Dakter v. Cavallino

• Decision Date: 09 October 2014
• Docket Number: No. 2013AP1750.,2013AP1750.
• Citation: 856 N.W.2d 523,358 Wis.2d 434
• Parties: Ronald J. DAKTER and Kathleen M. Dakter, Plaintiffs–Respondents–Cross–Appellants, v. Dale L. CAVALLINO, Hillsboro Transportation Company, LLC and Michigan Millers Mutual Insurance Company, Defendants–Appellants–Cross–Respondents.
• Court: Wisconsin Court of Appeals

358 Wis.2d 434

856 N.W.2d 523

Ronald J. DAKTER and Kathleen M. Dakter, Plaintiffs–Respondents–Cross–Appellants

v.Dale L. CAVALLINO, Hillsboro Transportation Company, LLC and Michigan Millers Mutual Insurance Company, Defendants–Appellants–Cross–Respondents.^†

No. 2013AP1750.

Court of Appeals of Wisconsin.

Submitted on Briefs April 14, 2014.

Opinion Filed Oct. 9, 2014.

On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Paul D. Curtis and Timothy M. Barber of Axley Brynelson, LLP, Madison.

On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of John R. Orton of Curran, Hollenbeck & Orton, S.C., Mauston.

A nonparty brief was filed by William C. Gleisner, III of Law Offices of William Gleisner, Hartland, and Lynn R. Laufenberg of Laufenberg, Jassack & Laufenberg, Milwaukee, for Wisconsin Association For Justice.

Before BLANCHARD P.J., LUNDSTEN and KLOPPENBURG, JJ.

Opinion

BLANCHARD, P.J.

¶ 1 In this negligence case, a semi-trailer truck collided with a car, seriously injuring the car driver, Ronald Dakter. At trial, the jury returned verdicts finding both Dakter and the truck driver, Dale Cavallino, causally negligent, but apportioning the majority of the fault to Cavallino. Damages awarded by the jury included $31,668 to Dakter's wife, Kathleen Dakter, for past and future nursing services that she had provided to, and would yet provide to, Dakter as a result of his accident-related injuries.

¶ 2 On appeal, Cavallino, his employer, and his employer's insurer¹ appeal the judgment on the verdicts and the order denying Cavallino's motions after verdict. Cavallino argues that the circuit court: (1) should have granted Cavallino's motions for summary judgment, for judgment notwithstanding the verdict, and for a change in the jury's verdict apportioning negligence, all on the grounds that, as a matter of law, Dakter's negligence must have exceeded Cavallino's, because it is uncontested that Dakter did not yield to Cavallino's right-of-way; (2) in two instructions, erroneously instructed the jury that (a) as a professional truck driver, Cavallino must be held to a heightened duty of care, and (b) Cavallino could not rely on his right-of-way; (3) erroneously exercised its discretion in excluding testimony from a deputy sheriff who responded to the accident scene; and (4) erroneously allowed to stand the nursing services damages award. For the reasons explained below, we reject each of these arguments and accordingly affirm the judgment and the order.²

BACKGROUND

¶ 3 The accident occurred on a May afternoon at the four-way intersection of (1) the two-lane State Trunk Highway 80, at a point where it runs nearly north-south, and (2) a road called State Trunk Highway 82 to the east and Tilmar Avenue to the west. Traffic entering 80 from either 82 or Tilmar must stop, giving traffic on 80 the right of way.

¶ 4 There was testimony at trial that the roadways were wet at the time of the accident.

¶ 5 Ronald Dakter drove north on 80, intending to turn left onto Tilmar and proceed west. At the same time, a van driven by Wyman Hoiland approached the same intersection on 80, heading south. Hoiland planned to turn left onto 82 to proceed east. Both Dakter and Hoiland signaled left turns and stopped, roughly facing each other across the intersection of 80 and 82/Tilmar.

¶ 6 Cavallino approached the intersection in a 65–foot semi trailer truck, traveling southbound on 80, behind and heading in the same direction as Hoiland.

¶ 7 As the two-lane 80 approaches 82/Tilmar, from each direction, it widens to include lanes that can be used for right turns onto 82 or Tilmar.

¶ 8 Hoiland testified that, while stopped at the intersection waiting to turn left, he glanced in his rearview mirror and saw “[a] big truck coming down on top of me.” Cavallino's truck moved into the right lane and around Hoiland's van, before colliding with Dakter's car as Dakter was making a left turn. This occurred in front of Hoiland's car, “off to the right.”

¶ 9 Contrary to Hoiland's testimony, Cavallino testified that Hoiland had already executed his left turn by the time Cavallino's truck reached the intersection.

Therefore, Cavallino testified, he did not have to, and did not, move into the right lane. Instead, he testified, he remained in the through lane, that is, in the same lane he had been using before 80 widened to include the right lane, before colliding with Dakter's turning car.

¶ 10 The speed limit for traffic traveling on 80 at this intersection was 45 miles per hour. Cavallino testified that he was operating his truck at approximately 40 miles per hour just before the accident. Cavallino also testified that his right foot had “barely got on the brake” when his truck hit Dakter's car.

