895.445(2)
(2) The owner has the burden of proving his or her case under
sub. (1) by a preponderance of the credible evidence.
895.445(3)
(3) If the owner prevails in a civil action under
sub. (1), he or she may recover all of the following:
895.445(3)(b)
(b) Costs, including all reasonable attorney fees and other costs of the investigation and litigation that were reasonably incurred.
895.445(4)
(4) An owner may bring a civil action under
sub. (1) regardless of whether there has been a criminal action related to the damage under
sub. (1) and regardless of the outcome of any such criminal action.
895.445 History
History: 1995 a. 133;
2005 a. 155 s.
69; Stats. 2005 s. 895.445.
895.446
895.446
Property damage or loss caused by crime; action for. 895.446(1)(1) Any person who suffers damage or loss by reason of intentional conduct that occurs on or after November 1, 1995, and that is prohibited under
s. 943.01,
943.20,
943.21,
943.24,
943.26,
943.34,
943.395,
943.41,
943.50,
943.61,
943.74, or
943.76, or by reason of intentional conduct that occurs on or after April 28, 1998, and that is prohibited under
s. 943.201 or
943.203, or by reason of intentional conduct that occurs on or after July 1, 2004, and that is prohibited under
s. 943.011,
943.012, or
943.017, has a cause of action against the person who caused the damage or loss.
895.446(2)
(2) The burden of proof in a civil action under
sub. (1) is with the person who suffers damage or loss to prove a violation of
s. 943.01,
943.011,
943.012,
943.017,
943.20,
943.201,
943.203,
943.21,
943.24,
943.26,
943.34,
943.395,
943.41,
943.50,
943.61,
943.74, or
943.76 by a preponderance of the credible evidence. A conviction under
s. 943.01,
943.011,
943.012,
943.017,
943.20,
943.201,
943.203,
943.21,
943.24,
943.26,
943.34,
943.395,
943.41,
943.50,
943.61,
943.74, or
943.76 is not required to bring an action, obtain a judgment, or collect on that judgment under this section.
895.446(3)
(3) If the plaintiff prevails in a civil action under
sub. (1), he or she may recover all of the following:
895.446(3)(a)
(a) Actual damages, including the retail or replacement value of damaged, used, or lost property, whichever is greater, for a violation of
s. 943.01,
943.011,
943.012,
943.017,
943.20,
943.201,
943.203,
943.21,
943.24,
943.26,
943.34,
943.395,
943.41,
943.50,
943.61,
943.74, or
943.76.
895.446(3)(b)
(b) All costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employee or agent of the victim.
895.446(3)(c)
(c) Exemplary damages of not more than 3 times the amount awarded under
par. (a). No additional proof is required under this section for an award of exemplary damages under this paragraph.
895.446(3m)(a)(a) In this subsection, "plant" includes the material taken, extracted, or harvested from a plant, or a seed or other plant material that is being used or that will be used to grow or develop a plant.
895.446(3m)(b)
(b) If the violation of
s. 943.01 (1) involves the circumstances under
s. 943.01 (2d), the court may award a prevailing plaintiff the reasonable attorney fees incurred in litigating the action and, when determining the damages recoverable under
sub. (3), shall include the market value of the plant before the damage or destruction, and the costs of production, research, testing, replacement, and plant development directly related to the plant that has been damaged or destroyed.
895.446(4)
(4) Any recovery under this section shall be reduced by the amount recovered as restitution under
ss. 800.093 and
973.20 and
ch. 938 for the same act or as recompense under
s. 969.13 (5) (a) for the same act.
895.446(5)
(5) No person may bring a cause of action under both this section and
s. 95.195,
943.212,
943.245 or
943.51 regarding the same incident or occurrence. If the plaintiff has a cause of action under both this section and
s. 943.212,
943.245 or
943.51 regarding the same incident or occurrence, the plaintiff may choose which action to bring. If the plaintiff has a cause of action under both this section and
s. 95.195, the plaintiff must bring the action under
s. 95.195.
