Markweise v. Peck Foods Corp.

556 N.W.2d 326, 205 Wis. 2d 208, 1996 Wisc. App. LEXIS 953

Opinions

FINE, J. This

is an interlocutory appeal by the City of Milwaukee and General Chemical Corporation from an order entered by the trial court certifying as a class under Rule 803.08, Stats., all persons who claim or who may claim before these cases are concluded to have been injured by the Cryptosporidium infestation of some of Milwaukee's drinking water in 1993.¹ The City argues that the certification order's inclusion of those claimants and potential claimants who have not complied with § 893.80, STATS., is improper. We agree. At oral argument, General Chemical contended that the certification threatened to deprive the defendants of their right to a jury trial guaranteed by Article I, § 5 of the Wisconsin Constitution. We remand to the trial court for further consideration of this issue.

1. The City of Milwaukee. Section 62.25(1), Stats., provides: "No action may be brought or maintained against a city upon a claim or cause of action unless the claimant complies with s. 893.80." As material here, § 893.80(1), STATS., provides:

Except as provided in subs, (lm) and (lp), no action may be brought or maintained against any [government entity]... unless:

(a) Within 120 days after the happening of the event giving rise to the claim, written notice' of the circumstances of the claim signed by the party, agent or attorney is served on the [government entity] .... Failure to give the requisite notice shall not bar action on the claim if the [government entity] had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the [government entity]. ²

The class-action procedure authorized by RULE 803.08, STATS., does not trump this notice requirement. Carpenter v. Racine Comm'r of Pub. Works, 115 Wis. 2d , 215-217, 339 N.W.2d 608, 610 (Ct. App. 1983), cert. denied, 466 U.S. 904.

Notices purporting to comply with § 893.80(l)(a), STATS., were filed by the class on behalf of named persons, who were alleged to have suffered damages as a result of the Cryptosporidium infestation, and "other persons similarly situated." This reference to pérsons as of yet unidentified does not satisfy the "written notice of the circumstances of the claim" requirement of § 893.80(1)(a). See Hicks v. Milwaukee County, 71 Wis. 2d 401, 407, 238 N.W.2d 509, 513-514 (1976) (notice presenting "multiple claims" must "identify the claimants and show that the claims are being made by their authority"); see also Carpenter, 115 Wis. 2d at 216-217, 339 N.W.2d at 610.

The plaintiffs argue that even if the notices that were filed on behalf of the unknown members of the class did not satisfy § 893.80(1)(a), STATS., the City had "actual notice" within the meaning of § 893.80(1)(a)'s savings clause: "Failure to give the requisite notice shall not bar action on the claim if [the government entity] had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the [government entity]." We disagree.

"Section 893.80(1)(a), STATS., is a notice of injury statute," designed to "allow governmental authorities to make a prompt investigation of the circumstances giving rise to a claim." Elkhorn Area School Dist. v. East Troy Community School Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206, 208 (Ct. App. 1982); see also Vanstone v. Town of Delafield, 191 Wis. 2d 586, 593, 530 N.W.2d 16, 19 (Ct. App. 1995) (purpose of § 893.80(1)(a) is to enable entity to "investigate and evaluate" claim). Thus, it permits claims to proceed against the designated government entities even though a claimant has not filed a notice in proper form if the government entity "had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial" to the entity. Section 893.80(1)(a) (emphasis added).

The term "actual notice" in § 893.80(l)(a), STATS., "is the equivalent of actual knowledge." Elkhorn Area School Dist., 110 Wis. 2d at 5, 327 N.W.2d at 209. Thus, the provision requires that the government entity not only have knowledge about events for which it may be liable, but also the identity and type of damage alleged to have been suffered by a potential claimant. Id., 110 Wis. 2d at 5-6, 327 N.W.2d at 209.³ Nor could the rule be otherwise, given the statute's purpose: unless the government entity has "actual knowledge" of both the claimant and his or her claim, the investigation and evaluation envisioned by the statute is impossible. Significantly, in both Hicks and Carpenter the government entities knew about the circumstances that were alleged to have caused the harm for which the plaintiffs sought class-action relief. See Hicks, 71 Wis. 2d at 403, 238 N.W.2d at 511-512 (alleged overcharging of Huber-law inmates); Carpenter, 115 Wis. 2d at 214, 339 N.W.2d at 609 (decision by municipality to not make solid-waste pickups from residential buildings with five or more dwelling units). Here, although the record indicates that the City knows about and has investigated the 1993 Cryptosporidium infestation, and that it also knows the identity of some persons who claim injuries as a result of that infestation even though those persons may not have filed notices under § 893.80(1)(a), there is nothing in the record indicating that the City is aware of all those who have been swept into the Rule 803.08, STATS., class.⁴ The City cannot investigate and evaluate the claims of those yet unknown. Moreover, there is nothing in this record to support a determination that those prosecuting the class action have shown that the "failure to give the requisite notice has not been prejudicial" to the City. See § 893.80(l)(a). Indeed, there can be no assessment of "prejudice" until the identity of each claimant is known and the circumstances of his or her claim are explored.

The plaintiffs argue that even if there has been no compliance with § 893.80(1)(a), STATS., with respect to those members of the class who are as of yet unknown, compliance with § 893.80(1)(a) was not required because their action is based, in part at least, on the City's alleged failure to inspect a drainage connection pipe at an alleged source of the contamination. This, they contend, puts them within § 893.80(1p), STATS., which, they claim, exempts them from the notice requirement of § 893.80(1)(a). We disagree.

As we have seen, § 893.80(1)(a), Stats., provides, as material here: "Except as provided in subs, (1m) and (1p), no action may be brought or maintained against any [government entity] unless:" there is compliance with § 893.80(1)(a) & (b). Section 893.80(1p), Stats., provides:

(1p) No action may be brought or maintained with regard to a claim to recover damages against any political corporation, governmental subdivision or agency thereof for the negligent inspection of any property, premises, place of employment or construction site for the violation of any statute, rule, ordinance or health and safety code unless the alleged negligent act or omission occurred after November 30, 1976. In any such action, the time period under sub. (1) (a) shall be one year after discovery of the negligent act or omission or the date on which, in the exercise of reasonable diligence the negligent act or omission should have been discovered.

As with the analysis of any statute, we must give to § 893.80, Stats., the meaning encompassed by its words, see DNR v. Wisconsin Power & Light Co., 108 Wis. 2d 403, 408, 321 M.W.2d 286, 288 (1982), because those words express its purpose, see 62 Cases of Jam v. United States, 340 U.S. 593, 596 (1951).

Section 893.80(1p), STATS., does two things. First, it precludes actions based on "the negligent inspection of any property, premises, place of employment or construction site for the violation of any statute, rulé, ordinance or health and safety code unless the alleged negligent act or omission occurred after November 30, 1976." Second, it sets a time limit within which to bring such an action. There is nothing in either § 893.80(1) or § 893.80(1p) that even hints that the notice provisions of § 893.80(1)(a) & (b), STATS., are inapplicable to actions founded on alleged negligent inspection, just as there is nothing in either § 893.80(1) or § 893.80(1m) that suggests that the notice provisions of § 893.80(1)(a) & (b) are inapplicable to medical-malpractice actions.⁵ Indeed, the words "[ejxcept as provided in subs, (1m) and (1p)" indicate that § 893.80(1)(a) & (b) are modified by § 893.80(1m) & (1p) only insofar as the terms of § 893.80(1m) & (1p) conflict with those in § 893.80(1)(a) & (b). Significantly, the legislative history of § 893.80(1p) reveals that the legislature intended only to ensure a November 30, 1976, start date for actions based on alleged negligent inspection and to establish a one-year statute of limitations.⁶

That portion of the trial court's certification order against the City that includes within the class those claimants and potential claimants who have not complied with § 893.80(1), Stats., is reversed.

2. Jury-trial right. Article I, § 5 of the Wisconsin Constitution provides that "[T]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy." At oral argument, counsel for General Chemical argued that the class action procedure, as envisioned by the plaintiffs, and, apparently, by the trial court, would deprive the defendants of their right to have their liability to each member of the class decided by a jury. In rejoinder, plaintiffs' counsel indicated that she foresaw that any money awarded to the class would be apportioned to the various claimants by a tribunal constituted for that purpose by the trial court. Under that circumstance, of course, the tribunal would have to determine such issues as causation (did the claimant suffer injury, and, if so, was it caused by the Cryptosporidium infestation) and contributory negligence with respect to each claimant lining up for his or her share of the money. Although the right-to-jury-trial issue was not argued in the briefs, and would thus in the usual case be deemed waived, see In re Estate ofBalkus, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593, 598 n.5 (Ct. App. 1985), the deprivation of the constitutional right to a jury resulting from the trial court's certification of the class, if in fact there were such a deprivation, is significant enough for us to consider nevertheless, see Weichers v. Weichers, 197 Wis. 159, 162, 221 N.W. 733, 734 (1928) (public interest in legal issue may justify appellate review of matter that might otherwise be deemed waived).

