Wisconsin Lawyer
Vol. 78, No. 11, November 2005

Court of Appeals Digest

by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer

Attorney Fees Civil Procedure Criminal Procedure

Employment Law Torts

Attorney Fees

Reasonableness - Hearings - "Freeze Order"

Kohl v. DeWitt Ross & Stevens, 2005 WI App 196 (filed 11 Aug. 2005) (ordered published 20 Sept. 2005)

An attorney represented a woman in a divorce action. The attorney had disagreements with the client and then, with the court's consent, withdrew from representing the client. The attorney sought payment of about $15,000 for attorney fees, which the client refused to pay. The court ordered the client to not transfer or encumber particular funds that could be used to pay the attorney fees. Following a 90-minute hearing in which the client appeared pro se, the court granted judgment in favor of the attorney.

The court of appeals, in an opinion written by Judge Vergeront, affirmed. First, the client unsuccessfully argued that Wis. Stat. section 767.23(3) limits the award of attorney fees to situations in which one attorney withdraws and another is substituted at the very same time. The "only reasonable meaning of Wis. Stat. § 767.23(3)(a) is that it gives the court in an action affecting the family the authority to enter a judgment for the fees owed by the client to an attorney who is permitted by order of the court to withdraw, regardless when or if the client retains another attorney to replace the withdrawing attorney in that action" (¶ 23). Second, the client was accorded a reasonable opportunity to be heard. The circuit court restricted the hearing to 90 minutes, which was not unreasonable as a matter of law. Moreover, the client had been given advance notice of the time limits and spent some of the available time on matters of "little relevance" to the fee issue (¶ 26).

Third, the circuit court reasonably determined that the client owed nearly $16,000 in fees, which included services provided by a "paralegal." Fourth, the judge properly issued the "freeze order" to secure payment of the attorney fees. The court of appeals said that Wis. Stat. section 767.23(1)(h) "gives the court the authority `during the pendency' of an action affecting the family, to `prohibit[] ... either party from disposing of assets within the jurisdiction of the court.' [The client] asserts that this provision was intended to protect each party from adverse actions by the other, not to protect attorneys. However, no such limitation is even arguably apparent from the statutory language or the context of the statute. [The client] also argues that the court's authority exists only up to the time that the judgment of divorce is granted, because after that the action is not `pending.' However, at the time the court entered the freeze order in this case, although it had granted the divorce, the issues of custody and placement, as well as the motion for attorney fees, remained to be resolved. The only reasonable construction of the statute is that this action affecting the family was still `pending' when the court entered the freeze order" (¶ 32).

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Civil Procedure

Deadman's Statute - Marital Property

Gerczak v. Estate of Gerczak, 2005 WI App 168 (filed 14 June 2005) (ordered published 20 Sept. 2005)

Gerczak (the son) worked full-time at his father's liquor store. Because of cash flow problems, both father and son often deferred their payroll checks so that the store's creditors could be paid first. When the father died in 2003, the store's assets passed into his residual estate. The son filed claims against the estate for "loans" made to the business and unpaid wages. The son's sister opposed the claims. The son's wife worked as the store's bookkeeper. At a hearing on the contested claims, the court ruled that the wife was barred by the deadman's statute from testifying that the unpaid payroll checks were business loans. After excluding this evidence, the court found the evidence insufficient to establish that the uncashed checks were business loans, which meant that the claims were governed by the unpaid wages two-year statute of limitation (which cut off claims for unpaid wages owed from before August 2001).

The court of appeals, in an opinion written by Chief Judge Cane, affirmed. This is the first Wisconsin case to address the relationship of the deadman's statute, Wis. Stat. section 885.16, to the Marital Property Act. "Under Wis. Stat. § 766.31, one spouse's income is marital property in which both spouses have a present undivided half interest. In any claim for unpaid wages, therefore, a non-wage earning spouse has the same interest in the potential income as the spouse who earned the wages. Even if the claim in this case involves an unpaid loan, the money used to make that loan would presumptively be marital property, used for a marital purpose and, in the absence of evidence demonstrating that it was separate property, [the wife] would again have the same interest in that property as her husband. Thus, to the extent that [the wife and her husband] would have the same ownership interest in the property that gives rise to this action, and the same right to control and manage that property, [the wife's] interest in the outcome of the litigation is as `present, certain, and vested' as her husband's" (¶ 19).

