Alvarado v. Sersch

2003 WI 55, 662 N.W.2d 350, 262 Wis. 2d 74, 2003 Wisc. LEXIS 423

• Court: Wisconsin Supreme Court
• Decided: June 5, 2003
• Docket: 01-1715
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. The petitioners, Dora Alvarado and her four minor children, seek review of a published court of appeals decision affirming a circuit court grant of summary judgment in favor of the respondents, Oakbrook Corporation, Meriter Retirement Services, Inc., and Meriter's insurer.¹ Alvarado asserts that the court of appeals erred in using public policy factors to limit liability before all the facts were considered. Because we conclude that there are genuine issues of material fact, we determine that the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

HH

¶ 2. Meriter Retirement Services, Inc. (Meriter) owns student apartments in Madison that are managed by Oakbrook Corporation (Oakbrook). On August 12, 1998, during the busy student turnover period, Oakbrook's property manager walked through a vacated apartment to inspect the premises. In his deposition he testified that "cabinets" were on his checklist, but he did not remember checking them.

¶ .3. On August 13, 1998, a páinting crew entered the apartment. One of the painters discovered what he believed to be a "candle" in the kitchen cabinet. Another painter recognized it as a firework device. They moved the item out of the way and continued working. No one in the crew informed Oakbrook or Meriter about the firework.

¶ 4. On August 14, 1998, Dora Alvarado and Ron Boehm, the owner of the janitorial service retained by Oakbrook, entered the apartment to clean it. Alvarado had already completed a ten- to eleven-hour shift that day, but had been called back to work. Boehm noticed what he thought to be a candle on the windowsill. He commented to Alvarado that it was a "strange looking candle." It was described as a wax candle with red, white, and blue colors, about six inches tall, and an inch in diameter. ~

¶ 5. After Boehm left the apartment, Alvarado began cleaning the interior of the gas stove. She opened the stovetop to expose the burner trays for vacuuming. Alvarado knew it was necessary to preserve the flame of the pilot light, which occasionally extinguished during the cleaning process. Because she had forgotten to bring matches, she decided to use the "candle" to preserve the flame, and lit the device with the pilot flame. The firework exploded as she was setting it down, blowing off most of her right hand.

¶ 6. Alvarado and her children filed a complaint in Dane County circuit court against Meriter, Oakbrook, the painting contractor, and each of their insurers. The plaintiffs sought damages as a result of Alvarado's personal injuries.

¶ 7. The circuit court granted Oakbrook and Meriter's motion for summary judgment. It concluded that Oakbrook and Meriter did not have a duty of care to protect Alvarado from a potential harm they neither knew nor reasonably could have foreseen.

¶ 8. The court of appeals affirmed the circuit court's grant of summary judgment for Oakbrook and Meriter, but employed a different rationale. Rather than focusing on negligence, the court of appeals considered public policy factors that limit a defendant's liability. It concluded that the injury was too remote from the negligence, and in retrospect it appeared too highly extraordinary that the negligence should have resulted in the harm. Under this analysis, the court of appeals determined that public policy barred any imposition of liability, and therefore it affirmed the circuit court's grant of summary judgment.

II

¶ 9. Alvarado seeks a reversal of the court of appeals' decision, and a remand for a jury trial. She argues that it was improper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented to a jury for a determination of negligence. She asserts that the grant of summary judgment was error because there remain genuine issues of material fact.

¶ 10. Summary judgments are reviewed applying the same methodology a circuit court uses under Wis. Stat. § 802.08(2). Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no genuine issues of material fact then the moving party is entitled to a summary judgment as a matter of law. Id.; Wis. Stat. § 802.08(2) (2001-02).

¶ 11. Whether it was proper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented in a negligence determination is a question of law subject to independent appellate review. Gritzner v. Michael R., 2000 WI 68, ¶ 27, 235 Wis. 2d 781, 611 N.W.2d 906.

¶ 12. In addressing the court of appeals' reliance on public policy to affirm the circuit court's grant of summary judgment, we first briefly summarize the laws of negligence and liability that are relevant to this case. We then apply the law and conclude that the court of appeals erred when it affirmed the grant of summary judgment, limiting liability based on public policy factors prior to trial.

III

¶ 13. Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad. Rockweit v. Senecal, 197 Wis. 2d 409, 419-20, 541 N.W.2d 742 (1995). In that dissent, Judge Andrews explained that "[e]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting).

¶ 14. Every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Gritzner, 235 Wis. 2d 781, ¶¶ 20 & 22. In Wisconsin a duty to use ordinary care is established whenever it is foreseeable that a person's act or failure to act might cause harm to some other person. Id., ¶ 20. Under the general framework governing the duty of care, a " 'person is not using ordinary care and is negligent, if the person, without intending to do harm does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.'" Id., ¶ 22 (quoting Wis JI — Civil 1005).

