Richards v. Badger Mutual Insurance

Michelle Richards, Plaintiff-Respondent-Petitioner,

v. Badger Company, Mutual Insurance Defendant-Third-Party Plaintiff-Appellant, Defendant-Third-Party Plaintiff, David Schrimpf,

v. Third-Party Defendant. Tomakia Pratchet, Court Supreme 4, argument October Oral No. 2005AP2796. 3, 2008. June —Decided 2008 WI 581.)

(Also N.W.2d reported C.J., dissents. AbRahamson, Jr, JJ., join.

BRAdley Butler, plaintiff-respondent-petitioner there were For Murphy, by R. Stachowiak and James J. Keith briefs argument Murphy Prachthauser, Milwaukee, and oral & by Keith R. Stachowiak. defendant-third-party plaintiff-appellant

For Darling Schmidt, Eric there was brief S. argument by Darling Milwaukee, Eric Erwin, and oral & Darling. S. by Ralph Weber, A. amicus brief was filed

An curiae Ermatinger LLC, WeberMullins Hanan Gass Beth argument by Ralph Weber, A. on Milwaukee, and oral Trial Counsel of of Civil Wisconsin. behalf by An amicus curiae brief was filed James A Fried- man, Godfrey Joshua P. Dau and S.C., & Kahn Madi- son, on behalf of the Wisconsin Insurance Alliance and Property Casualty Insurers Association America, of argument by and oral James A. Friedman.

An amicus curiae brief was filed William C. Gleisner, III, Academy on behalf of the Wisconsin Lawyers. Trial

¶ 1. PATIENCE DRAKE ROGGENSACK, J. We are asked appeals review decision of the court of that reversed the circuit court's decision,1 which con- stipulated cluded present that the facts this case plan" "common scheme or that invokes and several 895.045(2) (2005-06).2 under Wis. Stat. We appeals. affirm the court of (1) ¶ 2. We conclude as follows: Wis. Stat. legislative is the codification of the con- liability; certed action in this consumption case resulted point from the of beer to the subsequent of intoxication and the decision to drive (3) although while intoxicated; and Robert Zimmerlee, Schrimpf, David and Tomakia Pratchet acted "in accor- plan" procure dance with a common scheme or beer, they consuming did point not so act in beer to the subsequent driving intoxication and in the act of while Schrimpf intoxicated, jointly and, therefore, David is not liable under for the death Accordingly, Badger Chris Richards. Mutual Insurance Company making any payment is relieved from further to Michelle Richards.

1 The Honorable Patricia D. McMahon of Milwaukee County presiding.

2AJIfurther references to the Wisconsin Statutes are to the version, 2005-06 unless otherwise noted.

I. BACKGROUND teenagers "get ¶ An idea to ill-conceived between tragedy evening in next one culminated the some beer" morning Zimmerlee, 19, intoxicated Robert when an sign stop stop into to for a and smashed the driver's failed killing Christopher in- vehicle, Richards' him side of stantly. (Richards), sought wife, Chris' Michelle Richards damages. initially pursued She to recover against parties and claim Zimmerlee his insurer. The Pierringer3 $1,312,500,4 Zim- on a basis for and settled appeal. party not a to this After merlee therefore brought settlement, then Richards wrongful she received Schrimpf, against death David who action 'Schrimpf passenger car, and s in Zimmerlee's was Badger Company, pursuant insurer, Mutual Insurance alleged Schrimpf that to illegally procured Stat. 895.04. Richards Wis. consump-

beer that Zimmerlee's Christopher Richards' tion of beer resulted joined wrongful Schrimpf Pratchet, Tomakia death. Schrimpf, purchased beer for Zimmerlee who litigation. parties stipulated 4. The have facts leading this case. Events prior to the accident unfolded Schrimpf evening, decided and Zimmerlee when Schrimpf employed "go get some beer." was at a West co-workers, said of his restaurant, Allis and he that one purchase Pratchet, the beer for them would be able of-age. she was because together Schrimpf Zimmerlee and drove working

Schrimpf employer, that s where Pratchet was 3 182, 124 Pierringer Hoger, 21 2d N.W.2d v. (1963). damages equal that total parties stipulated Richards'

$1,785,714.29. Schrimpf spoke

evening. entered and with Pratchet purchasing beer about her for him Zimmerlee. spoke agreed. Schrimpf Pratchet also with another Spencer, Schrimpf co-worker, Jennifer who invited ato party evening. at her home Schrimpf, the restaurant, 6. From Zimmerlee, together nearby grocer, and Pratchet traveled to a purchased 18-pack where an Pratchet of beer for Zim- Schrimpf money provided. merlee and with Zimmerlee dropped stop The two Pratchet off a bus at and Zim- Schrimpf separate ways merlee and went their remaining hours, several the beer Zimmerlee's car. evening, Schrimpf

¶ 7. Later that and Zimmerlee 18-pack reconnected, tow, in and at arrived Spencer's party midnight between 12 and a.m. 1:00 Schrimpf While drank the beer, "some" of Zimmerlee "maybe consumed half' of the 18 beers. approximately a.m., 8. At 7:30 the left duo Spencer's party. Schrimpf passenger sat in seat, and They proceeded Zimmerlee took wheel of car. his only colliding half a block before with Chris Richards' vehicle. days

¶ 9. commence, Two before trial set to was parties agreement. By entered into a settlement agreement, jury terms of that settlement trial was agreed parties judge waived and the to allow the circuit question Schrimpf, to decide the Zimmerlee, whether and Pratchet acted accordance with a common plan damage scheme or that caused to Chris and Michelle Richards. The circuit court answered that question parties jointly in the affirmative and held the severally damages. and liable for Richards' dispute

¶ 10. is no There that Zimmerlee was negligent operation in the vehicle his and that his negligence death of the accident and cause of was a dispute that the beer is also no Richards. There Chris causing and the the accident factor a substantial was "providers" Schrimpf and Pratchet were Both death. beverages as defined Wis. Zimmerlee, alcoholic negligent under therefore and were Stat. 125.07(l)(a)l. Stat. agreed apportionment parties also 11. The among Zimmerlee at 72 them: of causal percent; percent; Schrimpf and Pratchet at at 14 stipulated parties percent. to Richards' negli- Schrimpfs combined causal and Pratchet's that gence damages, or total $500,000 resulted agreed parties Accordingly, that Ri- each. $250,000 Schrimpfs paid share $250,000, as chards to be was damages, regardless of this of the outcome the total concluded in this case If the final court decision lawsuit. parties with common did not act accordance that the damages, plan in Richards' that resulted scheme percent of the dam- the 14 not receive Richards would ages unpaid. however, it concluded If, was remained parties common with such did act in accordance that the damages, then Richards' that caused scheme or Schrimpf jointly be Pratchet would thereby Schrimpf, therefore, and and, to Richards liable pay required an Badger Richards to Mutual, would be of the dam- the remainder $250,000 to cover additional ages. parties dispute is whether

