Strict products liability in Wisconsin. 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.
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. Mallett
, 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
“Claimant" means a person seeking damages or other relief for injury or harm to a person or property caused by or arising from a product, or a person on whose behalf a claim for such damages or other relief is asserted.
“Relevant production period" means the time period during which the specific product that allegedly caused a claimant's injury or harm was manufactured, distributed, sold, or promoted.
This section applies to all actions in law or equity, whenever filed or accrued, in which a claimant alleges that the manufacturer, distributor, seller, or promoter of a product is liable for an injury or harm to a person or property, including actions based on allegations that the design, manufacture, distribution, sale, or promotion of, or instructions or warnings about, a product caused or contributed to a personal injury or harm to a person or property, a private nuisance, or a public nuisance, and to all related or independent claims, including unjust enrichment, restitution, or indemnification.
Remedy with specific product identification.
Except as provided in sub. (4)
, the manufacturer, distributor, seller, or promoter of a product may be held liable in an action under sub. (2)
only if the claimant proves, in addition to any other elements required to prove his or her claim, that the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted the specific product alleged to have caused the claimant's injury or harm.
Remedy without specific product identification.
Subject to sub. (5)
, if a claimant cannot meet the burden of proof under sub. (3)
, the manufacturer, distributor, seller, or promoter of a product may be held liable for an action under sub. (2)
only if all of the following apply:
That no other lawful process exists for the claimant to seek any redress from any other person for the injury or harm.
That the claimant has suffered an injury or harm that can be caused only by a manufactured product chemically and physically identical to the specific product that allegedly caused the claimant's injury or harm.
That the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted a complete integrated product, in the form used by the claimant or to which the claimant was exposed, and that meets all of the following criteria:
Is chemically and physically identical to the specific product that allegedly caused the claimant's injury or harm.
Was manufactured, distributed, sold, or promoted in the geographic market where the injury or harm is alleged to have occurred during the time period in which the specific product that allegedly caused the claimant's injury or harm was manufactured, distributed, sold, or promoted.
Was distributed or sold without labeling or any distinctive characteristic that identified the manufacturer, distributor, seller, or promoter.
The action names, as defendants, those manufacturers of a product who collectively manufactured at least 80 percent of all products sold in this state during the relevant production period by all manufacturers of the product in existence during the relevant production period that are chemically identical to the specific product that allegedly caused the claimant's injury or harm.
Limitation on liability.
No manufacturer, distributor, seller, or promoter of a product is liable under sub. (4)
if more than 25 years have passed between the date that the manufacturer, distributor, seller, or promoter of a product last manufactured, distributed, sold, or promoted the specific product chemically identical to the specific product that allegedly caused the claimant's injury and the date that the claimant's cause of action accrued.
Apportionment of liability.
If more than one manufacturer, distributor, seller, or promoter of a product is found liable for the claimant's injury or harm under subs. (4)
, the court shall apportion liability among those manufacturers, distributors, sellers, and promoters, but that liability shall be several and not joint.
History: 2011 a. 2
; 2013 a. 20
; s. 35.17 correction in (1g).
895.046 AnnotationArticle I, section 1
, of the Wisconsin Constitution prohibits retroactive application of this section. Wisconsin Supreme Court precedent demands holding that this section violates state due-process principles by trying to extinguish the plaintiff's vested right in his negligence and strict-liability causes of action. Gibson v. American Cyanamid Co., 760 F.3d 600
This section reinstates ordinary causation principles in all products liability cases, while carving out a narrow exception for plaintiffs like Collins
, 116 Wis. 2d 166
(1984), who have no other remedy and whose injuries stem from a completely integrated product produced in chemically and physically identical forms and sold in generic packaging. The net effect of this section, Thomas
, 2005 WI 129
, and Gibson
, 760 F.3d 600
(2014), is a six-year window (2005-2011) in which plaintiffs in Wisconsin can rely on the risk-contribution theory to sue white lead carbonate manufacturers for injuries arising from their ingestion of white lead carbonate as children. Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791
Although this section may not retroactively extinguish the cause of action that Thomas
, 2005 WI 129
, recognized, the plaintiffs' claims in this case went beyond Thomas
, and this section forbade the district court's extension of Thomas
. The district court improperly extended Thomas
by allowing the plaintiffs to hold the defendants liable in their capacity as manufacturers of finished paint products, and not just in their capacity as manufacturers of white lead carbonate. Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791
Wisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2
. Irgens. 2012 WLR 1245.