Because the wife was incompetent to testify about transactions or conversations with the father about the significance of the husband's unpaid payroll checks, the circuit court appropriately found that the claim was governed by the two-year statute of limitation that governs actions for unpaid wages (see ¶ 21).

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Criminal Procedure

Search and Seizure - Wisconsin Electronic Surveillance Control Law - Police Recording of Inmate Telephone Conversations

State v. Riley, 2005 WI App 203 (filed 10 Aug. 2005) (ordered published 20 Sept. 2005)

The issue before the court in this case was whether the circuit judge properly granted the defendant's motion to suppress electronic surveillance evidence that consisted of recordings of outgoing telephone calls the defendant made to nonattorneys from the county jail in which he was incarcerated. Persons placing calls from this telephone hear a recording on the phone informing them that their calls "may be recorded."

The Wisconsin Electronic Surveillance Control Law (WESCL) (Wis. Stat. §§ 968.27-.37) expressly prohibits interceptions of both wire and oral communications absent a court order authorizing or approving such interceptions, with some exceptions. The state argued that the monitoring and recording of the defendant's calls from the jail fell under the WESCL's exception for one-party consent surveillance and that the recordings are therefore admissible. It maintained that the message played to all callers who use the telephone provided the defendant with meaningful notice that his outgoing calls from the jail's telephones might be recorded and that when the defendant continued with his calls after hearing that announcement, he impliedly consented to their interception.

In a decision authored by Judge Anderson, the court of appeals noted that federal courts of appeal that have addressed the consent exception in the prison setting have overwhelmingly concluded that an inmate has given implied consent to electronic surveillance when he or she is on notice that his or her telephone call is subject to monitoring and recording and nonetheless proceeds with the call (see ¶ 11). The court relied on this developed federal consensus concerning the scope of the consent exception and applied it to the WESCL.

"We therefore hold that so long as an inmate is given meaningful notice that his or her telephone calls over institutional phones are subject to surveillance, his or her decision to engage in conversations over those phones constitutes implied consent to such surveillance. Meaningful notice may include a signed acknowledgment form, an informational handbook or orientation session, a monitoring notice posted by the outbound telephone, or a recorded warning that is heard by the inmate through the telephone receiver, prior to his or her making the outbound telephone call" (¶ 13). Accordingly, the defendant's communications were lawfully intercepted under the WESCL and the evidence derived from the interceptions is admissible as long as the authentication procedures set forth in section 968.29(3)(b) are met.

The state also argued that the WESCL'ns law enforcement exception applied in this case. However, the court chose to leave this issue for another day because the record was insufficient with respect to it (see ¶ 7 n.2). Nor did the court need to deal with the WESCL's prohibition on the interception of communications between an attorney and a client; the defendant did not assert that he made a call to his attorney that was unlawfully intercepted by the jail's recording system (see ¶13 n.5).

Sentencing - Multiple Terms of Probation _Consecutive Periods of Conditional Jail Time

State v. Johnson, 2005 WI App 202 (filed 16 Aug. 2005) (ordered published 20 Sept. 2005)

On Sept. 26, 2003, the defendant entered a no contest plea to one count of failure to pay child support. On Nov. 10, 2003, he pleaded guilty to two counts of delivery of cocaine. He was found guilty in both cases on the respective days on which he entered his pleas. He was not sentenced for any of the crimes until Jan. 24, 2004. At that time, the circuit court withheld sentence on the child support conviction, placing the defendant on probation for five years. As a condition of probation, he was ordered to serve nine months in the county jail. The court also withheld sentence on both drug counts, placing the defendant on probation for 12 years. As a condition of probation, he was ordered to serve nine months in the county jail. Finally, the circuit court ordered that the terms of probation in the drug cases and the child support case be concurrent but made the periods of conditional jail time consecutive to each other. The defendant was thus required, as a condition of probation, to serve a total of 18 months in the county jail.

