LRB-1927/1
RPN:wlj:rs
2005 - 2006 LEGISLATURE
February 15, 2005 - Introduced by Senators Kanavas, Grothman, Stepp, Kapanke,
Roessler
and Reynolds, cosponsored by Representatives Huebsch, Nischke,
Gundrum, Van Roy, Kestell, Hahn, Nerison, Gielow, Vos, Nass, Kreibich,
Vrakas, Pettis, Ott, Petrowski, Gunderson, Hines, McCormick, F. Lasee
and
Musser. Referred to Committee on Job Creation, Economic Development and
Consumer Affairs.
SB58,1,2 1An Act to create 895.045 (3) and 895.047 of the statutes; relating to: product
2liability of manufacturers, distributors, and sellers.
Analysis by the Legislative Reference Bureau
This bill establishes the criteria to determine if a product manufacturer,
distributor, or seller is liable to a person injured by the manufactured product based
on a claim of strict liability. Currently, a person injured by a manufactured product
has three avenues to determine if the manufacturer, distributor, or seller is liable for
the person's injury. The claimant may sue under a breach-of-warranty theory,
under the common law negligence theory, and under the theory of strict liability. The
doctrine of strict liability, as adopted in this state, applies to manufacturers,
distributors, and sellers. That doctrine relieves the injured person from proving
specific acts of negligence and protects that person from contractual defenses.
However, the person must prove that the product was in a defective condition and
unreasonably dangerous, the defective condition existed when it left the seller, the
defect caused the injury, the seller was engaged in the business of selling such
products, and the product was one that the seller expected to and did reach the
consumer without substantial change.
Under this bill, a manufacturer is liable for damages caused by the
manufacturer's product based on a claim of strict liability if the injured claimant
proves that the product was defective, the defective condition made the product
unreasonably dangerous, the defective condition existed at the time when the
product left the control of the manufacturer, the product reached the user or
consumer without substantial change, and the defective condition caused the
claimant's damages. The bill specifies when a manufactured product is defective.

Under the bill, a distributor or seller is not liable for the claimant's damages
based on a claim of strict liability unless the manufacturer would be liable for the
damages and any of the following applies:
1. The distributor or seller contractually assumed one of the manufacturer's
duties to manufacture, design, or provide warnings or instructions regarding the
product.
2. Neither the manufacturer nor its insurer is subject to service of process
within this state.
3. A court determines that the claimant would not be able to enforce a judgment
against the manufacturer or its insurer.
The bill requires the dismissal of the distributor or seller as defendants in an
action if the manufacturer or its insurer submits itself to the jurisdiction of the court
in which the suit is pending.
Under the bill, if a defendant proves that the injured person, at the time of his
or her injury from a manufactured product, had a blood alcohol concentration of 0.08
or more or was under the influence of any controlled substance or controlled
substance analog to the extent that he or she could not operate a motor vehicle safely,
that proof creates a rebuttable presumption that the intoxication or drug use was the
cause of the person's injury. The bill also creates a rebuttable presumption that the
manufactured product is not defective if the product complied with relevant
standards, conditions, or specifications under federal or state law. In addition, the
bill reduces the manufacturer's, seller's, or distributor's liability by the percentage
of causal responsibility for the claimant's damages caused by the claimant's misuse,
alteration, or modification of the product.
The bill requires the court to dismiss a claimant's action if the damage was
caused by an inherent characteristic of the manufactured product that would be
recognized by an ordinary person that uses or consumes the product. The bill relieves
a distributor or seller of liability if the distributor or seller receives the product in a
sealed container and has no opportunity to test or inspect the product.
Under the bill, evidence of remedial measures taken after the sale of the
manufactured product are not admissible in an action for damages caused by the
product based on a claim of strict liability for the purpose of showing a manufacturing
defect, a design defect, or the need for a warning or instruction, but may be admitted
to show that a reasonable alternative design existed at the time of the sale of the
product. The bill limits a defendant's liability for damage caused by a manufactured
product to those products manufactured within 15 years before the claim accrues
unless the manufacturer specifies that the product will last longer.
Under the bill, in product liability cases, to determine the causal responsibility
for the injury, the fact finder must determine what percentage of that causal
responsibility is the result of the contributory negligence of the injured party, the
defective condition of the product, and the contributory negligence of any third
person. The bill provides that, 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 recover from the
manufacturer or any other person responsible for placing the product in the stream

of commerce. If the injured party does have the right to recover, the injured party's
damages are diminished by the injured party's percentage of causal responsibility for
the injury. Under the bill, after determining the percentage of causal responsibility
for the injury that is the result of the defective condition of the product, the fact finder
is required to determine the percentage of causal responsibility of each product
defendant for the defective condition of the product. The judge, under the bill,
multiplies this percentage by the percentage of causal responsibility for the injury
that is the result of the defective condition of the product to determine an individual
product defendant's percentage of responsibility for the damages to the injured party.
Under the bill, a product defendant whose responsibility for the damages to the
injured party is 51 percent or more is jointly and severally liable for all of those
damages. The liability of a product defendant whose responsibility for the damages
to the injured party is less than 51 percent is limited to that product defendant's
percentage of responsibility for the damages. The bill also allows the injured party
to recovery from the product defendants even when 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.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB58, s. 1 1Section 1. 895.045 (3) of the statutes is created to read:
SB58,3,82 895.045 (3) Product liability. (a) In an action by any person to recover
3damages for injuries caused by a defective product based on a claim of strict liability,
4the fact finder shall first determine if the injured party has the right to recover
5damages. To do so, the fact finder shall determine what percentage of the total causal
6responsibility for the injury resulted from the contributory negligence of the injured
7person, what percentage resulted from the defective condition of the product, and
8what percentage resulted from the contributory negligence of any other person.
SB58,3,139 (b) If the injured party's percentage of total causal responsibility for the injury
10is greater than the percentage resulting from the defective condition of the product,
11the injured party may not recover from the manufacturer, distributor, seller, or any
12other person responsible for placing the product in the stream of commerce based on
13the defect in the product.
SB58,4,4
1(c) If the injured party's percentage of total causal responsibility for the injury
2is equal to or less than the percentage resulting from the defective condition of the
3product, the injured party may recover but the damages recovered by the injured
4party shall be diminished by the percentage attributed to that injured party.
SB58,4,195 (d) If multiple defendants are alleged to be responsible for the defective
6condition of the product, and the injured party is not barred from recovery under par.
7(b), the fact finder shall determine the percentage of causal responsibility of each
8product defendant for the defective condition of the product. The judge shall then
9multiply that percentage of causal responsibility of each product defendant for the
10defective condition of the product by the percentage of causal responsibility for the
11injury to the person attributed to the defective product. The result of that
12multiplication is the individual product defendant's percentage of responsibility for
13the damages to the injured party. A product defendant whose responsibility for the
14damages to the injured party is 51 percent or more of the total responsibility for the
15damages to the injured party is jointly and severally liable for all of the damages to
16the injured party. The responsibility of a product defendant whose responsibility for
17the damages to the injured party is less than 51 percent of the total responsibility
18for the damages to the injured party is limited to that product defendant's percentage
19of responsibility for the damages to the injured party.
SB58,4,2320 (e) If the injured party is not barred from recovery under par. (b), the fact that
21the injured party's causal responsibility for the injury is greater than an individual
22product defendant's responsibility for the damages to the injured party does not bar
23the injured party from recovering from that individual product defendant.
SB58,4,2524 (f) This subsection does not apply to actions based on negligence or a breach of
25warranty.
SB58, s. 2
1Section 2. 895.047 of the statutes is created to read:
SB58,5,5 2895.047 Product liability. (1) Liability of manufacturer. In an action for
3damages caused by a manufactured product based on a claim of strict liability, a
4manufacturer is liable to a claimant if the claimant establishes all of the following
5by a preponderance of the evidence:
SB58,5,176 (a) That the product is defective because it contains a manufacturing defect,
7is defective in design, or is defective because of inadequate instructions or warnings.
8A product contains a manufacturing defect if the product departs from its intended
9design even though all possible care was exercised in the manufacture of the product.
