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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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No.
94-0074
STATE OF WISCONSIN : IN SUPREME COURT
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Sheri Gould, Scott Gould, and St. Croix County, Plaintiffs-Respondents-Petitioners, v. American Family Mutual Insurance Company, Defendant-Appellant-Cross
Petitioner. |
FILED JAN 30, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
REVIEW of a decision of the Court of
Appeals. Affirmed in part, reversed
in part, and cause remanded with directions.
ANN
WALSH BRADLEY, J. Both the plaintiffs, Sheri and Scott Gould,
and the defendant, American Family Mutual Insurance Company, seek review of a
court of appeals' decision which reversed and remanded a judgment of the
Circuit Court of St. Croix County, Eric J. Lundell, Judge. The judgment imposed liability against
American Family for personal injuries caused by its insured, Roland Monicken,
who was institutionalized suffering from Alzheimer's disease. The Goulds assert that the court of appeals
erred by abandoning the objective reasonable person standard and adopting a
subjective mental incapacity defense in negligence cases. American Family challenges the need for a
remand.
While
we affirm the court of appeals' reversal of the judgment, we do so on other
grounds. We hold that an individual
institutionalized, as here, with a mental disability, and who does not have the
capacity to control or appreciate his or her conduct cannot be liable for
injuries caused to caretakers who are employed for financial compensation. Because the Goulds, in essence, admit that
it would be impossible to rebut the evidence of Monicken's incapacity, we
reverse the part of the court of appeals' decision remanding the case to the
trial court for a determination of Monicken's capacity.
Monicken
was diagnosed with Alzheimer's disease after displaying bizarre and irrational
behavior. As a result of his
deteriorating condition, his family was later forced to admit him to the St.
Croix Health Care Center. Sheri Gould
was the head nurse of the center's dementia unit and took care of him on
several occasions.
Monicken's
records from St. Croix indicate that he was often disoriented, resistant to
care, and occasionally combative. When
not physically restrained, he often went into other patients' rooms and
sometimes resisted being removed by staff.
On one such occasion, Gould attempted to redirect Monicken to his own
room by touching him on the elbow. She
sustained personal injuries when Monicken responded by knocking her to the
floor.[1]
Gould
and her husband brought suit against Monicken and his insurer, American
Family. American Family admitted
coverage and filed a motion for summary judgment, arguing that Monicken was
incapable of negligence as a matter of law due to his lack of mental
capacity. An affidavit of Monicken's
treating psychiatrist filed in support of the motion stated that Monicken was
unable to appreciate the consequences of his acts or to control his behavior. The trial court denied American Family's
summary judgment motion and the liability portion of the bifurcated trial was
tried to a jury.
After
presenting its case, American Family proposed giving instructions and a special
verdict that directed the jury to decide, as a threshold question of law,
whether Monicken had the mental capacity to understand and appreciate the duty
to act with reasonable care at the time of the incident based on his
Alzheimer's disease. The trial court
denied this request. Pursuant to Wis
JI—Civil 1021, the court instructed the jury to disregard any evidence related
to Monicken's mental condition and to determine his negligence under the
objective reasonable person standard.[2] The jury found Monicken totally negligent
and a judgment of liability was entered against American Family.[3]
The
court of appeals granted American Family's interlocutory appeal and reversed
the judgment, holding that "a person may not be held civilly liable where
a mental condition deprives that person of the ability to control his or her
conduct." Gould v. American
Family Mut. Ins. Co., 187 Wis. 2d 671, 673, 523 N.W.2d 295 (Ct. App.
1994). The court remanded the case
"for a determination of whether there is a disputed issue of material fact
as to whether Monicken's mental condition prevented him from controlling or
appreciating the consequences of his conduct." Id. at 680.
Both
the Goulds and American Family petitioned this court for review. The Goulds argue that the court of appeals
abandoned clear, long-standing precedent in determining that mental disability
may constitute a defense to negligence.
