895.045 AnnotationRecovery under s. 895.04 (7) is barred by this section 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). 895.045 AnnotationA negligent tortfeasor has the right to indemnity from an intentional joint tortfeasor. A Pierringer, 21 Wis. 2d 182 (1963), release of the intentional tortfeasor absolved the negligent tortfeasor. Fleming v. Threshermen’s Mutual Insurance Co., 131 Wis. 2d 123, 388 N.W.2d 908 (1986). 895.045 AnnotationPunitive damages may not be recovered when actual damages are unavailable due to this section. Tucker v. Marcus, 142 Wis. 2d 425, 418 N.W.2d 818 (1988). 895.045 AnnotationThis section is inapplicable to the equitable resolution of a subrogation dispute. Ives v. Coopertools, 197 Wis. 2d 937, 541 N.W.2d 247 (Ct. App. 1995). 895.045 AnnotationOnly a tortfeasor found to be 51 percent or more causally negligent may be jointly and severally liable for a plaintiff’s total damages. That a plaintiff has no negligence does not alter that rule. Thomas v. Bickler, 2002 WI App 268, 258 Wis. 2d 304, 654 N.W.2d 248, 01-2006. 895.045 AnnotationThe due process clause of the 14th amendment to the U.S. Constitution prohibits a state from imposing a grossly excessive punishment on a tortfeasor. The degree of reprehensibility of the conduct, the disparity between the harm or potential harm suffered by the plaintiff and the punitive damage award, and the difference between the remedy and other civil penalties imposed in comparable cases are factors to be considered. The most important factor is the degree of reprehensibility. Strenke v. Hogner, 2005 WI App 194, 287 Wis. 2d 135, 704 N.W.2d 309, 03-2527. 895.045 AnnotationWhen a trial court finds that a small claims plaintiff’s actual damages exceed the statutory award limit of $5,000, the court should apply any reduction for comparative negligence to the damages found before applying the statutory limit. Bryhan v. Pink, 2006 WI App 111, 294 Wis. 2d 347, 718 N.W.2d 112, 05-1030. 895.045 AnnotationSub. (2) is a codification of the common-law rule on concerted-action liability and not a new cause of action. Concerted-action liability attaches when two or more persons commit a tortious act in concert. Even if an agreement exists, if that agreement does not directly relate to the tortious conduct that caused the injury, the agreement is insufficient to satisfy the agreement required for concerted action. A plan among three people to purchase alcohol for an underage drinker who later caused injury driving while intoxicated did not constitute a concerted action when the common plan to purchase alcohol was not also a common scheme or plan to engage in the act of driving that caused the injury. Richards v. Badger Mutual Insurance Co., 2006 WI App 255, 297 Wis. 2d 699, 727 N.W.2d 69, 05-2796. 895.045 AnnotationSub. (2) applies only after a judge or jury has determined, under applicable substantive law, that more than one tortfeasor is liable in some measure to the plaintiff. Sub. (2) plays no role in determining whether a given defendant may be held liable to the plaintiff. Danks v. Stock Building Supply, Inc., 2007 WI App 8, 298 Wis. 2d 348, 727 N.W.2d 846, 05-2679. 895.045 AnnotationSub. (2) is the codification of the common law concerted action theory of liability. There are three factual predicates necessary to proving concerted action: 1) there must be an explicit or tacit agreement among the parties to act in accordance with a mutually agreed upon scheme or plan; parallel action, without more, is insufficient to show a common scheme or plan; 2) there must be mutual acts committed in furtherance of that common scheme or plan that are tortious acts; and 3) the tortious acts that are undertaken to accomplish the common scheme or plan must be the acts that result in damages. Richards v. Badger Mutual Insurance Co., 2008 WI 52, 309 Wis. 2d 541, 749 N.W.2d 581, 05-2796. 895.045 AnnotationWhen the plaintiff’s negligence was greater than any injurer’s, neither the plaintiff nor the plaintiff’s spouse could recover. Spearing v. National Iron Co., 770 F.2d 87 (1985). 895.045 AnnotationProportioning Comparative Negligence—Problems of Theory and Special Verdict Formulation. Aiken. 53 MLR 293 (1970).
