895.037(3)(b)
(b) If a person who has been awarded damages under
par. (a) proves by clear and convincing evidence that the violation of
s. 48.375 (4) was willful, wanton or reckless, that person shall also be entitled to punitive damages.
895.037(3)(c)
(c) A conviction under
sub. (2) (a) is not a condition precedent to bringing an action, obtaining a judgment or collecting that judgment under this subsection.
895.037(3)(d)
(d) A person who recovers damages under
par. (a) or
(b) may also recover reasonable attorney fees incurred in connection with the action, notwithstanding
s. 814.04 (1).
895.037(3)(e)
(e) A contract is not a defense to an action under this subsection.
895.037(3)(f)
(f) Nothing in this subsection limits the common law rights of parents, guardians, legal custodians and minors.
895.037(4)
(4) Confidentiality. The identity of a minor who is the subject of an action under this section and the identity of the minor's parents, guardian and legal custodian shall be kept confidential and may not be disclosed, except to the court, the parties, their counsel, witnesses and other persons approved by the court. All papers filed in and all records of a court relating to an action under this section shall identify the minor as "Jane Doe" and shall identify her parents, guardian and legal custodian by initials only. All hearings relating to an action under this section shall be held in chambers unless the minor demands a hearing in open court and her parents, guardian or legal custodian do not object. If a public hearing is not held, only the parties, their counsel, witnesses and other persons requested by the court, or requested by a party and approved by the court, may be present.
895.037 History
History: 1991 a. 263.
895.037 Annotation
The essential holding of
Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey,
505 U.S. 833,
120 L. Ed. 2d 674 (1992).
895.038
895.038
Partial-birth abortions; liability. 895.038(2)(a)(a) Except as provided in
par. (b), any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion:
895.038(2)(a)1.
1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.
895.038(2)(a)2.
2. The father of the child aborted by the partial-birth abortion.
895.038(2)(b)
(b) A person specified in
par. (a) 1. or
2. does not have a claim under
par. (a) if any of the following apply:
895.038(2)(b)1.
1. The person consented to performance of the partial-birth abortion.
895.038(3)
(3) The relief available under
sub. (2) shall include all of the following:
895.038(3)(a)
(a) If the abortion was performed in violation of
s. 940.16, damages arising out of the performance of the partial-birth abortion, including damages for personal injury and emotional and psychological distress.
895.038(3)(b)
(b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.
895.038(4)
(4) Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion.
895.038 History
History: 1997 a. 219;
2005 a. 277.
895.038 Annotation
A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart,
530 U.S. 914,
147 L. Ed. 2d 743 (2000).
895.038 Annotation
Enforcement of s. 940.16 is enjoined under
Carhart. Hope Clinic v. Ryan,
249 F.3d 603 (2001).
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 or domestic partner under
ch.770 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 or surviving domestic partner, 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 or domestic partner of the deceased; if no spouse or domestic partner 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 or a nonresident alien domestic partner under
ch. 770 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 or surviving domestic partner'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, domestic partner under
ch. 770, or relatives as provided in this section, such spouse, domestic partner, 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, domestic partner, 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
Recovery under sub. (7) is barred by s. 895.045 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).
895.04 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 the 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 App 69,
233 Wis. 2d 523,
608 N.W.2d 371,
99-2049.
895.04 Annotation
The rule that one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole is applicable in wrongful death actions. Wrongful death plaintiffs are entitled to be made whole for their losses, but not more than whole. To the extent that wrongful death plaintiffs receive a portion of damages for expenses they have not incurred after having been made whole, they have been unjustly enriched. Petta v. ABC Insurance Co.
2005 WI 18,
278 Wis. 2d 251,
692 N.W.2d 639,
03-0610.
895.04 Annotation
Sub. (4) does not: 1) nullify the state constitutional right to have a jury assess damages under art. I, s. 5; 2) violate separation of powers principles by blurring the boundaries between judicial and legislative branches; 3) violate constitutional equal protection guarantees; and 4) does not violate substantive due process. Maurin v. Hall,
2004 WI 100,
274 Wis. 2d 28,
682 N.W.2d 866,
00-0072. Partially overruled on other grounds. Bartholomew v. Wisconsin Patients Compensation Fund,
2006 WI 91,
293 Wis. 2d 38,
717 N.W.2d 26,
04-2592.
895.04 Annotation
The jury award of noneconomic damages for pre-death claims, namely the claim for the decedent's pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, s. 893.55, and not the wrongful death statute, this section. Bartholomew v. Wisconsin Patients Compensation Fund,
2006 WI 91,
293 Wis. 2d 38,
717 N.W.2d 216,
04-2592.
895.04 Annotation
Parents of minor children have separate claims for pre-death and post-death loss of society and companionship, and damages are not capped by the wrongful-death limit. Hegarty v. Beauchaine,
2006 WI App 248,
297 Wis. 2d 70,
727 N.W.2d 857,
04-3252.
895.04 Annotation
Under s. 895.01 (1) (o) and sub. (2), a wrongful death claim does not survive the death of the claimant. In a non-medical malpractice wrongful death case, under sub. (2), a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under s. 655.007 are not subject to a statutory hierarchy like claimants under sub. (2). However, in a medical malpractice wrongful death case, adult children of the deceased are not listed as eligible claimants and are therefore not eligible because of the exclusivity of s. 655.007, as interpreted in
Czapinski. Lornson v. Siddiqui,
2007 WI 92,
302 Wis. 2d 519,
735 N.W.2d 55,
05-2315.
