COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 22, 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. 94-2940
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
THEODORE FROSTMAN and
HELEN FROSTMAN,
Plaintiff-Respondents,
v.
STATE FARM MUTUAL
AUTOMOBILE
INSURANCE COMPANY,
TRICIA
NOTZKE, and
TRANSPORTATION
INSURANCE COMPANY,
Defendants-Respondents,
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE,
and STATE OF WISCONSIN
DEPARTMENT OF
TRANSPORTATION,
Defendants,
SENTRY INSURANCE, a
Mutual
Company, MICHAEL
BORSKI and
PORTAGE COUNTY,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Brown County:
RICHARD G. GREENWOOD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Michael Borski, Portage County and its
insurer (collectively the County) appeal a judgment awarding Theodore and Helen
Frostman damages for injuries arising out of the County's negligent operation
of a snowplow. The County argues that
the Frostmans presented insufficient evidence to support a finding that the
snowplow driver's negligence caused the accident or to support the damage
awards for future medical expenses and loss of consortium. It further argues that even if sufficient
evidence exists to support the finding on causation, no liability should attach
for reasons of public policy. In the
alternative, the County argues that it is entitled to a new trial due to
improper jury instructions, erroneous admission of evidence regarding the speed
of the snowplow, and improper use of an exhibit by the Frostmans' counsel
during closing arguments. We reject
these arguments and affirm the judgment.
Both the County and the
Wisconsin Counties Association premised their arguments on facts that are
inconsistent with the jury's findings.
This court must view the evidence in the light most favorable to the
verdict. Roach v. Keane,
73 Wis.2d 524, 536, 243 N.W.2d 508, 515 (1976). The speed of the snowplow, times and distances involved in the
accident were issues of fact at trial.
We are constrained to resolve all conflicts in the testimony in the
light most favorable to sustaining the verdict.
Evidence presented at
trial that the jury had the right to accept shows that Tricia Notzke was
driving west on a two-lane highway when a snowplow driven by Michael Borski
pulled onto the highway ahead of her and proceeded west. At that time, the highway was in good
driving condition and was neither snow covered nor packed with ice or snow. Shortly after the plow pulled onto the
highway, it pulled over onto the shoulder and, without giving any indication
that it was about to do so, began to plow the shoulder of the road. The driver did not turn on the flashing
amber lights that would warn a motorist of a dangerous activity. Within
seconds, a snow cloud created by the plowing operation completely obscured
Notzke's vision, causing her to wander across the centerline and strike the
Frostman vehicle head-on. Notzke
testified that the incident "happened very quickly" and that she
"had no time to really do anything."
The snowplow driver admitted that he did not check for traffic before he
began plowing, an activity he knew would create a snow cloud. The jury found the County eighty percent
responsible for the accident, Notzke twenty percent.
The Frostmans presented
sufficient evidence to support a finding that the County's negligence was a
substantial factor in causing the accident.
The jury's verdict will be sustained if there is any credible evidence
to support it. Meuer v. ITT Gen.
Controls, 90 Wis.2d 438, 450, 280 N.W.2d 156, 162 (1979). The evidence construed most favorably to
sustain the verdict allows an inference that the snowplow driver suddenly and
unexpectedly created a hazardous situation that directly led to the
accident. The County argues that the
driver's negligence was not a causing fact because Notzke observed the
dangerous condition and nonetheless drove into the snow cloud. This argument is based on a view of the
evidence that the jury need not have accepted.
It is the jury's function to reconcile all inconsistencies in the
testimony and determine whether the County's negligence was a substantial
factor in producing the accident. See
Bovi v. Mellor, 253 Wis. 458, 464, 34 N.W.2d 780, 783 (1948).
The County argues that
even if it is causally negligent, no liability should attach for reasons of
public policy. See Morgan
v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 738, 275 N.W.2d 660, 667
(1979). The County asserts that its
negligence is too remote from the injury to impose liability upon it. We disagree. The snowplow driver's failure to activate his safety lights and
to utilize his mirrors, coupled with his failure to reduce his speed to reduce
the size or density of the snow cloud directly contributed to the
accident.
The County also argues
that imposing liability for snowplow operation places an unreasonable burden on
the County's responsibility for snow removal.[1] As we noted in our earlier decision in this
same case, imposing liability on a County for snowplow operations is not unduly
burdensome because accidents involving snowplows are rare and liability will
only be imposed when the County fails to exercise its duty of ordinary care
when engaging in snowplowing. Frostman
v. State Farm, 171 Wis.2d 138, 143, 491 N.W.2d 100, 102 (Ct. App.
1992). Furthermore, the road was
already in reasonable condition and the snowplow was, in the words of a
disinterested witness, doing more harm than good. We are not persuaded that it would place an undue burden on the
County to subject its drivers to the duty of ordinary care when clearing the
shoulder of the road under these circumstances.
The Frostmans presented
sufficient evidence to support the damage awards for future medical expenses
and loss of consortium.[2] The Frostmans presented evidence that
Theodore faces future hip replacement at a cost of $15,000 and may face various
other surgeries. He will also require
future medication and physical therapy.
The $30,000 award for future medical expenses is supported by this
evidence. Similarly, the jury heard
sufficient evidence to support the $40,000 award to Helen for loss of
consortium. The "day in the
life" videotape portraying the hardships endured by Helen during
Theodore's convalescence supports this award.
The County has not
established any basis for a new trial based on errors at trial. The trial court properly gave the emergency
instruction because the evidence, construed most favorably to Notzke,
established that the emergency was not created by her negligence and that she
lost management and control of her car because she had insufficient time to
deliberate and make an intelligent choice of action. See Lutz v. Shelby Mut. Ins. Co., 70 Wis.2d
743, 754, 235 N.W.2d 426, 432 (1975).
Under these circumstances, it is for the jury to determine whether an
emergency existed that would affect her liability. Misiewicz v. Waters, 23 Wis.2d 512, 516, 127 N.W.2d
776, 778 (1964).
The trial court properly
instructed the jury on the snowplow driver's duty of lookout to the rear. The County argues that the special
instruction created by the court modifies the general instruction on the duty
of lookout to give the impression that the snowplow driver must look to the
rear even if he is not deviating from his course of travel or creating a
hazardous situation. In this case,
because the jury was focused on the driver's lookout at a time when he
undeniably created a hazardous situation, the instruction was appropriate.
The trial court properly
allowed testimony of oncoming vehicles regarding the estimated speed of the
snowplow. The fact that the estimate is
made by a person travelling in the opposite direction goes to the weight of the
testimony, not its admissibility. See
Pagel v. Kees, 23 Wis.2d 462, 468-69, 127 N.W.2d 816, 819
(1964). Furthermore, the precise speed
of the snowplow was not a substantial question in this case. The speed of the snowplow was relevant to
determine whether its driver appropriately adjusted his speed to reduce the
detrimental effects of his plowing and to judge the reasonableness of Notzke's
decision to continue through the snow cloud.
The oncoming vehicles were in a reasonable position to render opinions
of some probative value on these questions.
The County has not
properly preserved the issue whether a diagram was improperly used during
closing argument because the transcript of the closing argument is not included
in the record on appeal. See State
v. Vlahos, 50 Wis.2d 609, 612 n.2, 184 N.W.2d 817, 818 n.2 (1971). We are unable to review whether counsel made
an appropriate argument or the potential prejudice from such an argument.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The County argues at length that it is not possible to efficiently remove snow and "eliminate" the snow cloud. The snowplow driver's negligence is predicated on his failure to reduce the hazard by appropriate warnings, lookout and adjustment of his speed. The testimony that the hazard could not be "eliminated" and the arguments based on that testimony fail to address the driver's ability to reduce the hazard by exercising ordinary care.