LIABILITY

Statutes of Limitation

• Bodily Injury – Three (3) years;
• Property Damages – Six (6) years;
• Breach of Contract (including cargo losses) – Six (6) years.

Negligent Entrustment, Hiring, Retention, Supervision

In Wisconsin, there are three ways an employer can be held liable for the acts of employees: (1) negligent hiring, retention, supervision, or training, (2) respondeat superior, and (3) an employer who “knew or should have known” of the likelihood of the employee’s tortious conduct.

• For the employer to have a duty under negligent supervision, it must be foreseeable that employees entrusted with specific duties and authority be properly trained and that the failure to do so could result in harm to patrons. Second, if the employer fails to properly hire, train, or supervise employees, it breaches its duty to others. Third, there must be a causal connection between the conduct and the injury. Two questions are necessary to establish causation: Was the employee's wrongful act a cause in fact of the plaintiff's injury? Was the employer's negligence a cause in fact of the employee's wrongful act?
• For respondeat superior, an employer has liability of an employer for the acts of an employee within the scope of employment. In such a case, where the wrongful act of the employee, though willful, is strictly within the scope of his employment, the employer is liable for damages to the harmed party. This is upon the theory that what one does by an employer’s employee acting within the scope of his employment and for the employer’s benefit is the same, in legal effect, as though done by himself.
• Last, an employer is liable under the “knew or should have known” standard. Here, liability results not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. The employer is subject to liability only for such harm as is within the risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm.
• An example of this in a transportation law context may include instances where an employer becomes aware the employee drives in an exceedingly reckless manner but continues to employ him as a truck driver, nonetheless.

Course and Scope of Employment

       
• The question as to vicarious liability is whether at the time of the act alleged, the employee's conduct was within the scope of his employment, which we have defined as conduct that is actuated, at least in part, by a purpose to serve the employer.
• The Wisconsin Jury Instructions state as follows: Scope of employment means that at or about the time of the accident in question, the driver was doing something directly or indirectly connected with the business of his/her employer and in the course of his/her duty as an employee.

Comparative or Contributory Negligence

• Wisconsin is a modified comparative negligence state. As such, if a plaintiff is 51% or more liable, s/he cannot recover. Further, if there are multiple defendants, if the plaintiff is found more liable than a given defendant, that defendant does not owe the plaintiff any damages. The negligence of the plaintiff is measured separately against the negligence of each person/entity found to be causally negligent.
• For example, if a three-car accident occurs, and the jury apportions 40% of the negligence against the plaintiff, 30% of negligence against the driver of car #2, and 30% of negligence against the driver of car #3, plaintiff recovers nothing.
• Similarly, of a different jury apportions 40% liability against plaintiff, 50% of negligence against the driver of car #2, and 10% against the driver of car #3, the plaintiff would recover against the driver of car #2 only.

• The plaintiff’s damages are reduced by his/her amount of negligence (except in cases where the plaintiff is found 51% or more negligent and cannot recover).
• A defendant whose share of causal negligence is 51% or more is jointly liable for all recoverable damages. Additionally, Wisconsin law imposes joint liability among defendants acting in a common scheme or plan. However, defendants cannot be jointly liable for punitive damages.
• Under Wisconsin law, where a driver is confronted by an emergency, not brought about or contributed to be his/her negligence, and the driver is compelled to act instantly to avoid the collision, the driver is not negligent if s/he makes a choice of action or inaction that an ordinarily prudent person might make if placed in the same position. This is true even if it later appears that his/her choice was not the best or safest course.

• This does not apply to a person whose negligence wholly or in part created the emergency. A person is not entitled to the benefit of this emergency rule unless s/he is without fault in creating the emergency.

