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    Wisconsin Lawyer
    July 01, 2013

    Court of Appeals Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online.

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

    Criminal Procedure

    Interrogation – Custody – Private-Safety Exception to the Miranda Rule

    State v. Uhlenburg, 2013 WI App 59 (filed 3 April 2013) (ordered published 29 May 2013)

    Holding: Certain statements made by the defendant should have been suppressed because he was in custody and was interrogated after he invoked his Miranda right to counsel. Other statements were admissible under the “private-safety” exception to the Miranda rule.

    The principal issue in this case was whether statements the defendant, Uhlenburg, made after invoking his Miranda right to counsel should have been suppressed. Whether Miranda applied depended on whether Uhlenburg was “in custody” at the time of the questioning. The police were investigating a complaint against Uhlenburg that involved sexual assault of a child. Investigators went to the defendant’s home to ask him “to come down to the police department for questioning.” He was not given the option of driving himself but instead was handcuffed and transported in the back of a squad car.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    At the police department, an officer took the defendant into the secure booking area and seated him in a locked interview room, where they removed the handcuffs. The defendant waited in the locked interview room for 10 to 15 minutes until a detective arrived to interview him. When he asked to get a drink of water, the detective unlocked the door with his electronic key, escorted him to the drinking fountain, and then brought him back to the locked room in the secure area. The detective told the defendant that he was not under arrest and then advised him of his Miranda rights.

    On these facts, the court of appeals, in a decision authored by Chief Judge Brown, concluded that the defendant was “in custody” for Miranda purposes. “Whether a suspect is in ‘custody’ depends upon whether, under the totality of the circumstances, a reasonable person would have felt that he or she was free to end the interview and leave the police department. If the suspect has been placed under formal arrest, we need not examine any other factors, because formal arrest always equals ‘custody.’ In the absence of a formal arrest, however, we must consider all of the relevant circumstances, including the purpose of the interrogation, where it takes place, whether the suspect is free to leave, and the degree and nature of any restraint” (¶ 10) (citations omitted).

    The court concluded that “no reasonable person in [the defendant’s] circumstances – taken from home to the police department in handcuffs in a squad car, escorted into the booking area in handcuffs, placed in a locked interview room with little information about the reasons for the interview or when it might start, having a police escort in and out of the locked room to get water or use the toilet – would have felt free to end the questioning and leave the interview” (¶ 13). Thus, the court concluded, the defendant was in custody for Miranda purposes, and the statements he made while subjected to custodial interrogation after invoking his Miranda right to counsel should have been suppressed.

    Shortly after this interrogation ended, the defendant was left alone in the interview room. An officer watching him on a monitor saw him removing his shoelaces. The officer rushed to the room and found him holding one of the laces as if he were going to strangle himself with it. The officer asked the defendant what he was doing with the shoelaces, and he replied that he wanted to kill himself and he asked the officer to shoot him.

    The appellate court concluded that these statements were admissible: they were not the product of custodial interrogation but fell within the private-safety exception to the Miranda rule. “This exception provides that if questioning occurs during an emergency involving the possibility of saving human life, and rescue is the primary motive of the questioner, then no violation of Miranda has occurred” (¶ 15).

    The court declined to limit the private-safety exception to circumstances involving the risk of harm to third persons. “[W]e agree with the numerous jurisdictions holding that there is no legitimate reason not to apply the ‘private safety’ exception to situations in which the defendant is at risk of harm. The interest in preserving the defendant’s life is a pressing human interest, one that ‘outweighs the need for the prophylactic’ Miranda rule” (¶ 16) (citations omitted).

    Sentencing – Expunction Decision Must Be Made at Sentencing

    State v. Matasek, 2013 WI App 63 (filed 30 April 2013) (ordered published 29 May 2013)

    Holding: A court order for expunction of a criminal conviction under Wis. Stat. section 973.015 must be made at the time of sentencing.

    This appeal involved the proper interpretation of Wis. Stat. section 973.015, which grants circuit courts discretion to order that certain criminal convictions be expunged after an offender successfully completes his or her sentence. Subject to certain exceptions not relevant to this case, the statute provides that “when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.”

