Wisconsin's Comparative Negligence Statute: Applying It to Products
Liability Cases Brought Under a Strict Liability Theory
By Erik J. Pless
Attorneys bringing and
defending products liability cases must pay close attention to how
special verdicts will be formulated and how revised section 895.045 of
the Wisconsin Statutes will affect the amount of plaintiffs' recoveries
and from whom plaintiffs can recover. |
As part of the Wisconsin Legislature's package of tort reform, a law
of comparative negligence went into effect on May 18, 1995, in the form
of the revised Wisconsin Statute section 895.045.
The statute applies to all cases filed on or after the effective date.
Therefore, the cases that this law affects are already in litigation.
This article analyzes some of the potential problems brought about by
the law, shows how trial courts have dealt with the law so far, and
suggests solutions to the application of a negligence statute to strict
liability.
The statute regarding comparative negligence radically changed
Wisconsin's common law doctrine of joint and several liability. The
statute provides that the liability of a defendant who is less than 51
percent negligent is limited to whatever percentage of total causal
negligence is attributed to that defendant by the jury. However, if a
defendant is found to be 51 percent or more causally negligent, then
that defendant is jointly and severally liable for all of the damages
allowed, less any reduction for the plaintiff's own contributory
negligence. 1 In a tort action brought under
a theory of simple negligence, applying the statute is rather simple and
straightforward. Problems arise when the comparative negligence statute
is applied in cases brought under the theory of strict liability, such
as a products liability case.2
Why a negligence statute applies to strict liability
Most product liability cases are brought under two separate theories:
strict liability in tort under Section 402A of the Restatement (2d) of
Torts, and negligence. Before the law on contributory negligence, a jury
in a case brought under the theory of strict liability was asked the
questions put forth in Wisconsin Jury Instruction - Civil 3290. In
short, the suggested special verdict in the jury instruction asks the
jury the five separate components of Section 402A of the Restatement.
Under Restatement (2d) of Torts, strict liability attaches when the
plaintiff proves the following five elements:
- the product was defective when it left seller's possession;
- the product was unreasonably dangerous;
- the defect caused the injuries;
- the seller engaged in business of selling product; and
- the product reached user without substantial change.
Once the five elements of Section 402A are established, all
the defendants in the chain of distribution and the product itself are
"deemed" negligent and, therefore, strictly liable for the plaintiff's
damages. The product deemed negligent then is compared to the negligence
of the plaintiff in one comparison question without reference to any
specific defendant.
In its purest form, strict liability under Section 402A is akin to
absolute liability without any regard to the ordinary negligence of the
user. Comment (n) to the Restatement indicates as such with the
exception of "voluntarily and unreasonably proceeding to encounter a
known danger" or the "assumption of risk" doctrine that would bar
recovery. However, when the Wisconsin Supreme Court adopted the theory
of strict liability and Section 402A of the Restatement (2d) of Torts in
Dippel v. Sciano, the court adopted a modified version of
strict liability that, in effect, put the entire theory of strict
liability under the umbrella of negligence.3
The court's rationale in Dippel actually is designed to
benefit the plaintiff by preventing the "assumption of risk" doctrine
from completely barring recovery by a negligent plaintiff. The court
equated "assumption of risk" with common ordinary negligence, and thus
placed strict liability under the umbrella of Wisconsin's comparative
negligence statute - the prior version of section 895.045, which merely
reduced a plaintiff's recovery proportionally rather than barring it.
The court said:
"The term strict liability in tort might be misconstrued
and, if so, would be a misnomer. Strict liability does not make the
manufacturer or seller an insurer, nor does it impose absolute
liability. ... The defense of contributory negligence is available to
the seller."4
Thus, Wisconsin has adopted a theory of strict liability that also
takes into account the plaintiff's ordinary contributory negligence.
However, this view is not without some reluctance and confusion:
"[T]he occasional references to negligence per se in products
liability cases and in the pattern jury instructions do not ...
inseparably wed the two theories of liability in all circumstances.
