Milw. Constructors v. Milw. Met. Sewer. Dist

27 Citing cases

  1. Garfoot v. Fireman's Fund Insurance Company

    228 Wis. 2d 707 (Wis. Ct. App. 1999)   Cited 65 times   1 Legal Analyses
    In Garfoot, we reaffirmed our holding in Milwaukee ConstructorsII v. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 502 N.W.2d 881 (Ct.App. 1993), that dismissal as a sanction for destruction of evidence requires a determination that there was a conscious attempt to affect the outcome of the litigation or a flagrant knowing disregard of the judicial process.

    After concluding that the actions of Garfoot's attorney, Pamela Lunder, and other agents of Garfoot caused this destruction of evidence at the site, the trial court dismissed two of Garfoot's claims against Mount Horeb Farmer's Cooperative and its insurer, and all claims and cross-claims against Dale Scholl, d/b/a All Temperature Service, and Action Heating and Air Conditioning, Inc.Lunder, Associated Engineers, Inc. (the engineer's firm), and General Heating Air Conditioning, Inc. (the technician's company) appeal. Their primary contention is that the trial court applied an incorrect legal standard for imposing the sanction of dismissal for the destruction of evidence because it did not find the conduct of Lunder or the others was egregious, and it did not find the destruction of evidence gave Garfoot an advantage over opposing parties.We reaffirm our holding inMilwaukee Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 502 N.W.2d 881 (Ct.App. 1993), that dismissal as a sanction for destruction of evidence requires a determination that there was a conscious attempt to affect the outcome of the litigation or a flagrant knowing disregard of the judicial process. We therefore reverse and remand.

  2. Mueller v. Bull's Eye Sport Shop, LLC

    2021 WI App. 34 (Wis. Ct. App. 2021)   Cited 2 times

    SeeInsurance Co. of N. Am. v. Cease Elec. Inc. , 2004 WI App 15, ¶15, 269 Wis. 2d 286, 674 N.W.2d 886. In Milwaukee Constructors II v. Milwaukee Metropolitan Sewerage District , 177 Wis. 2d 523, 502 N.W.2d 881 (Ct. App. 1993), this court adopted a multi-step analytical process for evaluating allegations of evidence destruction, alteration, or loss to determine whether spoliation has occurred and if a sanction should be imposed. Seeid. at 532, 502 N.W.2d 881 (citing and adopting the analytical framework set forth in Struthers Patent Corp. v. Nestle Co. , 558 F. Supp. 747 (D.N.J. 1981) ).

  3. Robbins v. Russ Darrow-Madison, LLC

    No. 2022AP1126 (Wis. Ct. App. Jun. 2, 2023)

    A. Governing Principles and Standard of Review Regarding Spoliation of Evidence and Discretionary Decisions. ¶15 In determining whether spoliation of evidence has occurred and whether a sanction should be imposed, Wisconsin courts apply a "multi-step analytical process." Mueller, 398 Wis.2d 329, ¶19 (citing Milwaukee Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 532, 502 N.W.2d 881 (Ct. App. 1993)).

  4. FOAT v. THE TORRINGTON CO.

    Case No. 96-0625 (Wis. Ct. App. Feb. 3, 1998)

    A response to a request for the imposition of sanctions for the destruction of evidence or the negligent failure to preserve it is a matter subject to the sound discretion of the trial court. SeeSentry Ins. v. Royal Ins. Co., 196 Wis.2d 907, 916, 539 N.W.2d 911, 915 (Ct.App. 1995); MilwaukeeConstructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 529, 502 N.W.2d 881, 883 (Ct.App. 1993). The core issue is not whether this court, as an original matter, would have exercised its discretion in the same manner, but whether the trial court exercised its discretion free of error.

