S832
13. Teresa Oettinger
of Green Bay, Wisconsin claims $1,025.00 for the cost of repairing siding allegedly damaged by a foster child in the care of the claimant's next door neighbor. The claimant states that on October 6, 2003, she observed the child throwing sticks and rocks at her neighbor's house, where he resides. The claimant states that she opened her window and yelled at the child to stop, at which time he threw several stones at her, which struck the side of her home and damaged the aluminum siding. The claimant states that, according to the police report, the child's foster mother was home at the time he was throwing the stones but was afraid to go outside to confront him. The claimant does not believe that the foster mother provided appropriate supervisor of the child because she failed to even attempt intervention when the foster child was misbehaving. The claimant points to the fact that the foster mother does receive compensation for her role as foster parent and the claimant believes that along with that compensation comes some responsibility for the child's behavior. The claimant understands that laws are made to protect foster parents for the good of the community, however, she does not believe that those laws should absolve the foster parent of any and all responsibility for the child that has been entrusted to her care. The foster mother's homeowner's insurance would not cover the damage because it resulted from an intentional act. The claimant receives a "claim free" discount on her insurance premiums, which would increase if she filed a claim with her own homeowner's insurance. She also has a $250 deductible. The claimant does. believe it is fair for her to bear the burden of these costs because the foster mother sat in her home and did nothing but watch while the child in her care damaged the claimant's home.
The Department of Health and Family Services recommends denial of this claim. The DHFS states that the foster parent insurance program described in s.
48.627, Stats., only provides for payment of claims to the extent that the damages are not covered by any other insurance and for which the foster parent becomes legally liable. The claimant did not pursue any court action against the foster parent to determine whether or not she was legally liable and the claimant does have insurance to cover the damages. DHFS states that there does not appear to be any basis to assign liability to the foster parent or foster care agency. State and county agencies and foster parents provide care to foster children who may have serious behavioral problems. DHFS believes that it would be contrary to public policy to require foster parents and agencies to pay for the acts of troubled children unless there is a finding of legal liability on the part of the foster parent or agency. DHFS further believes that the government is not and should not be the ultimate payer for all crimes or wrongs and that property owners are responsible for maintaining insurance to protect themselves against these types of damages.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
14. David Ress of Wausau, Wisconsin claims $506.00 for property damage caused by flooding in a University of Wisconsin dorm. The claimant lived in Sullivan residence hall. He states that on November 7, 2003, a leaky and sagging bathroom sink broke away from the wall, ripped open a pipe and caused flooding in the claimant's room, which is located directly across the hall from the bathroom. The claimant states that he was told that the shutoff valve for the cold water pipe was rusted open and therefore could not be turned off by hand, which caused the flooding to continue for some time. The claimant and his roommate were not home at the time and were therefore unable to clear out the room. The claimant states that some of his friends who lived down the hall asked if they could go into the room to help protect his property from damage but that they were denied entrance to his room. The claimant was told that the flooding began between 9 and 10 PM. He returned to his room around 1 AM and the flooding had stopped by then, however, university maintenance did not arrive until 1:30 AM to begin cleaning water out of the room. The claimant states that a maintenance employee told him they pumped 20-30 gallons of water out of his room. The claimant requests reimbursement for his property, all of which was lying on the floor of his room and therefore spent 3-4 hours immersed in water. The claimed damaged property includes a Playstation 2 console, controller, memory card and video game, and two textbooks. Two items originally reported to police as damaged (a DVD movie and a video game) were able to be cleaned and are now usable, therefore the claimant is not requesting any reimbursement for these items.
The UW recommends payment of this claim on equitable grounds. The university agrees with the facts of the incident as stated by the claimant. Although it is the university's position that it was not negligent, it does believe that equitable grounds warrant payment of the claimant's damages.
The Board concludes the claim should be paid in the amount of $506.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the University of Wisconsin appropriation s.
20.285 (1)(h), Stats.
15. John Sadowski of Muskego, Wisconsin claims $3,024.85 for uninsured medical expenses allegedly incurred due to an accident at State Fair Park. The claimant states that on August 2, 2003, he was at the Wisconsin Products building at SFP. He states that a woman with a baby stroller was coming out of the building and was having trouble pushing open the door. The claimant states that he went to assist the woman and that the door was very heavy. He states that the only way to push open the heavy door was to brace his other hand on the door jam. While the claimant had his hand on the jam, the door on the other side swung closed very quickly and crushed his pinky finger. The claimant requests payment for the portion of his medical costs not covered by his insurance.
Wisconsin State Fair Park recommends that this claim be denied. SFP believes that there was no negligence on the part of any state employee or agency. The claimant was holding a door open with his other hand placed on the door jam. According to the police report of the incident he "did not realize" where this hand was placed and someone else accidentally shut the other door on his finger. SFP does not believe that there was any negligence and that payment of the claim is not warranted.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
The Board concludes:
1. The claims of the following claimants should be denied:
Charles Armitage/Neillsville Foundry, Inc.
Bergman Companies, Inc.
Ralph Rischmann
Ernestine Walker
Lifenet, LLC
Scott Knapp/SK Exotics and Rodentry
Village of Sturtevant
Teresa Oettinger
John Sadowski
2.
Payment of the following amounts to the following claimants from the following statutory appropriations is justified under s.
16.007, Stats:
3. The Board declines to reconsider the claim of David F. Kral, which was considered and denied by the Board on December 5, 2003.
4. The Board approves development of a Claims Board web site.
Dated at Madison, Wisconsin this 13th day of July 2004.
Alan Lee, Chair
Representative of the Attorney General
John E. Rothschild, Secretary
Representative of the Secretary of Administration
Representative of the Governor
Scott Fitzgerald
Senate Finance Committee
Dan Meyer
Assembly Finance Committee
__________________
Relating to nursing homes and facilities for the developmentally disabled.
Submitted by Department of Health and Family Services.
Report received from Agency, July 19, 2004.
Referred to committee on Health, Children, Families, Aging and Long Term Care, July 21, 2004
.
__________________
Senate Enrolled Proposals
The Chief Clerk records:
Senate Joint Resolution 6
Report correctly enrolled on July 14, 2004.
Chief Clerk's Report
The Chief Clerk records:
Senate Joint Resolution 6
Deposited in the office of the Secretary of State on July 16, 2004.
