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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.

    Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 2, February 2009

    Civil Procedure

    Motions to Dismiss – Summary Judgment

    Alliance Laundry Sys. LLC v. Stroh Die Casting Co., 2008 WI App 180 (filed 19 Nov. 2008) (ordered published 17 Dec. 2008)

    Alliance sued Stroh for breach of contract relating to defective products that Stroh had allegedly provided. Stroh responded with a motion to dismiss for failure to state a claim, which included a memorandum and affidavit relating to the contract’s terms, but Stroh did not answer the complaint. The circuit court’s notice of hearing alerted the parties that it “might” convert Stroh’s motion to dismiss into one for summary judgment. At the hearing a month later, the circuit court granted Stroh’s motion to dismiss and, in the alternative, also granted summary judgment in Stroh’s favor. Neither party had submitted any summary judgment materials other than memorandums before the hearing.

    The court of appeals affirmed in part and reversed in part in an opinion written by Chief Judge Brown. The first issue concerned whether the circuit court could properly hear a summary judgment motion before pleadings are complete. (Stroh had not filed its answer.) After a detailed discussion of pertinent federal rules, the court held that Wis. Stat. section 802.06(2)(b) “creates an exception to the general rule that pleadings must be complete before a court can rule on a summary judgment motion” (¶ 18). Alliance also complained that it had inadequate notice and therefore no “opportunity” to submit evidence before the hearing. “Alliance had the duty to protect itself by filing whatever affidavits and other materials it felt necessary to counter the information already provided to the circuit court by Stroh. While we acknowledge the burden this places on a party when the court says it may as opposed to will convert, and that it would be prudent for a circuit court to request additional materials, it is not the court’s duty to spoon-feed the requirements of Wis. Stat. § 802.06(2)(b) to a party’s attorneys. That Alliance did not request additional time under Wis. Stat. § 802.08(4) or attempt to file additional evidence during those three weeks before the hearing is entirely Alliance’s fault. We conclude that Alliance had reasonable notice” (¶ 24).

    The court reversed the grant of summary judgment, however, on the ground that there was a genuine issue of material fact regarding the contract terms (see ¶ 34). This discussion was necessarily fact-intensive and will not be described further.

    Offers of Settlement – Subrogated Claims

    Hadrian v. State Farm Mut. Auto. Ins. Co., 2008 WI App 188 (filed 25 Nov. 2008) (ordered published 17 Dec. 2008)

    Hadrian started this action to recover damages she sustained in an automobile accident caused by defendant Kuennen. Her complaint named the Foley & Lardner law firm as an “involuntary plaintiff” and alleged that Foley & Lardner had provided benefits to her under its “self-funded health insurance for its employees.” She further alleged that Foley & Lardner paid a portion of her medical bills and that the law firm was thus “entitled to reimbursement and/or subrogation under the laws of the State of Wisconsin” (¶ 2). State Farm was named as Kuennen’s insurer.

    Foley & Lardner filed its own complaint against Kuennen and State Farm and also filed a cross-claim against Hadrian. “[Foley & Lardner] alleged that it paid benefits for Hadrian under its self-funded Employee Retirement Income Security Act plan, and that it was, therefore, entitled to full reimbursement from Kuennen and State Farm, and, if necessary, reimbursement from Hadrian” (¶ 3).

    Hadrian served Kuennen and State Farm with an offer to settle. In its entirety, the offer stated as follows: “Pursuant to Section 807.01(3) of the Wisconsin Statutes, the Plaintiff hereby offers to settle the above entitled action for the sum of $350,000.00 including costs and disbursements” (¶ 4). Under Wis. Stat. section 807.01(3), the defendants had 10 days within which to accept the offer, but they did not do so.

    Hadrian’s action against the defendants was tried to the court. Other than filing its witness list, Foley & Lardner did not participate in the trial. The circuit court determined that Hadrian suffered $381,975.10 in compensatory damages and was entitled to an additional $12,000 in punitive damages. It entered judgment for those amounts plus costs and allowable interest, for a total of $413,743.77. The judgment further provided that Hadrian “shall be responsible for any and all subrogation liens including the lien of Involuntary [] Plaintiff, Foley & Lardner” (¶ 5). Responding to Hadrian’s request for extra costs under Wis. Stat. section 807.01(3) and (4), the circuit court held that the offer of settlement was insufficient because it did not on its face encompass Foley & Lardner’s subrogation lien and, therefore, the defendants could not ascertain from the document whether the $350,000 included or excluded the monies owed to Foley & Lardner (see id.).

    The critical issue on appeal was whether Hadrian’s offer of settlement was sufficient under section 807.01(3). In order to trigger the recovery of special costs and additional interest under this rule, “the party to whom the offer of settlement is made must be able ‘to fully and fairly evaluate the offer from his or her own independent perspective’” (¶ 8) (citation omitted).

    In a decision authored by Judge Fine, the court of appeals agreed with the circuit court that the offer of settlement was not enforceable (see ¶ 9). Said the appellate court, “Thus, as the circuit court recognized, when faced with the one-sentence offer of settlement that did not mention the claim of Foley & Lardner to which the defendants were subject, the defendants had no way of assessing whether: (1) the offer of settlement encompassed Foley & Lardner’s subrogated claim (thus making it an offer of settlement that included what Foley & Lardner had paid), or (2) the offer of settlement excluded Foley & Lardner’s subrogated claim (thus making it an offer of settlement that did not take into account what Foley & Lardner had paid)” (id.).

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    Criminal Law

    Using Computer to Facilitate Child Sex Crime – Wis. Stat. section 948.075 – Act Requirement – Transmission of Webcam Images

    State v. Olson, 2008 WI App 171 (filed 2 Oct. 2008) (ordered published 12 Nov. 2008)

    The statute prohibiting use of a computer to facilitate a child sex crime provides that it is a felony to “use[] a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of s. 948.02(1) or (2).” Wis. Stat. § 948.075. The statute further provides that “proof that the actor did an act, other than use a computerized communication system to communicate with the individual, to effect the actor’s intent [to have sexual intercourse or sexual contact] shall be necessary to prove that intent.” Id. (emphasis added).

    The state alleged that Olson (the defendant) violated this statute when, during a sexually explicit online chat session with a special agent posing as an eighth-grade girl, the defendant used a webcam to transmit to the agent live-streaming-video images of himself shirtless from the top of the chest up. The defendant moved to dismiss the charge, arguing that there was no evidence that he did any “act” of the type required by the statute quoted above. The circuit court denied the motion, and the defendant entered an Alford plea of guilty. He later sought to withdraw the plea because it lacked a factual basis. The circuit court denied the motion.

