Behrendt v. Gulf Underwriters Insurance

PATIENCE DRAKE ROGGENSACK, J.

¶ 88. (concurring). I concur in the result reached by the majority opinion in regard to both claims made. I write only with regard to the negligence claim in order to point out the difficulty in assessing duty, and the scope of duty, under our negligence jurisprudence. Some of the difficulty is caused in part by our failing to be precise in our reasoning when a claim of negligence arises from an allegation of a failure to act, as distinguished from a claim asserting that the act in question was negligently performed. This difficulty is enhanced when the claim made could 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. And some of the difficulty occurs because our jurisprudence in this area continues to develop. Because the majority opinion does not address duty, and because I hope to assist the readers of our opinions as they step into the thicket of *667a negligence claim in Wisconsin, I write separately and respectfully concur in the majority opinion.

I. BACKGROUND

¶ 89. The context in which this negligence claim arose is carefully and correctly narrated in the majority opinion.1 Summarily stated, Kenneth J. Behrendt (Behrendt) alleges that Silvan Industries, Inc. (Silvan) was causally negligent for the injuries he sustained when a tank that he alleged had been manufactured at Silvan ten years earlier exploded. The tank was manufactured by Silvan employees as a "side job," i.e., a personal job, for the employees' personal use. At the time of its manufacture, Silvan had a policy that side jobs were permitted, but employees were not permitted to manufacture pressure vessels. In compliance with that policy, the tank that was manufactured at Silvan had holes cut in it before it left Silvan and was unusable as a pressure vessel at that time.

¶ 90. At some later date, the holes in the tank were plugged by a third party who was unaffiliated with Silvan, and a fixture was added so that the tank could be subjected to air pressurization. It was while the tank was pressurized that it exploded, injuring Behrendt.

¶ 91. Behrendt claimed that Silvan was negligent in "distributing" the tank; "in failing to issue proper and adequate warnings and instructions concerning the use" of the tank; and "in the manner in which it designed, manufactured [and] assembled" the tank.2 In his brief, Behrendt argues more generally, alleging that Silvan was negligent because it permitted side jobs where defective or dangerous items could be made.

*668¶ 92. The court of appeals affirmed the dismissal of Behrendt's negligence claim against Silvan. The court concluded that Silvan had no duty to Behrendt because his injuries, which arose from modification of the tank, were not foreseeable by Silvan.3 The majority opinion affirms the dismissal of the negligence claim because it concludes that Silvan's duty of ordinary care under the circumstances, with regard to its policy of permitting side jobs, was not breached.4 The majority opinion does not opine on the scope of Silvan's duty under the circumstances presented.

II. DISCUSSION

A. Standard of Review

¶ 93. Because the facts relating to the manufacture of the tank are undisputed, whether Silvan had a duty and the scope of that duty are questions of law, which we decide independently. Rolph v. EBI Cos., 159 Wis. 2d 518, 528, 464 N.W.2d 667 (1991) (citing Fitzgerald v. Ludwig, 41 Wis. 2d 635, 639, 165 N.W.2d 158 (1969)).

B. General Principles

¶ 94. A plaintiff seeking to recover on a claim of negligence must prove four elements: "(1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiffs injury, and (4) actual loss or damage *669resulting from the injury." Gritzner v. Michael R., 2000 WI 68, ¶ 19, 235 Wis. 2d 781, 611 N.W.2d 906 (citing Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 260, 580 N.W.2d 233 (1998); Rockweit v. Senecal, 197 Wis. 2d 409, 419, 541 N.W.2d 742 (1995)5 (citing Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531, 247 N.W.2d 132 (1976))).

¶ 95. In analyzing any negligence claim, it is necessary to remember that "[d]uty is still an important factor in determining whether an act is negligent." A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 484, 214 N.W.2d 764 (1974) (emphasis added). The concept that duty remains an element of a negligence claim is in danger of being obscured when we oversimplify duty, based on the assertion that this court has adopted the minority view in Palsgraf v. Long Island R. Co., 162 N.E. 99 (N.Y. 1928). See, e.g., Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶ 64, 291 Wis. 2d 283, 717 N.W.2d 17 (Bradley, J., dissenting).

