Frequently Asked Questions


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Do I have a good case?

As personal injury lawyers, a question we often receive is "Do I have a good case?" . This is never an easy question to answer. In order to be successful, a personal injury case has to have many facts come together. The facts can be very specific depending on what type of a claim is being pursued. Even in cases where liability is clear (like when a driver runs a red light), a case can fail due to an absence of damages. A case will also fail if there is no insurance or person to collect against. A case can also fail where the responsible entity is immune from liability. As you can see, there are many factors that go into determining whether or not you have a personal injury case that will be successful.

How much is my case worth?

Unfortunately, there is no easy answer to this question.  Any attorney who tells you that the answer to this question is easy is either guessing or simply trying to tell you what you want to hear.  In order to begin an investigation of  a case a lawyer needs to conduct interviews, review accident reports and review medical records.  The lawyer will have to consider facts and circumstances surrounding the case the nature and extent of the injury, the treating physician’s opinions, the loss of wages and any loss of earning potential.  The attorney will also gather medical bills and investigate whether future treatment is warranted.  These items mentioned are often times just a few of the items that an attorney will look into with coming up for a value for you case.

As you can tell from the many variables involved, experienced counsel is a must when hiring a personal injury lawyer.  An experienced personal injury lawyer can investigate the case fully to determine the appropriate value for your case.  Furthermore, you should investigate whether the attorney you are hiring has the trial skills to take the case to a jury trial if needed.  A experienced personal injury attorney can take you through the trial process which is never easy.  However, it is many time necessary to get the full compensation for a case.

Can I collect?

This is a complicated question with many factors. The first thing that has to be assessed is the financial situation of the person that harmed you. The person who harmed you may or may not have sufficient insurance to pay for the damage that has been caused. In an automobile crash, an inquiry is made as to your own insurance as the injured person. There may be insurance coverage from your own policy that may assist you if the at-fault driver had no insurance or insufficient insurance.

If insurance coverage is insufficient, an inquiry may be made about the responsible person’s assets. There are various ways through legal processes to learn about assets. All of them are complex and require a lawyer to assist.

The best way to handle the question of how do I collect is to consult an experienced personal injury lawyer soon after you are injured. The attorney can analyze your situation to determine if their will be problems with collection.




How do I know if I have a claim against someone?

Answer: Unfortunately, injuries can happen to any of us at any time. Sometimes we are injured due to our own carelessness or just because we were in the wrong place at the wrong time. In a circumstance in which you may be injured without someone else "doing something wrong", there may be no legal claim to be made.

On the other hand, sometimes we are injured as the result of the negligence of others. "Negligence" is, essentially, carelessness. A person is negligent if he fails to do something that a reasonably careful person would do in the same circumstances or he does something that a reasonably careful person would not do in the same circumstances. If you have been injured due to the carelessness or negligence of another, you are entitled to be compensated for your injuries.

Who decides which parties were negligent?

A person may be injured by different responsible parties at the same time. An easy example of this is a multiple vehicle crash. An injured person may also be partly responsible for their own injury. Until a case goes to a jury trial or in front of a judge at a court trial, the parties are just predicting what a judge or jury will do at the actual trial. Prior to the time of trial, an attorney relies upon their experience and knowledge in predicting what a judge or jury will do with the case. This is not an exact science. Prior to trial, agreements are sometimes reached where a party will agree or stipulate to liability. In these situations where liability is conceded, the only issue to determine is the amount of damages. In other cases liability is contested and extensive discovery may be conducted by the attorneys in the case to determine who is at fault.

The other driver got a ticket. Does that mean that he was negligent and I am not?

In the State of Wisconsin, the fact that the other driver got a ticket after the car accident does not automatically make the other driver negligent for purposes of a civil case. Police officers are often called to the scene after accidents. Once the officer arrives at the scene they check to make sure the parties receive appropriate medical attention and reroute traffic around the accident scene. The officer will then begin to gather information regarding the accident. As part of the investigation the officer will gather names and addresses and insurance information. The officer may take pictures of the accidents scene. The officer will eventually make an assessment as to the cause of the accident and who is at fault. The officer may issue a ticket if the officer believes that the law has been violated. The initial assessment of the officer as to liability and the issuing of the ticket is simply the judgment of the investigation officer. The officer is not making a determination with respect to negligence or contributory negligence for purposes of a civil case.

