Wisconsin Lawyer
Vol. 82, No. 9, September 2009

• Criminal Procedure
• Employment Law
• Family Law
• Real Property
• Torts

Criminal Procedure

State v. Robinson, 2009 WI App 97 (filed 30 June 2009) (ordered published 29 July 2009)

The defendant was convicted of possessing drugs with intent to deliver. Police officers found the drugs after they entered the defendant’s apartment on the mistaken belief that the defendant was wanted on an outstanding felony warrant. In reality, the ersatz warrant was a commitment order that had not even been signed by a judge, although the record check had revealed two open warrants (see ¶ 2). The trial judge ruled that the search was nonetheless lawful.

The court of appeals affirmed in an opinion authored by Judge Curley.
“[E]xtrapolating from the holding in United States v. Leon, 468 U.S. 897 (1984), adopted in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, that evidence found in a search is subject to a good faith exception to the exclusionary rule when the police officer relied in good faith upon the search warrant’s validity, we conclude that here, the officer’s good faith belief that there existed an open felony warrant for Robinson’s arrest is subject to the exception” (¶ 1). “The trial court found that Officer Yaghnam had a good faith belief that what he discovered was an open felony warrant for Robinson’s arrest. We concur. Here, the officer determined the existence of the warrant by running Robinson’s name through the NCIC and CIB system.... The use of these computer data bases appears to be standard operating procedure for police departments in determining whether there are any outstanding arrest warrants on a subject.... Like the reasoning in Leon and Eason, ‘[s]uppressing evidence obtained in a situation where a reasonable officer would believe an arrest warrant existed would not help to deter misconduct by arresting officers, because there is no misconduct to deter’” (¶ 11).

The court also pointed to facts that corroborated information from a citizen informant and the belief by officers that the defendant was in the apartment when they entered (see ¶ 14). “Here, the officers believed that they had a valid felony arrest warrant for Robinson. They knew that he was in the apartment and refused to open the door.... When the police heard footsteps moving away from the door suggesting a possible escape attempt or a destruction of evidence, exigent circumstances were created permitting the officers to kick in the door” (¶ 17).

State v. Earl, 2009 WI App 99 (filed 24 June 2009) (ordered published 29 July 2009)

Earl was convicted of possessing marijuana with intent to deliver. The trial court denied his motion to suppress evidence of the contents of a Federal Express package that was not addressed to him and was sent to a vacant lot.

The court of appeals affirmed in an opinion written by Judge Neubauer. Because Earl had no reasonable expectation of privacy in the package, he could not challenge the fact that police officers opened it. “We know of no case addressing whether a recipient has a legitimate expectation of privacy in a package where the sender’s identity is unknown and the recipient’s name is fictitious and the address vacant” (¶ 16). “The package in this case involves more (or less) than just a false name. Here, Earl provided no information about the sender. The package was addressed to both a fictitious name and a vacant apartment, leaving nothing at all to link the package to Earl. After flagging down the FedEx driver, Earl identified himself, and stated that he was picking up the package for Mark Harris. The objective manifestations of Earl’s intent all lead to a conclusion that he sought to disassociate himself from the package – not that it was intended for him. Stated differently, there was nothing on the surface to indicate that Earl had any connection with the package, much less any dominion or control over it. Earl has failed to meet his burden to establish that he had a reasonable expectation of privacy in the package at the time of the search” (¶ 17).

State v. Hess, 2009 WI App 105 (filed 17 June 2009) (ordered published 29 July 2009)

The defendant, Hess, was released on bond pending sentencing for a felony conviction of operating a motor vehicle while intoxicated. The trial court ordered that a presentence investigation report (PSI) be prepared. Hess left the first interview before it was completed and then failed to cooperate with the PSI writer in setting up a second interview. The PSI writer notified the judge about this problem, and the trial court ordered a civil bench warrant for Hess’s arrest. A deputy sheriff then went to Hess’s residence to arrest him. While the deputy was escorting him to the squad car, he smelled alcohol on Hess’s breath. A subsequent forced blood test revealed that Hess’s blood alcohol concentration was 0.118. This was a breach of the condition of Hess’s bond requiring that he refrain from drinking alcohol. The state then charged Hess with felony bail jumping.

