Xiong v. Kulcinski, No. 2008AP1588 (Wis. App. 10/29/2009)
| Decision Date | 29 October 2009 |
| Docket Number | No. 2008AP1588.,2008AP1588. |
| Court | Wisconsin Court of Appeals |
| Parties | Mai Yee Xiong, Chouader Benjamin Yang, by his Guardian Ad Litem, Mart W. Swenson and Baylao Joseph Yang, Plaintiffs-Respondents, v. Wayne C. Kulcinski, Defendant-Appellant, American Family Mutual Insurance Company, Defendant-Co-Appellant, Gundersen Lutheran Health Plan, Inc., Defendant. |
APPEAL from a judgment of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed.
Before Lundsten, Higginbotham and Bridge, JJ.
Wayne C. Kulcinski and American Family Mutual Insurance Company separately appeal from a judgment entered in a personal injury action. The underlying action arises from an accident in which a vehicle driven by Kulcinski struck Chouader Benjamin Yang (hereinafter Benjamin) on a street near a school where the posted speed limit was fifteen miles per hour when children are present. The circuit court determined that Kulcinski was negligent as a matter of law because he was driving in excess of fifteen miles per hour at the time of the accident, in violation of Wis. Stat. § 346.57(4) (2007-08),1 and a jury subsequently apportioned eighty percent of the causal negligence to him. Collectively, Kulcinski and American Family make three arguments on appeal: (1) Section 346.57(4) is unconstitutionally vague; (2) the circuit court erroneously exercised its discretion in denying Kulcinski's request for a special verdict question as to whether Benjamin was in the crosswalk at the time of the accident; and (3) the jury's verdict should have been set aside because a remark made by Benjamin's attorney during closing argument ran afoul of the circuit court's ruling barring discussion of settlement negotiations.2 We reject each argument and affirm.
¶ 2 This action was commenced by Mai Yee Xiong, Baylao Joseph Yang, and their son, Benjamin, by and through his guardian ad litem, to recover damages suffered by them when Benjamin was struck while in a school zone by a truck driven by Kulcinski.3 American Family was Kulcinski's automobile insurer at the time of the accident.
¶ 3 The following facts are taken from witness testimony and are largely undisputed. At approximately 5:00 p.m. on November 8, 2005, Houadao Yang, who was thirteen at the time, decided to pick up three of his younger siblings, including seven-year old Benjamin, and walk them home from an after-school program at Franklin Elementary School in La Crosse. The school is located on Kane Street approximately one-half block north of the intersection of Kane Street and Gillette Street. Next to the school is a playground. The boundary of the playground, as it is relevant to the present matter, proceeds south from the school to the intersection of Kane and Gillette, then west on Gillette, passing an alley, and continues to the corner of Gillette and Charles Street. The playground is enclosed by a chain link fence, and children playing in the playground are visible from the street. A speed limit sign was posted on the south side of Gillette, east of the intersection of Gillette and Charles, which read:
¶ 4 After signing his siblings out, Houadao walked towards home with the younger children following. Their path initially traced the boundary of the playground, proceeding south from the school to the corner of Kane and Gillette, and then turning west on Gillette until they approached the intersection of Gillette and Charles. Houadao testified that he observed that there were "a lot" of children playing in the playground at the time.
¶ 5 Houadao and two of the children crossed Gillette in the crosswalk, heading south; however, Benjamin had fallen behind and did not cross the street with them. Houadao testified that he and his other siblings were still in the crosswalk, but almost to the street curb, when Benjamin entered the street. He testified that he and his siblings had fully crossed the street by the time Benjamin was hit by Kulcinski's truck, which was traveling eastbound on Gillette. The parties dispute whether Benjamin crossed Gillette in the crosswalk. However, it is undisputed that Benjamin was traveling on the sidewalk in front of the playground prior to crossing Gillette.
¶ 6 Kulcinski testified that he was likely driving twenty to twenty-five miles per hour as he approached the intersection. He testified that he was looking only straight ahead and did not see Benjamin before the accident occurred. Kulcinski also testified that prior to the accident, he did not see any children on the street, sidewalk, playground, or elsewhere in the vicinity.
