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

| Attorney Fees | Attorneys | Civil Procedure | Criminal Law |
| Criminal Procedure | Disability Law | Evidence | Family Law |
| Insurance | Motor Vehicle Law | Nuisance | Real Property |
| Sexual Predator Law | State Government | Torts |
| Worker's Compensation | Zoning |

Pollution Exclusion - "Nontoxic" Qualities

Guenther v. City of Onalaska, No. 98-0724 (filed 19 Nov. 1998) (ordered published 16 Dec. 1998)

The Guenthers suffered damage when their sewer backed up into their basement. The circuit court dismissed their claim against the city's insurer based on a pollution exclusion.

The court of appeals, in a decision authored by Judge Roggensack, reversed. The court found that the pollution exclusion was ambiguous. Ambiguity in the policy arose from the distinction between the "toxic" and "nontoxic" qualities of potential discharges (or flooding). The insured (the city) could have "reasonably understood that the exclusion for 'contamination by pollutants' did not apply to an occurrence as routine as a domestic sewer backup, which caused at least some damages, which were unrelated to any toxic nature of the sewage."

OWI - Preliminary Breath Tests - Requirement of Probable Cause - Constitutionality of Loud Muffler Statute

County of Jefferson v. Renz, No. 97-3512 (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)

The critical issue in this case was the amount of evidence that a law enforcement officer must have in order to request a motorist to provide a breath sample for a preliminary breath test (PBT). Wis. Stat. section 343.303 provides that if a law enforcement officer has "probable cause" to believe that the person is violating or has violated the OWI law or certain similar offenses, the officer may, prior to an arrest, request the person provide a sample of his or her breath for a PBT. [Note: A different and less demanding threshold is used in the statute with reference to testing commercial vehicle operators.]

The county argued that the probable cause required to request a PBT is a lesser standard than the probable cause required for an OWI arrest. Otherwise, said the county, the PBT would not be necessary. The circuit court agreed with this position.

In a decision authorized by Judge Vergeront, the court of appeals reversed. While granting that the county's interpretation of the statute was reasonable, the court concluded that a more reasonable interpretation, when considering the purpose, context, and history of the statute, is that the probable cause required for a PBT is the same standard as probable cause to arrest for OWI. The court acknowledged that requiring probable cause to arrest before requesting a PBT limits the conditions under which the PBT may be requested and undercuts the use of a PBT to establish probable cause to arrest. However, it does not deprive the PBT of all meaning or function. Even if an officer has probable cause to arrest, he or she may decide to request a PBT first, and then use the results in deciding whether to actually make an arrest.

Another issue addressed by the court is the constitutionality of the loud muffler statute, a violation of which was the basis for the officer's initial contact with the defendant in this case. Wis. Stat. section 347.39 provides that no person shall operate on a highway any motor vehicle subject to registration unless such vehicle is equipped with an adequate muffler in constant operation and properly maintained to prevent any excessive or unusual noise or annoying smoke. The defendant contended that the statute violates due process because it is vague. Rejecting this claim, the court concluded that the challenged term "excessive noise" means "unreasonable noise" and the concept of reasonableness is sufficiently definite to satisfy the vagueness test. The statute makes clear that excessive or unusual noise is to be judged against the noise emitted by a muffler that meets statutory requirements when originally installed on the vehicle.

Permanent and Continuing Nuisances - Statute of Limitations

Sunnyside Feed Co. Inc. v. City of Portage, No. 98-0709 (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)

Sunnyside Feed Mill is a historic building located in the city of Portage. In 1986 and 1987, the city conducted a restoration project along the canal where the building is located. As a result of the manner in which the restoration project was conducted, Sunnyside notified the city of the possibility of a claim regarding the ongoing damage to the mill's structure and foundation and, after filing a notice of claim, sued the city in 1996 claiming that the city was negligent in the manner in which it conducted the restoration project and that its actions or inactions constituted an ongoing nuisance.

The city and its insurer filed a motion for summary judgment, asserting that the claims were time-barred by the statute of limitations. The court granted the motion on the negligence claim but denied it as to the nuisance claim. At trial the jury found the city created a nuisance and awarded Sunnyside damages.

