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  • WisBar News
    October 14, 2013

    Supreme Court Adds Railroad Negligence and Rape Shield Law Cases to Docket

    Oct. 14, 2013 – The Wisconsin Supreme Court has added five new cases to its docket, one involving state negligence claims against a railroad whose train collided with a mini-van during a Memorial Day parade in the Village of Elm Grove, a Milwaukee suburb.

    The court will also consider a case involving a defendant who attempted to introduce evidence that he had a prior sexual relationship with the alleged sexual assault victim, despite the state Rape Shield Law, which is intended to protect sexual assault victims.

    In addition, the court will also resolve a commercial landlord-tenant dispute over unpaid rent, answer questions concerning the “relation back” statute, a rule of pleading, and potentially resolve an adverse possession dispute over land along Lake Delton.

    Partenfelder v. Rohde, 2012AP597 (Negligence, Federal Preemption)

    The supreme court will examine whether the Federal Railroad Safety Act preempts a state law negligence claim brought by plaintiffs injured in a train accident.

    Traffic backed up in the Village of Elm Grove during a Memorial Day parade in 2009, and Monica Partenfelder’s vehicle got stuck on the train tracks as the train crossing gates came down. A police officer and Monica’s husband, trailing in a different car, attempted to extract the Partenfelder’s two-year old son from the mini-van before the train struck the vehicle. The boy was not hurt; the husband and the officer were injured.

    Weeks before this accident, the village police department notified the Soo Line Railroad of the parade, and asked the railroad to notify its conductors. But the train was traveling at its normal rate of speed, almost 50 mph, as it approached the Elm Grove crossing.

    The plaintiffs brought negligence and safe-place claims. The railroad argues that these state law claims are preempted by federal law, the Federal Railroad Safety Act (FRSA).

    A state appeals court ruled that the plaintiffs’ state law claims survive because there’s an exception to the FRSA’s preemption clause for certain tort duties. The parade was an individualized hazard that the railroad was aware of, a majority explained.

    According to a release by court staff, “a decision by the Supreme Court could potentially have wide-ranging effects on railroad traffic on 3,000 miles of track in Wisconsin.”

    State v. Sarfraz, 2012AP337 (Sexual Assault, Rape Shield Law)

    After a jury trial, Muhammad Sarfraz was convicted of second-degree sexual assault by use of force based on an incident that occurred in May 2010. The victim, an immigrant who had previously lived with Sarfraz, accused him of raping her at knife-point.

    A neighbor had found the victim partially clothed and bloodied in an apartment hallway. Police later found a bloodied knife in the taxi that Sarfraz was driving.

    Before trial, Sarfraz attempted to enter evidence that he and the victim had a prior sexual relationship, and asserted that the incident at issue was consensual. The trial court ruled that Sarfraz could not introduce evidence of a prior sexual relationship.

    A provision in Wisconsin’s Rape Shield law, Wis. Stat. 972.11(2)(b)1, evidence of an alleged victim’s prior sexual conduct cannot be admitted into evidence unless it is evidence of the alleged victim’s past conduct with the defendant.

    However, evidence of past conduct with the defendant must be of sufficient probative value to outweigh its inflammatory and prejudicial nature. The trial court had ruled that Sarfraz could not offer detailed evidence of the alleged prior sexual relationship.

    But a state appeals court reversed, concluding that probative value of the alleged prior sexual relationship was high because it allowed the jury to question the alleged victim’s credibility and her motivations. The state appealed to the supreme court.

    CED Properties v. City of Oshkosh, 2012AP5 (Relation Back, Pleadings)

    This case involves a challenge to special assessments levied by the city of Oshkosh against a property owner for portions of a road construction project.

    CED Properties argues that an amended complaint challenging one of the assessments “related back” to the original complaint, despite the city’s argument that it was untimely.

    The supreme court is expected to resolve a dispute over the state’s “relation back” statute, Wis. Stat. section 802.09(3), which provides that an act done at a later time, in certain circumstances, is treated as though it occurred as an earlier time.

    Gagliano & Co., v. Openfirst, 2012AP122 (Commercial Lease, Unpaid Rent)

    The supreme court will examine whether Wisconsin law allows a commercial property landlord to recover unpaid rent from a defaulting tenant, as well as a subtenant.

    Quad Graphics assumed commercial leases entered into by predecessor entities, including Openfirst LLC, with landlord Anthony Gagliano & Co. Gagliano asserted that Quad Graphics was directly liable as the assignee of the leases.

    A circuit court ruled for Quad Graphics, but an appeals court reversed. On appeal, Quad Graphics says a landlord may recover unpaid rent from a tenant’s assignee, but not a subtenant, and Quad Graphics cannot be considered an assignee in this case.

    Wilcox v. Estate of Hines, 2012AP1869 (Adverse Possession, Subjective Intent)

    In this case, the supreme court will decide whether a party who publicly denies ownership of property may unwittingly acquire ownership through adverse possession, and whether this party’s successor in interest may likewise be deemed an owner.

    In approving a couple’s claim of title to land by adverse possession, a state appeals court ruled that a possessor’s “subjective intent” is not always a relevant factor in determining whether a person’s claim of title is “hostile.”

    Summaries derived from full summaries available at 


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