Getting Damages from a Car Accident That Wasn’t Your Fault

How to establish proportional comparative fault in a Wisconsin

By S.M. Oliva

Car accidents are often the result of driver negligence. For example, a driver runs a red light and hits another car. In such cases, Wisconsin law allows the injured victims to sue the negligent driver for damages.
But what about car accidents where liability is not so cut-and-dry? Many times, a personal injury defendant or their insurance company will try to blame the victim, alleging their own negligence contributed to or outright caused the accident. “I’ve heard people who had insurance adjusters tell them that they are 10 percent at fault just for being there,” says Theresa Laughlin, an attorney at Habush Habush & Rottier in Wausau. “That’s just not the case. You’re only at fault if you have done something wrong—if you didn’t slow down in an intersection, if you were going faster than the speed limit, if you were not paying attention.
“When the insurance company for the other driver calls you,” she adds, “I always recommend not to give a statement. Just tell them to get a copy of the police report, and don’t give them a medical authorization.”
In any accident, Laughlin recommends calling the police, so they can document what happened and get insurance information from the other party. Take photos of the damage to the vehicles, and get the names and numbers of any witnesses.
That being said, can a victim still collect damages even if they were partly at fault?
Understanding Contributory Negligence
While a handful of states still adhere to the rule that a plaintiff who is even 1 percent responsible for an accident cannot collect damages, most states apply a more balanced approach known as “comparative fault,” or as it is known in Wisconsin, “contributory negligence.”
Basically, contributory negligence is a partial defense to a personal injury claim. Taking our example from above, suppose Driver A runs a red light and hits Driver B, who was making an illegal left turn. If Driver A sues Driver B for damages, Driver A would raise contributory negligence as a defense, alleging Driver B's illegal left turn was partly to blame for the collision. “If you’re 20 percent at fault,” says Laughlin, “the other driver’s insurance company is only responsible for paying 80 percent of their damages.”
Ultimately, it is up to the finder of fact—a jury or a judge, if the parties opt for a bench trial—to apportion liability. There is no single “scientific” formula. After hearing all of the evidence, the jury might allocate liability 60 percent to Driver A and 40 percent to Driver B. Or the jurors may divide the fault equally at 50/50.
Wisconsin's 51 Percent Rule for Contributory Negligence
Under the state statute, a plaintiff's contributory negligence “does not bar recovery” in a personal injury lawsuit so long as “that negligence was not greater than the negligence of the person against whom recovery is sought.” In other words, if you are injured in a car accident and sue the other driver, you cannot collect any damages if the jury or judge determines you were more than 50 percent at fault. (This is sometimes called a “51-percent rule.”) So even under a 50/50 scenario, the negligent defendant would still owe you money.
However, contributory negligence does reduce the amount of any award proportional to your negligence. Say a jury awards you $100,000 in damages but finds you were 40 percent responsible for the accident. The judge would then be required by state law to reduce the final amount of your award by 40 percent—from $100,000 to $60,000.

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