¶ 53. (dissenting).
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¶ 54. I begin with a simple premise: ourjobisto clarify, not to confuse the law.
¶ 55. Thus, I am perplexed by the majority's approach here. It is as though the majority initially wrote the opinion limiting liability based on duty. See majority op., ¶¶ 20-40. Then, recognizing that such an approach is inconsistent with Wisconsin law, it reworded some things and tagged on an ending that limits liability based on public policy, without deleting the initial duty analysis. See id., ¶¶ 41-43.
¶ 56. Today's majority inexplicably seems to cloud what this court recently clarified. In Gritzner v. Michael R., 2000 WI 68, ¶ 24 n.4, 235 Wis. 2d 781, 611 N.W.2d 906, Justice Wilcox, writing on behalf of the court, carefully analyzed the prior confusion and explained the rudimentary principle that limiting liability based on duty is "incorrect under Wisconsin law."
[ S]ome Wisconsin cases have examined liability limitations in terms of duty. See Estate of Becker v. Olson, 218 *320Wis. 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.
Gritzner, 235 Wis. 2d 781, ¶ 24 n.4 (emphasis added).
¶ 57. Three years after Gritzner, the court reaffirmed this passage, noting that the Gritzner court had "aptly" clarified the previous confusion. Alvarado v. Sersch, 2003 WI 55, ¶ 16 & n.2, 262 Wis. 2d 74, 662 N.W.2d 350. Quoting Gritzner, we again stated that limiting liability based on duty "is incorrect under Wisconsin law." Id. (emphasis added).
¶ 58. Nevertheless, the majority seems to ignore this rudimentary principle. In analyzing Hoida's claim, it spends approximately twenty lengthy paragraphs of discussion to determine, in essence, that M&I and McDonald Title's liability is limited because they did not owe certain duties to Hoida. See majority op., ¶¶ 20-40. Substituting the word "obligation" for the word "duty," the majority concludes that neither M&I nor McDonald Title had "the obligation to undertake the tasks Hoida seeks to impose on M&I. Furthermore, Hoida cites no Wisconsin case that would create the obligations for an agent that it ascribes to McDonald Title." Id., ¶ 39; see also id., ¶ 44.
¶ 59. This rudimentary principle of Wisconsin negligence jurisprudence has been recognized by the court over and over again. In Wisconsin we have rejected the no duty-no liability approach and instead limit liability based on the application of public policy factors. See, e.g., Stehlik v. Rhoads, 2002 WI 73, ¶ 52, *321253 Wis. 2d 477, 645 N.W.2d 889 ("[I]n Wisconsin, common law limitations on liability are determined not by reference to the absence of a duty, but as a matter of public policy") (emphasis added); Rockweit v. Senecal, 197 Wis. 2d 409, 425, 541 N.W.2d 742 (1995) (Justice Wilcox writing for the majority) ("[T]he determination to deny liability is essentially one of public policy rather than of duty....") (emphasis added); Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 644, 517 N.W.2d 432 (1994) ("[T]he doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability.") (emphasis added); see also Alvarado, 262 Wis. 2d 74, ¶ 16; Smaxwell v. Bayard, 2004 WI 101, ¶ 39, 274 Wis. 2d 278, 682 N.W.2d 923; Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶¶ 32, 45, 254 Wis. 2d 77, 646 N.W.2d 777.
¶ 60. With the majority's primary focus on duty, is it sub silentio overruling our pronouncements in Steh-lik and Rockweit? Is it retreating from Bowen, Smaxwell, and Physicians Plus ? Is the majority saying that Gritzner was wrong when it said that to limit liability based on duty is "incorrect"?
¶ 61. I doubt it, but it is hard to know for sure.
¶ 62. On the one hand, the majority cites Gritzner with approval, but on the other hand it states that courts can limit liability in examining the question of "whether a duty exists and the scope of such a duty." Majority op., ¶ 23 n.12 (emphasis added). In one paragraph it cites favorably to Smaxwell, id., ¶ 24, but then in the next paragraph it states that "even if an appellate court can directly consider the judicial public policy factors to preclude liability," it still must first consider whether there is a duty. Id., ¶ 25. It cites Alvarado for this latter premise, id., but Alvarado says no such thing.
