In Wisconsin negligence car accident cases, the injured person’s contributory or comparative negligence functions as the key factor between accident causation responsibility and recovering money damages for injuries. After they jury or judge decides factual liability questions about how much each driver contributed to the accident and how much the damages are, then comparative negligence rules and principles are applied to those findings to determine whether a claimant is entitled to recover from a particular person and, if so, the amount of that recovery. The comparative negligence rules affect all types of damages for conduct that is caused by negligence.
Before comparative negligence, there was the harsh doctrine of contributory negligence which arose out of common-law not statutes. Butterfield v. Forrester, 103 Eng. Rep. 926 (1809). It is an act or omission amounting to a lack of ordinary care on the part of a complaining party that, occurring in concert with a defendant’s negligence, is a proximate cause of the complainant’s injury. Loehr v. Crocker, 191 Wis. 422 (1926). Under common law, any contributory negligence on the part of the injured plaintiff completely bars the plaintiff from recovering for injuries, no matter how minor the plaintiff’s negligence is in proportion to that of the person from whom recovery is sought. Buchman v. Jeffery, 135 Wis. 448 (1908). That common-law rule is based on the principle that a tortfeasor, even if injured, should not profit from wrongdoing.
Comparative negligence compares the percentage of causal contributory negligence of the plaintiff with the causal negligence of the party from whom recovery is sought for purposes of determining whether and to what extent the plaintiff can recover damages from the party from whom recovery is sought. Under comparative negligence, contributory negligence is not always a bar to a claimant’s recovery; typically, such negligence merely reduces the plaintiff’s damages in proportion to the percentage of contributory negligence found. Comparative negligence is based on principles of relative fault. Bielski v. Schulze, 16 Wis. 2d 1 (1962).
Under Wisconsin law, Wis. Stats. Sec. 895.045, a plaintiff’s causal contributory negligence is compared with the causal negligence of the defendant, and the plaintiff is allowed to recover from the defendant if the plaintiff’s causal contributory negligence is not greater the defendant’s negligence. The recovery is reduced in proportion to the amount of the plaintiff’s causal negligence. If the defendant’s negligence is 51% or higher, that defendant is liable for the full amount of the allowable recovery (anything less the plaintiff’s comparative share). If its less than 51%, that person is liable only for his percentage.
McCormick Law Office in Milwaukee, Wisconsin attorneys work to limit the effect of comparative negligence on an injured person’s settlement or recovery.