Chapter 893

893.44 Annotation This section does not apply to actions for the recovery of sales commissions. Erdman v. Jovoco, Inc., 181 Wis. 2d 736, 512 N.W.2d 487 (1994).

893.44 Annotation The distinguishing feature of personal services under this section is whether the human labor itself is sought and is the object of the compensation or whether the end-product of the service is purchased. Paulson v. Shapiro, 490 F.2d 1 (1973).

893.45 893.45 Acknowledgment or new promise. No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the cause out of the operation of this chapter, unless the same be contained in some writing signed by the party to be charged thereby.

893.45 History History: 1979 c. 323.

893.45 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.42 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.46 893.46 Acknowledgment, who not bound by. If there are 2 or more joint contractors or joint personal representatives of any contractor, no such joint contractor or joint personal representative shall lose the benefit of this chapter so as to be chargeable by reason only of any acknowledgment or promise made by any other of them.

893.46 History History: 1979 c. 323; 2001 a. 102.

893.46 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.43 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.47 893.47 Actions against parties jointly liable. In actions commenced against 2 or more joint contractors or joint personal representatives of any contractors, if it shall appear, on the trial or otherwise, that the plaintiff is barred by this chapter as to one or more of the defendants but is entitled to recover against any other or others of them by virtue of a new acknowledgment or promise or otherwise, judgment shall be given for the plaintiff as to any of the defendants against whom the plaintiff is entitled to recover and for the other defendant or defendants against the plaintiff.

893.47 History History: 1979 c. 323; 2001 a. 102.

893.47 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.44 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.48 893.48 Payment, effect of, not altered. Nothing contained in ss. 893.44 to 893.47 shall alter, take away or lessen the effect of a payment of any principal or interest made by any person, but no endorsement or memorandum of any such payment, written or made upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom the payment is made or purports to be made, is sufficient proof of the payment so as to take the case out of the operation of this chapter.

893.48 History History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1979 c. 323.

893.48 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.46 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.49 893.49 Payment by one not to affect others. If there are 2 or more joint contractors or joint personal representatives of any contractor, no one of them shall lose the benefit of this chapter so as to be chargeable by reason only of any payment made by any other of them.

893.49 History History: 1979 c. 323; 2001 a. 102.

893.49 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.47 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.50 893.50 Other actions. All personal actions on any contract not limited by this chapter or any other law of this state shall be brought within 10 years after the accruing of the cause of action.

893.50 History History: 1979 c. 323.

893.50 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.26 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

subch. V of ch. 893 SUBCHAPTER V

TORT ACTIONS

893.51 893.51 Action for wrongful taking of personal property.

893.51(1) (1) Except as provided in sub. (2), an action to recover damages for the wrongful taking, conversion or detention of personal property shall be commenced within 6 years after the cause of action accrues or be barred. The cause of action accrues at the time the wrongful taking or conversion occurs, or the wrongful detention begins.

893.51(2) (2) An action under s. 134.90 shall be commenced within 3 years after the misappropriation of a trade secret is discovered or should have been discovered by the exercise of reasonable diligence. A continuing misappropriation constitutes a single claim.

893.51 History History: 1979 c. 323; 1985 a. 236.

893.51 Note Judicial Council Committee’s Note, 1979: This section is based on previous s. 893.19 (6), without change in substance, but with some expansion of language to make clear that accrual of the cause of action is not delayed until the person bringing the action learns of the wrongful taking or detention. An action for recovery of the personal property is subject to s. 893.35 which is also based on previous s. 893.19 (6). [Bill 326-A]

893.51 Annotation A wrongful detention claim is separate from a conversion claim. A wrongful detention claim may arise against a possessor of previously converted or wrongfully taken property. Under those facts, a wrongful detention claim is available and, for purposes of sub. (1) and s. 893.35, accrues at the time the property is obtained. No demand is necessary. Mueller v. TL90108, LLC, 2020 WI 7, 390 Wis. 2d 34, 938 N.W.2d 566, 17-1962.

893.51 Annotation Sub. (1) and s. 893.35 are statutes of repose, not statutes of limitation. A statute of repose provides that a cause of action must be commenced within a specified amount of time after the defendant’s action that allegedly led to injury, regardless of whether the plaintiff has discovered the injury or wrongdoing. With regard to a wrongful detention claim, the statutes focus on when the wrongful detention begins, not when the property owner discovers or knows of the detention. Mueller v. TL90108, LLC, 2020 WI 7, 390 Wis. 2d 34, 938 N.W.2d 566, 17-1962.

893.52 893.52 Action for damages for injury to property.

893.52(1) (1) Except as provided in sub. (2) and in any other case where a different period is expressly prescribed, an action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred.

893.52(2) (2) An action, not arising on contract, to recover damages for an injury to real or personal property that are caused or sustained by, or that arise from, an accident involving a motor vehicle shall be commenced within 3 years after the cause of action accrues or be barred.

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

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

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.