¶ 12. What give foregoing stipulated and several facts rise 895.045(2). parties § con- The under Wis. Stat. Schrimpf, acted Pratchet Zimmerlee, and test whether plan that resulted common scheme with a accordance damages, used terms are those as in Richards' 895.045(2). 549 appeals ¶ 13. The court of concluded that parties jointly were not and liable under Wis. damages. Stat. for Richards' It held that, although parties agreement purchase "had an agreement alcohol," that did not include Zimmerlee's driving while intoxicated, which resulted the dam ages. Badger App Co., Richards v. Mut. Ins. 2006 WI ¶ 255, 27, 699, 297 Wis. 2d 727 N.W.2d 69. Richards petitioned granted. review, which we

II. DISCUSSION A. Standard of Review hinges

¶ 14. The outcome of this case on the inter 895.045(2). pretation application of Wis. Stat. interpretation application questions of a statute are independently, benefiting of law that we review "but analyses appeals from the of the court of and the circuit Regents Sys., court." Morder v.Bd. the Univ. Wis. 159, 19, WI Wis. 2d 706 N.W.2d110. B. The Parties' Positions parties posit 15. Both that Wis. Stat. unambiguous; they however, offer differ-

ing interpretations applications of it under the turning facts before us. Before to a discussion of the language of statute, it is instructive to recount briefly parties' respective arguments. position

1. Richards' argues parties agree 16. Richards that the Schrimpf, Zimmerlee, and Pratchet acted in accordance purchase with a common scheme or beer. She agree parties that "as a result of that the also asserts pursuant [Zimmerlee] bought drinking for beer joint plan, Schrimpfs Zimmerlee his scheme by his vehicle." the intoxicated use of Mr. Richards killed stipu- parties that the have Further, Richards asserts factor in the cause beer was a substantial lated that the Judge refers to Fine's death. Richards Richards' Chris argument: presentation The of her as a succinct dissent stipulated require that Rich- the conclusion Chris facts by if Zim- killed Zimmerlee not have been ards "would drinking alcohol drunk as a result of merlee had not been [bought] Richards, 2d 297 Wis. for him Pratchet." (Fine, dissenting). contends that J., Richards plan that falls facts evidence a common scheme those 895.045(2), resulting § Stat. within Wis. three defendants. for all

several argues cannons Furthermore, that Richards statutory interpretation preclude this court's consid- 895.045(2), § "Concerted Stat. of the title of Wis. eration argues interpreting the statute. Richards action," when plain face, it is on its the statute is that, because improper extrinsic sources to consider court interpretation, law and because Wisconsin facilitate its part provides statute, titles of statutes not that § source. is an extrinsic the title to regard argument import in this is two- Richards' (1) adopted the concerted action we have not fold: theory (Second) liability, in Restatement as embodied incorporated though into it is 876, even of Torts Jury attends Instruction Wisconsin 895.045(2). misnamed, Therefore, so-called, but 895.045(2) pro- predate cases" that "concerted action interpreting guidance statute; and no vide not alter the law Wis- did enactment of predicated on whether causal consin that causing an act or omission is a substantial factor in stipulated Here, harm. it was that the beer was a causing substantial factor in the accident that killed Chris Richards. Badger position

2. Mutual's response, Badger argues 18. In that, Mutual correctly while Richards asserts that the statute is unambiguous, misapprehends Richards nevertheless meaning. Badger First, the statute's Mutual contends theory that "Concerted action" is the title for the liability § 895.045(2), described in Wis. Stat. as shown Badger argues the discussions in Wisconsin cases. that because the concerted action §in embodied is the concerted action re- (2) requires ferred to in law, Wisconsin case subsection parties equal negligence. that all quently, have causal Conse- parties stipulated apportion-

because the negligence among Schrimpf, ment of causal Zimmerlee, Pratchet, their to Richards falls within (1), § subsection not within subsection of 895.045. Badger acknowledges Second, Mutual Schrimpfs while conduct was a substantial factor in causing accident, it did not also constitute concerted required action, as is before it falls within Wis. Stat. 895.045(2). Badger Mutual contends that the Restate- (Second) ment of Torts 876 and the common law regard support position. Badger to concerted action its plan Mutual contends that the common scheme or purchase damage beer did not Chris It Richards. was driving the reckless while intoxicated that resulted in damage to Chris However, Richards. the reckless driv- ing part was not of a common scheme or in which Schrimpf, participated. Zimmerlee, and Pratchet Ac- cordingly, Schrimpfs liability it concludes that to Rich- 895.045(1), parameters not ards falls within (2). subsection those of Interpretation Wis. Stat.

C. principles

1. General Statutory "begins interpretation language ex rel. Kalal v. Circuit of the statute." State County, ¶58, 45, 271 Wis. 2d 2004 WI Court Dane (quoting O'Connell, 2000 v. 633, 681 N.W.2d110 Seider 659). ¶ 43, 211, 2d 612 N.W.2d We 76, 236 Wis. WI expressed meaning in the of a statute is assume that the legislature ¶ Id., 44. The context chose. words the important language appears operative too is the which by meaning may be affected a statute's because legislature the words chosen context which language ¶ If focus on the statute's Id., 46. our used. ambiguity, meaning, yields plain, then there is no clear plain according applied terms. Id. to its the statute is statutory language unambiguous, it is unneces is If the interpreta sary to facilitate consult extrinsic sources tion. Id. being "capable

¶ However, if a statute is 21. persons by reasonably in two well-informed understood ambiguous. Id., is senses[,]" then the statute or more may ambiguous, resort to ¶ we a statute is 47. When history, legislative to assist sources, such as extrinsic meaning. ¶ understanding Id., 48. the statute's our history Statutory 2. statutory history part is A review history Statutory meaning analysis.

plain Id., enacted and encompasses previously repealed provi- sions of a statute. By analyzing changes legisla- ture has made over the course of several we years, may be assisted in at the arriving meaning of a statute. Id. Therefore, statutory history part of the context which interpret we the words used in a statute. Accord- ingly, we examine the statutory history that underlies the current version of Wis. Stat. 895.045. 23. The early common law rule of contributory

negligence that existed prior when the prede cessor to Stat. enacted, was required that any of a contributory was a plaintiff Ludtke, bar to complete recovery. Brewster v. 211 Wis. (1933). 344, 346, 247 N.W. 449 law, Also at common rule, several was the such that when tortfeasors caused multiple injury to a who was plaintiff not contributorily negligent, plaintiff could recover his or her entire from any tortfeasor. Group Health Claire v. Hartland Coop. Cicero Mut. Ins. of Eau (Ct. Co., 164 632, 634-35, Wis. 2d 476 N.W.2d 302 App. 1991). In 1931, 24. the legislature established statu

¶ tory comparative This negligence.5 change the law permitted a who plaintiff was contributorily negligent to recover if his or her was less negligence than the of the negligence from whom person recovery Hartzheim, was sought. Lupie v. 54 415, 416, Wis. 2d (1972). 195 N.W.2d However, 461 the of com adoption parative negligence did not change the common law joint rule of and several for the liability tortfeasors. Walker v. Kroger Grocery Co., & 214 Baking 519, Wis. (1934). 535, 252 N.W. 721

5 (1931); 242, § Wis. Stat. 331.045 ch. of Laws 1931.

