2009 Chapter 895

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 Recovery under s.895.04 (7) is barred by this section if a decedent's negligence was greater than any individual tortfeasor's. 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. Matthies v. Positive Safety Manufacturing Co. 2001 WI 82, 244 Wis. 2d 720, 628 N.W.2d 842, 99-0431.

895.045 Annotation The 1995 amendment of sub. (1) does not apply to strict product liability actions. Fuchsgruber v. Custom Accessories, Inc. 2001 WI 81, 244 Wis. 2d 758, 628 N.W.2d 833, 98-2419.

895.045 Annotation Only a tortfeasor found to be 51% or more causally negligent may be jointly and severally liable for a plaintiff's total damages. That a plaintiff has no negligence does not alter that rule. Thomas v. Bickler, 2002 WI App 268, 258 Wis. 2d 304, 654 N.W.2d 248, 01-2006.

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 The Due Process Clause of the 14th Amendment prohibits a state from imposing a grossly excessive punishment on a tortfeasor. The degree of reprehensibility of the conduct, the disparity between the harm or potential harm suffered by the plaintiff and the punitive damage award, and the difference between the remedy and other civil penalties imposed in comparable cases are factors to be considered. The most important factor is the degree of reprehensibility. Strenke v. Hogner, 2005 WI App 194, 287 Wis. 2d 135, 704 N.W.2d 309, 03-2527.

895.045 Annotation When a trial court finds that a small claims plaintiff's actual damages exceed the statutory award limit of $5,000, the court should apply any reduction for comparative negligence to the damages found before applying the statutory limit. Bryhan v. Pink, 2006 WI App 110, 294 Wis. 2d 347, 718 N.W.2d 112, 05-1030.

895.045 Annotation Sub. (2) is a codification of the common-law rule on concerted-action liability discussed and not a new cause of action. Concerted-action liability attaches when 2 or more persons commit a tortious act in concert. Even if an agreement exists, if that agreement does not directly relate to the tortious conduct that caused the injury, the agreement is insufficient to satisfy the agreement required for concerted action. A plan among 3 people to purchase alcohol for an underage drinker who later caused injury driving while intoxicated did not constitute a concerted action when the common plan to purchase alcohol was not also a common scheme or plan to engage in the act of driving that caused the injury. Richards v. Badger Mutual Insurance, 2006 WI App 255, 297 Wis. 2d 699, 727 N.W.2d 69, 05-2796.

895.045 Annotation Sub. (2) applies only after a judge or jury has determined, under applicable substantive law, that more than one tortfeasor is liable in some measure to the plaintiff. Sub. (2) plays no role in determining whether a given defendant may be held liable to the plaintiff. Danks v. Stock Building Supply, Inc. 2007 WI App 8, 298 Wis. 2d 348, 727 N.W.2d 846, 05-2679.

895.045 Annotation Sub. (2) is the codification of the common law concerted action theory of liability. There are 3 factual predicates necessary to proving concerted action: 1) there must be an explicit or tacit agreement among the parties to act in accordance with a mutually agreed upon scheme or plan; parallel action, without more, is insufficient to show a common scheme or plan; 2) there must be mutual acts committed in furtherance of that common scheme or plan that are tortious acts; and 3) the tortious acts that are undertaken to accomplish the common scheme or plan must be the acts that result in damages. Richards v. Badger Mutual Insurance, 2008 WI 52, 309 Wis. 2d 541, 749 N.W.2d 581, 05-2796.

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.

895.049 895.049  Recovery by a person who fails to use protective headgear while operating certain motor vehicles. Notwithstanding s. 895.045, failure by a person who operates or is a passenger on a motorcycle, as defined in s. 340.01 (32), an all-terrain vehicle, as defined in s. 340.01 (2g), or a snowmobile, as defined in s. 340.01 (58a), on or off a highway, to use protective headgear shall not reduce recovery for injuries or damages by the person or the person's legal representative in any civil action. This section does not apply to any person required to wear protective headgear under s. 23.33 (3g) or 347.485 (1).

895.049 History History: 2003 a. 148.

895.049 Annotation When this section applies to prohibit a reduction of damages, it necessarily also precludes a person's failure to wear a helmet from being considered a form of negligence. Hardy v. Hoefferle, 2007 WI App 264, 306 Wis. 2d 513, 743 N.W.2d 843, 06-2861

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 524, 563 N.W.2d 472 (1997), 95-1098.

