Immunity Not Available To Emergency Responders When They Violate Statutory Requirement To Operate “With Due Regard Under The Circumstances For Safety Of All Persons.”

The Supreme Court’s latest immunity decision, Legue v. City of Racine, 2014 WI 92, came out last week. The cases involves a car collision between plaintiff’s car and a City of Racine squad car responding to an emergency dispatch.  Before the collision in the intersection, the officer slowed her squad below the speed limit and activated the lights and sirens.   The case went to trial and, upon post-verdict motions, the trial court dismissed under immunity finding that her decision to enter the intersection was discretionary, along with all her other allegedly negligent decisions as she proceeded through that intersection.

The Supreme Court reverses, concluding that immunity is not available to emergency responders when they violate the statutory requirement to operate an emergency vehicle “with due regard under the circumstances for the safety of all persons.” The Court holds “we hold that the officer’s acts in the instant case are outside the scope of the immunity statute and the officer is liable for negligence.”  2014 WI 92, ¶ 133.


 Some background is important.

The traffic code privileges emergency responders to violate rules of the road during emergencies. Wis. Stat. § 346.03. Emergency vehicle operators may proceed past a stop sign or signal “after slowing down … for safe operation,” § 346.03(2)(b), and giving a visual and audible warning signal, § 346.03(3).

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7th Circuit Revives Risk-Contribution Theory in WI Lead Paint Cases

Yesterday the 7th Circuit reversed a 2010 district court decision which ruled that the “risk-contribution theory” violated substantive due process, breathing new life into plaintiff’s case and likely other previously-pending lead paint cases.

In Gibson v. American Cyanide, et al., plaintiff sued former manufacturers of paint containing white lead carbonate pigments, an ingredient that was ultimately banned in the 1970s.  Plaintiff alleges he was poisoned by the white lead carbonate pigment in the paint in his home.  However, he could not identify what specific manufacturer produced the paint he was exposed to.  Thus, his case relied on the risk-contribution theory established by the Wisconsin Supreme Court in Thomas v. Mallet, 2005 WI 129, 701 N.W.2d 523.  The risk-contribution theory allowed Plaintiff to proceed with his claim without having to identify the specific entity or entities that produced or sold the product producing the harm.

In 2010, the district court in Gibson granted the defendants’ motion for summary judgment, holding that the risk-contribution theory of Thomas v. Mallet violated substantive due process.  This ruling, just as the Thomas v. Mallet ruling, had wide-ranging effects.  As noted in my previous article, defendants in pending lead paint cases sought and received stays pending a resolution of the Gibson appeal.

Now those cases may be able to move forward once again. The 7th Circuit ruling concluded that the Constitution grants broad deference to states to develop their common law, and therefore dismissed the defendants’ primary argument (and the one on which the district court relied) that the risk-contribution theory violates the substantive component of the Due Process Clause.  The court held that the risk-contribution theory is not arbitrary or irrational, and therefore comports with due process.

Further, the 7th Circuit agreed with a Milwaukee County Circuit Court ruling in Clark that stated that the retroactive application of Wis. Stat. § 895.046 (abolishing the risk-contribution theory) violated due process.  Wis. Stat. § 895.046 was passed by the Wisconsin Legislature in 2011 in response to Thomas v. Mallet, and was amended shortly thereafter to have a retroactive effect.

The effect of Gibson and § 895.046 is that any cases which were filed between the Thomas decision and the effective date of § 895.046 are likely to resume moving forward.  The defendants in Clark have moved for leave to appeal the Milwaukee Circuit Court’s rejection of the retroactivity of § 895.046 (Appeal No. 2014AP775–LV), however it seems unlikely that appeal would be granted or successful now that the 7th Circuit has chimed in and agreed with the circuit court’s ruling.  Yet despite all of this, one thing remains clear: § 895.046 still applies to cases filed after its effective date, so no new lead paint cases relying on the risk-contribution theory are expected to be filed under the current status of the law.