    The defendant argued that section 973.015 allows a court to defer making a decision on expunction until after the defendant has successfully completed his or her sentence. The state disagreed, contending that under the statute’s plain language, the expunction decision must be made at the time of sentencing.

    In a decision authored by Reserve Judge Cane, the court of appeals agreed with the state. Said the court, “the statute plainly and unambiguously directs courts to exercise their discretion in ordering expunction ‘at the time of sentencing’” (¶ 9).

    Automobiles – Trunk Search

    State v. Jackson, 2013 WI App 66 (filed 9 April 2013) (ordered published 29 May 2013)

    Holding: A search of an individual’s vehicle trunk was lawful because a police officer observed incriminating evidence in the car’s passenger area.

    Police officers stopped Jackson’s car for a traffic violation. An officer testified that while he was standing outside the car’s open window, he smelled “fresh marijuana.” When the officer looked inside the car, he saw a digital scale, marijuana residue, and a large amount of cash within the center console. After a search of the back seat yielded nothing, the officer searched the trunk, where he found drug-related items. The circuit court granted Jackson’s motion to suppress the evidence from the trunk search.

    The court of appeals reversed in an opinion authored by Judge Brennan. The court put aside the issue of whether the odor justified the search. Rather, the court held, the search of the passenger area (the center console) provided probable cause for officers to open and search the trunk (see ¶ 7).

    “[T]he police were permitted to search the trunk because the evidence uncovered in the passenger compartment – the marijuana residue, the scale, and the large amount of cash in small denominations – gave them probable cause to believe that Jackson was selling drugs out of his car. As such, the police were permitted to search every part of the vehicle and its contents, including the trunk, that may conceal the object of the search, in this case, evidence of drug dealing” (¶ 10) (internal quotations omitted).

    Rape-Shield Law – Prior Consensual Sex

    State v. Sarfraz, 2013 WI App 57 (9 April 2013) (ordered published 29 May 2013)

    Holding: Evidence of prior consensual sexual contact between the defendant and the victim was admissible under an exception to the rape-shield law.

    A jury convicted Sarfraz of the sexual assault of an acquaintance, N., who testified that the defendant, while wearing a mask and armed with a knife, forcibly entered her residence. Sarfraz contended that he and N. had an ongoing, consensual sexual relationship and that the sexual contact that day was also consensual. N. denied that the two had a prior sexual relationship. The trial judge excluded testimony about certain prior sexual contact pursuant to the rape-shield law. See Wis. Stat. § 972.11. Essentially the judge found that prior consensual sexual contact was not relevant to a charge alleging forcible sexual intercourse.

    The court of appeals reversed the conviction, in an opinion written by Judge Curley, on grounds that the earlier alleged conduct fell within an exception to the rape-shield law. The exception has three prongs. The first prong requires sufficient proof that the prior consensual sex acts occurred. This was satisfied (see ¶ 23).

    Second, the prior contacts must be relevant to the charged offense. “The pretrial ruling kept the jury from learning the scope and extent of the prior relationship, and appears to have created the impression that the relationship involved only the most modest form of intimacy. The trial court essentially held that for evidence of the past sexual conduct between Sarfraz and [N.] to be admissible, it must be of the same type and nature that is charged as a crime. Neither the language of Wis. Stat. § 972.11(2)(b), nor relevant case law, require that the prior sexual conduct between the accuser and the accused be the same as that alleged in a criminal case” (¶¶ 25-26). 

    “Accepting Sarfraz’s allegations of the prior sexual relationship as true, the facts alleged could lead a reasonable trier of fact to conclude that [N.] allowed Sarfraz to enter her apartment knowing that it was him and consented to sexual contact, including sexual intercourse, on the day in question. The trial court’s contrary conclusion as to materiality was based on an erroneous interpretation of the law” (¶ 28).

    Third, the probative value of this evidence was not outweighed by countervailing factors. The prior-sexual-contact evidence was the “missing piece” that allowed “the jury to question the credibility of [N.’s] denials and allegations” (¶ 29).

    Judge Brennan dissented, on grounds that the jury heard sufficient evidence regarding the “prior romantic relationship,” and that the circuit court only excluded specific evidence of sexual gratification between the defendant and N.

