Odenwalt v. Zaring , 102 Idaho 1 ( 1980 )

BAKES, Justice.

Defendant Bannock Creek Stockmen’s Association is composed entirely of Indian members. The association grazes both Indian and non-Indian owned livestock on the Fort Hall Indian Reservation. The non-Indian owners pay a fee for this service. In February, 1971, defendant Don Zaring entered into a contract with the association pursuant to which the association agreed to herd 200 head of Zaring’s cattle on the reservation.

In October of 1971 some of the cattle wandered through inadequate fencing onto an interstate highway. There plaintiff John Odenwalt’s pickup collided with one of Zaring’s cattle. Odenwalt sued both Zaring and the association for damages, alleging that the defendants were negligent in allowing the struck cow to roam unattended at night on a highway situated within a fenced area and herd district.

The association initially moved to dismiss the complaint against it on the ground that the district court lacked jurisdiction over the association and over the subject matter as it related to the association. The trial court denied the motion. A jury trial was held in December, 1977. The jury found that Odenwalt had sustained damages totaling $53,800.00 and allocated negligence as follows: plaintiff Odenwalt, 25%; defendant Zaring, 10%; and defendant association, 65%. The trial court, relying on I.C. § 6-801, entered judgment on the verdict in favor of Odenwalt against the association for $40,350.00, but denied Odenwalt any judgment against Zaring. Odenwalt then moved that the judgment be amended by including Zaring as a judgment debtor. The court denied the motion, holding that Odenwalt’s negligence had to be compared with each individual defendant’s negligence; that Odenwalt could not recover from Zaring because Odenwalt was more negligent than Zaring. Odenwalt appeals from this judgment; the association cross-appeals from the judgment and from the denial of its motion challenging jurisdiction.

I

The association, in support of its appeal from the order denying its motion for summary judgment, argues that Congress has plenary power over matters arising in Indian territory and that the courts of the State of Idaho lack subject matter jurisdiction here (1) because Congress has preempted the field and (2) because assumption of jurisdiction by the state would infringe upon the Shoshone-Bannock Tribe’s right of self-government. It is true that Congress has plenary power over affairs arising within Indian country, unless it has provided otherwise and unless the state has correspondingly assumed such jurisdiction. See 25 U.S.C. § 1322; I.C. § 67-5102; Kennerly v. District Court of the Ninth Judicial Dist. of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). It is also true that Idaho has not assumed jurisdiction over tort actions arising on the reservation.¹ This action, however, did not “arise on” the reservation.

“[T]ribal activities conducted outside the reservation present different considerations. ... Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973) (citation omitted).

It was similarly noted in Voorhees v. Spencer, 89 Nev. 1, 504 P.2d 1321, 1323-24 (1973), that “[ajbsent Congressional prohibition, if the event or matter in controversy which calls for judicial action arises outside Indian country, Indians are subject to the laws of the jurisdiction involved. .. . Indians have access to the State courts, and the State may regulate their activities outside Indian country, even though they are members of a Tribe and reside on a reservation.”

Thus, it was held in State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786, 789 (1973), that “state jurisdiction is proper in cases between Indians and non-Indians involving contractual obligations incurred off the reservation ...,” and in Crawford v. Roy, 577 P.2d 392, 393 (Mont.1978), that the state has jurisdiction “over a transaction involving an Indian party when that transaction involved significant contacts with the state outside reservation boundaries.” Accord, Little Horn State Bank v. Stops, 170 Mont. 510, 555 P.2d 211 (1976), cert. denied 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977) (state has jurisdiction where loan was obtained outside the boundaries of the reservation).

Nonetheless, the association contends that Congress has preempted this area by enacting substantial legislation governing grazing rights upon Indian lands, that the grazing agreement “which was apparently found to have been breached” was subject to substantial regulation by the Bureau of Indian Affairs. To support this argument, the association cites four statutes: 25 U.S.C. § 179 (driving stock to graze on Indian land without permission); 25 U.S.C. § 81 (dealing with contracts between Indians and non-Indians); 25 U.S.C. § 391 (restrictions on alienation of Indian land); and 25 U.S.C. § 397 (leasing of Indian lands). However, this is not a contract action, nor one dealing with Indian lands. Rather, this is a tort action for damages resulting from a collision with a cow which was negligently allowed to wander on the highway. Thus, the duty that was breached was not one of contract, but one to keep the cow off the highway, see, e. g., Cunningham v. Bundy, 100 Idaho 456, 600 P.2d 132 (1979); Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966); Corthell v. Pearson, 88 Idaho 295, 399 P.2d 266 (1965); and, as a corollary, to see that the fences were in repair and adequate to keep the cattle off the highway. Whitt v. Jarnagin, supra. The association has failed to call to our attention any federal statutes dealing with tort actions such as this one, and we do not see that the federal government has preempted state jurisdiction over this action.

