895.04(2) (2) If the deceased leaves surviving a spouse, and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty and responsibility of a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse, and any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50% of the net amount received after deduction of costs of collection. If there are no such surviving minor children, the amount recovered shall belong and be paid to the spouse of the deceased; if no spouse survives, to the deceased's lineal heirs as determined by s. 852.01; if no lineal heirs survive, to the deceased's brothers and sisters. If any such relative dies before judgment in the action, the relative next in order shall be entitled to recover for the wrongful death. A surviving nonresident alien spouse and minor children shall be entitled to the benefits of this section. In cases subject to s. 102.29 this subsection shall apply only to the surviving spouse's interest in the amount recovered. If the amount allocated to any child under this subsection is less than $1,500, s. 807.10 may be applied. Every settlement in wrongful death cases in which the deceased leaves minor children under 18 years of age shall be void unless approved by a court of record authorized to act hereunder.
895.04(3) (3) If separate actions are brought for the same wrongful death, they shall be consolidated on motion of any party. Unless such consolidation is so effected that a single judgment may be entered protecting all defendants and so that satisfaction of such judgment shall extinguish all liability for the wrongful death, no action shall be permitted to proceed except that of the personal representative.
895.04(4) (4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $150,000 for loss of society and companionship may be awarded to the spouse, children or parents of the deceased.
895.04(5) (5) If the personal representative brings the action, the personal representative may also recover the reasonable cost of medical expenses, funeral expenses, including the reasonable cost of a cemetery lot, grave marker and care of the lot. If a relative brings the action, the relative may recover such medical expenses, funeral expenses, including the cost of a cemetery lot, grave marker and care of the lot, on behalf of himself or herself or of any person who has paid or assumed liability for such expenses.
895.04(6) (6) Where the wrongful death of a person creates a cause of action in favor of the decedent's estate and also a cause of action in favor of a spouse or relatives as provided in this section, such spouse or relatives may waive and satisfy the estate's cause of action in connection with or as part of a settlement and discharge of the cause of action of the spouse or relatives.
895.04(7) (7) Damages found by a jury in excess of the maximum amount specified in sub. (4) shall be reduced by the court to such maximum. The aggregate of the damages covered by subs. (4) and (5) shall be diminished under s. 895.045 if the deceased or person entitled to recover is found negligent.
895.04 History History: 1971 c. 59; Sup. Ct. Order, 67 W (2d) 585, 784 (1975); 1975 c. 94 s. 91 (3); 1975 c. 166, 199, 287, 421, 422; 1979 c. 166; 1983 a. 315; 1985 a. 130; 1989 a. 307; 1991 a. 308.
895.04 Annotation Statutory increases in damage limitations recoverable in a wrongful death action constitute changes in substantive rights and not mere remedial changes. Bradley v. Knutson, 62 W (2d) 432, 215 NW (2d) 369.
895.04 Annotation A parent may maintain an action for loss of aid, comfort, society and companionship of an injured minor child against a negligent tort-feasor on condition that the parents' cause of action is combined with that of the child for the child's personal injuries. Callies v. Reliance Laundry Co. 188 W 376, overruled. Shockley v. Prier, 66 W (2d) 394, 225 NW (2d) 495.
895.04 Annotation In an action for wrongful death by 2 children of deceased, the plaintiffs' failure to join 3 sisters who would otherwise have been indispensable parties was not fatal to the court's subject matter jurisdiction where affidavits submitted to the trial court indicated that the 3 sisters were unavailable. Kochel v. Hartford Accident & Indemnity Co. 66 W (2d) 405, 225 NW (2d) 604.
895.04 Annotation Plaintiff had wheeled the slicer at least 52 times prior to the accident. Her opportunity to observe and discover any danger was greater than that of any of defendant's employes. Balas v. St. Sebastian's Congregation, 66 W (2d) 421, 225 NW (2d) 428.
895.04 Annotation "Judgment" under (2) means a final, not interlocutory, judgment. Collins v. Gee, 82 W (2d) 376, 263 NW (2d) 158.
