Wis. Stat. § 895.045

Section 895.045(1) permits recovery when the plaintiff’s negligence is no greater than the defendant’s; competing facts about their relative fault require a jury to decide.

Bain v. Tielens Construction, Inc. · filed 2006-05-16(1)

Ultimately, this case contains too many competing facts and inferences regarding which party was negligent and to what extent. It is more appropriately resolved by a jury, not resolved on summary judgment.

Section 895.045(1) bars recovery when the plaintiff is more negligent than the defendant; relative fault ordinarily is for the factfinder.

Zick v. United States · filed 2013-08-27(1)

Under Wisconsin’s doctrine of “modified comparative negligence,” if the plaintiff in a negligence action was himself negligent and more responsible for the injury than the defendant, there can be no recovery. ... The court does not doubt that Zick was at least somewhat negligent under the circumstances, but it is not as yet prepared to find as a matter of law that Zick was more negligent than Jackson.

Section 895.045 requires the proportional fault of all tortfeasors, including those not named as defendants, to be determined when applying comparative negligence.

William N. Spearing and Trudy Spearing v. National Iron Company, Pettibone Corporation, and Pettibone International Sale · filed 1985-07-30

And independently of the Ontario statute the logic of the Wisconsin comparative negligence law requires that the proportional fault of all tortfeasors be determined, whether or not they are named as defendants. This is a necessary step in fixing the proportional fault of the plaintiff and of the named defendant(s).

Section 895.045 bars a plaintiff's recovery when the plaintiff's contributory negligence is greater than the negligence of the person against whom recovery is sought.

Burch v. American Family Mutual Insurance · filed 1996-01-30

Recovery for negligence is barred if the plaintiffs contributory negligence is greater than that of "the person against whom recovery is sought." Wis. Stat. § 895.045. Paul Burch's contributory negligence by law bars him from recovering damages for injuries sustained in this accident.

Section 895.045 makes a plaintiff’s confrontation with an open and obvious danger an element for the jury to consider when apportioning comparative negligence.

Westlund v. Werner Co. · filed 1997-07-15

Instead, a plaintiffs confrontation of an open and obvious danger is merely an element to be considered by the jury in apportioning negligence under Wisconsin’s comparative negligence law, Wis. Stat. § 895.045.

Section 895.045 applies to accident negligence, so comparative negligence can reduce or bar recovery; helmet negligence is treated only as a limitation on damages and cannot bar recovery.

Stehlik v. Rhoads · filed 2002-06-26

Only the former is subject to Wis. Stat. § 895.045, because helmet negligence, like seat belt negligence, is a limitation on damages, not a potential bar to recovery.

Section 895.045(1) bars a plaintiff's recovery when the plaintiff's negligence is greater than any defendant's negligence.

Peters v. Menard, Inc. · filed 1999-03-02(1)

Therefore, we hold that plaintiffs are barred from recovery pursuant to Wis. Stat. § 895.045(1) because Peters' negligence exceeded any negligence which could be placed upon defendants, as a matter of law.

Section 895.045(1) bars a negligent plaintiff's recovery when the plaintiff's negligence is greater than the defendant's.

Riel v. United States · filed 2021-03-11(1)

Under Wisconsin law, a plaintiff may not recover for her injuries if (1) she was negligent, and (2) her negligence was greater than the negligence of the defendant. Wis. Stat. § 895.045(1).

Section 895.045 bars recovery when a plaintiff's causal negligence is 51 percent or more, but a plaintiff whose causal negligence is less than 51 percent may recover damages.

Morden v. Continental AG · filed 2000-06-16

The contributory negligence statute does not bar recovery to a plaintiff whose percentage of causal negligence is less than 51 percent. Wis. Stat. § 895.045. The jury apportioned 50 percent of the negligence to Continental and the other 50 percent to Christine Morden. Consequently, the statute does not preclude Christine Morden from recovering damages.

Section 895.045 bars recovery when the plaintiff's negligence is greater than the negligence of the party from whom recovery is sought, rather than merely reducing damages.

