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    Wisconsin Lawyer
    November 12, 2021

    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 & Thomas J. Hammer

    Criminal Procedure

    Traffic Stops – Duration – Ordinary Inquiries Incidental to Mission of Stops

    State v. Davis, 2021 WI App 65 (filed 19 Aug. 2021) (ordered published 29 Sept. 2021)

    HOLDING: Checking for bond conditions is not an ordinary inquiry incidental to the mission of a traffic stop.

    SUMMARY: A police officer stopped defendant Davis for an equipment violation at 7:40 p.m. As of 7:50 p.m., the officer did not have reasonable suspicion of anything other than traffic violations, but the officer had been informed by dispatch that Davis had a pending drug and weapons case in another county. At 7:50 p.m., the officer radioed dispatch and asked that another officer find out whether Davis was out on bond and whether there were any conditions on that bond; his inquiry about bond conditions was for the purpose of determining whether Davis was required to submit to random drug testing.

    At 8:02 p.m., the officer was informed that Davis’ bond conditions were not related to driving and did not permit random drug testing. Between 7:50 p.m. and 8:02 p.m., the officer took no action in furtherance of writing a citation for any traffic offense; body camera footage showed him sitting in his squad car doing nothing. At some point after 7:50 p.m., reasonable suspicion was developed that Davis was in possession of drugs, and after a canine unit arrived on the scene at 8:10 p.m. and alerted to the presence of drugs, officers searched Davis and found a large amount of cash and a bag containing methamphetamine.

    Davis was charged with possession with intent to deliver methamphetamine and felony bail jumping. The circuit court granted his motion to suppress the evidence found during the traffic stop, concluding that the police officer impermissibly prolonged the stop by asking dispatch to inquire into the conditions of Davis’ release on bond. In an opinion authored by Judge Graham, the court of appeals affirmed.

    In Rodriguez v. United States, 575 U.S. 348 (2015), the U.S. Supreme Court explained that a routine traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation (see ¶ 20). The Rodriguez Court further explained that, beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop.” Such inquiries, said the Court, “typically … involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance” (¶ 21) (quotation omitted).

    The issue before the court of appeals in this case was whether checking for bond conditions is an “ordinary inquiry,” as that term is used in Rodriguez. The court concluded that “checking for bond conditions is not an ordinary inquiry incidental to the mission of a traffic stop. Officers may check bond conditions while simultaneously performing other mission-related tasks, but they may not prolong a stop to inquire into a motorist’s bond conditions without reasonable suspicion that the motorist is violating a bond condition” (¶ 36) (citations omitted).


    Automobile Policies – Underinsured Motorist Coverage – Reducing Clause

    Acuity v. Estate of Shimeta, 2021 WI App 64 (filed 31 Aug. 2021) (ordered published 29 Sept. 2021)

    HOLDING: A reducing clause could not be used to deny additional underinsured motorist (UIM) coverage.

    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.

    SUMMARY: The defendant, Douglas Curley, lost control of his pickup truck, which crossed the median, went airborne, and landed on top of a Jeep, killing the driver (Shimeta) and severely injuring the passenger (Scherr). The combined damages exceeded $1 million. Based on Curley’s negligence, Curley’s insurer paid each plaintiff $250,000 on a policy that provided $250,000 liability limits “per person” and a $500,000 liability limit “per accident.” Shimeta was insured through Acuity. His policy carried UIM coverage of $500,000 for “Each Person” and $500,000 for “Each Accident.” The Acuity policy also contained a reducing clause. Acuity filed an action seeking a judgment declaring that Acuity owed no UIM benefits to the plaintiffs. The circuit court ruled in Acuity’s favor.

    The court of appeals reversed in an opinion authored by Judge Dugan. Surveying the various approaches to UIM coverage, the court held that “the reducing clause applies to reduce the per person limit of liability by ‘all sums’ paid and the reductions to the per person limit are made on an individual insured basis. Thus, we conclude that Acuity impermissibly aggregated the payments to the Estate and Scherr to eliminate UIM coverage” (¶ 16).

    “[B]ecause the reducing clause states that the limits of liability are reduced by sums paid for ‘the bodily injury’ and the definition of ‘bodily injury’ [is] phrased in terms of the injuries to one person, the expectation is that the limit of liability is reduced by the sum paid for one person’s injuries on an individual insured basis” (¶ 20).

    “In this case, this results in a reduction of the $500,000 Each Person limit of liability for each insured by the $250,000 payment made to that insured, with the result being that both the Estate and Scherr each have a total of $250,000 of coverage remaining on the per person limit of liability and each are entitled to additional payment under the policy” (¶ 21).

    Motor Vehicle Coverage – Sexual Assault – Uninsured Motorist Coverage

    1st Auto & Cas. Ins. Co. v. A.P., 2021 WI App 66 (filed 18 Aug. 2021) (ordered published 29 Sept. 2021)

    HOLDING: Automobile policies did not provide uninsured motorist (UM) coverage for injuries arising from a sexual assault in a vehicle.