895.04 Annotation
Because the legislature modified "children" with "minor" in a different subsection of this section of the statute, the only reasonable interpretation of the legislature's unmodified use of the word "children" in sub. (4) is that the term includes both adult and minor children. Pierce v. American Family Mutual Insurance Company,
2007 WI App 152,
303 Wis. 2d 726,
736 N.W.2d 247,
06-1773.
895.04 Annotation
This section does not provide for the recovery of lost inheritance by a party on behalf of a class of heirs. Despite the use of the plural "lineal heirs," the statute clearly contemplates that each relative will, in turn, have the right to bring an action for wrongful death. The use of the plural "heirs" encompasses exactly the situation when two or more heirs in the same tier of succession in the statutory hierarchy bring a wrongful death action together. Estate of Lamers v. American Hardware Mutual Insurance Co.
2008 WI App 165,
314 Wis. 2d 731,
761 N.W.2d 38,
07-2793.
895.04 Annotation
A surviving spouse cannot disclaim a wrongful death claim under s. 854.13 so as to pass ownership of that claim to the deceased's lineal heirs. Bowen v. American Family Insurance Company,
2012 WI App 29,
340 Wis. 2d 232,
811 N.W.2d 887,
11-0185.
895.04 Annotation
Sub. (4) does not expand the class of claimants who may recover loss of society and companionship damages beyond those who may recover for wrongful death under subs. (1) and (2). Sub. (4) limits the availability of loss of society and companionship damages to certain persons within the class of claimants entitled to bring wrongful death actions. Bowen v. American Family Insurance Company,
2012 WI App 29,
340 Wis. 2d 232,
811 N.W.2d 887,
11-0185.
895.04 Annotation
The cause of action authorized under s. 895.03 applies only to deaths caused in Wisconsin. However, Wisconsin courts must allow plaintiffs to sue under another interested state's law when no Wisconsin law provides for the action and Wisconsin has no public policy against recovery. When there is no cause of action under s. 895.03 and another state's wrongful death statute applies, the terms and limitations in s. 895.04 do not apply. Waranka v. Wadena Insurance Company,
2014 WI 28,
353 Wis. 2d 619,
847 N.W.2d 324,
12-0320.
895.04 Annotation
"Surviving spouse" in sub. (2) does not always simply mean any living spouse of the deceased. A careful reading of sub. (2) makes it clear that the trial court, in an attempt to protect the children, must work from the amount recovered by the spouse who is charged with the support of the minor children. In order to avoid an absurd, unreasonable result contrary to the legislative purposes of the wrongful death statutes, under the unique facts of this case, s. 895.03 and sub. (2) are construed to allow the minor children to recover even though the deceased's spouse in the instant case is alive and does not recover any damages for the deceased husband's wrongful death. Force v. American Family Mutual Insurance Company,
2014 WI 82, ___ Wis. 2d ___,
850 N.W.2d 866,
12-2402.
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.
895.043(1)(a)
(a) "Defendant" means the party against whom punitive damages are sought.
895.043(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.
895.043(1)(c)
(c) "Plaintiff" means the party seeking to recover punitive damages.
895.043(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.
895.043(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 (9) (a) and
(b),
51.30 (9),
51.61 (7),
55.043 (9m) (a) and
(b),
103.96 (2),
134.93 (5),
146.84 (1) (b) and
(bm),
153.76,
252.14 (4),
252.15 (8) (a),
610.70 (7) (b),
943.245 (2) and
(3) and
943.51 (2) and
(3).
895.043(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.
895.043(4)
(4) Procedure. If the plaintiff establishes a prima facie case for the allowance of punitive damages:
895.043(4)(a)
(a) The plaintiff may introduce evidence of the wealth of a defendant; and
895.043(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.
895.043(5)
(5) Application of joint and several liability. The rule of joint and several liability does not apply to punitive damages.
895.043(6)
(6) Limitation on damages. Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater. This subsection does not apply to a plaintiff seeking punitive damages from a defendant whose actions under
sub. (3) included the operation of a vehicle, including a motor vehicle as defined under
s. 340.01 (35), a snowmobile as defined under
s. 340.01 (58a), an all-terrain vehicle as defined under
s. 340.01 (2g), a utility terrain vehicle as defined under
s. 23.33 (1) (ng), and a boat as defined under
s. 30.50 (2), while under the influence of an intoxicant to a degree that rendered the defendant incapable of safe operation of the vehicle. In this subsection, "intoxicant" has the meaning given in
s. 30.50 (4e).
895.043 Note
NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85 [now s. 895.043].
895.043 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).
895.043 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).
895.043 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),
95-2867.
895.043 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),
95-1028.
895.043 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),
97-0353.
895.043 Annotation
The requirement under sub. (3) that the defendant act "in an intentional disregard of the rights of the plaintiff" necessitates that the defendant act with a purpose to disregard the plaintiff's rights or be aware that his or her conduct is substantially certain to result in the plaintiff's rights being disregarded. The act or course of conduct must be deliberate and must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right. There is no requirement of intent to injure or cause harm. Wischer v. Mitsubishi Heavy Industries America, Inc.
2005 WI 26,
279 Wis. 2d 6,
694 N.W.2d 320,
01-0724.
895.043 Annotation
A defendant's conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute. Wischer v. Mitsubishi Heavy Industries America, Inc.
2005 WI 26,
279 Wis. 2d 6,
694 N.W.2d 320,
01-0724.
