COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
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. 94-2962
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
SECURA INSURANCE,
A MUTUAL INSURANCE
COMPANY,
Plaintiff-Appellant,
THOMAS WALSH and
JUNE WALSH,
Involuntary-Plaintiff-Appellants,
v.
STEVE BOSHARDY, JR.
and
FRED J. BRACH, d/b/a
B&B
CARPENTRY, and
AMERICAN FAMILY
MUTUAL INSURANCE CO.,
Defendant-Respondents.
APPEAL from a judgment
of the circuit court for Columbia County:
LEWIS W. CHARLES, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront, J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Secura Insurance appeals from a judgment in favor of
Steve Boshardy, Jr.; Fred Brach, d/b/a B&B Carpentry, and American Family
Mutual Insurance Company dismissing Secura's motion for judgment
notwithstanding the verdict and, in the alternative, a new trial. The issues are: (1) whether the trial
court erred when it refused to give a res ipsa loquitur jury
instruction; (2) whether the trial court erred when it refused to instruct
the jury regarding an alleged breach of contract; and (3) whether the
jury's verdict is supported by the evidence.
We affirm.
The home of Thomas and
June Walsh was destroyed by fire. The
home had been built by B&B Carpentry and its subcontractors. The fire occurred about one hour after
Thomas Walsh lit a wood-burning stove on the first floor. There were two fireplaces in the home, a
wood-burning fireplace on the first floor and a gas-burning fireplace on the
second floor. B&B Carpentry or its
subcontractors did all of the work on the home except the final connection of
the gas-burning fireplace to the pipes supplying propane to it on the second
floor, which they agreed Walsh could do because of his extensive experience
doing that type of work.
Secura Insurance first
argues that the trial court erred in refusing to give an instruction on res
ipsa loquitur. The doctrine of res
ipsa loquitur, or "the thing speaks for itself," allows a
fact-finder to draw an inference that a defendant was negligent in certain
circumstances. A jury should be
instructed on res ipsa loquitur when:
(a) either a laymen is able to
determine as a matter of common knowledge or an expert testifies that the
result which occurred does not ordinarily occur in the absence of negligence,
(b) the agent or instrumentality causing the harm was within the
exclusive control of the defendant, and (c) the evidence offered is
sufficient to remove the causation question from the realm of conjecture, but
not so substantial that it provides a full and complete explanation of the
event.
Peplinski
v. Fobe's Roofing, Inc., 193 Wis.2d 6, 17, 531 N.W.2d 597, 601
(1995).
The trial court refused
to give the res ipsa loquitur jury instruction because it concluded that
B&B Carpentry did not have exclusive control of the instrumentality that
caused the fire. Secura Insurance argued
that the fire was caused by an electrical problem originating in the chimney
chase, which was constructed by B&B Carpentry and, thus, within its
exclusive control. However, B&B
Carpentry argued that the fire was caused by a propane gas leak, that Thomas
Walsh performed work within the chimney chase when he installed and connected a
gas line to the second-story fireplace and that the area in which the fire
started was therefore not exclusively in its control. The trial court concluded that the chimney chase was not
exclusively within B&B Carpentry's control because Walsh also worked in the
area. Because the res ipsa loquitur
instruction should not have been given unless the agent or instrumentality
which caused the fire was shown to be in the exclusive control of the
defendant, the trial court properly refused to give the instruction.[1]
Secura Insurance next
argues that the trial court erred in refusing to instruct the jury on its
breach of contract claim. We conclude
that Secura Insurance has waived its
right to raise this argument. Although
Secura Insurance originally submitted a proposed verdict form which included a
question asking whether the defendants had breached their contract, Secura
Insurance did not mention this question or make any argument for it during the
verdict conference. Secura Insurance
was asked whether it had any objections to the instructions once they were
formulated, and it said, "none," except for the objections regarding
the res ipsa loquitur instruction.
Secura Insurance has therefore waived its right to raise this
issue. See State v.
Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988), and
§ 805.13(3), Stats.
("Failure to object at the [jury instruction] conference constitutes a
waiver of any error in the proposed instructions or verdict.").
Secura Insurance finally
argues that the jury's verdict was not supported by credible evidence. We will not overturn a jury verdict unless
there is no credible evidence in the record to sustain the jury's finding. Topp v. Continental Ins. Co.,
83 Wis.2d 780, 787, 266 N.W.2d 397, 401 (1978). There was evidence to show that B&B Carpentry was negligent
in the installation of the metal chimney.
It was not inconsistent for the jury to find that the home was
negligently built (apparently that the construction of the chimney elbows was
negligent), but to conclude that the negligence was not a causal factor in the
fire. The jury could have concluded
that the gas which caused the explosion was present for reasons other than the
negligence of B&B Carpentry or of Walsh.
As stated in the respondent's brief, "[f]ires frequently occur
without negligence" and "[i]t is frequent that the origin of fires
cannot be determined." Arledge
v. Scherer Freight Lines, Inc., 269 Wis. 142, 150, 68 N.W.2d 821, 826
(1955). There was credible evidence to
support the jury verdict.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.