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RES IPSA LOQUITUR VS. THE “ILLNESS WITHOUT FOREWARNING”
DEFENSE AS A “NON-ACTIONABLE” ALTERNATIVE CAUSE
Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, 241 Wis.2d 804, 623 N.W.2d 751
I.
Res ipsa loquitur is available when:
A.
The accident is one which does not normally occur in the absence of
negligence.
1.
II.
III.
This element is proved when
a.
Either a layman is able to reach this conclusion as a matter of
common knowledge, or
b.
An expert testifies to this effect.
B.
The agent or instrumentality causing the harm is within the exclusive control
of the defendant, and
C.
The evidence is sufficient to remove the cause question from the realm of
conjecture, but not so substantial that it provides a full and complete
explanation of the accident. See, Peplinski v. Fobe’s Roofing, Inc., 193
Wis.2d 6, 17, 531 N.W.2d 597 (1995).
The illness without forewarning defense is available when:
A.
A driver, through sudden illness or loss of consciousness, commits an act or
omits a precaution that would otherwise constitute negligence.
B.
If the sudden illness or loss of consciousness is established, such act or
omission is not negligence if the occurrence of such illness or loss of
consciousness was not preceded by sufficient warning that a person of
ordinary intelligence and prudence ought reasonably to foresee that he or
she, by driving an automobile, would subject the person or property of
another or of himself or herself to an unreasonable risk of injury or damage.
See, Breunig v. American Family Insurance Co., 45 Wis.2d 536, 173 N.W.2d
619 (1970); Theisen v. Milwaukee Automobile Mutual Insurance Co., 18
Wis.2d 91, 99, 118 N.W.2d 140 (1962); Wisconsin Jury Instructions – Civil
1021.2.
The issue in Lambrecht: When the evidence is utterly inconclusive as to whether a
motor vehicle accident resulted from a heart attack or was caused by negligence
and then induced a heart attack, does the presence of the basic res ipsa loquitur
elements entitle the plaintiff to the inference, or does the “equal” likelihood that the
heart attack caused the accident create “conjecture” sufficient to eliminate the
inference? The defendants sought and received summary judgment on the basis
of this latter argument.
IV.
V.
The Wisconsin Supreme Court’s conclusion: Reversed - the defendants were not
entitled to summary judgment.
A.
The evidence that the defendant driver suffered a heart attack at some point
during the collision does not by itself foreclose to the plaintiff the benefit of an
inference that the defendant driver was negligent.
B.
The evidence of the heart attack does not completely contradict the inference
of negligence arising from the collision itself.
C.
The defendants’ evidence at summary judgment of the defendant driver’s
heart attack is not sufficient to establish as a matter of law the affirmative
defense known as “illness without forewarning.”
D.
The defendants have the burden of persuasion of this affirmative defense.
The facts in Lambrecht:
A.
On February 8, 1996, at approximately 4:30 p.m., the defendant’s automobile
was traveling westbound on a straight and dry road when it collided with
three automobiles, two of which were in the right turn lane traveling in the
same direction as the defendant’s automobile; these vehicles were going to
turn right at the intersection and travel north. The third vehicle, the plaintiff’s
automobile, was either stopped at the intersection, facing south, or just
starting to move when it was struck; the plaintiff’s vehicle was going to turn
left across the defendant’s lane of traffic and travel eastbound.
B.
The defendant’s automobile rear ended the first vehicle, brushed the back
bumper of the second vehicle, and skidded across a dividing median, striking
the plaintiff’s vehicle directly on the driver side door. The police officer
observed that the defendant driver’s automobile left skid marks after the
collision with the first car. By the time police arrived at the scene, the
defendant driver was already in cardiac arrest and unable to breath. He later
died at Waukesha Memorial Hospital.
C.
The medical examiner determined that the cause of death was
arteriosclerotic cardiovascular disease, resulting in acute cardiopulmonary
arrest. In other words, the defendant died of a heart attack.
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VI.
VII.
D.
While the medical experts agreed about the cause of death, they disagreed
about when the heart attack occurred. The medical examiner himself was
willing to opine that the heart attack occurred before the initial collision.
However, the defendants’ privately retained medical expert acknowledged
that it was not possible in the medical sense to determine the exact time of
the heart attack based upon a post-collision examination. Rather, this expert
opined that the heart attack preceded the collision “based upon probability
and likelihood.” In other words, in her mind common sense dictated that it
was more likely that the heart attack caused the erratic driving (which raised
the question of what sort of “medical” expertise she brought to the case).
E.
