Vol. 78, No. 11, November
Court of Appeals Digest
This column summarizes selected published opinions of the Wisconsin
Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer
invite comments and questions about the digests. They can be reached at
the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee,
WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Reasonableness - Hearings - "Freeze Order"
Kohl v. DeWitt Ross
& Stevens, 2005 WI App 196 (filed 11 Aug. 2005) (ordered
published 20 Sept. 2005)
An attorney represented a woman in a divorce action. The attorney had
disagreements with the client and then, with the court's consent,
withdrew from representing the client. The attorney sought payment of
about $15,000 for attorney fees, which the client refused to pay. The
court ordered the client to not transfer or encumber particular funds
that could be used to pay the attorney fees. Following a 90-minute
hearing in which the client appeared pro se, the court granted judgment
in favor of the attorney.
The court of appeals, in an opinion written by Judge Vergeront,
affirmed. First, the client unsuccessfully argued that Wis. Stat.
section 767.23(3) limits the award of attorney fees to situations in
which one attorney withdraws and another is substituted at the very same
time. The "only reasonable meaning of Wis. Stat. § 767.23(3)(a) is
that it gives the court in an action affecting the family the authority
to enter a judgment for the fees owed by the client to an attorney who
is permitted by order of the court to withdraw, regardless when or if
the client retains another attorney to replace the withdrawing attorney
in that action" (¶ 23). Second, the client was accorded a
reasonable opportunity to be heard. The circuit court restricted the
hearing to 90 minutes, which was not unreasonable as a matter of law.
Moreover, the client had been given advance notice of the time limits
and spent some of the available time on matters of "little relevance" to
the fee issue (¶ 26).
Third, the circuit court reasonably determined that the client owed
nearly $16,000 in fees, which included services provided by a
"paralegal." Fourth, the judge properly issued the "freeze order" to
secure payment of the attorney fees. The court of appeals said that Wis.
Stat. section 767.23(1)(h) "gives the court the authority `during the
pendency' of an action affecting the family, to `prohibit ...
either party from disposing of assets within the jurisdiction of the
court.' [The client] asserts that this provision was intended to protect
each party from adverse actions by the other, not to protect attorneys.
However, no such limitation is even arguably apparent from the statutory
language or the context of the statute. [The client] also argues that
the court's authority exists only up to the time that the judgment of
divorce is granted, because after that the action is not `pending.'
However, at the time the court entered the freeze order in this case,
although it had granted the divorce, the issues of custody and
placement, as well as the motion for attorney fees, remained to be
resolved. The only reasonable construction of the statute is that this
action affecting the family was still `pending' when the court entered
the freeze order" (¶ 32).
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Deadman's Statute - Marital Property
Gerczak v. Estate of
Gerczak, 2005 WI App 168 (filed 14 June 2005) (ordered
published 20 Sept. 2005)
Gerczak (the son) worked full-time at his father's liquor store.
Because of cash flow problems, both father and son often deferred their
payroll checks so that the store's creditors could be paid first. When
the father died in 2003, the store's assets passed into his residual
estate. The son filed claims against the estate for "loans" made to the
business and unpaid wages. The son's sister opposed the claims. The
son's wife worked as the store's bookkeeper. At a hearing on the
contested claims, the court ruled that the wife was barred by the
deadman's statute from testifying that the unpaid payroll checks were
business loans. After excluding this evidence, the court found the
evidence insufficient to establish that the uncashed checks were
business loans, which meant that the claims were governed by the unpaid
wages two-year statute of limitation (which cut off claims for unpaid
wages owed from before August 2001).
The court of appeals, in an opinion written by Chief Judge Cane,
affirmed. This is the first Wisconsin case to address the relationship
of the deadman's statute, Wis. Stat. section 885.16, to the Marital
Property Act. "Under Wis. Stat. § 766.31, one spouse's income is
marital property in which both spouses have a present undivided half
interest. In any claim for unpaid wages, therefore, a non-wage earning
spouse has the same interest in the potential income as the spouse who
earned the wages. Even if the claim in this case involves an unpaid
loan, the money used to make that loan would presumptively be marital
property, used for a marital purpose and, in the absence of evidence
demonstrating that it was separate property, [the wife] would again have
the same interest in that property as her husband. Thus, to the extent
that [the wife and her husband] would have the same ownership interest
in the property that gives rise to this action, and the same right to
control and manage that property, [the wife's] interest in the outcome
of the litigation is as `present, certain, and vested' as her husband's"
Because the wife was incompetent to testify about transactions or
conversations with the father about the significance of the husband's
unpaid payroll checks, the circuit court appropriately found that the
claim was governed by the two-year statute of limitation that governs
actions for unpaid wages (see ¶ 21).
