Jury Instructions

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WI Court of Appeals – District III

Case Name: Nevin L. Smith, et al. v. Dale Goshaw, et al.

Case No.: 2017AP2008

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Jury Instructions

Dale Goshaw and Auto-Owners Insurance Company appeal a money judgment entered in favor of Nevin Smith in this negligence action. Smith, a tenant at an apartment building owned by Goshaw, sustained injuries when the fire escape he was standing on outside the building collapsed. At trial, Smith requested a modification to the standard jury instruction regarding a landlord’s duty of ordinary care to a tenant, WIS JI—CIVIL 8020 (2013). The modification added: “Every building and all parts thereof shall be kept in good repair.” After being given this modified instruction over Goshaw’s objection, the jury found Goshaw negligent with respect to the inspection, maintenance and repair of the premises, and it awarded Smith damages.

We conclude the modification to the 8020 instruction was erroneous and had the likely effect of misleading the jury regarding the correct legal standard for negligence. We also conclude Goshaw was prejudiced by the erroneous instruction because the instruction invited the jury to apply an incorrect legal standard and because it was highlighted by Smith’s counsel during his closing argument. Accordingly, we reverse the judgment and remand for a new trial.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.