Chapter 895

895.04 Annotation This section does not permit an estate to recover, on its own behalf, damages for the decedent’s pecuniary loss. Weiss v. Regent Properties, Ltd., 118 Wis. 2d 225, 346 N.W.2d 766 (1984).

895.04 Annotation Recovery under sub. (7) is barred by s. 895.045 if a decedent’s negligence is greater than any individual tortfeasor’s. Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 387 N.W.2d 751 (1986).

895.04 Annotation A spouse’s claim under sub. (4) for loss of society and companionship is additional to a common law claim for loss of consortium prior to the death of the deceased. Kottka v. PPG Industries, Inc., 130 Wis. 2d 499, 388 N.W.2d 160 (1986).

895.04 Annotation A person who “feloniously and intentionally” kills the person’s spouse is not a surviving spouse for purposes of sub. (2) and is treated as having predeceased the decedent. Steinbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988).

895.04 Annotation “Pecuniary injury” under sub. (4) includes the loss of any benefit, including social security disability benefits, that a plaintiff would have received from the decedent. Estate of Holt v. State Farm Fire & Casualty Co., 151 Wis. 2d 455, 444 N.W.2d 453 (Ct. App. 1989).

895.04 Annotation This section is inapplicable in medical malpractice actions. There is no cause of action in an adult child for the loss of society and companionship of a parent. Dziadosz v. Zirneski, 177 Wis. 2d 59, 501 N.W.2d 828 (Ct. App. 1993).

895.04 Annotation The damage limitation under sub. (4) is inapplicable to medical malpractice actions in which death results. Sub. (2) does not prevent a minor from bringing an action for a loss of companionship when malpractice causes a parent’s death, including when the decedent is survived by a spouse. Jelinek v. St. Paul Fire & Casualty Insurance Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994).

895.04 Annotation Although only one parent was the named insured under an uninsured motorist insurance policy paying benefits for the wrongful death of the parents’ child, this section required payment of the proceeds to both parents. Bruflat v. Prudential Property & Casualty Insurance Co., 2000 WI App 69, 233 Wis. 2d 523, 608 N.W.2d 371, 99-2049.

895.04 Annotation Retroactive increases in the statutory damage limits were unconstitutional. Neiman v. American National Property & Casualty Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160, 99-2554. See also Schultz v. Natwick, 2002 WI 125, 257 Wis. 2d 19, 653 N.W.2d 266, 00-0361.

895.04 Annotation Sub. (4) does not: 1) nullify the state constitutional right to have a jury assess damages under article I, section 5, of the Wisconsin Constitution; 2) violate separation of powers principles by blurring the boundaries between judicial and legislative branches; 3) violate constitutional equal protection guarantees; and 4) violate substantive due process. Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, 00-0072.

895.04 Annotation Partially overruled on other grounds. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.

895.04 Annotation The rule that one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole is applicable in wrongful death actions. Wrongful death plaintiffs are entitled to be made whole for their losses, but not more than whole. To the extent that wrongful death plaintiffs receive a portion of damages for expenses they have not incurred after having been made whole, they have been unjustly enriched. Petta v. ABC Insurance Co., 2005 WI 18, 278 Wis. 2d 251, 692 N.W.2d 639, 03-0610.

895.04 Annotation The jury award of noneconomic damages for pre-death claims, namely the claim for the decedent’s pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, s. 893.55, and not the wrongful death statute, this section. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.

895.04 Annotation Parents of minor children have separate claims for pre-death and post-death loss of society and companionship, and damages are not capped by the wrongful-death limit. Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

895.04 Annotation Under sub. (2) and s. 895.01 (1) (o), a wrongful death claim does not survive the death of the claimant. In a non-medical malpractice wrongful death case, under sub. (2), a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under s. 655.007 are not subject to a statutory hierarchy like claimants under sub. (2). However, in a medical malpractice wrongful death case, adult children of the deceased are not listed as eligible claimants and are therefore not eligible because of the exclusivity of s. 655.007, as interpreted in Czapinski, 2000 WI 80. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05-2315.

