Cefalu v. Continental Western Ins. Co.

• Decision Date: 06 July 2005
• Docket Number: No. 2004AP2369.,2004AP2369.
• Citation: 2005 WI App 187,285 Wis.2d 766,703 N.W.2d 743
• Parties: Tricia L. CEFALU, Plaintiff, v. CONTINENTAL WESTERN INSURANCE COMPANY and Carl M. Wojnowski, Defendants-Third-Party Plaintiffs-Appellants, v. William F. THEYS, Star Line Trucking Corporation and Continental Casualty Company, Third-Party Defendants-Respondents.
• Court: Wisconsin Court of Appeals

285 Wis.2d 766

2005 WI App 187

703 N.W.2d 743

Tricia L. CEFALU, Plaintiff, v. CONTINENTAL WESTERN INSURANCE COMPANY and Carl M. Wojnowski, Defendants-Third-Party Plaintiffs-Appellants,¹ v. William F. THEYS, Star Line Trucking Corporation and Continental Casualty Company, Third-Party Defendants-Respondents.

No. 2004AP2369.

Court of Appeals of Wisconsin.

Submitted on briefs May 25, 2005.

Decided July 6, 2005.

On behalf of the defendants-third-party plaintiffs-appellants, the cause was submitted on the briefs of Emile H. Banks, Jr. and Vicki L. Arrowood of Emile Banks & Associates, LLC, Milwaukee.

On behalf of the third-party defendants-respondents, the cause was submitted on the brief of Kim M. Peterson of Eiche & Frakes, S.C., Milwaukee, and Geri A. Wilkinson of Law Offices of Mark H. Miller, Brookfield.

Before Anderson, P.J., Brown and Nettesheim, JJ.

¶ 1. ANDERSON, P.J.

The sole issue in this case is whether William F. Theys, who overturned his truck while driving on a highway in the city of Muskego, should be held liable for injuries Tricia L. Cefalu sustained as a result of her subsequent collision with Carl M. Wojnowski at a nearby intersection. Wojnowski and Continental Western Insurance Company submit that the circuit court erred in determining, as a matter of law, that Theys' rollover accident was not a cause-in-fact of Cefalu's injuries and that public policy considerations militate against imposing liability on Theys.

¶ 2. We conclude that Theys' rollover accident was not a substantial factor in bringing about, and therefore not a cause-in-fact of, Cefalu's injuries. We reach this conclusion because there does not exist an unbroken sequence of events connecting the two accidents. We further determine that public policy considerations preclude the imposition of liability on Theys: Cefalu's injuries are simply too remote from Theys' alleged negligence and allowance of recovery in this case would know no just or sensible stopping point. Accordingly, we affirm the circuit court's grant of summary judgment in favor of the third-party defendants.

Background

¶ 3. On July 12, 1999, Theys was operating a truck loaded with limestone near the controlled intersection of Highways 36 and 45 in the City of Muskego. As Theys was headed westbound on Highway 36, he attempted to negotiate a left turn onto southbound Highway 45 but his truck overturned and spilled its load of limestone. The truck and its contents were located south of the intersection with Highway 36.

¶ 4. The police and other emergency personnel arrived at the scene immediately after the truck overturned. The officers took precautions to control the intersection. The officers put up flares, closed the left-turn lane from westbound Highway 36 to southbound Highway 45, closed southbound Highway 45 near the accident scene to traffic, positioned emergency vehicles so as to prevent any additional collision with the overturned truck, placed a uniformed officer to direct traffic at the intersection of Highways 36 and 45, and called for additional assistance. By approximately 4:00 p.m., there were an estimated four uniformed officers and between ten and twenty fire department personnel present at the scene.

¶ 5. Wojnowski, the fire chief for the Tess Corners Volunteer Fire Department, was notified of the rollover accident. He proceeded in a fire truck southbound on Highway 45 to assist in cleaning up the spill at the scene. At around 4:00 p.m., approximately thirty minutes after the rollover accident, Wojnowski approached the intersection of Highways 36 and 45 with the truck's sirens and rotating lights activated. As he reached the intersection, he noticed a uniformed officer directing traffic at the intersection and deactivated his sirens, slowed his vehicle and waited for the officer to wave him into the intersection. The traffic light at that time for southbound Highway 45, the direction Wojnowski was headed, was red. The traffic light for eastbound and westbound Highway 36 was green.

