When an accident occurs and multiple people could be at fault, the jury decides the percentage of fault attributable to each party involved. Essentially, they are comparing the negligence in order to determine recovery. Each state has a different approach to comparative negligence. Some states use pure contributory negligence which says that the plaintiff’s recovery will be reduced by the percentage of negligence attributable to him or her. For example, if the plaintiff was 90% negligent and the total amount of damages was $10,000, the plaintiff would recover $1,000. In pure comparative negligence states, the plaintiff can still recover even if he or she is more negligent than the defendant.
Other states use modified comparative negligence. Within this modified category, there are two separate rules. One rule is the 50% rule which says that if the plaintiff and the defendant are equally at fault for causing the accident, the plaintiff will not recover anything. The second rule is the 51% rule which says that as long as the plaintiff’s negligence is not greater than the defendant’s negligence, he or she would still be able to recover. The difference between the two rules is that if both the plaintiff and the defendant were equally at fault, the 50% rule would provide no recovery, whereas under the 51% rule, the plaintiff would still be able to recover, but only half of the damages. Currently, Wisconsin follows the 51% rule. Wis. Stat. § 895.045(1) (2011-2012). But, Wisconsin has not always followed this rule. Prior to June 23, 1971, Wisconsin followed the 50% rule. That is where one of our very own attorneys comes into the picture.
On January 20, 1969, a woman fell as she was exiting a Milwaukee County bus. Kobelinski v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 504, 507, 202 N.W.2d 415, 418 (1972). As a result of the fall she fractured her left femur and underwent an open reduction surgery where her hip was pinned into place. Id. at 508, 202 N.W.2d at 418. After the accident, she retained the services of personal injury lawyer Jim Murphy. I worked with Jim, on many of his cases, and consider him to be one of the best personal injury lawyers that practiced in Milwaukee, in Wisconsin, or other parts of the nation.
I recall talking to Jim about the case, and how he handled this comparison question. At the time, the rule in effect in Wisconsin was a 50% rule, so that if the jury divided the fault equally, the plaintiff recovered nothing. That was a completely counter intuitive rule, that most people had no idea existed. And the lawyers could not tell the jury about this. Insurance company lawyers would really take advantage of this unknown, counter intuitive rule to argue for a 50-50 split on negligence. This was incredibly effective, as the defense was conceding negligence, and suggesting that just dividing it equally was a rational thing to do, and that trying to figure out a more precise number was just a guessing speculation. Dividing the fault equally was the theme, and that was the entire tenor of the argument, which was relentless.
How does one respond to an argument that seems reasonable but has dire consequences? Jim couldn’t tell the jury that an equal division of fault would result in a zero recovery for the plaintiff, so he did what he could.
In Jim’s closing argument he said, “if you should even remotely consider dividing the negligence fifty-fifty, that you would be doing the gravest injustice to my client, to Emily Kobelinski. So, I ask you to reject any kind of an apportionment of negligence that even remotely resembles fifty-fifty.” Kobelinski, 56 Wis. 2d at 519, 202 N.W.2d at 424.
Then, in his rebuttal argument, Jim said, “for God’s sake don’t consider fifty-fifty, because if you were to come back with that kind of verdict you would be doing my client the gravest kind of injustice.” Id.
On appeal, the defense counsel argued that the statements were improper and prejudicial because his statements informed the jury of the consequences of its decision. Id. at 520, 202 N.W.2d at 424. The Supreme Court held that while they did not approve of his statements, they did not constitute a prejudicial error because they did not “advise the jury of the result of its verdict.” Id. at 521, 202 N.W.2d at 425.
Jim set a strong example for all Milwaukee personal injury attorneys. He fought hard for his clients and did everything in his power to help them recover from their injuries. With Wisconsin’s current comparative negligence rule in mind, Murphy & Prachthauser attorneys continue Jim’s legacy and help prevent those injured from enduring the “gravest injustice.”