Wisconsin Business and Commercial Litigation

In the Wisconsin Law Journal, Jack Zemlicka writes about a potential statutory change that would increase the statute of limitations on an intentional cause of action from two years to three years.  The additional time would bring the statute on intentional claims into line with the statue for negligent claims, which is already three years. 

From a practical perspective, it may not make much of a difference, except in cases where there are likely to be claims of both negligent and intentional action.  For instance, negligent hiring and supervision claims often include claims of intentional action by the employee, or claims of inadequate security which often include claims of an underlying attack by a patron or invitee. 

This change might also curb attempts by plaintiffs’ counsel to characterize intentional behavior as negligent in order to obtain the benefit of a longer statute of limitation.  While not often successful, this strategy can cause expensive motion practice which increase settlement leverage.

S.B.20, passed by the Wisconsin legislature in Madison and sent to Governor Doyle for his signature, ratchets up the cost of discrimination on employers.  Under current statutes, an employer can be required to reinstate a discriminated-against employee, pay back pay, and cover the successful claimant’s attorney’s fees. 

The new bill would, in addition, permit the employee or the Department of Workforce to sue in circuit court to recover compensatory and punitive damages caused by the discrimination.  And as the cherry on top, an employer found liable would pay an additional 10% surcharge, based on the total amount of compensatory and punitive damages, into the circuit court.  According to the bill, this additional penalty would be used to further enforce the so-called Fair Employment Law.

As of this writing, Doyle hadn’t signed the bill yet, nor had his office indicated his intent.  Honestly, though, does anyone really think that Doyle won’t sign this?

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.