Milwaukee, Wisconsin Personal Injury Law Blog

Who's at Fault - A Discussion of Accident Liability

2009-01-05T10:40:00.004-06:00

A determination of who is responsible for an automobile accident is the essential first step in representing an injured individual. I find that in the majority of car accidents, one driver is more negligent than the other. Although some accidents are the result of intentional acts, most are the result of negligence. Broadly defined, a driver is negligent when that person fails to exercise ordinary care. Wisconsin Jury Instruction 1005 defines ordinary care as that "care which a reasonable person would use in similar circumstances." When a person drives a car in such a manner that causes an unreasonable risk of harm (without intending the harm though), that driver is negligent and responsible for any injuries.

Common examples of negligent driving include:

1. Failing to stop for a stop sign
2. Making a left turn without yielding the right of way to oncoming traffic
3. Failing to yield the right of way to a pedestrian on a walkway
3. Failing to keep the car under control because of excessive speed in bad weather.

Although the above list is certainly not all inclusive, most people who cause automobile accidents do so, not out of a desire to hurt someone, but because they are preoccupied (cell phone) or are simply driving in a careless manner.

Outside of conducting an extensive interview of the potential client, police reports, video surveillance tapes, witness statements and black box data (late model cars) are all invaluable sources of information.

In Wisconsin, if the injured person is 51% or more at fault for the accident, that person cannot recover compensation. If the injured person is 50% or less at fault, than compensation can be recovered, minus any comparative negligence. For example, if the injured person is 40% at fault for the accident, than that person's compensation is reduced by 40%. In today's economic climate, insurance companies are increasingly arguing for greater reductions based upon the negligence of the injured person; the assistance of an experienced personal injury lawyer is essential in determining disputed liability cases.

Keeping Your Child Safe While Snowmobiling

2008-12-14T08:41:00.007-06:00

Wisconsin's winter came early this year (as it always does). Driving through the countryside, I couldn't help but notice the snowmobile trails intersecting the roads and fields. I even saw tracks that went over a section of downed barbwire fencing. As with many outdoor activities, snowmobiling can be quite dangerous. Proper equipment, speed control at all times, familiarity with the terrain and sobriety are just some of the basic safety rules not only for snowmobiling, but also many other outdoor activities.

I recently came across an interesting article which addressed a few very simple, common sense rules for snowmobiling with kids. The article is a good read for people who enjoy winter sports with their children.

As a Wisconsin personal injury attorney, some of my most difficult and emotional cases have involved children. If you and your child snowmobile, ski, ride an ATV or engage in other high risk outdoor sports, enjoy the sport, but always use common sense and keep your child safe.

Wisconsin Personal Injury Damages - Pain, Suffering and Disability

2008-12-07T08:53:00.005-06:00

As a trial lawyer, I have often told juries that the law cannot repair or replace an injured back, a permanent disability, a broken bone, other accident related injuries. In most cases, monetary compensation is the only form of legal relief for accident victims. In arriving at the proper amount of monetary compensation, an experienced personal injury lawyer will be able to utilize Wisconsin law for the benefit of the client. Within the context of personal injury claims, monetary compensation is referred to as "damages."

Generally, pain, suffering, disability and disfigurement damages includes any pain, suffering, humiliation, embarrassment and distress, which the injury victim has suffered as a result of the accident. Sometimes the pain is so great that a victim’s ability to enjoy the normal activities of life is diminished, allowing for additional compensation. But unlike a workers’ compensation claim where damages are set by formula and there is no remedy for pain & suffering, there are no formulas in a personal injury cases used to calculated damages for pain & suffering.

If a lawsuit has yet to be filed, the personal injury attorney must convince the insurance adjuster that the injured person deserves compensation for pain & suffering. Likewise, if the case is being argued before a jury, then the lawyer must convince the members of the jury that the plaintiff deserves to be awarded a fair and just amount of damages for pain & suffering. Whether presenting the claim to an insurance adjuster or jury, the personal injury lawyer must have a firm grasp of the client's medical history, a thorough knowledge of the medical procedures, a familiarity with the impact of pain on the client's lifestyle, as well as the experience to present the claim effectively to the insurance adjuster or jury.

