Ronald J. Dakter v. Dale L. Cavallino ( 2015 )

2015 WI 67
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1750
COMPLETE TITLE: Ronald J. Dakter and Kathleen M. Dakter,
Plaintiffs-Respondents-Cross-
Appellants,
v.
Dale L. Cavallino, Hillsboro Transportation
Company, LLC
and Michigan Millers Mutual Insurance Company,
Defendants-Appellants-Cross-
Respondents-Petitioners.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 358 Wis. 2d 434, 856 N.W.2d 523)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 112
OPINION FILED: July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 22, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Juneau
JUDGE: John P. Roemer Jr.
JUSTICES:
CONCURRED: ROGGENSACK, C. J. concurs (Opinion filed).
ZIEGLER, joined by GABLEMAN, JJ. concur (Opinion
filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants-cross-respondents-
petitioners, there were briefs by Paul D. Curtis, Timothy M.
Barber and Axley Brynelson, LLP, Madison. Oral argument by Paul
D. Curtis.
For the plaintiffs-respondents-cross-appellants, there was
a brief by John R. Orton and Curran, Hollenbeck & Orton, S.C.,
Mauston. Oral argument by John R. Orton.
An amicus curiae brief was filed by William C. Gleisner,
III and Pitman, Kalkhoff, Sicula & Dentice, Milwaukee and Lynn
R. Laufenberg, and Laufenberg, Jassack & Laufenberg, Milwaukee,
on behalf of The Wisconsin Association for Justice. Oral
argument by William C. Gleisner.
2
2015 WI 67
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1750
(L.C. No. 2009CV147)
STATE OF WISCONSIN : IN SUPREME COURT
Ronald J. Dakter and Kathleen M. Dakter,
Plaintiffs-Respondents-Cross-
Appellants, FILED
v.
JUL 7, 2015
Dale L. Cavallino, Hillsboro Transportation
Company, LLC, and Michigan Millers Mutual Diane M. Fremgen
Clerk of Supreme Court
Insurance Company,
Defendants-Appellants-Cross-
Respondents-Petitioners.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a
published decision of the court of appeals affirming a judgment
and order of the Circuit Court for Juneau County, John P.
Roemer, Judge.1
1
Dakter v. Cavallino, 2014 WI App 112, 358 Wis. 2d 434, 856
N.W.2d 523.
No. 2013AP1750
¶2 This case arises from the collision of a passenger
automobile driven by Ronald J. Dakter, the plaintiff,2 and a 65-
foot semi-trailer truck operated by Dale Cavallino, the
defendant.3 After a 10-day trial, the jury found the defendant
65 percent causally negligent and the plaintiff 35 percent
causally negligent and assessed damages at $1,097,955.86 for the
plaintiff and $63,366 for the plaintiff's wife.
¶3 The defendant raises only one question of law for our
consideration: Was the truck driver negligence instruction
given to the jury on the standard of care applicable to the
defendant as the operator of a semi-trailer truck erroneous,
such that the defendant is entitled to a new trial?
¶4 The truck driver negligence instruction that is the
subject of the defendant's challenge provided in relevant part
as follows:
2
For ease of reference, we refer to Ronald J. Dakter as the
plaintiff. Kathleen M. Dakter, the plaintiff's wife, is also a
complainant in the instant case and was awarded damages for her
injuries. Ms. Dakter is governed by the court's ruling in the
instant case.
3
For ease of reference, we refer to Dale Cavallino as the
defendant. Hillsboro Transportation Company, LLC (the
defendant's employer) and Michigan Millers Mutual Insurance
Company (the employer's insurance provider) are also defendants.
They are governed by the court's ruling in the instant case.
The parties, the circuit court, and the court of appeals
refer to the truck operated by the defendant in various ways——as
a semi, a semi truck, a semi-tractor trailer, and a semi-trailer
truck. We refer to it as a semi-trailer truck throughout this
opinion.
2
No. 2013AP1750
At the time of the accident, the defendant, Dale
Cavallino was a professional truck driver operating a
semi tractor-trailer pursuant to a commercial driver's
license issued by the State of Wisconsin. As the
operator of a semi tractor-trailer, it was [the
defendant's] duty to use the degree of care, skill,
and judgment which a reasonable semi truck driver
would exercise in the same or similar circumstances
having due regard for the state of learning,
education, experience, and knowledge possessed by semi
truck drivers holding commercial driver's licenses. A
semi truck driver who fails to conform to the standard
is negligent. The burden is on the plaintiff to prove
that [the defendant] was negligent.
¶5 The defendant asserts that the truck driver negligence
instruction was erroneous because it directed the jury to
consider the defendant's special knowledge and skill as a semi-
trailer truck driver when determining whether the defendant was
negligent. According to the defendant, an instruction regarding
an actor's special knowledge and skill should not be given in
"mine-run" motor vehicle negligence cases like the instant case;
it should be given only in professional negligence cases. The
defendant contends that by giving an instruction regarding the
defendant's special knowledge and skill, the circuit court
imposed a heightened standard of care on him. This, says the
defendant, was prejudicial error entitling him to a new trial.
¶6 In contrast, the plaintiff contends that the truck
driver negligence instruction directed the jury to take the
special knowledge and skill possessed by professional semi-
trailer truck drivers into account only in order to determine
whether the defendant met the standard of ordinary care. In the
plaintiff's view, the truck driver negligence instruction did
3
No. 2013AP1750
not impose a heightened standard of care on the defendant and
was not erroneous.
¶7 The circuit court sided with the plaintiff, entering a
judgment on the verdict in favor of the plaintiff and denying
the defendant's post-verdict motions.
¶8 The court of appeals affirmed the judgment and order
of the circuit court. The court of appeals explained that it
did not consider the challenged jury instruction a misstatement
of the law:
[I]n evaluating whether an actor has acted as a
reasonable person would, jurors may consider the
actor's superior knowledge or skills when the
knowledge or skills give the actor an ability to avoid
injury or damage to others. If someone "has skills or
knowledge that exceed those possessed by most others,
these skills or knowledge are circumstances to be
taken into account in determining whether the actor
has behaved as a reasonable careful person."4
¶9 The court of appeals further explained that although
the truck driver negligence instruction was not incorrect, a
jury could possibly have misinterpreted the instruction as
imposing a higher standard of care on semi-trailer truck drivers
than that applied to other drivers:
[W]e see at least some danger that the truck driver
instruction could have been interpreted by the jury to
suggest that [the defendant] should be held to a
different, higher standard of care than other drivers
because he is a professional truck driver. . . . If
understood this way, it would state the legal doctrine
incorrectly.5
4
Dakter, 358 Wis. 2d 434, ¶39 (quoted source omitted).
5
Id., ¶44.
4
 No. 2013AP1750
¶10 The court of appeals ultimately concluded that it was
"at least as likely as not that jurors aiming to apply the
[truck driver negligence] instruction would have hit the mark by
focusing on evidence of [the defendant's] superior knowledge and
skills, and not missed the mark by holding him to a separate,
higher truck driver standard of care."6
¶11 Nevertheless, the court of appeals opted to assume,
without deciding, that the truck driver negligence instruction
was erroneous. It then denied the defendant relief, concluding
that any error in the challenged jury instruction was not
prejudicial.
¶12 We conclude that the circuit court did not err in
giving the truck driver negligence instruction. The truck
driver negligence instruction did not misstate the law and was
not misleading. The defendant's arguments to the contrary are
not persuasive, and the defendant is not entitled to a new
trial. Accordingly, although our reasoning differs, we affirm
the decision of the court of appeals.