Indeed, comparing strict liability and negligence 'is ... comparing
apples and oranges, for [strict liability] is based upon the
public-policy premise that a seller is socially responsible for what he
[or she] puts into the stream of commerce irrespective of [the] degree
of care.' On the other hand, negligence is based upon a theory of
fault."5
Nonetheless, the view that the contributory negligence statute, in
its previous forms, applies to strict liability cases has been upheld
over the years by the Wisconsin Supreme Court.6 Furthermore, although there has been no appellate
court decision on the applicability of the revised statute, at least two
trial courts have held that the statute does apply to products cases
brought under the theory of strict liability.7
The problem arises
Prior to the 1995 version of section 895.045, applying the
comparative negligence statute to strict liability cases was simple. The
plaintiff's contributory negligence - if less than 51 percent - simply
was subtracted from the amount of the plaintiff's recovery. Furthermore,
under Wisconsin's common law doctrine of joint and several liability,
all of the defendants in the chain of distribution who were found to be
strictly liable would be joint and severally liable for the plaintiff's
net damages. However, the revised section 895.045 eliminates joint and
several liability for defendants less than 51 percent negligent. The
problem of how much each defendant should pay arises because under the
Jury Instruction - Civil 3290 there is no direct comparison between the
negligence apportioned to the plaintiff and the responsibility of each
defendant for manufacturing the product or placing the product in the
stream of commerce. Rather, under Jury Instruction - Civil 3290 the
first comparison is of plaintiff versus the product as a whole, without
comparison to any specific defendant. Then, a second comparison question
is asked of the jury to apportion responsibility for the product. This
second apportionment question, applied only among defendants, was
approved by the Wisconsin Supreme Court in City of Franklin v.
Badger Ford.8 So, the question remains,
how much does each defendant pay under the comparative negligence
statute?
For example, suppose a plaintiff establishes that two defendants, a
manufacturer and a distributor, are both strictly liable under the five
elements of Section 402A. However, the plaintiff is 40 percent
contributorily negligent, as compared to the product, which bears 60
percent of the negligence. The jury then takes the second apportionment
and finds that the manufacturer is 70 percent responsible (for
manufacturing the defective product), and the distributor is 30 percent
responsible (for placing the defective product in the stream of commerce
through marketing). Under the revised section 895.045, does the
distributor pay 30 percent of 60 percent of the plaintiff's damages (the
distributor's share, less the plaintiff's contributory negligence), or
does the distributor pay nothing because the plaintiff's contributory
negligence exceeds the amount apportioned to the distributor by the
jury? Or, is Jury Instruction - Civil 3290 simply unworkable, given the
revised section 895.045?
Eliminating plaintiff vs. product and a new special verdict
The wording of the statute itself provides some guidance. In addition
to eliminating joint and several liability, the statute also contains a
new provision: the negligence of the plaintiff shall be measured
separately against the negligence of each person found to be causally
negligent.9 The
key words in this provision are "shall be measured separately." Under
Jury Instruction - Civil 3290, there is no "separate measurement" of the
plaintiff's negligence against the defendant's negligence. Therefore,
the language of the statute would suggest that the standard special
verdict form in products liability cases needs to be changed.10
Under all the prior versions of section 895.045 and Wisconsin case
law regarding the application of the doctrine of strict liability, the
plaintiff's negligence was compared against that of the product. The
statute's new language, specifically, the "shall be measured separately"
provision, seems to mandate eliminating the traditional "person versus
product" comparison.
The special verdict form needs to be revised to balance the
plaintiff's interest in maintaining the advantages of bringing a
products liability suit in strict liability, but yet reconciling the
"shall be measured separately" mandate in the new statute. To provide
the plaintiff with the benefit of bringing the case under the theory of
strict liability, all five elements of Section 402A must be retained.
