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
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
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
. Partially overruled on other grounds. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91
, 293 Wis. 2d 38
, 717 N.W.2d 26
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
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
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
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
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
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
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
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
“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
, 356 Wis. 2d 582
, 850 N.W.2d 866
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
There may not be separate recovery for both an estate and its beneficiaries. Bell v. City of Milwaukee, 746 F.2d 1205
Expanding and limiting damages for pecuniary injury due to wrongful death. Schoone, 1972 WBB No. 4.
Cause of action by parents sustained for loss of society and companionship of child tortiously injured. 1976 WLR 641.
“Defendant" means the party against whom punitive damages are sought.
“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.
“Plaintiff" means the party seeking to recover punitive damages.
“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.
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)
, 51.30 (9)
, 51.61 (7)
, 55.043 (9m) (a)
, 103.96 (2)
, 134.93 (5)
, 146.84 (1) (b)
, 252.14 (4)
, 252.15 (8) (a)
, 610.70 (7) (b)
, 943.245 (2)
and 943.51 (2)
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.
If the plaintiff establishes a prima facie case for the allowance of punitive damages:
The plaintiff may introduce evidence of the wealth of a defendant; and
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.
Application of joint and several liability.
The rule of joint and several liability does not apply to punitive damages.
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)
, an off-highway motorcycle, as defined in s. 23.335 (1) (q)
, 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)
NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85 [now s. 895.043].
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
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).
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
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
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
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
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
Sub. (3) sets the bar for the kind of evidence required to support a punitive damage award and does not expand the category of cases where punitive damages may be awarded. In cases in which punitive damages are barred in the first instance, the standard for conduct under sub. (3) does not come into play. Groshek v. Trewin, 2010 WI 51
, 325 Wis. 2d 250
, 784 N.W.2d 163
Courts apply a six-factor test to determine whether a punitive damages award is excessive: 1) the grievousness of the acts; 2) the degree of malicious intent; 3) whether the award bears a reasonable relationship to the award of compensatory damages; 4) the potential damage that might have been caused by the acts; 5) the ratio of the award to civil or criminal penalties that could be imposed for comparable misconduct; and 6) the wealth of the wrongdoer. Courts are called upon to analyze only those factors which are most relevant to the case. The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct. Kimble v. Land Concepts, Inc. 2014 WI 21
, 353 Wis. 2d 377
, 845 N.W.2d 395
The due process clause does not permit a jury to base an award of punitive damages in part upon its desire to punish the defendant for harming persons who are not before the court. However, evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk to the general public, and so was particularly reprehensible. The due process clause requires state courts to provide assurance that juries are seeking simply to determine reprehensibility and not also to punish for harm caused to strangers. Philip Morris USA v. Williams, 784 U.S. 631
, 127 S. Ct. 1057
, 166 L. Ed. 2d 940
The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Unified Catholic Schools of Beaver Dam Education Association v. Universal Card Services Corp. 34 F. Supp. 2d 714
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
Damages for maintaining certain claims and counterclaims. 895.044(1)(1)
A party or a party's attorney may be liable for costs and fees under this section for commencing, using, or continuing an action, special proceeding, counterclaim, defense, cross complaint, or appeal to which any of the following applies:
The action, special proceeding, counterclaim, defense, cross complaint, or appeal was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense, cross complaint, or appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
Upon either party's motion made at any time during the proceeding or upon judgment, if a court finds, upon clear and convincing evidence, that sub. (1) (a)
applies to an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense, or cross complaint commenced, used, or continued by a defendant, the court:
May, if the party served with the motion withdraws, or appropriately corrects, the action, special proceeding, counterclaim, defense, or cross complaint within 21 days after service of the motion, or within such other period as the court may prescribe, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, special proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section. In determining whether to award, and the appropriate amount of, damages under this paragraph, the court shall take into consideration the timely withdrawal or correction made by the party served with the motion.
Shall, if a withdrawal or correction under par. (a)
is not timely made, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, special proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section.
If a party makes a motion under sub. (2)
, a copy of that motion and a notice of the date of the hearing on that motion shall be served on any party who is not represented by counsel only by personal service or by sending the motion to the party by registered mail.
