How do you make sense of comparative negligence in a bicycle accident?

by Tea Norfolk • 2 Comments

Every person who uses the roadway – whether a pedestrian, motorist, or bicyclist – is required to use reasonable care to protect his or her own safety as well as the safety of others. To fall below that standard of care is to be negligent. Comparative negligence is comparing which party was less careful than the other or determining which party is more at fault.

In Wisconsin, if the injured party, or plaintiff, is less than 50% at fault, then the plaintiff can recover from the defendant the total amount of damages reduced by the percentage of the plaintiff’s fault. That sounds like a mouthful.

Here is a simplified scenario: A bicyclist is traveling in the bike lane straight through an intersection. The driver of a car to the left of the bike lane is looking left for oncoming cars and does not look right. The car does not use its turn signal and turns right, unexpectedly darting across the path of the bicyclist, causing the bicyclist to hit the car. The bicyclist lands on the hood of the car and falls down to the road sustaining injuries that require medical attention. The bicyclist’s medical bills, pain and suffering, and lost wages total $100,000. Those are the bicyclist’s damages. The jury finds the bicyclist 10% at fault simply for being in the wrong place at the wrong time and the driver 90% at fault. The bicyclist can recover 90% of the damages, which is 100% of the damage reduced by the bicyclist’s 10% fault, which totals $90,000. If, however, the jury found the bicyclist 50% or more at fault, the bicyclist would recover nothing; the bicyclist must be 49% or less at fault to recover damages.

Determining the percentage of fault can be much more complicated than the above example. The plaintiff will have to prove that the defendant’s negligence was the cause of her injuries. If the defendant wants to reduce the amount of damages he pays, he will have to prove that the plaintiff’s behavior played a part in causing the accident and her injuries.

2 Responses

  1. I am curious, do you know if this applies in other states other than Wisconsin?

  2. Tea Norfolk says:

    Great question! Each state has its own comparative negligence or contributory negligence law. States with a pure contributory negligence law bar recovery if the plaintiff is even 1% at fault. States with a pure comparative negligence law reduce the plaintiff’s recovery by the proportionate amount the plaintiff is found negligent, even if the plaintiff is found to be more at fault than the defendant. A majority of states have some form of what is called a modified comparative negligence law, which requires the plaintiff to be either 50% or 49% at fault or less. Wisconsin’s comparative negligence law is in this category. Each state with a modified comparative negligence law has its own specific requirements for the way the law operates in that state.

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