Behrendt v. Gulf Underwriters Insurance

SHIRLEY S. ABRAHAMSON, C.J.

¶ 44. {concurring). I join the majority opinion. I write separately to address the issues raised in Justice Roggensack's concurring opinion.

¶ 45. Negligence law has evolved over the centuries and continues to evolve. No one has said that negligence law is easy to understand and apply or that *647all of our cases fit together altogether comfortably and without any tension. Any attempt to synthesize our case law should be applauded.

¶ 46. But the problem with the concurrence, as I see it, is that it tries to make things simpler than they are and is therefore misleading. To quote Albert Einstein, "everything should be made as simple as possible but not simpler."

¶ 47. Justice Roggensack's concurrence essentially argues that the negligence analysis in Wisconsin differs depending on whether a defendant's alleged negligence is viewed as a negligent act or a negligent failure to act. The distinction between a negligence claim arising "from an allegation of a failure to act" and "a claim asserting that the act in question was negligently performed" is central to the argument set forth in the concurrence.1

¶ 48. The concurrence concludes that when a defendant's alleged negligence is viewed as an omission rather than an affirmative act, the court must first determine whether the defendant's general duty to exercise reasonable and ordinary care implied a more specific duty to perform the act that was omitted.2 Furthermore, if the court determines that the defendant's general duty to exercise reasonable and *648ordinary care did not imply a specific duty to perform the omitted act, the defendant as a matter of law cannot be negligent.3

¶ 49. The concurrence applies a different analysis when a defendant's alleged negligence is viewed as an affirmative act negligently performed or undertaken. The concurrence asserts that under these circumstances, the question of negligence simply is whether the defendant exercised ordinary care under the circumstances when performing or undertaking the act.4 No time need be spent, according to the concurrence, analyzing whether the defendant's general duty to exercise reasonable and ordinary care implied a more specific duty to engage (or to refrain from engaging) in any particular conduct.

¶ 50. There are three essential problems with the concurring opinion's analysis.

¶ 51. First, attempts to distinguish between a negligent act (misfeasance) and a negligent omission (nonfeasance) have a long history in the law, and the distinction is generally recognized as a tenuous and misleading one. The concurrence is a throwback to earlier but not better days.

¶ 52. Second, Justice Roggensack's summary of the Wisconsin negligence cases law is incorrect. The *649decisions of this court set forth a unified negligence standard, applicable to all conduct, whether classified as an act or omission. The cases show that the question of negligence is whether the defendant's conduct (be it an act or omission) was consistent with the standard of reasonable and ordinary care. The cases also show that when a defendant's alleged negligence is viewed as an omission, Wisconsin's negligence standard does not require a determination whether the defendant had a duty under the circumstances to perform the omitted act. See also Wis JI — Civil 1005 (titled "Negligence: Defined"), which states that "[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."5

*650¶ 53. Third, Justice Roggensack's concurring opinion misinterprets not only the Wisconsin case law *651but also the Restatement (Third) of Torts: Liability for Physical Harm (Proposed Final Draft No. 1, 2005), an authority from which both the majority opinion and Justice Roggensack's concurrence seek guidance. The concurrence erroneously interprets the Restatement (Third) as supporting the concurring opinion's view that whenever the defendant's negligence consists of an omission rather than an act, the inquiry must be whether the defendant had an affirmative duty to perform the act that was omitted. Contrary to the concurrence, the Restatement (Third) recognizes that whenever the entire course of a person's conduct has created a risk of physical harm, the person is negligent if — by act or omission alike — the person fails to exercise reasonable and ordinary care.

I

¶ 54. The distinction between misfeasance (a negligent act) and nonfeasance (a negligent omission) has a long history in tort law, and the tenuous and misleading nature of the distinction between the two has been *652frequently pointed out.6 A negligent omission may be viewed as nonfeasance but also may be viewed as active negligence when the whole venture or enterprise is considered.7 "[N]o rule has been formulated to prescribe whether courts are to characterize conduct as affirmative action with an embedded omission or as simple nonaction."8

¶ 55. Indeed, Justice Roggensack's concurrence itself acknowledges that a defendant's negligence often may be "characterized as either a failure to act or as an act negligently performed, depending on the lens that the author of the opinion applies."9 Thus the analysis in the concurrence resting on the difference between action and omission rests on quicksand.

