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Swenson v. Wal-Mart Stores6/22/2000
APPEAL from a judgment of the circuit court for Dane County: MARYANN SUMI, Judge.
Affirmed.
. Wal-Mart Stores, Inc. and its insurer appeal from a judgment in this personal injury action by Elizabeth Swenson. There are three issues. First, whether Swenson has a claim for damages for anxiety about future consequences from her injury; second, whether certain evidence was properly admitted; and third, whether the damage award was excessive. We affirm on all issues.
. Swenson's claim arose from an incident at a Wal-Mart store in 1994. A handrail in a handicapped restroom pulled away from the wall, causing her to fall to the floor. Wal-Mart admitted liability, and the trial was on damages only.
. Some of Swenson's medical history before the incident is material to the appeal. Swenson suffers from an ongoing condition which causes cysts to form in her spine. In 1987 Swenson underwent a spinal fusion which included the insertion of rods in her back. In 1991 Dr. Whiffen proposed that the rods be removed to help obtain accurate diagnostic images. The rods were removed, and over the next several months Swenson's back weakened and eventually collapsed. Later in 1991 Dr. Zdeblick inserted new rods, which remained in Swenson's back on the date of the Wal-Mart incident. After Swenson's fall she experienced pain that Dr. Zdeblick said might be relieved by removal of the rods. The rods were removed in late 1994.
. Part of Swenson's claim against Wal-Mart sought damages for her pain and suffering in the form of her ongoing anxiety that, without the rods, her spine may again collapse. Wal-Mart argues that evidence of Swenson's fear of spinal collapse should not have been admitted because the evidence did not satisfy a two-part test described in Brantner v. Jenson, 121 Wis. 2d 658, 668, 360 N.W.2d 529 (1985). However, we do not read Brantner to establish a test that the trial court applies to determine whether evidence is admissible. Rather, the test is a description of what a plaintiff must prove to the fact finder in order to recover damages.
. In Brantner the court addressed a question of first impression, namely, what standard should be adopted to determine when damages may be recovered for mental distress or fear of future harm arising from a negligently caused physical injury. See id. at 668 (court of appeals recognized that no Wisconsin case adopts such a standard). The supreme court described the two-part test adopted in this court's Brantner opinion. Id. The supreme court did not clearly adopt that test itself, but it did appear to regard it as a reasonable statement of law. See id. at 669. The test, as described by the supreme court, sets forth two elements which a plaintiff "must establish by a preponderance of the evidence to prove that he or she is reasonably certain to endure mental distress as a consequence of the injury." Id. at 668.
. Wal-Mart erroneously argues that this test should be applied to determine whether certain evidence of Swenson's anxiety about future adverse consequences from her fall is admissible. Wal-Mart's confusion may arise from statements in Brantner which could be read as casting the issue in terms of whether certain testimony by the plaintiff and a surgeon was admissible. See, e.g., Brantner, 121 Wis. 2d at 660-61, 669-70. However, the supreme court expressly rejected the parties' description of the issue as an evidentiary one. Id. at 660. Instead, it stated the issue was "whether the possible harmful consequences about which they testified are as a matter of substantive law entitled to consideration by the fact finder in the award of compensable damages." Id. at 660-61.
. In other
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