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Duty of care remains thorny issue

By: dmc-admin//July 20, 2009//

Duty of care remains thorny issue

By: dmc-admin//July 20, 2009//

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Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y.1928), may be one of the first torts cases every law student studies.

But more than 80 years later, the role of duty as an element in a negligence case remains one of the thorniest issues in Wisconsin law.

And two Wisconsin Supreme Court cases decided July 9 -– generating five opinions in total discussing the issue -– don’t resolve that role.

On one point, the justices agree: Wisconsin continues to adhere, at least nominally, to the minority view in Palsgraf — that everyone owes a duty to the world at large.

However, a plaintiff can still lose on the grounds that the defendant did not owe a duty to the plaintiff under the circumstances of the case.

That was the holding in the first case, Hocking v. City of Dodgeville, in which downhill property owners sued their uphill neighbors, claiming that they had a duty to abate a nuisance — surface water running off their properties and flooding the downhill neighbors’ basement.

The majority opinion, by Justice Annette Kingland Ziegler, concluded that the uphill property owners owed no duty to their neighbors.

The majority applied the “reasonable use rule,” under which a property owner may make reasonable use of his land, even though the flow of surface waters is altered and causes some harm to others, provided the interference with the flow of water is not unreasonable.

Here, the court found, the uphill owners merely purchased homes and lived in them, but did not do anything to cause any harm.

“They are living the American dream by owning a home. Their conduct -– living in their home -– does not deviate from typical behavior,” Justice Ziegler wrote. Finding no duty of care, the majority declined to consider breach of duty or public policy factors.

But Chief Justice Shirley S. Abrahamson wrote a concurrence, joined by Justice Ann Walsh Bradley, concluding instead that the reason the uphill owners are not liable is because there is no way for them to abate the nuisance without enduring unreasonable hardship and expense.

Patricia J. Epstein, of Bell, Gierhart & Moore SC, who represented some of the uphill owners, suggested that the difference between the opinions could be semantic. “They may be saying the same thing, but coming at it from different angles,” Epstein said.

Amy B.F. Tutwiler, who also represented the uphill owners, said, “Duty is still a legitimate step in analyzing negligence. Even if there is a duty to the world at large, you must look at the circumstances of the case.”

In the second case, Behrendt v. Gulf Underwriters Insurance Co., Kenneth Behrendt was injured when an air tank exploded. He sued the employer of the person who built the tank, alleging negligence and vicarious liability, even though the employee built the tank as a side job, rather than as part of his employment.

In this case, the Supreme Court held that the employer did owe a duty to the plaintiff, but nevertheless held that summary judgment was properly granted the employer on foreseeability grounds.

Writing for the majority, Justice N. Patrick Crooks acknowledged that there are cases when a negligence claim fails because the duty of care does not encompass the acts that caused the harm.

But, the court held that the employer did have a duty to exercise ordinary care — specifically, not allowing its policy of permitting employees to do side jobs to create an unreasonable risk of injury.

The court held that the chain of events leading to injury was not foreseeable, and therefore, there was no breach. The employee had violated the employer’s policy against making air tanks on the side, and he used materials that the employer had specifically altered so they couldn’t be used to make air tanks.

Turning to vicarious liability, the court held summary judgment was proper for the employer on this claim, too, because employee side jobs produce no benefit for the employer.

Justice Patience Drake Roggensack wrote a concurring opinion, joined by Justices Annette Kingsland Ziegler and Michael J. Gableman, addressing the duty element.

“Our adoption of the minority view in Palsgraf sometimes applies under the facts presented and sometimes it is a red herring that clouds the negligence analysis,” Roggensack began.

“The minority rationale of Palsgraf never concludes or implies that duty is no longer an element of a negligence claim.”

Focusing on whether the alleged act of negligence is an act or an omission, Roggensack concluded that the complaint here alleged an act — creating a policy regarding side jobs — and therefore, the employer had a duty to exercise reasonable care in fashioning that policy.

However, because the policy precluded employees from manufacturing air tanks as side jobs, the concurrence concluded the employer acted reasonably and did not breach that duty.

Chief Justice Abrahamson also wrote a concurrence, to address Roggensack’s concurrence.

Abrahamson rejected the act/omission distinction articulated by Roggensack as misleading, stating, “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.”

John J. Laffey, who represented the defendants, praised the ruling as clarifying the law regarding duty in Wisconsin, by addressing foreseeability as part of the element of breach, rather than public policy or duty.

The opinion is the first by the Court to cite Restatement (Third) of Torts: Liability for Physical Harm sec. 7, and all three opinions cite it with approval.

The lead opinion specifically emphasized the following: “A lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination.” Restatement (Third) of Torts: Liability for Physical Harm 7(a), cmt. j.

“In the big picture, it helps evaluate cases,” Laffey said. “It puts foreseeability more in the main part of the negligence determination -– breach of duty -– rather than at the end -– the public policy analysis.”

The cases are Hocking v. City of Dodgeville, No. 2007AP1754 & Behrendt v. Gulf Underwriters Ins. Co., No. 2006AP2910.

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