author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kevin J. Van Riper, Defendant-Appellant.
    Court of Appeals

      No. 03-0385-CR.

      Submitted on briefs September 10, 2003.—

      Decided October 1, 2003.

    2003 WI App 237
    (Also reported in 672 N.W.2d 156.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Anthony L. O'Malley of Zacherl, O'Malley & Endejan, S.C., of Fond du Lac.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joan C. Aguado, assistant district attorney, Winnebago county.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.
   NETTESHEIM, J.

¶ 1. Kevin J. Van Riper appeals his conviction for operating with a prohibited alcohol concentration (PAC) of 0.08, as a third offense, contrary to Wis. Stat. § 346.63(l)(b) (2001-02). Van Riper contends that the State's submission of his certified Department of Transportation (DOT) driving transcript was inadmissible evidence and, in any event, was insufficient to establish his repeater status as an element of the offense beyond a reasonable doubt. Van Riper requests this court to remand for sentencing as a PAC, first offense.

¶ 2. We hold that Van Riper's DOT certified driving transcript was admissible evidence and that the transcript established Van Riper's repeater status as an element of the PAC offense beyond a reasonable doubt. We therefore affirm Van Riper's conviction, but we remand with directions that the trial court enter an amended judgment to reflect that Van Riper's conviction is for PAC, not operating while intoxicated (OWI).

FACTS

¶ 3. Following his arrest for OWI and PAC on April 7, 2002, the State filed a criminal complaint against Van Riper alleging a third offense OWI and third offense PAC. The complaint included a DOT driving record abstract indicating two prior OWI convictions against Van Riper.

¶ 4. Prior to trial, Van Riper stipulated that he had operated the vehicle and that he had an alcohol content in excess of .08 at the time of such operation contrary to Wis. Stat. § 340.01(46m)(b), which sets the prohibited alcohol content for a third-time offender at "0.08 or more." However, Van Riper contested the remaining element of the offense — the alleged two prior OWI convictions. The parties agreed that this remaining element would be tried to the court.

¶ 5. At the ensuing trial, the State filed a certified DOT transcript of Van Riper's driving record, which reflected a November 1989 OWI conviction in Minnesota and an October 1993 OWI conviction in Wisconsin. The issue at the trial was whether the certified DOT transcript was admissible evidence and, if so, whether it sufficed to prove Van Riper's repeater status beyond a reasonable doubt. The trial court received the certified DOT driving record as evidence at the trial and further ruled that it established Van Riper's status as a repeat offender beyond a reasonable doubt. Van Riper appeals from the ensuing judgment of conviction.

DISCUSSION

¶ 6. Van Riper was convicted of operating a motor vehicle with a PAC of greater than .08 contrary to Wis. Stat. § 346.63(l)(b). Pursuant to Wis. Stat. § 340.01(46m)(a) and (b), "prohibited alcohol concentration" means an alcohol concentration of 0.1 or more if a person has one or no prior convictions as counted under Wis. Stat. § 343.307(1) or an alcohol concentration of 0.08 if, like Van Riper, a person has two prior convictions as counted under § 343.307. Thus, the crime of PAC — .08 has three elements: (1) the defendant drove or operated a motor vehicle on a highway, (2) the defendant had a PAC at the time he or she drove or operated the motor vehicle, and (3) the defendant had two or more convictions, suspensions or revocations as counted under § 343.307(1) at the time the defendant drove or operated the motor vehicle. Wis JI — Criminal 2660B.

¶ 7. Here, Van Riper stipulated to the first and second elements of the offense, but contested the third element — his alleged prior convictions. Van Riper contends that the trial court erred by: (1) admitting the certified DOT transcript of his driving record into evidence; and (2) by holding that such evidence satisfied the State's burden to establish his repeater status beyond a reasonable doubt. Both issues present questions of first impression.

¶ 8. Generally, the admissibility of evidence is a matter within the trial court's discretion. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). Consequently, a trial court's evidentiary ruling will not be upset on appeal if the court had "a reasonable basis" and it was made "in accordance with accepted legal standards and in accordance with the facts of record." Id. (citations omitted).

¶ 9. The State relies on our supreme court's decisions in State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), and State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), in support of its contention that a certified DOT driving record is admissible evidence and competent proof of a defendant's prior convictions. In both cases, the defendants challenged the evidence offered in support of their prior convictions to support the application of a penalty enhancer at sentencing. Wideman, 206 Wis. 2d at 94-95; Spaeth, 206 Wis. 2d at 142-43. We address each case in turn.

¶ 10. Wideman was charged with OWI, third offense. At the sentencing, Wideman's defense counsel stated that "the 'state of the record' indicated that this was a third conviction on the offense of operating while intoxicated." Wideman, 206 Wis. 2d at 97. The trial court accepted this statement as sufficient proof of Wideman's prior convictions. Wideman later sought to vacate the enhanced penalty, arguing that the conviction should be reduced to a civil forfeiture. Id. at 97 n.7. Wideman contended that his counsel's statement was inadequate to support a finding that he had two prior offenses within the previous five years. Id. at 97. Because Wis. Stat. § 346.65(2), the OWI penalty enhancer, did not address the means by which the State is to establish prior offenses at sentencing, Wideman argued that the requirements for establishing prior offenses as set forth in Wis. Stat. § 973.12(1) of the criminal code applied to the penalty enhancement provisions of § 346.65(2). Wideman, 206 Wis. 2d at 98-99.

¶ 11. The supreme court rejected Wideman's argument, stating:

We conclude that the difference between the two statutes rests upon a rational basis. The nature of OWI offenses and the penalties under [Wis. Stat.] § 346.65(2) justify the legislature's imposing on the State different proof requirements than those prescribed by [Wis. Stat.] § 973.12(1). Large numbers of OWI offenses are prosecuted. Moreover, in contrast with § 973.12(1), the enhanced penalties under § 346.65(2) are penalties for misdemeanors, with relatively short periods of incarceration and moderate fines. The efficient administration of the justice system militates in favor of the legislature's choice not to require the same method of establishing repeat offenses under § 346.65(2) as under § 973.12(1).

Wideman, 206 Wis. 2d at 106-07. Assuming that defense counsel had adequately investigated the defendant's driving record, the court concluded, "Allowing the accused's counsel to respond about a prior offense adequately protects an accused's due process right to a sentence based on legitimate considerations." Id. at 106. The court also instructed that if the allegations of prior convictions are incorrect or cannot be verified by defense counsel, "The State should be prepared at sentencing to establish the prior offenses by appropriate official records or other competent proof." Id. at 108.

¶ 12. Spaeth, released the same day as Wideman, .was an operating after revocation (OAR) case, not an OWI case. There, the supreme court held: "[T]he State establishes the existence of a defendant's prior OAR convictions by competent proof when, at a minimum, it introduces into the record at any time prior to the imposition of sentence, either: (1) an admission; (2) copies of prior judgments of conviction for OAR; or (3) a teletype of the defendant's [DOT] driving record." Spaeth, 206 Wis. 2d at 153.

¶ 13. Thus, the cumulative effect of Wideman and Spaeth is as follows: (1) the proof requirements of Wis. Stat. § 973.12(1), the repeater statute in the criminal code, do not apply in OWI prosecutions (Wideman); and (2) a DOT teletype is competent proof of a defendant's prior convictions {Spaeth).

¶ 14. Van Riper distinguishes Wideman and Spa-eth because they addressed the proof of penalty enhancement convictions at sentencing, whereas the instant case concerns proof of prior convictions at trial as an element of the substantive offense to prove a defendant's repeater status. While we appreciate the distinction, we nevertheless deem the cases instructive and persuasive.

¶ 15. In State v. Saunders, 2002 WI107, ¶ 49, 255 Wis. 2d 589, 649 N.W.2d 263, the supreme court observed that "proof of prior convictions directly affects the sentence a criminal defendant may receive, and thus affects a major liberty interest." Both Wideman and Spaeth involved the liberty interests of the defendants. Were it not for the penalty enhancers, which rested on proof of prior convictions, neither defendant would have been subjected to jail confinement. Spaeth, 206 Wis. 2d at 143 & n.4; Wideman, 206 Wis. 2d at 97 & n.7. Despite the distinction between the trial and sentencing phases of a criminal proceeding involving a repeat offender, it makes no sense to deem the liberty interests of one category of offenders greater or lesser than the other by prescribing a differing form of evidence sufficient to prove a prior conviction. In both situations, the end result is an enhanced penalty calling for confinement based upon a prior conviction or convictions. From that, it logically follows that the proof requirements in both settings should be the same.

¶ 16. If, pursuant to Spaeth, a teletype of a defendant's DOT driving record is admissible and sufficient evidence of prior offenses for purposes of penalty enhancement in a sentencing proceeding, then certainly a certified DOT driving record is admissible and sufficient to prove the status of an alleged repeat offender in a PAC prosecution.

¶ 17. Contrary to Van Riper's assertions, our holding is consistent with the Wisconsin rules of evidence. In State v. Leis, 134 Wis. 2d 441, 443, 445-46, 397 N.W.2d 498 (Ct. App. 1986), we held that a certified driving record was admissible and competent evidence of a prior revocation as an element of the charged offense in an operating after revocation prosecution. We noted that a defendant's driving record is a public record and is admissible as an exception to the hearsay rule pursuant to Wis. Stat. § 908.03(8), as a record which the DOT is required to maintain for each motor vehicle licensee pursuant to Wis. Stat. § 343.23(2) and (3) and Wis. Stat. § 343.24(1). Lets, 134 Wis. 2d at 445. We further noted that "[a] record is authenticated by a certificate which properly and sufficiently identifies the record to which it is attached" and further, that a defendant's driving record is self-authenticating by virtue of a certificate attached to the record bearing the State of Wisconsin DOT seal and a signature of the Administrator of the Division of Motor Vehicles (DMV) attesting to the record's authenticity. Id. at 445-46.