Liability of manufacturer.
In an action for damages caused by a manufactured product based on a claim of strict liability, a manufacturer is liable to a claimant if the claimant establishes all of the following by a preponderance of the evidence:
That the product is defective because it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product contains a manufacturing defect if the product departs from its intended design even though all possible care was exercised in the manufacture of the product. A product is defective in design if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe. A product is defective because of inadequate instructions or warnings only if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.
That the defective condition rendered the product unreasonably dangerous to persons or property.
That the defective condition existed at the time the product left the control of the manufacturer.
That the product reached the user or consumer without substantial change in the condition in which it was sold.
That the defective condition was a cause of the claimant's damages.
Liability of seller or distributor. 895.047(2)(a)
A seller or distributor of a product is not liable based on a claim of strict liability to a claimant unless the manufacturer would be liable under sub. (1)
and any of the following applies:
The claimant proves by a preponderance of the evidence that the seller or distributor has contractually assumed one of the manufacturer's duties to manufacture, design, or provide warnings or instructions with respect to the product.
The claimant proves by a preponderance of the evidence that neither the manufacturer nor its insurer is subject to service of process within this state.
A court determines that the claimant would be unable to enforce a judgment against the manufacturer or its insurer.
The court shall dismiss a product seller or distributor as a defendant based on par. (a) 2.
if the manufacturer or its insurer submits itself to the jurisdiction of the court in which the suit is pending.
If the defendant proves by clear and convincing evidence that at the time of the injury the claimant was under the influence of any controlled substance or controlled substance analog to the extent prohibited under s. 346.63 (1) (a)
, or had an alcohol concentration, as defined in s. 340.01 (1v)
, of 0.08 or more, there shall be a rebuttable presumption that the claimant's intoxication or drug use was the cause of his or her injury.
Evidence that the product, at the time of sale, complied in material respects with relevant standards, conditions, or specifications adopted or approved by a federal or state law or agency shall create a rebuttable presumption that the product is not defective.
The damages for which a manufacturer, seller, or distributor would otherwise be liable shall be reduced by the percentage of causal responsibility for the claimant's harm attributable to the claimant's misuse, alteration, or modification of the product.
The court shall dismiss the claimant's action under this section if the damage was caused by an inherent characteristic of the product that would be recognized by an ordinary person with ordinary knowledge common to the community that uses or consumes the product.
A seller or distributor of a product is not liable to a claimant for damages if the seller or distributor receives the product in a sealed container and has no reasonable opportunity to test or inspect the product. This paragraph does not apply if the seller or distributor may be liable under sub. (2) (a) 2.
Subsequent remedial measures.
In an action for damages caused by a manufactured product based on a claim of strict liability, evidence of remedial measures taken subsequent to the sale of the product is not admissible for the purpose of showing a manufacturing defect in the product, a defect in the design of the product, or a need for a warning or instruction. This subsection does not prohibit the admission of such evidence to show a reasonable alternative design that existed at the time when the product was sold.
In any action under this section, a defendant is not liable to a claimant for damages if the product alleged to have caused the damage was manufactured 15 years or more before the claim accrues, unless the manufacturer makes a specific representation that the product will last for a period beyond 15 years. This subsection does not apply to an action based on a claim for damages caused by a latent disease.
This section does not apply to actions based on a claim of negligence or breach of warranty.