If an award under this section is affirmed upon appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the successful party for the actual reasonable attorney fees the party incurred in the appeal.
If the appellate court finds that sub. (1) (a)
applies to an appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the successful party for all the actual reasonable attorney fees the party incurred in the appeal. An appeal is subject to this subsection in its entirety if any element necessary to succeed on the appeal is supported solely by an argument that is described under sub. (1) (a)
The costs and fees awarded under subs. (2)
, and (5)
may be assessed fully against the party bringing the action, special proceeding, cross complaint, defense, counterclaim, or appeal or the attorney representing the party, or both, jointly and severally, or may be assessed so that the party and the attorney each pay a portion of the costs and fees.
This section does not apply to criminal actions or civil forfeiture actions. Subsection (5)
does not apply to appeals under s. 809.107
, or 974.05
or to appeals of criminal or civil forfeiture actions.
History: 2011 a. 2
Contributory negligence. 895.045(1)(1)
Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51 percent is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51 percent or more shall be jointly and severally liable for the damages allowed.
Notwithstanding sub. (1)
, if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.043 (5)
In an action by any person to recover damages for injuries caused by a defective product based on a claim of strict liability, the fact finder shall first determine if the injured party has the right to recover damages. To do so, the fact finder shall determine what percentage of the total causal responsibility for the injury resulted from the contributory negligence of the injured person, what percentage resulted from the defective condition of the product, and what percentage resulted from the contributory negligence of any other person.
If the injured party's percentage of total causal responsibility for the injury is greater than the percentage resulting from the defective condition of the product, the injured party may not, based on the defect in the product, recover damages from the manufacturer, distributor, seller, or any other person responsible for placing the product in the stream of commerce.
If the injured party's percentage of total causal responsibility for the injury is equal to or less than the percentage resulting from the defective condition of the product, the injured party may recover but the damages recovered by the injured party shall be diminished by the percentage attributed to that injured party.
If multiple defendants are alleged to be responsible for the defective condition of the product, and the injured party is not barred from recovery under par. (b)
, the fact finder shall determine the percentage of causal responsibility of each product defendant for the defective condition of the product. The judge shall then multiply that percentage of causal responsibility of each product defendant for the defective condition of the product by the percentage of causal responsibility for the injury to the person attributed to the defective product. The result of that multiplication is the individual product defendant's percentage of responsibility for the damages to the injured party. A product defendant whose responsibility for the damages to the injured party is 51 percent or more of the total responsibility for the damages to the injured party is jointly and severally liable for all of the damages to the injured party. The responsibility of a product defendant whose responsibility for the damages to the injured party is less than 51 percent of the total responsibility for the damages to the injured party is limited to that product defendant's percentage of responsibility for the damages to the injured party.
If the injured party is not barred from recovery under par. (b)
, the fact that the injured party's causal responsibility for the injury is greater than an individual product defendant's responsibility for the damages to the injured party does not bar the injured party from recovering from that individual product defendant.
This subsection does not apply to actions based on negligence or a breach of warranty.
See s. 891.44
for conclusive presumption that child under 7 cannot be guilty of contributory negligence.
Ordinary negligence can be compared with negligence founded upon the safe-place statute, and in making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. It is not prejudicial error to not call attention to the different standards of care in a safe-place case when appropriate jury instructions are used. Lovesee v. Allied Development Corp. 45 Wis. 2d 340
, 173 N.W.2d 196
Adopting the doctrine of pure comparative negligence is a legislative matter. Vincent v. Pabst Brewing Co. 47 Wis. 2d 120
, 177 N.W.2d 513
There is no distinction between active and passive negligence as to responsibility for injury or full indemnity to a tortfeasor whose negligence was passive. Pachowitz v. Milwaukee & Suburban Transport Corp. 56 Wis. 2d 383
, 202 N.W.2d 268
For the purpose of applying the comparative negligence statute, both the causes of action for medical expenses and loss of consortium are derivative. The causal negligence of the injured spouse bars or limits the recovery of the claiming spouse pursuant to the terms of the statute. White v. Lunder, 66 Wis. 2d 563
, 225 N.W.2d 442
The contributory negligence of the plaintiff-spectator in viewing an auto race was not greater than defendants' negligence as a matter of law when the plaintiff did not realize that watching from a curve would be more dangerous than sitting in the grandstand, was not aware that tires would fly into the spectator area, there was no warning of potential dangers, and she was watching the race closely immediately prior to the accident. Kaiser v. Cook, 67 Wis. 2d 460
, 227 N.W.2d 50
The trial court's denial of a motion by 2 employee-defendants to direct the jury to consider the employer's negligence in its special verdict, even though the employer's liability extended only to workers compensation, was an error. Connar v. West Shore Equipment, 68 Wis. 2d 42
, 227 N.W.2d 660
The trial court's instruction to the jury not to compute all of the damages the plaintiff suffered, but only that portion caused by the defendant's negligence, was erroneous. This section requires the jury to find 100 percent of the plaintiff's damages, which are then reduced by the amount of contributory negligence. Nimmer v. Purtell, 69 Wis. 2d 21
, 230 N.W.2d 258
Conduct constituting implied or tacit assumption of risk is not a bar to an action for negligence. Polsky v. Levine, 73 Wis. 2d 547
, 263 N.W.2d 204
A minor injured during employment cannot be charged with contributory negligence when the employment is in violation of child labor laws. Tisdale v. Hasslinger, 79 Wis. 2d 194
, 255 N.W.2d 314
When the court granted judgment notwithstanding the verdict regarding 2 of several defendants found causally negligent, and the percentage of negligence reallocated affected damages but not liability, the plaintiffs should have been given the option of a proportional reduction of the judgment or a new trial. Chart v. General Motors Corp. 80 Wis. 2d 91
, 258 N.W.2d 680
If a court can find as matter of law that a party is causally negligent, contrary to the jury's answer, and the jury attributes some degree of comparative negligence to that party, the court should change the causal negligence answer and permit the jury's comparison to stand. Ollinger v. Grall, 80 Wis. 2d 213
, 258 N.W.2d 693
When blowing snow obstructed a driver's vision, but the driver did not reduce speed, and a parked truck on the highway “loomed up" out of the snow, the driver was causally negligent as matter of law. Nelson v. Travelers Ins. Co. 80 Wis. 2d 272
, 259 N.W.2d 48
The “emergency doctrine" relieves a person for liability for his actions when that person is faced with a sudden emergency he or she did not create. The “rescue rule" applies even though the action of the rescuer is deliberate and taken after some planning and consideration. Rescuers will not be absolved of all negligence if their actions are unreasonable under the circumstances. Cords v. Anderson, 80 Wis. 2d 525
, 259 N.W.2d 672
The negligence of a tortfeasor dismissed from a lawsuit on summary judgment as being less or equally negligent as the plaintiff can be considered by the jury in apportioning the total causal negligence of the remaining parties. Gross v. Midwest Speedways, Inc. 81 Wis. 2d 129
, 260 N.W.2d 36
Negligence per se arising out of a breach of a safety statute may be compared with common law negligence. Locicero v. Interpace Corp. 83 Wis. 2d 876
, 266 N.W.2d 423
Contributory negligence, if proved, is a defense in a strict liability case. Austin v. Ford Motor Co., 86 Wis. 2d 628
, 273 N.W.2d 233
In a safe place case, comparative negligence instructions need not direct the jury to consider the defendant's higher duty of care. Brons v. Bischoff, 89 Wis. 2d 80
, 277 N.W.2d 854
A motorist injured while fleeing the police was, as matter of law, more negligent than the pursuing officer. Brunette v. Employers Mutual Liability Insurance Co. 107 Wis. 2d 361
, 320 N.W.2d 43
(Ct. App. 1982).
Failure to give the jury an emergency instruction was reversible error, despite the plaintiff's violation of several safety statutes. When an emergency instruction is appropriate is discussed. Westfall v. Kottke, 110 Wis. 2d 86
, 328 N.W.2d 481