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  • WisBar News
    July 23, 2014

    Absent Witness Jury Instruction was Improper, Supreme Court Says

    July 23, 2014 – The circuit court committed error when it allowed the jury in a slip-and-fall case to hear an “absent witness jury instruction,” which allows the jury to infer that the absent witness would have given testimony unfavorable to the opposing party.

    That’s what the Wisconsin Supreme Court ruled in Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72 (July 17, 2014), a case involving a man who slipped at a gas station. At trial, the defense did not call the on-duty manager as a witness.

    On a snowy February afternoon in 2007, James Kochanski approached the entrance of Speedway convenience store to pay for his gas. There had been between one half to two inches of snowfall that morning, and as Kochanski approached the front door, he noticed a yellow curb on either side of the door and a patch of snow in the middle.

    Kochanski assumed the covered area was a ramp for wheelchair access, but it was not. He slipped or tripped on that curb, breaking his arm and injuring his wrist.

    Deborah SpanicDeborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.

    At trial, Kochanski provided as evidence the video footage from the store’s surveillance camera that captured the fall, his own testimony, and Speedway’s interrogatory responses that identified five former employees who were on duty at the time of the accident. Speedway chose to rely on the video footage alone to defend against the imposition of liability, and explained that it had been unsuccessful in its attempt to locate the manager on duty at the time of the accident.

    Based on Speedway’s decision not to call any former employees as witnesses, Kochanski requested, and the court gave, the absent witness instruction. The absent witness instruction provides that if a party fails to call a material witness within its control and fails to give a satisfactory explanation for not calling the witness, the jury may infer that the evidence the witness would give would be unfavorable to that party.

    The trial court said the jury had a right to know about Speedway’s snow removal methods and processes. Since Speedway did not call former or current employees who would have known about these methods or processes and the video did not show whether the premises were salted before the accident, the instruction was proper.

    The jury found that Speedway SuperAmerica was liable for Kochanski’s injuries, awarding $317,545 in damages, and the circuit court entered judgment.

    On appeal, Speedway argued that the trial court erroneously gave the absent witness instruction, stating the witnesses were not material. The court of appeals agreed with Speedway, reversed the circuit court and remanded for a new trial. Recently, the Wisconsin Supreme Court affirmed the court of appeals.


    Justice Patience Roggensack, writing for a 4-3 majority, stated that, “[f]acts of record must support the instruction and the instruction must correctly state the law.”

    She also noted that an erroneous jury instruction warrants reversal and a new trial only if the error was prejudicial. The instruction allows jurors to decide whether it is more natural for one party to call a material witness, and whether the witness’s absence was satisfactorily explained.

    A court may only give the instruction, the majority explained, if there are facts in the record that would allow a jury to reasonably draw a negative inference from the absence of a particular material witness, noting three requirements that apply.

    First, there must be evidence that a witness could supply material information. Second, it must be “more natural” for one of the parties to have called an absent witness since that one party has more control over the witness than another party. It is improper to give the absent witness instruction when the witness is equally available to both parties.

    Finally, the instruction is proper only when a party does not satisfactorily explain its failure to call a material witness. The requirements are important, the majority noted, because the instruction has significant “potential for inaccuracy and unfairness.”

    In this case, the court noted that the record lacked factual evidence necessary to uphold the circuit court’s decision to give the absent witness instruction.

    “We cannot presume that employees on duty at the time of Kochanski’s fall could testify about Speedway’s snow removal methods and processes,” the court concluded.

    On the second requirement, Kochanski did not establish that former employees were peculiarly under Speedway’s control or that it was more natural for Speedway, rather than Kochanski, to call them. Kochanski had their names and last-known addresses from Speedway’s interrogatory responses, the majority noted.

    On the third requirement, Speedway explained it did not call the manager on duty at the time of the accident because he could not be located at his last known address.

    In addition, the court noted, “Kochanski provided no factual foundation … from which it reasonably could be concluded that there existed a relationship between the former employees’ absences and the inference that their testimony would have been unfavorable to Speedway.”

    In affirming the court of appeals, the supreme court found that 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.” It also noted that the instruction was prejudicial because without drawing a negative inference about Speedway’s decision not to call former employees as witnesses, the jury would not have reasonably found that Kochanski satisfied the notice element of his safe-place claim. The court of appeals was affirmed and the case was remanded for a new trial.

    Justice Ann Walsh Bradley dissented, joined by Chief Justice Shirley Abrahamson. Justice David Prosser also filed a dissent based on issues of appellate review.  

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