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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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    Vol. 82, No. 3, March 2009

    Civil Procedure

    Improper Venue – Waiver

    Brunton v. Nuvell Credit Corp., 2009 WI App 3 (filed 30 Dec. 2008) (ordered published 28 Jan. 2009)

    Brunton brought this action under the Wisconsin Consumer Act (WCA) alleging that the defendant, Nuvell, had engaged in unlawful collection practices. Nuvell filed a notice of appearance and an answer and litigated the disputes over the next year before it finally moved to dismiss the action on the ground it was improperly venued in Dane County. The circuit court granted Nuvell’s belated motion.

    The court of appeals reversed in a decision written by Justice Higginbotham. “The parties agree that the WCA’s venue statute, Wis. Stat. § 421.401, and not the general venue statute, Wis. Stat. § 801.50, applies in Brunton’s action arising from a consumer credit transaction, and they are correct. The parties also agree that § 421.401(2) provides that a party who appears in an action brought under the WCA may waive objection to improper venue. For her part, Brunton concedes that Dane County was not a proper venue for her action under § 421.401, and we agree” (¶ 11). Nonetheless, the court held, Nuvell waived the improper venue. Section 421.401 does not explicitly require an “affirmative act” to waive improper venue; “it provides only that a defendant may ‘appear[] and waive[]’ improper venue. The statutory language also does not imply any such requirement” (¶ 16). “Under the following procedural facts of this case, we conclude that Nuvell ‘appear[ed] and waive[d]’ its objection to improper venue within the meaning of Wis. Stat. § 421.401(2) at some point prior to filing its venue challenge. In the year before Nuvell raised its objection of improper venue, both parties actively litigated this case. For Nuvell’s part, it filed a notice of appearance and an answer without objecting to venue” (¶17).

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    Commercial Law

    Guaranties – Redemption – Deficiencies

    Bank Mut. v. S.J. Boyer Constr., 2009 WI App 14 (filed 23 Dec. 2008) (ordered published 28 Jan. 2009)

    A bank lent Boyer Construction more than $1 million. Steve and Marcy Boyer each signed a personal guaranty for the notes, which specified that the bank was not required to pursue the construction company or any collateral before enforcing the guaranty against the Boyers. The company defaulted and the bank eventually obtained judgments against the Boyers and a foreclosure judgment. The Boyers objected to the order for confirmation of the sheriff’s sale, at which the bank was the sole bidder, relying on Wis. Stat. section 846.103(2), “which provides that when a plaintiff elects a shorter redemption period when foreclosing on certain types of real estate, generally commercial real estate, the plaintiff must waive judgment for any deficiency against ‘every party who is personally liable for the debt secured by the mortgage’ and no judgment for a deficiency can be rendered against a party personally liable” (¶ 5). The circuit court overruled the objection, concluding that the deficiency issue should have been raised earlier.

    The court of appeals reversed in a decision written by Judge Brunner. The bank obtained a shortened redemption period under section 846.103(2), which reduced “the mortgagor’s redemption period from six months to three months, thereby expediting the foreclosure process” (¶ 11). In exchange, the bank “was required to forego judgment for a deficiency against any parties ‘personally liable for the debt secured by the mortgage’” (id.). The court concluded that the Boyers were personally liable for the debts secured by the mortgages. The bank could not reap the benefit of the shorter redemption period and also obtain a deficiency judgment against the Boyers (see ¶15). The court rejected the bank’s contention that the Boyers were liable on the guaranty, not the underlying debt, because the argument “ignores the effect of the guaranty of payment, which is to make the Boyers primarily liable on the underlying debts as principal obligors. Further, the guaranty of payment was separately actionable because of this primary liability” (¶ 17). In sum, it was immaterial that the bank could have sued on the guaranty without foreclosing on the mortgaged property.

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    Constitutional Law

    Smoking Bans – Rational Basis

    City of Wausau v. Jusufi, 2009 WI App 17 (filed 2 Dec. 2008) (ordered published 28 Jan. 2009)

    Jusufi operates a restaurant that requires its customers to be members in a social club. The one-time, $1 membership fee is donated to charity. When police visited the restaurant, they observed people smoking. Jusufi appealed a circuit court judgment finding him guilty of violating the city’s ban on smoking in restaurants. He argued that the ordinance was unconstitutional in its differential treatment of restaurants and private clubs. The court of appeals rejected his equal protection challenge in an opinion authored by Judge Brunner.

