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COURT OF APPEALS DECISION DATED AND RELEASED MAY 7, 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. 95-3005-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
AMANDA EARL,
Plaintiff-Appellant,
v.
MILWAUKEE TRANSPORT
SERVICE, INC.,
a domestic
corporation, and
COUNTY OF MILWAUKEE,
a municipal
corporation,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
LAURENCE C. GRAM, JR., Judge. Reversed
and cause remanded with directions.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Amanda Earl appeals from a judgment dismissing her
personal injury claim against Milwaukee Transport Services, Inc., and Milwaukee
County. The trial court granted
Milwaukee Transport's motion for a directed verdict after determining that Earl's
testimony lacked credibility and that the accident was mechanically
impossible. Because the trial court
usurped the jury's function as fact finder to make both of these key
determinations, we reverse the trial court's judgment and remand the matter for
trial.[1]
BACKGROUND
Earl initiated this
lawsuit after allegedly sustaining injuries as she attempted to exit a bus
operated by Milwaukee Transport at a stop in front of Milwaukee County Medical
Complex. At trial, Earl testified that
after waiting for the other passengers to disembark, she slowly exited the bus
at the steps across from the driver's seat.
She stated that when she was nearly out of the bus, the bus's doors
closed on her right hand, arm and shoulder.
Earl told the jury that when she attempted to pull her arm out of the
door, the door flew open and she fell back onto the bus's steps. Earl testified that the bus began to
"crawl" forward. Fearing that
she would be run over by the bus, Earl quickly extracted herself from the door.
The medical evidence
submitted was spotty and inconsistent.
Earl was treated for a slightly swollen hand at the emergency room of
Milwaukee County Medical Complex on the day of the accident. Earl was seen five days later by her
personal physician, who testified that Earl complained of pain in her right
hand but that he did not have objective data to support the existence of an
injury. Earl testified to making
certain additional doctor and hospital visits for diagnosis and treatment of
her shoulder and chest. Hospital
records submitted to the jury indicated that although Earl did seek medical
care at both Mt. Sinai Hospital and St. Mary's Hospital forty-nine and
fifty-one days, respectively, after the accident occurred, these medical records
did not reflect the presence of injuries connected to the alleged accident.
The driver operating the
bus, Aaron Hicke, testified at trial that the accident alleged by Earl never
occurred. Hicke also testified that the
bus allegedly involved was equipped with a safety mechanism, the
"interlock system," which "prevents a bus from moving while the
doors are open, front or rear."
Hicke also testified that this safety system prevents a driver from
throttling a bus while the doors of the bus are open.
Thomas J. Igowsky, the
Assistant Claims Manager of Milwaukee Transport, testified that this was a
"blind" case, meaning a case involving the claim of an accident that
was not also reported by the bus driver or anyone else. Although Igowsky testified that it was
company policy to issue a tracer immediately to discover the identity of the
driver, the tracer in this case was not issued until six months after the bus
company received notice of Earl's claim.
Finally, Hattie Garner,
a volunteer at Milwaukee County Medical Complex on the day of the alleged
accident, testified that Earl requested her to write down the number of the
Milwaukee Transport bus pulling away from the curb. Garner told the jury that she also noted the time of day and
briefly described the driver as a "white male." Garner stated that Earl appeared to be calm.
At the close of the
evidence, Milwaukee Transport moved the trial court for a directed
verdict. The trial court took the
motion under advisement and submitted the case to the jury. After one and one-half days of
deliberations, the jury reported to the trial court that it was deadlocked.[2] The trial court excused the jury, granted
the motion for a directed verdict and subsequently entered judgment dismissing
Earl's complaint.
STANDARD OF REVIEW
The trial court should
grant a motion for a directed verdict only "‘where the evidence is so
clear and convincing that a reasonable and impartial jury properly instructed
could reach but one conclusion.'" Leen
v. Butter Co., 177 Wis.2d 150, 155, 501 N.W.2d 847, 848 (Ct. App. 1993)
(citation omitted). When evaluating the
motion, "the evidence must be ‘viewed most favorably to the party against
whom the verdict is sought to be directed.'" Id. at 155, 501 N.W.2d at 849 (citation
omitted). This court applies the same
standard on appeal, tempered by our deference "‘to the trial court's
better ability to assess the evidence.'"
Id. (citation omitted).
Accordingly, this court will not reverse a trial court determination to
grant "a motion for a directed verdict unless the record reveals that the
trial court was ‘clearly wrong.'" Id.
(citation omitted).
DISCUSSION
As a general matter, "the existence of
negligence is a question of fact which is to be decided by the jury." Ceplina v. South Milwaukee School Bd.,
73 Wis.2d 338, 342, 243 N.W.2d 183, 185 (1976) (footnote omitted). Accordingly, it is for the jury to determine
the credibility of witnesses and to draw the ultimate conclusions as to the
facts. American Family Mut. Ins.
Co. v. Dobrzynski, 88 Wis.2d 617, 630, 277 N.W.2d 749, 755 (1979). "[W]hen conflicting evidence is pointed
out to the jury, the weight to be given to the conflict and the determination
of which version should be believed are matters for the finder of fact to
resolve." Rabata v. Dohner,
45 Wis.2d 111, 117, 172 N.W.2d 409, 411 (1969).
When the trial court
ruled on Milwaukee Transport's motion for a directed verdict, the trial court
focused initially on the alleged mechanical impossibility of the accident and
then considered Earl's apparent lack of credibility:
THE
COURT: The court is going to grant the
motion. I think defense counsel has
done really an excellent job in terms of summarizing the evidence, and one
factor -- certainly an important factor is that it appears that this is
something that mechanically simply could not happen. That's a factor.
Another
factor is the plaintiff as a witness repeatedly testified contrary to things
that were clearly established by the documents in terms of her complaints at
the time, in terms of the timing -- timing was grossly off. I don't think the plaintiff is a dishonest
witness, that's a conclusion that somebody could easily come to with all of
those conflicts, but she clearly is not a credible witness, and I think you do
reach a point where as a matter of law somebody simply is not credible, and you
have that here.
So when you put those factors together, I think
you do have the basis of the court ruling as a matter of law.
The trial court's
remarks disclose that it passed on the credibility of the witnesses and
weighed the conflicting evidence to conclude as a matter of law that the
accident was a physical or mechanical impossibility. The trial court's remarks disclosed that it failed to take into
account the evidence in a light most favorable to Earl and instead fastened on
the inconsistencies in Earl's testimony.
At the same time, the trial court ignored Earl's testimony that she was
initially injured by the door while the bus was stopped at the Milwaukee County
Medical Complex bus stop, testimony not inconsistent with evidence of the bus's
"interlock system." Because
the trial court invaded the province of the jury by judging witness credibility
and resolving conflicts in the evidence, the trial court's decision was
"clearly wrong" within the meaning of Leen. Accordingly, the judgment granting Milwaukee
Transport's motion for a directed verdict must be reversed and the matter
remanded for a new trial.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.