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 $10,000,
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 $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.
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 wrongful death actions constitute changes in substantive rights and not mere remedial changes. Bradley v. Knutson,
62 Wis. 2d 432,
215 N.W.2d 369 (1974).
895.04 Annotation
A parent may maintain an action for loss of aid, comfort, society, and companionship of an injured minor child on the condition that the parents' cause of action is combined with that of the child for the child's personal injuries. Shockley v. Prier,
66 Wis. 2d 394,
225 N.W.2d 495 (1975).
895.04 Annotation
In an action for wrongful death by 2 children of the deceased, the plaintiffs' failure to join 3 other siblings who would otherwise have been indispensable parties was not fatal to the court's subject matter jurisdiction because affidavits submitted to the trial court indicated that the 3 siblings were unavailable. Kochel v. Hartford Accident & Indemnity Co.
66 Wis. 2d 405,
225 N.W.2d 604 (1975).
895.04 Annotation
A judgment under sub. (2) means a final, not interlocutory, judgment. Collins v. Gee,
82 Wis. 2d 376,
263 N.W.2d 158 (1978).
895.04 Annotation
The trial court in a wrongful death action should inform the jury of statutory limitations on recovery, if any. Peot v. Ferraro,
83 Wis. 2d 727,
266 N.W.2d 586 (1978).
895.04 Annotation
A posthumous illegitimate child may not maintain an action for the wrongful death of the putative father. Robinson v. Kolstad,
84 Wis. 2d 579,
267 N.W.2d 886 (1978).
895.04 Annotation
This section does not require that proceeds be equally divided between parents. Keithley v. Keithley,
95 Wis. 2d 136,
289 N.W.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 Wis. 2d 260,
294 N.W.2d 437 (1980).
895.04 Annotation
This section does not permit an estate to recover, on its own behalf, damages for the decedent's pecuniary loss. Weiss v. Regent Properties, Ltd.
118 Wis. 2d 225,
346 N.W.2d 766 (1984).
895.04 Annotation
If a decedent's negligence was greater than any individual tortfeasor's, s. 895.045 bars recovery under s. 895.04 (7). Delvaux v. Vanden Langenberg,
130 Wis. 2d 464,
387 N.W.2d 751 (1986).
895.04 Annotation
A spouse's claim under sub. (4) for loss of society and companionship is additional to a common law claim for loss of consortium prior to the death of the deceased. Kottka v. PPG Industries, Inc.
130 Wis. 2d 499,
388 N.W.2d 160 (1986).
895.04 Annotation
A person who "feloniously and intentionally" kills his or her spouse is not a surviving spouse for purposes of sub. (2) and is treated as having predeceased the decedent. Stienbarth v. Johannes,
144 Wis. 2d 159,
423 N.W.2d 540 (1988).
895.04 Annotation
"Pecuniary injury" under sub. (4) includes the loss of any benefit, including social security disability benefits, that a plaintiff would have received from decedent. Estate of Holt v. State Farm,
151 Wis. 2d 455,
444 N.W.2d 453 (Ct. App. 1989).
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 Wis. 2d 59,
501 N.W.2d 828 (Ct. App. 1993).
895.04 Annotation
The damage limitation under sub. (4) is inapplicable to medical malpractice actions in which death resulted. Sub. (2) does not prevent a minor from bringing an action for a loss of companionship when malpractice causes a parent's death, including when the decedent is survived by a spouse. Jelinik v. St. Paul Fire & Casualty Ins. Co.
182 Wis. 2d 1,
512 N.W.2d 764 (1994).
895.04 Annotation
Although only one parent was the named insured under an uninsured motorist insurance policy paying benefits for the wrongful death of the parents' child, this section requires payment of the proceeds to both parents. Bruflat v. Prudential Property & Casualty Insurance Co. 2000 WI 69,
233 Wis. 2d 523,
608 N.W.2d 371.
895.04 Annotation
Retroactive increases in the statutory damage limits were unconstitutional. Neiman v. American National Property & Casualty Co. 2000 WI 83,
236 Wis. 2d 411,
613 N.W.2d 160. See also Schultz v. Natwick, 2002 WI 125, ___ Wis. 2d ___, ___ N.W.2d ___.
895.04 Annotation
There may not be separate recovery for both an estate and its 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).
895.045 Cross-reference
Cross-reference: See s.
891.44 for conclusive presumption that child under 7 cannot be guilty of contributory negligence.
895.045 Annotation
Ordinary negligence can be compared with negligence founded upon the safe-place statute, and in making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. It is not prejudicial error not to call attention to the different standards of care in a safe-place case when appropriate jury instructions are used. Lovesee v. Allied Development Corp.
45 Wis. 2d 340,
173 N.W.2d 196 (1970).
895.045 Annotation
Adopting the doctrine of pure comparative negligence is a legislative matter. Vincent v. Pabst Brewing Co.
