Gritzner v. Michael R.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 75. (concurring). I agree with Part VI of the lead opinion that the Gritzners' complaint states a claim against Roger Bubner for negligent failure to control Michael's conduct. The Gritzners' complaint also states a claim against Roger Bubner for negligent failure to warn Tara's parents. But, in contrast to the lead opinion, I would not have this court conclude, after applying public policy considerations, "that the Gritzners' claim for negligent failure to warn is barred as a matter of law." Lead op. at ¶ 44.1 conclude that the circuit court, not this court, should first apply public policy factors after a full factual resolution. I would therefore not *819dismiss the claim for negligent failure to warn. I would remand the cause on both claims.

¶ 76. As the lead opinion explains, every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. In Wisconsin a duty to use ordinary care is established whenever it is foreseeable that a person’s act or failure to act might cause harm to some other person. 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. Lead op. at ¶¶ 20, 22, 23, 24. Failure to warn, depending on the circumstances, may be a breach of the duty of ordinary care.

¶ 77. The facts stated in this complaint, if proved, may constitute a claim against Buhner for negligent failure to warn.1 Under the alleged facts, it was foreseeable that Buhner's failure to warn might cause harm to Tara. A reasonable person would have recognized that Buhner's failure to warn Tara's parents created an unreasonable risk of injury to Tara.2 This conclusion comports with our case law that recognizes *820that a failure to warn may constitute negligence under numerous, diverse circumstances.3

¶ 78. I disagree with Part V of the lead opinion that states that"under the circumstances of this case, liability for failure to warn is barred by public policy." Lead op. at ¶ 43 (emphasis added). The lead opinion goes on to state that it "would not foreclose the possibility that under different circumstances a plaintiff could recover based on negligent failure to warn about a known risk of sexual abuse." Lead op. at ¶ 43 (emphasis added). The lead opinion does not tell us what these different circumstances might be.

¶ 79. Because the lead opinion stresses the circumstances of this case, I examine the circumstances of this case.

¶ 80. This case is here on a motion to dismiss. The complaint in this case alleges that Buhner, who *821was entrusted with the care of Michael and Tara, "knew that [Michael] had engaged in inappropriate sexual acts with another child or other children," that Buhner "knew or should have known that Michael had a propensity to engage in inappropriate sexual acts with female children," and that Bubner "failed to warn the parents of [Tara] of [Michael's] propensity."

¶ 81. The lead opinion repeatedly emphasizes that its decision to preclude liability for negligent failure to warn on public policy factors is based on the circumstances of this case and that under different circumstances a plaintiff might recover damages based on negligent failure to warn about a known risk of sexual abuse. Yet we know very little of the circumstances and facts of this case. We do not know, for example, about Michael's prior "inappropriate sexual acts" with female children, or how many victims were involved. We do not know whether Michael was adjudged a delinquent. Lead op. at ¶ 37. We do not know whether Michael's previous inappropriate sexual act or acts were the subject of any juvenile court proceedings. Lead op. at n.5.

¶ 82. The lead opinion concludes that "the facts are not complex," lead op. at ¶ 26, and therefore it may determine before trial whether public policy considerations preclude liability.

¶ 83. Public policy considerations should not, I believe, be considered at the motion to dismiss stage in this case. Any public policy decision should await the resolution of the facts and circumstances that the lead opinion considers so important. Indeed, it is usually better practice to require a full factual resolution before a court applies the public policy factors. Lead op. at ¶ 26.4

*822¶ 84. According to the lead opinion, this case is going back to the circuit court on the negligent failure to control claim. By waiting to decide the public policy considerations regarding the negligent failure to warn issue after full factual resolution, the court would not be delaying resolution of the dispute or increasing the expenses of litigation.

¶ 85. For the reasons stated, I would not dismiss the claim for negligent failure to warn. I conclude that the public policy factors should be applied first by the circuit court after a full factual resolution.

¶ 86. I am authorized to state that Justices WILLIAM A. BABLITCH, ANN WALSH BRADLEY, N. PATRICK CROOKS, and DIANE S. SYKES join this concurring opinion. Accordingly this concurrence is the opinion of the court on the issue of negligent failure to warn and the lead opinion is the opinion of the court on the issue of negligent failure to control Michael's conduct. Thus the cause is remanded to the circuit court for further proceedings on both of the Gritzners' claims against Roger Buhner.

The lead opinion recognizes that a number of states have allowed a claim for negligent failure to warn in cases with circumstances similar to those in the present case. See lead op. at ¶ 43, n.12.

See also Doe v. Batson, 523 S.E.2d 909 (S.C. Ct. App. 1999) (under facts similar to those in this case, court allows a negligent failure to warn claim against the mother of an adult son who sexually assaulted girls).

In this case, unlike in Kelli T-G v. Charland, 198 Wis. 2d 123, 129, 542 N.W.2d 175 (Ct. App. 1995), it is undisputed that the defendant had a special relationship with Michael and Tara. Both had been entrusted to his care.

For example, owners and occupiers of land may be found negligent if they fail to warn firefighters of hidden perils on their property. See Haubolt v. Union Carbide Corp., 160 Wis. 2d 662, 674-76, 467 N.W.2d 508 (1991); Wright v. Coleman, 148 Wis. 2d 897, 436 N.W.2d 864 (1989); Clark v. Corby, 75 Wis. 2d 292, 298, 249 N.W.2d 567 (1977).

Also, if a passenger in an automobile sees a danger and it is apparent that the driver does not see the danger, the passenger's failure to warn the driver constitutes negligence. See Teas v. Eisenlord, 215 Wis. 455, 253 N.W. 795 (1934); Delmore v. American Fam. Mut. Ins. Co., 118 Wis. 2d 510, 524-25, 348 N.W.2d 151 (1984) (discussing Teas).

A psychotherapist may be negligent for failure to warn a patient about a medication's effect on driving, if it was foreseeable that an accident could result causing harm to the patient or third persons. See Schuster v. Alternberg, 144 Wis. 2d 223, 232-33, 424 N.W.2d 159 (1988). See also State v. Agacki, 226 Wis. 2d 349, 358-59, 595 N.W.2d 31 (Ct. App. 1999) (recognizing that psychotherapists have duty to warn in certain cases).

See Sawyer v. Midelfort, 227 Wis. 2d 124, 141, 595 N.W.2d 423 (1999); Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d *822627, 754, 517 N.W.2d 432 (1994); Schuster v. Alternberg, 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); Boles v. Milwaukee Cty., 150 Wis. 2d 801, 818, 443 N.W.2d 679 (Ct. App. 1989).