Lawton & Cates Blog

Wisconsin’s Texting Law Not Enough

Wisconsin passed a law that prohibits texting while driving. The law prohibits sending or composing text messages while driving, but not reading them. The law imposes as modest fine for a violation of the law. The fine may be as low as $20.00. One would think the legislature could do better than that for an activity that is more dangerous than driving drunk. Under the new law, a person can read all the text messages they want, and if they get caught texting, they get fined the cost of a movie and popcorn. The governor has indicated he is excited about the law and will sign it.

Protecting the Privacy of an Injured Person

The question my clients ask me most is “Why does the insurance company get to look at my medical records from 15 years ago?” The answers I gave were always unsatisfactory to me, and rested largely with the idea that discovery is wide open and the insurance companies get to dig around in the medical records to see if there is another explanation for the injury.

The insurance defense lawyers abuse this power. They will ask questions about childhood illnesses in a car accident case involving a broken bone. They will ask about miscarriages, STDs, and every other embarrassing medical condition they find. There is no legitimate purpose for these questions. The goal is to intimidate the injured person and scare them away from a trial.

There is a bill pending in the Wisconsin legislature designed to restore the balance between a person’s right to privacy and the insurance company’s right to defend itself. The law, if passed, would prevent the insurance companies from getting an injured person’s medical records that are unrelated to the claimed injury. The injured person would be required to provide treatment records from the date of the accident forward, but would not have to provide pre-injury records. The bill provides that if the insurance company can show clear and convincing evidence that the injury pre-existed the accident, they would be allowed to look at older records.

The bill also addresses some of the abuses in the defense medical examination rules. Currently, the insurance company’s doctors could ask anything of the injured person, including questions about liability. The insurance company would then have a doctor testifying about how an accident happened. The new law would prohibit that practice. The new law would also prohibit the insurance company from making an injured person drive more than 100 miles to attend a defense medical exam. Finally, the injured person would be allowed to record the examination to prevent the insurance company doctor from changing the facts.

The bill is currently in committee and facing significant opposition from the insurance industry. Please register your support for this important law.

A Practical Demonstration of the Dangers of Texting and Driving

I have written several times about the dangers of texting and driving. The studies clearly demonstrate that a person is more distracted when they text and drive. They have more difficulty staying in their lane of travel. They are more likely to rear-end a car slowing in traffic, and are less likely to see children entering the road.

Choosing a Lawyer After You’ve Been Hurt

If you have been injured, one of the most important decisions you will face is who to hire as a lawyer. Your future may depend on the decision you make, and certainly thousands of dollars are at stake. Spending some time researching and choosing an injury lawyer at the outset is time well spent.

Discretionary Duty and Municipal Liability

The time has come to re-examine the principles underlying the immunity afforded municipalities for the torts of their employees.  As a preliminary matter, we are not talking about huge verdicts or settlements against villages or cities.  The statutes provide a $50,000 cap, no matter how badly the person is injured.

The current law insulates a municipal official for those acts that are discretionary as opposed to ministerial.  The distinction between a discretionary act and a ministerial act has become blurred over the years.  However, the courts have changed the rule set forth by the legislature.  Originally, liability was the rule, and immunity the exception.  Unfortunately, the courts have completely changed the law, and left injured people with no recourse.

In a recent case, the court found the municipality immune from suit when a bus driver sexually assaulted eighteen students on the school bus.  The court ruled that the families of the children assaulted had no recourse in the courts of this state.  The reason, discretionary immunity.  The court held you cannot sue a municipality for failing to supervise its own employees because such an act requires discretion. 

The courts have noted that the doctrine leads to harsh results.  They have yet to provide a remedy though.  There are a number of options available. 

The simplest solution is to return the dictates of the municipal immunity statute, sec. 893.80 Stats.  The statute insulates judicial and legislative acts from liability.  It also precludes liability for quasi judicial and legislative acts.  The contours of the statute are open to debate, but such an interpretation would allow the students who were assaulted to proceed with a negligent hiring and supervision claim.  This interpretation of the statute would allow a claim for defective bridge design to proceed to a jury trial. 

Private Citizens and corporations are responsible for their torts, and there is no reason the same analysis should not be applied to municipalities.

Leveling the Playing Field in Injury Cases

If you have been hurt in an accident there are many things you are worried about. You are worried about your medical bills, your job, and how you are going to pay your household expenses while you are off work. The insurance companies know you are worried, and they know that the more pressure you are under the more likely you are to settle your case before you know the extent of your injuries. 

Malpractice Myths

 A lot of misinformation is being spread about malpractice and the need for tort reform to protect doctors. Some of the popular myths are that patients file frivolous claims, that the threat of malpractice is driving doctors away from the practice, and that malpractice claims drive up the cost of health care. In Wisconsin, there is a special law that protects doctors, providing special rules on damages and on who pays them. All medical negligence claims must be brought under chapter 655. As this article will show the popular myths have no validity, and doctors are well taken care of here.

Your Home and the Law: Part III

In this installment of your home and the law, I will explore several situations where a homeowner may be liable for damages caused to others.  This article will discuss liability for injuries caused by the family dog, and premises liability issues.  These are  common situations that arise for homeowners.

