Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Appellate Procedure | Commercial
Law | Criminal Law | Criminal
Procedure |
| Employment Law | Family Law | Fireworks | Insurance | Open
Meetings Law | Torts |
Appellate Procedure
Interlocutory Orders - Cross-appeal
Fedders v. American Family
Mut. Ins. Co., No. 99-1526 (filed 22 Sept. 1999) (ordered
published 25 Oct. 1999)
This case presented the following novel issue: "May a party
cross-appeal as of right any interlocutory order in an action once leave
to appeal has been granted?" In this case the cross-appellants argued
that under Rule
809.50(3) of the Wisconsin Statutes, they acquired the right of a
respondent to file a notice of cross-appeal under Rule
809.10(2)(b) once leave to appeal was granted. The right extended,
they argued, to any other interlocutory order.
In a per curiam decision, the court of appeals rejected the argument
and dismissed the cross-appeal. "Rule
809.50(3) does not have the effect of turning the interlocutory
judgment or order on which leave to appeal is granted into a final
judgment or order from which the respondent may cross-appeal as a matter
of right. ... Therefore, once leave to appeal is granted, a cross-appeal
from the same interlocutory order or judgment or any other interlocutory
order or judgment in the action requires a petition for leave to
appeal."
Commercial Law
Leases - Unconscionability - Venue Provision
First Federal Financial
Serv. Inc. v. Derrington Chevron Inc., No. 98-2763 (filed 22
Sept. 1999) (ordered published 25 Oct. 1999)
In this case the court held unconscionable a forum clause in a
finance lease. The lessees owned a service station in California and
entered into a relationship with a California firm that supplied
security surveillance equipment. Although the husband wanted to pay
cash, the supplier persuaded him to lease the equipment. When the
equipment arrived several days later, his wife signed what she thought
was an "okay for the equipment" but which actually was the lease. The
back page of the document contained 16 provisions in small print,
including one conferring jurisdiction in Waukesha, Wis. Two weeks later
the equipment failed to function. When the supplier failed to fix it and
the finance lessor, FFF, said that it "didn't care," the lessees stopped
payment. The circuit court held that the Waukesha forum clause was
unconscionable.
The court of appeals, in a decision authored by Judge Brown,
affirmed. The only basis for jurisdiction in Wisconsin was the lease
clause. Indeed the lessor's existence was buried deep in the small print
and it was reasonable for the wife to conclude that she was merely
signing an "acknowledgement of installation," not a lease. The lessor,
FFF, "peddles" its leases nationwide. The court opined that FFF "cannot
sit in its offices in southeastern Wisconsin and expect [lessees] from
across the country to march to Waukesha county to defend themselves from
collection actions." The only party that got a deal was FFF - "it was
guaranteed a home court while [the lessees] were stuck with security
equipment that did not work and a lawsuit in ... Wisconsin."
Criminal Law
Failure to Pay Child Support - Statute of Limitations
State v. Monarch,
No. 99-1054-CR (filed 21 Sept. 1999) (ordered published 25 Oct.
1999)
The defendant was charged with numerous felony counts of failing to
pay child support. The charges emanated from his alleged failure to pay
court-ordered child support arrears from 1993 to 1998. He was originally
ordered to pay support under a 1977 divorce agreement. That obligation
ended in 1985 when his youngest child attained majority. Since 1990 he
has been subject to an "arrearages only" order. However, with the
exception of one payment in 1998, he made no payments from 1993 through
1998.
The defendant moved to dismiss the charges, contending that his 1998
prosecution for failure to pay child support arrears accumulated from
1977 to 1985 should be dismissed because it is barred by the six-year
statute of limitations. In a decision authored by Judge Hoover, the
court of appeals disagreed.
Wis. Stat. section
948.22(2) provides that any person who intentionally fails for 120
or more consecutive days to provide child support that the person knows
or reasonably should know the person is legally obligated to provide is
guilty of a Class E felony. A prosecutor may charge a person with
multiple counts for a violation under this subsection if each count
covers a period of at least 120 consecutive days and there is no overlap
between periods.
The defendant argued that his crime was complete more than six years
ago because the definition of child support only applies to current
support. The court of appeals rejected this argument. The definition of
child support in the statute makes no distinction between current and
past support. In fact, a crime is committed only when an arrearage
develops. The essence of the offense is failing to pay support for at
least 120 days. The crime is complete after each 120-day period during
which the defendant intentionally fails to pay child support and
continues until he or she no longer intentionally fails to pay that
support. The statute of limitations begins to run from the end of each
120-day period.
