Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Criminal Law | Criminal Procedure
| Insurance | Municipal Law | Torts | Worker's Compensation |
Criminal Law
Carrying Concealed Weapon - Defense of Privilege
State v. Dundon, No.
97-1423-CR (filed 11 June 1999)
The defendant managed a gas station in Milwaukee. Confronted with a
safe filled to capacity and the unavailability of the station's armored
car service to make a pickup, the defendant decided to take the contents
of the safe (which included $17,000 in cash) to the bank himself. While
doing so he carried a concealed firearm and was arrested for that
offense.
The primary issue before the supreme court was whether a person may
assert a defense of privilege to the crime of carrying a concealed
weapon (CCW). In a unanimous decision authored by Justice Prosser, the
court began its analysis by examining the Wisconsin privilege statute
and its various specific provisions. See Wis. Stat. §
939.45. Concluding that the statute's privileges for coercion,
necessity, defense of persons or property, fulfillment of duties of a
public office, accomplishment of lawful arrest, and parental discipline
did not apply, the court turned to the last subsection of the statute
which establishes a privilege "when for any other reason the actor's
conduct is privileged by the statutory or common law of this state." The
defendant claimed that this last privilege permits the common law
privilege recognized in State v.
Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996), for the crime
of felon in possession of a firearm to apply to the crime of CCW.
Coleman recognized a narrow defense of privilege to a charge of felon
in possession of a firearm when a stringent five-part test is satisfied.
However, the supreme court declined to extend the Coleman privilege to
the unrelated crime of carrying a concealed weapon. The court further
noted that Wisconsin has not recognized any unique statutory or common
law privilege to the crime of carrying a concealed weapon for more than
120 years.
Having determined that a defense of privilege was unavailable to the
defendant, the court proceeded to dispose of various claims of trial
error raised by the defendant. It concluded that, inasmuch as no defense
of privilege to the crime of carrying a concealed weapon was or could
have been established by the defendant in this case, the judge did not
commit error by excluding evidence supporting this invalid defense, by
refusing to permit defense counsel to argue this defense to the jury,
and by declining to instruct the jury on the defense.
Injury by Negligent Handling of Dangerous Weapon - Dogs as Dangerous
Weapons
State v. Bodoh, No.
97-0495-CR (filed 18 June 1999)
The defendant's Rottweiler dogs chased a 14-year-old boy who was
riding his bicycle. The dogs pulled the boy from his bike and bit him
several times, causing injuries requiring more than 300 stitches. As a
result of this incident the defendant was charged and convicted by a
jury of injury by negligent handling of a dangerous weapon, contrary to
Wis. Stat. section
940.24.
In a unanimous decision authored by Justice Bablitch, the supreme
court affirmed the conviction. It concluded that a dog can be a
dangerous weapon if used or intended to be used in a manner calculated
or likely to cause death or great bodily harm and that there was
sufficient evidence presented to the jury to prove that the defendant
did so use or intend to use his dogs. This included proof that the
defendant regarded his animals as "watchdogs." The evidence included
several examples of aggressive and vicious behavior by these dogs that
demonstrated improper or insufficient training. There was no evidence
showing that the defendant did anything to correct the aggressive
behavior of his dogs.
The court cautioned that not all dogs are dangerous weapons and not
all dog owners whose dogs bite another person can be subject to
prosecution under section
940.24. It is only when there is sufficient evidence that the
defendant intended to use his or her dog as a dangerous weapon that the
person can be liable under the statute.
The court further concluded that the state demonstrated that the
defendant was "handling" his dogs at the time of the attack (an element
of the crime) even though he was not present when the attack occurred
and was, in fact, out of state at the time. The court concluded that a
person need not be physically present to "handle" a dog as that term is
used in the statute and that there was ample testimony that the
defendant was responsible for supervising, directing, and controlling
his dogs.
Finally, the court held that the evidence was sufficient to prove
that the defendant was criminally negligent in the handling of his dogs
as that phrase is used in the statute. There was considerable testimony
that the dogs were frequently loose and running at large in the
community and that they had been involved in prior unprovoked attacks.
