text:
    In the Interest of Cesar G., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Cesar G., Respondent-Appellant-Petitioner.
    Supreme Court

      No. 02-2106.

      Oral argument March 24, 2004.

    — Decided June 3, 2004.

    2004 WI 61
    (Also reported in 682 N.W.2d 1.)

      Sykes, J., took no part.
    For the respondent-appellant-petitioner there were briefs and oral argument by Eileen A. Hirsch, assistant state public defender.

      For the petitioner-respondent the cause was argued by Shannon Wittenberger, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This case is a review of an unpublished decision of the court of appeals. Cesar G. seeks review of a court of appeals decision affirming the circuit court's order of the circuit court for Brown County, Richard J. Dietz, judge, refusing to stay that portion of the dispositional order requiring Cesar to register as a sex offender. We granted review on two issues:

1) Does Wis. Stat. § 938.34(16) (2001-02) authorize a circuit court to stay that part of a dispo-sitional order requiring a delinquent child to register as a sex offender?
2) If a circuit court has discretion to stay a dispo-sitional order requiring a delinquent child to register as a sex offender, what criteria should the circuit court consider in exercising that discretion?

¶ 2. We answer the first question in the affirmative. A circuit court has discretion under Wis. Stat. § 938.34(16) to stay that part of a dispositional order requiring a delinquent child to register as a sex offender.

¶ 3. In response to the second question, we conclude that in determining whether to stay such an order, a circuit court should consider the seriousness of the offense as well as the factors enumerated in Wis. Stat. §§ 938.34(15m)(c) and 301.45(lm)(e). The court of appeals concluded that the circuit court properly exercised its discretion in the present case by refusing to stay the sex offender registration requirement. We disagree with the court of appeals.

¶ 4. We conclude that the circuit court based its decision not to issue the stay on the incorrect assumption that it did not have the authority to issue a stay under Wis. Stat. § 938.34(16). Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court to exercise its discretion in deciding whether to issue a stay based on the appropriate factors.

HH

¶ 5. Cesar G. was adjudicated delinquent for first-degree sexual assault, contrary to Wis. Stat. § 940.225(l)(c), and first-degree sexual assault of a child, party to a crime, contrary to Wis. Stat. § 948.02(1). Cesar was 12 years old at the time of the assault.

¶ 6. At trial, 12-year-old Elizabeth M. testified that she, Cesar, Tony, and Kristian were at Cesar's house listening to music and hanging out. According to Elizabeth, she and the three boys went into Cesar's garage and Tony closed and locked the door to the garage. Cesar told her to "flash" them and she. refused. Cesar then grabbed her arms and Tony grabbed her legs and she fell. Once Elizabeth was on the ground Tony pulled her shirt over her head and Tony and Cesar grabbed her breasts. Elizabeth struggled to get away but Cesar and Tony were holding her down. Tony then pulled the victim's pants and underwear down and put his fingers in her vagina. Cesar then put his fingers in her vagina and she kicked and he stopped. They then let her up and everyone left the garage.

¶ 7. Cesar testified that he only grabbed the victim to try to help her get away from Tony and that he never touched her sexually. The court found Cesar delinquent on both counts: first-degree sexual assault and first-degree sexual assault of a child, party to a crime.

¶ 8. At a dispositional hearing a social worker from the Brown County Human Services Department Juvenile Court Unit recommended that Cesar be placed at Lincoln Hills School. The circuit court ordered a psychological evaluation to help appraise dispositional alternatives. The psychologist recommended in-home placement with intensive supervision. The circuit court ordered that Cesar G. be placed at Lincoln Hills School but then stayed the execution of that order. The circuit court did not, however, stay the numerous other provisions set forth in the dispositional order.

¶ 9. Cesar's attorney requested the circuit court to stay that portion of the dispositional order requiring Cesar to register as a sex offender. The circuit court denied the motion.

¶ 10. On appeal, Cesar argued that the circuit court denied his request because it incorrectly concluded that it did not have the authority to stay the sex offender registration requirement. The court of appeals determined that the circuit court had assumed that it had the authority to stay the registration requirement and that it properly exercised its discretion when it denied Cesar's request to stay the sex offender registration requirement.

hH hH

¶ 11. We turn first to the issue of whether a circuit court has authority under Wis. Stat. § 938.34(16) to stay a dispositional order requiring a delinquent child to register as a sex offender. Interpretation of a statute presents a question of law that this court decides independently of the circuit court and court of appeals but benefiting from their analyses.

¶ 12. We begin with Wis. Stat. § 938.34(15m)(am), which states that "except as provided in par. (bm)," if a juvenile is adjudicated delinquent on the basis of a violation under chapters 940, 944; or 948 or §§ 943.01 to 943.15, the circuit court may require the juvenile to comply with the registration requirements of § 301.45 if the court determines that the underlying conduct was sexually motivated and that it would be in the interest of public protection to have the juvenile register. The word "may" in (15m) (am) appears to grant the circuit court discretion to determine whether to require a juvenile to comply with the registration requirements of § 301.45. Cesar was adjudicated delinquent on the basis of violations of chapters 940 and 948 and thus comes within § 938.34(15m)(am).

¶ 13. We must next determine whether Cesar falls within the "except clause" of Wis. Stat. § 939.35(15) (am). The except clause refers to § 939.34(15m)(bm). Wisconsin Stat. § 938.34(15m)(bm) states that if a juvenile is adjudicated delinquent on the basis of a violation of one or more of the statutes Usted in that section, then "the court shall require the juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45(lm)." Cesar falls within (bm). He was found delinquent based on violations of two of the statutes listed under Wis. Stat. § 938.34(15m)(bm). The word "shall" in (15m) (bm) appears to require a circuit court to mandate compliance with the registration requirements unless the juvenile falls within § 301.45(lm).

¶ 14. Thus far our analysis leads to the conclusion that the circuit court was required to order Cesar to comply with sex offender registration pursuant to Wis. Stat. § 301.45(lm).

¶ 15. As a result, we must examine Wis. Stat. § 301.45(lm) to determine whether a circuit court may relieve Cesar from the registration requirement under Wis. Stat. § 301.45. Section 301.45(lm) lists several requirements, all of which must be met before an individual may qualify for an exception to the registration requirement. Cesar does not meet these requirements and does not qualify for the section 301.45(lm) exception.

¶ 16. We therefore turn to the statutory provision for a stay to determine whether the stay provision would enable a circuit court to stay that part of a dispositional order requiring the juvenile to register. The stay provision of Wis. Stat. § 938.34(16) provides that after ordering a disposition under § 938.34, a circuit court may "enter an additional order staying the execution of the dispositional order."

¶ 17. The State argues that the stay provision of Wis. Stat. § 938.34(16) is not applicable to the registration requirement. The State asserts that because § 301.45 requires registration of juvenile delinquents and provides an exception, § 301.45 cannot be trumped by § 938.34(16) relating to a stay. Nothing in the texts of the statutory provisions supports the State's interpretation.

¶ 18. The State further contends that because Wis. Stat. § 938.34(16) refers to the staying of a dispo-sitional order and not to the conditions set forth in that order, like registration, the stay provision does not apply to the registration requirement. The State posits that the registration requirement listed in Cesar's dis-positional order is not a disposition, but instead is "a condition of a disposition." The State argues that upon adjudication of a qualified sex offense, a dispositional order includes a placement (the disposition) and conditions, such as treatment, payment of fines or restitution, or compliance with sex offender treatment.

¶ 19. The State argues that the sex offender registration requirement is a condition rather than a disposition for two reasons: It "cannot stand alone"; and Wis. Stat. § 938.354(16) allows for a stay of a dispositional order, not a stay of conditions or parts of a dispositional order. In other words, if a dispositional order (the placement) is stayed, the stay is contingent on the completion of conditions.

¶ 20. The State's argument relies in large part on the court of appeals decision in In re Daniel T. In that case, the circuit court ordered placement of the juvenile defendant in custody for one year and registration as a sex offender pursuant to Wis. Stat. § 301.45. Daniel T. sought to have his registration requirement stayed, but the circuit court questioned its authority to do so. The court of appeals adopted the disposition-condition distinction and held that § 301.45 provides the only exception to the mandatory registration requirement.

¶ 21. In adopting the disposition-condition distinction, the court of appeals explained that Wis. Stat. § 938.34(16) did not allow a stay of the condition of sex offender registration, reasoning as follows:

[Wisconsin Stat. § 938.34(16)] allows the dispositional order to be stayed provided the stay is contingent on the juvenile fulfilling the conditions set forth in the original dispositional order. Here, the disposition is the year-long placement; registration as a sex offender is a condition "specified in the dispositional order ...." If a stay were issued, the most it could do would be to stay Daniel's placement at Northwest Child and Adolescent Center. Even then, he would have to fulfill the registration condition to keep the full disposition in abeyance.

The court of appeals further stated in Daniel T. that a circuit court could not stay a part or single condition of a dispositional order. In this respect the court of appeals contravened a prior court of appeals decision, In re Kendall G., that interpreted Wis. Stat. § 938.34(16) to permit a circuit court "to stay the imposition of a dispositional order or a portion thereof."

