Chapter 893

893.52 Annotation Section 893.19 (5) [now this section] applies to actions based on negligent construction of dwellings. The statute begins to run when the plaintiff suffers injury. Abramowski v. Wm. Kilps Sons Realty, Inc., 80 Wis. 2d 468, 259 N.W.2d 306 (1977).

893.52 Annotation The limitation period begins when evidence of resultant injury is sufficiently significant to alert the injured party to the possibility of a defect. Tallmadge v. Skyline Construction, Inc., 86 Wis. 2d 356, 272 N.W.2d 404 (Ct. App. 1978).

893.52 Annotation In actions for legal malpractice, the date of injury, rather than the date of the negligent act, commences the period of limitations. Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983).

893.52 Annotation A cause of action accrues when the negligent act occurs, or the last in a continuum of negligent acts occur, and the plaintiff has a basis for objectively concluding that the defendant caused injuries and damages. Kolpin v. Pioneer Power & Light Co., 162 Wis. 2d 1, 469 N.W.2d 595 (1991).

893.52 Annotation This section permits parties to contract for lesser limitations periods and to specify the day the period begins to run, in which case the “discovery rule” does not apply. Keiting v. Skauge, 198 Wis. 2d 887, 543 N.W.2d 565 (Ct. App. 1995), 95-2259.

893.52 Annotation A claim for asbestos property damage accrues when the plaintiff is informed of the presence of asbestos and that precautions are necessary. Banc One Building Management Corp. v. W.R. Grace Co., 210 Wis. 2d 62, 565 N.W.2d 154 (Ct. App. 1997), 95-3193.

893.52 Annotation In the case of a claim for faulty workmanship, a builder’s representation can result in a justifiable delay in discovering the cause of an injury. Whether the plaintiff’s course of conduct is reasonable is a question of fact. Williams v. Kaerek Builders, Inc., 212 Wis. 2d 150, 568 N.W.2d 313 (Ct. App. 1997), 96-2396.

893.52 Annotation A plaintiff can rely on the discovery rule only if the plaintiff has exercised reasonable diligence. Jacobs v. Nor-Lake, Inc., 217 Wis. 2d 625, 579 N.W.2d 254 (Ct. App. 1998), 97-1740.

893.52 Annotation A party’s deficient performance of a contract does not give rise to a tort claim. There must be a duty independent of the contract for a cause of action in tort. Atkinson v. Everbrite, Inc., 224 Wis. 2d 724, 592 N.W.2d 299 (Ct. App. 1999), 98-1806.

893.52 Annotation The accrual of a stray voltage claim is governed by the discovery rule. When the defendant utility went to the farm three times and found no problem, the plaintiff could not be faulted for accepting the results of the utility’s testing and continuing to search for other possible sources of the problem. Allen v. Wisconsin Public Service Corp., 2005 WI App 40, 279 Wis. 2d 488, 694 N.W.2d 420, 03-2690.

893.52 Annotation Section 893.57, and not this section, applies to a claim alleging intentional trespass. Because the existence of damages for injury to real property is not necessary to maintain a claim for intentional trespass, sub. (1) cannot govern an intentional trespass claim. Munger v. Seehafer, 2016 WI App 89, 372 Wis. 2d 749, 890 N.W.2d 22, 14-2594.

893.52 Annotation An action for a permanent nuisance must be filed within the applicable statutes of limitations, but an action for a continuing nuisance may be maintained beyond the ordinary statutes of limitations. The appropriate factors to consider in deciding whether a nuisance is continuing are: 1) whether it constitutes an ongoing or repeated disturbance or harm; and 2) whether it can be discontinued or abated. If both factors are present, a nuisance is deemed to be continuing. In this case, claims for nuisance based on property damage that related to disrupted “views and vistas” accrued when wind turbines were erected, and those claims were for permanent nuisances, not continuing nuisances. Therefore, the claims were subject to sub. (1). Enz v. Duke Energy Renewable Services, Inc., 2023 WI App 24, 407 Wis. 2d 728, 991 N.W.2d 423, 21-0989.

893.53 893.53 Action for injury to character or other rights. An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 3 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred.

