2023 Wisconsin Statutes & Annotations › Chapter 893 - Limitations of commencement of actions and proceedings; procedure for claims against governmental units. › 893.16 - Person under disability.

893.16
Person under disability.
(1)
If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.
(2)
Subsection (1) does not shorten a period of limitation otherwise prescribed.
(3)
A disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues.
(4)
When 2 or more disabilities coexist at the time the cause of action accrues, the 2-year period specified in sub. (1) does not begin until they all are removed.
(5)
This section applies only to statutes in this chapter limiting the time for commencement of an action or assertion of a defense or counterclaim except it does not apply to:
(a)
Actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for escape;
(b)
Extend the time limited by s. 893.33, 893.41, 893.59, 893.62, 893.73 to 893.76, 893.77 (3), 893.86 or 893.91 or subch. VIII for commencement of an action or assertion of a defense or counterclaim; or
(c)
A cause of action which accrues prior to July 1, 1980.
History:  1979 c. 323; 1997 a. 133.
Judicial Council Committee's Note, 1979: This section is based on present ss. 893.135, 893.33, 893.37 and 893.38. Previous ss. 893.135 and 893.33 stated that the time of disability is not counted as the running of a statute of limitation and further stated that an action could be brought within a specified time after the disability ceased. This is inherently inconsistent and is replaced in s. 893.16 by the simple provision that the action may be commenced within 2 years after the disability ceases. Changes from previous s. 893.135 are:
(a) The period within which to sue after the period of disability ends is reduced from 5 years to 2 years.
(b) The maximum extension time available to those under disability of insanity or imprisonment is limited to 5 years. This means that such individuals must sue within 5 years after the basic applicable statute of limitations would have run against one not under disability, or within 2 years after the disability ends, whichever period is shorter.
(c) The phrase in previous s. 893.135, “at the time such title shall first descend or accrue" is changed to “at the time the cause of action accrues," and this is reinforced by subsection (3). Despite appearances, this represents no change in substance because of the decision in Swearingen v. Roberts, 39 Wis. 462 (1876).
Other changes include:
(a) A specific provision provides that no limitation period is shortened by the application of this section. This represents no substantive change.
(b) In view of the 5-year extension provision reasons for excluding those imprisoned for life from the benefits of the disability provision disappear and the exclusion has been dropped.
(c) The period within which to sue provided in previous s. 893.33 has been increased from one year to 2 years.
To illustrate some of the effects of these revisions:
(a) If a statute of limitation has run on a cause of action of a minor for a personal injury the minor would have one year to commence an action after attaining age 18 under previous s. 893.33. Under s. 893.16 the minor has 2 years to commence an action after attaining age 18.
(b) If a minor has a cause of action affecting title to real estate and the statute of limitation has run the minor has 5 years to commence an action after attaining age 18 under previous s. 893.135. Under s. 893.16 the minor has 2 years to commence the action. [Bill 326-A]
Sub. (1) is effective to toll the running of a statute of limitations even when, under s. 893.07, the plaintiff would be barred from bringing suit under applicable foreign law. Scott v. First State Insurance Co., 155 Wis. 2d 608, 456 N.W.2d 152 (1990).
If a party wishes the benefit of the disability tolling statute, then the party does not get the benefit of the discovery rule. Kilaab v. Prudential Insurance Co. of America, 198 Wis. 2d 699, 543 N.W.2d 538 (Ct. App. 1995).
Injury from intentional acts of sexual assault against minors and the cause of any injury should have been discovered, as a matter of law, at the time of the assaults. A claim of repressed memory does not indefinitely toll the statute of limitations regardless of the victim's minority or the position of trust occupied by the alleged perpetrator. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997), 94-0423.
Parents' claims for injury resulting from the sexual assault of their child accrue when the child's claims accrue, regardless of when the parents learn of their claim. Joseph W. v. Catholic Diocese of Madison, 212 Wis. 2d 925, 569 N.W.2d 795 (Ct. App. 1997), 96-2220.
Under sub. (1), “mental illness" is a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them. Legal consultation and filings are probative of a plaintiff's mental health and functional ability to appreciate and act upon the plaintiff's legal rights. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139.
Death constitutes a cessation of disability under this section. Walberg v. St. Francis Home, Inc., 2005 WI 64, 281 Wis. 2d 99, 697 N.W.2d 36, 03-2164.
This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307.
Storm, 2003 WI 120, does not stand for the proposition that sub. (1) tolls the three-year period of limitation under s. 893.555 (2) (a) when a claimant survives one month after an injury. Rather, the Storm court's use of the term “toll" reflects the practical effect of sub. (1) under circumstances in which a claimant's disability never ceases. In that event, a period of limitation is never triggered by the cessation of the claimant's disability, and the underlying period of limitation can be effectively “tolled" for up to five years. In contrast, in this case in which the decedent's disability ceased upon death one month after the injury, the two-year period of limitation in sub. (1) was not triggered, and, pursuant to sub. (2), the otherwise applicable three-year period of limitation in s. 893.555 (2) (a) applied and was not tolled. Estate of Cohen v. Trinity Health Management, LLC, 2022 WI App 26, 402 Wis. 2d 220, 975 N.W.2d 293, 21-1195.
A prisoner is entitled to the tolling provision under sub. (1) when bringing a 42 USC 1983 action. Hardin v. Straub, 490 U.S. 536, 109 S. Ct. 1998, 104 L. Ed. 2d 582 (1989).