Under Assembly Bill 672/Senate Bill 495, introduced by Rep. Nancy VanderMeer (R-Tomah) and Sen. Chris Kapenga (R-Delafield), would allow a vehicle rental company to hold a renter or driver of a rented vehicle liable for loss of use of the vehicle under certain circumstances. Under these bills, a rental company may hold a renter or driver of a rented private passenger vehicle liable for loss of use that results from an accident for which the renter or driver is cited or charged with inattentive driving, reckless driving, operating while intoxicated, homicide by negligent operation or intoxicated use of a vehicle, or a failure to yield violation that resulted in bodily harm or death. Loss of use would be calculated using the daily rental rate stated in the rental agreement for the vehicle, multiplied by the number of loss-of-use days, not to exceed 30 days.

Little action was taken on these bills this session. SB 495 only received a public hearing before dying in the Senate, and there was no hearing or committee action on AB 672.

Governor Scott Walker signed Assembly Bill 596/Senate Bill 463 into law as 2015 Wisconsin Act 168 on March 1, 2016. The new statute, introduced by Rep. Adam Jarchow (R-Balsam Lake) and Sen. Duey Stroebel (R-Saukville), changes the term “snow sport” to “alpine sport” and adds “biking” to the list of activities included in the term. WCJC supported these limits on liability for ski area operators from biking accidents.

Previous law imposed proportional liability for an injury or death resulting from participation in a “recreational activity,” including riding a bicycle, on a premises that is open to the public for such purposes. However, under certain circumstances, ski area operators have immunity from liability for injury or death resulting from participation in a “snow sport” within a ski area. Among other changes, the new law reconciles these requirements for bicycling within ski areas.

An individual who participates in a recreational activity assumes the “risks inherent in the recreational activity of which the ordinary prudent person is or should be aware” and must satisfy certain behavioral duties. [s. 895.525, Stats.] If a participant is injured or killed, the owner of the premises may be liable, but the damages that may be collected from the owner are reduced in proportion to the amount of negligence attributable to the participant.

An individual who participates in a snow sport within a ski area assumes certain risks and must satisfy certain duties. Likewise, ski area operators must satisfy certain duties related to safety and to give notice of assumed risks. A ski area operator that satisfies all of the required duties owes no further duty of care to a participant and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in a snow sport.

The act removes biking from the definition of “recreational activity,” defines the risks assumed by individuals who participate in biking, and establishes the duties participants must satisfy. It also establishes the duties of ski area operators related to biking. Under the act, a ski area operator that satisfies all of the required duties owes no further duty of care to a participant who engages in biking and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in an alpine sport.

Under current law, the time a person has to bring an action for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35. Sen. Julie Lassa (D-Stevens Point) and Rep. Evan Goyke (D-Milwaukee) introduced Senate Bill 262/Assembly Bill 348 which would provide a three-year reviver window for plaintiffs to file childhood sexual abuse claims, regardless of the previous expiration of the statute of limitations.

The legislation had bipartisan support, with Republican Reps. Horlacher, A. Ott, Neylon, Rohrkaste, and Sen. Olsen signing on as co-authors. But both bills died in committee. WCJC opposed the legislation.

For over 100 years, the Wisconsin Supreme Court has consistently rejected reviver statutes as unconstitutional. The court subscribes to the view that the expiration of a statute of limitations vests a property right in a defendant. The resurrection of a time-barred claim therefore amounts to a taking of property without due process of law.

Despite the appalling nature of these abuses, WCJC agrees with the court’s rationale and believes the proposed reviver statute would lay a foundation for suspending other statute of limitations. This, in turn, brings uncertainty and unfairness to our civil justice system.

For more on the constitutional issues arising from reviver statutes, see this legal memo provided in the context of prior Wisconsin reviver legislation.

Assembly Bill 95, authored by Rep. Jeremy Thiesfeldt (R-Fond du Lac), and Senate Bill 76 , authored by Sen. Stephen Nass (R-Whitewater), sought to change the interest rate for pre- and post- judgment interest for verdicts in small claims court. AB 95 would revise the formula created in 2011 Wisconsin Act 69 back to the pre-Act 69 rate of 12 percent per year.

WCJC opposed the legislation as it would partially repeal a top priority, namely 2011 Wisconsin Act 69. The bill died in the Senate, but we anticipate proponents will next session again push for a change to interest rates on judgments in small claims action.

