895.01 Annotation 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).

895.01 Annotation A paternity action may not be brought against a deceased putative father. N.L.B. v. G.B., 140 Wis. 2d 400, 411 N.W.2d 144 (Ct. App. 1987).

895.01 Annotation 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.

895.01 Annotation 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.

895.01 Annotation 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. Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

895.01 Annotation 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.

895.01 Annotation 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.

895.01 Annotation 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).

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.