¶ 22. In Daniel T, the court of appeals has in effect rewritten subsection (16) to read as follows: "After ordering a disposition under this section, other than a sub. (15m) disposition [relating to sex offender registration requirements], [a circuit court may] enter an additional order staying the execution ...."

¶ 23. The Daniel T. case is not precedential for this court, however, because a petition for review was filed. The Daniel T. case is presently being held awaiting the disposition of the case at bar.

¶ 24. We are not persuaded by either the State's or the Daniel T. court of appeals' reading of these statutes. Neither the text of Wis. Stat. § 938.34 nor any authority supports the State's or court of appeals' interpretation of the sex offender registration requirement in § 938.34(15m) as a "condition" rather than a disposition.

¶ 25. Upon examination of the text, history, and purpose of these statutory provisions, we conclude that the sex offender registration requirement is part of a disposition under Wis. Stat. § 938.34 and that § 938.34(16) allows a circuit court to stay a dispositional order or any number of the dispositions set forth within the dispositional order.

¶ 26. The text of Wis. Stat. § 938.34 supports our reading of § 938.34(16). First of all, § 938.34 begins by stating that if a circuit court adjudges a juvenile delinquent, it "shall enter an order deciding one or more of the dispositions of the case." The statute thus explicitly envisions the possibility of several dispositions.

¶ 27. Second, Wis. Stat. § 938.34 lists 40 different programs, activities or placements a circuit court might order, and refers to them as "[t]he dispositions under this section." This list includes, among others, counseling, supervision, teen court program, intensive supervision, placement, electronic monitoring, transfer of legal custody, type 2 child caring institution placement, serious juvenile offender program, correctional placement, restitution, supervised work program or other community service work, victim offender mediation program, drug testing, deoxyri-bonucleic acid analysis requirements, and sex offender registration requirements.

¶ 28. The list in § 938.34 does not differentiate between "conditions" and "dispositions," and the entire list is encompassed in the words "dispositions under this section." Section 938.34(16) speaks of "conditions that are specified in the dispositional order" but does not describe what it means by conditions. Nothing in the text of § 938.34 explicitly or implicitly prohibits a circuit court from staying sex offender registration.

¶ 29. Furthermore, the State's argument that the legislature intended to divide the list set forth in Wis. Stat. § 938.34 into dispositions and conditions is not supported in the history of the statute.

¶ 30. A review of the statute's history reveals that the legislature intended the stay in Wis. Stat. § 938.34(16) to apply to the registration requirement. Mandatory sex offender registration was added to chapter 48, the Children's Code, as § 48.34(5) by 1993 Act 98, effective December 25, 1993. When the legislature revised the Children's Code and created the Juvenile Justice Code (JJC), the legislature included new dispo-sitional options, including sex offender registration (§ 938.34(15)) and the new authority to stay any disposition. That the legislature did not continue the prior mandatory sex offender registration by expressly excluding sex offender registration from the dispositions that could be stayed under Wis. Stat. § 938.34(16) supports the conclusion that the legislature intended a circuit court to have the power to stay a sex offender registration dispositional order.

¶ 31. Although the State offers treatment, payment of forfeitures or restitution, and compliance with sex offender treatment, as well as sex offender registration, as examples of conditions of disposition, both the Juvenile Justice Study Committee Report (that led to the adoption of the Juvenile Justice Code) and the Legislative Reference Bureau Analysis of the law creating the Juvenile Justice Code treat fines, restitution, and treatment as "dispositions."

¶ 32. Moreover, the State's argument that the circuit court should be prevented from staying portions of a dispositional order is inconsistent with the purpose of the Judicial Justice Code. A goal of the Code is to "allow[] the judge to utilize the most effective disposi-tional plan" in order to "respond to a juvenile offender's needs for care and treatment, consistent with the prevention of delinquency, each juvenile's best interest and protection of the public."

¶ 33. Allowing a stay of that part of the disposi-tional order requiring registration might, in a given case, be consistent with the offender's needs, the prevention of delinquency, the protection of the public and the juvenile's best interest. A statutory scheme designed to give circuit courts flexibility to tailor disposi-tional orders to the circumstances of a particular case would give a circuit court discretion to stay all or some portions of a dispositional order, including sex offender registration.

¶ 34. If the stay applies to the registration requirement, then when a circuit court enters an order mandating registration and also enters an order staying registration, the stayed registration requirement never goes into effect if the juvenile successfully completes the dispositional order. If the juvenile violates the dispositional order, the mandatory registration requirement goes into effect. This result is consistent with the rehabilitative purposes of the Juvenile Justice Code.

¶ 35. In contrast, the State argues that allowing courts to stay the sex offender registration requirement runs counter to the purpose of the Juvenile Justice Code, with its emphasis on protecting the public. The State asserts that the legislature did not intend to treat adult and juvenile sex offenders differently with regard to the registration requirement. According to the State, the statutory scheme evidences the legislative intent to protect the public by requiring a person who is adjudicated delinquent or convicted of a qualifying sex offense and who does not fall within the statutory exception to register as a sex offender.

¶ 36. The State's emphasis on the public protection purpose exaggerates this aspect of the Juvenile Justice Code at the expense of the other purposes, including rehabilitation. The purpose of the Juvenile Justice Code was to adopt an approach that "balances rehabilitation, personal accountability and public protection and which best serves both the offender and society." Allowing a circuit court to stay sex offender registration is consistent with this purpose and approach. A circuit court should have the flexibility to tailor a juvenile's dispositional plan to achieve the equally important goals.

¶ 37. The policies the State urges that favor a mandatory registration requirement in non-juvenile cases simply do not apply in juvenile cases where a circuit court has flexibility to tailor a juvenile's disposition to achieve the multiple goals of the Juvenile Justice Code. As we explained in In re Hezzie R., which did not involve a stay, the Juvenile Justice Code is not a criminal code:

The requirements of § 301.45, therefore, are only imposed on a juvenile who is adjudicated delinquent where the particular facts of the case and concerns for public safety dictate it. This is not criminal punishment and does not equate the JJC to a criminal code.

¶ 38. The State attempts to combat this reasoning by contending that Wis. Stat. § 301.45, not § 938.34, is the more specific statute, and therefore § 301.45 controls when a juvenile may be excused from the sex offender registration requirements. The State relies on Daniel T, in which the court of appeals explained the relationship of the general and specific statutes as follows:

Here, the more specific statute is the mandatory registration of Wis. Stat. § 301.45. If § 301.45 did not exist, a different sanction could replace it for adjudicatory purposes under Wis. Stat. § 938.34(Í5m)(bm). In other words, when the court is confronted with a juvenile sex offender, the general juvenile justice statute refers courts to the specific statute of § 301.45 to discover the penalty. Section 301.45(lm) is very specific about when the registration requirement is inapplicable — no part of § 301.45 allows registration to be superceded by a judicial stay. Moreover, § 301.45(5)(a) makes the registration requirements applicable for fifteen years after adjudication, with no mention of the court's ability to toll this time limit by issuing a stay. Thus, a stay may not be issued to circumvent § 301.45 registration requirements.

¶ 39. In this instance, it is difficult to determine which is the more specific statute. Wisconsin Stat. § 301.45 is specific as to sex offender registration, while § 938.34(16) is specific as to juvenile dispositional orders. In such a case, the canon of construction that a specific statute governs a general one does not assist us in interpreting the statutes.

¶ 40. In sum, we conclude that the sex offender registration requirement established in Wis. Stat. § 938.34(15m) is a disposition. Furthermore, Wis. Stat. § 938.34(16) allows the circuit court to stay one or more of the § 938.34 dispositions contained in its disposi-tional order, including the disposition requiring the juvenile to register as a sex offender.

¶ 41. Reading the statutes in this way comports with the texts, is consistent with the statutes' history and purpose, and harmonizes the statutes.

HH HH I — I

¶ 42. Having concluded that a circuit court has the authority to stay the execution of that part of a dispositional order requiring a delinquent child to register as a sex offender, we now turn to the question whether the circuit court properly exercised its discretion in denying Cesar's motion for a stay. The function of this court is not to exercise discretion in the first instance but to review a circuit court's exercise of discretion. "[A] discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purposes of achieving a reasonable determination." An appellate court will affirm a circuit court's discretionary decision as long as the circuit court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Therefore, the record on appeal must "reflect the circuit court's reasoned application of the appropriate legal standard to the relevant facts in the case."

¶ 43. The circuit court denied the .motion to stay, expressly stating that it was "not convinced" that it had the statutory authority to stay the sex offender registration requirement. In its discussion, the circuit court referred to Cesar's age and stated that it considered the charge a "serious offense." The circuit court failed to compare Cesar's age to the age of the victim and it did not discuss the relationship of Cesar and the victim, the bodily and emotional harm to the victim, or the probability that Cesar will commit other violations in the future. The circuit court's ordered evaluation concluded that Cesar was "a physically and emotionally immature youngster" who was amenable to treatment, and who would not be likely to continue "perpetration of antisocial behaviors."

