Mary Miceli-Krupka v. Proassurance Casualty Company

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.
April 2, 2026
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. 2024AP387 Cir. Ct. No. 2017CV1161

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

MARY MICELI-KRUPKA, JOHN B. KRUPKA, JOHN M. KRUPKA AND
ANNA M. KRUPKA,

PLAINTIFFS-RESPONDENTS,

HUMANA WISCONSIN HEALTH ORGANIZATION INSURANCE CORPORATION,

SUBROGATED DEFENDANT-RESPONDENT,

V.

PROASSURANCE CASUALTY COMPANY AND CHILDREN'S HOSPITAL OF
WISCONSIN, INC.,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Milwaukee
County: KASHOUA KRISTY YANG, Judge. Affirmed.

Before White, C.J., Colón, P.J., and Donald, J.
No. 2024AP387

¶1 WHITE, C.J. Proassurance Casualty Company and Children’s
Hospital of Wisconsin, Inc. (collectively CHW) appeal from the judgment for over
$8 million entered in favor of Mary Miceli-Krupka, John B. Krupka, Anna M.
Krupka, and John M. Krupka (collectively, the Krupka family) after a jury trial.
CHW argues that the judgment should be reversed and liability precluded on
public policy grounds. Additionally, CHW asserts that the Krupka family failed to
establish that CHW breached its duty of care in the negligence action. We
conclude that none of the public policy factors preclude CHW’s liability and that
there was sufficient evidence of a breach to sustain the jury’s verdict. We affirm.

BACKGROUND

¶2 Although CHW asserts that this judgment should be reversed
because it could have a detrimental effect on healthcare overall, the facts before us
are narrow and specific. On February 11, 2014, Kendra, a 14-year-old patient at
CHW’s Diabetes Clinic, was in an appointment with her mother, Vanessa, while
her 16-year-old sister, Jade, sat in the waiting room.1 At the same time, Mary was
trying to schedule a follow-up appointment for her 11-year-old son, John Michael,
after his appointment at the Diabetes Clinic; her 9-year-old daughter Anna sat
nearby. After a short exchange, Jade cursed at Mary and then physically attacked
her, causing injuries to her head and face.

¶3 In February 2017, the Krupka family filed an action against CHW
alleging negligence and related loss of society and companionship claims for

1
In the interest of privacy, we employ pseudonyms for the non-parties to this action: the
clinic patient, the accused attacker, and their mother. WIS. STAT. RULE 809.86 (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version.

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Mary’s husband, John, and their children, John Michael and Anna.2 CHW moved
for summary judgment to dismiss all claims, arguing that the Krupka family could
not prove ordinary negligence and recovery was precluded on public policy
grounds. The circuit court denied summary judgment.3

¶4 The case proceeded to a jury trial in October 2023. The Krupka
family presented testimony from multiple eyewitnesses of the attack; Alan Butler,
an expert in healthcare security; healthcare providers who treated Mary; Mary’s
husband and friends who knew Mary before and after the attack; and CHW
Security Services. We recite from the testimony relevant to the appeal, primarily
consisting of the eyewitnesses to the attack, Butler, and CHW security.

¶5 The Krupka family first called as a witness Chandra Broughton, who
was at the Diabetes Clinic with her own child and witnessed the attack.
Broughton testified that Mary was talking to the receptionist, Mary’s children
were sitting off to the side, and a young woman (Jade) was sitting behind Mary.
Broughton stated there was tension in the air, Mary’s son approached Mary and
whispered something, and Mary turned to address the young woman behind her,
asking “something along the lines of, do we have a problem.” Broughton testified
that the woman at the reception desk (Lisa Neilsen) addressed the young woman,
stating something to the effect of “we talked about this before, knock it off.”

2
Although the Krupka family also alleged a violation of the Safe Place statute, they
voluntarily dismissed that claim after the summary judgment hearing.
3
The Honorable Paul Van Grunsven presided over the summary judgment motion. The
Honorable David Borowski presided over a motion to compel discovery and an in camera review
of Kendra and Jade’s medical records for relevancy. The Honorable Kashoua Kristy Yang
presided over the jury trial and motions after verdict. We refer to all of the judges as the circuit
court.

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¶6 Broughton testified that Mary and the children were attempting to
finish scheduling an appointment and leave, and as Mary walked past the young
woman, the young woman said something to Mary and “then called her a fucking
bitch.” Mary turned to address her and told her that was inappropriate for the
setting. The young woman then “started attacking Mary … just started throwing
punches, trying to rip out her hair[.]” The attack continued, the young woman
“jumped on a children’s table, grabbed one of the chairs, and threw it at Mary.”
Broughton testified that she went to try to help Mary, who had slid to the floor,
and someone came from a patient room, grabbed the attacker by her hair, and
dragged her out of the clinic. Security and paramedics then arrived.

¶7 Lisa Neilsen, a medical assistant at the Diabetes Clinic testified that
she was familiar with Kendra from prior medical appointments, but did not know
Jade. Neilsen testified that she was at the reception desk helping Mary set a future
appointment. She noticed Mary was upset, and she stood up and told the young
woman (Jade) to stop and that her language was not appropriate. Neilsen stated
that Mary accepted her suggestion to set up the appointment by phone, Mary and
her children walked out the door to the elevator. Then the young woman said
something to Mary, Mary came back and shook her finger at the young woman,
and the young woman attacked her. Neilsen testified she tried to break up the
attack and then ran to the patient room where Kendra was being seen to get
Vanessa to stop her daughter. She did not recall if she had training on a flag in the
electronic records system about patients who should not be on the property.

¶8 John Michael’s testimony about the incident was similar. He
testified that he was waiting with his sister, and a young woman, looking very
angry, turned around and told him, “I’m going to get you.” He was afraid and he
told his mother what the young woman said, and the verbal interaction between

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Mary and Jade began. He saw Jade strike his mother on the head and attack her;
he took his sister’s hand and they hid away.

