author: WEDEMEYER, P.J. SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Luther Wade Cofield, Defendant-Appellant.
    Court of Appeals

      No. 99-1387-CR.

      Submitted on briefs May 2, 2000.

    Decided July 25, 2000.

    2000 WI App 196
    (Also reported in 618 N.W.2d 214.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, assistant state public defender of Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sandra L. Tarver, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.

       Petition to review denied.

   WEDEMEYER, P.J.

¶ 1. Luther Wade Cofield appeals from a judgment entered after a jury found him guilty of three counts of first-degree sexual assault and one count of kidnapping, while armed, all as a habitual offender. Cofield claims that the trial court erroneously exercised its discretion when it admitted "other acts" evidence relating to Cofield's previous convictions of sexual assault of one woman and physical attack of another women. Because the trial court erroneously admitted this evidence, we reverse and remand the case for a new trial.

I. BACKGROUND

¶ 2. On September 5, 1997, Lee H., who lived across the hall from Cofield's apartment, reported to the police that Cofield had sexually assaulted her. She indicated that she went into his apartment to retrieve an antenna that Cofield had borrowed. She stated that Cofield put a knife to her neck and covered her mouth. At trial, Lee testified that Cofield led her to the dining room area, put down the knife, and removed his hand from her mouth. Cofield then apologized to her, explaining that he had just taken a "hit" of cocaine. Lee told Cofield she understood as she had been a drug user, and she knew that people sometimes get aggressive when they are using.

¶ 3. Lee testified that Cofield then directed her to engage in mouth-to-penis intercourse, and she complied. Cofield then offered Lee some cocaine and she accepted it. They smoked cocaine together. Cofield then again engaged Lee in mouth-to-penis intercourse. Afterwards, Lee asked if she could bring her three-year-old daughter into the apartment and Cofield agreed. Cofield gave Lee's daughter some materials so she could draw. Cofield then had penis-to-vagina intercourse with Lee on the couch. After another act of mouth-to-penis intercourse, Cofield answered his telephone. His wife was calling and needed him to pick her up from work. Lee told Cofield he could come over after 5:30 p.m. that evening. Lee took her daughter and left. When Lee's boyfriend came home, she told him what had happened, and they reported the incident to the police.

¶ 4. Lee maintained that the sexual acts were not consensual and that she only went along with Cofield to "get him on her side" and get out of the situation safely. The defense theory was that this was a "dope date" where Lee engaged in the sexual acts in order to obtain drugs. Lee admitted that she has been battling drug addiction for many years.

¶ 5. Prior to trial, the State moved for the admission of other acts evidence. Specifically, it intended to introduce the testimony of two other women who had been assaulted or attacked by Cofield. The first incident occurred in December 1986, and involved Mariellen K, whom Cofield sexually assaulted at knifepoint in her bedroom. The act involved both penis-to-vagina and mouth-to-penis intercourse. The second incident involved Carina Y., who was also attacked in her bedroom, with the use of a knife. This incident occurred in May 1987. The attack was interrupted, however, when one of her roommates heard her scream. Cofield was arrested, charged and convicted for both incidents. The State argued that these incidents could be admitted to show motive or common plan or scheme. The trial court granted the motion and the jury heard this evidence.

¶ 6. Cofield was convicted. He now appeals.

II. DISCUSSION

¶ 7. The issue in this case is whether the trial court erroneously exercised its discretion when it admitted the other acts evidence. See State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). We will sustain an evidentiary ruling if the trial court examined the relevant facts, applied the pertinent law, and reached a rationale conclusion. See Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). We conclude that the trial court erroneously exercised its discretion when it admitted the other acts evidence, applying the theory that the incidents were relevant to intent, motive, common scheme or plan.

¶ 8. In Wisconsin, the admissibility of other acts evidence is governed by WlS. Stat. § 904.04(2) (1997-98), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 9. Whether other acts evidence should be admitted requires the application of a three-part test: (1) is the other acts evidence offered for an acceptable purpose under Wis. Stat. § 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; (2) is the other acts evidence relevant; that is, is the evidence of consequence to the determination of the action, and does it have probative value; and (3) is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues, or undue delay. See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998).

¶ 10. In ruling on the "other acts" motion, the trial court concluded that the prior incidents were "amazing[ly] similar[] in terms of plan and knowledge," and that the prior acts were relevant to the consent issue and not unduly prejudicial. We remind the trial court that "[cjonsent is unique to the individual. 'The fact that one woman was raped . . . has no tendency to prove that another woman did not consent.1 " State v. Alsteen, 108 Wis. 2d 723, 730, 324 N.W.2d 426 (1982) (citation omitted). The State argued to the jury that the evidence was admitted to establish a common plan or scheme. The trial court instructed the jury that the prior acts were admissible to establish motive. We disagree with the trial court's conclusions, and we conclude that the prior acts were improper propensity evidence used to prove that Cofield acted in conformity with his prior convictions.

¶ 11. In reviewing the list set forth in WlS. STAT. § 904.04(2), we reject each of the proper "other purposes" under which the State and the trial court argued the prior acts evidence should be admitted. First, the evidence was not admissible to show intent because intent was not an element of the offense charged. See State v. Danforth, 129 Wis. 2d 187, 202-03, 385 N.W.2d 125 (1986). The State concedes that intent was not an element it had to prove on the sexual assault charges, but argues that intent was an element on the kidnap- . ping charge and, therefore, admissible. This argument, made only on appeal, is a stretch at best. It is clear throughout the entire trial court transcript that the other acts evidence was being introduced as relevant to the sexual assault, not the kidnapping. The State also contends that the evidence was used to show intent to hold the victim to servitude for sex as in State v. Grande, 169 Wis. 2d 422, 433, 485 N.W.2d 282 (Ct. App. 1992). This argument, however, was never made in the trial court and the cautionary instruction on the other acts evidence never mentioned this other purpose. In addition, the prosecutor's closing argument focused on linking the prior acts with the charged offenses. The State, therefore, has waived both arguments. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980).

¶ 12. Similarly, the other acts cannot be properly admitted to show motive. Other crimes evidence may be admitted to establish motive for the charged offense if there is a relationship between the other acts and the charged offense, see e.g., Holmes v. State, 76 Wis. 2d 259, 268-69, 251 N.W.2d 56 (1977), or if there is a purpose element to the charged crime, see State v. Friedrich, 135 Wis. 2d 1, 22, 398 N.W.2d 763 (1987). Here, neither can be satisfied. There was no connection between Cofield's earlier convictions and the Lee case, and there is no evidence that the prior offense provided a reason for committing the charged offenses or that there was some link between them. Further, there is no purpose element in the crimes charged in this case.

¶ 13. The State argues that the similarities between the old and new offenses demonstrated a common scheme or plan. That is, a knife was used in each incident, the race of the women was the same, all of the victims were in their twenties or thirties, they were all women Cofield had seen before, and he told each of them that if they were compliant, they would not get hurt. Our supreme court has addressed the concept of "plan" as that term is used in WlS. Stat. § 904.04(2):

The word "plan" in sec. 904.04(2) means a design or scheme formed to accomplish some particular purpose. . . . Evidence showing a plan establishes a definite prior design, plan, or scheme which includes the doing of the act charged. As Wigmore states, there must be "such a concurrence of common features that the various acts are materially to be explained as caused by a general plan of which they are the individual manifestations."

State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94 (1977) (citation and footnote omitted). In other words, similarity of facts is not enough to admit other acts under this "other purpose." There must be some evidence that the prior acts were a step in a plan leading to the charged offense, or some other result of which the charged offense was but one step. See State v. Roberson, 157 Wis. 2d 447, 453, 459 N.W.2d 611 (Ct. App. 1990). This linkage is simply not present here. There is no evidence that the prior acts were simply a step in a plan leading up to the Lee incident. In addition, there are as many dissimilarities between the earlier acts and the charged offenses as there are similarities. In the charged offense, Cofield shared cocaine with the victim, he put the knife down, the incident took place in his apartment as opposed to the victim's bedroom, he allowed the victim to leave to retrieve her child, and the instant case occurred during the day.

¶ 14. In sum, the prior acts evidence was not admitted for a proper purpose. Rather, the trial court allowed the evidence to be used to show propensity and the State used the evidence to so show. Accordingly, we must reverse the judgment and remand the case for a new trial consistent with the holdings in this opinion.

By the Court. — Judgment reversed and cause remanded.

SCHUDSON, J.

¶ 15. (concurring). Although I agree that the judgment must be reversed and the case remanded for a new trial, I write separately because I depart from the majority opinion in several ways.

¶ 16. First, I believe the majority opinion fails to provide an adequate factual or legal analysis to explain and support our conclusion.

¶ 17. Second, I reject the State's arguments on the merits; unlike the majority, I do not rely on waiver. See Majority at ¶ 11.

¶ 18. Third, I disagree with the majority's decision to "decline to address" the issue of whether the trial court "erred when it refused to undertake an in camera review of the victim's mental health records." See Majority at ¶ 1 n.l. The record on that issue is complete; the merits have been fully briefed; the proper resolution is clear. The trial court erred. On remand, it must undertake the in camera review. Should the next trial court repeat the error by failing to do so, and should Cofield be convicted again, we would have to reverse for a third trial. The parties and the trial court need to know our determination of that issue now.

¶ 19. Accordingly, I respectfully concur.

       Cofield also contends that the trial court erred when it refused to undertake an in camera review of the victim's mental health records. We decline to address this issue, however, because we are reversing and remanding for a new trial. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed). We conclude it would be more appropriate for the new trial court to have an opportunity to address this issue given our evidentiary ruling.

