Gaethke v. Pozder

• Decision Date: 17 May 2017
• Docket Number: Appeal No. 2016AP541
• Citation: 899 N.W.2d 381,2017 WI App 38,376 Wis.2d 448
• Parties: Lee GAETHKE, Plaintiff-Respondent, v. Marco POZDER, Ljubica Pozder d/b/a The Crossroads Motel and Acuity, A Mutual Insurance Company, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

376 Wis.2d 448

899 N.W.2d 381

2017 WI App 38

Lee GAETHKE, Plaintiff-Respondent,

v.Marco POZDER, Ljubica Pozder d/b/a The Crossroads Motel and Acuity, A Mutual Insurance Company, Defendants-Appellants.

Appeal No. 2016AP541

Court of Appeals of Wisconsin.

Submitted on Briefs: November 10, 2016

Opinion Filed: May 17, 2017

On behalf of the defendants-appellants, the cause was submitted on the briefs of W. Timothy Steinle of Terschan, Steinle, Hodan & Ganzer, LTD., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kent A. Tess-Mattner and Amy Hetzner of Schmidt, Rupke, Tess-Mattner & Fox, S.C., Brookfield.

Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

GUNDRUM, J.

¶1 Marco and Ljubica Pozder, d/b/a The Crossroads Motel and Acuity, a Mutual Insurance Company, appeal from a judgment following a jury trial. The Pozders¹ contend the circuit court erred by denying their postverdict motion to change the jury's verdict finding them negligent in relation to Lee Gaethke's slip and fall at their motel. They specifically assert there was insufficient evidence presented at trial to support the negligence finding under either Wisconsin's Safe Place statute, WIS. STAT. § 101.11(1) (2015-16),² or the common law. The Pozders further argue the court erred in admitting medical bills into evidence at the trial and in denying their postverdict motion for a new trial based upon "outrageous conduct" by Gaethke's counsel during the trial. We reject each of the Pozders' claims of error and affirm.

Background

¶2 On February 8, 2013, Gaethke slipped and fell on ice while walking on a sidewalk at the Pozders' motel. He filed a complaint alleging that the Pozders' negligence, under Wisconsin's Safe Place statute and the common law, caused his fall and related injury. A jury trial was held, and the following relevant evidence was presented and events occurred at the trial.

¶3 Gaethke testified he arrived at the motel around 7:45 p.m. on February 8. After Ljubica registered him at the front desk, he retrieved a bag from his car and began walking across the parking lot toward his room. Noticing the surface to be slippery, he diverted his direction to the sidewalk. When he first walked on the sidewalk, it was not icy, but as he neared his room, he slipped and fell. In "extreme pain" and unable to walk, he crawled to his room, where he "went unconscious" after looking at his lower right leg. When he regained consciousness, Gaethke called his "life partner," Tara Agnew, and his brother, Henry Gaethke, both of whom responded to the motel, took him to Lakeland Hospital, and eventually brought him back to the motel. Gaethke subsequently went to a second hospital where surgery was performed on his leg and he spent several days recovering. A second surgery was performed at a later time.

¶4 Henry testified that the night of Gaethke's fall, Gaethke called him and told him he needed Henry to come to the motel. Arriving there, Henry parked his vehicle "right next to" the door to Gaethke's room and found both the parking lot and sidewalk in that area to be "very slippery," almost falling himself several times as he walked to Gaethke's room. He observed approximately four patches of ice on the sidewalk near the room. Henry confirmed for the jury that there was "ice all over the place."

¶5 Agnew testified that around 10:15 p.m. on the night Gaethke fell, Gaethke called her crying and in pain. She drove to the motel, arriving about an hour after the call. She slipped and fell upon exiting her vehicle, and as she proceeded to Gaethke's room, she observed "ice and chunks of ice all along the sidewalk" and the parking lot to be "shiny" and "like a whole sheet of ice."

¶6 Meteorologist Allen Becker testified that there had been snow on the ground in late January that was "persisting under cold temperatures, creating a source of snow and ice." In the days leading up to Gaethke's fall, the temperature ranged from minus four to about twenty-six degrees until February 7, when temperatures reached "32, 33, 34" degrees and a snowstorm developed, dropping approximately five inches of snow in the area before ending at approximately 1:00 a.m. on February 8. Around that same time, the temperature began to fall, hovering between twenty-one to twenty-four degrees for most of February 8, before falling to between nineteen and fourteen degrees in the "time window" of Gaethke's fall.

