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.
895.46 Cross-reference
Cross-reference: See s.
775.06 for special procedure applying to state law enforcement officers.
895.46 Annotation
Highway commission 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.
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.
895.46 Annotation
A public employees' insurer had no right of recovery under s. 270.58 (1), 1969 stats. [now s. 895.46 (1)] Horace Mann Ins. Co. v. Wauwatosa Bd. of Ed.
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 aldermen 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).
895.46 Annotation
Once a governmental unit decides to provide counsel, it must provide complete and full representation on all issues. Beane v. City of Sturgeon Bay,
112 Wis. 2d 609,
334 N.W.2d 235 (1983).
895.46 Annotation
Sub. (1) applied to a forfeiture action against a police officer. Crawford v. City of Ashland,
134 Wis. 2d 369,
396 N.W.2d 781 (Ct. App. 1986).
895.46 Annotation
"Any action" in sub. (1) (a) means a trial in which the issue of "scope of employment" is essential and evidence on the issue is introduced and argued. Desotelle v. Continental Cas. Co.
136 Wis. 2d 13,
400 N.W.2d 524 (Ct. App. 1986).
895.46 Annotation
In "scope of employment" cases under sub. (1) (a), consideration must be given to whether the employee was "actuated," in some measure, by a purpose to serve the employer. Olson v. Connerly,
156 Wis. 2d 488,
457 N.W.2d 479 (1990).
895.46 Annotation
A former school employee sued by the school district over her employment contract was not entitled to costs under sub. (1) (a). Pardeeville Area School District v. Bomber,
214 Wis. 2d 396,
571 N.W.2d 189 (Ct. App. 1997).
895.46 Annotation
Voting members of a commission created by 2 villages were public officers protected by s. 895.46 (1).
74 Atty. Gen. 208.
895.46 Annotation
Sections 895.35 and 895.46 apply to actions for open meetings law violations to the same extent they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating open meetings law.
77 Atty. Gen. 177.
895.46 Annotation
The University of Wisconsin has no authority to agree to hold harmless a county that incurs liability because of a university officer's torts, but common law would require the officer to indemnify the county and statutory indemnification would require the state to indemnify the officer when acting in the scope of employment.
78 Atty. Gen. 1.
895.46 Annotation
State Emergency Response Board Committee and Local Emergency Planning Committee subcommittee members appointed by a county board are entitled to indemnity for damage liability under s. 895.46 and legal representation by the attorney general under s. 165.25.
81 Atty. Gen. 17.
895.46 Annotation
This section may require indemnification for actions that are not intended to benefit the employer when those actions further the objectives of employment. Hibma v. Odegaard,
769 F.2d 1147 (1985).
895.46 Annotation
Section 893.80 (4) bars direct suits against municipalities for the torts of their employees, it does not preclude suing the officer directly and using s. 895.46 to indirectly recover from the municipality. Graham v. Sauk Prairie Police Com'n.
915 F.2d 1085 (1990).
895.46 Annotation
Sub. (1) does not prevent a state official from asserting "good faith" as a defense to a charge of infringement of civil rights. Clarke v. Cady,
358 F. Supp. 1156.
895.46 Annotation
The purpose of this section is not to transform any suit against a state employee into a suit against state, but to shield state employees from monetary loss in tort suits. Ware v. Percy,
468 F. Supp. 1266 (1979).
895.46 Annotation
A county could not be held liable for a civil rights judgment against a county judge where the judgment found that the judge was not carrying out duties of the office at the relevant time. Harris v. County of Racine,
512 F. Supp. 1273 (1981).
895.46 Annotation
If an employee is part of an inter-municipal team under s. 66.305, the agency requesting the team's services is the de facto employer for purposes of indemnification under this section. Leibenstein v. Crowe,
826 F. Supp. 1174 (1992).
895.46 Annotation
A sheriff represents the county when enforcing the law. Sovereign immunity for state officials under the 11th amendment to the U.S. constitution does not apply. Abraham v. Piechowski,
