Kelly v. Berg

• Decision Date: 11 December 2018
• Docket Number: Appeal No. 2017AP2033
• Citation: 385 Wis.2d 513,2019 WI App 5,925 N.W.2d 780 (Table)
• Parties: Joan A. KELLY, Plaintiff-Appellant-Cross-Respondent, Wisconsin Health Fund and United Healthcare, Involuntary-Plaintiffs, v. Amanda E. BERG and Manitowoc Mutual Insurance Company, Defendants-Respondents-Cross-Appellants.
• Court: Wisconsin Court of Appeals

385 Wis.2d 513

925 N.W.2d 780 (Table)

2019 WI App 5

Joan A. KELLY, Plaintiff-Appellant-Cross-Respondent,Wisconsin Health Fund and United Healthcare, Involuntary-Plaintiffs,

v.Amanda E. BERG and Manitowoc Mutual Insurance Company, Defendants-Respondents-Cross-Appellants.

Appeal No. 2017AP2033

Court of Appeals of Wisconsin.

DATED AND FILED December 11, 2018

PER CURIAM.

¶1 This case is before us for a second time. On June 16, 2011, Joan Kelly and her dog were attacked and seriously injured by a pit bull owned by Amanda Berg and Adam Finkler. Kelly sued Finkler, Berg, and Berg’s homeowner’s insurer, Manitowoc Mutual Insurance Company, and a jury awarded Kelly compensatory damages for her personal injuries. Berg and Manitowoc (collectively, Berg) appealed, arguing the circuit court erroneously exercised its discretion by instructing the jury on the common-law emergency doctrine and that the jury’s award of damages was excessive. We agreed that the emergency doctrine did not apply to the facts of the case and that the special verdict form was confusing with respect to Kelly’s damages for past pain, suffering, and disability. We therefore reversed the judgment against Berg. See Kelly v. Berg , 2015 WI App 69, ¶2, 365 Wis. 2d 83, 870 N.W.2d 481 (Kelly I ).

¶2 On remand, the matter proceeded to a second trial, and a jury again awarded Kelly compensatory damages for her personal injuries. The jury also affirmatively answered two special verdict questions¹ that rendered Berg liable for two times the full amount of damages awarded by the jury, pursuant to WIS. STAT. § 174.02(1)(b) (2013-14).² However, based on public policy concerns, the circuit court granted Berg’s motion after the verdict, and it changed the jury’s answers to these two questions from "yes" to "no." Thus, the court effectively vacated the jury’s award of double damages to Kelly.

¶3 Kelly now appeals, arguing the circuit court erred by determining that public policy concerns justified overturning the jury’s answers to the two special verdict questions. Berg cross-appeals, arguing the court erred by allowing the two special verdict questions concerning double damages to go to the jury at all, because Kelly abandoned any claim for double damages by not seeking them at her first trial.

¶4 We conclude public policy concerns justify the denial of double damages to Kelly. We therefore affirm the judgment and order of the circuit court. Because we affirm the judgment and order of the court in Berg’s favor, Berg’s cross-appeal is moot.

BACKGROUND

¶5 The general background facts were set forth in our opinion in Kelly I. We recite the relevant facts here. Kelly lived next-door to Berg and Finkler. Kelly I , 365 Wis. 2d 83, ¶4. Berg and Finkler owned two pit bulls, named Princess and Servaceous. Id. Kelly owned a chocolate labrador named Moosie. Id.

¶6 At approximately 8:40 p.m. on June 16, 2011, Kelly was in her basement when she heard Moosie yelping. Id. , ¶5. Kelly ran outside, where she saw Princess inside her fenced-in backyard attacking Moosie.³ Id. After unsuccessfully attempting to summon help, Kelly herself tried to separate Princess and Moosie. Id. Kelly eventually succeeded at separating the two dogs, but only after Princess caused her multiple injuries. Id. , ¶¶5-7.

¶7 Kelly sued Berg on December 17, 2012, asserting two claims: (1) a violation of WIS. STAT. § 174.02, including a request for double damages; and (2) common-law negligence. Before trial, the parties stipulated that Berg was strictly liable for Kelly’s injuries under § 174.02(1)(a), and Kelly also abandoned her request for double damages.

¶8 The jury returned a verdict awarding Kelly $164,632.42. Berg appealed, and as mentioned above, we reversed and remanded for a new trial. See Kelly I , 365 Wis. 2d 83, ¶2. Prior to the second trial, Kelly submitted a proposed special verdict form that included two questions related to double damages.⁴ Question 7 asked the jury whether Berg’s dog had injured a person, domestic animal or property prior to its attack on Kelly and her dog. Question 8 asked, if the dog had caused an injury as described in question 7, whether Berg had knowledge that the dog had done so.

¶9 Berg objected to the inclusion of questions 7 and 8 on the special verdict form and filed a motion in limine seeking to limit the scope of the second trial to only those issues litigated at the first trial. The circuit court denied Berg’s motion after a hearing, concluding that it was "going to try this case again as if it hadn’t been tried before."

