COURT OF
APPEALS DECISION DATED AND
RELEASED September
19, 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. 95-1117
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
ELIZABETH
COLLINS,
Plaintiff-Respondent,
v.
ROSE
MILOT AND
MT.
MORRIS MUTUAL INSURANCE COMPANY,
Defendants-Appellants.
APPEAL
from a judgment of the circuit court for Waushara County: LEWIS R.
MURACH, Judge. Affirmed.
Before
Dykman, P.J., Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
PER
CURIAM. Rose Milot appeals from a
judgment finding her negligent for improperly filling a hole on her land,
causing the plaintiff's injury. Milot
raises three issues on appeal:
(1) whether public policy allows liability to be imposed for the
plaintiff's injury; (2) whether there was sufficient medical evidence
supporting the award of future damages; and (3) whether the jury verdict
was perverse. We conclude that
(1) public policy does not impede the imposition of liability for the
defendant's negligence; (2) the award of future damages was based on a
sufficient medical standard; and (3) the jury verdict was not
perverse. We therefore affirm.
BACKGROUND
Rose
Milot owns property in Bancroft, Wisconsin, consisting of a home adjacent to a
grassy lot and a horse corral. Prior to
May 7, 1992, Milot noticed a hole in the ground between the house and the horse
corral. She believed that the hole was
caused by a mole and that her dog dug in the hole trying to catch the
mole. She attempted to fix the hole by
kicking the displaced dirt back into the hole.
Afterward, the hole appeared to be level. However, Milot did not pat down the dirt or make other attempts
to see if the hole was solidly filled.
On
May 7, 1992, Elizabeth Collins went to Milot's home to visit. After their visit, Milot left to run an
errand and asked Collins to feed her horse.
Collins agreed. After feeding
the horse, Collins began walking back to the house. She started to run when she heard the phone ring. She noticed a bare spot in her path, which
appeared to be level, so she made no attempt to avoid it. When she stepped on the spot, the earth
collapsed, causing her to fall and break her wrist and two ribs.
Collins
sued Milot and Mt. Morris Mutual Insurance Company, Milot's insurer. A jury trial was held on December 8,
1994. The jury returned a verdict for
Collins which included an award of $35,000 for future pain, suffering and
disability. The jury attached a note to
the verdict which read, "It's the jury's feeling that this money is to be
used to rehabilitate your arm and improve your life." Milot appeals.
DISCUSSION
First,
Milot contends that public policy precludes the imposition of liability for
injury resulting from a hole caused by an animal on her land. We disagree.
The
law is clear that liability may be imposed on one who, having no duty to act,
gratuitously undertakes to act and does so negligently. Nischke v. Farmers & Merchants
Bank & Trust, 187 Wis.2d 96, 113, 522 N.W.2d 542, 549 (Ct. App.
1994). Thus, while it may be true that
people have no duty to protect others from the actions of wild animals on their
land, once they undertake such duty, they will be held liable for any harm
resulting from their failure to exercise reasonable care. See id. at 114, 522 N.W.2d at
549. Thus, by attempting to fill the
hole caused by the animal, Milot undertook the duty to fill the hole in a safe
and reasonable manner.
Milot
did not fill the hole in a safe and reasonable manner. Instead, by not checking to make sure the
hole was solidly filled, Milot created a latent hazard on her land. Milot herself testified that the land
appeared to be level after she kicked the dirt into the hole. This created the appearance of nothing out
of the ordinary. Only after stepping
into the hole would a person become aware of the danger.
Further,
because the hole was between the horse corral and the house, Milot should have
known that persons would walk through the lot to get to and from the horse
corral. Thus, it should have been
foreseeable to Milot that someone might be injured in the lot if the hole were
not properly filled.
Having
determined that Milot could be found to have breached a duty resulting in
foreseeable damages, we must then look to see if there are any public policy
considerations that would preclude the imposition of liability. See Kelli T-G. v. Charland,
198 Wis.2d 123, 129, 542 N.W.2d 175, 177 (Ct. App. 1995). Recovery may be denied on public policy
grounds because: (1) the injury is
too remote from the negligence; (2) the injury is too wholly out of
proportion to the culpability of the negligent tort-feasor; (3) in
retrospect, if it appears too highly extraordinary that the negligence should
have brought about the harm; (4) allowance of recovery would place too
unreasonable a burden on the negligent tort-feasor; (5) allowance of
recovery would be too likely to open the way to fraudulent claims; or
(6) allowance of recovery would enter a field that has no sensible or just
stopping point. Coffey v. City of
Milwaukee, 74 Wis.2d 526, 541, 247 N.W.2d 132, 140 (1976).
Any
one of these six considerations is sufficient to deny liability. Rieck v. Medical Protective Co.,
64 Wis.2d 514, 518, 219 N.W.2d 242, 244 (1974). However, our discussion is limited to the second, third and
fourth considerations, which Milot argues apply.
