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    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.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 3, March 2007

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    Criminal Procedure

    Interpreters - Court's Obligation to Inquire about Defendant's Need for Interpreter

    State v. Ravesteijn, 2006 WI App 250 (filed 8 Nov. 2006) (ordered published 19 Dec. 2006)

    The defendant pleaded guilty to several felonies. His subsequent motion to withdraw the pleas was denied. One of his arguments on appeal was that the circuit court failed to obtain a valid waiver of his right to an interpreter. On this issue the court of appeals, in a decision authored by Judge Snyder, affirmed.

    The defendant, a citizen of the Netherlands, contended that the circuit court was obligated to consider whether he needed an interpreter and to obtain his personal waiver of the right to an interpreter. His argument failed, said the appellate court, "because the circuit court's obligation to make a factual determination is triggered only when the court is put on notice that the defendant has a language difficulty. The court has notice of a language difficulty `when it becomes aware that a criminal defendant's difficulty with English may impair his or her ability to communicate with counsel, to understand testimony in English, or to make himself or herself understood in English'" (¶ 6) (citations omitted).

    In this case there was nothing in the record to suggest the existence of a language barrier to understanding the plea colloquy. "[The defendant's] consultations with counsel during the plea colloquy were attributed to nerves rather than an inability to comprehend the English language. The record showed that [the defendant] had been in the United States for a long time. Though [he] is not a citizen of the United States and speaks with a Dutch accent, his English language ability is reflected in the fact that the circuit court almost overlooked the obligation to inform [the defendant] that as a noncitizen he could be subject to deportation as a result of the convictions" (¶ 7). Although an interpreter was sworn at the postconviction motion hearing, the circuit court expressed surprise at the claim that an interpreter was required. The court observed that throughout the proceedings the defendant understood and was able to communicate in English. As a matter of fact, the defendant's postconviction appellate counsel acknowledged that the defendant "`does speak English, and he speaks it well'" (¶ 8).

    The court of appeals concluded that "[t]he circuit court did not have an obligation to inquire about whether an interpreter was needed or personally waived by [the defendant]. There was nothing to suggest that [the defendant] had a difficulty with English that might impair his ability to communicate with counsel, understand proceedings in English, or make himself understood in English. It follows that there is no manifest injustice supporting plea withdrawal" (¶ 9)

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    Bank Records - No Expectation of Privacy - Failure of Government to Comply with Subpoena Statute

    State v. Popenhagen, 2007 WI App 16 (filed 12 Dec. 2006) (ordered published 31 Jan. 2007)

    This case involved several alleged thefts by the defendant from her employer. During the investigation the police obtained subpoenas for the defendant's bank records. The subpoenas were signed by circuit court judges, but no determination of probable cause was made in connection with the judges' approval of the subpoenas. Such determination is required by the statute governing subpoenas for documents in the hands of innocent third parties. See Wis. Stat. § 968.135. The subpoenas were served on two banks, and the banks turned over all of the defendant's records, including bank statements and copies of deposit slips and cancelled checks.

    The defendant was charged with theft, and she moved to suppress the bank records and statements she made after the police confronted her with the records. The circuit court held that the defendant had a legitimate privacy interest in the records, and the search pursuant to the subpoenas therefore violated her state and federal constitutional rights and Wis. Stat. section 968.135. The court also held that the remedy for a violation of section 968.135 was suppression of the records (and their fruits) obtained in violation of that section.

    In a majority decision authored by Judge Peterson, the court of appeals reversed. It concluded that "neither the Fourth Amendment nor the Wisconsin Constitution recognizes an expectation of privacy in bank records, and therefore the subpoenas did not violate either" (¶ 9). The court's analysis included a response to a Fourth Amendment argument of the defendant grounded in the federal Right to Financial Privacy Act (RFPA). "The RFPA prohibited banks from disclosing a customer's financial information without the customer's consent, a valid warrant, or a valid subpoena. The RFPA provided civil remedies against the government and banks for disclosures made in violation of its terms, and made those remedies exclusive. The RFPA remedies do not include suppression" (¶ 14).

