Gaertner v. Holcka

Roth, Plaintiff, Robin f/k/a Robin Gaertner, v. Fathers, The Franciscan Holcka, Order of Gertruda Insurance Com Casualty and Property Northbrook Inc., Society, Mutual Relief and Catholic pany Defendants-Appellants,† Family Company, American Mutual Insurance

Defendant-Respondent.

Supreme Court 7, 1998. January June argument 96-2726. Oral No. —Decided 26, 1998. (On appeals.) the court of certification from 271.)

(Alsoreported in 580 N.W.2d August †('Motion denied for reconsideration join. Abrahamson, Bradley, J. J. C.J. dissents. Geske the there were briefs defendant-appellant For Pendergast, Crivello, Steeves, Jr. and L. John R. Frank Carlson, Steeves, S.C., & Mentkowski and Milwaukee Pendergast, John R. Jr. argument by oral there a For the was brief defendant-respondent Hostak, Devine, Thomas M. JoAnne Breese-Jaeck and Bichler, S.C., & Henzl argument by Racine and oral Thomas M. Devine. P. WILCOX, 1. JON J. This case before the

court on certification from court the follow- appeals an ing order Circuit Court for Kenosha County, Bastianelli, David M. Judge, which dismissed Mutual) (collectively referred to as Catholic appellants' motion for summary judgment upon Catholic Mutual's against cross-claim for contribution the respondent (American American Family Company Insurance Fam- from ily). Catholic Mutual the circuit court's appealed final order. case, As we there is one issue interpret for our determination: whether a

presented common law action for bemay against contribution brought per- 347.48(2m)(c) (1989-90),1 sons who violate Wis. Stat. § 347.48(2m)(g), by as controlled a motor operating vehicle without that each reasonably believing passen- between 4 and 15 seated at a ger years age, and vehicle, designated seating position in is properly a seat restrained with belt. The court appeals (1) issues on presented following two certification: whether of a non-intentional passive negligence tortfeasor creates a common with a claim of con- causally negligent supporting tortfeasor tribution enhanced attributable (2) can whether there be con- passive negligence; injury tribution in an enhanced case from party whose a substantial cause of passive was injuries. the enhanced not as they We need address these issues are court,

certified to this since conclude that the legis- we a claim for lature has its intent expressed not may involving contribution be sustained cases for failure to another with a seat restrain statutory All future references are to the 1989-90 volume unless otherwise noted. 347.48(2m)(g).

belt, by controlled Wis. Stat. as circuit court affirm the order of the we Accordingly, Mutual's motion for sum- Catholic which dismissed mary judgment. below, the parties stipu- In the proceedings matter. On September to the relevant facts

lated (Gaertner) 11, 1991, Robin Gaertner plaintiff Koldeway (Koldeway) Justin picked up year-old mother and Koldeway's from school at the request Following him to a doctor's appointment. drove mother, Gaertner, of Koldeway's a friend appointment, in the Koldeway to her home with seated began driving home, On the Gaertner was way rear seat of car. in an accident with an automobile driven involved (Holcka). the defendant Gertruda Holcka owned negligence. The accident was caused Holcka's solely by accident, Koldeway At the time of the was 5.¶ seat not an available rear shoulder harness wearing her auto- operated belt installed for his seat. Gaertner to believing either or reasonably prior mobile without Koldeway wearing at the time of the accident was the seat belt. sustained serious and Koldeway permanent $588,235.29 in accident, in the to amounting Koldeway's As a full and final settlement of

damages. accident, Mutual, Catholic arising claims out insurer, $500,000 to At the paid Koldeway. Holcka's time, its to seek right same Catholic Mutual preserved insurer, Fam- contribution from American Gaertner's $100,000 had insurance ily, policy which issued of the Gaertner that was in effect on the date accident. $500,000 7. The settlement appears suffered 85% of the total represent as reduced inter- Koldeway, parties' apparent of Wis. Stat. The 347.48(2na)(g). relevant pretation of this statute provide: provisions Safety safety sys- belts and child restraint tems. ...

(2m) (a) subsection, In this Required Use. "properly wearing safety restrained" ‘means a belt (2) department approved by the under and fast- sub. in prescribed by ened a manner the manufacturer safety permits safety belt which belt to act a body as restraint.

(c) required If a motor vehicle is to be state, equipped safety person belts in no with may operate that motor he or she vehicle unless reasonably that each who is at passenger believes 4 years years old and not more than 15 old and least designated seating position is seated at a in the who seat under 571 to required front 49 CFR have a safety designated seating posi- belt installed or at a seats, seats, other tion than the front for a which shoulder harness has been installed is restrained. properly

(d) required If a vehicle motor is be state, safety equipped person with belts in this no is at old is seated at years who least and who a designated seating position front in the seat required CFR under 49 571 to have belt designated position in seating installed or at a seats, seats, other than front which a shoul- may passenger harness has installed be der been person properly in that motor vehicle unless the is restrained.

(g) compliance failure to com- Evidence or (c) (d) (b), par. any with or civil ply admissible property damage or personal action of a motor vehi- operation the use or resulting from 895.045, respect Notwithstanding s. with cle. damages determined to have been injuries or (c) (b), (d), or comply par. to with by caused a failure recovery reduce the for those a failure shall not such by para- more than This injuries damages or 15%. of causal not affect the determination graph does in the action.2 negligence 895.045, as cross-refer- Stat. Wisconsin § contributory- is 347.48(2m)(g), in Wisconsin's enced § It as follows: statute. negligence provided Contributory negli- Contributory negligence. any recovery by in an action gence shall not bar dam- legal representative his to recover person or injury to ages negligence resulting death or negligence if not property, or such was person negligence person against of the greater than the parties at the The record unclear as to how the arrived is $500,000 they may interpreted figure, appears but it that have 347.48(2m)(g) require a from 15% reduction § (Am. damages. Appeal Koldeway's total See Record on at 24:2 1996) $500,000 15, (illustrating is Brief March that Fam. $588,235.29). exactly damages Because this of the total of 85% appeal, need not decide whether this issue is not before us on we parties adopted reading 347.48(2m)(g) indeed the have § —if one. interpretation this the correct —is "safety belt," Although employs 347.48 the term we use throughout opinion purposes the term "seat belt" meaning intended to the same as simplicity. The term is have addition, In note that that used in the Wisconsin statutes. we 347.48(2m) 347.48(2m) provision. contained a "sunset" See § 1991."). (h) ("This apply after June subsection does not 6, 1991, by July provision repealed this sunset was Effective Therefore, Act 26. the 1989-90 version of the 1991 Wisconsin throughout period the time that is remained in effect statutes relevant to this case. recovery any sought,

whom but allowed proportion shall diminished in the to the be amount person recovering. attributable to the Myklebust, qualified ¶ 9. Dr. Joel biomechani- engineer expert opined Koldeway's witness, cal damages substantially

would have been reduced had Koldeway wearing a seat at time been belt of the According expert, Koldeway's accident. to the 75% injuries by were caused the failure to wear a seat belt were caused the accident. 25%

