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Vol. 73, No. 8, August 2000 |
Previous
Page
Supreme Court Digest
by Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
| Civil Procedure | Corporations
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| Criminal Law | Criminal
Procedure |
| Debtor-creditor Law | Employment
Law |
| Family Law | Insurance
| Labor Law |
| Municipal Law | Torts |
Zoning |
Insurance
Exclusions - Loading Operations
Mullenberg v. Kilgust Mechanical
Inc., 2000 WI 66 (filed 23 June 2000)
Mullenberg drove truck for a common carrier that carried liability
insurance issued by Great West. Mullenberg stopped at Kilgust
Mechanical to deliver a load of pipe in 1996 and was injured
when a Kilgust employee caused the pipes to roll off the truck
onto Mullenberg. Mullenberg sued Kilgust and its insurer in federal
court, which in turn impleaded Great West as the primary insurer.
Great West argued that a policy exclusion foreclosed coverage.
The Seventh Circuit certified this case to the supreme court
to resolve the following issue of state law:
"Whether Wis. Stat. section
194.41 because of its use of the term 'negligent operation'
requires insurers to cover the loading activities of third-parties
and, if not, whether Wis. Stat. section
194.41 incorporates the Omnibus Statute, Wis. Stat. section
632.32, so that an insurer who issues and delivers a policy
outside of Wisconsin must comply with the requirements of the
Omnibus Statute."
The supreme court, in a decision written by Justice Bablitch,
concluded that "the word 'operation' in Wis. Stat.
section
194.41(1) includes loading and unloading and an individual
permissively unloading the vehicle is covered by the motor carrier's
policy." For this reason, the insurer's exclusion of
such coverage was invalid.
Labor Law
Wage Claims for On-duty Meal Periods - Suits Brought
Under State Wage Claim Law
German v. Wisconsin Department
of Transportation, 2000 WI 62 (filed 21 June 2000)
Officers of the Wisconsin State Patrol filed suit against
the Department of Transportation (DOT), asserting that they were
neither relieved from duty during their 30-minute lunch breaks,
nor compensated for this on-duty time as required by Wis. Admin.
Code section
DWD 274.02(3). As a result, the officers alleged that they
were entitled to compensation for these hours worked. Their suit
to compel payment of wages due was filed pursuant to Wisconsin's
wage claim law. See Wis. Stat. §§
109.01 and 109.03.
The DOT moved to dismiss the suit. The circuit court denied
the motion and the court of appeals affirmed the order of the
circuit court. In a majority opinion, which was authored by Justice
Bablitch, the supreme court affirmed the court of appeals.
The first issue before the court was whether the officers
could bring a claim under section
109.03(5) seeking wages for on-duty meal periods, or whether
the officers' exclusive remedy is to be found in the administrative
procedures codified in section
103.005. [Wis. Stat. chapter
103 is the Hours of Work Law]. The supreme court held that
section
103.005 is not the exclusive means to enforce a wage claim
grounded upon the administrative code section cited above and
that the right of action created by section
109.03(5) allows for claims based upon the hours and overtime
regulations to be brought in circuit court without first obtaining
administrative review by the Department of Workforce Development.
Secondly, the court held that the Legislature has waived the
state's immunity in chapter
109 for the type of claim brought by the officers in this
case.
Chief Justice Abrahamson filed a concurring opinion that was
joined by Justice Sykes.
Municipal Law
Wis. Stat. Chapter 68 Certiorari Proceedings - 42 U.S.C.
section 1983 Actions for Money Damages
Hanlon v. Town of Milton,
2000 WI 61 (filed 21 June 2000)
The plaintiff sought a conditional use permit from the Town
of Milton to operate a gravel quarry on his agricultural property.
The application was denied and the plaintiff sought certiorari
review pursuant to Wis. Stat. chapter
68. The circuit court reversed, but that decision was subsequently
overturned by the state court of appeals.
Thereafter, the plaintiff brought an action in federal district
court under 42
U.S.C. section 1983, alleging that the defendants deprived
him of his constitutional rights to due process and equal protection
of the law by denying his conditional use permit application.
