Gould v. American Family Mut. Ins. Co.

• Decision Date: 30 January 1996
• Docket Number: No. 94-0074,94-0074
• Parties: Sheri GOULD, Scott Gould and St. Croix County, Plaintiffs-Respondents-Petitioners, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellant-Cross Petitioner.
• Court: Wisconsin Supreme Court

Page 282

543 N.W.2d 282

198 Wis.2d 450

Sheri GOULD, Scott Gould and St. Croix County Plaintiffs-Respondents-Petitioners, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY Defendant-Appellant-Cross Petitioner.

No. 94-0074.

Supreme Court of Wisconsin.

Argued Oct. 5, 1995.

Decided Jan. 30, 1996.

For the plaintiffs-respondents-petitioners there were briefs by Michael J. Neitzke, Don Paul Novitzke and Novitzke, Gust & Sempf, Amery and oral argument by Michael J. Neitzke.

For the defendant-appellant-cross petitioner there was a brief by Nancy J. Sixel and Tinglum & Sixel, S.C., River Falls and oral argument by Nancy J. Sixel.

Amicus curiae brief was filed by Betsy J. Abramson and William P. Donaldson, Madison for the Elder Law Center of the Coalition of Wisconsin Aging Groups and the Board on Aging and Long Term Care of the State of Wisconsin.

BRADLEY, Justice.

Both the plaintiffs, Sheri and Scott Gould, and the defendant, American Family Mutual Insurance Company, seek review of a court of appeals' decision which reversed and remanded a judgment of the Circuit Court of St. Croix County, Eric J. Lundell, Judge. The judgment imposed liability against American Family for personal injuries caused by its insured, Roland Monicken, who was institutionalized suffering from Alzheimer's disease. The Goulds assert that the court of appeals erred by abandoning the objective reasonable person standard and adopting a subjective mental incapacity defense in negligence cases. American Family challenges the need for a remand.

While we affirm the court of appeals' reversal of the judgment, we do so on other grounds. We hold that an individual institutionalized, as here, with a mental disability, and who does not have the capacity to control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation. Because the Goulds, in essence, admit that it would be impossible to rebut the evidence of Monicken's incapacity, we reverse the part of the court of appeals' decision remanding the case to the trial court for a determination of Monicken's capacity.

Monicken was diagnosed with Alzheimer's disease after displaying bizarre and irrational behavior. As a result of his deteriorating condition, his family was later forced to admit him to the St. Croix Health Care Center. Sheri Gould was the head nurse of the center's dementia unit and took care of him on several occasions.

Monicken's records from St. Croix indicate that he was often disoriented, resistant to care, and occasionally combative. When not physically restrained, he often went into other patients' rooms and sometimes resisted being removed by staff. On one such occasion, Gould attempted to redirect Monicken to his own room by touching him on the elbow. She sustained personal injuries when Monicken responded by knocking her to the floor. ¹

Gould and her husband brought suit against Monicken and his insurer, American Family. American Family admitted coverage and filed a motion for summary judgment, arguing that Monicken was incapable of negligence as a matter of law due to his lack of mental capacity. An affidavit of Monicken's treating psychiatrist filed in support of the motion stated that Monicken was unable to appreciate the consequences of his acts or to control his behavior. The trial court denied American Family's summary judgment motion and the liability portion of the bifurcated trial was tried to a jury.

After presenting its case, American Family proposed giving instructions and a special verdict that directed the jury to decide, as a threshold question of law, whether Monicken had the mental capacity to understand and appreciate the duty to act with reasonable care at the time of the incident based on his Alzheimer's disease. The trial court denied this request. Pursuant to Wis JI--Civil 1021, the court instructed the jury to disregard any evidence related to Monicken's mental condition and to determine his negligence under the objective reasonable person standard. ² The jury found Monicken totally negligent and a judgment of liability was entered against American Family. ³

The court of appeals granted American Family's interlocutory appeal and reversed the judgment, holding that "a person may not be held civilly liable where a mental condition deprives that person of the ability to control his or her conduct." Gould v. American Family Mut. Ins. Co., 187 Wis.2d 671, 673, 523 N.W.2d 295 (Ct.App.1994). The court remanded the case "for a determination of whether there is a disputed issue of material fact as to whether Monicken's mental condition prevented him from controlling or appreciating the consequences of his conduct." Id. at 680, 523 N.W.2d 295.

