Hellenbrand v. Air Temperature Servs.
| Docket Number | 2022AP2216 |
| Decision Date | 09 November 2023 |
| Parties | Bryan Hellenbrand, Plaintiff-Respondent, v. Air Temperature Services, Inc. and Cincinnati Insurance Company, Defendants-Appellants, Western National Mutual Insurance Company, Involuntary-Plaintiff-Respondent, West Bend Mutual Insurance Company, Defendant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis.Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment of the circuit court for Dane County: Cir Ct. No. 2020CV2107 RHONDA L. LANFORD, Judge. Affirmed.
Before Kloppenburg, P.J., Blanchard, and Graham, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 While working as a carpenter at an industrial facility, Bryan Hellenbrand was struck in the head by a portion of ductwork that fell from where it had been suspended by wire cables from the rafters of the facility at the same time that employees of Air Temperature Services, Inc. were working to re-route one section of the ductwork. After Hellenbrand filed this negligence action, a jury at trial found for Hellenbrand in all of its verdicts. ATS and its insurer Cincinnati Insurance Company (collectively, "ATS") appeal arguing that the circuit court made erroneous rulings on various evidentiary and legal issues and that the jury awarded excessive damages. We reject ATS's arguments and affirm.
¶2 Hellenbrand alleged the following in his complaint and at trial. While Hellenbrand was employed by 1848 Construction as a carpenter, he was assigned to work on a project in a large space at Electronic Theatre Controls in Middleton. Hellenbrand was wearing a hardhat and safely going about his work on the work space floor.
¶3 At the same time and in the same large space, two employees of ATS-a company independent from 1848 Construction and Electronic Theatre Controls-were 25 feet above the floor working from a scissor lift, and tasked with disconnecting and re-routing one section of ductwork that was suspended from the ceiling and measured a total of 50 feet. All six connected sections of ductwork were suspended from the rafters by wire cables, and the cables were held in place by cable locks, each of which could be opened or closed with the press of a button. The cable locks were designed to hold a load such as the 50-foot ductwork only when the load was static (that is, stationary), but the cable-lock system might not hold when the ductwork became dynamic (that is, moving), because the cable locks could open under dynamic conditions, releasing the cables and thus allowing loads to fall.
¶4 Hellenbrand further alleged that the two ATS employees, David Scheel and Zach Reed, had inadequate individual and combined experience and training for the task they were assigned. Scheel and Reed improperly caused a portion of the 40 feet of ductwork that extended beyond their immediate work area to fall. More specifically, Scheel cut one of the wire cables with wire cutters, and this caused the entire ductwork to become a dynamic load that the rest of the cables could no longer hold, causing a cascading failure along the ductwork. Put differently, the fluctuating load caused the release of one cable lock after another, freeing the wire cables and allowing part of the ductwork to fall. Falling ductwork struck Hellenbrand in the head, fracturing his skull and causing bleeding in the brain; this resulted in permanent, serious brain injuries such as memory loss and vertigo.
¶5 Hellenbrand alleged that ATS was directly negligent in failing to properly train and supervise its employees on the job and also negligent through its employees in failing to properly and safely execute the duct section removal and re-routing. ATS understood the risks but failed to take the steps that would have prevented the ductwork from falling in the first place, and it also failed to take steps that would have prevented injuries to people such as Hellenbrand in the event that the ductwork did start to fall.
¶6 Turning to ATS's trial theory, it contended the following. Hellenbrand was injured in an unavoidable, unforeseeable accident. Scheel and Reed removed the 10-foot section of the ductwork in a proper and reasonable way that complied with all industry standards of care, regulations, and codes, such as standards set by the federal Occupational Safety and Health Administration. While it is true that one of the wire cables supporting one section was cut during their work, the cut cable was one of the two that supported the particular 10-foot section that Scheel and Reed were working with and this was a reasonable and safe way for them to execute their tasks. Further, Scheel and Reed did not cause the extended portion of the ductwork to fall on Hellenbrand, who was working on the floor 40 feet from where Scheel and Reed were working, as measured by the distance across the floor from the base of the scissors lift to Hellenbrand. Specifically, the movement caused by Scheel and Reed to the 40-foot portion of ductwork that extended beyond their work area was virtually nonexistent and Hellenbrand's theory as to what caused the 40-foot portion to fall rested on mere speculation. In addition, given the 40-foot distance, under the proper standard of care ATS was not required to cordon off or place signage in the area of the floor where Hellenbrand was working at the time of the accident.
