Westfall by Terwilliger v. Kottke
| Decision Date | 05 January 1983 |
| Docket Number | No. 80-2227,80-2227 |
| Citation | 110 Wis.2d 86,328 N.W.2d 481 |
| Parties | Clark WESTFALL, by his guardian ad litem, Thomas TERWILLIGER, and Harland Westfall and Dores Westfall, his parents, Plaintiffs-Appellants-Petitioners, v. Walter KOTTKE and Wayne Kottke, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Thomas Terwilliger, Wausau, argued, for plaintiffs-petitioners; Terwilliger, Wakeen, Piehler, Conway & Klingberg, S.C., Wausau, on brief.
David M. Erspamer, Amery, argued, for defendants-respondents; Cwayna, Novitzke, Byrnes, Gust & Williams, Amery, on brief.
This is a review of an unpublished decision of the court of appeals dated September 8, 1981, 104 Wis.2d 744, 314 N.W.2d 363, that affirmed the circuit court's judgment, dismissing Clark Westfall's complaint, after a verdict finding Westfall 90 percent negligent and the defendant Walter Kottke 10 percent negligent. 1 Westfall's complaint was for personal injuries sustained when the motorcycle he was operating collided with a farm tractor driven by Walter Kottke as Kottke made a left turn into a farm driveway.
Because of errors in the instructions, inconsistency of the verdict, and grossly inadequate damages, we reverse. We remand the cause for a new trial on all issues.
The record shows that Clark Westfall was fourteen years old at the time of the accident on July 17, 1978. He was not licensed to drive a motorcycle. He was driving his brother's cycle north on Highway S and was carrying a passenger, Jeffrey Block. As he was proceeding at a speed of 45-50 miles an hour, he saw a farm tractor ahead of him. It was later ascertained that the tractor was owned by Wayne Kottke and was being driven by his father, Walter Kottke.
Westfall saw the tractor ahead of him, and he pulled into the left lane to pass. When Westfall was about 90 feet from the tractor, it suddenly made a left turn into a farm field. Both Westfall and Block testified that Kottke did not signal the turn. Westfall acknowledges he did not sound his horn to signal his intention to pass. Westfall testified that only a second elapsed from the time of the tractor's turn to the time of impact. Kottke said two or three seconds elapsed from the time he began his turn to the time he was hit.
Kottke asserted that he looked to his rear three times prior to making the turn--once about 300 feet from the entrance to the farm, again 100 feet from the driveway, and as he reached the driveway he stopped, looked back, and put out his arm to signal a left turn. He said he did not see the motorcycle until almost the very instant of impact. There were no obstructions to Kottke's view, and it is undisputed that the motorcycle would have been in plain view if any of the alleged observations by Kottke were efficiently performed.
Westfall said he let up on the accelerator but did not have time to apply the brake. He steered for the left ditch because he thought the tractor might remain in the right lane. The impact occurred in the left lane, apparently very close to the edge of the road.
Clark Westfall sustained very serious injuries--a fractured pelvis, knee, leg, and collarbone and severe lacerations, including a large laceration of the scrotum. He suffered a cardiac arrest on the operating table on the day of the accident. He was in extreme pain for over a month. Several extensive surgical procedures were undertaken to correct and overcome his injuries. One procedure involved the complete removal of a hip, its reconstruction, and its replacement. This required the removal of fragmented bones, their rearrangement to proper alignment, screwing them together, and the recreation of the hip socket. Westfall was in a cast from his chest to his toes for a period of two months. A less complete leg cast was needed for an additional period. Painful physical therapy then ensued. When he is older, Westfall will require a hip replacement and may also require a replacement of a knee joint.
The photographs in the record reveal severe scarring over most of his body below the waist. Several of these scars show that portions of the flesh have been gouged out. The evidence shows that Westfall is permanently disabled and will only be able to perform sedentary work. The evidence indicated that sedentary work was not the type of employment that a person of Westfall's qualifications could be expected to perform, and that, rather, he would have been best suited for construction work involving manual labor. An expert witness testified that Westfall's loss of earning capacity would be at least $5 per hour. He estimated that Westfall's lifetime loss of earnings would be $309,000.
Westfall walks with a permanent limp. One leg is one and one-half inches shorter than the other. He has constant pain and will develop arthritis as the result of the injury.
The jury found both Westfall and Kottke negligent. Although it found that Kottke's negligence was not causal, it nevertheless apportioned 10 percent of the negligence to Kottke and 90 percent to Westfall.