The Wisconsin statutes provide that a court may require, as a condition of probation, that a probationer be confined during such period of the term of probation as the court prescribes but that the confinement period cannot exceed one year. See Wis. Stat. § 973.09(4)(a). As described above, the court ordered the defendant confined in the county jail for consecutive nine-month periods as a condition of probation. The defendant argued that the court had no statutory authority to order consecutive periods of conditional jail time and that requiring him to serve a total of 18 months in jail as a condition of probation violates section 973.09.

In a decision authored by Chief Judge Cane, the court of appeals affirmed the circuit court. Because the convictions in the child support and drug cases occurred at different times (the defendant was adjudicated guilty at two distinct plea hearings) and because the defendant therefore was not serving a single probationary term, the court of appeals concluded that the circuit judge had the statutory authority to order consecutive periods of conditional jail time. Had the defendant been convicted at the same time in his drug and child support cases, "those crimes would, as the State apparently concedes, give rise to a single `term of probation,' which in turn would mean that the one-year limit on conditional jail time [would apply] to that term" (¶ 9).

Search and Seizure - Consent Searches

State v. Kelley, 2005 WI App 199 (filed 6 July 2005) (ordered published 20 Sept. 2005)

The police were looking for an accelerant and the handset of a cordless telephone in connection with a murder investigation. Suspecting that the defendant may have been involved in the murder and also having been advised that he had child pornography in his apartment, they went to the apartment and asked the defendant for permission to search for evidence related to the murder. He consented. During the search, the police looked under the defendant's bed and found child pornography. The defendant was charged with possession of child pornography. He filed a motion to suppress the evidence, arguing that the police coerced him into consenting to the search by failing to disclose that they would be looking for child pornography. The circuit court ruled that the consent was voluntary and was not affected by the detectives' failure to identify all of their suspicions. It found that the defendant consented to a general search of his apartment and that he did not limit that search. Therefore, the circuit court denied the motion.

In a decision authored by Judge Wedemeyer, the court of appeals affirmed. The detectives identified for the defendant the principal purpose for the investigation, namely looking for evidence related to the murder. The defendant consented to a general search of his apartment based on this information. He did not limit the search in any way. He was present when the officer was searching the bedroom. He could have limited or withdrawn his consent when he observed the officer searching under the bed, see Florida v. Jimeno, 500 U.S. 248, 252 (1991), but he did not do so (see ¶ 11).

The defendant argued that the police should have disclosed that they had reason to believe he had child pornography in his apartment. Said the court, "[w]e are not persuaded that the detectives' failure to disclose all their suspicions invalidated an otherwise validly obtained consent. This was not a case of deception or false pretext. The detectives went to search [the defendant's] apartment because they were investigating a murder. They had legitimate suspicions based on the circumstances present that he may have been involved in the murder. They disclosed the purpose of this investigation. This was not a case where the officers fabricated a story about a non-existent murder to sneak their way into [the defendant's] apartment in order to look for child pornography. They had valid reasons to believe a search of his apartment was pertinent to the actual murder investigation. Thus, the failure of the officers to disclose secondary suspicions did not result in coercion or an involuntary consent" (¶ 12).

The court also rejected the defendant's argument that the search violated the scope of the defendant's consent. The police were searching for a telephone handset and an accelerant. Either object easily could have been hidden beneath the bed. Moreover, the defendant did not limit the scope of his consent but rather authorized a general consent to search the entire apartment. The defendant's failure to object to the search under the bed was further support for the court's conclusion that the officer did not exceed the scope of the consent when he searched under the bed.

