Originally published: October 2025
Asbestos cases in Wisconsin are governed by complex legal rules, which can significantly impact the amount of compensation victims receive.
Wisconsin’s comparative negligence law, as outlined in § 895.045, determines how fault is apportioned among all parties involved.
Joint and several liability rules, meanwhile, determine which defendants have to pay what share of the damages.
In toxic exposure cases, where multiple companies may be responsible, these laws can be somewhat complicated—but they also open doors to creative legal strategies.
Wisconsin uses a modified comparative negligence system. Plaintiffs can only recover damages if they’re 50% or less at fault, while defendants under 51% at fault pay only according to their percentage.
This rule changed the game for asbestos cases. Most of these cases involve a lengthy list of defendants, each with varying levels of responsibility.
In 1995, the legislature revised the law, moving away from the old joint and several liability system. Before that, plaintiffs could collect the whole amount from any one defendant, no matter their share of the blame.
It’s crucial to understand these legal principles if you’re considering an asbestos claim in Wisconsin. The comparative negligence statute touches everything from medical bills to loss of consortium, so getting the fault percentages right really matters.
Companies often use these rules to dodge bigger payouts, which means victims need a solid strategy to protect their rights. It’s not always simple, but that’s the reality here.
Wisconsin’s comparative negligence statute states that a plaintiff’s own negligence will not completely bar recovery as long as their fault doesn’t outweigh that of the defendant.
The law requires courts to compare each plaintiff’s negligence against each defendant on an individual basis, rather than lumping them together.
Wisconsin Statutes section 895.045 spells it out: “contributory negligence does not bar recovery in an action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to person or property.”
Wisconsin courts applied § 895.045 in asbestos and toxic tort contexts, emphasizing separate plaintiff-versus-defendant comparisons. In Fuchsgruber v. Custom Accessories, Inc., 244 Wis. 2d 758 (2001), the Supreme Court reinforced the modified system: recovery is barred only if the plaintiff’s negligence exceeds each defendant’s individually.
This changed the old Wisconsin rule. Previously, if the injured person was even slightly negligent, they received nothing.
The statute sets a line for recovery. Wisconsin uses a modified comparative negligence system—if the plaintiff’s negligence isn’t greater than the defendant’s, they can recover damages.
Key Requirements:
The plaintiff’s fault percentage reduces any damages. So, if a plaintiff is 30% at fault, they lose 30% of the payout. It’s pretty straightforward math, on paper.
Wisconsin courts compare the plaintiff’s negligence percentage with each defendant one at a time. This approach is particularly important in cases involving multiple defendants.
The statute gives guidance for situations with different fault levels. If a defendant has less than 51% negligence, they’re only on the hook for their share.
Comparison Examples:
| Plaintiff Fault | Defendant A Fault | Defendant B Fault | Recovery from A | Recovery from B |
| 30% | 40% | 30% | Yes (reduced by 30%) | Yes (reduced by 30%) |
| 45% | 35% | 20% | No (45% > 35%) | No (45% > 20%) |
| 40% | 60% | 25% | Yes (reduced by 40%) | No (40% > 25%) |
This method means plaintiffs might collect from some defendants but not others. The court doesn’t just add up all the defendants’ fault—it looks at each one individually.
Therefore, liability can appear quite differently for each defendant in the same lawsuit. It’s not always what people expect.
Facing mesothelioma in Wisconsin? Third Coast Lawyers can evaluate your personal injury claim and map fault percentages before deadlines close. Protect your recovery window—contact us to begin today.
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Wisconsin’s joint and several liability rules come into play depending on fault percentages and a few exceptions.
There are two main ways a defendant might end up fully responsible for all damages, even if their own fault isn’t 100%.
Joint and several liability only applies when a defendant is 51% or more at fault. This creates a fairly straightforward line in the sand for who might be responsible for paying everything.
Defendants at 51% or More Fault:
Defendants Below 51% Fault:
In asbestos cases, this becomes a big deal. If a company is found to be 60% at fault, it is on the hook for everything. Another at 30% only pays that 30%—unless something else changes the equation.
Wisconsin Statute 895.045 significantly altered the old rules when lawmakers revised it in 1995.