895.045 AnnotationFrom Defect to Cause to Comparative Fault—Rethinking Some Product Liability Concepts. Twerski. 60 MLR 297 (1977).
895.045 AnnotationThe Problem of the Insolvent Contributor. Myse. 60 MLR 891 (1977).
895.045 AnnotationPunitive Damage Recovery in Products Liability Cases. Ghiardi & Kircher. 65 MLR 1 (1981).
895.045 AnnotationThe Concepts of “Defective Condition” and “Unreasonably Dangerous” in Products Liability Law. Swartz. 66 MLR 280 (1983).
895.045 AnnotationSeat Belt Negligence: The Ambivalent Wisconsin Rules. McChrystal. 68 MLR 539 (1985).
895.045 AnnotationSecond Collision Law—Wisconsin. Ghiardi. 69 MLR 1 (1985).
895.045 AnnotationStrict Products Liability in Wisconsin. Severson. 1977 WLR 227.
895.045 AnnotationComparative Negligence in Wisconsin. Horowitz. WBB Jan. 1981.
895.045 AnnotationPlaintiff’s failure to wear a safety belt. Towers. WBB July 1985.
895.045 AnnotationWisconsin’s Modified, Modified Comparative Negligence Law. Kircher. Wis. Law. Feb. 1996.
895.045 AnnotationEnforceable Exculpatory Agreements. Pendleton. Wis. Law. Nov. 1997.
895.045 AnnotationWisconsin’s Comparative Negligence Statute: Applying It to Products Liability Cases Brought Under a Strict Liability Theory. Pless. Wis. Law. Aug. 1998.
895.046895.046 Remedies against manufacturers, distributors, sellers, and promoters of products. 895.046(1g)(1g) Legislative findings and intent. The legislature finds that it is in the public interest to clarify product liability law, generally, and the application of the risk contribution theory of liability first announced by the Wisconsin Supreme Court in Collins v. Eli Lilly Company, 116 Wis. 2d 166 (1984), specifically, in order to return tort law to its historical, common law roots. This return both protects the rights of citizens to pursue legitimate and timely claims of injury resulting from defective products, and assures that businesses may conduct activities in this state without fear of being sued for indefinite claims of harm from products which businesses may never have manufactured, distributed, sold, or promoted, or which were made and sold decades ago. The legislature finds that the application of risk contribution to former white lead carbonate manufacturers in Thomas v. Mallett, 285 Wis. 2d 236 (2005), was an improperly expansive application of the risk contribution theory of liability announced in Collins, and that application raised substantial questions of deprivation of due process, equal protection, and right to jury trial under the federal and Wisconsin constitutions. The legislature finds that this section protects the right to a remedy found in article I, section 9, of the Wisconsin Constitution, by preserving the narrow and limited application of the risk contribution theory of liability announced in Collins. 895.046(1r)(a)(a) “Claimant” means a person seeking damages or other relief for injury or harm to a person or property caused by or arising from a product, or a person on whose behalf a claim for such damages or other relief is asserted. 895.046(1r)(b)(b) “Relevant production period” means the time period during which the specific product that allegedly caused a claimant’s injury or harm was manufactured, distributed, sold, or promoted. 895.046(2)(2) Applicability. This section applies to all actions in law or equity, whenever filed or accrued, in which a claimant alleges that the manufacturer, distributor, seller, or promoter of a product is liable for an injury or harm to a person or property, including actions based on allegations that the design, manufacture, distribution, sale, or promotion of, or instructions or warnings about, a product caused or contributed to a personal injury or harm to a person or property, a private nuisance, or a public nuisance, and to all related or independent claims, including unjust enrichment, restitution, or indemnification. 