Lambrecht v. Estate of Kaczmarczyk

N. PATRICK CROOKS, J.

¶ 91. (dissenting). The court of appeals certified this case, asking for our guidance in navigating the sea of seemingly contradictory applications of res ipsa loquitur. However, instead of providing guidance for the bench and bar, the majority has further obfuscated the application of res ipsa loqui-tur. In so doing, the majority has effectively overruled precedent established over the course of a century and not only undermined the res ipsa loquitur doctrine, but also summary judgment methodology.

¶ 92. The court of appeals certified the following issue:

What is the proper methodology for determining if a res ipsa loquitur inference of negligence is rebutted as a matter of law at summary judgment? More specifically, under the facts of this case, is a res ipsa loquitur inference of negligence rebutted as a matter of law at summary judgment by evidence that the alleged tortfeasor suffered a heart attack when the evidence is in conflict, or uncertain, as to whether the heart attack occurred before or after the accident?

(Emphasis added.)

¶ 93. Res ipsa loquitur is applicable only where:

*846 (a) either a lay[person] is able to determine as a matter of common knowledge or an expert testifies that the result which occurred does not ordinarily occur in the absence of negligence, (b) the agent or instrumentality causing the harm was within the exclusive control of the defendant, and (c) the evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event.

Peplinski v. Fobe's Roofing, Inc., 193 Wis. 2d 6, 17 , 531 N.W.2d 597 (1995) (citing Lecander v. Billmeyer, 171 Wis. 2d 593, 601-02 , 492 N.W.2d 167 (1992)). The majority claims that res ipsa loquitur is applicable where only two of these requirements are met: (1) the result does not ordinarily occur in the absence of negligence and (2) the agency of or instrumentality of the harm was within the exclusive control of the defendant. Majority op. at ¶ 34.

¶ 94. However, res ipsa loquitur is not applicable unless the third requirement relating to causation is also met. The majority quotes what has been the rule in this state since 1898:

Where there is no direct evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it might be ascribed to a cause not actionable as to a cause that is actionable, it is not within the proper province of a jury to guess where the truth lies and make that the foundation for a verdict.

Majority op. at ¶ 40 n.24 (quoting Hyer v. Janesville, 101 Wis. 371, 377 , 77 N.W. 729 (1898)). The majority reiterates, in a number of variations, that res ipsa loquitur is not applicable where the jury would have to resort to speculation to determine the cause of an acci *847 dent. See, e.g., majority op. at ¶ 40. The majority also discusses a number of cases where this rule has been applied, namely, Klein v. Beeten, 169 Wis. 385 , 172 N.W. 736 (1919), Baars v. Benda, 249 Wis. 65 , 23 N.W. 477 (1945). Yet, the majority does not apply that rule, which has been the law in Wisconsin for more than 100 years, nor explain how it resolved the threshold issue of whether res ipsa loquitur is even applicable in this case. Instead, the majority certainly seems to adopt a new rule that, although it may be the rule elsewhere, has never been adopted in Wisconsin, namely, that equally competing reasonable inferences of negligence and non-negligence should be submitted to the jury. See majority op. at ¶ 77. Such a rule inevitably requires the jury to speculate.

¶ 95. Res ipsa loquitur is not applicable here because there is no evidence that removes causation from the realm of conjecture. Based upon the police report, 1 the majority concludes that a reasonable inference to be drawn from the defendant-driver's striking *848 three automobiles is that he was negligent in operating his automobile. Majority op. at ¶¶ 30, 32. But another, just as reasonable, if not more so, inference, to be drawn from the evidence is that the defendant-driver's heart attack caused the accident. There is no evidence that one inference or explanation is more reasonable or more likely than the other. 2 If causation is speculative, the plaintiff is not entitled to rely upon res ipsa loqui-tur, i.e., where "there is no credible evidence upon which the trier of fact can base a reasoned choice between the two possible inferences, any finding of causation would be in the realm of speculation and conjecture." Merco Distrib. Corp. v. Commercial Police Alarm Co., Inc., 84 Wis. 2d 455, 460 , 267 N.W.2d 652 (1978).