  5. Stough v. Newmar Corp.

    721 N.W.2d 158 (Wis. Ct. App. 2006)

    The evidence and reasonable inferences from it support a finding that, in seeking to repair the slide-out, the Stoughs did not consciously attempt to interfere with Newmar's ability to present its defense. ¶ 20 Contrary to Newmar's assertion, the Stoughs' actions in having the slide-out repaired are not analogous to the plaintiffs' actions in Garfoot v. Fireman's Fund InsuranceCo., 228 Wis. 2d 707, 599 N.W.2d 411 (Ct.App. 1999), Sentry Insurance v. Rural Insurance Co. of NorthAmerica, 196 Wis. 2d 907, 539 N.W.2d 911 (Ct.App. 1995), or Milwaukee Constructors II v. Milwaukee MetropolitanSewerage District, 177 Wis. 2d 523, 502 N.W.2d 881 (Ct.App. 1993). The plaintiffs in these cases destroyed evidence without giving the defendants an opportunity to inspect it. Garfoot, 228 Wis. 2d at 712-13 (plaintiff's agent disconnected joints in the gas piping system alleged to be the source of a leak that caused an explosion before the defendants had inspected it, making it impossible to prove with certainty whether the joints had leaked); Sentry, 196 Wis. 2d at 911-12 (plaintiffs destructively tested and then allowed to be discarded in a landfill the refrigerator they alleged caused the fire that gave rise to the claim); MilwaukeeConstructors II, 177 Wis. 2d at 528-31 (plaintiffs destroyed several hundred boxes of documents that the defendants had not seen but had determined were potentially relevant to the action).

  6. Maurices Incorp. v. Emperor's Kitchen

    Case No. 99-1678 (Wis. Ct. App. Apr. 19, 2000)

    ¶ 7. The trial court also concluded that a finding of egregious conduct on the part of the party destroying the evidence was not a prerequisite to dismissal of a case. The trial court arrived at this conclusion after analyzing two published cases of the court of appeals: Sentry Ins. v. Royal Ins. Co., 196 Wis.2d 907, 539 N.W.2d 911 (Ct.App. 1995), and Milwaukee Constructors IIv. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 502 N.W.2d 881 (Ct.App. 1993). The trial court perceived a conflict between the two cases.

  7. Geneva Nat. Community Ass'n, v. Friedman

    228 Wis. 2d 572 (Wis. Ct. App. 1999)   Cited 10 times

    A trial court's decision to dismiss a cause of action or to strike a pleading as a sanction is discretionary and will not be disturbed unless the party claiming to be aggrieved by the decision establishes that the trial court has erroneously exercised its discretion. See Milwaukee Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 529, 502 N.W.2d 881, 883 (Ct.App. 1993). A discretionary decision will be upheld if the trial court has examined the relevant facts, applied a proper standard of law, and, utilizing a demonstrated rational process, reached a conclusion that a reasonable judge could reach.

  8. Sentry Ins. v. Royal Ins. Co.

    196 Wis. 2d 907 (Wis. Ct. App. 1995)   Cited 30 times
    Upholding trial court's exclusion of evidence related to refrigerator where party's expert intentionally removed components, thereby precluding testing by opposing party

    Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 470, 326 N.W.2d 727, 732 (1982). As long as the court's discretion represents a proper application of the law and is a determination that a reasonable judge could have reached, it must be affirmed on appeal even if the decision is one that would not have been made by the reviewing court. Milwaukee Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 529-30, 502 N.W.2d 881, 883 (Ct.App. 1993). Section 801.15(2)(a), STATS., provides:

  9. Am. Family Mut. Ins. Co. v. Golke

    2009 WI 81 (Wis. 2009)   Cited 42 times
    Holding that a custodial party with a legitimate need to destroy evidence may do so after giving reasonable notice to the noncustodial party

    The decision to impose sanctions for improper spoliation of relevant evidence is generally within the trial court's discretion. Milwaukee Constructors II v. Milwaukee Metro. Sewerage Dist., Ill Wis. 2d 523, 529, 502 N.W.2d 881 (Ct.App. 1993) (reversing the trial court's sanction of dismissal because the party's destruction of stored archived documents in the course of a cost-cutting initiative did not constitute egregious behavior). There has been some dispute, however, regarding when the sanction of dismissal is appropriate.

  10. Cody v. Target Corp.

    2013 WI App. 94 (Wis. Ct. App. 2013)   1 Legal Analyses

    The authority on which both Cody and Target rely actually holds that “dismissal is a sanction that should rarely be granted and is appropriate only in cases of ‘egregious conduct.’ ” Milwaukee Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis.2d 523, 533, 502 N.W.2d 881 (Ct.App.1993). Since this case does not involve dismissal, Milwaukee Constructors II is neither controlling nor persuasive authority for the proposition that any sanction more severe than a discovery sanction requires a finding of “egregious conduct.”