If a Trespasser is Injured on My Property, Am I Responsible?

If a Trespasser is Injured on My Property, Am I Responsible?

by | Oct 7, 2024 | 2024, Article, Personal Injury

attractive nuisance, no trespassing

As a landowner, you might wonder whether you need to be concerned about injuries that occur when someone trespasses on your property. Generally, trespassers enter your land at their own risk. Both common sense and the law acknowledge that you have “no duty to anticipate a trespasser’s entry or to provide for a trespasser’s safety.” Your only duty is to “refrain from acts which willfully, wantonly, or recklessly cause injury or death to trespassers.” To be clear, posting a sign warning that “trespassers will be shot” does not make it legal to harm someone.

However, there is an important exception known as the “attractive nuisance” doctrine. Despite the flashy name, attractive nuisance is better understood as “liability for artificial conditions that are highly dangerous to the safety of trespassing children.” Under this doctrine, a landowner may be liable to an injured trespassing child if:

  1. The possessor of real property maintained, or allowed to exist, an artificial condition on the property that was inherently dangerous to children.
  2. The possessor of real property knew or should have known that children trespassed on the property.
  3. The possessor of real property knew or should have known that the artificial condition he or she maintained or allowed to exist was inherently dangerous to children and involved an unreasonable risk of serious bodily harm or death to children.
  4. The injured or killed child, because of their youth or tender age, did not discover the condition or realize the risk involved in entering onto the property or in playing in close proximity to the inherently dangerous artificial condition.
  5. The possessor of real property could have reasonably provided safeguards that would have removed the inherent danger without interfering with the purpose for which the artificial condition was maintained or allowed to exist.

Examples of attractive nuisance include an “insufficiently guarded swimming pool,” poorly guarded or defective trampolines, and a dangerous accumulation of junked cars. While not exhaustive, this list provides examples of artificial conditions that, if not properly safeguarded, could lead to liability.

As a property owner, it is crucial to implement protective measures such as installing locks or fences to prevent children from accessing dangerous conditions. If you have questions or concerns about your property or need advice on how to manage potential liabilities, please contact one of our experienced attorneys. They will be happy to assist you in ensuring your property is safe and legally compliant.

 

 

 

 

Attorney Formella Will Present at the PCBC Business X-Change

by | Sep 23, 2024 | 2024, News

Attorney Brian Formella will present “The 2024 Astute Employer’s Employment Law Update” at the Portage County Business Council – Business X-Change Event on October 9, at 7:30 a.m.

He will discuss the most significant federal and state legal developments that affect most Wisconsin employers. If you would like to attend please click the link to register.

Business X-Change October 9, 2024

Legal Custody vs. Placement

Legal Custody vs. Placement

by | Sep 16, 2024 | 2024, Article, Family Law

Two divorced parents talking to a child. Legal custody concept.

Wisconsin has two distinct concepts relating to minor children in family law cases: Legal Custody and Physical Placement. Many people use these terms interchangeably, but they have distinct legal meanings and implications in the State of Wisconsin.

A. Legal custody refers to the right and responsibility to make major decisions regarding a child’s life. Pursuant to Wisconsin statutes, major decisions include (but are not limited to) consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of education or religion. When entering a judgment of divorce or judgment of paternity, the court must end an order regarding the allocation of legal custody between the parents. The two main options available to the court are joint legal custody or sole legal custody to one of the parents.

1. Joint Legal Custody: The law requires that the court presume (with limited statutory exceptions) that joint legal custody is in the child’s best interest. Joint legal custody is defined as “the condition under which both parties share legal custody and neither party’s legal custody rights are superior” to the other party. This is the most common arrangement, where both parents share the responsibility of making major decisions for their child. Joint legal custody does not necessarily mean equal time with the child, but rather equal say in important matters.

2. Sole Legal Custody: Sole legal custody provides one parent with the exclusive right to make major decisions for the child. The statute provides a rebuttable presumption that it is in a child’s best interest to award sole legal custody to a victim of domestic violence if the court finds that the other parent engaged in in a pattern or serious incident of domestic abuse. There are limited statutory requirements for that rebuttable presumption to be overcome. Sole legal custody is also permitted if the court finds any of the following:
One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child
1. Condition(s) exist that substantially interfere with the exercise of joint legal custody
3. The court finds that the parties will not be able to cooperate in the future decision making required for joint legal custody.

3. Final Decision Making: The court may also award parties joint legal custody, but authorize one party to have final decision making over a category of legal decision making. For example, joint legal custody with one parent having final decision making for non-emergency medical care.

