Wis. Stat. § 895.01

Current through Acts 2023-2024, ch. 272

Section 895.01 - What actions survive; actions not to abate

(1)

(am) In addition to the causes of action that survive at common law, all of the following also survive:

1. Causes of action to determine paternity.

2. Causes of action for the recovery of personal property or the unlawful withholding or conversion of personal property.

3. Causes of action for the recovery of the possession of real estate and for the unlawful withholding of the possession of real estate.

4. Causes of action for assault and battery.

5. Causes of action for false imprisonment.

6. Causes of action for invasion of privacy.

7. Causes of action for a violation of s. 968.31(2m) or other damage to the person.

8. Causes of action for all damage done to the property rights or interests of another.

9. Causes of action for goods taken and carried away.

10. Causes of action for damages done to real or personal estate.

11. Equitable actions to set aside conveyances of real estate.

12. Equitable actions to compel a reconveyance of real estate.

13. Equitable actions to quiet the title to real estate.

14. Equitable actions for specific performance of contracts relating to real estate.

(bm) Causes of action for wrongful death shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death of the injured person.

(2) An action does not abate by the occurrence of any event if the cause of action survives or continues.

Wis. Stat. § 895.01

Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975), 771; 1977 c. 176; 1987 a. 399; 1993 a. 481; 1999 a. 85; 2007 a. 101.

Punitive damages incident to damages for the pain and suffering of a decedent may be awarded to the estate. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980). A paternity action may not be brought against a deceased putative father. Paternity of N.L.B., 140 Wis. 2d 400, 411 N.W.2d 144 (Ct. App. 1987). A claim for loss of enjoyment of life caused by professional negligence of mental health professionals survived the death of the alleged victim. Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999), 97-1969. A survival claim accrues when, with reasonable diligence, the decedent should have discovered the claim, but no later than the date of death. Estate of Merrill v. Jerrick, 231 Wis. 2d 546, 605 N.W.2d 645 (Ct. App. 1999), 99-0787. 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, 04-3252. Under sub. (1) (o) [now sub. (1) (bm)] and s. 895.04(2), a wrongful death claim does not survive the death of the claimant. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05-2315. Survival claims accrue on the date the injury is discovered or with reasonable diligence should be discovered by either the decedent or an appropriate third party, often the decedent's personal representative, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12-1493. Actions under ss. 551.41 and 551.59 survive the death of the wrongdoer. Continental Assurance Co. v. American Bankshares Corp., 483 F. Supp. 175 (1980).