COURT OF APPEALS DECISION DATED AND RELEASED November 8, 1995 |
NOTICE |
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. 94-0247
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
RICHARD L. AUSTIN,
SR.,
Individually, and as
the
Special Administrator
of the
ESTATE OF JENNIFER L.
AUSTIN,
and THERESA A. AUSTIN,
Plaintiffs-Respondents,
v.
NOVA SERVICES, INC.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Ozaukee County:
JOSEPH D. MC CORMACK, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. Nova Services, Inc.
appeals from a judgment in favor of Theresa A. Austin and Richard L. Austin,
Sr., individually and as the special administrator of Jennifer Austin's
estate. The Austins brought a wrongful
death action against Nova after their daughter, Jennifer, died while on a Lake
Michigan outing with a Nova staff member.
On appeal, Nova challenges several of the trial court's evidentiary
rulings, its refusal to reduce the pain and suffering award and the propriety
of the plaintiff's closing argument. We
see no error in the trial court's exercise of its discretion in these areas and
affirm.
At the time Jennifer
died, she was residing at a shelter care facility operated by Nova. On August 8, 1991, Jennifer and four other
teenage residents went on an outing to Lake Michigan. They were supervised by a Nova employee, Bethany Zerfas.
Despite rough water and
high waves, Zerfas twice allowed the teenagers to walk out onto a long
pier. Before the first trip, waves were
crashing over the five-foot vertical wall dividing the pier and hitting the
harbor side of the pier where Zerfas told the teenagers to walk. There was testimony at trial that the
conditions at the pier were among the worst ever seen. After again receiving permission from Zerfas
to walk on the pier, the teenagers again walked on the harbor side of the
vertical wall. However, on the way
back, they passed through cracks in the wall and walked on the lake side. Waves were crashing over the walking surface
and the teenagers were holding onto a cable attached to the vertical wall. Jennifer was pulled into the lake after
being hit by a wave. She struggled in
the water for as long as ten minutes, periodically going beneath the water and
resurfacing. She was also thrown
against a metal part of the pier by the force of the waves. Ultimately, she disappeared beneath the
water.
One of the teenagers ran
to shore to get help, and Officer Ronald Kridler of the Port Washington
police department responded within minutes of the time Jennifer was last seen
above the water. He was unable to
locate Jennifer from the pier and returned to shore to continue his
investigation. During interviews with
the police, the distraught teenagers did not say that Jennifer had been
reckless or failed to hold the cable while she was on the pier.
Nova desired to present
evidence regarding Jennifer's troubled past, alleged suicidal ideations,
substance abuse and juvenile delinquency disposition on a retail theft
charge. Nova contended that Jennifer's
difficulties were relevant to her parents' claim for loss of society and
companionship. Additionally, Nova
argued that evidence regarding Jennifer's recklessness and potential disregard
for her own life was relevant to whether she was contributorily negligent in
her death.
The trial court declined
to permit Nova to present evidence regarding Jennifer's suicidal ideations
because it would cause the jury to speculate that Jennifer's death was somehow
linked to those ideations or other aspects of her character. The trial court concluded that the probative
value of such evidence was outweighed by the danger of juror speculation. With regard to Jennifer's juvenile
disposition for retail theft, the trial court found that such evidence would
defeat the intent of ch. 48, Stats.,
that juvenile proceedings remain confidential.
Finally, on the question of Jennifer's alleged substance abuse, the
trial court stated that its probative value was outweighed by its prejudicial
effect.
Evidentiary matters are
within the trial court's discretion. Gonzalez
v. City of Franklin, 137 Wis.2d 109, 139, 403 N.W.2d 747, 759
(1987). We will uphold the trial
court's discretionary decision if that decision has a reasonable basis and was
made in accord with accepted legal standards and the facts of record. See Chomicki v. Wittekind,
128 Wis.2d 188, 195, 381 N.W.2d 561, 564 (Ct. App. 1985).
Nova argues that the
trial court's ruling prohibited it from exploring the impact of Jennifer's
difficulties upon her relationship with her parents, who were seeking to
recover for loss of society and companionship.
