Recent Appellate Court Decisions

The Wisconsin Supreme Court is currently taking its summer break and will return in September for the 2012-13 Term; however, important judicial decisions impacting businesses continue to be handed down by the appellate courts.


Court of Appeals, Dist. II

Maas v. American Family Mut. Ins. Co., 2011AP1661, August 1, 2012.

Holding: Case dismissed based on statute of limitations due to plaintiff’s failure to properly serve defendants.

Facts: This case involved an automobile accident that resulted in injury to the plaintiff, Justin Maas. Two days prior to the end of the three-year statute of limitations, the plaintiff filed a summons and complaint against the defendants related to his back injuries. However, the plaintiff failed to serve any of the defendants with the summons and complaint. The plaintiff then filed an amended summons and complaint after the three-year statute of limitations, containing the same defendants and cause of action as the original complaint, and served it on the defendants.

The defendants filed a motion to dismiss alleging that the plaintiff failed to serve any of the defendants and that the plaintiff’s complaint was therefore barred by the statute of limitations.

The trial court held that the defendants waived their statute of limitations defense.

Court of Appeals Decision: The Court of Appeals reversed the trial court.

The statutes are clear. An action to recover damages for personal injuries “shall be commenced within 3 years or be barred.” Wis. Stat. § 893.54. An action is “commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing.” Wis. Stat. § 801.02(1).

The court noted that the facts are undisputed that the plaintiff failed to serve any of the defendants within 90 days of filing. Therefore, the action was never commenced prior to the running of the limitation period and therefore is barred.

The court further held that the amended complaint could not relate back to the original complaint, which was nullified when the plaintiff failed to serve any of the defendants within 90 days of filing the complaint.


Adams v. Westmark Development, LLC, 2011AP1293, August 1, 2012.

Holding: Builder not liable for work performed by an independent contractor.

Facts: Homeowners filed a lawsuit against the builder and original seller of their home, Westmark Development, for negligence due to an allegedly defective roof. The trial court held that the homeowners had no claim against the builder because the roofing work was done by an independent contractor. The case was appealed to the Court of Appeals.

Court of Appeals Decision: The Court of Appeals affirmed the lower court and held that the builder does not have liability for work performed by an independent contractor.

The court cited the general rule that one who contracts with an independent contractor is not liable to others for the torts of an independent contractor. The court further noted the three exceptions to this rule: 1) when a general contractor has a contractual duty of care to the homeowner, 2) when a non-delegable duty is statutorily imposed on an owner, and 3) when the subcontracted work is inherently dangerous.

The court determined that none of the exceptions applied, and therefore affirmed the trial court’s decision finding no liability on the part of the builder.


Court of Appeals, District III

Vasquez v. Injured Patients and Families Compensation Fund, 2011AP1795, July 26, 2012.

Holding: Court affirming jury verdict finding that hospital was not negligent in medical malpractice lawsuit.

Facts: The plaintiffs filed a lawsuit against Bellin Memorial Hospital for alleged negligence. Specifically, the plaintiffs alleged that the nurses who cared for the plaintiff during the delivery of her baby were negligent.

Prior to delivery, the mother’s doctor detected that the baby’s heart rate was low and irregular, and therefore ordered an immediate caesarian section. However, the doctor then decided to perform a vaginal delivery to expedite the delivery. During the delivery the mother’s uterus ruptured causing injury to the mother. The baby was also not breathing at birth and later suffered brain damage and cerebral palsy.

A jury found that the hospital was not negligent.

Court of Appeals Decision: The plaintiffs appealed alleging that they were entitled to a new trial for of the following reasons:

  • The trial court allowed the hospital to present evidence related to whether the mother gave her consent to allow for vaginal delivery.
  • The trial court refused to give a jury instruction requested by the Vasquezes regarding the use of evidence on the mother’s consent.
  • The trial court allowed the hospital to cross-examine Vasquezes’ expert about criticisms she had of certain nursing personnel when the actions she criticized were not alleged to have caused the baby’s injuries.
  • The trial court allowed the hospitals’ expert to testify when, according the Vasquezes, his causation testimony was irrelevant and he offered previously undisclosed testimony regarding the nursing standard of care.
  • The trial court allowed one of the Vasquezes’ experts to be cross-examined with post-occurrence literature.
  • There was insufficient evidence to support the verdict.

The Court of Appeals addressed each claim the plaintiffs made on appeal and determined that the plaintiffs were not entitled to a new trial, therefore affirming the lower court’s decision in favor of the hospital.


Riese v. Bertch Cabinet Mfg. and Floor to Ceiling, 2011AP 2601, July 31, 2012.

Holding: Hearsay is admissible in small claims cases as long as evidence has “reasonable probative value” and the court’s findings aren’t based “solely” on hearsay statement.

Facts: Plaintiffs (Jeanne Riese) brought a small claims action against cabinet maker (Bertch) for defective cabinetry. During the trial, Riese introduced an affidavit of Jerry Tuttle, who had 26 years of experience in cabinetry. In the affidavit, Tuttle stated that he hadn’t seen finishing come off cabinetry like that in 10 years and that it did not “represent normal wear and tear of quality cabinetry.”

The trial court refused to admit the affidavit because it was hearsay. The plaintiff appealed.

Court of Appeals Decision: The Court of Appeals reversed the lower court. The court explained that under the procedures for small claims (Wis. Stat. § 799.209(2)), the rules of evidence apply only to privileges and admissibility of certain test results. All other evidence is admissible if it has “reasonable probative value.”

According to the Court of Appeals, the affidavit did have reasonable probative value and therefore was admissible. The court further explained that even though hearsay documents may be admissible, Wis. Stat. § 799.209(2) forbids a court’s factual findings to be based “solely” on an oral hearsay statement.

Thus, the Court of Appeals reversed the trial court because excluded the written hearsay statements into evidence and failed to consider the statements when making its factual determinations.


Court of Appeals, Dist. IV

Emmrich v. American Family Ins. Co., 2010AP2916, July 26, 2012.

Holding: Finding that trial court did not erroneously exercise its discretion by excluding testimony of three insurance adjustors, and that trial court properly gave jury instruction on the emergency defense doctrine.

Facts: The plaintiff was injured after she was rear-ended by the defendant in an automobile accident. On the day of the accident, one of American Family’s adjustors spoke with the defendant who said that he was unable to stop due to icy road conditions and therefore slid into the plaintiff. The American Family adjustor noted in her file that she was accepting 100 percent liability on the insured “to control the injury claim of [the plaintiff].” American Family paid 100 percent of the property damage for plaintiff’s vehicle.

The plaintiff later filed suit against the insured-driver for negligence. During trial, American Family filed a motion in limine to exclude all evidence from its claims file and testimony from its employees regarding the contents of the claims file. The trial court granted the motion, except for the insured-driver’s statement that he began braking 15 feet from the stop sign.

The plaintiff also filed a motion in limine seeking to dismiss the defendant’s emergency doctrine defense and to exclude all evidence American Family intended to introduce in support of the defense. The trial court denied the plaintiff’s motion.

The case went to trial and the jury found that neither the defendant nor the plaintiff were negligent in causing the accident. The case was appealed by the plaintiff.

Court of Appeals Decision: The Court of Appeals affirmed the trial court’s decision.

First, the Court of Appeals held that the trial court properly exercised its discretion in excluding testimony on the ground that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the defendant-driver and to American Family under Wis. Stat. § 904.03.

Second, the Court of Appeals affirmed the circuit court’s decision to give the jury the instruction (WIS JI—Civil 1105A) on the emergency defense doctrine. (The emergency doctrine excuses an individual for negligence if certain criteria are met. Based on the record, the Court of Appeals concluded that there were sufficient facts that warranted the trial court to give the emergency defense instruction to the jury, and therefore affirmed the lower court’s decision.)

A version of this post origionally appeared on the Wisconsin Civil Justice Council Blog.