|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
22, 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. 95-1142
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
KELLY
GILMORE AND
HEALTH
INSURANCE PLAN OF GREATER NEW YORK,
Plaintiffs-Respondents,
v.
LAURICE
WESTERMAN,
Defendant-Co-Appellant,
CAPITOL
INDEMNITY CORPORATION,
Defendant-Third Party Plaintiff-Appellant,
TIMOTHY
HUTZLER,
Third Party Defendant.
APPEAL
from a judgment of the circuit court for Columbia County: RICHARD REHM, Judge. Affirmed in part; reversed in part and
cause remanded.
Before
Eich, C.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Capitol Indemnity Corporation and
Laurice Westerman appeal from a judgment on a jury verdict awarding Kelly
Gilmore $404,620.38 for injuries he received when another patron at a tavern
owned by Westerman pushed him out the door of the tavern causing him to fall
from the fire escape. The issues
are: (1) does the assault and
battery exclusion in Capitol Indemnity's policy insuring the tavern exclude
coverage for the injuries; (2) did the trial court err in denying the
motion to dismiss at the close of plaintiffs' case on Gilmore's claim that
Westerman negligently failed to protect Gilmore from another patron;
(3) was the evidence sufficient to support the jury's verdict that
Westerman negligently failed to protect Gilmore from another patron;
(4) was the trial court correct in determining that, as a matter of law,
there was a violation of the safe place statute; and (5) did the trial
court make evidentiary errors which, together with certain conduct of Gilmore's
counsel, warrant a new trial in the interest of justice.
We
conclude that the assault and battery exclusion in Capitol Indemnity's policy
excludes coverage for Gilmore's injuries, and we therefore reverse the trial
court's ruling that there was coverage.
On all other issues, we affirm the trial court's rulings.
BACKGROUND
Gilmore was injured when
he fell from the fire escape leading from the rear door of The Dump, a tavern
owned by Westerman. He had been pushed
or shoved out of the door by another patron, Timothy Hutzler. This occurred in the early morning hours of
January 1, 1992. Gilmore asserted two
claims against Westerman: (1) she
and her agents were negligent because they knew or should have known of the
assaultive behavior about to take place and failed to use reasonable
precautions to protect Gilmore, and (2) the railings on the fire escape
from which Gilmore fell failed to meet building code standards.
At
the close of plaintiffs' case, Capitol Indemnity moved to dismiss the claim
that Westerman and her agents were negligent for failing to protect Gilmore
from the assault. The trial court
denied the motion.
At
the close of all of the evidence, the trial court found as a matter of law that
Hutzler "did ... assault, batter, or assault and batter" Gilmore and
that all of Gilmore's injuries arose out of that assault, battery, or assault
and battery. The jury found that
Westerman was negligent in failing to protect Gilmore (special verdict question no. 3) and that this negligence was a
cause of Gilmore's injuries. The trial
court answered "yes" to special verdict question no. 5: "[W]as defendant Laurice Westerman
negligent in failing to keep the premises as safe as the nature of the business
would reasonably permit?" The jury
determined that this negligence was a cause of Gilmore's injuries. The jury found Gilmore not negligent with
respect to the incident complained of.
One
of Capitol Indemnity's motions after verdict requested a dismissal on the
ground that its policy does not provide coverage due to the assault/battery
exclusion. Both Capitol Indemnity and
Westerman requested that the trial court change the "yes" answer to
verdict question no. 3 to "no"; grant a new trial on the issue of
Westerman's negligence with regard to the safety of the premises; and grant a
new trial because of evidentiary errors and the misconduct of Gilmore's
counsel. The trial court denied these
motions and entered judgment on the verdict.
INSURANCE COVERAGE
The court determined
that, because of the assault/battery exclusion in Capitol Indemnity's policy,[1]
there was no coverage for the claim that Westerman was negligent in failing to
protect Gilmore, but that there was coverage for the claim under the safe place
statute. Capitol Indemnity argues that
there is no coverage for either claim, while Gilmore argues there is coverage for
both. The interpretation of an insurance
contract is a question of law, which we review de novo. Katze v. Randolph & Scott Mut.
Fire Ins. Co., 116 Wis.2d 206, 212, 341 N.W.2d 689, 691 (1984).
In
finding no coverage for the claim that Westerman was negligent in failing to
protect Gilmore, the trial court relied on Berg v. Schultz, 190
Wis.2d 170, 526 N.W.2d 781 (Ct. App. 1994).
