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Vol. 72, No. 10, October
1999 |
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Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
| Administrative Law
| Civil Procedure | Commercial
Law |
| Criminal Law | Criminal
Procedure |
| Employment Law | Family
Law | Lemon Law |
| Motor Vehicle Law | Sexually
Violent Persons | Torts |
| Worker's Compensation |
Lemon Law
"Comparable New Motor Vehicle" - Alternative
Remedies
Dussault v. Chrysler
Corp., No. 98-0744 (filed 7 July 1999) (ordered published
17 Aug. 1999)
This decision, written by Judge Snyder, involved two "novel"
issues under Wisconsin's lemon law. First, the court of
appeals held that the phrase "comparable motor vehicle"
under section
218.015(2)(b) of the Wisconsin Statutes is ambiguous. Since
the lemon law's purpose is to restore the consumer to the
position she or he was in at the time of purchase, the court
held that a manufacturer could replace a "nonconforming
demonstrator vehicle" with a "late-model demonstrator
with comparable features."
The second issue concerned the consumer's right to pursue
an alternative remedy under section
218.015(2)(a) of the Wisconsin Statutes. The court held that
a para. (2)(a) remedy is available only where the consumer is
unable to establish a "reasonable attempt to repair"
the vehicle. Since the plaintiff had established a "reasonable
attempt to repair," she was left with her remedies under
para. (2)(b). (The court also addressed several other issues
that are case-specific and raise no "novel" issues
of law.)
Visible Defects - Accepting Delivery
Dieter v. Chrysler
Corp., No. 98-0958 (filed 21 July 1999) (ordered published
17 Aug. 1999)
The plaintiffs purchased a truck that was scratched when some
accessories were installed. They complained about the scratches
and at first refused delivery until the dealership promised to
repair them. When the attempted repairs failed to satisfy them,
the plaintiffs demanded that the truck be repurchased based on
the scratched paint job and other problems. The trial court granted
summary judgment to Chrysler.
The court of appeals, in an opinion written by Judge Brown,
affirmed. At the outset, the court ruled that Chrysler was "dead
wrong" when it argued that "Chrysler is not liable
for the dealer's negligent installation of after-market
accessories." There was, however, a more critical issue:
"Is the Lemon Law applicable when the consumer is aware
of vehicle paint defects before the actual delivery of the vehicle?"
The court held that the lemon law is not applicable because it
"covers defects the consumer became aware of subsequent
to delivery." Here the consumers had the opportunity to
refuse delivery and pursue a refund of their deposit. Although
the statute nowhere mentions consumer awareness of defects, "the
whole point of the Lemon Law is to protect consumers from hidden
defects in their new vehicles." The court was unpersuaded
that its holding would create a "public policy nightmare"
in which manufacturers gutted the lemon law by providing notice
of all defects, large and small. In this case, the consumers'
remedy is with the dealer who promised to fix the scratches.
Motor Vehicle Law
OWI Forfeiture Action - Mandatory Court Appearance -
Timeliness of Jury Demand
City of Fond du Lac
v. Kaehne, No. 98-3619 (filed 7 July 1999) (ordered published
17 Aug. 1999)
Wis. Stat. section
66.12(1)(b) provides that "a court appearance is required
for a violation of a local ordinance in conformity with the [state
OWI statute]." In this case the defendant claimed that because
he pled not guilty to the city OWI charge by mail, and because
this procedure is contrary to the statute quoted above, his not
guilty plea was improperly entered and the 10-day period in which
to request a jury trial had therefore not yet begun to run.
In a decision authored by Judge Brown, the court of appeals
held that, while it is true that a court appearance is necessary
under the statute, a court appearance in a civil action may be
made by letter. Since this is a civil case, the defendant's
not guilty plea by letter to the court constituted an appearance
and his 10 days for demanding a jury trial commenced running
when the court received the letter. Accordingly, his letter requesting
a jury trial filed after that 10-day period was untimely.
Hit-and-Run - Premises Held Open to the Public -
Circuit Court Administration Fee
State v. Carter,
No. 98-1688-CR (filed 30 June 1999) (ordered published 21 July
1999)
The defendant was convicted of hit-and-run involving death,
contrary to Wis. Stat. section
346.67(1). This statute applies "upon all premises held
out to the public for use of their motor vehicles." See
Wis. Stat. §
346.66. The accident in this case occurred on the lot of
a closed gas station, and the question before the court was whether
these were premises held out for public use such that the hit-and-run
statute could be enforced there.