Hess filed a motion to suppress the blood test evidence, alleging that the state obtained the evidence as the result of an illegally issued civil bench warrant in violation of his federal and state constitutional rights. He argued for application of the exclusionary rule on the ground that the trial court had no authority to issue a civil bench warrant for his arrest. The trial court concluded that the arrest warrant was legal and, even if it were not, the good-faith exception saved its admissibility. The trial court reasoned that the deputy had a good-faith reason to believe that the warrant was valid, and the judge had the authority to issue it. A jury trial was conducted, and the defendant was convicted of bail jumping. This appeal followed. In an opinion authored by Chief Judge Brown, the court of appeals reversed.

The appellate court first addressed the validity of the civil bench warrant. “Wisconsin Stat. ch. 818 (2007-08) is the civil bench warrant chapter and it authorizes trial judges to issue bench warrants in certain civil cases. The underlying action in this case is a felony criminal case, so the trial court had no authority to issue a civil bench warrant” (¶ 11). The court further concluded that the circuit judge had no basis in this case to issue either a criminal bench warrant or a contempt warrant (see ¶¶ 12-13). “Courts are authorized to issue arrest warrants pursuant to statute only. The trial court’s arrest warrant was therefore invalid because it had no authority to issue an arrest warrant when there was no order requiring Hess’s presence and no facts suggesting Hess had violated the terms of his bond” (¶ 14) (citation omitted).

Given that the arrest warrant was invalid, the court next considered if the evidence seized as a result of executing the invalid warrant must be suppressed. It concluded that the evidence of Hess’s intoxication is subject to the exclusionary rule “because it was found pursuant to a warrant issued by a judge with no legal authority to issue such a warrant” (¶ 18).

Lastly, the court considered whether the evidence was admissible under the good-faith exception to the exclusionary rule. Simply put, “the good faith exception carves out an exception to the exclusionary rule allowing the admission of evidence when law enforcement officers did what they were supposed to – they followed through in objective good faith, but someone made an accidental clerical or technical error or the judge erred in concluding that the law enforcement’s application fulfilled the requirements for a warrant” (¶ 21). On the facts of this case, the appellate court concluded that “a warrant issued by a judge without any authority whatsoever to do so is void, any search or seizure pursuant to that void warrant is not clothed with judicial authority, and the good faith exception does not operate to save the evidence seized” (¶ 30). In reaching this conclusion the court noted that the exclusionary rule serves two purposes: the deterrence of police misconduct and, as particularly applicable here, the preservation of judicial integrity (see ¶ 2).

The court of appeals concluded this decision with the following comment: “The trial court seemed to be of the opinion that, if it has no authority to haul a convicted defendant into court for failing to cooperate with the PSI writer, then criminal defendants may stop participating in the fact gathering that takes place during a PSI. We look at it differently. As we have already stated, a PSI can be written without the defendant’s cooperation. If a defendant does not want to give his or her version of life history and family situation and does not want to give his or her side of the story with regard to past and present criminal behavior, so be it. The PSI will still be written and will still be submitted to the court for its consideration. The recalcitrant defendant cannot complain later if the PSI appears to the defendant to be one-sided. And, should the defendant fail to cooperate, he or she does so at great risk. A sentencing court could well find that the behavior shows contempt for the judicial process and is therefore indicative of bad character” (¶ 31). 

State v. Goodson, 2009 WI App 107 (filed 19 May 2009) (ordered published 29 July 2009)

When the defendant, Goodson, was originally sentenced to prison, the trial judge told him that if his extended supervision (the period of community supervision following service of the initial term of confinement in prison) were ever revoked, he would get the maximum sentence. Goodson’s extended supervision was revoked. At the reconfinement hearing, the court – as promised – imposed the maximum reconfinement term available under the law. The judge explained to the defendant that this was appropriate “not because that’s the sentence I’m giving you today, [but] because that’s the agreement you and I had back at the time that you were sentenced” (¶ 5). The court reminded Goodson of its warning that “you would sentence yourself based upon your actions at the time you left prison. And if you became a law-abiding, good citizen, then you would never have been here but if you screwed up then you’d be given the maximum” (id.). 

