The Director of State Courts (DSC) recommends denial of this claim. DSC states that the state is not responsible for insuring employee personal property. DSC notes that the claimant is not required to have access to a personal cell phone as part of her job responsibilities. DSC notes that its offices are open to the public from 7 a.m. to 5 p.m. and that there have been no reports of thefts or other crimes in the DSC offices for over five years. DSC believes that the claimant should have taken minimal precautions to protect her personal property, rather than leaving the phone in plain sight on her desk. DSC states that until this claim was filed, the claimant had never notified her supervisor that she did not have a key to her filing cabinet. (A replacement key has since been ordered.) DSC believes there has been no showing of negligence on the part of the state and that there are no equitable reasons for payment of this claim.
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 with the state should assume and pay based on equitable principles.
5. Catherine Nelsen of Milwaukee, Wisconsin claims $500.00 for reimbursement of her insurance deductible. On 5/14/14 the claimant was driving northeast on Appleton Avenue in Milwaukee, WI. As she entered the curve under the Hwy. 41/45 bridge, she encountered a large piece of concrete in the middle of the road. Due to the proximity of other traffic she was unable to swerve to avoid hitting the concrete. The claimant states that her vehicle was totaled by the impact with the concrete. At the time of the accident, the claimant believed the concrete had fallen from the underside of the Hwy. 41/45 bridge. She now believes the concrete most likely fell from a dump truck or other vehicle. The claimant states that this large piece of concrete in the middle of the road created a very dangerous situation and she requests reimbursement in the amount of her insurance deductible.
DOT recommends denial of this claim. After receiving DOT’s response disproving her initial allegation that the concrete fell from underneath the Hwy. 41/45 bridge, the claimant now alleges that the concrete fell from the back of another vehicle. DOT points to the fact that the claimant has provided no evidence of negligence on the part of any DOT or state employee. DOT notes that the roadway where this incident occurred is under a maintenance contract with the Milwaukee County Highway Department. DOT believes there is no evidence of liability on the part of the state and that the claimant should pursue her claim with Milwaukee County.
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 with the state should assume and pay based on equitable principles.
6. Maria Dominguez of Madison, Wisconsin claims $6,525.26 for damage to her vehicle caused by a tree at Mendota Mental Health Institute (MMHI) on 6/18/14. The claimant is employed at MMHI. She states that the large oak tree next to the MMHI designated employee parking lot has been dripping sap and dropping limbs for several years. The claimant states that on 6/18/14 a large limb broke off of the tree and damaged several cars. The claimant states that she has since been informed that the tree will be taken down because it is unsafe. The claimant believes the tree should have been cut down several years ago and that if it had been, this damage would have been avoided. She requests reimbursement for the cost to repair her vehicle.
DHS recommends denial of this claim. DHS notes that the MMHI campus consists of 100+ acres and that the grounds include numerous trees of varying species, age, height, and girth. DHS states that between 6/16/14 and 6/18/14, Dane County and the surrounding area experienced severe adverse weather with extremely high winds and rain. A tornado warning was issued at approximately 8 a.m. on 6/18/14 and the National Weather Services reported that at least two tornadoes with estimated winds of 120 mph touched down in Dane County. DHS states that due to this severe weather, a number of trees on the MMHI campus suffered branch and limb breakage. DHS states that the branch that fell on the claimant’s car broke off due to the high winds that hit the MMHI campus. DHS states that this oak tree was mature and had been inspected and pruned in November 2012. DHS states that at the time of the inspection, there was nothing notable about the condition of this tree and it was not identified as a hazard. In fact, the 2012 inspection indicated that this tree was alive and healthy, showing vigorous foliage throughout the entire tree. DHS notes that while some twigs and branches may have occasionally fallen from the tree in the years leading up to the 6/18/14 incident, this is a natural occurrence and by no means indicated that the tree was in distress or a hazard. DHS points to the fact that there is no record of any written complaints about the tree going back to 1998. The tree has been inspected and cared for by a professionally certified arborist since 1999. DHS believes it exercised reasonable diligence and ordinary care in the pruning and maintenance of the trees on the MMHI campus. DHS points to case law which states that in order for an employer to be liable for an unsafe condition, it must have actual or constructive notice of it. DHS states that, although the tree has now been deemed unsafe due to the damage caused by the severe weather on 6/18/14, there was nothing between the November 2012 inspection and the severe weather incident that would have given notice to DHS that the tree was unsafe. DHS notes that tornadoes and tornado-like winds are common throughout Wisconsin and that such winds can reach a velocity that will break limbs and uproot trees. DHS believes that if the department or other government agencies are held liable for all damage cause by falling tree limbs, agencies would be forced to cut down large trees in public spaces to avoid the possible hazards caused by high winds. DHS believes the more appropriate standard is that agencies only be held liable if it can be proven they were negligent in the care and maintenance of a tree and/or had notice of an unsafe condition. DHS believes this accident, while unfortunate, was in no way caused by the negligence of DHS staff or other state employees. This was an “Act of God” caused by severe weather and the claim should be denied.
