Vol. 73, No. 3, March
2000
Court of Appeals Digest
by Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
Note: Each case summarized in the Court of Appeals
Digest includes its new public domain citation.
| Administrative Law | Civil
Procedure | Criminal
Procedure | Domestic Abuse | Employment
Law | Family Law
| Insurance | Lemon
Law | Medical Assistance
| Taxation | Torts | Trials |
Administrative Law
Department of Natural Resources - Power to Challenge
Constitutionality of Statute
Silver Lake Sanitary
District v. Wisconsin Department of Natural Resources, 2000 WI
App 19 (filed 9 Dec. 1999) (ordered published 19 Jan. 2000)
The Department of Natural Resources (DNR) challenged the
constitutionality of Wis. Stat. section
30.2037 which sets the ordinary high water mark of Big Silver Lake
in Waushara County at 867 feet above mean sea level. The circuit court
granted DNR's motion for a declaratory judgment, holding that the DNR
had standing to challenge the constitutionality of the law and that the
law was unconstitutional as a local bill in a multi-subject bill.
Several months later the Wisconsin Legislature enacted section
30.103, which permits a sanitary district to set the ordinary high
water mark of any lake that is wholly within its district and prohibits
the DNR from setting a different level. The DNR sought a declaratory
judgment that this statute also is unconstitutional. The circuit court
agreed and held that it is an unconstitutional violation of the public
trust doctrine and the forever-free clause of the Wisconsin
Constitution.
On appeal the DNR conceded that generally a state agency cannot
attack a statute's constitutionality. However, it argued that, in
limited circumstances, a state agency can challenge a statute's
constitutionality if an issue of great public concern is presented.
In a majority decision authored by Judge Roggensack, the court of
appeals reversed the circuit court. It concluded that the great public
concern exception relied upon by DNR applies only to cases where a
private litigant and a creature of the state are involved. There were no
private litigants in this lawsuit and therefore the DNR did not have
standing to contest the constitutionality of the statutes cited
above.
Judge Vergeront filed a concurring opinion.
Civil Procedure
Personal Jurisdiction - Long-arm Statute
Housing Horizons v. The
Alexander Co., 2000 WI App 9 (filed 9 Dec. 1999) (ordered
published 19 Jan. 2000)
The Anderson Company brought a third-party complaint against Verkler
Inc., an Indiana corporation. The circuit court dismissed the action
because Verkler lacked sufficient contacts with Wisconsin to trigger the
state's long-arm statute.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. Although long-arm statutes are liberally construed in favor of
jurisdiction, the plaintiff bears the burden of showing that the
conditions were met. Under Wis. Stat. section
801.05(4) Wisconsin jurisdiction extends to out-of-state defendants
in situations where there is "both an 'act or omission outside the state
by the defendant or his agent' and an 'injury to person or property
within the state which is claimed to arise out of the foreign act or
omission.'" The statute also requires specified "additional
contacts."
In this case the plaintiff claimed that Verkler engaged in
"solicitation or service activities" within Wisconsin. The court held,
however, that "Verkler's participation in the two meetings" in Wisconsin
did not constitute the necessary "service activities." The case law
"suggested" that a defendant's contacts, when they are limited to a
"single isolated transaction," are insufficient as "service activities."
Other authority led the court to conclude "that the legislature
contemplated something beyond isolated and fleeting contacts with our
state when it enacted the 'service activities' requirement."
¶14.
Criminal Procedure
Search and Seizure - Seizure of Attorney's Files by Trustee Attorney
- Governmental Conduct - Abandonment of Lawyer's Files
State v. Knight,
2000 WI App 16 (filed 15 Dec. 1999) (ordered published 19 Jan. 2000)
Knight is a disbarred attorney who was serving a prison sentence when
the facts described below occurred. During the course of another
criminal proceeding involving him, the local circuit judge received
information that a former employee of Knight had possession of Knight's
client files at her home. This information also revealed that the
employee was intending to dispose of the files by putting them out on
the curb for disposal.