American Family agrees with the court of appeals' holding, but
petitioned for cross review to reverse the court's remand mandate. American Family asserts that a remand is
unnecessary because Monicken's mental incapacity was virtually conceded at
trial.
It
is a widely accepted rule in most American jurisdictions that mentally disabled
adults are held responsible for the torts they commit regardless of their
capacity to comprehend their actions;
they are held to an objective reasonable person standard. See generally, Restatement (Second)
of Torts § 283B (1965); W. Page Keeton
et al., Prosser and Keeton on the Law of Torts, § 135 (1984). Legal scholars trace the origins of this
rule to an English trespass case decided in 1616, at a time when strict
liability controlled. Id. at
1072, citing Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616).
When
fault-based liability replaced strict liability, American courts in common law
jurisdictions identified the matter as a question of public policy and
maintained the rule imposing liability on the mentally disabled. Although early case law suggested that
Wisconsin followed this trend,[4]
this court specifically adopted the common law rule and the public policy
justifications behind it in German Mut. Fire Ins. Soc'y v. Meyer, 218
Wis. 381, 385, 261 N.W. 211 (1935).
In Meyer, the defendant was criminally
charged with arson to a barn but was committed to a mental hospital after he
was found to be insane. In the civil
claim filed by the insurer who covered the loss, the defendant pled his
insanity as a defense. Meyer,
218 Wis. at 382-85. The court primarily
relied on cases from other jurisdictions to conclude that insanity was not a
defense for tort liability. Id.
at 385-90.
In
doing so the court quoted with approval the following statement of the general
rule and public policy rationale behind it:
It is the well settled rule that a person non
compos mentis is liable in damages to one injured by reason of a tort
committed by him unless evil intent or express malice constitutes an essential
element in the plaintiff's recovery.
This rule is usually considered to be based on the principle that where
a loss must be borne by one of two innocent persons, it shall be borne by him
who occasioned it, and it has also been held that public policy requires the
enforcement of the liability in order that those interested in the estate of
the insane person, as relatives or otherwise, may be under inducement to
restrain him and that tort-feasors may not simulate or pretend insanity to
defend their wrongful acts causing damage to others. . . .
Id. at 385 (quoted source omitted). Meyer forms the basis of the present
day jury instruction concerning the primary negligence of the mentally ill, Wis
JI—Civil 1021.
This
court did not have occasion to address the issue again until Breunig v.
American Family Ins. Co., 45 Wis. 2d 536, 173 N.W.2d 619 (1970). In Breunig, Erma Veith was overcome
with a mental delusion while driving and crossed the center line of a roadway,
striking the plaintiff's vehicle. The
plaintiff sued Veith's automobile liability insurer, and a jury returned a
verdict finding her causally negligent on the theory that she had knowledge or
forewarning of her mental delusions. Id.
at 538.
On
appeal, the insurer argued that Veith could not be negligent as a matter of law
because she was unable to drive with a conscious mind based on the sudden
mental delusion. This court created a
limited exception to the common law rule, holding that insanity could be a
defense in the rare case "where the [person] is suddenly overcome without
forewarning by a mental disability or disorder which incapacitates him from
conforming his conduct to the standards of a reasonable man under like
circumstances." Id. at
543. However, because this court
concluded that there was sufficient evidence for the jury to find that Veith
had forewarning of the mental delusions, she was not entitled to use her
condition as a defense. Id. at
545.
The
court of appeals in the present case relied on expansive dicta in Breunig
to hold that Breunig overruled Meyer.[5] It interpreted Breunig as a turning
point in the law. See Gould,
187 Wis. 2d at 677-78. We
disagree. In contrast to the broad
dicta found in Breunig, the actual holding was very limited:
All we hold is
that a sudden mental incapacity equivalent in its effect to such physical
causes as a sudden heart attack, epileptic seizure, stroke, or fainting should
be treated alike and not under the general rule of insanity.
