Vol. 73, No. 10, October 2000

Supreme Court Digest

Recent Decisions

This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine).

Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

Civil Rights

Prison Litigation Reform Act- Probation Revocation Reviews - Filing Deadlines

State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86 (filed 7 July 2000)

The issue in this case was whether the Wisconsin Prisoner Litigation Reform Act (PLRA) applies to persons seeking certiorari review of probation revocation. The supreme court, in an opinion written by Justice Prosser, held "that a petitioner who pursues relief from a probation revocation by a writ of certiorari is a prisoner subject to PLRA. Writs of certiorari that seek to overturn a revocation of probation are civil actions and are not analogous to criminal appeals that challenge a judgment of conviction or sentence." Thus, the petitioner's writ of certiorari "should have been filed within the 45-day deadline established by Wis. Stat. § 893.735(2)" (¶ 3).

Justice Bradley, joined by Chief Justice Abrahamson, dissented.

Criminal Procedure

Searches - Passengers - Duffel Bag

State v. Pallone, 2000 WI 77 (filed 30 June 2000)

Police arrested a driver for having an open intoxicant in his motor vehicle. They later searched a duffel bag in the truck that belonged to the defendant, a passenger, and found incriminating evidence. The circuit court upheld the search's lawfulness and the court of appeals affirmed.

The supreme court, in an opinion written by Justice Prosser, affirmed. First, the police had authority to open the duffel bag as part of a search incident to the driver's lawful arrest. The opinion addresses the case law on the necessity of an arrest, searches involving municipal offenses, and arrests tied to automobiles. On the facts of this case, the court refused to exclude passenger property from the scope of a search incident to arrest involving a motor vehicle (¶ 55). Second, the police also had probable cause to search the truck's passenger compartment and any containers capable of concealing evidence of the offense (that is, "beer").

Chief Justice Abrahamson dissented, joined by Justices Bablitch and Bradley.

Confessions - Right to Counsel

State v. Dagnall, 2000 WI 82 (filed 6 July 2000)

Following a denial of his motion to suppress statements made to police, the defendant pled no contest to homicide charges. The court of appeals reversed the judgment because the police had violated the defendant's Sixth Amendment right to counsel. His attorney had sent a letter to the sheriff's department acknowledging that the defendant had been arrested in Florida and directing that no one should question him about the murder. In addition, the defendant himself told detectives, "My lawyer told me that I shouldn't talk to you guys."

The supreme court, in an opinion written by Justice Prosser, affirmed. The court held that a defendant is not required to specifically invoke the right to counsel after he has been formally charged with a crime and has retained counsel to represent him. Put differently, the law does not "require an accused defendant who has an attorney for the crime charged to show the same diligence as a defendant without an attorney" (¶ 49, emphasis original). "To require an accused person to assert the right to counsel after the accused has counsel would invite the government to embark on a persistent campaign of overtures and blandishments to induce the accused into giving up his rights" (¶ 59).

Justice Crooks, joined by Justice Wilcox, dissented.

Education Law

School Finance - Constitutionality

Vincent v. Voight, 2000 WI 93 (filed 11 July 2000)

The supreme court reviewed two issues. First, "whether the state school finance system is unconstitutional under Wis. Const. article X, § 3 - the uniformity clause of the education article; and [second] whether the state school finance system is unconstitutional under Wis. Const. article I, § 1 - the Equal Protection Clause" (¶ 1). Needless to say, the court's lengthy opinion addresses issues of enormous statewide concern that are difficult to distill in a brief digest. The court held that the school finance system set forth in Wis. Stat. chapter 121 is lawful under both article X, § 3 and article I, § 1 of the Wisconsin Constitution. The petitioners failed to meet their burden of proof under either provision.

Writing for the court, Justice Crooks indicated that Chief Justice Abrahamson, Justice Bablitch, and Justice Bradley joined in the standard set forth in ¶ 3, ¶ 51, and ¶ 87 of the opinion, which concerns the "fundamental right to an equal opportunity for a sound basic education," namely, "one that will equip students for their roles as citizens and enable them to succeed economically and personally" (¶ 87). Justice Wilcox, Justice Prosser, and Justice Sykes joined in the court's decision as to the constitutionality of the present finance system.