Concerned about the confidentiality of the files, the judge appointed
another lawyer as the trustee attorney for the files pursuant to SCR
22.271(2)(a). This Supreme Court Rule provides that when a sole
practitioner attorney has abandoned the practice of law for at least 21
days, any interested person or person licensed to practice law in
Wisconsin may file a petition in the circuit court alleging such
abandonment and that no satisfactory arrangements have been made to
continue the practice. The rule further provides that upon a finding
that the attorney has abandoned the practice, and if no other
satisfactory arrangements have been made to continue the practice, the
circuit court shall appoint a trustee attorney who may take action to,
among other things, protect the clients' rights, files, and
property.
The judge's order appointing the attorney trustee directed him to
take charge of the files. The lawyer went to the former employee's
residence and, with her help, removed files from a garage attic. He took
the files to his office and reviewed them. An audit of the files
revealed that approximately $78,000 was missing from a trust fund for
which Knight was the trustee. Based upon this information the state
charged Knight with felony embezzlement. Knight brought a motion to
suppress claiming that the files were obtained as a result of an illegal
search and seizure. The circuit court denied the motion and the
defendant pled guilty.
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed. It concluded that governmental conduct occurred when the
trustee attorney acted pursuant to a circuit court order to seize the
client files and search them. Therefore, those activities had to comport
with the requirements of the Fourth Amendment. The appellate court
further agreed with the circuit court that the files had been abandoned
by Knight and that therefore no search occurred within the meaning of
the Fourth Amendment. When a person turns material over to a third
party, such as happened in this case when the attorney turned the files
over to his former employee, the attorney has no Fourth Amendment
protection if the third party reveals or conveys the material to
governmental authorities. In short, said the court, the defendant
abandoned his clients' files just as he had abandoned his clients.
Probation - Validity of Probation Condition
State v.
Simonetto, 2000 WI App 17 (filed 15 Dec. 1999) (ordered
published 19 Jan. 2000)
The defendant was charged with 15 counts of possession of child
pornography and entered a plea of no contest. The circuit court imposed
and stayed sentence and placed him on probation for 16 years. One of the
conditions of probation was "not to go where children may congregate."
The defendant challenged this condition in a post-conviction motion,
which the circuit court denied. At the hearing the court rejected the
defendant's argument that the probation condition was overly broad and
vague, stating that if he didn't understand the meaning of the court's
judgment, he could refer to the probation rules promulgated by the
Department of Corrections. Specifically, the court referred to a
standard condition of sex offender supervision, which prohibits entry
into any area frequented by persons under age 18, including, but not
limited to, schools, day care centers, playgrounds, parks, beaches,
pools, shopping malls, theatres, or festivals without prior approval
from the probation agent.
In a decision authored by Judge Brown, the court of appeals affirmed.
It concluded that the condition of probation described above, when
examined in light of the court's clarification thereof at the
post-conviction motion hearing, was not overly broad. Further, the court
concluded that the condition is eminently reasonable and necessary
inasmuch as psychotherapists familiar with his case testified without
contradiction that the defendant is a pedophile and a nascent child
molester. The court thought that the condition of probation was
necessary to protect the community and may even help the defendant
overcome his problem by removing what for him is a stimulus.
Finally, the court rejected the defendant's constitutional challenge
that the probation condition violated his right of freedom of
association and right to travel. The defendant is a convicted felon and
his conditions of probation may impinge upon constitutional rights as
long as they are not overly broad and are reasonably related to his
rehabilitation. These criteria were satisfied by the probation condition
in this case.
Domestic Abuse
Injunctions - Duration - Constitutionality of Wis. Stat. Section
813.12(4)
Hayen v. Hayen,
2000 WI App 29 (filed 23 Dec. 1999) (ordered published 19 Jan. 2000)
The appellant contended that the circuit court erred when it refused
her request for a two-year injunction and instead issued the injunction
for only six months. She also argued that the court erred when it
declined to order the sheriff to assist in placing her in physical
possession of her residence. On both issues the court of appeals, in a
decision authored by Judge Deininger, agreed.