Contribution or Implied Indemnity from Third-Parties

• Wisconsin has a common law right to contribution between joint tortfeasors. A successful claim for contribution requires (1) both parties must be joint tortfeasors, (2) both parties must have common liability to the same person because of their status as tortfeasors, and (3) one such party must have borne an unequal proportion of the common burden. Parties found jointly liable may seek contribution from one another.
• Contribution operates neatly in a single-theory context. When, for example, the plaintiff is 5% at fault, Defendant 1 is 55% at fault, and Defendant 2 is 40% at fault, and the plaintiff recovers fully (95% of the plaintiff’s damages) from jointly liable Defendant 1, Defendant 2 may be ordered to contribute his 40% liability to Defendant 1.
• With respect to indemnity, Wisconsin courts have found that equitable indemnification requires (1) the payment of damages and (2) the lack of liability. Equitable indemnification is where one person is exposed to liability the wrongful act of another in which s/he does not join.

Exclusivity of Workers Compensation

• Under Wisconsin law, when the conditions for an employer's liability under the Worker’s Compensation Act exist, the employee's right to recover under the Act shall be the employee's exclusive remedy against an employer.
• The basis for this prohibition lies in the Act’s exclusive remedy provision, which states that “the right to recovery of compensation . . . shall be the exclusive remedy against the employer, any other employee of the same employer and the worker’s compensation insurance carrier.” Importantly, the Act’s benefits constitute the exclusive remedy whenever the employee has a right to worker’s compensation benefits, even if the employee never makes a claim for benefits.
• There are exceptions to the exclusivity under the Worker’s Compensation Act for an assault by a co-employee, or arising out of the negligent operation by a co-employee of an automobile not owned or leased by the employer.

Seat Belt and Helmet Use

• An injured party can be deemed negligent in failing to use an available safety belt.. This defense is available only where an expert testifies and creates a causal connection between the injuries sustained and the failure to use the safety belt.

• A plaintiff’s failure to wear a safety belt is not evaluated in the liability analysis, but can be assessed in the amount of damages recoverable. Wisconsin case law restricts the amount by which damages are reduced for failure to wear a safety belt to 15%.
• A failure to use an available safety helmet cannot be considered by a jury. Indeed, evidence of use or nonuse of a helmet is not admissible at trial.

Spoliation

• A duty to preserve evidence arises where there is (1) pending or probable litigation involving various parties; (2) knowledge by a party of the existence or the likelihood of future litigation; (3) foreseeability of harm to others if the evidence is discarded or altered; and (4) the evidence is relevant to pending or future litigation.
• The failure to take adequate steps to preserve the evidence which is totally within a party’s control is sufficient to justify the imposition of sanctions.
• Decision whether to impose sanctions is committed to trial courts discretion
• Courts have authority to impose sanctions for spoliation of evidence, including (1) excluding evidence, (2) striking pleadings/entry of default judgment, and (3) imposition of fines.
• Dismissal/default judgment as a sanction for destruction of evidence requires a finding of egregious conduct. Egregious conduct means a conscious attempt to affect the outcome of litigation or a flagrant knowing disregard of the judicial process.

• Having formal record retention policies in place often creates a defense to a charge of spoliation.
• A successful record retention policy embodies three principles.

• Records should be maintained long enough to support the company's contractual and other obligations.
• Records should be maintained for at least that period of time required by applicable statutes and regulations.
• Records should only be discarded in the ordinary course of business pursuant to standard policies that specify the precise type of documents that are to be maintained under no circumstances can policy be suspended with knowledge lawsuit has been filed.

DAMAGES

Caps

There is no transportation specific cap on damages. Wis. Stat. § 893.82(6) caps non-economic damages at $250,000 on some claims against the state. Wis. Stat. § 893.80(3) caps non-economic damages at $50,000 for claims against local government. Also, Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death. Wis. Stat. § 895.04(4).

Joint & Several Liability

Defendant found 51% or more at fault is jointly and severally liable. Defendants less than 51% at fault are liable only to the percentage of negligence attributed to them. Wis. Stat. § 895.045.