895.446(6)
(6) A person is not criminally liable under
s. 943.30 for any action brought in good faith under this section.
895.446 Annotation
A trial court cannot, contrary to sub. (3) (b), award attorney fees that exceed what was actually "incurred." Stathus v. Horst, 2003 WI App 28,
260 Wis. 2d 166,
659 N.W.2d 165,
02-0543.
895.446 Annotation
Under Wisconsin law the economic loss doctrine does not bar recovery under s. 100.18, but it does bar recovery under s. 895.80, at least under the facts of this case. Dow v. Poltzer,
364 F. Supp. 2d 931 (2005).
895.447
895.447
Certain agreements to limit or eliminate tort liability void. 895.447(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.
895.447(2)
(2) This section does not apply to any insurance contract or worker's compensation plan.
895.447(3)
(3) This section shall not apply to any provision of any contract, covenant or agreement entered into prior to July 1, 1978.
895.447 History
History: 1977 c. 441; Stats. 1977 s. 895.47;
1977 c. 447; Stats. 1977 s. 895.49;
2005 a. 155 s.
49; Stats. 2005 s. 895.447.
895.447 Annotation
This section did not void an indemnity clause in a contract. Gerdmann v. U.S. Fire Insurance Co.
119 Wis. 2d 367,
350 N.W.2d 730 (Ct. App. 1984).
895.448
895.448
Safety devices on farm equipment, ordinary negligence. 895.448(1)(a)
(a) "Farm equipment" means a tractor or other machine used in the business of farming.
895.448(1)(b)
(b) "Safety device" means a guard, shield or other part that has the purpose of preventing injury to humans.
895.448(2)
(2) 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.
895.448 History
History: 1993 a. 455;
2005 a. 155 s.
50; Stats. 2005 s. 895.448.
895.45
895.45
Service representatives for adult abusive conduct complainants. 895.45(1)(a)
(a) "Abusive conduct" means domestic abuse, as defined under
s. 49.165 (1) (a),
813.12 (1) (am), or
968.075 (1) (a), harassment, as defined under
s. 813.125 (1), sexual exploitation by a therapist under
s. 940.22, sexual assault under
s. 940.225, child abuse, as defined under
s. 813.122 (1) (a), or child abuse under
ss. 948.02 to
948.11.
895.45(1)(b)
(b) "Complainant" means an adult who alleges that he or she was the subject of abusive conduct or who alleges that a crime has been committed against him or her.
895.45(1)(c)
(c) "Service representative" means an individual member of an organization or victim assistance program who provides counseling or support services to complainants or petitioners and charges no fee for services provided to a complainant under
sub. (2) or to a petitioner under
s. 813.122.
895.45(2)
(2) Right to be present. A complainant has the right to select a service representative to attend, with the complainant, hearings, depositions and court proceedings, whether criminal or civil, and all interviews and meetings related to those hearings, depositions and court proceedings, if abusive conduct is alleged to have occurred against the complainant or if a crime is alleged to have been committed against the complainant and if the abusive conduct or the crime is a factor under
s. 767.41 or is a factor in the complainant's ability to represent his or her interest at the hearing, deposition or court proceeding. The complainant shall notify the court orally, or in writing, of that selection. A service representative selected by a complainant has the right to be present at every hearing, deposition and court proceeding and all interviews and meetings related to those hearings, depositions and court proceedings that the complainant is required or authorized to attend. The service representative selected by the complainant has the right to sit adjacent to the complainant and confer orally and in writing with the complainant in a reasonable manner during every hearing, deposition or court proceeding and related interviews and meetings, except when the complainant is testifying or is represented by private counsel. The service representative may not sit at counsel table during a jury trial. The service representative may address the court if permitted to do so by the court.
895.45(3)
(3) Failure to exercise right not grounds for appeal. The failure of a complainant to exercise a right under this section is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.