The 1995 Tort Reform Act fundamentally shifted asbestos litigation. Before, plaintiffs could collect the entire judgment from one solvent defendant under “pure joint liability.”
Following the amendment, the 51% threshold became the dividing line, resulting in significant strategic shifts in multi-defendant toxic exposure cases.
The “concerted action” exception means joint and several liability can apply even if individual fault percentages are low. If defendants worked together in a common plan, they can all be fully responsible.
Elements of Concerted Action:
Wisconsin courts have rarely applied concerted action in asbestos cases, but Ollerman v. O’Rourke Co., Inc., 94 Wis. 2d 17 (1980), provides the doctrinal foundation.
Evidence of industry-wide concealment of asbestos risks—through trade associations or coordinated warnings—could satisfy this test.
This comes up a lot in asbestos litigation. If companies conceal health risks together or coordinate their marketing, the law can hold them equally responsible.
Even a defendant with just 20% fault might end up paying everything if the court finds concerted action. That’s a real risk for companies that worked together.
Wisconsin’s comparative negligence and joint liability rules present significant challenges in asbestos cases, particularly since multiple companies exposed individuals over a prolonged period.
The state’s approach to joint and several liability in toxic torts directly affects how damages are divided when it is not possible to apportion the harm between defendants.
Asbestos lawsuits almost always name multiple defendants from various industries and time periods. Workers might’ve been exposed at several job sites, sometimes for decades.
In a typical mesothelioma case, you might see:
The court determines each defendant’s fault percentage based on factors such as the duration of exposure, the type of asbestos involved, and whether safety warnings were issued. It’s not always a science—sometimes it’s a matter of judgment.
Problems arise when the big players have no money left, leaving the smaller ones with a larger bill.
Joint and several liability can leave a company with a small share paying significantly more if others are unable to pay.
Proving causation is the toughest part in asbestos cases. Mesothelioma typically takes decades to develop, often resulting from a combination of exposures. Courts can’t really say which defendant caused the cancer.
Wisconsin’s statute gets messy when:
Since the harm is “indivisible,” the court treats it as one injury. That can trigger joint liability, especially when it’s impossible to separate out who did what.
Experts usually talk about cumulative dose—how much asbestos someone breathed in over time—instead of pinpointing a single source. Therefore, the fault percentages may seem somewhat arbitrary.
Wisconsin follows the indivisible injury principle: when harm cannot be rationally apportioned, defendants may be held jointly liable despite percentage allocations.
Thomas ex rel. Gramling v. Mallett, 285 Wis. 2d 236 (2005), illustrates this, where lead paint exposure was treated cumulatively—logic that courts also apply in asbestos dose cases.
Many asbestos manufacturers have gone bankrupt or shut down, so there aren’t always enough solvent defendants to pay. That’s when joint liability really matters—plaintiffs might have to go after whoever’s left.
Common insolvency scenarios:
Defendants still standing can end up paying a lot more than their share. If you’re assigned 15% fault, you might pay half the damages if the others can’t cover their part.
That risk prompts people to settle, and it certainly influences how plaintiffs’ lawyers evaluate cases. They must assess each defendant’s financial situation before determining how to proceed.
Strategic practice point: Wisconsin plaintiffs’ lawyers often front-load claims against defendants most likely to survive trial or settlement—because if the largest historical polluters are bankrupt, only those above the 51% line or proven in concerted action can cover the gap.
Wisconsin Statute § 895.045 addresses comparative fault differently depending on the type of claim. Strict liability product defect cases require separate fault determinations compared to regular negligence cases.
Wisconsin law handles strict liability product defect claims with a modified comparative fault system.
Fact finders decide what percentage of total causal responsibility comes from the injured person’s own contributory negligence.
In asbestos cases, courts look at the plaintiff’s conduct separately from the product’s role. If the injured party smoked, skipped protective equipment, or broke safety rules, their recovery might shrink.
Key distinctions for strict liability claims:
Asbestos component manufacturers end up with several liabilities instead of a joint liability. Each defendant pays only for their own percentage of fault.
Wisconsin Stat. § 895.047 (product liability statute) dovetails with § 895.045. In asbestos litigation, this means that juries weigh defect claims alongside negligence claims, but fault allocation still follows comparative negligence principles.
Courts often remind juries that strict liability doesn’t erase plaintiff fault—it simply shifts the burden of proving a safe design.
