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COURT OF APPEALS
DECISION
DATED AND FILED
February 1, 2011
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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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Jason M. Wilson, by his Guardian ad Litem, Steven B. Goff,
and Rene Haselman,
Plaintiffs-Respondents,
v.
Trade Lake Mutual Insurance Company,
Defendant-Appellant,
Group Health Cooperative of Eau
Claire,
Badgercare/Medicaid Managed Care Program, administered by
Security Health Plan of Wisconsin, Inc. and Barron County
Social Services,
Defendants.
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APPEAL
from a judgment of the circuit court for Burnett County: KENNETH
L. KUTz, Judge. Reversed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 BRUNNER, J. In 2003, ten-year-old Jason
Wilson sustained a severe eye injury when a tent stake he was hitting against a
tree broke apart. Mary and Earl Wilson,
Jason’s grandparents, were found causally negligent by a jury for enhanced
injuries he sustained because he did not receive prompt medical attention. Trade Lake Mutual Insurance Company, the Wilsons’ homeowners’
insurer, appeals from the judgment. We
conclude that although the jury verdict is supported by credible evidence,
public policy bars Jason’s recovery because his enhanced injuries are too
remote from the Wilsons’ negligence and too
wholly out of proportion to the Wilsons’
culpability. Accordingly, we reverse.
BACKGROUND
¶2 Jessica LaPierre, one of Jason’s aunts, hosted a social gathering
on a summer weekend in 2003. On
Saturday, Nicole Ruez, Jason’s other aunt, brought him to LaPierre’s home,
where he stayed overnight. During the
clean-up on Sunday, Jason found a tent stake on the ground and began hitting it
against a tree. He tried to break the
stake, which he believed would cause it to fly into another tree in the
yard. Instead, the broken portion struck
him in the eye. The accident occurred
between 1 and 1:30 p.m.
¶3 LaPierre and Ruez sought advice from Jason’s mother, Rene
Haselman. Jason was uncooperative, but LaPierre
and Ruez eventually looked at his eye and saw nothing more than a scratch on
his eyelid. The eye was not red or
bleeding. LaPierre relayed her
observations to Haselman, who hung up and called Cumberland Hospital. Haselman described what LaPierre and Ruez had
seen to the doctor on call, who told Haselman she should bring Jason in
immediately. Haselman, however, decided
not to take action until 5:00 p.m., when she was scheduled to pick Jason
up. Haselman did not tell LaPierre or
Ruez about her conversation with the medical staff at Cumberland Hospital,
nor request that they take Jason to see a medical professional.
¶4 LaPierre and Ruez decided to have Jason’s grandparents, Mary
and Earl Wilson, look at his eye. Neither
of the Wilsons
had medical training. Mary was the first
to inspect Jason’s eye and saw only a cut on his eyelid. She did not pull Jason’s eyelids apart
because he was uncooperative. Earl
Wilson, who was sleeping when Jason arrived, woke up around 3:00 p.m. and was
told what happened. Earl briefly looked
at Jason’s eye, but he too saw only a small cut on the eyelid.
¶5 The true extent of Jason’s injury became apparent after Jason
left his grandparents’ home. Jason
vomited as he and Ruez were leaving to meet his mother around 4:30 p.m. Jason’s stepfather met Ruez about twenty
miles from Haselman’s residence and took Jason the rest of the way. When they arrived, Haselman inspected Jason’s
eye in her driveway. She pulled Jason’s
lower eyelid down and discovered what “looked like a tongue coming out of his
eye.”
¶6 Jason spent the next several hours being examined by medical
staff and traveling between hospitals.
Jason and his mother arrived at Cumberland Hospital
at 6:18 p.m. A physician there
determined his eye had been lacerated and ruptured, requiring surgery. At 7:05 p.m., Jason left Cumberland Hospital
for Children’s Hospital in St. Paul,
Minnesota. Dr. Gary Schwartz arranged Jason’s transfer
and met Jason and Haselman at Children’s Hospital when they arrived at 9:05
p.m. Surgery began at 10:23 p.m.