Wis. Stat. section
813.12(4)(c) provides that an injunction issued under the statute is
"effective according to its terms, for the period of time that the
petitioner requests" but not longer than two years. Accordingly, once a
circuit court determines that it will issue a domestic abuse injunction,
the court is required to issue the injunction for the length of time the
petitioner requests subject to the two-year limitation.
The respondent argued that, if the statute is interpreted as
unequivocally requiring the circuit court to grant a domestic abuse
injunction for the period that a petitioner requests, then it violates
his rights to a jury trial, due process, and equal protection of the
law. On all three counts the court of appeals disagreed.
Finally, the appellate court agreed with the appellant's claim that
the circuit court erred when it declined to order the sheriff to assist
in placing her in possession of her residence. Section
813.12(6) plainly requires the court, if it elects to grant an
injunction and the petitioner so requests, to direct the sheriff's
assistance in placing the petitioner in physical possession of his or
her residence. However, the appellate court noted that nothing in this
statute or in this decision should be viewed as interfering with a
family court's authority to determine which party should have temporary
possession of the residence during the pendency of a divorce action, if
one is commenced, or how the parties' property ultimately should be
divided upon divorce.
At the time of the hearings on the appellant's petition for an
injunction in this action, no family court had entered any order
regarding occupancy of the parties' residence, nor had either party
commenced a divorce action. The appellant conceded, and the court of
appeals agreed, that if she were restored to physical possession of the
parties' residence with the sheriff's assistance under section
813.12, and a family court were subsequently to award possession of
the residence to her husband, she would then have to make arrangements
to leave. The injunction, if still in effect, would then require her
husband to avoid his wife's new residence. Similarly, if a family court
had awarded possession of the parties' residence to the husband prior to
the injunction hearings under section
813.12, those premises would no longer constitute the wife's
residence, and she would have no right under the statute to the
sheriff's assistance in obtaining physical possession of it.
Employment Law
Constructive Discharge - "For Cause" - Frivolous Appeals
Tennyson v. School District
of the Menomonee Area, 2000 WI App 21 (filed 14 Dec. 1999)
(ordered published 19 Jan. 2000)
The plaintiff resigned her position as a payroll clerk for a school
district but then sued alleging that she had been constructively
discharged. In a prior appeal the court held that constructive discharge
did apply in the context of an ordinary employment contract with a "for
cause" provision, and that "an employer may constructively discharge a
person where working conditions are so intolerable that a reasonable
person is compelled to resign to avoid recurrence." On remand a jury
found that she had been constructively discharged and awarded damages.
This appeal and cross-appeal followed.
The court of appeals, in an opinion written by Judge Cane, affirmed.
First, the court "elaborated" upon its earlier holding, reaffirming that
constructive discharge does apply "in the context of an ordinary
employment contract with a 'for cause' provision." A constructive
discharge occurs where "an employee's working conditions [are] so
intolerable that a reasonable person in the employee's position would
have been compelled to resign." Besides conditions that are "objectively
intolerable," the plaintiff must establish that they caused the
resignation. Finally, the employer must have either deliberately created
the conditions or knowingly permitted them to continue. The court's
opinion elaborates upon the various elements. The record supported the
jury's findings.
The court also took up several frivolous claims arguments. The
plaintiff claimed that the defendant's summary judgment motion was
frivolous and both parties exchanged frivolous appeals broadsides. The
court of appeals affirmed the trial judge's decision that the motion was
not frivolous and it curtly rejected the frivolous appeals arguments
advanced by each side. Prior cases established that certain claims or
arguments might themselves be frivolous but the court of appeals will
not award fees "unless the entire appeal is frivolous"
(emphasis original).
WFEA - Marital Status - Discrimination
Bammert v. LIRC,
2000 WI App 28 (filed 21 Dec. 1999) (ordered published 19 Jan. 2000)
Bammert was fired from her job at a food store. She filed a complaint
alleging that she was unlawfully terminated because her husband, a
policeman, had arrested her employer's wife. Bammert asserted that she
was discriminated against based on her marital status contrary to the
Wisconsin Fair Employment Act (WFEA). An administrative law judge
dismissed the complaint and LIRC affirmed on the ground that marital
status discrimination does not extend to the personal identity or
characteristics of one's spouse. The circuit court affirmed LIRC's
determination.
