source: Caselaw Access Project

author: ANN WALSH BRADLEY, J. DIANE S. SYKES, J.

license: Public Domain

text:
    Dora O. Alvarado and Lenny Gonzales, Jessica Gonzales, Billy Gonzales, Roberto Gonzales, by their Guardian ad Litem, Donald J. Murphy, Plaintiffs-Appellants-Petitioners, Partners Mutual Insurance, Subrogated Party-Plaintiff, v. Peter Sersch d/b/a D.P. Painters and Hastings Mutual Insurance, Defendants-Intervenors, Oakbrook Corporation, ABC Unidentified Insurance Company, Meriter Retirement Services, Inc., and OHIC Insurance Company, Defendants-Respondents.
    Supreme Court

      No. 01-1715.

      Oral argument March 18, 2003.

    Decided June 5, 2003.

    2003 WI 55
    (Also reported in 662 N.W.2d 350.)

      For the plaintiffs-appellants-petitioners there were briefs by Daniel W. Hildebrand and DeWitt Ross & Stevens S.C., Madison, and Donald J. Murphy and Murphy Vaughn & Pressentin LLC, Monona, and oral argument by Daniel W. Hildebrand.

    For the defendants-respondents there was a brief by John A. Nelson, Timothy W. Feeley, and von Briesen & Roper, S.C., Milwaukee, and oral argument by John A. Nelson.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioners, Dora Alvarado and her four minor children, seek review of a published court of appeals decision affirming a circuit court grant of summary judgment in favor of the respondents, Oakbrook Corporation, Meriter Retirement Services, Inc., and Meriter's insurer. Alvarado asserts that the court of appeals erred in using public policy factors to limit liability before all the facts were considered. Because we conclude that there are genuine issues of material fact, we determine that the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

HH

¶ 2. Meriter Retirement Services, Inc. (Meriter) owns student apartments in Madison that are managed by Oakbrook Corporation (Oakbrook). On August 12, 1998, during the busy student turnover period, Oakbrook's property manager walked through a vacated apartment to inspect the premises. In his deposition he testified that "cabinets" were on his checklist, but he did not remember checking them.

¶ .3. On August 13, 1998, a páinting crew entered the apartment. One of the painters discovered what he believed to be a "candle" in the kitchen cabinet. Another painter recognized it as a firework device. They moved the item out of the way and continued working. No one in the crew informed Oakbrook or Meriter about the firework.

¶ 4. On August 14, 1998, Dora Alvarado and Ron Boehm, the owner of the janitorial service retained by Oakbrook, entered the apartment to clean it. Alvarado had already completed a ten- to eleven-hour shift that day, but had been called back to work. Boehm noticed what he thought to be a candle on the windowsill. He commented to Alvarado that it was a "strange looking candle." It was described as a wax candle with red, white, and blue colors, about six inches tall, and an inch in diameter. ~

¶ 5. After Boehm left the apartment, Alvarado began cleaning the interior of the gas stove. She opened the stovetop to expose the burner trays for vacuuming. Alvarado knew it was necessary to preserve the flame of the pilot light, which occasionally extinguished during the cleaning process. Because she had forgotten to bring matches, she decided to use the "candle" to preserve the flame, and lit the device with the pilot flame. The firework exploded as she was setting it down, blowing off most of her right hand.

¶ 6. Alvarado and her children filed a complaint in Dane County circuit court against Meriter, Oakbrook, the painting contractor, and each of their insurers. The plaintiffs sought damages as a result of Alvarado's personal injuries.

¶ 7. The circuit court granted Oakbrook and Meriter's motion for summary judgment. It concluded that Oakbrook and Meriter did not have a duty of care to protect Alvarado from a potential harm they neither knew nor reasonably could have foreseen.

¶ 8. The court of appeals affirmed the circuit court's grant of summary judgment for Oakbrook and Meriter, but employed a different rationale. Rather than focusing on negligence, the court of appeals considered public policy factors that limit a defendant's liability. It concluded that the injury was too remote from the negligence, and in retrospect it appeared too highly extraordinary that the negligence should have resulted in the harm. Under this analysis, the court of appeals determined that public policy barred any imposition of liability, and therefore it affirmed the circuit court's grant of summary judgment.

II

¶ 9. Alvarado seeks a reversal of the court of appeals' decision, and a remand for a jury trial. She argues that it was improper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented to a jury for a determination of negligence. She asserts that the grant of summary judgment was error because there remain genuine issues of material fact.

¶ 10. Summary judgments are reviewed applying the same methodology a circuit court uses under Wis. Stat. § 802.08(2). Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no genuine issues of material fact then the moving party is entitled to a summary judgment as a matter of law. Id.; Wis. Stat. § 802.08(2) (2001-02).

¶ 11. Whether it was proper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented in a negligence determination is a question of law subject to independent appellate review. Gritzner v. Michael R., 2000 WI 68, ¶ 27, 235 Wis. 2d 781, 611 N.W.2d 906.

¶ 12. In addressing the court of appeals' reliance on public policy to affirm the circuit court's grant of summary judgment, we first briefly summarize the laws of negligence and liability that are relevant to this case. We then apply the law and conclude that the court of appeals erred when it affirmed the grant of summary judgment, limiting liability based on public policy factors prior to trial.

III

¶ 13. Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad. Rockweit v. Senecal, 197 Wis. 2d 409, 419-20, 541 N.W.2d 742 (1995). In that dissent, Judge Andrews explained that "[e]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting).

¶ 14. Every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Gritzner, 235 Wis. 2d 781, ¶¶ 20 & 22. In Wisconsin a duty to use ordinary care is established whenever it is foreseeable that a person's act or failure to act might cause harm to some other person. Id., ¶ 20. Under the general framework governing the duty of care, a " 'person is not using ordinary care and is negligent, if the person, without intending to do harm does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.'" Id., ¶ 22 (quoting Wis JI — Civil 1005).

¶ 15. The question of duty is nothing more than an "ingredient in the determination of negligence." A.E. Investment Corp. v. Link Builders, 62 Wis. 2d 479, 484, 214 N.W.2d 764 (1974). Once it has been determined that a negligent act caused the harm, "the question of duty is irrelevant and a finding of nonliability can be made only in terms of public policy." Id. at 485.

¶ 16. The "duty" ingredient of negligence should not be confused with public policy limitations on liability. "[T]he doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability." Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 644, 517 N.W.2d 432 (1994). "In Wisconsin, one always owes a duty of care to the world at large, which is why '[t]he consistent analyses of this court reveal that the question of duty is not an element of the court's policy determination." Rockweit, 197 Wis. 2d at 433 (Abrahamson, J. concurring) (quoting A.E. Investment, 62 Wis. 2d at 484).

¶ 17. Thus, negligence and liability are distinct concepts. A.E. Investment, 62 Wis. 2d at 484-85. After negligence has been found, a court may nevertheless limit liability for public policy reasons. Gritzner, 235 Wis. 2d 781, ¶ 24; Rockweit, 197 Wis. 2d at 421; A.E. Investment, 62 Wis. 2d at 484. The public policy considerations that may preclude liability are:

(1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; [or] (6) allowing recovery would enter a field that has no sensible or just stopping point.

