COURT OF APPEALS DECISION DATED AND FILED October 29, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 Lundsten, Higginbotham and Bridge, JJ.
¶1 BRIDGE, J. Wayne C. Kulcinski and American Family Mutual Insurance Company separately appeal from a judgment entered in a personal injury action. The underlying action arises from an accident in which a vehicle driven by Kulcinski struck Chouader Benjamin Yang (hereinafter Benjamin) on a street near a school where the posted speed limit was fifteen miles per hour when children are present. The circuit court determined that Kulcinski was negligent as a matter of law because he was driving in excess of fifteen miles per hour at the time of the accident, in violation of Wis. Stat. § 346.57(4) (2007-08),[1] and a jury subsequently apportioned eighty percent of the causal negligence to him. Collectively, Kulcinski and American Family make three arguments on appeal: (1) Section 346.57(4) is unconstitutionally vague; (2) the circuit court erroneously exercised its discretion in denying Kulcinski’s request for a special verdict question as to whether Benjamin was in the crosswalk at the time of the accident; and (3) the jury’s verdict should have been set aside because a remark made by Benjamin’s attorney during closing argument ran afoul of the circuit court’s ruling barring discussion of settlement negotiations.[2] We reject each argument and affirm.
BACKGROUND
¶2 This action was commenced by Mai Yee Xiong, Baylao Joseph Yang, and their son, Benjamin, by and through his guardian ad litem, to recover damages suffered by them when Benjamin was struck while in a school zone by a truck driven by Kulcinski.[3] American Family was Kulcinski’s automobile insurer at the time of the accident.
¶3 The following facts are taken from witness testimony and are
largely undisputed. At approximately
5:00 p.m. on November 8, 2005, Houadao Yang, who was thirteen at the time,
decided to pick up three of his younger siblings, including seven-year old
Benjamin, and walk them home from an after-school program at
¶4 After signing his siblings out, Houadao walked towards home with the younger children following. Their path initially traced the boundary of the playground, proceeding south from the school to the corner of Kane and Gillette, and then turning west on Gillette until they approached the intersection of Gillette and Charles. Houadao testified that he observed that there were “a lot” of children playing in the playground at the time.
¶5 Houadao and two of the children crossed Gillette in the crosswalk, heading south; however, Benjamin had fallen behind and did not cross the street with them. Houadao testified that he and his other siblings were still in the crosswalk, but almost to the street curb, when Benjamin entered the street. He testified that he and his siblings had fully crossed the street by the time Benjamin was hit by Kulcinski’s truck, which was traveling eastbound on Gillette. The parties dispute whether Benjamin crossed Gillette in the crosswalk. However, it is undisputed that Benjamin was traveling on the sidewalk in front of the playground prior to crossing Gillette.
¶6 Kulcinski testified that he was likely driving twenty to twenty-five miles per hour as he approached the intersection. He testified that he was looking only straight ahead and did not see Benjamin before the accident occurred. Kulcinski also testified that prior to the accident, he did not see any children on the street, sidewalk, playground, or elsewhere in the vicinity.
¶7 Immediately prior to the accident, Thomas Alford was driving westbound on Gillette, approaching the intersection of Gillette and Charles. He testified that immediately after the accident, he observed multiple children “on the sidewalk up by the [L]aundromat.” The Laundromat is located on the south side of Gillette at the intersection of Gillette and Charles. Alford further testified that immediately after the accident, he noticed that there were children on the sidewalks on both sides of Gillette.
¶8 Laura Schefelbine, a passenger in Alford’s vehicle, testified that she saw Benjamin, who she described as a “shadowy blur,” immediately before he was hit by Kulcinski’s vehicle. She further testified that at “about the same time,” she saw a person later identified as Houadao come from the opposite corner of Gillette from which Benjamin had come and that “shortly after, I don’t know how long, within [a] second, minute maybe, his other siblings came over to see what had happened.”
¶9 The final witness to the accident, Jane Lang, observed the accident from her home, which was located on Charles north of Gillette. She testified that she saw children playing at the playground, the children exited the playground through a hole in the fence in the alley between Kane and Charles, and four or five children then crossed Gillette heading south. She testified that she observed one of the children cross Charles at the Laundromat heading west, and two of the children travel south on Charles past the Laundromat. She also testified that she observed one child, who was lagging behind the others, cross Gillette when he was hit by a white car.
