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.
895.045 Annotation
Wisconsin's Modified, Modified Comparative Negligence Law. Kircher. Wis. Law. Feb. 1996.
895.048
895.048
Recovery by auto or motorboat owner limited. The owner of a motor vehicle or motorboat which, while being operated by the spouse or minor child of such owner, is damaged as the result of an accident involving another vehicle or boat, may not recover from the owner or operator of such other vehicle or boat for such damages, if the negligence of such spouse or minor child exceeds that of the operator of such other vehicle or boat. In the event that it is judicially determined that a spouse or minor operator of the motor vehicle or motorboat is found to be guilty of less than 50% of the causal negligence involved in an accident, then in that event the owner of the motor vehicle or motorboat involved shall be entitled to recover in accordance with the contributory negligence principles as laid down in
s. 895.045. For the purposes of recovery of damages by the owner under
s. 895.048, and for this purpose only, the negligence of the spouse or minor operator shall be imputed to the owner.
895.05
895.05
Damages in actions for libel. 895.05(1)
(1) The proprietor, publisher, editor, writer or reporter upon any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judicial, legislative or other public official proceeding authorized by law or of any public statement, speech, argument or debate in the course of such proceeding. This section shall not be construed to exempt any such proprietor, publisher, editor, writer or reporter from liability for any libelous matter contained in any headline or headings to any such report, or to libelous remarks or comments added or interpolated in any such report or made and published concerning the same, which remarks or comments were not uttered by the person libeled or spoken concerning the person libeled in the course of such proceeding by some other person.
895.05(2)
(2) Before any civil action shall be commenced on account of any libelous publication in any newspaper, magazine or periodical, the libeled person shall first give those alleged to be responsible or liable for the publication a reasonable opportunity to correct the libelous matter. Such opportunity shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty. The first issue published after the expiration of one week from the receipt of such notice shall be within a reasonable time for correction. To the extent that the true facts are, with reasonable diligence, ascertainable with definiteness and certainty, only a retraction shall constitute a correction; otherwise the publication of the libeled person's statement of the true facts, or so much thereof as shall not be libelous of another, scurrilous, or otherwise improper for publication, published as the libeled person's statement, shall constitute a correction within the meaning of this section. A correction, timely published, without comment, in a position and type as prominent as the alleged libel, shall constitute a defense against the recovery of any damages except actual damages, as well as being competent and material in mitigation of actual damages to the extent the correction published does so mitigate them.
895.05 History
History: 1993 a. 486.
895.05 Annotation
One who contributes nondefamatory photograph of plaintiff to newspaper to accompany defamatory article is not liable, absent knowledge or control of article. Westby v. Madison Newspapers, Inc. 81 W (2d) 1, 259 NW (2d) 691.
895.05 Annotation
Newscaster did not act with knowledge of falsity or with reckless disregard for truth by broadcasting that plaintiff had been charged with crime where newscaster was told by deputy sheriff that charges would be filed. Prahl v. Brosamle, 98 W (2d) 130, 295 NW (2d) 768 (Ct. App. 1980).
895.05 Annotation
Contract printer had no reason to know of libel and so was entitled to summary judgment. Maynard v. Port Publications, Inc. 98 W (2d) 555, 297 NW (2d) 500 (1980).
895.05 Annotation
Sub. (2) applies to non-media defendants but relates only to libelous publications in print media, not broadcast media. Hucko v. Jos. Schlitz Brewing Co. 100 W (2d) 372, 302 NW (2d) 68 (Ct. App. 1981).
895.05 Annotation
Trial court properly dismissed defamation claim based on letter by medical director charging that foundation conducted sham nonprofit operation since director established defense of truth. Fields Foundation, Ltd. v. Christensen, 103 W (2d) 465, 309 NW (2d) 125 (Ct. App. 1981).
895.05 Annotation
See note to Art. I, sec. 3, citing Denny v. Mertz, 106 W (2d) 636, 318 NW (2d) 141 (1982).
895.05 Annotation
Where former legislator who had gained notoriety within district while in office was allegedly defamed in radio broadcast localized within former district, former legislator was "public figure" for purpose of defamation action. Lewis v. Coursolle Broadcasting, 127 W (2d) 105, 377 NW (2d) 166 (1985).
