In Joan A. Kelly v. Amanda E. Berg (2017AP2033), the Court of Appeals District III, based on policy concerns, denied double damages to a plaintiff injured by a dog bite.

In 2015, WCJC supported reforms to Wisconsin’s long standing dog bite liability statute (Wis. Stat. § 174.02(1)(b)) in 2015 Act 112. Act 112 clarified that owners are only be liable for double damages for injuries caused by their dog if a dog bites a person with “sufficient force to break the skin and cause permanent physical scarring or disfigurement” if the owner knew the dog had previously done so. That is, both bites must break the skin and cause permanent scarring or disfigurement, and the owner must have known of the first bite.

Under prior law, dog owners were liable for double damages for dogs that cause injury to people, domestic animals, or property if the dog had previously done so. The prior law did not take into account the severity or type of the damage done. For instance, a dog could cause minor property damage, which would count as the first bite, and then cause physical damage to an individual on the second bite. The owner would be liable for double damages for the second incident despite the innocuous nature of the first damage.

This case occurred before Act 112, so plaintiff Kelly sought double damages when her neighbor Berg’s dog bit her. Kelly claimed Berg’s dog had caused previous “injury to property” by digging holes under her fence, and that Berg’s knowledge of this previous injury entitled Kelly to double damages.

However, the appeals court limited Berg’s liability under the previous Wis. Stat. § 174.02(1)(b) on public policy grounds. The court mentioned several factors limiting liability that applied in this case:

1. The injury to Kelly was too remote from Berg’s negligence because Berg simply failed to predict her dog’s extraordinary, unprovoked attack.
2. The recovery of double damages would be out of proportion and an unreasonable burden related to Berg’s limited negligence.
3. The recovery of double damages would have no “just stopping point” because any minor damage would be considered attributable to Berg’s negligence.

Although owner Berg was not held liable for double damages under the 2013-14 statutes that govern this case, the case demonstrates the importance of Act 112 reforms in limiting these types of cases that had the potential to hold owners liable for dog bite injuries that are unpredictable and out of their control.

In M. Samir Siddique v. UW Board of Regents (2017AP1443), the Court of Appeals District I held that a plaintiff is not considered a “prevailing party” entitled to attorney fees if the defendant voluntarily changes its conduct.

Siddique received sanctions for misconduct from UW Milwaukee after violating university policy in an incident involving student government organizations. Siddique appealed to the Board of Regents. After the Board of Regents upheld the UW Milwaukee decision, Siddique filed an action in circuit court. While the circuit court case was pending, Siddique had graduated, so UW Milwaukee voluntarily agreed to dismiss its discipline decision.

The issue in the instant appeal is whether Siddique is entitled to attorney fees as a “prevailing party” under the Wisconsin Equal Access to Justice Act (WEAJA). The WEAJA states that circuit courts must award fees to the “prevailing party in any action by a state agency” (Wis. Stat. § 841.245(3)).

Citing federal cases dealing with a federal law similar to the WEAJA, the appeals court ruled that a party is not considered a “prevailing party” if the defendant voluntarily changes its conduct outside of the court. In this case, UW Milwaukee decided to dismiss the discipline decision before the trial court decided on the merits of the case. Thus, there was no “judicially sanctioned change in the legal relationship” (see Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources) between the university and Siddique, and Siddique was not a “prevailing party” entitled to fees.

In Damien Berg v. Bradley Maxfield, M.D. (2017AP1448), the Court of Appeals District IV upheld summary judgment dismissing patient Berg’s medical negligence claim against Dr. Maxfield.

Dr. Maxfield performed a voiding cystourethrogram (VCUG) procedure on Berg but did not interpret any remarkable results from the images. Berg consulted another doctor, who found a mass of plastic tubing on Berg’s bladder, which had to be surgically removed.

Berg filed a negligence action against Dr. Maxfield, believing initially that Dr. Maxfield failed to remove plastic tubing during the VCUG. However, in depositions, Dr. Maxfield and the two doctors who found the tubing and performed Berg’s removal surgery all testified that the tubing found in Berg could not have been from the VCUG Dr. Maxfield performed.

When Dr. Maxfield moved for summary judgment, Berg asked for more time to investigate Dr. Maxfield’s liability based on the previous deposition testimony. Berg also requested permission for an additional expert. The appeals court denied Berg’s claims and upheld the circuit court’s grant of summary judgment in favor of Dr. Maxfield, stating that Berg could reasonably have discovered previously that the tubing found in his bladder was not from Dr. Maxfield’s negligence in performing the VCUG. Furthermore, Berg cited no legal authority that would grant him more time to investigate other potential negligence by Dr. Maxfield.

 

In Veritas Steel, LLC v. Lunda Construction Co. (2017AP822), the Court of Appeals District IV maintained a narrow application of the “de facto merger” and “mere continuation” exceptions to Wisconsin’s general rule against successor liability.

Construction contractor Lunda had secured a $16 million judgment against steel fabricator PDM Bridge, LLC. PDM also owed other lenders approximately $76 million. Those lenders used a series of transactions to acquire PDM’s assets, which were ultimately obtained by the entity Veritas. PDM could not satisfy Lunda’s $16 million judgment, and Lunda sought the instant successor liability claim against Veritas.

Relying on Wisconsin Supreme Court precedent in Fish v. Amsted Indus. Inc., the court of appeals dismissed Lunda’s claim for an exception to successor liability because there was not evidence showing identity of ownership between the original and successor entity. Under Fish, exceptions to successor liability include de facto mergers and cases where “the purchaser corporation is merely a continuation of the seller corporation.” Fish stated that these exceptions apply when there is an identity of ownership, evidenced by a transfer of ownership for stock or a continuity of owners between the selling and purchasing entities.

Lunda argued that an identity of control could show a mere continuation from seller to purchaser, establishing successor liability. In this case, Lunda said the purchasing entity had pre-acquisition control over seller PDM; therefore, the transaction was a mere continuation. The court acknowledged the tension between its narrow reading of the de facto merger and mere continuation exceptions in Fish and the ability of entities to achieve what is essentially a merger or continuation without satisfying the strict “identity of ownership” requirement. However, the court said it is bound by Fish, and only the Supreme Court could change this interpretation of the exceptions. Since Lunda failed to establish an identity of ownership between Veritas and PDM, the court dismissed its successor liability claim based on the mere continuation and de facto merger exceptions.