Search and Seizure - Wisconsin Electronic Surveillance
Control Law - Police Recording of Inmate Telephone
Riley, 2005 WI App 203 (filed 10 Aug. 2005) (ordered published
20 Sept. 2005)
The issue before the court in this case was whether the circuit judge
properly granted the defendant's motion to suppress electronic
surveillance evidence that consisted of recordings of outgoing telephone
calls the defendant made to nonattorneys from the county jail in which
he was incarcerated. Persons placing calls from this telephone hear a
recording on the phone informing them that their calls "may be
The Wisconsin Electronic Surveillance Control Law (WESCL) (Wis. Stat.
§§ 968.27-.37) expressly prohibits interceptions of both wire
and oral communications absent a court order authorizing or approving
such interceptions, with some exceptions. The state argued that the
monitoring and recording of the defendant's calls from the jail fell
under the WESCL's exception for one-party consent surveillance and that
the recordings are therefore admissible. It maintained that the message
played to all callers who use the telephone provided the defendant with
meaningful notice that his outgoing calls from the jail's telephones
might be recorded and that when the defendant continued with his calls
after hearing that announcement, he impliedly consented to their
In a decision authored by Judge Anderson, the court of appeals noted
that federal courts of appeal that have addressed the consent exception
in the prison setting have overwhelmingly concluded that an inmate has
given implied consent to electronic surveillance when he or she is on
notice that his or her telephone call is subject to monitoring and
recording and nonetheless proceeds with the call (see ¶
11). The court relied on this developed federal consensus concerning the
scope of the consent exception and applied it to the WESCL.
"We therefore hold that so long as an inmate is given meaningful
notice that his or her telephone calls over institutional phones are
subject to surveillance, his or her decision to engage in conversations
over those phones constitutes implied consent to such surveillance.
Meaningful notice may include a signed acknowledgment form, an
informational handbook or orientation session, a monitoring notice
posted by the outbound telephone, or a recorded warning that is heard by
the inmate through the telephone receiver, prior to his or her making
the outbound telephone call" (¶ 13). Accordingly, the defendant's
communications were lawfully intercepted under the WESCL and the
evidence derived from the interceptions is admissible as long as the
authentication procedures set forth in section 968.29(3)(b) are met.
The state also argued that the WESCL'ns law enforcement exception
applied in this case. However, the court chose to leave this issue for
another day because the record was insufficient with respect to it
(see ¶ 7 n.2). Nor did the court need to deal with the
WESCL's prohibition on the interception of communications between an
attorney and a client; the defendant did not assert that he made a call
to his attorney that was unlawfully intercepted by the jail's recording
system (see ¶13 n.5).
Sentencing - Multiple Terms of Probation
_Consecutive Periods of Conditional Jail Time
Johnson, 2005 WI App 202 (filed 16 Aug. 2005) (ordered
published 20 Sept. 2005)
On Sept. 26, 2003, the defendant entered a no contest plea to one
count of failure to pay child support. On Nov. 10, 2003, he pleaded
guilty to two counts of delivery of cocaine. He was found guilty in both
cases on the respective days on which he entered his pleas. He was not
sentenced for any of the crimes until Jan. 24, 2004. At that time, the
circuit court withheld sentence on the child support conviction, placing
the defendant on probation for five years. As a condition of probation,
he was ordered to serve nine months in the county jail. The court also
withheld sentence on both drug counts, placing the defendant on
probation for 12 years. As a condition of probation, he was ordered to
serve nine months in the county jail. Finally, the circuit court ordered
that the terms of probation in the drug cases and the child support case
be concurrent but made the periods of conditional jail time consecutive
to each other. The defendant was thus required, as a condition of
probation, to serve a total of 18 months in the county jail.