I
¶13 Many details about the collision that spawned the
instant litigation remain in dispute. The following description
of the collision focuses on the uncontested facts.
¶14 The collision took place on May 29, 2008, at the
intersection of State Trunk Highway 80 (running north/south) and
6
Id., ¶47.
5
 No. 2013AP1750
State Trunk Highway 82 (running east/west). This intersection
is located in Elroy, Juneau County, Wisconsin.
¶15 The plaintiff was driving a passenger automobile
northbound on Highway 80. He intended to turn left onto Tilmar
Street, which is the portion of Highway 82 running west of
Highway 80. He approached the intersection with his turn signal
on and stopped.
¶16 Wyman Hoiland, who is not a party to this lawsuit, was
driving a van southbound on Highway 80 and intended to turn left
onto Highway 82. Hoiland approached the intersection with his
turn signal on and stopped. His vehicle was opposite the
plaintiff's vehicle in the intersection and was in front of the
defendant's semi-trailer truck.
¶17 The defendant, who had a commercial driver's license
issued by the State of Wisconsin and had driven a semi-trailer
truck for 31 years, was driving a 65-foot semi-trailer truck
southbound on Highway 80. The defendant intended to continue
straight on Highway 80.
¶18 As the defendant approached the intersection, Hoiland
may have turned left, permitting the defendant to remain in his
lane and continue straight. Alternatively, Hoiland may have
remained in the intersection waiting to turn left, leading the
defendant to switch into the right-hand lane in order to drive
around Hoiland and continue straight.
¶19 In any event, it is undisputed that the plaintiff
attempted to execute a left turn onto Tilmar Street and collided
6
No. 2013AP1750
with the defendant's semi-trailer truck. The plaintiff
sustained serious injuries.
¶20 The plaintiff filed suit against the defendant,
asserting that the defendant's negligence caused the collision.
¶21 Before trial, the parties agreed that the usual
standard of ordinary care applies to semi-trailer truck drivers.
They disagreed, however, about whether the jury should hear
expert testimony regarding the special knowledge and skill
possessed by semi-trailer truck drivers.
¶22 The circuit court agreed with the position of both
parties that the standard of ordinary care applies to semi-
trailer truck drivers, stating as follows: "I don't believe
there is a heightened standard of care. I believe all of us are
required to maintain our speed, maintain our management, control
of our vehicles, and also to maintain a proper look-out."
¶23 The circuit court went on to explain that with regard
to semi-trailer truck drivers, ordinary care means the care "a
reasonable and prudent truck driver would use under the same or
similar circumstances." Accordingly, the circuit court ruled
that expert testimony regarding the knowledge and skill
possessed by semi-trailer truck drivers was admissible.
¶24 Three expert witnesses testified regarding the safety
standards and practices that govern semi-trailer truck drivers.
¶25 The plaintiff called Charles Collins, a retired truck
driving safety instructor for a driver training program at a
technical college, as an expert witness. Collins explained,
among other things, that the defendant was driving his semi-
7
No. 2013AP1750
trailer truck with an empty trailer and that "[i]t takes longer
to stop with an empty trailer." Collins also explained that the
pavement was wet and that "[w]hen the pavement is wet, it is
accepted in all literature, textbooks, [and] videos that you
must reduce your speed by a third," which the defendant did not
do.
¶26 The plaintiff also called Andrew Sievers, a safety
consultant, as an expert witness. Sievers testified about
defensive driving techniques for semi-trailer truck drivers,
including the "cushion of safety" (that is, the distance) that
semi-trailer truck drivers should maintain between the front of
their trucks and the back of the vehicles in front of them.
Sievers opined that the defendant had not been maintaining a
proper cushion of safety when the collision occurred. Sievers
also explained that an intersection is "the location where a
truck driver has the most likelihood to be involved in an
accident, and because of that . . . the truck driver should be
extra cautious and should reduce their speed . . . ." Sievers
testified that in his opinion, the defendant was driving at an
unsafe speed considering that he was entering an intersection in
rainy weather.
¶27 The defendant called William Emerick, a safety
consultant, as an expert witness. Emerick discussed the
importance of maintaining hazard awareness and using common
sense when operating a semi-trailer truck. Emerick also
asserted that driving as slowly as official safety standards
require can be dangerous, even when approaching an intersection
8
No. 2013AP1750
in rainy weather, because it can cause "traffic backup" and is
"something people wouldn't expect." Emerick testified that in
his view, when the accident occurred, the defendant was driving
his truck in conformity with normal safe driving practices and
industry standards for drivers of commercial motor vehicles.
¶28 When the circuit court took up the issue of jury
instructions near the close of trial, the parties revisited the
subject of the special knowledge and skill possessed by semi-
trailer truck drivers. After lengthy argument, the circuit
court gave the truck driver negligence instruction, an
instruction specific to the defendant as the operator of a semi-
trailer truck.
¶29 The jury returned a verdict in favor of the plaintiff.
The defendant filed post-verdict motions seeking a new trial.
The circuit court denied the defendant's post-verdict motions
and entered a judgment on the verdict in favor of the plaintiff.
The court of appeals affirmed.
II
¶30 Because the defendant challenges a jury instruction,
we first recite the standard of review applicable to a challenge
to jury instructions.
¶31 A circuit court has broad discretion in crafting jury
instructions based on the facts and circumstances of the case.7
A circuit court is required, however, to exercise its discretion
7
State v. Neumann, 2013 WI 58, ¶89, 348 Wis. 2d 455, 832
N.W.2d 455.
9
No. 2013AP1750
"to fully and fairly inform the jury of the rules of law
applicable to the case and to assist the jury in making a
reasonable analysis of the evidence."8
¶32 We review jury instructions as a whole to determine
whether "the overall meaning communicated by the instructions
was a correct statement of the law . . . ."9 Whether the circuit
court erred by stating the law incorrectly or in a misleading
manner constitutes a question of law this court decides
independently of, but benefiting from, the analyses of the
circuit court and court of appeals.10
¶33 Even if the truck driver negligence instruction was in
error, the defendant is not necessarily entitled to a new trial.
Erroneous jury instructions warrant reversal and a new trial
only when the error is prejudicial.11 Whether an error is
prejudicial is a question of law this court decides
independently of, but benefiting from, the analyses of the
circuit court and court of appeals.12
III
8
Neumann, 348 Wis. 2d 455, ¶89 (internal quotation marks
omitted).
9
Fischer by Fischer v. Ganju, 168 Wis. 2d 834, 850, 485
N.W.2d 10, 16 (1992).
10
Neumann, 348 Wis. 2d 455, ¶89.
11
Fischer, 168 Wis. 2d at 849-50.
12
Weborg v. Jenny, 2012 WI 67, ¶43, 341 Wis. 2d 668, 816
N.W.2d 191.
10
No. 2013AP1750
¶34 Our analysis of the truck driver negligence
instruction has three parts.
¶35 First, we set forth the negligence principles that
govern the instant dispute, namely the superior knowledge rule,
which requires an actor with special knowledge or skill to act
commensurate with that knowledge or skill, and the profession or
trade principle, which requires an actor engaged in a profession
or trade to act as a reasonable member of such profession or
trade would act under the same or similar circumstances.
¶36 Second, we determine that these two negligence
principles apply to the defendant and thus that the truck driver
negligence instruction did not misstate the law.
¶37 Third, we determine that in the context of the jury
instructions as a whole, the truck driver negligence instruction
was not misleading.
¶38 Because the truck driver negligence instruction was
neither incorrect nor misleading, we conclude that the circuit
court did not err. We therefore need not and do not address the
issue of prejudice.
A
¶39 We begin with well-settled principles of negligence.