The court of appeals, in an opinion written by Judge Cane, also
affirmed. The court was satisfied that LIRC's determination that marital
status discrimination does not embrace "spousal identity" was a
long-standing construction of the WFEA that was entitled to "great
weight and deference" upon judicial review. It rejected Bammert's
contention that this construction rendered parts of the WFEA
"superfluous" (especially its anti-nepotism policies).
Family Law
Divorce - Enforceability of Fixed Maintenance Stipulations -
Estoppel Doctrine
Whitford v.
Whitford, 2000 WI App 18 (filed 7 Dec. 1999) (ordered published
19 Jan. 2000)
The parties were married in 1976 and divorced in 1994. At the time of
the divorce, they entered into a partial marital settlement agreement
that made arrangements for child custody and placement, and property and
debt division. A circuit court hearing was held thereafter on certain
disputed issues. After the judge decided those contested matters, the
parties entered into a second stipulation resolving the issues of
maintenance and family support. That stipulation provided that
maintenance was denied to the husband and that maintenance to the wife
was "a factor as to the family support payment set forth [in the
stipulation]." It further provided that "maintenance as to [the wife]
shall terminate and be forever banned on August 31, 1998. There shall be
no extensions on maintenance beyond August 31, 1998 under any
circumstances."
The court assured itself that the parties understood the effect of
this stipulation and then accepted it and incorporated it into the
divorce judgment. Several months before the maintenance expiration date,
the wife brought a motion seeking a maintenance extension. After a
hearing, the trial court declined to apply the estoppel doctrine to
prevent her from asking for an extension and instead issued an order
requiring payment of maintenance until 2001.
In a decision authored by Judge Curley, the court of appeals
reversed. In Rintelman v. Rintelman, 118 Wis. 2d 587, 348
N.W.2d 498 (1984), the supreme court explained that the estoppel
doctrine requires that "both parties entered into the stipulation freely
and knowingly, that the overall settlement is fair and equitable and not
illegal or against public policy, and that one party subsequently seeks
to be released from the terms of the court order on the grounds that the
court could not have entered the order it did without the parties'
agreement."
In a later case, the supreme court broadened the application of the
estoppel doctrine to prohibit a party from asking for a modification of
the amount of maintenance when the parties' stipulation prohibited the
modification. See Nichols v. Nichols, 162 Wis. 2d 96, 469
N.W.2d 619 (1991).
The court of appeals concluded that all of the conditions found in
Rintelman and Nichols were met in this case. Accordingly, the wife
should have been estopped from requesting an extension of the
maintenance period.
Divorce - Property Division - Inclusion of Termination Benefits
Package in Division of Assets
Garceau v.
Garceau, 2000 WI App 7 (filed 1 Dec. 1999) (ordered published
19 Jan. 2000)
The issue before the court of appeals was whether an insurance
company's termination benefits package for its employees, a type of
deferred compensation plan, should be divided at the time of divorce as
part of the marital estate. Unlike a pension, the plan does not set
money aside in a pool designated for the benefit of the particular
employee. Rather, the amount of termination benefit is based on the
insurance agent's performance during the 12 months prior to termination
and the number of years the agent has been with the company at the time
of termination.
The circuit court concluded that "there is no way that an amount can
be arrived at with any degree of accuracy." Thus it excluded the
termination benefits package from the property division.
In a decision authored by Judge Brown, the court of appeals concluded
that the termination benefits should have been included in the marital
estate. While the extended earnings are not a pension plan, they are the
insurance company's way of providing for its agents when their careers
are over. As future benefits, they are similar enough to a pension plan
to be treated like one when dividing the marital estate. Accordingly,
the court of appeals remanded the case to the circuit court to use its
discretion to reach an equitable division of this asset.
