Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests – September 28, 2020 – October 2, 2020

By: Rick Benedict//October 2, 2020//

Weekly Case Digests – September 28, 2020 – October 2, 2020

By: Rick Benedict//October 2, 2020//

Listen to this article

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Denean Adams v. Board of Education of Harvey School District 152, et al.,

Case No.: 19-2534; 19-3269

Officials: SYKES, Chief Judge, and EASTERBROOK and BARRETT, Circuit Judges.

Focus: Abuse of Discretion – Damages

Denean Adams was superintendent of the Harvey, Illinois, public schools from July 2013 through June 2016. Her tenure ended unhappily: in July 2015 the Board of Education revoked an offer to extend her three-year contract; later that educational year it blocked her email account and tried to pretend that she did not exist. Indeed, the Board told state education officials in spring 2016 that she was no longer superintendent. These and related events put her under a lot of stress. She took medical leave in March 2016 and never returned to work. But she did file this suit under 42 U.S.C. §1983. A jury awarded $400,000 in damages after concluding that the Board and its members had violated the First Amendment (applied to the states through the Fourteenth). The district court declined to set aside that award, see 2019 U.S. Dist. LEXIS 117428 (N.D. Ill. July 15, 2019), and added about $190,000 in attorneys’ fees. 2019 U.S. Dist. LEXIS 122282 (N.D. Ill. July 23, 2019). Both sides have appealed.

Adams asks us to dismiss the Board’s appeal for lack of jurisdiction. The Board’s principal argument on the merits is that a report to the police is a personal grievance, not a matter of public concern, and therefore falls outside the scope of the First Amendment. That personal grievances are the subject of state law (torts and contracts) rather than the First Amendment is well established. See, e.g., Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968). Yet the district court did not rule otherwise. Our conclusion that Adams’s speech is within the scope of the First Amendment means that the evidence presented a jury question about whether her statements caused the end of her employment. The record permitted a reasonable jury to find that they did. Likewise a reasonable jury could conclude that an ordinary employee in Adams’s position would be deterred from speaking by the prospect of losing her job.

The Board’s other arguments are feeble. It contends, for example, that Adams lacks a good claim because the proposal to extend her contract through June 2017 was properly rescinded (or never properly made in the first place). But the jury did not award damages under a contract theory, nor did the district judge permit the jury to consider Adams’s contention (under the Due Process Clause of the Fourteenth Amendment) that the Board should have offered a hearing before rescinding the proposed contract extension. The jury was permitted to consider the possibility that Adams would have remained on the job longer had she kept silent, but that concerns damages on her First Amendment theory. Damages for a violation of the First Amendment are not limited by the duration of contracts.

The Board also asserts that the award of $400,000 is excessive, but our standard of review is highly deferential to the jury’s evaluation. The district judge explained why this award is similar to those in other, comparable cases. No more need be said. This brings us to Adams’s cross-appeal, which concerns the award of attorneys’ fees under 42 U.S.C. §1988. The district court determined the number of hours that counsel properly devoted to the claims on which Adams prevailed (she lost on several claims against all defendants and lost outright against some defendants) and multiplied this by the hourly rate for the services of Jerome M. Davis, who represented her. Davis told the judge that he has charged some paying clients as much as $265 per hour, but he asked for what he called an “enhancement” to $550 to reflect the risk of loss. Multiplying $550 by the number of hours Davis said he devoted to the case produced roughly $550,000. The judge awarded some $190,000, derived from multiplying $265 per hour by a smaller base of compensable hours. Adams contends in the cross-appeal that Davis should have received credit for more hours and a rate of at least $385 per hour, plus a 25% bonus, for a total of roughly $485,000.

