No. 86-472
IN THE SUPREME COURT OF THE STATE OF MONTANA
KA.THIE NORTH, as Personal Representa-
tive of the Estate of TERRANCE J. NORTH,
and as Guardian Ad Litem for SUSAN A.
NORTH, a minor,
Plaintiff and Respondent,
-vs-
GARY BUNDAY, d/b/a BUNDAY TRUCKING;
and THE STATE OF MONTANA,
Defendants and Petitioners.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Petitioners:
Allen B. Chronister argued, Agency Legal Services
Bureau, Helena, Montana
Gregory Morgan argued, Bozeman, Montana
Robert Planalp argued, Bozeman, Montana
For Respondent:
Monte Beck argued, Bozeman, Montana
Terry Trieweiler argued, Whitefish, Montana
Submitted: January 6 , 1987
Decided: March 31, 1987
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
In this special proceedings originating in this Court,
we are called upon to decide whether the District Court is
correct in holding that, although plaintiff's percentage of
causal negligence in a tort action exceeded the percentage of
causal negligence assigned individually to each of two
concurrent tortfeasor defendants, the plaintiff may
nevertheless recover a diminished proportion of his damages
from the concurrent tortfeasors because their combined
percentages of causal negligence exceeded that of the
plaintiff.
We hold that the District Court was correct and we adopt
the rule that under our comparative negligence statutes and
cases the percentage of negligence of the plaintiff is to be
compared to the combined percentages of causal negligence of
concurrent tortfeasors where recovery is sought against
multiple defendants.
Two issues have developed in this cause:
1. What is the legal effect under § 27-1-702, MCA, of a
civil jury verdict in a bifurcated trial on negligence only,
apportioning 45% of the negligence to the plaintiff, 40% to
the defendant Bunday Trucking and 15% to the defendant State?
2. In the event that this Court adopts the theory of
combined negligence of concurrent tortfeasor defendants,
should this cause be remanded to the District Court to
reapportion fault under proper instructions?
The underlying case was tried in the Eighteenth Judicial
District, Gallatin County. The plaintiff, Kathie North, in
her representative capacities, sued Gary Bunday and the State
of Montana for damages arising out of the death of Terrance
J. North. On the night of August 2, 1983, Terry North was
driving a pickup and a motorcycle trailer down U.S. Highway
10, east of Bozeman. Highway 10 is a frontage road with a
dead end. There was no "dead end" sign or other warning
placed prior to the roadway's end. Defendant Bunday Trucking
had parked two unloaded semi-trailers at the end of the
roadway and on the State's right-of-way. The trailers were
parked directly in front of and partially blocking the only
sign indicating the road's closure. North apparently saw the
trailers, applied his brakes and slid his pickup under one of
the trailers. He was killed in the collision. Later,
readings of blood samples taken from Terry's body indicated a
high blood-alcohol content.
Plaintiff is decedent's ex-wife, suing on behalf of the
estate and his daughter. The plaintiff argued that Bunday
was negligent in the placement of the trailers on the roadway
and that the State of Montana was negligent in failing to
adequately warn of the dead-end road. The defendants argued
that decedent's extreme intoxication was the sole cause of
the accident.
The parties agreed that the issues in the District Court
would be bifurcated, the first jury to determine the
percentages of negligence, if any, of the parties in causing
the accident, and a later trial to determine damages, if a
damages trial was necessary.
The jury returned a special verdict in which, in
separate interrogatories, it answered that each of the
defendants and the decedent Terry North were negligent, and
that the negligence of each was a legal cause of the
accident. It fixed the percentages of such negligence at 40%
for defendant Gary Bunday, 15% for defendant State of
Montana, and 45% for the plaintiff's decedent Terry North.
The total, of course, is 100%.
Following the verdict on special interrogatories, the
District Court entered an order requiring that counsel for
each party prepare memoranda regarding their contentions as
to the effect of the verdict, and their authorities in
support. After considering the memoranda and contentions,
the District Court judge entered an order on September 9,
1986 to the effect that "the court adopts the combined
negligence rule of the defendants exceeding that of the
plaintiff and the plaintiff is therefore entitled to damages
reduced by 45% attributable to plaintiff's negligence."
Thereupon, the State of Montana made application to this
Court for a writ of supervisory control directing the
District Court to modify its order of September 9, 1986. The
State requested that the plaintiff be barred from recovering
against the State because the negligence of the decedent
exceeded the negligence of the State and of each individual
defendant. The State contended that no further trial was
necessary as to damages. The defendant Gary Bunday joined in
the State's application with permission from this Court.
The statute which bears most directly on the problem is
5 27-1-702, MCA, which we set forth here:
Contributory negligence shall not bar recovery in
an action by any person or his legal representative
to recover- damages for negligence resulting in
death or injury to person or property - - if such
negligence was - qreater - - negligence of
- not than the
the person against whom recovery is sought, but a=
damages allowed shall be diminished in the
proportion to the amount of negligence attributable
to the person recovering. (Emphasis added.)
The proponents of the individual comparison rule contend
that 5 27-1-702 is not ambiguous, requiring comparison of the
plaintiff's negligence "with the person" against whom
recovery is sought. They further contend that we predicted
the individual comparison rule in dictum in Cordier v.
Stetson-Ross (1979), 184 Mont. 502, 604 P.2d 86. They
further argue that because our comparative negligence statute
was adopted from Wisconsin that the interpretation of the
statute by the highest judicial authority in Wisconsin was
also adopted by us.
The plaintiff, as proponent for the combined comparison
rule, contends that the words "the person" in § 27-1-702 must
be interpreted in accordance with $ 1-2-105, MCA; that the
policy of the state, and fairness, require interpretation of
§ 27-1-702 under the combined comparison rule; and that the
majority of states considering the issue have adopted the
combined comparison rule.
The District Court saw the issue as one involving
nothing but fairness. In weighing the pros and cons of the
interpretation of the statute, the District Court determined
that the most fair result would be to adopt the combined
negligence rule. It did so, although it also foresaw that
sometimes inequities would result. The District Court said:
In reaching its conclusion, the court feels bound
by nothing beyond the question of fairness. But
even with fairness as the only criterion, one can
always conjure up some obscure set of facts which
will appear to treat a mythical plaintiff or
defendant less fairly than others. Unfortunately,
the nature of the beast is such that this will
inevitably happen.
The defendants further argued that past legislative
inaction demands the status suo. The Court cannot
L
agree. It is true that the legislature has
refrained from clarifying the existing language,
but it may also be true that the legislators
believed an amendment was unnecessary. Who knows
what is in the minds of one hundred fifty (150)
-
legislators when the result is no action?
The 1975 adoption by the legislature of the comparative
negligence statute, 27-1-702, MCA, was a legislative
modification of the harsh common law rule in effect in
Montana before that time that contributory negligence in the
slightest degree barred a plaintiff from recovering for his
injuries from any tortfeasor, joint or several. Sztaba v.
Great Northern Railway Company (1966), 147 Mont. 185, 411
P.2d 379. The comparative negligence statute appears to be
identical to that of Wisconsin on the same subject. Wis.
Stat. Ann. S 895.045.
The petitioners contend that the language "the
negligence of the person against whom recovery is sought,"
found in the statute, is unambiguous, and commands individual
comparison. A similar argument was made in Colorado and
rejected by its Supreme Court in Mountain Mobil Mix, Inc. v.
Gifford (Colo. 19831, 660 P.2d 883. There the Colorado
Supreme Court said:
The controversy in this appeal arises from the
language in the statute which purports to limit
recovery if plaintiffs "negligence was not as great
as the negligence of the person against whom
recovery is sought." (Emphasis added.) The
respondents argue that the plain language of the
statute dictates that plaintiff's negligence should
be compared against each defendant's negligence.
In our view, the issue cannot be resolved by a
mechanical and narrow reading of the statute.
(Citing authority.)
In addition to the previously mentioned canons of
statutory construction which the General Assembly
has codified, it has directed us that the use of a
singular in a statute also includes the plural.
(Citing authority.) The respondents would have us
ignore rules for statutory interpretation when
there is no indication that the comparative
negligence statute was intended to embody an
individual comparison rule. If the General
Assembly truly intended the phrase "the person" to
exclude the plural, then it could have
unambiguously provided for that result by using the
phrase "each individual person." (Citing
authority.) Even though the General Assembly's
wording is imprecise, we do not believe that a
strict parsing of the statutory language compels an
individual comparison rule. (Citing authority.)
We must therefore construe the statute in light of
its intended purpose.
Montana has a like provision on the matter of statutory
interpretation. Section 1-2-105, MCA, provides: "The
following rules apply in this code: ... (3) he singular
includes the plural and the plural the singular."
In like manner, the State of Utah, in Jensen v.
Intermountain Health Care, Inc. (Utah 1984), 679 P.2d 903,
908, utilized a statute similar to our S 1-2-105, MCA, to
determine that "person" in the comparative negligence statute
should include "persons:"
Furthermore, it should be noted that the language
of section 1, as such, is not necessarily
inconsistent with the unit rule. That section only
refers to a plaintiff's negligence not being "as
great as the negligence or gross negligence of -the
person against whom recovery is sought . . ."
(Emphasis added.) The statutory language is not
the "negligence of any person against whom recovery
is sought"; rather the language used was intended
to mean "the person or persons" so as to include
both single-defendant and multi-defendant cases.
That construction is suggested by the text and is
in full harmony with UCA 1953, S 68-3-12, which
provide rules for the construction of Utah
statutes. Subparagraph (6) states, "The singular
number includes the plural and the plural the
singular .. ."
Wyoming and Idaho on the other hand have refused to
interpret the word "person" as including the plural. See
Board of Commissioners v. Ridenour (Wyo. 19811, 623 ~ . 2 d
1174; Odenwalt v. Zaring (Idaho 1980), 624 P.2d 383.
The petitioners, however, contend that where the
language of the statute is plain, unambiguous, direct and
certain, the statute speaks for itself and there is nothing
left for the court to construe. Keller v. Smith (1976), 170
Mont. 399, 553 P.2d 1002. They further cite State ex rel.
Swart v. Casne (1977), 172 Mont. 302, 564 P.2d 983, to the
effect that the rules of statutory construction which apply
to cases involving conflicting or ambiguous provisions of a
statute have no application where the language of the statute
is clear and ambiguous. Yet the respected authority of the
Supreme Courts of Colorado and Utah construing an identical
provision is persuasive authority. To these may be added the
Supreme Court of Hawaii, holding similarly on an identical
provision in Wong v. Hawaiian Scenic Tours, Ltd. (Hawaii
1982), 642 P.2d 930; and of Arkansas, Walton v. Tull (Ark.
1962), 356 S.W.2d 20.
The Supreme Court of Wisconsin, the state from which it
is contended that our § 27-1-702, MCA, was adopted
(respondent disputes this point), determined by judicial
enactment that the language of the statute required the
application of the unit or individual comparison rule.
Schwenn v. Loraine Hotel Company (Wis. 1961), 111 N.W.2d 495;
Walker v. Kroger Grocery and Baking Company (1934), 252 N.W.
721. Yet in 1978, in May v. Skelly Oil Company (1978), 264
N.W.2d 574, the Wisconsin Court seemed dissatisfied with its
own interpretation:
This case is one of many cases which have come
before this court involving multiple party
tortfeasors. May urges the court to re-examine its
interpretation of the comparative negligence
statute. The majority of the court has become
convinced that comparing the negligence of the
individual plaintiff to that of each individual
tortfeasor--rather than comparing the negligence of
the individual plaintiff to that of the combined
negligence of the several tortfeasors who have
collectively contributed to plaintiff's
injuries--leads to harsh and unfair results; the
majority has further concluded that this rule of
comparative negligence, a court-made doctrine, can
be changed by court decision. However, in view of
our holding that Indian Head is not negligent, the
majority does not believe that the case at bar is
the appropriate one in which to structure a change
in the rule of comparative negligence in cases
involving multiple defendants.
Later, as the Hawaiian court noted in Wong, 642 P.2d at
933 (fn 9), several members of the Wisconsin majority
recanted, and the rule that "leads to harsh and unfair
results" remains in effect. See Reiter v. Dyken (Wis. 1980),
290 N.W.2d 510; Wisconsin Natural Gas Company v. Ford, Bacon
and Davis Construction Corporation (Wis. 1980), 291 N.W.2d
825. The Wisconsin Supreme Court decided that the change to
"combined comparison" should be left to the legislature which
over the years had tacitly assented to judicial
interpretation of the comparative negligence statute.
This Court has expressed the rule that when our
legislature borrows a statute from another state it borrows
the construction placed upon it by the courts of that other
state. Dunham v. Southside National Bank (1976), 169 Mont.
466, 548 P.2d 1383. However, while this Court will consider
the home court construction placed on the borrowed statute,
such construction is not binding on this Court. State ex
rel. Mankin v. Wilson (1977), 174 Mont. 195, 569 P.2d 922.
In Wong, the Hawaii Supreme Court noted that the
interpretation of a borrowed statute by the court of the
statute's home state may be rejected when there is a conflict
with the obvious meaning of the statute, or where foreign
decisions are unsatisfactory in reasoning, or where the
foreign interpretation is not in harmony with the spirit or
policy of the laws of the adopting state. The Supreme Court
of Utah, in Mountain Mobil Mix, Inc. v. Gifford, supra, also
refused to follow the Wisconsin interpretation, citing
fairness and the policy of the Utah legislature in adopting
comparative negligence. 660 P.2d at 888, 889.
