Tesar v. Anderson, 2009AP1993.

• Decision Date: 29 July 2010
• Docket Number: No. 2009AP1993.,2009AP1993.
• Citation: 2010 WI App 116,789 N.W.2d 351
• Parties: Shannon E. TESAR, Plaintiff-Appellant, v. Brett R. ANDERSON, Randal L. Anderson and American Family Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

789 N.W.2d 351
2010 WI App 116

Shannon E. TESAR, Plaintiff-Appellant,
v.
Brett R. ANDERSON, Randal L. Anderson and American Family Mutual Insurance Company, Defendants-Respondents. ^†

No. 2009AP1993.

Court of Appeals of Wisconsin.

Submitted on Briefs March 8, 2010.
Opinion Filed July 29, 2010.

COPYRIGHT MATERIAL OMITTED.

789 N.W.2d 353

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Tracy N. Tool of Bye, Goff & Rohde, Ltd., River Falls.

On behalf of the defendants-respondents, the cause was submitted on the brief of David A. Ray of First Law Group S.C., Stevens Point.

On behalf of the defendant-respondent, American Family Mutual Insurance Company, the cause was submitted on the brief of Michael J. Roman of Zalewski, Klinner & Kramer, LLP, Wausau.

Before DYKMAN, P.J., LUNDSTEN and HIGGINBOTHAM, JJ.

DYKMAN, P.J.

¶ 1 Shannon E. Tesar appeals from a summary judgment dismissing American Family Mutual Insurance Company from this negligence action arising from an automobile accident. ¹ We conclude that the trial court erred by granting summary judgment to American Family. We therefore reverse and remand for further proceedings consistent with this opinion.

¶ 2 Apart from a tragic result, the facts here are similar to those of many automobile

789 N.W.2d 354

accidents. Tesar's complaint alleged that there was a two-car automobile accident on February 13, 2003, and that both drivers,

Alicia Vander Meulen and Brett Anderson, were negligent in causing the accident. Tesar alleged that Vander Meulen was pregnant at the time of the accident and that he was the father of her unborn child. As a result of the accident, the unborn child was stillborn. Pursuant to Wisconsin's direct action statute, Wis. Stat. § 632.24 (2007-08), ² Tesar sued only Anderson and American Family, in its dual capacity as insurer of the automobiles driven by Anderson and Vander Meulen. ³ At least for the purpose of summary judgment, the parties concede that the automobile accident was a cause of the stillbirth and that Tesar was the father of Vander Meulen's fetus. ⁴

Negligence

¶ 3 American Family's motion for summary judgment challenged Tesar's assertion that American Family should be liable for Vander Meulen's negligence in the death of her fetus. ⁵ The trial court concluded that Vander Meulen did not have a duty to her fetus and that, even if Vander Meulen were found negligent, public policy prevented liability. The court was concerned

with what it termed a “slippery slope” were it to allow Tesar's wrongful death case to proceed against American Family under Vander Meulen's insurance policy. This concern is the essence of American Family's argument on appeal.

¶ 4 Summary judgment methodology has been explained many times, and we need not do so again. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis.2d 804, 623 N.W.2d 751. Suffice it to say that here, no party asserts that there is an issue of material disputed fact, and each asserts entitlement to summary judgment. ⁶

¶ 5 Wisconsin uses a four-element analysis to determine whether a complaint states an actionable claim for negligence. Though it may appear obvious, the initial inquiry we must make in a negligence case to be decided on a motion to dismiss is whether the complaint states a claim in negligence in the first place. See Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 15, 251 Wis.2d 171, 641 N.W.2d 158. ⁷

789 N.W.2d 355

To constitute a cause of action for negligence there must be: (1) A duty to conform to a certain standard of conduct to protect others against unreasonable risks; ⁸ (2) a failure to conform to the required standard; (3) a causal connection between the conduct and the injury; and (4) actual loss or damage as a result of the injury.

Thomas v. Kells, 53 Wis.2d 141, 144, 191 N.W.2d 872 (1971). The standard of conduct or duty is “ordinary care.” Hocking v. City of Dodgeville, 2009 WI 70, ¶ 11, 318 Wis.2d 681, 768 N.W.2d 552; Dixson v. Wisconsin Health Org. Ins. Corp., 2000 WI 95, ¶ 42, 237 Wis.2d 149, 612 N.W.2d 721 (Abrahamson, C.J., dissenting). Using this standard, we are to make an assessment of what ordinary care requires under the circumstances. ⁹ Hocking, 318 Wis.2d 681, ¶ 11, 768 N.W.2d 552, and Dixson, 237 Wis.2d 149, ¶ 42, 612 N.W.2d 721. The four elements are described as duty, breach, cause, and damages. Negligence, described as the breach of a duty, Hofflander v. St. Catherine's Hospital, Inc., 2003 WI 77, ¶ 60, 262 Wis.2d 539, 664 N.W.2d 545, Ramsden v. Farm Credit Services, 223 Wis.2d 704, 714, 590 N.W.2d 1 (Ct.App.1998), can

cause damage or injury, but the negligent person may still not be liable for the damages. “ ‘The measure of the defendant's duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.’ ” Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 102 (1928) (Andrews, J., dissenting) (quoting Mr. Justice Holmes in Spade v. Lynn & Boston R.R. Co., 172 Mass. 488, 52 N.E. 747, 748 (1899)).

