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Strait v. Crary - 173 Wis. 2d 377, 496 N.W.2d 634 (Ct. App. 1992)


A trial court has wide discretion in accepting or rejecting requested jury instructions. But the court must instruct the jury with due regard to the facts of the case, and thus it is error for the trial court to refuse to instruct on an issue which is raised by the evidence. 


In May 1987, when Strait was 16 years old, he and several other teenagers went riding in Crary's pickup truck. Crary purchased beer and other intoxicants for the young people, and they soon became quite intoxicated. Crary, who was not drinking himself and remained sober throughout the evening, continued to drive the group through the countryside as they continued their drinking. At some point in the evening, while Crary was driving down a country road (within the speed limit), Strait, who was sitting in the front seat, attempted to climb out of the passenger window and join the others in the box of the truck. He fell in the attempt and the truck ran over his leg, breaking it. Crary stopped the truck and, rather than call the police or an ambulance, decided to pick Strait up, place him back in the truck and drive him to the hospital causing Strait additional pain and discomfort. Strait and his parents sued Crary, claiming that he was negligent in the manner in which he operated his truck under the circumstances of the case. The trial court refused to instruct the jury on the "special" standard of care applicable to children. The trial court denied the Strait's post-verdict motions for a new trial and dismissed the action. Strait appealed.


Should the motion for new trial be granted?




The appellate court reversed the judgment of the trial court dismissing the minor's case and remanded the case with direction for a new trial on the issue of liability. The court held that the trial court should have accepted the minor's request to use a separate standard of care for children and instructed the jury that it must consider that special standard in comparing the parties' negligence. The trial court also erred in applying the exception to the standard of care for a child that existed if the child was participating in an adult-type activity. The court held that it was probable that the jury was misled by the trial court's instruction and that the result of the jurors' assessment and comparison of the parties' negligence might have been different if they had been properly instructed.

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