The Wisconsin statutes provide that a court may require, as a
condition of probation, that a probationer be confined during such
period of the term of probation as the court prescribes but that the
confinement period cannot exceed one year. See Wis. Stat.
§ 973.09(4)(a). As described above, the court ordered the defendant
confined in the county jail for consecutive nine-month periods as a
condition of probation. The defendant argued that the court had no
statutory authority to order consecutive periods of conditional jail
time and that requiring him to serve a total of 18 months in jail as a
condition of probation violates section 973.09.
In a decision authored by Chief Judge Cane, the court of appeals
affirmed the circuit court. Because the convictions in the child support
and drug cases occurred at different times (the defendant was
adjudicated guilty at two distinct plea hearings) and because the
defendant therefore was not serving a single probationary term, the
court of appeals concluded that the circuit judge had the statutory
authority to order consecutive periods of conditional jail time. Had the
defendant been convicted at the same time in his drug and child support
cases, "those crimes would, as the State apparently concedes, give rise
to a single `term of probation,' which in turn would mean that the
one-year limit on conditional jail time [would apply] to that term"
Search and Seizure - Consent Searches
Kelley, 2005 WI App 199 (filed 6 July 2005) (ordered published
20 Sept. 2005)
The police were looking for an accelerant and the handset of a
cordless telephone in connection with a murder investigation. Suspecting
that the defendant may have been involved in the murder and also having
been advised that he had child pornography in his apartment, they went
to the apartment and asked the defendant for permission to search for
evidence related to the murder. He consented. During the search, the
police looked under the defendant's bed and found child pornography. The
defendant was charged with possession of child pornography. He filed a
motion to suppress the evidence, arguing that the police coerced him
into consenting to the search by failing to disclose that they would be
looking for child pornography. The circuit court ruled that the consent
was voluntary and was not affected by the detectives' failure to
identify all of their suspicions. It found that the defendant consented
to a general search of his apartment and that he did not limit that
search. Therefore, the circuit court denied the motion.
In a decision authored by Judge Wedemeyer, the court of appeals
affirmed. The detectives identified for the defendant the principal
purpose for the investigation, namely looking for evidence related to
the murder. The defendant consented to a general search of his apartment
based on this information. He did not limit the search in any way. He
was present when the officer was searching the bedroom. He could have
limited or withdrawn his consent when he observed the officer searching
under the bed, see Florida v. Jimeno, 500 U.S.
248, 252 (1991), but he did not do so (see ¶ 11).
The defendant argued that the police should have disclosed that they
had reason to believe he had child pornography in his apartment. Said
the court, "[w]e are not persuaded that the detectives' failure to
disclose all their suspicions invalidated an otherwise validly obtained
consent. This was not a case of deception or false pretext. The
detectives went to search [the defendant's] apartment because they were
investigating a murder. They had legitimate suspicions based on the
circumstances present that he may have been involved in the murder. They
disclosed the purpose of this investigation. This was not a case where
the officers fabricated a story about a non-existent murder to sneak
their way into [the defendant's] apartment in order to look for child
pornography. They had valid reasons to believe a search of his apartment
was pertinent to the actual murder investigation. Thus, the failure of
the officers to disclose secondary suspicions did not result in coercion
or an involuntary consent" (¶ 12).
The court also rejected the defendant's argument that the search
violated the scope of the defendant's consent. The police were searching
for a telephone handset and an accelerant. Either object easily could
have been hidden beneath the bed. Moreover, the defendant did not limit
the scope of his consent but rather authorized a general consent to
search the entire apartment. The defendant's failure to object to the
search under the bed was further support for the court's conclusion that
the officer did not exceed the scope of the consent when he searched
under the bed.
Interrogation - Miranda Warnings - Attorney
Rockette, 2005 WI App 205 (filed 10 Aug. 2005) (filed 20 Sept.
