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Vol. 71, No. 8,
August 1998
Wisconsin's Comparative Negligence Statute:
Applying It to Products Liability Cases Brought
Under a Strict Liability Theory
By Erik J. Pless
| Attorneys bringing and defending products liability
cases must pay close attention to how special verdicts will be formulated
and how revised section 895.045 of the Wisconsin Statutes will affect the
amount of plaintiffs' recoveries and from whom plaintiffs can recover. |
As part of the Wisconsin Legislature's package of tort reform, a law of
comparative negligence went into effect on May 18, 1995, in the form of
the revised Wisconsin Statute section 895.045.
The statute applies to all cases filed on or after the effective date. Therefore,
the cases that this law affects are already in litigation. This article
analyzes some of the potential problems brought about by the law, shows
how trial courts have dealt with the law so far, and suggests solutions
to the application of a negligence statute to strict liability.
The statute regarding comparative negligence radically changed Wisconsin's
common law doctrine of joint and several liability. The statute provides
that the liability of a defendant who is less than 51 percent negligent
is limited to whatever percentage of total causal negligence is attributed
to that defendant by the jury. However, if a defendant is found to be 51
percent or more causally negligent, then that defendant is jointly and severally
liable for all of the damages allowed, less any reduction for the plaintiff's
own contributory negligence. 1
In a tort action brought under a theory of simple negligence, applying the
statute is rather simple and straightforward. Problems arise when the comparative
negligence statute is applied in cases brought under the theory of strict
liability, such as a products liability case.2
Why a negligence statute applies to strict liability
Most product liability cases are brought under two separate theories:
strict liability in tort under Section 402A of the Restatement (2d) of Torts,
and negligence. Before the law on contributory negligence, a jury in a case
brought under the theory of strict liability was asked the questions put
forth in Wisconsin Jury Instruction - Civil 3290. In short, the suggested
special verdict in the jury instruction asks the jury the five separate
components of Section 402A of the Restatement. Under Restatement (2d) of
Torts, strict liability attaches when the plaintiff proves the following
five elements:
- the product was defective when it left seller's possession;
- the product was unreasonably dangerous;
- the defect caused the injuries;
- the seller engaged in business of selling product; and
- the product reached user without substantial change.
 Once the five elements
of Section 402A are established, all the defendants in the chain of distribution
and the product itself are "deemed" negligent and, therefore,
strictly liable for the plaintiff's damages. The product deemed negligent
then is compared to the negligence of the plaintiff in one comparison question
without reference to any specific defendant.
In its purest form, strict liability under Section 402A is akin to absolute
liability without any regard to the ordinary negligence of the user. Comment
(n) to the Restatement indicates as such with the exception of "voluntarily
and unreasonably proceeding to encounter a known danger" or the "assumption
of risk" doctrine that would bar recovery. However, when the Wisconsin
Supreme Court adopted the theory of strict liability and Section 402A of
the Restatement (2d) of Torts in Dippel v. Sciano, the court adopted
a modified version of strict liability that, in effect, put the entire theory
of strict liability under the umbrella of negligence.3
The court's rationale in Dippel actually is designed to benefit
the plaintiff by preventing the "assumption of risk" doctrine
from completely barring recovery by a negligent plaintiff. The court equated
"assumption of risk" with common ordinary negligence, and thus
placed strict liability under the umbrella of Wisconsin's comparative negligence
statute - the prior version of section 895.045, which merely reduced
a plaintiff's recovery proportionally rather than barring it. The court
said:
"The term strict liability in tort might be misconstrued
and, if so, would be a misnomer. Strict liability does not make the manufacturer
or seller an insurer, nor does it impose absolute liability. ... The defense
of contributory negligence is available to the seller."4
Thus, Wisconsin has adopted a theory of strict liability that also takes
into account the plaintiff's ordinary contributory negligence. However,
this view is not without some reluctance and confusion:
"[T]he occasional references to negligence per se in products liability
cases and in the pattern jury instructions do not ... inseparably wed the
two theories of liability in all circumstances. Indeed, comparing strict
liability and negligence 'is ... comparing apples and oranges, for [strict
liability] is based upon the public-policy premise that a seller is socially