¶ 96. Our adoption of the minority view in Palsgraf sometimes applies under the facts presented and *670sometimes it is a red herring that clouds the negligence analysis. In this regard, it is helpful to examine what the dissent in Palsgrafdid not conclude, as well as what it did conclude. First, the minority view in Palsgrafdid not eliminate the element of duty from a negligence claim. As Chief Justice Heffernan explained while asserting that the court had "expressly adopted the Palsgraf minority rationale," we examine duty when we are determining whether an act is negligent. A.E. Inv., 62 Wis. 2d at 483-84. It is only after "an act has been found to be negligent, [that] we no longer look to see if there was a duty to the one who was in fact injured." Id. at 484 (quoting Schilling v. Stockel, 26 Wis. 2d 525, 531, 133 N.W.2d 335 (1965)). Second, the dissent in Palsgraf did address the flow of the duty of ordinary care to others when a negligent act occurred. Palsgraf, 162 N.E. at 102 (Andrews, J., dissenting).

¶ 97. The minority rationale of Palsgraf never concludes or implies that duty is no longer an element of a negligence claim. To explain: Palsgraf arose from an affirmative act that was negligently performed, from which negligence Palsgraf claimed injury. In Palsgraf, two men were attempting to board a train that was in motion. Id. at 99. An employee of the railroad pushed one of the men from behind in order to assist him onto the train, and in so doing he caused the man to drop the package he was carrying. Id. The package fell onto the rails and exploded. Id. The shock of the explosion caused the scales on the railway platform to fall and to strike Palsgraf. Id.

¶ 98. Palsgraf sued, and the dissenting opinion in that New York case took issue with the denial of her claim. Id. at 102 (Andrews, J., dissenting). The dissent set the issue consistent with the description of duty in A.E. Investment when it said:

*671The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept — the breach of some duty owing to a particular person or to particular persons? Or, where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger?

Id. The focus of Palsgrafs dissent, as quoted above, and the focus of this court's use of Palsgraf, as explained in A.E. Investment, is on the range of persons to whom a negligent actor may be liable, after a negligent act has been found. A.E. Inv., 62 Wis. 2d at 484 (concluding that "[o]nce negligence is established, the defendant is liable for unforeseeable consequences as well as foreseeable ones[, and] he is liable to unforeseeable plaintiffs").

¶ 99. The Palsgraf decision arose from an affirmative act negligently undertaken and the question presented was whether Palsgrafs damages were "so connected with the negligence that the latter may be said to be the proximate cause of the former." Palsgraf, 162 N.E. at 103 (Andrews, J., dissenting). Stated otherwise, Palsgraf s dissent parsed to whom liability flows from a negligent act affirmatively undertaken. One could characterize the Palsgraf dissent's position as to whom a duty of ordinary care was owed when the negligent act occurred.

¶ 100. Hoida, by contrast with Palsgraf, turned on whether the lender's failure to take certain actions was negligent by omission. Hoida, 291 Wis. 2d 283, ¶ 17. Therefore, Hoida addressed whether the first element of a negligence claim, duty, had been alleged. Stated otherwise, the question presented was whether M&I's duty of ordinary care under the circumstances *672required M&I to take the actions that Hoida claimed M&I had a duty to undertake. Id. In Palsgraf, there was no question that the railroad employee acted and that his act of pushing the passenger onto the moving train was negligent. Palsgraf, 162 N.E. at 105 (Andrews, J., dissenting). The minority view in Palsgraf was concerned with how far liability for the negligent act flowed, not with whether there was negligence. Id. at 103.

¶ 101. While examining what acts the bank in Hoida was required to take, we explained that "one has a duty to exercise ordinary care under the circumstances." Hoida, 291 Wis. 2d 283, ¶ 30 (citing Gritzner, 235 Wis. 2d 781, ¶ 20). We noted that what acts are required when one exercises ordinary care will depend upon the circumstances under which the claimed duty to act arises. Id., ¶ 32 (citing Hatleberg v. Norwest Bank Wis., 2005 WI 109, ¶¶ 18-20, 283 Wis. 2d 234, 700 N.W.2d 15).

¶ 102. In Hatleberg, we also examined what acts a bank was required to take pursuant to its duty to exercise ordinary care under the circumstances. Hatleberg, 283 Wis. 2d 234, ¶ 3. We concluded that the bank was not negligent because it had no duty under the circumstances to review the trust document to ensure that it would effectively avoid taxes. Id. Hatleberg, like Hoida, involved an element of the claim of negligence, duty, which element was based on an alleged failure to act. Hatleberg did not involve an affirmative act that was negligently performed, as Palsgraf did.