The defendant filed a motion for postconviction relief, in which he contended that he had been deprived of the right to an impartial judge because the court prejudged the reconfinement sentence. The circuit court denied the motion.

In a decision authored by Judge Peterson, the court of appeals reversed. It began its analysis by recalling that the right to an impartial judge is fundamental to the American notion of due process, and that appellate courts presume a judge has acted fairly, impartially, and without bias; however, this presumption is rebuttable. When evaluating whether a defendant has rebutted the presumption of the trial court’s impartiality, the appellate court generally applies two tests, one subjective and one objective. In this case the defendant conceded that he cannot show that the trial court was subjectively biased. Therefore, the court of appeals only needed to determine whether the trial court was objectively biased (see¶ 8).

Objective bias can exist in two situations. The first is when there is the appearance of bias. The appearance of partiality constitutes objective bias “when a reasonable person could question the court’s impartiality based on the court’s statements” (¶ 9). The appellate court agreed with the defendant that a reasonable person would interpret the judge’s statements to mean he made up his mind before the reconfinement hearing (see ¶ 10). In this case “the [trial] court unequivocally promised to sentence Goodson to the maximum period of time if he violated his supervision rules. A reasonable person would conclude that a judge would intend to keep such a promise – that the judge had made up his mind about Goodson’s sentence before the reconfinement hearing. This appearance constitutes objective bias” (¶ 13). The appellate court further concluded that the judge’s statements at the reconfinement hearing (quoted above) constitute “definitive evidence of actual bias” as well (¶ 16).

The court of appeals concluded its opinion with the following observation: “A [trial] court may certainly tell a defendant what could happen if his or her extended supervision is revoked. But telling a defendant what will happen imperils the defendant’s due process right to an impartial judge at a reconfinement hearing. Our jurisprudence eschews the notion that a court may determine a sentence without scrutinizing individual circumstances” (¶ 17).

State v. Lee, 2009 WI App 96 (filed 4 June 2009) (ordered published 29 July 2009)

Milwaukee police officers went to the upper unit of a duplex to investigate complaints of drug dealing. The officers asked for and received permission from the lower-unit resident to enter a common hallway, which contained a stairway leading to the upper apartment. At the top of the stairs, the officers found the door to the apartment wide open. Within plain view of the doorway, on a small table located 10 feet or less from where they were standing, the officers observed two plastic baggies containing a substance they thought was marijuana, as well as a scale and a plate, both of which contained white residue the officers thought was cocaine, and a razor blade. A box of baggies was lying on the floor next to the table. No people were visible. The officers announced their presence but received no response.

The officers undertook a “protective sweep” of the unit in search of the apartment’s occupants and found additional evidence of drugs and drug trafficking. The search revealed that the residence was unoccupied. However, the officers found a driver’s license and Social Security card issued to Lee. Lee arrived at the residence a short time later and was arrested. A search of Lee revealed that he was in possession of narcotics, and he admitted to the officers that the marijuana, scale, and cocaine were his.

In the prosecution that followed, Lee moved to suppress the evidence seized from his apartment, arguing that the officers’ initial warrantless entry thereof was unlawful. The circuit court denied the motion, and the defendant pleaded guilty. This appeal followed. In a decision authored by Judge Bridge, the court of appeals affirmed.

An exception to the warrant requirement exists when the state can demonstrate both probable cause and exigent circumstances that overcome an individual’s right to be free from government interference (see ¶ 7). In this case, given the unobstructed view of the illegal drugs and related evidence that was available to the officers, the probable cause threshold was easily met (see ¶ 8).