In Berg, we held that an assault and battery exclusion
applied because the plaintiff's injury "[arose] out of" an assault or
battery, regardless of the theory of liability. Id. at 176, 526 N.W.2d at 783. In Berg, as in this case,
there was a claim that a tavern owner breached the duty to protect patrons from
injuries caused by other patrons. Id.
at 173, 526 N.W.2d at 782. We held that
the assault and battery exclusion excluded that claim from coverage. Id. at 179, 526 N.W.2d at 784.
Gilmore
concedes that under Berg, some assault and battery exclusions
preclude coverage for a negligence claim for failure to protect someone from
assault by another. However, he argues
that the exclusion in Capitol Indemnity's policy is so poorly drafted that it
should be given no effect. This
argument has no merit. In Berg,
we found that an almost identical exclusion was not ambiguous and applied to a
bar fight between two patrons. Berg,
190 Wis.2d at 179, 526 N.W.2d at 784.
We agree with Gilmore that Hutzler's actions toward him did not
constitute an "assault" within the meaning of the policy because harm
was done. However, we do not
agree that Hutzler's actions did not constitute a "battery." "Battery" is defined in the policy
endorsement as "[a]ny battering or beating inflicted on a person without
his or her consent." The use of
"battering" in the definition does not make the definition ambiguous
or meaningless. Gilmore offers no
reasonable explanation for why "battering ... inflicted on a person"
does not include the forceful pushing or shoving Hutzler inflicted on
Gilmore. We conclude that it does. We agree with the trial court that, under Berg,
there is no coverage for Westerman's negligence in failing to protect Gilmore.
The
trial court's conclusion that there was coverage for the violation of the safe
place statute was based on its understanding of "concurrent
causes." The court decided that
because the jury had found that Westerman's negligence in failing to keep the
premises safe had caused Gilmore's injuries, there were two concurrent
causes--the assault, battery, or assault and battery which was excluded under
the policy, and the violation of the safe place statute, which was not.
At
the time the trial court decided the post-verdict motion on coverage, Smith
v. State Farm Fire & Casualty Co., 192 Wis.2d 322, 531 N.W.2d 376
(Ct. App. 1995), had just been released and was not yet published. In Smith, we interpreted prior
case law to hold that an independent concurrent cause must provide the basis
for a cause of action in and of itself and must not require the occurrence of
the excluded risk to make it actionable.
Id. at 332, 531 N.W.2d at 380. In Smith, a child was killed while a passenger on a
snowmobile. The driver's homeowner's
policy contained an exclusion for bodily injuries arising out of the operation
of a snowmobile off an insured location.
The child's mother argued that the driver's intoxication and failure to
put a helmet on the child were independent concurrent causes of the accident,
separate from the operation of the snowmobile, and there was coverage for that
negligence. We rejected this argument,
concluding that without the operation of the snowmobile off the insured
location, there would have been no injury.
Id. at 332, 531 N.W.2d at 380. The intoxication and the lack of a helmet were irrelevant without
the operation of the snowmobile. Id.
In
Smith, we stated that the concept of independent concurrent cause
is distinct from the concept of substantial factor used in determining
causation for liability purposes. Id.
at 332-33, 531 N.W.2d at 380-81. We
noted there could be several substantial factors contributing to the same
result, but that did not mean those factors were independent concurrent causes
for purposes of defining the risks for which coverage is afforded. Id.
Smith is dispositive of the issue of coverage for violation
of the safe place statute. Although
that violation, as the jury determined, was a cause of Gilmore's injuries for
liability purposes, it does not follow that it was an independent concurrent
cause for coverage purposes. The safe
place violation was not actionable in the absence of Hutzler's pushing or
shoving Gilmore out of the door and onto the fire escape. The safe place violation is therefore not an
independent concurrent cause, and there is no coverage for the safe place violation.[2]
SUFFICIENCY OF
EVIDENCE
Capitol
Indemnity and Westerman contend that at the close of plaintiffs' case, there
was insufficient evidence to submit to the jury the claim that Westerman was
negligent in failing to protect Gilmore.[3]
A
motion challenging the sufficiency of the evidence at the close of a
plaintiff's case may not be granted unless, considering all credible evidence
in the light most favorable to the plaintiff, there is no credible evidence to
sustain a verdict in the plaintiff's favor.