*653II

¶ 56. The decisions of this court state a unified negligence standard applicable to conduct, whether characterized as an act or an omission. This court has stated the negligence standard as follows: "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."10 This standard requires a determination whether a defendant's conduct (be it action or omission) represents a failure to exercise reasonable and ordinary care under the circumstances, that is, whether a reasonable person in the defendant's position would have recognized the defendant's conduct as creating an unreasonable risk of injury or damage to a person or property.

¶ 57. This negligence standard, applicable equally to acts and omissions, has been stated time and again in the cases, dating back to 1931.11

*654¶ 58. A recent line of cases drives home the point that even when a defendant's alleged negligence is viewed as an omission, Wisconsin's negligence standard requires a determination of whether the defendant's conduct comported with the standard of reasonable and ordinary care under the circumstances, rather than a *655determination whether the defendant had a duty under the circumstances to perform an act that was omitted. The relevant decisions are Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995), Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906, and Nichols v. Progressive Northern Insurance Co., 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220. These three cases show that the negligence standard in Wisconsin applies to allegedly negligent omissions as it does to allegedly negligent acts.

¶ 59. In Rockweit, defendant Ann Tynan spent the night at the same campground as 18-month-old Anthony Rockweit, who was at the campground with his parents. The campground had a communal fire pit. Tynan joined Anthony's family around the fire pit but otherwise had no connection to the fire or the pit. "Tynan did not maintain the fire pit in any manner, nor provide any necessary materials to fuel it at any time during her visit."12 Tynan's only connection to the fire pit was that she sat beside it, socializing with other persons including Anthony's family.

¶ 60. Three individuals remained beside the fire pit when the evening reached its end: Tynan, Anthony's father, and another relative of Anthony. These three people went to bed without extinguishing the fire's smoldering embers. Anthony later woke up and slid into the fire pit, sustaining serious injuries.

¶ 61. By a guardian, Anthony sued numerous people, including Tynan and the other two people who were around the fire pit at the end of the evening. The jury found that Tynan was causally negligent and assigned her liability for 3% of Anthony's injuries.

*656¶ 62. On appeal, Tynan argued that "she did not have a duty to Anthony to extinguish the fire because Wisconsin law does not impose a duty to assist or preserve a person from a risk of injury or a hazardous situation created by another."13

¶ 63. The court of appeals classified Tynan's conduct as an affirmative act, namely "negligent management or control of a fire."14 It affirmed the verdict against Tynan on that basis.

¶ 64. This court agreed with Tynan that the case was "a case of inaction."15 It rejected the court of appeals' "suggestion that by socializing around the fire pit that evening, Tynan assumed an affirmative obligation to extinguish the embers."16

¶ 65. Nevertheless, this court also found "Tynan's argument that she cannot be held liable for Anthony's injuries because Wisconsin law does not impose a duty upon her to act to be without merit."17 The Rockweit court stated that "Tynan did owe Anthony a common law duty, the duty to exercise ordinary care."18 The *657court then turned its attention to the question whether Tynan breached that duty by failing to put out the fire.19

¶ 66. In the Gritzner case, defendant Roger Buhner's girlfriend's son, Michael, sexually abused the Gritzners' daughter while she was in Buhner's home. Buhner allegedly knew that Michael had a propensity to *658sexually abuse other children. Bubner also allegedly failed to warn the Gritzners about Michael's propensity or to supervise Michael while Michael was with the Gritzners' daughter. The Gritzners filed a complaint against Bubner claiming (1) negligent failure to warn the Gritzners that Michael had a propensity toward sexual abuse; and (2) negligent failure to control Michael.20

¶ 67. The Gritzners' negligence claims were focused on Bubner's failures to act rather than on Bubner's affirmative actions. The lead opinion acknowledged that "[t]he Gritzners' claims against Bubner [were] based on Bubner's duty to take certain affirmative actions — to warn [the Gritzners] about Michael and to control Michael's behavior."21

¶ 68. Bubner "frame[d] his response to the Gritzners' claims under the rules governing affirmative duties to act in the Restatement (Second) of Torts . . . ,"22 Bubner's approach apparently worked at the circuit court, which dismissed the Gritzners' claims on the ground that "Bubner had no legal duty to warn the Gritzners about Michael's alleged propensities or to control Michael's conduct."23

