Many of us own and love dogs.   They are companions and members of our families.   But, dog owners have to be aware that in Wisconsin, they are responsible for any injuries caused by their dogs.   Wisconsin has a law commonly known as the “Dog Bite Statute.”   The common name is misleading, however, because a dog owner is liable for any injuries caused by their dog, not just a bite.   An owner of even the friendliest dog is liable if that dog playfully jumps up and knocks a person to the ground, injuring them.

Most communities also have laws requiring dogs be on a leash at all times when on public property.  These laws are often considered to be “Safety Statutes.”  When a person violates a Safety Statute and causes another person to be injured he is financially liable for those injuries.

While dog owners may know that their dogs are friendly and are only being curious, joggers, walkers, and bicyclists don’t know the nature of your dog. They may be afraid of dogs and may be easily startled or frightened by a strange dog bounding at them.

As a dog owner, do what is best for both you and your pet and attempt to avoid putting yourself in a position where your pet could injure another person. Abide by safety statutes, use a leash, and be aware of your surroundings and you will be able to reduce the risk of your dog causing serious injury to others.

Imagine you’re at Miller Park, watching an intense baseball game. You’re seated in outfield right in home run territory. You have your glove ready to catch any baseballs that come your way. The Brewers are up to bat at the bottom of the 9th inning. They are down by 2 runs and Carlos Gomez is up to bat. The count is three balls and two strikes with two outs and there are runners on second and third. The very next pitch could determine the outcome of the game.

 The ball is pitched right down the line and Gomez makes contact. The ball goes soaring right in your direction. As it approaches, you put your baseball glove in the air to catch it and the next thing you know, you wake up in the hospital.

 As the ball was coming into the stands, you missed the catch and the ball hit you right in the forehead causing injury. What do you do? Can you sue for a failure to provide adequate security?

 The answer is likely no because Wisconsin adopted the “baseball rule” in Powerless v. Milwaukee County where a spectator was struck by a foul ball. By choosing to sit in that area and attending a baseball game, the spectator assumed the risk of injury and was not able to sue the county or the baseball team owners. In this case, it is not necessary for the Brewers to put up a safety net protecting the spectators in the outfield. Although under these specific circumstances a patron may not be able to bring suit against a proprietor, in other circumstances, businesses may be liable to patrons for a failure to provide adequate security.

 On the other hand, when May Lee was trampled and injured as a crowd attempted to catch a foul ball at Milwaukee County Stadium, the Supreme Court of Wisconsin held the stadium was negligent for failure to provide adequate security. Lee v. National League Baseball Club of Milwaukee, Inc., 4 Wis. 2d 168, 170-171, 89 N.W.2d 811, 813 (1958). This situation is different from the previous situation where a patron paid for a seat in an area unprotected by a safety net and assumed the risk of being hit by a baseball because when Lee was injured there were supposed to be ushers present in that area to control the crowd and she was not hit by a baseball. Id. at 177, 89 N.W.2d at 816. Since the ushers could have played a role in controlling the crowd and were not present, the proprietor was held liable. Id. at 171, 89 N.W.2d at 813. Therefore, even two cases involving baseball have distinct analysis.

 In determining whether the proprietor of a business exercised ordinary care and provided adequate security, many factors are taken into account. Some examples include the nature of the establishment, the crowd that frequents the business, the history of altercations on the premises, etc. If the nature of the business is such that a proprietor should expect a risk of harm to patrons, the proprietor has a responsibility to take reasonable precautions to protect its patrons. This may require the furnishing of guards or attendants, or taking other necessary precautions to control the actions of the crowd.

 Each case typically requires an extensive investigation of criminal activity on and around the site. Expert testimony, in the form of a public safety officer or security consultant, is necessary. Experts can establish not only additional precautions that could have been implemented, but also that these steps would have made a difference and prevented the harm.