Justice Wilcox concurred. Justice Abrahamson concurred in part and dissented in part. Justices Bablitch, Prosser, and Sykes did the same in separate opinions.

Employment Law

Wrongful Discharge - Public Policy Exception

Strozinsky v. School District of Brown Deer, 2000 WI 97 (filed 12 July 2000)

Strozinsky sued her former employer, a school district, alleging wrongful discharge. She resigned as a payroll clerk after she and her supervisor clashed over tax withholdings from his bonus check. The trial court granted summary judgment to the employer because the plaintiff failed to satisfy the public policy exception to the employment-at-will doctrine. The judge urged her, however, to pursue a constructive discharge claim. The court of appeals reversed. It found that a jury should decide whether workplace conditions were so intolerable that a person would be forced to resign. It also found that the plaintiff had raised questions of fact about whether her attempts to comply with tax laws created intolerable conditions that triggered a discharge in violation of public policy.

The supreme court, in an opinion written by Justice Prosser, affirmed the court of appeals. The court held "that the wrongful discharge claim is actionable under the narrow public policy exception to the employment-at-will doctrine because [the plaintiff] identified a fundamental and well defined public policy in the provisions of [various state and federal statutes]" (¶ 6). The court cautioned that it had "not departed from a narrow interpretation of the public policy exception" and was not opening a "Pandora's Box for employment litigation" (¶ 64). It also held that "the doctrine of constructive discharge can be applied as a defense in a common-law claim under the public policy exception because some resignations are, in fact, involuntary" (¶ 6). The record created an issue of fact regarding the "intolerable" working conditions.

Insurance

Reducing Clauses - Substantive Due Process

Dowhower v. West Bend Mutual Ins. Co., 2000 WI 73 (filed 30 June 2000)

The plaintiffs bought automobile insurance, including $50,000 of underinsured motorist (UIM) coverage from West Bend Mutual. The policy also contained a reducing clause. After plaintiff was injured, the negligent motorist's insurer paid its $25,000 policy limits. West Bend paid its insured an additional $25,000 under the policy, asserting that the policy's reducing clause and Wis. Stat. section 632.32(5)(i) permitted it to offset the $25,000 paid by the other motorist. The circuit court ruled that Wis. Stat. section 632.32(5)(i)1 violated the plaintiffs' substantive due process rights and that West Bend was obligated to pay the full $50,000 in UIM coverage.

On certification from the court of appeals, the supreme court reversed in an opinion written by Justice Bablitch. The plaintiffs argued that the statute "authorizes fraudulent insurance coverage because it permits the insurer to set forth within the policy that its UIM limit of liability is $50,000, even though the maximum amount of coverage that the insurance company will expend on a single claim will be less than $50,000" (¶ 16). Furthermore, they argued, the omission of an explanation that the UIM liability limit is reached by combining all sources of payment renders the face amount "illusory."

The court was unpersuaded. Under the case law and the statute's language, "an insurer may reduce payments made pursuant to a UIM policy by amounts received from other legally responsible persons or organizations, provided that the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources" (¶ 33). The case was remanded to determine whether the policy was ambiguous and, if so, whether a reasonable insured would have understood the policy to mean that the $50,000 UIM limit was to be a maximum recovery from all sources.

Justice Bradley, joined by Chief Justice Abrahamson, concurred on the ground that the policy was ambiguous.

Real Property

Temporary Takings - Just Compensation - Attorney Fees

Stelpflug v. Waukesha Town Board, 2000 WI 81 (filed 6 July 2000)

The petitioners owned adjoining parcels of land in a subdivision. The Stelpflugs also owned property there. The Stelpflugs believed their lot to be landlocked and brought an action in the circuit court seeking the appointment of commissioners pursuant to Wis. Stat. section 80.17. The commissioners determined that the Stelpflug property was indeed landlocked and ordered the town to construct a public highway over a portion of the petitioners' properties. The commissioners also ordered a fixed amount of compensation for the condemned land.