    The appellate court further concluded that, although the subpoenas were issued in violation of section 968.135, suppression was not available as a remedy "because suppression is available only for violations of state or federal constitutional rights or where a statute specifically provides for suppression as a remedy" [which § 968.135 does not] (¶ 24). Said the court, "Wisconsin Stat. § 968.135 provides a procedure for issuance of a subpoena for documents. In many cases under § 968.135 - cases where the subpoena calls for release of constitutionally protected documents - a violation of the probable cause requirements of that section will necessarily coincide with a constitutional violation and suppression. However … not all violations of § 968.135 are constitutionally significant. Because the violation here was not constitutionally significant, suppression was not available as a remedy" (¶ 27).

    Chief Judge Cane filed a dissenting opinion.

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    Presentence Investigations - Miranda - Right to Counsel

    State v. Thexton, 2007 WI App 11 (filed 6 Dec. 2006) (ordered published 31 Jan. 2007)

    This case concerned several issues relating to the preparation of a presentence investigation report (PSI), including the defendant's claim that the probation officer who prepared the PSI violated the defendant's Fifth Amendment rights when the officer interviewed the defendant during the investigation. The defendant argued that the probation officer used a PSI from one of the defendant's prior cases as a basis for questioning him, that this tactic transformed the interview into an "accusatorial" one, and that the defendant was therefore entitled to Miranda warnings.

    In a decision authored by Judge Brown, the court of appeals concluded that the defendant "misunderstands the meaning of the word `accusatorial' in this context. He claims that the interview was accusatorial because [the probation officer] used a `classic interrogation technique whereby the investigator confronts the accused with prior statements.' But the word `accusatorial' in this context does not relate to the style or technique of interrogation used. As our supreme court has made clear, a presentence interview is accusatorial, and as such requires Miranda warnings, `to the extent that it seeks statements from a defendant on an element upon which the state still has the burden of proof.' State v. Heffran, 129 Wis. 2d 156, 165, 384 N.W.2d 351 (1986). Such was clearly not the case here, since no elements were outstanding at the time the PSI was being prepared. His Fifth Amendment claim fails" (¶ 9).

    The defendant further contended that his right to counsel was violated because he was unable to consult with his attorney regarding the use of the prior PSI during the interview. For this argument he relied on State v. Knapp, 111 Wis. 2d 380, 330 N.W.2d 242 (Ct. App. 1983). In that case, the appellate court rejected the argument that a defendant has the right to have an attorney present at a presentence interview.

    "We noted, however, that there are other safeguards for a defendant with regard to the presentence investigation, including the right to consult with counsel before a presentence interview and the right to have counsel dispute information contained in the report. [The defendant] does not allege that he was prevented from consulting with counsel before the investigation. Instead, he seems to be claiming that he had a right to consult with counsel before any questions relating to his prior PSI. We disagree. The right to consultation with counsel before a presentence interview does not include a right to be apprised of all lines of questioning before the interview occurs. The other safeguards noted in Knapp, including the right to dispute information in the report, adequately protect a defendant's Sixth Amendment rights, and [the defendant's] counsel did in fact vigorously and meticulously challenge the information and conclusions in the PSI at the sentencing hearing" (¶ 10).

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    Evidence

    Authentication - Chain of Custody - "Cold Hit"  

    State v. McCoy, 2007 WI App 15 (filed 27 Dec. 2007) (ordered published 31 Jan. 2007)

    The defendant was convicted of a sexual assault that occurred in October 1995. A nurse collected biological evidence from the victim shortly after the assault, and the evidence was inventoried immediately by the police. The evidence was reviewed by the State Crime Laboratory in September 1997, nearly two years later, and in 2001 was subjected to DNA analysis. The defendant was identified as the source of the DNA based on a "cold hit": lab analysts matched the suspect DNA with a 2003 sample taken from the defendant following a felony conviction.

    The court of appeals, in an opinion written by Judge Wedemeyer, rejected the defendant's challenge to the chain of custody. As with any authentication issue, the proponent need only submit evidence sufficient to support a jury's finding that the evidence is what the proponent claims it to be. Alleged gaps in the chain of custody go to weight, not admissibility (see ¶ 9). The defendant "contended that there was no testimony which explained how the evidence got from the police department to the crime lab, or where the evidence was stored during the two-year period between Cowan [the police officer] inventorying it and DeGroot [the 1997 lab analyst] testing it for the first time" (¶ 16).