    The ordinance in question distinguished between private clubs that are nonprofit entities, which are excepted from the smoking ban, and restaurants, where smoking is prohibited. The court held that the distinction was rational. “Absent the ordinance’s narrow definition of private clubs as non-profit organizations controlled by their members, ordinary for-profit restaurants seeking the public’s patronage would be able to avoid enforcement of the smoking ban by instituting a few formalities. Restaurants could create the illusion of private clubs by creating memberships with no meaningful membership criteria. The memberships would essentially be shams, with members having no control over, or stake in, the restaurant’s operations. As such, the restaurants could identify themselves as private clubs, while remaining open to the public. Jusufi’s restaurant is a case in point” (¶¶ 15-16). His case “demonstrates precisely why the City was justified in classifying and treating restaurants and private clubs differently” (¶ 17).

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    Criminal Law

    Bail Jumping – Multiplicity – Failure to Appear for Two Preliminary Hearings Scheduled at Same Time

    State v. Eaglefeathers, 2009 WI App 2 (filed 11 Dec. 2008) (ordered published 28 Jan. 2009)

    The defendant was charged with felonies in two separate cases. He was released on a single $2,000 bond that covered both cases. As a condition of the bond, he was required to “appear on all court dates.” The court set preliminary hearings in the two cases, scheduling both hearings for the same date and time. The court also sent the defendant two preliminary hearing notifications, one for each case. The defendant failed to appear at the preliminary hearings and was thereafter charged with two counts of bail jumping under Wis. Stat. section 946.49.

    The defendant entered guilty pleas to both bail-jumping counts. The pleas were accepted, and he was sentenced to three years’ imprisonment for each count. He later filed a motion seeking to withdraw his guilty pleas, asserting that the convictions on multiple charges violated his double jeopardy rights, and that his counsel rendered ineffective assistance for failing to raise the double jeopardy issue in the circuit court. The circuit court denied the motion, rejecting the claims of double jeopardy and ineffective assistance because the offenses, although committed at the same time, were different in fact.

    In a decision authored by Judge Higginbotham, the court of appeals affirmed. It held that the two counts of bail jumping were not multiplicitous because “the State would have needed to prove different facts for each violation of the bail-jumping statute, and … the legislature did not intend to preclude multiple punishments in these circumstances” (¶ 1). With regard to the difference-in-fact issues, the court considered whether each count required proof of an additional fact that the other count did not; this is one measure for determining whether there was a sufficient factual distinction between the counts to support multiple punishments (see ¶ 8). Here, “[a]s the circuit court explained, each count of bail jumping associated with each case would require separate proof by the State. The State would be required to prove that the court notified [the defendant] of the preliminary hearing in each case, and that [the defendant] failed to appear in each case. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other. As a result, the two charges were significantly different in nature and therefore were different in fact for purposes of double jeopardy analysis” (¶ 11). The court further concluded that the defendant failed to meet his burden of showing clear legislative intent to preclude multiple punishment in the circumstances of this case (see ¶ 19).

    Recording Person Who is Nude – Wis. Stat. section 942.09(2)(am)1. – Elements of Crime

    State v. Jahnke, 2009 WI App 4 (filed 30 Dec. 2008) (ordered published 28 Jan. 2009)

    The defendant, Jahnke, had a friend with whom he was sexually intimate. On April 1, 2006, while the woman was in her bedroom, she knowingly exposed her nude body to Jahnke. He secretly videotaped her without her consent, using a video camera that was concealed under a pile of clothing. The woman later learned about the recording and contacted the police. Jahnke eventually pleaded guilty to making a nude recording in violation of the statute currently numbered as Wis. Stat. section 942.09(2)(am)1. (The statute in effect at the time of the conduct had a different section number but was identical in content to the current statute.) Jahnke received probation and a withheld sentence. He subsequently claimed that there was an insufficient factual basis to support his guilty plea. In a majority decision authored by Judge Lundsten, the court of appeals affirmed.

    The statute makes it a felony to record another person in the nude, without the knowledge and consent of that person, “in a circumstance in which [the recorded person] has a reasonable expectation of privacy.” Jahnke argued that the woman did not have a “reasonable expectation of privacy” within the meaning of the statute because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her. “In Jahnke’s view, the only pertinent question for purposes of the privacy element is whether his girlfriend had a reasonable expectation that Jahnke would view her nude at the time of the recording” (¶ 6).  