 One example of a failure to provide adequate security could occur in restaurant where a proprietor of a business is held liable for the acts of one patron assaulting and injuring another. When an injury occurs on the premises, either inside or in a parking lot, it is possible for the proprietor to be held liable. See Bevak v. N.Cent. Food Sys., Inc., 215 Wis. 2d 64, 67, 571 N.W.2d 912, 913 (Ct. App. 1997). Responsibility depends on whether the proprietor exercised “ordinary care” to protect its patrons from injury. In Weihert, only two prior incidents of assault in the restaurant had been reported in six years. Additionally, the incident arose suddenly and there were no warning signs that would allow the proprietor to take steps to minimize the potential harm. Therefore, the proprietor in this specific case was not held liable. However, a similar restaurant in a crime stricken area where multiple incidents occurred each month between the same two customers, the restaurant may have an obligation to provide security for safety of the patrons.

 One type of security commonly used to protect businesses is the use of security guards. But, even in cases where attendants or security guards are present, the proprietor may still be negligent. In Pfeifer v. Standard Gateway Theater, 259 Wis. 333, 334, 48 N.W.2d 505, 506 (1951), boys were throwing popcorn boxes in the theater. When the attendant walked into the theater, the boys stopped. Yet, the activity persisted for a substantial length of time and a boy was injured when a wad of paper launched with rubber band hit the child’s eye. The court held that the jury would decide whether the failure of the attendants to control the behavior of the patrons could have prevented the injury. Therefore, in this case it was possible for the proprietor to be held liable despite having an attendant because the proprietor did not act with reasonable care in controlling the incident.

 Each case has unique fact patterns that may or may not subject the proprietor of a business to suit for negligence. If you are injured on the premises of a business, there is a possibility that you may have a cause of action against the proprietor. So, the next time you are at a baseball game, remember the standard differs for failure to provide adequate security with respect to each type of business. While one business may require security guards to adequately protect patrons, another business may not even need a safety net.

The twists and turns of a Personal Injury Case in Wisconsin

Other states use modified comparative negligence. Within this modified category, there are two separate rules. One rule is the 50% rule which says that if the plaintiff and the defendant are equally at fault for causing the accident, the plaintiff will not recover anything. The second rule is the 51% rule which says that as long as the plaintiff’s negligence is not greater than the defendant’s negligence, he or she would still be able to recover. The difference between the two rules is that if both the plaintiff and the defendant were equally at fault, the 50% rule would provide no recovery, whereas under the 51% rule, the plaintiff would still be able to recover, but only half of the damages. Currently, Wisconsin follows the 51% rule. Wis. Stat. § 895.045(1) (2011-2012). But, Wisconsin has not always followed this rule. Prior to June 23, 1971, Wisconsin followed the 50% rule. That is where one of our very own attorneys comes into the picture.

On January 20, 1969, a woman fell as she was exiting a Milwaukee County bus. Kobelinski v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 504, 507, 202 N.W.2d 415, 418 (1972). As a result of the fall she fractured her left femur and underwent an open reduction surgery where her hip was pinned into place. Id. at 508, 202 N.W.2d at 418. After the accident, she retained the services of personal injury lawyer Jim Murphy. I worked with Jim, on many of his cases, and consider him to be one of the best personal injury lawyers that practiced in Milwaukee, in Wisconsin, or other parts of the nation.

I recall talking to Jim about the case, and how he handled this comparison question. At the time, the rule in effect in Wisconsin was a 50% rule, so that if the jury divided the fault equally, the plaintiff recovered nothing. That was a completely counter intuitive rule, that most people had no idea existed. And the lawyers could not tell the jury about this. Insurance company lawyers would really take advantage of this unknown, counter intuitive rule to argue for a 50-50 split on negligence. This was incredibly effective, as the defense was conceding negligence, and suggesting that just dividing it equally was a rational thing to do, and that trying to figure out a more precise number was just a guessing speculation. Dividing the fault equally was the theme, and that was the entire tenor of the argument, which was relentless.