However, as the Austins point out in their brief, the jury heard
evidence that Jennifer was a habitual runaway and had significant conflicts
with her parents, particularly her mother.
Evidence was also introduced that Jennifer had scars from self-abuse and
that she claimed to be afraid of her parents.
Therefore, the jury was not deprived of this evidence or the opportunity
to consider it in assessing her parents' claim.[1]
While Nova reviews all
of the evidence of Jennifer's difficulties it wanted before the jury, it does
not distill this recitation into an argument, supported by citation to
authority, as to why the trial court misused its discretion in excluding this
evidence. Because Nova's argument is
lacking, we do not address it in detail.
See Fritz v. McGrath, 146 Wis.2d 681, 686, 431
N.W.2d 751, 753 (Ct. App. 1988). Our
review of the record indicates that the trial court properly exercised its
discretion in excluding this evidence.
Nova also challenges the
trial court's refusal to permit it to cross-examine Jennifer's parents
regarding her past conduct, including juvenile court proceedings, drug use,
suicide attempts and mental illness. We
have already held that the trial court properly excluded this evidence. Because the evidence was inadmissible, the
trial court properly exercised its discretion restricting cross-examination in
this area. See Peissig v.
Wisconsin Gas Co., 155 Wis.2d 686, 702, 456 N.W.2d 348, 355 (1990).
Nova complains that its
cross-examination of Barbara Badini, an Austin family friend, was unreasonably
restricted because the trial court precluded cross-examination regarding
Jennifer's siblings' criminal records.
Nova wanted to demonstrate on cross-examination that the Austins were
not a "big, happy, well-rounded family," as Badini had
testified. Nova argues that evidence of
Jennifer's difficulties and the criminal records of her siblings would have
been useful to the jury in assessing whether the Austin family was a happy one
and whether Jennifer herself was "happy, innocent, [and] carefree" or
"very troubled, wild and reckless ... whose conduct on the pier may well
have been affected by her very troubled state of mind."
The claim to be
determined at trial was Jennifer's parents' claim for loss of society and
companionship. While the conduct of
Jennifer's siblings might, in some respect, illuminate the family dynamics,
"evidence regarding the past conduct or indiscretions of family
members" is not relevant to the Austins' claim for loss of society and
companionship of one of their children.
See Strelecki v. Firemans Ins. Co. of Newark, 88
Wis.2d 464, 481, 276 N.W.2d 794, 801 (1979).
We also fail to see how
her siblings' criminal records illuminate Nova's theory that Jennifer's conduct
on the pier "may well have been affected by her very troubled state of
mind."
Nova complains that the
trial court erroneously permitted Officer Kridler, who arrived on the scene
shortly after Jennifer disappeared under the water and who assisted in the
investigation, to testify that given the wave conditions he observed that day,
he would not have allowed his seventeen-year-old nephew to go out on the
pier. Nova objected on the grounds that
Kridler was not qualified to give an expert opinion. The trial court admitted Kridler's testimony as lay opinion.
Section 907.01, Stats., governs opinion testimony by
lay witnesses:
If the witness is not testifying as an
expert, the witness's testimony in the form of opinions or inferences is
limited to those opinions or inferences which are rationally based on the
perception of the witness and helpful to a clear understanding of the witness's
testimony or the determination of a fact in issue.
The admission of opinion
evidence is within the trial court's sound discretion. Pattermann v. Pattermann, 173
Wis.2d 143, 152, 496 N.W.2d 613, 616 (Ct. App. 1992). We conclude that the trial court properly exercised its
discretion because Kridler's lay opinion regarding the advisability of allowing
teenagers to walk on the pier was based upon his observations shortly after
Jennifer disappeared.
Kridler testified that
when he arrived on the scene, the waves were continuously crashing over the
vertical wall dividing the pier. He
stated that the wave conditions on that day were "one of the more intense or
worse than I have seen." Kridler
said that while walking on the pier, he was very concerned for his own safety
because the waves were crashing onto the pier.