Weiss v. United Fire & Casualty Co., 197 Wis.2d 365,
388, 541 N.W.2d 753, 761 (1995). This
standard applies both to the trial court and to the appellate court reviewing
the trial court's ruling. Id. In ruling on a motion at the close of
plaintiff's case, a trial court may not grant the motion unless it finds, as a
matter of law, that no jury could disagree on the proper facts or the
inferences to be drawn from them, and that there is no credible evidence to
support a verdict for the plaintiff. Id. Because the trial court is in a better
position to decide the weight and relevancy of the testimony, an appellate
court must also give substantial deference to the trial court's better ability
to assess the evidence. Id.
Gilmore,
Hutzler, the disc jockey, and two patrons testified as part of plaintiffs'
case. Gilmore had grown up in Cambria
and was visiting his family for the holidays.
He had been at The Dump on numerous prior occasions over the past twenty
years. On this visit to Cambria, he
came with his companion. The two of
them had been to The Dump two or three times before New Year's Eve. On New Year's Eve, he arrived at The Dump at
approximately 10:00 or 10:30 p.m.
All
of plaintiffs' witnesses to the incident, including Hutzler, agreed that some
time in the early morning of January 1, 1992, Hutzler grabbed the microphone
and began to sing "Roll out the queers" to the tune of "Roll out
the Barrel," which the disc jockey was playing. Gilmore's testimony was that he was in the men's room when he
heard Hutzler singing, and when he came out, Hutzler came toward him. Gilmore does not remember anything after
that except that he was next out on the fire escape and then on the ground
below.
The
two patrons and the disc jockey differ on the details, but they agree that
Hutzler pushed Gilmore out the door and onto the fire escape. One of the patrons testified that fifteen
minutes passed between the singing of the song and the physical altercation;
the other witnesses put that time interval at thirty to forty-five seconds, a
few seconds, and a few minutes. The
witnesses all agreed that once Hutzler and Gilmore made physical contact, there
was no time to intervene before Gilmore was out the door and then lying on the
ground.
The
trial court determined, and Gilmore appears to concede, that, based on the
evidence presented by Gilmore, there was no opportunity for intervention once
Hutzler and Gilmore made physical contact.
The precise question, then, is whether a reasonable jury could find
that, based on Hutzler's singing of the "roll out the queers" song,
the bartender on duty should have reasonably foreseen that a patron was at risk
of injury and taken some action to control his conduct. We agree with the trial court that this is a
very close question. Since the
bartender on duty first testified as part of the defense, at the close of
plaintiffs' case there was no evidence of what he heard or what he knew about
Hutzler or Gilmore. However, as the
trial court pointed out, there was testimony that Hutzler sang loud enough for
everyone in the bar to hear. Therefore,
it is a reasonable inference that the bartender also heard Hutzler sing. There was also testimony from one patron
that the song was sung fifteen minutes before the altercation. While Gilmore's other witnesses put this time
interval at seconds or a few minutes, the trial court found this patron's
testimony credible. If the jury
believed her testimony, there would have been sufficient opportunity for the
bartender to take some action.
The
more difficult question is whether a jury could reasonably find that Hutzler's
song indicated a threat or risk to a patron or patrons. Keeping in mind the substantial deference we
owe the trial court, we cannot say as a matter of law that no reasonable jury
could so find. The words Hutzler sang,
as Gilmore recounted them, were:
"Roll out the queers, we'll have a barrel of fun. Roll out the queers, we'll have the queers
on the run. Everybody, the gang's all
here." Gilmore testified that
Hutzler went on singing and sang a verse or two. These words could reasonably be interpreted as a desire to remove
homosexuals from the bar, asking others to join in. We do not agree with the defendants that there had to be evidence
that the bartender knew there was a homosexual in the bar. A jury could reasonably infer that Hutzler
was singing the song because he knew there was one or more homosexuals in the
bar and he wanted them out.
It
is true that Gilmore's witnesses who heard the song all testified that they did
not perceive the song as a physical threat to anyone in the bar. And Gilmore testified that he did not
perceive it as a physical threat to himself, although it made him a little
nervous. However, we agree with the
trial court that a reasonable jury could nevertheless find that the song should
have alerted the bartender on duty that a patron or patrons could be at risk.