The plaintiff’s medical expert agreed that it was impossible to state with
certainty which came first, the initial collision or the heart attack. He asserted
that it would be pure speculation for anyone to say which occurred first.
Either was just as likely as the other. The expert did point out that this heart
attack was of a type often induced by adrenaline. This doctor also pointed to
the skid marks as evidence of post-collision consciousness on the part of the
driver and an effort by the driver to control his vehicle.
The defendants moved for summary judgment, arguing:
A.
It was undisputed that the defendant driver suffered a heart attack at some
material point in time.
B.
The medical testimony was inconclusive as to whether the heart attack
occurred before, during, or after the collision.
C.
Because it is just as likely that the heart attack occurred before, summary
judgment was proper, because to allow the case to go forward would force
the jury to speculate on the question of negligence.
D.
The trial court agreed with the defense position, concluding that the res ipsa
inference was inapplicable because it was just as likely that an unforeseen
illness caused the collision as it was that negligence did. According to this
view, once any conclusive heart attack evidence is introduced, regardless of
timing, allowing the case to go forward would permit a jury to base a verdict
of negligence on conjecture. As such, summary judgment was granted.
E.
The plaintiff appealed.
Based on the facts, the supreme court concluded that it was reasonable to “infer”
that the defendant driver was negligent in operating his automobile.
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VIII.
IX.
A.
“Most courts agree that the doctrine of res ipsa loquitur simply describes an
inference of negligence.”
B.
The doctrine is a rule of circumstantial evidence that permits a fact finder to
infer a defendant’s negligence from the mere occurrence of the event.
C.
Most often, the inference called for by the doctrine is one that a court would
properly have held to be reasonable even in the absence of a special rule.
D.
Where this is so, res ipsa loquitur certainly need be viewed no differently from
any other inference. Indeed, commentators have suggested that the Latin be
put aside and that the law speak only about reasonable inferences.
In discussing whether the elements of res ipsa were present, the court referred to
the following conditions: (1) the event in question must be of a kind which does not
ordinarily occur in the absence of negligence; and (2) the agency or instrumentality
causing the harm must have been within the exclusive control of the defendant.
Utica Mutual Insurance Co. v. Ripon Cooperative, 50 Wis.2d 431, 436, 184 N.W.2d
65 (1971).
A.
When these two conditions are present, they give rise to a permissible
inference of negligence, which the jury is free to accept or reject.
B.
Noteworthy in this portion of the court’s decision is the absence of any
reference to a third res ipsa element often cited in the cases: That the
evidence be sufficient to remove the causation question from the realm of
conjecture, but no so substantial that it provides a full and complete
explanation of the event. See, Peplinski v. Fobe’s Roofing, Inc., 193 Wis.2d
6, 17, 531 N.W.2d 597 (1995).
Because it was decided, as a preliminary matter at least, that res ipsa applied,
summary judgment could not be granted to the defendants at that point in the
analysis.
A.
“A primary purpose of the res ipsa loquitur rule is to create a prima facie
showing of negligence thus relieving a claimant of the burden of going
forward with proof of specific acts of negligence.” See, McGuire v. Stein’s
Gift & Garden Center, 178 Wis.2d 379, 395, 504 N.W.2d 385 (Ct. App.
1993).
B.
As such, to obtain a summary judgment, the defendants were obligated to
establish a defense that defeated the plaintiff’s cause of action as a matter of
law.
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X.
C.
The defendant’s argument in this regard was based on the evidence that the
defendant driver had suffered an unforeseen heart attack either before,
during, or after the initial collision.
D.
The central issue in Lambrecht was whether the defendants’ heart attack
evidence defeated the plaintiff’s cause of action as a matter of law or whether
the heart attack evidence rather simply presented a factual defense to be
considered by the jury.
Each side found support for its position in a different line of cases. As noted by the
court of appeals, the case law up to that point sent confusing and mixed signals.
As a result, the court of appeals had certified the matter to the supreme court.
A.
The defense cases – automobile crash cases in which res ipsa was held to
be inapplicable where there was evidence of a non-actionable cause, that is,
a cause for which the defendants would not be responsible:
1.
2.
Klein v. Beeten, 169 Wis. 385, 172 N.W. 736 (1919). This case
involved a directed verdict in favor of the defendant. The plaintiff’s
son was killed when the automobile driven by the defendant suddenly
veered into the ditch. There was no “direct evidence” of driver
negligence. Inspection of the car after the collision revealed a blown
left front tire. It was entirely uncertain whether the blowout preceded
and caused the collision or resulted from the collision. The supreme
court upheld a directed verdict for the defendant, stating that the jury
could only guess whether negligence caused the collision.
a.
