Mackenzie FANDREY, a minor, by James B. Connell, her Guardian ad Litem, Plaintiff-Appellant, WISCONSIN PHYSICIANS SERVICE INSURANCE CORPORATION, Plaintiff, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Respondent, v. Michelle M. EGNER, Third-Party Defendant.
No. 02-2628
Supreme Court of Wisconsin
June 3, 2004
Oral argument November 4, 2003.
2004 WI 62 | 680 N.W.2d 345
ABRAHAMSON, C.J., joins.
For plaintiff-appellant there were briefs (in the court of appeals) by James B. Connell and Crooks, Low & Connell, S.C., Wausau, and oral argument by James B. Connell.
For the defendant-third-party plaintiff-respondent there was a brief by John A. Kramer, Michael J. Roman and Zalewski, Klinner & Kramer, LLP, Wausau, and oral argument by John A. Kramer.
I. FACTUAL BACKGROUND
¶ 2. This case comes before us following a grant of summary judgment in favor of American Family Mutual Insurance Company (American Family). The operative facts are straightforward and undisputed, as the plaintiff, Mackenzie Fandrey (Mackenzie), did not submit any competing summary judgment materials.
¶ 3. On December 23, 2000, Michelle Rausch (formerly known as Michelle Egner) and her three-year-old daughter, Mackenzie, drove to the home of Nicole Beliunas (formerly known as Nicole Patton) to deliver Christmas cookies. Michelle and Nicole had been best friends for a number of years and frequently visited each other. On the day in question, the Beliunases did not invite Michelle over, and Michelle had not called ahead to determine if the Beliunases were home. Upon reaching the Beliunases’ home, Michelle knocked on the back door, opened it, stepped inside, and called out. No one answered. Apparently, the Beliunases were at a movie and had left their door unlocked. Michelle proceeded to place the cookies on the kitchen table, which was a short distance from the door. She then put Mackenzie on a chair. While Michelle was writing a note to Nicole, Mackenzie, unbeknownst to Michelle, left the chair and proceeded into the Beliunases’ living room. Michelle subsequently heard Mackenzie scream and turned to see Mackenzie bleeding from the mouth and standing near the Beliunases’ dog, Molly.
¶ 4. Mackenzie, by her guardian ad litem, brought suit against the Beliunases’ insurer, American Family, alleging a cause of action under
¶ 5. The circuit court found that Michelle and Mackenzie did not have implied consent to enter the Beliunases’ house. It also found that Michelle knew the Beliunases kept Molly in their house. The court, relying on Alwin v. State Farm Fire & Casualty Co., 2000 WI App 92, 234 Wis. 2d 441, 610 N.W.2d 218, then found that public policy precluded Mackenzie‘s claim under
I don‘t know what else they could have done as responsible dog owners that would be any more restrictive than to keep the dog inside their home. . . . [S]trict liability under
Section 174.02 for the child‘s injury is wholly out of proportion to the culpability on the part of the homeowners and that allowance of recovery would place too unreasonable of a burden on the homeowners.And I believe that allowance of recovery under this set of facts would enter a field that has no sensible or just stopping point.
Mackenzie appealed, and we accepted certification of the aforementioned questions from the court of appeals.
¶ 6. Whether public policy acts as a bar to a claim in any given case is a question of law that this court decides de novo. Rockweit v. Senecal, 197 Wis. 2d 409, 425, 541 N.W.2d 742 (1995). Mackenzie contends that public policy cannot be used by courts to modify or curtail the effect of a legislative enactment that imposes strict liability because “[t]he ultimate source of public policy in this state is the state legislature.” (Appellant‘s Br. at 8). Mackenzie further contends that courts should not interfere with the legislature‘s decision regarding the sensible stopping point of the law, and that the legislature, not the judiciary, is the appropriate forum for determining whether a homeowner should be liable under the dog bite statute. Mackenzie principally relies upon two cases in support of this argument: Borgins v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911), and Meunier v. Ogurek, 140 Wis. 2d 782, 412 N.W.2d 155 (Ct. App. 1987).
¶ 7. In Borgins, this court decreed:
Public policy on a given subject is determined either by the constitution itself or by statutes passed within constitutional limitations. In the absence of such constitutional or statutory determination only may the decisions of the courts determine it. . . . When acting within constitutional limitations, the legislature settles and declares the public policy of a state, and not the court.