¶ 44. The circuit court offered the following reasons for its decision to deny the stay:

The sexual offender registration by my recollection is something that stays in effect for fifteen years and I harken back and again I understand Cesar's age. I understand the — the circumstances involved here but I harken back to my comments at the beginning of this that this was a serious offense. If Cesar were 17, on the facts of this case probably he would — he would he looking at some period of incarceration. Certainly he would be looking at — at sexual — as—as a registrar— register of — in as a sexual offender. And although I've stayed that in one other case that I can recall by stipulation between Defense counsel and the State I am still not convinced that I have the statutory authority to — to stay that.
Under the circumstances that will keep Cesar registered until he is 27 or 28 years old. I don't think that's unreasonable. I am not going to stay execution of that. He shall register as a sexual offender.

¶ 45. The court of appeals concluded that the circuit court had "assumed it had the authority to stay the registration requirement" and "exercised its discretion when it denied Cesar's request to stay the sex offender registration requirement." Furthermore, the court of appeals concluded that it was "within the circuit court's prerogative to emphasize the seriousness of the offense as the driving factor in denying Cesar's request."

¶ 46. In contrast to the court of appeals, we view the circuit court's statement that it was not convinced it had the statutory authority to stay the sex registration requirement as persuasive that it made its decision based on an incorrect view of the law. As such, the circuit court's decision denying Cesar's motion to stay the registration requirement constitutes an erroneous exercise of discretion. The court of appeals decision must therefore be reversed and the cause remanded to the circuit court for exercise of its discretion.

¶ 47. Both parties suggest that if the cause is remanded the circuit court should consider the seriousness of the offense, as well as the factors listed in Wis. Stat. § 938.34(15m)(c) and repeated in § 301.45(lm)(e), when deciding whether to stay its sex offender registration order under § 938.34(16).

¶ 48. It is, of course, entirely appropriate that a circuit court consider the seriousness of the offense in deciding any dispositional order of a juvenile.

¶ 49. Moreover, because the legislature has provided that a circuit court may consider certain factors when deciding under Wis. Stat. § 938.34(15m)(c) whether it is in the interest of public protection to require a juvenile to register as a sex offender, and because the legislature has set forth substantially the same factors in § 301.45(lm)(e) for a circuit court to consider in determining whether it is not necessary in the interest of public protection to require the person to comply with the sex offender registration requirements, we conclude a circuit court should consider these factors (as well as the seriousness of the offense) in deciding whether to stay a dispositional order requiring a juvenile to register as a sex offender.

¶ 50. The factors set forth by the legislature in Wis. Stat. §§ 938.34(15m)(c) and § 301.45(lm)(e) and which this court adopts, along with the seriousness of the offense, for the circuit court to consider in deciding whether to grant a stay of that part of a dispositional order requiring a juvenile to register as a sex offender, are as follows:

1. The ages, at the time of the violation, of the juvenile and the victim of the violation;
2. The relationship between the juvenile and the victim of the violation;
3. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim;
4. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions;
5. The probability that the juvenile will commit other violations in the future; and
6. Amy other factor that the court determines may be relevant to the particular case.

¶ 51. We also hold that, upon moving the circuit court to issue a stay of the sex offender registration requirement, the juvenile has the burden to prove by clear and convincing evidence that, based on these factors, a stay should be granted in his or her case. We so hold because the legislature placed this burden of proof on the person seeking an exception to the registration requirement under Wis. Stat. § 301.45(lm)(e). The burden of proof we set forth attaches when a juvenile files a motion requesting a stay of the sex offender registration requirement; the circuit court may, on its own initiative, without a motion by the juvenile, decide to stay the sex offender registration requirement as part of its dispositional order.

¶ 52. In sum, we conclude that a circuit court has the authority under Wis. Stat. § 938.34(16) to stay that part of a dispositional order requiring a delinquent juvenile to register as a sex offender. In considering whether to stay such an order, a circuit court should consider the seriousness of the offense as well as the factors enumerated in Wis. Stat. §§ 938.34(15m)(c) and 301.45(lm)(e). Because we conclude that the circuit court based its decision not to stay the sex offender registration on an erroneous view of the law, that is, that it did not have the authority to stay an order requiring a delinquent juvenile to register as a sex offender, we reverse the decision of the court of appeals and remand the cause to the circuit court so that it may exercise its discretion.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

¶ 53. DIANE S. SYKES, J., did not participate.

        State v. Cesar G., No. 02-2106, unpublished slip op. (Wis. Ct. App. April 1, 2003).

       All references to the Wisconsin statutes are to the 2001-02 version unless otherwise indicated.

       The court of appeals did not address this issue. State v. Cesar G., No. 02-2106, unpublished slip op., ¶ 3 (Wis. Ct. App. Apr. 1, 2003).

       Cesar's dispositional order states in pertinent part:
      Cesar shall be placed in the secure correctional facility at Lincoln Hills School, W4380 Copper Lake Rd, Irma, WI, 54442-9720. This order shall be STAYED.
      Cesar shall serve 30 days in Secure Detention, to report on 3/21/02, and upon release, is to have at least 60 days electronic monitoring, unless more time is deemed necessary by the Department.
      Cesar is to have no contact with the victim listed in the petition.
      Cesar is to be responsible for up to $200 in restitution, to be paid through the Family Service Restitution Program.
      Cesar shall attend a sexual perpetrator treatment program.

        Cesar shall attend a Cultural Education Program through Catholic Social Services, for continued acculturation and assimilation guidance, sex-respect and education, and facilitation of any community service.
      Cesar shall submit to a DNA sample.
      Cesar shall attend school daily and work up to the best of his ability. The Department is to contact the school to see if Cesar's educational needs are properly addressed.
      Cesar and his family shall go through counseling, as deemed appropriate by the Department.
      Cesar shall have no contact with the co-defendant, Tony C.
      Cesar shall be responsible for a $25.00 Victim/Witness fee.
      Cesar must register as a sex offender.
      Cesar shall have no contact with anyone under the age of 13, unless supervised by an adult.
      Cesar shall have no further law violations.

       Wisconsin Stat. § 938.34(15m)(am) provides in pertinent part:
      Except as provided in par. (bm), if the juvenile is adjudicated delinquent on the basis of any violation, or the solicitation, conspiracy or attempt to commit any violation, under ch. 940, 944 or 948 or ss. 943.01 to 943.15, the court may require the juvenile to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and that it would be in the interest of public protection to have the juvenile report under s. 301.45.

       Wisconsin Stat. § 938.34(15m)(bm) provides in pertinent part:
      If the juvenile is adjudicated delinquent on the basis of a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05,948.055, 948.06, 948.07, 948.075,948.08,948.095, 948.11 (2)(a) or (am), 948.12, 948.13, or 948.30, or of s. 940.30 or 940.31 if the victim was a minor and the juvenile was not the victim's parent, the court shall require the juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45 (lm).

       Wisconsin Stat. § 301.45(lg) requires that "[ejxcept as provided in sub. (lm), a person shall comply with the reporting requirements under this section if he or she meets one or more of the following criteria: (a) Is convicted or adjudicated delinquent on or after December 25, 1993, for a sex offense...."

       Wisconsin Stat. § 938.34(16) provides as follows:
      (16) Stay of order. After ordering a disposition under this section, enter an additional order staying the execution of the dispositional order contingent on the juvenile's satisfactory compliance with any conditions that are specified in the dispositional order and explained to the juvenile by the court. If the juvenile violates a condition of his or her dispositional order, the agency supervising the juvenile shall notify the court and the court shall hold a hearing within 30 days after the filing of the notice to determine whether the original dispositional order should be imposed, unless the juvenile signs a written waiver of any objections to imposing the original dispositional order and the court approves the waiver. If a hearing is held, the court shall notify the parent, juvenile, guardian and legal custodian, all parties bound by the original dispositional order and the district attorney or corporation counsel in the county in which the dispositional order was entered of the time and place of the hearing at least 3 days before the hearing. If all parties consent, the court may proceed immediately with the hearing. The court may not impose the original dispositional order unless the court finds by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order.

        In re Daniel T., 2003 WI App 200, 266 Wis. 2d 1032, 670 N.W.2d 95.

        Id., ¶ 10.

        Id., ¶ 10 n.4.

       In re Kendell G., 2001 WI App 95, 243 Wis. 2d 67, 625 N.W.2d 918.

        Id., ¶ 16. The Daniel T. court characterized the Kendell G. language as dicta. Daniel T, 266 Wis. 2d 1032, ¶ 10 n.4.

       We note that "a disposition under sub. (4m) [correctional placement] must be combined with a disposition under sub. (4n) [aftercare supervision on release from a secured correctional institution]." See Wis. Stat. § 938.34.

       The introduction to Wis. Stat. § 938.34 states in pertinent part:
      Disposition of juvenile adjudged delinquent. If the court adjudges a juvenile delinquent, the court shall enter an order deciding one of more of the dispositions of the case as provided in this section under a care and treatment plan .... The dispositions under this section are:....
      Wis. Stat. § 938.34 (emphasis added).

       Wis. Stat. §938.34(1).

       Wis. Stat. § 938.34(2).

       Wis. Stat. § 938.34(2m).

       Wis. Stat. § 938.34(2r).

       Wis. Stat. § 938.34(3).

       Wis. Stat. § 938.34(3g).

       Wis. Stat. § 938.34(4).

       Wis. Stat. § 938.34(4d).

       Wis. Stat. § 938.34(4h).

       Wis. Stat. § 938.34(4m).

       Wis. Stat. § 938.34(5).

       Wis. Stat. § 938.34(5g).