    Employment Law

    Public-Safety Employees – Health-Care Coverage

    Milwaukee Police Ass’n v. City of Milwaukee, 2013 WI App 70 (filed 16 April 2013) (ordered published 29 May 2013)

    Holding: A statute’s clear language precluded a union of “public safety employees” from bargaining over certain aspects of their health-care coverage.

    The Milwaukee Police Association (the association), a union, received an injunction and a writ of mandamus that compelled the city of Milwaukee to comply with terms of a labor agreement, “specifically, to not modify the Agreement’s ‘specific deductibles, co-pays, prescriptions costs’” (¶ 1). Underlying the suit was 2011 Wisconsin Act 32 and its effect on public employee’s health-care coverage.

    The court of appeals reversed in an opinion authored by Judge Fine. Act 32 created statutes that prohibited bargaining by public safety employees in several respects, one related to the “design and selection of health care coverage plans” and the other to the effect of the design and selection of the plan on wages, hours, and conditions (see ¶ 7). The association contended that it was nevertheless “free to bargain over how the ‘design and select’ components affect[] its members’ finances, even though the statute specifically forbids bargaining over ‘the impact of the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee’” (¶ 8).

    The court rejected the contention because it contravened the “clear language” of the statute and the association’s concession that the city could act “unilaterally” in the design and selection component (see ¶ 9).

    Counties – Power of Counties to Reduce Elected Officials’ Fringe Benefits During Their Terms of Office

    Cramer v. Eau Claire Cnty., 2013 WI App 67 (filed 16 April 2013) (ordered published 29 May 2013)

    Holding: Section 59.22(1)(a)1. of the Wisconsin Statutes permits a county to alter elected officials’ fringe benefits during their terms of office.

    This case arose, in part, from changes Eau Claire County made in response to state legislation requiring local-government employees to pay the employee share of contributions to their Wisconsin Retirement System (WRS) accounts. Sheriff Cramer and County Treasurer Lokken (hereinafter Cramer) objected to the county’s deduction of contributions for their retirement accounts, as well as increased contributions for health insurance premiums.

    Cramer sued, alleging the county violated Wis. Stat. section 59.22(1)(a)1. by altering his paycheck deductions for fringe benefits during his term of office. Following a hearing on competing summary-judgment motions, the circuit court agreed that the county violated the statute. The county appealed. In a decision authored by Judge Hoover, the court of appeals reversed.

    Section 59.22(1)(a)1. prohibits counties from altering elected officials’ “compensation” during a term of office (see ¶ 1). The issue before the court of appeals was whether this statute permits the county to alter elected officials’ fringe benefits during their terms of office. Cramer argued that the term compensation must be construed to include fringe benefits. The appellate court disagreed.

    “[W]e conclude that Wis. Stat. § 9.22(1)(a)1.’s prohibition against increasing or diminishing certain elected county officials’ compensation during the term of office does not preclude adjustments to fringe benefits. Rather, the statute expressly protects only salaries and fees. We agree with Cramer that the statute has laudable purposes, primarily, preventing the influence of partisan bias or personal feeling by members of the county board in fixing the salary. However, if, in view of modern day employment inducements, fringe benefits such as insurance premiums, pension fund contributions and perhaps others are to be included in the compensation protection afforded to certain county elected officials, the legislature, as a matter of desirable public policy, can so provide. The court cannot” (¶ 21) (internal citations and quotations omitted).

    Health-Care-Worker Whistleblower Statute – Application Limited to Employees

    Masri v. Wisconsin Labor & Indus. Rev., 2013 WI App 62 (filed 2 April 2013) (ordered published 29 May 2013)

    Holding: An uncompensated intern was not an employee and thus not protected under Wisconsin’s health-care-worker protection statute.

    Appellant Masri, a doctoral candidate at U.W.-Milwaukee, began an unpaid internship in August 2008 with the Medical College of Wisconsin (MCW). Her official title was “Psychologist Intern,” and she was assigned to the transplant surgery unit at Froedtert Hospital. Masri worked 40 hours per week and was provided with office space, support staff, free parking, full access to facilities and patient records, and professional networking opportunities. Her supervisor promised to provide her with health insurance coverage and the ability to pursue grants, although Masri received neither before her termination.

