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Chapter Six: Actions
Successfully invoked presumption of causation does not establish that negligence of the defendant was greater than that of the plaintiff. [59] What is to be determined is the contribution to the result. This involves consideration of the character of the conduct and its intensity, directness and remoteness, as well as the standard of care applicable. [60] After such consideration, it might well be found that the ordinary negligence of the plaintiff contributed more to the result than did the defendant's violation of safe-place duty. [61] It has been held that it is not prejudicial error not to call attention -- in the comparison instruction -- to the different standards of care which are involved in a safe-place case when Jury Instruction 1580 is used. [62] Nonetheless, a comparison instruction which covers all the elements to be considered, including the differing standards of care, is preferable. Combining the negligence of joint tortfeasors for the purpose of comparison with the negligence of plaintiff is not permitted under the exception stated in Reber v. Hanson, 260 Wis. 632 (1950) where duty owed by one tortfeaser was common law duty of ordinary care, and that owed by the other was safe-place duty. [62a]
56. Bruss v. Milwaukee Sporting Goods Co., 34 Wis. 2d 688, 689 (1967) where the court held it to be of no consequence in comparison of negligence that one party be guilty of safe-place negligence and other of merely common-law negligence; Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 346 (1970): "Any language of Maus [v. Bloss, 265 Wis. 627 (1954)] which might be construed as supporting the proposition that in the comparison of negligence in a safe-place case the violation of the safe-place statute must be considered as contributing more than the common-law negligence to the injury is overruled."; Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 435 (1970); Payne v. Bilco Co., 54 Wis. 2d 424, 432 (1972): "... it is proper to compare such types of negligence'even though they be founded upon duties that arise from differing sources."; Buerosse v. Dutchland Dairy Restaurants, 72 Wis. 2d 239, 244 (1976); Brons v. Bischoff, 89 Wis. 2d 80, 93 (1979). 57. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 346 (1970): "The jury should consider the standard of care ..." (345) "This language did not mean the nature or character or respects of the negligence did not bear a relationship to cause and, therefore, should not be considered in determining apportionment in terms of percentage of negligence."; See Pitrowski v. Taylor, 55 Wis. 2d 615, 628 (1972) where allocation of negligence was set aside, ipso facto, because such allocation was based on assumption that defendant was guilty of safe-place negligence whereas his negligence in fact was merely ordinary. 58. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 346 (1970): "But it does not follow that the conduct of Allied, even though in violation of the safe-place statute, necessarily contributes more to the result than the contributory negligence of Lovesee."; Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 435 (1970): "... in comparison of negligence, negligence founded upon the safe-place statute does not necessarily contribute more than common-law negligence."; Brons v. Bischoff, 89 Wis. 2d 80, 93 (1979). 59. Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 454 (1970). See also Brons v. Bischoff, 89 Wis. 2d 80, 88 (1979). 60. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 344 (1970). 61. Brons v. Bischoff, 89 Wis. 2d 80 (1979). 62. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 347 (1970); Brons v. Bischoff, 89 Wis. 2d 80, 92 (1979).
62a.
Reiter v. Dyken, 95 Wis.2d 461 (1980)
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