       All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       Because we conclude that there was no proper purpose for admitting this evidence, we need not address the remaining two steps of the "other acts" test.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Linda M. Green, Plaintiff-Respondent, v. Smith & Nephew AHP, Inc., a/k/a Smith & Nephew Perry, Defendant-Appellant.

    Court of Appeals

      No. 98-2162.

      Oral argument July 7, 2000.

    Decided August 1, 2000.

    2000 WI App 192
    (Also reported in 617 N.W.2d 881.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Constantine L. Trela, Jr. and Hille R. Sheppard of Sidley & Austin of Chicago, Illinois; and Donald R. Peterson and Sherry A. Knutson of Peterson, Johnson & Murray, S.C., of Milwaukee. There was oral argument by Donald R. Peterson.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert L. Habush, Mark S. Young, Virginia M. Antoine, and Stefanie A. O'Shea of Habush, Habush, Davis & Rottier, S.C., of Milwaukee. There was oral argument by Robert L. Habush.

    Before Fine, Schudson and Curley, JJ.

      Petition to review granted.

   FINE, J.

¶ 1. Smith & Nephew AHP, Inc., appeals from a judgment entered on a jury verdict against it on the products-liability claim of Linda M. Green. Green claimed, and the jury found, that latex gloves manufactured by Smith & Nephew were defective and unreasonably dangerous, and were a cause of damages she suffered as a result of her allergic reaction to them. In light of evidence that a connection between latex gloves and the type of allergic reaction suffered by Green was essentially not known when Smith & Nephew made the latex gloves that she used, Green did not argue before the trial court, and does not contend on appeal, that Smith & Nephew was under any duty to warn of a possible allergic reaction. Thus, this is a straight defective/unreasonably-dangerous case, not a failure-to-wam case.

I.

¶ 2. Green is allergic to proteins in natural latex, a sensitivity that was triggered by her exposure to the proteins in Smith & Nephew's gloves, which were made from natural latex. Natural latex comes from rubber trees. She used the Smith & Nephew latex gloves during her employment as a radiology technologist and computerized tomography technologist at St. Joseph's Hospital. She was first diagnosed with what her amended complaint characterizes as "latex hypersensitivity" in April of 1991.

¶ 3. Green claimed that Smith & Nephew's latex gloves were defective and unreasonably dangerous because they had a higher protein content than latex gloves made by most other manufacturers, and because the cornstarch powder, which lined the inside of the gloves and made them easier to put on and take off than they would be without the powder, caused the proteins in the latex gloves to be more likely inhaled than latex proteins in powderless gloves. Green conceded that all of the proteins in the Smith & Nephew gloves came from the raw, rubber-tree latex, and that no proteins were added by Smith & Nephew's manufacturing process. She argued, however, that Smith & Nephew should have made the gloves using a process that would have reduced their protein content. She also contended that Smith & Nephew should not have used powder in its gloves.

¶ 4. Green presented to the jury evidence that although not common, latex-allergy among health-care workers is also not rare. Thus, one of Green's experts opined that between five and seventeen percent of health-care workers have a sensitivity to latex. Another of her experts gave the figure at between six and twelve percent. Still another of Green's experts testified that between seven and ten percent of healthcare workers were allergic to latex. We accept these estimates for our analysis because, as noted below, we must look at the evidence in a light most favorable to upholding the jury's verdict.

¶ 5. Smith & Nephew asserts that it is entitled to either a dismissal of Green's action or a new trial. Smith & Nephew gives five reasons supporting its request that we reverse: 1) that, as a matter of law, it is not liable to Green for what it characterizes as her "idiosyncratic" response to latex; 2) that the trial court gave the jury an erroneous instruction; 3) that the trial court erroneously permitted two of Green's witnesses to give expert opinions about whether the latex gloves were safe; 4) that the trial court should not have let the jury learn that the company to which Smith & Nephew sold its glove-manufacturing operation reduced the protein levels in the gloves; 5) that the jury's award of $584,000 for past and future pain, suffering, and disability was too much. For the reasons discussed below, we affirm.

II.

A. Strict Liability.

¶ 6. Whether Smith & Nephew is liable to Green for the injuries she suffered by using Smith & Nephew's latex gloves turns on Wisconsin's adoption of section 402A of the American Law Institute's RESTATEMENT (Second) of Torts (1965), which charted the contours of strict-liability in tort. See Dippel v. Sciano, 37 Wis. 2d 443, 459, 155 N.W.2d 55, 63 (1967) (adopting § 402A). We evaluate the applicable legal principles against the facts of this case that are of record, giving to Green the benefit of all reasonable inferences that the jury could have drawn in returning its verdict in her favor. See Morden v. Continental AG, 2000 WI 51, ¶¶ 38-39, 235 Wis. 2d 325, 351-52, 611 N.W.2d 659, 672 (jury verdict sustained on appeal if there is any credible evidence to support it). Our legal analysis is, however, de novo. See Sunnyslope Grading, Inc. v. Miller, Bradford and Risberg, Inc., 148 Wis. 2d 910, 915, 437 N.W.2d 213, 215 (1989) (whether Wisconsin law permits recovery under certain facts is a question of law). We conclude that under Wisconsin law a manufacturer is liable to a person who suffers an adverse allergic reaction to a product because of a defect that is unreasonably dangerous to a not-insignificant percentage of the population using the product, even though that product may not be dangerous to a majority of its users or consumers.

¶ 7. With exceptions not material here, under Wisconsin law" '[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property.'" Dippel, 37 Wis. 2d at 459, 155 N.W.2d at 63 (quoting § 402A(1)). This is true even though the manufacturer " 'has exercised all possible care in the preparation and sale of his product.'" Ibid. It is also true that "[a] product may be defective and unreasonably dangerous even though there are no alternative, safer designs available." Sumnicht v. Toyota Motor Sales, Inc., 121 Wis. 2d 338, 371, 360 N.W.2d 2, 17 (1984). Additionally, a jury may, under circumstances that are not at issue here, infer from the fact of damage or injury that a product was defective. See Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 73-74, 211 N.W.2d 810, 817 (1973). This all, however, "does not make the manufacturer or seller an insurer nor does it impose absolute liability." Dippel, 37 Wis. 2d at 459-460, 459 N.W.2d at 63; see also Powers v. Hunt-Wesson Foods, Inc., 64 Wis. 2d 532, 536, 219 N.W.2d 393, 395 (1974). Thus, in the context of this case, it is generally recognized that a manufacturer or seller is not strictly liable under § 402A to "a consumer who suffers an allergic reaction to a product without any identifiable defect." Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 522 (7th Cir. 1988) (consumer may not recover in strict liability for injuries she suffered following her idiosyncratic allergic reaction to glue in an artificial-nail kit); see also Mountain v. Procter & Gamble Co., 312 F. Supp. 534, 536 (E.D. Wis. 1970) (product must be unreasonably dangerous to the "ordinary consumer") (allergic reaction to shampoo). Green does not dispute this general principle, but, as noted, contends that Smith & Nephew's latex gloves were defective because they had more proteins than they would have had if Smith & Nephew had made them in a different way, and also because they were powdered. Thus, whether Smith & Nephew is liable to Green under strict-liability in tort turns on whether its latex gloves were "defective" and "unreasonably dangerous" within the meaning of § 402A and Dippel if they cause harm to some, but not all, consumers when used as intended.

¶ 8. There are no Wisconsin decisions discussing liability under § 402A where, as here, the plaintiffs allergic-response injuries are both: 1) not universal or nearly universal to the general population of consumers or users, and 2) not essentially unique to the plaintiff. There are, however, several decisions from other jurisdictions. The one closest in point is Ray v. Upjohn Company, 851 S.W.2d 646 (Mo. Ct. App. 1993). In Ray, the plaintiff worked in a factory that used a chemical that gave him asthma. See id., 851 S.W.2d at 648, 651. Although "tolerable for most people," exposure to the chemical "is dangerous" to those who are sensitized to it. Id., 851 S.W.2d at 650. Only five percent of persons exposed to the chemical "will acquire permanent asthma." Id., 851 S.W.2d at 655. Without any analysis beyond the conclusion, Ray nevertheless held that there was thus sufficient evidence from which the jury could find that the chemical was defective and unreasonably dangerous. Ibid. Although Ray provides company for Green's argument, we must turn to Wisconsin law for a governing rationale to determine whether, in Wisconsin, a product can be defective if it adversely affects some but not all users.

¶ 9. The essential rationale behind § 402A was expressed in Comment c:

On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.

Restatement (Second) of Torts § 402A cmt. c (1965). Although Dippel did not adopt the comments to § 402A as substantive law in this state, it did note that the comments "can be helpful in construing the rule when applying it to an individual factual situation." Dippel, 37 Wis. 2d at 459, 155 N.W.2d at 63. Significantly, Dippel's rationale for adopting strict-liability in tort for Wisconsin essentially mirrors Comment c. Dippel explained that the movement from the common law's requirement that there be privity of contract between a seller and a consumer before the consumer could recover for injuries suffered because of the seller's product, was predicated on a desire to spread the risk of injury in an increasingly complex and dangerous commercial and industrial society:

Without belaboring its development it can now be said that the majority of the jurisdictions of the United States no longer adhere to the concept of no liability without privity of contract. The reason, which has been reiterated most often, is that the seller is in the paramount position to distribute the costs of the risks created by the defective product he is selling. He may pass the cost on to the consumer via increased prices. He may protect himself either by purchasing insurance or by a form of self-insurance. In justification of making the seller pay for the risk, it is argued that the consumer or user has the right to rely on the apparent safety of the product and that it is the seller in the first instance who creates the risk by placing the defective product on the market.

