895.01 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.
895.01 Annotation
Survival claims accrue on the date the injury is discovered or with reasonable diligence should be discovered by either the decedent or an appropriate 3rd party, often the decedent's personal representative, whichever occurs first. Christ v. Exxon Mobil Corporation,
2015 WI 58,
362 Wis. 2d 668,
866 N.W.2d 602,
12-1493.
895.01 Annotation
Actions under ss. 551.41 and 551.59 survive the death of the wrongdoer. Continental Assurance Co. v. American Bankshares Corp.
483 F. Supp. 175 (1980).
895.02
895.02
Measure of damages against personal representative. When any action described in s.
895.01 (1) shall be prosecuted to judgment against the personal representative, the plaintiff shall be entitled to recover only for the value of the goods taken, including any unjust enrichment of the defendant, or for the damages actually sustained, without any vindictive or exemplary damages or damages for alleged outrage to the feelings of the injured party.
895.02 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975);
1977 c. 176;
2001 a. 102.
895.03
895.03
Recovery for death by wrongful act. Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.
895.03 Annotation
A complaint alleging that the defendant shot the plaintiff's husband and that the shooting was wrongful was sufficient to state a cause of action. Kelly v. Mohrhusen,
50 Wis. 2d 337,
184 N.W.2d 149 (1971).
895.03 Annotation
It is sufficient if the death was caused by a wrongful act, neglect, or default in this state. It is not necessary that the death occur in the state. The statute includes cases dealing with breach of warranty arising out of contract. Schnabl v. Ford Motor Co.
54 Wis. 2d 345,
195 N.W.2d 602,
198 N.W.2d 161 (1972).
895.03 Annotation
A decedent must have had an actionable claim for damages at the time of death for a wrongful death cause of action to exist. If the statute of limitations would have barred the decedent from bringing a medical malpractice action, had the decedent lived, a wrongful death action based on the alleged malpractice is also barred. Miller v. Luther,
170 Wis. 2d 429,
489 N.W.2d 651 (Ct. App. 1992).
895.03 Annotation
This section does not provide when a claim for damages due to wrongful death accrues, or when it must be brought, or when it will be lost. A derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice, s. 893.55, rather than the general wrongful death statute of limitations, s. 893.54, and accrues on the same date as the medical negligence action on which it is based — the date of injury, not the date of death. Estate of Genrich v. OHIC Insurance Company,
2009 WI 67,
318 Wis. 2d 553,
769 N.W.2d 481,
07-0541.
895.03 Annotation
This section says nothing about who can bring a wrongful death claim, or who the defendants can be. The statute only permits the representative of a deceased to maintain an action the deceased could have maintained had he or she lived. It did not prevent the father of a fetus killed in a car accident from suing the insurer of the fetus's mother. Tesar v. Anderson,
2010 WI App 116,
329 Wis. 2d 240,
789 N.W.2d 351,
09-1993.
895.03 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,
354 Wis. 2d 717,
848 N.W.2d 295,
12-0320.
895.03 Annotation
The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corporation,
2015 WI 58,
362 Wis. 2d 668,
866 N.W.2d 602,
12-1493.
895.031
895.031
Recovery from estate of wrongdoer. If the death of a person is caused by a wrongful act or omission committed in this state that, if death had not ensued, would have entitled the injured party to maintain an action and recover damages and the wrongdoer dies prior to the time of the death of the injured person, the wrongdoer shall be liable for damages notwithstanding either death. Any right of action against a deceased wrongdoer under this section shall be enforced by bringing an action against the deceased wrongdoer's personal representative.
895.031 History
History: 1993 a. 486;
2001 a. 102.
895.035
895.035
Parental liability for acts of minor child. 895.035(1)(a)1.
1. “Custody" means either legal custody of a child under a court order under s.
767.225 or
767.41, custody of a child under a stipulation under s.
767.34 or actual physical custody of a child. “Custody" does not include legal custody, as defined under s.
48.02 (12), by an agency or a person other than a child's birth or adoptive parent.
895.035(1)(b)
(b) In determining which parent has custody of a child for purposes of this section, the court shall consider which parent had responsibility for caring for and supervising the child at the time the act that caused the injury, damage or loss occurred.
895.035(2)(a)(a) The parent or parents with custody of a minor child, in any circumstances where he, she, or they may not be liable under the common law, are liable for damages to property, for the cost of repairing or replacing property or removing the marking, drawing, writing, or etching from property regarding a violation under s.
943.017, for the value of unrecovered stolen property, or for personal injury attributable to a willful, malicious, or wanton act of the child.
