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COURT OF APPEALS DECISION DATED AND RELEASED August
9, 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. 94-1938
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
KEVIN
D. NELSON,
Plaintiff-Appellant,
STATE
OF WISCONSIN,
DEPARTMENT
OF SOCIAL SERVICES,
Involuntary Plaintiff,
v.
KARL
HEICHLER,
KATHERINE
HEICHLER and
WILSON
MUTUAL INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Washington County: JAMES B. SCHWALBACH, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
PER
CURIAM. Kevin D. Nelson appeals from a
judgment dismissing his claims against Karl Heichler, Katherine Heichler and
their insurer, Wilson Mutual Insurance Company. We conclude that:
(1) Nelson did not successfully impeach the jury verdict;
(2) the trial court properly instructed the jury; and (3) the trial
court properly crafted the special verdict.
Therefore, we affirm.
The
following facts are undisputed on appeal.
The Heichlers kept a variety of animals on their farm, including horses
and goats. Katherine hired Kevin Nelson
and his assistant, Corey Schultz, to repair a fence on the farm. While Nelson and Schultz were working on the
fence, Karl asked them to catch a goat, "Rambo," which had escaped
from the barn.[1] Schultz and Nelson chased the goat through a
pasture in which other animals, including a mare named "Sugar," were
located. The goat apparently ran up to
the mare and rammed its horns into the mare's side. This caused the horse to kick Nelson just below the knee,
fracturing his leg. Karl stipulated
that Nelson was injured in this manner, although he did not observe the
incident occur. Neither Karl nor
Katherine supervised Nelson and Schultz as they attempted to capture the goat.
Katherine
saw the goat escape from the barn.
Believing that Nelson and Schultz would be able to capture the goat, she
prepared to leave the farm. However,
when she saw Nelson, Schultz and the animals running in the pasture, she was
concerned that the animals were exerting themselves in the extreme heat. She yelled at the men to stop chasing the
animals, but they did not hear her. She
followed the two men over the crest of the hill and when she reached the top of
the hill, she saw Nelson lying face down in the pasture, injured.
Katherine
testified that the goat never exhibited threatening behavior and she has never
been informed of any incident where the goat injured someone. Karl testified that the goat liked to
break free from his restraints, jump fences and eat flowers. He denied that the goat was mean, although
he conceded that it was mischievous. He
testified that the mare never exhibited threatening behavior or injured anyone.
Schultz
testified that while he and Nelson were chasing the goat, he saw the goat
approach the mare. Schultz could not
remember if Nelson had grabbed the goat or if he was in the process of grabbing
the goat when the goat spooked the horse, causing it to rear up and kick
Nelson.
The
jury found Karl was not negligent in managing and controlling the animals at or
about the time of Nelson's accident and that Nelson was not negligent with respect
to his own care and safety. The trial
court concluded that the evidence did not warrant Katherine's inclusion on the
special verdict. Consistent with the
instructions on the special verdict, the jury determined Nelson's damages
($143,338).
The
trial court rejected Nelson's attempt to impeach the verdict as the product of
a juror's improper influence. Nelson's
attempt to impeach the jury's verdict is governed by § 906.06(2), Stats., which provides:
Upon
an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the jury's
deliberations or to the effect of anything upon the juror's or any other
juror's mind or emotions as influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror's mental processes in
connection therewith, except that a juror may testify on the question whether
extraneous prejudicial information was improperly brought to the jury's
attention or whether any outside influence was improperly brought to bear upon
any juror. Nor may the juror's
affidavit or evidence of any statement by the juror concerning a matter about
which the juror would be precluded from testifying be received.
In
order to determine whether a party is entitled to a new trial on the grounds
that jurors were prejudiced by extraneous information, the party must
demonstrate that a juror's testimony is admissible under § 906.06(2), Stats., by establishing that: (1) the
juror's testimony concerns extraneous information, not the deliberative process
of the jurors; (2) the extraneous information was improperly brought to the
jury's attention; and (3) the extraneous information was potentially
prejudicial. Castaneda v.
Pederson, 185 Wis.2d 199, 209, 518 N.W.2d 246, 250 (1994) (quoted
source omitted). Section 906.06(2)
prohibits juror testimony regarding statements made during deliberations or
about the deliberative processes of the jurors. Id.
The
trial court must first decide whether to admit or exclude the juror's testimony
at a hearing on the motion for a new trial.
