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.
9. Jennifer Arndt of Lake Geneva, WI claims $567.59 for damage to vehicle tires allegedly caused by a crosswalk sign in the roadway on South Lake Shore Drive in Lake Geneva, within the boundary of Big Foot Beach State Park (“the Park”), on August 5/6, 2022. Claimant’s son, Andrew Arndt, was travelling northbound on South Lake Shore Drive in a vehicle owned by Claimant’s fiancé, James Militello. After hitting a “little bump,” tire pressure decreased, and Arndt pulled over. He discovered he hit a rubber mat (with no sign attached) that lay in the middle of the northbound lane with four screws sticking out. The two driver-side tires were damaged. Claimant notes that she and Militello were out of town at the time of the incident, but that she provided Arndt with the cash to repair the damage, which he did at Walmart on August 6. Claimant asserts that while only two tires were damaged, all four were replaced per Walmart’s policy. Claimant holds that DNR was negligent in that it failed to maintain a hazard-free roadway.
DNR recommends the claim be denied. DNR maintains crosswalk signs at the two crosswalks across South Lake Shore Drive. Each of the two crosswalks has one sign positioned on the centerline of the roadway. Each day, staff visually confirm the location and correct positioning of the signs. The Park has experienced issues with theft and vandalism of crosswalk signs; as a theft deterrent, DNR uses lag screws to secure the crosswalk signs and mats into the asphalt. DNR is confident the subject crosswalk sign was correctly positioned on the centerline at the end of the day on August 5. On the morning of August 6 or 7, staff observed the sign was missing. The mat was located on the shoulder of the road, with no sign attached. The sign was never located. It is DNR’s belief that sometime during the night of August 5, the sign was tampered with and stolen, leaving just the mat, possibly with screws sticking out. This condition was not the result of DNR action or inaction. DNR notes that due to the proximity in time to Labor Day (i.e., when the signs are usually removed), the subject sign was never replaced/reinstalled after this incident. DNR further believes the photographs provided by Claimant (with the sign improperly installed with screws sticking up) are from the other crosswalk in the Park. DNR holds that it exercised appropriate vigilance in its maintenance of the crosswalk sign. If the Board finds that monetary relief is appropriate, DNR recommends no more than $262.70 – the cost of two tires, less the cost of the elective road hazard replacement coverage.
The Board concludes the claim should be paid in the amount of $262.70 based on equitable principles. The Board further concludes, under authority of Wis. Stat. § 16.007(6m), payment should be made from the Department of Natural Resources appropriation Wis. Stat. § 20.370(1)(ma). 10. Corey Benson of Waupun, WI claims $18.65 for earbuds allegedly lost by DOC staff. Benson was moved to the Restrictive Housing Unit (RHU) at Waupun Correctional Institution on September 23, 2022, resulting in limited possession of his personal property items. Disallowed personal property items are packed, inventoried, and stored until the inmate returns to general population. On October 12, 2022, Benson was provided his allowable personal property items in RHU, and given an inventory log detailing the remaining, stored property items. Benson discovered his recently purchased earbuds were missing from the inventory log, in addition to other items not subject to this claim. Benson raised the issue with CO Avila, who suggested Benson complete an Interview/Request Form to have the discrepancy reviewed. Benson indicates that CO Avila confirmed on October 14, 2022, that the earbuds were not located with Benson’s stored property items. Benson returned to general population on December 12, 2022, and received the remainder of his property items, absent the earbuds. Benson alleges he contacted the property department and filed an inmate complaint, exhausting his administrative remedies.
DOC recommends denial of this claim. Benson filed a complaint through the Inmate Complaint Review System (ICRS) on December 21, 2022, which was rejected as untimely. (A complaint must be filed within 14 days after the occurrence giving rise to the complaint.) Benson appealed the rejection to the Warden, who affirmed the rejection. Because the complaint was rejected, the merits were never considered or investigated. Benson claims to have known of his missing earbuds on October 12, but did not file the ICRS complaint until 70 days later; he was 56 days late. DOC notes that Benson’s status in RHU would not prevent him from filing an ICRS complaint. DOC contends that Benson did not properly exhaust his administrative remedies, and that review of the rejected ICRS Complaint is not within the jurisdiction of the Claims Board.
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. Member Barnes dissenting.
11. Anthony C. Holschbach of Waupun, WI claims $1,694.70 for vehicle damage caused by a resident of a Department of Health Services (DHS) facility – Central Wisconsin Center (CWC). Claimant (the presumed owner of the subject vehicle driven by CWC employee Ana Sucely Holschbach) provides a DHS Security Incident Report which indicates that on October 3, 2021, a CWC resident became agitated while on an on-grounds walk and started striking vehicles with his fist. Claimant’s vehicle sustained a dent in the back left quarter panel. Claimant incurred costs from an autobody shop to repair the damage. (Note that the autobody shop estimate lists Claimant as the vehicle owner.)
DHS recommends full payment of this claim. Ms. Holschbach submitted an expense report to be reimbursed for the damage, which was denied due to DHS’s limited ability to reimburse employees for damaged personal articles. DHS points to the State of Wisconsin Compensation Plan, Section G 2.02, authorized by Wis. Stat. §§ 20.918 and 230.12(1)(dm), which states a reimbursement may not exceed $100 for any one incident. DHS has no other mechanism to reimburse Claimant or Ms. Holschbach. The Board concludes the claim should be paid in the amount of $1,694.70 based on equitable principles. The Board further concludes, under authority of Wis. Stat. § 16.007(6m), payment should be made from the Department of Health Services appropriation Wis. Stat. § 20.435(2)(gk). The Board concludes:
That payment of the amounts below to the identified claimant from the following statutory appropriations is justified under § 16.007(6)(b). Anthony C.
That the following identified claimants are denied:
Martha Vazquez
Jacquese Harrell, Sr.
Eugene Cherry
Patrick Fowler
De’Angelo Carter
Corey Benson
That the decision of the following claim is deferred to a later date:
Budget Dumpster, LLC
Dated at Madison, Wisconsin this 27th day of September, 2023.
R. DUANE HARLOW
Chair, Representative of the Attorney General
ANNE L. HANSON
Secretary, Representative of the Secretary of Administration
ERIC WIMBERGER
Senate Finance Committee
ALEX DALLMAN
Assembly Finance Committee
MEL BARNES
Representative of the Governor
