Wisconsin's Approach to Proximate Cause
Under Wisconsin
law, the doctrine of proximate cause consists of six public policy
factors. Using these factors, Wisconsin courts attempt to strike a
balance between deterring socially irresponsible conduct and shielding
individuals from unlimited liability for the infinite results of their
actions.
By Kendall Harrison
- A man visiting a building supply store is confronted by security
guards and accused of shoplifting. In an attempt to escape, he runs out
of the store and is pursued by the guards. The man continues to flee,
jumps into a river, and drowns. His estate, in Peters v. Menard Inc.,1 brings a wrongful death lawsuit against the store
and the security guard company.
- A young woman undergoing therapy accuses her parents of sexually
abusing her as a child. In Sawyer v.
Midelfort, 2 the parents sue their
daughter's therapists for implanting and reinforcing false memories of
sexual abuse.
- Wal-Mart employees detain a man on suspicion of shoplifting a
swimsuit. The employees fail to find the swimsuit in the man's
possession. He files a lawsuit, Miller
v. Wal-Mart Stores Inc., 3 claiming
the store was negligent in hiring, training, or supervising its
employees.
Introduction
Should the law allow recovery? The Wisconsin
Supreme Court recently answered that question in each of the above
cases. The court's answers have differed, but its analysis has remained
the same. In determining whether to hold the defendants liable in these
cases and others like them, the court asks whether public policy would
be well served by imposing liability. Six factors play a role in this
analysis:
- whether the injury is too remote from the negligence;
- whether the injury is wholly out of proportion to the culpability of
the negligent tortfeasor;
- whether in retrospect it appears too extraordinary that the
negligence should have brought about the harm;
- whether allowance of recovery would place an unreasonable burden on
the negligent tortfeasor;
- whether allowance of recovery would be too likely to open the way to
fraudulent claims; or
- whether allowance of recovery would enter a field that has no
sensible or just stopping point.4
These factors represent the Wisconsin Supreme Court's modern
jurisprudence of "proximate cause." Many Wisconsin attorneys are
familiar with the court's public policy factors, but few probably know
where they came from and how they have developed into the court's
proximate cause analysis. This article attempts to shed light on the
development of these factors and to briefly analyze the court's use of
them today.
Proximate cause has never been particularly easy to understand, even
for judges with considerable knowledge of tort law. The Wisconsin
Supreme Court admitted openly in 1927 that it found proximate cause
perplexing, referring to "the vexed term 'proximate cause'" and the
"whole troublesome matter."5 Proximate cause
continues to confuse students, practitioners, and scholars alike,
primarily because the doctrine no longer has much to do with proximity
or causation. In Wisconsin, proximate cause is slightly more confusing
because our supreme court has abandoned the term nearly completely,
replacing it with the six public policy factors listed above.
Contrary to its reputation, however, the basic premise of proximate
cause is not difficult to understand: Justice requires that individuals
be shielded from unlimited liability for the infinite results of their
actions.6 When an injury occurs, liability
is not imposed if the person causing the injury could not have
reasonably foreseen that his or her action might cause harm to anyone.
In those situations, the law deems the person causing the injury not to
have breached a duty of reasonable care. Yet what about situations where
some minimal harm is reasonably foreseeable but the resulting injury is
much greater than or wholly different from the foreseeable harm? Should
the responsible party walk away totally free? Proximate cause attempts
to resolve that dilemma.
Origins of Proximate Cause in Wisconsin
Proximate cause first appeared in Wisconsin law in 1870, when the
Wisconsin Supreme Court discussed the doctrine at length in Kellogg
v. Chicago & Northwestern R.R. Co.7
Kellogg involved a fire started by sparks from the defendant's
train that, guided by a strong wind, carried across the plaintiff's
fields, and spread to the plaintiff's hay stacks, sheds, and stable, all
nearly half a mile from the origin of the fire. The jury found the
defendant liable and the defendant appealed, arguing that the
plaintiff's damages were too "remote" from the defendant's negligent act
to allow recovery. Rejecting this argument, the court held that the
plaintiff could recover because the damage to his property was the
"natural and probable consequence" of the negligently started fire.
8 The damage was "natural" because the chain
of causation was unbroken; the fire "[t]hough fed on different
substances, [was] throughout its march of destruction the same means or
instrument of injury first wrongfully set in motion." 9 The damage was "probable" and therefore
foreseeable because the spread of the fire could have been "reasonably
anticipated or expected according to the usual experience of mankind."
10
Over the next 50 years, the "natural and probable consequences"
proximate cause test of Kellogg evolved into a principle with
two distinct parts: cause-in-fact and reasonable foreseeability. For the
injured party to recover, cause-in-fact, or "natural causation,"
required that the chain of events between the negligent act and the
injury remain unbroken.11 Determining
whether an unbroken causal connection existed may have been difficult
and subject to arbitrariness, but at least the theory was clear.