The suit sought money damages. The town moved for summary judgment,
which was granted. The plaintiff appealed to the U.S. Court of
Appeals for the Seventh Circuit.
The federal appellate court certified a question of law to
the Wisconsin Supreme Court. In sum, the supreme court was asked
to address a narrow question of law: When a municipal administrative
determination gives rise to an equal protection claim for money
damages actionable under section
1983, must this equal protection claim be brought and heard
in a Wis. Stat. section
68.13 certiorari proceeding brought by the litigant?
In a unanimous decision authored by Justice Bablitch, the
supreme court concluded that a litigant cannot bring a claim
for money damages grounded upon 42
U.S.C. section 1983 in a certiorari proceeding brought under
Wis. Stat. chapter
68. The court further concluded that although the plaintiff
could have joined his section
1983 claim with his chapter
68 certiorari review, he was not required to do so. Failure
to join these actions does not preclude him from now bringing
his section
1983 claim.
County Sheriffs - Disciplinary Procedures - Arbitration
Clause in Collective Bargaining Agreements
Eau Claire County v. General
Teamsters Union Local No. 662, 2000 WI 57 (filed 20 June
2000)
The circuit court enjoined the Wisconsin Employment Relations
Commission from acting on a prohibited practice complaint filed
by the union. The union's complaint alleged that Eau Claire
County refused to arbitrate the dismissal of a deputy sheriff
pursuant to the collective bargaining agreement between the county
and the union. The circuit court dismissed the complaint, holding
that Wis. Stat. section
59.52(8)(c) establishes the circuit court as the exclusive
forum in which an aggrieved county law enforcement employee may
challenge an order of a civil service commission to dismiss,
demote, suspend, or suspend and demote the employee. The court
of appeals reversed the circuit court and the supreme court,
in a majority decision authored by Chief Justice Abrahamson,
affirmed the court of appeals.
The issue before the supreme court was whether a county law
enforcement employee's appeal to circuit court pursuant
to the statute cited above is the employee's exclusive appeal
procedure in the disciplinary context. Or may the county law
enforcement employee use the grievance procedures, including
arbitration, provided in the applicable collective bargaining
agreement in lieu of an appeal to the circuit court?
The majority concluded that the circuit court is not the exclusive
forum in which a county law enforcement employee may challenge
an order of the civil service commission to dismiss, demote,
suspend, or suspend and demote the employee. The court held that
after a civil service commission issues such an order, the employee
may either appeal to the circuit court pursuant to the statute
cited above or pursue grievance procedures, including arbitration,
as provided for in any applicable collective bargaining agreement.
The employee may not, however, pursue both remedies.
At numerous points in the decision, the court distinguished
City of Janesville v. WERC, 193 Wis. 2d. 492, 535 N.W.2d
34 (Ct. App. 1995), wherein the court of appeals held that when
an irreconcilable difference exists between a statutory procedure
and the arbitration provisions of a collective bargaining agreement,
the statute controls. City of Janesville dealt with municipal
public safety employees, whereas this case involves county law
enforcement personnel.
Justice Sykes filed a dissenting opinion that was joined by
Justice Prosser.
Torts
Child Sexual Abuse - Negligence - Failure to Warn
Gritzner v. Michael R.,
2000 WI 68 (filed 23 June 2000)
A 10-year-old boy, Michael, sexually assaulted a 4-year-old
girl, Tara. The assault occurred at Michael's home, where
he lived with his mother and his mother's boyfriend, Bubner.
Tara's parents sued Bubner (and others), alleging that Bubner
had: 1) negligently failed to warn them of Michael's propensity
to engage in inappropriate sexual behavior; and 2) negligently
failed to control Michael's conduct. The circuit court dismissed
both claims. The court of appeals reinstated the claim for negligent
failure to control but reluctantly affirmed the dismissal of
the failure to warn claim. Both parties appealed.
