News from Around the State: Trials and Verdicts
Sjuggerud v. ACUITY, A Mutual Insurance Company, et al
Case No. 14 CV 1705
The plaintiff slipped and fell outside of his condominium in February of 2014. ACUITY’s insured, Grassman Lawn Services, was the snowplowing contractor for the condominium complex. At about 6:00 p.m., Sjuggerud left his house to take his two rolling garbage cans down his driveway out to the street. As he did so, he slipped and fell on a patch of ice near the end of the driveway. He sustained a severe right wrist fracture requiring surgery and was expected to undergo a second surgery; medical bills and wage loss were in excess of $100,000.00.
The contract that Grassman had with the condo association required Grassman to salt “within its discretion,” but also required that Grassman undertake plowing and salting in the event of a “weather event.” The property manager for the condo association conceded on cross examination that it was his understanding Grassman was not supposed to come out to the premises to salt unless there had been a “weather event,” which meant measurable snow or ice precipitation. He admitted there had been no snow or ice precipitation on the date of the accident.
The trial court granted the motion for directed verdict at the close of all of the evidence. The court ruled that the parties’ interpretation of the contract only required the contractor to exercise discretion in salting once a weather event had triggered the duty to come out to the property. Because there had been no weather event within the 24 hours prior to the accident, Grassman did not have a legal duty to salt the property (the case continued against the condo association).
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Estate of Russell Baerwolf, et al. v. ACUITY, et al.
Case No. 15 CV 2026
Plaintiff crossed a County Highway on an ATV intending to enter his driveway. He was struck and killed by defendant who was operating a truck with a plow blade on front. Other than issues related to lookout and management/control by both drivers, there were two central legal rulings by the court related to texting while driving and right of way: 1) whether a text sent by the defendant driver minutes before the accident could be a basis for liability; and 2) the law regarding who had the right of way under the circumstances.
First, the court ruled that texting could not be a basis for liability, but allowed evidence about texting under the theory that somehow the fact that the defendant driver had sent a text two to three minutes before the accident could have distracted him because he might have been waiting for a response.
Second, plaintiff’s counsel also argued that the defendant driver’s right of way was not absolute. The judge disagreed and recognized that the only time one forfeits the right of way or that it is not absolute is when the driver is speeding at an uncontrolled intersection. The court found that right of way is absolute in terms of either one side or the other having the right to be at the point where the accident happens. Other rules of the road are somewhat discretionary, such as whether one uses ordinary care with respect to lookout, ordinary care with respect to management and control, ordinary care with respect to using one’s horn, or ordinary care with respect to choice of speed. The ordinary care requirement does not apply to right of way.
The jury found plaintiff 80% at fault resulting in defense verdict. Plaintiff was in his mid-70s. His three adult children presented society and companionship claims. Plaintiff was arguably conscious for roughly 25 minutes and survived for roughly 30 hours. The jury found damages of $40,000 for conscious pain and suffering and $40,000 in loss of society and companionship for each of the children, along with the agreed upon medical and funeral expenses of $138,643. Total damages were $298,643.30.
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Berg v. Rural Mutual Insurance Co., et al.
Case No. 16 CV 48
This case arose from a head-on collision between a pickup truck and a farm tractor hauling a corn planter. Both drivers were farmers. The accident occurred on a clear, sunny spring day on Northside Drive in Jefferson County, Wisconsin. The plaintiff, Randall Berg, was driving his pickup truck weston Northside Drive. At the same time, defendant James Linskens was driving his farm tractor and corn planter east on Northside drive. Mr. Linskens’ corn planter was 16 feet wide and the road was only 20 feet wide. Mr. Linskens had a ditch, tree line, and mailbox on his side of the road limiting his ability to move further to the right. There were no similar obstructions on Mr. Berg’s side of the road. As the vehicles approached one another, each driver expected the other to slow down and pull off onto the shoulder. Mr. Berg testified that he had enough room to safely pass by the tractor and planter but at the last second, Mr. Linskens veered his tractor into Mr. Berg’s pickup truck resulting in a collision. Mr. Linskens testified that he was maneuvering around a mailbox before the collision.
