Vol. 76, No. 2, February
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Common Law and Statutory Language Create Flaw in Frostman
The November editorial, "Municipal Liability for Motor Vehicle
Negligence," was interesting and informative. Douglas Bauman, its
author, discussed a flaw in Frostman v. State Farm Mutual Auto. Ins.
Co., 171 Wis. 2d 138, 491 N.W.2d 100 (Ct. App. 1992). He described
this flaw as treating interchangeably two distinct concepts: 1)
municipal immunity, and 2) "proximate cause." While I agree with that
conclusion, I believe that the underlying difficulty is caused by
unfortunate common law and statutory language.
The Frostman court concluded that Wis. Stat. section
345.05(2) (1977) was a legislative policy determination abrogating the
common law doctrine Mr. Bauman describes as "proximate cause." The court
did so by first examining section 345.05(2)(a), which provided in
"(2) Any of the following may file a claim for damages against the
state or municipality concerned ...:
"(a) A person suffering any damage proximately resulting from the
negligent operation of a motor vehicle ...."
The Frostman court was faced with Sanem v. Home Ins.
Co., 119 Wis. 2d 530, 350 N.W.2d 89 (1984), where the supreme court
held that a jury could have found a county negligent in creating a snow
mound that blocked an automobile driver's vision, causing an accident.
The supreme court concluded that public policy considerations for not
imposing liability in spite of a finding of negligence precluded the
imposition of liability on the county. Of six identified public policy
factors, the court invoked two: "[A]llowance of recovery would place too
unreasonable a burden on the county," and "[A]llowance of recovery would
enter a field that has no sensible or just stopping point." On its face,
Sanem permitted the use of public policy factors to prevent a
recovery from a municipality.
Frostman distinguished Sanem in two ways. First,
quoting Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d
618 (1962), the court noted, "[S]o far as governmental responsibility
for torts is concerned, the rule is liability; the exception is
immunity." While this is accurate, Holytz did not discuss the
public policy factors that preclude liability notwithstanding causal
negligence, even though that concept was well established when
Holytz was written. Holytz abolished governmental
immunity, a concept distinct from the principle that public policy or
"X" factors can prevent liability even when causal negligence
The Frostman court also distinguished Sanem because
"[i]n Sanem, there was no statutory provision expressly
imposing liability. Here, the legislature has expressly provided for
municipal liability for motor vehicle accidents. Section 345.05(2)...."
While that interpretation of Sanem may be correct, Wis. Stat.
section 345.05(2) abrogates immunity. As just noted, governmental
immunity is a concept unrelated to policy factors that delimit
liability. One cannot validly distinguish Sanem on this basis.
Thus, neither reason the court of appeals gave for distinguishing
Sanem supports the court's conclusion.
While Mr. Bauman's editorial suggests either a judicial or a
legislative remedy to the problem caused by Frostman, I believe
that the problem is more extensive and can only be solved by recognizing
that the phrase "proximate cause" is inherently confusing and has been
used to define at least two dissimilar concepts. Wis. Stat. section
345.05(2), which underpinned Frostman, uses the phrase
"proximately resulting." Some history shows how this phrase permeates
our legal lexicon.
In Palsgraf v. Long Island Railroad, 162 N.E. 99 (1928), the
New York Court of Appeals concluded that because Mrs. Palsgraf was not
in the zone of risk, the railroad was not liable when a scale fell on
her. Justice Andrews dissented, arguing that the railroad was liable to
everyone injured by its negligence and could only be absolved from
liability for reasons of public policy, which would be invoked by
judges. He termed this concept of policy reasons for nonliability
Wisconsin followed Justice Andrew's dissent in Osborne v.
Montgomery, 203 Wis. 223, 234 N.W. 372 (1931): "Any rule which
operates to limit liability for a wrongful act must be derived from
judicial policy and its limits cannot be defined by any formula capable
of automatic application but must rest in the sound dis-cretion of the
court." The court also examined the use of the phrase "proxi-mate cause"
and determined that it was misleading to lawyers as well as jurors.
"Etymologically it refers to the next or nearest cause .... It
undoubtedly leads to a great deal of confused thinking." A reason for
this confusion is that while the "proximate" in "proximate cause"
suggests a nearness or close relation of one thing to another, not all
the public policy reasons pertain to nearness or closeness.
In 1938, U.W. Law School Prof. Richard V. Campbell wrote "Duty, Fault
and Legal Cause," published in the Wisconsin Law Review. He
concluded that the phrase "proximate cause" was used to describe two
significantly different limitations on extent of liability, 1) lack of
causal connection in fact, and 2) policy factors making it unfair to
hold a party liable. He felt that this choice of words was unfortunate
and had a tendency to confuse issues. By 1962, Campbell concluded:
"Various legal terms have been selected for the firing squad, I nominate
'proximate cause.'" Richard V. Campbell, Torts, 1941 Wis. L.
Rev. 110, 113.
But, courts and attorneys still continue to use the term, often
improperly as a synonym for "cause in fact" or "substantial factor."
A case law LOIS search for the term "proximate cause" produced 348
hits, many of which use the phrase as a synonym for policy or "X"
factors and many of which confuse the phrase with "cause in fact" or
The legislature has not helped the situation either, using the term
"proximate cause" as a synonym for "cause in fact" or "substantial
factor." See Wis. Stat. §§ 895.44, 345.05(2).
A recent decision concludes that because duty, predicated on
foreseeability and or policy factors are both questions of law, "duty of
care should now be analyzed under the public policy framework."
Alvarado v. Sersch, 2002 WI App 227, ¶25. Prof. Campbell
addressed this issue, and concluded that "foreseeability" in the
negligence analysis means foreseeability of some harm to some person,
while used as a test of policy factors, means "a foreseeability much
more closely identified with the particular plaintiff or the class of
which he is a member and the interest of the plaintiff which is actually
invaded." Richard V. Campbell, Duty, Fault and Legal Cause,
1938 Wis. L. Rev. 402, 408-09. Alvarado did not consider this
Prof. Campbell adopted a formula that, if followed, avoids the
problem by not using the phrase "proximate cause," though it addresses
the policy issues that the phrase sometimes encompasses. It is as easy
as A, B, C, D, and X. A is duty, which focuses on foreseeability; B is
breach of duty; C is cause in fact or "substantial factor;" D is
damages; and X or policy factors are the factors used by judges to
delimit liability after a jury has found damages caused by negligence.
Had the Frostman court used this formula instead of attempting
to distinguish Sanem, the result would have been consistent
with both the legislative and common law factors in Wisconsin negligence
law. The result would have depended upon whether the record in
Frostman was developed enough to apply policy or "X" factors,
and if so, whether those factors would preclude liability.
In my view, Frostman is yet another example of the problems
arising when the legislature, courts, or attorneys fail to use the
methodology suggested by Prof. Campbell, which early on was adopted by
the supreme court.
Mr. Bauman's editorial is accurate but does not consider the
underlying cause of the problem. The defect in Frostman was the
court's conclusion that because Wis. Stat. section 345.05(2) (1989-90)
provided for municipal liability, policy factors applicable to all other
negligence actions were inapplicable to suits against municipalities
"proximately resulting from the negligent operation of a motor vehicle."
My view is that if the Wisconsin legal community were as comfortable
with Prof. Campbell's analysis as it is with many other legal concepts,
Frostman would have been decided as a matter of policy for the
Frostman case only, and not as a matter of statutory
Charles P. Dykman, Monona
Editor's Note: While the author is a Wisconsin Court of Appeals,
District IV, judge, the views expressed in the letter above are his own
and not the court's. This letter has been edited for length.