895.447
895.447
Certain agreements to limit or eliminate tort liability void. 895.447(1)(1) Any provision to limit or eliminate tort liability as a part of or in connection with any contract, covenant or agreement relating to the construction, alteration, repair or maintenance of a building, structure, or other work related to construction, including any moving, demolition or excavation, is against public policy and void.
895.447(2)
(2) This section does not apply to any insurance contract or worker's compensation plan.
895.447(3)
(3) This section shall not apply to any provision of any contract, covenant or agreement entered into prior to July 1, 1978.
895.447 History
History: 1977 c. 441; Stats. 1977 s. 895.47;
1977 c. 447; Stats. 1977 s. 895.49;
2005 a. 155 s.
49; Stats. 2005 s. 895.447.
895.447 Annotation
This section did not void an indemnity clause in a contract. Gerdmann v. U.S. Fire Insurance Co.
119 Wis. 2d 367,
350 N.W.2d 730 (Ct. App. 1984).
895.448
895.448
Safety devices on farm equipment, ordinary negligence. 895.448(1)(a)
(a) "Farm equipment" means a tractor or other machine used in the business of farming.
895.448(1)(b)
(b) "Safety device" means a guard, shield or other part that has the purpose of preventing injury to humans.
895.448(2)
(2) If a person in the business of selling or repairing farm equipment fabricates a safety device and installs the safety device on used farm equipment, after determining either that the farm equipment was not originally equipped with such a safety device or that a replacement is not available from the original manufacturer or from a manufacturer of replacements, and notifies the owner or purchaser of the farm equipment that the person fabricated the safety device, the person is not liable for claims founded in tort for damages arising from the safety device unless the claimant proves, by a preponderance of the evidence, that a cause of the claimant's harm was the failure to use reasonable care with respect to the design, fabrication, inspection, condition or installation of, or warnings relating to, the safety device.
895.448 History
History: 1993 a. 455;
2005 a. 155 s.
50; Stats. 2005 s. 895.448.
895.45
895.45
Service representatives for adult abusive conduct complainants. 895.45(1)(a)
(a) "Abusive conduct" means domestic abuse, as defined under
s. 49.165 (1) (a),
813.12 (1) (am), or
968.075 (1) (a), harassment, as defined under
s. 813.125 (1), sexual exploitation by a therapist under
s. 940.22, sexual assault under
s. 940.225, child abuse, as defined under
s. 813.122 (1) (a), or child abuse under
ss. 948.02 to
948.11.
895.45(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.
895.45(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.
895.45(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. 767.41 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.
895.45(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.
895.455
895.455
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.
895.455 History
History: 1997 a. 133;
2005 a. 155 s.
66; Stats. 2005 s. 895.455.
895.457
895.457
Limiting felon's right to damages. 895.457(1)(a)
(a) "Crime" means a crime under the laws of this state or under federal law.
895.457(1)(b)
(b) "Damages" means damages for an injury to real or personal property, for death, or for personal injury.
895.457(1)(c)
(c) "Felony" means a felony under the laws of this state or under federal law.
895.457(1)(d)
(d) "Victim" means a person against whom an act constituting a felony was committed.
895.457(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:
895.457(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.
895.457(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.
895.457(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.
895.457(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.
895.457(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).
895.457 History
History: 2003 a. 87;
2005 a. 155 s.
68; Stats. 2005 s. 895.457.
895.46
895.46
State and political subdivisions thereof to pay judgments taken against officers. 895.46(1)(a)(a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be covered by this section while acting within the scope of their agency. Regardless of the results of the litigation the governmental unit, if it does not provide legal counsel to the defendant officer or employee, shall pay reasonable attorney fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employee did not act within the scope of employment. The duty of a governmental unit to provide or pay for the provision of legal representation does not apply to the extent that applicable insurance provides that representation. If the employing state agency or the attorney general denies that the state officer, employee or agent was doing any act growing out of or committed in the course of the discharge of his or her duties, the attorney general may appear on behalf of the state to contest that issue without waiving the state's sovereign immunity to suit. Failure by the officer or employee to give notice to his or her department head of an action or special proceeding commenced against the defendant officer or employee as soon as reasonably possible is a bar to recovery by the officer or employee from the state or political subdivision of reasonable attorney fees and costs of defending the action. The attorney fees and expenses shall not be recoverable if the state or political subdivision offers the officer or employee legal counsel and the offer is refused by the defendant officer or employee. If the officer, employee or agent of the state refuses to cooperate in the defense of the litigation, the officer, employee or agent is not eligible for any indemnification or for the provision of legal counsel by the governmental unit under this section.
895.46(1)(am)
(am) If a court determines that costs are awardable to an employee or official who has been provided representation by a governmental unit under
par. (a), the court shall award those costs to the unit of government that provided the representation.
895.46(1)(b)
(b) Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:
895.46(1)(b)1.
1. Satisfactorily completed or are currently enrolled in the preparatory program of law enforcement training under
s. 165.85 (4) (b) 1. and, if applicable, the recertification programs under
s. 165.85 (4) (bn) 1., or have provided evidence of equivalent law enforcement training and experience as determined by the law enforcement standards board; or
895.46(1)(c)
(c) This subsection does not apply to any action or special proceeding brought by a county against its county sheriff if the action or proceeding is determined in favor of the county.