History: 2011 a. 2
In 2011 Wis. Act 2
, the legislature made two primary choices pertinent to this case alleging strict product liability for a design defect. First, it adopted the risk-utility balancing test from the Restatement (Third) of Torts to determine whether a plaintiff has established a product design defect, which explicitly requires consideration of “foreseeable risks of harm” and a “reasonable alternative design” under sub. (1) (a). Second, it retained the “unreasonably dangerous” test from the Restatement (Second) of Torts to determine whether a plaintiff has established unreasonable dangerousness under sub. (1) (b). Murphy v. Columbus McKinnon Corp., 2021 WI App 61
, 399 Wis. 2d 18
, 963 N.W.2d 837
Allegations that a defendant was negligent because it selected and applied a mortar that was not appropriate for the context in which it was used did not give rise to a product liability claim because the plaintiffs did not allege that the defendant manufactured or sold a defective product. Wascher v. ABC Insurance Co., 2022 WI App 10
, 401 Wis. 2d 94
, 972 N.W.2d 162
Wisconsin's codification under 2011 Wis. Act 2
of its product liability law generally did not supersede the common law. Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995
The contract specification defense does not apply to a claim of strict liability under Wisconsin law. Under the contract specification defense, a manufacturer that makes a product strictly in accordance with the design specifications of another is not liable in negligence unless the specifications are so obviously defective and dangerous that a contractor of reasonable prudence would have been put on notice that the product was dangerous and likely to cause injury. The contract specification defense significantly undermines the policies underlying strict liability. Therefore, the defense does not exist under Wisconsin law. Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995
A manufacturer of a component that is incorporated into a larger product is not necessarily strictly liable should the larger product prove defective. A component manufacturer is strictly liable only if the injury is directly attributable to a defect in the component and there was no change in the component that was merely incorporated into something larger. But where the component part is subject to further proceeding or substantial change, or where the causing of injury is not directly attributable to defective construction of the component part, the result might be different. The Wisconsin legislature explicitly codified this common law requirement under sub. (1) (d). Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995
Sellers and distributors are liable under sub. (2), not because of any particular activity on their part, but because they are proxies for absent manufacturers. This structure suggests that, in the absence of the manufacturer, the entity responsible for getting the defective product into Wisconsin is liable. In this case, the defendant did not own the product sold to the plaintiff, but, for products sold under the defendant's “Fulfillment by Amazon" program, the defendant otherwise served all the traditional functions of both retail seller and wholesale distributor. Thus, when the defendant provided order fulfillment services through the program, the defendant was properly considered a seller for purposes of Wisconsin strict product liability law for products sold by third parties through the defendant's website. State Farm Fire & Casualty Co. v. Amazon.com, Inc., 390 F. Supp. 3d 964
The Wisconsin Constitution's guarantee to due process prohibits retroactive application of this section in this case. Nelson v. Johnson & Johnson, 428 F. Supp. 3d 1
This section alters the way in which a plaintiff proves a strict products liability claim. It essentially changes the elements and redefines a defectively-designed product. Implicit in the language of sub. (1) (a) is the rule that an inherently dangerous product for which there is no safer alternative cannot be found unreasonably dangerous. Sub. (1) (a) thus imposes new burdens on a plaintiff by requiring that the plaintiff prove foreseeability and that a reasonable alternative design exists and should have been adopted by the manufacturer. Nelson v. Johnson & Johnson, 428 F. Supp. 3d 1
Wisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2
. Irgens. 2012 WLR 1245.
A New Era: Products Liability Law in Wisconsin. Edwards & Ozalp. Wis. Law. July 2011.
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 percent 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.
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 utility terrain vehicle, as defined in s. 23.33 (1) (ng)
, 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)
, 23.335 (8) (a)
, or 347.485 (1)
When this section applies to prohibit a reduction of damages, it necessarily also precludes a person's failure to wear a helmet from being considered a form of negligence. Hardy v. Hoefferle, 2007 WI App 264
, 306 Wis. 2d 513
, 743 N.W.2d 843
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.
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.
History: 1993 a. 486
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
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).
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
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).
The trial court properly dismissed a defamation claim based on a letter by a medical director charging that a foundation conducted a sham nonprofit operation since the director established the defense of truth. Fields Foundation, Ltd. v. Christensen, 103 Wis. 2d 465
, 309 N.W.2d 125
(Ct. App. 1981).