       Wis. Stat. § 938.34(5r).

       Wis. Stat. § 938.34(6s).

       Wis. Stat. § 938.34(15).

       Wis. Stat. § 938.34(15m).

         See Juvenile Justice Study Committee, Juvenile Justice: A Wisconsin Blueprint for Change at 16-17 (Jan. 1995) ("The committee also recommends the creation of the following new dispositions: ... Contribution of a percentage of any income that the juvenile receives while placed in an out-of-home placement as restitution to the juvenile's victim.. . . Inpatient alcohol or other drug abuse treatment.... A forfeiture not to exceed $100 for a violation of a criminal law that is applicable only to a juvenile ....").

       The Legislative Reference Bureau's Analysis contained in 1995 Wisconsin Assembly Bill 130 is derived from the Juvenile Justice Study Committee Report and states: "This bill creates the following new dispositions:.... Contribution of a percentage of any income that the juvenile receives while placed in an out-of-home placement towards restitution of the juvenile's victim... . Inpatient alcohol or other drug abuse treatment.... A forfeiture not to exceed $100 for a violation of a criminal law that is applicable only to a juvenile ...."

       Wis. Stat. § 938.01(2)(f).
      Two of the Juvenile Justice Code's authors have expressed the Code's goal of permitting a circuit court to create individualized dispositional plans in each case in the following terms:
      The balance of rehabilitation, personal accountability and community protection created in the new code will provide juvenile courts statewide with a broader range of options to respond to young people's unlawful behavior. Courts will be better able to create a dispositional plan appropriate to the needs of the individual and society under the circumstances of a particular case.
      Dennis J. Barry & Bonnie Ladwig, Time Ripe for Change, 69 Wisconsin Lawyer 4, 10, 13 (Apr. 1996).
      "Written views of members of the committee can be considered as authoritative statements regarding legislative intent." State v. Gordon, 111 Wis. 2d 133, 143, 330 N.W.2d 564 (1983) (citing State v. Genova, 77 Wis. 2d 141, 151, 252 N.W.2d 380 (1977)). See also State v. Picotte, 2003 WI 42, ¶ 14, 261 Wis. 2d 249, 661 N.W.2d 381, (citing William A. Platz, The Criminal Code, 1956 Wis. L. Rev. 350). William A. Platz was one of the chief architects of the 1953 and 1955 versions of the Wisconsin Criminal Code.

        See In re Hezzie R., 219 Wis. 2d 848, 873, 580 N.W.2d 660 (1998) ("Although the legislature subsequently enacted the JJC to incorporate a new balanced approach in juvenile delinquency proceedings, the legislature did not lose sight of the fact that the JJC provisions are distinct from the criminal code provisions, and that the rehabilitation of juveniles is a primary objective.").

       Juvenile Justice Study Committee, supra note 32, at 10.
      See also the statement of legislative purpose set forth in Wis. Stat. § 938.01(2).

        In re Hezzie R., 219 Wis. 2d 848, 580 N.W.2d 660 (1998).

        Hezzie R., 219 Wis. 2d at 881.

        Daniel T. 266 Wis. 2d 1032, ¶ 9.

        Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).

        Long v. Long, 196 Wis. 2d 691, 695, 539 N.W.2d 462 (Ct. App. 1995). See also State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 541, 363 N.W.2d 419 (1985); Shuput v. Lauer, 109 Wis. 2d 164, 177-78, 325 N.W.2d 321 (1982).

        State v. Delgado, 223 Wis. 2d 270, 281, 588 N.W.2d 1 (1999).

        State v. Cesar G., No. 02-2106, unpublished slip op., ¶ 3 (Wis. Ct. App. Apr. 1, 2003).

       Id, ¶ 6.

        See Wis. Stat. §§ 938.34(15m)(c), 301.45(lm)(e).


source: Caselaw Access Project

author: JON E WILCOX, J. ANN WALSH BRADLEY, J.

license: Public Domain

text:
    Mackenzie Fandrey, a minor, by James B. Connell, her Guardian ad Litem, Plaintiff-Appellant, Wisconsin Physicians Service Insurance Corporation, Plaintiff, v. American Family Mutual Insurance Company, Defendant-Third-Party Plaintiff-Respondent, v. Michelle M. Egner, Third-Party Defendant.
    Supreme Court

      No. 02-2628.

      Oral argument November 4, 2003.

    Decided June 3, 2004.

    2004 WI 62
    (Also reported in 680 N.W.2d 345.)

      Bradley, J., concurs.
    Abrahamson, C.J., joins.
    For plaintiff-appellant there were briefs (in the court of appeals) by James B. Connell and Crooks, Low & Connell, S.C., Wausau, and oral argument by James B. Connell.

    For the defendant-third-party plaintiff-respondent there was a brief by John A. Kramer, Michael J. Roman and Zalewski, Klinner & Kramer, LLP, Wausau, and oral argument by John A. Kramer.

   JON E WILCOX, J.

¶ 1. This case involves two questions certified to us by the court of appeals. First, the court of appeals has asked us to determine whether a court may use traditional public policy factors to limit liability under Wis. Stat. § 174.02 (1999-2000), commonly known as the "dog bite statute," when liability under the statute is otherwise established. Second, if we determine that liability under § 174.02 may be precluded based on public policy factors, the court of appeals has asked us whether the Marathon County Circuit Court, Patrick M. Brady, Judge, properly applied those factors to limit liability in this case. We hold that a court may preclude liability under § 174.02 based on public policy factors and that the circuit court correctly applied those factors in granting summary judgment in the case before us. Therefore, we affirm the decision of the circuit court, which granted American Family Mutual Insurance Company's motion for summary judgment.

I. FACTUAL BACKGROUND

¶ 2. This case comes before us following a grant of summary judgment in favor of American Family Mutual Insurance Company (American Family). The operative facts are straightforward and undisputed, as the plaintiff, Mackenzie Fandrey (Mackenzie), did not submit any competing summary judgment materials.

¶ 3. On December 23, 2000, Michelle Rausch (formerly known as Michelle Egner) and her three-year-old daughter, Mackenzie, drove to the home of Nicole Beliunas (formerly known as Nicole Patton) to deliver Christmas cookies. Michelle and Nicole had been best friends for a number of years and frequently visited each other. On the day in question, the Beliunases did not invite Michelle over, and Michelle had not called ahead to determine if the Beliunases were home. Upon reaching the Beliunases' home, Michelle knocked on the back door, opened it, stepped inside, and called out. No one answered. Apparently, the Beliunases were at a movie and had left their door unlocked. Michelle proceeded to place the cookies on the kitchen table, which was a short distance from the door. She then put Mackenzie on a chair. While Michelle was writing a note to Nicole, Mackenzie, unbeknownst to Michelle, left the chair and proceeded into the Beliunases' living room. Michelle subsequently heard Mackenzie scream and turned to see Mackenzie bleeding from the mouth and standing near the Beliunases' dog, Molly.

II. PROCEDURAL POSTURE

¶ 4. Mackenzie, by her guardian ad litem, brought suit against the Beliunases' insurer, American Family, alleging a cause of action under § 174.02. American Family answered, arguing as an affirmative defense that Mackenzie was a trespasser in the Beliunases' home and that the claim should be precluded based on public policy. American Family also filed a third-party complaint against Michelle, seeking contribution and indemnification due to Michelle's alleged negligent supervision of Mackenzie. Additional facts are set forth below in the opinion.

¶ 5. The circuit court found that Michelle and Mackenzie did not have implied consent to enter the Beliunases' house. It also found that Michelle knew the Beliunases kept Molly in their house. The court, relying on Alwin v. State Farm Fire & Casualty Co., 2000 WI App 92, 234 Wis. 2d 441, 610 N.W.2d 218, then found that public policy precluded Mackenzie's claim under § 174.02. The court stated:

I don't know what else they could have done as responsible dog owners that would be any more restrictive than to keep the dog inside their home. . .. [S]trict liability under Section 174.02 for the child's injury is wholly out of proportion to the culpability on the part of the homeowners and that allowance of recovery would place too unreasonable of a burden on the homeowners.
And I believe that allowance of recovery under this set of facts would enter a field that has no sensible or just stopping point.

Mackenzie appealed, and we accepted certification of the aforementioned questions from the court of appeals.

III. ANALYSIS

¶ 6. Whether public policy acts as a bar to a claim in any given case is a question of law that this court decides de novo. Rockweit v. Senecal, 197 Wis. 2d 409, 425, 541 N.W.2d 742 (1995). Mackenzie contends that public policy cannot be used by courts to modify or curtail the effect of a legislative enactment that imposes strict liability because "[t]he ultimate source of public pobcy in this state is the state legislature." (Appellant's Br. at 8). Mackenzie further contends that courts should not interfere with the legislature's decision regarding the sensible stopping point of the law, and that the legislature, not the judiciary, is the appropriate forum for determining whether a homeowner should be liable under the dog bite statute. Mackenzie principally relies upon two cases in support of this argument: Borgins v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911), and Meunier v. Ogurek, 140 Wis. 2d 782, 412 N.W.2d 155 (Ct. App. 1987).

