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February 01, 2000

Wisconsin Lawyer February 2000: Wisconsin's Approach to Proximate Cause 2

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.