|
|
Navigation |
Vol. 72, No. 7, July 1999 |
Previous
Page
1998 Significant Court Decisions
GAL Immunity
Paige K.B. v. Molepske4 held that there was an absolute
privilege for a guardian ad litem (GAL) in child custody cases.
The GAL was appointed to represent the best interests of three
children during divorce and custody proceedings. During those
proceedings, it was alleged that the father had sexually abused
the children. Three psychologists were appointed to examine the
children. The GAL petitioned the court for psychological testing
based upon allegations by both parents of alcoholism, drug abuse,
and abuse of the children. The GAL recommended that the court
give custody of the children to their mother. Notwithstanding
that recommendation, the court awarded the parents joint custody,
granting the father primary physical placement. In doing so,
the court found the testimony of one psychologist, who found
no evidence of sexual abuse, more credible than the testimony
of another psychologist, who thought there probably had been
abuse.
After
the divorce, the children were placed in a foster home under
a CHIPS petition alleging that the father had sexually abused
them. He was formally charged and convicted of sexually assaulting
the children. The court then transferred physical custody to
the mother. The children claimed that the GAL was negligent.
Wisconsin courts have recognized an absolute quasi-judicial immunity
for those persons who perform functions that are intimately related
to the judicial process. This immunity has been applied previously
to witnesses, appointed pathologists, and a court-appointed psychologist.
Wisconsin courts apply a functional analysis to determine whether
such absolute immunity attaches to a particular defendant. Immunity
is justified and defined by the functions it protects and serves,
not by the person to whom it attaches. A GAL appointed by a circuit
court to represent a child's best interests is a nonjudicial
officer who performs acts intimately related to the judicial
process. The GAL essentially functions as an agent or arm of
the court, charged with the same standard that must ultimately
govern the court's decision - that is, the best interests
of the child.
Plaintiffs argued that unless GALs are held civilly liable,
there will be no effective remedy available to the parties injured
by negligent acts and omissions of GALs. In rejecting this argument,
the court reasoned that GALs must be allowed to independently
consider the facts of the case and advocate the child's
best interests free from the threat of harassment or retaliatory
litigation. Should immunity not be provided, there likely would
be a decline in the number of attorneys willing to serve as GALs
in child custody proceedings. In addition, fear of liability
could warp the judgment of those GALs who are appointed toward
appeasement of disappointed parents or children and away from
protecting the child's best interests.
Economic Loss Doctrine
In Daanen & Janssen Inc. v. Cedarapids Inc.5 the
court extended the economic loss doctrine to protect a manufacturer
who was not in privity with the end user of a product. Cedarapids
manufactured a component part to rock crushers called a "pit
man." It manufactured and sold new crushing equipment and
spare parts to distributors that then resell the products to
quarry owners.
Daanen, a quarry owner, purchased from one of the distributors
a pit man that failed. In the Distributor Agreement, Cedarapids
provided a standard express warranty providing that it applied
to the distributor's customers. Daanen was unaware of this
warranty, and the distributor did not pass the warranty to Daanen.
In addition, Daanen did not request or receive from the distributor
a warranty on the replacement pit man. The invoice from the distributor
stated that the distributor disclaimed all warranty and liability.
After Daanen installed the replacement part in two of its crushers,
the machines began to break down. These breakdowns eventually
were attributed to manufacture and design problems in the pit
man. Daanen claimed that Cedarapids was negligent and sold a
defective product that caused more than $400,000 in damages.
There was no allegation that the defective pit man caused personal
injury or damage to property other than to the pit man itself.
The economic loss doctrine is a judicially created doctrine
providing that a commercial purchaser of a product cannot recover
from a manufacturer under tort theories of negligence or strict
products liability where the damages are solely "economic"
in nature. Application of economic loss doctrine to tort actions
between commercial parties is based on three policies, none of
which is affected by the presence or absence of privity between
the parties:
- to maintain the fundamental distinction between tort and
contract law;
- to protect commercial parties' freedom to allocate economic
risk by contract; and
- to encourage the party best suited to assess the risk of
economic loss, the commercial purchaser, to assume, allocate,
or insure against that risk.
If, as here, only economic losses are caused to a commercial
party, the policy arguments for imposing tort liability are considerably
diminished. A manufacturer in a commercial relationship has no
duty under either negligence or strict liability theories to
prevent a product from injuring itself. Contract law is better
suited for enforcing duties in the commercial arena because it
permits the parties to specify the terms of their bargain and
to protect themselves from commercial risk. The absence of privity
of contract does not alter this conclusion.
