Widell v. Tollefson

• Decision Date: 23 October 1990
• Docket Number: No. 89-2140,89-2140
• Citation: 158 Wis.2d 674,462 N.W.2d 910
• Parties: Pearl B. WIDELL, Plaintiff-Appellant-Cross Respondent, d v. Clarence A. TOLLEFSON, and Donna L. Tollefson, Defendants-Respondents-Cross Appellants.
• Court: Wisconsin Court of Appeals

Page 910

462 N.W.2d 910

158 Wis.2d 674

Pearl B. WIDELL, Plaintiff-Appellant-Cross Respondent,^d v. Clarence A. TOLLEFSON, and Donna L. Tollefson Defendants-Respondents-Cross Appellants.

No. 89-2140.

Court of Appeals of Wisconsin.

Submitted on Briefs June 18, 1990.

Opinion Released Oct. 23, 1990.

Opinion Filed Oct. 23, 1990.

Patrick F. Brown of De Bardeleben & Associates, Park Falls, for plaintiff-appellant-cross respondent.

Thomas D. Bell of Doar, Drill & Skow, S.C., New Richmond, for defendants-respondents-cross appellants.

Before EICH, C.J., CANE, P.J., and MYSE, J.

MYSE, Judge.

Pearl Widell appeals a judgment dismissing her complaint against Clarence and Donna Tollefson for the wrongful death of her husband, Gordon Widell, and restricting her prescriptive easement to use a road over the Tollefsons' property to seasonal use. Widell argues that the trial court erred by dismissing her complaint against the Tollefsons, concluding as a matter of law that the Tollefsons' conduct was not the proximate cause of her husband's death. She also claims the court improperly restricted the prescriptive easement to seasonal use and improperly failed to specify the easement's width. The Tollefsons cross-appeal, arguing that the evidence was insufficient to prove a prescriptive easement because the evidence failed to establish that the use of the Tollefsons' property was "hostile" and "continuous."

Because we conclude that the Tollefsons' conduct is too remote to be the proximate cause of Gordon's death, that credible evidence sustains the jury's finding of a prescriptive easement and that the judgment describes sufficiently the physical boundaries of the easement, we affirm that portion of the judgment. However, because the court restricted the use of the prescriptive easement to April through October without finding that winter use would unreasonably burden the servient estate, we reverse that portion of the judgment.

The Widells owned a parcel of land in Sawyer County with the southern shore of Schoolhouse Lake forming the northern boundary of their property and the northern shore of Durphee Lake forming the southern boundary. The Tollefsons owned adjoining property with similar frontage on both lakes. The Widells purchased their property from Gladys Tusken in 1977. The Tollefsons purchased their parcel in 1986 from Lillian Larson. The Tuskens used a gravel road on the Larson/Tollefson parcel to obtain access from their Durphee Lake frontage to their Schoolhouse Lake frontage from 1962 to the time the Widells acquired title. The Widells continued to use this access road following their purchase of the Tuskens' property until June of 1987 when the Widells found posts and a gate erected on the Tollefsons' land blocking the road and restricting the Widells' access to their Schoolhouse Lake frontage.

Widell alleges that this discovery caused Gordon Widell to become upset and emotionally distraught. She contends that Gordon took a handsaw and began cutting down trees adjacent to the gate for the purpose of clearing a path around the barricade. Gordon, who suffered from arteriosclerosis and hypertension, sustained a heart attack and died after performing this task. Widell alleges that, by erecting the gate, the Tollefsons caused Gordon emotional aggravation and physical overstress that resulted in his death. Widell filed a complaint seeking damages for wrongful death and a declaration of her right to a prescriptive easement for use of the access road. The court granted a motion for a directed verdict dismissing Widell's claim for wrongful death.

The jury ultimately determined that Widell had acquired a prescriptive easement to use the road across the Tollefsons' property. The court then limited the easement to April through October of each year, assumably because the evidence demonstrated that the Widells only used their property during those months.

Legal cause in negligence consists of cause-in-fact and "proximate cause," or policy considerations. Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 735, 275 N.W.2d 660, 666 (1979). Cause-in-fact exists when the negligent conduct is a substantial factor contributing to the injury. Id. ¹ However, public policy considerations may preclude liability despite a finding of negligence and cause-in-fact. Id. at 737, 275 N.W.2d at 667. Some of these public policy factors are: (1) whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether it retrospectively appears too highly extraordinary that the negligence should have brought about the harm; (4) whether the allowance of recovery would place too unreasonable a burden on the negligent tortfeasor; (5) whether the allowance of a recovery would be too likely to open the way for fraudulent claims; or (6) whether the allowance of recovery would have courts entering a field that has no sensible or just stopping point. Id.

