                                                            2015 WI 67

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:               2013AP1750
COMPLETE TITLE:         Ronald J. Dakter and Kathleen M. Dakter,
                                   Plaintiffs-Respondents-Cross-
                        Appellants,
                             v.
                        Dale L. Cavallino, Hillsboro Transportation
                        Company, LLC
                        and Michigan Millers Mutual Insurance Company,
                                   Defendants-Appellants-Cross-
                        Respondents-Petitioners.

                              REVIEW OF A DECISION OF THE COURT OF APPEALS
                             (Reported at 358 Wis. 2d 434, 856 N.W.2d 523)
                                       (Ct. App. 2014 – Published)
                                         PDC No: 2014 WI App 112

OPINION FILED:          July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 22, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Juneau
   JUDGE:               John P. Roemer Jr.

JUSTICES:
   CONCURRED:           ROGGENSACK, C. J. concurs (Opinion filed).
                        ZIEGLER, joined by GABLEMAN, JJ. concur (Opinion
                        filed).
  DISSENTED:
  NOT PARTICIPATING:

ATTORNEYS:
       For             the         defendants-appellants-cross-respondents-
petitioners, there were briefs by Paul D. Curtis, Timothy M.
Barber and Axley Brynelson, LLP, Madison. Oral argument by Paul
D. Curtis.




       For the plaintiffs-respondents-cross-appellants, there was
a brief by John R. Orton and Curran, Hollenbeck & Orton, S.C.,
Mauston. Oral argument by John R. Orton.
     An amicus curiae brief was filed by William C. Gleisner,
III and Pitman, Kalkhoff, Sicula & Dentice, Milwaukee and Lynn
R. Laufenberg, and Laufenberg, Jassack & Laufenberg, Milwaukee,
on behalf of The Wisconsin Association for Justice.




                                2
                                                                          2015 WI 67
                                                                  NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2013AP1750
(L.C. No.    2009CV147)

STATE OF WISCONSIN                            :             IN SUPREME COURT

Ronald J. Dakter and Kathleen M. Dakter,

          Plaintiffs-Respondents-Cross-
Appellants,                                                            FILED
      v.
                                                                   JUL 7, 2015
Dale L. Cavallino, Hillsboro Transportation
Company, LLC, and Michigan Millers Mutual                            Diane M. Fremgen
                                                                  Clerk of Supreme Court
Insurance Company,

          Defendants-Appellants-Cross-
Respondents-Petitioners.




      REVIEW of a decision of the Court of Appeals.                   Affirmed.


      ¶1      SHIRLEY     S.   ABRAHAMSON,   J.    This     is    a   review      of   a
published decision of the court of appeals affirming a judgment
and   order    of   the    Circuit   Court   for   Juneau        County,     John      P.
Roemer, Judge.1




      1
       Dakter v. Cavallino, 2014 WI App 112, 358 Wis. 2d 434, 856
N.W.2d 523.
                                                                   No.     2013AP1750



       ¶2     This case arises from the collision of a passenger
automobile driven by Ronald J. Dakter, the plaintiff,2 and a 65-
foot       semi-trailer     truck   operated       by     Dale   Cavallino,      the
defendant.3      After a 10-day trial, the jury found the defendant
65   percent     causally    negligent       and   the    plaintiff   35    percent
causally negligent and assessed damages at $1,097,955.86 for the
plaintiff and $63,366 for the plaintiff's wife.
       ¶3     The defendant raises only one question of law for our
consideration:        Was    the    truck    driver      negligence   instruction
given to the jury on the standard of care applicable to the
defendant as the operator of a semi-trailer truck erroneous,
such that the defendant is entitled to a new trial?

       ¶4     The truck driver negligence instruction that is the
subject of the defendant's challenge provided in relevant part
as follows:


       2
       For ease of reference, we refer to Ronald J. Dakter as the
plaintiff. Kathleen M. Dakter, the plaintiff's wife, is also a
complainant in the instant case and was awarded damages for her
injuries.   Ms. Dakter is governed by the court's ruling in the
instant case.
       3
       For ease of reference, we refer to Dale Cavallino as the
defendant.      Hillsboro   Transportation  Company,   LLC   (the
defendant's employer) and Michigan Millers Mutual Insurance
Company (the employer's insurance provider) are also defendants.
They are governed by the court's ruling in the instant case.

     The parties, the circuit court, and the court of appeals
refer to the truck operated by the defendant in various ways——as
a semi, a semi truck, a semi-tractor trailer, and a semi-trailer
truck.   We refer to it as a semi-trailer truck throughout this
opinion.



                                         2
                                                                  No.    2013AP1750


     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.
     ¶5      The defendant asserts that the truck driver negligence
instruction       was   erroneous    because   it   directed      the    jury     to
consider the defendant's special knowledge and skill as a semi-
trailer truck driver when determining whether the defendant was
negligent.        According to the defendant, an instruction regarding

an actor's        special knowledge and skill should not be given in
"mine-run" motor vehicle negligence cases like the instant case;
it should be given only in professional negligence cases.                        The
defendant contends that by giving an instruction regarding the
defendant's       special   knowledge    and   skill,     the    circuit       court
imposed a heightened standard of care on him.                   This, says the
defendant, was prejudicial error entitling him to a new trial.
     ¶6      In    contrast,   the   plaintiff   contends       that    the    truck
driver    negligence     instruction    directed    the   jury    to    take     the
special    knowledge     and   skill    possessed   by    professional         semi-
trailer truck drivers into account only in order to determine

whether the defendant met the standard of ordinary care.                      In the
plaintiff's view, the truck driver negligence instruction did



                                        3
                                                             No.   2013AP1750



not impose a heightened standard of care on the defendant and
was not erroneous.
       ¶7      The circuit court sided with the plaintiff, entering a
judgment on the verdict in favor of the plaintiff and denying
the defendant's post-verdict motions.
       ¶8      The court of appeals affirmed the judgment and order
of the circuit court.          The court of appeals explained that it
did not consider the challenged jury instruction a misstatement
of the law:

       [I]n evaluating whether an actor has acted as a
       reasonable person would, jurors may consider the
       actor's   superior  knowledge   or   skills   when the
       knowledge or skills give the actor an ability to avoid
       injury or damage to others. If someone "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 reasonable careful person."4
       ¶9      The court of appeals further explained that although
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:

       [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, higher standard of care than other drivers
       because he is a professional truck driver. . . . If
       understood this way, it would state the legal doctrine
       incorrectly.5
       4
           Dakter, 358 Wis. 2d 434, ¶39 (quoted source omitted).
       5
           Id., ¶44.


                                        4
                                                                                No.     2013AP1750



       ¶10       The court of appeals ultimately concluded that it was
"at least as likely as not that jurors aiming to apply the
[truck driver negligence] instruction would have hit the mark by
focusing on evidence of [the defendant's] superior knowledge and
skills, and not missed the mark by holding him to a separate,
higher truck driver standard of care."6
       ¶11       Nevertheless, the court of appeals opted to assume,
without deciding, that the truck driver negligence instruction
was erroneous.            It then denied the defendant relief, concluding
that       any    error    in     the    challenged       jury        instruction       was       not
prejudicial.
       ¶12       We    conclude     that    the       circuit    court    did     not       err    in

giving      the       truck    driver      negligence      instruction.               The    truck
driver negligence instruction did not misstate the law and was
not misleading.               The defendant's arguments to the contrary are
not    persuasive,         and    the     defendant       is    not    entitled       to     a    new
trial.       Accordingly, although our reasoning differs, we affirm
the decision of the court of appeals.
                                                  I
       ¶13       Many     details       about   the     collision        that    spawned          the
instant litigation remain in dispute.                          The following description
of the collision focuses on the uncontested facts.
       ¶14       The    collision       took    place     on     May    29,     2008,       at    the
intersection of State Trunk Highway 80 (running north/south) and