The same could not be said for the reasonable foreseeability aspect
of proximate cause. Originally, the court held that a negligent act
could be the proximate cause of an injury only "when the
[particular] injury is the natural and probable result of [the act],
and, in the light of attending circumstances, it ought to have been
foreseen by a person of ordinary care."12
Before the defendant's act could be considered the proximate cause of
the plaintiff's injury, the defendant had to be able to foresee the
exact injury suffered by the plaintiff. This concept was different from
the reasonable foreseeability necessary to find the defendant negligent
in the first place. Under the negligence inquiry, the defendant has only
to foresee that some harm could befall the plaintiff as a result of the
act before he or she has a duty not to take that act. The defendant does
not need to have been able to foresee the exact injury the plaintiff
suffered. Unfortunately, the court lost track of this distinction and
ended up using the negligence reasonable foreseeability test in the
proximate cause context. 13 As such, the
foreseeability limit did not help to curtail defendant's liability in
any meaningful way. As long as some harm was foreseeable and the injury
followed in an unbroken sequence from defendant's negligence, defendant
would be held liable, even if the ultimate injury was far more severe
than the reasonably foreseeable harm.
This line of reasoning reached its logical end in Koehler v.
Waukesha Milk Co.,14 a 1926 case
involving a woman who died from blood poisoning three weeks after she
cut her finger on the jagged rim of a milk bottle left on her front step
by the milk man. The case came to the supreme court after the jury
already had determined that the milk company was negligent for
delivering the defective bottle. The primary issue before the court was
whether the milk company's negligence was the proximate cause of the
customer's death.
The court was well aware of the basic policy question underlying the
case, whether it was just to hold the defendant liable for the
"unexpected" or "extraordinary" results of an act that ordinarily would
result in only a minor cut. 15 The court
also recognized the downside of denying liability, namely that the
innocent party would be denied any redress for injuries that would not
have occurred without the defendant's negligence.16 The court found that defendant could be held
liable if some harm (not necessarily the actual harm) is foreseeable and
"there is no break of the natural sequence or continuity between the
injury and the claimed result ... ."17
Because no intervening causes broke the chain between the milk company's
negligence and the decedent's death, the court held the milk company
liable.18 Although the court recognized the
possibility that its test imposed responsibility on defendants for
unusual or unexpected injuries, it seemed to believe that infinite
liability could be adequately limited by the intervening cause
doctrine.
It did not take long for the Wisconsin Supreme Court to rethink the
implications of the proximate cause test it had applied in
Koehler. Five years later, in Osborne v. Montgomery,
19 the court questioned the soundness of
the Koehler test without expressly overruling it. The court
made clear that reasonable foreseeability as applied in Koehler
did "not operate to limit liability"20 but
applied only to the question of negligence or the failure to exercise
ordinary care.21 The fact that a reasonable
person could foresee that some harm would result from distributing a
jagged milk bottle was sufficient to find a breach of a duty of care.
But how could liability be limited so that defendants were not left with
liability for the bizarre and deadly consequences of an act whose
foreseeable harm was minimal?
The court recognized that the chain of causation test left something
to be desired but could not articulate anything to replace it. Instead,
it asserted boldly that "[a]ny 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 discretion of the court."22 The court also explained that "an injury may be
so far removed from the field within which the act will probably operate
that the conscience of society would say that under such circumstances
the actor should not be held liable."23
Because causation was not a contested issue in Osborne, the
court left its discussion at that, failing to elaborate on how courts
should know when to invoke their discretion to limit liability.
Little did the court know that these two sentences in
Osborne would have such far-reaching implications for the law
of proximate cause in Wisconsin. For the first time, the court
acknowledged that proximate cause was a question of judicial policy
rather than a uniform principle that could be applied evenly to all
situations.24 Nonetheless, the Wisconsin
Supreme Court cannot take credit for the recognition that proximate
cause was a policy question. Both Leon Green in his groundbreaking 1927
book The Rationale of Proximate Cause25 and Judge Andrews, in his dissenting opinion in
the seminal 1928 case of Palsgraf v. The Long Island R.
Co.,26 had already seen through the
facade of the foreseeability and chain of causation tests of proximate
cause to the underlying policy decisions courts were making in their
proximate cause analyses. Andrews explained proximate cause in the
following manner:
"What we do mean by the word 'proximate' is that, because of
convenience, of public policy, of a rough sense of justice, the law
arbitrarily declines to trace a series of events beyond a certain point.
This is not logic. It is practical politics ... . The words we used [in
previous cases] were simply indicative of our notions of public
policy."27
The American Law Institute integrated this recognition into the
Restatement (Second) of Torts. Section 435(2) of the Restatement
explains that courts should be able to cut off liability for "highly
extraordinary harm."28
Modern Proximate Cause Jurisprudence in Wisconsin
The Wisconsin Supreme Court's modern proximate cause jurisprudence
can be traced to the policy recognitions of Osborne and the Restatement.
