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Sam
Sam, Attorney at Law
Category: Legal
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Experience:  More than 20 years of experience practicing law.
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Hi, my son (11) was outside playing with a stick, swinging

Customer Question

Hi, my son (11) was outside playing with a stick, swinging it around and it struck a boy (12) who was running behind my son. He was hit in the mouth and needs dental work. I tried to work with the mother to pay a partial amount for his bills, i agreed to pay a third of it. But she won't provide an EOB. She is just showing me a past due amount and demanding I pay all of it. I thought we had an agreement but now she is saying she is going to sue me. Will a court hold me responsible for the whole amount, partial, or any of it?
Submitted: 6 years ago.
Category: Legal
Expert:  Sam replied 6 years ago.
Chat Conversation Started
Sam :

Hi

JACUSTOMER-vo3w0ohk- : Hello
Sam :

Wisconsin is a "comparative negligence" state - please be patient while I type to explain what this means to your scenario

Sam :

This means, Wisconsin has a 51% rule. With that being said, if you can prove that the injured party was 51% or more at fault, then he cannot recover at all


 

Sam :

But if he is 50% or less at fault, then he can recover but recovery would be reduced base on the level or degree of fault as determined by a court or jury

JACUSTOMER-vo3w0ohk- : Both of us did not witness this accident, so how can fault be determined?
Sam :

Did anyone witness it?

Sam :

If not, then it would be based on what the children say happened

Sam :

Here is the Wisconsin law on the matter under

Sam :

895.045(1)
(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.

JACUSTOMER-vo3w0ohk- : Some other children. No adults. The boys gave the same account. My son was play fighting and the other boy ran behind him.
Sam :

Well, I am not a jury or court. So I am not in a position to discern how much fault. But I believe if you bring this to the attention of the Mother

Sam :

and let her decide if she feels she could win anything since her 12 year old son ran near a swinging bat

Sam :

Unless you child was chasing him down with the bat, you see

JACUSTOMER-vo3w0ohk- : Yes, I see.
Sam :
Sam :

The question becomes would a normal 12 year old boy run near a swinging bat?

JACUSTOMER-vo3w0ohk- : Sure thing. I appreciate the information you have given. Thank you.
Sam :

You're welcome. And best to all of you in this matter

JACUSTOMER-vo3w0ohk- : Well, that was kind of my question, but she is very emotional and can't reason with me.
JACUSTOMER-vo3w0ohk- : Thank you again.
Sam :

I am sure she is, as any parent would be. So, you might want to consult with a local attorney who can explain the law to her


 


 

Sam :

and then see if she is willing to accept the offer you have made

Sam :

You're welcome.




Sam :

I am going to switch to the Q&A format, as it might be a little easier for you to handle. Seems you are in and out of chat. We can continue there.

Sam and 7 other Legal Specialists are ready to help you
Expert:  Sam replied 6 years ago.

Hi

 

Thank you for the accept. If you have further questions, you can post here.

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