¶ 10. Of the 75% of caused failure Koldeway's inju- belt, wear a seat 70% of incremental operation ries were caused Gaertner's of her reasonably believing ensuring without or automobile Koldeway wearing belt, was a seat and 30% were by Koldeway's own to caused wear seat belt. failure subsequently brought ¶ 11. Gaertner suit inju- against damages Catholic Mutual to recover turn, sustained in the accident. In ries which she against Catholic Mutual filed a cross-claim American Family seeking portion contribution for a of paid Koldeway. Specifically, $500,000 it had to which damages Catholic Mutual calculated its contribution = $500,000.00 $308,823.53.3 x x as follows: 0.75 0.70 slightly that Catholic Mutual used a different We note Appellants' Brief at 16-17 formula in its brief to this court. See $588,235.29 amount, than (using total rather formula). $500,000 amount, figure as initial For settlement irrele purposes opinion, proper of this formula to be used is produce since formulas dollar amounts that are vant both $100,000, Family's potential excess of American of any liability has released of since Catholic Mutual Gaertner Family's policy American limits. See Catholic Mutual above Brief at n.4. differently,

¶ 12. Stated Catholic Mutual multi- plied paid Koldeway the total insurance settlement by percentage Koldeway's injuries that were by caused the failure to wear a seat belt alone. This product multiplied by percentage in turn was Koldeway's injuries, enhanced failure to wear a seat operation belt, that were caused Gaertner's of her reasonably believing automobile without Koldeway wearing was a seat belt at the time of the accident. According

¶ 13. Mutual, Catholic the net represents percentage amount caused Koldeway Gaertner's failure to ensure that was wear- ing argues a seat Therefore, belt. Catholic Mutual judgment it was entitled to for the entire $100,000 Family policy. American Following stipulated

¶ 14. dismissal against Gaertner's claims defendants, Catholic summary judgment, arguing Mutual filed a motion for that the three elements of a contribution claim were prerequisites satisfied in this case. "The three to a con parties joint tribution claim are: 1. Both must be negligent wrongdoers; they must have common lia bility person; because of such to the same [and] party unequal 3. one such must have borne an proportion of the common burden." General Accident Sorgi, Ins. Co. v. 202 Wis. 2d 98, 103, 549 Schoendorf & (1996) (quoting N.W.2d 429 Farmers Mutual Auto. Ins. Co. v. Milwaukee Co., Auto. Ins. 512, 515, Wis. 2d (1959)). N.W.2d 746 Specifically,

¶ argued Catholic Mutual that jointly both itself and Gaertner were liable for Koldeway's indepen- enhanced because their joint dent torts concurred in time. Because the parties injuries, of the caused the enhanced that the had common parties Catholic Mutual asserted Finally, argued as well. Catholic Mutual liability lia- it had an of the common unequal proportion borne Koldeway's damages since it for all of bility paid out of the accident. arising Family argued In American response, 347.48,

neither of Wis. Stat. legislative history § in nor the common law this state has ever created a in tortfeasors seat right of contribution To the American contrary, Family belt situations. that the choice to limit the reduc- legislature's asserted recoverable by injured party tion of evidenced an intent the tortfeasor prevent 15% a "windfall" receiving for the accident from responsible other than the 15% statute. provided 17. The circuit court concluded that since conduct, there solely by accident was caused Holcka's there no common this case. Because liability was accident, Catholic no common for the was as a matter of Mutual was not entitled to contribution July 3, on the circuit court Accordingly, law. and entered summary judgment, denied the motion for of American Catholic Family. favor judgment and the court of certified the appeals Mutual appealed, (Ride) 809.61 case to this court to Wis. Stat. pursuant § (1995-96).

I. a common 18. The issue is whether presented bemay brought against per- law action for contribution 347.48(2m)(c), as sons who violate Wis. a motor 347.48(2m)(g), operating controlled that each reasonably believing passen- without vehicle at a years age, 4 and 15 and seated ger between designated seating position, properly restrained. summary judg- Whether Catholic Mutual's motion for granted ment should have been on this issue is a question appellate may of law that the courts review analysis. without deference to the circuit court's See Santiago v. Ware, 295, 205 Wis. 2d 323, 556 N.W.2d (Ct. 1996). App. Although substantially we follow methodology employed by the same the circuit court in analyzing summary judgment, a motion for the facts of undisputed this case are and, such, as we need not engage step-by-step analysis in the which that method- ology requires. See id. addressing

¶ 19. Before issue, we first trace history legislation involving of common law and negligence seat belt in Wisconsin. Since 1967, Wiscon- recognized sin has the failure to utilize an possible per- available seat belt could be a defense to a injury sonal claim. See Braun, Bentzler v. 34 Wis. 2d (1967). Although 362, 385, 149 N.W.2d 626 the seat require belt law did not then use belt, of a seat we duty, concluded that "there is a based on the common- ordinary law standard of care, to use available seat independent any statutory belts mandate." Id. ¶ 20. Use of the "seat belt defense" was later dis- Foley City cussed and clarified in v. Allis, West (1983). Foley, Wis. 2d 335 N.W.2d 824 In we possible addressed the ramifications of the successful damages, seat belt defense on or "since the proved defense was not in Bentzler.” Id. at 484. In char- acterizing "[s]ince failure defense, we stated that: generally to wear inju- seat belts causes incremental damage injuries ries, for these incremental can be separately purposes calculating treated recover- damages." able damages Id. at 485. The incremental negligence caused distinguished seat belt could be produced by passive negligence, from those where the are identical to the caused active in the same accident and are difficult separate purposes calculating recoverable damages. See id.

¶ 21. As result, we determined that seat belt negligence synonymous ordinary passive was not with negligence, but rather was more akin to an accident involving being two incidents: the first incident the actual occurring automobile collision, and the second occupant when the of the vehicle hits the vehicle's inte- rior. See id. at 484-85. These differences led us to procedure.. conclude that "a fair and administrable .is plaintiffs provable damages by to calculate a the usual negligence regard rules of without to the seat belt defense and then take into account the seat belt by decreasing damages by defense the recoverable the percentage plaintiffs negli- of the causal seat belt gence." Id. at 486-87.

¶ 22. Stated as a formula, mathematical we adopted following calculating damages the method for employed: when a successful seat belt defense is (1) Determine the negligence causal of each party as (Table (2) to the 1); collision of the apply two cars comparitive negligence principles to eliminate from liability a defendant negligence causing whose the collision is less them contributory negligence the of a (Table (3) plaintiff causing 1); the collision using the trier of fact's calculation of damages, the reduce the plaintiffs amount of each damages from the liable defendant the percentage negligence attrib- (Table uted to plaintiff the for causing the collision (4) 1); determine plaintiffs whether the failure to use an available seat negligence belt was and a injury, cause of percentage and if so what of the injury to the negligence causing total was due (5) (Tables 3); 2 and failure to wear seat belt (3) step calculated in plaintiffs damages reduce the attributed to the percentage (4) to wear an availa- plaintiff step under for failure causing injury. seat belt for ble Id. at 490. test four and five were subse- Steps 1987. See legislature altered

quently also Wis. Stat. see 132; Legisla- Act 347.48. Wisconsin intended to history legislature tive indicates Foley's limit on the reduction of a plaintiffs effect that were caused failure recovery solely by a seat belt: wear provision personal injury The on actions revises law, by formulated the Wisconsin common as Wis- Allis, Foley City v. West consin Court in Supreme of (1983). 475, 2d Under N.W.2d Foley, safety if failure to wear a belt is a injured injured person's injuries, cause of the the person's damages by are reduced recoverable to be percentage damages by of caused failure to wear safety 132, damages a belt. Under Act recoverable not be reduced more than 15%, may by regardless percentage by caused to failure wear a belt. Memorandum 87-8 at Wisconsin 8, Legis-

Information 1988. See also Staff, 8, lative Council January Legislative Memorandum, Bureau October Reference 27,1987. Thus, 24. legislature eliminated possi- by Foley left

bility seat belt open negligence causing incremental could the distri- injuries disrupt bution of financial to responsibility any great degree. Prior to the action in a legislature's plaintiffs and, a conversely, recoverable defendant or damages, financial defendants' overall could have responsibility, been reduced situations where the fail- significantly to majority ure wear a seat belt caused the s plaintiff 347.48, Since the amendment of Wis. Stat. injuries. the reduction in recoverable plaintiffs damages, by defendants, "benefit" received corresponding to statutorily injuries limited 15% of the caused to failure wear a seat belt.