State Law Claims Against Generic Brand Defendants Preempted by FDCA

We previously wrote about how state courts have differed in their approaches and findings regarding liability against name-brand drug manufacturers for claims against generic offshoots of the name-brand.  As parties and courts wrestle with these differing approaches, recent case law from the Supreme Court has clarified that many product liability claims normally brought under state law are preempted by federal law under the Food, Drug, and Cosmetics Act (FDCA).  This was recently explained by the court in Wagner v. Pfizer, 2014 WL 3447476 (W.D.Wis.).

In Wagner, the plaintiff alleged that she took several medications of hormone therapy to combat her endometrial hyperplasia, which is a buildup of the uterine lining.  This condition “usually . . . result[s from] too much estrogen and not enough progesterone, and the condition increases the risk of endometrial cancer.” Id.  To attempt to correct this imbalance between estrogen and progesterone, the plaintiff was prescribed various synthetic progestins, including brand name medications and generic brand medications.  Continue reading

No Deliberate Indifference Where Non-emergency Complaints Made Outside Institutional Policy

In Smith v. Randle, 2014 WL 3558448 (N.D.Ill.), the plaintiff inmate alleged that numerous correctional officers, correctional facility administrators, and correctional facility medical staff were deliberately indifferent when they ignored his repeated requests for medical care over the course of two years.   Upon his entry into custody, per correctional facility policy, the inmate was examined by various medical staff.  During the examination, the inmate informed one of the doctors that he had nerve damage in his left arm and was taking medication for that.  He also advised that he suffered from sleep apnea and had thus been sleeping with the assistance of a Continuous Airway Pressure Device (“CPAP”) machine.  The doctor noted these things in the inmate’s medical chart. Continue reading

Insurer Must Indemnify Third Party For Negligence Resulting In Injury To Its Insured

The Wisconsin Supreme Court is now issuing opinions almost daily as it closes out this term, and today a much-anticipated insurance decision was released in Blasing v. Zurich American Insurance Company, 2014 WI 73.  I previously wrote about the court of appeals decision in this case, which the supreme court affirmed, and explained that the scope of the decision should put insurers on high alert. This decision allows a third party to obtain indemnification for his own negligence resulting in injury to the insured under the insured’s policy.

The plaintiff was injured by an employee of Menards while the employee was loading the plaintiff’s truck with lumber. The plaintiff had automobile insurance through American Family Mutual Insurance Company. Menards argued that its employee was covered as a permissive vehicle user under the plaintiff’s insurance policy. American Family argued that it was not required to defend Menards or provide coverage for the employee who loaded lumber into its insured’s vehicle, even if it was determined that the Menards employee negligently injured the plaintiff.

The appellate decision held that coverage under the plaintiff’s policy for the Menards employee’s negligence was required by Wisconsin’s omnibus statute. Interestingly, the court of appeals was unhappy with the decision it reached but essentially said it was forced to the conclusion by the language of Wis. Stat. § 632.32. Having been accepted for review by the supreme court, there was a chance that the justices might find a way to avoid the same outcome (if they were so inclined).

However, the supreme court agreed that the Menards employee was entitled to coverage, though it did not reach the question of whether the omnibus statute required such an outcome. It first examined American Family’s argument in great detail: that requiring American Family to defend and indemnify Menards –in other words, requiring it to defend and indemnify the tortfeasor who injured its insured– would be absurd, “thus violating a cardinal rule of interpretation: A court’s interpretation should avoid absurd or unreasonable results.” 2014 WI 73, ¶ 43. At this point, the supreme court acknowledged that it agreed with the court of appeals in the sense that, “to some,” the outcome may seem “anomalous.” Nevertheless, it held the outcome was not unreasonable or absurd. ¶ 44. It also explained why it did not find the result troubling by analyzing four possible ways of stating the perceived anomaly:

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Plaintiff’s Attorney Cannot Veto Client’s Settlement of Lemon Law Claims

It’s been a while since I’ve posted a case update, and for that I apologize. I have been awaiting the release of a specific supreme court decision and was simply too distracted by that case to think about any others. That, and the Wisconsin Supreme Court has been releasing mostly criminal and attorney discipline decisions as this term winds to a close. But today a decision was released in the case I was watching (along with several others) and I can now breathe a sigh of relief and resume blogging with abandon.