47 Wis. 2d 120,
177 N.W.2d 513 (1970).
895.045 Annotation
There is no distinction between active and passive negligence as to responsibility for injury or full indemnity to a tortfeasor whose negligence was passive. Pachowitz v. Milwaukee & Suburban Transport Corp.
56 Wis. 2d 383,
202 N.W.2d 268 (1972).
895.045 Annotation
For the purpose of applying the comparative negligence statute, both the causes of action for medical expenses and loss of consortium are derivative. The causal negligence of the injured spouse bars or limits the recovery of the claiming spouse pursuant to the terms of the statute. White v. Lunder,
66 Wis. 2d 563,
225 N.W.2d 442 (1975).
895.045 Annotation
The contributory negligence of the plaintiff-spectator in viewing an auto race was not greater than defendants' negligence as a matter of law when the plaintiff did not realize that watching from a curve would be more dangerous than sitting in the grandstand, was not aware that tires would fly into the spectator area, there was no warning of potential dangers, and she was watching the race closely immediately prior to the accident. Kaiser v. Cook,
67 Wis. 2d 460,
227 N.W.2d 50 (1975).
895.045 Annotation
The trial court's denial of a motion by 2 employee-defendants to direct the jury to consider the employer's negligence in its special verdict, even though the employer's liability extended only to workers compensation, was error. Connar v. West Shore Equipment,
68 Wis. 2d 42,
227 N.W.2d 660 (1975).
895.045 Annotation
The trial court's instruction to the jury to compute not all of the damages plaintiff suffered but only that portion caused by the defendant's negligence was erroneous. This section requires the jury to find 100% of the plaintiff's damages, which are then reduced by the amount of contributory negligence. Nimmer v. Purtell,
69 Wis. 2d 21,
230 N.W.2d 258 (1975).
895.045 Annotation
Conduct constituting implied or tacit assumption of risk is not a bar to an action for negligence. Polsky v. Levine,
73 Wis. 2d 547,
263 N.W.2d 204 (1976).
895.045 Annotation
A minor injured during employment cannot be charged with contributory negligence when the employment is in violation of child labor laws. Tisdale v. Hasslinger,
79 Wis. 2d 194,
255 N.W.2d 314 (1977).
895.045 Annotation
When the court granted judgment notwithstanding the verdict regarding 2 of several defendants found causally negligent, and the percentage of negligence reallocated affected damages but not liability, the plaintiffs should have been given the option of a proportional reduction of the judgment or a new trial. Chart v. General Motors Corp.
80 Wis. 2d 91,
258 N.W.2d 680 (1977).
895.045 Annotation
If a court can find as matter of law that a party is causally negligent, contrary to the jury's answer, and the jury attributes some degree of comparative negligence to that party, the court should change the causal negligence answer and permit the jury's comparison to stand. Ollinger v. Grall,
80 Wis. 2d 213,
258 N.W.2d 693 (1977).
895.045 Annotation
When blowing snow obstructed a driver's vision, but the driver did not reduce speed, and a parked truck on the highway "loomed up" out of the snow, the driver was causally negligent as matter of law. Nelson v. Travelers Ins. Co.
80 Wis. 2d 272,
259 N.W.2d 48 (1977).
895.045 Annotation
The "emergency doctrine" relieves a person for liability for his actions when that person is faced with a sudden emergency he or she did not create. The "rescue rule" applies even though the action of the rescuer is deliberate and taken after some planning and consideration. Rescuers will not be absolved of all negligence if their actions are unreasonable under the circumstances. Cords v. Anderson,
80 Wis. 2d 525,
259 N.W.2d 672 (1977).
895.045 Annotation
The negligence of a tortfeasor dismissed from a lawsuit on summary judgment as being less or equally negligent as the plaintiff can be considered by the jury in apportioning the total causal negligence of the remaining parties. Gross v. Midwest Speedways, Inc.
81 Wis. 2d 129,
260 N.W.2d 36 (1977).
895.045 Annotation
Negligence per se arising out of a breach of a safety statute may be compared with common law negligence. Locicero v. Interpace Corp.
83 Wis. 2d 876,
266 N.W.2d 423 (1978).
895.045 Annotation
Contributory negligence, if proved, is a defense in a strict liability case. Austin v. Ford Motor Co.,
86 Wis. 2d 628,
273 N.W.2d 233 (1979).
895.045 Annotation
In a safe place case, comparative negligence instructions need not direct the jury to consider the defendant's higher duty of care. Brons v. Bischoff,
89 Wis. 2d 80,
277 N.W.2d 854 (1979).
895.045 Annotation
A motorist injured while fleeing the police was, as matter of law, more negligent than the pursuing officer. Brunette v. Employers Mutual Liability Insurance Co.
