Vol. 74, No. 8, August 2001

Court of Appeals Digest

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

• Criminal Law
• Criminal Procedure
• Insurance
• Lemon Law
• Municipal Law
• Torts
• Worker's Compensation

Criminal Law

Child Abuse - Confidentiality - Reporters

State v. Polashek, 2001 WI App 130 (filed 30 May 2001) (ordered published 27 June 2001)

The state charged a school superintendent with violating Wis. Stat. section 48.981(7)(f) when he allegedly disclosed the identity of two school employees who had reported possible child abuse involving the parents. Section 48.981 mandates that certain persons report suspected child abuse but makes the report confidential. Breaches of confidentiality are criminal offenses. This is an interlocutory appeal brought by the state because the trial court's proffered jury instruction did not correctly reflect the law.

The court of appeals, in an opinion written by Chief Judge Cane, agreed and reversed. The state challenged the proposed instruction on two grounds: 1) it required the state to prove that the parents to whom defendant wrote the letter did not previously know the employees' identities; and 2) it required the state to prove intent. The court agreed with both arguments. After examining the statute's legislative history, the court held that the statute protects the reporters' identities as well as the report itself. Thus, the state need not prove that the "disclosed information was a surprise or unknown to the recipient of the information" (¶ 24). The recipients' previous knowledge of the information does not provide grounds for disclosure or absolve one from liability. Finally, the court held that section 48.981(7) is a strict liability statute; thus, intent is not an element.

Criminal Procedure

Plea Negotiations - Material Breach by the State - Remedies

State v. Howard, 2001 WI App 137 (filed 15 May 2001) (ordered published 27 June 2001)

The defendant and the state entered into a plea agreement pursuant to which the defendant entered several no contest pleas and was found guilty. At sentencing the prosecutor violated the plea agreement when he recommended that a sentence on one of several charges be served consecutively to other sentences imposed in the case instead of concurrently with them.

The first issue confronted by the court was whether this violation of the plea agreement was merely "technical" or instead "substantial and material." In a decision authored by Chief Judge Cane, the court of appeals concluded that "where a plea agreement undis-putedly indicates that a recommendation is to be for concurrent sentences, an undisputed recommendation of consecutive sentences that is not corrected at the sentencing hearing constitutes a material and substantial breach of the plea agreement as a matter of law" (¶ 19).

In this case the defendant's attorney did not object to the state's breach of the plea agreement at the sentencing hearing, thereby waiving the right to directly challenge the breach of the plea. See Grant v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976). Therefore, the defendant is entitled to a remedy for the breach only if he was provided ineffective assistance of counsel. To prevail on an ineffectiveness of counsel claim, the defense must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant. In State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), the Wisconsin Supreme Court concluded that when a prosecutor materially and substantially breaches a plea agreement, the breach always results in prejudice to the defendant. Accordingly, if the defendant is able to establish that his attorney's performance was deficient in this case, prejudice will be presumed. The court of appeals remanded the case to the circuit court to conduct a hearing on the issue of defense counsel's alleged deficient performance.

If the trial court determines that defense counsel acted deficiently, it will need to consider the appropriate remedy. If the court determines that resentencing is appropriate, the court should order resentencing by a different judge. See ¶ 36. "The choice of remedy is not up to the defendant; it rests with the court. However, if the defendant seeks only specific performance by resentencing, then the court can simply order resentencing by a different judge. When selecting a remedy, the sentencing court should bear in mind that specific performance, the less extreme remedy, is preferred" (¶ 37).

Probation Revocation - Failure to Admit Sexual Misconduct Associated With Underlying Conviction

State ex rel. Tate v. Schwarz, 2001 WI App 131 (filed 2 May 2001) (ordered published 27 June 2001)

Despite his denial of guilt, the defendant was convicted of sexually assaulting his former stepdaughter. The circuit court imposed and stayed a lengthy sentence and placed the defendant on probation. One of the conditions of probation was participation in sex offender treatment. While the defendant was pursuing an appeal of his conviction, his probation was revoked because he refused to admit to child sexual assault as part of his sex offender treatment.

The defendant brought a certiorari action challenging the probation revocation. The circuit court denied his petition. In a decision authored by Judge Anderson, the court of appeals affirmed.