¶10 The Yangs moved for partial summary judgment on the issue of Kulcinski’s causal negligence. The circuit court granted the motion, ruling that Kulcinski was negligent as a matter of law for driving in excess of fifteen miles per hour in the posted zone. The court determined, however, that the apportionment of fault as between Benjamin and Kulcinski was a question for the jury. The court also granted a motion in limine brought by American Family to bar the parties from introducing evidence of, making any reference to, or making any arguments regarding any settlement negotiations, demands, or offers. In addition, the court denied Kulcinski’s request that a special verdict question be given to the jury asking it to determine whether Benjamin was in the crosswalk at the time of impact.
¶11 At the end of the Yangs’ closing argument, American Family moved for a mistrial based on a statement made by the Yangs’ attorney, which we discuss in more detail in ¶¶31-42 below. American Family argued that the statement violated the court’s earlier ruling prohibiting any reference to settlement negotiations. The court denied American Family’s motion, explaining that the statement had not tainted the jury in light of both the court’s remaining instructions to the jury, and the overall context of the remainder of the attorney’s argument.
¶12 The jury ultimately apportioned eighty percent of the causal negligence to Kulcinski, and twenty percent to Benjamin. Following the jury’s verdict, American Family and Kulcinski moved to change the answer to special verdict question number one, which addressed whether Kulcinski was negligent, from “Yes” to “No.” They also moved to set aside the verdict and for a new trial, arguing that a new trial was warranted in the interest of justice because the Yangs’ attorney violated the court’s ruling prohibiting any reference to settlement negotiations and because the verdict was contrary to law and against the great weight of the evidence. Kulcinski and American Family also argued that a new trial was warranted because the circuit court erred in failing to provide Kulcinski’s requested special verdict question regarding whether Benjamin was in the crosswalk at the time of the accident, and because the verdict was the result of the jury’s “passion, prejudice and perversity,” shocked the conscience, was speculative and was unsupported by the evidence. The circuit court denied the parties’ motions and these appeals followed. We address additional facts as necessary in the discussion below.
DISCUSSION
¶13 Kulcinski makes three arguments on appeal: (1) Wis. Stat. § 346.57(4) is unconstitutionally vague; (2) the circuit court erroneously exercised its discretion when it denied Kulcinski’s request for a special verdict question as to whether Benjamin was in the crosswalk at the time of the accident; and (3) the circuit court should have set aside the jury’s verdict and granted him a new trial because the remark by the Yangs’ attorney during closing argument ran afoul of the circuit court’s ruling barring the discussion of settlement negotiations. American Family joins in the last of these arguments. In addition, the Yangs seek frivolous appeal costs and fees under Wis. Stat. § 809.25(3). We address each issue in turn.
Partial Summary Judgment Ruling
¶14 Kulcinski challenges the circuit court’s entry of partial
summary judgment against him following its ruling that he was negligent as a
matter of law because he was driving in excess of fifteen miles per hour at the
time of the accident. We review the
grant or denial of summary judgment de novo, employing the same methodology as
the circuit court. See Estate of Thompson v.
¶15 Kulcinski contends that summary judgment was inappropriate on the issue of his negligence as a matter of law for exceeding the speed limit because Wis. Stat. § 346.57(4), which imposes fixed speed limitations in various areas, including locations marked by “school crossing” signs, is unconstitutionally vague.[4] Section 346.57 provides in pertinent part as follows:
Speed restrictions.
….
(2) Reasonable and Prudent Limit. No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. The speed of a vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and using due care.
(3) Conditions Requiring Reduced Speed. The operator of every vehicle shall, consistent with the requirements of sub. (2), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hillcrest, when traveling upon any narrow or winding roadway, when passing school children, highway construction or maintenance workers or other pedestrians, and when special hazard exists with regard to other traffic or by reason of weather or highway conditions.
(4) Fixed Limits. In addition to complying with the speed restrictions imposed by subs. (2) and (3), no person shall drive a vehicle at a speed in excess of the following limits unless different limits are indicated by official traffic signs:
(a) Fifteen miles per hour when passing a schoolhouse at those times when
children are going to or from school or are playing within the sidewalk area at
or about the school.
(b) Fifteen miles per hour when passing an intersection or other location
properly marked with a “school crossing” sign of a type approved by the
department when any of the following conditions exists:
1. Any child is present.
(Emphasis added.) Our
review of the constitutionality of a statute is a question of law which
we review de novo. State
v. Jensen, 2004 WI App 89,
¶12-13, 272
¶16 We begin by observing that Kulcinski’s vagueness challenge is
not well developed.[5] As an initial proposition, Kulcinski does not
specify whether he is contending the statute is unconstitutionally vague on its
face or as applied to the facts of this case.
