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Published: August 31, 2009
Author: Timothy Barber
Introduction
Wisconsin's formulation of negligence law has, for the most part, been fairly straightforward: Wisconsin follows the minority opinion in Palsgraf v. Long Island R.R. Co., [1] under which everybody owes a duty of care to the entire world to act reasonably in any given set of circumstances, and courts cut off liability as a matter of law using "public policy factors" only after all the facts of the case have been developed. [2] While there are a number of Wisconsin cases that have held a defendant possessed no duty to act under a given set of circumstances, these are in the distinct minority, and "liability in negligence cases in Wisconsin more often has been limited by considerations of public policy[.]" [3] However, in two decisions issued the same day last term, the Wisconsin Supreme Court has introduced uncertainty as to how Wisconsin courts will address concepts of "duty," "breach," and "foreseeability" in negligence actions in the future.
To Act or Not to Act, That is the Question
In Hocking v. City of Dodgeville, [4] the Court addressed whether uphill landowners possessed a duty to control and manage surface water runoff flowing over their property. The Court's decision seems to suggest that in cases involving torts of omission, the plaintiff must identify an independent legal duty for the defendant to act before liability can attach.
The Hockings purchased rural land in the City of Dodgeville in the 1970s and constructed a home. [5] In the 1990s, the City allowed the surrounding area to be developed into a residential subdivision, and, as a result of the development, the Hockings' property became located at the bottom of a slope. [6] The grade of the new subdivision allegedly caused surface water runoff to flow from the surrounding properties onto the Hockings land and resulted in significant damage to the Hockings' home. [7] The Hockings sued the adjoining uphill landowners and their predecessors-in-interest under both negligence and nuisance theories, claiming their neighbors possessed a duty to re-direct or reduce the surface water runoff. [8]
The Court began its analysis by stating that although Wisconsin follows the minority Palsgraf approach to negligence claims, "[d]uty has always been a relevant element in Wisconsin's negligence analysis even though cases have more often been limited by the application of public policy factors." [9] The Court stressed that Wisconsin's traditional public policy analysis "does not eliminate consideration of the four elements of negligence." [10] The Court clarified that while under Palsgraf everyone owes a duty to the world at large, this duty "is not unlimited, but is rather restricted to what is reasonable under the circumstances." [11]
Applying the "reasonable use" rule that governs water usage in Wisconsin, the Court ruled that the defendants' use of their land was reasonable as a matter of law because "[t]hey did not create the flow of rainwater or alter the property so as to create this problem on the Hockings' property." [12] The Court ruled that a landowner has no duty to affirmatively act and abate a nuisance consisting of surface water runoff unless the landowner altered the flow of surface water and created the problem in the first instance. [13] The Court held: "[N]o negligence exists in this case because the defendants' conduct did not involve altering the flow of surface water, and therefore, there is no duty to abate." [14]
The majority opinion was based on the premise that there must be some independent duty to act before a defendant can be held liable for failing to abate a nuisance. "A positive duty to act must exist before liability will arise in a failure to abate claim such as the one presented here." [15] The majority refused to address public policy factors because "under the circumstances of this case, there is no doubt that the defendants did not have a duty to abate this nuisance." [16]
Chief Justice Abrahamson filed a concurring opinion, joined by Justice Bradley, and would have found that the homeowners had a general duty of care to manage surface water runoff on their property, but that they did not breach their duty because the nuisance condition in this case was not reasonably abatable. [17]
On the one hand, the majority opinion in Hocking can be viewed as a particularized application of Wisconsin's "reasonable use" doctrine for water usage and one of the few instances where courts will apply a no duty analysis. On the other hand, defendants will likely argue that Hocking reinvigorated the "no duty" defense under Wisconsin law and that its analysis should apply to any claim involving a failure to act.
The same day Hocking was released, the Court decided Behrendt v. Gulf Underwriters Ins. Co., [18] which is arguably inconsistent with the analysis used in Hocking, and further complicates Wisconsin negligence law by introducing a "no breach" defense when there is an unforeseen injury.
