June 28, 2024 – A special verdict did not err by precluding a jury from considering a plaintiff’s post-accident conduct when apportioning liability, the Wisconsin Court of Appeals (District III) has held in Bakke v. Mt. Morris Mutual Insurance Company, 2023AP340 (June 11, 2024), an unpublished opinion.

On Friday, May 6, 2016, after dinner and drinks at a local tavern, Lisa Bakke and Stephen Tanski went back to Tanski’s lakefront cabin in Webster.

Bakke stepped out of Tanski’s truck and walked up the stairs to the back door of the cabin. Northland Builders, Inc. (Northland) had replaced the railing on the stairs in 2010, after the previous railing had fallen apart from rot.

As Tanksi walked around his truck, he saw Bakke on the third step, leaning against one of the posts that connected the railing to the stairs.

Suddenly, the post gave way and Bakke tumbled to the ground. She hit her head and was rendered unconscious.

Refuses to See Doctor

Tanski dragged Bakke into the cabin. He wrapped a towel around her bleeding head.

Tanski urged Bakke to see a doctor and offered to call an ambulance. But Bakke didn’t like doctors and turned Tanski down.

Bakke refused to go to the doctor the next day. Three days after Bakke fell, her sister convinced her to go to the doctor.

The doctor determined that Bakke had a broken collarbone, several cracked ribs, several spinal fractures, and a brain injury. The doctor recommended that Bakke undergo occupational therapy for cognitive re-training, but she refused.

Lawsuit Follows

In April 2019, Bakke sued Tanski, Northland, and their insurers in Burnett County Circuit Court.

The parties stipulated that Bakke’s past medical and out-of-pocket expenses were $90,768, which left only: 1) liability; and 2) pain and suffering damages for the jury to consider.

Northland’s expert witness, Geoff Jillson, testified that the railing fell off because the stairway was weakened by rot. Northland admitted into evidence 25 photos that Jillson took of the railing and the stairway, but the jury never saw the photos.

Bakke’s expert witness, Richard Abbott, testified that the railing’s design was the culprit behind Bakke’s fall. Both Jillson and Abbot testified that the railing’s lateral load capacity was far less than what the building code required.

The jury asked to see Jillson’s photos when it began deliberations, but the circuit court denied the request.

The jury unanimously apportioned 15% of the fault for Bakke’s injuries to Tanski and 85% to Northland, with no fault to Bakke. The jury awarded Bakke $80,000 for pain and suffering and disability.

Post-verdict Motion

Northland moved for a judgment notwithstanding the verdict. Northland challenged the special verdict, which asked the jury to decide only whether each party was negligent “at or prior to the accident.”

Northland argued that the jury should have been able to apportion fault to Bakke for her post-accident refusal to: 1) seek immediate medical attention; and 2) undergo occupational therapy.

Northland also argued that the circuit court erred by denying the jury’s request to see Jillson’s photos.

The circuit court denied Northland’s motion and entered judgment for Bakke. Northland appealed.

Only to Liability

The Court of Appeals began its per curiam opinion by concluding that while Northland’s special verdict argument was creative, it proceeded upon a fundamental misunderstanding of tort liability.

The Court of Appeals explained that, under Wisconsin Supreme Court caselaw, a plaintiff’s post-accident conduct goes only to damages and not causation.

The Court of Appeals pointed out that Northland agreed that the jury had been properly instructed regarding Bakke’s duty to mitigate her damages.

Bakke argued that to accept Northland’s argument would be to allow juries in negligence actions to assess a plaintiff’s failure to mitigate damages in both the liability and damages stages.

“Northland’s argument for double counting Bakke’s post-accident conduct has no support in Wisconsin tort law,” the Court of Appeals wrote.

The Court of Appeals pointed out that the special verdict form instructed the jury to exclude any damages caused by Bakke’s failure to mitigate.

“In this way, the jury was clearly tasked with determining how Bakke’s failure to promptly seek and participate in recommended treatment for her injuries affected the damage award, if at all,” the Court of Appeals wrote.

No Error in Keeping Photos From Jury

Regarding Jillson’s photos, the Court of Appeals explained that a circuit court has discretion to decide what exhibits a jury may see.

The Court of Appeals noted that the circuit court decided that the board depicted in the photos was itself the best illustrative evidence, given the following:

• the photos were “voluminous” images of the actual board that Northland had repeatedly shown the jury at trial;

• the photos weren’t numbered; and

• many of the photos had been magnified to an unknown degree.

Northland argued that the photos were critical to its defense because they showed how much rot had infected the stairs. But the Court of Appeals pointed out that Northland hadn’t identified which of the photos showed the rot.

Additionally, wrote the Court of Appeals, Northland’s argument was undercut by its failure to publish any of the photos to the jury during trial.

Because of that failure, the Court of Appeals noted, the jury would have seen Jillson’s photos for the first time in the jury room.

“Thus, not only were Jillson’s photographs cumulative to the physical evidence that was presented at trial, but they would likely have been confusing to the jury and would have distracted it from the evidence had relied upon during trial,” the Court of Appeals wrote.

The Court of Appeals affirmed the order and judgment of the circuit court.