895.04 Annotation Trial court in wrongful death action should inform jury of statutory limitations on recovery, if any. Peot v. Ferraro, 83 W (2d) 727, 266 NW (2d) 586 (1978).
895.04 Annotation Posthumous illegitimate child may not maintain action for wrongful death of putative father. Robinson v. Kolstad, 84 W (2d) 579, 267 NW (2d) 886 (1978).
895.04 Annotation This section does not require that proceeds be equally divided between parents. Keithley v. Keithley, 95 W (2d) 136, 289 NW (2d) 368 (Ct. App. 1980).
895.04 Annotation Punitive damages are not recoverable incident to damages for wrongful death. Wangen v. Ford Motor Co. 97 W (2d) 260, 294 NW (2d) 437 (1980).
895.04 Annotation Attractive nuisance doctrine discussed. Christians v. Homestake Enterprises, Ltd. 101 W (2d) 25, 303 NW (2d) 608 (1981).
895.04 Annotation This section does not permit estate to recover on its own behalf damages for decedent's pecuniary loss. Weiss v. Regent Properties, Ltd. 118 W (2d) 225, 346 NW (2d) 766 (1984).
895.04 Annotation See note to 895.045, citing Delvaux v. Vanden Langenberg, 130 W (2d) 464, 387 NW (2d) 751 (1986).
895.04 Annotation Spouse's claim under (4) for loss of society and companionship is additional to common law claim for loss of consortium prior to death of deceased. See note to 120.92, citing Kottka v. PPG Industries, Inc. 130 W (2d) 499, 388 NW (2d) 160 (1986).
895.04 Annotation Spouse who "feloniously and intentionally" kills spouse isn't surviving spouse for purposes of (2) and is treated as having predeceased decedent. Stienbarth v. Johannes, 144 W (2d) 159, 423 NW (2d) 540 (1988).
895.04 Annotation "Pecuniary injury" under (4) includes loss of any benefit, including social security disability benefits, plaintiff would have received from decedent. Estate of Holt v. State Farm, 151 W (2d) 455, 444 NW (2d) 453 (Ct. App. 1989).
895.04 Annotation Surviving parents are not entitled to $50,000 each under (4). Children may collect if there is no spouse, and deceased's parents may collect if there are no children. York v. National Continental Ins. Co. 158 W (2d) 486, 463 NW (2d) 364 (Ct. App. 1990).
895.04 Annotation This section is inapplicable in medical malpractice actions; there is no cause of action in an adult child for the loss of society and companionship of a parent. Dziadosz v. Zirneski, 177 W (2d) 59, 501 NW (2d) 828 (Ct. App. 1993).
895.04 Annotation The damage limitation under (4) is inapplicable to medical malpractice actions in which death resulted; (2) does not prevent minor from bringing action for loss of companionship when malpractice causes parent's death, including when the decedent is survived by a spouse. Jelinik v. St. Paul Fire & Casualty Ins. Co. 182 W (2d) 1, 512 NW (2d) 764 (1994).
895.04 Annotation Georgia law barring father, but not mother, of illegitimate child from suing for child's wrongful death did not deny equal protection. Parham v. Hughes, 441 US 347 (1979).
895.04 Annotation There may not be separate recovery for both estate and beneficiaries. Bell v. City of Milwaukee, 746 F (2d) 1205 (1984).
895.04 Annotation Expanding and limiting damages for pecuniary injury due to wrongful death. Schoone, 1972 WBB No. 4.
895.04 Annotation Cause of action by parents sustained for loss of society and companionship of child tortiously injured. 1976 WLR 641.
895.045 895.045 Contributory negligence.
895.045(1) (1)Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.
895.045(2) (2)Concerted action. Notwithstanding sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.85 (5).
895.045 History History: 1971 c. 47; 1993 a. 486; 1995 a. 17.
895.045 Cross-reference Cross-reference: See s. 891.44 for conclusive presumption that child under 7 cannot be guilty of contributory negligence.
895.045 Annotation Ordinary negligence can be compared with negligence founded upon the safe-place statute, and in making such comparison in a safe-place case, violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. [Language in Maus v. Bloss, 265 W 627, if construed as supporting a contrary proposition, is overruled.] It is not prejudicial error not to call attention to the different standards of care in a safe-place case when instruction number 1580 is used. Lovesee v. Allied Development Corp. 45 W (2d) 340, 173 NW (2d) 196.