As for the existence of exigent circumstances, the court noted the four well-recognized situations that have been held to authorize a police officer’s warrantless entry into a residence: “(1) hot pursuit of a suspect; (2) a threat to the safety of a suspect or others; (3) a risk that evidence will be destroyed; and (4) a likelihood that the suspect will flee” (¶ 9). In this case, the court concluded, “the officers … could reasonably believe that a delay in procuring a search warrant would gravely endanger life or risk the destruction of evidence and that the warrantless entry of Lee’s apartment for purposes of conducting a protective sweep was justified” (¶ 20).

The court explained that the facts as described above “would allow a reasonable police officer to believe that entry into Lee’s apartment in order to perform a protective sweep was necessary due to a potential threat to the officers’ safety. In light of the wide open door, the officers could reasonably believe that someone was likely inside. People do not customarily leave the front door to their residences open when they leave, especially when illegal narcotics are easily seen through the open door. The officers announced their presence and received no response. From this, the officers could reasonably believe that persons inside the apartment were aware that police officers were outside the open door, that controlled substances and other evidence of criminal activity were visible to the officers, that the occupants were the subject of police suspicion, and that a raid may be imminent. The officers could also reasonably believe that the occupants were, under these circumstances, nervous and agitated, and would take the steps necessary to evade apprehension. Further, the officers could reasonably believe that the occupants were connected with drug activity and may be dangerous. Felony drug investigations may frequently involve a threat of physical violence and the likelihood that evidence will be destroyed” (¶¶ 14-15).

State v. Schloegel, 2009 WI App 85 (filed 13 May 2009) (ordered published 30 June 2009)

Officials of a public high school were alerted by an anonymous informant that Schloegel, then a student, was in possession of drugs on school grounds. The police were contacted, and Schloegel was summoned to the school office. Schloegel consented to searches of his person and his book bag. No contraband was found in either place, nor was any contraband found in his locker.

An assistant principal asked Schloegel if he would mind if they looked in his car. At the beginning of the school year Schloegel had received a student handbook, which included a parking form containing a consent-to-search clause. For students to park in the school parking lot, they are required to give consent to school administrators to search the vehicle when the administrators have “reasonable suspicion to believe the search will produce evidence of a violation of a particular law, a school rule, or a condition that endangers the safety or health of the student driver or others.” The assistant principal informed Schloegel that it was school policy to proceed next to a search of the student’s vehicle. Schloegel accompanied the assistant principal and the police to the parking lot where Schloegel’s car was parked. Schloegel opened the vehicle at the assistant principal’s request. The assistant principal searched the car and found a container of marijuana, a pipe, Oxycontin, and cash, all of which she turned over to the police (see ¶ 3).

In the subsequent prosecution the defendant moved inter alia to suppress the items discovered during the search of his car. The circuit court denied the motion, and the defendant pleaded no contest to the charges. In a decision authored by Judge Snyder, the court of appeals affirmed.

With regard to the auto search issues in this case, the appellate court began its analysis with the seminal case involving searches on school grounds by public officials. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the U.S. Supreme Court held that a school search is legal when it satisfies a two-prong test: (1) the search must be “justified at its inception” and (2) “reasonably related in scope to the circumstances which justified the interference in the first place” (¶ 14). Although the Supreme Court did not define school grounds in T.L.O., “courts have upheld ‘a school’s substantial interest in maintaining discipline on school grounds,’ and [have] extended the minimal expectation of privacy in the classroom and lockers to the school parking lot. Courts have consistently supported the logical inference that school grounds include the school parking lot” (¶ 19) (citations omitted). As for the reasonableness of auto searches on school grounds, “[c]ourts have accepted a variety of scenarios as evidence of reasonableness; for example, a search is reasonable where a student is suspected of violating rules in the school parking lot, the student has received a student handbook regarding vehicle searches parked on school grounds, or when the student has consented to a car search as a condition to being allowed to park in the school parking lot” (¶ 20) (citations omitted).

In this case the court of appeals concluded that the search of the defendant’s vehicle by the assistant principal satisfied the two-prong test of T.L.O. and was therefore reasonable. “The search was justified at its inception because school officials were put on alert that Schloegel was in possession that day of drugs, including pills and possibly some other substances. School officials must act on such a tip…. Furthermore, Schloegel had a prior drug arrest on record, and [one of the police officers on the scene] knew him from that previous arrest. Therefore, the decision to investigate further and to search for contraband was reasonable at its inception” (¶ 21).  

