Monday, October 29, 2012

Wisconsin's Good Samaritan Law

By John DiMotto

       Section 895.48(1) of the Wisconsin statutes sets forth that:

                                any person who renders emergency care at the scene of any emergency
                                or accident in good faith shall be immune from civil liability for his or her 
                                acts or omissions in rendering such emergency care.  This immunity does 
                                not extend when employees trained in health care or heal care 
                                professionals render emergency care for compensation and within the 
                                scope of their usual and customary employment or practice at a hospital 
                                or other institution equipped with hospital facilities, at the scene of any 
                                emergency or accident, enroute to a hospital or other institution equipped 
                                with hospital facilities or at a physician's office.

       This statute is commonly referred to as a "Good Samaritan Law" and the intent of this law is to encourage people, particularly people with medical training and experience, to take action in an emergency situation to provide needed medical attention by providing them with immunity from civil, legal action.

       One of the first appellate cases to discuss Wisconsin's Good Samaritan Law was Mueller v. McMillian Warner Ins. Co., 287 Wis.2d 154 (Ct. App. 2005). The decision addresses the critical words of the statute, giving them their ordinary meanings:

1)  "Scene" is the "place of the occurrence or action" or "locale."
2)  "Emergency" means "an unforeseen combination of circumstances or the resulting state that calls for immediate action" and "a sudden bodily alteration such as is likely to require immediate medical attention."
3)  "Accident" means "a chance ... sudden event or change occurring without intent or volition ... an unexpected medical development esp. of an unfavorable or injurious nature."
4)  "Care" is a general term whose definitions range from "suffering of mind" to "serious attention" to "custody...charge, supervision, management."
5)  "Good faith" is a term which complicates the matter.  It can mean "a belief in one's legal title or right."  But it can also mean "absence of fraud, deceit, collusion, or gross negligence."  It can be measured subjectively or objectively.

       In the decision, the court reflected that the legislative intent of the law, which was first enacted for professionals in 1963, was to encourage those with medical training to respond to emergency situations outside of the professional environment.  In 1977, the legislature expanded immunity to include any person who rendered emergency care in good faith at the scene of an emergency or accident.

       While the statute grants immunity from liability, it does not prevent the filing of a lawsuit against a purported Good Samaritan.  A lawsuit can still be filed and the purported Good Samaritan must still defend against the lawsuit. 

       In Clayton v. American Family Mutual Insurance Co., 305 Wis.2d 766 (Ct. App. 2007) the court held that if a lawsuit is filed and the party being sued claims the protection of the Good Samaritan law, the lawsuit can continue if there is a genuine issue of material fact as to whether emergency care was rendered, if the emergency care was provided at the scene of the emergency, or if it was provided in good faith. Normally, a motion for summary judgment will be filed by the purported Good Samaritan to determine if there is a genuine issue of material fact regarding the conduct.


       The Wisconsin legislature has provided a safeguard for medical professionals and ordinary individuals who take action to help others in emergency situations by providing immunity from liability in the creation of 895.48(1).  It is a legislative declaration that people who help people should have not suffer the indignity of being punished for their acts of kindness.   

Thursday, August 30, 2012

Civil Discovery In Wisconsin

By John J. DiMotto

     Chapter 804 of the Wisconsin Statutes addresses the rules of civil procedure with respect to discovery in civil cases.  It sets for what discovery can be sought, how it can be sought, the timing of obtaining the discovery as well as sanctions for failing to comply with discovery.  As is the case with most statutes, while the language of the various discovery statutes may appear clear and obvious, nothing could be farther from the truth.  A look at two specific statutory sections and case law discussing those statutes and discovery in general gives us an insight into what can be a mine field for the practitioner seeking discovery.
     804.01(1) addresses discovery methods.  They include depositions upon oral examination or written questions; written interrogatories; production of documents or things; permission to enter upon land or property for inspection purposes; physical and mental examinations and requests to admit.
     804.01(2)(a) addresses the scope of discovery in general.  It sets forth that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  Furthermore, it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
1)  Wisconsin allows pretrial discovery to speed up trials.  Pretrial discovery is a fundamental due process right.   State v. Maday, 179 Wis.2d 346 (Ct. App. 1993).
2)  The right to discovery is an essential element of our adversary system.  In order for it to effectively ensure the ability of litigants to uncover the truth and to seek and be accorded justice, it is the court's responsibility to render decisions that do no harm to the fundamental and important right of litigants to access courts.  Sands v. Whitnall School District, 312 Wis.2d 1 (2008).
3)  Wisconsin's Discovery statute is a broad charter, consistent with the underlying purpose of pretrial discovery -- designed to formulate, define and narrow issues to be tried.  Ranft v. Lyons, 163 Wis.2d 282 (1991).
4)  The utmost freedom is allowed in taking depositions.  Restrictions are imposed upon their use.  State ex rel Dudek v. Circuit Court, 34 Wis.2d 559 (1967).
5)  Preparing for trial on issues in question is a reasonable expectation.  Discovery plays a vital role in issue formulation and limitation.  there is the need for effective sanctions against those who abuse discovery process.  Michael A.P. v. Solsrud, 178 Wis.2d 137 (Ct. App. 1993).
6)  Discovery is designed to eliminate surprise.  Meunier v. Ogurek, 140 Wis.2d 782 (Ct. App. 1981).
7)  The purpose of discovery is the ascertainment of the truth.  Broad discovery rules encourage thorough investigation and fosters revelation of objective truth.  Privileged matter presents limited exception to the broad scope of discovery.  Crawford v. Care Concepts Inc., 243 Wis.2d 119 (2001).
8)  Discovery is vested to the sound discretion of the trial court.  Borgwardt v. Redlin, 196 Wis.2d 342 (Ct. App. 1995).
9)  Management of discovery is within the discretion of the trial court.  Cruz v. All Saints Healthcare System Inc., 242 Wis.2d 432 (Ct. App. 2001).
10)  Discovery disputes are addressed to the trial court's discretion.  Braverman v. Columbia Hospital Inc., 244 Wis.2d 98 (Ct. App. 2001).
11)  Court can be asked to do an in camera inspection of records to decide whether the records are discoverable.  Konle v. Page, 205 Wis.2d 385 (Ct. App. 1996).
12)  If a party will not comply with a request discovery request, the aggrieved party can bring a motion to compel with the trial court.  State v. Hydrite Chemical Co., 220 Wis.2d 51 (Ct. App. 1998).
13)  The trial court can issue a protective order for good cause under 804.01(3)(a).  state ex rel Robinson v. Town of Bristol, 264 Wis.2d 318 (Ct. App. 2003).
14)  Because of the unique character of civil discovery, trial courts have substantial latitude to fashion protective orders. State ex rel Mitsubishi v. Milwaukee Co., 233 Wis.2d 1 (2000).
15)  Upon a showing of good cause, 804.01(3)(a) authorizes the trial court to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense in a discovery proceeding. State v. Beloit Concrete Stone Co,, 103 Wis.2d 506 (Ct. App. 1991).
16)  Under 804.12(2)(b), the trial court can order attorneys fees for discovery abuse.  Determinations regarding what amount of attorneys fees were reasonably incurred as a result of discovery abuses are within the discretion of the trial court.  Hur v. Holler, 206 Wis.2d 334 (Ct. App. 1996).
17)  The trial court can impose sanctions for discovery violations. If the conduct is egregious or in bad faith and without clear and justifiable excuse and if a party has been given notice of potential dismissal for discovery violations the court can order dismissal with prejudice. Industrial Roofing Services Inc. v. Marquardt, 299 Wis.2d  81 (2007).
18)  Egregious misconduct is extreme, substantial and persistent.   Selmer Co. v. Rinn, 328 Wis.2d 263 (Ct. App. 2010).
19)  Because dismissal of a complaint terminates the litigation without regard to merits of the claim, it is an extremely drastic penalty that should be imposed only where such harsh measures are necessary. Conduct must be egregious or in bad faith -- both are not needed.  Bad faith must be intentional or deliberate.  Egregious conduct, though unintentional, it is so extreme, substantial and persistent that the trial court may dismiss the action. If the discovery sought is peripheral, this significantly reduces the severity of the conduct.  Hudson Diesel Inc. v. Kenall, 194 Wis.2d 532 (Ct. App. 1995).
20)  The trial court has the statutory and inherent authority to punish a party for failing to comply with pretrial order to disclose expert witnesses.  Glaeske v. Shaw, 261 Wis.2d 549 (Ct. App. 2003).
21)  Dismissing an action or striking pleadings are severe sanctions and should not be employed for violation of trivial procedural orders.  Geneva National Community Assn Inc. v. Friedman, 228 Wis.2d 572 (Ct. App. 1999).
22)  Court's discretion to impose sanctions is not dependent on showing the opposing party has been actually prejudiced by the delay.   Sentry Ins. v. Davis, 247 Wis.2d 501 (Ct. App. 2001).
     Discovery is an integral part of a lawsuit.  It is of the utmost importance that litigants be given the opportunity to obtain information via discovery so that the "search for the truth" can be fostered.  The rules regarding discovery must be followed and sanctions for violations must imposed if the integrity of the judicial process is to prevail.

Thursday, August 16, 2012

Credibility of Witnesses

By: John J. DiMotto

     One of the most important functions of the "fact finder" in a judicial proceeding is to determine the credibility of the witnesses and the weight of the evidence.  In a jury trial, the "fact finder" is the jury.  In a court trial or when resolving motions, the "fact finder" is the judge.  So, what does the "fact finder" have to do in order to decide credibility and weight?  How does the "fact finder" make the determinations.  What are the guiding principles with respect to the determination of credibility or witnesses and weight of evidence?  A look at Wisconsin case law and the Standard Jury Instructions, Criminal (300) and Civil (215), gives us guidance and some answers.


Jezeski v. Jezeski, 316 Wis.2d 178 (Ct. App. 2008)
1)  The fact finder has the responsibility to gauge the persuasiveness of the testimony.
2)  The fact finder resolves conflicts and inconsistencies in the evidence.
3)  The fact finder may believe some testimony of one witness and some testimony of another even though their testimonies, read as a whole, may be inconsistent.
4)  Unless testimony is inherently incredible, an appellate court may not substitute its judgment for the fact finder's judgment.

Teubel v. Prime Development Inc,, 249 Wis.2d 743 (Ct. App. 2002)
1)  The fact finder is the ultimate arbiter of the credibility of witnesses and the weight to be given to each witness' testimony.
2)  This is especially true because the fact finder has the opportunity to observe witnesses and their demeanor.
Covelli v. Covelli, 293 Wis.2d 707 (Ct. App. 2006)
1)  In a court trial, weight and credibility to be given to testimony is uniquely in the province of the trial court.
2)  The trial court has a superior view of the total circumstances of the witness's testimony.

State v. Kimbrough, 246 Wis.2d 648 (Ct. App. 2001)
1)  A trial court has the responsibility, when acting as the fact finder, to determine the credibility of each witness and can properly reject even uncontroverted testimony if it finds the facts underpinning the testimony untrue.
2)  Even when a single witness testifies, the trial court may choose to believe some assertions of the witness and disbelieve others.  This is especially true when the witness is the sole possessor of relevant facts.

Bretl v. LIRC, 204 Wis.2d 93 (Ct. App. 1996)
1)  Credible evidence is that which excludes speculation and conjecture.

State v. Lossman, 118 Wis.2d 526 (1984)
1)  In weighing evidence the jury (fact finder) may take into account matters of common knowledge and experience in the affairs of life.

State v. Lombard, 266 Wis.2d 887 (Ct. App. 2003)
1)  Jurors (fact finders) are not required to base their determinations of the weight and credibility of witnesses on the number of witnesses who testify in favor of or against the existence of a disputed fact.

State v. Kienitz, 227 Wis.2d 423 (1999)
1)  The fact finder is not bound by opinion of an expert,  The fact finder can accept or reject the expert's opinion.
2)  The fact finder may accept certain portions of an expert's testimony while disregarding other portions.

State v. Zanelli, 212 Wis.2d 358 (Ct. App. 1997)
1)  Conflicts in expert testimony goes to credibility not admissibility of the evidence.

State v. Turner, 186 Wis.2d 277 (Ct. App. 1994)
1)  Credibility of witnesses is determined by words, tonal quality, volume and speech patterns -- all of which give clues as to whether the witness is telling the truth.