¶9 The Krupka family called Alan Butler as an expert witness; he
worked in healthcare security for about 35 years and was the administrative
director for public safety and security for a hospital system in Missouri. Butler
opined that based on his experience and the healthcare industry’s rules,
regulations, and resources, CHW and its security department did not follow the
“industry guidelines that would have led them to a successful conclusion as it
relate[d] to the safety of individuals around this incident.”

¶10 In developing his opinion and creating an expert report, Butler
reviewed excerpts of medical records from Kendra and Jade, incident reports, and
security risk assessments from CHW’s security department. He testified about the
timeline of disruptive behavior, and CHW’s response to it, in the years leading up
to the February 2014 attack.

¶11 Butler began with a CHW security incident report arising from Jade
visiting the Emergency Department on February 25, 2009, in which Vanessa was
unhappy with the care received. Butler testified that the report described the
family as demonstrating “aggressive behavior, inappropriate behavior, loud
verbiage, inappropriate swearing,” with Vanessa “cursing throughout the
incident.” Vanessa refused to sign the discharge paperwork, instead stealing
Jade’s chart out of the nurse’s hands and leaving. The security incident report
notes that “if [Vanessa] returns to CHW, she will be ‘flagged’ and Security/Sheriff
will be notified[.]”

¶12 Butler testified about multiple reports from Kendra’s appointments
at the Diabetes Clinic. On February 15, 2011, the front desk staff reported

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Vanessa was angry and verbally abusive toward Kendra in the waiting room,
which resulted in meeting with a social worker. On October 29, 2012, Kendra’s
physical assessment could not be completed because Vanessa and Jade, who
accompanied her, were yelling and swearing at the provider. Jade became
belligerent and swore at the provider when she was confronted for playing with
the exam room phone. The family was informed that Kendra would “be
discharged from clinic if [the] family continues to swear at providers” and it was
“recommended that [her] sister not attend [Kendra’s] clinic visits.” On February
13, 2013, Vanessa became very agitated with the doctor’s treatment plan for
Kendra, and demanded to know who the doctor was and insisted on looking at the
doctor’s identification, despite an introduction at the beginning.

¶13 Butler also testified about reports of two of Jade’s CHW visits. On
November 8, 2012, Jade was seen in the Emergency Department for a finger
injury; she reported that she received this injury punching her cousin in a fight at
school. On February 27, 2013, Jade had a Rheumatology Clinic appointment for
recurrent pain. In addition to physical health concerns, the clinic notes included
that she felt depressed and she had an evaluation at the Milwaukee County
Medical Health Complex after she threatened to hurt others at school.

¶14 Butler then turned to the incident reports from May 2013. On
May 8, Vanessa took Kendra to the Emergency Department for care related to her
diabetes; Vanessa became upset, yelled profane language, and complained that the
medical staff were not admitting Kendra to the hospital because she had “state
insurance,” and if she had better insurance, Kendra would get better care. Vanessa
refused further care for Kendra and attempted to pull Kendra’s IV out. The
medical staff noted that they felt unsafe, and a copious amount of profane
language was directed at them. One doctor noted that Jade was making

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inappropriate comments and flirtatious overtures each time the doctor saw them in
the room or hallway. The family left the emergency department “AMA” (against
medical advice) and without signing any paperwork. Butler opined that the
medical staff in the emergency department reporting feeling unsafe was
noteworthy because violence in healthcare, particularly in emergency departments,
was so common.

¶15 Butler testified that two days later, on May 10, Vanessa and Jade
were involved in an incident of “violence, disorderly conduct, and property
damage” at the emergency department, when the family again sought care for
Kendra. Butler stated that the CHW report described “[t]he family as a whole
[being] extremely belligerent” and “[s]ecurity was involved from the time the
patient walked in the door.” The security risk assessment of the encounter
described that staff observed the family knocking on patient doors and screaming
foul language. Security responded when one family member shut and barred a
door to a patient room in which Kendra was meeting with a nurse for care
instructions; the nurse could not exit and the family was laughing as security tried
to open the door. After the door was opened, security informed the family it had
to leave; the children were yelling and screaming swear words as they walked,
“disrupting the entire waiting room and terrifying the children and families” as the
family laughed.

¶16 Butler opined that the progression of events showed that the family
had been “building up” and also noted that even “the presence of uniformed
security” made no difference to Jade or Vanessa. Butler testified that after a
security risk assessment, CHW added an electronic flag to “pop[] up every time
[Jade, Vanessa, or Kendra] come to the hospital.” The record reflects that in
Kendra’s electronic medical chart, a “safety/security note” was added May 13,

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2013, stating “***HIGH RISK***” and that Vanessa and other family have a
history of “disorderly, disruptive and violent behaviors (Swearing, yelling,
intimidating and threatening) with staff.” The note included a Safety Plan listing
three steps: (1)“[e]ach time the patient presents- [i]mmediately inform Security
Services”; (2) “only the patient’s Mom is permitted to accompany the patient to
[c]linic [a]ppointments and [emergency department] [v]isits until further notice”;
and (3) Security Services was instructed to refer to the “latest Security Risk
Assessment on file for direction.”

¶17 Butler testified that as part of the risk assessment, CHW reviewed
Vanessa’s CCAP history, although he noted that deposition testimony from a
CHW security manager showed that their CCAP searches only looked for child
related crimes, sexual offender registry, or sex abuse.4 As part of his review,
Butler searched Vanessa’s CCAP records, based on her birthdate and her fairly
unique name, he found 18 separate entries before May 2013, and of those, 11
involved criminal charges. Butler testified that the criminal entries were “very
consistent with the behavior they were seeing inside the hospital: [p]roperty
destruction, restraining orders … inappropriate behavior.” Butler noted that two
restraining orders against Vanessa had been granted, barring her from her
children’s schools.

