Wisconsin Statutes

Wis. Stat. § 895.03 (2026)

Recovery for death by wrongful act

✓ current as of July 2026

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895.03895.03 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 AnnotationA 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 AnnotationIt 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 AnnotationA 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 AnnotationThis 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 AnnotationThis 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 AnnotationThe 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 AnnotationThe 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.

Notes of Decisions

Cited in 67 cases (16 in the last 5 years), 1967–2026 · leading case: Sharon R. Waranka v. Wadena Ins. Co., 2014 WI 28 (Wis. 2014).

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Sharon R. Waranka v. Wadena Ins. Co., 2014 WI 28 (Wis. 2014). · cites it 89× “04 (2011-12) 2 must be read together with the wrongful death statute, Wis. Stat. § 895.03 , and because the latter expressly provides that it does not apply to deaths caused out of state, the Wisconsin wrongful death damage limitations do not apply.”

Hailey Marie-Joe Force v. Am. Fam. Mut. Ins. Co., 2014 WI 82 (Wis. 2014). · cites it 40× “We conclude that in order to avoid an absurd, unreasonable result contrary to the legislative purposes of the wrongful death statutes, Wis. Stat. §§ 895.03 and 895.04(2), we construe the statutes under the unique facts of the instant case to allow the minor children to recover…”

Est. of Genrich v. OHIC Ins. Co., 2009 WI 67 (Wis. 2009). · cites it 38× “¶ 26 Kathy cites to the wrongful death statute, Wis. Stat. § 895.03 , for the proposition that a wrongful death claim cannot be brought until there is a death.”

Donald Christ v. Exxon Mobil Corp., 2015 WI 58 (Wis. 2015). · cites it 31× “See also Wis. Stat. § 895.03 . If the decedent would have been barred from making a claim, the decedent's statutory beneficiary also would be barred.”

Miller v. Luther, 489 N.W.2d 651 (Wis. Ct. App. 1992). · cites it 23× “Luther claims that Miller's action is barred by (1) the wrongful death entitlement statute, sec. 895.03, Stats., (2) the medical malpractice statute of limitation, sec.”

Shannon E. T. v. Alicia M. V.M., 2007 WI 29 (Wis. 2007). · cites it 12× “2d 107 (1967), in which this court concluded that the term "person" in the wrongful death statute, Wis. Stat. § 895.03 (1965), 5 includes a viable fetus.”

Bartholomew v. Wisconsin Patients Comp. Fund & Compcare Health Servs. Ins., 2006 WI 91 (Wis. 2006). · cites it 4× “This opinion turns now to discuss claims for wrongful death, that is, claims for noneconomic damages for postdeath loss of society and companionship, Wis. Stat. §§ 895.03 and 895.04, and other claims relating to the death of a tort victim.”

Atkins v. Swimwest Fam. Fitness Ctr., 2005 WI 4 (Wis. 2005). · cites it 6× “Under Wisconsin law, a wrongful death action may be brought under such circumstances "as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages.”

Tesar v. Anderson, 2010 WI App 116 (Wis. Ct. App. 2010). · cites it 10× “American Family recognizes, as it must, that a viable fetus is a "person" for the purpose of the wrongful death statute, Wis. Stat. § 895.03 , and that its parents may bring a wrongful death action where the defendant is alleged to be an automobile driver whose negligence caused…”

Waranka v. Wadena Ins., 2013 WI App 56 (Wis. Ct. App. 2013). · cites it 43× “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…”

Pierce v. Physicians Ins. Co. of Wisconsin, Inc., 2005 WI 14 (Wis. 2005). · cites it 4× “03 ; now Wis. Stat. § 895.03 ). Kwaterski, 34 Wis.”

Wangen v. Ford Motor Co., 294 N.W.2d 437 (Wis. 1980). · cites it 2× “, provides: "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…”

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