Alcohol provider is not liable for all injuries

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Providing alcohol to a minor does not make someone liable for all the injuries the minor may subsequently cause.

After a divided Wisconsin Supreme Court decision June 3, it remains the case that no Wisconsin appellate opinion has found concerted action and imposed joint and several liability, except in the case of drag racing.

According to facts stipulated to by the parties, in 2003, Robert Zimmerlee and David Schrimpf, both 19 years old, attended a party where they drank beer which had been purchased by Tomakia Pratchet, a 31-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 Richards, who was killed in the accident.

$1.78 Million in Damages

The parties stipulated that Richards’ damages were $1,785,714, 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, 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).

The Court of Appeals reversed, holding that, although the defendants had an agreement to purchase alcohol, the agreement did not include Zimmerlee’s driving while intoxicated, which resulted in the damages. Richards v. Badger Mut. Ins. Co., 2006 WI App 255, 297 Wis. 2d 699, 727 N.W.2d 69.

The Supreme Court granted review, but affirmed, in a decision by Justice Patience Drake Roggensack. Chief Justice Shirley S. Abrahamson dissented, in an opinion joined by Justices Ann Walsh Bradley and Louis B. Butler, Jr.

Legislative History

The court began with a lengthy review of the legislative history of contributory negligence and joint and several liability in Wisconsin, culminating in the 1995 act creating sec. 895.045 in its current form.

The 1995 act did two things: limited joint and several liability to those whose percentage of causal negligence is 51 percent or greater; and create subsec. (2) as an exception to that amendment (prior to the act, joint and several liability applied to all defendants more causally negligent than the plaintiff).

Subsection (2) is entitled “Concerted action,” and provides in relevant part:

“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…”

Based on this history, the court found that the Legislature did not intend for joint and several liability to apply. Instead, it found the purpose of the statute was to limit when joint and several liability applied, while preserving the existing common law rules for concerted action.

After reviewing the four appellate case addressing concerted action prior to 1995, as well as Prosser’s “The Law of Torts,” and the “Restatement (Second) of Torts,” the court concluded that the concerted action theory of liability did not apply.

Drag Racing Case

The only Wisconsin appellate case ever to apply the concerted action liability is Ogle v. Avina, 33 Wis.2d 125, 146 N.W.2d 422 (1966), in which the defendants were both engaged in drag racing, but only one car collided with the plaintiff.

In that case, the court found that the fault of the two drag racers was equal; here, however, Zimmerlee was more at fault than the other two.

The court acknowledged that Pratchet, Zimmerlee and Schrimpf had a common plan to buy beer and that the procurement of the beer was tortious.

However, the court found that, after Pratchet left, Zimmerlee and Schrimpf became parallel actors, with each going separate ways until meeting later at the party.

The court concluded, “The scheme or plan that was common to these three defendants had been completed. Richards had suffered no damages because of actions taken to further that common plan. Something more was required. Therefore, the purchase of beer is insufficient to show concerted action, and to cause Schrimpf’s conduct to fall within Wis. Stat. sec. 895.045(2).”

The dissenters concluded that the statute is plain and unambiguous, and requires the imposition of joint and several liability.

Abrahamson wrote in dissent, “Under these circumstances, the plain language of Wis. Stat. sec. 895.045(2) permits only one result: It provides that Schrimpf and Pratchet shall be jointly and severally liable for ‘all’ damages resulting from their common scheme or plan to procure alcohol for the underage driver. … Wisconsin Stat. sec. 895.045(2) thus requires, about as clearly as any statute could, that Schrimpf and Pratchet be jointly and severally liable.”

Analysis

Two aspects of the majority opinion are troublesome.

The most troublesome part has nothing to do with concerted action; rather, it is the court’s use of the parties’ stipulation as a factor in reaching its decision.

The court noted that the parties stipulated that Zimmerlee was 72 percent negligent; and Schrimpf and Pratchet were each 14 percent negligent.

The court wrote, “However, with a concerted action theory of liability, each party assumes the causal negligence of the other so that all are equally liable. Therefore, the parties’ stipulation to differing percentages of causal negligence further supports our conclusion that Richards’ injury was not the result of concerted action.”

Using the stipulation in this fashion can only serve to discourage parties away from such stipulations.

The parties in this case conserved judicial resources, as well as the resources of their clients, by agreeing to all factual issues, while reserving one legal issue -– concerted action liability.

For the court to use that stipulation as it did, even if only as one factor in reaching the ultimate result, can only discourage a practice that the court should encourage instead.

The second problematic part is the court’s use of the standard jury instruction to support its holding, even though the jury instruction, which is not adopted by the Legislature,

sheds no light on either the meaning of the statutory language or legislative intent.

It is particularly troublesome in this case, because the standard jury instruction for concerted liability should actually never be given to any jury.

Whether concerted action liability applies is a question of law, to be decided by the court. Appellate courts review that decision independently, something the Supreme Court correctly noted in i
ts opinion.

However, Wisconsin Civil Jury Instruction 1740 permits the jury to usurp the judicial function, by asking it whether the defendants engaged in concerted action.

Rather than relying on the instruction for support, it would have been better for the court to add a footnote stating that the instruction should not actually be given to juries.

To use the drag racing example from Ogle, drag racers are jointly and severally liable as a matter of law. Other than the question of whether a defendant was engaged in drag racing, therefore, there is nothing to ask the jury.

By asking the jury whether the drag racers engaged in a common scheme or plan that injured the plaintiff, as the instruction does, the instruction invites the jury to improperly intrude on the judicial function.