Jankee v. Clark County · filed 2000-06-22

Wisconsin's contributory negligence statute operates as a form of comparative negligence, barring recovery if the negligence of a plaintiff exceeds that of the party from whom the plaintiff seeks recovery.

Section 895.045 does not bar an insurer's subrogation recovery when the verdict contains no finding or percentage assigning negligence to the insured for its own property damage.

Szalacinski v. Campbell · filed 2008-09-03

Given the absence of a special verdict question related to Grand Marquis' contributory negligence as to its property damage, the Szalacinskis' argument that American Family is barred from subrogation recovery because Grand Marquis' negligence was greater than that of Lukes and Campbell also fails. There was no question on the verdict as to Grand Marquis' liability for its property damage. Because there was no question regarding whether Grand Marquis was causally negligent for its own property damage and no percentage attributed to Grand Marquis for contributory negligence in this regard, contrary to the Szalacinskis' position, Wis. Stat. § 895.045 (2003-04) does not bar recovery by American Family Insurance.

Section 895.045(1)'s comparative-negligence amendment does not apply to strict product-liability claims, so the plaintiff's negligence is compared with the product's defectiveness rather than separately with each defendant's negligence.

Fuchsgruber v. Custom Accessories, Inc. · filed 2001-07-02(1)

We conclude, therefore, that the 1995 amendment to the comparative negligence statute, Wis. Stat. § 895.045(1), does not apply to strict product liability claims. The traditional plaintiff-to-product comparison, followed by an apportionment of contribution rights among defendants, remains the law in the field of product liability.

Section 895.045(3)(b) bars recovery in a strict-liability case when the injured party's percentage of causal responsibility exceeds the percentage attributable to the product defect.

Burton v. American Cyanamid Co · filed 2019-09-19(3)(b)

Further, Wis. Stat. § 895.045(3)(b) provides additional protection in strict liability cases: if an injured party’s percentage of causal responsibility exceeds the percentage resulting from the defect in the product, the injured party cannot recover from the manufacturer of the product.

Section 895.045(1) requires comparative-negligence reductions to be applied to the plaintiff's actual damages before applying a statutory limit on recovery.

Bryhan v. Pink · filed 2006-05-18(1)

Accordingly, we conclude that when a trial court finds that a small claims plaintiffs actual damages exceed the statutory award limit of $5,000, the court should apply any reduction for comparative negligence to the damages found before applying the statutory limit.

Section 895.045(1) bars recovery when the claimant's contributory negligence is greater than the defendant's negligence.

Jones v. United States · filed 2016-07-11(1)

Even if allowing a rolling chair was negligent .on the clinic’s part, I would conclude as a matter of law that the Plaintiffs negligence exceeded that of the Defendant; under Wis. Stat. § 895.045(1), her recovery would be barred.

Section 895.045 applies Wisconsin's comparative-negligence rule to a pendent state-law tort claim, with damages allocated in proportion to each tortfeasor's relative fault.

Kenosha Auto Transport Corp. v. Algoma Central Railway · filed 1983-12-14

In this case, the principles of tort law and, in particular, comparative negligence apply. The damage liability must be allocated in proportion to the relative fault of each tortfeasor. Because KAT’s claim against Morelli is a pendent claim, Wisconsin’s comparative negligence statute, Wis. Stat. § 895.045, will apply.

Section 895.045(1) allows a plaintiff to recover for negligence only when the plaintiff's negligence is no greater than the negligence of the person sued, measured separately against each causally negligent person.

Harrington v. Nordentoft · filed 2023-06-15(1)

Wisconsin is a comparative negligence state. See Wis. Stat. § 895.045. Subsection (1) of section 895.045 provides that “[c]ontributory negligence does not bar recovery in an action by any person . . . to recover damages for negligence resulting . . . in injury to person . . . , if that negligence was not greater than the negligence of the person against whom recovery is sought.” The statute further provides that “[t]he negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent.” Id. “Generally, the apportionment of negligence is for the jury.” ... “Where, however, it appears that the negligence of the plaintiff is as a matter of law equal to or greater than that of the defendant, it is not only within the power of the court but it is the duty of the court to so hold.” ... Because Harrington was more negligent than Ms. Simms and Chaos Farms as a matter of law, Wisconsin law precludes his negligence claims against those defendants.