With respect to a facial challenge, a challenger must show that the
statute cannot be enforced under any circumstances. See Olson v. Town of Cottage Grove,
2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749 N.W.2d 211. In contrast, a challenger asserting an
as-applied challenge need prove only that the challenged provision is
unconstitutional as it is applied to the facts of a particular case or to a
particular party.
¶17 Kulcinski does not contend that Wis. Stat. § 346.57(4) is
impermissibly vague in all its applications. Further, he does not dispute
the Yangs’ argument that he is not seeking to strike § 346.57(4) as
unconstitutionally vague in all circumstances. See Schlieper v. DNR, 188
¶18 Kulcinski argues that Wis. Stat. § 346.57(4) is unconstitutional because the phrase “when children are present” within the statute is unconstitutionally vague. However, this phrase refers to the wording which appeared on the school speed limit sign located near the site of the accident. Because Kulcinski challenges the constitutionality of § 346.57(4), we instead refer to that statute’s provision establishing a fifteen mile per hour speed limit when “any child is present.” (Emphasis added.)
¶19 Next, we observe that Kulcinski does not attempt to establish
the facts on which he bases his as-applied vagueness challenge. Instead, from what we are able to discern,
Kulcinski contends that Wis. Stat. § 346.57(4)(b)
is unconstitutionally vague as a general proposition because the statute does
not define the word “present” and thus fails to provide him notice as to when
he is required to slow his speed to fifteen miles per hour while driving near a
school. Rather than assert vagueness
generally, however, a party making an as-applied vagueness challenge must establish
beyond a reasonable doubt that a statute is unconstitutionally vague as applied
to the specific circumstances at hand. See Joseph
E.G., 240
¶20 A statute is not vague if “by the ordinary process of
construction, a practical or sensible meaning may be given to the …
[law].” State v. Smith, 215
¶21 The record reveals the following undisputed facts which bear on
the issue of whether a child was present within the meaning of Wis. Stat.
§ 346.57(4)(b) at the time of the accident. By his own admission, Kulcinski was looking
only straight ahead and thus did not observe any children in the school zone at
the time of the accident. However, the evidence reflects that Benjamin was in the
street in front of the school playground when he was struck by Kulcinski’s
truck. In addition, the evidence
reflects that each of the three witnesses observed Benjamin’s siblings in view
at the intersection in front of the school playground at the time of the
accident. All of these children were
plainly visible and were so near the school that they were obviously “present”
within the meaning of the statute.[6]
¶22 Construing
Wis. Stat. § 346.57(4)(b) according to the common meaning of its terms,
we conclude that it put Kulcinski on notice that when children are both visible
and so near a school that they are in or next to a street adjacent to the school,
he was required to reduce his speed to fifteen miles per hour. We therefore conclude that § 346.57(4)
is not unconstitutionally vague as applied to the facts of this case.
¶23 We
perceive no further arguments by Kulcinski as to why partial summary judgment
was inappropriate under these facts. It
is undisputed that Kulcinski was driving his vehicle in excess of fifteen miles
per hour when passing an intersection with a properly marked school sign. As discussed above, at least one child was
present at the time, and Kulcinski does not dispute this fact. These undisputed facts establish as a matter
of law that Kulcinski was in violation of Wis. Stat. § 346.57(4)(b) at the time of the
accident. It was therefore proper for the circuit court
to grant the Yangs’ motion for summary judgment on the limited issue of
Kulcinski’s negligence as a matter of law in exceeding the speed limit.[7]
Special Verdict Question Regarding Crosswalk
¶24 Kulcinski contends that the circuit court erred in declining to submit to the jury a special verdict question on whether or not Benjamin was crossing the street in the crosswalk at the time of the accident.
¶25 Circuit courts are given wide discretion in framing special
verdict questions. Estate of Hegarty v. Beauchaine, 2006
WI App 248, ¶46, 297
¶26 Kulcinski argues that his proposed special verdict question
should have been presented to the jury because, under Field v. Vinograd, 10
¶27 Kulcinski is correct that pedestrians who cross a roadway
outside a marked or unmarked crosswalk are required to yield the right-of-way
to vehicles, and that the failure to do so makes the pedestrian causally
negligent to some extent in the event of an accident. Wis.