The petitioners appealed to the circuit court, requesting that a jury be empanelled to assess their damages. However, prior to the commencement of trial, the Stelpflugs found an alternative means to gain access to their lot. As a result, they agreed to withdraw their petition to lay out a road over the petitioners' property.

The petitioners thereafter brought an action against the town for damages resulting from the temporary taking of their properties. The circuit court concluded that the town was liable for damages during the temporary condemnation. The court of appeals reversed the circuit court.

In a unanimous decision authored by Justice Bablitch, the supreme court reversed the court of appeals. It concluded that a temporary taking did occur for which the petitioners are owed just compensation under article I, section 13 of the Wisconsin Constitution. The petitioners lost ownership interest in the affected land due to the condemnation of their property for a public highway. A condemnation was actually accomplished and, though temporary, was a sufficient deprivation of the incidents of ownership to constitute a taking. That compensible temporary taking began at the time the initial condemnation order was issued.

The court also concluded that an award of attorney fees in this case is not available. Wisconsin follows the American Rule on the award of attorney fees: Fees are normally allowed only when authorized by statute, contract, or pursuant to certain limited circumstances such as where application of the common fund doctrine is warranted. In this case there was no statute or contract warranting an award of attorney fees.

Sexual Predator Law

Commitment - Involuntary Medication - Competency

State v. Anthony D.B., 2000 WI 94 (filed 12 July 2000)

The petitioner was committed as a sexually violent person under Wis. Stat. chapter 980. The issue on appeal was whether such persons could be involuntarily medicated by court order. The supreme court, in an opinion written by Justice Bablitch, held that "individuals committed under ch. 980 are defined as 'patients' in Wis. Stat. § 51.61(1)" who are subject to Wis. Stat. section 51.61(1)(g), which authorizes a court to order medication regardless of the patient's consent (¶ 1). To protect patients against abuses, an order for involuntary medication must be reviewed as part of the annual review under section 980.07. The court addressed three additional points. First, the review must comply with the procedures set forth in Wis. Stat. section 51.20(5). Second, patients have the right to petition the court for review in accordance with section 51.61(1)(d). Third, the order for involuntary medication expires unless it receives the appropriate periodic review.

Sexually Violent Persons

Sexual Predator Commitments - Elements of State's Proof - State Required to Prove Petition for Commitment Filed Within 90 Days of Release Date

State v. Thiel, 2000 WI 67 (filed 23 June 2000)

The respondent challenged his commitment as a sexually violent person under Wis. Stat. section 980.06, claiming that the state failed to satisfy its burden of proving beyond a reasonable doubt that its petition for commitment was filed within 90 days of the respondent's release date. The issue before the supreme court was whether such proof is required in a chapter 980 proceeding. In a unanimous decision authored by Justice Bradley, the court concluded that such proof is necessary.

The court indicated that it would affirm an order of commitment if the trial record reflects that the petition was filed within 90 days of the respondent's release date, notwithstanding the circuit court's failure to make a specific finding to that effect. However, the trial record in this case did not establish beyond a reasonable doubt that the state filed its commitment petition within 90 days of the respondent's release. The supreme court accordingly reversed the order of the circuit court and remanded the case to the court of appeals with directions to address the issue of the appropriate remedy.

Justice Prosser did not participate in this decision.

Torts

Wrongful Death - Loss of Society and Companionship - Retroactive Increase in Damage Cap Held Unconstitutional

Neiman v. American National Property and Casualty Co., 2000 WI 83 (filed 7 July 2000)

The plaintiff was injured and her child stillborn as a result of an accident that occurred in September 1995. At the time of the accident, Wis. Stat. section 895.04(4) provided that in a wrongful death action, damages up to $150,000 could be awarded for the loss of society and companionship. Subsequently, the Legislature increased the amount of damages that could be awarded under this statute ($500,000 in the case of a deceased minor and $350,000 in the case of a deceased adult) and applied the increase retroactively.

