You just got into an accident. You are hurt. You were going 60 in a 55. What now? I have a lot of friends and family who think that if they get injured in an accident where they are partially to blame then they cannot recover any damages. There are plenty of folks out there who have not pursued a claim after they got injured because they felt their own actions were part of the reason for the accident. Wisconsin law on negligence says otherwise and what is really important when there is one plaintiff and one defendant is who was more to blame.
First, personal injury accidents usually happen when one or both parties are negligent. According to the Wisconsin Civil Jury Instructions Committee, negligence is defined as when someone 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.
Wisconsin is a “comparative negligence” state which means for a plaintiff to recover damages in any negligence case the jury must find that the plaintiff’s fault was less than or equal to the defendant. In other words, the plaintiff cannot be found more than 50% at fault for the accident. If the plaintiff is found equally at fault with the defendant, the plaintiff still recovers. So if it is a coin flip on who is to blame, the plaintiff still recovers.
Another important point regarding damages is that any amount the jury decides to reward gets discounted by however much the jury decides the plaintiff is at fault. For example, if there was a car accident where it was 50% the defendant’s fault and 50% the plaintiff’s fault and after a jury trial the jury returns a verdict for $100,000 for the plaintiff, the plaintiff would only recover $50,000 because the law requires that the reward amount must be discounted by however much the plaintiff was at fault.
Using the same example from above, if the jury finds that the plaintiff is 51% liable, only one more percent than before, the law will reward the plaintiff with ZERO dollars because the plaintiff was more at fault than the defendant.
So remember, even if you get into an accident and you believe that you are partially at fault for that accident, it does not mean you aren’t entitled to damages. There are a lot of variables at play when there is an accident and this article just covers when there is one plaintiff and one defendant. As always, it is best to set up an appointment with an attorney to determine what your options are whenever you get injured. Call us today for your free consultation at 866-455-2993.
See Wis. Stat. 895.045