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White v. Lunder - 66 Wis. 2d 563, 225 N.W.2d 442 (1975)

Rule:

For the purpose of applying Wisconsin's comparative negligence statute, Wis. Stat. § 895.045, both the causes of action for medical expenses and loss of consortium shall be deemed derivative; and the causal negligence of the injured spouse shall bar or limit the recovery of the claiming spouse pursuant to the terms of the comparative negligence statute. Wis. Stat. § 895.045 (1971) provides: Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.

Facts:

When a husband instructed the tortfeasor to start the boat motor while his wife was climbing into the boat, the wife was injured. The couple filed claims against the tortfeasor for loss of consortium and medical expenses incurred as a result of the boating accident. The trial court denied the husband's claims for loss of consortium and medical expenses because the contributory negligence of the husband and the wife combined exceeded the percentage of negligence of the tortfeasor.

Issue:

Where wife sustains bodily injury by reason of causal negligence of herself, her husband, and a third party, is the negligence of the spouses combined for purposes of comparing negligence with that of the third party and thereby determining whether husband recovers for medical expenses and for loss of consortium?

Answer:

No.

Conclusion:

On appeal, the court reversed the judgment of the trial court. The court determined that the husband's claims were derivative. If the wife's negligence had exceeded that of the tortfeasor, his claim would have been barred by the comparative negligence statute, Wis. Stat. § 895.045 (1971). Because neither spouse's negligence exceeded that of the tortfeasor, the court decided that the husband should recover, with his claim being reduced by both the percentage of negligence attributed to him and that attributed to his wife. The tortfeasor, who was found to have been causally negligent in the greatest degree, did not escape all liability.

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