The issue before the court was whether a probationer with a pending direct appeal can be revoked for failing to admit the details of the crime for which he or she was convicted and placed on probation. The court held that a probationer with an active direct appeal on the merits cannot be revoked for refusing to admit to the crime. The court noted that this decision would not work a hardship because, at most, treatment would be delayed until the direct appeal is disposed of and, if the term of probation is expiring, it could be extended until treatment is completed.

Procedurally, a person in the defendant's position should move the circuit court to amend the conditions of probation before there is a revocation hearing. "A writ of certiorari [such as the one which is the subject of this appeal], coming after a probation revocation hearing, will result in waiver of a challenge to probation conditions" (¶ 14). Accordingly, on the narrow ground of waiver, the court of appeals affirmed.

Discovery - Statements of the Defendant

State v. DeLao, 2001 WI App 132 (filed 2 May 2001) (ordered published 27 June 2001)

The defendant filed a discovery demand, specifically demanding that the state provide her with written summaries of any "oral, written or recorded statements" she made, pursuant to Wis. Stat. section 971.23(1)(b). At trial the defense attorney announced to the jury during opening statements that the defendant would take the stand and testify on her own behalf. On the second day of trial, after the state had rested, the district attorney advised the trial court that the state had in its possession statements made by the defendant, which had not been disclosed to the defense.

The prosecutor further indicated an intention to use these statements to impeach the defendant if she testified. The prosecutor explained to the court that the state's primary investigator in the shooting incident that was being tried had just that day made the prosecutor aware of the defendant's statements, although the investigator was aware of those statements prior to trial. The trial court ruled that, if the defendant testified, the state could use the statements in question for impeachment purposes and, in fact, that occurred. In a decision authored by Judge Snyder, the court of appeals reversed.

The state argued that because the district attorney was unaware of the defendant's statements, they were not ones that the district attorney planned to use in the course of trial and thus were not discoverable. The appellate court declined to adopt the state's narrow characterization of the discovery statute. "Wisconsin courts have held that the prosecutorial unit, which includes both the district attorney's and law enforcement offices, must be viewed as one unit for the purposes of the discovery process" (¶ 18). The prosecutor's discovery obligation "extends to material and information in the possession or control of members of the prosecution's staff and in the possession 'of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported' to [the prosecutor's] office" (¶ 19)(citations omitted). Thus, a discovery violation occurred when the state failed to provide the defense with the statements in the possession of the chief investigator.

Section 973.23(7m) requires the trial court to exclude evidence that is not produced pursuant to a discovery demand unless "good cause is shown for failure to comply." The appellate court concluded that no good cause existed for the withholding of the evidence in this case and that the only appropriate remedy was its exclusion. The trial court erred in allowing the state to use the defendant's statements for impeachment purposes and the case was remanded for a new trial.

Insurance

UIM Coverage - Noneconomic Damages - Canadian No-fault Laws

State Farm Mut. Automobile Ins. Co. v. Gillette, 2001 WI App 123 (filed 24 May 2001) (ordered published 27 June 2001)

A Wisconsin resident, Ostlund, was injured while driving his mother's truck in Manitoba, Canada, when a Canadian driver slammed into the back of his lawfully stopped vehicle. The truck was covered by a State Farm policy that carried UM, but not UIM, protection. Ostlund himself, however, was insured by two other State Farm policies that provided UM and UIM coverage. Both Ostlund and his passenger submitted claims to the Manitoba Public Insurance Corporation (MPIC), which administers that province's no-fault insurance plan. The trial court ruled that Ostlund and his passenger were not entitled to UM or UIM coverage by State Farm.

The court of appeals, in an opinion written by Judge Hue, reversed in part and affirmed in part. The crux of the opinion grapples with the application of Canadian no-fault coverage to Wisconsin law concerning UM and UIM coverage. First, the court held that because of the MPIC coverage the tortfeasor's vehicle was "insured" within the meaning of the State Farm policies; put differently, there was not uninsured motorist (UM) coverage. Second, in comparing the MPIC coverage with the State Farm policies, and using "fault principles as the basis for recovery," the underinsured motorist (UIM) coverage did apply.