Among the critical issues on appeal was one relating to the statute of limitations on the nuisance claim. If a nuisance is permanent, a suit must be commenced within the applicable statute of limitations. However, if a nuisance is continuing, the nuisance claim is not barred by a statute of limitations because there is no statute that bars an action for a continuing injury to property. See Speth v. City of Madison, 248 Wis. 492, 22 N.W.2d 501 (1946). A nuisance generally is considered to be continuing if it can be discontinued or abated, or if it is an ongoing or repeated disturbance, such as a disturbance caused by noise, vibration, or foul odor. In this case the court concluded that the testimony presented showed that the harm caused by the city to the plaintiff is ongoing and could be abated. Thus, the nuisance claim was not time barred.

As a matter of procedure the court concluded that where, as in this case, the underlying facts surrounding the creation of the asserted nuisance are undisputed, and application of a statute of limitations is the issue, whether the nuisance is permanent or continuing becomes a question of law to be decided by the trial court and reviewed de novo by the court of appeals. In footnote, the court observed that where damages are disputed, and the evidence is conflicting as to whether the nuisance is permanent or continuing, the question should be submitted to the jury.

Slander of Title - Lis Pendens - Condominium Units

Interlaken Service Corp. v. Interlaken Condominium Assoc. Inc., No. 97-1107 (filed 7 Oct. 1998) (ordered published 18 Nov. 1998)

A service corporation brought a breach of contract action against a condominium association, alleging a failure to pay for services provided to the association. Later, the service corporation filed an amended complaint requesting a proportional lien against each condominium unit under section 703.25(3) of the Wisconsin Statutes. It also filed a lis pendens pursuant to the same statute. The association counterclaimed that the lis pendens constituted a slander of title under Wis. Stat. section 706.13. The trial court dismissed the counterclaim because the service corporation was both "privileged and required" to file the lis pendens.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. In a "conventional civil suit," a judgment results in a lien on all real property of every person against whom the judgment is entered in the county where the judgment is rendered. See Wis. Stat. § 806.15(1). A "very different situation" is contemplated by section 703.25(3) because of the "unique[ness]" of condominiums. Although the condominium association is the defendant under the statute, not the individual condominium owners, "the lien granted by the statute operates against the property of the condominium owners even though those persons were not defendants in the action." Thus, "the lien follows the real estate, not the owner." For these reasons, a lis pendens is "critical to protect a prospective condominium purchaser."

Adverse Possession - Common Grantor - Predecessors-in-Title

Keller v. Morfeld, No. 97-3443 (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)

In this action to quiet title between neighbors, the Kellers maintained that they acquired title to the disputed property by the adverse possession of the prior owner as against their neighbors' predecessors-in-interest. When Thorson, the prior owner, purchased the property in the early 1950s there was only a tavern on it. Later he subdivided the property into two separate parcels and built a house on the northerly part. Thorson sold the tavern parcel in 1977 and continued to live in the house. He treated the disputed land as part of the property belonging to the residential lot and used it for parking and storing equipment used in his business. Thorson sold the house to the Kellers in 1987 and they continued to treat the disputed land as part of their residential lot (for example, planting trees). The Morfelds acquired the tavern property in 1987. The tavern parcel had gone through a number of the Morfelds' "predecessors" since Thorson sold it in 1977. The trial judge ruled that the disputed property belonged to the Kellers.

The court of appeals, in an opinion written by Judge Eich, affirmed. This was an "atypical" adverse possession because the grantor, Thorson, "whose adverse possession the Kellers seek to 'tack on' to their own, was also the grantor to the Morfelds' predecessors-in-title." This meant that the Kellers had to establish that Thorson's possession was adverse to the Morfelds' predecessors. Addressing several nineteenth century cases that identified a "presumption" that a grantor cannot possess adversely against his or her grantee, the court of appeals rejected the reasoning as "tautological." The cases did not identify a true presumption; rather, they apply "accepted principles of adverse possession to the situation where the opposing parties have taken their land from a common grantor, in the same manner as in any other case." Placing "structural encroachments" on the land is not a requirement of adverse possession. The record adequately supported the trial judge's finding that Thorson used the property adversely to the interests of those who owned the tavern
parcel.

Commitments - Antisocial Personality Disorder - "Mental Disorder"

State v. Adams, No. 96-3136 (filed 10 Nov. 1998) (ordered published 16 Dec. 1998)

Adams appealed his commitment as a sexually violent person under chapter 980 of the Wisconsin Statutes. This case presented several issues of first impression. The court of appeals, in an opinion written by Judge Schudson, affirmed the commitment.

