COURT OF APPEALS DECISION DATED AND FILED July 22, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal Nos. |
2009AP1710 2009AP1711 |
2009CV655 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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No. 2009AP1710 Estate of Brittany Zimmerman, Jean Zimmerman, and Kevin Zimmerman, Plaintiffs, Jordan Gonnering,
Plaintiff-Appellant, v.
Defendants-Respondents. |
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No. 2009AP1711 Jordan Gonnering,
Plaintiff-Appellant, v. Russ Endres; Carl Van Rooy; Russell Endres & Carl Van Rooy d/b/a “Endres, Russell, Carl Van Rooy,” a partnership; Co., Inc.; General Casualty Insurance Company; Mutual Ins. Co.,
Defendants-Respondents. |
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APPEAL
from orders of the circuit court for
Before Vergeront, Lundsten and Fitzpatrick,[1] JJ.
¶1 FITZPATRICK, J. Jordan Gonnering appeals the dismissal of his claims in two separate lawsuits relating to the death of his fiancée, Brittany Zimmerman. Gonnering contends that both circuit courts erred in granting motions to dismiss for failure to state a claim upon which relief can be granted. Gonnering found his fiancée murdered in the apartment they shared. He alleges he has viable claims as a bystander for negligent infliction of emotional distress against defendants Dane County and Rita Gahagan for the improper handling of the 911 call from Zimmerman, and against the owners and managers of the rental unit (and their insurers) for a lack of security which led to the murder of Zimmerman.
¶2 We conclude that Gonnering, as a fiancé, is not in a category
of persons who may state a bystander claim for negligent infliction of
emotional distress.
BACKGROUND
¶3 The portions of the record relevant to these issues are the complaints and answers. Solely for the purpose of deciding the questions of law now before the court, the allegations of the complaints are accepted as true.
¶4 The complaints allege the following. Jordan Gonnering and Brittany Zimmerman were
engaged to be married and shared a household together in
¶5 In one suit, Gonnering alleges that
¶6 In the circuit court, the defendants filed motions to dismiss
Gonnering’s complaints for failure to state a claim upon which relief can be
granted. Relying on Bowen and other
DISCUSSION
¶7 On appeal, Gonnering renews his argument that he has stated a
cause of action upon which relief can be granted on his bystander claim for
negligent infliction of emotional distress. In the alternative, Gonnering argues that this
court should certify to the Wisconsin Supreme Court the issue of whether a
fiancé is in a category of persons who can state such a claim. The defendants argue that, according to Bowen,
the fiancé relationship is outside the relationships denominated by the supreme
court which can form a basis for a bystander claim for negligent infliction of
emotional distress.[4]
The supreme court has denominated the
types of relationships which can form the basis for a bystander claim for
negligent infliction of emotional distress. Gonnering’s relationship with his fiancée is
not within the limited categories of relationships set forth under
I. Standard of Review
¶8 A motion to dismiss for failure to state a claim tests
whether a complaint is legally sufficient to state a cause of action for which
relief can be granted. Tietsworth
v. Harley-Davidson, Inc., 2004 WI 32, ¶11, 270
¶9 The issue of whether a complaint states a claim is a question
of law, and we review the matter de novo.
¶10 The question in this appeal is whether Gonnering may bring a
claim for negligent infliction of emotional distress arising from him finding
Zimmerman murdered. It is appropriate
that this issue be resolved in the context of a motion to dismiss. As is noted in the next sections, the question
is resolved by an application of public policy considerations. There are circumstances where a jury is to
address questions of negligence and cause-in-fact before a court addresses
public policy concerns associated with legal causation. Kleinke v. Farmers Coop. Supply, 202
II. Applicable Authorities
¶11 Holdings of the Wisconsin Supreme Court set forth the framework
to resolve the issue in this appeal. Those
cases include Bowen, 183
¶12 In Bowen the circuit court dismissed Sharon Bowen’s claim for
negligent infliction of emotional distress, which arose from her seeing the
immediate aftermath of her son’s fatal injuries allegedly caused by a defendant’s
negligent use of a motor vehicle. The court
of appeals affirmed the dismissal and the supreme court reversed. Bowen, 183
¶13 In Bowen the supreme court found that:
The tort of negligent infliction of emotional distress has troubled this court and other courts for many years….
Historically this court and other courts have been reluctant to compensate plaintiffs for emotional suffering. While courts are willing to compensate for emotional harm incident to physical injury in a traditional tort action, they have been loath to recognize the right to recover for emotional harm alone.
¶14 Bowen included a lengthy discussion of the history of the cause
of action of negligent infliction of emotional distress in
Claimants and courts need a framework for evaluating a bystander’s claims of negligent infliction of emotional distress. The framework should be free of artificial, vague and inconsistent rules, yet should allow plaintiffs to recover for negligently inflicted severe emotional distress while protecting tortfeasors from spurious claims, from claims concerning minor psychic and emotional shocks, and from liability disproportionate to culpability.
¶15 Bowen held that a plaintiff claiming negligent infliction of
emotional distress, regardless of the fact situation in which a claim arises,
must prove the following elements: (1) the defendant’s conduct fell below the
applicable standard of care; (2) the plaintiff suffered an injury; and (3) the
defendant’s conduct was a cause-in-fact of the plaintiff’s injury.
¶16 The second of those factors is dispositive. Notably, even though Bowen involved a parent/child relationship only, the Bowen court listed other qualifying relationships and explained why it was drawing this line:
The court concludes that a tortfeasor may be held liable for negligent infliction of emotional distress on a bystander who is the spouse, parent, child, grandparent, grandchild or sibling of the victim. We agree that emotional trauma may accompany the injury or death of less intimately connected persons such as friends, acquaintances, or passersby. Nevertheless, the suffering that flows from beholding the agony or death of a spouse, parent, child, grandparent, grandchild or sibling is unique in human experience and such harm to a plaintiff’s emotional tranquility is so serious and compelling as to warrant compensation. Limiting recovery to those plaintiffs who have the specified family relationships with the victim acknowledges the special qualities of close family relationships, yet places a reasonable limit on the liability of the tortfeasor.