13 F. Supp.2d 1023 (1998).
895.47
895.47
Indemnification of the Wisconsin State Agencies Building Corporation and the Wisconsin State Public Building Corporation. If the Wisconsin State Agencies Building Corporation or the Wisconsin State Public Building Corporation is the defendant in an action or special proceeding in its capacity as owner of facilities occupied by any department or agents of any department of state government, the judgment as to damages and costs shall be paid by the state from the appropriation made under
s. 20.865 (1) (fm). The state, when it does not provide legal counsel to the defendant, its members, officers or employees, shall pay reasonable attorney fees and costs of defending the action regardless of the results of the litigation, unless the court or jury finds that the member, officer or employee did not act within the scope of that person's employment. Failure by the defendant to give notice to the department of justice of an action or special proceeding commenced against it, its members, officers or employees as soon as reasonably possible shall bar recovery by the defendant, its members, officers or employees from the state under this section. Attorney fees and expenses may not be recovered if the state offers the member, officer or employee legal counsel and the offer is refused.
895.47 History
History: 1977 c. 344,
447.
895.48
895.48
Civil liability exemption; emergency care, athletic events health care, hazardous substances and information concerning paternity. 895.48(1)
(1) Any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care. This immunity does not extend when employees trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, enroute to a hospital or other institution equipped with hospital facilities or at a physician's office.
895.48(1m)
(1m) Any physician or athletic trainer licensed under
ch. 448, chiropractor licensed under
ch. 446, dentist licensed under
ch. 447, emergency medical technician licensed under
s. 146.50, first responder certified under
s. 146.50 (8), physician assistant licensed under
ch. 448, registered nurse licensed under
ch. 441 or a massage therapist or bodyworker issued a license of registration under
subch. XI of ch. 440 who renders voluntary health care to a participant in an athletic event or contest sponsored by a nonprofit corporation, as defined in
s. 46.93 (1m) (c), a private school, as defined in
s. 115.001 (3r), a public agency, as defined in
s. 46.93 (1m) (e), or a school, as defined in
s. 609.655 (1) (c), is immune from civil liability for his or her acts or omissions in rendering that care if all of the following conditions exist:
895.48(1m)(a)
(a) The health care is rendered at the site of the event or contest, during transportation to a health care facility from the event or contest, or in a locker room or similar facility immediately before, during or immediately after the event or contest.
895.48(1m)(b)
(b) The physician, athletic trainer, chiropractor, dentist, emergency medical technician, first responder, physician assistant, registered nurse, massage therapist or bodyworker does not receive compensation for the health care, other than reimbursement for expenses.
895.48(2)(a)3.
3. "Hazardous substance prediction" means any declaration or estimate of the likely spread or impact of an actual discharge of a hazardous substance that is based on meteorological, mathematical, computer or similar models.
895.48(2)(a)4.
4. "Hazardous substance predictor" means any person who makes a hazardous substance prediction pursuant to a contract or agreement with a public agency or pursuant to a contract or agreement with a person who possesses or controls hazardous substances for the purpose of assisting that person in supplying a public agency with a hazardous substance prediction in the event of an actual discharge of a hazardous substance.
895.48(2)(b)
(b) Any person is immune from civil liability for his or her good faith acts or omissions related to assistance or advice which the person provides relating to an emergency or a potential emergency regarding either of the following:
895.48(2)(b)1.
1. Mitigating or attempting to mitigate the effects of an actual or threatened discharge of a hazardous substance.
895.48(2)(b)2.
2. Preventing or cleaning up or attempting to prevent or clean up an actual or threatened discharge of a hazardous substance.
895.48(2)(c)
(c) The immunity under
par. (b) does not extend to any person:
895.48(2)(c)1.
1. Whose act or omission causes in whole or in part the actual or threatened discharge and who would otherwise be liable for the act or omission;
895.48(2)(c)3.
3. Whose act or omission constitutes gross negligence or involves reckless, wanton or intentional misconduct; or
895.48(2)(c)4.
4. Who receives or expects to receive compensation, other than reimbursement for out-of-pocket expenses, for rendering the advice and assistance.
895.48(2)(d)1.1. Any hazardous substance predictor or any person who provides the technology to enable hazardous substance predictions to be made is immune from civil liability for his or her good faith acts or omissions in making that prediction or providing that technology.
895.48(2)(d)2.
2. The good faith of any hazardous substance predictor or any person who provides the technology to make a prediction is presumed in any civil action. Any person who asserts that the acts or omissions under
subd. 1. were not made in good faith has the burden of proving that assertion by clear and convincing evidence.