Section 895.045(1) permits a finding of contributory negligence against one party even when the other party’s negligence is undisputed.

Nies v. Astrel · filed 2025-02-05(1)

While it is undisputed that Astrel failed to stop at a stop sign, this fact does not bar a finding that Nies was contributorily negligent. See Wis. Stat. § 895.045(1); see also, e.g., Wis. J.I. Civ. 1090 (noting that a driver must maintain a lookout at an intersection).

Section 895.045 makes contributory negligence a partial defense: a negligent plaintiff is barred only when the plaintiff’s negligence is greater than the defendant’s.

Orthmann v. Apple River Campground, Inc. · filed 1985-03-19

And even if we could say that Orthmann was negligent as a matter of law, this would not authorize dismissal of the complaint, since contributory negligence is no longer a complete defense in Wisconsin, unless the victim’s negligence is greater than the injurer’s. Wis.Stat. § 895.045.

Section 895.045 bars a plaintiff from recovering damages when the plaintiff's negligence is greater than the defendant's negligence.

Mielke v. United States · filed 1987-08-21

The plaintiff will be barred from recovery if her own negligence is determined to be greater than that attributed to the defendant. Wis.Stat. § 895.045. ... The latter two conditions, however, were, in my opinion, in larger measure caused by Ms. Mielke’s contributory negligence. ... Moreover, with respect to her infection and trismus, I conclude that Ms. Mielke’s contributory negligence was greater than any arguable negligence by Dr. Lewitzke. Accordingly, Ms. Mielke is barred from any recovery for any resulting damages in this regard.

Section 895.045 makes contributory negligence a complete defense only when the victim's negligence is greater than the injurer's, and comparative negligence reduces the award by the victim's percentage of negligence.

Ozzello v. Peterson Builders, Inc. · filed 1990-08-24

Contributory negligence is not a complete defense unless the victim’s negligence is greater than the injurer’s. ... Under Wisconsin’s principles of comparative negligence, this award must be reduced by forty percent to reflect William Ozzello’s degree of contributory negligence.

Section 895.045 requires a separate negligence comparison between the defendant and each plaintiff when the plaintiffs’ passive negligence contributed only to their own injuries.

Vroman v. Kempke · filed 1967-05-09

Passive negligence of the various plaintiffs cannot be compared in the same question; two separate comparison questions must be submitted, each involving only the negligence of one plaintiff and the defendant driver.

Section 895.045 compares each party’s contribution to the total causal negligence in the case.

Cirillo v. City of Milwaukee · filed 1967-05-09

What is contemplated by our comparative-negligence statute, sec. 895.045, is that the totality of the causal negligence present in the case will be examined to determine the contribution each party has made to that whole.

Section 895.045 places apportionment of negligence primarily with the jury; a court will disturb the jury’s apportionment only in an unusual case.

Williams v. Milwaukee & Suburban Transport Corp. · filed 1967-12-29

The court considers apportionment questions under sec. 895.045, Stats., to be peculiarly within the province of the jury, and only in an unusual case will the court upset the jury’s apportionment.

Section 895.045 applies to causal negligence and requires comparing each party’s contribution to the injury.

Lovesee v. Allied Development Corp. · filed 1970-01-09

It is true that sec. 895.045, Stats., says nothing about cause but this section has been construed from its beginning to apply only to causal negligence ... and has been understood to require an evaluation and a comparison of the effect of the negligence to determine the relative percentage of contribution and to express such determination in percentage of the negligence of each party.

Section 895.045 permits a directed verdict when the plaintiff’s causal negligence exceeds the defendant’s as a matter of law.

Verrette v. Chicago & North Western Railway · filed 1968-10-01

Under the facts of this case we are clearly of the opinion that the causal negligence of the plaintiff exceeded that of the defendant. The trial court did not err in granting the motion for directed verdict.