895.04 Annotation Because the legislature modified “children” with “minor” in a different subsection of this section, the only reasonable interpretation of the legislature’s unmodified use of the word “children” in sub. (4) is that the term includes both adult and minor children. Pierce v. American Family Mutual Insurance Co., 2007 WI App 152, 303 Wis. 2d 726, 736 N.W.2d 247, 06-1773.

895.04 Annotation This section does not provide for the recovery of lost inheritance by a party on behalf of a class of heirs. Despite the use of the plural “lineal heirs,” the statute clearly contemplates that each relative will, in turn, have the right to bring an action for wrongful death. The use of the plural “heirs” encompasses exactly the situation when two or more heirs in the same tier of succession in the statutory hierarchy bring a wrongful death action together. Estate of Lamers v. American Hardware Mutual Ins. Co., 2008 WI App 165, 314 Wis. 2d 731, 761 N.W.2d 38, 07-2793.

895.04 Annotation A surviving spouse cannot disclaim a wrongful death claim under s. 854.13 so as to pass ownership of that claim to the deceased’s lineal heirs. Bowen v. American Family Insurance Co., 2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, 11-0185.

895.04 Annotation Sub. (4) does not expand the class of claimants who may recover loss of society and companionship damages beyond those who may recover for wrongful death under subs. (1) and (2). Sub. (4) limits the availability of loss of society and companionship damages to certain persons within the class of claimants entitled to bring wrongful death actions. Bowen v. American Family Insurance Co., 2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, 11-0185.

895.04 Annotation The cause of action authorized under s. 895.03 applies only to deaths caused in Wisconsin. However, Wisconsin courts must allow plaintiffs to sue under another interested state’s law when no Wisconsin law provides for the action and Wisconsin has no public policy against recovery. When there is no cause of action under s. 895.03 and another state’s wrongful death statute applies, the terms and limitations in this section do not apply. Waranka v. Wadena Insurance Co., 2014 WI 28, 353 Wis. 2d 619, 847 N.W.2d 324, 12-0320.

895.04 Annotation “Surviving spouse” in sub. (2) does not always simply mean any living spouse of the deceased. A careful reading of sub. (2) makes it clear that the trial court, in an attempt to protect the children, must work from the amount recovered by the spouse who is charged with the support of the minor children. In order to avoid an absurd, unreasonable result contrary to the legislative purposes of the wrongful death statutes, under the unique facts of this case, sub. (2) and s. 895.03 are construed to allow the minor children to recover even though the deceased’s spouse in the instant case is alive and does not recover any damages for the deceased husband’s wrongful death. Force v. American Family Mutual Insurance Co., 2014 WI 82, 356 Wis. 2d 582, 850 N.W.2d 866, 12-2402.

895.04 Annotation The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12-1493.

895.04 Annotation There may not be separate recovery for both an estate and its beneficiaries. Bell v. City of Milwaukee, 746 F.2d 1205 (1984).

895.04 Annotation Cause of Action by Parents Sustained for Loss of Society and Companionship of Child Tortiously Injured. Gonring. 1976 WLR 641.

895.04 Annotation Expanding and Limiting Damages for Pecuniary Injury Due to Wrongful Death. Schoone. WBB Aug. 1972.

895.043 895.043 Punitive damages.

895.043(1) (1) Definitions. In this section:

895.043(1)(a) (a) “Defendant” means the party against whom punitive damages are sought.

895.043(1)(b) (b) “Double damages” means those court awards made under a statute providing for twice, 2 times or double the amount of damages suffered by the injured party.

895.043(1)(c) (c) “Plaintiff” means the party seeking to recover punitive damages.

895.043(1)(d) (d) “Treble damages” means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.