¶ 69. This court, however, did not decide the case by determining whether Bubner had a duty to perform the acts that he allegedly had failed to perform. The lead opinion stated that "the crucial question in evaluating the Gritzners' claims is not whether Bubner had any 'duty' to take affirmative actions but whether Bubner's alleged failure to take certain actions was *659consistent with his duty to exercise a reasonable degree of care."24 Citing the lead opinion, the concurring/ majority opinion similarly stated that "[a] person is not using ordinary care and is negligent if the person fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury to another."25

¶ 70. The Gritzner court remanded the cause for a full factual resolution of the Gritzners' negligence claims.26 The lead opinion would have dismissed the Gritzners' failure-to-warn claim but not on the ground that Bubner had no duty to warn the Gritzners and was not negligent. The lead opinion would have dismissed the failure-to-warn claim on the basis of public policy considerations.27

*660¶ 71. Justice Roggensack's concurrence cannot be reconciled with Rockweit or Gritzner. The concurrence contends that when a defendant's alleged negligence is viewed as an omission rather than an act, the court must determine whether the defendant had a duty under the circumstances to perform the act that was omitted. This court, however, did not decide Rockweit by determining whether Tynan had a duty to extinguish the camp fire and did not decide Gritzner by determining whether Bubner had a duty to warn the Gritzners or to control Michael. The Rockweit court found "Tynan's argument that she cannot be held liable for Anthony's injuries because Wisconsin law does not impose a duty upon her to act to be without merit."28 The Gritzner court concluded that "the crucial question in evaluating the Gritzners' claims is not whether Bubner had any 'duty' to take affirmative actions but whether Bubner's alleged failure to take certain actions was consistent with his duty to exercise a reasonable degree of care."29

¶ 72. In Nichols, this court affirmed the vitality of Rockweit and Gritzner. The Nichols court was confronted with a decision of the court of appeals suggesting that in Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, 291 Wis. 2d 283, 717 N.W.2d 17 — a decision authored by Justice Roggensack — this court had "overturned or backed away from" Rockweit and Gritzner.:30 The Nichols court made clear that "Hoida was not intended to overturn prior case law" and that "Gritzner and Rockweit are still good law in Wisconsin."31 It *661stated that "[n]othing in Hoida was intended to overrule or change the principles of law expressed in Gritzner and Rockweit."32

¶ 73. The Nichols opinion confirmed that the negligence standard applied in Rockweit and Gritzner was correct. It concluded 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."33

¶ 74. Justice Roggensack's concurrence is no more consistent with Nichols than it is with Rockweit or Gritzner. The concurrence relies in large part upon Justice Roggensack's Hoida decision to set forth an argument about the negligence standard that contradicts the analysis in Rockweit and Gritzner.34 Yet Nichols explicitly rejects the idea that Justice Roggensack's Hoida decision changed the law of negligence as it is explained in the Rockweit and Gritzner decisions. Furthermore, Nichols concludes, in direct contradiction to Justice Roggensack's concurrence, that in a negligence case, a defendant's conduct should not be analyzed in terms of whether the defendant had a duty to perform a specific act.

¶ 75. The Nichols case was decided just last year. Justice Crooks's majority opinion was joined by Justice Roggensack, as well as by Justices Bradley, Prosser, and *662Ziegler.35 One wonders what could have happened in the course of one year to make Justice Roggensack suddenly doubt the wisdom of Justice Crooks's careful discussion.

Ill

¶ 76. The majority opinion in the present case seeks guidance from § 7 the Restatement (Third) of Torts: Liability for Physical Harm (Proposed Final Draft No. 1, 2005).36 Justice Roggensack's concurrence does the same.37

¶ 77. Section 7(a) of the Restatement (Third) of Torts explains the circumstances under which a person is subject to the general duty to exercise reasonable and ordinary care. It provides in full as follows:

Aji actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.

¶ 78. A related provision, § 37, "states the obverse" of § 7(a): In the absence of conduct creating a risk of physical harm to another, an actor ordinary has no duty of care to another.38 Section 37 provides in full as follows:

An actor whose conduct has not created a risk of physical harm to another has no duty of care to the *663other unless a court determines that one of the affirmative duties provided in §§ 38-44 is applicable.

