No Duty Is Dead, Long Live No Duty
Perhaps reports of the death of the “no duty” defense in negligence cases have been greatly exaggerated. Perhaps not. In Behrendt v. Gulf Underwriters Ins. Co., the Wisconsin Supreme Court examined the scope and questionable continued vitality of the argument that a defendant cannot be held liable because he or she owes no duty to the plaintiff. In a case in which the only clear conclusion was that there was no way the defendant should be held liable to the plaintiff, the court provided at least three different ways to reach that result. This article examines those paths and concludes that for most summary judgment arguments it is worth including the “no duty” defense in conjunction with arguments based on “no breach” and public policy factors.
II. What is Behrendt about?
The defendant, Silvan Industries, made pressurized tanks. Silvan allowed its employees to use scrap metal and scrapped tanks for side projects. Silvan specifically prohibited its employees from making pressurized tanks - the manufacture of which is subject to strict codes, inspections, and registration. To make sure the scrapped tanks were not used as pressurized vessels, Silvan riddled them with holes. An employee of Silvan made a tank as a favor for the plaintiff’s boss. The tank was then modified over the course of a few weeks, and the holes were plugged so it could be used to collect oil in an oil change business. The tank was further modified so air pressure could be used to empty it. Later on, the plaintiff was using the tank under pressure when it exploded and injured him. The plaintiff sued Silvan in negligence for having a policy permitting side jobs.
III. The paths to no liability
A. The trial court: public policy factors
Silvan and its insurer moved for summary judgment on several claims, including the negligence claim. The circuit court analyzed the motion under the law that allows a the circuit court to use public policy factors to hold a defendant not liable to the plaintiff even if all the elements of a tort claim are satisfied. Under most circumstances, the trial court would not make that determination until after the jury has done its part. However, the trial court found that the facts necessary for cutting off liability were not in dispute, and, therefore, applied the public policy factors prior to trial. The trial court granted summary judgment in favor of Silvan, finding that the negligence was too remote from the injury and that allowing recovery would open the door to fraudulent claims and would have no sensible or just stopping point.
B. The court of appeals uses a “no duty” analysis
The court of appeals, in an unpublished decision, affirmed the trial court decision, but on different grounds. The court of appeals, like the trial court, concluded that the harm to the defendant was not foreseeable. Rather than conclude that the lack of foreseeability rendered summary judgment appropriate under the public policy factors, however, the court of appeals concluded that because the harm to the defendant was not foreseeable by Silvan, Silvan had no duty to the defendant.
It is not clear why the court of appeals, in an unpublished decision no less, felt compelled to affirm the trial court’s decision on different grounds, especially on a basis as contentious as a “no duty” analysis. Perhaps it was not confident in the defendant’s public policy arguments. The court of appeals’ decision notes that the plaintiff focused its argument on causation, the ultimate question of negligence, and the trial court’s public policy rationale. The court of appeals explained that because of its conclusion that Silvan owed no duty to the plaintiff as a matter of law, it did not need to address those other issues.The court of appeals did recognize that the same lack of foreseeable harm that underpinned its “no duty” holding also supported the trial court’s application of the public policy factors to preclude liability.
C. Wisconsin Supreme Court Majority: No breach
The Wisconsin Supreme Court agreed with the trial court and court of appeals that the harm was unforeseeable as a matter of law. However, the court concluded that this lack of foreseeability meant that Silvan did not breach its duty of ordinary care; it did not negate Silvan’s duty to the plaintiff.
The supreme court attempted to explain its rationale for going down the “no breach” path instead of the “no duty” path the court of appeals used or the public policy path the trial court used. The court noted that the end result of no liability could properly be reached under the public policy factors because the harm was too remote from the negligence. The court decided to analyze the case under the “no breach” analysis, however, in order to clarify that foreseeability is properly taken into consideration as to breach and that the court is not deviating from the Palsgraf v. Long Island Railroad minority opinion that it has adhered to in the “vast majority” of its cases. The court recited the four elements of a negligence claim (duty, breach, cause, and damages) and noted that the any summary judgment analysis should start with an examination of the four elements. That is the closest the court came to explaining why it did not just reaffirm the trial court’s public policy analysis.