Damages in Wisconsin

2008-11-10T22:36:00.009-06:00

This post is the first in a series of comments explaining the concept of "damages" in a personal injury claim. Broadly defined, "damages" is the amount of money provided to someone who has been harmed by the negligence or wrongful act of another. In my personal injury practice, clients often ask what their "case is worth." Sometimes that question is asked early on in the process, other times much later. Regardless, an informed damages calculation requires not only a patient and thorough compilation of medical records and other documents necessary to prove damages, it also requires the assistance of an experienced attorney with a history of successful trial experience.

Items of damages applicable in many Wisconsin personal injury cases include:

Non-economic damages:

Pain and suffering
Permanent injury
Mental trauma and emotional anguish
Loss of enjoyment of life
Functional disability
Loss of consortium

Economic damages:

Past and future medical care
Past and future prescription medication expenses
Loss of income or earnings capacity
Property Damage

I have often explained to clients that in order to place a proper valuation on a personal injury claim, after the client is done treating for his/her injuries, all medical records and supporting document must be compiled and carefully examined. To ask an experienced lawyer to place a value on a claim without fully "documenting the injuries" is akin to asking a building contractor to bid on a house without first reviewing the blueprints.

My next blog entry will discuss non-economic damages.

Exercising Caution in a Construction Zone

2008-11-01T21:23:00.003-05:00

I recently came across a tragic story of what can happen when motorists do not exercise caution while driving in a construction zone. A man was severely injured and his father killed when their SUV was crushed between two semi-trucks. Evidently, the first semi-truck came to a stop for a flagman along Highway 11. The SUV was slowing or actually came to a stop behind the first semi-truck, when a second semi-truck struck it from behind, forcing it under the first truck. The crash remains under investigation.

It is said that in Wisconsin, we have two seasons: winter and construction season. As with winter, Wisconsin drivers cannot avoid the construction season. Not only are traffic fines greatly increased for construction zone violations, but unless drivers slow down, follow posted speed limits and drive with utmost caution, the good men and women working hard to maintain our roads and other drivers, such as the individuals in the SUV, are put at serious risk of harm. Remember that while driving through a construction zone, slow down, keep a vigilant lookout and allow for more space between your vehicle and the car in front of you.

Wisconsin Drunk Driving Injuries

2008-10-30T19:28:00.004-05:00

Recently, the Milwaukee Journal Sentinel had run a five-part series on the drinking culture in Wisconsin and the tragic impact of driving under the influence of alcohol on its citizens.

Wisconsin is known, among other things, for its cheese, football and beer. Not to be glib, but our culture is one that embraces alcohol consumption, and consequently, many tragic consequences flow from it.

In my practice, I have successfully represented many innocent people who were injured by drunk drivers.

What struck me while reading the Milwaukee Journal Sentinel series was the sheer variety of individuals who made the impaired decision to operate a vehicle after having a few drinks.
In an October 23, 2008 posting at http://www.jsonline.com/news/wisconsin/32637609.html, Rick Romell and Grant Smith cited the following:

"From 2003 through 2007, drunken-driving accidents along the road claimed 37 lives.

Most occurred with little notice - except from grieving relatives and friends. But in a state where more than 300 people a year die in drunk driving accidents, their stories outline the dimensions of a problem that spreads across Wisconsin.

Most of those killed were the drunken drivers themselves.

But there was also Marion Horton, a grandmother who worked as a nurse and collected Santa Clauses, hit by a man who crossed the median in Winnebago County, striking her car head-on.

There was an honor-roll high school student and his two cousins, all of them respected young men in Milwaukee's Hmong community, all victims of a driver whose blood-alcohol level was three times the allowed limit when he sped through a red light on the city's northwest side.

And there was an aspiring law student who counseled young people about underage drinking, killed in a crash involving a man who had taken advantage of an Appleton tavern's $5 all-you-can-drink offer."

All too often, the victims "go unnoticed." What is the solution to Wisconsin's drunken driving epidemic? Stiffer criminal penalties? Lawsuits in civil court seeking compensatory and punitive damages?

Recently, the Wisconsin Supreme Court upheld a large punitive damage award against a five-time convicted drunk driver.

Courts and juries are becoming more and more responsive to arguments that drunk drivers who injure other people deserve to be found liable for punitive damages; damages intended to punish the defendant and deter others in society from engaging in similar drunken conduct.

Outside of a huge cultural shift that has zero tolerance for driving while under the influence of an intoxicant, Wisconsin citizens must exercise their rights in civil courts and personally hold those that harm them while impaired responsible for their actions.