Even though the defendant took steps to contain the dogs, given the
apparent nature of the dogs and their history, as well as their size and
power, the court concluded that there was sufficient and credible
evidence in the record to support the jury's determination that a person
of ordinary intelligence and prudence would reasonably foresee that
failure to more adequately contain the dogs, especially when out of
town, would subject others to an unreasonable and substantial risk of
death or great bodily harm.
Criminal Procedure
Revocation of Probation - Hearing Before Administrative Law Judge -
Separation of Powers
State v. Horn, No.
97-2751-CR (filed 11 June 1999)
The defendant challenged the constitutionality of Wis. Stat. section
973.10(2), which authorizes administrative, rather than judicial,
revocation of probation. The circuit court agreed with him and declared
the statute unconstitutional as a violation of the separation of powers
doctrine.
Before the supreme court the issue was whether it is within the
exclusive power of the judiciary to determine whether a defendant has
violated the court-imposed conditions of probation and whether probation
should be revoked and the defendant sent to prison. In a unanimous
decision authored by Justice Bablitch, the supreme court held that
disposition of a criminal case, including imposing and revoking
probation, is within powers shared among the branches of government.
Because the legislative delegation of probation revocation to the
executive branch does not unduly burden or substantially interfere with
the judiciary's constitutional function to impose criminal penalties,
the court concluded that section
973.10(2) is constitutional.
Responding to the defendant's assertion that it is striking that
Wisconsin is the only state that requires administrative rather than
judicial probation revocation, the court noted that it analyzed the
statute cited above using a separation of powers analysis based on the
Wisconsin Constitution. The court further observed that nothing in the
federal constitution forbids a state from providing for administrative
revocation of probation imposed by a court. Because neither the federal
constitution nor principles of due process require that probation
revocation proceedings be conducted before a court, the supreme court
was not persuaded by other jurisdictions relying on judicial rather than
administrative probation revocation.
Guilty Pleas - Failure of Defendant to Personally Articulate His
Plea on the Record
State v. Burns, No.
96-3615-CR (filed 22 June 1999)
In open court and in the presence of the defendant, defense counsel
informed the judge that the defendant was prepared to change his plea
from not guilty to no contest to a charge of homicide by intoxicated
operation of a vehicle. The defendant had completed and signed a plea
questionnaire and waiver of rights form on the morning of the hearing,
which was filed with the circuit court. On the form the defendant
indicated his wish to enter a plea of no contest to the charge. The
circuit court engaged the defendant in an on-the-record colloquy to
establish that the defendant understood the written plea questionnaire,
was entering the plea voluntarily, was aware of the potential penalties,
and understood that by entering a plea he would waive important
constitutional rights. However, the circuit judge failed to ask the
defendant on the record to verbalize his plea of no contest and the
defendant never spoke those words.
The issue before the supreme court was whether Wis. Stat. section
972.13(1) requires that a defendant expressly and personally
articulate a plea of guilty or no contest on the record in open court in
order for a judgment of conviction to be entered on the plea. In a
majority opinion authored by Chief Justice Abrahamson, the court
affirmed the judgment of conviction, because the only inference possible
from the totality of the facts and circumstances in the record is that
the defendant intended to plead no contest.
Despite this conclusion, the court expressed deep and continuing
concerns about affirming a conviction based on a plea when the defendant
has not expressly and personally articulated that plea on the record in
open court. "A defendant expressly and personally pleading guilty or no
contest on the record in open court is the best way for a circuit court
to assure itself that the defendant has personally made the decision to
so plead. This court urges circuit courts to follow the usual and
strongly preferred practice of asking defendants directly and personally
in open court and on the record how they plead to the charged offenses
and of entering the pleas on the record."
Justice Bradley filed a dissenting opinion.
Ineffective Assistance of Counsel - Conflict of Interest
State v. Love, No.
97-2336-CR (filed 23 June 1999)
This case concerns a relatively unique set of facts. In 1995 the
defendant was charged with new crimes that led to the revocation of his
probation. When he was returned to court for sentencing on the original
charge, he was represented by a public defender who also happened to
have been the assistant district attorney who represented the state at
the original sentencing. The defendant later filed a postconviction
motion alleging that the public defender/former prosecutor had rendered
ineffective assistance of counsel. The circuit court denied the motion
but the court of appeals reversed, holding that the defendant was
entitled to a resentencing without having to demonstrate either an
actual conflict of interest or prejudice.