Section 895.045 bars recovery when the plaintiff’s negligence exceeds the defendant’s, and a reasonable jury apportionment will be upheld.

Jacobs v. Milwaukee & Suburban Transport Corp. · filed 1969-03-04

We are not inclined to upset the apportionment of negligence. The apportionment was within a reasonable range and in any event the jury could reasonably find as it did that Mrs. Jacobs’ negligence contributed more to her injuries than the negligence of the driver.

Section 895.045 permits recovery when a plaintiff’s negligence equals the defendant’s under the 1971 amendment; before that amendment, equal negligence barred recovery.

Bourassa v. Gateway Erectors, Inc. · filed 1972-02-29

As Wisconsin’s comparative negligence law stood on the date of this accident, Bourassa could recover if his contributory negligence does not equal Gateway’s negligence. By eh. 47, Laws of 19'71, sec. 895.045, Stats., was amended to provide a plaintiff may recover against the negligent defendant if his contributory negligence is not greater than the defendant’s negligence. This allows recovery in cases where the negligence is found to be equal.

Section 895.045 bars a plaintiff from recovery when the plaintiff is at least fifty-one percent causally negligent.

Johnson v. Grzadzielewski · filed 1990-11-14

Since Johnson failed to exercise ordinary care, both in "expressing" the elevator and in climbing out of it, he was at least fifty-one percent causally negligent, and is therefore barred from recovery as a matter of law.

Section 895.045 requires a plaintiff’s negligence to be compared separately with each defendant’s negligence in a case involving multiple tortfeasors.

Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Construction Corp. · filed 1980-05-06

It is clear that our present contributory negligence statute, sec. 895.045, Stats.,9 requires that in cases in*327volving multiple tortfeasors the negligence of a plaintiff is compared to the individual negligence of each defendant rather than the combined negligence of all defendants, as Ford, Bacon & Davis advocates.

Section 895.045 requires a plaintiff’s contributory negligence to be compared with each defendant’s negligence individually.

Delvaux v. Vanden Langenberg · filed 1986-06-04

Without eroding our common law authority, we reaffirm our holding that sec. 895.045 requires that a plaintiff's contributory negligence be compared with the negligence of each individual defendant.

Section 895.045 bars recovery when the plaintiff's negligence exceeds the defendant's negligence.

Suhaysik v. Milwaukee Cheese Co. · filed 1986-06-11

As noted above, the jury returned a verdict finding Suhaysik 53.33% negligent and Milwaukee Cheese 46.67% negligent. Under Wisconsin's comparative negligence law, Raymond Suhaysik was therefore not entitled to recover any of his substantial damages ... from Milwaukee Cheese.

Section 895.045 reduces damages in proportion to the claimant’s negligence and bars recovery when that negligence exceeds the defendant’s.

White v. Leeder · filed 1989-06-01

Section 895.045, Stats., provides that any damages allowed are diminished in proportion to the amount of negligence attributable to the person recovering, and if such negligence is greater than the negligence of the person against whom recovery is sought, contributory negligence acts as a complete bar to recovery.

Section 895.045 permits recovery when the plaintiff’s negligence is no greater than the defendant’s; negligence is generally apportioned by the jury unless the plaintiff’s negligence clearly exceeds the defendant’s as a matter of law.

Kloes v. Eau Claire Cavalier Baseball Ass'n · filed 1992-06-30

Section 895.045 states that a plaintiffs contributory negligence shall not bar his recovery if his negligence was not greater than the negligence of the defendant.

Section 895.045 permits a court to bar recovery when a plaintiff who confronts an open and obvious danger is more negligent than the defendant as a matter of law.

Hertelendy v. Agway Insurance Co. · filed 1993-05-25

In ordinary negligence cases, the open and obvious danger doctrine involves nothing more than the determination, within the context of comparative negligence, that the plaintiffs negligence exceeds another's as a matter of law, precluding recovery.

