Once liability for personal injury damages is established, the court must determine as a matter of public policy whether to impose liability. This public-policy consideration can insulate a defendant from liability, even when that defendant’s conduct was a substantial factor in causing the harm, if the liability would shock the conscience of society.
Wisconsin courts have listed six public-policy factors to consider:
➢ The injury is too remote from the negligence.
➢ The injury is wholly out of proportion to the culpability of the negligent tortfeasor.
➢ In retrospect it appears too highly extraordinary that the negligence should have brought about the harm.
➢ Allowance of recovery would place too unreasonable a burden on the negligent tortfeasor.
➢ Allowance of recovery would be too likely to open the way for fraudulent claims.
➢ Allowance of recovery would enter a field that has no sensible or just stopping point.
Rarely would public policy deny personal injury damages in an automobile accident case. However, in Casper v. American Int’l S. Ins. Co., 2011 WI 81, ¶¶ 91-100 , 336 Wis. 2d 267 , 800 N.W.2d 880 the court ruled that a claim for negligence in approving the route driven by a negligent truck driver was too remote in time and space from accident for liability to attach.
Public policy comes into play in more unusual situations. In Rockweit v Senecal, 197 Wis.2d 409 (1995) the Wisconsin court held that guests at campsite who failed to extinguish a campfire are not liable for burn injuries to a child who fell into the campfire.
The legislature has the authority to change public-policy determinations by the courts and has. For example, the Wisconsin Legislature established the principles of liability for a supplier of alcohol to a minor who later injures another by intoxicated driving. Wisconsin Statutes Sec. 125.035.
Whether the defendant’s wrong was a cause-in-fact or substantial factor in bringing about the harm claimed in a particular case is a question of fact for the jury.
Whether public-policy considerations preclude the imposition of liability is a pure question of law to be decided by the judge. The Wisconsin Supreme Court has held that while it is generally a better procedure for the trial court to submit negligence and cause-in-fact issues to the trier of fact before addressing public-policy considerations on causation issues, the public-policy limitations on liability may, in an appropriate case, be decided at the pleading stage.
McCormick Law Office in Milwaukee, Wisconsin has been involved in cases extending liability past what is generally accepted. One case involved attaching responsibility to a company after its employee got drunk at a company opening day party and killed our client while driving drunk.