Court of Appeals Digest
Vol. 79, No. 8, August
Court of Appeals Digest
This column summarizes selected
published opinions of the Wisconsin Court of Appeals. Prof. Daniel D.
Blinka and Prof. Thomas J. Hammer invite comments and questions about
the digests. They can be reached at the Marquette University Law School,
1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Claims Against Government - Service of
Disallowance of Claim - Service "On the Claimant" Required
Pool v. City of
Sheboygan, 2006 WI App 122 (filed 3 May 2006) (ordered
published 28 June 2006)
On May 25, 2004, Pool filed a notice of claim and claim against the
city of Sheboygan, alleging inverse condemnation without compensation.
On Sept. 8, 2004, the city sent a notice by certified mail to Pool,
disallowing Pool's claim and advising him of the six-month statute of
limitation for bringing a lawsuit on the claim. However, the city did
not check the box on the certified mail receipt indicating "restricted
delivery." On Sept. 9, 2004, Pool's adult daughter received the notice
of disallowance and signed the certified mail receipt of service.
On March 22, 2005, Pool filed a petition against the city for
ascertainment of compensation. The city moved to dismiss the petition
because it was untimely under Wis. Stat. section 893.80(1g), which
states in pertinent part, "no action on a claim under this section ...
may be brought after 6 months from the date of service of the notice of
disallowance." The circuit court granted the city's motion to dismiss.
It concluded that Pool had "actual notice" of the disallowance and that
this was sufficient to satisfy the requirements of section 893.80(1g)
and to trigger the six-month limitation period. In a majority decision
authored by Judge Brown, the court of appeals reversed.
Section 893.80(1g) explicitly states that the notice of disallowance
of a claim "shall be served on the claimant by registered or certified
mail." The appellate court concluded that the statute is plain on its
face. "[T]he notice of disallowance served on Pool's daughter is
insufficient to comply with the statute because she is not the claimant.
There is nothing unclear or open to interpretation in the statute's
language that the notice of disallowance must be served on the claimant"
(¶ 10). The court rejected the city's contention that actual notice
was sufficient for purposes of section 893.80(1g) (see ¶
Judge Snyder filed an opinion concurring in part and dissenting in
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Guilty Pleas - Advising Defendant Regarding Potential
State v. Sutton, 2006
WI App 118 (filed 17 May 2006) (ordered published 28 June 2006)
In the truth-in-sentencing (TIS) regime, a sentence to prison must be
bifurcated into two components, a term of initial confinement followed
by a term of extended supervision. In TIS terminology, the term of
initial confinement plus the term of extended supervision equals the
term of imprisonment.
In this case the defendant pleaded guilty or no contest (the opinion
does not specify whether guilty or no contest pleas were entered) to two
felonies. At the plea hearing the court advised him of the maximum term
of imprisonment for each crime. It did not, however, advise him of the
maximum term of initial confinement for each crime. The defendant moved
for postconviction relief, arguing that his pleas were not knowingly,
intelligently, and voluntarily entered because the judge did not advise
him of the maximum terms of initial confinement that he faced. The
circuit court denied the motion. In a decision authored by Judge Snyder,
the court of appeals affirmed.