The plaintiff's insurance company challenged the constitutionality of the retroactive increase, contending that the statute violates due process protections guaranteed by the United States and Wisconsin Constitutions.

In a majority decision authored by Justice Bablitch, the supreme court concluded that a retroactive increase in damages available pursuant to section 895.04(4) unfairly alters settled property rights without achieving a broad public benefit. Accordingly, the retroactive element of the statute is unconstitutional.

Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.

No County Liability for Lead Paint Inspection of Rent Assistance Property - Notice of Claim Not Required for Third Party Claim for Contribution

Dixson v. Wisconsin Health Organization Insurance Corp., 2000 WI 95 (filed 12 July 2000)

This case presented the issue of whether Milwaukee County, by virtue of its federally-mandated duty to inspect a rent assistance property, had a duty to test the property for the presence of lead-based paint. A 2-year-old child and her mother sued their landlord for injuries the child suffered as a result of ingesting lead-based paint. Shortly before the diagnosis, and pursuant to federal regulations, their apartment had been inspected by Milwaukee County's Rent Assistance Program, which found that the apartment "appeared to be in compliance" with HUD lead-based paint regulations.

The landlord impleaded Milwaukee County for contribution, alleging that the county was negligent in its performance of the inspection. In a majority decision authored by Justice Sykes, the supreme court concluded that the county's federally-mandated duty to inspect the rent assistance property in this case did not include the duty to test for the presence of lead-based paint. Wisconsin law places the responsibility for lead paint testing on the property owner. The court could identify no justification for shifting the duty to test for lead-based paint from the property owner to the county based upon federal regulations that impose upon the county a limited duty to inspect for deteriorating paint surfaces in properties leased by rent assistance recipients.

When Milwaukee County conducted an inspection of the plaintiffs' duplex pursuant to federal rent assistance program regulations, it did not assume a duty to test for lead-based paint. The obligation of testing for lead-based paint was not imposed upon the county by the regulations. Further, there is no evidence that the county voluntarily undertook to test for lead-based paint, and so the "Good Samaritan" rule expressed in Restatement (2d) of Torts, section 324A (1965), did not apply.

The court also addressed the jurisdictional question of whether the landlord was required to file a notice of claim pursuant to Wis. Stat. section 893.80 with regard to its claim for contribution against Milwaukee County. The supreme court concluded that such filing was unnecessary because a claim for contribution is a contingent claim not subject to the 120-day notice of claim requirement in the statute.

Chief Justice Abrahamson filed a dissenting opinion.

Open and Obvious Danger - Reconditioner's Liability

Strasser v. Transtech Mobile Fleet Service Inc., 2000 WI 87 (filed 7 July 2000)

The plaintiff was hurt when he slipped and fell from a crane ladder that the defendant fabricated and installed. He alleged that the defendant had negligently failed to install safety step treads on the ladder rungs and had negligently failed to warn him about the ladder's hazards. The trial court granted summary judgment to the defendant. Relying on Rolph v. EBI Cos., 159 Wis. 2d 518 (1991), it ruled that a "reconditioner" had no duty to bring the ladder into compliance with safety standards. Nor did the defendant have any duty to warn the plaintiff about an open and obvious danger. The court of appeals affirmed.

The supreme court, in a decision written by Justice Prosser, reversed. First, the court construed Rolph and the negligence of reconditioners. The court concluded that the defendant was a reconditioner "vocationally" but not "functionally." It did not "manufacture, distribute, or sell crane assemblies or ladders. It reconditioned one crane assembly by fabricating two ladders to replace the other ladders. It did not hold itself out as having special expertise to perform their repair work." (¶ 47). Had the defendant "remained a pure reconditioner, [it] would have had no duty to go beyond restoring the crane to its original condition." (¶ 48). But the defendant assumed a "new role" when it accepted the customer's demand that the new ladders be "stronger and sturdier." In sum, the supreme court held that the record was not ripe for summary judgment because factual disputes existed about these and other matters. (See ¶ 56).

