|
COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 29, 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(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. 95-3466
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DALE L. LARSON AND
BARBARA A. LARSON,
Plaintiffs-Respondents,
v.
CINCINNATI CASUALTY
COMPANY,
D/B/A THE CINCINNATI
COMPANIES
AND INDIANHEAD GOLF
AND
RECREATION, INC.,
D/B/A
INDIANHEAD GOLF
COURSE,
Defendants-Appellants,
THE UNITED STATES LIFE
INSURANCE COMPANY,
Defendant.
APPEAL from a judgment
of the circuit court for Marathon County:
VINCENT K. HOWARD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Indianhead Golf and Recreation, Inc., and
Cincinnati Casualty Company (collectively, "Indianhead") appeal a
judgment determining that Indianhead was 51% liable for the injuries Dale
Larson suffered in a fall. Indianhead
argues that the apportionment of negligence is clearly erroneous and that the
trial court improperly relied upon facts not in evidence. We reject Indianhead's arguments and affirm
the judgment.
The case was tried to
the court without a jury. The record
reveals that Larson arrived at Indianhead to play golf at approximately 2:30 in
the afternoon. He teed off at
3:54 p.m. and concluded his round about 6 p.m. He retreated to the clubhouse bar until almost 10 p.m. Larson acknowledged that during this
interval at Indianhead, he consumed approximately eight beers and five mixed
drinks. After his fall, his blood
alcohol level tested at .28%.
An inclined ramp from
the clubhouse leads to the parking lot.
When Indianhead renovated its premises in 1976, its plans for the ramp
called for a four-inch-thick concrete slab.
Indianhead eliminated the concrete ramp at a savings of $1,440. The former golf course manager testified
that in place of the proposed concrete ramp, the "members" constructed
a terra-lock ramp over a sand base that would shift every winter. Each spring the manager and his crew would
pick up terra-lock sections, pour new sand, and lay the bricks on top.
An engineer testified
that considering the freeze-thaw cycles in Wisconsin, and that golf spikes
would be worn on the ramp, it was unsafe to use terra-lock because the joints
would wash out, leaving gaps that would readily catch golf spikes. He testified that there is a natural inclination
to pick up speed going down a ramp. If
one foot is caught, tripping is a natural consequence regardless of alcohol
consumption. A landscaper testified
that the terra-lock installation was sloppy, because the installers did not use
a saw to cut the blocks exactly and left broad spaces between the bricks. As a result of the loose installation, the
bricks would slide, leaving gaps far exceeding the 1/16" recommended by
manufacturer's specifications.
Jeffrey Brandt was
Larson's partner on the day in question.
He testified that he observed nothing unusual with respect to Larson's
demeanor or balance. He observed no
impairment of coordination, judgment or speech. Brandt, as former golf league president, testified that wearing
spikes is customary in the clubhouse and that the ramp was unsafe, poorly
maintained and had an irregular surface.
Brandt testified that after Larson fell, Larson spontaneously told him
that he tripped on the ramp, put his left arm out to recover but could not
reach the railing, and fell on his face and mouth. In a statement made to an insurance investigator, Larson
said: "I believe this accident
happened due to jogging down [the] ramp, having too many drinks and getting my
cleat caught in the tile walk way or surface."
There was a great deal
of conflicting testimony with respect to the level that Larson was impaired by
alcohol. Larson, his wife and Brandt
testified that Larson was not significantly affected. Indianhead's medical expert and other lay witnesses testified
that Larson was substantially motor impaired and had difficulty walking.
The trial court found
that the gaps in the bricks were an "initiating factor" in causing
the fall and that even a sober individual could have fallen. It also found that Larson had a
"significant amount of intoxication." The trial court apportioned negligence 51% on the part of
Indianhead and 49% on the part of Larson.[1]
Indianhead argues that
the apportionment of negligence is clearly erroneous.[2] We disagree. Appellate courts do not reverse trial court findings of fact
unless they are clearly erroneous. Fryer
v. Conant, 159 Wis.2d 739, 744, 465 N.W.2d 517, 520 (Ct. App.
1990). Appellate courts search the
record for evidence to support findings the trial court made, not for findings
the trial court could have but did not.