¶ 18. Here, a certificate bearing the State of Wisconsin DOT seal and the signature of the DMV administrator accompanies Van Riper's DOT driving record. Both Wisconsin case law and statutes support the admission of this certified document as proof of Van Riper's prior convictions at trial.

¶ 19. That one of Van Riper's convictions occurred in Minnesota does not change our decision. Pursuant to Wis. Stat. § 343.23(2)(b), the DOT must maintain a record of all "suspensions, revocations, and convictions that would be counted under s. 343.307(2)," the statute which is used "to determine the prohibited alcohol concentration under s. 340.01(46m)." Pursuant to Wis. Stat. § 343.307(2)(e), a court must consider the following when determining the prohibited alcohol concentration:

Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof, or with' an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws. (Emphasis added.)

¶ 20. The certified DOT transcript recites that Van Riper was convicted of "operating under influence" in Minnesota with a violation date of "11/21/89." Wisconsin's drunk driving statute, Wis. Stat. § 346.63, is entitled "Operating under influence of intoxicant or other drug." A subset of this statute, and one means of violating this statute, is operating a motor vehicle with a prohibited alcohol concentration. Sec. 346.63(l)(b). From this information, the trial court could reasonably conclude that the Minnesota laws governing drunk driving were substantially similar to Wisconsin's OWI laws.

CONCLUSION

¶ 21. We conclude that the trial court properly exercised its discretion when it admitted Van Riper's certified DOT driving record as evidence and that such evidence established Van Riper's repeater status as an element of the offense beyond a reasonable doubt. We therefore affirm Van Riper's conviction for PAC, third offense, and remand for entry of an amended judgment to reflect such conviction.

By the Court. — Judgment affirmed and cause remanded with directions.

       This appeal was originally a one-judge appeal; it was converted to a three-judge panel by order of the Chief Judge of the Court of Appeals. Wis. Stat. Rule 809.41(3) (2001-02). All references to the Wisconsin Statutes are to the 2001-02 version.

       The judgment of conviction and a later judgment which stayed Van Riper's sentence pending appeal state Van Riper's conviction as operating while intoxicated (OWI), third offense, contrary to Wis. Stat. § 346.63(l)(a). However, the record reflects that the State dismissed the OWI charge when Van Riper admitted to the PAC charge while reserving his right to challenge the prior convictions. Moreover, the issues argued on appeal pertain to a conviction for PAC. On remand, we direct the trial court to enter an amended judgment to reflect a conviction for PAC as a third offense.

       WisConsin Stat. §973.12(1) provides that the defendant may be sentenced as a repeater if the prior convictions are "admitted by the defendant or proved by the state." The statute also provides that "[a]n official report of the F.B.I. or any other governmental agency of the United States or of this state or any other state shall be prima facie evidence of any conviction or sentence therein reported." Id.

       We note that Section II of the Introductory Comments to Wis JI — CRIMINAL 2660-2665 addresses many of the issues concerning the PAC statute and varying PAC levels. Relevant to this appeal, the Committee specifically addressed "Practical Problems with Submitting Prior Offenses as an Element" in a PAC — .08 trial when a defendant fails to admit to them. Wis JI — CRIMINAL 2660-2665, Introductory Comment at 5-6. In noting that the statutory requirement of counting offenses under Wis. Stat. § 343.307(1) would be "too technical to submit to a jury," the Committee notes its assumption that "evidence will be presented that the person's driving record shows the requisite number of prior offenses 'as counted under § 343.307(1).'" Introductory Comment at 7. This assumption by the Committee lends additional support to our conclusion that a certified DOT driving record is sufficient evidence of the status element of prior offenses at a PAC — .08 trial.

       Wisconsin Stat. § 908.03 governs hearsay exceptions; it provides in relevant part:
      (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law, or (c) in civil cases and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

       The parties also cite to Wis. Stat. § 343.24 in support of their respective arguments for and against the admissibility of Van Riper's DOT driving transcript. Generally, this statute (1) addresses the DOT's duty to furnish a driver's transcript upon request; (2) sets the fees which the DOT shall charge for furnishing such transcripts; (3) sets the limitations on the furnishing of certain information; (4) prohibits the DOT from revealing personal identifier information about a person requesting a transcript in certain situations; and (5) sets out penalties for the improper revelation of personal identifier information.
      We do not find Wis. Stat. § 343.24 helpful on the question before us. The only provision of this statute that carries an evidentiary effect is the bar against using a DOT transcript in "any action for damages arising out of a motor vehicle accident." Sec. 343.24(1). That provision obviously does not apply in this case. While that language might suggest that a DOT transcript is admissible in all other proceedings, we conclude that the transcript would still have to pass muster under the rules of evidence. As our analysis has revealed, Van Riper's transcript survives this process.

       As the trial court correctly observed, the Wisconsin courts have previously found Minnesota's OWI laws to be in conformity with those of Wisconsin. See State v. White, 177 Wis. 2d 121, 124, 501 N.W.2d 463 (Ct. App. 1993).

        See supra note 1.


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Marvin J. Moss, Defendant-Appellant.

    Court of Appeals

      No. 03-0436-CR.

      Submitted on briefs August 22, 2003.—

      Decided October 1, 2003.

    2003 WI App 239
    (Also reported in 672 N.W.2d 125.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of F.M. Van Hecke of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Daniel J. O'Brien, assistant attorney general.
    Before Anderson, EJ., Brown and Nettesheim, JJ.

       Petition to review denied 12-16-03.

   NETTESHEIM, J.

¶ 1. Marvin J. Moss appeals from a judgment of conviction for second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2) (2001-02). Moss pled no contest to the charge after the trial court denied his motion to suppress an incriminating statement he gave to the Ozaukee County Social Services Department. In the statement, Moss admitted to having sexual contact with a fifteen-year-old girl, C.S. Moss argued that his statement was coerced by his pastoral counselor, who told Moss that he would report the incident if Moss did not self-report the matter.

¶ 2. The issue in this case is whether a defendant's incriminating statement improperly coerced by a person who is not a state agent offends constitutional due process,such that the statement is inadmissible. We conclude that there is no due process violation where, as in this case, a private citizen coerces a confession from another private citizen and there is no state action or state nexus. We uphold the trial court's order denying Moss's motion to suppress and affirm the judgment.

FACTS

¶ 3. On September 14, 2001, the State filed a criminal complaint against Moss alleging that he had sexual contact with a child under the age of sixteen contrary to Wis. Stat. § 948.02(2). The probable cause portion of the complaint was based on the following recitals of Detective David G. Guss. On August 29, 2601, Moss contacted the Ozaukee County Social Services Department and reported that he was a pastor at a Lutheran church in the village of Grafton and that on August 3, 2001, he was counseling C.S., a fifteen-year-old member of the congregation, at her home regarding the recent death of her mother. Moss reported that during that visit, he consoled C.S. as she cried, "held her hand and hugged her. . . [and] then began to intentionally touch her breasts." On August 30, 2001, Guss spoke with C.S. who told him that approximately three weeks prior Moss visited her at her home for a conversation regarding her well-being and that during the visit Moss "began to touch her breasts and vagina over her clothing and that she began to touch his penis over his clothing."

¶ 4. Following a preliminary hearing, Moss was bound over for trial. On October 16, 2001, the State filed an information alleging the same charge alleged in the complaint — second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2).

¶ 5. On January 17, 2002, Moss filed a motion to suppress his statements given to the social services agency and all evidence stemming from those statements on grounds that the statements were involuntary and coerced. In support of his motion, Moss supplied his affidavit stating that approximately one week after the incident with C.S. he sought spiritual counseling and absolution and asked Pastor Will Reichmann if he could recommend a confidential counseling source. Reichmann recommended that Moss contact Steven Fringer at the Pastoral Counselling Center. Moss did so. At their first meeting, Fringer told Moss that he was a psychologist and minister. According to Moss, Fringer invited him to confess the facts of the incident "in hopes of both spiritual and emotional/mental healing with counseling." Moss did so, believing that his statements to Fringer were confidential and privileged.

¶ 6. At their second meeting, Fringer advised Moss that he was a mandatory reporter and therefore compelled under state law to report Moss's confidences to legal authorities. Fringer urged Moss to self-report and that if Moss would not, then Fringer would do so. Fringer provided Moss with the telephone number of the social services agency and told Moss to place the call from his office. Moss "felt he had been trapped" and was led to believe that "he had no option to minimize the damage to himself and others other than to so report." As a result, Moss self-reported the incident.

¶ 7. On June 18, 2002, the trial court issued a bench decision denying Moss's motion to suppress. The trial court identified the issue as "whether coercive conduct of a private person is sufficient to render a confession inadmissible under the Wisconsin Constitution." The trial court determined that absent any kind of police or governmental involvement, it is not. On September 6, 2002, Moss entered a no contest plea and was subsequently convicted and sentenced to eighteen months in prison and eight years and six months of extended supervision.

¶ 8. Moss appeals.

DISCUSSION

¶ 9. We begin with a number of observations which narrow the issue before us. First, Moss states his issue as follows: "whether a statement illegally coerced by a person not a state agent and evidence derived solely by virtue of that statement not otherwise likely to be discovered offends the Due Process Clause of the United States Constitution . . . and the equivalent provisions of the Constitution of the State of Wisconsin." Thus, the issue is solely constitutional and does not raise any potential claim that the statement was inadmissible under the Wisconsin rules of evidence.

¶ 10. Second, Moss concedes that Fringer acted solely in a private capacity and that he was not a state agent.

¶ 11. Third, both the State and Moss concede that Fringer was not a mandatory reporter pursuant to Wis. Stat. § 48.981(2).

¶ 12. Fourth, we agree with Moss that Fringer's actions amounted to coercion. There is no indication that Moss ever would have reported the incident with C.S. absent Fringer's threats to report.