It
appears that, in addition to challenging the sufficiency of the evidence at the
close of plaintiffs' case, Capitol Indemnity is also challenging the
sufficiency of the evidence to sustain the verdict.[4] In considering whether the trial court
properly denied the motion to change the answer to the question of Westerman's
negligence for failure to protect Gilmore, we look at all the evidence
presented to the jury. The issue in
this context is whether the evidence presented to the jury is sufficient to
sustain the jury's answer "yes."
As in evaluating the evidence at the close of plaintiffs' case, we
consider the credible evidence and reasonable inferences drawn therefrom in the
light most favorable to the plaintiffs, and we affirm if there is any credible
evidence supporting the jury's answer. See
Weiss, 197 Wis.2d at 388, 541 N.W.2d at 761.
We
have already discussed the evidence presented by Gilmore that supports the
jury's verdict. In addition, evidence
presented by the defense supports the verdict.
The bartender on duty at the time of the incident, Dan McCormick,
testified that he had known both Gilmore and Hutzler for many years, and that
he knew that Hutzler made jokes about gays.
However, Hutzler, in his presence, had never caused any person physical
injury because of that person's sexual orientation. On this New Year's Eve, he was not aware of any problems between
Hutzler and Gilmore and Gilmore did not ask for his assistance. He heard the "roll out the queers"
song when he was serving beer at the bar, but he did not know who was
singing. He stated:
I thought it was---I didn't know it was [Hutzler]
singing. I thought it was somebody
else. And I thought, well, I just--I
remember shaking my head and saying, oh, this is stupid. And I couldn't understand that it---the guy
I thought it was was [Gilmore's] friend and classmate. And I thought, well, I just couldn't figure
that out, because I didn't know [Hutzler] was back in the bar at the time.
McCormick
knew Gilmore had been in the bar shortly before, but he did not know if he was
still there. The song did not suggest
to him an impending physical confrontation and it did not occur to him that he
should call the police. He did think he
should find out what was happening. He
did not leave the bar to check. A
couple of minutes later, another bartender, who was off duty, came to use the
phone to call 911. That is how he
learned what happened to Gilmore. He
was the only bartender on duty at that time.
A
reasonable inference from McCormick's testimony is that he thought the song was
or might be directed at Gilmore. A jury
could reasonably infer from McCormick's testimony that he thought he should
investigate what was going on, but did not because he was busy at the bar and
was the only bartender on duty. It is
true that he testified that the altercation happened a couple of minutes later
and he would not have had time to leave the bar to check things out. But the jury could have believed Gilmore's
witness who testified that the time interval was fifteen minutes and decided
that McCormick did have time to investigate.
We conclude the trial court did not err in denying the motion to change
the jury's answer.
SAFE PLACE STATUTE
Capitol Indemnity argues
that the trial court erred in ruling as a matter of law that Westerman was
negligent in failing to keep the premises as safe as the nature of the business
would reasonably permit. As the court
explained in instructing the jury, it answered special verdict question no. 5
"yes" because it determined that the railings on the fire escape did
not comply with the heights required by the building code.
Robert
Schoof, a safety engineering consultant, testified for the plaintiffs and his
testimony was not controverted. He
testified that the guard railing around the upper platform of the fire escape
and the guard railing around the lower or middle level platform was only
thirty-five inches high, and the building code requires that they be forty-two
inches high. Based on Hutzler's
statement that Gilmore went over the railing on the lower intermediate level
platform, it was Schoof's opinion that the additional seven inches on the
railing on that platform would have prevented the fall. Another code violation was the lack of a
railing on the right-hand side, descending.
However, Schoof could not say that railing would have prevented the fall
because the exact path of Gilmore falling down the stairs was not known. Also, the railing on the left side of the
stairway was one inch lower than required by the code. Schoof described this as a technical
violation, but just "at the range of tolerance" and therefore
acceptable from a safety engineering approach.
Capitol
Indemnity contends that in order for a violation of the code to be negligence
"per se," the injured person must be within the class of persons the
code was intended to protect. Gilmore
was not within that class, Capitol Indemnity contends, pointing to Gilmore's
expert's concession that fire escapes are not designed with the thought in mind
that someone is going to be taken out to that fire escape and forcefully thrown
off it.[5]
Resolution of this issue
requires an interpretation of the safe place statute, § 101.11, Stats.
The construction of a statute is a question of law, which we review de
novo. Minuteman, Inc. v.
Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773, 778 (1989).