¶ 79. Under the Restatement (Third) approach, when the defendant's conduct has created a risk of physical harm to another, the defendant must exercise reasonable and ordinary care under the circumstances, and the question of negligence is whether the defendant has exercised such care.39 When the defendant's conduct has not created a risk of physical harm to another, the question of the defendant's negligence turns on whether the defendant was subject to (and breached) a more specific affirmative duty to act.

¶ 80. Justice Roggensack's concurrence apparently concludes that under the Restatement (Third), a person is required to exercise reasonable and ordinary care only when performing affirmative acts. The concurrence states that "[sjection 7's discussion of duty is limited to affirmative acts; it does not address duty based on an alleged failure to act."40 The implication seems to be that the Restatement (Third) supports the concurring opinion's view that when a defendant's alleged negligence is viewed as an omission rather than an act, the inquiry should be whether the defendant had an affirmative duty to act under the circumstances *664rather than whether the defendant exercised reasonable and ordinary care under the circumstances.

¶ 81. The concurrence misinterprets the approach of §§ 7 and 37 of the Restatement (Third).

¶ 82. Section 7(a) of the Restatement (Third) states that an actor41 is to exercise reasonable and ordinary care when the actor's "conduct" creates a risk of physical harm. The meaning of the word "conduct" is broad. A defendant's "conduct" is limited neither to the defendant's affirmative acts nor to the particular conduct constituting the focal point of a negligence claim against the defendant.

¶ 83. This point is made clear by Restatement (Third) of Torts § 37 cmt. c., which explains how a court may distinguish between cases in which the defendant is to exercise reasonable and ordinary care under § 7(a) and cases in which the defendant's conduct must be analyzed in terms of more specific affirmative duties to act under §§ 38-44. The comment states that "[t]he proper question is not whether an actor's specific failure to exercise reasonable care is an error of commission or omission. Instead, it is whether the actor's entire conduct created a risk of physical harm."42 In other words, the comment explicitly recognizes that in light of a person's entire course of conduct, the person *665may be subject to (and may breach) the general duty to exercise reasonable and ordinary care in his or her omissions as well as acts.

¶ 84. The same comment provides specific examples of cases in which a defendant's alleged negligence may be viewed as an omission yet the defendant's conduct must be analyzed in terms of whether the defendant exercised reasonable and ordinary care under § 7(a). The comment states that "a failure to employ an automobile's brakes or a failure to warn about a latent danger in one's product is not a case of nonfeasance governed by the rules [in §§ 38-44 relating to specific affirmative duties to act], because in those cases the entirety of the actor's conduct (driving an automobile or selling a product) created a risk of harm. This is so even though the specific conduct alleged to be a breach of the duty of reasonable care was itself an omission."43

¶ 85. My point here is not that Wisconsin's law of negligence is consistent in all respects with the Restatement (Third). It is not.44 My point is rather that the Restatement (Third)'s approach does not turn on *666whether the defendant engaged in an act or omission. The Restatement (Third) instead recognizes that whenever the entire course of a person's conduct has created a risk of physical harm, the person is negligent if — by act or omission alike — the person fails to exercise reasonable and ordinary care.

¶ 86. Justice Roggensack's concurrence, distinguishing between an act and an omission, is ostensibly offered "to assist the readers of [this court's] opinions as they step into the thicket of a negligence claim in Wisconsin[.]"45 From my vantage point the concurrence unfortunately makes the thicket thicker.

¶ 87. For the reasons set forth, I write separately.

Justice Roggensack's concurrence, ¶ 88.

See, e.g., Justice Roggensack's concurrence, ¶ 100 (stating that because Hoida v. M & I Midstate Bank, 2006 WI 69, 291 Wis. 2d 283, 717 N.W.2d 17, "turned on whether [M&I Midstate Bank's] failure to take certain actions was negligent by omission," the question presented "was whether M&I's duty of ordinary care under the circumstances required M&I to take the actions that Hoida claimed M&I had a duty to undertake" (emphasis in original)).

See Justice Roggensack's concurrence, ¶ 106 ("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 because all of the elements of a negligence claim will not have been proven.").

See, e.g., Justice Roggensack's concurrence, ¶ 117 ("Silvan acted affirmatively when it created the side job policy. Accordingly, Silvan's policy must have evidenced the exercise of reasonable care, which we have also characterized as ordinary care under the circumstances!!.]" (internal citations omitted)).