895.043(2) (2) Scope. This section does not apply to awards of double damages or treble damages, or to the award of exemplary damages under ss. 46.90 (9) (a) and (b), 51.30 (9), 51.61 (7), 55.043 (9m) (a) and (b), 103.96 (2), 134.93 (5), 146.84 (1) (b) and (bm), 153.76, 252.14 (4), 252.15 (8) (a), 610.70 (7) (b), 943.245 (2) and (3) and 943.51 (2) and (3).

895.043(3) (3) Standard of conduct. The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.

895.043(4) (4) Procedure. If the plaintiff establishes a prima facie case for the allowance of punitive damages:

895.043(4)(a) (a) The plaintiff may introduce evidence of the wealth of a defendant; and

895.043(4)(b) (b) The judge shall submit to the jury a special verdict as to punitive damages or, if the case is tried to the court, the judge shall issue a special verdict as to punitive damages.

895.043(5) (5) Application of joint and several liability. The rule of joint and several liability does not apply to punitive damages.

895.043(6) (6) Limitation on damages. Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater. This subsection does not apply to a plaintiff seeking punitive damages from a defendant whose actions under sub. (3) included the operation of a vehicle, including a motor vehicle as defined under s. 340.01 (35), an off-highway motorcycle, as defined in s. 23.335 (1) (q), a snowmobile as defined under s. 340.01 (58a), an all-terrain vehicle as defined under s. 340.01 (2g), a utility terrain vehicle as defined under s. 23.33 (1) (ng), and a boat as defined under s. 30.50 (2), while under the influence of an intoxicant to a degree that rendered the defendant incapable of safe operation of the vehicle. In this subsection, “intoxicant” has the meaning given in s. 30.50 (4e).

895.043 History History: 1995 a. 17; 1997 a. 71; 1999 a. 79; 2005 a. 155 s. 71; Stats. 2005 s. 895.043; 2005 a. 388 s. 216; 2009 a. 274; 2011 a. 2, 208; 2013 a. 166 s. 77; 2015 a. 170.

895.043 Annotation Punitive damages may be awarded in products liability cases. Judicial controls over punitive damage awards are established. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980).

895.043 Annotation Discussing guidelines for submission of punitive damages issues to the jury in a products liability case. Walter v. Cessna Aircraft Co., 121 Wis. 2d 221, 358 N.W.2d 816 (Ct. App. 1984).

895.043 Annotation In awarding punitive damages, the factors to be considered are: 1) the grievousness of the wrongdoer’s acts; 2) the degree of malicious intent; 3) the potential damage that might have been caused by the acts; and 4) the defendant’s ability to pay. An award is excessive if it inflicts a punishment or burden that is disproportionate to the wrongdoing. That a judge provided a means for the defendant to avoid paying the punitive damages awarded did not render the award invalid. Gianoli v. Pfleiderer, 209 Wis. 2d 509, 563 N.W.2d 562 (Ct. App. 1997), 95-2867.

895.043 Note NOTE: The above cases were decided prior to the adoption of s. 895.85 [now this section].

895.043 Annotation Nominal damages may support a punitive damage award in an action for intentional trespass. A grossly excessive punishment violates due process. Whether punitive damages violate due process depends on: 1) the reprehensibility of the conduct; 2) the disparity between the harm suffered and the punitive damages awarded; and 3) the difference between the award and other civil or criminal penalties authorized or imposed. Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997), 95-1028.

895.043 Annotation A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998), 97-0353.

895.043 Annotation The requirement under sub. (3) that the defendant act “in an intentional disregard of the rights of the plaintiff” necessitates that the defendant act with a purpose to disregard the plaintiff’s rights or be aware that the defendant’s conduct is substantially certain to result in the plaintiff’s rights being disregarded. The act or course of conduct must be deliberate and must actually disregard the rights of the plaintiff, whether it be a right to safety, health, or life, a property right, or some other right. There is no requirement of intent to injure or cause harm. Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 4, 694 N.W.2d 320, 01-0724.

