|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
21, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0535
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
DONNA
K. BRACKEN,
Plaintiff-Appellant,
UNIFORMED
SERVICES BENEFIT PLAN, INC.,
Plaintiff,
v.
DANIEL
M. DERSE AND AMERICAN FAMILY
MUTUAL
INSURANCE COMPANY,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Sauk County: VIRGINIA A.
WOLFE, Judge. Affirmed.
Before
Dykman, P.J., Vergeront and Deininger, JJ.
DYKMAN,
P.J. Donna Bracken appeals from a
judgment dismissing her negligence claim against Daniel Derse and American
Family Mutual Insurance Company, his insurer.
The jury found that Derse negligently hit Bracken in the face on
May 18, 1992, but the trial court struck the jury's answers in the verdict
on the issue of negligence, concluding that the facts only supported a claim of
battery, not negligence. Because we
conclude that no credible evidence supports the jury's finding that Derse acted
negligently, we affirm.
BACKGROUND
On
May 18, 1992, Bracken asked Derse if he was going to clean grass clippings off
of their joint driveway. A disagreement
ensued. Bracken and Derse presented
conflicting testimony regarding this disagreement, but it is undisputed that
Derse ultimately struck Bracken in the face with his fist. Bracken brought suit against Derse and his
insurer, alleging that Derse was negligent in causing her injuries.
Prior
to trial, Derse filed revised jury instructions and a revised special verdict,
requesting instructions and questions on the issue of battery and omitting
instructions and questions on the issue of negligence. At the close of evidence, the court agreed
with Derse that this was a battery case and that negligence was not an issue to
be submitted to the jury. Bracken saw
no reason to submit the case to the jury solely on the issue of battery because
Derse did not have insurance coverage for intentional acts. The parties stipulated that both issues
would be submitted to the jury.[1]
The
jury found that Derse did not commit a battery but did negligently cause
Bracken's injuries. The jury attributed
sixty percent of the negligence to Derse and the rest to Bracken. After verdict, Derse moved to dismiss the
complaint on the grounds that there was no credible evidence on which the jury
could have found that Derse was negligent.
The trial court agreed, striking the jury's answers on negligence and
dismissing Bracken's claim. Bracken
appeals.
TRIAL
COURT'S STRIKING OF JURY VERDICT
Bracken
argues that the trial court erred in striking the jury's verdict on the issue
of negligence. "[W]hen the court
changes an answer in the jury's special verdict, or otherwise overturns a jury
finding, we defer to the verdict by applying the traditional
any-credible-evidence standard." Foseid
v. State Bank, 197 Wis.2d 772, 787, 541 N.W.2d 203, 209 (Ct. App.
1995). Thus, "if there is any
credible evidence which, under any reasonable view, fairly admits of an
inference that supports a jury's finding, that finding may not be
overturned." Id. at
782, 541 N.W.2d at 207.
To
maintain a cause of action for negligence, Bracken needed to show a duty of
care on the part of the Derse, a breach of that duty, a causal connection
between the conduct and the injury, and an actual loss or damage as a result of
the injury. See Rockweit
v. Senecal, 197 Wis.2d 409, 418, 541 N.W.2d 742, 747 (1995). In Shannon v. Shannon, 150
Wis.2d 434, 443-44, 442 N.W.2d 25, 30 (1989), the court provided:
A person fails to exercise ordinary care when, without
intending to do any wrong, he does an act or omits a precaution under
circumstances in which a person of ordinary intelligence and prudence ought
reasonably to foresee that such act or omission will subject him or his
property, or the person or property of another, to an unreasonable risk of injury
or damage.
There
is no such thing as negligent battery,[2]
however. See Prosser & Keeton on Torts §§ 9-10
(5th ed. 1984). Intentional torts
cannot be confused with negligence. Bielski
v. Schulze, 16 Wis.2d 1, 18, 114 N.W.2d 105, 113 (1962). "The difference between intent and
negligence, in a legal sense, ordinarily is nothing but the difference in the
probability, under the circumstances known to the actor and according to common
experience, that a certain consequence or class of consequences will follow
from a certain act." Falk v.
City of Whitewater, 65 Wis.2d 83, 86-87, 221 N.W.2d 915, 917
(1974). While negligence involves an
act that a person of ordinary intelligence and prudence ought reasonably to
foresee will subject another person to injury, battery involves an act which
the actor either intends to cause injury or is substantially certain will cause
injury. See McCluskey v.
Steinhorst, 45 Wis.2d 350, 358, 173 N.W.2d 148, 152 (1970) (quoting Restatement (Second) of Torts §
8A).
After
hearing the testimony of Bracken and Derse, the jury could have drawn two competing
inferences regarding Derse's intent in striking Bracken. Neither inference, however, supports the
jury's finding that Derse negligently punched Bracken.
Bracken's
version of the facts was as follows:
[W]hen
I came back from my son's place, I drove up the driveway. I pulled in here. I came out from behind my car.
And I asked Mr. Derse, who is going to clean up the grass clippings, me
or him, because I told him I have no problem with it.
That's when he really got upset. He turned around and swung his arms and took
big steps, and he says, "This is mine.
This is mine. This is
mine."
He came right up in front of me. And he says, "I'm sick and tired of you
harassing my wife and kids." He
says, "I'm going to put a stop to it right now."
He hit me. I didn't know--I went down on my knees,
because they had to take gravel out of my hands, and my knees were
scratched. I became disoriented when I
realized he must have knocked me out.
