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    Wisconsin Lawyer
    June 01, 2015

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka

    Criminal Law

    Representations Capturing Nudity – Wis. Stat. section 942.09(2)(am)1. – Nonconsensual Taping of Act of Prostitution

    State v. Adams, 2015 WI App 34 (filed 11 March 2015) (ordered published 29 April 2015)

    HOLDING: Nonconsensual videotaping of a nude woman during an act of prostitution with the defendant violated Wis. Stat. section 942.09(2)(am)1.

    SUMMARY: Wisconsin Statutes section 942.09(2)(am)1. prohibits anyone from 1) video recording a person in the nude, 2) without that person’s knowledge or consent, 3) in circumstances in which the nude person has a reasonable expectation of privacy, and 4) when the defendant knew or had reason to know that the nude person did not know of and did not consent to the recording (see ¶ 4). Defendant Adams was convicted of violating this statute for surreptitiously videotaping a nude woman while she was engaging in sexual acts of prostitution with him. The woman did not consent to the recording.

    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.

    Adams argued that the woman did not have a reasonable expectation of privacy while nude in the hotel room with him because she was a prostitute and he was paying her to engage in sexual activity. In a decision authored by Judge Neubauer, the court of appeals affirmed. Said the court, “[t]hat Adams and the woman were engaged in the crime of prostitution does not mean that the woman relinquished her reasonable expectation of privacy under Wis. Stat. § 942.09(2)(am)1.” (¶ 5). “Permission to be viewed in the nude does not mean permission to be recorded in the nude,” and “permission to engage in sexual acts with someone does not mean permission to record that person in the nude” (id.).

    The court further rejected the defendant’s argument that he was justified in videotaping the woman without her consent because she was a prostitute and might, during their illegal sexual encounter, overdose on illegal drugs or accuse him of battery. “Recording someone nude in violation of § 942.09(2)(am)1. in order to protect against possible adverse scenarios is not a legitimate reason or defense. Furthermore, there is no evidence that Adams made the recording for the purpose of self-protection” (¶ 7).

    Evidence

    Experts – Hearsay and Confrontation

    State v. VanDyke, 2015 WI App 30 (filed 3 March 2015) (ordered published 29 April 2015)

    HOLDING: A conviction for reckless homicide by delivery of a controlled substance was reversed because of ineffective assistance of counsel, namely, defense counsel’s failure to object to a toxicology report on confrontation grounds.

    SUMMARY: The defendant was charged with a homicide for delivering cocaine to an individual who died as a result of using it. To prove the heroin caused the victim’s death, the state introduced testimony by the medical examiner, whose opinion hinged on a toxicology report prepared by a laboratory located in St. Louis. The prosecution, however, did not call as witnesses the author of the report or anyone from the St. Louis lab who analyzed the specimens. The state also did not present any chain-of-custody evidence aside from the medical examiner’s testimony that he sent the samples to the private lab and received results (see ¶ 8). The medical examiner did not sign the autopsy report until after receiving the toxicology report (see ¶ 9). Defense counsel did not object to the medical examiner’s opinion.

    In a decision authored by Judge Hoover, the court of appeals held that the toxicology report containing the victim’s blood and urine results was “testimonial” for confrontation purposes (an “official,” signed report bearing multiple time stamps that one might reasonably expect would be used at a later trial) (see ¶ 17). The toxicology report proved the victim’s “use” of the drugs delivered by the defendant and was the “conclusive basis” for the medical examiner’s opinion on the cause of death.

    “Yet, Van Dyke was afforded no opportunity to cross-examine anyone from the laboratory, much less someone involved in the testing or the person who signed off on the official report. This violated Van Dyke’s constitutional rights to confrontation. Further, because [the medical examiner] served as a mere conduit for the toxicology report and was unable to offer an independent cause-of-death opinion, the violation was prejudicial” (¶ 25).

    Finally, trial counsel’s failure to object on hearsay and confrontation grounds was ineffective assistance of counsel, lacking any sound strategic reason (see ¶ 27). In its analysis of the case law, the court sharply distinguished several other cases that raised similar issues but involved very different facts (e.g., State v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409).

    Insurance

    Automobiles – Coverage

    Cooper v. Rick’s Blacktop & Paving Co., 2015 WI App 32 (filed 19 March 2015) (ordered published 29 April 2015)

    HOLDING: An unlawfully parked unscheduled trailer was covered by the terms of a business auto policy but not a commercial general liability (CGL) policy.

