## Facts

- Rosemary White was injured in a boating accident involving her husband, Lloyd White, and James L. Lunder.
- Rosemary sued Lunder for personal injuries.
- Lloyd sued Lunder for (1) medical expenses incurred for Rosemary’s injuries and (2) loss of consortium.
- A jury apportioned causal negligence: Rosemary 30%, Lloyd 33%, and Lunder 37%.
- The trial court treated Lloyd’s claims as “derivative” and combined Lloyd’s 33% negligence with Rosemary’s 30%, attributing 63% negligence to Lloyd for purposes of his claims.
- Because 63% exceeded Lunder’s 37%, the trial court barred Lloyd’s recovery under Wisconsin’s comparative-negligence statute, and Lloyd appealed.

## Issues

1. When a wife is injured due to the causal negligence of herself, her husband, and a third party, must the spouses’ negligence be combined to determine whether the husband may recover medical expenses and loss of consortium from the third party?
2. Are the husband’s causes of action for medical expenses and loss of consortium “derivative,” and if so, what effect does that characterization have on comparative-negligence analysis?

## Decision

- The Wisconsin Supreme Court reversed and remanded.
- The court held the negligence of spouses is not combined for comparative-negligence comparison in the husband’s action against a third-party tortfeasor.
- The court held the husband’s claims for medical expenses and loss of consortium are “derivative” only in the sense that they depend on the defendant’s liability to the injured spouse, but they remain separate causes of action for purposes including comparative negligence.
- Accordingly, Lloyd’s recovery could not be barred by adding Rosemary’s negligence to his; his 33% negligence had to be compared only to Lunder’s 37%.

## Legal Principles

- Under Wisconsin comparative negligence, the statutory comparison is between the negligence of the plaintiff asserting the claim and the negligence of the defendant against whom recovery is sought.
- A spouse’s claim for medical expenses and loss of consortium arising from injury to the other spouse is derivative as to underlying liability (it depends on a tort against the injured spouse).
- Despite being derivative in origin, such claims are separate causes of action and do not require imputing or aggregating the injured spouse’s negligence to the claiming spouse for comparative-fault purposes.
- A trial court errs by treating “derivative” as a basis to merge spouses’ negligence percentages and thereby bar the claiming spouse’s recovery.

## Conclusion

The court held that a husband pursuing medical-expense and consortium damages from a third party must have his own negligence compared separately to the defendant’s, even though his claims arise from and depend on the wife’s injury; aggregating spouses’ negligence improperly bars recovery.


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