Doyle Flip-Flops Wisconsin’s Comparative Negligence Statute
As most everyone reading this will know, Wisconsin’s comparative negligence statute is Wis. Stat. §895.045. The language of the statute is complicated on a first reading, and only gets worse when it’s applied to any specific situation. Governor Doyle’s proposed budget (AB75) contains a number of provisions that would significantly alter the effect of a party’s portion of negligence, and how comparative negligence is handled at trial.
All major changes (in law and in everything else) create divided camps, and this is no exception. Plaintiff’s attorneys call the provision a “restoration of consumer rights,” while some defense lawyers and business groups opine that the change will expose businesses to unfair portions of liability awards. The Wisconsin State Bar supports Doyle’s proposed change.
The current statute became law in 1995, and, not surprisingly, accounts of just how that statute came to be vary widely. You can draw your own conclusions about whether the proposed change is good or bad – there certainly are widely diverse opinions out there.
The major changes proposed by Doyle:
· While existing law requires that a person be at least 51% at fault before the party can be held responsible for 100% of the damages, Doyle’s proposal would allow anyone with equal or greater fault than the plaintiff to be held 100% responsible.
· Currently, a plaintiff must be less at fault than each individual defendant. Doyle’s proposal would permit suit as long as the combined fault of all defendants is greater than that of the plaintiff.
· Now, courts do not inform juries of the effects of the percentages of fault assigned to each party. The new law would require a court to instruct the jury how findings of fault affect responsibility for damages.
And finally, for your continued edification, the text of the contributory negligence statute, with proposed amendments:
895.045 Contributory 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 the person or property, if that negligence was not greater than the combined negligence of all of the person persons 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 Any person found to be causally negligent whose percentage of causal negligence is equal to or greater than the negligence of the person recovering shall be jointly and severally liable for the damages allowed.