Interrogation - Miranda Warnings - Attorney Presence

State v. Rockette, 2005 WI App 205 (filed 10 Aug. 2005) (filed 20 Sept. 2005)

This "unusual" case involves a detective's omission of Miranda warnings while questioning a suspect, who was in custody but had defense counsel present to represent him during the interrogation. The defendant was arrested and charged with a series of violent offenses. He had refused to speak with police on prior occasions but his defense counsel "hoped" that the defendant might obtain "consideration" if he cooperated with the state. Before any questioning began, defense counsel requested that the detective not read the Miranda warnings and advised his client "that so long as he did not receive Miranda warnings, nothing he admitted to could be used against him." Complying with counsel's request, the detective did not read the Miranda warnings. The detective also did not obtain a valid waiver before the interrogation. The first defense counsel later withdrew, and substitute counsel moved to suppress statements the defendant made during the interrogation. The court denied the motion to suppress. The defendant later pleaded guilty to some offenses.

The court of appeals, in a decision authored by Judge Brown, affirmed. Of special significance is the court's determination that the defendant had not waived his Miranda rights and its observation that the state, "to its credit," conceded that a Miranda violation "probably occurred" despite counsel's presence (¶ 25). In particular, defense counsel had provided "erroneous information" when he told the defendant that his statements could not be used against him. Since the defendant's statements during the interrogation were voluntary, they could be used to impeach his trial testimony regardless of any Miranda defects. Although the trial court should have suppressed the statements because of the Miranda violation, any error was harmless because there was no reasonable possibility that the disputed evidence contributed to the guilty plea and conviction. (The latter analysis was fact intensive and presented no novel questions of law.)

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Employment Law

Wisconsin Fair Employment Act - Proof of Disability - Permanency of Disability

Erickson v. Labor & Indus. Review Comm'n, 2005 WI App 208 (filed 3 Aug. 2005) (ordered published 20 Sept. 2005)

The Labor and Industry Review Commission (LIRC) determined that the petitioner's employer did not unlawfully discriminate against the petitioner on the basis of disability, because the petitioner failed to prove that he was an "individual with a disability" within the meaning of the Wisconsin Fair Employment Act (WFEA). See Wis. Stat. § 111.32(8). The circuit court affirmed LIRC. The court of appeals, in a decision authored by Judge Snyder, affirmed the circuit court.

The petitioner argued that LIRC and the circuit court erred when they determined that a disability must be permanent in order to be actionable under the WFEA. The appellate court disagreed with the petitioner's position. "For over twenty years, LIRC has interpreted the term `disability' within the WFEA to require a permanent impairment. Had our legislature considered this an inappropriate reading of the statute, it could have revised the language to include temporary impairments. We will not impose a new interpretation where our legislature has seen fit to let the statutory language, as applied by LIRC, stand" (¶ 16). The court concluded that the LIRC properly interpreted section 111.32(8) to require the petitioner to demonstrate a permanent impairment.

The petitioner presented no medical evidence with regard to proof of disability, either in the form of physician testimony or of competent medical records, on which a fact-finder could base a conclusion about the nature of his condition. Said the court, "proof of a disability requires competent medical evidence of the employee's alleged impairment" (¶ 17). To demonstrate that a disability under the WFEA exists, the complainant must present competent evidence of a medical diagnosis regarding the alleged impairment (see ¶ 19).

Lastly, the appellate court concluded that the petitioner failed to demonstrate that the employer discriminated against him on the basis of perceived disability. While it is true that the employer accommodated the petitioner by giving him light-duty work, this was done despite an independent medical report indicating that the petitioner had no permanent impairment. By offering light-duty work, the employer supported the petitioner's efforts to continue working and ultimately upheld the WFEA's purpose, which is to enable individuals to work. "We would undermine the purpose of the WFEA were we to conclude that [the employer's] decision to grant [the petitioner's] requests for light-duty work rather than terminating his employment for refusing to perform his regular job duties, was proof of a perceived disability under Wis. Stat. sec. 111.32(8)(c)" (¶ 21).

Wisconsin Fair Employment Act - Disability - Asthma

Doepke-Kline v. Labor & Indus. Review Comm'n, 2005 WI App 209 (filed 18 Aug. 2005) (ordered published 20 Sept. 2005)

The petitioner claimed that her employer violated the Wisconsin Fair Employment Act (WFEA) by discharging her because of her asthma, refusing to accommodate her disability, and discriminating against her in the terms and conditions of her employment because of her disability. The Labor and Industry Review Commission (LIRC) dismissed her claim, concluding that she did not demonstrate that she was an individual with a disability within the meaning of Wis. Stat. section 111.32(8). The circuit court affirmed and the court of appeals, in a decision authored by Judge Vergeront, affirmed the circuit court.

