Vol. 76, No. 2, February 2003

Letters

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 part:

"(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 exists.

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 "proximate cause."

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 "legal cause."

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 difference.

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 interpretation.

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.

Wisconsin Lawyer