554 legislature 1971, renumbered the In the negligence comparative statute to Wis. Stat. 895.045. permit plaintiff a not more It continued to negligent who was recovery defendant from whom was than the damages, by sought the amount to recover reduced negligence.6 again, change plaintiffs Once this did joint not affect the common law rule of and several liability. Group Health, Therefore, 2d at 637. comparison involving multiple tortfeasors, suits any negligence plaintiff that of tortfea- sor continued to damages7 made and the full amount of be any

could be recovered from tortfeasor who though negligent plaintiff, was more than the even negligent may second tortfeasor have been more than recovery sought. Mat the tortfeasor from whom was Safety Mfg. Co., ¶ 10, 244 82, thies v. Positive 2001 WI 720, Wis. 2d 628 N.W.2d842. 895.045 26. The current version of Wis. Stat. by created 1995 Wis. Act 17. That Act amended

was comparative negligence in and created subsection (2). (1), legislature In chose to subsection subsection joint liability significantly change the law of several by limiting the circumstances under which applied. The relevant could be Id. several provides: portion negligence. .. . The Comparative against neg- separately be measured plaintiff shall causally negligent. ligence person of each found to be causally negli- person found to be of each negligence is less than gent percentage whose of causal (1971); 47, ch. Laws of 1971. Wis. Stat. 895.045 always first reduced plaintiff The amount due the was v. plaintiffs negligence. See Matthies Positive percentage 720, Co., 10, 628 N.W.2d 244 Wis. 2d Safety Mfg. 2001 WI 555 percentage is limited 51% the total causal person. negligence person attributed to that A found to causally negligent percentage negli- be whose of causal gence severally jointly is 51% or more shall be and damages for the liable allowed. (1), contributorily negligent

Under revised subsection precluded recovering plaintiff is from more of his or her damages from a tortfeasor than the tortfeasor's causal negligence. bears to the total causal Id. For joint tortfeasors, those common law rule of and Only abrogated. several is See id. when a causally negligent percent at tortfeasor is least will jointly severally the tortfeasor be and liable for all compari- attributed to all tortfeasors in the (1). many Therefore, sons made under subsection involving joint contributorily cases tortfeasors and a negligent plaintiff, longer joint there no several liability. amending In Wis. Stat. 895.045 in (2). legislature also created subsection This subsec- joint

tion retains the common rule of law and several liability in the circumstances described the statute. (2) provides: Subsection (1), Notwithstanding if

Concerted action. sub. 2 or parties more act in accordance with a common scheme plan, parties jointly those liable for damages resulting action, except pro- all from that as 895.043(5).8 vided in s. (2), legislature

Subsection which the chose to title joint action," "Concerted retains common law rule of liability, and several if "that action" is taken in accor- plan resulting dance with a common scheme or provides: Wisconsin Stat. "The rule of apply punitive damages." several does not damages. demonstrating legislative However, while significantly joint choice to reduce the occasions where liability may statutory and several be awarded, the § history underlying 895.045 not does the mean- resolve ing plan" terms, "common scheme or and "that "resulting" action" that are before us in this light review. Nor does it shed on the title of subsection (2), However, "Concerted action." it does inform us that legislature proscribe meant to the occasions for imposition joint liability.9 and several Ambiguity urges interpret

¶ 28. Richards us to Wis. Stat. 895.045(2) § applies persons engaged such that it to plan accomplish a common scheme or a result that in ultimately combination with other acts causes harm. Richards asserts that common law concerted action is legislature not what the meant to describe in subsection (2). Badger Mutual contends that the action that causes the harm must be undertaken to facilitate the common plan10 embody scheme or and that subsection does 9 The Academy amicus brief of Lawyers Wisconsin of Trial Accessories, Inc., Fuchsgruber 81, cites v. Custom 2001 WI 758, 833, Wis. 2d support N.W.2d as for its assertion that 1995 amendments to Wis. Stat. 895.045 did not intend to change the common law rule of liability. several Fuchsgruber Reliance on proposition misplaced. is Fuchsgruber explained products liability that a claim for strict law; therefore, is not a action under the common 895.045(1) because negligence, application involves it no has products liability. Id., to claims of strict 1-3. ¶¶ 10 Badger position Mutual's is similar to that of the court Stat; appeals, which concluded that applies " persons engaged in 'a accomplish common scheme or injures plaintiff....'" result that Badger Richards v. competing inter- action. These concerted common law pretations and the title of the terms They interpretations. indicate that reasonable both by reasonably being "capable of understood is statute persons more senses" and two or well-informed ambiguous. Kalal, 271 Wis. 2d therefore ambiguous stat- an confronted with 29. When help may to uncover extrinsic sources ute, resort to we history legislative meaning. ¶ 48. The Id., the statute's to the creation of subsection that relates now available (2) sparse. However, the 895.045 is of Wis. Stat. Analysis Legislative of an Reference Bureau earlier. changes that were in 895.045 of the 1995 version eventually enacted states: sys- comparative negligence the

This bill modifies negli- requires that the ways. in The bill tem several against separately measured gence plaintiff be bill, joint joint Under this each of the tort-feasors. liability percentage limited to the tort-feasor's is party. to that negligence attributed total causal changes in the rule of specifies that the bill liability apply parties whose joint do not to and several in ... concerted action results Analysis by Drafting 17, Act File for 1995 Wis. Legisla- Legislative 11, Bureau of 1995 S.B. Reference analy- Madison, The LRB's Bureau, tive Reference changes supports the 1995 to our conclusion that sis § change significantly the com- 895.045 were meant that had and several mon law rule of past. applied However, in actions 25, 699, Co., 255, 297 Wis. 2d 727 App Mut. 2006 WI Ins. original). (emphasis N.W.2d69

558 legislative history provides guidance limited with re- spect statutory terms in subsection that we interpret. must part according 30. The title not of a statute § 990.001(6); may

Wis. Stat. however, it be used to understanding meaning. assist in a statute's Brennan v. Employment Comm'n, Relations 112 38, 41, Wis. 2d (Ct. 1983). App. N.W.2d 667 We note that the title to Wis. Stat. is "Concerted action." Concerted action is a from comes key legislature law, common as do words the chose to (2), plan." use subsection such as "common scheme or Accordingly, we review Wisconsin's common law and guidance the learned treatises cited therein for (2). interpreting the title and See, terms of subsection e.g., Hogner, ¶¶ Strenke v. 25, 15, 16, 19, WI (explaining Wis. 2d 694 N.W.2d296 that the words legislature used in Wis. Stat. derive large part from the law; common therefore, helpful statutory review of the common law to interpretation). appellate

4. Wisconsin decisions published ¶ appellate opinions po 31. Four offer guidance meaning tential on the of Wis. Stat. 895.045(2). Bldg. Supply, v. Inc., Danks Stock 2007 App Bruttig 8, WI 298 348, Wis. 2d 727 846; N.W.2d v. (Ct. 1989); App. Olsen, 154 2d 270, 453 N.W.2d153 Lilly Co., Collins v. Eli 116 166, Wis. 2d 342 N.W.2d37 (1984); Ogle Avina, v. 125, Wis. 2d 146 N.W.2d (1966). provides only

¶ interpreta- 32. Danks the briefest 895.045(2). tion of Wis. Stat. There, for a personal injury injured was at issue. Danks was while

assisting supervisor a a truck his load truss onto belonging truss, Stock to the manufacturer of Supply. Building ¶ Danks, 1. 298 Wis. 2d Stock Supply specific Building given instructions had written lifted manner used at truss not to be in the that the was ¶ Id., 6. the truss failed time of the accident. When injured. improper lift, it fell Danks was due to the ¶ Id., 13.

