895.01 Annotation
Punitive damages incident to damages for pain and suffering of decedent may be awarded to the estate. Wangen v. Ford Motor Co. 97 W (2d) 260, 294 NW (2d) 437 (1980).
895.01 Annotation
Paternity action may not be brought against deceased putative father. Paternity of N. L. B., 140 W (2d) 400, 411 NW (2d) 144 (Ct. App. 1987).
895.01 Annotation
Actions under 551.41 and 551.59 survive death of wrongdoer. Continental Assur. v. American Bankshares Corp. 483 F Supp. 175 (1980).
895.02
895.02
Measure of damages against executor. When any action mentioned in
s. 895.01 (1) shall be prosecuted to judgment against the executor or administrator the plaintiff shall be entitled to recover only for the value of the goods taken including any unjust enrichment of the defendant, or for the damages actually sustained, without any vindictive or exemplary damages or damages for alleged outrage to the feelings of the injured party.
895.02 History
History: Sup. Ct. Order, 67 W (2d) 585, 784 (1975);
1977 c. 176.
895.03
895.03
Recovery for death by wrongful act. Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.
895.03 Annotation
A complaint alleging the defendant shot plaintiff's husband and that the shooting was a wrongful act is not demurrable. Kelly v. Mohrhusen, 50 W (2d) 337, 184 NW (2d) 149.
895.03 Annotation
It is sufficient if the death was caused by a wrongful act, neglect or default in this state; it is not necessary that the death occur here. The statute includes cases dealing with breach of warranty arising out of contract. Schnabl v. Ford Motor Co. 54 W (2d) 345, 195 NW (2d) 602, 198 NW (2d) 161.
895.03 Annotation
A decedent must have had an actionable claim for damages at the time of death for wrongful death cause of action to exist; where statute of limitations would have barred decedent from bringing medical malpractice action, had he lived, wrongful death action based on the alleged malpractice was barred. Miller v. Luther, 170 W (2d) 429, 489 NW (2d) 651 (Ct. App. 1992).
895.031
895.031
Recovery from estate of wrongdoer. Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then in every such case, the wrongdoer who would have been liable if death had not ensued, although such wrongdoer shall die prior to the time of death of such injured person, shall be liable to an action for damages notwithstanding the wrongdoer's prior death and notwithstanding the death of the person injured; provided that such action shall be brought for a death caused in this state. Any right of action which may accrue by such injury to the person of another although the death of the wrongdoer occurred prior thereto shall be enforced by bringing an action against the executor or administrator or personal representative of such deceased wrongdoer.
895.031 History
History: 1993 a. 486.
895.035
895.035
Parental liability for acts of minor child. 895.035(1)(a)(a) In this section, "custody" means either legal custody of a child under a court order under
s. 767.23 or
767.24, custody of a child under a stipulation under
s. 767.10 or actual physical custody of a child. "Custody" does not include legal custody, as defined under
s. 48.02 (12), by an agency or a person other than a child's birth or adoptive parent.
895.035(1)(b)
(b) In determining which parent has custody of a child for purposes of this section, the court shall consider which parent had responsibility for caring for and supervising the child at the time the act that caused the injury, damage or loss occurred.
895.035(2)
(2) The parent or parents with custody of a minor child, in any circumstances where he, she or they may not be liable under the common law, are liable for damages to property, for the cost of repairing or replacing property or removing the marking, drawing, writing or etching from property regarding a violation under
s. 943.017, for the value of unrecovered stolen property or for personal injury attributable to a wilful, malicious or wanton act of the child. The parent or parents with custody of their minor child are jointly and severally liable with the child for the damages imposed under
s. 943.51 for their child's violation of
s. 943.50.
895.035(2g)
(2g) The parent or parents with custody of a minor child are liable for the cost of the repair or replacement of, or the removal of the etching, marking, drawing or writing from, property damaged as the result of a violation of an ordinance that prohibits intentional etching or marking, drawing or writing with paint, ink or other substance on the physical property of another without the other's consent.
895.035(2m)(a)(a) If a child fails to pay restitution under
s. 938.245,
938.32,
938.34 (5),
938.343 (4) or
938.345 as ordered by a court assigned to exercise jurisdiction under
chs. 48 and
938 or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the child will not pay restitution as ordered or agreed to, the victim, the victim's insurer, the representative of the public interest under
s. 938.09 or the agency, as defined in
s. 938.38 (1) (a), supervising the child may petition the court assigned to exercise jurisdiction under
chs. 48 and
938 to order that the amount of restitution unpaid by the child be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the victim or the victim's insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim's insurer, or both, from commencing another action seeking compensation from the child or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim's insurer.
895.035(2m)(b)
(b) If a child fails to pay a forfeiture as ordered by a court assigned to exercise jurisdiction under
chs. 48 and
938 or a municipal court or if it appears likely that the child will not pay the forfeiture as ordered, the representative of the public interest under
s. 938.09, the agency, as defined in
s. 938.38 (1) (a), supervising the child or the law enforcement agency that issued the citation to the child may petition the court assigned to exercise jurisdiction under
chs. 48 and
938 to order that the amount of the forfeiture unpaid by the child be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.
895.035(2m)(bm)1.1. Before issuing an order under
par. (a) or
(b), the court assigned to exercise jurisdiction under
chs. 48 and
938 shall give the child and the parent notice of the intent to issue the order and an opportunity to be heard regarding the order. The court shall give the child and the parent an opportunity to present evidence as to the amount of the restitution or forfeiture unpaid, but not as to the amount of the restitution or forfeiture originally ordered. The court shall also give the child and the parent an opportunity to present evidence as to the reason for the failure to pay the restitution or forfeiture and the ability of the child or the parent to pay the restitution or forfeiture. In considering the ability of the child or the parent to pay the restitution or forfeiture, the court may consider the assets, as well as the income, of the child or the parent and may consider the future ability of the child or parent to pay the restitution or forfeiture within the time specified in
s. 893.40.
