Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). 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.

Attorney fees Wisconsin Consumer Act - Collections

River Bank of DeSoto v. Fisher, No. 95-0148-FT (filed 17 Dec. 1996)

In this per curiam opinion, the court took up the issue of attorney fees that it had left open in its previous opinion in this case at 202 Wis. 2d 245 (1996). The supreme court remanded the case to the circuit court for a determination of whether the bank's collection efforts violated section 427.104(1)j) of the Wisconsin Statutes, which precludes a creditor from claiming, attempting or threatening to enforce a right with knowledge or reason to know that the right does not exist. If a violation is found, attorney fees under section 425.308 shall be awarded.

Business law

Contracts - Ambiguous Versus Indefinite Terms - Conversion - Unjust Enrichment - Punitive Damages - Remittitur Procedures

Management Computer Services Inc. v. Hawkins, Ask, Baptie & Co.,No. 93-0140 (filed 20 Dec. 1996)

A computer company, "MCS," entered into an agreement with an accounting firm, "HABCO," to provide various goods and services. MCS later sued HABCO, alleging that it had stolen computer programs, including some that were not covered by the contract. The theft occurred through the use of various backup tapes that were later erased to cover the trail. Because the background of the case is lengthy and complex, it is only feasible to summarize the supreme court's actions.

The complaint alleged breach of contract, conversion, unjust enrichment and punitive damages. HABCO counterclaimed for breach of contract. A jury found: "(1) HABCO breached the contract by failing to purchase computer hardware from MCS, failing to pay 25% of the program value to MCS for the use of the contract software, and failing to compensate MCS for the use of the contract software, and failing to compensate MCS for its use of the proprietary software, resulting in damages totaling $1,520,750; (2) HABCO converted MCS's noncontract software from the backup tapes, resulting in damages of $65,000; (3) HABCO was unjustly enriched by copying the noncontract software, resulting in $1,000,000 of damages; and (4) HABCO's conduct was outrageous, with the jury assessing $1.75 million in punitive damages." The jury awarded HABCO only about $5,000 on its counterclaim.

During post-trial motions, the trial judge gutted the verdict in several critical respects. The court of appeals reversed in part and affirmed in part. The appellate court agreed with the trial judge that the contract was void for indefiniteness and that insufficient evidence supported the unjust enrichment damages. But it reversed the reduction of the conversion award (sufficient evidence supported the jury's finding) and agreed that while the $1.75 million punitive damages were excessive, $650,000 represented a more equitable award than the paltry $50,000 set by the judge.

The supreme court, in an opinion written by Justice Crooks, affirmed in part and reversed in part. The court reiterated that JNOV is appropriate only where the facts found by the jury are insufficient as a matter of law to support a cause of action. It then explained the distinction between an ambiguous contract, which is nevertheless valid, and one which is void as "indefinite": "Vagueness or indefiniteness as to an essential term of the agreement prevents the creation of an enforceable contract." (Emphasis original.) In this case the contract may have been ambiguous but it was not fatally indefinite. "[W]hen parties disagree about their intentions at the time they entered into a contract, the question is one of contract interpretation for the jury, not mutual assent or contract formation." Thus, the contract was not void.

The court next considered whether HABCO was excused from future contract performance because of MCS's prior material breach, which presented a question of fact. The issue was not, however, adequately presented to the jury, leaving the court to consider whether the breach was so severe that it destroyed the essence of the contract. The supreme court held that the contract's essence had not been destroyed. First, the parties substantially performed the contract. Second, monetary damages adequately compensated HABCO for its loss. Finally, HABCO waived the claim through its actions at trial.

As to the conversion and unjust enrichment damages, the court held that credible evidence supported the conversion award but not the unjust enrichment award. The analysis involved the application of settled law to the particular facts.

Finally, the court considered whether the trial judge acted correctly in reducing the punitive damages award to $50,000. It once again reaffirmed the Powers rule, under which the reviewing court will only upset a trial court's remittitur for an abuse of discretion. And in this case, the judge's conclusory reasons and failure to analyze evidence empowered the supreme court to review the issue ab initio. The trial judge arrived at the $50,000 figure by using a multiplier based upon parallel criminal sanctions. The supreme court rejected "the notion that courts can use a multiplier, or fixed ratio of compensatory-to-punitive damages or criminal fines-to-punitive damages, to calculate the amount of reasonable punitive damages." Instead, the supreme court focused on such factors as HABCO's grievous and malicious copying of software that MCS had entrusted to it to protect, and HABCO's use of it in competition with MCS. The court also looked at the amount of compensatory damages, the severity of possible criminal sanctions, and HABCO's economic strength (although no evidence of its net worth was presented). In light of all these factors, the $1.75 million punitive damage award was clearly excessive, but the $650,000 figure established by the court of appeals represented a reasonable amount.