895.045 Annotation The court refuses to adopt the doctrine of pure comparative negligence. Vincent v. Pabst Brewing Co. 47 W (2d) 120, 177 NW (2d) 513.
895.045 Annotation A distinction between active and passive negligence as to responsibility for injury and full indemnity to the tort-feasor whose negligence was passive was rejected by the court. Pachowitz v. Milwaukee & S. Transport Corp. 56 W (2d) 383, 202 NW (2d) 268.
895.045 Annotation For the purpose of applying the comparative negligence statute, both the causes of action for medical expenses and loss of consortium shall be deemed derivative; and the causal negligence of the injured spouse shall bar or limit the recovery of the claiming spouse pursuant to the terms of the statute. White v. Lunder, 66 W (2d) 563, 225 NW (2d) 442.
895.045 Annotation The contributory negligence of the plaintiff spectator in viewing the race from the north end of the track opposite the 3rd and 4th turns was not greater than defendants' negligence as a matter of law where she did not realize that watching from the curve would be more dangerous than sitting in the grandstand, was not aware that tires would fly into the spectator area, there was no warning of potential dangers, and was watching the race closely immediately prior to the accident. Kaiser v. Cook, 67 W (2d) 460, 227 NW (2d) 50.
895.045 Annotation The trial court's denial of defendants' motion to direct the jury to consider the employer's negligence in its special verdict was error even though the employer's liability extended only to workmen's compensation. Connar v. West Shore Equipment, 68 W (2d) 42, 227 NW (2d) 660.
895.045 Annotation The trial court's instruction to the jury to compute not all the damages plaintiff suffered but only that portion caused by defendant's negligence was erroneous, because this section requires the jury to find 100% of plaintiff's damages, which are then reduced by the amount of his contributory negligence; but the erroneous instruction was not prejudicial where nothing in the record indicates a probability of the instruction having affected the allocation of 57% negligence to plaintiff. Nimmer v. Purtell, 69 W (2d) 21, 230 NW (2d) 258.
895.045 Annotation Insufficiently guarded swimming pool may constitute attractive nuisance. McWilliams v. Gazinski, 71 W (2d) 57, 237 NW (2d) 437.
895.045 Annotation When 2 grounds of negligence are alleged it does not categorically follow that the plaintiff must always elect one of the 2 grounds of negligence for submission to the jury. Negligence per se discussed. Howes v. Deere & Co. 71 W (2d) 268, 238 NW (2d) 76.
895.045 Annotation Conduct constituting implied or tacit assumption of risk is no longer bar to action for negligence. Polsky v. Levine, 73 W (2d) 547, 263 NW (2d) 204.
895.045 Annotation Record of rear-end collision case contained credible evidence that plaintiff executed maneuvers which could not be done with reasonable safety and failed to signal before executing them, which supported finding of 50% causal negligence. Thompson v. Howe, 77 W (2d) 441, 253 NW (2d) 59.
895.045 Annotation Injured minor cannot be charged with contributory negligence when employment is in violation of child labor law. Tisdale v. Hasslinger, 79 W (2d) 194, 255 NW (2d) 314.
895.045 Annotation Where court grants judgment notwithstanding verdict regarding 2 of several defendants found causally negligent, and percentage of negligence reallocated affects damages but not liability, plaintiffs should be given option of proportional reduction of judgment or new trial. Chart v. Gen. Motors Corp. 80 W (2d) 91, 258 NW (2d) 680.
895.045 Annotation If court can find as matter of law that party is causally negligent, contrary to jury's answer, and jury attributes some degree of comparative negligence to that party, court should change causal negligence answer and permit jury's comparison to stand. Ollinger v. Grall, 80 W (2d) 213, 258 NW (2d) 693.
895.045 Annotation Where blowing snow obstructed driver's vision, driver did not reduce speed, and parked truck on highway "loomed up" out of snow, driver was causally negligent as matter of law. Nelson v. Travelers Ins. Co. 80 W (2d) 272, 259 NW (2d) 48.