Id., 37 Wis. 2d at 450-451, 155 N.W.2d at 58 (footnote omitted). The product that causes injury, of course, must be "defective" before the risk may be spread and liability imposed; to impose liability for a non-defective product — a product that causes injury only because of the idiosyncratic response óf a particular plaintiff — would be to impose "absolute," not "strict," liability. This, as we have already seen, we may not do. See id., 37 Wis. 2d at 460, 459 N.W.2d at 63.

¶ 10. It can be said loosely that any product that hurts a person is "defective" insofar as that person is concerned. But, as noted, this is not the test under § 402A and Dippel. See Adelman-Tremblay, 859 F.2d at 522. There must be something more, as explained by § 402A, cmt. i, which was adopted by Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis. 2d 326, 330-331, 230 N.W.2d 794, 797-798 (1975) (see Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d 882, 893, 275 N.W.2d 915, 920 (1979), characterizing Vincer's reference to comment i as the comment's adoption). Comment i explains:

■ The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by "unreasonably dangerous" in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

(Emphasis added.) This comment teaches us two things.

¶ 11. First, a product is "defective" if it is flawed beyond the contemplation of the ordinary consumer of that product. See Sumnicht, 121 Wis. 2d at 367-368, 360 N.W.2d at 15 ("Wisconsin is committed to the consumer-contemplation test for determining whether a product is defective."). Thus, conversely, " '[a] product is not in a defective condition when it is safe for normal handling and consumption.'" Id., 121 Wis. 2d at 368, 360 N.W.2d at 15 (quoting Restatement (Second) of Torts § 402A cmt. g). Second, a product is "unreasonably dangerous" if the danger is not apparent to the ordinary consumer of that product. See id., 121 Wis. 2d at 368-370, 360 N.W.2d at 15-16. As summarized by Sumnicht:

"Thus, the test in Wisconsin of whether a product contains an unreasonably dangerous defect depends upon the reasonable expectations of the ordinary consumer concerning the characteristics of this type of product. If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would not be unreasonably dangerous and defective. This is an objective test and is not dependent upon the knowledge of the particular injured consumer, although his knowledge may be evidence of contributory negligence under the circumstances."

Id., 121 Wis. 2d at 370, 360 N.W.2d at 16 (quoting Vincer, 69 Wis. 2d at 332, 230 N.W.2d at 798).

¶ 12. Applying the principles of Wisconsin's strict-liability law to the facts of this case (giving to Green the benefit of all inferences in favor of the jury's verdict, which, as noted, we must), and bearing in mind that whether a product is defective so as to be unreasonably dangerous must be assessed on a "case-by-case basis," see Sumnicht, 121 Wis. 2d at 368, 360 N.W.2d at 15, it is evident that when Green used Smith & Nephew's latex gloves no "ordinary consumer" of latex gloves contemplated that they or the proteins they contained would trigger and cause the reactions Green suffered. Green has thus proven that the gloves are "defective." Additionally, we perceive no need that the "danger," if "unreasonable" (that is, if a peril is not "contemplated by the ordinary consumer"), be equally dangerous to every consumer, as long as the "danger" is not purely idiosyncratic to the injured plaintiff. Green has passed this hurdle as well.

¶ 13. Green introduced evidence that Smith & Nephew's latex gloves could be dangerous to between five- and seventeen-percent of health-care workers using latex gloves; according to a physician specializing in immunology and allergy called by Green, those health-care workers "show evidence of sensitization to natural rubber latex." Another of Green's witnesses, Gordon Sussman, M.D., who practices internal medicine with a specialty in allergy and clinical immunology, testified that he has 215 patients who are allergic to latex, 74% of whom were health-care workers who suffered their allergic reactions because of latex gloves. Additionally, one of Smith & Nephew's witnesses, a professor of medicine at the UCLA School of Medicine and a specialist in immunology and allergy, agreed that "latex allergy is an occupational hazard of nursing," and that "registered nurses are potentially at high risk for latex allergy because of their occupational exposure to latex." Nurses and other health-care workers who use latex gloves on their jobs are, of course, target consumers for those gloves. Dr. Sussman also told the jury that although Green was not "susceptible or predisposed" to latex allergy, "exposing her immune system to high allergen/high protein gloves caused her latex allergy," that is, triggered it, and that he believed that "the likelihood of that happening if she was [sic] exposed to less allergen, low allergen/low protein powder-free gloves is very remote."

¶ 14. We agree with the trial court that the jury could have reasonably concluded that Smith & Nephew's latex gloves were defective and unreasonably dangerous, within the meaning of § 402A and Dippel. This comports with the rationale behind Dip-pel's adoption of strict-liability in order to spread the risk of injury from its former focus on the particular person hurt to society as a whole. See Dippel, 37 Wis. 2d at 450-451, 155 N.W.2d at 58.

B. Jury Instruction

¶ 15. Smith & Nephew claims that the trial court erroneously instructed the jury. A "trial court has wide discretion in choosing the language of jury instructions and if the instructions given adequately explain the law applicable to the facts, that is sufficient and there is no error in the trial court's refusal to use the specific language requested by the defendant." State v. Herriges, 155 Wis. 2d 297, 300, 455 N.W.2d 635, 637 (Ct. App. 1990). Further, a trial court's instructions to the jury must be read as a whole: "If the overall meaning is a correct statement of the law, then any erroneous part of the instruction is harmless and not grounds for reversal." State v. Petrone, 161 Wis. 2d 530, 561, 468 N.W.2d 676, 688 (1991), cert. denied, 502 U.S. 925. It is against this background that we assess Smith & Nephew's claim of trial-court error.

¶ 16. Smith & Nephew argues that the trial court erred in modifying the pattern jury instruction found in Wis JI — Civil 3260 (1999) from: A product is defective if it is "not reasonably fit for the ordinary purposes for which such product was sold and intended to be used" to: "A product is said to be defective when it is in a condition not contemplated by the ordinary user or consumer which is unreasonably dangerous to the ordinary user or consumer." The trial court's instruction was, however, an accurate statement of Wisconsin law, and is essentially a clone of Comment g to § 402A, which was adopted by Vincer. See Sumnicht, 121 Wis. 2d at 368, 360 N.W.2d at 15. Comment g explains:

" 'Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.'"

Ibid, (quoting § 402A cmt. g). Moreover, Smith & Nephew's related complaint that the trial court erroneously adopted the consumer-contemplation test is also without merit. See Sumnicht, 121 Wis. 2d at 368, 360 N.W.2d at 15 ("Wisconsin is committed to the consumer-contemplation test for determining whether a product is defective.").

¶ 17. Smith & Nephew also claims in its appellate brief that the trial court "improperly instructed the jury that [Smith & Nephew] could be held liable even if it did not know and 'could [not] have known' of the risk allegedly presented by its gloves." (First bracketing by us; second bracketing by Smith & Nephew.) Smith & Nephew's claim is without merit. First, as we have already seen, a manufacturer is liable for a defective product that is unreasonably dangerous even though it " 'has exercised all possible care in the preparation and sale of his product.'" Dippel, 37 Wis. 2d at 459, 155 N.W.2d at 63 (quoting § 402A(1)). Second, "[t]he liability imposed is not grounded upon a failure to exercise ordinary care with its necessary element of foreseeability." Id., 37 Wis. 2d at 461, 155 N.W.2d at 64; Glassey v. Continental Ins. Co., 176 Wis. 2d 587, 604, 500 N.W.2d 295, 303 (1993) ("Foreseeability is not an element considered in strict products liability claims."). The trial court did not err in instructing the jury.

C. Expert Testimony.

¶ 18. Smith & Nephew claims that the trial court erred in permitting the jury to hear the opinions of two witnesses called by Green: Paul Cacioli, Ph.D., and Gordon Sussman, M.D. We discuss these contentions in turn.

1. Paul Cacioli.

¶ 19. Cacioli holds a Ph.D. degree as a chemist, and was employed as a Director of Research and Development and Technical Affairs by the company that purchased Smith & Nephew's latex-glove business in 1995. He was identified to the jury by the trial court as "an expert on glove manufacturing process." The trial court read to the jury a summary of excerpts from Caci-oli's deposition testimony, noting that Cacioli believed that the latex gloves manufactured by Smith & Nephew had "high" protein levels and that Cacioli "considered these levels unsafe and unacceptable." Additionally, the trial court told the jury that, "in Dr. Cacioli's opinion, a lower protein glove is a safer glove." Cacioli, however, had, in his deposition, specifically disclaimed any expertise in that area:

We're very much in the dark about what is safe and what is unsafe. There has been no definition at this point in time to us as to what is considered to be safe, and there are conflicting opinions, as well, from knowledgeable people in this area. I can only make that statement from what I believe is unsafe, and I'm not an expert in that area, so I'd just like to clarify that.

Green argued to the trial court that Cacioli's opinion that Smith & Nephew's gloves were not safe was admissible because Cacioli helped decide how to manufacture the latex gloves with lower levels of protein than were in Smith & Nephew's gloves:

You don't have to be a doctor to know whether a product is safe or unsafe. That is not a medical opinion. That's a manufacturing quality control opinion. You don't have to be a doctor to say safe or not safe.
He's a manufacturing expert knowing what's going on in the field, knowing the manufacturing practice, knowing what's going on with respect to sensitization problems [and] can better than anybody talk about whether a product is safe or not.

The trial court apparently adopted this rationale, because none other appears of record.

¶ 20. " 'A trial court's decision to admit or exclude expert testimony is a discretionary determination that is made pursuant to Rule 901.04(1), Stats.' The determination, however, must have 'a reasonable basis' and be made 'in accordance with accepted legal standards and in accordance with the facts of record.'" James v. Heintz, 165 Wis. 2d 572, 578-579, 478 N.W.2d 31, 34 (Ct. App. 1991) (citations omitted). We believe that the trial court erred in its legal analysis of the admissibility of Cacioli's testimony that the Smith & Nephew gloves were not safe.

