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into the realm of "conduct" on which a measurable standard of liability can be predicated.
Insofar as the comparative negligence statute is concerned, Wisconsin has apparently solved the problem by abolishing gross negligence.78
Strict liability. Strict liability, as such, is actually outside a consideration of contributory negligence because negligence by either party is not the basis for recovery. Without fault in the traditional sense as the criteria, defenses have been characterized either as consent or assumption of risk.79
Products liability, as distinguished from the classic Rylands v Fletcher ultrahazardous-activity liability, should be recognized as a potentially complicated problem in a comparative negligence jurisdiction, especially in the special verdict and contribution situation. No solution is offered and perhaps there is none, pending full judicial scrutiny of products liability principles and their ramifications as an applied rule of law.80
In the Wisconsin case of Dippel v Sciano, 81 Section 402A of the Restatement of Torts (Second) was molded to fit Wisconsin law, and the rule of strict liability in tort was adopted for products liability cases. Commenting that the defense of contributory negligence was nonetheless available to the seller, the court likened the basis of his liability to negligence per se. The court said that if the unreasonable dangerousness of a product was a substantial factor in producing the injury complained of, it could be compared with the causal contributory negligence of the buyer under the comparative negligence statute.
SPECIAL VERDICT INTERROGATORIES
It is essential that special verdict interrogatories containing the apportionment-comparison-reduction formula fall
78 See Bielski v Schulze (1962) 80 See D. G. Epstein, “Products 16 Wis 2d 1, 114 NW 2d 105.
Liability: Defenses Based 79 Harper & James, “The Law of Plaintiff's Conduct," 1968 Utah L Torts," $ 22.7 at 1216; Groark, Rev 267 (May). “Products Liability - Contributory 81 (1967) 37 Wis 2d 443, 155 NW Negligence In Strict Liability 2d 55. Cases,” Defense Memo, 9 For The
within a controlled mechanism that is consistent with civil jury rules. If the interrogatories are answered less than unanimously under rules not requiring unanimity, for example, dissenting jurors should be required to indicate each part of the verdict to which they dissented or concurred.
In Wisconsin, 82 it is not the kind, character or number of acts of negligence that are compared, but rather the degree of causality or contribution to the occurrence of the accident, attributable to the persons involved.83 This is a jury question, but the supreme court has refrained from devising any formula to control the jury's ultimate blending of negligence and causation. The court later hardened this policy by allowing the submission of ultimate fact questions without the specific acts of negligence breakdown previously required. 84 The Wisconsin court has, however, rejected the combination of the questions of negligence, causation and apportionment in a single question.85 No doubt the court was concerned that this might effect an almost complete return to the general verdict form, and feared that leaving negligence, causation and apportionment in one unarticulated jury finding would defeat the forced percentage and comparison that the special verdict forms were designed to produce. In such cases a jury could follow the Mississippi procedure requiring only a comparison and apportionment without any effective judicial machinery to guarantee its operation. Reduction of the damage award by the trial court would then fall into the area of remittitur and be subject to the judicial scope of that power,
82 Grana v Summerford (1961) Statutes, Section 270.27, at least 12 Wis 2d 517, 107 NW 2d 463. The 5% ths of the jury must agree on use and utility of the special ver- each question necessary to the verdict form used in Wisconsin is well dict, and these must be the same illustrated by Giemza v Allied ten jurors, otherwise the verdict American Mutual Fire Insurance would be defective. Company (1960) 10 Wis 2d 555, 83 Id. at 465. See Wisconsin 103 NW 2d 538, which involved a Jury Instructions—Civil No. 1580, three-car accident. A discussion “Comparative Negligence: Basis of the verdict as submitted and re- of Comparison," University of Wisturned by the jury is found in the consin Regents (December 1966). decision.
84 Baierl v Hinshaw (1966) 32 In the Giemza case the jury had Wis 2d 593, 146 NW 2d 433, 435, not agreed on questions 3 and 5 436; see Bell v Duesing (1957) without indicating on which parts 275 Wis 47, 80 NW 2d 821. or subdivisions of the questions 85 Baierl v Hinshaw, Note 84,
effectively denying the court a standard of negligence on which to mitigate defendant's liability.
Comparative negligence as a child of the American legal system has come of age. The demands of the public for social and economic justice in the handling of property loss and personal injury claims have resulted in an attack on the doctrine of contributory negligence.
Two basic systems of comparative negligence have emerged. The Mississippi type is based upon the abolition of plaintiff's negligence as a bar to recovery, with submission to the jury of both negligence apportionment and the damages to be recovered. This places the adjustment of pecuniary return in the jury room without any legal machinery, short of a new trial, to guarantee consistency and integrity from one verdict to the next. It allows one of greater fault to recover from one of lesser fault, a principle that is contrary to a tort system based on individual responsibility.
