A Review of the Superior Knowledge Rule in Wisconsin: How it Works, Who it Applies to, and How to Defend Against it
Ian Hackett
- Introduction
In 2015, the Wisconsin Supreme Court concluded in Dakter v. Cavallino[1] that the jury was permitted to consider the defendant’s training and knowledge as a “professional truck driver” without holding him to a heightened standard of reasonable care. The Wisconsin Supreme Court, in explaining their decision, held that the jury instruction did not permit the jury to hold the defendant to a heightened standard because, as the defendant was engaged in a profession or trade at the time of the accident, he was to have exercised the knowledge and skill “that a reasonable member of that profession or trade would exercise under the same or similar circumstances” (the “superior knowledge rule”).[2] But do these considerations effectively hold a truck driver to a standard of care higher than that of other drivers? While the superior knowledge rule does not expressly create a heightened standard of care, it seems to have that effect.
This article analyzes the origins of the superior knowledge rule in Wisconsin, explains who the rule is applicable to, examines where the superior knowledge rule fits between ordinary and professional negligence, and explores whether the Dakter court came to the proper conclusion.
- Dakter v. Cavallino
In May 2008, Ronald Dakter (“Dakter”) was driving northbound on Highway 80 in Juneau County with his wife Kathleen when he approached the highway’s intersection with Tilmar Street. Dakter put his turn signal on to turn left, and stopped.[3] Dale Cavallino (“Cavallino”) was driving a semi-trailer truck southbound on Highway 80 and intended to continue straight.[4] Dakter attempted to turn left onto Tilmar Street and collided with Cavallino’s semi-trailer truck.[5] Dakter filed suit against Cavallino, claiming that Cavallino’s negligence caused the collision.[6] The judge gave the following negligence instruction:
At the time of the accident, the defendant, Dale Cavallino was a professional truck driver operating a semi tractor-trailer pursuant to a commercial driver’s license issued by the State of Wisconsin. As the operator of a semi tractor-trailer, it was [the defendant’s] duty to use the degree of care, skill, and judgment which a reasonable semi truck driver would exercise in the same or similar circumstances having due regard for the state of learning, education, experience, and knowledge possessed by semi truck drivers holding commercial driver’s licenses. A semi truck driver who fails to conform to the standard is negligent. The burden is on the plaintiff to prove that [the defendant] was negligent.
The jury found that Cavallino was 65% causally negligent and awarded more than $1 million in damages.[7] Cavallino challenged the verdict, claiming the jury instruction created a heightened standard of care that misstated the law and misled the jury. His post-verdict motions were denied.[8] Cavallino appealed and, on review, the court of appeals also denied his request for a new trial. The appeals court acknowledged that the jury could have misinterpreted the instruction as creating a higher standard of care for semi-truck drivers as opposed to other drivers, but ultimately ruled that any error was not prejudicial to Cavallino’s case.[9]
The Wisconsin Supreme Court considered the following when analyzing the truck driver negligence instruction’s application in Cavallino: (1) the negligence principles of the superior knowledge rule and the profession or trade principle; (2) the applicability of those negligence principles to the defendant; (3) whether the truck driver negligence instruction misstated the law; and (4) whether the truck driver negligence instruction, as part of the jury instructions as a whole, was misleading.[10]
- The Superior Knowledge Rule
The principles of negligence are important to understanding the superior knowledge rule. “Negligence is the failure to exercise ordinary care under the circumstances, that is, the failure to exercise ‘that degree of care which under the same or similar circumstances the great mass of mankind would ordinarily exercise.’”[11] The standard of ordinary care is objective; it is the care that would be exercised by a reasonable actor under the circumstances.[12]
The superior knowledge rule allows for the consideration and addition of any relevant special knowledge or skill a party may have into the ordinary care framework.[13] “If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.”[14]
- Osborne: The Inception of the Superior Knowledge Rule in Wisconsin
Osborne v. Montgomery[15] is attributed with the adoption of the superior knowledge rule in Wisconsin. In Osborne, the plaintiff, a 13-year old boy who was employed by the Wisconsin State Journal to run errands, was returning to his place of employment on a bicycle.[16] As he was travelling north on Pinckney Street, the defendant’s car stopped, and as he opened the door, it made contact with the bicycle, throwing the plaintiff to the ground.[17] The jury found the defendant negligent and assessed the plaintiff’s damages at $2,500. The defendant appealed, contending that the plaintiff was contributorily negligent, the damages assessed by the jury were excessive, and the court erred in its instructions to the jury.[18] The court found that the jury instructions did not “[afford] the jury such a knowledge of the law as will enable it in that case to reach a just result,”[19] and offered the following as a more accurate presentation of the law of negligence:
Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm. In determining whether his conduct will subject the interests of another to an unreasonable risk of harm, a person is required to take into account such of the surrounding circumstances as would be taken into account by a reasonably prudent person and possess such knowledge as is possessed by an ordinarily reasonable person and to use such judgment and discretion as is exercised by persons of reasonable intelligence and judgment under the same or similar circumstances.[20]
The court went on to state that this proposed instruction would not apply where the actor is a child or an insane person.[21] Further, “[if] the actor in a particular case in fact has superior perception or possesses superior knowledge, he is required to exercise his superior powers in determining whether or not his conduct involves an unreasonable risk of injury to the interests of another, so the instruction would not be applicable to such a case.”[22] (Emphasis added.) The Daktercourt left out the emphasized section of that statement when they cited the Osborne decision.[23]
It is important to note this omission by the Dakter court because it would appear that the court in Osborne never laid out a superior knowledge rule. Rather, the court was seemingly distinguishing those with superior knowledge as not being held to the same ordinary care standard as the general population. Superior knowledge and skill increases the standard of care owed to others. So, one could argue, Osborne never adopted the superior knowledge rule as we understand it today because the Osborne court saw superior knowledge or skill as characteristics that require a heightened standard of care.
- Dakter and the Application of the Superior Knowledge Rule
The Dakter court found Osborne to adopt the superior knowledge rule regardless of the actual holding of Osborne and concluded that an actor with special knowledge or skill meets the standard of ordinary care by employing that special knowledge or skill.[24] Said differently, the actor’s superior knowledge is one of the “circumstances” that a reasonable person would use in dealing with a recognizable risk with ordinary care. The court concluded that it is right to tell a jury that a reasonable person will use the relevant special knowledge he has, but not right to tell the jury that he is held to a higher standard of care because of this relevant special knowledge.[25]
The Dakter court was not convinced by Cavallino’s arguments that the superior knowledge rule did not apply to him, concluding that “the conduct of a semi-trailer truck driver should be assessed by reference to the conduct of a reasonable person with the special competence required of semi-trailer truck drivers – not by reference to the conduct of a reasonable, ordinary driver.”[26] To reach this conclusion, the Wisconsin Supreme Court observed that Cavallino was required to undergo specialized testing and obtain a specialized license, and that these demonstrate his special knowledge and skill “necessary to safely operate a semi-trailer truck.”[27] The Wisconsin Supreme Court also cited to numerous Wisconsin statutes and federal regulations to show the qualifications, training, and knowledge required to operate a commercial motor vehicle.
As it stands today in Wisconsin, the superior knowledge rule permits a jury to consider the advanced training or knowledge that a party may have as part of that party’s duty to act as a reasonable person under the circumstances. It is important to note that, while the jury can consider the party’s advanced training or knowledge, such training and knowledge does not raise the party’s standard of care to a professional standard.
- Profession or Trade Principle
In coming to the conclusion that a semi-trailer truck driver with a commercial driver’s license qualifies as someone with superior knowledge or skill, the Dakter court sought to distinguish between the superior knowledge rule and the “profession or trade principle,” as they are often conflated with one another.[28]
The profession or trade principle holds that actors engaged in a profession or trade “must exercise the knowledge and skill that a reasonable member of that profession or trade would exercise under the same or similar circumstances.”[29] The Wisconsin Supreme Court cited to various Wisconsin pattern jury instructions applicable to different professions and trades to “illustrate the principle that a person engaged in a profession or trade must act commensurate with the knowledge and skill a reasonable member of that profession or trade possesses.”[30] The Dakter Court used the building contractors pattern jury instruction as an example:
A building contractor has a duty to exercise ordinary care in the construction or remodeling of a building. This duty requires such contractor to perform work with the same degree of care and skill and to provide such suitable materials as are used and provided by contractors of reasonable prudence, skill, and judgment in similar construction.[31]
The Dakter court noted that while the superior knowledge rule and the profession or trade principle are distinct doctrines, there are instances, such as the matter before them, where both work in combination.[32] However, the court held that even though both standards apply, neither doctrine sets forth a heightened standard of care.[33]