¶18 Butler testified that the security reports showed that on May 14,
2013, Vanessa met with CHW staff from Security Services, Patient Relations, the

4
“CCAP, which stands for Consolidated Court Automation Programs, makes certain
information about circuit court and appellate court cases available to the public.” State v.
Debrow, 2023 WI 54, ¶1 n.2, 408 Wis. 2d 178, 992 N.W.2d 114. Jeremy Phillips, a public safety
manager for CHW, testified on behalf of CHW Security Services; he confirmed that CHW’s
CCAP searches were looking for “child abuse or sex offenses.”

8
No. 2024AP387

Diabetes Clinic, and Social Work to discuss her and her family’s conduct on the
May 8 and 10 visits. Vanessa was advised that behaviors such as “[v]erbal
swearing/cussing; preventing free movement of staff; visitors touching staff
without their permission; and grabbing, hitting, or pushing” would not be
tolerated. Although CHW developed a behavioral contract, Vanessa was informed
she did not have to sign it and she chose not to sign it. Vanessa was also advised
that “the behavioral contract would still be in effect and placed in [Kendra’s]
medical record” whether she signed the contract or not. The contract provided that
only Vanessa could accompany Kendra to future visits at CHW. Vanessa was
warned that a failure to follow the behavioral contract would result in Vanessa
being removed from the property and not allowed back.

¶19 Butler testified that, in contrast, after the attack on Mary, the Safety
Plan was updated to require Security Services be notified in advance of Kendra’s
appointments. Further, Vanessa and Jade were banned from the CHW campus,
and the Safety Plan and flags on Kendra’s electronic medical record were updated,
noting the ban and that security should be called if either were present.

¶20 Butler opined that despite the Safety Plan, behavioral contract
language, and in-person meeting, CHW’s plan did not have “any teeth.” He
acknowledged that “[n]o hospital will refuse emergent care”; however, “hospitals
can sometimes refuse care inside of their clinics because it’s not necessarily life
threatening.” In this case, Kendra’s appointments at the Diabetes Clinic were
scheduled, not walk-in and, based on deposition testimony from CHW security
staff, the security department was able to access patient medical records and could
be alerted about future appointments. Yet, CHW did not exercise that option. He
described CHW’s approach as expectations, but no follow through. He stated this
was a system or process failure, because “there were processes in place to address

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this type of behavior” and CHW did not “follow their own process.” He
considered an outburst or a violent outburst foreseeable and common in healthcare
settings. While banning Vanessa and Jade was one way to deal with the safety
concerns they posed, he stated that it was not the only option.

¶21 At the close of the Krupka family’s evidence, CHW moved to
dismiss, arguing that the family had not met their burden to show a breach of the
standard of care. The circuit court denied CHW’s motion.

¶22 The jury found that CHW was negligent and its negligence was a
cause of Mary’s injuries. The jury found that Mary was not negligent, but that
Vanessa was negligent and her negligence was a cause of Mary’s injuries. The
jury apportioned negligence as 70% CHW, 30% Vanessa, and 0% Mary. The jury
awarded over $7 million to Mary for her past and future pain, suffering, disability,
and loss of earning capacity. The jury awarded over $1 million to John, John
Michael, and Anna for loss of society and companionship, and severe emotional
distress damages for the children for witnessing the attack.5

¶23 CHW filed motions after verdict, requesting judgment
notwithstanding the verdict, to change certain answers on the verdict pursuant to
WIS. STAT. § 805.14(5)(c), or to set aside the verdict and order a new trial. CHW
argued that liability for any negligence should be precluded on public policy

5
The jury’s award of damages was composed of the following: to Mary: $180,000 for
past loss of earning capacity; $1.5 million for past pain, suffering, and disability; $1,530,092 for
future health care expenses; $432,000 for future loss of earning capacity; and $3.4 million for
future pain, suffering, and disability; to John: $250,000 for loss of consortium; to John Michael:
$350,000 for loss of society and companionship; $93,600 for severe emotional distress; and to
Anna: $450,000 for loss of society and companionship; and $108,000 for severe emotional
distress.

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grounds. The circuit court denied all of the motions. As the arguments are similar
to the appeal issues, we do not discuss the court’s conclusions in detail. The court
entered an order of judgment. CHW now appeals.

DISCUSSION

¶24 On appeal, CHW makes two arguments.6 First, it asserts that public
policy considerations should preclude it from liability for the Krupka family’s
injuries. “[E]ven if the plaintiff is able to establish a duty of care and the other
elements of a negligence claim, the court may nonetheless determine that public
policy considerations preclude liability.” Gritzner v. Michael R., 2000 WI 68,
¶26, 235 Wis. 2d 781, 611 N.W.2d 906. Second, CHW argues that the Krupka
family failed to prove that it breached ordinary care; therefore, the negligence
claim itself should be reversed.

I. Public policy factors

¶25 There are six commonly cited public policy factors that may
preclude liability, even if the elements of negligence are proven. See Tesar v.
Anderson, 2010 WI App 116, ¶13, 329 Wis. 2d 240, 789 N.W.2d 351 (noting that
“[t]his list is not exclusive”). The factors include (1) the injury “is too remote
from the negligence,” (2) the injury “is too wholly out of proportion” to the
defendant’s culpability, (3) “in retrospect, it appears too highly extraordinary” that
the defendant’s negligence should have resulted in the harm; (4) “allowing

6
On appeal, CHW does not address all of the motions it raised to the circuit court:
motion to dismiss at close of plaintiffs’ evidence, directed verdict, judgment notwithstanding the
verdict, to change the verdict answers, or for a new trial. We consider these issues abandoned
and do not discuss them further.

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recovery would place too unreasonable a burden” on the defendant, (5) “allowing
recovery would be too likely to open the way for fraudulent claims,” or
(6) “allowing recovery would enter a field that has no sensible or just stopping
point.” Gritzner, 235 Wis. 2d 781, ¶27. CHW argues that the first, second, third,
fourth, and sixth factors apply.