The association similarly contends that the contacts of the association with the citizens of Idaho were minimal and that the duty upon which liability was premised arose out of a contract arising on the reservation such that state jurisdiction would “substantially interfere with the rights of the reservation Indians to have contracts which are intended to be performed strictly on the reservation, interpreted in light of the Indian customs and familiar terminology employed by the members of the Indian reservation.” ² However, the accident from which plaintiff’s claim arose was more than a minimal contact with a citizen of Idaho and occurred off the reservation. The district court did not err in assuming jurisdiction over the defendant association.

II

The second issue before us is whether the defendant Zaring, who was 10% negligent, is liable to plaintiff Odenwalt, who was 25% negligent. More broadly stated, the question is whether a plaintiff may recover from a defendant who is less negligent than the plaintiff, where the plaintiff’s negligence was less than the combined negligence of the negligent defendants. Two lines of authority have emerged. Under one approach, called the “individual” or “Wisconsin” rule, the plaintiff’s negligence is compared to the negligence of each individual defendant, such that a plaintiff may not recover from a defendant found to be as negligent or less negligent than himself. Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 207 N.W.2d 706 (1973); Rawson v. Lohsen, 145 N.J.Super. 71, 366 A.2d 1022 (1976); Stannard v. Harris, 380 A.2d 101 (Vt.1977); Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721 (1934). The second approach, termed the “unit” rule, permits the plaintiff to recover from any negligent defendant so long as the plaintiff’s negligence is less than the combined negligence of all the defendants. Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962); Graci v. Damon, - Mass.App. -, 374 N.E.2d 311 (1978), aff’d-Mass. -, 383 N.E.2d 842 (1978); Laubach v. Morgan, 588 P.2d 1071 (Okl.1978). Because we think it clear that when I.C. § 6-801 was enacted the Idaho legislature intended to adopt the Wisconsin or individual rule, we affirm the trial court.

Idaho’s comparative negligence statute, I.C. § 6-801, reads as follows:

“6-801. COMPARATIVE NEGLIGENCE-EFFECT OF CONTRIBUTORY NEGLIGENCE.-Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence or gross negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence or gross 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.”

The above statute, enacted in 1971, is virtually identical to the Wisconsin comparative negligence statute in effect in 1971.³ Wisconsin was one of a few states which pioneered the concept of comparative negligence. 1931 Wis.Laws ch. 242. With the exception of some dicta found in May v. Skelly Oil Co., 83 Wis.2d 30, 264 N.W.2d 574 (1978),⁴ the Wisconsin Supreme Court has consistently construed its comparative negligence statute to require individual or one-on-one comparison. Reiter v. Dyken, 95 Wis.2d 461, 290 N.W.2d 510 (1980); Soczka v. Rechner, 73 Wis.2d 157, 242 N.W.2d 910 (1976); Mariuzza v. Kenower, 68 Wis.2d 321, 228 N.W.2d 702 (1975); Schwenn v. Loraine Hotel Co., 14 Wis.2d 601, 111 N.W.2d 495 (1961); Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721 (1934). This court has consistently held that “[a] statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction.” Nixon v. Triber, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979). State v. Miles, 97 Idaho 396, 545 P.2d 484 (1976); Doggett v. Electronics Corp. of America, 93 Idaho 26, 454 P.2d 63 (1969). Therefore, in the absence of some other legislation which would clearly suggest a different result,⁵ we should follow the interpretation which the Wisconsin Supreme Court had placed upon their comparative negligence statute prior to 1971.

It must be remembered that the Idaho legislature did not intend to create a system of pure comparative negligence which always apportions loss according to fault. For example, under I.C. § 6-801, if a single plaintiff and a single defendant are both found to be 50% negligent, plaintiff recovers nothing. In that situation, loss is not allocated according to fault.⁶ The legislature has chosen to cut off the plaintiff’s right to recover at the point at which his negligence is equal to or greater than that of the person against whom recovery is sought. It would be incongruous to suggest that where there is one defendant and one plaintiff, and both are found to be equally negligent (50%), the plaintiff recovers nothing; but where there are two defendants and one plaintiff, and all three are found to be equally negligent (ZZlh%), the plaintiff may recover 66%% of his damages from either defendant.

We also note that the authors of a leading treatise on comparative negligence have concluded that Idaho has chosen to follow the Wisconsin or individual rule. “The Idaho comparative negligence act does not [pit] the plaintiff against all defendants as a unit, but rather assesses the plaintiff’s negligence against the individual negligence of each defendant.” C. Heft & C. Heft, Comparative Negligence Manual § 1.70 at 19 (1978).

