Defining Negligence Under Wisconsin Law

In most cases, seeking financial compensation after an accident in Wisconsin requires proof of negligence. While negligence can be loosely equated with fault, negligence has a precise definition under Wisconsin law, and accident victims and their families must be able to prove each “element” of this definition in order to seek the financial compensation they deserve. 

What is “Negligence” in Wisconsin?

The definition of negligence appears in Section 1005 of the Wisconsin Civil Jury Instructions. Even when a personal injury claim doesn’t go to trial, this is still the definition that applies—as settlement negotiations generally focus on what likely would happen if the case were to go to court. Under Section 1005: 

“A person is negligent when (he) (she) fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.”

As we mentioned in the introduction, this definition can be broken down into multiple “elements,” and plaintiffs must be able to prove each element in order to establish a claim for negligence. The elements of negligence in Wisconsin are:

• Failure to Exercise “Ordinary Care” – Filing a negligence claim requires proof that the defendant failed to exercise “ordinary care.” The Wisconsin Civil Jury instructions state that ordinary care is, “is the care which a reasonable person would use in similar circumstances.”
• An Act or Omission – Filing a negligence claim also requires proof that the defendant did something (or failed to do something) that led to the victim’s injuries. Essentially, this requires evidence of an act or omission that reflects a failure to exercise ordinary care. 
• The “Reasonable Person” Standard – Wisconsin’s definition of negligence also employs a “reasonable person” standard. This means that proving negligence requires evidence that a reasonable person would not have committed the same act or omission under similar circumstances. 
• “Unreasonable Risk of Injury or Damage” – The final element of a negligence claim in Wisconsin is proof of an “unreasonable risk of injury or damage.” If a reasonable person would have acted differently in order to avoid an unreasonable risk of injury or damage, then the defendant’s conduct was negligent. 

Although not part of the definition of negligence in Wisconsin, another key issue in personal injury cases is the concept of “causation.” This is made clear in Section 1001 of the Wisconsin Civil Jury Instructions, which states, “Before you can find either party at fault, you must be satisfied first, that the party was negligent, . . . and, second, that such negligence was a substantial factor in producing [the victim’s injuries].” If a defendant’s negligence caused (or was a “substantial factor” in causing) a victim’s injuries, then the defendant can be held liable under Wisconsin law. 

While this may seem fairly complicated, negligence can take many different forms, and accident victims and their families can file personal injury claims in a wide range of circumstances. Some common examples of negligence in motor vehicle accident cases include:

• Speeding, tailgating, and other forms of reckless and aggressive driving
• Running red lights and stop signs
• Driving while distracted
• Driving under the influence of alcohol or drugs 
• Failing to look before merging or changing lanes

Given the wide range of acts and omissions that can constitute negligence in Wisconsin, if you or a loved one has been injured in an accident under any circumstances in which you suspect someone else may be to blame, we strongly recommend speaking with a personal injury lawyer. This costs you nothing, and an experienced personal injury lawyer will be able to help you make an informed decision about whether to take legal action. 

Comparative Negligence: A Special Rule for Cases Involving Partial Fault

When facing liability for motor vehicle collisions and other types of accidents, insurance companies will often try to avoid (or at least limit) their liability by blaming victims for their own injuries. Why? Because when victims are partially at fault for their own injuries, Wisconsin’s comparative negligence law comes into play. 

Under this law, accident victims can seek financial compensation for negligence as long as they are less than 51% to blame for their injuries. If an accident victim is found less than 51% at fault (but more than 0% at fault), then the value of his or her personal injury claim will be reduced based on his or her percentage of fault. However, if an accident victim is found to be 51% at fault or more, the victim is not entitled to any financial compensation under Wisconsin law. This makes it critical not to make any assumptions about your legal rights.

Speak with a Madison Personal Injury Lawyer For FREE 

Do you want to know more about filing a negligence claim in Wisconsin? If so, we invite you to contact us. 
Contact Boller & Vaughan today online or at (608) 268-0268 for a FREE case evaluation. We proudly serve clients in Madison and throughout Wisconsin.