The circuit court's duty when accepting a plea of guilty or no
contest is codified in Wis. Stat. section 971.08 and also is elucidated
in the supreme court's opinion in State v. Bangert, 131 Wis. 2d
246, 389 N.W.2d 12 (1986). The statute requires the circuit court to
determine that the defendant understands "the potential punishment if
convicted," and Bangert requires a court to "establish the
accused's understanding of ... the range of punishments" associated
with the crime charged. Said the court of appeals, "[t]he [circuit]
court here personally informed [the defendant] of the maximum term of
imprisonment under TIS, even though the maximum term of confinement was
not made explicit by the court. We hold that the circuit court has met
the standard articulated by our supreme court in Bangert and no
additional dissection of the potential punishment is required" (¶
Confessions - Valid Waiver
Backstrom, 2006 WI App 114 (filed 9 May 2006) (ordered
published 28 June 2006)
A jury convicted Backstrom of sexual assault of a child. On appeal
the defendant contended that the trial court improperly admitted an
incriminating statement that he made, while in custody, to a prosecutor
(Carroll). Although the prosecutor did not reread to the defendant the
Miranda warnings, the trial court found that a valid waiver the
defendant had given the day before carried over to this
The court of appeals, in a decision authored by Judge Wedemeyer,
affirmed. "Backstrom raises a single issue in this appeal: whether his
constitutional rights were violated when the prosecutor failed to
formally re-advise him of his Miranda rights before conducting
the interview in her office" (¶ 9). "The trial court's findings,
which are supported by the testimony from the Miranda-Goodchild
hearing, are not clearly erroneous. The record demonstrates that
Backstrom was properly advised of his Miranda rights during his
conversation with [Detective] Andritsos on July 13th and that he agreed
to waive those rights. He then was reminded of those rights the next
morning when he was brought into Carroll's office. Backstrom himself
admitted during his trial testimony that he remembered Carroll asking
him if he recalled Andritsos advising him of the Miranda
warnings, and that he said he did in fact recall being read his rights"
(¶ 11). Wisconsin case law does not require a rereading of the
Miranda warnings in a situation in which the totality of the
circumstances demonstrates that the suspect validly waived his rights
based on an earlier set of warnings and waiver.
Confrontation - Forgetful Witness
Rockette, 2006 WI App 103 (filed 31 May 2006) (ordered
published 28 June 2006)
Rockette was convicted of murder and other offenses. His principal
contention on appeal was that prior statements allegedly made by a key
prosecution witness, who claimed not to recall the statements, should
not have been used against him.
The court of appeals, in an opinion written by Judge Anderson,
affirmed. Rockette argued that the witness's asserted memory loss denied
Rockette the right to confront his accuser; in essence, "[the accuser]
could not be cross-examined on the veracity of the statements imputed
to, but not admitted by, him" (¶ 18). The court relied on two U.S.
Supreme Court decisions in which the Court held that the confrontation
right is satisfied when the person who allegedly made the statements
that the person now cannot recall is produced as a witness subject to
"Fensterer [Delaware v. Fensterer, 474 U.S. 15, 18
(1985)] and Owens [United States v. Owens, 484 U.S.
554, 556 (1988)]teach us that the key inquiry for Confrontation Clause
purposes is whether the declarant is present at trial for
cross-examination, takes the oath to testify truthfully and answers
questions asked of him or her by defense counsel. These cases also
plainly inform us that the Confrontation Clause does not guarantee that
the declarant's answers to those questions will not be tainted by
claimed memory loss, real or feigned" (¶ 24). The court of appeals
said that the Supreme Court's recent decision in Crawford v.
Washington, 541 U.S. 36 (2004), did not alter these earlier
The court also addressed and rejected three other claimed errors:
alleged improper vouching by the prosecutor; the exclusion of evidence
of lies told by the same witness; and the withholding of exculpatory
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Operator - Trucks - Unloading
Bauer v. Century Sur.
Co., 2006 WI App
113 (filed 2 May 2006) (ordered published 28 June 2006)
Bauer, a truck driver, delivered a turbine to a job site. While
assisting in unloading the turbine, Bauer was injured when a crane
operator, Johnston, struck a power line and thereby caused explosions
and an electrical surge. Bauer sued Johnston and Johnston's commercial
automobile and general liability insurance carrier on the theory that
Johnston was "operating" Bauer's truck by unloading it. The circuit
court granted summary judgment in favor of the insurer.
The court of appeals, in an opinion authored by Chief Judge Cane,
reversed. "It is undisputed that if Johnston was loading or unloading
the flatbed truck when the power line incident occurred, Great West must
provide insurance coverage to Johnston under the policy" (¶ 6).