895.045 Annotation Rescue doctrine and emergency doctrine discussed. Cords v. Anderson, 80 W (2d) 525, 259 NW (2d) 672.
895.045 Annotation Negligence of tort-feasor dismissed from lawsuit on summary judgment as being less or equally negligent as plaintiff can be considered by jury in apportioning total causal negligence of remaining parties. Gross v. Midwest Speedways, Inc. 81 W (2d) 129, 260 NW (2d) 36.
895.045 Annotation Collateral source rule and defense of superseding cause discussed. Rixmann v. Somerset Public Schools, 83 W (2d) 571, 266 NW (2d) 326 (1978).
895.045 Annotation Negligence per se arising out of breach of safety statute may be compared with common law negligence. Locicero v. Interpace Corp. 83 W (2d) 876, 266 NW (2d) 423 (1978).
895.045 Annotation In safe place case, comparative negligence instructions need not direct jury to consider defendant's higher duty of care. Brons v. Bischoff, 89 W (2d) 80, 277 NW (2d) 854 (1979).
895.045 Annotation Motorist injured while fleeing police was, as matter of law, more negligent than pursuing officer. Brunette v. Employers Mut. Liability Ins. Co. 107 W (2d) 361, 320 NW (2d) 43 (Ct. App. 1982).
895.045 Annotation Corporation which acquired substantially all assets of predecessor sole proprietorship but which is substantially same business organization and manufactures almost identical product as its predecessor may be liable for injuries caused by defective product manufactured by predecessor. Tift v. Forage King Industries, Inc. 108 W (2d) 72, 322 NW (2d) 14 (1982).
895.045 Annotation Exculpatory contract was unenforceable where contract contained false statement that defendant had no insurance. Merten v. Nathan, 108 W (2d) 205, 321 NW (2d) 173 (1982).
895.045 Annotation Failure to give jury emergency instruction was reversible error, despite plaintiff's violation of several safety statutes. Westfall v. Kottke, 110 W (2d) 86, 328 NW (2d) 481 (1983).
895.045 Annotation Tort of parent's negligent control of child compared to negligent entrustment to child of dangerous instrumentality. Bankert v. Threshermen's Mut. Ins. Co. 110 W (2d) 469, 329 NW (2d) 150 (1983).
895.045 Annotation Boys on pier should have foreseen that grabbing towel from bikini-clad girl would embarrass her and cause her to dive into water without pausing to ascertain its shallow depth. LePoidevin v. Wilson, 111 W (2d) 116, 330 NW (2d) 555 (1983).
895.045 Annotation Exculpatory contract signed by husband did not bar wife's suit for loss of consortium. Broad and general contract bars only claims within contemplation of parties at time of execution. Arnold v. Shawano County Agr. Society, 111 W (2d) 203, 330 NW (2d) 773 (1983).
895.045 Annotation Attorney was not immunized from liability in tort action for abuse of process. Strid v. Converse, 111 W (2d) 418, 331 NW (2d) 350 (1983).
895.045 Annotation Beneficiary of will may maintain action against attorney who negligently drafted or supervised execution of will even though not in privity with attorney. Auric v. Continental Cas. Co. 111 W (2d) 507, 331 NW (2d) 325 (1983).
895.045 Annotation Accountant may be held liable to third party not in privity for negligent preparation of audit report. Citizens State Bank v. Timm, Schmidt & Co. 113 W (2d) 376, 335 NW (2d) 361 (1983).
895.045 Annotation "Seat belt negligence" and "passive negligence" distinguished. Jury instructions regarding seat belts recommended. Method for apportioning damages in seat belt negligence cases adopted. Foley v. City of West Allis, 113 W (2d) 475, 335 NW (2d) 824 (1983).
895.045 Annotation Bus driver who told 11-year-old he could not ride school bus next day but did not inform either school or parents of action was 93% liable for injuries sustained by boy while riding bicycle to school next day. Toeller v. Mutual Serv. Casualty Ins. Co. 115 W (2d) 631, 340 NW (2d) 923 (Ct. App. 1983).
