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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:
- 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
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