COURT OF APPEALS DECISION DATED AND RELEASED August 9, 1995 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
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No. 94-1245
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
ESTATE OF LYNN
BOXHORN,
by personal
representative,
ELLEEN L. RIETH,
Plaintiffs-Respondents,
LOUIS C. BOXHORN,
Plaintiff-Respondent-Cross Appellant,
v.
STATE FARM MUTUAL
AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellant-Cross Respondent,
HANS H. MEVES,
AMERICAN FAMILY MUTUAL
AUTOMOBILE INSURANCE
COMPANY
and WISCONSIN
PHYSICIANS
SERVICE,
Defendants.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Waukesha County: ROBERT G. MAWDSLEY, Judge. Affirmed in part; reversed in part and
cause remanded with directions.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER
CURIAM. Hans Meves' automobile struck Lynn Boxhorn
as she was walking to her car. The jury
found Meves 100% negligent in causing Lynn's death and awarded her father,
Louis C. Boxhorn, $525,000 for past pain and suffering, loss of society and
companionship, and for pecuniary loss occasioned by Lynn's death. State Farm Mutual Automobile Insurance
Company appeals from the judgment in favor of Boxhorn. It argues that it was error to refuse to
give the right-of-way instruction, that a claim for negligent infliction of
emotional distress should not have been submitted to the jury, that damages
were excessive, and that the verdict was perverse and warrants a new trial in
the interest of justice. Boxhorn
cross-appeals, claiming that because of his offer of settlement, double costs
and interest should have been allowed.
We affirm the judgment except for the damages award for past pain and
suffering; we reverse that portion of the judgment and order a new trial on the
issue of damages for past pain and suffering.
For the purpose of
visiting a garage sale, Lynn parked her car facing west on the shoulder of the
westbound side of the road. Boxhorn
waited in the car for Lynn to return.
As Lynn was walking westerly toward the driver's side of her car, she
was struck by Meves' westbound automobile.
The trial court instructed the jury on lookout using Wis J I—Civil 1055, 1070, and 1095.[1] State Farm argues that the jury should have
been instructed on right-of-way to make clear that Lynn had the duty to yield
the right-of-way to vehicular traffic on the road. See Staples v. Glienke, 142 Wis.2d 19,
31-32, 416 N.W.2d 920, 925-26 (Ct. App. 1987) (whether crossing or walking
alongside the highway, pedestrian had an absolute duty to yield the
right-of-way to traffic and the failure to do so constitutes negligence as a
matter of law).
The trial court has wide
discretion in issuing jury instructions.
Wingad v. John Deere & Co., 187 Wis.2d 441, 454, 523
N.W.2d 274, 279 (Ct. App. 1994). If the
instructions adequately cover the law, there is no erroneous exercise of
discretion when the court refuses to give a requested instruction, even if the
proposed instruction is correct. Id. We will affirm the trial court's exercise of
discretion if the determination is one a reasonable judge would reach and
consistent with applicable law. Id.
at 454-55, 523 N.W.2d at 280. Ultimate
resolution of the appropriateness of giving a particular instruction turns on a
case-by-case review of the evidence, with each necessarily standing on its own
factual ground. State v. Vick,
104 Wis.2d 678, 690-91, 312 N.W.2d 489, 495 (1981).
The only right-of-way
instruction offered by State Farm was Wis
J I—Civil 1250.[2] That instruction deals with a pedestrian's
obligation to yield the right-of-way when attempting to solicit a ride from the operator of a motor vehicle.[3] The trial court correctly determined that
the factual circumstances here did not involve an attempt to solicit a
ride. The proposed instruction was not
warranted.
The trial court explained
that right-of-way considerations were covered by the combined lookout
instructions. By the lookout
instructions the jury was told that a driver must maintain a sufficient lookout
to yield the right-of-way to pedestrians with the statutory right-of-way in a
marked or unmarked crosswalk.
Conversely, the jury was told that when a pedestrian is in the roadway
at a place other than a crosswalk, it is the pedestrian's duty to maintain
lookout so as to yield the right-of-way to cars. "Error cannot be predicated upon a refusal to give a
requested instruction, even though it correctly states the law, where the
substance of the requested instruction is embodied in another
instruction." Peot v.
Ferraro, 83 Wis.2d 727, 732, 266 N.W.2d 586, 589 (1978).
A factual dispute
existed as to whether Lynn was in the roadway when she was struck. Given the evidence, we conclude that the
instructions given adequately advised the jury of the corresponding duties to
yield the right-of-way. On the
instructions given, the jury was able to make a reasonable analysis of
evidence. The trial court did not
erroneously exercise its discretion in refusing to give the right-of-way
instruction.