895.46(1)(d)
(d) On and after March 1, 1983, all persons employed as deputy sheriffs, as defined in
s. 40.02 (48) (b) 3., are covered by this subsection. The county board shall adopt written policies for payments under this subsection on behalf of any other person, provided that person has satisfied the minimum standards of the law enforcement standards board, who serves at the discretion of the sheriff as a law enforcement officer as defined in
s. 165.85 (2) (c), and the county may make the payments upon approval by the county board.
895.46(1)(e)
(e) Any nonprofit corporation operating a museum under a lease agreement with the state historical society, and all officers, directors, employees and agents of such a corporation, and any local emergency planning committee appointed by a county board under
s. 59.54 (8) (a) and all members of such a committee, are state officers, employees or agents for the purposes of this subsection.
895.46(2)
(2) Any town officer held personally liable for reimbursement of any public funds paid out in good faith pursuant to the directions of electors at any annual or special town meeting shall be reimbursed by the town for the amount of the judgment for damages and costs entered against the town officer.
895.46(3)
(3) The protection afforded by this section shall apply to any state officer, employee or agent while operating a state-owned vehicle for personal use in accordance with
s. 20.916 (7).
895.46(4)
(4) The protection afforded by this section applies to members of the board of governors created under
s. 619.04 (3), members of a committee or subcommittee of that board of governors, members of the injured patients and families compensation fund peer review council created under
s. 655.275 (2), and persons consulting with that council under
s. 655.275 (5) (b), with respect to judgments, attorney fees, and costs awarded before, on, or after April 25, 1990.
895.46(5)
(5) The protection afforded by this section applies to any of the following:
895.46(5)(a)
(a) A volunteer health care provider who provides services under
s. 146.89, for the provision of those services.
895.46(5)(am)
(am) A behavioral health provider, health care provider, pupil services provider, or substance abuse prevention provider who provides services under
s. 250.042 (4) and a health care facility on whose behalf services are provided under
s. 250.042 (4).
895.46(6)
(6) The protection afforded by this section applies to any criminal action under
s. 291.97 (2) or
293.87 (2) or under
7 USC 136L (b),
15 USC 2616 (b),
33 USC 1319 (c),
42 USC 2284,
6928 (d) and (e),
6973 (b),
6992 (b) and (c),
7413 (c),
9603 (b),
9606 (b) and
11045 (b) or
49 USC 5124 that is commenced against a state officer or state employee who is proceeded against in his or her official capacity or as an individual because of acts committed in the storage, transportation, treatment or disposal of hazardous substances, as defined in
s. 289.01 (11), if that officer or employee is found to be acting within the scope of his or her employment and if the attorney general determines that the state officer or state employee acted in good faith. Regardless of the determination made by the attorney general, the protection afforded by this section applies if the state officer or agent is not found guilty of the criminal action commenced under this subsection. This protection includes the payment of reasonable attorney fees in defending the action and costs or fines arising out of the action.
895.46(7)
(7) The protection afforded by this section does not apply to any law enforcement officer of another state acting in Wisconsin under an agreement authorized under
s. 175.46.
895.46(8)
(8) The protection afforded by this section applies to any owner of land within a drainage district established under
ch. 88 who undertakes work on a drain if the work is approved by the drainage board.
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;
2003 a. 111;
2005 a. 96;
2007 a. 79,
130.
895.46 Cross-reference
Cross-reference: See s.
775.06 for special procedure applying to state law enforcement officers.
895.46 Annotation
Highway commission [now transportation dept.] 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 (1973).
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 (1978).
895.46 Annotation
Mandatory payment under sub. (1) did not apply to an official who was sued for illegally retaining his salary due to an alleged failure to comply with the statutory requirements for a bond and oath of office. The official was not acting in his official capacity when filing the bond or taking the oath or in defending a related suit. Thuermer v. Village of Mishicot,
86 Wis. 2d 374,
272 N.W.2d 409 (Ct. App. 1978).
895.46 Annotation
An insurer of public employees had no right of recovery under s. 270.58 (1) [now s. 895.46 (1)] Horace Mann Insurance Co. v. Wauwatosa Board of Education,
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 alderpersons 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 397,
571 N.W.2d 189 (Ct. App. 1997),
97-1469.
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 that 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 the 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
Members of the Investment Board, Employee Trust Fund Board, Teachers Retirement Board, Wisconsin Retirement Board, Group Insurance Board, and Deferred Compensation Board are subject to the limitations on damages under s. 893.82 and are entitled to the state's indemnification for liability under this section.
OAG 2-06.
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 Commission.
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 (1973).
895.46 Annotation
The purpose of this section is not to transform any suit against a state employee into a suit against the 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 when the judgment held 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 [now s. 66.0313], 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.
895.472
895.472
Indemnification of a financial institution. A financial institution, as defined in
s. 943.80 (2), that compensates a customer for a pecuniary loss resulting from a financial crime, as defined in
s. 943.80 (1), or assumes the loss, may bring a civil action against the person who committed the crime to recover the amount of the loss, any other damages incurred by the financial institution as a result of the crime, and the costs incurred to bring the action, including attorney's fees.
895.472 History
History: 2005 a. 212 s.
2;
2007 a. 97 s.
239.