The right to a jury trial in civil cases that is guaranteed by Article I, § 5 of the Wisconsin Constitution is substantially similar to that right guaranteed by the Seventh Amendment to the United States Constitution ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."). The Seventh Amendment jury-trial right does not apply to the states. Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916). Nevertheless, we may be guided by the federal cases interpreting that provision. See State v. Miller, 202 Wis. 2d 56, 68-69, 549 N.W.2d 235, 241 (1996) (appropriate to use "principles and analytical framework developed by the United States Supreme Court" in cases involving a provision of the United States Constitution that is similar to the provision of the Wisconsin Constitution under consideration, unless the Wisconsin Constitution affords greater protections) (First Amendment); State v. Tompkins, 144 Wis. 2d 116, 135, 423 N.W.2d 823, 831 (1988) (Fourth Amendment); cf. Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650, 665, 529 N.W.2d 905, 910-911 (1995) (antitrust law).

The federal jury-trial right applies to class actions. Ross v. Bernhard, 396 U.S. 531, 541 (1970) (dictum). This means that the parties to a class-action lawsuit have the right to have all "juriable issues" decided by the same jury. Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir. 1995); see also In re Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990) (questioning, but not deciding, whether defendants in an asbestos class-action case were being deprived of their right to a jury trial in light of the many disparate issues of causation and damage).⁷ There is no authority that we know that would permit a different result under the Wisconsin Constitution. Cf. Reverence v. PFS Corp., 193 Wis. 2d 317, 328-330, 532 N.W.2d 735, 739-740 (1995) (in multiple-party lawsuit that is not brought as a class action, all parties have right to jury trial under Article I, § 5 of Wisconsin Constitution). Clearly, it would be nigh impossible to have one jury decide all issues for each member of the class — such a trial could take years, far beyond the constitution of the most stalwart of our citizens. This may be the reason why the Advisory Committee's note to the 1966 amendment to RULE 23(b)(3) of the Federal Rules of Civil Procedure, which requires a commonality of issues — as does RULE 803.08, Stats. — recognizes that "[a] 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways."

This appeal presents substantial issues involving the defendants' right to a jury trial under the Wisconsin Constitution that have not been briefed or, apparently, considered by the trial court. Accordingly, we remand to the trial court for an evaluation of if and how the jury-trial right found in Article I, § 5 of the Wisconsin Constitution affects certification under Rule 803.08, STATS. The trial court is also to evaluate how our decision that the class may not include those persons who have not complied with § 893.80, STATS., affects whether the class-action procedure remains viable. Until these matters are determined, consideration of the other issues raised by the City and by General Chemical as to whether the criteria for certification have been met is premature.

By the Court. — Order reversed in part, and cause remanded.

1

Rule 803.08, Stats., provides:

Class actions. When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

Prior to the trial court's certification order, the actions were consolidated on the City's motion. See Rule 805.05, STATS.

2

Section 893.80, STATS., provides in full:

Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits.

(1) Except as provided in subs, (lm) and (lp), no action may be brought or maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employe of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:

(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employe under s. 801.11. Failure to give the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant officer, official, agent or employe; and

(b) A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant fire company, corporation, subdivision or agency and the claim is disallowed. Failure of the appropriate body to disallow within 120 days after presentation is a disallowance. Notice of disallowance shall be served on the claimant by registered or certified mail and the receipt therefor, signed by the claimant, or the returned registered letter, shall be proof of service. No action on a claim against any defendant fire company, corporation, subdivision or agency nor against any defendant officer, official, agent or employe, may be brought after 6 months from the date of service of the notice, and the notice shall contain a statement to that effect.

(lm) With regard to a claim to recover damages for medical malpractice, the time period under sub. (1) (a) shall be 180 days after discovery of the injury or the date on which, in the exercise of reasonable diligence, the injury should have been discovered, rather than 120 days after the happening of the event giving rise to the claim.

(Ip) No action may be brought or maintained with regard to a claim to recover damages against any political corporation, governmental subdivision or agency thereof for the negligent inspection of any property, premises, place of employment or construction site for the violation of any statute, rule, ordinance or health and safety code unless the alleged negligent act or omission occurred after November 30, 1976. In any such action, the time period under sub. (1) (a) shall be one year after discovery of the negligent act or omission or the date on which, in the exercise of reasonable diligence the negligent act or omission should have been discovered.

(It) Only one action for property damage may be brought under sub. (Ip) by 2 or more joint tenants of a single-family dwelling.

(2) The claimant may accept payment of a portion of the claim without waiving the right to recover the balance. No interest may be recovered on any portion of a claim after an order is drawn and made available to the claimant. If in an action the claimant recovers a greater sum than was allowed, the claimant shall recover costs, otherwise the defendant shall recover costs.

