Hunt v. CLARENDON NATIONAL INS. SERV., INC.
| Decision Date | 14 December 2004 |
| Docket Number | No. 03-3522.,03-3522. |
| Citation | 2005 WI App 11,691 N.W.2d 904,278 Wis.2d 439 |
| Parties | Clairene D. HUNT, a minor, by her Guardian ad Litem, James J. Gende II and Maxcine Hunt, Plaintiffs-Appellants, AETNA U.S. HEALTHCARE and GEICO Insurance Co., Involuntary-Plaintiffs, v. CLARENDON NATIONAL INSURANCE SERVICE, INC., a foreign insurance corporation, Johnson School Bus Service, Inc., a Wisconsin corporation, and Joseph Brackmann, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Edward E. Robinson and Charles David Schmidt of Cannon & Dunphy, S.C. of Brookfield. There was oral argument by Charles David Schmidt.
On behalf of the defendants-respondents, the cause was submitted on the brief of Timothy J. Strattner and Laurie E. Meyer of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee. There was oral argument by Timothy J. Strattner.
Before Wedemeyer, P.J., Fine and Kessler, JJ.
¶ 1.
Clairene and Maxcine Hunt (collectively, "the Hunts") appeal from a judgment entered on a jury verdict finding that Joseph Brackmann, Johnson School Bus Service, Inc. (Johnson) and Johnson's insurer, Clarendon National Insurance Service, Inc., (collectively, "defendants"), were not liable for injuries Clairene suffered when she was hit by a car shortly after exiting her school bus.2 The Hunts argue that they are entitled to a new trial because the trial court: (1) erroneously refused to instruct the jury using the "common carrier" jury instruction that addresses duty of care; (2) erroneously exercised its discretion by barring evidence that Johnson's "drop and go" urban stop discharge procedure was negligently deficient and inherently unsafe; and (3) erroneously exercised its discretion by including the driver of the vehicle, which struck Clairene, on the special verdict. The Hunts also seek a new trial in the interest of justice. Finally, they argue that the trial court erroneously concluded that Clairene is not entitled to uninsured motorist benefits under the insurance policy covering the bus.
¶ 2. We conclude that Johnson is a common carrier and, therefore, the common carrier jury instruction should have been given. We conclude that the Hunts should have been allowed to present evidence to dispute the "drop and go" urban stop discharge procedure employed by the defendants. We further conclude that these were prejudicial errors entitling the Hunts to a new trial.
¶ 3. We do not decide whether the driver of the oncoming vehicle should be included in the special verdict on retrial because there may be evidence adduced, which was not available in this trial, from which a reasonable jury could conclude that she was negligent. However, we note that there was no evidence in this record of the speed, lookout or management and control of the driver of the car that struck Clairene.
¶ 4. Finally, we conclude that in the event the oncoming driver is again found to be negligent, Clairene is entitled to uninsured motorist benefits under the insurance policy covering the school bus because she was still vehicle-oriented in relation to the school bus at the time she was struck.
¶ 5. The background facts are undisputed. Clairene, who was ten years old at the time, suffered personal injuries when she was hit by a car while crossing the street after being discharged from her school bus in the City of Milwaukee. The bus dropped her off at the corner of an uncontrolled intersection3 and proceeded to enter the intersection to turn left. Clairene began to cross the street by walking behind the bus while it was waiting to turn. She was struck within ten feet of the rear of the bus by an oncoming car driven by Shalonda Briggs, who is not a party to this action.
¶ 6. The Hunts sued the driver of the bus, Joseph Brackmann, alleging negligence. They also sued Johnson, alleging that Johnson was vicariously liable for Brackmann's negligence and that Johnson was negligent in its training, instruction and supervision of bus drivers. The Hunts subsequently amended their complaint and added a claim for uninsured motorist coverage under Johnson's insurance policy from Clarendon on grounds that Clairene was "occupying" a "covered auto" at the time of the injury.
¶ 7. The trial court granted defendants' motion for declaratory judgment holding that the insurance policy does not afford uninsured motorist coverage to Clairene for her injuries. The trial court denied defendants' motion for summary judgment on the negligence claims.4 The negligence claims were tried to a jury, which returned a verdict finding that only Briggs and Clairene were causally negligent with respect to Clairene's injuries. The trial court denied the Hunts' motion for a new trial and entered judgment for defendants.5 This appeal followed.
