The sole issue on this appeal relates to the element of damages: whether the present fear or phobia that the plaintiff will develop cancer in the future is compensable.
Negligence is conceded. The sole question then is one of causation. The long-standing rule on whether a particular claim of damages is compensable is:
". . . negligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that the defendant is liable for the plaintiff's injuries. The determination to not impose liability [because of remoteness of cause] in instances where a negligent act has been committed and the act is a `substantial
Applying this rule, we have held a defendant not liable for injuries sustained solely by fear for another's safety without physical impact.
In these cases these public policy considerations are regarded as an element of the legal cause, although not
In this case, although there is no question about there being in fact a fear of future cancer, the claim of damages (by way of cancer) is so remote and is so out of proportion to the culpability of the tort-feasor that, as a matter of public policy, we conclude that the defendants are not to be held liable for this element of damages.
The three cases cited by plaintiff from other jurisdictions
Since we have ruled here that the award of damages included a sum for the plaintiff's present fear of future cancer which we have found not compensable, we must reverse the judgment and remand for a retrial on the issue of damages. Appellants seek a new trial on all issues. While various evidentiary rulings during the conduct of the trial are challenged, they appear to relate primarily to the manner in which the plaintiff sought to establish the existence of the present fear of a future harm. With our holding here based on the public policy considerations involved in disallowing recovery for her present anxiety as to a future consequence, we find no reason or basis for ordering a new trial on other than the issue of damages. Therefore, the judgment is set aside
By the Court.—Judgment affirmed in part; reversed in part; and cause remanded for proceedings not inconsistent with this opinion.
ROBERT W. HANSEN, J. (concurring).
The writer joins the majority in holding, on the facts of this case, that as a matter of public policy plaintiff's fear as to a future imagined consequence, having no reasonable basis, was not a recoverable element of damages in this case. The writer agrees that the long-standing rule on this point in this state is that "... [n]egligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that the defendant is liable for the plaintiff's injuries. The determination to not impose liability in instances where a negligent act has been committed and the act is a `substantial factor' in causing the injury rests upon considerations of public policy."
For her contrary contention that the reality of the fear, not any reasonable basis for it, is all that ought be required for compensability, plaintiff relies upon three out-of-state decisions. One, a state court holding in an eastern state, does appear to hold that an entirely mistaken present fear of future harm is a compensable element of damages.
The writer would find the applicable rule of law in this state and elsewhere to be that, assuming negligence and causation, a fear of a future consequence is not compensable as an element of damages in a negligence action if there is established no `reasonable basis for such fear. This court has said that recovery may be denied on public policy grounds where the "... injury is too remote from the negligence or too `wholly out of proportion to the culpability of the negligent tort-feasor' ..."
What the majority opinion appears to approach as an individuated response to a particular fact situation, the writer sees as the application of a generally accepted rule of law to the facts of this case. That rule holds that, as a matter of law based upon public policy considerations, a present fear as to a future harm is not a compensable element of damages if there is no reasonable basis established for the fear being entertained and no increased possibility of the consequence feared developing as a result of the injury sustained.
The following opinion was filed June 28, 1974.
PER CURIAM.(on motion for rehearing).
The opinion correctly states the law of this state. It represents no new departure from the position of Colla v. Mandella (1957), 1 Wis.2d 594, 85 N.W.2d 345, and Hass v. Chicago & North Western Ry. Co. (1970), 48 Wis.2d 321, 179 N.W.2d 885. Those cases hold, consistently with established negligence law of this court, that foreseeability of the particular harm is not an element of the determination of negligence. Although a specific injury may not be foreseen, subject to possible policy considerations, we will find liability if there is an unbroken chain of causation from the negligent act to the injury sustained and if the negligence is a substantial factor.
Even though there exists such an unbroken chain of causation, we will not find liability if the court concludes
Some of the various public policy factors that may be appropriately invoked to deny liability even in the face of an unbroken chain of causation were listed in Colla v. Mandella, supra, at 599:
"[T]he injury is  too remote from the negligence or  too `wholly out of proportion to the culpability of the negligent tort-feasor,' or  in retrospect it appears too highly extraordinary that the negligence should have brought about the harm, or  because allowance of recovery would place too unreasonable a burden upon users of the highway, or  be too likely to open the way to fraudulent claims, or  would `enter a field that has no sensible or just stopping point."
The policy factor relied upon in this particular case is analogous to number 4, because allowance of recovery would place too unreasonable a burden upon doctors and physicians.
There is no question of foreseeability in this case nor any question that the negligence of the physician was a substantial factor causing the cancer phobia, the existence of which is undisputed.
We hold that, under the circumstances of this particular case, it would be contrary to public policy to permit the physician to be liable for the cancer phobia and related manifestations of neuroses that followed the negligent insertion of the catheter.