¶ 15. The question of duty is nothing more than an "ingredient in the determination of negligence." A.E. Investment Corp. v. Link Builders, 62 Wis. 2d 479, 484, 214 N.W.2d 764 (1974). Once it has been determined that a negligent act caused the harm, "the question of duty is irrelevant and a finding of nonliability can be made only in terms of public policy." Id. at 485.

¶ 16. The "duty" ingredient of negligence should not be confused with public policy limitations on liability.² "[T]he doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability." Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 644, 517 N.W.2d 432 (1994). "In Wisconsin, one always owes a duty of care to the world at large, which is why '[t]he consistent analyses of this court reveal that the question of duty is not an element of the court's policy determination." Rockweit, 197 Wis. 2d at 433 (Abrahamson, J. concurring) (quoting A.E. Investment, 62 Wis. 2d at 484).

¶ 17. Thus, negligence and liability are distinct concepts. A.E. Investment, 62 Wis. 2d at 484-85. After negligence has been found, a court may nevertheless limit liability for public policy reasons. Gritzner, 235 Wis. 2d 781, ¶ 24; Rockweit, 197 Wis. 2d at 421; A.E. Investment, 62 Wis. 2d at 484. The public policy considerations that may preclude liability are:

(1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; [or] (6) allowing recovery would enter a field that has no sensible or just stopping point.

Gritzner, 235 Wis. 2d 781, ¶ 27.

¶ 18. In most cases, the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability. Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. Gritzner, 235 Wis. 2d 781, ¶ 26; Sawyer v. Midelfort, 227 Wis. 2d 124, 141, 595 N.W.2d 423 (1999); Bowen, 183 Wis. 2d at 655; Schuster v. Altenberg, 144 Wis. 2d 223, 241, 424 N.W.2d 159 (1988); Coffey v. City of Milwaukee, 74 Wis. 2d 526, 542, 247 N.W.2d 132 (1976).

¶ 19. A jury's determination of negligence includes an examination of whether the defendant's exercise of care foreseeably created an unreasonable risk of harm to others. Rockweit, 197 Wis. 2d at 423. Public policy factors can also implicate the concept of foreseeability. In a sense, evidence regarding foreseeability can play a dual role. Besides having the aid of the jury's opinion when assessing liability, a judge will also be aided by the facts that were brought to light during the jury trial. Having examined the law, we next apply those principles to the facts in this case.

IV

¶ 20. The court of appeals erred in affirming the summary judgment on public policy grounds. This case requires a full factual resolution before application of a public policy analysis. It is not one of those simple cases where public policy can be used to limit liability before finding negligence. Here, there remain genuine issues of material fact, and public policy factors limiting liability should be considered only after a full resolution of the facts at trial.

¶ 21. It is desirable to have a full trial to precede the court's determination because the issues in this case are complex and the factual connections attenuated. Bowen, 183 Wis. 2d at 655. A jury will hear testimony about the standard of care that a reasonable property manager would exercise in inspecting a vacated apartment. Oakbrook and Meriter claim that there was no negligence on their part. Alvarado, however, claims that if Oakbrook had performed a thorough inspection of the apartment, as it should have, then the firework would have been found. In his deposition, Alvarado's expert opines that industry practice is to conduct an adequate inspection before allowing employees and contractors onto the premises. He asserts that ordinary care requires a property manager to have a safety program which anticipates and addresses potential hazards:

Well, they have a big responsibility in their capacity of managing residential housing... . There's all kinds of things to be considered by a company that — that's in charge of managing property.... I could talk about that for hours, but the main idea is that you have to anticipate potential hazards and deal with them in some way. And having a hazardous material or hazardous item in an apartment is something that they're required to anticipate and have a plan and a program to deal with.³

¶ 22. This case is similar to Coffey, in which this court concluded that a full trial should precede a determination that policy considerations preclude liability based on a negligent inspection. Coffey, 74 Wis. 2d at 543. In that case, a tenant suffered losses as the result of a fire at its leased premises. The tenant sued a building inspector and the City of Milwaukee claiming that they were negligent because the standpipes necessary to furnish the water to fight fire at the leased premises were defective and had not been properly inspected.

¶ 23. In examining whether public policy considerations should preclude liability, the Coffey court determined that a full factual resolution was necessary for a fair and complete evaluation of the policy considerations. Id. The court explained that the case involved the complex issue of municipal tort liability arising out of the alleged negligence of a building inspector in carrying out fire inspections. Id.

¶ 24. The court concluded that findings as to actual negligence, damage, and the causal relationship between them would be material and helpful in evaluating the public policy considerations. Id. Accordingly, it refused to preclude liability on public policy grounds prior to a full factual resolution.

