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Restitution — Damages — Causation

State v. Oscar A. Rash, 2003 WI App 32, PFR filed 2/25/03
For Rash: Peter Koneazny, Diana Felsmann, SPD, Milwaukee Appellate

Issue: Whether the restitution order for damage to the victim’s car was supported by sufficient causation, where the defendant abducted the victim for 20-30 minutes, during which time the unattended and unlocked car was broken into by unknown actor(s).


¶6. “Before restitution can be ordered” under Wis. Stat. § 973.20(2) there must be “a causal nexus” between the “crime considered at sentencing” and the damage. Canady, 2000 WI App 87 at ¶9, 234 Wis. 2d at 267, 610 N.W.2d at 149. “In proving causation, a victim must show that the defendant’s criminal activity was a ‘substantial factor’ in causing damage. The defendant’s actions must be the ‘precipitating cause of the injury’ and the harm must have resulted from ‘the natural consequence[s] of the actions.'” Id., 2000 WI App 87 at ¶9, 234 Wis. 2d at 267, 610 N.W.2d at 150 (quoted sources omitted).

¶7. Canady upheld a restitution order for damage caused by a police officer attempting to take Canady, who was charged with both burglary and resisting arrest, into custody. Id., 2000 WI App 87 at ¶¶11-12, 234 Wis. 2d at 268-269, 610 N.W.2d at 150. A police officer arresting Canady thought that a pry bar in Canady’s jacket could be used as a weapon and threw it out of Canady’s reach; the pry bar struck and broke a glass door-pane. Id., 2000 WI App 87 at ¶2, 11, 234 Wis. 2d at 265, 268, 610 N.W.2d at 148-149, 150. Upholding the trial court’s order that Canady pay for the broken window, Canady noted that the requisite “‘precipitating cause'” did not mean that the defendant must have caused directly or even “intended or expected” the damage encompassed by the restitution order; it is sufficient if the defendant’s “actions were a substantial factor” in causing the damage in a “but for” sense. Id., 2000 WI App 87 at ¶¶9, 12, 234 Wis. 2d at 267, 268, 610 N.W.2d at 150 (quoted source omitted). Thus, “precipitating cause” merely means that the defendant’s criminal act set into motion events that resulted in the damage or injury. “The phrase ‘substantial factor’ denotes that the defendant’s conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.” Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 458-459, 267 N.W.2d 652, 654 (1978). For example, in the civil-law context, the first tortfeasor is responsible for subsequent harm caused by those rendering aid to the injured plaintiff, irrespective of whether those rendering aid were negligent, Butzow v. Wausau Mem’l Hosp., 51 Wis. 2d 281, 286-287, 187 N.W.2d 349, 351-352 (1971), or by subsequent tortfeasors whose contribution to the plaintiff’s ultimate damages or injuries was a “foreseeable consequence” of the original tortfeasor’s negligence, Johnson v. Heintz, 61 Wis. 2d 585, 600-602, 213 N.W.2d 85, 93-94 (1973).

¶8. The word “crime” as used in Wis. Stat. § 973.20(2) “‘encompass[es] all facts and reasonable inferences concerning the defendant’s activity related to the ‘crime’ for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted.'” State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104, 109 (Ct. App. 1999) (quoted source omitted, emphasis in quoted source). Thus, in ordering restitution, the sentencing court must “take[] a defendant’s entire course of conduct into consideration” and not “break down the defendant’s conduct into its constituent parts and ascertain whether one or more parts were a cause of the victim’s damages.” Ibid. (quoted source omitted). Additionally, a criminal cannot escape responsibility for restitution simply because he or she was not aware of the damage. Id., 230 Wis. 2d at 336-337, 602 N.W.2d at 110; cf. Butzow, 51 Wis. 2d at 287, 187 N.W.2d at 352 (“forseeability” is element of negligence not of “causation”). Given the legislative concern that victims be made whole insofar as that is possible, a victim’s burden of proof to show causation is certainly not higher than would be a plaintiff’s comparable burden in a civil case, and, although we do not have to decide it here, may be substantially lower. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (“cases should be decided on the narrowest possible ground”). Here, it was reasonable for the postconviction court to conclude that but for Rash’s crime, Ivory’s car would not have been taken and damaged and that Ivory’s property in the car would not have been stolen.

Here’s the long and short of it: Commit a crime, and you’re responsible (in restitution) for anything that subsequently happens. Though not discussed by the court, this broad view of causation undoubtedly stems from the idea that “Wisconsin does not follow the majority view in Palsgraf v. Long Island Railroad Co., 248 NY 339, 162 N.E. 99, 99-101 (NY 1928), under which the existence of a duty of care depends upon whether injury to the particular victim was foreseeable.” Gritzner v. Michael R., 2000 WI 68, ¶20 n. 3, 235 Wis.2d 781, 611 N.W.2d 906. For a learned discussion, see Judge Dykman’s dissent in Hicks v. Nunnery, 2002 WI App 87, ¶¶77 et seq. But it’s an equal truism that causation isn’t limitless; remoteness of harm is always a potential causation-inhibitor. The question, in an inquiry simply elided by the court, is whether on policy grounds the harm is too remote from the act to tolerate ascribing causal responsibility to that actor. Foreseeability may or may not be an ingredient of this inquiry; but surely the intervention of an independent criminal agent wholly unconnected to the defendant raises a severe question of remoteness. And if nothing else, the court’s failure to discuss remoteness-of-harm may allow such an argument to be raised in an appropriate factual setting.

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