Chapter 895

895.37 895.37 Abrogation of defenses in employee personal injury actions.

895.37(1) (1) In any action to recover damages for a personal injury sustained within this state by an employee while engaged in the line of the employee’s duty as an employee, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense:

895.37(1)(a) (a) That the employee either expressly or impliedly assumed the risk of the hazard complained of.

895.37(1)(b) (b) When such employer has at the time of the injury in a common employment 3 or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow servant.

895.37(1)(c) (c) When such employer has at the time of the injury in a common employment 3 or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of the injured employee, where such want of ordinary care was not willful.

895.37(2) (2) Any employer who has elected to pay compensation as provided in ch. 102 shall not be subject to this section.

895.37(3) (3) Subsection (1) (a), (b) and (c) shall not apply to farm labor, except such farm labor as is subject to ch. 102.

895.37(4) (4) No contract, rule, or regulation, shall exempt the employer from this section.

895.37 History History: 1993 a. 486; 2005 a. 155.

895.37 Annotation The fellow servant defense is not available to a farm employer of a child employed in violation of child labor laws. Tisdale v. Hasslinger, 79 Wis. 2d 194, 255 N.W.2d 314 (1977).

895.375 895.375 Abrogation of defense that contract was champertous. No action, special proceeding, cross complaint or counterclaim in any court shall be dismissed on the ground that a party to the action is a party to a contract savoring of champerty or maintenance unless the contract is the basis of the claim pleaded.

895.42 895.42 Deposit of undistributed money and property by personal representatives and others.

895.42(1) (1) 

895.42(1)(a) (a) In this subsection, “trust company” means any trust company or any state or national bank in this state that is authorized to exercise trust powers.

895.42(1)(b) (b) If in any proceeding in any court of record it is determined that moneys or other personal property in the custody of or under the control of any personal representative, trustee, receiver, or other officer of the court, belongs to a natural person if the person is alive, or to an artificial person if it is in existence and entitled to receive, and otherwise to some other person, and the court finds any of the following, the court may direct the officer having custody or control of the money or property to deposit the money or property with any trust company:

895.42(1)(b)1. 1. That there is not sufficient evidence showing that the natural person first entitled to take is alive, or that the artificial person is in existence and entitled to receive.

895.42(1)(b)2. 2. That the money or other personal property, including any legacy or share of intestate property, cannot be delivered to the person entitled to the money or property because the person is a member of the military or naval forces of the United States or any of its allies or is engaged in any of the armed forces abroad or with the American Red Cross society or other body or similar business.

895.42(1)(c) (c) Any officer depositing money or property with a trust company under par. (b), shall take the trust company’s receipt for the deposit. The receipt shall, to the extent of the deposit, constitute a complete discharge of the officer in any accounting made by the officer in the proceeding.

895.42(2) (2) In case such deposit is directed to be made, the court shall require the trust company or bank in which said deposit is ordered to be made, as a condition of the receipt thereof, to accept and handle, manage and invest the same as trust funds to the same extent as if it had received the same as a testamentary trust, unless the court shall expressly otherwise direct, except that the reports shall be made to the court of its appointment.

895.42(3) (3) No distribution of the moneys or personal property so deposited shall be made by the depository as such trustee or otherwise without an order of the court on notice as prescribed by s. 879.03, and the jurisdiction of the court in the proceeding will be continued to determine, at any time at the instance of any party interested, the ownership of said funds, and to order their distribution.

895.42 History History: 1973 c. 90; 1993 a. 486; 2001 a. 102; 2005 a. 149.

895.43 895.43 Intentional killing by beneficiary of contract. The rights of a beneficiary of a contractual arrangement who kills the principal obligee under the contractual arrangement are governed by s. 854.14.

895.43 History History: 1981 c. 228; 1987 a. 222; 1997 a. 188.

895.435 895.435 Intentional killing by beneficiary of certain death benefits. The rights of a beneficiary to receive benefits payable by reason of the death of an individual killed by the beneficiary are governed by s. 854.14.

895.435 History History: 1981 c. 228; 1987 a. 222; 1997 a. 188.

895.441 895.441 Sexual exploitation by a therapist; action for.

895.441(1) (1) Definitions. In this section:

895.441(1)(a) (a) “Physician” has the meaning designated in s. 448.01 (5).

895.441(1)(b) (b) “Psychologist” means a person who practices psychology, as described in s. 455.01 (5).

895.441(1)(c) (c) “Psychotherapy” has the meaning designated in s. 455.01 (6).

895.441(1)(d) (d) “Sexual contact” has the meaning designated in s. 940.225 (5) (b).

895.441(1)(e) (e) “Therapist” means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

895.441(2) (2) Cause of action.

895.441(2)(a) (a) Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, counseling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact. Consent is not an issue in an action under this section, unless the sexual contact that is the subject of the action occurred more than 6 months after the psychotherapy, counseling, assessment or treatment ended.

895.441(2)(b) (b) Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1) and 815.05 (1g) (a), in an action brought under this section, the plaintiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff’s attorney shall supply the court the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.

895.441(2)(c) (c) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect:

895.441(2)(c)1. 1. A plaintiff who is using initials in an action under this section from annoyance, embarrassment, oppression or undue burden that would arise if any information identifying the plaintiff were made public.

895.441(2)(c)2. 2. A plaintiff in an action under this section from unreasonably long, repetitive or burdensome physical or mental examinations.

895.441(2)(c)3. 3. The confidentiality of information which under law is confidential, until the information is provided in open court in an action under this section.

895.441(3) (3) Punitive damages. A court or jury may award punitive damages to a person bringing an action under this section.

895.441(4) (4) Calculation of statute of limitations. An action under this section is subject to s. 893.585.

895.441(5) (5) Silence agreements. Any provision in a contract or agreement relating to the settlement of any claim by a patient against a therapist that limits or eliminates the right of the patient to disclose sexual contact by the therapist to a subsequent therapist, the department of safety and professional services, the department of health services, the injured patients and families compensation fund peer review council, or a district attorney is void.

895.441 History History: 1985 a. 275; 1987 a. 352; 1991 a. 160, 217; 1995 a. 27 s. 9126 (19); 1999 a. 85; 2003 a. 111; 2005 a. 155 s. 62; Stats. 2005 s. 895.441; 2007 a. 20 s. 9121 (6) (a); 2011 a. 32.

895.441 Annotation Under sub. (2), consent is not an issue, and, as such, an instruction regarding the victim’s contributory negligence was improper. Block v. Gomez, 201 Wis. 2d 795, 549 N.W.2d 783 (Ct. App. 1996), 94-1085.

895.441 Annotation This section grants no cause of action against a therapist’s employer. L.L.N. v. Clauder, 203 Wis. 2d 570, 552 N.W.2d 879 (Ct. App. 1996), 95-2084.

895.441 Annotation Reversed on other grounds. 209 Wis. 2d 674, 563 N.W.2d 434 (1997), 95-2084.

895.442 895.442 Sexual exploitation by a member of the clergy; action for.

895.442(1) (1) Definitions. In this section:

895.442(1)(a) (a) “Member of the clergy” has the meaning given in s. 48.981 (1) (cx).

895.442(1)(b) (b) “Religious organization” means an association, conference, congregation, convention, committee, or other entity that is organized and operated for a religious purpose and that is exempt from federal income tax under 26 USC 501 (c) (3) or (d) and any subunit of such an association, conference, congregation, convention, committee, or entity that is organized and operated for a religious purpose.

895.442(1)(c) (c) “Sexual contact” has the meaning given in s. 940.225 (5) (b).

895.442(2) (2) Cause of action.

895.442(2)(a) (a) Any person who suffers an injury as a result of sexual contact with a member of the clergy that occurs while the person is under the age of 18 may bring an action against the member of the clergy for all damages caused by that sexual contact.

895.442(2)(b) (b) Any person who may bring an action under par. (a) may bring an action against the religious organization that employed the member of the clergy for all damages caused by that sexual contact if, at the time that the sexual contact occurred, another employee of that religious organization whose duties included supervising that member of the clergy knew or should have known that the member of the clergy previously had sexual contact with a person under the age of 18 and failed to do all of the following:

895.442(2)(b)1. 1. Report that sexual contact under s. 48.981 (3).

895.442(2)(b)2. 2. Exercise ordinary care to prevent similar incidents from occurring.

895.442(2)(c) (c) Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1), and 815.05 (1g) (a), in an action brought under this section, the plaintiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff’s attorney shall supply the court the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.

895.442(2)(d) (d) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect any of the following:

895.442(2)(d)1. 1. A plaintiff who is using initials in an action under this section from annoyance, embarrassment, oppression, or undue burden that would arise if any information identifying the plaintiff were made public.

895.442(2)(d)2. 2. A plaintiff in an action under this section from unreasonably long, repetitive, or burdensome physical or mental examinations.

895.442(2)(d)3. 3. The confidentiality of information which under law is confidential, until the information is provided in open court in an action under this section.

895.442(3) (3) Consent. Consent is not an issue in an action under this section.

895.442(4) (4) Calculation of statute of limitations. An action under this section is subject to s. 893.587.

895.442(5) (5) Silence agreements. Any contract or agreement concerning the settlement of any claim under this section that limits or eliminates the right of the injured person to disclose the sexual contact described under sub. (2) to another member of the religious organization to which the member of the clergy under sub. (2) belongs, to a therapist, as defined in s. 895.441 (1) (e), to a person listed under s. 48.981 (2) (a), or to a district attorney, is void.