The issue was, however, complicated because Manitoba law provides that an injured party may not collect for pain and suffering or other noneconomic damages (¶ 27). Nonetheless, the court held that "there are only two requirements under the contract for the [UIM] coverage to be triggered: 1) causal negligence on the part of that underinsured motorist, and 2) damages resulting from the accident that the at-fault motorist's insurance does not cover" (¶ 29). State Farm conceded both elements. Thus, UIM coverage applies "wholly independent of any restrictions imposed by the applicable law in the state or territory where the accident occurred which limits or restricts an insured's ability to recover damages from the tortfeasor" (¶ 30).

Lemon Law

"Comparable New" Vehicle - ADR - Remedies

Kiss v. GMC, 2001 WI App 122 (filed 9 May 2001) (ordered published 27 June 2001)

Plaintiff Kiss experienced problems with a tow truck that he had purchased that came equipped with a Vulcan 882 towing package. Initially, he filed a pro se complaint and agreed to participate in informal dispute resolution procedures. Kiss settled for GM's promise to replace the vehicle within 30 days of his acceptance of the settlement "tribunal's" decision. Later GM acknowledged that it could not replace the vehicle within the 30-day framework. Kiss rejected GM's offer to transfer the "old tow unit" to a new cab and chassis. Despite further negotiations, Kiss remained unsatisfied with GM's offers and filed this action under the Lemon Law. The circuit court granted GM's motion to dismiss because it had made a "replacement vehicle" available within the meaning of the Lemon Law.

The court of appeals, in an opinion written by Judge Brown, reversed. Reaching an issue of first impression, the court rejected GM's contention that it could transfer the "current tow package" to a new cab and chassis. Such an accommodation failed to return Kiss to the same position he was in at the point of sale because it left Kiss with "an old tow package with an expiring warranty." "Simply put, transferring nondefective automobile accessories into replacement vehicles is not contemplated within the Lemon Law statute or consistent with its public policy of 'returning unfortunate consumers back to where they thought they were when they first purchased that new automobile'" (¶ 17).

Second, the court addressed GM's contention that Kiss's acceptance of the dispute settlement award barred a Lemon Law action and limited Kiss to an action to enforce the award under Wis. Stat. chapter 788. GM's argument essentially insisted that Kiss had "waived" his Lemon Law remedies, a position flatly rejected by the Lemon Law itself. See Wis. Stat. § 218.015(6). Nothing in the Lemon Law or the applicable regulations binds a consumer to surrender other Lemon Law remedies (¶ 29). In short, the procedures bound the manufacturer but not the consumer.

Municipal Law

Notice of Claim Statute - Six-month Statute of Limitations Upheld

Griffin v. Milwaukee Transport Services Inc., 2001 WI App 125 (filed 15 May 2001) (ordered published 27 June 2001)

This case concerns Wisconsin's notice of claim statute. See Wis. Stat. § 893.80. More specifically, it deals with the statute of limitation after a governmental body has disallowed a claim submitted to it. The statute sets forth two different statutes of limitation: one for claimants who have received a notice of disallowance from the government and another for claimants who have not. In the former situation there is a six-month statute of limitation; for the latter there is a three-year time period within which to file suit.

The issue before the courts in this case was the constitutionality of the six-month limitation. The circuit court concluded that the shorter limitation period for those who receive notice of disallowance is unconstitutional on equal protection grounds.

In an opinion authored by Judge Curley, the court of appeals reversed. Applying the rational basis test to the six-month limitation period, the court concluded that the statute is constitutional. By incorporating different time frames into the statute, the Legislature intended to promote the preservation of public funds and to expedite certain actions brought against the government. Legitimate claims can be resolved without the necessity of a formal action. Claims that are baseless, or where the government believes it bears no liability or no damages exist, must be brought within six months if the governmental body sends a formal notice both disallowing the claim and advising the claimant of the shortened period for bringing suit. "This procedure forces a speedy hearing on these claims while they are fresh and the witnesses are readily available. The rationale permitting other claimants three years in which to bring suit is simple. Although the remaining claimants are given additional time to bring suit, this scheme also benefits the government by affording it additional time to investigate these claims, settle them, or possibly fund the claim. Thus, there are rational bases for the disparity" (¶ 20).

