American Family Mut. Ins. Co. v. Dobrzynski

• Decision Date: 01 May 1979
• Docket Number: No. 76-538,76-538
• Citation: 277 N.W.2d 749,88 Wis.2d 617
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant, v. Ronald J. DOBRZYNSKI, Respondent.
• Court: Wisconsin Supreme Court

Page 749

277 N.W.2d 749

88 Wis.2d 617

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant, v. Ronald J. DOBRZYNSKI, Respondent.

No. 76-538.

Supreme Court of Wisconsin.

Submitted on Briefs March 26, 1979.

Decided May 1, 1979.

This is a negligence action to recover property damage to a vehicle as a result of an auto accident. The case was tried to a jury. At the conclusion of the plaintiff's case the defendant moved for a nonsuit. The motion was granted and judgment was entered dismissing the complaint with prejudice. The plaintiff appeals.

Dennis K. Sage, Godsell, Weber, Bruch, Rick & Sage, S. C., Hales Corners, for appellant.

William H. Vettel, Wauwatosa, for respondent.

BEILFUSS, Chief Justice.

The primary issue is whether the plaintiff presented sufficient evidence to permit an inference of negligence on the part of the defendant under the doctrine of Res ipsa loquitur. We believe there was sufficient evidence to permit the inference and reverse the judgment.

The incident giving rise to the action occurred on July 12, 1973 at about 2:15 a. m., in Cudahy, Wisconsin.

Gayle Clemens owned a 1970 Buick. It was insured by the plaintiff-appellant American Family Mutual Insurance Company. The other vehicle involved was a 1965 Ford Thunderbird owned and operated by the defendant-respondent Ronald J. Dobrzynski.

The precise sequence of events that took place is not clear from the record. However it is undisputed that the plaintiff's insured Buick automobile was parked inside a garage when the second vehicle, operated by the defendant, collided with the closed garage door and pushed the Buick through the garage wall on the opposite side and damaged the Buick in both the front and rear. There were no witnesses to the actual collision except the defendant, who did not appear at trial.

The complaint contained allegations of specific negligent acts on the part of the defendant: failure to properly manage and control his vehicle, operating the vehicle at a speed that was unreasonable under the circumstances, failure to maintain a proper lookout, and operating his vehicle while under the influence of an intoxicant. These were specifically denied by the defendant in his answer.

On December 7, 1976, the matter proceeded to trial before a jury. The court noted that the only issue to be litigated and decided by the jury was the liability of the defendant because the parties had previously stipulated that American Family Insurance Company was subrogated to the rights of its insured and that the $570.71 paid out by the company for repairs was fair and reasonable.

The only witness called by the plaintiff was the investigating police officer who was routinely checking the area and happened on the scene shortly after the collision. He testified in substance that the physical evidence at the scene, I. e., the two vehicles and the garage door and wall, corroborated what little was known and admitted concerning the accident, namely, that the defendant's Thunderbird had hit the garage door and pushed the second vehicle about four feet through the rear wall of the garage. The officer also testified that at the scene on the night of the accident the defendant denied having operated the vehicle. However, several days later, on July 16, 1976, he contacted the officer and acknowledged that he was the person who had been driving at the time in question. Also, for the first time, the defendant informed the officer that he had experienced a brake failure. The defendant made no mention of the claim of brake failure on the night of the accident. Furthermore, the officer had the defendant move his car on two occasions that night after the incident in order to reconstruct the circumstances of the collision. The officer did not observe that the defendant had any difficulty in using the brakes. He was able to stop his car without further mishap both times.

At the close of the plaintiff's case the defendant moved for a nonsuit on insufficiency of the evidence. The trial court granted the defendant's motion and dismissed the complaint on the merits with prejudice. The court determined that the plaintiff failed to show a prima facie case of negligence, noting that there was no testimony in the record concerning the specific acts of negligence alleged in the complaint and no direct evidence showing the jury the manner in which the defendant had operated his vehicle. The court also concluded the case was not an appropriate one in which to apply the doctrine of Res ipsa loquitur for two reasons: first, the record contained no direct evidence or particular facts relating to the defendant's alleged negligent conduct; second, in light of the defendant's claim of brake failure, the accident was just as reasonably attributable to other nonactionable causes as to the defendant's negligence. The court additionally took notice of the fact that Res ipsa loquitur was not specifically pleaded by the plaintiff.

