Kelly v. Berg
| Decision Date | 18 August 2015 |
| Docket Number | No. 2014AP1346.,2014AP1346. |
| Citation | 870 N.W.2d 481,365 Wis.2d 83 |
| Parties | Joan A. KELLY, Plaintiff–Respondent, Wisconsin Health Fund and United Healthcare, Involuntary–Plaintiffs, v. Amanda E. BERG and Manitowoc Mutual Insurance Company, Defendants–Appellants, Adam J. Finkler, Defendant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-appellants, the cause was submitted on the briefs of Sven W. Strutz and Michael L. Eckert of Eckert—Kost, LLP, Rhinelander.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Andrew J. Schwaba and Thomas P. Schwaba of The Schwaba Law Firm, Marinette.
Before STARK and HRUZ, JJ., and THOMAS CANE, Reserve Judge.
¶ 1 A dog owned by Amanda Berg and Adam Finkler attacked a dog owned by their neighbor, Joan Kelly. Kelly intervened and was injured in the process. Kelly sued Finkler, Berg, and Berg's homeowner's insurer, Manitowoc Mutual Insurance Company, and a jury awarded her damages for her personal injuries. Berg and Manitowoc (collectively, Berg) appeal, seeking a new trial.1 Berg argues the circuit court erroneously exercised its discretion by instructing the jury on the emergency doctrine, and she also argues the damages awarded by the jury are excessive.
¶ 2 We agree with Berg that the circuit court erred by instructing the jury on the emergency doctrine. The emergency doctrine does not apply under the facts of this case because the time in which action was required was not short enough to preclude a deliberate and intelligent choice of action. We further conclude the circuit court's error in instructing the jury on the emergency doctrine prejudiced Berg. We therefore reverse the judgment in Kelly's favor and remand for a new trial on liability. In addition, because the special verdict was confusing with respect to Kelly's damages for past pain, suffering, and disability, we also remand for a new trial on Kelly's damages.
¶ 3 Kelly sued Berg on December 17, 2012, asserting a claim under Wis. Stat. § 174.02.2 That statute provides that the owner of a dog “is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.” Sec. 174.02(1)(a). However, this rule of strict liability is “[s]ubject to” Wis. Stat. § 895.045, the contributory negligence statute. Sec. 174.02(1)(a). Thus, aside from damages, the primary issue for the jury to determine at trial was whether Kelly was contributorily negligent.
¶ 4 At trial, Kelly testified Berg and Finkler were her next-door neighbors. Berg and Finkler owned two pit bulls, named Princess and Servaceous. Kelly owned a chocolate labrador named Moosie.
¶ 5 Kelly testified that, at about 8:40 p.m. on June 16, 2011, she was washing up in her basement after working in her yard for several hours, when she heard an “awful screeching, yelping noise[.]” She realized Moosie was making the noise and ran outside, where she saw that Princess was inside Kelly's fenced backyard and was “hanging from Moosie's throat[.]”3 Kelly began screaming for Finkler to help her, but neither he nor Berg responded. Kelly then observed that Moosie “couldn't even yelp any more[,]” and even though he was “swinging [Princess] back and forth trying to get her to let go,” Princess would not release her grip on him.
¶ 6 At that point, Kelly testified, she thought, “[I]f I don't do something right now, [Princess is] going to kill [Moosie].” She therefore ran to the dogs and pulled Princess's jaws open, allowing Moosie to run toward the back door of Kelly's house. Kelly pushed open the fence gate, hoping Princess would leave her yard, but instead Princess followed Moosie to the back door and “clamped ... onto his right shoulder[.]” Kelly dug her fingernails into Princess's nose and pulled Princess's jaws apart a second time, but Princess then attacked Moosie's left shoulder.
¶ 7 Kelly pulled Princess's jaws apart a third time and was able to get Moosie into the house. However, as Moosie ran inside, Princess bit Kelly's right arm and pulled her to the ground, causing her to strike her knee on the concrete. Kelly pushed Princess's jaws as hard as she could and again grabbed her nose. Princess then let go of Kelly and ran away. Kelly testified,
¶ 8 Kelly went to the emergency room following the attack and received stitches for the bite wounds
on her arm. The wounds subsequently became infected, requiring antibiotics. Although Kelly did not report any knee pain when seen in the emergency room, she saw a nurse practitioner for knee pain the following week and was subsequently referred to an orthopedic surgeon for treatment.
