Abrogated Claim, No Jury Right: Wisconsin Upholds COVID-Era Health Care Immunity Under Article XIV, Section 13

1. Introduction

Savannah Wren v. Columbia St. Mary's Hospital Milwaukee, Inc. arises from tragic events during the early months of the COVID-19 pandemic. After Wisconsin’s March 12, 2020 emergency declaration, the Legislature enacted 2019 Wisconsin Act 185, creating WIS. STAT. § 895.4801, which provided time-limited civil immunity to health care professionals and providers for certain acts or omissions during the emergency and for 60 days thereafter.

Savannah Wren (individually and as representative of her child’s estate) sued Columbia St. Mary’s and related defendants for medical malpractice, wrongful death, and negligent infliction of emotional distress following a stillbirth in May 2020—squarely within the immunity window. The defendants moved to dismiss based on § 895.4801. Wren raised multiple constitutional objections; this Supreme Court review was expressly limited to one question: whether § 895.4801 is facially unconstitutional because it violates Article I, Section 5 of the Wisconsin Constitution (the state jury-trial guarantee).

2. Summary of the Opinion

Chief Justice Karofsky, writing for a unanimous Court, reversed the court of appeals. The Court held that § 895.4801 does not facially violate the Wisconsin constitutional right to a jury trial because:

• Article XIV, Section 13 empowers the Legislature to “alter or suspend” the common law, including by abrogating causes of action.
• Article I, Section 5 preserves the jury trial right only for “cases at law” (causes of action that exist and are cognizable).
• Once the Legislature suspends the cause of action, there is no “case at law” on which a jury-trial right can attach.

Accordingly, the Court concluded that the court of appeals erred by treating § 895.4801 as burdening a fundamental jury-trial right and by applying strict scrutiny. The case was remanded to the court of appeals to address any unresolved issues (including other constitutional theories not decided below).

3. Analysis

3.1 Precedents Cited

Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78

The Court cited Mayo for two key propositions: (1) the standard of review for a facial constitutional challenge is de novo; and (2) strict scrutiny applies when a statute violates a fundamental right. The Court invoked Mayo to position Wren’s argument (strict scrutiny) and then to explain why strict scrutiny never comes into play: the jury-trial right does not attach once the cause of action is abrogated.

Evers v. Marklein, 2025 WI 36

Evers v. Marklein supplied the demanding burden for facial challenges: Wren had to show § 895.4801 “cannot be enforced under any circumstances.” This framing matters because Wren was not merely arguing misapplication in her case; she sought to invalidate the statute in all applications on jury-trial grounds. The Court used Evers to underscore how difficult a facial attack is, especially where the asserted right is contingent on the existence of a viable claim.

Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98

Aicher anchored the Legislature’s authority under Article XIV, Section 13: “The legislature's authority includes the power to define and limit causes of action and to abrogate common law on policy grounds.” This is the doctrinal fulcrum of the opinion. By emphasizing legislative power to abrogate common-law claims, the Court treated § 895.4801 as a permissible suspension of liability during an emergency—thereby preventing the jury-trial right from attaching.

Vill. Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92

The Court cited Vill. Food & Liquor Mart for the meaning of “cases at law” in Article I, Section 5: it refers to causes of action for which a jury trial was guaranteed before the Wisconsin Constitution’s adoption. The case supports the Court’s conceptual sequence: first ask whether the cause of action exists; only then ask about the jury-trial entitlement.

Oliver v. Travelers Ins. Co., 103 Wis. 2d 644 (Ct. App. 1981)

Oliver provided the opinion’s key jury-trial maxim: “Absent a case at law, there is no right to a jury trial under Wis. Const. art I, § 5.” The Court used Oliver to reject the court of appeals’ strict-scrutiny approach and to justify ending the analysis once abrogation is established.

Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173 (1980) and Messner v. Briggs & Stratton Corp., 120 Wis. 2d 127 (Ct. App. 1984)

These worker’s compensation exclusivity cases supplied an analogy: when the Legislature eliminates common-law employer tort liability through the Worker’s Compensation Act, jury-trial challenges fail because there is no longer a common-law tort “case at law” against the employer. The Court treated § 895.4801 the same way: immunity operates as an abrogation/suspension of causes of action, so Article I, Section 5 is not implicated.

Wren v. Columbia St. Mary's Hosp. Milwaukee, Inc., 2025 WI App 22

The Supreme Court rejected the court of appeals’ reframing of the dispute as a burden on the “fundamental right to pursue a jury trial” requiring strict scrutiny. The Supreme Court’s central disagreement was structural: the appellate court treated immunity as an interference with the trial right, while the Supreme Court treated immunity as removing the underlying cause of action, thereby preventing the trial right from attaching at all.