And not to toot my own horn, but: beep beep! In Betz v. Diamond Jim’s Auto Sales, 2014 WI 66, the supreme court reversed a published decision of the court of appeals, 2012 WI App 131, and ruled in favor of the defendant-respondent-petitioner who happens to be represented by me and Larry Drabot here at Crivello Carlson.

In a nutshell, Betz sued Diamond Jim’s under the Lemon Law statute, § 218.0163(2), and under § 100.18(11)(b)2, related to his purchase of a Cadillac Escalade. Betz hired self-proclaimed “Lemon Law King” Vince Megna to represent him. However, during the pendency of the litigation, and unbeknownst to counsel for either party, Betz and the owner of Diamond Jim’s met and hammered out their own settlement agreement for $15,000. The agreement did not specifically mention attorney fees, but it did state that it was a settlement of “any and all claims” related to the lawsuit. When Megna found out about the settlement, he filed a motion seeking to recover statutory attorney fees from Diamond Jim’s–despite the fact that Diamond Jim’s thought it had settled the matter in its entirety. Megna claimed that he was owed $16,808.50 in fees at the time of the settlement. See ¶14.

Diamond Jim’s argued that the settlement agreement encompassed the entirety of the claims, including Betz’s claim for attorney fees. Because the right to recover statutory attorney fees belongs to the client and not to the attorney, Betz settled that claim and precluded any further attempt to recover those fees from Diamond Jim’s. Diamond Jim’s also argued that while the public policy underlying fee-shifting statutes is undisputed, public policy also favors settlement. If plaintiff’s attorneys are allowed to veto settlements of fee shifting claims, a conflict of interest necessarily arises and public policy is thwarted.

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Qualifying “Care” Under FMLA Does Not Require The Employee To Be “Primary” Caregiver

In Gienapp v. Harbor Crest, the Seventh Circuit issued a concise decision that eviscerated entirely the defendant-employer’s arguments as to why it did not violate the Family Medical Leave Act, 29 U.S.C. 2601, et seq. Perhaps it was the brevity and simplicity of the court’s analysis, but the decision gave me the distinct impression that the court thought employer was a cold-hearted jerk without ever saying as much. The district court had granted summary judgment in favor of the employer, but the Seventh Circuit reversed and granted summary judgment in favor of the employee. In so doing, the court held that a combination of assistance to one’s cancer-stricken adult daughter, plus care of grandchildren that could “take a load off the daughter’s mind and feet,” counts as “care” under the Act.

Susan Gienapp worked at Harbor Crest, which is a residential nursing care facility in Illinois. In January 2011, she told her manager that she would need to take time off to care for her adult daughter who was undergoing treatment for thyroid cancer. The manager granted the leave under the FMLA and while she was on leave, Gienapp mailed in the requisite FMLA form but left blank a question about the leave’s expected duration. A physician’s statement sent with the form indicated that the daughter’s recovery was uncertain and that if she did recover, she would require assistance through at least July 2011. Harbor Crest never asked Gienapp to fill in that blank, nor did it send her any written questions about the duration of the leave as the leave itself progressed.

From the information sent by Gienapp, Gienapp’s manager inferred that Gienapp would not return by April 1, 2011, which was the end of the 12-week limit of her FMLA leave. However, Gienapp did return and when she reported for work on March 29, she found that her employer had hired someone to replace her sometime in mid-February. Gienapp was told she no longer had a job.

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ADA Accommodations Need Not Be What Employee Had In Mind

The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), prohibits employers from discriminating against qualified individuals by failed to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee” unless the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A).

In a recent Seventh Circuit decision, the court reiterated that even if the accommodation chosen by the employer is not precisely what the employee had in mind, it may still fulfill the requirements of the ADA. See Bunn v. Khoury Enterprises, Inc., No. 13-2292. (It’s almost as if the Seventh Circuit was working from the Rolling Stones’ words of wisdom: “you can’t always get what you want…you get what you need.”)

Joshua Bunn is legally blind and began working at a Dairy Queen in Indiana in July 2010. Hourly employees at the Dairy Queen were usually required to “rotate between various duty stations” to do work including “preparing ice cream treats, preparing grilled food, working the cash register, maintaining the dining area, and more.” Bunn was initially assigned to the “Chill Department” in which he was to prepare ice cream treats. However, Bunn was unable to perform duties in the Chill Department without accommodation because he could not read ingredient labels and monitors displaying orders.