¶ 96. The majority tries to avoid its Achilles heel by ignoring the requirement for the application of res ipsa loquitur that the plaintiff must proffer sufficient evidence to show causation beyond conjecture. After the majority decision, summary judgment will be proper in cases that may involve res ipsa loquitur. The majority finds summary judgment appropriate only where the defendant destroys the inference of negligence or so completely contradicts that inference that a fact-finder cannot reasonably accept it. Majority op. at *849 ¶ 78. To do this, defendants must come forward with evidence that "conclusively exonerate^] the defendants of negligence." Id. at ¶ 79.

¶ 97. Apparently, according to the majority, the defendant must disprove any possibility of negligence, regardless of whether the plaintiff has affirmatively shown negligence beyond conjecture. As a consequence, in those cases where either an actionable or nonactionable cause resulted in an accident, now the plaintiff would be allowed to proceed under res ipsa loquitur, unless the defendant conclusively, irrefutably, and decisively proves that there was no negligence.

¶ 98. By eliminating the requirement that the plaintiff must show that the cause of the accident has been removed from the realm of speculation or conjecture, the majority has turned over 100 years of precedent on its head. See Hyer, 101 Wis. at 377 . This court first found res ipsa loquitur applicable in an automobile collision case only because the inferences of nonnegligent causes had been eliminated, rendering Hyer inapposite. Wisconsin Tel. Co. v. Matson, 256 Wis. 304 , 312-13, 41 N.W.2d 268 (1950). In Matson, this court reiterated Hyer's holding, and noted that while res ipsa loquitur acted as a substitute for proof of negligence, "it is only where the circumstances leave no room for a different presumption that the maxim applies." Id. at 310 (citing Klein, 169 Wis. 385 ). In other words, only where the circumstances eliminated contrary inferences "until only those of negligent operation remain," will res ipsa loquitur apply in car accident cases. Matson, 256 Wis. at 312-13. The defendants had raised only "imaginary traffic conditions," but offered no evidence as to a nonactionable cause for the accident at issue. Id. at 312. Consequently, "[njothing is left which can rationally explain the collision except negli *850 gence on the part of the driver. There are no circumstances which leave room for a different presumption." Id. Accordingly, res ipsa loquitur was appropriate, and applicable. The majority today creates a test that requires just the opposite; namely, that the doctrine of res ipsa loquitur is applicable until the inference of negligence is eliminated or destroyed.

¶ 99. The majority has all but overruled Wood v. Indemnity Ins. Co. of N. Am., 273 Wis. 93 , 76 N.W.2d 610 (1956). As the majority notes (¶ 44), in Wood , had there been "conclusive testimony" that the driver, James Wood, had a heart attack at the time of the accident, there would have been no need for the defendant to "establish that the heart attack occurred before" the accident "to render inapplicable the rule of res ipsa loquitur." Id. at 101-02. But there was no such conclusive testimony; instead, the wife of the driver, Neomi Wood, had testified that just as their jeep hit the gravel at the side of the road, she saw "Mr. Wood as stiffening out, doing something with his feet." Id. at 98 . Also, a witness who saw James Wood's body after the accident — he had been killed by the accident — described his face as "grayish blue." Id. This is hardly irrefutable, conclusive testimony that James Wood had a heart attack at the time of the accident. Indeed, the majority notes that "the defendant produced no admissible evidence of a heart attack." Majority op. at ¶ 44 n.26. Yet, in Wood , this court did not require that the evidence of a heart attack irrefutably establish that the heart attack occurred before the accident. Id. at 101-02 . Instead, this court held that if there was evidence of a non-negligent cause of the accident, the jury would have to speculate between *851 negligence and non-negligence, rendering res ipsa loquitur inapplicable. 3