State Farm contends that
the jury failed to follow the jury instructions. It points out that the jury awarded $100,000 for loss of society
and companionship despite the fact that it was instructed that a person may
only recover $50,000 for such a claim.
State Farm argues that the jury's answer suggests that the verdict is
perverse and that the jury was incited by passion. Perversity cannot be inferred from the jury's $100,000 award for
loss of society and companionship.
While the jury was instructed that the law limits recovery to $50,000,
it was also advised that the dollar limit is not a measure of damage. The jury followed the instruction to
determine a fair amount of compensation without regard to the limitation.
State Farm also argues
that the jury's initial inconsistency in answering the liability questions and
the subsequent changes it made to those questions confirms that the jury was
driven by passion and prejudice. The
initial verdict returned by the jury found that Lynn was not causally negligent
but, contrary to the instructions in the verdict not to answer the
apportionment question, the jury apportioned liability 99% against Meves and 1%
against Lynn. After being instructed by
the trial court to read the introductory portions of the verdict questions
carefully, the jury returned to deliberations.
The jury then sent out a note asking if it could change its answer to
the question as to whether Lynn was negligent.
The trial court instructed the jury to decide its answers in accordance
with the evidence and instructions.
After further deliberation, the jury returned a verdict finding that
Lynn was not negligent.
We conclude that the
difficulties the jury experienced in answering the verdict questions was not
the result of its inability to follow the jury instructions. The trial court handled the entire matter
impartially and reinstructed the jury appropriately. Potential prejudice is presumptively erased when admonitory
instructions have been properly given by the trial court. Sommers v. Friedman, 172
Wis.2d 459, 467-68, 493 N.W.2d 393, 396 (Ct. App. 1992). Ultimately, the jury was able to complete
the verdict without inconsistency. The
trial court polled the jurors and there is no suggestion that the panel was
confused as to the answers. No grounds
exist for a new trial in the interest of justice.
We next address State
Farm's argument that Boxhorn did not suffer any compensable pecuniary loss
because Boxhorn now performs for himself the household services Lynn had
provided.[4] State Farm also argues that the $300,000
award for pecuniary loss was excessive.
The jury heard how Lynn,
age forty-six, maintained a household with her father, age eighty-one. She took over all the household chores when
her mother died and changed to third-shift employment so she could be at home
to care for Boxhorn. She cleaned house,
did snow removal, cut the grass, helped with the garden, did the grocery
shopping, paid for groceries out of her own money, cooked, did laundry and did
all the driving. Lynn had nursed her
father through seventeen operations, made sure he returned to the doctor for
necessary check-ups and monitored his medications. A vocational expert testified that if Boxhorn purchased such
services it would cost approximately $16,000 to $18,000 a year.
At the time of trial,
Boxhorn had not yet hired anyone to perform the services Lynn had
provided. However, we reject State
Farm's notion that this precludes an award of pecuniary loss. Pecuniary injury can be measured as
"such sum as will equal the value of such support and protection of the
[surviving family member] as the [deceased] would have furnished during the
time [the deceased] probably would have lived." Schaefer v. American Family Mut. Ins., 182 Wis.2d
380, 385-86, 514 N.W.2d 16, 19 (Ct. App. 1994), aff'd as modified,
___ Wis.2d ___, 531 N.W.2d 585 (1995) (quoting Maloney v. Wisconsin
Power, Light Heat Co., 180 Wis. 546, 547, 193 N.W. 399, 399
(1923)). The household services
provided by Lynn have economic value even though no compensation is paid among
family members. See Boles
v. Milwaukee County, 150 Wis.2d 801, 816-17, 443 N.W.2d 679, 685 (Ct.
App. 1989).
"Pecuniary injury"
as used in § 895.04(4), Stats.,
is broadly defined and permits the jury to consider a very wide range of
factors in determining the amount of pecuniary loss. Estate of Holt v. State Farm, 151 Wis.2d 455, 460,
444 N.W.2d 453, 455 (Ct. App. 1989). Nothing
requires the jury's function to be limited by the actual expenditure of
money. The critical question was
whether Boxhorn had a "reasonable expectation of pecuniary advantage"
by Lynn remaining alive. Id.
at 459, 444 N.W.2d at 454. Lynn's
services could constitute a pecuniary advantage. A jury question existed and there was no error in submitting the
claim to the jury.
In reviewing damages
awarded by a jury, we may not substitute our judgment for that of the jury, but
rather must determine whether the award is within reasonable limits. Badger Bearing v. Drives &
Bearings, 111 Wis.2d 659, 670, 331 N.W.2d 847, 854 (Ct. App.