Both the Goulds and American Family petitioned this court for review. The Goulds argue that the court of appeals abandoned clear, long-standing precedent in determining that mental disability may constitute a defense to negligence. American Family agrees with the court of appeals' holding, but petitioned for cross review to reverse the court's remand mandate. American Family asserts that a remand is unnecessary because Monicken's mental incapacity was virtually conceded at trial.

It is a widely accepted rule in most American jurisdictions that mentally disabled adults are held responsible for the torts they commit regardless of their capacity to comprehend their actions; they are held to an objective reasonable person standard. See generally, Restatement (Second) of Torts § 283B (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 135 (1984). Legal scholars trace the origins of this rule to an English trespass case decided in 1616, at a time when strict liability controlled. Id. at 1072, citing Weaver v. Ward, 80 Eng.Rep. 284 (K.B. 1616).

When fault-based liability replaced strict liability, American courts in common law jurisdictions identified the matter as a question of public policy and maintained the rule imposing liability on the mentally disabled. Although early case law suggested that Wisconsin followed this trend, ⁴ this court specifically adopted the common law rule and the public policy justifications behind it in German Mut. Fire Ins. Soc'y v. Meyer, 218 Wis. 381, 385, 261 N.W. 211 (1935).

In Meyer, the defendant was criminally charged with arson to a barn but was committed to a mental hospital after he was found to be insane. In the civil claim filed by the insurer who covered the loss, the defendant pled his insanity as a defense. Meyer, 218 Wis. at 382-85, 261 N.W. 211. The court primarily relied on cases from other jurisdictions to conclude that insanity was not a defense for tort liability. Id. at 385-90, 261 N.W. 211.

In doing so the court quoted with approval the following statement of the general rule and public policy rationale behind it:

It is the well settled rule that a person non compos mentis is liable in damages to one injured by reason of a tort committed by him unless evil intent or express malice constitutes an essential element in the plaintiff's recovery. This rule is usually considered to be based on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it, and it has also been held that public policy requires the enforcement of the liability in order that those interested in the estate of the insane person, as relatives or otherwise, may be under inducement to restrain him and that tort-feasors may not simulate or pretend insanity to defend their wrongful acts causing damage to others....

Id. at 385, 261 N.W. 211 (quoted source omitted). Meyer forms the basis of the present day jury instruction concerning the primary negligence of the mentally ill, Wis JI--Civil 1021.

This court did not have occasion to address the issue again until Breunig v. American Family Ins. Co., 45 Wis.2d 536, 173 N.W.2d 619 (1970). In Breunig, Erma Veith was overcome with a mental delusion while driving and crossed the center line of a roadway, striking the plaintiff's vehicle. The plaintiff sued Veith's automobile liability insurer, and a jury returned a verdict finding her causally negligent on the theory that she had knowledge or forewarning of her mental delusions. Id. at 538, 173 N.W.2d 619.

On appeal, the insurer argued that Veith could not be negligent as a matter of law because she was unable to drive with a conscious mind based on the sudden mental delusion. This court created a limited exception to the common law rule, holding that insanity could be a defense in the rare case "where the [person] is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances." Id. at 543, 173 N.W.2d 619. However, because this court concluded that there was sufficient evidence for the jury to find that Veith had forewarning of the mental delusions, she was not entitled to use her condition as a defense. Id. at 545, 173 N.W.2d 619.

The court of appeals in the present case relied on expansive dicta in Breunig to hold that Breunig overruled Meyer. ⁵ It interpreted Breunig as a turning point in the law. See Gould, 187 Wis.2d at 677-78, 523 N.W.2d 295. We disagree. In contrast to the broad dicta found in Breunig, the actual holding was very limited:

All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity.

Breunig, 45 Wis.2d at 544, 173 N.W.2d 619. Breunig was not a turning point in the development of the common law, but rather it was a limited exception to the Meyer rule based on sudden mental disability.

The court of appeals erroneously perceived the underlying premise of Breunig to be that a person should not be held negligent where a mental disability...