Category: Courts of Appeals

Nutt v. Union Pacific Railroad Co. (Driver Negligence)

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In Nutt v. Union Pacific Railroad Co. (2018AP695), the Court of Appeals District III held that Union Pacific was not liable for injuries to a driver struck at a railroad crossing.

A Union Pacific train struck Jordan Nutt at a crossing in Baldwin, Wisconsin. The crossing had a stop sign and a retroreflective railroad crossing sign to warn drivers of approaching trains. Nutt failed to yield to the approaching train and did not come to a complete stop at the stop sign. The train conductors appropriately sounded the horn and applied the emergency brake but could not stop in time to avoid hitting Nutt, who was rolling through the stop sign and onto the tracks. Nutt filed the instant negligence claims against Union Pacific.

First, Nutt argued Union Pacific should have installed flashing lights and gates at the crossing, instead of just the railroad crossing sign. However, the court ruled that, because the sign was installed using federal funds, the Federal Railroad Safety Act preempted Nutt’s claim.

Second, Nutt argued Union Pacific illegally installed the stop sign at the crossing. According to Nutt, without the stop sign, he would not have slowed to a rolling stop and would have made it through the intersection in time to avoid the train. The court ruled that there was no evidence that Union Pacific installed the stop sign. Furthermore, there was not evidence that the accident would have occurred if Nutt had followed the law and came to a complete stop at the stop sign.

Finally, Nutt argued Union Pacific’s negligent maintenance of the vegetation and roadbed at the crossing caused the accident. The court found no evidence that Nutt’s view of the tracks was obstructed by vegetation, nor that Union Pacific violated Wis. Stat. § 195.29(6), requiring 330 feet of vegetation cleared along the tracks in each direction. The court also denied Nutt’s claim that Union Pacific’s roadbed maintenance created an illegal and dangerous “hump” that contributed to the accident.

Overall, the court found that summary judgment was appropriate under Wisconsin’s comparative negligence statutes (Wis. Stat. § 895.045(1)) because Nutt’s negligence clearly exceeded Union Pacific’s.

Lee Quality Home Care LLC v. DHS (DHS Authority)

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In Lee Quality Home Care LLC v. DHS (2017AP1216), the Court of Appeals District IV held that the Wisconsin Department of Health Services (DHS) has the authority to recoup payments from a personal care provider for services performed by workers not trained according to DHS rules.

First, the court affirmed that the plaintiff Lee Quality Home Care did not train its workers according to DHS rules (Wis. Admin. Code § 105.17(1n)). Lee Quality argued that guidance documents from DHS relaxed personal care worker training requirements, but the court ruled that these documents did not change the administrative rules.

Because Lee Quality had not trained its workers according to DHS rules, the court held that DHS had the authority to recover Medicaid reimbursement payments from Lee Quality. Wis. Stat. § 49.45(2)(a)10.a. and Wis. Admin. Code § 108.02(9)(a) state that DHS can recover “improper” payments from providers. Federal code defines “improper payment” as a payment “made in an incorrect amount under statutory, contractual, administrative, or other legally applicable requirement” (42 C.F.R. § 431.958). The court determined that DHS’s payments to Lee Quality were “improper” because Lee Quality failed to comply with DHS’s “legally applicable” training requirements.

Among other arguments, Lee Quality contended that DHS cannot recover payments for services actually provided and that the payments were not “improper.” Lee Quality said Wis. Admin. Code § DHS 105.17(4)(c) provides that DHS give notice to noncompliant providers requiring providers to correct the noncompliance by a certain date. Instead of recollecting the Medicaid reimbursement payments, DHS should have allowed Lee Quality the opportunity to comply. The court rejected these arguments, allowing DHS to recover reimbursement payments to Lee Quality’s providers for services that they had performed.

Other Medicaid reimbursement cases regarding DHS authority are also making their way through Wisconsin courts. The Court of Appeals District III held in 2018 case Newcap, Inc. v. DHS (2017AP1432) that DHS has the authority to recoup Medicaid reimbursement payments for services provided when providers fail to maintain required records. However, Newcap did not have to repay DHS because the specific records in its case were not required by statutes or DHS rules.

In Kathleen Papa v. DHS, the Court of Appeals District II will decide whether DHS has the authority to recover Medicaid reimbursement payments for services provided when the provider fails to follow documentation requirements. The Great Lakes Legal Foundation and Wisconsin Manufacturers & Commerce have filed a joint amicus brief in this case.

State of Wisconsin ex rel. Annette Flynn v. Kemper Center, Inc. (Public Records)

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In State of Wisconsin ex rel. Annette Flynn v. Kemper Center, Inc. (2017AP1897), the Court of Appeals District II held that private corporation Kemper Center, Inc. is not a “quasi-governmental corporation” subject to the Wisconsin Public Records Law.

Kemper Center is a private corporation that leases property from Kenosha County and operates and maintains the property as a public park. Kenosha County provides some grants to Kemper Center, and other revenues come from rentals and user fees charged by Kemper Center.

Kenosha resident Annette Flynn filed a public records request for certain disclosures from Kemper Center. The issue before the court was whether Kemper Center is a “quasi-governmental corporation” under the definition of “authority” in Wis. Stat. §19.32(1), requiring it to disclose records to Flynn.