*322¶ 63. What are courts, lawyers, and litigants to think? Does Wisconsin limit liability for negligence based on public policy, or based on duty?
¶ 64. I thought that this question was answered decades ago when Wisconsin rejected the no duty-no liability approach of the majority in Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928). In A. E. Investment Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 483, 214 N.W.2d 764 (1974), this court set forth "[t]he history of this court's rejection of the no duty-no liability concept of the majority in Palsgraf. ..." Likewise, in Smaxwell, we explained that "Wisconsin has rejected the 'no duty' approach of the majority opinion in Palsgraf.... As we have previously explained: 'In this state all persons have a duty of reasonable care to refrain from those acts that unreasonably threaten the safety of others....'" Smaxwell, 274 Wis. 2d 278, ¶ 32 (citations omitted).
¶ 65. What is problematic about the majority's approach, however, is not only that it limits liability based on duty. Rather, what is particularly problematic here is the confusion that the majority engenders with respect to the development of our law. It purports to undertake an authoritative outline of the development of Wisconsin's approach to negligence law that is at odds with our legal history. See majority op., ¶¶ 23-29. After reinterpreting our history, it ultimately employs a liability analysis that, in reality, focuses on duty. Thus, the majority opinion in both its re-interpretation of our legal history and in its analysis contradicts Wisconsin's historical rejection of the no duty-no liability approach of the Palsgraf majority.1
*323¶ 66. In focusing primarily on duty, the majority relies heavily on Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 77 N.W.2d 397 (1956). Citing that case as authority, it says that in Klassa "we reviewed the established concept that in order to find negligence, a court must first decide whether the defendant owed a duty to the plaintiff." Majority op., ¶ 28. But today's majority more than "reviews" this supposedly established concept. The majority seems to revive it.
¶ 67. Klassa is recognized as establishing exactly the opposite of the no duty-no liability approach that the majority now appears to revive. The court in A. E. Investment, 62 Wis. 2d at 483-86, recognized that it was in Klassa that Wisconsin expressly adopted the position *324of the dissent in Palsgraf, rejecting the no duty-no liability approach of the Palsgraf majority.
¶ 68. Likewise, the court in Bowen proclaimed Klassa the death knell of the duty analysis that the majority here seemingly resurrects:
The Klassa court attempted to harmonize Waube [v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935)]'s zone of danger rule with the Wisconsin approach to the law of negligence by renouncing Palsgraf s concept of duty. Wisconsin law considers conduct to be negligent if it involves a foreseeable risk of harm to anyone. In Wisconsin, the doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability.... Klassa's public policy formulation is a more realistic description of how Wisconsin courts decide whether to impose liability upon a negligent tortfeasor than the foreseeability formulation in Palsgraf and Waube.
Bowen, 183 Wis. 2d at 644-645 (footnotes omitted).
¶ 69. In any event, those cases and other cases of even more recent vintage (cited above), dispel the interpretative cast over Klassa that today's majority appears to advance. Under those cases, it is fundamental that courts in Wisconsin do not "first decide whether the defendant owed a duty to the plaintiff' as the majority suggests. See majority op., ¶ 28. Rather, those cases establish that in Wisconsin everyone has a duty to exercise ordinary care under the circumstances.2
*325¶ 70. Wisconsin follows the approach of the Pals-graf dissent. In this approach the duty and breach elements are integrated into a "more general inquiry which asks simply whether the defendant's conduct was 'negligent,' then separately address[es] the issue of causation and damages." Vincent R. Johnson & Alan Gunn, Studies in American Tort Law 217 (1994).
¶ 71. For example, in an ordinary negligence case, the jury is not asked separate questions of whether there exists a duty and whether that duty was breached. Rather, those concepts are incorporated into our negligence inquiry. Thus, the jury is asked the question of whether a party was negligent.3
¶ 72. Curiously, the majority criticizes this dissent for relying heavily on the Palsgraf dissent, which is the law of Wisconsin. See majority op., ¶ 23 n.12. How odd to be criticized for relying on what the law is rather than what it is not.