Borgins, 147 Wis. at 351. Similarly, in Meunier, when interpreting
[The statute] unambiguously states the conditions under which a dog owner is liable, we may not add more by implication or statutory construction.
. . . [The statute] simply states that the owner is liable for damages caused by the dog injuring or causing injury to a person, livestock or property.
¶ 8. American Family responds that Borgins is inapposite because the term “public policy” was used in Borgins in the context of the broader notion of the state‘s public policy, whereas the “public policy” as used in the present case refers to the courts’ long practice of precluding liability for a tortious act in a particular case based on Wisconsin‘s view of “cause.” For the reasons discussed below, we agree with American Family‘s argument and hold that courts may use the six traditional public policy factors to bar a claim under
¶ 9. Resolution of this issue requires not only an inquiry into the nature of
¶ 10. It is with this understanding that we now examine the history behind the application of the six public policy factors used to preclude liability and the relationship between “public policy” and “proximate cause.”7 In Wisconsin, when “public policy” is used in
¶ 11. Early in Wisconsin jurisprudence, the term “proximate cause” referred to two distinct concepts. The first use of the term was to describe “limitations on liability and on the extent of liability based on [] lack of causal connection in fact.” Richard V. Campbell, Duty, Fault, and Legal Cause, 1938 Wis. L. Rev. 402, 403. The second use of the term was to describe “limitations on liability and on the extent of liability based on . . . policy factors making it unfair to hold the party [liable].” Id. The second use of the term probably had its origins from the venerable Judge Andrews: “What we do mean by the word ‘proximate’ 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.” Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting)(emphasis added).
The court has acknowledged that legal cause in negligence consists of two parts, the first being cause-in-fact, the second “proximate cause.” Regarding the first component, or cause-in-fact, this court has stated that the test is whether the negligence was a “substantial factor” in producing the plaintiff‘s injury.”
. . . “[P]roximate cause,” the second component of causation in negligence cases, which is separate from the cause-in-fact determination, may deny recovery. “Proximate cause” involves public policy considerations and is a question of law solely for judicial determination.
Sanem v. Home Ins. Co., 119 Wis. 2d 530, 537-58, 350 N.W.2d 89 (1984) (citations omitted). See also Morgan, 87 Wis. 2d at 735 (noting that “[l]egal cause in negligence actions is made up of two components, cause-in-fact and ‘proximate cause,’ or policy considerations“). “These public policy considerations are an element of legal cause, though not a part of the determination of cause-in-fact.” Id. at 737.
¶ 13. This relation between public policy factors and the second step in the legal cause analysis is still recognized today.
To discern whether [cause] exists, we must determine whether the defendant‘s actions were a “cause-in-fact” of the injuries. If they were, we explore whether the conduct of the defendant was a “proximate cause” of the harm sustained by the plaintiff. Proximate cause involves public policy considerations for the court that may preclude the imposition of liability. . . After the determination of the cause-in-fact of an injury, a court may still deny recovery after addressing policy considerations, or legal cause.
Morden, 235 Wis. 2d 325, ¶ 60; See also Alvarado v. Sersch, 2003 WI 55, ¶ 42, 262 Wis. 2d 74, 662 N.W.2d 350 (Sykes, J., dissenting) (“What we in Wisconsin refer to as public policy limitations on liability, Judge Andrews catalogued as factors that govern the court‘s
¶ 14. When Wisconsin courts currently speak of “cause,” they do so in the context of the substantial factor test for cause-in-fact. Given Wisconsin‘s broad formulation of duty and causation (cause-in-fact) it is true that “the determination to deny liability is essentially one of public policy rather than of duty or causation,” Rockweit, 197 Wis. 2d at 425, if “causation” is understood in its current context as referring to “cause-in-fact,” or “substantial factor.”9 Thus, this court
¶ 15. However, it is important to recognize and appreciate this relationship between “public policy” and the second step in the legal cause analysis, formerly referred to as “proximate cause.” Whether public policy is conceptualized as the second step in the legal cause
courts currently do, in reference to “cause-in-fact.” See id. at 426 (” ‘It is recognized by this and other courts that even where the chain of causation is complete and direct, recovery against the negligent tort-feasor may sometimes be denied on grounds of public policy. . . .‘“) (emphasis added) (quoting Colla 1 Wis. 2d at 598-99). Thus, two years after Rockweit was decided, this court, in an opinion written by the author of today‘s decision, declared: “‘In tort actions, the only limitations [on damages] are those of “proximate cause” or public policy considerations.’ ” Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 119, 564 N.W.2d 692 (1997) (quoting Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 575, 335 N.W.2d 834 (1983)) (emphasis added).
