Today the Wisconsin Supreme Court released its decision in Michelle Richards v. Badger Mutual Insurance, an interesting case that attempts to discern joint and several liability in a drunk driving death. From Justice Roggensack\’s decision:

An ill-conceived idea between teenagers to \”get some beer\” one evening culminated in tragedy the next morning when an intoxicated Robert Zimmerlee, 19, failed to stop for a stop sign and smashed into the driver\’s side of Christopher Richards\’ vehicle, killing him instantly.

Actually Roggensack erred in this respect: the plan to get some beer didn\’t seem ill-conceived – in fact, it seemed very successful.

After procuring the beer from an over-21 year-old female friend, the two boys dropped her off at the bus stop and went to a party. (You\’d think they\’d give her a ride home after she did them such a big favor.) The beer party was held at Jennifer Spencer\’s house, which means that more 19 year-olds will begin reading Supreme Court opinions to find out where all the best parties are.

The decision essentially decides whether the driver of the car (Zimmerlee), the passenger in the car (David Schrimpf) and the purchaser of the beer (Tomakia Pratchet) are all joint and severally liable for the tragedy that befell Chris Richards when he was killed in the car crash. If they are joint and severally liable, they would be forced to pay a greater portion of the judgment in favor of Richards. Richards\’ family argues that the purchasing and drinking of the beer all represent a chain events for which Schrimpf is also liable, while the defendants\’ insurance company says there was no common scheme or plan to drink and drive, only to purchase the beer in the first place. Naturally, the Wisconsin Academy of Trial Lawyers filed an amicus brief on behalf of the plaintiff.

The court decided in favor of the insurance company – saying that while the joint and several liability statute is ambiguous, legislative intent and prior caselaw set a high standard for a \”common scheme or plan\” to prove joint and several liability. (Interestingly, the Court cites the Collins case, which was cited by Justice Louis Butler in his famous decision to hold lead paint companies liable for lead poisoning. Same case, two different philosophies on liability.)

From the decision, Paragraph 51:

In regard to the actions of Zimmerlee, Schrimpf, and Pratchet, it is undisputed that they agreed to purchase beer. When Schrimpf asked Pratchet to purchase beer and Zimmerlee drove her to the grocery and gave her the money that she used to purchase the beer, they acted \”in accordance with a common scheme or plan.\” Their procurement of beer was tortious. Wis. Stat. §§ 125.035(4)(b); 125.07(1). However, after that purchase, Pratchet had nothing further to do with the beer. She took a bus to an unnamed location. Zimmerlee and Schrimpf became parallel actors. Zimmerlee and Schrimpf separated, with Zimmerlee keeping the beer in his car. 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. § 895.045(2).

With Justice Crooks shifting over to side with the current three conservatives on the Court, this decision is a defeat for trial lawyers, who stood to benefit from higher payments by the defendants. It is always in WATL\’s interest to be able to cast as wide a net as possible – the more chances there are to sue, the increased chances there are that a \”deep pocket\” is somewhere in the net.

With sympathies to Chris Richards\’ family, I believe this is a good decision. Yes, buying them beer is a crime. Yes, being drunk and in the car with Zimmerlee makes Schrimpf partially liable. But I have never favored laws such as the \”Len Bias Law\” (which penalizes drug dealers more severely if one of their customers dies as a result of overdosing on the drugs provided), as one should have a reasonable expectation of what their punishment will be given their criminal act. (Although I recognize that\’s a criminal statute, while this is a civil case.)

Just as in the case of a drug dealer, once the beer left the hands of Tomakia Pratchet, she shouldn\’t be held liable for what the drunk teenagers do with it after drinking it. She committed a crime, and should be punished for it according to the statutory guidelines for providing alcohol to a minor – her sanction shouldn\’t be determined by the two knuckleheads that then get drunk and run someone down. This would be like holding a baseball bat manufacturer liable if one of their customers purchased a bat and beat someone to death with it.

Supporters of a more \”flexible\” reading of the law might charge that this case is \”conservative judicial activism,\” as the Court took an ambiguous statute and interpreted it to mean what they wanted it to mean. First, they charge that in every case with a conservative outcome. Second, the criteria the majority uses in formulating their argument are legitimate – trying to figure out what the statute meant to the Legislature at the time it was written, and by prior case law. That won\’t satisfy conservative critics, but they are the most solid criteria in ascertaining the meaning of a statute, something the Court has to do regularly.

SIDE NOTE: I am well aware that joint and several liability is a complex industry unto itself, and that these issues are simplified greatly in this post. Also, I have been told that since I am not an attorney, I cannot use the term \”Supra.\”

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