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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
able person would use in similar circumstances. 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.
Gritzner, 235 Wis. 2d 781, (quoting Wis JI-Civil 1005).
[Thus] the particular conduct of a defendant is not examined in terms of whether or not there is a duty to do a specific act, but rather whether the conduct satisfied the duty placed upon individuals to exercise that degree of care as would be exercised by a reasonable person under the circumstances.
Id., .
. The WIAA's argument that it had no duty as a matter of law overlooks the distinction between the issue of duty and the issue of liability. Although courts have sometimes used the language that a defendant had "no duty" to the injured person, they are in reality making a decision that there should be no liability as a matter of public policy. Id., n.4. More recently, the court in Alvarado clarified the distinction:
The question of duty is nothing more than an ingredient in the determination of negligence. Once it has been determined that a negligent act caused the harm, the question of duty is irrelevant and a finding of non-liability can be made only in terms of public policy.
The "duty" ingredient of negligence should not be confused with public policy limitations on liability. The doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability.
262 Wis. 2d 74, -16 (citations omitted).
. Thus, the crucial question with regard to the WIAA's duty is not, as the WIAA frames it, whether it had a duty to make its own assessment of the adequacy of Rule 2-7-2 before adopting it, but, rather, whether its conduct in not doing so was consistent with its duty to exercise reasonable care. See Gritzner, 235 Wis. 2d 781, . With this formulation of duty in mind, we examine the evidence to determine whether there are disputed issues of fact.
. The evidence and reasonable inferences from the evidence, viewed most favorably to Mohr, include the following. The WIAA executive director was aware that schools rely on the WIAA to have safe playing rules. The WIAA was not obligated to adopt the Federation's rules, and had in the past adopted a more restrictive rule with regard to the minimum depths for spring diving boards. The Federation rule provided for a nine-foot minimum, but, because of a change in the way diving boards were manufactured, divers were able to go deeper than previously, and there was one or more instances of divers hitting the bottom of the pool. The WIAA asked the Federation Swimming and Diving Rules Committee to change the rule to require a ten-foot minimum, but that committee declined to change the Federation rule, so the WIAA adopted its own rule requiring a ten-foot minimum depth.
. With respect to Rule 2-7-2, the WIAA personnel knew that the Federation had changed the rule in 1991 because of injuries under the prior rule. The executive director of the WIAA knew that in 1994 the Federation considered a proposal to adopt a minimum depth of five feet, that two states had enacted legislation requiring five feet and another 4.5 feet, and that the Federation decided to conduct research on the topic. The WIAA did not make its own inquiries on the topic because the director decided to rely on the Federation's undertaking of the research. A Federation questionnaire asked the state associations whether it would recommend that schools move starting platforms to the deep end or to mor
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