    In a decision authored by Judge Lundsten, the court of appeals reversed the circuit court. It concluded that the defendant’s video transmission of himself shirtless from the top of the chest up was not the type of act contemplated by the statute (see ¶ 1). Said the court, “We read the statute to require that, before the State may obtain a conviction under Wis. Stat. § 948.075, the defendant must have done an act to accomplish, execute, or carry out the defendant’s intent to have sexual contact with the individual with whom the defendant communicated. More significant for purposes of this decision, the statute requires that the act be something other than ‘us[ing] a computerized communication system to communicate with the individual’” (¶ 11).

    The defendant argued that his use of the webcam to transmit live video images of himself shirtless from the top of the chest up does not fit the act requirement because it was not an act other than “us[ing] a computerized communication system to communicate with” the special agent (see ¶ 12). The appellate court agreed. “We conclude that [the defendant’s] use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with [the special agent]. Consequently, we disagree with the circuit court and the State that [he] engaged in the type of act required under Wis. Stat. § 948.075(3) by transmitting that video” (¶ 16).

    (Editors’ Note: The court stressed that it may be possible to use a communication function of a computer to engage in an act within the meaning of the statute, and it provided some examples of those situations but did not resolve them (see ¶ 18). The court also remarked that “to the extent the State is concerned that people like [the defendant] use computers to transmit inappropriate material to actual children, we note that other criminal statutes are directed at such conduct. See Wis. Stat. § 948.11 (exposing a child to harmful material or harmful descriptions or narrations); Wis. Stat. § 948.055 (causing a child to view or listen to sexual activity)” (¶ 19).)

    Lastly, the appellate court rejected the opinion of the circuit court that evidence of the defendant’s previous sexual encounters with other women he met online satisfied the act requirement of the current prosecution (see ¶¶ 24-25).

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    Criminal Procedure

    Truth-in-Sentencing – Consecutive Bifurcated Sentences – Revocation of Extended Supervision

    State v. Collins, 2008 WI App 163 (filed 9 Oct. 2008) (ordered published 12 Nov. 2008)

    The defendant was given a bifurcated sentence consisting of two years of initial confinement followed by three years of extended supervision on a charge of false imprisonment. One month later he was given a bifurcated sentence consisting of one year of initial confinement followed by three years of extended supervision on a sexual assault charge. The defendant was ordered to serve these sentences consecutively.

    In February 2005, the defendant completed the confinement portion of these sentences and was released to extended supervision. In October 2006, the Department of Corrections revoked his extended supervision. The judge who sentenced him in the false imprisonment case ordered reconfinement for two years. The judge in the sexual assault case ordered a one-year reconfinement in that matter. The defendant challenged the latter reconfinement, arguing that he was not on extended supervision for the sexual assault at the time his supervision was revoked. (He claimed he was serving his term of extended supervision for the false imprisonment at the time of revocation but had not yet begun extended supervision for sexual assault and therefore could not be revoked and reconfined for the sexual assault.)

    In a decision authored by Judge Dykman, the court of appeals affirmed. It concluded that “the plain language of Wis. Stat. §§ 302.113(4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences” (¶ 6). “Under § 973.15(2m)(b)2., consecutive determinate sentences, as the sentences are in this case, require that ‘the person sentenced shall serve the periods of confinement in prison under the sentences consecutively and the terms of extended supervision under the sentences consecutively and in the order in which the sentences have been pronounced.’ Finally, under Wis. Stat. § 302.113(4), ‘[a]ll consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. The person shall serve any term of extended supervision after serving all terms of confinement in prison’” (¶ 7).

    In sum, “According to the plain language of Wis. Stat. § 302.113(4), two consecutive periods of extended supervision are computed as one continuous period. Thus, both may be revoked upon violation of the conditions imposed” (¶ 13) (internal quotes omitted).

    Habitual Criminality – Proof of Repeater Status “Post-trial”

    State v. Kashney, 2008 WI App 164 (filed 1 Oct. 2008) (ordered published 12 Nov. 2008)

    The state charged the defendant with multiple crimes and further alleged that he was a habitual criminal under Wis. Stat. section 939.62 by virtue of his record of prior convictions. The repeater evidence was submitted “after the jury returned the guilty verdicts and had left the courtroom, but before the court had rendered judgment on the verdicts and concluded the trial” (¶ 1). At sentencing the court applied the repeater enhancement to two of the convictions.

    On appeal, one issue was the timing of the state’s submission of the habitual criminality evidence. In State v. Saunders, 2002 WI 107, 255 Wis. 2d 589, 649 N.W.2d 263, the Wisconsin Supreme Court stated that evidence of repeater status may not be submitted until “post-trial.” Relying on this decision the defendant in the present case argued that the state may offer its repeater evidence only after the court has pronounced judgment following the trial (see ¶ 6).

    In an opinion authored by Chief Judge Brown, the court of appeals rejected the defendant’s argument. It concluded that post-trial means “as early as ‘immediately after the verdict’ and as late as ‘any time before actual sentencing.’ Saunders, 255 Wis. 2d 589, ¶¶ 48, 43 n.19. This way, the evidence will not prejudice the decision maker, and the defendant can still challenge the evidence prior to sentencing” (¶ 12). Accordingly, because the habitual criminality evidence in this case was submitted after the jury returned its verdict and was thus post-trial, the trial judge could properly use it in imposing sentence on the defendant.

    Search Warrant for Residential Premises – Sufficiency of Probable Cause to Support the Warrant

    State v. Casarez, 2008 WI App 166 (filed 15 Oct. 2008) (ordered published 12 Nov. 2008)

    Witnesses observed a vehicle leaving the scene of a tavern shooting, and police officers stopped the vehicle a short time later. The car had three occupants: defendant Casarez was in the driver’s seat; his wife, Sosa, was in the front passenger seat; and Cornelius was in the back passenger-side seat. The officers discovered a .45-caliber Smith & Wesson semi-automatic handgun under the front passenger seat. Sosa told the police that at the time the car was stopped by the officers, Cornelius stated that he had heat (a street term for a weapon). According to Sosa, Cornelius passed the gun to Casarez, who then gave it to Sosa, who then placed the gun under her seat. Casarez was arrested after the weapon was discovered.

    The next day, the police obtained a search warrant for Casarez’s home. The objects sought included “the location of ammunition, gun cleaning products, receipts related to the purchase and possession of firearms, ammunition, gun case, and other evidence relating to establishing dominion and control in the possession of firearm(s) by” Casarez (¶ 13). In authorizing the warrant the court commissioner determined that the affidavit contained sufficient facts to support a finding of probable cause to believe that officers would locate ancillary materials relating to the gun used in the tavern shooting and information as to the gun’s ownership (see ¶ 11).