Id. at 208-09, 518 N.W.2d at 249-50. Questions regarding the admissibility of
evidence are entrusted to the trial court's discretion. See Gonzalez v. City of
Franklin, 137 Wis.2d 109, 139, 403 N.W.2d 747, 759 (1987).
In
support of his motion for a new trial, Nelson offered the affidavits of ten
jurors stating that they were influenced by a juror who had prior jury
experience and led them to believe that their answers to the negligence
questions were immaterial and Nelson would recover damages if they awarded
them. For example, juror Schmidt's
affidavit stated that not only did she intend for Nelson to receive the entire
amount of damages set forth in the special verdict, she also believed Karl was
negligent and that his negligence caused Nelson's injuries. Had she not been misled by another juror as
to the significance of the first five questions on the special verdict dealing
with negligence and causation, she would have apportioned negligence so that
Nelson's negligence did not exceed Karl's.
"Extraneous" information is information which
a juror obtains from a non-evidentiary source, other than the "general
wisdom" we expect jurors to possess.
It is information "coming from the outside." The term does not extend to statements which
simply evince a juror's subjective mental process.
State v. Messelt, 185 Wis.2d 254, 275, 518 N.W.2d 232, 241 (1994)
(citations and quoted sources omitted).
In
Castaneda, the supreme court ordered a new trial on damages
because a juror researched and brought into the jury room information about
average medical malpractice awards. Castaneda,
185 Wis.2d at 206-07, 518 N.W.2d at 249.
The court found that the jurors' affidavits detailing this occurrence
concerned extraneous information, i.e., information which was "neither of
record nor the `general knowledge' we expect jurors to possess." Id. at 209, 518 N.W.2d at 250
(quoted source omitted). The Castaneda
court noted that the extent of damages was a material evidentiary issue at
trial and the juror's outside information about average medical malpractice
awards was irrelevant to the determination of the plaintiff's damages. Id. at 213, 518 N.W.2d at
251-52. Therefore, the verdict was
impeached and a new trial on damages was necessary.
In
State v. Eison, Nos. 93-3144-CR, 93-3145-CR, 93-3146-CR, 93‑3147‑CR,
slip op. at 1 (Wis. June 22, 1995), the court held that a juror provided
extraneous information when he brought wrenches to the jury room. The wrenches were not evidence in the case
and the jurors' experiments with them did not draw upon the general knowledge
or wisdom that jurors are expected to bring to their deliberations. Id. at 9.
In
this case, in contrast, the jurors' affidavits described the subjective mental
processes of the jury during deliberation and did not demonstrate that the jury
had been exposed to extraneous information.
See Messelt, 185 Wis.2d at 275, 518 N.W.2d at
241. We conclude that the trial court
properly exercised its discretion in denying Nelson's motion for a new trial on
the basis of juror misconduct because there was no evidentiary basis for
granting the motion. See After
Hour Welding, Inc. v. Laneil Mgmt. Co., 108 Wis.2d 734, 740, 324 N.W.2d
686, 690 (1982).
Nelson's
second claim on appeal is that the trial court erroneously failed to give his
requested instruction to the jury.
Because this issue is inadequately briefed, we will not address it. See Post v. Schwall,
157 Wis.2d 652, 657, 460 N.W.2d 794, 796 (Ct. App. 1990).
We
turn to Nelson's claim that the trial court erroneously declined to give the
entire text of Wis J I—Civil 1391,
"Liability of Owner or Keeper of Animal: Common Law." It is within the trial court's discretion to
instruct the jury and if its instructions adequately cover the law, we will not
disturb the exercise of discretion. Wingad
v. John Deere & Co., 187 Wis.2d 441, 454, 523 N.W.2d 274, 279 (Ct.
App. 1994). A trial court may not
instruct the jury on an issue which finds no support in the evidence. Lutz v. Shelby Mut. Ins. Co.,
70 Wis.2d 743, 750, 235 N.W.2d 426, 431 (1975). The evidence must be viewed in the light most favorable to the
party requesting the instruction. See
id. at 754, 235 N.W.2d at 433.
Nelson
asked the trial court to read Instruction 1391
in its entirety. The instruction
states:
An owner (keeper)
of a(n) (insert name of animal) is deemed to be aware of the natural
traits and habits which are usual to a(n) (animal) and must use ordinary
care to restrain and control the animal so that it will not in the exercise of
its natural traits and habits cause injury or damage to the person or property
of another.
In addition, if an owner (keeper) is aware or
in the exercise of ordinary care should be aware that the animal possesses any
unusual traits or habits that would be likely to result in injury or damage,
then the owner (keeper) must use ordinary care to restrain the animal as
necessary to prevent the injury or damage.
