## Facts

- Two underage acquaintances, David Schrimpf and Robert Zimmerlee, sought to obtain beer but were unable to purchase it legally.
- Schrimpf arranged for an adult co-worker, Tomakia Pratchet, to buy an 18-pack of beer as a straw purchaser using money provided by Zimmerlee.
- After the purchase, Pratchet was dropped off; later Schrimpf and Zimmerlee took the beer to a party.
- Zimmerlee drank heavily (about half the beer); Schrimpf drank some.
- Around 7:30 a.m., Zimmerlee drove with Schrimpf as a passenger, ran a stop sign within a short distance, and collided with Chris Richards’s vehicle, killing him.
- The decedent’s widow, Michelle Richards, settled with Zimmerlee and his insurer, then sued Schrimpf and his insurer for negligence related to the illegal procurement and consumption of alcohol; Schrimpf brought Pratchet in as a third-party defendant.
- The parties stipulated to comparative negligence (Zimmerlee 72%, Schrimpf 14%, Pratchet 14%) and to damages allocation, leaving for the court whether Schrimpf and Pratchet acted “in accordance with a common scheme or plan” under Wis. Stat. § 895.045(2), which would trigger joint and several liability for the combined $500,000 attributed to Schrimpf and Pratchet.

## Issues

1. Whether Schrimpf and Pratchet acted “in accordance with a common scheme or plan” under Wis. Stat. § 895.045(2) such that they were jointly and severally liable for damages attributed to their combined negligence.
2. Whether a shared plan to assist an underage beer purchase satisfies § 895.045(2) when the injury results from later intoxicated driving by a third person.

## Decision

- The Supreme Court of Wisconsin affirmed the court of appeals and rejected the circuit court’s imposition of joint and several liability.
- The court held Schrimpf and Pratchet were not acting pursuant to a common scheme or plan that resulted in the wrongful-death damages.
- As a result, § 895.045(2) did not make Schrimpf and Pratchet jointly and severally liable for the full $500,000 attributed to their combined negligence; liability remained several based on their stipulated shares.

## Legal Principles

- Wis. Stat. § 895.045(2) operates as an exception to ordinary comparative-fault limits on joint and several liability by permitting such liability for persons acting “in accordance with a common scheme or plan.”
- Section 895.045(2) is a legislative codification of concerted-action liability.
- Concerted-action liability requires (1) an agreement to engage in tortious conduct and (2) that the agreed tortious conduct is the conduct that results in the plaintiff’s injury.
- An agreement to facilitate an underage alcohol purchase, without an agreement to engage in the injury-producing tortious conduct (here, intoxicated driving), is insufficient to establish a “common scheme or plan” under § 895.045(2).
- “But for” causal contribution from coordinated conduct does not, by itself, establish the statutory common-scheme requirement when the injury results from later, independent tortious conduct.

## Conclusion

The court held that helping an underage person obtain beer did not constitute a § 895.045(2) common scheme or plan to commit the tortious conduct that caused the death—intoxicated driving—so the defendants were not jointly and severally liable for the damages attributed to their combined negligence.


Richards v. Badger Mut. Ins. Co., 749 N.W.2d 581 (Wis. 2008)