Hillman v. Wallin
| Decision Date | 22 February 1974 |
| Docket Number | No. 43651,43651 |
| Citation | 215 N.W.2d 810,298 Minn. 346 |
| Parties | Douglas HILLMAN, a minor, by Harris Hillman, His Father and Natural Guardian, and Harris Hillman, Individually, Respondents, v. Lyle WALLIN, Defendant and Third-Party Plaintiff, Appellant, LaDon Ellingson, Defendant and Third-Party Plaintiff, Respondent. Ronald KLEVEN, Defendant and Third-Party Plaintiff, Respondent, v. Mitchell THOFSON and Barbara Hanson, Third-Party Defendants, Respondent, Sandra Hillman, et al., Third-Party Defendants. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
A tortfeasor whose liability is predicated on his negligent failure to properly supervise those tortfeasors whose active negligence was the direct cause of plaintiff's injuries is entitled to indemnity based on the difference in character of the negligence of the parties. Because of this difference, it was improper to permit the jury to apportion liability under the comparative negligence statute.
William J. Nierengarten, Austin, for appellant.
Baudler & Baudler, Austin, and Ensign & Ensign, Northwood, Iowa, for Hillman.
F. Martin Senn, Waseca, for Ellingson.
Hoversten, Strom & Ryan, Kenneth M. Strom, and Craig W. Johnson, Austin, for Kleven.
Christian, Slen, Savelkoul, Johnson & Broberg, Albert Lea, for Thofson and Hanson.
Heard before KNUTSON, C.J., and KELLY, TODD, and MacLAUGHLIN, JJ., and considered and decided by the court.
This action was brought on behalf of Douglas Hillman, a minor, (hereafter plaintiff) to recover for personal injuries resulting from the horseplay of other students on a schoolbus, and by his father, Harris Hillman, to recover consequential damages. The suit was agaisnt Lyle Wallin, the driver of the schoolbus, and LaDon Ellingson and Ronald Kleven, the student passengers who caused the injury. Defendant Wallin cross-claimed against both Ellingson and Kleven, seeking indemnity or contribution. The jury apportioned the negligence of Wallin at 76 percent and Ellingson and Kleven at 12 percent each. Wallin appeals from denial of his motion for a new trial. We reverse and remand.
The incident causing plaintiff's injury occurred during the regular bus trip carrying students to their homes after school on April 8, 1969. The customary route of the bus after leaving the Glenville School was to proceed about 4 1/4 miles to a near-by grade school, a trip normally lasting about 12 minutes. Shortly after this trip began, a number of students on the bus began playing with a 1/4-inch plastic hose about 3 feet in length. Ellingson, an 18-year-old high school student, had brought the hose onto the bus concealed in his pocket. Ellingson and Kleven were seated near the rear of the bus while plaintiff was seated nearer the front. Kleven walked toward the front of the bus, stretching the hose with Ellingson holding the other end. When Kleven got to within 3 or 4 feet of the driver, the hose broke and struck plaintiff in the eye.
Wallin became aware of the plastic hose after the bus trip had begun. The bus was equipped with a large interior mirror which enabled the driver to see most students in the bus. Wallin observed Kleven stretching the hose down the aisle. Wallin, who had driven a schoolbus since September of 1966 and had driven this same route for 3 years, knew it was his reasonsibility to maintain discipline on the bus but made no effort to do so until reaching the stopping point at the grade school. He testified that at the time of the injury, his attention was directed at semitractor traffic approaching him and a line of vehicles following him.
Wallin contends that the trial court erred in deciding that he was not entitled to indemnity from Ellingson and Kleven. We hold that Wallin was entitled to indemnity from Ellingson and Kleven. Our holding on this issue is dispositive of the appeal and there is no point in discussing other issues raised.
Wallin cross-claimed against the two student defendants to recover contribution or indemnity for any liability incurred by reason of their negligence in injuring plaintiff. The trial court permitted the jury to apportion the negligence of the defendants and it found Wallin 76 percent and the two students each 12 percent negligent. The trial court did not rule on the bus driver's cross-claim.
Contribution and indemnity are both equitable remedies to provide restitution to a tortfeasor based on the degree of his culpability for a negligent act. The remedies differ in the character and amount of restitution allowed a joint tortfeasor.
'* * * Contribution is appropriate where there is a common liability among the parties, whereas indemnity is appropriate where one party has a primary or greater liability or duty which justly requires him to bear the whole of the burden as between the parties.' Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 371, 104 N.W.2d 843, 847 (1960); Haney v. International Harvester Co., 294 Minn. 375, 378, 201 N.W.2d 140, 142 (1972).
Wallin does not have a right to contribution from the students because there is no common liability for plaintiff's injuries. Wallin is liable only because of his failure to exercise reasonable care to prevent injuries caused by his student passengers. In Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 373, 104 N.W.2d 843, 848 (1960), we approved of a tortfeasor's receiving indemnity '(w)here the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged.' 1
Indemnity is permitted in some instances in favor of one wrongdoer because his negligence is imputed or vicarious. 2 Thus, we said in Keefer v. Al Johnson Const. Co., 292 Minn. 91, 100, 193 N.W.2d 305, 310 (1971):
In the case before us, the jury found that the bus driver was negligent in failing to properly supervise the children on the bus. Although he is legally responsible for injuries caused by student passengers which he could have prevented by using ordinary care, he is only secondarily liable for their negligent acts. We regard Ellingson and Kleven as being primary liable. 3 We might also characterize the negligence of the driver as 'passive' and the wrongdoing of Ellingson and Kleven as 'active.' 4
In some cases indemnity has been denied because the wrongdoers are in 'pari delicto.' 5 It seems appropriate to look at the other side of that coin, and ask: If the wrongdoers are not equally at fault, then what? The obvious answer is to look at their conduct and determine if fairness and justice would dictate that indemnity be awarded to the one least at fault. All of which is just another way of saying that we should look to the relative culpability of the conduct of the wrongdoers.
In White v. Johnson, 272 Minn. 363, 368, 137 N.W.2d 674, 677 (1965), this court stated that 'whether indemnity or contribution possibly lies in this case depends on the conduct of the two wrongdoers and the relative culpability of their actions.' As pointed out in 53 Minn.L.Rev. 1078, 1082, '(t)his language seems to indicate the essentially equitable nature of indemnity, which precludes the use of strict standards and which requires courts to examine carefully both parties' conduct in light of general notions of justice.'
Thus, given the facts of this case, if we look to one of the guidelines of Hendrickson, or describe...
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