Butler v. Advanced Drainage Systems, Inc.

ANN WALSH BRADLEY, J.

¶ 56. (dissenting). This court has repeatedly explained that 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 v. Michael R., 2000 WI 68, ¶ 26, 235 Wis. 2d 781, 611 N.W.2d 906; Sawyer v. Midelfort, 227 Wis. 2d 124, 141, 595 N.W.2d 423 (1999); Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 655, 517 *430N.W.2d 432 (1994); 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).

¶ 57. Thus, the better practice is generally to submit a case to the jury before determining whether public policy factors should preclude liability. Smaxwell v. Bayard, 2004 WI 101, ¶ 41, 274 Wis. 2d 278, 682 N.W.2d 923. "The cases in which a causally negligent tort-feasor has been relieved of liability are infrequent and present unusual and extreme considerations." Stewart v. Wulf, 85 Wis. 2d 461, 479, 271 N.W.2d 79 (1978).

¶ 58. "The court has stated the[] public policy considerations that may preclude liability in capsule form as follows: When it would shock the conscience of society to impose liability, the courts may hold as a matter of law that there is no liability." Bowen, 183 Wis. 2d at 656; see also Fandrey ex rel. Connell v. American Family Mut. Ins. Co., 2004 WI 62, ¶ 15, 272 Wis. 2d 46, 680 N.W.2d 345.

¶ 59. The majority's conscience is easily shocked.

¶ 60. I dissent for three reasons. First, I would follow the better practice and decline to apply the public policy factors on the summary judgment record before us. Second, even if I were to attempt an application of the factors on the present record, that application would not justify limiting liability at this stage of proceedings. Third, I write to observe that this case illustrates why there is often an uncomfortable fit between summary judgment methodology and application of the public policy factors.

HH

¶ 61. In order to determine whether liability for negligence should be limited, Wisconsin courts apply six public policy factors. The courts are to ask whether:

*431(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.

See, e.g., Gritzner, 235 Wis. 2d 781, ¶ 27.

¶ 62. The majority ignores the better practice and applies only one of the six public policy factors to preclude liability for negligence. It does so on summary judgment even though the facts are not yet well developed and not simple to ascertain. The majority thereby cuts off the potential for liability before the public policy questions this case might raise are even fully presented.1

¶ 63. Given that it is too early to effectively apply the public policy factors, I am not surprised that the majority's analysis of public policy amounts to essentially no analysis whatsoever.

¶ 64. The reader can decide whether the majority's public policy "analysis" is convincing to anyone other than the majority. In order to assist the reader, I will summarize the majority's analysis. This is easily done because its entire analysis consists of six paragraphs amounting to two reasons for its conclusion to limit liability for negligence: (1) its assertion that this case is similar to Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995), and (2) its application of one of the six *432public policy factors to conclude that allowing liability here would have no just or sensible stopping point. See majority op., ¶¶ 21-26.

¶ 65. The majority's assertion that this case is similar to Rockweit is curious. Why? Because Rockweit was a case in which the court followed the better practice, applying the public policy factors after the facts were fully developed at a jury trial. Rockweit, 197 Wis. 2d at 416-17, 426-29.

¶ 66. There is no shortage of cases in which this court has declined to apply the public policy factors to preclude liability before a case has been tried. See, e.g., Alvarado v. Sersch, 2003 WI 55, ¶ 30, 262 Wis. 2d 74, 662 N.W.2d 350; Sawyer, 227 Wis. 2d at 151; Bowen, 183 Wis. 2d at 660; Schuster, 144 Wis. 2d at 262-63; Coffey, 74 Wis. 2d at 541-43; cf. Stewart, 85 Wis. 2d at 481 (in which the court determined after a trial that "[t]his is not a case in which public policy considerations dictate that one should be relieved of liability").

¶ 67. Why does the majority fail to discuss any of these cases?2

¶ 68. As for the majority's two-paragraph discussion of one of the six public policy factors, it is wholly unpersuasive. I begin by quoting the majority's central rationale, and then explain why it is so unconvincing:

If we were to permit liability against the defendants before us, we would be opening the door to property owners' claims against any contractor who contracts with a municipality to remediate a naturally occurring hazard, when the contractor fails to completely abate the hazard's effects. This broad exposure to Lability would chill municipalities' efforts in at*433tempting abatement projects. It could also chill contractors from bidding on those types of municipal projects; where in addition to being subject to a breach of contract action by the municipality for not performing as they had contracted to perform, the contractors would be subject to litigation by any property owner who would have benefited from a successfully performed municipal contract.

Majority op., ¶ 25.

¶ 69. There are at least three reasons why the majority's application of this public policy factor is unconvincing.3

¶ 70. First, the majority comes perilously close to setting forth a blanket rule of immunity from liability for all contractors that contract with municipalities. It is difficult to imagine how the majority's reasoning can be limited in any principled manner to contractors who contract with municipalities "to remediate a naturally occurring hazard." Id. Are contractors who contract with municipalities for purposes other than remediation of a "naturally occurring hazard" really situated any differently under the majority's rationale? I am concerned that there are ramifications to the majority's cursory analysis that may reverberate well beyond the facts of this case to provide immunity where none previously existed.