Cavallino first asserted that neither the superior knowledge rule nor the profession or trade principle apply to him because “all users of the roadway have the same duty of ordinary care regardless of their driving experience or skills.”[34]Cavallino further argued that the profession or trade principle applies only in professional malpractice cases or cases of professional negligence. The profession or trade principle should only apply to situations where the actor is “providing a highly specialized professional service to the plaintiff that involves a unique standard of care,” and that semi-trailer truck driving cannot be classified as a profession in that vein.[35]
The truck driver negligence instruction required the jury to consider Cavallino’s special knowledge or skill as a “professional truck driver …”[36] (emphasis added). The Wisconsin Supreme Court saw this language as incorporating both the superior knowledge rule and the profession or trade principle.[37] However, Cavallino argued that labeling him as a “professional truck driver” applied a heightened standard of care – a professional standard of care. The framework for defining “professional” for the application of a professional standard of care in Wisconsin has been laid out in Racine County v. Oracular Milwaukee, Inc.[38]
- The Oracular Framework for Determining What Qualifies as a “Profession”
The Court in Oracular was tasked with deciding whether computer software developers are professionals for the purposes of a contract dispute between Racine County and Oracular. The need to label a person a professional is “part and parcel of a ‘professional malpractice’ action.”[39] Tagging or describing an actor as a professional adds to the burden of the party seeking to be made whole.[40] The court of appeals concluded that computer consultants were not professionals by using eight total characteristics, six from Hospital Computer Systems, Inc. v. Staten Island Hospital, and two from Chase Scientific Research, to serve as a template to measure whether an occupation is a “profession”[41]:
(1) A requirement of extensive formal training and learning; (2) admission to practice by a licensing body; (3) a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace; (4) a system of discipline for violating the code of ethics; (5) a duty to subordinate financial gain to social responsibility; and (6) an obligation of all members to conduct themselves as members of a learned, disciplined and honorable occupation, even in nonprofessional matters; (7) a professional relationship is one of trust and confidence, carrying with it a (8) duty to counsel and advise clients.[42]
The court in Hospital Computer Systems, Inc. further explained that professionals may be sued for malpractice “because the higher standards for care imposed on them by their profession and by state licensing requirements engenders trust in them by clients that is not the norm of the marketplace. When no such higher code of ethics binds a person, such trust is unwarranted. Hence, no duties independent of those created by contract or under ordinary tort principles are imposed on them.”[43] (Emphasis added.) The court of appeals in Chase Scientific Research observed that the term “professional” is “commonly understood to refer to the learned professions, such as medicine and law.”[44]
The Oracular court thus held that the occupation of computer consultant is not a “profession” under this framework because the State of Wisconsin does not license computer consultants nor are computer consultants governed by any enforceable code of ethics.[45]
- How Dakter Differs from Oracular
In observing the framework and holding of Oracular, it is noteworthy that the Dakter Court concluded both that driving a semi-trailer truck “clearly … constitutes a profession or trade within the context of the profession or trade principle,”[46]and that labeling Cavallino as a “professional truck driver” in the jury instruction was not misleading.
In concluding that semi-trailer truck driving clearly constitutes a profession or trade, the Wisconsin Supreme Court turned again to pattern jury instructions to demonstrate that, in Wisconsin, the profession or trade principle clearly applies not only to highly specialized professionals, but more broadly “to those engaged in occupations that require the exercise of ‘acquired learning, and aptitude developed by special training and experience.’”[47] The profession or trade principle governs an actor in the performance of their occupation “so long as reasonably performing that occupation requires acquired learning and aptitude developed by special training and experience.”[48]
This definition of a “profession” seems to conflict with the definition previously adopted by the Oracular framework. Under the Oracular profession framework, a semi-trailer truck driver arguably does not meet the definition of a “professional” despite the extensive training and admissions to a licensing body because there is a lack of a code of ethics that imposes higher standards than other drivers and a lack of a professional relationship of trust and confidence with a duty to counsel and advise clients. While the Dakter court said these considerations do not formally raise the standard of care beyond ordinary care, its decision could have that unintended effect.