¶ 7 Immediately prior to the accident, Thomas Alford was driving westbound on Gillette, approaching the intersection of Gillette and Charles. He testified that immediately after the accident, he observed multiple children "on the sidewalk up by the [L]aundromat." The Laundromat is located on the south side of Gillette at the intersection of Gillette and Charles. Alford further testified that immediately after the accident, he noticed that there were children on the sidewalks on both sides of Gillette.
¶ 8 Laura Schefelbine, a passenger in Alford's vehicle, testified that she saw Benjamin, who she described as a "shadowy blur," immediately before he was hit by Kulcinski's vehicle. She further testified that at "about the same time," she saw a person later identified as Houadao come from the opposite corner of Gillette from which Benjamin had come and that "shortly after, I don't know how long, within [a] second, minute maybe, his other siblings came over to see what had happened."
¶ 9 The final witness to the accident, Jane Lang, observed the accident from her home, which was located on Charles north of Gillette. She testified that she saw children playing at the playground, the children exited the playground through a hole in the fence in the alley between Kane and Charles, and four or five children then crossed Gillette heading south. She testified that she observed one of the children cross Charles at the Laundromat heading west, and two of the children travel south on Charles past the Laundromat. She also testified that she observed one child, who was lagging behind the others, cross Gillette when he was hit by a white car.
¶ 10 The Yangs moved for partial summary judgment on the issue of Kulcinski's causal negligence. The circuit court granted the motion, ruling that Kulcinski was negligent as a matter of law for driving in excess of fifteen miles per hour in the posted zone. The court determined, however, that the apportionment of fault as between Benjamin and Kulcinski was a question for the jury. The court also granted a motion in limine brought by American Family to bar the parties from introducing evidence of, making any reference to, or making any arguments regarding any settlement negotiations, demands, or offers. In addition, the court denied Kulcinski's request that a special verdict question be given to the jury asking it to determine whether Benjamin was in the crosswalk at the time of impact.
¶ 11 At the end of the Yangs' closing argument, American Family moved for a mistrial based on a statement made by the Yangs' attorney, which we discuss in more detail in ¶¶31-42 below. American Family argued that the statement violated the court's earlier ruling prohibiting any reference to settlement negotiations. The court denied American Family's motion, explaining that the statement had not tainted the jury in light of both the court's remaining instructions to the jury, and the overall context of the remainder of the attorney's argument.
¶ 12 The jury ultimately apportioned eighty percent of the causal negligence to Kulcinski, and twenty percent to Benjamin. Following the jury's verdict, American Family and Kulcinski moved to change the answer to special verdict question number one, which addressed whether Kulcinski was negligent, from "Yes" to "No." They also moved to set aside the verdict and for a new trial, arguing that a new trial was warranted in the interest of justice because the Yangs' attorney violated the court's ruling prohibiting any reference to settlement negotiations and because the verdict was contrary to law and against the great weight of the evidence. Kulcinski and American Family also argued that a new trial was warranted because the circuit court erred in failing to provide Kulcinski's requested special verdict question regarding whether Benjamin was in the crosswalk at the time of the accident, and because the verdict was the result of the jury's "passion, prejudice and perversity," shocked the conscience, was speculative and was unsupported by the evidence. The circuit court denied the parties' motions and these appeals followed. We address additional facts as necessary in the discussion below.
¶ 13 Kulcinski makes three arguments on appeal: (1) WIS. STAT. § 346.57(4) is unconstitutionally vague; (2) the circuit court erroneously exercised its discretion when it denied Kulcinski's request for a special verdict question as to whether Benjamin was in the crosswalk at the time of the accident; and (3) the circuit court should have set aside the jury's verdict and granted him a new trial because the remark by the Yangs' attorney during closing argument ran afoul of the circuit court's ruling barring the discussion of settlement negotiations. American Family joins in the last of these arguments. In addition, the Yangs seek frivolous appeal costs and fees under WIS. STAT. § 809.25(3). We address each issue in turn.
¶ 14 Kulcinski challenges the circuit court's entry of partial summary judgment against him following its ruling that he was negligent as a matter of law because he was driving in excess of fifteen miles per hour at the time of the accident. We review the grant or denial of summary judgment de novo, employing the...
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