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Condon v. Heritage Mutual Insurance Company11/5/2002
stopping distances for automobiles traveling at various speeds. He testified that a vehicle traveling between twenty and thirty miles per hour would have a stopping distance of forty-three to seventy-nine feet, but that a vehicle traveling between thirty and forty miles per hour would have a stopping distance of seventy-nine to one-hundred and twenty-six feet. He also testified that a vehicle traveling between thirty-one and thirty-seven miles per hour would have been between 65.8 and 78.6 feet away from the collision point at 1.4 seconds prior to impact, and that a vehicle traveling at the same speed would have been between 131.7 and 157.2 feet from the collision point at 2.9 seconds prior to impact. Finally, in his accident report, Officer Riederer concluded that Fueger's speed was a significant factor in causing the accident.
. The jury apportioned liability between Fueger and Ashley at 75% and 25%, respectively. The jury awarded Ashley's parents the statutory wrongful death limit of $350,000, which was reduced to $262,714.18 due to Ashley's contributory negligence. This award was further reduced to Heritage's policy limit of $250,000.
. In motions after the verdict, Heritage argued: (1) no credible evidence supported the jury's finding that Fueger's negligence was a substantial factor in Ashley's death; (2) expert testimony was necessary to establish that Fueger's negligence was a substantial factor in Ashley's death; (3) the trial court erroneously admitted testimony of Officer Riederer regarding the statistical relationship between impact speed and the severity of injury ; and (4) the trial court erroneously admitted the deposition testimony of Robert Krenz, a defense expert witness, after he had been excused from the stand. The trial court denied Heritage's post-verdict motions and entered judgment in favor of the Condons in the amount of $250,000.
II. Analysis.
A. Credible evidence supported the jury's finding that Fueger's negligence was a substantial factor in Ashley's death.
. Question two of the special verdict form submitted to the jury read: "Was the negligence of Kyle Fueger a cause of Ashley Condon's death." In response, the jury answered, "Yes." Heritage contends that the trial court should have changed the jury's answer because no credible evidence supported the jury's finding. We disagree and conclude that the Condons presented sufficient evidence such that a reasonable juror could have concluded that Fueger's negligence was a substantial factor in causing Ashley's death.
. We review a jury's finding under the "any credible evidence" standard. See Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 783, 541 N.W.2d 203 (Ct. App. 1995). Under this standard, we will uphold the jury's determination if there is any credible evidence to sustain the verdict. Id. at 782. This is a highly deferential standard of review:
In considering a motion to change the jury's answers to the questions on the verdict, a trial court must view the evidence in the light most favorable to the verdict and affirm the verdict if it is supported by any credible evidence. The trial court is not justified in changing the jury's answers if there is any credible evidence to support the jury's findings. In reviewing the evidence, the trial court is guided by the proposition that " he credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment, and where more than one inference can be drawn from the evidence," the trial court must accept the inference drawn by the jury. On appeal this court is guided by these same rules. Richards v. Mendivil, 200 Wis. 2d 665, 671, 548 N.W.2d 85 (Ct. App. 1996) (
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