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Stussy v. North Crawford School District6/15/2000
APPEAL from a judgment of the circuit court for Crawford County: GEORGE S. CURRY, Judge. Affirmed.
Irene Stussy appeals from a judgment dismissing her personal injury complaint against the Town of Utica. The issues are whether the trial court erred in the jury instructions and in denying a motion to change a verdict answer on negligence. We disagree with Stussy's arguments and affirm.
. Stussy alleged that she was injured when the school bus in which she was riding drove off a rural gravel road after encountering a muddy stretch. The following factual background appears to be undisputed, at least for the purpose of this appeal. For several days, the Town of Utica was working on the stretch of road where the accident occurred. The work included the use of a road grader to push soil from the right-of-way on one side of the road to the other side. The crew was instructed to grade stray soil off the gravel road at the end of the workday. The school bus accident occurred in the early morning hours, before the crew began work. The night before, a heavy rain fell in the area. The bus driver testified that he came around a curve and hit the muddy area, which caused the bus to slide out of control. At trial, Stussy attempted to make a factual case that the Town crew failed to clear stray soil from the road properly on the day before the accident, and that the heavy overnight rain then turned that soil to mud.
. On appeal, Stussy argues that the trial court erred by not giving her jury instruction to clarify the standard instruction, Wis JI-Civil 8035. The standard instruction states that before the jury could find the Town liable for a defective highway, it must find that the Town had actual or constructive notice of the defect. Stussy's proposed instruction stated that there is no requirement of notice if the Town itself created the defect, and she cited a case for that proposition, Kosnar v. J.C. Penney Co., 6 Wis. 2d 238, 242, 94 N.W.2d 642 (1959). The trial court declined to give the instruction.
. The trial court has wide discretion in issuing jury instructions based on the facts and circumstances of each case, and if the instruction given adequately covers the law, we will not find error in the refusal to give another instruction, even if that one is also a correct statement of law. See State v. Kemp, 106 Wis. 2d 697, 705-06, 318 N.W.2d 13 (1982).
. Stussy argues that the trial court was wrong because, by first instructing the jury that notice was required, but then not instructing it that no notice is necessary if the defendant created the defect, the instruction misled the jury with a "one-sided, unbalanced" statement of law that did not take into account the facts and circumstances of the present case.
. In the Kosnar case, the court quoted with approval from a source which stated that there are "obvious reasons" why notice is not required when the defendant is alleged to have created the hazard, because a person who is actively negligent necessarily has that knowledge. Kosnar, 6 Wis. 2d at 242. For this same reason, we conclude that the instruction in this case was not sufficiently misleading to be reversible error. The jury was told that it would have to find that the Town had actual or constructive notice of the defect. However, even without Stussy's proposed clarification, if the jury had concluded that the Town's road work created the defect, we believe it would be sufficiently clear to the jury, for the reason described above as "obvious," that the Town necessarily had notice of any defect which it actively created with its own road work.
. Stussy also argues that the court erred by not giving a second instructi
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