Olson v. Dingel
| Decision Date | 01 April 1992 |
| Docket Number | No. 91-1523,91-1523 |
| Citation | 168 Wis.2d 775,486 N.W.2d 36 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Christopher and Lori OLSON, Plaintiffs-Appellants, v. Charles DINGEL and Allstate Insurance Company, Defendants-Respondents, Wisconsin Natural Gas Company, Defendant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Racine county, Wayne J. Marik, Judge.
Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.
A jury found Christopher Olson 75% contributorily negligent in causing the knee injury he suffered while trying to escape from a dog owned by Charles Dingel. Olson argues that the evidence is insufficient to support the verdict, that he should have been granted a new trial in the interest of justice and that, if the verdict is allowed to stand, he should be allowed to recover 25% of the stipulated damages. None of his arguments persuades us; we therefore affirm.
Olson works for Wisconsin Natural Gas Company locating and marking gas lines on customers' properties. On August 3, 1988, Olson was sent on a locating job at the Dingels' next-door neighbors. He had been to this address three or four times before and had observed a dog barking in a pen outside the Dingels' house. He parked his gas company van across the street from the houses, approximately at the property line between the Dingels and their neighbors.
Olson collected his locating equipment--a small receiving unit and a can of spray paint--and began walking toward the Dingels' neighbors' house. On this occasion, too, he heard the dog barking. He ignored it, however, because in the past the dog had been penned. When the dog continued barking, Olson looked up and saw that the dog was not penned. The dog--an apparently healthy three-year-old retriever weighing sixty pounds--suddenly began growling and charged at him. Olson was approximately 100 feet away from his van; the dog was about the same distance from Olson and somewhat nearer to the van.
When the dog charged at him, Olson ran back to the van and entered it through the sliding door on the side facing away from the Dingels' property. As he jumped into the van, he struck his knee. When he shut the door and looked out the window, the dog was outside the van, barking.
Olson saw his family doctor the next day and an orthopedic surgeon several months later when problems with his knee continued. The parties stipulated damages to be $25,000.
The case was submitted to a jury on a five-question special verdict. The jury determined that: (1) it was the Dingels' dog which chased Olson; (2) the chasing was a cause of Olson's injury; (3) Olson was negligent with respect to his own safety; (4) Olson's negligence was a cause of his injury; and (5) Olson's injury was 75% attributable to Olson and 25% attributable to the dog.
On motions after verdict, Olson sought to have the answers to questions three and four changed from "yes" to "no," to have the answer to question five be stricken, and judgment for $25,000 entered in his favor. In the alternative, he asked that the answer to question five be changed from 75%/25% to 25%/75%. Olson also asked that, should both those motions be denied, he be granted judgment for 25% of the stipulated damages amount. Finally, he requested a new trial on the ground that the verdict is contrary to the evidence and to the interest of justice. All motions were denied. Olson appeals.
The first issue is whether the evidence is sufficient to support the jury verdict that Olson was causally negligent. 1 When a party seeks to change a jury's answers on causation, we must view the evidence in the light most favorable to the verdict. Wausau Underwriters Ins. Co. v. Dane County, 142 Wis.2d 315, 326, 417 N.W.2d 914, 918 (Ct.App.1987). If there is any credible evidence which, with any reasonable view, fairly admits an inference that supports the jury's finding, neither the trial court nor this court should change that finding. Ferraro v. Koelsch, 119 Wis.2d 407, 410, 350 N.W.2d 735, 737 (Ct.App.1984), aff'd, 124 Wis.2d 154, 368 N.W.2d 666 (1985). Furthermore, we need only consider that evidence which supports the verdict. Chart v. General Motors Corp., 80 Wis.2d 91, 106, 258 N.W.2d 680, 686 (1977).
The record here does contain some credible evidence that Olson was causally negligent. When the dog charged, Olson was approximately 100 feet from his van. The dog was approximately 75 to 100 feet from Olson and 60 to 75 feet from Olson's van. Furthermore, Olson was only about 10 feet from the neighbors' house when the dog began to run toward him. Olson testified, "I don't think I can out run a dog," yet he attempted that very feat. The jury may have concluded that the prudent person in that situation would have sought safe haven at the neighbors' house, ten times closer than the van was.
