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Joint & Several Liability In Wisconsin

Wisconsin is what is known as a “modified comparative negligence state,” meaning that a plaintiff’s recovery will be reduced by the percentage of causal negligence attributed to the plaintiff. However, a plaintiff’s recovery will be completely barred if the percentage of causal negligence attributed to the plaintiff is greater than the percentage attributed to the defendant. This is a very complex distinction, and an example might shed some light.

Let’s say that Aaron is driving down a city street one afternoon. Bailey is a pedestrian who is about the cross the street. Bailey fails to check for traffic and even though she is not in the crosswalk, she crosses anyway. Aaron is driving at or slightly above the speed limit and collides with Bailey. Bailey’s injuries amount to $100,000. Bailey sues Aaron for her injuries, but Aaron asserts a defense in court claiming that Bailey’s own actions contributed to the accident, too.

In the present case, fault needs to be assigned. Assume that 80% of the fault was attributed to Aaron and 20% of the fault was attributed to Bailey. Under Wisconsin law, Bailey’s total damages would be reduced by her share of the negligence, 20%. Now, Bailey could only receive a maximum of $80,000. However, if Bailey did more than just fail to check for traffic and jaywalk, and her total negligence amounted to more than 50%, her claim would be barred entirely.

Now, let’s imagine another scenario. Aaron is once again driving down a city street. He fails to use his blinker while attempting to turn left. Charles is driving close behind Aaron and rear ends him. Davis, while on his phone, drives through the red light and sideswipes Aaron in the intersection. Aaron’s total injuries amount to $100,000.

This scenario, again, will require fault to be assigned. Let’s assume that Aaron is found to be 15% at fault for failing to utilize his turn signal, Charles is 30% at fault for following Aaron too closely, and Davis is 55% at fault for running the red light. In this situation, a doctrine known as joint and several liability comes into play. This doctrine states that a defendant can be responsible for the entire verdict if they are found to be 51% or more at fault. A defendant who is found to bear less than 51% of the blame will be limited to the fault assigned to them.

Here, since Aaron is 15% at fault, his damages will be capped at $85,000. Now, Aaron has two options. He can either go after Davis for the entire $85,000 (because Davis is more than 51% at fault), or he can pursue each defendant for their assigned fault designations. This doctrine attempts to ensure that the injured party is made whole in one way or another and to reduce the amount of litigation that the injured party must endure to be made whole.

If one defendant is on the hook for the entire verdict, he may then pursue the other defendants for their share of the blame. In the above scenario, if Aaron decides to collect the entire $85,000 from Davis, Davis has the right to attempt to collect $30,000 from Charles.

In Wisconsin, the rules of liability are complicated and contingent on a host of factors, so it is best to consult with an attorney when issues such as these arise. Contact us now for a consultation.


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