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  • WisBar News
    August 18, 2015

    Defending Moosie: Appeals Court Orders New Trial in Dog Attack Case Based on Jury Instruction

    Joe Forward

    Aug. 18, 2015 – A state appeals court has reversed a judgment in favor of a woman injured while trying to protect her chocolate labrador from a pit bull, concluding that the trial court erred when it gave a jury instruction on the “emergency doctrine,” which can relieve a person from contributory negligence liability if responding to an emergency.

    The trial court judge believed Joan Kelly, who thought her dog would be mauled to death if she did not help, was entitled to the jury instruction on the emergency doctrine.

    Ultimately, the jury ruled in her favor, finding that she was not negligent in any way. The defense had argued that Kelly’s negligent decision to intervene caused her injuries.

    In Kelly v. Berg, 2014AP1346 (Aug. 18, 2015), a three-judge panel for the District III Court of Appeals reversed the judgment, concluding that “the emergency doctrine does not apply under the facts of this case because the time in which action was required was not short enough to preclude a deliberate and intelligent choice of action.”

    The Dog Attack

    Kelly intervened when her dog “Moosie” was attacked by the neighbor’s dog “Princess,” which had gained entrance into Kelly’s fenced backyard. Kelly screamed for help from Amanda Berg and Adam Finkler, who owned Princess and lived next door.

    Neither Berg nor Finkler responded, and Kelly eventually pulled on Princess’s jaws, which were clutched to Moosie’s throat. Moosie ran off but Princess followed, and clamped onto Moosie’s shoulder. Kelly pried Princess’s jaws open a second time, and then a third time when Princess continued its pursuit of Moosie.​

    Princess then bit Kelly’s right arm. As Princess pulled her to the ground, Kelly struck her knee on concrete. Kelly fought back and Princess eventually abandoned the attack. Kelly received stitches for the bite wound and was treated for a knee injury. Before trial, a psychologist also diagnosed Kelly with Post-traumatic Stress Disorder (PTSD).

    The Lawsuit

    Kelly sued Berg and Finkler (and Berg’s insurer) under Wisconsin’s dog bite statute, Wis. Stat. section 174.02, which imposes strict liability on dog owners for “damages caused by the dog injuring or causing injury to a person, domestic animal or property.” However, juries may still determine whether a victim was contributorily negligent.

    Following trial, the court announced that it was giving a modified version of the standard jury instruction on the emergency doctrine, which would relieve Kelly from any contributory negligence if the jury found that she was responding to an emergency.​

    Defense counsel objected to the instruction, arguing that it did not apply to the circumstances of the case. Defense counsel also objected when the court proposed a special verdict form that would separate Kelly’s pain and suffering damages into ones related to PTSD and those that were unrelated to PTSD.

    The jury found that Kelly was not negligent, and awarded about $5,300 for past medical expenses, $4,000 for past wage loss, $150,000 for past pain, suffering, and disability not related to PTSD, and $5,300 for past pain, suffering, and disability related to PTSD.

    The jury awarded the PTSD-related damages to pay for 16 therapy sessions at $330 per session, as was recommended by the psychologist that diagnosed Kelly.

    On Appeal

    Berg argued that the circuit court was wrong to give the jury instruction on the emergency doctrine, because it does not apply to prevent damage to property. The appeals court did not resolve that question, deciding the case on narrower grounds.

    “[A]ssuming without deciding that the emergency doctrine can apply when only damage to property is at stake, we nevertheless conclude the doctrine does not apply under the particular facts of this case,” wrote Judge Lisa Stark for the three-judge panel.

    For the emergency doctrine to apply, the panel noted, a person must not have sufficient time to make a deliberate and intelligent choice of action with regard to danger. That is, the person’s reaction to danger must be “practically instinctive or intuitive.”

    “[I]n this case, Kelly indisputably had time to contemplate her course of conduct before acting,” wrote Judge Stark. “On this record, we conclude, as a matter of law, that Kelly had time to make a deliberate and intelligent choice whether to intervene.”

    The appeals panel rejected Kelly’s claim that the “rescue rule” supported the jury instruction. The rescue rule relieves a rescuer from negligence liability if the rescue is “not unreasonable or unreasonably carried out.”

    “Unlike the emergency doctrine, the rescue rule does not require that the time element be so short as to preclude a deliberate or intelligent choice of action,” Stark wrote.

    “Although the parties address whether an instruction on the rescue rule would have been appropriate, that issue is not before us, and we do not address it.”

    The panel concluded that the erroneous jury instruction likely prejudiced the case. “[T]he court specifically instructed the jury that Kelly would be relieved of any contributory negligence if the emergency doctrine applied,” wrote Judge Stark. “Under these circumstances, the result of the trial likely would have been different absent the erroneous jury instruction.” The panel remanded the case for a new trial on liability.


    The panel also remanded for a new trial on damages, concluding “the jury was likely confused by the damages question on the special verdict,” which separated damages into subcategories, one related to PTSD and another not related to PTSD.

    “[W]e conclude it was likely more confusing to the jury to separate Kelly’s past pain, suffering, and disability damages into sub-categories than it would have been to present a single question on the topic,” Judge Stark wrote for the panel.

    “It is clear from the court’s oral decision denying Berg’s postverdict motion that the court itself conflated the PTSD and non-PTSD damages.”


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