Breunig, 45 Wis. 2d at 544. Breunig was not a turning point in
the development of the common law, but rather it was a limited exception to the
Meyer rule based on sudden mental disability.
The
court of appeals erroneously perceived the underlying premise of Breunig
to be that a person should not be held negligent where a mental disability
prevents that person from controlling his or her conduct. Gould, 187 Wis. 2d at 678. By limiting its holding to cases of sudden
mental disability, the Breunig court chose not to adopt that broad
premise. We also decline to do so.
We
are concerned that the adoption of the premise, as set forth by the court of
appeals, would entail serious administrative difficulties. Mental impairments and emotional disorders
come in infinite types and degrees. As
the American Law Institute recognized in its Restatement of Torts, a legitimate
concern in formulating a test for mentally disabled persons in negligence cases
is "[t]he difficulty of drawing any satisfactory line between mental
deficiency and those variations of temperament, intellect and emotional balance
which cannot, as a practical matter, be taken into account in imposing liability
for damage done." Restatement
(Second) of Torts, § 283B, cmt. b.1.
The
difficulties encountered by the trier of fact in determining the existence,
nature, degree, and effect of a mental disability may introduce into the civil
law some of the issues that currently exist in the insanity defense in criminal
law. We are wary of establishing a
defense to negligence based on indeterminate standards of mental disability
given the complexities of the various mental illnesses and the increasing rate
at which new illnesses are discovered to explain behavior. See, e.g., State v. Morgan,
195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995) (discussing relevance of expert
testimony regarding post-traumatic stress disorder based on defendant's
"psycho-social" history).
Further,
while the traditional public policy rationale relied on by this court in Meyer
in support of the common law rule are subject to criticism,[6]
we remain hesitant to abandon the long-standing rule in favor of a broad rule
adopting the subjective standard for all mentally disabled persons. Generally, the public policy rationale, in
varying degrees, remain legitimate concerns. Accordingly, we turn our
discussion to how those rationale apply to the facts before us.
American
Family does not dispute that Monicken committed an act that was a substantial
factor in causing Gould's injury.
Rather, it asserts that Monicken cannot be held liable for his alleged
negligence as a matter of law based on his lack of mental capacity.
Even
though the jury determined that Monicken was negligent and that his negligence
was a cause of the plaintiff's injuries, liability does not necessarily
follow. Public policy considerations
may preclude liability. Coffey v.
Milwaukee, 74 Wis. 2d 526, 540-41, 247 N.W.2d 132 (1976). See also Morgan v. Pennsylvania
General Ins. Co., 87 Wis. 2d 723, 737, 275 N.W.2d 660 (1979). Whether public policy considerations should
preclude liability in this instance is a question of law which we review de
novo. Rockweit v. Senecal,
No. 93-1130, op. at 15 (S. Ct. Dec. 20, 1995).
One
recognized public policy reason for not imposing liability despite a finding of
negligence is that allowance of recovery would place an unreasonable burden on
the negligent tortfeasor. Morgan,
87 Wis. 2d at 737. As explained in
detail below, this court concludes that the circumstances of this case totally
negate the rationale behind the Meyer rule imposing liability on the
mentally disabled, and therefore application of the rule would place an
unreasonable burden on the institutionalized mentally disabled tortfeasor.
The
first rationale set forth in Meyer is that "where a loss must be
borne by one of two innocent persons, it shall be borne by him who occasioned
it." Meyer, 218 Wis. at
385. The record reveals that Gould was
not an innocent member of the public unable to anticipate or safeguard against
the harm when encountered. Rather, she
was employed as a caretaker specifically for dementia patients and knowingly
encountered the dangers associated with such employment. It is undisputed that Gould, as head nurse
of the dementia unit, knew Monicken was diagnosed with Alzheimer's disease and
was aware of his disorientation and his potential for violent outbursts. Her own notes indicate that Monicken was
angry and resisted being removed from another patient's room on the day of her
injury.
