Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Constitutional Law | Courts | Criminal Procedure | Employment Law | Family Law | Insurance | Torts |
Constitutional Law
School Choice - Constitutionality of Amended Milwaukee Parental
Choice Program
Jackson v. Benson, No.
97-0270 (filed 10 June 1998)
In 1989 the Wisconsin Legislature enacted the original Milwaukee
Parental Choice Program (MPCP). As amended in 1993, the MPCP permitted
up to 1.5 percent of the student membership of the Milwaukee Public
Schools (MPS) to attend at no cost to the student any private
nonsectarian school located in the city of Milwaukee, subject to certain
eligibility requirements.
In 1995, as part of the biennial budget bill, the Legislature amended
the MPCP in several ways. The limitation that participating private
schools be "nonsectarian" was removed. Second, the Legislature increased
to 15 percent in the 1996-97 school year the total percentage of MPS
membership allowed to participate in the program. Third, the Legislature
deleted some of the duties of the State Superintendent of Public
Instruction with respect to the program. The Legislature also amended
the original MPCP so that the state, instead of paying participating
schools directly, is required to pay the aid to each participating
student's parent or guardian. The state sends the check directly to the
private school and the parent or guardian restrictively endorses the
check for the use of the private school. The Legislature also added an
"opt-out" provision prohibiting a private school from requiring a
student attending the private school under the choice program to
participate in any religious activity if the pupil's parent or guardian
submits a written request that the pupil be exempt from such
activities.
In a majority opinion authored by Justice Steinmetz, the supreme
court disposed of numerous constitutional issues relative to the amended
MPCP program. It held:
1) The amended MPCP does not violate the Establishment Clause of the
First Amendment to the U.S. Constitution because it has a secular
purpose, it will not have the primary effect of advancing religion, and
it will not lead to excessive entanglement between the state and
participating sectarian private schools.
2) The amended MPCP does not violate the religious establishment
provisions of Article I, section 18 of the Wisconsin Constitution.
3) The amended MPCP is not a private or local bill enacted in
violation of the procedural requirements mandated by Article IV, section
18 of the Wisconsin Constitution.
4) The amended MPCP does not violate the Uniformity Provision of
Article X, section 3 of the Wisconsin Constitution.
5) The amended MPCP does not violate Wisconsin's public purpose
doctrine, which requires that public funds be spent only for public
purposes. The court concluded that the amended MPCP fulfills a valid
public purpose and that it contains sufficient and reasonable controls
to attain its public purpose.
6) Plaintiff NAACP's facial equal protection attack must fail because
the NAACP did not sufficiently allege that the state enacted the amended
MPCP with the discriminatory intent necessary to establish an equal
protection claim.
The court also considered the issue of whether children who were
eligible for the amended MPCP when the court issued an injunction with
respect to the program on Aug. 25, 1995, and who subsequently enrolled
in private schools, should be eligible for the program if the injunction
is lifted. The majority ordered the injunction dissolved and therefore
removed the disability that the injunction had placed on the school
children, so that with respect to educational status, eligibility under
the amended MPCP is determined on the date the injunction was
issued.
Justice Bablitch filed a dissenting opinion which was joined by Chief
Justice Abrahamson. Justice Bradley did not participate in this
case.
First Amendment - Constitutionality of Public Nudity Ordinance -
Nude Dancing
Lounge Management Ltd. v. Town of
Trenton, No. 96-1853 (filed 18 June 1998)
Lounge Management operates a nightclub in the town of Trenton. It has
a liquor license and offers entertainment in the form of nude dancing at
its facility. This case concerns the club's constitutional challenge to
Trenton's ordinance banning public nudity in licensed establishments,
claiming that the ordinance is facially overbroad.
The ordinance provides that "there shall be no public nudity at a
public licensed establishment." It defines "nudity" to mean "the showing
or exposing of the human male or female genitals, pubic area or buttocks
with less than a full opaque covering, or of the female breast with less
than a fully opaque covering of any portion thereof below the top of the
nipple." It further provides that the term "public" means "any place of
accommodation or amusement, which shall be interpreted broadly to
include, but not be limited to, places of business or recreation,
hotels, motels, resorts, restaurants, taverns and any place where
accommodations, amusement, goods or services are available either free
or for a consideration. Campgrounds are also included."
The ordinance goes on to provide for a series of exceptions, for
example, activities in rooms privately rented in a hotel, motel, resort,
or camper in a campground "if the person(s) involved rented such private
facility or owns it and has not invited or allowed members of the
public, who are not immediate family members, to be at such location."