¶7 Schwartz could not fully repair Jason’s eye during the
surgery. Some of Jason’s iris was
deposited outside the wound, and Schwartz determined that it had been outside
Jason’s eye too long. Because of the
lapse of time, approximately one-quarter of Jason’s iris had become ischemic,
or dead, and had to be removed.
¶8 Jason and Haselman brought suit against the Wilsons’
homeowners’ insurer, Trade Lake, on the theory that the Wilsons’ failure to discover the serious
nature of his injury and procure immediate medical attention enhanced the injury
Jason suffered in the initial accident.
A jury allocated thirty percent of Jason’s total damages to the initial
accident and seventy percent to the failure to procure timely professional
medical treatment. The jury then
apportioned responsibility for the latter amount as follows: a total of twenty-five percent to Jason’s
aunts, thirty-five percent to his mother, thirty percent to Mary Wilson, and ten
percent to Earl Wilson. Thus, the jury
found the Wilsons,
in total, responsible for forty percent of Jason’s enhanced injuries.
DISCUSSION
¶9 Trade
Lake first challenges
the sufficiency of the evidence supporting the jury’s negligence finding. Our
standards of review are highly deferential to jury verdicts. We will affirm the verdict if there is any
credible evidence to support it. Roehl
Transp., Inc. v. Liberty
Mut. Ins. Co., 2010 WI 49, ¶118, 325 Wis. 2d 56, 784 N.W.2d 542. Indeed, we will uphold the verdict even if
there is contradictory evidence that appears stronger and more convincing. Weiss v. United Fire & Cas. Co.,
197 Wis. 2d
365, 389-90, 541 N.W.2d 753 (1995). We
view all evidence in the light most favorable to the verdict, and we accept all
reasonable inferences the jury may have drawn from that evidence. Roehl Transp., 325 Wis. 2d 56, ¶118.
¶10 Not all elements of Jason’s negligence claim are in
dispute. To recover for a defendant’s
negligence, the plaintiff must establish four elements: “(1) A duty
of care on the part of the defendant; (2) a breach of that duty; (3) a causal
connection between the conduct and the injury; and (4) an actual loss or damage
as a result of the injury.” Rockweit
v. Senecal, 197 Wis. 2d
409, 418, 541 N.W.2d 742 (1995). Here, Trade Lake
attacks only the sufficiency of the evidence supporting the duty and causation
elements.
¶11 Wisconsin
broadly defines the concept of duty. Schuster
v. Altenberg, 144 Wis. 2d
223, 238 n.3, 424 N.W.2d 159 (1988). Put
simply, every person has a duty to exercise ordinary care in all of his or her
activities. Gritzner v. Michael R.,
2000 WI 68, ¶20, 235 Wis. 2d
781, 611 N.W.2d 906. Thus, we do not usually
preclude a defendant’s liability by finding that he or she had no duty. See Smaxwell v. Bayard, 2004 WI 101,
¶33, 274 Wis. 2d
278, 682 N.W.2d 923 (determination to deny liability essentially one of public
policy rather than duty). The
plaintiff’s burden is minimal: a plaintiff must show only that the
defendant’s act or omission may have caused foreseeable harm to someone. Miller v. Wal-Mart Stores, Inc., 219
Wis. 2d
250, 260, 580 N.W.2d 233 (1998).
¶12 This formulation of the duty element is consistent with the
jury instruction given in this case, Wis JI—Civil 1397. That instruction recites the “Good Samaritan”
rule adopted by our supreme court in American Mutual Liability Insurance Co. v.
St. Paul Fire & Marine Insurance Co., 48 Wis. 2d 305, 313, 179
N.W.2d 864 (1970) (citing Restatement
(Second) of Torts § 324A (1965)).
