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Automobile Collisions / Workers' Compensation

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Immunity law prevents Wisconsin victim from making claim

Waukesha County and Milwaukee officials were among lawmakers looking to save about $1 million a decade with the pothole liability law. The savings equal the approximate amount shelled out statewide over 10 years for damage caused to individuals and property by defective roads.

A 51-year-old Fall River man was injured in an auto accident while driving on a Madison highway last spring. The driver was struck on the head by a large piece of concrete that flew through the front windshield - a potentially fatal car accident.

The victim suffered a fractured skull but drove about 20 miles to a hospital. A titanium plate was implanted. Vision in one eye was lost. The man is plagued by facial numbness, a shoulder problem and emotional issues.

The driver collects disability benefits, but the pothole liability law prevents the victim from claiming up to $50,000 in damages. Local governments are liability-free for harm connected to defective roads.

There is one way for the victim to file and win a claim in civil court. The plaintiff must prove that the government shunned its ministerial duty or neglected to act upon a known roadway hazard.

The victim's attorney said the road where the accident occurred was obviously "defective" with pieces of concrete strewn across the highway in several places. Despite evidence, the immunity provision presents a legal obstacle that is rarely circumvented.

The government would have to be guilty of egregious negligence for the immunity provision to be set aside in court. The driver may have been the only person who knew what happened on the day the accident occurred. There is no report that the victim contacted police or stopped at the time of the injury.

The liability law may save Wisconsin taxpayers $50,000. The limitations of the law keep injury victims from seeking compensation for harm as they would have the right to do against non-government defendants.

Source: wiscnews.com, "Man suffers after odd accident; Fall River resident has little legal recourse after concrete fell from bridge and hit him," Jessica Vanegeren, Jan. 27, 2013

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