The economic loss doctrine serves to protect commercial parties'
freedom to contract. In situations where commercial parties have
allocated their respective risks through contract, the economic
loss doctrine teaches it is more appropriate to enforce that
bargain than to allow an end run around the bargain through tort
law. If manufacturers are held liable to remote commercial purchasers
under tort theories for frustrated economic expectations, all
manufacturers would effectively be prevented from negotiating
their liability through the bargaining process. Commercial parties,
presumably of equal bargaining power, are generally free to set
the terms of their own agreement, including warranties, disclaimers,
and limitations of remedies. Subject to requirements of good
faith and unconscionability, a manufacturer can negotiate with
its distributors and purchasers to disclaim or limit liability
for economic losses.
When Daanen purchased the pit man from the distributor, it
could have requested an express warranty that could have been
enforced in a suit for breach of warranty. Daanen chose not to
or failed to do so. The court assumed that the lack of a seller's
or manufacturer's warranty was reflected in the purchase
price. If Daanen were permitted to bypass its agreement and recover
the economic losses in tort, the net effect would be to render
the contract between Daanen and its distributor and the contract
between Cedarapids and its distributor nullities, emasculating
the law of contracts in the process.
|
Daniel W. Hildebrand is a member of DeWitt, Ross &
Stevens S.C., Madison. He is a former president of the Dane County
Bar Association and of the State Bar of Wisconsin. |
Resisting Unlawful Arrest
In State v. Hobson6 the court abolished prospectively
the common law right to forcibly resist an unlawful arrest. The
circuit court had previously determined that Beloit police officers
lacked probable cause to arrest the mother of a 5-year-old boy
after she refused to allow the officers to speak to her son about
a stolen bicycle. When the officers decided to arrest the mother
for obstruction, the mother resisted and struck one of the officers.
This resulted in her arrest for an additional charge of battery
to a police officer. On appeal, the state sought to abrogate
the privilege to resist an unlawful arrest and to reverse the
order dismissing the battery charge.
As early as the 17th Century, English common law recognized
the right to forcibly resist an unlawful arrest. This right was
based on recognition that action by an official exceeding lawful
authority constituted a trespass and a provocation and could
be resisted by physical force. Wisconsin courts, while mentioning
the right to forcibly resist an unlawful arrest, have not had
the opportunity to apply it to circumstances presented in this
case.
The court concluded that public policy is best served by abrogating
the common law privilege to use physical force to resist an unlawful
arrest rather than continuing to recognize it. Case law in other
states demonstrates a trend toward abrogation of this right.
Legal and societal circumstances have changed dramatically since
the inception of that right. In its early development, physical
resistance was the only effective response to the problem of
unlawful arrest. In those years, private citizens made most arrests,
bail for felonies usually was unattainable, and years might pass
before royal judges arrived for a jail delivery. Jail conditions
were such that a prisoner had an excellent chance of dying of
disease before trial. The common law right to forcibly resist
unlawful arrest developed out of necessity in response to those
circumstances.
Not only is forcible resistance now a substantially less effective
response to an unlawful arrest, there are many safeguards and
opportunities for redress. Individuals no longer languish for
years in disease-ridden jails. Bail is available. Individuals
are not detained indefinitely on dubious charges. Prompt arraignment
and determination of probable cause are mandated. Violent self-help
is anti-social and unacceptably dangerous. In the absence of
unreasonable force, there should be no right to forcibly resist
an unlawful arrest. When persons resist arrest, they endanger
themselves, the arresting officers, and bystanders.
Chief Justice Abrahamson, concurring, argued that the privilege
should be retained. Two justices would admit a very narrow exception
to abrogation, allowing resistance if the individual reasonably
believed that serious and substantial mental or physical health
concerns of the individual or a member of his or her family are
threatened in a way not susceptible of later cure in the courtroom.
Endnotes
1 Jackson v. Benson,
218 Wis. 2d 835, 578 N.W.2d 602 (1998).
2 Flynn v. Dep't of Admin.,
216 Wis. 2d 521, 576 N.W.2d 245 (1998).
3 Gorton v. Hostak, Henzl &
Bichler S.C., 217 Wis. 2d 493, 577 N.W.2d 617 (1998).
4 Paige K.B. v. Molepske,
219 Wis. 2d 418, 580 N.W.2d 289 (1998).
5 Daanen & Janssen Inv.
v. Cedarapids Inc., 216 Wis. 2d 395, 573 N.W.2d 842 (1998).
6 State v. Hobson,
218 Wis. 2d 350, 577 N.W.2d 825 (1998).
|