fault in civil actions, Wisconsin Personal Injury Lawyer

Fault is an important concept in most civil legal interactions—such as a lawsuit after a car accident. If one party asserts that another has caused him or her some sort of harm, several preliminary questions must be answered. Who is to blame? How much blame falls on each party? Was one party more at fault than the other?

When determining fault, states use one of three different approaches. Each approach can result in an entirely different outcome. Thus, an important step in preparing a civil action is understanding the different theories of fault that may govern the outcome of your case.

Pure Contributory Negligence 

Of the three main fault theories, the pure comparative negligence theory is the most restrictive. When applying this theory, the first step is to determine how much each party's actions contributed to the damage at issue.

If the party that is trying to recover damages was in any way responsible for his or her own injury, then he or she is totally barred from recovery. Under this theory, if the court decides that the defendant is 99 percent at fault and the plaintiff is 1 percent at fault, then the plaintiff is precluded from recovering any of his or her damages. Fortunately, however, only a small minority of states use this theory.

Pure Comparative Fault 

This is the most plaintiff-friendly of the three and is almost the exact opposite of pure contributory negligence. Pure comparative fault allows an injured party to recover damages regardless of how much his or her actions contributed to their injury. The percentage of the injured party's fault will still be deducted from the amount awarded, but there is no cap on the amount of fault. For example, if a plaintiff's damages were determined to be $1, 000.00, and the plaintiff was deemed to have been 90 percent responsible for his or her own injuries, he or she would still be allowed to recover $100.00 from the defendant. The court would deduct 90 percent from the total damages and award him or her that amount.

Modified Comparative Fault—The Wisconsin Approach

Modified comparative fault is the law in Wisconsin. The approach is similar to the pure contributory negligence approach—the first step is to allocate fault between the parties. From there, the analysis splits.

Various states apply a rule that allows a plaintiff to recover damages so long as his or her fault in the incident falls under 50 percent; hence, if a plaintiff is no more than 50 percent at fault, he or she may recover from the defendant. The amount recovered will be reduced by his or her fault. Therefore, if a plaintiff's damages amount to $1, 000.00, and he or she is found to be 49 percent at fault, the plaintiff would receive $510.00. If he or she is found to be 50 percent or more responsible, he or she would be barred from recovering.

The Wisconsin application of the modified comparative fault analysis allows a plaintiff to recover so long as his or her percentage of fault falls under 51 percent. The analysis is the same as above, but it allows a plaintiff to receive compensation so long as he or she is no more than 50 percent responsible for his or her injuries. Therefore, applying the same scenario as mentioned above, a plaintiff who suffered damages amounting to $1, 000.00 and was 50 percent at fault would be allowed to recover $500.00. If the plaintiff was found to be responsible for 51 percent or more of his or her injuries, he or she would not be able to recover.

However, if there are multiple defendants, the analysis explained above may not apply. For example, if the plaintiff is 50 percent at fault, and two separate defendants are each 25 percent at fault, there is no recovery for the plaintiff. The party against whom the claim is made must have at least the same amount of negligence, or more, as the plaintiff, before they are liable. If you have been injured in an accident where more than one defendant may be at fault, you should contact an attorney as soon as possible.

Legal Help after an Accident

If you or a loved one was suffered injuries due to the negligence of another, please contact one of our experienced Green Bay personal injury attorneys or Appleton personal injury attorneys for help initiating a claim or personal injury lawsuit. We can help you recover compensation for your injuries, bills, and other expenses. Our offices are conveniently located in Appleton, Green Bay, and Oshkosh.