In the 1952 case, Pfeifer v. Standard Gateway Theater,29 the court relied on both these sources when it
announced that:
"[I]n cases so extreme that it would shock the conscience of society
to impose liability, the courts may step in and hold as a matter of law
that there is no liability."30
The touchstone of proximate cause thus became "the conscience of
society." If the collective social conscience would be "shocked" by
imposing liability on a defendant, the court would refuse to do it. But
how was it to be determined at what point the public would be so
appalled by the imposition of liability that it would cry "unfair"? The
court in Pfeifer did not answer that question and perhaps for
good reason. It is extremely difficult to formulate a specific,
nonarbitrary explanation of a socially appalling outcome. The
determination is necessarily a case-by-case inquiry.
One thing the court in Pfeifer did make clear, however, was
that the court and not a jury would decide what shocked the social
conscience.31 Although a jury might seem
better able than a court to discern the pulse of social conscience, the
court reserved considerations of public policy to itself. But it did not
wholly remove the jury from participation in questions of causation.
Eliminating some confusion in the law that existed before the
case,32 the court made clear that the jury
would determine questions of negligence and cause-in-fact (by
determining whether the negligence was a substantial factor in producing
the injury) and the court would decide as a matter of law "whether or
not considerations of public policy require that there be no
liability."33
This division of responsibility remains the law today. Negligence and
cause-in-fact are questions of fact for the jury and public policy
concerns are a question of law for the court. Generally, courts allow a
jury to consider the questions of negligence and cause-in-fact before a
court addresses the public policy concerns of legal cause.34 However, when the factual issues are simple and
clear and the only real issue is legal causation, a court may address
the issue on a motion to dismiss,35 on
summary judgment,36 or after trial.37
It did not take the court long to develop a more detailed explanation
for the point at which society's conscience is shocked. Perhaps
believing that its determinations would be better grounded if it
developed additional factors for determining the social conscience
shocking point, the court in the 1957 case, Colla v. Mandella,
resurrected language set forth in Waube v. Warrington, a case
resolved 20 years earlier.38
The court in Waube had considered whether to allow a husband
to proceed on a wrongful death suit where his wife had witnessed their
child being struck and killed by a car and as a result became so ill
that she died herself. Determining that the husband's suit should not be
permitted to proceed because the defendant did not owe a duty of care to
him, the court announced that:
"Such consequences are so unusual and extraordinary, viewed after the
event, that a user of the highway may be said not to subject others to
an unreasonable risk of them by the careless management of his vehicle.
Furthermore, the liability imposed by such a doctrine is wholly out of
proportion to the culpability of the negligent tortfeasor, would put an
unreasonable burden upon users of the highway, open the way to
fraudulent claims, and enter a field that has no sensible or just
stopping point."39
Although in Waube these concerns pertained to the
defendant's duty of care, the court in Colla v. Mandella40 recognized that the same concerns could help a
court to identify the proximate cause point at which liability should
not be imposed. Colla made clear that the court saw proximate
cause limits on liability to be questions of public policy, rather than
of duty or causation, and implemented the Waube factors set
forth above in that approach.41 Some states
continue to use considerations of public policy in deciding whether an
individual owes a duty to another under a specific circumstance.
Wisconsin has abandoned such consideration in its duty inquiry,
preferring to analyze public policy concerns as a matter related to
causation. Under Wisconsin law, everybody has a duty of due care to the
whole world.42
Wisconsin's Proximate Cause Jurisprudence in Recent Years
The public policy factors remain a staple of Wisconsin tort law and
look remarkably familiar to the factors first applied in Colla.
Even where a jury has found negligence and has determined that such
negligence was a cause-in-fact of the plaintiff's injury, the court
still may deny liability under its six public policy
considerations.43
In the last several years, the Wisconsin Supreme Court has
implemented these factors on several occasions, splitting nearly evenly
in its results. The court has found that public policy does not prohibit
the imposition of liability when: a defendant's negligent failure to
inspect and trim trees allows branches to contact an electrical power
feeder, causing a succession of high-voltage transients to be
transmitted into the main electricity distribution box of a bowling
alley, thereby causing the alley to catch on fire; 44 a defendant's vehicle negligently collides with
a child, causing the child's death, and inflicting emotional distress on
the child's mother who views the immediate aftermath of the accident;
45 the parents of a child with an attention
deficit hyperactivity disorder fail to notify school officials that they
have discontinued the child's medication and the nonmedicated child
becomes unruly and hits a teacher who suffers a severe neck injury;
46 a store's employees unlawfully detain a
customer and the customer sues the store for negligent hiring, training,
or supervision; 47 and the parents of a
young woman who has accused them of sexually abusing her as a child sue
the woman's therapists for implanting and reinforcing false memories of
sexual abuse.48
But the court has determined that imposing
liability would contravene public policy when: a women spending an
evening with friends around a campfire fails to extinguish the embers in
the fire pit, thereby allowing the fire pit to continue to smolder and
to burn a young boy who falls into the pit several hours later; 49 an institutionalized individual suffering from
Alzheimer's disease who could not control or appreciate his conduct
knocked a caretaker to the ground, causing her to suffer injuries;
50 a fuel oil company negligently pumped
300 gallons of fuel oil into plaintiffs' basement, allegedly causing
plaintiffs to suffer severe emotional distress; 51 and a man suspected of shoplifting runs away
from security guards, jumps into a river in an attempt to escape, and
drowns.52 The Wisconsin Court of Appeals
has been even more apt than the Wisconsin Supreme Court to find that
public policy bars recovery.53 Despite the
nearly even results in recent years, the supreme court's long-term trend
shows that "cases in which a causally negligent tortfeasor has been
relieved of liability are infrequent and present unusual and extreme
considerations."54
Implications
The Wisconsin Supreme Court's evolution from Kellogg v. Chicago
& Northwestern Ry. Co.55 to
present lends considerable support to Justice Andrews' observation in
Palsgraf56 that proximate cause is
more about public policy than about precise judicial doctrine.