Insurance
UIM - Exhaustion of Limits
Danbeck v. American Family
Mutual Ins. Co., 2000 WI App 26 (23 Dec. 1999) (ordered
published 19 Jan. 2000)
While riding his bike Danbeck was severely injured by another driver,
who had $50,000 in liability coverage through his insurer. Danbeck
settled with the other driver and his insurer for $48,000. He then
sought compensation for excess damages from American Family under his
underinsured motorist (UIM) coverage. American Family denied the claim
because Danbeck had failed to exhaust the other driver's liability
coverage. The circuit court concluded that the exhaustion clause was
ambiguous and ruled in Danbeck's favor.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. The policy was not ambiguous. "The phrase 'limits of liability
... exhausted by payment of judgments or settlements' unambiguously
requires that the UIM policyholder receive payment from the liability
insurer equal to the limits of applicable liability policies"
¶7.
"Payment" meant "compensation paid by the liability insurer and
received by the insured." The court's construction did not contravene
public policy or the case law construing UIM coverage.
Coverage - "Public or Livery Conveyance" - "Hire" to the General
Public
Morris v. Buttney,
2000 WI App 23 (filed 28 Dec. 1999) (ordered published 19 Jan. 2000)
Buttney is the sole owner of a general delivery service that picks up
and delivers "essentially anything except hazardous waste and
groceries." While delivering a Federal Express (Fed Ex) package, he was
involved in an accident. Buttney's vehicle was covered by a policy that
excluded liability arising out of the operation of a vehicle "while it
is being used as a public or livery conveyance." The circuit court
agreed with the insurer that the clause precluded coverage.
The court of appeals, in an opinion written by Judge Cane, affirmed.
Buttney argued that the plain meaning of "public or livery conveyance"
limits its reach to the "hired transport of people only." Looking at
case law and dictionaries, the court ruled that the term's common
meaning included the transport for hire of things as well as people.
Buttney's alternative argument was that his service was not available to
the "general public" at the time of the accident because he was
delivering solely for Fed Ex. The record, however, failed to support
this claim. On the date of the accident Buttney was delivering
exclusively for Fed Ex, but less than 5 percent of his business was done
with Fed Ex. On most days he served any one who needed his services.
"Pay and Walk" Clause - Frivolous Claims - Notice
Hoffman v. Economy
Preferred Ins. Co., 2000 WI App 22 (filed 7 Dec. 1999) (ordered
published 19 Jan. 2000)
Hoffman was injured in an automobile accident with Metz, a minor
driver who was sponsored by her father. Metz was driving a truck owned
by the Emmerichs and insured by Badger Mutual Ins. Co. Badger conceded
that Metz was an additional insured under the policy. Badger
acknowledged primary liability and paid its policy limits of $100,000 to
Hoffman, who then released Badger and the Emmerichs (the owners) but not
the Metzes. In this action the circuit court granted Badger's request to
be dismissed as a party, ruling that Badger had no duty to defend or
indemnify the Metzes and also ruling that the Metzes' insurer, Economy
Preferred Ins. Co., had made frivolous arguments.
The court of appeals, in an opinion written by Judge Peterson,
affirmed in part and reversed in part. First, the Badger policy's "pay
and walk" provision was valid as to Metz. The case law requires that
such provisions be "conspicuously displayed" in the policy so that the
insured is given proper notice of the insurer's right to pay limits and
"walk away." These requirements did not, however, apply to an additional
insured such as Metz, who never would have seen much less read the
policy anyway. Second, the court rejected the argument that "an insurer
must obtain a written instrument or court order granting credit based on
its settlement." Simply put, no legal authority supported this
claim.
Third, the court reversed the frivolous claims finding. Although the
circuit court has the authority to raise a frivolous argument issue on
its own motion, the party accused of misconduct must be given adequate
notice and an opportunity to respond. None of the other parties sought
sanctions for frivolousness against Badger. Isolated comments in the
record accused Badger of proffering arguments that "bordered" on the
frivolous, but this fell short of adequate notice.