895.046(3)(3) Remedy with specific product identification. Except as provided in sub. (4), the manufacturer, distributor, seller, or promoter of a product may be held liable in an action under sub. (2) only if the claimant proves, in addition to any other elements required to prove his or her claim, that the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted the specific product alleged to have caused the claimant’s injury or harm. 895.046(4)(4) Remedy without specific product identification. Subject to sub. (5), if a claimant cannot meet the burden of proof under sub. (3), the manufacturer, distributor, seller, or promoter of a product may be held liable for an action under sub. (2) only if all of the following apply: 895.046(4)(a)1.1. That no other lawful process exists for the claimant to seek any redress from any other person for the injury or harm. 895.046(4)(a)2.2. That the claimant has suffered an injury or harm that can be caused only by a manufactured product chemically and physically identical to the specific product that allegedly caused the claimant’s injury or harm. 895.046(4)(a)3.3. That the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted a complete integrated product, in the form used by the claimant or to which the claimant was exposed, and that meets all of the following criteria: 895.046(4)(a)3.a.a. Is chemically and physically identical to the specific product that allegedly caused the claimant’s injury or harm. 895.046(4)(a)3.b.b. Was manufactured, distributed, sold, or promoted in the geographic market where the injury or harm is alleged to have occurred during the time period in which the specific product that allegedly caused the claimant’s injury or harm was manufactured, distributed, sold, or promoted. 895.046(4)(a)3.c.c. Was distributed or sold without labeling or any distinctive characteristic that identified the manufacturer, distributor, seller, or promoter. 895.046(4)(b)(b) The action names, as defendants, those manufacturers of a product who collectively manufactured at least 80 percent of all products sold in this state during the relevant production period by all manufacturers of the product in existence during the relevant production period that are chemically identical to the specific product that allegedly caused the claimant’s injury or harm. 895.046(5)(5) Limitation on liability. No manufacturer, distributor, seller, or promoter of a product is liable under sub. (4) if more than 25 years have passed between the date that the manufacturer, distributor, seller, or promoter of a product last manufactured, distributed, sold, or promoted the specific product chemically identical to the specific product that allegedly caused the claimant’s injury and the date that the claimant’s cause of action accrued. 895.046(6)(6) Apportionment of liability. If more than one manufacturer, distributor, seller, or promoter of a product is found liable for the claimant’s injury or harm under subs. (4) and (5), the court shall apportion liability among those manufacturers, distributors, sellers, and promoters, but that liability shall be several and not joint. 895.046 HistoryHistory: 2011 a. 2; 2013 a. 20; s. 35.17 correction in (1g). 895.046 AnnotationArticle I, section 1, of the Wisconsin Constitution prohibits retroactive application of this section. Wisconsin Supreme Court precedent demands holding that this section violates state due-process principles by trying to extinguish the plaintiff’s vested right in the plaintiff’s negligence and strict-liability causes of action. Gibson v. American Cyanamid Co., 760 F.3d 600 (2014). 895.046 AnnotationThis section reinstates ordinary causation principles in all products liability cases, while carving out a narrow exception for plaintiffs like Collins, 116 Wis. 2d 166 (1984), who have no other remedy and whose injuries stem from a completely integrated product produced in chemically and physically identical forms and sold in generic packaging. The net effect of this section, Thomas, 2005 WI 129, and Gibson, 760 F.3d 600 (2014), is a six-year window (2005-2011) in which plaintiffs in Wisconsin can rely on the risk-contribution theory to sue white lead carbonate manufacturers for injuries arising from their ingestion of white lead carbonate as children. Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791 (2021). 895.046 AnnotationAlthough this section may not retroactively extinguish the cause of action that Thomas, 2005 WI 129, recognized, the plaintiffs’ claims in this case went beyond Thomas, and this section forbade the district court’s extension of Thomas. The district court improperly extended Thomas by allowing the plaintiffs to hold the defendants liable in their capacity as manufacturers of finished paint products, and not just in their capacity as manufacturers of white lead carbonate. Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791 (2021). 895.046 AnnotationWisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2. Irgens. 2012 WLR 1245. 