Gritzner, 235 Wis. 2d 781, ¶ 27.

¶ 18. In most cases, the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability. Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. Gritzner, 235 Wis. 2d 781, ¶ 26; Sawyer v. Midelfort, 227 Wis. 2d 124, 141, 595 N.W.2d 423 (1999); Bowen, 183 Wis. 2d at 655; Schuster v. Altenberg, 144 Wis. 2d 223, 241, 424 N.W.2d 159 (1988); Coffey v. City of Milwaukee, 74 Wis. 2d 526, 542, 247 N.W.2d 132 (1976).

¶ 19. A jury's determination of negligence includes an examination of whether the defendant's exercise of care foreseeably created an unreasonable risk of harm to others. Rockweit, 197 Wis. 2d at 423. Public policy factors can also implicate the concept of foreseeability. In a sense, evidence regarding foreseeability can play a dual role. Besides having the aid of the jury's opinion when assessing liability, a judge will also be aided by the facts that were brought to light during the jury trial. Having examined the law, we next apply those principles to the facts in this case.

IV

¶ 20. The court of appeals erred in affirming the summary judgment on public policy grounds. This case requires a full factual resolution before application of a public policy analysis. It is not one of those simple cases where public policy can be used to limit liability before finding negligence. Here, there remain genuine issues of material fact, and public policy factors limiting liability should be considered only after a full resolution of the facts at trial.

¶ 21. It is desirable to have a full trial to precede the court's determination because the issues in this case are complex and the factual connections attenuated. Bowen, 183 Wis. 2d at 655. A jury will hear testimony about the standard of care that a reasonable property manager would exercise in inspecting a vacated apartment. Oakbrook and Meriter claim that there was no negligence on their part. Alvarado, however, claims that if Oakbrook had performed a thorough inspection of the apartment, as it should have, then the firework would have been found. In his deposition, Alvarado's expert opines that industry practice is to conduct an adequate inspection before allowing employees and contractors onto the premises. He asserts that ordinary care requires a property manager to have a safety program which anticipates and addresses potential hazards:

Well, they have a big responsibility in their capacity of managing residential housing... . There's all kinds of things to be considered by a company that — that's in charge of managing property.... I could talk about that for hours, but the main idea is that you have to anticipate potential hazards and deal with them in some way. And having a hazardous material or hazardous item in an apartment is something that they're required to anticipate and have a plan and a program to deal with.

¶ 22. This case is similar to Coffey, in which this court concluded that a full trial should precede a determination that policy considerations preclude liability based on a negligent inspection. Coffey, 74 Wis. 2d at 543. In that case, a tenant suffered losses as the result of a fire at its leased premises. The tenant sued a building inspector and the City of Milwaukee claiming that they were negligent because the standpipes necessary to furnish the water to fight fire at the leased premises were defective and had not been properly inspected.

¶ 23. In examining whether public policy considerations should preclude liability, the Coffey court determined that a full factual resolution was necessary for a fair and complete evaluation of the policy considerations. Id. The court explained that the case involved the complex issue of municipal tort liability arising out of the alleged negligence of a building inspector in carrying out fire inspections. Id.

¶ 24. The court concluded that findings as to actual negligence, damage, and the causal relationship between them would be material and helpful in evaluating the public policy considerations. Id. Accordingly, it refused to preclude liability on public policy grounds prior to a full factual resolution.

¶ 25. Analogous to Coffey, this case involves facts that are not simple to ascertain. It addresses the tort liability of property managers arising out of the alleged negligence of an inspector in carrying out apartment inspections. Like Coffey, a sufficient factual basis is not presented here for considering, evaluating, and resolving the public policy issues involved. Findings as to actual negligence, damages and the causal relationship between them would be material and helpful in evaluating the public policy considerations.

¶ 26. The parties dispute the purpose of Oakbrook's inspection. Alvarado claims part of the inspection's purpose was safety, while Oakbrook contends the inspection was only to note needed repairs, cleaning, and security-deposit withholdings. A jury would hear testimony about what constitutes a proper inspection, and whether Oakbrook's inspection satisfied that obligation. Ultimately, a jury would have determined whether Oakbrook had instituted adequate safety measures, and whether Oakbrook was negligent for failing to instruct contractors about what procedure to follow when a dangerous object is found.

¶ 27. When the circuit court granted summary judgment in favor of Oakbrook and Meriter, it concluded that Oakbrook and Meriter did not owe Alvarado a duty to exercise ordinary care. However, everyone owes a duty of ordinary care to all persons. The effect of the circuit court's summary judgment was to limit the imposition of liability. Bowen, 183 Wis. 2d at 645; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183, 77 N.W.2d 397 (1956) ("whenever a court holds that a certain act does not constitute negligence because there was no duty owed by the actor to the injured party, although the act complained of caused the injury, such court is making a policy determination").

¶ 28. Likewise, albeit with a different rationale, the court of appeals limited liability by applying public policy factors. Neither the court of appeals nor the circuit court had the benefit of a full presentation of facts or a jury's verdict on negligence before limiting liability. Because there remain genuine issues of material fact, summary judgment was erroneously granted.

¶ 29. Summary judgment is uncommon in negligence actions, "because the court 'must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that [the defendants] failed to exercise ordinary care.'" Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ 2, 241 Wis. 2d 804, 623 N.W.2d 751 (citations omitted). The concept of negligence is peculiarly elusive, and requires the trier of fact to pass upon the reasonableness of the conduct in light of all the circumstances, " 'even where historical facts are concededly undisputed.'" Id. Ordinarily, this is not a decision for the court.

¶ 30. In sum, we determine that there remain genuine issues of material. fact. Here, public policy factors limiting liability should be considered only after a full resolution of the facts at trial. The court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

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

¶ 31. JON E WILCOX, J., did not participate.

DIANE S. SYKES, J.

¶ 32. (dissenting). I respectfully dissent. The majority concludes that "the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors." Majority op., ¶¶ 1, 30. I disagree. The court of appeals properly evaluated the public policy limitations on liability in this case, and properly did so in advance of trial, affirming the circuit court's order of summary judgment.

¶ 33. As the majority notes, negligence law in Wisconsin is based on the dissent in Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101-05 (N.Y. 1928) (Andrews, J., dissenting), in which Judge Andrews of the New York Court of Appeals described negligence as a breach of the duty shared by all members of society to "refrain[ ] from those acts that may unreasonably threaten the safety of others." Majority op., ¶ 13; see also A.E. Investment Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 483-84, 214 N.W.2d 764 (1974) (describing Wisconsin's adoption of the Palsgraf dissent). This is the duty of ordinary care, and it is measured by reference to a "reasonable person" standard, which is applied to evaluate the nature and foreseeability of the risk of harm associated with the conduct in question in order to determine whether a defendant was negligent. Majority op., ¶¶ 14, 19; see also Wis JI—Civil 1005.

¶ 34. The duty of ordinary care can be breached (that is, a person can be negligent) by either an act or an omission, if a reasonable person under similar circumstances would recognize that the act or omission creates an unreasonable risk of injury or damage to another. The determination of negligence is followed by a determination of causation and damages. Although these are generally factual questions for the jury, there are some circumstances, not implicated here, under which the determination of negligence involves a mixed question of fact and law. Rockweit v. Senecal, 197 Wis. 2d 409, 418-19, 541 N.W.2d 742 (1995).