¶ 100. Here, there is conclusive, irrefutable evidence that the defendant-driver had a heart attack at the time of the accident. All of the experts agree. They do not agree whether the heart attack occurred before or during the accident, but, according to Wood , the defendants need not establish that the heart attack occurred prior to the accident. But that significant aspect of res ipsa loquitur has been obliterated by the majority. Not only has Wood been effectively overturned, but so have all the other cases that withheld application of res ipsa loquitur where the circumstances indicated that the accident just as likely resulted from a non-negligent cause as a negligent cause.

¶ 101. The majority recognizes these cases that held that res ipsa loquitur is not applicable where "it is shown that the accident might have happened as the result of one of two causes," and that one cause is not negligence. Majority op. at ¶ 40 (citing Klein, 169 Wis. at 389 ). But the majority attempts to re-explain them, not as having competing inferences of negligence and non-negligence, but as having "weak" inferences of negligence. Majority op. at ¶¶ 72-73. This approach is particularly untenable because it requires comparing the inferences of negligence and non-negligence. According to the majority, in order for the circuit court to determine whether summary judgment is appropriate or not, the court must evaluate whether an inference is "strong" or "weak." Majority op. at ¶¶ 72, *852 73, 74, 83, 85. This flies in the face of summary judgment methodology, which is to decide a case as a matter of law without weighing and comparing the evidence. Also, such an approach "is unwise because it puts the court into the position of weighing the evidence and choosing between competing reasonable inferences, a task heretofore prohibited on summary judgment." Yahnke v. Carson, 2000 WI 74, ¶ 27 , 236 Wis. 2d 257 , 613 N.W.2d 102 ; see also Wis. Stat. § 802.08 (1997-98). Indeed, the ease with which the majority gives its imprimatur to the weighing of evidence in deciding a summary judgment motion is very troublesome.

¶ 102. Nowhere has this court previously even hinted that a defendant needs to produce conclusive, irrefutable, and decisive evidence to "destroy" any inference of negligence or face a trial. Rather, the test to date has been that the inferences on non-negligent causes had to be eliminated for res ipsa loquitur to apply. The majority's approach thus flies in the face of our precedent since Hyer , more than 100 years ago. It also flies in the face of summary judgment methodology, and places an unacceptable burden here upon the defendants to disprove plaintiffs' claim. For these reasons, I respectfully dissent.

¶ 103. I am authorized to state that Justice JON P. WILCOX and Justice DIANE S. SYKES join in this dissent.

Indeed, the evidence the majority relies upon — the police report, even though submitted by defendants — includes hearsay and probably would not be admissible at trial. Although the police officer's personal observations and measurements would be admissible (Wilder v. Classified Risk Ins. Co., 47 Wis. 2d 286, 290 , 177 N.W.2d 109 (1970)), the witnesses' statements contained in the police report, upon which the majority relies (majority op. at ¶¶ 10, 11, 29, 30), would not be admissible. Mitchell v. State, 84 Wis. 2d 325, 330 , 267 N.W.2d 349 (1978). Even summary judgment must be based upon admissible evidence.

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .Supporting and opposing affidavits *848 shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence.

Wis. Stat. § 802.08 (2), (3) (1997-98).

The majority also indicates that discussion of reasonable inferences leads to a discussion of res ipsa loquitur. Majority op. at ¶ 33. Not every reasonable inference of negligence should suggest that a case involves res ipsa loquitur. If such were true, then, despite the majority's protestations to the contrary (id. at ¶ 35), every automobile collision would indeed raise the issue of res ipsa loquitur.

Wood referred to this axiom as "the rule laid down in Baars v. Benda, 249 Wis. 65 , 23 N.W.2d 477 (1946)." 273 Wis. at 101 . The rule was not applicable in Wood because there was no evidence of a non-negligent cause.