Section
101.11(1), Stats.,[6]
requires employers to maintain the premises so as to provide employees and
frequenters a place as safe or free from danger as the nature of the premises
reasonably permits. See Anderson
v. Joint School Dist. No. 3, 24 Wis.2d 580, 583-84, 129 N.W.2d 545, 547
(1964). The statute does not create a
new cause of action but it does establish an increased standard of care, the
violation of which is negligence. Gould
v. Allstar Ins. Co., 59 Wis.2d 355, 361, 208 N.W.2d 388, 391
(1973). Failure to comply with a
general safety order applying to places of employment promulgated by the
Department of Industry Labor and Human Relations constitutes a violation of the
safe place statute. Sampson v.
Laskin, 66 Wis.2d 318, 331, 224 N.W.2d 594, 600 (1975).[7]
The
issue is whether Gilmore was a "frequenter" of The Dump. If he was, Westerman owed a duty to him
under the safe place statute. See
Monsivais v. Winzenried, 179 Wis.2d 758, 764, 508 N.W.2d 620,
623-24 (Ct. App. 1993), and Nordeen v. Hammerlund, 132 Wis.2d
164, 169, 389 N.W.2d 828, 830 (Ct. App. 1986).
A frequenter is defined under the safe place statute as "every
person, other than an employe, who may go in or be in a place of employment or
public building under circumstances which render such person other than a
trespasser." Section 101.01(2)(d),
Stats. Gilmore was a frequenter, not a trespasser, because he was at
all times in areas of the tavern maintained for use by patrons. See Monsivais, 179
Wis.2d at 769-772, 508 N.W.2d at 623-27 (tavern patron lost frequenter status
and became trespasser when, after receiving directions to the restroom, he went
in another direction and entered area of tavern not maintained for public use,
without express or implied invitation).
Capitol
Indemnity does not dispute that Gilmore was a frequenter within the meaning of
the safe place statute. Indeed, it does not even refer to this statute in its
argument. Instead, it relies on cases
that decide whether violations of regulations and ordinances that have nothing
to do with the safety of buildings should be considered "safety
statutes," such that a violation is negligence per se. See, e.g., McGarrity v. Welch
Plumbing Co., 104 Wis.2d 414, 312 N.W.2d 37 (1981) (administrative
regulation governing employment of minors); Burke v. Milwaukee &
Suburban Transp. Corp., 39 Wis.2d 682, 159 N.W.2d 700 (1968) (ordinance
regulating bus loading zones). However,
the language of the safe place statute itself provides a plain expression of
legislative intent to protect the safety of frequenters of places of
employment. Nordeen, 132
Wis.2d at 168-69, 389 N.W.2d at 830.
Since
there is no dispute that Gilmore was a frequenter of the tavern and no dispute
that the railings violated the building code, the trial court correctly
determined that, as a matter of law, Westerman violated the statute and was
therefore negligent. Whether that
negligence was a cause of Gilmore's injuries is a separate question. See Fondell v. Lucky Stores,
Inc., 85 Wis.2d 220, 226, 270 N.W.2d 205, 209 (1978). Since there was conflicting testimony on
where and how Gilmore came into contact with the fire escape railings, the
trial court properly submitted the question of cause to the jury.[8]
NEW
TRIAL
Defendants
contend that they are entitled to a new trial in the interest of justice
because of evidentiary errors and conduct of Gilmore's attorney. A trial court's ruling on a motion for a new
trial in the interest of justice under § 805.15(1), Stats.,[9]
is highly discretionary and will not be reversed on appeal in the absence of a
clear showing of erroneous exercise of discretion or an erroneous application
of law. Suhaysik v. Milwaukee
Cheese Co., 132 Wis.2d 289, 303, 392 N.W.2d 98, 104 (Ct. App.
1986). Since defendants do not claim
that the real controversy was not tried, they are not entitled to a new trial
in the interest of justice unless there is a likelihood of a different result
on retrial without the evidentiary errors and misconduct. See State v. Harp, 161 Wis.2d
773, 777-782, 469 N.W.2d 210, 211-14 (Ct. App. 1991).
The
first evidentiary issue is the trial court's refusal to admit into evidence a
letter in Schoof's file from a building inspector for the Department of
Industry, Labor and Human Relations, Buildings and Safety Division, Mr.
Gothard. The letter contained one
sentence: "Upon looking at the
stairway leading from the rear exit of the Dump Tavern, I was unable to find
any code violations." Defendants
argue that on cross-examination, an adverse party may introduce what would
otherwise be inadmissible hearsay to show that the data relied on by an expert
does not support the expert's opinion or that the expert ignored certain data.