¶40 Negligence is the failure to exercise ordinary care
under the circumstances, that is, the failure to exercise "that
11
No. 2013AP1750
degree of care which under the same or similar circumstances the
great mass of mankind would ordinarily exercise."13
¶41 The standard of ordinary care is an objective
standard; it is the care that would be exercised by a reasonable
actor under the circumstances.
¶42 The circumstances that demarcate the bounds of
ordinary care in a particular case include any relevant special
knowledge or skill the actor brings to bear.14 This principle is
sometimes called the "superior knowledge rule."15
¶43 Restatement (Second) of Torts § 289, at 41 (1965) sets
forth the superior knowledge rule as follows: "The actor is
required to recognize that his conduct involves a risk of
causing an invasion of another's interest if a reasonable man
would do so while exercising . . . (b) such superior attention,
perception, memory, knowledge, intelligence, and judgment as the
actor himself has."16
13
Osborne v. Montgomery, 203 Wis. 223, 231, 234 N.W. 372
(1931).
14
Id. at 231.
15
See, e.g., 1 Dan B. Dobbs et al., The Law of Torts § 132,
at 417 (2nd ed. 2011).
16
Comment m. to Restatement (Second) of Torts § 289 (1965)
explains:
m. Superior qualities of actor. The standard of the
reasonable man requires only a minimum of attention,
perception, memory, knowledge, intelligence, and
judgment in order to recognize the existence of the
risk. If the actor has in fact more than the minimum
of these qualities, he is required to exercise the
(continued)
12
No. 2013AP1750
¶44 Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 12, at 141 (2010) describes the superior
knowledge rule as follows: "If an actor has skills or knowledge
that exceed those possessed by most others, these skills or
knowledge are circumstances to be taken into account in
determining whether the actor has behaved as a reasonably
careful person."17
¶45 In the seminal Wisconsin case of Osborne v.
Montgomery, 203 Wis. 223, 234 N.W. 372 (1931), this court made
clear that the superior knowledge rule applies in Wisconsin.
¶46 The Osborne court first defined negligence as conduct
that foreseeably creates an unreasonable risk of harm to the
interests of another, stating:
Every person is negligent when, without intending to
do any wrong, he does such an act or omits to take
such a precaution that under the circumstances present
he, as an ordinarily prudent person, ought reasonably
to foresee that he will thereby expose the interests
of another to an unreasonable risk of harm.18
¶47 The Osborne court then declared: "If the actor in a
particular case in fact has superior perception or possesses
superior qualities that he has in a manner reasonable
under the circumstances. The standard becomes, in
other words, that of a reasonable man with such
superior attributes.
17
According to the Reporter's Note to Restatement (Third)
of Torts, § 12 derives in part from Restatement (Second) of
Torts § 289(b), comment m, set forth at note 16, supra.
18
Osborne, 203 Wis. at 242.
13
No. 2013AP1750
superior knowledge, he is required to exercise his superior
powers in determining whether or not his conduct involves an
unreasonable risk of injury to the interests of
another . . . ."19 Thus, pursuant to the superior knowledge rule
adopted in Osborne, an actor with special knowledge or skill
meets the standard of ordinary care by employing that special
knowledge or skill.
¶48 Various tort texts provide similar explanations of the
superior knowledge rule. See, for example, the following:
• "The superior knowledge rule can be explained by
saying that the actor's superior knowledge is one of
the 'circumstances' that a reasonable person would
take into account or by saying that a reasonable
person will use all the knowledge he actually has in
dealing with a recognizable risk. . . . . So it is
right to tell a jury that a reasonable person will use
the relevant special knowledge he has, but not right
to tell the jury that he is held to a higher standard
of care." 1 Dan B. Dobbs et al., The Law of Torts
§ 132, at 417 (2nd ed. 2011) (footnotes omitted).
• "[I]f a person in fact has knowledge, skill, or even
intelligence superior to that of the ordinary person,
the law will demand of that person conduct consistent
with it. Experienced milk haulers, hockey coaches,
19
Osborne, 203 Wis. at 243.
14
No. 2013AP1750
expert skiers, construction inspectors, and doctors
must all use care which is reasonable in light of
their superior learning and experience, and any
special skills, knowledge or training they may
personally have over what is normally possessed by
persons in the field." W. Page Keeton et al., Prosser
and Keaton on Torts § 32, at 185 (5th ed. 2000)
(footnotes omitted).
• "In addition to the knowledge that may be imputed to a
reasonable person, a person's actual knowledge and
skills may be taken into account when the level of the
person's knowledge or skills exceeds the average." 1
J.D. Lee & Barry A. Lindahl, Modern Tort Law:
Liability & Litigation § 3:21 (2d ed. 1990).
¶49 These texts neither bind this court nor declare the
law of Wisconsin. They do, however, support the superior
knowledge rule adopted in Osborne.
¶50 The parties' briefs and the court of appeals opinion
spend much time discussing the superior knowledge rule and
debating whether it applies to the defendant. A close
examination of the briefs and the court of appeals opinion,
however, reveals that the parties and the court of appeals have
at times conflated the superior knowledge rule with a related
negligence principle that applies to individuals engaged in a
profession or trade. We turn to that principle now.
¶51 Ordinarily, actors engaged in a profession or trade
must exercise the knowledge and skill that a reasonable member
15
No. 2013AP1750
of that profession or trade would exercise under the same or
similar circumstances.20 In Kerkman v. Hintz, 142 Wis. 2d 404,
419-20, 418 N.W.2d 795 (1988), for example, this court stated
that "a chiropractor must exercise the degree of care,
diligence, judgment, and skill which is exercised by a
reasonable chiropractor under like or similar circumstances."21
¶52 Various Wisconsin pattern jury instructions regarding
the standard of ordinary care applicable to those in particular
professions and trades illustrate the principle that a person
engaged in a profession or trade must act commensurate with the
knowledge and skill a reasonable member of that profession or
trade possesses.
¶53 For example, the Wisconsin pattern jury instruction
titled "Negligence: Building Contractor" defines the ordinary
care standard applied to building contractors as the degree of
care exercised by a reasonably prudent and skilled contractor
engaged in a similar construction project. Thus, a jury must
consider the knowledge and skill possessed by building
20
Restatement (Second) of Torts § 299A explains the role an
actor's engaging in a profession or trade plays in determining
whether the actor was negligent as follows: "Unless he
represents that he has greater or less skill or knowledge, one
who undertakes to render services in the practice of a
profession or trade is required to exercise the skill and
knowledge normally possessed by members of that profession or
trade in good standing in similar communities."
21
See also Zastrow v. Journal Commc'ns, Inc., 2005 WI App
178, ¶25, 286 Wis. 2d 416, 703 N.W.2d 673 ("In the professional
negligence case, the duty is . . . based on what a reasonable
professional would do in the same or similar circumstances.").
16
No. 2013AP1750
contractors to determine whether a particular contractor's
conduct met the standard of ordinary care.
¶54 The pattern jury instruction applicable to building
contractors provides in full as follows:
A building contractor has a duty to exercise ordinary
care in the construction or remodeling of a building.
This duty requires such contractor to perform work
with the same degree of care and skill and to provide
such suitable materials as are used and provided by
contractors of reasonable prudence, skill, and
judgment in similar construction.22
¶55 Likewise, the pattern jury instruction titled
"Negligence of Insurance Agent" defines the ordinary care
standard applied to insurance agents by reference to the care,
skill, and judgment usually employed by agents licensed to sell
insurance in Wisconsin. Accordingly, a jury must consider the
knowledge and skill possessed by licensed insurance agents to
determine whether a particular agent's conduct met the standard
of ordinary care.