    While not "perfect," the chain of custody was sufficient. "There are substantial time gaps as pointed out by McCoy. Nonetheless, the chain of custody evidence was sufficient to support the trial court's conclusion that it was admissible" (¶ 18). "The markings and seals personally placed on the evidence by all four of the witnesses who handled the evidence allowed them to each positively identify the evidence and independently recall what they did with the evidence. The absence of any additional markings or initials indicates that no one else handled this evidence between October 1995 and the trial. Moreover, the testimony from these four witnesses provided the jury, acting reasonably, with a sufficient basis to conclude that the tampon fragments introduced into evidence at trial were the same, and in substantially the same condition, as the fragments retrieved in October 1995 from the victim" (¶ 20).

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    Family Law

    Children - GAL

    State v. Freymiller, 2007 WI App 6 (filed 7 Dec. 2007) (ordered published 31 Jan. 2007)

    A child's parents separated and then shared placement of the child for several years until they disagreed over which school the child should attend. Each parent moved for primary placement. The trial court appointed a guardian ad litem (GAL), who was later forced to withdraw for medical reasons. Unable to appoint a replacement GAL before the scheduled hearing, the trial court proceeded without a GAL's participation or input. Primary placement was given to the mother, and the father appealed.

    The court of appeals, in an opinion written by Judge Deininger, reversed, holding that Wis. Stat. section 767.045(1) mandates the appointment of a GAL when modification of placement is sought (see ¶ 10). The court also rejected the mother's contention that the father either invited the error or waived it by proceeding without a GAL's participation. At bottom, the parties were not "empowered to waive their child's statutory right to have his best interests represented and advocated for in the placement proceedings" (¶ 19). It is a child's interests, not the parents', that the GAL protects.

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    Divorce - Stipulations - Withdrawal of Stipulations after Court Approval

    Hottenroth v. Hetsko, 2006 WI App 249 (filed 30 Nov. 2006) (ordered published 19 Dec. 2006)

    This case involved an appeal from a divorce judgment. Among the issues before the appellate court was the question of whether the circuit court erred when it refused to allow Hottenroth to withdraw from certain stipulations, as a matter of right, after the circuit court had approved them but before entry of the written judgment. (Editors' Note: Parties to a divorce may, "subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children … or for legal custody and physical placement, in case a divorce … is granted…." Wis. Stat. § 767.10(1).)

    In a decision authored by Judge Vergeront, the appellate court concluded that, "once a court approves a stipulation under Wis. Stat. § 767.10(1), the right of the parties to withdraw from the stipulation comes to an end" (¶ 30). "Whether the circuit court's decision is expressed as `approval' of the stipulation or `adoption' of the stipulation or as a ruling that `it be incorporated into the judgment' is not significant. The significant point is that once the court has expressed its decision to adopt the stipulation, the stipulation is no longer a recommendation of the parties but is the court's decision, a decision that has the same effect as one made on contested issues. In the latter situation, a party does not have the right to unilaterally alter the court's decision, and we see no reason a party should have that right in the former situation. Of course, in both cases a party may ask a circuit court to reconsider the decision before it becomes final, and the court has the discretion to do so. However, the court is not obligated to do so absent some reason that, in the proper exercise of its discretion, justifies a change in its decision" (¶ 26) (citation omitted).

    The court rejected Hottenroth's contention that the entry of the written judgment of divorce is a rational endpoint for a party's right to withdraw from a stipulation already approved by the circuit court. "When a judgment of divorce is granted, it is effective immediately, Wis. Stat. § 767.37(3); a judgment is `granted' when it is given orally in open court on the record. Wis. Stat. § 806.06(1)(d). However, it is often the case in divorce proceedings that the written findings of fact, conclusions of law, and judgment are entered (that is, filed with the clerk of court, see § 806.06(1)(b)) at a later time…. A rule that parties may withdraw as a matter of right from court-approved stipulations until the entry of the written judgment creates incentives for parties to delay in the process of preparing or approving the draft. It also increases uncertainty and undermines the interest of finality. In circumstances where the interests of certainty and finality should properly give way to other considerations, parties have procedures available for requesting relief from the court. See, e.g., Wis. Stat. § 806.07 (relief from judgment or order); Wis. Stat. § 805.17(3) (motion for reconsideration within twenty days of entry of judgment after trial to court)" (¶¶ 28-29).