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Employer Liability for Inherently Dangerous Activity May Turn on “Knew or Had Reason to Know” Analysis

The Wisconsin Supreme Court is picking up its pace in issuing decisions as it nears its self-imposed deadline of June 30 (and I hear that the court has even voted to limit the time it spends on each case’s deliberations in hopes that it helps them meet their end-of-the-month goal). Another new decision was just issued in Brandenburg v. Luethi, 2014 WI 37,  a case in which the court addressed the “inherently dangerous activity” exception to the general rule of nonliability for damages caused by an independent contractor. The court confirmed that the exception is still good law and emphasized that in order to impose liability, a plaintiff must also establish that the employer knew or had reason to know that the activity in question posed a risk and that it required precautions.

Specifically, the court was asked to determine whether the “inherently dangerous activity” exception to the general rule of nonliabiliy is even good law anymore. If the court determined that the exception should continue, the court would then need to determine whether spraying herbicide is an inherently dangerous activity. The court held that the exception is still good law and declined to abandon it. The court also held that spraying herbicide is an inherently dangerous activity, but it remanded the question of whether the exception applied to the present case because factual questions had been left unresolved regarding whether the defendant knew or had reason to know about the danger inherent in the work.

The facts were relatively simple: the defendant, Luethi, hired a company to spray herbicide on his property, but the herbicide caused extensive damage to Luethi’s neighbors’ property and killed 79 of the neighbors’ trees. The court explained the steps of its analysis as follows: first, is the activity inherently dangerous? This is usually a question for the trier of fact, but in certain “unusual” cases, it may be a question of law. The test for whether an activity is inherently dangerous has two parts. An activity is inherently dangerous 1) if the activity poses a naturally expected risk of harm and 2) if it is possible to reduce the risk of the activity to a reasonable level by taking precautions. ¶4. Because the chemical used was capable of killing 56 woody plan species, the court determined that it posed a “naturally expected risk of harm to trees on neighboring properties.” ¶10. And because the record contained undisputed evidence that it is possible to reduce that risk by taking precautions, the court found as a matter of law that the activity of spraying herbicides was an inherently dangerous activity.

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Definition Of “Using” A Vehicle Under Wis. Stat. § 632.32 Has Limits

The supreme court issued a new decision today, reversing a published court of appeals decision, in Jackson v. Wisconsin County Mutual Insurance Corp., 2014 WI 36. I previously wrote about the court of appeals decision last summer, explaining that the court’s holding appeared to expand the definition of the word “using” in Wis. Stats. § 632.32(2)(c) to include actions that do not even require the user to be in contact with the vehicle. Today, the supreme court rejected the court of appeals’ analysis and explained that while “using” is generally construed broadly, the definition has limits. The court held that where a non-driver is not communicating with, signaling, or exercising active control over the vehicle at the time of injury, that person is not “using” the vehicle.

Jackson was a Milwaukee County deputy sheriff who was patrolling the parking structure and baggage drive areas at General Mitchell International Airport. Jackson was struck by a vehicle while walking in front of it to assist the driver in entering a busy lane of traffic. The court of appeals held that a sheriff who helps a motorist safely re-enter traffic in an area she is patrolling is “using” the car to 1) avoid injury to the driver, 2) avoid injury to other drivers in the traffic stream into which she was helping him merge, and 3) avoid injury to pedestrians.

In reversing that analysis, the supreme court construed the facts as a non-driver who is preparing to guide, but not yet guiding, a vehicle driven by another. ¶7. The court faulted the court of appeals for relying on a case with facts, an analysis, and a conclusion that bore no relation to the question presented by this case: whether a person outside a vehicle is using the vehicle by guiding it. ¶6. Jackson argued that her series of interactions with the driver of the vehicle she planned to guide meant she was “in the process of manipulating the vehicle, in the sense that she was controlling where it went…” ¶21. The insurer characterized Jackson’s actions as “helping the occupants of the vehicle rather than controlling or manipulating the vehicle’s movements, and notes that at the time of the accident Jackson was simply walking in the pedestrian walkway in front of the vehicle, not gesturing or waving.” ¶23.

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