¶56 This pattern jury instruction reads in relevant part
as follows: "An insurance agent, such as (defendant), must use
the degree of care, skill, and judgment which is usually
exercised under the same or similar circumstances by insurance
agents licensed to sell insurance in Wisconsin."23
¶57 These are just two of several examples of Wisconsin's
adoption of the profession or trade principle. The profession
22
Wis JI——Civil 1022.4.
23
Wis JI——Civil 1023.6.
17
No. 2013AP1750
or trade principle is similarly reflected in pattern jury
instructions regarding the standard of ordinary care applicable
to teachers,24 chiropractors,25 doctors,26 nurses and licensed
technicians,27 dentists,28 and lawyers.29
24
Wis JI——Civil 1381 (providing in relevant part that a
teacher must "maintain that degree of supervision which an
ordinarily prudent (chemistry teacher, physical education
teacher, manual arts teacher) would maintain under the same or
similar circumstances").
25
Wis JI——Civil 1023.8 (stating that a chiropractor is
"required to use the degree of care, skill, and judgment which
reasonable chiropractors would exercise in [] like or similar
circumstances, having due regard for the state of chiropractic
knowledge at the time (plaintiff) was treated").
26
Wis JI——Civil 1023 (explaining that a doctor is required
to use the degree of care, skill, and judgment which a
reasonable doctor in the same medical sub-field would exercise
"in the same or similar circumstances, having due regard for the
state of medical science at the time (plaintiff) was (treated)
(diagnosed)").
27
Wis JI——Civil 1023.7 (stating that registered nurses and
licensed technicians have the duty "to use the degree of care,
skill, and judgment which reasonable (registered nurses)
(licensed technicians) would exercise in the same or similar
circumstances, having due regard for the state of learning,
education, experience, and knowledge possessed by (registered
nurses) (licensed technicians) at the time in question").
Plaintiff's counsel told the circuit court that he modeled
his proposed truck driver negligence instruction after the
instruction applicable to nurses and licensed technicians.
28
Wis JI——Civil 1023.14 (providing that a dentist must
exercise "the degree of care, skill, and judgment" that a
reasonable dentist would exercise "in the same or similar
circumstances, having due regard for the state of dental science
at the time (plaintiff) was (treated) (diagnosed)").
18
No. 2013AP1750
¶58 The profession or trade principle and the superior
knowledge rule are closely related. Both recognize that a
reasonable actor will use any relevant special knowledge or
skill the actor possesses, including the knowledge and skill the
person possesses on account of his or her occupation.30
¶59 The two doctrines also work in combination in certain
cases: An actor engaged in a profession or trade who has
knowledge or skill superior to that of a reasonable person
within that profession or trade must employ such knowledge or
skill in order to meet the standard of ordinary care.
¶60 Dobbs' text on torts explains the overlapping
relationship between these two negligence doctrines as follows:
Superior or specialized knowledge or skill. A
reasonable person will act in the light of (a)
knowledge shared by the community generally and also
(b) information, knowledge and skill that he himself
has that is not generally known and that reasonable
people would not ordinarily have. . . .
29
Wis JI——Civil 1023.5 (stating that "it is a lawyer's duty
to use the degree of care, skill, and judgment which reasonably
prudent lawyers practicing in this state would exercise under
like or similar circumstances").
30
The Reporter's Note to Restatement (Third) of Torts § 12,
at 144, illustrates the connection between the profession or
trade principle and the superior knowledge rule by explaining
that the superior knowledge rule "can easily be applied to cases
involving the liability of professionals. Those professionals
routinely represent themselves as having special knowledge and
skills . . . ." (Citation omitted.)
See also Restatement (Second) of Torts § 299A, cmt. a., at
73 (1965), stating: "All professions, and most trades, are
necessarily skilled . . . ."
19
No. 2013AP1750
The superior knowledge rule has obvious application to
professionals like physicians and surgeons, who are
held to possess the skills and knowledge of others in
good standing in their profession. A physician who
knows more than a layman must use that additional
knowledge in the practice of medicine. But the point
reaches even further. A physician who knows more than
other physicians is also expected to use that special
knowledge. . . . The principle applies equally to any
kind of skill or experience.
Reasonable person standard and superior knowledge. The
superior knowledge rule can be explained by saying
that the actor's superior knowledge is one of the
"circumstances" that a reasonable person would take
into account or by saying that a reasonable person
will use all the knowledge he actually has in dealing
with a recognizable risk. Either way, the standard of
care, that of the reasonable person under the same or
similar circumstances, remains the same. So it is
right to tell a jury that a reasonable person will use
the relevant special knowledge he has, but not right
to tell the jury that he is held to a higher standard
of care.31
¶61 Importantly, although both the superior knowledge rule
and the profession or trade principle describe the circumstances
the jury is to consider in determining negligence, neither
doctrine sets forth a heightened standard of care.32
¶62 In sum:
31
1 Dobbs et al., supra note 15, § 132, at 416-17
(footnotes omitted, emphasis added).
32
Restatement (Third) of Torts § 12, comment a. at 142,
explains: "It can be noted that even though the actor's extra
skills can properly be considered, these skills do not establish
for the actor a standard of care that is higher than reasonable
care; rather, they provide a mere circumstance for the jury to
consider in determining whether the actor has complied with the
general standard of reasonable care."
20
No. 2013AP1750
• Under the superior knowledge rule, a person with
special knowledge or skill is required to exercise the
care a reasonable person with such special knowledge
or skill would exercise under the same or similar
circumstances.
• Under the profession or trade principle, a person
engaged in a profession or trade is required to
exercise the care a reasonable member of the
profession or trade would exercise under the same or
similar circumstances.
• Regardless of whether the jury applies the superior
knowledge rule, the profession or trade principle,
both doctrines, or neither doctrine, the standard of
care remains that of ordinary care.
¶63 With these negligence principles in mind, we turn to
the truck driver negligence instruction, which is the subject of
the defendant's challenge in the present case.
B
¶64 We now explore whether the superior knowledge rule and
the profession or trade principle apply to the defendant in the
instant case. We conclude that they do and thus that the truck
driver negligence instruction did not misstate the law.
¶65 The truck driver negligence instruction required the
jury to consider the defendant's special knowledge or skill as a
"professional" semi-trailer truck driver, thereby incorporating
both the superior knowledge rule and the profession or trade
principle. The instruction provided as follows:
21
No. 2013AP1750
At the time of the accident, the defendant, Dale
Cavallino, was a professional truck driver operating a
semi tractor-trailer pursuant to a commercial driver's
license issued by the State of Wisconsin. As the
operator of a semi tractor-trailer, it was [the
defendant's] duty to use the degree of care, skill,
and judgment which a reasonable semi truck driver
would exercise in the same or similar circumstances
having due regard for the state of learning,
education, experience, and knowledge possessed by semi
truck drivers holding a commercial driver's license.
A semi truck driver who fails to conform to the
standard is negligent. The burden is on the plaintiff
to prove that [the defendant] was negligent.
¶66 The defendant asserts, however, that neither the
superior knowledge rule nor the profession or trade principle
applies to him.
¶67 The defendant concedes that an individual must undergo
specific training and testing to obtain a commercial driver's
license and operate a semi-trailer truck. Nevertheless, the
defendant contends that the jury cannot take into account the
special knowledge or skill required to operate a semi-trailer
truck. According to the defendant, "all users of the roadway
have the same duty of ordinary care regardless of their driving
experience or skills." In the defendant's view, permitting a
jury to "consider a driver's individual skill, experience, and
training would result in an unworkable subjective standard of
care with 'ceaseless variations.'"33
33
The defendant places heavy reliance on Saxby v. Cadigen,
266 Wis. 391, 63 N.W.2d 820 (1954), and on several cases from
other jurisdictions, for the proposition that it is error to
instruct a jury to consider the knowledge, skill, or experience
of particular drivers in a motor vehicle negligence case.
