June 3, 2009Client Alert

Assembly Bill 75: The Proposed Revisions to Wisconsin’s Contributory Negligence Statute Will Be Bad for Businesses

Currently pending before the Joint Committee on Finance is Assembly Bill 75 (“A.B. 75”), which was introduced at the request of Governor Doyle. A.B. 75 contains a provision that proposes to amend Wisconsin Statute § 895.045, Wisconsin’s joint and several liability and comparative negligence statute. A.B. 75’s practical effect will be to expand the liability exposure of defendants in civil lawsuits; most often businesses defending against tort claims. A.B. 75 will: (1) change the current joint and several liability provisions; (2) lower the bar to recovery; and (3) require courts to instruct juries on the effect of awards and liabilities.

Changes to Joint and Several Liability

Under Wisconsin’s current law, a defendant is jointly and severally liable for the plaintiff’s damages (that is, all of the plaintiff’s adjudged damages) if the defendant’s negligence is found to be 51% or more. Under A.B. 75, a defendant will be jointly and severally liable for all the plaintiff’s damages if the defendant’s negligence is found to be equal to or greater than the plaintiff’s. Thus, a defendant found to be only 1% negligent could bear responsibility for 100% of the damages if the plaintiff’s negligence was also 1% (or lower). This would result in Wisconsin having one of the most expansive joint and several liability laws in the nation.

Changes to the Bar on Recovery

Under Wisconsin’s current law, a plaintiff may only recover damages from a defendant if the plaintiff’s negligence is not greater than that of the defendant (i.e., the defendant is more negligent than the plaintiff). The negligence of the plaintiff is also measured separately against the negligence of each individual defendant. A.B. 75 measures the plaintiff’s negligence against all of the defendants’ negligence collectively. So long as the plaintiff’s negligence is not greater than the combined negligence of all of the defendants, the plaintiff wins. The practical effect of this change is that plaintiff’s lawyers will try to sue more defendants in negligence lawsuits. The more defendants involved, the more likely the plaintiff will be able to recover against someone. And with more defendants from which to aggregate negligence, individuals and businesses may be found liable for damages even though their fault is lower than that of the plaintiff.

Changes to the Jury Instructions

Under Wisconsin’s current law, the court instructs the jury on the burdens of proof and substantive law in negligence cases. Under A.B. 75, the court is required “to explain to the jury the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.” This revision invites jurors to make decisions on factors related to the ultimate outcome of the case, rather than finding the facts under the applicable law. It also is ripe for abuse and mistakes, making appeals more likely and lengthening the litigation process.

In short, this proposed law will increase the amount of tort litigation in Wisconsin against businesses and create liability for companies that are only peripherally involved in a plaintiff’s injuries.

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