3.2 Legal Reasoning

The Court’s reasoning proceeds in a strict order:

1. Identify the Legislature’s constitutional authority: Article XIV, Section 13 expressly permits the Legislature to alter or suspend the common law.
2. Characterize § 895.4801 as an exercise of that authority: the statute “suspends causes of action” against covered health care defendants during a defined time period and under defined conditions (good faith/substantial consistency with guidance; no reckless/wanton/intentional misconduct).
3. Apply the jury-trial clause only if a “case at law” exists: Article I, Section 5 preserves the jury trial right for “cases at law.” If the cause of action is abrogated, there is no cognizable case at law.
4. Conclude that scrutiny analysis is unnecessary on the jury-right question: because the right never attaches, § 895.4801 cannot “burden” that right, and strict scrutiny is inapposite for this claim.

The Court also rejected Wren’s attempt to distinguish worker’s compensation exclusivity on the ground that worker’s compensation provides an alternative remedy. The Court’s answer was doctrinal: those precedents did not turn on the adequacy of substitute remedies for jury-trial purposes; they turned on the absence of a “case at law” once the Legislature abrogates the common law claim.

The opinion’s operative rule is not “immunity is narrowly tailored,” but rather “abrogation means no jury-trial right attaches,” so the jury clause cannot invalidate the abrogation.

3.3 Impact

The decision establishes (and clarifies) a powerful structural limitation on jury-trial challenges in Wisconsin: when the Legislature validly suspends or abrogates a common-law cause of action under Article XIV, Section 13, Article I, Section 5 does not supply an independent basis to invalidate that legislative choice.

Likely consequences include:

• Reduced viability of facial jury-trial attacks on immunity statutes: The Court’s footnote underscores the broader landscape of statutory immunities (e.g., Good Samaritan, recreational immunity), suggesting the court of appeals’ strict-scrutiny approach would destabilize many long-standing enactments.
• Doctrinal channeling toward other constitutional theories: Plaintiffs challenging immunity/abrogation regimes may focus more on due process, equal protection, “right to remedy” arguments (where available), separation of powers, or vagueness/overbreadth—because the jury-trial clause is now clearly tethered to the existence of a viable cause of action.
• Legislative drafting signal: If the Legislature clearly frames an enactment as altering/suspending liability (and fits within constitutional bounds), it can more effectively insulate it from jury-trial-based invalidation.

Importantly, the Court did not resolve Wren’s other constitutional challenges; it remanded for further proceedings on remaining issues. Thus, the statute’s fate on other grounds (e.g., vagueness or federal constitutional claims) was not decided here.

4. Complex Concepts Simplified

Facial challenge

A facial challenge argues a statute is invalid in all its applications. Under Evers v. Marklein, the challenger must show the law “cannot be enforced under any circumstances”—a very high bar.

Abrogation/suspension of a cause of action

A “cause of action” is the legal claim that allows a person to sue for a remedy. If the Legislature “abrogates” (eliminates) or “suspends” (temporarily removes) that claim, the court treats it as no longer legally available—meaning the lawsuit cannot proceed on that theory.

“Right to trial by jury” vs. “right to a cause of action”

The Court drew a sharp boundary: Article I, Section 5 preserves a jury trial for qualifying “cases at law,” but it does not itself guarantee that a cause of action must exist. In other words, the jury-trial right is procedural (how qualifying claims are tried), not a guarantee that particular claims must remain available.

Strict scrutiny (and why it was not applied)

Strict scrutiny is a demanding test used when a law burdens a fundamental right. The court of appeals applied it because it believed § 895.4801 eliminated access to jury trials for a category of cases. The Supreme Court disagreed at the threshold: if the cause of action is abrogated, there is no jury-trial right to burden, so strict scrutiny is never triggered for the Article I, Section 5 claim.

5. Conclusion

Savannah Wren v. Columbia St. Mary's Hospital Milwaukee, Inc. clarifies a foundational ordering principle in Wisconsin constitutional law: the Legislature’s Article XIV, Section 13 authority to alter or suspend common-law causes of action can eliminate the predicate “case at law,” and without such a case, Article I, Section 5’s jury-trial guarantee does not attach.

The decision reverses the court of appeals’ strict-scrutiny invalidation of § 895.4801 on jury-trial grounds and reinforces that jury-trial protections, while “inviolate” for surviving “cases at law,” do not function as a constitutional lock on the Legislature’s power to redefine or suspend common-law liability— including through emergency-era immunity statutes.