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Marco and Ljubica Pozder, d/b/a The Crossroads Motel and Acuity, a Mutual Insurance Company, appeal from a judgment following a jury trial. The Pozders
Background
¶ 2. On February 8, 2013, Gaethke slipped and fell on ice while walking on a sidewalk at the Pozders' motel. He filed a complaint alleging that the Pozders' negligence, under Wisconsin's Safe Place statute and the common law, caused his fall and related injury. A jury trial was held, and the following relevant evidence was presented and events occurred at the trial.
¶ 3. Gaethke testified he arrived at the motel around 7:45 p.m. on February 8. After Ljubica registered him at the front desk, he retrieved a bag from his car and began walking across the parking lot toward his room. Noticing the surface to be slippery, he diverted his direction to the sidewalk. When he first walked on the sidewalk, it was not icy, but as he neared his room, he slipped and fell. In "extreme pain" and unable to walk, he crawled to his room, where he "went unconscious" after looking at his lower right leg. When he regained consciousness, Gaethke called his "life partner," Tara Agnew, and his brother, Henry Gaethke, both of whom responded to the motel, took him to Lakeland Hospital, and eventually brought him back to the motel. Gaethke subsequently went to a second hospital where surgery was performed on his leg and he spent several days recovering. A second surgery was performed at a later time.
¶ 4. Henry testified that the night of Gaethke's fall, Gaethke called him and told him he needed Henry to come to the motel. Arriving there, Henry parked his vehicle "right next to" the door to Gaethke's room and found both the parking lot and sidewalk in that area tо be "very slippery," almost falling himself several times as he walked to Gaethke's room. He observed approximately four patches of ice on the sidewalk near the room. Henry confirmed for the jury that there was "ice all over the place."
¶ 5. Agnew testified that around 10:15 p.m. on the night Gaethke fell, Gaethke called her crying and in pain. She drove to the motel, arriving about an hour after the call. She slipped and fell upon exiting her vehicle, and as she proceeded to Gaethke's room, she observed "ice and chunks of ice all along the sidewalk" and the parking lot to be "shiny" and "like a whole sheet of ice."
¶ 6. Meteorologist Allen Becker testified that there had been snow on the ground in late January that was "persisting undеr
¶ 7. Considering the temperature "for the entire week up to and the day after the accident," Becker testified he was able "to assess whethеr if there was snow on the ground, if it would melt or if it melted would it refreeze. If there was any snow or ice, would it be preserved by the cold temperatures." Becker explained that the temperature at or slightly above freezing "could cause some melting or at least snow to be a little bit wet," and added that the "most obvious explanation" for ice on the sidewalk around the time of Gaethke's fall "would be the snowstorm of the day before .... After the snow stops falling, the temperature cools into the 20s, so that would maintain the snow, and then that obviously could explain the presence of ice." If there was ice on the sidewalk, Becker testified, it could have "come from days before" or "formed from the effects of the snowfall" from the day рrior to Gaethke's fall.
f 8. John Prijic, superintendent of streets for the City of Kenosha, testified he had been removing snow and ice from streets and sidewalks for thirty-two years and that ice and snow at The Crossroads Motel "could have been removed and made safe" in a timely, simple, and inexpensive fashion on February 8, 2013, by "shovel, snow blow, or plow." "[T]hen if there's any residual snow or ice, you can remove that or treat that with chemicals," which can be obtained from "any hardware store." Once deicing material is applied, it takes anywhere from ten minutes to an hour to make an icy surface no longer slippery and dangerous. Prijic testified that sand can also be used to "provide immediate traction."
¶ 9. During the trial, the Pozders objected — on grounds of hearsay and lack of proper authentication— to the introduction of medical bills and a summary of those bills. The only medical testimony presented to the jury came from the deposition of Dr. William Yoder. During that testimony, Yoder, when shown the summary of the bills (but not the bills themselves), indicated he was not "qualified to give an opinion" as to the "actual amounts that are typically charged" for the services. The circuit court overruled the Pozders' objection and admitted the documents, Exhibit 6, finding they were sufficiently authenticated by other evidence and were admissible under Wis. Stat. § 908.03(24), the "residual hearsay" exception.
