Who is responsible in accidents involving intoxicated drivers?
In this episode of Groth Gets it! by Groth Law Accident Injury Attorneys, Jon Groth talks with our Clerks, Noel and Sam about different types of negligence and liability. They break down who could be held responsible for an accident involving an intoxicated driver and how compensation may work with similar cases in Wisconsin.
Transcript:
Jon Groth:
Okay, we’re recording. This is exciting. We’re going to talk about boy, lots of stuff today. And you’re already laughing because I asked questions before about different legal terms. And I said wait until you answer, because the faces that I saw had a lot of uncertainty. So let’s get this recorded so we can talk about what the reality of this is.
Jon Groth:
Welcome everybody, hopefully you’re learning something from these recordings. This is, I don’t know what this is, this is just fun. This is just us talking about different things that we hear throughout the weeks here at Groth Law Firm.
Jon Groth:
What we talked about a couple days ago was passengers who get into cars, and can those passengers be negligent? Most of the time, I would say no, but what’s the term we were talking about? Sam, I’m looking at you.
Sam:
Contributory negligence.
Jon Groth:
Okay. And then I said, how does that, what’s the interplay with joint and several liability? And then Noel said she thinks she knows what that is. What’s the interplay, or do you want to do the definition?
Noel:
I will do the definition.
Jon Groth:
Okay.
Noel:
Okay. I think, I’m certain actually, that jointly versus severally means that it’s not necessarily brought under the same charge, but how much amount they’re liable for a certain crime. And they can either be brought together jointly as the same party, or brought against separately if there’s different amounts of liability, depending on the charge.
Jon Groth:
Okay. So there was some good stuff in there, and there was some not so accurate stuff in there.
Noel:
Okay.
Jon Groth:
It’s all good, because you put yourself out there, so fantastic. But I’m talking about civil law so the criminal and the charges I would say wouldn’t exactly be accurate.
Noel:
Right.
Jon Groth:
So joint and several, my understanding of it is that if there’s multiple parties that can be responsible. So in this example, you’re in your friend Tina’s car, okay, and you’re the backseat passenger in Tina’s car. And I don’t know, what’s an accurate? A Greyhound bus, are Greyhound buses around anymore, Greyhound buses.
Noel:
Yes.
Jon Groth:
So a commercial vehicle, a Greyhound bus, is driving down the road and they blow a stop sign. And Tina just happens to be coming from Summerfest, which starts this week, and Tina’s very intoxicated. So you’re in the backseat, or the victim is in the backseat. Tina’s intoxicated, she goes through the intersection without a stop sign or stop light, and the Greyhound bus had a stop sign that it drives through negligently, and the two cars collide.
Jon Groth:
If the Greyhound bus is 50% or more, let’s say they’re 51% responsible according to what a jury would say, then they can be responsible for all the damages from, or caused, and all the damages for the victim in the car, okay? But the victim in the car can also get a portion of the damages, the other 49% from Tina, from the driver of the car. So they’re, you can see that they’re jointly and severally liable. Because you can separate the two, or you can get all the damages from that one, because that one party is more than 50% responsible according to what a jury says.
Jon Groth:
Now, if Tina’s 55% responsible and the bus company is 45% responsible, you can only get the damages in that percentage from the bus company. And why is that important? So you can only get 45% from the bus company, you can’t get all the damages that your clients suffered. Why is that important, bus company versus Tina’s insurance?
Noel:
Comes out of different insurances?
Jon Groth:
Yes. And who’s likely to have more insurance?
Noel:
Bus company.
Jon Groth:
The bus company. So that’s when we’re talking about analyzing these cases and trying to figure out who’s responsible. In Wisconsin, the sad fact is you can be, quote unquote, fully covered and only have $25,000 in coverage. So a flight for life charge can be 15 grand, 20 grand. So if, sadly, you’re taken off in a helicopter, that $25,000 is used up by that one medical bill, right? So people often say I’m fully covered, but that’s a really relative term. Because in Wisconsin it’s 25, in Illinois it’s 20, in Minnesota I think it’s 30. That’s what you have to have, at least 20, 25 or $30,000 in coverage and still be considered covered. So that’s why it’s important to have uninsured motorists, underinsured motorists, an umbrella policy, all these different things to protect against there.
Jon Groth:
But that’s why with this Greyhound bus scenario, the Greyhound bus may have a million dollars in coverage. If the backseat passenger is very injured and the bus is only 45% responsible, then you can only get 45% of the damages from the bus company. And you can get all, or 55% or all, from Tina’s insurance. And Tina’s insurance may only have $25,000 in coverage. Yeah?
Noel:
So question, then the victim’s liability? If they’re aware that the driver is drunk, can they still recover that 55% in the hypothetical situation?