A. First public policy factor: remoteness

¶26 The first public policy factor looks at whether the injury was too
remote from the alleged negligence; it is a restatement of “the old chain of
causation test” and “revives the intervening or superseding cause doctrine[.]”
Cefalu v. Continental W. Ins. Co., 2005 WI App 187, ¶¶20-21, 285 Wis. 2d 766,
703 N.W.2d 743. CHW argues that the injuries from the February 2014 attack
were “too remote” from CHW’s negligence because they would not have occurred
without intervening or superseding intentional acts by Jade. Further, the injuries
were too remote because the last security incident in the record was nine months
earlier, in May 2013.

¶27 To understand how the remoteness or chain of causation test would
apply, we begin with a case illustration. In Kidd v. Allaway, 2011 WI App 161,
338 Wis. 2d 129, 807 N.W.2d 700, parents “lost their teenage daughter in a
terrible head-on collision during which she was killed instantly, ejected from the
car, landed on the road and was hit and dragged by not one, but two, vehicles.”
Id., ¶16. The parents sued Allaway, the driver of the second vehicle, under a
theory of negligent mutilation, claiming severe emotional distress and resulting
physical injury as damages. Id. This court concluded that “the death of the
Kidds’ daughter and the injury caused by the collision, ejection and impact by the
first car were all wholly unrelated to Allaway’s alleged negligence,” which arose

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from driving after drinking and driving too fast under the conditions. Id., ¶19.
Therefore, the “indirect and broken chain of causation” between the second
driver’s alleged negligence and the parents’ injuries meant that the first public
policy consideration would preclude liability—the injuries were too remote. Id.,
¶¶16, 19.

¶28 When we consider the entire sequence of events between CHW’s
alleged negligence and the Krupka family’s injuries, we conclude that the chain of
causation is unbroken. CHW’s negligence arises from foreseeing harm from
Vanessa and Jade’s disruptive behavior, developing safety and security plans to
manage that risk, and then not following through with actions a reasonable clinic
or healthcare system would take. Unlike the second driver in Kidd, whose
negligence was an intervening cause because it occurred after the initial car
accident and the first dragging, Jade’s actions were not an intervening cause to
CHW’s negligence.

¶29 CHW argues that Jade’s attack was not in the line of causation
because it was fundamentally different than the previous disruptive behavior
exhibited in the security reports. It asserts that Jade had been inappropriate, but
not violent, which challenges the foreseeability of this harm. The foreseeability
test does not ask whether the allegedly negligent person could predict the exact
injury and damages. Morden v. Continental AG, 2000 WI 51, ¶47, 235 Wis. 2d
325, 611 N.W.2d 659. “[I]t is sufficient to show that ‘some injury could
reasonably have been foreseen.’” Id. (citation omitted).

¶30 Further, we reject CHW’s attempt to characterize the foreseeable
risk as inappropriate and verbal, not violent and physical. While there is no record
that Kendra’s family physically assaulted anyone on previous visits, CHW’s

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security risk assessment led to the electronic “HIGH RISK” flag that the family
had a history of “disorderly, disruptive and violent behaviors (Swearing, yelling,
intimidating and threatening) with staff.” In the behavioral contract meeting,
Vanessa was warned by CHW Security Services not only about a prohibition on
verbal disruptions, but she was informed that preventing the free movement of
staff, touching staff, “grabbing, hitting, or pushing” would not be tolerated.
CHW’s security incident reports described foreseeable risks that included physical
violence. Therefore, we do not consider Mary’s injuries too remote on the basis
that the conduct was different.

¶31 CHW also argues that the February 2014 attack was too remote
because the last security incident in the record was nine months earlier, in May
2013. We disagree. Butler’s testimony on the placement of the “HIGH RISK”
electronic flag in Kendra’s electronic medical chart after the disruptions in May
2013 was not disputed. There is no evidence that the Safety Plan and behavioral
contract created by CHW were withdrawn or changed. With a safety concern
continuously documented in the record, there is no break in the chain of causation
from the risk of foreseeable harm CHW recognized in 2013 until the attack.

¶32 CHW argues that Wisconsin courts have found mere hours from
negligence too remote to hold a defendant liable. In Conroy v. Marquette Univ.,
220 Wis. 2d 81, 582 N.W.2d 126 (Ct. App. 1998), Conroy, a student employed by
university housing, was assigned to oversee dormitory checkout for an expelled
student required to leave housing. Id. at 84-85. The student refused to cooperate,
displayed a steak knife, and threatened Conroy, who notified her supervisor. Id. at
85. The next night, at an off-campus nightclub, Conroy saw the expelled student,
who then brutally attacked her with a broken bottle after they both left the club,
resulting in facial injuries. Id.

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¶33 Conroy alleged the university was negligent for directing her to
check out the student without informing her of the basis of expulsion—
“belligerent, although not physically assaultive or threatening, behavior,” and then
permitting her to continue the checkout after the student became uncooperative.
Id. at 90-91. Although the jury in Conroy found the university negligent, this
court concluded that the injuries were too remote from the university’s negligence
to hold it liable. Id. at 88. Our considerations in support of applying the
remoteness public policy were that the injuries occurred 30 hours after the
checkout, the incident took place at a location removed from the dormitory and
outside of the university’s control, and Conroy’s visit to the nightclub was not
connected to her job duties. Id. at 88-89.

¶34 We are not persuaded that Conroy places a time limit upon which a
defendant’s negligence matters. Under those facts, the distance in space and time
broke the chain of causation from the university’s negligence. Here, the time
between medical visits to the CHW campus, which was under CHW’s control, did
not break the chain.

B. Second public policy factor: proportionality to culpability

¶35 The second public policy factor assesses whether the Krupka
family’s injuries are wholly out of proportion to CHW’s culpability. This
consideration contemplates “the discrepancy between the degree of negligence and
the degree of injury[.]” Fandrey ex rel. Connell v. American Fam. Mut. Ins. Co.,

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2004 WI 62, ¶15 n.12, 272 Wis. 2d 46, 680 N.W.2d 345 (citation omitted). CHW
argues that its liability is disproportionate to its culpability.7

¶36 Case law again illustrates this factor. In Kidd, discussed above, our
supreme court rejected the parents’ attempt to hold the second driver “fully
responsible” for the mutilation of their daughter’s body, along with the parents’
resulting emotional distress and physical injuries, based on this second public
policy factor as well as the first factor. Id., 338 Wis. 2d 129, ¶17. The court
concluded that holding the second driver’s responsible for the injuries would be
out of proportion to his culpability. Id.

