Kochanski v. Speedway Superamerica, LLC

Decision Date17 July 2014
Docket NumberNo. 2011AP1956.,2011AP1956.
Citation850 N.W.2d 160,2014 WI 72,356 Wis.2d 1
PartiesJames E. KOCHANSKI and Cynthia Kochanski, Plaintiffs–Respondents–Petitioners, Blue Cross Blue Shield of Wisconsin and Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, Involuntary–Plaintiffs, v. SPEEDWAY SUPERAMERICA, LLC, Defendant–Appellant.
CourtWisconsin Supreme Court


For the plaintiff-respondents-petitioners, there were briefs by Jay R. Starrett, Lisa M. Lawless, Thomas Gonzalez, Erin M. Keesecker, and Whyte Hirschboeck Dudek S.C., Milwaukee, and oral argument by Ross Anderson.

For the defendant-appellant, there was a brief by Donald H. Piper, Patrick A. O'Neil, and Piper & Schmidt, Milwaukee, and oral argument by Patrick A. O'Neil.


¶ 1 We review a decision of the court of appeals 1 reversing the circuit court's order 2 affirming the jury's verdict, which found Speedway SuperAmerica, LLC (Speedway) liable for injuries James Kochanski sustained when he fell outside one of Speedway's stores. Speedway appealed, arguing that the circuit court erroneously gave the absent witness instruction, that the verdict should be reversed because it is contrary to the greater weight of the credible evidence, and that a new trial should be granted in the interest of justice. The court of appeals reversed on the jury instruction issue and remanded for a new trial. It did not reach Speedway's other two arguments.

¶ 2 We affirm the decision of the court of appeals. The circuit court's decision to give the absent witness instruction was an erroneous exercise of discretion because there was no evidence in the record that the absent witnesses, former Speedway employees who had been on duty at the time of the accident, were material and within Speedway's control or that it was more natural for Speedway, rather than Kochanski, to call them. Furthermore, Speedway's decision not to call the former employees did not reasonably lead to the conclusion that it was unwilling to allow the jury to have “the full truth.” Ballard v. Lumbermens Mut. Cas. Co., 33 Wis.2d 601, 616, 148 N.W.2d 65 (1967). And finally, the instruction was prejudicial because without drawing a negative inference about Speedway's snow removal methods and processes from Speedway's decision not to call the former employees, the jury would not have found that Kochanski satisfied the notice element of his safe-place claim that was necessary to liability. Accordingly, we affirm the court of appeals' decision and remand for a new trial.


¶ 3 On February 6, 2007, Kochanski filled his car with gas at a Speedway convenience store in Milwaukee, Wisconsin. Between one half and two inches of snow had fallen that morning. When the machine at the pump would not process his credit card, Kochanski decided to pay for his purchase inside. As he approached the front door of the store, he noticed a yellow curb on either side of the door and a patch of snow in the middle, which he assumed was a curb ramp to provide wheelchair access. The curb ramp was actually located four or five feet to his left. Having misjudged the ramp location, Kochanski either slipped or tripped on the curb, breaking his arm and injuring his wrist. He brought this suit in which he alleges that Speedway violated both its common law duty of care and the safe-place statute, Wis. Stat. § 101.11 (2009–10). 3

¶ 4 At a May 2011 jury trial, Kochanski proffered the following evidence in support of his claims: (1) his own testimony regarding the circumstances of the fall; (2) video footage from the store's surveillance camera that captured the fall; (3) deposition testimony of his treating physician regarding his injuries; (4) testimony of his wife regarding the impact the accident had on her and her husband's lives; and (5) Speedway's interrogatory responses that identified five former employees who were on duty at the time of the accident and provided their last known addresses.

¶ 5 In defending against the imposition of liability, Speedway relied on the video that captured the fall. Speedway explained to the jury that it had been unsuccessful in its attempt to locate the manager on duty at the time of the accident, but no testimony was necessary because the video was sufficient to prove that it was not liable.

¶ 6 Based on Speedway's decision not to call any former employees as witnesses, Kochanski requested, and the court gave, the absent witness instruction, which provides:

If a party fails to call a material witness within [its] control, or whom it would be more natural for that party to call than the opposing party, and the party fails to give a satisfactory explanation for not calling the witness, [the jury] may infer that the evidence which the witness would give would be unfavorable to the party who failed to call the witness.