¶ 8. The Hunts argue that the trial court erroneously refused to instruct the jury using WIS JI—CIVIL 1025, "Negligence of a Common Carrier," which would have instructed the jury that in order to discharge the duty owed to passengers, a common carrier "must exercise the highest degree of care for their safety." See id.
[1-4]
¶ 9. A trial court has broad discretion in deciding whether to give a particular jury instruction and the court must exercise its discretion "to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence." State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996) (citation omitted). However, we will independently review whether a jury instruction is appropriate under the specific facts of a given case. State v. Groth, 2002 WI App 299, ¶ 8, 258 Wis. 2d 889, 655 N.W.2d 163. If a jury instruction "is erroneous and probably misleads the jury, we will reverse because the misstatement constitutes prejudicial error." Young v. Professionals Ins. Co., 154 Wis. 2d 742, 746, 454 N.W.2d 24 (Ct. App. 1990). "A new trial is warranted when an erroneous instruction is prejudicial." Id.
¶ 10. Prior to trial, the trial court specifically considered whether Johnson was a "common carrier" in response to defendants' motion in limine that sought to preclude the Hunts from presenting any evidence or arguments that Johnson and Brackmann owed Clairene the "highest degree of care" required of a common carrier. The trial court granted defendants' motion and later denied the Hunts' request at the close of trial to instruct the jurors using WIS JI—CIVIL 1025, the instruction defining a common carrier's duty of care. The trial court's ruling was based on its conclusion of law that Johnson was not a common carrier.
[5-7]
¶ 11. We first consider whether Johnson is a common carrier. "A carrier is an enterprise in the business of publicly transporting persons or goods." Brockway v. Travelers Ins. Co., 107 Wis. 2d 636, 638, 321 N.W.2d 332 (Ct. App. 1982). "Two elements characterize a carrier as a common carrier: (1) The service is for hire, and (2) the carrier holds itself out to the public." Id. (footnote omitted). In Brockway, the court also recognized two additional factors that the Wisconsin Supreme Court considered in Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N.W. 748 (1923): whether the operator controlled the manner of transportation and whether the passenger places himself in the operator's care. Brockway, 107 Wis. 2d at 638 n.2 (citing Anderson, 179 Wis. at 304-06). Here, Johnson School Bus Service makes itself available to public school districts, offers to transport persons identified by the district to various locations at various times (also identified by the district), and receives payment from the district for those services. Clearly, the service is for hire. The part of the public attending the particular public school is served. The passengers are in the care of the operator while traveling from place to place. Johnson School Bus Service satisfies all common law characteristics of a common carrier.
¶ 12. The parties devote much of their arguments to discussing whether school buses operated by for-profit entities are "common motor carriers" as that term is defined in Wis. Stat. § 194.01(1) (2001-02).6 We do not believe the statutory definition is necessary to the outcome of this case, although it may be read to support our conclusion that Johnson is a common carrier. Chapter 194, titled "Motor Vehicle Transportation," deals generally with licensure, the physical condition of motor vehicles to be operated on Wisconsin highways and with the regulatory powers of the Wisconsin Department of Transportation. It makes no mention of tort liability or standards of care required of drivers.
[8]
¶ 13. The common law classification, rather than the definition in a regulatory scheme, controls the applicable standard of care in a negligence case. For instance, although taxicabs are specifically excluded from the definition of "common motor carrier" found in Wis. Stat. § 194.01(1), in a negligence context "[t]he common-law duty as to common carriers applies equally to taxicabs." Comment, WIS JI—CIVIL 1025. The comment further explains, "Wis. Stat. § 194.01(5) is a regulatory statute and, hence . . . is inapplicable to a taxicab company's negligence." Id.
¶ 14. We conclude that Johnson is a common carrier and that the jury should have been instructed accordingly. We are guided by Lempke v. Cummings, 253 Wis. 570, 34 N.W.2d 673 (1948), which discussed a private school bus company that provided transportation of school children in the context of its role as a common carrier. Id. at 571-74. In that context, the court held that "[t]he duty of a common carrier of passengers includes an obligation to furnish them a safe place in which to alight . . . and that duty is only satisfied if it exercises the highest degree of care and skill which...
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