State v. Anson, 275 Wis.2d 832 (Ct. App. 2004)
1)  The fact finder has no obligation to believe everything a witness says.

Rohl v. State, 65 Wis.2d 683 (1974)
1)  Incredible evidence  is evidence that is in conflict with uniform course of nature or with fully established or conceded facts.

Cogswell v. Robert Shaw Controls Col, 87 Wis.2d 243 (1979)
1)  When more than one reasonable inference can be drawn from credible evidence, an appellate court must accept the inference drawn by the fact finder.

State v. Kimberly B., 283 Wis.2d 731 (Ct. App. 2005)
1)  It if the jury's (fact finder's) task to sift and winnow the credibility of the witnesses.

Olson v. Milwaukee Auto Ins. Co., 266 Wis.106 (1954)
1)  Where testimony at trial conflicts, the court must recognize that it was for the jury (fact finder) to determine where the truth lies.

Yates v. Holt-Smith, 319 Wis.2d 756 (Ct. App. 2009)
1)  Determinations of subjective interest or motivation of witness are factual ad left to the fact finder.

State v. Krueger, 314 Wis.2d 605 (Ct. App. 2008)
1)  In the courtroom, during a jury trial, the jury is the lie detector.

State v. Scott, 234 Wis.2d 129 (Ct. App. 2000)
1)  A trial is a search for the truth and as such impeachment helps the jury to evaluate credibility.

Sturdevant v. State, 49 Wis.2d 142 (1970)
1)  Mental impairment alone is insufficient to affect credibility.

     While case law gives us guiding principles, the "nuts and bolts" of what the fact finder looks for is best set forth in the standard jury instructions, criminal and civil.  The fact finder should consider:

1)  Whether the witnesses has an interest or lack of interest in the result of the trial.
2)  The witness's conduct, appearance and demeanor on the witness stand.
3)  The clearness or lack of clearness of the witness's recollections.
4)  The opportunity the witness had to observe and know the matters the witness testifies about.
5)  The reasonableness of the witness's testimony.
6)  The apparent intelligence of the witness.
7)  Bias or any if any is shown.
8)  Possible motives for falsifying testimony.
9)  All other facts and circumstances during the trial that tend to support or discredit the testimony.

     These nine factors can be summed in six words:  common sense and experience in life.
     There is no magic involved.

     In the final analysis, the determination of the credibility of witnesses and the weight of the evidence is solely within the province of the fact finder be it the trial court or the jury. 

Tuesday, July 10, 2012

Court Competency To Act in Probate & Children's Court Actions

     There are many statutes that set forth time lines that must be met in order for the court to have competency to act and jurisdiction to proceed.
     In Chapter 48, there are time lines for both CHIPS (Children in Need of Protection or Service) cases as well as TPR (Termination of Parental Rights) cases.  If their time lines cannot be met, they can be extended for "good cause" under provisions set forth in 48.315.  Furthermore the failure of a party to object to a period of delay or a continuance waives any challenge to the court's competency to act during that time period.
     In Chapter 51, there are time lines for Involuntary Commitment cases.  While there are strict time lines for timely conducting hearings, there are provisions for some limited extensions of time as well as the ability to waive of some of the time lines.
     In Chapter 938, there are time lines for delinquency cases. Similar to the provisions in Chapter 48, time lines can be extended upon consent or for good cause as set forth in 938.315.
     In Chapter 54 Guardianship cases and in Chapter 55 Protective Placement cases there are time lines holding the final hearings. However, unlike the time line provisions in Chapter 48, 51 and 938, there are no provisions for good cause extensions in Chapter 54 and Chapter 55.  If the time lines in Chapter 54 and 55 are not met, the court loses competency to act and the case must be dismissed.  In this blog, I would like to look some of the statutory provisions at issue.

                                                                     CHIPS cases

1)   When a CHIPS case is filed, a plea hearing must be held within 10 days of the filing of the petition if the child is in secure detention and within 30 days if not in secure detention.
2)   If at the plea hearing, the petition will be contested, a fact finding hearing must be held within 20 days if the child is in secure detention and 30 days if not in secure detention.
3)   If grounds for a CHIPS order are found after a fact finding hearing, a dispositional hearing is to be held  within 10 days if the child is within secure detention or within 30 days if not in secure detention.  The parties can stipulate to proceed immediately to the dispositional hearing.
4)   These time lines can be extended by consent or for good cause. see 48.315.

