Torts — absent witness instruction

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Wisconsin Court of Appeals

Civil

Torts — absent witness instruction

Speedway SuperAmerica appeals the order: (1) affirming the jury’s verdict finding Speedway negligent and consequently liable for injuries James E. Kochanski suffered when he tripped and fell outside one of Speedway’s convenience stores, and (2) denying Speedway’s subsequent motion for a new trial. Speedway argues, among other things, that the trial court erred in giving Wis JI—Civil 410, the absent witness instruction, to the jury, and that this error was prejudicial. Specifically, Speedway argues that the instruction was inappropriate in this case because: (1) the former employees it listed in its interrogatory answers as having been on duty when Kochanski tripped and fell on its premises were not material to the case or in Speedway’s control at the time of the lawsuit; (2) it was not more natural for Speedway to call its former employees as witnesses; and (3) there was no reasonable relationship between Speedway’s decision not to call the witnesses and the inference, allowed by Wis JI—Civil 410, that their testimony would have been unfavorable to Speedway. We agree with Speedway that the decision to give the absent witness instruction was erroneous and prejudicial, and therefore reverse the order and remand the matter for a new trial. Not recommended for publication in the official reports.

2011AP1956 Kochanski, et al. v. Speedway SuperAmerica LLC

Dist I, Milwaukee County, Siefert, J., Curley, P.J.

Attorneys: For Appellant: Piper, Donald H., Milwaukee; For Respondent: O’Neil, Patrick A., Milwaukee