    SUMMARY: The plaintiff, Cooper, was injured when his motorcycle struck a stationary trailer that was unlawfully parked on the side of a road. He sued the company that owned the trailer, the dump truck driver who parked it there, and the owner’s insurer, Grinnell, which had issued a business auto policy and a CGL policy to the owner. On the issue of insurance coverage, the circuit court granted summary judgment to Grinnell, finding that neither policy covered Cooper’s injuries.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Blanchard. Grinnell contended that because the trailer was not a listed “auto” on its business auto schedule, the trailer was not covered. This ignored, however, that a driver covered by the business auto policy had parked the trailer at the accident scene, thus creating an initial grant of coverage (see ¶ 10). The court rejected various counterarguments by Grinnell, including a “difficult to track” argument rooted in the “independent concurrent cause” rule (¶¶ 20, 21).

    The CGL policy, however, did not provide coverage. Its unambiguous provisions excluded “auto use” from coverage (see ¶ 26).

    Pollutants – Dispersal – Exclusions

    Advanced Waste Servs. Inc. v. United Milwaukee Scrap LLC, 2015 WI App 35 (filed 3 March 2015) (ordered published 29 April 2015)

    HOLDING: A “total pollution exclusion” in an insurance policy barred coverage for PCB contamination in wastewater.

    SUMMARY: A scrap yard contracted with Advanced Waste to remove “oily wastewater” from its facilities. Advanced Waste sued the scrap yard when it discovered that some of the wastewater contained PCBs, which contaminated Advanced Waste’s treatment facility. The scrap yard filed a claim with its insurer, Illinois National, which denied coverage. The scrap yard filed this third-party complaint against the insurer. The circuit court granted summary judgment in favor of the insurer based on the policy’s “total pollution exclusion.”

    The court of appeals affirmed in an opinion authored by Judge Curley. The scrap yard contended that the exclusion was inapplicable because there was no “pollutant” and no “dispersal” until after the wastewater left its possession; Advanced Waste had a duty to ensure the water was not contaminated (see ¶ 12). In rejecting this argument, the court relied on the plain language of the policy exclusion and on case law it found “informative” if not controlling. “[T]he policy does not require that the insured disperse the pollutant in order for the exclusion to apply”(¶ 13). Nor was the policy ambiguous (see ¶ 20).

    “Truth in Auto Law” – Policy Renewals

    Wolf v. American Family Mut. Ins. Co., 2015 WI App 36 (filed 4 March 2015) (ordered published 29 April 2015)

    HOLDING: The 2009 “Truth in Auto Law” did not apply to a policy that was renewed before the act’s effective date.

    SUMMARY: Wolf renewed her automobile insurance policy with American Family, which included underinsured motorist (UIM) coverage, before the effective date of the 2009 Truth in Auto Law (the act). She was seriously injured in an accident that occurred after the act’s effective date. After receiving the policy limits from the driver’s insurer, also American Family, she demanded the UIM coverage from her own policy.

    American Family denied coverage on grounds that Wolf was not underinsured and that the policy’s reducing clause would draw down her UIM coverage to zero regardless. Although the act’s terms affected both provisions, the insurer contended the act was inapplicable. The circuit court granted summary judgment in favor of American Family.

    The court of appeals affirmed in an opinion authored by Chief Judge Brown. The act was effective only from Nov. 1, 2009, until its repeal in November 2011. “During its brief lifespan, the law prohibited reducing clauses and created broader protections for underinsured motorist coverage. The law explicitly stated that it applied prospectively – only affecting insurance policies issued or renewed on or after the November 1, 2009 effective date” (¶ 6).

    Wolf relied on the policy’s “elasticity clause,” which mandates that any policy must conform to existing law. The court held, however, that the elasticity clause did not apply because Wolf’s policy was not affected by the act: “The elasticity clause was designed to automatically change a policy term in place on the policy’s effective date that conflicts with a law promulgated and made effective during the policy period. But we do not have that situation here. The changes in the law only applied to insurance policies entered into after November 1, 2009. This means that, prior to November 1, 2009, those changes did not yet exist. Plainly, policy terms could not be in conflict with a law whose very existence was dependent upon the date that the law became effective. So, prior to November 1, 2009, there was no law called the Truth in Auto Law. It did not exist as far as Wolf’s policy was concerned” (¶ 12).

    Simply put, the legislature decided to apply the act only to policies issued or renewed after Nov. 1, 2009.

    Real Property

    Governmental Takings – Just Compensation

    Somers USA LLC v. DOT, 2015 WI App 33 (filed 29 April 2015) (ordered published 29 April 2015)

    HOLDING: No dedication of property for a public use was effectuated when the “dedication” language on a certified survey map was the result of a scrivener’s error.

    SUMMARY: A scrivener’s error made by Somers USA marked certain property on a certified survey map (CSM) as a “dedication” rather than a “reservation” for a state highway project. [“The difference in terminology is significant in the context of condemnation and eminent domain law: a dedication requires a landowner’s donative intent to convey an interest in land for public use, whereas a reservation does not involve a conveyance but restricts use of the land for the purpose stated in the reservation” (¶ 1).]

