Governmental Immunity and the Known Danger Exception

Governmental Immunity and the Known Danger Exception

The governmental immunity statute grants immunity to governments and their officers from certain lawsuits related to intentional wrongful and discretionary acts. Governmental immunity laws trace their origins back to British common law and the idea that the King could do no wrong. Section 893.80 of the Wisconsin Statutes sets forth the general principles of governmental immunity in Wisconsin, including notice requirements, immunity for intentional and discretionary acts, and limits on damages. This article briefly describes governmental immunity and discusses a recent Wisconsin Supreme Court case that applies one of the exceptions to governmental immunity.

Wisconsin courts have described the purpose of the governmental immunity statute in the following terms: “the purpose of immunity provisions is to ensure that courts are not called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political, or economic decisions.”[1] More simply put, governmental immunity is embodied in the doctrine of separation of powers which divides government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.

There are four narrow exceptions to governmental immunity that have been established in Wisconsin case law. These exceptions allow units of government, or their officers or employees, to be held liable for an action or inaction undertaken in the scope of employment. The exceptions are intended to balance “the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress.”

One these exemptions is referred to as the “known danger” exception. It applies in situations in which dangerous circumstances give rise to a ministerial duty to act. Meaning there is no governmental immunity for negligently responding to known dangers that create absolute, certain, and imperative duties.

In January 2019, the Wisconsin Supreme Court reviewed a tragic case where a young girl drowned at a summer camp while under the supervision of the City of New Berlin. The young girl’s parents filed the lawsuit claiming that New Berlin’s camp staff were negligent because the girl did not receive a swim test and was allowed to enter the pool anyway. Specifically, the girl’s parents alerted camp staff to the fact that the girl could not swim, and the camp staff told them that all campers would be provided with a swim test and limited to appropriate areas of the aquatic area accordingly. The camp staff did not provide a swim test and allowed the girl to enter the pool rather than restricting the girl to the splash pad area. New Berlin argued that governmental immunity barred the lawsuit. The Wisconsin Supreme Court determined that New Berlin was not entitled to immunity because the “known danger” exception applied. Writing for the Court, Justice Shirley Abrahamson explained that “the danger to which [the young girl] was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident.”

Despite their best efforts to serve and protect the public, at times, some governmental entities have been proven to be negligent in their duties. If you believe you have a claim against a governmental entity, you must act quickly. Wisconsin requires that the governmental entity being sued be provided with notice of the claim or injury within 120 days after the happening of the event giving rise to the claim.[2] The purpose of this notice is to afford governmental authorities an opportunity to investigate a claim promptly.[3] If you are considering making a claim against a governmental entity or one of its officers, you should contact an attorney right away.

[1] Kara B. v. Dane Cnty., 198 Wis. 2d 24, 55 , 542 N.W.2d 777 (Ct. App. 1995) , aff’d, 205 Wis. 2d 140 , 555 N.W.2d 630 (1996) (quoting Gordon v. Milwaukee Cnty., 125 Wis. 2d 62, 66 , 370 N.W.2d 803 (Ct. App. 1985)

[2] Wis. Stat. § 893.80(1d)(a).

[3] Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 327 N.W.2d 206 (Ct. App. 1982).

 

Mueller v. TL90108, LLC a Tale on the Statutes of Limitations

Mueller v. TL90108, LLC a Tale on the Statutes of Limitations

Regardless of the facts, there are certain types of legal cases that restrict the amount of time in which legal action may be taken based on statutes of limitations. Statutes of limitations are laws that set the maximum time after an event within which legal proceedings may be initiated. When that period of time passes, the statute of limitations can be used as a defense to defeat the claim. Such was the case in the recent Wisconsin Supreme Court decision in Mueller v. TL90108, LLC.

Like a Bond film, this captivating story of international intrigue has a rare and exotic automobile at the center of its storyline. Specifically, a French handmade 1938 Talbot-Lago T150C with distinguished coachwork.

In 2001 the car (and title to it) were reported stolen. Under the cover of darkness, the thieves had disassembled the Talbot-Lago from a garage in Milwaukee, Wisconsin and smuggled it to Europe.* In 2015 a company purchased the Talbot-Lago for nearly $7 million. This company is listed as TL90108, LLC in court documents. TL90108 is owned by Illinois dental company founder Rick Workman. When the original owners of the Talbot-Lago found out that it had been purchased by TL90108, LLC in 2017, they sued for return of their property when Workman refused to do so.

Despite having a sordid history, the Supreme Court did not actually take into consideration the car’s history. Instead, their decision was based on the statute of limitations. Here, the statute of limitations for the wrongful conversion or detention of the Talbot-Lago was 6 years. The question the Court had to decide is when the 6-year period began. If it began in 2001 when the car was stolen, then Plaintiff’s claim would be dismissed as stale. However, if the 6-year period began when Workman refused to give back the car in 2017, then the claim was still timely. Because the statute in question very clearly states the 6-year period begins with the theft OR when the wrongful detention began, the Wisconsin Supreme Court allowed Plaintiff’s claim to move forward. The ultimate question of who owns the Talbot-Lago remains unresolved.

*The thieves remain at-large and were not part of the Mueller v. TL90108, LLC lawsuit.

 

Imperfect Title: A Survey Exception Primer

There is little risk in presuming that the majority of homeowners rate their property as their most important asset. Paradoxically, homeowners likely know more about their car insurance than the insurance purchased for the purpose of protecting legal title to their property. Just like no one would want to purchase a car subject to someone else’s car loan, neither do people want to purchase property subject to the former owner’s mortgage or other liens. A homeowner may avoid such problems by obtaining a title insurance policy.