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    Insurance

    Homes - Multiple Policies - Pro Rata

    Wegner v. West Bend Mut. Ins. Co., 2007 WI App 18 (filed 19 Dec. 2007) (ordered published 31 Jan. 2007)

    When a tornado destroyed the Wegners' home in 2001, the property was covered by two different homeowner's policies, one issued by West Bend and the other by Rural. The dual coverage arose because the Wegners had not canceled the West Bend policy before the tornado struck. Both policies contained escalator clauses that covered replacement costs. Rural and West Bend agreed that Rural would pay the Wegners' claims and the two companies would later pro rate the adjusted claim. After Rural paid the Wegners' replacement costs, the Weg-ners sued West Bend, claiming they were also entitled to the full value of that policy. Rural intervened in the suit against West Bend. The circuit court eventually entered judgment largely in favor of the insurers, and the Wegners appealed.

    The court of appeals, in a decision authored by Chief Judge Cane, affirmed. First, the court held that the "valued policy" law, Wis. Stat. § 632.05(2), which requires payment of the policy limits on destruction of the insured property, is qualified by the pro rata statute, Wis. Stat. § 631.43(1). "The valued policy law was `designed to discourage owners from over-insuring property while simultaneously thwarting insurers from collecting excessive premiums.' [Case law holds that] multiple coverage can only exist where there is consent of insurance companies" (¶ 14).

    "The plain language of the valued policy law does not provide, as the Wegners contend, that the insured is entitled to the limits of all policies insuring a dwelling. Instead, the pro rata statute specifically governs situations where two or more policies indemnify against the same loss. If we were to interpret the pro rata statute as not modifying the valued policy law, we would create a loophole to the pro rata statute allowing double recovery for the same loss that was not intended by the legislature. Therefore, absent the consent of Rural and West Bend, the Wegners are entitled to the full amount of their loss, but they are not entitled to the full amount of both policies if the combined limits exceed the actual loss" (¶ 15). The record did not establish such consent by the insurers.

    The court also held that Rural, not the Wegners, was entitled to proceeds paid by West Bend, regardless of technical distinctions between subrogation and contribution. Total damages exceeded $300,000. "If West Bend paid its portion of the loss ($164,285.13) directly to the Wegners, they would be overcompensated by $124,085.13. Rural would then be entitled to reimbursement via subrogation from the Wegners for that amount. If West Bend pays the Wegners the amount they need to be made whole ($40,200), and the remaining balance ($124,085.13) to Rural via contribution for the amount it has overpaid, all parties' net gains and losses are still the same. Regardless, if the method is subrogation or contribution, Rural is entitled to the $124,085.12 held in trust" (¶ 19).

    Finally, the court disposed of various affirmative defenses offered by the Wegners, including standing, the voluntary payment doctrine, accord and satisfaction, waiver, and estoppel.

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    Excess Coverage - Ambiguity

    Bormann v. Sohns, 2007 WI App 12 (filed 5 Dec. 2007) (ordered published 31 Jan. 2007)

    Bormann was injured in a car accident caused by Sohns, whose own insurer paid the policy limits. Sohns' mother also had an excess liability insurance policy issued by Glens Falls. Bormann requested a declaratory judgment that the Glens Falls policy provided coverage for the accident. The circuit court granted summary judgment in favor of Bormann.

    The court of appeals, in an opinion written by Judge Curley, reversed. The court agreed that the Glens Falls policy was "confusing" but concluded that it was not ambiguous (see ¶ 18). The excess policy listed a home and boat but contained no reference to automobiles. "The summary or declarations page is crucial because it spells out what is being insured and sets out the premium amounts and the coverage amounts. As a result, if the Sohnses expected to purchase excess automobile liability coverage, one would normally expect the coverage summary to list the make and model of the automobile for which coverage was being provided, particularly, where here, the policy's format has included such information for other covered exposures. Thus, the fact that no car is mentioned is strong proof that no automobile excess liability coverage was contemplated by the Sohnses when they bought their policy. Moreover, the failure of the policy to list a premium for automobile coverage is additional proof that no automobile coverage was contemplated. We would have expected the policy to reflect a premium for the automobile insurance being purchased, particularly where the policy lists a separate premium for the home and the boat…. The lack of a premium amount for automobile coverage, where other premiums are listed, is persuasive evidence that no coverage was purchased" (¶ 10). Nor did the policy refer to any underlying automobile insurance or require the Sohnses to maintain a particular level of primary coverage (see ¶ 11).