¶37 Further, in Fandrey, our supreme court determined that “recovery …
would be too out of proportion with the culpability” of homeowners whose dog bit
a child. Id., 272 Wis. 2d 46, ¶¶3, 34. There, the homeowners left their dog at
home, unleashed or caged, in their unlocked house, when a friend and her three-
year-old daughter brought something to the house uninvited, entered the unlocked
door, and while the mother wrote a note, the child was bitten by the dog. Id., ¶2.
Our supreme court concluded that the only thing the homeowners did wrong was
to leave their door unlocked. Id., ¶34. Therefore, the child’s injuries were out of
proportion to the homeowners’ minor negligence. Id.

¶38 CHW argues that the Krupka family’s claims are premised on CHW
not doing enough to prevent Jade’s attack on Mary. We consider this framing
misleading. The issue is not failing to be perfect, but failing to respond reasonably
to a foreseeable risk. As we discussed under the first factor, CHW saw a risk of

7
We note that CHW does not argue that the $7 million damages award for Mary’s
injuries were out of proportion to its culpability. We therefore do not discuss damages.

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foreseeable harm from Vanessa and Jade’s conduct—the security reports describe
not only disorderly disturbances and cursing, but labeling the family as having a
history of “violent behaviors” and warning Vanessa against “grabbing, hitting, or
pushing.” While in Kidd, it was out of proportion to hold the second driver fully
responsible for the parents’ injuries when there was another car accident and
driver involved in their daughter’s death, and in Fandrey, it was out of proportion
to hold the homeowners liable for a dog bite when their only negligence was
leaving their door unlocked, CHW’s negligence is not out of proportion to Mary’s
injuries.

¶39 CHW argues that even if Vanessa had signed the behavioral
contract, it would not have guaranteed Mary’s safety. The issue here is not
holding CHW liable for failing to guarantee safety. CHW was the proprietor of
the business inviting the public, it knew of a safety risk—knowledge that other
guests such as Mary and her children could not have—and it did not take
reasonable steps to manage that risk.8 A business proprietor is subject to liability

8
We note that the jury was instructed on CHW’s duty of care as a proprietor of a
business open to the public. Wisconsin recognizes that business proprietors must exercise
reasonable care to protect individuals visiting or using the business from injuries from foreseeable
causes. Pfeifer v. Standard Gateway Theater, 259 Wis. 333, 336, 48 N.W.2d 505 (1951).
Whether the proprietor has taken sufficient precautions to protect individuals on the premises is a
question for the jury. Id. Here, the jury was instructed on the duty of CHW to protect a patron
from injury caused by a third-party, WIS JI—CIVIL 8045. The instruction read to the jury stated:

(continued)

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if members of the public are harmed while on premises due to a third-party’s
accidental, negligent, or intentionally harmful acts “if the proprietor by the
exercise of reasonable care could have discovered” these acts and could have
protected the patron “by controlling the conduct of the third persons, or by giving
a warning adequate to enable them to avoid harm.” Weihert v. Piccione, 273 Wis.
448, 456, 78 N.W.2d 757 (1956). With this obligation to patrons and duty of care
in mind, we do not consider CHW’s negligence to be out of proportion to its
culpability.

C. Third public policy factor: Too highly extraordinary

¶40 Addressing the third factor that “in retrospect it appears too highly
extraordinary that the negligence should have brought about the harm,” Nichols v.
Progressive N. Ins. Co., 2008 WI 20, ¶24, 308 Wis. 2d 17, 746 N.W.2d 220
(citation omitted), CHW argues that the Krupka family’s harm should be
considered too wholly extraordinary because Jade’s conduct was unpredictable,
“erratic and irrational.” See Estates of Paswaters v. American Fam. Mut. Ins.
Co., 2004 WI App 233, ¶1, 277 Wis. 2d 549, 692 N.W.2d 299 (“Good social

As the proprietor of a medical [clinic] who opens it to the public
for its business purposes, Children’s Hospital has a duty to use
ordinary care to protect members of the public while on the
premises from harm caused to them by the accidental, negligent,
or intentional acts of third persons. If by using ordinary care, it
could have discovered that the acts were being done or were
about to be done, and it could have protected Mrs. Miceli-
Krupka by controlling the conduct of the third person, or by
giving a warning adequate to enable Mrs. Miceli-Krupka to
avoid harm. However, Children’s Hospital is not required to
guarantee the safety of patrons against injuries inflicted by other
patrons on the premises.

18
No. 2024AP387

policy does not allow us to impose liability on individuals who fail to predict
erratic and irrational human behavior.”).

¶41 Turning to case law, in Conroy, we concluded that even if we
assumed the university’s negligence in directing Conroy to check out an expelled
student without informing her of the cause of expulsion, it was too highly
extraordinary that its negligence resulted in such “drastic consequences” as the
harm suffered by Conroy. Id., 220 Wis. 2d at 90-91. We concluded that “[n]o one
could have reasonably expected that an ill-tempered student, who had acted
inappropriately but had not exhibited violent tendencies, would brutally assault
another student with a broken bottle off-campus thirty hours later, in revenge for
her expulsion.” Id. at 91. Nothing put the university on notice that the expelled
student “would likely physically attack” Conroy or that she would seek revenge on
Conroy. Id.