Because the defendant is alleged to have intentionally failed to
provide for the support of a child within the six years preceding the
current prosecution, the statute of limitations is not a defense. The
current age of the child (who in this case reached majority in 1985) is
immaterial to this analysis.
Criminal Procedure
Plea Negotiations - Enforcement of Agreements by Specific
Performance
State v. Scott,
No. 98-2109-CR (filed 29 Sept. 1999) (ordered published 25 Oct.
1999)
The defendant reached a plea agreement with the state under which he
pled no contest to and was found guilty of several offenses. The plea
agreement restricted the state's sentencing recommendation. At the
sentencing hearing, the state was permitted to withdraw from the
agreement. Later, it advanced a modified sentencing proposal that
afforded the state the ability to recommend a significantly longer
sentence. The defendant agreed to the new proposal and thereafter was
sentenced to prison.
The defendant then sought resentencing on the ground that his trial
counsel provided ineffective assistance by failing to advise him that he
had a right to seek enforcement of the original plea agreement under
which he entered his no contest pleas. The circuit court denied relief.
In a majority opinion authored by Judge Langhoff (sitting by special
assignment pursuant to the Judicial Exchange Program), the court of
appeals reversed.
Prior to the time the defendant entered his no contest plea, the plea
agreement between the parties was wholly executory. Each party had an
opportunity to withdraw from or modify the plea agreement. Where a plea
agreement has been reached and the criminal defendant has not entered
pleas of guilty or no contest, he or she may seek enforcement of the
agreement only upon affirmatively demonstrating detrimental reliance.
Absent detrimental reliance on the bargain, the defendant has an
adequate remedy by being restored to the position occupied prior to the
agreement.
A detrimental reliance need not be demonstrated where a plea
agreement has been reached and a guilty or no contest plea has been
entered. After a prosecutor induces a plea pursuant to a plea agreement,
the prosecutor is required to carry out his or her part of the
bargain.
In this case defense counsel assumed that the only choices available
to the defendant were withdrawing his pleas or assenting to the state's
revised proposal made after the defendant had already entered his no
contest pleas. Defense counsel failed to advise the defendant that he
could elect to pursue a third option, namely, specific performance of
the plea agreement pursuant to which he had entered his no contest
pleas. The court concluded that this was deficient performance that
resulted in prejudice to the defendant.
Accordingly, the court of appeals reversed the circuit court and
granted the defendant's request for a new sentencing hearing requiring
the state to adhere to the terms of the plea agreement as it existed
when the no contest pleas were entered.
Judge Nettesheim filed an opinion concurring in part and dissenting
in part.
Probation - Revocation to be Initiated by Department of
Corrections
State v.
Burchfield, No. 99-0716-CR (filed 1 Sept. 1999) (ordered
published 25 Oct. 1999)
The defendant was convicted of delivering cocaine and was sentenced
to prison. The trial court stayed the prison sentence and ordered the
defendant to serve a term of probation. The probation agent subsequently
requested a trial court probation review and the possible imposition of
conditional jail time because of probation violations. Following a
hearing the trial court ordered that probation be revoked.
The defendant appealed the order revoking his probation because the
revocation was not initiated by the Department of Corrections (DOC). He
argued that under Wis. Stat. section
973.10(2) a sentencing court has no authority to revoke
probation.
In a decision authored by Judge Snyder, the court of appeals agreed
and reversed the order. It concluded that the statute prohibits judicial
revocation of probation by trial courts. The appellate court relied in
part on the decision in State v.
Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), which it believed
supported the defendant's contention that the executive branch (here
DOC) has exclusive statutory authority to administer and to revoke
probation.
Motion to Withdraw Guilty Plea After Original Sentence Vacated -
"Fair and Just Reason" Standard to be Applied
State v. Manke,
No. 98-2545-CR (filed 8 Sept. 1999) (ordered published 25 Oct. 1999)
The defendant entered a plea of no contest to a charge of recklessly
endangering safety and was sentenced to five years in prison. After
sentencing he moved to withdraw his plea or, alternatively, to be
resentenced before a different judge. He argued that he was entitled to
withdraw his plea because the state had breached the plea agreement by
recommending incarceration at the sentencing hearing when it had
promised to "stand silent" with regard to disposition. The circuit court
agreed and ordered that the defendant be resentenced before a new judge.