Only a few words are necessary to dispose of this outlandish request—outlandish because the request for two enhancements (a higher hourly rate and a bonus) contradicts the Supreme Court’s ruling that enhancements are not permitted under fee-shifting statutes. See Burlington v. Dague, 505 U.S. 557 (1992). They may be appropriate in common fund cases, in which the fee comes out of the prevailing side’s winnings, but are forbidden when the defendant pays. The district court thought it a stretch to award even $265 per hour, given the weakness of the evidence supporting that rate for Davis’s time; the judge did not abuse her discretion or commit a legal error in declining to award more. Nor did the judge abuse her discretion or make a clearly erroneous finding in counting the number of hours reasonably devoted to pursuing the claims on which Adams prevailed.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Ryze Claims Solutions, LLC, v. Jane Magnus-Stinson

Case No.: 19-2930

Officials: RIPPLE, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Writ of Mandamus – Forum-selection Clause

Leslie Billings is a party to an employment agreement with his former employer, RYZE Claim Solutions, LLC (“RYZE”). The employment agreement contains a forum‐selection clause providing that Mr. Billings must bring claims against RYZE in an Indiana court, either in Marion County or Hamilton County, or in a federal court in the Southern District of Indiana. Mr. Billings nevertheless filed this action in a California state court. RYZE removed the action to the United States District Court for the Eastern District of California. Relying on Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, 571 U.S. 49, 62–63 (2013), the Eastern District of California concluded that Mr. Billings had failed to show why the forum‐selection clause should not control and granted RYZE’s motion to transfer venue under 28 U.S.C. § 1404(a) to the Southern District of Indiana.

In due course, the district court in Indiana granted RYZE’s motion for summary judgment on Mr. Billings’s federal claims. The district court then transferred, sua sponte, the case back to the Eastern District of California. It explained that its own docket was congested and that the Eastern District of California had a greater familiarity with California labor law. When the case was docketed once again in the Eastern District of California, RYZE petitioned this court for a writ of mandamus directing the Southern District of Indiana to request that the Eastern District of California transfer the action back to the Southern District of Indiana.

We must give forum‐selection clauses “‘controlling weight in all but the most exceptional cases.’” Atl. Marine, 571 U.S. at 63 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J., concurring)). Because no such exceptional circumstances exist here, the district court departed from the settled approach for applying the federal transfer statute in cases governed by a forum‐selection clause. Accordingly, we grant the petition and issue the writ of mandamus.

Petition granted

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Matthew Howard

Case No.: 19-1005

Officials: SYKES, Chief Judge, and MANION and KANNE, Circuit Judges.

Focus: Statutory Interpretation – Child Pornography

Matthew Howard was charged with seven crimes relating to possession, receipt, distribution, and production of child pornography. See 18 U.S.C. § 2252(a)(2), (a)(4); id. § 2251(a). He pleaded guilty to five; the remaining counts—accusing him of producing child pornography in violation of § 2251(a)—proceeded to trial.

The statute mandates a minimum 15-year prison term for “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” § 2251(a), (e). Howard’s case represents a peculiar application of the statute. The videos in question do not depict a child engaged in sexually explicit conduct; they show Howard masturbating next to a fully clothed and sleeping child. In other words, the videos are not child pornography.

The government’s theory is that Howard violated the statute by “using” the clothed and sleeping child as an object of sexual interest to produce a visual depiction of himself engaged in solo sexually explicit conduct. Over Howard’s objection, the district judge submitted the case to the jury with instructions that permitted conviction on the government’s theory. The jury found him guilty. Howard appeals, challenging only his convictions on these two counts.

The government’s interpretation of § 2251(a) stretches the statute beyond the natural reading of its terms considered in context. Accordingly, the two convictions cannot stand. We vacate the judgment on these counts and remand for resentencing.

Vacated and remanded

Full Text

7th Circuit Court of Appeals

Case Name: John Myers v. Ron Neal

Case No.: 19-3158

Officials: FLAUM, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Habeas Relief – Ineffective Assistance of Counsel

Indiana University student Jill Behrman went for a bike ride one morning but never re‐ turned. The police later found her bicycle less than a mile from the home of John Myers II, on the north side of Bloomington. Two years later a woman named Wendy Owings came forward confessing to the murder, but the case was reopened when a hunter came upon Behrman’s remains far from the location Owings described. A renewed investigation led the authorities to Myers, who was eventually charged with the murder. Six years after Behrman’s disappearance, a jury convicted him. Multiple Indiana courts affirmed. Myers then sought relief in federal court, and the district court granted his application for a writ of habeas corpus, concluding that Myers’s counsel performed so deficiently at trial as to undermine confidence in the jury’s guilty verdict. We reverse.