¶ under which he 33. Danks had several theories Building Supply. attempted impose on Stock liability, action of those theories was concerted One lifting truss Danks that the was which contended in accordance with a common scheme or undertaken plan pursuant 895.045(2). ¶ Id., 38. Stat.

to Wis. appeals concluding Stock court of ing Supply decision that Build- the lack of

was not liable turned on an Building Supply. act affirmative Stock Id., 22. interpret However, Danks does Wis. Stat. only pertaining as who take tortfeasors Id., discuss

concerted action. Danks does not meanings of "Concerted action" or "common scheme or plan," it that those act "in concert" but does note who (2): parameters come within of subsection will (1) of simply modifies Subsection subsection provide legally all are statute defendants who plaintiffs damages, and responsible causing who doing, jointly acted concert in so plaintiffs damages, irrespective liable for the negli- given apportioned causal whether defendant's gence is less than 51%. "§

Id. Danks continues to conclude that given plays no role to determine a defendant whether original). may (emphasis Id., held be liable." Rather, a defendant must be liable before subsection (2) may applied. otherwise, Id. Banks deter- be Stated not claim mined that subsection does create a applies only relief, but instead when a defendant is already liable for under the substantive law. causally greater negligent is, That he or she is plaintiff; addition, extent than the and in he or she participated in in the concerted action that resulted damages. plaintiffs ¶¶ Id., 39-40. precedes and the 35. Collins Danks 1995 revi-

sions of Wis. Stat. 895.045. There we discussed con- theory action and relied on the certed as theory by explanation of that Professor Prosser. Col- explained lins, 116 2d at 184. In it we that: theory upon The concerted action rests who, principle pursuance that "those of a com- act, design actively commit a mon or tortious it, by request, part cooperation take or further it or encouragement wrongdoer, lend aid or or who benefit, ratify adopt his acts done for their Express agreement not equally liable with him. is necessary, required and all that is that there be a tacit understanding." (quoting Prosser,

Id. W. Handbook The Law Torts 1971)). (4th However, declined to 46, at 292 ed. we plaintiff, apply the concerted action when sought damages from former manufacturers who (DES) aggressive drug diethylstilbestrol that caused an identify specific cancer, form cervical could not the DES that taken her mother. manufacturer of was Id. at 186. explained that the concerted action 36. Collins agreement among parties.

theory required Id. at an allegation of Collins was that the "defendants 185. The give [DES] adequately or to sufficient test failed warning[s] dangers." that there had of its Id. We noted parallel "a amount of action been substantial marketing producing DES" but that and defendants activity 'acting of in concert.'" did not "rise to level agreement concluded because there was no Id. We so inadequate, testing warnings that the would be "agreement" type that would have been it was that required of plaintiffs to show action caused concerted harm. Id. analysis. helpful is to our For ex- 37. Collins subject specificity

ample, the of the matter of the plan in Collins that we concluded was neces- common theory liability sary support the concerted action of important specificity to our consideration of the of the subject matter of the common at issue the case is, the action that harmed Collins must before us. That been that was undertaken to further the have which drug companies' agreement. addition, Id. In Collins equated action," "concerted the title of Wis. Stat. plan," "pursuance of with a common terms (2). employed in the text of subsection Id. at 184. Bruttig topic also tackled of concerted plaintiff, Bruttig action. There the Brian who was a engaged game minor, minors, friends, and two also tag." injured recovery Brian was "snowmobile liability greater was denied because his was than that of Bruttig, either of the other two tortfeasors. 2dWis. appeal, argued at 273. On Brian that he and the two negligent equally tag defendants were "because the game created a situation of mutual stimulation where negligence participant entirely [was] of each inter- related with that of the others and therefore each charged should be the causal appeals recognized other." Id. at argument court of theory as the of concerted action jury permitted apportion would not be which "the (citing damages." Prosser, Handbook The Law Id. W. (4th 1971)). ed. Torts at appeals noted that the con- 39. The court "explic- never been certed action has itly adopted" in at 280. It also noted that Wisconsin. Id. theory liability in the had not raised this of Brian rejected argument Therefore, circuit court. it his apply appeal. at 281. it on Id. Bruttig's helpful,

¶ discussion is as it reviews 40. boys concert," in Brian's claim that the three "acted terms are similar to the title of subsection which (2): Bruttig acknowledges that the action." "Concerted separate theory theory proffering "a of that Brian is is liability, This is that 'concerted action.'" Id. at 280. 895.045(2) requires significant Wis. Stat. because may proof separate for one who of a (1), already in order to be a tortfeasor under subsection liability. joint Banks, 298 2d accord and several (2) plaintiff requires a is, That subsection prove "in that the tortfeasor acted accordance with plan" and also that the common common scheme or in the tortfeasor acted accordance scheme or applicable damages. Id. Subsection is not resulted present. every case where tortfeasors case law that 41. Our review of Wisconsin theory touches on the concerted action negli- Ogle. Ogle, In we held that both concludes with "drag equally gent participants liable for in a race" were resulting negligence, their even a fatal collision from though only struck a third of the tortfeasors one causing injury. Ogle, 2d 33 Wis. at 135. automobile racing high Ogle, at a rate In two cars were highway, speed when in the direction down same plaintiffs at car. Id. the lead car collided with holding equally In both defendants liable for 128-30. specifically referencing the collision without "concerted applied principles action," we of concerted action: understanding We think when there is an to reach doing illegal speed a common destination and in so closely together used the cars are driven so as to be tandem, unit, practically or to constitute a that we have a situation of mutual stimulation where negligence participant of each is so related to negligence participants partici- of the other that the pants chargeable negli- should each be with the causal gence speed percentage of the other as to and their negligence equal. causal should be agreement Id. at 135. The mutual to use excessive speed agreed upon to reach an destination formed the basis for the tortfeasors' concerted action. Id. explain Ogle

¶ 43. This court on to went apportioning the usual rule of causal be- negligence tween tortfeasors whose combined or con- causing injury apply curred in does not with "mutual injury fault" for the Rather, that occurred. Id. Ogle in tortfeasors each assumed the fault of the other apportioned equally causal was between Badger argues concept them. Id. equal Mutual that the of sig- fault for in tortfeasors concerted actions is parties nificant to the case before us because have agreed apportioned negligence. to causal Richards relevancy. maintains has it no 5. Learned treatises

