Vol. 75, No. 11, November 2002

Proximate Cause and Municipal Liability
Broken Windshields and Busted Mailboxes: Municipal Liability for Motor Vehicle Negligence

by Douglas Bauman

Wisconsin's law of municipal liability for motor vehicle negligence shares some common ground with broken windshields and busted mailboxes. Most obviously, this law comes into play when a municipal vehicle damages a windshield or mailbox. The owner of the damaged mailbox or cracked windshield may file a claim against the municipality,¹ as provided by Wis. Stat. section 345.05. The statute, of course, is not limited to such minor harm; it applies to any injury caused by negligent operation of a municipal motor vehicle. However, discussion of broken windshields and busted mailboxes in conjunction with this area of the law is particularly appropriate for another reason: all three need to be fixed.

The problem with the law is found in the leading case interpreting section 345.05, Frostman v. State Farm Mutual Automobile Insurance Co.² In that case, the Wisconsin Court of Appeals erroneously decided that the proximate cause limitation on liability does not apply to claims under section 345.05. The problem is that the court's reasoning is flawed and the language of the statute militates against such a holding. As a result, municipalities must defend against claims that otherwise would be dismissed as lacking proximate cause.

Proximate Cause in General

The proximate cause analysis permits courts to cut off liability on the basis of public policy, even when negligence occurs.³ The requirement that proximate cause be satisfied before liability may be imposed stems from the recognition that strict application of the elements of negligence worked an unfair result in certain cases. To remedy that problem, courts ruled that "in 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."⁴ Courts will hold that a negligent tortfeasor is not liable as a matter of law if: 1) the plaintiff's injury is too remote from the tortfeasor's negligence; 2) the plaintiff's injury is wholly out of proportion to the tortfeasor's culpability; 3) in retrospect it appears too highly extraordinary that the tortfeasor's negligence would result in the plaintiff's injury; 4) allowing the plaintiff to recover would impose too unreasonable a burden on the tortfeasor; 5) allowing the plaintiff to recover would be too likely to open the way for fraudulent claims; or 6) allowing the plaintiff to recover would enter a field with no sensible or just stopping point.⁵ A tortfeasor's conduct is the proximate cause (or legal cause) of a plaintiff's injury only if none of the public policy considerations listed above would preclude liability.

Claims against municipalities remain subject to this proximate cause analysis, as do claims against private individuals or entities. For example, courts have refused to find liability for claims against municipalities that involved mowing roadside vegetation,⁶ snow mounds created by plowing,⁷ and the death of a juvenile who a county employee chose not to apprehend despite the fact that a capias had been issued.⁸ The mere fact that the claim is against a municipality rather than a private individual or entity does not render the proximate cause analysis inapplicable.

Section 345.05 and Frostman

Wis. Stat. section 345.05 modifies the general law of municipal liability by imposing special rules on claims against municipalities involving negligent use of motor vehicles. The most significant modification is found in subsection (2) of section 345.05, which reads in relevant part:

"A person suffering any damage proximately resulting from the negligent operation of a motor vehicle owned and operated by a municipality, which damage was occasioned by the operation of the motor vehicle in the course of its business, may file a claim for damages against the municipality concerned and the governing body thereof may allow, compromise, settle and pay the claim."

In Frostman v. State Farm Mutual Automobile Insurance Co.,⁹ the court of appeals applied this statute to a collision between two private automobiles that occurred after one driver's visibility was obscured by blowing snow produced by the plowing operation of a municipal snowplow. The court ruled that, because section 345.05(2) specifically states that a claim may be filed, the discretionary acts immunity provided by section 893.80(4) did not apply.¹⁰ In addition, the Frostman court relied on section 345.05(2) in declaring that proximate cause also did not apply.¹¹

In reaching the conclusion that proximate cause did not apply, the Frostman court applied deeply flawed logic. The court spoke of the proximate cause analysis in terms of immunity and cited case law concerning municipal immunity.¹² However, municipal immunity and proximate cause are based on different policy considerations. The policy considerations underlying municipal immunity are "protection of the public purse against legal action and ... the restraint of public officials through political rather than judicial means" - considerations unique to government.¹³ By contrast, proximate cause is not limited to government but is concerned with cutting off liability in any case in which imposing liability would be unfair. Nevertheless, the Frostman court rejected the municipality's proximate cause argument by pointing to the same statutory language upon which it based its decision regarding discretionary acts immunity, stating, "Given the express mandate by the legislature, we decline to hold the county immune from liability."¹⁴ This treatment of two distinct concepts as interchangeable is the logical defect in the Frostman court's proximate cause discussion.

