James E. Kochanski v. Speedway Superamerica, LLC

2014 WI 72

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1956
COMPLETE TITLE: James E. Kochanski and Cynthia Kochanski,
Plaintiffs-Respondents-Petitioners,
Blue Cross Blue Shield of Wisconsin and Kathleen
Sebelius,
Secretary of the United States Department of
Health and
Human Services,
Involuntary-Plaintiffs,
v.
Speedway SuperAmerica, LLC,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 344 Wis. 2d 519, 822 N.W.2d 736
(Ct. App. 2012 – Unpublished)

OPINION FILED: July 17, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 4, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: John Siefert

JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
PROSSER, J., dissents. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-respondents-petitioners, there were
briefs by Jay R. Starrett, Lisa M. Lawless, Thomas Gonzalez,
Erin M. Keesecker, and Whyte Hirschboeck Dudek S.C., Milwaukee,
and oral argument by Ross Anderson.
 For the defendant-appellant, there was a brief by Donald H.
Piper, Patrick A. O’Neil, and Piper & Schmidt, Milwaukee, and
oral argument by Patrick A. O’Neil.

2
 2014 WI 72
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1956
(L.C. No. 2009CV12191)

STATE OF WISCONSIN : IN SUPREME COURT

James E. Kochanski and Cynthia Kochanski,

Plaintiffs-Respondents-Petitioners,

Blue Cross Blue Shield of Wisconsin and
Kathleen Sebelius, Secretary of the United FILED
States Department of Health and Human Services,
JUL 17, 2014
Involuntary-Plaintiffs,
Diane M. Fremgen
v. Clerk of Supreme Court

Speedway SuperAmerica, LLC,

Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision

of the court of appeals1 reversing the circuit court's order2

affirming the jury's verdict, which found Speedway SuperAmerica,

LLC (Speedway) liable for injuries James Kochanski sustained

1
Kochanski v. Speedway SuperAmerica, LLC, No. 2011AP1956,
unpublished slip op. (Wis. Ct. App. Sept. 18, 2012).
2
The Honorable Judge John Siefert of Milwaukee County
presided.
 No. 2011AP1956

when he fell outside one of Speedway's stores. Speedway

appealed, arguing that the circuit court erroneously gave the

absent witness instruction, that the verdict should be reversed

because it is contrary to the greater weight of the credible

evidence, and that a new trial should be granted in the interest

of justice. The court of appeals reversed on the jury

instruction issue and remanded for a new trial. It did not

reach Speedway's other two arguments.

¶2 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.

2
 No. 2011AP1956

I. BACKGROUND

¶3 On February 6, 2007, Kochanski filled his car with gas

at a Speedway convenience store in Milwaukee, Wisconsin.

Between one half and two inches of snow had fallen that morning.

When the machine at the pump would not process his credit card,

Kochanski decided to pay for his purchase inside. As he

approached the front door of the store, he noticed a yellow curb

on either side of the door and a patch of snow in the middle,

which he assumed was a curb ramp to provide wheelchair access.

The curb ramp was actually located four or five feet to his

left. Having misjudged the ramp location, Kochanski either

slipped or tripped on the curb, breaking his arm and injuring

his wrist. He brought this suit in which he alleges that

Speedway violated both its common law duty of care and the safe-

place statute, Wis. Stat. § 101.11 (2009-10).3

¶4 At a May 2011 jury trial, Kochanski proffered the

following evidence in support of his claims: (1) his own

testimony regarding the circumstances of the fall; (2) video
footage from the store's surveillance camera that captured the

fall; (3) deposition testimony of his treating physician

regarding his injuries; (4) testimony of his wife regarding the

impact the accident had on her and her husband's lives; and (5)

Speedway's interrogatory responses that identified five former

3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

3
 No. 2011AP1956

employees who were on duty at the time of the accident and

provided their last known addresses.

¶5 In defending against the imposition of liability,

Speedway relied on the video that captured the fall. Speedway

explained to the jury that it had been unsuccessful in its

attempt to locate the manager on duty at the time of the

accident, but no testimony was necessary because the video was

sufficient to prove that it was not liable.

¶6 Based on Speedway's decision not to call any former

employees as witnesses, Kochanski requested, and the court gave,

the absent witness instruction, which provides:

If a party fails to call a material witness
within [its] control, or whom it would be more natural
for that party to call than the opposing party, and
the party fails to give a satisfactory explanation for
not calling the witness, [the jury] may infer that the
evidence which the witness would give would be
unfavorable to the party who failed to call the
witness.
Wis JI——Civil 410. The court reasoned that the jury had a right

to know about Speedway's snow removal methods and processes. It

explained that since Speedway did not call former or current

employees who would have known about those methods and processes

and the video did not show whether the premises was salted

before the accident, the instruction was proper.

