WI: A Real Case Built on the Per-Defendant Rule

A real Wisconsin Supreme Court ruling shows exactly how comparing fault one defendant at a time can decide a case before trial even starts.

The rule, precisely

Under Wis. Stat. § 895.045(1), a plaintiff's negligence is measured separately against the negligence of each person found to be causally negligent — not against a single combined total of every defendant's fault added together. In a case with multiple defendants, this means running the 51% comparison once for each one.

A real case decided on exactly this point

The Wisconsin Supreme Court has directly applied this rule in a real case, concluding that summary judgment in favor of one specific defendant was proper because the plaintiff's negligence exceeded that particular defendant's negligence as a matter of law. The court didn't need to look at the plaintiff's fault relative to anyone else in the case — the comparison against that one defendant was decisive on its own.

Barred against one, free to recover from another

Because the comparison happens defendant by defendant, being barred against a less-negligent defendant doesn't affect a plaintiff's ability to recover from a different, more-negligent co-defendant in the very same lawsuit. A plaintiff could walk away from one defendant with nothing while still recovering a meaningful amount from another.

A narrow carve-out: product liability

This per-defendant negligence comparison doesn't apply to strict product liability claims. There, the plaintiff's own negligence is instead compared with the product's defectiveness, under a separate statutory framework specific to that type of claim.

Who applies this rule in practice

Wisconsin uses special verdicts, meaning the jury must answer specific questions and calculate percentages for every party found to be causally negligent — including, where relevant, running the comparison against each defendant separately as the statute requires. See our Wisconsin comparative negligence calculator to see how the outcome shifts right around the 50/51 line for a given defendant.

How fault is assigned in Wisconsin — frequently asked questions

What does Wisconsin's per-defendant comparison rule actually require?

Under Wis. Stat. section 895.045(1), the plaintiff's negligence is measured separately against the negligence of each person found to be causally negligent, rather than against a single combined total.

What happened in the real Wisconsin Supreme Court case built on this rule?

The court concluded that summary judgment in favor of one specific defendant was proper because the plaintiff's negligence exceeded that particular defendant's negligence as a matter of law.

Can a plaintiff still recover from a more-negligent defendant even if barred against a less-negligent one?

Yes. Because the comparison happens defendant by defendant, being barred against one less-negligent defendant doesn't affect a plaintiff's ability to recover from a different, more-negligent defendant in the same case.

Does this per-defendant rule apply to strict product liability claims in Wisconsin?

No. For strict product liability, the plaintiff's negligence is compared with the product's defectiveness instead, under a separate statutory framework.

Who ultimately applies Wisconsin's per-defendant comparison in a real case?

The jury, generally, using special verdicts that require it to answer specific questions about and calculate percentages for each party found to be causally negligent.

This page provides general guidance only and is not legal advice. Figures are based on Wisconsin statute and case law (Wis. Stat. § 895.045), verified per our methodology. Confirm how these considerations apply to a specific claim with a licensed Wisconsin attorney before acting.