    When officers executed the warrant, they found cocaine. The state charged the defendant with possession of cocaine (15 to 40 grams) with intent to deliver. Casarez pleaded not guilty and filed a motion seeking to suppress the cocaine on the basis that the affidavit filed in support of the search warrant failed to establish probable cause. He conceded that the affidavit established probable cause that he committed a crime but he contended that the affidavit failed to establish probable cause to believe that evidence of the crimes involved would be found at his residence. He argued that there was no connection between the alleged crimes and his residence. The trial court denied the motion to suppress, and a jury convicted Casarez. He appealed, claiming that the trial court erred in denying the motion to suppress.

    In a majority opinion authored by Judge LaRocque, the court of appeals affirmed. It found that the affidavit in support of the search warrant contained sufficient facts to establish probable cause that ancillary materials relating to guns would be discovered at the home. “We conclude that the objects sought related directly to both crimes [first-degree recklessly endangering safety while armed and felon in possession of a firearm] as both involved a firearm. Although the police could have stopped the investigation at the point of recovery of the weapon and arrest of Casarez, they were not required to cease their investigation…. Under the circumstances here, it was reasonable for the police to continue the investigation. Although the police had recovered the gun and apprehended potential suspects of the shooting, the fact that there were three individuals in the car when the gun was recovered presented potential issues with proof of who committed the crime. The witnesses had described Casarez as the shooter, but the gun was found under the seat of Sosa. Sosa told police that Cornelius was the one who had the gun and passed it forward when the police stopped their car. Given the standard of proof, requiring the State to prove its case beyond a reasonable doubt, it was not unreasonable for the police to seek further evidence to prove the crimes being investigated” (¶¶ 14-15).

    The court further concluded that the affidavit in support of the search warrant contained a reasonable inference to connect the items sought with the residence searched. It reaching this conclusion, it looked to the Wisconsin Supreme Court’s longstanding precedential standards on probable cause, as set forth in State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517: “Where there is evidence that would lead a reasonable person to conclude ‘that the evidence sought is likely to be in a particular location,’ there is probable cause for a search of that location, even if it may also be reasonable to conclude that the evidence may be in a second or third location as well.” In Ward, the supreme court held that if a reasonable inference can be drawn linking the evidence to the home searched, the appellate court will affirm the probable cause determination. The inference need not be the only inference that can be drawn, but it must be a reasonable inference (see ¶ 19). Based on the totality of the circumstances in the present case, one reasonable inference was that the ancillary materials sought in the search warrant would be found at Casarez’s home. It is reasonable to infer that if Casarez were the shooter and the gun belonged to him, he would have at his residence additional ammunition and other gun-related materials (see ¶ 20). Accordingly, the majority concluded that the trial court did not err in denying the motion to suppress.

    Casarez asserted that an affirmance in this case would create a dangerous precedent allowing the search of an individual’s home whenever contraband is located in a vehicle. The appellate court disagreed. Each case is evaluated on the facts and circumstances specific to that case. Said the court, “The holding in this case does not create a bright line rule, which will justify a home search every time contraband is found in a car, or on a person, and should not be interpreted as such” (¶ 16). 

    Judge Curley filed a dissenting opinion.

    Not Guilty by Reason of Mental Disease or Defect – Sufficiency of Evidence to Support Order for Institutional Care – Standard of Appellate Review

    State v. Wilinski, 2008 WI App 170 (filed 7 Oct. 2008) (ordered published 12 Nov. 2008)

    When a person is found not guilty by reason of mental disease or defect, a court must issue an order specifying whether the person will be committed to institutional care or placed on conditional release. Wis. Stat. § 971.17(3)(a). The court must “order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage.” Id. However, “if the court does not make this finding, it shall order conditional release.” Id. In determining whether a person poses significant risk to himself or herself, others, or property, the court may consider “the nature and circumstances of the crime, the person’s mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.” Id.

    In this case the defendant was found not guilty by reason of mental disease or defect, and the circuit court issued an order of commitment for institutional care. On appeal the defendant argued that the circuit court’s finding that he would pose a significant risk of bodily harm to himself or others if he were placed on conditional release was not supported by sufficient evidence. The court of appeals disagreed and, in a decision authored by Judge Peterson, affirmed the circuit court’s order.

    The appellate court first considered the standard for reviewing a circuit court’s order for commitment under section 971.13(3)(1). This is a matter of first impression. The court of appeals was persuaded that it should review such orders “under a sufficiency of the evidence standard” (¶ 11).

    Applying that standard the appellate court concluded that the order of commitment was supported by sufficient evidence. “The level of certainty required by Wis. Stat. § 971.17(3)(a) is clear and convincing evidence. Although this requires certitude greater than preponderance of the evidence, absolute certainty is not required” (¶ 18) (citation omitted). In this case the circuit court considered inter alia the nature of the defendant’s offense, his mental history, and the services available if he were released. It concluded that the services necessary to ensure that the defendant would not pose a significant risk of harm were not available for the time period needed or in the location he would ultimately be placed (see ¶ 9). The appellate court concluded that on this evidence the circuit court “could reasonably be convinced by clear and convincing evidence that [the defendant] would pose a significant risk of bodily harm to himself or others if released”
    (¶ 18).

    The defendant argued that the deficiency of the proposed services available to him is not evidence that he would pose a significant risk of harm. The state responded that the availability of such services is not simply a prospective detail but is a statutorily enumerated factor the court should consider. The court of appeals agreed (see ¶ 17).

    Arrest – Search – Cell Phone

    State v. Carroll, 2008 WI App 161 (filed 28 Oct. 2008) (ordered published 12 Nov. 2008)

    The issue in this case concerns the lawfulness of a police search of the defendant’s cell phone. Law enforcement agents were conducting surveillance when the defendant drove by, apparently saw them, and sped off before he was stopped at a gas station. At gunpoint, the defendant was ordered to drop an object he was holding; the object turned out to be his cell phone. An agent observed that the open cell phone had a picture of the defendant smoking pot. Agents later scrolled through the phone’s images and observed pictures of guns, drugs, and the defendant. When the phone rang several times, an agent answered it, pretended to be the defendant, and listened to callers ordering controlled substances. The agents later secured a search warrant so that they could retrieve the electronic images on the cell phone. The state then charged the defendant with being a felon in possession of a firearm. The circuit court suppressed the cell phone images on the ground that they arose from an unlawful search.

    The court of appeals reversed in an opinion written by Judge Kessler.