    The court also rebuffed Bormann's contention that a discussion of automobile coverage in the policy's "Wisconsin endorsement" was "tantamount to notifying the insureds that excess automobile liability coverage was purchased" (¶ 14). "The Wisconsin endorsement is the type of excess automobile coverage that would have applied had the Sohnses purchased it. However, as we have seen, the Sohnses did not purchase it. Consequently, we conclude that the endorsement provides coverage only when an additional premium for automobile excess liability coverage has been paid. This is a reasonable interpretation and is consistent with the language found in the policy and the endorsement"(¶ 15).

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    Open Meetings Law

    Closed Session under Wis. Stat. section 19.85(1)(c) - Discussions in Closed Session Not Discoverable in Subsequent Civil Litigation

    Sands v. Whitnall Sch. Dist., 2007 WI App 3 (filed 27 Dec. 2006) (ordered published 31 Jan. 2007)

    The plaintiff was employed by the Whitnall School District as the supervisor and facilitator of the district's gifted and talented education program. The district was not satisfied with the plaintiff's performance, and the school board met in closed sessions to discuss her employment. These meetings were noticed and conducted according to Wis. Stat. section 19.85(1)(c), which provides that a governmental body may be convened in closed session for the purpose of "[c]onsidering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility." The board subsequently met in open session and voted not to offer the plaintiff a new contract.

    In a civil action claiming that the district failed to comply with Wis. Stat. section 118.24(6), which requires that an "administrator" receive four months' notice of a school district's intent not to renew his or her contract, the plaintiff sought through interrogatories to discover the substance of the board's discussions in the two closed meetings. When the district refused to answer these interrogatories, the plaintiff filed a motion to compel answers, which motion the circuit court granted.

    In a majority decision authored by Judge Wedemeyer, the court of appeals reversed. Said the court, "[w]e conclude that, based on the plain language of the statute and the intent of the legislature, the substance of what was discussed at the closed meetings is not discoverable. The plain language of this statute clearly indicates the legislature's intent that some situations call for certain discussions to be shielded from the public. The language clearly indicates that discussions occurring in a properly noticed closed session are not subject to disclosure. The statute contains no exceptions to the non-disclosure principle, none for litigation or any other circumstance. Based on the foregoing, we conclude that a privilege of non-disclosure is implicit within this statute" (¶¶ 9-10).

    In a footnote the court observed that "[t]his case is distinguishable from the issue in Oshkosh Northwestern Co. v. Oshkosh Library Board, 125 Wis. 2d 480, 373 N.W.2d 459 (Ct. App. 1985), wherein the request was for access to motions and roll call votes, and not the `substance of the discussions which occurred in the closed meetings.' Id. at 486" (¶ 10 n.3).

    Judge Kessler filed an opinion concurring in part and dissenting in part.

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    Property

    False Advertising - Misrepresentation

    Below v. Norton, 2007 WI App 9 (filed 21 Nov. 2007) (ordered published 31 Jan. 2007)

    Below purchased a home from the Nortons, who represented that the only known plumbing defect was a bathtub drain. After moving in, Below learned that the sewer line between the house and the street was broken. Below filed suit against the Nortons, alleging false advertising and related claims. The circuit court dismissed Below's complaint.

    The court of appeals, in a decision authored by Judge Wedemeyer, reversed. First, the court of appeals held that Below's complaint stated a cognizable claim for false advertising under Wis. Stat. section 100.18, which requires proof that "(1) the defendant made to the public an `advertisement, announcement, statement or representation …' relating to the purchase of merchandise; (2) that the statement/representation was `untrue, deceptive or misleading'; and (3) the plaintiff sustained a pecuniary loss because of the statement/representation" (¶ 12).

    The court of appeals also held that Below's other misrepresentation claims were properly dismissed because they were barred by the economic loss doctrine. "If, as Below alleges, the Nortons knew of the defective sewer line and failed to disclose that information as required by statute, then they have breached the terms of the property condition contract and Below has a breach of contract action against them for which contractual remedies would be available. With the statutory protections afforded by § 709.02, the residential purchaser is protected by contract and, therefore, the economic loss doctrine should apply when the only damages sought are purely economic. Such is the case here" (¶ 17).

