May 18, 2017 – Lee Gaethke alleged that he slipped and fell on ice while walking on motel property in Kenosha. Recently, a state appeals court ruled that the jury had enough evidence to support a negligence finding under Wisconsin’s safe place statute.

Gaethke alleged that after he slipped and fell on an icy sidewalk at the Crossroads Motel, he crawled to his room in extreme pain and passed out after looking at his leg.

The injury required surgery and several days of recovery in the hospital. Gaethke’s brother, who responded to Gaethke’s phone call for help, confirmed that the hotel property was icy throughout. Gaethke’s girlfriend, who also responded to Gaethke’s call, said she slipped herself and that the parking lot contained a sheet of ice.

A meteorologist testified that a snowstorm hit the day before Gaethke’s fall, and temperatures remained below freezing, which could have explained the presence of ice. The superintendent of streets for Kenosha testified that the Crossroads Motel could have removed any snow and ice in a “timely, simple, and inexpensive fashion.”

The jury found that Gaethke was 35 percent negligent, and the Pozders 65 percent. The jury also determined that Gaethke should be awarded about $67,300 for medical bills. The circuit court denied the Pozders’ post-verdict motion to change the verdict.

In Gaethke v. Pozder, 2016AP541 (May 17, 2017), a three-judge panel for the District II Appeals Court affirmed, concluding there was sufficient evidence for the negligence finding and the court did not err in admitting the medical bills that Gaethke presented.

The panel also rejected the Pozders' request for a new trial despite the argument that Gaethke’s counsel engaged in “outrageous conduct” during the original trial.

Evidence Supported the Verdict

The jury concluded that the Pozders were negligent in failing to maintain the sidewalk at the motel. The circuit court upheld the jury’s verdict on motions after verdict.

The Pozders argued that a finding of negligence, under Wisconsin’s safe place statute, required that they have notice of the unsafe condition. They argued that they did not have notice. As to common law negligence, they argued that they met their duty of care.

The panel noted that the safe place statute requires “actual or constructive” notice of an unsafe condition before a property owner can be liable, and the Pozders had constructive notice because they had enough time to discover the ice.

Owners are deemed to have constructive notice of a defect or unsafe condition, the panel explained, “when that defect or condition has existed a long enough time for a reasonably vigilant owner to discover and repair it.”

In this case, the panel concluded, “the jury heard evidence from which it could reasonably infer the icy conditions had existed for a sufficient amount of time prior to Gaethke’s fall. …” The panel highlighted the meteorologist’s testimony, noting that ice could have started forming the day before, 18 hours before Gaethke slipped.

The panel noted that the safe place statute imposes a higher standard of care than common law negligence and thus did not address the Pozders' appeal with respect to the jury verdict on common law negligence, concluding the evidence supported the verdict.

Medical Bills Properly Admitted

The Pozders argued that the medical bills admitted into evidence were improperly admitted because they were not properly authenticated and were inadmissible hearsay.

But the panel concluded that the bills were properly authenticated and properly admitted under Wis. Stat. section 908.03(24), the residual hearsay exception, which allows statements not covered by other exceptions but that have guarantees of trustworthiness.

The Pozders argued that the medical bills that Gaethke offered into evidence were not “certified,” as required for “patient health care records,” under section 908.03(6m)(b), if the record custodian or a “qualified witness” does not authenticate the records.

A medical doctor had testified concerning the records but said he was not qualified to give an opinion as to the amounts typically charged for the services Gaethke received.

The panel noted that authentication, under section 909.01, is satisfied “by evidence sufficient to support a finding that the matter in question is what its proponents claim.”

Gaethke testified that the bills reflected charges for medical treatment he received. The panel concluded that Gaethke’s testimony and other witness testimony was enough.

“The bills itemize medical services and products provided by various medical entities or personnel over a two-year period … and identify those services or products that were provided to Gaethke in relation to his lower leg,” wrote Judge Mark Gundrum.

“Furthermore, testimony of various witnesses which correspond to and corroborate dates or specific items on the bills further confirm their authenticity,” Gundrum wrote.

The panel also rejected the Pozders' assertion that the medical bills were inadmissible hearsay and the residual hearsay exception does not apply to patient health care records that must meet specific tests before they can be admitted into evidence.

No New Trial

The Pozders argued for a new trial on the grounds that Gaethke’s counsel engaged in outrageous conduct during closing arguments.

The Pozders testified by videotape and did not attend the trial. They were in Australia for three months visiting family. The Pozders’ counsel objected during closing arguments when Gaethke’s counsel stated the Pozders “couldn’t wait a month to come here to court to tell you how this accident happened,” suggesting they didn’t care enough.

In addition, the paralegal and wife of Gaethke’s counsel interrupted when a brief discussion ensued between the attorneys for both parties, and the Pozders argued that Gaethke’s lawyer raised prejudicial comments when referencing his witness’s race and the way she was cross-examined by opposing counsel.

The panel noted that the Pozders did not include a transcript of the hearing at which the circuit court judge had indicated his reasons for denying the Pozders' objections.

“Simply put, the Pozders are unable to demonstrate the circuit court erroneously exercised its discretion where the court’s reasons for exercising its discretion as it did are not in the record,” Judge Gundrum wrote.

The panel also concluded that the Pozders forfeited an opportunity to seek a new trial because they did not ask for a mistrial before the jury’s verdict:

“[W]hen a party timely objects and moves for a mistrial, the court has the opportunity to consider the nature of the alleged error and arguments related to it and take appropriate corrective action, if any is needed, before the jury reaches a verdict. By failing to move for a mistrial, the Pozders did not afford the circuit court this opportunity.”

Finally, the panel rejected the Pozders' claims on the merits, concluding the Pozders presented nothing to convince the panel that any comments were prejudicial.

“Were we to order a new trial, it would be based completely on speculation as to what effect the comments may have had on the jury, and speculation alone will not support an order for a new trial,” Judge Gundrum wrote.