In Wisconsin, negligence is when a person 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. This is from Wisconsin jury instruction 1005. It’s easy to think of negligence as the breaking of a rule. Once you know what the rule is, simply compare the defendant’s conduct or driving to what the rule says. For example, the rule is that one must come to a complete stop at a stop sign before proceeding; if a driver does a rolling stop, he is negligent. If his negligence causes or contributes to an accident and injuries, then that negligent driver is responsible for his share of causing the accident. When we try to imagine generally what ‘reasonable’ conduct is, it becomes a rather cloudy exercise, which the defense layers with confusion, complexity and ambiguity. In order for the plaintiff to carry his burden of proof, to convince the judge or jury that the defendant was negligent, we need clarity, simplicity and a degree of certainty. In essence, the plaintiff must show that the defendant had at a crucial decision point a binary choice to make, a yes or no, a right or wrong, in computer terms, a 1 or 0. By making the wrong choice, he was negligent. In fact, Wisconsin law clearly explains this rationale in another jury instruction:


Violation of a safety (statute) (regulation) (ordinance) is negligence as that term is used in the verdict questions and my instructions.  (Plaintiff) claims that (defendant) violated a safety (statute) (regulation) (ordinance) that provides:

[Read appropriate motor vehicle jury instruction applicable to the facts or summarize or read statute, administrative rule, or ordinance at issue]

If you determine that (defendant) violated this safety (statute) (regulation) (ordinance), the violation is negligence.

Car accident cases are usually easy to identify what the defendant did wrong because the statutes have very specific Rules of the Road, for example speed limits or required stops. Sometimes however, there is no specific statute or regulation we can identify. In these cases, it may be helpful to enlist an expert such as a mechanic, engineer, electrician or accountant who can explain what the required rules of conduct (road) are and then compare the defendant’s conduct to see if he violated it. Again, keeping it simple, clear and certain.

McCormick Law Office attorneys in Milwaukee, Wisconsin.