¶ 10. The Pozders did not attend the trial. Their testimony was videotaped a month earlier and played for the jury at trial. In her testimony, Ljubica stated shе and Marco would not be at the trial because they would be in Australia for three months visiting family. During his initial closing argument, Gaethke's counsel stated the Pozders "couldn't wait a month to come here to court to tell you how this accident happened." The Pozders' counsel objected. A brief discussion ensued between counsel for both parties and the court, which discussion was interrupted by the wife of Gaethke's counsel, who herself is not an attorney. Later, during rebuttal argument, Gaethke's counsel made a reference to the race of one of Gaethke's witnesses
¶ 11. The jury found the Pozders sixty-five percent negligent and Gaethke thirty-five percent negligent in relation to Gaethke's fall. The Pozders filed a postverdict motion raising the same issues as in this appeal. The circuit court denied the motion, and the Pozders appeal.
Discussion
¶ 12. The Pozders contend the circuit court erred by denying their postverdict motion to change the jury's verdict finding them negligent. They assert the evidence was insufficient to support the finding under either Wisconsin's Safe Place statute, Wis. Stat. § 101.11(1), or the common law. They further argue the court erred in admitting the medical bills, Exhibit 6, into evidence and in denying their postverdict motion for a new trial based upon "outrageous conduct" by Gaethke's counsel. We disagree with each point.
Request to Change Jury's Answer on Verdict
¶ 13. The first question on the special verdict asked the jury if the Podzers were "negligent with respect to maintaining the sidewalk" at the motel on the dаte Gaethke fell. The jury answered this question "Yes." The circuit court denied the Pozders' postverdict motion to change the answer to "No."
¶ 14. In reviewing a circuit court's denial of a motion to change the jury's answer to a verdict question:
[W]e view the evidence in the light most favorable to the verdict and affirm the verdict if it is supported by any credible evidence. We search the record for credible evidence that sustains the verdict, and if the evidence gives rise to more than one reasonable inference, we accept the inference the jury reached.
Kubichek v. Kotecki,
f 15. The Pozders contend the evidence is insufficient to sustain the jury's "Yes" answer under either a safe place statute or common law theory of negligence. As to the safe place statute, they argue the evidence did not show they had notice of the unsafe condition prior to Gaethke's fall as required for liability under the statute. As to common law negligence, they conclusorily assert they "exercised ordinary care under the circumstances."
¶ 16. An owner is liable under the safe place law for an unsafe condition associated with a premises if he/she has "actual or constructive notice" of the dangеrous condition. See Rosario v. Acuity & Oliver Adjustment Co.,
¶ 17. Relying heavily upon our supreme court's decision in Merriman v. Cash-Way, Inc.,
¶ 18. The plaintiff in Merriman slipped and fell on ice in a store parking lot. Id. at 114. Ajury found the defendant store owner negligent, based upon the safe place statute, for failing to apply sand or salt to maintain the area in a safe condition. Id. at 114-15. On a postverdict motion, the circuit court set aside the jury's finding of negligence, concluding there was no credible evidence the store owner "knew or should have known of the dangerous condition of the area where the plaintiff fell." Id. at 115. On appeal, our supreme court agreed the evidence was "insufficient to impose constructive notice," stating:
[T]here is no evidence as to how long the ice condition had existed prior to the plaintiffs fall. There is no evidence as to the extent of the ice patch on the day of the accident or as to whether there were additional patches of ice in the parking lot. There is no evidence of weather conditions which would have precipitated the formation of this ice patch. Without evidence as to how long the hazard had existed, so as to warrant the assumption that a vigilant owner would reasonably have discovered it and repaired it, the defendant cannot be held to have had constructive notice of the defect.