Determination of proximate cause through evaluation of these public policy considerations presents a question of law. See Coffey v. City of Milwaukee, 74 Wis.2d 526, 541, 247 N.W.2d 132, 140 (1976). Appellate courts review conclusions of law de novo. First Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977). We conclude that the trial court properly determined that the Tollefsons' conduct in erecting a barricade across their property was not the proximate cause of Gordon Widell's death.

At least two of the public policy factors we have identified compel this conclusion. First, the Tollefsons' negligence in putting a barricade across the access road is too remotely related to Gordon Widell's death to permit recovery. Gordon's existing heart condition and his decision to physically exert himself were significant factors that came between the building of the gate and Gordon's death. Second, Gordon's death is wholly out of proportion with whatever culpability was involved in erecting the gate. No reasonable person would foresee that building this gate would result in such harm. Because of this lack of foreseeability, Gordon's death is out of proportion to the Tollefsons' culpability.

Widell argues that Colla v. Mandella, 1 Wis.2d 594, 85 N.W.2d 345 (1957), supports her claim that the Tollefsons' conduct was the proximate cause of Gordon Widell's death. In Colla, a parked truck had rolled down a hill and hit the side of a house. The house's occupant who suffered from high blood pressure and a heart condition had a heart attack and died because of the noise resulting from the crash. The supreme court held that public policy did not deny recovery in that case.

Widell's reliance on Colla is misplaced. The facts of this case are at least one step removed from those that existed in Colla. The deceased in Colla did nothing that contributed to his heart attack. Rather, his death was the result of his involuntary reaction to a truck crashing into his home. As the court stated in Colla, "[t]o the suggestion that the damages in the present case are wholly out of proportion to [defendant's] culpability, it may be answered that neither Colla nor the plaintiff, his wife, were negligent or culpable at all, and hence it would be more unfair to leave the burden on them than to put a part of it on the defendants." Id. at 600, 85 N.W.2d at 349. Gordon Widell, however, contributed to his heart attack by engaging in strenuous physical conduct he deliberately chose to undertake notwithstanding his knowledge of his own heart problems.

Widell also argues that the trial court erred by failing to submit the cause-in-fact issue to the jury before evaluating proximate cause by application of the public policy factors. Under some circumstances this may be the preferred method of proceeding, but proceeding in such a fashion is not an absolute requirement. Morgan, 87 Wis.2d at 737-738, 275 N.W.2d at 667. The trial court addressed the issue of proximate cause after hearing and evaluating all the evidence introduced by Widell. We are satisfied that the trial court correctly determined as a matter of law that the Tollefsons' conduct was not the proximate cause of Gordon Widell's death.

The Tollefsons cross appeal, claiming that there is insufficient evidence to demonstrate that the Widells' use of this property was "hostile" and "continuous." A prescriptive easement is created by use that is adverse, hostile and inconsistent with the exercise of the titleholder's rights; visible, open and notorious; under an open claim of right; and continuous and uninterrupted for twenty years. Ludke v. Egan, 87 Wis.2d 221, 230, 274 N.W.2d 641, 646 (1979). The unexplained use of property for a period of twenty years is presumed adverse and under a claim of right. Id. at 230-231, 274 N.W.2d at 646.

We review a claim of sufficiency of the evidence with deference to the fact-finder. If there is any credible evidence supporting the jury verdict, we will sustain it. Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984). The determination of the credibility of witnesses and the weight afforded their testimony is left to the fact-finder. Id.

We therefore examine the evidence to see whether a reasonable fact-finder could conclude from this evidence that the Widells' use of the access road was "hostile" and "continuous." The Tollefsons argue that the use was not "hostile" because the Tuskens and Larsons were related and had a very close relationship. However, "hostile" does not mean "unfriendly intent" or require a "manifestation of ill will." Shellow v. Hagen, 9 Wis.2d 506, 511, 101 N.W.2d 694, 697 (1960). Hostility merely requires that the use be inconsistent with the titleowner's rights. Id. The evidence demonstrated that the Widells and the Tuskens made use of this road for more than twenty years prior to the Tollefsons building a gate. As noted, twenty years of unexplained use...