¶ 16. Thus, it should be manifest that what we mean by “public policy” as referred to in tort law is completely different than the use of the term in Borgins. The legislature‘s determination of “public policy” in a broader context relates to what is politically appropriate for the state as a whole. When “public policy” is used in this context, it is true that the judiciary is limited to applying the policy the legislature has chosen to enact, and may not impose its own policy choices. See Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶ 34, 267 Wis. 2d 59, 671 N.W.2d 633. This stands in stark contrast to the judiciary‘s use of “public policy,” formerly referred to as “proximate cause,” which refers to the practice of limiting tort liability as part of the legal cause analysis “on
Kendall W. Harrison, Wisconsin‘s Approach to Proximate Cause, 73 Wisconsin Lawyer 20, 55-56 (Feb. 2000); See also Morgan, 87 Wis. 2d at 738 (noting that “[o]ne policy ground for relieving a negligent tortfeasor from liability for conduct which has been a substantial factor in producing injury is the intervening and superseding cause doctrine. The doctrine is another way of saying the negligence is too remote from the injury to impose liability.“).
¶ 17. While public policy as a limit on liability was conceived in negligence law, the doctrine has grown and progressed to other areas of tort law. Wisconsin has since rendered public policy factors applicable in strict liability tort actions. See Ransome v. Wis. Elec. Power Co., 87 Wis. 2d 605, 625, 275 N.W.2d 641 (1979) (discussing public policy factors in context of strict liability claim but concluding liability should not be denied in that particular case); Beacon Bowl, 176 Wis. 2d at 763 (concluding that under Ransome, public policy factors could be applied to cut off liability under strict liability action, but that liability should not be denied in that particular case).
¶ 18. In Physicians Plus Insurance Corp. v. Theresa Mutual Insurance Co., 2002 WI 80, ¶ 32, 254 Wis. 2d 77, 646 N.W.2d 777, this court concluded that public policy could be utilized to bar a claim for maintaining a public nuisance. In Physicians Plus, the court noted that liability for a public nuisance does not depend upon proof of the plaintiff‘s lack of ordinary care. Id., ¶ 27. The court then compared liability for failure to abate a public nuisance to violations of the safe place statute and stated that liability for maintaining a public nuisance may arise solely on the basis of notice of a dangerous condition. Id., ¶ 28 & n.24. The court further noted that when all the elements for failure to abate a public nuisance are proven, liability is analogous to negligence per se—failure to act in accordance with statutory minimum duties. Id., ¶ 43. The court then proceeded to apply the public policy factors. Id., ¶ 44. Therefore, Physicians Plus supports the proposition that public policy factors may be applied even where the underlying cause of action does not involve proof of specific acts of negligence.
There is no liability upon the failure to meet the required duty until such negligence is found to be the legal cause of the plaintiff‘s injuries. . . .
This is not to ignore case law supporting the use of public policy factors in cutting off liability even where negligence and a causal relation have been established.
Id. at 227 & n.5. Therefore, even when causation is presumed from the violation of a statute, that cause must still be the legal cause of the injury, such that public policy may act as a bar to recovery.
¶ 21. Also,
¶ 22. In addition, the court of appeals has twice indicated that public policy factors may be used to limit liability under
¶ 23. At oral argument, much was made of the fact that the applicable statute in Becker,
¶ 24. While Becker discussed the applicability of public policy factors, it did not apply them to the facts of the case; thus, the language is arguably dicta. However, in Alwin, 234 Wis. 2d 441, ¶¶ 11–14, the court of appeals specifically applied the public policy factors to preclude liability where the plaintiff was injured after tripping over the defendant‘s sleeping dog. While it is true that the issue of whether the public policy factors could be applied to the case was not specifically before the court, the court of appeals’ conclusion in Alwin that application of those factors prevented liability presupposed that public policy could be applied to the statute.