895.047(1)(1) Liability of manufacturer. In an action for damages caused by a manufactured product based on a claim of strict liability, a manufacturer is liable to a claimant if the claimant establishes all of the following by a preponderance of the evidence: 895.047(1)(a)(a) That the product is defective because it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product contains a manufacturing defect if the product departs from its intended design even though all possible care was exercised in the manufacture of the product. A product is defective in design if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe. A product is defective because of inadequate instructions or warnings only if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe. 895.047(1)(b)(b) That the defective condition rendered the product unreasonably dangerous to persons or property. 895.047(1)(c)(c) That the defective condition existed at the time the product left the control of the manufacturer. 895.047(1)(d)(d) That the product reached the user or consumer without substantial change in the condition in which it was sold. 895.047(1)(e)(e) That the defective condition was a cause of the claimant’s damages. 895.047(2)(a)(a) A seller or distributor of a product is not liable based on a claim of strict liability to a claimant unless the manufacturer would be liable under sub. (1) and any of the following applies: 895.047(2)(a)1.1. The claimant proves by a preponderance of the evidence that the seller or distributor has contractually assumed one of the manufacturer’s duties to manufacture, design, or provide warnings or instructions with respect to the product. 895.047(2)(a)2.2. The claimant proves by a preponderance of the evidence that neither the manufacturer nor its insurer is subject to service of process within this state. 895.047(2)(a)3.3. A court determines that the claimant would be unable to enforce a judgment against the manufacturer or its insurer. 895.047(2)(b)(b) The court shall dismiss a product seller or distributor as a defendant based on par. (a) 2. if the manufacturer or its insurer submits itself to the jurisdiction of the court in which the suit is pending. 895.047(3)(a)(a) If the defendant proves by clear and convincing evidence that at the time of the injury the claimant was under the influence of any controlled substance or controlled substance analog to the extent prohibited under s. 346.63 (1) (a), or had an alcohol concentration, as defined in s. 340.01 (1v), of 0.08 or more, there shall be a rebuttable presumption that the claimant’s intoxication or drug use was the cause of his or her injury. 895.047(3)(b)(b) Evidence that the product, at the time of sale, complied in material respects with relevant standards, conditions, or specifications adopted or approved by a federal or state law or agency shall create a rebuttable presumption that the product is not defective. 895.047(3)(c)(c) The damages for which a manufacturer, seller, or distributor would otherwise be liable shall be reduced by the percentage of causal responsibility for the claimant’s harm attributable to the claimant’s misuse, alteration, or modification of the product. 895.047(3)(d)(d) The court shall dismiss the claimant’s action under this section if the damage was caused by an inherent characteristic of the product that would be recognized by an ordinary person with ordinary knowledge common to the community that uses or consumes the product. 895.047(3)(e)(e) A seller or distributor of a product is not liable to a claimant for damages if the seller or distributor receives the product in a sealed container and has no reasonable opportunity to test or inspect the product. This paragraph does not apply if the seller or distributor may be liable under sub. (2) (a) 2. or 3. 895.047(4)(4) Subsequent remedial measures. In an action for damages caused by a manufactured product based on a claim of strict liability, evidence of remedial measures taken subsequent to the sale of the product is not admissible for the purpose of showing a manufacturing defect in the product, a defect in the design of the product, or a need for a warning or instruction. This subsection does not prohibit the admission of such evidence to show a reasonable alternative design that existed at the time when the product was sold. 895.047(5)(5) Time limit. In any action under this section, a defendant is not liable to a claimant for damages if the product alleged to have caused the damage was manufactured 15 years or more before the claim accrues, unless the manufacturer makes a specific representation that the product will last for a period beyond 15 years. This subsection does not apply to an action based on a claim for damages caused by a latent disease. 