¶ 6. The traffic control officer directed traffic on Highway 36 to stop. After the officer thought traffic had stopped, he motioned Wojnowski to proceed into the intersection. As Wojnowski entered the intersection, Cefalu, who was headed eastbound on Highway 36, entered the intersection as well. The line of vision between the two vehicles was apparently blocked by a garbage truck stopped in the left-hand eastbound lane of Highway 36. Although Cefalu had already traveled through the intersection once and was aware of the accident and the presence of emergency personnel and equipment, she did not know that the vehicles were still at the scene. In any event, as the two proceeded through the intersection, Wojnowski's vehicle struck the driver's side of Cefalu's vehicle.

¶ 7. In October 2001, Cefalu filed a complaint sounding in negligence against Wojnowski and Continental Western—the insurer of Tess Corners Volunteer Fire Department.² Subsequently, Wojnowski and Continental Western (collectively, "Wojnowski") filed a third-party complaint against Theys, Star Line Trucking Corporation (Theys' employer) and Continental Casualty Company (Star Line Trucking's insurer). Wojnowski alleged that Theys' negligence in overturning his vehicle and spilling its load of limestone caused the accident leading to Cefalu's injuries. Thus, Wojnowski sought contribution or indemnification from Theys, Star Line Trucking and Continental Casualty (collectively, "Theys").

¶ 8. Theys filed a motion for summary judgment. He argued that his negligence was not a cause-in-fact of Cefalu's injuries because "the sequence of events following the Theys accident and leading to the Cefalu accident were not unbroken" and therefore his alleged negligence was not "actively operating" at the time of the accident. He further maintained that two public policy factors prevented the imposition of liability on him: (1) Cefalu's injuries were too remote from his alleged negligence and (2) allowance of recovery would "enter a field that has no sensible or just stopping point." See Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 737, 275 N.W.2d 660 (1979). The circuit court agreed with Theys and granted summary judgment in his favor.

Standard of Review

¶ 9. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995). Whether negligence was a cause-in-fact of an injury is a factual question for the jury if reasonable people could differ on the issue, and the question only becomes one of law for judicial decision if reasonable people could not disagree. Morgan, 87 Wis. 2d at 735-36. Whether public policy precludes the imposition of liability is a question of law solely for judicial determination. Fandrey v. American Family Mut. Ins. Co., 2004 WI 62, ¶ 6, 272 Wis. 2d 46, 680 N.W.2d 345. Before determining whether public policy considerations preclude liability, it is usually a better practice to submit the case to the jury. Gritzner v. Michael R., 2000 WI 68, ¶ 26, 235 Wis. 2d 781, 611 N.W.2d 906. However, when the facts are not complex and the relevant public policy questions have been fully presented, this court may determine whether public policy precludes liability before trial. Id.

Discussion

¶ 10. Wojnowski contends the circuit court erred in holding that, as a matter of law, Theys' rollover accident was not a substantial factor in producing, and therefore not a cause-in-fact of, Cefalu's injuries. Wojnowski submits that reasonable people could reach different conclusions as to whether there was an "unbroken sequence of events," see Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220, 227, 270 N.W.2d 205 (1978), between Theys' rollover accident and the collision and therefore the matter should have been submitted to the jury. Wojnowski also claims the circuit court erred in holding that public policy considerations militated against imposing liability on Theys because the injury was too remote from his alleged negligence and allowance of recovery would enter a field that has no sensible or just stopping point.

¶ 11. The test of cause-in-fact is whether the negligence was a "substantial factor" in producing the injury. Fandrey, 272 Wis. 2d 46, ¶ 12 (citation omitted). "The phrase, `substantial factor,' denotes that the conduct has such an effect in producing the injury as to lead a reasonable person to regard it as a cause, using that word in the popular sense. There may be several substantial factors in any given case." Toeller v. Mutual Serv. Cas. Ins. Co., 115 Wis. 2d 631, 637, 340 N.W.2d 923 (Ct. App. 1983) (citation omitted). To prove that a tortfeasor's negligence was a substantial factor in producing a plaintiff's injuries, it must be shown that there was an "unbroken sequence of events" where the negligence of the tortfeasor was actively operating at the time of the accident which produced the plaintiff's injury. Fondell, 85 Wis. 2d at 227.

¶ 12. After the determination of the cause-in-fact of an injury, a court still may deny recovery after addressing public policy considerations. Morden v. Continental AG, 2000 WI 51, ¶ 60, 235 Wis. 2d 325, 611 N.W.2d 659. The public policy considerations that a court applies to decide if it should 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. Mohr v. St. Paul Fire & Marine Ins. Co., 2004 WI App 5, ¶ 46, 269...