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Verkler v. YRC, Inc. (Civil Negligence)

Posted on by Hamilton

In Verkler v. YRC, Inc. (2018AP1531), the Court of Appeals District I ruled against Allstate Property & Casualty Insurance Co. in a civil negligence action brought after a car accident.

Allstate’s insured Victoria Southern crashed into a truck in YRC, Inc.’s driveway. Southern initially told law enforcement that she had been lost and was looking for an address but blacked out and could not remember the events prior to her accident. However, Southern reversed her testimony at trial, stating she no longer believed she blacked out before the accident. The YRC truck driver told law enforcement and testified at trial that Southern had caused the accident when she made a U-turn into the driveway.

In the civil trial that followed, a jury found that Southern was negligent. Allstate appealed the verdict and argued the circuit court erred in denying its request for a jury instruction on the emergency doctrine.

The emergency doctrine excuses drivers from negligence in an emergency they did not cause if they react to the emergency in a way that an ordinarily prudent person would. At trial, Allstate asked the court to give the jury an instruction on the emergency doctrine but the court declined. The court of appeals upheld the trial court’s denial of Allstate’s request. The court agreed that the emergency doctrine did not apply in this case because there was no evidence of an emergency, as Southern could not clearly recall the accident.

The appeals court also found credible evidence supported the jury’s verdict that Southern was negligent. There was evidence for the jury to find that Southern breached her duty of care by failing to see the truck with its lights on in the YRC driveway, causing the accident to occur in the driveway, making a U-turn in the driveway, and looking for addresses when she was lost instead of focusing on the road.

Parsons v. Associated Banc-Corp (WOCCA and Negligent Training & Supervision)

Posted on by Hamilton

In Parsons v. Associated Banc-Corp (2018AP2329), the Court of Appeals District I upheld the dismissal of plaintiffs’ claims against their bank for violation of the Wisconsin Organized Crime Control Act (WOCCA) and for negligent training and supervision.

The Parsons filed this case regarding a home equity loan and construction loan they obtained through the bank. The trial court dismissed the Parsons claims and the appeals court affirmed.

The appeals court declined to overturn what the Parsons argued were several procedural errors by the trial court. On the WOCCA claim, the appeals court agreed with the trial court that the Parsons had not established that the bank’s loan officer had engaged in a pattern of racketeering; therefore, the bank had no liability under WOCCA. On the negligent training and supervision claim, the court found that the bank did not have a duty of care to the Parsons under the loan contract, so the bank was not liable for the loan officer’s actions. Finally, the court held that the trial court was not required to determine damages when the Parsons failed to establish the bank’s liability.

Stroede v. Society Insurance (Duty of Care to Trespassers)

Posted on by Hamilton

*This case is recommended for publication.

 

In Stroede v. Society Insurance (2018AP1880/2018AP2371), the Court of Appeals District I found the defendant immune from liability for a trespasser’s injury because the defendant was a “lawful occupant” on the premises where the incident occurred.

Plaintiff David Stroede sustained head injuries when, after becoming too intoxicated, he was escorted out of Railroad Station Bar by employee Jacob Tetting. Stroede filed this negligence claim against Tetting and his insurer West Bend Mutual and Railroad and its insurer Society Insurance.

Wis. Stat. § 895.529 provides that a “possessor of real property” does not have a duty of care to trespassers unless the possessor acts “willfully, wantonly, or recklessly.” The circuit court agreed with the defendants’ arguments that Stroede was a trespasser at the time of the incident since Railroad staff had ordered him out of the bar. At issue on appeal was:

  1. Whether Stroede had adequately stated a claim of wanton, willful or reckless conduct, allowing his claims against Tetting to proceed even though he was trespassing.
  2. Whether Tetting was an “other lawful occupant” under the definition of “possessor of real property” in § 895.529, granting him immunity from liability for Stroede’s injuries.

First, the appeals court found that Stroede did not allege a claim of wanton, willful or reckless conduct. Instead, Stroede’s claim alleged negligence and did not demonstrate that Tetting intentionally caused him harm. The appeals court found the circuit court properly denied Stroede’s motion to amend his complaint to include a claim of wanton, willful or reckless conduct.