¶ 73. I have no quarrel with the four-element test for ordinary negligence as stated by the majority and *326numerous Wisconsin cases. See id., ¶ 23. In Wisconsin, however, the existence of a duty is always present in an ordinary negligence determination.4 This is because we are all held to a duty of exercising ordinary care under the circumstances.
¶ 74. The majority compounds the confusion and seems to corrupt the four-element formulation of the test by breaking the duty element into two sub-parts: "(1) the existence of a duty of ordinary care; and, (2) an assessment of what ordinary care requires under the circumstances." Id., ¶ 27 (emphasis added). The majority cites Hatleberg v. Norwest Bank Wisconsin, 2005 WI 109, ¶¶ 17-18, 283 Wis. 2d 234, 700 N.W.2d 15, for this two-pronged formulation of duty, see majority op., ¶ 27, but the cited portions of Hatleberg do not support this two-pronged approach. Why today's majority perceives a need to divide the duty element into two further elements is unclear.
¶ 75. Also confusing is the majority's repeated characterization of Hoida's cause of action as a "new" type of claim. See majority op., ¶ 26 (referring to "this new claim that Hoida seeks to develop"); ¶ 48 ("if this court were to develop a new lender liability claim . . . ."). What new type of claim is the majority talking about? There is no dispute that Hoida pled a claim for ordinary negligence. Perhaps today's majority opinion applies only to such a "lender liability claim"? Majority op., ¶ 48.1 am uncertain. The majority's characterization of Hoida's ordinary negligence as some "new" type of claim seems to be without support.
*327¶ 76. In addition to characterizing Hoida's claim as a "new" type of claim, the majority also unexpectedly creates a unique pleading requirement for this new claim. Contrary to our general notice pleading requirements, the majority imposes a new mandate for particularity: "In the future, when attempting to plead lender liability based on negligently failing to undertake certain tasks, a plaintiff must allege why the duty of ordinary care of the lender or disbursing agent includes the obligation to affirmatively undertake the tasks that plaintiff claims the lender or disbursing agent reasonably failed to perform under the circumstances." Id., ¶ 46.
¶ 77. I am not sure what will be deemed sufficient under the majority's new mandate. Maybe it means here that the plaintiffs should have pled that: "the duty to get lien waivers is part of the duty to exercise ordinary care under the circumstances because the evidence reveals that it is the standard in the industry to get such lien waivers." Even so, that is exactly what the evidence here seems to reveal.5 Yet, the majority apparently concludes as a matter of law that the standard in the industry is not part of the duty to exercise ordinary care. Therefore, such a pleading would have been insufficient. It seems to me that this new requirement is nothing more than a trap for the unwary.
¶ 78. I return to the simple premise that our job is to clarify, not to confuse the law. As we explained in Gritzner, the "no duty" approach to limiting liability used by the majority today is plainly "incorrect under Wisconsin law." Gritzner, 235 Wis. 2d 781, ¶ 24 n.4.
¶ 79. What reason could today's majority have for seeming to cloud what this court has repeatedly clari-*328fled? Why does the majority assert a reinterpretive cast over Wisconsin's approach to negligence law that is at odds with our legal history?
¶ 80. Perhaps the answer lies in the confusion observed in Mohr v. St Paul Fire & Marine Insurance Co., 2004 WI App 5, ¶ 40, 269 Wis. 2d 302, 674 N.W.2d 576 (Ct. App. 2003), review denied, 2004 WI 50, 271 Wis. 2d 109, 679 N.W.2d 544: "Although courts have sometimes used the language that a defendant had 'no duty' to the injured person, they are in reality making a decision that there should be no liability as a matter of public policy."
¶ 81. I ultimately conclude that it cannot be discerned what today's majority opinion stands for in Wisconsin negligence law. I suspect that other readers of the majority opinion will reach the same conclusion.
II
¶ 82. In order to determine whether liability for negligence should be limited, Wisconsin courts apply six public policy considerations, asking whether:
(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.