The district court was right about the performance of Myers’s trial counsel. It was deficient and plainly so in at least two ways. What leads us to reinstate Myers’s conviction, though, is the strength of the state’s case against him separate and apart from those errors. Among the most convincing evidence were the many self‐incriminating statements that Myers made to many different people, like telling his grandmother that, if the police ever learned what he did, he would spend the rest of his life in jail. The weight of these statements, when combined with other evidence, leads us to conclude that his counsel’s deficient performance did not prejudice him. The proper outcome is to respect the finality of Myers’s conviction in the Indiana courts.

Reversed

Full Text

7th Circuit Court of Appeals

Case Name: Carmen Wallace, et al., v. Grubhub Holdings, Inc., et al.,

Case No.: 19-1564; 19-2156

Officials: BAUER, KANNE, and BARRETT, Circuit Judges.

Focus: Statutory Interpretation – Federal Arbitration Act – Residual Category

Section 1 of the Federal Arbitration Act exempts from the Act’s coverage “contracts of employment” of two enumerated categories of workers—“seamen” and “railroad employees.” But it also exempts the contracts of a residual category—“any other class of workers engaged in foreign or interstate commerce.” This appeal requires us to decide whether food delivery drivers for Grubhub are exempt from the Act under § 1’s residual category.

Section 1 of the FAA carves out a narrow exception to the obligation of federal courts to enforce arbitration agreements. To show that they fall within this exception, the plaintiffs had to demonstrate that the interstate movement of goods is a central part of the job description of the class of workers to which they belong. They did not even try do that, so both district courts were right to conclude that the plaintiffs’ contracts with Grubhub do not fall within § 1 of the FAA. Accordingly, the judgments are AFFIRMED.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Carlton Gunn v. Continental Casualty Company

Case No.: 19-2898

Officials: MANION, HAMILTON, and BARRETT, Circuit Judges.

Focus: Insurance Claim – Jurisdiction

Most appellate opinions try to answer questions of law. This opinion is an exception. We ask many more questions than we can answer here. They concern choice-of-law principles as applied to the unique challenges of interstate regulation of insurance in the United States, and more specifically as applied to a group insurance policy issued in one jurisdiction to an employer with employees in every state. We realize we are leaving a good deal of work for the capable district judge on remand. We hope he will receive help on choice-of-law issues from counsel for the parties and interested amici curiae.

Plaintiff Carlton Gunn brought this case as a putative class action against defendant Continental Casualty Company, which issued a group long-term care insurance policy to Gunn’s employer, the federal judiciary, in Washington D.C. Gunn alleged that Continental breached its contract, committed torts, and violated consumer protection laws by raising his premiums dramatically. Continental persuaded the district court to dismiss the case on the pleadings based on its assertion of a filed-rate defense, relying on the Washington state Insurance Commissioner’s approval of the new, higher premiums for individual insureds in Washington. The parties’ briefs in the district court and on appeal raised the issue of choice of law but offered little help in resolving it.

The appellate briefs and arguments make clear that choice of law is critical in this case, but they leave too many unanswered questions. Which state’s or states’ law creates Gunn’s causes of action? Does that jurisdiction recognize an applicable filed-rate defense, and if so, what are its contours? Which state or states have authority to approve premium rates under the group policy? If one state otherwise offers Gunn a remedy but another state with authority has approved Continental’s rates, which state’s authority controls and which must yield, and why? We raised these and other questions in oral argument, but without satisfactory answers. Given their importance to the larger framework of multistate insurance regulation, we conclude that the best resolution of this appeal is to let the adversary process take its course, with some general direction from us to ensure that the adversaries focus on the critical issues. We therefore reverse and remand for further proceedings.

Reversed and remanded

Full Text

7th Circuit Court of Appeals

Case Name: Taysheedra D. Allen-Noll v. Madison Area Technical College, et al.,

Case No.: 19-2639

Officials: EASTERBROOK, BRENNAN, and ST.EVE, Circuit Judges.

Focus: Abuse of Discretion – Summary Judgment and Sanctions

When her teaching contract with Madison Area Technical College was not renewed, Taysheedra Allen-Noll sued her former employer alleging racial discrimination and harassment. After discovery the college moved for summary judgment, but Allen-Noll failed to follow the district court’s procedures. The record was largely established by the defendants’ submissions, and the college prevailed.