Indeed, the Reporters' Note to § 37 of the Restatement (Third) of Torts cites Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995), for the proposition that Wisconsin "does not employ no-duty rules [but] nevertheless reaches the same result by employing public policy to avoid liability for those whose acts played no rule in creating risk to another." Restatement (Third) of Torts: Liability for Physical Harm § 37, at 719 (Reporters' Note) (Proposed Final Draft No. 1, 2005).

The concept of duty in tort law is in "turmoil." W Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal. L. Rev. 671, 671 (2008). Courts and academics have offered varying accounts of the proper role for duty in contemporary tort law. See, e.g., Fazzolari v. Portland School Dist., 734 P.2d 1326, 1331 (Or. 1987) ("[D]uty plays an affirmative role when an injured plaintiff invokes obligations arising from a defendant's particular status or relationships, or from legislation, beyond the generalized standards that the common law of negligence imposes on persons at large. In cases based solely on common-law negligence, 'no-duty' is a defensive argument asking a court to limit *650the reach of these generalized standards as a matter of law."); Coburn v. City of Tucson, 691 P.2d 1078 (Ariz. 1984) ("Many tort decisions exhibit an unfortunate tendency to confuse the concepts of'duty' and standard of conduct and to argue that the city is, or is not, under a duty to post warning signs, remove obstructions from the road or sidewalks, install traffic control sidewalks, install traffic control devices, fix potholes and the like. We believe that an attempt to equate the concept of 'duty' with such specific details of conduct is unwise. Attempting to define or evaluate conduct in terms of duty tends to rigidify the concept of negligence — a concept which, by definition, must vary from case to case, depending upon the relationship of the parties and the facts of each case." (internal citations omitted)); Dilan A. Esper & Gregory C. Keating, Abusing "Duty", 79 S. Cal. L. Rev. 265, 268 (2006) ("The role of 'duty' doctrine is to fix the legal standard applicable to the defendant's conduct. Duty rulings must therefore he categorical. They must specify the general standard of care owed by some class of potential injurers ...."); John C.P Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1744 (1988) (concluding that a proper account of the concept of duty in the law of negligence "must conceive of duty as relational, that is, as owed by specific defendants or classes of defendants to specific plaintiffs or classes of plaintiffs, rather than by each individual to the word at large[,]... must conceive of duty as relationship-sensitive,... [and] must conceive of duty as a non-instrumental (or deontological) concept by taking serious the idea that 'duty' carries with it a notion of obligatoiy force"); W Page Keeton et al., Prosser and Keeton on Torts § 53, at 356 (5th ed. 1984) ("It is better to reserve 'duty' for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation. In other words, 'duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of the apparent risk.").

*651The Restatement (Third) of Torts explains the role of duty as follows: "In most cases, courts ... need not refer to duty on a case-by-case basis. Nevertheless, in some categories of cases, reasons of principle or policy dictate that liability should not be imposed. In these cases, courts use the rubric of duty to apply general categorical rules withholding liability.... No-duty rules are appropriate only when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases." Restatement (Third) of Torts: Liability for Physical Harm § 7 cmt. a, at 90-91 (Proposed Final Draft No. 1, 2005).

For a discussion of the concept of duty in a case involving private nuisance, negligence and a possessor of land, see Hocking v. City of Dodgeville, 2009 WI 70, ¶¶ _-_, _ Wis. 2d _, 768 N.W.2d 552 (Abrahamson, C.J., concurring).

See, e.g., Prosser and Keeton on Torts § 56, at 373-75 (5th ed. 1984); Restatement (Third) of Torts: Liability for Physical Harm § 37 cmt. c, at 711, Reporters' Note, cmt. a, at 718, 720-22 (Proposed Final Draft No. 1, 2005).

See, e.g., Fleming James, Jr., Scope of Duty in Negligence Cases, 47 N.W. U. L. Rev. 778, 800-09 (1952-53); Restatement (Third) of Torts: Liability for Physical Harm § 37 cmt. c, at 711 (Proposed Final Draft No. 1, 2005) ("The proper question is not whether an actor's specific failure to exercise reasonable care is an error of commission or omission. Instead, it is whether the actor's entire conduct created a risk of physical harm."). See also Hocking, 2009 WI 70, ¶ 31 (Abrahamson, C.J., concurring).

2 Dan B. Dobbs, The Law of Torts § 315, at 855 (2001).

Justice Roggensack's concurrence, ¶ 88.