The involuntary nonsuit has now been abolished in Wisconsin. When such a motion is made, it is treated as a motion to dismiss. See sec. 805.14(2)(a), Stats. This motion, as with any motion challenging the sufficiency of the evidence as a matter of law, shall not be granted "unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party." Sec. 805.14(1). This test, to be used by the trial court in ruling on the motion in the first instance, is the same test this court is to employ on review. Elaborating on the standards to be applied by the court in ruling on a defendant's challenge to the sufficiency of the evidence made at the close of the plaintiff's case, this court has declared in Household Utilities, Inc. v. Andrews Co., 71 Wis.2d 17, 24, 236 N.W.2d 663, 667 (1976):

"A challenge to the sufficiency of the evidence, of course, requires that some quantum determination be made with respect to the facts in the case. Where the case is tried to a jury, the court's ruling is necessarily limited to a determination of whether there is a dispute as to the facts or whether conflicting inferences might be drawn from the facts as presented. In this respect, a motion for nonsuit is equivalent to a motion for directed verdict. The court may grant neither unless it finds, as a matter of law, that no jury could disagree on the proper facts or the inferences to be drawn therefrom; and that there is no credible evidence to support a verdict for the plaintiff. This approach is necessary to preserve the litigant's right to a jury trial."

There are no known witnesses to the early morning collision other than the defendant himself and he did not come forward with an explanation at trial. The precise events immediately preceding the collision are unknown. The record contains no evidence at all of Dobrzynski's conduct, of the manner in which and the speed at which he operated his vehicle. The only evidence of Dobrzynski's physical condition is the investigating officer's testimony that he could smell an alcoholic beverage on the defendant's breath. As in the case of Wisconsin Telephone Co. v. Matson, 256 Wis. 304, 308, 41 N.W.2d 268, 269 (1950), which involved a similar fact situation, "(u)nless the unexplained occurrence of the accident raises a presumption or permits inferences of negligence . . . (d)efendant's motion for judgment dismissing the complaint should have been granted . . . ."

An early statement of the doctrine of Res ipsa loquitur appears in Kirst v. Milwaukee, Lake Shore & Western Railway Co., 46 Wis. 489, 492, 1 N.W. 89, 91 (1879):

". . . '. . . where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.' . . ."

Turk v. H. C. Prange Co., 18 Wis.2d 547, 553, 119 N.W.2d 365, 369 (1963), provides:

"The three elements of Res ipsa loquitur as defined in Ryan v. Zweck-Wollenberg Co. (1954), 266 Wis. 630, 64 N.W. (2d) 226, that must be present before the application of the doctrine, are: (1) The accident must be a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. (Cases cited.)"

With respect to the first element, it has been said:

"The requirement that the occurrence be one which ordinarily does not happen without negligence is of course only another way of stating a principle of circumstantial evidence, that the accident must be such that in the light of ordinary experience it gives rise to an inference that someone has been negligent. . . ." Prosser, Law of Torts (2d ed.), p. 202, sec. 42, cited in Fehrman v. Smirl, 20 Wis.2d 1, 25, 26, 121 N.W.2d 255 (1963).

Regarding the element of exclusive control, the Wisconsin rule is that "Right to control is the important factor and actual exclusive control is not necessary." Turk v. H. C. Prange Co., supra, 18 Wis.2d at 557, 119 N.W.2d at 371. The control element presents no problem in this case because the defendant, owner and driver of the vehicle involved, had actual physical possession of the automobile as well as a right of control over it.

Under recent case law Res ipsa loquitur is frequently invoked in cases where, as here, an automobile collides with a stationary object. ¹ In this case the Thunderbird automobile, while being operated by the defendant, left the roadway and hit a garage door pushing the vehicle parked inside the garage through the opposite wall. This is clearly an accident which in the...