Ross Kopfer v. Eric Daniel Lalor

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 26, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP490 Cir. Ct. No. 2020CV4578

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

ROSS KOPFER, LISA KOPFER, JACOB ROSS KOPFER, MARYCLAIRE GRACE
KOPFER, AND SARAH ANN KOPFER,

PLAINTIFFS-APPELLANTS,

CARL OWEN, LANDMARK AMERICAN INSURANCE COMPANY, FEDERATED
MUTUAL INSURANCE COMPANY, ARTISAN AND TRUCKERS CASUALTY CO.,
CLAYTON MORTENSON, JORDAN KOSINSKI, ESTATE OF JOSEPH KOSINSKI,
AMERICAN FAMILY MUTUAL INSURANCE CO., DAWN MARSHALL, FIRST
DAKOTA INDEMNITY CO., TROY LARSEN, TRACY LARSEN, RANDY GORDON,
DANICA GORDON AND COURTS HEALTH BENEFITS PLANS COOPERATION,

INTERVENORS,

ESTATE OF SAMANTHA ROSE MCMULLEN,

INTERVENOR-CO-APPELLANT,

UNITEDHEALTHCARE INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFF,

WISCONSIN DEPARTMENT OF ADMINISTRATION, BUREAU OF STATE RISK
MANAGEMENT AND QUARTZ HEALTH BENEFIT PLANS CORPORATION,

INTERVENORS-INVOLUNTARY-PLAINTIFFS,
No. 2022AP490

V.

ERIC DANIEL LALOR, SECURA INSURANCE, A MUTUAL COMPANY AND
SHEPARD LOGISTIC SOLUTIONS LLC,

DEFENDANTS-RESPONDENTS,

SELECTIVE INSURANCE COMPANY OF THE SOUTHEAST AND K EXPRESS INC.,

DEFENDANTS-CO-APPELLANTS,

GEICO CASUALTY COMPANY AND ZURICH AMERICAN INSURANCE COMPANY,

INVOLUNTARY-DEFENDANTS.

APPEAL from an order of the circuit court for Milwaukee County:
LAURA GRAMLING PEREZ, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Dugan, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Ross Kopfer appeals from an order of the circuit
court granting summary judgment in favor of Eric Daniel Lalor and dismissing
Kopfer’s claims.1 Kopfer argues that summary judgment is inappropriate because

1
For ease of reference, we refer to the parties in this appeal as Kopfer and Lalor.
However, we recognize that Ross Kopfer, joined by his wife and children, filed the complaint in
this case, and Lalor is joined by his employer and his employer’s insurer, Shepard Logistic
Solutions, LLC and Secura Insurance, A Mutual Company. Additionally, Kopfer has been joined
by additional parties to this action in pursuing this appeal, including the Estate of Samantha Rose
McMullen, Selective Insurance Company of the Southeast, and K Express, Inc.

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No. 2022AP490

whether Lalor was a substantial factor in causing Kopfer’s injuries is a question of
fact for the jury and, alternatively, that public policy does not preclude the
imposition of liability. Upon review, we conclude that Lalor was not a substantial
factor in producing Kopfer’s injuries and therefore, was entitled to judgment as a
matter of law. Accordingly, we affirm.

BACKGROUND

¶2 This case arises out of a number of accidents that occurred in the
morning hours of June 12, 2020, on northbound I-39/90/94 near the Town of
Arlington in Columbia County. The first accident occurred around 3:30 a.m.
when two semi-tractor trailers collided. Emergency personnel responded to the
scene of the accident and closed the far right lane.

¶3 The second accident (the Lalor accident) occurred at approximately
4:51 a.m. when Lalor, driving a box truck, collided with the emergency personnel
that were on the scene assisting with the prior accident. Additional emergency
personnel responded to the scene at approximately 5:39 a.m., and all three lanes of
traffic were closed. Traffic was diverted off the highway, and the aftermath
resulted in a traffic backup approximately two miles long. Emergency personnel
parked their vehicles perpendicular across the roadway, lit flares, and placed
barrels and electronic signs along the roadway to alert motorists of the accident
and divert them off the highway to an alternate route. Lalor was transported from
the scene of the accident to the hospital, where he arrived at about 6:09 a.m.

