Roundtree v. Samaritan Health Plan Ins. Corp.

• Decision Date: 01 October 1991
• Docket Number: No. 91-0153,91-0153
• Citation: 478 N.W.2d 67,165 Wis.2d 393
• Court: Wisconsin Court of Appeals
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Clyde ROUNDTREE, Plaintiff-Appellant, v. SAMARITAN HEALTH PLAN INSURANCE CORPORATION, a domestic corporation, Defendant, Randolph ROSS IV and Leader National Insurance Company, a foreign corporation, Defendants-Respondents.

Page 67

478 N.W.2d 67

165 Wis.2d 393

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Clyde ROUNDTREE, Plaintiff-Appellant, v. SAMARITAN HEALTH PLAN INSURANCE CORPORATION, a domestic corporation, Defendant Randolph ROSS IV and Leader National Insurance Company, a foreign corporation, Defendants-Respondents.

No. 91-0153.

Court of Appeals of Wisconsin.

Oct. 1, 1991.

Appeal from a judgment of the circuit court for Milwaukee county: Victor Manian, Judge.

Circuit Court, Milwaukee County

REVERSED AND REMANDED.

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

MOSER, Presiding Judge.

Clyde Roundtree (Roundtree) appeals from a judgment of the trial court dismissing his personal injury/damages suit. The trial court granted defendants' motion to dismiss pursuant to sec. 805.14(3), Stats., at the close of the plaintiff's case-in-chief on the grounds that Roundtree had not produced any evidence or testimony sufficient to support a finding of causal negligence against the defendant driver. Because the testimony at trial created an issue of material fact as to lookout, we reverse and remand for a new trial.

On December 13, 1987, vehicles driven by Glynn Golden (Golden) and Randolph Ross IV (Ross), defendant/respondent, collided at the intersection of North 8th and West Burleigh Streets in Milwaukee, Wisconsin. The parties agree that Golden's vehicle entered the intersection against a red signal light and was struck by the Ross vehicle, resulting in injury to a passenger in the Golden vehicle, Clyde Roundtree. Roundtree filed suit against Ross, Leader National Insurance Company and Samaritan Health Plan Insurance Corporation, a subrogated health insurer (collectively, Respondents). Respondents subsequently filed a third-party action against Golden which was voluntarily dismissed after they discovered that Golden had discharged any claim for damages arising out of the accident in bankruptcy.

The bifurcated jury trial on the issue of liability began on November 1, 1990. Roundtree's case-in-chief consisted of testimony from himself and Leonard Glodowski, the Milwaukee police officer who investigated the accident, and of the adverse examination of Ross. After Roundtree rested, the defendants moved for dismissal. The trial court heard arguments of counsel as to speed, lookout, failure to sound horn, and management and control, and then granted the defendants' motion to dismiss pursuant to sec. 805.14(3), Stats. The jury was dismissed; judgment in favor of the defendants entered on December 13, 1990 and amended January 8, 1991.

The test of sufficiency of the evidence is set forth in sec. 805.14(1), Stats., which instructs the court to "consider[ ] all credible evidence and reasonable inferences therefrom in a light most favorable to the [non-movant]." It is incumbent on the court to view the evidence in a light most favorable to the plaintiff by giving him the benefit of the most favorable inferences that can reasonably be made from the evidence presented. ¹ The burden on the movant is heavy; if there is any inference which might reasonably be drawn from the evidence that supports the plaintiff's claim, the motion to dismiss should be denied. ² In this respect, our analysis is the same as that of the trial court. ³ However, because the trial court has advantages for judging the weight, relevancy and effect of the evidence, the trial court's ruling on a motion for dismissal will not be reversed unless clearly erroneous. ⁴ Examination of the trial court's reasoning, as recorded at the conference on the defendants' motion to dismiss held in chambers, shows that an incorrect statement of evidence presented at trial resulted in the trial court's failure to consider a reasonable inference which might be drawn from evidence presented during the plaintiff's case-in-chief. Such a failure is error on the part of the trial court.

Although both parties discuss other liability aspects of the automobile accident, this court holds that the dispositive issue is the necessity for a finding of fact with regard to lookout. In deposition testimony read into the record by the plaintiff, the defendant Ross had made statements regarding the point in time at which he realized an accident could happen; these statements might be considered immaterial by the fact finder. When questioned by Roundtree's counsel, Ross testified that he had seen the Golden vehicle before either automobile entered the intersection and that he first realized that there was a possibility of an accident when the Golden vehicle was approximately 100 feet away from the intersection. Following this testimony, Ross' own counsel sought "clarification" by eliciting from Ross the following: "[w]hen I knew that there was going to be an accident, [Golden] was adjacent to ... [another] car that was ... stopped at the light." A reasonable jury could believe either statement. More importantly, a reasonable jury might well give more credence to testimony elicited by adverse counsel than to testimony made under the guidance of the deponent's own attorney. If a jury could disagree on the facts or the inferences from the facts, the motion must be denied and the ultimate facts determined by the jury. ⁵

In the discussion of the evidence between counsel and the trial court in chambers, following the motion to dismiss, the trial court quoted Ross incorrectly as having testified to a distance of 100 yards rather than 100 feet and indicated a lack of credence in the misquoted testimony. Furthermore, this misperception and resulting lack of credence appears to have been significant in the court's subsequent decision to dismiss.

I think he said a hundred yards his distance. He's--obviously he's not a golfer. Those distances are way off, boy.

Ordinarily, if there was anything to argue about, I would take the motion under advisement and then let the defense put in its case, and then decide after the jury reached a verdict.

... I'm debating in my mind whether there's enough evidence to do that.... There has to be some ... proof that I can base a decision on to proceed with the trial. And at this point, I'm debating whether there is that level of proof, even looking at the evidence most favorably to the plaintiff. (Emphasis added.)

Furthermore, plaintiff had proposed the use of a jury instruction which sets forth the duty of lookout owed by a driver entering an intersection with a green light in his favor.

A driver entering an intersection with the light in his favor does not have an absolute right of way. Such driver, as he enters the intersection, has the duty of maintaining an efficient lookout to determine the presence of other vehicles approaching his course of travel and must also exercise reasonable judgment in calculating the distance and speed of any approaching vehicles so as to determine whether such approaching vehicle will run the light. If after such lookout and calculation it is apparent that the approaching vehicle is going to run the light, then the driver having the light in his favor must...