The petitioner argued that Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. DIHLR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974), established that an asthma diagnosis by itself establishes a disability within the meaning of the WFEA. The appellate court in the present case concluded that asthma can be a disability under the WFEA but only if the claimant establishes that his or her particular physical condition constitutes a handicap within the meaning of the WFEA. This involves a two-step analysis. "First, the claimant must establish that there is a real or perceived impairment - with an impairment defined as `a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition.' Second, the claimant must establish that such a condition actually makes or is perceived as making achievement unusually difficult or limits the capacity to work" (¶ 16, citing City of La Crosse Police & Fire Comm'n v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987)) (internal citations omitted).

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Torts

Health Care Records - Confidentiality - Scope of Employment

Korntved v. Advanced Healthcare S.C., 2005 WI App 197 (filed 19 July 2005) (ordered published 20 Sept. 2005)

This litigation arose out of an unauthorized disclosure of confidential healthcare information. An Advanced Healthcare employee accessed certain medical records and then disclosed the information to her husband. The medical records were those of the husband's daughter and the daughter's mother. When they learned of the breach of confidentiality, the daughter and her mother sued Advanced Healthcare and alleged numerous claims. The circuit court granted summary judgment in Advanced Healthcare's favor because the record did not show that the employee was acting within the scope of her employment when she accessed and disclosed the information.

The court of appeals, in a decision authored by Judge Curley, affirmed. "In determining whether an employee was acting within the scope of his or her employment, `[t]he test is whether the servant has stepped aside from the business of his [or her] principal to accomplish an independent purpose of his [or her] own, or whether he [or she] was actuated by an intent to carry out his [or her] employment and to serve his [or her] master'" (¶ 11). Although this "usually" presents a jury question because of its subjective nature, the record here demonstrated no material issue of fact. "There is nothing in the record, as of the time of the summary judgment motion, to support an inference that [the employee] was attempting to benefit or serve her employer when she accessed the medical records. What was in the record, however, was Advanced Healthcare's confidentiality policy, a copy of which had been signed by [the employee] as a condition of her employment, delineating the proper methods for the access and release of medical records, and identifying the only individuals with authority to do so" (¶ 13).

Based on these policies, it was "quite clear that, unless done via the Medical Information Department or in accordance with direct business responsibilities, access to and release of medical records is clearly prohibited - regardless of whose information it is or who wants the information. There is nothing in the record to suggest that [the employee] was a representative of the Medical Information Department. Moreover, the record shows that, in a response to an interrogatory, Advanced Healthcare indicated that it had no reason to believe that [the employee] would have had a clinical need to access the records for her work" (id.).

Underage Drinkers - Immunity - Good Samaritan Immunity - ATVs

Mueller v. McMillan Warner Ins. Co., 2005 WI App 210 (filed 2 Aug. 2005) (ordered published 20 Sept. 2005)

The Switlicks hosted a party at their summer "shack." Their underage son had several beers inside the house while the adults were outside. The plaintiff, who also was underage, joined the son and may have had a drink (her later head injury left her without any memory of that evening). At about 11 p.m., the son and the plaintiff took off on an all_terrain vehicle (ATV). The son lost control of the ATV and crashed. Both the son and the plaintiff, covered in blood and vomiting, returned to the shack. At 6 a.m. Mrs. Switlick called an ambulance for the plaintiff, who was found to have suffered a broken skull. The plaintiff sued the son for negligence and his parents for negligence in providing beer to minors and failing to care for her properly after the accident. The circuit court ruled that the Switlicks had provided "traditional first aid" to the plaintiff and hence were immune from liability under Wis. Stat. section 895.48(1), that the plaintiff had no cause of action for the underage drinking claim because she was a "principal," and that the pertinent homeowner's insurance policy provided no coverage because the ATV, which the Switlicks did not own, was "garaged" on the Switlicks' property.