¶4 Kopfer was driving northbound on the same highway on the
morning of June 12, 2020, and he was forced to come to a stop in the traffic
backup. While he was stopped on the highway, another semi-tractor truck, driven
by Philip Anthony Bruno, failed to stop, causing a third accident (the Kopfer

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accident) when it collided with Kopfer’s vehicle, as well as several others. Kopfer
was transported to the hospital with severe injuries, which he lists as a transected
aorta, a lacerated kidney, a lacerated liver, compound fractures to his lower right
leg, a fractured pelvis, collapsed lung, perforated diaphragm, twelve broken ribs,
perforated colon, and a fractured eye orbital. Bruno and several others died. The
Kopfer accident occurred at approximately 6:45 a.m., and it was located roughly
two miles down the road from the Lalor accident.

¶5 Kopfer subsequently filed a summons and complaint, naming Lalor,
Secura Insurance, A Mutual Company, Shepard Logistic Solutions, LLC,
Selective Insurance Company of the Southeast, and K Express Inc.2 In the
complaint, Kopfer alleged claims for negligence and vicarious liability.

¶6 Lalor, joined by Shepard Logistic Solutions and Secura Insurance,
moved for summary judgment.3 In his motion, he argued that he was not a
substantial factor in causing Kopfer’s injuries because the Lalor and Kopfer
accidents were “two entirely separate accidents that are not connected through an
unbroken sequence of events,” and therefore, he was entitled to judgment as a
matter of law because his negligence was “not actively operating” at the time of
Kopfer’s accident. Additionally, he argued that the public policy factors preclude
imposing liability on Lalor for Kopfer’s injuries. Specifically, Lalor argued that

2
Shepard Logistic Solutions employed Lalor, and Secura Insurance is the insurance
carrier for Shepard Logistic Solutions. K Express employed Bruno, and Selective Insurance is
the insurance carrier for K Express.

In addition to the defendants named by Kopfer in the original complaint, several other
parties, including other individuals involved in the Kopfer accident, intervened and were added
after the filing of the original complaint.
3
Lalor alternatively moved to dismiss the corporate negligence claims that Kopfer filed.

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Kopfer’s injuries were too remote from Lalor’s negligence and holding Lalor
liable would enter a field with no sensible or just stopping point.

¶7 The circuit court agreed with Lalor, granted Lalor’s motion, and
dismissed Kopfer’s claims with prejudice. Kopfer appeals.

DISCUSSION

¶8 On appeal, Kopfer argues that the circuit court erroneously granted
Lalor’s motion for summary judgment. Summary judgment shall be granted “if
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2) (2021-22).4 “Whether the circuit court properly
granted summary judgment is a question of law that this court reviews de novo.”
Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682,
781 N.W.2d 88 (citation omitted).

¶9 Kopfer argues that summary judgment is inappropriate in this case
because whether Lalor was a substantial factor in causing Kopfer’s injuries is a
question for the jury.5 He provides several statistics about the likelihood of a
secondary accident in the aftermath of a primary accident. Based on these

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
5
Kopfer additionally argues that the public policy factors of Alvarado v. Sersch, 2003
WI 55, 262 Wis. 2d 74, 662 N.W.2d 350, do not preclude the imposition of liability. As a result
of our conclusion today, we need not address Kopfer’s public policy argument. See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on
the narrowest possible ground.”).

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statistics, Kopfer argues that the Kopfer accident was a foreseeable consequence
of Lalor’s ongoing negligence from the Lalor accident and that Lalor can be held
responsible for the Kopfer accident. He states, “Unless no reasonable person
could differ on the inferences to be made from the evidence, the causation analysis
in secondary crash situations is a factual determination to be made by the jury.”