¶ 13. Nonetheless, the law is clear that a statement is not involuntary, in violation of a person's Fourteenth Amendment rights, unless it has been obtained by coercive police activity. State v. Hoppe, 2003 WI 43, ¶¶ 36-37, 261 Wis. 2d 294, 661 N.W.2d 407 (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986), for the proposition that "[c]oercive or improper police conduct is a necessary prerequisite for a finding of involuntariness"); see also State v. Clappes, 136 Wis. 2d 222, 235-36, 239-41, 401 N.W.2d 759 (1987).

¶ 14. Moss relies on a Colorado Supreme Court case, State v. Hunter, 655 P.2d 374, 376 (Colo. 1982), for the proposition that although "no state action is involved in the accused's making an admission of guilt to a private citizen[,] [s]tate action enters the picture, however, when a trial court permits the prosecution at a jury trial to utilize as evidence of guilt a confession which is extracted under circumstances that so overbear the individual's will as to render the statement involuntary . . . ."

¶ 15. However, the United States Supreme Court expressly rejected Colorado's approach in Connelly. There, the supreme court considered whether the pre-custodial, pre-Miranda confession of a mentally ill person, made absent any police misconduct, was involuntary in violation of the Due Process Clause of the Fourteenth Amendment. Connelly, 479 U.S. at 159-61. In that case, Connelly had approached a police officer on the street and, without prompting, stated that he had murdered someone and wanted to talk about it. Id. at 160. Connelly later stated that "voices" had told him to confess and it was determined that he suffered from chronic schizophrenia and was in a psychotic state at least one day before he confessed. Id. at 161.

¶ 16. Despite finding that the police had done nothing wrong or coercive in securing Connelly's confession, the Colorado trial court found that the statements were involuntary because Connelly's mental illness destroyed his volition and compelled him to confess. Id. at 162. The Colorado Supreme Court affirmed, finding in part that "the very admission of the evidence in a court of law was sufficient state action to implicate the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Id.

¶ 17. In reversing the decision of the Colorado Supreme Court, the United States Supreme Court turned to the language of the Due Process Clause. "The Due Process Clause of the Fourteenth Amendment provides that no State shall 'deprive any person of life, liberty, or property, without due process of law.'" Id. at 163. Examining past confession cases decided by the Court, it concluded that "[ajbsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law." Id. at 164.

¶ 18. The Court went on to state two principles important to this case: (1) "[o]ur 'involuntary confession' jurisprudence is entirely consistent with settled law requiring some sort of 'state action' to support a claim of violation of the Due Process Clause of the Fourteenth Amendment"; and (2) "[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause." Id. at 165-66. The Court expressly rejected the Colorado approach because "it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other." Id. at 165.

¶ 19. Based on the Supreme Court's language in Connelly and the reliance on that language by Wisconsin courts, we must reject Moss's invitation to find his statement inadmissible on grounds of due process regardless of the absence of state action. While this is the first case in Wisconsin involving the coercion of a confession completely absent of any state involvement, there is no question that Connelly extends to such a situation.

¶ 20. In reaching our decision, we acknowledge Moss's reliance on a Hawaii Supreme Court case, State v. Bowe, 881 P.2d 538, 542 (Haw. 1994), which states, "[A]dmitting coerced confessions, no matter who coerced them, is fundamentally unfair." The decision also cites to law review articles criticizing the Connelly holding. We are also mindful of the dissent in Connelly which complains that the Court's decision "restricts the application of the term 'involuntary' to those confessions obtained by police coercion. Confessions by mentally ill individuals or persons coerced by parties other than police officers are now considered 'voluntary'" and that "[t]he Court's failure to recognize all forms of involuntariness or coercion as antithetical to due process reflects a refusal to acknowledge free will as a value of constitutional consequence." Connelly, 479 U.S. at 176 (Brennan & Marshall, JJ., dissenting). However, we are bound by the decisions of the United States Supreme Court on matters of federal law. State v. Jennings, 2002 WI 44, ¶ 18, 252 Wis. 2d 228, 647 N.W.2d 142.

¶ 21. Our rejection of Moss's constitutional due process claim does not render statements such as these automatically admissible. Rather, as the Connelly Court recognized, the Constitution leaves "sweeping inquiries into the state of mind of a defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State" to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. Connelly, 479 U.S. at 166-67. Thus, "[a] statement rendered by one in the condition of [Connelly] might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, and not by the Due Process Clause of the Fourteenth Amendment." Id. at 167 (citation omitted). Therefore, given the coercive effect of Fringer's actions, Moss could have availed himself of Wisconsin's rules of evidence to challenge the reliability of his statement. See, e.g., Boyer v. State, 91 Wis. 2d 647, 662, 284 N.W.2d 30 (1979) (a trial court has the authority to exclude a statement pursuant to Wis. Stat. § 904.03 where the statement is "so unreliable that its probative value is substantially outweighed by the danger of prejudice and confusion").

CONCLUSION

¶ 22. We conclude that the coercive conduct of a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible under the Due Process Clause of the United States Constitution and the equivalent provisions of the Wisconsin Constitution. We therefore conclude that the trial court properly denied Moss's motion to suppress. We affirm the judgment.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version.

       WISCONSIN Stat. § 48.981 is Wisconsin's mandatory child abuse reporting statute. Section 48.981(2) identifies those persons who are "mandatory reporters."

       The transcript of the hearing on Moss's motion to suppress does not indicate that the parties offered any testimony at this proceeding. Instead, after the parties stated their appearances, the trial court immediately proceeded to render its bench decision based upon the briefs previously filed by the parties. Therefore, the only evidentiary material before the trial court was the affidavit Moss provided with his motion to suppress.

       We therefore do not address the State's arguments that Fringer was not a state actor.

       Fringer does not qualify as a mandatory reporter under any of the categories set out in Wis. Stat. § 48.981(2)(a). As such, he falls into the "catchall" category of persons who "may" report suspected child abuse pursuant to para. (2)(c).

       In making this determination, we considered the definition of coercion applied in cases involving state action. In State v. Clappes, 136 Wis. 2d 222, 235-36, 401 N.W.2d 759 (1987), the court stated that "[t]he presence or absence of actual coercion or improper police practices is the focus of the inquiry because it is determinative on the issue of whether the inculpatory statement was the product of a 'free and unconstrained will, reflecting deliberateness of choice'" (Emphasis added.)

         Miranda v. Arizona, 384 U.S. 436 (1966).

        See, e.g., Clappes, 136 Wis. 2d at 235-36, 239-41; State v. Hoppe, 2003 WI 43, ¶¶ 36-37, 261 Wis. 2d 294, 661 N.W.2d 407; State v. Harris, 189 Wis. 2d 162, 173, 525 N.W.2d 334 (Ct. App. 1994), aff'd, 199 Wis. 2d 227, 554 N.W.2d 545 (1996); State v. Deets, 187 Wis. 2d 630, 635, 523 N.W.2d 180 (Ct. App. 1994) (citing to Colorado v. Connelly, 479 U.S. 157, 167 (1986), for the proposition, "[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment.").

       We note that in State v. Kunkel, 137 Wis. 2d 172, 192, 404 N.W.2d 69 (Ct. App. 1987), released shortly after the United States Supreme Court decision in Connelly, we declined to find involuntariness when the defendant confessed to a priest outside the presence of police officers. Although the police had suggested that the defendant speak to a priest, the court found no evidence of coercion given that the police had not asked the priest for assistance. Kunkel, 137 Wis. 2d at 179,192. The court cited to Connelly for the proposition that "[f]or purposes of due process analysis under the fifth and fourteenth amendments, involuntariness requires police coercion." Kunkel, 137 Wis. 2d at 179, 192.


author: BROWN, J. NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Jacob J. Faust, Defendant-Respondent.
    Court of Appeals

      No. 03-0952-CR.

      Submitted, on briefs June 16, 2003.—

      Decided October 1, 2003.

    2003 WI App 243
    (Also reported in 672 N.W.2d 97.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Mary T. Wagner, assistant district attorney.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Stephen M. Seymour of Sheboygan.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review granted 12-16-03.

   BROWN, J.

¶ 1. The question here is whether exigent circumstances still exist for a nonconsensual and warrantless blood draw even after the State has already obtained a voluntary chemical breath test producing a valid sample. In State v. Krajewski, 2002 WI 97, ¶ 1, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089 (2002), our supreme court undertook the task of determining the parameters by which law enforcement could conduct a warrantless and nonconsen-sual blood draw in the context of an arrest for operating a motor vehicle while intoxicated pursuant to the exigent circumstances exception to the Fourth Amendment. Our supreme court instructed that "[t]he exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken." Id., ¶ 40. We are bound by this statement. Accordingly, we hold that once an individual arrested on probable cause for OWI has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exist. We therefore affirm the circuit court's order granting Jacob J. Faust's motion to suppress the results of the blood test.

¶ 2. The facts are undisputed. On February 19, 2002, Sheboygan police officer James Olsen conducted a traffic stop in the city of Sheboygan. Prior to the stop, Olsen had observed that the license plate displayed on the car Faust was driving was registered to a 1988 Chevrolet Coupe, but was in fact attached to an Audi Coupe. Upon pulling the vehicle over and identifying the driver of the vehicle as Faust, Olsen noted a strong odor of intoxicants emanating from the vehicle and that Faust's speech was slurred and his eyes bloodshot and glassy. Olsen asked Faust how much he had to drink before driving and Faust admitted to downing "five brandies." After Faust failed field sobriety tests, Olsen administered a preliminary breath test which returned a result of a .13 g/100 ml blood alcohol content.

¶ 3. Olsen then transported Faust to the She-boygan police department, where he agreed to provide a sample of his breath for chemical analysis. The breath test reflected a blood alcohol content of .09 grams of alcohol per 210 liters of breath, which is .01 above the prohibited alcohol concentration (.08) pertinent to Faust as a third offender pursuant to Wis. Stat. § 885.235(lg)(cd) (2001-02). Although Olsen was aware that Faust was therefore operating with a prohibited blood alcohol level given his two prior convictions, he advised Faust that he would seek a blood test as well. Olsen then read Faust an Informing the Accused form. Faust refused to consent to the blood test, and a forced blood sample was subsequently drawn from him at the hospital. The blood sample ultimately reflected a blood alcohol level of .10 g/100 ml of blood.

¶ 4. On October 16, 2002, Faust filed a motion to suppress the blood test results, arguing that since the breath test had already established that his blood alcohol exceeded the prohibited legal limit, there was no longer any exigency justifying a blood draw without a warrant. At the first motion hearing, Faust conceded that for the purposes of the hearing he was not challenging that the officer had probable cause to stop or arrest him. After a second motion hearing, the circuit court granted Faust's motion to suppress the blood test results, reasoning that "exigent circumstances did not exist to justify the warrantless taking of Faust's blood and . .. the blood test was taken outside of statutory parameters." This appeal followed.

¶ 5. For purposes of this appeal, there are no genuine issues of material fact. We are presented with the question of whether a forced blood draw meets the exigent circumstances exception to the warrant requirement of the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution when a valid breath test has already been taken. This is a question of law that we review de novo. State v. Bohling, 173 Wis. 2d 529, 533, 494 N.W.2d 399 (1993).

¶ 6. As we stated at the outset, our holding in this case is based upon Krajewski. Nonetheless, to better understand how the analysis conducted in Krajewski controls the outcome in this case, we will, as did the court in Krajewski, provide some background about the exigency exception to the warrant requirement of the Fourth Amendment and its relationship to Wisconsin's implied consent statute.

¶ 7. Both the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution establish the right of persons to be secure from unreasonable searches. Consequently, this court interprets the two constitutional provisions in concert. Krajewski, 255 Wis. 2d 98, ¶ 18 n.9. Searches conducted without a warrant are deemed per se unreasonable unless they fall within one of "a few specifically established and well delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); see also State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990). Two of the carefully delineated exceptions to the warrant requirement are consent searches and searches based on exigent circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Schmerber v. California, 384 U.S. 757, 770-71 (1966). A well-recognized exigent circumstance is the threat that evidence will be lost or destroyed if time is taken to obtain a warrant. Bohling, 173 Wis. 2d at 537-38.

¶ 8. A warrantless blood draw from a person arrested for driving while intoxicated is permissible under the exigent circumstances exception to the Fourth Amendment's warrant requirement. Schmerber, 384 U.S. at 771-72. The exigency upon which a war-rantless blood draw is premised is the dissipation of alcohol in the bloodstream. Krajewski, 255 Wis. 2d 98, ¶ 37. In order for the dissipation of alcohol from an individual's bloodstream to constitute sufficient exigency: (1) the blood draw must be taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime; (2) there must be a clear indication that the blood draw will produce evidence of intoxication; (3) the method used to take the blood sample must be a reasonable one and performed in a reasonable manner; and (4) the arrestee must present no reasonable objection to the blood draw. Bohling, 173 Wis. 2d at 534.

¶ 9. Wisconsin has enacted an implied consent statute for motor vehicle operators, Wis. Stat. § 343.305. A person who operates a motor vehicle in this state is deemed to have given consent to one or more tests of his or her blood, breath, or urine upon the request of a law enforcement officer if the person is arrested for a drunk driving offense. Sec. 343.305(2). Pursuant to § 343.305(3)(a), a law enforcement officer may request that a person arrested for an OWI provide one or more samples of the person's blood, breath, or urine for testing.

¶ 10. Here, for the purposes of this appeal, neither party questions that pursuant to Wisconsin's Implied Consent Law, a law enforcement officer, having obtained a voluntary sample of breath, blood, or urine for chemical testing, may request that the driver give a second, different sample for testing. Rather, the specific issue we address is: if the driver then refuses the officer's request for the second, different sample, whether the warrantless and nonconsensual extraction and testing of the driver's blood for evidence is still legally valid under the exigent circumstances exception to the Fourth Amendment. Stated another way, we decide whether the exigent circumstances justifying a warrantless blood draw are automatically extinguished after a law enforcement officer has already obtained a valid, voluntary breath test. As we mentioned earlier, Krajewski is the starting point of our analysis of this issue.

¶ 11. There, Krajewski was arrested on probable cause for OWI. Krajewski, 255 Wis. 2d 98, ¶¶ 1, 7. When asked to submit to a blood test, Krajewski refused, citing a fear of needles. Id., ¶ 9. Krajewski instead offered to provide a breath or urine sample. Id. Krajewski was then forced to submit to a blood draw. Id., ¶ 12. On appeal, Krajewski acknowledged that the rapid dissipation of alcohol in a person's bloodstream creates an exigency justifying a forcible blood draw when a person refuses to submit to any chemical test, but argued that once the person offers to submit to an alternative chemical test, the exigency disappears and the officer may not proceed with an involuntary test without a search warrant. Id., ¶ 34.

¶ 12. Our supreme court rejected this argument and held that a person's agreement to submit to a test of the person's choice does not negate the exigency created by the dissipation of alcohol in the bloodstream, nor does it render unconstitutional a nonconsensual test of the officer's choice. Id., ¶ 63. The court explained that an arrested person's offer to submit to one chemical test rather than another does not slow the dissipation of alcohol. Id., ¶ 37. According to the court, "[t]he evidence remains on a course to be destroyed." Id. The court reasoned that the arrested person could fail to give a sufficient breath specimen and/or have a change of heart and refuse altogether to submit to the test. Id., ¶ 38. The court also noted that securing a breath test rather than a blood test may not be satisfactory to law enforcement because an officer may want to determine whether the person is also under the influence of controlled substances and a breath test is not likely to reveal the presence of a controlled substance. Id., ¶ 40. Thus, the court concluded that "[t]he exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken." Id.

¶ 13. It is this last statement by the court that the parties ask us to clarify. It is the State's position that the exigency created by the dissipation of alcohol from the bloodstream of a person lawfully arrested for drunk driving does not automatically disappear when a single valid chemical test for intoxication has been performed. The State argues that the exigency justifying a war-rantless blood draw following a valid drunk driving arrest is based on the continuous and rapid dissipation of alcohol from the bloodstream, not the presence or absence of other positive test results. This argument flies in the face of our supreme court's clear directive in Krajewski.

¶ 14. By its plain language, Krajewski instructs that once a satisfactory and useable chemical test is taken, the exigency created by the dissipation of alcohol is extinguished. This conclusion is logical given the concerns that prompted the supreme court's holding in that case; namely, that the driver would later refuse to cooperate with authorities in submitting to a breath test and/or fail to give a valid breath specimen and, consequently, precious time, during which the evidence would continue to dissipate, risks being lost. These concerns do not come into play once a satisfactory, useable chemical test has been performed — law enforcement would have already collected the evidence it needs. Unless law enforcement has some basis for believing the first test is unreliable or unusable, the exigent circumstances permitting law enforcement to conduct a forcible blood draw no longer exist.

¶ 15. The State also appears to argue that even if it appeared to police at the time of the arrest that a satisfactory, useable chemical breath test had been administered, the defendant could later successfully attack the breath test at trial and therefore the exigency does not disappear. However, we do not interpret Krajewski as saying that the determination of whether a chemical test is satisfactory and useable is made at the time of trial. Rather, this determination is to be made at the time the blood alcohol is dissipating in the alleged drunk driver's system — the time at which the Fourth Amendment intrusion is to occur.

¶ 16. We are of course bound by the plain language used by the supreme court in Krajewski. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (holding that only the supreme court has the power to overrule, modify or withdraw language from a previous supreme court opinion). Accordingly, we hold that after an individual arrested on probable cause for drunk driving has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exist.

¶ 17. In the case at hand, the record contains no evidence that the police were concerned about the breath test being in any way unsatisfactory or unusable. For example, there is no evidence that the equipment was not working properly or that Faust's breath sample was otherwise insufficient. In fact, at the motion hearing, Olsen testified that he believed he had obtained a valid and useable sample of Faust's breath. The intoximeter reading was .09, which established that Faust was operating with a prohibited blood alcohol level, given his two prior convictions, and Olsen testified that he was aware of this. Olsen also acknowledged that he had no reason to believe that Faust was under the influence of some other type of controlled substance and he did not request the blood test for the purpose of detecting the presence of controlled substances. It appears that Faust had consented to and provided a satisfactory and useable chemical breath test as required by Krajewski. We therefore conclude that the trial court correctly determined that exigent circumstances did not exist to justify the warrantless and nonconsensual blood draw and thus properly suppressed the evidence derived therefrom. We affirm.

By the Court. — Order affirmed.

NETTESHEIM, J.

¶ 18. (concurring). With little confidence, I join the majority opinion. My hesitancy about this case stems not from the majority opinion, but rather from the case on which it is founded — State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089 (2002). In my judgment, Krajewski is internally inconsistent and sends mixed signals. I join my colleagues in this case only because an isolated passage in Krajewski mandates an affirmance and I, like the majority, am bound by the pronouncements of our supreme court. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 19. The ultimate holding of Krajewski is that "the warrantless blood draw in this case was properly based on exigency and complied with [the] factors enumerated in Bohling." Krajewski, 255 Wis. 2d 98, ¶ 3.1 agree with this holding. I also agree with the logic of Krajewski, which explains in some detail why the exigency of dissipating alcohol persists even in the face of an existing breath test. Id., ¶¶ 40-42. Unfortunately, the opinion prefaces this discussion with the following sentence upon which the majority hangs its hat: "[t]he exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken." Id., ¶ 40; Majority at ¶ 12.

