In a personal injury case, the court will take negligence into account if there is a situation that involves a person(s) that has “breached” their duty of care in the accident or incidental case. To be considered negligent, the injured individual would need to prove that the other individual or individuals involved have failed to fulfill their duty of care to act reasonably given the circumstances.
Wisconsin is a ‘comparative negligence state”. This means that when a case goes to trial, the jury has to consider if one of both parties were negligent. If the jury determines that both parties were negligent, then the jury has to apportion the degree of negligence both parties had in causing the accident. For a simple example, we have an intersection accident. The jury might find both drivers were negligent. They then apportion the fault. This is important because in Wisconsin, if you are found to be more than 50% at fault, you cannot collect from the other driver. Also, the value of any injury you suffered is reduced by the percentage that you are found at fault. So, for example, you are found 45% at fault and the other driver 55% at fault. You can then recover from the other driver. However, if your injury claim is determined to be worth $10,000, that recovery will be reduced by 45% of that amount which is your percentage of the negligence. Under that scenario you would only receive $5,500. If you are found to be 51% at fault, you get nothing.
In looking at who is at fault, the court look to the circumstances at the time, the reasonableness of your conduct under those circumstances, whether any safety law was violated (example, speed limits or yield sign violations) and your general duty to be aware of your surroundings and act reasonably. You have a duty to act safely and reasonably under the circumstances.
In addition, even if the other person is at fault, you have a duty to ‘mitigate your damages’. This means you cannot run up accident bills just because the other side will have to pay. You have to keep your damages to a reasonable level and resolve your injury as soon as reasonably possible. One example is getting your car repaired. You have to do that as soon as possible and obtain a reasonable cost of repair. The other driver is only responsible for fixing what the accident broke, nothing else. In the case of injury, you need to promptly see the doctor, follow the doctor’s advice, and do what you have to do to get better in a reasonable period of time. You cannot abuse seeing the doctor or getting treatments. If you do not act reasonably, the court/jury can reduce your claim for injury since you did not act reasonably to limit your injury. In other words, you did not mitigate your damages. Likewise if your healthcare provider is determined to have over treated you or treated you for issues not related to the accident, those fees and treatment will not be considered part of your claim.
If you or someone you know has been involved in a personal injury case that resulted from negligence, give Hart Law Office a call today at 414-436-3212 for a free consultation or visit our website today.
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