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Only sponsoring parent has imputed liability

What the court held

Case: LaCount v. Salkowski, No. 02-0630.

Issue: Where divorced parents of a minor have joint legal custody, but only one parent sponsored the child to obtain a driver’s license under sec. 343.15, is liability imputed to both parents?

Holding: No. Subsection (2)(a) excludes joint legal custody from the definition of “custody” in subsec. (2)(b), and therefore, only the sponsoring parent has imputed liability.

Counsel: Frank T. Crivello II, Milwaukee; Gregory B. Conway, Green Bay, for appellant; Matthew E. Yde, Wausau; Douglas R. Ross, Wausau, for respondent.

Even though divorced parents of a minor driver have joint legal custody and share physical placement of the minor, a non-sponsoring parent does not have imputed liability for the minor’s negligence under sec. 343.15(2)(b), the Wisconsin Court of Appeals held on Oct. 16.

Joint Legal Custody

Joseph W. Langer and Rosemary A. Salkowski divorced in 1992 and were awarded joint legal custody of their daughter, Courtney. The parents live apart and alternate Courtney’s physical placement weekly. In 1999, Courtney obtained a Wisconsin driver’s license with Langer as the sponsor, pursuant to sec. 343.15.

On Oct. 15, 1999, Courtney’s placement transferred from Langer to Salkowski. Later that evening, Courtney was involved in an automobile accident. The driver of the other vehicle died, and a passenger in Courtney’s car was rendered a partial paraplegic.

There were also other injuries to passengers of the other vehicle.

The accident gave rise to a number of lawsuits against various parties, including Salkowski. On motions for summary judgment, Brown County Circuit Court Judge Mark A. Warpinski dismissed Salkowski and her insurer. Langer appealed, but the court of appeals affirmed in a decision by Judge Michael W. Hoover.

The Statute

Section 343.15(2)(b) provides: "Any negligence or wilful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways is imputed to the parents where both have custody and either parent signed as sponsor, otherwise, it is imputed to the adult sponsor who signed the application for such person’s license. The parents or the adult sponsor is jointly and severally liable with such operator for any damages caused by such negligent or wilful misconduct."


The court concluded the phrase "where both have custody" is ambiguous, because it could mean either physical custody, or two separate types of legal custody.

The court noted that "custody" could refer to the legal custody that vests as married parents of a child, citing Sallie T. v. Milwaukee County DHHS, 219 Wis. 2d 296, 309, 581 N.W.2d 182 (1998), and other cases for the proposition that biological parents have a constitutional right to raise their child.

However, "custody" could also refer to the type of legal custody Langer and Salkowski share — the joint legal custody arrangement created pursuant to the court order in their divorce.

The court noted, however, that the latter type of legal custody is explicitly excluded as a permissible construction by sec. 343.15(2)(a), which provides, "In this subsection, ‘custody’ does not mean joint legal custody as defined in sec. 767.001(1s)."

Therefore, the court reasoned, "‘custody’ as used in sec. 343.15(2)(b) and applied here can only mean the natural legal custody that two married parents share. Because Langer and Salkowski do not share the correct type of custody over Courtney, Salkowski was properly dismissed from this case."

The court rejected Langer’s argument that "custody" could also mean "actual physical custody," as that term is used in sec. 895.035, the general statute regarding parental liability for minor children. Subsection (1)(a) of that statute provides, "In this section, ‘custody’ means either legal custody of a child under a court order under s. 767.23 or 767.24, custody of a child under a stipulation under s. 767.10 or actual physical custody of a child."

Langer argued this is sufficient to impute liability to Salkow
ski because she was the parent with actual physical custody at the time of the accident, and was the one who made the decision that Courtney could drive that day.

However, the court determined that this construction would create an unreasonable result for several reasons. First, a divorced parent who purposefully declined to sponsor a child could nevertheless be liable.

Second, "liability would almost always be a matter of fortuity — whether the non-sponsoring parent was ‘lucky’ enough for his or her child to be in an accident when that parent did not have physical custody."

And third, that interpretation would mean that, the greater the placement time a court awards to the non-sponsoring parent, the more likely it would be that the parent would end up with imputed liability. Rejecting the interpretation, the court concluded, "We do not think the legislature intended that liability be based on chance."

Beerbohm v. State Farm

The court then distinguished the case of Beerbohm v. State Farm Mut. Auto. Ins. Co., 2000 WI App 105, 235 Wis.2d 182, 612 N.W.2d 338, because the parents in that case were not divorced, although they were not living together.

Distinguishing Beerbohm, the court stated, "the main issue was whether a motorcycle was covered under a car insurance policy.

There is no analysis of what ‘custody’ under Wis. Stat. sec. 343.15(2)(b) means. The court merely stated that because both of the minor’s parents had custody and one signed as a sponsor, liability was imputed to both."


Wisconsin Supreme Court

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Sponsor Case Analysis

The court added, "Contrary to what Langer and certain legal digests say about Beerbohm, there is no statement by the court that the parents were divorced, only that they were living apart. Absent some indication the parents had anything but the natural parental custodial relationship to their child, we decline to apply Beerbohm to this case, and we limit Beerbohm’s application … to its facts (emphasis in original)."

Public Policy

Finally, the court rejected Langer’s arguments that public policy and legislative intent require that liability can be imputed to Salkowski.

The purpose of the statute was to provide adequate financial resources to cover the increased risk to the public posed by juvenile drivers. Nevertheless, the court determined, "This purpose … is not frustrated by excluding Salkowski from liability, because Langer is the sponsor who agreed to accept the risk."

The court rejected Langer’s contention that liability must be imputed to a non-sponsoring custodial parent merely to increase the pool of funds potentially available for damages. Accordingly, the court affirmed.

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David Ziemer can be reached by email.

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