The supreme court affirmed in part and reversed in part. Justice
Wilcox wrote the lead opinion. All members of the court agreed
that the case should be remanded. Those joining the lead opinion
would affirm the court of appeals on both claims. More particularly,
the lead opinion concludes that public policy considerations
preclude the claim for negligent failure to warn. The justices
joining the lead opinion were particularly concerned that "in
this case there are no just and sensible guidelines for defining
liability for negligent failure to warn" (¶ 36). The
lead opinion did, however, recognize the claim for negligent
failure to control "only because liability for failure to
control can be imposed on distinct, narrow grounds that do not
raise the same public policy considerations that preclude liability
for failure to warn." Such claims may be predicated on the
doctrine of in loco parentis or on the theory that the adult
(Bubner) voluntarily undertook Tara's protection.
Chief Justice Abrahamson concurred in an opinion that agreed
with the lead opinion's "failure to control" analysis.
The concurrence asserted, however, that the public policy factors
should be applied first by the circuit court based on a complete
evidentiary record. The concurrence was joined by Justices Bablitch,
Bradley, Crooks, and Sykes. This means that the lead opinion
is the court's opinion on the negligent failure to control,
but that the concurrence is the opinion of the court on the negligent
failure to warn.
Collateral Source Rule - Medical Assistance Payments
Ellsworth v. Schelbrock,
2000 WI 63 (filed 22 June 2000)
The defendant struck a car driven by the plaintiff, who was
severely injured. The trial court found that the plaintiff had
received past medical services valued at nearly $600,000. The
state-sponsored Medical Assistance program (Title 19), which
provides health insurance to certain needy individuals, had paid
about $355,000 for past medical expenses. (By law, the health-care
providers had to accept the payment schedules set by Title 19.)
The trial court rejected the defendant's argument that she
was limited to the actual amount of the payments. The court of
appeals affirmed.
The supreme court, in a decision written by Justice Bablitch,
affirmed as well. The collateral source rule provides that "the
amount of damages awarded to a person injured because of another
individual's tortious conduct is not reduced when the injured
party receives compensation from another source, such as insurance
or sick leave." The court held that the rule applies to
Medical Assistance payments. The collateral source rule imposes
"upon the tortfeasor full responsibility for the loss he
has caused." The defendant was not entitled "to reap
the benefit of [the plaintiff's] eligibility for public
assistance or from the government's economic clout in the
health care market place" (¶ 17). The court also rebuffed
several other arguments rooted in the county's right to
subrogation and several public welfare statutes.
Justice Sykes dissented, joined by Justices Wilcox and Crooks.
Settlements - Covenants not to Sue - Admissibility
Morden v. Continental AG,
2000 WI 51 (filed 16 June 2000)
The plaintiffs sustained serious injuries when their car rolled
over following a tire blowout. They sued the car's manufacturer
(VW), the dealer, and the tire manufacturer, Continental AG.
Prior to trial, the plaintiffs settled with VW. A jury returned
verdicts for the plaintiff on claims alleging both negligence
and strict product liability. The trial judge approved the verdict
as to the negligence finding, but the jury's defective answers
to the strict liability questions precluded entry of judgment
on that claim. The court of appeals reversed on the ground that
there was insufficient evidence of Continental AG's negligence.
The supreme court, in a decision written by Justice Prosser,
reversed the court of appeals. The case presented four issues
on appeal, but the supreme court needed to address only two.
First, the court held that the evidence was sufficient to sustain
the judgment against Continental AG. Since this discussion is
extremely fact-intensive and involves application of long-settled
legal principles, it will not be addressed further.
The second issue alleged that error occurred when the trial
judge excluded evidence about a settlement between the plaintiffs
and VW, the car's manufacturer, about two weeks before trial.
In exchange for $500,000, the plaintiffs executed a covenant
not to sue VW, which the trial judge excluded. Section 904.08
generally excludes evidence of compromise or settlement except
where it is relevant to show bias, particularly where it appears
that a witness may have changed his or her testimony. In this
case, the trial judge did not abuse his discretion by excluding
the covenant not to sue. The judge found that an expert witness
had not "changed" his testimony; rather, he had not
been asked about certain facets of the crash. And the omissions
did not amount to a "change" in testimony. In sum,
Continental AG was not entitled to a new trial based on the exclusion
of this evidence.