    The state responded that there is a more precise question for purposes of the privacy element that is geared to the specific privacy interest the statute is designed to protect. “According to the State, the question is whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude” (¶ 7). The court of appeals agreed with the state. It held that “the phrase ‘reasonable expectation of privacy’ in Wis. Stat. § 942.09(2)(am)1. means a reasonable expectation under the circumstances that one will not be recorded in the nude” (¶ 14).

    Judge Dykman filed a dissent. He argued that a contrary outcome in this case is required by the interpretation of the statute in question articulated in State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168.

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    Criminal Procedure

    Sex Offenders – Registry

    State v. Smith, 2009 WI App 16 (filed 16 Dec. 2008) (ordered published 28 Jan. 2009)

    The defendant was convicted of failing to comply with the reporting requirements of the sex offender registry. In 2001 he was convicted of false imprisonment of a minor, which involved a drug debt but no sexual purpose. Nonetheless, under Wis. Stat. section 301.45, he was required to register as a sex offender. On appeal of his conviction for failing to register, he contended that the registry violated both his due process and his equal protection rights because the underlying offense did not involve sexual purposes.

    The court of appeals rejected these arguments in a decision written by Judge Hoover. Because the defendant raised no issue of a fundamental liberty, the issue was whether the statute bears a reasonable and rational relationship to its purpose (see ¶ 8). In particular, the court held that a rational basis existed for the statutory distinction between parents and nonparents in the registry and for requiring the defendant to register even though the underlying offense involved no sexual purpose. It was sufficient that the crime involved a minor (see ¶ 13).

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    Family Law

    Divorce – Marital Estate – Hiding an Asset – Remedy

    Jezeski v. Jezeski, 2009 WI App 8 (filed 23 Dec. 2008) (ordered published 28 Jan. 2009)

    Stanley Jezeski did not want a 20-acre parcel of land to be considered part of the marital estate during his divorce, and so he devised a plan to transfer the parcel to his brother, Thomas. The plan was spelled out in a contract, signed by both brothers, in which Thomas promised to transfer the parcel back to Stanley after the divorce was finalized. After the divorce, Thomas refused to transfer the parcel back to Stanley, and Stanley brought a breach of contract action. After a bench trial, the circuit court held that the contract was an attempt to defraud the ex-wife, Rosalie, and the family court that presided over the Jezeski divorce, and it dismissed Stanley’s breach of contract action. Stanley appealed and the court of appeals, in a majority decision authored by Judge Anderson, affirmed the circuit court’s decision.

    The issue before the appellate court was whether a contract entered into to hide a substantial asset from a spouse and the family court during a divorce is enforceable (see ¶ 10). The court held that it is not. While the preference in Wisconsin is to enforce contracts agreed to by competent and intelligent parties, courts will not enforce them if they violate a statute, rule of law, or public policy (see ¶ 11). In this case, Stanley (who proceeded pro se with the divorce) had a statutory obligation to disclose all assets, no matter how acquired. It was of no avail to him that he believed the property was not part of the marital estate because it was gifted property. Said the court, “It was not Stanley’s job to unilaterally decide not to disclose this parcel because he believed it was not subject to division” (¶ 13).

    Stanley also offered the alternative argument that if the contract is void and unenforceable, the parties should be returned to their precontract positions. “In other words, Stanley asserts that he should get the parcel back even if [the court of appeals should] refuse to find a breach of contract” (¶ 18). Again, the appellate court disagreed. While the general rule is that a court will not aid either party to an illegal agreement, there is an exception when the parties are not in pari delicto (that is, when they are not equally at fault). In this case Stanley prepared the contract with the intent to evade his statutory obligation; his guilt was greater in degree than Thomas’s guilt (see ¶ 20). “The contract between Stanley and Thomas is void and unenforceable because it assisted Stanley in violating a statute and public policy. Because the court does not reward the perpetrator of a fraud upon the court, we affirm the trial court’s decision to void the contract and permit the parcel to be titled in Thomas’ name” (¶ 21).

    This resolution does not leave Rosalie without any recourse. Said the court, “She can seek to have the family court divide the gifted real estate parcel by proving that it would be a hardship not to include it in the marital estate. Wis. Stat. § 
    767.61(2)(b). Rosalie is free to ask the family court to impose a constructive trust on the parcel under Wis. Stat. § 767.127(5)…” (¶ 23).

