LRB-4515/1
RPN:wlj:km
1999 - 2000 LEGISLATURE
March 29, 2000 - Introduced by Representative Pocan. Referred to Committee on
Judiciary and Personal Privacy.
AB945,1,2
1An Act to create 895.74 of the statutes;
relating to: creating a private action
2for injuries resulting from the failure to comply with a public contract.
Analysis by the Legislative Reference Bureau
Generally, if a person fails to comply with all of the provisions of a contract, the
other party to the contract may bring a suit against the person for damages related
to the failure or for specific performance of the contract provisions. Under current
law, if a contractor obstructs a street or sidewalk while performing the contracted
duties, the contractor is required to put up and maintain barriers and lights to
prevent accidents. If the contractor fails to provide the barriers and lights, and that
failure results in an accident, the contractor is liable for damages caused by that
failure. Current law also requires the contract to include a provision to this effect,
and a provision making the contractor liable for any negligent performance of the
contract.
In Sussex Tool and Supply, Inc. v. Mainline Sewer and Water, Inc., No. 98-2649
(Nov. 1999), the Wisconsin court of appeals held that a business whose profits
suffered due to decreased road accessibility could not sue the private contractor
constructing the sewer under contract with a village. The contract required the
contractor to provide vehicular access at all times to the properties affected by the
project. The court held that the business did not have standing as a beneficiary of
the contract because a public works project benefits the public as a whole, not
individual public members. The court said that an individual may recover his or her
damages resulting from the failure to fulfill the provisions of a public works contract
only if the contract specifically provides for damage awards to individual public
members. The court denied the business from recovering under a negligence claim
because the court felt that to do so would open a field of liability with no just or
sensible stopping point.
This bill allows an individual to sue a private contractor if the individual suffers
physical injury, sickness or death as a result of the failure of the private contractor
to perform any provision of a contract between the contractor and a governmental
unit. The bill places the burden of proof upon the injured individual to prove his or
her case by a preponderance of the evidence. Under the bill, if the individual
prevails, he or she may recover litigation costs, including reasonable attorney fees.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB945, s. 1
1Section
1. 895.74 of the statutes is created to read:
AB945,2,5
2895.74 Private action for physical injury, sickness or death. (1) In this
3section, "governmental unit" means the state, any county, city, village or town, or any
4political subdivision, department, division, board or agency of the state, county, city,
5village or town.
AB945,2,10
6(2) Except as provided in ss. 895.48 (2) (b), 895.482 (2), 895.483 (1), 895.485 (2)
7and (4), 895.51 (2) and (3) and 895.517 (2) any individual who suffers physical injury,
8sickness or death as the result of the failure of a private person to perform any
9provision of a contract between that private person and a governmental unit has a
10cause of action against that private person for that physical injury, sickness or death.
AB945,2,13
11(3) The burden of proof in a civil action under sub. (2) rests with the individual
12who suffers the physical injury, sickness or death to prove his or her case by a
13preponderance of the credible evidence.
AB945,3,2
14(4) If the plaintiff prevails in a civil action under sub. (2), he or she may recover
15special and general damages, punitive damages, costs of the investigation and
1litigation which were reasonably incurred and, notwithstanding s. 814.04 (1),
2reasonable attorney fees.
AB945,3,54
(1) This act first applies to contracts entered into on the effective date of this
5subsection.