¶ 25. Analogous to Coffey, this case involves facts that are not simple to ascertain. It addresses the tort liability of property managers arising out of the alleged negligence of an inspector in carrying out apartment inspections. Like Coffey, a sufficient factual basis is not presented here for considering, evaluating, and resolving the public policy issues involved. Findings as to actual negligence, damages and the causal relationship between them would be material and helpful in evaluating the public policy considerations.

¶ 26. The parties dispute the purpose of Oakbrook's inspection. Alvarado claims part of the inspection's purpose was safety, while Oakbrook contends the inspection was only to note needed repairs, cleaning, and security-deposit withholdings. A jury would hear testimony about what constitutes a proper inspection, and whether Oakbrook's inspection satisfied that obligation. Ultimately, a jury would have determined whether Oakbrook had instituted adequate safety measures, and whether Oakbrook was negligent for failing to instruct contractors about what procedure to follow when a dangerous object is found.

¶ 27. When the circuit court granted summary judgment in favor of Oakbrook and Meriter, it concluded that Oakbrook and Meriter did not owe Alvarado a duty to exercise ordinary care. However, everyone owes a duty of ordinary care to all persons. The effect of the circuit court's summary judgment was to limit the imposition of liability. Bowen, 183 Wis. 2d at 645; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183, 77 N.W.2d 397 (1956) ("whenever a court holds that a certain act does not constitute negligence because there was no duty owed by the actor to the injured party, although the act complained of caused the injury, such court is making a policy determination").

¶ 28. Likewise, albeit with a different rationale, the court of appeals limited liability by applying public policy factors. Neither the court of appeals nor the circuit court had the benefit of a full presentation of facts or a jury's verdict on negligence before limiting liability. Because there remain genuine issues of material fact, summary judgment was erroneously granted.

¶ 29. Summary judgment is uncommon in negligence actions, "because the court 'must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that [the defendants] failed to exercise ordinary care.'" Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ 2, 241 Wis. 2d 804, 623 N.W.2d 751 (citations omitted). The concept of negligence is peculiarly elusive, and requires the trier of fact to pass upon the reasonableness of the conduct in light of all the circumstances, " 'even where historical facts are concededly undisputed.'" Id. Ordinarily, this is not a decision for the court.

¶ 30. In sum, we determine that there remain genuine issues of material. fact. Here, public policy factors limiting liability should be considered only after a full resolution of the facts at trial. The court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

¶ 31. JON E WILCOX, J., did not participate.

1 Alvarado v. Sersch, 2002 WI App 227, 257 Wis. 2d 752, 652 N.W.2d 109 (affirming a judgment of the circuit court for Dane County, Angela B. Bartell, Judge).

2 In Gritzner this court aptly noted the confusion as follows:

As the defendant notes, some Wisconsin cases have examined liability limitations in terms of duty. See Estate of Becker v. Olson, 218 Wis. 2d 12, 579 N.W.2d 810 (Ct. App. 1998); Zelco v. Integrity Mut. Ins. Co., 190 Wis. 2d 74, 527 N.W.2d 357 (Ct. App. 1994); Erickson v. Prudential Property and Cas. Ins. Co., 166 Wis. 2d 82, 479 N.W.2d 552 (Ct. App. 1991). This formulation of the analysis is incorrect under Wisconsin law. In Wisconsin, everyone has a duty to act with reasonable care. Liability for breach of that duty is limited on public policy grounds. See Rockweit v. Senecal, 197 Wis. 2d 409, 425, 541 N.W.2d 742 (1995) (explaining that although some cases have denied liability on the basis that an actor had no "duty" to the injured party, the decision to deny liability is essentially one of public policy and not duty or causation). See also Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 644-45, 517 N.W.2d 432 (1994)(explaining that in deciding whether to impose liability for negligence, Wisconsin courts use a public policy formulation rather than a foreseeability or duty formulation) (citing Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183, 77 N.W.2d 397 (1956)); Schuster v. Altenberg, 144 Wis. 2d 223, 266, 424 N.W.2d 159 (1988) (Steinmetz, J., concurring)(noting that Wisconsin has a distinct approach to negligence under which liability is limited through policy considerations after the elements of duty and causation have been established);Klassa, 273 Wis. at 183 ("Whenever a court holds that a certain act does not constitute negligence because there was no duty owed by the actor to the injured party, although the act complained of caused the injury, such court is making a policy determination.").

Gritzner v. Michael R., 2000 WI 68, ¶ 24 n.4, 235 Wis. 2d 781, 611 N.W.2d 906.

3 Deposition testimony of Frank Burg, EE., September 29, 2000, p. 34.