II. It is that we make against background decision actions regarding our for contribution insurer who is against plaintiff defendant's responsi- for failing injured ble to ensure that an minor was restrained in a seat at the time of an properly belt automobile accident. Several considerations are rele- vant to our decision.

A. First, recognize it is that we important never the seat defense to provide have belt interpreted we an affirmative cause action for contribution. As belt is not be Foley, stated seat in the or passive included same class as active negli- Instead, See 113 Wis. 2d at 484-86. gence. Foley, that are caused the failure to incremental a seat "can be treated separately purposes wear belt Id. at calculating recoverable 485. This damages." from the technique distinction "borrows apportionment in two tort doctrines: avoidable conse- used traditional Id. at and 487. mitigation damages." quences Thus, it is clear that have previously we to a just the seat belt defense be that: interpreted 449 party belt, defense. fails to wear a seat he or When presumptively mitigate has failed to his or her she may plaintiffs damages. failure to Defendants assert defending against up" in a cause of action for "buckle personal injury negligence. and As we made clear may Foley, the defense not be used to affect the causal injury negligence personal Instead of in a action.4 being ordinary negligence as that could be used viewed damages, affirmative then, in an action to recover the seat defense seen as a useful tool common law belt was to ensure "that the defendant is not held liable for injuries plaintiff incremental could and should by wearing prevented have an available seat belt." Id. at 489.

B. By amending legis- § 347.48, Wis. Stat. explicitly adopted interpretation lature our of the seat Significantly, legislature sought belt defense. to preserve Foley's attempt prevent defendants from attaining by indicating para- "[t]his a windfall graph does not affect the determination of causal negligence action." See Wis. Stat. 347.48(2m)(g). opinion, As it is relevant legislature only ways: modified the common law in two (1) potential plaintiffs' to limit to 15% reduction in (2) damages; duty recoverable and to establish a on approach This granted ensures that defendants are not windfall, plaintiffs might since compensation receive no jury they that a totally determined could not have prevented, escape liability defendants could jury that the Foley determined their caused. See v. Allis, City 475, 488-89, West 113 Wis. 2d N.W.2d (1983). minor passen- to restrain properly of the driver behalf in turn. changes address these We will gers.5 (2m)(g) effected subsection change The (15% in recoverable reduction plaintiffs maximum intent to face, any illustrate not, does on its damages) for contribution. cause of action create an affirmative II.C. of in section as below contrary, explained To the legisla- it conclude that evidences we opinion, in a defense use of the seat belt preclude ture's intent to contribution action. effected Wis. change does the 30. Nor 347.48(2m)(c) create a intent to any legislative reveal

§ to rec- It is important for contribution. cause of action (2m)(c), a violation of subsection that ognize up" drivers "buckle duty upon a imposing subsection a viola- involves necessarily minor passengers, their use 347.48(2m)(d), mandating the subsection tion of § If person operates a passengers. a minor seat belt "that reasonably believing a motor vehicle without more 4 old and not years who is at least each passenger see restrained," . .is properly old. years than 15 that "a who 347.48(2m)(c), person it follows logically § in that motor . a passenger .[is] least old. years is at See being] properly [without vehicle restrained." 347.48(2m)(d). § construing "A rule of this court basic result as would avoid such constructions

statutes is to State being superfluous." of the statute in any portion Wachsmuth, 318, 324, 243 N.W.2d 2d v. 73 Wis. duty at com argues had Mutual that Gaertner Catholic restrained Koldeway properly was mon law to ensure asser Mutual's decide whether Catholic We need not seat belt. legislature has we conclude are accurate since tions of this sort. for contribution preempt actions intended to (1976). 347.48(2m)(d) together Read with Wis. Stat. 347.48(2m)(c) (2m)(g), superfluous would be purpose it unless had some additional other than plaintiffs damages by reduce the recoverable a maxi- of mum 15%.6 superfluous

¶ 32. In to order avoid a construction identify statute, theof we can reasons for two the inclu- 347.48(2m)(c). § of First, sion Wis. Stat. we conclude (2m)(c) legislature that the included to subsection coupled ensure that received, defendants with subsec- (2m)(g), possible plaintiffs tion a 15% reduction damages, jury recoverable even the when determines passenger that the minor is less than 15% for failing Accordingly, jury to wear a belt. seat even if a failing attributes little to minor for to up," negligent, pas- "buckle driver is still and the senger's damages may be reduced a maximum 15%. purpose

¶ 33. A second of Wis. Stat. 347.48(2m)(c) by examining § revealed the interrela- tionship §§ between Wis. Stat. and 347.48 347.50. The provisions provide: relevant of the latter statute 347.50 Penalties.... plain

6 A reading Wis. 347.48(2m)(g) Stat. § illustrates plaintiffs a may damages recoverable not be reduced twice statutory maximum of with respect injuries 15%:".. . damages or determined to have been caused a failure (c) comply par. (b), (d), with or such a failure shall not reduce recovery damages by those or more than 15%." added.) (Emphasis one, In situation involving such as this (c) necessary violation of and subsection its counterpart subsec (d), plaintiffs reducing tion recoverable twice necessarily would recovery reduce the for his or her incremental injuries by seat belt more than 15%.

(2m) (a) Any who violates s. person (c) 347.48(2m)(b) any years age person or and 347.48(2m)(d) may be who violates s. or older to forfeit required $10.

(b) may assessed for a viola- No forfeiture be 347.48(2m)(d) if is less than 16 of s. the violator tion occurs. years age when the offense did legislature illustrates clearly This statute minors less than 16 to impose penalties upon not want 347.48(2m)(d), but would for a violation of years old who "any person" to be imposed against allow penalties 347.48(2m)(c). (2m)(c), Therefore, subsection violates § 347.50(2m)(a) (b), also provides with coupled the driver against of a forfeiture the imposition $10 minor passengers alone for failing to restrain properly subsection enacting of years age. By and 15 between that acknowledged has (2m)(c), again the legislature than a more responsible of an automobile is the driver up." minor's failure to "buckle for that passenger minor statu- however, neither 34. Most importantly, an affirmative to the common law created change tory that responsibility. for contribution for cause of action Stat. Wis. Instead, by was authorized penalty a $10 reduction 347.50(2m)(a), 347.48(2m)(g) 15% § § allowed even was in recoverable plaintiffs' rela- determined to be minor is passenger where belt. to wear a seat failing faultless for tively Mutual cites 35. Catholic 347.48(4)(d) the seat proposition support § "sunset" also contained a Wis. Stat. 347.50 § We note that (2m)(c) 347.50(2m)(c). this statute provision. See Subsection Act 26. repealed by 1991 Wisconsin again was may affirmatively belt defense be used in an action for provides part: contribution. It in relevant Safety Systems (4) Child Restraint Exemptions, (a) Required; Standards; 1. No resi- dent, parent who is the guardian or of a child legal age under may transport child motor vehicle unless the child properly is restrained in a child system restraint approved by the department....