(continued)
22
No. 2013AP1750
¶68 The defendant further contends that the profession or
trade principle applies only in professional malpractice cases,
that is, in situations in which the actor is providing a highly
specialized professional service to the plaintiff that involves
a unique standard of care. The defendant points out that he was
not providing a service to the plaintiff and that semi-trailer
truck driving is not the kind of highly specialized occupation
normally classified as a profession.
¶69 We disagree with the defendant and conclude that both
the superior knowledge rule and the profession or trade
principle apply to the defendant. We review them in turn.
¶70 Insofar as the defendant argues that the superior
knowledge rule does not apply to semi-trailer truck drivers, he
is plainly incorrect. The skill and knowledge required to drive
a semi-trailer truck are not part of the "ordinary equipment" of
a reasonable person.34 Rather, they are the result of acquired
learning and experience.
None of the cases the defendant cites are on all fours with
the instant case. Some do not involve trucks. Others were
decided before the adoption of the special rules, regulations,
and standards that now govern the licensure of semi-trailer
truck drivers and the operation of semi-trailer trucks. See,
e.g., Fredericks v. Castora, 360 A.2d 696 (Pa. Super. 1976). In
short, the cases cited by the defendant do not address whether
it was error to give a jury instruction setting forth a standard
of care particular to the defendant as a professional truck
driver operating a semi-trailer truck pursuant to a commercial
driver's license.
34
See Restatement (Second) of Torts § 299A, cmt. a (1965).
23
No. 2013AP1750
¶71 The defendant was required to, and did, undergo
specialized testing and obtain a specialized license to
demonstrate that he possesses the special knowledge and skill
necessary to safely operate a semi-trailer truck. The
defendant's assertion that this special knowledge and skill
could not be considered by the jury is not cogent.
¶72 The statutes and regulations applicable to semi-
trailer trucks and semi-trailer truck drivers bolster our
conclusion that the superior knowledge rule applies to the
defendant.
¶73 Semi-trailer trucks are commercial motor vehicles.
Under Wis. Stat. § 343.05(2) (2007-08),35 a person can operate a
commercial motor vehicle only if certain conditions are met.
Among other requirements, the person must carry a commercial
driver's license that is not revoked, suspended, canceled, or
expired.36
¶74 Federal regulations likewise dictate that those
operating commercial motor vehicles must generally carry a
commercial driver's license.37 Federal regulations also specify
the knowledge and skills drivers must possess in order to obtain
35
All subsequent references to the Wisconsin Statutes are
to the 2007-08 version unless otherwise indicated.
36
See Wis. Stat. § 343.05(2). An exception is set forth at
Wis. Stat. § 343.055, titled "Commercial Driver License
Waivers."
37
See, e.g., 49 C.F.R. § 383.23(a).
24
No. 2013AP1750
such licensure. Three provisions are particularly relevant in
the instant case.
¶75 First, 49 C.F.R. § 383.110 provides that to ensure
safety, commercial motor vehicle drivers are required to have
the baseline level of knowledge and skills set forth in
subsequent provisions. It states in full as follows:
All drivers of [commercial motor vehicles] must have
the knowledge and skills necessary to operate a
[commercial motor vehicle] safely as contained in this
subpart. The specific types of items that a State
must include in the knowledge and skills tests that it
administers to [commercial driver's license]
applicants are included in this subpart.
¶76 Second, 49 C.F.R. § 383.111 sets forth and explains 20
areas in which commercial motor vehicle operators are required
to have specified knowledge to obtain a commercial driver's
license. These areas include safe operations regulations, speed
management, extreme driving conditions, hazard perceptions, and
emergency maneuvers.38
¶77 Third, 49 C.F.R. § 383.113 enumerates the skills a
commercial motor vehicle operator must possess to obtain a
commercial driver's license. These skills include identifying
safety-related vehicle parts, like the engine compartment and
brakes;39 inspecting and operating air brakes;40 and safely
38
See 49 C.F.R. § 383.111(a).
39
See 49 C.F.R. § 383.113(a)(1).
40
See 49 C.F.R. § 383.113(a)(2).
25
No. 2013AP1750
driving the vehicle by, for example, maintaining "a safe
following distance depending on the condition of the road."41
¶78 These state statutes and federal regulations
demonstrate that the conduct of a semi-trailer truck driver
should be assessed by reference to the conduct of a reasonable
person with the special competence required of semi-trailer
truck drivers——not by reference to the conduct of a reasonable,
ordinary driver.
¶79 We turn to the profession or trade principle, which
was incorporated into the truck driver negligence instruction.
¶80 The Wisconsin pattern jury instructions discussed
previously demonstrate that the profession or trade principle
applies not merely to highly specialized professionals, as the
defendant asserts, but more broadly to those engaged in
occupations that require the exercise of "acquired learning, and
aptitude developed by special training and experience."42
¶81 Restatement (Second) of Torts § 299A is also helpful
in determining what constitutes a profession or trade. A
comment to § 299A references a wide range of occupations
(including plumbers, carpenters, and blacksmiths) to which the
profession or trade principle generally applies. This comment
reinforces our conclusion that the profession or trade principle
has broader applicability than the defendant lets on. It
41
See 49 C.F.R. § 383.113(c)(6).
42
Restatement (Second) of Torts § 299A, cmt. a (1965).
26
No. 2013AP1750
governs an actor in the performance of his or her occupation so
long as reasonably performing that occupation requires acquired
learning and aptitude developed by special training and
experience.43
¶82 Clearly, driving a semi-trailer truck constitutes a
profession or trade within the context of the profession or
trade principle. It was therefore appropriate for the jury to
evaluate the defendant's conduct by reference to the conduct of
a reasonable semi-trailer truck driver.
¶83 For the reasons set forth, we conclude that the truck
driver negligence instruction did not misstate the law.
¶84 A circuit court can err in instructing the jury not
only by misstating the law but also by stating the law in a
manner likely to mislead the jury. Accordingly, we now turn to
the possibility (discussed by the court of appeals) that the
jury misinterpreted the truck driver negligence instruction.
C
43
See Restatement (Second) of Torts § 299A, Comment b, at
73 (1965):
This Section . . . applies to any person who
undertakes to render services to another in the
practice of a profession, such as that of physician or
surgeon, dentist, pharmacist, oculist, attorney,
accountant, or engineer. It applies also to any
person who undertakes to render services to others in
the practice of a skilled trade, such as that of
airplane pilot, precision machinist, electrician,
carpenter, blacksmith, or plumber.
27
No. 2013AP1750
¶85 The defendant's basic contention is that even if the
truck driver negligence instruction did not technically misstate
the law, it likely misled the jury and was therefore prejudicial
error.
¶86 The defendant argues that the truck driver negligence
instruction "had the practical effect of telling the jury that
[the defendant] had a higher standard of care because he held a
[commercial driver's license]."44 The defendant points out that
within the same negligence instruction, the circuit court set
forth the standard of ordinary care applicable to the plaintiff.
The implication, says the defendant, was that the jury should
apply a heightened standard of care to the defendant.