       6
           Id., ¶47.



                                                  5
                                                                              No.    2013AP1750



State Trunk Highway 82 (running east/west).                             This intersection
is located in Elroy, Juneau County, Wisconsin.
       ¶15    The     plaintiff       was    driving         a    passenger         automobile
northbound on Highway 80.              He intended to turn left onto Tilmar
Street,      which    is    the    portion       of    Highway     82    running      west    of
Highway 80.         He approached the intersection with his turn signal
on and stopped.
       ¶16    Wyman Hoiland, who is not a party to this lawsuit, was
driving a van southbound on Highway 80 and intended to turn left
onto Highway 82.            Hoiland approached the intersection with his
turn   signal       on     and    stopped.           His   vehicle      was   opposite       the
plaintiff's vehicle in the intersection and was in front of the

defendant's semi-trailer truck.
       ¶17    The defendant, who had a commercial driver's license
issued by the State of Wisconsin and had driven a semi-trailer
truck for 31 years, was driving a 65-foot semi-trailer truck
southbound on Highway 80.                  The defendant intended to continue
straight on Highway 80.
       ¶18    As the defendant approached the intersection, Hoiland
may have turned left, permitting the defendant to remain in his
lane and continue straight.                      Alternatively, Hoiland may have
remained in the intersection waiting to turn left, leading the
defendant to switch into the right-hand lane in order to drive
around Hoiland and continue straight.

       ¶19    In     any    event,    it    is       undisputed    that       the   plaintiff
attempted to execute a left turn onto Tilmar Street and collided


                                                 6
                                                                            No.     2013AP1750



with     the    defendant's         semi-trailer         truck.           The      plaintiff
sustained serious injuries.
       ¶20     The    plaintiff       filed       suit    against         the     defendant,
asserting that the defendant's negligence caused the collision.
       ¶21     Before      trial,     the    parties      agreed      that        the    usual
standard of ordinary care applies to semi-trailer truck drivers.
They   disagreed,          however,    about      whether     the    jury       should     hear
expert       testimony      regarding       the    special     knowledge          and     skill
possessed by semi-trailer truck drivers.
       ¶22     The circuit court agreed with the position of both
parties      that    the    standard    of     ordinary      care    applies       to     semi-
trailer      truck    drivers,      stating       as   follows:      "I    don't        believe

there is a heightened standard of care.                      I believe all of us are
required to maintain our speed, maintain our management, control
of our vehicles, and also to maintain a proper look-out."
       ¶23     The circuit court went on to explain that with regard
to semi-trailer truck drivers, ordinary care means the care "a
reasonable and prudent truck driver would use under the same or
similar circumstances."               Accordingly, the circuit court ruled
that     expert      testimony        regarding        the    knowledge           and    skill
possessed by semi-trailer truck drivers was admissible.
       ¶24     Three expert witnesses testified regarding the safety
standards and practices that govern semi-trailer truck drivers.
       ¶25     The plaintiff called Charles Collins, a retired truck

driving safety instructor for a driver training program at a
technical college, as an expert witness.                            Collins explained,
among other things, that the defendant was driving his semi-
                                              7
                                                                             No.       2013AP1750



trailer truck with an empty trailer and that "[i]t takes longer
to stop with an empty trailer."                       Collins also explained that the
pavement was wet and that "[w]hen the pavement is wet, it is
accepted in all literature, textbooks, [and] videos that you
must reduce your speed by a third," which the defendant did not
do.
        ¶26   The     plaintiff          also    called    Andrew    Sievers,      a     safety
consultant,       as      an    expert      witness.         Sievers     testified         about
defensive     driving          techniques         for   semi-trailer      truck        drivers,
including the "cushion of safety" (that is, the distance) that
semi-trailer truck drivers should maintain between the front of
their trucks and the back of the vehicles in front of them.

Sievers opined that the defendant had not been maintaining a
proper cushion of safety when the collision occurred.                                   Sievers
also explained that an intersection is "the location where a
truck    driver       has      the   most       likelihood    to    be   involved         in    an
accident, and because of that . . . the truck driver should be
extra cautious and should reduce their speed . . . ."                                   Sievers
testified that in his opinion, the defendant was driving at an
unsafe speed considering that he was entering an intersection in
rainy weather.
        ¶27   The        defendant        called        William     Emerick,       a     safety
consultant,         as    an    expert          witness.      Emerick        discussed         the
importance       of      maintaining        hazard      awareness      and    using      common

sense     when      operating        a     semi-trailer       truck.         Emerick        also
asserted that driving as slowly as official safety standards
require can be dangerous, even when approaching an intersection
                                                  8
                                                                       No.    2013AP1750



in rainy weather, because it can cause "traffic backup" and is
"something people wouldn't expect."                   Emerick testified that in
his view, when the accident occurred, the defendant was driving
his truck in conformity with normal safe driving practices and
industry standards for drivers of commercial motor vehicles.
        ¶28    When    the   circuit   court       took    up   the   issue   of   jury
instructions near the close of trial, the parties revisited the
subject of the special knowledge and skill possessed by semi-
trailer       truck    drivers.      After       lengthy   argument,    the    circuit
court       gave      the    truck   driver        negligence     instruction,       an
instruction specific to the defendant as the operator of a semi-
trailer truck.

        ¶29    The jury returned a verdict in favor of the plaintiff.
The defendant filed post-verdict motions seeking a new trial.
The circuit court denied the defendant's post-verdict motions
and entered a judgment on the verdict in favor of the plaintiff.
The court of appeals affirmed.
                                         II
        ¶30    Because the defendant challenges a jury instruction,
we first recite the standard of review applicable to a challenge
to jury instructions.
        ¶31    A circuit court has broad discretion in crafting jury
instructions based on the facts and circumstances of the case.7
A circuit court is required, however, to exercise its discretion

        7
       State v. Neumann, 2013 WI 58, ¶89, 348 Wis. 2d 455, 832
N.W.2d 455.



                                             9
                                                                                       No.     2013AP1750



"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."8
       ¶32        We review jury instructions as a whole to determine
whether "the overall meaning communicated by the instructions
was a correct statement of the law . . . ."9                                   Whether the circuit
court erred by stating the law incorrectly or in a misleading
manner       constitutes             a    question            of    law    this       court     decides
independently            of,       but    benefiting           from,      the    analyses       of    the
circuit court and court of appeals.10
       ¶33        Even if the truck driver negligence instruction was in
error, the defendant is not necessarily entitled to a new trial.

Erroneous jury instructions warrant reversal and a new trial
only       when    the       error       is   prejudicial.11              Whether       an    error    is
prejudicial             is     a     question            of        law    this        court     decides
independently            of,       but    benefiting           from,      the    analyses       of    the
circuit court and court of appeals.12
                                                    III


       8
       Neumann, 348 Wis. 2d 455, ¶89 (internal quotation marks
omitted).
       9
       Fischer by Fischer v. Ganju, 168 Wis. 2d 834, 850, 485
N.W.2d 10, 16 (1992).
       10
            Neumann, 348 Wis. 2d 455, ¶89.
       11
            Fischer, 168 Wis. 2d at 849-50.
       12
       Weborg v. Jenny, 2012 WI 67, ¶43, 341 Wis. 2d 668, 816
N.W.2d 191.



                                                    10
                                                                No.    2013AP1750



     ¶34   Our      analysis      of     the     truck    driver      negligence
instruction has three parts.
     ¶35   First,    we    set   forth    the    negligence   principles    that
govern the instant dispute, namely the superior knowledge rule,
which requires an actor with special knowledge or skill to act
commensurate with that knowledge or skill, and the profession or
trade principle, which requires an actor engaged in a profession
or trade to act as a reasonable member of such profession or
trade would act under the same or similar circumstances.
     ¶36   Second,     we      determine       that   these   two     negligence
principles apply to the defendant and thus that the truck driver
negligence instruction did not misstate the law.