893.53 History History: 1979 c. 323; 2017 a. 235.

893.53 Note Judicial Council Committee’s Note, 1979: This section is based upon previous s. 893.19 (5) which is split into 2 provisions. See s. 893.52 for the other provision. [Bill 326]

893.53 Annotation This section applies to legal malpractice actions that sound in tort. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).

893.53 Annotation Discussing the application of the discovery rule to legal malpractice actions. Hennekens v. Hoerl, 160 Wis. 2d 144, 465 N.W.2d 812 (1991).

893.53 Annotation This section and the discovery rule apply to engineering malpractice actions. Milwaukee Partners v. Collins Engineers, Inc., 169 Wis. 2d 355, 485 N.W.2d 274 (Ct. App. 1992).

893.53 Annotation This section is the state’s general and residual personal injury statute of limitations and is applicable to 42 USC 1983 actions. Hemberger v. Bitzer, 216 Wis. 2d 509, 574 N.W.2d 656 (1998), 96-2973.

893.53 Annotation A party’s deficient performance of a contract does not give rise to a tort claim. There must be a duty independent of the contract for a cause of action in tort. Atkinson v. Everbrite, Inc., 224 Wis. 2d 724, 592 N.W.2d 299 (Ct. App. 1999), 98-1806.

893.53 Annotation Even though a plaintiff might plead and testify to having suffered emotional distress on account of a lawyer’s malpractice, that fact does not convert the claim into one seeking redress for injuries to the person. The underlying injuries in a legal malpractice claim are to rights and interests of a plaintiff that go beyond, or at least are different from, injuries to the plaintiff’s person under s. 893.54. Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809, 01-0751.

893.53 Annotation The residual or general personal injury statute of limitations applies to 42 USC 1983 actions. Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989).

893.53 Annotation While the court borrows the state’s limitations period for an action under 42 USC 1983, federal law determines the action’s accrual date. Because habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of the prisoner’s confinement and seeks immediate or speedier release, any section 1983 action challenging the fact or length of confinement does not accrue until the underlying confinement has been invalidated through a direct appeal, post-conviction relief, or some other means. Huber v. Anderson, 909 F.3d 201 (2018).

893.53 Annotation This section applies to actions under Title II of the federal Americans with Disabilities Act. Doe v. County of Milwaukee, 871 F. Supp. 1072 (1995).

893.53 Cross-reference Cross-reference: See also the notes to s. 893.54 for additional treatments of 42 USC 1983.

893.54 893.54 Injury to the person.

893.54(1m) (1m) Except as provided in sub. (2m), the following actions shall be commenced within 3 years or be barred:

893.54(1m)(a) (a) An action to recover damages for injuries to the person, including an action to recover damages for injuries to the person caused or sustained by or arising from an accident involving a motor vehicle.

893.54(1m)(b) (b) An action brought to recover damages for death caused by the wrongful act, neglect or default of another.

893.54(2m) (2m) An action brought to recover damages for death caused by the wrongful act, neglect, or default of another and arising from an accident involving a motor vehicle shall be commenced within 2 years after the cause of action accrues or be barred.

893.54 History History: 1979 c. 323; 2015 a. 133.

893.54 Note Judicial Council Committee’s Note, 1979: This section is derived from previous s. 893.205 but was amended to eliminate language now covered by newly created s. 893.07. (See note to s. 893.07). [Bill 326-A]

893.54 Annotation Because the parents’ claim arising from an injury to their minor child was filed along with the child’s claim within the time period for the child’s claim under s. 893.18, the parents’ claim was not barred by this section. Korth v. American Family Insurance Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983).

893.54 Annotation This section and s. 893.80 both apply to personal injury actions against governmental entities. Schwetz v. Employers Insurance of Wausau, 126 Wis. 2d 32, 374 N.W.2d 241 (Ct. App. 1985).

893.54 Annotation When a plaintiff’s early subjective lay person’s belief that a furnace caused the injury was contradicted by examining physicians, the cause of action against the furnace company did not accrue until the plaintiff’s suspicion was confirmed by later medical diagnosis. Borello v. U.S. Oil Co., 130 Wis. 2d 397, 388 N.W.2d 140 (1986).