The court indicated that it decided to analyze the issue in terms of lack of breach rather than lack of duty due to recent case law in which it had addressed questions of breach and duty. It cited its recent decision in Nichols v. Progressive Northern Insurance Co. in which it held that “in a negligence case, a defendant’s conduct is not examined in terms of whether or not there is a duty to do a specific act, but rather whether the conduct satisfied the duty placed upon individuals to exercise that degree of care as would be exercised by a reasonable person under the circumstances.” One would think that Nicholshad driven the last nail into the “no duty” coffin. Not so fast.
The court then went on to do a good job of demonstrating the pervasive lack of clarity in the case law regarding the role of duty. After reiterating that Wisconsin follows the minority opinion from Palsgraf, the court moved on to a rather perplexing and unhelpful discussion of Hoida, Inc. v. M&I Midstate Bank, in which it discussed “what is within the duty of ordinary care,” what the “duty of ordinary care encompassed,” and what actions were “required by a duty of ordinary care.” The Hoida court concluded that the “duty of ordinary care did not extend to those affirmative acts.” To me the discussion was unhelpful because to say that the duty of ordinary care does not “encompass” an affirmative act might mean there is no duty to do the specific act, or it might mean that failure to do that act is not a breach of the duty—precisely the issue the court was attempting to clarify.
The court then acknowledged that some prior Wisconsin cases have invoked foreseeability inquiries in connection with a duty analysis, but that this approach is inconsistent with the “vast majority” of the cases. The court, tellingly perhaps, does not disavow or specifically overrule the vast minority of cases or holdings. The court left the door open for the continued use of “no duty” arguments by cryptically stating that “[o]ccasionally, there are cases where a negligence claim fails because the duty of care does not encompass the acts or omissions that caused the harm, but this is not one of them.”What does that mean? In a footnote to that statement, the court refers to the Hoida majority’s explanation that the defendants have a duty to exercise ordinary care under the circumstances, but what the majority opinion turns on is whether the circumstances require the defendants to undertake the affirmative acts the plaintiff requests. The court states that Silvan had a duty of ordinary care to ensure that its policy of permitting side jobs did not create an unreasonable risk of injury to the plaintiff.
The court candidly admits that it has “not always clearly drawn the distinction between duty and breach of duty.” Apparently to prove its ability to be less than clear, the court cites its statement in Rockweit v. Senecal that the existence of a duty, which is a matter of law, is “closely related” to the question of whether a defendant is not negligent as a matter of law, i.e. whether no reasonable jury could find that the defendant failed to exercise ordinary care.
The court then concludes that this is a case where no reasonable jury could conclude that Silvan failed to exercise ordinary care. Compared to the contortions and hand wringing involved in justifying the use of the “no breach” path, the court’s actual walk down that path is relatively pedestrian and unexciting. The court agrees with the trial court and court of appeals that, given Silvan’s policy of not allowing its employees to make pressurized vessels as side jobs, it was unforeseeable that an employee would make a vessel that would later be modified to act as a pressurized vessel that could explode and injure someone. Because Silvan did not do anything that caused a foreseeable risk of unreasonable harm, it was not negligent.
D. Concurring Opinions: Variations on a theme
By way of recap, the supreme court agreed with the trial court and the court of appeals that the harm was unforeseeable as a matter of law. The court acknowledged that this unforeseeability probably meant the injury was too remote from the negligence, such that liability could be precluded under the public policy factors. However, in an effort to clarify that it is adhering, as it has usually done (in the “vast majority” of its cases), to the Palsgraf minority’s view of duty, it explained that usually everyone owes a duty of ordinary care to everyone else, except in rare cases in which the duty does “not encompass” the specific act. According to the court, this was not one of those rare cases. This was, instead, one of those rare cases in which the defendant did not breach its duty as a matter of law (which is closely related to a determination of no duty as a matter of law). I submit that the majority opinion did a great job of demonstrating the complexity of the “no duty” problem, but did little in the way of clarifying its application.