A
trial court's decision to admit or exclude evidence is discretionary. We will not reverse it on appeal if it has a
reasonable basis and was made in accordance with the facts of record and
accepted legal standards. State
v. Weber, 174 Wis.2d 98, 106, 496 N.W.2d 762, 766 (Ct. App. 1993).
Schoof
answered yes, on cross-examination, to the question whether he was provided
with and relied on materials given to him concerning earlier investigations by
Gothard. However, in voir dire
by the court, Schoof testified that he misspoke because it was a multiple
question and that he did not rely on the letter in formulating his
opinions. Schoof explained that
Gilmore's counsel gave him a collection of correspondence containing the letter
from Gothard; that he read the letter but did not agree with it; and that he
therefore did not rely on it.
Capitol
Indemnity argues that Schoof read the letter "very critically, so as to
form opinions contrary to those expressed in the letter" and, therefore,
although it is otherwise inadmissible hearsay,[10]
it is admissible on cross-examination.
Capitol Indemnity relies on Karl v. Employers Ins. of Wausau,
78 Wis.2d 284, 254 N.W.2d 255 (1977), and Weber. These cases hold that facts relied on by an
expert may be admitted on cross-examination for the limited purpose of
impeachment and verbal clarity; fair play requires that the opponent may show
that the data did not support the conclusions of the expert or contained
information ignored by the expert. Weber,
174 Wis.2d at 107 n.6, 496 N.W.2d at 766; Karl, 78 Wis.2d at 300,
254 N.W.2d at 262.
The
court considered Schoof's testimony to be that he did not rely on the letter in
formulating his opinion. The court
also noted that the letter was only one sentence and contained no data on which
Schoof could rely. The court expressed
its concern that admitting the letter would, in effect, be admitting the
opinion of another expert, without any foundation and without anything in the
letter itself that permits a fair evaluation of Gothard's opinion.
The
trial court properly exercised its discretion in excluding the letter. Karl and Weber
do not support Capitol Indemnity's position.
Schoof's letter contains no data or facts. Forming an opinion contrary to that expressed in the letter
cannot reasonably be construed as relying on the letter to form an opinion,
given the content of the letter. The
purpose of cross-examination in this context is to test the reliability of
Schoof's opinion by examining him on the way his opinion was reached. The purpose is not to permit admission
through hearsay of another expert's opinion.
The
second evidentiary issue is the trial court's decision to admit the testimony
of Pamela Bloom, a bartender on duty earlier in the evening. Bloom testified that she had been directed
by Westerman, before that evening, not to call the police unless it was
absolutely necessary, an emergency.
Defendants objected at trial on the ground of relevancy. The court permitted the testimony after
hearing extensive argument. According
to the defendants, Bloom's testimony was irrelevant because the evidence
established that there was no time to intervene once Hutzler and Gilmore made
physical contact and that the song was not perceived as physically threatening.
A
trial court's decision on relevancy is discretionary. Chart v. General Motors Corp., 80 Wis.2d 91, 102,
258 N.W.2d 680, 684 (1977). Relevancy
is a function of whether the evidence tends to make the existence of a material
fact more or less probable than it would be without the evidence. State v. Denny, 120 Wis.2d
614, 623, 357 N.W.2d 12, 16 (Ct. App. 1984).
The evidence need not prove a fact in a "`substantial way', but it
must do more than `simply afford[] a possible ground of suspicion against
another person....'" In re
Michael R. B., 175 Wis.2d 713, 724, 499 N.W.2d 641, 646 (1993).
At
the hearing on motions after verdict, the court explained its views on the
relevancy of Bloom's testimony. It
agreed that there was no time to intervene to protect Gilmore once the physical
altercation began. It noted that, based
on the testimony that there were fifteen minutes between the song and the
physical altercation, there was time to intervene then. Whether the song could be interpreted as
something requiring action, such as calling the police, the court considered
"problematic" but possible.
It noted in this context that McCormick, who had greater knowledge of
Hutzler and Gilmore, testified that he thought he should investigate when he
heard the song. Although the court
expressed reservations about the relevancy of the testimony, it concluded it
was relevant "in a limited sense."