Civil rights

Section 1983 Claims - Qualified Immunity -
Foster Care Safety - Standard of Care

Kara B. v. Dane County, No. 94-1081 & 2908 (filed 25 Nov. 1996)

In 1989 and 1990 two young children were adjudged to be in need of protective care and were placed in the custody of Dane County for foster home placement. While in the foster home, the children allegedly were subjected to sexual and physical abuse. The girls brought actions against Dane County alleging violation of their civil rights under 42 U.S.C. sec. 1983 as well as claims for negligence and professional malpractice. Dane County asserted multiple defenses in each action. Ultimately, the court of appeals found that Dane County officials could not claim qualified immunity because they had violated the girls' clearly established rights. The court also ruled that the public officials' conduct should be assessed on a professional judgment standard.

The supreme court, in an opinion written by Justice Wilcox, affirmed. The court first addressed whether the public officials had violated the girls' clearly established rights under the constitution or statutes as of March 1989 (the date of the first placement in the foster home). Justice Wilcox carefully discusses the Supreme Court cases explicating the care owed by states to those in its custody, whether they are prisoners, involuntarily committed mental patients or children deemed in need of protection. These cases, said the court, culminate in DeShaney v. Winnebago County, 489 U.S. 189 (1989), and recognize "a clearly established constitutional right under the Due Process Clause to safe and secure placement in a foster home."

The supreme court next addressed the appropriate standard of care governing breaches of this right. Rejecting a "deliberate indifference standard," the court held that "those entrusted with the task of ensuring that children are placed in a safe and secure foster home owe a constitutional duty that is determined by a professional judgment standard."

Criminal law

Homicide by Intoxicated Use of a Vehicle - Affirmative Defense - Contributory Negligence of Victim No Defense

State v. Lohmeier, No. 94-2187-CR (filed 29 Nov. 1996)

The defendant was charged with homicide by the intoxicated use of a motor vehicle. The evidence demonstrated that he struck two pedestrians who were walking along a roadway unlawfully (the unlawfulness of their conduct being that they were walking along the right side of the roadway). The trial court concluded that there was sufficient evidence in the record to support a jury instruction on the statutory affirmative defense codified in the homicide by intoxicated use of a vehicle statute. Accordingly, the court instructed the jury that it should find the defendant not guilty if it found that the defendant proved by a preponderance of the evidence that the deaths of the victims would have occurred even if the defendant had been exercising due care and had not been under the influence of an intoxicant. Immediately following this instruction, the court told the jury that it is no defense to a prosecution for a crime that the victim may have been contributorily negligent. This instruction was given pursuant to section 939.14 of the Wisconsin Statutes.

The jury convicted the defendant. On appeal, the court of appeals reversed the conviction, concluding that the contributory negligence instruction deprived the defendant of a meaningful opportunity for consideration by the jury of the statutory affirmative defense described above.

The supreme court, in a majority decision authored by Justice Crooks, reversed the court of appeals. The court first considered the standard of review to be used by an appellate court when there is a claim that the interplay of jury instructions, which themselves were legally correct, violated a defendant's constitutional rights by misleading the jury. The supreme court concluded that the standard to be used is whether there is a reasonable likelihood that the jury applied the challenged instructions in a manner that violates the constitution. In making this determination, appellate courts should view the jury instructions in light of the proceedings as a whole, instead of viewing a single instruction in artificial isolation.

The court also used this case as an opportunity to explain the meaning of the provision in section 939.14 that contributory negligence of a crime victim is no defense. The court held that the statute means that a defendant is not immune from liability because the victim of his or her crime may have been negligent as well. This, however, does not mean that contributory negligence may not be relevant in the case. It often is relevant as to issues of causation and, in the context of the homicide statute under which the defendant was prosecuted in this case, could be the basis for the statutory affirmative defense quoted above.