B. Physical placement refers to the time a child spends with each parent and involves the day-to-day care and supervision of the child. Physical placement is essentially about where and with whom the child lives. The child’s best interest is the overarching principle in determining physical placement. Although the statute requires that the court “set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent.” It is important to note that “maximizing placement” does not equate to a presumption for equal placement.

1. Primary Physical Placement: Here, the child lives with one parent for the majority of the time, while the other parent has scheduled placement periods, such as every other weekend.

2. Shared Physical Placement: In a shared placement schedule, the child spends significant time living with both parents. The schedule can vary widely and shared placement is not always equal placement.
As noted above, the statute requires a schedule that maximizes the time the child spends with both parents based on what schedule is in the child’s best interest. This is based on a number of factors including, but not limited to:

  • The wishes of the parents and the child,
  • How well the parties communicate and cooperate with each other,
  • The degree to which each parent can support the child’s relationship with the other parent,
  • The child’s relationship with siblings and others in both parents’ households,
  • The amount of quality time that each parent has spent with the child and will likely be able to spend with the child in the future,
  • The child’s developmental and educational needs, along with issues related to mental health and drug and alcohol abuse.

Legal custody and physical placement issues in family court are often the most expensive issues for parties to litigate. They are also emotionally taxing for parents and children. Understanding the distinction between legal custody and physical placement is crucial for parents navigating the family law system as both aspects play significant roles in the child’s well-being and the parents’ responsibilities. When parents recognize these differences, they can better advocate for arrangements that serve the best interest of their children and ensure a stable, consistent supportive environment as they grow. If you find yourself in a legal dispute over custody and placement and are looking for legal representation, it is important to hire an attorney who fully understands the complex analysis of these issues. It is also advantageous to retain an attorney who you can be open and honest with because a full review of the factors that the court must consider in entering orders for custody and placement are fact driven and the details related to those factors matter. If you are in need of a Family Law Attorney please reach out to our law firm, we would be happy to assist you.

Shipwrecked by a Sidewalk

Shipwrecked by a Sidewalk

by | Aug 5, 2024 | 2024, Article, General

Family walking on main street of historic north american town

With the exponential growth of technology occurring today, there is an often-repeated adage that “the law struggles to keep up with technology.” As such, it is always interesting when the highest Wisconsin court must spend its limited time with the bleeding edge issue…. what is a sidewalk?  The recent Wisconsin Supreme Court decision, Sojenhomer LLC v. Village of Egg Harbor, shows that the Court still must decide, and for the first time, a very early 20th century issue.

Anyone who has spent time in Door County during the summer can attest to the incredible busyness of its towns lined with shops, wine tastings and restaurants. The heavy traffic, combined with parked vehicles and pedestrians on two lane highways can lead to tight and dangerous corridors. In 2015, after hearing numerous complaints about the dangerousness of downtown Egg Harbor for pedestrians, specifically the area of the intersection of County Highway G and State Highway 42, the Village of Egg Harbor decided to act. The Village decided to add a new sidewalk on the on the east side of the County Highway G, among other changes. To build the sidewalk, the Village needed to acquire, through its condemnation power, the 0.009 acres that belonged to Sojenhomer LLC; on that property, Sojenhomer operated the Shipwrecked Brew Pub and Restaurant and used that .009 acres for parking.

Sojenhomer sued to stop the Village on the grounds that the condemnation was prohibited by Wis. Stat. § 32.015, which bars the use of condemnation powers to establish “a pedestrian way.” In Sojenhomer’s eyes, obviously a sidewalk is a pedestrian way, so the Village could not condemn its property to build its desired sidewalk. Unsurprisingly, the Village took the opposite view:  “a pedestrian way” and a “sidewalk” were distinct and separate things. Illustrating how unsettled the matter was, the local circuit court agreed with the Village; the Wisconsin Court of Appeals agreed with Sojenhomer.

As the decider of last resort, the Wisconsin Supreme Court agreed with the Village:  the legislature’s definition of “pedestrian way” does not include “sidewalk.”  Appropriate for the exciting nature of dried concrete, the Court relied on good old-fashioned statutory interpretation rules to reach its decision. The Court found that the statute used the terms “sidewalk” and “pedestrian way” in ways that each term had separate, non-overlapping meaning. To the Court, the fact that various statutes used both terms indicates that the terms were not one in the same. Moreover, when the legislature first introduced the term “pedestrian way,a way designated for pedestrian travel” –  in 1949, the statutes already contained a definition of “sidewalk” as “that portion of a highway between the curb lines and adjacent property lines.” In other words, if a pedestrian way was a sidewalk or a sidewalk was a pedestrian way, there would be no reason for both terms to exist.

