895.045(1)
(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% 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% or more shall be jointly and severally liable for the damages allowed.
895.045(2)
(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. 895.85 (5).
895.045 Cross-reference
Cross-reference: See s.
891.44 for conclusive presumption that child under 7 cannot be guilty of contributory negligence.
895.045 Annotation
Ordinary negligence can be compared with negligence founded upon the safe-place statute, and in making such comparison in a safe-place case, violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. [Language in Maus v. Bloss, 265 W 627, if construed as supporting a contrary proposition, is overruled.] It is not prejudicial error not to call attention to the different standards of care in a safe-place case when instruction number 1580 is used. Lovesee v. Allied Development Corp. 45 W (2d) 340, 173 NW (2d) 196.
895.045 Annotation
The court refuses to adopt the doctrine of pure comparative negligence. Vincent v. Pabst Brewing Co. 47 W (2d) 120, 177 NW (2d) 513.
895.045 Annotation
A distinction between active and passive negligence as to responsibility for injury and full indemnity to the tort-feasor whose negligence was passive was rejected by the court. Pachowitz v. Milwaukee & S. Transport Corp. 56 W (2d) 383, 202 NW (2d) 268.
895.045 Annotation
For the purpose of applying the comparative negligence statute, both the causes of action for medical expenses and loss of consortium shall be deemed derivative; and the causal negligence of the injured spouse shall bar or limit the recovery of the claiming spouse pursuant to the terms of the statute. White v. Lunder, 66 W (2d) 563, 225 NW (2d) 442.
895.045 Annotation
The contributory negligence of the plaintiff spectator in viewing the race from the north end of the track opposite the 3rd and 4th turns was not greater than defendants' negligence as a matter of law where she did not realize that watching from the 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 was watching the race closely immediately prior to the accident. Kaiser v. Cook, 67 W (2d) 460, 227 NW (2d) 50.
895.045 Annotation
The trial court's denial of defendants' motion to direct the jury to consider the employer's negligence in its special verdict was error even though the employer's liability extended only to workmen's compensation. Connar v. West Shore Equipment, 68 W (2d) 42, 227 NW (2d) 660.
895.045 Annotation
The trial court's instruction to the jury to compute not all the damages plaintiff suffered but only that portion caused by defendant's negligence was erroneous, because this section requires the jury to find 100% of plaintiff's damages, which are then reduced by the amount of his contributory negligence; but the erroneous instruction was not prejudicial where nothing in the record indicates a probability of the instruction having affected the allocation of 57% negligence to plaintiff. Nimmer v. Purtell, 69 W (2d) 21, 230 NW (2d) 258.
895.045 Annotation
Insufficiently guarded swimming pool may constitute attractive nuisance. McWilliams v. Gazinski, 71 W (2d) 57, 237 NW (2d) 437.
895.045 Annotation
When 2 grounds of negligence are alleged it does not categorically follow that the plaintiff must always elect one of the 2 grounds of negligence for submission to the jury. Negligence per se discussed. Howes v. Deere & Co. 71 W (2d) 268, 238 NW (2d) 76.
895.045 Annotation
Conduct constituting implied or tacit assumption of risk is no longer bar to action for negligence. Polsky v. Levine, 73 W (2d) 547, 263 NW (2d) 204.
895.045 Annotation
Record of rear-end collision case contained credible evidence that plaintiff executed maneuvers which could not be done with reasonable safety and failed to signal before executing them, which supported finding of 50% causal negligence. Thompson v. Howe, 77 W (2d) 441, 253 NW (2d) 59.
895.045 Annotation
Injured minor cannot be charged with contributory negligence when employment is in violation of child labor law. Tisdale v. Hasslinger, 79 W (2d) 194, 255 NW (2d) 314.
895.045 Annotation
Where court grants judgment notwithstanding verdict regarding 2 of several defendants found causally negligent, and percentage of negligence reallocated affects damages but not liability, plaintiffs should be given option of proportional reduction of judgment or new trial. Chart v. Gen. Motors Corp. 80 W (2d) 91, 258 NW (2d) 680.
895.045 Annotation
If court can find as matter of law that party is causally negligent, contrary to jury's answer, and jury attributes some degree of comparative negligence to that party, court should change causal negligence answer and permit jury's comparison to stand. Ollinger v. Grall, 80 W (2d) 213, 258 NW (2d) 693.
895.045 Annotation
Where blowing snow obstructed driver's vision, driver did not reduce speed, and parked truck on highway "loomed up" out of snow, driver was causally negligent as matter of law. Nelson v. Travelers Ins. Co. 80 W (2d) 272, 259 NW (2d) 48.
895.045 Annotation
Rescue doctrine and emergency doctrine discussed. Cords v. Anderson, 80 W (2d) 525, 259 NW (2d) 672.
895.045 Annotation
Negligence of tort-feasor dismissed from lawsuit on summary judgment as being less or equally negligent as plaintiff can be considered by jury in apportioning total causal negligence of remaining parties. Gross v. Midwest Speedways, Inc. 81 W (2d) 129, 260 NW (2d) 36.
895.045 Annotation
Collateral source rule and defense of superseding cause discussed. Rixmann v. Somerset Public Schools, 83 W (2d) 571, 266 NW (2d) 326 (1978).
895.045 Annotation
Negligence per se arising out of breach of safety statute may be compared with common law negligence. Locicero v. Interpace Corp. 83 W (2d) 876, 266 NW (2d) 423 (1978).
895.045 Annotation
In safe place case, comparative negligence instructions need not direct jury to consider defendant's higher duty of care. Brons v. Bischoff, 89 W (2d) 80, 277 NW (2d) 854 (1979).
895.045 Annotation
Motorist injured while fleeing police was, as matter of law, more negligent than pursuing officer. Brunette v. Employers Mut. Liability Ins. Co. 107 W (2d) 361, 320 NW (2d) 43 (Ct. App. 1982).
895.045 Annotation
Corporation which acquired substantially all assets of predecessor sole proprietorship but which is substantially same business organization and manufactures almost identical product as its predecessor may be liable for injuries caused by defective product manufactured by predecessor. Tift v. Forage King Industries, Inc. 108 W (2d) 72, 322 NW (2d) 14 (1982).
895.045 Annotation
Exculpatory contract was unenforceable where contract contained false statement that defendant had no insurance. Merten v. Nathan, 108 W (2d) 205, 321 NW (2d) 173 (1982).
895.045 Annotation
Failure to give jury emergency instruction was reversible error, despite plaintiff's violation of several safety statutes. Westfall v. Kottke, 110 W (2d) 86, 328 NW (2d) 481 (1983).
895.045 Annotation
Tort of parent's negligent control of child compared to negligent entrustment to child of dangerous instrumentality. Bankert v. Threshermen's Mut. Ins. Co. 110 W (2d) 469, 329 NW (2d) 150 (1983).
895.045 Annotation
Boys on pier should have foreseen that grabbing towel from bikini-clad girl would embarrass her and cause her to dive into water without pausing to ascertain its shallow depth. LePoidevin v. Wilson, 111 W (2d) 116, 330 NW (2d) 555 (1983).
895.045 Annotation
Exculpatory contract signed by husband did not bar wife's suit for loss of consortium. Broad and general contract bars only claims within contemplation of parties at time of execution. Arnold v. Shawano County Agr. Society, 111 W (2d) 203, 330 NW (2d) 773 (1983).
895.045 Annotation
Attorney was not immunized from liability in tort action for abuse of process. Strid v. Converse, 111 W (2d) 418, 331 NW (2d) 350 (1983).
895.045 Annotation
Beneficiary of will may maintain action against attorney who negligently drafted or supervised execution of will even though not in privity with attorney. Auric v. Continental Cas. Co. 111 W (2d) 507, 331 NW (2d) 325 (1983).
895.045 Annotation
Accountant may be held liable to third party not in privity for negligent preparation of audit report. Citizens State Bank v. Timm, Schmidt & Co. 113 W (2d) 376, 335 NW (2d) 361 (1983).
895.045 Annotation
"Seat belt negligence" and "passive negligence" distinguished. Jury instructions regarding seat belts recommended. Method for apportioning damages in seat belt negligence cases adopted. Foley v. City of West Allis, 113 W (2d) 475, 335 NW (2d) 824 (1983).
