Buried deep within Wisconsin’s massive 2009 Biennial Budget Bill, Assembly Bill 75, are proposed changes to the contributory negligence law which could create extensive liability for businesses which are only minimally involved in causing injury to a plaintiff.
Currently, the law provides that a plaintiff may recover from a defendant all of his damages only if the defendant is found to be more than 51% negligent. Such a defendant is jointly and severally liable for the plaintiff’s injuries. Assembly Bill 75, however, would change the law so that a defendant would be jointly and severally liable for all injuries, and therefore all damages, if the defendant is found to have been as negligent or more negligent than the plaintiff.
The implications are obvious and potentially devastating. If an employee of a business participates in causing injury, and it is determined that his negligence represents, for example, only 5% of total causal negligence, his employer could be liable for all damages sustained by the plaintiff if it is determined that the plaintiff was 5% negligent or less than 5% negligent.
At this time, the law provides that the negligence of a plaintiff is separately measured against the negligence of each defendant. The plaintiff can recover against a defendant only if the defendant is more negligent than the plaintiff. The new law, however, would provide that the negligence of the plaintiff is to be measured against the combined negligence of all defendants. As a result, a plaintiff will be successful as long as his negligence is not greater than than of all of the defendants combined. From the perspective of the plaintiff, then, "the more defendants the merrier."
The proposed changes would increase the liability exposure of business, and could encourage plaintiffs to pursue action against even those defendants whose negligence is minimal. They would also compel businesses to settle plaintiffs’ claims rather than litigate them, for fear of being held jointly and severally liable for all damages.