In
our view the probative value of Bloom's testimony is slight, but we cannot say
the trial court's decision that it was relevant was unreasonable. We have already held that a jury could
reasonably infer from the singing of the song that it indicated a threat to a
patron or patrons such that some action was required by the bartender. A policy that the police are not to be
called unless there is an emergency could make it more probable that the
bartender on duty would minimize the potential for disruption signaled by the
song.
The
defendants did not object at trial to Bloom's testimony on the ground that,
even if relevant, it was unduly prejudicial.[11] But they did make this argument in support
of their motion for a new trial and they make this argument on appeal. The trial court concluded that because of
the manner in which the testimony came in and the manner in which the balance
of the testimony came in, this testimony did not result in prejudice to the defense
sufficient to justify a new trial.
McCormick and two off-duty bartenders testified that they understood
they were to call the police if they could not handle a problem
themselves. Westerman testified that calling
the police was within the bartenders' discretion. The defendants do not explain how Bloom's testimony, in light of
this other testimony, might have unfairly influenced the jury. Their argument on prejudice is general and
brief. It does not persuade us that the
trial court erroneously exercised its discretion in denying a new trial on this
ground.
Finally,
defendants argue that Gilmore's trial counsel's questions about two individuals
being previously injured on the fire escape were improper and warrant a new
trial. After asking the questions,
Gilmore's counsel acknowledged to the court and opposing counsel that he had no
evidence to present that others had been injured on the fire escape. As soon as the jury was reconvened, the
court instructed the jury that "[t]here is absolutely no evidence to
support these questions" and the jury was to "disregard the questions
entirely."
The
court stated that "if there was a clear ethical violation in this trial,
this is it." However it did not
believe a new trial was warranted both because of the prompt, curative
instruction and because the questions went to the issue of Westerman's
negligence regarding the safety of the fire escape, which the trial court
decided as a matter of law based on noncompliance with the building code. We conclude the trial court properly
exercised its discretion in denying the motion for a new trial on this ground.[12]
By
the Court.—Judgment affirmed
in part; reversed in part and cause remanded.
Not recommended for
publication in the official reports.
[1] The policy's endorsement on assault/battery
provides:
This insurance does not apply to bodily injury or property
damage or personal injury arising out of assault, battery or assault
and battery.
Definitions: Assault: A willful attempt or offer with force or
violence to harm or hurt a person without the actual doing of the harm or hurt.
Battery: Any battering or beating
inflicted on a person without his or her consent.
Assault & Battery: For purposes of
this insurance, this term includes assault and battery, and
specifically includes the ejection or exclusion with force or violence, or
attempt thereof, of any person from the premises by the insured and
his/her/its employees or agents.
(Emphasis in original.)
[2] Gilmore argues that Capitol Indemnity cannot
rely on the exclusion because the insurance policy is not in the record. He states that the existence of the policy
is "conclusively established" in Capitol Indemnity's answer to the
complaint. Apparently, Gilmore means
that the answer conclusively establishes coverage. That is incorrect. In its
answer, Capitol Indemnity admits that it issued a policy to Westerman d/b/a The
Dump, but denies that she was at all times insured for the acts and omissions
alleged in the complaint except as provided in the policy and subject to the
terms, conditions, limitations and exclusions of the policy. The logical application of Gilmore's
argument is that we cannot decide the coverage issue at all. However, the parties agree on the relevant
terms of the policy. They argued the
application of the exclusion twice before the trial court, once on Capitol
Indemnity's summary judgment motion and again on post-verdict motions. On no occasion did Gilmore object because
the policy was not part of the record. We choose to decide the issue.
[3] In addition to the standard instruction on
ordinary negligence, the jury was instructed that Westerman was negligent for
failing to protect patrons at her business if she or her agents "could
have discovered that the acts were being done or were about to be done, and she
could have protected plaintiff Kelly Gilmore by controlling the conduct of the
third person or by giving a warning adequate to enable plaintiff Kelly Gilmore
to avoid harm."
[4] The motion after verdict was brought under
§ 805.14(5)(c), Stats., and
requested that the court change the jury's "yes" answer to special
verdict question no. 3 to "no."
Section 805.14(5)(c) governs a motion "to change an answer in the
verdict on the ground of insufficiency of the evidence to sustain the
answer." Defendants characterized
this motion, before the trial court, as renewing their motion for dismissal at the
close of plaintiffs' case. However, in
the arguments and decision on this motion, the parties and the trial court did
refer to evidence presented by defendants.
The briefs on appeal also refer to some evidence presented by
defendants.
