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    Wisconsin Lawyer
    February 07, 2023

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Traffic Stops – Reasonable Suspicion

    State v. Richey, 2022 WI 106 (filed Dec. 9, 2022)

    HOLDING: A police officer lacked reasonable suspicion to stop the motorcycle that the defendant was driving.

    SUMMARY: Officer Alexis Meier was on patrol in the village of Weston at 10:50 p.m. on a Saturday in April when she heard a radio communication from a deputy sheriff to be on the lookout for a Harley-Davidson motorcycle driving erratically and speeding north on Alderson Street toward Schofield Avenue. No additional information about the motorcycle or its driver was broadcast.

    Five minutes later, Meier spotted a motorcycle driving east on Schofield Avenue a little more than one block west of the intersection with Alderson Street – about one-half mile from the reported location of the speeding Harley. Traffic was light at that time, and the officer had seen relatively few motorcycles around the time of the deputy’s report. Meier followed the Harley for several blocks but did not observe its driver commit any traffic violations. Suspecting that this was the Harley reported by the deputy sheriff, Meier stopped the vehicle and thereafter developed evidence that the driver (defendant Richey) was under the influence of intoxicants.

    In the subsequent prosecution for operating while intoxicated, the defendant moved to suppress that evidence, arguing that the stop violated the Fourth Amendment because it was not supported by reasonable suspicion. The circuit court denied the motion. In an unpublished decision, the court of appeals affirmed.

    In a majority opinion authored by Justice Dallet, the supreme court reversed the court of appeals. The supreme court concluded that, although it is a “close question,” the stop of the defendant was not supported by reasonable suspicion (¶ 11). The deputy sheriff’s generic description of a Harley-Davidson gave Meier very little to work with (see id.). She knew little about the Harley that the deputy had seen (nothing about the model, type, size, color, or license number) and she had no description about the driver.

    Though the Harley that Meier spotted was driving in the same general area as that reported by the deputy late in the evening and at a time of year when the officer said there were relatively few motorcycles on the road, it was proceeding in a direction toward the reported location of the erratic and speeding driver. To be in that position, the driver would have had to ride around the general area for several minutes and eventually loop back in the direction he came from while driving normally.

    Said the majority: “This unlikely sequence of events, when coupled with the deputy’s generic description of a Harley-Davidson headed north on Alderson Street, demonstrates that Officer Meier’s suspicions were not sufficiently particular to Richey” (¶ 13). In light of the totality of the circumstances, the majority concluded that Meier lacked reasonable suspicion to stop the defendant.

    Justice Roggensack filed a dissenting opinion that was joined in by Chief Justice Ziegler and Justice Hagedorn.


    Products Liability – Design Defects – Reasonable Alternative Design – Consumer-Contemplation Standard – Wis. Stat. § 895.047(1) – Restatement (3d) of Torts, § 2

    Murphy v. Columbus McKinnon Corp., 2022 WI 109 (filed Dec. 28, 2022)

    HOLDINGS: Claims for design defects governed by Wis. Stat. section 895.047(1) require proof of a safe, reasonable alternative design, as well as proof under the consumer-contemplation standard and compliance with the three factors set forth in the statute.

    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: A line technician for Wisconsin Power & Light was seriously injured when struck by a utility pole he was moving from the ground onto a truck using a truck-mounted boom. The plaintiff sued the boom’s manufacturer, Columbus McKinnon Corp. (CMC), alleging that its boom was unreasonably dangerous compared to other designs (see ¶¶ 4-12). The circuit court later granted summary judgment to CMC. In a published decision, the court of appeals reversed in part and affirmed in part. See 2021 WI App 61.

    The supreme court affirmed in a majority opinion authored by Justice Roggensack, which discusses Wis. Stat. section 895.047. The Wisconsin Legislature created this products liability statute in 2011, and the supreme court considered it for the first time in this case (see ¶ 25).

    The supreme court summarized its multiple holdings as follows: “(1) Wis. Stat. § 895.047(1)(a) requires proof of a more safe, reasonable alternative design the omission of which renders the product not reasonably safe; (2) proof that the consumer-contemplation standard as set out in § 895.047(1)(b) (for strict liability claims for a defective design) has been met; and (3) proof that the remaining three factors of a § 895.047(1) claim have been met. The statute’s plain language is clear in showing that the legislature codified the common law consumer-contemplation standard
    in § 895.047(1)(b)” (¶ 52).

    “We disagree with the court of appeals’ conclusion that the legislature discarded the consumer-contemplation test by incorporating the risk-utility balancing test. We also decline to adopt comment f [Restatement (Third) of Torts, § 2], upon which the court of appeals relied. With a clear understanding of the requirements that a plaintiff must establish, and considering the multiple genuine disputes of material fact, … we affirm the court of appeals in reversing summary judgment and remand to the circuit court for further proceedings” (id.).

    Although declining to adopt comment f, the court underscored that “the common law pre-2011 continues to provide persuasive authority in products liability cases” (¶ 41). The court addressed the interplay between pre-2011 common law and the creation of Wis. Stat. section 895.047 in 2011 (see ¶ 25). Although the legislature “appear[ed] to borrow language” from the Restatement, it did not adopt § 2 in its entirety much less enact the Restatement’s “voluminous comments” (¶ 28).

    Justice Karofsky filed a concurring opinion in which Justice A.W. Bradley and Justice Dallet joined. Justice Hagedorn filed an opinion concurring in part and dissenting in part, which was joined by Chief Justice Ziegler and Justice R.G. Bradley.

    » Cite this article: 96 Wis. Law. 54 (February 2023).

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