We have already stated that one of the purposes of our
legislature in adopting the comparative negligence statute
was to abate the harshness of the common law rule on
contributory negligence as preventing any recovery for a
plaintiff, and apportioning responsibility in accordance with
fault.
Out of the Montana statutes, one may distill a statutory
scheme and policy regarding the civil liability of negligent
persons. First, everyone - responsible for injury
is
occasioned to another by his want of ordinary care in the
management of his property or person. Section 27-1-701, MCA.
This statutory language surely includes the 15% negligent
State for "everyone" brooks no exception absent state
immunity. Being "responsible" means being liable for damages
(if the statutes allow) when one's negligence injures
another.
The responsibility of "everyone" negligent for injuries
to another has an exception in S 27-1-701 ' .I .. so far as
the [injured person] has willfully or by want of ordinary
care brought the injury upon himself." Here, the 45%
negligent plaintiff's decedent must share the blame, but only
"so far" as he was himself at fault. The plaintiff's
proportion in this case cannot exceed 45% of the damages.
Any interpretation of the comparative negligence statute
which increases plaintiff's proportion beyond 45% offends S
27-1-701.
Second, the State in this case is, under the present
status of the proceedings, responsible for 15% of any damages
judgment the jury in this case might later find. Since the
State's negligence constitutes 15% as a proximate or legal
cause of plaintiff's injuries, it cannot complain on the
ground of unfairness if it is required to pay damages to the
proportionate extent of its fault.
In the recent case of State ex rel. Deere & Company and
Robert L. Campbell v. District Court (Decided December 19,
19861, - P.2d , 43 St.Rep. 2270, we interpreted the
clause "the person against whom recovery is sought,"
contained in S 27-1-702, as meaning those defendants who
remain in the lawsuit, and not other possible tortfeasors who
may have settled with the plaintiff before judgment was
entered in the lawsuit. There are any number of other
possible defendants who might be named in a lawsuit, but
because of operation of law are immune from judgment, and
thus not persons against whom recovery may be sought. Such
possible defendants easily include government officials given
immunity for their acts, and employers who are insulated by
the exclusivity of the Workers' Compensation law. Section
39-71-411, MCA.
Petitioners have brought to our attention the dictum of
this Court in Cordier v. Stetson-Ross (1979), 184 Mont. 502,
520, 604 P.2d 86, 96, where we said:
... in Montana, under section 58-607.1, R.C.M.
1947, now 27-1-702, MCA (we have not specifically
held this yet) it appears that the ten percent
negligent defendant would not be liable for any
amount to the plaintiff.
Counsel, however, recognize that the statement was expressly
dictum. We inserted the clause "we have not specifically
held this yet" as a flag that this subject was open to
further discussion.
The question here has been long in coming to this Court
considering that the comparative negligence statute in
Montana was adopted in 1975. A great number of other states
have passed upon the question. The latest is Elder v. Orluck
(Pa. 1986), 515 A.2d 517. The court there engaged in an
extensive discussion of the handling of this question by
courts in the several states and itself reached the
conclusion that it would support the combined negligence
rule. Pennsylvania, however, has a statute somewhat
different from ours, as do several others of the states that
have reached the same conclusion. For that reason we have
not extensively discussed those cases in this decision,
although it may be said that because of statutes or judicial
interpretation, the majority of states do adhere to the
combined comparison of negligence rule.
Considering all the factors, the rules on interpretation
of statutes, the holdings of the many other courts, the
policy of the state as we perceive it in comparative
negligence cases, and the fairness concept which underlined
the decision of the District Court, we conclude that Montana
should join the majority of states that support the combined
tortfeasors rule. We interpret S 27-1-702, MCA, as
requiring, in cases of multiple defendants, against whom
recovery is sought, that the negligence of the plaintiff is
to be compared with the combined negligence of the concurrent
tortfeasor defendants to determine if plaintiff may recover.
For that reason, we decline to issue a writ of supervisory
control as requested by petitioners which would modify or
reverse the decision of the District Court on this question.
Both sides in this case have raised questions relating
to the effect of either individual comparison or combined
comparison on the joint and several liability of concurrent
tortfeasors. In either case such considerations are beside
the point in this discussion. As the Pennsylvania Supreme
Court said in Elder v. Orluck, 515 A.2d at 525, "any
unfairness that results when a tortfeasor cannot be made to
his proportionate share the damages product
the joint and several liability doctrine. It does not result
from applying the 'combined comparisonf rule."
Since we determine to adhere to the combined comparison
of negligence rule, this case must go back for further
proceedings in the District Court on the issue of damages.
Petitioners, however, object to this, contending that
instructions given by the District Court in the first trial
of this bifurcated case misled the jury.