Once the plaintiff proves the five elements of Section 402A, each
defendant in the chain of distribution is deemed negligent per se, as
envisioned by the Wisconsin Supreme Court in Dippel.11 As the Dippel court reasoned:
"From the plaintiff's point of view, the most beneficial aspect of
the rule is that it relieves him of proving specific acts of negligence
and protects him from the defenses of notice of breach, disclaimer, and
lack of privity in the implied warranty concepts of sales and
contracts."12
At the
same time, the defendants will insist on taking advantage of the "shall
be measured separately" mandate and eliminating joint and several
liability in the new statute. One solution to the negligence versus
strict liability problem is the apportionment of liability once the
defendants have been deemed negligent.13Once the plaintiff proves the five elements of
Section 402A, only one comparison question would be asked to apportion
the liability, not the negligence, of each person or entity potentially
responsible for the plaintiff's injury.14
The apportionment of liability and not negligence is necessary to
eliminate the need for a plaintiff to prove specific acts or omissions
constituting negligence as to each defendant, such as a merchant. This
would include the plaintiff, the manufacturer, each defendant in the
chain of distribution, each entity in the chain of distribution not
named as a defendant, and anyone else who may be contributorily
negligent, such as an employer or coworker.15
From the defense perspective, the revised special verdict form
suggested above would have significant advantages. First, any defendant
simply in the chain of distribution, such as a distributor or seller,
would have its liability substantially reduced. Each defendant would pay
only its share, and not assume another's share as under the old rules of
joint and several liability. Second, many defendants would benefit from
considerable negligence by uncollectible tort feasors, such as an
employer protected by the exclusivity provision of the worker's
compensation statutes or a bankrupt manufacturer. Under the revised
statute, such negligence - and thus liability - simply would drop out if
the other defendants are less than 51 percent negligent, whereas
previously marginally negligent tortfeasors would be jointly and
severally liable for the share of the uncollectible tort feasor.
From the plaintiff's perspective, a products liability case still
would be viable against truly responsible parties, such as the
manufacturer of a defective product. Second, the plaintiff still retains
the benefit of not having to prove any specific acts of negligence by
any party in a defective product's distribution chain to collect
damages. For example, if a plaintiff was not at all contributorily
negligent, such as in the case of an exploding soda bottle, plaintiff
would be able to collect all of his or her damages from each solvent
member in the distribution chain.
On balance, the revisions to section 895.045 of the Wisconsin
Statutes no doubt favor more defendants than plaintiffs. The primary
beneficiaries of the law are distributors and sellers who are in the
distribution chain from manufacturer to consumer. Thus, in situations
where there is a bankrupt manufacturer, the plaintiff will be forced to
bear the majority, if not all, of any loss. This has led to the
inevitable argument that the law is unfair because it places more of a
burden on the injured consumer, and less of a burden on those in the
stream of commerce who profited from the sale of the product. Such
arguments can and should be made directly to the juries who are faced
with the prospect of apportioning liability between an injured plaintiff
and an innocent merchant.16
![Pless](/SiteCollectionImages/WisconsinLawyer/1998/08/pless.jpg) |
Erik J. Pless, U.W. 1993, is an attorney
with Dennisen, Kranzush, Mahoney & Ewald S.C., Green Bay. He
practices in civil litigation, primarily defending insurance companies
and their insureds. |
A more radical solution simply would be to
revise substantive Wisconsin law to completely eliminate the defense of
contributory negligence in product liability cases and institute a
system of absolute liability for all those who are in the chain of
distribution, from manufacturer to merchant. This would require a
partial overruling of Dippel by legislative or judicial fiat to
eliminate contributory negligence that normally would be an integral
part of products cases.
Such a radical solution under the blanket concept of "social
responsibility" would place liability on defendants who profited from
the product's sale without regard to any contributory negligence of the
plaintiff. This strikes at the heart of public policy arguments of who
should bear responsibility in our society for injuries to a consumer by
a defective product. In such a system of absolute liability, the jury
would not even be asked to consider the plaintiff's negligence. The
burden in such a system would be on the plaintiff simply to prove the
five elements of Section 402A and any resulting damages. However, until
the Wisconsin Supreme Court or the Legislature makes such a substantive
change, Wisconsin trial courts and attorneys must wrestle to conform the
mandates of the new Wis. Stat. section 895.045 with existing product
liability law.
Conclusion
The revised section 895.045 directly benefits marginally responsible
defendants such as distributors and retailers, while still keeping alive
and well the theory of strict liability against product manufacturers.