Recognizing that chain of causation and reasonable foreseeability tests
were insufficient indicators of the proper situations in which to impose
liability, the court has opened itself to a broader range of policy
considerations. Undoubtedly, policy considerations were playing a role
in proximate cause determinations before the court actually acknowledged
them57 ; the influence of policy simply
went unstated as courts attempted to articulate results in the fancy
garb of legal jargon. Jettisoning the term "proximate cause" in favor of
"public policy" was an intelligent first step; use of the word "cause"
just confuses the real issues at stake.
Public policy is traditionally considered the province of the
legislature; courts are supposed to resolve disputes between individual
parties, not society at large. The court is cognizant of the problem of
taking on too broad a role in the business of formulating public
policy.58 Yet it is not possible for courts
to achieve true justice in resolving individual disputes without giving
some thought to larger-scale social implications. This is perhaps most
true in the context of tort law. Tort law serves a number of objectives,
only one of which is compensating individual parties that have suffered
harm.59 Other competing objectives come
into stark contrast with compensation, especially in the resolution of
questions of proximate cause. Courts assessing issues of proximate cause
must strike a balance between deterring socially irresponsible conduct
and protecting parties from crushing liability for the far-reaching
consequences of acts of minimal negligence. Certain losses must shift to
the culpable party, but risk also must be allocated in an efficient and
just manner. Wronged plaintiffs must be allowed to recover, but courts
do not want to open themselves to a flood of illegitimate claims.
Because no single answer applies across the board, considerations of
public policy must be assessed in a case-by-case fashion.
The Wisconsin Supreme Court's six-factor test integrates elements of
its historical proximate cause doctrine with more modern policy
concerns. The result is a loose, flexible standard that blends several
different considerations. No single one of the six factors plays a
determinative role in deciding the court's outcome. Instead, the court
appears to pick and choose which of the six factors to discuss. On
occasion, it discusses only several of the factors and makes a decision
without mentioning the other factors or mentions them only in
passing.60 When the court decides not to
impose liability, it announces that the public policy factors all point
to not imposing liability. The same is true of a decision to allow
liability. The court does not weigh the policy factors against one
another. Skeptical observers will note the post hoc flavor of that
realization. Is the court's discussion of the policy factors just a
gloss on a decision reached already or does the court actually employ
the policy factors to reach its decision? In either case, the factors at
least force the court to come up with reasoned explanations for its
decision, a major improvement on the tests of yore.
The court's first public policy factor, "whether the injury is too
remote from the negligence," is a restatement of the old chain of
causation test. In some respects, the inclusion of this factor could be
considered odd. It is not much different than the substantial factor
test used to determine cause-in-fact. There will be few cases in which
it makes sense to say that a defendant's negligence has been a
substantial factor in the plaintiff's injury but is too removed from
that injury to allow recovery.
What this factor does do, however, is to revive the "intervening" or
"superseding" cause doctrine and dress it in new clothes. The doctrine,
under which a defendant could be relieved of its negligence by an
unforeseeable intervening or superseding cause, passed away in Wisconsin
with the adoption of the substantial factor test of
cause-in-fact.61 But it has resurfaced in
the policy concerns. A finding that a defendant's negligence is too
remote from the injury is essentially just a determination that a
superseding cause should relieve the defendant of liability.62
The second factor, "whether the injury is wholly out of proportion to
the culpability of the negligent tortfeasor," helps to determine whether
a given defendant should be forced to saddle the costs of a loss out of
whack with the severity of its negligence. If the court exercises its
public policy discretion and decides no liability is to be imposed
because of the discrepancy between the degree of negligence and the
degree of injury, a plaintiff may be left without a recovery. The
decision to bar recovery on the grounds of public policy is an all or
nothing proposition. Not surprisingly though, the court is hesitant to
leave a plaintiff without any avenue of recovery, unless as in Peters v. Menard Inc., a 1999 case
in which the plaintiff drowned after deliberately jumping into a river,
the plaintiff's own negligence vastly outweighs the defendants'
negligence.63 For example, in the 1996
Kleinke v. Farmers Coop. Supply &
Shipping decision,64 although the
court held that as a matter of public policy the plaintiffs could not
recover damages for emotional distress caused by the defendants'
negligent damage to the plaintiffs' property, it was clear that the
plaintiffs could recover property damages from the defendants. Because
the plaintiffs had at least one remedy, the court could feel freer to
say that public policy was not best served by allowing them to seek a
second, more attenuated remedy.