¶ 83. "In most cases, the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability." *329Alvarado, 262 Wis. 2d 74, ¶ 18. "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." Id.; see also 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).
¶ 84. Here, the facts are not so simple and the conclusions regarding negligence are mixed. The majority ignores, for example, that the failure to obtain lien waivers was a violation of M&I's own policies. Similarly, it downplays testimony that lien waivers are customarily obtained before the funding of subsequent draw requests. See majority op., ¶ 20.
¶ 85. In stark contrast to the majority's determination that M&I and McDonald Title were not negligent as a matter of law, the court of appeals in this case concluded the opposite. It concluded that M&I and McDonald were negligent as a matter of law:
Here, the act (or failure to act) was the failure to procure lien waivers. M&I and McDonald witnesses stated that obtaining lien waivers was the industry standard, and that this was the usual practice of M&I and McDonald. Domaszek averred that it was inconsistent with M&I's policy to pay draws when lien waivers had not been obtained on previous draws. Robert McDonald averred that in Portage County, lien waivers are customarily obtained by disbursing agents before the funding of the next draw request. McDonald also averred that the guidelines and procedures of the insurance manual governing the title insurance issued for the project stated that "we should make every effort to obtain [lien] waivers in full wherever possible." It was foreseeable that the failure to obtain lien waivers could harm subcontractors, including Hoida.
*330Hoida, Inc. v. M&I Midstate Bank, 2004 WI App 191, ¶ 14, 276 Wis. 2d 705, 688 N.W.2d 691.
¶ 86. One would think that the court of appeals' conclusion that M&I and McDonald were negligent as a matter of law should at least cause the majority to pause. When the majority determines to the contrary that M&I and McDonald cannot be negligent as a matter of law, what the majority should be pausing to ask is whether a reasonable jury could conclude that M&I or McDonald Title "[did] something (or fail[ed] to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage." Wis. JI Civil — 1005 ("NEGLIGENCE: DEFINED"). Asking the proper question, I determine that, at a minimum, a question of fact remains as to whether M&I and McDonald Title were negligent.
¶ 87. Nevertheless, having concluded that the defendants are not negligent as a matter of law, the majority applies one of the six public policy considerations, essentially as an afterthought to its liability-limiting "duty" analysis. By failing to recognize the rudimentary principle that liability for negligence is limited by public policy considerations, not duty, the majority front loads its negligence analysis focusing on duty. Thus, it avoids any real discussion of those public policy considerations and of whether it is too soon to apply them.
¶ 88. The majority does not explain why it departs from the better practice of submitting the case to the jury before determining whether the six public policy considerations should preclude liability. It does not explain why this is one of the unusual cases where the facts are simple to ascertain and the public policy questions have been fully presented.
*331¶ 89. In applying only one of the six public policy considerations, the majority concludes that permitting recovery would place "too unreasonable a burden on McDonald Title, who acted solely at the direction of M&I." Majority op., ¶ 43.6 The majority apparently believes that it would be unreasonable to require that McDonald Title "collect lien waivers from all subcontractors and materialmen" because "[t]racking who purchased what and when would be a never-ending task." Id.
¶ 90. Such a belief is unpersuasive here. As already discussed, there was evidence that both M&I's policies and industry standards required the collection of hen waivers. Thus, as the evidence stands now — particularly if, following standard summary judgment methodology, ah reasonable inferences are construed in favor of Hoida —the record hardly justifies a conclusion that requiring the collection of lien waivers places too unreasonable a burden on either McDonald Title or M&I.
¶ 91. In addition, as the facts stand now, there is serious question as to whether Hoida's injury is too remote from any negligence, whether it is wholly out of proportion to the defendants' culpability, or whether in retrospect it appears too highly extraordinary that their negligence should have resulted in the harm that Hoida suffered. Likewise, nothing in the record at this stage of the proceedings conclusively suggests that allowing recovery would be likely to open the way for fraudulent claims or would enter a field that has no sensible or just stopping point.
