895.70(2)(a)(a) Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, counseling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact. Consent is not an issue in an action under this section, unless the sexual contact that is the subject of the action occurred more than 6 months after the psychotherapy, counseling, assessment or treatment ended.
895.70(2)(b)
(b) Notwithstanding
ss. 801.09 (1),
801.095,
802.04 (1) and
815.05 (1g) (a), in an action brought under this section, the plaintiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff's attorney shall supply the court the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.
895.70(2)(c)
(c) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect:
895.70(2)(c)1.
1. A plaintiff who is using initials in an action under this section from annoyance, embarrassment, oppression or undue burden that would arise if any information identifying the plaintiff were made public.
895.70(2)(c)2.
2. A plaintiff in an action under this section from unreasonably long, repetitive or burdensome physical or mental examinations.
895.70(2)(c)3.
3. The confidentiality of information which under law is confidential, until the information is provided in open court in an action under this section.
895.70(3)
(3) Punitive damages. A court or jury may award punitive damages to a person bringing an action under this section.
895.70(4)
(4) Calculation of statute of limitations. An action under this section is subject to
s. 893.585.
895.70(5)
(5) Silence agreements. Any provision in a contract or agreement relating to the settlement of any claim by a patient against a therapist that limits or eliminates the right of the patient to disclose sexual contact by the therapist to a subsequent therapist, the department of regulation and licensing, the department of health and family services, the patients compensation fund peer review council or a district attorney is void.
895.70 Annotation
Under sub. (2) consent is not an issue and, as such, an instruction regarding the victim's contributory negligence was improper. Block v. Gomez,
201 Wis. 2d 795,
549 N.W.2d 783 (Ct. App. 1996).
895.70 Annotation
This section grants no cause of action against a therapist's employer. L.L.N. v. Clauder,
203 Wis. 2d 570,
552 N.W.2d 879 (Ct. App. 1996).
895.73
895.73
Service representatives. 895.73(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.
895.73(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.
895.73(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. 767.24 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.
895.73(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.
895.73 History
History: 1991 a. 276;
1995 a. 220.
895.75
895.75
Physical injury, emotional distress, loss or damage suffered by members of certain groups. 895.75(1)(1) Any person who suffers physical injury to his or her person or emotional distress or damage to or loss of his or her property by reason of conduct which is prohibited under
s. 943.012 or which is grounds for a penalty increase under
s. 939.645 has a civil cause of action against the person who caused the physical injury, emotional distress, damage or loss.
895.75(2)
(2) The burden of proof in a civil action under
sub. (1) rests with the person who suffers the physical injury, emotional distress, damage or loss to prove his or her case by a preponderance of the credible evidence.
895.75(3)
(3) If the plaintiff prevails in a civil action under
sub. (1), he or she may recover special and general damages, including damages for emotional distress; punitive damages; and costs, including all reasonable attorney fees and other costs of the investigation and litigation which were reasonably incurred.
895.75(4)
(4) A person may bring a civil action under
sub. (1) regardless of whether there has been a criminal action related to the physical injury, emotional distress, loss or damage under
sub. (1) and regardless of the outcome of any such criminal action.
895.75(5)
(5) This section does not limit the right of a person to recover from any parent or parents under
s. 895.035.
895.75 History
History: 1987 a. 348.
895.76
895.76
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.
895.76 History
History: 1997 a. 133.
895.77
895.77
Injury caused by criminal gang activity. 895.77(1)(c)
(c) "Political subdivision" means a city, village, town or county.
895.77(2)(a)(a) The state, a school district or a political subdivision may bring an action in circuit court for any expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources if the expenditure of money by the state, a school district or a political subdivision is the result of criminal gang activity.
895.77(2)(b)
(b) Any person who suffers physical injury or incurs property damage or loss resulting from any criminal gang activity has a cause of action for the actual damages sustained. The burden of proof in a civil action under this paragraph rests with the person who suffers the physical injury or property damage or loss to prove his or her case by a preponderance of the credible evidence.
895.77(2)(c)
(c) The action may be brought against the criminal gang or against any member, leader, officer or organizer of a criminal gang who participates in a criminal gang activity or who authorizes, causes, orders, ratifies, requests or suggests a criminal gang activity. An action brought under this subsection shall also name as defendants the criminal gang and any criminal gang members that participated in the criminal gang activity. An action brought under this subsection may name, as a class of defendants, all unknown criminal gang members.
895.77(2)(d)
(d) The plaintiff may bring a civil action under this subsection regardless of whether there has been a criminal action related to the injury, property damage or loss or expenditure of money under
par. (a) or
(b) and regardless of the outcome of that criminal action.
895.77(3)
(3) Service of process. A summons may be served individually upon any member, leader, officer or organizer of a criminal gang by service as provided under
s. 801.11 (1),
(2),
(5) or
(6) where the claim sued upon arises out of or relates to criminal gang activity within this state sufficient to subject a defendant to personal jurisdiction under
s. 801.05 (2) to
(10). A judgment rendered after service under this subsection is a binding adjudication against the criminal gang.
895.77(4)
(4) Injunctive relief, damages, costs and fees. 895.77(4)(a)(a) The court, upon the request of the state, a school district or a political subdivision, may grant an injunction restraining an individual from committing an act that would injure the state, a school district or a political subdivision or may order such other relief as the court determines is proper.
895.77(4)(b)
(b) The court may order a criminal gang member to divest himself or herself of any interest or involvement in any criminal gang activity and may restrict a criminal gang member from engaging in any future criminal gang activity.