¶ 21. Unlike in the federal system, where the trial court has a significant "gatekeeper" function in keeping from the jury expert testimony that is not reliable, see, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (scientific expert testimony); Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999) (expert testimony in general), the trial court's gatekeeper role in Wisconsin is extremely limited:

The rules in regard to the admission of expert testimony are also clear. The Wisconsin Rule of Evidence, sec. 907.02, Stats., Testimony by experts, provides that, if scientific or specialized knowledge will assist the trier of fact to determine a fact in issue, a qualified expert may testify. As the commentary to Rule 907.02 points out, under Rule 907.02, expert testimony is admissible if relevant and will be excluded only if the testimony is superfluous or a waste of time.

State v. Walstad, 119 Wis. 2d 483, 516, 351 N.W.2d 469, 486 (1984). Under Wisconsin law, scientific testimony is admissible if it is " 'an aid to the jury' or 'reliable enough to be probative.'" Id., 119 Wis. 2d at 519, 351 N.W.2d at 487 (citation omitted). An opinion for which there is no proper foundation — for which the witness has no, in the words of Wis. Stat. Rule 907.02, "scientific, technical, or other specialized knowledge" — is not "reliable enough to be probative." Simply put, the witness must be first qualified as an expert under Rule 907.02 before he or she can give any opinion within the asserted area of expertise:

The fundamental determination of admissibility comes at the time the witness is "qualified" as an expert. In a state such as Wisconsin, where substantially unlimited cross-examination is permitted, the underlying theory or principle on which admissibility is based can be attacked by cross-examination or by other types of impeachment.

Walstad, 119 Wis. 2d at 518-519, 351 N.W.2d at 487. See also State v. Peters, 192 Wis. 2d 674, 690, 534 N.W.2d 867, 873 (Ct. App. 1995) ("Once the relevancy of the evidence is established and the witness is qualified as an expert, the reliability of the evidence is a weight and credibility issue for the fact finder and any reliability challenges must be made through cross-examination or by other means of impeachment.").

¶ 22. There is nothing in the record here to indicate that Cacioli had any expertise to assess whether gloves with high protein levels were safe or unsafe, except from what he either read or was told by others. Indeed, as we have seen, Cacioli specifically denied that he could give an expert opinion as to whether high-protein gloves were safe or unsafe. Certainly, if a witness can establish his or her expertise by his or her own testimony, see James, 165 Wis. 2d at 579, 478 N.W.2d at 34, the witness can also disavow any expertise by his or her own testimony.

¶ 23. As noted, the basis for the admission of Cacioli's opinion on the safety of Smith & Nephew's gloves was his role in deciding to lower the protein levels and eliminate the powder in the gloves made by the company that purchased Smith & Nephew's glove-making operation. This was Green's syllogism: Cacioli is an expert in the chemistry of making latex gloves, he wanted to make gloves with lower protein levels than the gloves made by Smith & Nephew because he believed gloves with lower protein levels were safer, thus he could give an expert opinion that gloves with high protein levels are less safe than gloves with low protein levels. This argument implicates Wis. Stat. Rule 907.03, which permits an expert witness to rely on inadmissible data if the data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." But this rule only permits the witness to rely on otherwise inadmissible data (here, the opinions of unknown persons who did not testify) if the expert witness is testifying within his or her expertise. See Lemberger v. Koehring Co., 63 Wis. 2d 210, 218, 216 N.W.2d 542, 546 (1974). A simple example will illustrate this point. If Albert Einstein, an admitted expert on relativity, believes that in working out his theories on a chalk board he should use Brand X of chalk because he has heard that Brand X contains less of a potentially harmful substance than does Brand Y, Einstein's opinion about chalk safety would not be admissible in a products-liability lawsuit to prove that Brand Y chalk was less safe than Brand X — the safety of chalk is not within his area of expertise. As Cacioli admitted, his opinion on glove safety was outside his area of expertise. The trial court should not have received his opinion on the safety of latex gloves.

¶ 24. Although the trial court erred in receiving Cacioli's opinion about the relative safety of latex gloves, this does not end our inquiry. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Wis. Stat. Rule 901.03(1). This requires that we first determine whether the improperly admitted evidence was prejudicial, and, if so, we must weigh the improperly admitted evidence "against the totality of the sufficient credible evidence supporting the verdict." Sumnicht, 121 Wis. 2d at 377, 360 N.W.2d at 20.

¶ 25. There is little doubt but that Cacioli's testimony that his company's latex gloves were safer than those made by Smith & Nephew because of their lower levels of protein was prejudicial to Smith & Nephew; it went to the heart of Green's case, and the jury should not have heard it. But the jury also heard that opinion from other witnesses who were qualified to give it. As noted earlier in Part IIA of this opinion, one of Smith & Nephew's witnesses, a professor of medicine at the UCLA School of Medicine and a specialist in immunology and allergy, agreed that "latex allergy is an occupational hazard of nursing," and that "registered nurses are potentially at high risk for latex allergy because of their occupational exposure to latex." Further, the jury learned that a joint statement issued by the American Academy of Allergy, Asthma and Immunology and the American College of Allergy, Asthma and Immunology noted that "Medical devices, principally latex gloves, are the largest single source of exposure" to "latex rubber proteins," which it called "potent allergens." The joint statement recommended, among other precautions, that "[o]nly low allergen latex gloves should be purchased and used," and, additionally, that "[o]nly powder-free latex gloves should be purchased and used." In light of this evidence, we cannot say that receipt of Cacioli's opinion affected adversely a "substantial right" of Smith & Nephew, especially since Smith & Nephew's attorney told the jury that Cacioli said that he was "no expert."

2. Gordon Sussman.

¶ 26. Smith & Nephew also complains that the trial court should not have permitted Dr. Sussman to tell the jury that in his opinion gloves with low protein levels were safer than gloves whose protein levels were high. Smith & Nephew argues that the rational underpinnings to Dr. Sussman's opinion were either lacking or, indeed, contradicted his opinion. We need not spend too much space on this argument because, as we have noted, rmder Wisconsin law it is the jury's responsibility, not the trial judge's duty, to assess the reliability of an expert's opinions. Simply put, once the proponent of a witness's expert opinion establishes that the witness is, in fact, an expert under Wis. Stat. Rule 907.02, the reliability of that witness's opinions is something that the jury has to assess. See Peters, 192 Wis. 2d at 690, 534 N.W.2d at 873. Smith & Nephew conceded during oral argument that Dr. Sussman was testifying within the scope of his Rule 907.02 expertise, and was, during the trial, given wide latitude in its attempt to impeach Dr. Sussman's opinions.

D. Evidence of Manufacturing Change.

¶ 27. Smith & Nephew claims that the trial court erroneously permitted Green to tell the jury that the company to which Smith & Nephew sold its glove-making operations in 1995 had, shortly thereafter, changed the way it made the gloves so as to reduce the protein levels in the latex gloves. We disagree.

¶ 28. Evidence is generally admissible if it is "relevant." Wis. Stat. Rule 904.02. Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Wis. Stat. Rule 904.01. The trial court held the evidence to be relevant. The trial court correctly applied the law.

¶ 29. Although, as noted earlier, a manufacturer may be held strictly liable for injuries caused by a product that is defective and unreasonably dangerous even though the manufacturer " 'has exercised all possible care in the preparation and sale of his product,'" Dippel, 37 Wis. 2d at 459, 155 N.W.2d at 63 (quoting § 402A(1)), and although "[a] product may be defective and unreasonably dangerous even though there are no alternative, safer designs available," Sumnicht, 121 Wis. 2d at 371, 360 N.W.2d at 17, evidence of a change in manufacturing process or design is, nevertheless, "admissible" in a strict-liability case because it "is not without probative value," Chart v. General Motors Corp., 80 Wis. 2d 91, 100, 258 N.W.2d 680, 683 (1977). We are bound by Chart. See State v. Lossman, 118 Wis. 2d 526, 533, 348 N.W.2d 159, 163 (1984). Indeed, although evidence of a feasible way to eliminate or reduce a danger is not an element of a strict-liability claim, it tends to show that a manufacturer not using such a method to eliminate or reduce a danger presented by its product has made a product that is unreasonably dangerous.

¶ 30. Relevant evidence may, of course, be excluded if, among other reasons, "its probative value is substantially outweighed by the danger of unfair prejudice." Wis. Stat. Rule 904.03. Smith & Nephew has not demonstrated, however, beyond its assertion that it would have preferred that the jury not learn of the change in manufacturing process, how the trial court erroneously exercised its broad discretion in concluding that evidence of what Smith & Nephew's successor did to reduce the protein levels in the latex gloves should not be excluded under Wis. Stat. Rule 904.03.

E. Damage Award.

¶ 31. The jury awarded one million dollars to Green. Of that award, it specified that $584,000 was for past and future pain, suffering, and disability. Smith & Nephew claims that this aspect of the award is excessive and that the trial court erred in not either ordering a remittitur or a new trial. We disagree.

¶ 32. "If there is any credible evidence which under any reasonable view supports the jury finding as to the amount of damages, especially where the verdict has the approval of the trial court, this court will not disturb the finding unless the award shocks the judicial conscience." Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 446, 405 N.W.2d 354, 374 (Ct. App. 1987).

¶ 33. There was substantial evidence that Green suffered horrendous pain and suffering from what the jury could have reasonably concluded were injuries caused by Smith & Nephew's gloves. Her initial reactions to the gloves included, as she testified, "red, cracked, sore, peeling hands at work." Then, she developed cold-like symptoms that would not only not go away but developed into serious breathing difficulties:

I was having trouble breathing. I was getting short of breath. I started coughing and my throat started getting tight where I wasn't speaking right; and after a few seconds or a few minutes, I waited, and it was actually getting worse, where I couldn't even talk to my patient.