    In dissent, Judge Snyder concluded that “[b]oth Stanley and Thomas knowingly entered into a fraudulent, illegal act with the sole purpose of violating Wisconsin law. Neither should be able to benefit from their joint act to perpetrate a fraud upon the Wisconsin family court. Both should answer for their egregious acts” (¶ 35).

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    Insurance

    UM Coverage – Ambiguity

    Blum v. 1st Auto & Cas. Ins. Co., 2009 WI App 19 (filed 4 Dec. 2008) (ordered published 28 Jan. 2009)

    Blum was seriously injured when he jumped on the hood of a car that Burch was driving in a high school parking lot. Burch’s father owned the car, which was not insured, but Burch was insured. Burch and his insurer settled for the limits of $250,000. Blum filed a claim under his parents’ uninsured motorist (UM) coverage with 1st Auto & Casualty, which denied the claim because Burch had liability insurance (although the car did not). The circuit court entered summary judgment in favor of 1st Auto & Casualty.

    The court of appeals affirmed in an opinion written by Judge Vergeront. First, the policy was ambiguous because the title of the UM section is “Uninsured Motorist” and the insuring clause defines coverage “in terms of an ‘uninsured motor vehicle’” (¶ 1). The court resolved the ambiguity in accordance with Hull v. State Farm Mutual Automobile Insurance Co., 222 Wis. 2d 627, 586 N.W.2d 863 (1998). “Hull holds that § 632.32(4)(a) requires UM coverage whenever either the owner or the operator of a motor vehicle is allegedly negligent and not covered by liability insurance, and it arrives at this construction by considering the purpose of the statute to place the insured in the same position as if the uninsured motorist had been insured. 222 Wis. 2d at 645-46. We conclude § 632.32(4)(a) does not require coverage where, as here, the alleged tortfeasor is the operator of the vehicle and is covered by liability insurance. Following [case law], we conclude a reasonable insured would understand that ‘uninsured motorist’ coverage under the policy has the same meaning as that term in § 632.32(4)(a), the statute that mandates this coverage in the policy” (¶ 19).

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    Real Property

    Condominiums – Master-planned Community

    Solowicz v. Forward Geneva Nat’l, 2009 WI App 9 (filed 23 Dec. 2008) (ordered published 28 Jan. 2009)

    The plaintiffs own condominium units in the Geneva National Development. They sued the developer, alleging that the governing structure gave the developer too much control. The circuit court ruled for the developer on the parties’ cross-motions for summary judgment. The court of appeals affirmed the circuit court in a decision authored by Chief Judge Brown. According to the court of appeals, “The novel issue in this case is whether the Wisconsin Condominium Ownership Act, Wis. Stat. ch. 703 (2005-06), limits the duration of a developer’s control over a master-planned community” (¶ 1).

    The court of appeals first held that the community’s covenant is not a condominium instrument subject to Wis. Stat. chapter 703. “[The covenant] refers to condominiums only when it speaks to the Condominium Declaration and the parcels designated as condominiums within it. The only documents or ‘instruments’ containing condominium in its name and specifying the Developer’s intent to create a condominium are the Condominium Declaration and the documents creating the individual condominiums”
    (¶ 20).

    Second, the court explained why a master-planned community such as Geneva National is not a “condominium venture” regulated by chapter 703 (see ¶ 22). “Taken together, a master-planned community is a private quasi-town that may include different types of homes (even condominiums), commercial property, private streets and parks, and other recreational facilities like golf courses, and is designed to attract a certain kind of person. Thus, there is a stark difference between condominiums and master-planned communities” (¶ 23). The court distinguished three non-Wisconsin cases cited by the plaintiffs.

    Third, the court addressed “the begging question”: “Was ch. 703 promulgated with the intent to include master-planned communities? The answer must be ‘no’” (¶ 34). The court relied on the statute’s plain language and a “helpful” amicus brief submitted by a realtors’ group (see ¶ 37). “Like the Realtor’s Association, we cannot imagine an entire master-planned community, really a quasi-town, being built and sold in three or ten years. Simply put, master-planned communities would likely cease to exist if limited by Wis. Stat. ch. 703. We conclude that master-planned communities are not part of the purpose behind ch. 703’s promulgation” (id.).

    Finally, the court rejected several wide-ranging, fact-intensive arguments to the effect that the covenant was unreasonable. 