The Court noted that sidewalks are a ubiquitous feature of road projects across the state, and if the legislature wanted to prohibit the use of condemnation to build sidewalks, they could have done so easily and clearly. Instead, when limiting condemnation powers, the legislature did not include the word “sidewalk” and instead included the seldom-used phrase “pedestrian way.”

If any dedicated reader has made it this far, he or she hopefully recognizes the slightly tongue-in-cheek nature of this issue. Yet, this case serves as an important reminder and illustration that our courts continue to grapple vigorously (this was a 4-3 decision) with issues and words that most residents would consider antiquated. The ever-changing nature of our world, and its attendant needs, highlight how the stale terms and law must be constantly applied to new fact scenarios every day.

Attorney Yanke was the Program Chair for the WAJ Summer Seminar

Attorney Yanke was the Program Chair for the WAJ Summer Seminar

by | Jul 22, 2024 | 2024, News

Attorney Brad Yanke was the Program Chair for the recent Wisconsin Association for Justice (WAJ) Summer Seminar in Door County. This three day seminar is held every summer and is comprised of 10-20 presentations on a variety of topics that relate to trial lawyers. Attorney Yanke is a Board Member, on the Executive Committe, and on the Legislative Task Force for WAJ.

Please click here for more information on WAJ

Please click here for more information on Attorney Yanke

Medicaid Myths and Truths

Medicaid Myths and Truths

by | Jul 11, 2024 | 2024, Article, Elder Law

Medicaid Myths and Truths, Attorney Amy Eddy

The cost of nursing home care can be substantial, leaving many people wondering when Medicaid will cover long term care costs.  Medicare only covers a small amount of nursing home costs under limited circumstances.  As a result, many seniors will rely on Medicaid, provided they meet the financial eligibility requirements.  Below are some common “myths” about Medicaid eligibility.

Myth: You have to give away everything you own in order to qualify for Medicaid.

Truth: If you need nursing home care for other than a short-term rehabilitative stay, you will be expected to pay the private pay rate unless your assets are below a certain threshold as follows:

  • A single applicant must have under $2,000 plus exempt assets;
  • A married couple who both need care must have under $3,000 plus exempt assets;
  • A married couple with one spouse who needs care and one spouse living at home can keep between $50,000 and $154,140.*

Exempt assets include a vehicle, personal property, a funeral trust, and life insurance if the death benefit is less than $1,500. If an applicant for Medical Assistance is married, the residence is not a countable asset as long as the spouse is living in it, and the retirement assets of the spouse in the community are also exempt.

 

Myth: You will be penalized for five years if you give anything away to qualify for Medicaid.

Truth:  Not exactly.  If you give money or property to your children, or to anyone else, you will be temporarily disqualified from Medicaid eligibility if the gift was made within five years of applying for Medicaid. The recipient of the gift is not required to return the money or property, nor are they otherwise liable for your care costs. The gift is called a “divestment” under the Medicaid rules.

  • “Divestment” is the disposing of assets for less than fair market value. If an applicant for Medicaid has divested assets within five (5) years of applying for Medicaid, a disqualification period may result, which means that the institutionalized person will be ineligible for Medicaid for a period of time. The penalty period is calculated by dividing the total divested amount by the statewide average nursing home cost of care (currently $315.61 per day)* in effect at the time of the Medical Assistance application. This number is the number of days of disqualification.
  • The start date for the period of ineligibility will be (in most cases) “the date on which the individual is eligible for Medical Assistance under the State plan and would otherwise be receiving institutional level care . . . but for the application of the penalty period.” 42 U.S.C. §1396p(c)(1)(D).

 

Myth: You may give $18,000 to each of your children as a way to protect it from the nursing home and it will not be a “divestment.”

Truth. Divestment includes transfer of any assets without any dollar limit. Assets are defined as “all income and resources of the individual or the individual’s spouse, including any income or resources which the individual or such individual’s spouse is entitled to but does not receive . . .” 42 U.S.C. § 1396p(e)(1).  The $18,000 gift amount is the amount that is exempt from gift tax reporting in 2024.*  There is no exempt amount for a divestment.

 

Myth: A revocable trust will protect your assets from the nursing home.

Truth. If income and principal are available to the Grantor, the assets in the trust are available to pay for nursing home care and are not protected. A special needs trust can be used to protect the assets of a disabled individual who is now receiving public benefits, or who may become eligible for benefits in the future.

 

Myth: If you are married and your spouse is in a nursing home, he or she can qualify for Medicaid if you put all of your joint assets in your name.

Truth: Assets are counted, regardless of which name they are in. Furthermore, Marital Property Agreements are disregarded for Medicaid purposes.

 

For answers to more Medicaid questions and concerns, consult with one or our experienced attorneys who practice in elder law and disability planning.

*Amounts change annually and are listed in this Article as of June, 2024.