¶ 11 After the Dakters filed this negligence action, Cavallino moved for summary judgment on the grounds that: Ronald Dakter was negligent as a matter of law for failing to keep a proper lookout and failing to yield the right of way to Cavallino as Dakter made his left turn; Cavallino was merely reacting to an emergency at the time of the collision, namely, Dakter's unexpected turn; and Ronald Dakter was more negligent than Cavallino as a matter of law. The court denied this motion, concluding that there were disputed material issues that required a trial.

¶ 12 Consistent with these summary judgment arguments, Cavallino argued during the course of the ten-day trial that Ronald Dakter failed to yield the right-of-way, inexplicably turning directly into the path of the semi trailer truck. Cavallino's position was that his speed was below the speed limit and appropriate for conditions. Cavallino argued that he had remained in the through lane and had no reason to suspect that Dakter would suddenly turn in front of him, violating Cavallino's undisputed right-of-way.

¶ 13 For their part, the Dakters argued at trial that, at the time of the accident, Cavallino: was driving at an unreasonable speed for conditions at that location; failed to exercise proper lookout; followed Hoiland's van too closely; failed to use ordinary care to keep his truck under control; violated truck driving safety standards; and acted recklessly in passing Hoiland on the right. As part of these arguments, the Dakters contended that Ronald Dakter's view of the truck was at least partially obscured before Dakter turned, and that Cavallino abruptly moved to the right lane, after nearly rear ending Hoiland's van, while driving too fast for conditions. The Dakters argued that it was all the more difficult for Dakter to notice the white truck because it came up fast from behind Hoiland's gray van on a rainy, gray day.

¶ 14 The jury found both Cavallino and Dakter causally negligent in operating their vehicles and assigned the following percentages of fault: 65 percent to Cavallino; 35 percent to Dakter. The only aspect of damages pertinent here is that the jury awarded Kathleen Dakter $31,668 for past and future nursing services in providing care for Ronald following the accident.

DISCUSSION

I. WAS DAKTER MORE NEGLIGENT THAN CAVALLINO, AS A MATTER OF LAW, BECAUSE DAKTER FAILED TO YIELD TO CAVALLINO'S RIGHT–OF–WAY?

¶ 15 Cavallino argues that “it simply does not matter whether the jury thought Cavallino was driving too fast or did not keep a proper lookout,” because Dakter was more negligent than Cavallino as a matter of law, due to the fact that Dakter failed to yield to Cavallino's right-of-way. From this, Cavallino argues that the circuit court “applied the wrong legal standard” in denying his motion for judgment notwithstanding the verdict (JNOV) and his motion to change the verdict to reflect that Dakter was more negligent than Cavallino. As we now explain, this right-of-way argument rests on a faulty legal premise and therefore fails.³

¶ 16 A party may move for judgment notwithstanding the verdict when “the verdict is proper but, for reasons evident in the record which bear upon matters not included in the verdict, the movant should have judgment.” Wis. Stat. § 805.14(5)(b) (2011–12).⁴ In other words, a JNOV motion assumes that a jury verdict is supported by sufficient evidence, but asserts that judgment should be granted to the moving party on grounds other than those decided by the jury. Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis.2d 158, 176–77, 557 N.W.2d 67 (1996) ; see also Wozniak v. Local 1111 of the United Elec., Radio & Mach. Workers of Am.,

57 Wis.2d 725, 733, 205 N.W.2d 369 (1973) (motion for JNOV is effectively a postverdict motion for directed verdict).

¶ 17 A motion for JNOV presents a question of law, and therefore we apply a de novo standard of review. Management Computer Servs., 206 Wis.2d at 177, 557 N.W.2d 67.

¶ 18 As for our review of a motion to change a jury verdict,

Appellate courts do not upset a jury verdict if there is any credible evidence to support it. “Weighing testimony and evaluating credibility of witnesses are matters for the jury.” In reviewing a jury verdict, “evidence will be viewed in the light most favorable to the verdict” and courts “search for credible evidence that will sustain the verdict, not for evidence to sustain a verdict the jury could have but did not reach.”

K & S Tool & Die Corp. v. Perfection Mach. Sales, Inc., 2007 WI 70, ¶ 38, 301 Wis.2d 109, 732 N.W.2d 792 (citations and quoted sources omitted). In addition, the bar is yet higher here, because the circuit court upheld the jury's findings on motions after verdict. See Morden v. Continental AG, 2000 WI 51, ¶ 40, 235 Wis.2d 325, 611 N.W.2d 659. We will not overturn the jury's verdict in such a case unless “there is such a complete failure of proof that the verdict must be based on speculation.” Coryell v. Conn, 88 Wis.2d 310, 315, 276 N.W.2d 723 (1979).

¶ 19 Cavallino's argument that the circuit court erred in denying his motions for a JNOV and to change the jury verdict rests on his assertion that under...