(3) The amount recoverable by any person for any damages, injuries or death in any action founded on tort against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof and against their officers, officials, agents or employes for acts done in their official capacity or in the course of their agency or employment, whether proceeded against jointly or severally, shall not exceed $50,000, except that the amount recoverable shall not exceed $25,000 in any such action against a volunteer fire company organized under ch. 213 or its officers, officials, agents or employes. If the volunteer fire company is part of a combined fire department, the $25,000 limit still applies to actions against the volunteer fire company or its officers, officials, agents or employes. No punitive damages may be allowed or recoverable in any such action under this subsection.

(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

(5) Except as provided in this subsection, the provisions and limitations of this section shall be exclusive and shall apply to all claims against a volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency or against any officer, official, agent or employe thereof for acts done in an official capacity or the course of his or her agency or employment. When rights or remedies are provided by any other statute against any political corporation, governmental subdivision or agency or any officer, official, agent or employe thereof for injury, damage or death, such statute shall apply and the limitations in sub. (3) shall be inapplicable.

(6) A 1st class city, its officers, officials, agents or employes shall not be liable for any claim for damages to person or property arising out of any act or omission in providing or failing to provide police services upon the interstate freeway system or in or upon any grounds, building or other improvement owned by a county and designated for stadium or airport purposes and appurtenant uses.

(7) No suit may be brought against any city, town or village or any governmental subdivision or agency thereof or against any officer, official, agent or employe of any of those entities who, in good faith, acts or fails to act to provide a notice to a property owner that a public nuisance under s. 823.113 (1) exists.

3

In Elkhorn Area School Dist., notice by the East Troy School District that property for which it received tax revenues was no longer within its taxing jurisdiction but had been transferred to the Elkhorn Area School District, and that subsequent to the property's transfer the East Troy Community School District "unwittingly accepted property tax revenues" to which it was not entitled, did not give the East Troy Community School District "actual knowledge" of the Elkhorn Area School District's claim to the diverted tax revenues. Elkhorn Area School Dist. v. East Troy Community School Dist., 110 Wis. 2d 1, 5-6, 327 N.W.2d 206, 209 (Ct. App. 1982). Cf. Medley v. City of Milwaukee, 969 F.2d 312, 320 (7th Cir. 1992) ("actual notice" requirement of § 893.80(1)(a), STATS., requires that the government entity not only know that a potential claimant might be aggrieved but also the claim for relief); Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 911 (7th Cir. 1985) (filing of lawsuit against village by claimant gave village "actual notice" of claim).

4

The plaintiffs' brief asserts that the City knows: (1) that "[a] definable percentage of the population had been exposed to Cryptosporidium," and (2) that"[approximately 400,000 people, perhaps more, became ill as a result of exposure to Cryptosporidium in the water supply."

5

Section 893.80(1m), STATS., provides:

(1m) With regard to a claim to recover damages for medical malpractice, the time period under sub. (1) (a) shall he 180 days after discovery of the injury or the date on which, in the exercise of reasonable diligence, the injury should have been discovered, rather than 120 days after the happening of the event giving rise to the claim.

6

The legislature's Prefatory Note to the legislation that created § 893.80(1p), Stats., explained the intent of the legislation:

In Coffey v. City of Milwaukee, 74 Wis. 2d 526, 247 N.W.2d 132 (1976), the Wisconsin supreme court first indicated that a municipality could be held liable to injured parties for negligent inspections conducted by municipal employes.

This bill establishes a statute of limitations for tort actions against certain governmental bodies for negligent inspections by providing that such actions must be commenced within one year after the date the negligence was discovered or, in the exercise of reasonable diligence, should have been discovered.

The supreme court, in Coffey, did not specifically rule that potential municipal liability resulting from negligent inspections would apply only to inspections undertaken after the date of the Coffey decision. Therefore, the bill also provides that governmental bodies will not be liable for damages if the negligent inspection occurred on or before November 30, 1976 (the date of the Coffey decision).

PREFATORY Note, 1987 Wis. Act 377, 2 Wisconsin Session Laws at 1347 (1988).

7

But see contra 7B CHARLES A. Wright, ET AL., Federal Pra ctice and Procedure § 1801 at 461 (2d ed. 1994) (citing no authority); Rodriguez v. Banco Central, 790 F.2d 172, 180 (1st Cir. 1986) (adopting in dictum position of Wright, Miller, Marcus treatise); cf. Union Carbide and Carbon Corp. v. Nisley, 300 F.2d 561, 589 (10th Cir. 1961) (permitting special master to determine damages for individual members of class does not violate Seventh Amendment when jury determined liability and liability formulae).