NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85 [now s. 895.043].
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
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).
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
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
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
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
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
Sub. (3) sets the bar for the kind of evidence required to support a punitive damage award and does not expand the category of cases where punitive damages may be awarded. In cases in which punitive damages are barred in the first instance, the standard for conduct under sub. (3) does not come into play. Groshek v. Trewin, 2010 WI 51
, 325 Wis. 2d 250
, 784 N.W.2d 163
Courts apply a six-factor test to determine whether a punitive damages award is excessive: 1) the grievousness of the acts; 2) the degree of malicious intent; 3) whether the award bears a reasonable relationship to the award of compensatory damages; 4) the potential damage that might have been caused by the acts; 5) the ratio of the award to civil or criminal penalties that could be imposed for comparable misconduct; and 6) the wealth of the wrongdoer. Courts are called upon to analyze only those factors which are most relevant to the case. The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct. Kimble v. Land Concepts, Inc. 2014 WI 21
, 353 Wis. 2d 377
, 845 N.W.2d 395
The due process clause does not permit a jury to base an award of punitive damages in part upon its desire to punish the defendant for harming persons who are not before the court. However, evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk to the general public, and so was particularly reprehensible. The due process clause requires state courts to provide assurance that juries are seeking simply to determine reprehensibility and not also to punish for harm caused to strangers. Philip Morris USA v. Williams, 784 U.S. 631
, 127 S. Ct. 1057
, 166 L. Ed. 2d 940
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
The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.
Damages for maintaining certain claims and counterclaims. 895.044(1)(1)
A party or a party's attorney may be liable for costs and fees under this section for commencing, using, or continuing an action, special proceeding, counterclaim, defense, cross complaint, or appeal to which any of the following applies:
The action, special proceeding, counterclaim, defense, cross complaint, or appeal was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense, cross complaint, or appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
Upon either party's motion made at any time during the proceeding or upon judgment, if a court finds, upon clear and convincing evidence, that sub. (1) (a)
applies to an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense, or cross complaint commenced, used, or continued by a defendant, the court:
May, if the party served with the motion withdraws, or appropriately corrects, the action, special proceeding, counterclaim, defense, or cross complaint within 21 days after service of the motion, or within such other period as the court may prescribe, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, special proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section. In determining whether to award, and the appropriate amount of, damages under this paragraph, the court shall take into consideration the timely withdrawal or correction made by the party served with the motion.
Shall, if a withdrawal or correction under par. (a)
is not timely made, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, special proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section.
If a party makes a motion under sub. (2)
, a copy of that motion and a notice of the date of the hearing on that motion shall be served on any party who is not represented by counsel only by personal service or by sending the motion to the party by registered mail.
If an award under this section is affirmed upon appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the successful party for the actual reasonable attorney fees the party incurred in the appeal.
If the appellate court finds that sub. (1) (a)
applies to an appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the successful party for all the actual reasonable attorney fees the party incurred in the appeal. An appeal is subject to this subsection in its entirety if any element necessary to succeed on the appeal is supported solely by an argument that is described under sub. (1) (a)
The costs and fees awarded under subs. (2)
, and (5)
may be assessed fully against the party bringing the action, special proceeding, cross complaint, defense, counterclaim, or appeal or the attorney representing the party, or both, jointly and severally, or may be assessed so that the party and the attorney each pay a portion of the costs and fees.
This section does not apply to criminal actions or civil forfeiture actions. Subsection (5)
does not apply to appeals under s. 809.107
, or 974.05
or to appeals of criminal or civil forfeiture actions.
History: 2011 a. 2
Contributory negligence. 895.045(1)(1)
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)
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.
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.
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.
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.
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.
This subsection does not apply to actions based on negligence or a breach of warranty.
See s. 891.44
for conclusive presumption that child under 7 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
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
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
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
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
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 an error. Connar v. West Shore Equipment, 68 Wis. 2d 42
, 227 N.W.2d 660
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
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
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
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
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
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
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
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
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
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
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
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).
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
“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
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 was greater than any individual tortfeasor's. Delvaux v. Vanden Langenberg, 130 Wis. 2d 464
, 387 N.W.2d 751
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
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
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).
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
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
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
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
, 294 Wis. 2d 347
, 718 N.W.2d 112
Sub. (2) is a codification of the common-law rule on concerted-action liability discussed and not a new cause of action. Concerted-action liability attaches when 2 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 3 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, 2006 WI App 255
, 297 Wis. 2d 699
, 727 N.W.2d 69
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
Sub. (2) is the codification of the common law concerted action theory of liability. There are 3 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, 2008 WI 52
, 309 Wis. 2d 541
, 749 N.W.2d 581
Proportioning comparative negligence — problems of theory and special verdict formulation. Aiken, 53 MLR 293.
From defect to cause to comparative fault — Rethinking some product liability concepts. Twerski, 60 MLR 297.
The problem of the insolvent contributor. Myse, 60 MLR 891.
Punitive damage recovery in products liability cases. Ghiardi and 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).
Comparative Negligence in Wisconsin. Horowitz, WBB Jan. 1981.
Plaintiff's failure to wear a safety belt. Towers, WBB July, 1985.
Strict products liability in Wisconsin. 1977 WLR 227.
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.
Remedies against manufacturers, distributors, sellers, and promoters of products. 895.046(1g)(1g)
Legislative findings and intent.
The legislature finds that it is in the public interest to clarify product liability law, generally, and the application of the risk contribution theory of liability first announced by the Wisconsin Supreme Court in Collins v. Eli Lilly Company
, 116 Wis. 2d 166
(1984), specifically, in order to return tort law to its historical, common law roots. This return both protects the rights of citizens to pursue legitimate and timely claims of injury resulting from defective products, and assures that businesses may conduct activities in this state without fear of being sued for indefinite claims of harm from products which businesses may never have manufactured, distributed, sold, or promoted, or which were made and sold decades ago. The legislature finds that the application of risk contribution to former white lead carbonate manufacturers in Thomas v. Mallet
, 285 Wis. 2d 236
(2005), was an improperly expansive application of the risk contribution theory of liability announced in Collins
, and that application raised substantial questions of deprivation of due process, equal protection, and right to jury trial under the federal and Wisconsin constitutions. The legislature finds that this section protects the right to a remedy found in article I, section 9
, of the Wisconsin Constitution, by preserving the narrow and limited application of the risk contribution theory of liability announced in Collins