¶10 “Whether negligence was a cause-in-fact of an injury is a factual
question for the jury if reasonable people could differ on the issue, and the
question only becomes one of law for judicial decision if reasonable people could
not disagree.” Cefalu v. Continental W. Ins. Co., 2005 WI App 187, ¶9, 285
Wis. 2d 766, 703 N.W.2d 743. To be a cause-in-fact of the injury, the negligence
must be a “‘substantial factor’ in producing the injury.” Id., ¶11. “The phrase,
‘substantial factor,’ denotes that the conduct has such an effect in producing the
injury as to lead a reasonable person to regard it as a cause, using that word in the
popular sense.” Id. (citation omitted). “To prove that a tortfeasor’s negligence
was a substantial factor in producing a plaintiff’s injuries, it must be shown that
there was an ‘unbroken sequence of events’ where the negligence of the tortfeasor
was actively operating at the time of the accident which produced the plaintiff’s
injury.” Id. (citation omitted).

¶11 In the case of a multi-vehicle accident, “the negligence of persons in
an initial accident may expose them to liability for damages resulting from
subsequent impacts.” Id., ¶15. However, as this court concluded in Cefalu, not
all multi-vehicle accidents result in liability for subsequent impacts, and when this
court addressed a multi-vehicle accident in Cefalu, we concluded that the initial
rollover accident “was not a substantial factor in bringing about, and therefore not
a cause-in-fact” of a subsequent accident. Id., ¶2. Thus, we turn to the facts of
Cefalu.

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¶12 In Cefalu, a truck overturned near the intersection of Highways 45
and 36 in the City of Muskego when it attempted to a make a left turn. Id., ¶3.
Emergency personnel arrived on the scene, took control of the nearby intersection,
and began directing traffic through the intersection in order to allow for the
cleanup of the accident nearby. Id., ¶4. Approximately thirty minutes after the
rollover accident, a fire truck, directed by emergency personnel already at the
scene, attempted to enter the intersection of Highways 45 and 36, and the fire
truck collided with another vehicle in the intersection. Id., ¶¶5-6.

¶13 We concluded that, as a matter of law, the driver from the initial
rollover accident was not a substantial factor in producing the second accident in
the intersection and thus was not a cause-in-fact. Id., ¶2. In reaching this
conclusion, we “highlight[ed] the factual distinctions between the circumstances
surrounding the two accidents and the circumstances surrounding the accidents” of
prior multi-vehicle accident cases. Id., ¶¶16-18. We stated:

First, in all three of the multi-vehicle collision cases, the
subsequent accident occurred when another vehicle
physically collided with the scene of the earlier accident.
Here, there was a physical separation between the two
accidents…. Second, … the initial and subsequent
collisions were slightly closer in time than the two
accidents in this case.

Third, in the three previous cases, the subsequent
accident occurred before the accident scene had been
secured by emergency personnel. Here, … emergency
personnel from various departments arrived at the accident
scene.

Finally, in the other chain reaction accident cases,
the drivers involved in the subsequent accidents were not
aware of the other accident until moments before impact.

Id. After so doing, we concluded that “there does not exist an unbroken sequence
of events connecting the two accidents” such that the rollover accident was a

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No. 2022AP490

substantial factor in producing the second accident, and we concluded that “[t]his
[was] the only reasonable conclusion that can be drawn from the facts presented.”
Id., ¶¶2, 19.

¶14 Thus, to determine whether Lalor was a substantial factor in
producing the Kopfer accident, we look to the same facts we considered important
in Cefalu. In particular, we look to the physical separation between the accidents,
the time between the accidents, the presence of emergency personnel at the scene
of the accidents, and whether “the drivers involved in the subsequent accidents
were not aware of the other accident until moments before impact.” Id., ¶¶16-18.

¶15 Turning to the facts of this case, we likewise conclude that Lalor’s
negligence was not “actively operating” at the time of the Kopfer accident and,
therefore, Lalor was not a substantial factor in producing Kopfer’s injuries.
Similar to the situation we confronted in Cefalu, “there does not exist an unbroken
sequence of events connecting the two accidents.” See id., ¶2. In fact, as in
Cefalu, “[t]hese factors that are present in this case, but which were not present in
the other multi-vehicle cases, clearly break the sequence of events connecting
[Lalor’s] accident to the [Kopfer] collision.” See id., ¶19.

