Author: Hamilton

Yacht Club at Sister Bay Condo Association, Inc. v. Village of Sister Bay (Public/Private Nuisance)

In Yacht Club at Sister Bay Condo Association, Inc. v. Village of Sister Bay (2019 WI 4), the Supreme Court determined that each nuisance-causing event at a town concert venue is a new “event” triggering a new 120-day notice period for filing a claim against the town.

The Village of Sister Bay built an outdoor concert venue near the Yacht Club condominiums. When the village began hosting loud concerts into the night, the Yacht Club filed a written notice of injury against the village, claiming the noise pollution was a nuisance. The notice stated the date of the last concert (Sept. 1, 2015).

The village moved to dismiss the Yacht Club’s suit, arguing that the Yacht Club failed to serve the notice within 120 days of the date when the concerts began (August 2014). Conversely, the Yacht Club argued each new concert is a new “event giving rise to the claim” as required by Wis. Stat. § 893.80(1d)(a).

The Supreme Court unanimously agreed with the Yacht Club that each concert is a new event because, depending on the level and length of noise, not every concert is necessarily a nuisance. Common law of nuisance says that continued nuisances are new events, and in the instant case this interpretation does not conflict with the intent of the notice of claim law to provide governments sufficient information to prepare for litigation.

 

AG Kaul Announces Wisconsin DOJ Appointees

After taking office on Jan. 7, newly elected Attorney General Josh Kaul has announced several appointments within the Department of Justice (DOJ). Appointees include current DOJ employees and alumni, as well as some new faces. Kaul’s appointments include:

  • Deputy attorney general – Eric J. Wilson. Wilson comes to DOJ from Godfrey & Kahn. His previous experience includes work as an assistant U.S. attorney in Chicago and an assistant attorney general in Wisconsin.
  • Chief of staff – Ashley Viste. Viste was Kaul’s campaign manager and as also worked on campaigns for U.S. Sen. Tammy Baldwin, now-Gov. Tony Evers’s Superintendent of Public Instruction campaign, and state Sen. Dave Hansen (D-Green Bay).
  • Communications director – Gillian Drummond. Drummond served as a senior advisor to Kaul during the campaign. Her previous experience includes running communications for Wisconsin Supreme Court Justice Rebecca Dallet’s campaign, the Democratic Party of Wisconsin, Hillary for Wisconsin, and Milwaukee mayor Tom Barrett. Drummond also served as chief of staff to then-minority leader Sen. Chris Larson (D-Milwaukee).
  • Director of the Division of Legal Services – Charlotte Gibson. Gibson has been an assistant attorney general since 2001 and director of the special appeals unit since 2011.
  • Director of the Division of Law Enforcement Services – Tina Virgil. Virgil has worked at DOJ for 26 years, including as director of the Special Investigations Bureau and state fire marshal.

Kaul also announced he will retain Schimel appointees Michelle Viste as director of the Office of Crime Victim Services and Kristen Devitt as the director of the Office of School Safety.

Wisconsin Supreme Court Candidates Finalized

Court of Appeals Judges Brian Hagedorn and Lisa Neubauer have both officially filed to run for the Wisconsin Supreme Court in the April 2019 election. Hagedorn and Neubauer will compete to replace Justice Shirley Abrahamson, who announced in May she will not run for re-election after four terms on the bench. With just two candidates running, there will be no statewide primary in the nonpartisan race.

Gov. Scott Walker appointed Hagedorn to the Court of Appeals in 2015. Hagedorn previously served as chief legal counsel to Walker, assistant attorney general to J.B. Van Hollen, and clerk for recently retired Wisconsin Supreme Court Justice Michael Gableman. Hagedorn was president of the Federalist Society at Northwestern Law School.

Judge Neubauer has served on the Second District Court of Appeals in Waukesha since she was appointed by Gov. Jim Doyle in 2007. She became chief judge in 2015. Prior to serving on the appeals court, Judge Neubauer was a partner at Foley & Lardner and clerked for U.S. Judge Barbara Crabb.

2019-20 Judiciary & Courts Committees

Senate and Assembly leadership have finalized committee assignments for the 2019-20 session, including those committees that will likely be tasked with legal reform bills. Lists of committee members are below.