Olson also testified that the dog never caught him or reached the truck before him and that once he (Olson) started running, he never looked back to see where the dog was. The jury may have concluded from that testimony that the dog ceased the chase before Olson reached the van. If the dog was closer to the van than Olson was when the chase began, the jury's inference that the dog stopped chasing Olson--while not necessarily the only correct inference--is nonetheless a reasonable one.
Bruce Friedbauer, Olson's supervisor, also testified. Friedbauer stated that when Olson reported the incident, Olson said he injured his knee when he "dove" into the van to escape a dog. Olson himself testified that he struck his knee when he "jumped" into the van. If the jury believed the dog had given up the chase, the jury also may have concluded that Olson did not exercise due care when he "dove" or "jumped" into the van. That inference, too, is reasonable. The jury verdict must stand.
The next issue is whether the trial court erred by denying Olson's motion for a new trial in the interest of justice because the verdict was against the great weight of the evidence. We conclude it did not.
A new trial may be granted in the interest of justice when the jury findings are contrary to the great weight and clear preponderance of the evidence, even though the findings are supported by credible evidence. Priske v. General Motors Corp., 89 Wis.2d 642, 662, 279 N.W.2d 227, 236 (1979). The trial court's ruling on a motion for a new trial is highly discretionary and will not be reversed on appeal absent an abuse of discretion. Id. at 663, 279 N.W.2d at 236. Our review is of the trial court's ruling on the motion for a new trial. In other words, we do not seek to sustain the verdict of the jury but to sustain the findings and order of the trial court. Krolikowski v. Chicago & N.W. Transp. Co., 89 Wis.2d 573, 580, 278 N.W.2d 865, 868 (1979).
We first note that the trial court approved the verdict in all respects. Second, in denying the motion for a new trial, the trial court discussed the law of contributory negligence; sec. 174.02, Stats., the statute imposing upon dog owners strict liability for injuries their animals cause; and the question the jurors asked seeking clarification on question five of the verdict. 2 The trial court found that the verdict, although "perhaps a surprising result," was not caused by jury confusion or reliance upon improper factors. The court thus concluded that there was "no basis here for granting a new trial in the interests of justice since it appears that the jury was careful, cautious, sought some clarification when they felt it was necessary and then answered the questions that we asked of them." The trial court's analysis reflects neither a mistaken view of the evidence nor an erroneous view of the law. We therefore conclude that denying the motion for a new trial was a proper exercise of discretion. See Krolikowski, 89 Wis.2d at 581, 278 N.W.2d at 868.
Finally, Olson contends that even if the verdict is permitted to stand, he is entitled to recover 25% of the stipulated damages. He likens his situation to that of the plaintiff in Foley v. City of West Allis, 113 Wis.2d 475, 335 N.W.2d 824 (1983). There, the plaintiff was injured in a car accident caused by another party. A jury found her negligent with respect to her own safety by failing to wear the available seat belt and that this negligence caused her injury. The jury denied recovery because her "passive" negligence was greater than the "active" negligence of the defendants. Id. at 482, 335 N.W.2d at 827.
The supreme court disagreed, and held that:
When negligence consisting of failing to wear an available seat belt is not a cause of the collision but is a cause of a party's injury, such negligence should not be used to determine the injured party's contributory negligence for purposes of sec. 895.045, but should be used only to reduce the amount of damages recoverable.
Id. at 478, 335 N.W.2d at 826. Based on this language, Olson contends that his 75% contributory negligence should be used simply to reduce his damages, and that he thus should recover 25% of the $25,000, or $6250.
Olson asserts that just as in Foley where the plaintiff did nothing to cause the accident, he also "did nothing to cause the dog to attack." Olson's argument does not persuade us because we do not find the Foley analysis particularly applicable. The supreme court disagreed that the terms "active" and "passive" negligence even apply to the failure to wear an available seat belt. Id. at 484-85, 335 N.W.2d at 829. Instead, it termed that failure "seat-belt negligence." Id. at 488, 335 N.W.2d at 830. We conclude that Foley should be limited to the failure to wear a seat belt just as the terms "active" and "passive" negligence as used in automobile guest cases are limited to those types of cases. Cf. Kaslo v. Hahn, 36...
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