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Keywords

attorneynegligenceappealtrialtestimonymalpracticeforeclosure
plaintiffdefendantdamagesattorneylawyernegligenceliabilityappealtrialtestimonymotionmalpracticewillsustainedduty of carerespondentappellantmotion to dismissmarine insurance

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Olfe v. Gordon, 93 Wis.2d 173, 286 N.W.2d 573

Facts

Frieda Olfe, a widow, sought legal representation from attorney Robert N. Gordon for the sale of her property to Elmer J. Demman. Olfe specifically instructed Gordon to secure a first mortgage on the property. However, during the closing, she discovered that she had only a second mortgage, leading to a foreclosure. Olfe alleged that Gordon was negligent in failing to draft the necessary documents to secure her interests as instructed.

This is an appeal by plaintiff-appellant Frieda Olfe (Olfe) from a judgment entered after the trial court granted the motion by defendants-respondents Attorney Robert N. Gordon (Gordon) and St. Paul Fire & Marine Insurance Company to dismiss on the ground of insufficiency of the evidence, pursuant to sec. 805.14(3), Stats. The action is based on a claim of negligence on the part of Gordon in a transaction involving the sale of land by Olfe, then Gordon's client.

Issue

1) Is expert testimony required to establish the standard of care on the part of an attorney in a malpractice action? 2) Does the record contain sufficient credible evidence to warrant sending the case to the jury?

Olfe's appeal presents two issues: (1) Is expert testimony required to establish the standard of care on the part of an attorney in a malpractice action; and if so, is such testimony required to establish negligence on the part of Gordon? (2) Does the record contain sufficient credible evidence, when taken in the light most favorable to Olfe, to warrant sending the case to the jury?

Rule

Expert testimony is generally required to establish the standard of care applicable to an attorney whose conduct is alleged to have been negligent, except in cases where the conduct can be evaluated adequately by a jury without such testimony.

This court stated the rule on a lawyer's liability in Gustavson v. O'Brien, 87 Wis.2d 193, 199, 274 N.W.2d 627, 630 (1979): “ ‘. . . ”an attorney must be held to undertake to use a reasonable degree of care and skill, and to possess to a reasonable extent the knowledge requisite to a proper performance of the duties of his profession, and, if injury results to the client as a proximate consequence of the lack of such knowledge or skill, or from the failure to exercise it, the client may recover damages to the extent of the injury sustained; . . .“ ‘ ”

Analysis

The court analyzed whether Gordon's actions fell within the exception to the rule requiring expert testimony. It concluded that Olfe's allegations regarding Gordon's failure to follow her explicit instructions did not require expert testimony, as these matters were within the common knowledge of a layperson. The court emphasized that a jury could understand the standards of care owed by an agent to a principal without needing expert input.

Thus expert testimony is not required to establish a standard of care in cases involving conduct not necessarily related to legal expertise where the matters to be proven do not involve “special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind, and which require special learning, study, or experience.” Cramer v. Theda Clark Memorial Hospital, supra at 150, 172 N.W.2d at 428. Nor is expert testimony required “(w)here no issue is raised as to defendant's responsibility . . ., where the negligence of defendant is apparent and undisputed, and where the record discloses obvious and explicit carelessness in defendant's failure to meet the duty of care owed by him to plaintiff, (for) the court will not require expert testimony to define further that which is already abundantly clear.” House v. Maddox, 46 Ill.App.3d 68, 73, 4 Ill.Dec. 644, 648, 360 N.E.2d 580, 584 (1977).

Conclusion

The Supreme Court reversed the trial court's dismissal and remanded the case for a new trial, allowing the jury to consider the evidence of negligence.

Judgment reversed and cause remanded for a new trial.

Who won?

Frieda Olfe prevailed in the appeal because the Supreme Court found that the trial court erred in dismissing her case without allowing a jury to consider the evidence of negligence.

In granting Gordon's motion to dismiss, the trial court noted that, when Olfe asked if the offer to purchase referred to a second mortgage, she was told it was “second only to cost of construction.” Following that comment, she signed the offer to purchase.

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