¶ 103. In Baumeister v. Heritage Mutual Insurance Co., 2004 WI 148, 277 Wis. 2d 21, 690 N.W.2d 1, we examined whether certain acts were required in order to satisfy an architect's duty of ordinary care under the circumstances when the claim of negligence was based *673on a failure to act. Id., ¶ 18. Baumeister's conclusion turned on whether the architect's duty of ordinary care under the circumstances required him to take certain actions. Id. In so doing, Baumeister examined the duty element of a negligence claim. Id. It did not examine a negligently performed act and determine whether liability to Baumeister should flow from that act, as the dissent in Palsgraf did. Id.

¶ 104. We do not always address duty when a negligence claim is under review. For example, on numerous occasions we have chosen to assume that all four elements of a negligence claim are present, but nevertheless have precluded liability based on public policy factors. Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶¶ 3, 19, 308 Wis. 2d 17, 746 N.W.2d 220 (concluding that even if the court assumed that the Niesens had a duty to supervise the juveniles on their property, the Nichols' claim was denied on public policy grounds); Smaxwell v. Bayard, 2004 WI 101, ¶ 39, 274 Wis. 2d 278, 682 N.W.2d 923 (concluding that on public policy grounds common law negligence claims against a landlord or a landowner based on injury caused by a dog are limited to situations where the landlord or landowner is also the owner or keeper of the dog). However, a preclusion of liability is not a preclusion of negligence because "negligence and liability are distinct concepts." Nichols, 308 Wis. 2d 17, ¶ 19 (citing Hoida, 291 Wis. 2d 283, ¶ 25).

¶ 105. To summarize, when the negligence claim is based on a failure to act, the claim is, in the first instance, focused on whether the omission was negligent. Stated otherwise, the 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 *674duty under the circumstances. Hoida, 291 Wis. 2d 283, ¶ 32; Hatleberg, 283 Wis. 2d 234, ¶ 3; Baumeister, 277 Wis. 2d 21, ¶ 18.

¶ 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 one of the elements of negligence will not have been proven. Gritzner, 235 Wis. 2d 781, ¶ 19; A.E. Inv., 62 Wis. 2d at 484. Therefore, the initial determinations in failure to act cases do not come within the rubric of Palsgraf s dissent, where a negligent act had already occurred and the dissent parsed the effect of that negligent act on Palsgrafs claim of damages. Palsgraf, 162 N.E. at 105 (Andrews, J., dissenting).

¶ 107. Stated otherwise, what Palsgraf provided, and what this court has adopted, is that when a negligent act has occurred, the actor generally is liable to all who are injured by it. In evaluating that liability, we do not consider whether the actor had an individualized duty to each injured person. Palsgraf, 162 N.E. at 103.

¶ 108. A careful reading of the above cases, and many others that arise in the context of common law negligence, shows that the term "duty" has been used in two ways: (1) identifying duty as an element of a common law negligence claim and (2) identifying duty by describing an obligation to an injured person. When the negligence claim is based on a failure to act, the initial focus will be on the first use of duty. Hoida, 291 Wis. 2d 283, ¶ 51. When the negligence claim arises from an affirmative act claimed to be negligently undertaken, the second use of duty may be the central focus of our analysis. Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 235-36, 55 N.W.2d 29 (1952) *675(concluding that in Wisconsin a negligent actor's liability is not limited to the probable consequences of his act). However, our opinions have not always been precise in our descriptions of duty and the scope of duty under the circumstances presented, thereby causing some confusion for the reader.6

¶ 109. Chief Justice Abrahamson takes the unusual tact of attacking a concurring opinion in her ongoing mission of attempting to eliminate the element of duty from common law negligence claims in Wisconsin.7 In so doing, she only strengthens the black letter law that a negligence claim in Wisconsin has duty as an element. Nichols, 308 Wis. 2d 17, ¶ 11; Hoida, 291 Wis. 2d 283, ¶ 17; Gritzner, 235 Wis. 2d 781, ¶ 19; Rockweit, 197 Wis. 2d at 418.