Allen-Noll appeals, challenging the grant of summary judgment and arguing the district court abused its discretion by accepting the college’s findings of fact and denying her motion to compel further discovery. We affirm the district court’s rulings. This appeal is also frivolous, so we grant the college’s request to sanction Allen-Noll and her lawyer.

Affirmed in part. Granted in part.

Full Text

7th Circuit Court of Appeals

Case Name: Thomas Roberts, et al., v. Alexandria Transportation, Inc., et al.,

Case No.: 19-2414; 19-2395

Officials: EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.

Focus: Statutory Interpretation – Illinois Joint Tortfeasor Contribution Act

At a road construction site in Madison County, Illinois, a flagger abruptly turned his sign from “SLOW” to “STOP.” Thomas Roberts slammed on his brakes, and Alexandre Solomakha rear-ended him, causing Roberts serious injury and prompting a lawsuit against Solomakha and transportation companies Alexandria Transportation, Inc. and Alex Express, LLC. The Alex Parties filed a thirdparty complaint for contribution against the general contractor for the construction site, Edwards-Kamalduski (“E-K”), and a subcontractor, Safety International, LLC (“Safety”). E-K settled with the plaintiffs, and the district court dismissed it from the Alex Parties’ contribution action with prejudice. The Alex Parties later settled with the plaintiffs, as well.

With E-K out of the picture, though, the Alex Parties’ case becomes more complicated. The Alex Parties contend that the Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100 (the “Contribution Act”), allows for the court to redistribute E-K’s share of liability as determined by a jury between the Alex Parties and Safety, but Safety disagrees. The controversy surrounds the meaning of a particular phrase in the statute— “unless the obligation of one or more of the joint tortfeasors is uncollectable.” We can find no decision of an Illinois court that has addressed whether the “obligation” of a settling party is “uncollectable” pursuant to 740 ILCS 100/3. Rather than decide this issue in the first instance, we respectfully request that the Illinois Supreme Court do so.

Question certified

Full Text

7th Circuit Court of Appeals

Case Name: Karen Vaughn v. Jennifer Walthall, et al.,

Case No.: 19-1244

Officials: BAUER, EASTERBROOK, and WOOD, Circuit Judges.

Focus: Injunctive Relief – Medicaid Programs  

Federal law prohibits discrimination against persons with disabilities, and in furtherance of that goal, it requires states to administer public programs “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” That duty is bounded by the standard of reasonableness; states are not obligated fundamentally to alter their programs to comply.

At issue here is whether the anti‐discrimination mandate compels a state to structure and fund its Medicaid programs in a manner that ensures that all Medicaid recipients who desire to receive health care in a home setting may do so regardless of cost to the state. In addition, we must decide how, if at all, the state’s adoption after oral argument of a pilot program that provides greater flexibility to those who want home health care affects this case. We conclude that we still face a live controversy but that further proceedings are necessary. We also conclude that the permanent injunction issued by the district court swept too broadly. If any injunction is still warranted—a question on which we take no position—it must be narrowly tailored to any violations that are proven.

Vacated and remanded

Full Text

7th Circuit Court of Appeals

Case Name: Frank Pierri v. Medline Industries, Inc.,

Case No.: 19-3356

Officials: WOOD, BARRETT, and SCUDDER, Circuit Judges.

Focus: EEOC Claim – Retaliation

Frank Pierri was a chemist for Medline Industries. Initially, he did well at the company, but problems arose after he asked for accommodations to enable him to take care of his ailing grandfather. Medline was receptive, and it ultimately gave him limited time off for this purpose under the Family and Medical Leave Act (FMLA). Pierri asserts that his supervisor then became so hostile to him that he needed personal time off because of the stress. He left on FMLA leave and never returned. Medline eventually terminated his employment, causing Pierri to sue the company. The district court granted summary judgment for Medline, and we affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Nick Pearson, et al., v. Target Corp., et al.,

Case No.: 19-3095

Officials: ROVNER, WOOD, and HAMILTON, Circuit Judges.

Focus: Class Action – Objector Blackmail

We address here a recurring problem in class-action litigation known colloquially as “objector blackmail.” The scenario is familiar to class-action litigators on both offense and defense. A plaintiff class and a defendant submit a proposed settlement for approval by the district court. A few class members object to the settlement but the court approves it as fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e)(2). The objectors then file appeals. As it turns out, though, they are willing to abandon their appeals in return for sizable side payments that do not benefit the plaintiff class: a figurative “blackmail” by selfish holdouts threatening to disrupt collective action unless they are paid off. See Brian T. Fitzpatrick, The End of Objector Blackmail?, 62 Vand. L. Rev. 1623, 1624 (2009).