¶ 7. In Borgins, this court decreed:

Public policy on a given subject is determined either by the constitution itself or by statutes passed within constitutional limitations. In the absence of such constitutional or statutory determination only may the decisions of the courts determine it.. . . When acting within constitutional limitations, the legislature settles and declares the public policy of a state, and not the court.

Borgins, 147 Wis. at 351. Similarly, in Meunier, when interpreting § 174.02, the court of appeals stated:

[The statute] unambiguously states the conditions under which a dog owner is liable, we may not add more by implication or statutory construction.
. . . [The statute] simply states that the owner is liable for damages caused by the dog injuring or causing injury to a person, livestock or property.

Meunier, 140 Wis. 2d at 786.

¶ 8. American Family responds that Bor gins is inapposite because the term "public policy" was used in Borgins in the context of the broader notion of the state's public policy, whereas the "public policy" as used in the present case refers to the courts' long practice of precluding liability for a tortious act in a particular case based on Wisconsin's view of "cause." For the reasons discussed below, we agree with American Family's argument and hold that courts may use the six traditional public policy factors to bar a claim under § 174.02, even if a plaintiff otherwise establishes liability.

¶ 9. Resolution of this issue requires not only an inquiry into the nature of § 174.02, but also an analysis of the history of the six "public policy" factors and their relation to Wisconsin's view of "cause" in tort claims. Our analysis begins with the recognition that § 174.02 is a codified tort action. Also, we note the fact that § 174.02 imposes strict liability on a dog owner for injuries caused by the dog." 'Strict liability' is a judicial doctrine which relieves a plaintiff from proving specific acts of negligence and protects him from certain defenses." Meunier, 140 Wis. 2d at 785. Thus, § 174.02 obviates the need for a plaintiff to prove specific acts of negligence in each case. However, the statute still requires a plaintiff to establish the other elements common to all negligence claims, causation and damages.

¶ 10. It is with this understanding that we now examine the history behind the application of the six public policy factors used to preclude liability and the relationship between "public policy" and "proximate cause." In Wisconsin, when "public policy" is used in the context of precluding tort liability, the term is being used as a synonym for "proximate cause." See generally Morden v. Continental A.G., 2000 WI 51, ¶ 60, 235 Wis. 2d 325, 611 N.W.2d 659 (discussing the relationship between the terms "causation," "proximate cause," "legal cause," "cause-in-fact," and "public policy"); Morgan v. Pa. Gen. Ins. Co., 87 Wis. 2d 723, 735-38, 275 N.W.2d 660 (1979) (same); Kendall W Harrison, Wisconsin's Approach to Proximate Cause, 73 Wisconsin Lawyer 20 (Feb. 2000) (discussing the historic evolution of the term "proximate cause" and the public policy factors used to limit tort liability).

¶ 11. Early in Wisconsin jurisprudence, the term "proximate cause" referred to two distinct concepts. The first use of the term was to describe "limitations on liability and on the extent of liability based on [] lack of causal connection in fact." Richard V. Campbell, Duty, Fault, and Legal Cause, 1938 Wis. L. Rev. 402, 403. The second use of the term was to describe "limitations on liability and on the extent of liability based on . .. policy factors making it unfair to hold the party [liable]." Id. The second use of the term probably had its origins from the venerable Judge Andrews: "What we do mean by the word 'proximate' is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics." Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting) (emphasis added).

¶ 12. The first use and meaning of the term "proximate cause" has long since been abandoned in Wisconsin in favor of the "substantial factor" test used to establish cause-in-fact, which is a jury issue. Blashaski v. Classified Risk Ins. Corp., 48 Wis. 2d 169, 174-75, 179 N.W.2d 924 (1970); Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 237-38, 55 N.W.2d 29 (1952). However, the second use and meaning of the term "proximate cause" still remains a part of Wisconsin's legal cause analysis.

The court has acknowledged that legal cause in negligence consists of two parts, the first being cause-in-fact, the second "proximate cause." Regarding the first component, or cause-in-fact, this court has stated that the test is whether the negligence was a "substantial factor" in producing the plaintiffs injury."
. . . "[P]roximate cause," the second component of causation in negligence cases, which is separate from the cause-in-fact determination, may deny recovery. "Proximate cause" involves public policy considerations and is a question of law solely for judicial determination.

Sanem v. Home Ins. Co., 119 Wis. 2d 530, 537-58, 350 N.W.2d 89 (1984) (citations omitted). See also Morgan, 87 Wis. 2d at 735 (noting that "[l]egal cause in negligence actions is made up of two components, cause-in-fact and 'proximate cause,' or policy considerations"). "These public policy considerations are an element of legal cause, though not a part of the determination of cause-in-fact." Id. at 737.

¶ 13. This relation between public policy factors and the second step in the legal cause analysis is still recognized today.

To discern whether [cause] exists, we must determine whether the defendant's actions were a "cause-in-fact" of the injuries. If they were, we explore whether the conduct of the defendant was a "proximate cause" of the harm sustained by the plaintiff. Proximate cause involves public policy considerations for the court that may preclude the imposition of liability.... After the determination of the cause-in-fact of an injury, a court may still deny recovery after addressing policy considerations, or legal cause.

Morden, 235 Wis. 2d 325, ¶ 60; See also Alvarado v. Sersch, 2003 WI 55, ¶ 42, 262 Wis. 2d 74, 662 N.W.2d 350 (Sykes, J., dissenting) ("What we in Wisconsin refer to as public policy limitations on liability, Judge Andrews catalogued as factors that govern the court's determination of legal or 'proximate cause.'"); World Wide Prosthetic Supply, Inc. v. Mikulsky, 2002 WI 26, ¶ 25, 251 Wis. 2d 45, 640 N.W.2d 764 ("tort damages are limited only by the concept of 'proximate cause' or certain public policy considerations."); Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 261, 580 N.W.2d 233 (1998) (noting that legal cause consists of cause-in-fact and public policy considerations, or "proximate cause"); Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 119, 564 N.W.2d 692 (1997) (" 'In tort actions, the only limitations [on damages] are those of "proximate cause" or public policy considerations.'") (quoting Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 575, 335 N.W.2d 834 (1983)). Thus, when a court precludes liability based on public policy factors, it is essentially concluding that despite the existence of cause-in-fact, the cause of the plaintiffs injuries is not legally sufficient to allow recovery. Despite the historical origins of the public policy factors in relation to "proximate cause," we note that Wisconsin has largely "[j]ettison[ed] the term 'proximate cause' in favor of 'public policy.'" Kendall W. Harrison, Wisconsin's Approach to Proximate Cause, 73 Wisconsin Lawyer 20, 54 (Feb. 2000).

¶ 14. When Wisconsin courts currently speak of "cause," they do so in the context of the substantial factor test for cause-in-fact. Given Wisconsin's broad formulation of duty and causation (cause-in-fact) it is true that "the determination to deny liability is essentially one of public policy rather than of duty or causation," Rockweit, 197 Wis. 2d at 425, if "causation" is understood in its current context as referring to "cause-in-fact," or "substantial factor." Thus, this court has stated: "Even though a jury has found negligence and that such negligence was a 'cause' (or substantial factor) in producing a plaintiffs damages, liability may. be denied under factors that we have termed public policy considerations." Beacon Bowl, Inc. v. Wis. Elec. Power Co., 176 Wis. 2d 740, 761, 501 N.W.2d 788 (1993) (parenthetical in original). See also Bowen v. Lumber-mens Mut. Cas. Co., 183 Wis. 2d 627, 654, 517 N.W.2d 432 (1994) ("These public policy considerations are an aspect of legal cause, although not a part of the determination of cause-in-fact."); Rieck v. Med. Protective Co., 64 Wis. 2d 514, 517, 219 N.W.2d 242 (1974) (stating "negligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that a defendant is liable for plaintiffs injuries"); Alwin, 234 Wis. 2d 441, ¶ 12 (recognizing that "public policy considerations may preclude liability even where negligence and negligence as a cause-in-fact of injury are present").

¶ 15. However, it is important to recognize and appreciate this relationship between "public policy" and the second step in the legal cause analysis, formerly referred to as "proximate cause." Whether public policy is conceptualized as the second step in the legal cause analysis, or a fifth step following the duty, breach, cause, damage inquiry, the fact remains that "public policy" is inexorably tied to legal cause in Wisconsin. When we preclude liability based on "public policy factors," formerly referred to as "proximate cause," we are simply stating that the cause-in-fact of the injury is legally insufficient to allow recovery. In doing so, we are engaged in judicial line drawing, "endeavoring] to make a rule in each case that will be practical and in keeping with the general understanding of mankind." Palsgraf, 162 N.E. at 104 (Andrews, J., dissenting). We do so in order to assure that "in cases so extreme that it would shock the conscience of society to impose liability, the courts may step in and hold as a matter of law that there is no liability." Pfeifer, 262 Wis. at 238.

¶ 16. Thus, it should be manifest that what we mean by "public policy" as referred to in tort law is completely different than the use of the term in Bor-gins. The legislature's determination of "public policy" in a broader context relates to what is politically appropriate for the state as a whole. When "public policy" is used in this context, it is true that the judiciary is limited to applying the policy the legislature has chosen to enact, and may not impose its own policy choices. See Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶ 34, 267 Wis. 2d 59, 671 N.W.2d 633. This stands in stark contrast to the judiciary's use of "public policy," formerly referred to as "proximate cause," which refers to the practice of limiting tort liability as part of the legal cause analysis "on a case-by-case basis." Beacon Bowl, 176 Wis. 2d at 763.

