c) The actions or omissions do not involve reckless or wanton conduct or intentional misconduct.

895.4801(3) (3) Applicability. This section does not apply if s. 257.03, 257.04, 323.41, or 323.44 applies.

895.4801 History History: 2019 a. 185.

895.4802 895.4802 Civil liability exemption; hazardous materials.

895.4802(1) (1) In this section:

895.4802(1)(a) (a) “Discharge” has the meaning given under s. 292.01 (3).

895.4802(1)(b) (b) “Hazardous substance” has the meaning given under s. 299.01 (6).

895.4802(1)(c) (c) “Hazardous substance prediction” means any declaration or estimate of the likely spread or impact of an actual discharge of a hazardous substance that is based on meteorological, mathematical, computer or similar models.

895.4802(1)(d) (d) “Hazardous substance predictor” means any person who makes a hazardous substance prediction pursuant to a contract or agreement with a public agency or pursuant to a contract or agreement with a person who possesses or controls hazardous substances for the purpose of assisting that person in supplying a public agency with a hazardous substance prediction in the event of an actual discharge of a hazardous substance.

895.4802(2) (2) Any person is immune from civil liability for his or her good faith acts or omissions related to assistance or advice which the person provides relating to an emergency or a potential emergency regarding either of the following:

895.4802(2)(a) (a) Mitigating or attempting to mitigate the effects of an actual or threatened discharge of a hazardous substance.

895.4802(2)(b) (b) Preventing or cleaning up or attempting to prevent or clean up an actual or threatened discharge of a hazardous substance.

895.4802(3) (3) The immunity under sub. (2) does not extend to any person:

895.4802(3)(a) (a) Whose act or omission causes in whole or in part the actual or threatened discharge and who would otherwise be liable for the act or omission;

895.4802(3)(b) (b) Who would be liable for the discharge under chs. 281 to 285 or 289 to 299 or any rule promulgated or permit or order issued under chs. 281 to 285 or 289 to 299;

895.4802(3)(c) (c) Whose act or omission constitutes gross negligence or involves reckless, wanton or intentional misconduct; or

895.4802(3)(d) (d) Who receives or expects to receive compensation, other than reimbursement for out-of-pocket expenses, for rendering the advice and assistance.

895.4802(4) (4) 

895.4802(4)(a) (a) Any hazardous substance predictor or any person who provides the technology to enable hazardous substance predictions to be made is immune from civil liability for his or her good faith acts or omissions in making that prediction or providing that technology.

895.4802(4)(b) (b) The good faith of any hazardous substance predictor or any person who provides the technology to make a prediction is presumed in any civil action. Any person who asserts that the acts or omissions under par. (a) were not made in good faith has the burden of proving that assertion by clear and convincing evidence.

895.4802(4)(c) (c) The immunity under par. (a) does not extend to any person described under sub. (3) (a), (b), or (c).

895.4802 History History: 2005 a. 155 ss. 45, 47; 2005 a. 347 s. 55.

895.4802 Note NOTE: 2005 Wis. Act 347, which affected this section, contains extensive explanatory notes.

895.4803 895.4803 Civil liability exemption; information concerning paternity. Any member of the staff of a hospital who is designated by the hospital and trained by the department of children and families under s. 69.14 (1) (cm) and who in good faith provides to a child’s available parents written information that is provided by the department of children and families and oral information or an audio or video presentation about statements acknowledging paternity as prescribed by the state registrar under s. 69.15 (3) (b) 3. and about the significance and benefits of, and alternatives to, establishing paternity, under the requirements of s. 69.14 (1) (cm), is immune from civil liability for his or her acts or omissions in providing that oral information or audio or video presentation and written information.

895.4803 History History: 2005 a. 155 ss. 46, 48; 2007 a. 20; 2017 a. 334.

895.481 895.481 Civil liability exemption; equine activities.

895.481(1) (1) In this section:

895.481(1)(a) (a) “Equine” means a donkey, hinny, horse, mule or pony.

895.481(1)(b) (b) “Equine activity” means any of the following:

895.481(1)(b)1. 1. Shows, fairs, competitions, performances or parades that involve any breeds of equines and any equine disciplines, including combined training, competitive trail riding, cutting, dressage, driving, endurance trail riding, English or western performance riding, grand prix jumping, horse racing, hunter and jumper shows, hunting, polo, pulling, rodeos, 3-day events and western games.

