History: 1995 a. 177
Civil liability exemption; employment references. 895.487(1)(a)
"Employe" has the meaning given in s. 101.01 (2) (a)
[101.01 (3)] and also includes a former employe.
The bracketed language indicates the correct cross-reference. Section 101.01 (2) (a) was renumbered by 1995 Wis. Act 27
. Corrective legislation is pending.
"Employer" has the meaning given in s. 101.01 (2) (b)
The bracketed language indicates the correct cross-reference. Section 101.01 (2) (b) was renumbered by 1995 Wis. Act 27
. Corrective legislation is pending.
"Reference" means a statement about an employe's job performance or qualifications for employment and includes a statement about an employe's job performance or qualifications for employment provided pursuant to the settlement of a dispute between the employer and employe or provided pursuant to an agreement between the employer and employe relating to the termination of the employe's employment.
An employer who, on the request of an employe or a prospective employer of the employe, provides a reference to that prospective employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from all civil liability that may result from providing that reference. The presumption of good faith under this subsection may be rebutted only upon a showing by clear and convincing evidence that the employer knowingly provided false information in the reference, that the employer made the reference maliciously or that the employer made the reference in violation of s. 111.322
History: 1995 a. 441
Certain agreements to limit or eliminate tort liability void. 895.49(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.
This section does not apply to any insurance contract or worker's compensation plan.
This section shall not apply to any provision of any contract, covenant or agreement entered into prior to July 1, 1978.
History: 1977 c. 441
; Stats. 1977 s. 895.47; 1977 c. 447
; Stats. 1977 s. 895.49.
This section did not void indemnity clause in contract. Gerdmann v. U.S. Fire Ins. Co. 119 W (2d) 367, 350 NW (2d) 730 (Ct. App. 1984).
Safety devices on farm equipment, ordinary negligence. 895.495(1)(a)
"Farm equipment" means a tractor or other machine used in the business of farming.
"Safety device" means a guard, shield or other part that has the purpose of preventing injury to humans.
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.
History: 1993 a. 455
Right of privacy. 895.50(1)(1)
The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:
Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media;
Compensatory damages based either on plaintiff's loss or defendant's unjust enrichment; and
In this section, "invasion of privacy" means any of the following:
Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.
The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.
The right of privacy recognized in this section shall be interpreted in accordance with the developing common law of privacy, including defenses of absolute and qualified privilege, with due regard for maintaining freedom of communication, privately and through the public media.
Compensatory damages are not limited to damages for pecuniary loss, but shall not be presumed in the absence of proof.
If judgment is entered in favor of the defendant in an action for invasion of privacy, the court shall determine if the action was frivolous. If the court determines that the action was frivolous, it shall award the defendant reasonable fees and costs relating to the defense of the action.
In order to find an action for invasion of privacy to be frivolous under par. (a)
, the court must find either of the following:
The action was commenced in bad faith or for harassment purposes.
The action was devoid of arguable basis in law or equity.
No action for invasion of privacy may be maintained under this section if the claim is based on an act which is permissible under ss. 196.63
Commercial misappropriation of person's name was prohibited by Wisconsin common law. Hirsch v. S.C. Johnson & Son, Inc. 90 W (2d) 379, 280 NW (2d) 129 (1979).
Oral communication among numerous employes and jail inmates is sufficient to constitute publicity under (2) (c). Hillman v. Columbia County, 164 W (2d) 376, 474 NW (2d) 913 (Ct. App. 1991).
See note to 19.21, citing 68 Atty. Gen. 68.
Surveillance of school district employe from public streets and highways by school district employer's agents to determine whether the employe was in violation of the district's residency policy did not violate this section. Munson v. Milwaukee Bd. of School Directors, 969 F (2d) 266 (1992).
The absence of false light from the Wisconsin privacy statute. 66 MLR 99 (1982).
The tort of misappropriation of name or likeness under Wisconsin's new privacy law. Endejan, 1978 WLR 1029.
Liability exemption: food donation, sale or distribution. 895.51(1)(b)
"Charitable organization" means an organization the contributions to which are deductible by corporations in computing net income under s. 71.26 (2)
"Food distribution service" means a program of a private nonprofit organization that provides food products directly to individuals with low incomes or that collects food products for and distributes food products to persons who provide the food products directly to individuals with low incomes.
"Qualified food" means food products that meet the standards of quality established by state law or rule or federal law or regulations, including food products that are not readily marketable due to appearance, age, freshness, grade, size, surplusage or other condition, except that "qualified food" does not include canned food products that are leaking, swollen, dented on a seam or not airtight.
Any person engaged in the processing, distribution or sale of food products, for profit or not for profit, who donates or sells, at a price not to exceed overhead and transportation costs, qualified food to a charitable organization or food distribution service is immune from civil liability for the death of or injury to an individual caused by the qualified food donated or sold by the person.
Any charitable organization or food distribution service which distributes free of charge qualified food to any person is immune from civil liability for the death of or injury to an individual caused by the qualified food distributed by the charitable organization or food distribution service.
This section does not apply if the death or injury was caused by wilful or wanton acts or omissions.
Liability exemption; equipment or technology donation. 895.515(1)(a)
"Commercial equipment or technology" means goods or related procedures used or bought for use primarily in a business, including farming and a profession.
"Institution of higher education" means a center or institution within the University of Wisconsin System, a technical college or a private, nonprofit institution of higher education located in this state.
Any person engaged in the sale or use of commercial equipment or technology, for profit or not for profit, who donates any commercial equipment or technology to a public or private elementary or secondary school or an institution of higher education or who accepts reimbursement in an amount not to exceed overhead and transportation costs for any commercial equipment or technology provided to a public or private elementary or secondary school or to an institution of higher education is immune from civil liability for the death of or injury to an individual caused by the commercial equipment or technology.
This section does not apply if the death or injury was caused by a wilful or wanton act or omission of the person who donated or accepted reimbursement for the commercial equipment or technology.
This section does not apply to the manufacturer of the donated commercial equipment or technology.
History: 1995 a. 112
Recreational activities; limitation of property owners' liability. 895.52(1)(a)
"Governmental body" means any of the following:
A county or municipal governing body, agency, board, commission, committee, council, department, district or any other public body corporate and politic created by constitution, statute, ordinance, rule or order.
"Injury" means an injury to a person or to property.
"Nonprofit organization" means an organization or association not organized or conducted for pecuniary profit.
A person, including a governmental body or nonprofit organization, that owns, leases or occupies property.
A governmental body or nonprofit organization that has a recreational agreement with another owner.
"Private property owner" means any owner other than a governmental body or nonprofit organization.
"Property" means real property and buildings, structures and improvements thereon, and the waters of the state, as defined under s. 281.01 (18)
"Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. "Recreational activity" includes, but is not limited to, hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature and any other outdoor sport, game or educational activity, but does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.
"Recreational agreement" means a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specified part of the owner's property for any recreational activity.
"Residential property" means a building or structure designed for and used as a private dwelling accommodation or private living quarters, and the land surrounding the building or structure within a 300-foot radius.
(2) No duty; immunity from liability. 895.52(2)(a)(a)
Except as provided in subs. (3)
, no owner and no officer, employe or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:
A duty to keep the property safe for recreational activities.
A duty to give warning of an unsafe condition, use or activity on the property.
Except as provided in subs. (3)
, no owner and no officer, employe or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property or for any death or injury resulting from an attack by a wild animal.
(3) Liability; state property. Subsection (2)
does not limit the liability of an officer, employe or agent of this state or of any of its agencies for either of the following: