Foley v. City of West Allis, 81-1747
| Decision Date | 01 July 1983 |
| Docket Number | No. 81-1747,81-1747 |
| Citation | 335 N.W.2d 824,113 Wis.2d 475 |
| Parties | Daniel J. FOLEY and Zita A. Foley, his wife, Plaintiffs and Joint Appellants-Petitioners, v. CITY OF WEST ALLIS, a municipal corporation, Defendant-Respondent, Thomas C. Kowalski and American Family Mutual Insurance Company, Defendants and Third-Party Plaintiffs-Respondents, Allstate Insurance Company, Third-Party Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Mark W. Ninneman, Milwaukee (argued), for petitioners; Polland, Ninneman & Kohn, Milwaukee, and Frank Doster, Brown Deer, on brief.
Michael J. Sachen, City Atty., West Allis, for defendant-respondent.
John U. Schmid, Jr. and Mark A. Grady, Milwaukee (argued), for defendants and third-party plaintiffs-respondents; Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, on brief.
This is a review of an unpublished decision of the court of appeals, 109 Wis.2d 685, 325 N.W.2d 737, filed on September 27, 1982, affirming an order of the Circuit Court for Milwaukee County, Harold B. Jackson, Jr., Circuit Judge. The circuit court dismissed the plaintiffs' personal injury action on its merits because according to its calculations based on the jury's special verdict answers, each plaintiff's contributory negligence was greater than each defendant's negligence. In making its calculations, the circuit court treated each plaintiff's failure to wear available seat belts as it would treat any other form of negligence.
For the reasons set forth below, we hold that the circuit court erred in treating negligence consisting of failure to wear available seat belts like other kinds of negligence for the purposes of determining whether a plaintiff can recover from a defendant under the comparative negligence statute, sec. 895.045, Stats.1981-82. 1 When negligence consisting of failing to wear an available seat belt is not a cause of the collision but is a cause of a party's injury, such negligence should not be used to determine the injured party's contributory negligence for purposes of sec. 895.045, but should be used only to reduce the amount of damages recoverable. Accordingly, we reverse the decision of the court of appeals and remand the case to the circuit court to enter judgment on the verdict in favor of the plaintiffs in accordance with the directions set forth in this opinion.
This case arises out of an automobile accident that occurred on January 10, 1978, in the city of West Allis. Daniel Foley was driving the car in which his wife Zita Foley was a passenger. As he approached the intersection of 92nd and West Washington from the north, defendant Kowalski's car approached the same intersection from the south. Kowalski attempted to make a left turn. Neither driver saw the other because snow piled six to eight feet high on the median obstructed their vision. Kowalski pulled into the intersection and stopped in the median between the two hills of snow. Although he could not see oncoming traffic, he decided to pull out cautiously. He moved the nose of the car into oncoming traffic. At that point, he saw the Foley car, and Foley, moving at about 30 m.p.h., saw Kowalski. Although Foley jammed on the brakes, a collision occurred. Daniel Foley's head hit the ceiling of his car. Zita Foley was thrown into the dashboard, injuring her forehead, knees, and right hand and arm. Neither Daniel nor Zita Foley was wearing the shoulder-harness-lap seat belts with which the car was equipped.
Both Foleys filed suit against the city of West Allis, Kowalski, and Kowalski's insurance company. By virtue of cross- and counterclaims, Daniel Foley and his insurance company also became defendants in the action.
The case was tried before a jury, which concluded that all three defendants (Daniel Foley, the city of West Allis, and Kowalski) were negligent and that their negligence caused the collision. The jury also determined that both Daniel and Zita Foley, the plaintiffs, were negligent with respect to their own safety by failing to wear available seat belts. The jury further determined that the Foleys' negligence in failing to wear seat belts was a cause of their injuries.
The jury apportioned causal negligence among the three defendants relating to the collision as follows:
"Table 1
-------------------------
"Kowalski 47%
City of West Allis 23%
Daniel Foley 30%
-----
Total 100%"
The jury apportioned the causes of the plaintiffs' injuries, consisting of the defendants' negligence in causing the collision and the plaintiffs' negligence in failing to wear available seat belts as follows:
Using the jury's answers to the special verdict questions, the circuit court first determined that Daniel Foley could not recover any damages from the City of West Allis, since his negligence in causing the collision (30 percent) was greater than West Allis's (23 percent) (Table 1). Sec. 895.045, Stats.1981-82. To determine whether Daniel Foley's negligence was equal to or less than Kowalski's so that Daniel Foley could recover from Kowalski under sec. 895.045, the circuit court attempted first to calculate Kowalski's and Daniel Foley's "active" negligence for causing the injury (which is not the same as each of their active negligence for causing the collision, Table 1) and then to calculate Daniel Foley's total negligence causing his injury. Its calculation of Daniel Foley's total negligence had to be made by combining Daniel Foley's "active" negligence (that is, the collision negligence causing his injuries) with his "passive" negligence, that is, his failure to wear an available seat belt, which also helped to cause his injuries. To make these calculations, the circuit court looked at the total negligence causing Daniel Foley's injuries (100 percent) which was comprised of the three defendants' negligence in causing the collision plus Daniel Foley's negligence in failing to wear an available seat belt (Table 2). Since the jury determined that the defendants' combined negligence in causing the collision accounted for only 83 percent of the total negligence causing Daniel Foley's injury (Table 2), the circuit court scaled down the amount of the "active" collision negligence of each defendant (Table 1) to reflect the fact that their combined negligence caused only 83 percent of Daniel Foley's injuries. Using this scaled-down approach, the circuit court calculated Kowalski's active causal negligence for Daniel Foley's injury as 39.01 percent, that is, 83 percent of the 47 percent which the jury attributed to him as causal negligence for the collision (Table 1). The circuit court calculated Daniel Foley's active causal negligence for his own injury as 24.90 percent, that is, 83 percent of the 30 percent, which the jury attributed to him as causal negligence for the collision (Table 1). The circuit court then added Daniel Foley's "passive" seat-belt negligence causing his injury--17 percent--to the 24.90 percentage representing his "collision" negligence which caused injury, making Daniel Foley's total negligence causing his injury 41.90 percent. Since Daniel Foley's total negligence of 41.90 percent is greater than Kowalski's total negligence of 39.01 percent, the circuit court concluded that Daniel Foley was barred from recovering from Kowalski under sec. 895.045. 2
The circuit court determined that Zita Foley could not recover from any defendant because her total negligence causing her injury, zero percent active negligence and 70 percent "passive" seat-belt negligence, exceeded the 30 percent figure which the jury determined to be the active negligence of all the defendants causing her injury (Table 3).
The court of appeals affirmed the circuit court's order dismissing the case on its merits, holding that the Foleys had waived any objection to the special verdict questions by failing to object to them at trial and that the circuit court did not err in calculating Daniel Foley's total negligence or in barring both Foleys from recovering damages.
In accepting the Foleys' petition for review, this court limited the issues it would consider as follows:
We begin with the first and third issues concerning the effect of the seat-belt defense on calculation of damages and determination of liability; we then consider whether this verdict form was proper.
This court was one of the first courts to hold that an automobile occupant has a duty based on the common law standard of ordinary care to use available seat belts, Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967). 3 Bentzler recognized that there was a demonstrable link between wearing seat belts and minimizing injuries....
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