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Wisconsin's Comparative Negligence Statute:
Applying It to Products Liability Cases Brought
Under a Strict Liability Theory

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

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.

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

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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.