The majority concluded that there was not a reasonable likelihood that the jury was misled in the way the instructions were given in this case. However, it indicated that it would have been better practice for the judge to have given a bridging instruction explaining the relationship of the affirmative defense codified in the homicide statute and section 939.14. It further recommended that the Wisconsin Criminal Jury Instructions Committee develop such a bridging instruction.

Justice Janine Geske filed a dissenting opinion in which Chief Justice Abrahamson and Justice Bablitch joined.

Criminal law

Felon in Possession of Firearm - Defense of Privilege

State v. Coleman, No. 95-0917-CR (filed 20 Dec. 1996)

The critical issue in this case was under what circumstances does a defense of privilege exist to a charge of felon in possession of a firearm contrary to section 941.29 of the Wisconsin Statutes.

In a unanimous decision authored by Justice Crooks, the supreme court concluded that a narrow defense of privilege under section 939.45(6) of the Wisconsin Statutes exists to a charge of felon in possession of a firearm. To be entitled to the defense, the defendant must prove:

1)the defendant was under an unlawful, present, imminent and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury, or the defendant reasonably believed he or she was under such a threat;

 

 

2)the defendant did not recklessly or negligently place himself or herself in a situation in which it was probable that he or she would be forced to possess a firearm;

 

 

3)the defendant had no reasonable, legal alternative to possessing a firearm, or reasonably believed that he or she had no such alternative; in other words, the defendant did not have a chance to refuse to possess the firearm and also to avoid the threatened harm, or reasonably believed that he or she did not have such a chance;

 

 

4)a direct causal relationship may be reasonably anticipated between possessing the firearm and the avoidance of the threatened harm; and

 

 

5)the defendant did not possess the firearm for any longer than reasonably necessary.

The court emphasized that a defendant will be able to establish these elements "only on the rarest of occasions," because of the difficulty of proving that he or she did not have a reasonable legal alternative to violating the law, and that he or she possessed the firearm for a period of time no longer than reasonably necessary.

Criminal procedure

Miranda Waivers - Foreign Language Warnings -
Interpreters - Burden of Persuasion

State v. Santiago, No. 94-1200-CR (filed 13 Dec. 1996)

The defendant pled guilty to possessing controlled substances with intent to deliver. The court of appeals reversed because there was insufficient evidence that the defendant had knowingly, voluntarily and intelligently waived his Miranda rights. The supreme court, in an opinion written by Chief Justice Abrahamson, affirmed.

First, the court clarified that the state bears the burden of showing a valid Miranda waiver by a preponderance of the evidence. The preponderance standard conforms to the "minimal federal standard under the Fifth and Fourteenth Amendments." Wisconsin does not demand any higher showing.

Second, the court "reaffirm[ed] that the sufficiency of the Miranda warnings and waiver of Miranda rights are ultimate issues of constitutional fact which this court determines de novo, benefiting from the analyses of the circuit court and court of appeals."

Third, the court agreed that the state "need not in every case present the foreign language Miranda warnings and their translation to make a prima facie case that the warnings in the foreign language were sufficient and that the accused made a knowing and intelligent waiver of the rights." But this case presented an exception, because "the state was put on notice during the presentation of its case at the hearing on the suppression motion that the defendant was claiming that the Spanish language warnings were inadequate." The accused's notice to the state is sufficient if it is set forth either in the motion to suppress or raised, as here, during the state's initial presentation of evidence at the hearing.

The court also held that when presented with such a claim, "the state must produce evidence of the sufficiency of the officer's foreign language Miranda warnings beyond the officer's conclusory statement that the officer gave the proper Miranda warnings." Specifically, "[a]n informing officer must, upon the accused's request, testify regarding the foreign language Miranda warnings given to the accused and those foreign language words must be preserved in the record." In this case the record was inadequate because the officer never testified to the entire Spanish text of the Miranda warnings, no one translated the words of the informing officer from Spanish into English, and there was reason to believe that the Spanish language warnings failed to accurately convey the Miranda rights.