This
testimony does not support an inference that Derse accidentally struck her in
the face. If the jury believed
Bracken's testimony, it could only conclude that Derse intentionally struck
Bracken and either intended to cause harm or was substantially certain that
harm would result. See Smith
v. Keller, 151 Wis.2d 264, 271, 444 N.W.2d 396, 399 (Ct. App. 1989)
(concluding that the act of hitting another person in the face is so certain to
cause harm that the actor can be said to have intended the harm). Therefore, Bracken's testimony does not
provide any credible evidence on which the jury could have found that Derse
negligently caused her injuries.
Derse
presented a different view of the facts.
Derse testified that he and Bracken were arguing about who should clean
off the driveway when Bracken pushed him and he almost fell down. After he regained his balance, Bracken said,
"Get off my property," and brought her arms up quickly. Derse thought it was a punch. He then testified as follows:
Q: What
did you do?
A: I stepped back and punched.
Q:Was
that a conscious effort on your part?
A:Not
at all. I had no idea until after it
was done that I'd even done it.
Q: Did you intend to strike her?
A:No.
Q:Did
you intend to cause any harm to Mrs. Bracken?
A:No.
....
Q:Did
you have any control over the blow that you struck?
A:No. I didn't
try to punch.
If
the jury believed Derse's testimony, it still could not find that Derse acted
negligently. Restatement (Second) of Torts § 2 cmt. a (1965) provides:
There cannot be an act without volition. Therefore, a contraction of a person's
muscles which is purely a reaction to some outside force, such as a knee jerk
or the blinking of the eyelids in defense against an approaching missile, or
the convulsive movements of an epileptic, are not acts of that person.
If the jury believed that Derse had no control over his
actions and struck Bracken without a conscious effort, it could not find that
he acted with volition. Therefore, it
could not consider his striking of Bracken an act on which to base a finding of
negligence.
Bracken
argues that the trial court should not have disregarded the jury's negligence
verdict, citing Gouger v. Hardtke, 167 Wis.2d 504, 482 N.W.2d 84
(1992). In Gouger, John
Hardtke struck Michael Gouger in the eye with a small piece of soapstone from
approximately twenty feet away. Id.
at 515, 482 N.W.2d at 89. The trial
court concluded that Hardtke's conduct in throwing a soapstone was
substantially certain to result in injury and inferred Hardtke's intent to
injure as a matter of law. Id.
at 509-510, 482 N.W.2d at 87.
The
supreme court reversed the trial court's determination, concluding:
The facts in this
case do not warrant inferring as a matter of law that Hardtke intended to
injure Gouger. The conduct of throwing
a piece of soapstone at another person, even with the intent of hitting that
person, is not so substantially certain to cause injury that a court may infer
an intent to injure.
Id. at 514, 482 N.W.2d at 89.
Likewise, Bracken argues that the question of whether Derse intended to
injure her is a question for a jury, not the court, to decide.
The
facts of this case are distinguishable from the facts of Gouger.
While throwing a small piece of soapstone at another person twenty feet away is
not substantially certain to cause injury, punching another person in the face
is. This case is similar to Smith
v. Keller, 151 Wis.2d 264, 444 N.W.2d 396 (Ct. App. 1989), in which the
facts indisputedly showed that Keller expected or intended to hit Smith. Id. at 267, 444 N.W.2d at
397. As a result, the court concluded
that the jury was improperly given special verdict questions on a negligence
theory. Id. The court stated that "[h]itting
another person in the face is the type of act which is so certain to cause harm
that the person who performed the act can be said to have intended the
harm." Id. at 271,
444 N.W.2d at 399. Likewise, Derse's
act of hitting Bracken in the face was so certain to cause injury that it can
be said that Derse intended the harm.
Therefore, the jury's finding of negligence is not supported by credible
evidence, and the trial court did not err in striking the jury's finding that
Derse negligently struck Bracken.
REVISED JURY
INSTRUCTIONS AND SPECIAL VERDICT
Derse filed revised jury
instructions and a revised requested special verdict before trial, requesting
instructions and questions on the issue of battery and omitting instructions
and questions on the issue of negligence.
Bracken argues that the trial court erroneously exercised its discretion
in permitting Derse to "change the theory of liability in this case the
morning of trial."
The
theory of liability in this case—negligence—was Bracken's theory, not
Derse's. In his answer, Derse denied
that he negligently caused Bracken's injuries.
By requesting a special verdict and jury instructions on the issue of
battery, Derse was requesting instructions consistent with his answer that he
did not act negligently. Contrary to
Bracken's allegation, Derse was not changing his pleadings the morning of
trial. In fact, Derse appears to have
assisted Bracken's case by requesting an instruction on the issue of battery,
not an outright dismissal of the case, when Bracken only alleged negligence in
her complaint.
Trial
courts have wide discretion in deciding what instructions and special verdicts
to give. Nischke v. Farmers &
Merchants Bank & Trust, 187 Wis.2d 96, 112, 522 N.W.2d 542, 549
(Ct. App. 1994). Generally,
instructions need only correctly state the law, and special verdicts need only
fairly present the material issues of fact to the jury. Id. Bracken does not argue that the instructions incorrectly stated
the law or that the special verdict did not present the material issues of fact
to the jury fairly. We conclude that
the trial court did not erroneously exercise its discretion in instructing the
jury on the issue of battery.
MISCARRIAGE OF
JUSTICE
Finally,
Bracken argues that we should reverse the judgment and reinstate the jury
verdict pursuant to our discretionary authority under § 752.35, Stats., because the trial court's
decision results in a miscarriage of justice.
Since we have already concluded that no credible evidence supported the
jury's finding that Derse negligently caused Bracken's injuries, we reject
Bracken's argument.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.