899 N.W.2d 381
Wis. Ct. App.2017Background
- On Feb. 8, 2013, plaintiff Lee Gaethke slipped on ice on a sidewalk at The Crossroads Motel and sustained serious leg injuries requiring surgery.
- Gaethke testified the parking lot was slippery so he used the sidewalk, which became icy near his room; two witnesses who came to help (his brother and partner) also slipped and observed extensive ice.
- Meteorologist testimony established a snowstorm ~18 hours before the fall with temperatures that would permit melt and refreeze; a city streets superintendent testified snow/ice could have been removed or treated easily and quickly.
- The Pozders (motel owners) testified by videotaped deposition that they were out of the country and did not attend trial; plaintiffs counsel commented on their absence during closing.
- The court admitted a multi-provider set of medical bills (Exhibit 6) over the Pozders’ hearsay/authentication objections under the residual hearsay exception; the jury allocated fault 65% to the Pozders and 35% to Gaethke.
- The Pozders moved postverdict to change the verdict and for a new trial (challenging sufficiency under Wis. Stat. § 101.11 and common law, admission of medical bills, and alleged outrageous conduct by plaintiff’s counsel); the trial court denied the motions and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency under Safe Place statute (constructive notice) | Pozder(s): no evidence how long ice existed; Merriman controls; verdict speculative | Gaethke: weather, witness observations, and testimony about removal methods support constructive notice | Affirmed: evidence (weather, multiple witnesses, superintendent testimony) supports constructive notice and verdict stands |
| Sufficiency under common-law negligence | Pozder(s): exercised ordinary care (conclusory) | Gaethke: same evidence supports negligence alternative | Court did not reach merits because safe place theory was sufficient; Pozders failed to develop argument |
| Admissibility/authentication of medical bills (Ex. 6) | Pozder(s): bills not certified per §908.03(6m)(b); hearsay; absent medical testimony to establish reasonableness/necessity | Gaethke: bills are patient health care records, authenticated by plaintiff’s testimony and corroborating details; admissible under residual hearsay exception; presumptions apply | Affirmed: bills were authenticated by plaintiff’s testimony and corroborating characteristics, admissible under §908.03(24), and presumptions of §908.03(6m)(bm) apply when bills are in evidence |
| Motion for new trial based on counsel "outrageous conduct" during closing | Pozder(s): remarks about owners’ absence, an interruption by opposing counsel’s wife, and an unnecessary race reference prejudiced jury | Gaethke: comments were minor, court admonished, record shows testimony and cross-examination, and Pozders failed to move for mistrial or preserve record of postverdict hearing | Affirmed: defendant failed to include transcript of the hearing (appellate record incomplete), forfeited mistrial opportunity, and remarks did not show prejudice warranting new trial |
Key Cases Cited
- Kubichek v. Kotecki, 332 Wis. 2d 522 (standards for reviewing sufficiency of evidence and postverdict motions)
- Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 274 Wis. 2d 162 (distinguishing safe place statute from common-law negligence and constructive notice principles)
- Merriman v. Cash-Way, Inc., 35 Wis. 2d 112 (insufficient evidence of constructive notice where duration and formation of ice not shown)
- Mitchell v. State, 84 Wis. 2d 325 (residual hearsay exception may admit statements even if a specific exception’s formal requirements are unmet)
- State v. Anderson, 280 Wis. 2d 104 (same principle for residual hearsay vs. failed specific exception)
- Seifert v. Balink, 372 Wis. 2d 525 (standards for new trial for improper statements of counsel)