Rights of drunk driving accident victims in Wisconsin

Getting hit by a drunk driver is not the same as an ordinary crash, and Wisconsin law treats it differently in a few specific ways. Some of those differences work in your favor, like the right to ask for punitive damages. One of them may surprise you: Wisconsin is one of the harder states in the country in which to sue a bar that overserved the driver. Here is what actually applies to your case, with the statute behind each point.

How long you have to act

In Wisconsin you generally have three years from the date of the crash to file a personal injury lawsuit, and that covers injuries "caused or sustained by or arising from an accident involving a motor vehicle."¹ If a family member was killed, the deadline is shorter: a wrongful death claim arising from a motor vehicle accident must be filed within two years of the death.² Claims for damage to your vehicle and other property from the crash carry a three-year limit as well.³

Miss the deadline and the court will dismiss the case no matter how strong it is. The criminal case against the driver runs on its own schedule and does not extend your civil deadline, so don't wait for the prosecution to wrap up before talking to a lawyer.

Two separate cases, and only one pays you back

A drunk driver who hurts you can face criminal charges. Causing great bodily harm while operating under the influence is a Class F felony under Wisconsin's injury-by-intoxicated-use statute.⁴ A criminal conviction is the state punishing the driver, though. It does not make you whole.

There is a bridge between the two. If the driver is convicted, the sentencing court "shall order" restitution to you unless it finds a substantial reason not to and states that reason on the record.⁵ Restitution can cover medical and rehabilitation costs, lost income, and, in a fatal case, funeral expenses, and it reaches the kinds of special damages you could recover in a civil suit.⁵ What it usually won't do is pay your pain and suffering in full, and collecting from a defendant who is incarcerated is often slow. That is why most victims still bring a separate civil claim.

You can ask for punitive damages

An ordinary negligence case in Wisconsin only compensates you for your losses. A drunk driving case can go further. Under Wis. Stat. § 895.043(3), a jury may award punitive damages when the defendant "acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff."⁶

The Wisconsin Supreme Court has squarely held that driving drunk can meet that standard. In Strenke v. Hogner, the court upheld a punitive award against a driver who had a 0.269 blood alcohol level and four prior drunk driving convictions, ruling that a person acts in intentional disregard of others' rights when he acts with a purpose to disregard those rights or is substantially certain they will be disregarded, and that the conduct need not be aimed at the specific person he injures.⁷ Punitive damages are capped at $200,000 or twice your compensatory damages, whichever is greater.⁶

Suing the bar that overserved the driver

Usually you can't, and this is where Wisconsin breaks from many other states. Under Wis. Stat. § 125.035, a person is immune from civil liability "arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person."⁸ The tavern or the host who served one too many is, in most situations, protected.

The exceptions are narrow. Immunity falls away if the provider forced the alcohol on the drinker or claimed it contained no alcohol.⁸ It also falls away when someone knowingly serves a person under the legal drinking age and that service was a substantial factor in injuring a third party.⁸ So if the driver who hit you was underage and served at a bar or a party, a claim against the provider may be open. If the driver was an adult, the seller is almost always out of reach, and your recovery will come from the driver and from insurance.

When the driver can't pay: your own coverage

Drunk drivers are often uninsured, underinsured, or broke. Wisconsin's minimum liability limits are just $25,000 per person and $50,000 per accident for injuries, plus $10,000 for property damage,⁹ and a serious injury runs past that fast.

Two coverages on your own policy are built for this. Every Wisconsin auto policy has to include uninsured motorist (UM) coverage of at least $25,000 per person and $50,000 per accident, and you are not allowed to reject it.¹⁰ Underinsured motorist (UIM) coverage, which pays when the at-fault driver carries some insurance but not enough, is optional: insurers must offer it at limits of at least $50,000 per person and $100,000 per accident, and if you never paid a premium for it, the law treats it as rejected.¹⁰ Medical payments coverage is optional too, sold in amounts of at least $1,000, and it can be declined.¹⁰ Pull your own declarations page after a drunk driving crash, because your UM or UIM coverage may be the biggest source of money on the table.

Your share of fault and the 51% rule

Wisconsin follows modified comparative negligence. You can still recover as long as your own negligence "was not greater than" the negligence of the driver you are suing, and your award drops by your percentage of fault.¹¹ Practically, that bars you only if you are found 51% or more at fault. Against a driver who was legally intoxicated, juries rarely pin much blame on a sober victim, but an insurer may still try to shift some onto you, so it matters.

No cap on your real losses

Wisconsin does not cap the compensatory damages, economic or noneconomic, in an ordinary auto injury case. The noneconomic cap that applies to medical malpractice claims does not reach a car crash. The only statutory ceiling here is the one on punitive damages described above.⁶ Your recovery for medical care, lost earnings, and pain is set by the evidence, not a fixed number.

Your vehicle and the crash report

Along with your injuries, you can claim the cost to repair your car and, in many cases, the resale value it loses even after a proper repair; the specifics are on our Wisconsin diminished value page. You'll want the official crash report for any claim. It is sold through the Wisconsin Department of Transportation, and our Wisconsin crash report page covers how to get it.¹²

If you were hurt by a drunk driver and aren't sure where to start, the deadlines above are the reason to move early. You can find a Wisconsin attorney through our legal directory.

This is general information, not legal advice.

Sources

1. Wisconsin State Legislature, Wis. Stat. § 893.54 (personal injury statute of limitations). https://docs.legis.wisconsin.gov/statutes/statutes/893/v/54?view=section

2. Wisconsin State Legislature, Wis. Stat. § 893.54(2m) (two-year limit for wrongful death arising from a motor vehicle accident). https://docs.legis.wisconsin.gov/statutes/statutes/893/v/54?view=section

3. Wisconsin State Legislature, Wis. Stat. § 893.52 (property damage statute of limitations). https://docs.legis.wisconsin.gov/statutes/statutes/893/v/52?view=section

4. Wisconsin State Legislature, Wis. Stat. § 940.25 (injury by intoxicated use of a vehicle). https://docs.legis.wisconsin.gov/document/statutes/940.25

5. Wisconsin State Legislature, Wis. Stat. § 973.20 (criminal restitution). https://docs.legis.wisconsin.gov/document/statutes/973.20

6. Wisconsin State Legislature, Wis. Stat. § 895.043 (punitive damages standard and cap). https://docs.legis.wisconsin.gov/document/statutes/895.043

7. Strenke v. Hogner, 2005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296 (Wisconsin Supreme Court), via CourtListener. https://www.courtlistener.com/opinion/2071861/strenke-v-hogner/

8. Wisconsin State Legislature, Wis. Stat. § 125.035 (civil liability immunity for providers of alcohol beverages). https://docs.legis.wisconsin.gov/document/statutes/125.035

9. Wisconsin State Legislature, Wis. Stat. § 344.33 (minimum motor vehicle liability limits). https://docs.legis.wisconsin.gov/statutes/statutes/344/iii/33?view=section

10. Wisconsin State Legislature, Wis. Stat. § 632.32 (uninsured, underinsured, and medical payments coverage). https://docs.legis.wisconsin.gov/document/statutes/632.32

11. Wisconsin State Legislature, Wis. Stat. § 895.045 (comparative negligence). https://docs.legis.wisconsin.gov/statutes/statutes/895/i/045?view=section

12. Wisconsin Department of Transportation, Crash Reports Portal. https://crashreports.wi.gov/