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Knowing Who Is At Fault & What That Means For Your Recovery

Insurance companies will often throw around the phrase that a person is automatically 10 percent at fault for just being there. While that may be true in some states, it is not the case in Wisconsin. In Wisconsin, we have what is known as comparative negligence, and it is quite complicated.

So what is negligence? At its core, negligence occurs when a person fails to exercise the level of care that another, reasonable person would use in the same situation. Furthermore, someone does not need to do something on purpose for it to be negligent. For example, taking your eyes off the road to check and see who is calling and then rear-ending the person driving in front of you does not mean that you rear-ended them on purpose. You were most likely negligent – meaning that a reasonable person in your same situation would have used a higher level of care.

Comparative negligence requires that all parties in an accident be examined for their comparative fault. The plaintiff’s recovery is reduced by whatever percentage of negligence that can be attributed to his or her actions. This process is very fact-specific. Here is a very basic example of how this process works:

 Gloria was on her phone with her husband when she blew past a red light. Her car clips Harry’s car, and he spins out. At first, it may seem that Gloria is 100 percent to blame, and perhaps she is. However, there are other factors to consider. Could Harry have avoided the collision? Could he have hit the breaks or swerved? Did his light just turn green, and did he check his surroundings before entering the intersection? If the answer is yes to any of these questions, Harry might be partly to blame.

After all is said and done, it was determined that Gloria was 75 percent at fault for the accident while Harry was 25 percent at fault. The injuries that Harry sustained to himself and his car amounted to $40,000. Comparative negligence would dictate that Harry would only be able to recover the portion of his claim that he was not responsible for (75 percent). Thus, he would be able to recover $30,000 (75 percent of $40,000). However, if Harry were more at fault than Gloria, he would recover nothing. Even if Harry were only 51 percent negligent, he would still be unable to recover damages.

Insurance adjusters will often try their hardest to find some sort of blame on the part of the plaintiff, which is why you should be hesitant in speaking to them alone. Furthermore, these matters are just complicated. This process can become even more of a mess if there are multiple defendants involved, as there are even more rules of determining fault. At Levine Eisberner LLC, our attorneys are committed to ensuring you receive the compensation that you deserve after an accident. Call us now for a free consultation at 1-888-367-8198.


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