The court also held that the defendant was not negligent as a matter of law by failing to warn the plaintiff about a condition known to be dangerous. The plaintiff knew that the ladders lacked stair treads, he had discussed their absence with others, and he had slipped twice on the ladders before being injured. The open and obvious danger doctrine operates as an affirmative defense by which the jury allocates negligence. Should the jury find that the defendant was liable "under principles of ordinary negligence in its fabrication of the ladders, then it would be permissible for the factfinder to consider whether [the plaintiff] confronted an open and obvious danger in its negligence allocation." (¶ 61).

Justice Wilcox, joined by Justice Crooks, dissented. They would have held that Rolph barred the claim for negligent design, manufacture, and installation of the ladders.

Wrongful Death - Adult Children

Czapinski v. St. Francis Hospital Inc., 2000 WI 80 (filed 6 July 2000)

78-year-old Helen, a widow, died following hip replacement surgery. Her two adult children filed a medical malpractice claim against the hospital and its insurers. The circuit court dismissed their complaint because adult children lacked standing to recover for loss of society and companionship for the wrongful death of a parent. The court also ruled that Wis. Stat. section 893.55(4) applies to medical malpractice actions only by limiting damages. Adult children are barred from bringing claims for loss of society and companionship by Wis. Stat. section 655.007.

The supreme court, in a decision written by Justice Crooks, affirmed the circuit court. "Statutory language along with legislative history and precedent lead us to hold that the intent of the legislature was to make applicable to medical malpractice death cases only the Wis. Stat. section 895.04(4) limit on damages, and not to incorporate the wrongful death classification of claimants entitled to bring such an action." (¶ 13). The court also held that an equal protection challenge was "without merit." (¶ 26). The Legislature's categorization of tortfeasors and tort victims was not "arbitrary or irrational." (¶ 32).

Negligence - Firefighter's Rule - EMTs

Pinter v. American Family Ins. Co., 2000 WI 75 (filed 30 June 2000)

The plaintiff was an EMT who, during the course of his duties, suffered a hernia while providing emergency medical assistance to a person injured in a car accident. He later sued the drivers who were involved in the original accident. The circuit court granted summary judgment dismissing the complaint because the claims were barred by the "firefighter's rule." The court of appeals certified the following question to the supreme court:

"Does the firefighter's rule, as adopted in Hass v. Chicago & North Western Railway, 48 Wis. 2d 321 (1970), bar an emergency medical technician (EMT) from pursuing a cause of action against a negligent driver for injuries sustained while rendering aid to the victim of an automobile accident?"

The supreme court, in an opinion written by Justice Wilcox, answered in the affirmative; the EMT's claim is barred. First, Hass remains good law. Second, although Hass concerned a firefighter, the public policy grounds extended to EMTs as well. "Like fires, nearly all automobile accidents are the result of negligence" (¶ 46). Neither EMTs nor firefighters can justifiably complain about the very negligence that creates their employment.

Chief Justice Abrahamson, joined by Justice Bradley, dissented.

Medical Malpractice - Repose - Statutes of Limitations

Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98 (filed 12 July 2000)

The plaintiff alleged that she became blind in one eye as a result of her "newborn examination" in 1982. She claimed that she did not discover the condition until 1993, when she was 10 years old. This action was filed in 1996. The circuit court denied the defendant insurer's motion to dismiss the complaint. The judge determined that the applicable statutes of repose were unconstitutional in this case. The court of appeals certified the matter to the supreme court.

The supreme court, in an opinion written by Justice Prosser, reversed. The court overruled Estate of Makos v. Wisconsin Health Care Fund, 211 Wis. 2d 41 (1997). It held "that Wis. Stat. §§ 893.55(1)(b) and 893.56 are constitutional for three reasons. First, the statutes do not violate the right-to-remedy provision of the Wisconsin Constitution. Second, §§ 893.55(1)(b) and 893.56 do not offend equal protection because the classification of minor medical malpractice claimants is related rationally to the legitimate legislative objectives of reducing health care costs. Third, the statutes do not violate [the plaintiff's] right to procedural due process because an unaccrued cause of action is not a property interest" (¶ 6).