Investigatory Stops - Reasonable Suspicion

State v. Waldner, No. 95-1291-CR (filed 13 Dec. 1996)

This case concerns whether a police officer had reasonable suspicion justifying the investigative stop of the defendant which ultimately led to his arrest for operating while under the influence of an intoxicant. The evidence revealed that at 12:30 a.m. on the date in question a police officer saw the defendant's car traveling on a main street in Richland Center at a slow rate of speed. The car stopped briefly at an intersection where there was no stop sign or light and then turned onto a cross-street where, according to the police officer, it accelerated to a speed of 20 to 25 mph in several seconds. Following the car, the officer saw it pull into a legal streetside parking space. The driver's side door opened and the defendant, who was in the driver's seat, poured some liquid - which the officer described as looking like "a mixture of liquid and ice" - out of a plastic glass onto the roadway. The defendant then got out of his vehicle and began walking around the front of it. When the officer pulled up and identified himself, the defendant began to walk away from the squad car. At that point the officer asked the defendant to stop, which he did.

On this evidence the circuit court concluded that the reasonable inferences from the facts supported the police officer's suspicion that the defendant had committed a crime and therefore the investigative stop was lawful. The court of appeals reversed, finding that neither the facts nor reasonable inferences drawn from the facts raised the officer's "inchoate hunch" to the level of a reasonable suspicion.

The supreme court, in a unanimous decision authored by Justice Bablitch, reversed the court of appeals. It concluded that the totality of the circumstances, including the defendant's unusual driving at a late hour and his dumping of liquid and ice from a plastic cup, coalesced to form the basis for a reasonable suspicion grounded in specific, articulable facts and reasonable inferences from those facts. The police officer was therefore justified in temporarily stopping the defendant, thereby freezing the situation in order to further investigate. The court agreed with the circuit judge that these facts, looked at together, formed a reasonable basis for the officer's suspicion that the defendant was impaired and very well could have been intoxicated.

The court agreed with the defendant that the acts observed by the officer were themselves lawful and that each could well have innocent explanations. But, said the court, that is not determinative. When a police officer observes lawful but suspicious conduct, if a reasonable inference of unlawful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, police officers have the right to temporarily detain the individual for the purpose of inquiry. Police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.

Search and Seizures - Automobile Stops - Passengers

State v. Harris, No. 95-1595-CR & 95-1596-CR (filed 27 Dec. 1996)

The defendant, Harris, pled guilty to possessing marijuana but challenged the legality of the seized evidence. The court of appeals affirmed the trial court's denial of his motion to suppress.

The supreme court, in an opinion written by Justice Geske, reversed in a decision that addressed two issues. First, the court held "that when the police stop a vehicle, all of the occupants of that vehicle are seized and thus have standing to object to the seizure." The court recognized the "growing trend" among state and federal courts that automobile passengers do not surrender their reasonable expectation of privacy. This "bright-line" standard applies "to all police-initiated vehicle stops." No distinction is drawn between "rights of passengers in a traffic stop and the rights of passengers in an investigatory stop." The court overruled contrary language in an earlier decision.

Second, the court also held that the officers in this case lacked reasonable, articulable suspicion that justified the seizure of any of the occupants, including Harris, who was a passenger. Thus, "[t]he state need not establish that the police had reasonable, articulable suspicion to seize the particular defendant before the court, but only that the police possessed reasonable, articulable suspicion to seize someone in the vehicle." (Emphasis added.)

Mental health commitments

Probable Cause Findings by Court Commissioner -
Reviewability in Circuit Court

Milwaukee County v. Louise M., No. 95-0291-FT

Milwaukee County v. Theodore S., No. 95-0292-FT (filed 27 Nov. 1996)

This case concerns the issue of whether the circuit court has the authority to review probable cause determinations by a court commissioner for involuntary detention under the Mental Health Act and, if so, what procedures and time guidelines apply.

Louise M. was involuntarily detained pursuant to the Mental Health Act when a police officer filed a statement of emergency detention. She was removed from her residence and taken against her will to a locked ward of the local mental health facility. A court commissioner found probable cause to believe the allegations in the emergency detention statement and, at the close of the probable cause hearing, Louise filed a request for a hearing de novo in the circuit court. The circuit court ruled that it lacked the authority to conduct such a review. The same basic facts occurred in the case involving respondent Theodore S.

The court of appeals reversed the circuit court, holding that the circuit court did have the authority to review a probable cause finding by a court commissioner. The appellate court decision required the circuit court to provide, upon a request, a de novo probable cause hearing to a subject of an involuntary commitment proceeding within 72 hours after a court commissioner has already found that probable cause exists to believe the allegations in the petition for commitment.