The law in Wisconsin imposes strict liability on the keeper of a dog if that dog injures someone.  The law defines keeper more broadly than just the owner.  For instance, if your mother-in-law is staying with you in your home, and her dog injures a child in the neighborhood, you and your mother-in-law may be liable for the injuries caused.  The law is not limited to injuries caused by bites.  Let’s say your high-energy golden retriever knocks a guest down the steps injuring him.  The dog bite statute imposes liability in that situation as well.

Most homeowner’s policies cover the situations discussed above.  There is a growing trend to exclude certain breeds from coverage.  These dogs are considered dangerous, and include Pit Bulls, Doberman Pincers, German Shepherds and Rottweilers.  This list is not exhaustive, and you may surprised to find that your dog is on the "dangerous dogs" list.  You should check with your agent to make sure your dog is covered under your homeowners policy.

There are many types of premises liability claims that arise each year.  Let’s say you have a deck party and it collapses injuring several of your guests, or you have an eaves trough that drips water onto the sidewalk by the front door, it freezes,  and the UPS man falls hurting himself.  In these cirmcumstances the injured person may have a claim against you and your homeowners policy.

These premises liability claims are not strict liability and the injured person would have to prove that the homeowner was negligent in maintaining or repairing their property.  The law also compares the fault of the injured person to the fault of the homeowner.  In the UPS example, the law explores the actions of the delivery person to see if he was in a hurry, or not paying attention.  It then compares the delivery man’s actions to the homeowner for failing to fix the eaves trough, or make sure the area was salted in cold weather.

If you have questions about homeowner’s liability contact dgahnz@lawtoncates.com.

Your Home and the Law: Part II

Buying a home is one of the most important economic decisions most people make.  For most of us, our home is our biggest asset and our largest expense.  Home ownership is part of the American dream, and it is a goal many of us strive to achieve.  What happens when the house of your dreams turns out to be a money pit with mold problems or structural defects? 

Wisconsin law provides some protection for the consumer who has been misled by the home seller.  The protection varies depending on who the seller is,  and recent decisions by the Wisconsin supreme court have threatened the protections available.  Wisconsin’s consumer statutes, sec. 100.18 provides twice your pecuniary damages plus your reasonable attorney’s fees if someone misrepresents the condition of a house.  For instance, the seller fills out a real estate condition report, and indicates that there are no problems with water in the basement.  The buyer purchases the home and finds out that the basement floods every time it rains.  The cost to fix the problem is $2,000.00.  If the buyer can prove the misrepresentation, they are entitled to $4,000.00 plus attorney’s fees. 

There are limits with the remedy, though. The statute excludes realtors from the attorney’s fee provision of the statute.  This exemption effectively guts the statute.  The risk of paying  attorney’s fees plus the damages is a significant incentive to make sure that all the information provided to the buyer is accurate. 

The Wisconsin supreme court has further limited a consumer’s remedies with respect to a home purchase.  Let’s take the leaky basement example and expand on it.  Let’s say that the seller knew about the leak problem, and took steps to cover it up.  Let’s say he painted the walls to hide the water marks, put in new carpet to get rid of the musty smell, and then flat out lied when asked by the potential buyer if there was ever water in the basement.  You would think that the consumer would have a claim for intentional misrepresentaion with the prospect of punitive damages.  Not so, according to the supreme court.  The consumer is limited to the remedies provided by the contract or by the consumer statute.  The court extended the economic loss doctrine to exclude claims for intentional misrepresentations. 

The lesson to be learned, be careful when buying your home.  You may want to consider a home inspection by an independent inspector.  If you have questions about a home purchase, contact kcarnell@lawtoncates.com or dgahnz@lawtoncates.com .

Your Home and the Law

There are a number of legal issues involved in home ownership.  Over the next several weeks I will explore a few of them and how they impact home builders, home buyers, and home owners.  I will explain the economic loss doctrine and how it affects anyone who builds a house.  I will discuss remedies for home buyers who were led astray by realtors or sellers.  Finally, I will survey liability issues for homeowners.

If you decide to build your home there are hundreds of decisions you need to make.  The decisions you make at the outset will affect you for years to come.  The lender you choose, the location of the house, and the builder.  The choice of a builder will turn on a number of factors.  Given recent Wisconsin laws, the contract offered by the builder should be a major consideration.

The contract between you and the builder will set out virtually all of your legal rights.  This is true as between you and the builder, and between you and the subcontractors.  Recent Wisconsin cases have clarified that a consumer is limited to the remedies in the general contract.

An example of why this is important happened in Linden v. Cascade Stone Co., Inc. 2005 WI 113.  In that case, the consumer had stucco put on their home.  They claimed it was put on improperly and caused water infiltration and mold.  The consumer tried to sue the subcontractor who put on the stucco, and the supreme court dismissed the case.  The court held that the consumer had remedies under the general contract, and the general contractor had remedies against the subcontractor. 

The lesson from Linden is to understand your rights under the general contract.  The builder will want to limit its exposure on the contract.  The consumer will want as much protection as possible.  Using the stucco example,  the builder would prefer the contract to require only that the substandard stucco be repaired or replaced which is standard warranty language.  The consumer would prefer that the cost of remediating the mold, the cost of the delay, and all other costs associated with the substandard stucco be paid by the general contractor. 

If you are planning on building a home, look over the contract.  Find out your rights before you sign on the dotted line.  If you have questions about the terms of the contract contact  kcarnell@lawtoncates.com or dgahnz@lawtoncates.com.