First,
Milot argues that public policy prohibits the imposition of liability for holes
caused by animals on one's land, especially in rural areas because it creates
too onerous of a burden on the landowner.
That issue is not before us.
Milot is not being held liable for an animal causing a hole on her land;
rather, her liability stems from her negligence in repairing the hole.
Next,
Milot argues that it was highly unlikely that her actions would have caused
Collins' injury. We disagree. Instead, if a person fills a hole so that it
appears level, but is not, it is foreseeable that someone could step into the
hole and fall, resulting in injuries such as those suffered here. There was no warning to alert Collins that
the ground was unstable. Instead, a
person would only know of the hole once he or she had already stepped into
it. Therefore, it is not so
extraordinary that Milot should know that if the hole were not properly filled,
it could cause injury.
Finally,
Milot argues that Collins' injury is wholly out of proportion with the
culpability of Milot. Milot relies on
the fact that she lives alone on her land to support her argument. However, regardless of Milot's living
status, it is foreseeable that someone could be injured in her lot if he or she
came across an area which appeared level, but in actuality was unstable
ground. Milot knew or should have known
that persons would cross the lot to get to the horse corral and even sent
Collins out to do so. Therefore, it was
foreseeable that someone would be injured in the hole if it were not properly
filled. Accordingly, public policy will
not shield Milot from liability for a hazard on her land that she created.
Next,
Milot contends that the award of future damages was based on an insufficient
medical standard because Collins' doctor used the words "I imagine"
and "I guess" in his testimony.
We disagree.
Medical
opinions do not require absolute certainty.
Pucci v. Rausch, 51 Wis.2d 513, 518, 187 N.W.2d 138, 141
(1971). Instead, it is only required
that physicians base medical opinions on their knowledge of medicine and the
case facts and that their opinions are correct to a reasonable medical
probability. Id. at
518-19, 187 N.W.2d at 141.
While
no particular words of art are necessary to express the degree of medical
certainty required to sustain an award for future damages, it is necessary that
a reasonable interpretation of the expert's words show more than a mere
possibility or conjecture. Casimere
v. Herman, 28 Wis.2d 437, 445 137 N.W.2d 73, 77 (1965). Whether the standard has been met is not
measured by the general use of the words; rather, we must look to the meaning
or sense in which a particular word is used.
Unruh v. Industrial Comm'n, 8 Wis.2d 394, 402, 99 N.W.2d
182, 186 (1959). Accordingly, words
such as "liable," "likely" and "probable" have
been accepted as connoting a reasonable probability as opposed to a mere
possibility. Pucci, 51
Wis.2d at 519, 187 N.W.2d at 142.
We
conclude that Dr. Riordan's testimony regarding the issue of future damages is
stated in terms of reasonable medical certainty notwithstanding the fact that
he used the words "I imagine" and "I guess" in his
testimony. Although Dr. Riordan used
some words that connote some expression of uncertainty, taken as a whole, it is
clear that Dr. Riordan's testimony was an assertion of his medical opinion and
not an expression of his guesswork.
Dr.
Riordan testified that the accident caused Collins to suffer a ten percent
permanent partial disability of the right wrist. He believed, to a reasonable degree of medical certainty, that
Collins would never be totally pain free.
He also testified that Collins' future ability would be limited to
preclude "[p]owerful use of the right wrist in maximum gripping efforts,
climbing or pulling or pushing on the wrist, and also with twisting motions of
the forearm."
The
language used by Dr. Riordan was not so vague as to lead one to believe that
there was only a possibility that future damages would be appropriate. Accordingly, we conclude that his testimony
was based on a sufficient medical standard.
Finally, Milot contends
that the jury verdict was perverse because of the note attached to the
verdict. A verdict is perverse when it
reflects highly emotional, inflammatory or immaterial considerations or an
obvious prejudgment with no attempt to be fair. Fahrenberg v. Tengel, 96 Wis.2d 211, 223, 291
N.W.2d 516, 522 (1980). The trial judge
is in the best position to determine whether the verdict is perverse. Id. at 224, 291 N.W.2d at
522.
The
note attached to the verdict indicates how the jury felt the money should be
spent. It does not establish that the
jury based its award on immaterial or highly emotional considerations. In fact, the note indicates that the jury
felt future rehabilitation would be necessary for Collins. Thus, the award was based on the belief that
Collins would continue to suffer from this injury.
Further,
the verdict is supported by the record.
The doctor testified that Collins acquired arthritis as a result of the
accident. The doctor stated that this
injury would continue into the future.
The doctor opined that Collins probably will have trouble with twisting
motions of the forearm, powerful use of the right wrist and lifting weights in
excess of fifty pounds. Based on
Collins employment in manual labor, future damages are reasonably
foreseeable. Thus, the trial court did
not erroneously exercise its discretion in determining that the verdict was not
perverse.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.