By
analogy, this court in Hass v. Chicago & N.W. Ry., 48 Wis. 2d
321, 326-27, 179 N.W.2d 885 (1970), relied on public policy considerations to
exonerate negligent fire-starters or homeowners from liability for injuries
suffered by the firefighters called to extinguish the fire. This court held that to make one who
negligently starts a fire respond in damages to a firefighter who is injured
placed too great a burden on the homeowner because the hazardous situation is
the very reason the fireman's aid was enlisted. Id. at 324, 327.
Likewise,
Gould, as the head nurse in the secured dementia unit and Monicken's caretaker,
had express knowledge of the potential danger inherent in dealing with
Alzheimer's patients in general and Monicken in particular. Holding Monicken negligent under these
circumstances places too great a burden on him because his disorientation and
potential for violence is the very reason he was institutionalized and needed
the aid of employed caretakers.
Accordingly, we conclude that the first Meyer rationale does not
apply in this case.
The
second rationale used to justify the rule is that "those interested in the
estate of the insane person, as relatives or otherwise, may be under inducement
to restrain him . . . ." Meyer, 218 Wis. at 385.
This rationale also has little application to the present case. Monicken's relatives did everything they
could to restrain him when they placed him in a secured dementia unit of a
restricted health care center. When a
mentally disabled person is placed in a nursing home, long-term care facility,
health care center, or similar restrictive institution for the mentally
disabled, those "interested in the estate" of that person are not
likely in need of such further inducement.
The
third reason for the common law rule set forth in Meyer is to prevent
tortfeasors from "simulat[ing] or pretend[ing] insanity to defend their
wrongful acts . . . ." Id. This rationale
is likewise inapplicable under the facts of this case. To suggest that Mr. Monicken would
"simulate or pretend" the symptoms of Alzheimer's disease over a
period of years in order to avoid a future tort liability is incredible. It is likewise difficult to imagine
circumstances under which persons would feign the symptoms of a mental disability
and subject themselves to commitment in an institution in order to avoid some
future civil liability.
In
sum, we agree with the Goulds that ordinarily a mentally disabled person is
responsible for his or her torts.
However, we conclude that this rule does not apply in this case because
the circumstances totally negate the rationale behind the rule and would place
an unreasonable burden on the negligent institutionalized mentally
disabled. When a mentally disabled
person injures an employed caretaker, the injured party can reasonably foresee
the danger and is not "innocent" of the risk involved. By placing a mentally disabled person in an
institution or similar restrictive setting, "those interested in the
estate" of that person are not likely to be in need of an inducement for
greater restraint. It is incredible to
assert that a tortfeasor would "simulate or pretend insanity" over a
prolonged period of time and even be institutionalized in order to avoid being
held liable for damages for some future civil act. Therefore, we hold that a person institutionalized, as here, with
a mental disability, and who does not have the capacity to control or
appreciate his or her conduct cannot be liable for injuries caused to
caretakers who are employed for financial compensation.[7]
We
next address American Family's challenge to the need for a remand. The court of appeals here remanded the case
to the trial court to determine whether there is a disputed issue of fact
regarding whether Monicken's mental capacity prevented him from controlling or
appreciating the consequences of his conduct.
Gould, 187 Wis. 2d at 680.
American Family alleges that Monicken's total incapacity was virtually conceded
at trial and therefore a remand is not necessary. Although the Goulds request a remand, in their brief they admit,
in essence, that upon remand it would be impossible to rebut the evidence of
Monicken's incapacity. Based on our
review of the record, we reach a similar conclusion.
Accordingly,
we reverse that part of the decision of the court of appeals remanding the case
to the trial court for a determination on the issue of Monicken's mental
capacity. We remand to the trial court
with directions to enter judgment for American Family in accordance with this
decision.