(d) compliance Evidence of or failure to com- (a) ply par. with any admissible in civil action for personal injuries or property damage resulting from the use operation or of a motor vehicle but failure to (a) comply par. with does not itself constitute negligence. Specifically,

¶ 36. argues Catholic Mutual legislature's language omission of the "failure to comply.. negligence" .does not itself constitute from 347.48(2m)(g) Wis. Stat. and the inclusion of that (4)(d) language in subsection of the same statute "is a expression legislative clear intent that a violation of (2m) liability." subsection is a basis Catholic Mutual disagree. Brief at 8. We recognition 37. As we have stated, since its

1967, the seat interpreted belt defense has never been provide grounds this court to for an affirmative against party. always action a third It has been used to damages, compel payment limit not damages. legislature adopted When the the common law seat belt nothing in change defense it did to that consis- tent and traditional characteristic of the seat belt defense.

c. determined that the seat belt Having defense has never before been as an affirma- employed contribution, tive cause of action for we are left to determine a matter of whether, as defendants equity, extent may greater be excused from to than that they allowed Wis. Stat. when 347.48(2m)(g) are at fault having initially. for caused the accident We they may conclude that not. 39. We have that previously recognized use of seat

goal ensuring safety through available Foley, belts is a laudable one. See 113 Wis. 2d at 489 ("We will also be hope passengers encouraged wear seat if their potential compensation inju- belts reduced."). However, ries is as with goal, any must be balanced principle equity, against sound unquestionably goal ensuring public safety safe and attentive on the state's through driving high- ways and streets. We cannot overlook completely Holcka's conduct in Gaertner's negligent assessing in Koldeway failure to restrain a seat belt. are why 40. The facts of this case illustrate we not that the seat belt defense can be used as persuaded an affirmative action for contribution. Were we to allow claim in using Catholic Mutual's this case proceed (0% contribution, negli- their own formula for Gaertner accident) in would be gence causing responsible $308,000 Koldeway's injuries, leaving over Holcka (100% accident) causing responsible $192,000 for less than of Koldeway's approximate $588,000 in had an damages. Although total Gaertner $100,000 case, in this we only insurance worth policy case; nor always cannot this will be the presume will, Cath- can we assume that defendants' insurers as here, olic Mutual has done release plaintiffs Gaertner's from position liability above their policy limits. the seat Although not, belt defense does

strictly affect speaking, determination of causal in negligence any action for personal injury, this case illustrates that use of the seat belt defense in an affirm- ative cause of action for contribution can drastically alter the landscape liability by defendants' reducing overall financial responsibility, of the regardless amount of fault that is attributable to the defendant for causing the accident initially. 42. Such a determination policy would require

this court to declare that seat belt negligence effec- tively outweighs or supersedes active causal negligence any automobile accident. Regardless the defendant's responsibility causing original accident, the driver's failure to properly restrain a pas- senger could almost eliminate the defendant's financial responsibility altogether. On the hand, other there be a may point when active causal negligence carries more than weight seat belt negligence point at —a which the driver's the passenger's injuries should cease. Performing balance would thrust this court into a policy-making role more appropriately left to the legislature. 43. More as importantly, mentioned, we have

the legislature has explicitly declared that one's own seat belt negligence should not the determi- outweigh nation of active causal an automobile accident —a possibility clearly remained after our decision in Foley. Instead, the legislature has indicated that seat belt negligence may reduce the only injured party's incremental aby maximum of 15%. See Wis. Stat. We 347.48(2m)(g). conclude that in doing so, also intended legislature to limit the potential windfall to defendants who are determined to caus- be ally negligent. We decline hinder that stated policy cause of action for by allowing present contribution to proceed.

III. 44. Because conclude that we Wis. Stat. 347.48(2m)(g) legislature's evidences intent to § bar claims for contribution seat belt involving negli- gence, we affirm the order of the circuit court which dismissed Catholic Mutual's motion for summary judg- ment against Family. American the Court. —The order of the circuit court

By affirmed. {concurring). BRADLEY, 45. ANN WALSH J.

The concludes that majority incorrectly Wis. Stat. intent to 347.48(2m)(g) legislature's "evidences § in use of the seat belt defense a contribution preclude at 451. such intent Majority op. legislative action." No in or in history. can be found the words of the statute its and the contrary, legislative To the both words of the statute evidence its sole true history purpose: limit to 15 reduction percent potential plaintiffs' recoverable To to this statute a damages. impute legis- lative intent that is not evidenced invades legitimately arena. legislative 46. While I with the mandate of the agree court, I express my agreement write with separately (the dissent) Justice Geske's dissent that Wis. Stat. does not a common law cause of 347.48(2m)(g) bar § action for contribution driver violates against 347.48(2m)(c). § However, Wis. Stat. I also write to express my disagreement with her dissent that under pursue current law the driver this case can against a common law cause of action for contribution 347.48(2m)(c). § the host driver that violates majority ¶ 47. The in this case concludes that the legislature 347.48(2m)(g) intended Wis. Stat. to bar involving negli- claims for contribution made "in cases gence for failure to restrain another with a seat Majority op. responds belt----" The at 439. dissent design 347.48(2m)(g) the limited of Wis. Stat. "is to cap plaintiffs the reduction of an unrestrained recover- damages," able and that the "statute does not address any party's negligence." limitation or reduction of a Dissent at 466. The dissent then concludes that Gaertner violated a statute, that the violation injuries, enhanced Justin's and that Gaertner is accordingly significant portion liable to Holcka for a of damages Justin's under the of laws contribution. agree analysis ¶ indicated, 48. As I with the 347.48(2m)(g) the dissent that Wis. Stat. does not bar presented contribution actions under the facts I here. point leave discussion of that to the However, dissent. I join do not the dissent's determination that in this case joint Gaertner is a tortfeasor with Holcka. Even if I assume that Gaertner violated a statute or a duty, coordinate common law under current law and stipulated parties facts the to this action are not joint tortfeasors. requirements

¶ 49. There are three for a contri- parties bution claim in First, Wisconsin. must be joint "joint negligent wrong- tortfeasors, also known as parties liability Second, doers." must inbe common injured party. Finally, parties to the one of the must unequal proportion have borne an of the common bur-

458 & Accident Ins. Co. v. den. See General Schoendorf (1996). Sorgi, 98, 103, 2d 549 N.W.2d 202 Wis. negli- liability in seat belt Determination 50. easy gence As the court indicated is not an City task. cases Foley 475, Allis, 113 2d v. West (1983): N.W.2d accident to think of the automobile helpful [I]t is involving as not one involving seat-belt the actual The first incident incident but two. incident, is set in . .The second which collision. . it, not occur without by the first and would motion the vehicle hits the occupant occurs when Wearing seat belts is relevant interior. vehicle's .may aggravate and. . only to the second collision caused the first collision. some of the omitted). (citations Id. at 485 injuries can that car accident To the extent injury, only is cor- as one dissent characterized

be Foley liability. qualified finding joint However, rect in indicating aggravation also statements its initial "[fjailure may also cause seat belts to wear injuries." Id. additional independent result torts In scenarios where injuries, separate are successive. the tortfeasors only inju

Generally, for the are liable such tortfeasors of them. "Since successive to each ries attributable joint and thus occurs involved, no torts are cmt.; JI —Civil is not allowed." Wis contribution Hosp., 287, 187 2d 51 Wis. v. Memorial see Butzow (1971). injuries separate Distinguishing 349 N.W.2d only aggravated injuries would are from those which two of torts that where the law also be consistent with ] result[ "concur[ ] in distin in time but acts subject, injuries guishable separate there to the same 459 are torts rather than separate joint liability." Johnson (1976). Heintz, 286, 302, v. 73 Wis. 2d N.W.2d I note very 53. the stipulation by offered the two-accident, into the parties plays potentially divisible injury framework created and by Foley insti- tutionalized the by resulting standard jury instruction injuries. enhanced See Wis 1723. The stip- JI —Civil ulation in this case in pertinent reads part: solely by The accident was caused the conduct

of Gertruda Holcka. Seventy-five percent Koldeway's of Justin injuries were caused the safety failure to wear a twenty-five belt and percent were caused accident. operation