    The court declined to address whether the police had authority to search the cell phone’s photo images based on the search being incident to a lawful arrest. Instead, it first determined that sufficient lawful evidence, particularly the telephone conversations that police officers had with unwitting callers placing orders for drugs, supported the search warrant application (see ¶ 21). Second, the officers had lawfully seized the cell phone when the calls came in. Although officers might not have specifically told the defendant that he was under arrest, a reasonable person under the circumstances would have considered himself in custody (see ¶ 26).

    Third, officers properly answered the in-coming cell phone calls. “The detective was legally in possession of the cell phone when it rang because, as we have explained, it had been seized pursuant to a search incident to arrest. At the time it rang, the detective had probable cause to believe that Carroll may be involved in drug use because the detective had observed a photo of Carroll in plain view, smoking what appeared to be a marijuana blunt. Based on the detective’s training and experience, the detective was aware (as he stated in his affidavit for the search warrant), that ‘[d]rug traffickers frequently take, or cause to be taken, photographs of themselves, their associates in the drug trade, property acquired from the distribution of drugs and such photographs are often [used to] personalize cellular telephones with such information.’ It would have been impossible to obtain a warrant prior to answering the call. Under these circumstances, we conclude that it was not unreasonable for the detective to ‘seize that evidence [of the incoming call] without a warrant before it disappeared’” (¶ 29).

    Truth-in-Sentencing – Reconfinement Hearings – Power of Court to Add Additional Conditions of Extended Supervision

    State v. Harris, 2008 WI App 189 (filed 25 Nov. 2008) (ordered published 17 Dec. 2008)

    The defendant pleaded guilty to substantial battery and received a bifurcated sentence consisting of two years of initial confinement followed by two years and six months of extended supervision. After serving the term of confinement he was released on extended supervision. He did not comply with the terms of release, and his extended supervision was revoked. The circuit court held a reconfinement hearing and ultimately ordered that the defendant be reconfined in prison for all but four months of the time remaining on his sentence. The court ordered that those last four months be served on extended supervision and added a new condition of supervision – a no-contact order with the victim of an act of domestic violence, whose battery by the defendant was the primary reason for revocation of the defendant’s original term of extended supervision.

    On appeal the defendant argued that the circuit court did not have the authority to impose a new condition of extended supervision as part of a reconfinement proceeding. In a decision authored by Judge Fine, the court of appeals affirmed the decision of the reconfinement court. Said the court of appeals, “Although it is true that there is nothing that says in haec verba that the reconfinement court may impose a condition of extended supervision that was not imposed by the original sentencing court (unless the Department or the defendant seeks a modification of the extended-supervision conditions, see Wis. Stat. § 302.113(7m)(a) (The defendant ‘or the department may petition the sentencing court to modify any conditions of extended supervision set by the court.’)), the statutes read as a whole clearly give the reconfinement court that authority because they do not prohibit it and that authority is essential to the fulfillment of the dual legislative (and judicial) goal that: (1) the public be protected from a criminal’s further predations; and (2) the criminal be helped with his or her rehabilitation” (¶ 7).

    In sum the appellate court concluded that “the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement” (¶ 10). “There is nothing in either the statutes or in the legislative history that reveals the smallest quantum of intent to deprive the reconfinement court of the authority to set new conditions in connection with the extended-supervision part of the reconfinement order, especially when those conditions are consistent with the original sentencing scheme and are needed to both protect the public and to enhance the chances of the defendant’s rehabilitation” (¶ 22).

    Judge Kessler filed a dissenting opinion. While agreeing with the majority’s implicit determination that the new condition of extended supervision imposed by the reconfinement court was reasonable and appropriate, Judge Kessler “disagree[d] that the plain language of the applicable statutes and applicable case law authorizes a reconfinement court to impose new conditions of extended supervision”
    (¶ 24).

    Indigent Defendants – Power of Circuit Court to Appoint Counsel When Defendant Does Not Qualify for State Public Defender Representation – Procedures for Appointment of Counsel

    State v. Kennedy, 2008 WI App 186 (filed 25 Nov. 2008) (ordered published 17 Dec. 2008)

    “There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender [‘SPD’]. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender ‘to deal with the appointment of counsel for indigent defendants.’ Pirk [v. Dane County, 175 Wis. 2d 503, 506, 499 N.W.2d 280 (Ct. App. 1993)]. The second avenue emerges only after a defendant has been found ineligible by the SPD and rests in the inherent power of the court. See State v. Dean, 163 Wis. 2d 503, 512-13, 471 N.W.2d 310 (Ct. App. 1991). If a criminal defendant has been found ineligible by the SPD statutory standards for the appointment of counsel, the trial court may, in its discretion, invoke its inherent authority and appoint counsel at county expense when ‘the necessities of the case and the demands of public justice and sound policy require appointing counsel to protect the defendant’s constitutional right to counsel.’ Id. at 513 (citation omitted)” (¶ 10) (internal quotes omitted).

    In this case the court of appeals addressed the appointment process under Dean and the procedures to be followed when a defendant does not cooperate with the SPD in the determination of his or her eligibility for an SPD appointment. In a decision authored by Judge Brennan the court “emphasize[d] that the procedures set forth in Dean by this court suggest that the inherent power of the circuit court shall be exercised to cover situations where a defendant cooperated with the SPD’s financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case, public justice, and sound policy is in fact ‘indigent.’ A defendant may be found ineligible by the SPD, but still demonstrate he/she is unable to retain and pay for private counsel. If that is the case, the circuit court shall consider all relevant information submitted, on a case-by-case basis, to decide whether the defendant truly is indigent and whether counsel should be appointed at county expense” (¶ 27) (citations omitted).

    “The inherent power of the court should not be invoked when a defendant fails to seek SPD appointment, fails to cooperate with the SPD for the indigency assessment, or fails to submit the required information to make a proper assessment. In other words, the first step for a defendant in seeking appointment of counsel based on inability to pay must be with the SPD. A defendant must fully and timely cooperate with the SPD so that it can make an accurate determination of eligibility. The inherent authority of the circuit court is not intended to replace the SPD appointments. Rather, it is intended to cover those circumstances where a defendant does not satisfy the legislatively created SPD criteria for appointment, but still demonstrates indigency” (¶ 28).

    Mail Search – Miranda Waiver

    State v. Cole, 2008 WI App 178 (filed 13 Nov. 2008) (ordered published 17 Dec. 2008)

    The defendant was convicted of battery and intimidating a witness. He appealed the court’s denial of two suppression motions. One concerned an intimidating letter he wrote to the victim that, by happenstance, was intercepted by police because of an erroneous address on the envelope. The second motion concerned whether Cole had waived his Miranda rights before making incriminating statements.