The court also concluded that the search was reasonable in scope. “Students who decide to bring drugs to school have many places to stash them, and the stated purpose and clear goal of this search was to discover whether Schloegel had contraband at school. A school official has the responsibility to keep students safe on school grounds, and as we have indicated, this includes school parking lots. When searches of Schloegel’s person, backpack and locker were cleared, it was a reasonable next step for school officials to take the search to Schloegel’s car” (¶ 22).

State v. Bautista, 2009 WI App 100 (filed 17 June 2009) (ordered published 29 July 2009)

Bautista was arrested on Sept. 7, 2005, after delivering 20 ounces of cocaine to a federal undercover agent. On Sept. 12, the state charged him with delivering cocaine on two occasions, one on Aug. 13 and the other on Sept. 7. On Sept. 20, the U.S. Attorney filed federal charges based on the same two deliveries. As a result, the state dismissed its case. But on Nov. 21, the state charged Bautista with one count of conspiracy to deliver tetrahydrocannabinols (marijuana). The state alleged that this conspiracy ran from April 11, 1997 to Sept. 6, 2005, and that the first significant arrest in this conspiracy occurred in March 2005.

After the defendant was convicted in federal court for the two counts of delivering cocaine, he moved to dismiss the state charge on the ground that it was barred by Wis. Stat. section 961.45, because he had already been convicted of the same conduct in federal court. The circuit court denied the motion, and Bautista then pleaded guilty. Bautista appealed the state conviction, and the court of appeals, in a decision authored by Chief Judge Brown, affirmed.

Section 961.45 provides as follows: “If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.” In State v. Hansen, 2001 WI 53, 243 Wis. 2d 328, 627 N.W.2d 195, the supreme court considered the meaning of this statute. It rejected the state’s contention that, so long as the elements are different (the so-called Blockburger test), dual prosecutions may proceed. The Hanson court announced that successive prosecutions may not be pursued when the “conduct” is the same (see ¶ 1). In the present case the court of appeals held that when a defendant comes to a “fork in the road” and commits to a separate volitional act, it is different conduct and its prosecution is not subject to section 961.45 (¶ 1).

Applying these principles the court observed that defendant Bautista “sold cocaine on one date, August 13, 2005. [Although he again sold cocaine, on Sept. 7, 2005, this act was outside the time frame stated in the state complaint and thus would be no bar. See ¶ 14 n.3.] This act [on Aug. 13] resulted in a federal charge to which he [pleaded] guilty. The state charge had nothing to do with delivering cocaine on a certain date. Instead, it had everything to do with a different kind of drug – marijuana – and it alleged a conspiracy with others to sell this particular kind of drug between April 11, 1997, and September 6, 2005, a span of over eight years. Clearly this was different conduct involving different drugs, during a different time frame and with an underlying factual basis that consisted not of the act of delivery itself, but of the conspiracy to sell. The act of conspiring to sell marijuana over a long period of time is different in time, space and manner than one instance of delivering cocaine. Not only do the charges involve different types of acts, the acts are also different in nature – the defendant had sufficient time between the acts to again commit himself. The conduct involved different invasions of interests and different intentions making the defendant subject to multiple punishments. The state charge is therefore not the same conduct as that conduct resulting in the federal convictions by any stretch” (¶14).

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Employment Law

Techworks LLC v. Wille, 2009 WI App 101 (filed 31 March 2009) (ordered published 29 July 2009)

Techworks sued a former employee, Wille, and Redville, a competitor that hired Wille after his resignation, for violation of a noncompete agreement and other claims. The circuit court granted summary judgment to the defendants, ruling that the noncompete agreement was invalid.