    SUMMARY: Triebs, age 21, sexually assaulted a girl who was under the age of 16. The assault occurred while Triebs was giving the girl a ride in his pickup truck. Triebs admitted the assaults in a deposition. Both Triebs and the girl (through her parents) were covered by insurance policies that included UM coverage. The circuit court granted summary judgment in favor of both insurers, concluding their respective policies do not provide UM coverage because the girl’s injuries from the sexual assault did not arise out of the ownership, maintenance, or use of an uninsured motor vehicle.

    The court of appeals affirmed in an opinion authored by Judge Stark, which focused on the issue of UM coverage. The term “use” in the UM policy “means the use of a vehicle as such and does not include a use which is completely foreign to a vehicle’s inherent purpose” (¶ 13). It was not enough that the vehicle was the “physical situs of an injury” (¶ 14). All parties agreed that Triebs assaulted the girl in the truck’s cab and on its tailgate. A sexual assault, however, “is not closely related to a vehicle’s inherent nature as a means of transportation” (¶ 15).

    “Although [the girl] asserts that sexual activities in vehicles are commonplace, that does not mean that such activities are consistent with a vehicle’s inherent nature. Again, although ‘use’ of a vehicle need not involve the direct physical operation of the vehicle and ‘can range beyond ordinary transportation,’ it generally involves some activity that is ‘closely related’ to transportation” (¶ 23). The girl was a passenger in Triebs’ pickup truck, but her injuries “did not arise out of her transportation” (¶ 25).


    Strict Products Liability for Design Defect – Wis. Stat. Section 895.047(1) – Common-Law Negligent Design

    Murphy v. Columbus McKinnon Corp., 2021 WI App 61 (filed 8 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: The circuit court erroneously granted summary judgment to a product’s manufacturer on the plaintiff’s claims of strict products liability for design defect and common-law negligent design.

    SUMMARY: Plaintiff Murphy was a utility line technician who was injured while trying to load a wooden pole from the ground onto the bed of a trailer. Murphy lifted the pole using a set of metal tongs attached to the end of the winch line of a truck-mounted boom that he operated by remote control, but the pole fell and struck him. The tongs, made in the so-called Dixie design and resembling old-fashioned tongs used to carry ice blocks and having one tooth on each side, were manufactured by Columbus McKinnon Corp. (CMC).

    In this lawsuit, Murphy made a claim of strict products liability for a design defect based on Wis. Stat. section 895.047(1) and also a claim of common-law negligent design. Murphy’s theory on both claims was that CMC used a defective design in manufacturing the tongs. The circuit court granted summary judgment in favor of CMC on both claims, and Murphy appealed. In an opinion authored by Judge Blanchard, the court of appeals affirmed in part and reversed in part.

    Murphy brought the strict-products-liability design-defect claim against the product manufacturer under Wis. Stat. section 895.047; this is distinct from a claim of either a manufacturing defect or an inadequate warning (see ¶ 20). Section 895.047 was created as part of 2011 Wis. Act 2, and this case represents the first appellate court interpretation of the statute (see ¶ 21).

    According to the court, in Act 2 the Wisconsin Legislature made two primary choices that are pertinent to this case: “First, it adopted the risk-utility balancing test from the Restatement (Third) [of Torts] to determine whether a plaintiff has established a product design defect, which explicitly requires consideration of ‘foreseeable risks of harm’ and ‘a reasonable alternative design.’ See Wis. Stat. § 895.047(1)(a). Second, it retained the ‘unreasonably dangerous’ test from the Restatement (Second) [of Torts] to determine whether a plaintiff has established unreasonable dangerousness. See § 895.047(1)(b)” (¶ 27).

    More specifically, with regard to the risk-utility balancing test of Wis. Stat. section 895.047(1)(a), “plaintiffs must prove ‘the foreseeable risks of harm’ that ‘could have been reduced or avoided by the adoption of a reasonable alternative design,’ the omission of which ‘renders the product not reasonably safe’” (¶ 30). With respect to the unreasonably dangerous test, Wis. Stat. section 895.047(1)(b) “requires a plaintiff to show that ‘the defective condition rendered the product unreasonably dangerous to persons or property’” (¶ 34).

    The court concluded that the legislature intended to create in Wis. Stat. section 895.047(1)(b) an “unreasonably dangerous” standard for plaintiffs to meet, additional to the requirement contained in Wis. Stat. section 895.047(1)(a) of proving the product to be defective by design (¶ 36).

    Applying these statutory provisions and based on the summary-judgment materials, the appellate court held that on the strict-products-liability claim, there are genuine issues of material fact to be resolved by a jury. Said the court: “we conclude that CMC fails to show that there is insufficient evidence to reasonably support the following possible findings: that CMC’s design of the tongs was defective because the foreseeable risks of harm they posed could have been reduced by CMC’s adoption of a reasonable, alternative tongs design; that CMC’s omission of the alternative tong design rendered its tong design not reasonably safe; that the defective tong design rendered them unreasonably dangerous to persons or property; and that the defective design was a substantial factor in causing Murphy’s injuries” (¶ 2).

    With respect to the plaintiff’s claim of common-law negligent design, the court also held that there are genuine issues of material fact to be resolved by a jury: “we conclude that CMC fails to show that the evidence submitted on summary judgment is insufficient to reasonably support a finding that CMC’s alleged negligence exceeded Murphy’s alleged negligence” (id.).

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