1. Justice Roggensack’s Concurrence
Thankfully, in an effort to assist us as we “step into the thicket of a negligence claim in Wisconsin” Justice Roggensack has written a concurring opinion, in which Justices Ziegler and Gableman joined.This concurrence is either an attempt to revive, resuscitate, and reinvigorate the concept of duty as an element of negligence actions or an attempt to defend against Justice Abrahamson’s mission to completely eradicate duty as an element of a negligence claim, depending on how you look at it.
Justice Roggensack’s concurrence is based on the theory that negligence claims are analyzed differently depending on whether the focus is on an act negligently performed or the omission of a specific act that should have been performed. Under this theory, the Palsgraf minority opinion and the Wisconsin cases adopting that view addressed what really could be considered a proximate cause issue. That issue, the concurrence argues, arises after it is determined that the defendant was negligent, and the question becomes whether the defendant is liable to a plaintiff who was not within the scope of the foreseeable harm. Basically, the adherence to the Palsgraf minority opinion simply means that a defendant is liable to all who are injured by a negligent act. ¶ 107.
According to Justice Roggensack’s concurrence, the “no duty” defense is still available in cases based on an alleged failure to do an affirmative act. In those cases, the very first step in the summary judgment analysis is to determine whether the defendant actually had a duty to do the affirmative acts. If the defendant did not have a duty to do the deed, then there can be no liability for the omission.
Justice Roggensack cites several cases including Hoida, Inc. v. M&I Midstate Bank, and the Restatement (Third) of Torts in support of this argument. She then argues that the majority opinion treated the claims against Silvan as claims of affirmative acts negligently performed—that is, that that the creation of their policy permitting side jobs was negligent—rather than as a case of an alleged negligent failure to prevent its employees from making pressurized tanks as side jobs. That would, then, explain the majority opinion’s decision to eschew a “no duty” analysis in favor of a “no breach” analysis. It would also leave the door open for arguing “no duty” in almost any other case.
2. Justice Abrahamson’s concurrence
Justice Abrahamson wrote separately either to address Justice Roggensack’s attempt to oversimplify the role of duty in negligence cases or in furtherance of her own mission to completely eradicate the role of duty, depending on how you look at it.
Justice Abrahamson criticizes Justice Roggensack’s attempt to draw a distinction between misfeasance and nonfeasance in Wisconsin law. Justice Abrahamson cites several Wisconsin cases and the Restatement (Third) of Torts for the proposition that Wisconsin utilizes a unified negligence standard applicable to conduct, whether characterized as an act or omission. She also notes that even Justice Roggensack’s concurrence admits that negligence often can be characterized either as a failure to act or as an act negligently performed, depending on the lens that the author of the opinion applies, which would seem to make the proper role of duty entirely dependent on how the reviewing court chooses to approach the issue. Justice Abrahamson discusses the Rockweit and Gritzner cases, which rejected “no duty” arguments, and then cites the recent Nichols opinion in which the court held that “in a negligence case, a defendant’s conduct is not examined in terms of whether or not there is a duty to do a specific act, but rather whether the conduct satisfied the duty placed upon individuals to exercise that degree of care as would be exercised by a reasonable person under the circumstances.”
Where does Behrendt leave the practitioner wanting to prepare a motion for summary judgment? If the concept of “no duty” is so closely related to the concept of “no breach” of the duty as a matter of law, and actually very similar to the application of the public policy factors, what difference does it make? Here we have a trial court decision, a court of appeals decision, and three opinions from Justices of the Wisconsin Supreme Court, each one employing a different methodology, but all arriving at the same “no liability” conclusion. The difference is that the issue of duty and the scope of the duty is a question of law. On the other hand, whether a defendant breached a duty is usually a question for the jury. There is a strong presumption in negligence cases that courts not get involved in that issue unless it is patently obvious that no reasonable jury could find a breach. Similarly, there is a strong presumption for applying the public policy factors only after a full trial.