Id. at 116-17.
f 19. The case now before us differs dramatically. Here, Gaethke testified that just moments before he fell, he observed the parking lot to be slippery, so he diverted to the sidewalk where he eventually slipped and fell. Henry and Agnew provided additional evidence as to the extent of ice on the parking lot and sidewalk, including that they both slipped on ice after arriving to assist Gaethke. Henry testified there was "ice all over the place," and Agnew testified the parking lot looked "like a whole sheet of ice" and she observed "ice and chunks of ice all along the sidewalk."
¶ 20. Most significantly, unlike in Merriman, in this case the jury heard evidence from which it could reasonably infer the icy conditions had existed for a sufficient amount of time prior to Gaethke's fall "to warrant the assumption that a vigilant owner would reаsonably have discovered" and addressed the icy conditions by the time they contributed to the fall. See id. at 116. Meteorologist Becker testified to the weather conditions in the area
¶ 21. Because the evidence was sufficient to support the verdict under a safe place theory of negligence, we need not address the Pozders' additional assertion that the evidence was insufficient to support the verdict under a common law theory. Furthermore, we also do not address this assertion because they have failed to sufficiently develop an argument in support of it. See Clean Wis., Inc. v. PSC,
Medical Bills
f 22. Over the Pozders' objection, the circuit court admitted medical bills, Exhibit 6, into evidence at trial. The Pozders argue the court erred in doing so because the bills were not properly authenticated pursuant to Wis. Stat. § 908.03(6m)(b) and were inadmissible hearsay. They further insist that because the requirements of § 908.03(6m)(b) were not met, a point Gaethke does not dispute, key presumptions from § 908.03(6m)(bm) do not apply and because they do not apply, testimony from medical personnel was necessary — but not presented — in order to authenticate the bills and prove they stated the reasonable value of the services provided to Gaethke and that the services were reasonable and necessary to his care. Without admission of the bills, the Pozders state, "the jury would have had no way to determine that Mr. Gaethke was to be awarded $67,303.23." We conclude the medical bills were properly authenticated, properly admitted pursuant to the residual hearsay exception, § 908.03(24), and entitlеd to the presumptions of § 908.03(6m)(bm).
f 23. An appellate court "review [s] a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard. In making evidentiary rulings, the circuit court has broad discretion." Martindale v. Ripp,
¶ 24. Wisconsin Stat. § 908.03(6m) provides in relevant part:
(a) Definition. In this subsection:
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2. "Patient health care records" has the meaning given in [Wis. Stat. §] 146.81(4).
(b) Authentication witness unnecessary. A custodian or other qualified witness required by sub. (6) is unnecessary if the party who intends to offer patient health care records into evidence at trial... does one of the following at least 40 days before the trial...:
1. Serves upon all... parties [a] ... duplicate of the patient health care records ... certified by the record custodian.
2. Notifies all. . . parties that [a] . . . duplicate of the patient health care records . . .certified by the record custodian is available for inspection and copying....
(bm) Presumption. Billing statements or invoices that are patient health care records are presumed to state the reasonable value of the health care services provided and the health care services provided are presumed to be reasonable and necessary to the care of the patient....
¶ 25. The Pozders concede the bills in Exhibit 6 satisfy the meaning of "patient health care records" in Wis. Stat. § 908.03(6m). They argue, however, that the bills were inadmissiblе because Gaethke did not satisfy the requirements of § 908.03(6m)(b); specifically, the records were not "certified" and Gaethke failed to serve the Pozders with a duplicate copy of them or notify the Pozders that they were available for inspection and copying.
¶ 26. In rejecting the Pozders' trial objection to the admissibility of the medical bills, the circuit court concluded as to their authenticity that Gaethke himself could testify regarding whether the bills related to his injury. The court further pointed out that the bills all had "some sort of identifying characteristic" that supported a finding that they were what Gaethke claimed they were — bills for medical expenses he incurred as a result of his fall at the motel. Specifically, the court noted that "each [bill] has а health care provider at the top. They all have Mr. Gaethke's name on them. And they all give a date and talk about issues of the ankle. They are different providers all, the Foot Clinics of Wisconsin, or Family Foot Clinics, United Hospital, St. Catherine's."
