Legal Memorandum: Motion to Dismiss and Improbable Facts

Issue: Can a motion to dismiss under Fed. R. Civ. P. 12(b)(6) stand if a judge believes that actual proof of the alleged facts is improbable?

A court may limit damages awarded based on the comparative negligence statute, Wis. Stat. § 895.045.  The statute provides:

(1) Comparative negligence. 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, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering.  The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent.  The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.

(2) Concerted action. Notwithstanding sub. (1) , if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.85(5) .