893.54 Annotation While adoptive parents were aware of the possibility that their child might develop a disease in the future, a cause of action did not accrue until the child was diagnosed as having the disease. Meracle v. Children’s Service Society of Wisconsin, 149 Wis. 2d 19, 437 N.W.2d 532 (1989).

893.54 Annotation When a doctor initially diagnosed a defective prosthesis, but advised surgery as the only way to determine what exactly was wrong, the plaintiff’s cause of action against the prosthesis manufacturer accrued when the diagnosis was confirmed by surgery. S.J.D. v. Mentor Corp., 159 Wis. 2d 261, 463 N.W.2d 873 (Ct. App. 1990).

893.54 Annotation The brain damaged accident victim’s cause of action accrued when the victim discovered, or when a person of the same degree of mental and physical handicap under the same or similar circumstances should have discovered, the injury, its cause and nature, and the defendants’ identities. Carlson v. Pepin County, 167 Wis. 2d 345, 481 N.W.2d 498 (Ct. App. 1992).

893.54 Annotation Claimed ignorance of, and a blatant failure to follow, applicable regulations cannot be construed as reasonable diligence in discovering an injury when following the rule would have resulted in earlier discovery. Stroh Die Casting Co. v. Monsanto Co., 177 Wis. 2d 91, 502 N.W.2d 132 (Ct. App. 1993).

893.54 Annotation The discovery rule does not allow a plaintiff to delay the statute of limitations until the extent of the injury is known. The statute begins to run when the plaintiff has sufficient evidence that a wrong has been committed by an identified person. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 533 N.W.2d 780 (1995).

893.54 Annotation A claim of repressed memory does not indefinitely toll the statute of limitations nor delay the accrual of a cause of action, regardless of the victim’s minority or the position of trust occupied by the alleged perpetrator. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997), 94-0423.

893.54 Annotation Parents’ claims for injury resulting from the sexual assault of their child accrue when the child’s claims accrue, regardless of when the parents learn of their claims. Joseph W. v. Catholic Diocese of Madison, 212 Wis. 2d 925, 569 N.W.2d 795 (Ct. App. 1997), 96-2220.

893.54 Annotation Section 893.53 is the state’s general and residual personal injury statute of limitations and is applicable to 42 USC 1983 actions. Hemberger v. Bitzer, 216 Wis. 2d 509, 574 N.W.2d 656 (1998), 96-2973.

893.54 Annotation The diagnosis of a non-malignant asbestos-related lung pathology did not trigger the statute of limitations with respect to a later-diagnosed, distinct malignant asbestos-related condition. Because the malignancy could not have been predicted when an earlier action relating to the non-malignant condition was dismissed on the merits, the doctrine of claim preclusion was not applied to bar the plaintiff’s action. Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 601 N.W.2d 627 (1999), 98-1343.

893.54 Annotation The statute of limitations for subrogation claims is the statute of limitations on the underlying tort. Schwittay v. Sheboygan Falls Mutual Ins. Co., 2001 WI App 140, 246 Wis. 2d 385, 630 N.W.2d 772, 00-2445.

893.54 Annotation Even though a plaintiff might plead and testify to having suffered emotional distress on account of a lawyer’s malpractice, that fact does not convert the claim into one seeking redress for injuries to the person. The underlying injuries in a legal malpractice claim are to rights and interests of a plaintiff that go beyond, or at least are different from, injuries to the plaintiff’s person under this section. Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809, 01-0751.

893.54 Annotation Knowing that a particular product caused an injury, an injured party cannot extend the accrual date for a cause of action against the product’s manufacturer due to the subsequent discovery of possible connections between that product and another manufacturer’s product in causing the injury. Baldwin v. Badger Mining Corp., 2003 WI App 95, 264 Wis. 2d 301, 663 N.W.2d 382, 02-1197.

893.54 Annotation Claims of negligent supervision made against an archdiocese for injuries caused by sexual assaults by priests are derivative of the underlying sexual molestations by the priests. As claims for injuries resulting from sexual assault accrue by the time of the last incident of sexual assault, the derivative claims accrue, as a matter of law, by the time of the last incident of sexual assault. Doe v. Archdiocese of Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827, 05-1945.