Ultimately, the Wisconsin Supreme Court needs to clarify the extent and
the mechanics of the new statute's application. Until then, attorneys
bringing and defending such cases must pay close attention to how the
special verdict will be formulated and how the statute will affect not
only the amount of the plaintiff's recovery, but from whom the plaintiff
can recover. Simply being in the chain of distribution is not enough to
assure complete liability. Perhaps strict liability is not so strict any
more.
Endnotes
1Wis. Stat.
§ 895.045.
2The same problems potentially
would arise in any strict liability situation, such as a dog bite
case.
3Dippel v. Sciano, 37 Wis.
2d 443, 460-61, 155 N.W.2d 55, at 63 (1967).
4Id., 155 N.W.2d at 63.
(Emphasis in original.)
5St. Claire Hospital v.
Schmidt, 148 Wis. 2d 750, 759, 437 N.W. 228 (Ct. App. 1989).
Quoting Greiten v. La Dow, 70 Wis. 2d 589, 604, 235 N.W.2d 677,
686 (1975).
6See, Bittner v.
American Honda Motor Co., 194 Wis. 2d 122, 151, 533 N.W.2d 476
(1995), and Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342
N.W.2d 37 (1984).
7Charlesworth v. Frankenmuth
Mut. Ins. Co., No. 95-CV-446 (Wis. Cir. Ct. Outagamie County Sept.
26, 1996), and Scolman v. Sprinkmann & Sons, No.
95-CV-009783 (Wis. Cir. Ct. Milwaukee County July 19, 1996).
Charlesworthwas settled after the District III Court of Appeals
declined to accept an interlocutory appeal. Scolman has not
been appealed as of this writing.
8City of Franklin v. Badger
Ford, 58 Wis. 2d 641, 650-55, 207 N.W.2d 866 (1973).
9Wis. Stat. § 895.045(1).
10The legislative history of
section 895.045 provides absolutely no guidance as to the Legislature's
intent. However, during the hearings on the proposed elimination of
joint and several liability, the most ardent advocates of the change
were product manufacturers, dealers, and distributors.
11Dippel v.
Sciano, 37 Wis. 2d at 460, 155 N.W.2d at 63.
12Id., 155 N.W.2d at
63.
13A revised special verdict form
would be as follows:
Questions 1 through 5: The five elements of Restatement §
402A.
1. Product - defective condition?
2. Product - unreasonably dangerous?
3. Defect a cause?
4. Is defendant in the business of manufacturing, selling,
distributing product? (If necessary, per defendant.)
5. Product reached plaintiff without substantial change? (If
necessary.)
The questions regarding plaintiff's negligence remain the same.
6. Was plaintiff negligent?
7. Was such negligence a cause?
The apportionment question would then follow:
8. If your answers to questions 1 - 5 and 7 are in the affirmative,
you must answer the following question:
Assuming the total liability that caused the plaintiff's injuries to
be 100 percent, what percentage do you apportion to the following:
A. Plaintiff
B. Manufacturer
C. Distributor
D. Employer
E. Whoever else might be on the verdict form.
9. Damages, consortium, and so on.
14All potential tort-feasors,
whether a party or not, are to be included in the special verdict form.
Connar v. West Shore Equip., 68 Wis. 2d 42, 45, 227 N.W.2d 660
(1975). See also Reiter v. Dyken, 95 Wis. 2d 461, 290
N.W.2d 510 (1980).
15Of course, if a seller or
distributor was actively negligent in assembling, repairing, or failing
to inspect an obviously defective product, a common law negligence cause
of action still would be viable. This article focuses on the theory of
strict liability for simply being in the product's chain of
distribution.
16Such an argument should be
crafted with care to avoid running afoul of Wisconsin's prohibition on
informing jurors of the effect of their decisions. Perhaps the argument
for a merchant's responsibility should focus not upon the effect of the
apportionment, but upon the marketing efforts and advertising language
used, the number of products sold, the profit from each sale, and the
total profit of the merchant or wholesaler. Alternatively, plaintiff
attorneys could argue equal responsibility for all who put the defective
product into the unwary consumer's hands.Wis. Stat. § 895.045.
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