Section 895.045 treats an open and obvious danger in an ordinary negligence case as a comparison of negligence; it does not bar recovery when the plaintiff is legally incapable of negligence.

Rockweit Ex Rel. Donohue v. Senecal · filed 1994-08-24

Instead, it is a weighing of negligence as a matter of law and its application bars the plaintiffs recovery under the contributory negligence statute, § 895.045, Stats. ... Because Anthony cannot be negligent as a matter of law pursuant to § 891.44, STATS., we conclude that the trial court erred in applying the open and obvious danger defense to dismiss Anthony's negligence claim.

In an ordinary negligence case, an open and obvious danger is a factor for the jury to weigh when apportioning negligence and does not automatically bar recovery.

Wagner v. Wisconsin Municipal Mutual Insurance · filed 1999-09-28

Where a plaintiff, such as Wagner, arguably confronts an open and obvious danger, it is merely an element to be considered by the jury in apportioning negligence and will not operate to completely bar the plaintiffs recovery.

Section 895.045 permits a plaintiff to recover when the plaintiff’s contributory negligence equals the defendant’s.

Kozlowski v. John E. Smith's Sons Co. · filed 1979-02-27

Schuh v. Fox River Tractor Co., supra, was litigated prior to the 1971 amendment to sec. 895.045, Stats., permitting a plaintiff’s recovery if his contributory negligence is equal to that of a defendant’s.

Section 895.045(1) limits a tortfeasor with less than 51% causal negligence to that percentage of the damages, while a tortfeasor with 51% or more is jointly and severally liable for all damages allowed.

Blumenfeld v. Jeans · filed 2011-06-29(1)

Wisconsin Stat. § 895.045(1) governs when a tortfeasor is considered jointly and severally liable for a plaintiffs damages: ... 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 shall be jointly and severally liable for the damages allowed. ... So, in this case, Blumenfeld may collect up to 40% of the damages awarded by the jury from Jeans. However, to the extent that Jeans does not pay, Blumenfeld may collect up to 100% of the damages from Erie.

Section 895.045(1) makes a person whose causal negligence is 51% or more jointly and severally liable for the allowed damages, while limiting a person below 51% to the percentage of causal negligence attributed to that person.

Estate of Capistrant v. Froedtert Memorial Lutheran Hospital, Inc. · filed 2003-09-23(1)

"A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed." ... "Stated another way, Wis. Stat. § 895.045(1) provides: \"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.\""

Section 895.045(1)'s 1995 comparative-negligence amendment does not apply to strict product liability actions, so joint and several liability remains applicable.

Industrial Risk Insurers & Quad Graphics, Inc. v. American Engineering Testing, Inc. · filed 2009-04-14(1)

Although Leavitt urges that it should only be obligated to pay for the portion of damages attributed to it by the jury, i.e., 10%, this court does not have the authority to modify binding precedent, which in this instance, mandates the application of joint and several liability in strict product liability claims.

Section 895.045(2) codifies concerted-action liability and requires a common scheme or plan, mutual tortious acts in furtherance, and that those acts cause the damages before joint and several liability applies.

Richards v. Badger Mutual Insurance · filed 2008-06-03(2)

We conclude as follows: (1) Wis. Stat. § 895.045(2) is the legislative codification of the concerted action theory of liability; (2) the damages in this case resulted from the consumption of beer to the point of intoxication and the subsequent decision to drive while intoxicated; and (3) although Robert Zimmerlee, David Schrimpf, and Tomakia Pratchet acted "in accordance with a common scheme or plan" to procure beer, they did not so act in consuming beer to the point of intoxication and in the subsequent act of driving while intoxicated, and, therefore, David Schrimpf is not jointly and severally hable under § 895.045(2) for the death of Chris Richards.

Section 895.045 preserves joint and several liability: a tortfeasor whose negligence exceeds the plaintiff’s may be liable for all damages recoverable after reduction for the plaintiff’s negligence.