The court of appeals affirmed in part and reversed in part in a majority opinion authored by Judge Fine. The opinion assesses the agreement’s validity in great detail in the context of summary judgment. First, the agreement was necessary for the employer’s protection. “Service providers like Techworks need to ensure that there is a reasonable period during which their engineers, who develop close business relationships with the customers they service, will not work for either a competitor or a customer, and Red Anvil’s use of noncompete agreements with its engineers is evidence of both industry practice and necessity – evidence that was not contradicted by any of the defendants’ summary-judgment materials” (¶ 9). Second, the time restriction (two years) was also reasonable, because it applied only to customers during the two years preceding the employee’s departure date and extended only two years after the departure date (see ¶ 10).

Third, the territorial restriction was also valid, as it left Wille free to compete with Techworks for the nearly 15,000 customers not covered by the agreement (see ¶ 11). Moreover, “the operative subsection of Wille’s noncompete agreement with Techworks also passes the muster of reasonableness because although it has no geographic limitation, the restricted list is substantially narrowed because it only forbids Wille from working for those customers whom Wille actually serviced during the two years before he left Techworks” (¶ 12). Finally, the agreement was not “harsh or oppressive” and violated no public policy (see ¶¶ 13-14).

The court also took up other, record-intensive, issues. It held that there were disputed issues of material fact regarding whether Wille violated the noncompete agreement; thus, summary judgment was not appropriate (see ¶ 23). The court upheld the grant of summary judgment on issues relating to Wille’s alleged breach of a duty of loyalty, an alleged “conspiracy” between Red Anvil and its employee regarding Techworks’ confidential business information as well as their alleged tortious interference with Techworks’ employees and customers.

Judge Brennan dissented on the ground that “Techworks has not met its burden of showing that the two-year, look-back provision applicable to former customers, who ceased doing business with Techworks, is reasonable as to time or that it is necessary to its business. And, because I conclude these provisions are indivisible from the whole non-compete agreement, I conclude that the agreement is invalid and unenforceable against Wille” (¶ 31).

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Family Law

Monroe County v. Luis R., 2009 WI App 109 (filed 29 June 2009) (ordered published 29 July 2009)

The court of appeals reversed an order terminating the parental rights of Luis R. in an opinion written by Judge Vergeront. The case presented three issues. First, the court held that “25 U.S.C. § 1912(f) applies even though the child has been placed outside the parental home before the [termination of parental rights] TPR proceeding is filed. Thus, in this case it applies even though Vaughn has been living with foster parents for several years” (¶ 2).

Second, 25 U.S.C. § 1912(f) requires testimony by a “qualified expert witness” with sufficient specialized knowledge to assess “the likelihood of serious emotional or physical damage” to the child if returned to his father (¶ 38).

Third, the court addressed the burden of proof required by the Indian Child Welfare Act (ICWA). “The trial court here instructed the jury that it must be convinced by clear and convincing evidence that the requirements of subsec. (d) were met. That is the burden of proof applied for finding grounds for termination of parental rights under Wisconsin law. See Wis. Stat. §§ 48.31, 48.424(2). Luis does not develop an argument that, if the ICWA does not mandate the beyond a reasonable doubt standard for the § 1912(d) showing in TPR cases, we should nonetheless apply that heightened standard. Accordingly, we conclude the circuit court properly instructed the jury on the burden of proof for special verdict questions 5 and 6, which incorporated the requirements of subsec. (d)” (¶ 51).

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Real Property

Hocking v. City of Dodgeville, 2009 WI App 108 (filed 4 June 2009) (ordered published 29 July 2009)

The Hockings bought a home in Dodgeville in 1978. In the early 1990s a developer built a nearby subdivision, which left the Hockings’ house at the bottom of a slope and subject to damage and erosion from water run-off. Over the years the Hockings had numerous conversations with Dodgeville city officials, who promised much but delivered nothing. In 2003 a city official declared the city would do nothing to stop the excessive water flow. The Hockings filed this suit in 2006. The circuit dismissed it based on the 10-year statute of repose contained in Wis. Stat. section 893.89(4).