Wisconsin has expressly adopted the "complete operation doctrine" under
which the "loading and unloading" is deemed to cover the "entire
process" (see ¶ 10). "Here, an examination of both Bauer's
and Johnston's actions reveals that the unloading process began when
Johnston raised the crane into the power lines. Bauer and Johnston took
several `preparatory' steps for unloading the turbine from the truck"
(¶ 13). The court distinguished other cases on the ground that
Johnston and Bauer were "actively taking steps to unload the turbine"
when the accident occurred.
Unidentified Vehicle - Hit-and-Run
DeHart v. Wisconsin
Mut. Ins. Co.,
2006 WI App 129 (filed 23 May 2006) (ordered published 28 June 2006)
The plaintiff argued that "the unidentified motor vehicle that struck
another vehicle and forced [the plaintiff's] vehicle off the road is an
`unidentified motor vehicle involved in a hit-and-run accident,'
pursuant to Wis. Stat. § 632.32(4)(a)2.b., and therefore the
statute mandates coverage" (¶ 1). The circuit court disagreed with
The court of appeals, in a decision written by Judge Peterson,
reversed in an opinion that grappled with whether coverage applied only
if the plaintiff's vehicle was itself struck by another vehicle. Other
decisions that the court examined required physical contact for a
"hit-and-run," but involved two-car accidents in which "any contact that
occurred would necessarily be between the insured vehicle and the
unidentified vehicle" (¶ 9). Other case law involved a collision
between an unidentified vehicle and another vehicle, which in turn
struck the insured vehicle (two collisions) (see ¶ 12).
Here the plaintiff alleged that the unidentified vehicle struck the
second vehicle, which in turn forced the plaintiff's vehicle off the
road - only one collision. Nonetheless, the court held that coverage was
sufficiently alleged. The physical contact with the second vehicle
furthered the public policy of protecting against fraud (see
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Motor Vehicle Law
OWI - Collateral Attack on Prior OWI Convictions
Hammill, 2006 WI App 128 (filed 2 May 2006) (ordered published
28 June 2006)
The defendant appealed a judgment convicting him of operating a motor
vehicle while under the influence of an intoxicant (OWI), fifth offense,
and an order denying his postconviction motion. Among other things he
argued that the circuit court should not have counted a village of
Cameron OWI conviction for penalty enhancement purposes because the
village did not have jurisdiction to convict him. In an opinion authored
by Judge Peterson, the court of appeals affirmed.
In the village of Cameron case, the defendant was arrested for
OWI-first offense on Jan. 1, 1991. On Jan. 28, 1991 he was arrested for
OWI in Eau Claire, which violation also was charged as a first offense.
He pleaded to both cases on the same day, with the Eau Claire conviction
occurring first. The defendant asserted that the village of Cameron
charge then became an OWI-second and that the Cameron municipal court
did not have subject matter jurisdiction over a second OWI offense
(which is criminal). Because the Cameron court lacked subject matter
jurisdiction, the defendant contended, the resulting conviction is a
nullity and cannot be counted for penalty enhancement purposes in the
The state responded that the defendant's challenge to the village of
Cameron conviction is barred by State v. Hahn, 2001 WI 118, 238
Wis. 2d 889, 618 N.W.2d 528."Hahn established `a bright-line
rule that applies to all cases' for attacking the validity of a prior
conviction during an enhanced sentence proceeding based on the prior
conviction" (¶ 16). Hahn held that "a circuit court may
not determine the validity of a prior conviction during an enhanced
sentence proceeding predicated on the prior conviction unless the
offender alleges that a violation of the constitutional right to a
lawyer occurred in the prior conviction. Instead, the offender may use
whatever means [are] available under state law to challenge the validity
of a prior conviction on other grounds in a forum other than the
enhanced sentence proceeding" (¶ 16) (citation omitted).