Before the new judge, the defendant moved to withdraw his plea of no
contest. The judge granted that motion after applying the "fair and just
reason" standard.
The issue before the court of appeals was whether the "fair and just
reason" standard was properly applied in this case. This standard is
used when a defendant moves to withdraw his or her plea prior to
sentencing. After sentencing, the more onerous "manifest injustice"
standard is applied to motions to withdraw pleas.
In a decision authored by Judge Anderson, the court of appeals
affirmed. Because the original sentence had been vacated, the court
concluded that the circuit judge properly applied the presentencing
standard of "fair and just reason" to the defendant's plea withdrawal
motion.
Search and Seizure - Unoccupied Premises - No-knock Entry
State v. Moslavac,
No. 98-3037-CR (filed 1 Sept. 1999) (ordered published 25 Oct. 1999)
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed orders denying the defendant's challenge to the legality of the
searches and seizures in this case. The court addressed two issues.
First, it held that police can forcibly execute a search warrant against
a premises when the occupant is absent. The entry, of course, must be
reasonable under the circumstances. Second, the court held that "[t]he
police are not required to knock and announce prior to executing a
search warrant against unoccupied premises." If they don't so announce,
however, the police are taking the risk that someone might in fact be
present and have standing to challenge the entry.
Search and Seizure - Automobile - Marijuana Odor
State v. Mata, No.
98-2895-CR (filed 22 Sept. 1999) (ordered published 25 Oct. 1999)
The defendant, Mata, was charged after police discovered marijuana in
his automobile. The trial court denied his motion to suppress.
The court of appeals, in an opinion authored by Judge Nettesheim,
affirmed. The sole issue on appeal was "whether a police search of a
passenger in a motor vehicle based solely on the odor of marijuana is
reasonable." Earlier cases, including a 1999 supreme court decision, did
not specifically address the reasonableness of searches based on odor
where there are several people in the vehicle. Although prior cases
"arguably" conflicted, the court found probable cause based on the
record in this case. Here the police had searched the other two
occupants and found nothing before they got to the defendant: "under
the particular circumstances of this case, the odds of Mata
possessing the suspected marijuana had increased - not diminished."
(Emphasis original.) The court also rejected arguments sounding in
Knowles
v. Iowa, 525 U.S. 113 (1998) (searches of vehicles stopped only
for traffic violations), and the Terry doctrine.
Restitution - Evidentiary Hearing - Fact of Damage
State v. Madlock,
No. 98-2718-CR (filed 1 Sept. 1999) (ordered published 25 Oct. 1999)
The defendant appealed from an order denying his motion to vacate the
restitution provision of a conviction judgment. He claimed the trial
court erred by not holding an evidentiary hearing on the appropriate
amount of restitution, if any.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed. The court's analysis proceeded under the general restitution
statute, section
973.20. It conceded that "in most cases the facts in support of the
criminal conviction, coupled with the statutory presumption of
restitution, will allow for a restitution order." This happened,
however, to be one of those "rare cases where that result does not
automatically flow." The restitution statutes permit evidentiary
hearings. They speak directly to the amount of restitution, but "they
also apply to a situation where the propriety of restitution is
challenged in the first instance." The hearings are informal, not "a
full-blown civil trial." The record in this case failed to establish the
fact or nature of the damage or the nexus between the damage and the
defendant's conduct. The matter was remanded for an evidentiary
hearing.
Employment Law
WFMLA - ERISA Preemption
Aurora Medical Group v.
Dept. of Workforce Development, No. 98-1546 (filed 7 Sept.
1999) (ordered published 25 Oct. 1999)
Meyers requested to substitute paid sick time for unpaid statutory
family leave. Her employer, Aurora, denied the request. The Department
of Workforce Development concluded that Aurora discriminated against
Meyers by interfering with her rights under the Wisconsin Family and
Medical Leave Act (WFMLA) when it refused to permit her to substitute
about 100 hours of paid sick time for the unpaid statutory leave. The
circuit court upheld the ruling.
The court of appeals, in an opinion written by Judge Schudson,
affirmed. In essence, Aurora contended that Meyer's state law claim
under WFMLA was preempted by federal law, specifically the Employee
Retirement Income Security Act (ERISA). The employees' sick time
benefits are funded through an ERISA plan. The court examined the
pertinent statutes and legislative history in holding that ERISA had no
such preemptive effect. Thus, Meyers was entitled to substitute her paid
sick time for the family leave time even though the plan authorized
"payment" only where the employee is actually sick.
