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COURT OF APPEALS DECISION DATED AND RELEASED June 15, 1995 |
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. 93-2815
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
LESLIE A. WATKINS,
Plaintiff-Appellant,
v.
CITY OF MADISON,
d/b/a MADISON METRO
TRANSIT SYSTEM,
and TRANSMIT MUTUAL
INSURANCE CORP.
OF WISCONSIN,
Defendants-Respondents.
APPEAL from a judgment
and an order of the circuit court for Dane County: MARK J. FARNUM, Reserve Judge.
Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER CURIAM. Leslie A. Watkins appeals from a judgment
entered on a jury verdict and from a reconsideration order denying her motion
for a new trial. The issue is whether
the verdict was impeached by the bailiff's affirmative nod in response to a
juror's question on whether Watkins would receive the money awarded. Because we conclude that the bailiff's nod
could not have prejudiced Watkins, we affirm.
Watkins sued the City of
Madison ("Madison Metro") for damages from a slip and fall on a city
bus. The jury awarded a total of
$25,582.04, but apportioned twenty-five percent negligence to Madison Metro and
seventy-five percent negligence to Watkins.
During deliberations, a juror asked the bailiff whether Watkins would receive
the money awarded by the jury in the damage question. The bailiff nodded affirmatively. Although the bailiff's affirmative response was erroneous,
because it disregarded the effect of comparative negligence, it also was
improper because he instructed the jurors on the effect of their verdict
answers. McGowan v. Story,
70 Wis.2d 189, 196, 234 N.W.2d 325, 329 (1975).
Watkins moved for a new
trial and for judgment notwithstanding the verdict arguing that the bailiff
improperly influenced the jurors. After
an evidentiary hearing at which two jurors testified, the trial court ordered a
new trial because it concluded that the bailiff injected extraneous material
that could bias a reasonable juror and that this probably prejudiced the
result. Madison Metro sought
reconsideration and, following another evidentiary hearing, the trial court
granted reconsideration, entered judgment on the verdict and denied Watkins'
motion for a new trial. Watkins appeals
from the judgment and order granting reconsideration and denying her motion for
a new trial.
The issue is whether the
bailiff's gesture, in response to the juror's question, resulted in impeachment
of the verdict. To determine verdict
impeachment, the court must determine whether the improper evidence is
"(1) competent, (2) shows substantive grounds sufficient to overturn the
verdict, and (3) shows resulting prejudice." After Hour Welding, Inc. v. Laneil Management Co,
108 Wis.2d 734, 738, 324 N.W.2d 686, 689 (1982). The parties do not dispute the competence of the evidence, but
focus on the remaining two elements.
Although the bailiff's affirmative gesture was improper and
substantively erroneous, thereby sufficient to overturn the verdict, we
conclude that Watkins has not shown resulting prejudice.
The juror inquired
whether Watkins would receive the money awarded in the damage question. Watkins contends that the bailiff's
affirmative nod precluded vigorous debate on the comparative negligence
questions. However, the juror who
witnessed the nod and testified at both postverdict hearings, dissented to the
comparative question, and commented extensively on the apportionment of
negligence and on damages.[1] The dissenter's comments reflect jury debate
on the comparative negligence questions.
On reconsideration, the
trial court stated that it assumed that the "hypothetical jury follow[ed] the
Court's instructions and determine[d] fault regardless of
consequences." See After
Hour Welding, 108 Wis.2d at 743-44, 324 N.W.2d at 692 (jury decides
case on evidence, according to judge's instructions). We conclude that the bailiff's gesture was harmless. If the jurors followed the trial court's
instructions on apportioning negligence, there was no resulting prejudice. Conversely, if they were misled by the
bailiff to believe that Watkins would receive the amount they awarded, they
would have no reason to distort their answers to the comparative negligence
questions. Although the bailiff's
conduct was improper, it could not have prejudiced Watkins.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.