¶ 9 Psychologist Brad Grunert testified he performed an independent psychological examination of Kelly on August 24, 2012. He diagnosed Kelly with mild chronic posttraumatic stress disorder
(PTSD). As treatment, he recommended twelve to sixteen imaginal exposure and reprocessing sessions, at a cost of $330 per session. Kelly had not yet begun those sessions at the time of trial.
¶ 10 Following the close of testimony, the circuit court announced that it intended to give the jury a modified version of the standard jury instruction on the emergency doctrine, Wis. JI—Civil 1105A (2015). Neither party had requested such an instruction.
Berg's attorney objected, arguing the court's proposed instruction “should not apply to this fact circumstance.” The court rejected counsel's argument, explaining:
¶ 11 Defense counsel also objected to the special verdict form proposed by the court, which separated Kelly's damages for past pain and suffering into two categories: those related to PTSD and those unrelated to PTSD. Defense counsel requested “a single inquiry on past pain, suffering and disability.” The court rejected counsel's request, stating that not separating those damages into two categories would “just caus[e] so much confusion[.]”
¶ 12 Question 1 on the special verdict form submitted to the jury asked whether Kelly was negligent during and immediately prior to the incident on June 16, 2011. The jury answered that she was not. Because it answered Question 1 in the negative, the jury did not answer Question 2, which asked whether Kelly's negligence was a cause of her injuries and damages, or Question 3, which asked the jury to apportion negligence between Kelly and Berg/Finkler.4
¶ 13 Question 4 on the special verdict pertaining to damages asked the jury:
What sum of money will reasonably compensate [Kelly] for each of the following: (a) past medical and health care expenses$ (b) past pain, suffering, and disability not related to PTSD$ related to PTSD (not to exceed 16 sessions)$ (c) past wage loss[.]$
The jury awarded Kelly $5,296.22 for past medical expenses; $150,000 for past pain, suffering, and disability not related to PTSD; $5,280 for past pain, suffering, and disability related to PTSD; and $4,056.20 for past wage loss. Next to its answer regarding past pain, suffering, and disability related to PTSD, the jury wrote, “330.00 x 16 = 5280.00[.]”
¶ 14 Berg filed a postverdict motion arguing she was entitled to a new trial on liability because the circuit court erroneously instructed the jury on the emergency doctrine. Berg also moved for remittitur or a new trial on damages, pursuant to Wis. Stat. § 805.15(6), arguing the jury's verdict was excessive. The circuit court denied Berg's postverdict motions, and this appeal follows.
¶ 15 Berg first argues the circuit court erred by instructing the jury on the emergency doctrine. A circuit court has broad discretion in deciding whether to give a particular jury instruction. State v. Anderson, 2014 WI 93, ¶ 16, 357 Wis.2d 337, 851 N.W.2d 760. “A circuit court appropriately exercises its discretion in administering a jury instruction so long as the instruction as a whole correctly states the law and comports with the facts of the case.” Weborg v. Jenny, 2012 WI 67, ¶ 42, 341 Wis.2d 668, 816 N.W.2d 191. We will affirm the court's decision to give a particular instruction absent an erroneous exercise of discretion. Anderson, 357 Wis.2d 337, ¶ 16, 851 N.W.2d 760. “ ‘However, we independently review whether a jury instruction is an accurate statement of the law applicable to the facts of a given case.’ ” Id. (quoting State v. Fonte, 2005 WI 77, ¶ 9, 281 Wis.2d 654, 698 N.W.2d 594 ).
¶ 16 Generally, the emergency doctrine relieves a person from liability for his or her action or inaction when faced with an emergency that his or her conduct did not help to create. See Hoeft v. Friedel, 70 Wis.2d 1022, 1030, 235 N.W.2d 918 (1975). The doctrine “has had its greatest development in the area of automobile accident cases[.]” McCrossen v. Nekoosa Edwards Paper Co., 59 Wis.2d 245, 259, 208 N.W.2d 148 (1973). In that context, courts typically state that the doctrine applies if three elements are satisfied:
First, the party seeking the benefits of the emergency doctrine must be free from negligence which contributed to the creation of the emergency. Second, the time element in which action is required must be short enough to...
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