    In November 2008, Masri met with an MCW official to report alleged medical-ethics violations she asserts that she observed during her internship. Masri’s internship with the MCW was terminated soon thereafter. Masri later filed a retaliation complaint with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development, alleging that her termination violated Wis. Stat. section 146.997, the state’s health-care-worker protection statute.

    An ERD officer issued a preliminary determination and order, dismissing Masri’s complaint on grounds that the ERD did not have jurisdiction under section 146.997 because Masri was not an employee protected under the statute. An administrative law judge (ALJ) affirmed the preliminary determination and order. Masri then filed a timely petition for review with the Labor and Industry Review Commission (LIRC). LIRC affirmed the ALJ’s decision. The circuit court affirmed LIRC’s decision.

    Applying a due-weight-deference standard of review, the court of appeals, in a majority opinion written by Judge Brennan, affirmed LIRC’s decision that the statute only protects employees, on grounds that LIRC’s conclusion is consistent with the statute’s plain language and that Masri did not show that her interpretation of the statute is more reasonable than LIRC’s (see ¶ 25).

    The court also affirmed LIRC’s conclusion that Masri was not an “employee” under the statute. Although Wis. Stat. section 146.997 does not define the term, in other statutory schemes in which the term employee has been left undefined or ambiguous by the legislature, courts have determined that some sort of compensation is essential to an employee/employer relationship (see ¶ 27).

    “LIRC accepted Masri’s argument that she could be considered an employee even without receiving any salary provided she received a tangible benefit from her internship. But LIRC concluded Masri received no tangible benefit. As such, LIRC’s conclusion is reasonable. Furthermore, we agree with LIRC’s conclusion. Office support that simply enabled Masri to perform her duties cannot be considered an independent tangible benefit and the concept of ‘networking opportunities’ is not tangible and is too vague to be compensation. The promise of health insurance, which was never delivered, cannot be viewed as a benefit, especially because Masri continued to perform her internship without it. And the promise to apply for research grant funding did not convey any tangible benefit to Masri because receipt of funding was totally out of MCW’s control. Because Masri has not shown that her conclusion that she was an employee is more reasonable than LIRC’s, we are compelled to affirm” (¶ 30).

    Judge Fine filed a dissenting opinion.


    Motive to Fabricate – Haseltine Rule

    State v. Echols, 2013 WI App 58 (filed 9 April 2013) (ordered published 29 May 2013)

    Holding: Reversible error occurred when the trial judge excluded proof of a juvenile victim’s school misconduct record that was relevant to her motive to fabricate; the court also erred by allowing a witness to testify that the defendant “always” stuttered when he was lying.

    Echols, a school-bus driver, was convicted of sexually assaulting a 15-year-old student while both were on the bus. Echols denied that he intentionally touched the student but acknowledged that inadvertent contact may have occurred when he confronted the student about her alleged misconduct (involving a snowball) on the bus. Because the student and the defendant were the only two people on the bus, their credibility was central to the case.

    The court of appeals reversed the conviction in an opinion written by Judge Curley. First, the trial judge erred by excluding evidence of the alleged victim’s school misconduct record. The defense contended that the alleged victim’s misconduct on the bus gave her a motive to fabricate because she faced expulsion in light of her past misdeeds. The court applied the familiar, three-step Sullivan test that governs other-acts evidence. See State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

    First, the alleged victim’s past misconduct was offered for a permissible purpose – an alleged motive to fabricate the crime. Second, the evidence was relevant to prove the motive: “the student knew she would very likely be expelled for throwing and/or threatening to throw a snowball, and that she was trying to point a finger at Echols’ alleged wrongdoing in order to divert attention from her own” (¶ 19).

    Third, the evidence’s probative value (concerning the alleged victim’s credibility) was not substantially outweighed by unfair prejudice and so on. Nor was the error harmless, given that its exclusion undermined the court’s confidence in the trial’s outcome (see ¶ 21). Finally, although the defense failed to comply with Wis. Stat. section 118.125(2) when it obtained the alleged victim’s school records, this did not warrant exclusion of evidence related to her prior misconduct. 