Do I have to be completely blameless in order to have a valid claim?

Wisconsin follows the rule of comparative negligence. This means that you can have some fault on yourself and still have a valid claim. To be successful, an injured party has to prove that the other party was at fault at least as much as the injured party. For example in a two vehicle accident where both drivers are 50% at fault, the injured party making the claim will recover 50% of his her damages.. When multiple parties are involved in the fault, the application of the comparative negligence rule can become extremely complicated and is subject to extended litigation.

In a different scenario, if the injured driver making a claim is 51% or more at fault and the defendant driver is 49% at fault, the injured party making the claim does not make a recovery.

When negligence is apportioned among parties, the apportionment serves to reduce the damages of the injured party by the injured parties percentage of negligence.

When should I contact my own car insurance company following an accident?

A concern that comes up for an injured person after a car accident is when should you contact your own car insurance company. The answer is as soon as is reasonably possible. Your own car insurance will most likely have a duty of cooperation clause. You are under a contractual obligation to provide your own insurance company with accurate and timely information after an accident. Your own insurance company will want to make an assessment of the accident with respect to liability and damages soon after the accident. Your own insurance company may want to send an insurance adjuster out to talk to you about the accident.

As your own insurance company investigates the case, remember that you have the right to be represented by counsel. To be on the safe side, we recommend that if you are involved in an accident you have legal representation to deal with your own insurance company. While you have duty of cooperation with your own insurance company, statements that you make at the outset of a case may later be used against you for various types of coverages available in your own insurance policy.

Should I talk to an insurance adjuster from the other drivers insurance company?

After an accident, it is usual to get contacted by the responsible parties insurance adjuster. The insurance adjuster has the job of gathering information as to how the accident occurred. The insurance adjuster will also make inquiries as to injuries that were sustained in the accident. You should be aware you have no duty or obligation to provide the other parties insurance adjuster with information. We advised our clients not to give any written or recorded statements to the opposing insurance adjuster. We also advise our clients not to provide the opposing insurance company with medical authorizations.

After an accident, you may receive phone calls and letters from an opposing adjuster. We advise our clients not to speak with the opposing adjuster and refer the adjuster to Herrick & Hart, S.C.

Who can I talk to if the other driver was completely at fault?

In the event the other driver was completely at fault we recommend that you still do not talk to the responsible parties insurance adjuster. After an accident, an insurance adjuster has a job to gather information. The insurance adjuster does not have a job of being fair or impartial. Instead, the job of the insurance adjuster is to gather information that is favorable to the company the pays the insurance adjuster. An insurance adjuster for the responsible party may take a statement not for the purpose of being fair or investigating, but simply for the purpose of gathering admissions that can later be used against you in a court proceeding. An insurance adjuster will often times try to interview you soon after the accident. In many instances, the injured person is still in severe pain or dazed while the interview is being conducted. Insurance adjusters then may make a quick settlement offer to dispose of the case even before an injured person knows the full extent of their injuries. The purpose of this quick offer is also to get an injured person to settle quickly before consulting legal counsel. An experienced personal injury attorney can help a person defend themselves from the opposing insurance company.

How and when do I get my car fixed?

Property damage claims are often resolved soon after accidents in cases where fault is clear. In situations where fault is disputed, property damage claims are more likely contested. In situations where fault is contested, the principles of comparative negligence come into play.

If you have collision insurance under your own policy you can turn the claim over to your own insurance company. Your own insurance company can pay you for the damage to your vehicle and then pursue the at-fault driver for the claim. In instances where liability is clear, the at-fault driver’s insurance company may just agree to pay you for the damage to your vehicle after you obtain an estimate. If you are able to have the at-fault party pay without question, this will save you paying your deductible and making a collision claim against your own insurance company.

You should allow insurance adjusters from your own or the at-fault parties insurance company to take pictures of the vehicle if they are requested.

How much should I get for my damaged car?