While introduced in March 2015, the Assembly Committee on Judiciary passed AB 95, 5-4 in January 2016. The Assembly passed the legislation via a voice vote in February with an amendment changing the rate to 8 percent. Though a Senate hearing was held on the bill, no further action occurred in the Senate.

Under current Wisconsin law, plaintiffs who win favorable verdicts are usually entitled to recover interest on the monetary judgments awarded to them. There are two types of interest. There is post-judgment interest, which is meant to compensate the plaintiff for loss of the use of the money while a defendant appeals an unfavorable judgment. Post-judgment interest accrues from the time the judgment is made until the time the judgment is paid. There is also pre-judgment interest, which accrues from the time the plaintiff makes an offer of settlement until the settlement is paid, provided the judgment amount is not less than the settlement amount.

Prior to 2011, pre- and post- judgment interest rates were set at 12 percent. Because appeals or settlement agreements and payment can take time, plaintiffs could receive a significant windfall due to the high interest rate. 2011 Senate Bill 14 signed into law as 2011 Act 69 changed the interest formula from 12 percent to the prime rate set by the Federal Reserve Board plus one percent. This ensures that plaintiffs do not receive a windfall while also ensuring that defendants pay a reasonable interest rate.

Governor Walker announced he would take applications to fill the vacancy on the court, and that applications would be due October 2. Prior to Justice Crooks’ passing, three judges had jumped into the race to fill his spot in 2016: District I Court of Appeals Judge Rebecca Bradley, Milwaukee County Judge Joe Donald, and District IV Court of Appeals Judge JoAnne Kloppenburg.

Governor Walker announced on October 9 he will appoint District I Court of Appeals Judge Rebecca Bradley.

About Judge Rebecca Bradley:

Judge Rebecca Bradley was appointed to serve on the Wisconsin Court of Appeals by Governor Scott Walker in May 2015. She previously served as a Milwaukee County Circuit Court Judge since 2012, winning her first election in 2013. Judge Bradley would be the first to bring judicial experience on both the trial court and intermediate appellate court benches to the Wisconsin Supreme Court. Before answering a calling to public service, she practiced law for over 16 years.

Born and raised in the City of Milwaukee, Judge Bradley graduated from Divine Savior Holy Angels High School and then attended Marquette University where she earned an Honors Bachelor of Science in Business Administration and Business Economics in 1993. She earned her Juris Doctor from the University of Wisconsin Law School in 1996.

Judge Bradley began her legal career as an attorney with the law firm of Hinshaw & Culbertson, where she represented physicians in malpractice lawsuits and defended individuals and businesses in product liability and personal injury litigation and appeals. She moved to the firm of Whyte Hirschboeck Dudek, where she concentrated her practice in commercial, information technology and intellectual property litigation and transactions, co-chaired the firm’s Technology Law Group, and worked as an American Arbitration Association Arbitrator. Judge Bradley also served as Vice President of Legal Operations for an international software company.

In 2012, Judge Bradley was recognized as one of Milwaukee’s Leading Lawyers in Litigation, Business Law, and Internet Law by M Magazine. In 2010 she received the Women in Law Award from the Wisconsin Law Journal and was named a “Rising Star” Attorney on the 2010 and 2008 Wisconsin Super Lawyers list.

A leader in the legal community, Judge Bradley served as Chairman of the State Bar’s Business Law Section and co-authored the Wisconsin Business Advisor Series chapter on Internet law. She continues to serve on the Wisconsin State Advisory Committee to the U.S. Commission on Civil Rights and on the Board of Governors of the St. Thomas More Lawyers Society.

Judge Bradley also served as President of the Milwaukee Lawyers Chapter of the Federalist Society, an organization founded on the principle that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

Devoted to her community, Judge Bradley volunteered her services as an attorney to families of developmentally disabled youth in guardianship proceedings. She continues to serve on the Board of the Milwaukee Tennis & Education Foundation, which provides opportunities for central-city children to play tennis, improve academic performance and develop life skills and values. In 2012, Judge Bradley completed a six-year term with the Milwaukee Forum, a diverse group of leaders whose dialogue and involvement is designed to enhance greater racial understanding and improve the well-being of the Milwaukee community. Judge Bradley serves as a member of the Comprehensive Approaches to Youth who have been Sexually Exploited or CAYSE Committee, and continues to speak out in the community on the evil of human trafficking.