My Garage Is Bigger Than Yours

My Garage Is Bigger Than Yours

As of late, Wisconsin courts have been grappling with one of the most important questions facing the nation: What is a garage? Is it defined by size or exterior proportions? Do the construction materials define what it means to be a garage? Attached or detached? Is it defined by the contents it holds within? Or should it be defined by the conduct of those who frequent the garage?

For those among us who have long grappled with these fundamental issues, rest easy as the Wisconsin Court of Appeals in Buehrens v. Schave provides clarity. Like all good lawsuits, it started between feuding neighbors. The Schaves built a “building” with “an electric garage door” that is “thirty-six feet by eighty feet, reaching sixteen feet high.” To put this in context, the Schaves’ building was the dimensional equivalent of a great blue whale. Angry neighbors decried that it was a “pole barn” that violated restrictive covenants “as its size rendered it something other than a garage.” Without casting judgment, it is fair to say that there is no community barn-raising taking place in this subdivision.

In filing their lawsuit, the neighbors asked the court to order the building removed. The Schaves would have none of it and declared that the building fell squarely within the definition of a “garage.” Which, of course, was allowed by the subdivision’s covenants. To determine the fate of the building, the court turned to Webster’s Dictionary. There, the court found that “a reputable dictionary defines ‘garage’ as ‘a building or compartment of a building used for housing an automotive vehicle’.” With this definition, the court waved its wand and crowned the “building” a “garage” because the Schaves could show it was used for storing automobiles. As a result, the Schaves get to keep their garage.

However, the case reveals the problem with clear-line definitions. For instance, if the Schaves decided not to store automobiles would it revert to a pole barn and lose its status as a garage? Also, as most of us know, many garages have never been kissed by the warm rubber of a car’s tire, but instead have been disgraced by boxes of endless clutter. Does this make such a structure any less of a garage? Wouldn’t it be as good, if not better, to define a garage based on the activities that take place within such as band practice and startup companies? Otherwise, what fate befalls punk rock bands like Nirvana and industrious businesses following in the footsteps of Apple? To me, defining a garage by one item that may be found inside is like defining a human by the presence of an appendix or tonsils.

 

The COVID Trials

The COVID Trials

The constitutional right to a jury trial does not take a back seat to coronavirus (COVID-19.) Yet, COVID-19 has impacted the ability of courts to supply juries for trial. The Seventh Amendment codifies the right to a jury trial not only for criminal trials, but in civil cases as well. This article explores how courts are grappling with the challenge of seating a jury and trying cases.  Litigants know too well the meaning of the legal maxim, “justice delayed is justice denied.” Nevertheless, a jury that is distracted and afraid for their physical well-being because of COVID-19 cannot deliver justice. Herein lies the conflict facing our courts – the right to a jury of one’s peers and juror’s right to safety.

One of the first federal judges to resume jury trials during the COVID-19 pandemic likened the experience to “building an airplane while you’re flying it.” A playbook for resuming jury trials is emerging from these pioneering judges who have conducted jury trials in the wake of COVID-19.

First, the layout and the physical arrangement of jurors, in particular the confinement of the jury box, must be addressed. One solution has been to spread jurors out in the gallery — to allow for social distancing. Going further, other courtrooms have added physical barriers and guards. In addition to plexiglass barriers, some courts have installed audio systems with headsets that enable clients and lawyers to whisper to each other, much as they would in a traditional courtroom, but from a safe distance. One such recommendation is to proceed with smaller juries.  For instance, Wisconsin law allows for a jury of six persons in civil cases.

The next set of the recommendations focus on safety practices, which include requiring facial coverings be worn by all individuals in the courtroom (judges and staff included), having prospective jurors’ temperatures taken as they enter the court building, providing hand sanitizer, disinfectant wipes, disinfectant spray and paper towels. Another practical policy is to avoid passing exhibits between jurors.

Courts also have wrestled with the question of who must wear masks in the courtroom. Most courts seem to be on the side of masks for all persons in the courtroom. This is problematic because of the difficulty of assessing credibility of someone in a mask, a core function of the jury. Where possible, courts have permitted witnesses to be examined without masks, via video from within a room in the courthouse.