¶7 On the topic of Hellenbrand's injuries, ATS acknowledged that the injuries were serious and debilitating. ATS contended, however, that by the time of trial Hellenbrand had made a remarkable recovery and had returned to his job, without suffering a loss of future earning capacity.
¶8 The jury returned the following verdicts. ATS, through its employees, was negligent and its negligence was a cause of Hellenbrand's injuries. The following sums of money would fairly and reasonably compensate Hellenbrand, beyond his damages for past health care expenses and past wage loss:[1] future loss of earning capacity, $550,000; past pain, suffering, and disability, $3 million; and future pain, suffering, and disability, $6 million.
¶9 ATS filed motions after verdict, making the same arguments that it raises now on appeal, and the circuit court denied those motions.
¶10 We provide additional background in the Discussion section as necessary to resolve the specific issues raised on appeal.
¶11 As a threshold matter, we note that the ATS briefing on appeal contains numerous references to the possible remedy of a mistrial, but none of these many references have a chance of success because it is not disputed that ATS failed at any time during the trial to move for a mistrial. Hellenbrand quotes the settled rule that a party cannot claim an error that warrants a mistrial unless the party moved for a mistrial at trial. See Mulkovich v. State, 73 Wis.2d 464, 469, 243 N.W.2d 198 (1976). ATS's only reply on this point is to cite case law that has nothing to do with mistrials, namely, State v. Bergeron, 162 Wis.2d 521, 528-29, 470 N.W.2d 322 (Ct. App. 1991) (). The remedy of a mistrial is off the table.
¶12 Most notably, ATS purports to raise five specific issues under the "mistrial" rubric, but after Hellenbrand argues that ATS forfeited each of these five specific arguments by failing to lodge objections at trial, to request a mistrial, or to raise the issues in a motion after verdict ATS concedes the point through silence in its reply brief, including on the topic of whether these issues could have been preserved through motions in limine or timely objections. See United Coop. v. Frontier FS Coop., 2007 WI.App. 197, ¶39, 304 Wis.2d 750, 738 N.W.2d 578 (). For that reason, we reject each of those five specific arguments and we do not further refer to the mistrial concept or any argument based on it.
¶13 Turning to the legal background here, it is relevant to several issues raised on appeal that Hellenbrand had to show the following four elements to establish his common law negligence claim: (1) that ATS had a duty of care; (2) that ATS breached this duty; (3) that there was a causal connection between ATS's conduct and Hellenbrand's injury; and (4) that there was an actual loss or damage as a result of the injury. See Coffey v. City of Milwaukee, 74 Wis.2d 526, 531, 247 N.W.2d 132 (1976).
¶14 Regarding the third element that Hellenbrand was required to prove, causation, ATS makes a series of assertions that generally involve references to testimony by engineer Lester Engel, called by Hellenbrand at trial, with passing references to Robert Wozniak, another engineer called by Hellenbrand at trial. These assertions include that the circuit court erred in denying ATS's motions to preclude testimony by Engel and Wozniak addressing causation and that the court should have granted ATS's motions for a directed verdict, as well as motions after verdict, based on the alleged lack of proof of causation.
¶15 We observe generally that ATS's causation-related arguments are all either undeveloped or underdeveloped. Counsel for ATS appears to operate under the mistaken impression that an issue is sufficiently briefed on appeal if a party makes some potentially relevant references that we theoretically could, on our own initiative, analyze under the proper legal standards-as opposed to presenting us...
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