10A product is defective in design if the foreseeable risks of harm posed by the product
11could have been reduced or avoided by the adoption of a reasonable alternative
12design by the manufacturer and the omission of the alternative design renders the
13product not reasonably safe. A product is defective because of inadequate
14instructions or warnings only if the foreseeable risks of harm posed by the product
15could have been reduced or avoided by the provision of reasonable instructions or
16warnings by the manufacturer and the omission of the instructions or warnings
17renders the product not reasonably safe.
SB58,5,1918 (b) That the defective condition rendered the product unreasonably dangerous
19to persons or property.
SB58,5,2120 (c) That the defective condition existed at the time that the product left the
21control of the manufacturer.
SB58,5,2322 (d) That the product reached the user or consumer without substantial change
23in the condition in which it was sold.
SB58,5,2424 (e) That the defective condition was a cause of the claimant's damages.
SB58,6,3
1(2) Liability of seller or distributor. (a) A seller or distributor of a product
2is not liable based on a claim of strict liability to a claimant unless the manufacturer
3would be liable under sub. (1) and any of the following applies:
SB58,6,74 1. The claimant proves by a preponderance of the evidence that the seller or
5distributor has contractually assumed one of the manufacturer's duties to
6manufacture, design, or provide warnings or instructions with respect to the
7product.
SB58,6,98 2. The claimant proves by a preponderance of the evidence that neither the
9manufacturer nor its insurer is subject to service of process within this state.
SB58,6,1110 3. A court determines that the claimant would be unable to enforce a judgment
11against the manufacturer or its insurer.
SB58,6,1412 (b) The court shall dismiss a product seller or distributor as a defendant based
13on par. (a) 2. if the manufacturer or its insurer submits itself to the jurisdiction of the
14court in which the suit is pending.
SB58,6,20 15(3) Defenses. (a) If the defendant proves by clear and convincing evidence that
16at the time of the injury the claimant was under the influence of any controlled
17substance or controlled substance analog to the extent prohibited under s. 346.63 (1)
18(a), or had an alcohol concentration, as defined in s. 340.01 (1v), of 0.08 or more, there
19shall be a rebuttable presumption that the claimant's intoxication or drug use was
20the cause of his or her injury.
SB58,6,2421 (b) Evidence that the product, at the time of sale, complied in material respects
22with relevant standards, conditions, or specifications adopted or approved by a
23federal or state law or agency shall create a rebuttable presumption that the product
24is not defective.
SB58,7,4
1(c) The damages for which a manufacturer, seller, or distributor would
2otherwise be liable shall be reduced by the percentage of causal responsibility for the
3claimant's harm attributable to the claimant's misuse, alteration, or modification of
4a product.
SB58,7,85 (d) The court shall dismiss the claimant's action under this section if the
6damage was caused by an inherent characteristic of the product that would be
7recognized by an ordinary person with ordinary knowledge common to the
8community that uses or consumes the product.
SB58,7,119 (e) A seller or distributor of a product is not liable to a claimant for damages
10if the seller or distributor receives the product in a sealed container and has no
11reasonable opportunity to test or inspect the product.
SB58,7,18 12(4) Subsequent remedial measures. In an action for damages caused by a
13manufactured product based on a claim of strict liability, evidence of remedial
14measures taken subsequent to the sale of the product is not admissible for the
15purpose of showing a manufacturing defect in the product, a defect in the design of
16the product, or a need for a warning or instruction. This subsection does not prohibit
17the admission of such evidence to show a reasonable alternative design that existed
18at the time when the product was sold.
SB58,7,23 19(5) Time limit. (a) In any action under this section, a defendant is not liable
20to a claimant for damages if the product alleged to have caused the damage was
21manufactured 15 years or more before the claim accrues, unless the manufacturer
22makes a specific representation that the product will last for a period of time beyond
2315 years.
SB58,7,2524 (b) This subsection shall not bar a claim if the claimant establishes by a
25preponderance of the evidence all of the following:
SB58,8,2
11. That the defective product caused a latent disease that did not manifest itself
2until a date on or after 3 years before the expiration of the 15-year period.
SB58,8,43 2. That the claimant commenced the action within 3 years of the date of
4manifestation of the latent disease.
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