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Walberg v. St. Francis Home, Inc. 281 Wis.2d 99, 697 N.W.2d 36)

elderly-abuse-neglect-wisconsin-nursing-home-300x200Articles: Wisconsin

Walberg v. St. Francis Home, Inc. 281 Wis.2d 99, 697 N.W.2d 36)

Walberg v. St. Francis Home, Inc. 281 Wis.2d 99, 697 N.W.2d 36)
Plaintiff (Appellee) – Julie Walberg, as Special Administrator for the Estate of Lucille Yox (Deceased)
Defendant (Appellant) – St. Francis Home, Inc.
Supreme Court of Wisconsin (2005)

On August 12, 2002, Julie Walberg, as Special Administrator for the Estate of Lucille Yox filed suit against St. Francis Home alleging negligence and breach of contract. St. Francis Home filed a motion to dismiss based on statute of limitations. The trial court granted St. Francis Home’s motion. Walberg appealed.


Between March 29, 2994 and December 3, 1996, Lucille Yox was a resident of St. Francis Home. From the time she arrived at St. Francis Home to the time she died on August 15, 2000, Lucille suffered from Alzheimer’s disease, which, according to Wis. Stat. § 893.16, constituted a “mental illness.”

On August 12, 2002, Julie Walberg was appointed Special Administrator for Lucille’s estate. On that same day, Julie filed suit against St. Francis Home for negligence and breach of contract based on her care while a resident at the home.

St. Francis Home filed a motion to dismiss, arguing that the suit was barred by a 1 year statute of limitations that would have expired on August 15, 2001, 1 year after Lucille’s death. They relied on Wis. Stat. § 893.22. Walberg argued that Wis. Stat. § 893.16 applied, allowing for a 2- year statute of limitations.


The trial court found that Wis. Stat. § 893.22 applied, granting St. Francis Home’s motion to dismiss.


1)     Did the trial court err in ruling that the 1- year statute of limitations applied?

2)     Did Lucille’s mental disability cease on the date of her death for the purposes of statute of limitations applicable to suit by person under disability?

3)     Was administrator required to commence contract action within two years of Lucille’s death and cessation of her disability?


1)     Yes

2)     Yes

3)     No

The application of Wis. Stat. § 893.22 specifies three preconditions in order to be applied:

(1)   A person dies; (2) before the expiration of the time limited for the commencement of an action; and (3) the cause of action survives the person’s death.

  • Curran v. Witter, 68 Wis. 16, 31 N.W. 705

Because death ceased the disability on August 15, 2000, pursuant to § 893.16(1), Walberg had until August 15, 2002, to commence the negligence action on behalf of Lucille.

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