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Vol. 73, No. 7, July 2000

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Court of Appeals Digest

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

| Attorneys | Civil Procedure |
| Criminal Procedure | Insurance | Prisoner Litigation |
| Probate | Torts | Trials |

Writ of Certiorari - Time Limitations for Commencing Certiorari Actions

State ex rel. Collins v. Cooke, 2000 WI App 101 (filed 5 April 2000) (ordered published 31 May 2000)

The inmate filed a pro se certiorari action requesting relief from decisions of the disciplinary committee and program review committee at the correctional institution in which he was confined. The circuit court dismissed his certiorari petition because he failed to commence the certiorari action within 45 days of the government's decision as to which review was sought.

On appeal the inmate contended that the circuit court wrongly interpreted Wis. Stat. section 893.735, which establishes the 45-day time limitation, arguing that it only applies to certiorari actions made "on behalf of a prisoner," not by the prisoner himself or herself.

In a decision authored by Judge Snyder, the court of appeals concluded that any petition for writ of certiorari under section 893.735 must be made within 45 days of the government's decision, regardless of whether the petition is filed by the prisoner or by his or her counsel.

Wisconsin Basic Will - Failure to Sign Next to Gifted Property

Caflisch v. Staum, 2000 WI App 113 (filed 25 April 2000) (ordered published 31 May 2000)

The deceased died in 1998. She had provided for the disposition of her property with the use of a standard Wisconsin basic will. See Wis. Stat. § 853.55. The will was signed in 1991.

The will lists four godchildren in its "disposition of property" section. Next to each recipient's name are two boxes, one for describing the property gifted and the other for the signature of the testator. The form instructs the testator to affix his or her signature next to each gift and warns that, if there is no signature next to any box, no gift is made.

In this particular case there was no signature next to the gift for one of the recipients. Nevertheless, the probate court concluded that the testator had substantially complied with the instructions and found the gift to that recipient valid.

In a decision authored by Judge Peterson, the court of appeals reversed. The controlling statute requires the testator to sign in the appropriate box to make a valid gift and, in this case, that was not done.

The legislature amended the basic will statute in 1997. Section 853.51(1)(a) (1997-98) only requires the testator to complete the blanks, boxes, and lines "substantially in accordance with the instructions." However, this language only applies "to deaths occurring after January 1, 1999, except with respect to irrevocable governing instruments executed before that date." In this case the deceased died in 1998 and the substantial compliance amendment was inapplicable. Further, the court concluded that the will in question was not an irrevocable governing instrument.

Recreational Immunity Statute - Condominium Associations

Bethke v. Lauderdale of La Crosse Inc., 2000 WI App 107 (filed 13 April 2000) (ordered published 31 May 2000)

The plaintiff purchased a waterfront condominium and bought a boat slip on the condominium association's dock. He was injured while attempting to access his boat and sued the condominium association alleging, that his injuries were caused by its negligence. The association is responsible for operating and maintaining the common areas of the complex and each condominium owner is a member of it.

The association moved for summary judgment, claiming that the plaintiff's suit was barred by Wis. Stat. section 895.52, Wisconsin's recreational immunity statute. The association contended that, as a nonprofit organization, it was immune from liability for the plaintiff's injuries. The circuit court agreed.

In a decision authored by Judge Deininger, the court of appeals affirmed. It concluded that the association was immune from liability under section 895.52 as a nonprofit organization. It further held that the application of the statute to the present facts did not violate the plaintiff's right to equal protection of the laws.

Statute of Limitations - Medical Malpractice

Anderson v. Sauk Prairie Mem. Hosp., 2000 WI App 108 (27 April 2000) (ordered published 31 May 2000)

The plaintiff appealed the dismissal of her medical malpractice claim against the Wisconsin Patients Compensation Fund (the Fund). The court of appeals, in an opinion written by Judge Deininger, reversed.

