Wisconsin Business and Commercial Litigation

In Maypark v. Securitas Security Services USA, Inc. (Sep. 1, 2009), the District III court of appeals was presented with a unique (to be charitable) fact pattern.  Security Manager Schmidt, employed by Securitas, which was the security services subcontrator for Polaris, was responsible for creating photo ID badges for Polaris employees.  One lonely night, Schmidt copied the photographs of about thirty female Polaris employees, took them home, printed them out, ejaculated on them, and posted pictures of the sullied photos on a number of websites. 

Upon learning of the website contents, Polaris notified Securitas, which immediately terminated Schmidt’s employment.  Schmidt removed the offending photos from the websites.  Nevertheless, at a trial brought by ten of the women in the pictures, Securitas was found liable for negligent training and supervision.

District III confessed some confusion arising from recent Supreme Court precedent:

However, given recent guidance from our supreme court, it is unclear how we are to set forth our analysis.  Depending on the cases we review, we should either (1) evaluate whether Securitas had a duty under the circumstances of this case, see Hocking v. City of Dodgeville, 2009 WI 70, PP10-13 . . . , or (2) consider whether Securitas’s actions constituted a breach of the duty of ordinary care, see Behrendt v. Gulf Underwriters Insurance Co, 2009 WI 71, PP15-31 . . . .

Ultimately, the court determined that its confusion didn’t really prevent a reasoned conclusion.

We conclude it does not matter which approach we employ because, in the end, they are one and the same.  A conclusion of no negligence under the first approach requires that we determine the defendant was not required to act, while under the second it requires that we determine there was no breach for failing to act because the defendant was not required to act.  . . .  Without explicitly employing either approach in this case, we simply conclude Securitas was not negligent, as a matter of law.

The court ended up relying on another negligent supervision case to determine that Schmidt’s acts were, in something of a judicial understatement, not reasonably foreseeable.  Maypark should bring some comfort to employers who fret about the seemingly endless limits of their liability for the acts of employees.

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.