895.045 Annotation
Bus driver who told 11-year-old he could not ride school bus next day but did not inform either school or parents of action was 93% liable for injuries sustained by boy while riding bicycle to school next day. Toeller v. Mutual Serv. Casualty Ins. Co. 115 W (2d) 631, 340 NW (2d) 923 (Ct. App. 1983).
895.045 Annotation
Minor child may recover for loss of care, society, companionship, protection, training and guidance of parent due to negligent acts of third party. Theama v. City of Kenosha, 117 W (2d) 508, 344 NW (2d) 513 (1984).
895.045 Annotation
Exculpatory clause in Yellow Pages contract is unenforceable. Discount Fabric House v. Wis. Tel. Co. 117 W (2d) 587, 345 NW (2d) 417 (1984).
895.045 Annotation
Due to public policy reasons tortfeasor was immune from liability. Sanem v. Home Ins. Co. 119 W (2d) 530, 350 NW (2d) 89 (1984).
895.045 Annotation
In "second collision" products liability case, plaintiff must prove that defective product was substantial factor in causing injury. Court upholds verdict finding plaintiff passenger not negligent for failing to wear seat belt. Sumnicht v. Toyota Motor Sales, 121 W (2d) 338, 360 NW (2d) 2 (1984).
895.045 Annotation
Plaintiff's mental distress regarding possibility of future surgery was compensable even though plaintiff's doctor was not able to testify that surgery was reasonably probable. Brantner v. Jenson, 121 W (2d) 658, 360 NW (2d) 529 (1985).
895.045 Annotation
In negligence actions, emotional distress must be manifested by physical injury, e. g. hysteria. Garrett v. City of New Berlin, 122 W (2d) 223, 362 NW (2d) 137 (1985).
895.045 Annotation
Court declines to adopt "product line" or "expanded continuation" exceptions to rule of successor corporation nonliability for defective products manufactured by predecessor. Fish v. Amsted Industries, Inc. 126 W (2d) 293, 376 NW (2d) 820 (1985).
895.045 Annotation
Where decedent's negligence was greater than any individual tortfeasor's, this section bars recovery under 895.04 (7). Delvaux v. Vanden Langenberg, 130 W (2d) 464, 387 NW (2d) 751 (1986).
895.045 Annotation
Negligent tortfeasor has right to indemnity from intentional joint tortfeasor. Pierringer release of intentional tortfeasor absolved negligent tortfeasor. Fleming v. Threshermen's Mut. Ins. Co., 131 W (2d) 123, 388 NW (2d) 908 (1986).
895.045 Annotation
Punitive damages may not be recovered where actual damages are unavailable due to this section. Tucker v. Marcus, 142 W (2d) 425, 418 NW (2d) 818 (1988).
895.045 Annotation
Psychotherapist's duty to third parties for intentional behavior of dangerous patients discussed. Schuster v. Altenberg, 144 W (2d) 223, 424 NW (2d) 159 (1988).
895.045 Annotation
This section is inapplicable to the equitable resolution of a subrogation dispute. Ives v. Coopertools, 197 W (2d) 938, 541 NW (2d) 247 (Ct. App. 1995).
895.045 Annotation
Where plaintiff's negligence was greater than any injurer's, neither plaintiff nor plaintiff's spouse could recover. Spearing v. National Iron Co. 770 F (2d) 87 (1985).
895.045 Annotation
Proportioning comparative negligence-problems of theory and special verdict formulation. Aiken, 53 MLR 293.
895.045 Annotation
From defect to cause to comparative fault—Rethinking some product liability concepts. Twerski, 60 MLR 297.
895.045 Annotation
The problem of the insolvent contributor. Myse, 60 MLR 891.
895.045 Annotation
Punitive damage recovery in products liability cases. Ghiardi and Kircher, 65 MLR 1 (1981).
895.045 Annotation
The concepts of "defective condition" and "unreasonably dangerous" in products liability law. Swartz, 66 MLR 280 (1983).