After a car accident, the amount of damage to your vehicle needs to be determined. This is done through an estimate at a vehicle body shop. If the other driver was entirely at fault, you have the right to either the cost of repair of your vehicle or the fair market value of your vehicle whichever is less. This means that you have the right to have the car repaired to the condition it was in before the accident took place. If the car is not repairable, then you have the right to the fair market value of the car. If the vehicle is “totaled”, that means it would cost more to repair the car than what the car is worth. In the case of a totaled vehicle, there are many websites that allow you to quickly figure out the value of a totaled car. In some instances, more money can be added if recent improvements were made to the car. For example, if a new stereo had been added to the car and completely damaged or if new tires were recently put on and cannot be recovered.

When should I see a doctor?

If you were injured in an accident, you should go immediately to the nearest emergency room to report your injuries. You should be extremely careful if there was any injury to your head. If law enforcement comes to the scene of the accident, they can summon an ambulance to take you to the hospital.

It is very common for someone injured in an accident to not begin to feel substantial pain until hours or days after the accident. When you do begin to feel pain after an accident, you should seek medical advice.

In evaluating a claim after an accident, the insurance company will put focus on the medical treatment. The insurance company will look to see how soon you treated after an accident. Although an injured person may have been in extreme pain and hoping that the pain would go away, an insurance company will use the fact of delayed treatment against the injured person. An insurance adjuster may state that since you did not seek treatment immediately, you must not have been hurting that badly.

To be on the safe side, a good rule of thumb is to always seek medical treatment after an accident.

My doctor wants me to participate in physical therapy and do all kinds of exercises. I don't have time for this and it is a bother. Why should I do this?

It is extremely important that you show up on time for all doctor appointments and religiously follow your doctors orders, whether it is to remain in bed, stay off work, take medication, go to physical therapy, or do exercises. Insurance companies love to see medical records with entries that read "Patient did not show for appointment." Similarly, if you do not participate in physical therapy, do your exercises, etc., the insurance company will argue that the reason you did not improve better or faster is because you failed to follow your doctors orders.

What should I tell my doctor after I am injured in an accident?

After an accident the doctor will ask the injured person about their symptoms and how their symptoms began. The injured person must understand that the doctor will be taking notes. The notes will eventually turn into medical records. Medical records are admissible into evidence under Wisconsin law. Wis Stat. 908.03 (6m) The injured person should do their best to be clear and accurate when explaining the facts of the accident that caused injury. An injured person should take care to be truthful with their doctor. In no way, should a person fake or exaggerate any of their symptoms.

Am I able to treat with a Chiropractor after an accident?

An injured person often seeks chiropractic care after an accident. Our recommendation after a serious accident is that you always seek care first in the emergency room. A good chiropractor who realizes a serious injury will refer you to the emergency room.

Treatment with a chiropractor is a personal choice. A chiropractor’s testimony is admissible at trial in the same way as a doctor’s testimony. Likewise, a chiropractor’s records are admissible at trial as medical records. Ultimately, an injured person wants to seek the care that will get them the best recovery.

Our experience is that health insurance will cover chiropractic care.  The medical payments coverage of an automobile policy can also be applied to chiropractic care. This coverage is subject to the terms and conditions of the respective policies.

Who will pay my medical bills?

The question of medical bills always has to be answered after a car accident involving personal injuries. The at-fault driver’s insurance company will not just pay the bills. As a practical matter, they will not pay the bills until after a settlement is reached or a verdict is returned by a jury. In the meantime, if you do not have sufficient insurance the bills will start to pile up.

In recent years there have been changes to the medical payments coverage limits in the State of Wisconsin. After an accident, you can look to your own insurance policy to check for medical payments coverage. This is coverage that you as the injured person have paid for and is found in your own automobile insurance policy. This coverage can be used to pay for medical expenses related to the car accident.

The other place to look to pay medical bills is your own health insurance. Your own health insurance will process the bills in an ordinary fashion and pay the bills they are required to pay. You may be asked to provide additional information to your health insurance company regarding the circumstances of the accident. Your health insurance company also obtains a right to collect any expenses they have paid out on your behalf. This is called a right of reimbursement or a right of subrogation.

When should I go back to my job?

