895.485 Civil liability exemption; out-of-home care providers and child-placing agencies.

(1) Definitions. In this section:

(ag) “Age or developmentally appropriate activities" has the meaning given in s. 48.02 (1dm).

(b) “Foster home" has the meaning given in s. 48.02 (6).

(c) “Out-of-home care provider" has the meaning given in s. 48.02 (12r).

(d) “Reasonable and prudent parent standard" has the meaning given in s. 48.02 (14r).

(2) Foster parents; liability exemption. Except as provided in ss. 167.10 (7) and 343.15 (2), any foster parent licensed under s. 48.62 is immune from civil liability for any of the following:

(a) An act or omission of the foster parent while that parent is acting in his or her capacity as a foster parent.

(b) An act or omission of a child who is placed in a foster home while the child is in the foster parent's care.

(3) Foster parents; exceptions to liability exemption. The immunity specified in sub. (2) does not apply if the act or omission of a foster parent was not done in good faith or was not in compliance with any written instructions received from the agency that placed the child regarding specific care and supervision of the child. The good faith of a foster parent and the compliance of the foster parent with any written instructions received from the agency that placed the child are presumed in a civil action. Any person who asserts that a foster parent did not act in good faith, or did not comply with written instructions received from the agency that placed the child, has the burden of proving that assertion.

(4) Child-placing agencies; liability exemption; exceptions. Any agency that acts in good faith in placing a child with a foster parent is immune from civil liability for any act or omission of the agency, the foster parent, or the child unless all of the following occur:

(a) The agency has failed to provide the foster parent with any information relating to a medical, physical, mental, or emotional condition of the child that the agency is required to disclose under this paragraph. The department of children and families shall promulgate rules specifying the kind of information that an agency shall disclose to a foster parent that relates to a medical, physical, mental, or emotional condition of the child.

(b) Bodily injury to the child or any other person or damage to the property of the child or any other person occurs as a direct result of the failure under par. (a).

(5) Out-of-home care providers; liability exemption. Except as provided in ss. 167.10 (7) and 343.15 (2), an out-of-home care provider who grants permission for a child in the care of the out-of-home care provider to participate in an age or developmentally appropriate activity is immune from civil liability for any act or omission of the out-of-home care provider in granting that permission if in granting that permission the out-of-home care provider applied the reasonable and prudent parent standard in accordance with the requirements of ss. 48.383 (1) and 938.383 (1) and the rules promulgated under ss. 48.383 (3) and 938.383 (3). The immunity provided under this subsection applies only to the decision granting that permission itself and does not extend to any other act or omission of the out-of-home care provider, including any act or omission relating to the out-of-home care provider's duty to comply with any provision of licensure under s. 48.70, rule promulgated under s. 48.67, or any other statute, rule, or regulation that is applicable to the out-of-home care provider's duty to protect the health, safety, and welfare of the child. The immunity provided under this subsection does not affect any immunity from, limitation on, or defense to liability that is available under any other statute or the common law.

(6) Out-of-home care providers; liability exemption; presumptions. An out-of-home care provider who grants permission for a child in the care of the out-of-home care provider to participate in an age or developmentally appropriate activity is presumed to have applied the reasonable and prudent parent standard in granting that permission. Any person who asserts that an out-of-home care provider did not apply the reasonable and prudent parent standard in granting that permission has the burden of proving that assertion.

History: 1987 a. 377; 1989 a. 31; 1993 a. 446; 1995 a. 27 s. 9126 (19); 2007 a. 20; 2009 a. 28; 2015 a. 128.

NOTE: 1987 Wis. Act 377 contains a prefatory note explaining the act.

Foster parents are not agents of the county for purposes of tort liability. Kara B. v. Dane County, 198 Wis. 2d 24, 542 N.W.2d 777 (Ct. App. 1995), 94-1081. See also Estate of Cooper v. Milwaukee County, 103 F. Supp. 2d 1124 (2000).