The third factor, "whether in retrospect it appears too extraordinary
that the negligence should have brought about the harm," is a variant of
the reasonable foreseeability test.65 The
factor recognizes that merely because one is able to foresee some harm
and therefore should not take a given action, there are situations in
which the harm that actually results is so tenuously related to the
foreseeable harm that it is unfair to impose liability. This is the same
consideration to which courts in other jurisdictions are looking when
they determine that the defendant did not owe a duty of care to the
plaintiff. Wisconsin has shied away from this approach to duty since the
1957 case, Colla v. Mandella,66
finding it better to discuss the decision to deny liability in terms of
public policy.67 Because the court has
determined that everyone owes a duty of ordinary care to others, this
third factor is necessary to provide some limit for bizarre consequences
and unforeseeable plaintiffs.
The fourth factor, "whether allowance of recovery would place an
unreasonable burden on the negligent tortfeasor" recognizes that tort
law should not seek to deter all conduct that involves risk, just
conduct that involves too much risk. Many of the cases in which the
public policy factors are necessary involve situations where the actual
harm was not reasonably foreseeable. Thus, at the time of the
defendant's negligent act, he lacked the information required to make an
appropriate estimation of the costs of his carelessness.68 In other words, he could not calculate the risk
rationally. When a defendant cannot foresee the approximate extent of
harm that could occur, it is difficult for the defendant to determine
how careful he or she should be. Although such a person applies care
commensurate with the foreseeable risk, the defendant still may be held
liable. There is little deterrent effect in that, other than reinforcing
the idea that if there is any risk of danger, perhaps one should not
take that chance. But life is full of reasonable risks and we should be
wary of creating a society full of over-cautious individuals.
The fifth and sixth factors, "whether allowance of recovery would be
too likely to open the way to fraudulent claims" and "whether allowance
of recovery would enter a field that has no sensible or just stopping
point" permit the court to take into consideration its views of the
propriety of the type of lawsuit before it. When the court thinks that
the claim is legitimate or one that will not subject it to a flood of
similar claims, it is more apt to allow the imposition of liability. The
three recent cases cited at the outset of this article illustrate this
point well. For example, in Miller v.
Wal-Mart Stores Inc., the court recognized the tort of
negligent hiring, training, or supervising.69 The court seemed to believe that the number of
such claims would be sufficiently limited by requiring plaintiffs to
show not only that the employer's negligence was a cause-in-fact of
their injuries, but that the employee's wrongful conduct was a
cause-in-fact of their injuries as well. Whether the court's prediction
is accurate remains to be seen.
The court was of the same mind in Sawyer v. Midelfort, a case in
which the court recognized that third parties could bring suit for harm
suffered when they were accused of sexual abuse by individuals who had
developed false memories of sexual abuse through negligent
therapy.70 The court found that it was
unlikely that many people would bring claims alleging that they had been
falsely accused of sexual abuse when they had not actually been so
accused.71 Moreover, the court believed
that it was not entering a field with "no sensible or just stopping
point" because the new claim was different from a claim for loss of an
adult child's society and companionship, a claim that the court had
refused to recognize for public policy reasons in an earlier
case.72
In contrast, in Peters v. Menard
Inc., the court denied the plaintiff's wrongful death claim in
part on public policy grounds, explaining that it did "not wish to
reward fleeing suspects who unreasonably place themselves in danger
while attempting to get away from merchants and their security agents by
allowing them to recover from the merchant and security company
afterward."73 The court did not want to
encourage culpable shoplifters to file suit for injuries suffered when
they are apprehended.
Conclusion
Kendall W. Harrison, U.W. 1995, is
a litigation associate practicing with LaFollette, Godfrey & Kahn in
Madison.
The court has come a long way. It has not and will never escape the
difficult task of striking a perfect equilibrium among the competing
interests of tort law, but it has developed the framework necessary to
tackle the problem head on. By confining its policy objectives to
specific, articulated factors, the court has helped to legitimize its
role in the formulation of public policy goals. The Wisconsin Supreme
Court's forthrightness in acknowledging the role public policy plays in
proximate cause/liability limit determinations seeks to guarantee that
justice will be dispensed in the open rather than behind closed doors.