The concurrence struggles to determine which "lens" the majority opinion uses in the present case. The concurrence observes that "[t]he negligence claim Behrendt pled can be viewed as being based both on an affirmative act negligently undertaken and on a failure to act." Justice Roggensack's concurrence, ¶ 112. The concurrence then spends two paragraphs analyzing the majority opinion before concluding that the majority opinion "presumes" that Behrendt alleges the *653negligent performance of an affirmative act rather than a negligent omission. See Justice Roggensack's concurrence, ¶¶ 113-114.

Alvarado v. Sersch, 2003 WI 55, ¶ 14, 262 Wis. 2d 74, 662 N.W.2d 350 (emphasis added; quotation marks & citation omitted).

See, e.g., Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, ¶ 22, 611 N.W.2d 906 (Wilcox, J., lead op.) ("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." (emphasis added; quoting Wis JI — Civil 1005)); id., 235 Wis. 2d 781, ¶ 76 (Abrahamson, C.J., concurring/majority) ("A person is not using ordinary care and is negligent if the person fails to do *654something that a reasonable person would recognize as creating an unreasonable risk of injury to another." (emphasis added)); Rockweit v. Senecal, 197 Wis. 2d 409, 424, 541 N.W.2d 742 (1995) ("A person fails to exercise ordinary care when, without intending to do any harm, he or she does something or fails to do something under circumstances in which a reasonable person would foresee that by his or her action or failure to act, he or she will subject a person or property to an unreasonable risk of injury or damage." (emphasis added; citation omitted)); Shannon v. Shannon, 150 Wis. 2d 434, 443-44, 442 N.W.2d 25 (1989) ("A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another, to an unreasonable risk of injury or damage." (emphasis added; citation omitted)); Peters v. Holiday Inns, Inc., 89 Wis. 2d 115, 122-23, 278 N.W.2d 208 (1979) ("A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another to an unreasonable risk of injury or damage." (emphasis added; quotation marks and citation omitted)); Osborne v. Montgomery, 203 Wis. 223, 242, 234 N.W. 372 (1931) ("Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinary prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm." (emphasis added)).

Rockweit, 197 Wis. 2d at 415.

Id. at 421.

Id.

Id.

Id.

Id. at 423.

Id.

Justice Wilcox's Rockweit opinion is an opinion of all the justices of this court insofar as it concludes that under Wisconsin law Tynan owed a common-law duty to everyone to exercise ordinary care and rejects Tynan's argument that she could not be liable for Anthony's injuries because Wisconsin law did not impose a duty upon her to act. Justice Steinmetz's concurring opinion (joined by Chief Justice Day) departed from Justice Wilcox's opinion only insofar as Justice Wilcox's opinion concluded that credible evidence supported the jury's finding of *657negligence. Justice Steinmetz concluded that the standard of due care was not violated. See Rockweit, 197 Wis. 2d at 433 (Steinmetz, J., concurring). Justice Steinmetz's opinion refers to Justice Wilcox's opinion as the majority opinion. See id. My concurring opinion in Rockweit (joined by Justice Bradley) addresses and discredits "the defendant's claim that Wisconsin law does not impose a duty upon one person to actively assist or preserve a person from a risk of injury created by another.'" Rockweit, 197 Wis. 2d at 429. My concurring opinion also refers to Justice Wilcox's opinion as the majority opinion. See Rockweit, 197 Wis. 2d at 430, 431 n.2, 432 (Abrahamson, J., concurring).

Rockweit, 197 Wis. 2d at 423.

This court sustained the jury's finding that Tynan had breached her duty to exercise ordinary care and was negligent. The court concluded that the jury's finding was supported by credible evidence in the circuit court record. See Rockweit, 197 Wis. 2d at 424.

The Rockweit court went on to conclude on the basis of public policy considerations that Tynan should not be liable to Anthony despite her causal negligence. See Rockweit, 197 Wis. 2d at 425-29. The court reasoned that Anthony's injuries were wholly out of proportion to Tynan's culpability and were too remote from Tynan's negligence. It also reasoned that there would be no sensible stopping point if liability were imposed upon someone in Tynan's position.