- The Truck Driver Negligence Instruction was Not Found to be Misleading Because the Overall Meaning of the Totality of the Negligence Instructions was a Correct Statement of the Law
While a circuit court has broad discretion in crafting jury instructions, the court is required “to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence.”[49]Jury instructions are reviewed as a whole to determine whether “the overall meaning communicated by the instructions was a correct statement of law….”[50] Erroneous jury instructions warrant reversal and a new trial only when the error is prejudicial.[51]
Cavallino contended that, even if the truck driver negligence instruction did not technically misstate the law, that the instruction “had the practical effect of telling the jury that [the defendant] had a higher standard of care because he held a [commercial driver’s license],” which likely misled the jury and was therefore prejudicial.[52] The Dakter court disagreed. The Court found that the truck driver negligence instruction was not a stand-alone instruction[53] and that portions of the jury instructions, especially portions immediately preceding and immediately following the truck driver negligence instruction, set forth that the standard of ordinary care applies to all drivers.[54] Jury instructions are reviewed as a whole “to determine whether they full and fairly convey the applicable rules of law to the jury,”[55] and according to the Wisconsin Supreme Court, these jury instructions when read as a whole conveyed the clear message that the standard of ordinary care applied to both parties.[56]
The Wisconsin Supreme Court did acknowledge that the truck driver negligence instruction could perhaps have been worded more clearly.[57] Previously, the court of appeals had acknowledged that, while the truck driver negligence instruction was not incorrect, “a jury could possibly have misinterpreted the instruction as imposing a higher standard of care on semi-trailer truck drivers than that applied to other drivers….”[58] The law does not require perfection, however, only that the instruction’s overall meaning communicated a correct statement of law.[59] Neither court found any potential error in the jury instruction to be prejudicial.
- Where Does the Law Stand?
Wisconsin defense attorneys are left to try to navigate between the superior knowledge rule and professional negligence. On one side, the Oracular ruling lays out an eight-characteristic framework to ascertain whether an occupation is a “profession” worthy of imposing a higher standard of care and affirmatively states that computer consultants “are not professional as that term is used in the tort of professional negligence.”[60] On the other side, the Dakter majority concluded that operating a semi-trailer truck is a “profession,” that the semi-trailer truck driver’s “profession” and superior knowledge were to be considered as part of the characteristics of his standard of ordinary care, and that labeling the semi-trailer truck driver as a “professional” was not prejudicial or misleading.
How do we reconcile these competing ideas? Chief Justice Roggensack’s concurrence[61] in Dakter may provide an answer. Chief Justice Roggensack concluded that the circuit court’s special skills instruction “was erroneous because it incorrectly stated the law,” but that the error was harmless.[62] Chief Justice Roggensack cited to Oracular in her concurrence, and found that the special skills instruction given “implies that there is a semi-truck driver standard of care and that Cavallino was obligated to conform his conduct to that standard of care, which differs from ordinary care.”[63]Specifically, Chief Justice Roggensack took issue with the part of the instruction that directed that it was Cavallino’s “duty to use the degree of care, skill and judgment which reasonable semi truck drivers would exercise in the same or similar circumstances,” which she deems to be an incorrect statement of law that establishes a semi-truck driver standard of care.[64]
Chief Justice Roggensack also concluded that the circuit court “erroneously exercised its discretion in giving the special skills instruction” because the superior knowledge and skills doctrine only applies “to persons taking actions in a venue where special skills are required by that venue.”[65] She cites to examples such as physicians, lawyers, pharmacists, and dentists to illustrate this limited use of the superior knowledge and skills doctrine; venues where “the circumstances that underlie the standard of ordinary care take into account the similarity of experience among those who work in the exclusive venue where the particularized superior knowledge and skills are required.”[66] Both professional and lay vehicle operators operate in the same venue, i.e., the shared roadway. As such, according to Chief Justice Roggensack, both are subject to the same ordinary care standard and are to act as a reasonable person would under the circumstances without any modification to the circumstances of ordinary care based on the type of vehicle operator.[67] One standard of care applies uniformly to “reflect the nature of the shared venue, a public roadway.”[68]
- Conclusion
There are inconsistencies in the law concerning what constitutes a profession and the applicable standard of care owed by persons in that profession. After the Dakter decision, you can call someone a “professional” and use their superior knowledge as a circumstance to consider without assigning them a higher standard of care. However, the Oraculardecision states that labeling someone as a professional requires them to be held to a heightened standard of professional care. This inconsistency means that, as defense counsel, you must pay special attention to the proposed jury instructions and how they could reflect against your client. Be cautious about allowing a jury instruction to refer to your client as a “professional” unless they satisfy the eight-characteristic rubric outlined in Oracular. Both the court of appeals and the supreme court noted that the truck driver negligence instruction in Dakter at best could have been worded more appropriately, and at worst could have misled the jury to hold Cavallino to a heightened standard of ordinary care.
Author Biography:
Ian Hackett holds B.A.s in Operations & Supply Chain Management and International business from Marquette University and earned his J.D. from Marquette University in 2019. Ian has experience working in the defense of bodily injury and property damage claims for insurance companies.