    Finally, the court of appeals held that Below's breach of contract claim was properly rejected because it was not timely and properly filed.

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    Torts

    Worker's Compensation - Exclusivity - Temporary Workers

    Warr v. QPS Cos., 2007 WI App 14 (filed 19 Dec. 2007) (ordered published 31 Jan. 2007)

    Warr worked for a temporary employment agency, Cornwell, which placed him at a bakery. In 2003 Warr worked alongside Alanis, who had been placed at the same bakery by a different agency, QPS. While Warr was attempting to help Alanis fix the latter's machine, Alanis hit the wrong button and Warr's arm was crushed. Warr filed suit against Alanis and QPS, but the circuit court granted summary judgment in favor of the defendants on the ground that the exclusive remedy provision of the worker's compensation statute precluded coverage.

    The court of appeals, in an opinion written by Judge Wedemeyer, reversed. "The issue in this case is one of first impression. There is no existing case law directly addressing the factual scenario presented here: when two employees, who each work for separate temporary help agencies are both placed with the same client of the temporary help agencies, can the employee who is injured by the conduct of the other employee sue the latter's temporary help agency under a theory of respondeat superior" (¶ 9). The court concluded "that the current language of the worker's compensation statute does not prohibit Warr from filing a tort lawsuit against Alanis' employer, QPS, under the theory of respondeat superior. Under this theory, `an employer can be held vicariously liable for the negligent acts of its employees while they are acting within the scope of their employment.' Under that theory, Warr must prove that QPS and Alanis had a `master/servant relationship'" (¶ 14). Factual disputes precluded a summary judgment disposition.

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    Independent Contractor - "Affirmative" Negligence

    Danks v. Stock Building Supply Inc., 2007 WI App 8 (filed 7 Dec. 2007) (ordered published 31 Jan. 2007)

    Danks worked for C&R Concrete at a construction site. When Stock Building Supply learned that it had delivered the wrong size trusses to the site, it hired C&R to help load the trusses onto a Stock truck for removal from the site. Danks assisted in the lift. He suffered serious injuries when a truss broke as the C&R crane moved the truss to the Stock truck. Danks sued Stock and the truck driver. The circuit court granted summary judgment to the defendants, concluding that they were not negligent as a matter of law.

    The court of appeals, in an opinion authored by Judge Deininger, affirmed. Case law makes "clear that an owner is not liable to an employee of an independent contractor for its own negligent acts or omissions unless the owner's conduct constitutes affirmative negligence, i.e., `active misconduct' that increases the risk of harm to the employee" (¶ 25). "It is undisputed that the cause of the accident, and thus of Danks' injuries, was the improper one-point connection of the crane cable to the truss and, perhaps, the failure to employ a tag line during the lift, actions or omissions attributable solely to Danks and his employer" (¶ 31). In short, the Stock driver played no active role in these acts and omissions. "Nothing the driver did at the scene increased the risk that the truss would fail and injure Danks, and Stock's driver therefore committed no affirmative act of negligence as defined by Wisconsin case law" (¶ 32). The "driver's conduct was at most `passive misconduct'" (¶ 33). The same reasoning applied to Stock's alleged failure to properly train its drivers about safety in lifting trusses. Nor was Stock liable just because it had delivered the wrong-sized trusses to the job site; such conduct was "too remote from the accident as a matter of public policy" (¶ 36).

    Finally, "as an alternative theory of liability, Danks asserts that Stock is liable to Danks under Wis. Stat. § 895.045(2) because Stock and C&R acted `in accordance with a common scheme or plan.' The cited statute, under the caption `Concerted action,' provides that `if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action'" (¶ 38). This provision does not, however, create an independent cause of action. Rather, "§ 895.045(2) applies only after a judge or jury has determined, under applicable substantive law, that more than one tortfeasor is liable in some measure to the plaintiff. Subsection (2) simply modifies subsection (1) of the statute to provide that all defendants who are legally responsible for causing a plaintiff's damages, and who acted in concert in so doing, are jointly and severally liable for the plaintiff's damages, irrespective of whether a given defendant's apportioned causal negligence is less than 51%"(¶ 39).

    Concurring in the mandate, Judge Dykman concluded that Danks' claims were precluded by public policy.

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