Chille v. Howell · filed 1967-04-11

The construction of the comparative-negligence statute as announced in Walker v. Kroger Grocery & Baking Co., supra, has been the law since 1934; several of our cases have reaffirmed the rule based upon the ancient common-law concept of joint and several liability of joint tort-feasors. We are not persuaded it should be changed.

Section 895.045 does not limit a co-tortfeasor’s liability to that tortfeasor’s percentage of causal negligence; joint and several liability remains.

Fitzgerald v. Badger State Mutual Casualty Co. · filed 1975-03-28

The second issue presented on this appeal is whether the Wisconsin doctrine of comparative negligence should be extended so that a co-tort-feasor could not be held liable for more than the sum which represented his percentage of causal negligence. ... No new argument is advanced here warranting our modification or reversal of Chille.

Section 895.045 permits an injured party to recover from a joint tortfeasor, with damages reduced by the injured party’s share of negligence.

Group Health Cooperative of Eau Claire v. Hartland Cicero Mutual Insurance · filed 1991-09-17

These cases make clear that the law permits the injured party to collect all of her damages from a joint tortfeasor except in proportion to the amount of negligence attributed to her.

Section 895.045’s bar on recovery when a plaintiff is more than 50% at fault does not apply to the equitable resolution of a subrogation dispute.

Ives v. Coopertools · filed 1995-10-31

We conclude that the statutory ban on negligence claims where the plaintiff is more than 50% at fault, § 895.045, Stats., has no application to the resolution of the subrogation issue in this case.

Section 895.045(1) applies even when the plaintiff has no contributory negligence; a defendant must be at least 51% causally negligent to be jointly and severally liable.

Thomas v. Bickler · filed 2002-10-01(1)

And, contrary to Thomas' contention, the statute applies in instances where the plaintiff has no contributory negligence.

Section 895.045(1) cannot be applied retroactively to a negligence claim that accrued before the amendment because doing so would unconstitutionally impair the claimant's vested right to recover full damages under joint and several liability.

Matthies v. Positive Safety Manufacturing Co. · filed 2001-07-02(1)

We hold that retroactive application of § 895.045(1) to Matthies' negligence claim would be unconstitutional, and we thus affirm the circuit court.

Section 895.045(2) imposes concerted-action joint and several liability only when the parties agreed, expressly or tacitly, to a common scheme or plan aimed at the tortious conduct that caused the injury.

Richards v. Badger Mutual Insurance · filed 2006-11-14(2)

We hold that to be liable for concerted action under Wis. Stat. § 895.045(2) the persons must have acted in accordance with a common scheme or plan to accomplish the result that caused the injury.

The 1971 amendment to § 895.045 does not apply retroactively.

McGowan v. Story · filed 1975-10-28

The trial judge in this case correctly concluded that sec. 895.045, Stats., as amended in 1971, has no retrospective operation; and, accordingly, the recovery of the plaintiff must be based on the legislation as it existed prior to the amendment of the statute.

The 1971 amendment to § 895.045, which permits recovery when contributory negligence is no greater than the opposing party’s negligence, does not apply to an injury and action that preceded its effective date.

Schuh v. Fox River Tractor Co. · filed 1974-06-04

Sec. 895.045, Stats., was amended by ch. 47, Laws of 1971, effective June 23, 1971, to permit recovery if the contributory negligence is not greater than the negligence of the party against whom recovery is sought. In the instant case the injury occurred October 5, 1965, and action was commenced September 17, 1968; therefore, sec. 895.045, as amended, is not applicable to this action.

Subsection (3) permits an injury to have more than one cause, so a manufacturer's negligent failure to warn may combine with a physician's negligence to cause the plaintiff's injury.

Platten v. Smith & Nephew, Inc. · filed 2023-02-08(3)

Under Wisconsin law, there can be more than one cause of an injury. A failure to more effectively warn of risks associated with foreseeable uses of a manufacturer’s products can combine with the negligence of a physician to cause a plaintiff’s injury. See Wis. Stat. § 895.045(3). In light of the evidence of Smith & Nephew’s failure to effectively warn surgeons of the risks involved, Dr. Colligan’s testimony that he would not have used a CoCr femoral head in Plaintiff’s revision surgery had he known that Smith & Nephew recommended against their use in cases such as Plaintiff’s is enough to create a jury question. Smith & Nephew is therefore not entitled to summary judgment on Plaintiff’s failure to warn claim.

