Stealthy or Shifty Tort Change

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. 

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The Assault Upon the Citadel

I am no doubt dating myself, and that has been happening a lot lately, but Bill Prosser’s 1960 article in the Yale Law Journal probably has had the greatest influence on the way that I write and teach about the law [William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960)].  In that regard, it probably has had even more of an effect on me than any of my own articles.

In the Yale article Prosser traced the various exceptions that developed since Lord Abinger’s 1842 proclamation of the rule that tort liability would not aid one with no privity to a contract who was injured as a result of its breach.  His second article on the subject, some six years later is his final chapter in that story [William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).

What initially attracted me to the Yale article was Prosser’s status as an icon.  I used his casebook and hornbook as a law student.  He was “Mr. Torts.”  But as I matured I found it offered so much more.  It clearly demonstrates that while some courts treat ancient rules as if they were holy writs, stare decisis is not a commitment to intellectual stagnation.  I believe that nowhere in the law is this truer than in Torts.  It also made clear that legal scholarship does not have to be a stranger to humor.  The two can coexist. 

Thus, in my own writing I always attempt to be a critic, albeit one who at times can point to humorous situations in the law.  In my teaching I attempt to call the students’ attention to how old law is not necessarily good law and always to be alert to areas where improvement is needed and to develop the ability to clearly articulate why that is so.

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My Favorite Wisconsin Cases

Where does one start?!  I attempt to bring Wisconsin law into my classes for several reasons.  The “Diploma Privilege” permits our students to practice in this state without taking the Bar Exam.  Wisconsin courts have been pacesetters as to matters considered in the subject areas in which I teach.  I believe students should learn, as early as their first year with us, that is not improper for one to find fault with judicial and legislative reasoning, at times even in a humorous fashion, as long as due respect is shown.

The first of my favorites is considered in my Torts class.  It is Quesenberry v. Milwaukee County, 106 Wis.2d 685, 317 N.W.2d 468 (1982).  It arises in the discussion of the duties of owners and occupiers of land to those who come upon the property.  It is referenced to show how, at times, state legislatures see fit to modify common law rules.  The case dealt with a provision of the Wisconsin Statutes in effect at the time of an accident (then § 29.68) that barred recovery for injuries received while engaging in “recreational” activities on lands of another. 

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