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Condon v. Heritage Mutual Insurance Company11/5/2002
mless error analysis to determine whether the error "affected the substantial rights of the party." If the error did not affect the substantial rights of the party, the error is considered harmless.
Two statutes govern this situation, Wis. Stat. § 901.03 (Rulings on evidence) and Wis. Stat. § 805.18(2) (Mistakes and Omissions; Harmless Error). Section 901.03 provides that error may not be predicated on a ruling that admits or excludes evidence "unless a substantial right of the party is affected." This statute must be read together with § 805.18(2), which provides that a new trial shall not be granted for an error unless the error has affected the substantial rights of the party. This latter provision, which dates back to the early years of Wisconsin statehood, applies to both civil and criminal cases....
For an error "to affect the substantial rights" of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. A reasonable possibility of a different outcome is a possibility sufficient to "undermine confidence in the outcome." Id. at 30-32 (footnotes and citations omitted); see also State v. Dyess, 124 Wis. 2d 525, 543-47, 370 N.W.2d 222 (1985); Town of Geneva v. Tills, 129 Wis. 2d 167, 184-85, 384 N.W.2d 701 (1986) (holding that the harmless error analysis set forth in Dyess applies in both civil as well as criminal cases).
. In the instant case, Heritage has failed to establish a reasonable possibility that the error contributed to the outcome of the trial. Heritage contends that "the officer's statistical recitation was the only time plaintiffs came close to addressing the causation issue." We disagree. First, as illustrated above, a reasonable juror could have found Fueger causally negligent as to speed from the testimony of Officer Riederer concerning the vehicle's speed, the point of impact, the vehicle's braking distance, and the visibility time - testimony that Heritage concedes Officer Riederer was qualified to offer. Second, a reasonable juror also could have found Fueger causally negligent as to lookout based on Officer Riederer's and Fueger's testimony.
. Additionally, Officer Riederer's testimony about the relationship between impact speed and the severity of injury is nothing more than common sense - the faster a vehicle is going, the more likely it is that someone will be seriously hurt if he or she is struck by that vehicle. Thus, because this testimony was within the realm of common experience, and independent testimony was offered to establish causation, we conclude that any error was harmless.
D. The trial court did not err in admitting the deposition testimony of Krenz.
. Finally, Heritage contends that the trial court erred in allowing the Condons to read portions of the deposition of Robert Krenz, the defense's expert witness on accident reconstruction, into evidence after he had been excused from the stand. The Condons argue, pursuant to Wis. Stat. § 804.07(1)(a), that they merely read-in portions of Krenz's deposition testimony for the purpose of impeaching his testimony offered at trial. They claim that an adverse party's use of deposition testimony pursuant to Wis. Stat. § 804.07(1)(a) is not restricted solely to cross-examination of the witness while he is on the witness stand.
. Although the use of deposition testimony for purposes of impeachment is not limited exclusively to situations where the witness is on the stand, a party offering deposition testimony for impeachment purposes must also comply with Wis. Stat. § 906.13, which governs the use of prior inconsistent statements of witnesses at trial. Because the Condons s
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