First, the court concluded "that, under ch. 980, a person who has the mental disorder of 'antisocial personality disorder,' uncoupled with any other mental disorder, may be found to be a 'sexually violent person.'" Second, the court upheld the constitutionality of commitments predicated on a diagnosis of antisocial personality disorder. Adams argued that antisocial personality disorder "is too imprecise a category to pass due process muster." Even assuming that antisocial personality disorder is a fairly "common" diagnosis, chapter 980 would never permit commitment based only upon the diagnosis. Rather, the state must demonstrate that the individual satisfied the other criteria of section 980.01(7) in order to qualify a "sexually violent person." Third, the court held that there was sufficient evidence supporting the jury's verdict.

Finally, the state did not violate Adams' rights by impermissibly commenting on his right to remain silent. Case law precludes prosecutors or psychologists from commenting on a defendant's refusal to speak with a psychologist. In this instance, however, Adams attacked the ethics of a psychologist for rendering an opinion without having examined the defendant. Nor was there proof that the prosecutor had used Adams' silence as proof of guilt during closing arguments (which were not transcribed). The court addressed several other issues which did not amount to reversible error of any sort.

Wisconsin Attorney General - Power to Challenge Constitutionality of State Statute

State v. City of Oak Creek, No. 97-2188 (filed 24 Nov. 1998) (ordered published 16 Dec. 1998)

The Wisconsin attorney general was involved in environmental litigation in which he sought to have the City of Oak Creek's channelization of Crawfish Creek declared a nuisance. As part of that litigation the attorney general challenged the constitutionality of Wis. Stat. section 30.056, which exempts the city from certain permit requirements with respect to its channelization of the creek.

A critical issue on appeal was whether the Wisconsin attorney general may challenge the constitutionality of a state statute. In a majority decision authored by Judge Fine, the court concluded that he may not. The Wisconsin constitution sets the scope of the attorney general's authority: "the powers, duties and compensation of the treasurer and attorney general shall be prescribed by law." See Wis. Const. Art. VI § 3. This clause means that the attorney general in Wisconsin has no powers other than those specified by the legislature. The court was unable to identify any statute authorizing the attorney general to challenge the constitutionality of state statutes. Other than the narrow exception that permits challenges to legislative apportionments, it is the attorney general's duty to defend the constitutionality of state statutes. See Public Intervenor v. Department of Natural Resources, 115 Wis. 2d 28, 339 N.W.2d 324 (1983).

In footnote the majority noted that there have been many cases where the attorney general has challenged the constitutionality of legislation. However, the state admitted at oral argument that in none of the prior cases was the power of the attorney general to do so either disputed (as it was in this case) or decided.

Judge Schudson filed a dissenting opinion.

Emotional Distress - "Indirect" Exposure to the Event

Rosin v. Fort Howard Corp., No. 98-0861 (filed 13 Oct. 1998) (ordered published 18 Nov. 1998)

Bradley was 9 years old when his father was killed in an explosion at a power plant. His mother told him the tragic news the next morning. That afternoon in the newspaper, Bradley saw a photograph of his father's body being taken from the accident scene. A psychologist linked Bradley's ongoing emotional and psychological problems to the traumatic photo. By his guardian ad litem, Bradley brought an action against the defendants (in particular, the power plant's owner). The circuit court dismissed the claim for negligent infliction of emotional distress because of an insufficient link between the defendants' conduct and the boy's emotional
distress.

The court of appeals, in a decision written by Judge Cane, affirmed based on the public policy analysis set forth in recent case law. Bradley did not personally observe his father's death or personally see his father's body at the accident scene. Moreover, Bradley learned about his father's death through "indirect" means; that is, his mother's statements and the newspaper photo.

Sales of Goods - Economic Loss Doctrine - Negligence

Biese v. Parker Coatings Inc., No. 98-1466 (filed 3 Nov. 1998) (ordered published 16 Dec. 1998)

The owner of a sports bar contracted with a flooring company to install a special floor. Parker Coatings Inc. provided the flooring materials. When problems developed with the floor that could not be fixed, Parker and the flooring company installed a new floor. When the problems persisted, Biese filed a negligence action against Parker alleging that it had provided defective flooring materials, improper instructions on installation, and other claims. Biese sought damages for repair and replacement of the defective floor, lost profits, and damage to the business's reputation. The circuit court granted summary judgment in Parker's favor. Absent a claim of personal injury or physical harm, Biese's remedy was a breach of warranty claim, not a tort claim.

The court of appeals, in an opinion written by Judge Cane, affirmed. Under the case law, "economic loss is damage to a product itself or monetary loss caused by a defective product that does not cause personal injury or damage to other property." The court held, "[I]n cases involving mixed transactions for goods and services between a remote commercial purchaser and a manufacturer, even in the absence of privity, we will apply the predominant purpose test to the entire underlying transaction to determine if the economic loss doctrine bars a remote commercial purchaser's negligence claim against a manufacturer for solely economic losses." For most commercial products, service is incidental to sales. For this reason, "allowing a purchaser to recover solely economic loss for the negligent provision of services when the predominant purpose is a sale of goods would render the economic loss doctrine virtually meaningless and would allow a remote commercial purchaser who incidentally receives services from a manufacturer to circumvent the economic loss doctrine."

In this case, Biese plainly wanted to obtain the product that a third party applied to the floor. Biese's damages resulted from a failed commercial product caused by a defective chemical component, "not because Parker negligently provided services." Parker's services were clearly incidental to Biese's purchase of the product.

Disability Payments - Advanced Payments - Interest Computation

Hamm v. LIRC, No. 98-0051 (filed 18 Nov. 1998) (ordered published 16 Dec. 1998)

Joyce was injured while working in 1991. She was awarded monthly partial permanent disability benefits of about $600 until the sum of $60,000 had been paid. In 1994 Joyce requested "an advance lump sum payment" under section 102.32(6) of the Wisconsin Statutes, which authorizes such distributions. A dispute arose over the computation of interest as determined by the hearing examiner. LIRC affirmed the examiner, as did the circuit court, who determined that the employer was entitled to an interest credit on Joyce's advanced disability benefits on a 7 percent per annum basis. Joyce contended that it should be applied at a flat rate.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. The court held that section 102.32(6) was ambiguous as to "whether the 7 percent credit granted to insurers who advance a lump sum payment of benefits is to be computed at a flat or per annum rate." LIRC's interpretation was reasonable because section 102.32(6) "provides that permanent disability benefits 'shall be made to the employee on a monthly basis' unless advance payments are approved by the Department. When such payments are approved, the interest credit provision compensates the employer or the employer's insurer for lost interest on the payment paid in a lump sum - money which would have otherwise been paid out over time."

Setback Ordinances - Variances - "Unnecessary Hardship"

State ex rel. Spinner v. Kenosha County Board of Adjustment, No. 97-2094 (filed 11 Nov. 1998) (ordered published 16 Dec. 1998)

The respondent owns property fronting on a lake in Kenosha County. His property is unusual because a meandering creek from the lake bisects the middle of his land. County zoning ordinances require buildings to be set back 75 feet from any navigable water. Due to the peculiarity of the property in question, the respondent must accommodate both navigable waters - the creek as well as the lake - with the 75 foot setback requirement.

The respondent desired to build a residence on the property and sought a zoning variance to do so. The Kenosha County Board of Adjustment granted the variance because it found that with the irregular shape of the respondent's property, an "unnecessary hardship" would result from enforcing the setback requirement. Neighboring landowners petitioned for certiorari review of the variance grant but the circuit court affirmed the board's decision.

The court of appeals, in a decision authored by Judge Anderson, reversed the circuit court. It agreed with the neighbors that the board applied an incorrect theory of law for determining whether an "unnecessary hardship" was present for the zoning variance request and that the evidence was insufficient to support the board's conclusion.

The court of appeals resolved the appeal by examining the "unnecessary hardship" standard developed by the Wisconsin Supreme Court in another case involving Kenosha County. See State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998). In that decision the supreme court stressed that the board's proper focus when considering a variance request should be the purpose of the zoning regulation. "When the record before the board demonstrates that the property owner would have a reasonable use of his or her property without the variance, the purpose of the statute takes precedence and the variance request should be denied." Accordingly, the supreme court concluded that "only when the applicant has demonstrated that he or she will have no reasonable use of the property, in the absence of a variance, is an unnecessary hardship present."

In this case the court of appeals found that there was no evidence presented that a different design of the proposed house could not incorporate the setback requirement. Without such evidence, the applicant still may enjoy a reasonable use of the property without a variance. The burden is on the applicant to demonstrate through the evidence that without the variance he or she is prevented from enjoying any reasonable use of his or her property. The applicant must present evidence demonstrating that no other home design could incorporate the setback requirement on the property. In this case he failed to do so and therefore a reasonable use for his property without a variance remains a possibility.

Judge Nettesheim 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.