The majority opinion claims to have addressed this issue under the “no breach” rubric to clarify its adherence to the Palsgraf minority opinion. However, it failed to directly address the issue addressed by the concurring opinions, that is, when is a “no duty” analysis appropriate? In failing to address that issue and in specifically indicating that there are some occasions when summary judgment is appropriate because a specific act is not “encompassed” in the duty of ordinary care, the majority has left open an attempt to argue, as Justice Roggensack has suggested, that at least in cases that can be phrased in terms of an allegedly negligent failure to perform a specific act, summary judgment is appropriate if the court can be convinced that the defendant did not have a duty to perform that specific act. Until a majority of the Wisconsin Supreme Court (again) says that the “no duty” analysis is dead, it should be very much alive. Given the lack of clarity in this area of the law, Behrendt is likely to convince at least some trial courts, appellate courts, and Wisconsin Supreme Court Justices.
 2009 WI 71, __ Wis. 2d __, __ N.W.2d __.
 Id., ¶¶ 5-6.
 Id., ¶ 7.
 Id., ¶ 8.
 Id.; see also, e.g., Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995).
 See, e.g., Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 144, 549 N.W.2d 714 (1996); Padilla v. Bydalek, 56 Wis. 2d 772, 779-80, 203 N.W.2d 15 (1973).
 Behrendt, 2009 WI 71, ¶ 8, n.5.
 Behrendt v. Gulf Underwriters Ins. Co., 2008 WI App 51, 309 Wis. 2d 234, 747 N.W.2d 527 (unpublished).
 Id. ¶ 13.
 Behrendt, 2009 WI 71, ¶ 10.
 Behrendt, 2008 WI App. 51, ¶ 10.
 Id. ¶ 13.
 Behrendt, 2009 WI 71, ¶ 3.
 Id., ¶¶ 13-31.
 Id., ¶¶ 28-30.
 162 N.E. 99 (N.Y. 1928).
 Id., ¶¶ 3, 31.
 Id., ¶ 14.
 Id., ¶ 16.
 Id., ¶ 16, (citing Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶ 45, 308 Wis. 2d 17, 746 N.W.2d 220).
 2006 WI 69, 291 Wis. 2d 283, 717 N.W.2d 17.
 Behrendt, 2009 WI 71, ¶ 18.
 2006 WI 69, ¶ 32.
 Id., ¶ 20.
 Id., ¶ 21.
 Id., ¶ 21, n.9.
 Id., ¶ 21.
 Id., ¶ 22.
 197 Wis. 2d 409, 541 N.W. 2d 742 (1995).
 Behrendt, 2009 WI 71, ¶ 23.
 Id., ¶ 23.
 Id., ¶¶ 88-122 (Roggensack, J., concurring).
 Id., ¶¶ 105-108 (Roggensack, J., concurring).
 2006 WI 69, 291 Wis. 2d 283, 717 N.W.2d 17.
 Behrendt, 2009 WI 71, ¶¶ 112-116 (Roggensack, J., concurring).
 Id., ¶¶ 44-86 (Abrahamson, J., concurring).
 Id., ¶¶ 47-53 (Abrahamson, J., concurring).
 Id., ¶ 56 (Abrahamson, J., concurring).
 Id., ¶ 55 (Abrahamson, J., concurring).
 Gritzner v. Michael R., 2000 WI 68, ¶ 22 , 235 Wis. 2d 781, 611 N.W.2d 906.
 Id.,, ¶ 73 (Abrahamson, J., concurring) (citation omitted).
 Id., ¶ 93 (Roggensack, J., concurring).