 

Senate Committee on Judiciary & Public Safety

  • Van Wanggaard (R-Racine), Chair
  • Andre Jacque (R-DePere), Vice-Chair
  • Alberta Darling (R-River Hills)
  • Fred Risser (D-Madison)
  • Lena Taylor (D-Milwaukee)

 

Senate Committee on Insurance, Financial Services, Government Oversight & Courts

  • Dave Craig (R-Big Bend), Chair
  • Duey Stroebel (R-Saukville), Vice-Chair
  • Dan Feyen (R-Fond du Lac)
  • Lena Taylor (D-Milwaukee)
  • Fred Risser (D-Madison)

 

Assembly Committee on Judiciary

  • Jim Ott (R-Mequon), Chair
  • Cody Horlacher (R-Mukwonago), Vice-Chair
  • Jeremy Thiesfeldt (R-Fond du Lac)
  • Rob Brooks (R-Saukville)
  • Ron Tusler (R-Harrison)
  • Samantha Kerkman (R-Salem)
  • Jimmy Anderson (D-Fitchburg)
  • Gary Hebl (D-Sun Prairie)
  • Marisabel Cabrera (D-Milwaukee)

Complaint Filed Seeking to Declare Extraordinary Session Legislation Unconstitutional

A coalition has filed a complaint seeking to deem the legislature’s 2018 extraordinary session legislation unconstitutional and unenforceable. The complaint argues that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The plaintiffs’ coalition includes the League of Women Voters of Wisconsin, Disability Rights Wisconsin, Black Leaders Organizing for Communities, a heavy equipment operator and union member, a former Department of Natural Resources attorney, and a former Department of Justice attorney. Plaintiffs claim they are harmed provisions of the legislation including: new voting requirements, the elimination of illegal guidance documents, the elimination of judicial deference, the requirement that the attorney general deposit settlement funds into the general fund, and the legislature’s authority to intervene in attorney general actions.

However, a recent memo from Wisconsin Legislative Council to Assembly Speaker Robin Vos (R-Rochester) plainly states that convening an extraordinary session does not violate the Wisconsin Constitution. The constitution states that each house of the legislature can determine its own rules for proceedings (Wis. Const. Art. IV § 8). The rules for the 2017-18 session proscribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. Furthermore, the Wisconsin Supreme Court generally defers to the legislature on issues of legislative procedure (see State ex rel. La Follette v. Stitt, 114 Wis. 2d 358 (1983)). The complaint argues that since the rules were enacted by joint resolution, not a bill, they do not have the force of law allowing the legislature to meet according to Art. IV, § 11.

The Joint Committee on Legislative Organization has approved hiring outside counsel to defend the legislation.

Court of Appeals Certification: Clean Wisconsin v. Department of Natural Resources

The Court of Appeals District II submitted a certification this week asking the Wisconsin Supreme Court to take up Clean Wisconsin v. Department of Natural Resources. The issue in this case is whether 2011 Act 21 precludes DNR from considering cumulative environmental impacts in issuing high capacity well permits under Wis. Stat. § 281.34.

DNR argues that Act 21, which clarified that agencies may not enforce requirements unless explicitly permitted by statute or properly promulgated rule, prevents the agency from considering environmental impacts not specifically noted in the statutes. DNR’s argument relies on a May 2016 formal opinion from former Attorney General Brad Schimel.

Clean Wisconsin argues that the 2011 Supreme Court decision Lake Beulah Management District v. DNR still holds. Lake Beulah broadly held that DNR has the authority to preserve waters of the state under the constitutional and statutory public trust doctrines. Since the Supreme Court decided Lake Beulah after the enactment of Act 21 but declined to address the Act’s bearing on the case, a decision in the Clean Wisconsin case would clarify DNR’s authority on high capacity well permits and the general scope of Act 21 in environmental cases.

Supreme Court Decision: Engelhardt v. City of New Berlin (Governmental Immunity)

In Engelhardt v. City of New Berlin (2019 WI 2), the Supreme Court held that the City of New Berlin was negligent when a child drowned on a field trip because the known and present danger exception to governmental immunity applied.

Lily Engelhardt drowned on a field trip with the City of New Berlin Parks and Recreation Department. Lily’s parents had previously informed a New Berlin staff member that Lily could not swim. The Engelhardts sued the city.

Government employees are immune from liability under Wis. Stat. § 893.80(4) unless certain exceptions apply. One exception states that government employees may be held liable if they fail to respond to a known, present, and compelling danger. In this case, the court held that the known and present danger exception did apply because the danger of a non-swimmer drowning on the field trip was compelling and obvious. The park staff failed to properly respond to this danger by taking Lily on the field trip without sufficient supervision, a life jacket, or a swim test.

In a concurring opinion, Justice Dallet (joined by Justices R. Bradley and Kelly) agreed that New Berlin was liable but argued the known and present danger exception did not apply here. Instead, Dallet found the city was not acting in a quasi-legislative or quasi-judicial function when it failed to supervise Lily on the field trip; therefore, governmental immunity did not apply under the language of § 893.80(4).

Court of Appeals Decision: West Bend Mutual Insurance Co. v. Calumet Equity Mutual Insurance Co. (Coverage for Domestic Duties)

In West Bend Mutual Insurance Co. v. Calumet Equity Mutual Insurance Co. (2018AP435), the Court of Appeals District II held that farming work is not a “domestic duty” covered by an insurance policy.

