Wisconsin Joint and Several Liability Cases

Under the joint and several liability provision in the Governor’s budget, Wisconsin will have the distinction of having one of the most expansive joint and several liability laws in the Midwest.

Joint and several liability, in its pure form, gives a successful plaintiff the right to recover the entire amount of damages from any single defendant, even if the defendant is minimally at fault-one percent at fault in some instances. In states that have reformed their joint and several liability laws, a defendant’s liability is limited to the percentage of negligence attributable to that person (often known as several liability).

Below are two examples in Wisconsin where a defendant, despite being minimally at fault, was responsible for paying close to all of the damages.

Thomas Bus Company Case

In 1991, a driver carrying his wife and family, who failed to notice rumble strips in the pavement and a stop sign, was struck in the intersection by a school bus carrying the Burlington High School soccer team. As a result of the accident, one of the passengers in the car, a ten-year-old boy, was killed when the bus struck the vehicle. Another passenger in the car was left in a coma from which doctors said she would never recover. Cost of caring for her for the duration of her life was estimated at $1 million or more.

The driver of the car was insured for $100,000, which his insurance company paid. However, beyond that the driver had few if any assets. The passenger’s attorneys sued the bus company and its insurer, United States Fidelity & Guaranty Co., even though the bus driver’s negligence was minimal. During negotiations, the plaintiff’s attorney warned the bus company that a jury verdict could well exceed the $2 million insurance coverage. As a result, the bus company and its insurer settled the case for $1.9 million.1 This is a classic example of legal extortion.

Zimmer v. City of Milwaukee

In another automobile accident, a driver with faulty brakes struck and killed a six-year-old boy at a school crossing. The driver ran a stop sign and failed to notice a crossing guard signaling him away from the children crossing the street. The plaintiff’s attorney sued the City of Milwaukee arguing that the accident could have been avoided had the crossing guard attempted to get the child out of the way of oncoming automobile rather than signaling the car to stop. The city, as the crossing guard’s employer, was found to be one percent at fault. However, because the city was the only party solvent, it had to pay 100 percent of the damages.2

1Bargren, Paul, Joint and Several Liability: Protection for Plaintiffs, 1994 Wis. L. Rev. 453, 478-48 (1994).
2American Tort Reform Association, at http://www.atra.org/show/7345.