Judicial forthrightness is better than talking about these issues in
veiled terms. Such openness is laudable.
Endnotes
1 Peters v. Menard Inc., 224 Wis. 2d
174, 589 N.W.2d 395 (1999).
2 Sawyer v. Midelfort, 227 Wis. 2d
124, 595 N.W.2d 423 (1999).
3 Miller v. Wal-Mart Stores Inc., 219
Wis. 2d 250, 580 N.W.2d 233 (1998).
4 Id. at 264-65, 580
N.W.2d at 240.
5 Berrafato v. Exner, 194
Wis. 149, 157, 216 N.W. 165, 168 (1927); see also Marble v. City of
Worcester, 4 Gray 395, 397 (Mass. 1855) ("The whole doctrine of
causation, considered in itself metaphysically, is of profound
difficulty, even if it may not be said of mystery."), cited in
Richard V. Campbell, Duty, Fault and Legal Cause, 1938 Wis. L.
Rev. 402, 402 n.1.
6 See W. Wade Boardman
& V.A. Lundgren, Comment, Proximate Cause in Wisconsin, 5
Wis. L. Rev. 142, 158 (1929) ("Proximate cause is a means of connecting
the injury to the negligence, and incidentally limiting one's liability
for the infinite results of his acts."); see also Patrick J.
Kelley, Proximate Cause in Negligence Law: History, Theory, and the
Present Darkness, 69 Wash. U. L.Q. 49, 91 (1991) ("The basic
proximate cause question [is] when is breach of a community standard
that harms plaintiff nevertheless not a personal wrong to the plaintiff
... .").
7 26 Wis. 223 (1870). The Wisconsin
Supreme Court mentioned proximate cause 11 years before Kellogg
in Stucke v. Milwaukee and Mississippi R.R. Co., 9 Wis. 202
(1859), but the court there applied the concept more to negligence (duty
and breach) than to causation. See Boardman & Lundgren,
supra note 6, at 147. See also Maxwell H. Herriott,
Proximate Cause and Negligence in Wisconsin, 4 Wis. L. Rev. 193
(1927).
8 Kellogg at 281.
9 Id. at 273.
10 Id. at 281.
11 See Meyer v. Milwaukee
Elec. Ry. & Light Co., 116 Wis. 336, 339, 93 N.W. 6, 8 (1903)
("It is the natural cause when either it acts directly in producing the
injury, or sets in motion other causes so producing it and forming a
continuous chain in natural sequence down to the injury; thus linking
the negligence with the injury by a chain of natural and consequential
causation, although the former may be neither the immediate nor the
direct cause of the event.").
12 Diesenrieter v.
Kraus-Merkel Malting Co., 97 Wis. 279, 284, 72 N.W. 735, 738 (1897)
(Emphasis added.).
13 See Boardman &
Lundgren, supra note 6, at 157; Meyer, 116 Wis. at 340, 93 N.W.
at 8 ("[I]t suffices to charge a person with liability for a negligent
act if some injury to another ought reasonably to have been
foreseen ... even though the specific injury might not be so
foreseeable." (Emphasis added.)).
14 Koehler, 190 Wis. 52,
208 N.W. 901 (1926).
15 Id. at 57-58, 208
N.W. at 903 ("[This case] presents very sharply and distinctly the
question whether one who fails to exercise ordinary care, as that term
is recognized in the law of negligence, in his acts, so as to avoid that
which would ordinarily, and in the vast majority of cases, result in but
a slight cut or puncture of the flesh by fractured glass, as here, or as
it might well be, from a nail, pin, tack, pocket-knife, splinter, or any
of the almost infinite ways in which such things occur in daily life,
and which cuts or punctures, as is common knowledge, in the vast
majority of instances are disregarded or have but self or home
attention, and which, if followed by a lawsuit, would properly result in
slight or but nominal damages, must nevertheless be held answerable for
very substantial damages when the unexpected, extraordinary, and that
which is out of the usual course of events, follows as a result?").
16 Id. at 59, 208 N.W.
at 904.
17 Id. at 60, 208 N.W.
at 904.
18 Id. at 63, 208 N.W.
at 905.
19 Osborne, 203 Wis.
223, 234 N.W. 372 (1931).
20 Id. at 237, 234 N.W.
at 377.
21 Id. at 242, 234 N.W.
at 379.
22 Id. at 237, 234 N.W.
at 378.
23 Id. at 234, 234 N.W.
at 376.
24 At least one commentator at
the time noticed that the Osborne decision reflected the
court's increasing consciousness of its role in deciding policy issues.
See Campbell, supra note 5, at 406.
25 Leon Green, The Rationale
of Proximate Cause (1927). See Kelley, supra note
6, at 94-96. The court in Osborne cited Green's book, although
it did not discuss it. Osborne, at 233 n.1.
26 Palsgraf, 248 N.Y.
339, 162 N.E. 99 (1928).