895.05 Annotation For purposes of libel law, a "public figure" who must prove malice includes a person who by being drawn into or interjecting himself or herself into a public controversy becomes a public figure for a limited purpose because of involvement in the particular controversy. "Public figure" status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Bay, Inc. 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999), 98-2660.

895.05 Annotation A "public dispute" is not simply a matter of interest to the public. It must be a real dispute, the outcome of which affects the general public in an appreciable way. Essentially private concerns do not become public controversies because they attract attention; the dispute's ramifications must be felt by persons who are not direct participants. Maguire v. Journal Sentinel, Inc. 2000 WI App 4, 232 Wis. 2d 236, 605 N.W.2d 881, 97-3675.

895.05 Annotation In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, 04-0377.

895.05 Annotation The sub. (2) notice requirement applies to only libel in print. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.

895.05 Annotation Actual malice requires that an allegedly defamatory statement be made with knowledge that it was false or with reckless disregard of whether it was false or not. Actual malice does not mean bad intent, ill-will, or animus. Repeated publication of a statement after being informed that the statement was false does not constitute actual malice so long as the speaker believes it to be true. Actual malice cannot be inferred from the choice of one rational interpretation of a speech over another. Donohoo v. Action Wisconsin, Inc. 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739, 06-0396.

895.05 Annotation There are two kinds of public figures: public figures for all purposes and public figures for a limited purpose. Like public officials, public figures for all purposes must prove actual malice in all circumstances. Limited purpose public figures, on the other hand, are otherwise private individuals who have a role in a specific public controversy. Limited purpose public figures are required to prove actual malice only when their role in the controversy is "more than trivial or tangential" and the defamation is germane to their participation in the controversy. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

895.05 Annotation The plaintiff was a public figure for all purposes when he was involved in highly controversial and newsworthy activities while in public office; the publicity and controversy surrounding these events continued well after the term of office ended; the plaintiff remained in the news after leaving office as a result of new developments in the various inquiries into his official conduct; and he had a connection with another public official in the news. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

895.05 Annotation In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice. However, this rule is not absolute. In this case, because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

895.05 Annotation Sub. (2) provides that an opportunity to correct libelous matter "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 optional provision: "The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty," does not nullify the requirement that the notice contain a statement of what are claimed to be the true facts. Once a claimant has been found to not meet the notice requirements, the action cannot be revived by again attempting to comply with the notice provisions. DeBraska v. Quad Graphics, Inc. 2009 WI App 23, 316 Wis. 2d 386, 763 N.W.2d 219, 07-2931.

895.05 Annotation Publishers' privileges and liabilities regarding libel are discussed. Gertz v. Robert Welch, Inc. 418 U.S. 323.

895.05 Annotation A public figure who sues media companies for libel may inquire into the editorial processes of those responsible when proof of "actual malice" is required for recovery. Herbert v. Lando, 441 U.S. 153 (1979).

895.05 Annotation The "public figure" principle in libel cases is discussed. Wolston v. Reader's Digest Assn., Inc. 443 U.S. 157 (1979).

895.05 Annotation If wire service accounts of a judge's remarks are substantially accurate, a defamation suit by the judge is barred under sub. (1). Simonson v. United Press Intern., Inc. 500 F. Supp 1261 (1980).

895.05 Annotation A Misplaced Focus: Libel Law and Wisconsin's Distinction Between Media and Nonmedia Defendants. Maguire. 2004 WLR 191.

895.05 Annotation Defamation law of Wisconsin. Brody, 65 MLR 505 (1982).

895.05 Annotation The "public interest or concern" test: Have we resurrected a standard that should have remained in the graveyard? 70 MLR 647 (1987).

895.052 895.052  Defamation by radio and television. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable in damages for any defamatory statement published or uttered in, or as a part of, a visual or sound broadcast by a candidate for political office in those instances in which, under the acts of congress or the rules and regulations of the federal communications commission, the broadcasting station or network is prohibited from censoring the script of the broadcast.

895.055 895.055  Gaming contracts void.

895.055(1) (1) All promises, agreements, notes, bills, bonds, or other contracts, mortgages, conveyances or other securities, where the whole or any part of the consideration of the promise, agreement, note, bill, bond, mortgage, conveyance or other security shall be for money or other valuable thing whatsoever won or lost, laid or staked, or betted at or upon any game of any kind or under any name whatsoever, or by any means, or upon any race, fight, sport or pastime, or any wager, or for the repayment of money or other thing of value, lent or advanced at the time and for the purpose, of any game, play, bet or wager, or of being laid, staked, betted or wagered thereon shall be void.

