Wisconsin

 

 

Statute of Limitations (WISCONSIN)

 

Personal Injury - 3 yrs. [W.S.A. 893.54]

Wrongful Death - 3 yrs. [W.S.A. 893.54]

Property Damage - 6 yrs. [W.S.A. 893.52]

Contracts (Oral and Written) - 6 yrs. [W.S.A. 893.43]

Contracts for of Sale (goods) and Breach of Warranty - 6 yrs. (from tender of delivery) [W.S.A. 402.725]

Application of Foreign Statutes of Limitation - If an action is brought in WI on a foreign cause of action and the foreign applicable period of limitation has expired, no action may be maintained in WI [W.S.A. 893.07]

 

“Discovery rule” for determining accrual of a limitations period is adopted for all tort actions (other than those already governed by a legislatively created discovery rule) and such tort claims shall accrue on the date the injury is discovered or with reasonable diligence should have been discovered, whichever occurs first [Hansen v. A.H. Robins, Inc., 335 N.W.2d 578 (Wis. 1983)].

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Statute of Repose (Products) (WISCONSIN)

 

15 yrs. [W.S.A. 895.047].

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Admissibility of Expert Testimony (WISCONSIN)

 

Wis. Stat. § 907.02(1) has adopted the Daubert standard; it applies to proceedings commenced on or after February 1, 2011 [State v. Alger (In re Alger), 360 Wis. 2d 193 (Wis. 2015)].

 

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Causes of Action (WISCONSIN)

 

Strict Liability - Statutory Definition: in an action for damages caused by a product based on a claim of strict liability, a manufacturer is liable if Plaintiff establishes by a preponderance of the evidence that: (1) the product is defective because it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings; (2) the defective condition rendered the product unreasonably dangerous to persons or property; (3) the the defective condition existed at the time the product left the control of the manufacturer; (4) the product reached the user without substantial change in the condition in which it was sold; and (5) the defective condition was a cause of the claimant’s damages [Wis. Stat. § 895.047].

 

Negligence – Where a plaintiff is unable to prove the elements necessary to recovery under a theory of strict liability, the manufacturer or seller may still be liable under a negligence theory where the plaintiff is able to prove specific negligent conduct.  The plaintiff still must prove that the product causing the injury was dangerous and defective [Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 230 N.W.2d 794 (Wis. 1975)].

 

Breach of Warranty – A breach of warranty theory should not be employed where the recovery is one for tort.  Where a strict liability action is alleged, the plaintiff need not prove specific acts of negligence by the defendant, and the defenses of notice of breach of warranty, disclaimer of warranty, and privity of contract are not available [Austin v. Ford Motor Co., 273 N.W.2d 233 (Wis. 1979)].

 

 

 

 

 

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Definition of “Defect” (WISCONSIN)

 

A product contains a manufacturing defect if the product departs from its intended design even though all possible care was exercised in the manufacture of the product. A product is defective in design if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe. A product is defective because of inadequate instructions or warnings only if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe [Wis. Stat. § 895.047].

 

 

 

 

 

 

 

 

Liability of Sellers (WISCONSIN)

 

Seller or distributor is not liable based on a claim of strict liability unless the manufacturer would be liable under the statute and any of the following applies: (1) Plaintiff proves by a preponderance of the evidence that the seller or distributor has contractually assumed one of the manufacturer’s duties to manufacture, design, or provide warnings or instructions with respect to the product; (2) Plaintiff proves by a preponderance of the evidence that neither the manufacturer nor its insurer is subject to service of process within this state; or (3) a court determines that Plaintiff would be unable to enforce a judgment against the manufacturer or its insurer [Wis. Stat. § 895.047].

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Defenses (WISCONSIN)      

 

Comparative Negligence – Wisconsin follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [W.S.A. 895.045].  Applies to strict liability cases [Wis. Stat. § 895.045].

 

Assumption of Risk – While Wisconsin has abolished assumption of the risk as an absolute defense, a plaintiff’s assumption of the risk may be considered as part of the comparative negligence analysis [Kubichek v. Kotecki, 796 N.W.2d 858 (Wis. Ct. App. 2011)]

 

Product Misuse – The damages for which a manufacturer, seller, or distributor would otherwise be liable must be reduced by the percentage of causal responsibility for Plaintiff’s harm attributable to his misuse of the product [Wis. Stat. § 895.047].

 

Product Alteration/Modification – A user’s substantial alteration of a product may serve to reduce or negate a manufacturer’s liability [Klonowski v. International Armament Corp., 17 F.3d 992 (7th Cir. Wis. 1994)].  The damages for which a manufacturer, seller, or distributor would otherwise be liable must be reduced by the percentage of causal responsibility for Plaintiff’s harm attributable to his alteration or modification of the product [Wis. Stat. § 895.047].

 

 

 

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (WISCONSIN)

 

Purchaser of a product cannot recover from the manufacturer on a tort theory for damages that are solely economic [1325 North Van Buren, LLC v. T-3 Group, Ltd., 716 N.W.2d 822 (Wis. 2006)]. 

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (WISCONSIN)

 

Evidence of a malfunction is one type of circumstantial evidence that can be used in establishing a defective condition [Sumnicht v. Toyota Motor Sales, Inc., 360 N.W.2d 2 (Wis. 1984)].

 

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Design Defects (WISCONSIN)                                                                                               

 

A product is defective in design if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe [Wis. Stat. § 895.047].

 

Evidence of the custom in the industry (what the industry was doing) and the state of the art (what the industry feasibly could have done) at the time of the design or manufacture is relevant to the jury's determination of negligence [Adamany v. Cub Cadet Corp., 2005 U.S. Dist. LEXIS 9612 (W.D. Wis. 2005)].

 

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Failure to Warn (WISCONSIN)

 

A product is defective because of inadequate instructions or warnings only if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe [Wis. Stat. § 895.047].

 

A plaintiff who has established both a duty and a failure to warn must also establish causation by showing that, if properly warned, he would have altered behavior and avoided injury. Evidence must support a reasonable inference that the existence of an adequate warning may have prevented the injury. Even in the event that a warning is inadequate, proximate cause is not presumed [Kurer v. Parke, Davis & Co., 679 N.W.2d 867 (Wis. Ct. App. 2004)].

 

Wisconsin has the sophisticated user doctrine – No duty to warn members of a trade or profession about dangers generally known to the trade or profession [Haase v. Badger Mining Corp., 669 N.W.2d 737 (Wis. Ct. App. 2003)].

 

The strict liability duty to warn is hard to distinguish in practice from the duty to warn imposed by a negligence standard. This is because the defendant, to be held strictly liable, must have been able to foresee that the product would be unreasonably dangerous unless there is a warning. The duty to warn in a strict liability case arises if the seller has (or should have) knowledge of a dangerous use [Flaminio v. Honda Motor Co., 733 F.2d 463 (7th Cir. Wis. 1984)].

 

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Independent Cause of Action for Evidence Spoliation (WISCONSIN)

 

No independent tort actions for the intentional and negligent spoliation of evidence have been recognized [Estate of Neumann ex rel. Rodli v. Neumann, 626 N.W.2d 821 (Wis. App. 2001)].

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