895.442(2)(b)2.
2. Exercise ordinary care to prevent similar incidents from occurring.
895.442(2)(c)
(c) 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.
895.442(2)(d)
(d) 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 any of the following:
895.442(2)(d)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.
895.442(2)(d)2.
2. A plaintiff in an action under this section from unreasonably long, repetitive, or burdensome physical or mental examinations.
895.442(2)(d)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.
895.442(3)
(3) Consent. Consent is not an issue in an action under this section.
895.442(4)
(4) Calculation of statute of limitations. An action under this section is subject to
s. 893.587.
895.442(5)
(5) Silence agreements. Any contract or agreement concerning the settlement of any claim under this section that limits or eliminates the right of the injured person to disclose the sexual contact described under
sub. (2) to another member of the religious organization to which the member of the clergy under
sub. (2) belongs, to a therapist, as defined in
s. 895.441 (1) (e), to a person listed under
s. 48.981 (2) (a), or to a district attorney, is void.
895.442 History
History: 2003 a. 279;
2005 a. 155 s.
63; Stats. 2005 s. 895.442.
895.443
895.443
Physical injury, emotional distress, loss or damage suffered by members of certain groups; action for. 895.443(1)(1) If a person 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 that is prohibited under
s. 943.012 and that causes damage to any property specified in
s. 943.012 (1) to
(4) or by reason of conduct that is grounds for a penalty increase under
s. 939.645 (1), the person has a civil cause of action against the person who caused the physical injury, emotional distress, damage or loss.
895.443(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.
895.443(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.
895.443(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.
895.443(5)
(5) This section does not limit the right of a person to recover from any parent or parents under
s. 895.035.
895.443 History
History: 1987 a. 348;
2003 a. 243;
2005 a. 155 s.
65; Stats. 2005 s. 895.443.
895.444
895.444
Injury caused by criminal gang activity; action for. 895.444(1)(c)
(c) "Political subdivision" means a city, village, town or county.
895.444(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.
895.444(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.
895.444(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.
895.444(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.
895.444(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.
895.444(4)
(4) Injunctive relief, damages, costs and fees. 895.444(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.
895.444(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.
895.444(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.
895.444(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.
895.444(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.
895.444 History
History: 1993 a. 98;
2005 a. 155 s.
67; Stats. 2005 s. 895.444.
895.445
895.445
Damage to certain machines; action for. 895.445(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.
895.445(2)
(2) The owner has the burden of proving his or her case under
sub. (1) by a preponderance of the credible evidence.
895.445(3)
(3) If the owner prevails in a civil action under
sub. (1), he or she may recover all of the following:
895.445(3)(b)
(b) Costs, including all reasonable attorney fees and other costs of the investigation and litigation that were reasonably incurred.
895.445(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.
895.445 History
History: 1995 a. 133;
2005 a. 155 s.
69; Stats. 2005 s. 895.445.
895.446
895.446
Property damage or loss caused by crime; action for. 895.446(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.
895.446(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.
895.446(3)
(3) If the plaintiff prevails in a civil action under
sub. (1), he or she may recover all of the following:
895.446(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.
895.446(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.
895.446(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.
895.446(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.
895.446(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.
895.446(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 for the same act or as recompense under
s. 969.13 (5) (a) for the same act.
895.446(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.
895.446(6)
(6) A person is not criminally liable under
s. 943.30 for any action brought in good faith under this section.
895.446 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.
895.446 Annotation
Under Wisconsin law the economic loss doctrine does not bar recovery under s. 100.18, but it does bar recovery under s. 895.80, at least under the facts of this case. Dow v. Poltzer,
364 F. Supp. 2d 931 (2005).
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:
