895.04 Annotation
Sub. (4) does not: 1) nullify the state constitutional right to have a jury assess damages under Art. I, s 5; 2) violate separation of powers principles by blurring the boundaries between judicial and legislative branches; 3) violate constitutional equal protection guarantees; and 4) does not violate substantive due process. Maurin v. Hall, 2004 WI 100,
274 Wis. 2d 28,
682 N.W.2d 866,
00-0072. Partially overruled on other grounds. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91,
04-2592.
895.04 Annotation
The rule that one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole is applicable in wrongful death actions. Wrongful death plaintiffs are entitled to be made whole for their losses, but not more than whole. To the extent that wrongful death plaintiffs receive a portion of damages for expenses they have not incurred after having been made whole, they have been unjustly enriched. Petta v. ABC Insurance Co. 2005 WI 18,
278 Wis. 2d 251,
692 N.W.2d 639,
03-0610.
895.04 Annotation
The jury award of noneconomic damages for pre-death claims, namely the claim for the decedent's pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, s. 893.55, and not the wrongful death statute, this section. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, ___ Wis. 2d ___,
717 N.W.2d 216,
04-2592.
895.04 Annotation
There may not be separate recovery for both an estate and its beneficiaries. Bell v. City of Milwaukee,
746 F.2d 1205 (1984).
895.04 Annotation
Expanding and limiting damages for pecuniary injury due to wrongful death. Schoone, 1972 WBB No. 4.
895.04 Annotation
Cause of action by parents sustained for loss of society and companionship of child tortiously injured. 1976 WLR 641.
895.043(1)(a)
(a) "Defendant" means the party against whom punitive damages are sought.
895.043(1)(b)
(b) "Double damages" means those court awards made under a statute providing for twice, 2 times or double the amount of damages suffered by the injured party.
895.043(1)(c)
(c) "Plaintiff" means the party seeking to recover punitive damages.
895.043(1)(d)
(d) "Treble damages" means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.
895.043(2)
(2) Scope. This section does not apply to awards of double damages or treble damages, or to the award of exemplary damages under
ss. 46.90 (9) (a) and
(b),
51.30 (9),
51.61 (7),
55.043 (9m) (a) and
(b),
103.96 (2),
134.93 (5),
146.84 (1) (b) and
(bm),
153.85,
252.14 (4),
252.15 (8) (a),
610.70 (7) (b),
943.245 (2) and
(3) and
943.51 (2) and
(3).
895.043(3)
(3) Standard of conduct. The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
895.043(4)
(4) Procedure. If the plaintiff establishes a prima facie case for the allowance of punitive damages:
895.043(4)(a)
(a) The plaintiff may introduce evidence of the wealth of a defendant; and
895.043(4)(b)
(b) The judge shall submit to the jury a special verdict as to punitive damages or, if the case is tried to the court, the judge shall issue a special verdict as to punitive damages.
895.043(5)
(5) Application of joint and several liability. The rule of joint and several liability does not apply to punitive damages.
895.043 History
History: 1995 a. 17;
1997 a. 71;
1999 a. 79;
2005 a. 155 s.
71; Stats. 2005 s. 895.043;
2005 a. 388 s.
216.
895.043 Note
NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85 [now s. 895.043].
895.043 Annotation
Punitive damages may be awarded in products liability cases. Judicial controls over punitive damage awards are established. Wangen v. Ford Motor Co.
97 Wis. 2d 260,
294 N.W.2d 437 (1980).
895.043 Annotation
Guidelines for submission of punitive damages issues to the jury in a products liability case are discussed. Walter v. Cessna Aircraft Co.
121 Wis. 2d 221,
358 N.W.2d 816 (Ct. App. 1984).
895.043 Annotation
In awarding punitive damages, the factors to be considered are: 1) the grievousness of the wrongdoer's acts; 2) the degree of malicious intent; 3) the potential damage that might have been caused by the acts; and 4) the defendant's ability to pay. An award is excessive if it inflicts a punishment or burden that is disproportionate to the wrongdoing. That a judge provided a means for the defendant to avoid paying the punitive damages awarded did not render the award invalid. Gianoli v. Pfleiderer,
209 Wis. 2d 509,
563 N.W.2d 562 (Ct. App. 1997),
95-2867.
895.043 Annotation
Nominal damages may support a punitive damage award in an action for intentional trespass. A grossly excessive punishment violates due process. Whether punitive damages violate due process depends on: 1) the reprehensibility of the conduct; 2) the disparity between the harm suffered and the punitive damages awarded; and 3) the difference between the award and other civil or criminal penalties authorized or imposed. Jacque v. Steenberg Homes,
209 Wis. 2d 605,
563 N.W.2d 154 (1997),
95-1028.
895.043 Annotation
A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee,
217 Wis. 2d 378,
571 N.W.2d 23 (1998),
97-0353.
895.043 Annotation
The requirement under sub. (3) that the defendant act "in an intentional disregard of the rights of the plaintiff" necessitates that the defendant act with a purpose to disregard the plaintiff's rights or be aware that his or her conduct is substantially certain to result in the plaintiff's rights being disregarded. The act or course of conduct must be deliberate and must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right. There is no requirement of intent to injure or cause harm. Wischer v. Mitsubishi Heavy Industries America, Inc. 2005 WI 26,
279 Wis. 2d 6,
694 N.W.2d 320,
01-0724.