The question to Kridler focused on the conditions on the pier that
day. The trial court properly allowed
Kridler to give his lay opinion based on his perception of the conditions that
day and because his opinion aided the jury in assessing the conditions on the
pier that day.
An issue arose at trial
as to whether Jennifer was holding the cable before she was swept into the
lake. During an offer of proof, Kridler
testified that he took written statements from the four teenagers who had been
on the pier with Jennifer. In those
statements, none of the teenagers stated that Jennifer failed to grasp the
cable. The implication of this
testimony is that Jennifer was holding the cable before she was swept off the
pier. The statements were taken
approximately fifteen minutes after Kridler arrived at the scene, which was
shortly after Jennifer disappeared under the water. The trial court ruled that the statements were admissible as
excited utterance exceptions to hearsay under § 908.03(2), Stats.[2]
When the jury returned
to the courtroom, Kridler testified that the teenagers told him they were
holding the cable when a wave struck them, washing Jennifer off the pier. From those statements, Kridler testified
that he understood that all the teenagers, including Jennifer, were holding the
cable when Jennifer was swept in.
An excited utterance is
"[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition." Section 908.03(2), Stats.
This exception to the hearsay rule "is based in the spontaneity of
the statements and the stress of the incident which endow the statements with
the requisite trustworthiness necessary to overcome the general rule against
admitting hearsay evidence." State
v. Moats, 156 Wis.2d 74, 97, 457 N.W.2d 299, 309 (1990).
We agree with the trial
court that the teenagers' statements to Kridler approximately fifteen minutes
after Jennifer disappeared were made under the stress of the incident and had
sufficient indicia of trustworthiness.
While Nova contends that it is "clear" that the statements
were not excited utterances, it does not expand upon this contention.
Nova challenges the
jury's award to Jennifer's estate of $225,000 for her conscious pain and
suffering. Nova argues that this sum is
unreasonable given that Jennifer struggled in the water for only seven and
one-half minutes before she disappeared.
The amount of damages is
largely within the jury's discretion. Carl
v. Spickler Enters., Ltd., 165 Wis.2d 611, 625, 478 N.W.2d 48, 54 (Ct.
App. 1991). We will not disturb a
jury's damages award if there is any credible evidence which under any
reasonable view supports the award, especially if the trial court has approved
the verdict. Id. The trial court declined to reduce the pain
and suffering award after trial.
Nova argues that the
pain and suffering award was excessive when compared with awards in other
cases where the duration of pain and suffering was much longer. However, our standard of review is whether
there is any credible evidence in this case which, under any reasonable
view, supports the jury's damages award.
Id. There was
credible evidence regarding the nature and degree of Jennifer's conscious pain
and suffering while she was in the water.
Dr. Rita McDonald, a psychologist, testified about the physiological and
psychological trauma Jennifer experienced.
The teenagers who witnessed Jennifer's struggle testified that for as
long as ten minutes, she cried, shouted for help, struggled and was thrown
against the pier before she disappeared.
We conclude that there is credible evidence which reasonably supports
the jury's pain and suffering award.
Finally, Nova argues
that the plaintiffs improperly argued that the jury should award damages to
Jennifer's estate based upon the number of years of life she lost, rather than
her conscious pain and suffering.
Nova's argument is without merit because the record does not bear out
Nova's characterization of the plaintiffs' closing argument. After Nova objected to what it perceived to
be the plaintiffs' argument that Jennifer's estate should be compensated for
the years of life she lost, plaintiffs' counsel clarified for the jury that he
was asking them to consider Jennifer's mental anguish as she realized that she
would not live a life of normal duration.
Thereafter, in its instructions to the jury, the trial court advised the
jury that it should award damages for the pain and suffering endured by
Jennifer until she died. We presume
that jurors follow the instructions given to them. Ford Motor Co. v. Lyons, 137 Wis.2d 397, 457 n.20,
405 N.W.2d 354, 378 (Ct. App. 1987).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.