895.481(1)(b)2. 2. Equine training or teaching.

895.481(1)(b)3. 3. Boarding of equines.

895.481(1)(b)4. 4. Riding, inspecting or evaluating an equine belonging to another, regardless of whether the owner of the equine receives monetary or other consideration for the use of the equine or permits the riding, inspection or evaluation of the equine.

895.481(1)(b)5. 5. Riding, training or driving an equine or being a passenger on an equine.

895.481(1)(b)5d. 5d. Equine-assisted learning.

895.481(1)(b)5r. 5r. Equine-assisted psychotherapy.

895.481(1)(b)6. 6. Riding, training or driving a vehicle pulled by an equine or being a passenger on a vehicle pulled by an equine.

895.481(1)(b)7. 7. Assisting in the medical treatment of an equine.

895.481(1)(b)8. 8. Shoeing of an equine.

895.481(1)(b)9. 9. Assisting a person participating in an activity listed in subds. 1. to 8.

895.481(1)(c) (c) “Equine activity sponsor” means a person, whether operating for profit or nonprofit, who organizes or provides the facilities for an equine activity, including owners or operators of arenas, clubs, fairs, schools, stables and therapeutic riding programs.

895.481(1)(d) (d) “Equine professional” means a person engaged for compensation in the rental of equines or equine equipment or tack or in the instruction of a person in the riding or driving of an equine or in being a passenger upon an equine.

895.481(1)(e) (e) “Inherent risk of equine activities” means a danger or condition that is an integral part of equine activities, including all of the following:

895.481(1)(e)1. 1. The propensity of an equine to behave in a way that may result in injury or death to a person on or near it.

895.481(1)(e)2. 2. The unpredictability of an equine’s reaction to a sound, movement or unfamiliar object, person or animal.

895.481(1)(e)3. 3. A collision with an object or another animal.

895.481(1)(e)4. 4. The potential for a person participating in an equine activity to act in a negligent manner, to fail to control the equine or to not act within his or her ability.

895.481(1)(e)5. 5. Natural hazards, including surface and subsurface conditions.

895.481(1)(f) (f) “Property” means real property and buildings, structures and improvements on the real property.

895.481(1)(g) (g) “Spectator” means a person who attends or watches an equine activity but does not participate in the equine activity or perform any act or omission related to the equine activity that contributes to the injury or death of a participant in the equine activity.

895.481(2) (2) Except as provided in subs. (3) and (6), a person, including an equine activity sponsor or an equine professional, is immune from civil liability for acts or omissions related to his or her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities.

895.481(3) (3) The immunity under sub. (2) does not apply if the person seeking immunity does any of the following:

895.481(3)(a) (a) Provides equipment or tack that he or she knew or should have known was faulty and the faulty equipment or tack causes the injury or death.

895.481(3)(b) (b) Provides an equine to a person and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided based on the person’s representations of his or her ability.

895.481(3)(c) (c) Fails to conspicuously post warning signs of a dangerous inconspicuous condition known to him or her on the property that he or she owns, leases, rents or is otherwise in lawful control of or possession.

895.481(3)(d) (d) Acts in a willful or wanton disregard for the safety of the person.

895.481(3)(e) (e) Intentionally causes the injury or death.

895.481(3m) (3m) A person whose only involvement in an equine activity is as a spectator shall not be considered to be participating in the equine activity.

895.481(4) (4) Every equine professional shall post and maintain signs in a clearly visible location on or near stables, corrals or arenas owned, operated or controlled by the equine professional. The signs shall be white with black lettering, each letter a minimum of one inch in height, and shall contain the following notice: “Notice: A person who is engaged for compensation in the rental of equines or equine equipment or tack or in the instruction of a person in the riding or driving of an equine or in being a passenger upon an equine is not liable for the injury or death of a person involved in equine activities resulting from the inherent risks of equine activities, as defined in section 895.481 (1) (e) of the Wisconsin Statutes.”

895.481(5) (5) If an equine professional uses a written contract for the rental of equines or equine equipment or tack or for the instruction of a person in the riding, driving or being a passenger upon an equine, the contract shall contain the notice set forth in sub. (4) in clearly readable bold print of not less than the same size as the print used in the remainder of the contract.

