COA confirms that restitution statute providing defendant may raise “any” defense available in a civil action does not include contributory negligence
State v. David T. Waits, 2023AP1592 and 2023AP1593, 12/23/25, District III (ineligible for publication); case activity
The COA affirmed an award of restitution to the victim of a hit and run although the defendant was not allowed to introduce evidence of the victim’s contributory negligence and the victim’s preexisting conditions aggravated her injuries.
David Waits was convicted of hit and run after a 2018 car accident. The circuit court ordered Waits to pay “Alice,” the victim, $40,959 in in restitution for medical expenses, lost wages, and her insurance deductible. While Alice’s medical records showed that she had a preexisting condition, the circuit court found the crash aggravated her condition. (¶ 8).
Waits argued on appeal that the circuit court erred because it did not allow him to introduce evidence of Alice’s contributory negligence and Wis. Stat. § 973.20(14)(b) provides that a defendant may assert at a restitution hearing “any defense that he or she could raise in a civil action for the loss sought to be compensated.” The COA rejected this argument because it was bound by its 2000 decision in Knoll, which held that raising contributory negligence at a restitution hearing is inconsistent with the informal nature of restitution proceedings. (¶ 13).
The COA also rejected Waits’ argument that there was insufficient causal nexus between Alice’s injuries and the car accident because medical records showed the accident was the origin of the injuries for which she was treated and aggravated her preexisting injuries. (¶ 18). Citing its 1996 decision in Behnke, the COA held that if the defendant’s actions are the precipitating cause of the injury and the injury was a natural consequence of the actions, the defendant is liable even though the victim’s preexisting condition might have aggravated the injury. (¶ 18).