Negligence-Contributory Negligence-Comparative Negligence in Wisconsin

By John DiMotto

In most negligence based law suits the case is not just about whether the defendant was negligent, rather it is also about whether the plaintiff was also negligent, that is, did the conduct of the plaintiff contribute to cause the accident and the attendant injuries. It does not matter whether it is a multiple vehicle automobile accident, a motor vehicle-pedestrian accident, a slip and fall on private or commercial property or even a dog bite case.

In Wisconsin, every person owes a duty of ordinary care to himself/herself and to every other person in the world. (The minority view from the Palsgraf case.) Ordinary care is that degree of care that a reasonable person would exercise in the same or similar circumstances. It is because of this definition that judges instruct juries to use their common sense and long experiences in life in evaluating conduct. For example, when a driver is approaching an intersection with the green light in his/her favor, the driver must still keep a careful lookout upon entering the intersection to make sure that a reckless driver isn't about to "blow a red light." While the driver "blowing the red light" is usually found most negligent in causing the accident, the driver with the green light may be found to be contributorily negligent to some degree.

Contributory negligence is addressed in Wisconsin Statutes section 895.045. This statute modified common law. Under common law any negligence on the part of the plaintiff precluded recovery. Under 895.045, the negligence by the plaintiff is compared with that of the defendant to determine what, if any, recovery the plaintiff will receive. This is the concept of comparative negligence. What this means is that if the defendant is found to be 80 % negligent and the plaintiff is found to be 20 % negligent, the plaintiff will recover 80 % or any damage award. If the plaintiff and the defendant are equally negligent (50 % - 50 %), the plaintiff will recover 50 % of any damage award. However, if the plaintiff is more negligent than the defendant, the plaintiff recovers nothing. So, if the plaintiff is 51 % negligent and the defendant is 49 % negligent, plaintiff collects nothing. Also, if there are multiple parties, the plaintiff can only recover from each defendant in relation to that defendant's percentage of negligence unless that particular defendant is over 50 % negligent. So, if the plaintiff is 20 % negligent, defendant 1 is 40 % negligent and defendant 2 is 40 % negligent. while the defendant can collect 80 % of the damage award, the plaintiff can only collect up to 40 % from each. If defendant 1 is judgment proof, the plaintiff will never get more than 40 % - from defendant 2. However, if plaintiff is 20 % negligent, defendant 1 is 55 % negligent and defendant 2 is 25 % negligent, plaintiff can recover the entire 80 % from defendant 1. The "modified comparative negligence" position of Wisconsin attempts to provide fairness to all parties.