The court of appeals concluded that there was sufficient evidence
that the property in question was held out for public use. The
gas station is bordered by two city streets and abuts an alley
in the rear. As such, it is easily accessed by the public. Although
there were "no parking" signs on the premises, there
were not any signs prohibiting trespassing or passing through
the lot. Nor had the owner taken steps, such as fencing, to keep
the public off the property. Nor was there evidence that the
owner had ever towed any vehicle from the property. In addition,
the owner had posted a "for sale" sign on the premises,
making it reasonable to infer that the public was welcomed or
invited to enter the premises and inspect the property. The court
concluded that there was sufficient evidence indicating that
any resident of the community with a driver's license and
access to a motor vehicle could use the parking lot.
Another issue on appeal was whether the circuit court properly
imposed a court administration fee under section
814.60(1). This statute provides that, in a criminal action,
the clerk of circuit court shall collect a fee of $20 for all
necessary filing, entering, or recording, to be paid by the defendant
when judgment is entered against him or her. The issue was whether
the statute allows for the imposition of a $20 fee on a per count
basis or whether, as the defendant argued, the clerk may impose
only a single $20 fee even if the case involves multiple counts.
The court of appeals concluded that the purpose of the statute
is to compensate the clerk of court for the administrative costs
associated with processing a criminal action. Because each charged
count requires filing, entering, and recording - separate
and distinct from other counts charged - the proper interpretation
of section
814.60(1) permits a separate $20 fee for each count in the
case.
Sexually Violent Persons
Chapter 980 Commitment Proceedings -
Competency of Respondent to Proceed
State v. Smith,
No. 99-0477 (filed 30 July 1999) (ordered published 17 Aug. 1999)
The issue before the court of appeals in this case was whether
a person who is incompetent to proceed may be tried in a Wis.
Stat. chapter 980 proceeding. Chapter
980 is Wisconsin's sex predator statute. The state argued
that, although trying an incompetent for a crime violates the
Fourteenth Amendment's due process clause, chapter 980 is
a civil proceeding in the nature of a civil commitment and the
right not to be tried if incompetent has never been extended
to prohibit involuntary commitments. The state also alleged that
the Legislature never intended to extend the right to be competent
at trial to a chapter 980 respondent.
In a decision authored by Judge Hoover, the court of appeals
concluded that a chapter 980 respondent must be competent in
order to be tried. Section
980.05(1m) provides that all constitutional rights available
to a defendant in a criminal proceeding are available to the
chapter 980 respondent. By this provision, concluded the court,
the Legislature has extended the competency right to chapter
980 respondents.
The court further concluded that there must be a process to
afford the competency right to chapter 980 respondents. Wis.
Stat. section
971.14 sets forth in detail the procedures for circuit courts
to follow when there is reason to doubt a criminal defendant's
competency to proceed at trial, conviction, or sentencing. The
court of appeals held that a circuit court shall adapt section
971.14 to the extent practicable when competency issues arise
in chapter 980 proceedings.
Torts
Medical Malpractice - Legal Guardians - Loss of
Society and Companionship
Conant v. Physicians
Plus Medical Group Inc., No. 98-3285 (filed 1 July 1999)
(ordered published 17 Aug. 1999)
Timothy, a minor, suffered severe brain damage from dehydration
caused by repeated vomiting. The complaint alleged that the vomiting
was due to negligent medical care and treatment. Timothy's
legal guardians, his grandparents, sued the alleged tortfeasors
for their loss of society and companionship as well as for certain
costs incurred and lost income. The circuit court dismissed the
grandparents' claims.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. "Neither Wisconsin courts nor the Legislature
... has permitted recovery for loss of society and companionship
by those outside the nuclear family." Nor did the grandparents'
status as legal guardians change this result. The court explored
the differences between the legal guardians' duty to the
ward and the parents' duty toward their child. Simply put,
they are not equivalent. (The opinion sets forth the distinctions.)
As to the claims for lost income and other costs, the court
observed that the issue was not whether the legal guardians could
recover such damages, but whether they could sue in their own
names. No authority supported such an independent claim. Thus,
the grandparents/legal guardians could "not maintain an
action in their own names to recover their expenses in providing
care and transportation for Timothy following his injuries."