     ¶37   Third, we determine that in the context of the jury
instructions as a whole, the truck driver negligence instruction
was not misleading.
     ¶38   Because    the   truck      driver    negligence   instruction    was
neither incorrect nor misleading, we conclude that the circuit
court did not err.        We therefore need not and do not address the
issue of prejudice.
                                         A
     ¶39   We begin with well-settled principles of negligence.
     ¶40   Negligence is the failure to exercise ordinary care
under the circumstances, that is, the failure to exercise "that




                                         11
                                                                       No.       2013AP1750



degree of care which under the same or similar circumstances the
great mass of mankind would ordinarily exercise."13
        ¶41        The    standard    of    ordinary     care    is   an         objective
standard; it is the care that would be exercised by a reasonable
actor under the circumstances.
        ¶42        The    circumstances     that     demarcate      the      bounds      of
ordinary care in a particular case include any relevant special
knowledge or skill the actor brings to bear.14                   This principle is
sometimes called the "superior knowledge rule."15
        ¶43        Restatement (Second) of Torts § 289, at 41 (1965) sets
forth        the    superior    knowledge    rule   as   follows:     "The       actor   is
required           to    recognize   that   his    conduct   involves        a    risk   of

causing an invasion of another's interest if a reasonable man
would do so while exercising . . . (b) such superior attention,
perception, memory, knowledge, intelligence, and judgment as the
actor himself has."16

        13
             Osborne v. Montgomery, 203 Wis. 223, 231, 234 N.W. 372
(1931).
        14
             Id. at 231.
        15
       See, e.g., 1 Dan B. Dobbs et al., The Law of Torts § 132,
at 417 (2nd ed. 2011).
        16
       Comment m. to Restatement (Second) of Torts § 289 (1965)
explains:

        m. 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
                                                        (continued)
                                             12
                                                                        No.    2013AP1750



       ¶44    Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 12, at 141 (2010) describes the superior
knowledge rule as follows: "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."17
       ¶45    In     the     seminal     Wisconsin      case      of        Osborne    v.
Montgomery, 203 Wis. 223, 234 N.W. 372 (1931), this court made
clear that the superior knowledge rule applies in Wisconsin.
       ¶46    The Osborne court first defined negligence as conduct
that foreseeably creates an unreasonable risk of harm to the

interests of another, stating:

       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.18
       ¶47    The Osborne court then declared: "If the actor in a
particular case in fact has superior perception or possesses



       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.
       17
       According to the Reporter's Note to Restatement (Third)
of Torts, § 12 derives in part from Restatement (Second) of
Torts § 289(b), comment m, set forth at note 16, supra.
       18
            Osborne, 203 Wis. at 242.



                                          13
                                                                             No.    2013AP1750



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 . . . ."19      Thus, pursuant to the superior knowledge rule
adopted in Osborne, an actor with special knowledge or skill
meets the standard of ordinary care by employing that special
knowledge or skill.
     ¶48    Various tort texts provide similar explanations of the
superior knowledge rule.            See, for example, the following:
     •      "The    superior        knowledge       rule       can    be     explained       by
            saying that the actor's superior knowledge is one of
            the    'circumstances'        that      a     reasonable         person     would

            take    into   account       or    by    saying          that    a     reasonable
            person will use all the knowledge he actually has in
            dealing    with     a    recognizable            risk. . . . .         So   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."      1 Dan B. Dobbs et al., The Law of Torts
            § 132, at 417 (2nd ed. 2011) (footnotes omitted).
     •      "[I]f a person in fact has knowledge, skill, or even
            intelligence superior to that of the ordinary person,
            the law will demand of that person conduct consistent
            with it.       Experienced milk haulers, hockey coaches,


     19
          Osborne, 203 Wis. at 243.



                                          14
                                                                                      No.     2013AP1750



               expert     skiers,              construction           inspectors,       and       doctors
               must     all    use           care    which       is     reasonable     in     light    of
               their      superior              learning         and       experience,        and     any
               special         skills,              knowledge         or     training       they      may
               personally           have       over       what     is      normally    possessed       by
               persons in the field."                         W. Page Keeton et al., Prosser
               and      Keaton          on     Torts       § 32,      at    185   (5th      ed.     2000)
               (footnotes omitted).
        •      "In addition to the knowledge that may be imputed to a
               reasonable           person,          a     person's        actual     knowledge       and
               skills may be taken into account when the level of the
               person's knowledge or skills exceeds the average."                                       1

               J.D.      Lee        &     Barry          A.    Lindahl,       Modern        Tort     Law:
               Liability & Litigation § 3:21 (2d ed. 1990).
        ¶49    These texts neither bind this court nor declare the
law   of      Wisconsin.                They    do,       however,         support    the     superior
knowledge rule adopted in Osborne.
        ¶50    The parties' briefs and the court of appeals opinion
spend       much   time    discussing                the      superior       knowledge       rule     and
debating       whether         it        applies         to     the      defendant.           A     close
examination        of    the     briefs          and      the    court       of   appeals     opinion,
however,       reveals that the parties and the court of appeals have
at times conflated the superior knowledge rule with a related
negligence principle that applies to individuals engaged in a
profession or trade.                We turn to that principle now.
        ¶51    Ordinarily, actors engaged in a profession or trade
must exercise the knowledge and skill that a reasonable member
                                                      15
                                                                       No.        2013AP1750



of that profession or trade would exercise under the same or
similar circumstances.20            In Kerkman v. Hintz, 142 Wis. 2d 404,
419-20, 418 N.W.2d 795 (1988), for example, this court stated
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."21
       ¶52       Various Wisconsin pattern jury instructions regarding
the standard of ordinary care applicable to those in particular
professions and trades 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.

       ¶53       For   example,   the    Wisconsin       pattern    jury    instruction
titled       "Negligence:    Building         Contractor"    defines       the    ordinary
care standard applied to building contractors as the degree of
care exercised by a reasonably prudent and skilled contractor
engaged in a similar construction project.                         Thus, a jury must
consider         the    knowledge       and     skill     possessed        by     building

       20
       Restatement (Second) of Torts § 299A explains the role an
actor's engaging in a profession or trade plays in determining
whether the actor was negligent as follows:          "Unless he
represents that he has greater or less skill or knowledge, one
who undertakes to render services in the practice of a
profession or trade is required to exercise the skill and
knowledge normally possessed by members of that profession or
trade in good standing in similar communities."
       21
       See also Zastrow v. Journal Commc'ns, Inc., 2005 WI App
178, ¶25, 286 Wis. 2d 416, 703 N.W.2d 673 ("In the professional
negligence case, the duty is . . . based on what a reasonable
professional would do in the same or similar circumstances.").