“Public figure" is defined. Constitutional protections of the news media and an individual defamer are discussed. Denny v. Mertz, 106 Wis. 2d 636
, 318 N.W.2d 141
A former legislator who had gained notoriety within the district while in office and who was allegedly defamed in a radio broadcast within the district was a “public figure" for purposes of a defamation action. Lewis v. Coursolle Broadcasting, 127 Wis. 2d 105
, 377 N.W.2d 166
A computer bulletin board is not a periodical and not subject to sub. (2). It's In the Cards, Inc. v. Fuschetto, 193 Wis. 2d 429
, 535 N.W.2d 11
(Ct. App. 1995).
If 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 Wis. 2d 524
, 563 N.W.2d 472
For purposes of libel law, a “public figure" who must prove malice includes a person who by being drawn into or interjecting himself or herself into a public controversy becomes a public figure for a limited purpose because of involvement in the particular controversy. “Public figure" status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Bay, Inc., 229 Wis. 2d 156
, 599 N.W.2d 1
(Ct. App. 1999), 98-2660
A “public dispute" is not simply a matter of interest to the public. It must be a real dispute, the outcome of which affects the general public in an appreciable way. Essentially private concerns do not become public controversies because they attract attention; the dispute's ramifications must be felt by persons who are not direct participants. Maguire v. Journal Sentinel, Inc., 2000 WI App 4
, 232 Wis. 2d 236
, 605 N.W.2d 881
In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Lassa v. Rongstad, 2006 WI 105
, 294 Wis. 2d 187
, 718 N.W.2d 673
Actual malice requires that an allegedly defamatory statement be made with knowledge that it was false or with reckless disregard of whether it was false or not. Actual malice does not mean bad intent, ill-will, or animus. Repeated publication of a statement after being informed that the statement was false does not constitute actual malice so long as the speaker believes it to be true. Actual malice cannot be inferred from the choice of one rational interpretation of a speech over another. Donohoo v. Action Wisconsin, Inc., 2008 WI 56
, 309 Wis. 2d 704
, 750 N.W.2d 739
There are two kinds of public figures: public figures for all purposes and public figures for a limited purpose. Like public officials, public figures for all purposes must prove actual malice in all circumstances. Limited purpose public figures, on the other hand, are otherwise private individuals who have a role in a specific public controversy. Limited purpose public figures are required to prove actual malice only when their role in the controversy is “more than trivial or tangential" and the defamation is germane to their participation in the controversy. Biskupic v. Cicero, 2008 WI App 117
, 313 Wis. 2d 225
, 756 N.W.2d 649
The plaintiff was a public figure for all purposes when he was involved in highly controversial and newsworthy activities while in public office; the publicity and controversy surrounding these events continued well after the term of office ended; the plaintiff remained in the news after leaving office as a result of new developments in the various inquiries into his official conduct; and he had a connection with another public official in the news. Biskupic v. Cicero, 2008 WI App 117
, 313 Wis. 2d 225
, 756 N.W.2d 649
In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice. However, this rule is not absolute. In this case, because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117
, 313 Wis. 2d 225
, 756 N.W.2d 649
Sub. (2) provides that an opportunity to correct libelous matter “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 optional provision: “The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty," does not nullify the requirement that the notice contain a statement of what are claimed to be the true facts. Once a claimant has been found to not meet the notice requirements, the action cannot be revived by again attempting to comply with the notice provisions. DeBraska v. Quad Graphics, Inc., 2009 WI App 23
, 316 Wis. 2d 386
, 763 N.W.2d 219
The elements of a defamatory communication are: 1) a false statement; 2) communicated by speech, conduct, or in writing to a person other than the person defamed; and 3) the communication is unprivileged and is defamatory, that is, tends to harm one's reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her. The statement that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Terry v. Journal Broadcast Corp., 2013 WI App 130
, 351 Wis. 2d 479
, 840 N.W.2d 255