Tort Law

Lestina v. West Bend Mutual Insurance Co., 176 Wis. 2d 901, 501 N.W.2d 28 (1993)

A soccer player sued an opposing team’s players for leg injuries suffered during an organized game. In most states, participants in contact sports could recover damages for injuries only if they were inflicted intentionally or through reckless misconduct. Writing for a majority, Abrahamson held that the injured player need only prove negligence—that the player who caused the injury failed to use that degree of care which would be exercised by a reasonable person under the circumstances. Applied to recreational sports, this standard requires consideration of matters such as the sport’s risks, rules, customs, and level of physical contact.

Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 3d 573, 701 N.W.2d 440

This lawsuit concerned a claim for medical malpractice during childbirth, which left a newborn with a partially paralyzed, deformed arm. A jury awarded the baby $700,000 in noneconomic damages, but a Wisconsin law capped these damages at $350,000. Writing for the majority, Abrahamson declared the law unconstitutional. Due to the cap, people who suffer severe injuries do not receive full compensation for noneconomic damages, whereas people who sustain minor injuries do. The Wisconsin Supreme Court later reversed this decision, but courts around the country remain divided on this issue.

Hoven v. Kelble, 79 Wis. 2d 444, 256 N.W.2d 379 (1977)

Under the doctrine of res ipsa loquitor, a court or jury may infer that a defendant was negligent without any direct testimony about his conduct at the time the negligence occurred. Instead, the plaintiff must show that the accident could not have occured in the absence of negligence, and that the defendant had “exclusive control” over the instrument of negligence. Abrahamson’s majority opinion clarified the definition of “exclusive control” so that more of these claims could be pursued by injured people.

Johnson v. Kokemoor, 199 Wis. 2d 615, 545 N.W. 2d 495 (1996)

A doctor did not tell his patient that he was inexperienced in performing a difficult aneurysm surgery, that experienced surgeons could achieve better outcomes, and that he could refer the patient to a facility staffed with experienced surgeons. The doctor’s surgery left the patient a quadriplegic. Abrahamson’s opinion established that where provider-specific risk information is relevant to the patient’s decision, the doctor has a duty provide it before obtaining her “informed consent” to a procedure.

Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980)

Ford Motor Company knew that its 1976 Mustangs had a gas tank defect but did not fix it or warn consumers about it. The defect killed and injured people. Ford was sued for products liability, a doctrine that holds a manufacturer liable for injuries caused by placing a defective product in the hands of a consumer. In this opinion, Abrahamson surveyed the history of punitive damages in Wisconsin and around the country and established that punitive damages may be recovered in a products liability case.

Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994)

A mother who witnessed the aftermath of a bicycle accident that killed her son brought a claim for negligent infliction of emotional distress. At the time, Wisconsin law barred her claim because she was not in the “zone of danger” and her distress had no physical manifestations. Abrahamson’s majority opinion established new rules governing claims of negligent infliction of emotional distress, and they allowed the mother to pursue her claim.