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COURT OF APPEALS DECISION DATED AND RELEASED November
15, 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. 94-2492
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
THOMAS
W. LANTZ and
MARY
L. LANTZ, adult residents
of the
State of Wisconsin,
MARGO
F. LANTZ, a minor, and
JONATHON
A. LANTZ, a minor,
by
their Guardian ad Litem,
DAVID
H. HUTCHINSON,
Plaintiffs-Appellants,
v.
ROSEMARY
CIESLINSKI, an adult
resident
of the State of Wisconsin,
MILWAUKEE
GUARDIAN INSURANCE
COMPANY,
an insurance corporation,
JENNIFER
C. KIMMET-SOTOS, an adult
resident
of the State of Wisconsin,
ALLSTATE
INSURANCE COMPANY,
a
foreign insurance corporation,
VALLEY
FORGE INSURANCE COMPANY,
a
foreign insurance corporation, and
BLUE
CROSS & BLUE SHIELD
UNITED
OF WISCONSIN,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Walworth County: JOHN R. RACE, Judge. Reversed and cause remanded.
Before
Anderson, P.J., Brown and Snyder, JJ.
PER
CURIAM. Thomas Lantz, his wife, Mary,
and their children, Margo and Jonathon, by their guardian ad litem, appeal from
a circuit court judgment dismissing their claims against Rosemary Cieslinski,
Jennifer Kimmet-Sotos[1]
and various insurers as a result of a collision between Kimmet's vehicle and
Lantz's bicycle. We conclude that there
was juror misconduct because a juror visited the scene of the accident to
develop his own facts about the accident and shared his findings with other
jurors. Consequently, we reverse and
remand for a new trial.
The
automobile-bicycle accident occurred on August 24, 1991, at the intersection of
Interlaken Condo Drive and Highway 50 in the Town of Geneva, Walworth
County. The circumstances under which
the accident occurred were disputed at trial.
Lantz testified that he was bicycling on Interlaken and stopped at the
intersection before crossing Highway 50.
However, Cieslinski, who passed through the intersection immediately
before Kimmet and Lantz collided, testified that Lantz did not stop at the
intersection. Lantz testified that
after he started into the intersection, Cieslinski's vehicle came to a rolling
stop at the stop sign directly across from him, proceeded into the
intersection, did not signal, made a wide left-hand turn into his lane and
headed toward him as if he were "invisible." Cieslinski testified that when she signaled,
moved into the intersection and began her turn, Lantz stopped in the lane she
was entering. Cieslinski swerved onto the
shoulder to get around Lantz and drove away.
Cieslinski then saw Lantz bicycle past the median and into the next lane
where Kimmet's vehicle hit him. The
last thing Lantz remembered before the accident was being confronted by
Cieslinski's car.
Kimmet
testified that she first saw Cieslinski's vehicle when Kimmet was just west of
the intersection. Cieslinski's vehicle
swerved in the right lane near the shoulder, and Kimmet saw Lantz
"balancing or hovering uncertainly to the rear of [Cieslinski's]
car." Without looking in Kimmet's
direction, Lantz moved forward and rode directly in front of her vehicle. Kimmet believed approximately two to three
seconds elapsed from the time she first saw Lantz until she hit him.
The
ability of Kimmet and Lantz to observe and avoid each other before the accident
was disputed at trial. Lantz testified
that while he was stopped at the intersection, he had a clear view across the
street and to the east, the direction from which Kimmet was traveling.
Lantz's
reconstruction expert, Beldon Rich, testified that Kimmet had four to five
seconds to react and avoid the collision.
Dennis Skogen, the defense's accident reconstruction expert, testified
that there was insufficient physical evidence to permit him to give an opinion regarding
the location of the bicycle and two vehicles just prior to the accident and
whether Kimmet could have avoided the accident.
The
jury apportioned negligence as follows:
25% to Cieslinski, 25% to Kimmet and 50% to Lantz. The jurors awarded substantial damages to
Lantz and his family members (hereafter "Lantz"). However, due to the apportionment of
negligence, Lantz did not recover any damages.
On motions after the verdict, Lantz attempted to impeach the verdict by
presenting affidavits regarding juror misconduct. The trial court declined to impeach the verdict and dismissed
Lantz's claims. Lantz appeals.
In
motions after the verdict, Lantz identified several instances of alleged juror
misconduct. We find one incident
dispositive on appeal. Juror
Cornelison's affidavit stated that during deliberations juror Romano remarked
that he had timed himself driving up and down Highway 50 at the accident site
and concluded that Lantz had sufficient time to see oncoming traffic. Juror Resch's affidavit stated that Romano
had visited the intersection and based upon his experiments there concluded
that Lantz had sufficient time to see oncoming traffic.[2]
At
the hearing on Lantz's motions after verdict, Cornelison testified in an offer
of proof that all twelve jurors were present when Romano revealed that he had
visited the scene and conducted experiments.
Resch testified that Romano told the jurors while they were eating
dinner that "he went up and down Highway 50, timed himself and he had
concluded that the blue car [Kimmet] did not have time to stop and that [Lantz]
had a clear view of all oncoming traffic ... and would have had time to cross
or would have had time to see the oncoming traffic." She testified that she knew Romano's request
for a jury view of the intersection had been denied.
The
trial court ruled that Romano's statements did not constitute extraneous and
prejudicial information and declined to accept the jurors' posttrial statements
for verdict impeachment purposes.
Lantz'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 ground
that jurors were prejudiced by extraneous information, the party must first
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;[3] (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).
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). The exercise of discretion requires a
rational reasoning process based on the facts in the record or reasonable
inferences from those facts and the correct application of the proper legal
standards to those facts. See Schnetzer
v. Schnetzer, 174 Wis.2d 458, 463, 497 N.W.2d 772, 774 (Ct. App.
1993).
Here,
the trial court ruled that the jurors'
affidavits and testimony were inadmissible because Romano's statements did not
satisfy the Castaneda three-pronged test for the admissibility of
evidence impeaching a verdict because the statements did not concern
potentially prejudicial extraneous information. We conclude that the trial court erred because it did not apply
the proper legal standard for "extraneous" information to Romano's
statements.
"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) (quoted
sources omitted).
It
is clear that Romano conveyed extraneous information to one or more
jurors. Contrary to the trial court's
express instructions, Romano visited the accident scene and gathered
information which was not presented as evidence in this case and made his own
assessment about the likelihood that Lantz could have avoided the accident.[4] Romano then conveyed this information to one
or more jurors.
The
special verdict form indicates that Romano was the only dissenter on the
special verdict cause questions relating to Kimmet and Cieslinski. It is reasonably possible that he used this
extraneous information to assist him in reaching a verdict in this case and in
arguing for his views during deliberation.
The information Romano gathered and shared with the other jurors is
information from a nonevidentiary source which we would not expect the jurors
in this case to possess, particularly because there was no jury view and the
jurors had been instructed not to investigate the accident scene. Romano's statements did not evince his
subjective mental process; they reflected information he gathered outside of
the courtroom.
Because
Romano inspected the scene to draw his own inferences and made his views known
to some or all of the jurors and because this evidence was potentially
prejudicial, the affidavits and offer of proof reporting Romano's statements
were competent and admissible under § 906.06(2), Stats.
Having
determined that the trial court erred in excluding evidence that the jurors
were exposed to potentially prejudicial extraneous information, we turn to
whether it is reasonably possible that the extraneous information would have
had a prejudicial effect upon a hypothetical average jury. State v. Eison, 194 Wis.2d
160, 177, 533 N.W.2d 738, 745 (1995).
In assessing the possibility of prejudice, we consider "the nature
of the extraneous information, the circumstances under which it was brought to
the jury's attention, the nature and character of the [plaintiff's] case and
the defense presented at trial, and the connection between the extraneous
information and a material issue in the case." Id. at 179, 533 N.W.2d at 745. We independently review the prejudice issue
because such is a question of law. See
id. at 178, 533 N.W.2d at 745.
We
have already discussed the nature of the extraneous information and the
circumstances under which it came to the jury's attention. This case required the jury to assess the
negligence of the defendant drivers and the contributory negligence of the
plaintiff bicyclist. Contributory
negligence was hotly debated and significantly split the jury, according to the
numerous affidavits filed in support of Lantz's motions after verdict. Romano's report of his experiment and his
view that Lantz could have avoided the accident are connected to a material
issue in the case. We conclude that the
extraneous information provided by Romano was prejudicial and requires a new
trial.
Our
holding is supported by recent cases.
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, that is,
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 213-14, 518 N.W.2d at 251-52. Therefore, the verdict was impeached and a
new trial on damages was necessary.
In
Eison, the court held that a juror provided extraneous
information when he brought wrenches to the jury room. See Eison, 194 Wis.2d
at 174, 533 N.W.2d at 743. 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 175, 533 N.W.2d at 744.
In their respondents'
brief, Kimmet and her insurer, Allstate, argue that Romano's comments were made
while the jurors were dining on pizza shortly after they retired to
deliberate. They claim that Romano did
not make any further reference to his visit to the scene. The fact that Romano made his comments while
the jurors were dining does not detract from the fact that extraneous
information was brought to the jury.
Romano disregarded a court order regarding visiting the scene and then
used information he gained at the scene in deliberating on the case.
Because
we reverse and remand for a new trial on the grounds of juror misconduct, we do
not address Lantz's other allegations of juror misconduct and request for a new
trial because the jury verdict was perverse.
By
the Court.—Judgment reversed
and cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] During the
proceeding, Kimmet-Sotos's name changed to Kimmet. We will refer to her as Kimmet throughout the opinion.
[2] Other alleged
instances of juror misconduct included:
(1) a statement by a juror that she had Allstate Insurance and did not
want her insurance premium increasing due to a large verdict; (2) a statement
by another juror, a drivers' education instructor, regarding the
"law" on apportioning negligence; and (3) the statement of another
juror that if 50% negligence was attributed to Lantz, he would receive 50% of
the damages awarded.