The first question in how to determine automobile accident fault is whether one or more driver is negligent in their driving just before the accident occurred.  A driver can only be at fault for an automobile accident if he or she is negligent.

Wisconsin defines negligent driving as failing 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.  There are many specific rules of the road defining what is ordinary care, such as stopping for a stop sign or a red light, the failure of which is negligence.

The next question in how determine accident fault is whether a driver’s negligent driving caused the accident.  For example, if a driver is speeding a couple miles over the speed limit when he is broadsided by another driver who goes through a red light, the speeding driver’s negligence may not have caused or contributed to the accident.

Accident causation is defined in Wisconsin as whether someone’s negligence caused the accident or injury.  This question does not ask about “the cause” but rather “a cause” because an accident may have more than one cause.  Someone’s negligence caused the accident if it was a substantial factor in producing the accident.  An accident may be caused by one person’s negligence or by the combined negligence of two or more people.

If a jury finds both drivers negligent and that each of the their negligent driving caused the automobile accident, then the jury must compare each driver’s conduct and assess a percentage of fault or responsibility between the two assuming the total contributing fault to equal 100%.

Contributory negligence of an injured driver does not bar recovery in an action as long as 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 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.

At McCormick Law Office in Milwaukee, Wisconsin our attorneys have extensive experience in how to determine accident fault. Believe in better.