    A second error occurred when the circuit court allowed the defendant’s supervisor at the bus company to testify that the defendant always stuttered when he was lying (see ¶ 24). The supervisor’s testimony was unhelpful lay-opinion testimony and its introduction violated Wis. Stat. section 907.01. Introduction of the testimony also violated the Haseltine rule, which prohibits any witness, lay or expert, from testifying that another witness is lying or telling the truth. See State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (see ¶ 26). Nor was the error harmless because “Echols did in fact stutter” while testifying (¶ 27).


    Underinsured Motorist Coverage – “Use” of Car

    Jackson v. Wisconsin Cnty. Mut. Ins. Co., 2013 WI App 65 (filed 23 April 2013) (ordered published 29 May 2013)

    Holding: A deputy sheriff who was struck by a car while she was assisting the car’s driver to get back into traffic was “using” the automobile for purposes of the county’s underinsured motorist coverage.

    Jackson, a deputy sheriff, was injured while on duty (directing traffic at an airport). A motorist asked for help regarding directions. As Jackson, who was on foot, assisted the motorist in pulling back into traffic, the motorist’s car struck and injured her. Jackson sued the county’s insurer after it denied her claim for payment under the county’s underinsured motorist (UIM) coverage. The circuit court ruled that she had no UIM coverage because she was not “using” the car that struck her.

    The court of appeals reversed in an opinion authored by Judge Fine. The court noted that the policy contained the phrase “manipulating … and any other use,” which had not been defined by case law.

    “Broadly reading insurance policies does not, of course, mean that every injury that may have involved a car means ‘using’ that car in connection with that injury. Rather, the ‘inquiry is whether the vehicle’s connection with the activities which gave rise to the injuries is sufficient to bring those general activities, and the negligence connected therewith, within the risk for which the parties to the contract reasonably contemplated there would be coverage.’ … Here, Jackson was ‘using’ the underinsured-driver’s car because her injuries directly ‘flowed from’ and ‘grew out of’ her helping the driver safely re-enter traffic – a responsibility that was obviously within the scope of her employment” (¶ 10).

    The opinion also addresses case law and policy language that the insurer contended limited UIM coverage to a situation in which an insured, such as Jackson, was herself in a covered automobile when injured. The court reiterated that “Jackson was ‘using’ the underinsured car because … a deputy sheriff who helps a motorist safely re-enter traffic in an area she is patrolling is ‘using’ the car to avoid injury to the driver, other drivers in the traffic stream into which she was helping him merge, and pedestrians” (¶ 13).

    Mortgage Holder – Vacant Property

    Waterstone Bank v. American Family Mut. Ins. Co., 2013 WI App 60 (filed 24 April 2013) (ordered published 29 May 2013)

    Holding: A standard mortgageholder clause in an insurance policy did not provide coverage for a bank because the clause excluded loss or damage caused by various perils, including water damage, vandalism, and theft, if the vacancy continues for more than 60 days.

    A bank held a mortgage on two properties insured by American Family. The owner later filed a claim with the insurer based on damage, vandalism, and theft. The insurer reserved its right to deny coverage based on a vacancy provision. The bank, as mortgage holder, filed this lawsuit to recover under the policy’s mortgageholder clause. The circuit court denied the bank’s claim, ruling that it had no coverage because of the vacancy provision.

    The court of appeals affirmed in an opinion written by Judge Neubauer. Simply put, the loss was not covered (see ¶ 1). The court distinguished between a “simple” and a “standard” mortgageholder clause. The policy at issue used a standard clause, which “binds the mortgageholder to the same policy terms as the named insured, but ‘amounts to an independently enforceable contract which shall not be invalidated by any act or neglect of the mortgagor or owner either before or after the attachment or issuance of the mortgage clause’” (¶ 6).

    The parties agreed that the named insured (the owner) was not entitled to loss payment under the vacancy provision (see ¶ 7). “The standard mortgageholder provision protects the mortgageholder when the property owner’s act or failure to comply violates a policy obligation or prohibition. … Thus, rather than creating coverage for an excluded risk in the first instance, the mortgageholder clause operates to maintain coverage for the mortgageholder when the property owner’s acts violate a duty or obligation associated with the insurance contract resulting in violation of or invalidation of the policy” (¶ 8).