How does one respond to an argument that seems reasonable but has dire consequences? Jim couldn’t tell the jury that an equal division of fault would result in a zero recovery for the plaintiff, so he did what he could.

In Jim’s closing argument he said, “if you should even remotely consider dividing the negligence fifty-fifty, that you would be doing the gravest injustice to my client, to Emily Kobelinski. So, I ask you to reject any kind of an apportionment of negligence that even remotely resembles fifty-fifty.” Kobelinski, 56 Wis. 2d at 519, 202 N.W.2d at 424.

Then, in his rebuttal argument, Jim said, “for God’s sake don’t consider fifty-fifty, because if you were to come back with that kind of verdict you would be doing my client the gravest kind of injustice.” Id.

On appeal, the defense counsel argued that the statements were improper and prejudicial because his statements informed the jury of the consequences of its decision. Id. at 520, 202 N.W.2d at 424. The Supreme Court held that while they did not approve of his statements, they did not constitute a prejudicial error because they did not “advise the jury of the result of its verdict.” Id. at 521, 202 N.W.2d at 425.

Jim set a strong example for all personal injury attorneys. He fought hard for his clients and did everything in his power to help them recover from their injuries. With Wisconsin’s current comparative negligence rule in mind, Murphy & Prachthauser attorneys continue Jim’s legacy and help prevent those injured from enduring the “gravest injustice.”

Bicycle Laws Promote SAFETY

S          Sidewalks

Check the local government rules to see if bicyclists are permitted to ride on sidewalks. If local rules permit sidewalk use by bicyclists, pedestrians have the right-of-way and bicyclists must use audible signals when passing pedestrians traveling in the same direction. (Wis. Stat.§ 346.94(1) and Wis. Stat. § 346.804.)

A         Accidents

Bicyclists have a duty to report accidents to the police involving injury, death, or property damage greater than $1,000. (Wis. Stat. § 346.70)

F          Far Right

Bicyclists are required to ride as far to the right as practicable and travel in the same direction as other vehicles. (Wis. Stat. § 346.80(2)(a))

E         Equipment

When riding at night, the bicycle must be properly equipped with a white front light visible from 500ft away and a back red reflector visible from at least 50ft away. (Wis. Stat. § 347.489(1))

T         Turn Signals

Bicyclists are required to use hand signals within 50ft of a turn. (Wis. Stat. § 346.35)

Y         Your Responsibility

Remember, bicycles are defined as vehicles, under Wisconsin law; and therefore, riders have the same responsibilities as drivers of other vehicles. (Wis. Stat. § 340.01(5) and § 346.02(4)(a))

The general purposes of this Association shall be to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be benefited by more efficient administration of justice consistent with time-tested and traditional principles of litigation.

Each year, the Wisconsin Chapter of this organization recognizes a trial judge for upholding this mission. This year, Murphy & Prachthauser attorneys, Don Prachthauser and Kevin Kukor, nominated Judge James Kieffer, a Waukesha County Circuit Court judge, for this award.

Out of approximately 250 circuit court judges across the state, Judge Kieffer was selected for this award. During the annual meeting of the Wisconsin Chapter of the American Board of Trial Advocates, Don Prachthauser had the honor of presenting this award to Judge Kieffer as the Trial Judge of the Year for 2013.

In the early 1960’s, the legislature enacted a law that immunized landowners from any claims when they open their property for recreational purposes. The original law was directed at natural settings, and activities such as hunting, fishing, and “berry picking.” A law professor at Marquette University Law School dubbed this the “berry picking statute,” and is known by many lawyers by that name.

Over the years, the law has been expanded to include almost any activity that a person does for enjoyment. The list includes

“any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle or utility terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting and any other outdoor sport, game or educational activity. “Recreational activity” does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.”

Wis. Stat. § 895.52(g) (2012-2013).