895.045 Annotation
Seat belt negligence: The ambivalent Wisconsin rules. McChrystal. 68 MLR 539 (1985).
895.045 Annotation
Second collision law - Wisconsin. Ghiardi. 69 MLR 1 (1985).
895.045 Annotation
Comparative Negligence in Wisconsin. Horowitz, WBB Jan. 1981.
895.045 Annotation
Plaintiff's failure to wear a safety belt. Towers, WBB July, 1985.
895.045 Annotation
Strict products liability in Wisconsin. 1977 WLR 227.
895.045 Annotation
Wisconsin's Modified, Modified Comparative Negligence Law. Kircher. Wis. Law. Feb. 1996.
895.045 Annotation
Enforceable Exculpatory Agreements. Pendleton. Wis. Law. Nov. 1997.
895.045 Annotation
Wisconsin's Comparative Negligence Statute: Applying It to Products Liability Cases Brought under a Strict Liability Theory. Pless. Wis. Law. Aug. 1998.
895.048
895.048
Recovery by auto or motorboat owner limited. The owner of a motor vehicle or motorboat which, while being operated by the spouse or minor child of such owner, is damaged as the result of an accident involving another vehicle or boat, may not recover from the owner or operator of such other vehicle or boat for such damages, if the negligence of such spouse or minor child exceeds that of the operator of such other vehicle or boat. In the event that it is judicially determined that a spouse or minor operator of the motor vehicle or motorboat is found to be guilty of less than 50% of the causal negligence involved in an accident, then in that event the owner of the motor vehicle or motorboat involved shall be entitled to recover in accordance with the contributory negligence principles as laid down in
s. 895.045. For the purposes of recovery of damages by the owner under
s. 895.048, and for this purpose only, the negligence of the spouse or minor operator shall be imputed to the owner.
895.05
895.05
Damages in actions for libel. 895.05(1)
(1) The proprietor, publisher, editor, writer or reporter upon any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judicial, legislative or other public official proceeding authorized by law or of any public statement, speech, argument or debate in the course of such proceeding. This section shall not be construed to exempt any such proprietor, publisher, editor, writer or reporter from liability for any libelous matter contained in any headline or headings to any such report, or to libelous remarks or comments added or interpolated in any such report or made and published concerning the same, which remarks or comments were not uttered by the person libeled or spoken concerning the person libeled in the course of such proceeding by some other person.
895.05(2)
(2) Before any civil action shall be commenced on account of any libelous publication in any newspaper, magazine or periodical, the libeled person shall first give those alleged to be responsible or liable for the publication a reasonable opportunity to correct the libelous matter. Such opportunity shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty. The first issue published after the expiration of one week from the receipt of such notice shall be within a reasonable time for correction. To the extent that the true facts are, with reasonable diligence, ascertainable with definiteness and certainty, only a retraction shall constitute a correction; otherwise the publication of the libeled person's statement of the true facts, or so much thereof as shall not be libelous of another, scurrilous, or otherwise improper for publication, published as the libeled person's statement, shall constitute a correction within the meaning of this section. A correction, timely published, without comment, in a position and type as prominent as the alleged libel, shall constitute a defense against the recovery of any damages except actual damages, as well as being competent and material in mitigation of actual damages to the extent the correction published does so mitigate them.
895.05 History
History: 1993 a. 486.
895.05 Annotation
One who contributes nondefamatory photograph of plaintiff to newspaper to accompany defamatory article is not liable, absent knowledge or control of article. Westby v. Madison Newspapers, Inc. 81 W (2d) 1, 259 NW (2d) 691.
895.05 Annotation
Newscaster did not act with knowledge of falsity or with reckless disregard for truth by broadcasting that plaintiff had been charged with crime where newscaster was told by deputy sheriff that charges would be filed. Prahl v. Brosamle, 98 W (2d) 130, 295 NW (2d) 768 (Ct. App. 1980).
895.05 Annotation
Contract printer had no reason to know of libel and so was entitled to summary judgment. Maynard v. Port Publications, Inc. 98 W (2d) 555, 297 NW (2d) 500 (1980).
