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COURT OF APPEALS DECISION DATED AND RELEASED July 05, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-3030
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
ARLENE
CLAYTON-MALLETT,
Plaintiff-Appellant,
MANAGED HEALTH
SERVICES, INC.,
Plaintiff,
v.
MILWAUKEE COUNTY,
MILWAUKEE COUNTY
TRANSIT SYSTEM
and JAMES BROWN,
Defendants-Third Party
Plaintiffs-Respondents,
PHILLIP G. SIMPSON,
Third Party Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County: MICHAEL J. BARRON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Arlene Clayton-Mallett, pro se, appeals from a
judgment, after a jury trial, dismissing her personal injury action against
Milwaukee County for the negligence of its employee, James Brown, in the
operation of a Milwaukee County Transit System bus. Clayton-Mallett was a passenger in the bus when Phillip G.
Simpson struck the bus with his motor vehicle.
Her complaint alleged that as a result of Brown's negligent operation of
the bus, she suffered severe personal injuries. The County filed a third-party action against Simpson that was
eventually dropped. A jury found that
neither Brown nor Simpson was negligent in the operation of their vehicles;
consequently, the jury awarded no damages.
The trial court then entered a judgment dismissing the action and,
pursuant to § 814.10, Stats.,[1]
awarded the defendants $635.42 in costs.
Clayton-Mallett raises
several disparate and undeveloped issues on appeal: (1) whether the trial court erred in failing to grant a new trial
because the jury verdict was allegedly unsupported by credible evidence; (2) whether
the trial court erroneously exercised its discretion in failing to instruct the
jury on res ipsa loquitur; (3) whether the trial court erred in
awarding costs to the defendants pursuant to § 814.10, Stats.; and (4) whether she should be
granted relief from this court for unpaid physician and physical therapy bills.[2] None of the issues have any merit.
Accordingly, we affirm the judgment dismissing the action and awarding
statutory costs.
On motions after
verdict, Clayton-Mallett petitioned the trial court to grant a new trial
because she alleged that there was insufficient evidence to support the jury's
verdict. The trial court denied the
motion and approved the jury verdict on both the liability and damages issues. Clayton-Mallett renews this argument on
appeal.
“In reviewing a jury
finding following a trial, we sustain the jury's determination if there is any
credible evidence to support its verdict.”
Bauer v. Piper Industries, Inc., 154 Wis.2d 758, 763, 454
N.W.2d 28, 30 (Ct. App. 1990). Further,
“[w]e are even more reluctant to interfere when the trial judge has reviewed
the allegations of negligence and approved the jury verdict.” Id. Finally, “[t]he jury is the ultimate arbiter of witness
credibility and is uniquely empowered to make determinations of the parties'
negligence;” and we will not “usurp this function unless no reasonable jury
could find that an actor failed to exercise ordinary care.” Id.
There is abundant
evidence to support the jury's verdict in this case. The jury concluded that neither Brown nor Simpson was negligent
in the operation of his vehicle. This
was an intersection collision during snowy, inclement weather. There was testimony that Brown made a proper
lookout at the intersection, observed the Simpson vehicle, and made a
determination that it was safe to proceed.
Once Brown drove the bus into the intersection, another vehicle
unexpectedly pulled out of a driveway, causing Brown to stop in the
intersection. Further, Simpson
testified that there appeared to be sufficient distance between his and Brown's
vehicle when Brown entered the intersection.
Simpson was traveling within the posted speed limit but could not stop
his car because of the road conditions.
From this evidence, the jury could reasonably conclude that neither
Simpson or Brown was negligent in the operation of their motor vehicles. Consequently, we will not usurp the jury's
function and overturn its verdict. See
id.
For the first time on
appeal, Clayton-Mallett raises the issue of the trial court's failure to
instruct the jury on res ipsa loquitur.
Clayton-Mallett did not file a request for the instruction, and the
trial court did not mention it in its post-verdict decision. Section 805.13(3), Stats., provides that a party may file motions for requested
instructions at the instruction and verdict conference, and may object to
instructions or “other error.” Failure
to do so constitutes a waiver of any error in proposed instructions. Section 805.13(3), Stats.
Clayton-Mallett waived submission of the res ipsa loquitur charge
when she failed to request it at the instruction conference.
Clayton-Mallett requests
that this court reverse the trial court's judgment for $635.42 in costs imposed
against her pursuant to § 814.10, Stats. She, however, failed to comply with
§ 814.10(2), which required her to file objections to the bill of costs
with the clerk of courts. Further, she
did not petition the trial court for review of taxation of costs within the ten
days after the taxation as required by § 814.10(4). Under these circumstances, she has waived
her objection to costs. See §
805.11(1), Stats.
Finally, Clayton-Mallett
seeks relief from this court for unpaid physician and rehabilitation clinic
bills. She cites no authority for this
request; thus, we will not address it. See
Lechner v. Scharrer, 145 Wis.2d 667, 676, 429 N.W.2d 491, 495
(Ct. App. 1988) (argument not supported by legal authority will not be
considered on appeal).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]
Section 814.10, Stats.,
provides:
Taxation of costs. (1) Clerk's duty, notice, review.
The clerk shall tax and insert in the judgment and in the docket thereof, if
the same shall have been docketed, on the application of the prevailing party,
upon three days' notice to the other, the sum of the costs and disbursements as
above provided, verified by affidavit.
(2) Cost bill, service. All bills of
costs shall be itemized and served with the notice of taxation.
(3) Objections, proofs, adjournment.
The party opposing such taxation, or the taxation of any particular item shall
file with the clerk a particular statement of the party's objections, and the
party may produce proof in support thereof and the clerk may adjourn such
taxation, upon cause shown, a reasonable time to enable either party to produce
such proof.
(4) Court review. The clerk shall note on the bill all items disallowed, and all items allowed, to which objections have been made. This action may be reviewed by the court on motion of the party aggrieved made and served within 10 days after taxation. The review shall be founded on the bill of costs and the objections and proof on file in respect to the bill of costs. No objection shall be entertained on review which was not made before the clerk, except to prevent great hardship or manifest injustice. Motions under this subsection may be heard under s. 807.13.