Concerted action liability limited

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To be jointly and severally liable for concerted action under sec. 895.045(2), the persons must have acted in accordance with a common scheme or plan to accomplish the result that caused the injury.

As a result, the Wisconsin Court of Appeals held on Nov. 14 that a defendant who procured alcohol for an underage drinker is not jointly and severally liable for injuries caused when the underage drinker later drove a motor vehicle.

According to facts stipulated to by the parties, in 2003, Robert Zimmerlee and David Schrimpf, both nineteen years old, attended a party at which they drank beer which had been purchased by Tomakia Pratchet, a thirty-one year old co-worker of Schrimpf.

Zimmerlee provided the money for the beer that Pratchet actually purchased, and Pratchet was not present at the party while they drank it. At approximately 7:30 a.m. the next morning, Zimmerlee and Schrimpf left the party, with Zimmerlee driving, and Schrimpf as a passenger.

Zimmerlee ran a stop sign while speeding, and collided with an automobile driven by Christopher Rich-ards, who was killed in the accident.

The parties stipulated that Richards’ damages were $1,785,714.29, and that causal negligence was as follows: Zimmerlee, 72 percent; Schrimpf, 14 percent; and Pratchet, 14 percent.

Zimmerlee’s insurer settled for his share, $1,285,714.29, and Schrimpf’s insurer settled for his share, $250,000.

Richards never brought suit against Pratchet, and instead sought to recover Pratchet’s share from Schrimpf’s insurer under a joint and several liability theory.

Milwaukee County Circuit Court Judge Patricia D. McMahon held that Schrimpf, Zimmerlee and Pratchet “acted in accordance with a common scheme or plan in procuring beer,” and thus were jointly and severally liable under sec. 895.045(2).

Badger Mutual Insurance Company — Schrimpf’s insurer — appealed, and a divided court of appeals reversed, in a decision written by Judge Patricia S. Curley and joined by Judge Ted E. Wedemeyer, Jr.

Judge Ralph Adam Fine dissented.

Statutory History

The court began with a history of joint and several liability in Wisconsin. Prior to 1995, joint and several liability was a common law rule that permitted a plaintiff to recover all of his damages from any defendant whose negligence caused injury.

In 1995, joint and several liability was limited to defendants 51 percent or more causally negligent.

However, an exception was retained for “concerted action”: “Notwithstanding sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action.” Sec. 895.045(2).

Common Law

The court found that three pre-1995 cases addressed concerted action: Ogle v. Avina, 33 Wis.2d 125, 146 N.W.2d 422 (1966); Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984); and Bruttig v. Olsen, 154 Wis.2d 270, 453 N.W.2d 153 (Ct.App.1989).

In Ogle, the court held that two drivers who had engaged in drag racing were equally liable even though only one driver actually caused the fatal collision. In Collins, the court declined to apply “concerted action” liability to drug manufacturers, when the plaintiff could not identify which manufacturer produced the drug that injured her.

Finally, in Bruttig, the court did not consider the merits, but noted that the concerted action theory had never been imposed on anyone in a Wisconsin appellate decision, except participants in a drag race.

From the history of sec. 895.045 and the common law pre-1995, the court concluded that subsec. (2) is a codification of the common-law rule in Ogle and Collins.

Accordingly, the court held, “in order for concerted action liability to attach under Wis. Stat. sec. 895.045(2), the persons held liable must have acted in accordance with “a common scheme or plan to accomplish the result that injures the plantiff,” and there must have been an agreement — tacit or express — about the common scheme or plan (cites omitted)(emphasis added by court).”

The curt further noted that the Wisconsin Civil Jury Instruction Committee recently released a jury instruction for subsec. (2) — WIS JI — Civil 1740, which relies heavily on the Supreme Court’s discussion in Collins, and the Restatement’s position on concerted action (consistent with Wisconsin’s pre-1995 precedent).

Application

Applying the concerted action theory to the facts, the court concluded it did not apply to Pratchet.

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The court reasoned, “Zimmerlee, Schrimpf and Pratchet had an agreement to purchase alcohol. This agreement had nothing to do with Zimmerlee driving while intoxicated some twelve hours later. Because the act that caused the injury was Zimmerlee driving while intoxicated, and because Pratchet did not engage in a ‘common scheme or plan’ to drive while intoxicated, Zimmerlee, Schrimpf and Pratchet cannot be subject to concerted action liability under sec. 895.045(2) for the injury that resulted from Zimmerlee driving while intoxicated.”

Accordingly, the court reversed.

The Dissent

Judge Fine dissented, concluding that the plain language of the statute provides for joint and several liability.

Because it was undisputed that the defendants had a common scheme to buy alcohol, and as a result of Zimmerlee’s drinking and driving, he caused injury to Richards, Fine concluded that the statute provides for liability.

Fine wrote, “the Majority has overly complicated a simple matter by attempting to read the tea leaves of cases and concepts that are not on point because they pre-date what the legislature did in 1995, and thus, in my view, are inapplicable. … Wisconsin Stat. sec. 895.045(2) is plain and applies here.”

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