27 Id. at 352-53, 162
N.E. at 103. Although Andrews recognized the public policy basis of
proximate cause decisions, he still employed the traditional terminology
of the natural and continuous sequence test in reaching his conclusion
that because there were no intervening causes between the defendant's
employees' knocking of a package of explosives out of a tardy
passenger's hands and the injuries suffered by plaintiff when a scale
fell on her as a result of the ensuing explosion, defendant was liable
for plaintiff's injuries. Id. at 355; 162 N.E. at 107.
University of Wisconsin law professor Richard V. Campbell echoed
Andrews's statement in his 1938 Wisconsin Law Review article on
proximate cause, remarking "[t]he sooner we realize that the issues
involved are above words, phrases, and procedural concepts, the sooner
we can examine what we have been doing and are doing with the critical
attitude of one seeking for the truth." See supra note 5, at
405.
28 Restatement (Second) of
Torts § 435(2) (1965) ("The actor's conduct may be held not to
be a legal cause of harm to another where after the event and looking
back from the harm to the actor's negligent conduct, it appears to the
court highly extraordinary that it should have brought about the
harm.").
29 Pfeifer, 262 Wis.
229, 55 N.W.2d 29 (1952).
30 Id. at 238, 55 N.W.2d
at 34.
31 Id. at 240, 55 N.W.2d
at 35.
32 Prior to Pfeifer, the
court had given conflicting messages about whose job it was to resolve
policy questions. See Campbell, supra note 5, at
406-07. In Osborne, 203 Wis. 223, 234 N.W. 372, the court
seemed to reserve policy questions to the court, but in E.L. Chester
Co. v. Wisconsin Power & Light Co., 211 Wis. 158, 247 N.W. 861
(1933), the court had explained that the policy question was for the
jury.
33 Pfeifer, 262 Wis. at
240, 55 N.W.2d at 35.
34 Kleinke v. Farmers Coop. Supply &
Shipping, 202 Wis. 2d 138, 144, 549 N.W.2d 714, 716 (1996).
35 Id. at 144, 549
N.W.2d at 716; Bowen v. Lumbermen's Mut. Cas. Co., 183 Wis. 2d
627, 654, 517 N.W.2d 432, 443 (1994).
36 Sawyer, 227 Wis. 2d 124, 141, 595
N.W.2d 423, 432 (1999).
37 Coffey v. Milwaukee,
74 Wis. 2d 526, 247 N.W.2d 132 (1976).
38 Waube v. Warrington,
216 Wis. 603, 258 N.W. 497 (1935). The court first revived the
Waube language in Klassa v. Milwaukee Gas Light Co.,
273 Wis. 176, 77 N.W.2d 397 (1956). But like the court in
Waube, the Klassa court applied the Waube
considerations to determine whether the defendant owed the plaintiff a
duty. It was not until the following year when the court cemented the
transformation of the policy factors from duty to proximate cause.
See Colla v. Mandella, 1 Wis. 2d 594, 85 N.W.2d 345 (1957).
39 Waube at 613, 258
N.W. at 501.
40 Colla, 1 Wis. 2d 594,
85 N.W.2d 345 (1957).
41 Klassa, 273 Wis. at
183, 77 N.W.2d at 401; Colla, 1 Wis. 2d at 599, 85 N.W.2d at
348; see also Longberg v. H.L. Green Co., 15 Wis. 2d 505, 516,
113 N.W.2d 129, 134 (1962)("The public-policy determination formula of
Pfeifer, Klassa, and Colla seems to us a more
realistic description of what a court does when it declines to impose
liability in these situations than does the no-duty formula of
Palsgraf and Waube.")
42 State v. Chrysler Outboard Corp., 219
Wis. 2d 130, 177, 580 N.W.2d 203, 222 (1998).
43 Beacon Bowl v. Wis. Elec.
Power Co., 176 Wis. 2d 740, 761, 501 N.W.2d 788, 796 (1993).
44 Id. at 766, 501
N.W.2d at 798.
45 Bowen, 183 Wis. 2d at
662, 517 N.W.2d at 446.
46 Nieuwendorp v. American
Fam. Ins. Co., 191 Wis. 2d 462, 481, 529 N.W.2d 594, 602
(1995).
47 Miller, 219 Wis. 2d at 268, 580 N.W.2d
at 241.
48 Sawyer, 227 Wis. 2d 124, 595 N.W.2d
423.
49 Rockweit v. Senecal, 197 Wis. 2d 409,
429, 541 N.W.2d 742, 751 (1995).
50 Gould v. American Fam. Mut. Ins. Co.,
198 Wis. 2d 450, 543 N.W.2d 282 (1996).
51 Kleinke, 202 Wis. 2d at 146, 549
N.W.2d at 717.
52 Peters, 224 Wis. 2d 174, 589 N.W.2d
395 (1999).
