Meunier v. Ogurek
| Decision Date | 23 July 1987 |
| Docket Number | No. 85-1623,85-1623 |
| Citation | 140 Wis.2d 782,412 N.W.2d 155 |
| Parties | Jerald MEUNIER, Plaintiff-Appellant, v. Frank J. OGUREK and Mary A. Ogurek, Cedarburg Mutual Insurance Company, a domestic insurance corporation, Defendants-Respondents, Ford Motor Company, a foreign corporation, Defendant. |
| Court | Wisconsin Court of Appeals |
Adrian P. Schoone and Robert E. Hankel and Schoone, McManus, Hankel, Ware & Fortune, S.C., Racine, for plaintiff-appellant.
Robert J. Asti and Jane E. Miller and Levy & Levy, S.C., Cedarburg, for defendants-respondents.
Before GARTZKE, P.J., and DYKMAN and EICH, JJ.
Jerald Meunier appeals a summary judgment dismissing his complaint against Frank and Mary Ogurek. He also seeks review of an order denying his motion to compel responses to interrogatories about witnesses who gave statements to Ogureks. Meunier's wife was killed when the farm tractor she was operating overturned. Meunier claims that the overturn resulted when Ogureks' dog startled Mrs. Meunier. The substantive issue is whether, as the trial court held, sec. 174.02, Stats.1981, imposes liability upon the owner of a dog which causes injuries and property damage only if the dog is mischievous or vicious or has unusual characteristics. We hold that sec. 174.02 imposes liability, even if the dog lacks such characteristics. 1 We therefore reverse and remand for trial. 2 We also hold that the court abused its discretion when it denied Meunier's motion to discover names of persons from whom Ogureks obtained statements.
The pertinent facts are undisputed: The Ogureks and Meuniers are farm neighbors. On October 19, 1982 Mrs. Meunier was operating a tractor in a field. Ogureks' dog ran under the rear axle of the tractor. Seeing the dog and startled, she "popped" the clutch. The tractor jumped, flipped over backwards and landed on her.
At the time of the accident, sec. 174.02(1)(a), Stats.1981, provided, "The owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, livestock or property." The trial court concluded that sec. 174.02(1) does not clearly impose strict or absolute liability upon the dog owner. The court concluded from the affidavits supporting and opposing summary judgment that no evidence existed that the dog was mischievous or vicious or had unusual habits. The court held that Meunier had no claim under sec. 174.02(1) or for common law negligence and dismissed the complaint.
"Strict liability" is a judicial doctrine which relieves a plaintiff from proving specific acts of negligence and protects him from certain defenses. See, e.g. Burrows v. Follett & Leach, Inc., 115 Wis.2d 272, 278-79, 340 N.W.2d 485, 489 (1983). "Absolute liability" is a judicial doctrine which imposes civil liability on proof of a statutory violation, such as violation of child labor laws. D.L. v. Huebner, 110 Wis.2d 581, 639-40, 329 N.W.2d 890, 917 (1983). Ogureks' liability as dog owners depends on the terms of the statute, not on judge-made law.
That is why we restrict our analysis to the statute. If it unambiguously states the conditions under which a dog owner is liable, we may not add more by implication or statutory construction. Our first task is therefore to determine whether sec. 174 02(1), Stats.1981, unambiguously describes the conditions for liability.
A statute is ambiguous if reasonable persons can understand it differently. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166-67, 361 N.W.2d 673, 678 (1985). Whether reasonable persons can disagree on a statute's meaning is a question of law. St. John Vianney Sch. v. Janesville Ed. Bd., 114 Wis.2d 140, 150, 336 N.W.2d 387, 391 (Ct.App.1983). We of course decide questions of law without regard to the trial court's view.
Reasonable persons can read sec. 174.02(1), Stats.1981, only as a statement of all of the conditions under which the dog owner is liable for damages caused by the dog. It simply states that the owner is liable for damages caused by the dog injuring or causing injury to a person, livestock or property. The statute is complete. It permits no additions. 3
Under our analysis, we have no reason to examine the history of the statute and the case law before sec. 174.02(1), Stats.1981. The legislative history of an unambiguous statute may not be looked to for its meaning. Aparacor, Inc. v. ILHR Department, 97 Wis.2d 399, 403, 293 N.W.2d 545, 547 (1980). Nor may we look to changes made by later legislation. 4
Accordingly, we will reverse the judgment which dismissed the complaint and remand for further proceedings.
We turn to whether the trial court misused its discretion by failing to grant Meunier's discovery motion, made because Ogureks refused to answer an interrogatory. The interrogatory asked for the names and addresses of persons from whom Ogureks had taken statements, the dates the statements were taken, the form of the statements and the name and address of the person having custody of the statements. The court denied the motion on grounds that the information sought was protected from discovery as attorney's work product and Meunier had failed to show good cause or undue hardship as required by statute.
A trial court abuses its discretion if it relies upon an erroneous view of the law. In re Marriage of Gould v. Gould, 116 Wis.2d 493, 498, 342 N.W.2d 426, 429 (1984). We conclude that the court abused its discretion because it relied on a mistaken understanding of sec. 804.01(2), Stats.
Section 804.01(2), Stats., governs the scope of discovery. Section 804.01(2)(c)1. provides that a party may "obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Wisconsin's discovery rule is substantially identical to Fed.R.Civ.P. 26. Federal decisions construing the procedural counterparts to Wisconsin rules of civil procedure are persuasive. Wilson v. Continental Insurance Cos., 87 Wis.2d 310, 316, 274 N.W.2d 679, 682 (1979). Since no Wisconsin decision has been cited to us on the issue, we review the federal decisions in point.
Federal courts have held that information similar to that requested by the Meuniers is discoverable. The names and addresses of persons interviewed are discoverable. Kelleher v. Omark Industries, Inc., 20 Fed.R.Serv.2d (Callaghan) 199, 201 (1975); United States v. Real Estate Bd. of Met. St. Louis, 59 F.R.D. 637, 640 (1973). See also Ballard v. Allegheny Airlines, Inc., 54 F.R.D. 67, 69 (1972) (); In re Master Key, 53 F.R.D. 87, 91 (1971) (); B. & S. Drilling Co. v. Halliburton Oil Well Cementing Co., 24 F.R.D. 1, 3 (1959) (). None of the federal cases cited required a showing of hardship.
The trial court reasoned and Ogureks argue that Ogureks were compelled to answer the interrogatories only upon Meunier's showing "undue hardship." Sec. 804.01, Stats. We disagree. Section 804.01(2)(c)1 applies to "discovery of documents and tangible things ... prepared in anticipation of litigation...." At this point Meunier does not seek and is not entitled to discovery of documents or tangible things. We conclude, however, that Meunier is entitled to discover the names and addresses of persons from whom Ogureks obtained statements. 5
Ogureks argue that the information sought by Meunier is protected from discovery under the work product rule announced in State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559, 150 N.W.2d 387, (1967). Dudek is unaffected by subsequent enactment of sec. 804.01, Stats. See Judicial Council Committee's Note, 1974, 67 Wis.2d at 659 (sec. 804.01 does "not change the state practice under State ex rel. Dudek v. Circuit Court ...").
A lawyer's work product includes "information he has assembled and the mental impressions, the legal theories and strategies that he has pursued or adopted as derived from interviews, statements, memoranda, correspondence, briefs, legal and factual research, mental impressions, personal beliefs, and other tangible or intangible means." Dudek at 589, 150 N.W.2d at 404. So defined, the names and addresses of persons who gave statements is work product.
Work product is privileged information. As such, work product is not subject to discovery "except where the objectives of pretrial discovery are...
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