Another exception is "the proper use of a bathroom facility by a male or
female in an enclosed area where the person is of the same sex
designated for such room, and is not engaged in for any sexual or
exhibitionist purpose to or in front of or adjacent to other
persons."
In a majority opinion authored by Justice Bradley, the supreme court
concluded that Trenton's antipublic nudity ordinance is facially
overbroad in violation of the First Amendment to the U.S.
Constitution.
The court began its analysis by noting that nude dancing has been
acknowledged to include an expressive element, and accordingly is
entitled to at least some degree of constitutional protection. It also
is a recognized constitutional principle that when speech and nonspeech
elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element can
justify incidental limitations on First Amendment freedoms. However, the
U.S. Supreme Court has splintered over the permissible manner in which
the government may reasonably regulate the protected expression inherent
in nude dancing.
Applying its interpretation of contemporary U.S. Supreme Court
doctrine, the court concluded that it should conduct its overbreadth
analysis by inquiring whether the ordinance in question is drafted in a
manner that addresses the secondary effects of adult entertainment such
as prostitution, sexual assault, and other criminal activity, without
also suffocating other protected expression in a real and substantial
manner. After conducting this inquiry, the court found that the Trenton
ordinance encompasses expressive activities that do not implicate the
"secondary effects" which the town may legitimately seek to
regulate.
Several hypothetical situations exist in which the ordinance would
impinge upon protected expression involving public nudity. Such examples
include public exhibition of art works or of artwork or artifacts
depicting nudity, public display of a television program including brief
nudity, and any form of expressive live nudity that occurs in a "public
licensed establishment" as that term is defined in the ordinance. Such
overbreadth, said the majority, is largely the result of the generalized
terminology used in the ordinance and its specific command that portions
of the ordinance be "interpreted broadly." The ordinance does not
prohibit nude dancing; it prohibits all public nudity. It does not limit
its application to establishments licensed to sell alcohol; it applies
to all publicly licensed establishments. The ordinance does not limit
itself to live nudity; it apparently applies to all forms of nude
depiction. Accordingly, the ordinance regulates expressive conduct
protected by the First Amendment that has no connection to the potential
harmful secondary effects arising from nude dancing in liquor-licensed
establishments and it does so in a real and substantial manner.
Finally, due to the existing structure and wording of the ordinance,
the court concluded that it was unable to cure the overbreadth by either
striking enough of the ordinance or providing a sufficiently narrow
construction that is not flatly inconsistent with the expressed intent
as set forth in its existing terms.
Justice Steinmetz, joined by Justice Wilcox, filed a dissenting
opinion.
Courts
Tardy Attorneys - Power of Circuit Courts to Impose Fines for
Violations of Pretrial Scheduling Orders
Anderson v. Circuit Court for
Milwaukee County, No. 96-3281 (filed 17 June 1998)
Attorney Scott Anderson was representing a defendant in a criminal
case before Judge Robert Crawford in Milwaukee County. He arrived at the
courtroom at 8:38 a.m. for a jury trial scheduled to commence at 8:30
a.m. The date and time of trial were established in a pretrial
scheduling order signed by the judge. When Anderson arrived in court,
the judge indicated that he starts his jury trials at 8:30 a.m. and that
on the date in question he was going to attempt to try two cases. He
asked for the reason for Anderson's tardiness and Anderson responded
that he did not have any reasonable explanation. The judge then
indicated that he was going to exercise his inherent authority and fine
Anderson $50. The court specifically indicated that it was not holding
Anderson in contempt of court under Chapter 785 of the Wisconsin
Statutes.
The court of appeals reversed the circuit court. It concluded that
the proper way to sanction tardy attorneys is through the
non-summary contempt procedure codified in Wis. Stat. section
785.03(1). [Case law precedent would not have permitted the circuit
court in this case to find Anderson summarily in contempt under
chapter 785 for arriving late to a court proceeding.] The appellate
court further concluded that there is no residual of inherent authority
that exists outside the contempt statutes permitting the trial court to
fine a lawyer for arriving late.
In a unanimous decision authored by Chief Justice Abrahamson, the
supreme court affirmed the decision of the court of appeals but did so
on different grounds. The court concluded that Wis. Stat. (Rule)
sections 802.10(7) and 805.03 apply to criminal cases as well as civil
cases and that circuit courts have authority to sanction a tardy lawyer
under these statutes when the attorney fails to obey a pretrial
scheduling order. The power to sanction under these statutes is
independent of the court's contempt power.