1983). Where, as here, the trial court
has sustained the verdict over a claim of excessiveness, the question is
"whether there is any credible evidence that under any reasonable view
supports the verdict and removes the issue from the realm of
conjecture." Coryell v. Conn,
88 Wis.2d 310, 315, 276 N.W.2d 723, 726 (1979). We must view the evidence in the light most favorable to the
damages award. Badger Bearing,
111 Wis.2d at 670, 331 N.W.2d at 854.
The vocational expert
testified to the base value of Lynn's services. He explained that additional expenses would be incurred for
benefits, taxes or agency fees. He also
indicated that a live-in companion would be paid a greater amount of money and
be afforded rent-free accommodations.
The jury could infer that Lynn spent a great deal more time caring for
Boxhorn than the minimum hours calculated by the vocational expert. The jury also heard that Lynn expended $2100
annually for household groceries. At
the time of trial, Boxhorn's life expectancy was 6.8 years. However, the jury was free to evaluate
Boxhorn's life expectancy in view of the fact that he had successfully
recovered from a number of surgeries and was able to minimally care for himself
in his own home. As we have already
noted, in determining pecuniary loss the jury may assess a wide variety of
factors. Even though the award is in
excess of that requested in Boxhorn's closing argument, credible evidence
exists to support the award and we must sustain it.[5]
We turn to the remaining
issue in the appeal upon which we reverse the award of damages for past pain
and suffering. We first note that the
parties agree that the jury award of $125,000 for past pain and suffering
included damages for emotional distress occasioned by Boxhorn's bystander
status at the accident scene. There is
no doubt that Boxhorn sought to recover such damages. It was a separate claim in the complaint. Boxhorn does not attempt to defend the award
as solely based on pain and suffering occasioned by his own injuries.[6] Thus, even though the jury was not
specifically instructed on the elements of a claim for the negligent infliction
of emotional distress, it was litigated here.
Damages for negligent
infliction of emotional distress arise from a bystander's observance of the
circumstances of the death or serious injury of a loved one, either when the
incident occurs or soon after. Bowen
v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 660, 517 N.W.2d 432, 445
(1994). Recovery is permitted if the
claimant witnessed an "extraordinary event"—that is, either an
incident causing death or serious injury or the gruesome aftermath of such an
event minutes after it occurs. Id.
at 657-58, 517 N.W.2d at 444-45. State
Farm argues that Boxhorn failed to establish that he observed the death of his
daughter.
The
testimony established that Boxhorn hit his head on the doorjamb when Meves' vehicle
struck Lynn's car. He believed he was
unconscious for a short period of time because when he came to, people were at
the car and would not let him get out of the car. Boxhorn remained in the car until dispatched to the
hospital. He testified that he knew his
daughter had been hit and that she was lying in the ditch but he did not know
her condition. A witness on the scene
testified that Boxhorn was hollering for his daughter. Another testified that Boxhorn asked if his
daughter was alright.
We need not decide
whether the evidence was sufficient to permit the jury to conclude that Boxhorn
had witnessed an "extraordinary event" because his claim fails on
another evidentiary gap. Boxhorn failed
to establish that his brief bout with mild depression after the death of his
daughter was caused by witnessing the accident or the distress associated with
his fear for his daughter's well-being after she was struck by the car. Boxhorn's physician testified that during an
examination about a month after the accident, Boxhorn was tearful as he
described the loss of his daughter. The
doctor thought Boxhorn was somewhat depressed and prescribed an antianxiety,
antidepression drug. A month later
Boxhorn seemed better. The doctor
attributed Boxhorn's depression to the death of his daughter. On cross-examination, he acknowledged that
the depression resulted from Boxhorn missing his daughter's companionship.
We conclude that the
doctor's testimony was insufficient to establish that Boxhorn suffered
emotional distress as a result of witnessing the accident or its gruesome
aftermath. The doctor's testimony only
supports an inference that Boxhorn suffered depression because of loneliness
upon the death of his daughter.[7] The shock and grief growing out of the death
of a close family member is not compensable emotional distress independent of a
claim for loss of society and companionship.
Id. at 658, 517 N.W.2d at 445. Thus, a claim for the negligent infliction of emotional distress
was not supported by the evidence.
Because an award for that claim was incorporated in Boxhorn's damages
for past pain and suffering, that damages award is reversed.[8] On remand, the trial court is instructed to
grant a new trial on damages for Boxhorn's past pain and suffering as
distinguished from a claim of negligent infliction of emotional distress.
We summarily dispose of
the cross-appeal. Boxhorn and the
estate of Lynn Boxhorn made a joint offer of settlement. Boxhorn sought double costs and 12% interest
under § 807.01(4), Stats.,
when the jury's verdict was in excess of the offer. The trial court correctly ruled that the joint offer of
settlement was not in compliance with § 807.01 and that double costs and interest
were not recoverable. See White
v. General Cas. Co. of Wis., 118 Wis.2d 433, 438-39, 348 N.W.2d 614,
617 (Ct. App. 1984).