895.043 Annotation
A defendant's conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute. Wischer v. Mitsubishi Heavy Industries America, Inc. 2005 WI 26,
279 Wis. 2d 6,
694 N.W.2d 320,
01-0724.
895.043 Annotation
The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Unified Catholic Schools of Beaver Dam Education Association v. Universal Card Services Corp.
34 F. Supp. 2d 714, (1999).
895.043 Annotation
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
895.045
895.045
Contributory negligence. 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. 895.043 (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 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).
895.045 Annotation
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).
895.045 Annotation
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).
895.045 Annotation
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).
895.045 Annotation
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 she was watching the race closely immediately prior to the accident. Kaiser v. Cook,
67 Wis. 2d 460,
227 N.W.2d 50 (1975).
895.045 Annotation
The trial court's denial of a motion by 2 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 error. Connar v. West Shore Equipment,
68 Wis. 2d 42,
227 N.W.2d 660 (1975).
895.045 Annotation
The trial court's instruction to the jury not to compute all of the damages plaintiff suffered, but only that portion caused by the defendant's negligence, was erroneous. This section requires the jury to find 100% 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).
895.045 Annotation
Conduct constituting implied or tacit assumption of risk is not a bar to an action for negligence. Polsky v. Levine,
73 Wis. 2d 547,
263 N.W.2d 204 (1976).
895.045 Annotation
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).
895.045 Annotation
When the court granted judgment notwithstanding the verdict regarding 2 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).
895.045 Annotation
If a court can find as 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).
895.045 Annotation
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 Ins. Co.
80 Wis. 2d 272,
259 N.W.2d 48 (1977).
895.045 Annotation
The "emergency doctrine" relieves a person for liability for his actions when that person is faced with a sudden emergency he or she 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).
895.045 Annotation
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).
895.045 Annotation
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).
895.045 Annotation
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).
895.045 Annotation
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).
895.045 Annotation
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.
107 Wis. 2d 361,
320 N.W.2d 43 (Ct. App. 1982).
895.045 Annotation
Failure to give the jury an emergency instruction was reversible error, despite the plaintiff's violation of several safety statutes. When an emergency instruction is appropriate is discussed. Westfall v. Kottke,
110 Wis. 2d 86,
328 N.W.2d 481 (1983).
895.045 Annotation
"Seat belt negligence" and "passive negligence" are distinguished. Jury instructions regarding seat belts are recommended. A method for apportioning damages in seat belt negligence cases is adopted. Foley v. City of West Allis,
113 Wis. 2d 475,
335 N.W.2d 824 (1983).
895.045 Annotation
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% 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).
895.045 Annotation
Recovery under s.895.04 (7) is barred by this section if a decedent's negligence was greater than any individual tortfeasor's. Delvaux v. Vanden Langenberg,
130 Wis. 2d 464,
387 N.W.2d 751 (1986).
895.045 Annotation
A negligent tortfeasor has the right to indemnity from an intentional joint tortfeasor. A Pierringer 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).
895.045 Annotation
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).
895.045 Annotation
This section is inapplicable to the equitable resolution of a subrogation dispute. Ives v. Coopertools,
197 Wis. 2d 938,
541 N.W.2d 247 (Ct. App. 1995).
895.045 Annotation
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.
895.045 Annotation
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.
895.045 Annotation
Only a tortfeasor found to be 51% 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.
895.045 Annotation
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).
895.045 Annotation
The Due Process Clause of the 14th Amendment 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.
895.045 Annotation
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 110, ___ Wis. 2d ___,
718 N.W.2d 281,
05-1030.
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.
895.049
895.049
Recovery by a person who fails to use protective headgear while operating certain motor vehicles. Notwithstanding
s. 895.045, failure by a person who operates or is a passenger on a motorcycle, as defined in
s. 340.01 (32), an all-terrain vehicle, as defined in
s. 340.01 (2g), or a snowmobile, as defined in
s. 340.01 (58a), on or off a highway, to use protective headgear shall not reduce recovery for injuries or damages by the person or the person's legal representative in any civil action. This section does not apply to any person required to wear protective headgear under
s. 23.33 (3g) or
347.485 (1).
895.049 History
History: 2003 a. 148.
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 a nondefamatory photograph of the plaintiff to a newspaper to accompany a defamatory article is not liable absent knowledge or control of the article. Westby v. Madison Newspapers, Inc.
81 Wis. 2d 1,
259 N.W.2d 691 (1977).
895.05 Annotation
A newscaster did not act with knowledge of falsity or with reckless disregard for the truth by broadcasting that the plaintiff had been charged with a crime when the newscaster was told by a deputy sheriff that charges would be filed. Prahl v. Brosamle,
98 Wis. 2d 130,
295 N.W.2d 768 (Ct. App. 1980).
895.05 Annotation
A contract printer had no reason to know of libel and was entitled to summary judgment. Maynard v. Port Publications, Inc.
98 Wis. 2d 555,
297 N.W.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 Wis. 2d 372,
302 N.W.2d 68 (Ct. App. 1981).