The court of appeals, in a decision written by Chief Judge Cane, reversed. First, the Switlicks were not "protected providers" for having "accompan[ied]" their son while he drank their alcohol. The court concluded "that underage drinkers are not accompanied by a parent merely because the parent and child are on the same premises" (¶ 16). Here the parents had "told [their son] not to drink where he could be observed by the other guests and both [his father and mother] admitted they did not know how much their son drank between 2 p.m. and 10 p.m. Based on those undisputed facts, [the Switlicks] were neither supervising nor otherwise controlling [the son] when he was drinking and were thus not accompanying him for the purposes of Wis. Stat. § 125.07(1)(a)" (¶ 16).

Second, the court also erred when it concluded that the plaintiff was not an injured third party under Wis. Stat. section 125.035(4)(b). The record revealed material issues of fact about whether the plaintiff was a "principal" to the "transaction" by which the son received alcohol from his parents "or whether she was an underage drinker injured as a result of alcohol illegally provided to a companion underage drinker" (¶ 22).

Third, the Switlicks did not have immunity as "Good Samaritans," because they did not provide emergency medical care. The court of appeals noted that although case law is sparse, the record clearly revealed that the Switlicks did little or nothing for the plaintiff that she could not have done for herself. "Suggesting that a bloody and vomiting woman lie in a bed rather than on a floor, covering her with a quilt, leaving her alone in a dark room for six or more hours, and periodically asking if she felt all right does not, we conclude, constitute emergency care. Other jurisdictions have found that relatively simple acts, such as providing transportation to an emergency room or asking whether accident victims need help, can constitute emergency care for the purposes of Good Samaritan statutes. But even if we disregard differences among Good Samaritan Laws, such persuasive precedent is factually distinguishable. In those cases, individuals provided care either by transporting injured persons to a place where their injuries could be treated or by attempting to make medical help available" (¶ 34).

Finally, the court held that the Switlicks' homeowner's policy covered their son's use of a neighbor's ATV. The policy excluded recreational vehicles that are "garaged" on the insureds' premises. The precise issue turned on "whether a recreational vehicle is garaged if it is left on a property ... from two and one half weeks to a single day" (¶ 39). Without deciding "how long it would take to turn parking into garaging," the court held that "casual, one-time use of a property that spans less than three weeks is not sufficient to accomplish that transformation" (¶ 43).

Punitive Damages - Excessive Award

Strenke v. Hogner, 2005 WI App 194 (filed 2 Aug. 2005) (ordered published 20 Sept. 2005)

Hogner consumed 16 to 18 beers and then attempted to drive. His car collided with Strenke's car. Hogner's blood alcohol level was tested at .269 percent, and he was convicted of his fifth offense of operating while intoxicated. In the trial of the resulting civil action, Strenke's lawyer asked the jury to find $2,000 in compensatory damages and $25,000 in punitive damages. The jury returned a verdict that assessed punitive damages at $225,000. Hogner and his insurer appealed. The court of appeals certified the appeal to the supreme court. In Strenke v. Hogner, 2005 WI 25, the supreme court affirmed the punitive damages award in other respects but was evenly divided on the question of whether the verdict violated Hogner's due process rights.

On remand, the court of appeals, in a decision written by Chief Judge Cane, affirmed the trial court and held that the verdict did not violate Hogner's due process rights. "The question before us now is whether, under the BMW-State Farm-Trinity standard, the $225,000 punitive damage award in this case is `grossly excessive.' We conclude it is not" (¶ 19) (citations omitted).

First, the award served the legitimate state interest in punishing and deterring drunk drivers. "The degree of reprehensibility is the most important factor in any excessiveness inquiry and the conduct in this case qualifies as egregious. Hogner testified he had never hurt anyone previously while driving drunk, and never intended to. But those claims do nothing to mitigate his conduct. He admits to four previous arrests for drunk driving - the fifth came as a result of the accident. The drinking pattern established at trial, beginning at 8 a.m. at home and then moving on to taverns, would in addition provide grounds from which to infer that these five occasions of drunk driving represented only a fraction of the times Hogner drank and drove. Hogner's blood-alcohol level was more than three times the .08 percent level that establishes presumptive intoxication, arguably indicating profound indifference to the health and safety of others. He demonstrated even greater indifference each time he got in his car in search of more alcohol. Other jurisdictions have found, and we agree, that evidence of this sort establishes reprehensibility clearly, convincingly, and substantially" (¶ 21). In short, four of the five factors "used to measure reprehensibility" were present (see ¶ 22).

As to the "second guidepost" identified in the case law, "we must ask whether, despite the state's interest in punishment and deterrence of drunk drivers and the reprehensibility of the conduct at issue, the difference between $2,000 and $225,000 is so excessive it creates the kind of notice problem identified in BMW and State Farm. If we consider only actual harm, it is hard to argue that Hogner would expect that an accident that caused $2,000 in damages would subject him to a punitive damage award of more than 100 times that amount. In addition, Wisconsin case law tends to disfavor awards whose ratio to compensatory damages is in the double digits. If we consider potential damages, however, the excessiveness calculus changes" (¶ 23). The court also looked to the criminalization of drunk driving and the statutory scheme of gradated, escalating penalties for repeat offenders, a legislative scheme entitled to "deference." The court held that the jury could have reasonably found that a large punitive damages award would support, not weaken, the civil and criminal sanctions imposed by the legislature (see ¶ 28).

Finally, the court rebuffed Hogner's argument that the vast discrepancy between the requested award of $25,000 and the jury award of $225,000 marked the verdict as a product of passion or prejudice.

Children - Failure to Control

Nielsen v. Spencer, 2005 WI App 207 (filed 10 Aug. 2005) (ordered published 20 Sept. 2005)

During a fracas at a local mall, 16-year-old Franklin struck another minor, Jonathan, on the head with a blackjack, causing a serious injury. Jonathan and his parents sued Franklin's mother for negligent failure to control her child. The circuit court granted partial summary judgment in favor of Franklin's mother on the issue of whether she knew or should have known of the necessity and opportunity for controlling her son.

The court of appeals, in a decision written by Judge Anderson, affirmed. The sole question was whether genuine issues of material fact existed regarding the plaintiffs' claim of negligent failure to control a child's conduct. In essence, the plaintiffs argued "that the police department records indicate that Franklin had `violent and delinquent tendencies' and therefore raise a jury question as to whether [the mother] knew, or should have known, of the necessity and opportunity for controlling Franklin" (¶ 11).

The court held that "[t]he record in this case contains no evidence from which it could be reasonably inferred that [the mother] knew, or should have known, of specific acts of prior conduct sufficient to put her on notice that the act [the plaintiffs] complain of was likely to occur. [The mother] averred that she did not know [Jonathan], she did not consider Franklin to be a violent person, she had never known Franklin to use an instrument or any kind of object to injure another person, and she was not aware of Franklin owning a blackjack prior to February 5. The evidence simply does not suggest that she knew, or should have known, otherwise in February 2002" (¶ 15).

Police records contained several references to nonviolent delinquent behavior (for example, bike thefts) but only one reference to a "possible physical altercation," which occurred nearly three years earlier and involved no reported physical injuries to the alleged victim (¶ 17). Nor was there any evidence demonstrating that the mother had the opportunity to prevent Franklin's conduct at the mall. Without dispute the altercation at issue did not occur within her presence or close proximity. And nothing suggested that the mother knew that her son was armed with a blackjack (see ¶ 18).

The court also looked at analogous cases, which "teach that § 316 of the Restatement does not require parents to anticipate and guard against every logically possible instance of misconduct. This is so even where, as here, the parent was aware, or at the very least, should have been aware of the child's past delinquent but dissimilar behavior. `Section 316 [of the Restatement (2d) of Torts] does not, after all, purport to make parents vicariously liable for raising careless or delinquent children, nor does it intend `to transform parents from care givers and disciplinarians into the jailors and insurers of their minor children'" (¶ 22).

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