                                              16
                                                                    No.     2013AP1750



contractors        to   determine       whether    a   particular     contractor's
conduct met the standard of ordinary care.
      ¶54    The    pattern      jury   instruction    applicable     to    building
contractors provides in full as follows:

      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.22
      ¶55    Likewise,          the     pattern    jury      instruction       titled
"Negligence        of   Insurance       Agent"    defines    the    ordinary     care
standard applied to insurance agents by reference to the care,
skill, and judgment usually employed by agents licensed to sell

insurance in Wisconsin.               Accordingly, a jury must consider the
knowledge and skill possessed by licensed insurance agents to
determine whether a particular agent's conduct met the standard
of ordinary care.
      ¶56    This pattern jury instruction reads in relevant part
as follows:        "An insurance agent, such as (defendant), must use

the   degree       of   care,     skill,    and   judgment    which    is    usually
exercised under the same or similar circumstances by insurance
agents licensed to sell insurance in Wisconsin."23
      ¶57    These are just two of several examples of Wisconsin's
adoption of the profession or trade principle.                     The profession

      22
           Wis JI——Civil 1022.4.
      23
           Wis JI——Civil 1023.6.



                                           17
                                                             No.   2013AP1750



or   trade   principle   is   similarly    reflected   in    pattern    jury
instructions regarding the standard of ordinary care applicable
to   teachers,24   chiropractors,25    doctors,26   nurses   and   licensed
technicians,27 dentists,28 and lawyers.29



      24
       Wis JI——Civil 1381 (providing in relevant part that a
teacher must "maintain that degree of supervision which an
ordinarily   prudent  (chemistry teacher,   physical  education
teacher, manual arts teacher) would maintain under the same or
similar circumstances").
      25
       Wis JI——Civil 1023.8 (stating that a chiropractor is
"required to use the degree of care, skill, and judgment which
reasonable chiropractors would exercise in [] like or similar
circumstances, having due regard for the state of chiropractic
knowledge at the time (plaintiff) was treated").
      26
       Wis JI——Civil 1023 (explaining that a doctor is required
to use the degree of care, skill, and judgment which a
reasonable doctor in the same medical sub-field would exercise
"in the same or similar circumstances, having due regard for the
state of medical science at the time (plaintiff) was (treated)
(diagnosed)").
      27
       Wis JI——Civil 1023.7 (stating that registered nurses and
licensed technicians have the duty "to use the degree of care,
skill,   and  judgment   which  reasonable   (registered  nurses)
(licensed technicians) would exercise in the same or similar
circumstances, having due regard for the state of learning,
education, experience, and knowledge possessed by (registered
nurses) (licensed technicians) at the time in question").

     Plaintiff's counsel told the circuit court that he modeled
his proposed truck driver negligence instruction after the
instruction applicable to nurses and licensed technicians.
      28
       Wis JI——Civil 1023.14 (providing that a dentist must
exercise "the degree of care, skill, and judgment" that a
reasonable dentist would exercise "in the same or similar
circumstances, having due regard for the state of dental science
at the time (plaintiff) was (treated) (diagnosed)").



                                      18
                                                                           No.    2013AP1750



     ¶58     The    profession      or    trade       principle     and    the    superior
knowledge    rule     are    closely      related.          Both    recognize      that    a
reasonable       actor     will   use    any       relevant     special    knowledge      or
skill the actor possesses, including the knowledge and skill the
person possesses on account of his or her occupation.30
     ¶59     The two doctrines also work in combination in certain
cases:      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.
     ¶60     Dobbs'        text    on     torts       explains       the     overlapping
relationship between these two negligence doctrines as follows:

     Superior   or  specialized   knowledge  or skill.  A
     reasonable person will act in the light of (a)
     knowledge shared by the community generally and also
     (b) information, knowledge and skill that he himself
     has that is not generally known and that reasonable
     people would not ordinarily have. . . .

     29
       Wis JI——Civil 1023.5 (stating that "it is a lawyer's duty
to use the degree of care, skill, and judgment which reasonably
prudent lawyers practicing in this state would exercise under
like or similar circumstances").
     30
       The Reporter's Note to Restatement (Third) of Torts § 12,
at 144, illustrates the connection between the profession or
trade principle and the superior knowledge rule by explaining
that the superior knowledge rule "can easily be applied to cases
involving the liability of professionals.    Those professionals
routinely represent themselves as having special knowledge and
skills . . . ." (Citation omitted.)

     See also Restatement (Second) of Torts § 299A, cmt. a., at
73 (1965), stating:     "All professions, and most trades, are
necessarily skilled . . . ."



                                              19
                                                            No.     2013AP1750


      The superior knowledge rule has obvious application to
      professionals like physicians and surgeons, who are
      held to possess the skills and knowledge of others in
      good standing in their profession.    A physician who
      knows more than a layman must use that additional
      knowledge in the practice of medicine. But the point
      reaches even further. A physician who knows more than
      other physicians is also expected to use that special
      knowledge. . . . The principle applies equally to any
      kind of skill or experience.

      Reasonable person standard and superior knowledge. The
      superior knowledge rule can be explained by saying
      that the actor's superior knowledge is one of the
      "circumstances" that a reasonable person would take
      into account or by saying that a reasonable person
      will use all the knowledge he actually has in dealing
      with a recognizable risk. Either way, the standard of
      care, that of the reasonable person under the same or
      similar circumstances, remains the same.     So 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.31
      ¶61    Importantly, although both the superior knowledge rule
and the profession or trade principle describe the circumstances
the   jury   is   to   consider   in   determining    negligence,      neither
doctrine sets forth a heightened standard of care.32

      ¶62    In sum:



      31
       1 Dobbs et al., supra note               15,    § 132,     at   416-17
(footnotes omitted, emphasis added).
      32
       Restatement (Third) of Torts § 12, comment a. at 142,
explains:   "It can be noted that even though the actor's extra
skills can properly be considered, these skills do not establish
for the actor a standard of care that is higher than reasonable
care; rather, they provide a mere circumstance for the jury to
consider in determining whether the actor has complied with the
general standard of reasonable care."



                                       20
                                                                            No.        2013AP1750



     •       Under     the     superior     knowledge          rule,    a     person        with
             special knowledge or skill is required to exercise the
             care a reasonable person with such special knowledge
             or   skill      would    exercise        under    the     same       or    similar
             circumstances.
     •       Under    the      profession        or    trade    principle,         a     person
             engaged      in    a    profession        or     trade    is     required        to
             exercise        the     care    a        reasonable       member          of    the
             profession or trade would exercise under the same or
             similar circumstances.
     •       Regardless of whether the jury applies the superior
             knowledge       rule,    the   profession          or     trade      principle,

             both doctrines, or neither doctrine, the standard of
             care remains that of ordinary care.
     ¶63     With these negligence principles in mind, we turn to
the truck driver negligence instruction, which is the subject of
the defendant's challenge in the present case.
                                            B
     ¶64     We now explore whether the superior knowledge rule and
the profession or trade principle apply to the defendant in the
instant case.        We conclude that they do and thus that the truck
driver negligence instruction did not misstate the law.
     ¶65     The truck driver negligence instruction required the
jury to consider the defendant's special knowledge or skill as a

"professional" semi-trailer truck driver, thereby incorporating
both the superior knowledge rule and the profession or trade
principle.    The instruction provided as follows:
                                            21
                                                           No.   2013AP1750


     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 a commercial driver's license.
     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.
     ¶66    The   defendant   asserts,   however,   that    neither    the
superior knowledge rule nor the profession or trade principle
applies to him.
     ¶67    The defendant concedes that an individual must undergo
specific training and testing to obtain a commercial driver's

license and operate a semi-trailer truck.           Nevertheless, the
defendant contends that the jury cannot take into account the
special knowledge or skill required to operate a semi-trailer
truck.     According to the defendant, "all users of the roadway
have the same duty of ordinary care regardless of their driving
experience or skills."        In the defendant's view, permitting a
jury to "consider a driver's individual skill, experience, and
training would result in an unworkable subjective standard of
care with 'ceaseless variations.'"33


     33
       The defendant places heavy reliance on Saxby v. Cadigen,
266 Wis. 391, 63 N.W.2d 820 (1954), and on several cases from
other jurisdictions, for the proposition that it is error to
instruct a jury to consider the knowledge, skill, or experience
of particular drivers in a motor vehicle negligence case.

                                                             (continued)
                                   22
                                                                 No.   2013AP1750



      ¶68    The defendant further contends that the profession or
trade principle applies only in professional malpractice cases,
that is, in situations in which the actor is providing a highly
specialized professional service to the plaintiff that involves
a unique standard of care.         The defendant points out that he was
not providing a service to the plaintiff and that semi-trailer
truck driving is not the kind of highly specialized occupation
normally classified as a profession.
      ¶69    We disagree with the defendant and conclude that both
the   superior     knowledge      rule    and    the   profession      or   trade
principle apply to the defendant.             We review them in turn.
      ¶70    Insofar   as   the   defendant      argues   that   the    superior

knowledge rule does not apply to semi-trailer truck drivers, he
is plainly incorrect.       The skill and knowledge required to drive
a semi-trailer truck are not part of the "ordinary equipment" of
a reasonable person.34       Rather, they are the result of acquired
learning and experience.