Section 895.045(1) reduces a plaintiff’s damages in proportion to the plaintiff’s contributory negligence.

Clements v. United States · filed 2024-08-16(1)

Wisconsin is a comparative negligence state; thus, a plaintiff’s recovery of damages is reduced by the percent the plaintiff is contributorily negligent. See Wis. Stat. § 895.045(1) (“[A]ny damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering.”).

Section 895.045 requires damages to be calculated in full before they are reduced by the plaintiff’s share of negligence.

Nimmer v. Purtell · filed 1975-06-16

Sec. 895.045, Stats., states that in a personal injury action “. . . damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.” ... Therefore, the instruction to the jury to compute not all of the damages that the plaintiff suffered but only that portion caused by the defendant’s negligence was error.

Section 895.045 requires damages to be reduced to account for the plaintiff’s apportioned negligence.

Ynocencio v. Fesko · filed 1983-10-04

The parties agree on appeal that the circuit court erred in not reducing the total damages in accordance with the stipulation that apportioned 10 percent negligence to the plaintiff driver. We modify the judgment accordingly. Sec. 895.045, Stats. 1981-82.

Section 895.045 reduces damages allowed against a tortfeasor for contributory negligence but does not separately reduce a medical assistance provider’s share of the judgment.

Perkins v. Utnehmer · filed 1984-12-27

The contributory negligence statute, sec. 895.045, Stats., also does not require such a result, because contributory negligence only diminishes the damages allowed against the tortfeasor.

Section 895.045 limits a spouse’s derivative claim for medical expenses or loss of consortium according to the causal negligence of both spouses relative to the defendant.

White v. Lunder · filed 1975-02-04

If the causal negligence of the claiming spouse is greater than the person against whom the claim is made, he should be denied recovery because of the comparative negligence statute. Likewise, if the causal negligence of the injured spouse is greater than that of the person against whom recovery is sought, the claiming spouse should be denied recovery because his action is derivative.

Section 895.045 requires a spouse’s derivative loss-of-consortium award to be reduced by the injured spouse’s share of negligence.

Victorson v. Milwaukee & Suburban Transport Corp. · filed 1975-10-28

This method is necessary because of the interrelated nature of the claims and because of the policy embodied in sec. 895.045, Stats., the comparative negligence statute. Under the facts here, the derivative claim of $15,000 for loss of consortium by the plaintiff’s wife, Lillian Victorson, must be reduced by her injured spouse’s negligence of 35 percent.

Section 895.045 reduces a negligent wrongful death beneficiary’s recovery without reducing a non-negligent beneficiary’s recovery.

Chang v. State Farm Mutual Automobile Insurance · filed 1994-04-20

We conclude that the recovery of the non-negligent spouse is not subject to reduction. Only the negligent spouse's recovery is reduced under sections 895.04(7) and 895.045, Stats.

Section 895.045 permits comparison of an injured employee’s negligence with the combined negligence of the employer and a third party, but when the employee has a separate workers’ compensation remedy against the employer, the third party is liable only for its own share of the damages.

Soeldner v. White Metal Rolling & Stamping Corp. · filed 1979-07-23

For these reasons, I believe that in a case like this the Wisconsin supreme court following May would hold the defendant White Metal responsible for 8% of the plaintiffs’ damages — the extent that White Metal was found to be causally negligent. This holding is limited to those instances in which a plaintiff has a separate remedy against his employer via the workman’s compensation process.

Section 895.045 generally requires comparing the plaintiff’s negligence with each defendant’s negligence individually to determine whether the plaintiff may recover.

Reiter v. Dyken · filed 1980-04-08

Subsequent cases have affirmed Schwenn’s holding that sec. 895.045, Stats., provides for the individual comparison of the plaintiff’s negligence with that of each defendant to determine if the plaintiff is entitled to recover.