Bowen,
183
¶17 Seven years later, in Rabideau, the Wisconsin Supreme
Court rejected an attempt to expand Bowen beyond the relationships
delineated. Although the facts in Rabideau
are obviously different from the facts in this case, Rabideau reaffirmed the
holding of Bowen regarding the relationships which may form the basis for
a bystander negligent infliction of emotional distress claim in
We agree, as we must, that humans form important emotional connections that fall outside the class of spouse, parent, child, grandparent, grandchild or sibling. We recognized this in Bowen, and repeat here, that emotional distress may arise as a result of witnessing the death or injury of a victim who falls outside the categories established in tort law. However, the relationships between a victim and a spouse, parent, child, grandparent, grandchild or sibling are deeply embedded in the organization of our law and society. The emotional loss experienced by a bystander who witnessed the negligent death or injury of one of these categories of individuals is more readily addressed because it is less likely to be fraudulent and is a loss that can be fairly charged to the tortfeasor. The emotional harm occurring from witnessing the death or injury of an individual who falls into one of these relationships is serious, compelling and warrants special recognition.
¶18 Plaintiff relies on numerous out-of-state cases. While other states may balance various factors
in the same manner or a different manner than
¶19 In summary, Wisconsin law has not retreated from the requirement that, in a bystander negligent infliction of emotional distress claim, the relationship between the victim and the plaintiff be within one of the clearly-delineated categories: spouses, parent-child, grandparent-grandchild, or siblings. If not, the claim must be dismissed.
III. Application of Authorities
¶20 With that background and framework in mind, we address Gonnering’s
arguments. Gonnering argues that Bowen
(and later cases) did not decide whether a fiancé has a viable bystander negligent
infliction of emotional distress claim and, as a result, we should find that he
has a viable cause of action. It is true
that, in Bowen, the supreme court did not list every possible type of
relationship and then expressly state whether each of those relationships could
be a basis for a viable bystander claim for negligent infliction of emotional
distress. What Bowen did was to specify
that the victim and the plaintiff must be related as spouses, parent-child,
grandparent-grandchild or siblings. Bowen,
183
¶21 Bowen, and later Rabideau, explained that other
relationships exist but the denominated relationships are “unique in human
experience.” Limiting recovery to those
plaintiffs who have those specified family relationships with the victim
acknowledges those special qualities and places a reasonable limit on the
liability of a tortfeasor. Bowen,
183
¶22 “Fiancé” is not a new type of relationship which has come into
being since Bowen. The facts
presented by Gonnering are not a novel fact situation unanticipated by Bowen
and later cases. While not explicitly
stated in Bowen and later cases, there is no question that the
relationship of fiancé cannot be the basis for a bystander negligent infliction
of emotional distress claim in
¶23 Gonnering next argues that the holding of Bowen is not binding in
this appeal since Bowen twice noted that it was reviewing the public policy
factors “in this case” and “in this fact situation.” Bowen, 183
¶24 Finally, in the alternative, Gonnering requests that we certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61.[7] The question in this appeal is controlled by the holdings of the supreme court. We discern no reason to believe that the court was not cognizant of other relationships, such as fiancé/fiancée, when it formulated the exclusive list of qualifying relationships. For that reason, we decline to certify this case to the supreme court.
CONCLUSION
¶25 We conclude that Gonnering’s complaints do not state causes of action upon which relief can be granted. We affirm the orders of the circuit courts dismissing Gonnering’s complaints.
By the Court.—Orders affirmed.
Not recommended for publication in the official reports.
[1] Rock County Circuit Court Judge Michael R. Fitzpatrick is sitting by special assignment pursuant to the Judicial Exchange Program.
[2]
“Fiancé” (masculine) and “fiancée” (feminine) are defined as “a betrothed
person.” 5
[3] On July 17, 2009, the two cases were consolidated for purposes of appeal.
[4] The landlords also argue that Gonnering’s claims against them should be dismissed. They claim it would be unprecedented to have an intentional act of a third person be a basis for a bystander negligent infliction of emotional distress claim when the intentional act (here, the act of the person who murdered Zimmerman) is an alleged cause of the emotional distress along with the negligent acts of the landlords. We need not reach the alternative argument of the landlords.
[5] The
public policy considerations to be reviewed by Wisconsin courts are: (1)
whether the injury is too remote from the negligence; (2) whether the injury is
wholly out of proportion to the culpability of the negligent tortfeasor; (3)
whether in retrospect it appears too extraordinary that the negligence should
have brought about the harm; (4) whether allowance of recovery would place an
unreasonable burden on the negligent tortfeasor; (5) whether allowance of
recovery would be too likely to open the way to fraudulent claims; or (6)
whether allowance of recovery would enter a field that has no sensible or just
stopping point. Bowen v. Lumbermens Mut. Cas. Co.,
183
[6]
Gonnering argues that a footnote in Bowen should be a basis for
distinguishing that case. Specifically,
then Justice (now Chief Justice) Abrahamson stated in a footnote: “The author
of the opinion would allow recovery when the plaintiff can prove that the victim
is a loved one, that is, when the plaintiff and the victim have a relationship
analogous to one of the relationships specified.” Bowen, 183
[7] On January 12, 2010, the Wisconsin Supreme Court denied Gonnering’s petition to bypass the court of appeals pursuant to Wis. Stat. Rule 809.60.