This "unusual" case involves a detective's omission of
Miranda warnings while questioning a suspect, who was in
custody but had defense counsel present to represent him during the
interrogation. The defendant was arrested and charged with a series of
violent offenses. He had refused to speak with police on prior occasions
but his defense counsel "hoped" that the defendant might obtain
"consideration" if he cooperated with the state. Before any questioning
began, defense counsel requested that the detective not read the
Miranda warnings and advised his client "that so long as he did
not receive Miranda warnings, nothing he admitted to could be
used against him." Complying with counsel's request, the detective did
not read the Miranda warnings. The detective also did not
obtain a valid waiver before the interrogation. The first defense
counsel later withdrew, and substitute counsel moved to suppress
statements the defendant made during the interrogation. The court denied
the motion to suppress. The defendant later pleaded guilty to some
The court of appeals, in a decision authored by Judge Brown,
affirmed. Of special significance is the court's determination that the
defendant had not waived his Miranda rights and its observation
that the state, "to its credit," conceded that a Miranda
violation "probably occurred" despite counsel's presence (¶ 25). In
particular, defense counsel had provided "erroneous information" when he
told the defendant that his statements could not be used against him.
Since the defendant's statements during the interrogation were
voluntary, they could be used to impeach his trial testimony regardless
of any Miranda defects. Although the trial court should have
suppressed the statements because of the Miranda violation, any
error was harmless because there was no reasonable possibility that the
disputed evidence contributed to the guilty plea and conviction. (The
latter analysis was fact intensive and presented no novel questions of
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Wisconsin Fair Employment Act - Proof of Disability -
Permanency of Disability
Erickson v. Labor &
Indus. Review Comm'n, 2005 WI App 208 (filed 3 Aug. 2005)
(ordered published 20 Sept. 2005)
The Labor and Industry Review Commission (LIRC) determined that the
petitioner's employer did not unlawfully discriminate against the
petitioner on the basis of disability, because the petitioner failed to
prove that he was an "individual with a disability" within the meaning
of the Wisconsin Fair Employment Act (WFEA). See Wis. Stat.
§ 111.32(8). The circuit court affirmed LIRC. The court of appeals,
in a decision authored by Judge Snyder, affirmed the circuit court.
The petitioner argued that LIRC and the circuit court erred when they
determined that a disability must be permanent in order to be actionable
under the WFEA. The appellate court disagreed with the petitioner's
position. "For over twenty years, LIRC has interpreted the term
`disability' within the WFEA to require a permanent impairment. Had our
legislature considered this an inappropriate reading of the statute, it
could have revised the language to include temporary impairments. We
will not impose a new interpretation where our legislature has seen fit
to let the statutory language, as applied by LIRC, stand" (¶ 16).
The court concluded that the LIRC properly interpreted section 111.32(8)
to require the petitioner to demonstrate a permanent impairment.
The petitioner presented no medical evidence with regard to proof of
disability, either in the form of physician testimony or of competent
medical records, on which a fact-finder could base a conclusion about
the nature of his condition. Said the court, "proof of a disability
requires competent medical evidence of the employee's alleged
impairment" (¶ 17). To demonstrate that a disability under the WFEA
exists, the complainant must present competent evidence of a medical
diagnosis regarding the alleged impairment (see ¶ 19).
Lastly, the appellate court concluded that the petitioner failed to
demonstrate that the employer discriminated against him on the basis of
perceived disability. While it is true that the employer accommodated
the petitioner by giving him light-duty work, this was done despite an
independent medical report indicating that the petitioner had no
permanent impairment. By offering light-duty work, the employer
supported the petitioner's efforts to continue working and ultimately
upheld the WFEA's purpose, which is to enable individuals to work. "We
would undermine the purpose of the WFEA were we to conclude that [the
employer's] decision to grant [the petitioner's] requests for light-duty
work rather than terminating his employment for refusing to perform his
regular job duties, was proof of a perceived disability under Wis. Stat.
sec. 111.32(8)(c)" (¶ 21).
Wisconsin Fair Employment Act - Disability -
Doepke-Kline v. Labor
& Indus. Review Comm'n, 2005 WI App 209 (filed 18 Aug.
2005) (ordered published 20 Sept. 2005)
The petitioner claimed that her employer violated the Wisconsin Fair
Employment Act (WFEA) by discharging her because of her asthma, refusing
to accommodate her disability, and discriminating against her in the
terms and conditions of her employment because of her disability. The
Labor and Industry Review Commission (LIRC) dismissed her claim,
concluding that she did not demonstrate that she was an individual with
a disability within the meaning of Wis. Stat. section 111.32(8). The
circuit court affirmed and the court of appeals, in a decision authored
by Judge Vergeront, affirmed the circuit court.