13. Robin Gaertner's of her automobile reasonably believing without ensuring or that Jus- Koldeway tin wearing was a safety belt caused 70 percent of Justin Koldeway's injuries enhanced due to the failure to a safety wear belt Justin Koldeway's failure to wear a safety caused belt percent injuries his enhanced due to failure to wear a belt. 54. The stipulation indicates that Holcka's neg-

ligence in operating her vehicle an caused accident with Gaertner's car. At time of that accident Justin suffered that when viewed after fact consti- tuted of his total 25% The injuries. stipulation provides that after the collision between cars, two both Gaertner's failure to restrain Justin and Justin's fail- ure to a safety wear belt enhanced Justin's injuries. 55. The parties further buttress my view existing law incorporating offered to stipulation the court into the standard enhanced injury jury and answer question As verdict special instruction. brief indicate: nine in the defendant's number that caused Assuming negligence the combined injuries per- totals 100 Koldeway's enhanced Justin cent, negligence of such percentage what to: attributable 30% Koldeway

Justin 70% Robin Gaertner 100% TOTAL that a tortfeasor whose noteworthy it is again Once negli- initial collision and whose caused the conduct the causal factor of be a substantial may conduct gent any credited with is not victim's enhanced for those injuries. responsibility here as one the injury 56. The dissent views concurring respon- having and the tortfeasors as injury Yet, tension arises between for that sibility injury. responsi- apportionment view and the the dissent's injury. special the enhanced Neither bility any apportions nor the questions stipulation verdict for this separate to Holcka of responsibility percentage injury. second committee com- Foley, In referring instruction jury failure to use belt

ments to the suggested "It has been this tension. acknowledge as a con- instead be treated should seat belt decision, the reviewing Foley current tort.... After the instruction formulating concludes that Committee theory concurrent tort under verdict special decision...." Wis Foley be inconsistent with would 1277 cmt. JI —Civil 58. The dissent resolves quandary

presented Foley by essentially it. The dis- ignoring sent relies instead another line of enhanced upon injury cases which around revolve crashworthiness See, and products e.g., claims. v. Sumnicht Sales, U.S.A., Toyota Inc., 359, Motor 338, 121 2d (1984). 2 360 N.W.2d IWhile with the dis- may agree sent that the general of such principles non-seat belt negligence cases control in seat belt cases as should well, cannot Foley be ignored. 59. The Foley analy- court created its two-crash

sis to divorce consideration of the plaintiffs seat belt from negligence in inclusion the initial comparative fault calculation then under existing Wisconsin law. See 113 Foley, 485-86; Wis. 2d at Michael K. McChrys- tal, Seat Belt The Negligence: Ambivalent Wisconsin (1985). Rules, Marq. L. However, Rev. in attempting partition seat negligence away belt from the primary tortfeasor's it negligence, appears Foley court may have also partitioned the pri- mary tortfeasor's from the negligence away seat belt in determining responsibility enhanced injuries. The Foley court seems to have immunized ini- tial tortfeasors from the full consequences their negligence. See at McChrystal, 544. In response to the Foley decision the legis-

lature enacted Wis. 347.48(2m)(g). Stat. § Although legislature limited the injured reduction of the person's for failure to wear a seat thereby belt and exposed the initial tortfeasor to liability for the seat belt it did injury, not affect the issue before the court today. Under the stipulated facts of this only case Gaertner and Justin are responsible for the seat belt injury. The percent reduction set forth Wis. Stat. does to alter 347.48(2m)(g) nothing successive status tortfeasor between Gaertner and Holcka.1 I believe this court should revisit that part of the two-accident elimi- Foley framework which responsibility nates concurrent between the primary tortfeasor and other responsible tortfeasors for lack of seat belt restraint accident automobile cases, as as the enhanced instruction. injury jury well If after revisiting Foley this court determines joint are tortfeasors with common lia- negligent parties address, then court also bility, should and not inherent in the ignore, policy questions certified See, court from the Rockweit questions appeals. e.g., Senecal, 409, 425, v. 197 Wis. 2d 541 N.W.2d 742 (1995). 62. I with Accordingly, agree the comment to

¶ the jury injuries, standard instruction enhanced "[sjince 1723, JI —Civil Wis successive torts are involved, no and joint liability occurs thus contribution However, is not allowed. the accident causing would entitled equitable subrogation tortfeasor be the extent he or she for those attributa- paid the to the jury enhancing ble tortfeasor." Wis law, JI —Civil 1723 cmt. Under the existing because in tortfeasors," tortfeasors this case are "successive not in tortfeasors," Holcka's must "joint claim contribution fail. ABRAHAMSON, 63. SHIRLEY S. CHIEF

¶ join I do (dissenting). opinion JUSTICE not court's 1 stating The dissent Justice in our of Geske incorrect position. legislature by operation negli The of makes statute gent like addressing drivers Holcka hable without common concept joint law or successive tortfeasors.

463 majority I think the I because or mandate. dissent Bradley's opinion, concurrence and Justice Justice Foley point out the need to reconsider dissent Geske's City 475, 2d N.W.2d 824 Allis, 113 Wis. 335 v. (1983). West agree Justice

¶ the conclusions both 64. I with Bradley that Wis. and Justice Geske 347.48(2m)(g) § a common law cause does not bar against a driver who violates action contribution 347.48(2m). Bradley and Justice both Justice Geske negli- important about seat belt raise gence considerations is, I am in Seat belt law Wisconsin. recurring cases. I am not sure, a issue numerous deciding discussing points these comfortable opinions and giving parties opportu- an raise without nity heard. to be put the court should I conclude that request argument September 1998 and

case on oral discussing parties additional briefs to submit and dissent and the issues raised the concurrence Toyota Sales, U.S.A., Inc., effect of Sumnicht v. Motor (1984), John 338, 2d 360 N.W.2d Farrell v. (Ct. App. 2d Co., Deere 151 Wis. N.W.2d (1995-96) 1989), 347.48(2m)(g) on the and Wis. Stat. Foley decision. foregoing reasons, I 67. For the dissent separately.

write (dissenting). GESKE, J. I dis- 68. JANINE P. wrong majority sent. The concluding focuses on the statute insurer, and her American that Gaertner Family, liability injured passen- to her minor have no injuries, ger, safety Justin, his belt related for therefore Holcka and insurer, that her Catholic right against Mutual, no of 347.48(2m)(g), have contribution § Wisconsin Gaertner. the statute majority strictly relies, on which the is concerned with reducing injured pas- the recoverable anof senger by safety who was not restrained at the belt of time the accident. That statute does not answer question presented real in this case: Who between the responsible paying two drivers is those reduced damages? Gaertner, I driver, conclude that the host 347.48(2m)(c),1 statute,

violated a Wis. Stat. negligent per negli- and was se. Because Gaertner was gent, injuries, and her caused Justin she Holcka, common has with driver I car; of the other also therefore conclude that Catholic having paid Mutual, all Justin's dam- recoverable ages Holcka, on behalf of is entitled contribution Family portion Gaertner and American for her from injuries. Justin's