“The jury could have done no more than guess as to whether
the accident was the result of careless and negligent operation
of the car or the blow out. Verdicts cannot rest upon guess or
conjecture.”
b.
“It is the duty of the plaintiff to prove negligence afirmatively.”
While res ipsa constitutes such proof, “it is only where the
circumstances leave no room for a different presumption that
the maxim applies. When it is shown that the accident might
have happened as the result of one of two causes, the reason
for the rule fails and it cannot be invoked.”
Baars v. Benda, 249 Wis. 65, 23 N.W.2d 477 (1946), is another case
in which no direct evidence of the defendant’s negligence was offered
to explain his automobile leaving the road, running into a ditch, and
turning over. After the crash the steering wheel was found to be
broken. The jury found the defendant negligent as to management
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and control. The trial court changed the jury’s answers, saying that
the jury could have only speculated whether the crash was caused by
the non-negligent sudden failure of the steering apparatus or by some
negligent conduct on the part of the defendant. Because either
explanation was a possibility, the trial court concluded that there was
no evidence from which the jury could prefer one explanation of the
crash to the other.
3.
a.
The supreme court affirmed, refusing to apply res ipsa and
concluding that the doctrine “does not usually apply to
automobile accidents.”
b.
Without the benefit of the inference and without any direct
evidence of lack of due care, the jury could only speculate.
c.
Since either explanation was a possibility and the record offered
no evidence from which the jury could make a preference, the
directed verdict was held to be proper.
Wood v. Indemnity Insurance Co., 273 Wis. 93, 76 N.W.2d 610
(1956). This is a case which, although decided favorably to the
plaintiff on its particular facts, was heavily relied upon by the defense
in Lambrecht. The reason was a comment in the Wood decision to
the effect that res ipsa would not be applicable in any case in which
the defense had conclusive evidence that the driver had suffered a
heart attack at the time of the crash, even where the timing of the
heart attack (before? during? after?) was not established.
a.
“In order for the facts in [Wood] to have paralleled those in
Baars v. Benda, it would be necessary for the defendant to
have produced conclusive testimony that Mr. Wood had
sustained a heart attack at the time of the accident.”
b.
“If such conclusive testimony had been produced, it would
not have been essential for the defendant to establish that
the heart attack occurred before the jeep left the highway in
order to render inapplicable the rule of res ipsa loquitur.”
Wood, 273 Wis. at 101-02, 76 N.W.2d 610 (emphasis added).
c.
In other words, while the heart attack evidence in Wood was
itself speculative and therefore ultimately did not assist the
defendant in that case, the Wood court was very receptive to
the idea that any conclusive heart attack evidence, regardless
of the timing of the heart attack, would be sufficient to defeat
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the applicability of the res ipsa doctrine and lead to a directed
verdict for the defendant.
4.
B.
Relying on Klein, Baars and Wood, the defendants in Lambrecht
argued that the evidence was conclusive that the defendant driver
had a heart attack and that therefore the doctrine of res ipsa loquitur
was inapplicable. Because, according to the defendants, the heart
attack evidence would force a jury to speculate as to whether the
cause of the accident was actionable or not, res ipsa did not apply
and summary judgment was appropriate.
a.
According to the defendants, the inference of negligence, if it
arose at all, was negated by the conclusive evidence of the
heart attack (even though the evidence as to the timing of that
heart attack was entirely inconclusive).
b.
According to this approach, a finding of negligence under these
facts would be mere conjecture.
The plaintiff’s cases – holding that when the evidence suggesting an
alternative cause of action is inconclusive, res ipsa loquitur does apply and
the question of negligence is for the jury.
1.
Ironically, the Wood case, 273 Wis. 93, 76 N.W.2d 610 (1956), also
contained language lending support to the plaintiff’s position. Wood
involved an automobile that crashed into a tree. The jury in Wood
was not given the res ipsa instruction and the trial court granted a
directed verdict for the defendant. Nonetheless, the defendant’s
heart attack evidence in Wood was so weak as to provide “no
probative value.” As such, the supreme court reversed the judgment
and remanded for a new trial, stating “the mere introduction of
inconclusive evidence [about the heart attack] suggesting another
cause [than negligence] will not entitle the defendant to a directed
verdict.”
a.
“In a situation where it ordinarily would be permissible to invoke
the rule of res ipsa loquitur, such as the unexplained departure
from the traveled portion of the highway by a motor vehicle,
resort to such rule is not rendered improper merely by the
introduction of inconclusive evidence giving rise to an inference
that such departure may have been due to something other
than the negligence of the operator.”