The challenges of in-person jury trials have led some courts to experiment with more novel ideas. Could a jury trial be conducted by Zoom? It appears so. Remote civil jury trial pilot programs in Florida and Texas are already in place. A jury trial that occurred in Florida commenced entirely via Zoom; some potential jurors had to be dismissed for technical issues during jury selection. As expected, audio and video feeds occasionally froze. The judge was often asking each individual juror: “Can you see me? Can you hear me?” Despite technical issues, the Florida Zoom trial was successful.

There is no single antidote for resuming jury trials in the wake of this pandemic. In the words of Hibbing, Minnesota’s most famous resident, “the times they are a-changin’.” More than ever, courts and communities must work together to safely preserve the right to a jury trial and concomitant duty to serve as a juror.

 

Beware of Dog Owner Liability and Coverage

Beware of Dog Owner Liability and Coverage

“As wonderful as dogs can be, they are famous for missing the point.” – Jean Ferris. Sometimes when dogs miss the point; things can go horribly wrong. Statistically, there are four to five million Americans bitten by dogs every year.  There is precedent for animals standing trial for criminal charges, with the earliest record of an animal trial is the execution of a pig in 1266 at Fontenay-aux-Roses.  However, in recent history, putting the animal on trial for its vicious acts has gone out of vogue. Without the possibility of a kangaroo court – pun intended – it is the owners who face the consequences when a good dog “breaks bad.”  Specifically, Wisconsin has two categories of laws regarding the liability for harm caused by dogs.

The first applies when the dog has no history of causing harm.  In this case, the owner will only be liable for the actual amount of damage caused by the dog.  Included in the amount an owner may owe to the victim are hospital bills, lost wages and money to compensate the victim for pain and suffering.  It is worth noting that under the law, “owner” includes anyone who keeps or harbors a dog. This means that if you are caring for a dog long-term at your residence, you may be liable for damage caused by the dog if you are found to be “harboring or keeping” the dog.

The second category of liability creates enhanced penalties for an owner of a dog who has notice of the dog’s past bad behavior.  To quote the statute, “the owner of a dog is liable for twice the full amount of damages caused by the dog biting a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement if the owner was notified or knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.”  Luckily, normal puppy bites and teething behavior do not rise to this level. Gasper v. Parbs, 2001 WI App 259, 249 Wis. 2d 106, 637 N.W.2d 399.

In light of the threat that a dog owner may be on the hook for the damage caused by a dog that attacks, what can be done? Aside from obedience training, the most important thing to do is to check your homeowner’s insurance policy.  Many policies have language excluding certain dog breeds from liability coverage. A list of commonly excluded breeds may include any of following: Pit Bull, American Pit Bull, Rottweiler, Chow Chow, Doberman Pinscher, American Staffordshire Terrier, American Bulldog, Colorado Bulldog, Northwood’s Bulldog, English Bull Terrier, Wolf Hybrids, or a mixed breed with any of the aforementioned breeds.  Although this list seems somewhat arbitrary, it is worth checking your policy to determine if you will be covered in the event that your dog bites someone.

 

Disclosing Defects with the Real Estate Condition Report (RECR)

Disclosing Defects with the Real Estate Condition Report (RECR)

Wisconsin law has left the dark ages of caveat emptor or also known as “let the buyer beware” in the sale of residential property. The harshness of caveat emptor has been replaced by the Real Estate Condition Report or “RECR.” Basically, the RECR requires sellers to disclose their awareness of defects. What should be a simple concept is made complex by legalistic definitions. For instance, a “defect” is defined as a “condition that would have a significant adverse effect on the value of the property; that significantly impairs the health or safety of future occupants of the property; or that if not repaired, removed or replaced would significantly shorten or adversely affect the expected normal life of the premises.” It is not hard to imagine a silver-tongued lawyer arguing that just about anything is a defect under this definition. Consider the following quote:

“Houses are amazingly complex repositories. What I found, to my great surprise, is that whatever happens in the world – whatever is discovered or created or bitterly fought over – eventually ends up, in one way or another, in your house. Wars, famines, the Industrial Revolution, the Enlightenment – they are all there in your sofas and chests of drawers, tucked into the folds of your curtains, in the downy softness of your pillows, in the paint on your walls and the water in your pipes.” ― Bill Bryson, At Home: A Short History of Private Life

If Bill Bryson is right in saying that the history of the world is found within the four corners of a home, is it futile to expect a seller of a residential home to disclose defects? Not quite. In reality, the RECR is a straightforward document requiring a homeowner to check “yes, no, or N/A” to knowledge of defects concerning elements of the house, such as the roofing. 