Stat. § 346.25; Field, 10
¶28 We do not construe the supreme court’s statement in Wicker
as dictating the result Kulcinski seeks. For example, it is unreasonable to suggest
that a person, faced with crossing a rural curving hilly road with limited
visibility, and no marked crosswalk for miles, and who looks both ways before
crossing, is nonetheless per se fifty
percent negligent if she is struck by a car being driven at a dangerously high
speed by an intoxicated driver. At most,
the statement in Wicker stands for the proposition that in some situations, crossing outside a crosswalk has resulted in a
pedestrian being found to be at least fifty percent negligent in the event of
an accident. The general rule, however,
is that the comparison of negligence is for the jury, and “[i]t is only in an
exceptional case that a trial court, or reviewing court, may say as a matter of
law that the negligence of the pedestrian is greater than that of the driver.” Staples v. Glienke, 142
¶29 Here, the circuit court presented the jury with the following special verdict questions:
QUESTION 1: Was Wayne C. Kulcinski negligent?
ANSWER: Yes. (Answered by Court)
QUESTION 2: If you answered Question 1 “yes,” then answer this question: Was such negligence a cause of Ben Yang’s injuries?
ANSWER: _____________ (Yes or No)
QUESTION 3: Was Ben Yang negligent?
ANSWER: _____________ (Yes or No)
QUESTION 4: If you answered Question 3 “yes,” then answer this question: Was such negligence a cause of Ben Yang’s injuries?
ANSWER: _____________ (Yes or No)
QUESTION 5: If you answered both Questions 2 and 4 “yes,” then you must answer the following question:
Taking all the fault that contributed to the accident to be 100%, what percent or proportion thereof do you attribute to:
a. Wayne C. Kulcinski __________%
b. Ben Yang __________%
¶30 We conclude that all material issues of ultimate fact in the matter were addressed in the special verdict form, and that the special verdict form correctly and adequately reflected the law that applies to this case. Accordingly, we conclude that the circuit court did not erroneously exercise its discretion in denying Kulcinski’s request for a separate inquiry on the special verdict as to whether Yang was outside the crosswalk when he was struck by Kulcinski’s vehicle.
Remarks of Counsel
¶31 Kulcinski and American Family contend that the circuit court should have set aside the verdict and ordered a new trial because of an improper statement made by the Yangs’ attorney, Ardell Skow, during his closing argument.
¶32 The decision to grant or deny a motion for new trial lies
within the discretion of the circuit court.
State v. Harris, 2008 WI 15, ¶109, 307
¶33 In order for a new trial to be warranted for improper remarks,
“it must ‘affirmatively appear’ that the remarks prejudiced the complaining
party.”
¶34 The statement which Kulcinski and American Family argue entitles them to a new trial consisted of the following:
You know, I think there’s a natural tendency for us to say, gosh, I feel bad for Mr. Kulcinski. You know what? I do, too, as a father and grandfather. We have got a dispute here and we haven’t been able to agree with American Family who represents these people --
Following an objection by American Family, a discussion ensued during which Attorney Skow questioned whether he could refer to Wis JI—Civil 125, which the court had previously given the jury. Wisconsin JI—Civil 125 states as follows:
References to an insurance company have been made in this case. The title to this case included an insurance company as a defendant. There is no question as to insurance in the special verdict, however. This is because there is no dispute of fact concerning insurance in this case. In addition, whether a defendant is liable or not liable for any damages is the same, whether defendant is or is not insured. Under your oath as jurors, you are bound to be impartial toward all parties to this case. So, you should answer the questions in the verdict just as you would if there were no insurance company in the case.
The court responded that counsel could talk about the jury instruction, but could not offer argument on the subject.
¶35 Following this discussion, Attorney Skow continued his closing argument as follows:
The
court told you in the instructions that you’re not to consider the fact that
there is insurance. And you shouldn’t
decide this case any differently because there’s insurance because there’s no
dispute about it. That’s what she told
you in the instructions and in the State of
I’m concerned about you deciding this case based upon who has to pay and you shouldn’t consider it at all. It should not be considered. Follow the Court’s instruction and just call this as you see it.
And so obviously, we have not been able to agree and that’s why we are here ….
¶36 No further objections were made regarding Attorney Skow’s remark. However, at the end of Attorney Skow’s closing argument, American Family moved for a mistrial. The court denied the motion, ruling that it was “satisfied that based upon the Court’s instruction and the rest of the [tenor] of [Attorney Skow’s] argument that it hasn’t tainted this jury.”