By
the Court.—The decision of the court of appeals is affirmed in part
and reversed in part; the cause is remanded to the circuit court with
directions to enter judgment in accordance with this decision.
SUPREME COURT OF WISCONSIN
Case No.: 94-0074
Complete Title
of Case: Sheri Gould, Scott Gould and St. Croix County,
Plaintiffs-Respondents-Petitioners,
v.
American Family Mutual Insurance Company,
Defendant-Appellant-Cross
Petitioner.
___________________________________________
REVIEW OF A DECISION OF THE COURT OF
APPEALS
Reported at: 187 Wis. 2d 670, 523 N.W.2d 295
(Ct. App. 1994)
PUBLISHED
Opinion Filed: January 30, 1996
Submitted on Briefs:
Oral Argument: October 5,
1995
Source of APPEAL
COURT: Circuit
COUNTY: St. Croix
JUDGE: ERIC J. LUNDELL
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the plaintiffs-respondents-petitioners
there were briefs by Michael J. Neitzke, Don Paul Novitzke and Novitzke,
Gust & Sempf, Amery and oral argument by Michael J. Neitzke.
94-0074 Gould v. American Family
For the defendant-appellant-cross
petitioner there was a brief by Nancy J. Sixel and Tinglum &
Sixel, S.C., River Falls and oral argument by Nancy J. Sixel.
Amicus curiae brief was filed by Betsy
J. Abramson and William P. Donaldson, Madison for the Elder Law
Center of the Coalition of Wisconsin Aging Groups and the Board on Aging and
Long Term Care of the State of Wisconsin.
[1] Gould has no recollection of exactly how she
was injured. However, Monicken does not
dispute that he either pushed or struck Gould.
[2] The trial court instructed the jury in part
as follows:
Evidence has been received and it appears
without dispute that the defendant at the time of the incident was mentally and
physically ill. It is the law that a
person who is mentally and physically ill is held to the same standard of care
as one who has normal physical and mental conditions, and in your determination
of the question of negligence, you will give no consideration to the
defendant's mental or physical condition.
See Wis JI—Civil
1021, "Negligence of Mentally Ill."
[4] For example, in Huchting v. Engel, 17
Wis. 237, 238 (1863), an action involving the civil liability of an infant, the
court commented in dicta that "a lunatic is as liable to compensate in
damages as a man in his right mind."
In Karow v. Continental Ins. Co., 57 Wis. 56, 64, 15 N.W. 27
(1883), the court held that an insurance company was not relieved from
liability when its insured burned his own property in a state of insanity, but
stated in dicta that "the same act of burning another's property might
subject such person to damages . . . on the principle that
where a loss must be borne by one of two innocent persons, it should be
borne by him who occasioned it." (Emphasis in original; quoted source
omitted.)
[5] We note that prior to this case, the court
of appeals also relied on Breunig v. American Family Ins. Co., 45 Wis.
2d 536, 173 N.W.2d 619 (1970), to suggest that a mental disability could be a
defense to negligence. See Burch
v. American Family Mut. Ins. Co., 171 Wis. 2d 607, 492 N.W.2d 338 (Ct.
App. 1992). We reserve further
discussion of the facts and circumstances of Burch for that
opinion. See Burch v.
American Family Mut. Ins. Co., No. 94-0947 (S. Ct. Jan. 30, 1996).
[6] See Stephanie I. Splane, Tort
Liability of the Mentally Ill in Negligence Actions, 93 Yale L.J. 153,
158-60 & n.30 (1983) (citing law review commentaries criticizing the law).
[7] We note that other courts have rejected the
common law rule within the limited context of severely mentally disabled
persons confined in institutions based on similar public policy considerations. Mujica v. Turner, 582 So. 2d 24,
25 (Fla. Dist. Ct. App. 1991); Anicet v. Gant, 580 So. 2d 273 (Fla.
Dist. Ct. App. 1991).