895.035(2m)(bm)2.
2. In proceedings under this subsection, the court assigned to exercise jurisdiction under
chs. 48 and
938 may take judicial notice of any deferred prosecution agreement, consent decree, dispositional order, sentence, extension of a consent decree, dispositional order or sentence or any other finding or order in the records of the child maintained by that court or the municipal court.
895.035(2m)(bm)3.
3. In proceedings under this subsection, the child and the parent may retain counsel of their own choosing at their own expense, but a child or a parent has no right to be represented by appointed counsel in a proceeding under this subsection.
895.035(2m)(c)
(c) The court assigned to exercise jurisdiction under
chs. 48 and
938 may order that the child perform community service work for a public agency or nonprofit charitable organization that is designated by the court in lieu of making restitution or paying the forfeiture. If the parent agrees to perform community service work in lieu of making restitution or paying the forfeiture, the court may order that the parent perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the child or parent to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the restitution or forfeiture by the minimum wage established under
ch. 104 for adults in nonagriculture, nontipped employment. The court shall ensure that the child or parent is provided with a written statement of the terms of the community service order and that the community service order is monitored.
895.035(3)
(3) An adjudication under
s. 938.31 that the child violated a civil law or ordinance, is delinquent or is in need of protection and services under
s. 938.13 (12), based on proof that the child committed the act, subject to its admissibility under
s. 904.10, shall, in an action under
sub. (1), stop a child's parent or parents from denying that the child committed the act that resulted in the injury, damage or loss.
895.035(4)
(4) Except for recovery for retail theft under
s. 943.51, the maximum recovery from any parent or parents may not exceed the amount specified in
s. 799.01 (1) (d) for damages resulting from any one act of a child in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court. If 2 or more children in the custody of the same parent or parents commit the same act the total recovery may not exceed the amount specified in
s. 799.01 (1) (d), in addition to taxable costs and disbursements. The maximum recovery from any parent or parents for retail theft by their minor child is established under
s. 943.51.
895.035(5)
(5) This section does not limit the amount of damages recoverable by an action against a child or children except that any amount so recovered shall be reduced and apportioned by the amount received from the parent or parents under this section.
895.035 Annotation
See note to 343.15, citing Swanigan v. State Farm Ins. Co. 99 W (2d) 179, 299 NW (2d) 234 (1980).
895.035 Annotation
See note to 343.15, citing Jackson v. Ozaukee County, 111 W (2d) 462, 331 NW (2d) 338 (1983).
895.035 Annotation
This section imposes absolute liability on parents once elements have been established. Accordingly, defense of contributory negligence was unavailable to parents. First Bank Southeast v. Bentkowski, 138 W (2d) 283, 405 NW (2d) 764 (Ct. App. 1987).
895.035 Annotation
This section does not apply to placement agencies or foster parents. 66 Atty. Gen. 164.
895.035 Annotation
For purposes of sub. (2), 20 separate sexual assaults were not a single continuing act but each was a separate act for which there could be parental liability. N.E.M. v. Strigel, 198 W (2d) 720, 543 NW (2d) 821 (Ct. App. 1995).
895.035 Annotation
The constitutional validity of parental liability statutes. O'Connor, 55 MLR 584.
895.037
895.037
Abortions on or for a minor without parental consent or judicial waiver. 895.037(2)(a)(a) Any person who, in violation of
s. 48.375 (4), intentionally performs or induces an abortion on or for a minor whom the person knows or has reason to know is not an emancipated minor may be required to forfeit not more than $10,000.
895.037(3)(a)(a) A person who intentionally violates
s. 48.375 (4) is liable to the minor on or for whom the abortion was performed or induced and to the minor's parent, guardian and legal custodian for damages arising out of the performance or inducement of the abortion including, but not limited to, damages for personal injury and emotional and psychological distress.
895.037(3)(b)
(b) If a person who has been awarded damages under
par. (a) proves by clear and convincing evidence that the violation of
s. 48.375 (4) was wilful, wanton or reckless, that person shall also be entitled to punitive damages.
895.037(3)(c)
(c) A conviction under
sub. (2) (a) is not a condition precedent to bringing an action, obtaining a judgment or collecting that judgment under this subsection.
895.037(3)(d)
(d) A person who recovers damages under
par. (a) or
(b) may also recover reasonable attorney fees incurred in connection with the action, notwithstanding
s. 814.04 (1).
895.037(3)(e)
(e) A contract is not a defense to an action under this subsection.
895.037(3)(f)
(f) Nothing in this subsection limits the common law rights of parents, guardians, legal custodians and minors.
895.037(4)
(4) Confidentiality. The identity of a minor who is the subject of an action under this section and the identity of the minor's parents, guardian and legal custodian shall be kept confidential and may not be disclosed, except to the court, the parties, their counsel, witnesses and other persons approved by the court. All papers filed in and all records of a court relating to an action under this section shall identify the minor as "Jane Doe" and shall identify her parents, guardian and legal custodian by initials only. All hearings relating to an action under this section shall be held in chambers unless the minor demands a hearing in open court and her parents, guardian or legal custodian do not object. If a public hearing is not held, only the parties, their counsel, witnesses and other persons requested by the court, or requested by a party and approved by the court, may be present.
895.037 History
History: 1991 a. 263.
895.037 Annotation
Essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 US 833, 120 LEd 2d 674 (1992).
895.04
895.04
Plaintiff in wrongful death action. 895.04(1)
(1) An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.
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 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).