¶ 35. However, it is not always true that negligence + causation + damages = liability. Considerations of public policy may preclude the imposition of liability even where the facts establish that a negligent act or omission on the part of the defendant was a cause of the plaintiffs damages. This is purely a question of law for the court. Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 42, 251 Wis. 2d 171, 197, 641 N.W.2d 158 ("The application of public policy considerations is a function of the court."); Rockweit, 197 Wis. 2d at 425 ("A finding of nonliability made in terms of public policy is a question of law which the court alone decides.").

¶ 36. Accordingly, we observed last term that "in Wisconsin, common law limitations on liability are determined not by reference to the absence of a duty, but as a matter of public policy." Stehlik v. Rhoads, 2002 WI 73, ¶ 52, 253 Wis. 2d 477, 645 N.W.2d 889. This is because "[a]ll members of society are 'held, at the very least, to a standard of ordinary care in all activities.'" Id. (quoting Gritzner v. Michael R., 2000 WI 68, ¶ 22, 235 Wis. 2d 781, 611 N.W.2d 906). The public policy limitations on liability are as follows:

When determining whether or not to limit a defendant's tort liability on public policy grounds, this court has identified a number of factors that must be considered. Recovery against a negligent tortfeasor can be denied on the grounds of public policy when (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it- appears too highly extraordinary that the negligence should have brought about the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way to fraudulent claims; or (6) allowing recovery would have no sensible or just stopping point.

Stephenson, 251 Wis. 2d 171, ¶ 43 (citing Rockweit, 197 Wis. 2d at 426).

¶ 37. This distinction between the determination of negligence and the imposition of liability is consistent with the Palsgraf dissent: "As was said by Mr. Justice Holmes many years ago, '[t]he measure of the defendant's duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.'" Palsgraf, 162 N.E. at 102 (quoting Spade v. Lynn & Boston R.R. Co., 52 N.E. 747, 748 (Mass. 1899)).

¶ 38. The majority recites the public policy limitations on liability but refuses to apply them, concluding that "[t]his case requires a full factual resolution before application of a public policy analysis." Majority op., ¶¶ 17, 20. In this regard, the majority asserts that "Ci]t is desirable to have a full trial to precede the court's determination [of public policy] because the issues in this case are complex and the factual connections attenuated." Majority op., ¶ 21. I disagree.

¶ 39. I recognize that we have said it is usually "better practice" or "generally better procedure" to await resolution of the factual issues in a negligence case before submitting it to public policy analysis. Gritzner, 235 Wis. 2d 781, ¶ 26 (lead opinion); id., ¶ 83 (Abrahamson, C.J., concurring) (majority opinion on this issue); Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 265, 580 N.W.2d 233 (1998). However, we have also said that "[t]he assessment of public policy does not necessarily require a full factual resolution of the cause of action by trial." Stephenson, 251 Wis. 2d 171, ¶ 42; see also Miller, 219 Wis. 2d at 265; Hass v. Chicago and, N. W. Ry. Co., 48 Wis. 2d 321, 326-27, 179 N.W.2d 885 (1970). More specifically:

The application of public policy considerations is solely a function of the court. . . and does not in all cases require a full factual resolution of the cause of action by trial before policy factors will be applied by the court. There may well be cases, of course, where the issues are so complex, or factual connections so attenuated, that a full trial must precede the court's determination. Here, however, the question of public policy is fully presented by the complaint and demurrer.

Hass, 48 Wis. 2d at 326-27. As a further example, in our seminal case on the tort of negligent infliction of emotional distress, we held:

The application of public policy considerations is a function solely of the court. While it is generally better procedure to submit negligence and cause-in-fact issues to the jury before addressing legal cause, that is, public policy issues,... the circuit court or this court may grant summary judgment on public policy grounds before a trial or a court may bar liability on public policy considerations after trial. When the pleadings present a question of public policy, the court may make its determination on public policy grounds before trial. In contrast, when the issues are complex or the factual connections attenuated, it may be desirable for a full trial to precede the court's determination.
In this case this court is determining public policy considerations before trial because the facts presented are simple, and because the question of public policy is fully presented by the complaint and the motion to dismiss.

Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 654-55, 517 N.W.2d 432 (1994) (footnotes and citations omitted).

¶ 40. Thus, it is not uncommon for courts to decide on summary judgment that negligence liability should be limited based upon considerations of public policy. Some cases are factually uncomplicated and fully conducive to a pre-trial legal determination on the applicability of public policy limitations on liability. This is such a case.

¶ 41. The majority's rejection of pre-trial public policy analysis in this case is unwarranted. To the extent that it discourages the lower courts from evaluating public policy liability limitations on motions for summary judgment, it will produce two divergent effects: 1) there will be an increase in unnecessary trials and appeals (where the circuit or appellate courts would otherwise have precluded liability pre-trial but now consider themselves constrained to do it only post-trial because of the majority's decision here); and 2) there will be an expansion of liability (where the circuit or appellate courts consider themselves constrained against precluding liability on public policy grounds because of the presence of a jury verdict on negligence).

¶ 42. While I have no quarrel with the "better practice" general rule noted above, I do not agree that the facts of this case are so complex that the evaluation of public policy limitations on liability must await a jury verdict on negligence, cause-in-fact and damages. Judicial gate-keeping on this potentially dispositive legal issue is extremely important given the breadth and potential reach of the definition of negligence in this state. This was an important part of the Palsgraf dissent. 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."

¶ 43. Judge Andrews said that the duty of ordinary care is owed to all who might be injured as a consequence of an unreasonably risky (i.e., negligent) act or omission, but he also said "there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former." Palsgraf, 162 N.E. at 103. The negligence, he said, might be "[a] cause, but not the proximate cause. What we [ ] 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." Id. This judicial line-drawing relies upon "common sense" and "fair judgment," and "endeavor[s] to make a rule in each case that will be practical and in keeping with the general understanding of mankind." Id. at 104.

¶ 44. Public policy limitations on liability are decided by the court as a matter of law, but the majority nevertheless considers the "jury's opinion" to be an "aid" to the court in making that decision. Majority op., ¶ 19. In this regard, the majority seems to be suggesting that the jury should influence the court's assessment of whether public policy requires non-liability as a matter of law. Courts decide questions of law independently, without deference to the jury. As a practical matter, however, most judges find it difficult to throw out a jury verdict.

¶ 45. This case is amenable to a pre-trial application of the six-factor public policy analysis. The case is not complex, and the historical facts are undisputed. We do not need a jury verdict on negligence, causation, and damages in order to determine whether public policy requires nonliability as a matter of law. I agree with the court of appeals that the first public policy factor (remoteness) and the third (extraordinary result) preclude liability here, even if a jury were to find causal negligence on the part of the apartment owner and manager. I would also conclude that the second factor (disproportionality of culpability to injury) is implicated in this case.

¶ 46. Dora Alvarado's injury was unquestionably tragic and devastating. But the accident that caused it occurred because she mistook a firework for a candle, and lit that firework in the pilot light of an oven that she was cleaning, in an attempt to preserve the pilot light flame in case it went out while she was vacuuming the oven's interior. As a matter of law, such an injury is too remote from the alleged negligent inspection by the apartment owner and manager, as well as too extraordinary and too disproportionate to that alleged negligence. I would affirm the court of appeals.

