Appeals court says public policy ends lawsuit stemming from car crash 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 18, 2011 – The emotional and physical injury that two parents experienced after the death of their young daughter is too remote from the negligence they allege, meaning their claim for damages cannot be sustained.

That’s what the District II Wisconsin Court of Appeals concluded in Kidd v. Allaway, 2011AP50 (Nov. 16, 2011), a tragic case that stemmed from a 2008 car crash. Eighteen-year-old Krista Kidd, riding in the passenger seat, was ejected from the vehicle when it slid on a snowy road and collided head-on with oncoming traffic. She died instantly before being struck by two other oncoming cars as she lay in the road. The first car slowed and stopped. The second car didn’t.

Krista’s parents, Michael and Julie Kidd, alleged that John Allaway, driver of the second car, negligently mutilated Krista’s body because he was driving at a high rate of speed in poor conditions and did not slow down despite warnings from a passenger riding in his vehicle.

Due to the severity of the injuries, the Kidds were not allowed to view their daughter’s body. They argued that Allaway’s negligence caused them severe emotional and physical injury because they could not say goodbye to Krista and entomb her with respect.

A circuit court dismissed the case, on public policy grounds, for failure to state a claim. The Kidds appealed, but the appeals court affirmed, upholding Allaway’s public policy argument. According to the appeals court, Wisconsin courts may deny liability on six public policy grounds, “even in the face of proven or assumed negligence.”

In this case, dismissal was warranted because the Kidds’ injury was too remote from the negligence alleged, the recovery sought was not proportional to Allaway’s alleged culpability, and a recovery would place an unreasonable burden on Allaway.

Allaway’s alleged negligence, even if it added to the pain experienced by Krista’s parents, was just one event in a series of tragic events that involved the death of their daughter. Thus, the argument that Allaway directly caused their pain is too remote, the appeals court explained.

“It is the entire sequence of events that results in an indirect and broken chain of causation between Allaway’s alleged negligence and the Kidds’ severe emotional distress and resulting physical injuries,” wrote Judge Lisa Neubauer. “To hold [Allaway] fully responsible for the Kidds’ emotional distress (which is not only remote but would be speculative) would be wholly out of proportion to the claimed role Allaway had in the tragic sequence of events.”