The case arises from an accident where plaintiff David Schaefer’s cows escaped and caused a collision on a nearby road. West Bend insured the person injured in the crash and recovered $114,000 from Schaefer. Calumet insured the property where Schaefer raised his cattle. In the instant case, West Bend and Schaefer sought $114,000 from Calumet, arguing Schaefer was an insured under the Calumet policy.

The Calumet policy, in part, defined “insured” as “persons in the course of performing domestic duties that relate to the ‘insured premises.’” The court ruled that Schaefer was not an insured under the Calumet policy because maintaining his cattle was not a “domestic duty” under the policy. Farming is not related to the management of a private place of residence, so Schaefer’s duties related to the cattle do not fall under “domestic duties” as defined by previous courts. The court declined to expand the term “domestic duties” to include any activity occurring on the insured premises.

Court of Appeals Decision: Turner v. Bounce Back, LLC (Personal Injury)

In Turner v. Bounce Back, LLC (2018AP352), the Court of Appeals District III affirmed that the manufacturer of an inflatable air bag was not liable for injuries sustained when Colin Turner jumped onto it.

Fifty-eight-year-old Turner was injured at a Chippewa Valley music festival when he jumped from a platform onto the airbag, attempting to do a flip and landing on his head. Turner’s blood alcohol content at the time was nearly 40 percent above the legal limit. Turner sued US Airbag, which designed, owned and operated the airbag; N-Flatables, which sewed the airbag; and Chippewa Valley Musical Festival, which was hosting the event.

At the circuit court trial, a jury found that US Airbag was negligent in that the airbag was defective and unreasonably dangerous, but its negligence was not causal. Instead, the jury found Turner’s negligence caused his injuries and accordingly awarded him zero damages. The jury decided N-Flatables was not a manufacturer of the airbag since it only sewed the design created by US Airbag; therefore, N-Flatables could not be held negligent. The jury also declined to find Chippewa Valley negligent.

Turner appealed the circuit court decision, arguing:

  • The jury’s verdict was perverse because it did not find US Airbag causally negligent, it did not rule N-Flatables a manufacturer of the airbag, and it did not award damages to Turner. The appeals court found there was credible evidence to support the jury’s decisions on each of these issues.
  • The circuit court gave improper jury instructions by not defining the term “manufacturer,” giving repetitious instructions regarding Turner’s contributory negligence, and improperly instructing on how/whether to award damages. The court rejected Turner’s arguments because he did not raise them timely and because the instructions were based on statute.
  • The circuit court should have ordered a default judgment or mistrial because of a discovery violation and other errors by the defendants. The appeals court said the circuit court properly dealt with these violations without the need to declare a mistrial.

Overall, the appeals court declined to award Turner a new trial and upheld the jury’s verdicts.

Court of Appeals Decision: John Soletski v. Krueger International, Inc. (Statute of Repose/Independent Contractor Rule)

In John Soletski v. Krueger International, Inc. (2017AP2063), the Court of Appeals District III held that Krueger was not liable for an injury to an independent contractor operating its scissor lift. The court held the plaintiff’s negligence claims were barred under the statute of repose and the rule of employer immunity for independent contractors. Furthermore, the court held that the right to recover costs is not forfeited if costs are filed timely, but the court does not timely resolve objections.

Krueger hired Spectrum Maintenance Services to clean its furniture production facility and allowed Spectrum to use its scissor lift. Two Spectrum employees accidentally drove the lift onto an unmarked ramp, where it tipped over, injuring plaintiff Soletski. Soletski sued Krueger for negligence and violation of Wisconsin’s safe place statute (Wis. Stat. § 101.11).

The court held that the builder’s statute of repose (Wis. Stat. § 893.89) barred Soletski’s safe place claims. (Note WCJC reduced the exposure period in the statute of repose from ten to seven years in 2017 Act 235.) Under the safe place statute, building owners may be held liable for 1) defects inherent in the construction of the building or 2) defects constructed safely but that become unsafe due to improper maintenance. The statute of repose applies only to inherent structural defects. In this case, the court ruled that the ramp was an inherent structural defect because there was no evidence Krueger had improperly maintained the ramp. Therefore, the statute of repose applied and barred Soletski’s safe place claim.

The court further held that Soletski’s claims were barred by the rule that employers are generally not liable for independent contractors’ injuries. The court rejected Soletski’s argument that his case was an exception because Krueger committed an affirmative act of negligence. The court said any potential negligence on Krueger’s part (i.e. failure to warn the Spectrum employees about the ramp) were not affirmative acts, so the exception did not apply.

Finally, the court ruled that Krueger was entitled to costs because it did file its bill of costs within 30 days in accordance with Wis. Stat. § 806.06(4). The court rejected Soletski’s argument that, because of the circuit court clerk’s failure to resolve the objections to the bill of costs within the 30 day period, Krueger violated the time limit.