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Filed Under: Appellate Law Municipal Law

Wisconsin Court of Appeals Rejects Village’s Attempt to Condemn Property for Sidewalk

By: Rick A. Manthe Derek Punches Isaac S. Brodkey

To exercise the power of eminent domain, Wisconsin municipalities must comply with Chapter 32 of the Wisconsin Statutes. However, the power of eminent domain cannot be used to acquire property to create a “pedestrian way.” In a recently decided case, Sojenhomer LLC v. Village of Egg Harbor (2021AP1589 March 14, 2023) (publication recommended), the Wisconsin Court […]

Mar 17, 2023 in Blogs
Filed Under: Appellate Law Litigation

Wisconsin Supreme Court: Restatement’s Risk-Utility Test Does Not Replace the Consumer-Contemplation Test as the Standard for Determining “Unreasonably Dangerous” Products

By: John P. Shanahan Douglas M. Poland Clementine Uwabera

Interpreting for the first time the product liability statute adopted in 2011, the Wisconsin Supreme Court refuses to adopt Restatement (Third) of Torts Section 2(b) and holds that the consumer-contemplation test remains the standard for determining whether a product is “unreasonably dangerous” in a strict liability claim. Last month, in Murphy v. Columbus McKinnon Corp., 2022 […]

Jan 31, 2023 in Blogs
Filed Under: Appellate Law Litigation

Wisconsin Supreme Court: Restatement’s Risk-Utility Test Does Not Replace the Consumer-Contemplation Test as the Standard for Determining “Unreasonably Dangerous” Products (Extended Post)

By: John P. Shanahan Douglas M. Poland Clementine Uwabera

Interpreting for the first time the product liability statute adopted in 2011, the Wisconsin Supreme Court refuses to adopt Restatement (Third) of Torts Section 2(b) and holds that the consumer-contemplation test remains the standard for determining whether a product is “unreasonably dangerous” in a strict liability claim. Last month, in Murphy v. Columbus McKinnon Corp., 2022 […]

Jan 31, 2023 in Blogs
Filed Under: Appellate Law Insurance Law Litigation

Wisconsin Supreme Court Issues Significant Opinion: Insurers Cannot Use Preclusion Principles to Sidestep Duty to Defend

By: Jeffrey A. Mandell Clementine Uwabera Douglas M. Poland David P. Hollander

Wisconsin Supreme Court issues significant insurance coverage opinion, finding that insurers cannot use preclusion principles to sidestep duty to defend. On January 26, 2022, the Wisconsin Supreme Court weighed in on one potential exception to the “complaint test” as a method of determining whether an insurance company has a duty to defend a lawsuit brought […]

Jan 30, 2023 in Blogs
Filed Under: Appellate Law Litigation

A Skeptical View of Daubert Motions in Two Recent Wisconsin Court of Appeals Decisions

By Stafford Rosenbaum

Litigants routinely rely upon expert witnesses to provide opinion testimony at trial based on their specialized knowledge, training or experience. Also common, the opponent sees serious methodological flaws and thus reaches for a well-known weapon: a Daubert motion asking the trial court to exclude from evidence the report and any associated testimony. Originating in Daubert […]

Nov 09, 2022 in Blogs
Filed Under: Appellate Law Litigation

Non-Delegation in Wisconsin after Becker v. Dane County: The Dissenters

By Stafford Rosenbaum

A prior post discussed how, in Becker, et al. v. Dane County, et al., Nos. 2021AP1343 & 2021AP1382, the Wisconsin Supreme Court recently turned back an effort to revive the non-delegation doctrine, a tool that—at least in its sharper versions—could be used to pare back much of the modern administrative state. This post picks up […]

Oct 25, 2022 in Blogs
Filed Under: Appellate Law Litigation

Non-Delegation in Wisconsin after Becker v. Dane County

By Stafford Rosenbaum

At the end of its 2021-22 term, the Supreme Court released its long-awaited decision in Becker, et al. v. Dane County, et al., Nos. 2021AP1343 & 2021AP1382. The case affirmed the validity of orders issued by the joint public health department of Dane County and the City of Madison to control COVID-19 by, among other […]

Oct 17, 2022 in Blogs
Filed Under: Appellate Law Business Law Insurance Law Litigation

Wisconsin Joins the Majority: Profit Losses Due to COVID-19 Not Insured

By: David P. Hollander

Nationwide, restaurants and bars felt financial strain over the past two years. With measures in place to prevent the spread of COVID-19, many food and beverage businesses were subject to restrictions on the use of their in-person dining rooms. In a recent case, the Wisconsin Supreme Court found that COVID-19 related business interruption losses were […]

Jul 01, 2022 in Blogs
Filed Under: Appellate Law Litigation

Seventh Circuit Rejects Students’ Claim that University’s Refusal to Refund Fees During COVID Closures Amounts to Constitutional Violation

By: David P. Hollander

Public bodies deal with many of the same legal issues as private enterprises—plus a host of unique risks that arise because they are public actors. Public bodies therefore must take care to ensure that they are not violating the protected constitutional rights of their citizens, employees, contractors, or (in the case of schools) students. A […]

Jun 02, 2022 in Blogs
Filed Under: Appellate Law Municipal Law

Court of Appeals Determines City Development Condition Is Unconstitutional Taking

By: Isaac S. Brodkey Rick A. Manthe Larry Konopacki

This month, the Court of Appeals affirmed a circuit court decision that held that the City of Brookfield engaged in an unconstitutional taking when it conditioned the approval of a subdivision development on construction of a new public street. The Court of Appeals determined that this “exaction” was not permissible because it did not address […]

