In a Wisconsin bicycle injury case several years ago, a man was biking in the town of Geneva, Wisconsin. He was crossing an intersection and struck by a car. The bicyclist sued the driver who hit him and another driver who he said proceeded through the intersection before the accident and almost hit him. The parties involved disputed how the accident happened and the plaintiff bicyclist and the defense had accident reconstructionists to testify about the cause of the accident.
The jury apportioned negligence at 25% to the first driver, 25% to the second driver, and 50% to the bicyclist. Due to the apportionment of negligence, the bicyclist did not recover any damages even though the jury awarded substantial damages to the bicyclist and his family.
See Wis. Stat. 895.045:
(1) Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.
The bicyclist appealed claiming jury misconduct. It turned out that one juror had visited the scene of the accident before the matter had concluded and told other jurors that the bicyclist could have avoided the accident. Other instances of alleged jury misconduct were: (1) a statement by a juror that she had Allstate Insurance and did not want her insurance premium increasing due to a large verdict; (2) a statement by another juror, a drivers' education instructor, regarding the "law" on apportioning negligence; and (3) the statement of another juror that if 50% negligence was attributed to Lantz, he would receive 50% of the damages awarded.
In the end, the Wisconsin Court of Appeals did not agree with the defense that since the jurors were dining on pizza at the time the juror made his comments about visiting the accident scene that it was harmless.
The court remanded the case for a new trial.
Posted by Attorney Clayton Griessmeyer-Wisconsin Bicycle Accident Lawyer