"[E]ven when a duty of care exists and the other elements of negligence have been established, public policy considerations may preclude liability. However, Wisconsin courts address public policy concerns directly, rather than asking whether the defendant owed a 'duty' to the particular victim." Gritzner, 235 Wis. 2d 781, ¶ 24 (Wilcox, J., lead opinion) (footnote omitted).

Gritzner, 235 Wis. 2d 781, ¶ 2 (Wilcox, J., lead opinion).

Id., ¶ 21 (Wilcox, J., lead opinion).

Id.

Id., ¶ 13 (Wilcox, J., lead opinion).

Jc?., ¶ 25 (Wilcox, J., lead opinion).

The Gritzner lead opinion also explained that although this court has considered and relied upon the provisions in the Restatement relating to affirmative duties to act, the court "has not expressly adopted this framework." Gritzner, 235 Wis. 2d 781, ¶ 22 (Wilcox, J., lead opinion). The lead opinion stated that "instead" of the Restatement provisions, "the general framework governing the duty of care in Wisconsin negligence actions is that: 'A person is negligent when [he or she] fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. 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.'" Gritzner, 235 Wis. 2d 781, ¶ 22 (Wilcox, J., lead opinion) (quoting Wis JI — Civil 1005; brackets in Gritzner).

Gritzner, 235 Wis. 2d 781, ¶ 76 (Abrahamson, C.J., concur ring/maj ority).

Id., ¶¶ 76, 86 (Abrahamson, C.J., concurring/majority).

Id., ¶¶ 28-44, 70 (Wilcox, J., lead opinion).

Rockweit, 197 Wis. 2d at 423.

Gritzner, 235 Wis. 2d 781, ¶ 25 (Wilcox, J., lead opinion).

Nichols, 308 Wis. 2d 17, ¶ 34.

Id., ¶¶ 34, 47.

Id., ¶ 47.

Id., ¶ 45 (quoting Gritzner, 235 Wis. 2d 781, ¶ 24 (Wilcox, J., lead opinion)).

See Justice Roggensack's concurrence, ¶¶ 101-102, 105, 108 (relying upon Hoida).

The concurring opinion, which I authored and which Justice Butler joined, did not object to the majority opinion’s discussion of Rockweit and Gritzner or its general discussion of the negligence standard in Wisconsin.

See majority op., ¶¶ 19-20, 26.

Justice Roggensack's concurrence, ¶ 114.

Restatement (Third) of Torts: Liability for Physical Harm (Proposed Final Draft No. 1, 2005) § 7 cmt. 1, at 99.

See Restatement (Third) of Torts: Liability for Physical Harm § 3, at 34 (Proposed Final Draft No. 1, 2005) ("A person acts negligently if the person does not exercise reasonable care under all the circumstances.”).

See Justice Roggensack's concurrence, ¶ 114

The concurrence also relies upon the majority opinion's use of § 7 of the Restatement (Third) as evidence that the majority opinion views the defendant's alleged negligence in the present case as consisting of an affirmative act. See Justice Roggensack's concurrence, ¶¶ 113-115.

The word "actor" in § 7(a) should not be viewed as limiting § 7(a) to persons who take affirmative acts. The Restatement (Third) itself explains that it employs a "convention" of "referring to the person whose actions or conduct may be subject to tort liability as the 'actor'[,]" even when "the actor may not have engaged in any action or conduct relevant to the harm that occurred." Restatement (Third) of Torts: Liability for Physical Harm at 709 (Proposed Final Draft No. 1, 2005).

Restatement (Third) of Torts: Liability for Physical Harm § 37 cmt. c, at 711 (Proposed Final Draft No. 1, 2005).

Id.

The Reporters' Note to § 37 of the Restatement (Third), cites the Rockweit decision for the proposition that Wisconsin "does not employ no-duty rules [but] nevertheless reaches the same result by employing public policy to avoid liability for those whose acts played no role in creating risk to another." Restatement (Third) of Torts: Liability for Physical Harm § 37, at 719 (Reporters' Note) (Proposed Final Draft No. 1, 2005).

This court does not in the present case adopt any provisions of the Restatement (Third) of Torts: Liability for Physical Harm (Proposed Final Draft No. 1, 2005). The majority opinion explains that this court has "previously noted, without finding it necessary to adopt, helpful language from sections in the *666Restatements where it provides further support for the rationale for a holding." Majority op., ¶ 19 n.7.

Justice Roggensack's concurrence, ¶ 88.