In Behrendt, the plaintiff was injured when a pressured oil tank exploded. The tank had been made ten years before the explosion by an employee of Silvan Industries as a "side job" for Behrendt's employer, and was subsequently modified by a third party to make it pressurized. [19] Silvan had a policy of allowing workers to use scrap metal for personal "side projects," but did not allow them to construct pressurized vessels. [20]
The Court began by restating the general principle (contrary to the holding in Hocking) that "'in a negligence case, a defendant's conduct "is not examined in terms of whether or not there is a duty to do a specific act, but rather whether the conduct satisfied the duty placed upon individuals to exercise that degree of care as would be exercised by a reasonable person under the circumstances."'" [21] Thus, the Court ruled that Silvan owed a duty of ordinary care to the plaintiff, and explained that while some cases may involve allegations that do not give rise to a duty to act, "this is not one of them." [22]
However, relying on the Restatement (Third) of Torts, the Court stated that Wisconsin law is consistent with the principle that "'[a] lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination.'" [23] The court noted that while past precedent had not distinguished between cases involving "no duty" and a determination that a defendant did not breach an existing duty, [24] "[i]n a case where there is no genuine issue of material fact as to the breach and where there is a lack of foreseeable risk, it can be said as a matter of law that, based on the facts presented, there is no breach." [25]
The Court concluded that the plaintiff's injury was not a foreseeable consequence of Silvan's policy of allowing employees to utilize scrap metal for personal side projects because Silvan expressly prohibited employees from making pressurized vessels and the tank was modified by a third party. [26] The Court ultimately held: "Here the lack of foreseeable risk is the basis for the determination that there was no breach, and, therefore, the granting of summary judgment as to the negligence claim was proper." [27]
The majority opinion leaves several questions unanswered. First, although it did not expressly adopt Section 7 of the Restatement (Third) of Torts, the decision relied heavily upon that section and the comments thereto. Indeed, it cited no precedent for dismissing a negligence action on the basis that the defendant did not breach the duty of ordinary care because the particular harm was unforeseeable except the Restatement of Torts (Third). Notably, prior cases in Wisconsin have held that "[w]hen assessing foreseeability, our courts do not require the plaintiff to prove that a particular injury is foreseeable; rather, it is sufficient to show that 'some injury could reasonably have been foreseen.'" [28] However, the majority in Behrendt focused on whether the specific injury that occurred was foreseeable. In this regard, the majority opinion seemingly obfuscated the "forseeability" factor from the traditional public policy analysis (which focuses the specific injury in each case) and the general notion that the "duty of care of a defendant is established when we can state that it was foreseeable that the defendant's act or omission could harm or injure another person." [29] The opinion is unclear as to whether the Court intended to change Wisconsin law and adopt the foreseeability framework set forth in Section 7 of the Restatement of Torts (Third).
Second, the majority opinion failed to explain what circumstances are proper for a court to make a "no duty" determination rather than a "no breach" determination. Third, the majority opinion implied that it could have reached the same result in this case utilizing a public policy analysis, yet failed to provide a persuasive explanation as to why it chose to utilize a "no breach" analysis. Fourth, the majority opinion fails to address the inconsistency of its holding with its Hocking decision.