¶16 More specifically, the Lalor and the Kopfer accidents were separated
by both time and space. The Kopfer accident happened roughly two hours after
the Lalor accident, and in fact, Lalor was no longer at the scene of the accident by
the time the Kopfer accident occurred. Additionally, while the Lalor and Kopfer
accidents occurred on the same roadway, the Kopfer accident occurred two miles
away from the Lalor accident.

¶17 The scene of the Lalor accident had also been secured by emergency
personnel by the time of the Kopfer accident. At the time of the Kopfer accident,

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No. 2022AP490

emergency personnel had shut down the highway, and barrels and other traffic
control devices were placed on the highway to alert drivers of the accident and
divert the traffic off the highway to an alternate route. “These steps taken to
secure the area substantially decreased the likelihood of another collision[.]” See
id., ¶17.

¶18 In an attempt to distinguish his case from Cefalu, Kopfer states that
we must take into account the statistics and the nature of the roadway as a limited
access highway where the speed limit is seventy miles per hour and therefore, the
two-mile separation can be traveled in under two minutes. We are unpersuaded.
First, general statistics about secondary accidents tell us nothing about the
specifics of the Lalor and Kopfer accidents and whether the Lalor accident was in
any way a cause of the Kopfer accident. Second, as we noted in Cefalu, the
emphasis on the physical separation of the accidents is whether “the subsequent
accident occurred when another vehicle physically collided with the scene of the
earlier accident.” See id., ¶16. Thus, because the Kopfer accident was not a
physical collision with the vehicles involved in the Lalor accident, we consider
them physically separated as we did in Cefalu.

¶19 Furthermore, as Lalor emphasizes, hundreds of other cars were able
to come to a complete stop prior to the Kopfer accident, thereby demonstrating
that the scene was secure, there was ample time to come to a complete and safe
stop, and hundreds of other drivers were aware of the roadway conditions that
morning. This was not, therefore, a case where drivers were unaware of the need
to stop until moments before impact. See id., ¶18.

¶20 In reaching this conclusion, we recognize, as we did in Cefalu, that
our supreme court has previously determined that negligence from a prior accident

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No. 2022AP490

was still actively operating and a cause of subsequent accidents in Johnson v.
Heintz (Johnson I), 61 Wis. 2d 585, 213 N.W.2d 85 (1973), Johnson v. Heintz
(Johnson II), 73 Wis. 2d 286, 243 N.W.2d 815 (1976), and Voigt v. Riesterer,
187 Wis. 2d 459, 523 N.W.2d 133 (Ct. App. 1994). However, unlike the Lalor
and Kopfer accidents here, the subsequent accidents in Johnson I, Johnson II,
and Voigt occurred in the same location as the initial accident and within such a
short time frame that the participants of the initial accident were still on the scene
and emergency personnel had yet to respond. See Johnson I, 61 Wis. 2d at 588;
Voigt, 187 Wis. 2d at 462. Thus, we conclude here, as we did in Cefalu, that
Johnson I, Johnson II, and Voigt are factually distinguishable and that these
factual distinctions compel a different result than that reached in Johnson I,
Johnson II, and Voigt.

¶21 Rather, as noted above, we conclude that Cefalu compels our
conclusion in this case as a result of its factual similarity, and under Cefalu, we
conclude that the only reasonable conclusion from the facts presented is that Lalor
was not a substantial factor in producing the Kopfer accident and, thus, is not a
cause in fact of Kopfer’s injuries.6 Accordingly, we conclude that Lalor was
entitled to judgment as a matter of law, and the circuit court properly granted
Lalor’s motion for summary judgment. Therefore, we affirm.

By the Court.—Order affirmed.

6
We note that Kopfer cites to several cases from other jurisdictions in support of his
argument. We decline to accept Kopfer’s invitation to apply those cases here. See State v.
Muckerheide, 2007 WI 5, ¶7, 298 Wis. 2d 553, 725 N.W.2d 930 (“Although a Wisconsin court
may consider case law from such other jurisdictions, obviously such case law is not binding
precedent in Wisconsin, and a Wisconsin court is not required to follow it.”).

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No. 2022AP490

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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