The conclusion that the court's proximate cause discussion is defective is confirmed by the language of section 345.05(2) itself. While the court ostensibly relied on this statutory language in rejecting the municipality's proximate cause argument, the statute explicitly refers to proximate cause. The statute limits the potential plaintiff class to persons "suffering any damage proximately resulting from the negligent operation" of a municipal motor vehicle.¹⁵ If the word "proximately" in this statute is to have any meaning, it must refer to proximate cause. Otherwise, the word is superfluous, and that is a result courts must strive to avoid.¹⁶ Thus, section 345.05(2) must be read to specifically incorporate the proximate cause public policy analysis. However, the Frostman court attached no import to the statutory phrase "proximately resulting," and hence did not address its meaning. Nor have subsequent cases given any further guidance; those cases are unpublished and contain little more than a cursory citation to the Frostman opinion.¹⁷

Conclusion

Despite its flaws, Frostman remains the leading case on the interaction of the proximate cause doctrine and section 345.05 because no later case has revisited the issue. That should change. Without the protection afforded by the proximate cause doctrine, municipalities can be forced into the position of essentially insuring the driving public. After all, the fact that some damage occurred frequently makes for a compelling argument that negligence existed, even though the mere fact of harm really is not probative in that regard.¹⁸ The language of section 345.05(2) should be given its full effect, thereby restoring proximate cause as a defense available to municipalities.

Endnotes

¹ See Wulf v. City of Merrill, No. 99-2194 (Wis. Ct. App. Dec. 28, 1999) (mailbox); Benjaminsen v. Vernon County, No. 81-055 (Wis. Ct. App. Aug. 8, 1981) (windshield).

² 171 Wis. 2d 138, 491 N.W.2d 100 (Ct. App. 1992).

³ Sanem v. Home Ins. Co., 119 Wis. 2d 530, 538, 350 N.W.2d 89, 92-93 (1984); Morden v. Continental AG, 2000 WI 51, ¶60, 235 Wis. 2d 325, 361 N.W.2d 659.

⁴ Pfeifer v. Standard Gateway Theater, 262 Wis. 229, 238, 55 N.W.2d 29 (1952).

⁵ Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 737, 275 N.W.2d 660, 667 (1979); See also Alwin v. State Farm Fire & Cas. Co., 2000 WI App 92, ¶12, 234 Wis. 2d 441, 610 N.W.2d 218.

⁶ Walker v. Bignell, 100 Wis. 2d 256, 266, 301 N.W.2d 447, 452 (1981) ("To require these defendants to do battle with roadside vegetation under penalty of liability for common law negligence would be to place upon them a burden they should not be made to bear.").

⁷ Sanem, 119 Wis. 2d at 540 (holding that subjecting a county to "liability for the obstruction produced by a snow mound on a median adjacent to an intersection would place an 'unreasonable and unmanageable' burden upon the county.").

⁸ Tobias v. County of Racine, 179 Wis. 2d 155, 163-64, 507 N.W.2d 340, 343 (Ct. App. 1993) ("The likelihood of being killed in a random shooting is so remote that we will not impose liability upon the county for failure to anticipate it.").

⁹ 171 Wis. 2d 138, 491 N.W.2d 100 (Ct. App. 1992).

¹⁰ Id. at 144, 491 N.W.2d at 102-03.

¹¹ Id. at 143, 491 N.W.2d at 102.

¹² Id. at 142-43, 491 N.W.2d at 101-02.

¹³ Kierstyn v. Racine Unified School Dist., 228 Wis. 2d 81, 89-90, 596 N.W.2d 417, 421-22 (1999).

¹⁴ Frostman, 171 Wis. 2d at 143, 491 N.W.2d at 102.

¹⁵ Wis. Stat. § 345.05(2) (emphasis added).

¹⁶ Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100, 103 (1997).

¹⁷ See, e.g., Wulf v. City of Merrill, No. 99-2194, ¶10 (Wis. Ct. App. Dec. 28, 1999) ("The city also argues that public policy dictates it should be immune from liability .... However, in Frostman [citation omitted] this court rejected a similar argument[.]"); see also McKee v. Price County, No. 97-1166 (Wis. Ct. App. Nov. 18, 1997).

¹⁸ M illonig v. Bakken, 112 Wis. 2d 445, 457, 334 N.W.2d 80 (1983).

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