¶ 34. Green went home, and, when her condition did not improve, she went to a hospital emergency room, where she was given a number of medications. After five or six hours, she improved enough to go home. Her symptoms reappeared until one day at work she again could not breathe. She told the jury that she was frightened because "it happened once before, and I couldn't get my air." Again she went to the hospital, where she stayed for five days.

¶ 35. Ultimately, Green was diagnosed with asthma. Her breathing problems continued, and she was hospitalized for more tests. One of the tests, a bronchoscopy, involved the insertion of a tube into the lungs. Green told the jury what that was like:

And when he was putting the tube down my airway, I wasn't — I was increasingly having more difficulty breathing and they inject a little bit of saline to take their samples for the lab samples, and it felt like I was drowning, and he said "This will be done soon. This will be done soon", and it just kept getting worse. I was getting less and less air, and he decided to quit.
When they started to pull the scope out, he couldn't pull the tube out, and I couldn't breathe until he pulled it out, and I made a horrifying sound trying to get my air, and then they rushed me to the Intensive Care Unit.

¶ 36. Green no longer works at the healthcare job she once held, and told the jury that as a result of her sensitization she has "to watch where I go, what I purchase, what I eat, people I'm with, things that I do." She related that she "can't eat out much or buy things that I don't know about, because I don't know that they weren't prepared with people using latex gloves." She explained: "You can walk through the mall nowadays, and the food counters at the malls, they're wearing latex gloves. They're wearing them at deli's [sic], restaurants. I can't take that chance." She wears a medical-alert bracelet and carries an epinephrine injection kit in her purse in case she gets a reaction that prevents her from breathing. She summed up for the jury her view of her future: "I don't have much choice. I have to live this way. I have to watch what I do, watch where I go, watch what I eat."

¶ 37. At the time of trial, Green had a life-expectancy of almost 50 years. We cannot say in light of all of her suffering and in light of the substantial detour that her life and her lifestyle has had to take that the jury's assessment of $584,000 for past and future pain, suffering, and disability shocks the judicial conscience.

By the Court. — Judgment affirmed.

       Latex allergy among the general population is rare. We agree with Green, however, that the target group of "users or consumers" as expressed in § 402A of Restatement (Second) of Torts are those persons who either use or consume the product, not persons who either never use the product or use it rarely.

       There are other decisions in product-defect cases involving reactions that affect adversely some but not all consumers, but they do not discuss the precise issue presented here, namely whether such non-pandemic allergic reactions can support a finding that the product is defective and unreasonably dangerous as those terms are used in § 402A of the RESTATEMENT (SECOND) OF Torts. See, e.g., West v. Johnson & Johnson Prods., Inc., 174 Cal. App. 3d 831 (Cal. Ct. App. 1985) (tampon caused toxic-shock syndrome); Adkins v. GAF Corp., 706 F. Supp. 559, 561-562, 564 (S.D. Ohio 1988) (exposure to asbestos can cause asbestosis, but "[n]ot every exposure" does so; "incidence of asbestosis associated with asbestos exposure depends on many different factors, including the intensity of exposure, length of exposure, individual characteristics of the exposed individual, and other factors"; asbestos sold by asbestos-mining company "was in a defective condition and unreasonably dangerous in that it was more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner"), aff'd in part, rev'd in part, cause remanded, 923 F.2d 1225 (6th Cir. 1991); Simeon v. Doe, 618 So. 2d 848, 849-851 (La. 1993) (no liability to consumer injured by adverse reaction to bacteria-containing oysters; bacteria toxic only to those with "chronic underlying liver and kidney diseases and other conditions causing, or capable of causing, impaired immune responses": "the 'defect' is really found in the person rather than the product, much in the same way that sugar is harmful only when used by someone with diabetes") (applying principle similar to that underlying § 402A of RESTATEMENT (SECOND) OF Torts).

       During World War II, German bombers salted England with haphazard, indiscriminate destruction. Although the bombs were potentially dangerous to all, they only destroyed homes and businesses upon or near which they landed. This was essentially a random twirl of the wheel. Winston S. Churchill, then the British prime minister, recognized that it was unfair for British society to place the entire burden of the destruction on those unlucky enough to be hit: He wrote of his solution:
      Another time I visited Margate. An air raid came upon us, and I was conducted into their big tunnel, where quite large numbers of people lived permanently. When we came out, after a quarter of an hour, we looked at the still-smoking damage. A small restaurant had been hit. Nobody had been hurt, but the place had been reduced into a litter of crockery, utensils, and splintered furniture. The proprietor, his wife, and the cooks and waitresses were in tears. Where was their home? Where was their livelihood? Here is a privilege of power. I formed an immediate resolve. On the way back in my train I dictated a letter to the Chancellor of the Exchequer laying down the principle that all damage from the fire of the enemy must be a charge upon the State and compensation be paid in full and at once. Thus the burden would not fall alone on those whose homes or business premises were hit, but would be borne evenly on the shoulders of the nation.
      Winston S. Churchill, Their Finest Hour 349 (1949). In essence that is what § 402A and Dippel have done with respect to those who suffer randomly from the imperfections inherent in a complex and dangerous society that, although it brings many benefits to all, also inflicts harm on some.


author: SNYDER, J.

text:
    David Ginder and Kathleen Ginder, Plaintiffs-Respondents, v. General Casualty Company of Wisconsin, Defendant-Appellant.

    Court of Appeals

      No. 99-1550.

      Submitted on briefs March 10, 2000.

    Decided August 2, 2000.

    2000 WI App 197
    (Also reported in 617 N.W.2d 857.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert F. Johnson and John M. Swietlik, Jr. of Cook & Franke, S.C. of Milwaukee.
    On.behalf of the plaintiffs-respondents, the cause was submitted on the brief of Virginia M. Antoine of Habush, Habush, Davis & Rattier, S.C. of Milwaukee.
    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review denied.

   SNYDER, J.

¶ 1. General Casualty Company of Wisconsin appeals from an order granting David and Kathleen Ginder's (the Ginders) motion for declaratory judgment finding $200,000 of underinsured motorist (UIM) coverage available to the Ginders. General Casualty contends that UIM coverage is not triggered because its policy precludes stacking of multiple coverages in determining whether a tortfeasor's vehicle qualifies as an "underinsured motor vehicle." We reject General Casualty's argument because its policy, through a provision entitled "split limit liability," calls for aggregating benefits in calculating its limit of liability. We therefore affirm the circuit court's order.

BACKGROUND

¶ 2. In April 1992, General Casualty issued a policy to the Ginders providing automobile insurance with UIM coverage limits of $100,000 for each person and $300,000 for each accident. On July 13, 1992, David Ginder was injured in an automobile accident with Jason Charneski. At the time of the accident, Charneski had insurance with American Standard Insurance Co., which provided liability coverage with bodily injury limits of $100,000 for each person and $300,000 for each accident. American Standard settled the Ginders' claims for the policy limits of $100,000. The Ginders then sought UIM benefits under the General Casualty policy which provided coverage for the automobile involved in the accident and another vehicle. The Ginders asserted that they should be able to stack the UIM coverage for both vehicles, resulting in UIM coverage with limits of $200,000.

¶ 3. General Casualty denied the Ginders' claim because it believed the Charneski vehicle did not meet the definition of an "underinsured motor vehicle" within the policy. The Ginders then filed this action. Both parties moved the circuit court for a declaratory judgment on the issue of coverage. At a March 1999 hearing, the court found that the policy was ambiguous as to ÜIM coverage and that the ambiguity should be construed in favor of the Ginders. The court concluded that $200,000 was available to the Ginders in UIM benefits. General Casualty appeals.

DISCUSSION

¶ 4. The interpretation of an insurance policy is a question of law which we decide de novo. See Filing v. Commercial Union Midwest Ins. Co., 217 Wis. 2d 640, 644, 579 N.W.2d 65 (Ct. App.), review denied, 220 Wis. 2d 366, 585 N.W.2d 158 (Wis. July 24, 1998) (No. 97-2136). Any ambiguity in the policy language is to be construed in favor of coverage. See Cardinal v. Leader Nat'l Ins. Co., 166 Wis. 2d 375, 382, 480 N.W.2d 1 (1992). Where language in an insurance contract is unambiguous, we simply apply the policy language to the facts of the case. See Grotelueschen v. American Family Mut. Ins. Co., 171 Wis. 2d 437, 447, 492 N.W.2d 131 (1992). In doing so, we give the policy terms their plain meaning — the meaning a reasonable person in the position of the insured would give them. See id. The interpretation of UIM provisions should be consistent with the purpose of UIM coverage which is to protect an insured where a tortfeasor has liability coverage inadequate in amount for the injuries caused. See Taylor v. Greatway Ins. Co., 2000 WI App 64, ¶ 8, 233 Wis. 2d 703, 608 N.W.2d 722, review granted, 237 Wis. 2d 251, 616 N.W.2d 114 (Wis. May 23, 2000) (No. 99-1329).

¶ 5. We begin by looking at the terms of the General Casualty policy. The policy defines an "underinsured motor vehicle" as

a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage.

This is the same UIM definition reviewed in Smith v. Atlantic Mutual Insurance Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990), which our supreme court determined was unambiguous.

