Wis JI-Civil 1723

This is a [crashworthiness] [second collision] [enhanced injury] case. (Plaintiff) does

not claim (enhanced injury defendant) caused the [collision] [accident] to occur.

(Plaintiff) does claim that [enhanced injury defendant was negligent] [there existed a

defect in (the product) which was unreasonably dangerous to a prospective user].

(Plaintiff) further claims that such [negligence] [defective product] was a substantial

factor in producing enhanced injuries to (himself) (herself).

Questions _____ and _____ refer to those alleged enhanced injuries. It applies to those

injuries that (plaintiff) received over and above any injuries (he) (she) would have received

as a result of the [collision] [accident] if the [defendant was not negligent] [product was not

unreasonably dangerous and defective].

First, you must determine whether the [defendant was negligent] [defendant's product

was unreasonably dangerous and defective] as inquired about in question _____.

If you find [defendant was negligent] [the product was defective], then you must

determine in question _____ whether that [negligence] [defective product] was a cause of

enhanced injuries to (plaintiff); i.e., whether that [negligence] [defective product] was a

substantial factor in producing injuries over and above what probably would have been

sustained in the [collision] [accident].

[Burden of Proof, Wis JI-Civil 200]

If you have found that at least one party's negligence was a cause of injuries to

(plaintiff) in the [collision] [accident] and have further found that (enhancing injury

defendant)'s [negligence] [product] was a cause of enhanced injuries to (plaintiff), then you

will answer question _____ and determine how much and to what extent (plaintiff)'s total

injuries and damages were enhanced or increased by the negligence of (enhancing injury

defendant). You will affix a percentage, or part of 100%, which you are satisfied should be

attributable to (enhancing injury defendant).

Once (plaintiff) has established that (he) (she) sustained enhanced injuries as a result

of (enhancing injury defendant)'s [negligence] [defective product], then the defendants have

the burden of proof in apportioning how much of those injuries should be allocated between

the [collision] [accident] and the alleged enhancement occurrence.

SPECIAL VERDICT

1. [Regular negligence question on defendant who allegedly caused the initial "accident"

or "incident" and/or the following:]

Was the (product), when it left the possession of (defendant), in such defective

condition as to be unreasonably dangerous to a prospective user?

Answer:_________

Yes or No

2. If you answer question _____ "yes," then answer this question:

Was such (negligence) (defective condition) a cause of (the accident) (injury to {the

plaintiff})?

Answer:_________

Yes or No

3. Was (plaintiff) negligent with respect to caring for (his) (her) own safety?

Answer:_________

Yes or No

4. If you answer question _____ "yes," then answer this question:

Was such negligence a cause of (the accident) (injury) to (plaintiff)?

Answer:_________

Yes or No

5. [Regular comparison question on who was at fault in causing initial accident or

incident.]

6. What sum of money will fairly and reasonably compensate (plaintiff) for all total

damages sustained by (him) (her) as a natural and probable consequence of the

incident on (date) with respect to:

a. Pain, suffering and disability to date? $__________

b. Other subparts as required by the evidence, etc. $__________

7. [Regular negligence question as to defendant who allegedly caused enhanced injuries

to the plaintiff and/or:]

Was the (product), when it left the possession of (enhancing tortfeasor), in such a

defective condition so as to be unreasonably dangerous to a prospective user?

Answer:_________

Yes or No

8. If you answer question _____ "yes," then answer this question:

Was such defective condition a cause of enhanced injuries to (plaintiff)?

Answer:_________

Yes or No

9. [If the evidence reflects the plaintiff was contributorily negligent in causing enhanced

injuries to himself or herself, then insert negligence and cause questions as to the

plaintiff.]

10. [The Committee is suggesting three alternatives to determine the amount of damages

attributable to the enhancing incident and who is responsible for same. Which

alternative to use will be determined by the evidence and to a lesser degree by the

style of the judge.]

a. If you have answered "yes" to at least one of questions 2 and 4 and have thus

found at least one of the parties at fault in causing the (first accident), and have

further answered question _____ "yes," then answer this question:

Taking 100% as the total injuries and damages sustained by (plaintiff), what

percentage of those total injuries and damages do you attribute as being caused

by (enhancing injury defendant)?

_____%

b. If you have answered "yes" to at least one of questions 2 and 4 and have found

at least one of the parties at fault in causing the (first accident) and have

further answered question _____ "yes," then answer this question:

Taking 100% as the total injuries and damages sustained by (plaintiff), what

percentage of those total injuries and damages do you attribute as being caused

by:

i) (Describe initial accident or incident)? _____%

ii) (Describe enhancement incident)? _____%

Total 100%

c. What sum of money will fairly and reasonably compensate the (plaintiff) for

any part of his or her total damages that were sustained as natural and probable

consequence (of the enhancing incident) (by the enhancing tortfeasor) with

respect to:

i) Pain, suffering, and disability to date? $_______

ii) Other subparts as required by the evidence, etc. $_______