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 with the state should assume and pay based on equitable principles.
7. Anthony J. Machicote of Portage, Wisconsin claims $75.01 for value of property allegedly lost or improperly destroyed by DOC personnel. In February 2013, the claimant was transferred from the Wisconsin Resource Center (WRC) to Columbia Correctional Institution (CCI). The claimant states that his property was properly inventoried by WRC staff but that when he arrived at CCI and was given his property a number of items were missing. The claimant states he contacted the property staff at CCI but received no reply. He states that he filed an inmate complaint, which was dismissed. He appealed the dismissal and submitted as evidence the outgoing WRC and incoming CCI property inventories, which he alleged clearly showed that he did not receive property sent by WRC. The claimant’s appeal was denied. The claimant points to DOC policy, which states that the department is responsible for property lost while under the control of DOC staff. He requests reimbursement for his missing property.
DOC recommends denial of this claim. DOC states that the evidence provided by the claimant, at best, shows that the property in question was either properly destroyed consistent with the policies and procedures of the WRC and CCI, or was misplaced by WRC, CCI or a third-party carrier. (DOC notes that WRC is a Department of Health Services facility.) DOC believes the claimant has provided no evidence that DOC staff were negligent in the handling of his property. DOC believes the doctrine of Sovereign Immunity protects the state from any legal liability regarding this claim. DOC further believes there is no equitable basis for payment of this claim.
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 with the state should assume and pay based on equitable principles. The Board continues to be perplexed as to why DOC continues to press a sovereign immunity defense in its responses to claims brought to this Board. Sovereign immunity is simply not a defense to claims brought to this Board. DOC would be better served dedicating more of its response addressing the facts presented as opposed to a legal defense that is inapposite. DOC’s 1 ½ pages of boiler plate language on sovereign immunity does nothing aid the Board in making its decision.
8. Oscar Garner of Boscobel, Wisconsin claims $69.84 for the value of 5 books allegedly lost by DOC personnel in September 2013. The claimant was transferred from Waupun Correctional Facility (WCI) to the Wisconsin Secure Program Facility (WSPF). He states that when he left WCI he had 14 books but that when he arrived at WSPF, the outgoing property inventory from WCI indicated they had sent 12 books and the incoming inventory at WSPF showed receipt of only 9 books. The claimant filed an inmate complaint regarding the missing books but the complaint was denied. The clamant states that he did not have access to the books and that they therefore could only have been misplaced by DOC staff. The claimant disputes DOC’s assertion that the discrepancy between the incoming and outgoing property inventories could be due to a difference in the way publications are counted at each institution. The claimant states that a book is clearly a publication and it is therefore unlikely that it would not be counted as such at each institution. The claimant requests reimbursement for the cost of his 5 missing books.
DOC believes the claimant has not met his burden to show that DOC staff negligently handled his property and therefore recommends denial of this claim. DOC states that the property inventories presented as evidence by the clamant, at best, show that the staff at each institution simply counted the publications differently. DOC believes the doctrine of Sovereign Immunity protects the state from any legal liability regarding this claim. DOC further believes there is no equitable basis for payment of this claim.
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 with the state should assume and pay based on equitable principles. The Board continues to be perplexed as to why DOC continues to press a sovereign immunity defense in its responses to claims brought to this Board. Sovereign immunity is simply not a defense to claims brought to this Board. DOC would be better served dedicating more of its response addressing the facts presented as opposed to a legal defense that is inapposite. DOC’s 1 ½ pages of boiler plate language on sovereign immunity does nothing aid the Board in making its decision.
9. Jermaine McFarland of Fox Lake, Wisconsin claims $237.21 for value of property allegedly lost, stolen, or improperly destroyed by DOC personnel. The claimant is an inmate at Fox Lake Correctional Institution (FLCI). He states that when he was sent to segregation on 12/29/12, his property was packed up by FLCI officers. The claimant notes that he did not have access to his property while in seg. The claimant states that he became aware that some of his property was missing when he was escorted to the seg property room on 1/4/13 and told that he had too much property and that some of it would have to be destroyed. The clamant states that he told the seg property officer, Officer Richter, that he believed some of his property was missing and that Officer Richter told the claimant that “was of no concern”. The claimant states that Officer Richter told him to find out who packed his property and file an inmate complaint. The claimant states that he made several attempts to contact various FLCI staff to find out who packed his property. Because the 14-day time limit to file an inmate complaint was approaching, the claimant was forced to file his complaint before he was able to determine exactly what property was missing. The claimant states that when he was released from seg and again had access to his property, he immediately inventoried it and made a list of the missing items. He states he sent the list to Warden Clemments on 2/6/13 and that the Warden replied several days later that he had received the list and would respond through the inmate complaint system. On 2/18/13 the claimant’s inmate complaint was denied because he had not provided sufficient evidence by failing to provide a list of the missing items. The clamant appealed the decision and his appeal was denied. The claimant notes that if he had not filed his complaint by 1/18/13, it would have been denied as being past the 14-day time limit. The claimant states that he submitted a list of the missing items and that Warden Clemments and the ICE staff ignored his submission and wrongly denied his complaint. The claimant alleges that there is an “epidemic” of property going missing at FLCI from inmates who are sent to seg and that 9 of 10 inmates sent to seg at FLCI lose property. The claimant further states that DOC’s allegation that the doctrine of Sovereign Immunity protects DOC from liability in the matter is false. The claimant points to DOC 309(3) Wis. Admin. Code, which provides that DOC is responsible for repair or replacement of lost or damaged property caused by institution staff.
DOC recommends denial of this claim. DOC states that the claimant failed to provide a list of missing items when he filed his inmate complaint and that the complaint was denied for that reason. DOC believes the claimant has failed to provide any evidence that DOC staff is responsible for the missing property and that it is more likely that the claimant himself lost, traded, or had stolen the property over the years. DOC believes the doctrine of Sovereign Immunity protects the state from any legal liability regarding this claim. DOC further believes there is no equitable basis for payment of this claim.
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 with the state should assume and pay based on equitable principles. The Board continues to be perplexed as to why DOC continues to press a sovereign immunity defense in its responses to claims brought to this Board. Sovereign immunity is simply not a defense to claims brought to this Board. DOC would be better served dedicating more of its response addressing the facts presented as opposed to a legal defense that is inapposite. DOC’s 1 ½ pages of boiler plate language on sovereign immunity does nothing aid the Board in making its decision.
The Board concludes:
That the following identified claimants are denied:
Stanley Johnson
Robert F. Munson
Amanda Faessler
Catherine Nelsen
Maria Dominguez
Anthony J. Machicote
Oscar Garner
Jermaine McFarland
That payment of the amounts below to the identified claimants from the following statutory appropriations is justified under § 16.007, Stats: Dated at Madison, Wisconsin this 17th day of October, 2014.
COREY FINKELMEYER
Chair, Representative of the Attorney General
GREGORY D. MURRAY
Secretary, Representative of the Secretary of Administration
BRIAN HAGEDORN
Representative of the Governor
PATRICIA STRACHOTA
Assembly Finance Committee
