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BENCH BLOG: Dog bite case leads to unusual turn to emergency doctrine

By: Jean DiMotto//September 4, 2015

BENCH BLOG: Dog bite case leads to unusual turn to emergency doctrine

By: Jean DiMotto//September 4, 2015

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at [email protected].

In a case that saw a woman injured while trying to pull her dog from the jaws of a pit bull, a judge’s unrequested jury instruction concerning the emergency doctrine and unrequested restructuring of the verdict form’s damages section led to a remand for a new trial.

The case, Kelly v. Berg, originated in northeastern Wisconsin. Joan Kelly was in her basement when she heard her Labrador yelping. Going outside to learn what was the matter, she saw that a neighbor’s pit bull had latched on to the Labrador’s throat. She called for the neighbors to help but received no response.

Her dog soon stopped yelping yet kept swinging its attacker back and forth in an attempt at getting it to let go. The pit bull, though, did not relent. Kelly, thinking her Lab would be killed “if she didn’t do something right now,” ran to the dogs and pulled the pit bull’s jaws open.

The Lab ran toward the house but did not make it very far. The pit bull followed and grabbed on to its shoulder. Kelly again pulled the pit bull’s jaws apart but could not prevent it from attacking the lab’s other shoulder.

Kelly found herself prying the pit bull’s jaws open again. This time, though, the Lab was able to retreat to the house.

Switching targets, the pit bull grabbed Kelly’s arm, pulling her knee to the concrete. The attack resulted not only in knee pain but also an arm wound that required stitches and later became infected.

Additionally, Kelly was diagnosed with post-traumatic-stress disorder. A psychologist recommended that she undergo between twelve and sixteen desensitization sessions, each of which cost $330. Significantly for later developments in the case, Kelly had completed none of the sessions by the time of the trial.

Trial court proceedings

Kelly sued under the dog-bite statute, sec. 174.02(1)(a). Although this is a strict-liability statute, there can nonetheless be contributory negligence. Evidence of this was presented at trial, making contributory negligence the single liability issue before the jury.

In an unexpected twist, Marinette Circuit Judge James Morrison decided, sua sponte, and over a defense objection, to instruct the jury on how the emergency doctrine relates to contributory negligence. In general, that doctrine prevents someone from being held liable for any action or inaction that comes in response to an emergency, as long as the emergency was not brought about by the same person.

Morrison also intervened sua sponte in the matter of the verdict’s damages. Despite a defense objection, Morrison decided to split the pain, suffering and disability damages into two subcategories – namely, those that were “not related to PTSD” and those “related to PTSD (not to exceed 16 sessions).”

The most obvious trouble was that, because Kelly had yet to undergo therapeutic sessions, the “related to PTSD (not to exceed 16 sessions)” could refer only to future damages. The restructuring  conflated future damages of that sort with past damages stemming from the pain, suffering and disability inflicted on her by PTSD.

The jury, making it clear that it was interpreting the subcategory “related to PTSD (not to exceed 16 sessions)” as referring to the cost of the future sessions, wrote in the amount of $5,280 and then, next to that answer, jotted, “330 x 16 = 5280.”

In addition, the jury found that Kelly was not contributorily negligent.

The defense appealed both on the grounds of liability — citing the influence of the instruction in the emergency doctrine — and damages.

Emergency instruction on appeal

District 3 Court of Appeals Judge Lisa Stark wrote for the court. She explained that the emergency doctrine has at least two elements. First, a person cannot be shielded from liability if he or she creates an emergency through negligence. Second, the length of time in which action is required “must be short enough to preclude deliberate and intelligent choice of action.”

“In other words, the person’s reaction to the danger must be ‘practically instinctive or intuitive.’”

Here, the court noted that Kelly first heard the yelping in her basement. She then ran outside to see that a pit bull had latched onto her Labrador’s throat. She called to her neighbors for help. After they did not respond, and only after seeing that the pit bull’s attack was getting worse and that her dog was no longer yelping, she intervened.

Taking these facts into account, the court concluded that Kelly had had time to make a deliberate and intelligent choice. Accordingly, the court ruled that the emergency doctrine had not been applicable and that the judge had erred when he decided to give instructions concerning that doctrine.

The error, largely because there was evidence presented during the trial that Kelly had been contributorily negligent, was deemed prejudicial and a new trial was required.

Damages issue

In his instruction on the subcategory of pain and suffering damages “related to PTSD,” Morrison stated, “You are instructed that as an element of past pain, suffering – pain and suffering, excuse me, you may only find pain and suffering for (PTSD) for a period of time up to the 16 sessions following (the psychologist’s) recommendation of the therapy.”

The appeals court assumed Morrison intended to place a temporal limit on these damages. But there was no evidence about how long it would take Kelly to complete the recommended number of sessions.

Moreover, the jury did not receive instructions about future damages. Its calculation of the cost of 16 sessions shows it was confused about the proper measure of damages for past pain, suffering and disability related to PTSD.


In the past, the emergency doctrine has been applied mostly to cases involving automobile accidents. The use of it in a dog bite case is unprecedented.

The court of appeals’ analysis in this scenario seems harsh. Kelly’s conduct once she was outside her house seemed instinctive and came in response to an emergency: the sudden stop of her dog’s yelping.

Thus, the harshness is a result of the way the time span was calculated. The court of appeals started the clock at the point in time when Kelly was in her basement and heard yelping, even though she didn’t then know the cause of her dog’s distress.

The analysis very likely would have been different had the emergency been deemed to have started when her dog ceased yelping even though the pit bull remained latched onto its neck.

This case should also teach trial judges the danger of sua sponte interventions in jury trials. It is at best a boggy slog when a judge becomes overly engaged in a jury trial and makes interventions that the parties have not requested and, in fact, object to.


Should Justice Protasiewicz recuse herself on gerrymandering cases that go before the Wisconsin Supreme Court?

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