895.047(6)(6) Inapplicability. This section does not apply to actions based on a claim of negligence or breach of warranty. 895.047 HistoryHistory: 2011 a. 2. 895.047 AnnotationAllegations that a defendant was negligent because it selected and applied a mortar that was not appropriate for the context in which it was used did not give rise to a product liability claim because the plaintiffs did not allege that the defendant manufactured or sold a defective product. Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961. 895.047 AnnotationWhen a claim is for defective design: 1) sub. (1) (a) requires proof of a more safe, reasonable alternative design the omission of which renders the product not reasonably safe; 2) proof that the consumer-contemplation standard as set out in sub. (1) (b) for strict liability claims for a defective design has been met; and 3) proof that the remaining three factors of a sub. (1) claim have been met. Murphy v. Columbus McKinnon Corp., 2022 WI 109, 405 Wis. 2d 157, 982 N.W.2d 898, 20-1124. 895.047 AnnotationWhile sub. (1) (a) appears to borrow language from section 2 of the Restatement (Third) of Torts, the legislature did not adopt the entirety of section 2, nor did it enact the Restatement’s voluminous comments. The plain language of sub. (1) (a) is clear, and the court interprets it by its plain language. Regardless of where the language originated, the court will not read Restatement language or comments into the statute, simply because the legislature selectively adopted some wording from the Restatement. Murphy v. Columbus McKinnon Corp., 2022 WI 109, 405 Wis. 2d 157, 982 N.W.2d 898, 20-1124. 895.047 AnnotationSub. (1) (b), (c), (d), and (e) codify the common law Wisconsin courts have developed and applied for decades, including the common law consumer-contemplation standard in sub. (1) (b). Vincer, 69 Wis. 2d 326 (1975), established that the consumer-contemplation test for an unreasonably dangerous defect depends on the reasonable expectations of the ordinary consumer concerning the characteristics of this type of product. Murphy v. Columbus McKinnon Corp., 2022 WI 109, 405 Wis. 2d 157, 982 N.W.2d 898, 20-1124. 895.047 AnnotationSub. (6) specifically maintains the criteria for claims of negligence and breach of warranty, claims well-grounded in Wisconsin common law. Murphy v. Columbus McKinnon Corp., 2022 WI 109, 405 Wis. 2d 157, 982 N.W.2d 898, 20-1124. 895.047 AnnotationThe presumption of nondefectiveness codified in sub. (3) (b) does not shift the burden of proof from one party to another. Instead, the presumption is the legal mechanism for according a product’s compliance with certain government standards special weight in the factfinder’s ultimate determination whether the product is defective. Vanderventer v. Hyundai Motor America, 2022 WI App 56, 405 Wis. 2d 481, 983 N.W.2d 1, 20-1052. 895.047 AnnotationSub. (3) (b) is silent regarding what evidence a plaintiff may introduce to rebut the presumption. In this case, the court admitted evidence of 85 recalls involving the defendant’s vehicles and components other than the driver’s seat at issue in the case. The recall evidence tended to show that vehicles that comply with Federal Motor Vehicle Safety Standards could nonetheless have safety-related defects. This, in turn, could have supported an inference that the subject vehicle’s satisfaction of those standards was not especially strong evidence that its driver’s seat was not defective. Thus, the court did not exceed its discretion in concluding that recalls related to other vehicles and components carried some probative value on the issue. Vanderventer v. Hyundai Motor America, 2022 WI App 56, 405 Wis. 2d 481, 983 N.W.2d 1, 20-1052. 895.047 AnnotationTo prove the existence of a reasonable alternative design under sub. (1) (a), a plaintiff need not produce an actual prototype of a reasonable design alternative, nor does a plaintiff have to show that the alternative design was ever adopted by a manufacturer or considered for commercial use. Instead a plaintiff may rely on credible expert testimony that the alternative design could have been practically adopted as of the time of sale. In addition, other products already available on the market may serve as reasonable alternatives to the product in question. Vanderventer v. Hyundai Motor America, 2022 WI App 56, 405 Wis. 2d 481, 983 N.W.2d 1, 20-1052. 895.047 AnnotationWisconsin’s codification under 2011 Wis. Act 2 of its product liability law generally did not supersede the common law. Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995 (2017). 895.047 AnnotationThe contract specification defense does not apply to a claim of strict liability under Wisconsin law. Under the contract specification defense, a manufacturer that makes a product strictly in accordance with the design specifications of another is not liable in negligence unless the specifications are so obviously defective and dangerous that a contractor of reasonable prudence would have been put on notice that the product is dangerous and likely to cause injury. The contract specification defense significantly undermines the policies underlying strict liability. Therefore, the defense does not exist under Wisconsin law. Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995 (2017). 895.047 AnnotationA manufacturer of a component that is incorporated into a larger product is not necessarily strictly liable should the larger product prove defective. A component manufacturer is strictly liable only if the injury is directly attributable to a defect in the component and there was no change in the component that was merely incorporated into something larger. But when the component part is subject to further proceeding or substantial change, or when the causing of injury is not directly attributable to defective construction of the component part, the result might be different. The Wisconsin legislature explicitly codified this common law requirement under sub. (1) (d). Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995 (2017). 895.047 AnnotationSellers and distributors are liable under sub. (2), not because of any particular activity on their part, but because they are proxies for absent manufacturers. This structure suggests that, in the absence of the manufacturer, the entity responsible for getting the defective product into Wisconsin is liable. In this case, the defendant did not own the product sold to the plaintiff, but, for products sold under the defendant’s “Fulfillment by Amazon” program, the defendant otherwise served all the traditional functions of both retail seller and wholesale distributor. Thus, when the defendant provided order fulfillment services through the program, the defendant was properly considered a seller for purposes of Wisconsin strict product liability law for products sold by third parties through the defendant’s website. State Farm Fire & Casualty Co. v. Amazon.com, Inc., 390 F. Supp. 3d 964 (2019). 895.047 AnnotationThe Wisconsin Constitution’s guarantee to due process prohibits retroactive application of this section in this case. Nelson v. Johnson & Johnson, 428 F. Supp. 3d 1 (2019). 895.047 AnnotationThis section alters the way in which a plaintiff proves a strict products liability claim. It essentially changes the elements and redefines a defectively-designed product. Implicit in the language of sub. (1) (a) is the rule that an inherently dangerous product for which there is no safer alternative cannot be found unreasonably dangerous. Sub. (1) (a) thus imposes new burdens on a plaintiff by requiring that the plaintiff prove foreseeability and that a reasonable alternative design exists and should have been adopted by the manufacturer. Nelson v. Johnson & Johnson, 428 F. Supp. 3d 1 (2019). 895.047 AnnotationWisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2. Irgens. 2012 WLR 1245. 895.047 AnnotationA New Era: Products Liability Law in Wisconsin. Edwards & Ozalp. Wis. Law. July 2011.
895.048895.048 Recovery by auto or motorboat owner limited. The owner of a motor vehicle or motorboat which, while being operated by the spouse or minor child of such owner, is damaged as the result of an accident involving another vehicle or boat, may not recover from the owner or operator of such other vehicle or boat for such damages, if the negligence of such spouse or minor child exceeds that of the operator of such other vehicle or boat. In the event that it is judicially determined that a spouse or minor operator of the motor vehicle or motorboat is found to be guilty of less than 50 percent of the causal negligence involved in an accident, then in that event the owner of the motor vehicle or motorboat involved shall be entitled to recover in accordance with the contributory negligence principles as laid down in s. 895.045. For the purposes of recovery of damages by the owner under s. 895.048, and for this purpose only, the negligence of the spouse or minor operator shall be imputed to the owner.