The supreme court counseled that judges should use caution in
imposing sanctions against attorneys. It also is important for circuit
courts to make a record of the reasons for imposing sanctions. To make a
record, the circuit court should, as it did in this case, give the
attorney an opportunity to explain his or her tardiness. The record must
address the disruptive impact on the court's calendar resulting from the
attorney's late arrival, the reasonableness of the attorney's
explanation, and the severity of the sanction to be imposed.
In this case the supreme court concluded that the circuit judge
erroneously exercised discretion in fining Anderson. This is because the
circuit court did not state how the eight-minute delay would affect the
court's ability to try the two cases that day or other calendared
matters, or why those eight minutes warranted a $50 sanction. The record
does not show whether the delay caused any problems for jurors, victims,
witnesses, police, or court staff. It does not show whether the attorney
was frequently tardy. In sum, the record does not demonstrate that the
circuit court examined the relevant facts, applied a proper standard of
law, or used a demonstrated rational process to reach a conclusion that
a reasonable judge could reach.
Because the court concluded that a circuit judge has authority under
the statutes cited above to impose sanctions on attorneys who are tardy
to scheduled court appearances, it did not need to discuss a circuit
court's inherent power to impose sanctions under the circumstances in
this case.
Finally, the appellate court noted that, in order to adjudicate cases
in a timely manner and to serve the interests of litigants, circuit
courts must have the power to effectively manage court business. To this
end, lawyers must comply with scheduling orders. Circuit courts, in
turn, must consider lawyers' scheduling difficulties and the scheduling
conflicts presented by other courts. In short, circuit courts and
lawyers must be considerate of each other's needs and must treat each
other with respect and fairness, bearing in mind their respective roles
and concerns.
Criminal Procedure
Jury Trials - Statute Providing for Six-person Juries in Misdemeanor
Cases Held Unconstitutional - Common Law Name Changes Recognized
State v. Hansford, No.
97-0885-CR (filed 19 June 1998)
This case was before the Wisconsin Supreme Court on certification
from the court of appeals. The certified question was whether Wis. Stat.
section 756.096(3)(am), which provides for six-person juries in criminal
misdemeanor cases, violates Article I, section 7 or Article I, section 5
of the Wisconsin Constitution.
In a unanimous decision authored by Justice Crooks, the court
concluded that the statute violates Article I, section 7 of the
Wisconsin Constitution that guarantees the right to a jury of 12 persons
in all criminal cases. Such was the common law when the Wisconsin
Constitution was adopted.
A second issue in this case was whether the circuit court committed
reversible error at trial when it denied the defendant's request for a
jury instruction on the common law right to change one's own name. This
issue arose in connection with the state's claim that the defendant
obstructed the arresting officer by using a name other than his given
name. The supreme court concluded that a common law right to change
one's name through consistent and continuous use is recognized in
Wisconsin, as long as the change is not effected for a fraudulent
purpose. In so finding, the court disagreed with the position of the
circuit court, which found that there are only two avenues by which an
individual may change his or her name: 1) by marriage or divorce; or 2)
by court order pursuant to Wis. Stat. section 786.36.
Rape Shield - Exculpatory Evidence - Time of Offense
Instruction
State v. Dodson, No.
96-1306-CR (filed 19 June 1998)
Dodson was convicted of three counts of sexual assault involving a
child. The court of appeals reversed one count based upon an
unconstitutional exclusion of exculpatory evidence but affirmed the
other two counts.
The supreme court, in an opinion written by Justice Bablitch, held
that the improper exclusion of the evidence justified the reversal of
the two remaining counts as well. The excluded evidence involved proof
"of prior sexual assaults on the victim based on sexual intercourse by a
third party." The defense contended that this evidence suggested an
alternative source of the victim's physical injury and provided an
alternate source of the child's sexual knowledge. In a fact-intensive
opinion applying the rape-shield doctrine, the court concluded that this
evidence affected the two counts alleging sexual contact as well as the
single count of sexual intercourse.
A second issue concerned the propriety of a jury instruction on the
state's obligation to prove the time of the offense. The court concluded
that it "would not be error to submit Wis JI - Criminal 255 to the jury
because Dodson did not offer an alibi defense and there was no confusion
about the separateness of the charges, each involving different conduct,
occurring within the time frame alleged." In this case, however, the
trial judge gave a modified version of Wis JI - Criminal 255 that was
"internally inconsistent and contradictory." This undoubtedly misled and
confused the jury.
Justice Crooks concurred in the mandate based upon the court's
resolution of the exculpatory evidence issue, but disagreed that the
erroneous instruction justified a new trial. Justices Wilcox and
Steinmetz joined the concurrence. Justice Bradley filed a separate
concurrence stating that the court should not have reached the
exculpatory evidence issue.
Employment Law
Wrongful Discharge - Tort of Misrepresentation
Tatge v. Chambers & Owen Inc., No. 95-2928 (filed 19
June 1998)
Tatge began employment with the defendant in 1981. In 1990 he signed
an employee handbook acknowledging that he was employed "at will." In
1993 Tatge balked and later refused to sign a nondisclosure and
noncompete agreement. Tatge contended that he was informed that
"nothing" would happen if he refused to sign but he later was terminated
for his failure to sign the agreements.
Tatge sued the employer under various theories. The trial judge
upheld the restrictive covenants under section 103.465 of the Wisconsin
Statutes. In a bifurcated trial, the jury found that Tatge was an
at-will employee but that the employer had "made a representation of
fact that Tatge was entitled to ongoing employment and termination only
for cause." The jury also found for Tatge on a negligent
misrepresentation claim and awarded him $250,000 (minus 40 percent for
Tatge's causal negligence). The judge later dismissed this claim during
postverdict motions. The court of appeals affirmed.
The supreme court, in an opinion written by Justice Wilcox, also
affirmed. The court held that "a breach of an employment contract is not
actionable in tort" because such claims create "an irreverent marriage
of tort and contract law. ... [N]o duty to refrain from
misrepresentations exists independently of the performance of
the at-will employment contract." Tatge's misrepresentation claim was
inextricably tied to his termination.
The court also held that "a contract cause of action for wrongful
discharge may not be maintained under [Brockmeyer v. Dun &
Bradstreet, 113 Wis. 2d 561 (1983)] where an at-will employee is
terminated for failing to sign a nondisclosure/noncompete agreement."
Tatge failed to identify a fundamental, well-defined public policy that
triggered the Brockmeyer exception to at-will employment.
Chief Justice Abrahamson, joined by Justice Bradley, dissented and
argued that "the court should recognize the right of an employee at-will
who claims that a nondisclosure agreement is void under Wis. Stat. sec.
103.465 to sue for wrongful discharge."
Family Law
Termination of Parental Rights - Warnings
Marinette County v. Tammy and Anthony
C., No. 97-2946 (filed 19 June 1998)
The county filed petitions to terminate parental rights. The judge
dismissed the petitions based upon his conclusion that several CHIPS
orders lacked the warnings required by sections 48.356(2) and
48.415(2)(a) of the Wisconsin Statutes. On bypass from the court of
appeals, the issue was framed as: Do these statutes "require that each
and every written CHIPS order affecting an out-of-the home placement of
a child have a written TPR warning attached, when the TPR ground
asserted is the continuing need of protection or services"? The bypass
petition questioned the soundness of In re D.F., 147 Wis. 2d
486 (Ct. App. 1988).
The supreme court, in an opinion written by Justice Geske, reversed
the court of appeals but found it unnecessary to probe In re
D.F. in light of the record in this case and the applicable
statutes. The court held that the "plain language of Wis. Stat. sec.
48.356(2), as referenced in Wis. Stat. sec. 48.415(2)(a), requires that
the warning notice apply only to orders removing children from placement
with their parents or denying parental visitation, pursuant to Wis.
Stat. secs. 48.345, 48.357, 48.363 or 48.365." The record revealed that
all pertinent orders carried the requisite notice.
CHIPS Cases - Determining the "Best Interests of the Child" in
Connection with Return of Child to Natural Parent(s)
Sally T. v. Milwaukee County
Department of Health and Human Services, No. 96-3147 (filed 24
June 1998)
This appeal arose from a circuit court decision to return the
petitioner's foster child to the biological mother. The petitioner
argued that the circuit court incorrectly determined that compliance
with the return home conditions in a child in need of protection or
services (CHIPS) dispositional order created a presumption that the
return home was in the child's best interests. Although the
dispositional order in this particular case has now expired, the supreme
court addressed the issue because it presents what the court
characterized as a matter of great public concern and offers an
opportunity to provide guidance to the circuit courts.
In a decision authored by Justice Bradley, a unanimous supreme court
concluded that compliance with the return home conditions in a CHIPS
dispositional order is not dispositive of a child's best interests. The
circuit court applied a presumption that compliance with the return home
conditions mandates return to the biological parent. The validity of
this presumption under Wisconsin law was rejected by the supreme court.