¶ 27. Wisconsin Stat. § 909.01 provides: "The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Examples of "authentication or identification conforming with the requirements of [§] 909.01," include "[testimony of a witness with knowledge that a matter is what it is claimed to be" and "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, takеn in conjunction with circumstances." Wis. Stat. § 909.015(1), (4).
¶ 28. Significantly, Gaethke himself provided "testimony of a witness with knowledge that a matter is what it is claimed to be," by testifying that he had had the opportunity to study Exhibit 6 and, other than the top summary page, all of the pages in Exhibit 6 were bills for medical treatment he received in relation to the injury he incurred to his ankle
¶ 29. The Pozders also maintain the bills are inadmissible hearsay and the circuit court erred in admitting them into evidence pursuant to the residual hearsay exception, Wis. Stat. § 908.03(24). That provision states that a statement is not excluded by the hearsay rule if it is: "A statement not specifically covered by any of the foregoing [twenty-three] exceptions but having comparable circumstantial guarantees of trustworthiness." Id. The Pozders assert sub-sec. (24) is "not applicable" in this case because it includes the language "not specifically covered by any of the foregoing exceptions" and
there is a specific sub-section [§ 908.03(6m)] dealing with the admissibility of patient health care records that was not complied with. [Section 908.03(24)] says the Court is allowed to invoke [subsec.] (24) only if the statement was not specifically covered by any of the foregoing exceptions to the hearsay rule.
f 30. We reject the Pozders' three-sentence "argument" on this point because they fail to sufficiently develop it and fail to cite to any case law supporting their position. See Clean Wis., Inc.,
¶ 31. Lastly, the Pozders assert that the presumption of Wis. Stat. § 908.03(6m)(bm) — that "Milling statements or invoices that are patient health care records are presumed to state the reasonable value of the health care services provided and the health care services provided are presumed to be reasonable and necessary to the care of the patient" — does not apply in this case because the requirements of § 908.03(6m)(b) were not satisfied. We also reject this "argument"
¶ 32. That said, we further note that the Pozders identify no language in Wis. Stat. § 908.03(6m) — and we can find none — indicating the presumption of § 908.03(6m)(bm) only applies if the requirements of subsec. (b) are satisfied. To the contrary, we have previоusly stated, "after the passage of [§] 908.03(6m)(bm), 'a party desiring to prove the reasonableness of a medical expense need no longer have a qualified expert so testify,' as long as bills reflecting past medical expenses are: (1) received into evidence; and (2) patient health care records." J.K. v. Peters,
"Outrageous Conduct" by Gaethke's Trial Counsel
¶ 33. The Pozders also contend the circuit court erred in not granting their motion for a new trial on the basis that Gaethke's counsel еngaged in "outrageous conduct" during closing arguments. We affirm on multiple grounds.
¶ 34. "We review a circuit court's decision to deny a motion for a new trial under an erroneous exercise of discretion standard." Seifert v. Balink,
¶ 35. The circuit court held a hearing on the Pozders' postverdict motion on January 28, 2016. In its February 3, 2016 "Order for Judgment," the court stated that at that January 28 hearing it set forth "on the record in open court" the reasons for its denial of the Pozders' postverdict motion. We are not, however, privy to the court's reasons because the Pozders failеd to ensure the transcript of this key hearing was included in the record.
¶ 36. "It is the appellant's responsibility to ensure completion of the appellate record and 'when an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court's ruling.' " State v. McAttee,
Grant has failed to ensure that the record contains a transcript of the circuit court's oral ruling at the hearing on Grant's postconviction motions. Because the circuit court's written order refers back to the circuit court's oral reasoning at that hearing, Grant's failure to include the transcript makes it impossible for this court to review the circuit court's reasons for denying Grant's motions. The absence of this transcript is a second, independent basis on which this court rejects Grant's arguments.