The Fund argued that the plaintiff had not served it in a timely manner and that the claim was barred by the statute of limitations. After carefully reviewing the case law on this issue, the court concluded that three principal cases "dispose of the question presently before us. The statutory limitation period set forth in Wis. Stat. § 893.55(1) applies only to the commencement of an action against the health care providers and does not apply to the naming of the Fund as a defendant. Although a medical malpractice plaintiff is required to name the Fund as a party to the action, see Wis. Stat. § 655.27(5), the plaintiff may do so after the time period prescribed in Wis. Stat. § 893.55(1) has passed. So long as the health care providers were sued before the statute of limitations had run, and so long as the Fund is named in time for it to participate in and defend against the lawsuit, the plaintiff's suit against the Fund must be allowed to proceed" (¶ 12). Finally, the court ruled that the plaintiff's later service of process was timely and effective despite a "failed" earlier attempt.

Medical Malpractice - Vicarious Liability

Lewis v. Physicians Ins. Co., 2000 WI App 95 (filed 25 April 2000) (ordered published 31 May 2000)

The trial record demonstrated without dispute that a laparotomy pad was left inside of the plaintiff during gall bladder surgery. A second surgery was needed to remove the pad. Two nurses, employed by the hospital, had the duty to check for the pads. Neither nurse was employed by the surgeon. The issue on appeal was "whether a surgeon, as the 'captain' of the operating room, is vicariously liable for the negligence of operating room personnel not selected by the surgeon, where the surgeon is not negligent."

The court of appeals, in an opinion written by Judge Fine, answered "no" and reversed the circuit court. This was not a case in which either the surgeon or someone else was negligent; the plaintiff admitted that the surgeon was not negligent. Rather, the plaintiff relied on a flawed "captain of the ship" rationale. No Wisconsin appellate court had ever imposed liability in a medical malpractice case on this basis, and it found only weak support in the case law of other states.

Negligence Per Se - OSHA Violations

Taft v. Derricks, 2000 WI App 103 (filed 4 April 2000) (ordered published 31 May 2000)

The defense appealed a judgment based on a jury verdict that found him 55 percent at fault for injuries sustained when the plaintiff was injured while working on his farm. The court of appeals, in an opinion written by Judge Hoover, reversed in part and affirmed in part.

The pivotal issue concerned whether the judge erred "by instructing the jury to find [the defendant] negligent if he violated the general duty clause of the Occupational, Safety, and Health Act (OSHA)." The court held that this instruction was erroneous. Negligence per se requires a determination that the legislature intended a statutory infraction to form the basis of civil liability. The "substantial weight of federal and state authority" holds that OSHA violations are not negligence per se.

In this case the erroneous instruction centered on OSHA's "general duty clause." This could not support a negligence per se theory because "29 U.S.C. § 653(b)(4) expressly prohibits using OSHA to enlarge or affect in any manner the common law duties and obligations of employers" (¶ 20). The court was further influenced by the defendant's status as a "small farmer."

Jury Selection - Erroneous Exercise of Peremptory Challenge

State v. Nantelle, 2000 WI App 110 (filed 11 April 2000) (ordered published 31 May 2000)

The sole issue in this case was whether the circuit court erred by failing to permit the defendant to correct his counsel's mistaken exercise of a peremptory challenge after the jury was accepted but before it was sworn. In a decision authored by Judge Hoover, the court of appeals concluded that, as a matter of law, no peremptory strikes may be exercised after both parties have accepted the jury they have chosen, even though the jury is not yet sworn.

The court also concluded that, even if the circuit court had the discretion to replace the mistakenly struck juror, it would nevertheless affirm the circuit judge's decision denying the substitution. Many reasons were articulated for this conclusion. The court noted that the substitution of jurors after the parties accepted the jury would have disrupted the jury selection process, would have revealed to the jury which party wanted a particular juror, and may have upset the strategy that attends the alternating exercise of peremptory strikes as occurred in this case. Finally, although there is no dispute that this was an honest mistake by defense counsel, the court noted that allowing a party to change a peremptory strike after the jury is chosen could encourage a dishonest mistake by an unscrupulous attorney.

Finally, the court concluded that even if the circuit judge committed error by declining the defense request to substitute jurors, the error was harmless. This case is not governed by State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), because the defendant was not required to exercise a peremptory strike to rectify a trial court error and there is no reasonable possibility that the presence on the jury of the juror defense counsel intended to strike contributed to the conviction.

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.