Our Wisconsin Appellate Courts have indicated that attendance at a “fair” is “substantially similar” to several “examples of the kinds of activities” enumerated in the definition of recreational activity: “nature study,” “sight-seeing,” as well as the generic phrase “any other … educational activity.” Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 488, 431 N.W.2d 696, 697 (Ct. App. 1988)

So what does this mean for patrons of Milwaukee Summerfest or the dozens of church festivals? Even if the promoter is negligent and causes injury, they may not be held responsible for the harm they caused.

Some exceptions:

While there is no case that is directly on point, the statute would not seem to apply to injuries caused by impure or improperly prepared food, or if going to Summerfest primarily to visit with friends. Another exception that may apply is the spectator exception. If you were viewing an organized team sport activity sponsored by the owner of the property on which the activity takes place, the owner would not be immune. See Meyer v. School District of Colby, 226 Wis. 2d 704, 595 N.W.2d 339 (1999).If a Summerfest patron is viewing such an activity at the sportzone area and is injured, the immunity may not apply. Finally, it is doubtful whether a failure to provide proper security personnel would be immune, as that relates to activities on the property rather than a condition of the property.

The analysis of whether immunity applies is heavily dependent on the facts of each individual case. The circumstances surrounding the injury make a difference on whether the entity is entitled to immunity. However, festival goers across Wisconsin should be aware of the recreational immunities statute and its repercussions, since non-profit organizations may be immune from liability for injuries.

Children learn the top pedestrian safety rules when they are young.
1. Look both ways before you cross the street.
2. Use the crosswalk.
3.Never walk around the back of a car.
From 2010 statistics, children under age fifteen only made up of 7% of the total pedestrian traffic fatalities, and these basic rules seem to be working. It is important to keep reinforcing safety rules among children to further reduce the statistics.

However, while a major focus is on child safety on the street, an increasing number of pedestrian accidents involve older adults or those age 65 and above. Of the accidents involving older adult pedestrians, over half did not occur at an intersection, a clear violation of rule number two. Therefore, maybe another rule should be added to the list and people should be more conscious of the older adult population and lend a helping hand.

In addition to age, gender and race or ethnicity also affected the pedestrian fatality rate. Male pedestrians are twice as likely to be injured or killed in a traffic accident. In a study done by the Center for Disease Control and Prevention, American Indians and Alaskan Natives had the highest death rates followed by Hispanics, Blacks, and Asian/Pacific Islanders. Whites had the lowest number of pedestrian deaths. Males are generally stereotyped as being higher risk-takers; however, it is alarming that minorities are disproportionately represented among the pedestrian mortality rates. The study did not cite specific reasons for the disparity and therefore, more research is necessary to reduce the high number of pedestrian minority deaths.

Some other factors that correlate with higher rates of injury or death to pedestrians include: time of day, urbanization level, and involvement of alcohol. Not surprisingly, more than half of traffic accidents with pedestrians occur at night and in urban areas. Another major culprit, both on the part of the driver and the pedestrian, is the presence of alcohol. Two more safety rules should be added to the growing list. When outside at night, people should make sure to take protective measures such as carrying a flashlight or wearing reflectors in poorly lit areas. In addition, people should be more conscious about the effects of alcohol, both as a driver and pedestrian. With motor skills impaired and heightened risk taking, pedestrians may be more susceptible to harm.

Pedestrian safety should be a top concern for all segments of the population. No subset of the population is invincible and all people should go back to the basic safety rules. In a world filled with distractions, it is ever more important to take precautions both as a pedestrian and driver to help reduce traffic related pedestrian fatalities in the future.

Trials typically have about a fifty percent satisfaction rate: there is always a party that wins, and there is always a party that loses. The losing party has the right to appeal. Some cases are better suited for appeal than others. To determine which cases are best suited to appeal, it is important to have an understanding of how Wisconsin’s court system works.

Wisconsin has a three-tier court system. The trial court, sometimes referred to as the circuit court, is where civil cases begin. Each of Wisconsin’s 72 counties has its own circuit court, with nearly 50 judges serving the largest county, Milwaukee County, while smaller counties have only one judge.

