Contributory Negligence Provisions Pulled From Wisconsin State Budget Following Wisconsin Civil Justice Council Effort

Following a grassroots effort galvanized by the Wisconsin Civil Justice Council, Wisconsin's Assembly Democratic Caucus pulled the contributory negligence provisions buried in the state budget, which would have greatly expanded lawsuits brought against businesses there. The provisions in the budget related to joint and several liability, combined fault and jury instructions. Had the provisions remained in the budget, and passed, Wisconsin law could have allowed someone as little as 1 percent at fault to pay 100 percent of damages; combined the fault of all defendants to allow a more at fault plaintiff to sue; excluded parties most at fault in order to fabricate elevated fault levels to manipulate the joint and several calculation; and forced reluctant courts to instruct the jury in a way that would skew judgments to maximize awards.

The Wisconsin Civil Justice Council maintains that had the provisions been adopted as part of the state budget, they would have drastically changed Wisconsin's litigation landscape, and assured more litigation, higher awards and a less competitive Wisconsin, creating legal traps never before seen in Wisconsin.

Consistent with Minnesota, Iowa, Ohio, Missouri, Nebraska and South Dakota, Wisconsin law allows full recovery through joint and several liability from a defendant found to be at least 51 percent at fault. This is more generous than Michigan, Indiana, Kansas and North Dakota (which has no joint and several liability, allowing only recovery of those damages attributable to the defendant.)

The only Midwest state more "generous" than Wisconsin is Illinois, which requires a defendant as little as 25 percent at fault to pay 100 percent of the damages. Their laws also require certain, most at fault entities to be disregarded when calculating that 25 percent fault.

For more information: contact NPCA/FSCT's Tom Graves.

Date Posted: July 1, 2009