Contributory Negligence - Mental Illness
Jankee v. Clark County,
2000 WI 64 (filed 22 June 2000)
While hospitalized at a county mental health complex, Jankee
severely injured himself while attempting to escape out of a
window. Jankee sued the county and various contractors. The circuit
court granted summary judgment to the contractors based on the
government contractor immunity doctrine. The judge dismissed
the claims against the county on the ground that Jankee's
contributory negligence exceeded that of the county (if any).
The court of appeals affirmed as to the contractors but reversed
as to the county. The court held that Jankee's conduct should
be assessed under a subjective standard of care because of his
mental illness and the circumstances of his commitment.
The supreme court, in a decision written by Justice Prosser,
reversed as to the claim against the county. (The court did not
reach the plaintiff's argument that the defendant contractors
could not claim immunity as government contractors.) The supreme
court held that Jankee's own negligence exceeded any attributed
to the defendants, including the county, as a matter of law.
The majority opinion extensively discusses the standard of care
applicable to mentally ill plaintiffs. It ruled that Jankee's
conduct must be assessed under a reasonable person standard of
care, not a subjective test, except in two relatively narrow
instances addressed by prior cases and not implicated in this
case. See ¶ 78.
The court stressed two points. First, Jankee's hospitalization
arose because he failed to comply with his medication program,
something a reasonable person would not have done. Second, Jankee's
injury occurred during an escape attempt which, under the circumstances,
also failed the reasonable person standard ("Jankee was
a major cause of his own injuries." ¶ 89). In short,
Jankee's conduct failed the reasonable person standard and
did not fit within the two narrow exceptions set forth by the
cases.
Chief Justice Abrahamson, joined by Justice Bradley, dissented
on a variety of grounds, including the ripeness of the case for
summary judgment and the policy determination that the institutionalized
mentally ill should be held to a reasonable person standard.
Zoning
Equal Protection - Substantive Due Process - Procedural
Due Process
Thorp v. Town of Lebanon,
2000 WI 60 (filed 21 June 2000)
The plaintiffs own approximately 255 acres in the Town of
Lebanon, which is located in Dodge County. The property is a
mix of open land, woods, and wetlands. Before 1994, the land
was zoned with a classification of rural development. In that
year, the Town of Lebanon Board of Supervisors approved a rezoning
map that extensively revised the zoning classification of most
of the town from a rural development classification to a general
agricultural classification. The Dodge County Board of Supervisors
thereafter amended its official zoning map to incorporate the
town's zoning reclassifications.
The plaintiffs subsequently petitioned the town to rezone
their property to its original classification. The town acquiesced,
but the Dodge County Board of Supervisors declined to further
amend the county zoning map, and thus the plaintiffs' entire
property remained zoned in an agricultural classification.
The plaintiffs filed suit against the town and the county
seeking declaratory, injunctive, and monetary relief. They claimed
that the town and county zoning ordinances were invalid and violated
their due process and equal protection rights.
In a majority decision authored by Justice Crooks, the supreme
court first considered whether the plaintiffs complied with the
notice of claims statute. The court concluded that, as to their
federal constitutional claims, the plaintiffs did not have to
comply with the Wisconsin notice statute. See Felder v. Casey,
487 U.S. 131 (1988). Further, upon review of the record, the
court concluded that the plaintiffs did in fact comply with the
notice statute.
Next, the court concluded that the plaintiffs' complaint
stated a valid claim for relief under the Equal Protection Clause.
The complaint had to allege facts showing that the rezoning ordinance
was not rationally related to its purpose. This was satisfied
by allegations that the highest and best-suited use of the plaintiffs'
property is not agricultural but rather rural development, and
that the new zoning map left numerous "islands" throughout
the town that have not been rezoned and have been left with a
rural development classification without any logical explanation.
The county argued that the plaintiffs are barred from making
an equal protection claim because they did not avail themselves
of an adequate state law remedy, namely certiorari review under
Wis. Stat. section 68.13. The court rejected this argument because
the plaintiffs could not have received adequate relief by certiorari
review of their equal protection violation claim. Monetary damages
are not available to a plaintiff seeking relief under section
68.13. While a plaintiff may join a claim for monetary damages
with a chapter
68 certiorari review, he or she is not required to do so.