Standard of proof required for compensatory damages

• The burden of proof in Wisconsin is to satisfy the jury “by the greater weight of the credible evidence, to a reasonable certainty.” The greater weight of the credible evidence means a preponderance of the evidence. Credible evidence means evidence you believe in light of reason and common sense. “Reasonable certainty” means that you are persuaded based upon a rational consideration of the evidence. Absolute certainty is not required, but a guess is not enough to meet the burden. WIS JI-CIVIL 200.
• “In considering the amount to be inserted by you in an answer to each damage question [for compensatory damages], the burden rests upon each person claiming damages to convince you by the greater weight of the credible evidence, to a reasonable certainty, that the person sustained damages (with respect to the element or elements mentioned in the question) and the amount of damages.” WIS JI-CIVIL 202.
• Collateral source (med billed v. paid): Wisconsin recognizes the collateral source rule. Under the collateral source rule, a plaintiff’s recovery cannot be reduce by payments or benefits from other sources. Koffman v. Leichtfuss, 2001 WI 111, ¶29, 246 Wis. 2d 31, 630 N.W.2d 201.

Hedonic damages

Hedonic damages, or damages for “loss of enjoyment of life,” are recoverable. They include those damages that result from one’s diminished capacity for enjoying life or due to the deprivations of the pleasures of life. Sawyer v. Midelfort, 227 Wis. 2d 123, 152-53, 595 N.W.2d 423 (1999).

Life care plans

Life care planning experts are permitted to in Wisconsin to calculate expenses for future care for the claimant. Worden ex rel. Lowe v. Injured Patients and Families Compensation Fund., No. 2009AP1752, Sept. 21, 2010, 2010 WL 3787825. It is important to remember, however, that Wisconsin is a Daubert state. See Wis. Stat. § 907.02; State v. Smith, 2016 WI App 36, 369 Wis. 2d 132, 879 N.W.2d 786.

Wrongful death standing and damages

• If there are surviving children under the age of 18, a court may set aside an amount for the protection of the children. The court decides the amount to be set aside based on age of the child, the amount involved, the capacity of the surviving spouse or domestic partner, etc. If no surviving minor children, the surviving spouse has exclusive ownership of the wrongful death. If no surviving spouse (and no surviving child under the age of 18) recovery belongs to the lineal heirs under Wis. Stat. § 852.01. Wis. Stat. § 895.04(2); Bowen v. American Family Ins. Co., 2012 WI App 29, ¶10, 340 Wis. 2d 232, 811 N.W.2d 887.
• Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death. Wis. Stat. § 895.04(4).

Punitive damages

• Punitive damages are recoverable pursuant to Wis. Stat. § 895.043.
• Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff, or $200,000, which ever is greater. Wis. Stat. § 895.043(6).
• Directly assessed punitive damages are insurable in Wisconsin, but the remedy of punitive damages is only available if the plaintiff submits evidence “showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the right of the plaintiff.” Wis. Stat § 895.043(3); see also Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, ¶22, 279 Wis. 2d 4, 694 N.W.2d 320.

Offers of judgment

• Offers of judgment are governed by Wis. Stat. § 807.01(1). A defendant may make an offer of judgment at least 20 days before trial; Plaintiffs then have 10 days to accept, otherwise it is deemed rejected and may not be used as evidence nor mentioned at trial. ’If the offer of judgment is not accepted and the plaintiff fails to recover a more favorable judgment, the plaintiff shall not recover costs but defendant shall recover costs to be computed on the demand of the complaint.
• Courts have the authority to determine whether an offer of judgment was “sufficient.” Pachowitz v. Ledoux, 2003 WI App 120, ¶43, 265 Wis. 2d 631, 666 N.W.2d 88.

Biomechanics

Biomechanical experts are permitted in Wisconsin for establishing things such as whether the forces involved in the accident are consistent with the claimed injuries. See Hach v. American Family Mut. Ins. Co., No. 2008AP1510, Dec. 17, 2009, 2009 WL 4878579. It is important to remember, however, that Wisconsin is a Daubert state. See Wis. Stat. § 907.02; State v. Smith, 2016 WI App 36, 369 Wis. 2d 132, 879 N.W.2d 786.

Must policy limits be disclosed pre-suit

There is no requirement that policy limits be disclosed pre-suit.

May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules

Wisconsin is not a no pay no play state.