I. disagree majority's application ¶ 70. I with 347.48(2m)(g), primary purpose Wis. Stat. plaintiff damages. provision limit is s which to That states:

(g) compliance Evidence of or failure to comply (c) (d) (b), par. with or is in any admissible civil personal damage property action for or operation resulting from the use or of motor vehi- 1 Petitioner Holcka asserts that Gaertner also has common injuries. liability to Justin for his enhanced Resolution of law question my necessary analysis is not Gaertner statutorily injuries. liable Justin's enhanced 895.045, respect with Notwithstanding s.

cle. to have been caused damages determined injuries or (c) (d), (b), or such a par. with comply a failure inju- recovery those not reduce shall failure paragraph by more than 15%. This or ries negli- of causal affect the determination does not added.) (Emphasis in the action. gence of Wis. reduction recovery provision 71. The not address the question does 347.48(2m)(g) Stat. § a between prohibited this court —is contribution before had no host driver who negligent driver and a that his or her minor pas- believe reasonably basis to belt? The safety properly was restrained senger reduc- is to 347.48(2m)(g) cap Stat. thrust of Wis. § damages. s recoverable plaintiff of an unrestrained tion or reduc- any not address limitation The statute does negligence. tion of a party's Stat. Another Wis. provision, That the outcome in this case. 347.48(2m)(c), controls states:

provision (c) required equipped is to be If a motor vehicle state, may oper- no safety person belts in this with reasonably unless he or she ate that motor vehicle years that each who is at least passenger believes years and not more than 15 old and who old in the front designated seating position seated at a safety 49 CFR 571 to have a required seat under designated seating position at a belt installed or seats, seats, for other than the front which properly has been installed is shoulder harness restrained. I subsection, of this conclude

Based on the terms 347.48(2m)(c) is a statute. II. 73. The violation of a safety statute constitutes 1) se if three per elements are the present: harm inflicted was the the statute type was designed to 2) prevent; the person injured was within the class of 3) persons sought to be protected; and there is some of expression legislative intent that the statute become a basis for the imposition civil See liability. Tatur v. Solsrud, (1993). 174 735, 743, Wis. 2d 498 N.W.2d 232 74. The reasons I conclude that Wis. Stat. 347.48(2m)(c) is a statute, safety and that Gaertner is se, are per following. Taking class first, element there is no dispute Justin, an 11- year old in a car passenger operated by Gaertner and rear having seat shoulder restraints, harness is a mem- ber of the class of persons meant to be protected by statute, minors namely, between the of 4 and ages 347.48(2m)(c).2 See Wis. Stat. § the harm Taking ele- next, ment Justin's safety belt related injury following the impact with Holcka's car is one of the of harm types this safety statute was enacted to I prevent. Finally, discern legislative intent, based on the language the statute as a whole and on its legislative history, that a host driver's failure to comply with Wis. Stat. 347.48(2m)(c) is negligence se and per forms the basis

2Other protect subsections up age children to the and 347.48(4) ages children between the of 2 and 4. See Wis. Stat. § (a)l (4)(a)2 (1989 90), and respectively. In the 1995—96 version — (4)(a)l statute, (4)(a)2 of the requirements of the former and (4)(a)l. (4)(a)2 are telescoped into the current The current cov safety systems ers child restraint for children who are at least 4 years old, years but less than 8 old.

467 I discuss the latter two elements liability.3 for civil more below. fully is met in this requirement 75. The of harm type one contends that belts motor safety prevent

case. No Instead, purpose accidents. belts vehicle at the enhanced or injury, to avoid or least avoid when, can occur in a vehicle incremental and free is unrestrained accident, passenger's body within the vehicle inte- objects to contact fixtures Braun, 362, 387, 2d 149 rior. See Bentzler v. Wis. (1967). These contacts are often referred to N.W.2d Weiss, See Monte E. The as "second collisions." Injury Theory Defense, Lawyer Enhanced as (Nov. 1996). 76. For some time Wisconsin has recognized injuries. that a tortfeasor can be liable for enhanced Co., 45, 60-61, Deere 2d See Farrell v. John 151 Wis. (Ct. 1989) cases)). This App. (listing N.W.2d court for incremental or recognized potential in injuries enhanced the case of a failure to particularly Braun, It is true that this court in Bentzler v. 34 Wis. 2d 362, 385, 149 (1967), interpret N.W.2d 626 declined to Wis. Stat. safety negligence per 347.48 as a statute in the "sense that it is § occupant se for an of an automobile to fail to use available seat belts," not, terms, require because Wis. Stat. 347.48 did its § Instead, the use of seat the Bentzler cotut stated that belts. relationship where the a causal evidence showed between belt, person's injuries and or her failure his to use the seat jury finding ordinary negligence. could make a See id. at 387. decided, placed At the time Bentzler was Wis. Stat. 347.48 no § obligation operator on a vehicle to ensure that his or her minor 1991, passenger by safety restrained a belt. In at the time of was 347.48(2m)(c) however, case, the accident in this Wis. Stat. § Thus, imposed just obligation. pre such an Bentzler does not 347.48(2m)(c) my clude determination that is § statute, safety negligence per the violation of which is se. wear belts in safety Foley City Allis, v. West 113 Wis. (1983). 2d 335 N.W.2d 824 77. According to the of an testimony expert

¶ wit- ness, Justin sustained enhanced injuries because he was not restrained by a shoulder harness belt at safety the time of the I accident. conclude that Justin's safety belt related are one of the types injuries this statute designed was to prevent. I Finally, conclude that the third element,

the "legislative intent" requirement per se liability, is in also met this case. enacted, 79. As originally Wis. Stat. 347.48

required presence of seat belts in cars manufac- tured or assembled beginning with the 1962 models. This court first interpreted statute 1967. See Bentzler, 34 Wis. 2d 362. The Bentzler court concluded that the statute did not use, belt require but also that a failure to acknowledged use the belt may be considered ordinary negligence contributes to the if injuries, proper evidence of cause and effect introduced. 80. The legislature amended Wis. Stat. 347.48 our following Foley, decision 113 Wis. 2d case,

475. In that the plaintiffs adults, were two one a and one passenger driver, neither of whom was wear- belts. ing safety They sued the driver of the other car. The jury attributed some for the collision to both The jury drivers. also found that the unbelted passenger was 70 percent negligent not used having her safety belt. This court said that causal negligence first, determined and where there are incremental injuries by belt, caused a failure to use a safety those are treated separately purposes calculat- ing recoverable 113 Wis. 2d at 490. damages. Had this court not reached that in Foley, conclusion the unbelted nothing would have recovered from

passenger plaintiff the defendant driver. 81. The decided to the effect legislature modify