responsible for what he [or she] puts into the stream of commerce irrespective
of [the] degree of care.' On the other hand, negligence is based upon a
theory of fault."5
Nonetheless, the view that the contributory negligence statute, in its
previous forms, applies to strict liability cases has been upheld over the
years by the Wisconsin Supreme Court.6
Furthermore, although there has been no appellate court decision on the
applicability of the revised statute, at least two trial courts have held
that the statute does apply to products cases brought under the theory of
strict liability.7
The problem arises
Prior to the 1995 version of section 895.045, applying the comparative
negligence statute to strict liability cases was simple. The plaintiff's
contributory negligence - if less than 51 percent - simply was subtracted
from the amount of the plaintiff's recovery. Furthermore, under Wisconsin's
common law doctrine of joint and several liability, all of the defendants
in the chain of distribution who were found to be strictly liable would
be joint and severally liable for the plaintiff's net damages. However,
the revised section 895.045 eliminates joint and several liability for defendants
less than 51 percent negligent. The problem of how much each defendant should
pay arises because under the Jury Instruction - Civil 3290 there is no direct
comparison between the negligence apportioned to the plaintiff and the responsibility
of each defendant for manufacturing the product or placing the product in
the stream of commerce. Rather, under Jury Instruction - Civil 3290 the
first comparison is of plaintiff versus the product as a whole, without
comparison to any specific defendant. Then, a second comparison question
is asked of the jury to apportion responsibility for the product. This second
apportionment question, applied only among defendants, was approved by the
Wisconsin Supreme Court in City of Franklin v. Badger Ford.8 So, the question remains, how much
does each defendant pay under the comparative negligence statute?
For example, suppose a plaintiff establishes that two defendants, a manufacturer
and a distributor, are both strictly liable under the five elements of Section
402A. However, the plaintiff is 40 percent contributorily negligent, as
compared to the product, which bears 60 percent of the negligence. The jury
then takes the second apportionment and finds that the manufacturer is 70
percent responsible (for manufacturing the defective product), and the distributor
is 30 percent responsible (for placing the defective product in the stream
of commerce through marketing). Under the revised section 895.045, does
the distributor pay 30 percent of 60 percent of the plaintiff's damages
(the distributor's share, less the plaintiff's contributory negligence),
or does the distributor pay nothing because the plaintiff's contributory
negligence exceeds the amount apportioned to the distributor by the jury?
Or, is Jury Instruction - Civil 3290 simply unworkable, given the revised
section 895.045?
Eliminating plaintiff vs. product and a new special verdict
The wording of the statute itself provides some guidance. In addition
to eliminating joint and several liability, the statute also contains a
new provision: the negligence of the plaintiff shall be measured separately
against the negligence of each person found to be causally negligent.9 The key words in this provision are
"shall be measured separately." Under Jury Instruction - Civil
3290, there is no "separate measurement" of the plaintiff's negligence
against the defendant's negligence. Therefore, the language of the statute
would suggest that the standard special verdict form in products liability
cases needs to be changed.10
Under all the prior versions of section 895.045 and Wisconsin case law
regarding the application of the doctrine of strict liability, the plaintiff's
negligence was compared against that of the product. The statute's new language,
specifically, the "shall be measured separately" provision, seems
to mandate eliminating the traditional "person versus product"
comparison.
The special verdict form needs to be revised to balance the plaintiff's
interest in maintaining the advantages of bringing a products liability
suit in strict liability, but yet reconciling the "shall be measured
separately" mandate in the new statute. To provide the plaintiff with
the benefit of bringing the case under the theory of strict liability, all
five elements of Section 402A must be retained. Once the plaintiff proves
the five elements of Section 402A, each defendant in the chain of distribution
is deemed negligent per se, as envisioned by the Wisconsin Supreme Court
in Dippel.11 As the
Dippel court reasoned:
"From the plaintiff's point of view, the most beneficial aspect
of the rule is that it relieves him of proving specific acts of negligence
and protects him from the defenses of notice of breach, disclaimer, and
lack of privity in the implied warranty concepts of sales and contracts."12
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