Torts — premises liability — absent witness instruction

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Wisconsin Supreme Court

Civil

Torts — premises liability — absent witness instruction

It was error to give the absent witness instruction where there was no reason to believe that the witnesses’ testimony would be more favorable to one party than the other.

“We affirm the decision of the court of appeals. The circuit court’s decision to give the absent witness instruction was an erroneous exercise of discretion because there was no evidence in the record that the absent witnesses, former Speedway employees who had been on duty at the time of the accident, were material and within Speedway’s control or that it was more natural for Speedway, rather than Kochanski, to call them. Furthermore, Speedway’s decision not to call the former employees did not reasonably lead to the conclusion that it was unwilling to allow the jury to have ‘the full truth.’ Ballard v. Lumbermens Mut. Cas. Co., 33 Wis. 2d 601, 616, 148 N.W.2d 65 (1967). And finally, the instruction was prejudicial because without drawing a negative inference about Speedway’s snow removal methods and processes from Speedway’s decision not to call the former employees, the jury would not have found that Kochanski satisfied the notice element of his safe-place claim that was necessary to liability. Accordingly, we affirm the court of appeals’ decision and remand for a new trial.”

Affirmed.

2011AP1956 Kochanski v. Speedway SuperAmerica, LLC

Roggensack, J.

Attorneys: For Appellant: Piper, Donald H., Milwaukee; O’Neil, Patrick A., Milwaukee; For Respondent: Anderson, Ross A., Milwaukee; Starrett, Jay R., Indianapolis, Ind.; Keesecker, Erin Marie, Milwaukee