Individual States 

WISCONSIN

ASSUMPTION OF RISK

Assumption of risk as a specific defense has been effectively abolished, and is no longer a bar to recovery. Wis. Stat. §895.045 .

CAPS ON NONECONOMIC DAMAGES

There are no exclusive Products Liability statutes under this category.

COLLATERAL SOURCE RULE

There are no exclusive Products Liability statutes under this category.

COMPARATIVE FAULT

A claimant's negligence only bars recovery if that negligence is greater than the negligence of the person against whom recovery is sought. If claimant's negligence is less, recovery shall be diminished in proportion to claimant's negligence. Wis. Stat. Ann. §895.045

A plaintiff's contributory negligence will bar recovery in either strict liability or negligence. In negligence actions, recovery will be barred if the plaintiff is found to be more negligent, on a percentage basis, than the defendant. In strict liability, recovery will be barred if the plaintiff is found to be more at fault, on a percentage basis, as compared to the product. Fuchsgruber v. Custom Accessories, Inc., 628 N.W.2d 833 (Wis. 2001) .

ECONOMIC LOSS

A purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories. Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, 437 N.W.2d 213 (Wis.1989) .

The economic loss doctrine applies regardless of whether privity of contract exists between the parties. Daanen & Janssen v. Cedarapids, 216 Wis.2d 395 (Wis.1998) .

The economic loss doctrine applies to consumer as well as commercial transactions. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis.2d 305 (Wis.1999) .

The Wisconsin Supreme Court has not yet reached the issue of whether the economic loss doctrine would bar a strict-liability claim "when the parties are of unequal bargaining power, the product is a necessity, no alternative source for the product is easily available, and the purchaser cannot reasonably insure against consequential damages." State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis.2d 305 (Wis.1999)

A plaintiff can recover on a strict liability theory where an "unreasonably dangerous" defective product damages "other property." Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918 (Wis.1991) .

However, incidental property damage will not take a commercial dispute outside the economic loss rule. Miller v. United States Steel Corp., 902 F.2d 573 (7th Cir.1990) (applying Wisconsin law).

Additionally, while no Wisconsin court has addressed the issue of whether a party to a purely commercial contract dispute may also recover tort damages when there is minimal damage to other property, the Eastern District of Wisconsin has held that minimal damage to other property will not take a case out if the economic loss doctrine. Rich Prod. Corp. v. Kemute Inc., 66 F.Supp.2d 937 (E.D.Wis.1999) .

There is a "public safety" exception which only applies to cases involving asbestos or other inherently dangerous contaminants. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis.2d 235 (Wis.1999) .

The economic loss doctrine does not bar claims arising out of the negligent provision of services. Ins. Co. of N. America v. Cease Elec. Inc., 2003 WL 22956579 (Wis.App.2003) .

JOINT & SEVERAL LIABILITY

In strict liability actions, joint and several liability is imposed on any manufacturer or seller in the distributive chain responsible for a defective and unreasonably dangerous product, subject to a plaintiff's contributory negligence. Fuchsgruber v. Custom Accessories, Inc., 628 N.W.2d 833 (Wis. 2001) .

In actions for negligence resulting in death or in injury to person or property, joint tortfeasors with less than 51 percent fault are only severally liable for their share, while those with 51 percent or more are jointly and severally liable for entire judgment. However, if two or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action. Wis. Stat. Ann. §§895.045, 895.85(5) .

PUNITIVE DAMAGES

Punitive damages require a showing, by clear and convincing evidence, that the defendant acted maliciously toward the plaintiff or in an intentional disregard of his rights. If plaintiff can establish a prima facie case, he may introduce evidence of defendant's wealth, and the court or jury shall issue a special verdict as to punitive damages. Note that there is no joint and several liability for punitive damages. Wis. Stat. Ann. §895.85 .

Punitive damages are not allowed in wrongful death actions. Wangen v. Ford Motor Co., 294 N.W.2d 437 (Wis. 1980) .

RIGHT TO CONTRIBUTION

A defendant in the distributive chain may maintain a contribution claim against those parties who helped place the product into the stream of commerce. Fuchsgruber v. Custom Accessories, Inc., 628 N.W.2d 833 (Wis. 2001) .

There is a right to contribution in favor of any joint tortfeasor who has paid more than his percentage of the causal negligence. This also applies in strict product liability actions, and the jury will be instructed to apportion liability for contribution among the defendants (manufacturers, assemblers, dealers, and sellers). Fuchsgruber v. Custom Accessories, Inc., 628 N.W.2d 833 (Wis. 2001) .

In actions for contribution based in tort, if the right of contribution does not arise out of a prior judgment allocating the comparative negligence between the parties, it shall be commenced within one year after the cause of action accrues or it is barred. Wis. Stat. Ann. §893.92 .

The right to contribution in Wisconsin provides for a nonparty defense whereby a defendant may reduce his liability by claiming that some amount of fault is attributable to a person who is not a party to the lawsuit subject to certain conditions. Connar v. W. Shore Equip., 227 N.W.2d 660 (1975) .

SPECIAL DEFENSES

In a strict liability action, the "open and obvious danger" defense applies whenever a plaintiff voluntarily confronts such a condition, and a reasonable person in the position of the plaintiff would recognize the condition and the risk the condition presents. Also, the "open and obvious danger" defense applies in situations where a reasonable person in the position of the plaintiff would not appreciate the gravity of the harm threatened by the open and obvious condition. This defense may completely bar recovery or reduce recovery. Griebler v. Doughboy Recreational, Inc., 160 Wis. 2d 547 (1991) .

Wisconsin does not recognize an absolute, continuing duty to warn of new safety devices that eliminate potential hazards. Except under limited circumstances, a manufacturer is not liable under a post-sale duty to warn. Gracyalny v. Westinghouse Elec. Corp. Cir., 723 F.2d 1311 (7th Cir. 1983) .

A manufacturer is not liable for reasonably unexpected or unforeseeable injuries caused by a substantial change in the condition of the product occurring after the initial sale, or due to abnormal use. Schuh v. Fox River Tractor Co., 63 Wis. 2d 728 (1974) .

STATUTES OF LIMITATIONS

Actions for property damage must be brought within six years, except in cases where a different period is expressly prescribed. Wis. Stat. Ann. §893.52 .

Actions for personal injury or wrongful death must be brought within three years. Wis. Stat. Ann. §893.54 .

Actions based on warranties must be brought within six years. Merchants may reduce this limitation to not less than one year in the original agreement, but may not extend it. Wis. Stat. Ann. §402.725 .

STATUTES OF REPOSE

There is no statute of repose for product liability actions in Wisconsin.

STRUCTURED SETTLEMENT

There are no exclusive Products Liability statutes under this category.