White v. Lunder

225 N.W.2d 442 (1975)

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Nature of the Case

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Facts

W was injured while pleasure-boating with H and James Lunder (D). The accident was caused by the negligence of W, H and D. W sued D to recover. H sued D to recover for loss of consortium and medical expenses. H was not physically injured. W did not sue H. D did not file a counter or cross-claim against H. The jury found W 30 percent, H 33 percent, and D 37 percent negligent. The negligence of H and W aggregates to 63 percent, which the court held barred H from recovery. Under the comparative-negligence statute, a plaintiff is not barred from recovery for his own contributory negligence if that negligence is not as great as D's. The court imputed W’s negligence to H, and at 63% vs. 37%, H was not entitled to recover under the comparative negligence statute. H appealed. H contends that it is improper to aggregate the negligence of two or more parties under any circumstances. As for floss of consortium, H contends that if the cause of action is found to be derivative and dependent, then the same formula he recommends above should be applied. If the cause of action is found to be separate and independent, H contends that 'only his negligence, if any, should be a defense.'