See also Jocius v. Jocius,
f 37. Additionally, the Pozders forfeited their opportunity to seek a new trial by not moving for a mistrial prior to the jury returning its verdict. Seifert,
f 38. For the forestated reasons, we reject the Pozders' appeal related to the allegedly "outrageous" conduct of Gaethke's counsel. That said, the Pozders' new trial request fails on the merits as well.
¶ 39. The Pozders make three complaints regаrding the conduct of Gaethke's trial counsel during closing arguments. Their first and second complaints relate to the fact the Pozders were personally absent during the trial, testifying by videotaped deposition taken a month before trial. First, referring to testimony by Ljubica in which she stated she and Marco would not be present for the trial because they would be in Australia for three months visiting family, Gae-thke's counsel stated that the Pozders "couldn't wait a month to come here to court to tell you how this accident happened." Second, the transcript indicates that as the circuit court was sustaining an objection by the Pozders' counsel to this comment, the wife of Gaethke's counsel "interrupt[ed]." The transcript does not identify anything regarding the nature of the interruption, it merely says "Interruption by Mrs. O'Connor." After the interruption and discussion related to the objection, the court stated: "You don't know the reasons why. We don't know. You aren't going to speculate beyond what — ," at which point Gaethke's counsel apologized and stated, "I won't go there."
Now, each person saw it differently and each person told it differently, but our client went out and took photographs that are corroborative evidenced[5 ] She said I took these photographs. It shows it. You can loоk at these photographs. No one is saying these are staged. No one is saying they weren't taken when they said they were taken. No one is saying they're not on her phone, that these are the photographs that were taken on her phone and if she's a liar and a cheat and she's some horrible person, she happens to be African American, then okay, prove these photos weren't taken when they were on her phone when she said they were taken, because I believe that the way that phones work is that you can't do that. You can determine what order they were taken and when they were taken.
And basically over and over again he said basically, ladies and gentlemen of the jury, you have to believe what my clients had to sаy because their story never changed, and I suggested that their story never changed because one, they wouldn't make concessions, and two, because their story was manufactured, and their story is inconsistent with the science and inconsistent with the evidence, and that the science and the evidence will show that they had plenty of time, and that there is no way in the world if what they're telling you is true that these photographs could have been taken. It's absolutely not true as to you've got to say that I don't believe my eyes. (Emphasis added.)
¶ 41. "An order for a new trial based on improper statements of counsel is appropriate if it 'affirmatively appear [s] that the remarks prejudiced the complaining party.'" Seifert,
¶ 42. As to the statement by Gaethke's counsel that the Pozders "couldn't wait a month to come here to court to tell you how this accident happened," which brief statement was made in the midst of his thirty-two page initial closing argument, the jury heard the circuit court admonish Gaethke's counsel for this comment. Furthermore, the jury heard the taped testimony of Marco and Ljubica, which presented their "side" of the case, explained why they would not be able to attend the trial, and showed they were subjected to cross-examination by Gaethke's counsel. The Pozders have fаiled to convince us this comment by Gaethke's counsel was of any consequence.
f 43. As to the interruption by the wife of Gae-thke's counsel during the circuit court's ruling on the "couldn't wait a month" statement, the transcript does not identify anything regarding the nature of the interruption. As a result, we have no basis for concluding this interruption had any prejudicial impact on the Pozders' case.
By the Court. — Judgment affirmed.
Notes
We will use "the Pozders" to occasionally refer to only Marco and Ljubica Pozder and to occasionally refer to all defendants-appellants.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
The Pozders argue " [i]t is important to emphasize that the weather data [Becker] obtained was from sources located anywhere from 12 miles to 27 miles away" from the motel. However, Becker testified that in reaching his conclusions he reviewed ten weather stations within about a thirty-mile radius of the motel; and considering the temperature, snowfall, and precipitation data, he found "a high degree of consistency" among the stations. He further indicated the four stations surrounding the motel "were all within one or two degrees of each other." From this testimony, the jury could reasonably conclude the weather conditions at the motel in the days and hours leading up to Gaethke's fall were consistent with the conditions to which Becker testified.