    Eminent Domain – Condemnation Rights Cannot Be Lost by Waiver or Estoppel

    Andrews v. Wisconsin Pub. Serv. Corp., 2009 WI App 6 (filed 2 Dec. 2008) (ordered published 28 Jan. 2009)

    The Wisconsin Public Service Corporation (WPSC) received authority from the Public Service Commission of Wisconsin to construct a high-voltage transmission line from Weston, Wisconsin to Arrowhead, Minnesota. Shortly thereafter, the WPSC notified property owners affected by the project that it would negotiate with them to acquire easements necessary to construct the line. The Arrowhead-Weston line would be routed as much as possible along existing transmission-line, railroad, gas-pipeline, or highway corridors. One of these corridors ran through plaintiff Andrews’ property, for which there was a high-voltage transmission-line easement dating from 1972.

    The WPSC notified Andrews that it wanted access to the existing easement on her property to conduct surveying and other preliminary work for the new line. Andrews objected, arguing the easement did not permit the WPSC to enter her property for work associated with the new line. The WPSC then initiated a declaratory judgment action to determine what its rights were with respect to the 1972 easement. The court declared that the easement did not allow construction of the new line and that the WPSC would need to acquire a new easement for the Arrowhead-Weston line. The WPSC then commenced a condemnation proceeding for a new easement.

    Andrews responded with this separate action. “She claimed WPSC lost its right to condemn her property based on either waiver or estoppel because the declaratory judgment action was contrary to WPSC’s statements that it would (1) acquire new easements, (2) negotiate in good faith, and (3) pay fair value for the easements” (¶ 4). The circuit court disagreed and granted summary judgment in favor of WPSC. The issue before the court of appeals was whether a party with the right of condemnation can lose that right by waiver or estoppel (see ¶ 6). In a decision authored by Judge Peterson, the court answered in the negative.

    The plaintiff argued that the WPSC waived the right to pursue condemnation by seeking declaratory judgment instead of initiating condemnation proceedings. The appellate court disagreed. “Andrews cites no precedent holding that initiating a declaratory judgment action alters a condemning party’s ability to exercise its eminent domain powers. Such a conclusion would be at odds with the notion that condemnation rights are inalienable” (¶ 10). The court also rejected the plaintiff’s contention that that just as certain personal rights, such as the right to a jury trial, are waivable, the right to condemnation can be waived as well. Said the court, “Personal rights may be waivable, but public rights are not. The power of eminent domain effectuates public purposes” (¶ 11).

    Andrews also argued that the WPSC should be estopped from condemning her property. She contended that it was inequitable for the WPSC to seek a declaration that the 1972 easement permitted construction of the Arrowhead-Weston line instead of first negotiating with her for a new easement, as it initially informed all affected property owners it would. Once again the appellate court disagreed. “There is no inconsistency in asking a court to determine whether WPSC already possessed the right to build a new line on Andrews’ property before negotiating to acquire a new easement. However, even if WPSC’s statements were inconsistent, WPSC would still not be barred from exercising its condemnation rights. We conclude that just as condemnation rights cannot be lost by contract or waiver, neither can they be abrogated by estoppel” (¶ 12).

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    Taxation

    Property Taxes – Claims of Excessive Assessments – Court’s Options under Wis. Stat. section 74.37

    Trailwood Ventures LLC v. Village of Kronenwetter, 2009 WI App 18 (filed 2 Dec. 2008) (ordered published 28 Jan. 2009)

    Trailwood Ventures and Alliance Holdings own vacant lots in the village of Kronenwetter. In 2006, the village assessor valued Trailwood’s parcel at $10,708,800 and Alliance’s parcel at $2,309,500. The companies appealed to the village’s board of review, which reduced the parcel values to $7,353,710 and $1,463,616, respectively.

    Trailwood and Alliance each filed a claim for an excessive assessment pursuant to Wis. Stat. section 74.37. Under this statute the property owner, after paying the property tax due, may bring an action that in essence seeks a refund of the alleged overpayment. Following briefing and a trial, the court determined that the parcels’ values were the higher amounts as originally determined by the assessor, and it entered an order reinstating the original assessments. Trailwood and Alliance moved for reconsideration, but the court denied the motion. Trailwood and Alliance then brought this appeal.