895.045 Annotation Minor child may recover for loss of care, society, companionship, protection, training and guidance of parent due to negligent acts of third party. Theama v. City of Kenosha, 117 W (2d) 508, 344 NW (2d) 513 (1984).
895.045 Annotation Exculpatory clause in Yellow Pages contract is unenforceable. Discount Fabric House v. Wis. Tel. Co. 117 W (2d) 587, 345 NW (2d) 417 (1984).
895.045 Annotation Due to public policy reasons tortfeasor was immune from liability. Sanem v. Home Ins. Co. 119 W (2d) 530, 350 NW (2d) 89 (1984).
895.045 Annotation In "second collision" products liability case, plaintiff must prove that defective product was substantial factor in causing injury. Court upholds verdict finding plaintiff passenger not negligent for failing to wear seat belt. Sumnicht v. Toyota Motor Sales, 121 W (2d) 338, 360 NW (2d) 2 (1984).
895.045 Annotation Plaintiff's mental distress regarding possibility of future surgery was compensable even though plaintiff's doctor was not able to testify that surgery was reasonably probable. Brantner v. Jenson, 121 W (2d) 658, 360 NW (2d) 529 (1985).
895.045 Annotation In negligence actions, emotional distress must be manifested by physical injury, e. g. hysteria. Garrett v. City of New Berlin, 122 W (2d) 223, 362 NW (2d) 137 (1985).
895.045 Annotation Court declines to adopt "product line" or "expanded continuation" exceptions to rule of successor corporation nonliability for defective products manufactured by predecessor. Fish v. Amsted Industries, Inc. 126 W (2d) 293, 376 NW (2d) 820 (1985).
895.045 Annotation Where decedent's negligence was greater than any individual tortfeasor's, this section bars recovery under 895.04 (7). Delvaux v. Vanden Langenberg, 130 W (2d) 464, 387 NW (2d) 751 (1986).
895.045 Annotation Negligent tortfeasor has right to indemnity from intentional joint tortfeasor. Pierringer release of intentional tortfeasor absolved negligent tortfeasor. Fleming v. Threshermen's Mut. Ins. Co., 131 W (2d) 123, 388 NW (2d) 908 (1986).
895.045 Annotation Punitive damages may not be recovered where actual damages are unavailable due to this section. Tucker v. Marcus, 142 W (2d) 425, 418 NW (2d) 818 (1988).
895.045 Annotation Psychotherapist's duty to third parties for intentional behavior of dangerous patients discussed. Schuster v. Altenberg, 144 W (2d) 223, 424 NW (2d) 159 (1988).
895.045 Annotation This section is inapplicable to the equitable resolution of a subrogation dispute. Ives v. Coopertools, 197 W (2d) 938, 541 NW (2d) 247 (Ct. App. 1995).
895.045 Annotation Where plaintiff's negligence was greater than any injurer's, neither plaintiff nor plaintiff's spouse could recover. Spearing v. National Iron Co. 770 F (2d) 87 (1985).
895.045 Annotation Proportioning comparative negligence-problems of theory and special verdict formulation. Aiken, 53 MLR 293.
895.045 Annotation From defect to cause to comparative fault—Rethinking some product liability concepts. Twerski, 60 MLR 297.
895.045 Annotation The problem of the insolvent contributor. Myse, 60 MLR 891.
895.045 Annotation Punitive damage recovery in products liability cases. Ghiardi and Kircher, 65 MLR 1 (1981).
895.045 Annotation The concepts of "defective condition" and "unreasonably dangerous" in products liability law. Swartz, 66 MLR 280 (1983).
895.045 Annotation Seat belt negligence: The ambivalent Wisconsin rules. McChrystal. 68 MLR 539 (1985).
895.045 Annotation Second collision law - Wisconsin. Ghiardi. 69 MLR 1 (1985).
895.045 Annotation Comparative Negligence in Wisconsin. Horowitz, WBB Jan. 1981.
895.045 Annotation Plaintiff's failure to wear a safety belt. Towers, WBB July, 1985.
895.045 Annotation Strict products liability in Wisconsin. 1977 WLR 227.
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