¶ 47. I am authorized to state that Justice DAVID T. PROSSER, JR. joins this dissent.

       Alvarado v. Sersch, 2002 WI App 227, 257 Wis. 2d 752, 652 N.W.2d 109 (affirming a judgment of the circuit court for Dane County, Angela B. Bartell, Judge).

       In Gritzner this court aptly noted the confusion as follows:
      As the defendant notes, some Wisconsin cases have examined liability limitations in terms of duty. See Estate of Becker v. Olson, 218 Wis. 2d 12, 579 N.W.2d 810 (Ct. App. 1998); Zelco v. Integrity Mut. Ins. Co., 190 Wis. 2d 74, 527 N.W.2d 357 (Ct. App. 1994); Erickson v. Prudential Property and Cas. Ins. Co., 166 Wis. 2d 82, 479 N.W.2d 552 (Ct. App. 1991). This formulation of the analysis is incorrect under Wisconsin law. In Wisconsin, everyone has a duty to act with reasonable care. Liability for breach of that duty is limited on public policy grounds. See Rockweit v. Senecal, 197 Wis. 2d 409, 425, 541 N.W.2d 742 (1995) (explaining that although some cases have denied liability on the basis that an actor had no "duty" to the injured party, the decision to deny liability is essentially one of public policy and not duty or causation). See also Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 644-45, 517 N.W.2d 432 (1994)(explaining that in deciding whether to impose liability for negligence, Wisconsin courts use a public policy formulation rather than a foreseeability or duty formulation) (citing Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183, 77 N.W.2d 397 (1956)); Schuster v. Altenberg, 144 Wis. 2d 223, 266, 424 N.W.2d 159 (1988) (Steinmetz, J., concurring)(noting that Wisconsin has a distinct approach to negligence under which liability is limited through policy considerations after the elements of duty and causation have been established);Klassa, 273 Wis. at 183 ("Whenever a court holds that a certain act does not constitute negligence because there was no duty owed by the actor to the injured party, although the act complained of caused the injury, such court is making a policy determination.").

        Gritzner v. Michael R., 2000 WI 68, ¶ 24 n.4, 235 Wis. 2d 781, 611 N.W.2d 906.

       Deposition testimony of Frank Burg, EE., September 29, 2000, p. 34.

       Wisconsin juries are instructed on negligence as follows:
      A person is negligent when [he or she] fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.
      Wis JI — Civil 1005.

       Causation is determined by reference to a "substantial factor" test. The jury determines whether the defendant's negligence was "a cause" — not "the cause" — of injury or damage to the plaintiff, because there can be more than one cause of a plaintiffs injury or damage. Wis JI — Civil 1500 (emphasis in original). A defendant's negligence is "a cause" of a plaintiffs injury or damage if it was a substantial factor in producing the injury or damage. Id.


text:
    In the Matter of Disciplinary Proceedings Against Darin S. Harmon, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Darin S. Harmon, Respondent.
    Supreme Court

      No. 03-1149-D.

      Decided June 16, 2003.

    2003 WI 58
    (Also reported in 663 N.W.2d 268.)
   The Court entered the following order on this date:

On May 6, 2003, the Office of Lawyer Regulation (OLR) and Attorney Darin S. Harmon filed a Stipulation asking this court to impose reciprocal discipline identical to that imposed on Attorney Harmon by the Iowa Supreme Court. That court publicly reprimanded Attorney Harmon for misconduct stemming from his representation of a party to a dissolution proceeding. Attorney Harmon was reprimanded for violating DR 5-105(B) of the Iowa Code of Professional Responsibility by engaging in an impermissible "issue" conflict and for communicating with a party known to be represented by counsel, in violation of DR 7-104(A)(l).

SCR 22.22(3) provides that this court shall impose the identical discipline unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court should not accept as final the misconduct finding; or the misconductjustifi.es substantially different discipline here. Neither OLR nor Attorney Harmon contend, nor does this court find, that any of these three exceptions exist.

Accordingly,

IT IS ORDERED that the Stipulation is accepted and Attorney Darin S. Harmon is hereby publicly reprimanded for professional misconduct pursuant to SCR 22.22.


author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. JON E WILCOX, J.

text:
    State of Wisconsin ex rel. The Cincinnati Insurance Company, Petitioner, v. Circuit Court for Milwaukee County, the Honorable Dominic Amato, presiding, The Honorable Michael J. Skwierawski, Chief Judge, First Judicial Circuit, Hidden Oaks Homeowners Assoc., Gerald Nagel, Cindy Nagel, Hollie Jambretz, Ann Philips, Ray Maciejewski, Tina Stewart, Ronald Will, Bernie Will, Patricia Reilly, Carol Molling, Tari Garnaas, Richard Tabbert, Laverne Tabbert, Darlene Jaskowiak, Lorraine Tollefsrud, Esther Pliszka, Max Boschke, Angelina Boschke, Frank Rondinelli, Mary Rondinelli, Mary Ann Wehner, Ron Scott, Carol Scott, Betty Schleck, Carol Rouillier, Norb Putz, Gary Loehrer, Patricia Loehrer, Ceil Mueller, James Schulte, Sheila Schulte, Jacob Stasek, Kathleen Stasek, Audrey Schmidt, Ray Reiman, Geri Reiman, Lou Birchbauer, Marilyn Birchbauer, Gloria Bruss, Edward Grzegorski, Judy Grzegorski, Milt Baggenstoss, Judy Baggenstoss, Anthony Napoli, Margaret Napoli, Albert Yaccarino, Barbara Yaccarino, Old Tuckaway Assoc. Limited Partnership, Affiliated Capital Corporation, Capital Associates, Ltd., Fred Loeb and Continental Casualty Company, Respondents.
    Supreme Court

      No. 02-2756-W.

      Oral argument April 9, 2003.

    Decided June 18, 2003.

    2003 WI 57
    (Also reported in 663 N.W.2d 275.)

      For the petitioner there was a brief by Mark W. Rattan, Lynne M. Mueller, and Litchfield Cavo, Shore-wood, and oral argument by Lynne M. Mueller.

    For the respondent, Circuit Court for Milwaukee County, the cause was argued by David C. Rice, assistant attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. The Cincinnati Insurance Company has petitioned this court for a supervisory writ directing the chief judge for the first judicial administrative district (Milwaukee County), the Honorable Michael J. Skwier-awski, to honor Cincinnati Insurance's request for a substitution of judge pursuant to Wis. Stat. § 801.58 (2001-2002).

¶ 2. The question of law presented is whether Cincinnati Insurance is "united in interest" with another insurance company, Continental Casualty Company, for purposes of Wis. Stat. § 801.58(3) so that they are entitled to only one substitution request between them. We hold that because the two insurance companies' policies were in effect on different dates and provide different types of coverages, these two insur-anee companies have directly adverse interests in the present case, and that Cincinnati Insurance and Continental Casualty are not united in interest for purposes of § 801.58(3). We therefore grant Cincinnati Insurance's petition for a supervisory writ directing the chief judge for the first judicial administrative district to honor Cincinnati Insurance's substitution request.

¶ 3. The facts underlying the substitution request are undisputed. Hidden Oaks Homeowners' Association and 47 individual owners of condominiums in the Hidden Oaks Condominium development brought suit against four defendants who are the developers and sellers of Hidden Oaks. The complaint alleges over thirty causes of action including misrepresentation and construction defects. The complaint does not allege the dates on which injuries occurred or damages arose.

¶ 4. The defendants in the Hidden Oaks case brought a third-party complaint against Continental Casualty Company and Cincinnati Insurance Company. The defendants in the Hidden Oaks case are named insureds on a series of insurance policies issued by Continental Casualty beginning December 31, 1996, and lasting through December 31, 1999. The defendants are also named insureds on a series of insurance policies issued by Cincinnati Insurance beginning December 31, 1999, and lasting through December 31, 2003.

¶ 5. The Hidden Oaks lawsuit was originally assigned to Judge Thomas Cooper of the Milwaukee County Circuit Court. On May 23, 2002, Continental Casualty filed a request for substitution pursuant to Wis. Stat. § 801.58. The request was granted and the case was reassigned to Judge Dominic S. Amato of the Milwaukee County Circuit Court.

¶ 6. Cincinnati Insurance then filed its own request for substitution under § 801.58 on June 5, 2002. Judge Amato denied Cincinnati Insurance's request on the ground that Cincinnati Insurance was united in interest with Continental Casualty within the meaning of § 801.58(3) and thus was barred from filing a substitution request in the present case.

¶ 7. Pursuant to Wis. Stat. § 801.58(2), Cincinnati Insurance requested that Judge Skwierawski, chief judge of the first judicial administrative district, review Judge Amato's decision to deny Cincinnati Insurance's substitution request. The chief judge affirmed the decision, agreeing with Judge Amato that the two insurance companies were united in interest because they are "clearly pleading along parallel, if not united, lines on a number of issues."

¶ 8. Cincinnati Insurance then petitioned the court of appeals for a supervisory writ ordering the chief judge to honor its request for substitution. The court of appeals denied Cincinnati Insurance's petition for a supervisory writ, holding that Cincinnati Insurance had failed to carry its burden of showing that it was not united in interest with Continental Casualty.

¶ 9. Cincinnati Insurance now comes before this court seeking a supervisory writ directing that its request for a substitution of judge be granted. The issue presented is one of statutory interpretation, requiring that we interpret "united in interest" in Wis. Stat. §§ 801.58(3) and determine whether the two insurance companies are "united in interest" under the substitution statute in the present case.

¶ 10. Wisconsin Stat. § 801.58 establishes the procedure for substitution of a judge in a civil case. Section 801.58(1) states that a party to a civil action may file a written request for substitution of the judge assigned to the case and sets out time constraints for filing the request. If the request is timely filed within the limits set forth in § 801.58(1), and is in the proper form, § 801.58(2) directs that "the clerk shall request the assignment of another judge." Under § 801.58(3) a party is allowed only one substitution request in any action and "parties united in interest and pleading together shall be considered as a single party." Section 801.58(3) reads, in pertinent part:

[N]o party may file more than one such written request in any one action, nor may any single such request name more than one judge. For purposes of this subsection parties united in interest and pleading together shall be considered as a single party, but the consent of all such parties is not needed for the filing by one of such party of a written request.

¶ 11. No dispute exists in the present case that Cincinnati Insurance's substitution request was filed within the time limit and in the proper form. The sole issue, therefore, is whether Cincinnati Insurance and Continental Casualty are "united in interest and pleading together" such that they constitute a single party under Wis. Stat. § 801.58(3) and are thus entitled to one motion for substitution between them. Although Wis. Stat. § 801.58(3) considers multiple parties that are "united in interest and pleading together" to be a single party, the court order accepting Cincinnati Insurance's petition for a supervisory writ limited arguments to the meaning of the term "united in interest."

¶ 12. Interpretation of the phrase "united in interest" in Wis. Stat. § 801.58(3) presents a question of law that this court reviews independently of the circuit court and court of appeals but with the benefit of their analyses. The burden is on Cincinnati Insurance, as the party seeking substitution, to demonstrate that it is not united in interest with Continental Casualty.

¶ 13. This court discussed the meaning of the phrase "united in interest" under Wis. Stat. § 801.58(3) in State ex rel. Carkel, Inc. v. Circuit Court for Lincoln County, 141 Wis. 2d 257, 414 N.W.2d 640 (1987). The Carkel court wrote that there is no single definition of the phrase "united in interest" and did not define the scope of the phrase. The Carkel court held, however, that the director, president, and sole shareholder of a corporation and the corporation itself, on the facts of the case, had identical interests and were united in interest for purposes of § 801.58(3) despite the fact that the director was a plaintiff to the underlying litigation and the corporation was named as a defendant. We concluded in Carkel that "the substance of the parties' interests" and not the form of the pleadings governs the applicability of § 801.58.

¶ 14. The conclusion in Carkel that the director and his corporation had identical interests and were united in interest under Wis. Stat. § 801.58(3) rested on the alignment of a series of facts. First, the director and the corporation, as a unit, shared the benefit of the contract forming the basis for the underlying litigation. Second, the amended complaint adding the corporation as a defendant made no claim and sought no relief from the corporation. Third, the same attorney represented both the director and the corporation in the litigation. From these facts, we concluded, the parties had identical interests.

¶ 15. In contrast, the facts in the case at hand demonstrate that Cincinnati Insurance and Continental Casualty's interests are far from united. First and foremost, the two insurance companies' policies were in effect at different times. Since none of the 48 plaintiffs in this case have specified in their complaint when any injuries or damages occurred, a determination will have to be made regarding when each respective claim arose for each of the different plaintiffs. As Cincinnati Insurance argues, the two insurance companies are diametrically opposed to each other because their policy periods do not overlap and each wants the court to determine that damages were incurred during the other insurance company's respective policy period.

¶ 16. Second, Cincinnati Insurance and Continental Casualty issued different types of policies to the defendants during their respective periods of coverage. Continental Casualty issued policies providing inland marine and first party property coverage. Cincinnati Insurance, during its period of coverage, issued policies providing general liability coverage as well as umbrella policies. The result of these differing types of coverage is that Cincinnati Insurance and Continental Casualty have pled separate defenses unique to the policies each issued.

¶ 17. Cincinnati Insurance and Continental Casualty do share some interests in the case at hand. For example, both insurance companies would benefit from a finding that the defendants are not liable for the injuries alleged and both insurance companies would benefit from findings that, where liability is found, the amount of damage caused was minimal. Thus, it is not surprising, as Chief Judge Skwierawski noted, that Cincinnati Insurance and Continental Casualty have asserted some common defenses, including failure to state a claim upon which relief can be granted, failure to mitigate damages, and statute of limitations.

¶ 18. These common interests, however, do not amount to "united in interest" for purposes of Wis. Stat. § 801.58. Cincinnati Insurance and Continental Casualty are not even similarly interested in and will not be similarly affected by the court's determination of when damages occurred. In fact, the court's determination of dates will oppositely affect the two parties, eliminating the possibility of coverage by one insurance company and raising the possibility of coverage by the other. Thus, we conclude that the interests of the two companies are directly adverse to each other, and unlike in Carkel, an attorney would probably be unable, without adhering to the requirements of SCR 20:1.7, to represent both insurance companies in the present litigation.

¶ 19. On the basis of these facts, that is, that the two insurance companies' policies were in effect on different dates and provided different types of coverages, we conclude that Cincinnati Insurance and Continental Casualty have directly adverse interests in the present case and that the two insurance companies are therefore not united in interest in the present case.

¶ 20. For the reasons stated above, we grant Cincinnati Insurance's petition for a supervisory writ and order the chief judge for the first judicial district to grant Cincinnati Insurance's request for a substitution of judge.

By the Court. — The petition for supervisory writ is granted and the cause remanded to the circuit court for further proceedings consistent with this opinion.

JON E WILCOX, J.

¶ 21. (concurring). I agree with the court's analysis and holding in the present case. I write separately to emphasize that this court's decision should not be viewed as expanding substitution.

¶ 22. Wisconsin Stat. § 801.58 (2001-2002), which governs substitution of judges, makes clear that substitution is to he granted under limited circumstances. Section 801.58(1) includes time limits for requests and further, as noted by this court, "[t]he purpose behind sec. 801.58(3) is to limit substitution requests to 'one per side.'" State ex rel. Carkel, Inc. v. Circuit Court for Lincoln County, 141 Wis. 2d 257, 265, 414 N.W.2d 640 (1987). Under §801.58(3), "parties united in interest and pleading together shall be considered as a single party."

¶ 23. This court's decision interprets "united in interest" under the circumstances presented and appropriately holds that because Continental Insurance Company and Cincinnati Insurance Company provided different types of policies during different periods of time, the companies were each entitled to request substitution. It is the particular circumstances presented that make substitution appropriate. As discussed by the court, in contrast to the facts presented in Carkel, we find in the present case that the companies have directly adverse interests based on the different types of coverage and periods of coverage provided by each carrier. Majority op., ¶ 18. In ¶¶ 16-17, the court notes that the parties have some common interests, but finds that these interests are insufficient because the parties would be oppositely affected by the court's determination of when the damages occurred.

¶ 24. Courts should be wary of cases in which the different interests alleged may be merely facial. It is rare for parties to share exactly the same interests in an action. Based on the language of this case, parties may attempt to emphasize their differences in order to get additional substitutions. Today's decision should be read to mean that courts facing multiple substitution requests in the same case should carefully examine the facts and circumstances to determine whether parties are, in fact, united in interest, or have directly adverse interests that require allowance for multiple substitutions. The rule has been, and remains, "one per side."

       All subsequent references to the Wisconsin Statutes are to the 2001-2002 version unless otherwise indicated.

       The four defendants are Old Tuckaway Associates, Ltd.; Affiliated Capital Corporation; Capital Associates, Ltd.; and Fred Loeb.

       Wisconsin Stat. § 801.58(2) provides, in relevant part: "If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district... ."

       The court of appeals concluded that "Cincinnati has not carried its burden.... Cincinnati's bald assertions that • its policies were in effect at dates different from those of Continental Casualty's and that its policies differed from Continental Casualty's is not sufficient to demonstrate that the circuit court was required to grant the substitution request." State of Wisconsin ex rel. The Cincinnati Ins. Co. v. Circuit Court for Milwaukee County, No. 02-1902-W, unpublished slip op. at 4 (Wis. Ct. App. Sept. 18, 2002).
      In oral argument before this court, counsel for Cincinnati Insurance surmised that the court of appeals concluded that Cincinnati Insurance failed to meet its burden because it failed to include in its petition to the court of appeals all of the pleadings necessary to clarify the differences in coverage between the two insurance companies. Cincinnati Insurance's brief here does include this information.

       Article VII, Section 3(1), of the Wisconsin Constitution states that "[t]he supreme court shall have superintending and administrative authority over all courts."
      Depending on the circumstances, a party seeking review in this court of a court of appeals' decision on a petition for a supervisory writ regarding substitution may file either a petition for review or a petition for supervisory writ. See Wis. Stat. § 809.71; Judicial Council Committee's Note, 1981, § 809.71, Stats.
      In considering the petition and response, this court determined that Cincinnati Insurance made a sufficient showing to justify treating this petition as a petition for supervisory writ rather than as a petition for review and that the court should order oral argument on the merits of the petition for supervisory writ. See, e.g., State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679 (reviewing a court of appeals decision on substitution brought to this court on a petition for review).

       The Wisconsin statutes permitting substitution without proof of, or a determination of, a judge's prejudice date back to 1853. For a discussion of the history of statutes governing substitution, see Findorff, 233 Wis. 2d 428, ¶ 24; State v. Holmes, 106 Wis. 2d 31, 315 N.W.2d 703 (1982).

       Wisconsin Stat. § 801.58(1) provides, in relevant part:
      (1) Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters and, if by the plaintiff, not later than 60 days after the summons and complaint are filed or, if by any other party, not later than 60 days after service of a summons and complaint upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action.

       Wisconsin Stat. § 801.58(2) provides, in relevant part:
      (2) When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03.

       Wis. Stat. § 801.58(3).

        State ex rel. Carkel, Inc. v. Circuit Court for Lincoln County, 141 Wis. 2d 257, 266, 414 N.W.2d 640 (1987).

        Id. at 267.

       Id. at 267-68.

        Id. at 269.

       For example, Cincinnati Insurance alleges that it has no obligation to defend or indemnify the defendants because the complaint does not seek damages because of "bodily injury" or "property damage" within the meaning of its policies; Continental Casualty alleges that there is no coverage under any of its policies to the extent that the defendants failed to comply with their notice requirements.

       The chief judge found that Cincinnati Insurance had adopted and incorporated several affirmative defenses raised by Continental Casualty. Cincinnati Insurance's counsel stated at oral argument that this finding was erroneous, and that, in fact, Cincinnati Insurance had adopted the affirmative defenses of the defendants in the underlying case, not those asserted by Continental Casualty. The record supports counsel's statement and counsel for the circuit court conceded as much at oral argument. See Third-party Defendant Cincinnati Insurance Company's Answer and Affirmative Defenses at 5.

       The Carkel decision took guidance from Black's Law Dictionary, which defined parties as united in interest "when they are similarly interested in and will be similarly affected by the determination of the issues involved in the action." Carkel, 141 Wis. 2d at 267.

        Cf. Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 722, 495 N.W.2d 660 (1993) (holding that the interests of two insurance companies were "adverse" under Wis. Stat. § 102.23(1)(a) (1989-1990) relating to workers compensation "when the respective liability of the two insurance companies depends on the determination of the date of injury").

        See SCR 20:1,7(a), governing conflict of interest.

       No evidence exists in the present case, as there was in Carkel, that the two parties worked together to defeat the statutory limits on substitution requests under Wis. Stat. § 801.58(3). See Carkel, 141 Wis. 2d at 268 (concluding that the plaintiff and one defendant were united in interest, in part, because the record suggested that the plaintiff may have named a corporation — of which he was the director, president, and sole shareholder — as a defendant rather than as a plaintiff in order to allow the corporation to seek substitution of the judge).


author: DIANE S. SYKES, J.

text:
    John C. Hagen, Plaintiff-Appellant-Petitioner, v. City of Milwaukee Employee's Retirement System Annuity and Pension Board, Defendant-Respondent.
    Supreme Court

      No. 01-3198.

      Oral argument April 10, 2003.

    Decided June 18, 2003.

    2003 WI 56
    (Also reported in 663 N.W.2d 268.)

      For the plaintiff-appellant-petitioner there were briefs by Michael T. Sheedy and Michael T. Sheedy & Associates, Milwaukee, and oral argument by Michael T Sheedy.

    For the defendant-respondent there was oral argument by Maurita Houren, assistant city attorney, with whom on the brief was Grant F. Langley, city attorney.
   DIANE S. SYKES, J.

¶ 1. The question in this case is whether the circuit court can acquire personal jurisdiction over a defendant when the plaintiff does not serve the summons and complaint on the defendant, but, rather, mistakenly serves a nonparty in the same building, allegedly after having been directed to do so by a person in the defendant's office. The answer is no.

¶ 2. John Hagen filed a lawsuit against the City of Milwaukee Employes' Retirement System/Annuity and Pension Board (MERS) seeking certiorari review of its decision to terminate his disability benefits. Hagen's process server asserted in an affidavit that he attempted service of the summons and complaint at the MERS office in Milwaukee City Hall, but was told to go to the city clerk's office instead. The city clerk's office issued a receipt for the summons and complaint.

¶ 3. MERS is a separate political body from the City of Milwaukee and was never served with the summons and complaint. MERS filed an answer asserting lack of personal jurisdiction based on this defective service, but the defect went uncorrected. MERS moved for summary judgment based on the absence of personal jurisdiction, and the circuit court granted the motion. The court of appeals affirmed.

¶ 4. Personal jurisdiction over a body politic such as MERS may be obtained by service of the summons and complaint on an officer, director, or managing agent of the body politic, or substitute service on a "person who is apparently in charge of the office" of an officer, director, or managing agent of the body politic. See Wis. Stat. ' §§ 801.02(1) and 801.11(4)(a)(7) and (b) (1999-2000). Service on a nonparty, even where it occurs erroneously in reliance on the mistaken direction of a person in the office of the defendant, does not constitute service on the defendant. The motion for summary judgment based on the absence of personal jurisdiction was properly granted.

I. FACTS AND PROCEDURAL HISTORY

¶ 5. For purposes of this review, the facts are taken from the complaint and affidavits submitted on the motion for summary judgment. John Hagen worked as a laborer in the City of Milwaukee Department of Public Works for many years. In 1989, he suffered an injury on the job. He retired in 1990 on duty disability, subject to periodic medical examinations to determine his continued eligibility for disability benefits. In 2000, MERS terminated Hagen's disability benefits following a medical reexamination. Hagen appealed the decision administratively, and in March 2001, MERS affirmed its original decision.

¶ 6. On April 19, 2001, Hagen filed a summons and complaint in Milwaukee County Circuit Court seeking certiorari review of MERS' termination of his disability benefits. MERS answered on June 7, 2001, asserting as an affirmative defense lack of personal jurisdiction based on Hagen's failure to serve MERS with an authenticated copy of the summons and complaint. The answer also asserted the affirmative defense of failure to state a claim upon which relief can be granted against "the City of Milwaukee, the party who was served in this matter." Hagen did not further attempt to effectuate service on MERS, even though he had 41 days left in which to do so, pursuant to Wis. Stat. § 801.02(1).

¶ 7. On September 10, 2001, MERS moved for summary judgment, again asserting the absence of personal jurisdiction due to failure of service. MERS submitted an affidavit of Anne M. Bahr, its Secretary and Executive Director, asserting that she is the officer designated to accept service of process on behalf of MERS, and that MERS had never been served with a summons and complaint. MERS also filed an affidavit of Kathleen Marquardt, a staff assistant in the city clerk's office, asserting that the city clerk's office, located in Room 205 of City Hall, accepts service of process for the City of Milwaukee only, not for any other municipal entity.

¶ 8. Hagen submitted an affidavit of process server Fred Meier, who asserted that on April 27, 2001, he went to Milwaukee City Hall to serve MERS. Meier stated in his affidavit that when he went to the MERS office in City Hall Room 603, the person who greeted him told him that process "must be served at the city clerk's office." Meier further stated that he proceeded to the city clerk's office where he was greeted by Kathy Marquardt, who "accepted the paper and also face stamped my return copy of the summons. At no time did the city clerk's office state that this was not accepted by them."

¶ 9. MERS filed a supplemental affidavit of Bahr describing the office procedure for acceptance of service of process and asserting that MERS' "front office personnel [have] no knowledge of ever referring anyone to the City Clerk's office for acceptance of service."

¶ 10. The circuit court, the Honorable Thomas E Donegan, granted the motion for summary judgment and dismissed the case. The court of appeals affirmed. We accepted review and now affirm.

II. STANDARD OF REVIEW

¶ 11. We review the circuit court's grant of summary judgment de novo, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is granted when it is clear that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). There are some facts in dispute regarding the precise circumstances surrounding the service of process on the city clerk's office. Even accepting Hagen's version of the facts to be true, however, summary judgment dismissing the case is required as a matter of law.

III. ANALYSIS

¶ 12. A circuit court obtains personal jurisdiction over a defendant when the defendant is served with a summons in the manner prescribed by the statutes. Heaston v. Austin, 47 Wis. 2d 67, 70-71, 176 N.W.2d 309 (1970). The plaintiff has the burden to prove compliance with statutory service requirements, that is, to establish that the defendant was properly served and is therefore subject to the court's jurisdiction. Danielson v. Brody Seating Co., 71 Wis. 2d 424, 427-28, 238 N.W.2d 531 (1976).

¶ 13. Failure to obtain personal jurisdiction over the defendant by statutorily proper service of process is a fundamental defect fatal to the action, regardless of prejudice. Am. Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 534-35, 481 N.W.2d 629 (1992). "Even if defendant actually knew of the pendency of the action, this is not equivalent to service." Heaston, 47 Wis. 2d at 71. "[W]hen a statute prescribes how service is to be made, the statute determines the matter." Punke v. Brody, 17 Wis. 2d 9, 13, 115 N.W.2d 601 (1962); see also Gangler v. Wis. Elec. Power Co., 110 Wis. 2d 649, 329 N.W.2d 186 (1983). Thus, the threshold question in a dispute over the adequacy of service is whether the statutory procedures have been met. Keske v. Square D Co., 58 Wis. 2d 307, 311-12, 206 N.W.2d 189 (1973).

¶ 14. The general statutory requirements for commencement and service of a civil action are contained in Wis. Stat. § 801.02(1):

801.02 Commencement of action. (1) A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing.

Wis. Stat. § 801.02(1) (emphasis added) (applicable to certiorari complaints pursuant to Wis. Stat. § 801.02(5)). Accordingly, Hagen had 90 days after filing his lawsuit to serve MERS with an authenticated copy of the summons and complaint.

¶ 15. MERS is a political corporation. The specific statutory requirements for service of process for purposes of obtaining personal jurisdiction over political corporations are contained in Wis. Stat. § 801.11(4):

801.11 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:
(4) OTHER POLITICAL CORPORATIONS OR BODIES POLITIC, (a) Upon a political corporation or other body politic, by personally serving any of the specified officers, directors, or agents:
7. If against any other body politic, an officer, director, or managing agent thereof.
(b) In lieu of delivering the copy of the summons to the person specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.

Wis. Stat. § 801.11(4)(a) and (b).

¶ 16. MERS is a separate political body from the City of Milwaukee. Therefore, Hagen was required to serve an officer, director, or managing agent of MERS (not an officer, director, or managing agent of the City of Milwaukee) before the circuit court could exercise personal jurisdiction over MERS. The statute allows for substitute service on "the person who is apparently in charge of the office" of an officer, director, or managing agent of a political corporation or other body politic. Wis. Stat. § 801.11(4)(b). The statute does not allow for substitute service on a separate and distinct nonparty political corporation.

¶ 17. The statutory language governing service of process on business corporations generally parallels the language in Wis. Stat. § 801.11(4) (b) governing service of process on political corporations. See Wis. Stat. § 801.11(5)(a). Wisconsin Statute § 801.11(5)(a), like its counterpart subsection (4) (b), allows substitute service on "the person who is apparently in charge of the office" of an officer, director, or managing agent of a corporate defendant. Id. We have interpreted this phrase to allow service on a person whom the process server reasonably believed, under the circumstances, to be in charge of the office of an officer, director, or managing agent of the corporate defendant.

¶ 18. In Keske, the process server went to the offices of the defendant company and asked to see an officer, director, or managing agent of the company. Keske, 58 Wis. 2d at 309. When told none was available, he asked to see the person in charge of the office. Id. The receptionist directed the process server to the company's director of industrial relations, who, although not in fact "in charge," nevertheless accepted service. Id. at 310. We affirmed the circuit court's conclusion that it was "not unreasonable" under these circumstances for the process server to infer that the director of industrial relations was "apparently in charge" of the office of an "officer, director or managing agent" of the company within the meaning of the statute. Id. at 314-15.

¶ 19. In Horrigan v. State Farm Insurance Co., 106 Wis. 2d 675, 317 N.W.2d 474 (1982), the process server went to the office of the defendant insurance company and informed the receptionist that he had a summons to serve. Id. at 678-79. The receptionist told the process server to " 'take a seat' and that she would get someone to receive the papers." Id. at 679. Soon after, a man appeared- from the interior offices and entered the office waiting room. Id. Assuming without further inquiry that this man was the person the receptionist had called for, the process server delivered the summons to him. Id.

¶ 20. We held in Horrigan that "the statute requires that the facts and circumstances surrounding the service must he such that a reasonable process server would conclude that he has served the person apparently in charge of the office of an officer, director or managing agent of the corporation to be served." Id. at 677. We concluded that the facts and circumstances surrounding the service in Horrigan established the process server's "reasonable belief' that the person he had served at the defendant insurance company was the person in charge, authorized to accept service. Id. at 684.

¶ 21. These cases stand for the proposition that personal jurisdiction over a corporate defendant may be acquired if the facts demonstrate that in effectuating substitute service on "the person who is apparently in charge of the office" of an officer, director, or managing agent of the defendant, the process server reasonably but mistakenly serves a person who appears to be, but in fact is not, "in charge" of that office. These cases do not stand for the proposition that personal jurisdiction can be acquired by service on a separate and distinct nonparty, even where the nonparty service occurs by virtue of the misdirection of the process server by . a person in the defendant's office.

¶ 22. The court of appeals has twice refused to extend personal jurisdiction over defendants in cases in which service on the wrong entity is attributable to a process server who has been misdirected. In Gomez v. Labor & Industry Review Commission, 153 Wis. 2d 686, 451 N.W.2d 475 (Ct. App. 1989), the plaintiff attempted to serve a summons and complaint seeking judicial review of a decision of the Labor and Industry Review Commission (LIRC) at the Watertown job services office of the Department of Industry, Labor, and Human Relations (DILHR). Id. at 688. The process server was directed to and did serve the summons and complaint in the Madison office of the worker's compensation division of DILHR. Id. at 688-89. The court of appeals upheld the circuit court's dismissal of the case based on the failure to serve LIRC. Id. at 687-88. The court of appeals concluded that the process server "did not serve the papers on a person authorized to accept them; indeed, she did not even serve them on an employee of the commission, but on a receptionist in the office of a related, but very different, agency." Id. at 692.

¶ 23. The court of appeals reached a similar conclusion in Bar Code Resources v. Ameritech Information Systems, 229 Wis. 2d 287, 599 N.W.2d 872 (Ct. App. 1999). There, the contract between the parties specified that defendant Ameritech's agent for service of process was its vice-president and general counsel, located on the 23rd floor of its office building in Chicago. Id. at 289-90. The process server approached the security desk at the Ameritech building in Chicago and stated that he had a summons and complaint to serve on Ameritech. Id. at 289. The security manager, an employee of Illinois Bell, an Ameritech subsidiary, said he was authorized to accept service, and the process server served him. Id.

¶ 24. The court of appeals concluded that service on the Illinois Bell security.manager, "a person not even in the employ of the targeted corporation," was insufficient to satisfy the statutory requirements for personal jurisdiction over the defendant Ameritech. Id. at 294-95. The court held that the place of service — the office of a corporate officer, director, or managing agent —was an objective element of the statute, not subject to inquiries about the process server's subjective reasonable belief. Id. at 292. The court concluded that the plaintiff had not established compliance with this objective requirement of the statute. Id. at 294-95. Service on a person "apparently in charge" of the wrong office is insufficient, even if it is based upon a process server's reasonable belief in the propriety of service.

¶ 25. Accordingly, while the statute allows for reasonable mistakes regarding the person "who is apparently in charge of the office" of an officer, director, or managing agent of the defendant, it does not allow for mistaken service on a person in the office of a nonparty to the litigation, regardless of whether the mistake could be considered reasonable. Here, Hagen served neither the defendant MERS nor any of its representatives. As in Gomez, the plaintiff here served a "related, but very different" governmental agency. Hagen was placed on notice of the defective service by MERS' answer, but did not correct it, even though ample time remained in which to do so.

¶ 26. Hagen has not demonstrated compliance with the requirements of Wis. Stat. §§ 801.02(1) and 801.11(4). The circuit court did not acquire personal jurisdiction over MERS, and therefore properly granted summary judgment dismissing the complaint.

By the Court. — The decision of the court of appeals is affirmed.

       All references to the Wisconsin Statues are to the 1999-2000 version.

        See Milwaukee City Charter § 36-09-6 ("The retirement system shall have all of the powers and privileges of a corporation, as enumerated in chs. 180 and 182, Wis. Stats.").

        See, e.g., Milwaukee City Charter § 36-15-1 ("The general administration and responsibility for the proper operation of the retirement system and for making effective the provisions of this act are hereby vested in an annuity and pension board."). Boards and commissions that operate independently are subject to direct judicial proceedings as "bodies politic" within Wis. Stat. § 801.11(4)(a)(7). Watkins v. Milwaukee Cty. Civ. Serv. Comm'n, 88 Wis. 2d 411, 417-18, 276 N.W.2d 775 (1979).