Section 895.045 did not supersede earlier statutes that completely barred contributory negligence as a defense in particular actions.

D.L. Ex Rel. Friederichs v. Huebner · filed 1983-02-03

Since the comparative negligence statute did not supersede prior statutes which had completely abrogated the defense of contributory negligence in particular actions, to determine whether the doctrine of comparative negligence applies in absolute liability personal injury cases arising from violation of the child labor laws we must first determine whether the child can be contributorily negligent in a case involving violation of the child labor laws.

Section 895.045 excludes seat-belt negligence that causes injury but not the collision from the contributory negligence comparison; that negligence instead reduces recoverable damages.

Foley v. City of West Allis · filed 1983-07-01

When negligence consisting of failing to wear an available seat belt is not a cause of the collision but is a cause of a party’s injury, such negligence should not be used to determine the injured party’s contributory negligence for purposes of sec. 895.045, but should be used only to reduce the amount of damages recoverable.

Section 895.045 applies to DES claims under both negligence and strict products liability theories, with liability apportioned according to each defendant’s causal negligence.

Collins v. Eli Lilly & Co. · filed 1984-01-04

Regardless of which causes of action the plaintiff in this case proceeds upon, the jury will have to apply Wisconsin’s comparative negligence statute, sec. 895.045, *199Stats.13 Under Wisconsin’s comparative negligence doctrine, the amount of liability — and hence, the proportion of the total damages — is determined in proportion to the percentage of causal negligence attributable to each defendant.

Section 895.045 does not reduce punitive damages in proportion to comparative negligence, but punitive damages cannot be recovered when the section bars recovery of actual damages.

Tucker v. Marcus · filed 1988-02-11

We expressly decline to adopt an interpretation of sec. 895.045 under which punitive damages would be deemed "damages for negligence” and, as such, subject to proportionate reduction. Our decision today represents a necessary extension of those earlier decisions in which we have deferred to the legislative adoption of a system of modified comparative negligence and to the theory that a claimant should not be "allowed to profit from his own wrong.” Vincent, 47 Wis. 2d at 126. Accordingly, we hold that punitive damages may not be recovered where actual damages are unavailable due to the operation of sec. 895.045, Stats.

Section 895.045 does not require comparing a plaintiff’s negligence with a defendant’s strict responsibility for misrepresentation.

Reda v. Sincaban · filed 1988-05-19

Section 895.045, Stats., does not therefore require a comparison of the Redas’ negligence with Kiesling’s strict responsibility.

Section 895.045’s comparative negligence threshold does not govern claims within admiralty jurisdiction; admiralty’s comparative negligence rule controls.

Brotherhood Shipping Co., Ltd. v. St. Paul Fire & Marine Insurance Company and City of Milwaukee, and Afram Lines (International), Inc. · filed 1993-02-03

Now in many states that embrace comparative negligence the plaintiff’s negligence remains a defense to liability if he fails to prove that the defendant’s negligence was more than 50 percent responsible for the accident. Wisconsin is such a state. Wis.Stat. § 895.045. ... While the plaintiff might not get far under Wisconsin tort law, for the reason already suggested (the difference between Wisconsin and admiralty comparative-negligence law), Wisconsin tort law would not apply. Admiralty law, and hence the admiralty rule on comparative negligence, furnishes the rule of decision in any case within the admiralty jurisdiction, even if it is within the diversity jurisdiction as well so that the plaintiff is entitled to demand a jury.

Section 895.045(2) makes defendants who acted in concert jointly and severally liable only after substantive law establishes their liability to the plaintiff.

Danks v. Stock Building Supply, Inc. · filed 2006-12-07(2)

Subsection (2) simply modifies subsection (1) of the statute to provide that all defendants who are legally responsible for causing a plaintiffs damages, and who acted in concert in so doing, are jointly and severally liable for the plaintiffs damages, irrespective of whether a given defendant's apportioned caused negligence is less than 51%.