James E. Kochanski v. Speedway Superamerica, LLC, 850 N.W.2d 160

Background

On Feb. 6, 2007, James Kochanski slipped/tripped on snow outside a Speedway store, breaking his arm; surveillance video captured the fall.
Kochanski sued for common-law negligence and under Wisconsin’s safe-place statute (Wis. Stat. § 101.11).
Discovery revealed five former Speedway employees who were on duty at the time; Speedway did not call any former or current store employees at trial and relied principally on the surveillance video.
The trial court gave Wis JI — Civil 410 (absent-witness instruction) at Kochanski’s request; plaintiff emphasized the instruction in closing.
The jury returned a plaintiff verdict (~$317,545); the circuit court affirmed. The court of appeals reversed the circuit court on the jury-instruction ground and remanded for a new trial. The Wisconsin Supreme Court affirmed the court of appeals.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the absent-witness instruction (Wis JI — Civil 410) was proper	The absence of Speedway’s (former/current) employees who had knowledge of snow‑removal/salting justified the inference that their testimony would be unfavorable	The instruction was improper because the uncalled witnesses were not shown to be material, were not peculiarly within Speedway’s control, and their testimony would be cumulative of the video	Instruction was erroneously given — record lacked factual foundation of materiality, control/“more natural” calling, and reasonable basis for a negative inference
Whether the erroneous instruction was prejudicial	The jury could properly weigh the inference along with other evidence to find notice and liability	The instruction allowed plaintiff to supply an essential element (notice) by inference rather than evidence, unfairly prejudicing Speedway	Prejudicial — the inference likely supplied the necessary proof of constructive notice for the safe‑place claim, requiring reversal and a new trial
Whether plaintiff proved notice (actual or constructive) required for a safe-place violation	The surveillance video, testimony about post-fall salting, and the instruction supported a finding that Speedway had notice	Video did not show how long the condition existed; plaintiff produced no evidence of Speedway’s methods/processes or that they were not followed	On the record (absent the improper inference) plaintiff failed to prove notice — no evidence of duration or of processes creating the hazard, so the instruction materially affected the verdict
Proper scope/use of the missing-witness inference	Inference is permissible when facts show a particular witness is material, peculiarly within a party’s control or more natural for that party to call, and the failure to call reasonably suggests concealment	Courts must not presume materiality or control; modern discovery lessens need for broad application; instruction should be sparingly given	Reiterated rule: instruction is a permissible inference (not a presumption) but may be given only when factual record supports materiality, control/“more natural” calling, and a reasonable basis for a negative inference

Key Cases Cited

Graves v. United States, 150 U.S. 118 (1893) (formative statement of the missing‑witness inference)
Ballard v. Lumbermens Mut. Cas. Co., 33 Wis. 2d 601 (1967) (explains limits on absent‑witness instruction and need for record foundation)
Thoreson v. Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 231 (1972) (materiality and availability must be shown; cannot assume passenger saw accident)
Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 274 Wis. 2d 162 (2004) (constructive notice in safe‑place cases generally requires evidence on duration or that methods/processes create the hazard)
Paulsen Lumber, Inc. v. Anderson, 91 Wis. 2d 692 (1979) (missing‑witness inference cannot supply an element of proof for plaintiff’s prima facie case)
Booth v. Frankenstein, 209 Wis. 362 (1932) (absent‑witness instruction describes a permissible inference, not a presumption)