¶42 In Paswaters, we concluded that a woman’s murder by her boyfriend
was too highly extraordinary of a result to hold liable her boyfriend’s brother, who
arranged their meeting. Id., 277 Wis. 2d 549, ¶¶1, 15. The brother allowed the
boyfriend to secretly eavesdrop on a meeting the brother arranged with the
girlfriend to discuss romantic difficulties between the couple and the brother did
not warn the girlfriend that her boyfriend was present or that he “had expressed a
desire to kill her earlier that evening.” Id., ¶1. We concluded that the brother
should not shoulder “the unreasonable burden of predicting human nature”
because he knew the boyfriend (his brother) as a non-violent person, there were no
allegations of domestic violence, and the boyfriend’s “characteristic and harmless
way of expressing anger” included expressing a desire to kill others or himself.
Id., ¶15. The brother felt he was trying to allow the couple to resolve relationship
issues, not set up the girlfriend so her boyfriend could “end the relationship with

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No. 2024AP387

fatal violence.” Id., ¶16. This court concluded that the shooting death was too
highly extraordinary to hold the brother liable because he knew his brother often
“shot his mouth off” and did not expect any physical violence, much less a
shooting. Id., ¶¶5, 15-16.

¶43 CHW argues that Jade’s conduct was unexpected and irrational.9 As
we discussed in relation to the first two factors, CHW’s internal security reports
were concerned about the family exhibiting “disorderly, disruptive and violent
behaviors” as well as touching staff or restricting staff’s movement and “grabbing,
hitting, or pushing[.]” CHW developed a safety plan that involved security in
future appointments and barred Jade from attending clinic appointments. Unlike
Conroy, CHW was on notice that Jade was disruptive and disorderly at CHW
facilities. Unlike Paswaters, CHW had personal knowledge that Jade and Vanessa
were disruptive, had terrified a waiting room of children and families, and had
trapped a staff member in a patient room and laughed while security attempted to
respond. Having Jade, a previously disruptive visitor to the clinic with known
security concerns, become physically violent cannot be termed “highly
extraordinary.” See Tesar, 329 Wis. 2d 240, ¶17.

9
CHW also argues that holding it liable for Mary’s injuries would be too extraordinary
because the attack came out of nowhere. Although the record reflects that Broughton, who
witnessed the attack, described it as a surprise, and Mary testified that she was not expecting
anything like that, there were signs of concern even that day. Broughton also testified that there
was “tension in the air” before anything happened and that she heard Neilsen tell Jade something
to the effect of “we talked about this before, knock it off.” John Michael testified that before he
involved his mother, he was frightened by Jade’s angry expression and warning words that she
would “get you.” Whether Jade’s behavior was unexpected in the context of that day or over five
years of previous security incidents, we are not persuaded that it was too highly extraordinary to
hold CHW liable for the Krupka family’s harms.

20
No. 2024AP387

D. Fourth public policy factor: unreasonable burden

¶44 The fourth public policy factor we consider is whether “permitting
recovery would place too unreasonable a burden” on the defendant. Hoida, Inc. v.
M & I Midstate Bank, 2006 WI 69, ¶43, 291 Wis. 2d 283, 717 N.W.2d 17. CHW
argues that allowing recovery under these facts would place an unreasonable
burden on healthcare providers to attempt to avoid liability.

¶45 Returning to the homeowners with the dog who bit a child in
Fandrey, our supreme court concluded that it would be an unreasonable burden on
homeowners to be required to do “more than keep their dogs in the house when
the homeowners are away[.]” Id., 272 Wis. 2d 46, ¶35. If liability were imposed,
there would be “clearly unreasonable consequences,” such as dog owners feeling
“forced, prior to leaving their homes, to kennel their dogs, muzzle them, or lock
them in cages” to avoid liability. Id.

¶46 Similarly, in Hoida, our supreme court concluded that imposing
liability would place too unreasonable a burden on a title company, which acted
solely at the direction of a bank, for the disbursal of funds under a construction
loan where the general contractor and owner of the property fraudulently
misappropriated more than $650,000 in construction funds. Id., 291 Wis. 2d 283,
¶¶1, 43. Hoida, a subcontractor who incurred losses working on the project, sued
the bank and title company, arguing they were negligent for failing to verify the
work in progress before disbursing funds. Id., ¶1. The court concluded that
Hoida’s claim would require the title company to identify and track all
subcontractors, services, and goods, then assess whether disbursements are
appropriate under the project progress, and collect lien waivers. Id., ¶43. Not
only was this “never-ending task” not the title company’s job, Hoida did not allege

21
No. 2024AP387

that the title company had the special expertise to evaluate construction progress.
Id. Therefore, Hoida’s claim was precluded by the unreasonable burden that
holding it liable would bring. Id.

¶47 CHW argues that the Krupka family’s claims were based on a
nebulous standard of care. It asserts that Butler’s testimony supports that banning
Kendra and her family or a structured security response were the only ways CHW
could have satisfied the standard of care the Krupka family posits. We reject this
premise. The record reflects that Butler opined that if CHW had followed
healthcare security industry guidelines, it could have avoided the situation. In
Fandrey, our supreme court identified that imposing liability would impose
unreasonable obligations on dog owners to keep their dogs muzzled and caged
when home alone. In Hoida, the court identified that liability would create a
never-ending task with obligations not alleged to be within a title company’s
skillset or function. Here, it does not put too unreasonable a burden on CHW to
carry out the security and safety plans it creates and to take reasonable actions to
respond to known safety concerns.

E. Sixth public policy factor: a field with no stopping point

¶48 The sixth public policy factor considered is whether liability would
“unnecessarily allow the law of negligence to enter a field that has no sensible or
just stopping point.” Rockweit by Donohue v. Senecal, 197 Wis. 2d 409, 428, 541
N.W.2d 742 (1995). CHW argues that allowing liability under these facts would

22
No. 2024AP387

open the floodgates to claims of all kinds.10 It asks the court to consider “wider
societal implications of liability” to not allow this set of facts to “ripple out to
cause disproportionate burdens and costs that the greater public will bear.”

