Wisconsin § 895.03 - Recovery for death by wrongful act.

§ 895.03. Recovery for death by wrongful act.

Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state. 895.03 Annotation A complaint alleging that the defendant shot the plaintiff’s husband and that the shooting was wrongful was sufficient to state a cause of action. Kelly v. Mohrhusen, 50 Wis. 2d 337 , 184 N.W.2d 149 (1971). 895.03 Annotation It is sufficient if the death was caused by a wrongful act, neglect, or default in this state. It is not necessary that the death occur in the state. The statute includes cases dealing with breach of warranty arising out of contract. Schnabl v. Ford Motor Co., 54 Wis. 2d 345 , 195 N.W.2d 602 (1972). 895.03 Annotation A decedent must have had an actionable claim for damages at the time of death for a wrongful death cause of action to exist. If the statute of limitations would have barred the decedent from bringing a medical malpractice action, had the decedent lived, a wrongful death action based on the alleged malpractice is also barred. Miller v. Luther, 170 Wis. 2d 429 , 489 N.W.2d 651 (Ct. App. 1992). 895.03 Annotation This section does not provide when a claim for damages due to wrongful death accrues, or when it must be brought, or when it will be lost. A derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice, s. 893.55, rather than the general wrongful death statute of limitations, s. 893.54, and accrues on the same date as the medical negligence action on which it is based—the date of injury, not the date of death. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67 , 318 Wis. 2d 553 , 769 N.W.2d 481 , 07-0541 . 895.03 Annotation This section says nothing about who can bring a wrongful death claim, or who the defendants can be. The statute only permits the representative of a deceased to maintain an action the deceased could have maintained had the deceased lived. It did not prevent the father of a fetus killed in a car accident from suing the insurer of the fetus’s mother. Tesar v. Anderson, 2010 WI App 116 , 329 Wis. 2d 240 , 789 N.W.2d 351 , 09-1993 . 895.03 Annotation The cause of action authorized under this section 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 this section and another state’s wrongful death statute applies, the terms and limitations in s. 895.04 do not apply. Waranka v. Wadena Insurance Co., 2014 WI 28 , 353 Wis. 2d 619 , 847 N.W.2d 324 , 12-0320 . 895.03 Annotation The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58 , 362 Wis. 2d 668 , 866 N.W.2d 602 , 12-1493 .