The petitioner argued that Chicago, Milwaukee, St. Paul &
Pacific R.R. Co. v. DIHLR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974),
established that an asthma diagnosis by itself establishes a disability
within the meaning of the WFEA. The appellate court in the present case
concluded that asthma can be a disability under the WFEA but only if the
claimant establishes that his or her particular physical condition
constitutes a handicap within the meaning of the WFEA. This involves a
two-step analysis. "First, the claimant must establish that there is a
real or perceived impairment - with an impairment defined as `a real or
perceived lessening or deterioration or damage to a normal bodily
function or bodily condition, or the absence of such bodily function or
such bodily condition.' Second, the claimant must establish that such a
condition actually makes or is perceived as making achievement unusually
difficult or limits the capacity to work" (¶ 16, citing City of
La Crosse Police & Fire Comm'n v. LIRC, 139 Wis. 2d 740, 407
N.W.2d 510 (1987)) (internal citations omitted).
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Health Care Records - Confidentiality - Scope of
Korntved v. Advanced
Healthcare S.C., 2005 WI App 197 (filed 19 July 2005) (ordered
published 20 Sept. 2005)
This litigation arose out of an unauthorized disclosure of
confidential healthcare information. An Advanced Healthcare employee
accessed certain medical records and then disclosed the information to
her husband. The medical records were those of the husband's daughter
and the daughter's mother. When they learned of the breach of
confidentiality, the daughter and her mother sued Advanced Healthcare
and alleged numerous claims. The circuit court granted summary judgment
in Advanced Healthcare's favor because the record did not show that the
employee was acting within the scope of her employment when she accessed
and disclosed the information.
The court of appeals, in a decision authored by Judge Curley,
affirmed. "In determining whether an employee was acting within the
scope of his or her employment, `[t]he test is whether the servant has
stepped aside from the business of his [or her] principal to accomplish
an independent purpose of his [or her] own, or whether he [or she] was
actuated by an intent to carry out his [or her] employment and to serve
his [or her] master'" (¶ 11). Although this "usually" presents a
jury question because of its subjective nature, the record here
demonstrated no material issue of fact. "There is nothing in the record,
as of the time of the summary judgment motion, to support an inference
that [the employee] was attempting to benefit or serve her employer when
she accessed the medical records. What was in the record,
however, was Advanced Healthcare's confidentiality policy, a copy of
which had been signed by [the employee] as a condition of her
employment, delineating the proper methods for the access and release of
medical records, and identifying the only individuals with authority to
do so" (¶ 13).
Based on these policies, it was "quite clear that, unless done via
the Medical Information Department or in accordance with direct business
responsibilities, access to and release of medical records is clearly
prohibited - regardless of whose information it is or who wants the
information. There is nothing in the record to suggest that [the
employee] was a representative of the Medical Information Department.
Moreover, the record shows that, in a response to an interrogatory,
Advanced Healthcare indicated that it had no reason to believe that [the
employee] would have had a clinical need to access the records for her
Underage Drinkers - Immunity - Good Samaritan Immunity -
Mueller v. McMillan
Warner Ins. Co.,
2005 WI App 210 (filed 2 Aug. 2005) (ordered published 20 Sept.
The Switlicks hosted a party at their summer "shack." Their underage
son had several beers inside the house while the adults were outside.
The plaintiff, who also was underage, joined the son and may have had a
drink (her later head injury left her without any memory of that
evening). At about 11 p.m., the son and the plaintiff took off on an
all_terrain vehicle (ATV). The son lost control of the ATV and crashed.
Both the son and the plaintiff, covered in blood and vomiting, returned
to the shack. At 6 a.m. Mrs. Switlick called an ambulance for the
plaintiff, who was found to have suffered a broken skull. The plaintiff
sued the son for negligence and his parents for negligence in providing
beer to minors and failing to care for her properly after the accident.