895.055(2) (2) This section does not apply to contracts of insurance made in good faith for the security or indemnity of the party insured.

895.055(3) (3) This section does not apply to any promise, agreement, note, bill, bond, mortgage, conveyance or other security that is permitted under chs. 562 to 569 or under state or federal laws relating to the conduct of gaming on Indian lands.

895.055 History History: 1993 a. 174; 1995 a. 225; 1997 a. 27.

895.055 Annotation A Puerto Rican judgment based on a gambling debt was entitled to full faith and credit in Wisconsin. Conquistador Hotel Corp. v. Fortino, 99 Wis. 2d 16, 298 N.W.2d 236 (Ct. App. 1980).

895.056 895.056  Recovery of money wagered.

895.056(1) (1) In this section:

895.056(1)(a) (a) "Property" means any money, property or thing in action.

895.056(1)(b) (b) "Wagerer" means any person who, by playing at any game or by betting or wagering on any game, election, horse or other race, ball playing, cock fighting, fight, sport or pastime or on the issue or event thereof, or on any future contingent or unknown occurrence or result in respect to anything whatever, shall have put up, staked or deposited any property with any stakeholder or 3rd person, or shall have lost and delivered any property to any winner thereof.

895.056(2) (2) 

895.056(2)(a) (a) A wagerer may, within 3 months after putting up, staking or depositing property with a stakeholder or 3rd person, sue for and recover the property from the stakeholder or 3rd person whether the property has been lost or won or whether it has been delivered over by the stakeholder or 3rd person to the winner.

895.056(2)(b) (b) A wagerer may, within 6 months after any delivery by the wagerer or the stakeholder of the property put up, staked or deposited, sue for and recover the property from the winner thereof if the property has been delivered over to the winner.

895.056(3) (3) If the wagerer does not sue for and recover the property, which was put up, staked or deposited, within the time specified under sub. (1), any other person may, in the person's behalf and the person's name, sue for and recover the property for the use and benefit of the wagerer's family or heirs, in case of the wagerer's death. The suit may be brought against and property recovered from any of the following:

895.056(3)(a) (a) The stakeholder or a 3rd person if the property is still held by the stakeholder or 3rd person, within 6 months after the putting up, staking or depositing of the property.

895.056(3)(b) (b) The winner of the property, within one year from the delivery of the property to the winner.

895.056(4) (4) This section does not apply to any property that is permitted to be played, bet or wagered under chs. 562 to 569 or under state or federal laws relating to the conduct of gaming on Indian lands.

895.056 History History: 1993 a. 174, 486; 1995 a. 225; 1997 a. 27, 35.

895.057 895.057  Action against judicial officer for loss caused by misconduct. Any judicial officer who causes to be brought in a court over which the judicial officer presides any action or proceeding upon a claim placed in the judicial officer's hands as agent or attorney for collection shall be liable in a civil action to the person against whom such action or proceeding was brought for the full amount of damages and costs recovered on such claim.

895.057 History History: 1993 a. 486.

895.06 895.06  Recovery of divisible personalty. When personal property is divisible and owned by tenants in common and one tenant in common shall claim and hold possession of more than the tenant's share or proportion thereof his or her cotenant, after making a demand in writing, may sue for and recover the cotenant's share or the value thereof. The court may direct the jury, if necessary, in any such action to find what specific articles or what share or interest belongs to the respective parties, and the court shall enter up judgment in form for one or both of the parties against the other, according to the verdict.

895.06 History History: 1993 a. 486.

895.065 895.065  Radioactive waste emergencies.

895.065(1) (1)  Definitions. In this section:

895.065(1)(a) (a) "Association" means a relationship in which one person controls, is controlled by or is under common control with another person.

895.065(1)(b) (b) "Company" means any partnership, joint-stock company, business trust or organized group of persons, whether incorporated or not, and any person acting as a receiver, trustee or other liquidator of a partnership, joint-stock company, business trust or organized group of persons. "Company" does not include a state or local governmental body.

895.065(1)(c) (c) "Control" means to possess, directly or indirectly, the power to direct or cause the direction of the management and policies of a company, whether that power is exercised through one or more intermediary companies, or alone, or in conjunction with, or by an agreement with, any other company, and whether that power is established through a majority or minority ownership or voting of securities, common directors, officers, stockholders, voting trusts, holding trusts, affiliated companies, contract or by any other direct or indirect means. "Control" includes owning, holding or controlling, directly or indirectly, at least 5% of the voting power in the election of directors of a company. "Control" has the same meaning as the terms "controlled by" and "under common control with".