895.455
895.455
Limits on recovery by prisoners. A prisoner, as defined in
s. 801.02 (7) (a) 2., may not recover damages for mental or emotional injury unless the prisoner shows that he or she has suffered a physical injury as a result of the same incident that caused the mental or emotional injury.
895.455 History
History: 1997 a. 133;
2005 a. 155 s.
66; Stats. 2005 s. 895.455.
895.457
895.457
Limiting felon's right to damages. 895.457(1)(a)
(a) "Crime" means a crime under the laws of this state or under federal law.
895.457(1)(b)
(b) "Damages" means damages for an injury to real or personal property, for death, or for personal injury.
895.457(1)(c)
(c) "Felony" means a felony under the laws of this state or under federal law.
895.457(1)(d)
(d) "Victim" means a person against whom an act constituting a felony was committed.
895.457(2)
(2) 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:
895.457(2)(b)
(b) 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.
895.457(3)
(3) 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.
895.457(4)(a)(a) Any applicable statute of limitations for an action to recover damages against a person described under
sub. (2) (a) or
(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 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.
895.457(4)(b)
(b) 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) pending.
895.457(5)
(5) A court may stay a civil action described under
sub. (2) until the final disposition of a criminal proceeding described under
sub. (4).
895.457 History
History: 2003 a. 87;
2005 a. 155 s.
68; Stats. 2005 s. 895.457.
895.46
895.46
State and political subdivisions thereof to pay judgments taken against officers. 895.46(1)(a)(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 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. 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.
895.46(1)(am)
(am) 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.
895.46(1)(b)
(b) Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:
895.46(1)(b)1.
1. 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
895.46(1)(c)
(c) 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.
895.46(1)(d)
(d) 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.
895.46(1)(e)
(e) 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.
895.46(2)
(2) 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.
895.46(3)
(3) 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).
895.46(4)
(4) 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.
895.46(5)
(5) The protection afforded by this section applies to any of the following:
895.46(5)(a)
(a) A volunteer health care provider who provides services under
s. 146.89, for the provision of those services.
895.46(5)(am)
(am) A behavioral health provider, health care provider, pupil services provider, or substance abuse prevention provider who provides services under
s. 250.042 (4) and a health care facility on whose behalf services are provided under
s. 250.042 (4).
895.46(6)
(6) 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,
6928 (d) and (e),
6973 (b),
6992 (b) and (c),
7413 (c),
9603 (b),
9606 (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.
895.46(7)
(7) 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.
895.46(8)
(8) 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.
895.46 History
History: 1973 c. 333; Sup. Ct. Order,
67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 895.45;
1975 c. 81,
198,
199; Stats. 1975 s. 895.46;
1977 c. 29;
1979 c. 74,
221;
1981 c. 20;
1981 c. 96 s.
67;
1981 c. 314 s.
136;
1983 a. 6;
1983 a. 27 s.
2202 (32);
1985 a. 29,
66;
1987 a. 342;
1987 a. 403 s.
256;
1989 a. 31,
115,
187,
206,
359;
1991 a. 245,
269;
1993 a. 27,
28,
49,
238,
456,
490;
1995 a. 201,
227,
411;
1997 a. 35;
1999 a. 185;
2003 a. 111;
2005 a. 96;
2007 a. 79,
130.
895.46 Cross-reference
Cross-reference: See s.
775.06 for special procedure applying to state law enforcement officers.
895.46 Annotation
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 (1973).
895.46 Annotation
"Litigation" under sub. (1) refers only to civil proceedings. Bablitch & Bablitch v. Lincoln County,
82 Wis. 2d 574,
263 N.W.2d 218 (1978).
895.46 Annotation
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).
895.46 Annotation
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 (1979).
895.46 Annotation
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 (1980).
895.46 Annotation
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 (1981).
895.46 Annotation
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 (1981).
895.46 Annotation
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 (1982).