895.48(3)
(3) Any member of the staff of a hospital who is designated by the hospital and trained by the department of workforce development under
s. 69.14 (1) (cm) and who in good faith provides to a child's available parents written information that is provided by the department of workforce development and oral information or an audio or video presentation about the form that is prescribed by the state registrar under
s. 69.15 (3) (b) 3. and about the significance and benefits of, and alternatives to, establishing paternity, under the requirements of
s. 69.14 (1) (cm), is immune from civil liability for his or her acts or omissions in providing that oral information or audio or video presentation and written information.
895.48(4)(a)(a) Any of the following who meets the applicable requirements of
s. 146.50 (8g) and who acts within the applicable limitations of
s. 146.50 (8g) is immune from civil liability for the acts or omissions of a person in rendering in good faith emergency care by use of a semiautomatic defibrillator under
s. 146.50 (8g) to an individual who appears to be in cardiac arrest:
895.48(4)(b)
(b) The immunity specified in
par. (a) does not extend to any of the following:
895.48(4)(b)1.
1. A person whose act or omission resulting from the use or the provision for use of the semiautomatic defibrillator constitutes gross negligence.
895.48(4)(b)2.
2. A health care professional who renders emergency care for compensation and within the scope of his or her usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of an emergency or accident, enroute to a hospital or other institution equipped with hospital facilities or at a physician's office.
895.48 Annotation
The "Good Samaritan" law is discussed. 67 Atty. Gen. 218.
895.48 Annotation
Incidental benefits received by volunteer members of the National Ski Patrol in exchange for rendering emergency care to disabled skiers may result in a loss of civil liability immunity under the Good Samaritan law.
79 Atty. Gen. 194.
895.48 Annotation
The Good Samaritan statute. 62 MLR 469 (1979).
895.481
895.481
Civil liability exemption; equine activities. 895.481(1)(a)
(a) "Equine" means a donkey, hinny, horse, mule or pony.
895.481(1)(b)1.
1. Shows, fairs, competitions, performances or parades that involve any breeds of equines and any equine disciplines, including combined training, competitive trail riding, cutting, dressage, driving, endurance trail riding, English or western performance riding, grand prix jumping, horse racing, hunter and jumper shows, hunting, polo, pulling, rodeos, 3-day events and western games.
895.481(1)(b)4.
4. Riding, inspecting or evaluating an equine belonging to another, regardless of whether the owner of the equine receives monetary or other consideration for the use of the equine or permits the riding, inspection or evaluation of the equine.
895.481(1)(b)5.
5. Riding, training or driving an equine or being a passenger on an equine.
895.481(1)(b)6.
6. Riding, training or driving a vehicle pulled by an equine or being a passenger on a vehicle pulled by an equine.
895.481(1)(c)
(c) "Equine activity sponsor" means a person, whether operating for profit or nonprofit, who organizes or provides the facilities for an equine activity, including owners or operators of arenas, clubs, fairs, schools, stables and therapeutic riding programs.
895.481(1)(d)
(d) "Equine professional" means a person engaged for compensation in the rental of equines or equine equipment or tack or in the instruction of a person in the riding or driving of an equine or in being a passenger upon an equine.
895.481(1)(e)
(e) "Inherent risk of equine activities" means a danger or condition that is an integral part of equine activities, including all of the following:
895.481(1)(e)1.
1. The propensity of an equine to behave in a way that may result in injury or death to a person on or near it.
895.481(1)(e)2.
2. The unpredictability of an equine's reaction to a sound, movement or unfamiliar object, person or animal.
895.481(1)(e)4.
4. The potential for a person participating in an equine activity to act in a negligent manner, to fail to control the equine or to not act within his or her ability.
895.481(1)(e)5.
5. Natural hazards, including surface and subsurface conditions.
895.481(1)(f)
(f) "Property" means real property and buildings, structures and improvements on the real property.
895.481(1)(g)
(g) "Spectator" means a person who attends or watches an equine activity but does not participate in the equine activity or perform any act or omission related to the equine activity that contributes to the injury or death of a participant in the equine activity.
895.481(2)
(2) Except as provided in
subs. (3) and
(6), a person, including an equine activity sponsor or an equine professional, is immune from civil liability for acts or omissions related to his or her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities.