¶87 We disagree with the defendant. The truck driver
negligence instruction was not a stand-alone instruction. It
was part of lengthy set of negligence instructions given by the
circuit court. We do not evaluate the truck driver negligence
instruction in isolation. We review the jury instructions as a
whole to determine whether they fully and fairly convey the
applicable rules of law to the jury.45
44
One commentator has acknowledged that it is difficult to
instruct a jury in a way that maintains the distinction between
considering an actor's special knowledge and skill as a relevant
circumstance and holding the actor to a heightened standard of
care. Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 12, Reporter's Note to cmt. a., at 145 (2010).
Nevertheless, a jury can take an actor's special knowledge or
skill into account without transforming the standard of care
being applied.
45
Weborg, 341 Wis. 2d 668, ¶74 ("Jury instructions are
evaluated in their entirety, not in isolation.").
28
No. 2013AP1750
¶88 Relevant here are several paragraphs of the negligence
instructions in which the circuit court (1) introduced the
special verdict questions pertaining to negligence; (2)
introduced the concepts of negligence and of ordinary care; (3)
provided specific instruction regarding the standard of care
applicable to the defendant as a semi-trailer truck driver; and
(4) elaborated upon the standard of ordinary care, with
particular attention to highway driving.46
¶89 These paragraphs of the negligence instructions
provided as follows:
Question number 1 and question number 3 of the verdict
asked whether or not [the defendant] and [the
plaintiff] were or were not negligent. These
questions read as follows, question number 1, was [the
defendant] negligent in the operation of his vehicle
immediately before or during the accident, yes or no.
Question number 3, was [the plaintiff] negligent in
the operation of his automobile immediately before or
during the accident, yes or no. I will now instruct
you of the definition of negligence and the various
rules and safety statutes you must apply to determine
whether or not either [the defendant] or [the
plaintiff] or both were negligent in this case.
A person is negligent when they fail to exercise
ordinary care. Ordinary care is the care which a
reasonable person would use in similar circumstances.
A person not using ordinary care is negligent, if the
person without intending to do harm does something or
fails to do something that a reasonable person would
recognize as creating an unreasonable risk of injury
46
These are the first four paragraphs of a ten-paragraph
set of negligence instructions. The following five paragraphs
cover particular facets of the standard of ordinary care as it
applies to individuals driving on a highway. The tenth and
final paragraph explains the concept of comparative negligence.
29
No. 2013AP1750
or damage to a person or property. At the time of the
accident, [the defendant] was a professional truck
driver operating a semi tractor-trailer pursuant to a
commercial driver's license issued by the State of
Wisconsin. As the operator of a semi tractor-trailer,
it was [the defendant's] duty to use the degree of
care, skill, and judgment which a reasonable semi
truck driver would exercise in the same or similar
circumstances having due regard for the state of
learning, education, experience, and knowledge
possessed by semi truck drivers holding commercial
driver's licenses. A semi truck driver who fails to
conform to the standard is negligent. The burden is
on the plaintiff to prove that [the defendant] was
negligent.
Every person in all situations has a duty to exercise
ordinary care for his or her own safety. This does
not mean that a person is required at all hazards to
avoid injury. A person must, however, exercise
ordinary care to take precautions to avoid injury to
himself or herself. A person must exercise ordinary
care to employ his sense of sight and hearing so as to
become aware of the existence of danger to him or her.
A failure to do so is negligence. It is the duty of
every person to exercise ordinary care, and to
recognize and appreciate all dangers that are open and
obvious to him, or which [would] have been recognized
and appreciated by a reasonable, prudent person under
the same or similar circumstances. That the warning
of the existence of danger was not seen or was not
heard does not free one from negligence. In addition,
one who looks and fails to see or listens and fails to
hear a warning of danger, which under like or similar
circumstances would have been seen or would have been
heard by a reasonable, prudent person is as guilty of
negligence as one who did not look or listen at all.
However, a person is not bound to see every hazard or
danger in his or her pathway even though they should
be plainly observable or to remember the existence of
every condition of which a person has had knowledge.
A person is only required to act as a reasonable,
prudent person would act under the same or similar
circumstances.
To be free of negligence, a person must exercise
ordinary care in choosing his or her course of conduct
30
No. 2013AP1750
in the pursuit of that choice. A person is not guilty
of negligence in making the choice of conduct if the
person has no knowledge that one course of conduct
carries a greater hazard than another provided that
such lack of knowledge is not the result of a person's
failure to exercise ordinary care. Every user of the
highway has the right to assume that every other user
of the highway will obey the rules of the road.
However, a person cannot continue to make that
assumption if the person becomes aware or in the
exercise of ordinary care, ought to be aware that
another user of the highway by his or her conduct is
creating a dangerous situation. Under such
circumstances, a person using the highway must use
ordinary care to avoid the danger. A driver must use
ordinary care to keep a careful look out ahead and
about him or her for the presence of vehicles,
movement, objects or pedestrians, or may be within
approaching the driver's course of travel. In
addition, the driver has to use ordinary care to look
out to the condition of the highway ahead, for traffic
signs, markers, obstructions to vision, and other
things that might warn of possible danger. The
failure to use ordinary care to keep a careful look
out is negligence.
¶90 The defendant's contention that the truck driver
negligence instruction likely misled the jury is untenable in
light of the numerous statements, made throughout the portion of
the negligence instructions set forth above, that the standard
of ordinary care applies to all drivers.
¶91 Particularly relevant here are the portions of the
jury instructions immediately preceding and immediately
following the truck driver negligence instruction.
¶92 Right before giving the truck driver negligence
instruction, the circuit court instructed the jury that
negligence is the failure to exercise ordinary care. The
circuit court did not limit this statement to the plaintiff in
31
No. 2013AP1750
any way; it stated the standard of ordinary care in general
terms, as applied to everyone.
¶93 The circuit court's exact words, taken from the
pattern jury instruction on negligence, were as follows:
A person is negligent when they fail to exercise
ordinary care. Ordinary care is the care which a
reasonable person would use in similar circumstances.
A person not using ordinary care is negligent, if the
person without intending to do harm does something or
fails to do something that a reasonable person would
recognize as creating an unreasonable risk of injury
or damage to a person or property.
¶94 Right after giving the truck driver negligence
instruction, the circuit court reiterated the standard of
ordinary care and then elaborated upon the concept of negligence
in the context of highway driving.
¶95 The circuit court stated as follows:
It is the duty of every person to exercise ordinary
care, and to recognize and appreciate all dangers that
are open and obvious to him, or which [would] have
been recognized and appreciated by a reasonable,
prudent person under the same or similar
circumstances. . . .
. . . .
Every user of the highway has the right to assume that
every other user of the highway will obey the rules of
the road. However, a person cannot continue to make
that assumption if the person becomes aware or in the
exercise of ordinary care, ought to be aware that
another user of the highway by his or her conduct is
creating a dangerous situation. Under such
circumstances, a person using the highway must use
ordinary care to avoid the danger.
(Emphasis added.)
32
No. 2013AP1750
¶96 Read as a whole, the message conveyed by the jury
instructions was clear: The standard of ordinary care applies
to both the plaintiff and the defendant. Ordinary care is the
care a reasonable person would exercise under the circumstances.
In the instant case, the circumstances relevant to a
determination of whether the defendant acted reasonably include
the fact that at the time of the collision, the defendant was
engaged in a profession or trade (semi-trailer truck driving)
and possessed the special knowledge and skill required of semi-
trailer truck drivers.
¶97 Could the truck driver negligence instruction have
been more clearly worded? Perhaps. But perfection is not what
the law requires. An appellate court need decide only whether
"the overall meaning communicated by the instruction . . . was a
correct statement of the law[] . . . ."47 In the instant case,
the overall meaning communicated by the totality of the
negligence instructions was a correct statement of the law and
was not misleading.