The circuit court ruled that the Switlicks had provided "traditional
first aid" to the plaintiff and hence were immune from liability under
Wis. Stat. section 895.48(1), that the plaintiff had no cause of action
for the underage drinking claim because she was a "principal," and that
the pertinent homeowner's insurance policy provided no coverage because
the ATV, which the Switlicks did not own, was "garaged" on the
The court of appeals, in a decision written by Chief Judge Cane,
reversed. First, the Switlicks were not "protected providers" for having
"accompan[ied]" their son while he drank their alcohol. The court
concluded "that underage drinkers are not accompanied by a parent merely
because the parent and child are on the same premises" (¶ 16). Here
the parents had "told [their son] not to drink where he could be
observed by the other guests and both [his father and mother] admitted
they did not know how much their son drank between 2 p.m. and 10 p.m.
Based on those undisputed facts, [the Switlicks] were neither
supervising nor otherwise controlling [the son] when he was drinking and
were thus not accompanying him for the purposes of Wis. Stat. §
125.07(1)(a)" (¶ 16).
Second, the court also erred when it concluded that the plaintiff was
not an injured third party under Wis. Stat. section 125.035(4)(b). The
record revealed material issues of fact about whether the plaintiff was
a "principal" to the "transaction" by which the son received alcohol
from his parents "or whether she was an underage drinker injured as a
result of alcohol illegally provided to a companion underage drinker"
Third, the Switlicks did not have immunity as "Good Samaritans,"
because they did not provide emergency medical care. The court of
appeals noted that although case law is sparse, the record clearly
revealed that the Switlicks did little or nothing for the plaintiff that
she could not have done for herself. "Suggesting that a bloody and
vomiting woman lie in a bed rather than on a floor, covering her with a
quilt, leaving her alone in a dark room for six or more hours, and
periodically asking if she felt all right does not, we conclude,
constitute emergency care. Other jurisdictions have found that
relatively simple acts, such as providing transportation to an emergency
room or asking whether accident victims need help, can constitute
emergency care for the purposes of Good Samaritan statutes. But even if
we disregard differences among Good Samaritan Laws, such persuasive
precedent is factually distinguishable. In those cases, individuals
provided care either by transporting injured persons to a place where
their injuries could be treated or by attempting to make medical help
available" (¶ 34).
Finally, the court held that the Switlicks' homeowner's policy
covered their son's use of a neighbor's ATV. The policy excluded
recreational vehicles that are "garaged" on the insureds' premises. The
precise issue turned on "whether a recreational vehicle is garaged if it
is left on a property ... from two and one half weeks to a single
day" (¶ 39). Without deciding "how long it would take to turn
parking into garaging," the court held that "casual, one-time use of a
property that spans less than three weeks is not sufficient to
accomplish that transformation" (¶ 43).
Punitive Damages - Excessive Award
Hogner, 2005 WI App 194 (filed 2 Aug. 2005) (ordered published
20 Sept. 2005)
Hogner consumed 16 to 18 beers and then attempted to drive. His car
collided with Strenke's car. Hogner's blood alcohol level was tested at
.269 percent, and he was convicted of his fifth offense of operating
while intoxicated. In the trial of the resulting civil action, Strenke's
lawyer asked the jury to find $2,000 in compensatory damages and $25,000
in punitive damages. The jury returned a verdict that assessed punitive
damages at $225,000. Hogner and his insurer appealed. The court of
appeals certified the appeal to the supreme court. In Strenke v.
Hogner, 2005 WI 25, the supreme court affirmed the punitive damages
award in other respects but was evenly divided on the question of
whether the verdict violated Hogner's due process rights.
On remand, the court of appeals, in a decision written by Chief Judge
Cane, affirmed the trial court and held that the verdict did not violate
Hogner's due process rights. "The question before us now is whether,
under the BMW-State Farm-Trinity standard, the $225,000
punitive damage award in this case is `grossly excessive.' We conclude
it is not" (¶ 19) (citations omitted).
First, the award served the legitimate state interest in punishing
and deterring drunk drivers. "The degree of reprehensibility is the most
important factor in any excessiveness inquiry and the conduct in this
case qualifies as egregious. Hogner testified he had never hurt anyone
previously while driving drunk, and never intended to. But those claims
do nothing to mitigate his conduct. He admits to four previous arrests
for drunk driving - the fifth came as a result of the accident. The
drinking pattern established at trial, beginning at 8 a.m. at home and
then moving on to taverns, would in addition provide grounds from which
to infer that these five occasions of drunk driving represented only a
fraction of the times Hogner drank and drove. Hogner's blood-alcohol
level was more than three times the .08 percent level that establishes
presumptive intoxication, arguably indicating profound indifference to
the health and safety of others. He demonstrated even greater
indifference each time he got in his car in search of more alcohol.
