Olson v. Ratzel, 77-637
| Decision Date | 08 March 1979 |
| Docket Number | No. 77-637,77-637 |
| Citation | 278 N.W.2d 238,89 Wis.2d 227 |
| Parties | , 4 A.L.R.4th 313 Gary OLSON, Plaintiff-Respondent, v. Connie RATZEL, Defendant-Respondent. NORTHWEST OUTLET, INC., a domestic corporation, and St. Paul Fire and Marine Insurance Company, a foreign corporation, and Larry W. Krieps, Defendants- Appellants and Third-Party Plaintiffs, Josine M. CHRISTENSON, Third-Party Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Marc A. Ashley (argued), Superior, for defendants-appellants; Davis, Witkin, Weiby & Maki, S. C., Superior, on the brief.
Toby E. Marcovich (argued), of Marcovich, Cochrane & Milliken, S. C., Superior, for plaintiff-respondent.
Before DEAN, P. J., DONLIN, J., and L. J. CHARLES, Reserve Judge.
Gary Olson commenced this action to recover damages incurred when Connie Ratzel shot him with a pistol. The pistol was purportedly "negligently and intentionally" sold to Ratzel, a minor, in violation of Wisconsin and federal statutes. 1 The defendant Larry Krieps, an employee of defendant Northwest Outlet, Inc., allegedly made the sale to Ratzel. Defendant St. Paul Fire and Marine Insurance Co. is the insurer of Northwest and its employees. The complaint further alleged that Olson's injuries were "proximately caused" by Krieps' negligence. In their answer, the defendants-appellants, Krieps, Northwest, and St. Paul (defendants) denied the material allegations of the complaint. The defendants moved for summary judgment on the grounds that violation of the Wisconsin and federal statutes was not negligence Per se, that Ratzel's actions were a superseding intervening cause of Olson's injuries, and that holding the gun seller liable in this case would contravene public policy.
In its memorandum opinion denying the motion, the court referred to both statutes and apparently ruled that violation of sec. 941.22, Stats., established negligence Per se. The court also determined Ratzel's acts were an intervening but not an unforeseeable superseding cause of Olson's injuries, that its conscience would not be shocked if the jury returned a verdict imposing liability on the gun sellers, and that public policy considerations did not preclude liability on the sellers.
Although the motion was for a summary judgment, none of the parties submitted affidavits so only the pleadings were before the court. The Court assumed the truth of the allegations of the complaint for purposes of ruling on the motion. Thus it was treated as a motion to dismiss for failure to state a cause of action or for judgment on the pleadings. 2 Since the motion has been treated by all concerned solely as one testing the legal sufficiency of the complaint, we will consider it as such. 3
The following issues of law are determinative of this appeal:
1. Did the trial court err in ruling that a violation of sec. 941.22, Stats., establishes negligence Per se ?
2. Should this court hold that a violation of 18 U.S.C.A. § 922 establishes negligence Per se ?
3. Does the complaint state a cause of action in common law negligence?
4. Did the trial court err in ruling on this record that public policy considerations do not preclude liability for the defendants and that Ratzel's shooting was not a superseding cause of the plaintiff's injuries?
The plaintiff cites several cases decided in Wisconsin and elsewhere to support his argument that violation of sec. 941.22, Stats., or 18 U.S.C.A. § 922 is negligence Per se. Section 941.22 provides criminal penalties for intentional 4 transfers 5 of pistols to minors. 6 A transferor is subject to strict liability 7 with respect to knowledge of the minor's age. The federal statute provides for criminal penalties 8 for sale or delivery of any firearm "other than a shotgun or rifle" to "any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age." 9 In contrast to sec. 941.22, the federal statute embodies a standard of actual knowledge or negligence with respect to knowledge of age.
Neither the federal nor the Wisconsin statutes expressly create a civil cause of action for statutory violations. The question is thus whether the duty of the defendants should be defined in terms of the criminal standard set by either statute or in terms of the duty of ordinary care applicable generally in negligence cases.