895.442 History History: 2003 a. 279; 2005 a. 155 s. 63; Stats. 2005 s. 895.442.

895.443 895.443 Physical injury, emotional distress, loss or damage suffered by members of certain groups; action for.

895.443(1) (1) If a person suffers physical injury to his or her person or emotional distress or damage to or loss of his or her property by reason of conduct that is prohibited under s. 943.012 and that causes damage to any property specified in s. 943.012 (1) to (4) or by reason of conduct that is grounds for a penalty increase under s. 939.645 (1), the person has a civil cause of action against the person who caused the physical injury, emotional distress, damage or loss.

895.443(2) (2) The burden of proof in a civil action under sub. (1) rests with the person who suffers the physical injury, emotional distress, damage or loss to prove his or her case by a preponderance of the credible evidence.

895.443(3) (3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover special and general damages, including damages for emotional distress; punitive damages; and costs, including all reasonable attorney fees and other costs of the investigation and litigation which were reasonably incurred.

895.443(4) (4) A person may bring a civil action under sub. (1) regardless of whether there has been a criminal action related to the physical injury, emotional distress, loss or damage under sub. (1) and regardless of the outcome of any such criminal action.

895.443(5) (5) This section does not limit the right of a person to recover from any parent or parents under s. 895.035.

895.443 History History: 1987 a. 348; 2003 a. 243; 2005 a. 155 s. 65; Stats. 2005 s. 895.443.

895.444 895.444 Injury caused by criminal gang activity; action for.

895.444(1) (1) Definitions. In this section:

895.444(1)(a) (a) “Criminal gang” has the meaning given in s. 939.22 (9).

895.444(1)(b) (b) “Criminal gang activity” has the meaning given in s. 941.38 (1) (b).

895.444(1)(c) (c) “Political subdivision” means a city, village, town or county.

895.444(2) (2) Civil cause of action.

895.444(2)(a) (a) The state, a school district or a political subdivision may bring an action in circuit court for any expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources if the expenditure of money by the state, a school district or a political subdivision is the result of criminal gang activity.

895.444(2)(b) (b) Any person who suffers physical injury or incurs property damage or loss resulting from any criminal gang activity has a cause of action for the actual damages sustained. The burden of proof in a civil action under this paragraph rests with the person who suffers the physical injury or property damage or loss to prove his or her case by a preponderance of the credible evidence.

895.444(2)(c) (c) The action may be brought against the criminal gang or against any member, leader, officer or organizer of a criminal gang who participates in a criminal gang activity or who authorizes, causes, orders, ratifies, requests or suggests a criminal gang activity. An action brought under this subsection shall also name as defendants the criminal gang and any criminal gang members that participated in the criminal gang activity. An action brought under this subsection may name, as a class of defendants, all unknown criminal gang members.

895.444(2)(d) (d) The plaintiff may bring a civil action under this subsection regardless of whether there has been a criminal action related to the injury, property damage or loss or expenditure of money under par. (a) or (b) and regardless of the outcome of that criminal action.

895.444(3) (3) Service of process. A summons may be served individually upon any member, leader, officer or organizer of a criminal gang by service as provided under s. 801.11 (1), (2), (5) or (6) where the claim sued upon arises out of or relates to criminal gang activity within this state sufficient to subject a defendant to personal jurisdiction under s. 801.05 (2) to (10). A judgment rendered after service under this subsection is a binding adjudication against the criminal gang.

895.444(4) (4) Injunctive relief, damages, costs and fees.

895.444(4)(a) (a) The court, upon the request of the state, a school district or a political subdivision, may grant an injunction restraining an individual from committing an act that would injure the state, a school district or a political subdivision or may order such other relief as the court determines is proper.

895.444(4)(b) (b) The court may order a criminal gang member to divest himself or herself of any interest or involvement in any criminal gang activity and may restrict a criminal gang member from engaging in any future criminal gang activity.

895.444(4)(c) (c) In addition to the costs allowed under s. 814.04, a final judgment in an action under sub. (2) (a) in favor of the plaintiff shall include compensatory damages for the expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources caused by the criminal gang activity and compensation for the costs of the investigation and prosecution and reasonable attorney fees.

895.444(4)(d) (d) In addition to the costs allowed under s. 814.04, a final judgment in an action under sub. (2) (b) in favor of the plaintiff shall include attorney fees and the costs of the investigation and litigation.

895.444(4)(e) (e) The final judgment in favor of the plaintiff in an action under sub. (2) (a) or (b) may include punitive damages assessed against a criminal gang leader, officer, organizer or member who is found to have participated in criminal gang activity.