Review granted in 'State v. Arias'

The Wisconsin Supreme Court has granted review in this case. (2006AP974-CR)

This certification request from the District IV Court of Appeals in Waukesha, involves questions about the constitutionality of a dog sniff of the exterior of a vehicle at the tail end of a traffic stop. The stop, which started with a police officer’s suspicion of traffic violations, ultimately resulted in the discovery of cocaine and a switchblade stashed in the cushions of the front seat.

The Supreme Court has been asked to determine if a dog sniff of a stopped vehicle constitutes a "search" under the Wisconsin Constitution, and if the dog sniff impermissibly extended the amount of time required for a traffic stop. From Clark County.

(see this earlier post)

Review granted in 'WIREdata Inc. v. Village of Sussex'

(2005AP1473, 2006AP174 and 2006AP175)

This litigation concerns the scope of the state’s open records law and its application to requests for access to large data bases created by private contractors on behalf of municipalities. Six years ago, WIREdata, a subsidiary of the Milwaukee Metropolitan Multiple Listing Service, cited the open records law in asking three municipalities to provide access to data bases containing property assessment information. The company wanted the data “to assist real estate agents.”

WIREdata asked for the information to be provided in the same format used by the municipalities’ private contractors. The municipalities denied WIREdata this access, but eventually provided the company with information in a portable document file (PDF) format. The municipalities characterized the intended use as marketing and re-sale of the requested information.

Both parties have asked the Supreme Court to review the matter [2007 WI App 22], and the Supreme Court is expected to consider, among other things: if the municipalities in effect denied the request; if third-party consultants are proper recipients of open records requests; if any of the requested information should be confidential, and what fee, if any, should apply to such requests. From Ozaukee County.

Thomas remains a puzzle

Gregory Stanford reviews Supreme Discomfort: The Divided Soul of Clarence Thomas by Kevin Merida and Michael Fletcher, in today's Milwaukee Journal Sentinel.

What if Clarence Thomas had gotten some serious psychotherapy? Would he be less inclined than he is now to vent his pent-up rage on his own race? ...

I did get to know Thomas much better; I even found myself empathizing with him at points. But by the time I put the book down, he remained a villain. ...

The authors write: "One bitter lesson Thomas has taken from his experience is that racism is a sad, immutable fact. The sooner black people realize that and gird themselves for that reality, he says, the better off they will be."

In other words, don't count on government to right racial wrongs.

I respectfully disagree. Before reading the book, I would have done so scornfully.

Should "respectfully" have an asterisk?

'McNeil v. Hansen, 2007 WI 56

(2005AP423)


Analysis from "Worker’s Compensation Law Update", by Aaron R. Berndt, Civil Trial of Wisconsin Summer Conference, August 14, 2008, Wisconsin Dells

'Zellner v. Cedarburg School District' 2007 WI 53

The Wisconsin Supreme Court issued its decision today in this case (2006AP1143-AC) on the Court of Appeals certification.
Opinion by Justice Crooks for a unanimous court.

Litigation Section opposes SB61 - Mallet [sic] Reversal

Our State Bar's Litigation Section has announced it opposes SB61, a bill

relating to: actions against manufacturers, distributors, sellers, and promoters of products.

Because Thomas v. Mallett, 2005 WI 129, was an appeal from a grant of summary judgment, the Wisconsin Supreme Court "construe[d] all facts and reasonable inferences in the light most favorable to the nonmoving party" ¶4. So does the Litigation Section.

Rationale: ... In that case, the entire lead paint industry knowingly manufactured and distributed a product they knew for years caused serious industries and deaths, particularly to young children. They then deceived the public, and several government agencies, into thinking that their product was safe, despite their own internal studies that showed it was not.

Almost all manufacturers in Wisconsin clearly identify and stand behind the products that they put into the stream of commerce. Paint manufacturers do not. Until the Thomas decision, the lead paint manufacturers were able to hide behind the fact that once their product was applied to a surface, it was almost impossible to identify the specific manufacturer, thus leaving innocent children with no recourse. ...

Update: The Section subsequently modified its rationale.

Review granted in 'Nichols v. Progressive'

The Wisconsin Supreme Court has granted review in this case. (2006AP364)

This case presents questions about the scope of "social host" liability in Wisconsin. "Social host" liability is based on the concept that, under certain circumstances, a party host serving alcohol should be responsible for the acts of guests committed under the influence of alcohol. Most states, including Wisconsin, have laws imposing liability on social hosts where alcohol is served to a minor.

On the evening of June 4, 2004, Edward and Julie Niesen allowed a large group of high-school students to hold a party on their property. They did not provide alcohol to their underage party guests, but allegedly knew that some underage guests were consuming alcohol and did not supervise or prevent it.

One of the underage guests drove away from the party under the influence of alcohol. She collided with another vehicle, injuring its occupants, all members of the Nichols family.

The Nichols sued, alleging that the Nielsens were negligent. The trial court concluded that they failed to state a claim for common law negligence, in part because the defendants did not actually provide or serve alcohol to the underage driver. The Court of Appeals [in an unpublished opinion] reversed part of the decision, concluding that the family had established a claim for common law negligence. The Court of Appeals’ decision would permit the case to go to trial. The Supreme Court is expected to consider whether a common law negligence claim may be used to impose liability on the social hosts in this situation . From Columbia County.

Review granted in 'Below v. Norton'

(2005AP2855)

This case could determine if the economic loss doctrine applies to a residential real estate transaction between private individuals.

The economic loss doctrine is intended to bar tort claims for purely economic losses in situations when the relationship between two parties involves a contract for a product. The Supreme Court has previously applied this rule of law to a commercial real estate transaction, but has not previously decided whether the doctrine applies to sales of residential real estate.

In this case, Shannon Below had purchased a home from Dion and Dana Norton and sued after discovering a break in the sewer line between the home and the street. Below asserted five causes of action, including false advertising and four forms of misrepresentation. She attempted to amend her complaint to include breach of contract, but the trial court ruled it wasn’t properly filed. The trial court further ruled that Below had not alleged a proper claim for false advertising and that the other common law misrepresentation claims were barred by the economic loss doctrine.

The Court of Appeals [2007 WI APP 9] ruled that Below’s claim of false advertising was not barred by the economic loss doctrine and reversed that part of the decision, but affirmed the dismissal of the common law misrepresentation claims due to the economic loss doctrine. From Milwaukee County.