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Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Civil Procedure | Criminal Procedure |
| Insurance | Torts |

Third-party Claims - Therapist's Negligence -
Statute of Limitations

Sawyer v. Midelfort, No. 97-1969 (filed 29 June 1999)

The patient's estate and her parents brought this action against the patient's therapist, alleging negligent therapy and care. The circuit court concluded that the complaint failed to state a valid claim and, in the alternative, the claims were barred by the statute of limitations. The court of appeals reversed.

The supreme court, in an opinion written by Justice Steinmetz, affirmed. Two issues related to the validity of the claims. First, did the law permit the parents of an adult child to maintain a third-party professional negligence action that alleged the defendant implanted and reinforced "false memories" of sexual abuse as a child? Holding that the claim was valid, the court untangled the case law and the public policy arguments advanced by the defense. Second, did section 895.01 of the Wisconsin Statutes or public policy preclude a claim by the patient's estate alleging "pain, suffering and disability, medical, psychiatric and psychological expense, and loss of enjoyment of life," where the patient sustained no physical injury? The court read the estate's claim "as a valid survival action seeking compensatory damages stemming from professional negligence." In upholding this claim as well, the supreme court distinguished several cases involving "loss of enjoyment" and "alienation of affection."

Finally, the court held that the actions were not barred at the summary judgment stage by the laches statute of limitations. The record did not unequivocally demonstrate that the parents failed to exercise reasonable diligence in discovering the cause of their injury, as required by the discovery rule. Similar reasoning supported the court's rejection of the laches defense: "[T]he Estate's cause of action did not accrue until it discovered her injury when it gained access to her treatment records."

Justice Wilcox filed a concurring opinion and Justice Bradley dissented.

Medical Malpractice - EMTALA Violations -
Patients Compensation Fund

Burks v. St. Joseph's Hospital, No. 97-0466 (filed 8 July 1999)

The plaintiff arrived at the hospital's emergency room 22 weeks pregnant and in distress. She gave birth to a child who died several hours later, weighing only 7 ounces and measuring just 11 inches. She sued the hospital alleging that the child was breathing and had a heartbeat at birth but that the staff had refused to provide the baby with medical assistance. The hospital admitted that no attempt was made to resuscitate the "fetus" for medical reasons. The narrow issue before the supreme court was whether the Wisconsin Patients Compensation Fund (Fund) is required to provide excess coverage for violations of the federal Emergency Medical Treatment and Active Labor Act (EMTALA), particularly for damages "resulting from a hospital's refusal or failure to provide medical treatment to a severely premature infant." The circuit court ruled that the Fund provided no such coverage. The court of appeals reversed and the Fund appealed.

The supreme court, in an opinion written by Justice Prosser, affirmed the court of appeals. The opinion details the requirements found in the pertinent state and federal legislation governing the Fund and EMTALA. It held that "when a hospital's violation of EMTALA results from a negligent medical act or from a decision made in the course of rendering professional medical care, the Fund has an obligation to provide excess coverage. Conversely, when a hospital's violation of EMTALA results from an economic decision, the Fund has no duty to provide coverage." The record in this case disclosed a "medical" decision, and hence the Fund had coverage.

Chief Justice Abrahamson concurred, but wrote separately to state her disagreement with the purported distinction between "economic" and "medical" motivations in refusing or neglecting proper treatment. Justice Bradley dissented on the ground that "EMTALA is not a federal malpractice statute and is not designed to provide a federal remedy for general malpractice."

Motor Vehicles - Drive-by Shootings - Parental Liability

Reyes v. Greatway Ins. Co., No. 97-1587 (filed 1 July 1999)

Seventeen-year-old Aaron was driving a car when he and an accomplice fired several shotgun blasts at "rival gang members." The plaintiff was severely injured in the shooting. Aaron later pleaded guilty to serious felony charges in connection with this incident. The plaintiff sued Aaron, his mother, and several insurance companies. The mother had sponsored Aaron when he applied for his driver's license the year before. The issue before the court was whether Aaron's mother was liable for the personal injuries suffered by the gunshot victim under the parental sponsorship statute, section 343.15(2)(b) (1993-94) of the Wisconsin Statutes. The circuit court concluded that the mother was responsible, but the court of appeals reversed.

The supreme court, in an opinion written by Justice Prosser, affirmed. In an artfully succinct sentence, Justice Prosser summed up the court's 20-page analysis: "[B]ased on strict construction, statutory history, prior case law defining the legislative purpose of Wis. Stats. sec. 343.15(2), and the maxim that a court should avoid absurd results when interpreting a statute, we conclude that when a minor discharges a firearm toward a group of pedestrians while driving a motor vehicle on the highway, the minor's conduct does not fall within the terms of Wisconsin's sponsorship statute."

Negligence - Trespassers - Landlord's Liability

Johnson v. Blackburn, No. 97-1414 (filed 30 June 1999)

One child died and another was seriously injured in an apartment fire. The case raised two prime issues. First, were the children trespassers? Second, did the location of the smoke detectors violate a statutory requirement? The circuit court ruled that the plaintiffs established negligence per se because the landlord failed to provide a smoke detector in the basement, as required by statute. It dismissed the claim, however, because the children were trespassers and the landlord's conduct was not reckless. The court of appeals reversed.

The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed but on different grounds. As to the first issue, Wisconsin law has long held that landlords owe tenants and their guests the duty to exercise ordinary care but are not liable to trespassers except for injuries inflicted by the landlord's willful and intentional conduct. The tenants, who were clearly covered by a lease, consented to the use of the basement by the two injured children. The landlord disputed the tenants' authority to grant such consent. The court held that "whether the tenants had exclusive possession of the basement or joint possession of the basement with the occupant of the upper apartment, whether the basement was a common area, whether the landlord limited the use of the basement to certain purposes, and whether the basement was used for an unintended purpose at the time of the injury are all factual issues in dispute." Resolution of these issues was essential to determine the children's legal status as trespassers or guests.

The court next reviewed the statutory requirements governing smoke detectors. Wis. Stat. § 101.645. The record disclosed disputed issues of fact as well as the statute's application to these disputed factual questions. Summary judgment was thus inappropriate and the matter was remanded for trial.

Justice Wilcox, joined by justices Crooks and Bablitch, concurred.

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.