To complicate matters further, Justice Roggensack filed a concurring opinion in which she argued that Wisconsin law utilizes a different standard for analyzing torts involving nonfeasance than torts involving misfeasance. She stated: "[T]he focus in a failure to act case is, at least initially, on examining the duty element of a negligence claim to determine the scope of that alleged duty under the circumstances. . . If it is determined that the duty of ordinary care under the circumstances presented did not include taking the action which was omitted, that is the end of the analysis... ." [30]
Chief Justice Abrahamson filed her own lengthy concurrence in which she attacked Justice Roggensack's concurrence as an inaccurate statement of Wisconsin law and further stated that Wisconsin law is not consistent with Section 7 of the Restatement Third of Torts in all respects. [31]
Conclusion
To put it plainly, after Hocking and Behrendt, Wisconsin negligence law is as clear as mud. As it stands, there are three methods defendants may use to obtain a ruling of non-liability as a matter of law. First, following Wisconsin's traditional approach, a defendant may argue on summary judgment or after trial that Wisconsin's six traditional public policy factors bar liability. Second, a defendant may move for a dismissal under the argument that no duty was owed to the plaintiff under a particular set of facts. Based on the Hocking decision and Justice Roggensack's concurrence in Behrendt, defendants in cases involving allegations nonfeasance will likely argue that the law generally imposes no positive duty to act unless the plaintiff can identify an independent source of a duty to act. Third, based on the majority opinion in Behrendt, a defendant may move for a dismissal under the argument that although it owed a duty of ordinary care to the plaintiff, it did not breach that duty as a matter of law because the injury in question was not foreseeable.
Neither Hocking nor Behrendt explain the circumstances under which each approach should be utilized. Thus, while Hocking and Behrendt are both favorable to defendants, these decisions will undoubtedly result in increased litigation and appeals, as circuit courts try to decipher the mixed messages coming from the Wisconsin Supreme Court.
Timothy M. Barber is an attorney at the Madison, Wisconsin law firm Axley Brynelson, LLP. He focuses primarily on appellate practice, commercial litigation and personal injury law. For more information on the Wisconsin negligence law, and the recent Hocking v. City of Dodgeville and Behrendt v. Gulf Underwriters Ins. Co. Wisconsin Supreme Court decisions, please contact Mr. Barber at 608.283.6740 or tbarber@axley.com.
[1] 248 N.Y. 339, 162 N.E. 99, 103 (1928) (Andrews, J., dissenting).
[2] See Rockweit by Donohue v. Senecal, 197 Wis. 2d 409, 419 n.5, 541 N.W.2d 742 (1995).
[3] Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶ 36, 308 Wis. 2d 17, 746 N.W.2d 220.
[4] 2009 WI 70, ___ Wis. 2d ___, 768 N.W.2d 552,
[5] Id., ¶ 3.
[6] Id., ¶ 4.
[7] Id., ¶ 4.
[8] Id., ¶ 5.
[9] Id., ¶ 11.
[10] Id.
[11] Id., ¶ 12.
[12] Id., ¶ 22.
[13] Id., ¶¶ 22, 24.
[14] Id., ¶ 26 (emphasis added).
[15] Id., ¶ 21.
[16] Id., ¶ 28.
[17] Id. ¶¶ 31-73."
[18] 2009 WI 71, __ Wis. 2d __, __ N.W.2d ___.
[19] Id., at ¶¶ 1, 5-7.
[20] Id., ¶ 5.
[21] Id., ¶ 16 (quoting Nichols, 308 Wis. 2d 17, ¶ 45 (in turn quoting Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906)).
[22] Id., ¶ 21.
[23] Id., ¶¶ 19-20 (quoting Restatement (Third) of Torts: Liability for Physical Harm § 7(a), cmt. j. (Proposed Final Draft No. 1, 2005).
[24] Id., ¶ 22.
[25] Id., ¶ 23.
[26] Id., ¶¶ 24-25.
[27] Id., ¶ 27.
[28] Morden v. Continental AG, 2000 WI 51, ¶ 47, 235 Wis.2d 325, 611 N.W.2d 659 (quoting Fischer v. Cleveland Punch & Shear Works Co., 91 Wis.2d 85, 97, 280 N.W.2d 280 (1979)). The Behrendt Court did not explain why a policy that allowed workers to use company material to make personal "side projects" did not create a risk of harm to somebody.
[29] Morden, 235 Wis. 2d 325, ¶ 46.
[30] Behrendt, 2009 WI 71, ¶¶ 105-06 (Roggensack, J., concurring).
[31] Id., ¶¶ 44-87 (Abrahamson, C.J., concurring).
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