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Vol. 72, No. 10, October 1999

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Court of Appeals Digest

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

| Administrative Law | Civil Procedure | Commercial Law |
| Criminal Law | Criminal Procedure |
| Employment Law | Family Law | Lemon Law |
| Motor Vehicle Law | Sexually Violent Persons | Torts |
| Worker's Compensation |

"Comparable New Motor Vehicle" - Alternative Remedies

Dussault v. Chrysler Corp., No. 98-0744 (filed 7 July 1999) (ordered published 17 Aug. 1999)

This decision, written by Judge Snyder, involved two "novel" issues under Wisconsin's lemon law. First, the court of appeals held that the phrase "comparable motor vehicle" under section 218.015(2)(b) of the Wisconsin Statutes is ambiguous. Since the lemon law's purpose is to restore the consumer to the position she or he was in at the time of purchase, the court held that a manufacturer could replace a "nonconforming demonstrator vehicle" with a "late-model demonstrator with comparable features."

The second issue concerned the consumer's right to pursue an alternative remedy under section 218.015(2)(a) of the Wisconsin Statutes. The court held that a para. (2)(a) remedy is available only where the consumer is unable to establish a "reasonable attempt to repair" the vehicle. Since the plaintiff had established a "reasonable attempt to repair," she was left with her remedies under para. (2)(b). (The court also addressed several other issues that are case-specific and raise no "novel" issues of law.)

Visible Defects - Accepting Delivery

Dieter v. Chrysler Corp., No. 98-0958 (filed 21 July 1999) (ordered published 17 Aug. 1999)

The plaintiffs purchased a truck that was scratched when some accessories were installed. They complained about the scratches and at first refused delivery until the dealership promised to repair them. When the attempted repairs failed to satisfy them, the plaintiffs demanded that the truck be repurchased based on the scratched paint job and other problems. The trial court granted summary judgment to Chrysler.

The court of appeals, in an opinion written by Judge Brown, affirmed. At the outset, the court ruled that Chrysler was "dead wrong" when it argued that "Chrysler is not liable for the dealer's negligent installation of after-market accessories." There was, however, a more critical issue: "Is the Lemon Law applicable when the consumer is aware of vehicle paint defects before the actual delivery of the vehicle?" The court held that the lemon law is not applicable because it "covers defects the consumer became aware of subsequent to delivery." Here the consumers had the opportunity to refuse delivery and pursue a refund of their deposit. Although the statute nowhere mentions consumer awareness of defects, "the whole point of the Lemon Law is to protect consumers from hidden defects in their new vehicles." The court was unpersuaded that its holding would create a "public policy nightmare" in which manufacturers gutted the lemon law by providing notice of all defects, large and small. In this case, the consumers' remedy is with the dealer who promised to fix the scratches.

OWI Forfeiture Action - Mandatory Court Appearance -
Timeliness of Jury Demand

City of Fond du Lac v. Kaehne, No. 98-3619 (filed 7 July 1999) (ordered published 17 Aug. 1999)

Wis. Stat. section 66.12(1)(b) provides that "a court appearance is required for a violation of a local ordinance in conformity with the [state OWI statute]." In this case the defendant claimed that because he pled not guilty to the city OWI charge by mail, and because this procedure is contrary to the statute quoted above, his not guilty plea was improperly entered and the 10-day period in which to request a jury trial had therefore not yet begun to run.

In a decision authored by Judge Brown, the court of appeals held that, while it is true that a court appearance is necessary under the statute, a court appearance in a civil action may be made by letter. Since this is a civil case, the defendant's not guilty plea by letter to the court constituted an appearance and his 10 days for demanding a jury trial commenced running when the court received the letter. Accordingly, his letter requesting a jury trial filed after that 10-day period was untimely.

Hit-and-Run - Premises Held Open to the Public -
Circuit Court Administration Fee

State v. Carter, No. 98-1688-CR (filed 30 June 1999) (ordered published 21 July 1999)

The defendant was convicted of hit-and-run involving death, contrary to Wis. Stat. section 346.67(1). This statute applies "upon all premises held out to the public for use of their motor vehicles." See Wis. Stat. § 346.66. The accident in this case occurred on the lot of a closed gas station, and the question before the court was whether these were premises held out for public use such that the hit-and-run statute could be enforced there.