(A person is said
to be a keeper of an animal if, even though not owning the animal, the person
has possession and control of it or if the person permits another person who is
a member of (his) (her) family or household to maintain the animal on (his) (her)
premises.)
The
trial court gave the jury the first paragraph of the instruction but declined
to give the rest due to a lack of evidence.
Nelson's appellate argument focuses on the second paragraph of the
instruction. The court found no
evidence that the goat and the horse were different from any other goat or
horse or that either animal had ever injured anyone. On appeal, Nelson does not point to any evidence that either Karl
or Katherine was aware, or in the exercise of ordinary care should have been
aware, that the animals possessed any unusual traits or habits which would
likely result in injury or damage.
Nelson relies upon Karl's statement that he was aware of the natural
trait of horses to kick and possibly injure human beings. However, this does not answer the question
posed by the second paragraph of the jury instruction.[2] There was no evidence warranting the second
paragraph of the instruction.
Nelson's
third issue is whether the trial court should have determined as a matter of
law that both Karl and Nelson were negligent, leaving the jury to decide
comparative negligence. The trial court
should not direct a verdict unless "the evidence gives rise to no dispute
as to the material issues or when the evidence is so clear and convincing as
reasonably to permit unbiased and impartial minds to come to but one
conclusion." Holloway v.
K-Mart Corp., 113 Wis.2d 143, 150, 334 N.W.2d 570, 574 (Ct. App. 1983)
(citation omitted). Here, the evidence
as to whether Nelson and Karl exercised ordinary care was in dispute and
susceptible to competing inferences.
Therefore, it was for the jury to decide whether Karl exercised ordinary
care in having Nelson retrieve the goat and whether Nelson exercised ordinary
care in attempting to catch the goat.
Finally,
Nelson argues that because Katherine owned the goat and the horse, she should
have been included on the special verdict or held strictly liable for Nelson's
injuries under § 172.01, Stats. On motions after the verdict, the trial
court ruled that simply owning the animal did not make Katherine liable at
common law for Nelson's injuries. The
trial court further concluded that § 172.01 did not apply.
Section
172.01, Stats., prohibits
stallions and billy goats from running at large and imposes liability upon the
owner or keeper of such an animal. We
agree with the trial court that § 172.01[3]
does not apply to this case. First, the
horse which kicked Nelson was a mare, not a stallion.[4] Second, "running at large" means
that an animal has escaped from its enclosure and entered another's
property. See Reuter v.
Swarthout, 182 Wis. 453, 455‑56, 196 N.W. 847, 848 (1924); see
also Fringer v. Venema, 26 Wis.2d 366, 369‑70, 132
N.W.2d 565, 568 (1965). Here, the horse
and the goat were on the Heichlers' fenced-in property. Therefore, they were not running at large. Accordingly, § 172.01 did not apply,
and the trial court properly excluded Katherine from the special verdict. Fiumefreddo v. McLean, 174
Wis.2d 10, 26, 496 N.W.2d 226, 232 (Ct. App. 1993) (formulating a special
verdict is within the trial court's discretion).
The
trial court also properly excluded Katherine from the special verdict. As stated earlier, there was no evidence
adduced at trial that the goat and the horse possessed any unusual trait or
habit which would be likely to result in injury or damage or that Katherine was
aware of any natural trait of the horse or goat which would cause injury or
damage of the type suffered by Nelson.
Katherine's knowledge that the goat ate flowers and broke his chain did
not require her inclusion on the special verdict because that behavior was
unrelated to Nelson's injury.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Karl required
assistance because he was unable to exert himself due to health reasons. The day before, Nelson and Schultz captured
a goat on the Heichlers' farm without incident.
[2] We reject the
respondents' suggestion that Nelson waived his right to object to the jury
instructions in this case. Nelson
submitted a proposed instruction, which was rejected, and also asked the trial
court to read all of Wis J I—Civil
1391. The trial court's refusal to use
a proposed instruction is tantamount to an objection to the instruction which
is actually given.
[3] Section 172.01, Stats., states:
No stallion over one year old, nor bull over six months old, nor boar,
nor ram, nor billy goat over four months old shall run at large; and if the
owner or keeper shall, for any reason, suffer any such animal to do so the
owner or keeper shall forfeit five dollars to the person taking it up and be
liable in addition for all damages done by the animal while so at large,
although the animal escapes without the fault of such owner or keeper.