     None of the cases the defendant cites are on all fours with
the instant case.    Some do not involve trucks.     Others were
decided before the adoption of the special rules, regulations,
and standards that now govern the licensure of semi-trailer
truck drivers and the operation of semi-trailer trucks.     See,
e.g., Fredericks v. Castora, 360 A.2d 696 (Pa. Super. 1976). In
short, the cases cited by the defendant do not address whether
it was error to give a jury instruction setting forth a standard
of care particular to the defendant as a professional truck
driver operating a semi-trailer truck pursuant to a commercial
driver's license.
      34
           See Restatement (Second) of Torts § 299A, cmt. a (1965).



                                         23
                                                                       No.    2013AP1750



     ¶71     The     defendant      was    required        to,   and   did,       undergo
specialized        testing    and      obtain      a   specialized        license       to
demonstrate that he possesses the special knowledge and skill
necessary     to     safely     operate      a     semi-trailer        truck.          The
defendant's    assertion        that      this    special     knowledge      and   skill
could not be considered by the jury is not cogent.
     ¶72     The     statutes    and      regulations        applicable      to    semi-
trailer     trucks     and    semi-trailer         truck     drivers    bolster        our
conclusion    that     the    superior      knowledge       rule    applies       to   the
defendant.
     ¶73     Semi-trailer       trucks      are    commercial       motor     vehicles.
Under Wis. Stat. § 343.05(2) (2007-08),35 a person can operate a
commercial motor vehicle only if certain conditions are met.
Among other requirements, the person must carry a commercial
driver's license that is not revoked, suspended, canceled, or
expired.36
     ¶74     Federal     regulations         likewise        dictate      that     those
operating     commercial      motor       vehicles     must      generally     carry     a
commercial driver's license.37              Federal regulations also specify
the knowledge and skills drivers must possess in order to obtain


     35
       All subsequent references to the Wisconsin Statutes are
to the 2007-08 version unless otherwise indicated.
     36
        See Wis. Stat. § 343.05(2). An exception is set forth at
Wis.   Stat.   § 343.055,  titled   "Commercial  Driver  License
Waivers."
     37
          See, e.g., 49 C.F.R. § 383.23(a).



                                           24
                                                                      No.       2013AP1750



such licensure.         Three provisions are particularly relevant in
the instant case.
       ¶75    First,    49    C.F.R.    § 383.110    provides       that       to   ensure
safety, commercial motor vehicle drivers are required to have
the    baseline    level       of    knowledge     and    skills     set       forth     in
subsequent provisions.          It states in full as follows:

       All drivers of [commercial motor vehicles] must have
       the knowledge and skills necessary to operate a
       [commercial motor vehicle] safely as contained in this
       subpart.    The specific types of items that a State
       must include in the knowledge and skills tests that it
       administers    to    [commercial   driver's   license]
       applicants are included in this subpart.
       ¶76    Second, 49 C.F.R. § 383.111 sets forth and explains 20
areas in which commercial motor vehicle operators are required

to    have    specified      knowledge    to    obtain    a    commercial        driver's
license.      These areas include safe operations regulations, speed
management, extreme driving conditions, hazard perceptions, and
emergency maneuvers.38
       ¶77    Third,    49    C.F.R.    § 383.113    enumerates       the       skills    a
commercial      motor     vehicle      operator    must   possess         to   obtain    a

commercial driver's license.               These skills include identifying
safety-related vehicle parts, like the engine compartment and
brakes;39      inspecting      and     operating    air       brakes;40    and      safely



       38
            See 49 C.F.R. § 383.111(a).
       39
            See 49 C.F.R. § 383.113(a)(1).
       40
            See 49 C.F.R. § 383.113(a)(2).



                                           25
                                                                                No.     2013AP1750



driving      the    vehicle        by,     for        example,      maintaining         "a     safe
following distance depending on the condition of the road."41
       ¶78    These        state         statutes            and     federal      regulations
demonstrate        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.
       ¶79    We turn to the profession or trade principle, which
was incorporated into the truck driver negligence instruction.
       ¶80    The     Wisconsin          pattern        jury       instructions        discussed
previously demonstrate that the profession or trade principle

applies not merely to highly specialized professionals, as the
defendant         asserts,       but     more     broadly          to   those     engaged        in
occupations that require the exercise of "acquired learning, and
aptitude developed by special training and experience."42
       ¶81    Restatement (Second) of Torts § 299A is also helpful
in    determining         what    constitutes           a    profession     or        trade.      A
comment      to     § 299A       references        a        wide   range   of     occupations
(including plumbers, carpenters, and blacksmiths) to which the
profession or trade principle generally applies.                                 This comment
reinforces our conclusion that the profession or trade principle
has    broader      applicability          than        the    defendant     lets       on.      It


       41
            See 49 C.F.R. § 383.113(c)(6).
       42
            Restatement (Second) of Torts § 299A, cmt. a (1965).



                                                 26
                                                                   No.   2013AP1750



governs an actor in the performance of his or her occupation so
long as reasonably performing that occupation requires acquired
learning     and   aptitude    developed         by     special    training     and
experience.43
     ¶82     Clearly,   driving     a    semi-trailer     truck    constitutes    a
profession    or   trade   within       the   context   of   the   profession    or
trade principle.        It was therefore appropriate for the jury to
evaluate the defendant's conduct by reference to the conduct of
a reasonable semi-trailer truck driver.
     ¶83     For the reasons set forth, we conclude that the truck
driver negligence instruction did not misstate the law.
     ¶84     A circuit court can err in instructing the jury not

only by misstating the law but also by stating the law in a
manner likely to mislead the jury.              Accordingly, we now turn to
the possibility (discussed by the court of appeals) that the
jury misinterpreted the truck driver negligence instruction.
                                          C




     43
       See Restatement (Second) of Torts § 299A, Comment b, at
73 (1965):

     This   Section . . . applies     to   any    person   who
     undertakes to render services to another in the
     practice of a profession, such as that of physician or
     surgeon,   dentist,    pharmacist,   oculist,   attorney,
     accountant, or engineer.       It applies also to any
     person who undertakes to render services to others in
     the practice of a skilled trade, such as that of
     airplane   pilot,   precision   machinist,   electrician,
     carpenter, blacksmith, or plumber.



                                         27
                                                                      No.     2013AP1750



        ¶85       The defendant's basic contention is that even if the
truck driver negligence instruction did not technically misstate
the law, it likely misled the jury and was therefore prejudicial
error.
        ¶86       The defendant argues that the truck driver negligence
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]."44                 The defendant points out that
within the same negligence instruction, the circuit court set
forth the standard of ordinary care applicable to the plaintiff.
The implication, says the defendant, was that the jury should
apply a heightened standard of care to the defendant.

        ¶87       We   disagree   with    the    defendant.     The   truck     driver
negligence instruction was not a stand-alone instruction.                             It
was part of lengthy set of negligence instructions given by the
circuit court.            We do not evaluate the truck driver negligence
instruction in isolation.                We review the jury instructions as a
whole        to   determine   whether     they    fully   and   fairly      convey   the
applicable rules of law to the jury.45
        44
       One commentator has acknowledged that it is difficult to
instruct a jury in a way that maintains the distinction between
considering an actor's special knowledge and skill as a relevant
circumstance and holding the actor to a heightened standard of
care. Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 12, Reporter's Note to cmt. a., at 145 (2010).
Nevertheless, a jury can take an actor's special knowledge or
skill into account without transforming the standard of care
being applied.
        45
       Weborg, 341 Wis. 2d 668, ¶74 ("Jury instructions                              are
evaluated in their entirety, not in isolation.").


                                            28
                                                                     No.   2013AP1750



      ¶88   Relevant here are several paragraphs of the negligence
instructions    in     which   the   circuit      court    (1)    introduced     the
special     verdict     questions      pertaining         to     negligence;     (2)
introduced the concepts of negligence and of ordinary care; (3)
provided    specific    instruction     regarding      the     standard    of   care
applicable to the defendant as a semi-trailer truck driver; and
(4)   elaborated      upon     the   standard     of      ordinary     care,    with
particular attention to highway driving.46
      ¶89   These     paragraphs      of    the     negligence        instructions
provided as follows:

      Question number 1 and question number 3 of the verdict
      asked whether or not [the defendant] and [the
      plaintiff] were or were not negligent.           These
      questions read as follows, question number 1, was [the
      defendant] negligent in the operation of his vehicle
      immediately before or during the accident, yes or no.
      Question number 3, was [the plaintiff] negligent in
      the operation of his automobile immediately before or
      during the accident, yes or no.    I will now instruct
      you of the definition of negligence and the various
      rules and safety statutes you must apply to determine
      whether or not either [the defendant] or [the
      plaintiff] or both were negligent in this case.

      A person is negligent when they fail to exercise
      ordinary care.    Ordinary care is the care which a
      reasonable person would use in similar circumstances.
      A person not using ordinary care is negligent, if the
      person without intending to do harm does something or
      fails to do something that a reasonable person would
      recognize as creating an unreasonable risk of injury

      46
       These are the first four paragraphs of a ten-paragraph
set of negligence instructions.    The following five paragraphs
cover particular facets of the standard of ordinary care as it
applies to individuals driving on a highway.       The tenth and
final paragraph explains the concept of comparative negligence.



                                       29
                                             No.   2013AP1750


or damage to a person or property. At the time of the
accident, [the defendant] 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.

Every person in all situations has a duty to exercise
ordinary care for his or her own safety.     This does
not mean that a person is required at all hazards to
avoid injury.     A person must, however, exercise
ordinary care to take precautions to avoid injury to
himself or herself.   A person must exercise ordinary
care to employ his sense of sight and hearing so as to
become aware of the existence of danger to him or her.
A failure to do so is negligence.   It is the duty of
every person to exercise ordinary care, and to
recognize and appreciate all dangers that are open and
obvious to him, or which [would] have been recognized
and appreciated by a reasonable, prudent person under
the same or similar circumstances. That the warning
of the existence of danger was not seen or was not
heard does not free one from negligence. In addition,
one who looks and fails to see or listens and fails to
hear a warning of danger, which under like or similar
circumstances would have been seen or would have been
heard by a reasonable, prudent person is as guilty of
negligence as one who did not look or listen at all.
However, a person is not bound to see every hazard or
danger in his or her pathway even though they should
be plainly observable or to remember the existence of
every condition of which a person has had knowledge.
A person is only required to act as a reasonable,
prudent person would act under the same or similar
circumstances.

To be free of negligence, a person must exercise
ordinary care in choosing his or her course of conduct

                          30
                                                                     No.     2013AP1750


       in the pursuit of that choice. A person is not guilty
       of negligence in making the choice of conduct if the
       person has no knowledge that one course of conduct
       carries a greater hazard than another provided that
       such lack of knowledge is not the result of a person's
       failure to exercise ordinary care. Every user of the
       highway has the right to assume that every other user
       of the highway will obey the rules of the road.
       However, a person cannot continue to make that
       assumption if the person becomes aware or in the
       exercise of ordinary care, ought to be aware that
       another user of the highway by his or her conduct is
       creating   a   dangerous   situation.     Under   such
       circumstances, a person using the highway must use
       ordinary care to avoid the danger. A driver must use
       ordinary care to keep a careful look out ahead and
       about him or her for the presence of vehicles,
       movement, objects or pedestrians, or may be within
       approaching the driver's course of travel.          In
       addition, the driver has to use ordinary care to look
       out to the condition of the highway ahead, for traffic
       signs, markers, obstructions to vision, and other
       things that might warn of possible danger.         The
       failure to use ordinary care to keep a careful look
       out is negligence.
       ¶90   The     defendant's     contention     that    the      truck        driver
negligence instruction likely misled the jury is untenable in
light of the numerous statements, made throughout the portion of
the negligence instructions set forth above, that the standard
of ordinary care applies to all drivers.
       ¶91   Particularly       relevant   here    are   the   portions       of     the
jury     instructions        immediately       preceding       and     immediately
following the truck driver negligence instruction.
       ¶92   Right     before    giving      the   truck    driver         negligence
instruction,       the     circuit   court     instructed       the        jury     that
negligence    is     the   failure    to   exercise      ordinary     care.          The
circuit court did not limit this statement to the plaintiff in


                                        31
                                                                   No.    2013AP1750



any way; it stated the standard of ordinary care in general
terms, as applied to everyone.
     ¶93   The     circuit     court's     exact    words,   taken       from   the
pattern jury instruction on negligence, were as follows:

     A person is negligent when they fail to exercise
     ordinary care.    Ordinary care is the care which a
     reasonable person would use in similar circumstances.
     A person not using ordinary care is negligent, if the
     person without intending to do harm does something or
     fails to do something that a reasonable person would
     recognize as creating an unreasonable risk of injury
     or damage to a person or property.
     ¶94   Right       after   giving      the     truck   driver        negligence

instruction,     the    circuit    court      reiterated     the    standard     of
ordinary care and then elaborated upon the concept of negligence
in the context of highway driving.
     ¶95   The circuit court stated as follows:

     It is the duty of every person to exercise ordinary
     care, and to recognize and appreciate all dangers that
     are open and obvious to him, or which [would] have
     been recognized and appreciated by a reasonable,
     prudent    person    under  the   same    or   similar
     circumstances. . . .

           . . . .

     Every user of the highway has the right to assume that
     every other user of the highway will obey the rules of
     the road.    However, a person cannot continue to make
     that assumption if the person becomes aware or in the
     exercise of ordinary care, ought to be aware that
     another user of the highway by his or her conduct is
     creating   a    dangerous  situation.      Under  such
     circumstances, a person using the highway must use
     ordinary care to avoid the danger.
(Emphasis added.)



                                         32
                                                                      No.    2013AP1750



      ¶96   Read    as    a   whole,    the      message   conveyed    by   the    jury
instructions was clear:            The standard of ordinary care applies
to both the plaintiff and the defendant.                    Ordinary care is the
care a reasonable person would exercise under the circumstances.
In    the   instant        case,      the     circumstances       relevant        to     a
determination of whether the defendant acted reasonably include
the fact that at the time of the collision, the defendant was
engaged in a profession or trade (semi-trailer truck driving)
and possessed the special knowledge and skill required of semi-
trailer truck drivers.
      ¶97   Could    the      truck    driver      negligence    instruction       have
been more clearly worded?             Perhaps.      But perfection is not what

the law requires.          An appellate court need decide only whether
"the overall meaning communicated by the instruction . . . was a
correct statement of the law[] . . . ."47                   In the instant case,
the   overall      meaning      communicated        by     the   totality     of       the
negligence instructions was a correct statement of the law and
was not misleading.
      ¶98   In sum, we conclude that the circuit court did not err
in giving the truck driver negligence instruction.                          The truck
driver negligence instruction did not misstate the law and was
not misleading.          The defendant's arguments to the contrary are




      47
       White v. Leeder, 149 Wis. 2d 948, 954-55, 440 N.W.2d 557
(1989). See also Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112,
¶50, 246 Wis. 2d 132, 629 N.W.2d 301.