    In a decision authored by Judge Hoover, the court of appeals reversed. It concluded that “the only possible results for an action commenced under Wis. Stat. § 74.37 are a refund to the taxpayer for overpayment, or a judgment for the taxing authority if there is no overpayment. Deficiency judgments are not permitted” (¶ 12). By accepting payment of taxes, the taxing authority has already agreed that the tax value collected is the maximum value it seeks. “Thus, when a taxpayer brings a § 74.37 action to recover excessive taxes, the least favorable outcome for the taxpayer, and the best possible outcome for the taxation authority, is for the court to conclude there were no excessive taxes. The court cannot impose a greater tax burden than the one the taxation authority already agreed to when it accepted the taxpayer’s payment” (¶ 13). Because the circuit court exceeded its statutory authority when it reinstated the original (and higher) assessments as determined by the village assessor, the appellate court reversed.

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    Torts

    Dog Bite – Keeper

    Pawlowski v. American Family Mut. Ins. Co., 2009 WI App 7 (filed 3 Dec. 2008) (ordered published 28 Jan. 2009)

    Seefeldt allowed Waterman to live at her house with his dogs. Some months later, after Waterman opened the front door of the home to go shopping, his dogs “immediately charged across the street” and injured the plaintiff. Waterman moved away and could not be located for this litigation. The plaintiff sued Seefeldt, claiming she was the keeper of the dogs under the dog bite statute, Wis. Stat. section 174.02. The circuit court granted summary judgment in Seefeldt’s favor, finding that she was not the keeper when the attack occurred and, to the extent she was, the status ended when the dogs’ owner, Waterman, “exercised dominion” by leaving the house with his dogs (see ¶ 7).

    The court of appeals reversed in a decision written by Judge Neubauer. A legal owner and a statutory keeper can be simultaneously strictly liable under section 174.02 (see ¶ 11). A person who “shelters or maintains the dog on her premises, i.e., has custody of the dog at her home, is a ‘keeper’” (¶ 12). On the “sparse” record before it, the court concluded Seefeldt was a keeper (see ¶ 13) and not a “‘pro bono’ landlord” (¶ 15). The court also rejected Seefeldt’s contention that she was not a keeper at the moment of injury because the owner had exercised “control” over his dogs, a discussion that thoroughly examines three prior cases. “Here, at the time of injury, Seefeldt retained statutory ownership of the dog; she had not relinquished custody. She continued to maintain the dog at her home, and the incident happened when the dog charged out the front door of her home. Waterman and his dogs were still on her property when he let the dogs out the front door to go to his car. Whether she exercised control at that moment, the strict liability statute holds her liable as she was in a position to protect innocent persons walking by from dogs kept at her home” (¶ 27). Moreover, unlike the situation in one prior case, here the defendant had not “expressly terminated her dual authority with the dog’s owner” (id.).

    Chief Judge Brown concurred but wrote separately to address the public policy underlying the statute. In part, he said, “As I see it, the purpose of the statute is to protect from harm the surrounding neighbors, passers-by and those who come in proximity to a dog. If a neighbor agrees to keep and shelter a dog in the home, it means the dog is living in that home just as much as would be the case if the homeowner was the legal owner of the dog. Unless and until the homeowner’s status as keeper is intentionally terminated in time and space by the dog’s removal from the home, that homeowner is strictly liable for any dog-bite injury to his or her neighbors, passers-by and others in proximity” (¶ 30).

    Judge Snyder dissented on the ground that under the law and facts, Seefeldt had “relinquished dominion, care” and so on to the owner at the time of the injury.

    Medical Malpractice – Informed Consent

    Hageny v. Bodensteiner, 2009 WI App 10 (filed 23 Dec. 2008) (ordered published 28 Jan. 2009)

    Hageny died in the hospital following gall bladder surgery. The autopsy revealed that a clip on an artery had come off, causing Hageny to bleed to death (see ¶ 4). At trial, the plaintiffs conceded that Hageny had validly consented to the original surgical procedure, but they asked the circuit court to instruct the jury that a second informed-consent discussion was needed when Hageny’s blood pressure dropped. The circuit court declined to give the instruction.

    The court of appeals affirmed in a decision written by Judge Peterson. The plaintiffs essentially proposed a tautology: “[A] physician must conduct a new informed consent discussion whenever there is a substantial change in medical circumstances, and a substantial change in medical circumstances occurs when a reasonable patient would think a second informed consent discussion was necessary. Mrs. Hageny’s circular test does not provide a workable way to determine when medical conditions have changed to such an extent that a physician and patient must revisit the informed consent issue. Rather, we conclude that a second informed consent discussion is not necessary unless the medical conditions change such that the patient faces risks not disclosed prior to the procedure” (¶ 12). The risks that Hageny faced were adequately addressed in the initial informed-consent discussion (see ¶ 14). 

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