¶ 92. As referenced above, it is worth repeating that the parties' arguments reflect significant factual *332disagreements, including a key disagreement over the precise role of McDonald Title. The parties dispute whether McDonald Title was a "construction supervisor" or "disbursing agent," and what obligations flow from one role or the other. In my view, the nature of McDonald Title's role is plainly relevant to the proper application of the public policy considerations.
¶ 93. Consequently, I conclude that it is too early to apply the public policy considerations to limit liability at this stage of the proceedings. In doing so, I follow the better practice of submitting the case to the jury before determining whether the six public policy considerations should preclude liability. Here, the facts are not presently simple to ascertain. The public policy questions are not sufficiently presented for this court to preclude liability at this time.
I-H h-I
¶ 94. In sum, I cannot join the majority because it erroneously cuts off liability for potential negligence using the concept of duty rather than public policy. In doing so, it seems to cloud one of Wisconsin's most rudimentary negligence principles. Unlike today's confusing majority opinion, I apply that principle and conclude that it is too early to apply the public policy considerations to limit M&I's or McDonald Title's liability for their potential negligence. I would therefore reverse the court of appeals and remand this case to the circuit court for further proceedings. Accordingly, I respectfully dissent.
¶ 95. I am authorized to state that JUSTICE LOUIS B. BUTLER, JR. joins this opinion.
1n her dissenting opinion in Alvarado v. Sersch, 2003 WI 55, 262 Wis. 2d 74, 662 N.W.2d 350, then-Justice Diane Sykes discussed the genesis of Wisconsin's approach to negligence. After observing that "in Wisconsin, common law limitations on *323liability are determined not by reference to the absence of a duty, but as a matter of public policy," id,., ¶ 36 (citation omitted), she proceeded to examine the dissenting opinion in Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928), written by Judge Andrews. Justice Sykes explained:
What we in Wisconsin refer to as public policy limitations on liability, Judge Andrews catalogued as factors that govern the court's determination of legal or "proximate cause."
Judge Andrews said that the duty of ordinary care is owed to all who might be injured as a consequence of an unreasonably risky (i.e., negligent) act or omission, but he also said "there is one limitation. The damages must he 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. The negligence, he said, might be "[a] cause, but not the proximate cause. What we [] mean by the word 'proximate' is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics." Id. This judicial line-drawing relies upon "common sense" and "fair judgment," and "endeavor [s] to make a rule in each case that will be practical and in keeping with the general understanding of mankind." Id. at 104.
Alvarado, 262 Wis. 2d 74, ¶¶ 42-43 (Sykes, J, dissenting).
Hatleberg v. Norwest Bank Wisconsin, 2005 WI 109, ¶ 17, 283 Wis. 2d 234, 700 N.W.2d 15; Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923; Alvarado, 262 Wis. 2d 74, ¶¶ 13-14; Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 16, 251 Wis. 2d 171, 641 N.W.2d 158; Gritzner v. Michael R., 2000 WI 68, ¶ 20, 235 Wis. 2d 781, 611 N.W.2d 906; Rockweit v. Senecal, 197 Wis. 2d 409, 419-420, 541 N.W.2d 742 (1995).
Negligence is defined in Wisconsin as follows:
A person is negligent when [he/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.
Wis. JI Civil — 1005 ("NEGLIGENCE: DEFINED"); accord Alvarado, 262 Wis. 2d 74, ¶ 34 & n.1; Gritzner, 235 Wis. 2d 781, ¶ 22; Morden v. Continental AG, 2000 WI 51, ¶ 53, 235 Wis. 2d 325, 611 N.W.2d 659; Rockweit, 197 Wis. 2d at 424 & n.7; Schuster v. St. Vincent Hosp., 45 Wis. 2d 135, 141, 172 N.W.2d 421 (1969); Osborne v. Montgomery, 203 Wis. 223, 242-43, 234 N.W. 372 (1931).
This case is pled as and presents a claim of ordinary negligence. No special relationship is alleged that would impose a heightened duty and take this case out of the normal negligence analysis. See A. E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 486, 214 N.W.2d 764 (1974).
See Part II of this dissent below.
The majority does not explain why permitting recovery would place too unreasonable a burden on M&I.