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b.
2.
Consistent with this language from Wood, the supreme court
has subsequently said that an inference of negligence can
persist even after evidence contradicting the inference is
admitted. Weggeman v. Seven-Up Bottling Co., 5 Wis.2d 503,
510, 93 N.W.2d 467 (1958).
Bunkfeldt v. Country Mutual Insurance Co., 29 Wis.2d 179, 138
N.W.2d 271 (1965), involved a truck driver who drove into the
plaintiff’s lane of traffic, causing a collision. In Bunkfeldt, the trial
court granted a directed verdict for the plaintiff, notwithstanding the
fact that the truck driver had told the police that his truck axle started
to go sideways and he could not control the truck. Moreover, an
inspection of the truck after the accident revealed that the dual wheel
had completely separated from the vehicle.
a.
At trial, without presenting any testimony about his own due
care, the defendant argued that the defect represented a nonnegligent cause of the collision. The jury agreed with this
argument, but the trial court then granted the plaintiff’s motion
for a directed verdict, which it had previously taken under
advisement.
b.
On appeal, the supreme court acknowledged that the jury could
draw two reasonable inferences: (1) the wheel separated
before the impact and a mechanical failure, not negligence,
caused the collision; or (2) the driver’s negligence caused the
collision. The court then concluded that the plaintiff had met his
burden of persuasion on the truck driver’s negligence by
establishing that the truck invaded his traffic lane and collided
with his automobile.
c.
The court further concluded that the evidence of mechanical
failure was insufficient to negate the inference of negligence,
because the mechanical failure does not in itself establish
freedom from negligence (the possibility existing that the failure
was the result of faulty inspection or maintenance). Thus, the
inference of negligence was not negated and the directed
verdict for the plaintiff was proper.
d.
Had the Bunkfeldt court followed the analysis used in Klein and
Baars, it would have reversed the directed verdict and
reinstated the jury’s defense verdict: Since the inference of
negligence arising from the incident itself was negated by
evidence of a mechanical failure, the non-actionable cause was
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within the realm of possibility and the jury would have had to
resort to speculation.
3.
4.
Voigt v. Voigt, 22 Wis.2d 573, 126 N.W.2d 543 (1964), involved a
driver who was killed when he drove his automobile into the plaintiff’s
lane of traffic. The plaintiff relied on the inference of negligence. The
defense contended that the deceased’s automobile had skidded and
that this alternative non-negligent conduct explained the collision.
The jury held for the plaintiff and the defendant appealed.
a.
The Voight court stated the issue as: Who had the duty to
establish the negligent or non-negligent nature of the invasion of
the wrong lane of traffic? The court also stated that the plaintiff
in such a situation is entitled to benefit from the inference of
negligence and that the “one who invades the wrong side of the
highway may be able to relieve himself of the inference of
negligence, but the responsibility rests upon him to do so.”
b.
The Lambrecht court again noted that had the Voight court
followed the rule in Klein and Baars, it would have granted
summary judgment to the defendant, since the defendant’s
explanation of a non-actionable cause was within the realm of
possibility. As such, the implication of the Voight holding was
that since the defendant’s evidence of non-negligence was
inconclusive, it did not negate the plaintiff’s inference of
negligence.
Dewing v. Cooper, 33 Wis.2d 260, 147 N.W.2d 261 (1967), was
relied upon by the plaintiff in Lambrecht as much for its procedural
posture as for the language of the holding itself. In Dewing, the
defendant drove his automobile into a parked car, which in turn struck
the plaintiff, pinning him between two automobiles. Evidence was
introduced that the defendant driver suffered a heart attack. The
defense conceded that the plaintiff was entitled to rely upon res ipsa
and the case therefore went to the jury. After a defense verdict, the
plaintiff appealed, arguing that the heart attack evidence was
inconclusive and that the res ipsa inference should have therefore
entitled him to a directed verdict.
a.
The holding in Dewing was that, while the res ipsa inference
may have been properly invoked, the evidence that the driver
suffered a heart attack created a reasonable inference that he
was not negligent, thereby validating the jury’s verdict for the
defendant.
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XI.
b.
In addition, however, the supreme court also stated that the
inference of negligence raised by the doctrine of res ipsa
loquitur was properly invoked at trial, because the “mere fact
that the collision occurred with the [defendant’s] vehicle leaving
the traveled portion of the roadway and striking the parked
vehicle raises an inference of negligence.” Dewing, 33 Wis.2d
at 265, 147 N.W.2d 261 (citing Bunkfeldt).
c.
