Lievrouw v. Roth

• Decision Date: 03 July 1990
• Docket Number: No. 89-1369,89-1369
• Citation: 459 N.W.2d 850,157 Wis.2d 332
• Parties: Dennis LIEVROUW, and Cindy Lievrouw, Plaintiffs-Respondents, v. Julie Ann ROTH, and Classified Insurance Corporation, Defendants-Appellants, Robert Davis, Defendant.
• Court: Wisconsin Court of Appeals

Page 850

459 N.W.2d 850

157 Wis.2d 332

Dennis LIEVROUW, and Cindy Lievrouw, Plaintiffs-Respondents, v. Julie Ann ROTH, and Classified Insurance Corporation Defendants-Appellants Robert Davis, Defendant.

No. 89-1369.

Court of Appeals of Wisconsin.

Submitted on Briefs April 3, 1990.

Opinion Released July 3, 1990.

Opinion Filed July 3, 1990.

James P. Brennan of Brennan & Collins, Milwaukee, for defendants-appellants.

Todd M. Weir and Mark A. Grady of Otjen, Van Ert, Stangle, Lieb & Weir, S.C., Milwaukee, for plaintiffs-respondents.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

Julie Ann Roth and Classified Insurance Corporation appeal from a judgment entered on a jury verdict that found Roth to be ninety-five percent causally negligent in connection with an automobile accident that injured Dennis Lievrouw. The jury found Lievrouw to be five percent causally negligent, and awarded him approximately $58,000 in compensatory damages and $5,000 in punitive damages.

Roth and Classified assert eight grounds for reversal. First, they contend that the trial court should not have admitted evidence that in October of 1982 Roth had killed a four-year-old pedestrian as the result of an automobile accident that occurred after she had consumed beer. Second, they argue that the trial court should not have permitted Lievrouw to testify that he believed he faced an emergency immediately prior to the collision, and that the trial court should not have instructed the jury on what constitutes negligence in an emergency. Third, Roth and Classified claim that the trial court erred in receiving the entire Wisconsin Motorists Handbook into evidence, and in permitting Lievrouw's counsel to read excerpts to the jury. Fourth, they submit that the trial court should not have permitted Lievrouw's medical expert to give an opinion on Lievrouw's percentage of permanent disability. Fifth, they claim that the trial court should not have instructed the jury on aggravation of an injury by medical malpractice. Sixth, Roth and Classified argue that the trial court abused its discretion by not permitting Classified's physician to re-examine Lievrouw. Seventh, they contend that the trial court should not have submitted the issue of punitive damages to the jury. Finally, Roth and Classified argue that the trial court improperly hindered their attorney's closing argument. We agree that the trial court should not have permitted the jury to consider an award of punitive damages, and we reverse on that issue. We affirm on all other issues.

I.

Lievrouw was injured when the automobile he was driving collided with one being driven by Roth. The accident happened at around noon on April 23, 1985, when Lievrouw was driving southeast on West Fond du Lac Avenue in Milwaukee, and Roth was turning left from east-bound on North Bourbon Street to northwest on West Fond du Lac Avenue. Roth was returning home from a friend's house, where, according to her testimony, she drank two beers between 9:30 and noon that morning.

Lievrouw claimed that Roth went through a stop sign without stopping, and his version was supported by the testimony of an eyewitness, Jacalyn Lee Johnson, who estimated that both Roth and Lievrouw were driving at thirty miles per hour. Roth testified that she stopped at the stop sign, but told the jury that she never saw Lievrouw's car before the accident.

After the collision, Roth pulled into a nearby driveway between her house and the site of the accident, turned around, and returned to the accident scene. She then went home. According to her testimony, Roth told someone at the scene that she was going home to get the car's owner. Roth and the car's owner returned to the accident scene together.

The car's owner testified that when he saw Roth shortly after the accident she looked normal, although upset, and that she did not appear to be under the influence of alcohol. Johnson, however, testified that she believed that Roth was intoxicated. She told the jury that Roth's breath smelled from alcohol, that her speech was slurred, that her eyes were glassy, and that she appeared to be incoherent.

A police officer dispatched to the scene testified that while he could not "remember the exact details," he recalled asking Roth whether she had been drinking, and noted, without objection by counsel, that "she might have stated to me that she had a beer or so." The officer also testified that Roth told him that she went home before the officer arrived at the accident scene, but that he was "unclear whether she had to go home for a driver's license or for--get a held [sic] of the owner of the car." He told the jury that he "probably" smelled the odor of alcohol on her breath, "otherwise I wouldn't have asked her if she had been drinking." The officer did not have Roth perform any field-sobriety tests. He explained:

In my opinion I didn't think she was under the influence and due to the fact that she had left the scene after the accident and went home, it could have been possible she stated to me that she was upset and had a quick drink, or that she could have consumed something while she was gone from the scene which would have affected that type of an arrest.