¶ when, by of the decision virtue of 1987 Wis. Act Foley 132, 347.48, it a ceil- placed amended Wis. damages on how much a can be reduced ing passenger's safety for his or her to wear a negligence failing own belt. See A-Res-10.4 The amended statute cau- App. tioned, however, after limiting permissible of the damages reduction to 15 "This plaintiffs percent, does not affect the determination of causal paragraph in the action." Id. at 12. negligence Legislative 82. The Council Staffs description of 1987 Act 132 also a highlighted Wis. distinction Foley between the facts in and the newer provisions the Act: a "The driver of motor vehicle has responsibil-

ity under the Act regarding young passenger's with the law." A-Res-4. compliance App. 83. As the legislative history of Wis. Stat. 347.48 there can be more than one cause recognizes,

of a those causes person's injuries, including the failure a safety then, wear belt. See A-Res-7. App. Logically, failure to ensure that one's minor wears a passenger can a cause of the safety passenger's injuries. belt be 84. This court observed in Theisen v. Milwau- Ins., kee Auto. Mut. 2d 91, 118 N.W.2d 140 (1962), that assessing when of the host driver, driver or another and the guest "the passenger, Foley, negligent safety "Under if failure to awear belt is a injured person's injuries, injured person's cause of the recov damages by erable are to reduced percentage damages be safety caused failure to wear belt. Under Act recover damages may 15%, able regardless not be reduced more than percentage of the caused failure to awear App. belt." A-Res-7. relating question respective negli-

ultimate to their gence negligence guest's is whether such caused the injuries. necessary In most it is not cases to determine parties whether the lack of care of the various negligent found distinguished caused the collision as from injuries. apportionment question . .the likewise only causing should then be submitted in terms of added.) plaintiffs injuries." (Emphasis Thiesen, 18 Similarly, person 2d at 106-07.' Wis. who fails to 347.48(2m)(c) causally comply neg- § with Wis. Stat. ligent, required and should be to contribute to the payment injured passenger's of the recoverable damages. Family

¶ 85. Gaertner and American assert that 347.48(2m)(c) determining § a violation of Wis. Stat. to negligence per absurd, be se would be because that interpretation penalize operators would fail to who years ensure that minors over absurdity old are buckled. The according arises, and her Gaertner insurer, subsection, when one reads another Wis. Stat. 347.48(4)(a)2, requiring § use a child restraint system years passengers for minor between and age. failure to com- That subsection further states that negligence." ply itself constitute Holcka "does not by contending respond her insurer language found in Stat. absence of the Wis. 347.48(2m) 347.48(4)(a)2, § § from Wis. Stat. leads to "inescapable conclusion" that a violation of sub. (2m) negligence per does constitute se. argument persuasive. I Holcka's is more

agree phrase of the "does not itself that the absence 347.48(2m), negligence" § from Wis. Stat. constitute para- "[t]his presence phrase with the of the combined graph does not affect the determination of causal 347.48(2m)(g) negligence action," in in the demonstrate intent a viola- legislative recognize 347.48(2m)(c) tion of Wis. Stat. as se. per that a Whether this court would also conclude violation 347.48(4)(a)2 of the Stat. con- duty by Wis. imposed § stitutes common law negligence, despite limiting subsection, of that is a for another language question view, unjust In it would be not to liabil- day. my impose when, on the ity host driver violation of Wis. Stat. 347.48(2m)(c), in light and of "the realities of the fre- § quency automobile accidents and the extensive they cause, of seat general availability belts, and the that riders and public knowledge drivers "5 safety,' should 'buckle Gaertner her up operated reasonably believing vehicle without that her 11-year old was restrained a passenger by safety belt. sum, In I 87. conclude that

¶ 347.48(2m)(c) safety is a statute. There is no dispute that Gaertner violated the duty stat- imposed ute she her when vehicle without operated reasonably that Justin believing safety was restrained a belt. Once Justin injuries beyond received those he would have sustained had he restrained, been Gaertner's con- duct became negligence per civilly se. She is liable Justin's damages.

III. 88. The failed to majority engage an analysis 347.48(2m)(c) of whether Wis. Stat. is a stat- ute, out of a fear apparently conclusion such as mine unavoidably would lead to the question contri- driver, bution host not question yet reached by this court. 5Foley City Allis, 475, 483-84, v. 113 West Wis. 2d (1983).

N.W.2d 824 A 89. claim for contribution is from separate claim. See Johnson of the independent underlying (1976). Heintz, v. 286, 295, 73 Wis. 2d 243 N.W.2d 815 it, As the describes there are three majority prerequi sites to a contribution claim: "1. Both must parties be wrongdoers; they must have common joint negligent to the liability person; because of such same one such an party unequal [and] 3. must have borne of the common burden." at Majority op. proportion Sorgi, General Accident Ins. Co. v. citing Schoendorf & (1996). 98, 103, 202 Wis. 2d 549 N.W.2d 429 common exists is deter- "Whether mined at the time the were sustained." Teacher Retirement Texas v. XVI Ltd. System Badger (Ct. Psp., 532, 545, 205 Wis. 2d App. N.W.2d 1996). facts, In several cases involving complicated courts have said that whether there is suffi- Wisconsin cient common a claim for liability support a of fact resolved at question properly contribution is trial. See Teacher Retirement System, 205 Wis. 2d at Co. v. Cas. 546; State Farm Mut. Auto. Ins. Continental (1953). Co., 493, 497, 264 59 N.W.2d 425 In this Wis. case, trial, the parties' stipulation there was no but negligent causing that Holcka was provided accident, and I conclude that the facts as stipulated6

6 case, It is somewhat unfortunate where far-reaching con questions court is asked to decide of law with jury sequences, we do not have determination stipulated by the only and but have the limited facts as parties agree solely by caused parties. The did the accident was They agreed percent conduct. also that 75 of Justin's Holcka's safety and 25 were caused the failure to use a belt operation of her percent were caused the accident. Gaertner's reasonably believing ensuring or that Justin vehicle without wearing percent caused 70 of his enhanced was belt

473 negligent per demonstrate that Gaertner was se for (2m)(c). violating Further, 347.48 it is Wis. undisputed that the conduct of both Holcka and injury resulted in to Justin. Gaertner Family dispute ¶ 91. and American Gaertner liability case, that there can be common in this because failure Gaertner's to ensure that Justin was restrained However, did not cause the accident. I conclude that liability negligent common can exist when one of the injury, tortfeasors caused the accident and some and negligent negligently the other tortfeasor caused addi- injury tional at the same time.

¶ 92. In we listed a of exam- Schoendorf, number ples joint liability, though even there was some separation example, in time of the acts. For analysis we cited the in Butzow v. Wausau Memorial Hosp. 281, 288-289, 51 Wis. 2d 187 N.W.2d 349 (1971)(original physician jointly tortfeasor and and severally only aggravation damages), liable (Second) (1979)(discussing Restatement of Torts 879 jointly situations where the tortfeasors can be liable only aggravation injuries; for the of initial in other jointly situations, the tortfeasors can be liable for the harm). The entire Farrell court also cited Sumnicht v. Toyota Sales, U.S.A., 338, Motor 121 2d 360 (if (1984) N.W.2d more than one tortfeasor contrib- injury, joint uted to the the law of and several applies); Gussarson, and Arbet v. 551, 557, Wis. 2d (1975) (holding impor- N.W.2d that it was not design tant the automobile's defect did not actually long accident, cause the initial as as it was a injuries safety due to the failure to wear a according belt. Also to stipulation, safety Justin's failure to wear a belt caused 30 percent injuries of his enhanced due to the failure to wear a safety belt. tank gas in burn after causing injury

substantial factor Farrell, In 151 Wis. 2d at 60 n.3. enhance- See erupted). is cases, jointly "the successive tort-feasor not ment claimant, but only for all the to injuries liable the tortious conduct over those caused injuries occurred or that would have damage injury above the the successor tort- a result of the accident absent as Farrell, 2d at 61. conduct." 151 Wis. feasor's to its denial of a right 93. to bolster Attempting that, case, contribution, majority observes for the bulk of Justin's would end liable up Gaertner that her conduct the fact damages despite recoverable and not the injuries, belt related only safety caused result, This driver leaving initial impact. is Koldeway's damages, appar- of 40% responsible the seat that persuade majority sufficient to ently an affirmative action cannot "be used as belt defense at 455. Majority op. for contribution." Gaertner Finding I am not so persuaded. out of "wholly she caused is not liable for the Senecal, v. her see Rockweit culpability," proportion (1995), when the 409, 426, 541 N.W.2d 742 197 Wis. 2d demonstrates already stipulation parties' Justin's for 70 responsible percent Gaertner related injuries. belt recognize hesitation majority's 95. The fear that also seems founded on

claim for contribution his or her driver will somehow avoid the defendant seat belt defense "[U]se of the responsibility. financial can of action for contribution affirmative cause an liability by reducing landscape alter the drastically regardless financial responsibility, defendants' overall to the defen- is attributable the amount of fault at initially." Majority op. the accident causing dant for the defen- continues, "Regardless The majority responsibility causing original dant's accident, (host's) properly passenger failure to restrain a could almost eliminate the defendant's financial responsibility altogether." Id. my recognizing right

