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To help the victim: Wisconsin modernizes its injury law

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

While the law of personal injuries may seem a tedious subject to non-lawyers, in fact it has been subject of many exciting political and ideological struggles during Wisconsin's history. At its core lies the fundamental question of who should pay for accidents: the person most at fault, the person most able to pay, or some combination of the two? Changing times have brought changing answers from Wisconsin lawmakers.

When Wisconsin became a state, the prevailing American rule was "contributory negligence." Under this rule, an injury victim could not recover anything if he was at all responsible for the accident, even if he was only one percent responsible.

Wisconsin lawmakers soon recognized the unfairness of this rule. In 1858 the Supreme Court rejected the rule, but two years later one justice changed his mind and the Court returned to the old rule -- not because it agreed with the old rule, but because it did not want to go against the rest of the United States.

In the 1880s and 1890s, business and labor did battle over the rule in the Legislature, which several times modified the rule to make recovery easier for injured workers and then changed it back. Juries bent over backwards to avoid finding that injury victims were negligent, and many judges let the jury's verdict stand even in cases where the judges themselves felt the victims had been partly at fault.

The first big breakthrough for injury victims came in 1907. That year, the Legislature abolished contributory negligence for railroad workers and substituted a system of "comparative negligence." This meant that even if the worker was partly at fault for the accident, if the employer was more than 50 percent responsible, it had to compensate the worker for his injuries. In 1931 the Legislature extended the new system to all injury victims, making Wisconsin one of the first states to do so. The change sounds obvious enough today, but at the time it represented a revolution in people's thinking about the reasons for accidents and who should pay for them.

Another problem the courts wrestled with was called "proximate cause." The effects of an accident can be small, or they can be huge. For example, fires caused by steam engine sparks were common in the late 1800s. If the only damage was the destruction of a nearby hayfield, it was easy enough to justify making the railroad pay, but what if a wind sprang up and spread the fire to a nearby building or block of buildings, causing millions of dollars of damage? Some states said those damages were not "proximate" and refused to make the railroad pay. Wisconsin agreed at first, but in the famous case of Kellogg v. Chicago & Northwestern Railway (1870), Chief Justice Luther Dixon, of Portage, held that people were liable for all damages caused by a "direct and continuous" chain of events.

Throughout the 19th century and the early 20th century, American courts consistently claimed they were not trying to design the rules to help any particular social group. Rather, they just wanted to create consistent rules so people could know what the consequences of their actions would be. But gradually some states, led by California, began to admit that liability for injuries was as much a political question as a legal question.

Beginning in the early 1950s, Wisconsin followed suit. The Supreme Court continued to follow many of the old rules, but it made clear that because courts -- not the Legislature -- made those rules originally, courts had the power to change those rules when new conditions clearly made change necessary. The most dramatic change the court made was in 1967, when it adopted a rule known as "strict liability." That rule made manufacturers of inherently dangerous products, such as hazardous chemicals and machinery, responsible for injuries even where they had made the products as carefully as possible.

The Legislature has continued to have a say over accident law as well. For example, in recent years it has limited the liability of people who are only a little bit at fault in accidents and it has tried to limit the amount of money which victims of medical malpractice can recover. But overall, the great change of the 20th century has been that the law now judges accidents in terms of who can best afford to pay as well as who is at fault.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.

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