895.035(2)(b)1.1. The parent or parents with custody of their minor child are jointly and severally liable with the child for the damages imposed under s.
943.51 for their child's violation of s.
943.50.
895.035(2)(b)2.
2. If a parent is jointly and severally liable under this paragraph and has physical placement of the child, the parent's liability is limited to that percentage representing the time that the child actually spends with that parent.
895.035(2)(b)3.
3. Notwithstanding sub.
(1), a parent does not have custody of a child for purposes of this paragraph if at the time of the violation the child has been freed from the care, custody, and control of the parent through marriage or emancipation or if at the time of the violation the parent does not reasonably have the ability to exercise supervision and control of the child because the child is uncontrollable or because another person has interfered with that parent's exercise of supervision and control.
895.035(2g)
(2g) The parent or parents with custody of a minor child are liable for the cost of the repair or replacement of, or the removal of the etching, marking, drawing or writing from, property damaged as the result of a violation of an ordinance that prohibits intentional etching or marking, drawing or writing with paint, ink or other substance on the physical property of another without the other's consent.
895.035(2m)(a)(a) If a juvenile or a parent with custody of a juvenile fails to pay restitution under s.
938.245,
938.32,
938.34 (5),
938.343 (4),
938.345 or
938.45 (1r) (a) as ordered by a court assigned to exercise jurisdiction under chs.
48 and
938, a court of criminal jurisdiction or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the juvenile or parent will not pay restitution as ordered or agreed to, the victim, the victim's insurer, the representative of the public interest under s.
938.09 or the agency, as defined in s.
938.38 (1) (a), supervising the juvenile may petition the court assigned to exercise jurisdiction under chs.
48 and
938 to order that the amount of restitution unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the victim or the victim's insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim's insurer, or both, from commencing another action seeking compensation from the juvenile or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim's insurer.
895.035(2m)(b)
(b) If a juvenile or a parent with custody of a juvenile fails to pay a forfeiture as ordered by a court assigned to exercise jurisdiction under chs.
48 and
938, a court of criminal jurisdiction or a municipal court, if a juvenile or a parent with custody of a juvenile fails to pay costs as ordered by the court assigned to exercise jurisdiction under chs.
48 and
938 or a municipal court, if a juvenile fails to pay a surcharge as ordered by a court assigned to exercise jurisdiction under chs.
48 and
938 or a court of criminal jurisdiction or if it appears likely that the juvenile or the parent will not pay the forfeiture or surcharge as ordered, the representative of the public interest under s.
938.09, the agency, as defined in s.
938.38 (1) (a), supervising the juvenile or the law enforcement agency that issued the citation to the juvenile may petition the court assigned to exercise jurisdiction under chs.
48 and
938 to order that the amount of the forfeiture, surcharge or costs unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture, surcharge or costs is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.
895.035(2m)(bm)1.1. Before issuing an order under par.
(a) or
(b), the court assigned to exercise jurisdiction under chs.
48 and
938 shall give the juvenile and the parent notice of the intent to issue the order and an opportunity to be heard regarding the order. The court shall give the juvenile and the parent an opportunity to present evidence as to the amount of the restitution, forfeiture or surcharge unpaid, but not as to the amount of the restitution, forfeiture or surcharge originally ordered. The court shall also give the juvenile and the parent an opportunity to present evidence as to the reason for the failure to pay the restitution, forfeiture or surcharge and the ability of the juvenile or the parent to pay the restitution, forfeiture or surcharge. In considering the ability of the juvenile or the parent to pay the restitution, forfeiture or surcharge, the court may consider the assets, as well as the income, of the juvenile or the parent and may consider the future ability of the juvenile or parent to pay the restitution, forfeiture or surcharge within the time specified in s.
893.40.
895.035(2m)(bm)2.
2. In proceedings under this subsection, the court assigned to exercise jurisdiction under chs.
48 and
938 may take judicial notice of any deferred prosecution agreement, consent decree, dispositional order, sentence, extension of a consent decree, dispositional order or sentence or any other finding or order in the records of the juvenile maintained by that court or the municipal court.
895.035(2m)(bm)3.
3. In proceedings under this subsection, the juvenile and the parent may retain counsel of their own choosing at their own expense, but a juvenile or a parent has no right to be represented by appointed counsel in a proceeding under this subsection.
895.035(2m)(c)
(c) The court assigned to exercise jurisdiction under chs.