The supreme court, in a unanimous decision authored by Justice Steinmetz, affirmed in part and reversed in part. The supreme court concluded that because the circuit court retains its original jurisdiction over matters that it delegates to court commissioners, the circuit court has the power to review probable cause determinations. However, there is no statutory or constitutional right guaranteeing to the parties such a review. The court held that this is a discretionary review of the record to be held in a timely manner prior to the final hearing or trial in the case.

This discretionary review in cases where the court commissioner has found probable cause to detain is to be contrasted with the situation where a court commissioner dismisses the petition. In the latter scenario, the supreme court has held that, at the request of the county, a circuit court must conduct a de novo hearing to review a court commissioner's decision to dismiss a petition for want of probable cause. See In the Matter of Mental Condition of C.M.B., 165 Wis. 2d 703, 478 N.W.2d 385 (1992).

Motor vehicle law

Operating After Revocation - Repeat Offenders -
Proof of Prior Convictions

State v. Spaeth, No. 95-1827-CR (filed 20 Dec. 1996)

The defendant was charged with a fifth offense within a five-year period of operating a motor vehicle after revocation of his operating privilege (OAR). The key issue in the case concerned the appropriate method for proving prior OAR convictions for purposes of sentencing under the enhanced penalty provisions applicable to repeat OAR offenders. The defendant argued that the somewhat stringent methods for proving that a convicted criminal is an habitual offender within the meaning of the general repeater statute (Wis. Stat. 939.62) should also apply to proving that the repeat OAR offender should be subjected to increased penalties. A unanimous supreme court, in a decision authored by Justice Bradley, concluded that the statute which controls proof of habitual criminality under the general criminal repeater statute (Wis. Stat. 973.12(1)) does not govern the method of proving prior OAR convictions.

The court held that the state must establish prior OAR convictions by placing before the circuit court "competent proof" of prior convictions. Generally, competent proof of prior OAR convictions may emanate from either of two sources. First, a defendant's admission, whether given personally or imputed through counsel, is competent proof of prior OAR convictions. Second, in the absence of an admission, the state may establish prior OAR convictions by placing before the court reliable documentary proof of each conviction. This could include using the criminal complaint to establish serial OAR convictions. However, when the state chooses to rely solely upon the complaint to establish the prior convictions, the complaint must be accompanied by reliable documentary corroboration of the asserted convictions. Such documentary corroboration must describe the dates of each prior OAR offense and conviction, as well as the basis for the underlying license revocation.

In sum, the court held that, hereafter, "the state establishes the existence of a defendant's prior OAR convictions by competent proof when, at a minimum, it introduces into the record at any time prior to the imposition of sentence, either: l) an admission; 2) copies of prior judgments of conviction for OAR; or 3) a teletype of the defendant's Department of Transportation driving record. It is anticipated in most cases the state will satisfy the described standard by attaching to the complaint the DOT teletype of the defendant's driving record. The adoption of this standard does not affect any sentence based upon prior OAR convictions that have been established by competent proof other than a DOT teletype, copies of prior judgments of conviction, or an admission."

The court opined that establishing prior OAR convictions by competent proof is not an onerous task. The state may do so through introduction of the reliable documentary proof described above. Alternatively, competent proof can be established through an admission by the defendant or defense counsel. A direct question from either the prosecutor or the circuit court asking whether the defendant admits to the existence of each prior OAR conviction should resolve the issue. "We urge the circuit court to include such a question in its colloquy with the defendant at the plea hearing or sentencing."

OWI - Repeat Offenders - Proof of Prior Convictions

State v. Wideman, No. 95-0852-CR (filed 20 Dec. 1996)

This case concerns the methods of proving that a defendant is a repeat Operating While Intoxicated (OWI) offender. The defendant urged that the more stringent methods for proving that a convicted criminal is a repeater under the habitual criminality statute (Wis. Stat. 939.62) should also apply to proving that a convicted OWI driver is a repeat OWI offender. In a unanimous opinion authored by Chief Justice Abrahamson, the supreme court rejected this approach.

Instead, it concluded that if the accused or defense counsel challenges the existence or applicability of a prior offense, or asserts a lack of information or remains silent about a prior offense, the state must establish the prior offenses for the imposition of the enhanced penalties by presenting "certified copies of conviction or other competent proof before sentencing." See State v. McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982). If an accused admits a prior offense, that admission is competent proof of a prior offense and the state is relieved of its burden to further establish the prior conviction. In this case that admission was made by the defense attorney and the supreme court concluded that defense counsel may, on behalf of the defendant, admit prior offenses for purposes of establishing that the defendant is a repeat OWI offender.