¶ 96. In view, a to contribu- permit tion in this case does not Holcka and her insurer responsibility. Allowing to avoid their financial contri- give any bution will not the defendant driver obliga- unwarranted "discount" on his or her financial tion. When contribution paying damages allowed, is the burden of distributed, not shifted. See Transport Pachowitz v. Milwaukee & Co., Suburban (1972). 383, 387, Wis. 2d 202 N.W.2d 268 When contri- injured passenger allowed, bution is minor is still (subject made whole to the maximum 15% reduction of 347.48) damages recoverable under Wis. Stat. negligent respon- host bears his or her share of the sibility safety injuries only.7 for the belt related Equitable concerns are satisfied. Moreover, whether passenger's safety the minor belt related are substantial or minimal makes no difference as to right Appellate whether the to contribution exists. questions courts decide of law law, based on the and not palatable on outcomes.

7Presumably majority's under reasoning, this court recognize any would not host damages because of the host driver's failure to ensure that his passen or her minor ger was safety Thus, restrained belt. an effect of the majority's reasoning is that if the passenger minor is less than 7 years old, but more neighbor than and the transporting him or her had failed to ensure the minor was restrained safety belt, the minor will never percent recover more than 85 safety his or her belt related though even he or she could not contributorily have been as a matter of law belt. See Wis. Stat. § 891.44. failing to wear a side of wrong focuses on the The majority had testimony, to the According expert the proportion. ensured the statute and driver with complied the host restrained, the bulk of her minor was passenger that the not occurred. Unless would have Justin's contribution, he or she is is entitled to driver defendant s recov- for the plaintiff responsible disproportionately inequitable. is disproportion This damages. erable that Wis. the concedes Ultimately, majority the not contribution preclude 347.48 does Stat. § states, the seat belt defense it ". . . host driver when determination affect the not, strictly speaking, does personal injury..." in action for negligence any causal recog- reluctance to at 456. The majority's Majority op. in part in case is based contribution nize a right decide should legislature the on the perception has Indeed, already the legislature that question. "seat belt amendments to the several Despite decided. neg- Causal has not been law," precluded. contribution driver, defendant first. The is determined ligence Gaertner, are driver, the host Holcka, negligent causally negligent. both misinter- concurrence Bradley’s Justice the not hold that Foley decision. does Foley

prets driver) (the immunized negligent tortfeasor primary see negligence," of their full consequences "from the that a plain- but instead holds at concurring op. in on failing put contributory tiffs of recover- to reduce the amount should act safety belt discussed damages The reduction of damages. able in Wis. Stat. and codified and altered Foley, driver's negligent affect the does not 347.48(2m)(g), dam- belt related safety initial and for both liability Pursuant ages.8 statute, to the a plaintiffs safety belt negligence does not a negligent diminish driver's liabil- ity, it diminishes 15% the amount of safety belt related can plaintiff recover. See Wis. 347.48(2m)(g). The concurrence errs it when advances the theory belt negligence extin- guishes of the liability driver for the negligent safety belt related injuries to the plaintiff. 100. The concurrence states paragraph

that, post-Fo/ey, legislature "exposed the initial tortfeasor seat belt injury." Despite the earlier concurrence, discussion it effectively now concedes that the legislature made the negligent has driver liable for enhanced injuries, thereby making negligent driver and the host driver joint tortfeasors. The concurrence reads the to be stipulation one in which the have parties agreed to disregard what would a joint be and several liability for the seat belt related injuries between Gaertner and Holcka under law, current and to artificially create a successive tortfeasor status between I them. disagree. The stipu- lation that, does not and say the parties did not argue that. In case, 101. the parties stipulated

Holcka is solely responsible for the Therefore, accident. under she Foley is liable for 100% of the recoverable damages. The parties also stipulated that 75% of the

8The changed theory statute has the Foley, as at least part may of that decision be read. See 113 Wis. 2d at 489. As the it, Foley concurrence reads eliminated negligent of the any driver for safety of the damages. belt related Wisconsin 347.48(2m)(g) Stat. effectively puts negligent the driver's lia bility in, merely back and places ceiling a on how much the plaintiff s failure to safety wear a belt can limit his or her recov damages erable injuries. for enhanced failure to a total were caused Justin's wear injuries the can cases, only plaintiff In most be safety belt. In failing safety found for to wear belt. negligent to cases, negligent failing those is 100% plaintiff Here, a minor so the passenger par- we had up. buckle up "safety ties then to divide belt stipulated related as follows: of the belt negligence" safety 70% were caused Gaertner's and 30% "safety Justin's Justin's negligence. were caused subject belt becomes negligence" the total amount of recover- reducing 347.48(2m)(g), Since Holcka and damages by able enhanced 15%. remain and liable for the jointly severally Gaertner and her insurer are belt related Holcka injuries, entitled to contribution.

IV. looks to a forfeiture Finally, majority legislature, as an indication that while provision their minor passen- motorists to ensure that requiring belts, intended that by safety are restrained gers that statute be a only consequence violating $10 relies on the exis- majority mistakenly forfeiture.9 The manifest a legislative tence of the forfeiture statute to out of arising intent actions for contribution preempt minor passenger failure to ensure that a n.6; at 452 453-54. majority op. See up." "buckled on a forfeiture By relying provision reduction in total recoverable the 15 percent here, is no of contribution right to conclude there and and oranges ignores legisla- mixes majority apples ranges $10 $200 amount of the forfeiture from The at the time of the age passenger of the minor depending on case, apply In this amount would because $10 violation. years of the accident. Justin was 11 old at the time Further, tive intent. analysis the majority overlooks the existence of other forfeiture provisions arising code, from the motor vehicle which in no way See, limit the trial of negligence e.g., issues. Wis. Stat. 347.06, 347.09 requiring lighted before headlamps § operation; 347.14, Wis. Stat. requiring lamps stop § working vehicle; order before Wis. Stat. operation 347.245, requiring of slow display moving vehicle emblem vehicles; before of certain and operation 347.30, forfeitures of imposing $10 $200 violations of lighting provisions or display provisions. 104. Under of the reasoning majority, an injured minor like Justin can recover from Koldeway the negligent driver 100% of his or her damages, minus 15% of his or her safety belt related The host damages. driver, who failed to ensure that the minor passenger restrained, was pays State, forfeiture to $10 is free from all for the safety belt related inju- ries that he or she caused. This result cannot be what the legislature intended. reasons, 105. For the foregoing I respectfully

dissent. I am authorized to state that Justice Don-

ald Steinmetz joins W. in this dissent.

Case Details

Case Name: Gaertner v. Holcka

Court Name: Wisconsin Supreme Court

Date Published: Jun 26, 1998

Citation: 580 N.W.2d 271

Docket Number: 96-2726

Court Abbreviation: Wis.