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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 8, 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. 96-0472
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ANN MILLER, and GRANT
MILLER,
Plaintiffs-Respondents,
v.
MASSACHUSETTS MUTUAL
LIFE INSURANCE
COMPANY, and the AETNA
CASUALTY &
SURETY COMPANY,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Douglas County:
MICHAEL T. LUCCI, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Massachusetts Mutual Life Insurance Company, the
operator of a shopping mall, and its liability insurer appeal a judgment
awarding Ann and Grant Miller $323,283.41 for injuries Ann incurred when she
fell on ice at the shopping mall. They
argue that the Millers' attorney made an improper closing argument, that the
Millers failed to present sufficient evidence to justify compensating them for
an electric wheelchair, a converted van and two years of nursing home care
because expert testimony was required on those issues, and that the court
erroneously permitted an ambulance attendant to give expert testimony regarding
safe place compliance. We reject these
arguments and affirm the judgment.
The trial court properly
exercised its discretion when it refused to grant a new trial based on the
Millers' attorney's improper closing argument.
See Smith v. Rural Mutual Ins. Co., 20 Wis.2d 592,
604, 123 N.W.2d 496, 504 (1963). The
Millers' attorney told the jury that an out-of-state insurance company paid the
owner of a horse $2 million when the horse broke its leg.[1] Massachusetts Mutual argues that the
statement comments on matters not found in the evidence, reminded the jury that
the defendant was an insurance company and was distasteful. The trial court instructed the jury to
consider only the evidence presented at trial and that the closing arguments
represented counsels' opinions and were not evidence. The court also instructed the jury that it should not alter the
verdict because the defendant was an insurance company. The jury is presumed to abide by the court's
instructions. State v. Pitsch,
124 Wis.2d 628, 644, 369 N.W.2d 711, 720 n. 8 (1985). Contrary to Massachusetts Mutual's argument, nothing in the
amount of the verdict suggests that the jury disregarded these instructions. While the argument was distasteful, the
trial court properly concluded that it was not sufficiently inflammatory to
warrant a new trial.
Ann and Grant Miller
were allowed to testify that Ann needed an electric wheelchair, a converted van
for transportation, and two years of nursing home care based on actuarial
tables that suggest Ann will live two years longer than Grant. Massachusetts Mutual argues that expert
testimony was required to establish that these expenses were necessary and that
there was insufficient foundation for the Millers' testimony regarding the
price of these items. We disagree. Expert testimony is not necessary unless the
subject is outside of the realm of the ordinary experience of mankind and
requires special training or background.
Vultaggio v. General Motors Corp., 145 Wis.2d 874, 882,
429 N.W.2d 93, 95-96 (Ct. App. 1988).
When the matter is within the area of common knowledge, a lay opinion
will suffice. Id. Where the extent of injury is properly
shown, no expert is required to reach the conclusion that future medical and
nursing care will be required. Crouse
v. Chicago & Northwestern Ry. Co. 104 Wis. 473, 484, 80 N.W. 752,
755 (1899).
Ann testified that she
was unable to walk more than fifteen feet with her walker and that Grant was
required to push her in her wheelchair because she has limited use of one
arm. Her testimony was supported by Dr.
Joseph Henry who testified that Ann could not use her left arm for anything
forceful or heavy. The doctor testified
that walking and weight bearing was limited because of Ann's discomfort. He opined that her use of a wheelchair was
consistent with her condition and would continue for the rest of her life. Dr. Henry also corroborated the need for a
van by the past use of a Medi-Van to transport Ann for clinic
appointments. We conclude that this
eighty-one-year-old woman's need for an electric wheelchair, a modified van for
transporting herself and her wheelchair and the need for nursing home care upon
her husband's death are matters adequately supported by Dr. Henry's testimony
and are not matters requiring additional scientific, technical or specialized
evidence.
The Millers were
competent witnesses to testify to the price of these items. Grant testified that he investigated the
price of wheelchairs, converted vans and nursing home care. Massachusetts Mutual could have
cross-examined Grant regarding the nature of his inquiries. There is no need for expert testimony
regarding the price of these items.
Finally, the court
properly allowed the testimony of the ambulance driver regarding the icy
conditions he found at the mall entrance.
He testified that he had been to many commercial properties over the
years and had generally found that businesses sanded or salted similar icy
patches. This testimony did not
constitute expert testimony. The
ambulance attendant was testifying to his observations and did not provide any
opinion whether the slippery entryway violated the safe place statute.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.