The supreme court, in an opinion written by Justice Prosser, reversed
the court of appeals. Extensively reviewing the case law on ineffective
assistance of counsel and conflicts of interest, the supreme court held
that "in order to establish a Sixth Amendment violation on the basis of
a conflict of interest in a serial representation case, a defendant who
did not raise an objection at trial must demonstrate by clear and
convincing evidence that his or her counsel converted a potential
conflict of interest into an actual conflict of interest by (1)
knowingly failing to disclose to the defendant or the circuit court
before trial the attorney's former prosecution of the defendant, or (2)
representing the defendant in a manner that adversely affected the
defendant's interests." On this record the defendant failed to make the
requisite showing.
Guilty Pleas - Procedures - Withdrawal
State v. Brandt, No.
97-1849 (filed 8 June 1999)
The defendant pleaded guilty to forgery and theft. Before entering
the plea, his lawyer read him a guilty plea questionnaire that the
defendant later signed. Attached to the questionnaire was an addendum
that contained incorrect information about the offenses he was pleading
to. At the guilty plea colloquy the trial judge conveyed correct,
complete, accurate information about the defendant's crimes and the
rights he was waiving. Some time later, the defendant brought a motion
to withdraw based on the incorrect information set forth in the addendum
and on which he claimed to have relied. The lower courts affirmed the
convictions.
The supreme court, in an opinion written by Justice Bradley, also
affirmed. The law clearly requires that the defendant "understand" his
guilty plea. The defendant's argument "hinge[d] on two facts: (1) the
plea questionnaire and the plea colloquy described different crimes; and
(2) the circuit court did not notice this inconsistency and clarify the
matter with Brandt." Trial courts, however, have discretion in how to
conduct the plea hearing and are not required to use the questionnaire.
Here the judge was authorized to "order the completion of a plea
questionnaire but then conduct its colloquy disregarding in whole or in
part that questionnaire." In cases where judges ignore the plea
questionnaire and use the colloquy, reviewing courts will scrutinize the
colloquy; "the adequacy or deficiency of the plea questionnaire is not
at issue because it does not constitute the basis on which the plea is
accepted." The supreme court explicitly distinguished cases where the
judge relies on the information in the plea questionnaire to demonstrate
the defendant's understanding.
Competency Hearings - Time Limits
State ex rel. Hager v.
Martin, No. 97-3841-W (filed 16 June 1999)
The defendant was held in custody from July 1997 to December 1997,
awaiting an examination to determine whether he was competent to stand
trial for numerous criminal charges against him. In this habeas corpus
action he now seeks dismissal of all the pending charges against him and
release from custody claiming that the statutory time limits for a
competency examination were violated.
The first issue before the supreme court was whether a petitioner can
raise an issue of statutory interpretation on a writ of habeas corpus.
In a decision authored by Justice Wilcox, the court concluded that a
question of statutory interpretation may be considered on a writ of
habeas corpus only if noncompliance with the statute at issue resulted
in the restraint of the petitioner's liberty in violation of the
constitution or the court's jurisdiction.
The second issue before the court involved the question of whether
there was a jurisdictional defect because the competency examination was
not conducted within statutory time limits. The supreme court answered
in the negative. Pursuant to Wis. Stat. section
971.14(2), a competency examination ordered to be conducted on an
inpatient basis must be completed and the report of the examination
filed within 15 days after the examination is ordered. However, if the
court orders the defendant to be examined by the Department of Health
and Family Services or a department facility, the department shall
determine if the examination is to be done on an inpatient basis and, if
so, the 15-day time period begins to run upon the defendant's arrival at
the inpatient facility.
The court order for the competency examination in this case directed
that the examination be conducted at Winnebago - a department mental
health facility. Because the defendant was never transported to the
Winnebago facility, the time limit for conducting the examination never
started to run. There was thus no violation of section
971.14(2).
Chief Justice Abrahamson filed a concurring opinion with which
Justice Bradley joined.
Return of Seized Property - Money as "Contraband"
Jones v. State, No.
97-3306 (filed 3 June 1999)
This case involves the interplay of two statutory schemes relating to
the return of seized property.