If you are injured in an accident, you should return to work as soon as your doctors clear you for that activity. We prefer that our clients remain as active as possible and get back to work as soon as they are reasonably able to do so even if only on a part-time basis at the beginning. Of course, this is largely a medical issue and, once again, we recommend that you follow your doctors advice. It is important that you clearly advised your doctor of all of the physical requirements of your job prior to asking him for an opinion about when you are able to return to work.

If you do have to miss work because of accident related injuries, make sure that your employer understands the reason for your absence. It is a good idea for both you and your employer to document all of the time off, wages lost, and benefits lost as a result of your inability to work. For some people who work for a specific rate of pay for a specific number of hours per day, a calculation of lost wages is fairly simple. For others, however, who may work on commission, have flexible hours, or be self-employed, calculation of lost wages is more difficult. All you can do is document any lost income as best you can. This may include keeping track of your own hours and losses, as well as getting statements from prospective customers whose business you lost as a result of your inability to work.

Are there any time limits I have to worry about?

Yes. A typical negligence claim has a three year statute of limitations. This means that you have three years from the date of the accident in which to either settle your claim or begin a lawsuit. Failure to do either of these things would result in a complete loss of your claim and you will never be compensated for your injuries at all.

There are also special statutes of limitations that might apply to specific circumstances. For example, there is different statute of limitations when minors are injured, when medical malpractice may be involved, when the legal theory may be something other than simple negligence, as well as multiple other examples. If you have a claim against a governmental body, there are strict notice requirements that must be complied with to preserve your claim. For these reasons, we always recommend that you seek legal advice and representation as soon after an accidental injury as is practicable.

How can I afford to hire an attorney when I cant even pay my medical bills?

In a personal injury case, it is very typical for an an attorney to offer to represent an injured person on a contingent fee basis. This means that the attorney will work for a percentage of the amount recovered for fees. This allows the attorney to work for the injured person without sending a monthly or quarterly bill to the injured person. A typical contingency fee arrangement will provide that if no recovery is made then no fees are owed to the attorney. A person injured should take note that fees are different than costs. An injured person may still be required to pay costs to the attorney if in the event no recovery is made. The costs are ordinarily the amount the attorney spends out of pocket to prosecute the case. If a recovery is made, then costs are paid out of the proceeds from the recovery. An injured person in a losing case may also be assessed court costs. Court costs are set forth by statute in the State of Wisconsin.

When should I hire a lawyer?

After an injured person is involved in an accident, they have a lot on their mind. Depending on the severity of the accident, their entire life may have to be rearranged. The safest route to take is to contact a lawyer as soon as reasonably possible after the accident. By contacting the lawyer soon after the accident, it is easier to preserve evidence. The lawyer may want to hire reconstruction engineers, investigators or other experts to evaluate the claim. A delay in contacting an attorney may result in the loss of important evidence.

Another reason to contact an attorney soon after being injured is the notice requirements of some statutes. Depending upon the parties involved in causing the injury, notice may have to be given very soon after the damage has occurred. Determining which parties caused an injury can be much more difficult to determine than what it looks like at first glance. An injured person should seek the advice of experienced counsel to determine which parties may be at fault for causing injury.

In choosing a lawyer, you should remember that your initial consultation with Herrick & Hart on a personal injury claim is free. We are willing to sit down with the injured person and explain to them their rights under the law. If you have been injured, you should consider contacting Herrick & Hart. We have been helping injured persons for over 60 years. 



I've just had a car accident. What should I do?

Stop your car in a safe location and do not leave the scene of the accident. The law requires that you identify yourself and render assistance before leaving the scene of an accident. Police must be called if the accident involves injury, death or property damage of $1,000 or more, or $200 of governmental property damage.

Should I get out of my car?

This is a difficult question to answer. After an accident, an injured person needs to use quick judgment to determine whether they should get out of their car. This question often depends on the severity of the injuries and the location of the accident. If you are aware that you are severely injured, the best place to stay is in your car. If you attempt to move, you may do more damage to your injury. There are also situations where people attempt to move and find that they cannot due to damage done to their vehicle. Another complicating factor after a car collision is the amount of traffic in the area of the accident. If you are on a busy road with plenty of traffic, getting out of your vehicle may cause additional danger because you may be hit by another car.