[5] Schoof also testified that the safety
standards for the railings on the fire escape platform are to protect the
public; that they are designed to protect people who are disabled, inebriated,
off balance; and that there are rigorous requirements for fire escapes because
they are supposed to accept people fleeing in panic, people running, and people
falling.
[6] Section 101.11(1), Stats., provides:
Every employer
shall furnish employment which shall be safe for the employes therein and shall
furnish a place of employment which shall be safe for employes therein and for
frequenters thereof and shall furnish and use safety devices and safeguards,
and shall adopt and use methods and processes reasonably adequate to render
such employment and places of employment safe, and shall do every other thing
reasonably necessary to protect the life, health, safety, and welfare of such
employes and frequenters. Every
employer and every owner of a place of employment or a public building now or
hereafter constructed shall so construct, repair or maintain such place of
employment or public building as to render the same safe.
[7] Wisconsin
Administrative Code ch. ILHR 50 contains the building standards
established "for all public buildings and places of employment" to
protect the "health, safety and welfare of the public and
employes." Wis. Adm. Code § ILHR 50.01.
[8] Capitol Indemnity makes two related arguments
regarding special verdict question no. 5, both of which we reject. First, it argues that "[t]he great
weight of the evidence established" that Gilmore went over the railing
that ran along the side of the stairs, and Schoof testified that the
non-compliance of that railing was "technical" because it was only an
inch less than the required height. The
court interpreted this testimony as going to cause, rather than to whether
there was a violation of the code. In
any case, there was also testimony that Gilmore went over on the railing of the
lower platform, and Schoof testified unequivocally that the height of that
railing did not comply with code and was a significant deviation.
Capitol
Indemnity's second argument is that the form of the special verdict question
no. 5 was improper because the underlined phrase implies causation: "With respect to the incident
complained of herein, was defendant Laurice Westerman negligent in failing
to keep the premises as safe as the nature of the business would reasonably
permit." (Underline added.) Gilmore points out in his responsive brief,
with appropriate cites to the record, that this introductory phrase was
contained in the questions on negligence submitted by both Capitol Indemnity
and Westerman. The court modified the
questions, but kept this phrase.
Gilmore argues that, because the phrase was proposed by Capitol
Indemnity, it is foreclosed from arguing that it is error. Since Capitol Indemnity does not dispute
this point in its reply brief, we take it as conceded. See Schlieper v. DNR, 188
Wis.2d 318, 322, 525 N.W.2d 99, 101 (Ct. App. 1994). In any event, we fail to understand how the underlined phrase
implies causation, particularly since the court, after telling the jury that it
was answering question no. 5 "yes," specifically said it was the
jury's duty to determine if that negligence caused Gilmore's injuries. The court also instructed the jury that in
considering the cause question, or any other question in the verdict, the jury
was not to attach any greater or lesser importance to the court's findings than
to a similar finding made by the jury.
[9] Section 805.15(1), Stats., provides in part:
A party may move to
set aside a verdict and for a new trial because of errors in the trial, or
because the verdict is contrary to law or to the weight of evidence, or because
of excessive or inadequate damages, or because of newly‑discovered
evidence, or in the interest of justice.
[10] The facts or data upon which an expert bases
an opinion, if of a type reasonably relied on by experts in the field in
forming opinions, need not be admissible in evidence. Section 907.03, Stats.
That a fact or data meets this criteria does not make it automatically
admissible by the proponent. State
v. Weber, 174 Wis.2d 98, 106, 496 N.W.2d 762, 766 (Ct. App. 1993). It is inadmissible hearsay if used for the
truth of the matter asserted, unless otherwise admissible under a recognized
exception to the hearsay rule. Id.
at 107, 496 N.W.2d at 766.
[11] Section 904.03, Stats., provides:
Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice ....
[12] It is not clear if, in addition to appealing
the trial court's denial of their motion for a new trial under
§ 805.15(1), Stats., the
defendants are also requesting that we
exercise our power of discretionary reversal under § 752.35, Stats., on the ground that it is
"probable that justice has for any reason been miscarried." We decline to do so. The exclusion of Gothard's letter was not
error. And, for the reasons stated by
the trial court, we are not persuaded that either Bloom's testimony or
Gilmore's trial counsel's improper conduct prejudiced the defendants such that
a new trial would likely produce a different result. See State v. Harp, 161 Wis.2d 773, 777, 469 N.W.2d
210, 211-12 (Ct. App. 1991).