895.043 AnnotationWhen 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 AnnotationIn 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 AnnotationThe 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 AnnotationThe Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
895.044895.044 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 HistoryHistory: 2011 a. 2. 895.044 AnnotationSub. (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 AnnotationDiscussing 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 AnnotationSub. (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. 895.045895.045 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)(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 Cross-referenceCross-reference: See s. 891.44 for the conclusive presumption that a child under seven years old cannot be guilty of contributory negligence. 895.045 AnnotationOrdinary 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 AnnotationAdopting 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 AnnotationThere 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). 895.045 AnnotationFor the purpose of applying the comparative negligence statute, both the causes of action for medical expenses and loss of consortium are derivative. The causal negligence of the injured spouse bars or limits the recovery of the claiming spouse pursuant to the terms of the statute. White v. Lunder, 66 Wis. 2d 563, 225 N.W.2d 442 (1975). 895.045 AnnotationThe contributory negligence of the plaintiff-spectator in viewing an auto race was not greater than defendants’ negligence as a matter of law when the plaintiff did not realize that watching from a curve would be more dangerous than sitting in the grandstand, was not aware that tires would fly into the spectator area, there was no warning of potential dangers, and the plaintiff was watching the race closely immediately prior to the accident. Kaiser v. Cook, 67 Wis. 2d 460, 227 N.W.2d 50 (1975). 895.045 AnnotationThe trial court’s denial of a motion by two employee-defendants to direct the jury to consider the employer’s negligence in its special verdict, even though the employer’s liability extended only to workers compensation, was an error. Connar v. West Shore Equipment of Milwaukee, Inc., 68 Wis. 2d 42, 227 N.W.2d 660 (1975). 895.045 AnnotationThe trial court’s instruction to the jury not to compute all of the damages the plaintiff suffered, but only that portion caused by the defendant’s negligence, was erroneous. This section requires the jury to find 100 percent of the plaintiff’s damages, which are then reduced by the amount of contributory negligence. Nimmer v. Purtell, 69 Wis. 2d 21, 230 N.W.2d 258 (1975). 895.045 AnnotationConduct constituting implied or tacit assumption of risk is not a bar to an action for negligence. Polsky v. Levine, 73 Wis. 2d 547, 243 N.W.2d 503 (1976). 895.045 AnnotationA minor injured during employment cannot be charged with contributory negligence when the employment is in violation of child labor laws. Tisdale v. Hasslinger, 79 Wis. 2d 194, 255 N.W.2d 314 (1977). 895.045 AnnotationWhen the court granted judgment notwithstanding the verdict regarding two of several defendants found causally negligent, and the percentage of negligence reallocated affected damages but not liability, the plaintiffs should have been given the option of a proportional reduction of the judgment or a new trial. Chart v. General Motors Corp., 80 Wis. 2d 91, 258 N.W.2d 680 (1977). 895.045 AnnotationIf a court can find as a matter of law that a party is causally negligent, contrary to the jury’s answer, and the jury attributes some degree of comparative negligence to that party, the court should change the causal negligence answer and permit the jury’s comparison to stand. Ollinger v. Grall, 80 Wis. 2d 213, 258 N.W.2d 693 (1977). 895.045 AnnotationWhen blowing snow obstructed a driver’s vision, but the driver did not reduce speed, and a parked truck on the highway “loomed up” out of the snow, the driver was causally negligent as matter of law. Nelson v. Travelers Insurance Co., 80 Wis. 2d 272, 259 N.W.2d 48 (1977). 895.045 AnnotationThe “emergency doctrine” relieves a person for liability for the person’s actions when that person is faced with a sudden emergency the person did not create. The “rescue rule” applies even though the action of the rescuer is deliberate and taken after some planning and consideration. Rescuers will not be absolved of all negligence if their actions are unreasonable under the circumstances. Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977). 895.045 AnnotationThe negligence of a tortfeasor dismissed from a lawsuit on summary judgment as being less or equally negligent as the plaintiff can be considered by the jury in apportioning the total causal negligence of the remaining parties. Gross v. Midwest Speedways, Inc., 81 Wis. 2d 129, 260 N.W.2d 36 (1977). 895.045 AnnotationNegligence per se arising out of a breach of a safety statute may be compared with common law negligence. Locicero v. Interpace Corp., 83 Wis. 2d 876, 266 N.W.2d 423 (1978). 895.045 AnnotationContributory negligence, if proved, is a defense in a strict liability case. Austin v. Ford Motor Co., 86 Wis. 2d 628, 273 N.W.2d 233 (1979). 895.045 AnnotationIn a safe place case, comparative negligence instructions need not direct the jury to consider the defendant’s higher duty of care. Brons v. Bischoff, 89 Wis. 2d 80, 277 N.W.2d 854 (1979). 895.045 AnnotationA motorist injured while fleeing the police was, as matter of law, more negligent than the pursuing officer. Brunette v. Employers Mutual Liability Insurance Co. of Wisconsin, 107 Wis. 2d 361, 320 N.W.2d 43 (Ct. App. 1982). 895.045 AnnotationFailure to give the jury an emergency instruction was reversible error, despite the plaintiff’s violation of several safety statutes. Discussing when an emergency instruction is appropriate. Westfall v. Kottke, 110 Wis. 2d 86, 328 N.W.2d 481 (1983). 895.045 AnnotationDistinguishing “seat belt negligence” and “passive negligence,” recommending jury instructions regarding seat belts, and adopting a method for apportioning damages in seat belt negligence cases. Foley v. City of West Allis, 113 Wis. 2d 475, 335 N.W.2d 824 (1983). 895.045 AnnotationA bus driver who told an 11-year-old that he could not ride the school bus the next day, but did not inform either the school or the child’s parents, was properly found 93 percent liable for injuries sustained by the boy while riding his bicycle to school the next day. Toeller v. Mutual Service Casualty Insurance Co., 115 Wis. 2d 631, 340 N.W.2d 923 (Ct. App. 1983). 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.