¶ 20. Having made that statement, Krajewski then embarks on a discussion which seems to contradict it. In the very next sentence, Krajewski says, "Securing a breath test rather than a blood test may not be satisfactory to law enforcement because an officer may want to determine whether the person is also under the influence of controlled substances." Krajewski, 255 Wis. 2d 98, ¶ 40.

¶ 21. But the contradiction does not stop there. In the very next paragraph, Krajewski states, "Even when a person submits to a breath test in lieu of a blood test — outside the provisions of the implied consent statute — the test may be subject to challenge on grounds that the person's consent to the test was not given freely and voluntarily." Id. at ¶ 41. While Faust's breath test was administered under the auspices of the implied consent law, that law does not guarantee that the requirements of the criminal law governing the free and voluntary giving of consent have otherwise been satisfied. Moreover, the implied consent statute does not restrict the police from using other constitutional means to collect evidence of the driver's intoxication. State v. Gibson, 2001 WI App 71, ¶ 12, 242 Wis. 2d 267, 626 N.W.2d 73.

¶ 22. In short, my concern is that the police do not have a crystal ball in these situations, a proposition which the Krajewski decision seems to recognize. While the police here presumably believed that they had obtained a valid breath test, this does not guarantee, in the very words of Krajewski, a satisfactory and useable breath test. That determination would depend on a future ruling by the trial court in the event Faust should challenge the breath test. We must bear in mind that this case is before us via the State's appeal from the trial court's order granting Faust's motion to suppress. See Wis. Stat. § 974.05(1)(d)2. Thus, this case remains pending in the trial court.

¶ 23. This same concern applies to Faust's status as an alleged third-time offender. Faust's breath test produced a result of 0.9 grams of alcohol per 210 liters of breath, which was above the 0.8 level for such an offender, but below the .10 level for a first- or second-time offender. Wis. Stat. § 885.235(lg)(c), (cd). Here again, without a crystal ball, the police had no assurance that some or all of Faust's prior convictions would go unchallenged. Should that occur and should any one of the prior two convictions be unfounded, the State will be required to prove that Faust operated a motor vehicle with a PAC of .10 or more, not 0.8 or more. Both this court and the supreme court have seen a steady stream of challenges (some successful) to alleged prior convictions in criminal cases. See State v. Saunders, 2002 WI 107, ¶ 1, ¶ 54, 255 Wis. 2d 589, 649 N.W.2d 263; State v. Wideman, 206 Wis. 2d 91, 94, 107-08 n.24, 556 N.W.2d 737 (1996); State v. Koeppen, 195 Wis. 2d 117, 121, 130, 536 N.W.2d 386 (Ct. App. 1995); State v. Theriault, 187 Wis. 2d 125, 130, 132 n.1, 522 N.W.2d 254 (Ct. App. 1994); State v. Goldstein, 182 Wis. 2d 251, 254, 261, 513 N.W.2d 631 (Ct. App. 1994).

¶ 24. The supreme court's isolated statement in Krajewski, upon which the majority opinion rests, appears to hold that the exigency of an OWI suspect's dissipating alcohol level is eliminated because a blood test would merely provide corroborating evidence of the breath test.1 have examined the law of exigent circumstances and can find no case law or other commentary that has made this statement. To the contrary, in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), where our supreme court first approved the forcible taking of an OWI suspect's blood draw, the court said:

We hold that the dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a warrantless blood draw under the following circumstances: (1) the blood draw is taken at the direction of a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and (2) there is a clear indication that the blood draw will produce evidence of intoxication.

Id. at 547-48. Here, all of the factors contemplated by Bohling were present. The dissipation of alcohol existed as a matter of law. The blood draw was taken at the direction of a law enforcement officer. Finally, there was clear evidence that a blood draw would produce evidence of intoxication. If I were writing on a clean slate, I would hold that the exigency of Faust's dissipating blood alcohol level was not eliminated simply because the police had already obtained a breath test result.

¶ 25. Appellate courts sometimes criticize the police for failing to conduct a thorough investigation. See State v. Kieffer, 217 Wis. 2d 531, 550-51, 577 N.W.2d 352 (1998). Here, we criticize the police for being too thorough. I dislike the result in this case. But given the supreme court's utterance in Krajewski, I see no choice but to affirm. I reluctantly concur.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       In this case, there was no dispute that the breath test was, in the opinion of the officer, valid. It is also undisputed that Faust tested over the limit. We express no opinion as to whether exigent circumstances would remain if the defendant tested under the limit. We will leave it up to a future court to decide whether a result unfavorable to police is, in the words of the Krajewski court, not "satisfactory" and "useable" such that exigent circumstances remain. See State v. Krajewski, 2002 WI 97, ¶ 40, 255 Wis. 2d 98, 648 N.W.2d 385, cert. denied, 537 U.S. 1089 (2002). To decide the issue now would be nothing more than dicta because, as we have noted, the breath test result here was over the limit for Faust.

        State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).

       Wisconsin Stat. § 346.63(1) prohibits not only operating under the influence of an intoxicant, but also operating under the influence of a controlled substance, a controlled substance analog, or any combination of the three. The statute also prohibits operating under the influence of any other drug that impairs the ability to operate a motor vehicle or any combination of an intoxicant and such drug.

       The same can be said for the steady stream of challenges that the appellate courts have seen to breathalyzer results. See, e.g., City of New Berlin v. Wertz, 105 Wis. 2d 670, 672, 314 N.W.2d 911 (Ct. App. 1981) (defendant moved to suppress the breathalyzer test results on the grounds that the testing procedures and methods did not meet certain administrative code requirements); State v. Walstad, 119 Wis. 2d 483, 504, 351 N.W.2d 469 (1984) (defendant challenged the breathalyzer result before trial court based on whether a used breathalyzer test ampoule is retestable); State v. Busch, 217 Wis. 2d 429, 436, 576 N.W.2d 904 (1998) (defendant moved to suppress on grounds that modified version of intoxilyzer machine had not been evaluated and approved for use by the chief of the chemical test section); State v. Dwinell, 119 Wis. 2d 305, 308, 349 N.W.2d 739 (Ct. App. 1984) (defendants challenged the admission of breathalyzer test results on grounds that the intoxilyzer machine, the Intoximeter 3000, was an unreliable and inaccurate measuring device); State v. Burkman, 96 Wis. 2d 630, 634, 292 N.W.2d 641 (1980) (the trial court excluded breathalyzer results because the officer failed to comply with administrative procedures requiring that the subject be kept under continuous observation for at least twenty minutes prior to the collection of the breath specimen). In addition, this court has addressed the admissibility of breathalyzer test results in a steady stream of single judge appeals.

       Of course, if the breath test should be suppressed, the blood test would not be corroborating evidence. Instead, it would be the only evidence of a PAC violation. The same is true if any of Faust's prior convictions should be struck.


author: PETERSON, J. CANE, C.J.

text:
    Nancy Megal, Plaintiff-Appellant, v. Green Bay Area Visitor & Convention Bureau, Inc., Valley Forge Insurance Company, and Tommy G. Thompson, Secretary of the United States Department of Health and Human Services, Defendants-Respondents.
    Court of Appeals

      No. 02-2932.

      Submitted on briefs August 5, 2003.—

      Decided October 7, 2003.

    2003 WI App 230
    (Also reported in 672 N.W.2d 105.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John C. Peterson oí Peterson, Berk & Cross, S.C., Appleton.
    On behalf of the defendants-respondents, the cause was submitted on the brief of William J. Ewald and Tina M. Dahle, Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, and Kenneth E. Rusch, O'Hagan, Smith & Amundsen, Milwaukee.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 12-16-03.

   PETERSON, J.

¶ 1. Nancy Megal appeals a summary judgment dismissing her claim of a safe-place violation. Megal slipped and fell on a french fry when she was walking down a stairway at the Brown County Veterans Memorial Arena. In order to prevail, Megal must ordinarily be able to prove actual or constructive notice-that the arena knew the french fry was on the stairway or that the french fry was there long enough so that the arena should have discovered it. Megal can prove neither. Instead, she claims an exception constructive notice requirement: there is a reasonable probability the unsafe condition occurred because of the nature of the business and the manner in which it is conducted. We disagree and affirm the judgment.

Background

¶ 2. On February 6, 1998, Megal attended an ice show at the arena. The arena has 61,000 square feet on three floors. It has the capacity to hold 5,248 people, and on this night 4,220 tickets were sold. Megal sat in the upper level. After the show ended, she was exiting by walking down a stairway. The stairs were crowded and she could not see the stairs in front of her. Megal slipped on a two- or three-inch ketchup-soaked french fry on one of the bottom stairs. She did not see the french fry before she slipped on it, nor did she know how long the french fry had been on the step. As a result of the fall, Megal fractured her left ankle.

¶ 3. The arena does not allow patrons to carry in food or drink from the outside. Patrons can purchase concessions in the lower concourse of the arena beginning one hour before the show starts until approximately fifteen minutes before the show ends. There are no restrictions on where patrons can take their concessions in the arena.

¶ 4. During ice show performances, there are usually two people performing janitorial services. Both persons share responsibilities for cleaning spills throughout the arena and for maintaining the restrooms. There are no formal, written procedures for inspection of the premises. The employees clean the bathrooms and dust mop the floor near the concession stand, but they usually only clean up spills outside of these areas when a customer or other arena employee reports them.

¶ 5. Megal sued the arena, among other parties, alleging a violation of Wisconsin's safe-place statute, Wis. Stat. § 101.11, and common law negligence. The arena moved for summary judgment, and the trial court granted the motion. With respect to the safe-place violation, the trial court determined Megal could not prove the arena had actual or constructive notice of the dangerous condition, the french fry. With respect to the negligence claim, the trial court concluded it was "pure speculation to argue any procedure or inspection pattern or number of personnel would have been able to locate, remove, and clean up the french fry."