¶ 17. While public policy as a limit on liability was conceived in negligence law, the doctrine has grown and progressed to other areas of tort law. Wisconsin has since rendered public policy factors applicable in strict liability tort actions. See Ransome v. Wis. Elec. Power Co., 87 Wis. 2d 605, 625, 275 N.W.2d 641 (1979)(discuss-ing public policy factors in context of strict liability claim but concluding liability should not be denied in that particular case); Beacon Bowl, 176 Wis. 2d at 763 (concluding that under Ransome, public policy factors could be applied to cut off liability under strict liability action, but that liability should not be denied in that particular case).

¶ 18. In Physicians Plus Insurance Corp. v. Theresa Mutual Insurance Co., 2002 WI 80, ¶ 32, 254 Wis. 2d 77, 646 N.W.2d 777, this court concluded that public policy could be utilized to bar a claim for maintaining a public nuisance. In Physicians Plus, the court noted that liability for a public nuisance does not depend upon proof of the plaintiffs lack of ordinary care. Id.., ¶ 27. The court then compared liability for failure to abate a public nuisance to violations of the safe place statute and stated that liability for maintaining a public nuisance may arise solely on the basis of notice of a dangerous condition. Id., ¶ 28 & n.24. The court further noted that when all the elements for failure to abate a public nuisance are proven, liability is analogous to negligence per se — failure to act in accordance with statutory minimum duties. Id., ¶ 43. The court then proceeded to apply the public policy factors. Id., ¶ 44. Therefore, Physicians Plus supports the proposition that public policy factors may be applied even where the underlying cause of action does not involve proof of specific acts of negligence.

¶ 19. Moreover, the fact that liability in this case is predicated upon a statute rather than a common-law cause of action is not dispositive, as § 174.02 still sounds in tort; it is a codified cause of action for a civil wrong. This court has in the past noted that public policy may preclude liability based on the safe-place statute, Wis. Stat. § 101.11. Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220, 227 & n.5, 270 N.W.2d 205 (1978). While we are aware that the safe-place statute does not itself create a cause of action, it is the violation of the statute that constitutes negligence. Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960). Further, in Fondell, we noted that "when a safe-place violation has been proven, the law presumes the. damage was caused by the failure to perform the safe-place duty [under § 101.11] to maintain the premises as safe as the nature of the place reasonably permits." Fondell, 85 Wis. 2d at 230-31. Despite the fact that causation is presumed to flow from the statutory violation, we also stated in Fondell that:

There is no liability upon the failure to meet the required duty until such negligence is found to be the legal cause of the plaintiffs injuries....
This is not to ignore case law supporting the use of public policy factors in cutting off liability even where negligence and a causal relation have been established.

Id. at 227 & n.5. Therefore, even when causation is presumed from the violation of a statute, that cause must still be the legal cause of the injury, such that public policy may act as a bar to recovery.

¶ 20. Similarly, the fact that § 174.02 does not require proof that the plaintiff was negligent, but rather imposes strict liability, does not preclude application of public policy factors. First, while § 174.02 creates a strict liability action, negligence principles are still applicable to § 174.02, as the dog owner's liability is expressly "subject to" the doctrine of comparative negligence under Wis. Stat. § 895.045. Wis. Stat. § 174.02(l)(a).

¶ 21. Also, § 174.02 requires that the dog "cause" the injuries of the plaintiff. "Legislation is presumed to employ terminology consistent with that Used by the courts." State v. Foley, 153 Wis. 2d 748, 752, 451 N.W.2d 796 (Ct. App. 1989). Under Wis. Stat. § 990.01(1), "technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning." Thus, the legislature, in using and retaining the word "cause" in § 174.02, is presumed to be aware that "cause" in Wisconsin consists both of a factual, cause-in-fact inquiry, and a legal determination as to the sufficiency of that cause-in-fact based on public policy factors. Therefore, even where it is proven that a dog is the cause-in-fact of the plaintiffs injuries under § 174.02, liability may still be denied on the basis of the public policy factors used to determine legal cause.

¶ 22. In addition, the court of appeals has twice indicated that public policy factors may be used to limit liability under § 174.02. In Becker v. State Farm Mutual Automobile Insurance Co., 141 Wis. 2d 804, 807-08, 416 N.W.2d 906 (Ct. App. 1987), the defendant's dog ran into the street, causing damage to the plaintiffs car. The circuit court found that § 174.02 (1983-84) did not apply to "innocent acts" of a dog. Id. at 808. In reversing the circuit court's judgment, the court of appeals noted that the statute was a strict liability statute subject to the defense of contributory negligence. Id. at 816. The court of appeals also noted the language from Meunier, supra, in rejecting the defendant's argument that the statute did not apply to innocent acts of a dog. Id. at 816-17. However, the court of appeals also stated: "we note that the strict liability rule which we recognize in this case is tempered by three considerations: public policy, the rules of comparative negligence and the rules of causation." Id. at 817 (emphasis added).

¶ 23. At oral argument, much was made of the fact that the applicable statute in Becker, Wis. Stat. § 174.02(l)(a) (1983-84), provided that "[t]he owner of a dog may be liable," and that the statute was subsequently amended by 1985 Wis. Act 92 to read, as it does currently, that "the owner of a dog is liable." The Becker court was cognizant of this change but, after examining the legislative history, determined that "the purpose of the amendment of sec. 174.02, Stats. (1983-84), was to clarify that comparative negligence principles applied to the strict liability provisions of the statute." Becker, 141 Wis. 2d at 815. Apparently, while some circuit courts correctly interpreted the "may be" language in § 174.02 (1983-84) as permitting the application of comparative negligence principles, other circuit courts concluded that the statute was not subject to comparative negligence. Id. Hence the legislature removed "may be liable" and in its place inserted "is liable," but also specifically made the statute subject to § 895.045, the comparative negligence statute. 1985 Wis. Act 92. Specifically, the Becker court found that there was "[n]o other motivating factor for the change in the statutory language ...." Becker, 141 Wis. 2d at 815. Thus, the fact that the statute currently reads "is liable" does not diminish the significance of the court of appeals' recognition in Becker that the public policy factors are applicable to § 174.02.

¶ 24. While Becker discussed the applicability of public policy factors, it did not apply them to the facts of the case; thus, the language is arguably dicta. However, in Alwin, 234 Wis. 2d 441, ¶¶ 11-14, the court of appeals specifically applied the public policy factors to preclude liability where the plaintiff was injured after tripping over the defendant's sleeping dog. While it is true that the issue of whether the public policy factors could be applied to the case was not specifically before the court, the court of appeals' conclusion in Alwin that application of those factors prevented liability presupposed that public policy could he applied to the statute.

¶ 25. Therefore, Mackenzie's reliance upon Meu-nier is misplaced. As noted above, the court of appeals in Meunier stated: "The statute is complete. It permits no additions." Meunier, 140 Wis. 2d at 786. However, Mackenzie takes this language entirely out of context. The plaintiffs wife in Meunier was riding a farm tractor when she noticed a dog running under the machine. Startled, she popped the clutch and the tractor tipped over, killing her. Id. at 785. At issue was whether the applicable statute imposed liability on the dog's owner even in the absence of proof that the dog was mischievous or vicious. Id. at 784. Under the previous version of the statute, liability ensued only if the dog was mischievous or vicious. Id. at 787 n.4. However, the statute at issue in Meunier had since been amended to eliminate the reference to mischievous or vicious dogs. Id. Apparently, the circuit court relied on the older version of the statute in granting summary judgment to the defendant. Id. at 784. It was in this context that the above-quoted language was used. The defendant was arguing that despite the change in the statutory language, a dog owner could not be liable unless the dog was mischievous, vicious, or had unusual characteristics. Id. Meunier did not discuss the application of public policy factors to § 174.02. Thus, Meunier does not stand for the proposition that a court may not use public policy factors to limit liability under § 174.02.

¶ 26. Wisconsin courts have at least twice indicated that strict liability under § 174.02 can be tempered by the judiciary. The court of appeals in Becker suggested that public policy could be used to cut off liability under the statute, and the court of appeals in Alwin actually precluded liability based on public policy. As this court has previously indicated:

Where a law passed by the legislature has been construed by the courts, legislative acquiescence in or refusal to pass a measure that would defeat the courts' construction is not an equivocal act. The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged[.]

Zimmerman v. Wis. Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648 (1968). Thus, "[[legislative silence with regard to new court-made decisions indicates legislative acquiescence in those decisions." State v. Olson, 175 Wis. 2d 628, 641, 498 N.W.2d 661 (1993), cited in State v. Lindell, 2001 WI 108, ¶ 155 n.8, 245 Wis. 2d 689, 629 N.W.2d 223 (Abrahamson, C.J., dissenting). The legislature has not in any way indicated that the judiciary is precluded from applying public policy factors to temper the sometimes-harsh results of strict liability under § 174.02. Thus, we hold that Wisconsin courts may utilize the traditional six public policy factors, formerly referred to as "proximate cause," to limit liability in appropriate cases under § 174.02.