The decision to get out of your car after an accident is often clouded by the fact that you are not thinking clearly at the time. There will be many things racing through your head at that point. You will have many concerns including the severity of your injury, damage to your car and impact of the accident on your family and work.

If you do decide to get out of your car, you should go to a safe area where you will not be hit by traffic. Law enforcement should be contacted.

Should I talk to the other drivers involved in the accident?

A driver involved in an accident must give their name, address, vehicle registration number and show their driver’s license to any of the other individuals involved in the accident. Wisconsin law also requires that vehicles the are driven be insured. A driver should first think of their own safety and their passenger’s safety before exiting the car to talk to any of the other individuals involved in the accident. A driver should not make any statements about fault or causing the accident. The wisest route is to call law enforcement. After law enforcement arrives on the scene, you can explain to them how the accident occurred. Whenever speaking with law enforcement, you should be truthful as to what you remember about how the accident occurred.

Do I really need an ambulance?

If you are severely injured after a car accident, you will have no choice in being transported by ambulance. If you are less severely injured, law enforcement will typically ask an injured person if they wish to be transported by ambulance to the nearest emergency room The best advice is if you have any doubt about the severity of your injuries you should take the ambulance to the hospital. After a car accident, your judgment may be clouded. Even though you may just feel shook up, you may not realize that your head struck something inside the car during the accident. This may cause a concussion or bleed which may be life threatening. The safest course is when in doubt seek immediate medical attention.

What do I do if the other driver threatens to leave the scene or actually does so?

After an accident, you may be confronted with a driver who wishes to leave the accident scene. If the other driver threatens to leave the scene, you should advise them that they may be violating the law and advise them to stay. If the other driver does leave the scene, this is out of your control and you should advise law enforcement of the other driver’s actions after they arrive. Before the other driver leaves the scene you should try to take down as much information as you can. If you are able try to write down the name of the other driver, address, license plate number, make and model of the vehicle and any other information that is available to you. If you are able, gather insurance information from the other driver. After law enforcement reaches the scene, you can share this information with the investigation officer.

Should we move the vehicles involved in the accident before the police arrive?

If you have been involved in a serious crash, the safest place to remain after an accident is in your motor vehicle. If you get out of your vehicle, you risk being struck by other traffic coming by the accident scene. You should also remember that after a serious crash you may not be thinking clearly. By leaving the vehicles in the position they came to after an accident, the officer who arrives on the scene will have a much easier time determining how the accident occurred. The drivers who are party to an accident will often have different versions of how an accident occurred. The resting location of the vehicles may be instructive as to who had the right of way, the speed of the vehicles and many other relevant facts. An investigating officer will want to take pictures of the vehicles at the position they were at when they came to rest after the crash. In some instances the investigating officer will also take measurements of the position of the vehicles. These measurements can later be used to reconstruct the crash. The officer will include the measurements with their report which is required to be filed by Wisconsin statute.




I've been injured in an accident. How much my claim is worth?

This is a question that personal injury lawyers are often asked by their clients. The answer depends upon many factors. Every injury has its own individual characteristics that will impact the value of the claim. An injured person should not assume because their accident happened in certain way or because they have a certain type of injury that the case has a certain value. If there is one guiding principle to keep in mind in valuing a case, it is that every case is different.

Some of the main factors that go into valuing a case are the strength of the liability of the case. This more plainly put is the amount of fault attributable to the responsible party and the weight of proof that can be presented in establishing liability. There a many facts that go into determining liability. Another factor that has a major impact in determining value is the amount of impact that the injury has had on the injured person’s life.

Who determines the value of my claim?

If a case cannot be resolved short of trial, a judge or jury will place a value on your claim. This value is determined after a trial. At the trial, evidence would be presented. The evidence would consist of testimony from witnesses and exhibits presented to the trier of fact. This does not mean that all personal injury cases go to trial. The majority of personal injury cases are settled prior to a trial.

In determining a value for your claim prior to trial, the personal injury attorney will be making reasoned judgments about what a judge or jury may award if the case proceeds to trial. The personal injury attorney will make an assessment about the strength of the liability aspect of the case. The attorney will also make a prediction about the value of the injury side of the case. There are many factors and variables that the attorney will use in trying to project the value of the case.

