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:
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.
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.
Any applicable statute of limitations for an action to recover damages against a person described under sub. (2) (a)
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.
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)
A court may stay a civil action described under sub. (2)
until the final disposition of a criminal proceeding described under sub. (4)
History: 2003 a. 87
; 2005 a. 155
; Stats. 2005 s. 895.457.
State and political subdivisions thereof to pay judgments taken against officers. 895.46(1)(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.
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.
Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:
Satisfactorily completed or are currently enrolled in the preparatory program of law enforcement training under s. 165.85 (4) (b) 1.
and, if applicable, the recertification programs under s. 165.85 (4) (bn) 1.
, or have provided evidence of equivalent law enforcement training and experience as determined by the law enforcement standards board; or
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.
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.
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.
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.
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.
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)
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.
The protection afforded by this section applies to any of the following:
A volunteer health care provider who provides services under s. 146.89
, for the provision of those services.
A practitioner who provides services under s. 257.03
and a health care facility on whose behalf services are provided under s. 257.04
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
(d) and (e), 6973
(b) and (c), 7413
(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.
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
The protection afforded by this section applies to any owner of land within a drainage district established under ch. 88
who undertakes work on a drain if the work is approved by the drainage board.
The state shall reimburse a state officer or state employee for reasonable attorney fees and costs incurred by the officer or employee in connection with a John Doe proceeding under s. 968.26 (2)
arising from the officer's or employee's conduct in the performance of official duties if all the following apply:
The officer or employee was acting within the scope of his or her employment.
The officer or employee is not convicted of a crime arising from the conduct that is the subject of any criminal complaint issued under s. 968.26 (2) (d)
The state shall reimburse a state officer or state employee for reasonable attorney fees and costs incurred by the officer or employee in defending a criminal complaint issued under s. 968.26 (2) (d)
arising from the officer's or employee's conduct in the performance of official duties if all of the following apply:
The officer or employee was acting within the scope of his or her employment.
The officer or employee is not convicted of a crime arising from the conduct that is the subject of the criminal complaint issued under s. 968.26 (2) (d)
Any employee of the state of Minnesota who is named as a defendant and who is found liable as a result of performing services for this state under a valid agreement between this state and the state of Minnesota providing for interchange of employees or services shall be indemnified by this state to the same extent as an employee of this state performing the same services for this state pursuant to this section.
History: 1973 c. 333
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 895.45; 1975 c. 81
; Stats. 1975 s. 895.46; 1977 c. 29
; 1979 c. 74
; 1981 c. 20
; 1981 c. 96
; 1981 c. 314
; 1983 a. 6
; 1983 a. 27
s. 2202 (32)
; 1985 a. 29
; 1987 a. 342
; 1987 a. 403
; 1989 a. 31
; 1991 a. 245
; 1993 a. 27
; 1995 a. 201
; 1997 a. 35
; 1999 a. 185
; 2003 a. 111
; 2005 a. 96
; 2007 a. 79
; 2009 a. 24
; 2011 a. 32
See s. 775.06
for special procedure applying to state law enforcement officers.
Highway commission [now transportation dept.] supervisors who are responsible for the placement of highway warning signs may be sued if a sign is not placed in accordance with commission rules. They cannot claim the state's immunity from suit. Chart v. Dvorak, 57 Wis. 2d 92
, 203 N.W.2d 673
"Litigation" under sub. (1) refers only to civil proceedings. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574
, 263 N.W.2d 218
Mandatory payment under sub. (1) did not apply to an official who was sued for illegally retaining his salary due to an alleged failure to comply with the statutory requirements for a bond and oath of office. The official was not acting in his official capacity when filing the bond or taking the oath or in defending a related suit. Thuermer v. Village of Mishicot, 86 Wis. 2d 374
, 272 N.W.2d 409
(Ct. App. 1978).