That’s what happened here. Three objectors appealed the denial of their objections to a class action settlement and then dismissed their appeals in exchange for side payments. The last time this case was here, we called such “selfish” objector settlements “a serious problem.” Pearson v. Target Corp., 893 F.3d 980, 986 (7th Cir. 2018) (Pearson II). The question before us now is whether, on motion of another class member, the district court had the equitable power to remedy the problem by ordering the settling objectors to disgorge for the benefit of the class the proceeds of their private settlements. The district court held that it did not, finding that the objectors had not intended or committed an illegal act nor taken money out of the common fund.

We reverse. Falsely flying the class’s colors, these three objectors extracted $130,000 in what economists would call rents from the litigation process simply by showing up and objecting to consummation of the settlement to slow things down until they were paid. We hold that settling an objection that asserts the class’s rights in return for a private payment to the objector is inequitable and that disgorgement is the most appropriate remedy. Objectors who settle their objections for amounts in excess of their shares as class members are, in essence, “not paid for anything they owned.” Young v. Higbee Co., 324 U.S. 204, 213 (1945) (reversing denial of remedy in comparable private settlement of class-based objections). The objectors’ settlement proceeds here belonged in equity and good conscience (ex aequo et bono, according to the old formula) to the class and ought to be disgorged. We therefore reverse the district court’s order denying disgorgement and remand for further proceedings.

Reversed and remanded

Full Text

7th Circuit Court of Appeals

Case Name: VHC, Inc., v. Commissioner of Internal Revenue

Case No.: 18-3717; 18-3718

Officials: FLAUM, BARRETT, and ST. EVE, Circuit Judges.

Focus: Tax Deductions – Bad Debts

For more than a decade, Ron Van Den Heuvel received cash payments from VHC, a company founded by his father and owned by his family. These payments primarily supported Ron’s business ventures but also helped him pay personal taxes and cover other personal expenses. Ron didn’t pay VHC back, and the company wrote down these payments as “bad debts” for which it received tax deductions. After a years-long audit, the IRS concluded that VHC never intended to be paid back and that these payments were not bona fide debts qualifying for the deduction. The Tax Court upheld this determination and rejected VHC’s alternative theories as to why the payments qualified for a deduction. We see no error in this decision and affirm the Tax Court’s judgment.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Shaun Koenig v. Timothy N. Aldrich, et al.,

Case No.: 2019AP242

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Nuisance Claim – Intrusion and Trespass Exception

Shaun Koenig appeals an order concluding that he trespassed on land owned by Dale Aldrich, Donald Aldrich, Jeffrey Aldrich, and Timothy Aldrich (collectively, “the Aldriches”), and that the removal of a fence erected by the Aldriches was not warranted. Koenig argues there should be a trespass exception for his intrusion into the immediate airspace above the Aldriches’ property. Koenig also contends the circuit court erred by concluding that an L-shaped fence that the Aldriches erected along the corner of Koenig’s property did not constitute a nuisance pursuant to WIS. STAT. § 844.10 (2017-18), thus requiring its removal. We reject Koenig’s arguments and affirm the order.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael L. Parks

Case No.: 2019AP654-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Exclusion of Evidence

Michael Parks appeals a judgment, entered upon a jury’s verdicts, convicting him of three counts of first-degree sexual assault. He also appeals an order denying him postconviction relief. Parks asserts the circuit court erroneously exercised its discretion by excluding evidence of: (1) specific instances where the victim, Sara, stole money from her family members to support her drug addiction; and (2) a prior allegation of sexual assault that Sara made. Parks also asserts that the exclusion of this evidence violated his constitutional rights to present a complete defense, to confront his accuser, and to a fair trial. Further, he argues that his trial counsel performed ineffectively by not raising certain arguments he contends would have supported the admission of the excluded evidence, and also that he is entitled to a new trial in the interest of justice. We reject each of Parks’ arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: Chalet at the River, LLC, v. Devonzell Holdingsworth d/b/a Crab it Your Way

Case No.: 2019AP2241

Officials: BRASH, P.J.

