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COURT OF APPEALS DECISION DATED AND RELEASED MAY 29, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2810
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CAROL VAN CLEVE AND
KEITH
VAN CLEVE, HER
HUSBAND,
Plaintiffs-Respondents,
v.
JEFFREY NEHRING AND
UNITED STATES
FIDELITY AND GUARANTY
COMPANY,
Defendants-Appellants,
AMERICAN FAMILY
INSURANCE GROUP,
Defendant.
APPEAL from a judgment
of the circuit court for Forest County:
ROBERT A. KENNEDY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. This appeal arises from a traffic accident
between Carol Van Cleve and Jeffrey Nehring.
Nehring's liability was stipulated, and only the damages issue was tried
to a jury. The jury returned a verdict
favorable to Carol Van Cleve and her husband, Keith Van Cleve. Nehring and his insurer, United States
Fidelity and Guaranty Company, [collectively Nehring] appeal the judgment.
Nehring raises three
issues on appeal: (1) whether the trial court erroneously refused to instruct
the jury on the use of seat belts; (2) whether the trial court erroneously
refused to give the absent witness instruction; and (3) whether Carol failed to
meet her burden of proof with regard to future damages.
1. Seat Belt Instruction
A trial court has broad
discretion in instructing a jury based on the facts and circumstances of a
case. Fischer v. Ganju,
168 Wis.2d 834, 849, 485 N.W.2d 10, 16 (1992).
"The term 'discretion' contemplates a process of reasoning which
depends on facts that are in the record or reasonably derived by inference from
the record and yields a conclusion based on logic and founded on proper legal
standards." Mullen v.
Coolong, 153 Wis.2d 401, 406, 451 N.W.2d 412, 414 (1990). We sustain the trial court's exercise of
discretion if the record reveals a reasonable basis for it. Id.
An instruction should be
warranted by the evidence and should not be given where the evidence does not
support it. Foss v. Town of
Kronenwetter, 87 Wis.2d 91, 106, 273 N.W.2d 801, 809 (Ct. App.
1978). The instruction should not be
used unless there is evidence before the jury that the injuries were caused by
failure to use an available safety belt.
"[W]here seatbelts are available and there is evidence before the
jury indicating causal relationship between the injuries sustained and the
failure to use seat belts, it is proper and necessary to instruct the jury in
that regard." Bentzler v.
Braun, 34 Wis.2d 362, 387, 149 N.W.2d 626, 640 (1967).
Generally, expert
testimony is necessary to establish how the plaintiff's failure to use the belt
affected the injuries. Holbach v.
Classified Ins. Corp., 155 Wis.2d 412, 416, 455 N.W.2d 260, 262 (Ct.
App. 1990), held that expert testimony was always necessary to establish a
safety belt defense. Generally,
"[t]he effect of seat belts in accidents of a particular type at a
particular speed is not a question of fact to be determined by the average
juror without benefit of specialized knowledge in the form of expert
testimony" (quoting Austin v. Ford Motor Co., 86
Wis.2d 628, 642, 273 N.W.2d 233, 239 (1979) (emphasis omitted)).
Seat belt negligence
relates only to the injuries caused by the failure to use the belt that may
have been additional to or beyond those caused by the accident itself. Foley v. West Allis, 113 Wis.2d 475, 335 N.W.2d 824 (1983). The damages for "incremental injuries
[caused by the failure to use a seat belt] can be treated separately for
purposes of calculating recoverable damages." Id. at 485, 335 N.W.2d at 829. Consequently, those who fail to use seat
belts would be responsible for the incremental harm caused by the failure to
use them.[1]
Nehring
claims that the trial court erred by refusing pattern jury instruction Wis J I—Civil 1277.[2] It was undisputed that Carol was not wearing
a safety belt. Nehring argues that the
testimony of Carol's own expert witness, Dr. James Mullen, was sufficient
to support the instruction. We conclude
that the record supports the trial court's discretionary decision to refuse the
instruction.