                                                                   TPR cases

1)   When a TPR petition is filed, the court shall conduct an initial appearance within 30 days.
2)   A fact finding hearing -- Jury or court trial  -- shall be held within 45 days of the initial appearance.
3)   If grounds are established, a dispositional hearing should proceed immediately although it can be adjourned for up to 45 days.
4)    These time lines can be extended by consent or for good cause. see 48.315.

                                                          Involuntary Commitment cases

1)    When an Involuntary Commitment petition is filed, the court shall conduct a probable cause hearing within 72 hours of the time the subject was detained.  This time period may be postponed for up to 7 days from the date of detention upon request of the subject or subject's attorney.
2)   If probable cause is found and the subject is in detention, the final hearing must be within 14 days of the date of detention provided no jury is demanded or within 14 days where a jury is demanded within 5 days from date of detention.  A final hearing must be held within 14 days of .a jury demand if the demand was made more than 5 days from the date of detention.
3)   If probable cause is found but the subject is not in detention, the final hearing must be held within 30 days of the probable cause hearing.
4)   With respect to final hearings, the court loses competence to act after the expiration of time limits. Time constraints cannot be waived.  However, reasonable extension of 14 day deadline may be allowed where the extension is caused solely by the conduct and manipulation of the detained subject. see County of Milwaukee v. Edward S., 247 Wis.2d 87 (Ct. App. 2001).

                                                          Protective Placement cases

1)   A final hearing on a Chapter 55 petition for protective placement of an incompetent person must be held within 60 days of the filing of the petition.  Upon request, the court can grant one 45 day extension.
2)   Failure to conclude the hearing within the 60/105 day time line deprives the court of competency to act.  see State ex rel Sandra D. v. Getto, 175 Wis. 490 (Ct. App. 1993)
3)  There are no provisions for any extensions by consent or even for good cause.

                                                             Guardianship cases

1)    A final hearing on a Chapter 54 petition for guardianship must be held within 60 days of the filing of the petition if the ward is in a nursing home or community based residential facility under 50.06.
2)   If the person is not in a nursing home or community based residential facility under 50.06, the final hearing must be held within 90 days of the filing of the petition.
3)   Failure to conclude the hearing within the 60/90 day time line deprives the court of competency to act.
4)   There are no provisions for any extensions by consent or even for good cause. see In re: Guardianship/Protective Placement of Elizabeth L.  (unpublished Court of Appeals case released on June 5, 2012)


1)   Competency is the court's power to exercise subject matter jurisdiction.  However, competence is a narrower concept than subject matter jurisdiction.  see Amy Z. v. Jon T., 272 Wis.2d 662 (Ct. App. 2004).     2)   Generally, a challenge to a court's competency to act is waived if not raised in the trial court.  see Village Trempealeau v. Mikrut, 273 Wis.2d 76 (2004).  However, the waiver rule does not apply to noncompliance with statutory time limits absent a statutory provision for extension or good cause.
3)   It is incumbent on the practitioner in Chapter 48, 51, 54, 55 and 938 cases to be aware of the case law and statutory provisions governing time lines in these cases.