¶ 71. Second, the blanket rule of immunity that the majority comes close to adopting seems to render superfluous case law providing that private contractors who contract with the government may be entitled to *434immunity when certain conditions are met. See Estate of Lyons v. CNA Ins. Cos., 207 Wis. 2d 446, 457-58, 558 N.W.2d 658 (Ct. App. 1996); see also Jankee v. Clark County, 2000 WI 64, ¶ 44, 235 Wis. 2d 700, 612 N.W.2d 297.

¶ 72. Under Lyons, an independent contractor who follows governmental directives can be entitled to immunity when:

(1) the governmental authority approved reasonably precise specifications;
(2) the contractor's actions conformed to those specifications; and
(3) the contractor warned the supervising governmental authority about the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials.

Lyons, 207 Wis. 2d at 457-58. The court of appeals has explained "[t]his three-part test will ensure that state and municipal government, and the public at large, is able to make the best use of professional design assistance, but that professional contractors are not unfairly burdened by lawsuits when they follow governmental directives." Id. at 458.

¶ 73. The majority fails to explain how its opinion squares with the Lyons rule. Indeed, it fails to even acknowledge that the Lyons rule exists. Is it sub silentio overruling Lyons ?

¶ 74. Third, the majority cites no facts of record for its speculative assertion that imposing liability here would chill municipalities' efforts in attempting abatement projects and would chill contractors from bidding on those types of projects. Just as likely, imposing liability would chill tortious conduct.

*435¶ 75. The reader can now decide whether the majority's six- paragraph analysis analogizing to Rock-weit and applying one of the six public policy factors is persuasive to anyone but the majority.

HH 1 — I

¶ 76. To the extent possible on the limited record before us, I now turn to address the public policy factors that the majority ignores. To the extent those factors can be applied on the present record, they do not justify limiting liability.

¶ 77. Whether the injury is too remote from the negligence and whether in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm. The application of each of these two factors weighs in favor of liability. There can be no real dispute that everyone involved was keenly aware of what would happen if the defendants negligently failed to perform their contract obligations. The lake would continue to rise resulting in damages to surrounding landowners. It is not highly extraordinary that the defendants' negligence in designing or constructing the drainage system in this case would result in property damage to the landowners.

¶ 78. Whether the injury is too wholly out of proportion to the tortfeasor's culpability and whether allowing recovery would place too unreasonable a burden on the tortfeasor. It is too early in this litigation to apply these factors in any meaningful sense because the extent of the damages to the property owners remains unknown. Also unknown at this stage in the proceedings is how comparative negligence principles may affect the extent of any liability burden on the defendants. See Stewart, 85 Wis. 2d at 480-81 (declining *436to apply public policy factors and distinguishing cases that applied the factors because those cases did not involve issues of comparative negligence).

¶ 79. Whether allowing recovery would he too likely to open the way for fraudulent claims. The majority recites no facts of record suggesting that to allow recovery in this case would likely open the way for fraudulent claims. This is because there are no such facts. Given the facts that we know, it is difficult to conceive how allowing recovery would be too likely to open the way for fraudulent claims.

¶ 80. Having addressed all six public policy factors to the extent possible on the limited record before us, I conclude that their application does not justify limiting liability at this stage of the proceedings. Rather, the case before us is one where "[a] trial court or jury finding as to actual negligence, damage and the causal relationship between them would be material and helpful in evaluating the public policy considerations." Coffey, 74 Wis. 2d at 543.

l — l H-< 1 — 1

¶ 81. Finally, I write because this case illustrates why there will often be an uncomfortable fit between summary judgment methodology and application of the public policy factors. This uncomfortable fit further highlights why it is typically ill-advised to limit liability using those factors at the summary judgment stage of proceedings.

¶ 82. As the majority knows, the cardinal principles of summary judgment methodology include that "[sjummary judgment should not be granted, unless the facts presented conclusively show that the plaintiffs *437action has no merit and cannot be maintained." Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶ 14, 281 Wis. 2d 448, 699 N.W.2d 54 (internal quotations and citations omitted). The court is required to "view the summary judgment materials in the light most favorable to the nonmoving party." Id. Stated another way, all reasonable inferences to be drawn from the evidence of record must be viewed in the light most favorable to the nonmoving party. Johnson v. Rogers Mem'l Hosp., Inc., 2005 WI 114, ¶ 30, 283 Wis. 2d 384, 700 N.W.2d 27.

¶ 83. The outcome of this case would be different if the majority were actually to apply these cardinal summary judgment principles. Instead, the majority stops with rote recitation of summary judgment principles. See majority op., ¶ 18.

¶ 84. The majority assures the reader that the "relevant facts relating to thé attempted water abatement are not disputed." Id., ¶ 21. It also assures the reader that "the facts of record are sufficiently developed ... to undertake a public policy analysis." Id. How can the majority make these assurances when facts material to cause, damages, and a meaningful application of the public policy factors remain disputed in this case?