An insurer of public employees had no right of recovery under s. 270.58 (1) [now s. 895.46 (1)]. Horace Mann Insurance Co. v. Wauwatosa Board of Education, 88 Wis. 2d 385
, 276 N.W.2d 761
The state could not be sued as an indemnitor under s. 270.58 (1) [now s. 895.46 (1)]. Fiala v. Voight, 93 Wis. 2d 337
, 286 N.W.2d 824
The state may not be sued directly for the tortious acts of its employees. Miller v. Smith, 100 Wis. 2d 609
, 302 N.W.2d 468
The "color of law" element of 42 USC 1983 lawsuit is not identical to the "scope of employment" element under sub. (1). Cameron v. Milwaukee, 102 Wis. 2d 448
, 307 N.W.2d 164
Whether alderpersons were acting within the scope of their employment was inappropriately decided by summary judgment. Schroeder v. Schoessow, 108 Wis. 2d 49
, 321 N.W.2d 131
Once a governmental unit decides to provide counsel, it must provide complete and full representation on all issues. Beane v. City of Sturgeon Bay, 112 Wis. 2d 609
, 334 N.W.2d 235
Sub. (1) applied to a forfeiture action against a police officer. Crawford v. City of Ashland, 134 Wis. 2d 369
, 396 N.W.2d 781
(Ct. App. 1986).
"Any action" in sub. (1) (a) means a trial in which the issue of "scope of employment" is essential and evidence on the issue is introduced and argued. Desotelle v. Continental Cas. Co. 136 Wis. 2d 13
, 400 N.W.2d 524
(Ct. App. 1986).
In "scope of employment" cases under sub. (1) (a), consideration must be given to whether the employee was "actuated," in some measure, by a purpose to serve the employer. Olson v. Connerly, 156 Wis. 2d 488
, 457 N.W.2d 479
A former school employee sued by the school district over her employment contract was not entitled to costs under sub. (1) (a). Pardeeville Area School District v. Bomber, 214 Wis. 2d 397
, 571 N.W.2d 189
(Ct. App. 1997), 97-1469
Voting members of a commission created by 2 villages were public officers protected by s. 895.46 (1). 74 Atty. Gen. 208
Sections 895.35 and 895.46 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
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
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 s. 895.46 and legal representation by the attorney general under s. 165.25. 81 Atty. Gen. 17
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
An assistant district attorney on furlough pursuant to executive order is entitled to representation and indemnification if he or she is carrying out duties within the scope of his or her employment. OAG 9-09
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
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 s. 895.46 to indirectly recover from the municipality. Graham v. Sauk Prairie Police Commission. 915 F.2d 1085
An employee can misuse or exceed his or her authority while still acting within the scope of his or her employment. Graham exemplifies the principle that a police officer can grossly exceed his 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
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
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
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
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. Leibenstein v. Crowe, 826 F. Supp. 1174
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 1023
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.
History: 1977 c. 344
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.
History: 2005 a. 212
; 2007 a. 97
EXEMPTIONS FROM, AND LIMITATIONS ON, LIABILITY
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.
History: 1991 a. 39
; 2005 a. 155
; Stats. 2005 s. 895.475.
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
Civil liability exemption; emergency medical care. 895.48(1)(1)
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. This immunity 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.
Except as provided in par. (b)
, any physician, physician assistant, podiatrist, or athletic trainer licensed under ch. 448
, chiropractor licensed under ch. 446
, dentist licensed under ch. 447
, emergency medical technician licensed under s. 256.15
, first responder certified under s. 256.15 (8)
, registered nurse licensed under ch. 441
, or a massage therapist or bodywork therapist licensed under ch. 460
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:
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.
The physician, podiatrist, athletic trainer, chiropractor, dentist, emergency medical technician, first responder, physician assistant, registered nurse, massage therapist or bodywork therapist does not receive compensation for the health care, other than reimbursement for expenses.
(b) Paragraph (a)
does not apply to health care services provided by a volunteer health care provider under s. 146.89
"Cardiac arrest" means the sudden cessation of cardiac function and the disappearance of arterial blood pressure that connote ventricular fibrillation or pulseless ventricular tachycardia.
"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.
Any of the following, other than an emergency medical technician or a first 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: