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:

1. the product was defective when it left seller's possession;
2. the product was unreasonably dangerous;
3. the defect caused the injuries;
4. the seller engaged in business of selling product; and
5. 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

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

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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.

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