Family Law
Child Support and Maintenance - Impact of Federal Garnishment
Law
Carpenter v.
Mumaw, Nos. 98-2874 and 98-3544 (filed 2 Sept. 1999) (ordered
published 25 Oct. 1999)
The parties were divorced in 1990 after 17 years of marriage. They
had two minor children. The husband was ordered to pay biweekly child
support and monthly maintenance. One of the issues on appeal was whether
the federal garnishment law, which limits the percentage of one's income
that can be garnished, applied in this case. In a decision authored by
Judge Vergeront, the appellate court concluded that it did not.
15 U.S.C.
section 1673 establishes maximum percentages of an individual's
earnings that can be garnished under varying circumstances.
"Garnishment" is defined in the law as "any legal or equitable procedure
through which the earnings of any individual are required to be
withheld for payment of any debt." (Emphasis supplied.) In this
case the husband argued that, under Wis. Stat. section
767.265(1), the order in the divorce judgment to pay child support
and spousal maintenance constitutes an assignment of all earnings and
therefore is a garnishment limited by the federal statute.
The appellate court disagreed. The Wisconsin statute cited above
provides that an order to pay child support and maintenance "constitutes
an assignment." However, if the court order does not require immediate
withholding, earnings are not withheld unless the payer becomes
delinquent. The court concluded that the statutory assignment in section
767.265(1) does not require earnings to be withheld and, therefore,
it is not necessarily a garnishment under the federal statute.
The husband cited two cases from other jurisdictions to support his
contention that an order to pay child support is a garnishment. However,
in both cases, earnings actually were being withheld. In this case the
court concluded that the divorce judgment ordering the husband to make
child support and maintenance payments is not a garnishment as defined
in federal law and therefore the percentage restrictions of federal law
do not apply.
The court did not reach the question of whether the statute applies
to individuals who are self-employed and control their own income.
Divorce - Enforceable Postnuptial Agreements - Separation
Agreements
Ayres v. Ayres,
No. 98-3450 (filed 8 Sept. 1999) (ordered published 25 Oct. 1999)
The parties were married for 11 years when the divorce judgment was
entered in September 1998. In late August 1996, after the parties had
agreed to obtain a divorce but before the summons and petition for
divorce were filed, they executed a marital settlement agreement for the
stated purpose of preparing for divorce. The agreement provided that it
was a contract, binding on both parties. The agreement divided the
property owned by the parties but also included provisions regarding
custody of the children, visitation, child support, maintenance, health
insurance, debt payment, and attorney fees. It further provided that
"both parties agree that the provisions of this agreement shall survive
any subsequent judgment of divorce and shall have independent legal
significance." It further specified that the agreement was a legally
binding contract, entered into for good and valuable consideration.
Five days after execution of this agreement, the wife filed a summons
and petition for divorce. Thereafter the husband filed a document
entitled "Withdrawal of Signatory Consent to Agreement," which
purportedly withdrew his consent to the marital settlement agreement.
The circuit court validated the withdrawal after concluding that the
marital settlement agreement was a stipulation enforceable only after
court approval.
The court of appeals, in a decision authored by Judge Myse, affirmed.
The critical issue was whether the marital settlement agreement executed
prior to commencing the divorce action was a contractual postnuptial
agreement enforceable as long as the agreement would not be inequitable
to either party according to Wis. Stat. section
767.255(3)(L). The husband argued that the agreement was one signed
in immediate contemplation of divorce and should be governed by section
767.10, which provides that in an action for annulment, divorce, or
legal separation, the parties may stipulate to such matters as division
of property, maintenance, and support, subject to court approval.
The court of appeals concluded that because this agreement was made
in contemplation of a divorce and because it specifically referred to
the impending divorce action and covered areas more typical of a divorce
stipulation, the document was a stipulation under section
767.10(1) and was not a post-nuptial agreement. Because the hus-band
withdrew his consent before any court approval, the agreement was
unenforceable.
Divorce - Reduction of Maintenance Conditioned on Payment of
Arrears
Benn v. Benn, No.
