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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 27, 1996 |
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. 95-1694
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
BRYAN NELSON, a/k/a
LAVERN NELSON
and LORI NELSON,
Plaintiffs-Respondents,
AETNA INSURANCE
COMPANY,
Intervenor,
v.
KWIK TRIP, INC.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dunn County:
JAMES A. WENDLAND, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Kwik Trip appeals a judgment awarding Bryan Nelson
damages for injuries allegedly suffered when he slipped and fell from a
footstep on his truck as he was washing the windshield. He brought this action under the safe-place
statute contending that he stepped in a pool of spilled diesel fuel making the
soles of his shoes slippery. The jury
found Kwik Trip 80% responsible for the accident. Kwik Trip argues:
(1) Nelson failed to prove a violation of the safe-place statute
because he introduced no evidence that Kwik Trip had actual notice of the spill
or that the spill existed for a sufficient time to allow a finding of
constructive notice; (2) erroneous evidentiary rulings prevented Kwik Trip
from effectively cross-examining Nelson; and (3) the damage award was
tainted by Nelson's attorney informing the jury that Kwik Trip had insurance
and by an impermissible "per diem" argument. We reject these arguments and affirm the
judgment.
The law regarding
constructive notice under the safe-place statute was summarized in Strack
v. Great Atlantic & Pacific Tea Co., 35 Wis.2d 51, 54-55, 150
N.W.2d 361, 362-63 (1967):
The safe-place statute requires a place
of employment to be kept as safe as the nature of the premises reasonably
permits.
....
Since the owner of a place of employment
is not an insurer of frequenters of his premises ... in order to be liable for
a failure to correct a defect, he must have actual or constructive notice of
it.
....
In order to promote sound policy, we
attribute constructive notice of a fact to a person and treat his legal rights
and interests as if he had actual notice or knowledge although in fact he did
not.
....
Thus when an unsafe condition, although
temporary or transitory, arises out of the course of conduct of the owner or operator
of a premises or may reasonably be expected from his method of operation, a
much shorter period of time, and possibly no appreciable period of time under
some circumstances, need exist to constitute constructive notice.
....
While the use of self-service produce
displays is not negligence as a matter of law, they do create marketing
problems of safety and place upon the store operator the need for greater
vigilance if he is to meet the higher than common-law standard of care required
by the safe-place statute.
....
While
we do not go so far as to change the burden of proof, we think that in
circumstances where there is a reasonable probability that an unsafe condition
will occur because of the nature of the business and the manner in which it is
conducted, then constructive knowledge of the existence of such an unsafe
condition may be charged to the operator and such constructive notice does not
depend upon proof of an extended period of time within which a shop owner might
have received knowledge of the condition in fact. (Citation omitted.)
Because of the nature of
Kwik Trip's business, the trial court properly ruled that Kwik Trip had
constructive notice of the diesel fuel spill.
The fueling area is designed to allow a truck driver to simultaneously
fill tanks on both sides of his truck.
That process necessarily creates a danger of occasional spillage.
We reject Kwik Trip's
argument that Kaufman v. State St. Ltd. Partnership, 187 Wis.2d
54, 64, 522 N.W.2d 249, 254 (Ct. App. 1990), restricts application of the
constructive notice requirement to an indoor setting. In Kaufman, the plaintiff was injured when she
slipped on a piece of banana in a parking lot owned by State Street and shared
by two different retail stores. The
court held that "ordinarily" constructive notice cannot be found when
there is no evidence as to the length of time the condition existed. The court acknowledged, however, that the
length of time viewed as sufficient varies according to the nature of the
business, the nature of the defect and the public policy involved. Id. at 63, 522 N.W.2d at
253. Here, a substantial part of Kwik
Trip's business occurs outdoors. We see
no reason to restrict the constructive notice rule or application of the safe-place
statute to the interior of a gas station.
We also conclude that
the trial court properly exercised its discretion when it limited Kwik Trip's
efforts to impeach Nelson's credibility.
Kwik Trip attempted to show that Nelson used his deceased brother's name
to commit fraud, and sought to present the details of Nelson's criminal history
as well as hearsay testimony regarding an anonymous phone call alleging that
Nelson was bragging about making a fraudulent claim. The jury heard Nelson's explanation for using his brother's name
and was also informed that a warrant existed for his arrest. Kwik Trip then tried to introduce evidence
regarding the details of his conviction.
The trial court properly limited the extent of cross-examination to two
questions: "Have you been
convicted of a crime?" and "How many times?"[1] See Underwood v. Strasser,
48 Wis.2d 568, 571, 180 N.W.2d 631, 632-33 (1970).
The trial court also
limited inquiry into the circumstances surrounding the warrant. A warrant does not constitute proof of a
crime or bad act. Neither the
accusations of criminal conduct nor the details of the crimes is admissible
under § 906.09, Stats.
Kwik Trip also attempted
to attack Nelson's credibility by the use of extrinsic evidence. Specific instances of the conduct of a
witness, other than conviction of a crime, may not be proved by extrinsic
evidence. See § 906.08(2), Stats.
While they may be inquired into on cross-examination under some
circumstances, the trial court retains discretion to disallow the evidence if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or if it causes
undue delay, waste of time, or needless presentation of cumulative
evidence. See § 904.03, Stats.
The trial court properly restricted Kwik Trip's cross-examination to
avoid the introduction of extraneous matters and properly disallowed proof of
specific instances of misconduct by extrinsic evidence.
The anonymous phone call
claiming that Nelson bragged that his claim was fraudulent was inadmissible
hearsay. Kwik Trip argues that the
evidence was offered not to prove the truth of the matter asserted, but only
for impeachment purposes to undermine Nelson's credibility. The proffered evidence does not impeach
Nelson's credibility unless the matter asserted was true. The trial court properly exercised its
discretion when it excluded this testimony because of the danger that the jury
would misuse the hearsay testimony. Id.
Kwik Trip has not
established that it was prejudiced by Nelson's counsel's statements regarding
insurance or his argument regarding per diem damages. The jury was already aware that an insurance company was involved
in this case because its attorney participated in the trial. In addition, a jury would reasonably assume
that a business has liability insurance.
Nelson's attorney's question to Nelson's father, asking whether he was
involved in any "insurance fraud" constituted a small part of the
trial and only informed the jury of something it already had reason to
know. Likewise, counsel's "per
diem" argument did not taint the damage award. The trial court promptly cautioned the jury to disregard that
argument and gave a specific curative instruction. The law presumes that a curative instruction removed the improper
argument from the jury's consideration.
See State v. Booth, 147 Wis.2d 208, 216, 432 N.W.2d
681, 685 (Ct. App. 1988).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.