Multiple witnesses, including Gaethke, testified Gaethke first received medical care on February 9, 2013, at Lakeland Hospital for the injury he sustained to his lower leg the night of February 8, 2013. Correspondingly, the first bill in Exhibit 6 is from "AuroraLakeland Medical Center," and shows itemized charges for various prоducts and services provided on February 9, 2013, including "Tibia and Fibula 2 View Rt" and "Apply Splint Long Leg." (Emphasis added.) Gaethke also testified that at Lakeland "[t]hey drugged me up and sent me home," which testimony appears consistent with charges on the bill for "Drug/Self Admin Ondansetrom ODT 4 M," "Hydromorphone Inj 1 Mg/Ml 1 Ml," and "Hydrocodone/APAP 5-325 MG Tab." Another bill in Exhibit 6 identifies services provided at "Aurora Lakeland Med" on February 9,2013, and includes charges for "XRAY: Lower Leg" and "XRAY: Knee."
Gaethke testified he subsequently went to a second hospital, "St. Catherine's" in "Kenosha," where he was treated for several days. Dr. William Yoder testified "St. Catherine's Medical Center" in Kenosha, Kenosha Hospital, and Kenosha Medical Center, comprise "United Hospital System." (Emphasis added.) Exhibit 6 contains numerous pages of bills with itemized charges from "United Hоspital System" as well as bills for services provided by various named physicians at "UHS-St. Catherine ⅛ Campus" from February 10 through 14, 2013. (Emphasis added.) Gaethke testified he had surgery at this second hospital, and one of the UHS bills includes February 12, 2013 charges for, inter alia, "OR ROOM," "RECOV ROOM" and "Anesthesia" supplies, as well as February 13 and 14 charges for "Gait Training." In his testimony, Yoder stated Dr. Stephenson performed the first surgery on Gaethke's leg, and a three-page bill in Exhibit 6 from "Family Foot Clinics of WI SC" shows a February 12, 2013 charge for provider "Stephenson" for "Treat Lower Leg Fracture."
Gaethke testified "Dr. Stephenson" performed a second surgery on him, and Yoder testified that during the second surgery, "some of the hardware" that had been implanted during the first surgery was removed. Exhibit 6 includes a June 28, 2013 UHS bill that includes itemized charges for "OR Rоom," "Hardware Removal," "Recov Room," and "Anesthesia" supplies, and the Family Foot Clinics bill shows a charge for provider "Stephenson" related to "Removal of Support Implant" and "Flouroscope Examination" on June 28, 2013.
Gaethke testified to also being treated by Yoder, which treatment included Yoder giving him "a cortisone shot" in his ankle for pain. A bill in Exhibit 6 from "Family Foot & Ankle Clinics of Wisconsin LLC" contains a charge for "Ultrasound Guided Cortisone" performed by "Yoder, William" on October 10, 2013. In his testimony, Yoder described how after a surgery inserting metal and screws, such as Gaethke's surgery, a cast is put on. The Family Foot Clinics bill includes charges on March 28 and April 25, 2013, related to Stephenson for "Removal/ Revision of Cast," as well as "X-Ray Exam of Ankle." Yoder described hоw after a cast has been worn, "progressive weight bearing" is begun by putting a "boot" on the patient. The Family Foot Clinics bill shows an April 25, 2013 charge related to Stephenson for "Walk Boot Non-Pneumatc Prefab." Yoder testified that Gaethke visited him for care on five different occasions, and the billing records from Family Foot & Ankle Clinics indicate Yoder provided services to Gaethke on five separate dates between August 29, 2013, and March 9, 2015, with this latter date being a date to which Yoder specifically testified treating Gaethke.
Here, Gaethke's counsel appears to be referring to Tara Agnew. Both she and Gaethke testified that they live together and have two children, and the testimony at trial was that Agnew took photos of the motel property following Gaethke's fall.