    The court of appeals conditionally reversed the circuit court and remanded the case for further proceedings. Judge Vergeront wrote the opinion. The court first held that Cole’s intimidating letter was not the subject of an unlawful search. Although Cole had placed the victim’s name on the envelope, he inadvertently sent the letter to the address of a police detective, who opened it and read the contents. In so doing, the detective was not acting in her official capacity; hence, no search occurred. “The activity she was engaged in when she opened Cole’s letter – opening mail that had been delivered to her home – was that of a private citizen. Even given our assumption that she saw the front of the envelope before she opened it and so knew it was not intended for her, she did not know Willie Cole or Charnaye Cole or have reason to suspect that she might discover criminal activity by opening the letter. There is no evidence she was aware of any pending case or investigation relating to Cole when she opened the letter” (¶ 19).

    On the issue of the Miranda waiver, the court reversed and remanded the case for a hearing at which the trial judge was instructed to apply the correct waiver standard. The error involved the allocation of the burden of proof. Relying on long-established doctrine, the court of appeals held that the state bears both the burden of producing evidence and the burden of persuading the court that the defendant waived his or her Miranda rights by a preponderance of the evidence (see ¶ 35). The defendant must first timely raise the issue, which Cole did. These basic principles extend to the specific situation involved here, namely, one in which the defendant “asserts he previously invoked his right to counsel as a basis for invalidating a later waiver” (¶ 38). The court of appeals was persuaded “that placing the burden on the State to show a prior waiver of this right, where the defendant has timely raised the issue, is more consistent with the principles established in existing case law” (id.). The circuit court erred by placing the burden on Cole to prove that he had invoked the right to counsel (see ¶ 40).

    Search Warrants – “Scrivener’s Errors” – Exigent Circumstances – Attenuation of Taint

    State v. Rogers, 2008 WI App 176 (filed 12 Nov. 2008) (ordered published 17 Dec. 2008)

    Police officers searched a car and a house pursuant to search warrants. The trial judge suppressed evidence recovered in both searches. The search warrant for the car identified the wrong automobile. The search of the home followed an unlawful entry by certain police officers, who watched television for two hours before other officers arrived with the search warrant.

    The court of appeals reversed in an opinion written by Chief Judge Brown that confronted “two novel issues” for Wisconsin courts. As to the search warrant for the car, the supporting affidavit accurately described the suspect’s car and contained probable cause. The warrant itself incorrectly described the car in two places. “First it identified a completely different car, then the correct car with two incorrect numbers in the license plate. The executing officer stated that the mistakes were a scrivener’s error from copying the information from an old search warrant” (¶ 16). The court held that “the mistakes on the face of the warrant are a technical irregularity under Wis. Stat. § 968.22 and that the warrant meets the Fourth Amendment standard of reasonableness. When the executing officer has personal knowledge and attaches and incorporates an affidavit with the correct information, a magistrate may conclude that there is no reasonable probability that the officers will search the wrong premises. Accordingly, the officers’ seizure of cocaine evidence from Rogers’ car and their subsequent search of Rogers’ person were pursuant to a valid search warrant” (¶ 17).

    As to the search of the home, the court held that the “initial entry and protective sweep of Rogers’ residence was an unlawful, warrantless entry because no exigent circumstances were present” (¶ 20). The officers acted on a “hunch” that Rogers’s brother was calling home to destroy evidence. “Entering Rogers’ residence based on just that guess, after confronting an elderly woman who needs oxygen and uses a walker, and seeing no other person in the residence, was not warranted. The officers could have used a less intrusive method by controlling who entered and exited the residence without actually entering and remaining in the residence” (id.). On the facts before it the court nonetheless found attenuation between the unlawful entry and the search for and seizure of evidence, which were conducted pursuant to a valid search warrant for the home. “Had the search been conducted as a result of the illegal entry or had the protective sweep been just a pretext for a search for contraband, or had the police used information from the illegal entry to obtain the search warrant, this would be a different case” (¶ 22).

    Discovery – Privileged Records

    State v. Kletzien, 2008 WI App 182 (filed 4 Nov. 2008) (ordered published 17 Dec. 2008)

    The defendant pleaded no contest and was convicted of homicide by intoxicated use of a vehicle and related charges. The circuit court denied his postconviction motion seeking discovery materials that he claimed might show whether the driver of the other vehicle may have been partially responsible for the collision.

    The court of appeals affirmed in an opinion written by Judge Curley. The issue concerned the defendant’s demand for an in-camera review of the third party’s medical and toxicology records. In-camera review of such records is governed by the Shiffra-Green line of cases. See State v. Shiffra, 175 Wis. 2d 600, 499 N.W. 2d 719 (Ct. App. 1993); State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. There was “no evidence to suggest” that the other driver was impaired at the time of the accident. Nor was there any evidence that a “toxicology report even exists.” Thus, the defendant “did not meet his burden of setting forth a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information that is necessary to a determination of guilt or innocence and the request was properly denied” (¶ 14).

    The court also rejected on a variety of grounds the claim that the defendant was entitled to an evidentiary hearing. He did not make the required preliminary showing that the sought-after evidence is relevant to an issue in the case (see ¶ 15). Nor did he show that the state had violated its duties under Wis. Stat. section 971.23. Case law controlling postconviction discovery demands also failed to support his claim. The hearing he sought was little more than a “fishing expedition” to determine whether exculpatory testing was “even possible!” (¶ 19). Finally, “existing test results” either refuted his “speculative theories outright or show that no further testing would be productive” (¶ 21).  

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    Evidence

    Expert Testimony – Credibility

    State v. Krueger, 2008 WI App 162 (filed 1 Oct. 2008) (ordered published 12 Nov. 2008)

    The defendant was convicted of sexually assaulting a young child. The court of appeals reversed in an opinion written by Judge Neubauer. The court of appeals found that the defendant’s trial counsel had rendered ineffective assistance of counsel.

    At trial the state offered testimony by a social worker that described her interview of the seven-year-old victim. Because the defense had suggested in its opening statement that the child had been coached or improperly influenced by her mother, the state countered with the social worker’s conclusion that the child, in effect, lacked the sophistication necessary to maintain a fabricated story with consistency. The defense did not object to her testimony.

    A line of cases starting with State v. Jensen, 147 Wis. 2d 240, 257, 432 N.W. 2d 913 (1988), permits expert opinion testimony regarding whether a child’s behavior was consistent with that of children known to have been sexually assaulted. The evidence may be used only to disabuse a jury about common misconceptions about victims’ behavior; in no event may the expert opine that the victim is being truthful or that a crime occurred. The court of appeals said that logic supported Jensen’s extension to “permit expert testimony on typical signs of whether a child has been coached or evidences suggestibility and whether the complainant child exhibits such signs. Both address behavioral manifestations of external influences or events impacting upon the complainant” (¶ 14).

