Am I negligent for being there in a car accident? This is a question people have especially after the insurance adjuster tells you the insurance company is reducing your property damage or personal injury recovery be a percentage because you are at fault just for being there. This is not correct. There is no law in Wisconsin that says a driver is negligent or partly responsible for an auto accident just for being there.
If a case does not settle but goes to court, there usually is a question on the verdict asking the jury to determine what percentages of fault or blame it attaches to each driver in causing an accident or collision. But again, there is no law that says the jury must apportion any negligence percentage to every party. For example, if I am stopped at a red light and rear ended, I am not at fault, but the other driver is 100% at fault for failure to see an object in plain sight, failure to stop, lookout and other acts and omissions of negligence. Do not get suckered in thinking you are at fault just for being there.
In fact, in Wisconsin there is a jury instruction, which the judge reads to the jury as a correct explanation of the law, that states:
Every user of a highway has the right to assume that every other user of the highway will obey the rules of the road. However, a person cannot continue to make this assumption if the person becomes aware, or in the exercise of ordinary care ought to be aware, that another user of the highway, by his or her conduct, is creating a dangerous situation. Under such circumstances, a person using the highway must use ordinary care to avoid the danger.
Wis JI-Civil 1030 Right to Assume Due Care by Highway Users
Also, if I face an emergency situation, in most circumstances, I am not negligent for not avoiding it:
… as to management and control, … a driver may suddenly be confronted by an emergency, not brought about or contributed to by his negligence. If that happens and the driver is compelled to act instantly to avoid collision, the driver is not negligent if he makes a choice of action or inaction that an ordinarily prudent person might make if placed in the same position. This is so even if it later appears that his choice was not the best or safest course. This rule does not apply to a person whose negligence … created the emergency.
Wis JI-Civil 1105a Management And Control in Emergency
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