The second system, the Wisconsin "less-than" rule, has retained the basic American idea of fairness, that no one should recover if equally at fault, and yet has allowed the barriers of contributory negligence to be lowered so that the jury, as the proper social and legal instrument of the community, may measure and proportion individual fault and assess damages as proved by the evidence. However, the Wisconsin system retains the principle that the final damage award is a mathematical computation by the court in subtracting the plaintiff's contributory negligence in the proportion found by the jury from the damages awarded. In so doing the diversity of the individual fact situation is brought into focus with all the goals of social, economic and political liberty enjoined upon us by our legal system. Negligence as a system of tort reparations is continued from case to case as a process not circumspect to the sympathy verdict and the occasionally erratic jury award. In practice it has worked successfully for Wisconsin litigants since 1931 and represents a valuable example of legal flexibility which adopts neither the extreme of contributory negligence nor the abdication to positivist legislative solution and the inherent inequities
is the comparative negligence question, and reads as follows:
[Read question] Notice that you are not to answer this question at all unless you first find (it is found) that both (name)
and (name) negligent and further find (it is further found) that the negligence of each was a cause of the collision. If, by reason of your (the) answers to previous questions, you are required to answer this question, you will answer each subdivision with such percentage, or part of 100%, which is by the greater weight of the credible evidence to a reasonable certainty proved to be attributable to the person named in such subdivision. 1580 COMPARATIVE NEGLIGENCE: BASIS OF
you will determine how much or to what extent each party is to blame for the (collision) (accident) (injury) in question. You will weigh the respective contributions of these parties to the (collision) (accident) (injury) and, considering the conduct of the parties named in the question, considered as a whole, determine whether one made a larger contribution than the other, and if so to what extent it exceeds that of the other. In making your apportionment of negligence, you will fix the percentage of negligence attributable to each participant in proportion to how much the fault of each contributed to cause the (collision) (accident) (injury), and by your answer to this question record your determination.
[Where the jury, under a conventional special verdict, is required to make findings as to specific acts of negligence, e.g., speed, control, lookout, directional signals, wrong side driving, etc., add this paragraph:)
You will keep in mind that the percentage of negligence attributable to a party is not to be measured solely by the number of respects in which such party is found to have been at fault. 1582 COMPARATIVE NEGLIGENCE: ADULT AND
CHILD In answering the comparative negligence question, if you are to answer it, you should take into consideration that
* These instructions were prepared for the Wisconsin Board of Circuit Judges by the Civil Jury Instruction Committee of that Board and are reproduced by the express written permission of the University of Wisconsin, Extension Law Department, Madison, Wisconsin. Copyright © 1960, Regents, University of Wisconsin.
was an adult and
was a child, and consider and weigh the credible evidence bearing on the inquiries presented, in the light of the difference in the rules which you were previously instructed to apply in determining whether the conduct of the parties was negligent.
1585 COMPARATIVE NEGLIGENCE: NEGLIGENCE OF
PLAINTIFF AND TWO DEFENDANTS COM
PARED: WITH CROSS COMPLAINT Question
is the comparative negligence question and read as follows:
[Read question] Notice that you are not to answer this question unless you first find (it is found) that more than one person named in the question were negligent and further find (it is further found) that negligence of more than one person was a cause of the collision. If, by reason to your (the) answers to previous questions, you are required to answer this question, you will answer subdivision
relating to the person 80 found to have been causally negligent, with such percentage, or part of 100%, which you find to be attributable to him.
1590 COMPARATIVE NEGLIGENCE: NEGLIGENCE OF
PLAINTIFF AND TWO DEFENDANTS COM
PARED: NO CROSS COMPLAINT Question
is the comparative negligence question and reads as follows:
[Read question] Notice that you are not to answer this question at all unless you first find (it is found) that the plaintiff and one or both defendants were negligent and further find (it is further found) that the negligence of plaintiff and one or both of the defendants was a cause of collision. If, by reason of your (the) answers to previous questions, you are required to answer this question, you will answer the subdivision relating to the person so found to have been causalļy negligent, with such percentage, or part of 100%, which you find to be attributable to him.
1595 COMPARATIVE NEGLIGENCE: WHERE NEGLI
GENCE OR CAUSE QUESTION HAS BEEN AN
SWERED BY COURT In answering the question of the special verdict relating to a comparison of negligence between the plaintiff and the defendant, you are not to give any greater or lesser importance or weight to the finding of the court that one (or more) of the parties to this collision was (or were) negligent as a matter of law (or that such negligence was, as a matter of law, a cause of the collision) than you would give to a similar finding