Because the defendant's challenge to the village of Cameron
conviction was not grounded on an alleged violation of his right to
counsel, the state argued that he could not collaterally attack the
village of Cameron conviction in the present case based on a lack of
subject matter jurisdiction. The defendant replied that Hahn
did not specifically address whether a void judgment could be used to
enhance a sentence. Said the appellate court, "[w]e disagree.
Hahnis a broad, bright-line rule. Since [the defendant's]
challenge to his Village of Cameron conviction is not based on the
denial of his right to counsel, the challenge is barred by
Hahn" (¶ 17).
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"Preoccupied Worker" Doctrine - Known Hazards
Bain v. Tielens Constr.
Inc., 2006 WI App
127 (filed 16 May 2006) (ordered published 28 June 2006)
The defendant, Tielens Construction, was the general contractor for a
new house. Its crew had constructed the house's frame, including a
stairwell, and, as was customary, installed a protective but temporary
railing over the stairwell. Subcontractors doing plaster and drywall
work removed the railing and failed to replace it when they finished
their work. When Bain arrived to paint the interior of the house, he
noticed the open stairwell and attempted to find materials on site to
make his own railing but, finding none, nevertheless began painting. As
he was painting, Bain would walk backward to stay out of the cloud of
paint particles produced by his sprayer. While painting the ceiling,
Bain stepped into the unprotected stairwell and fell, sustaining
Bain sued Tielens, alleging negligence, a safe place statute
violation, and other claims. (The drywall and plaster subcontractors
settled.) The circuit court granted summary judgment to the defendant.
It determined that Bain was more negligent than Tielens as a matter of
law for essentially two reasons. First, Bain had notice of the open
stairwell. Second, despite this notice, he nonetheless proceeded with
his painting (see ¶ 7). In a decision authored by Judge
Hoover, the court of appeals reversed.
With regard to Bain's knowledge of the open stairwell, the parties
disputed the applicability of the "preoccupied worker doctrine." As
described in Wis. Jury Instruction-Civil 1051, this doctrine states:
"Momentary diversion of attention or preoccupation of a worker in the
performance of work minimizes or reduces the degree of care that would
otherwise be required of him or her; nevertheless, a worker has the duty
to use the same degree of care for his or her safety that an ordinarily
prudent worker would use under such conditions (when preoccupied with
work) (when his or her attention was momentarily diverted by work)."
Said the court, "[t]his rule is grounded in public policy. It
recognizes that a worker who is necessarily in the location of a hazard,
and who necessarily must be absorbed in his or her work to efficiently
perform the job, `has only a limited ability to watch out for the
hazards, and a momentary preoccupation is not negligence if ordinary
prudent work[ers] under such conditions would have acted similarly.'
Walsh v. Wild Masonry Co., 72 Wis. 2d 447, 453-54, 241 N.W.2d
416 (1976)" (¶ 10).
In Walsh the supreme court observed: "Those cases in which
the court has approved of the diversion-of-attention instruction are
those in which the immediate hazard was unknown to one who was
preoccupied in his work." Walsh, 72 Wis. 2d at 454. Earlier
cases, however, acknowledge the possibility of being distracted from
even a known hazard.
Said the court, "[t]hese early cases can be harmonized with
Walsh, which also states: `Only in those cases where the
party is unaware of a particular and immediate danger because of his
preoccupation or diversion of attention is he exonerated from
exercising the usual care in recognizing the danger and avoiding it.'
Walsh, 72 Wis. 2d at 454 (emphasis added). That is, we can say
the preoccupied worker doctrine applies not only when the worker is
unaware because risk is unknown from the outset and preoccupation
prevents the risk's discovery, but also when the worker is unaware
because concentration on the task at hand has caused the worker to
forget a previously acknowledged hazard. Of course, this doctrine will
not always apply. There must be sufficient evidence from which the
fact-finder can infer the job caused a reasonable distraction"
The court concluded that, ultimately, this case contained too many
competing facts and inferences regarding which party was negligent and
to what extent. "It is more appropriately resolved by a jury, not
resolved on summary judgment" (¶ 20).