¶ 85. The parties dispute whether the defendants' negligence was a cause of the landowners' damages. The engineering firm hired by the City to investigate the failed drainage project concluded that the pipeline failure stemmed from design and material defects along with failure to test the materials.

¶ 86. The defendants in this case undertook to control the lake's water level. The landowners maintain that if the defendants had exercised ordinary care in the design and testing of the pipeline, then the water level would have receded. They assert that the defendants' *438negligence thus caused the lake level to rise which, in turn, caused the damage to their property. The defendants dispute the allegations of negligence and assert that the facts reveal the exercise of ordinary care.

¶ 87. The uncomfortable fit is further illustrated by the rationale focusing on cause (a substantial factor) employed by the majority. In essence, the majority's position is that the defendants' negligence did not cause any injury because it would have happened anyway. See id., ¶ 24 ("[i]t is probable that absent any act by the defendants, the plaintiffs, nevertheless, would have suffered damages.").

¶ 88. The majority takes the plaintiffs to task for their assertion that "a cause of this invasion is the defendants' unsuccessful abatement actions." Id., ¶ 32. Ultimately the majority concludes that "there is no dispute that the defendants did nothing to cause the Lake's rising water level." Id. It is with this ultimate conclusion that the inconsistency of the majority's position is highlighted.

¶ 89. How can the majority on the one hand conclude that there are no facts which would support a finding of causation, while on the other hand state that in its public policy determination it assumes the defendants' negligence caused the damages? See id., ¶ 21 ("[W]e assume there is negligence and that the negligence was a cause of the injury" when we apply public policy factors.).

¶ 90. The majority cannot have it both ways. It cannot both assume that the defendants' negligence was a cause of the plaintiffs' damages while at the same time conclude that there are no facts in dispute that would support a finding of causal negligence.

¶ 91. In addition, factual disputes remain as to the amount of damages, apportionment of liability, and *439mitigation of damages, all of which implicate the magnitude of the injury and the consequent burden on the defendants. One of the defendants explains in its brief that the circuit court denied class certification to the landowners'because of:

concern over the number of plaintiffs who would have to testify, the proof of individual damage claims [,] and how the affirmative defenses of contributory negligence and mitigation of damages would be dealt with as a class action.

¶ 92. Another defendant, in discussing why the circuit court properly denied class certification, explains similarly:

Each of those issues [apportionment of liability, mitigation, and the landowners divergent damages claims] involves complex and disputed sets of fact[s] that are unique to each particular property owner ....

(Emphasis added.)

¶ 93. As already explained, the court cannot meaningfully apply the public policy factors of whether the injury is too wholly out of proportion to the tortfeasor's culpability or whether allowing recovery would place too unreasonable a burden on the tortfea-sor when it does not know the extent of the requisite injuries or burdens. The myriad factual disputes likely implicate additional public factors as well. Yet the majority assures us that the "relevant facts relating to the attempted water abatement are not disputed" and that "the facts of record are sufficiently developed ... to undertake a public policy analysis." Majority op., ¶ 21.

¶ 94. The remaining factual disputes preclude a meaningful application of the public policy factors. Moreover, if the majority were to construe reasonable *440inferences from the disputed material facts in favor of the landowners as it is required to do, it could not apply the factors to preclude liability on summary judgment. This case is a prime example of the uncomfortable fit between summary judgment methodology and a proper application of the public policy factors.4

IV

¶ 95. In sum, I would follow the better practice and decline to apply the public policy factors on the summary judgment record before us. Even if I were to attempt an application of the factors on the present record, however, that application would not justify limiting liability at this stage of proceedings. Accordingly, I respectfully dissent.

¶ 96. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice LOUIS B. BUTLER join this dissent.

1 need not and do not separately address the majority's analysis of the landowners' nuisance claims. As the majority correctly recognizes, liability for a nuisance claim based on negligence is subject to limitation based on the same public policy factors. See majority op., ¶ 32.

The majority cites some of these cases in passing when it sets forth the public policy factors. Majority op., ¶¶ 19-20.

1 acknowledge case law stating that liability may be denied solely on the basis of one public policy factor. See Smaxwell v. Bayard, 2004 WI 101, ¶ 41,274 Wis. 2d 278, 682 N.W.2d 923. The controlling ñatee of one or more factors under the facts of a particular case should not mean, however, that the court simply abdicates all responsibility to inquire into the remaining factors.

1 do not maintain that it is never correct to apply the public policy factors to preclude liability at the summary judgment or earlier stage of proceedings. Such application is appropriate, however, only when the facts are simple to ascertain and the public policy questions have been fully presented. Alvarado v. Sersch, 2003 WI 55, ¶ 18, 262 Wis. 2d 74, 662 N.W.2d 350; Gritzner v. Michael R., 2000 WI 68, ¶ 26, 235 Wis. 2d 781, 611 N.W.2d 906; Sawyer v. Midelfort, 227 Wis. 2d 124, 141, 595 N.W.2d 423 (1999); Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 655, 517 N.W.2d 432 (1994); 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).