Brittany Noffke, a ninth-grade student at Holmen High School, fell while practicing a three-person cheerleading stunt and suffered a severe head injury. She sued Kevin Bakke, another cheerleader, for alleged negligence in failing to properly spot her during the stunt. Bakke defended on the ground he is immune from negligence liability under Wisconsin Stat. § 895.525(4m)(a). This statute provides that a participant “in a recreational activity that includes physical contact between persons in a sport involving amateur teams” is liable only for causing injury to another participant by acting “recklessly or with intent to cause injury.”
In Noffke v. Bakke, 308 Wis.2d 410, 748 N.W.2d 195 (Wis. App. 2008), a Wisconsin appellate court held that cheerleading is not a “contact sport” for purposes of this statute. The court initially assumed, without deciding, that cheerleading is an amateur team sport. Finding that the statutory meaning of “physical contact” is ambiguous, the court relied on the title of the statute (“Liability of contact sports participants”) and a dictionary definition of “contact sport” (“any sport that necessarily involves physical contact between opponents”) to define this term. It concluded that, although “the risks and the athleticism involved in cheerleading are comparable to those in contact sports,” cheerleading is not a “contact sport” because “it does not involve physical contact between opponents.” Therefore, Wisconsin Stat. § 895.525(4m)(a) does not bar Noffke’s negligence claim against Bakke.
The Wisconsin Supreme Court granted Bakke’s petition to appeal this ruling, and the case is awaiting decision after oral argument last fall. Continue reading “Is Cheerleading A Sport?”
I wanted to comment briefly on one of the cases recently accepted by the Wisconsin Supreme Court, as reported here by Jessica Slavin.
In State v. Welda, the court will consider the application of the hate crime penalty enhancer set forth in § 939.645(1) providing for increased penalties where the state can prove that a defendant “[i]ntentionally select[ed] the person against whom the crime . . . is committed . . . in whole or in part because of the actor’s belief or perception regarding the race . . . of that person . . . .”
Without getting into the distasteful detail, the defendants were convicted of disorderly conduct arising out of what seems to be an argument with some African-American passers-by who objected to the defendants’ repeated use of the n-word.
There are some not very interesting (and not particularly powerful) arguments that the comments were not directed to the African-American complainants.
But there are three things that I think merit comment. Continue reading “Thoughts on Welda and Hate Crimes”
The Wisconsin Supreme Court recently voted to accept review in three more cases, one criminal case and two civil ones.
The criminal case is State v. Popke, 2008AP446-CR. From the court’s website, “A decision by the Supreme Court could clarify if a momentary crossing of the center line creates probable cause to believe that a motorist has failed to drive on the right side of the roadway, as required by Wis. Stat. § 346.05. Alternatively, the court may provide further guidance as to what driving conduct a police officer must observe in order to create a reasonable suspicion of an OWI violation. From Waupaca County.” Continue reading “Wisconsin Supreme Court Accepts Three More Cases”
As just mentioned, the Wisconsin Supreme Court has decided to accept six new cases, three criminal cases and three civil ones. My prior blog post about those cases discussed the criminal cases; this post discusses the civil ones.
The most newsworthy civil matter seems to be Biskupic v. Cicero, 2007AP2314. Through this appeal Vince Biskupic seeks to have his libel and slander claims against various defendants reinstated. Biskupic, as you may know, is a former Outagamie County D.A. who ran for state attorney general in 2002. Biskupic v. Cicero, 2008 WI App 117, ¶ 1. The defendants include a Shawano newspaper, the Shawano Leader, which published a false report stating that Biskupic had been convicted of bribery and graft. Id. ¶1
The Defendants moved for summary judgment against Biskupic’s claims. The circuit court “concluded Biskupic was a limited purpose public figure, and the actual malice standard applied. The court held the summary judgment submissions showed ‘the defamation occurred as a result of confusion and negligence, not malice.'” The circuit court also rejected Biskupic’s argument that he should be granted judgment against the newspaper defendants, or a jury instruction, based on a reporter’s destruction of interview notes. Id. ¶10-11. The Court of Appeals affirmed, and the Supreme Court has accepted Biskupic’s petition for review. Continue reading “Newly Accepted Civil Cases at Wisconsin Supreme Court, Including Biskupic Slander Case”
The Wisconsin Supreme Court recently considered a number of petitions for review and voted to accept six new cases. (As I said before, I am planning to write here whenever the Wisconsin Supreme Court accepts new cases. This is the second of that series.)
The cases accepted today include three criminal cases and three civil cases. This post describes only the three criminal cases. I’ll blog next about the civil cases.
Probably the most interesting of the three criminal cases is State v. Welda, 2007AP2024-CR. State v. Welda presents questions of interpretation and constitutionality of Wisconsin’s disorderly conduct crime and hate crime enhancer penalty. The underlying charges stem from incidents in which three Janesville residents used offensive racial epithets against a number of African-American residents, including two children. State v. Welda, 2008 WI App U 135, ¶ 2-5. When police arrived at the scene, 10-15 residents had gathered in the area of the disturbance. Id. ¶ 2. In addition to describing their African-American neighbors with inflammatory racial epithets, one of the Defendants also waved a Confederate flag during the incident, and two of the Defendants continued to speak the racial epithets after police directed them not to stop. Id. ¶ 3-5. Continue reading “Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer”