Meihost v. Meihost , 1966 Wisc. LEXIS 1125 ( 1966 )

Currie, C. J.

(concurring). I concur in the opinion of the court, except that I have some reservation with respect to the last paragraph thereof.

The learned trial court grounded its decision, in holding no liability on the part of Mackai existed, on intervening cause. Intervening cause, however, does not relieve the first actor from liability for his act of negligence if such act is a substantial factor in causing the accident unless it is held to be a superseding cause.¹ In order for an intervening cause to be a superseding cause, the court must invoke a policy determination that the accident causing harm was so beyond the reasonable expectation of the first actor, as to make it unconscionable to impose liability.² The guidelines to be applied by the court in determining that the intervening cause was a superseding cause are those set forth in Restatement, 2 Torts, p. 1196, sec. 447.³ This section of the Restatement, provides:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if

“(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

“ (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

“ (c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.”

It would be difficult to contend that a car owner who leaves the key in the ignition lock of a car parked on a public street is not negligent. However, between this act on the part of the car owner and the accident, which results from a thief stealing the car and negligently operating it so as to cause an accident, two intervening causes must have occurred. The first is the thief’s act in stealing the car, and the second is his negligent operation of it resulting in the accident. Under the quoted guidelines of the Restatement, the first of these two intervening causes ought not be held to be a superseding cause because the car owner should have realized that, by leaving the key in the ignition lock, some person might steal the car.⁴ The second intervening cause, i. e., the thief’s negligent operation of the stolen vehicle, presents a much closer question. It could well be argued that such negligent operation is such an act that a reasonable person in the owner’s position would not regard it as highly extraordinary.⁵

1 Strahlendorf v. Walgren Co. (1962), 16 Wis. (2d) 421, 114 N. W. (2d) 823.

2 Strahlendorf v. Walgren Co., supra; Ryan v. Cameron (1955), 270 Wis. 325, 71 N. W. (2d) 408. Cf. Schilling v. Stockel (1965), 26 Wis. (2d) 525, 133 N. W. (2d) 335.

3 Ryan v. Cameron, supra; Dombrowski v. Albrent Freight & Storage Corp. (1953), 264 Wis. 440, 59 N. W. (2d) 465.

4 Par. (a), Restatement, 2 Torts, p. 1196, see. 447.

5 Par. (b), Restatement, 2 Torts, p. 1196, see. 447.