895.77(4)(c)
(c) In addition to the costs allowed under
s. 814.04, a final judgment in an action under
sub. (2) (a) in favor of the plaintiff shall include compensatory damages for the expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources caused by the criminal gang activity and compensation for the costs of the investigation and prosecution and reasonable attorney fees.
895.77(4)(d)
(d) In addition to the costs allowed under
s. 814.04, a final judgment in an action under
sub. (2) (b) in favor of the plaintiff shall include attorney fees and the costs of the investigation and litigation.
895.77(4)(e)
(e) The final judgment in favor of the plaintiff in an action under
sub. (2) (a) or
(b) may include punitive damages assessed against a criminal gang leader, officer, organizer or member who is found to have participated in criminal gang activity.
895.77 History
History: 1993 a. 98.
895.79
895.79
Damage to certain machines. 895.79(1)
(1) An owner of a machine operated by the insertion of coins, currency, debit cards or credit cards that is damaged by a person acting with the intent to commit a theft from that machine may bring an action against the person.
895.79(2)
(2) The owner has the burden of proving his or her case under
sub. (1) by a preponderance of the credible evidence.
895.79(3)
(3) If the owner prevails in a civil action under
sub. (1), he or she may recover all of the following:
895.79(3)(b)
(b) Costs, including all reasonable attorney fees and other costs of the investigation and litigation that were reasonably incurred.
895.79(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.
895.79 History
History: 1995 a. 133.
895.80
895.80
Property damage or loss. 895.80(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 or
943.61, or by reason of intentional conduct that occurs on or after April 28, 1998, and that is prohibited under
s. 943.201, has a cause of action against the person who caused the damage or loss.
895.80(2)
(2) The burden of proof in a civil action under
sub. (1) is with the person who suffers damage or loss to prove his or her case by a preponderance of the credible evidence.
895.80(3)
(3) If the plaintiff prevails in a civil action under
sub. (1), he or she may recover all of the following:
895.80(3)(b)
(b) All costs of investigation and litigation that were reasonably incurred.
895.80(4)
(4) A person may bring a civil action under
sub. (1) regardless of whether there has been a criminal action related to the loss or damage under
sub. (1) and regardless of the outcome of any such criminal action.
895.80(5)
(5) No person may bring a cause of action under both this section and
s. 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.
895.80 History
History: 1995 a. 27;
1997 a. 101.
895.85
895.85
Punitive damages. 895.85(1)(a)
(a) "Defendant" means the party against whom punitive damages are sought.
895.85(1)(b)
(b) "Double damages" means those court awards made under a statute providing for twice, 2 times or double the amount of damages suffered by the injured party.
895.85(1)(c)
(c) "Plaintiff" means the party seeking to recover punitive damages.
895.85(1)(d)
(d) "Treble damages" means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.
895.85(2)
(2) Scope. This section does not apply to awards of double damages or treble damages, or to the award of exemplary damages under
ss. 46.90 (6) (c),
51.30 (9),
51.61 (7),
103.96 (2),
134.93 (5),
146.84 (1) (b) and
(bm),
153.85,
252.14 (4),
252.15 (8) (a),
610.70 (7) (b),
943.245 (2) and
(3) and
943.51 (2) and
(3).
895.85(3)
(3) Standard of conduct. The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
895.85(4)
(4) Procedure. If the plaintiff establishes a prima facie case for the allowance of punitive damages:
895.85(4)(a)
(a) The plaintiff may introduce evidence of the wealth of a defendant; and
895.85(4)(b)
(b) The judge shall submit to the jury a special verdict as to punitive damages or, if the case is tried to the court, the judge shall issue a special verdict as to punitive damages.
895.85(5)
(5) Application of joint and several liability. The rule of joint and several liability does not apply to punitive damages.
895.85 Note
NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85.
895.85 Annotation
Punitive damages may be awarded in products liability cases. Judicial controls over punitive damage awards are established. Wangen v. Ford Motor Co.
97 Wis. 2d 260,
294 N.W.2d 437 (1980).
895.85 Annotation
Guidelines for submission of punitive damages issues to the jury in a products liability case is discussed. Walter v. Cessna Aircraft Co.
121 Wis. 2d 221,
358 N.W.2d 816 (Ct. App. 1984).
895.85 Annotation
Regardless of the classification of the underlying cause of action, punitive damages are recoverable if the defendant's conduct was "outrageous". Insurance coverage for punitive damages is not contrary to public policy. Brown v. Maxey,
124 Wis. 2d 426,
369 N.W.2d 677 (1985).
895.85 Annotation
In awarding punitive damages the factors to be considered are the grievousness of the wrongdoer's acts, the degree of malicious intent, and the potential damage that might have been caused by the acts and the defendant's ability to pay. An award is excessive if it inflicts a punishment or burden that is disproportionate to the wrongdoing. That a judge provided a means for the defendant to avoid paying the punitive damages awarded did not render the award invalid. Gianoli v. Pfleiderer,
209 Wis. 2d 509,
563 N.W.2d 562 (Ct. App. 1997).
895.85 Annotation
Nominal damages may support a punitive damage award in an action for intentional trespass. A grossly excessive punishment violates due process. Whether punitive damages violate due process depends on the reprehensibility of the conduct, the disparity between the harm suffered and the punitive damages awarded and the difference between the award and other civil or criminal penalties authorized or imposed. Jacque v. Steenberg Homes,
209 Wis. 2d 605,
563 N.W.2d 154 (1997).
895.85 Annotation
A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee,
217 Wis. 2d 378,
571 N.W.2d 23 (1998).
895.85 Annotation
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
895.85 Annotation
The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Unified Catholic Schools of Beaver Dam Education Association v. Universal Card Services Corp.
34 F. Supp.2d 714, (1999).