Picture an asbestos exposure case involving multiple parties. The jury assigns fault percentages based on how much each party contributed to the plaintiff’s injuries.
Sample fault allocation:
| Party | Fault Percentage | Liability Amount |
| Plaintiff (smoking) | 20% | Recovery reduced by 20% |
| Manufacturer A | 45% | Pays 45% of damages |
| Manufacturer B | 25% | Pays 25% of damages |
| Employer | 10% | Pays 10% of damages |
The plaintiff gets 80% of the total damages. Each manufacturer pays only their assigned share, not the full amount.
If Manufacturer B only had 15% fault, they’re only on the hook for that percentage. Wisconsin’s comparative negligence statute revised the old rules, ensuring that defendants with small fault percentages are not unfairly penalized with outsized damages.
Multiple companies may share blame. Third Coast Lawyers builds strategic toxic injury cases to pursue joint liability when available. Maximize your path to compensation—schedule a consultation now.
If you’re ready to get started, call us now!
Wisconsin’s comparative negligence statute has an exception. If defendants act together under a common plan, they’re jointly and severally liable, regardless of their individual fault percentages.
Courts use specific tests to determine whether companies coordinated their asbestos-related conduct or acted independently.
Wisconsin courts consider two primary factors for concerted action liability. First, they look for an agreement or understanding between defendants to do something harmful.
Second, they want proof of mutual assistance or encouragement in those wrongful acts. The agreement doesn’t have to be formal or written down.
Key factors courts consider:
In asbestos cases, companies might work together in a common scheme to hide health information. Evidence could include shared research, joint public statements, or collaborative lobbying efforts.
The plaintiff has to prove both the agreement and the mutual conduct. Internal emails or meeting notes can significantly strengthen these claims.
Just because several asbestos companies act similarly doesn’t mean they’ve acted in concert. Wisconsin law draws a line between parallel but independent behavior and true coordination.
Parallel acts that usually don’t meet the standard:
Wisconsin expects more than just parallelism. Plaintiffs must demonstrate actual communication, planning, or assistance between the defendants.
A concert of action requires collaborative intent, not just similar outcomes. Therefore, companies that make the same poor safety choices independently often avoid joint liability.
The burden’s on plaintiffs to show coordination. Industry-wide issues rarely meet Wisconsin’s concerted action standard without evidence of actual teamwork or shared plans.
A Wisconsin asbestos case can show how fault allocation works under comparative negligence. The court assigns percentages to each party based on responsibility.
Case Facts: A worker gets exposed to asbestos at several job sites over 30 years. The total damages: $2,000,000.
| Defendant | Fault % | Liability Amount | Details |
| Asbestos Manufacturer A | 35% | $700,000 | Failed to warn of dangers |
| Construction Company B | 25% | $500,000 | Poor safety protocols |
| Employer C | 20% | $400,000 | Inadequate protection |
| Equipment Supplier D | 15% | $300,000 | Defective safety gear |
| Plaintiff (Worker) | 5% | $100,000 reduction | Ignored some safety rules |
Damages Distribution: The plaintiff gets $1,900,000, not the full $2,000,000. His own 5% fault reduces his recovery by $100,000.
Each defendant pays their own share. If Company B goes bankrupt, Manufacturer A is not required to pay B’s portion.
Joint and Several Liability Limits: Under Wisconsin law, defendants pay only their percentage of fault.
They don’t have to cover the whole judgment for everyone else. This rule ensures fairness—no one pays more than their share.
Wisconsin asbestos claimants encounter unique challenges under the state’s modified comparative negligence and joint liability rules.
Knowing how fault gets calculated, what evidence you need, and which arguments work can mean the difference between getting paid and walking away empty-handed.
Many plaintiffs are unaware of how Wisconsin’s 51% fault rule can significantly reduce or even eliminate their asbestos claim.
Under the modified comparative negligence system, if you’re found more than 50% at fault, you get nothing. That’s a rough surprise.
Common fault allegations include:
Insurance adjusters thoroughly examine smoking history, workplace habits, and the use of protective gear. They put together timelines to show when plaintiffs knew or should’ve known about the dangers of asbestos.