No costs to either
party.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]
Together the trial court's instructions provided:
A driver has a duty to exercise ordinary care to keep a careful
lookout ahead and about him or her for the presence or movement of other
vehicles, objects or pedestrians that may be within or approaching the driver's
course of travel. In addition, the
driver has a duty to use ordinary care to look out for the condition of the
highway ahead and for traffic signs, markers, obstructions to vision and other
things that might warn of possible danger.
To satisfy this duty of lookout, the driver must use ordinary
care to make observations from a point where the driver's observations would be
effective to avoid the accident.
Additionally, having made the observation, the driver must then exercise
reasonable judgment in calculating the position or movement of persons,
vehicles or other objects.
When approaching an intersection where a marked or unmarked
crosswalk for pedestrians exists, a driver must maintain such a lookout as is
reasonably necessary to avoid striking them and to yield the right-of-way to
pedestrians when they have the statutory right-of-way.
When hazards exist because of highway conditions, volume of
traffic, obstructions to view, weather, visibility or other conditions, care
must be exercised consistent with the hazards.
A person who has the duty to keep a lookout must look with such
attention and care as to see what is in plain sight. If a person looks and does not see what is in plain sight, the
person did not keep a proper lookout, and the person is just as negligent as if
the person did not look at all. A duty
to look means to look efficiently. A
person who looks and fails to see what is in plain sight is in precisely the
position that he or she would be in if he or she did not look at all.
A pedestrian who enters the roadway must use ordinary care to observe timely the presence, location and movement of motor vehicles that may be approaching. When a pedestrian is in the roadway at a place other than a crosswalk, it is the pedestrian's duty to maintain such a lookout as is reasonably necessary to enable the pedestrian to yield the right-of-way to the motor vehicles.
[2] At the beginning of the instruction conference, the trial court informed the parties of the proposed instructions removed from consideration. Wisconsin J I—Civil 1250 was among those the court removed. There was no discussion of any other proposed language to instruct on right-of-way.
[3]
Wisconsin J I—Civil 1250
provides:
The Wisconsin statutes define "right of way" as the
privilege of the immediate use of the roadway and, further provide, that no
person shall be on a roadway for the purpose of soliciting a ride from the operator
of any vehicle other than a public passenger vehicle.
If you find that (pedestrian) was on the roadway for the purpose of soliciting a ride from the operator of any vehicle other than a public passenger vehicle, then it was (pedestrian)'s duty to yield the right of way to an automobile approaching on the roadway.
[4] State Farm contends that the services Lynn performed were akin to the services rendered by one spouse to another and could only be compensated for as loss of society and companionship. We summarily reject this claim because the two did not stand in the relationship of husband and wife. In the absence of that relationship, there would be no cause to instruct the jury on the definition of loss of consortium as it includes "the rendering of material services." See Lambert v. Wrensch, 135 Wis.2d 105, 124-26, 399 N.W.2d 369, 377-79 (1987) (discussing how a homemaker's earning capacity is subsumed in the consortium claim).
[5] State Farm suggests that Boxhorn had a pecuniary gain because he was the beneficiary of his grandchildren's disclaimer of Lynn's bequest of one-half interest in the residence. We reject State Farm's contention that the value of one-half ownership in the residence must be offset against the award of pecuniary loss. Not only is the argument underdeveloped, it lacks merit. Tortfeasors are not to gain the advantage of gratuities which an injured party receives from a third party. Estate of Holt v. State Farm, 151 Wis.2d 455, 461, 444 N.W.2d 453, 455 (Ct. App. 1989).
[6] Boxhorn makes a substantially underdeveloped argument that because he was injured in the accident, he need not satisfy the elements necessary to recover for emotional distress as a "bystander." The argument fails because there is no correlative argument that the award, if only for emotional distress caused by his own injuries, is supported by credible evidence. We could not sustain the award on that basis alone.
[7] Boxhorn's other daughter gave testimony about the change in Boxhorn's emotional well-being since Lynn's death. Her testimony is not sufficient to establish a causal connection between witnessing the incident which caused Lynn's death and Boxhorn's emotional distress. Her testimony is only suggestive of Boxhorn's loneliness.
[8] Because we reverse the award for past pain and suffering, we need not address State Farm's arguments that Boxhorn's counsel argued facts not in evidence or that a claim for past pain and suffering should not include a "bystander's" claim for emotional distress. We note that lumping the emotional distress claim with past pain and suffering is problematic, particularly here where the jury was not given instructions tailored to a claim of negligent infliction of emotional distress.