Concerted
action liability limited
Joint liability,
comparative negligence ‘inherently incompatible’
By
David Ziemer
david.ziemer@wislawjournal.com
Nov.
22, 2006
|
What
the court held
Case:
Richards v. Badger Mut. Ins. Co., No. 2005AP2796
Issue:
Can the provider of alcohol to an underage drinker be held
jointly and severally liable for injuries caused when the
underage drinker injures a third party while driving intoxicated,
under a concerted action theory?
Holding:
No. Under such facts, there is no common plan or scheme,
within the meaning of sec. 895.045(2).
Attorneys:
For Appellant: Darling, Eric S., Milwaukee; For Respondent:
Murphy, James J., Milwaukee; Stachowiak, Keith R., Milwaukee
|
To
be jointly and severally liable for concerted action under sec.
895.045(2), the persons must have acted in accordance with a common
scheme or plan to accomplish the result that caused the injury.
As
a result, the Wisconsin Court of Appeals held on Nov. 14 that
a defendant who procured alcohol for an underage drinker is not
jointly and severally liable for injuries caused when the underage
drinker later drove a motor vehicle.
According
to facts stipulated to by the parties, in 2003, Robert Zimmerlee
and David Schrimpf, both nineteen years old, attended a party
at which they drank beer which had been purchased by Tomakia Pratchet,
a thirty-one year old co-worker of Schrimpf.
Zimmerlee
provided the money for the beer that Pratchet actually purchased,
and Pratchet was not present at the party while they drank it.
At approximately 7:30 a.m. the next morning, Zimmerlee and Schrimpf
left the party, with Zimmerlee driving, and Schrimpf as a passenger.
Zimmerlee
ran a stop sign while speeding, and collided with an automobile
driven by Christopher Rich-ards, who was killed in the accident.
The
parties stipulated that Richards’ damages were $1,785,714.29,
and that causal negligence was as follows: Zimmerlee, 72 percent;
Schrimpf, 14 percent; and Pratchet, 14 percent.
Zimmerlee’s
insurer settled for his share, $1,285,714.29, and Schrimpf’s
insurer settled for his share, $250,000.
Richards
never brought suit against Pratchet, and instead sought to recover
Pratchet’s share from Schrimpf’s insurer under a joint
and several liability theory.
Milwaukee
County Circuit Court Judge Patricia D. McMahon held that Schrimpf,
Zimmerlee and Pratchet “acted in accordance with a common
scheme or plan in procuring beer,” and thus were jointly
and severally liable under sec. 895.045(2).
Badger
Mutual Insurance Company — Schrimpf’s insurer —
appealed, and a divided court of appeals reversed, in a decision
written by Judge Patricia S. Curley and joined by Judge Ted E.
Wedemeyer, Jr.
Judge
Ralph Adam Fine dissented.
Statutory
History
The
court began with a history of joint and several liability in Wisconsin.
Prior to 1995, joint and several liability was a common law rule
that permitted a plaintiff to recover all of his damages from
any defendant whose negligence caused injury.
In
1995, joint and several liability was limited to defendants 51
percent or more causally negligent.
However,
an exception was retained for “concerted action”: “Notwithstanding
sub. (1), if 2 or more parties act in accordance with a common
scheme or plan, those parties are jointly and severally liable
for all damages resulting from that action.” Sec. 895.045(2).
Common
Law
The
court found that three pre-1995 cases addressed concerted action:
Ogle v. Avina, 33 Wis.2d 125, 146 N.W.2d 422 (1966); Collins v.
Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984); and Bruttig
v. Olsen, 154 Wis.2d 270, 453 N.W.2d 153 (Ct.App.1989).
In
Ogle, the court held that two drivers who had engaged in drag
racing were equally liable even though only one driver actually
caused the fatal collision. In Collins, the court declined to
apply “concerted action” liability to drug manufacturers,
when the plaintiff could not identify which manufacturer produced
the drug that injured her.
Finally,
in Bruttig, the court did not consider the merits, but noted that
the concerted action theory had never been imposed on anyone in
a Wisconsin appellate decision, except participants in a drag
race.
From
the history of sec. 895.045 and the common law pre-1995, the court
concluded that subsec. (2) is a codification of the common-law
rule in Ogle and Collins.
Accordingly,
the court held, “in order for concerted action liability
to attach under Wis. Stat. sec. 895.045(2), the persons held liable
must have acted in accordance with “a common scheme or plan
to accomplish the result that injures the plantiff,” and
there must have been an agreement — tacit or express —
about the common scheme or plan (cites omitted)(emphasis added
by court).”
The
curt further noted that the Wisconsin Civil Jury Instruction Committee
recently released a jury instruction for subsec. (2) — WIS
JI — Civil 1740, which relies heavily on the Supreme Court’s
discussion in Collins, and the Restatement’s position on
concerted action (consistent with Wisconsin’s pre-1995 precedent).
Application
Applying
the concerted action theory to the facts, the court concluded
it did not apply to Pratchet.
The
court reasoned, “Zimmerlee, Schrimpf and Pratchet had an
agreement to purchase alcohol. This agreement had nothing to do
with Zimmerlee driving while intoxicated some twelve hours later.
Because the act that caused the injury was Zimmerlee driving while
intoxicated, and because Pratchet did not engage in a ‘common
scheme or plan’ to drive while intoxicated, Zimmerlee, Schrimpf
and Pratchet cannot be subject to concerted action liability under
sec. 895.045(2) for the injury that resulted from Zimmerlee driving
while intoxicated.”
Accordingly,
the court reversed.
The
Dissent
Judge
Fine dissented, concluding that the plain language of the statute
provides for joint and several liability.
Because
it was undisputed that the defendants had a common scheme to buy
alcohol, and as a result of Zimmerlee’s drinking and driving,
he caused injury to Richards, Fine concluded that the statute
provides for liability.
Fine
wrote, “the Majority has overly complicated a simple matter
by attempting to read the tea leaves of cases and concepts that
are not on point because they pre-date what the legislature did
in 1995, and thus, in my view, are inapplicable. … Wisconsin
Stat. sec. 895.045(2) is plain and applies here.”
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