Wis JI—Civil 410. The court reasoned that the jury had a right to know about Speedway's snow removal methods and processes. It explained that since Speedway did not call former or current employees who would have known about those methods and processes and the video did not show whether the premises was salted before the accident, the instruction was proper.

¶ 7 During closing arguments, Kochanski's attorney capitalized on the instruction, arguing as follows:

The law says—and you've taken an oath to follow the law—that if there is a witness that would have been natural for SuperAmerica to call to explain to you what was done on this day, you can infer that had they called that witness, they would have gotten some unfavorable testimony.

Why didn't [Speedway] call anybody? What would that unfavorable testimony have been? Other evidence that's missing in this case....

Not a single document, and not [a] single witness. It makes you wonder what's going on[.] What is it that's being decided at the highest levels of SuperAmerica? How will they defend these cases? Why don't you get to hear the whole story?

¶ 8 The jury returned a verdict in favor of Kochanski and awarded the plaintiffs $317,545.58 in damages, which represented Kochanski's medical expenses and pain and suffering, as well as Cynthia Kochanski's loss of society and companionship. The circuit court affirmed the verdict and denied Speedway's request for a new trial.

¶ 9 On appeal, Speedway argued that the circuit court erroneously gave the absentwitness instruction. Specifically, it said that the missing witnesses were not material because their testimony would have been cumulative of the video and that it is not necessarily more natural for defendant-employer to call former employees. The court of appeals agreed 4 WITH SPEEDWAY THAT The recOrd lacked the facts necessary to give the absent witness instruction. We granted review and now affirm the court of appeals.

A. Standard of Review

¶ 10 A circuit court has broad discretion to instruct a jury. Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112, ¶ 50, 246 Wis.2d 132, 629 N.W.2d 301. This does not mean, however, that a jury instruction is insulated from review. Facts of record must support the instruction and the instruction must correctly state the law. Id. We independently review whether these two criteria are met. State v. Fonte, 2005 WI 77, ¶ 9, 281 Wis.2d 654, 698 N.W.2d 594.

¶ 11 The correctness of the jury instruction affects the validity of a jury's verdict. State v. Dodson, 219 Wis.2d 65, 87, 580 N.W.2d 181 (1998). However, an “erroneous jury instruction warrants reversal and a new trial only if the error was prejudicial.” Fischer v. Ganju, 168 Wis.2d 834, 849, 485 N.W.2d 10 (1992). An error is prejudicial when it probably misled the jury. Id. at 850, 485 N.W.2d 10. Put another way, “an error relating to the giving or refusing to give an instruction is not prejudicial if it appears that the result would not be different had the error not occurred.” Lutz v. Shelby Mut. Ins. Co., 70 Wis.2d 743, 751, 235 N.W.2d 426 (1975).

B. Absent Witness Instruction

¶ 12 Over a century ago, the United States Supreme Court issued a definitive statement of the absent witness rule: [I]f a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (1893); Herbert v. Wal–Mart Stores, Inc., 911 F.2d 1044, 1046 (5th Cir.1990). As with the best evidence rule 5 and the spoliation doctrine,6 the absent witness rule is based on the notion that:

[t]he failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.

2 John Henry Wigmore, Evidence in Trials at Common Law § 285, at 192 (James H. Chadbourn rev.1979); Robert H. Stier, Jr., Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair, 44 Md. L.Rev. 137, 139–43 (1985).

¶ 13 However, contrary to the language of Graves, the instruction does not create a presumption; it describes a permissible inference. Booth v. Frankenstein, 209 Wis. 362, 370, 245 N.W. 191 (1932); 2 McCormick on Evidence § 264, at 322 (Kenneth S. Broun ed., 7th ed.2013). The instruction allows jurors to decide whether it was more natural for one party to call a material witness who was within that party's control than for the other party to call the witness and whether the witness' absence was satisfactorily explained.7 Furthermore, a court may give the instruction only if there are facts in the record that would allow the jury to reasonably draw a negative inference from the absence of a...

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