Many of us have heard the phrase, often thrown around by insurance companies, that you are 10% at fault just for being there. That is not the law in Wisconsin. You are not 10% at fault for “being there” when an automobile accident occurs. However, you might share some of the fault or blame under the law, even if it wasn’t you who was the primary cause of the accident. Here we will look at the Wisconsin Comparative Negligence Law and what it really means.
In order to successfully bring a claim for personal injury, you have to first establish who was at fault for causing your injuries. Wisconsin law requires application of comparative negligence in determining who was at fault for causing your injuries.
To understand comparative negligence, we must first look at negligence itself. Negligence is defined in the Wisconsin Civil Jury Instructions:
A person is negligent when [he or she] fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.
WIS JI-CIVIL 1005 Negligence: Defined. A very basic example of negligence in an automobile accident is failing to stop for a red light. A driver who fails to stop for a red light is not using ordinary care. It most likely is not that driver’s intention to cause harm to another person, but by failing to stop at the red light, that driver may indeed cause a collision with another vehicle resulting in harm to the driver and/or passengers of that other vehicle. A determination of who was at fault for the accident doesn’t stop here, though.
In Wisconsin, you have to determine the fault of all of the parties involved. Again, the Wisconsin Civil Jury Instructions provides the following as pertains to comparative negligence:
Every person in all situations has a duty to exercise ordinary care for his or her own safety. This does not mean that a person is required at all hazards to avoid injury; a person must, however, exercise ordinary case to take precautions to avoid injury to himself or herself.
WIS JI-CIVIL 1007 Contributory Negligence: Defined. Getting back to the example above, if Driver A runs the red light, Driver B might also share some of the blame, or be comparatively negligent. The facts and circumstances of each individual accident would have to be examined to determine if Driver B was able to avoid the accident. Could Driver B have hit the brakes or swerved his or her vehicle to avoid the collision? If Driver B was stopped at a red light just before it turned green, did Driver B look to make sure traffic was clear before entering the intersection? If Driver B was in motion when his or her light turned green, was driver B traveling at a safe and reasonable speed leading up to and through the intersection? These are just some of the examples of the issues that would be examined in determining whether Driver B shared any negligence with Driver A, and if so how much blame to assess to either driver.
In Wisconsin, application of the comparative negligence statute determines at what rate, if any, you can recover for your personal injuries against another party.
[Comparative] 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.
Wis. Stats. s. 895.045(1). Getting back to our above example, if after examining all the facts of the accident it is decided that Driver A was 80% at fault for the collision and Driver B was 20% at fault for the collision, and that Driver B’s injuries have a full value of $10,000.00, Driver B would only be able to recover 80% of that sum, or $8,000.00, because Driver B is not able to recover for the 20% of the damages that he or she was determined to have caused. Remember, if Driver B is 51% at fault or more, Driver B does not recover anything.
As you can see, comparative negligence can greatly impact the total recovery in a personal injury case. This does not mean, though, that in every situation a driver in an accident shares some of the blame. A key example where a driver is rarely found to be comparatively negligent is in a rear-end accident. The driver or motorcyclist who gets rear ended, barring unusual circumstances, is almost never found to be comparatively negligent. Each accident is different, and it is the facts and circumstances of each accident, the actions and/or inactions of each driver that will determine which driver or drivers caused an accident and to what degree or percentage will each driver be held accountable.
If you or a loved one has suffered an injury due to the negligence or fault of another person, call Gruber Law Offices, LLC today for your free consultation. There is no fee unless we win and we can meet you at a place that is convenient for you such as your place of work, hospital, home, or our conveniently located downtown Milwaukee office.
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