Wis. Stat. section
961.55(1) provides among other things that all property, real or
personal, including money, directly or indirectly derived from or
realized through the commission of any crime under the controlled
substances chapter of the Wisconsin Statutes and any drug paraphernalia
are subject to a state forfeiture action. Seizure without process may be
made if it is incident to arrest. The statute further provides that any
property seized but not forfeited shall be returned to its rightful
owner, and any person claiming the right to possession of seized
property may apply for its return to the circuit court.
Wis. Stat. section
968.20(1) provides that any person claiming the right to possession
of property seized with or without a search warrant may apply for its
return to the circuit court. If the right to possession is proved to the
court's satisfaction, it shall order the property, other than
contraband, returned if it is not needed as evidence or all proceedings
have been completed.
The first issue before the supreme court in this case was described
in the opinion as follows: If property is seized pursuant to a search
that leads to a charge of a violation of the Uniform Controlled
Substances Act (Wis. Stat. ch. 961) and the state has not initiated
forfeiture proceedings, may an interested party seek return of the
property under Wis. Stat. section
961.55? In a decision authored by Justice Wilcox, the court
concluded that the Legislature intended that the return of property
provision in section 961.55 can only be triggered by an unsuccessful
forfeiture action brought by the state. In all other situations where
the state has not initiated a forfeiture action, a person claiming the
right to property seized by the authorities is limited to the procedures
set forth in Wis. Stat. section 968.20.
The second issue before the court was specified as follows: If the
interested party brings an action for return of property under Wis.
Stat. section
968.20, is cash considered "contraband" within the meaning of
section 968.13(1), particularly when the charge arising out of the
property seized during the search is ultimately dismissed? The court
concluded that when the state has not instituted forfeiture proceedings
and an interested party seeks return of seized property under section
968.20, in order to retain the property, the state must establish that
the property is either contraband or is needed as evidence in a case.
For property alleged to be contraband, the state must establish a
logical nexus between the seized property and illicit behavior on the
part of the petitioning property owner. If property is found to be
contraband, then the property need not be returned whether criminal
charges ultimately are filed or not.
The court further concluded that the notion of "contraband"
encompasses not only those items that are illegal per se, such as
controlled substances or forged money, but also those items that are
used, acquired, or transferred illicitly. Said the court, money that is
established to have been acquired through the sale of or used to
purchase controlled substances certainly constitutes contraband under section
968.13(1)(a) (the statute defining the term).
Finally, the court concluded that when the state contends that
property need not be returned under section 968.20(1) because it
constitutes contraband, the state must establish this by the greater
weight of the credible evidence.
Justice Prosser filed a concurring opinion. Justice Bradley filed a
dissent that was joined by Chief Justice Abrahamson.
Insurance
Property Damage - Covered Occurrence
Smith v. Katz, No.
96-1998 (filed 22 June 1999)
The Smiths bought a vacant lot from Giuffre and contracted with a
builder for a new home. The foundation collapsed several times when the
excavation filled with water, causing delays and additional expense. The
Smiths also complained that after the house was completed, ground water
pressure was causing additional damage. The Smiths filed suit against
their builder, an engineer, and Giuffre. The claims against Giuffre
alleged breach of warranty and misrepresentation. West Bend Insurance
intervened, asserting that the claimed damages did not trigger its duty
to defend or indemnify Giuffre. The circuit court granted a declaratory
judgment in West Bend's favor. The court of appeals affirmed.
The supreme court, in an opinion written by Justice Prosser, also
affirmed. The case was before the supreme court on a motion for
reconsideration of its decision at 218 Wis. 2d 442, 578 N.W.2d 202
(1998). In its initial opinion, the court ruled that the only West Bend
policy in the record predated the occurrence of the damage. The motion
to reconsider involved another West Bend policy that did apply to the
period when damage occurred. Justice Prosser explained that the court
originally granted the petition for review in order to analyze and
interpret the "premises you sell" exclusion in the standard form
commercial general liability insurance policies. The supreme court did
not reach that issue, however, because it held that Giuffre had no
coverage under the policy.
The supreme court focused on three claims against Giuffre: 1) breach
of warrant; 2) "strict responsibility misrepresentation"; and 3)
negligent misrepresentation. Nowhere did the plaintiffs allege that
Giuffre caused "property damage," based on the allegations in the
complaint. "[A] complaint claiming strict responsibility
misrepresentation or negligent misrepresentation must contain some
statement about physical injury to tangible property, some reference to
loss of use, or some demand for relief beyond money damages if the
complaint is to satisfy the requirement that 'property damage' be
alleged within the four corners of the complaint."
The court next addressed ("for the sake of argument") whether the
complaint against Giuffre alleged an "occurrence" covered by the policy.
After reviewing the applicable precedents, Justice Prosser concluded
that "at some future date" the court would have to decide whether strict
liability or negligent misrepresentations were "accidents" covered under
liability policies.
The court then addressed the issue of causation. Based on its review
of the record, the court held that Giuffre's alleged misrepresentations
did not cause physical injury to the Smiths' property. The Smiths
decided to build the house, they hired a contractor and an engineer to
assist them, and they decided to continue construction even after the
foundation collapsed "three or four times."
Municipal Law
Municipal Courts - Power to Order Out-of-State Defendants to Appear
Personally
City of Sun Prairie v.
Davis, No. 97-1651 (filed 18 June 1999)
This case involved an OWI prosecution for the violation of local OWI
ordinances enacted by the City of Sun Prairie. The municipal court
entered a default judgment against the defendant, an Illinois resident,
because he failed to comply with a municipal court order requiring him
to personally appear at the trial of the OWI civil forfeiture action.
This action was taken even though the defendant's attorney was
present.
The issue before the supreme court was whether a municipal court has
the inherent authority to enter such an order. In a unanimous decision
authored by Justice Bablitch, the supreme court held that a municipal
court does not have inherent authority to order an out-of-state
defendant to personally appear at a trial on a civil forfeiture action.
Accordingly, it vacated the default judgment and remanded the case to
the municipal court for proceedings on the merits.
In reaching this conclusion the court likened the order requiring the
defendant to personally appear to a subpoena. The power of a municipal
court to authorize the subpoena of a defendant is unquestioned when the
defendant is within Wisconsin. However, there is no statutory authority
for a municipal court to subpoena, or order the presence of, an
out-of-state defendant. The court further determined that the existence
of the municipal court and the orderly and efficient exercise of its
jurisdiction are not dependent upon the personal presence of the
defendant and, therefore, a municipal court does not have inherent
authority to order an out-of-state defendant to appear personally at
trial in a civil forfeiture action.
Torts
Recreational Use Immunity - Spectators - Team Sports
Meyer v. School District of
Colby, No. 98-0482 (filed 18 June 1999)
Plaintiff attended a high school football game. She was injured when
the wooden bleachers broke as she was descending after the game. The
plaintiff sued the school district. The circuit court dismissed based
upon recreational use immunity, and the court of appeals affirmed. The
court held that "the organized team sport activity exception [Wis. Stat.
§
895.52(1)(g)] does not extend to spectators who are not participants
in the excepted activity and whose injuries do not arise out of the team
sport activity of the actions of participants in that activity."
The supreme court, in an opinion written by Chief Justice Abrahamson,
reversed. Without dispute, the junior varsity football game was an
organized sports activity sponsored by the school district and conducted
on its property. Section
895.52(1)(g) "neither includes nor excepts spectators." Prior cases
compelled the court to "consider not only that the plaintiff was a
spectator but also the activity at which the plaintiff was a spectator."
The court held that spectators also fall within the exception. The
statute on its face does not restrict the exception to team players. Nor
did public policy require a different construction: "there is no
shortage of facilities for organized team sport activities that an owner
sponsors." Rather, "organized team sport facilities are constructed to
attract the public to the owner's sponsored events." Finally, the court
rejected the argument that because another exception applies where a
governmental body charges admission to spectators, it follows that an
entity "not charging an admission fee to spectators should be
immune from liability." These are two separate exceptions.
Notice of Claim - Estoppel - "Dual Persona" Doctrine
Riccitelli v.
Broekhuizen, No. 98-0329-FT (filed 24 June 1999)
Dr. Riccitelli was enrolled in a four-year residency program at
Sinai-Samaritan. The program was run under an "affiliation agreement"
between Aurora Health Care Inc., the hospital's owner, and the U.W.
Medical School. In his fourth year, Riccitelli received notice that the
supervising committee would not certify his completion of the program.
He participated in a "remediation" program but was terminated from the
residency in September 1995. Riccitelli brought an action seeking an
injunction barring his termination as well as damages. The action failed
and Riccitelli was terminated. In 1997 he filed this action alleging
interference with contract against Drs. Broekhuizen and Hagarty, who had
supervised parts of the residency program. The circuit court dismissed
the complaint because Riccitelli had failed to file a notice of claim,
as required by statute. The court of appeals reversed, ruling
Broekhuizen's and Hagarty's "dual" employment by the state and Aurora
forgave the need for a notice of claim.
The supreme court, in an opinion written by Justice Wilcox, reversed.
The issue was "whether Dr. Riccitelli's failure to timely file a notice
of claim with the state, pursuant to Wis. Stat. section
893.82, mandates dismissal of Drs. Broekhuizen and Hagarty from this
action." It was undisputed that Riccitelli failed to give the notice.
Nor did the court agree that Hagarty and Broekhuizen were "similarly
situated." Hagarty had not been a party to the 1995 action in which
Riccitelli sought a court order permitting him to complete the
residency. The only evidence in the record showed that Hagarty was a
state employee. The court granted her judgment as a matter of law.
The court next addressed Broekhuizen. It refused to apply the
doctrine of judicial estoppel to preclude Broekhuizen from arguing he
was a state employee. Nothing he said in the earlier suit was
"irreconcilably inconsistent" with his assertions in this case. Rather,
Broekhuizen merely addressed the multiple roles that he played teaching
medical students, supervising residents, and practicing medicine. He
said nothing about his employer. The supreme court also refused to apply
the doctrine of "equitable estoppel" to bar Broekhuizen's assertion of
state employment.
Examining the dual persona doctrine, the court held that it should
not be applied to "circumvent a party's failure to file a timely notice
of claim" under section
893.82(3) of the Wisconsin Statutes. Such a use failed to comport
with the purpose behind the notice of claim statute and the dual persona
doctrine. Moreover, even if it had applied, Riccitelli failed to
demonstrate all the elements of the dual persona doctrine; that is, "the
two persona must be completely independent from and
unrelated to one another such that the law recognizes them as
separate legal persons." (Emphasis original.)
Finally, the court rejected Riccitelli's arguments that the notice of
claim statute was unconstitutional as it applied to him.
Medical Malpractice - Informed Consent - Contributory Negligence -
Jury Instructions
Brown v. Dibbell, No.
97-2181 (filed 23 June 1999)
The plaintiff sued the defendant health-care providers for
complications arising from the performance of bilateral mastectomies.
The jury found that one doctor, Dibbell, negligently had obtained the
plaintiff's consent to surgery. It exonerated another doctor on the
informed consent claim and found that neither one had negligently
treated her. The jury also determined that the plaintiff was 50 percent
causally negligent for failing to exercise ordinary care with respect to
her own health. The defense brought post-verdict motions challenging the
jury's findings and also asserting error in the judge's refusal to give
a requested instruction. The judge denied the motions but the court of
appeals reversed and remanded for a new trial.
The supreme court, in a decision authored by Chief Justice
Abrahamson, affirmed. The court addressed several key issues regarding
informed consent claims. Initially, it concluded "that as a general rule
patients have a duty to exercise ordinary care for their own health and
well-being and that contributory negligence may, under certain
circumstances, be a defense in an informed consent action."
The court then turned to "three aspects of the patient's duty."
First, patients "must tell the truth and give complete and accurate
information about personal, family, and medical histories to a doctor to
the extent possible in response to the doctor's requests for information
when the requested information is material to a doctor's duty as
prescribed by section
448.30, and that a patient's breach of that duty might, under
certain circumstances, constitute contributory negligence. Error
occurred because the judge did not give an instruction "tailored" to the
plaintiff's disclosures in this case. Second, "a patient's duty to
exercise ordinary care does not impose on the patient an affirmative
duty to ascertain the truth or completeness of the information presented
by the doctor; nor does a patient have an affirmative duty to ask
questions or independently seek information." For these reasons, juries
normally should not be instructed that the plaintiff can be found
"contributorily negligent for failing to ask questions" or to undertake
independent research. Third, "except in a very extraordinary situation,
a patient is not contributorily negligent for choosing an available
medical mode of treatment presented by a doctor." The evidence did not
present an extraordinary situation.