    Later, the state built roads on the property without compensating Somers. The state argued that when a property owner mistakenly inserts the word “dedication” on a CSM rather than the intended word “reservation,” the state is free to take that property without payment of any compensation to the property owner. In a decision authored by Judge Reilly, the court of appeals disagreed.

    The state contended that Wis. Stat. section 236.29(1) supports its position that a recorded dedication is sufficient to convey interest in land for public use (see ¶ 10). However, for the state to rely on this statute to convey Somers’ property via the CSM, the property first must be properly dedicated in accordance with Wis. Stat. section 236.34(1m)(e), which, among other things, requires approval by the appropriate city council, village board, or town board.

    In this case, no governmental board involved in Somers’ development approved any road dedication or land grant for inclusion in the CSM (see ¶ 11). Moreover, “intent to dedicate to the public is an essential component of either [common law or statutory] dedication” (id.) (internal quotations and citation omitted). It was undisputed that Somers never intended to dedicate the property for public use.

    Said the court, “[s]etting aside that the ‘dedication’ in this case is invalid as a matter of law, a governmental body cannot rely upon a known, material mistake as a basis upon which to take private property without paying just compensation” (¶ 2). “As there was no legally valid dedication, the CSM did not convey Somers’ property to the State. Accordingly, the [circuit] court properly determined that the State owes compensation for taking Somers’ land. The State has not shown that it suffered detriment or that it was induced to reasonably rely on the CSM so as to deny compensation to Somers” (¶ 16).

    Torts

    Governmental Immunity – Ministerial Acts – Known and Compelling Dangers

    Oden v. City of Milwaukee, 2015 WI App 29 (filed 3 March 2015) (ordered published 29 April 2015)

    HOLDING: The circuit court erred in dismissing the plaintiff’s complaint against the city of Milwaukee on the basis of governmental immunity.

    SUMMARY: Milwaukee police officers and firefighters responded to multiple calls reporting an odor of natural gas in the 2400 block of North 10th Street. Responders confirmed a strong odor of natural gas on the block and a “gas leak from the street which is bubbling now”
    (¶ 3). We Energies (the natural gas utility) was notified but the homes on the block were not evacuated. Within an hour, the plaintiff’s home on the block exploded with her and her child inside; both sustained severe injuries. After the explosion, an evacuation was ordered.

    The plaintiff sued the city of Milwaukee, We Energies, and their insurance companies. As to her allegations against the city, she claimed that the city police officers and firefighters who responded to the scene negligently failed to evacuate the homes on the street, including her residence. The city moved for summary judgment, arguing that it was immune from liability pursuant to Wis. Stat. section 893.80(4) because neither Milwaukee police officers nor firefighters had a “ministerial duty” to evacuate the homes on the block. The circuit court granted the motion. In a decision authored by Judge Kessler, the court of appeals reversed.

    Wisconsin Statutes section 893.80(4) immunizes governmental subdivisions and agencies and their officers, officials, agents, and employees against liability for legislative, quasi-legislative, judicial, and quasi-judicial acts, which have been collectively interpreted to include any act that involves the exercise of discretion and judgment (see ¶ 12). However, there is no immunity against liability associated with 1) the performance of ministerial duties imposed by law, and 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees (id.).

    As for the performance of ministerial duties imposed by law, the appellate court focused on the Milwaukee Fire Department (MFD) and the fact that the MFD relied on We Energies to train all MFD personnel about the proper response to natural gas leaks. The training included the provision of a first-responder handbook addressing the handling of natural gas leaks; the handbook is the only written protocol describing how city employees are to handle natural gas emergencies and “it was effectively adopted by the City when it delegated specialized training authority to We Energies” (¶ 15). Among other things, the handbook calls for keeping people and vehicles away from the hazard area; “Do not allow anyone to enter or remain in buildings where natural gas is present” (¶ 8).

    Said the court, “[t]he MFD had a ministerial duty based on the City action delegating to We Energies both MFD emergency response training and performance requirements in the First Responder Handbook. Consequently, the City has no immunity” (¶ 16). “The undisputed facts establish that there was a gas leak in the street of a residential block causing bubbling water at 2:30 a.m. in the winter – a time when most residents were probably sleeping. It is undisputed that the nature of the gas leak created a serious danger. A jury could conclude that responding members of the MFD were negligent if they failed to follow the ministerial duties described above” (¶ 17).

    The appellate court further concluded that the first responders were confronted with a known and compelling danger that imposed a ministerial duty on the city to act. Whether the city was negligent in the manner in which it performed its ministerial duty is a question for the jury (see ¶ 19).




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