Justice Crooks, joined by Justice Bablitch, dissented on the ground that the statutes of repose, as applied, "closed the courthouse doors" to children.

Unemployment Compensation

Labor Disputes - Lockouts

Brauneis v. Labor and Industry Review Commission, 2000 WI 69 (filed 27 June 2000)

The petitioners were sheet metal workers employed by the Illingworth Corporation at the latter's Milwaukee facility. They are members of the union that represents sheet metal workers.

Illingworth is a member of the Sheet Metal and Air Conditioning Contractors' Association (association), which bargains collectively on behalf of Illingworth and other association members. The association members agreed to be bound by the association's actions concerning negotiations with the union, including instructions and directives regarding concerted action.

The union struck the Construction Supply & Erection (CS&E) company, which also was an association member. The association thereafter directed its members to inform union employees that they were locked out. Illingworth participated in the lockout although the union did not strike against Illingworth. Illingworth and CS&E have separate ownership and management and operate out of separate facilities, though they both employ members of the union and some members work at both companies.

The petitioners applied for unemployment compensation benefits for the time they were locked out of Illingworth. The Labor and Industry Review Commission held that the employees were not entitled to unemployment compensation benefits. The circuit court reversed LIRC.

In a unanimous decision authored by Justice Crooks, the supreme court affirmed the circuit court. The issue before the supreme court was whether employees are eligible for unemployment compensation when an employer locks out employees who are members of a union because the union is striking another employer with which the employees' employer is associated. The supreme court concluded that the locked out employees were entitled to unemployment compensation.

Wis. Stat. section 108.04(10)(a) provides that an employee who has lost work because of a strike or other bona fide labor dispute, other than a lockout, is not eligible to receive unemployment compensation. In this statute, the term "lockout" means "the barring of one or more employees from their employment in an establishment by an employer as part of a labor dispute, which is not directly subsequent to a strike or other job action of a labor union or group of employees of the employer."

In this case Illingworth's conduct was not directly subsequent to a strike or other job action by the union directed at Illingworth as an employer. The employees did not strike Illingworth or take any other job action. The initial and only job action between Illingworth and the petitioners was Illingworth's lockout. The lockout thus entitled the petitioners to unemployment compensation benefits.

Worker's Compensation

Reopening an Unscheduled Injury Award When Later Scheduled Injury Causes End of an Employment Relationship - Availability of Total Disability Benefits Based Upon a Combination of Scheduled and Unscheduled Injuries

Mireles v. Labor and Industry Review Commission, 2000 WI 96 (filed 12 July 2000)

This case involved a refusal by the Labor and Industry Review Commission to award permanent disability benefits under the Worker's Compensation Act. Permanent disability benefits are divided into two distinct categories: compensation for "scheduled" injuries and compensation for "unscheduled" injuries. Scheduled injuries are enumerated in Wis. Stat. section 102.52 and require the payment of benefits for a specific number of weeks, as outlined in the statute. They are presumed to include compensation for an injured worker's loss of earning capacity. Unscheduled injuries, which are primarily injuries to the torso and head, as well as mental injuries, usually require more individualized evaluation than scheduled injuries. Permanent total disability based upon an unscheduled injury or injuries results in lifetime benefits, with lesser awards for injuries resulting in permanent partial disability.

In this case the plaintiff suffered an "unscheduled" back injury while working for her employer. She eventually returned to work and subsequently suffered a "scheduled" wrist injury that precluded her from continuing employment with that employer. The first issue considered by the supreme court was whether an injured worker can apply for a reopening of an unscheduled injury award when a later scheduled injury causes the end of the employment relationship. In a unanimous decision authored by Justice Prosser, the court concluded that a worker's compensation award may be reopened to account for loss of earning capacity from an unscheduled injury, even if a scheduled injury causes the termination of an employment relationship.

The second issue addressed in this opinion was whether an injured worker can qualify for permanent total disability benefits based upon a combination of scheduled and unscheduled injuries. The court concluded that permanent total disability awards may be based upon a combination of a worker's scheduled and unscheduled injuries.

Wisconsin Lawyer