The court of appeals concluded that there was sufficient evidence that the property in question was held out for public use. The gas station is bordered by two city streets and abuts an alley in the rear. As such, it is easily accessed by the public. Although there were "no parking" signs on the premises, there were not any signs prohibiting trespassing or passing through the lot. Nor had the owner taken steps, such as fencing, to keep the public off the property. Nor was there evidence that the owner had ever towed any vehicle from the property. In addition, the owner had posted a "for sale" sign on the premises, making it reasonable to infer that the public was welcomed or invited to enter the premises and inspect the property. The court concluded that there was sufficient evidence indicating that any resident of the community with a driver's license and access to a motor vehicle could use the parking lot.

Another issue on appeal was whether the circuit court properly imposed a court administration fee under section 814.60(1). This statute provides that, in a criminal action, the clerk of circuit court shall collect a fee of $20 for all necessary filing, entering, or recording, to be paid by the defendant when judgment is entered against him or her. The issue was whether the statute allows for the imposition of a $20 fee on a per count basis or whether, as the defendant argued, the clerk may impose only a single $20 fee even if the case involves multiple counts. The court of appeals concluded that the purpose of the statute is to compensate the clerk of court for the administrative costs associated with processing a criminal action. Because each charged count requires filing, entering, and recording - separate and distinct from other counts charged - the proper interpretation of section 814.60(1) permits a separate $20 fee for each count in the case.

Chapter 980 Commitment Proceedings -
Competency of Respondent to Proceed

State v. Smith, No. 99-0477 (filed 30 July 1999) (ordered published 17 Aug. 1999)

The issue before the court of appeals in this case was whether a person who is incompetent to proceed may be tried in a Wis. Stat. chapter 980 proceeding. Chapter 980 is Wisconsin's sex predator statute. The state argued that, although trying an incompetent for a crime violates the Fourteenth Amendment's due process clause, chapter 980 is a civil proceeding in the nature of a civil commitment and the right not to be tried if incompetent has never been extended to prohibit involuntary commitments. The state also alleged that the Legislature never intended to extend the right to be competent at trial to a chapter 980 respondent.

In a decision authored by Judge Hoover, the court of appeals concluded that a chapter 980 respondent must be competent in order to be tried. Section 980.05(1m) provides that all constitutional rights available to a defendant in a criminal proceeding are available to the chapter 980 respondent. By this provision, concluded the court, the Legislature has extended the competency right to chapter 980 respondents.

The court further concluded that there must be a process to afford the competency right to chapter 980 respondents. Wis. Stat. section 971.14 sets forth in detail the procedures for circuit courts to follow when there is reason to doubt a criminal defendant's competency to proceed at trial, conviction, or sentencing. The court of appeals held that a circuit court shall adapt section 971.14 to the extent practicable when competency issues arise in chapter 980 proceedings.

Medical Malpractice - Legal Guardians - Loss of Society and Companionship

Conant v. Physicians Plus Medical Group Inc., No. 98-3285 (filed 1 July 1999) (ordered published 17 Aug. 1999)

Timothy, a minor, suffered severe brain damage from dehydration caused by repeated vomiting. The complaint alleged that the vomiting was due to negligent medical care and treatment. Timothy's legal guardians, his grandparents, sued the alleged tortfeasors for their loss of society and companionship as well as for certain costs incurred and lost income. The circuit court dismissed the grandparents' claims.

The court of appeals, in an opinion written by Judge Deininger, affirmed. "Neither Wisconsin courts nor the Legislature ... has permitted recovery for loss of society and companionship by those outside the nuclear family." Nor did the grandparents' status as legal guardians change this result. The court explored the differences between the legal guardians' duty to the ward and the parents' duty toward their child. Simply put, they are not equivalent. (The opinion sets forth the distinctions.)

As to the claims for lost income and other costs, the court observed that the issue was not whether the legal guardians could recover such damages, but whether they could sue in their own names. No authority supported such an independent claim. Thus, the grandparents/legal guardians could "not maintain an action in their own names to recover their expenses in providing care and transportation for Timothy following his injuries." Timothy could, however, recover those expenses from the defendants, including the value of medical and nursing services, and the recovery "may not be reduced by the fact that the services were gratuitously paid for or provided by a collateral source."