“Essentially, [the Good Samaritan] rule requires one who voluntarily
assumes a duty that is necessary for the protection of another to exercise
ordinary care in the performance of the duty, if the circumstances are such
that the failure to do so increases the risk of harm to another.” Dixson v. Wisconsin Health Org. Ins. Corp.,
2000 WI 95, ¶22, 237 Wis. 2d
149, 612 N.W.2d 721.
¶13 Based on the evidence presented, the jury could reasonably
conclude that the Wilsons
owed a duty of care. Jason’s aunts
requested the Wilsons’
opinions on his injury, which they agreed to provide. When the Wilsons agreed to provide advice, they
assumed an obligation to use ordinary care when making their
recommendations. The delay in obtaining
necessary medical treatment, and corresponding increase in the risk of harm to
Jason, could be viewed as a foreseeable consequence of their failure to
exercise ordinary care.
¶14 Trade Lake next claims there was insufficient evidence of a
causal connection between the Wilsons’
conduct and Jason’s injury. The
causation element requires the plaintiff to show that an “unbroken sequence of
events” was the cause-in-fact of the accident producing the injury. Fondell v. Lucky Stores, Inc.,
85 Wis. 2d
220, 227-28, 270 N.W.2d 205 (1978). In
other words, we assess “whether the negligence was a substantial factor in
producing the injury.” Miller,
219 Wis. 2d
at 261-62.
¶15 Here again, we conclude Jason presented credible evidence that
the Wilsons’
failure to fully examine his eye and get professional medical care was a
substantial factor in producing the enhanced injuries. At trial, Dr. Schwartz repeatedly stated that
he probably could have saved Jason’s iris tissue if Jason had been in the
operating room three hours earlier.
Schwartz clarified that meant he had a “greater than 50 percent chance
of saving it.” When asked about the
likelihood of saving the iris tissue at two-and-one-half hours earlier, Schwarz
replied, “Then we’re probably less than 50 percent. … [T]hree hours is probably the important line. If you’re forcing me to draw a line, three
hours is probably it.” According to Schwartz, Jason would have
needed to be in surgery by 7:30 p.m.
¶16 Consequently, Jason attempted to show that it was possible for
him to have been in surgery by 7:30 p.m.
Both Mary and Earl Wilson had evaluated Jason’s eye shortly after 3:00
p.m. Jason elicited testimony that the
nearest hospital to the Wilsons’ residence was Grantsburg Hospital,
which was approximately twenty-five minutes away. Jason assumed he would have spent the same
amount of time at Grantsburg Hospital as at Cumberland,
about forty-seven minutes, before leaving for Children’s Hospital in Minnesota. That would have placed Jason’s departure time
from Grantsburg at about 4:30 p.m. The
trial court took judicial notice of the driving time between Grantsburg and
Children’s Hospital, one hour and nineteen minutes, which would have placed
Jason’s arrival at Children’s Hospital at 5:49 p.m. Jason assumed a static examination and preparatory
period at Children’s Hospital—seventy-eight minutes—with Jason entering surgery
at about 7:07 p.m. Thus, we agree the
jury had before it credible evidence that the Wilsons’ failure was a “substantial factor” in
producing Jason’s enhanced injuries.
¶17 It does not follow, however, that the Wilsons are automatically liable. Even when a plaintiff has proven
cause-in-fact, we may still conclude that cause is not legally sufficient to
allow recovery. Fandrey v. American Fam. Mut.
Ins. Co., 2004 WI 62, ¶13, 272 Wis. 2d
46, 680 N.W.2d 345. When we deny
liability in that manner, we do so under the guise of “public policy,” but the
inquiry is “inexorably tied to legal cause.”
Id.,
¶15. In other words, “‘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.’” Tesar v. Anderson, 2010 WI App 116, ¶11,
329 Wis. 2d 240, 789 N.W.2d 351 (quoting Palsgraf v. Long Island R. Co., 162
N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting)).