Because the court concluded that there was an admission of the prior offenses in this case, it felt that it did not need to comment further on the other methods by which the state may establish prior OWI offenses. It was persuaded, though, that both the state and defense counsel often are careless in making a record about prior offenses. It urged that both prosecutors and defense attorneys adopt and follow better practices in the sentencing stage of these kinds of cases.

Said the court, the state and defense counsel should, prior to sentencing, investigate the accused's prior driving record. The state should be prepared at sentencing to establish the prior offenses by appropriate official records or other competent proof. Defense counsel should be prepared at sentencing to put the state to its proof when the state's allegations of prior offenses are incorrect or defense counsel cannot verify the existence of the prior offenses. The state and defense counsel should, whenever appropriate, stipulate to the prior offenses. If the state and defense counsel follow these suggestions, there should be no need for either party to request a continuance of a sentencing proceeding to obtain proof of prior offenses.

The court also recommended that before imposing sentence the circuit court make findings based upon the record about the exact dates and nature of prior offenses.

Criminal OWI Prosecution Following Administrative Suspension - Double Jeopardy

State v. McMaster, No. 95-1159-CR (filed 13 Dec. 1996)

The issue in this case is whether the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution prohibits a criminal OWI prosecution subsequent to the administrative suspension of the defendant's operating privilege for having failed a chemical test for intoxication. See Wis. Stat. 343.305(7)-(8).

A unanimous supreme court, in a decision authored by Justice Steinmetz, concluded that the Wisconsin Legislature intended administrative suspension to serve as a civil remedial sanction. The court further concluded that the administrative suspension statute is not so punitive in effect and nature as to render it punishment for purposes of double jeopardy analysis. Accordingly, it concluded that the Double Jeopardy Clause of the Fifth Amendment does not prohibit the criminal prosecution of the defendant for violating the OWI law subsequent to the administrative suspension of the defendant's operating privileges.

Municipal law

Appeals of Special Assessments - Bond Requirement -
Deposit of Cash in Lieu of Bond

Aiello v. Village of Pleasant Prairie, No. 95-1352-FT (filed 19 Dec. 1996)

In 1992 the Village of Pleasant Prairie extended municipal water and sewer services to the petitioners. When the work was completed, the village levied special assessments against their properties. The petitioners appealed these assessments to the circuit court.

Section 66.60(12)(a) of the Wisconsin Statutes provides that a person with an interest in a parcel of property may appeal an assessment "by executing a bond to the village in the sum of $150." In this case the property owners posted a cash deposit of the required amount rather than executing a bond. Nothing in the statute expressly authorizes a cash deposit in lieu of a bond.

The circuit court held that the bond was a jurisdictional requirement which had not been satisfied and that therefore it lacked subject matter jurisdiction to hear the petitioners' appeal. The court of appeals affirmed on the same ground.

The Wisconsin Supreme Court, in a unanimous decision authored by Chief Justice Abrahamson, reversed. It concluded that while section 66.60(12)(a) does not authorize a cash deposit to serve as a bond, another statute permits this procedure. Section 895.346 authorizes a cash deposit in lieu of "any bond or undertaking ... in any civil or criminal action or proceeding." Accordingly, the court held that the property owners' cash deposit in this case was in compliance with section 66.60(12)(a) when correctly read in conjunction with section 895.346.

Torts- Liability Waivers - Exculpatory Contracts

Yauger v. Skiing Enterprises Inc., No. 94-2683 (filed 19 Dec. 1996)

The Yaugers' 11-year-old daughter was killed in a skiing accident. The circuit court dismissed the Yaugers' wrongful death action because the father, Michael, had signed a liability waiver on his daughter's behalf, which also bound his wife. The court of appeals affirmed.

The supreme court reversed in a decision written by Justice Bablitch. The exculpatory contract violated public policy on two grounds.

First, the contract "failed to clearly, unambiguously, and unmistakably explain to [Michael] that he was accepting the risk of [the ski resort's] negligence." For example, nowhere in the form did the word "negligence" appear. Nor did the release define the term "inherent risks in skiing." The inherent ambiguity of the phrase vitiated the waiver's validity.

Second, "the form looked at in its entirety failed to alert the signer to the nature and significance of the document being signed." For example, the one page form was entitled "Application." Nor was there anything "conspicuous about the paragraph containing the waiver."