COURT OF APPEALS DECISION DATED AND FILED September 4, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before Higginbotham, P.J., Lundsten and Bridge, JJ.
¶1 LUNDSTEN, J. Mary Reid appeals a
circuit court judgment dismissing her wrongful death action following a jury
finding that the defendant, Hospitality Inn, was not negligent in the pool
drowning death of Mary’s husband, Jordan Reid. We assume, for argument’s sake only, that
Hospitality Inn was negligent as a matter of law for the reason that Mary
asserts, but we conclude that Mary points to no evidence from which a
reasonable jury could have found that the alleged negligence caused
Background
¶2 During the morning hours of May 19, 2006, Mary’s husband
¶3 Mary sued Hospitality Inn for the wrongful death of
Question No. 1: At or immediately prior to the time of the accident of May 19, 2006, was the defendant … negligent?
….
Question No. 2: At or immediately prior to the time of the accident of May 19, 2006, was the defendant … negligent in failing to construct and/or maintain their premises in a condition as safe as the nature of its business would reasonably permit?
Consequently, the jury did not reach the issue of causation. The circuit court entered judgment on the verdict in favor of Hospitality Inn. Mary appealed.
Discussion
¶4 Mary’s central argument on appeal is that the circuit court
should have overridden the jury verdict and declared Hospitality Inn negligent
as a matter of law based on a provision in Wis.
Admin. Code ch. HFS 172 that required Hospitality Inn to provide a
pool-side telephone. Mary argues that
the evidence indisputably showed that the required phone was missing when
¶5 We need not address the merits of Mary’s negligence arguments
because, regardless of the merit of those arguments, a directed verdict against
her was required. The evidence presented
at trial was insufficient to support a jury verdict finding that the alleged
negligence caused
¶6 Causation is an essential element of any negligence claim. See,
e.g., Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶11, 308 Wis. 2d
17, 746 N.W.2d 220; Gritzner v. Michael R., 2000 WI 68, ¶19, 235
A reviewing court will not upset a verdict if any credible evidence supports it. The evidence must under any reasonable view support the verdict and remove the question from the realm of conjecture. We look for credible evidence to sustain a jury’s verdict, and the credibility of witnesses and the weight afforded their individual testimony is left to the jury. In addition, even if more than one reasonable inference may be drawn from the evidence, we must accept the inference the jury draws.
Johnson v. Neuville, 226
¶7 It is pure speculation, unsupported by evidence, that anyone
could have used a pool-side phone to alter the course of events. All that the evidence shows is that the three
children with
¶8 We recognize that the jury did not reach the special verdict
question asking whether Hospitality Inn’s negligence caused the accident
because the jury found that Hospitality Inn was not negligent in the first
place. We may, however, affirm the
circuit court’s judgment on grounds different from those relied on below. Chevron Chem. Co. v. Deloitte & Touche,
176
¶9 Mary makes other, secondary arguments, such as her argument that the verdict was perverse because the jury found artificially low damages after being rushed through deliberations on a Friday afternoon, but these arguments are moot in light of our conclusion that causation is lacking.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.