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Grandstaff v. Hawks5/31/2000
cent less for the jury to allocate between D1 and D2.
Continuing the example, suppose that the jury finds that P1's fault contributed to 20% of his injuries, and that the combined fault of D1 and D2 was the sole cause-in-fact of the collision. On a verdict form similar to the one in T.P.I. 3-Civil 3.60, the jury allocates fault in the following way: 20% of the fault to P1; 35% of the fault to D1; and 45% of the fault to D2. Based on this verdict, the trial court must decide who pays what to whom. In a multi-party action like this one, a plaintiff may recover only if his fault is less than the combined fault of all tortfeasors. See McIntyre v. Balentine, 833 S.W.2d at 58. Because the verdict form does not specify whether P1 contributed to the collision, the trial court cannot tell whether the jury considered P1 to be a "tortfeasor" or not. If P1 is treated as one of the "tortfeasors," the following is the result:
(a) D1 may recover because D1's fault (35%) is less than the combined fault of P1 and D2 (20% + 45% = 65%). Therefore, D1 will recover 45% of his damages from D2, but will recover nothing from P1.
(b) D2 may recover because D2's fault (45%) is less than the combined fault of P1 and D1 (20% + 35% = 55%). Therefore, D2 will recover 35% of his damages from D1, but will recover nothing from P1.16
(c) P1 may recover because P1's fault (20%) is less than the combined fault of D1 and D2 (35% + 45% = 80%). Therefore, P1 will recover 35% of his damages from D1 and 45% of his damages from D2.
The analysis changes if the trial court does not treat P1 as a "tortfeasor" and does not consider the amount of fault allocated to P1. Then, both P1 and D1 will recover as before, but D2 will not recover because D2's fault (45%) is greater than D1's fault (35%). In either situation, the jury's consideration of P1's fault affects the drivers' rights to recover from each other.
The outcome will change again if the trial court instructs the jury not to treat P1 as a "tortfeasor" and to allocate 100% of the fault between only the two drivers. Assume that the jury now allocates the 20% of the fault originally allocated to P1 evenly between the two drivers, thereby allocating 45% of the fault to D1 and 55% of the fault to D2. Under this scenario, P1 will still recover, and D2 will still not recover from D1 because his fault is still more than D1's fault. However, D1 will now recover 55% of his damages, rather than the 45% recovery in the former two scenarios.
These three scenarios illustrate the importance of determining whether a passenger who did not cause the collision should be considered as one of the tortfeasors if either or both drivers assert that the passenger's conduct contributed to his or her own injuries. The Wisconsin Supreme Court has addressed this matter by distinguishing between the "active" and "passive" negligence of the passenger. Passive negligence contributes to the passenger's injuries but, unlike active negligence, is not a cause of the collision itself. The passenger's passive negligence is "immaterial with respect to the right of one driver to recover from the other." McConville v. State Farm Mut. Auto. Ins. Co., 113 N.W.2d 14, 20 (Wis. 1962). Therefore, the jury may only compare the passenger's active negligence, that is the passenger's negligence that was a cause of the collision itself, with the negligence of the drivers. Then, it must separately consider the passenger's passive negligence, if any, to reduce the plaintiff's recovery.
As a result of the decision in McConville v. State Farm Mut. Auto. Ins. Co., the Wisconsin courts use a verdict form that instructs the jury to allocate the percentage of
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