What happens to a person riding a bicycle or person walking if they are partially at fault for a crash in Wisconsin?Posted on
Thanks for this guest post by Clayton Griessmeyer, Bicycle Injury Lawyer and a member of the Board of Directors for the Wisconsin Bike Fed
Getting hit by a car while bicycling, walking, or jogging often results in out of pocket losses. These may include things like a deductible for medical insurance, medical bills, loss of money from missing work, prescription medication charges, broken bicycle, loss of future wages, cost of future surgery, having to hire a person to do something normally handled by the injured person, and many others.
Sometimes, when a person riding a bicycle or person walking or jogging gets hit, they want someone to pay them for the above losses. Some people, who are seriously injured, also seek payment for things like not being able to pick up or hold their baby, having to miss an Ironman after paying the registration fee and spending a year training, missing out on an entire race season, losing fitness, gaining weight, having to work in pain, not being able to have sex with a partner, inability to sleep, PTSD, fear of bicycling, constant daily pain, headaches 10 of 10, and other similar problems. This is sometimes referred to as pain and suffering.
In Wisconsin, when a person gets injured, they usually try to come to some agreement with an insurance company for the above losses. If the insurance company blames them, or refuses to pay them anything, the person can choose to forget about everything and move on with life, or the person can sue the insurance company, and or driver who hurt them.
If the person sues the insurance company, it starts a formal legal process involving a judge, and can take anywhere from days, to several years from start to finish. In Wisconsin, the median age at the end of a civil injury auto case was 389 days in 2015. Approximately 97% of Wisconsin civil lawsuits involving personal injury from autos resolve before a trial. If the case does not settle, at some point there will be a trial with a judge or jury where the injured person has to prove the driver did something unreasonable, and must also prove his or her losses.
The jury listens to both sides witnesses and determines who was at fault and how much money to make up for the losses. In our State, the jury must determine a monetary amount (this amount can be $0.00 if the jury wants) no matter what they decide regarding fault. Some cases have caps on how much the jury can include. Example, lawmakers in Wisconsin have determined that even though there is a 7th Amendment Constitutional Right to have a jury decide the amount of damages, (this right has existed since the year 1791), when a person riding a bicycle or person walking or jogging is killed by a driver, the absolute highest amount of money the State allows a jury to give to the spouse, children or parents of an adult for loss of society and companionship is $350,000, and $500,000 if the deceased is a child. I wonder if the lawmakers would trade their spouse or child for this amount and feel it is fair, or if they would prefer to have a jury decide what is fair after hearing about the case? It doesn’t seem fair that there is no minimum, but there is a clear maximum.
Regarding fault, a jury determines who was at fault, and what percentage fault. For example, in a case involving one person driving a car and one person riding a bicycle the jury determines whether each person was negligent (yes or no), whether the negligence was “a” cause of the crash, and if they say yes to both of those, then the jury determines what percentage each person was at fault.
The important part for people who are injured is this: If you are 51% or more at fault as determined by a judge or jury at trial, then you lose, you get no money, and you have to pay the costs of the other side. Bring this fact up to all your friends who tell you Wisconsin needs “tort reform” and lawsuits are out of control. If you are 50% or less at fault, you win, but the amount of money the jury puts on the verdict is reduced by the percentage you were found at fault. Example, jury verdict $100,000 and person riding a bicycle is 20% at fault. The person riding a bicycle gets $80,000 not $100,000.
Another important fact. What the insurance company says, and what a police officer says regarding fault does not matter. Citations and lack of citations do not matter either. The judge or jury determines fault, not a police officer or insurance adjuster. This is why it is very frustrating to read news articles that claim things like, “bicyclist failed to yield the right of way,” or “police investigation clears driver of any fault.” Note also that the common saying that a person is 15% at fault for “being there,” is a lie likely created by insurance companies in an effort to get jurors to assign an injured person 15% fault even if they did nothing wrong. This would save the insurance company 15% off the verdict.
I represented a person riding a bicycle at a jury trial where the police officers cited the person riding the bicycle for sudden movement into traffic when a 16 year old texting driver struck him from behind. Photos taken by the police showed skid/tire marks from the car going from outside the bike lane into/inside the bike lane where the person riding the bicycle was riding. The police testified at trial that they had never heard of a three foot law even though Wisconsin has one. At trial, the jury found the person driving the car 80% at fault and the person riding the bicycle 20% at fault. This is an example showing police officer and insurance adjuster opinion of fault does not matter if you are willing to try the case.
Recently, the District of Columbia created the “Motor Vehicle Collision Recovery Act.” This is an interesting new law because it is written specifically for people riding bicycles, people walking, and other non-motorized users. D.C. used to have a law that said if a judge or jury found an injured person even one percent at fault, they would get nothing. The new law goes to the other extreme. The law says that even if an person injured while riding a bicycle or walking or jogging is partially at fault, they get full damages unless they are 51% or more at fault. Thus, using the example above, if a person riding a bicycle in D.C. got hurt and went to trial and a jury found the person riding the bicycle 20% at fault and the verdict was $100,000, the person riding the bicycle would get the full $100,000, there would be no reduction to $80,000 as there is in Wisconsin.
The D.C. Mayor, Muriel Bowser, had this to say about the new act, “Our streets are made for everyone,” “the Motor Vehicle Collision Recovery Act of 2016 sends a strong message that pedestrians and cyclists are welcome in the District. This legislation gives much-needed legal protection to more commuters and brings more quality to the streets of DC.”
Although the D.C. law is great for people injured while bicycling and walking or jogging, I don’t think there is a chance of a similar law passing in Wisconsin. Further, since the law applies after someone is injured or killed, I don’t see a deterrence value to it. In my opinion, the most important thing we can do in WI is create a new law that gets rid of phone use behind the wheel. Many friends of mine who have biked for 50+ years/their entire lives don’t want to ride roads anymore because of phone use behind the wheel. I have seen a drastic increase in the number of people riding bicycles getting struck from behind compared with 5-7 years ago. We need something that actually prevents people from using phones, not a useless paper law that does nothing like we have now.
My suggestion: A $1,000 fine if you are touching a phone while the car is moving. To enforce this, $500 of the fine goes to any person who photographs/documents someone touching a phone behind the wheel. This means you have regular people riding shotgun while a friend drives and getting paid $500 to take pictures of people using phone behind the wheel and the license plate. It also means every single driver will be sitting behind the wheel and thinking, I would love to check my email right now, but if that person next to me photos me it will cost me $1,000. It would be super easy to enforce also just like red light traffic cams.
In sum, Wisconsin’s current law states that a person who is injured and goes to trial will have their recovery reduced by the percentage the judge or jury determines they were at fault. If the injured person (plaintiff) is 51% or more at fault at trial, it means they lose and get $0.00, and have to pay costs to the defense. It will be interesting to monitor the D.C. law to see if it makes the roads safer for people riding bicycles and people walking or jogging, or leads to other positive change.