We have often heard from members of the community that if someone is involved in a car accident that person is partially responsible “just for being there.” This popular comment is not based upon the law. In fact, Wisconsin law does not indicate that a victim is partially responsible – just for being at the scene of the accident.
Consider this example. A drunk driver, we will call her Gladys, rear ends a young woman we will call Jane. Is Jane in any way responsible for this accident?
The first question is what has Jane done that has been negligent? If Jane has not behaved negligently, she should not be found responsible for the accident, under Wisconsin law. Under Wisconsin law, Jane should not be found partially responsible just for being there.
The second question for a jury would be how should we apportion negligence? In Wisconsin, a jury is asked to apportion negligence between the plaintiff (Jane) and the defendant (Gladys). The percentage of negligence shall not exceed 100%. Under the circumstances in this case, we would expect a jury to apportion 100% of the negligence to Gladys and 0% to Jane.
It is important to note that the apportionment of negligence directly impacts the amount of money Jane can recover. Let me explain. If the jury were to find that Gladys was 100% negligent and returned a verdict of $10,000, the entire $10,000 would have to be paid by Gladys (or more typically, her insurance company). If, however, the jury found Gladys 90% negligent and Jane 10% negligent, Jane could only recover 90% of the verdict ($9,000). In other words the percentages directly impact the amount of money the injured claimant can recover.
So, under Wisconsin law, a party to a case should not be found negligent – just for being there.