895.043 Annotation A defendant’s conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute. Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 4, 694 N.W.2d 320, 01-0724.

895.043 Annotation Sub. (3) requires evidence of either malicious conduct or intentional disregard of the rights of the plaintiff, not both. Henrikson v. Strapon, 2008 WI App 145, 314 Wis. 2d 225, 758 N.W.2d 205, 07-2621.

895.043 Annotation Sub. (3) sets the bar for the kind of evidence required to support a punitive damage award and does not expand the category of cases in which punitive damages may be awarded. In cases in which punitive damages are barred in the first instance, the standard for conduct under sub. (3) does not come into play. Groshek v. Trewin, 2010 WI 51, 325 Wis. 2d 250, 784 N.W.2d 163, 08-0787.

895.043 Annotation Courts apply a six-factor test to determine whether a punitive damages award is excessive: 1) the grievousness of the acts; 2) the degree of malicious intent; 3) whether the award bears a reasonable relationship to the award of compensatory damages; 4) the potential damage that might have been caused by the acts; 5) the ratio of the award to civil or criminal penalties that could be imposed for comparable misconduct; and 6) the wealth of the wrongdoer. Courts are called upon to analyze only those factors that are most relevant to the case. The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct. Kimble v. Land Concepts, Inc., 2014 WI 21, 353 Wis. 2d 377, 845 N.W.2d 395, 11-1514.

895.043 Annotation Punitive damages are not available as a remedy in a breach of contract action. A jury’s award of punitive damages must be based upon a finding of tort liability. The punitive damages awarded in this case were not based on tort liability, but rather on breach of contract and for the quasi-contractual unjust enrichment claim, neither of which supported an award for punitive damages. Mohns Inc. v. BMO Harris Bank National Ass’n, 2021 WI 8, 395 Wis. 2d 421, 954 N.W.2d 339, 18-0071.

895.043 Annotation The due process clause does not permit a jury to base an award of punitive damages in part upon its desire to punish the defendant for harming persons who are not before the court. However, evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk to the general public, and so was particularly reprehensible. The due process clause requires state courts to provide assurance that juries are seeking simply to determine reprehensibility and not also to punish for harm caused to strangers. Philip Morris USA v. Williams, 549 U.S. 346, 127 S. Ct. 1057, 166 L. Ed. 2d 940 (2007).

895.043 Annotation Punitive damages are recoverable under Wisconsin law regardless of whether damages are based on gain to the defendant—restitutionary damages—or loss to the plaintiff—compensatory damages. Wisconsin law allows awards of punitive damages when compensatory damages are imposed, and Wisconsin defines compensatory damages to include compensation, indemnity, and restitution. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).

895.043 Annotation A punitive damages award requires a new trial only when: 1) the claims of liability supporting punitive damages are based on different underlying conduct by the defendant; and 2) one of those claims, and therefore the conduct underlying that claim, is found to be unsupported as a matter of law. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).

895.043 Annotation When assessing punitive damages, constitutional limitations come into play only after the assessment has been tested against statutory and common law principles. The due process clause of the 14th amendment to the U.S. Constitution imposes constitutional limitations on punitive damages. Punitive damages may be imposed to further a state’s legitimate interests in imposing punishment for and deterring illegal conduct, but punitive damages violate due process when the award is grossly excessive in relation to these interests. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).

895.043 Annotation In determining the reprehensibility of the defendant’s conduct, the court considers five factors: 1) whether the harm caused was physical as opposed to economic; 2) whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; 3) whether the target of the conduct had financial vulnerability; 4) whether the conduct involved repeated actions or was an isolated incident; and 5) whether the harm was the result of intentional malice, trickery, or deceit or mere accident. If none of these factors weigh in favor of the plaintiff, the award is suspect. Even if one factor weighs in the plaintiff’s favor, that may not be enough to sustain the punitive award. Finally, since a plaintiff is presumed to be made whole by the compensatory award, punitive damages should be awarded only if the defendant’s conduct is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence. Epic Systems Corp. v. Tata Consultancy Services Ltd., 980 F.3d 1117 (2020).