In re Estate of Becker, 76 Wis.2d 336, 347, 251 N.W.2d
431, 435 (1977). When there is
conflicting testimony, the trial court is the ultimate arbiter of the
credibility of the witnesses. Noll
v. Dimiceli's, Inc., 115 Wis.2d 641, 644, 340 N.W.2d 575, 577 (Ct. App.
1983). Appellate courts defer to the trial
court's superior opportunity to observe witness demeanor. In re Estate of Dejmal, 95
Wis.2d 141, 151-52, 289 N.W.2d 813, 818 (1980). We do not substitute our judgment for that of the trial court on
issues of weight and credibility of the evidence unless the evidence is
inherently incredible. In re
Estate of Jones, 74 Wis.2d 607 613 n.10, 247 N.W.2d 168, 171 n.10
(1976). Inherently incredible means to
be "in conflict with the uniform course of nature or with fully
established or conceded facts." Chapman
v. State, 69 Wis.2d 581, 583, 230 N.W.2d 824, 825 (1975).
The trial court found that the terra-lock was
installed in such a way as to cause a person wearing golf cleats to become
stuck momentarily. The record discloses
ample evidence to support the finding that Indianhead's negligent installation
and maintenance of the ramp was a substantial factor in causing Larson to
fall. The court concluded that the use
of terra-lock was not negligent, but the manner of installation was.
There was also ample
evidence of Larson's intoxication, and this evidence was not disregarded by the
trial court. The court rhetorically
asked whether the negligent installation was causal in view of the "high
level of intoxication." The trial
court weighed the evidence and determined that Indianhead's causal negligence
was slightly greater than Larson's under the facts and circumstances
presented. This it was entitled to
do. The apportionment of negligence is
a matter for the trier of fact, and when more than one reasonable inference may
be drawn from the evidence, we accept the inference drawn by the trier of
fact. Voigt v. Riesterer,
187 Wis.2d 459, 467, 523 N.W.2d 133, 136 (Ct. App. 1994).
It is reasonable for the
trial court to conclude that the level of Larson's negligence did not exonerate
Indianhead from all liability. Evidence
of intoxication is a proper consideration in determining negligence only if it
is found that the amount of alcohol consumed so affected the person as to
appreciably lessen or impair his ability to exercise ordinary care for his own
safety. Klinzing v. Huck,
45 Wis.2d 458, 466 n.4, 173 N.W.2d 159, 163 n.4 (1970). The record discloses conflicting testimony
to the degree that Larson's intoxication impaired his abilities. Larson conceded some contributory
negligence. The trial court was
entitled to weigh this testimony and attribute weight and credibility as it saw
fit. See State v. Doyle,
96 Wis.2d 272, 289, 291 N.W.2d 545, 553 (1980) (lay witnesses are competent to
testify to intoxication based upon their observations of the subject).
The trial court found
that the "negligence is closer to equal between the parties." The finding of 49% negligence on the part of
Larson recognizes that Larson's alcohol consumption affected his ability. Nonetheless, based upon the testimony of
Larson's engineer and other witnesses, the trial court was also entitled to
attribute a substantial degree of negligence to Indianhead for constructing an
unsafe walkway.
Next, Indianhead argues
that the trial court committed reversible error when it considered facts not in
evidence. Larson contends that the
trial court erroneously stated that intoxication "is an individual
thing" and that Larson might have tolerated a .30% blood alcohol level
"quite well."[3] Indianhead argues that the trial court
substituted its own opinion for unchallenged medical expert opinion that a
blood alcohol concentration of .30% is stuporous. We disagree. Taken in
context, the court's observations reflected its weighing of the conflicting
testimony concerning the degree to which Larson's abilities were impaired. The trial court compared the medical
testimony with the testimony of lay witnesses.
It noted that after the fall, although injured and bleeding, Larson
picked himself up, walked into the building, walked to the car, and from the
car to the hospital. The record shows
evidence that Larson behaved rationally, rebutting the evidence that medically
he should have been in a stupor. We are
unpersuaded that the trial court erroneously relied on evidence not of
record. However, we conclude that to
the extent that its comments could be interpreted to have done so, any such
error would be harmless in view of the sufficient evidence to support its judgment.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] The trial court initially attributed 55% negligence to Indianhead, but reduced it to 51% on motions after trial.