Pachowitz v. Milwaukee & Suburban Transport Corp.
| Citation | 202 N.W.2d 268,56 Wis.2d 383 |
| Decision Date | 28 November 1972 |
| Docket Number | No. 318,318 |
| Parties | Regina PACHOWITZ, Plaintiff, v. MILWAUKEE & SUBURBAN TRANSPORT CORP., Defendant and Third-Party Plaintiff-Appellant, City of Milwaukee, Third-Party Defendant-Respondent. |
| Court | United States State Supreme Court of Wisconsin |
Kivett & Kasdorf, Milwaukee (Harold A. Dall and James R. Gass, Milwaukee, of counsel), for appellant.
Joseph H. McGinn, Asst. City Atty., Milwaukee, for respondent.
The Transport Company invites this court to do two things: (1) Recognize a difference between 'active' and 'passive' negligence, not as to causation of injury, but as to responsibility for it; and (2) create a right to full indemnity on the part of one whose negligence contributed to an injury, if such negligence was 'passive,' as against a tort-feasor whose negligence contributed to the injury and was 'active.' The invitation is declined.
If the Transport Company were found to be 95 percent negligent, and the city 5 percent negligent, under its cause of action for contribution, the Transport Company would recover from the city 5 percent of the total award of damages. However, under its cause of action for indemnity, the Transport Company would have a right to 100 percent reimbursement against the city in such 95/5 situation if it could establish that its negligence was 'passive' while the negligence of the city was 'active.'
Such an all-or-nothing result between negligent co-tort-feasors would be contrary to the Wisconsin concept of imposing liability and awarding recovery in proportion to the percentage of causal negligence attributable to each of the co-tort-feasors. In 1913, the Wisconsin legislature rejected the all-or-nothing doctrine of contributory negligence, and enacted in its stead one of the nation's first comparative negligence statutes. 1 In 1918, this court recognized the right of contribution on a pro rata or equal basis, rejecting an all-or-nothing approach to allocating liability among co-tort-feasors. 2 In the landmark case in this state in this field, this court adopted comparative negligence as the sole measure of contribution between co-tort-feasors. 3 The all-from-one and nothing-from-the-other result of granting a right to full indemnity to a co-tort-feasor found 'passively' negligent as against one found 'actively' negligent would derail the longterm progress which presently provides contribution between co-tort-feasors based on their comparative negligence.
The granting of indemnity '. . . in any situation represents a judicial choice of policy. . . .' 4 Even before Bielski, this court held that a tort-feasor found guilty of ordinary negligence is not entitled to indemnity from one found guilty of gross negligence. 5 In Jacobs, it was noted that '. . . much of the law of indemnity was created by the courts in jurisdictions where contribution between tortfeasors was not allowed. . . .' 6 It was further noted that '. . . in such jurisdictions the courts may have been motivated more favorably toward indemnity than they would have been if contribution had been available so that the burden could be distributed rather than completely shifted.' 7
The full commitment of Bielski to contribution between joint tort-feasors on a comparative negligence basis is clear, this court there stating: 'If the doctrine is to do equity, there is no reason in logic or in natural justice why the shares of common liability of joint tortfeasors should not be translated into the percentage of the causal negligence which contributed to the injury. . . .' 8 Rejecting the 50--50 basis for contribution between joint tort -feasors, this court said in Bielski: '. . . It is difficult to justify, either on a layman's sense of justice of on natural justice, why a joint tortfeasor . . . who is found 5% causally negligent should be required to pay 50% of the loss by way of reimbursement to the co-tortfeasor who is 95% negligent.' 9
We would find the same difficulty in requiring an 'actively' negligent cotort-feasor who is five percent causally negligent to pay 100 percent of the loss, excusing entirely from liability the 'passively' negligent co-tort-feasor who is 95 percent negligent. A distinction can be made between 'active negligence' 10 and 'passive negligence.' 11 But the dividing line is blurred. (It is difficult to see how it would be applicable to the claims of neglignece involved in the case before us.) This court, in reaffirming the substantialfactor test in determining legal cause, rejected the passive-active distinction so far as the issue of causation is concerned, and showed little enthusiasm for the passive-active distinction. 12
However, it is not the difficulties of definition and application that lead us to reject entirely the suggestion that one found 'passively' negligent should have a claim for full indemnity against a co-tort-feasor found 'actively' negligent. In Bielski, this court struck down the long recognized distinction between 'gross negligence' 13 and 'ordinary negligence.' 14 We there held that the distinction '. . . no longer fulfills a purpose in comparative negligence, . . .' 15 and that '(i)n the field of contribution and indemnity, the doctrine of gross negligence has worked inequitably. . . .' 16 This court there concluded that '. . . Only by abolishing the present concept of gross negligence and considering such donduct as ordinary negligence and treating it in terms of degree on a comparative basis can an equitable and fair result be reached in all cases. . . .' 17
For the same reasons that the distinction between 'gross' and 'ordinary' negligence was abolished in Bielski, we now reject the invitation to establish a distinction between 'passive' and 'active' negligence as a basis for indemnity between co-tort-feasors. In so doing, in the words of Bielski:
'. . . Obviously, we are stressing the basic goal of the law of negligence, the equitable distribution of the loss in relation to the respective contribution of the faults causing it.' 18
Order affirmed, sustaining the dem...
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Tolbert v. Gerber Industries, Inc.
...similar rules. Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); Pachowitz v. Milwaukee & Suburban Transport Corp., 56 Wis.2d 383, 202 N.W.2d 268 (1972).Decisions reaching a contrary conclusion in the following cases are necessarily overruled: Hillman v. Elli......
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...the law of implied indemnity had been "blurred" or erased by the advent of comparative fault. See Pachowitz v. Milwaukee & Suburban Transp. Corp. , 56 Wis.2d 383, 202 N.W.2d 268, 271–72 (1972) (holding that the common law distinction had been replaced by comparative fault). In other words, ......
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Parks v. Union Carbide Corp., 61468
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