Tuesday, May 29, 2012

The Five-Sixth Verdict Rule

   When a civil case is tried to a jury the "5/6 verdict rule" applies. The rule is set forth in 805.09(2).  It reads as follows:
   VERDICT:  A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury.  If more than one question must be answered to arrive at a verdict on the same claim, the same five sixths of the jurors must agree on all the questions.
   The rule makes it clear that the interrelationship between the questions on each claim is what is critical.  There must be consistency in the answers to each question on a particular claim.  The rule does not require that the same five-sixths of the jurors must agree on all the questions on the verdict.  They must agree on all the questions necessary to arrive at a verdict on the claim at issue.  An examination of case law gives us guidance in the application of the rule.
                        Five-Sixths Rule -- Black Letter Law
The black letter principles of the five-sixths rule were set forth by the Wisconsin Supreme Court in Giese v. Montgomery Ward, Inc., 111 Wis.2d 392 (1983).  The court indicated that the five-sixths rule does not require that the same ten jurors must agree on every question.  Rather, the rule requires that the same ten jurors must agree on all questions necessary to support a judgment on a particular claim. see Scipior v. Shea, 252 Wis. 185 (1948).  The review is done on a claim by claim basis rather than as a whole. see Krueger v. Winters, 37 Wis.2d 204 (1967).  Dissents which are important to one claim may be immaterial to another claim. see Scipior, supra.  The rule applies the same whether the assessment of the rule is as to the plaintiff or the defendant.  see Augustin v. Milwaukee Electric Railway & Transport Co., 259 Wis.625 (!951).  Where there are not the same 10 jurors agreeing on liability and damages there is a five sixths rule violation and a new trial as to damages is warranted. see City of West Allis v. WEPCO, 248 Wis.2d 10 (Ct. App. 2001.
     Case Law Examples of How to Apply the Five-Sixths Rule
   In Augustin, the jury determined that the defendant was not negligent, with two dissenting jurors.  The jury also determined that the plaintiff was not contributorily negligent with respect to three or four theories of liability presented, with two different jurors dissenting on one of the theories.  On appeal the Court held that since ten of the jurors found no negligence by the defendant that defendant was entitled to a judgment of dismissal since that finding was dispositive as to the defendant.
   In Will v. Chicago, Milwaukee & St. Paul Railway Co., 191 Wis. 247 (1926), the jury, with one dissenter, determined that the defendant was not negligent but also determined, with two dissenters, that the plaintiff was contributorily negligent.  The trial court found a five-sixths rule violation and ordered a new trial.  On appeal, the Court reversed the trial court holding that the absence of negligence on the part of the defendant was dispositive because it was a complete verdict for the defendant.
   In Nommensen v. Amreican Continental Ins., 239 Wis.2d 129 (Ct. App. 2000), ten jurors (#1-10) found no negligence on the defendant on the negligence question.  Two jurors (#11-12) dissented.  On the cause question,  ten jurors (#3-12) found no cause.  Two jurors (#1-2) dissented.  On appeal, the plaintiff contended that since the two jurors that dissented from the negligence finding were not the same two jurors who dissented from the finding of no causation that there was a violation of the five-sixths rule.  The court of Appeals held that there was no violation because the jury's finding of no causation, standing alone, resolved the issue.  Juror #11-12, in their dissent to the negligence question, found that there was negligence and in   finding no cause together with eight other jurors who found no negligence met the five-sixths rule.
    When applying the Five-Sixths Rule, it is of the utmost importance that the analysis of the integrity of the verdict look toward what is essential to complete the verdict with respect to the claim at issue.

Wednesday, March 21, 2012

Injunction Law in Wisconsin - An Overview

By John DiMotto

Chapter 813 of the Wisconsin Statutes addresses Wisconsin's injunction law and sets forth the various types of injunctions which people may obtain an against others as well as the circumstances, procedures and standards that must be met in order to comply with due process of law. Today, I begin a series on injunction law in Wisconsin by looking at what an injunction is and the types of injunctions that are available.

What is an Injunction?

An injunction is a prohibitive, equitable remedy issued or granted by a court at suit of a petitioner directed at a respondent forbidding the respondent from doing some act which the respondent is threatening or attempting to commit or restraining a respondent in continuance thereof, such act being unjust, inequitable or injurious to the petitioner and not such as can be addressed by an action at law. Once issued a judge can modify or vacate the decree as events may shape the need. see State v. Odell, 193 Wis.2d 333 (1995).

When can an Injunction be issued?

An injunction can only be issued after a respondent has been given notice of the petition. However, a respondent may be restrained via a temporary restraining order (TRO) until the decision whether to grant or refuse the injunction is made after a hearing on the petition for injunction. see 813.05(1) and 813.08.

An injunction can be justified only in extreme circumstances. Accordingly, a court may not grant an injunction (ie. domestic abuse) unless it finds reasonable grounds that the respondent engaged in or may engage in abusive conduct (ie. domestic abuse) of the petitioner. see Laluzerne v. Stange, 200 Wis.2d 179 (Ct. App. 1996).