The circuit court is where a jury trial occurs, and this is where initial determinations are made, including insurance coverage, immunities, and what evidence must be turned over to the opponent. The trial court is where all evidence is received and where all facts in the case are determined. For example, the jury may determine which party had the green light in a traffic collision case.

Court of Appeals

Wisconsin’s appellate courts are divided into four districts, with each district having at least three judges. Appellate courts give deference to the trial court’s findings of fact while they review errors of law or a trial court’s abuse of discretion. This deference is given because the trial court is in the best position to judge the veracity of the litigants.

An appellate court is likely to take a case where some legal issue was decided incorrectly, where the trial court failed to appropriately apply precedent, or where no established precedent exists. An example of a case where a legal issue may arise might be where a minor driver is involved in a collision while driving a friend’s non-custodial parent’s vehicle. Another example may be where a statute has recently changed and lower courts seek guidance on interpretation or application of that statute. Other cases an appellate court may take include one where the trial court made an improper evidentiary ruling or where the court improperly instructed the jury.

When an appellate court reviews a case, typically three judges decide the case on legal briefs and the record of the evidence that was received in the trial court. Often, there is no oral argument. For example, of the 2,689 cases filed with the Court of Appeals last year, with 1,516 cases being civil and 1,173 being criminal, only one percent included oral argument by the attorneys. The rest were decided on briefs. The briefs must follow fairly strict requirements regarding their content, length, color of the cover, and even the type of font used. To see an example appellate brief, my brief for Brown v. Acuity can be found here: https://acefiling.wicourts.gov/documents/show_any_doc?appId=wscca&docSource=EFile&p[caseNo]=2011AP000583&p[docId]=89451&p[eventSeqNo]=58&p[sectionNo]=1

The Court of Appeals issues its opinions in one of three forms: per curiam, unpublished, and published. A per curiam opinion is not signed by a single judge, the opinion is usually brief, it signifies the appeal has no merit, and it is not usable in other cases. An unpublished opinion, in pre-internet days, was not easy obtain and, therefore, not citable. Today, unpublished opinions are available through the court’s website. An unpublished opinion indicates that the case involves legitimate issues that do not add to the already published jurisprudence. These opinions can be cited in briefs as persuasive authority, but they are not binding on the courts. A published opinion is binding on trial courts and courts of appeal in all four districts. An example of a published opinion of the court of appeals can be found here: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=77515

Wisconsin Supreme Court

The satisfaction rate for litigants receiving a decision from the Court of Appeals is about the same as for trial courts. The losing party can petition the Wisconsin Supreme Court for review. The Supreme Court is not required to hear every case and is very selective in the cases it takes. For example, in March of 2013, 98 petitions for review were filed, and the Court granted three petitions – two criminal and one civil. Further statistics for March can be seen here: http://www.wicourts.gov/sc/DisplayDocument.pdf?content=pdf&seqNo=95231

Annually, the Supreme Court is generally asked to review about 800 cases, and it usually accepts about 60 of those, with a few more being civil than criminal. The civil cases include family law, guardianship, probate, disputes between businesses, personal injury cases, and a host of other civil disputes. In any given year, only a very few cases the Supreme Court accepts are personal injury cases.

The types of cases the Supreme Court accepts generally deal with broad public policy issues, and the opinions the Court issues generally affect more than just the individuals involved in the case before the Court. In addition to reviewing cases, the Court has administrative tasks, such as rulemaking and attorney disciplinary cases.

The Wisconsin Supreme Court is made up of seven justices. Each of these justices participates in hearing oral arguments, which are conducted for every case the Court hears, reading the briefs, and issuing a decision. The Court is rarely unanimous in its decision, and an opinion may include concurring opinions, where a justice agrees with the result but for different reasons, and dissenting opinions, where a justice disagrees with the result.

An opinion by the Wisconsin Supreme Court on a matter of state law, such as negligence or a contract dispute, is final. The United States Supreme Court is almost never involved in reviewing a State Supreme Court for cases involving the interpretation of state laws.