Finally, it seems clear that the unit rule proposed by the appellant frequently achieves a harsh and unjust result. The oppressive nature of the unit rule is best exemplified by the facts of this case. Were we to adopt the unit rule in Idaho, the defendant Zaring, who was only 10% at fault, would be liable for 75% of the injuries to the plaintiff Odenwalt, who was 25% negligent. If for any reason Zaring was unable to obtain contribution from the association, he would wind up paying the great majority of the damages of a plaintiff whose negligence is 2lA times greater than his own. On the other hand, in every case where a plaintiff is barred from recovery against a defendant under the individual or Wisconsin rule, it is because the plaintiff is as much to blame as the defendant, or more so.

Whatever this Court may feel about the complex field of comparative fault, we are not given free rein. We are bound by the intent of the legislature. In view of our legislature’s adoption of the Wisconsin comparative negligence statute, legislative intent is readily ascertainable. We adopt the Wisconsin or individual rule.

The judgment of the trial court is affirmed in all respects. Costs to respondents. No attorney fees.

DONALDSON, C. J., and SHEPARD, J., concur.

1 . The State of Idaho has assumed civil jurisdiction over the following matters arising in Indian country: compulsory school attendance; juvenile delinquency and youth rehabilitation; dependent, neglected and abused children; insanities and mental illness; public assistance; domestic relations; and operation and management of motor vehicles upon highways and roads maintained by the county or state or political subdivision thereof. l.C. § 67-5101.

2 . The association also apparently maintains that the tribal court of the Shoshone-Bannock tribes has jurisdiction here because it has civil jurisdiction to hear causes of action involving contracts with its individual members, citing the Law & Order Code of the Shoshone-Bannock Tribes, Ch. 1, § 2, as amended on July 26, 1974. However, the accident occurred on October 26, 1971, three years before this amendment. Moreover, Ch. 2, § 1, of the Code, as adopted in 1963, provided for civil jurisdiction for the tribal court over “all suits wherein the defendant is a member of a recognized Indian tribe, residing on the reservation and where suit is for a money recovery where the amount sued for does not exceed $500.00.” Since no amendments prior to 1974 have been called to our attention, and since this action does not fall within that provision, we must assume that the tribal court would not have had jurisdiction of this action.

3 . I.C. § 6-801 permits recovery if the plaintiffs comparative negligence was not as great as the “negligence or gross negligence of the person against whom recovery is sought ....” Wis. Stat. § 895.045 omits the phrase “or gross negligence.” In 1971, the Wisconsin legislature changed the phrase “as great as” to “not greater than,” thus permitting the defendant to recover where the negligence of the plaintiff and defendant are both determined to be 50%. 1971 Wis.Laws ch. 47.

4 . In May, a majority of the Wisconsin court announced its intention to switch to the unit rule. Two years later, the Wisconsin Supreme Court decided instead to stick with the individual rule. Reiter v. Dyken, 95 Wis.2d 461, 290 N.W.2d 510 (1980). In rejecting the May dicta, the Reiter majority felt that a change in the method of comparison “would be better addressed to the legislature.” Id. 290 N.W.2d at 517. In any event, the May case would have had no effect on today’s decision. Our task is to determine the intent of the 1971 Idaho legislature. To that end, we look to the judicial gloss placed upon the Wisconsin comparative negligence statute prior to 1971. Even had the Wisconsin Supreme Court adhered to its 1978 dictal pronouncement in May, our construction of the 1971 Idaho comparative negligence statute would, and indeed must, remain the same.

5 . Appellant directs our attention to I.C. § 73-114, which provides that “[u]nless otherwise defined for purposes of a specific statute .. . the singular number includes the plural and the plural the singular ...Appellant argues that application of this section alters the literal language of I.C. § 6-801 as follows: that the plaintiff can have no recovery unless “his negligence was not as great as the negligence ... of the person [or persons] against whom recovery is sought.” Such a reading would, of course, tend to support the unit rule construction. However, I.C. § 73-114 is to be used only to give effect to legislative intent, not to determine it. We have recently held that “I.C. § 73-114 is not mandatory by its terms, but merely instructive that the singular may be extended or applied to the plural. It is not a rule of general application and applies only when necessary to carry out the obvious intent of the legislature.” C. Forsman Real Estate Co., Inc. v. Hatch, 97 Idaho 511, 514, 547 P.2d 1116, 1119 (1976).

6 . If loss was intended to be allocated according to fault, the defendant in the above case would be liable for 50% of plaintiffs damages. This is precisely what takes place under a pure comparative negligence system, but not under a modified system as in Idaho.