Lemon Law
Damages - Personal Injuries - Amended Complaint
Gosse v. Navistar Int'l
Transport. Corp., 2000 WI App 8 (filed 9 Dec. 1999) (ordered
published 19 Jan. 2000)
The plaintiff leased a truck and later complained that it vibrated
excessively. He later sued for personal injuries and other damages under
the Lemon Law. The trial court ruled that the Lemon Law does not permit
damages for personal injuries and it also refused plaintiff's request to
amend the complaint for a third time.
The court of appeals, in an opinion written by Judge Dykman,
affirmed. First, the court found that the words "any damages" in Wis.
Stat. section
218.015(7) are ambiguous. It held, however, that construing damages
to include personal injuries would contravene the Lemon Law's purpose
because it "was enacted to give consumers a means by which to ensure
that a newly purchased vehicle would conform to its warranty." The
plaintiff could have asserted a separate claim under "another law" to
recover damages for personal injuries.
As to the second issue, the court upheld the trial judge's refusal to
permit a third amendment of the complaint stating such a separate
personal injury claim. The motion came more than 22 months after the
filing of the original complaint and only two weeks before trial. The
judge noted that the plaintiff could have stated an alternative claim in
the original complaint. (A third issue relating to the form of the
verdict is record-intensive and does not raise any novel legal
issues.)
Medical Assistance
Spousal Impoverishment - Counting One Spouse's IRA as an Asset in
Determining the Other Spouse's Eligibility for Medical Assistance
Keip v. Wisconsin
Department of Health and Family Services, 2000 WI App 13 (filed
23 Dec. 1999) (ordered published 19 Jan. 2000)
The appellant wife retired in September 1996 and rolled her employee
pension into an IRA. The next year she began the medical assistance (MA)
application process on her husband's behalf. She learned, however, that
the Department of Health and Family Services intended to count her IRA
as an asset in determining her husband's eligibility for MA and that the
inclusion of the IRA would render him ineligible.
The couple requested a "fair hearing" before the Division of Hearings
and Appeals in order to challenge the denial of MA. The hearing examiner
concluded that the IRA should not have been included as a resource in
determining the husband's MA eligibility. The department's final
decision, however, concluded that, under the "spousal impoverishment
provisions" of federal law (42 U.S.C. § 1396r-5 (1994)), the IRA
was correctly determined to be a countable resource in determining the
husband's MA eligibility. The circuit court affirmed.
The court of appeals, in a decision authored by Judge Deininger,
reversed. It concluded that the department erred in interpreting the
federal "spousal impoverishment" provisions to require the inclusion of
a community spouse's IRA as an asset when determining the MA eligibility
of her institutionalized spouse.
Taxation
Wisconsin Income Tax - Taxing Menominee Indian Who Lives on and
Derives Income from Oneida Indian Reservation
La Rock v. Wisconsin
Department of Revenue, 2000 WI App 24 (filed 28 Dec. 1999)
(ordered published 19 Jan. 2000)
The petitioner resides in Wisconsin on land that is part of the
Oneida Reservation and is employed by the Oneida tribe on the Oneida
reservation. She is a member of the Menominee Indian tribe of Wisconsin.
She married an Oneida Indian, with whom she had four children. She is
now divorced from her husband. Her children are enrolled members of the
Oneida tribe; she is not.
On these facts the issue before the court of appeals was whether the
petitioner is exempt from Wisconsin's income tax. The circuit court
affirmed a decision of the Wisconsin Tax Appeals Commission, which held
that Wisconsin may impose an income tax on her because, although an
Indian, she is not a member of the Oneida tribe on whose land she
resides and from whom she derives income.
On appeal the appellant argued that she is exempt from Wisconsin's
income tax based on her status as an Indian living in and deriving
income from sources in Indian country. In a decision authored by Judge
Hoover, the court of appeals disagreed. It held that McClanahan v.
Arizona, 411 U.S. 164 (1973), exempts from taxation only Indians
who reside on and derive income from their own tribe's land. No act of
Congress, treaty, state statute, or agreement with any tribe impairs
Wisconsin's right to impose an income tax on enrolled members of a
federally recognized Indian tribe who live and work on a reservation of
another tribe.