107 Wis. 2d 361,
320 N.W.2d 43 (Ct. App. 1982).
895.045 Annotation
Failure to give the jury an emergency instruction was reversible error, despite the plaintiff's violation of several safety statutes. When an emergency instruction is appropriate is discussed. Westfall v. Kottke,
110 Wis. 2d 86,
328 N.W.2d 481 (1983).
895.045 Annotation
"Seat belt negligence" and "passive negligence" are distinguished. Jury instructions regarding seat belts are recommended. A method for apportioning damages in seat belt negligence cases is adopted. Foley v. City of West Allis,
113 Wis. 2d 475,
335 N.W.2d 824 (1983).
895.045 Annotation
A bus driver who told an 11-year-old that he could not ride the school bus the next day, but did not inform either the school or the child's parents, was properly found 93% liable for injuries sustained by the boy while riding his bicycle to school the next day. Toeller v. Mutual Service Casualty Insurance Co.
115 Wis. 2d 631,
340 N.W.2d 923 (Ct. App. 1983).
895.045 Annotation
When a decedent's negligence is greater than any individual tortfeasor's, this section bars recovery under s. 895.04 (7). Delvaux v. Vanden Langenberg,
130 Wis. 2d 464,
387 N.W.2d 751 (1986).
895.045 Annotation
A negligent tortfeasor has the right to indemnity from an intentional joint tortfeasor. A Pierringer release of the intentional tortfeasor absolved the negligent tortfeasor. Fleming v. Threshermen's Mutual Insurance Co.
131 Wis. 2d 123,
388 N.W.2d 908 (1986).
895.045 Annotation
Punitive damages may not be recovered when actual damages are unavailable due to this section. Tucker v. Marcus,
142 Wis. 2d 425,
418 N.W.2d 818 (1988).
895.045 Annotation
This section is inapplicable to the equitable resolution of a subrogation dispute. Ives v. Coopertools,
197 Wis. 2d 938,
541 N.W.2d 247 (Ct. App. 1995).
895.045 Annotation
Retroactive application of the 1995 amendment of this section was unconstitutional. Mattheis v. Positive Safety Manufacturing Co. 2001 WI 82,
244 Wis. 2d 720,
628 N.W.2d 842.
895.045 Annotation
The 1995 amendment of sub. (1) does not apply to strict product liability actions. Fuchsgruber v. Custom Accessories, Inc. 2001 WI App 81,
244 Wis. 2d 758,
628 N.W.2d 833.
895.045 Annotation
When the plaintiff's negligence was greater than any injurer's, neither the plaintiff nor the 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.
895.045 Annotation
Enforceable Exculpatory Agreements. Pendleton. Wis. Law. Nov. 1997.
895.045 Annotation
Wisconsin's Comparative Negligence Statute: Applying It to Products Liability Cases Brought under a Strict Liability Theory. Pless. Wis. Law. Aug. 1998.
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 a nondefamatory photograph of the plaintiff to a newspaper to accompany a defamatory article is not liable absent knowledge or control of the article. Westby v. Madison Newspapers, Inc.
81 Wis. 2d 1,
259 N.W.2d 691 (1977).
895.05 Annotation
A newscaster did not act with knowledge of falsity or with reckless disregard for the truth by broadcasting that the plaintiff had been charged with a crime when the newscaster was told by a deputy sheriff that charges would be filed. Prahl v. Brosamle,
98 Wis. 2d 130,
295 N.W.2d 768 (Ct. App. 1980).
895.05 Annotation
A contract printer had no reason to know of libel and was entitled to summary judgment. Maynard v. Port Publications, Inc.
98 Wis. 2d 555,
297 N.W.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 Wis. 2d 372,
302 N.W.2d 68 (Ct. App. 1981).
895.05 Annotation
The trial court properly dismissed a defamation claim based on a letter by a medical director charging that a foundation conducted a sham nonprofit operation since the director established the defense of truth. Fields Foundation, Ltd. v. Christensen,
103 Wis. 2d 465,
309 N.W.2d 125 (Ct. App. 1981).
895.05 Annotation
"Public figure" is defined. Constitutional protections of the news media and an individual defamer are discussed. Denny v. Mertz,
106 Wis. 2d 636,
318 N.W.2d 141 (1982).
895.05 Annotation
A former legislator who had gained notoriety within the district while in office and who was allegedly defamed in a radio broadcast within the district, was a "public figure" for purposes of a defamation action. Lewis v. Coursolle Broadcasting,
127 Wis. 2d 105,
377 N.W.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 Wis. 2d 429,
535 N.W.2d 11 (Ct. App. 1995).
895.05 Annotation
If a defamation plaintiff is a public figure, there must be proof of actual malice. The deliberate choice of one interpretation of a number of possible interpretations does not create a jury issue of actual malice. The selective destruction by a defendant of materials likely to be relevant to defamation litigation allows an inference that the materials would have provided evidence of actual malice, but the inference is of little weight when uncontroverted testimony makes the malice assertion a remote possibility. Torgerson v. Journal/Sentinel, Inc.
210 Wis. 2d 525,
563 N.W.2d 472 (1997).