The officer admitted, however, that he did not recall her saying that she had a drink after the accident, and reiterated that his "personal observation of her" led him to believe "that she wasn't under the influence at the time." Roth testified that she did not drink anything at her house after the accident that morning.

Over defense objection, Lievrouw's attorney was permitted to ask Roth about an earlier accident:

Q The accident with [Lievrouw] on April 23, 1985, was not the first accident that you had been in where you had been drinking beer and then got into a car and drove and were in an accident?

A No, it wasn't.

Q In fact, October 2 of 1982 you had been drinking beer, and you got in an accident with a pedestrian; correct?

A Yes, that's correct.

Q And that pedestrian was killed?

A Yes, that's correct.

Q Is that correct? That was a four-year-old?

A Yes.

II.

A. Punitive Damages

Although seventh in the list of claimed trial-court errors, Roth's argument that there was insufficient evidence to submit the punitive-damages question to the jury raises a significant issue that has never been squarely addressed in Wisconsin, namely, whether deliberately driving while alcohol-impaired warrants imposition of punitive damages. ¹ Accordingly, we discuss it first.

Punitive damages are designed to punish and deter conduct that is "willful or wanton, in a reckless disregard of rights or interests." See Brown v. Maxey, 124 Wis.2d 426, 433, 369 N.W.2d 677, 681 (1985). The Wisconsin Supreme Court has used the shorthand designation "outrageous" to describe this type of conduct. Id., 124 Wis.2d at 431 n. 1, 369 N.W.2d at 680 n. 1. Punitive damages may be awarded in automobile accident cases whether or not the driver had been drinking. See Franz v. Brennan, 146 Wis.2d 541, 546, 431 N.W.2d 711, 713 (Ct.App.1988), aff'd, 150 Wis.2d 1, 440 N.W.2d 562 (1989).

Punitive damages may not be awarded unless there is "clear and convincing evidence" that the defendant's conduct was "outrageous." Brown, 124 Wis.2d at 433, 369 N.W.2d at 681. In order for conduct to be "outrageous" there must be "aggravating circumstances beyond ordinary negligence," Id., 124 Wis.2d at 432, 369 N.W.2d at 681. Even proof that the defendant's conduct was criminal might not be sufficient; the conduct must be so outrageous as to " 'require the added sanction of a punitive damage [award] to deter others from committing acts against human dignity.' " Fahrenberg v. Tengel, 96 Wis.2d 211, 222, 291 N.W.2d 516, 521 (1980) (quoting Entzminger v. Ford Motor Co., 47 Wis.2d 751, 757-758, 177 N.W.2d 899, 903 [1970] ). An award of punitive damages is thus "reserved for cases where the wrongfulness of the defendant's conduct is conspicuous ... [so] that its wrongfulness is apparent to the person who engages in it." Soderbeck v. Burnett County, Wis., 752 F.2d 285, 291 (7th Cir.1985), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 261. The reason is clear:

If one needed great subtlety to realize that one had strayed into the forbidden zone where punitive damages are a sanction, the deterrent effect of such damages would be distorted. Some people would stray into the zone unknowingly; as to them the threat of punitive damages would not deter. Others would steer far clear of the zone, not knowing where it began; as to them lawful as well as unlawful conduct would be deterred.

Ibid.

Trial courts in Wisconsin have a significant responsibility in ensuring that a verdict question on punitive damages is not given to the jury unless the evidence "establishes a proper case" for their allowance. Wangen v. Ford Motor Co., 97 Wis.2d 260, 298, 294 N.W.2d 437, 457 (1980). See also Brown, 124 Wis.2d at 432 n. 2, 369 N.W.2d at 681 n. 2; Walter v. Cessna Aircraft Co., 121 Wis.2d 221, 225-226, 358 N.W.2d 816, 819 (Ct.App.1984). Thus, the trial court "should not submit the issue of punitive damages to the jury in the absence of evidence warranting a conclusion to a reasonable certainty that the party against whom punitive damages may be awarded acted with the requisite outrageous conduct." Bank of Sun Prairie v. Esser, 155 Wis.2d 724, 735, 456 N.W.2d 585, 590 (1990). Stated another way, a question on punitive damages may not be given to the jury unless the trial court concludes that a reasonable jury could find from the evidence that entitlement to punitive damages has been proven by the middle burden of proof, "clear and convincing evidence." See Brown, 124 Wis.2d at 433, 369 N.W.2d at 681. Whether there is sufficient evidence to submit a punitive-damage question to the jury is a legal matter that an appellate court must determine independently. See Bank of Sun Prairie, 155 Wis.2d at 736, 456 N.W.2d at 590; see also Burg v....