Appeal from the United States District Court for the Eastern District of Wisconsin, No. 85-C-1364, Terence T. Evans, Judge.
Before WOOD, JR., POSNER, and FLAUM, Circuit Judges.
WOOD, JR., Circuit Judge. John Misany sued the United States on September 18, 1985 under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, for injuries resulting from the temporary loss of his Army personnel file. The trial judge granted summary judgment for the United States. We affirm
The facts are not in dispute. In the district court, both parties moved for summary judgment and the district judge summarized the facts from Misany's complaint:
John Misany served in the United States Army from 1976 to 1982. After his honorable discharge, Mr. Misany returned to Milwaukee, Wisconsin. In Milwaukee he found that the United States Army Reserve offered a medical associate degree program under which he could attend a local college while receiving full-time military pay and benefits. He decided to enter the program and sought to enlist in an Army Reserve unit in Milwaukee. However, he was unable to enlist in the unit because his personnel records did not arrive in a timely fashion from the United States Army Reserve Center in St. Louis, Missouri. Mr. Misany alleges that his file was ultimately located at the record center where it had been misfiled.
Misany v. United States, No. 85-C-1364, order at 2, 3 (E.D. Wis. June 23, 1988).
On November 5, 1986, the district judge granted the United States' motion to dismiss after finding that Misany's complaint was a claim for negligent interference with contract rights and thus exempted from coverage by the Federal Tort Claims Act. See 28 U.S.C. § 2680(h); see also Misany v. United States, 826 F.2d 612, 614 (7th Cir. 1987). Misany appealed the district judge's ruling to this court. On August 10, 1987, we vacated the order of dismissal and remanded the case. 826 F.2d at 614. We instructed the district judge to identify the state whose law governs this case and to determine whether Misany's complaint stated a cognizable claim under that state's law. Id. On remand, the district judge found that Wisconsin law governed but he departed from his original treatment of Misany's complaint as a claim involving contract rights. Instead, the district judge accepted Misany's characterization of his complaint as a claim for negligent maintenance of personnel records and found that Wisconsin would not recognize a cause of action for negligent maintenance of personnel records. Misany appeals.
Misany and the United States agree that Wisconsin law governs.*fn1 Misany argues, however, that his complaint states a cognizable claim under Wisconsin law. Insofar as the district judge's ruling was based on public policy grounds, Misany argues that the government waived the public policy defense by not affirmatively raising it in its answer. Alternatively, Misany argues that the district judge should not have ruled on public policy grounds before trial. Finally, Misany suggests that we should certify the issue of Wisconsin's public policy to the Wisconsin Supreme Court.
The Wisconsin courts require a plaintiff pleading a negligence cause of action to plead the four traditional elements of a tort--duty, breach, causation, and injury. See, e.g., Robinson by Robinson v. Mount Sinai Medical Center, 137 Wis. 2d 1, 402 N.W.2d 711, 717 (1987); Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531, 247 N.W.2d 132, 135 (1976). The Wisconsin courts also adhere to the minority position of Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), and define negligence expansively. See A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 214 N.W.2d 764, 766-67 (1974); Schilling v. Stockel, 26 Wis. 2d 525, 531, 133 N.W.2d 335, 338 (1965). Nevertheless, liability does not always follow negligence. See Garrett by Kravit v. City of New Berlin, 122 Wis. 2d 223, 362 N.W.2d 137, 143 (1985); Hartridge v. State Fad Mut. Auto. Ins. Co., 86 Wis. 2d 1, 271 N.W.2d 598, 602 (1978); A.E. Inv. Corp., 62 Wis. 2d 479, 214 N.W.2d 764, 767. "However, the denial of liability, once negligence is found, is better defined as a public policy choice rather than as a matter of duty, foreseeability or proximate cause." Hartridge, 86 Wis. 2d at 1, 271 N.W.2d 598, 602.
Under Wisconsin law, "intention is an essential element of a claim for damages sustained as a result of contractual interference." Hartridge, 86 Wis. 2d 1, 271 N.W.2d 598, 601. Negligence is not enough. Thus, if we reject Misany's classification of his cause of action and instead classify it as negligent interference with contractual relations, Misany's complaint fails. He did not plead intent.
Under Wisconsin law, we are not bound by plaintiff's characterization of his cause of action. See Martin v. Liberty Mut. Fire Ins. Co., 97 Wis. 2d 127, 293 N.W.2d 168, 171 (1980). We can, however, and do agree with plaintiff's argument that we should focus on the type of activity causing the injury rather than the type of injury when we characterize plaintiff's complaint. See Quinones v. United States, 492 F.2d 1269, 1280 (3rd Cir. 1974). The Wisconsin Supreme Court also focuses on the nature of the activity when evaluating claims for negligent interference with contractual relationships. See Augustine v. Anti-Defamation League of B'nai B'rith, 75 Wis. 2d 207, 249 N.W.2d 547, 554 (1977). The Wisconsin Supreme Court focused more pointedly than Misany would like when it stated "that it is not sufficient that the contract be interfered with, even though the conduct of the alleged tortfeasor might have incidentally had that result. Only if the actor intentionally causes the nonperformance can liability follow." Id. (emphasis added). "This intent requirement also applies to interference with prospective contracts." Cudd v. Crownhart, 122 Wis. 2d 656, 364 N.W.2d 158, 160 (Wis. App. 1985).
Misany claims that the Army negligently lost his records and caused him to lose a prospective job. We hold that his claim is properly classified under Wisconsin law as a claim for interference with a prospective contractual relationship. Cf. Cudd, 122 Wis. 2d 656, 364 N.W.2d 158, 160. The district court was on the right track to begin with and should not have accepted Misany's characterization of his own claim. Because Misany failed to allege that the Army intended to ...