¶7 Considering the temperature "for the entire week up to and the day after the accident," Becker testified he was able "to assess whether if there was snow on the ground, if it would melt or if it melted would it refreeze. If there was any snow or ice, would it be preserved by the cold temperatures." Becker explained that the temperature at or slightly above freezing "could cause some melting or at least snow to be a little bit wet," and added that the "most obvious explanation" for ice on the sidewalk around the time of Gaethke's fall "would be the snowstorm of the day before.... After the snow stops falling, the temperature cools into the 20s, so that would maintain the snow, and then that obviously could explain the presence of ice." If there was ice on the sidewalk, Becker testified, it could have "come from days before" or "formed from the effects of the snowfall" from the day prior to Gaethke's fall.

¶8 John Prijic, superintendent of streets for the City of Kenosha, testified he had been removing snow and ice from streets and sidewalks for thirty-two years and that ice and snow at The Crossroads Motel "could have been removed and made safe" in a timely, simple, and inexpensive fashion on February 8, 2013, by "shovel, snow blow, or plow." "[T]hen if there's any residual snow or ice, you can remove that or treat that with chemicals," which can be obtained from "any hardware store." Once deicing material is applied, it takes anywhere from ten minutes to an hour to make an icy surface no longer slippery and dangerous. Prijic testified that sand can also be used to "provide immediate traction."

¶9 During the trial, the Pozders objected—on grounds of hearsay and lack of proper authentication—to the introduction of medical bills and a summary of those bills. The only medical testimony presented to the jury came from the deposition of Dr. William Yoder. During that testimony, Yoder, when shown the summary of the bills (but not the bills themselves), indicated he was not "qualified to give an opinion" as to the "actual amounts that are typically charged" for the services. The circuit court overruled the Pozders' objection and admitted the documents, Exhibit 6, finding they were sufficiently authenticated by other evidence and were admissible under WIS. STAT. § 908.03(24), the "residual hearsay" exception.

¶10 The Pozders did not attend the trial. Their testimony was videotaped a month earlier and played for the jury at trial. In her testimony, Ljubica stated she and Marco would not be at the trial because they would be in Australia for three months visiting family. During his initial closing argument, Gaethke's counsel stated the Pozders "couldn't wait a month to come here to court to tell you how this accident happened." The Pozders' counsel objected. A brief discussion ensued between counsel for both parties and the court, which discussion was interrupted by the wife of Gaethke's counsel, who herself is not an attorney. Later, during rebuttal argument, Gaethke's counsel made a reference to the race of one of Gaethke's witnesses and the manner in which the Pozders' counsel cross-examined her.

¶11 The jury found the Pozders sixty-five percent negligent and Gaethke thirty-five percent negligent in relation to Gaethke's fall. The Pozders filed a postverdict motion raising the same issues as in this appeal. The circuit court denied the motion, and the Pozders appeal.

Discussion

¶12 The Pozders contend the circuit court erred by denying their postverdict motion to change the jury's verdict finding them negligent. They assert the evidence was insufficient to support the finding under either Wisconsin's Safe Place statute, WIS. STAT. § 101.11(1), or the common law. They further argue the court erred in admitting the medical bills, Exhibit 6, into evidence and in denying their postverdict motion for a new trial based upon "outrageous conduct" by Gaethke's counsel. We disagree with each point.

Request to Change Jury's Answer on Verdict

¶13 The first question on the special verdict asked the jury if the Podzers were "negligent with respect to maintaining the sidewalk" at the motel on the date Gaethke fell. The jury answered this question "Yes." The circuit court denied the Pozders' postverdict motion to change the answer to "No."

¶14 In reviewing a circuit court's denial of a motion to change the jury's answer to a verdict question:

[W]e view the evidence in the light most favorable to the verdict and affirm the verdict if it is supported by any credible evidence. We search the record for credible evidence that sustains the verdict, and if the evidence gives rise to more than one reasonable inference, we accept the inference the jury reached.

Kubichek v. Kotecki , 2011 WI App 32, ¶ 14, 332 Wis.2d 522, 796 N.W.2d 858 (citations omitted); see also WIS. STAT. § 805.14(1). The standard of review is even more "stringent" where, as in the case now before us, "the circuit court upheld the jury's findings on motions after verdict. In such cases, we will not overturn the jury's verdict unless ‘there is such a complete failure of proof that the verdict must be based on speculation.’ " Kubichek , 332 Wis. 2d 522, ¶ 14, 796 N.W.2d 858 (citations omitted).

¶15 The Pozders contend the evidence is insufficient to sustain the jury's "Yes" answer under either a safe place statute or common law theory of negligence. As to the safe place statute, they argue the evidence did not show they had notice of the unsafe condition prior to Gaethke's fall as required for liability under the statute. As to common law...