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.
895.78
895.78
Limiting felon's right to damages. 895.78(1)(a)
(a) "Crime" means a crime under the laws of this state or under federal law.
895.78(1)(b)
(b) "Damages" means damages for an injury to real or personal property, for death, or for personal injury.
895.78(1)(c)
(c) "Felony" means a felony under the laws of this state or under federal law.
895.78(1)(d)
(d) "Victim" means a person against whom an act constituting a felony was committed.
895.78(2)
(2) No person may recover damages from any of the following persons for injury or death incurred while committing, or as a result of committing, an act that constituted a felony, if the person was convicted of a felony for that act:
895.78(2)(b)
(b) An individual other than a victim of that felony who assisted or attempted to assist in the prevention of the act, who assisted or attempted to assist in the protection of the victim, or who assisted or attempted to assist in the apprehension or detention of the person committing the act unless the individual who assisted or attempted to assist is convicted of a crime as a result of his or her assistance or attempted assistance.
895.78(3)
(3) This section does not prohibit a person from recovering damages for death or personal injury resulting from a device used to provide security that is intended or likely to cause great bodily harm, as defined in
s. 939.22 (14), or death.
895.78(4)(a)(a) Any applicable statute of limitations for an action to recover damages against a person described under
sub. (2) (a) or
(b) for injury or death incurred while committing, or as a result of committing, an act that constituted a felony is tolled during the period beginning with the commencement of a criminal proceeding charging the person who committed the act with a felony for that act and ending with the final disposition, as defined in
s. 893.13 (1), of the criminal proceeding.
895.78(4)(b)
(b) Any applicable statute of limitations for an action to recover damages from an individual described under
sub. (2) (b) for injury or death incurred while committing, or as a result of committing, an act that constituted a felony is tolled during the period beginning with the commencement of a criminal proceeding charging the individual described under
sub. (2) (b) with a crime as a result of his or her assistance or attempt to assist and ending with the final disposition, as defined in
s. 893.13 (1), of the criminal proceeding. This paragraph does not apply if a criminal proceeding described in
par. (a) does not result in a felony conviction and there is no other criminal proceeding described under
par. (a) pending.
895.78(5)
(5) A court may stay a civil action described under
sub. (2) until the final disposition of a criminal proceeding described under
sub. (4).
895.78 History
History: 2003 a. 87.
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,
943.61,
943.74, or
943.76, or by reason of intentional conduct that occurs on or after April 28, 1998, and that is prohibited under
s. 943.201 or
943.203, or by reason of intentional conduct that occurs on or after July 1, 2004, and that is prohibited under
s. 943.011,
943.012, or
943.017, 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 a violation of
s. 943.01,
943.011,
943.012,
943.017,
943.20,
943.201,
943.203,
943.21,
943.24,
943.26,
943.34,
943.395,
943.41,
943.50,
943.61,
943.74, or
943.76 by a preponderance of the credible evidence. A conviction under
s. 943.01,
943.011,
943.012,
943.017,
943.20,
943.201,
943.203,
943.21,
943.24,
943.26,
943.34,
943.395,
943.41,
943.50,
943.61,
943.74, or
943.76 is not required to bring an action, obtain a judgment, or collect on that judgment under this section.
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)(a)
(a) Actual damages, including the retail or replacement value of damaged, used, or lost property, whichever is greater, for a violation of
s. 943.01,
943.011,
943.012,
943.017,
943.20,
943.201,
943.203,
943.21,
943.24,
943.26,
943.34,
943.395,
943.41,
943.50,
943.61,
943.74, or
943.76.
895.80(3)(b)
(b) All costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employee or agent of the victim.
895.80(3)(c)
(c) Exemplary damages of not more than 3 times the amount awarded under
par. (a). No additional proof is required under this section for an award of exemplary damages under this paragraph.
895.80(3m)(a)(a) In this subsection, "plant" includes the material taken, extracted, or harvested from a plant, or a seed or other plant material that is being used or that will be used to grow or develop a plant.
895.80(3m)(b)
(b) If the violation of
s. 943.01 (1) involves the circumstances under
s. 943.01 (2d), the court may award a prevailing plaintiff the reasonable attorney fees incurred in litigating the action and, when determining the damages recoverable under
sub. (3), shall include the market value of the plant before the damage or destruction, and the costs of production, research, testing, replacement, and plant development directly related to the plant that has been damaged or destroyed.
895.80(4)
(4) Any recovery under this section shall be reduced by the amount recovered as restitution under
ss. 800.093 and
973.20 and
ch. 938.
895.80(5)
(5) No person may bring a cause of action under both this section and
s. 95.195,
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. If the plaintiff has a cause of action under both this section and
s. 95.195, the plaintiff must bring the action under
s. 95.195.
895.80(6)
(6) A person is not criminally liable under
s. 943.30 for any action brought in good faith under this section.
895.80 Annotation
A trial court cannot, contrary to sub. (3) (b), award attorney fees that exceed what was actually "incurred." Stathus v. Horst, 2003 WI App 28,
260 Wis. 2d 166,
659 N.W.2d 165,
02-0543.
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 are 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: 1) the grievousness of the wrongdoer's acts; 2) the degree of malicious intent; 3) the potential damage that might have been caused by the acts; and 4) 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: 1) the reprehensibility of the conduct; 2) the disparity between the harm suffered and the punitive damages awarded; and 3) 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
Sub. (3) requires either an intent by a defendant to cause injury to the plaintiffs or knowledge that the defendant's conduct was practically certain to cause the accident or injury to the plaintiffs. Wischer v. Mitsubishi Heavy Industries, 2003 WI App 202,
267 Wis. 2d 638,
673 N.W.2d 303,
01-0724.
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).
895.85 Annotation
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
