In talking to clients and prospective clients I often hear them remark that anyone involved in an accident is negligent “just for being there”. That is a myth, an urban legend, and something the insurance companies would like you to believe.
If an insurance company wants to establish that an injured person was contributory negligent, the insurance company has the same burden of proof that an injured party bears in establishing liability on another driver. The insurance company needs to establish that a claimant failed to exercise “ordinary care” for his or her own safety.
There is a pattern jury instruction that spells out an insurance company’s obligation to prove contributory negligence. This instruction, with appropriate modification for the facts of the case, is typically read to the jury:
Every person in all situations has a duty to exercise ordinary care for his or her own safety. This does not mean that a person is required at all hazards to avoid injury; a person must, however, exercise ordinary care to take precautions to avoid injury to himself or herself.
Additional or Optional Paragraphs
(A person must exercise ordinary care to employ (his) (her) senses of sight and hearing so as to become aware of the existence of danger to (him) (her). A failure to do so is negligence.)
(It is the duty of every person to exercise ordinary care to recognize and appreciate all dangers that are open and obvious to (him) (her) or which should have been recognized and appreciated by a reasonably prudent person under the same or similar circumstances. That the warning of the existence of danger was not seen or was not heard does not free one from negligence. In addition, one who looks and fails to see, or listens and fails to hear, a warning of danger which under like or similar circumstances would have been seen or heard by a reasonably prudent person is as guilty of negligence as one who did not look or listen at all.)
(However, a person is not bound to see every hazard or danger in his or her pathway even though they should be plainly observable or to remember the existence of every condition of which the person has had knowledge. A person is only required to act as a reasonably prudent person would act under the same or similar circumstances.)
(To be free of negligence, a person must exercise ordinary care in choosing his or her course of conduct and in the pursuit of that choice. A person is not guilty of negligence in making a choice of conduct if the person has no knowledge that one course of conduct carries a greater hazard than another, provided that such lack of knowledge is not the result of the person's failure to exercise ordinary care.)
In a typical auto accident case, the rules of the road spell out what is expected of drivers. Failure to abide by the rules of the road is failing to exercise ordinary care, and is negligence. The rules of the road are spelled out in the statutes. They include the responsibility to:
• Maintain the vehicle and equipment properly, especially when it comes to brakes, tires, and headlights;
• Maintain a proper lookout;
• Yield the right of way as required at crossings and intersections;
• Maintain proper management and control of your vehicle;
• Maintain a proper speed, taking into consideration the applicable speed limit, as well as existing conditions; and
• Stopping as required by conditions or traffic controls.
These are just a sampling of the Wisconsin “rules of the road”. A further explanation can be found at http://www.dot.wisconsin.gov/safety/motorist/rules/overview.htm The full text of the “rules of the road” from the original statutes can be found at http://docs.legis.wisconsin.gov/statutes/statutes/346.pdf
The bottom line is that a person is not negligent “just for being there”. They can be negligent for not obeying the rules of the road.
