Supreme Court Accepts New Court Cases for 2008-09
By Andrew Cook

The Hamilton Consulting Group

Oct 10, 2008

© 2008 The Hamilton Consulting Group

The Wisconsin Supreme Court voted last month to accept 17 new cases for the 2008-09 term. Below are synopses of five cases accepted that involve products liability, medical malpractice, Wisconsin Lemon Law, and strict liability issues. The full list of the cases can be found at the Wisconsin Supreme Court’s website.

Horst v. Deere & Co. – 2006AP2933

The question before the Court is whether Wisconsin law includes a "bystander contemplation test" as part of its strict products liability jurisprudence.

In this case, the owner of a John Deere riding lawn mower intentionally activated the manual override button so he could mow his lawn "in reverse." The owner then accidentally backed over his two-year-old son, resulting in severe injuries.

The owner sued Deere & Co. claiming negligence and strict liability.  Specifically, the owner alleged that the manufacturer breached an independent duty it owed to third-party bystanders by providing an "override" feature that allows “back-up” mowing.

Deere & Co. moved for summary judgment, arguing that the “consumer contemplation test” barred the owner’s strict liability claim. Under this test, a claimant must show that the product was more dangerous than the ordinary consumer or user would have contemplated. The plaintiff in this case argued that prior case law extended strict liability to bystanders, not just consumers.

The jury found for Deere & Co. The Court of Appeals affirmed. The issue before the Supreme Court is whether the lower courts misinterpreted existing case law by holding that a manufacturers' § 402A duty to design a reasonably safe product as to bystanders is satisfied if the product is not unreasonably dangerous to the actual user consumer.

Genrich v. OHIC – 2007AP541

On July 23, 2003, Robert Genrich underwent surgery to remedy a perforated duodenal ulcer. The surgeons and/or nurses unknowingly left a sponge inside Genrich's abdomen. After the surgery Genrich showed signs of an infection. Initially, the doctors were unable to successfully figure out the cause of the infection and treat it. The doctors ultimately determined the likely cause was a sponge and operated a second time on Aug. 8, 2003. Despite removing the sponge, Genrich’s infection worsened. Genrich passed away three days later on Aug. 11, 2003.

Genrich’s wife hired an attorney and filed suit on Aug. 9, 2006. The lawsuit included a claim by the Estate against the hospital, the health care providers and their insurers, for Genrich’s pain and suffering. The action also included a wrongful death claim by Genrich’s wife.

In October, 2006 the defendants filed a motion to the dismiss claims as time-barred under the statute of limitations. The circuit court granted the motion and dismissed the case. According to the court, the latest date which Genrich suffered an injurious change was when he was forced to undergo a second surgery on Aug. 8, 2003. According to the circuit court, because the action wasn’t filed until Aug. 9, 2006—beyond the three years statute of limitations—the action was not timely.

On appeal, Genrich's wife argues that her wrongful death claim could not have accrued until her husband's death, which occurred on Aug. 11, 2003. Thus, according to her argument, the complaint filed on Aug. 9, 2006 was timely.

A decision by the Supreme Court may clarify existing case law and the statute of limitations as they relate to wrongful death claims involving allegations of medical malpractice.

Bubb v. Brusky -- 2007AP619

The Supreme Court is asked to determine whether the trial court committed reversible error when it precluded the jury from considering an informed consent claim by a patient in a medical malpractice case.

The patient was taken to the hospital after falling to the floor during dinner. The emergency room doctor reviewed the patient’s symptoms and ordered various tests. After being reviewed and tested, the patient told the ER doctor he felt better and was released from the hospital. Before the patient’s release, the ER doctor consulted with a neurologist. The two doctors determined that the patient would see the neurologist in a follow-up appointment. Before the follow-up appointment the patient suffered a stroke. The doctors discovered that the patient's right carotid artery showed a 90-percent blockage, causing the stroke.

The patient filed suit claiming the doctors’ negligence caused serious and permanent injuries. The trial court dismissed the patient’s claims. The patient filed for a new trial arguing that the circuit court improperly dismissed the informed consent jury instruction and special verdict question. Specifically, the patient argued that sufficient evidence supported his claim that the doctors failed to adequately inform him of alternate, viable treatment options and thereby prevented him from giving informed consent to be sent home from the emergency room.

A decision by the Supreme Court should help clarify the law on informed consent in medical malpractice cases.

Tammi v. Porsche – 2008AP1913-CQ

The case involves Wisconsin Lemon Law issues certified to the Wisconsin Supreme Court by the United States 7th Circuit Court of Appeals.

The plaintiff leased a 911 Porsche Turbo. The plaintiff took the car in for numerous repairs to fix the spoiler. A year after leasing the vehicle the plaintiff filed a complaint alleging a violation by Porsche of the Wisconsin Lemon Law. During the course of the lease the plaintiff paid the initial payment and 21 scheduled monthly payments, some of which were paid after the suit was filed. The plaintiff continued to make payments during litigation and eventually exercised the option to purchase the vehicle despite the problems associated with the spoiler.

The issues before the Supreme Court are:

1. Whether a consumer is entitled to recover the amount of the purchase price of a vehicle if, after making the Lemon Law demand, the consumer exercises an option to purchase the vehicle as provided in the lease?

2. If a consumer is entitled to recover the vehicle purchase price when he exercises the purchase option provided in the lease, does the purchase amount qualify as pecuniary loss subject to the Lemon Law’s doubling provision?

3. If both of these questions are answered in the affirmative, is the buyer entitled to keep the purchased vehicle in addition to the receipt of the damage award, or must the vehicle be returned to the manufacturer?

4. Last, is the damage award under the Wisconsin Lemon Law subject to a reduction for reasonable use of the vehicle?

Behrendt v. Gulf Underwriters – 2006AP2910

The Wisconsin Supreme Court is asked to determine whether a company that allowed its employees to use company materials and equipment to fabricate items outside of work is liable when those items injure another person.

Silvan Industries, Inc. manufactures pressurized tanks. Silvan had a policy allowing employees to use scrap metal and company tools to makes items for personal use.

One of Silvan’s employees used materials to fabricate a large pressurized tank for his son-in-law, who in turn used the tank for his oil change business. The plaintiff, an employee at the oil change business, was injured while operating the tank that was fabricated by the Silvan employee. The plaintiff sued Silvan, alleging negligence, strict liability, and vicarious liability.

The circuit court ruled that there was no strict liability against Silvan because the company did not manufacture the tank. The court further decided that even if Silvan was negligent, the negligence was too remote from the injury and noted that public policy considerations precluded an award. The Court of Appeals affirmed.

The Supreme Court is asked to determine whether Silvan owed the plaintiff a duty under Wisconsin law and pursuant to existing case law. Additionally, the Court is asked to determine whether Silvan is entitled to summary judgment under Wisconsin negligence law for its own negligence regarding its policy of allowing employees to use Silvan materials outside of work. Last, the Court will determine whether Silvan is entitled to summary judgment under a vicarious liability theory.