¶ 44. Because discussions of the concerted action theory liability of in Professor Prosser's The Law of provided by Torts, as well as those The Restatement (Second) prominent Torts, of are so the cases that theory liability, discuss the concerted action of we interpret- well, before treatises as learned review those 895.045(2). ex- ing applying Prosser's Wis. Stat. action planation the concerted historic context of of the provides: helpful. theory It is of of vicarious meaning.. . was that original in concert to who acted persons action. All for concerted design, of a common pursuance trespass, commit In such case for the entire result. held liable were aid in with mutual purpose, a common there was joint enterprise, so out; short, there was a carrying it act, party, of one coming to do an unlawful that "all being party same the act of all of the act of one is entire dam- liable for the Each was therefore present." all, jury liable for each was age [SJince done .... damages. apportion permitted not be would Page The Law and Keeton on Keeton, Prosser W. 1984) (5th (quoted citations ed. at 322-23 Torts omitted). action for concerted framework

This historic mutuality understanding helpful to our necessary a common agreement to have order that is theory of concerted action under the scheme statutory understanding liability, terms as well as liability. express action the concerted used to (Second) of the Restatement Section 876 helpful. provides: It is also Torts Acting in Concert Persons person from the a third resulting to For harm liability if another, subject one is conduct

tortious he

(a) other or with the in concert does a tortious act him, or design with a common pursuant to (b) conduct constitutes other's knows that assistance gives substantial duty and of breach himself, or conduct other so to encouragement 565 (c) gives substantial assistance to the other accomplishing conduct, a tortious result and his own separately considered, duty constitutes a breach of to person. the third (a):

Comment on Clause acting Parties are they concert when act in agreement accordance with an cooperate particular in a line of conduct or to accomplish particular agreement result. The need not expressed be may in words and implied be and under- stood to exist from the conduct itself. Whenever two or persons more concert, commit tortious acts each subject becomes others, the acts of the as well as for his own acts. The theory early common law was that there agency was a mutual of others, each to act for the which made all liable for the any tortious acts of one. (Second) (1979).

Restatement of Torts at 315-16 (a) The Comment to Clause is particularly in its helpful description mutual agency and that it was mutual agency that made all the actors liable for one another's tortious acts. 46. From our review of Wisconsin cases and treatises,

learned wherein principles concerted action discussed, are terms similar those Wis. Stat. employed the concerted action theory liability is explained, we conclude is the codification of the concerted action The liability. statute is consistent with the concerted action theory as explained by Wisconsin courts11 and in learned treatises such as Prosser's The understanding concerted action as ex plained by appellate Wisconsin courts is consistent with the discussions York appellate New courts. For example, Wadsworth, (N.Y. Blakeslee v. 37 A.D.3d App. 2007), Div. (Second) of Law Torts Torts Restatement of in is those regard supported by Our decision this § when the Wis- question drafting considered this who Civil Instruction 1740.12 Jury consin that Wis. Stat. 47. Our conclusion theory the codification of the concerted action is in law regard does not Wisconsin change a the actions of tortfeasor were substantial whether in harm another. This is so factor sustained causing in parameters order to fit within the because be 895.045(2), already causally must tortfeasor Danks, 298 2d law. Wis. under substantive negligent his or her 348, negligent 39. One is when causally causing injury is a factor conduct substantial applied action as in New York on bases the concerted it, quoted by Professor articulation as was Prosser's York Court in Collins. The New courts Supreme Wisconsin liability, explain that in order to concerted action there establish explicit implicit agreement part on the must have been an Blakeslee, (emphasis alleged wrongdoers. 37 A.D.3d at 1023 all Moreover, original). it 'essential that each defendant tortiously and that charged acting [has] concert acted pursuance defendants committed an act in one of the Galuski, 2 tort. v. agreement which constitutes a Canavan (N.Y. 2003) v. 1039, (quoting Div. Rastelli App. A.D.3d 1041 (N.Y.1992)). Rubber, 222, 591 224 Mere Goodyear Tire N.E.2d more, activity, without is insufficient establish '[p]arallel necessary to maintain a concerted action agreement element Co., Hymowitz Lilly Eli 539 N.E.2d (quoting Id. v. claim. (N.Y.1989)). 1074-75 12 Jury quotes 876 of Wisconsin Civil Instruction 1740 (Second) "Comment to of Torts as well as the Restatement (a)" Moreover, quotes section. the instruction Clause of that Co., 166, 342 Lilly v.Eli 2d N.W.2d Collins description of concerted action. its Cmty.Hosp.,

another. Johnson v.Misericordia 97 Wis. 2d (Ct. 1980). App. 521, 561, Accordingly, 294 N.W.2d501 interpretation § 895.045(2), person under our who is causally negligent regard recovering plaintiff to a proportionate liability § 895.045(1), will have under un something proved less more is about that tortfeasor's bring purview conduct that will it within the of subsec (2). Danks, tion ¶ 348, 298 Wis. 2d 39. Application

6. of Wis. Stat. ¶ possible 48. There are two scenarios under the stipulated arguments facts and the made Richards Schrimpf jointly wherein she seeks to hold liable under Wis. Stat. for her dam- (1) ages: Schrimpf, Zimmerlee, and Pratchet acted in plan procure accordance awith common scheme or beer and damages; that action resulted in her Schrimpf Zimmerlee and acted in with a accordance plan common scheme or to drink to intoxication and then drive and damages. that action resulted her Although Richards interweaves these two scenarios, we independently. will examine them 49. separate Concerted action is a apply that does not to all who are proved causally negligent. to be Danks, 298 Wis. 2d 348, Bruttig, ¶ 40; Page see 154 Wis. 280; 2d at W Keeton, Prosser and Keeton on the Law 46, Torts at 322-23 (5th 1984). Something ed. more than causal required before the actions of a tortfeasor will come parameters 895.045(2). within the of Wis. Stat. Danks, Wis. 2d 40. Concerted action must be proved. necessary predicates

¶ 50. There are three factual proving First, action: there be an concerted must agreement among parties explicit or tacit to act mutually agreed upon plan. accordance with a scheme or Collins, action, 2d at Parallel See without plan. more, is insufficient to show common scheme or Second, must be mutual acts committed Id. there plan furtherance that common scheme or Ogle, Third, acts. 33 Wis. 2d at 135. tortious See accomplish acts that are undertaken to tortious must the acts that result common scheme or damages. be Collins, See 116 Wis. 2d at 184-85. regard Zimmerlee, In actions undisputed they agreed

Schrimpf, Pratchet, and it is that Schrimpf purchase to asked Pratchet to purchase beer. When grocery Zimmerlee her to beer and drove the purchase gave money to her the that she used they common beer, plan." acted "in accordance with a scheme procurement

Their of beer was tortious. Wis. Stat. 125.07(1). 125.035(4)(b); pur- §§ However, after that nothing to do the beer. chase, Pratchet had further a bus an unnamed location. Zimmerlee She took Schrimpf parallel Zimmerlee and became actors. keeping Schrimpf separated, the beer with Zimmerlee plan to these The scheme or that was common his car. completed. had been Richards three defendants had taken to further no because of actions suffered Something required. plan. more was common purchase to show Therefore, is insufficient beer Schrimpf to fall to cause s conduct action, concerted 895.045(2). Stat. within Wis. concluding regard that there was con- In Schrimpf result- action Zimmerlee and

certed between ing drinking in Zimmerlee's until intoxicated and then driving, certainly, consumption of the beer to point driving of intoxication and Zimmerlee's while damages. intoxicated resulted in Richards' Moreover, drinking by Schrimpf Zimmerlee and was tortious they age. because were both under Wis. Stat. 125.07(4)(b). nothing However,there is in the record to drinking merely parallel show that their was not conduct Schrimpf and that Zimmerlee and did not have a com- mon scheme or to drink until intoxicated and then Accordingly,Schrimpfs bring to drive. conduct does not 895.045(2).13 parameters him within the of Wis. Stat. pursuant parties' stipula- addition, 53.' In percent causally negligent tion, Zimmerlee was 72 in the Schrimpf percent death of Chris Richards; was 14 caus- ally negligent, percent causally and Pratchet was negligent. apportioned negligence here reflects Schrimpfs respective liability. and Pratchet's several liability, However, with a concerted action each party negligence assumes the causal of the other so that equally Ogle, all are liable. See 33 Wis. 2d at parties' stipulation differing percent- Therefore, ages supports of causal further our conclusion injury that Richards' was not the result of concerted action.

13Schrimpfs involvement with Zimmerlee after the parties purchased the beer resembles the involvement of the defen There, dants in Blakeslee. the drivers of alternately two vehicles changed highway, lanes on a and the rear driver crashed after dipping his right-hand tires onto the highway. shoulder of the Blakeslee, 37 A.D.3d at 1022. The court held that there was proof insufficient to hold the jointly drivers severally and liable under a concerted theory action because the record did not demonstrate that the drivers had express an or implied agreement engage to "passing in a contest." Id. at 1022-23. following In sum, we reach the conclu- (1) Schrimpf, Zimmerlee, and acted in sions: Pratchet plan procure with a common scheme or to accordance accomplish action alcohol, but since the undertaken not that common or was the act scheme 895.045(2) damages, in Stat. is resulted Richards' inapplicable Schrimpf jointly therefore is not and and (2) severally liable; the action that result did damages drinking until he Richards' was Zimmerlee's subsequent decision intoxicated and his to drive was since action was taken intoxicated, while but this not 895.045(2) plan, accordance a common scheme inapplicable again Schrimpf is not is and therefore jointly severally as liable that context well.

III. CONCLUSION (1) We as follows: Wis. Stat. conclude legislative codification of the con- liability; in this certed action point consumption of beer resulted case from subsequent decision to drive of intoxication and the (3) although Zimmerlee, intoxicated; and Robert while Schrimpf, "in accor- and Tomakia Pratchet acted David plan" procure beer, a common scheme or dance with consuming point they so beer to the did not act driving subsequent while intoxication and in the act Schrimpf jointly intoxicated, and, therefore, David is not under for the death hable Accordingly, Badger Mutual Insurance Chris Richards. making any payment Company from further is relieved Michelle Richards. appeals By decision of the court of Court.—The is affirmed. (dissen- ABRAHAMSON,

¶ 56. SHIRLEY S. C.J. ting). presented is The issue whether defendants

Schrimpf jointly severally and Pratchet are and liable 895.045(2) under Wis. Stat. for their combined 28 percent negligence plaintiffs injury. causal for the engaged plan These two in a common scheme or procure underage (Zimmerlee, alcohol for an drinker percent negligence) the driver-defendant with 72 causal damage who became intoxicated and caused to an (the party plaintiff) by innocent third the intoxicated use of a motor vehicle. In words, other the issue is Schrimpf plaintiff only whether is liable to the not damages attributed to his causal but also damages negli- for the gence. attributed to Pratchet's causal (cid:127) , agree Judge simple I with short, Fine's cogent appeals. Judge dissent the court of Fine wrote 895.045(2) plain unambiguous that Wis. Stat. applied according and should be text; its it should be applied legislature, as enacted not as rewritten by the court. agree Judge

¶ 58. I Fine that the court of appeals' majority opinion "overly complicated simple by attempting matter to read the tea leaves of cases and ,"1 concepts point.. that are not on . This same criti- applies majority opinion by cism to the court, this which largely adopts reasoning majority opinion appeals. the court of plain language 59. The of Wis. Stat. parties acting is that in accordance with a jointly

common scheme or liable plaintiff to the resulting for all the plaintiff plan. from common scheme or Wisconsin provides Stat. in full follows: .as Co., Badger Richards v. Mut. Ins. 255, App 35, 2006 WI 2d (Fine, J., 727 N.W.2d 69 dissenting). (1), Notwithstanding sub. if 2 action. Concerted parties act in accordance with a common or more plan, jointly severally and parties or those scheme resulting action, except damages for all from that liable 895.043(5). provided as in s. court, and major- 60. The the circuit the parties, ¶ agree that and Pratchet acted Schrimpf ity opinion2 scheme or plan procure with a common accordance beverages for the driver the underage present alcohol court, and Furthermore, the circuit parties, case. that and majority agree Schrimpf opinion3 alcohol of the was tortious. procurement Pratchet's a that each was stipulated Pratchet Schrimpf driver beverages underage to the alcohol "provider" 125.035(4), is, they § that that Stat. purposes for an underage for ... beverages [d] each alcohol "procure 125.07(l)(a)."4 s. violation of person court, and the ma- 61. circuit parties, ¶ that and Pratchet's Schrimpf also jority opinion5 agree 2 51. majority op., See 3 majority op., See 125.035(4)(a) § full as follows: provides Stat. Wisconsin including subsection, "provider" person, means a a licensee In this sells, beverages dispenses permittee, procures for or who alcohol or gives away beverages underage person in violation or alcohol an 125.07(l)(a). of s. Schrimpf procurement proscribed Pratchet's act of was may 125.07(l)(a)l., person "[n]o providing that by Wis. Stat. sell, beverages to for, give away any or alcohol dispense procure person accompanied by parent, his her any underage not legal drinking age." spouse has attained the guardian or who Stat. person "provider" purposes of Wis. When 125.035(4)(a), is not immune to civil person such beverages. procuring act of alcohol arising person's out (4)(b). 125.035(2), Stat. See Wis. majority op., ¶ See procurement of the alcohol caused to the plaintiff. Schrimpf stipulated and Pratchet that each "causally negligent" respect plaintiffs was damages. Schrimpf stipulated and Pratchet that their percent combined damages caused 28 of the total plaintiff.6 suffered plain 62. Under circumstances, these lan- guage permits only of Wis. Stat. one result: provides Schrimpf jointly It and Pratchet shall be damages resulting liable for "all" from procure their common scheme or alcohol for the underage disputes percent driver. No one that 28 plaintiffs damages Schrimpf resulted from and procurement underage Pratchet's of alcohol for the 895.045(2) § driver. requires, Wisconsin Stat. thus clearly any Schrimpf about as as statute could, that jointly percent Pratchet be liable for 28 plaintiffs damages. the total majority

¶ opinion Judge 63. The errs, as Fine concluding question stated, in that the whether a plan damages common scheme or has resulted in for purposes liability and several under Wis. Stat. 895.045(2) § question is different from the whether a 6 parties The stipulated plaintiffs that the damages total $1,785,714.29. were parties The further stipulated that the underage driver-defendant's share of the causal negligence was percent, 72 Schrimpfs share 14 percent, was and Pratchet's percent. share was 14 plaintiff

The has against settled all driver, claims the recovering $1,285,714.29 and satisfying percent 72 plaintiffs damages. (that plaintiff The $250,000 has recovered is, 14 percent of her damages) total from Schrimpf. The plaintiff seeks in the $250,000 current action to recover from Schrimpf for the remaining percent causal attributable to Pratchet. has resulted scheme or

common plaintiff. purposes words, In other of tort majority opinion has that Stat. concluded Wis. the changes on the law causation.7 Wisconsin Nothing that in the of Wis. Stat. states text altering modifying legislature substantial majority opinions opine. causation, factor test of as the The more need be said. end! No I more, however, write because in addition majority opinion ignoring statute, text of recognizes, "concepts Judge are rests, as Fine on opinion by listening majority point." The errs not on song majority opinion The the siren of concerted action. by applying the common law doctrine "concerted errs apply. in a does not action" context which it (Sec- concept of action in the Restatement concerted ond) (upon Torts and in the cases which relies) majority opinion point interpreting is not on applying Stat. 895.045. action in the Restatement and 66. Concerted of tort is a substantive rule the cases negli- multiple causally which of actors determine gent injured plaintiff. action Concerted and liable to an cases to a and in these relates under the Restatement liability.8 theory

7 (conceding Schrimpf 11 that op., Compare majority underage for the negligent procuring act of alcohol Pratchet's damages plaintiff of to the for percent resulted in 28 driver plaintiff) majority op., with 54 liability to the purposes of procurement of alco (concluding Schrimpf and that Pratchet's damages did in to the underage driver not result hol for the 895.045(2)). purposes plaintiff 8 (Second) of is Torts 876 of the Restatement Section §in Restate the rule 875 application of stated specific a ment, provides as follows: which

575 majority opinion ¶ 67. The lifts the doctrine of applies legal concerted action and it in a different namely damages among context, in the allocation of already those tortfeasors found at fault. Wisconsin Stat. apportions does not fault; determine it liability after has been determined. majority opinion compounds 68. The its mis- applying take of the substantive doctrine of concerted by treating departing action the doctrine as one from According majority Wisconsin's law of causation. to the persons Each of two or more legal whose tortious conduct is a single cause injured party indivisible harm to the is subject liability injured party for the entire harm. explains Comment c that 875 is consistent with the rules negligence; causation in any one of a persons number of whose tortious conduct is a substantial causing factor in harm is liable for the harm the superseding absence of a cause.

Section 876 of the provides Restatement part relevant as follows: resulting person For'harm to a third from the tortious conduct of another, subject one is if he ... does a tortious act in concert pursuant with the design other or to a common with

him.... The Wisconsin upon cases majority which the relies simi larly treat the common law doctrine of "concerted action" as a rule to determine negligence. causal Olsen, See Bruttig v. 154 (Ct. 270, 280, 1989) Wis. 2d App. N.W.2d 153 (stating that concerted action separate is "a theory liability"); Collins v.Eli (1984) ("The Co., Lilly 166, 185, 116 Wis. 2d 342 N.W.2d 37 concerted action typically applied to situations in particular which ... a already defendant is identified causing as plaintiffs harm, plaintiff desires to extend defendant.") (citation acting league those omit ted); Avina, Ogle v. 2d 133-35, 146 N.W.2d 422 (1966) (participant drag causally negligent race even though plaintiffs injuries were directly caused most by another race). participant in the joint liability opinion, and under Wis. Stat. several only applies who act in to tortfeasors plan the a common scheme or that is accordance with damages, particular plaintiffs the and cause of direct merely damages. plaintiffs a cause of the rather than damages opinion majority requires the that be The particular common scheme or result of the direct merely purposes a 895.045, rather than for of plan.9 the result of common scheme majority pur- opinion declares that for 69. The joint poses under several beverage procure in the alcohol the common scheme plaintiffs not in the dam- the instant case did result notwithstanding parties' stipulation ages, that the the damages procurement of alcohol was cause providers plaintiff their the were liable for majority negligence. opinion concludes that causal purposes under and several 895.045(2), plaintiffs only the cause the underage consumption drinker's of alcohol was the subsequent point decision to of intoxication and drive intoxicated. while reasoning majority opinion's is ex- 70. The way third-party simple

plained brief of in a Casualty Property Insurance Alliance and Wisconsin in Wisconsin whether the defendant's The test of cause injury. producing It a substantial factor was factor, only a primary factor or the need not he the sole factor' denotes that phrase factor.' The 'substantial 'substantial producing has an effect the defendant's conduct such fact, person, as a reasonable to lead the trier harm as cause, popular There using that word sense. regard it as contributing to the same may be several substantial factors Inc., Vehicles, 607, 617-18, Leisure 96 Wis. 2d result. Clark v. omitted). (1980) (internal citations 292 N.W.2d urges Insurers Association of America. brief The that the words "that action" Wis. Stat. mean liability applicable only that is several in those damages solely cases where the from result the tortfea- sors who act in accordance with a common scheme or plan. Applying interpretation present this to case, the "[i]n the Alliance's case, brief concludes that this buying action, action,' concerted or 'that beer, was but driving the harm resulted from drunk differ- —conduct "10 ent from 'that action.' majority 71. I do not know on what basis the opinion determines that the common-law doctrine of (or § 895.045(2), concerted action Wis. Stat. which the majority opinion concludes is a codification of the doctrine) applies only damages common-law when result solely from acts that the tortfeasors undertake in accor- plan. majority dance awith common or scheme The opinion any authority support fails to cite of its purposes 895.045(2), determination that for plaintiff damages suffered no because of the defendants' plan procure common scheme or alcohol.11 Even assuming majority opinion apply that the is correct to the substantive doctrine of concerted action to the present appear case, it not does that this doctrine distinguishes "a" between cause and "the" cause majority opinion majority manner does. The opinion dealing cites no case or treatise with a situation present similar to the case, in which the defendants' common scheme or caused some but not all of the plaintiffs damages.

10Non-party Brief of Wisconsin Prop Insurance Alliance & erty Casualty Insurance Association America at 5. See majority op., majority opinion, I con- In contrast to the concept uses that Wis. Stat. 895.045 clude acting in accordance with com- defendant tortfeasors among plan to allocate mon scheme already multiple fault, at found to be not tortfeasors does) (as § whether of the Restatement determine plaintiff liable to the under a each actor is present liability. multiple in the case tortfeasors single injury contributing as have been identified upon responsibility of the causal and the each based already liability words, In tort has been fault. other § applied. I conclude that is decided when 895.045 damages § Schrimpf 895.045, is liable for attrib- under negligence. to causal uted Pratchet's position support I ¶ the es- 73. Several factors pouse. § sup-

¶ First, text Wis. Stat. 895.045 the my ports Stat. of "concerted action." Wisconsin view 895.045(1) joint § rule of modifies common-law joint liability. regarding rule The common-law several (who plaintiff was not a and several allowed any against judgment negligent) the total to recover regardless of how much defendant who was liable— that Section to tortfeasor. fault was attributable 895.045(1) recovery plaintiffs a tortfea- from limits the percent negligence than 51 causal is less sor whose negligence percentage total attributed of the causal 895.045(1) § Ordinarily, person. would Stat. that to preclude recovering plaintiff Pratchet's from Schrimpf. percent from share 895.045(2), pro- § however, Wisconsin Stat. statutory exception modification an vides (2) provides liability. if 2 or Subsection and several parties with a common scheme act in accordance more or jointly those liable for plan, parties all damages resulting from that action. 76. The "concerted action" phrase does not ap- § in the text of Wis.