What Types of Injunctions can be issued?

There are three types of injunctions that can be issued: Temporary Injunctions, General Injunctions and Statutory Specific Injunctions.

Temporary Injunctions

1) When it appears from a party's pleadings that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure a party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. see 813.02(1)(a).

2) Factors to be considered and which the petitioner must show are:

a) reasonable probability of success on the merits,

b) an inadequate remedy at law, and

c) irreparable harm.

3) The terms of the temporary injunction are within the trial court's discretion.

see Spheeris Sporting Goods v. Spheeris on Capitol, 157 Wis.2d 298 (Ct. App. 1990).

4) Temporary injunctions at to be issued only when necessary to maintain the status quo.

see School District of Slinger v. WIAA, 210 Wis.2d 366 (Ct. App. 1997).

General Injunctions

Injunctive relief ("general" injunction) may be sought and obtained when a litigant generally shows that the injunction is necessary to prevent irreparable harm.

1) The purpose of a "general" injunction is to prevent future violations.

2) Past injuries are, in themselves, no ground for a "general" injunction. A "general" injunction is only granted when necessary to restrain irreparable mischief, suppress oppressive and indeterminable litigation or prevent a multiplicity of suits.

3) There must be no adequate legal remedy available.

see Kohlbeck v. Reliance Construction Co. Inc., 256 Wis.2d 235 (Ct. App. 2002).

Injunctions are not to be issued lightly. The cause must be substantial. see School District of Slinger, supra.

Statutory Specific Injunctions

There are four statutory specific injunctions that may be obtained:

1) Domestic Abuse Restraining Orders and Injunctions -- 813.12.

2) Child Abuse Restraining Orders and Injunctions -- 813.122.

3) Individual at Risk Restraining Orders and Injunctions -- 813.123.

4) Harassment Restraining Orders and Injunctions -- 813.125.

With respect to each of these injunctions:

1) A temporary restraining order may be requested and shall be granted if the petition is legally sufficient and sets forth "reasonable grounds to believe."

2) The petition must be served on the respondent prior to the hearing on the injunction.

3) The hearing on the petition shall be held within 14 days of the filing of the petition with one 14 days extension if service is not effectuated prior to the first hearing date.

4) At the hearing, the burden of proof is on the petitioner to establish "reasonable grounds to believe" the allegations in the petition. All parties have the right to submit evidence. The Rules of Evidence apply at the hearing.

5) If the court finds that the petitioner has met the burden of proof, the injunction shall be issued for the time sought by the petitioner as allowed by statute.

6) The court cannot issue "mutual" injunctions where there is no stipulation to do so. see Laluzerne, supra.

Foreign Protection Orders -- 813.128

Injunctions obtained in another state or country -- Foreign Protection Orders -- are given full faith and credit in Wisconsin if they meet the requirements of 806.247(2). That is:

1) The foreign protection order was obtained only after the respondent subject of the order was provided with reasonable notice of the action and opportunity to be heard sufficient to protect the respondent's right to due process. If the foreign protection order is an ex parte injunction or order, the respondent shall have been given notice and the opportunity to be heard within a reasonable time after the order was issued sufficient to protect the respondent's right to due process. This means that the court in the foreign jurisdiction had personal jurisdiction over the respondent. If the foreign jurisdiction's rules regarding service must give the respondent reasonable notice and opportunity to be heard in order for

Wisconsin courts to give the foreign protection order full faith and credit.

2) The foreign court that issued the order had subject matter jurisdiction.

Full faith and credit will not be given to a foreign protection order:

1) That is issued against the person who filed a written pleading with a court for a protection order if no written pleading was filed seeking the foreign protection order against that person or

2) Where a cross or counter petition was filed but the court did not make a specific finding that each party was entitled to a foreign protection order.


Injunction are an equitable remedy that provide redress for individuals where there is no adequate remedy of law. They provide protection from harm.

In my next blog, I will begin looking at the statutory specific injunctions and the procedures and standards that must be met in order to obtain such injunctions.

Saturday, February 11, 2012

Bench and Bar Experiences to Return Soon

By John DiMotto

I have not posted in quite some time due to an illness in my family. I expect to begin blogging again in the next couple of weeks.