It is a common misconception that because an injured person is partially at fault for an accident, they cannot bring a claim for compensation. Under Wisconsin law (Stat. 895.045), “contributory negligence”, or shared fault, is taken into account. Understanding the basics of liability in a personal injury case can be confusing, and further complicated by the number of different scenarios that come into play. In order to better understand shared fault, let’s consider the following scenarios.

Contributory Negligence is exactly as it implies. It is an act or conduct that contributes to an accident. It can be used as a defense by the defendant to assign a percentage of the fault on the plaintiff, thereby reducing the liability of the defendant and the amount of allowable recovery they would be compelled to pay. For example, if a pedestrian crossing the street fails to check for traffic or obey the walk signals and is struck by a car, the driver of the car could assert that the pedestrian’s own actions contributed to them being struck by the car. This possible defense does not bar the pedestrian from filing a suit against the driver of the vehicle, but it could significantly reduce their recovery, depending upon the level of negligence assigned to them by a jury.

In the situation above, the pedestrian could be assigned any percentage of fault between 0 and 100%. Assume that the jury assigns 30% fault to the pedestrian, while the driver of the vehicle is afforded 70% liability. Wisconsin, along with twenty other states, follows the “Fifty-One Percent Rule”, allowing a recovery for damages by anyone with fifty percent or less of the assigned fault for an accident. However, their recovery would be reduced by the percent of negligence assigned to them. If the total damages awarded to the pedestrian in this example were $20,000, their total recovery would be reduced by thirty percent, or in this case, $6,000. In other words, they could receive a maximum of $14,000.

Consider another common scenario: Suppose two motor vehicles were involved in the pedestrian accident. Vehicle A strikes the pedestrian because he is not paying attention. But, Vehicle B shares some fault because they distracted the driver of Vehicle A by improperly signaling a turn. Wisconsin follows a modified joint and several liability rule. Any defendant is responsible for the entire verdict if they are found to be 51% or more at fault. If they are found to bear less than 51% of the fault, their liability will be limited to the percentage of fault attributed to them.

Joint and several liability comes in three main forms and differs from state to state: Pure joint and several liability, modified joint and several liability, and pure several liability. Wisconsin follows a modified joint and several liability rule, in which the defendant is responsible for the entire verdict if they are found to be 51% or more at fault. If they are found to bear less than 51% of the fault, their liability must be limited to the percentage of fault attributed to them.

If Vehicles A was determined to hold 53% of the fault of the pedestrian’s injuries, Vehicle B held 40% liability and the pedestrian had 7% liability, the pedestrian would have two options: (1) they could pursue Vehicle A for the full amount of the award, minus their 7% responsibility or (2) they could pursue each defendant for their assigned percentage of liability. The purpose behind the joint and several liability rule was to ensure that the injured party is made whole in one way or another.

Why might the injured party only pursue a claim against the operator of Vehicle A? It is possible that the operator of Vehicle B did not have insurance coverage.

Because the rules of liability can be confusing and contingent upon many various factors, it is always advisable to consult with a qualified personal injury attorney like those at Doar, Drill & Skow if you’ve been injured in an accident. They will walk you through your options and help you better understand the process that will achieve the most just settlement for you.