¶ 110. Contrary to the lament of Chief Justice Abrahamson, Rockweit and Nichols are consistent with my discussion above. Rockweit examined whether a duty existed, and explained that "[although individuals generally owe a duty of ordinary care to all persons, we *676recognize that limitations do exist with respect to the imposition of a legal duty in some cases." Rockweit, 197 Wis. 2d at 421. In Nichols, we affirmed that in Wisconsin liability has been precluded under a negligence theory of recovery "based on the absence of a duty," although we have more frequently limited liability based on public policy concerns. Nichols, 308 Wis. 2d 17, ¶ 47.

¶ 111. Brown v. Dibbell, 227 Wis. 2d 28, 595 N.W.2d 358 (1999), is interesting to compare with Chief Justice Abrahamson's concurrence herein because she authored Brown. Brown arose in an informed consent context. Id. at 33. The physician, who Brown contended had provided insufficient information, defended in part by asserting that Brown, as the patient, had a duty to ascertain the completeness of the information the physician provided. Id. at 47. The court found no such duty existed. "A patient's duty to exercise ordinary care generally does not encompass a duty to ascertain the truth or the completeness of the information presented by a doctor." Id. at 51. The reasoning in Brown is similar to my conclusion that when a claim is based on a failure to act, we begin by examining whether there was a duty to undertake the acts that were alleged to have been wrongfully omitted. Duty remains a highly nuanced element of negligence; it has not been gobbled up by the dissenting opinion in Palsgraf.

C. Behrendt's Negligence Claim

¶ 112. The negligence claim Behrendt pled can be viewed as being based both on an affirmative act negligently undertaken and on a failure to act. For example, Behrendt alleged that Silvan was negligent in the manner in which the tank was manufactured and in *677failing to issue proper warnings and instructions.8 Presumably, the claim of negligent manufacturing arises from the allegation that the tank was manufactured as a side job under Silvan's policy that permitted side jobs. This contention is based on the implicit allegation that Silvan's creation of a policy that permitted side jobs was an affirmative act negligently undertaken.

¶ 113. The majority opinion focuses on the allegation that the tank was negligently manufactured because of Silvan's policy that permitted side jobs.9 Therefore, the majority opinion is analyzing an affirmative act, i.e., the creation of the policy permitting side jobs.

¶ 114. That the majority opinion's focus is on an affirmative act is shown by its decision to employ Section 7 of the Third Restatement of Torts as the framework for much of its discussion.10 Section 7 of that Restatement addresses the element of duty for negligence claims. It provides: "An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm." Restatement (Third) of Torts: Liability for Physical Harm § 7(a) *678(Proposed Final Draft No. 1, 2005). Section 7's discussion of duty is limited to affirmative acts; it does not address the element of duty based on an alleged failure to act. As the Restatement explains:

Relationship with affirmative duties to act. The general duty rule contained in this Section is conditioned on the actor's having engaged in conduct that creates a risk of physical harm. Section 3711 states the obverse of this rule: In the absence of conduct creating a risk of harm to others, an actor ordinarily has no duty of care to another.

Restatement (Third) of Torts § 7 cmt. 1 (Proposed Final Draft No. 1, 2005). Accordingly, because of the manner in which the majority opinion has shaped its discussion, I conclude that it presumes an affirmative act based on Silvan's policy of permitting side jobs.

¶ 115. It is important for the reader to be aware of whether the claim analyzed is one of an affirmative act negligently undertaken or an alleged failure to act, in order to fully understand the decision. Here, it is an affirmative act, the creation of Silvan's policy permitting side jobs, that was alleged to be negligently undertaken. Behrendt has not presented to us a negligence claim based on an alleged failure to act.

*679¶ 116. Even though the majority opinion employs § 7's discussion of duty as a framework, it focuses its discussion of liability on the second element of a negligence claim, breach.12 It concludes that Silvan was not negligent because it did not breach its duty of ordinary care under the circumstance.13

¶ 117. With regard to Silvan's creation of its side job policy, I agree that Silvan did not breach its duty of ordinary care under the circumstances. Silvan acted affirmatively when it created the side job policy. Accordingly, Silvan's policy must have evidenced the exercise of reasonable care, Johnson v. Seipel, 152 Wis. 2d 636, 644, 449 N.W.2d 66 (Ct. App. 1989), which we have also characterized as ordinary care under the circumstances, Totsky v. Riteway Bus Service, Inc., 2000 WI 29, ¶ 57, 233 Wis. 2d 371, 607 N.W.2d 637.