¶10 At the second trial, Kelly’s testimony provided an account of the attack consistent with her testimony at the first trial, discussed above. As relevant to this appeal, Kelly also provided testimony regarding damage to her property that Princess had caused prior to the attack. Specifically, Kelly testified that in the year leading up to the attack, Princess "t[ore] up [Kelly’s] sod and grass" by digging holes under her fence approximately six to eight times. Kelly stated that the holes required "a couple shovels full of dirt" to fill in.

¶11 Kelly also testified that on the day of the attack, Princess gained access to her yard by tunneling under her fence. Kelly knew of one prior occasion where Princess had entered her yard, but Kelly did not believe that Princess had tunneled under the fence on that occasion. Instead, Kelly acknowledged that Princess likely gained access to her yard through an open gate on that occasion. Kelly also acknowledged that, four days prior to the attack, she had spent a "couple hours" in Berg’s backyard, while Princess was "loose," but without incident.

¶12 The second jury awarded Kelly $148,481.51 in damages. The jury also affirmatively answered questions 7 and 8, entitling Kelly to double damages under WIS. STAT. § 174.02(1)(b). However, Berg filed a motion after the verdict requesting that the circuit court change the jury’s answers to questions 7 and 8 from "yes" to "no." In support, Berg argued that the jury’s answers were contrary to public policy and "[t]he fact that a dog digs holes in an individual’s back yard is not proof of an injury to property so as to trigger statutory double damages."

¶13 The circuit court granted Berg’s motion "on public policy grounds." The court reasoned that "the tunneling, the digging, that’s actual property damage ... [but] that in and of itself is not enough to implicate in my mind, even under the law as it existed at that time, double damages." Kelly now appeals, and Berg cross-appeals.

DISCUSSION

¶14 Kelly argues the circuit court erred by determining that public policy concerns justified changing the jury’s answers to questions 7 and 8, which effectively vacated the jury’s award of double damages. Public policy may be used to limit liability under WIS. STAT. § 174.02. Fandrey ex rel. Connell v. American Family Mut. Ins. Co. , 2004 WI 62, ¶29, 272 Wis. 2d 46, 680 N.W.2d 345. It is appropriate for a court to do so when:

(1) the injury is too remote from the negligence; (2) the recovery is wholly out of proportion to the culpability of the negligent tort-feasor; (3) the harm caused is highly extraordinary given the negligent act; (4) recovery would place too unreasonable a burden on the negligent tort-feasor; (5) recovery would be too likely to open the way to fraudulent claims; [or] (6) recovery would enter into a field that has no sensible or just stopping point.

Erdmann ex rel. Laughlin v. Progressive N. Ins. Co. , 2011 WI App 33, ¶8, 332 Wis. 2d 147, 796 N.W.2d 846. The application of these six public policy factors to a specific set of facts to deny recovery is a question of law that we review de novo. Fandrey , 272 Wis. 2d 46, ¶29. Liability may be limited or denied solely on the basis of a single factor. Id.

¶15 The parties’ arguments regarding the public policy factors rely heavily on two decisions of our supreme court in which liability for dog bite injuries was discussed at length: Fandrey and Pawlowski v. American Family Mutual Insurance Co. , 2009 WI 105, 322 Wis. 2d 21, 777 N.W.2d 67. We have previously cautioned that the application of public policy in dog bite cases must be done on a case-by-case basis because small changes in the facts often lead to differing results. Erdmann , 332 Wis. 2d 147, ¶9. Nevertheless, we agree with the parties that both Fandrey and Pawlowski are instructive in this particular case, and so we briefly summarize them.

¶16 In Fandrey , a three-year-old girl and her mother entered an unlocked home, uninvited, to deliver Christmas cookies. Fandrey , 272 Wis. 2d 46, ¶3. The homeowners, who were not at home, had left their dog in the home unattended. Id. The dog bit the three-year-old child, and the child sued the homeowners. Id. , ¶¶3-4. Our supreme court concluded that public policy considerations barred holding the homeowners liable for any damages for three reasons. Id. , ¶40.

¶17 First, the supreme court reasoned that the child’s injuries were too out of proportion from the culpability of the homeowners to support any damages, because the homeowners had done nothing wrong apart from failing to lock their door. Id. , ¶34. Second, allowing recovery would place an unreasonable burden on homeowners, who should not have to keep their dog locked away at all times, especially when they expect their home to be unoccupied. Id. , ¶35. And third, extending liability to uninvited guests in a dog owner’s home would enter a field with no sensible or just stopping point. Id. , ¶39.

¶18 In Pawlowski , a homeowner allowed an acquaintance of her daughter to move into her home, along with his two dogs. Pawlowski , 322 Wis. 2d 21, ¶9. One of the dogs, which had a known history of biting a young girl, was kept unleashed and eventually ran from a porch and bit a passerby. Id. , ¶¶10-11. Our supreme court determined that public policy factors did not preclude holding the homeowner liable, in part because the failure to leash a dog with a history of biting problems evinced a...