¶37 Following the jury’s verdict, Kulcinski and American Family moved to set aside the verdict and for a new trial based in part on counsel’s remark. The circuit court denied the motions, explaining:
Taking the evidence as a whole, I believe this jury carefully sifted through what they had, made their decisions on credibility, and made their awards and did that without regard to the arguments made by counsel in closing statements.
… [T]he fact of the matter still is that I believe this jury was instructed in various ways, including jury instruction 125, which is the jury instruction about treating this case as if an insurance company is not here, and jury instruction 110 which tells them that the closing arguments of counsel are not evidence.
¶38 We agree with the circuit court. The remark by Attorney Skow was very brief
and was immediately followed by a longer explanation that specifically advised
the jury that insurance should not be a factor in its decision making. In addition, the circuit court instructed the
jury according to
¶39 Kulcinski directs us to cases from other jurisdictions in which
courts have held that it was improper for an attorney’s closing argument to
draw the jury’s attention to settlement negotiations involving the
parties. See, e.g., Wagnon v. Porchia, 361
S.W.2d 749 (
¶40 In Porchia, the defendant’s insurance carrier
settled with the plaintiff, but the defendant continued to prosecute the
cross-complaint against the plaintiff. Porchia,
361 S.W.2d at 736. In reference to the
fact that the insurance carrier settled with the plaintiff immediately after
the accident there at issue, defendant’s counsel told the jury that “they
settled with Porchia a short time after this happened, and paid him for
whatever his damages were.”
¶41 Further, neither American Family nor Kulcinski attempt to
explain how the objectionable statement affected the jury’s award. American Family directs our attention to Horgen
v. Chaseburg State Bank, 227
¶42 American Family’s argument relies on its position that the jury’s verdict in the present case may have gone the other way absent what it characterizes as the circuit court’s erroneous rulings with respect to finding Kulcinski negligent as a matter of law and declining to submit to the jury a special verdict question on whether Benjamin was in the crosswalk at the time of the accident. Because we have concluded that these rulings were proper, however, this contention fails. We are also not persuaded that the verdict probably would have been favorable to Kulcinski and American Family but for the improper remark by Attorney Skow. We therefore conclude that the circuit court did not erroneously exercise its discretion by denying the motions for a new trial.
Sanctions for Frivolous Appeal
¶43 The Yangs seek frivolous appeal costs and fees under Wis. Stat. Rule 809.25(3). A frivolous appeal is one that is filed “without any reasonable basis in law or equity” and for which no “good faith argument for an extension, modification or reversal of existing law” can be made. Section 809.25(3)(c)(2). Although we are not persuaded by Kulcinski’s and American Family’s contentions on appeal, we cannot conclude that they were made without any reasonable basis in law or equity, as the Yangs argue. Accordingly, we deny the motion.
CONCLUSION
¶44 For the reasons discussed above, we affirm the judgment of the circuit court.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Kulcinski raises all three issues on appeal; American Family joins in only the third issue.
[3] For ease of understanding, we refer to Mai Yee Xiong, Baylao Joseph Yang, and Benjamin collectively as the Yangs.
[4] Kulcinski
also contends that summary judgment was inappropriate because the posted speed
limit of fifteen miles per hour “when children are present” “lacks credibility
and is uniformly disregarded.” However,
he has cited no case, and we have discovered none, in which a court has ruled
that a driver is free to disregard a posted speed limit sign because the sign
“lacks credibility” or is “uniformly disregarded.” Because Kulcinski does not support his
argument by citation to any legal authority, we decline to address this
contention further.
[5] We
generally decline to address arguments which are insufficiently developed.
[6] Additionally, witness Thomas Alford testified that he noticed children on both sides of Gillette at the time of the accident. Although the remaining two witnesses did not describe the presence of children in this location, they did not testify that no children were present as described, and Kulcinski does not attempt to refute this testimony.
[7] We note that the court’s ruling resolved only the issue of Kulcinski’s negligence as a matter of law in exceeding the speed limit in a school zone when a child was present. The court’s ruling did not resolve whether Kulcinski was negligent in other ways, such as failing to maintain a proper lookout or failing to maintain proper management and control of his vehicle. The court permitted the overall issue of causation to go to the jury, which was free to determine whether Kulcinski and Benjamin were each negligent in other respects, and to compare and apportion the negligence between the two.
[8]
The verdict shall be prepared by the court in the form of written questions relating only to material issues of ultimate fact and admitting a direct answer…. In cases founded upon negligence, the court need not submit separately any particular respect in which the party was allegedly negligent.