Focus: Abuse of Discretion – Breach of Lease

Devonzell Hollingsworth d/b/a/ Crab It Your Way (“Hollingsworth”) appeals a judgment by the trial court for a writ of restitution of premises leased by Hollingsworth and owned by Chalet at the River, LLC (the “Chalet”). The trial court held that Hollingsworth had breached his lease with the Chalet, specifically with regard to a provision that required Hollingsworth to maintain the common area bathrooms.

After reviewing the record, we conclude that the trial court did not make findings sufficient to demonstrate that it properly exercised its discretion in finding that Hollingsworth had breached the lease. We therefore reverse the judgment for the writ of restitution of the premises, and remand this matter for further proceedings consistent with this opinion.

Full Text

WI Court of Appeals – District II

Case Name: City of Waukesha v. Isaac Kinuthia

Case No.: 2020AP431

Officials: DAVIS, J.

Focus: Due Process Violation

Isaac Kinuthia, appearing pro se, appeals a parking citation he received in the City of Waukesha. The citation was for parking within fifteen feet to the near limits of a crosswalk, in violation of Waukesha Municipal Ordinance § 7.04. This ordinance, in turn, mirrors WIS. STAT. § 346.53(5), which makes this proscription statewide. Kinuthia claims that it is a violation of constitutional due process for the ordinance, and presumably the statute, not to require signage alerting motorists of the no-parking zone.

Kinuthia contested the ticket he received in the municipal court, which upheld the citation after conducting a trial on the issue. A hearing in the circuit court affirmed the conviction. He now appeals to this court. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Jason Lyle Wahoske, et al., v. Hartford Fire Insurance Company, et al.,

Case No.: 2019AP2036

Officials: Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

Focus: Recreational Immunity

In anticipation of annual hunting seasons beginning in 2009, each summer Robin Stibb would affix a tree stand that he owned to a tree on land owned by his parents. Then, about six months later, Stibb would take the stand down. In November 2017, a friend of Stibb’s, Jason Wahoske, was bow hunting from Stibb’s stand when Wahoske fell to the ground and was injured, resulting in this litigation.

Wahoske commenced the action by filing a products liability claim against Fleet Wholesale Supply Company LLC, Mills Fleet Farm LLC, and Hartford Fire Insurance Company (collectively, “Fleet Farm”), based in part on the allegation that Stibb had purchased the tree stand from a Mills Fleet Farm store. Fleet Farm filed a third-party action against Stibb and Rural Mutual Insurance Company (collectively, “the Stibb parties”), on the theory that Stibb had negligently maintained and installed the stand. Wahoske amended his complaint to state a direct action claim against Stibb’s insurer Rural Mutual. The Stibb parties moved for summary judgment on the ground that they are entitled to recreational immunity under WIS. STAT. § 895.52 (2017-18). The circuit court granted the motion.

Wahoske and Fleet Farm appeal. They contend that the Stibb parties are not entitled to recreational immunity for various reasons. We reject those arguments based on Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, 248 Wis. 2d 567, 636 N.W.2d 727, which addresses similar facts to those presented here and resolved them in favor of immunity. Under the reasoning in Peterson, as discussed in Roberts v. T.H.E. Ins. Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492, the Stibb parties are entitled to immunity because at the time of the accident Stibb was the “owner” of a “structure,” namely a tree stand that was intended to remain in place for an extended period, which counts as “property” that was being used for a “recreational activity,” hunting. See WIS. STAT. § 895.52(1), (2). Accordingly we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher J. Vaaler

Case No.: 2019AP2174-CR

Officials: FITZPATRICK, P.J.

Focus: Unlawful Traffic-stop Claim – Reasonable Suspicion – Suppression of Evidence 

Christopher Vaaler appeals a La Crosse County Circuit Court judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI), third offense, and misdemeanor bail jumping. See WIS. STAT. §§ 346.63(1)(a) and 946.49(1)(a). Vaaler contends that evidence obtained during, and subsequent to, field sobriety tests should have been suppressed by the circuit court because the arresting officer lacked reasonable suspicion to extend the traffic stop to conduct the field sobriety tests. I reject Vaaler’s arguments and affirm.

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests