State v. Turk, 453 N.W.2d 163 (Wis. Ct. App. 1990). · Go Syfert
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State v. Turk, 453 N.W.2d 163 (Wis. Ct. App. 1990). Cases Citing This Book View Copy Cite
23 citation events (11 in the last 25 years) across 7 distinct courts.
Strongest positive: State v. Johnson (wisctapp, 2019-02-12)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Johnson
Wis. Ct. App. · 2019 · confidence medium
We upheld the circuit court's decision, concluding that the passengers' failure to wear seatbelts was not a "new and independent force" breaking "the causal connection between the original act ... and the injury, and itself becomes the direct and immediate cause of the injury." See id. at 296 (citation omitted). ¶10 Here, R.M.'s failure to wear a seatbelt was not a "new and independent" force breaking the causal connection between Johnson's driving and R.M.'s injury.
discussed Cited as authority (rule) Allen v. State
Wyo. · 2002 · confidence medium
See generally Panther v. State, 780 P.2d 386, 394-95 (Alaska App.1989); State v. Stewart, 60 Conn.App. 301 , 759 A.2d 142, 147-49 , cert. granted on other grounds, 255 Conn. 913 , 763 A.2d 1039 (2000), cert. denied, 258 Conn. 909 , 782 A.2d 1250 (2001); State v. Hubka, 480 N.W.2d 867, 870-71 (Iowa 1992); State v. Myers, 88 N.M. 16 , 536 P.2d 280, 286 (1975); State v. Dodge, 152 Vt. 503 , 567 A.2d 1143, 1144 (1989); State v. Nester, 175 W.Va. 539 , 336 S.E.2d 187, 189 (1985); and State v. Turk, 154 Wis.2d 294 , 453 N.W.2d 163, 164-65 (1990).
discussed Cited as authority (rule) State v. Lohmeier
Wis. Ct. App. · 1995 · confidence medium
An "intervening cause" has been defined as "a new and independent force which breaks the causal connection between the original act or omission and the injury, and itself becomes the direct and immediate cause of the injury." State v. Turk, 154 Wis. 2d 294, 296 , 453 N.W.2d 163, 164-65 (Ct. App. 1990) (quoted source omitted).
discussed Cited as authority (rule) State v. Freeland
Ariz. Ct. App. · 1993 · confidence medium
See State v. Dodge, 152 Vt. 503 , 567 A.2d 1143, 1144 (1989) (victim’s failure to wear seat belt not superseding cause for purposes of prosecution in negligent operation of motor vehicle); State v. Nester, 175 W.Va. 539, 541-42 , 336 S.E.2d 187, 189 (1985) (victim’s nonuse of seat belt not superseding cause of death to reduce liability in DUI case); State v. Turk, 154 Wis.2d 294 , 453 N.W.2d 163, 164 (Ct.App.1990) (victim’s failure to wear seat belt not superseding cause in DUI case where victim suffered great bodily harm); Panther v. State, 780 P.2d 386, 395 (Alaska Ct.App.1989) (failur…
examined Cited "see" State v. Lohmeier (4×)
Wis. · 1996 · signal: see · confidence high
See State v. Turk, 154 Wis. 2d 294 , 453 N.W.2d 163 (Ct. App. 1990). [10] During the criminal code revision process of the 1950's, the Wisconsin Legislative Council drafted 1953 Assembly Bill No. 100.
Retrieving the full opinion text from the archive…
STATE of Wisconsin, Plaintiff-Respondent,
v.
Timmy A. TURK, Defendant-Appellant
89-0886-CR.
Court of Appeals of Wisconsin.
Jan 4, 1990.
453 N.W.2d 163
For the plaintiff-respondent the cause was submitted on the briefs of James H. Connors, of Madison., For the defendant-appellant the cause was submitted on the brief of Donald J. Hanaway, attorney general, and Paul Lundsten, assistant attorney general.
Eich, Gartzke, Sundby.
Cited by 10 opinions  |  Published
GARTZKE, P.J.

Timmy Turk appeals from a judgment of conviction for causing great bodily harm to another human being by the operation of a motor vehicle[*295] while under the influence of an intoxicant, sec. 940.25(1)(a), Stats. The issue is whether the trial court should have admitted expert testimony regarding the victims' failures to wear seat belts. Section 940.25(2) provides in part: "The actor has a defense if it appears by a preponderance of the evidence that the great bodily harm would have occurred even if the actor had not been under the influence of an intoxicant." The trial court held that the testimony was irrelevant to the defense codified in sec. 940.25(2). We agree and affirm.

Turk's car was equipped with seat belts. He had three passengers, none of whom wore a belt. His car entered a curve, left the road, and hit a utility pole. As a result of the collision, one passenger suffered a broken neck, the second sustained severe brain damage and facial fractures, and the third had minor injuries. The trial court refused to hear expert testimony that the injuries to the first two passengers would not have occurred had they worn seat belts.

Turk argues that the trial court erroneously construed sec. 940.25(2), Stats. An evidentiary ruling based on an error of law is an abuse of discretion. State v. City of La Crosse, 120 Wis. 2d 263, 268, 354 N.W.2d 738, 740 (Ct. App. 1984). According to Turk, the trial court assumed that to establish a defense under sec. 940.25(2), a defendant must show that the "accident" would have happened even if the defendant had not been intoxicated. Turk misreads the record. While at one point the court used the word "accident," the court said that the question was: "Would the injury still have happened anyway? ”

We cannot fault the trial court's construction of sec. 940.25(2), Stats., since it was based upon State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985), habeas corpus dismissed sub nom. Caibaiosai v. Barring- [*296] ton, 643 F. Supp. 1007 (W.D. Wis. 1986). Caibaiosai dealt with sec. 940.09(2), which provides an affirmative defense almost identical to that in sec. 940.25(2) for a defendant charged with causing the death of another through the operation of a motor vehicle while under the influence of an intoxicant. The Caibaiosai court ruled that the defense exists if an intervening cause occurs between the intoxicated operation of the automobile and the death. 122 Wis. 2d at 596, 363 N.W.2d at 578. In State v. Loomer, 153 Wis. 2d 645, at 650, 451 N.W.2d 470 ,472 (Ct. App. 1989), we said that sec. 940.25(2) also "provides a defense for the situation where there is a claimed intervening cause between the intoxicated operation and the injury," citing Caibaiosai.

We reject Turk's contention that his passengers' failure to wear seat belts intervened between his intoxicated operation of his car and their injuries. We adopt the reasoning in State v. Nester, 336 S.E.2d 187, 189 (W. Va. 1985):

The appellant also contends that the victim's failure to wear his seatbelt was an independent, intervening cause of the victim's death. This contention seriously distorts the definition of an intervening cause. An intervening cause is a new and independent force which breaks the causal connection between the original act or omission and the injury, and itself becomes the direct and immediate cause of the injury. [Citation omitted.] The fact that the victim did not take precautionary steps which may have prevented his eventual demise is not an intervening cause. [2]

[*297] The trial court properly excluded the proposed expert testimony.

By the Court. — Judgment affirmed.

2

To say otherwise could absolve a murderer if it could be shown the victim was not wearing a bullet-proof vest.