Battery - Self-Defense - Provocation
Root v. Saul,
2006 WI App 106 (filed 2 May 2006) (ordered published 28 June 2006)
This personal injury case arose out of a physical altercation between
people who were attending a football game party. Following a jury trial,
judgment was entered in favor of the defendant. On appeal the plaintiff
argued that he is entitled to a new trial in the interest of justice
because, among other things, the trial court denied his request to
instruct the jury on provocation as a bar to a self-defense theory.
In a decision authored by Judge Kessler, the court of appeals
reversed. It concluded that "the real controversy was not fully tried
because the jury was not instructed that the privilege of self-defense
may be lost where the person claiming the privilege was the initial
aggressor when that person had not taken action to withdraw from the
conflict and made that intent to withdraw known to the other
Once the court concluded that Wisconsin law provides that a civil
defendant may lose his or her right to claim self-defense if he or she
was the initial aggressor, the court had to decide whether the facts of
this case justified a jury instruction that incorporated this rule. The
trial court had found that the instruction was not applicable because
the defendant's conduct was not "of a type likely to provoke others to
The court of appeals held that this finding was clearly erroneous.
"[The plaintiff] testified that [the defendant] `smashed [him] in the
face with a fist.' Although [the defendant] characterized it
differently, he admitted that he slapped [the plaintiff] in the face.
Intentionally slapping or hitting someone in the face - acts that can be
a battery - is certainly conduct that can provoke others to attack.
Under these facts, a jury could find that [the defendant] was the
initial physical aggressor. An instruction indicating that self-defense
may not be available to [the defendant] should have been given" (¶
Tenants - Safe Place
Raymaker v. American
Family Mut. Ins.,
2006 WI App 117 (filed 2 May 2006) (ordered published 28 June 2006)
A tenant, Raymaker, was injured in a fall from a broken attic ladder.
Raymaker then sued Thomson, his former landlord. The court granted
summary judgment dismissing Raymaker's various claims after determining
that: "Raymaker could not meet the burden of proof on negligence;
Wisconsin Stat. ch. 704 does not establish a private cause of action for
its breach; Thomson had no notice of any defects and Raymaker therefore
would be unable to meet his burden of proof on forseeability, a
prerequisite to contract damages; and the lease did not allow for tort
damages in the event of its breach" (¶ 9).
The court of appeals, in an opinion written by Judge Hoover,
affirmed. The court held that the safe place statute did not apply
because Raymaker did not live in a "public building" to which the
statute applies (see ¶ 13). The landlord-tenant code (Wis.
Stat. ch. 704) also provided no basis for a claim on any of three
different theories. First, the landlord had no notice of the ladder's
defect, as required by section 704.07(2)(a)3. Second, section 704.07's
legislative history provided no support for the argument that a
statutory violation was negligence per se (see ¶ 22).
Third, section 704.07(4) "provides the tenant with the remedy of rent
abatement if the landlord fails to fulfill his repair duties and to the
extent the tenant is deprived of use of the premises, but § 704.07
does not provide a private cause of action" (¶ 32).
Finally, the court ruled that the lease itself provided no basis for
a contract claim because the record did not demonstrate that the damage
was foreseeable. "On this stipulated record, we conclude Raymaker's
injuries are not the natural and probable results of Thomson's failure
to improve the ladder. Given that Thomson had no prior problems, that
Raymaker's expert could not determine if a visual inspection would have
indicated any needed repairs, and that Raymaker examined the ladder and
nonetheless used it instead of asking for repairs, the record
establishes conclusively that it was simply unforeseeable that the
ladder would collapse and cause injury"(¶ 34).
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