## Facts

- Shannon E. Tesar was the father of an unborn child carried by Alicia M. Vander Meulen.
- Vander Meulen, while pregnant and driving on a public highway, was involved in a motor-vehicle collision with a vehicle driven by Brett R. Anderson (and related parties).
- The collision allegedly caused the death of the unborn child, described in the litigation as a viable, near-term fetus that was stillborn after the crash.
- Tesar filed suit in Wisconsin circuit court alleging negligence and seeking wrongful-death damages for the child’s death.
- Tesar sued the other driver(s) and also sued American Family Mutual Insurance Company as the automobile liability insurer for Vander Meulen (and as relevant, other insured defendants), proceeding directly against the insurer under Wisconsin’s direct-action statute.
- For purposes of the insurer’s summary-judgment motion, the parties treated key factual disputes (including paternity and causation between the crash and the stillbirth) as assumed or not contested for the motion.
- American Family moved for summary judgment, arguing that Vander Meulen owed no legal duty to her fetus and that, even if ordinary negligence elements could be stated, Wisconsin public-policy factors barred liability for maternal negligence causing prenatal injury or death.
- The circuit court granted summary judgment to American Family and dismissed the insurer from the case on the ground that the mother owed no duty to the fetus (and alternatively on public-policy grounds).
- Tesar appealed.

## Issues

1. Whether a pregnant driver’s general duty to exercise ordinary care while driving on public roads extends to her viable unborn child, allowing the child’s father to pursue a negligence-based wrongful-death claim against the driver’s automobile liability insurer under Wisconsin’s direct-action statute.
2. Whether Wisconsin judicial public-policy factors required dismissal of the claim as a matter of law at the summary-judgment stage.

## Decision

- The Wisconsin Court of Appeals reversed the summary judgment dismissing American Family and remanded for further proceedings.
- The court held that Wisconsin negligence law recognizes a general duty of ordinary care that reaches foreseeable victims of negligent driving, and that a viable fetus may be a foreseeable victim in an automobile accident involving the pregnant mother.
- The court rejected the circuit court’s conclusion that a categorical “no duty to the fetus” rule barred the claim in this motor-vehicle negligence setting.
- The court further held that the asserted public-policy concerns did not justify barring liability as a matter of law on summary judgment based on the record presented.

## Legal Principles

- Wisconsin negligence law applies a broad duty of ordinary care: individuals must exercise ordinary care to avoid causing foreseeable harm to others.
- In determining duty in Wisconsin negligence cases, foreseeability is part of the analysis; the duty question is not limited to specially defined relationships when the conduct creates a foreseeable risk of harm.
- A viable unborn child can be treated as a foreseeable victim of negligent conduct, including negligent operation of a motor vehicle, for purposes of a wrongful-death claim premised on negligence.
- Wisconsin’s wrongful-death remedy may be pursued when death is alleged to have been caused by a “wrongful act, neglect or default,” and the court declined to create a categorical exception for fetal death caused by the mother’s negligent driving.
- Wisconsin’s direct-action statute allows an injured claimant to sue a liability insurer directly for covered negligence of an insured, so the father’s claim could proceed against the mother’s auto insurer if negligence and coverage were proven.
- Wisconsin courts may limit negligence liability on public-policy grounds, but those limitations are fact-sensitive and are not applied as an automatic bar simply because the claim involves prenatal injury or maternal conduct; generalized fears of open-ended liability were not enough on this record to end the case at summary judgment.

## Conclusion

The court of appeals held that a pregnant driver’s duty of ordinary care while driving extends to her viable unborn child, permitting the child’s father to pursue a negligence-based wrongful-death claim directly against the mother’s automobile liability insurer, and it ruled that public-policy factors did not bar the claim as a matter of law at the summary-judgment stage.


Tesar v. Anderson, 789 N.W.2d 351 (2010)