[1] Dakter v. Cavallino, 2015 WI 67, 363 Wis. 2d 738, 866 N.W.2d 656.
[2] Id. at ¶ 51.
[3] Id. at ¶ 15.
[4] Id. at ¶ 17.
[5] Id. at ¶ 19.
[6] Id. at ¶ 20.
[7] Id. at ¶ 2.
[8] Id. at ¶¶ 3-7.
[9] Id. at ¶ 9.
[10] Id. at ¶¶ 34-37.
[11] Id. at ¶ 40 (citing Osborne v. Montgomery, 203 Wis. 223, 231, 234 N.W. 372 (1931)).
[12] Id. at ¶ 41.
[13] Id.
[14] Restatement (Third) of Torts, § 12, which derives in part from Restatement (Second) of Torts § 289(b), comment m, which explains: “Superior qualities of actor. The standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances. The standard becomes, in other words, that of a reasonable man with such superior attributes.”
[15] Osborne, 203 Wis. 223.
[16] Id.
[17] Id.
[18] Id. at 374.
[19] Id. at 379.
[20] Id. at 379-80.
[21] Id. at 380.
[22] Id. (citing Restatement of the Law of Torts, American Law Institute, § 170).
[23] Dakter, 2015 WI 67 at ¶47.
[24] Id.
[25] Id. at ¶ 60 (citing 1 Dan B. Dobbs et al., The Law of Torts § 132, at 416-17).
[26] Id. at ¶ 78.
[27] Id. at ¶ 71.
[28] Id. at ¶ 50.
[29] Id. at ¶ 51; see also Kerkman v. Hintz, 142 Wis. 2d 404, 419-20, 418 N.W.2d 795 (1988) (holding that a chiropractor must exercise the degree of care, diligence, judgment, and skill which is exercised by a reasonable chiropractor under like or similar circumstances).
[30] Id. at ¶ 52.
[31] Wis. JI-Civil 1022.4.
[32] Dakter, 2015 WI 67 at ¶ 59 (“An actor engaged in a profession or trade who has knowledge or skill superior to that of a reasonable person within that profession or trade must employ such knowledge or skill in order to meet the standard of ordinary care”).
[33] Id. at ¶ 61.
[34] Id. at ¶¶ 66-68.
[35] Id. at ¶ 68.
[36] Id. at ¶ 65.
[37] Id.
[38] Racine Cty v. Oracular Milwaukee, Inc., 2009 WI App 58, 317 Wis. 2d 790, 767 N.W.2d 280.
[39] Id. at ¶ 24.
[40] Id.
[41] Id. at ¶ 32.
[42] The first six characteristics are from Hosp. Computer Sys., Inc. v. Staten Island Hosp., 788 F.Supp 1351, 1361 (D.N.J 1992) and the last two characteristics are from Chase Scientific Research v. NIA Group, Inc., 725 N.Y.S.2d 592, 749 N.E.2d 161, 166 (2001).
[43] Hosp. Comp. Sys., Inc., 788 F.Supp at 1361.
[44] Chase Scientific Research, 749 N.E.2d at 166.
[45] Oracular, 2009 WI App 58 at ¶ 32.
[46] Dakter, 2015 WI 67 at ¶ 82.
[47] Id. at ¶ 80.
[48] Id. at ¶ 81.
[49] Oracular, 2009 WI App 58 at ¶ 31.
[50] Id. at ¶ 32.
[51] Id. at ¶ 33.
[52] Dakter, 2015 WI 67 at ¶¶ 85-86.
[53] Id. at ¶ 87
[54] Id. at ¶ 89-95.
[55] Id.
[56] Id. at ¶ 96.
[57] Id. at ¶ 97.
[58] Id. at ¶ 89; see also Dakter v. Cavallino, 2014 WI App 112, ¶ 44, 358 Wis. 2d 434, 856 N.W.2d 523 (“[W]e see at least some danger that the truck driver instruction could have been interpreted by the jury to suggest that [the defendant] should be held to a different standard of care than other drivers because he is a professional truck driver…. If understood this way, it would state the legal doctrine incorrectly.”).
[59] Dakter, 2015 WI 67 at ¶ 97.
[60] Oracular, 2009 WI App 58 at ¶ 25.
[61] Dakter, 2015 WI 67 at ¶ 99.
[62] Id.
[63] Id. at ¶ 111.
[64] Id. at ¶ 112.
[65] Id. at ¶ 113.
[66] Id.
[67] Id. at ¶ 114.
[68] Id.
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