On the other side, the defendant along with their insurance company will also be weighing the risk of going to trial. Some insurance companies factor in the cost of paying an insurance lawyer to try the case to verdict.

How does anyone put a dollar value on pain and suffering?

This is a question that courts and juries have struggled with for a long time. The jury is instructed by the court before deliberating that pain and suffering damages include the actual physical pain, worry, distress, embarrassment and humiliation which the injured person goes through as a result of the injury. A claim for future pain and suffering is made when an injured person will be damaged into the future.

A jury is told to consider the extent that any injuries have impaired the injured person. The jury is told to consider a injured person’s inability to participate in the normal activities, pleasures and the benefits of life. They also consider the nature of the injuries and the effect produced by the injuries prior to trial and the effect the injuries are reasonably likely to produce in the future bearing in mind the injured person’s age, prior mental and physical condition and probable duration of his or her life.

How long will it take to determine the value of my case?

The single most important factor in determining when your claim may be valued is your medical condition. We always want to conclude your claim as soon as is reasonably possible. We would rather have settlement money in your hands than in the bank account of some insurance company. We must be careful, however, not to settle a case before all of the ramifications of an injury are fully known. Once a case is settled, it is settled. One may not return to an insurance company months after a settlement claiming that the injury was worse than was understood at the time of settlement and ask for more money.

Your attorneys will be very dependent upon you and your doctors to determine when the time is right to begin valuing your claim. Often times, many months go by following an accident before any attempt is made at valuing a claim. This is because the injured party may still be recuperating or recovering from injuries. A case should not be settled until your doctor is able to state what the future probably holds for you. Will there be future medical expenses? Will there be additional surgery? Will there by permanent disability as a result of the injuries? These are all things that your doctor must determine before your attorneys can begin valuing your case.

Will the insurance company pay what we ask?

Each insurance company which insures a Defendant does their own evaluation of a claim. An injured person should keep in mind in dealing with an insurance company that they are profit seeking companies. The insurance companies have investors or stockholders who are concerned about the insurance companies' bottom line. The more money that the insurance company does not have to pay out, the more they can keep for themselves. The Defendant insurance company will also in settling a claim will be seeking to obtain a release. The release will absolve the insurance company from any further liability for the case as well as their insured.

If there are different views as to the value of a case, the great equalizer in the process is a trial. A trial can either be to a judge or jury. Before proceeding to a trial, both the plaintiff and defendant will weigh the strengths and weakness of their case.

Who decides if my case should settle?

An injured person hires a lawyer to assist them in their personal injury case. At the end of the case, an injured person makes the ultimate call if the case should settle. If the case does not settle, a judge or jury will make a decision as to the value of the case. An injured person should keep in mind that the attorney will have experience with the process ofnegotiating a settlement of a personal injury case. An attorney with experience in the personal injury field can help an injured person weigh the strengths and weaknesses of their case. A person injured will never be forced to accept a settlement. Instead, the injured person will always have the option of taking the case to trial if the claim cannot be settled.




What is a product liability claim?

The manufacturer of a product has a duty to produce a product that is safe and will not create an unreasonable risk of injury when used in a foreseeable manner. If you have been injured by a product - anything from farm machinery, to a snow blower to a cigarette lighter - you may have a claim against the product's manufacturer and distributors. Product liability claims can be based on negligence, strict liability, or breach of warranty.

Negligence - A manufacturer must use the same degree of care that a reasonably prudent person in the shoes of a manufacturer would use to insure that the product will not create an unreasonable risk of injury. Among other things, a manufacturer must be careful to design the product so it will be safe and fit for its intended purpose; construct the product so that the materials and workmanship will make the product safe for its intended use; inspect and test the product to determine whether there are defects as to material or workmanship; and give adequate warnings of danger and adequate instruction as to the proper use of the product which is dangerous when used as intended.

Strict liability - Under this theory an injured party is relieved of having to prove specific acts of negligence if he can prove the following elements: (1) that the product was in a defective and unreasonably dangerous condition; (2) that the product was defective when it left the control of the seller; (3) that the defect was a substantial factor in causing the plaintiff's injuries; (4) the seller was in the business of selling such products; and (5) that the product was intended to and did reach the consumer without substantial change.