¶98 In sum, we conclude that the circuit court did not err
in giving the truck driver negligence instruction. The truck
driver negligence instruction did not misstate the law and was
not misleading. The defendant's arguments to the contrary are
47
White v. Leeder, 149 Wis. 2d 948, 954-55, 440 N.W.2d 557
(1989). See also Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112,
¶50, 246 Wis. 2d 132, 629 N.W.2d 301.
33
No. 2013AP1750
not persuasive, and the defendant is not entitled to a new
trial.
By the Court.—The decision of the court of appeals is
affirmed.
34
No. 2013AP1750.pdr
¶99 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The
central issue presented is whether the circuit court erred by
giving the jury a special skills instruction because Dale L.
Cavallino held a commercial license to operate the semi-truck at
the time of the accident.1 I conclude that the circuit court's
special skills instruction was erroneous because it incorrectly
stated the law. However, I also conclude that the error was
harmless. Accordingly, I would affirm the court of appeals, and
although I do not join the majority opinion, I respectfully
concur.
I. BACKGROUND
¶100 The majority opinion fully sets out the facts that
underlie the dispute before us. Therefore, I will not repeat
them.
II. DISCUSSION
A. Standard of Review
¶101 Challenges to jury instructions present questions of
law for our independent review. State v. Beamon, 2013 WI 47,
¶18, 347 Wis. 2d 559, 830 N.W.2d 681. Whether an erroneously
given instruction is harmless error also presents a question of
law that we review independently. State v. Nelson, 2014 WI 70,
¶18, 355 Wis. 2d 722, 849 N.W.2d 317.
1
Majority op., ¶3.
1
No. 2013AP1750.pdr
B. Jury Instructions
¶102 The defendant, Cavallino,2 argues that the special
skills instruction was erroneous because it directed the jury to
consider Cavallino's superior knowledge and skill as a licensed
semi-truck driver. According to Cavallino, the circuit court
erred because the court gave an instruction regarding superior
knowledge and skill similar to that employed in professional
negligence cases, rather than the standard negligence
instruction that is customarily given in vehicular negligence
cases. Cavallino argues that the circuit court's instruction
imposed a heightened standard of care on him, and that doing so
was prejudicial error entitling him to a new trial.
¶103 The plaintiff, Ronald J. Dakter,3 contends that the
instruction directed the jury to take superior knowledge and
skill of professional semi-truck drivers into account so that
the jury could determine whether Cavallino met the standard of
ordinary care under the circumstances.
1. General principles for instructions
¶104 "The purpose of a jury instruction is to fully and
fairly inform the jury of a rule or principle of law applicable
to a particular case." Nommensen v. Am. Cont'l Ins. Co., 2001
WI 112, ¶36, 246 Wis. 2d 132, 629 N.W.2d 301. Jury instructions
2
Cavallino's employer, Hillsboro Transportation Company,
LLC, and Michigan Millers Mutual Insurance Company, Hillsboro's
insurance provider, are also defendants. Their positions are
consistent with Cavallino's.
3
Kathleen M. Dakter, Ronald's wife, is also a plaintiff.
2
No. 2013AP1750.pdr
"explain what the law means to persons who usually do not
possess law degrees." Id. (internal quotation marks and
citation omitted).
¶105 "A circuit court has broad discretion when instructing
a jury." Id., ¶50 (citing White v. Leeder, 149 Wis. 2d 948,
954, 440 N.W.2d 557 (1989)). A circuit court appropriately
exercises its discretion when the instruction correctly states
the law and comports with the facts of the case. Weborg v.
Jenny, 2012 WI 67, ¶42, 341 Wis. 2d 668, 816 N.W.2d 191; White,
149 Wis. 2d at 954-55. However, even if the circuit court
erroneously exercises its discretion, an "erroneous jury
instruction warrants reversal and a new trial only if the error
was prejudicial." Kochanski v. Speedway SuperAmerica, LLC, 2014
WI 72, ¶11, 356 Wis. 2d 1, 850 N.W.2d 160 (quoting Fischer v.
Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992)). "An error
is prejudicial when it probably misled the jury." Id. In other
words, a jury instruction error "is not prejudicial if it
appears that the result would not be different had the error not
occurred." Id. (quoting Lutz v. Shelby Mut. Ins. Co., 70
Wis. 2d 743, 751, 235 N.W.2d 426 (1975)).
2. Special skills instruction
¶106 There are professions and trades for which special
skills are necessary to performance of the profession or trade.
See Racine Cnty. v. Oracular Milwaukee, Inc., 2009 WI App 58,
¶28, 317 Wis. 2d 790, 767 N.W.2d 280 (parsing whether computer
software installers were subject to a higher professional
standard of care based on special skills). When those special
3
No. 2013AP1750.pdr
skills are required but not competently performed, the
"[p]rofessionals may be sued for malpractice because [of] the
higher standards for care imposed on them by their profession."
Id. (internal quotation marks and citation omitted). Further,
when a higher standard of care is imposed on members of a
profession or trade, expert witness testimony generally is
required to prove that those standards were not met. Id., ¶34.
3. Instructions given
¶107 The circuit court gave a special skills instruction
based on Cavallino being licensed as a semi-truck driver. That
instruction stated in pertinent part:4
At the time of the accident, the defendant, Dale
Cavallino, was a professional truck driver, operating
a semi tractor trailer pursuant to a Commercial
Driver's License issued by the State of Wisconsin. As
the operator of a semi tractor-trailer, it was Dale
Cavallino's duty to use the degree of care, skill and
judgment which reasonable semi truck drivers would
exercise in the same or similar circumstances, having
due regard for the state of learning, education,
experience, and knowledge possessed by semi truck
drivers holding Commercial Driver's Licenses. A semi
truck driver who fails to conform to this standard is
negligent.
¶108 Immediately prior to the semi-truck driver
instruction, the jury received instruction on the standard of
ordinary care:5
A person is negligent when he fails to exercise
ordinary care. Ordinary care is the care which a
reasonable person would use in similar circumstances.
4
Labelled "New #3 Negligence: Semi Truck Driver."
5
Labelled "1005 Negligence: Defined."
4
No. 2013AP1750.pdr
A person is not using ordinary care and is negligent,
if the person, without intending to do harm, does
something or fails to do something that a reasonable
person would recognize as creating an unreasonable
risk of injury or damage to a person or property.
¶109 In regard to these two instructions, the court of
appeals melded them together and explained how it concluded that
Cavallino's superior knowledge and skill fit into the standard
of ordinary care:
Putting together the general standard of care
with its application to the circumstances in which an
actor possesses pertinent superior knowledge or
skills: (1) all have a duty to use ordinary care to
avoid acts that a reasonable person would recognize
create unreasonable risks of injury or damage to
others or property, and (2) a "reasonable person will
act in the light of (a) knowledge shared by the
community generally and also (b) information,
knowledge and skill that he himself has that is not
generally known and that reasonable people would not
ordinarily have." Dan B. Dobbs et al., The Law of
Torts § 132 (2d ed. 2014).
Dakter v. Cavallino, 2014 WI App 112, ¶40, 358 Wis. 2d 434, 856
N.W.2d 523.
¶110 The parties agree that it would have been improper for
the circuit court to have instructed the jury that Cavallino is
held to a higher standard of care than other drivers on the
highway because he was a professional semi-truck driver.6 Dakter
acknowledges that the standard of care for all drivers is
ordinary care.
¶111 However, the wording of the special skills instruction
for semi-truck drivers implies that there is a semi-truck driver
6
Respondent's Brief at 22: "We agree; the standard is
always 'ordinary care.'"