98-2950 (filed 26 Aug. 1999) (ordered published 25 Oct. 1999)
The parties were divorced in 1995 and the court ordered the husband
to pay child support and maintenance. The husband subsequently filed a
motion to reduce child support and to terminate maintenance. The circuit
court granted him a reduction in maintenance but only on the condition
that he first become current on his child support and maintenance
arrears. Among the issues on appeal was the lawfulness of this order. In
a decision authored by Judge Roggensack, the court of appeals concluded
that it was not.
Divorce is a statutory proceeding wherein the provisions a circuit
court may order are framed by the Legislature. Once the circuit court
made the determination that a reduction in support was warranted, it
cited no authority that permitted it to condition that reduction on the
payment of arrears. Nor was the court of appeals able to identify any
such authority. Therefore, it concluded that the circuit court erred in
conditioning the reduction of maintenance on the husband's payment of
arrears.
Fireworks
Sale of Restricted Fireworks Within the State to Nonresidents - Wis.
Stat. Section 167.10
State v. Victory Fireworks
Inc., Nos. 99-0243 et seq. (filed 30 Sept. 1999) (ordered
published 25 Oct. 1999)
Victory Fireworks Inc. sold fireworks, which are restricted under
Wis. Stat. section
167.10(1), to nonresidents within the boundaries of Wisconsin.
Multiple counts of violating this statute were filed against Victory.
Victory contended that the statute allows the sale of restricted
fireworks within the boundaries of Wisconsin as long as the sales are to
nonresidents. The circuit court agreed and dismissed the charges.
The court of appeals, in a decision authored by Judge Myse, reversed.
It held that the language of the statute clearly indicates that Victory
acted illegally in selling restricted fireworks to nonresidents within
this state. Said the court, the obvious legislative intent of section
167.10 is to restrict the possession and use of dangerous fireworks
in Wisconsin. The law seeks to avoid injuries from dangerous fireworks
to persons within this state without regard to residency. Allowing
nonresidents to purchase fireworks in this state would necessarily
involve possession of restricted fireworks here and would therefore be
inconsistent with the Legislature's intent.
Insurance
Liability Coverage - Fires - Church Activities - Subrogation
Tower Ins. Co. v.
Chang, No. 98-3594 (filed 29 Sept. 1999) (ordered published 25
Oct. 1999)
A fire caused damage to a church when two girls lit a candle in the
church's restroom and left it burning. The girls had helped at a pancake
supper and were on their way to confirmation class when they stopped in
the restroom. The insurance company reimbursed the church for the damage
and then sued the girls for subrogation. The circuit court dismissed the
complaint on summary judgment.
The court of appeals, in a decision authored by Judge Brown,
affirmed. At the outset, the court stressed that the girls were not
acting as "volunteers" within the meaning of the insurance policy. They
lit the candle between their service at the pancake dinner and before
the confirmation class began; they were not acting at the direction of
church officials. The court held, however, that the girls were
additional insureds given the ambiguous wording of the policy. The
policy covered liability for church activities or activities performed
on behalf of the church. A reasonable person could construe this broad
language as reaching "anything done in conjunction with a church
function, such as one church member injuring another while roughhousing
between events at a church picnic[.]" The court declined to rely on
precedent regarding the "scope of employment." Finally, the insurer was
not entitled to subrogation based on the theory that the girls committed
a criminal act. The insurer pled negligence by the girls; it did not
allege that they acted intentionally. The insurer "cannot now switch
horses midstream."
Exclusions - Snowmobiles
Mooren v. Economy Fire
& Casualty Co., No. 98-3596 (filed 28 Sept. 1999) (ordered
published 25 Oct. 1999)
An insurer issued a policy covering its insured's mobile home. The
insured was killed and another person, Mooren, was injured when their
snowmobiles collided. The insurer moved for summary judgment on the
ground that the policy excluded snowmobiles through its "recreational
land motor vehicle" exclusion. The circuit court denied the motion.
The court of appeals, in an opinion written by Judge Peterson,
affirmed. The court found that the policy's definition was ambiguous and
construed it to provide coverage. Had the insurer wanted its policy to
exclude snowmobiles, "it could have expressly identified snowmobiles or
vehicles operated on crawler treads in a definition of the phrase
'recreational land motor vehicle.'"
UM Coverage - Chain-reaction Accidents
Smith v. General Casualty
Ins. Co., No. 98-1849 (filed 7 Sept. 1999) (ordered published
25 Oct. 1999)
In this case the court faced an issue of "first impression: whether
our uninsured motorist (UM) statute, sec.