The defendant in Lambrecht argued that the “properly invoked”
comment in Dewing was not material to the case holding since
the defendant in Dewing had conceded the applicability of res
ipsa.
d.
The Lambrecht court concluded otherwise, pointing out that the
Dewing court “put its blessing on the application of the doctrine
of res ipsa loquitur.” The jury in Dewing was entitled to infer
from the medical testimony that the heart attack preceded the
collision and that the driver was therefore not negligent. The
driver did not, as the plaintiff in Dewing urged, have to present
conclusive evidence that the unforeseen heart attack occurred
before the collision. Significantly, however, the Dewing court
also declined to follow the Lambrecht defendants’ argument that
any heart attack evidence, regardless of timing, eliminates an
otherwise proper res ipsa inference. If that were the law, it
would not have been necessary for the Dewing case to even go
to the jury.
e.
The arguable lesson of Dewing is that the basic facts of a “heart
attack” accident will typically entitle the plaintiff to the res ipsa
inference, although the heart attack evidence also creates a
defense. Neither party is entitled to summary judgment or a
directed verdict – liability is determined by the jury. This logic
most closely approximated the plaintiff’s legal position in
Lambrecht.
The supreme court (Justice Abrahamson, joined by Justices Bablitch, Bradley and
Prosser) attempted to resolve the apparent inconsistency between the plaintiff’s
cases and the defendants’ cases.
A.
The defense cases all involved single-car crashes in which the vehicle simply
drove off the road, whereas the plaintiff’s cases involved vehicles that struck
other vehicles or persons.
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B.
XII.
1.
This could be seen as the difference between the inference arising
from negligence per se and the more basic res ipsa inference.
2.
However, the court itself was not all that impressed with this
distinction, as its previous decisions had not drawn a clear distinction
between the two sorts of inferences – those drawn from the facts of
the case versus those drawn from the doctrine of negligence per se.
See, Totsky v. Riteway Bus Service, Inc., 2000 WI 29, ¶ 28 & n. 6,
233 Wis.2d 371, 607 N.W.2d 637.
More fundamentally, the distinction may simply lie in the strength of the
inference that arises under the circumstances of the collision, i.e., in the
cases cited by the plaintiff, the likelihood of the alleged tortfeasor’s
negligence is substantial enough to permit the plaintiff’s reliance on res ipsa
even where evidence is offered to negate the inference.
1.
Because the initial inferences themselves are of varying strength, the
evidence necessary to negate such an inference depends on its
strength under the circumstantial evidence available in that particular
case.
2.
Because the facts of Lambrecht were more akin to Bunkfeldt, Voigt
and Dewing than to the cases relied upon by the defense, the
supreme court in Lambrecht was willing to hold that the “inconclusive”
heart attack evidence did not rebut the inference and did not entitle
the defendant to summary judgment.
3.
Caveat: In a case involving a weak inference of negligence arising
from the automobile incident, such as when an automobile veers off
the traveled portion of the road without striking another vehicle,
evidence of a non-actionable cause may negate that weak inference
altogether, entitling the defendant to summary judgment.
The supreme court also felt that its approach found support in the Restatement.
A.
Under the Restatement, a complainant may benefit from the res ipsa doctrine
even where the complainant cannot exclude all other explanations.
B.
A complainant “need not conclusively exclude all other possible explanations”
to benefit from an inference of negligence. When a defendant offers
evidence that an event was not caused by his negligence, the inference of
the defendant’s negligence is not necessarily overthrown. Weggeman v.
Seven-Up Bottling Co., 5 Wis.2d 503, 514, 93 N.W.2d 467 (1958).
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XIII.
XIV.
Although denying summary judgment, the supreme court pointed out that the
evidence that the defendant-driver suffered a heart attack gave the defendants two
possible ways to prevail at trial.
A.
The jury might find that the evidence regarding the timing of the heart attack
is inconclusive but may nonetheless decline to draw the permissible res ipsa
inference.
B.
The jury may draw the res ipsa inference, but may also conclude, based on
its evaluation of the evidence, that the defendants carried their burden of
persuasion on the affirmative defense of “illness without forewarning.”
The dissent (authored by Justice Crooks, joined by Justices Wilcox and Sykes)
focused on what it perceived as the majority’s refusal to recognize the “third
element” of res ipsa.
A.
According to this element, where the circumstances are clearly as consistent
with the theory that an accident might be ascribed to a cause nonactionable
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.
B.
The dissent felt that the Lambrecht evidence clearly failed the third element
and criticized the majority’s approach to this element, which it described as a
weighing of “weak” versus “strong” inferences.
C.
The dissent saw this as putting 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.
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