Second, the appeals court found that Tetting was an “other lawful occupant” of Railroad premises at the time of the incident. The court concluded occupancy in the context of § 895.529 to mean “lawful presence,” and Tetting was lawfully present at Railroad when he removed Stroede. Since Tetting was a “lawful occupant,” he had no duty of care to trespasser Stroede under § 895.529.

Under the court of appeals decision, neither Tetting nor Railroad was liable for Stroede’s injuries.

 

Fankhauser v. Hestad (Damages Award)

Posted on by Hamilton

In Fankhauser v. Hestad (2019AP110), the Court of Appeals District III upheld a $500,000 damages award against a garbage collector who was driving on a customer’s bridge when it collapsed.

Curtis Hestad, an employee of Allied Waste Services, drove an Allied vehicle onto the Fankhausers’ property. The Fankhausers had instructed Allied to use the west entrance to their property when collecting their garbage, instead of the east entrance. Access from the east entrance required crossing a bridge on the Fankhausers’ property. When Hestad drove to pick up the Fankhausers’ trash for the first time, his GPS took him to the east entrance, and he crossed the bridge. The bridge collapsed under the weight of Hestad’s truck.

The Fankhausers sued Hestad and Allied for negligence, and a jury awarded them $500,000 in damages. Hestad and Allied filed counterclaims for negligence and violation of the safe place statute, but the circuit court dismissed the counterclaims. Hestad and Allied appealed both the jury award and the dismissal of their counterclaims.

The appeals court upheld the dismissal of Hestad and Allied’s counterclaims, finding that Hestad was a trespasser on the Fankhausers’ property when the bridge collapsed. Wisconsin case law has established that landowners are not liable to trespassers, nor does the safe place statute protect trespassers. The court found Hestad to be a trespasser because the Fankhausers had specifically instructed Allied – and Allied had instructed Hestad – to use the west entrance to their property. Since Hestad did not have permission to enter via the east entrance, the court considered him a trespasser and dismissed the negligence and safe place statute claims.

The appeals court also upheld the jury award of $500,000 to the Fankhausers. The appeals court found:

  • The circuit court property denied the defendants’ motion for a directed verdict because there was sufficient evidence for the jury to determine the precollapse value of the bridge.
  • The $500,000 award was not excessive because there was credible evidence to support the award (i.e. replacement cost, lost property value without a replacement, the Fankhausers’ loss of privacy and loss of recreational and access uses of the bridge).
  • The circuit court properly denied cross-examination questions the defendants asked the Fankhausers about their maintenance of the bridge. The court determined that such questions would have confused the jury, since the Fankhausers’ negligence in bridge maintenance was not at issue.
  • The Fankhausers’ expert on replacement cost used reliable principles and methods.
  • The circuit court did not need to include separate questions on the special verdict for different categories of damages.

For these reasons, the appeals court affirmed the circuit court’s dismissal of Hestad and Allied’s counterclaims and upheld the jury award of $500,000 to the Fankhausers.

 

 

ATRA Releases 2019-20 Judicial Hellholes Report

Posted on by Hamilton

The American Tort Reform Association recently released its 2019-20 Judicial Hellholes report. The annual report highlights some of the worst-ranking civil justice climates in the country.

Topping the report this year are Philadelphia, California and New York City. Wisconsin neighbors Illinois and Minnesota also made the top ten list, at #5 and #9, respectively.

The report also takes a closer look at three civil justice topics growing across the country: the expansion of public nuisance law and locality litigation, increased employment liability and reduction of arbitration, and growth of privacy and security litigation.

Wisconsin was lauded in last year’s Judicial Hellholes report for positive civil justice reforms, including 2017 Wisconsin Act 235 and the Wisconsin Supreme Court’s Mayo decision. Act 235 – authored by Republican Sens. Tom Tiffany (Hazelhurst) & Dave Craig (Big Bend) and Reps. Mark Born (Beaver Dam) & John Nygren (Marinette) – included landmark reforms to Wisconsin’s rules of procedure regarding discovery and class actions, as well as a nationally recognized, groundbreaking requirement that litigation funding deals be disclosed in civil cases.

