FLYING HIGH AND FALLING HARD: HOW THE WISCONSIN SUPREME COURT’S DECISION IN NOFFKE v. BAKKE SHEDS NEW LIGHT ON THE APPLICATION OF A HEIGHTENED NEGLIGENCE STANDARD BETWEEN CO-PARITICPANTS IN A RECREATIONAL ACTIVITY

Richard L. Campbell, Villanova Law School

Abstract

This note examines the Wisconsin supreme court’s recent holding in Noffke v. Bakke. The Noffke court overruled the appellate court’s finding that co-participants engaged in cheerleading were subject to an ordinary negligence standard, finding instead that a statutorily imposed recklessness standard applied. In doing so, the Noffke court raised a number of important and interesting questions concerning the nature and current state of cheerleading – an activity that has evolved tremendously over the past two decades. The rapid evolution of cheerleading, and the difficulty in characterizing it as an activity or sport, competitive or non-competitive, contact or non-contact, has the potential to place courts evaluating negligence actions between co-participants in a judicial quagmire. The Noffke court applied a rigid test based on the relevant statutory language, however, the court failed to provide a flexible test capable of consistent, equitable application by lower courts. This note examines the rich doctrinal background underlying co-participant liability, and formulates a workable test that is capable of consistent application by Wisconsin courts.