Discussion

¶ 6. When reviewing a summary judgment, we perform the same function as the trial court, and our review is independent. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). On summary judgment, a court must view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 511-12, 383 N.W.2d 916 (Ct. App. 1986). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08.

¶ 7. The safe-place statute requires a place of employment to be kept "as safe as the nature of the premises reasonably permits." Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361 (1967). Owners and operators are not liable for an unsafe condition unless they have either actual or constructive notice of the condition. Id. at 54-55. Constructive notice generally exists " 'where the hazard has existed for a sufficient length of time to allow the vigilant owner or employer the opportunity to discover and remedy the situation.1" Kaufman v. State St. Ltd. P'ship, 187 Wis. 2d 54, 59, 522 N.W.2d 249 (Ct. App. 1994) (citation omitted). What constitutes "a sufficient length of time" depends on the nature of the business, the nature of the defect, and the public policy involved. May v. Skelley Oil Co., 83 Wis. 2d 30, 36-37, 264 N.W.2d 574 (1978). Thus, under the general rule, constructive notice cannot be assigned where it cannot be proved how long a hazardous condition existed. Kaufman, 187 Wis. 2d at 59.

¶ 8. There is an exception to the general constructive notice rule, called the "Strack" exception. It applies only when there is "a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted .. . ." Strack, 35 Wis. 2d at 57-58. Under those circumstances, an injured person does not have to prove the dangerous condition existed for a sufficient period of time to allow an owner to correct the condition. Id. Rather, "a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice." Id. at 54-55.

¶ 9. Megal cannot prove how long the french fry was on the stair. The french fry could have been there for the entire show, part of the show, or could have been dropped by one of the exiting patrons immediately in front of Megal just seconds before she stepped on it. Megal argues this case should fall under the Strack exception to the general rule of constructive notice.

¶ 10. Under Strack, Megal claims a jury could find the arena liable for her injuries based on either the arena's failure to clean the stairs on which she fell or on the arena's method of operation. Megal argues the method of operation allowed patrons to take concessions anywhere in the arena. She claims a jury could conclude that this creates foreseeable danger because it is a reasonable assumption patrons would drop food at some time. The jury then could conclude it was incumbent on the arena to employ sufficient custodial persons and to create and follow clean-up procedures in order to ensure the premises were as safe as their nature reasonably permits.

Question of Fact or Question of Law

¶ 11. We must first decide if Megal's argument presents a question of fact, as she claims, or a question of law. If it is a question of fact, summary judgment was inappropriate and a jury must decide the issue. If it is a question of law, summary judgment is an appropriate procedure.

¶ 12. In order to resolve this issue, we must understand the distinction between questions of fact and questions of law.

The distinction between propositions of fact and conclusions of law is this: Propositions of fact are descriptive; conclusions of law are dispositive. Propositions of fact state history; conclusions of law assign legal significance to that history.

Clarence Morris, Law and Fact, 55 Haev. L. Rev. 1303, 1329 (1942).

When there is but one account of what happened [however the account is determined], and the application of acceptable rules of law to that account is problematical, a question of law results.

Morris, supra, at 1314-15 (quoting Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443 (1899)).

A conclusion of law results when legal effects are assigned to events. A conclusion of law stands for more than the happening of events; it is at least a step in the legal disposal of events. If a rule of law is applied before a conclusion is reached, that conclusion is one of law.

Morris, supra, at 1328-29.

¶ 13. Ordinarily, notice is a question of fact left to the jury to answer. Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 370-71, 350 N.W. 2d 730 (Ct. App. 1984). This is because the facts are generally disputed. Did the proprietor know the french fry was on the stairs? Or how long had the french fry been lying there undiscovered? To use Morris's language, these are descriptive questions-the history, the happening of events. That is why they are questions of fact.

¶ 14. Here, however, there is no dispute about the happening of events. The only question is what legal significance to attach to those events. That is a question of law.

¶ 15. Our conclusion is bolstered by the reported cases. In Kaufmann, 187 Wis. 2d at 65, we affirmed a summary judgment dismissing a safe place claim. We concluded as a matter of law that the Strack exception did not apply to a banana in a parking lot outside a grocery store. Id. Further, in an opinion authored by Chief Justice Hallows — who also authored Strack — the supreme court upheld a directed verdict, concluding as a matter of law that Strack did not apply to a burned out light in a parking lot. Low v. Siewart, 54 Wis. 2d 251, 254, 195 N.W. 2d 451 (1972).

Strack

¶ 16. We must now determine whether Strack applies in this situation. Strack was injured when she slipped and fell on a prune that had fallen on the floor of a grocery store. Strack, 35 Wis. 2d at 54. The issue was whether the store had sufficient notice that the prune was on the floor. Id. The court held:

[I]n circumstances where there is a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted, then constructive knowledge of the existence of such an unsafe condition may be charged to the operator and such constructive notice does not depend upon proof of an extended period of time within which a shop owner might have received knowledge of the condition in fact.

Id. at 57-58. The grocery store did not have actual notice that the prune was on the floor. However, the store displayed produce in a way that the products were handled by customers and could easily be dropped or knocked to the floor. Id. at 56. The store was therefore required "to use reasonable measures to discover and remove such debris from the floor." Id.

¶ 17. Strack was followed by Steinhorst v. H.C. Prange Co., 48 Wis. 2d 679, 180 N.W.2d 525 (1970). Steinhorst slipped and fell on shaving foam on the floor at a self-serve men's cosmetics counter. Id. at 681-82. The court, applying Strack, determined that the nature of a self-serve counter called for "periodic inspection." Id. at 684. The store therefore had constructive notice of the spill. Id.

¶ 18. Strack and Steinhorst are the only two cases approving the application of the Strack exception. We recently analyzed both cases in Kaufman. We observed that Strack "was influenced more by the 'nature' of the location and the certainty of everyday conduct inside a grocery store, than by the uncertainty of the length of time the prune might have been on the aisle floor." Kaufman, 187 Wis. 2d at 61. As to Steinhorst, we noted that the court said the unsafe condition "was substantially caused by the method used to display merchandise for sale." Kaufman, 187 Wis. 2d at 62 (quoting Steinhorst, 48 Wis. 2d at 684). Finally, we are reminded of our observation in Gerdmann, 119 Wis. 2d at 734, that the businesses involved in Strack and Steinhorst were "unique operations." Kaufman, 187 Wis. 2d at 64.

¶ 19. The Gerdmann case made an accurate observation. Nationally, the exception set out in Strack is often referred to as the "mode-of-operation rule." Id. In explaining the rule, 62A Am. Jur 2d Premises Liability § 575 at 136 (1990), states the rule recognizes that "carelessness of patrons is to be anticipated in a self-service supermarket operation . . . ."

¶ 20. The courts engrafted the notice requirement onto the safe-place statute. The reason was fundamental fairness.

Natural principles of justice would seem to require [notice],... This is so in accord with the natural instincts of justice that a contrary purpose should not be imputed to a legislative act in the absence of an unequivocal declaration of such purpose.

Pettric v. Gridley Dairy Co., 202 Wis. 289, 292-93, 232 N.W. 595 (1930).

¶ 21. Strack created an exception to the ordinary-notice rules. The exception, however, is very narrow. It has only been applied in self-service situations such as the produce department of a grocery store (Strack) or a cosmetics counter (Steinhorst). More important, it has been limited to the immediate area where the dangerous condition was created, namely at the location of the self-service. In both Strack and Steinhorst, the debris fell immediately adjacent to the area from which it came. Here, the french fry was well removed from the area where it was purchased.

¶ 22. If we were to apply Strack here, the exception would swallow the rule. This is a 61,000 square foot arena with seating for over 5,000 people on three levels. Patrons were free to take food and drink anywhere in the arena. How could the arena possibly have patrolled the entire facility to be on guard for something such as a spilled french fry? With thousands of patrons exiting at the end of the show, Megal has not provided a principled and reasonable response to this circumstance that would prevent the injury she sustained.

¶ 23. Consider also the ramifications for other public places. This exception would then apply to stadiums, theaters, restaurants, shopping malls. The list is endless. Imagine, for example, the consequences for Lambeau Field when more than 70,000 people are trying to exit at the end of a football game. Are they all required to sit in their seats until custodians have inspected all the stairways, hallways, aisles and rows? How many custodians must the stadium employ? If we applied Strack here, every time someone slipped and fell on a foreign substance in a public place, a jury would have to decide whether an owner or operator would be exposed to liability even if the owner or operator did not know about the substance or have time to discover it.

¶ 24. The safe-place law was never intended to make owners and operators insurers of the public's safety. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26, 284 N.W.2d 692 (Ct. App. 1979). Yet that would be exactly the result if we extended Strack to this case.

Negligence Claim

¶ 25. Megal also pleaded common law negligence. The tried court granted summary judgment dismissing that claim as well. A negligence claim cannot be maintained when a safe-place violation cannot be established. Balas v. St. Sebastian's Cong., 66 Wis. 2d 421, 426-27, 225 N.W.2d 428 (1975). Since we have upheld the dismissal of the safe-place violation claim, we also uphold the dismissal of the negligence claim.

By the Court. — Judgment affirmed.

CANE, C.J.

¶ 26 (dissenting). I respectfully dissent from the majority opinion for four reasons: first, whether constructive notice of an unsafe condition may be charged to the arena is a fact question for the jury; second, the majority opinion rewrites the Strack exception; third, the majority opinion is improperly driven by policy considerations; and, finally, our standard of review requires reversal of summary judgment.