53 See McMahon v. St. Croix Falls School
Dist., 228 Wis. 2d 215, 596 N.W.2d 875 (Ct. App. 1999); Giebel v. Richards, 224 Wis.
2d 468, 591 N.W.2d 901 (Ct. App. 1999); Rosin v. Fort Howard Corp.,
222 Wis. 2d 365, 588 N.W.2d 58 (Ct. App. 1998); Conroy v. Marquette
University, 220 Wis. 2d 81, 582 N.W.2d 126 (Ct. App. 1998),
rev. denied, 221 Wis. 2d 653, 588 N.W.2d 631 (1998); Estate of Becker v. Olson,
218 Wis. 2d 12, 579 N.W.2d 810 (Ct. App. 1998); Vogel v. Liberty Mut. Ins.
Co., 214 Wis. 2d 442, 571 N.W.2d 704 (Ct. App. 1997), rev.
denied, 215 Wis. 2d 425, 576 N.W.2d 281 (1997); Ziulkowski v. Nierengarten,
210 Wis. 2d 98, 565 N.W.2d 164 (Ct. App. 1997), rev. denied,
219 Wis. 2d 922, 584 N.W.2d 122 (1998); Babich v. Waukesha Mem. Hosp.
Inc., 205 Wis. 2d 698, 556 N.W.2d 144 (Ct. App. 1996).
54 See Stewart v. Wulf,
85 Wis. 2d 461, 479, 271 N.W.2d 79, 88 (1978).
55 Kellogg, 26 Wis. 223
(1870).
56 Palsgraf, 248 N.Y.
339, 162 N.E. 99 (1928).
57 Osborne, 203 Wis.
223, 234 N.W. 372 (1931).
58 See Estate of Cavanaugh v. Andrade, 202
Wis. 2d 290, 314-15, 550 N.W.2d 103, 113 (1996); see also Gaertner v. Holcka, 219 Wis. 2d 436,
580 N.W.2d 271 (1998) (finding that because the legislature had intended
to bar claims for contribution involving seat belt negligence, court
should not permit such claims).
59 For a more comprehensive
discussion of the objectives of tort law and their application to
questions of causation, see Symposium, Causation in the Law of
Torts, 63 Chi-Kent L. Rev. 397 (1987); William Landes & Richard
Posner, Causation in Tort Law: An Economic Approach, 12 J.
Legal Stud. 109 (1983); Steven Shavell, An Analysis of Causation and
the Scope of Liability in the Law of Torts, 9 J. Legal Stud. 463
(1980); Guido Calabresi, Some Thoughts on Risk Distribution and the
Law of Torts, 70 Yale L.J. 499 (1961).
60 See Gould, 198 Wis. 2d at 460-63, 543
N.W.2d at 286-88 (applying only fourth factor, whether allowance of
recovery would place an unreasonable burden on the negligent
tortfeasor); Beacon Bowl, 176 Wis. 2d at 761-66, 501 N.W. at
796-98 (failing to discuss sixth factor, whether allowance of recovery
would enter a field that has no sensible or just stopping point).
61 See Ryan v. Cameron,
270 Wis. 325, 331, 71 N.W.2d 408, 411 (1955) (if jury finds that
negligence of first actor was substantial factor in causing accident,
defense of intervening cause is unavailing unless the court determines
as matter of law that policy factors should relieve first actor of
liability).
62 Morgan v. Pennsylvania
Gen. Ins. Co., 87 Wis. 2d 723, 738, 275 N.W.2d 660, 667 (1979);
McMahon, 228 Wis. 2d at 224, 596 N.W.2d at 880.
63 Peters, 224 Wis. 2d at 199, 589
N.W.2d at 407.
64 Kleinke, 202 Wis. 2d at 145, 549
N.W.2d at 715.
65 Id.
66 Colla, 1 Wis. 2d 594,
85 N.W.2d 345.
67 Rockweit, 197 Wis. 2d
at 425,
541 N.W.2d at 749. But the idea is not dead in this state, as evidenced
by the concurring opinion of Justice Steinmetz in Rockweit,
where he remarked that although he agreed with the majority's public
policy rationale, he would have preferred to treat the issue as one
concerning the defendant's duty of care. Id. at 433, 541 N.W.2d at 753
(Steinmetz, J., concurring).
68 See Rardin v. T&D
Mach. Handling Inc., 890 F.2d 24 (7th Cir. 1989) (discussing
economic approach to negligence).
69 Miller, 219 Wis. 2d at 274, 580 N.W.2d
at 243.
70 Sawyer, 227 Wis. 2d at 151, 595
N.W.2d at 436.
71 Id. at 146, 595
N.W.2d at 434.
72 Id.; see also
Wells Estate v. Mt. Sinai Med. Ctr., 183 Wis. 2d 667, 515 N.W.2d
705 (1994).
73 Peters, 224 Wis. 2d at 198, 589
N.W.2d at 406-7.
Wisconsin
Lawyer