Torts
Statute of Limitations - Optometrists - "Medical" Care - Affidavits
by Attorneys
Webb v. Ocularra Holding
Inc., 2000 WI App 25 (filed 28 Dec. 1999) (ordered published 19
Jan. 2000)
The plaintiffs sued an optometrist who allegedly failed to note an
abnormal test result while examining the husband, and thus neglected to
refer him to a medical specialist. The husband alleged that his
headaches and blurred vision were related to a brain tumor that should
have been detected earlier. The trial court dismissed the claim because
the medical malpractice statute of limitation had expired, thus barring
the action.
The court of appeals, in an opinion written by Judge Curley,
affirmed. First, the plaintiffs argued that the husband's claim was
governed by the statute of limitations in Wis. Stat. section
893.54, not the medical malpractice statute of limitations at section
893.55. The plaintiffs' most compelling argument was that
"optometrists" are not listed as "mandatory participants" or even as
"optional participants" in Wis. Stat. chapter
655, which governs "medical" malpractice claims. Recent case law,
however, undercut this contention. The courts have construed chapter
655 to embrace podiatrists, dentists, and chiropractors who provide
"medical care." Hence, optometrists also are swept within chapter
655.
Second, under the medical malpractice statute the action was time
barred. Case law established that the statute began to run on the date
of plaintiff's one-and-only eye examination by the defendant; in short,
the "date of negligence and the date of the injury were the same."
¶20. Since the plaintiffs failed to commence the suit within three
years of that date, their only recourse was under the discovery rule,
Wis. Stat. section
893.55(1)(b). The record revealed, however, that the plaintiff
discussed the optometrist's alleged negligence with the neurosurgeon
back in 1995, the day he learned about the tumor. The conversation would
not have occurred unless the plaintiff "clearly harbored suspicions
about the care rendered." Thus, the discovery statute expired at the end
of 1996, before this suit was filed.
Third, the court of appeals also agreed that the plaintiff failed to
file adequate affidavits to prove the optometrist's negligence.
Specifically, the plaintiff's attorney filed an affidavit reciting the
opinion of a medical expert that the optometrist had acted negligently.
The attorney's affidavit lacked "personal knowledge" and hence consisted
of inadmissible testimony that was stricken for summary judgment
purposes.
Trials
Jury Bias - Child Witness Videotapes
State v. Jimmie
R.R., 2000 WI App 5 (filed 8 Dec. 1999) (ordered published 19
Jan. 2000)
The court of appeals affirmed Jimmie's convictions for sexual assault
and incest involving a 5-year-old girl. Judge Nettesheim applied the
juror-bias analysis recently prescribed by the supreme court in State v.
Faucher and also took the opportunity to elaborate upon it. The court
emphasized that subjective bias turns on the juror's demeanor and thus
is a determination that ordinarily is best left to the trial judge.
Objective bias requires: "(1) some direct or personal connection between
the challenged juror and some important aspect of the case, or (2) a
firmly held negative predisposition by the juror regarding the justice
system that precludes the juror from fairly and impartially deciding the
case."
On the record, the court upheld the trial judge's determination that
the juror was not biased under either the objective or the subjective
test. The court of appeals also remarked upon the "steady stream" of
juror bias cases flowing before it. During voir dire lawyers are
permitted to ask jurors leading questions which often yield
"contradictory" responses depending upon which side asks the question.
On appeal each side dutifully and predictably points to the answers that
support its position. Thus, it is all the more "appropriate" for the
appellate court to defer to the trial court, which is in a "better
position to assess the prospective juror's credibility and honesty."
The second issue concerned the admissibility of a videotaped
statement under Wis. Stat. section
908.08, which requires that a child have an "understanding that
false statements are punishable and the importance of telling the
truth." The court held that both concepts - the truth is important and
lies will be punished - are interrelated and that most reasonable
children would associate the one with the other. Viewing the videotape
for itself, the court of appeals was satisfied that the child had made
the appropriate connection.
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.
Wisconsin Lawyer