Howard v. Mt. Sinai Hospital, Inc.

219 N.W.2d 576, 217 N.W.2d 383, 63 Wis. 2d 515, 1974 Wisc. LEXIS 1647

• Court: Wisconsin Supreme Court
• Decided: May 8, 1974
• Docket: 271
• Status: Published

Opinions

Wilkie, J.

The sole issue on this appeal relates to the element of damages: whether the present fear or phobia that the plaintiff will develop cancer in the future is compensable.

Negligence is conceded. The sole question then is one of causation. The long-standing rule on whether a particular claim of damages is compensable is:

“. . . negligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that the defendant is liable for the plaintiff’s injuries. The determination to not impose liability [because of remoteness of cause] in instances where a negligent act has been committed and the act is a ‘substantial factor’ in causing the injury rests upon considerations of public policy.” ¹

Applying this rule, we have held a defendant not liable for injuries sustained solely by fear for another’s safety without physical impact.² Again on public policy grounds, we have held a plaintiff, hit on the arm by a flying object, not liable for his contributory negligence in driving with his arm out the window.³ In these and other cases,⁴ on public policy grounds, we have refused to impose liability where such imposition of liability would offend sound considerations of public policy.⁵ Today in the Reshan Case ⁶ again we have refused to impose liability, on public policy grounds, where a conspicuously negligent northbound car on 1-94 in Racine county went out of control and moved across the median strip hitting a car which was proceeding southerly on 1-94 and the only negligence of the driver of the southbound car was with respect to maintaining an improper lookout for objects in the median strip.

In these cases these public policy considerations are regarded as an element of the legal cause, although not a part of the determinations of cause in fact, which this court refers to as “substantial factor.” ⁷

In this case, although there is no question about there being in fact a fear of future cancer, the claim of damages (by way of cancer) is so remote and is so out of proportion to the culpability of the tort-feasor that, as a matter of public policy, we conclude that the defendants are not to be held liable for this element of damages.

The three cases cited by plaintiff from other jurisdictions ⁸ in support of her contention that this element of damage is compensable are not in point because as we have stated, the prevailing rule in Wisconsin is that, even though the fear or phobia exists in fact, the defendants are not held accountable where, as here, public policy compels this court, because of the remoteness of this element of damage, to excuse defendants from liability.

Since we have ruled here that the award of damages included a sum for the plaintiff’s present fear of future cancer which we have found not compensable, we must reverse the judgment and remand for a retrial on the issue of damages. Appellants seek a new trial on all issues. While various evidentiary rulings during the conduct of the trial are challenged, they appear to relate primarily to the manner in which the plaintiff sought to establish the existence of the present fear of a future harm. With our holding here based on the public policy considerations involved in disallowing recovery for her present anxiety as to a future consequence, we find no reason or basis for ordering a new trial on other than the issue of damages. Therefore, the judgment is set aside on the issue of damages only, and a new trial in the interest of justice is ordered on that issue alone.

By the Court. — Judgment affirmed in part; reversed in part; and cause remanded for proceedings not inconsistent with this opinion.

1 Hass v. Chicago & North Western Ry. Co. (1970), 48 Wis. 2d 321, 326, 179 N. W. 2d 885, quoting Colla v. Mandella (1957), 1 Wis. 2d 594, 598, 599, 85 N. W. 2d 345. See also: Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W. 2d 29; Osborne v. Montgomery (1931), 203 Wis. 223, 234 N. W. 372.

2 Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 77 N. W. 2d 397.

3 Schilling v. Stockel (1965), 26 Wis. 2d 525, 133 N. W. 2d 335.

4 See: Longberg v. H. L. Green Co. (1962), 15 Wis. 2d 505, 516, 113 N. W. 2d 129, 114 N. W. 2d 435; and Colla v. Mandella, supra, footnote 1, at pages 598, 599.

5 Hass v. Chicago & North Western Ry. Co., supra, footnote 1, at pages 326, 327, quoting Colla v. Mandella, supra, footnote 1, at pages 598, 599.

6 Reshan v. Harvey, post, p. 524, 217 N. W. 2d 302.

7 Colla v. Mandella, supra, footnote 1; Pfeifer v. Standard Gateway Theater, Inc., supra, footnote 1. See also: Campbell, Duty, Fault, and Legal Cause, 1938 Wis. L. Rev. 402.

8 Dempsey v. Hartley (D. C. Pa. 1951), 94 Fed. Supp. 918; Smith v. Railroad (1935), 87 N. H. 246, 177 Atl. 729; Ferrara v. Galluchio (1958), 6 N. Y. 2d 16, 176 N. Y. Supp. 2d 996, 152 N. E. 2d 249.