The court then turned to the defendant's allegation that the judge
erred in not giving instructions relating to section
448.30 of the Wisconsin Statutes, which frees the doctor from
providing certain kinds of information to the patient, and the "optional
fourth paragraph" of Wis JI-Civil 1023.2, on informed consent. This
discussion is closely tied to the record. In summary, the supreme court
held that the jury should have been instructed about the defenses found
in section 448.30 because the evidence so warranted. The language in Wis
JI-Civil 1023.2, however, was "misleading" and should not have been
given in the manner suggested by the defense.
Worker's Compensation
Traveling Employee - Acts Reasonably Necessary for Living or
Incidental Thereto
Wisconsin Electric Power Co. v.
Labor and Industry Review Commission, No. 97-2747 (filed 22
June 1999)
Overbye was employed as an engineer for Wisconsin Electric Power
Company (WEPCO). WEPCO sent him to a business-related seminar in the
Dallas-Fort Worth area. The seminar was scheduled to end at noon on a
Friday. Overbye took advantage of a WEPCO travel policy under which the
company would reimburse him for an extra night's lodging and expenses if
he opted for a return flight that departed on a weekend day instead of
one that left on Friday, thereby reducing the airfare the company would
have to pay.
After the seminar concluded on Friday afternoon, Overbye, his wife
(who had joined him in Texas) and another WEPCO employee ate lunch and
then set off in a rental car to do some sightseeing in nearby Fort
Worth. On that trip the trio was involved in a car accident that killed
Overbye's wife and caused serious injuries to Overbye. He himself died
as a result of his injuries following the hearing in this case.
Overbye's guardian petitioned for various benefits and medical
expenses under the Worker's Compensation Act (WCA). The Labor and
Industry Review Commission affirmed the decision of the administrative
law judge ordering WEPCO to compensate Overbye, determining that
Overbye's sightseeing was an act "reasonably necessary for living or
incidental thereto" under the "traveling employee" provision of the WCA.
See Wis. Stat. §
102.03(1)(f) (which provides that "acts reasonably necessary for
living or incidental thereto" shall not be regarded as a deviation for a
private or personal purpose when determining coverage under the
WCA).
In a unanimous decision authored by Justice Crooks, the supreme court
concluded that LIRC's application of the traveling employee statute to
the facts of this case was reasonable and was supported by findings of
fact based on credible and substantial evidence. The statute establishes
a presumption that an employee traveling on business is performing
services arising out of and incidental to his or her employment at all
times until he or she returns. This presumption continues unless it is
rebutted by evidence to the contrary. Two things must be proved in order
to rebut the presumption. First, it must be established that the
employee deviated from his or her business trip for a private or
personal purpose. Second, it must be shown that the deviation, although
for a personal purpose, was not an act reasonably necessary for living
or incidental thereto. An employee's actions are reasonably necessary
for living or incidental thereto as long as they can be considered usual
and proper customary conduct while living away from home.
In making these determinations the focus must be upon the particular
facts and circumstances involved in the case at bar, not on generalized
synopses of appellate court conclusions in past cases involving
different fact scenarios. In this case it was reasonable for LIRC to
conclude that Overbye's sightseeing was reasonable recreation incidental
to living. The court noted that the injury occurred on Friday afternoon
while WEPCO continued to benefit financially from Overbye's stayover in
Texas. Further, the sightseeing trip was confined to the Dallas-Fort
Worth metro area. Finally, there is no evidence of any illegal motive or
behavior on Overbye's part.
The supreme court characterized as "apt" the statement of counsel for
LIRC during oral argument before the court that this case "pushes the
envelope" of the kinds of behavior by traveling employees that might be
considered incidental to living under the statute cited above.
Nevertheless, LIRC's application of the statute to the facts of this
case was reasonable and was supported by findings of fact based on
credible and substantial evidence.
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.
Wisconsin
Lawyer
