Tesar v. Anderson
2010 WI App 116, 329 Wis. 2d 240, 789 N.W.2d 351 (2010)
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Rule of Law:
Under Wisconsin law, a father may maintain a wrongful death action against an insurer for the stillbirth of a viable fetus caused by the mother's negligent driving, as the state's broad duty of ordinary care applies, and public policy does not preclude liability in such circumstances.
Facts:
- On February 13, 2003, a two-car automobile accident occurred.
- Alicia Vander Meulen was pregnant at the time of the accident.
- Shannon E. Tesar was the father of Vander Meulen's unborn child.
- Both drivers, Alicia Vander Meulen and Brett Anderson, were alleged to be negligent in causing the accident.
- As a result of the accident, Vander Meulen's unborn child was stillborn.
- For the purpose of summary judgment, the parties conceded that the automobile accident caused the stillbirth and that Tesar was the father of Vander Meulen's fetus.
Procedural Posture:
- Shannon E. Tesar filed a complaint in state trial court, alleging negligence against Brett Anderson and American Family Mutual Insurance Company (as insurer for both Anderson and Alicia Vander Meulen).
- American Family filed a motion for summary judgment, specifically challenging its liability for Alicia Vander Meulen's alleged negligence in the death of her fetus.
- The state trial court granted summary judgment to American Family, concluding that Vander Meulen did not owe a legal duty to her fetus and that, even if she were found negligent, public policy prevented liability.
- Tesar appealed the trial court's summary judgment ruling to the Wisconsin Court of Appeals.
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Issue:
Does public policy preclude liability for an insurer when a father brings a wrongful death claim for the stillbirth of a viable fetus caused by the negligent driving of the fetus's mother, given Wisconsin's broad view of duty and abolition of parental immunity?
Opinions:
Majority - Dykman, PJ.
No, public policy does not preclude liability for an insurer when a father brings a wrongful death claim for the stillbirth of a viable fetus caused by the negligent driving of the fetus's mother, because Wisconsin's broad view of duty applies to the world at large, and the specific facts of this case do not present 'unusual and extreme' public policy considerations that would justify limiting liability. The court found that Tesar's complaint sufficiently stated a claim for negligence, as Vander Meulen had a duty to the world at large to use ordinary care in operating her vehicle, which she allegedly breached, causing damages (the stillbirth of Tesar's child). Wisconsin's negligence framework, which follows the Palsgraf dissent, broadly defines duty, making the initial inquiry whether the defendant's act would probably cause injury to anyone, not just a specific plaintiff. The court then assessed whether public policy reasons should nonetheless limit liability, noting that such limitations are a 'drastic judicial remedy' applied only in 'unusual and extreme considerations' or where it would 'shock the conscience of society.' Applying the six public policy factors, the court determined that: 1) the fetal death was not too remote from negligent driving; 2) recovery was not out of proportion to culpability; 3) the harm was not highly extraordinary; 4) recovery would not place an unreasonable burden on the tortfeasor; 5) there was no heightened concern for fraudulent claims; and 6) recovery would not enter a field with no sensible stopping point, as this case falls within the well-established area of holding insurers liable for negligent drivers, even when family members are injured. The court emphasized that a viable fetus is a 'person' under the wrongful death statute and Wisconsin has abolished parental immunity with exceptions not applicable to negligent driving. The court also distinguished cases from other jurisdictions (Illinois, Texas, Massachusetts) because they follow the Palsgraf majority's narrower view of duty, which Wisconsin rejects. Finally, the court found American Family's arguments regarding causation and the wrongful death statute unpersuasive. Therefore, the trial court erred in dismissing American Family from the negligence action.
Concurring - Lundsten, J.
I agree with the majority opinion's conclusion and reasoning, except for its discussions and commentary on the concept of 'duty' found in footnotes 7, 11, and 13. My decision not to join these footnotes is not based on agreement or disagreement with their content, but rather because I believe they extend too far beyond the specific dispute before the court. Paragraphs 5 through 8 of the majority opinion provide sufficient explanation for why the trial court's ruling on duty was incorrect and adequately address American Family's argument. Additionally, I do not find it helpful to categorize negligence cases as 'mine-run' or 'unusual/hard.'
Analysis:
This case significantly reaffirms Wisconsin's expansive approach to negligence law, particularly its broad 'duty to the world at large' principle, making it a stark contrast to jurisdictions adhering to the narrower Palsgraf majority view. It establishes that the abolition of parental immunity extends to viable fetuses injured by a parent's negligent driving, preventing insurers from using the victim's prenatal status or familial relationship to escape liability. The court’s rigorous application of public policy factors demonstrates that these exceptions to liability are limited to truly 'unusual and extreme' circumstances, reinforcing the principle that most negligence cases, including those involving fetal injury from negligent driving, should proceed to trial. This decision ensures greater protection for unborn viable fetuses under tort law in Wisconsin, especially in the context of vehicular negligence.
