Gaertner v. Holcka

JANINE P. GESKE, J.

¶ 68. (dissenting). I dissent. The majority focuses on the wrong statute in concluding that Gaertner and her insurer, American Family, have no liability to her injured minor passenger, Justin, for his safety belt related injuries, and *465therefore that Holcka and her insurer, Catholic Mutual, have no right of contribution against Gaertner. Wisconsin Stat. § 347.48(2m)(g), the statute on which the majority relies, is strictly concerned with reducing the recoverable damages of an injured passenger who was not restrained by a safety belt at the time of the accident. That statute does not answer the real question presented in this case: Who between the two drivers is responsible for paying those reduced damages?

¶ 69. I conclude that Gaertner, the host driver, violated a safety statute, Wis. Stat. § 347.48(2m)(c),1 and was negligent per se. Because Gaertner was negligent, and her negligence caused Justin injuries, she has common liability with Holcka, the negligent driver of the other car; I therefore also conclude that Catholic Mutual, having paid all of Justin's recoverable damages on behalf of Holcka, is entitled to contribution from Gaertner and American Family for her portion of Justin's injuries.

I.

¶ 70. I disagree with the majority's application of Wis. Stat. § 347.48(2m)(g), the primary purpose of which is to limit the plaintiff s damages. That provision states:

(g) Evidence of compliance or failure to comply with par. (b), (c) or (d) is admissible in any civil action for personal injuries or property damage resulting from the use or operation of a motor vehi*466cle. Notwithstanding s. 895.045, with respect to injuries or damages determined to have been caused by a failure to comply with par. (b), (c) or (d), such a failure shall not reduce the recovery for those injuries or damages by more than 15%. This paragraph does not affect the determination of causal negligence in the action. (Emphasis added.)

¶ 71. The recovery reduction provision of Wis. Stat. § 347.48(2m)(g) does not address the question before this court — is contribution prohibited between a negligent driver and a negligent host driver who had no basis to reasonably believe that his or her minor passenger was properly restrained by a safety belt? The thrust of Wis. Stat. § 347.48(2m)(g) is to cap the reduction of an unrestrained plaintiff s recoverable damages. The statute does not address any limitation or reduction of a party's negligence.

¶ 72. Another provision, Wis. Stat. § 347.48(2m)(c), controls the outcome in this case. That provision states:

(c) If a motor vehicle is required to be equipped with safety belts in this state, no person may operate that motor vehicle unless he or she reasonably believes that each passenger who is at least 4 years old and not more than 15 years old and who is seated at a designated seating position in the front seat required under 49 CFR 571 to have a safety belt installed or at a designated seating position in the seats, other than the front seats, for which a shoulder harness has been installed is properly restrained.

Based on the terms of this subsection, I conclude that Wis. Stat. § 347.48(2m)(c) is a safety statute.

*467II.

¶ 73. The violation of a safety statute constitutes negligence per se if three elements are present: 1) the harm inflicted was the type the statute was designed to prevent; 2) the person injured was within the class of persons sought to be protected; and 3) there is some expression of legislative intent that the statute become a basis for the imposition of civil liability. See Tatur v. Solsrud, 174 Wis. 2d 735, 743, 498 N.W.2d 232 (1993).

¶ 74. The reasons I conclude that Wis. Stat. § 347.48(2m)(c) is a safety statute, and that Gaertner is negligent per se, are the following. Taking the class element first, there is no dispute that Justin, an 11-year old passenger in a car operated by Gaertner and having rear seat shoulder harness restraints, is a member of the class of persons meant to be protected by the statute, namely, minors between the ages of 4 and 15. See Wis. Stat. § 347.48(2m)(c).2 Taking the harm element next, Justin's safety belt related injury following the impact with Holcka's car is one of the types of harm this safety statute was enacted to prevent. Finally, I discern a legislative intent, based on the language of the statute as a whole and on its legislative history, that a host driver's failure to comply with Wis. Stat. § 347.48(2m)(c) is negligence per se and forms the basis *468for civil liability.3 I discuss the latter two elements more fully below.

¶ 75. The type of harm requirement is met in this case. No one contends that safety belts prevent motor vehicle accidents. Instead, the purpose of safety belts is to avoid injury, or at least to avoid the enhanced or incremental injuries that can occur when, in a vehicle accident, the passenger's body is unrestrained and free to contact fixtures and objects within the vehicle interior. See Bentzler v. Braun, 34 Wis. 2d 362, 387, 149 N.W.2d 626 (1967). These contacts are often referred to as "second collisions." See Monte E. Weiss, The Enhanced Injury Theory as a Defense, 69 Wis. Lawyer 10 (Nov. 1996).

¶ 76. For some time Wisconsin has recognized that a tortfeasor can be liable for enhanced injuries. See Farrell v. John Deere Co., 151 Wis. 2d 45, 60-61, 443 N.W.2d 50 (Ct. App. 1989) (listing cases)). This court recognized the potential for incremental or enhanced injuries particularly in the case of a failure to *469wear safety belts in Foley v. City of West Allis, 113 Wis. 2d 475, 335 N.W.2d 824 (1983).

¶ 77. According to the testimony of an expert witness, Justin sustained enhanced injuries because he was not restrained by a shoulder harness safety belt at the time of the accident. I conclude that Justin's safety belt related injuries are one of the types of injuries this statute was designed to prevent.

¶ 78. Finally, I conclude that the third element, the "legislative intent" requirement for per se liability, is also met in this case.

¶ 79. As originally enacted, Wis. Stat. § 347.48 required the presence of seat belts in cars manufactured or assembled beginning with the 1962 models. This court first interpreted that statute in 1967. See Bentzler, 34 Wis. 2d 362. The Bentzler court concluded that the statute did not require safety belt use, but also acknowledged that a failure to use the belt may be considered ordinary negligence that contributes to the injuries, if proper evidence of cause and effect is introduced.

¶ 80. The legislature amended Wis. Stat. § 347.48 following our decision in Foley, 113 Wis. 2d 475. In that case, the plaintiffs were two adults, one a passenger and one a driver, neither of whom was wearing safety belts. They sued the driver of the other car. The jury attributed some negligence for the collision to both drivers. The jury also found that the unbelted passenger was 70 percent negligent for not having used her safety belt. This court said that causal negligence is determined first, and where there are incremental injuries caused by a failure to use a safety belt, those injuries are treated separately for purposes of calculating recoverable damages. 113 Wis. 2d at 490. Had this court not reached that conclusion in Foley, the unbelted *470passenger plaintiff would have recovered nothing from the defendant negligent driver.

¶ 81. The legislature decided to modify the effect of the Foley decision when, by virtue of 1987 Wis. Act 132, it amended Wis. Stat. § 347.48, and placed a ceiling on how much a passenger's damages can be reduced for his or her own negligence in failing to wear a safety belt. See App. A-Res-10.4 The amended statute cautioned, however, after limiting the permissible reduction of the plaintiffs damages to 15 percent, "This paragraph does not affect the determination of causal negligence in the action." Id. at 12.

¶ 82. The Legislative Council Staffs description of 1987 Wis. Act 132 also highlighted a distinction between the facts in Foley and the newer provisions of the Act: "The driver of a motor vehicle has responsibility under the Act regarding a young passenger's compliance with the law." App. A-Res-4.

¶ 83. As the legislative history of Wis. Stat. § 347.48 recognizes, there can be more than one cause of a person's injuries, those causes including the failure to wear a safety belt. See App. A-Res-7. Logically, then, failure to ensure that one's minor passenger wears a safety belt can be a cause of the passenger's injuries.

¶ 84. This court observed in Theisen v. Milwaukee Auto. Mut. Ins., 18 Wis. 2d 91, 118 N.W.2d 140 (1962), that when assessing the negligence of the host driver or another driver, and the guest passenger, "the *471ultimate question relating to their respective negligence is whether such negligence caused the guest's injuries. In most cases it is not necessary to determine whether the lack of care of the various parties found negligent caused the collision as distinguished from the injuries. . .the apportionment question likewise should then be submitted only in terms of causing the plaintiffs injuries." (Emphasis added.) Thiesen, 18 Wis. 2d at 106-07.' Similarly, the person who fails to comply with Wis. Stat. § 347.48(2m)(c) is causally negligent, and should be required to contribute to the payment of the injured passenger's recoverable damages.

¶ 85. Gaertner and American Family assert that determining a violation of Wis. Stat. § 347.48(2m)(c) to be negligence per se would be absurd, because that interpretation would penalize operators who fail to ensure that minors over 4 years old are buckled. The absurdity arises, according to Gaertner and her insurer, when one reads another subsection, Wis. Stat. § 347.48(4)(a)2, requiring use of a child safety restraint system for minor passengers between 2 and 4 years of age. That subsection further states that failure to comply "does not by itself constitute negligence." Holcka and her insurer respond by contending that the absence of the language found in Wis. Stat. § 347.48(4)(a)2, from Wis. Stat. § 347.48(2m) leads to the "inescapable conclusion" that a violation of sub. (2m) does constitute negligence per se.

¶ 86. Holcka's argument is more persuasive. I agree that the absence of the phrase "does not by itself constitute negligence" from Wis. Stat. § 347.48(2m), combined with the presence of the phrase "[t]his paragraph does not affect the determination of causal negligence in the action," in Wis. Stat. § 347.48(2m)(g) *472demonstrate a legislative intent to recognize a violation of Wis. Stat. § 347.48(2m)(c) as negligence per se. Whether this court would also conclude that a violation of the duty imposed by Wis. Stat. § 347.48(4)(a)2 constitutes common law negligence, despite the limiting language of that subsection, is a question for another day. In my view, it would be unjust not to impose liability on the host driver when, in violation of Wis. Stat. § 347.48(2m)(c), and in light of "the realities of the frequency of automobile accidents and the extensive injuries they cause, the general availability of seat belts, and the public knowledge that riders and drivers should 'buckle up for safety,' "5 Gaertner operated her vehicle without reasonably believing that her 11-year old passenger was restrained by a safety belt.

¶ 87. In sum, I conclude that Wis. Stat. § 347.48(2m)(c) is a safety statute. There is no dispute that Gaertner violated the duty imposed by that statute when she operated her vehicle without reasonably believing that Justin was restrained by a safety belt. Once Justin received injuries beyond those he would have sustained had he been restrained, Gaertner's conduct became negligence per se. She is civilly liable for Justin's damages.

III.

¶ 88. The majority failed to engage in an analysis of whether Wis. Stat. § 347.48(2m)(c) is a safety statute, apparently out of a fear that a conclusion such as mine would unavoidably lead to the question of contribution by the host driver, a question not yet reached by this court.

*473¶ 89. A claim for contribution is separate from and independent of the underlying claim. See Johnson v. Heintz, 73 Wis. 2d 286, 295, 243 N.W.2d 815 (1976). As the majority describes it, there are three prerequisites to a contribution claim: "1. Both parties must be joint negligent wrongdoers; 2. they must have common liability because of such negligence to the same person; [and] 3. one such party must have borne an unequal proportion of the common burden." Majority op. at 444, citing General Accident Ins. Co. v. Schoendorf & Sorgi, 202 Wis. 2d 98, 103, 549 N.W.2d 429 (1996).

¶ 90. "Whether common liability exists is determined at the time the damages were sustained." Teacher Retirement System of Texas v. Badger XVI Ltd. Psp., 205 Wis. 2d 532, 545, 556 N.W.2d 415 (Ct. App. 1996). In several cases involving complicated facts, Wisconsin courts have said that whether there is sufficient common liability to support a claim for contribution is a question of fact properly resolved at trial. See Teacher Retirement System, 205 Wis. 2d at 546; State Farm Mut. Auto. Ins. Co. v. Continental Cas. Co., 264 Wis. 493, 497, 59 N.W.2d 425 (1953). In this case, there was no trial, but the parties' stipulation provided that Holcka was negligent for causing the accident, and I conclude that the facts as stipulated6 *474demonstrate that Gaertner was negligent per se for violating Wis. Stat. § 347.48 (2m)(c). Further, it is undisputed that the conduct of both Holcka and Gaertner resulted in injury to Justin.

¶ 91. Gaertner and American Family dispute that there can be common liability in this case, because Gaertner's failure to ensure that Justin was restrained did not cause the accident. However, I conclude that common liability can exist when one of the negligent tortfeasors caused the accident and some injury, and the other negligent tortfeasor negligently caused additional injury at the same time.

¶ 92. In Schoendorf, we listed a number of examples of joint liability, even though there was some separation in time of the negligent acts. For example, we cited the analysis in Butzow v. Wausau Memorial Hosp. 51 Wis. 2d 281, 288-289, 187 N.W.2d 349 (1971)(original tortfeasor and physician jointly and severally liable only for aggravation of damages), and Restatement (Second) of Torts § 879 (1979)(discussing situations where the tortfeasors can be jointly liable only for the aggravation of initial injuries; in other situations, the tortfeasors can be jointly liable for the entire harm). The Farrell court also cited Sumnicht v. Toyota Motor Sales, U.S.A., 121 Wis. 2d 338, 359, 360 N.W.2d 2 (1984) (if more than one tortfeasor contributed to the injury, the law of joint and several liability applies); and Arbet v. Gussarson, 66 Wis. 2d 551, 557, 225 N.W.2d 431 (1975) (holding that it was not important that the automobile's design defect did not actually cause the initial accident, as long as it was a *475substantial factor in causing burn injury after gas tank erupted). See Farrell, 151 Wis. 2d at 60 n.3. In enhancement cases, "the successive tort-feasor is not jointly liable for all the injuries to the claimant, but only for those injuries caused by the tortious conduct over and above the damage or injury that would have occurred as a result of the accident absent the successor tortfeasor's conduct." Farrell, 151 Wis. 2d at 61.

¶ 93. Attempting to bolster its denial of a right to contribution, the majority observes that, in this case, Gaertner would end up liable for the bulk of Justin's recoverable damages despite the fact that her conduct caused only safety belt related injuries, and not the initial impact. This result, leaving the negligent driver responsible for 40% of Koldeway's damages, is apparently sufficient to persuade the majority that the seat belt defense cannot "be used as an affirmative action for contribution." Majority op. at 455.

¶ 94. I am not so persuaded. Finding Gaertner liable for the injuries she caused is not "wholly out of proportion to her culpability," see Rockweit v. Senecal, 197 Wis. 2d 409, 426, 541 N.W.2d 742 (1995), when the parties' stipulation already demonstrates that Gaertner is responsible for 70 percent of Justin's safety belt related injuries.

¶ 95. The majority's hesitation to recognize a claim for contribution also seems founded on fear that the defendant driver will somehow avoid his or her financial responsibility. "[U]se of the seat belt defense in an affirmative cause of action for contribution can drastically alter the landscape of liability by reducing defendants' overall financial responsibility, regardless of the amount of fault that is attributable to the defendant for causing the accident initially." Majority op. at 456. The majority continues, "Regardless of the defen*476dant's responsibility for causing the original accident, the (host's) failure to properly restrain a passenger could almost eliminate the defendant's financial responsibility altogether." Id.

¶ 96. In my view, recognizing a right to contribution in this case does not permit Holcka and her insurer to avoid their financial responsibility. Allowing contribution will not give the defendant driver any unwarranted "discount" on his or her financial obligation. When contribution is allowed, the burden of paying damages is distributed, not shifted. See Pachowitz v. Milwaukee & Suburban Transport Co., 56 Wis. 2d 383, 387, 202 N.W.2d 268 (1972). When contribution is allowed, the injured minor passenger is still made whole (subject to the maximum 15% reduction of recoverable damages under Wis. Stat. § 347.48) and the negligent host bears his or her share of the responsibility for the safety belt related injuries only.7 Equitable concerns are satisfied. Moreover, whether the minor passenger's safety belt related injuries are substantial or minimal makes no difference as to whether the right to contribution exists. Appellate courts decide questions of law based on the law, and not on palatable outcomes.

*477¶ 97. The majority focuses on the wrong side of the proportion. According to the expert testimony, had the host driver complied with the statute and ensured that her minor passenger was restrained, the bulk of Justin's injuries would not have occurred. Unless the defendant driver is entitled to contribution, he or she is disproportionately responsible for the plaintiff s recoverable damages. This disproportion is inequitable.

¶ 98. Ultimately, the majority concedes that Wis. Stat. § 347.48 does not preclude contribution by the host driver when it states, ". . . the seat belt defense does not, strictly speaking, affect the determination of causal negligence in any action for personal injury..." Majority op. at 456. The majority's reluctance to recognize a right of contribution in this case is based in part on the perception that the legislature should decide that question. Indeed, the legislature has already decided. Despite several amendments to the "seat belt law," contribution has not been precluded. Causal negligence is determined first. The defendant driver, Holcka, and the negligent host driver, Gaertner, are both causally negligent.

¶ 99. Justice Bradley’s concurrence misinterprets the Foley decision. Foley does not hold that the primary tortfeasor (the negligent driver) is immunized "from the full consequences of their negligence," see concurring op. at 462, but instead holds that a plaintiffs contributory negligence in failing to put on a safety belt should act to reduce the amount of recoverable damages. The reduction of damages discussed in Foley, and altered and codified in Wis. Stat. § 347.48(2m)(g), does not affect the negligent driver's liability for both initial and safety belt related dam*478ages.8 Pursuant to the statute, a plaintiffs safety belt negligence does not diminish a negligent driver's liability, it diminishes by 15% the amount of safety belt related damages the plaintiff can recover. See Wis. Stat. § 347.48(2m)(g). The concurrence errs when it advances the theory that safety belt negligence extinguishes the liability of the negligent driver for the safety belt related injuries to the plaintiff.

¶ 100. The concurrence states in paragraph 60 that, post-Fo/ey, the legislature "exposed the initial tortfeasor to liability for seat belt injury." Despite the earlier discussion by the concurrence, it now effectively concedes that the legislature has made the negligent driver liable for enhanced injuries, thereby making the negligent driver and the negligent host driver joint tortfeasors. The concurrence reads the stipulation to be one in which the parties have agreed to disregard what would be a joint and several liability for the seat belt related injuries between Gaertner and Holcka under current law, and to artificially create a successive tortfeasor status between them. I disagree. The stipulation does not say that, and the parties did not argue that.

¶ 101. In this case, the parties stipulated that Holcka is solely responsible for the accident. Therefore, under Foley she is liable for 100% of the recoverable damages. The parties also stipulated that 75% of the *479total injuries were caused by Justin's failure to wear a safety belt. In most cases, only the plaintiff can be found negligent for failing to wear a safety belt. In those cases, a plaintiff is 100% negligent for failing to buckle up. Here, we had a minor passenger so the parties then stipulated to divide up the "safety belt negligence" as follows: 70% of the safety belt related injuries were caused by Gaertner's negligence and 30% were caused by Justin's negligence. Justin's "safety belt negligence" becomes subject to Wis. Stat. § 347.48(2m)(g), reducing the total amount of recoverable enhanced damages by 15%. Since Holcka and Gaertner remain jointly and severally liable for the safety belt related injuries, Holcka and her insurer are entitled to contribution.

IV.

¶ 102. Finally, the majority looks to a forfeiture provision as an indication that the legislature, while requiring motorists to ensure that their minor passengers are restrained by safety belts, intended that the only consequence for violating that statute be a $10 forfeiture.9 The majority mistakenly relies on the existence of the forfeiture statute to manifest a legislative intent to preempt actions for contribution arising out of the negligent failure to ensure that a minor passenger is "buckled up." See majority op. at 452 n.6; 453-54.

¶ 103. By relying on a forfeiture provision and the 15 percent reduction in total recoverable damages to conclude there is no right of contribution here, the majority mixes apples and oranges and ignores legisla*480tive intent. Further, by this analysis the majority overlooks the existence of other forfeiture provisions arising from the motor vehicle code, which in no way limit the trial of negligence issues. See, e.g., Wis. Stat. § 347.06, 347.09 requiring lighted headlamps before operation; Wis. Stat. § 347.14, requiring stop lamps in working order before operation of vehicle; Wis. Stat. § 347.245, requiring display of slow moving vehicle emblem before operation of certain vehicles; and Wis. Stat. § 347.30, imposing forfeitures of $10 to $200 for violations of lighting provisions or display provisions.

¶ 104. Under the reasoning of the majority, an injured minor like Justin Koldeway can recover from the negligent driver 100% of his or her damages, minus 15% of his or her safety belt related damages. The host driver, who failed to ensure that the minor passenger was restrained, pays a $10 forfeiture to the State, and is free from all liability for the safety belt related injuries that he or she caused. This result cannot be what the legislature intended.

¶ 105. For the foregoing reasons, I respectfully dissent.

¶ 106. I am authorized to state that Justice Donald W. Steinmetz joins in this dissent.

Petitioner Holcka asserts that Gaertner also has common law liability to Justin for his enhanced injuries. Resolution of that question is not necessary to my analysis that Gaertner is statutorily liable for Justin's enhanced injuries.

Other subsections protect children up to the age of 2, and children between the ages of 2 and 4. See Wis. Stat. § 347.48(4) (a)l and (4)(a)2 (1989 — 90), respectively. In the 1995 — 96 version of the statute, the requirements of the former (4)(a)l and (4)(a)2 are telescoped into the current (4)(a)l. The current (4)(a)2 covers child safety restraint systems for children who are at least 4 years old, but less than 8 years old.

It is true that this court in Bentzler v. Braun, 34 Wis. 2d 362, 385, 149 N. W.2d 626 (1967), declined to interpret Wis. Stat. § 347.48 as a safety statute in the "sense that it is negligence per se for an occupant of an automobile to fail to use available seat belts," because Wis. Stat. § 347.48 did not, by its terms, require the use of seat belts. Instead, the Bentzler cotut stated that where the evidence showed a causal relationship between the person's injuries and his or her failure to use the seat belt, the jury could make a finding of ordinary negligence. See id. at 387. At the time Bentzler was decided, Wis. Stat. § 347.48 placed no obligation on a vehicle operator to ensure that his or her minor passenger was restrained by a safety belt. In 1991, at the time of the accident in this case, however, Wis. Stat. § 347.48(2m)(c) imposed just such an obligation. Thus, Bentzler does not preclude my determination that Wis. Stat. § 347.48(2m)(c) is a safety statute, the violation of which is negligence per se.

"Under Foley, if negligent failure to wear a safety belt is a cause of the injured person's injuries, the injured person's recoverable damages are to be reduced by the percentage of damages caused by failure to wear a safety belt. Under Act 132, recoverable damages may not be reduced by more than 15%, regardless of the percentage of damages caused by failure to wear a safety belt." App. A-Res-7.

Foley v. City of West Allis, 113 Wis. 2d 475, 483-84, 335 N.W.2d 824 (1983).

It is somewhat unfortunate that in this case, where the court is asked to decide questions of law with far-reaching consequences, we do not have a jury determination of negligence and damages but have only the limited facts as stipulated by the parties. The parties did agree the accident was caused solely by Holcka's conduct. They also agreed that 75 percent of Justin's injuries were caused by the failure to use a safety belt and 25 percent were caused by the accident. Gaertner's operation of her vehicle without reasonably believing or ensuring that Justin was wearing a safety belt caused 70 percent of his enhanced *474injuries due to the failure to wear a safety belt. Also according to the stipulation, Justin's failure to wear a safety belt caused 30 percent of his enhanced injuries due to the failure to wear a safety belt.

Presumably under the majority's reasoning, this court would not recognize any host liability for damages because of the host driver's failure to ensure that his or her minor passenger was restrained by a safety belt. Thus, an effect of the majority's reasoning is that if the minor passenger is less than 7 but more than 4 years old, and the neighbor transporting him or her had failed to ensure that the minor was restrained by a safety belt, the minor will never recover more than 85 percent of his or her safety belt related damages even though he or she could not have been contributorily negligent as a matter of law in failing to wear a safety belt. See Wis. Stat. § 891.44.

The statute has changed the theory of Foley, as at least part of that decision may be read. See 113 Wis. 2d at 489. As the concurrence reads it, Foley eliminated liability of the negligent driver for any of the safety belt related damages. Wisconsin Stat. § 347.48(2m)(g) effectively puts the negligent driver's liability back in, and merely places a ceiling on how much the plaintiff s failure to wear a safety belt can limit his or her recoverable damages for enhanced injuries.

The amount of the forfeiture ranges from $10 to $200 depending on the age of the minor passenger at the time of the violation. In this case, the $10 amount would apply because Justin was 11 years old at the time of the accident.