632.32(4), Stats., and case law interpreting it, mandate coverage in
a chain-reaction collision despite policy language to the contrary." The
facts involved a three-vehicle collision. The hit-and-run vehicle
collided with a truck that then swerved into the next lane, striking
Smith's car. Smith claimed that he was entitled to UM coverage under his
own policy even though his car never had direct contact with the
hit-and-run vehicle. The trial court granted summary judgment in the
insurer's favor.
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed. The UM statute mandates coverage for "[a]n unidentified motor
vehicle involved in a hit-and-run accident." Three cases had rejected UM
coverage under analogous circumstances. The court refused to distinguish
them based solely on the factor that the hit-and-run vehicle actually
struck the truck before the truck hit Smith's car. In short, the statute
mandates UM coverage only where there is "physical contact between the
hit-and-run vehicle and the vehicle whose driver is seeking UM
coverage."
Judge Fine dissented on the ground that the statute plainly
encompassed the scenario presented in this case.
Open Meetings Law
Public Notice - Sufficiency of Agenda Description
State ex rel. H.D.
Enterprises II v. City of Stoughton, No. 98-3112 (filed 16
Sept. 1999) (ordered published 25 Oct. 1999)
Wis. Stat. section
19.84(2) requires that a public notice set forth the time, date,
place, and subject matter of meetings of governmental bodies in such
form as is likely to reasonably apprise members of the public. In this
case the city council published an agenda that included consideration of
"licenses." It did not specify the specific licenses that would be
considered.
A lawsuit subsequently was filed asserting that the city council had
violated the open meetings law because the term "licenses" on its
published agenda was too general. [The license that was considered at
the meeting and which is at the heart of this lawsuit was a liquor
license.]
In a majority decision authored by Judge Roggensack, the court of
appeals concluded that the word "licenses" was specific enough to
apprise members of the public as to the subject matter of the meeting.
There is no requirement in the statute that the subject matter be
explained with any more specificity. The appellate court declined to
burden municipalities with an obligation to detail every issue that will
be discussed under every agenda item during meetings when that is not
mandated by statute.
Judge Vergeront filed a separate opinion concurring in part and
dissenting in part.
Torts
Ordinary Negligence - "Open and Obvious Dangers"
Wagner v. Wisconsin
Municipal Mut. Ins. Co., No. 99-0501 (filed 28 Sept. 1999)
(ordered published 25 Oct. 1999)
The plaintiff alleged that he slipped and fell on ice and snow that
had accumulated on a public sidewalk in front of a building from which
he was moving various boxes and loading them onto his truck. He
recognized that the sidewalk was slippery and believed the snow and ice
to be a hazard. Nevertheless, he proceeded with his mission.
He subsequently sued the city of Eau Claire for his damages. The city
moved for summary judgment, arguing that the plaintiff had confronted
"an open and obvious danger" and was therefore more negligent than the
city as a matter of law. Finding this doctrine applicable to the
plaintiff's case, the circuit court granted summary judgment, noting
that "to hold otherwise would essentially impose a zero tolerance on
municipalities for snow and ice buildup, which is unrealistic for cities
in Wisconsin." In a decision authored by Chief Judge Cane, the court of
appeals reversed.
Within the context of comparative negligence principles, the
application of the open and obvious danger doctrine is tantamount to a
determination that the plaintiff's negligence exceeded the defendant's
negligence as a matter of law. The appellate court concluded that,
because Wisconsin is a comparative negligence state, application of the
doctrine should be limited to cases where a strong public policy exists
to justify such a direct abrogation of comparative negligence
principles. It should not be used to resolve liability issues in
ordinary negligence cases, even where the plaintiff engaged in conduct
that would be clearly negligent or could reasonably be foreseen as
subjecting a party to a high risk of injury.
Rather, in the ordinary negligence case, if an open and obvious
danger is confronted by the plaintiff, it is merely an element to be
considered by the jury in apportioning negligence and will not operate
to completely bar the plaintiff's recovery. [In footnote the court noted
that it was addressing the "open and obvious danger" doctrine only as it
applies to cases involving ordinary negligence.]
Because no strong public policy exists in this case to justify the
direct abrogation of comparative negligence principles, the court of
appeals concluded that the apportionment of negligence should have been
left to a jury. Accordingly, the order granting summary judgment was
reversed.
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
