The laws of contributory negligence and comparative negligence help determine if an injured party can recover at all, and if so, what amount.
Contributory negligence is an old English common-law doctrine that said if an injured person did anything that contributed to the injury, then he or she could not recovery at all for their losses. Butterfield v. Forrester, 103 Eng. Rep. 926 (1809). The theory being that the injured person’s negligence contributing to the injury broke the causation chain from the defendant’s negligence almost in a ‘but for’ type of reasoning. It was also buttressed by the self-reliant streak that a wrongdoer (here the injured person) should not profit from his own wrongdoing. Bielski v. Schulze, 16 Wis. 2d 1, 16 , 114 N.W.2d 105 (1962). This led to unjust and inequitable results in Wisconsin and nationwide. As a practical matter, some juries would tend to ignore the plaintiff’s culpability or contributory negligence in order to reach a ‘fair’ result.
To be upfront about the legal determination, some courts and then state legislatures adopted what has become known as comparative negligence. Comparative negligence compares the percentage of negligence causing an accident or injury of all parties involved for purposes of determining whether and to what extent any injured party can recover damages from another party. Under comparative negligence, the contributing negligence of the injured party is not an absolute bar to recovery, but only a factor that reduces recovery according to the injured parties percentage of responsibility in causing the injury. This is fair and equitable. Wisconsin passed a comparative negligence law in 1931.
Currently in Wisconsin, Wis. Stats. Sec. 895.045 requires the plaintiff’s negligence to be compared with the negligence of the person against whom recovery is sought, and the claimant is allowed to recover from that person if the claimant’s causal contributory negligence is equal to or less than that person’s negligence. The plaintiff’s recovery is their loss, reduced in proportion to the amount of causal negligence attributable to the plaintiff. If the negligence of a person from whom recovery is allowed is greater than or equal to 51% of the total causal negligence, that person is liable for the full amount of the allowable recovery. If the negligence of a person from whom recovery is allowed is less than 51%, that person is liable only for, and can only be compelled to pay, the percentage of the allowable recovery equal to that person’s percentage of the total causal negligence. Multiple parties and product liability law can be more complicated calculations.
McCormick Law Office in Milwaukee, Wisconsin achieves medical bills, wage loss, pain, suffering and disability for person’s injured in Wisconsin car accidents.