¶49 Case law illustrates the concerns raised under the sixth public policy
factor. The Fandrey court determined that there was no evidence of express or
implied consent for the mother and her three-year-old daughter to enter her
friend’s unlocked home before the homeowner’s dog bit her daughter. Id., 272
Wis. 2d 46, ¶36. The court concluded that imposing liability on homeowners who
left a dog in an unlocked home and then that dog bit a person who entered the
house without consent would “enter a field that has no sensible or just stopping
point.” Id. If liability could be imposed for a dog bite to a non-consensual visitor,
then a homeowner would risk having liability to a burglar for a dog bite, which
was not sensible or just. Id., ¶39. In contrast, holding CHW liable for its failure
to protect patrons from a risk it recognized and foresaw does not mean that all
healthcare providers would face unjust, or unreasonable liability.

¶50 CHW argues that the verdict and circuit court’s post-verdict
decision, denying that public policy precludes liability, failed to give meaningful
guidance to future healthcare providers on when they must ban disruptive patients

10
There were two amici briefs submitted by other healthcare-related organizations that
also argue that allowing recovery in this case would hurt healthcare providers by increasing their
liability. CHW also argues that liability here could increase the need for healthcare spending on
security, which could then impact patient care. We appreciate these concerns, but consider our
decision to be narrowly tailored to the specific facts presented. As this court has noted
previously, “[n]o future Wisconsin court is required or encouraged to venture into cases which
shock the conscience of society by anything we have written here. Public policy is decided on a
case-by-case basis and we only decide the issue before us.” Tesar v. Anderson, 2010 WI App
116, ¶35, 329 Wis. 2d 240, 789 N.W.2d 351.

23
No. 2024AP387

and families to avoid liability. It contends there was no clear line before the
violent attack at which CHW was negligent by not banning Jade or Vanessa.11

¶51 We are not persuaded that the liability question is reduced to when
to ban a patient. From the briefing and evidence at trial, disruptive and unsafe
behavior is not uncommon in healthcare and certain regulations require care be
offered in emergencies. CHW, like any reasonable hospital system, has a security
services department, with staff who proactively and reactively deal with security
incidents. The record also reflects that local law enforcement is called in for
certain events. The imposition of liability here arises from these facts and CHW’s
own unreasonable actions and omissions, not from a broad imposition of liability
to healthcare providers for any conduct that may arise on their premises regardless
of their actions.

¶52 We consider another case in which our supreme court concluded that
the sixth public policy factor was “of greatest concern.” Hornback v. Archdiocese
of Milwaukee, 2008 WI 98, ¶53, 313 Wis. 2d 294, 752 N.W.2d 862. Examining
the differences in foreseeable risk makes it clear that imposing liability on CHW
does not allow negligence to enter a field with no sensible or just stopping point.
In Hornback, victims of a Catholic school teacher in Kentucky who sexually
abused students attempted to hold the Archdiocese of Milwaukee and Diocese of
Madison liable because those bodies were aware the teacher had previously
sexually abused students at Catholic schools while teaching in the Milwaukee and
Madison areas. Id., ¶2. The victims brought a claim based on negligent failure to

11
After the attack, CHW argues it was clear, and the record reflects, that it did ban Jade
and Vanessa from the CHW campus.

24
No. 2024AP387

warn, premised on a church employer’s duty to “seek out, find, and warn future
employers of sexually dangerous former employees[.]” Id., ¶45. The church
bodies warned that if the claim were allowed to proceed, it would create “a
slippery slope” that would “requir[e] employers to warn all prospective employers
about any bad acts of ex-employees.” Id., ¶53.

¶53 The Hornback claim of negligent failure to warn was not based on a
claim that either diocese withheld information about the abusive teacher or refused
to provide an honest disclosure. Instead, it created a duty for a church employer to
seek out other Catholic school systems to proactively warn them about the
teacher’s past abusive acts. In contrast, CHW is being held liable for its ordinary
negligence in responding to a foreseen risk, not for failing to seek out, find and
warn others about a danger it recognized.

¶54 Further, the Hornback claim argued that “unforeseeable third
parties” should be warned about the abusive teacher, with a potential need to warn
“thousands of individuals and organizations,” in dioceses, parochial school
systems, and parents across the country. Id., ¶¶26, 57. This was an “open-ended
and ill-defined sweeping claim” that would have no sensible stopping point. Id.,
¶60. In contrast, the Krupka family’s claim was narrowly defined, and premised
on harm to Mary and accompanying harms to her spouse and children. We
conclude that allowing the Krupka family’s recovery does not enter a field with no
just stopping point.

F. Public policy factor conclusions

¶55 A Wisconsin court is to preclude liability only in “cases so extreme
that it would shock the conscience of society to impose liability.” Fandrey, 272

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No. 2024AP387

Wis. 2d 46, ¶15 (citation omitted). We conclude that none of the public policy
factors apply to preclude CHW’s liability for the Krupka family’s injuries.

II. Negligence

¶56 We now turn to CHW’s second issue, namely that the Krupka family
failed to prove a breach of its duty of ordinary care; therefore, the claim of
negligence must fail. A plaintiff establishes a negligence claim by proving four
elements: (1) the defendant’s duty of care, (2) “a breach of that duty of care (3) a
causal connection between the defendant’s breach of the duty of care and the
plaintiff’s injury, and (4) actual loss or damage resulting from the injury.”
Gritzner, 235 Wis. 2d 781, ¶19.

¶57 CHW argues that there is no credible evidence that it committed a
breach of ordinary care, asserting that the jury’s verdict was based on
impermissible speculation. A claim that no credible evidence of a breach was
presented and upon which the jury could rely challenges the sufficiency of the
evidence to support the verdict. “Our review of a jury’s verdict is narrow.”
Morden, 235 Wis. 2d 325, ¶38. We will “sustain a jury verdict if there is any
credible evidence to support it.” Id. We must “consider the evidence from a
viewpoint most favorable” to the verdict. Coryell v. Conn, 88 Wis. 2d 310, 317,
276 N.W.2d 723 (1979). “The obligation is to search for credible evidence that
will sustain the verdict, not for evidence to sustain a verdict the jury could have
but did not reach.” Id. at 317-18.