893.54 Annotation 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, this section, 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 Co., 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.

893.54 Annotation When an action to recover damages for injuries to the person is commenced as a counterclaim pursuant to s. 893.14, the statute of limitations established by this section applies. Donaldson v. West Bend Mutual Insurance Co., 2009 WI App 134, 321 Wis. 2d 244, 773 N.W.2d 470, 08-2289.

893.54 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 Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12-1493.

893.54 Annotation An action for a permanent nuisance must be filed within the applicable statutes of limitations, but an action for a continuing nuisance may be maintained beyond the ordinary statutes of limitations. The appropriate factors to consider in deciding whether a nuisance is continuing are: 1) whether it constitutes an ongoing or repeated disturbance or harm; and 2) whether it can be discontinued or abated. If both factors are present, a nuisance is deemed to be continuing. In this case, the plaintiffs’ claims for nuisance based on personal injury were barred by sub. (1m) (a) because the wind turbines alleged to have caused their injuries were no longer causing ongoing or repeated disturbance or harm after the plaintiffs moved out of their homes and their physical symptoms ceased and therefore did not constitute a continuous nuisance. Enz v. Duke Energy Renewable Services, Inc., 2023 WI App 24, 407 Wis. 2d 728, 991 N.W.2d 423, 21-0989.

893.54 Annotation The tractor-trailer at issue in this case was a “motor vehicle” for purposes of sub. (2m). The definitions of motor vehicle set forth in ss. 340.01 (35), 344.01 (2) (b), and 632.32 (2) (at) all recognize that a combination vehicle that includes both a self-propelled unit and an attached trailer qualifies as a single motor vehicle. Estate of Wiemer v. Zeeland Farm Services, Inc., 2023 WI App 47, 409 Wis. 2d 131, 995 N.W.2d 802, 22-1346.

893.54 Annotation In this case, the plaintiff climbed on top of a gravity-operated hopper trailer in an attempt to break apart compacted corn gluten, fell into the body of the trailer, became entrapped in the flow of corn gluten inside the trailer, and was smothered. Under the unambiguous language of sub. (2m), the accident “involved” a motor vehicle. Moreover, the plaintiff was “using” or “operating” the tractor-trailer at the time of death. Estate of Wiemer v. Zeeland Farm Services, Inc., 2023 WI App 47, 409 Wis. 2d 131, 995 N.W.2d 802, 22-1346.

893.54 Annotation A death arises from an accident for purposes of sub. (2m) if the death originates from an accident—in other words, if there is a causal relationship between an accident and the death. Estate of Wiemer v. Zeeland Farm Services, Inc., 2023 WI App 47, 409 Wis. 2d 131, 995 N.W.2d 802, 22-1346.

893.54 Annotation Federal civil rights actions under 42 USC 1983 are best characterized as personal injury actions. Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985).

893.54 Annotation The residual or general personal injury statute of limitations applies to 42 USC 1983 actions. Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989).

893.54 Cross-reference Cross-reference: See also the notes to s. 893.53 for additional treatments of 42 USC 1983.

893.55 893.55 Medical malpractice; limitation of actions; limitation of damages; itemization of damages.

893.55(1d) (1d) 

893.55(1d)(a) (a) The objective of the treatment of this section is to ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice. Achieving this objective requires a balancing of many interests. Based upon documentary evidence, testimony received at legislative hearings, and other relevant information, the legislature finds that a limitation on the amount of noneconomic damages recoverable by a claimant or plaintiff for acts or omissions of a health care provider, together with mandatory liability coverage for health care providers and mandatory participation in the injured patients and families compensation fund by health care providers, while compensating victims of medical malpractice in appropriate circumstances by the availability of unlimited economic damages, ensures that these objectives are achieved. Establishing a limitation on noneconomic damage awards accomplishes the objective by doing all of the following:

893.55(1d)(a)1. 1. Protecting access to health care services across the state and across medical specialties by limiting the disincentives for physicians to practice medicine in Wisconsin, such as the unavailability of professional liability insurance coverage, the high cost of insurance premiums, large fund assessments, and unpredictable or large noneconomic damage awards, as recognized by a 2003 U.S. congress joint economic committee report, a 2003 federal department of health and human services study, and a 2004 office of the commissioner of insurance report.