Defendants bring in experts on industry standards and available safety gear from the past. They argue that the plaintiffs ignored obvious risks.
Early on, it’s smart to take a hard look at your own possible fault. If you’ve got a lot of comparative negligence, settling before trial might be the best move.
Defendants frequently introduce comparative negligence evidence not just on respirator use, but also lifestyle risks like smoking.
Wisconsin courts (e.g., Fuchsgruber) allow these arguments, which means a well-prepared plaintiff’s team must rebut lifestyle blame with expert medical testimony on cumulative asbestos dose.
Weak documentation of exposure history hurts both liability and comparative negligence arguments. Wisconsin courts require specific evidence linking each defendant’s product to the plaintiff’s harm.
Critical evidence gaps include:
Insurance adjusters scrutinize exposure evidence to minimize their client’s share of fault. They challenge vague memories and want exact product info.
Winning claims need thorough discovery, like:
Preserving evidence early is crucial—witnesses move on, documents disappear, and memories fade.
Plaintiffs sometimes overlook concerted action arguments that could result in full joint liability, even with Wisconsin’s joint liability limits.
Under the state’s joint liability rules, defendants under 51% fault pay only their share.
However, joint liability still applies if defendants acted together or had a common plan. That can make a big difference in what you recover.
Concerted action elements include:
Building a strong concerted action case means digging deep into industry communications and coordinated behavior. Plaintiffs must demonstrate that defendants collaborated to create or conceal asbestos risks.
This approach works best against big manufacturers active in trade groups during the key concealment years—from the 1930s through the 1970s.
Third Coast Lawyers gets how Wisconsin’s modified comparative negligence rule shapes asbestos cases.
Their Wisconsin personal injury attorney team will tell you straight: if you’re 51% or more at fault, you won’t recover damages.
Their attorneys handle cases involving multiple defendants who share blame. They actually know how Wisconsin Statute § 895.045 changes the rules for joint and several liability in asbestos claims.
Third Coast Lawyers spot common defense moves in toxic exposure cases. They expect arguments that victims “chose” their risk just by working or living where they did.
Key Advantages:
The legal team tries to keep client fault percentages low. They’ll dig up evidence showing asbestos exposure happened without the client’s knowledge or choice.
Comprehensive Legal Support
| Service Area | Expertise |
| Fault Analysis | Figuring out liability percentages |
| Evidence Collection | Building strong causation arguments |
| Defense Strategy | Pushing back on comparative negligence claims |
The firm’s attorneys are familiar with Wisconsin’s unique legal landscape. They pay attention to how § 895.045 impacts compensation in asbestos cases and work hard to help clients recover as much as possible under those rules.
Don’t risk a >50% finding ending your case. Third Coast Lawyers analyzes wrongful death and injury claims under § 895.045 to preserve full recovery routes—contact us for a case review.
What does Wisconsin’s comparative negligence rule mean for asbestos cases?
You can recover damages if you’re 50% or less at fault; your percentage reduces your award. If you’re over 50%, recovery is barred.
When does joint and several liability apply in Wisconsin?
A defendant is jointly and severally liable when they’re 51% or more at fault, allowing you to collect the full judgment from that defendant.
Can defendants under 51% fault still be jointly liable?
Yes, under the concerted action/common scheme exception. If defendants acted under a common plan that caused harm, each can be jointly liable, despite having lower individual percentages.
How is fault allocated among multiple asbestos defendants?
The jury assigns percentages to each defendant and to the plaintiff. Each pays its share unless one is ≥51% (joint/several) or concerted action is proven.
How does my own conduct affect recovery?
Any proven plaintiff negligence (e.g., failure to use available protective gear) reduces the recovery proportionally. If your fault exceeds 50%, you cannot recover.
Does § 895.045 apply to product liability claims, too?
Yes. Fault allocation still follows § 895.045, while product-defect standards are governed by § 895.047. The jury weighs the defect and negligence alongside any fault on the part of the plaintiff.
What if a major defendant is insolvent or settles early?
You may still collect fully from a defendant ≥51% at fault. Otherwise, you’re limited to each defendant’s several shares unless concerted action is established.
How can I strengthen my apportionment case?
Document exposures, products, worksites, and witnesses early. Tie each defendant to specific asbestos sources and practices to support higher fault percentages where warranted.
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