Alvarado v. Sersch

• Decision Date: 05 June 2003
• Docket Number: No. 01-1715.,01-1715.
• Citation: 2003 WI 55,262 Wis.2d 74,662 N.W.2d 350
• Parties: Dora O. ALVARADO and Lenny Gonzales, Jessica Gonzales, Billy Gonzales, Roberto Gonzales, by their Guardian and Litem, Donald J. Murphy, Plaintiffs-Appellants-Petitioners, PARTNERS MUTUAL INSURANCE, Subrogated Party-Plaintiff, v. Peter SERSCH d/b/a D.P. Painters and Hastings Mutual Insurance, Defendants-Intervenors, OAKBROOK CORPORATION, ABC Unidentified Insurance Company, Meriter Retirement Services, Inc., and OHIC Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

262 Wis.2d 74

2003 WI 55

662 N.W.2d 350

Dora O. ALVARADO and Lenny Gonzales, Jessica Gonzales, Billy Gonzales, Roberto Gonzales, by their Guardian and Litem, Donald J. Murphy, Plaintiffs-Appellants-Petitioners, PARTNERS MUTUAL INSURANCE, Subrogated Party-Plaintiff, v. Peter SERSCH d/b/a D.P. Painters and Hastings Mutual Insurance, Defendants-Intervenors, OAKBROOK CORPORATION, ABC Unidentified Insurance Company, Meriter Retirement Services, Inc., and OHIC Insurance Company, Defendants-Respondents.

No. 01-1715.

Supreme Court of Wisconsin.

Oral argument March 18, 2003.

Decided June 5, 2003.

For the plaintiffs-appellants-petitioners there were briefs by Daniel W. Hildebrand and DeWitt Ross & Stevens S. C., Madison, and Donald J. Murphy and Murphy Vaughn & Pressentin LLC, Monona, and oral argument by Daniel W. Hildebrand.

For the defendants-respondents there was a brief by John A. Nelson, Timothy W. Feeley, and von Briesen & Roper, S.C., Milwaukee, and oral argument by John A. Nelson.

¶ 1. ANN WALSH BRADLEY, J.

The petitioners, Dora Alvarado and her four minor children, seek review of a published court of appeals decision affirming a circuit court grant of summary judgment in favor of the respondents, Oakbrook Corporation, Meriter Retirement Services, Inc., and Meriter's insurer¹ Alvarado asserts that the court of appeals erred in using public policy factors to limit liability before all the facts were considered. Because we conclude that there are genuine issues of material fact, we determine that the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

I

¶ 2. Meriter Retirement Services, Inc. (Meriter) owns student apartments in Madison that are managed by Oakbrook Corporation (Oakbrook). On August 12, 1998, during the busy student turnover period, Oakbrook's property manager walked through a vacated apartment to inspect the premises. In his deposition he testified that "cabinets" were on his checklist, but he did not remember checking them.

¶ 3. On August 13, 1998, a painting crew entered the apartment. One of the painters discovered what he believed to be a "candle" in the kitchen cabinet. Another painter recognized it as a firework device. They moved the item out of the way and continued working. No one in the crew informed Oakbrook or Meriter about the firework.

¶ 4. On August 14, 1998, Dora Alvarado and Ron Boehm, the owner of the janitorial service retained by Oakbrook, entered the apartment to clean it. Alvarado had already completed a ten- to eleven-hour shift that day, but had been called back to work. Boehm noticed what he thought to be a candle on the windowsill. He commented to Alvarado that it was a "strange looking candle." It was described as a wax candle with red, white, and blue colors, about six inches tall, and an inch in diameter.

¶ 5. After Boehm left the apartment, Alvarado began cleaning the interior of the gas stove. She opened the stovetop to expose the burner trays for vacuuming. Alvarado knew it was necessary to preserve the flame of the pilot light, which occasionally extinguished during the cleaning process. Because she had forgotten to bring matches, she decided to use the "candle" to preserve the flame, and lit the device with the pilot flame. The firework exploded as she was setting it down, blowing off most of her right hand.

¶ 6. Alvarado and her children filed a complaint in Dane County circuit court against Meriter, Oakbrook, the painting contractor, and each of their insurers. The plaintiffs sought damages as a result of Alvarado's personal injuries.

¶ 7. The circuit court granted Oakbrook and Meriter's motion for summary judgment. It concluded that Oakbrook and Meriter did not have a duty of care to protect Alvarado from a potential harm they neither knew nor reasonably could have foreseen.

