Where does one start?! I attempt to bring Wisconsin law into my classes for several reasons. The “Diploma Privilege” permits our students to practice in this state without taking the Bar Exam. Wisconsin courts have been pacesetters as to matters considered in the subject areas in which I teach. I believe students should learn, as early as their first year with us, that is not improper for one to find fault with judicial and legislative reasoning, at times even in a humorous fashion, as long as due respect is shown.
The first of my favorites is considered in my Torts class. It is Quesenberry v. Milwaukee County, 106 Wis.2d 685, 317 N.W.2d 468 (1982). It arises in the discussion of the duties of owners and occupiers of land to those who come upon the property. It is referenced to show how, at times, state legislatures see fit to modify common law rules. The case dealt with a provision of the Wisconsin Statutes in effect at the time of an accident (then § 29.68) that barred recovery for injuries received while engaging in “recreational” activities on lands of another.
The plaintiff broke her leg when she stepped into a hole on a golf course fairway. She alleged that the hole was not easily visible. In holding that the statute was not applicable to the plaintiff’s case, the court construed the legislative intent for the statute to apply to “the type of activity that one associates being done on land in its natural undeveloped state as contrasted to the more structured, landscaped and improved nature of a golf course.” 106 Wis.2d at 693, 317 N.W.2d at 472. This case also allows noting to the students that the Wisconsin Legislature subsequently amended the statute (now § 895.52) and in so doing stated that the new “legislation should be liberally construed in favor of property owners to protect them from liability” and that it “is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.” 1983 Act 418, § 1. It helps for the students to be aware that, at times, member of the legislature do read court decisions interpreting legislation and can act to overturn interpretations they do not like. I close the discussion of the case by noting that I am unaware if Quesenberry was one of the cases the legislature was unhappy with. I also note that when I first read the opinion I sent a letter to its author, Justice Day. Therein I said that either he was a scratch golfer or never played the game because the vast majority of golfers spend most of their time on the “natural undeveloped” portions of golf courses.
The second “favorite” is Gross v. Lloyds of London Ins. Co., 121 Wis.2d 78, 358 N.W.2d 266 (1984), which is considered in my Insurance course. In August 1982, at The Experimental Aircraft Association’s annual fly-in at Oshkosh, an unoccupied aircraft owned by the insured rolled into the tent occupied by a young woman. She was severely injured by its operating propeller. The plane owner’s insurer investigated and determined that the woman’s damages greatly exceed the policy limits of $100,000 and that their insured’s liability was clear. It unsuccessfully attempted to settle the case for that amount with the woman’s attorney. It then attempted to tender the policy limits into court so as to be relieved from any further duty to defend its insured. The Supreme Court held that because the insured had not received notice of the change in the duty to defend provisions of the policy, the insurer’s tender of policy limits into court did not relieve it of the duty to defend. It further held that “for an insurer to be relieved of its duty to defend upon tender of the policy limits, the ‘tendered for settlements’ language must be highlighted in the policy and binder by means of conspicuous print, such as bold, italicized, or colored type.” 121 Wis.2d at 89, 358 N.W.2d at 271. Then Justice, now Chief Justice, Abrahamson concurred in remanding the case to the trial court, but she argued that it should be remanded for an evidentiary hearing as to whether the insured knew before the fact that the insurer could terminate its defense effort. She noted that an appellate court cannot make a finding of fact. She also said she “cannot join the majority in its adoption of a ‘readability’ and ‘notice’ rule for binders and insurance policies. These are matters for the legislature and the commissioner of insurance.” 121 Wis.2d at 91, 358 N.W.2d at 272. I also advise my students that the case caused me to write a letter to Justice Abrahamson in which I stated that for the first time I could remember I agreed with one of her opinions in a case dealing with a subject I teach. The letter came back a few days letter with a penned note at its foot: “My God, I must have done something wrong! S.”