The court of appeals affirmed in an opinion written by Judge Vergeront. “The Hockings concede that the date of the substantial completion of the improvement was more than ten years before the filing of their complaint and, thus, the action is barred unless the bar is inapplicable under either subsec.
(4)(b) or (c)” (¶ 8). The court held that subsection (4)(b) was not applicable despite the Hockings’ argument that city officials had “unofficially” promised to remedy the problem. Such promises were not, however, approved by the common council, as required by other statutes. “We conclude the only reasonable construction of Wis. Stat. § 893.89(4)(b) is that any express warranty or guarantee made by the City must be made in compliance with Wis. Stat. § 62.11(3) and (5). Because there is no dispute that did not occur, none of the statements made to Glen [Hocking] by city officials constitute an express warranty or guarantee by the City” (¶ 18).  

Nor did section 893.89(4)(c) provide relief. That subsection “addresses an owner’s or occupier’s conduct after the completion of the improvement, but only with respect to the ‘maintenance, operation or inspection of [the] improvement.’ Here we are concerned with ‘maintenance of [the] improvement.’ The applicable common meaning of ‘maintenance’ in this context is ‘the labor of keeping something (as buildings ) in a state of repair.’ [citation omitted] Because the Hockings assert that the City owns and occupies only the streets of the subdivision, to come within this subsection the City’s negligence must logically arise out of the maintenance of the streets within the subdivision. However, there is no factual submission showing that the City did or failed to do something with respect to keeping the subdivision streets in repair that caused water damage to their property” (¶ 23). The city’s failure to “alter the streets” did not fall within the common meaning of “maintain.” “The effect would be to impose on [cities] liability after the end of the exposure period based on their actions – and the actions of others – during involvement in improving the property. This is contrary to the purpose of the statute” (¶ 25).

[Editors’ Note: Another appeal arising out of this same fact situation was recently decided by the supreme court and is summarized in this month’s Supreme Court Digest. See Hocking v. City of Dodgeville, 2009 WI 70 (filed 9 July 2009).]

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Torts

Petzel v. Valley Orthopedics, 2009 WI App 106 (filed 23 June 2009) (ordered published 29 July 2009)

Petzel sued Wikenheiser for alleged malpractice arising out of her hip surgery, in which Wikenheiser was assisted by a physician’s assistant, Pearson. It was unclear how Petzel’s nerve was damaged during the surgery. The circuit court granted summary judgment to the defendants.

The court of appeals reversed in an opinion authored by Judge Hoover. The court held that there were disputed issues of fact regarding the issues of negligence, res ipsa loquitur, respondeat superior, and borrowed servant. As to the negligence claim, Petzel’s expert, Grear, provided adequate evidence of Wikenheiser’s alleged malpractice. “Grear did testify he initially believed the hip surgery itself was exemplary. Nonetheless, he subsequently concluded based on test results that the injury occurred at the knee rather than the sciatic nerve at the hip, and opined that the injury therefore constituted a deviation from an acceptable standard of medical care. Further, if a jury concluded the injury occurred at the knee, Hoeffel’s [the defendant’s expert] testimony that Pearson could not have applied the necessary pressure could reasonably support an inference that Wikenheiser did so” (¶ 9).

Adequate evidence also supported a res ipsa loquitur instruction, which “relieves Petzel of the burden of proving both how precisely her peroneal nerve was injured and which person caused her injury, making Wikenheiser jointly and severably liable” (¶ 13). “Both Pearson and Wikenheiser handled the leg during the surgery – either of them could have potentially damaged the peroneal nerve – and it was undisputed that the foot paralysis was caused during the operation. Yet, neither could postulate when or how such an injury might have occurred” (¶ 12). Although Petzel had not sued Pearson, Wikenheiser could have impleaded Pearson (see ¶ 14).

Moreover, there was sufficient evidence that Wikenheiser was vicariously liable for any negligence of Pearson. For purposes of respondeat superior, it was not determinative that Pearson was not Wikenheiser’s employee: “What matters is whether Pearson was acting under Wikenheiser’s supervision and control” (¶ 18). The latter conditions were supported by both Pearson’s testimony and the administrative code (see ¶ 20). Finally, sufficient evidence also supported a “borrowed servant” theory of vicarious liability.

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