895.05 Annotation
Sub. (2) applies to non-media defendants but relates only to libelous publications in print media, not broadcast media. Hucko v. Jos. Schlitz Brewing Co. 100 W (2d) 372, 302 NW (2d) 68 (Ct. App. 1981).
895.05 Annotation
Trial court properly dismissed defamation claim based on letter by medical director charging that foundation conducted sham nonprofit operation since director established defense of truth. Fields Foundation, Ltd. v. Christensen, 103 W (2d) 465, 309 NW (2d) 125 (Ct. App. 1981).
895.05 Annotation
See note to Art. I, sec. 3, citing Denny v. Mertz, 106 W (2d) 636, 318 NW (2d) 141 (1982).
895.05 Annotation
Where former legislator who had gained notoriety within district while in office was allegedly defamed in radio broadcast localized within former district, former legislator was "public figure" for purpose of defamation action. Lewis v. Coursolle Broadcasting, 127 W (2d) 105, 377 NW (2d) 166 (1985).
895.05 Annotation
A computer bulletin board is not a periodical and not subject to sub. (2). It's In the Cards, Inc. v. Fuschetto, 193 W (2d) 429, 535 NW (2d) 11 (Ct. App. 1995).
895.05 Annotation
Where a defamation plaintiff is a public figure there must be proof of actual malice. The deliberate choice of one interpretation of a number of possible interpretations does not create a jury issue of actual malice. The selective destruction by a defendant of materials likely to be relevant to defamation litigation allows an inference that the materials would have provided evidence of actual malice, but the inference is of little weight when uncontroverted testimony makes the malice assertion a remote possibility. Torgerson v. Journal/Sentinel, Inc. 210 W (2d) 525, 563 NW (2d) 472 (1997).
895.05 Annotation
Publishers' privileges and liabilities regarding libel discussed. Gertz v. Robert Welch, Inc. 418 US 323.
895.05 Annotation
Public figure who sues media companies for libel may inquire into editorial processes of those responsible where proof of "actual malice" is required for recovery. Herbert v. Lando, 441 US 153 (1979).
895.05 Annotation
"Public figure" principle in libel cases discussed. Wolston v. Reader's Digest Assn., Inc. 443 US 157 (1979).
895.05 Annotation
Where wire services' accounts of judge's remarks were substantially accurate, defamation suit by judge was barred under (1). Simonson v. United Press Intern., Inc. 500 F Supp 1261 (1980).
895.05 Annotation
Defamation law of Wisconsin. Brody, 65 MLR 505 (1982).
895.05 Annotation
The "public interest or concern" test: Have we resurrected a standard that should have remained in the graveyard? 70 MLR 647 (1987).
895.052
895.052
Defamation by radio and television. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employes of any such owner, licensee or operator, shall not be liable in damages for any defamatory statement published or uttered in, or as a part of, a visual or sound broadcast by a candidate for political office in those instances in which, under the acts of congress or the rules and regulations of the federal communications commission, the broadcasting station or network is prohibited from censoring the script of the broadcast.
895.055
895.055
Gaming contracts void. 895.055(1)
(1) All promises, agreements, notes, bills, bonds, or other contracts, mortgages, conveyances or other securities, where the whole or any part of the consideration of the promise, agreement, note, bill, bond, mortgage, conveyance or other security shall be for money or other valuable thing whatsoever won or lost, laid or staked, or betted at or upon any game of any kind or under any name whatsoever, or by any means, or upon any race, fight, sport or pastime, or any wager, or for the repayment of money or other thing of value, lent or advanced at the time and for the purpose, of any game, play, bet or wager, or of being laid, staked, betted or wagered thereon shall be void.
895.055(2)
(2) This section does not apply to contracts of insurance made in good faith for the security or indemnity of the party insured.
895.055(3)
(3) This section does not apply to any promise, agreement, note, bill, bond, mortgage, conveyance or other security that is permitted under
chs. 562 to
569 or under state or federal laws relating to the conduct of gaming on Indian lands.
895.055 Annotation
Puerto Rican judgment based on gambling debt was entitled to full faith and credit in Wisconsin. Conquistador Hotel Corp. v. Fortino, 99 W (2d) 16, 298 NW (2d) 236 (Ct. App. 1980).
