893.16 Person under disability.

677 words·~3 min read·/wi/chapter-893/893-16-9

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(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.

893.16 Note 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:

893.16 Note

(a)The period within which to sue after the period of disability ends is reduced from 5 years to 2 years.

893.16 Note

(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.

893.16 Note

(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).

893.16 Note Other changes include:

893.16 Note

(a)A specific provision provides that no limitation period is shortened by the application of this section. This represents no substantive change.

893.16 Note

(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.

893.16 Note

(c)The period within which to sue provided in previous s. 893.33 has been increased from one year to 2 years.

893.16 Note To illustrate some of the effects of these revisions:

893.16 Note

(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.

893.16 Note

(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]