¶ 8. The court of appeals affirmed the circuit court's grant of summary judgment for Oakbrook and Meriter, but employed a different rationale. Rather than focusing on negligence, the court of appeals considered public policy factors that limit a defendant's liability. It concluded that the injury was too remote from the negligence, and in retrospect it appeared too highly extraordinary that the negligence should have resulted in the harm. Under this analysis, the court of appeals determined that public policy barred any imposition of liability, and therefore it affirmed the circuit court's grant of summary judgment.

II

¶ 9. Alvarado seeks a reversal of the court of appeals' decision, and a remand for a jury trial. She argues that it was improper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented to a jury for a determination of negligence. She asserts that the grant of summary judgment was error because there remain genuine issues of material fact.

[1]

¶ 10. Summary judgments are reviewed applying the same methodology a circuit court uses under Wis. Stat. § 802.08(2). Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no genuine issues of material fact then the moving party is entitled to a summary judgment as a matter of law. Id.; Wis. Stat. § 802.08(2) (2001-02).

[2]

¶ 11. Whether it was proper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented in a negligence determination is a question of law subject to independent appellate review. Gritzner v. Michael R., 2000 WI 68, ¶ 27, 235 Wis. 2d 781, 611 N.W.2d 906.

¶ 12. In addressing the court of appeals' reliance on public policy to affirm the circuit court's grant of summary judgment, we first briefly summarize the laws of negligence and liability that are relevant to this case. We then apply the law and conclude that the court of appeals erred when it affirmed the grant of summary judgment, limiting liability based on public policy factors prior to trial.

III

¶ 13. Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad. Rockweit v. Senecal, 197 Wis. 2d 409, 419-20, 541 N.W.2d 742 (1995). In that dissent, Judge Andrews explained that "[e]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting). [3-5]

¶ 14. Every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Gritzner, 235 Wis. 2d 781, ¶ ¶ 20 & 22. In Wisconsin a duty to use ordinary care is established whenever it is foreseeable that a person's act or failure to act might cause harm to some other person. Id., ¶ 20. Under the general framework governing the duty of care, a "`person is not using ordinary care and is negligent, if the person, without intending to do harm does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property'" Id., ¶ 22 (quoting Wis JI—Civil 1005).

[6, 7]

¶ 15. The question of duty is nothing more than an "ingredient in the determination of negligence." A.E. Investment Corp. v. Link Builders, 62 Wis. 2d 479, 484, 214 N.W.2d 764 (1974). Once it has been determined that a negligent act caused the harm, "the question of duty is irrelevant and a finding of nonliability can be made only in terms of public policy." Id. at 485.

[8]

¶ 16. The "duty" ingredient of negligence should not be confused with public policy limitations on liability.² "[T]he doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability." Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 644, 517 N.W.2d 432 (1994). "In Wisconsin, one always owes a duty of care to the world at large, which is why `[t]he consistent analyses of this court reveal that the question of duty is not an element of the court's policy determination." Rockweit,197 Wis. 2d at 433 (Abrahamson, J. concurring) (quoting A.E. Investment, 62 Wis. 2d at 484).

[9-11]

¶ 17. Thus, negligence and liability are distinct concepts. A.E. Investment, 62 Wis. 2d at 484-85. After negligence has been found, a court may nevertheless limit liability for public policy reasons. Gritzner, 235 Wis. 2d 781, ¶ 24; Rockweit,197 Wis. 2d at 421; A.E. Investment, 62 Wis. 2d at 484. The public policy considerations that may preclude liability are:

(1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; [or] (6) allowing recovery would enter a field that has no sensible or just stopping point.

Gritzner, 235 Wis. 2d 781, ¶ 27.

[12]

¶ 18. In most cases, the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability. Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. Gritzner, 235 Wis. 2d 781, ¶ 26; Sawyer v. Midelfort, 227 Wis. 2d 124, 141, 595 N.W.2d 423 (1999); Bowen, 183 Wis. 2d at 655; Schuster v. Altenberg, 144 Wis. 2d 223, 241, 424 N.W.2d 159 (1988); Coffey v. City of Milwaukee, 74 Wis. 2d 526, 542, 247 N.W.2d 132 (1976).

[13]

¶ 19. A jury's determination of negligence includes an examination of whether the defendant's exercise of care foreseeably created an unreasonable risk of harm...