Blindly checking “no” to all knowledge of defects is foolhardy and may violate Wisconsin law. Notably, there is also a requirement that sellers amend their RECR if defects are discoverable after completion of the RECR but before an offer is accepted. These representations are legally binding and a buyer is entitled to rely on the RECR. Often, the RECR forms the basis for a lawsuit. Any doubt about a defect should be resolved in favor of disclosure.

 

In Spite of the Law

In Spite of the Law

The law, to borrow a quote from Winston Churchill, “is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key.” That “key” is often found in the Wisconsin Statutes which is affectionally referred to as the book of surprises.  Hence, when faced with the proverbial question of whether “fences make good neighbors” it made sense to scour the Wisconsin Statutes for an answer. Behold!  Such a timely question has an answer and it is: not necessarily. Wisconsin law prohibits the construction of spite fences. In the words of the legislature:

“Any fence, hedge or other structure in the nature of a fence unnecessarily exceeding 6 feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance. However, nothing herein contained shall limit the right of a municipality to forbid the erection of a fence less than 6 feet in height.”

Spite fences were not always held in such low esteem in this great State. Circa 1900, from the quaint village of Glenbeulah, Wisconsin comes the case of Metzger v. Hochrein. The Court described Metzger’s property as “surrounded by made lawns and yards, making an attractive and valuable home.” Standing accused of erecting a spite fence, Hochrein set “rough” tamarack posts, from eight to sixteen feet high along the border between the properties. Making things worse, the Court described that between these posts was a “tight board fence of rough, old, unsightly, and partly decayed lumber from an old ice house.” Ignoring the adage to love thy neighbor, the Wisconsin Supreme Court dismissed the case. In language that seems whimsical today, the Court endorsed the right to annoy one’s neighbor:

“This is one of the many cases that may arise where the doctrine of personal liberty and personal dominion of one over his own property enables him to do things to the annoyance of others, not causing actual, material physical discomfort to them, for which there is no punishment, except loss of that respect which every right-thinking man desires from his neighbors, and the possession of which is a source of daily enjoyment. If one is so constituted as not to be susceptible to those feelings which a reasonably well-balanced man is supposed to possess, and is so constituted as to obtain more pleasure out of needlessly annoying others than by securing and retaining their respect as a manly member of society, his sovereign right in his own property, to use it as he may so far as that use does not physically extend outside his boundaries to the detriment of others, may be so exercised as to violate the moral obligations which every member of society owes to his neighbors, without any penalty being visited upon him for his misconduct, of which he can be made conscious.”

However, the unbridled ability to irritate neighbors did not last long. In 1903, an early version of the spite fence statute was passed in reaction to the Supreme Court’s decision in Metzger v. Hochrein. Now, some modern examples help us understand the mash-up of words contained in the spite fence statute. For an example from Utah, would a “Redneck Stonehenge” consisting of three old cars upright in the ground, erected after a neighborly dispute constitute a spite fence? The answer in a word – yes!  Closer to home, a Wisconsin appeals court in the case of Apple Hills Farms v. Price found that an “exposed thirty-two feet long, twelve feet high bare concrete wall” near a property was a spite fence. The facts of the Apple Hills Farms’ case provide a textbook definition of spite. Price, the erector of the wall, told the contractor building the wall that he wanted the wall “ugly” to devalue his neighbor’s property. Surely, it did not help his case that he sprayed grass killer on his neighbor’s lawn to spell “A-hole.” Price’s spite bit him back in the end when the court ordered that he pay his neighbor $150,000.

Upon reflection, the law may not be able to answer the question of whether fences make good neighbors, but it shows that at times, fences certainly make spiteful neighbors. To close, Robert Frost’s poem “Mending Wall” fittingly contains the following contemplative prose: “Before I built a wall I’d ask to know what I was walling in or walling out, and to whom I was like to give offense.”

 

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