Citing factors from a previous Supreme Court decision that determined Beaver Dam Area Economic Development Corporation was a quasi-governmental corporation, the appeals court held that Kemper Center is not a quasi-governmental corporation because:

  1. Despite receiving grants from the County, Kemper Center is mostly funded by sources other than taxpayer dollars.
  2. While Kemper Center’s operation of the park does provide a public benefit, it does not provide an exclusively governmental function.
  3. Kemper Center does not have a public appearance of being governmental in nature. The court determined it is clear that the County owns the park, but Kemper Center, Inc.’s operation of the park does not appear governmental.
  4. The County does not have a significant degree of control over the Kemper Center operations.

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

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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.

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

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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)

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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)

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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.

Court of Appeals Decision: Danielle Jackson v. Diane Burczyk (Governmental Immunity)

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In Danielle Jackson v. Diane Burczyk (2018AP65), the Court of Appeals District II held that governmental immunity applied to correctional facility employees when a kettle tipped, spilling boiling water that injured Danielle Jackson, who was a cook at the facility.

Jackson argued that exceptions to governmental immunity applied in her case. The first exception states that government employees may be held liable if they fail to perform a ministerial duty. The court determined that fixing the kettles was a discretionary duty, so the first exception did not apply.

The second exception states that government employees may be held liable if they fail to respond to a known, present, and compelling danger. Although employees knew the kettles needed to be repaired, the court determined that the danger of tipping kettles was not so immediate that the second exception would apply.

In a dissent, Judge Reilly argued that the second exception for known and present danger does apply. Reilly further questioned whether the majority would have reached the same decision had Jackson not been a prisoner at the facility.

Court of Appeals Decision: Town of Forest v. PSC (Wind Farm Application)

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In Town of Forest v. PSC (2018AP367), the Court of Appeals District III declined on the grounds of claim preclusion Forest’s petition for judicial review of the Public Service Commission’s (PSC) final approval of a wind farm application. The court also declined to hold PSC in contempt of court following a previous circuit court order.

The issue arose when PSC approved Highland Wind Farm, LLC’s application to construct a wind energy facility partly located in Forest. The approved application included provisions that:

  1. Highland need only comply with noise limits in Wis. Amin. Code ch. PSC 128 95 percent of the time.
  2. Highland would obligate itself to a lower nighttime noise limit for six residences in the area with sensitivities to sound.
  3. Highland would implement a curtailment plan to reduce noise from the wind farm to levels below limits in PSC 128.

The Town of Forest petitioned for judicial review of the approved application. The reviewing circuit court ordered PSC to 1) hold a hearing on adopting a percentage compliance standard for noise limits in PSC 128; and 2) explain why it chose a lower nighttime noise limit for those six specific residences and determine whether to apply it to any other residences. The circuit court approved the curtailment plan.

In response to the circuit court order, PSC eliminated the 95 percent compliance provision altogether and declined to hold a hearing. PSC also eliminated the lower nighttime noise limits for any residences. With these amendments, PSC issued a final decision.

In the instant case, the Town of Forest sought to hold PSC in contempt of court for failing to comply with the circuit court orders and sought judicial review of the final PSC decision. The Court of Appeals District III held that PSC was not in contempt of court. Although PSC did not hold a hearing on the percent compliance provision nor did it explore extending the lower nighttime noise limit, PSC complied with the intent of the court order by altogether removing these two provisions that were not supported by substantial evidence and facts. On the question of judicial review, the appeals court declined the town’s petition on the grounds of claim preclusion. The court stated the town should have raised its argument that the curtailment plan is not allowed under PSC 128 in the judicial review of the first PSC application approval.

Court of Appeals Decision: Jacqueline Wise v. LIRC (Worker’s Compensation)

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In Jacqueline Wise v. LIRC (2017AP2191), the Court of Appeals District II overturned an LIRC decision denying worker’s compensation for procedures related to the patient’s pre-existing condition.

Jacqueline Wise slipped and fell on ice in the parking lot of her workplace, causing pain in her hips that prevented her from working at the caregiving facility. Wise attempted to return to work at several points, but the pain persisted. Eventually, she underwent a left hip replacement. The subsequent pressure on her right hip after the surgery led to her undergoing a right hip replacement as well. The pressure on her lower back from the left and right hip replacements caused further pain, which required more treatments. Wise filed a worker’s compensation claim.

The Labor and Industry Review Commission (LIRC) determined that Wise’s fall at work temporarily aggravated pre-existing avascular necrosis and awarded reimbursements for treatment of the initial injury. However, LIRC said the temporary aggravation was resolved before Wise underwent hip replacement surgery, so the commission denied permanent disability compensation and compensation for her subsequent procedures.

The appeals court overturned LIRC’s decision, ordering the lower court to appropriate compensation to Wise for both her initial injury and subsequent surgeries. The court said LIRC’s decision was not “supported by credible and substantial evidence” (Wis. Stat. § 102.23(6)) because it relied on a report that the court determined misinterpreted the record.

In a dissent, Judge Brian Hagedorn (who is running for state Supreme Court) criticized the majority for substituting its own judgment regarding the reliability of the supposedly misinterpreted report for LIRC’s. While he might have agreed with the facts pointed out by the majority, Hagedorn agued that it is not the court’s place to reweigh the facts LIRC used to support its decision, according to Wis. Stat. § 102.23(6).