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  • June 21, 2017

    Case Maker or Case Breaker? Find Out Quickly with The Law of Damages in Wisconsin

    Learn quickly which details matter most when evaluating the viability of potential litigation with PINNACLE’s newly revised The Law of Damages in Wisconsin.

    June 21, 2017 – It’s summertime, and the living is easy: the open road, the swimming pool, the overgrown lawn (OK, maybe not that last one) beckon. Travel, recreational activities, and outdoor work, however, also can result in accidents and injuries.

    Some folks who were joyful when June finally arrived might appear dolefully in your office months later, seeking to recover damages for their or family members’ injuries.

    But why do some personal injury cases end with “Thank you, members of the jury,” while others (begin and) end with, “Sorry, I don’t think you have a winnable case”?

    The newly revised seventh edition of The Law of Damages in Wisconsin, from State Bar of Wisconsin PINNACLE®, helps tell the difference, by identifying ways in which the Wisconsin Legislature and Wisconsin courts have barred or limited suit in certain situations, against certain individuals or entities, or above certain dollar amounts.

    Contributory Negligence Can Reduce Available Damages

    Here’s an example: Two automobiles collide and a motorcycle runs into one of the cars. Car driver A was at fault; car driver B was not wearing a seat belt and incurred serious injuries; motorcycle operator C, who was not wearing a helmet, also was severely injured. B’s and C’s medical costs exceed the available insurance.

    Will B’s failure to wear a seatbelt and C’s lack of a helmet at the time of the collision affect the availability of damages?

    According to Chapter 31 (Contributory Negligence), “[b]ecause the stated purpose of making seatbelt use mandatory was ‘to promote the safety of the traveling public,’ … it is likely that Wis. Stat. section 347.48 will be considered to be a safety statute and that, as a result, the failure to wear seat belts will be found to be negligence per se.”

    In contrast, the Chapter 31 authors point out, Wis. Stat. section 895.049 states that “the failure to use protective headgear by operators or passengers on motorcycles, ATVs, snowmobiles, or utility terrain vehicles will not reduce the operator’s or passenger’s recovery for injuries or damages in any civil action.” So B’s recovery might be limited, but C’s will not.

    A Defendant Might Have Immunity

    Even when injury victims are blameless, characteristics of the defendant might limit suit or recovery.

    Think about swimmer D, who was in a pool at the same time as a dirty diaper. D became ill but because he left the pool before it was evacuated, neither he nor his physician put two and H2O together, and his ailment initially was misdiagnosed. He spent several weeks in the hospital before dying of complications. D’s spouse wonders if she can sue the physician, the pool operators, or both.

    The answer is “maybe, but. …” Chapter 16 (Wrongful Death) explains that the Wisconsin statutes cap damages in wrongful death cases. “The wrongful death cap [$350,000 in cases involving the death of an adult] applies to a claimant’s noneconomic damages for post-death loss of society and companionship in medical malpractice actions.”

    The chapter also notes that all medical malpractice litigants must comply with Wis. Stat. Chapter 655 (health care liability and injured patients and families’ compensation), which imposes significant procedural hurdles.

    As for the pool operators, a preliminary issue is who they are. If the pool is owned and operated by a municipality, governmental immunity under Wis. Stat. section 893.80(4) might bar the family’s claim.

    Even if the suit is not foreclosed, the statutes cap damages. According to Chapter 16, “[i]n wrongful death claims against local governmental entities, the court has determined that, while Wis. Stat. section 893.80(3) allows each member of an entitled class to recover damages up to the statutory limit, the aggregate damages in an action brought under Wis. Stat. section 895.04 for the loss of the decedent’s society and companionship may not exceed the statutory limit, no matter how many individuals comprise the entitled class.” If the pool is privately owned, governmental immunity will not bar the suit.

    Egregious Misbehavior Does Not Necessarily Lead to High Damages Awards

    Some situations in which harm is severe, foul is obvious, or both seem to cry out for greater penalties against the tortfeasor.

    For example, a potential client tells you her foot was permanently damaged when the lawn tractor she was using continued moving after it tipped over because it lacked one of several common safety switches. A jury might be inclined to award the victim punitive damages.

    But, as the authors of Chapter 4 (Punitive Damages) explain, the Wisconsin Legislature has amended the statutes to limit such damages. Wis. Stat. section 895.043(6) now provides that, “Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater.” The costs of proving negligence will need to be weighed very carefully against the available damages, particularly if the victim has already been made whole for her injuries.

    Three Volumes, Thousands of Case Law and Statutory Citations

    The book’s 41 chapters, packed with thousands of case law and statutory citations, tell nearly everything you need to know to accurately evaluate a case involving damages and to successfully represent a plaintiff or a defendant once the decision is made to proceed.

    The three volumes cover the full range of potential damages, including compensatory and punitive damages, damages for bodily and personal injuries, damages for injuries to property and contractual rights, and third-party damages.

    You’ll learn how to effectively meet evidentiary burdens; analyze the effects of contributory negligence; plan for taxation of damages awards; calculate interest, costs, and attorney fees; and protect your client’s interests in cases involving subrogation.

    How to Order

    The Law of Damages in Wisconsin is available both in print and online via Books UnBound®, the State Bar’s interactive online library. The print book costs $219 for members and $269 for nonmembers.

    Annual subscriptions to Books UnBound start at $159 per title (single-user price, call for full-library and law-firm pricing). Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price.

    For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.

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