The court next considered the plaintiffs' due process
claims. It held that they did not state a claim for a violation
of substantive due process. The Substantive Due Process Clause
protects individuals against governmental actions that are arbitrary
and wrong, regardless of the fairness of the procedures used
to implement them. It forbids a government from exercising power
without any reasonable justification in the service of a legitimate
governmental objective. The court concluded that the plaintiffs'
complaint did not make any allegations that the zoning ordinance
was clearly arbitrary and unreasonable.
With regard to the procedural due process claim, the court
concluded that the state provides the plaintiffs with an adequate
post-deprivation remedy in the form of certiorari. The adequate
state remedy available to the plaintiffs was to petition for
certiorari review under section
68.13. Because the plaintiffs did not use the available state
law remedy, they may not now claim that they were denied procedural
due process.
Lastly, the court considered whether the Town of Lebanon was
properly dismissed from the lawsuit below. The court of appeals
found that the town could not be dismissed as to the equal protection
claim because that claim related to the invalidity of the zoning
ordinance itself. The supreme court agreed with the court of
appeals.
Chief Justice Abrahamson filed a concurring opinion in which
she joined the majority opinion except for the discussion about
substantive due process. Justices Bradley and Sykes joined the
concurrence.
Regulation of Game Bird Farms - DNR Authority -
Municipal Immunity - Equitable Estoppel
Willow Creek Ranch v. Town
of Shelby, 2000 WI 56 (filed 20 June 2000)
Willow Creek owns 115 acres of land in the Town of Shelby.
The property is zoned as "exclusive agricultural."
In 1993, Willow Creek contacted the town to inquire whether a
zoning change would be required in order to operate a game bird
farm on its property. The town chairperson allegedly informed
Willow Creek that no county rezoning was needed to make the change.
Shortly before opening the farm in late 1994, and after already
having expended substantial sums of money, Willow Creek obtained
a Department of Natural Resources (DNR) license to operate a
game bird farm.
The county thereafter notified Willow Creek that because it
was conducting a commercial hunting enterprise on property zoned
exclusively for agricultural purposes, it needed to petition
for rezoning. Although the county ultimately granted the rezoning
petition, it was vetoed by the Town of Shelby. Willow Creek filed
multiple lawsuits in the wake of the town's actions, seeking
declaratory judgment, injunctive relief, and money damages. These
lawsuits were dismissed by the circuit court on summary judgment.
The court of appeals affirmed.
In a majority decision authored by Justice Bradley, the supreme
court affirmed the court of appeals. The first issue considered
by the court was whether DNR's exclusive right to license
the operation of game bird farms precludes the town and county
from regulating the zoning of such farms. The court concluded
that DNR's statutory authority does not preclude the authority
of the town and county to regulate the zoning of the game bird
farm.
The court also concluded that the actions of the town and
county were immune from suit under Wis. Stat. section
893.80(4). Willow Creek argued that the denial of rezoning
was a ministerial duty for which there is no municipal immunity.
The supreme court disagreed. It concluded that decisions to enforce
a zoning ordinance and to veto zoning changes represent legislative
acts and are therefore discretionary decisions subject to immunity
protection. The immunity bars Willow Creek's suit for money
damages as well as its suit for injunctive relief. There is no
immunity under the statute cited above for declaratory actions;
however, because the actions of the town and the county were
neither illegal nor unconstitutional, declaratory relief is unavailable.
Finally, the court considered whether the town and county
should be equitably estopped from asserting immunity as a defense
due to the allegedly negligent misrepresentations of the town
chairperson. The court concluded that although municipalities
are not wholly immune from the doctrine of equitable estoppel,
it is well established that erroneous acts or misrepresentations
of municipal officers do not afford a basis to estop a municipality
from enforcing zoning ordinances enacted pursuant to the police
power.
Justice Prosser filed a dissenting opinion that was joined
by Justices Bablitch and Crooks.
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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