¶ 27. Mackenzie contends that even if public policy factors may be applied to § 174.02, the circuit court should have conducted a trial before applying them. It is true that we have declined to apply the public policy factors if "[t]he factual connections are so attenuated that a full trial should precede this court's determination of policy considerations." Coffey v. City of Milwaukee, 74 Wis. 2d 526, 543, 247 N.W.2d 132 (1976). However, a full trial is not always necessary, as "[t]his court can, and has, decided such public policy questions [before a trial]." Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 42, 251 Wis. 2d 171, 641 N.W.2d 158. When the policy questions are fully presented to us and the facts are easily ascertainable, this court can utilize public policy to preclude liability before a trial. See Alvarado v. Sersch, 2003 WI 55, ¶ 18, 262 Wis. 2d 74, 662 N.W.2d 350.

¶ 28. Here, the underlying facts are easily ascertainable and are not disputed, as the depositions of Michelle and Nicole are consistent with each other. This case comes to us after a grant of summary judgment, and Mackenzie did not submit any competing summary judgment materials to the circuit court. Michelle admitted that she did not have express permission to enter the Beliunases' home. Further, she admitted that the two usually set up visits in advance and this was the first time she (Michelle) had actually ventured into the inside of the Beliunases' home when they were away. These are the essential facts that are relevant to the application of public policy factors. Further, the parties have fully briefed the relevant public policy factors applicable in this case. As the facts supporting application of public policy factors are easily ascertainable and undisputed and the relevant policy issues have been fully presented, there is no need to conduct a trial before this court can apply those factors.

¶ 29. Having determined that public policy may be used to limit liability under § 174.02, we now turn to address whether the circuit court properly applied those factors to dismiss Mackenzie's claim. This court reviews a circuit court decision to grant summary judgment independently, using the same methodology as the circuit court. Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶ 9, 244 Wis. 2d 758, 628 N.W.2d 833. The application of public policy factors to a specific set of facts to deny recovery is a question of law that this court decides de novo. Beacon Bowl, 176 Wis. 2d at 761. Liability may be denied solely on the basis of one of the factors. Rieck, 64 Wis. 2d at 518. In reviewing a grant of summary judgment, this court examines the evidence in the summary judgment materials and reasonable inferences therefrom in a light most favorable to the non-moving party. Kraemer Bros. Inc. v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 566-67, 278 N.W.2d 857 (1979).

¶ 30. The circuit court dismissed Mackenzie's claim on the basis of three of the public policy factors: 1) recovery would be too out of proportion with the culpability of the Beliunases; 2) allowing recovery would place too unreasonable a burden on the homeowners; and 3) allowing recovery would enter a field that has no sensible or just stopping point. Specifically, the circuit court took into account the fact that Michelle and Mackenzie did not have implied consent to enter the Beliunases' home and that Michelle was aware that the Beliunases kept Molly in the house. Finally, the court commented that requiring the homeowners to do something more than keep their dogs inside with the door shut when the homeowners are away would be too unreasonable.

¶ 31. Mackenzie alleges that these policy factors are not applicable to the case at bar. Mackenzie argues that the first two policy factors relied upon by the circuit court are irrelevant because this is a strict liability action and the negligence or culpability of the tortfeasor is inapposite. She also argues that the third factor does not apply because the legislature has already determined the just and sensible stopping point of the statute.

¶ 32. In rejecting these arguments, we note that the court in Beacon Bowl, 176 Wis. 2d at 761-63, determined that the six public policy factors were applicable in strict product liability actions, but did not suggest that certain factors categorically would not apply. Mackenzie's argument that culpability is not a factor is unavailing. While strict liability relieves a plaintiff from proving specific acts of negligence, Meu-nier, 140 Wis. 2d at 785, it does not preclude a court from considering the extent of such negligent activity, if any, in determining whether public policy factors bar the claim. See Beacon Bowl, 176 Wis. 2d at 760-66 (considering public policy factors in light of Wisconsin Electric Power Company's negligence in failing to trim trees after the jury found that the electricity it provided was defective and unreasonably dangerous).

¶ 33. Further, the court in Alwin, 234 Wis. 2d 441, ¶ 14, denied liability, in part, because "to impose liability under the dog owner statute for injuries arising solely from a sleeping dog would effectively result in a pure penalty for dog ownership." This is synonymous with saying that allowing recovery would place too unreasonable a burden on the tortfeasor. Finally, Mackenzie's argument as to the third factor is little more than a reiteration of her argument that public policy factors cannot be used to limit liability under a strict liability statute. We conclude that all three factors relied upon by the circuit court are applicable to the case at bar.

¶ 34. Applying these factors to the case, we agree with the circuit court that recovery here would be too out of proportion with the culpability of the Beliunases. Essentially the only thing the Beliunases did "wrong" here was to leave their door unlocked. Nicole testified that, knowing Molly did not like to be around children, she always made a conscious effort to separate Molly from Mackenzie or other children when they were present. We also note that Nicole's uncontroverted testimony establishes that the Beliunases also had another dog, Casey, that Mackenzie would play with by jumping on and pulling his tail and ears.

¶ 35. Further, we agree that liability here would place too unreasonable a burden on the Beliunases. The circuit court indicated that requiring homeowners to do anything more than keep their dogs in the house when the homeowners are away would be unreasonable. We concur with American Family that to allow recovery here would result in clearly unreasonable consequences, as dog owners would be forced, prior to leaving their homes, to kennel their dogs, muzzle them, or lock them in cages. We think it unreasonable to force homeowners to keep their homes and dogs under lock and key at all times to avoid liability.

¶ 36. Perhaps the strongest factor weighing against imposing liability is that to do so would enter a field that has no sensible or just stopping point. While we need not determine whether Mackenzie, as a young child, would qualify as a technical trespasser, we do note that it is undisputed that Michelle and Mackenzie did not have express consent to enter the Beliunases' home. The uncontested summary judgment materials submitted by the defendants establish that neither Nicole nor her husband gave permission to Michelle or Mackenzie to enter their home. Michelle admits to this and further admits that she did not call ahead the day the injury occurred to notify the Beliunases that she would be stopping over. Further, even viewing the summary judgment materials in the light most favorable to Mackenzie, there is no evidence, or reasonable inferences therefrom, that support the claim that Michelle and Mackenzie had implied consent to enter the Beliu-nases' home.

¶ 37. While Mackenzie attempts to characterize Michelle's unauthorized entry into the Beliunases' home as a routine occurrence between friends, the summary judgment materials do not support this contention. Michelle stated at her deposition that it was the usual practice for her and Nicole to set up visits in advance, and the two would visit each other's home approximately once a month. Michelle stated that she had stopped by the Beliunases' home unannounced on only three occasions and Michelle could recall only one other time when she entered the Beliunases' home when they were not present. However, Michelle noted that the day the injury occurred was the first time that she actually walked inside the home, as opposed to just standing in the doorway and calling out. Further, Nicole had entered Michelle's home on only one prior occasion when it was vacant, but this incident occurred when the two were in high school and after the two had previously arranged for Nicole to pick up a game. Thus, there is no evidence of a "custom" between the parties of entering each other's homes when they were vacant. The fact that the parties were best friends is not sufficient to establish implied consent.

¶ 38. In addition, the evidence unequivocally demonstrates that the Beliunases did not have any knowledge of Michelle previously entering their home. Nicole stated that she was not aware that Michelle had ever entered their home when they were not present. Further, Nicole was not aware that Michelle would sometimes step inside the doorway to her home and call out to see if the Beliunases were home. These facts are not contradicted by Michelle's testimony. Michelle agreed that the Beliunases did not know that she was coming over the day in question and that she did not have permission to enter their home. Thus, viewing the summary judgment evidence in a light most favorable to Mackenzie, we conclude that the undisputed facts contained in the record support the circuit court's conclusion that Michelle and Mackenzie did not have actual or implied consent to enter the Beliunases' home.

¶ 39. Were we to allow liability in such a case, liability would enter a field that has no sensible or just stopping point. For example, were we to allow liability here, the door would be open to imposing liability on a homeowner when a burglar enters his or her home and is injured by a dog. While Mackenzie contends that this contingency is better dealt with by the use of comparative negligence principles, public policy would undoubtedly preclude liability even if a putative thief meticulously picked a locked door and gingerly entered the premises, only to unexpectedly encounter a vigilant hound. We conclude that to allow liability in this case, where the plaintiff entered the dog owner's home without express or implied permission, would enter a field that has no sensible or just stopping point.

IV SUMMARY

¶ 40. In conclusion, we hold that the six traditional public policy factors the judiciary uses to preclude liability in tort actions are applicable to Wis. Stat. § 174.02. Further, we hold that public policy precludes the imposition of liability under the facts of this case because: 1) recovery would he too out of proportion with the culpability of the homeowners; 2) allowing recovery would place too unreasonable a burden on the homeowners; and 3) allowing recovery would enter a field that has no sensible or just stopping point.

By the Court. — The order of the Marathon County Circuit Court is affirmed.

ANN WALSH BRADLEY, J.

¶ 41. (concurring). The first certified question is whether a court may use traditional public policy factors to limit liability under Wis. Stat. § 174.02.1 agree with the majority that the answer to the inquiry is "yes." Because the majority engages in an expansive discussion, I write separately to focus on two parts of the majority opinion that answer the inquiry.