Familiarity with title insurance is usually nothing more than a nuisance charge on a closing statement. Yet, the essential function of a title insurance policy is to provide coverage ensuring the homeowner has good title to the property. If a covered title defect is found, the policy pays the homeowner for actual loss under the terms of the policy, and no more.

As with any insurance policy, it is paramount to understand what is covered. Basically, title insurance is a two-step transaction: the title commitment and title policy. The commitment consists of three parts: Schedule A, Schedule B, and the Conditions.1 Schedule A lists the name(s) of insured(s), the amount of coverage, a description of the insured property, and the effective date. Schedule B-I provides preliminary requirements to a policy being issued. Schedule B-II lists exceptions to coverage. The commitment also has Conditions found on the commitment cover. Following closing, the policy is issued based upon the commitment if the requirements have been met.

A typical title insurance policy contains certain exceptions concerning title risks that cannot be discovered or evaluated relying solely on public real estate records. The survey exception removes coverage for boundary line disputes. The purpose of the survey exception is to make it clear that the policy does not protect against matters outside a review of real estate records. In other words, matters that would be discovered by a surveyor are not covered by a title insurance policy unless a survey is obtained prior to closing.2 Typical language for this exclusion, found on Schedule B of the policy, states:

This policy does not insure against loss or damage (and the Company will not pay costs, attorneys’ fees or expenses) which arise by reason of: Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey or inspection of the premises.

Essentially, the title company puts the risk of not surveying the property on the insured. The property owner can limit this risk by either obtaining a survey or arranging for the removal of the survey exception.

Removing the survey exception – which can be accomplished by performing a survey per the policy conditions or paying an additional premium – exponentially expands the protection provided by a title insurance policy. For example, when the survey exception is removed, coverage is expanded to include3:

1.  A survey’s failure to show an encroachment of a policyholder’s fence on a neighbor’s property.

2.  The incorrect placement of lot line which causes a policyholder’s cellar door to open on a neighbor’s property.

3.  The incorrect placement of a power line easement 50 feet from the house as opposed to the true of measurement of 5 feet from the house.

4.  An incorrect statement of the amount of acreage.

5.  The encroachment of an insurance holder’s barn onto the neighbor’s property.

Whether you are working with a realtor or purchasing a for sale by owner property, it is important to understand your title insurance policy and the exceptions to coverage. Review your title insurance terms and exceptions to ensure your property is protected. If you have questions about your title insurance policy and what it covers, make sure you call your attorney.

1.  This form is available at the ALTA website: http://www.alta.org/forms/ (last visited June 5, 2017).

2.  Joyce Palomar, Title Insurance Law, § 7.02.

3.  Title and Escrow Claims Guide, 2nd Ed., § 12.3.16 (2013).

 

Apple Obtains Verdict of $1,051,855,000 against Samsung

On April 15, 2011, Apple Inc., maker of the iPhone, iPod, and iPad devices, sued Samsung, maker of a variety of smartphones, in United States District Court for the North District of California. Apple’s primary claims were that a number of Samsung’s products infringed on Apple’s patents and trademarks. As a quick primer on patent and trademarks: (1) A patent is the “exclusive right to make, use, or sell an invention for a specified period (usu. 20 years), granted by the federal government to the inventor if the device or process is novel, useful, and nonobvious.” 35 U.S.C. §§ 101-103; (2) A trademark is “a word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others.” Black’s Law Dictionary (7th ed.). To receive federal trademark protection, a trademark must be: (1) distinctive rather than merely descriptive, (2) affixed to a product that is actually sold in the marketplace, and (3) registered with the U. S. Patent and Trademark Office.
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Protect Your IP Address or Find Yourself in the Hurt Locker

If you, your children, or anyone using your IP address downloads copyrighted content online, you may find yourself in the dragnet of civil litigation. Copyright holders of movies such as Hurt Locker and Expendables have taken the shotgun approach to litigation, suing BitTorrent (described more fully below) users who downloaded their films. For example, in the Hurt Locker litigation, nearly 50,000 people who downloaded the movie using BitTorrent’s peer-to-peer (“P2P”) downloading software have been sued. On one side, the copyright holders are accused of being copyright trolls, a derogatory term used to describe aggressive litigation to enforce its copyrights. In their defense, the copyright holders argue that their property has been stolen and they are using legal channels that provide compensation.

To prevent being sued for copyright infringement, some background on BitTorrents is necessary. BitTorrent is a P2P file sharing protocol. With BitTorrent, every downloader is a source for other users who want that file. Torrents differ from traditional P2P networks like Napster, Kazaa, and Limewire, in that each new file downloader is receiving a different piece of the data from each user who has already downloaded the file that together comprises the whole. Thus, a downloader of Torrent is also an illegal uploader. In legal terms, this means that every BitTorrent user downloading Hurt Locker is infringing copyrighted material by simultaneously acting as a source for others to download the copyrighted material.

BitTorrent users are not anonymous. Therefore, it was possible to obtain the IP addresses of all current and possibly previous downloaders of the movie Hurt Locker. Hurt Locker served a subpoena on the downloader’s ISP requesting that they disclose the personal information for the IP addresses that downloaded the film, and a federal judge ordered the ISP to release the identities of the defendants. In general terms, this is the story of how 50,000 people, based on their IP address, have been sued for copyright infringement for downloading Hurt Locker.
The defendants, if found to have violated the Hurt Locker copyrights, could be liable for damages up to $150,000, not including attorney’s fees.

The foregoing illustrates the dangers of illegal downloading. To protect yourself, you must know who is using your IP address. To do this, password protect your IP address and monitor whom you give the password to. You should contact your internet service provider with any questions regarding this procedure. In sum, to prevent exposure to costly, time consuming, and potentially embarrassing (depending on what was downloaded) litigation, understand the dangers of using torrent technology, limit access to your IP address, and monitor your children’s use of the internet.

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