ILR Names Top 10 Most Ridiculous Lawsuits of 2019

Posted on by Hamilton

The U.S. Chamber Institute for Legal Reform recently released its list of Most Ridiculous Lawsuits of 2019. Number one this year was a lawsuit against Blistex, alleging that the packaging of their lip balm prevented the plaintiff from accessing the lip balm left at the bottom of the tube. Also making the top ten this year were silly lawsuits over food labels, the TV show Dexter, the video game Fortnite, and an online review of an animal hospital.

Read the full list.   

Oral Argument Preview: Correa v. Woodman’s Food Market (Personal Injury)

Posted on by Hamilton

On Jan. 21, the Wisconsin Supreme Court will hear oral arguments in Correa v. Woodman’s Food Market, which will address the standards of proof for establishing constructive notice of a hazard and the determinations a jury may make from video surveillance in premises liability cases. 

 

Facts & Lower Court Decisions

In this case, plaintiff Jose Correa slipped and fell on an unidentified substance in a Woodman’s store and subsequently filed negligence and safe-place-statute (Wis. Stat. § 101.11(1)) claims against Woodman’s. A trial court found Woodman’s negligent and awarded Correa nearly $170,000 in damages. Woodman’s appealed, arguing Correa’s evidence that Woodman’s had constructive notice of the spill was speculative.

The Court of Appeals found that Correa could not prove the spill by which he was injured existed for a long enough time period to establish the store was negligent. Video footage before the accident did not show a spill happening and could not identify any substance on the floor of the store. Because Correa lacked sufficient evidence, the appeals court ruled in favor of the store. 

 

Issues Presented at Supreme Court

When the Supreme Court hears oral arguments this month, justices will revisit the court’s position in Kochanski v. Speedway SuperAmerica (2014 WI 72).  Kochanski similarly dealt with whether juries can draw reasonable inferences from existing video surveillance in premises liability cases. In Correa, the Supreme Court will review whether the Court of Appeals improperly expanded the Kochanski holding and will generally revisit its position on the role of video surveillance in constructive notice in premises liability claims.

Supreme Court Accepts Agency Rulemaking Case Papa v. DHS

Posted on by Hamilton

The Wisconsin Supreme Court recently accepted five new cases, including one that will again address agency rulemaking, following the court’s recent decision in Lamar Central Outdoor. The newly accepted case, Papa v. DHS, will determine whether a Wisconsin Department of Health Services (DHS) policy in DHS’s Medicaid Provider Handbook has the “force of law” (Wis. Stat. § 227.01(13)) and should be promulgated as an administrative rule and subject to judicial review.

Medicaid-certified nurse Kathleen Papa and Professional Homecare Providers, Inc. (PHP) filed this lawsuit against DHS regarding Topic #66 in DHS’s Medicaid Provider Handbook. Topic #66 states that Medicaid providers must “meet all applicable program requirements” for reimbursement. If providers fail to meet all requirements, DHS can recoup payments from the providers. Papa and PHP argued that Topic #66 was an illegal unpromulgated administrative rule and that the policy exceeded DHS’s explicit statutory authority under Wis. Stat. Ch. 227.

The Supreme Court will review the Court of Appeals finding that Topic #66 was not an administrative rule, and thus Papa and PHP could not obtain a declaratory judgement via Wis. Stat. Ch. 227 judicial review of administrative rule proceedings. Additionally, the Supreme Court will review whether Topic #66 – if not a rule – is a guidance document also subject to judicial review under Ch. 227.

Lamar Central Outdoor, LLC v. Division of Hearings & Appeals (Rulemaking Requirements)

Posted on by Hamilton

In the Wisconsin Supreme Court’s first decision affecting the business community in the 2019-20 term, the court issued an important opinion on agency rulemaking in Lamar Central Outdoor, LLC v. Division of Hearings & Appeals (2019 WI 109). The Supreme Court held that the Department of Transportation (DOT) was required to promulgate a rule when it changed its interpretation of statutes regarding nonconforming billboards.