¶ 118. It is undisputed that Silvan's policy precluded the manufacturing of pressure vessels as side jobs. I conclude that the policy forbidding the manufacture of pressure vessels was reasonable, and Behrendt does not contend that Silvan's preclusion of the manufacturing of pressure vessels as a side job was unreasonable or that it violated Silvan's duty of ordinary care under the circumstances. Furthermore, Silvan's policy was followed on this side job because holes were cut into the tank so that it could not have been used as a pressure vessel when it left Silvan's control. Therefore, Silvan did not breach its duty to exercise ordinary care under the circumstances.

¶ 119. Furthermore, the tank that left Silvan did not cause Behrendt's injuries. It was the actions of third parties unaffiliated with Silvan that created the tank to *680which air pressure could be applied, which tank caused Behrendt's injuries.

III. CONCLUSION

¶ 120. In conclusion, the negligence claim that was argued to us is based on the allegation of an affirmative act negligently undertaken. It is not based on an alleged failure to act. Therefore, the majority's analysis relying on the determination of breach, rather than duty, is appropriate in this instance.

¶ 121. Accordingly, I respectfully concur in the majority opinion.

¶ 122. I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this concurrence.

Majority op., ¶¶ 5-7.

Amended Complaint, ¶ 20.

Behrendt v. Gulf Underwriters Ins. Co., No. 2006AP2910, unpublished slip op., ¶ 5 (Wis. Ct. App. Feb. 26, 2008).

Majority op., ¶ 4.

Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995), contains no majority opinion in regard to proof of the elements of Rockweit's negligence claim. The majority opinion, written by Justice Wilcox, joined by Justices Bablitch and Geske, concluded that there was a duty, but it did not affirm the jury finding of causation. Id. at 424-25. Instead, the majority opinion assumed causation and precluded liability based on public policy. Id. Then Justice Abrahamson's concurrence, joined by Justice Bradley, "address[ed] 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.'" Id. at 429. Justice Steinmetz's concurrence, joined by then Chief Justice Day, agreed with the majority opinion's public policy analysis, but also concluded there had been no breach. Id. at 433.

The discussion of duty is rarely simple. For example, it can be affected by the relationship between the alleged tortfeasor and the party claiming injury. See, e.g., Gritzner v. Michael R., 2000 WI 68, ¶¶ 52-56, 235 Wis. 2d 781, 611 N.W.2d 906 (concluding that Buhner had a duty to take affirmative acts to protect the child because he stood in loco parentis with regard to the injured child and because he voluntarily undertook a duty to protect her). Or, duty may be affected by the law underlying the obligation that is claimed to have been breached. See, e.g., Beloit Liquidating Trust v. Grade, 2004 WI 39, ¶ 2, 270 Wis. 2d 356, 677 N.W.2d 298 (concluding that in the context of a claimed breach of fiduciary duty, an intentional tort, corporation officers and directors owed only the duty of ordinary care to corporate creditors unless the corporation was both insolvent and no longer a going concern).

Chief Justice Abrahamson's concurrence, ¶¶ 50-53.

Amended Complaint, ¶ 20. Behrendt does not continue his failure to warn allegation before us. Perhaps Behrendt has dropped this allegation because the tank could not have been used as a pressure vessel when it left Silvan. See Schreiner v. Wieser Concrete Prods., Inc., 2006 WI App 138, ¶ 15, 294 Wis. 2d 832, 720 N.W.2d 525 (concluding that the plastic sheeting was not defective, thereby requiring no warning, even though it may have been used in an improper way). However, regardless of the reason, I do not address this claim because Behrendt did not brief or argue it to us. Truttschel v. Martin, 208 Wis. 2d 361, 369, 560 N.W.2d 315 (Ct. App. 1997).

Majority op., ¶ 24.

Id., ¶¶ 19-20, 26.

Restatement (Third) of Torts: Liability for Physical Harm § 37 (Proposed Final Draft No. 1, 2005) provides: "An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38-44 is applicable." See § 38 (duty imposed by statute); § 39 (duty based on prior conduct); § 40 (duty due to special relationship with the victim); § 41 (duty due to special relationship with persons posing risks of harm to others); §§ 42-43 (duty due to voluntary undertakings).

Majority op., ¶ 43.

Id.