Plaintiff’s theory was that the defendant tractor driver violated the rules of the road requiring each driver to be in his own lane of travel, as much as practicable. (This case preceded the changes to the rules of the road permitting large farm implements to extend over the center line.) There was no dispute that the corn planter was in plaintiff’s lane of travel at all times. The defendant focused on the common sense aspects of the case. Both drivers were farmers accustomed to driving and encountering large farm implements on rural roads and both were well aware of the fact that such farm implements were large, less maneuverable, and often extended beyond the centerline. Defendant argued that this accident would have been avoided had the plaintiff pickup truck driver yielded the road to the defendant tractor driver and allowed him to pass, rather than try to “shoot the gap” and squeeze past the tractor and corn planter. Resulting in a defense verdict.
There was no dispute that Mr. Berg sustained a permanent low back injury in the accident. The parties stipulated to $550,000 in damages before trial and tried the liability case only. The jury found both drivers negligent and split the negligence 78% plaintiff 22% defendant.
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Ziegler, et al. v. American Family Mut. Ins. Co., et al
Case No. 16 CV 38
This case involved a fall from an 8’ step ladder. Plaintiff was the insured’s son. Plaintiff did not sue his father, only the insurance company. The ladder was selected, owned, and placed by our insured at the location of plaintiff’s fall. They were working on a roofing project at a residence owned by the insured, but at which his son lived. Plaintiff was assisting in exchange for repayment of a loan from his father. This was not a workplace or employer/employee situation. Both had ladder experience, although insured’s experience was significantly more than the plaintiff.
The insured owned several other ladders, including an extendable ladder that would have exceeded the roof line. He chose the eight foot ladder because it reached the eight foot roof line and he felt the other ladders would have required him to bend the tin they were placing on the roof on the way up the ladder. The insured felt his ladder choice was appropriate for the job and his placement of the ladder was safe. He set it up to intentionally avoid a “trench” that ran along the ground in front of the residence. The feet straddled the trench. He had no difficulty ascending the ladder 30 minutes before plaintiff’s fall in the same location. Neither of them had been down the ladder in that location before the fall.
Plaintiff had ascended to the roof from a different location that was nowhere near the trench. They needed more materials, so plaintiff started his descent on the ladder. Although he knew the trench was located near the ladder placement, he did nothing to check the ladder’s safety before starting his descent. He never complained to his father about the height of the ladder or the placement. As he placed his second foot down on the first step, the ladder tipped over to plaintiff’s right. He fell and broke his right ankle. After the fall, they both noted the right hinge holding the legs together on that side was broken. Neither plaintiff nor insured ever saw the feet of the ladder go into the trench; similarly, they did not observe at what point in time the hinge on the ladder broke.
There were some interesting evidentiary issues presented at this trial. Plaintiff gave American Family’s claims department a recorded statement 12 days after the fall and stated that he “knew” the metal hinge broke when he stepped on it on his way down. He changed his story at trial and told the jury the hinge broke when it hit the ground. His theory was two-fold. First, he alleged that the insured was negligent for placing the ladder close to the trench, which made the ladder unlevel and unsteady. He also argued the ladder was too short for the project. To support these contentions, Plaintiff used the OSHA regulations that stated a ladder needs to be placed on a stable and level surface and a ladder needs to be three feet taller than the surface on which the person is working. Despite objection that these regulations do not apply to this situation, the judge allowed them in.
Counsel for American Family impeached plaintiff with his recorded statement and argued at trial that the ladder broke when plaintiff stepped on it, as he’d previously admitted. The theory of the case was this was an unavoidable accident and no one was negligent. Further, American Family argued that the plaintiff had not met his burden of proof because he couldn’t prove that the feet of the ladder ever went in the trench; this was just an assumption on plaintiff’s part.
Plaintiff’s counsel argued that this fall was 90% the fault of our insured and 10% the fault of plaintiff. He spent a lot of time in his closing hammering on the “big bad insurance company” that was looking for ways to deny the claim. I objected several times, but Judge Rider allowed all of this. (After the trial was over, she asked the attorneys how other judges have handled the insurance issues in closing. I did not hesitate to tell her that although it is discretionary with the judge, based on my experience, I felt that this exceeded the allowable boundaries. Of course Plaintiff’s counsel did not tell Judge Rider she had allowed too much, but he admitted he has had judges cut him off before when he has attempted to make similar arguments.)
This case was tried to a 12-person jury in Crawford County. It was a one day liability trial. Before trial, the parties agreed to bifurcate damages. Of note, this was Judge Rider’s first civil jury trial. All of the jurors knew at least one other person on the jury. Many of them had significant ladder experience, including OSHA safety training, at their jobs. A handful of those with ladder experience admitted that they have fallen off a ladder before and not injured themselves and/or not sued anyone. The jury ultimately apportioned liability 50/50 between the insured and the plaintiff.
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