The elements a plaintiff must prove to successfully bring a cause of action for negligence under Wisconsin law are: (1) the existence of a duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the breach and the injury to the plaintiff; and (4) actual loss or damage sustained by the plaintiff.
Wis. Stat. § 895.045 states that contributory negligence shall not bar recovery in an action by any person or the person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought. Further, both economic and non-economic damages are to be reduced in proportion to the percentage of negligence attributable to the plaintiff. This means that a plaintiff can still recover even if partially at fault for the injury. Wisconsin has a modified comparative fault system whereby the plaintiff can recover so long as their level of fault is 50% or less. If a plaintiff is found to be 51% or more at fault for their own injury, the plaintiff is barred from a monetary recovery.
For example, if plaintiff was awarded damages in the amount of $1,000,000 and a court or jury finds the defendant to be 65% at fault and the plaintiff to be 45%, the plaintiff would be entitled to recover 65%, or $650,000 of the total damages award from the defendant. However, if the plaintiff was found to be 51% at fault, they may not be able to recover any monetary award.
Joint and Several Liability
Wisconsin is a several liability state in actions pertaining to negligence where the defendants are found to have been less than 51% at fault for a plaintiff’s injuries. However, if a court finds that defendants acted in concert to cause the plaintiff’s injuries, they will be held to be jointly and severally liable for damages awarded by the court. Under joint and several liability, even a defendant whose degree of fault was comparatively small could be responsible for the entire amount of damages as long as his negligence was the proximate cause of injury.
Where one defendant has paid more than their proportional share of liability that defendant has the right to seek contribution against any other joint defendant who has not paid its proportional share.
Compensatory damages are awarded by a court to compensate the plaintiff for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore the plaintiff – as much as possible – to the condition they were in prior to the injury occurring.
Actual damages are meant to reimburse the plaintiff for out-of-pocket expenses for items such as medical expenses. General damages may also be awarded for pain and suffering, mental anguish, loss of opportunity, and loss of future income.
Punitive damages are meant to punish a defendant rather than to compensate the plaintiff.
In Wisconsin, punitive damages may be awarded if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. Generally, an award for punitive damages under Wisconsin law may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater.
The law firm of Walker Morgan is located at 135 E Main St., Lexington, SC 29072. All lawyers at Walker Morgan are licensed to practice law in the State of South Carolina. Should you wish to retain our firm for legal representation regarding a potential case in any other jurisdiction we are required to associate local counsel in that foreign jurisdiction and seek permission from a court of the foreign jurisdiction to temporarily engage in the practice of law therein for purposes of pursuing your potential claim only.
By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in Wisconsin. Should you have a question/concern specific to Wisconsin law, please contact an attorney licensed to practice law in the State of Wisconsin.