895.043 Annotation The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Unified Catholic Schools of Beaver Dam Educational Ass’n v. Universal Card Services Corp., 34 F. Supp. 2d 714 (1999).

895.043 Annotation The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.

895.044 895.044 Damages for maintaining certain claims and counterclaims.

895.044(1) (1) A party or a party’s attorney may be liable for costs and fees under this section for commencing, using, or continuing an action, special proceeding, counterclaim, defense, cross complaint, or appeal to which any of the following applies:

895.044(1)(a) (a) The action, special proceeding, counterclaim, defense, cross complaint, or appeal was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

895.044(1)(b) (b) The party or the party’s attorney knew, or should have known, that the action, special proceeding, counterclaim, defense, cross complaint, or appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

895.044(2) (2) Upon either party’s motion made at any time during the proceeding or upon judgment, if a court finds, upon clear and convincing evidence, that sub. (1) (a) or (b) applies to an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense, or cross complaint commenced, used, or continued by a defendant, the court:

895.044(2)(a) (a) May, if the party served with the motion withdraws, or appropriately corrects, the action, special proceeding, counterclaim, defense, or cross complaint within 21 days after service of the motion, or within such other period as the court may prescribe, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, special proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section. In determining whether to award, and the appropriate amount of, damages under this paragraph, the court shall take into consideration the timely withdrawal or correction made by the party served with the motion.

895.044(2)(b) (b) Shall, if a withdrawal or correction under par. (a) is not timely made, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, special proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section.

895.044(3) (3) If a party makes a motion under sub. (2), a copy of that motion and a notice of the date of the hearing on that motion shall be served on any party who is not represented by counsel only by personal service or by sending the motion to the party by registered mail.

895.044(4) (4) If an award under this section is affirmed upon appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the successful party for the actual reasonable attorney fees the party incurred in the appeal.

895.044(5) (5) If the appellate court finds that sub. (1) (a) or (b) applies to an appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the successful party for all the actual reasonable attorney fees the party incurred in the appeal. An appeal is subject to this subsection in its entirety if any element necessary to succeed on the appeal is supported solely by an argument that is described under sub. (1) (a) or (b).

895.044(6) (6) The costs and fees awarded under subs. (2), (4), and (5) may be assessed fully against the party bringing the action, special proceeding, cross complaint, defense, counterclaim, or appeal or the attorney representing the party, or both, jointly and severally, or may be assessed so that the party and the attorney each pay a portion of the costs and fees.

895.044(7) (7) This section does not apply to criminal actions or civil forfeiture actions. Subsection (5) does not apply to appeals under s. 809.107, 809.30, or 974.05 or to appeals of criminal or civil forfeiture actions.

895.044 History History: 2011 a. 2.

895.044 Annotation Sub. (1), by using language that is identical to the language of s. 809.25 (3) (c), did not fundamentally alter what it means for an appeal to be frivolous. Thompson v. Ouellette, 2023 WI App 7, 406 Wis. 2d 99, 986 N.W.2d 338, 21-1087.

895.044 Annotation Discussing the interplay between sub. (5) and s. 809.25 (3), two parallel statutes that do not cross reference each other and that both purport to govern how appellate courts should direct the payment of attorney fees for frivolous appeals. Thompson v. Ouellette, 2023 WI App 7, 406 Wis. 2d 99, 986 N.W.2d 338, 21-1087.