The District Court's charge to the jury on the subject
of comparative negligence included these instructions:
No. 11. Every person is responsible for injury to
the person or property of another, caused by want
of ordinary care or skill. When used in these
instructions, negligence means want of such
ordinary care or skill. Such want of ordinary care
or skill exists when there is a failure to do that
which a reasonable and prudent person would
ordinarily have done under the existing
circumstances of the situation, or doing what such
person under the existing circumstances would not
have done.
No. 15. Negligence on the part of the Plaintiff
does not bar his recovery unless his negligence was
greater than the negligence of the Defendant from
whom he seeks recovery. However, the total amount
of damages the Plaintiff would otherwise be
entitled to recover will be reduced by the Court in
proportion to the amount of negligence attributable
to the Plaintiff.
No. 16. The laws of the State of Montana provide
that contributory negligence shall not bar recovery
in an action by any person or his legal
representative to recover damages for negligence
resulting in death or injury to the person or
property, if such negligence was not greater than
the negligence of the person against whom recovery
is sought, but any damage allowed shall be
diminished in proportion to the amount of
negligence attributable to the person recovering.
No. 17. You are instructed that the doctrine of
"comparative negligence" is applicable to this
case. You must first decide for each of the
parties whether each was negligent and whether each
of the parties' negligence, if any, was a legal
cause of the accident. If you determine that a
party was not negligent, or that his negligence was
not a legal cause of the accident, you should enter
zero percentage in the appropriate line next to
that party's name on the verdict form.
If any party was negligent and his negligence was a
legal cause of the accident, you must determine the
degree of his negligence and assess to him a
percentage of negligence contributing as a legal
cause to the accident and enter the percentage on
the appropriate line next to that party's name on
the verdict form.
The petitioners contend that because the instructions
refer to "the defendant" in the singular and not in the
plural, that the jury was misinstructed if combined
comparison of negligence is now applied. Therefore, they
cI.aim, the question of the defendants1 negligence must be
retried.
The plaintiff responds that the use of the singular
"defendant" in the instructions was the result of objections
made at the time of settling instructions by the petitioners,
and that the court instructed the jury in the manner it did
reserving to the parties the right to argue post-verdict as
to the legal effect of the comparative negligence statute.
In examining this issue in the light of the proceedings
before the District Court, it occurs to us that the
instructions to the jury on the effect of comparative
negligence were immaterial. This was a bifurcated case, and
the only issue submitted to the jury was the duty of deciding
the proportionate negligence, if any, of the parties.
In State Bank of Townsend v. Maryann's, Inc. (Mont.
1983), 664 P.2d 295, 301, 40 St.Rep. 637, Justice Weber
emphasized the duty of a district court to instruct the jury
as to how to use a special verdict.
Court's instruction no. 17, which we have set out in
full above, carefully and properly instructs the jury as to
its use of the special verdict form. It was the duty of the
jury to determine factual issues as instructed by the court,
and not questions of law. The verdict form itself was
adequate to enable the jury to determine the factual issues
that were essential in this case. The question of damages
was reserved for a later trial and was no business of this
jury.
It was suggested to us in oral argument in this case,
that if the jury knew the effect of their findings in this
bifurcated case, that is, that the combined comparison of
negligence rule was going to be applied, that perhaps it
might have altered the percentages so as to achieve a
no-verdict result for the plaintiff. We cannot impugn the
integrity of the jury that it indulged in that kind of
manipulation. The single duty of the jury in this case was
to determine the applicable percentages of negligence, if
such negligence existed. We cannot order a new trial in this
case upon the mere speculation that if the jury could
foresee the precise effect of their factual determination,
even though not called on to determine damages, their factual
determination would be different from what they decided.
111.
For the reasons foregoing, we decline to issue a writ of
supervisory control directed to the District Court to modify
its determination as to the legal effect of § 27-1-702, MCA,
or to order a new trial on negligence in this bifurcated
case. We therefore deny the writ and remand this cause to
t h e D i s t r i c t Court f o r f u r t h e r p r o c e e d i n g s i n a c c o r d a n c e w i t h
t h i s Opinion.
Justice
W Concur:
e
Chief J u s t i c e
n
Mr. Justice L. C. Gulbrandson specially concurring and
dissenting.
I concur with the adoption of the theory of combined
negligence of concurrent tortfeasor defendants, but I do not
agree with its application in this case where the jury was
not instructed on its application. In my opinion, a new
trial should be ordered so that a properly instructed jury
can determine percentages of negligence, if any, of the
parties and fix, if necessary, an appropria damage award.
{;? &.
Mr. Chief Justice J. A. Turnage:
I concur with Mr. Justice Gulbrandson.