¶58 CHW asserts that the Krupka family failed to present expert medical
or clinical testimony to support that a reasonable hospital would have banned Jade,
Vanessa, and Kendra prior to Jade’s attack of Mary. CHW argues that Butler
testified that CHW could have prevented the attack by banning Jade or having a

26
No. 2024AP387

structured security response when Kendra had appointments. CHW contends that
in Butler’s cross-examination testimony, he acknowledged that security alone does
not make the decision to ban a patient or family, but it must be a joint decision for
the risk, safety, legal and clinical departments. CHW contends that without expert
medical testimony on the reasonableness of banning Kendra and family, the jury’s
finding had to be speculative.

¶59 Expert testimony may be “required to assist the court or jury to
understand complex issues,” particularly in matters of certain medical-related
claims. Cramer v. Theda Clark Mem’l Hosp., 45 Wis. 2d 147, 151, 172 N.W.2d
427 (1969). However, even allegations related to medical care do not require
expert testimony if the matters may be “judged against the care a reasonable and
ordinary lay person would expect a hospital … to give under the circumstances.”
Id. at 154.

¶60 CHW’s premise that expert medical testimony was required to prove
a breach because banning Kendra’s family was the only way to combat the risk is
not supported by the record. Butler opined that CHW’s conduct was unreasonable
because it recognized a safety issue and then failed to take steps to manage that
risk. The record reflects that Butler did not opine that banning Kendra was the
only option a reasonable hospital could have taken.12 Butler acknowledged that

12
It is less clear whether CHW is arguing that a “structured security” initiative or
response would also require expert medical testimony. To the extent that we interpret CHW as
asserting that Butler’s expert opinion was that CHW had to have Security Services respond to
every appointment Kendra made, our examination of the record shows that Butler opined that was
an option. He discussed that CHW did not appear to follow the Safety Plan it designed that called
for Security Services to be notified when Kendra checked in for an appointment. CHW does not
appear to argue that expert medical testimony would be needed to aid the jury in understanding
scientific or specialized information as it relates to having Security Services be alerted about
appointments.

27
No. 2024AP387

emergency care had different standards than clinics, he separated Kendra’s clinical
needs from the conduct of her mother and sister, and he discussed how CHW did
not utilize any of the safety and security processes available. We conclude that
establishing the breach of ordinary care under these circumstances does not
require specialized, scientific, or technical knowledge such that expert medical
testimony would be required. See Payne v. Milwaukee Sanitarium Found., Inc.,
81 Wis. 2d 264, 276, 260 N.W.2d 386 (1977) (stating that “[e]xpert testimony
should be adduced concerning those matters involving special knowledge or skill
or experience on subjects which are not within the realm of the ordinary
experience of mankind, and which require special learning, study or experience”).

¶61 There was ample evidence upon which the jury could find that CHW
was negligent without needing expert medical testimony. When we both consider
the evidence in the light most favorable to the jury’s findings and search for
credible evidence that will sustain the verdict, we conclude that the jury had ample
evidence upon which to find CHW breached its duty, without relying on
speculation. See Coryell, 88 Wis. 2d at 315, 317-18. Butler’s testimony and the
CHW security incident reports provided evidence of recurrent disruptive behavior
when Kendra’s family sought care at CHW over the course of five years. CHW
created a Safety Plan and behavioral contract for Kendra to continue receiving
care at CHW with or without her mother or sister’s presence. The Safety Plan
allowed only Vanessa to accompany Kendra to appointments until further notice,
yet Jade was present that day. Although the Safety Plan stated that Security

28
No. 2024AP387

Services should be contacted when Kendra checked in, there is no evidence that
Security Services was notified when the family arrived.13

¶62 CHW then argues that Jade’s attack on Mary was an erratic,
irrational act by Jade, one that constitutes an unforeseeable harm. It argues there
was no evidence presented that a reasonable hospital under these circumstances
would have recognized that allowing Jade to sit in the waiting room during
Kendra’s appointment created an unreasonable risk of harm. Foreseeability asks
whether “the defendant, as a reasonably prudent person,” should “have anticipated
that the act would probably cause damage to another[.]” Osborne v. Montgomery,
203 Wis. 223, 231, 234 N.W. 372 (1931). Under these facts, a reasonably prudent
hospital would have recognized a risk of harm from Jade’s presence in the waiting
room, in light of the record of security incident reports demonstrating disruptive
behavior by Jade and Vanessa from 2009 to 2013, the warnings to Vanessa that
Kendra’s care could be terminated for the family’s actions, and the warning flag
for the Safety Plan on Kendra’s electronic medical chart. CHW argues that no
new security incidents had happened after May 2013; however, the record does
not reflect that the Safety Plan was removed or modified.14 “[I]f there is any
credible evidence, under any reasonable view, that leads to an inference

13
CHW’s decision after the attack to require advanced notification to Security Services
of Kendra’s clinic appointments and to ban Vanessa and Jade from the CHW campus shows that,
as a practical matter, CHW had that option before the attack.
14
CHW further argues that the Krupka family failed to present evidence that Kendra’s
healthcare provider would have enforced the Safety Plan if asked or that if Security Services had
been notified, that there was sufficient staff to reach the Diabetes Clinic. We reject these attempts
on appeal to reframe CHW’s duty and the evidence required to show breach. Our “obligation is
to search for credible evidence that will sustain the verdict, not evidence to sustain a verdict the
jury could have but did not reach.” Coryell v. Conn, 88 Wis. 2d 310, 317-18, 276 N.W.2d 723
(1979).

29
No. 2024AP387

supporting the jury’s finding,” we must sustain the verdict. Morden, 235 Wis. 2d
325, ¶38. We conclude that CHW’s challenge to the sufficiency of the evidence
fails.

CONCLUSION

¶63 For the reasons discussed above, we conclude that none of the public
policy factors preclude CHW’s liability to the Krupka family for their injuries.
We also conclude that there was sufficient evidence to support the jury’s finding
of a breach of ordinary care and we affirm the jury’s finding of negligence.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

30