¶ 6 The element of duty has been problematic. In Osborne v. Montgomery, 203 Wis. 223, 231, 234 N.W. 372 (1931), when discussing “ordinary care,” the court noted: “In a consideration of this subject it is easy to get lost in a maze of metaphysical distinctions, or perhaps it may better be said it is difficult not to be so lost.” Two different concepts of duty formed the majority and the dissent in Palsgraf. Wisconsin has followed the dissent of Judge Andrews, who explained that “everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.” ¹⁰ Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶ 17, 318 Wis.2d 622, 768 N.W.2d 568. Judge Cardozo, who wrote Palsgraf's majority opinion, expressed a narrower view of duty: “In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining....” Palsgraf, 162 N.E. at 99-100 (citation omitted).

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¶ 7 Even after the four negligence elements have been established, courts may limit liability by considerations

of public policy. Alvarado v. Sersch, 2003 WI 55, ¶ 17, 262 Wis.2d 74, 662 N.W.2d 350. “Thus, negligence and liability are distinct concepts.” Id.

¶ 8 How do these concepts work here? While we review summary judgments de novo, Lambrecht, 241 Wis.2d 804, ¶ 21, 623 N.W.2d 751, we can see that the trial court's first reason for dismissing Tesar's complaint against American Family is wrong because the court noted: “I don't believe that a mother has a legal duty to ... the fetus.” This reasoning fits the majority opinion in Palsgraf, but it does not fit the broad view of duty in the Palsgraf dissent followed in Wisconsin. The correct question is whether Vander Meulen had a duty to the world at large to use ordinary care in operating her motor vehicle. With the correct question posed, the answer is easy: She did. The rest of the elements of a negligence claim follow without difficulty. Tesar has alleged that Vander Meulen breached her duty to use ordinary care in operating her motor vehicle, causing him damages (the wrongful death of a fetus which, had it been born alive, would have been his child). Thus, Tesar has alleged a claim of negligence. So far, there was no reason to dismiss Tesar's complaint against Vander Meulen's insurer, American Family.

¶ 9 The question becomes whether the claim should nonetheless be dismissed for public policy reasons. ¹¹ In Cormican v. Larrabee, 171 Wis.2d 309, 318, 491 N.W.2d 130 (Ct.App.1992), we said:

Liability is the rule and relief for public policy reasons is the exception. “The cases in which a causally negligent tort-feasor has been relieved of liability are infrequent and present unusual and extreme considerations.” Stewart v. Wulf, 85 Wis.2d 461, 479, 271 N.W.2d 79, 88 (1978). Our determination is not a matter of imposing liability but deciding whether not to impose it.

¶ 10 The supreme court has also decided when public policy considerations may be used to preclude liability: “[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.” Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 238, 55 N.W.2d 29 (1952); see also Fandrey v. American Family Mut. Ins. Co., 2004 WI 62, ¶ 15, 272 Wis.2d 46, 680 N.W.2d 345, and Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 656, 517 N.W.2d 432 (1994). “[C]ases in which a causally negligent tortfeasor is relieved of liability [on judicial public policy grounds] are infrequent and present unusual and extreme considerations.”

789 N.W.2d 357

Roehl Transport, Inc. v. Liberty Mut. Ins. Co., 2010 WI 49, ¶ 141, 325 Wis.2d 56, 784 N.W.2d 542

(citing Schlomer by Bye v. Perina, 169 Wis.2d 247, 253, 485 N.W.2d 399 (1992) (second alteration in original)). Using public policy factors to prevent liability is a drastic judicial remedy that should be employed sparingly because it denies a litigant his or her day in court, or, after a successful day in court, denies a litigant recovery for injury.

¶ 11 As explained by Judge Andrews in his dissent in Palsgraf, 162 N.E. at 103: “What we do mean by [policy factors] 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.” ¹² The Wisconsin Supreme Court put it this way: “Any 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.” Osborne, 203 Wis. at 237, 234 N.W. 372 (emphasis added). The key to understanding Osborne is to recognize that this sentence assumes a “wrongful act”...