¶ 6. Next, the declarations page states that "insurance is provided where a premium is shown for the coverage." The declarations page then provides the following liability limits:

COVERAGE LIMIT OF LIABILITY PREMIUM
UNIT 1 UNIT 2
SPLIT LIMIT LIABILITY $110,000 EA PERSON
BODILY INJURY $300,000 EA ACCIDENT 118.00 90.00
UNDERINSURED MOTORIST $100,000 EA PERSON
BODILY INJURY $300,000 EA ACCIDENT 20.00 20.00
TOTAL BY UNIT 558.00 438.00
TOTAL TERM PREMIUM $996.00

¶ 7. General Casualty argues that the Charheski vehicle is not an underinsured motor vehicle because Chameski's liability limits are equal to General Casualty's UIM coverage limits for each vehicle. General Casualty relies in large part on Krech v. Hanson, 164 Wis. 2d 170, 173, 473 N.W.2d 600 (Ct. App. 1991). In that case, Krech was injured in a vehicle driven by Hanson and insured with liability limits of $100,000 per person. See id. at 172. Krech was covered by a policy that insured two vehicles and included UIM coverage limits of $100,000 per person. See id. Like the Ginders' policy, the policy in Krech defined "underin-sured motorist vehicle" as "a motor vehicle for which there is a bodily injury policy or liability bond available at the time of the car accident which provides bodily injury liability limits less than the limit of liability for this coverage." Id. at 172 (emphasis omitted).

¶ 8. Krech requested that this court stack the $100,000 UIM coverage for each vehicle on his policy so that Hanson's vehicle would qualify as an underin-sured motor vehicle. See id. We rejected this approach because, before stacking could occur, we had to determine if Hanson's vehicle qualified as an underinsured vehicle. See id. at 173. In making this determination, we first noted that although the two insured vehicles were'listed on the same document, there were two separate policies because separate premiums were charged for each vehicle. See id. Since neither policy separately provided indemnification against the "same loss," We determined that the benefits could not be stacked. See id. We then compared the policy's $100,000 UIM coverage for each vehicle with Hanson's $100,000 liability coverage and concluded that because the coverages were the same, Hanson's vehicle was not an underinsured vehicle. See id. at 176; see also Smith, 155 Wis. 2d at 811 (holding that UIM coverage only applies "when the owner or driver of the other vehicle maintains a policy with a lower coverage than the insured").

¶ 9. At first blush, Krech appears to control. Like Krech, the General Casualty policy contains the same definition of "underinsured motor vehicle." In addition, because the General Casualty declarations page includes two separate premiums for two $100,000 limits on UIM coverage, Krech informs us that there are essentially two separate policies. See Krech, 164 Wis. 2d at 173. Further, Krech instructs that before we consider stacking UIM benefits, we are to compare the tortfeasor's liability coverage with each policy's UIM coverage. See id. at 176. In this case, Charneski's insurance provides $100,000 in liability coverage and each General Casualty policy likewise provides $100,000 in UIM coverage. Because these amounts are the same, General Casualty would have us conclude that the Chameski vehicle is not an underinsured motor vehicle. See id. at 176.

¶ 10. This case is not the same as Krech, however. Unlike Krech, the Ginders' declarations page makes reference to "split limit liability" in setting forth the policy's coverage. The declarations page, however, does not define or further address the meaning of "split limit liability." Because this phrase is not explained in the policy's declarations, we are prompted to consider the terms of the policy.

¶ 11. The UIM coverage section of the policy contains a provision regarding "split limit liability." This provision states in pertinent part:

Split Limit Liability. If Split Limit Liability is provided in the Declarations:
A. If "bodily injury" is sustained in an accident by you or any "family member;"
1. Our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of "bodily injury" sustained by any one person in any such accident is the sum of the limits of liability shown in the Declarations for each person for Underinsured Motorist Coverage;
2. Subject to the maximum limit for each person described in paragraph 1. above, our maximum limit of liability for all damages arising out of "bodily injury" resulting from any one accident is the sum of the limits of liability shown in the Declarations for each accident for Underinsured Motorist Coverage .... (Emphasis added.)

This language explains that General Casualty's liability limit pertaining to any one person in an accident is the sum of the liability limits shown in the declarations page for each person for UIM coverage. For the entire accident, the liability limit includes the sum of liability limits found on the declarations page for each accident for UIM coverage.

¶ 12. We now apply the split limit liability provision to our underinsured motor vehicle determination. First, the definition of "underinsured motor vehicle" requires that we compare the tortfeasor's liability limit to "the limit of liability for this coverage." Next, the declarations page indicates that the Ginders' coverage provides a split limit liability policy with $100,000 UIM coverage per person and $300,000 UIM coverage per accident for two separate vehicles. Because General Casualty's UIM liability limit for one person is the sum of the liability limits shown for each person, and because there is coverage for two vehicles, the sum total is $200,000.

¶ 13. We next compare Charneski's $100,000 liability limit to General Casualty's $200,000 UIM coverage limit. Given that General Casualty's UIM coverage is greater than Charneski's, his vehicle is deemed an "underinsured motor vehicle" and General Casualty's UIM coverage is therefore triggered.

¶ 14. General Casualty objects to any reliance upon the split limit liability provision because that section refers to "the maximum limit of liability," while the "underinsured motor vehicle" definition simply makes reference to "the limit of liability." We do not detect any substantive difference between these phrases. First, General Casualty's policy does not suggest that the split limit liability policy provision should not be used in applying the definition of "underinsured motor vehicle." The policy also does not offer any definitional explanation to differentiate these phrases. Second, while the split limit liability provision states that "the maximum limit of liability" includes damages for care, loss of services or death arising out of bodily injury, the "underinsured motor vehicle" definition also refers to "bodily injury" liability. Although "the maximum limit of liability" language is more descriptive, there is no indication that it provides for greater coverage than the "limit of liability" language. Finally, we are persuaded that a reasonable person in the position of the insured would interpret these phrases as being synonymous.

¶ 15. General Casualty next claims that its policy specifically precludes stacking of the UIM liability limits based upon the number of vehicles insured. Within the split limit liability provision, the policy states that "[t]he maximum limit of liability is the most we will pay regardless of the number of... 3. Vehicles or premiums shown in the Declarations." This language apparently restricts General Casualty's liability limit to its coverage for a single vehicle rather than to the sum of liability limits for all insured vehicles. This provision, therefore, creates a conflict with the split limit liability's statement that the maximum limit of liability for one person is the sum of the limits of liability for each person in the declarations page for UIM coverage. Such a conflict renders ambiguous General Casualty's liability limit for UIM coverage. Because we construe ambiguities in favor, of coverage, our conclusion that the Ginders have $200,000 in available UIM benefits remains.

¶ 16. In sum, this case is controlled by the terms of General Casualty's declarations page and policy. Unlike Krech, the declarations page here uses the phrase "split limit liability" which means that General Casualty's limit of liability for any one person is the sum of the limits of liability shown in the declarations page for each person for UIM coverage. We interpret this language as permitting the aggregation of benefits in determining General Casualty's limit of liability. We therefore conclude that the circuit court's decision finding UIM coverage was proper.

By the Court. — Order affirmed.


author: NETTESHEIM, J.

text:
    In the Interest of Xena X. D.-C., a Child Found To Be In Need of Protection or Services: State of Wisconsin, Petitioner-Respondent, v. Tammy L. D., Respondent-Appellant.
    Court of Appeals

      No. 99-1962.

      Submitted on briefs July 13, 2000.

    Decided August 2, 2000.

    2000 WI App 200
    (Also reported in 617 N.W.2d 894.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of William J. Grogan of Appleton.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Karen L. Seifert, assistant corporation counsel.
    Before Brown, P. J., Nettesheim and Anderson, JJ.
   NETTESHEIM, J.

¶ 1. Tammy L. D. appeals from a CHIPS dispositional order of the juvenile court that placed her daughter Xena X. D.-C. in foster care following an earlier finding that Xena was in need of protection or services. Tammy was not represented by advocacy counsel during the CHIPS proceedings. Her chief complaint is that the juvenile court did not exercise its discretion whether to appoint an attorney to represent her. We agree. We reverse and remand with directions that the juvenile court consider Tammy's request for court-appointed counsel. Depending on the outcome of that proceeding, the court shall appoint counsel for Tammy and conduct a new trial, or the court shall reenter the dispositional order.

¶ 2. Tammy also complains that the juvenile court appointed a guardian ad litem for her without first determining her competency. We reject this argument.

Facts and Procedural History

¶ 3. We set out the facts and history of this case in some detail. During the early morning hours of April 10, 1999, the City of Neenah Police Department had a series of contacts with Tammy. Xena was present with Tammy during all of these contacts. The contacts resulted from complaints to the police from Tammy herself, her boyfriend and a neighbor. During these contacts, the police observed Tammy to be irrational, emotionally upset and intoxicated. In addition, Tammy's apartment was in disarray and, during one contact, the police observed a grease fire on the stove. After the third contact, the police took Xena into protective custody and a juvenile court intake worker executed a request for Xena's temporary physical custody. Tammy was also taken into custody for evaluation.

¶ 4. On April 12, 1999, Judicial Court Commissioner Daniel J. Bissett conducted a hearing on the request for Xena's temporary physical custody. Tammy appeared without counsel. At the outset of the hearing, the commissioner advised Tammy of her various rights, including the right to an attorney. However, the commissioner qualified this explanation by stating that the public defender's office would not provide representation and that if Tammy desired representation, she would have to hire her own attorney. Tammy responded that she did not have the money to hire an attorney. The commissioner responded, "That wasn't the question. You understand that you have the right to have an attorney?" Tammy responded that she understood.

¶ 5. At the conclusion of the hearing, Commissioner Bissett directed that Xena remain in temporary physical custody and ordered Tammy to undergo alcohol and drug assessment and a psychological evaluation.

¶ 6. Doctor Allen Hauer conducted the psychological examination. In his report to the court, Hauer noted that Tammy "spoke in an extremely pressured manner, flipped from one subject to another without transition, and spoke in such vague generalities at times that she was difficult to understand. Her verbal-izations were significant for themes of grandiosity and persecution, her thoughts were idiosyncratic and frequently illogical, and she was excessively suspicious of others." He described Tammy's recent behavior as "irrational and illogical" and her thought processes as "confused and disorganized." He viewed Tammy's responses and behavior during the interview as suggestive of a mental illness. While his opinions were tentative based upon this preliminary examination, Hauer opined that Tammy was likely to become "confused and preoccupied" during periods which she perceived as threatening. Hauer suggested that Tammy seek formal mental health assistance "to stabilize her psychological status." Hauer also suggested that Tammy "seek legal representation to assist her in her current situation."

¶ 7. On April 15,1999, Winnebago county filed a CHIPS petition alleging that Xena was in need of protection or services. On April 22, Commissioner Bissett conducted a review hearing regarding Xena's temporary placement and an initial appearance on the CHIPS petition. Tammy again appeared without counsel. Xena's father, Richard C., also without counsel, appeared by telephone from the county jail where he was being held in custody. Richard asked for counsel. The commissioner responded that he would have to hire an attorney. Tammy stated that she had sought free legal counsel, but that "the laws on free representation for cases of this nature just recently changed. I was not allowed a public defender."

' ¶ 8. Commissioner Bissett then advised both parents of their rights. As related to counsel, the commissioner stated:

You do have a right to be represented by an attorney. Although the public defender's office no longer appoints attorneys for parents in these types of proceedings, both of you do have the right to consult with and retain an attorney of your own choosing and you may do so at any stage in the proceedings.

¶ 9. After further explaining the nature of a CHIPS proceeding, Commissioner Bissett advised Tammy that she could admit, deny or enter a no contest plea to the petition. Tammy replied, "No contest." However, during the ensuing dialogue, it became apparent that Tammy disagreed with the allegations of the petition and that her plea was based on her belief that "I cannot "afford to go to trial." The commissioner explained that going to trial "doesn't cost you anything" and that Tammy could represent herself.

¶ Í0. Commissioner Bissett continued to explore Tammy's plea options. Although Tammy still refiised to enter a denial, she also continued to challenge the allegations in the petition. In addition, she gave conflicting and sometimes rambling responses to some of the commissioner's questions. Ultimately, the commissioner entered a denial on Tammy's behalf. He also appointed a guardian ad litem to represent Tammy's interests "in light of Dr. Hauer's evaluation as well as my discussions on the record today with the mother. I believe that that is appropriate ... in light of the mother's limitations." However, the commissioner also stated, "I'm not going to appoint adversary counsel . . . ." The commissioner then adjourned the review of Xena's temporary physical placement and the initial appearance to April 27.

¶ 11. At the adjourned hearing, Tammy again appeared without counsel, but her guardian ad litem, Attorney Erik Forsgren, was present. When Commissioner Bissett asked for Tammy's plea, Forsgren stated, "I believe that it would be in the best interest of the mother at this time to enter a no contest plea regarding this dispositional, however, it is my understanding that she chooses to contest the hearing." Tammy confirmed that this was her wish and Commissioner Bissett accepted the denial as Tammy's plea. The balance of the hearing was devoted to the issue of Xena's continued temporary physical placement. At the conclusion of the hearing, the commissioner continued the previous placement order and scheduled the matter for a bench trial in the juvenile court on May 17.

¶ 12. At the trial, Tammy once again appeared without counsel, but with Forsgren as her guardian ad litem. The juvenile court did not address the matter of legal representation for Tammy and the matter proceeded directly to trial. The county offered the testimony of Hauer, a social worker and the police officer who had responded to the calls on April 10. Tammy responded with her own testimony, disputing some of the events of April 10, and portions of Hauer's testimony. She also explained that she was not working and was receiving unemployment compensation in the amount of $186 per week which was scheduled to expire the first week in June. Following the close of the testimony, the court heard recommendations from the attorneys, including Tammy's guardian ad litem who agreed with the county's request that the court make a CHIPS finding. Tammy was not asked to participate in this phase of the proceedings. Following these statements, the court determined that the county had met its burden of proof under WiS. Stat. § 48.13(8) and (10) (1997 — 98) and the court made a CHIPS finding that Xena was in need of protection or services. The court scheduled the dispositional hearing for June 14,1999.

¶ 13. At the conclusion of this hearing, the following exchange took place between Tammy, the juvenile court and Karen Seifert, the assistant corporation counsel:

[TAMMY]: I would like to request a court-appointed attorney. I received a little bit of counseling from writing Chief Judge Haase, as I went to the public library. I was a little bit too late in writing because the computer—
THE COURT: I don't have any information, ma'am, on that.
[TAMMY]: He advised me to request a court-appointed attorney.
THE COURT: I received a copy of Judge Haase's letter to you. I don't have any information at this time, ma'am, to determine whether you're eligible or not. You may want to contact Legal Services. They represent people in these cases.
MS. SEIFERT: I don't know, Your Honor. I know the public defender does not, and I, for the most part—
THE COURT: You understand, you do have an attorney, a Guardian ad Litem for you, Mr. Forsgren?
[TAMMY]: He's not my attorney, Your Honor.
THE COURT: Well, he's been appointed Guardian ad Litem for you in this case, so he is representing your interests to a certain degree. Do you understand that?
[TAMMY]: Okay. Well, part of it. I don't because I'm not mentally incompetent.
THE COURT: What I would suggest you do, first, ma'am, is contact Legal Services and see if they'll represent you. See if you qualify for representation through their office.
[TAMMY]: Okay.

¶ 14. At the dispostional hearing, Tammy again appeared without counsel. The department of social services' dispositional report recommended that the court enter a CHIPS order. Forsgren, Tammy's guardian ad litem, joined in this request as did all of the other interested parties, save Tammy. She asked that Xena be returned to her. The court followed the department's recommendations, ordering that Xena be placed under the supervision of the department for a period not to exceed one year and remain outside the parental home in foster care.

¶ 15. Tammy, now represented by counsel, appeáls.

Discussion

¶ 16. Tammy's principal argument is that the juvenile court, whether acting through the court commissioner or the juvenile court judge, did not exercise its discretion whether to appoint counsel for her.

¶ 17. We begin with the supreme court's decision in Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d 411 (1996). The issue in Joni B. was the constitutionality of the then recently enacted provision of Wis. STAT. §48.23(3) that prohibited a juvenile court from appointing counsel for anyone but the child in a CHIPS proceeding. See Joni B., 202 Wis. 2d at 4-5. The court concluded that the amendment was unconstitutional because "fundamental fairness requires that a circuit judge be given the discretion to make the determination of .what due process requires on a case-by-case basis," which in some cases may mean the appointment of counsel. Id. at 18.

¶ 18. Joni B. recognized that courts have the inherent power to appoint counsel and that such power was not derived from an individual litigant's constitutional right to counsel. See id. at 10. Rather, this power was "inherent to serve the interests of the circuit' court." Id. (citation omitted). Joni B. also .recognized that circumstances may be present in unique cases where circuit courts may find "a compelling judicial need for appointment of an attorney for a party even though that party may have neither a constitutional nor a statutory right to counsel." Id. at 10 — 11. Such appointments are appropriate "in furtherance of the court's need for the orderly and fair presentation of a case." Id. at 11.

¶ 19. In addition, Joni B. addressed the due process and fundamental fairness implications of the legislative restriction placed on the court's authority to appoint counsel for a parent in a CHIPS case. See id. at 12. The supreme court drew guidance from the United States Supreme Court's decision in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), noting that an indigent parent's right to due process only mandates that counsel be appointed automatically when physical liberty is at stake. See Joni B., 202 Wis. 2d at 12. However, Lassiter also concluded that trial courts must still determine whether due process necessitates the appointment of counsel on a case-by-case basis. See Lassiter, 452 U.S. at 26, 32. As guidance, the Lassiter Court devised a test, later adopted by our supreme court in Piper v. Popp, 167 Wis. 2d 633, 647, 482 N.W.2d 353 (1992), to facilitate the determination of whether due process requires that counsel be appointed in a given situation:

First, a court must balance the following elements of due process against each other: the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. The "net weight" of these elements is then balanced against the presumption that a right to counsel exists only when personal freedom is jeopardized.

Joni B., 202 Wis. 2d at 13 (citations omitted).

¶ 20. In this case, the private interest at stake is the "parent's interest in the 'companionship, care, custody, and management of his or her children,'" which "undeniably warrants deference and, absent a powerful countervailing interest, protection." Id. (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Additionally,* parents have "a particularly 'commanding' intefest in the 'accuracy and justice' of proceedings that could end the parent-child relationship." Id. at 13-14 (quoting Lassiter, 452 U.S. at 27). Although Joni B. involved a CHIPS proceeding, while Lassiter involved a termination of parental rights, the court in Joni B. recognized that a parent's interest in a CHIPS proceeding is far from "minimal" because a dispositional order in CHIPS'proceedings can serve as a precursor to a later termination proceeding. See id. at 14-15.

¶ 21. Joni B. also observed that the parent and the State share a joint interest in a "just and accurate outcome where the welfare of a child is concerned." Id. at 15 (citation omitted). "[T]his interest might be best served in an adversary setting where both the State and the parents are represented by counsel because ’just results are most likely to be obtained through the equal contest of opposed interests.'" Id. (quoting Lassiter, 452 U.S. at 28). While acknowledging the legitimacy of the State's pecuniary interests in not appointing counsel, Joni B. nevertheless concluded that in some cases, such an interest would not outweigh the shared interest "in a just and accurate result which will require the 'equal contest' of counseled adversary proceedings. "Id. at 16.

¶ 22. In discussing the final due process factor — risk of erroneous outcome — Joni B. found that CHIPS proceedings pose many of the same dangers that Lassiter observed in termination proceedings:

Parents involved are "likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are, at the hearing, thrust into a distressing and disorienting situation." They may be confronted with medical and psychiatric testimony which few people are "equipped to understand and fewer still to confute . . . ." The issues may be complex and the testimony laced with hearsay and evidentiary pitfalls, escalating the risks of erroneous deprivation.

Joni B., 202 Wis. 2d at 16 (quotingLassiter, 452 U.S. at 30).

¶23. In the instant case, other than Commissioner Bissett's isolated statement at the initial appearance on the CHIPS petition that "I'm not going to appoint adversary counsel," the question of providing appointed counsel for Tammy was not otherwise addressed, even in the face of her requests for counsel and her statements that she could not afford counsel. Moreover, whenever the question of Tammy's representation was addressed, it was always accompanied by a statement that the public defender no longer provided representation for parents in a CHIPS proceeding and that Tammy would have to hire her own lawyer.

¶ 24. The practical effect of this advice was to leave Tammy with the belief that her only options were to hire her own attorney or represent herself. But as Joni B. reveals, this was an incorrect and incomplete statement of the law. The message from Joni B. is that the juvenile courts of this state have the discretionary authority on a case-by-case basis to appoint counsel for a parent in a CHIPS case. See id. at 18.

¶ 25. At various stages of the proceedings, Tammy expressed a desire for counsel. She advised the court commissioner at the initial appearance that she did not have the money to hire an attorney. The commissioner responded by simply confirming Tammy's understanding of her right to an attorney, but did not further explain that the court- had the authority to appoint an attorney. At the next appearance, Tammy stated to the court commissioner that she had sought free legal counsel, but the public defender would not represent her. The court commissioner responded by confirming that the public defender would not provide representation, and then adding "you do have the right to consult with and retain an attorney of your own choosing." At the conclusion of the fact-finding portion of the CHIPS trial, Tammy expressly asked the juvenile court for a court-appointed attorney and explained that she had contacted the chief judge on the matter. The court responded that it had no information as to Tammy's eligibility and suggested that she consult the legal services office.

¶ 26. Besides these requests for counsel, Tammy also gave indications which seriously questioned her ability to meaningfully represent herself. By the time of the second appearance, Commissioner Bissett had Hauer's psychological evaluation in hand. This report noted Tammy's confused and disorganized thought processes and her irrational and illogical responses — all suggestive of a mental illness. Hauer recommended that Tammy receive treatment from "formal mental health resources to stabilize her psychological status." More significantly, Hauer recognized that Tammy should "seek legal representation to assist her in her current situation."

¶ 27. Hauer's impressions were borne out in the subsequent proceedings. At the plea hearing, Tammy initially entered a plea of no contest, but quickly backpedaled during the ensuing colloquy with Commissioner Bissett. Tammy thought she could not contest the petition because she could not afford to go to trial. Upon clarification, Tammy still did not enter a denial because she did not think the matter even deserved a trial. She also stated that she felt "molested" and "ransomed" by the system. The commissioner's further attempts to complete a proper plea colloquy were unsuccessful. Instead, the commissioner entered a denial on Tammy's behalf, appointed a guardian ad litem and adjourned the proceeding.

¶ 28. The trial also reflected Tammy's inability to effectively represent herself. In this proceeding, she was nearly a nonfactor. The county called three witnesses: Hauer, a social worker and the police officer who responded to the calls on April 10. Tammy did not conduct any cross-examination of these witnesses. Nor did she call any witnesses on her own behalf. She did testify, but her testimony was limited to minimizing the circumstances that the officer had described and questioning the significance of Hauer's evaluation. Nor did she offer any evidence to show that the events precipitating these proceedings were an aberration or that she was in fact a good parent. We also observe that Tammy was not invited to participate in the final arguments.

¶ 29. We are also concerned that when the case arrived before the juvenile court for trial, the court did not make any inquiry of Tammy regarding her pro se status and whether she wished, or was competent, to represent herself. Instead, the matter proceeded directly to the evidentiary phase of the trial. Perhaps the court believed that the prior proceedings before the court commissioner sufficiently established that Tammy did not want a lawyer or was competent to represent herself. However, as the foregoing discussion reveals, we disagree. Or perhaps the court believed that it had no duty or authority to even address the matter. But, as we have explained, Joni B. confers the court with discretion to appoint counsel for a parent in the appropriate case.

¶ 30. In summary, the particular facts and circumstances of this case demonstrated a need for the juvenile court, whether acting through the judge or the court commissioner, to exercise the discretion conferred by Joni B. whether to appoint counsel for Tammy. Instead, the information provided to Tammy left her with the impression that her only recourse was to hire her own lawyer or represent herself. That information was an inadequate and incomplete statement of the law under Joni B.

¶ 31. We conditionally reverse the dispositional order. We remand for the juvenile court to address the question of court-appointed counsel for Tammy. If Tammy is financially eligible for such counsel and if she desires such counsel, then the juvenile court shall exercise its discretion and determine whether Tammy requires court-appointed counsel. If Tammy is not financially eligible, does not desire such counsel or the court otherwise determines in its discretion that Tammy does not require the assistance of advocacy counsel, then the court shall reenter the dispositional order.

¶ 32. We stress the limited scope of our holding. We do not hold that a juvenile court must advise a parent of the court's authority to appoint counsel for the parent in every CHIPS case. However, when the parent requests counsel or when the circumstances otherwise raise a reasonable concern that the parent will not be able to provide meaningful self-representation, the court must exercise the discretion conferred by Joni B. whether to appoint counsel. Here, Tammy not only requested counsel at various stages of the proceedings, but her words and conduct, coupled with Hauer's report, demonstrated the possible need for the court to consider the appointment of counsel.

¶ 33. Next, we turn to Tammy's complaint that Commissioner Bissett erred by appointing a guardian ad litem for her without first making a determination of her competency.

¶ 34. The appointment of a guardian ad litem is addressed to the trial court's discretion. See F.R. v. T.B., 225 Wis. 2d 628, 643, 593 N.W.2d 840 (Ct. App. 1999). Here, Commissioner Bissett had ample reason to suspect that Tammy did not have the ability to determine what was in her best interests regarding this proceeding. The commissioner saw the need for a guardian ad litem based upon Hauer's evaluation and the court's dialogue with Tammy and first-hand observations of her at the hearings. In making the appointment, the commissioner referred to Tammy's "limitations." The commissioner properly exercised his discretion in appointing a guardian ad litem for Tammy.

¶ 35. Tammy also complains that her guardian ad litem gave recommendations that were contrary to her desires. This argument is also without merit. The guardian ad ¡item's recommendations were in keeping with a guardian ad ¡item's proper roie. See Wiederholt v. Fischer, 169 Wis. 2d 524, 536, 485 N.W.2d 442 (Ct. App. 1992) (a guardian ad ¡item's roie is to represent a person's best interests, not to advocate for his or her desires).

Conclusion

¶ 36. We hoid that the appointment of a guardian ad ¡item for Tammy was a proper exercise of discretion and that the guardian ad ¡item property performed his function. However, given the circumstances of the case, we hoid that the juvenile court was obliged to exercise the discretion conferred by Joni B. whether to appoint counsel. We conditionally reverse the dispositional order and remand for the court to consider the appointment of counsel question. If the court concludes that the appointment of counsel is appropriate, the court shall appoint such counsel and conduct a new trial. If the court concludes that the appointment of counsel is not appropriate, the court is authorized to reenter the standing dispositional order.

By the Court. — Order reversed and cause remanded with directions.

      At the same time, Commissioner Bissett accepted the father's plea of no contest to the CHIPS petition.

       All references to the Wisconsin Statutes are to the 1997-98. version unless otherwise noted.

       Judge Haase's letter is not part of the appellate record.

       In conducting the balancing called for above, the court in Joni B. v. State, 202 Wis. 2d 1, 19, 549 N.W.2d 411 (1996), recommended that courts also consider — but not exclusively:
      —the personal characteristics of the parent, such as age, mental capacity, education, and former contact with the court;
      —the parent's demonstrated level of interest in the proceedings and desire to participate;
      —whether the petition alleges incidents of abuse or neglect which could lead to criminal prosecution;
      —the complexity of the case, including the likelihood of the introduction of medical or psychological evidence;
      —the probability of out-of-home placement and potential duration of separation, based on the allegations in the petition and the social worker's recommendation.

       Tammy did offer proof of certain expenditures she had made on behalf of Xena.

       In making this statement we are assuming that the juvenile court had the opportunity to review the prior proceedings before the court commissioner.

       In making this determination, the juvenile court can look to, in addition to any other relevant criteria, the factors set out in Joni B., 202 Wis. 2d at 19. See supra n.4. The court might also look to the criminal law for guidance in determining whether Tammy requires the assistance of appointed counsel. In a criminal setting, a court looks to factors such as the defendant's "education, literacy, fluency in English, and any physical or psychological disability which may significantly affect" his or her ability to communicate a defense. State v. Klessig, 211 Wis. 2d 194, 212, 564 N.W.2d 716 (1997) (citation omitted). Such a determination "should not prevent persons of average ability and intelligence from representing themselves unless 'a specific problem or disability can be identified which may prevent a meaningful defense from being offered, should one exist.'" Id. (citation omitted).

       This issue is not rendered moot by our holding reversing the dispositional order. Since there will be further proceedings in the juvenile court and the guardian ad litem will presumably participate, we must address Tammy's contention that the appointment of the guardian ad litem in the first instance was improper.