2023 Wisconsin Statutes & Annotations › Chapter 895 - Damages, liability, and miscellaneous provisions regarding actions in courts. › 895.045 - Contributory negligence.

895.045
Contributory negligence.
(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.
(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).
(3)
Product liability.
(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.
(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.
(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.
(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.
(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.
(f)
This subsection does not apply to actions based on negligence or a breach of warranty.
History:  1971 c. 47; 1993 a. 486; 1995 a. 17; 2005 a. 155; 2011 a. 2.
Cross-reference:  See s. 891.44 for the conclusive presumption that a child under seven years old cannot be guilty of contributory negligence.
Ordinary 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).
Adopting 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).
There 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).
For 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).
The 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).
The 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).
The 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).
Conduct 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).
A 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).
When 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).
If 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).
When 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).
The “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).
The 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).
Negligence 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).
Contributory 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).
In 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).
A 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).
Failure 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).
Distinguishing “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).
A 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).
Recovery 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).
A 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).
Punitive 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).
This 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).
The 1995 amendment of sub. (1) does not apply to strict product liability actions. Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, 244 Wis. 2d 758, 628 N.W.2d 833, 98-2419.
Retroactive application of the 1995 amendment of this section was unconstitutional. Matthies v. Positive Safety Manufacturing Co., 2001 WI 82, 244 Wis. 2d 720, 628 N.W.2d 842, 99-0431.
Only 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.
The 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.
When 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.
Sub. (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.
Sub. (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.
Sub. (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.
When 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).
Proportioning Comparative Negligence—Problems of Theory and Special Verdict Formulation. Aiken. 53 MLR 293 (1970).
From Defect to Cause to Comparative Fault—Rethinking Some Product Liability Concepts. Twerski. 60 MLR 297 (1977).
The Problem of the Insolvent Contributor. Myse. 60 MLR 891 (1977).
Punitive Damage Recovery in Products Liability Cases. Ghiardi & Kircher. 65 MLR 1 (1981).
The Concepts of “Defective Condition" and “Unreasonably Dangerous" in Products Liability Law. Swartz. 66 MLR 280 (1983).
Seat Belt Negligence: The Ambivalent Wisconsin Rules. McChrystal. 68 MLR 539 (1985).
Second Collision Law—Wisconsin. Ghiardi. 69 MLR 1 (1985).
Strict Products Liability in Wisconsin. Severson. 1977 WLR 227.
Comparative Negligence in Wisconsin. Horowitz. WBB Jan. 1981.
Plaintiff's failure to wear a safety belt. Towers. WBB July 1985.
Wisconsin's Modified, Modified Comparative Negligence Law. Kircher. Wis. Law. Feb. 1996.
Enforceable Exculpatory Agreements. Pendleton. Wis. Law. Nov. 1997.
Wisconsin's Comparative Negligence Statute: Applying It to Products Liability Cases Brought Under a Strict Liability Theory. Pless. Wis. Law. Aug. 1998.