Concerted
Action Case Analysis
Nov.
22, 2006
In
light of the court’s holding, it is clear that it will be
a very rare case in which the concerted action theory applies.
Other than the instance of two defendants engaged in drag racing,
the court suggests no fact pattern in which it could apply.
One
other seemingly appropriate application would be a variation on
the classic torts case of Summers v. Tice, 199 P.2d 1 (1948).
In Summers, two hunters both shot negligently at a quail; one
of the two hit the plaintiff, but it could not be determined which.
Both were deemed joint and severally liable, for to hold otherwise
would exonerate both from liability.
Presumably,
today, it could be determined which of the hunters caused the
injury. Nevertheless, under the concerted action theory, all the
negligent hunters involved could be found jointly and severally
liable, even if it could be shown that he did not fire the shot
that caused injury.
However,
it is clear from the court’s opinion that the doctrine will
be applied rarely. When it is, an interesting question that will
arise in those rare cases is whether the court should actually
give the new WIS JI — CIVIL 1740 to the jury.
In
this case, for instance, even though the parties stipulated to
the facts and the apportionment of negligence, the parties and
the trial judge apparently operated under an assumption at the
trial level that it was a question of fact whether the parties
acted in accordance with a common scheme or plan under sec. 895.045(2).
Similarly,
the Civil Jury Instruction Committee’s comment to the instruction
states, “The Committee believes that the question of whether
parties have acted in accordance with a common scheme or plan
is a question of fact for the factfinder.”
The
court of appeals, however, applied de novo review. This suggests
that the question may be one of law, for the trial court to decide
in the first instance, rather than a jury.
In
a footnote, the court wrote, “Although the parties agreed
to allow the trial court to function as the fact finder and the
trial court ultimately concluded that a ‘common scheme or
plan’ did exist, the issue before us is the propriety of
the trial court’s initial legal conclusion that an issue
of fact existed, that is, whether Wis. Stat. sec. 893.045(2) applies
to this case. As such, this issue is a legal question that we
review independently.”
In
most cases, it would seem that, even if the court finds, as a
matter of law, that the statute applies, there is nothing to ask
the jury.
Such
an interpretation is bolstered by a discussion by the court on
the difference between concerted action and comparative negligence.
The
court wrote, “the liability in a situation involving concerted
action is not merely joint and several, but equal among all of
the negligent parties, making a determination of relative negligence
unnecessary.
Therefore,
in a case where the relative negligence of each defendant is assessed
individually, a concerted action inquiry would be inherently inconsistent
and may not be undertaken (emphasis in original)(cites omitted).
Consider
the hypothetical example of the drag racers. Because concerted
action liability is a question of law, then (to use the example
where defendants A and B are allegedly drag racing, but only A
actually causes the injury to the plaintiff), the only question
the jury should be asked relative to B is, “was B drag racing,
too?”
If
the jury answers “yes,” he is jointly and severally
liable.
If
it is undisputed that B was drag racing, there should be nothing
to ask the jury, at all.
Thus,
although the court found that WIS JI — CIVIL 1740 accurately
states the law, in most cases, even where the concerted action
theory applies, the jury instructions would be clearer without
it.
-
David Ziemer
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David
Ziemer can be reached by email.
