Vol. 73, No. 2, February 2000

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:

1. whether the injury is too remote from the negligence;

2. whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor;

3. whether in retrospect it appears too extraordinary that the negligence should have brought about the harm;

4. whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor;

5. whether allowance of recovery would be too likely to open the way to fraudulent claims; or

6. 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

Next Page