895.044 Annotation Sub. (5) retains the longstanding rule that sanctions for a frivolous appeal will not be awarded unless the entire appeal is frivolous. However, sub. (5) modifies what it means for an appeal to be entirely frivolous by abrogating the specific articulation and application of that standard found in Baumeister, 2004 WI 148. One situation in which an appeal is frivolous in its entirety is when an element, issue, or argument “necessary to succeed on appeal” is supported solely by frivolous arguments. An element, issue, or argument is necessary to succeed on appeal if the appellant cannot secure a reversal, a remand, or another form of relief without prevailing on that element, issue, or argument. Thompson v. Ouellette, 2023 WI App 7, 406 Wis. 2d 99, 986 N.W.2d 338, 21-1087.

895.045 895.045 Contributory negligence.

895.045(1) (1) Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51 percent is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51 percent or more shall be jointly and severally liable for the damages allowed.

895.045(2) (2) Concerted action. Notwithstanding sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.043 (5).

895.045(3) (3) Product liability.

895.045(3)(a) (a) In an action by any person to recover damages for injuries caused by a defective product based on a claim of strict liability, the fact finder shall first determine if the injured party has the right to recover damages. To do so, the fact finder shall determine what percentage of the total causal responsibility for the injury resulted from the contributory negligence of the injured person, what percentage resulted from the defective condition of the product, and what percentage resulted from the contributory negligence of any other person.

895.045(3)(b) (b) If the injured party’s percentage of total causal responsibility for the injury is greater than the percentage resulting from the defective condition of the product, the injured party may not, based on the defect in the product, recover damages from the manufacturer, distributor, seller, or any other person responsible for placing the product in the stream of commerce.

895.045(3)(c) (c) If the injured party’s percentage of total causal responsibility for the injury is equal to or less than the percentage resulting from the defective condition of the product, the injured party may recover but the damages recovered by the injured party shall be diminished by the percentage attributed to that injured party.

895.045(3)(d) (d) If multiple defendants are alleged to be responsible for the defective condition of the product, and the injured party is not barred from recovery under par. (b), the fact finder shall determine the percentage of causal responsibility of each product defendant for the defective condition of the product. The judge shall then multiply that percentage of causal responsibility of each product defendant for the defective condition of the product by the percentage of causal responsibility for the injury to the person attributed to the defective product. The result of that multiplication is the individual product defendant’s percentage of responsibility for the damages to the injured party. A product defendant whose responsibility for the damages to the injured party is 51 percent or more of the total responsibility for the damages to the injured party is jointly and severally liable for all of the damages to the injured party. The responsibility of a product defendant whose responsibility for the damages to the injured party is less than 51 percent of the total responsibility for the damages to the injured party is limited to that product defendant’s percentage of responsibility for the damages to the injured party.

895.045(3)(e) (e) If the injured party is not barred from recovery under par. (b), the fact that the injured party’s causal responsibility for the injury is greater than an individual product defendant’s responsibility for the damages to the injured party does not bar the injured party from recovering from that individual product defendant.

895.045(3)(f) (f) This subsection does not apply to actions based on negligence or a breach of warranty.

895.045 History History: 1971 c. 47; 1993 a. 486; 1995 a. 17; 2005 a. 155; 2011 a. 2.

895.045 Cross-reference Cross-reference: See s. 891.44 for the conclusive presumption that a child under seven years old cannot be guilty of contributory negligence.

895.045 Annotation Ordinary negligence can be compared with negligence founded upon the safe-place statute, and, in making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. It is not prejudicial error to not call attention to the different standards of care in a safe-place case when appropriate jury instructions are used. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 173 N.W.2d 196 (1970).

895.045 Annotation Adopting the doctrine of pure comparative negligence is a legislative matter. Vincent v. Pabst Brewing Co., 47 Wis. 2d 120, 177 N.W.2d 513 (1970).

895.045 Annotation There is no distinction between active and passive negligence as to responsibility for injury or full indemnity to a tortfeasor whose negligence was passive. Pachowitz v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 383, 202 N.W.2d 268 (1972).