pear Stat. 895.045. The is in phrase 895.045(2). the title to The phrase "concerted action" the title to is obviously shorthand for the lengthier statutory "act in accordance language with a common or plan."12 scheme The concept of concerted can play action role 895.045. The substantive law concerted action be used to may interpret whether the defendant tortfeasors acted in accordance with a common scheme or under 895.045(2).13 77. Section as fol- provide lows:

(1) Comparative negligence. Contributory negli- gence recovery does not bar by any person an action person's legal representative or to recover negligence resulting injury in death person or property, negligence greater if that was not than negligence person against recovery whom sought, any damages but allowed shall be diminished in proportion the amount of attributed person recovering. to The negligence plaintiff separately shall be measured against the negligence of person causally negligent. each found to be liability person causally of each found be negligent whose percentage negligence of causal is less than 51% is 12 apparently adopted Several states concept have of exception "concerted action” as an the modification of liability. Allocating several Richard W Wright, Liability Among Multiple Responsible Principled Causes: A Defense of Harm, Liability Joint and Several Exposure, Actual and Risk for (1987-88). 21 1141, See, U. C. Davis L. Rev. 1168 e.g., Idaho (2006). (2004); § CodeAnn. § 6-803 N.D. Cent. Code 32-03.2-02 13 Freeland, (N.D. 1999). 551, See Hurt v. 589 N.W.2d percentage negligence limited of the total causal person. person causally A to that found to be attributed negligent negligence percentage whose causal 51% severally jointly be liable for the or more shall damages allowed. (1), Notwithstanding if 2 Concerted action. sub. with a common parties

or more act accordance jointly plan, parties or scheme those resulting action, except damages from that liable for all 895.043(5). provided in s. as § I directs that it, 78. As see Wis. Stat. 895.045 multiple acted in actors who has accordance each plan and a scheme or whose causal common percent negligence apportioned less than 51 has been at only plaintiff or not for his her own share is liable also the share of causal of causal negligence but he acted in

of another defendant with whom tort than decide the substantive liabil- concert. Rather damages apportions ity multiple actors, 895.045 already multiple tortfeasors has after the change not Section 895.045 does been determined. negligence. causal appeals v. Second, court of Danks App Building Supply, Inc., 8, 39, 2007 WI

Stock my 846, is in accord with 2d 727 N.W.2d describing correctly interpretation, Wis. Stat. as follows: forth law Stat. sets Wisconsin's Wisconsin negligent negligence, specifying when a comparative defendant. It also may negligent recover from a plaintiff regarding joint and several spells law out Wisconsin defendants, given among specifying when may liable for all assessed defendant against multiple become 895.045(2) applies Thus tortfeasors. determined, appli- only judge jury has under after 581 law, cable substantive that more than one tortfeasor is (2) plaintiff. in some liable measure to the Subsection (1) simply provide modifies subsection of the to statute legally responsible that all defendants who for are caus- ing plaintiffs damages, and who acted in concert in so doing, jointly plaintiffs are for the liable n damages, irrespective given whether defendant’s apportioned causal is less than 51%. Third, other states similarly have inter- preted joint "concerted action" and several liability Court, statutes. The North Dakota Supreme for ex- held that its ample, several liability statute with a special provision for "concerted action" "does not create an independent basis of rather it liability, deals with the damages allocation of those among at already fault."14 Fourth, my interpretation Wis. Stat. (Third) comports with Restatement

Law of Apportionment Liability (2000), Torts: 15 (N.D. 1999). Freeland, Hurt v. 589 N.W.2d Dakota North has a statute similar Wis. Stat. 895.045(2). (and The North Dakota provides part statute decision): provided at the time of the Hurt parties injury, When two or more found have contributed party only, joint, of each is several and is not and each party only damages is liable for the amount attributable to the percentage except party, any persons of fault of that who act in committing encourage act, concert in a tortious act or aid or adopts benefit, jointly ratifies or the act for their liable for all percentage attributable to their combined of fault. Under section, negligence, malpractice, this fault includes absolute liabil- ity, shop warn, liability, conduct, dram failure willful reckless or risk, assumption product, injury, misuse of failure to avoid product liability,including product liability involving negligence or warranty product strict or breach of defect. added). N.D. Cent. (emphasis Code 32-03.2-02 (Second) § replace 876, does Restatement but not which provides appor- 15 for an addition thereto. Section is liability persons of when act concert as tionment follows: they concert, persons are liable because acted

When jointly severally for the persons all liable share person comparative responsibility assigned to each of engaged activity. in concerted § applies explains that 82. Comment 15 when activity "governing law determines that concerted

the place and that tortious acts of one more of took activity legal participants in the was a concerted injury."15 plaintiffs com- cause of the indivisible The joint "[t]he explains and several ment further activity engaged is of those in concerted comparative responsibility assigned to all who total activity."16 engage Reporters' in the concerted Note (Third) Apportion- § of 15 of Restatement Torts: Liability interprets Wis. Stat. 895.045 as ment of retaining for concerted "full and several According comment, American Law actors."17 position not on "whether Institute does take a jointly is also concerted-action tortfeasor comparative responsibility as- liable for the share independent signed to an tortfeasor who also liable injury."18 indivisible for the same 15 (Third) Apportionment Law of Torts: Restatement of the (2000). at cmt. a 129 Liability 16 Id. 17 (Third) Apportionment Law of Torts: Restatement (2000). Liability 15, reporters' note at 131 18 (Third) Apportionment of the Law Torts: Restatement (2000). Liability § 15 at 129 my interpretation Fifth, of Wis. Stat. comports Reilly also Anderson, with v. (Iowa 2006), Supreme

N.W.2d 102 in which the Iowa Court had to decide whether the of concerted compatible statutory comparative action is fault principles.19 explained, The Iowa court at N.W.2d (such independent party 109, that where an as the case) underage present drunken driver had been assigned percent fault and concerted actors #1 and (here Pratchet) Schrimpf #2 assigned and had been percent percent respectively, fault of 35 and 10 jointly concerted severally actors would at least be percent plaintiffs damages. liable for 45 The Iowa court did not decide whether the concerted actors would jointly be liable for the entire fault assigned to all defendants in the fact situation de scribed.

¶ 84. For the reasons set forth, I dissent. ¶ 85. I am authorized to state that Justices ANN WALSH join BRADLEY LOUIS B. BUTLER, JR. opinion. this

19The provided Iowa statute and several only attaches persons, those excluding plaintiff, who are found percent or more at fault. The statute was about silent concerted action.

Case Details

Case Name: Richards v. Badger Mutual Insurance

Court Name: Wisconsin Supreme Court

Date Published: Jun 3, 2008

Citation: 749 N.W.2d 581

Docket Number: 2005AP2796

Court Abbreviation: Wis.