48 and
938 may order that the juvenile perform community service work for a public agency or nonprofit charitable organization that is designated by the court in lieu of making restitution or paying the forfeiture or surcharge. If the parent agrees to perform community service work in lieu of making restitution or paying the forfeiture or surcharge, the court may order that the parent perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the juvenile or parent to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the restitution, forfeiture, or surcharge by the minimum wage established under s.
104.035 (1). The court shall ensure that the juvenile or parent is provided with a written statement of the terms of the community service order and that the community service order is monitored.
895.035(3)
(3) An adjudication under s.
938.183 or
938.34 that the juvenile violated a civil law or ordinance, is delinquent or is in need of protection and services under s.
938.13 (12), based on proof that the juvenile committed the act, subject to its admissibility under s.
904.10, shall, in an action under sub.
(1), stop a juvenile's parent or parents from denying that the juvenile committed the act that resulted in the injury, damage or loss.
895.035(4)
(4) Except for recovery under sub.
(4a) or for retail theft under s.
943.51, the maximum recovery under this section from any parent or parents may not exceed $5,000 for damages resulting from any one act of a juvenile in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court. If 2 or more juveniles in the custody of the same parent or parents commit the same act the total recovery under this section may not exceed $5,000, in addition to taxable costs and disbursements. The maximum recovery from any parent or parents for retail theft by their minor child is established under s.
943.51.
895.035(4a)(a)(a) The maximum recovery under this section by a school board or a governing body of a private school from any parent or parents with custody of a minor child may not exceed $20,000 for damages resulting from any one act of the minor child in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court, for damages caused to the school board or the governing body of a private school by any of the following actions of the minor child:
895.035(4a)(a)1.
1. An act or threat that endangers the property, health or safety of persons at the school or under the supervision of a school authority or that damages the property of a school board or the governing body of a private school and that results in a substantial disruption of a school day or a school activity.
895.035(4a)(b)
(b) In addition to other recoverable damages, damages under par.
(a) may include the cost to the school board or the governing body of a private school in loss of instructional time directly resulting from the action of the minor child under par.
(a).
895.035(4a)(c)
(c) If 2 or more minor children in the custody of the same parent or parents are involved in the same action under par.
(a), the total recovery may not exceed $20,000, in addition to taxable costs, disbursements and reasonable attorney fees, as determined by the court.
895.035(4a)(d)
(d) If an insurance policy does not explicitly provide coverage for actions under par.
(a), the issuer of that policy is not liable for the damages resulting from those actions.
895.035(5)
(5) This section does not limit the amount of damages recoverable by an action against a child or children except that any amount so recovered shall be reduced and apportioned by the amount received from the parent or parents under this section.
895.035 Annotation
This section imposes absolute liability on parents once all elements have been established. Accordingly, the defense of contributory negligence is unavailable to parents. First Bank Southeast v. Bentkowski,
138 Wis. 2d 283,
405 N.W.2d 764 (Ct. App. 1987).
895.035 Annotation
An “act" under sub. (4) is a complete course of conduct. What distinguishes a single act from multiple acts is whether: 1) a sufficient period of time separates the conduct; 2) the conduct occurred at separate locations; and 3) there is a distinct difference in the nature of the conduct. In cases of improper sexual contact, the jury need not make an individual damage determination for each act. N.E.M. v. Strigel,
208 Wis. 2d 1,
559 N.W.2d 256 (1997),
95-0755.
895.035 Annotation
Under s. 938.34 (5) (a) assessing the damages to the victim is the first step in the court's determination of restitution and determining the amount the juvenile is capable of paying is the second. Whichever amount is lower is the maximum amount that the court may order as restitution. Under sub. (2m) (a) courts are without authority to order that the “total damage" figure be converted to a civil judgment. Sub. (2m) (a) allows only for the conversion of restitution. State v. Anthony D.
2006 WI App 218,
296 Wis. 2d 771,
723 N.W. 2d 775,
05-2644.
895.035 Annotation
The constitutional validity of parental liability statutes. O'Connor, 55 MLR 584.
895.035 Note
NOTE: See also the notes to s. 343.15, for parental responsibility for minor drivers.
895.037
895.037
Abortions on or for a minor without parental consent or judicial waiver. 895.037(2)(a)(a) Any person who, in violation of s.
48.375 (4), intentionally performs or induces an abortion on or for a minor whom the person knows or has reason to know is not an emancipated minor may be required to forfeit not more than $10,000.
895.037(3)(a)(a) A person who intentionally violates s.
48.375 (4) is liable to the minor on or for whom the abortion was performed or induced and to the minor's parent, guardian and legal custodian for damages arising out of the performance or inducement of the abortion including, but not limited to, damages for personal injury and emotional and psychological distress.
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).
