Much media has been given to the so-called “stimulus package” recently passed and signed into law without members of Congress or the President knowing fully what was contained in the over 1500 pages. Evidently, no one read the whole bill before taking the decisive action.
A similar approach seems to be occurring here in Wisconsin. Buried in the governor’s budget bill (A 75 2009-2010 Legislature), at pages 1588 and 1605, are significant modifications of state tort law that have as much to do with the state budget as chewing gum has to do with nuclear fusion.
Section 3223 of the bill contains a provision requiring the court to explain to a jury “the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.” Translation: “If you find the plaintiff more negligent than that rich old defendant, the plaintiff and his or her lawyer won’t recover a dime!” Aren’t juries supposed to be finders of fact and not charity institutions?
Section 3271 of the bill changes the Wisconsin comparative negligence rule in two significant respects.
First, contrary to what has been the rule since 1931, the plaintiff’s negligence would no longer be compared separately to that of each defendant, with the plaintiff barred from recovery against one whose negligence percentage is smaller. Under the proposal the plaintiff would be barred only if his or her negligence was found greater than the combined negligence of all the defendants. An illustration may help. Now if the plaintiff is found 40 percent at fault and the three defendants are found 10, 20, and 30 percent, respectively, the plaintiff will recover nothing. With the proposed change, the same numbers would result in the plaintiff and his or her attorney recovering 60 percent of his or her damages, with 1/6 of that amount paid by the 10 percent defendant, 2/6 by the 20 percent defendant, and the balance by the 30 percent defendant.
A final provision in section 3271 would have any defendant with a percentage of fault equal to or greater than the plaintiff’s jointly and severally liable to the plaintiff. At present only defendants found 51 percent or more at fault incur joint and several liability. Under the proposal, for example, if a plaintiff was fond to be 20 percent at fault and four defendants were each found to be a similar percentage, the plaintiff could recover 80 percent of his or her total damages from any one of the four. That target would have to recoup shares from the others, bearing the whole burden should any be insolvent.
These proposals are obviously a big, wet, sloppy kiss from the governor and involved legislators to the plaintiffs’ bar in thanks for campaign contributions and other favors. However, even The Milwaukee Journal Sentinel suggested that these measures, regardless of their merit, should be considered separately in the legislative process outside of the Joint Finance Committee (Editorial, “Afraid of Scrutiny, at A10 (April 10, 2009)). Enough said!