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Vol. 73, No. 2, February
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Wisconsin's Approach to
Proximate Cause
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.
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