893.55(1d)(a)2. 2. Helping contain health care costs by limiting the incentive to practice defensive medicine, which increases the cost of patient care, as recognized by a 2002 federal department of health and human services study, a 2003 U.S. congress joint economic committee report, a 2003 federal government accounting office study, and a 2005 office of the commissioner of insurance report.

893.55(1d)(a)3. 3. Helping contain health care costs by providing more predictability in noneconomic damage awards, allowing insurers to set insurance premiums that better reflect such insurers’ financial risk, as recognized by a 2003 federal department of health and human services study.

893.55(1d)(a)4. 4. Helping contain health care costs by providing more predictability in noneconomic damage awards in order to protect the financial integrity of the fund and allow the fund’s board of governors to approve reasonable assessments for health care providers, as recognized by a 2005 legislative fiscal bureau memo, a 2001 legislative audit bureau report, and a 2005 office of commissioner of insurance report.

893.55(1d)(b) (b) The legislature further finds that the limitation of $750,000 represents an appropriate balance between providing reasonable compensation for noneconomic damages associated with medical malpractice and ensuring affordable and accessible health care. This finding is based on actuarial studies provided to the legislature, the experiences of other states with and without limitations on noneconomic damages associated with medical malpractice, the testimony of experts, and other documentary evidence presented to the legislature.

893.55(1d)(c) (c) Based on actuarial studies, documentary evidence, testimony, and the experiences of other states, the legislature concludes there is a dollar figure so low as to deprive the injured victim of reasonable noneconomic damages, and there is a dollar figure at which the cap number is so high that it fails to accomplish the goals of affordable and accessible health care. The legislature concludes that the number chosen is neither too high nor too low to accomplish the goals of affordable and accessible health care, is a reasonable and rational response to the current medical liability situation, and is reasonably and rationally supported by the legislative record.

893.55(1m) (1m) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

893.55(1m)(a) (a) Three years from the date of the injury, or

893.55(1m)(b) (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

893.55(2) (2) If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1m), whichever is later.

893.55(3) (3) When a foreign object which has no therapeutic or diagnostic purpose or effect has been left in a patient’s body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time limitation provided by sub. (1m), whichever is later.

893.55(4) (4) 

893.55(4)(a) (a) In this subsection, “noneconomic damages” means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, society and companionship; or loss of love and affection.

893.55(4)(b) (b) The total noneconomic damages recoverable for bodily injury, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under par. (d) for each occurrence on or after April 6, 2006, from all health care providers and all employees of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the injured patients and families compensation fund.

893.55(4)(c) (c) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.

893.55(4)(d) (d)

893.55(4)(d)1. 1. The limit on total noneconomic damages for each occurrence under par. (b) on or after April 6, 2006, shall be $750,000.

893.55(4)(d)2. 2. The board of governors created under s. 619.04 (3) shall submit a report to the legislature as provided under s. 13.172 (2) by January 1 of every odd numbered year of any recommended changes to the limits on noneconomic damages established in subd. 1. The report shall include the reasons why the changes are necessary to meet the intent of the legislative findings under sub. (1d).

893.55(4)(e) (e) Economic damages recovered under ch. 655 for bodily injury or death, including any action or proceeding based on contribution or indemnification, shall be determined for the period during which the damages are expected to accrue, taking into account the estimated life expectancy of the person, then reduced to present value, taking into account the effects of inflation.

893.55(4)(f) (f) Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04 (4).

893.55(5) (5) Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under sub. (4) (d):

893.55(5)(a) (a) Pain, suffering and noneconomic effects of disability.

893.55(5)(b) (b) Loss of consortium, society and companionship or loss of love and affection.

893.55(5)(c) (c) Loss of earnings or earning capacity.

893.55(5)(d) (d) Each element of medical expenses.

893.55(5)(e) (e) Other economic injuries and damages.

893.55(6) (6) Damages recoverable under this section against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, are subject to the provisions of s. 895.045.

893.55(7) (7) Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for medical malpractice. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.