The verdict pursuant to stipulation awarded the sum of $26,414.06 for past medical expenses. The jury awarded $18,000 for future medical expenses and $10,000 for past and future pain, suffering, and humiliation. The jury awarded nothing for loss of earning capacity. The jury found that at the time of the accident Walter Kottke was not the servant (agent) of his son, Wayne Kottke, the owner of the tractor.
Westfall's attorney moved for a new trial--because of alleged errors in the instructions, because the verdict was contrary to the evidence, because the damages were inadequate in respect to pain and suffering and loss of earning capacity, and because the verdict was perverse and inconsistent in respect to finding there was no causal negligence on Kottke and then attributing 10 percent of the negligence to him.
The trial judge acknowledged that there were errors in the course of the trial but ruled that they were not prejudicial. He amended the admittedly inconsistent verdict by changing the jury's answer in respect to Kottke's negligence being causal from "no" to "yes" and permitted the jury's apportionment to stand--90 percent negligence on the part of the plaintiff Westfall and 10 percent on defendant Kottke. Accordingly, he entered judgment on the verdict and dismissed the plaintiff's complaint.
The plaintiff Westfall appealed to the court of appeals, which affirmed.
We elected to review the decision of the court of appeals because it appeared that there were errors in instructions that might be prejudicial when viewed in the context of the record. More importantly, it appeared the review presented a significant question in respect to the disposition of inconsistent verdicts by trial courts. Additional facts will be discussed in the course of our discussion of the particular errors alleged.
Turning first to the verdict in respect to the jury's finding of negligence, cause, and apportionment, we find that, in respect to Kottke, the jury's verdict was clearly inconsistent and perverse. It found that Kottke was negligent, but not causally so, yet the jury assessed 10 percent of the negligence to Kottke. The trial court, without expressing any rationale for its action, changed the answer in respect to cause from "no" to "yes."
We conclude this was error, and on this basis alone we are obliged to reverse and remand for a new trial on all issues. The trial court relied without explanation on Bodden v. John H. Detter Coffee Co., 218 Wis. 451, 261 N.W. 209 (1935). In that case the jury was instructed:
"... that in case they found that both parties 'by negligent operation of their respective automobiles, contributed to produce' the collision, they determine 'what proportion of all the negligence producing the collision is attributable' to each party." P. 452, 261 N.W. 209.
In answer to this question, the jury in Bodden assessed 10 percent to the plaintiff and 90 percent to the defendant. In response to another question, the jury found that the plaintiff was negligent as to lookout, but that such negligence was not a cause of the accident. Judgment was entered for the plaintiff for 100 percent of his damages. The defendants appealed. This court reversed, but it did so because it concluded that the instruction and answer in respect to what proportion of the negligence "contributed" to the negligence was implicitly a finding of cause. Hence, the court reversed, concluding that the effect of the jury's verdict under the particular instruction was to find 10 percent causal negligence on the plaintiff and 90 percent on the defendant. It treated as surplusage the finding that the plaintiff's negligence was not causal.
In the instant case, the jury was specifically instructed not to answer the comparative negligence question:
"... unless you first find that more than one person was negligent and that the negligence of more than one person was a cause of the accident."
In the case before us, there is no leeway, as there was in Bodden, for reaching the conclusion that the jury could reasonably have inferred that in answering the comparison question it was also answering the cause question.
Hence, although Bodden lends some credence to the position of the trial court, a position not commented upon by the court of appeals, we are not persuaded that Bodden, under its facts, supplies a precedent for the trial court's determination to treat the finding of no cause in respect to Kottke as mere surplusage.
In the instant case, it is clear that the jury, if it acted in conformity with its instructions, could not have found that Kottke's negligence was not causal and then proceed to attribute a proportion of the responsibility to him.
At any rate, after Bodden, the entire question of inconsistent verdicts was reassessed in Statz v. Pohl, 266 Wis. 23, 29, 62 N.W.2d 556 (1954). Therein we said:
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Table of cases
...U.S., 318 U.S. 236 (1943), §11:101 Welin v. American Family , 2006 WI 81, 292 Wis. 2d 73, 717 N.W.2d 690, Form 5-14 Westfall v. Kottke , 110 Wis. 2d 86, 328 N.W.2d 481 (1983), Form 13-09, Form 13-10 Wikrent v. Toys “R” Us, Inc. , 179 Wis. 2d 297, 507 N.W.2d 130 (Ct. App. 1993), Form 3-45 Wi......