    A standard provision does “not create coverage where the risk was never assumed; the policy’s initial grant of coverage defines the mortgageholder’s potential recovery” (¶ 9). The noncoverage “exists by the terms of the vacancy provision and not by any breach or violation by the property owner. Vacancy is not prohibited by the policy. Quite the opposite: the vacancy provision specifically accounts for the possibility that the buildings might become vacant, but excludes loss or damage caused by various perils, including water damage, vandalism and theft, if the vacancy continues for more than sixty days” (¶ 10).

    Real Property

    Adverse Possession – Subjective Intent Generally Irrelevant

    Wilcox v. Estate of Hines, 2013 WI App 68 (filed 11 April 2013) (ordered published 29 May 2013)

    Holding: The parties’ subjective intent generally is irrelevant in claims of adverse possession.

    This appeal involved Richard and Susan Wilcoxes’ claim of title by adverse possession to a narrow strip of land separating their property from a lake. The issue before the courts was whether the lack of subjective intent on the part of the Wilcoxes’ predecessors in interest to claim title and the predecessors’ use of the property with the permission of a nonowner, along with other clear indications that the predecessors believed they were using the land with permission, defeat the Wilcoxes’ adverse-possession claim.

    The circuit court concluded that, regardless of the lack of involvement of the true owner, the fact that the predecessors asked for permission to use the property, and later affirmatively asserted to specified persons that the property was not theirs, showed that the predecessors did not have the “hostile intent” required for adverse possession. In a decision authored by Judge Lundsten, the court of appeals reversed.

    The appellate court began its analysis by highlighting what might appear to be an inconsistency in adverse-possession case law. Several cases broadly pronounce that the parties’ subjective intent is irrelevant. At the same time, and seemingly inconsistently, the adverse-possession statute, Wis. Stat. section 893.25(2)(a), requires “occupation under claim of title,” and several cases, at least superficially, indicate that subjective intent does matter (see ¶ 2). However, on close inspection, “it becomes apparent that these cases are not referring to actual subjective intent, but instead to the appearance that a possessor’s use would give to the true owner” (¶ 15).

    In the adverse-possession context, the term hostile refers “to a possessor’s actions, not a possessor’s belief” (¶ 16). “[T]he question is whether the use of the property by the possessor gives the appearance that the possessor claims exclusive right to the land” (¶ 20). “The sole exception we find to the exclusive focus on the appearance of the use is use with permission of the true owner. This exception makes sense because it is axiomatic that, when a true owner gives permission to a party to use property, subsequent use by the party would not give the appearance to the owner that the use is hostile to the owner’s rights” (¶ 21).

    The court did not hold that a possessor’s subjective intent is never relevant when it comes to adverse-possession claims. “Rather, we rely on the general rule that the subjective intent of the parties is irrelevant, and we discern no reason not to apply that rule here. Having rejected the titleholders’ assertion that the Wilcoxes needed to prove that [their predecessors] actually intended to occupy the lakefront strip exclusive of the rights of others, we discern no remaining issue in need of resolution. The titleholders acknowledge that ‘[t]here was no serious dispute at trial that the [predecessors] used the [lakefront] strip. They filled it, they seeded it, they mowed it, they lounged on it and they kept others off of it. [And the] Wilcoxes continued these practices.’ That is, we understand the titleholders to concede that, but for the factors we have already discussed, the requirements of adverse possession were satisfied” (¶¶ 23-24).


    Equine Immunity Statute – “Providing” a Horse

    Hellen v. Hellen, 2013 WI App 69 (filed 25 April 2013) (ordered published 29 May 2013)

    Holding: The equine immunity statute did not bar a claim relating to whether a reasonable effort was made to determine the plaintiff’s ability to engage safely in an equine activity.

    Ruth Hellen was injured as a result of contact with a horse named Whisper. The injury occurred while Ruth was holding Whisper’s lead rope and Ruth’s daughter-in-law, Rebecca, was preparing to ride Whisper (see ¶ 1). The circuit court granted summary judgment in favor of the defendants (Rebecca and the horse’s owner), ruling that the equine immunity statute, Wis. Stat. section 895.481, barred Ruth’s claims.

    The court of appeals reversed in an opinion written by Judge Blanchard. The court held that section 895.481 broadly immunizes persons for their participation in equine activities and that Rebecca clearly was engaged in the equine activity of riding Whisper at the time of the accident (see ¶ 18). Moreover, Ruth was injured “as the result of an inherent risk of equine activities” (¶ 20).

    The next issue was whether Rebecca “provided” an equine to Ruth, which is an element of one immunity exception. The court held that “Rebecca provided Whisper to Ruth by allowing Ruth to hold Whisper’s lead rope while Rebecca blanketed Whisper in preparation for riding. Stated in terms that match both the logic of the statutory language and [case law], Rebecca made Whisper available for Ruth’s use in participating in the equine activity of assisting Rebecca’s participation in riding Whisper” (¶ 29). A “transfer of full or partial control” is not dispositive for the immunity exception (¶ 31).

    “Given our conclusion that Rebecca provided Whisper to Ruth … the applicability of the exception in § 895.481(3)(b) turns on the question of whether Rebecca failed to make ‘a reasonable effort to determine the ability of [Ruth] to engage safely in an equine activity.’ The circuit court did not reach this question in its summary judgment decision…” (¶ 33). The court of appeals remanded the case.

    Liability Waivers – Indemnification

    Brooten v. Hickok Rehabilitation Servs., 2013 WI App 71 (filed 30 April 2013) (ordered published 29 May 2013)

    Holding: A fitness center’s waiver-of-liability form was void as against public policy because it was grossly overbroad in many ways.

    The plaintiff was injured while working out in a fitness center when a weight bench “failed.” The manufacturer asserted that the weight bench had been improperly assembled or maintained. The fitness center required every customer to sign a waiver-of-liability form as a condition of using the facility. The plaintiff sued the fitness center for claims sounding in negligence, safe place, and strict liability. The circuit court granted summary judgment to the fitness center, finding that the waiver was enforceable.

    The court of appeals reversed in an opinion written by Judge Hoover. The liability waiver was contrary to public policy and therefore void and unenforceable. First, it provided no opportunity to bargain (see ¶ 9). Second, it was “impermissibly broad and all-inclusive,” especially because it extended beyond negligence claims to those based on reckless or intentional conduct (¶ 10).

    More egregious, it also required patrons to both “defend and indemnify” the fitness centers from all claims arising out of recreational activities (see ¶ 12). Finally, it exceeded “the contemplation of the parties” because the defend-and-indemnify language was “buried in the middle of the form’s text” and worded in a misleading way (¶ 15).

    Wrongful Death – Non-Wisconsin Law

    Waranka v. Wadena Ins. Co., 2013 WI App 56 (filed 10 April 2013) (ordered published 29 May 2013)

    Holding: A wrongful-death claim brought under Michigan law was not subject to the limits on damages and beneficiaries that apply to Wisconsin wrongful-death claims.

    An individual died as the result of a snowmobile accident in Michigan. Four of the defendants named in the plaintiff’s wrongful-death action were Wisconsin residents. The plaintiff contended that Michigan wrongful-death law controls the action and that her damages should not be limited by Wisconsin law. The circuit court ruled that Michigan law controls the cause of action, subject to Wisconsin law on beneficiaries and damage caps.

    The court of appeals affirmed in part and reversed in part in an opinion written by Judge Neubauer. Wisconsin wrongful-death law is governed by Wis. Stat. sections 895.03 and 895.04, which must be construed in pari materia. Case law has “expressly rejected the argument that the two statutes can be applied independently” (¶ 9).

    Section 895.03 sets forth the cause of action while section 895.04 limits damages and beneficiaries. Because the plaintiff had no claim under section 895.03, the limits of section 895.04 did not apply in any way to her claim under Michigan law (see ¶ 12). Finally, Michigan law did not conflict with Wisconsin law, so there was no need to apply conflict-of-law principles (see ¶ 15).

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