Mullen addressed only
briefly the causal relationship between Carol's failure to use her seat belt
and her resulting injuries:
Q.
Okay. You also indicated that
the accident would have resulted in the low back pain. How would that have resulted from the
accident which Carol was involved in?
A.
That would be on a continuation of the -- of the acceleration or
deacceleration type mechanism with the ‑- with the trunk and thorax
basically being accelerated forward at the time of impact and then backward
with rapid acceleration and deacceleration.
The fact that she was not wearing her seat belt leaves her at greater
risk for -- for being accelerated further forward and then to return backward.
....
Q.
And [not wearing a seat belt] did, in fact, have that affect on her
injuries; isn't that correct?
A. It seems to have certainly at least for her
lumbar injury, yes.
The trial court rejected
the instruction, noting:
[Mullen]
touched on it. It was very brief. No foundation for it. He didn't know for sure what speed the car
was going, knows nothing about engineering principles, crash worthiness of
vehicles, has no statistics based on injuries with and without seat belts. I believe that subject is more for an engineering
type of a person. As I recall he said
well, he thought maybe the injuries were increased, at least the lower back
ones, because she was not wearing a seat belt.
I don't believe that's sufficient within the context of the cases that
have discussed it.
The record supports the
trial court's exercise of discretion.
Mullen's testimony opines that Carol was exposed to "a greater
risk" of being accelerated farther forward as a result of not wearing a
seat belt. The doctor believed that the
lower back injury was the result of a rapid acceleration and
deacceleration. The doctor also stated
that the lack of the seat belt "seems" to have affected Carol's
lumbar injury.
The doctor's testimony
does not explain to what extent the lack of a seat belt affected the
injuries. It does not appear the
questions were given with a degree of reasonable certainty within the area of
expertise. On the record before us,
asking the jury to assess the extent of lumbar injury based upon the lack of
the seat belt would have been asking them to speculate.
Nehring further contends
that the appellate court may take judicial notice that failure to wear a safety
belt can result in injury. Nehring
argues that expert witness testimony is not required to establish a safety belt
defense in cases of simple ejection, citing Lukowski v. Dankert, 184
Wis.2d 142, 515 N.W.2d 883 (1994), and Wingad v. John Deere Co.,
187 Wis.2d 440, 523 N.W.2d 274 (Ct. App. 1994).
These cases are not
authority for the proposition advanced.
Neither case addresses the standard to be applied to instruct the jury
on a seat belt defense. Lukowski
was a review to determine whether an arbitrator manifestly disregarded the law
by permitting the defense absent expert testimony. Wingad addressed whether a trial court erroneously
exercised its discretion by rejecting the expert testimony that lack of a seat
belt on a tractor that tipped over would have prevented ejection. In any event, this is not a case of simple
ejection. In this case, Nehring's
vehicle rear-ended Carol's. The trial
court's decision is reasonably based on the record before it.
2. Absent Witness Instruction
Nehring requested the
absent witness instruction with respect to Dr. Rebecca Niehaus and a
chiropractor, Steven Ferch. The trial
court refused the instruction on the basis that Niehaus did not have pertinent
information about the injuries and that Ferch's record and reports were in
evidence.
Nehring argues that the
trial court erroneously denied its request for the absent witness instruction, Wis J I—Civil 410, which provides:
If
a party fails to call a material witness within its control, or whom it would
be more natural for that party to call than the opposing party, and the party
fails to give a satisfactory explanation for not calling the witness, then you
may infer that the evidence which the witness would give would be unfavorable
to the party who failed to call the witness.
A party to a lawsuit
does not have the burden, at his peril, to call every possible witness lest
failure to do so will result in an inference against him. Ballard v. Lumbermens Mut. Cas. Co.,
33 Wis.2d 601, 615, 148 N.W.2d 65, 73 (1967).
"The requirements of the absent material witness instruction should
be narrowly construed to be applicable only to those cases where the failure to
call a witness leads to a reasonable conclusion that the party is unwilling to
allow the jury to have the full truth."
Id. at 615-16, 148 N.W.2d at 73.
Here the record
demonstrates a reasonable basis for the trial court's decision. The Van Cleves offered a satisfactory
explanation for not calling the two witnesses to which the instruction would
have referred. Niehaus saw Carol only
one time shortly after the accident and referred her to the hospital emergency
room. Ferch, a chiropractor, referred
Carol to Mullen, an orthopedic specialist.
The medical records of both Niehaus and Ferch were admitted into
evidence upon stipulation of the parties.
Under these circumstances, it was reasonable for the trial court to
refuse the missing witness instruction.
3. Future Damages
Finally, Nehring argues
that the evidence is insufficient to support the verdict. Specifically, he argues that there is no
proof of Carol's life expectancy and therefore no factual basis to award future
damages. The verdict lumped "past
and future pain, suffering and disability" into one question and the jury
awarded $27,971.[3] Because the verdict lumped past and future
together, we must review the verdict as a whole.
The
standard of review of a jury verdict is that it will be sustained if there is
any credible evidence to support the verdict.
... The credibility of the witnesses and the weight afforded their
individual testimony is left to the province of the jury. Where more than one reasonable inference may
be drawn from the evidence adduced at trial, this court must accept the inference
that was drawn by the jury. It is this
court's duty to search for credible evidence to sustain the jury's
verdict.
Fehring
v. Republic Ins Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595,
598 (1984), overruled on other grounds by Dechant v. Monarch Life
Ins. Co., 1996 LEXIS 48 (Wis. May 8, 1996) (citations omitted).
Credible evidence
supports the jury's damage award. Carol
testified that she was thirty-three years old, married and had three young
children. Before the accident, her
health was generally good. After
Nehring struck her car, she felt lightheaded and disoriented. After being driven home from the accident,
she felt tingling and numbness in her arm and shoulder. She went to Rhinelander Medical Clinic where
Niehaus was so concerned with her symptoms that she put Carol in a cervical
collar, called a rescue squad and sent her to the hospital emergency room. After X-rays confirmed that there were no
broken bones, Carol went home, but experienced soreness through the neck, back,
chest and shoulder.
Carol's symptoms
worsened. She sought chiropractic help,
and then saw Mullen, who prescribed medication and physical therapy. At the time of trial, four years after the
accident, Carol continued to experience pain and believed her problems were permanent. Housework, driving, crafts and doing things
with her children cause pain on a daily basis.
She testified that she has constant pain, every minute, and her doctor
said there was no more that he could do.
We reject Nehring's
argument that the evidence is insufficient for failure to offer proof of
Carol's life expectancy. Although
plaintiff has the burden of proving future damages, the jury could find that,
but for the accident, Carol's health was generally good, and that, at
thirty-three years of age, she would expect to have many years ahead of
her. Here the jury was not asked a
separate specific question relating to future damages. The evidence of record supports the verdict.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] In 1987, § 347.48(2m)(g), Stats., was created to provide that failure to wear a safety belt shall not reduce the plaintiff's recovery of damages caused by the failure to wear a safety belt by more than 15%. The statute expressly states that this limitation does not affect the determination of causal negligence in the action.
[2]
Wis J I—Civil 1277
provides:
The automobile in
which plaintiff was driving was equipped with safety belts. [The verdict] asks whether plaintiff was
negligent in failing to use an available safety belt. ...
If you determine that
plaintiff was negligent in failing to use an available safety belt, you should
answer question ___ which asks whether plaintiff's failure to use the safety
belt was a cause of plaintiff's injuries.
If you determine that the failure to use a safety belt was a cause of plaintiff's injuries, you should then determine what percentage of plaintiff's total damages were caused by the failure to wear an available safety belt.