¶ 27. Generally, to establish liability for an alleged safe-place violation, a plaintiff must prove three elements: (1) the existence of a hazardous condition; (2) that such condition caused the injury; and (3) that the building owner had actual or constructive notice of the condition. See Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis. 2d 321, 326, 227 N.W.2d 444 (1975). Regarding the third element, "the general rule is that constructive notice is chargeable only where the hazard has existed for a sufficient length of time to allow the vigilant owner or employer the opportunity to discover and remedy the situation." May v. Skelley Oil Co., 83 Wis. 2d 30, 36, 264 N.W.2d 574 (1978). However, "where there is a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted, then constructive knowledge of the existence of such an unsafe condition may be charged to the operator of the premises." Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 57-58, 150 N.W.2d 361 (1967). Such constructive notice does not depend upon proof of an extended period of time within which the operator might have received actual knowledge of the unsafe condition. Id. Strack is the exception to the general rule that constructive notice is chargeable "only where the hazard has existed for a sufficient length of time to allow the vigilant owner or employer the opportunity to discover and remedy the situation." May, 83 Wis. 2d at 36. Put differently, Strack is another way of proving constructive notice.

¶ 28. Thus, the jury may conclude the operator has constructive knowledge of an unsafe condition where there is a reasonable probability that an unsafe condition will occur (1) in an area under the exclusive control of the owner or operator of the premises, because of (2) the nature of the business, and (3) its method of operations. Strack, 35 Wis. 2d at 57-58; Kaufman v. State St. Ltd. P'ship, 187 Wis. 2d 54, 64, 522 N.W.2d 249 (Ct. App. 1994) (adding the exclusive control element).

Question of Law or Fact

¶ 29. First, whether the arena had constructive notice of an unsafe condition under the conditions set forth in Strack and Kaufman is a fact question for the jury. While it is true that situations involving undisputed facts generally present questions of law appellate courts review de novo, State v. Williams, 104 Wis. 2d 15, 21-22, 310 N.W.2d 601 (1981), the supreme court nevertheless has held the question of whether actual or constructive notice exists presents a jury question not to be decided by appellate courts as a matter of law. Werner v. Gimbel Bros., 8 Wis. 2d 491, 493, 99 N.W.2d 708 (1959); see Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227-28, 102 N.W.2d 222 (1960); see also Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 370, 372, 350 N.W.2d 730 (Ct. App. 1984) (holding where a party cannot conclusively establish the owner had constructive notice of an unsafe condition, the notice question was properly submitted to the jury). Indeed, Strack, the very case that carved out the exception from the general rule of constructive notice, itself was an appeal from a jury verdict. There, the supreme court upheld a jury's finding of constructive notice where there was no evidence that a prune was on the floor of the grocery store longer than five minutes. Strack, 35 Wis. 2d at 56. Therefore, the jury is the proper voice to answer the question of whether the arena had constructive notice of an unsafe condition.

¶ 30. The majority cites Kaufman and Low v. Siewert, 54 Wis. 2d 251, 195 N.W.2d 451 (1972), as support for its conclusion that the issue of whether the Strack exception applies presents a question of law. In Kaufman, we upheld summary judgment in favor of a grocery store where the plaintiff slipped and fell on a banana peel in the store's parking lot. The court refused to expand the Strack exception to a parking lot because it was an area beyond the doors of the premises and outside the exclusive control of the grocery store. Kaufman, 187 Wis. 2d at 64. Similarly, in Low the supreme court upheld a directed verdict in favor of an owner of premises where the plaintiff fell in a darkened parking lot as a result of a light bulb being either burned out or turned off. There, the court distinguished Strack on its facts and held it did not apply because the plaintiff could not prove the nature of the business or the manner in which it was conducted created a reasonable probability that a burned out light bulb would occur in a parking lot. Low, 54 Wis. 2d at 254-55.

¶ 31. However, it does not follow that the application of Strack always presents a question of law simply because these cases decided Strack did not apply as a matter of law. It seems to me Low and Kaufman are more properly characterized as standing for the limited implication that there are circumstances when the exception to the general rule of constructive notice will not apply as a matter of law; namely, where no jury acting reasonably could find the owner had constructive notice of an unsafe condition, it is proper for a court, as a matter of law, to intervene and conclude the owner was not negligent. See Alvarado v. Sersch, 2003 WI 55, ¶ 29, 262 Wis. 2d 74, 662 N.W.2d 350 (summary judgment in negligence is proper where no reasonable jury, properly instructed, could find defendant was negligent).

¶ 32. If a plaintiff fails to show the essential elements of a cause of action, summary judgment, in part or in whole, or directed verdict against him or her is proper. See Quality Lumber & Coal Co. v. Kemp, 46 Wis. 2d 621, 624, 176 N.W.2d 401 (1970). This, it appears, was precisely the situation presented in Kaufman and Low. Again, Kaufman involved an injury that occurred in an area outside the exclusive control of the owner, and, in Low, the plaintiff could not establish a connection between the nature of the owner's business or its method of operation with a burned out light bulb in a parking lot. Thus, in those circumstances it was proper to conclude, as a matter of law, the Strack exception was inapplicable. Because the plaintiff in each case could not establish all the elements of Strack, there would have been no use in submitting the question of negligence to the jury.

¶ 33. As such, whether the arena may be charged with constructive notice of an unsafe condition as set forth in Strack and Kaufman is a question of fact for the jury, unless, of course, no jury acting reasonably could find constructive notice. The plaintiff must produce some facts from which a jury acting reasonably could conclude the arena should be charged with constructive notice via Strack in order to survive summary judgment or a directed verdict. This means, in practice, the plaintiff has to provide some facts that tend to prove a jury acting reasonably could find a reasonable probability an unsafe condition will occur, (1) because of the nature of the business (2) and its method of operations, (3) in an area under the exclusive control of the owner or operator of the premises. Strack, 35 Wis. 2d at 57-58; Kaufman, 187 Wis. 2d at 64. Then, it is up to the jury, as the arbiter of ultim ate facts, to determine whether to charge the owner or operator with constructive notice of the unsafe condition.

¶ 34. Applying this analysis and viewing the facts most favorably to Megal, a reasonable jury could conclude the arena should be charged with constructive notice of an unsafe condition based on the Strack exception. First, it cannot seriously be refuted that the nature of the arena's business in part was to sell food. Second, the arena's method of operation was as follows: patrons were allowed to take their food anywhere in the arena; the arena employed as few as two janitorial employees, with possibly only one working on the night of Megal's injury, to monitor the entire facility; there are no formal written procedures for inspection of the premises; and the employees do not conduct regular sweeps of the stairs or concourse areas to ensure they are clear of spills or other unsafe conditions because they usually only clean up spills outside the concession area when someone reports them. Third, the injury occurred on the stairway inside the arena's premises. This is an area under the exclusive control of the owner or operator of the premises.

¶ 35. There are sufficient facts for all the elements. Thus, a jury acting reasonably could charge the arena with having constructive notice of an unsafe condition and it need not depend upon proof of an extended period of time within which the arena might have received knowledge of such an unsafe condition.

Scope of Strack Exception

¶ 36. The second reason I dissent from the majority opinion is because it unwarrantedly limits the scope of the Strack exception. As I read the majority opinion, it has rewritten the Strack exception as follows: (1) the nature of the business must be merchandising or retail, or presumably some other similar venture, (2) its method of operation must be self-service or other similar mode of operation that allows carelessness of patrons, and (3) the location of the unsafe condition must be nearby the area where the dangerous condition is created. The first element does not appear to be determinative in that the opinion gives much more emphasis to the latter two elements. I disagree with this narrowing of Strack for two reasons.

¶ 37. Regarding the majority opinion's first two elements, their scope is broader than the majority suggests. Despite the fact that Steinhorst v. H.C. Prange Co., 48 Wis. 2d 679, 180 N.W.2d 525 (1970), dealt with a self-serve merchandise counter in a retail store and Strack involved a self-serve merchandise counter in a grocery store, the court in Strack announced the exception in terms of whether there is a reasonable probability an unsafe condition will occur "because of the nature of the business and the manner in which it is conducted." Strack, 35 Wis. 2d at 58. Similarly, Steinhorst phrases the exception in terms of "the manner of doing business" and the business's "method of operation." Steinhorst, 48 Wis. 2d at 684. If the exception was to be limited to self-service stands or particular types of businesses, such as grocery or retail stores, it is most reasonable to assume this would have been done in Strack, the very case that carved out the exception, or in Steinhorst, the case that most recently followed it. What is more, I would not place stock in the fact that the exception has not been applied to venues outside of self-service merchandising or retail or grocery stores. This fact does not lend credence to the conclusion it should not be applied to other venues.

¶ 38. With respect to the majority's third element, it does not appear to me that the location of the unsafe condition, inside of the premises, has any bearing on the application of the Strack exception. In Kaufman, we noted Strack "was influenced more by the 'nature' of the location and the certainty of everyday conduct inside a grocery store, than by the uncertainty of the length of time the prune might have been on the aisle floor." Kaufman, 187 Wis. 2d at 61. However, this notably does not state the unsafe condition must occur nearby the location in which the dangerous condition is created. Instead, it states in broad terms that the location of the unsafe condition must be "inside" the owner's premises. This reading of Kaufman is supported by the court's holding, namely that "[the plaintiffs] have provided no authority to establish the basis on which we could extend the Strack exception beyond the doors of the premises. . . . The parking lot in this case was not within the exclusive control of the defendants." Kaufman, 187 Wis. 2d at 64 (emphasis added). In light of this language, my view is that the unsafe condition need only occur inside the owner's premises or in an area under the exclusive control of the owner.

Public Policy Considerations

¶ 39. The third reason I cannot join the majority opinion is because its holding appears to be primarily driven by public policy considerations. The policy considerations include, (1) applying Strack to this case would result in the exception swallowing the general rule of proving constructive notice because the arena could not possibly have patrolled the entire facility to be on guard for something such as a spilled french fry, and (2) the impact of this case would implicate all arenas, stadiums, theaters, restaurants, and shopping malls. With these policy considerations in the balance, the majority limits the imposition of liability for large-scale entertainment venues such as the arena. I cannot agree.