895.481(6) (6) This section does not limit the liability of a person under any applicable products liability laws.

895.481(7) (7) This section does not limit the immunity created under s. 895.52.

895.481 History History: 1995 a. 256; 2015 a. 66.

895.481 Annotation The application of this section is not limited to equine professionals. The exception to immunity under sub. (3) (a) for faulty equipment did not apply when no connection between the equipment and the plaintiff’s injuries was shown. Kangas v. Perry, 2000 WI App 234, 239 Wis. 2d 392, 620 N.W.2d 429, 00-0001.

895.481 Annotation “Provides an equine” in sub. (3) (b) means to make available for use an equine that the provider either owns or controls and does not encompass an equine previously sold or given to the individual claiming damages. Barritt v. Lowe, 2003 WI App 185, 266 Wis. 2d 863, 669 N.W.2d 189, 03-0034.

895.481 Annotation A person asserting that the person has immunity because the person was “riding,” as an “equine activity,” at the time of the injury-producing accident need not show that the person was on the back of a horse at the moment of the accident. The statute is worded in terms of immunity for acts or omissions “related to” participation in an equine activity and not only for the act of the activity itself. Hellen v. Hellen, 2013 WI App 69, 348 Wis. 2d 223, 831 N.W.2d 430, 12-1916.

895.481 Annotation While it is true that a person who already owns or controls an equine can participate in an equine activity without being provided with an equine, in order for a person who does not own or control an equine to participate in an equine activity, someone must provide an equine within the meaning of sub. (3) (b). It is immaterial whether the person who allegedly provides the equine retains sole or primary control of the equine. Hellen v. Hellen, 2013 WI App 69, 348 Wis. 2d 223, 831 N.W.2d 430, 12-1916.

895.481 Annotation The exception under sub. (3) (b) centers on the assessment by a provider of a horse of a rider’s abilities based on the rider’s representations of his or her ability. The exception does not abrogate immunity for a provider’s negligent management of a horse, and the exception does not require an actual demonstration of riding ability or a test ride. Dilley v. Holiday Acres Properties, Inc., 905 F.3d 508 (2018).

895.481 Annotation Under Barritt, 2003 WI App 185, “providing an equine,” for purposes of the exception under sub. (3) (b), means that the defendant owns or controls the equine in question and makes it available for the plaintiff’s use. A riding instructor does not “provide” a horse owned by the riding student merely by exercising control over the riding lesson. Dilley v. Holiday Acres Properties, Inc., 905 F.3d 508 (2018).

895.481 Annotation The Exculpatory Contract and Public Policy. Anzivino. 102 MLR 747 (2019).

895.482 895.482 Civil liability exemption; ski patrol members.

895.482(1) (1) In this section:

895.482(1)(a) (a) “Compensation” means wages, salary, commission or bonuses paid for services rendered, but does not include the provision, at a discounted price or without charge, of food, beverages, clothing, passes or other incidental benefits to ski patrol members.

895.482(1)(b) (b) “Ski patrol member” means a registered member of the national ski patrol who serves in that capacity without compensation.

895.482(2) (2) Except as provided in sub. (3), a ski patrol member is immune from civil liability for his or her acts or omissions while he or she is acting in his or her capacity as a ski patrol member, including the rendering of emergency care.

895.482(3) (3) The immunity under this section does not apply if the act or omission of the ski patrol member involves reckless, wanton or intentional misconduct.

895.482 History History: 1991 a. 318.

895.483 895.483 Civil liability exemption; regional and local emergency response teams and their sponsoring agencies.

895.483(1) (1) A regional emergency response team, a member of such a team, and a local agency, as defined in s. 323.70 (1) (b), that contracts with the division of emergency management in the department of military affairs for the provision of a regional emergency response team, are immune from civil liability for acts or omissions related to carrying out responsibilities under a contract under s. 323.70 (2).

895.483(2) (2) A local emergency response team, a member of such a team and the county, city, village, or town that contracts to provide the emergency response team to the county are immune from civil liability for acts or omissions related to carrying out responsibilities pursuant to a designation under s. 323.61 (2m) (e).