 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
e than six feet deep, and 45% answered yes. Based on the research the Federation did, it decided there was no need to change Rule 2-7-2, and the WIAA therefore made no change in the rule.
. Mohr's expert opined that, prior to Mohr's injury , there were many well-publicized reports of catastrophic injuries to swimmers performing competitive racing starts in the shallow end of swimming pools, and these reports provided information to the WIAA, as well as to the Federation, that 3.5 feet of water was not a safe depth for competitive racing starts regardless of the platform height.
. We conclude that, if a jury chose to believe this evidence, it could reasonably decide that the WIAA did not exercise reasonable care in adopting Rule 2-7-2 without making any inquiry into whether a competitive racing start in 3.5 feet of water was safe. There is, of course, evidence that would support the opposite determination, but we cannot conclude as a matter of law that the WIAA was not negligent. The cases the WIAA relies on for its argument to the contrary are so factually different that they offer no support for its argument. See, e.g., McNeese v. Pier, 174 Wis. 2d 624, 631, 497 N.W.2d 124 (1993) (no evidence to support jury determination that family acquaintance breached her duty of care by waiting in her car parked across the street from the child's home to take the child to school; child injured while crossing street to get to the car).
. We next consider whether the WIAA is entitled to summary judgment on public policy grounds. The public policy considerations that a court applies to decide if it should preclude liability are:
(1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; (6) allowing recovery would enter a field that has no sensible or just stopping point.
Alvarado, 262 Wis. 2d 74, .
. As the court in Alvarado has recently reaffirmed, in most cases the better practice is for the court to submit the case to the jury before determining whether public policy considerations preclude liability. Id., . Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. Id. The court in Alvarado explained that a jury's determination of negligence includes an examination of whether the defendant's exercise of care foreseeably created an unreasonable risk of harm to others, and public policy factors can also implicate the concept of forseeability. Id., . Thus, evidence regarding forseeability may play a dual role. Id. Besides having the aid of the jury's opinion when assessing liability, a judge will be aided by the facts brought to light during the jury trial. Id.
. We are satisfied this is not one of those simple cases where a public policy determination can be made before trial. Whether the WIAA exercised reasonable care in adopting Rule 2-7-2 without making its own inquiry depends in part on what information was available to it on safe water depths for competitive racing starts and how readily available that information was to the WIAA, given the size of the WIAA staff and its resources. These are factual disputes that cannot be resolved on summary judgment, and their resolution is relevant to the application of the first four policy considerations, which appear to be the
Page 1 2 3 4 5 6 7 8 9 10 11 12 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|