¶ 25. Therefore, Mackenzie‘s reliance upon Meunier is misplaced. As noted above, the court of appeals in Meunier stated: “The statute is complete. It permits no additions.” Meunier, 140 Wis. 2d at 786. However, Mackenzie takes this language entirely out of context. The plaintiff‘s wife in Meunier was riding a farm tractor when she noticed a dog running under the machine. Startled, she popped the clutch and the tractor tipped over, killing her. Id. at 785. At issue was whether the applicable statute imposed liability on the dog‘s owner even in the absence of proof that the dog was mischievous or vicious. Id. at 784. Under the previous version of the statute, liability ensued only if the dog was mischievous or vicious. Id. at 787 n.4. However, the statute at issue in Meunier had since been amended to eliminate the reference to mischievous or vicious dogs. Id. Apparently, the circuit court relied on the older version of the statute in granting summary judgment to the defendant. Id. at 784. It was in this context that the
¶ 26. Wisconsin courts have at least twice indicated that strict liability under
Where a law passed by the legislature has been construed by the courts, legislative acquiescence in or refusal to pass a measure that would defeat the courts’ construction is not an equivocal act. The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged[.]
Zimmerman v. Wis. Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648 (1968). Thus, “[l]egislative silence with regard to new court-made decisions indicates legislative acquiescence in those decisions.” State v. Olson, 175 Wis. 2d 628, 641, 498 N.W.2d 661 (1993), cited in State v. Lindell, 2001 WI 108, ¶ 155 n.8, 245 Wis. 2d 689, 629 N.W.2d 223 (Abrahamson, C.J., dissenting). The legislature has not in any way indicated that the judiciary is precluded from applying public policy factors to temper the sometimes-harsh results of strict liability under
¶ 27. Mackenzie contends that even if public policy factors may be applied to
¶ 28. Here, the underlying facts are easily ascertainable and are not disputed, as the depositions of Michelle and Nicole are consistent with each other. This case comes to us after a grant of summary judgment, and Mackenzie did not submit any competing summary judgment materials to the circuit court. Michelle admitted that she did not have express permission to enter the Beliunases’ home. Further, she admitted that the two usually set up visits in advance and this was the first time she (Michelle) had actually ventured into the inside of the Beliunases’ home when they were away. These are the essential facts that are relevant to the application of public policy factors. Further, the parties have fully briefed the relevant public policy factors
¶ 29. Having determined that public policy may be used to limit liability under
¶ 30. The circuit court dismissed Mackenzie‘s claim on the basis of three of the public policy factors: 1) recovery would be too out of proportion with the culpability of the Beliunases; 2) allowing recovery would place too unreasonable a burden on the homeowners; and 3) allowing recovery would enter a field that has no sensible or just stopping point. Specifically, the circuit court took into account the fact that Michelle and Mackenzie did not have implied consent to enter the Beliunases’ home and that Michelle was aware that the Beliunases kept Molly in the house. Finally, the
¶ 31. Mackenzie alleges that these policy factors are not applicable to the case at bar. Mackenzie argues that the first two policy factors relied upon by the circuit court are irrelevant because this is a strict liability action and the negligence or culpability of the tortfeasor is inapposite. She also argues that the third factor does not apply because the legislature has already determined the just and sensible stopping point of the statute.
¶ 32. In rejecting these arguments, we note that the court in Beacon Bowl, 176 Wis. 2d at 761-63, determined that the six public policy factors were applicable in strict product liability actions, but did not suggest that certain factors categorically would not apply. Mackenzie‘s argument that culpability is not a factor is unavailing. While strict liability relieves a plaintiff from proving specific acts of negligence, Meunier, 140 Wis. 2d at 785, it does not preclude a court from considering the extent of such negligent activity, if any, in determining whether public policy factors bar the claim. See Beacon Bowl, 176 Wis. 2d at 760-66 (considering public policy factors in light of Wisconsin Electric Power Company‘s negligence in failing to trim trees after the jury found that the electricity it provided was defective and unreasonably dangerous).
¶ 33. Further, the court in Alwin, 234 Wis. 2d 441, ¶ 14, denied liability, in part, because “to impose liability under the dog owner statute for injuries arising solely from a sleeping dog would effectively result in a pure penalty for dog ownership.” This is synonymous
¶ 34. Applying these factors to the case, we agree with the circuit court that recovery here would be too out of proportion with the culpability of the Beliunases. Essentially the only thing the Beliunases did “wrong” here was to leave their door unlocked. Nicole testified that, knowing Molly did not like to be around children, she always made a conscious effort to separate Molly from Mackenzie or other children when they were present. We also note that Nicole‘s uncontroverted testimony establishes that the Beliunases also had another dog, Casey, that Mackenzie would play with by jumping on and pulling his tail and ears.
