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. 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.
