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COA takes tough stand on Wisconsin’s accident reporting statute

County of Monroe v. Kling, 2022AP339, 12/30/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Section 346.70(1) governs a driver’s duty to report a car accident. When the accident does not cause injury or death, the driver must report the “total damage to property owned by any one person. . . to an apparent value of $1,000 or more” to the authorities by “the quickest means of communication.”  There are no published opinions interpreting and applying this language. This decision construes it against drivers and affirms the civil forfeiture entered against Kling.

While driving home from work Kling veered off the road, hit a mailbox, overcorrected his steering, and drove into a ditch. He was unharmed. Bystanders offered help. One asked Kling whether he had reported the accident. At that point, he had not. After he received a ride home, he called law enforcement and a tow truck driver who took the car to a shop for repairs. He also contacted the owner of the mailbox and offered to replace it.

Law enforcement issued a traffic citation for failure to report an accident in violation of §346.70(1). The case went to trial where the county bore the burden of proving that: “(1) Kling was the operator or occupant of a vehicle involved in an accident; (2) the accident resulted in total damage to property owned by any one person to an apparent extent of $1,000 or more; and (3) Kling failed to immediately give notice of the accident to law enforcement by the quickest means of communication. See City of Rhinelander v. Wakely, No. 2015AP302, unpublished slip op. ¶¶7 & n.5, 8, (WI App Mar. 8, 2016).” Opinion, ¶9.

Kling’s main defense was that his car damage was not apparent to the extent of $1,000 or more. He presented receipts indicating that the cost of towing the car and repairing the tires was $200.45. He estimated that the cost of replacing the bumper would be about $500 because he had replaced it a few years earlier and still had those receipts. He gave no estimate for scratches seen on the passenger side of the car.

The circuit court rejected Kling’s testimony and credited that of an officer who saw the car in a ditch. The officer said, based on his personal and professional experience, the damage was “way over the threshold of $1,000.” He claimed the car was “leaking.” His body camera did not confirm any leaking. And neither the tow truck driver nor the repair shop found leaking. Opinion, ¶¶15-16.

Kling appealed pro se appeal and presented one issue: whether the county’s evidence of property damage “to an apparent extent of $1,000” or more was sufficient. The court of appeals held that it was.

According to the court of appeals, the purpose of §346.70(1). is to establish a bright line rule as to when accidents must be reported and to relieve people of that duty when property damages is minor. Opinion, ¶28. The statute refers to damage to “any one person’s property.” So a person who causes $900 damage to his own car and $200 damage to someone else’s mailbox need not report. Opinion, ¶29. “Total damage to property owned by one person . . . to an apparent extent of $1,000 or more” means the cost of returning the property to its condition before the accident, not the cost of improving it. Opinion, ¶30.

And what does “apparent” mean? Relying on the dictionary the court of appeals says it means “damage that is visible and obvious, whether or not that damage is born out by later inspection and testing.” Opinion, ¶32. The damage must be “apparent” at the time of the accident, not later when a mechanic looks at the car.

Importantly, the “apparent extent” of the damage refers to damage “apparent to a reasonable person of ordinary intelligence and experience who is aware of information known to the operator and facts that are visible and obvious at the scene of the accident.” Opinion, ¶34.

The court of appeals cites no authority for incorporating a reasonable person standard into the statute because–apparently–there is none.  What if the car was scratched up a year before a minor accident. An officer or bystander might wrongly attribute the scratches to the accident. So should their perception should control? Also is an officer who testifies, based on his “personal a professional experience,” that the damage is way over $1,000 an “ordinary person” or a person with specialized knowledge?

The court of appeals held that Kling’s perception of the damage (based on his knowledge of his car, the estimates he obtained, and the bills he paid) was irrelevant. Plus Kling did not account for the damage on passenger side of the car. Therefore, the circuit court did not err when it chose to believe the officer over Kling. Opinion, ¶¶38-40.

Surely, there are hundreds or maybe thousands of minor accidents damaging only property every day. Think about the last time you scraped a pole in a parking lot or got into a fender bender. A published opinion construing this statute sure would be helpful, but this decision is definitely not the one to publish. Kling did not have the benefit of a lawyer. See his handwritten, pro se brief. The lack of research and analysis surely contributed to the result in this case.

 

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