Recreational Immunity - No "Good Samaritan" Exception

Schultz v. Grinnel Mutual Reinsurance Corp., No. 98-3466 (filed 22 July 1999) (ordered published 17 Aug. 1999)

While attending the county fair, Michael Schultz stopped to get a drink of water when he saw a "1,100-pound steer running through the fairgrounds." Schultz was injured while attempting to capture the animal. He later sued the operator of the fair, and others, for negligence. The trial court granted summary judgment dismissing the fair's operator under the recreational immunity statute, section 895.52 of the Wisconsin Statutes.

The court of appeals, in an opinion written by Judge Dykman, affirmed. Schultz was clearly engaged in recreational activity (attendance at a fair) when he was hurt. The case is most noteworthy, however, for the court's rejection of a "good samaritan" exception that would permit "rescuers" to recover for their injuries. Schultz's arguments exceeded the court's error-correcting function and necessitated a statutory amendment.

Exculpatory Contracts - Negligence - Recklessness -
Loss of Consortium

Werdehoff v. General Star Indemnity Co., No. 98-1932 (filed 21 July 1999) (ordered published 17 Aug. 1999)

The plaintiffs were injured while racing motorcycles at the Road America racetrack. Along with their wives, the injured racers alleged that the defendants were negligent and had violated the safe place statute, section 101.11 of the Wisconsin Statutes. The complaint also alleged reckless behavior and intentional disregard of the plaintiffs' rights. The trial court dismissed the complaint based on exculpatory contracts signed before the race.

The court of appeals, in an opinion written by Judge Nettesheim, reversed in an opinion that reached three issues. First, the exculpatory contracts validly released the defendants from liability for ordinary negligence, including the safe place claim. The court carefully compared the language in the Road America release to similar language addressed in recent case law governing exculpatory contracts. The contract was clear as to its "terms" and "application." One could reasonably assume that negligent maintenance of the track fell within its sweep. Second, under prior case law the exculpatory contract could not release the defendants from liability sounding in recklessness. "[O]ne fair reading of the evidence is that the defendants allowed the race to go on with knowledge that the dangerous condition [on the track] still existed." Since the plaintiffs raised disputed issues of fact about whether the defendants behaved recklessly, the case was remanded for trial. Finally, prior case law clearly established that the spouses' claims for loss of consortium could not be defeated by the exculpatory contracts.

Occupational Disease - Date of Injury - Medical Expenses
Incurred Before Date of Injury

United Wisconsin Ins. Co. v. Labor and Industry Review Commission, No. 97-3776 (filed 20 July 1999) (ordered published 17 Aug. 1999)

The employee filed a hearing application with the Labor and Industry Review Commission (LIRC) alleging that she sustained an occupational disease, carpal tunnel syndrome, arising out of her employment. She claimed compensation for lost wages and payment for medical expenses. She alleged that her date of injury was March 25, 1994, the date she first experienced carpal tunnel syndrome symptoms.

Following a hearing, the administrative law judge (ALJ) concluded that the employee sustained occupational carpal tunnel syndrome and that her date of injury was Aug. 2, 1994, the first day she lost time from work due to her medical condition. The ALJ also found that the compensation carrier was liable for compensation and medical expenses, including those expenses incurred prior to Aug. 2, 1994. The ALJ's decision was affirmed by the LIRC and by the circuit court.

In a decision authored by Judge Wedemeyer, the court of appeals affirmed. In resolving this case the court considered both Wis. Stat. section 102.01(2)(g), which sets the date of injury in occupational disease cases, and section 102.42(1), which provides that medical expenses incurred before an employee knows that he or she is experiencing a work-related injury are compensable. Reading the statutes together, the court concluded that the only reasonable interpretation is that medical expenses in occupational disease cases are not compensable until the date of injury. But, once a date of injury is established, any medical expenses associated with the work-related injury, even if incurred before the technical date of injury, are compensable.

Judge Schudson filed a concurring opinion.

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.