In many car accident cases, slip and fall cases, motorcycle accident cases, truck accident cases, or general liability cases, insurance companies try to blame the claimant for causing the accident or the injuries. When this happens, a judge is typically required to give the jury a question on its verdict form asking the jury not only if the defendant driver was negligent in causing an accident, but also whether the claimant was negligent in causing the accident or their own injuries. The evidence that is required to ask such a question, called a “contributory negligence question”, is minimal. Whenever any evidence of negligence is introduced, the judge is required to add such a question. The fact that the judge is asking about contributory negligence does not mean that the jury needs to answer “yes” to that question.
What happens if the jury answers “yes” to a question about negligence of the claimant? The jury is told to allocate the fault or negligence between the parties, using percentages. The insurance companies and other defendants prefer to keep jurors in the dark about what happens when a claimant is negligent. What does assigning a percentage of negligence to a claimant mean?
This is how it how it works:
- An injured party’s damages are reduced by the percentage of negligence assigned to the plaintiff. If the jury awards $100,000, and determines the plaintiff is 40% to blame, the plaintiff recovers $60,000.
- However, if an injured party is more at fault than a defendant, the injured party recovers nothing. In the above example if the injured party is 60% to blame, and the defendant is 40%, the injured party recovers nothing.
- In cases where there are multiple defendants, for instance a multi-car accident, this comparative negligence law can work a hardship, as the negligence of each plaintiff is compared to each defendant individually, rather than as a group. If the claimant was 40% at fault, and there were two defendants, each 30% at fault, then the plaintiff recovers nothing. Even though the collective negligence of each defendant was 60%, it does not matter because the comparison is made with individual defendants.
The working’s of Wisconsin’s comparative negligence laws are not generally known by the public, and the insurance industry would like to keep jurors in the uninformed. There have been reported instances where a jury intends to award a claimant money, but because of the comparative negligence system in Wisconsin, the claimant ultimately collects nothing.