WE KNOW HOW TO AVOID LEGAL TRAPS: COMPARATIVE NEGLIGENCE LAW OF WISCONSIN

Wisconsin has a comparative negligence statute which means that a jury must find you are no more negligent than the defendant, i.e. the person who injured you, to recover. If you are found more negligent, you lose. The jury is instructed by the judge to answer a “special verdict” which usually consists of 6 or more questions which ask about the negligence of the defendant and the plaintiff (you) and then asks the jury to compare your and the defendant’s negligence taking 100% as to total negligence in the case. What the jury does not know (and the judge or the lawyers cannot tell it) is that if the jury finds the plaintiff more than 50% negligent the plaintiff does not get a dime. If the plaintiff is as negligent or less negligent than the defendant, then the plaintiff recovers the amount awarded to him/her: less the amount of negligence found on the plaintiff. As an example, assume the jury awarded the plaintiff $100,000 but found him 60% negligent, he would not get any money. However, if they found he was 40% negligent (and of course the defendant 60%) then he would receive $100,000 reduced by 40%, or a net recovery of $60,000. Other states for the most part have adopted Wisconsin’s comparative negligence law but have varied it so that in two aspects they are different: one, the court, and lawyers advise the jury as to the effect of the law and two, the law is less punitive. Most of the states have a “pure” comparison, i.e. there is no 50% or 51% bar to recovery, if the plaintiff we discussed above is 60% negligent, he will still receive $40,000.

This fact of legal life is important because it is a prime consideration not only in jury trials but in the settlement of claims. It is this ultimate truth that drives the judgment of value both for the insurance companies but also the plaintiffs’ lawyers who specialize in this work. While all of them know this law very few of them have had a tremendous amount of jury trial experience the Team has. We know and recognize these “contributorily negligent” factual situations and know how to find and reveal the real “truth” of a case, so as to accurately portray the conduct of our clients. An example, the Mall Store where you shop denies your claim on the basis that you were “contributorily negligent” because you failed to see the water on the floor and that your slip and fall was due to your “failure to keep a proper lookout”. However, what it has failed to acknowledge and weigh in its assessment of your claim is the fact that the store maintained an attention-demanding display of its products at the same place you fell that caught your eye and caused you not to perceive the hazard. After the photographs of this display and this argument was pressed by the Team, the insurance company paid, realizing that the jury will know and the Team will tell it, “the store made the sale of its goods a priority over customers’ safety” and that “profit and greed cannot trump the lives and health of our citizens.”

In a poorly guarded machine, the man’s hand was mauled. The machine’s manufacturer defended claiming that it had adequately guarded the machine. After examining the machine the Team found that the guard that was placed on the machine was a total failure, the manufacturer had placed the guard at the wrong part of the machine, not where the operator actually had to feed the parts into it. The Team then hired the machine design experts to prove this and when the manufacturer “saw the light” it paid. In fact, in that case the defense lawyer, an exceptional one, said “we failed to see what was in plain sight but thanks to you we will now change all of the machines to prevent this from happening again.” The old legal adage, “it is better to have a fence at the top of the cliff than to have an ambulance below” applies to this case and many more like it.