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Wisconsin Supreme Court term moves forward

The Wisconsin Supreme Court term for 2008-09 just began this month, and some important cases have already been heard or are scheduled to be heard soon.


A case which the court just granted certiorari in, but has not scheduled for oral argument, is already generating a great deal of interest, Umansky v. ABC Ins. Co., No. 2007AP385.
Umansky involves the governmental immunity distinction between ministerial duties (not immune from suit) and discretionary duties (immune).

Richard Umansky, a cameraman for ABC, fell from a platform while working during a football game at Camp Randall Stadium, and died from his injuries. His estate contended that the university was negligent for not having a railing on the platform, which could have prevented the fall.

The Court of Appeals held that a federal safety regulation, incorporated by the Wisconsin Administrative Code, created a ministerial duty to have a railing meeting the specifications of the regulation, and therefore, governmental immunity does not apply.

Lynn R. Laufenberg, a partner with Laufenberg & Hoefle S.C. in Milwaukee, is one of the co-chairs of the Wisconsin Association for Justice’s Amicus Curiae Brief Committee.

Laufenberg said he expects to request permission to file an amicus curiae brief in the case.

Laufenberg said that, in the past several years, some justices have questioned whether governmental immunity has ceased being an exception to the general rule of liability, and has swallowed the general rule.

Laufenberg said, “Governmental immunity has been expanded so much that almost nothing is ministerial.”

Laufenberg said that WAJ will probably also seek permission to file an amicus curiae brief in another recently added product liability case, Horst v. Deere & Company, 2006AP2933.

In Horst, the court will be considering whether Wisconsin law includes a “bystander contemplation” test — whether bystanders, in addition to users and consumers, are protected by the doctrine of strict liability.

The Supreme Court has already heard arguments in Godoy v. E.I. du Pont de Nemours and Co., 2006AP2670, which addresses whether lead paint pigment can be considered defectively designed. The Wisconsin Court of Appeals held that, because lead paint could not be made without using lead paint pigment, therefore, the pigment cannot be deemed defective.

On Oct. 7, the court will hear oral arguments in Blunt v. Medtronic, Inc., 2006AP1506, to determine whether state tort actions against manufacturers of medical devices are preempted by the federal Food, Drug and Cosmetic Act.

Likely to weigh heavily in the court’s deliberations is the recent U.S. Supreme Court decision in Riegel v. Medtronic, Inc. (2008), which held similar state claims preempted by federal law.

The next day, the court will hear Noffke v. Bakke, 2006AP1886, to decide whether cheerleading is a “sport” under sec. 895.525(4m), in which case participants’ and coaches’ allegedly negligent acts would be immune from suit.

Just added to the court’s docket is Estate of Genrich v. OHIC Ins. Co., 2007AP541. At issue is when the statute of limitations for wrongful death based on medical malpractice begins to run.


Two important insurance cases are also on the docket for this year’s term.

On Sept. 9, the court heard arguments in Plastics Engineering co. v. Liberty Mutual Ins. Co., 2008AP333-CQ, to determine what constitutes an “occurrence” in an insurance contract, when exposure injuries are sustained by numerous individuals, at varying geographical locations, over many years.

On Oct. 13, the court will hear Lisowski v. Hastings Mutual Ins. Co., 2006AP2662, to consider the breadth of a “covered auto exclusion” in an automobile policy providing underinsured motorist (UIM) coverage.


Two key employment cases are also on the docket.

On Sept. 12, in Star Direct, Inc., v. Dal Pra, 2007AP617, the court heard arguments on the enforceability of an employer’s non-compete clause.

Oral arguments have not yet been scheduled in a second case, Havot v. Solo Cup Co., 2007AP1396. In Havot, the court will decide whether the Wisconsin Family Medical Leave Act confers a right to a jury trial, or, if the statute does not confer such a right, whether the State Constitution does.

Workers’ Compensation

The court has already heard arguments in County of Dane v. LIRC, 2006AP2695. At issue is the level of deference to afford LIRC, when it reverses a long-standing interpretation of a statute in favor of a new interpretation.


Only one case touching on real estate is currently pending.

On Oct. 7, the court will hear Apple Valley Gardens Assoc., Inc. v. MacHutta, 2007AP191. At issue is whether a bylaw amendment — requiring a condominium owner to occupy his unit — is enforceable, or whether it must be included in the condominium declaration to be valid.

Civil Procedure

Two pending cases address significant issues of civil procedure.

In Luckett v. Bodner, 2007AP308, the court will address the proper standards for whether to allow a party to withdraw an admission.

Also, Kenosha Professional Firefighters v. City of Kenosha, 2007AP1198, raises a number of procedural issues, including whether the denial of a request for costs is a final order for purposes of appeal, and the timeliness of a request for costs.

Family Law

Only one family law case is currently on the docket, Tensfeldt v. Haberman, 2007AP1638 (not yet scheduled for argument), a case that also is relevant to probate attorneys. In Tensfeldt, the court will consider whether a trial court can incorporate, into a divorce judgment, a stipulation requiring a party to maintain a will in favor of an adult child.

Search and Seizure

Several important criminal cases are on the docket, as well.

On Oct. 7, the court will hear State v. Denk, 2006AP1744-CR, to consider whether police officers may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver.

On Nov. 5, the court will hear arguments on whether the good faith exception to the exclusionary rule applies whenever a neutral and detached magistrate issues a search warrant and the police rely on it. State v. Romero, 2007AP1139-CR.

The next day, the court will hear State v. Kramer, 2007AP1834-CR, to decide whether the community caretaker analysis, as formulated by the Court of Appeals in State v. Anderson, 142 Wis.2d 162, 417 N.W.2d 411 (Ct.App.1987), is consistent with the Fourth Amendment’s search and seizure principles.

Not yet scheduled for argument is State v. Ferguson, 2007AP2095-CR. At issue is whether the hot pursuit doctrine justifies a warrantless entry to a home, in order to arrest a suspect for a mere misdemeanor, rather than a felony.


Also before the court on Nov. 6 is State v. Grady, 2007AP672-CR. In Grady, the court will decide whether a defendant’s statements to police are admissible, when the officers gave him Miranda warnings, but did so before his arrest, rather than after arrest.

Criminal Procedure

On Oct. 8, the court will hear State v. Ndina, 2007AP5-CR, to consider whether a criminal defendant must raise his right to a public trial before the circuit court, or whether the failure to raise the issue waives any objection to the public’s exclusion.

On Nov. 5, the court will hear State v. Warbelton, 2007AP105-CR. At issue is whether, in a prosecution for stalking while having “a previous conviction for a violent crime,” it is the jury’s or the court’s job to make the finding whether the defendant has a previous conviction.


Finally, three important sentencing issues have already been heard, or will be this term.

On Sept. 12, the court heard oral arguments in State v. Carter, 2006AP1811-CR. At issue is whether a defendant arrested in another state on both a Wisconsin warrant and a new violation of the other state’s criminal law, is entitled to sentence credit for time spent in custody in the other state.

The same day, the court heard arguments on whether a defendant is entitled to sentence credit on concurrent sentences imposed at the same time, but when the custody was not in connection with both offenses. State v. Johnson, 2007AP1114-CR & 2007AP1115-CR.

The Supreme Court has not yet scheduled arguments for State v. Fernandez, 2007AP1403-CR, in which the court will decide whether State v. Loutsch, 2003 WI App 16, correctly states the law with respect to determining a defendant’s ability to pay restitution.

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