Well, as summer vacation comes to a close, it’s time to set down my piña colada, fold up my hammock, and get back to work. Thank goodness the legal industry takes a hiatus during these warmer months so we can all enjoy days on end in the sun with friends and family.
Or not. But at least I’m not the only one trapped in an office on these gorgeous, fleeting days. The Wisconsin Court of Appeals has been busy at work, too. A recent decision focused on the importance of the temporal element when determining whether the emergency doctrine applies as a defense to a given fact situation. In Kelly v. Berg, 2014AP001346 (recommended for publication), the court of appeals remanded the case for a new trial after the jury was instructed on the emergency doctrine and returned a verdict in favor of the plaintiff who had suffered a dog bite.
While the defendants argued that the emergency doctrine should not apply to the actions of a person who is attempting to prevent damage to property (in this case, the plaintiff’s dog), the court did not reach this issue. Instead, the appellate court focused on the time in which action is required. For the doctrine to apply, “the person’s reaction to the danger must be “practically instinctive or intuitive.” The court compared two previous cases in which the time to react was two seconds (the doctrine applied) and seven seconds (the doctrine did not apply).
In this case, the appellate court did not refer to or rely upon any specific computation of time that elapsed before the plaintiff reacted. Nevertheless, the record demonstrated that the plaintiff had sufficient time to make a deliberate and intelligent choice whether to intervene in a fight between her dog and the defendants’ dog. The court also held that “when considered as a whole,” the instructions together did not convey the correct legal standard and therefore the erroneous instruction was prejudicial.
The facts are as follows:
Joan Kelly was drawn outside on the evening of June 16, 2011 when she heard her chocolate lab, Moosie, screeching and yelping. [Author’s note: awesome dog name.] Joan found Moosie under attack by her neighbor’s pitbull, Princess. Joan screamed for Princess’s owners, Amanda Berg and Adam Finkler, to come help but they did not respond. When it became apparent to Kelly that Princess would likely kill Moosie if she did not intervene, Kelly grabbed Princess’s jaws and pried them open, releasing Moosie’s neck and allowing Moosie to escape toward the back door of Kelly’s home.