Violations of safety statutes in Wisconsin are ordinarily 10 held to be negligence Per se and this principle frequently 11 has been applied in Wisconsin cases. The general rule in Wisconsin is that violation of a criminal statute is negligence Per se. 12 Although some cases appear to mechanically apply these general rules, the more recent cases reflect the more qualified approach of the Restatement (Second) of Torts. 13 Whether a statute has as its purpose the protection of public safety is a "shorthand method of expressing the composite of the (Restatement) principles," but a more complete summary of the current Wisconsin approach is "where a statute is designed to protect a class of persons from a particular type of harm, a violation of the statute which results in that type of harm to someone in the protected class constitutes negligence Per se." 14
However, the Wisconsin Supreme Court has also frequently held "that statutes are not to be extended so as to impose any duty beyond that imposed by the common law unless such statute clearly and beyond any reasonable doubt expresses such a purpose by language that is clear, unambiguous and peremptory." 15 "In . . . a situation, where the legislature enacts a criminal statute and is silent about the civil liability, if any, which attaches to its violation, the courts are free to determine under common-law principles whether the violator is civilly liable for damages to one injured by the violation." 16
Considerations of public policy have also served to restrict the applicability of the statutory standards of criminal conduct to the duty of a defendant in negligence actions. 17 Such considerations appear to be closely related to "common-law principles" and the certainty with which the court can ascertain a legislative purpose in a statute to create a higher standard of care than that imposed by the common law.
Where a defendant's act amounts to a violation of a standard of care fixed by statute or previous court decision and the violation is held to be negligence Per se, no inquiry is permitted as to reasonable anticipation or foreseeability of harm. In such cases, the jury will not be permitted to find the harm resulting from the act was unforeseeable and the defendant was therefore not negligent. 18 If, under the particular circumstances, the interests of the class to which the plaintiff belongs were intended to be protected by the statute, then the negligence Per se rule applies. 19 If not, where reasonable persons could differ as to the foreseeability that harm would result, the negligence question is for the jury to decide under the general principles of the law of negligence. 20 Restrictions on judicial transplants from the criminal to the civil field run parallel to the foreseeability inquiry in common law negligence analyses. Juries in applying the reasonable person standard in effect determine the limits of reasonableness applicable in a given situation. If the legislature or the court has clearly focused on the particular circumstances and determined the limits of reasonableness therein, then a jury will not be permitted to differ with such a determination.
The Restatement principles restrict the applicability of criminal standards of conduct to civil liability to the particular interest of the protected class as against a particular hazard and kind of harm. Where a statute's purpose is to secure a right to individuals only as members of the public, the Restatement principles do not require adoption of the statutory duty in negligence actions. 21
The plaintiff relies heavily on a case 22 in which the court held the seller of a toy pistol absolutely liable for the wrongful death of a child. The sale was in violation of the predecessor to sec. 167.10(6), Stats. 23 The case, decided on demurrer, held the child's parents had a cause of action, the seller's defenses of contributory negligence and supervening cause were without merit, and discussed proximate cause only in terms of the allegations of the complaint. This case antedates the comparative negligence statute, 24 removal of foreseeability as an element of causation in negligence cases, 25 and the current Wisconsin negligence Per se formulations. Moreover, the case is distinguishable in that it involves an absolute prohibition. In this respect the toy gun case is analogous to cases in which strict liability for the sale of adulterated animal food was held to result from the violation of a statute prohibiting such sales. 26 The Wisconsin Legislature and the Congress have chosen to regulate and not ban entirely the sale of handguns.
The plaintiff also cites numerous cases from other jurisdictions holding "one who sells firearms . . . to a child in violation of a statute is liable for an injury which is the natural and probable consequence of such violation, and which should reasonably have been anticipated by the offender." 27 The cases cited involve different statutes, and the negligence, cause-in-fact, "proximate" cause, and contributory negligence doctrines used are not necessarily those applicable in Wisconsin. 28 Factual questions of foreseeability are part of the negligence and not the causation inquiry in Wisconsin tort law. 29
Negligence Per Se Under Sec. 941.22, Stats.
Section 941.22, Stats., applies to a wide range of "intentional" transfers of pistols to minors, I. e., sale, gift, or loan. These transfers include transactions for profit as well as gratuitous transfers. The single exception allowed by the statute...
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