The court acknowledged that in most cases in which a biological parent
has successfully met the conditions of return, the child can and should
be returned to the parent. Affected parents continue to maintain a
constitutional right in the care and custody of their child unless
parental rights are terminated, and that right cannot needlessly be
impugned once the parent has complied with the demands made and
strictures imposed by the reviewing court. However, the circuit court
cannot close its eyes to detrimental conditions impacting the welfare of
the child that have arisen since the imposition of the controlling
dispositional order and the conditions of return therein.
Thus, the court determined that the best interests of the child
standard is to be defined in relation to the child and should not be
used as a euphemism for the biological parent's compliance with the
return home conditions of a dispositional order. Compliance with the
conditions of a CHIPS dispositional order does not create a presumption
that it is in the child's best interests to be returned to the
biological parents.
Guardians ad Litem - Immunity
Paige B. v. Molepske, No.
96-2620 (filed 26 June 1998)
The circuit court appointed an attorney to act as the guardian ad
litem (GAL) for two children during a divorce and custody proceeding.
Despite allegations that the father was abusing the children, the court
awarded joint custody. The GAL had recommended that custody be with the
mother, although he did not specifically rely upon the sexual abuse
allegations. The father was later convicted of sexually abusing the
children. The children sued the GAL alleging that he had negligently
performed his duties. The circuit court granted summary judgment to the
GAL based upon absolute quasi-judicial immunity. The court of appeals
affirmed.
The supreme court, in an opinion written by Justice Steinmetz, also
affirmed. When appointed under Wis. Stat. section 767.045, the GAL's
role "is intimately related to the judicial process." The GAL and the
circuit court are entrusted with protecting the best interests of the
child according to identical standards. The GAL's role is "not strictly
to provide legal counsel" for the child; the GAL must act independently.
The court feared that opening the door to liability would result in a
shortage of attorneys willing to perform as GALs and perhaps "warp" the
judgment of those who did serve. Thus, the GAL is absolutely immune from
negligence liability for acts within the scope of his or her statutory
authority, although the court did catalogue a number of other legal
"mechanisms" for disciplining miscreant GALs (for example, the Rules of
Professional Conduct, judicial oversight).
Insurance
Duty to Defend - Slander of Title - Negligent Supervision
Doyle v. Engelke, No.
96-0680 (filed 24 June 1998)
This case arose out of an antiabortion demonstration. The plaintiff
sued the defendants, including an antiabortion group (WCVY), for falsely
stating that she had injured a protester and for later filing false
security agreements that encumbered the plaintiff's assets. St. Paul
Fire & Marine Insurance Co. insured WCVY under a comprehensive
general liability policy. The circuit court granted summary judgment to
St. Paul, finding that it had no duty to defend or indemnify WCVY on any
of the plaintiff's claims. The court of appeals affirmed.
The supreme court, in an opinion written by Justice Bradley, affirmed
in part and reversed in part. First, the court held that St. Paul had a
duty to defend or indemnify: WCVY's alleged negligent supervision of its
employees resulted in a "bodily injury" that occurred as part of a
covered "event." Nor did the intentional acts exclusion apply since the
plaintiff alleged that WCVY negligently supervised its employees, a
claim that stood apart from whether the employees themselves
intentionally caused harm. Second, with respect to the slander of title
claim, the court held that St. Paul had no obligation to defend or
indemnify. Slander of title is a distinct form of wrongdoing that stood
outside of the policy's coverage for "libel or slander."
Chief Justice Abrahamson and Justice Geske did not participate.
Notice of Settlement - Prejudice - Burden of Proof
Ranes v. American Family Mut. Ins.
Co., No. 97-0441 (filed 19 June 1998)
The Raneses were severely injured in a car accident. They brought
suit against the tortfeasors and their insurer and eventually agreed to
a settlement that released the tortfeasors from further liability. The
Raneses did not give notice of their settlement to American Family,
which had issued multiple policies to the Raneses carrying underinsured
motorist (UIM) coverage. The Raneses later filed suit against American
Family on the basis of recent authority that had voided reducing clauses
in similar UIM policies. American Family moved for summary judgment
because the Raneses had failed to notify it of the settlement. The
circuit court granted the motion to dismiss but the court of appeals
reversed.