    Reversible error occurred, however, when the social worker strayed beyond these boundaries and in effect told the jury that the victim was telling the truth (see ¶ 16). This was especially problematic because there was no corroboration of the victim’s testimony (see ¶ 18). “While opinion testimony regarding the typical signs, symptoms or behavior of a child who is not being coached or manipulated along with testimony that the child in question exhibits none or few of those signs or symptoms may be permissible under Wis. Stat. § 907.02, Haseltine and Jensen make clear that opinion testimony as to a particular child may not cross the line by including a subjective determination as to the credibility of the complainant. An opinion that the child’s allegations are or are not the result of coaching or suggestion is inadmissible, as it does not assist the jury to understand the evidence or determine a fact in issue” (¶ 19).

    Recorded Statements – Trial Transcripts

    State v. Ruiz-Velez, 2008 WI App 169 (filed 28 Oct. 2008) (ordered published 12 Nov. 2008)

    The defendant was convicted of sexually assaulting a young child, whose recorded audiovisual statement was admitted under Wis. Stat. section 908.08. The court of appeals granted this appeal from a nonfinal order and held that the official court reporter must transcribe the audiovisual recording. The trial court had ruled that no official transcription was necessary because the recording had been received as an exhibit.

    Judge Fine wrote the court’s opinion. The court held that a child’s oral statement recorded and admitted under section 908.08 “is the testimony of that child, supplemented by in-court testimony as provided by Rule 908.08(5), irrespective of whether that ‘oral statement’ is ‘sworn’” (¶ 5). “Significantly, and reinforcing our analysis, SCR 71.01(2) requires that ‘[a]ll proceedings in the circuit court shall be reported,’ with exceptions not material. (Emphasis added.) ‘Reporting’ means making a verbatim record. SCR 71.01(1). Supreme Court Rule 71.01(2)’s all-encompassing command ends our analysis. The postconviction circuit court erred in denying Ruiz-Velez’s motion to have the official court reporter transcribe the audiovisual recordings received into evidence under Wis. Stat. Rule 908.08. We reverse and remand with directions that the recordings be transcribed by the official court reporter” (¶ 6) (footnote omitted).

    Expert Opinions – Confrontation

    State v. Swope, 2008 WI App 175 (filed 19 Nov. 2008) (ordered published 17 Dec. 2008)

    Swope was convicted of murdering his parents, whose mummified bodies were discovered long after their deaths. At the trial the state called an FBI expert who testified that both victims had died of homicidal asphyxiation, not of natural causes. The FBI expert’s opinion was based in part on conversations with other experts who did not testify.

    The court of appeals affirmed in an opinion written by Judge Anderson. Swope argued that the FBI agent’s “death scene” analysis was simply “junk science” that should have been excluded. In Wisconsin courts, unlike federal courts, expert opinion testimony is subject to the relevancy test. The testimony is admissible if (1) the witness is shown to have specialized knowledge (qualified), (2) the testimony is relevant, and (3) the testimony will help the trier of fact in determining a fact in issue (see ¶ 18). The testimony was relevant: “A central issue in this case was the cause of the Recobs’ deaths.... Because of the decomposition of the bodies, his help in determining a cause of death was critical to the success of the investigation. His conclusion that the deaths were homicide and that it was improbable that they were brought about by simultaneous natural causes establishes a consequential fact” (¶ 21). The witness also was shown to have specialized knowledge based on his education and extensive experience, which included publications about his work. Finally, the testimony assisted the jury in resolving whether the deaths were natural or a homicide. For example, he discussed the deliberate “staging” of the bodies in the home as consistent with homicide.

    Nor did the FBI agent’s testimony violate Swope’s confrontation rights. The witness referred to conversations he had with experts at Harvard and the Centers for Disease Control and Prevention regarding the odds of both members of a couple “dying simultaneously from natural causes” (¶ 32). As an expert, the witness reasonably relied on these statements as provided by Wis. Stat. section 907.03 and case law, which also has held that this procedure is consistent with the confrontation right (see ¶ 37).

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    Insurance

    Umbrella Policies – UM Coverage

    Etter v. State Farm Mut. Auto. Ins. Co., 2008 WI App 168 (filed 15 Oct. 2008) (ordered published 12 Nov. 2008)

    Etter, a police officer, was killed while on duty when another driver deliberately rammed Etter’s squad car. The other driver was later deemed an “uninsured driver” because his intentional act fell outside his policy’s liability coverage. Etter carried uninsured motorist (UM) coverage under his liability policy and a separate personal liability umbrella policy. The issue in this case involved whether the umbrella policy also conveyed UM coverage of $1 million, as claimed by Etter’s survivors. The circuit court declared the umbrella policy ambiguous with respect to the UM coverage and granted summary judgment against State Farm, the carrier.

    The court of appeals reversed in an opinion authored by Judge Peterson. First, the umbrella policy was not ambiguous on this point. The umbrella policy was a personal liability policy that “covers the insured’s obligations to others,” whereas “UM coverage pays damages the insured is entitled to collect from others. Thus, there should be no confusion about what the policy meant when it stated it provided personal liability coverage” (¶ 14). Read as a whole, the policy revealed no ambiguities by any reasonable construction (see ¶ 15). Second, Wis. Stat. section 632.32(4)(a) does not require personal liability umbrella policies to include UM coverage. Instead, Wis. Stat. section 631.01(5) “permits the Commissioner [of Insurance] to exempt insurers from including UM coverage in umbrella policies. The Commissioner did just that with Wis. Admin. Code § INS 6.77(4)(a). The Etters’ policy was not required to provide UM coverage” (¶ 20).

    Exclusions – UM Coverage

    Nischke v. Aetna Health Plans, 2008 WI App 190 (filed 4 Nov. 2008) (ordered published 17 Dec. 2008)

    Nischke was injured in an accident while driving her mother-in-law’s car. The driver at fault was uninsured. Nischke claimed uninsured motorist (UM) coverage under two policies: (1) an American Family policy that covered the car she was driving and (2) a policy issued by Partners Mutual that covered Nischke’s own car. The circuit court granted summary judgment in favor of Partners based on its policy’s “drive other car” exclusion.

