Lead opinion by Posner
Posner,
Circuit Judge. In this diversity suit for negligence, governed (so far
as the substantive issues are concerned) by Wisconsin law, the jury
returned a verdict finding that plaintiff Kristin Beul's damages were $
1,100,000 and that she was 41 percent responsible for them; in
accordance with the verdict, judgment was entered against defendant
ASSE International for $649,000 (59 percent of $1.1 million). The
other parties can be ignored. The appeal raises issues of both tort law
and civil procedure.
The defendant is a nonprofit
corporation that operates international student exchange programs. For
a fee of $2,000 it placed Kristin, a 16-year-old German girl who
wanted to spend a year in the United States, with the Bruce family of
Fort Atkinson, Wisconsin. The family, which consisted of Richard Bruce,
age 40, his wife, and their 13-year-old daughter, had been selected by
Marianne Breber, the defendant's Area Representative in the part of the
state that includes Fort Atkinson. Breber is described in the briefs as
a "volunteer," not an employee; the only payment she receives from ASSE
is reimbursement of her expenses. Nothing in the appeal, however, turns
either on her "volunteer" status or on ASSE's nonprofit status.
Charities are not immune from tort liability in Wisconsin, Kojis v.
Doctors Hospital, 12 Wis. 2d 367, 107 N.W.2d 131 (Wis. 1961), and ASSE
does not deny that if Breber was negligent it is liable for her
negligence under the doctrine of respondeat superior, even though she
was not an employee of ASSE. The doctrine is nowadays usually described
as making an employer liable for the torts of his employees committed
within the scope of their employment, but strictly speaking the
liability is that of a "master" for the torts of his "servant" and it
extends to situations in which the servant is not an employee, provided
that he is acting in a similar role, albeit as a volunteer. E.g., Heims
v. Hanke, 5 Wis. 2d 465, 93 N.W.2d 455, 457-58 (Wis. 1958), overruled
on other grounds 445 by Butzow v. Wausau
Memorial Hospital, 51 Wis. 2d 281, 187 N.W.2d 349, 353-54 (Wis. 1971);
Morgan v. Veterans of Foreign Wars, 206 Ill. App. 3d 569, 565 N.E.2d
73, 77, 151 Ill. Dec. 802 (Ill. App. 1990); Restatement (Second) of
Agency ยง 225 (1958). In Morgan, as in this case, the defendant was a
charity.