895.05 Annotation
A computer bulletin board is not a periodical and not subject to sub. (2). It's In the Cards, Inc. v. Fuschetto, 193 W (2d) 429, 535 NW (2d) 11 (Ct. App. 1995).
895.05 Annotation
Publishers' privileges and liabilities regarding libel discussed. Gertz v. Robert Welch, Inc. 418 US 323.
895.05 Annotation
Public figure who sues media companies for libel may inquire into editorial processes of those responsible where proof of "actual malice" is required for recovery. Herbert v. Lando, 441 US 153 (1979).
895.05 Annotation
"Public figure" principle in libel cases discussed. Wolston v. Reader's Digest Assn., Inc. 443 US 157 (1979).
895.05 Annotation
Where wire services' accounts of judge's remarks were substantially accurate, defamation suit by judge was barred under (1). Simonson v. United Press Intern., Inc. 500 F Supp 1261 (1980).
895.05 Annotation
Defamation law of Wisconsin. Brody, 65 MLR 505 (1982).
895.05 Annotation
The "public interest or concern" test: Have we resurrected a standard that should have remained in the graveyard? 70 MLR 647 (1987).
895.052
895.052
Defamation by radio and television. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employes of any such owner, licensee or operator, shall not be liable in damages for any defamatory statement published or uttered in, or as a part of, a visual or sound broadcast by a candidate for political office in those instances in which, under the acts of congress or the rules and regulations of the federal communications commission, the broadcasting station or network is prohibited from censoring the script of the broadcast.
895.055
895.055
Gaming contracts void. 895.055(1)
(1) All promises, agreements, notes, bills, bonds, or other contracts, mortgages, conveyances or other securities, where the whole or any part of the consideration of the promise, agreement, note, bill, bond, mortgage, conveyance or other security shall be for money or other valuable thing whatsoever won or lost, laid or staked, or betted at or upon any game of any kind or under any name whatsoever, or by any means, or upon any race, fight, sport or pastime, or any wager, or for the repayment of money or other thing of value, lent or advanced at the time and for the purpose, of any game, play, bet or wager, or of being laid, staked, betted or wagered thereon shall be void.
895.055(2)
(2) This section does not apply to contracts of insurance made in good faith for the security or indemnity of the party insured.
895.055(3)
(3) This section does not apply to any promise, agreement, note, bill, bond, mortgage, conveyance or other security that is permitted under
chs. 561 to
569 or under state or federal laws relating to the conduct of gaming on Indian lands.
895.055 History
History: 1993 a. 174;
1995 a. 225.
895.055 Annotation
Puerto Rican judgment based on gambling debt was entitled to full faith and credit in Wisconsin. Conquistador Hotel Corp. v. Fortino, 99 W (2d) 16, 298 NW (2d) 236 (Ct. App. 1980).
895.056
895.056
Recovery of money wagered. 895.056(1)(a)
(a) "Property" means any money, property or thing in action.
895.056(1)(b)
(b) "Wagerer" means any person who, by playing at any game or by betting or wagering on any game, election, horse or other race, ball playing, cock fighting, fight, sport or pastime or on the issue or event thereof, or on any future contingent or unknown occurrence or result in respect to anything whatever, shall have put up, staked or deposited any property with any stakeholder or 3rd person, or shall have lost and delivered any property to any winner thereof.
895.056(2)(a)(a) A wagerer may, within 3 months after putting up, staking or depositing property with a stakeholder or 3rd person, sue for and recover the property from the stakeholder or 3rd person whether the property has been lost or won or whether it has been delivered over by the stakeholder or 3rd person to the winner.
895.056(2)(b)
(b) A wagerer may, within 6 months after any delivery by the wagerer or the stakeholder of the property put up, staked or deposited, sue for and recover the property from the winner thereof if the property has been delivered over to the winner.
895.056(3)
(3) If the wagerer does not sue for and recover the property, which was put up, staked or deposited, within the time specified under
sub. (1), any other person may, in the person's behalf and the person's name, sue for and recover the property for the use and benefit of the wagerer's family or heirs, in case of the wager's death. The suit may be brought against and property recovered from any of the following:
895.056(3)(a)
(a) The stakeholder or a 3rd person if the property is still held by the stakeholder or 3rd person, within 6 months after the putting up, staking or depositing of the property.
895.056(3)(b)
(b) The winner of the property, within one year from the delivery of the property to the winner.
895.056(4)
(4) This section does not apply to any property that is permitted to be played, bet or wagered under
chs. 561 to
569 or under state or federal laws relating to the conduct of gaming on Indian lands.
895.056 History
History: 1993 a. 174,
486;
1995 a. 225.
895.057
895.057
Action against judicial officer for loss caused by misconduct. Any judicial officer who causes to be brought in a court over which the judicial officer presides any action or proceeding upon a claim placed in the judicial officer's hands as agent or attorney for collection shall be liable in a civil action to the person against whom such action or proceeding was brought for the full amount of damages and costs recovered on such claim.
895.057 History
History: 1993 a. 486.
895.06
895.06
Recovery of divisible personalty. When personal property is divisible and owned by tenants in common and one tenant in common shall claim and hold possession of more than the tenant's share or proportion thereof his or her cotenant, after making a demand in writing, may sue for and recover the cotenant's share or the value thereof. The court may direct the jury, if necessary, in any such action to find what specific articles or what share or interest belongs to the respective parties, and the court shall enter up judgment in form for one or both of the parties against the other, according to the verdict.
895.06 History
History: 1993 a. 486.
895.14
895.14
Tenders of money and property. 895.14(1)
(1)
Tender may be pleaded. The payment or tender of payment of the whole sum due on any contract for the payment of money, although made after the money has become due and payable, may be pleaded to an action subsequently brought in like manner and with the like effect as if such tender or payment had been made at the time prescribed in the contract.
895.14(2)
(2) Tender after action commenced. A tender may be made after an action is brought on the contract of the whole sum then due, plus legal costs of suit incurred up to the time, at any time before the action is called for trial. The tender may be made to the plaintiff or attorney, and if not accepted the defendant may plead the same by answer or supplemental answer, in like manner as if it had been made before the commencement of the action, bringing into court the money so tendered for costs as well as for debt or damages.
895.14(3)
(3) Proceedings on acceptance of tender. If the tender is accepted the plaintiff or attorney shall, at the request of the defendant, sign a stipulation of discontinuance of the action for that reason and shall deliver it to the defendant; and also a certificate or notice thereof to the officer who has any process against the defendant, if requested. If costs are incurred for any service made by the officer after the tender is accepted and before the officer receives notice of the acceptance, the defendant shall pay the costs to the officer or the tender is invalid.
895.14(4)
(4) Involuntary trespass. A tender may be made in all cases of involuntary trespass before action is commenced. When in the opinion of the court or jury a sufficient amount was tendered to the party injured, agent or attorney for the trespass complained of, judgment shall be entered against the plaintiff for costs if the defendant kept the tender good by paying the money into court at the trial for the use of the plaintiff.
895.14(5)
(5) Payment into court of tender; record of deposits. 895.14(5)(a)(a) When tender of payment in full is made and pleaded, the defendant shall pay the tender in full into court before the trial of the action is commenced and notify the opposite party in writing, or be deprived of all benefit of the tender. When the sum tendered and paid into court is sufficient, the defendant shall recover the taxable costs of the action, if the tender was prior to the commencement of the action. The defendant shall recover taxable costs from the time of the tender, if the tender was after suit commenced.
895.14(5)(b)
(b) When any party, pursuant to an order or to law, deposits any money or property with the clerk of court, the clerk shall record the deposit in the minute record describing the money or property and stating the date of the deposit, by whom made, under what order or for what purpose and shall deliver a certificate of these facts to the depositor, with the volume and page of the record endorsed on the certificate.
895.14 History
History: 1981 c. 67;
1983 a. 192 ss.
274 to
279;
1983 a. 302 s.
8; Stats. 1983 s. 895.14.