    The court of appeals affirmed in an opinion written by Judge Hoover. The issue turned on the court’s construction of Wis. Stat. section 632.32(5)(e) and Blazekovic v. City of Milwaukee, 2000 WI 41, 234 Wis. 2d 587, 610 N.W.2d 467, which held that the statute requires a two-part test for scrutinizing allowable exclusions. “First, we look at § 632.32(6) and determine whether the exclusion fits one of the prohibitions. If it does, the exclusion is invalid and the analysis terminates. If the exclusion is not invalid under sub. (6), we look to see if any ‘other applicable law’ prohibits it” (¶ 7). The court of appeals observed an “arguable conflict between Wis. Stat. §§ 632.32(5)(j) and (6)(b)2.a” that the Blazekovic court may have “simply glossed over” because of the parties’ concessions in that case. The question here was “whether ‘the drive other car’ exclusion in this case complies with Wis. Stat. § 632.32(5)(j). If it does, the exclusion is valid. If not, the exclusion fails under the second Blazekovic prong” (¶ 13).

    The exclusion satisfied the statute. “First, applying the exclusion to these facts, the exclusion is consistent with the statute. The loss arose from Nischke’s occupation – her use – of a motor vehicle (1) owned by a relative of named insured, living in the named insured’s household; (2) not described in the policy; and (3) not covered as a newly acquired or replacement car. In fact, Nischke conceded as much below. It is irrelevant whether, had Nischke been a pedestrian struck by Barron, the ‘drive other car’ exclusion would not apply; it is always possible to imagine a set of facts where an exclusion is inapplicable, but we do not decide cases on hypothetical facts” (¶ 16). “More significantly, though, the insurance policy has a savings clause, which states, ‘Terms of this policy which are in conflict with the Wisconsin Statutes are changed to conform to those statutes.’ Thus, if we were to conclude the ‘drive other car’ exclusion in this policy is overbroad, we could constrict it to comply with the statute. Again, however, under the present facts, such judicial construction is unnecessary” (¶ 17).

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    Motor Vehicle Law

    Impaired Driving and Operating After Revocation – Circumstantial Proof of Vehicle “Operation” and “Highway” Driving

    State v. Mertes, 2008 WI App 179 (filed 26 Nov. 2008) (ordered published 17 Dec. 2008)

    Police officers responded to a report of two individuals passed out or asleep inside a vehicle located at a service station in a Milwaukee suburb. On arrival the officers found the defendant Mertes asleep behind the wheel; the vehicle’s engine was off but the parking lights and interior dash lights were on. Though the defendant denied driving, he did indicate that he was coming from Milwaukee and was heading back to Milwaukee. Based on physical indicia of intoxication, the officers arrested the defendant for OWI (fifth or subsequent offense). They also arrested him for operating after revocation (first offense). A jury convicted him on both charges (the impaired driving conviction actually being for operating with a detectable amount of a restricted controlled substance in the blood).

    On appeal the defendant argued that the evidence adduced at trial was insufficient to establish either that he had operated the vehicle or that he had operated the vehicle on a highway after the revocation of his driving privileges. Viewing the evidence in a light most favorable to the verdict, the court of appeals, in an opinion authored by Judge Neubauer, concluded that there was sufficient circumstantial evidence on which the jury could determine that the defendant had operated the vehicle and had done so on a highway (see ¶ 1).

    With regard to vehicle operation, the court began by noting that the issue in this case was not whether the defendant was operating the vehicle at the moment the police approached him but instead whether there was enough circumstantial evidence to prove that he drove the car to the gas station. “We believe that even absent a running motor, the jury was entitled to consider the circumstantial evidence in this case to determine how and when the car arrived where it did and whether it was [defendant] Mertes who operated it” (¶ 16). The court concluded that the circumstantial evidence – “the presence of the vehicle at the gas station, Mertes’ presence behind the wheel, his responses during questioning, the unlikelihood of the passenger’s ability to have operated the vehicle due to his incoherent condition and the absence of any evidence that the passenger was the driver” – was sufficient to sustain the jury’s conclusion that the defendant operated the vehicle (see ¶ 17).

    As for the operating after revocation (OAR) charge, the state had to prove that the defendant drove his vehicle on a highway. On appeal the defendant challenged whether a gas station parking lot qualifies as a highway under the OAR law. Said the appellate court, “[The defendant] does not dispute, and could not dispute, that the roads leading to the gas station are indeed ‘highways’ as defined by Wis. Stat. § 340.01(22). Having concluded that the circumstantial evidence was sufficient to support the jury’s verdict that Mertes operated a motor vehicle, we likewise conclude that the same evidence is sufficient to support a finding that he had done so on a highway prior to arriving at the gas station” (¶ 19).

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    Sexually Violent Persons

    Reexaminations – Hearings

    State v. Arends, 2008 WI App 184 (filed 19 Nov. 2008) (ordered published 17 Dec. 2008)

    Arends was committed as a sexually violent person under Wis. Stat. chapter 980 in 2005. In 2007 he petitioned for discharge on the ground that his condition had changed and he no longer fit the chapter 980 commitment criteria. The circuit court denied the petition without a hearing because it found no probable cause.

    The court of appeals reversed in an opinion written by Judge Snyder. “The legislature has revised Wis. Stat. § 980.09 to eliminate the probable cause standard that guided a court’s review of a committed person’s petition for discharge. The new procedure requires a court to order an evidentiary hearing if the petition alleges facts from which a judge or jury may conclude that there is a change in the person’s condition since the date of initial confinement so that the person no longer meets the commitment criteria. See § 980.09. Here, the circuit court chose not to hold a hearing to make that determination and, upon its own review of the reexamination and treatment progress reports, denied the petition. As indicated by the analysis above, Arends’ petition is supported by facts from which a judge or jury may conclude his condition is changed and thus he is entitled to an evidentiary hearing on his petition. Accordingly, we reverse the order of the circuit court and remand for further proceedings” (¶ 26).

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    Torts

    Wrongful Death – Parents – Heirs

    Lamers v. American Hardware Mut. Ins. Co., 2008 WI App 165 (filed 29 Oct. 2008) (ordered published 12 Nov. 2008)

    A 33-year-old man, Thomas, was killed in an automobile collision. His estate recovered the policy limits of the negligent driver. Thomas’s parents, the Lamers, ages 59 and 56, filed an action against Thomas’s underinsured motorist carrier for loss-of-inheritance damages under the wrongful death statute, Wis. Stat. section 895.04. The circuit court granted summary judgment in favor of the insurer.

    The court of appeals affirmed in an opinion written by Judge Neubauer. First, the record established that there was no “reasonable probability that the Lamers would have inherited from Thomas had he lived a natural life span” (¶ 10). The linchpin was the life expectancies of Thomas and his parents.