Torts

Firefighters' Rule - Public Works Supervisors

Mullen v. Cedar River Lumber Co., 2001 WI App 142 (filed 22 May 2001) (ordered published 27 June 2001)

The plaintiff worked as the city's superintendent of public works. When one of the defendant's trucks was involved in a traffic accident, the plaintiff went to the accident site in his official capacity and was injured when he slipped on diesel fuel that had leaked onto the roadway. Plaintiff sued the trucking company alleging that its driver's negligence had caused his injury. The trial court dismissed the complaint based on the "firefighter's rule."

The court of appeals, in an opinion written by Chief Judge Cane, reversed. Case law categorically precludes firefighters and, by parity of reasoning, EMTs, from recovering damages for injuries sustained while performing their duties. On public policy grounds and the record in this case, the court declined to extend the rule to the category of "superintendents of public works" (for example, the record demonstrated that fuel spills constituted only a "small part" of plaintiff's job, ¶ 15). Firefighters and EMTs are "professional rescuer[s]" who are specially trained and employed to operate in emergency situations (¶ 16).

Intoxicated Guests - Assumed Duty - No Immunity

Stephenson v. Universal Metric Inc., 2001 WI App 128 (filed 15 May 2001) (ordered published 27 June 2001)

Defendant Kreuser attended a December "meeting" at a country club sponsored by his employer, UMI, for purposes of fostering "good will" and bolstering employee morale. One employee, Devine, became extremely intoxicated. A bartender testified that Kreuser promised her that he would drive Devine home, a promise which Kreuser denied making. Without dispute, Devine drove away from the club, later crossed the center line, and killed the plaintiff's spouse, and himself, in a car accident. The circuit court dismissed UMI and its insurer based on their immunity under Wis. Stat. section 125.035(2) (1997-98), but concluded that Kreuser was not immune.

The court of appeals, in an opinion written by Judge Schudson, affirmed the ruling against Kreuser. Construing Gritzner v. Michael R., 2000 WI 68, it held that Restatement (Second) of Torts § 324A (1965) applied to "Kreuser's liability to third persons for his alleged negligent failure to perform the undertaking he promised to render" (¶ 9). Moreover, "nothing" in section 125.035(2) immunized Kreuser's conduct, although the court noted the "potential irony" that a designated driver could be held liable, but not irresponsible bartenders or drinking companions (¶ 12).

Worker's Compensation

"Private Errand" Doctrine - "Premises" of Employer

Begel v. Wisconsin Labor and Industry Review Comm'n, 2001 WI App 134 (filed 3 May 2001) (ordered published 27 June 2001)

The plaintiff worked as a research assistant for a university professor. He had to meet periodically with the professor. Some of these meetings occurred in a construction trailer where the professor and his family were living while they were building a new home. After one of these meetings at the construction site, the plaintiff volunteered to help his professor attach sheets of paneling to floor joists. After 20 minutes of work it began to rain and the professor asked the plaintiff to lift one end of a joist so that the exposed portion of the floor could be covered with a tarp. During this maneuver, the plaintiff fell 9 ½ feet into a hole in the floor, suffering a spinal cord injury that rendered him quadriplegic.

On these facts the Labor and Industry Review Commission (LIRC) denied worker's compensation to the plaintiff, concluding that his injury was not compensable under the Worker's Compensation Act. The circuit court reversed LIRC and the court of appeals, in a decision authored by Judge Roggensack, affirmed the circuit court.

The plaintiff asserted that moving the joist was a service growing out of and incidental to his employment under the "private errand" doctrine. Under this doctrine, if a person in authority over the employee asks the employee to perform a service for the personal benefit of the employer or the employee's superior and the employee is injured during the performance of the task, his injury is one that grew out of and was incidental to his employment unless the request is "clearly unauthorized." See ¶ 11.

The court of appeals concluded that, under the private errand doctrine, the plaintiff was performing services growing out of and incidental to his employment at the time of his injury. The plaintiff's employment required him to travel to the construction site and therefore that site was the "premises" of the employer. He had come to the site because his work required him to do so and the service rendered benefited his supervisor. Given the relationship between the plaintiff and the professor, it would have been difficult for the plaintiff to refuse the professor's request for help. Finally, the request that the plaintiff help the professor move the joist was not so clearly unauthorized that the plaintiff's response could not be said to grow out of or be incidental to his employment.