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10/25/83 RONALD J. TOELLER v. MUTUAL SERVICE

October 25, 1983

RONALD J. TOELLER, A MINOR BY GERALD J. BLOCH, HIS GUARDIAN AD LITEM, RICHARD TOELLER AND SUSAN TOELLER, PLAINTIFFS-RESPONDENTS AND CROSS-RESPONDENTS.
v.
MUTUAL SERVICE CASUALTY INSURANCE CO., SUBURBAN SERVICES, INC., AND STEVEN KUCHENBACH, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS, AND CROSS-RESPONDENTS, ROBERT K. STUEDEMANN AND RUDOLPH STUEDEMANN TRUCKING AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, THIRD-PARTY DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS



Appeal and Cross-Appeal from a judgment of the Circuit Court for Milwaukee County: Marvin C. Holz, Judge.

Petition to Review Dismissed.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Decker

Steven Kuchenbach, Mutual Service Casualty Insurance Co., and Suburban Services, Inc., (appellants) appeal from a judgment upholding a jury's determination that Kuchenbach was 93% causally negligent for injuries suffered by Ronald Toeller. The appellants argue that Kuchenbach should not be held liable for Toeller's injuries because Kuchenbach's actions did not create a probability of harm, were not a substantial factor in producing the accident, and were so remote from the injury that public policy grounds should preclude liability. They further argue that the jury's apportionment of causal negligence is contrary to the great weight and clear preponderance of the evidence. While we acknowledge that Kuchenbach's actions were somewhat more removed from the injury than is usually the case, we are unpersuaded that his actions were so remote as to preclude findings of negligence and proximate cause or to mandate that public policy limit liability. We further conclude that there was ample evidence to support the jury's apportionment of negligence. Accordingly, we affirm the judgment. *fn1

On the morning of January 22, 1980, Ronald Toeller (Toeller) was injured when the bicycle he was riding to school collided with an empty gravel truck driven by Robert Stuedemann on Highway 100 near the intersection of Highway 36. Toeller was, at the time, eleven years old. Toeller usually rode a school bus to and from school.

On the previous afternoon, while riding home on a school bus driven by Kuchenbach, Toeller and another boy were reprimanded by Kuchenbach for their conduct and were told that they would not be allowed to ride the bus on the following day. Kuchenbach did not, however, inform the school authorities or the parents of this suspension. It is undisputed that this action was contrary to the accepted guidelines regarding the transportation of students. It is also apparent from the record that discipline of this sort was properly in the province of the school administrator than the bus driver.

The school principal, Douglas Rosenbecker, was made aware of the bus incident that evening by a phone call from the other suspended boy's mother, but he testified that she did not inform him of the suspension of bus riding privileges for both children. He took no further action that evening.

Ronald Toeller did not tell his parents that he would not be allowed to ride the bus on January 22. Instead, that morning, he borrowed his brother's bicycle and, without his parents' knowledge, began riding it to school.

While riding along the shoulder and far right lane of Highway 100, Toeller was passed from behind by a truck driven by Robert Stuedemann. Stuedemann testified that he saw Toeller and attempted to give him a wide berth while passing, but that Toeller lost control and swerved left into the truck. Toeller's extensive head injuries left him with no memory of the accident.

The jury found Suburban Services through Kuchenbach 93% causally negligent, Rosenbecker 5% causally negligent and Stuedemann and Toeller both 1% causally negligent. This appeal ensued.

The appellants first contend Kuchenbach's actions "created at most a mere possibility that Ron Toeller might be injured," and that such is not actionable negligence because the duty to use due care arises from the probability rather than the bare possibility of injury. See Grube v. Moths, 56 Wis. 2d 424, 433, 202 N.W.2d 261, 266 (1972). We cannot agree that Kuchenbach's actions produced only the bare possibility of an injury.

Here, there is no factual dispute concerning the actions of Kuchenbach on the afternoon of January 21, 1980: in contravention of accepted guidelines, Kuchenbach forbade Toeller from riding the bus the following day; he informed neither the principal nor Toeller's parents of this action. Where the facts relating to the injury that allegedly give rise to a legal duty are not in dispute, the question of the existence of a duty is a question of law for this court to decide. Johnson v. Misericordia Community Hospital, 99 Wis. 2d 708, 723, 301 N.W.2d 156, 164 (1981).

As our supreme court stated in A.E. Investment Corp. v. Link Builders, 62 Wis. 2d 479, 484, 214 N.W.2d 764, 766 (1974):

A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone. A party is negligent when he commits an act when some harm to someone is foreseeable. Once negligence is established, the defendant is liable for unforeseeable consequences as ...


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