¶ 42. I focus first on a part of paragraph 22. I agree with the majority that because § 174.02 uses the word "cause" and implicates negligence by providing for a defense of contributory negligence, public policy factors can limit liability here. Majority op., ¶ 22.

¶ 43. As it traces the paths of Wisconsin jurisprudence, the majority explains that "cause" refers to two distinct concepts: cause-in-fact and proximate cause. Id., ¶ 12. It expands the discussion to address the historic evolution of the six public policy factors and their relationship to proximate/legal cause. Id., ¶ 10.

¶ 44. The majority announces that "[wjhether public policy is conceptualized as the second step in the legal cause analysis, or a fifth step following the duty, breach, cause, damage inquiry, the fact remains that 'public policy' is inexorably tied to legal cause in Wisconsin." Id., ¶ 15. Finally, after using the terms "proximate cause" and "public policy" interchangeably, it ultimately concludes that public policy factors can limit liability. Id., ¶ 40. Lest the focus be lost, I emphasize that the answer as I see it lies in the above-referenced part of paragraph 22.

¶ 45. I focus next on footnote 7 of the majority opinion. The majority, at times, uses the terms "proximate cause" and "public policy" interchangeably. This may leave the reader wondering about the continued vitality of using proximate cause to limit liability. Footnote 7, however, provides the answer. Simply put, in Wisconsin we use. public policy factors, not proximate cause, to limit liability.

¶ 46. For the reasons stated above, I respectfully concur.

¶ 47. I am authorized to state that SHIRLEY S. ABRAHAMSON, C.J. joins this concurrence.

       In Colla v. Mandella, 1 Wis. 2d 594, 598-99, 85 N.W.2d 345 (1957) this court first articulated the following six public policy factors that could be used by courts to limit liability in negligence claims: 1) "[T]he injury is too remote from the negligence"; 2) Recovery is "too 'wholly out of proportion to the culpability of the negligent tort-feasor'3) "[I]n retrospect it appears too highly extraordinary that the negligence should have brought about the harm"; 4) Allowing recovery "would place too unreasonable a burden upon [the tortfeasor]"; 5) Allowing recovery would be "too likely to open the way to fraudulent claims"; or 6) Allowing recovery "would 'enter a field that has no sensible or just stopping point.'"

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version, unless otherwise indicated.

       Section 174.02(1) provides, in pertinent part:
      (1) Liability for injury, (a) Without notice. Subject to s. 895.045 [comparative negligence] and except as provided in s. 895.57(4) [immunity for damage due to unauthorized release of animals], the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.

        Armstrong v. Milwaukee Mut. Ins. Co., 202 Wis. 2d 258, 262, 549 N.W.2d 723 (1996); Malik v. Am. Family Mut. Ins. Co., 2001 WI App 82, ¶¶ 21-23, 27, 243 Wis. 2d 27, 625 N.W.2d 640; Alwin v. State Farm Fire & Cas. Co., 2000 WI App 92, ¶ 1, 234 Wis. 2d 441, 610 N.W.2d 218; Fifer v. Dix, 2000 WI App 66, ¶ 7, 234 Wis. 2d 117, 608 N.W.2d 740; Malone v. Fons, 217 Wis. 2d 746, 758, 580 N.W.2d 697 (Ct. App. 1998); Pattermann v. Pattermann, 173 Wis. 2d 143, 149, 496 N.W.2d 613 (Ct. App. 1992).

       Strict liability is to be contrasted with "absolute liability," a "judicial doctrine which imposes civil liability on proof of a statutory violation, such as violation of child labor laws." Meunier v. Ogurek, 140 Wis. 2d 782, 785-86, 412 N.W.2d 155 (Ct. App. 1987).

       "[T]he owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property." Wis. Stat. § 174.02(l)(a).

       This discussion is not intended as an invitation to reintroduce the term "proximate cause" into Wisconsin's legal lexicon or to alter the current state of Wisconsin's tort jurisprudence. Rather, this discussion represents an accurate historical analysis of Wisconsin's use of the term "proximate cause" in relation to public policy factors. We are simply recognizing that what has previously been labeled as "proximate cause," i.e. the second step in the legal cause analysis, is now referred to as "public policy factors." This concept has not changed; only the label has done so. We emphasize that this opinion does nothing to change Wisconsin's common law relating to duty, breach, and cause in negligence claims. Once it is established that a plaintiffs negligence was a substantial factor in producing an injury, the only limitation on liability is public policy factors— what was previously referred to as "proximate cause." We use the terms "proximate cause" and "public policy factors" interchangeably only because, historically, Wisconsin courts have used these terms interchangeably.

       While it was clear under Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 238, 55 N.W.2d 29 (1952), that a court could limit tort liability based on public policy, the six factors currently used were first delineated in relation to proximate cause in Colla, 1 Wis. 2d at 598-99. Some of these factors were previously used to determine the question of "duty." Waube v. Warrington, 216 Wis. 603, 613, 258 N.W. 497 (1935), abrogated by Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183-85, 77 N.W.2d 397 (1956). However, Wisconsin has long since followed the minority rationale in Palsgrafv. Long Island Railroad Co., 162 N.E. 99, 103 (N.Y. 1928), which posits that everyone owes a duty of care to the entire world. A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 483-84, 214 N.W.2d 764 (1974). In addition to Wisconsin's broad formulation of duty, it is important to note that Wisconsin's substantial factor test for cause-in-faet is equally as broad, as it eliminates the doctrines of superseding and intervening cause. See Ryan v. Cameron, 270 Wis. 325, 331, 71 N.W.2d 408 (1955). As noted infra, these doctrines are now subsumed in the public policy analysis.

       It is clear that in Rockweit v. Senecal, 197 Wis. 2d 409, 425, 541 N.W.2d 742 (1995), we utilized the term "causation," as courts currently do, in reference to "cause-in-fact." See id. at 426 (" 'It is recognized by this and other courts that even where the chain of causation is complete and direct, recovery against the negligent tort-feasor may sometimes be denied on grounds of public policy ....'") (emphasis added) (quoting Colla 1 Wis. 2d at 598-99). Thus, two years after Rockweit was decided, this court, in an opinion written by the author of today's decision, declared: " 'In tort actions, the only limitations [on damages] are those of "proximate cause" or public policy considerations.'" Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 119, 564 N.W.2d 692 (1997) (quoting Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 575, 335 N.W.2d 834 (1983)) (emphasis added).

        Sanem v. Home Ins. Co., 119 Wis. 2d 530, 537-58, 350 N.W.2d 89 (1984); Morgan v. Pa. Gen. Ins. Co., 87 Wis. 2d 723, 735, 275 N.W.2d 660 (1979).

        Hicks v. Nunnery, 2002 WI App 87, ¶ 86,253 Wis. 2d 721, 643 N.W.2d 809 (Dykman, J., dissenting).

       It is true that the last two public policy factors bear little relation to cause-in-fact. Hicks, 253 Wis. 2d 721, ¶ 92 (Dykman, J. dissenting). Yet, this misses the point, as the public policy factors are related to the legal sufficiency of the cause-in-fact. The other four factors directly bear on older judicial doctrines regarding cause-in-fact and duty.
      The court's first public policy factor, "whether the injury is too remote from the negligence," is a restatement of the old chain of causation test....
      What this factor does ... is to revive the "intervening" or "superseding" cause doctrine and dress it in new clothes....
      The second factor, "whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor," helps to determine ... the discrepancy between the degree of negligence and the degree of injury....
      The third factor, "whether in retrospect it appears too extraordinary that the negligence should have brought about the harm," is a variant of the reasonable foreseeability test [used previously to determine duty],... Because the court has determined that everyone owes a duty of ordinary care to others, this third factor is necessary to provide some limit for bizarre consequences and unforeseeable plaintiffs.
      The fourth factor, "whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor" recognizes that tort law should not seek to deter all conduct that involves risk, just conduct that involves too much risk. Many of the cases in which the public policy factors are necessary involve situations where the actual harm was not reasonably foreseeable.

        Kendall W. Harrison, Wisconsin's Approach to Proximate Cause, 73 Wisconsin Lawyer 20, 55-56 (Feb. 2000); See also Morgan, 87 Wis. 2d at 738 (noting that "[o]ne policy ground for relieving a negligent tortfeasor from liability for conduct which has been a substantial factor in producing injury is the intervening and superseding cause doctrine.... The doctrine is another way of saying the negligence is too remote from the injury to impose liability.").

       "[C]onsent may be implied from the conduct of the owner, from the relationship of the parties, or by custom." Baumgart v. Spierings, 2 Wis. 2d 289, 293, 86 N.W.2d 413 (1957). Likewise, "consent... may be implied from custom, or when the owner's conduct is such as would warrant a reasonable person having knowledge thereof to believe that the owner had given consent to come upon the premises." Verdoljak v. Mosinee Paper Corp., 192 Wis. 2d 235, 243, 531 N.W.2d 341 (Ct. App. 1995). Thus, the landowner's knowledge of another entering his land and his resulting behavior is a key factor in determining implied consent. See also Baumgart, 2 Wis. 2d at 294 (finding implied consent where landowner knew children would play on his property and never warned them to leave or stay off of his land).