The billboard in this case was erected on a state highway in 1991. When the highway became an interstate in 1996, the sign was deemed legal but nonconforming according to state law. Lamar acquired the legal, nonconforming billboard in 1999. In 2012, Lamar sought a permit from DOT to remove vegetation obstructing the sign. From the photographs in Lamar’s permit application, DOT recognized that the sign had been enlarged by extensions in violation of Wis. Admin. Code § TRANS 201.10(2)(e). Although Lamar had removed the extensions, DOT determined that the previous existence of illegal enlargements to the billboard caused it to lose its legal, nonconforming status. DOT ordered Lamar to remove the sign, and Lamar appealed.

The Supreme Court decided the case in favor of Lamar on the grounds that rulemaking requirements in Wis. Stat. Ch. 227 require DOT to promulgate a rule before it changed its interpretation of the billboard nonconforming use statutes.

DOT argued that under Wis. Stat. § 84.30(11), it could order Lamar to remove the billboard because it temporarily exceeded its legal size. However, DOT had previously granted legal, nonconforming sign owners 60 days to cure violations, as Lamar did here. Lamar argued that, according to Ch. 227 rulemaking requirements, DOT could not change its interpretation of whether § 84.30(11) allows legal, nonconforming sign owners a right to cure without promulgating an administrative rule. Under Ch. 227, DOT must promulgate as a rule “each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute” (§ 227.10(1)).

The court agreed with Lamar that Ch. 227 required DOT to promulgate a rule before it interpreted § 84.30(11) as not allowing legal, nonconforming sign owners a right to cure. The court rejected DOT’s arguments as follows:

  1. DOT argued its order for Lamar to remove the sign was a contested case decision exempt from rulemaking under § 227.10(1). (“An interpretation of a statute made in the decision of a contested case…does not render it a rule or constitute specific adoption of a rule and is not required to be promulgated as a rule.”) The court said that though § 227.10(1) does not require DOT to promulgate rules for every contested case applying its interpretation of a statute, DOT must promulgate rules specifying a new interpretation of a statute before it can apply the new interpretation in a contested case. Here, the court ruled, DOT could not create a new interpretation of § 84.30(11) via the Lamar contested case before it promulgated a rule specifying its new interpretation of the statute to not allow a right to cure.
  2. DOT argued § 84.30(11) is clear and unambiguous, so its interpretation that Lamar had no right to cure the violation was simply conforming to statutory requirements. According to DOT, an agency conforming to unambiguous statutory requirements does not require new rulemaking under a 1976 case, Schoolway Transportation Co. v. DMV. However, Schoolway held that rulemaking is required for agencies changing their interpretation of ambiguous statutes. Here, the court found § 84.30(11) was ambiguous as to whether Lamar had a right to cure its billboard violation, so rulemaking was required for DOT to change its interpretation of the statute.

Thus, the court unanimously decided in Lamar to require rulemaking when agencies change their interpretation of an ambiguous statute. This case could set the stage for other rulemaking cases to come in the 2019-20 term. 

 

Western National Mutual Insurance Co. v. Advanced Disposal Services Solid Waste Midwest, LLC (Jury Verdict on Damages)

Posted on by Hamilton

In Western National Mutual Insurance Co. v. Advanced Disposal Services Solid Waste Midwest, LLC (2018AP2213), the Court of Appeals District IV upheld a jury’s award of $25,000 in damages to American Wood Recycling for a trailer damaged by American Disposal.

American Wood alleged that American Disposal negligently overloaded one of American Wood’s trailers, which resulted in a $50,289 invoice for the total cost of repairs. At trial, the jury found that $25,000 would fully compensate American Wood for damage to its trailer. American Wood appealed that verdict.

The court of appeals upheld the jury verdict, finding that there was evidence to support the jury’s damages award. At trial, American Wood and American Disposal disputed how much of the repairs were pre-existing damage and what were new damages due to American Disposal’s negligent overloading. Although the total cost of both pre-existing and new damages repairs was $50,289, the court found sufficient evidence to support the jury’s finding that $25,000 was sufficient for repairs of the new damage from American Disposal’s negligent overloading.