895.20
895.20
Legal holidays. January 1, January 15, the 3rd Monday in February (which shall be the day of celebration for February 12 and 22), the last Monday in May (which shall be the day of celebration for May 30), July 4, the 1st Monday in September which shall be known as Labor day, the 2nd Monday in October, November 11, the 4th Thursday in November (which shall be the day of celebration for Thanksgiving), December 25, the day of holding the September primary election, and the day of holding the general election in November are legal holidays. On Good Friday the period from 11 a.m. to 3 p.m. shall uniformly be observed for the purpose of worship. In every 1st class city the day of holding any municipal election is a legal holiday, and in every such city the afternoon of each day upon which a primary election is held for the nomination of candidates for city offices is a half holiday and in counties having a population of 500,000 or more the county board may by ordinance provide that all county employes shall have a half holiday on the day of such primary election and a holiday on the day of such municipal election, and that employes whose duties require that they work on such days be given equivalent time off on other days. Whenever any of said days falls on Sunday, the succeeding Monday shall be the legal holiday.
895.20 History
History: 1971 c. 226;
1973 c. 140,
333;
1977 c. 187 s.
96; Stats. 1977 s. 757.17;
1983 a. 7;
1983 a. 192 s.
257; Stats. 1983 s. 895.20.
895.22
895.22
Wisconsin family month, week and Sunday. The month of November, in which the celebration of Thanksgiving occurs, is designated as Wisconsin Family Month, the first 7 days of that month are designated as Wisconsin Family Week and the first Sunday of that month is designated as Family Sunday. In conjunction therewith, appropriate observances, ceremonies, exercises and activities may be held under state auspices to focus attention on the principles of family responsibility to spouses, children and parents, as well as on the importance of the stability of marriage and the home for our future well-being; and the chief officials of local governments and the people of the state are invited either to join and participate therein or to conduct like observances in their respective localities.
895.22 History
History: 1973 c. 333;
1977 c. 187 s.
96; Stats. 1977 s. 757.171;
1983 a. 192 s.
258; Stats. 1983 s. 895.22;
1987 a. 27.
895.23
895.23
Indian Rights Day. July 4 is designated as "Indian Rights Day," and in conjunction with the celebration of Independence Day, appropriate exercises or celebrations may be held in commemoration of the granting by congress of home rule and a bill of rights to the American Indians. When July 4 falls on Sunday, exercises or celebrations of Indian Rights Day may be held on either the third or the fifth.
895.23 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.175;
1983 a. 192 s.
259; Stats. 1983 s. 895.23.
895.28
895.28
Remedies not merged. When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other.
895.33
895.33
Limitation of surety's liability. Any person may limit the amount of liability as a surety upon any bond or other obligation required by law or ordered by any court, judge, municipal judge or public official for any purpose. The amount of the limited liability may be recited in the body of the bond or stated in the justification of the surety. In an action brought upon the bond, no judgment may be recovered against the surety for a sum larger than the amount of the liability stated, together with the proportional share of the costs of the action. In an action brought on the bond, a surety may deposit in court the amount of the liability, whereupon the surety shall be discharged and released from any further liability under the bond.
895.33 History
History: 1979 c. 110 s.
60 (11);
1985 a. 332.
895.34
895.34
Renewal of sureties upon becoming insufficient and effects thereof. If any bail bond, recognizance, undertaking or other bond or undertaking given in any civil or criminal action or proceeding, becomes at any time insufficient, the court or judge thereof, municipal judge or any magistrate before whom such action or proceeding is pending, may, upon notice, require the plaintiff or defendant to give a new bond, recognizance or undertaking. Every person becoming surety on any such new bond, recognizance or undertaking is liable from the time the original was given, the same as if he or she had been the original surety. If any person fails to comply with the order made in the case the adverse party is entitled to any order, judgment, remedy or process to which he or she would have been entitled had no bond, recognizance or undertaking been given at any time.
895.34 History
History: 1977 c. 305.
895.34 Annotation
A precondition for this section to apply is that the bond must at one time have been sufficient. Bruer v. Town of Addison, 194 W (2d) 617, 534 NW (2d) 634 (Ct. App. 1995).