    The Lamers also contended they could maintain an action on behalf of the “class of heirs” regardless of their likelihood of an inheritance from their son. The court disagreed. “We conclude that under the plain language of Wis. Stat. § 895.04, the Lamers, as the lineal heirs, have the sole right to bring the wrongful death action and are not entitled to bring such an action on behalf of other potential heirs. The claim belongs to them, and the next relatives in the hierarchy have no cause of action. Had the legislature intended to allow a single heir to bring an action on behalf of all heirs, it would have stated as much…. We therefore agree with American Hardware that the viability of the Lamers’ loss of inheritance claim must be examined based solely on their circumstances. As concluded above, the undisputed facts establish that the Lamers would have been unable to establish a reasonable probability that they would have been the recipient of the estate had Thomas lived a natural life span” (¶ 16).

    Immunity – Known Danger

    Pries v. McMillon, 2008 WI App 167 (filed 28 Oct. 2008) (ordered published 12 Nov. 2008)

    Pries, a corrections house inmate on a work detail, was injured while taking apart horse stalls at State Fair Park. The accident occurred when a state employee, McMillon, began jumping on jammed sections of the horse stalls, thereby causing them to tumble like dominos and strike Pries. A bench trial was held, and the court found in Pries’s favor.

    The court of appeals affirmed in a decision written by Judge Kessler. In general, state employees are immune from personal liability for injuries inflicted within the scope of their official duties. “When a state employee asserts discretionary act immunity as a defense, the analysis ‘assumes negligence and focuses on whether the action or inaction upon which liability is premised is entitled to immunity’” (¶ 15). There are, however, exceptions that may apply. Although the circuit court had applied the so-called ministerial-duty exception, the court of appeals focused on the narrower known-danger exception, which “applies where dangerous circumstances give rise to a ministerial duty to act” (¶ 18). The record clearly established that McMillon knew that the chains had been removed from the stalls’ walls, which left them unstable, but he jumped on the unchained stall anyway. His actions fell outside the scope of discretionary immunity.

    Collateral Source Rule – Curative Instruction

    City of Milwaukee v. NL Indus., 2008 WI App 181 (filed 25 Nov. 2008) (ordered published 17 Dec. 2008)

    This appeal arises out of the city of Milwaukee’s litigation concerning childhood lead paint poisoning. In a lengthy trial, the jury found in favor of the defendants. The city appealed on numerous grounds. The court of appeals affirmed in an opinion written by Judge Curley.

    Most of the issues involve fact-intensive matters. One issue of more general interest concerns the admissibility of collateral-source evidence. The defense offered evidence regarding collateral sources of funds, mainly federal and state grants that helped the city pay for abatement and prevention programs (see ¶ 65). While acknowledging that such collateral-source evidence is generally excluded, the trial judge observed that the fact of government funding for lead paint programs was relevant to issues in the case other than damages. Excluding all mention of the federal and state programs was “unnecessary” and “impractical” (¶ 68). The trial judge gave a limiting instruction that warned the jury how not to use the evidence.

    The court of appeals held that the trial judge properly exercised his discretion and that juries are presumed to follow the instructions given to them. “Here, there is no basis in the record, other than one that calls for speculation, to support the conclusion that the collateral source evidence affected the jury’s liability findings. The City introduced and relied on such evidence extensively after its motion in limine was denied. The City claims it was ‘forced to disclose the existence of collateral sources in the process of making its prima facie case for damages’ as a result of the denial. Even if we accept this argument, as noted above, the curative instruction remedied any possible prejudice; and, since the evidence was offered by the City to make its prima facie case for damages, we fail to see how it would have affected the jury’s liability findings. In addition, we are not convinced that NL Industries improperly used the City’s evidence of funding sources; instead, NL Industries merely responded to the evidence presented by the City” (¶ 70).

    Judge Kessler dissented. She identified several errors, including the introduction of the collateral-source evidence (see ¶ 88).

    Negligent Supervision – Misuse of Employer’s Computers

    Sigler v. Kobinsky, 2008 WI App 183 (filed 6 Nov. 2008) (ordered published 17 Dec. 2008)

    The Siglers appealed from a summary judgment order in favor of CUNA Mutual Insurance in their lawsuit alleging negligent supervision and training. They argued that CUNA had a duty to prevent its employees from using company computers to harass other people because it was foreseeable that the failure to properly train or supervise their employees could cause harm to someone.

    The plaintiffs claimed that CUNA employee Thomas Kobinsky used his workplace computer to search for information about them and to engage in a pattern of harassment (for example, anonymously placing public ads indicating that David Sigler had a business that he did not have, signing up the plaintiffs for various subscriptions, and making commitments on their behalf). The alleged harassment followed an incident in which David Sigler yelled at Kobinsky for allowing his child to urinate in the Siglers’ yard. In their suit against CUNA, the plaintiffs argued that CUNA should have done regular monitoring and should have reviewed individual employee hits on Internet Web sites to prevent employees from using their company computers to cause harm. The circuit court concluded that CUNA was entitled to summary judgment on the ground that it did not owe a duty of care because an unreasonable risk of harm was unforeseeable (see ¶ 4).

    In a decision authored by Judge Dykman, the court of appeals affirmed. “To state a claim for negligent supervision, the Siglers must allege (1) the existence of a duty of care on the part of CUNA, (2) a breach of that duty of care, (3) a wrongful act of Kobinsky that was a cause of their injury, and (4) an act or omission of CUNA that was a cause of Kobinsky’s wrongful act. We conclude that the Siglers’ complaint has not alleged a duty of care, and thus has not stated a claim for negligence(¶ 9) (citations omitted). “[T]he Siglers’ complaint only alleged that CUNA provided Kobinsky with access to a computer and the internet, and that company policies prohibited personal use of computer resources. Because it was not reasonably foreseeable that permitting employees to have unsupervised access to the internet would probably result in an unnecessary risk of harm to some person or some thing, the Siglers have failed to allege facts showing that CUNA had a duty of care. Therefore, the Siglers failed to state a negligent supervision claim” (¶ 11).

    The appellate court also held that even if the Siglers’ complaint alleged negligent supervision, the court would have concluded that summary judgment was appropriate based on public policy factors. “First, the injuries in this case are too remote from the negligence to allow recovery. The actions of Kobinsky were bizarre and unexpected. CUNA had no relationship with the Siglers and all the information Kobinsky obtained was found on public websites. While the Siglers suffered harm as a result of Kobinsky’s actions, Kobinsky could have obtained the personal identification information about the Siglers with or without the use of CUNA’s computer. Also, recovery will enter a field with no sensible or just stopping point. CUNA already had computer usage policies which it communicated to employees. Employees were required to review and certify that they read and complied with these policies. Were we to allow the Siglers’ claim to proceed, this expansion of liability would be limitless and turn employers into guarantors or insurers” (¶ 13).

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