¶ 35. Further, we agree that liability here would place too unreasonable a burden on the Beliunases. The circuit court indicated that requiring homeowners to do anything more than keep their dogs in the house when the homeowners are away would be unreasonable. We concur with American Family that to allow recovery here would result in clearly unreasonable consequences, as dog owners would be forced, prior to leaving their homes, to kennel their dogs, muzzle them, or lock them in cages. We think it unreasonable to force homeowners to keep their homes and dogs under lock and key at all times to avoid liability.
¶ 37. While Mackenzie attempts to characterize Michelle‘s unauthorized entry into the Beliunases’ home as a routine occurrence between friends, the summary judgment materials do not support this con-
¶ 38. In addition, the evidence unequivocally demonstrates that the Beliunases did not have any knowledge of Michelle previously entering their home. Nicole stated that she was not aware that Michelle had ever entered their home when they were not present. Further, Nicole was not aware that Michelle would sometimes step inside the doorway to her home and call out to see if the Beliunases were home. These facts are not contradicted by Michelle‘s testimony. Michelle agreed that the Beliunases did not know that she was coming over the day in question and that she did not have permission to enter their home. Thus, viewing the summary judgment evidence in a light most favorable to Mackenzie, we conclude that the undisputed facts contained in the record support the circuit court‘s
¶ 39. Were we to allow liability in such a case, liability would enter a field that has no sensible or just stopping point. For example, were we to allow liability here, the door would be open to imposing liability on a homeowner when a burglar enters his or her home and is injured by a dog. While Mackenzie contends that this contingency is better dealt with by the use of comparative negligence principles, public policy would undoubtedly preclude liability even if a putative thief meticulously picked a locked door and gingerly entered the premises, only to unexpectedly encounter a vigilant hound. We conclude that to allow liability in this case, where the plaintiff entered the dog owner‘s home without express or implied permission, would enter a field that has no sensible or just stopping point.
IV. SUMMARY
¶ 40. In conclusion, we hold that the six traditional public policy factors the judiciary uses to preclude liability in tort actions are applicable to
By the Court.---The order of the Marathon County Circuit Court is affirmed.
¶ 41. ANN WALSH BRADLEY, J. (concurring). The first certified question is whether a court
¶ 42. I focus first on a part of paragraph 22. I agree with the majority that because
¶ 43. As it traces the paths of Wisconsin jurisprudence, the majority explains that “cause” refers to two distinct concepts: cause-in-fact and proximate cause. Id., ¶ 12. It expands the discussion to address the historic evolution of the six public policy factors and their relationship to proximate/legal cause. Id., ¶ 10.
¶ 44. The majority announces that “[w]hether public policy is conceptualized as the second step in the legal cause analysis, or a fifth step following the duty, breach, cause, damage inquiry, the fact remains that ‘public policy’ is inexorably tied to legal cause in Wisconsin.” Id., ¶ 15. Finally, after using the terms “proximate cause” and “public policy” interchangeably, it ultimately concludes that public policy factors can limit liability. Id., ¶ 40. Lest the focus be lost, I emphasize that the answer as I see it lies in the above-referenced part of paragraph 22.
¶ 45. I focus next on footnote 7 of the majority opinion. The majority, at times, uses the terms “proximate cause” and “public policy” interchangeably. This may leave the reader wondering about the continued vitality of using proximate cause to limit liability. Foot-
¶ 46. For the reasons stated above, I respectfully concur.
¶ 47. I am authorized to state that SHIRLEY S. ABRAHAMSON, C.J. joins this concurrence.
Notes
(1) Liability for injury. (a) Without notice. Subject to
s. 895.045 [comparative negligence] and except as provided ins. 895.57(4) [immunity for damage due to unauthorized release of animals], the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.
The court‘s first public policy factor, “whether the injury is too remote from the negligence,” is a restatement of the old chain of causation test. . .
What this factor does. . . is to revive the “intervening” or “superseding” cause doctrine and dress it in new clothes. . . .
The second factor, “whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor,” helps to determine. . . the discrepancy between the degree of negligence and the degree of injury. . . .
The third factor, “whether in retrospect it appears too extraordinary that the negligence should have brought about the harm,” is a variant of the reasonable foreseeability test [used previously to determine duty]. . . . Because the court has determined that everyone owes a duty of ordinary care to others, this third factor is necessary to provide some limit for bizarre consequences and unforeseeable plaintiffs.
The fourth factor, “whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor” recognizes that tort law should not seek to deter all conduct that involves risk, just conduct that involves too much risk. Many of the cases in which the public policy factors are necessary involve situations where the actual harm was not reasonably foreseeable.