Jon Groth:
I think that’s a great question, because then it would go towards, what Sam, what would be the victim’s, what would you say that the victim is what negligent?
Sam:
Contributorily negligence
Jon Groth:
So the victim can be contributorily negligent for getting into a vehicle knowing that it’s an unsafe condition, right? I think it can, it can be a lot of different things. If you get into a vehicle that, you know it’s on fire and it’s going to blow up, well, you shouldn’t get into the vehicle. If you get into a vehicle and you know that the driver, for whatever reason, before you got in the vehicle, the driver… Well, let’s say this, let’s say Summerfest, you go to, is it tonight or tomorrow, or when does it start?
Sam:
It starts tonight.
Jon Groth:
Is it tonight?
Sam:
Tonight.
Jon Groth:
So when’s the big, when are the fireworks, are those tonight?
Noel:
I didn’t know that there were fireworks.
Sam:
I can let you know, I live across the street.
Jon Groth:
Back in the old days, I think it was called the Big Bang, right? Is that tonight?
Sam:
I think it is opening night, or it’s like the first Saturday or something like, so it might be tonight, tomorrow or Saturday.
Jon Groth:
Because before COVID, and before Summerfest changed, like the days, right?
Sam:
Because it used to be two weeks straight.
Jon Groth:
Yeah. So now it’s kind of piecemeal throughout the-
Sam:
It’s Thursday, Friday, Saturday, Thursday, Friday, Saturday, Thursday, Friday, Saturday.
Jon Groth:
Yeah. So when is the big firework display going to be? Because it’s not the 4th of July. Well, it, in addition to the 4th of July,
Noel:
I bet it’s tonight, it’s opening.
Sam:
Or maybe tomorrow, because it’s a Thursday.
Noel:
Oh, true.
Jon Groth:
I don’t know, lots of questions. And you know what, we’re going to get off this recording and Google it and like, oh my gosh, why don’t we say that? All right, so you’re at Summerfest and everybody’s drinking their Leinenkugel’s.
Sam:
Summer Shandy.
Jon Groth:
Summery Shandy.
Noel:
Summer Shandy.
Jon Groth:
Leinenkugel’s, Berryweiss.
Noel:
Yes.
Jon Groth:
Or whatever they’re drinking.
Jon Groth:
All night and everybody is intoxicated, and they all pile into a car. And the driver’s, they all know that, because they’ve been with the driver the whole time. They all know that they shouldn’t have got in the car. That, I think, is the problem. And there’s actually a jury instruction on that, if I can find it. And this is where I have an unfair advantage, I apologize that I have this in front of me.
Jon Groth:
So it says, however, if the driver during operation of the vehicle subjects the passenger to an unreasonable risk of injury and the passenger knows or in the exercise of ordinary care ought to know that the passenger is being exposed to such danger, it then becomes the passenger’s duty to use ordinary care for his or her own protection by taking such action open to him or her, making such protest as a person of ordinary intelligence and prudence would take or make, under the same or similar circumstances.
Jon Groth:
So I think if you are getting into a car and you’re sober, and the driver of the car is intoxicated, that’s one thing. But how do you know the driver’s intoxicated? What if the driver blows 0.07, are they intoxicated enough? Well, by the law, they’re not, but should they have known? I mean, we don’t really have to worry about the 0.07, .08, .092, or whatever else it’s going to be for civil law. It certainly applies, but I think you can make the argument that different blood alcohol content levels are going to affect different people differently.
Jon Groth:
So I can certainly see a defense attorney, or any insurance company, saying that we’re going to reduce your damages, victim, because you should have known. And that’s where you need an attorney to look at this and then understand what this means and how it’s been applied in other cases to reduce what your contributory negligence is in that scenario.
Jon Groth:
So how would that work then, Sam? If an insurance company says, hey, you were the victim of a car crash. You’re a passenger, but you knew the driver was responsible. We’re going to say you’re a 50% contributorily negligent. What does that matter, how does that affect the victim?
Sam:
Well, then they can only recover for whatever percentage that they aren’t. So if it’s like 20%, you can only get 80% from the other party. And I think in Wisconsin it’s, if you’re 50 or above that you can’t get anything then, or is it 49.9?
Jon Groth:
So if you’re more responsible than the other party, then you can’t recover?
Sam:
That’s right, yeah.
Jon Groth:
But if you’re less responsible, even by that .001%, then you can recover, but only the damages, well, only the percentage of what responsibility the at fault party is?
Sam:
Less your own percentage essentially.
