Thousands of pedestrians are injured while trying to cross Wisconsin streets each year. Sadly, many of these accidents are fatal. Driver negligence is the most common cause of these fatal accidents. At the same time, you should not assume that drivers are automatically responsible for any pedestrian death or injury that occurs.
Like most states, Wisconsin follows a “comparative negligence” rule when it comes to personal injury lawsuits. In layperson terms, the law requires a jury to consider the relative fault of both the plaintiff and the defendant in causing the underlying accident. For example, if a car hits a pedestrian, the driver could argue that the pedestrian “suddenly darted out into the street” or engaged in some other behavior that made it impossible for the motorist to avoid the collision.
Wisconsin uses a “modified” rather than a “pure” comparative negligence rule. In a pure comparative fault system, the plaintiff can recover some amount of compensation from a negligent defendant regardless of the plaintiff’s share of the fault. In other words, it is technically possible for the plaintiff to be 99-percent at-fault and still collect 1 percent of their total damages from the defense. Under Wisconsin’s modified rule, however, the plaintiff cannot be more at-fault than the defendant to receive damages. In other words, if a jury finds the defendant’s fault was 51 percent or more, they walk away with nothing. In such a situation, it is imperative to work with a Wisconsin personal injury lawyer.
Wisconsin Court Orders New Trial in Milwaukee Wrongful Death Case
Sometimes juries get it wrong, however, and the judge may intervene. This happened in a recent Wisconsin personal injury case, Estate of Castillo-Rivera v. Brown, which arose from a fatal collision between a pedestrian and a Milwaukee County bus. The accident took place in February 2018.
The facts are relatively straightforward. The victim had taken the bus late one night. He got off at a bus stop near an intersection. The bus driver then proceeded toward this intersection. He waited at a red light. As court records noted, as the driver waited, he “checked his cell phone for a response from his girlfriend about whether she could pick him up after his shift, and he put his phone back in his pocket.” By this point, the traffic signal was now green, and the driver started to make a right turn at the intersection.
Unfortunately, as he did so, the bus struck and killed the victim, who was crossing the street. The victim’s estate subsequently filed a wrongful death claim against the driver, Milwaukee County, and other defendants. The case was tried before a jury.
The jury ultimately returned a verdict holding that the victim’s negligence “was a cause of the accident” and that the driver was “not negligent.” The estate then moved for a new trial “in the interest of justice,” which is permitted under Wisconsin law. The trial court granted the motion. The defense then appealed that ruling to the Wisconsin Court of Appeals, arguing there was no basis for holding a new trial.
The Court of Appeals disagreed, however, and affirmed the trial judge’s decision. The appellate court explained that a judge may grant a motion for a new trial in a personal injury case if “one or more material answers in the verdict are against the great weight and clear preponderance of the evidence.” Essentially, if the jury simply ignored the evidence or reached an illogical conclusion based on the evidence, the trial judge is well within their discretion to order a new trial.
In this case, the main issue was whether or not the bus driver “maintained a proper lookout” for the victim before making his right turn at the intersection. Under Wisconsin law, a driver “must use ordinary care to keep a careful lookout ahead and about him or her for the presence or movement … of pedestrians that may be within or approaching the driver’s course of travel.” Put differently, a driver must exercise ordinary care to avoid hitting a pedestrian by maintaining awareness of anyone who may be in a crosswalk.
As it turned out, there was surveillance video footage introduced at trial that showed the collision between the bus and the victim. The trial judge determined the jury “completely disregard[ed]” this video evidence when it found the bus driver was not negligent in any way. To the contrary, the trial court said the “great weight and clear preponderance of the evidence” from the video footage showed the bus driver “failed to make any reasonable effort during the [15 to 20] second stop period to observe the northeast corner of the intersection.” Had the bus driver kept a proper lookout, he almost certainly would have seen the victim in the intersection.
The Court of Appeals held the trial judge’s assessment was “reasonable” and that the surveillance video footage was a “primary indicator that the jury too narrowly construed [the bus driver’s] duty to maintain a proper lookout.” As such, the trial court acted within its legal discretion to order a new trial.
It is worth noting here that a new jury could still find the victim was partially responsible for the accident. The trial court’s ruling and reliance on the video surveillance footage did not foreclose the possibility that the victim might still share some comparative fault. But the trial court concluded that it was unreasonable for the first jury to find the victim was 100-percent responsible and let the defendants completely off the hook.
Contact A Top Wisconsin Pedestrian Injury Lawyer Today
Even something as seemingly simple as a bus hitting a pedestrian can raise a number of complex legal issues that may require a trial–or multiple trials–to fully resolve. This is why it is essential to work with an experienced Wisconsin pedestrian accident lawyer who can guide you through the process from start to finish. Call Fitzpatrick, Skemp & Butler, LLC, today at (608) 784-4370 or contact us online to request a free consultation and to get the legal help you need from a skilled Wisconsin personal injury attorney.