Timothy could, however, recover those expenses from the defendants,
including the value of medical and nursing services, and the
recovery "may not be reduced by the fact that the services
were gratuitously paid for or provided by a collateral source."
Recreational Immunity - No "Good Samaritan"
Exception
Schultz v. Grinnel
Mutual Reinsurance Corp., No. 98-3466 (filed 22 July
1999) (ordered published 17 Aug. 1999)
While attending the county fair, Michael Schultz stopped to
get a drink of water when he saw a "1,100-pound steer running
through the fairgrounds." Schultz was injured while attempting
to capture the animal. He later sued the operator of the fair,
and others, for negligence. The trial court granted summary judgment
dismissing the fair's operator under the recreational immunity
statute, section
895.52 of the Wisconsin Statutes.
The court of appeals, in an opinion written by Judge Dykman,
affirmed. Schultz was clearly engaged in recreational activity
(attendance at a fair) when he was hurt. The case is most noteworthy,
however, for the court's rejection of a "good samaritan"
exception that would permit "rescuers" to recover for
their injuries. Schultz's arguments exceeded the court's
error-correcting function and necessitated a statutory amendment.
Exculpatory Contracts - Negligence - Recklessness
-
Loss of Consortium
Werdehoff v. General
Star Indemnity Co., No. 98-1932 (filed 21 July 1999)
(ordered published 17 Aug. 1999)
The plaintiffs were injured while racing motorcycles at the
Road America racetrack. Along with their wives, the injured racers
alleged that the defendants were negligent and had violated the
safe place statute, section
101.11 of the Wisconsin Statutes. The complaint also alleged
reckless behavior and intentional disregard of the plaintiffs'
rights. The trial court dismissed the complaint based on exculpatory
contracts signed before the race.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed in an opinion that reached three issues. First, the
exculpatory contracts validly released the defendants from liability
for ordinary negligence, including the safe place claim. The
court carefully compared the language in the Road America release
to similar language addressed in recent case law governing exculpatory
contracts. The contract was clear as to its "terms"
and "application." One could reasonably assume that
negligent maintenance of the track fell within its sweep. Second,
under prior case law the exculpatory contract could not release
the defendants from liability sounding in recklessness. "[O]ne
fair reading of the evidence is that the defendants allowed the
race to go on with knowledge that the dangerous condition [on
the track] still existed." Since the plaintiffs raised disputed
issues of fact about whether the defendants behaved recklessly,
the case was remanded for trial. Finally, prior case law clearly
established that the spouses' claims for loss of consortium
could not be defeated by the exculpatory contracts.
Worker's Compensation
Occupational Disease - Date of Injury - Medical
Expenses
Incurred Before Date of Injury
United Wisconsin
Ins. Co. v. Labor and Industry Review Commission, No.
97-3776 (filed 20 July 1999) (ordered published 17 Aug. 1999)
The employee filed a hearing application with the Labor and
Industry Review Commission (LIRC) alleging that she sustained
an occupational disease, carpal tunnel syndrome, arising out
of her employment. She claimed compensation for lost wages and
payment for medical expenses. She alleged that her date of injury
was March 25, 1994, the date she first experienced carpal tunnel
syndrome symptoms.
Following a hearing, the administrative law judge (ALJ) concluded
that the employee sustained occupational carpal tunnel syndrome
and that her date of injury was Aug. 2, 1994, the first day she
lost time from work due to her medical condition. The ALJ also
found that the compensation carrier was liable for compensation
and medical expenses, including those expenses incurred prior
to Aug. 2, 1994. The ALJ's decision was affirmed by the
LIRC and by the circuit court.
In a decision authored by Judge Wedemeyer, the court of appeals
affirmed. In resolving this case the court considered both Wis.
Stat. section
102.01(2)(g), which sets the date of injury in occupational
disease cases, and section
102.42(1), which provides that medical expenses incurred
before an employee knows that he or she is experiencing a work-related
injury are compensable. Reading the statutes together, the court
concluded that the only reasonable interpretation is that medical
expenses in occupational disease cases are not compensable until
the date of injury. But, once a date of injury is established,
any medical expenses associated with the work-related injury,
even if incurred before the technical date of injury, are compensable.
Judge Schudson filed a concurring opinion.
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.
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