¶ 40. The supreme court held that courts cannot preclude liability on public policy grounds before a full factual resolution of the matter has occurred at trial. Alvarado, 262 Wis. 2d 74, ¶¶ 18-21. A full factual resolution of the matter, also called "a sufficient factual basis," seems to include "[f]indings as to actual negligence, damages and the causal relationship between them." Id., ¶ 25. These "facts" are not only material and helpful, but also are necessary in order to facilitate a "fair and complete evaluation of the policy considerations." Id., ¶ 23. The only time a court may review public policy considerations to preclude liability before trial are "those cases where the facts are simple to ascertain and the public policy questions have been fully presented." Id., ¶ 18.

¶ 41. Applying Alvarado, the majority's appeal to policy considerations at this stage in the litigation is premature. Nevertheless, I will address the policy implications raised by the majority opinion and raise one of my own.

¶ 42. While, again, in my view we should not apply Strack to the case here but rather should allow the jury to resolve the issue, there is no basis upon which to conclude that the application of Strack here would swallow the general constructive notice rule. The majority seems to say that plaintiffs would never resort to proving constructive notice under the general rule - that is, by length of time evidence - but would rather automatically default to the Strack exception.

¶ 43. The flaw in this prediction is that it presumes the Strack exception is always an easy standard to prove. I do not agree with this assessment. Under Strack, not only does a plaintiff have to prove that an unsafe condition occurred in an area under the exclusive control of the owner of a premises, the plaintiff also has to persuade the jury that this is attributable to the nature of the business with a method of operation such that it can be said to a reasonable probability the unsafe condition would occur.

¶ 44. It may not be difficult to prove this with the facts Megal presents, mostly because the arena only had at most two employees working a 61,000 square foot arena who did little more than wait for someone to become sufficiently upset about a spill to actually leave the ice-show performance to lodge a complaint. The same seems to be true in Strack and Steinhorst. In Strack, one of the reasons the court upheld the jury's finding of constructive notice was that it was the grocery store's policy to check the floors every ten minutes and to sweep at least once an hour, yet no one knew when the floor was last inspected or swept. Strack, 35 Wis. 2d at 56. Similarly in Steinhorst, the court noted "[t]here is no evidence the aisle was checked for safety, although this type of self-serve operation should call for periodic inspection." Steinhorst, 48 Wis. 2d at 684.

¶ 45. Although there may be situations in which Strack could be easily applied, owners and operators of premises could insulate themselves from being subject to Strack by simply adopting and implementing a method of operation geared to reasonably ensuring the safety of the frequenters. The lesson learned from Strack and Steinhorst is that when owners of businesses do little, or nothing at all, to ensure their premises are safe from debris or other temporary defects, their method of operation may create a reasonable probability the unsafe condition will occur. Owners and operators of premises could avoid being subject to Strack, then, by establishing reasonable policies for inspection and clean-up, training employees according to this policy, documenting what is done and when it is done, and, most importantly, following through on the monitoring and clean-up policy. They must do something, anything really, to show their method of operation somehow defeats the plaintiffs assertion they should have known of the defect.

¶ 46. Of course the majority is correct that "the arena could not possibly have patrolled the entire facility to be on guard for something such as a spilled french fry." Nothing in the law requires it to be held to such a standard. All that owners and operators of premises are required to do is ensure their premises are "as safe as the nature of the premises reasonably permits." Strack, 35 Wis. 2d at 54. This includes, at least in Strack situations, implementing a method of operation geared towards reasonably ensuring the safety of the frequenters.

¶ 47. For these reasons, the majority's second policy argument that all arenas, stadiums, theaters, restaurants, and shopping malls may be subject to the Strack exception is specious. These all sell concessions, and they should anticipate spills; yet, they need only adopt a method of operation that provides for reasonable clean-up in a reasonable amount of time. In a broader sense, so long as the venues ensure their premises are "as safe as the nature of the premises reasonably permits," Strack, 35 Wis. 2d at 54, they will not be subject to additional liabilities.

¶ 48. The majority opinion, though, followed to its logical conclusion implicates a terrific public policy problem, and that is that the majority has effectivély granted immunity to large-scale entertainment venues from lawsuits arising out of slip-and-falls on temporary or transitory unsafe conditions that occur on their premises. These businesses now have no incentive to monitor their premises to ensure they are reasonably free of debris or other unsafe conditions. Indeed, the opposite is true.

Standard of Review

¶ 49. The final reason I dissent from the majority opinion is because it gives no deference to the standard of review. Summary judgment is a drastic remedy that is to be granted only when the movant is clearly entitled to judgment as a matter of law. Village of Fontana-On-Geneva Lake v. Hoag, 57 Wis. 2d 209, 214, 203 N.W.2d 680 (1973); McDonald v. Century 21 Real Estate Corp., 111 Wis. 2d 600, 602-03, 331 N.W.2d 606 (Ct. App. 1983). We uphold summary judgment only where reasonable alternative inferences of ultimate facts cannot be drawn from the undisputed facts. See Ritt v. Dental Care Assocs., 199 Wis. 2d 48, 64, 543 N.W.2d 852 (Ct. App. 1995); Dottai v. Altenbach, 19 Wis. 2d 373, 375, 120 N.W.2d 41 (1963). Stated differently, "[w]e will reverse a summary judgment if a review of the record reveals . . . there are undisputed material facts from which reasonable alternative inferences may be drawn." Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77, ¶ 26, 262 Wis. 2d 539, 664 N.W.2d 545.

¶ 50. Whether the undisputed facts of the case at bar warrant the imposition of constructive notice to the arena is an extremely close question. From the facts adduced thus far, reasonable alternative inferences may be drawn from them to resolve this question. Viewing the facts in the light most favorable to the plaintiff, I cannot agree the arena is clearly entitled to judgment as a matter of law. See Kraemer Bros. v. United States Fire Ins. Co., 89 Wis. 2d 555, 567, 278 N.W.2d 857 (1979).

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Court of Appeals Judges John Decker, Paul Gartzke and Richard Brown used Clarence Morris, Law and Fact, 55 Haev. L. Rev. (1942), as a primary source for their 1983 Wisconsin Judicial Conference presentation on Standards of Review for Trial Judges.

        Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 150 N.W.2d 361 (1967).

       The majority opinion appears to add a fourth element: that the plaintiff present "a principled and reasonable" explanation of what the defendant should have done to prevent the plaintiffs injuries from occurring. See majority opinion, supra ¶ 22. I disagree with placing this additional burden on the plaintiff.

       As the Wisconsin supreme court noted, "[w]hether to label an issue a 'question of law,' a 'question of fact,' or a 'mixed question of law and fact' often is more a matter of allocation than analysis." State v. Byrge, 2000 WI 101, ¶ 39, 237 Wis. 2d 197, 614 N.W.2d 477. It is "an allocation in which [it is] recognize[d] [that] one judicial actor is better positioned than another to decide a matter." Id. With regards to questions of notice, including questions of constructive notice (which by definition includes whether Strack applies), the supreme court has relegated the issue to the jury presumably on the theory that it is in a better position to decide the matter. Thus, the majority's reliance on Clarence Morris, Law and Fact, 55 Haev. L. Rev. 1303 (1942), is misplaced.

       This conclusion is further supported, albeit in a broader sense, by an analogy to negligence cases. The safe-place statute does not create an independent cause of action. Krause v. VFW Post No. 6498, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960). Rather, it "lays down a standard of care and if those to whom it applies violate the provisions thereof they are negligent." Id. A safe-place violation, then, is essentially a negligence claim, with the difference being that the safe-place statute imposes on owners or operators of premises a higher standard of care.

        Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26, 284 N.W.2d 692 (Ct. App. 1979); see also Wis JI-Civil 1005 (1999) and 1900.4 (2002).
      Regarding negligence claims, as a general rule, "the existence of negligence is a question of fact which is to be decided by the jury." Ceplina v. South Milw. Sch. Bd., 73 Wis. 2d 338, 342, 243 N.W.2d 183 (1976). This principle also holds true where the facts of the case are undisputed. In Ceplina, the supreme court held where the facts of a case are not seriously contested, the question of whether negligence exists embraces a question of ultimate fact to be decided by the jury. Id. at 344; see also Ennis v. M.A. Hanna Dock Co., 148 Wis. 655, 658, 134 N.W. 1051 (1912) (where facts were undisputed, no need for expert opinion evidence because whether conduct was negligence was ultimate fact to be determined by the jury). This rule makes sense because it acknowledges that a reasonable jury could draw competing inferences of ultimate fact from undisputed facts. See Douglas v. Chicago, M. & St. P. Ry. Co., 100 Wis. 405, 407, 76 N.W. 356 (1898). Negligence, then, turns into a question of law only "where the facts are undisputed and the inferences therefrom [are] all one way." Id.

       The public policy considerations that may preclude a party's liability are:
      (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; [or] (6) allowing recovery would enter a field that has no sensible or just stopping point.

        Alvarado v. Sersch, 2003 WI 55, ¶ 17, 262 Wis. 2d 74, 662 N.W.2d 350.

       As stated in Kaufman, "Strack clearly does not stand for the proposition that constructive notice automatically exists when the condition is present for no appreciable time, or when there is no evidence to remove the temporal estimate from the realm of pure speculation." Kaufman v. State St. Ltd. P'ship, 187 Wis. 2d 54, 63, 522 N.W.2d 249 (Ct. App. 1994).

       For this reason, the upshot of my view will never be to force venues that sell concessions such as this to herd their patrons into a confined area to consume their purchases. Instead, businesses will simply have to implement, and follow, clean-up procedures that are designed to reasonably ensure the premises are as safe as their nature reasonably permits. Strack, 35 Wis. 2d at 54.