                                            33
                                                                No.     2013AP1750



not   persuasive,   and   the    defendant      is   not   entitled    to   a   new
trial.
      By   the   Court.—The     decision   of    the   court   of     appeals   is
affirmed.




                                      34
                                                                     No.   2013AP1750.pdr


        ¶99    PATIENCE       DRAKE    ROGGENSACK,        C.J.   (concurring).       The
central issue presented is whether the circuit court erred by
giving the jury a special skills instruction because Dale L.
Cavallino held a commercial license to operate the semi-truck at
the time of the accident.1                  I conclude that the circuit court's
special skills instruction was erroneous because it incorrectly
stated the law.           However, I also conclude that the error was
harmless.         Accordingly, I would affirm the court of appeals, and
although      I    do   not   join     the    majority    opinion,    I    respectfully

concur.
                                      I.     BACKGROUND
        ¶100 The majority opinion fully sets out the facts that
underlie the dispute before us.                    Therefore, I will not repeat
them.
                                      II.    DISCUSSION
                               A.     Standard of Review
        ¶101 Challenges to jury instructions present questions of

law for our independent review.                    State v. Beamon, 2013 WI 47,
¶18, 347 Wis. 2d 559, 830 N.W.2d 681.                       Whether an erroneously
given instruction is harmless error also presents a question of
law that we review independently.                  State v. Nelson, 2014 WI 70,
¶18, 355 Wis. 2d 722, 849 N.W.2d 317.




        1
            Majority op., ¶3.


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                          B.   Jury Instructions
     ¶102 The    defendant,     Cavallino,2    argues   that   the   special
skills instruction was erroneous because it directed the jury to
consider Cavallino's superior knowledge and skill as a licensed
semi-truck driver.        According to Cavallino, the circuit court
erred because the court gave an instruction regarding superior
knowledge and skill similar to that employed in professional
negligence      cases,   rather     than      the   standard    negligence
instruction that is customarily given in vehicular negligence

cases.     Cavallino argues that the circuit court's instruction
imposed a heightened standard of care on him, and that doing so
was prejudicial error entitling him to a new trial.
     ¶103 The plaintiff, Ronald J. Dakter,3 contends that the

instruction directed the jury to take superior knowledge and
skill of professional semi-truck drivers into account so that
the jury could determine whether Cavallino met the standard of
ordinary care under the circumstances.

                1.   General principles for instructions
     ¶104 "The purpose of a jury instruction is to fully and
fairly inform the jury of a rule or principle of law applicable
to a particular case."         Nommensen v. Am. Cont'l Ins. Co., 2001
WI 112, ¶36, 246 Wis. 2d 132, 629 N.W.2d 301.           Jury instructions


     2
       Cavallino's employer, Hillsboro Transportation Company,
LLC, and Michigan Millers Mutual Insurance Company, Hillsboro's
insurance provider, are also defendants.   Their positions are
consistent with Cavallino's.
     3
         Kathleen M. Dakter, Ronald's wife, is also a plaintiff.


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"explain      what       the    law   means    to       persons        who    usually       do     not
possess       law    degrees."          Id.        (internal         quotation           marks    and
citation omitted).
       ¶105 "A circuit court has broad discretion when instructing
a jury."        Id., ¶50 (citing White v. Leeder, 149 Wis. 2d 948,
954,   440     N.W.2d      557    (1989)).          A    circuit          court    appropriately
exercises its discretion when the instruction correctly states
the law and comports with the facts of the case.                                         Weborg v.
Jenny, 2012 WI 67, ¶42, 341 Wis. 2d 668, 816 N.W.2d 191; White,

149    Wis. 2d      at    954-55.       However,          even       if    the    circuit        court
erroneously         exercises         its     discretion,             an     "erroneous           jury
instruction warrants reversal and a new trial only if the error
was prejudicial."              Kochanski v. Speedway SuperAmerica, LLC, 2014
WI 72, ¶11, 356 Wis. 2d 1, 850 N.W.2d 160 (quoting Fischer v.
Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992)).                                      "An error
is prejudicial when it probably misled the jury."                                  Id.     In other
words,    a    jury       instruction        error       "is     not       prejudicial       if     it

appears that the result would not be different had the error not
occurred."          Id.    (quoting         Lutz    v.    Shelby          Mut.    Ins.     Co.,     70
Wis. 2d 743, 751, 235 N.W.2d 426 (1975)).
                          2.     Special skills instruction
       ¶106 There         are    professions        and    trades          for    which     special
skills are necessary to performance of the profession or trade.
See Racine Cnty. v. Oracular Milwaukee, Inc., 2009 WI App 58,
¶28, 317 Wis. 2d 790, 767 N.W.2d 280 (parsing whether computer
software       installers        were       subject       to     a     higher       professional
standard of care based on special skills).                                 When those special

                                               3
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skills         are        required     but     not        competently     performed,         the
"[p]rofessionals may be sued for malpractice because [of] the
higher standards for care imposed on them by their profession."
Id. (internal quotation marks and citation omitted).                                 Further,
when       a   higher       standard    of     care       is   imposed   on   members    of    a
profession           or    trade,     expert     witness         testimony      generally     is
required to prove that those standards were not met.                              Id., ¶34.
                                 3.    Instructions given
       ¶107 The circuit court gave a special skills instruction

based on Cavallino being licensed as a semi-truck driver.                                   That
instruction stated in pertinent part:4

            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 Dale
       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, 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 this standard is
       negligent.
       ¶108 Immediately                prior         to        the   semi-truck         driver
instruction, the jury received instruction on the standard of
ordinary care:5

            A person is negligent when he fails to exercise
       ordinary care.    Ordinary care is the care which a
       reasonable person would use in similar circumstances.

       4
           Labelled "New #3 Negligence:                    Semi Truck Driver."
       5
           Labelled "1005 Negligence:                 Defined."


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                                                             No.   2013AP1750.pdr

     A person is not using ordinary care and is negligent,
     if the person, without intending to do harm, does
     something or fails to do something that a reasonable
     person would recognize as creating an unreasonable
     risk of injury or damage to a person or property.
     ¶109 In   regard    to   these   two      instructions,   the    court   of
appeals melded them together and explained how it concluded that
Cavallino's superior knowledge and skill fit into the standard
of ordinary care:

           Putting together the general standard of care
     with its application to the circumstances in which an
     actor    possesses  pertinent  superior  knowledge   or
     skills:    (1) all have a duty to use ordinary care to
     avoid acts that a reasonable person would recognize
     create unreasonable risks of injury or damage to
     others or property, and (2) a "reasonable person will
     act in the light of (a) knowledge shared by the
     community    generally   and  also   (b)   information,
     knowledge and skill that he himself has that is not
     generally known and that reasonable people would not
     ordinarily have." Dan B. Dobbs et al., The Law of
     Torts § 132 (2d ed. 2014).
Dakter v. Cavallino, 2014 WI App 112, ¶40, 358 Wis. 2d 434, 856
N.W.2d 523.
     ¶110 The parties agree that it would have been improper for
the circuit court to have instructed the jury that Cavallino is
held to a higher standard of care than other drivers on the

highway because he was a professional semi-truck driver.6                Dakter
acknowledges   that     the   standard    of    care   for   all   drivers    is
ordinary care.
     ¶111 However, the wording of the special skills instruction
for semi-truck drivers implies that there is a semi-truck driver