May 02, 2022 in Blogs
Filed Under: Appellate Law Insurance Law

Wisconsin Court of Appeals Rules that Reckless Homicide Cannot Constitute an Accident for Purpose of Insurance Coverage

By: Clementine Uwabera Jeffrey A. Mandell

Recently, the Wisconsin Court of Appeals ruled in a case that tests the interaction between criminal law and civil liability. In Dostal v. Strands, 2020AP1943 (Oct. 19, 2021), the court held that an insured’s criminal conviction for second-degree reckless homicide precluded a mother’s claim against the insurer for damages arising from the death of her child. […]

Nov 17, 2021 in Blogs
Filed Under: Appellate Law

Wisconsin Court of Appeals Rejects Attempted Underinsured Motorist Double Dip

By: Bruce Huibregtse Jeffrey A. Mandell Isaac S. Brodkey

At the close of summer, the Wisconsin Court of Appeals rejected an insurance company’s attempt to “double dip” and reduce its underinsured motorist (“UIM”) coverage responsibility to an insured based on a liability payment made to another insured.[1] The case arose from an automobile accident that caused the death of Michael Shimeta and serious injuries […]

Sep 22, 2021 in Blogs
Filed Under: Appellate Law Municipal Law

Denial of Variance Request Regarding Lakefront Yard Setback Requirements

By: Olivia M. Dunn Christopher Hughes

Cox v. City of Madison Zoning Board of Appeals, Appeal No. 2020AP478 (July 8, 2021) Kathleen Cox purchased property on Lake Mendota with the plan to demolish and rebuild the existing house and wet boathouse. A wet boathouse is one that is built over excavated shoreline with the lake water underneath, into which a boat […]

Sep 01, 2021 in Blogs
Filed Under: Appellate Law Election & Political Law

Supreme Court of Wisconsin Denies Legislative Redistricting Rulemaking Petition

By: Douglas M. Poland Jeffrey A. Mandell Rick A. Manthe

The Supreme Court of Wisconsin recently denied a petition submitted by former Assembly Speaker Scott Jensen, represented by the Wisconsin Institute for Law and Liberty (“WILL”), proposing new procedural rules limited solely to legal challenges to new legislative districts, including requiring such challenges to be brought solely to the Wisconsin Supreme Court. Stafford Rosenbaum Attorneys […]

May 24, 2021 in Blogs
Filed Under: Appellate Law

Court of Appeals Holds that Prejudgment Interest Can Be Triggered without a Demand

By: Jeffrey A. Mandell Bruce Huibregtse

Recently, the Wisconsin Court of Appeals touched on two important insurance issues: covered autos under Wis. Stat. § 632.32(3) and prejudgment interest under Wis. Stat. § 628.46(1). In January 2016, Jason and Wendy Foerster’s thirteen-year-old son was directed by his uncle to drive a Chevrolet Tahoe to the child’s grandparents’ house to retrieve a piece […]

May 07, 2021 in Blogs
Filed Under: Appellate Law Municipal Law

Court of Appeals Accepts Petition for Interlocutory Appeal on Discretionary Immunity, Reverses in Favor of Stafford Rosenbaum’s Client to Dismiss Case

By: Ted Waskowski Kyle Engelke

At the end of last week, the Court of Appeals recommended for publication an opinion resulting from a permissive interlocutory appeal sought by Stafford Rosenbaum on behalf of the City of Monroe.  Stafford sought the appeal after the trial court denied the City’s motion for summary judgment asserting absolute and governmental immunity in response to […]

Dec 08, 2020 in Blogs
Filed Under: Appellate Law Municipal Law

Court of Appeals Holds that a Continuing Trespass Does Not Circumvent the Notice of Injury Requirements

By: Pahoua Thao Kyle Engelke

The Wisconsin Court of Appeals recently found that a continuing trespass does not create a new “event” each day that it remains on the property.  See Ebert v. Village of Gresham, 2020 WL 6278316, ¶¶ 2, 13.  Because a new event is not created each day, a claimant must file a notice of injury within […]

Nov 18, 2020 in Blogs
Filed Under: Appellate Law Municipal Law

Court of Appeals Confirms that an Unimproved Platted Public Road May Not Be Adversely Possessed

By: Olivia M. Dunn Matthew Dregne

A property owner, Timothy Casa De Calvo, sued the Town of Hudson claiming that he adversely possessed real property adjacent to his house. The property in question had been dedicated about 31 years before as a street on a subdivision plat. The circuit court granted summary judgment in favor of the Town, and the court […]

Sep 22, 2020 in Blogs
Filed Under: Appellate Law Municipal Law

Wisconsin Court of Appeals Allows Inclusion of Parking Lot Income in Milwaukee Property Tax Assessment

By: Kyle Engelke Ted Waskowski

In Milwaukee Block 10 Properties v. City of Milwaukee, the Wisconsin Court of Appeals reaffirmed two key principles in its reversal of a circuit court decision which ordered the City of Milwaukee to revise its property tax assessment for the Aloft Hotel. First, Wisconsin affords substantial deference to property tax assessments prepared by municipalities. Property […]

Jul 09, 2020 in Blogs
Filed Under: Appellate Law Litigation

Wisconsin Court of Appeals Strikes Down Insurer’s Limitation on Underinsured Motorist Coverage

By: Jeffrey A. Mandell Bruce Huibregtse

The Wisconsin Court of Appeals recently held that Wisconsin law precludes enforcement of a provision in an insurance policy that purported to limit underinsured motorist (“UIM”) coverage to only those insureds who sustain bodily injury or death. Ryan Johnson died from injuries sustained in a collision involving an underinsured vehicle. Johnson’s minor son, Elliot Brey, […]

Jul 07, 2020 in Blogs
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