5
No. 2013AP1750.pdr
standard of care and that Cavallino was obligated to conform his
conduct to that standard of care, which differs from ordinary
care. That implication permitted the jury to hold Cavallino to
a different standard of care than the standard of care that the
jury applied to Dakter.
¶112 Specifically, the instruction directed that it was
Cavallino's "duty to use the degree of care, skill and judgment
which reasonable semi truck drivers would exercise in the same
or similar circumstances." This is an incorrect statement of
the law. It establishes a semi-truck driver standard of care
that required Cavallino to use skills in addition to those
required of Dakter while both were using a public highway.
Accordingly, the circuit court erred by giving the jury the
special skills instruction that was focused on the skills
required of a commercial driver of a semi-truck.
¶113 I also conclude that the circuit court erroneously
exercised its discretion in giving the special skills
instruction because the application of the superior knowledge
and skills doctrine is limited to persons taking actions in a
venue where special skills are required by that venue. For
example, when one takes action in a venue where special skills
are required, e.g., physicians, lawyers, pharmacists and
dentists, the circumstances that underlie the standard of
ordinary care take into account the similarity of experience
among those who work in the exclusive venue where the
particularized superior knowledge and skills are required.
Stated otherwise, in cases where special skills are relevant,
6
No. 2013AP1750.pdr
the duty is defined by standards applicable to the particular
profession of the alleged tortfeasor. Zastrow v. Journal
Commc'ns, Inc., 2005 WI App 178, ¶25, 286 Wis. 2d 416, 703
N.W.2d 673.
¶114 In contrast to those who work in exclusive venues that
require special skills in order to work in that venue,
professional and lay vehicle operators employ the same venue,
i.e., they share the same roadways. In addition, a driver with
a license permitting him or her to drive a semi-truck7 could also
drive a large truck, a pickup truck or a car. A driver with a
commercial license could be a professional semi-truck driver, or
he or she may drive a semi-truck only rarely. Alternatively, a
driver holding a class D (regular) driver's license8 may operate
any number of large and cumbersome vehicles, including large
moving trucks or trucks with large trailers. Because all of
these vehicle operators act in the same venue, i.e., the shared
roadway, they are subject to the same ordinary care. Ordinary
care is that care exercised by a reasonable person under the
circumstances. See Hoida, Inc. v. M&I Midstate Bank, 2006 WI
69, ¶¶30-32, 291 Wis. 2d 283, 717 N.W.2d 17. The circumstances
of ordinary care are not modified according to the type of
vehicle operator, but rather, uniformly reflect the nature of
the shared venue, a public roadway. See State Dep't of Transp.
v. Robbins, 246 P.3d 864, 867 (Wyo. 2011) (citing Cervelli v.
7
Wis. Stat. § 343.03(3)(b).
8
Wis. Stat. § 343.03(3)(a).
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No. 2013AP1750.pdr
Graves, 661 P.2d 1032, 1038-39 (Wyo. 1983) (affirming the trial
court's refusal to give a jury instruction that set an
individualized standard of care for a semi-truck driver and
reasoning that to do so would be to convert an ordinary
negligence case into a semi-truck driver's malpractice action)).
¶115 Even though I conclude that the circuit court erred in
giving the semi-truck driver negligence instruction, the
instruction was not prejudicial and therefore was harmless. As
the court of appeals noted, the erroneous instructions may have
subjected Cavallino to a higher standard of care than that to
which he would have been held if he lacked superior knowledge or
skills. Dakter, 358 Wis. 2d 434, ¶47. However, I also agree
that jurors likely focused on the evidence presented at trial.
Id. Therefore, if jurors were presented with accurate
statements of the standard of ordinary care, they would have
been as likely to reach the same conclusion.
¶116 Furthermore, "[j]ury instructions are evaluated in
their entirety, not in isolation." Weborg, 341 Wis. 2d 668,
¶74. The erroneous semi-truck driver instruction was surrounded
by correct instructions that repeatedly reminded the jury of the
standard of ordinary care.
¶117 In addition, the jury's apportionment of negligence is
substantially supported by the facts and does not indicate
prejudice. Trial testimony supports the jury's verdict. For
example, under hypothetical facts matching Dakter's testimony
regarding the accident that gives rise to this case, Cavallino's
own expert stated that if the hypothetical facts were true, the
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No. 2013AP1750.pdr
driving was "reckless" and Cavallino's own employer stated that
such driving would be "unsafe." These facts in combination
with the multiple instructions on ordinary care cause me to
conclude that there is no reasonable probability that the
circuit court's error in giving the semi-truck driver
instruction contributed to the outcome of the trial.
Accordingly, the jury instruction error was not prejudicial
because the jury's verdict likely would have been the same had
the error in instructions not occurred. See Kochanski, 356
Wis. 2d 1, ¶11.
III. CONCLUSION
¶118 I conclude that the circuit court's special skills
instruction was erroneous because it incorrectly stated the law.
However, I also conclude that the error was harmless.
Accordingly, I would affirm the court of appeals, and although I
do not join the majority opinion, I respectfully concur.
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No. 2013AP1750.akz
¶119 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion's conclusion that the semi-truck driver
jury instruction at issue was not erroneous under the facts of
this case. I also join Chief Justice Roggensack's conclusion
that, if this jury instruction were erroneous, the error was
harmless. I write separately to clarify two points.
¶120 First, I write to clarify that the semi-truck driver
jury instruction at issue was proper because the defendant was
driving a semi-truck at the time of the accident. See majority
op., ¶96 ("In the instant case, the circumstances relevant to a
determination of whether the defendant acted reasonably include
the fact that at the time of the collision, the defendant was
engaged in a profession or trade (semi-trailer truck driving)
and possessed the special knowledge and skill required of semi-
trailer truck drivers." (emphasis added)). Had the defendant
been driving a passenger automobile rather than a semi-truck at
the time of the accident, the semi-truck driver jury instruction
would have been erroneous, notwithstanding the fact that the
defendant is a professional semi-truck driver.
¶121 Second, I write to clarify that certain treatises that
the majority opinion cites are overly broad and do not dictate
the law in Wisconsin. See, e.g., majority op., ¶48 ("[I]f a
person in fact has knowledge, skill, or even intelligence
superior to that of the ordinary person, the law will demand of
that person conduct consistent with it." (quoting W. Page Keeton
et al., Prosser and Keaton on Torts § 32, at 185 (5th ed.
2000))); id. ("In addition to the knowledge that may be imputed
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No. 2013AP1750.akz
to a reasonable person, a person's actual knowledge and skills
may be taken into account when the level of the person's
knowledge or skills exceeds the average." (quoting 1 J.D. Lee &
Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 3:21
(2d ed. 1990))); id., ¶43 n.16 ("The standard of the reasonable
man requires only a minimum of attention, perception, memory,
knowledge, intelligence, and judgment in order to recognize the
existence of the risk. If the actor has in fact more than the
minimum of these qualities he is required to exercise the
superior qualities that he has in a manner reasonable under the
circumstances." (quoting Restatement (Second) of Torts § 289
cmt. m. (1965))). These passages should not be improperly
construed as an expansion of Wisconsin law. See majority op.,
¶49 ("These texts neither bind this court nor declare the law of
Wisconsin."). Instead, I write to clarify that the majority
opinion cites these treatises for the sole and limited purpose
that, under the facts of this case, the semi-truck driver jury
instruction was proper because the defendant was driving a semi-
truck at the time of the accident. The majority opinion
expressly recognizes that these broad treatise passages do not
"declare the law of Wisconsin." Majority op., ¶49.
¶122 For the foregoing reasons, I respectfully concur.
¶123 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this concurrence.
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No. 2013AP1750.akz
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