¶18 Although the public policy inquiry is necessarily open-ended, see Tesar,
789 N.W.2d 351, ¶13, our supreme court has provided guidance in the form of six
factors that may limit the tortfeasor’s liability. We may bar recovery when:
(1) the injury is too remote from the negligence; (2)
the recovery is wholly out of proportion to the culpability of the negligent
tort-feasor; (3) the harm caused is highly extraordinary given the negligent
act; (4) recovery would place too unreasonable a burden on the negligent tort-feasor;
(5) recovery would be too likely to open the way to fraudulent claims; [or] (6)
recovery would enter into a field that has no sensible or just stopping point.
Behrendt v. Gulf Underwriters
Ins. Co., 2009 WI 71, ¶29, 318 Wis. 2d
622, 768 N.W.2d 568 (quotations omitted).
A determination that any one of the factors applies precludes
liability. Cole v. Hubanks, 2004 WI
74, ¶8, 272 Wis. 2d
539, 681 N.W.2d 147. The factors are
designed to elicit those circumstances in which “it would shock the conscience
of society to impose liability.” Fandrey, 272 Wis. 2d
46, ¶15.
¶19 Imposing liability in this case would shock our judicial
conscience. Jason’s injury is too remote
from the Wilsons’ negligence and wholly out of
proportion to the Wilsons’
culpability.
¶20 We first examine the proximity of the Wilsons’ negligence to Jason’s injury. This public policy factor focuses on the
relationship between the negligence and the injury, barring recovery for those
injuries that are too remote. “Remote”
in this context means “removed or separated from the negligence in time, place,
or sequence of events.” Beacon Bowl, Inc. v. Wisconsin Elec. Power
Co., 176 Wis. 2d 740, 762,
501 N.W.2d 788 (1993).
¶21 Here,
the jury’s finding of causal negligence depended on the occurrence and timing
of so many independent events that it would shock our judicial conscience to
hold the Wilsons
liable for Jason’s injuries. Jason’s
case rested entirely on Dr. Schwartz’s testimony that Jason’s iris could have
been saved if surgery commenced three hours earlier. Although Jason sufficiently showed that he
could have been in surgery by 7:30 p.m., his theory required the jury to assume
the Wilsons would have obtained immediate medical attention and then speculate
about every subsequent event, including: that Jason would have been
taken to Grantsburg Hospital instead of Cumberland Hospital, where Jason was
actually taken; that Jason would have spent the same amount of time at
Grantsburg Hospital as he did at Cumberland; that personnel at Grantsburg would
have recommended that Jason be taken to Children’s Hospital in St. Paul; that
it would have taken approximately an hour and nineteen minutes to arrive in St.
Paul by car from Grantsburg; and that Jason would have spent slightly over an
hour at Children’s Hospital before entering surgery. A slight variance in even the smallest detail
of this timeline could have caused Jason’s surgery to fall outside the
three-hour “window of opportunity” established by Schwartz. Because the jury’s verdict hinges on the
occurrence and timing of so many uncertain events, we conclude that Jason’s
injury is too remote from the Wilsons’
negligence.
¶22 Jason’s recovery is also wholly out of proportion to the Wilsons’ culpability. The Wilsons’
only conceivable fault was their failure to discover the seriousness of Jason’s
injury and get him swift medical attention.
But Jason’s mother—who is also a plaintiff in this suit—had already been
advised by medical professionals to bring Jason in immediately. We cannot ignore her disregard for that advice. The omissions she and Jason now complain of
might have been avoided if she had told Jason’s relatives about her call with Cumberland Hospital. Permitting the most culpable individual to
shift the blame for Jason’s enhanced injuries to those who were the most poorly
situated to prevent them shocks our judicial conscience. See Fandrey, 272 Wis. 2d
46, ¶15.
By the Court.—Judgment reversed.
Not
recommended for publication in the official reports.