Other jurisdictions have found, and we agree, that evidence of this sort
establishes reprehensibility clearly, convincingly, and substantially"
(¶ 21). In short, four of the five factors "used to measure
reprehensibility" were present (see ¶ 22).
As to the "second guidepost" identified in the case law, "we must ask
whether, despite the state's interest in punishment and deterrence of
drunk drivers and the reprehensibility of the conduct at issue, the
difference between $2,000 and $225,000 is so excessive it creates the
kind of notice problem identified in BMW and State
Farm. If we consider only actual harm, it is hard to argue that
Hogner would expect that an accident that caused $2,000 in damages would
subject him to a punitive damage award of more than 100 times that
amount. In addition, Wisconsin case law tends to disfavor awards whose
ratio to compensatory damages is in the double digits. If we consider
potential damages, however, the excessiveness calculus changes" (¶
23). The court also looked to the criminalization of drunk driving and
the statutory scheme of gradated, escalating penalties for repeat
offenders, a legislative scheme entitled to "deference." The court held
that the jury could have reasonably found that a large punitive damages
award would support, not weaken, the civil and criminal sanctions
imposed by the legislature (see ¶ 28).
Finally, the court rebuffed Hogner's argument that the vast
discrepancy between the requested award of $25,000 and the jury award of
$225,000 marked the verdict as a product of passion or prejudice.
Children - Failure to Control
Spencer, 2005 WI App 207 (filed 10 Aug. 2005) (ordered
published 20 Sept. 2005)
During a fracas at a local mall, 16-year-old Franklin struck another
minor, Jonathan, on the head with a blackjack, causing a serious injury.
Jonathan and his parents sued Franklin's mother for negligent failure to
control her child. The circuit court granted partial summary judgment in
favor of Franklin's mother on the issue of whether she knew or should
have known of the necessity and opportunity for controlling her son.
The court of appeals, in a decision written by Judge Anderson,
affirmed. The sole question was whether genuine issues of material fact
existed regarding the plaintiffs' claim of negligent failure to control
a child's conduct. In essence, the plaintiffs argued "that the police
department records indicate that Franklin had `violent and delinquent
tendencies' and therefore raise a jury question as to whether [the
mother] knew, or should have known, of the necessity and opportunity for
controlling Franklin" (¶ 11).
The court held that "[t]he record in this case contains no evidence
from which it could be reasonably inferred that [the mother] knew, or
should have known, of specific acts of prior conduct sufficient to put
her on notice that the act [the plaintiffs] complain of was likely to
occur. [The mother] averred that she did not know [Jonathan], she did
not consider Franklin to be a violent person, she had never known
Franklin to use an instrument or any kind of object to injure another
person, and she was not aware of Franklin owning a blackjack prior to
February 5. The evidence simply does not suggest that she knew, or
should have known, otherwise in February 2002" (¶ 15).
Police records contained several references to nonviolent delinquent
behavior (for example, bike thefts) but only one reference to a
"possible physical altercation," which occurred nearly three years
earlier and involved no reported physical injuries to the alleged victim
(¶ 17). Nor was there any evidence demonstrating that the mother
had the opportunity to prevent Franklin's conduct at the mall. Without
dispute the altercation at issue did not occur within her presence or
close proximity. And nothing suggested that the mother knew that her son
was armed with a blackjack (see ¶ 18).
The court also looked at analogous cases, which "teach that §
316 of the Restatement does not require parents to anticipate and guard
against every logically possible instance of misconduct. This is so even
where, as here, the parent was aware, or at the very least, should have
been aware of the child's past delinquent but dissimilar behavior.
`Section 316 [of the Restatement (2d) of Torts] does not, after all,
purport to make parents vicariously liable for raising careless or
delinquent children, nor does it intend `to transform parents from care
givers and disciplinarians into the jailors and insurers of their minor
children'" (¶ 22).
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