Jon Groth:
Correct, yeah. So if it’s a 75/25 split, the driver is 75% responsible and you as the passenger are 25% responsible, in theory you can recover 75% from the driver’s insurance. And that’s, I think, what we talk about all the time in our meetings, right? When we have these new client meetings and we have somebody who comes to us, and a terrible point in their life where they are involved in a car accident. And the insurance company says, hey, we think you’re responsible.
Jon Groth:
Well, do we think the insurance company’s being honest? Do we think that they’re looking at the situation in a way that a jury would look at the situation based on our experience? And is it something that we think we can help them by showing the insurance company that the insurance company’s wrong? And how should I ask this question, I don’t want to be too insulting to insurance companies. But in my mind how often are insurance companies wrong?
Sam:
Most of the time.
Jon Groth:
Most of the time?
Noel:
95%.
Jon Groth:
I think both of those are accurate. Yeah. Well, because that’s really their, the way that they make money, right? They’re going to take in as much as they can in premiums, and they’re going to pay out as little as possible. So it makes sense, I can’t fault them for it because that’s just, that’s the economics of it.
Noel:
So have you ever worked on a case where, say that there’s the drunk driver and a sober passenger, and the passenger is injured? Do they compare the liability between the driver and, back to the Greyhound situation, separately? So say, yes, they got in the car, they’re 50% and they can’t recover from the driver. Can they still recover from the bus company?
Jon Groth:
So, what are the various percentages? Say it again, sorry.
Sam:
So say they find that they can’t recover anything from the driver because she got in the car, knew that she was drunk. So 50%, she can’t recover anything from the driver. But the bus still ran the stop sign, so I would say 100%?
Jon Groth:
So, that’s a good question. So there would be, ultimately at trial there’s a thing called the special verdict and that’s what the jury is given. And it has various questions. The first question is, was defendant A negligent? And then the second question is, was defendant A’s negligence a cause of the injuries or a cause of the crash? And then they go to defendant B, was defendant B negligent, was their negligence a cause of the crash? And not the cause, a cause, because you can have multiple causes.
Jon Groth:
And then it’ll go to, well, it can be the victim. Was the victim’s negligence, or was the victim negligent? Was that negligence a cause of the crash? And then the next question is, if you found question one, two or three, yes, then answer the following questions. And then it’ll have defendant A, blank line, defendant B, blank line, and the victim, blank line. And then underneath that 100%.
Jon Groth:
So the jury is going to be charged with the responsibility of assigning a percentage to the various parties that has to equal a hundred percent. So it could be, yeah, 99% on the bus, 1% on the victim for getting in the car, and zero on the driver. I don’t know why that would ever be, but you know, a zero on the driver because the driver didn’t do anything wrong in this scenario, the bus blew the stop sign. But our passenger was responsible because they didn’t use their ordinary care in getting in a car with a drunk driver. So maybe that’s a scenario. I don’t think an 99/1 would be the split, but that’s ultimately what would be asked of a jury to kind of figure out who’s responsible for what.
Noel:
Okay.
Jon Groth:
Yeah. Interesting, interesting stuff.
Jon Groth:
Cool. Thank you very much. So this is a lot of talk about comparative negligence, contributory negligence, joint and several responsibility, joint and several liability. What else did we talk about? Unreasonable risks and ordinary care, and all those legalese things. Just a matter of did you do the right thing, and are you going to be able to be compensated from the insurance company? Whether the insurance company wants to do the right thing by its pocket book, which is going to be opposite of what doing the right thing for the injured victim is. And that’s why we’re here. That’s why we can provide a service to people and hopefully help them through these stressful times. So I appreciate it.
Jon Groth:
Thank you. Great questions, always good to talk to you. And we’ll hopefully get to talk next time. So what should we talk about next time?
Sam:
Well.
Noel:
Who’s to say what’s going to happen, [inaudible 00:16:28] what’s going to happen in the next week where we could?
Jon Groth:
Is there anything in the paper? There’s no big Amber Heard/Johnny Depp trials to talk about.
Noel:
There was the, a lot of defamation cases in general, I guess. And celebrities, but I don’t think that’s very relatable.
Jon Groth:
It’s interesting, but I don’t know how relatable it is to Wisconsin victims.
Noel:
Yeah.
Jon Groth:
Yes, sir?
Sam:
Who gets in trouble if you get hurt at a concert at Summerfest? Is it the grounds, is it the person, is it the person that did it?
Jon Groth:
Injuredatsummerfest.com, go to that website. I think it’s injuredatsummerfest.com.
Noel:
Oh, there’s an actual website?
Sam:
Oh, there is?
Jon Groth:
Yeah. Let’s see. That’s a great question. Great question, that’s a good one, yeah. We should do something like that. Fantastic, thank you. Talk to you soon. Let’s see.
Jon Groth:
There we go.