The supreme court, in an opinion written by Chief Justice Abrahamson,
affirmed the court of appeals. The court held that "failure to give
notice should not void the obligations of the UIM insurance company
unless the breach is material, that is, the UIM insurance company was
prejudiced by the lack of notice." The court next considered the burden
of proof on the issue of prejudice. It concluded that an insured's
failure to notify the insurer of the settlement creates a rebuttable
presumption of prejudice. The rule places on the insured both the burden
of production (that is, the burden of coming forward with evidence) and
the burden of persuading the fact finder that the insurer was not
prejudiced by the lack of notice.
Torts
Shoplifters - Unlawful Detention - Negligent Supervision
Miller v. Wal-Mart Stores
Inc., No. 96-2529 (filed 24 June 1998)
Wal-Mart employees stopped, searched, and questioned the plaintiff
for alleged shoplifting. A jury found that Wal-Mart negligently hired,
trained, or supervised the employees and that Miller suffered damages.
It also found that Wal-Mart employees lacked reasonable suspicion for
stopping the plaintiff.
On certification from the court of appeals, the supreme court, in an
opinion written by Justice Bablitch, reversed and remanded for a
determination of whether the plaintiff satisfied all elements of the
tort. In particular, the court held that Wisconsin law embraces a claim
for negligent hiring, training, and supervising employees, including
"loss prevention employees" who could foreseeably harm people unless
they are properly trained and supervised. The special verdict form in
this case, however, did not completely ask whether the plaintiff
satisfied the cause-in-fact element; that is, was there a nexus between
the negligent hiring, training, or supervising and the plaintiff's
injury? Finally, although the retail theft statute, section 943.50(3),
provides some measure of protection for merchants, Wal-Mart did not meet
the statutory elements required for immunity from civil and criminal
liability because its employees lacked reasonable suspicion for the
stop.
Chief Justice Abrahamson and Justice Geske did not participate.
Justice Steinmetz, joined by Justice Wilcox, dissented.
Wrongful Death - Worker's Compensation Exclusivity Provision -
Loaned Employee
Borneman v. Corwyn Transport
Ltd., No. 96-2511 (filed 25 June 1998)
A transport company agreed to provide a truck and haul two loads for
Major Industries from Wisconsin to Georgia. A truck driver, employed by
the transport company, assisted four Major Industries employees in
loading the truck. During the loading process, one of Major Industries'
employees was crushed to death. The driver's role in the loading was
disputed. The circuit court granted summary judgment dismissing a claim
against the transport company based upon the finding that the driver was
a "loaned employee" of Major Industries, and hence fell within the
Worker's Compensation Act's exclusivity provision. The court of appeals
reversed, ruled that summary judgment precluded the loaned employee
defense, and remanded the matter for trial on the driver's
negligence.
The supreme court, in an opinion written by Chief Justice Abrahamson,
affirmed. It held that the court of appeals properly applied the test
set forth in Seaman Body Corp. v. Industrial Comm'n, 204 Wis.
157 (1931), and focused appropriately on the issue of whether the driver
"consented to the new employee-employer relationship." "[T]he existence
of an arrangement or understanding between a general employer and a
borrowing employer is relevant to the issue of an employee's consent to
enter into a new employment relationship with the borrowing
employee."
Contribution - Seat Belts
Gaertner v. Holcka, No.
96-2726 (filed 26 June 1998)
Gaertner picked up her friend's 11-year-old son, Justin, and drove
him to a doctor's appointment. On the way home her car was struck by
another driver who was totally at fault in the accident. Justin suffered
severe and permanent injuries. At the time of the collision Justin was
in the back seat and was not wearing the available passenger restraints.
Gaertner had no reason to believe that Justin was wearing the seat belt
at any time. The tortfeasor's insurer settled with Justin but brought an
action for contribution against Gaertner's insurer, American Family. The
circuit court dismissed the contribution claim and the court of appeals
certified the case to the supreme court.
The supreme court, in an opinion written by Justice Wilcox, affirmed.
The court held "the Legislature has expressed its intent that a claim
for contribution may not be sustained in cases involving negligence for
failure to restrain another with a seat belt, as controlled by Wis.
Stat. sec. 347.48(2m)(g)." The opinion traces the development of the
"seat belt defense" in the case law and the Legislature's response.
Specifically, the Legislature modified the case law in two ways: 1) It
limited to 15 percent the potential reduction in plaintiffs' recoverable
damages; and 2) It established a duty on behalf of the driver to
properly restrain minor passengers. The Legislature intended "to
preclude the use of the seat belt defense in a contribution action."
Justice Bradley concurred. Chief Justice Abrahamson filed a separate
dissent. Justice Geske, joined by Justice Steinmetz, also dissented.
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