A product liability claim can be made against the manufacturer, distributor, wholesaler, retailer, and maker of component parts. The product is unreasonably dangerous when it is dangerous beyond what might be expected by the ordinary user. A product may be defective either by reason of manufacture or design if it is unsafe for normal use.

Breach of warranty - Generally, the law imposes certain warranties (or guaranties) on the sale of products. Such warranties include that the goods are in proper condition for use and free of defects and that they are fit for a particular purpose.

Do I have a product liability claim?

This is a difficult question for a lawyer to answer without knowing the facts surrounding the injury. A manufacturer of aproduct has duty to produce a product that is safe for the user. The product should also not create an unreasonable risk of injury when used in a foreseeable manner. If you have been injured by a product, you should seek the advice of an attorney. You may have a claim for products liability.

In recent years, the law in the State of Wisconsin has been overhauled on products liability claims. The changes to the law established new criteria for a strict product liability claim. The new law also created new defenses and a 15 year statute of repose. However, this new law expressly does not apply to claims based on negligence and breach of warranty.

I was hurt by an old piece of machinery. Do I still have a claim against the manufacturer?

The law in Wisconsin has changed with respect to this question. Wis. Stat. 895.047(5) provides that products liabilityclaims are limited to products that are manufactured within 15 years before a claim accrues. This may not prevent an injured person from bringing a negligence claim. If you are injured by a product, you should contact a personal injury lawyer to discuss the claim.

What should you do if you are injured by a dangerous product?

Here are some things to keep in mind if you are injured by a dangerous product. First, if it is possible try to preserve the product in the condition it was found after the injury. Depending on the situation, this may not be possible. Secondly, if you are able, take pictures of the product and the location where the injury happened. Be sure to keep all receipts that you may have as well as operator’s manuals that may relate to the product.

What kinds of "products" are subject to a products liability claim?

Virtually anything that has been made by someone in the business of selling that product may be the subject of a product liability claim. Well known examples include:

- farm equipment and machinery;
- poorly designed cars, trucks, recreational vehicles and motorcycles;
- lawn mowers and gardening equipment;
- toasters, ovens, and other household appliances;
- furnaces, fireplaces, and space heaters;
- dangerous children's toys, car seats, cribs, etc.;
- machinery and equipment used in a factory, such as presses, conveyors, etc.;
- electric saws, drills, nail guns, and any other power tools; and
- healthcare products such as pharmaceuticals, prostheses, artificial joints, etc.

Are manufacturers automatically liable for any injury received by someone using their product?

The short answer to this questions is “no”.  Liability is determined by the legal principles that control the case.  An injury in and of itself is not sufficient for liability to attach.  For example, if someone were to cut their finger with a carrot peeler, there is not likely to be a claim against the manufacturer of the carrot peeler, unless there was something wrong with the carrot peeler.  A carrot peeler must be sharp to function for the purpose it is intended. Also, a manufacturer is only responsible for injuries that might be received during the foreseeable use or application of its product.

How can product liability claims help make us all safer?

A personal injury claim can take on a broader meaning than just compensation for the injured party.  By bringing a claim, the injured person puts the manufacturer on notice of a defect with the product.  The manufacturer then has to make choices how they want to defend the claim and proceed.

History has shown that product liability claims have been successful in correcting design flaws in dangerous products.  They have also been successful in getting unsafe products taken off the market.  Just a few of the examples of safer products brought about by product liability claims; children’s pajamas that are flame retardant, lawn mowers that stop running with the release of a safety bar and all-terrain vehicles that are less likely to roll over.  The cases against the big tobacco companies were at their core product liability cases.

How can I afford to take on the huge corporation that manufactured the defective gas fireplace that caused the explosion and injured my family?

Most law firms, including us at Herrick & Hart, will represent injured parties in a products liability claim on a contingent fee basis. In other words, the attorneys fees would consist of a percentage of what is recovered from the manufacturer of the defective product. Product liability claims can be very complex, expensive, and time-consuming. For this reason, we thoroughly investigate each case before jumping in with both feet. Sometimes, people are injured and it is simply not anyone else's fault. Other times, however, their injuries could have and perhaps should have been prevented and we at Herrick & Hart pursue those manufacturers vigorously.

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