     6
       Respondent's Brief at 22:               "We agree; the standard is
always 'ordinary care.'"


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standard of care and that Cavallino was obligated to conform his
conduct to that standard of care, which differs from ordinary
care.     That implication permitted the jury to hold Cavallino to
a different standard of care than the standard of care that the
jury applied to Dakter.
        ¶112 Specifically,           the     instruction          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."                   This is an incorrect statement of

the law.         It establishes a semi-truck driver standard of care
that    required       Cavallino        to   use     skills       in   addition          to     those
required    of     Dakter       while      both     were    using      a    public           highway.
Accordingly,       the       circuit    court       erred    by    giving        the     jury      the
special     skills       instruction         that     was       focused      on        the     skills
required of a commercial driver of a semi-truck.
        ¶113 I    also       conclude      that     the    circuit       court         erroneously
exercised        its     discretion          in      giving        the      special            skills

instruction because the application of the superior knowledge
and skills doctrine is limited to persons taking actions in a
venue where special skills are required by that venue.                                             For
example, when one takes action in a venue where special skills
are     required,        e.g.,       physicians,           lawyers,        pharmacists             and
dentists,        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.
Stated otherwise, in cases where special skills are relevant,

                                                6
                                                                     No.   2013AP1750.pdr


the duty is defined by standards applicable to the particular
profession      of    the    alleged          tortfeasor.      Zastrow      v.    Journal
Commc'ns,     Inc.,     2005      WI    App    178,   ¶25,   286    Wis. 2d      416,    703
N.W.2d 673.
      ¶114 In contrast to those who work in exclusive venues that
require     special      skills        in     order   to     work   in     that    venue,
professional and lay vehicle operators employ the same venue,
i.e., they share the same roadways.                    In addition, a driver with
a license permitting him or her to drive a semi-truck7 could also

drive a large truck, a pickup truck or a car.                        A driver with a
commercial license could be a professional semi-truck driver, or
he or she may drive a semi-truck only rarely.                        Alternatively, a
driver holding a class D (regular) driver's license8 may operate

any number of large and cumbersome vehicles, including large
moving trucks or trucks with large trailers.                          Because all of
these vehicle operators act in the same venue, i.e., the shared
roadway, they are subject to the same ordinary care.                              Ordinary

care is that care exercised by a reasonable person under the
circumstances.        See Hoida, Inc. v. M&I Midstate Bank, 2006 WI
69, ¶¶30-32, 291 Wis. 2d 283, 717 N.W.2d 17.                        The circumstances
of   ordinary    care       are   not    modified      according     to    the    type    of
vehicle operator, but rather, uniformly reflect the nature of
the shared venue, a public roadway.                    See State Dep't of Transp.
v. Robbins, 246 P.3d 864, 867 (Wyo. 2011) (citing Cervelli v.


      7
          Wis. Stat. § 343.03(3)(b).
      8
          Wis. Stat. § 343.03(3)(a).


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                                                                       No.    2013AP1750.pdr


Graves, 661 P.2d 1032, 1038-39 (Wyo. 1983) (affirming the trial
court's     refusal     to      give    a     jury        instruction       that    set   an
individualized      standard       of   care        for    a    semi-truck     driver     and
reasoning    that     to     do   so    would        be    to    convert      an   ordinary
negligence case into a semi-truck driver's malpractice action)).
       ¶115 Even though I conclude that the circuit court erred in
giving     the    semi-truck        driver          negligence        instruction,        the
instruction was not prejudicial and therefore was harmless.                                As
the court of appeals noted, the erroneous instructions may have

subjected Cavallino to a higher standard of care than that to
which he would have been held if he lacked superior knowledge or
skills.     Dakter, 358 Wis. 2d 434, ¶47.                       However, I also agree

that jurors likely focused on the evidence presented at trial.
Id.       Therefore,       if     jurors      were        presented         with   accurate
statements of the standard of ordinary care, they would have
been as likely to reach the same conclusion.
       ¶116 Furthermore,          "[j]ury      instructions          are     evaluated     in

their entirety, not in isolation."                        Weborg, 341 Wis. 2d 668,
¶74.     The erroneous semi-truck driver instruction was surrounded
by correct instructions that repeatedly reminded the jury of the
standard of ordinary care.
       ¶117 In addition, the jury's apportionment of negligence is
substantially       supported      by   the       facts        and   does    not   indicate
prejudice.       Trial testimony supports the jury's verdict.                             For
example,    under     hypothetical          facts    matching        Dakter's      testimony
regarding the accident that gives rise to this case, Cavallino's
own expert stated that if the hypothetical facts were true, the

                                              8
                                                                              No.    2013AP1750.pdr


driving was "reckless" and Cavallino's own employer stated that
such driving would be "unsafe."                            These facts in combination
with    the    multiple       instructions            on   ordinary      care       cause    me    to
conclude       that     there       is   no   reasonable           probability           that     the
circuit        court's       error       in       giving         the     semi-truck          driver
instruction          contributed         to       the       outcome          of     the     trial.
Accordingly,         the     jury    instruction           error       was    not       prejudicial
because the jury's verdict likely would have been the same had
the    error    in     instructions         not       occurred.         See       Kochanski,      356

Wis. 2d 1, ¶11.
                                     III.     CONCLUSION
       ¶118 I      conclude     that      the      circuit        court's         special    skills
instruction was erroneous because it incorrectly stated the law.
However,       I      also    conclude        that         the     error          was    harmless.
Accordingly, I would affirm the court of appeals, and although I
do not join the majority opinion, I respectfully concur.




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                                                                 No.   2013AP1750.akz


       ¶119 ANNETTE KINGSLAND ZIEGLER, J.               (concurring).         I join
the   majority       opinion's    conclusion    that    the    semi-truck     driver
jury instruction at issue was not erroneous under the facts of
this case.          I also join Chief Justice Roggensack's conclusion
that, if this jury instruction were erroneous, the error was
harmless.         I write separately to clarify two points.
       ¶120 First, I write to clarify that the semi-truck driver
jury instruction at issue was proper because the defendant was
driving a semi-truck at the time of the accident.                      See majority

op., ¶96 ("In the instant case, the circumstances relevant to a
determination of whether the defendant acted reasonably include
the fact that at the time of the collision, the defendant was
engaged in a profession or trade (semi-trailer truck driving)
and possessed the special knowledge and skill required of semi-
trailer truck drivers." (emphasis added)).                     Had the defendant
been driving a passenger automobile rather than a semi-truck at
the time of the accident, the semi-truck driver jury instruction

would have been erroneous, notwithstanding the fact that the
defendant is a professional semi-truck driver.
       ¶121 Second, I write to clarify that certain treatises that
the majority opinion cites are overly broad and do not dictate
the law in Wisconsin.             See, e.g., majority op., ¶48 ("[I]f a
person       in    fact   has   knowledge,    skill,    or     even    intelligence
superior to that of the ordinary person, the law will demand of
that person conduct consistent with it." (quoting W. Page Keeton
et    al.,    Prosser     and   Keaton   on   Torts    § 32,   at     185   (5th   ed.
2000))); id. ("In addition to the knowledge that may be imputed

                                          1
                                                                       No.      2013AP1750.akz


to a reasonable person, a person's actual knowledge and skills
may    be    taken       into   account     when     the    level     of     the    person's
knowledge or skills exceeds the average." (quoting 1 J.D. Lee &
Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 3:21
(2d ed. 1990))); id., ¶43 n.16 ("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."           (quoting    Restatement          (Second)    of     Torts     § 289
cmt.    m.       (1965))).      These      passages      should     not    be    improperly
construed as an expansion of Wisconsin law.                         See majority op.,

¶49 ("These texts neither bind this court nor declare the law of
Wisconsin.").            Instead, I write to clarify that the majority
opinion cites these treatises for the sole and limited purpose
that, under the facts of this case, the semi-truck driver jury

instruction was proper because the defendant was driving a semi-
truck       at    the    time   of   the    accident.         The     majority       opinion
expressly recognizes that these broad treatise passages do not
"declare the law of Wisconsin."                  Majority op., ¶49.
        ¶122 For the foregoing reasons, I respectfully concur.
        ¶123 I      am    authorized       to   state     that    Justice       MICHAEL    J.
GABLEMAN joins this concurrence.




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