¶7 During closing arguments, Kochanski's attorney

capitalized on the instruction, arguing as follows:

The law says——and you've taken an oath to follow
the law——that if there is a witness that would have
been natural for SuperAmerica to call to explain to
you what was done on this day, you can infer that had

4
 No. 2011AP1956

they called that witness, they would have gotten some
unfavorable testimony.

Why didn't [Speedway] call anybody? What would
that unfavorable testimony have been? Other evidence
that's missing in this case. . . .

Not a single document, and not [a] single
witness. It makes you wonder what's going on[.] What
is it that's being decided at the highest levels of
SuperAmerica? How will they defend these cases? Why
don't you get to hear the whole story?
¶8 The jury returned a verdict in favor of Kochanski and

awarded the plaintiffs $317,545.58 in damages, which represented

Kochanski's medical expenses and pain and suffering, as well as

Cynthia Kochanski's loss of society and companionship. The

circuit court affirmed the verdict and denied Speedway's request

for a new trial.

¶9 On appeal, Speedway argued that the circuit court

erroneously gave the absent witness instruction. Specifically,

it said that the missing witnesses were not material because

their testimony would have been cumulative of the video and that

it is not necessarily more natural for defendant-employer to

call former employees. The court of appeals agreed4 with

Speedway that the record lacked the facts necessary to give the

absent witness instruction. We granted review and now affirm

the court of appeals.

4
Judge Fine filed a dissenting opinion in which he
concluded that the instruction was appropriate because Speedway
did not prove "via evidence" that the former employees were not
within its control or that it had a satisfactory reason for not
calling them.

5
 No. 2011AP1956

II. DISCUSSION

A. Standard of Review

¶10 A circuit court has broad discretion to instruct a

jury. Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112, ¶50, 246

Wis. 2d 132, 629 N.W.2d 301. This does not mean, however, that

a jury instruction is insulated from review. Facts of record

must support the instruction and the instruction must correctly

state the law. Id. We independently review whether these two

criteria are met. State v. Fonte, 2005 WI 77, ¶9, 281 Wis. 2d

654, 698 N.W.2d 594.

¶11 The correctness of the jury instruction affects the

validity of a jury's verdict. State v. Dodson, 219 Wis. 2d 65,

87, 580 N.W.2d 181 (1998). However, an "erroneous jury

instruction warrants reversal and a new trial only if the error

was prejudicial." Fischer v. Ganju, 168 Wis. 2d 834, 849, 485

N.W.2d 10 (1992). An error is prejudicial when it probably

misled the jury. Id. at 850. Put another way, "an error

relating to the giving or refusing to give an instruction is not
prejudicial if it appears that the result would not be different

had the error not occurred." Lutz v. Shelby Mut. Ins. Co., 70

Wis. 2d 743, 751, 235 N.W.2d 426 (1975).

B. Absent Witness Instruction

¶12 Over a century ago, the United States Supreme Court

issued a definitive statement of the absent witness rule: "[I]f

a party has it peculiarly within his power to produce witnesses

whose testimony would elucidate the transaction, the fact that
he does not do it creates the presumption that the testimony, if
6
 No. 2011AP1956

produced, would be unfavorable." Graves v. United States, 150

U.S. 118, 121 (1893); Herbert v. Wal-Mart Stores, Inc., 911 F.2d

1044, 1046 (5th Cir. 1990). As with the best evidence rule5 and

the spoliation doctrine,6 the absent witness rule is based on the

notion that:

[t]he failure to bring before the tribunal some
circumstance, document, or witness, when either the
party himself or his opponent claims that the facts
would thereby be elucidated, serves to indicate, as
the most natural inference, that the party fears to do
so; and this fear is some evidence that the
circumstance or document or witness, if brought, would
have exposed facts unfavorable to the party.
2 John Henry Wigmore, Evidence in Trials at Common Law § 285, at

192 (James H. Chadbourn rev. 1979); Robert H. Stier, Jr.,

Revisiting the Missing Witness Inference——Quieting the Loud

Voice from the Empty Chair, 44 Md. L. Rev. 137, 139-43 (1985).

¶13 However, contrary to the language of Graves, the

instruction does not create a presumption; it describes a

permissible inference. Booth v. Frankenstein, 209 Wis. 362,

370, 245 N.W. 191 (1932); 2 McCormick on Evidence § 264, at 322

(Kenneth S. Broun ed., 7th ed. 2013). The instruction allows

jurors to decide whether it was more natural for one party to

5
The best evidence rule provides that "[t]o prove the
content of a writing, recording or photograph, the original
writing, recording or photograph is required, except as
otherwise provided . . . by . . . statute." Wis. Stat.
§ 910.02.
6
The spoliation doctrine allows a fact-finder to draw a
negative inference against a party who destroys relevant
documents. Jamie S. Gorelick et al., Destruction of Evidence
§ 2.1, at 32 (1989).

7
 No. 2011AP1956

call a material witness who was within that party's control than

for the other party to call the witness and whether the witness'

absence was satisfactorily explained.7 Furthermore, a court may

give the instruction only if there are facts in the record that

would allow the jury to reasonably draw a negative inference

from the absence of a particular material witness.8 Thoreson v.

Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 231, 237, 201

N.W.2d 745 (1972); see also State v. Glenn, 199 Wis. 2d 575,

585, 545 N.W.2d 230 (1996) (instruction on lesser-included

offense proper only when there is evidence to support it). In

other words, materiality, control, and reasonableness of the

inference are threshold requirements. We now examine these

requirements individually.

1. Materiality

¶14 A material witness is one "capable of supplying

information of strong probative value for the party's case."

Thoreson, 56 Wis. 2d at 237 (quoting Dodge v. Dobson, 21 Wis. 2d

200, 205, 124 N.W.2d 97 (1963) (internal quotation marks
omitted)). One cannot assume that a witness has such

information. Id. (citing Ballard, 33 Wis. 2d 601). Rather, the

7
Whether a witness is material is a question of law.
Jessica J.L. v. State, 223 Wis. 2d 622, 629, 589 N.W.2d 660 (Ct.
App. 1998).
8
We say "particular" witness because a court cannot
determine if the witness is material, if it is more natural for
one party to call the witness, or if a failure to call the
witness supports a negative inference without first identifying
that witness. In other words, these evaluations cannot be made
in the abstract.

8
 No. 2011AP1956

record must show that the witness' relationship to the issues in

the case is such that the witness is capable of producing

material testimony. For instance, when a witness' own conduct

is at issue in a civil trial, the witness is usually material.

E.g., Coney v. Milwaukee & Suburban Transp. Corp., 8 Wis. 2d

520, 527-28, 99 N.W.2d 713 (1959) (instruction was proper when

the defendant transportation company failed to call the driver

of its trolley bus, and the driver's negligence was at issue).

The same holds true when the witness' job required him or her to

make an assessment relevant to the claim. E.g., Schemenauer v.

Travelers Indem. Co., 34 Wis. 2d 299, 308-09, 149 N.W.2d 644

(1967) (instruction was proper when the defendant claimed

amnesia, which was relevant to his credibility but not necessary

to his claim, and failed to call his treating physician); Dodge,

21 Wis. 2d at 205 (instruction was proper when the extent of the

plaintiff's injuries was at issue and she did not call her

treating physician); DeChant v. Monarch Life Ins. Co., 204

Wis. 2d 137, 149-50, 554 N.W.2d 225 (Ct. App. 1996) (instruction
was proper in a bad-faith insurance action when the defendant

failed to call its field agent who assessed the plaintiff's

claim).

¶15 A party also may show that the absent witness has

material information through other foundational evidence. For

example, in Carr v. Amusement, Inc., 47 Wis. 2d 368, 177 N.W.2d

388 (1970), the intoxication of a slip and fall plaintiff was at

issue. When the plaintiff did not call his wife, with whom he

9
 No. 2011AP1956

had been sitting at the same end of the bar,9 the court properly

gave the instruction because "the wife could have produced

testimony relevant to the events that occurred while she was

with her husband at the bar, specifically including how much

alcohol he had consumed." Id. at 376.

¶16 When there is no evidence that a witness could supply

material information, the instruction is improper. Thoreson

provides a good example. In that case, a transportation company

failed to call a passenger who was riding on a bus that struck a

child who ran into its path. The court explained that the

instruction was improper because "[w]e cannot assume the bus

passenger was a material witness; he may or may not have seen

the accident." Thoreson, 56 Wis. 2d at 237. Similarly, in

Ballard, we affirmed a refusal to give the instruction when an

injured plaintiff did not call her chiropractor because it was

not "clear from the record" that she saw the chiropractor for

injuries she sustained in the accident. Ballard, 33 Wis. 2d at

614-15. We also held that a party's mere assertion that a
witness has material information is insufficient to support

giving the instruction. Id. at 615.

¶17 Additionally, even a witness capable of supplying

relevant information will not support giving the missing witness

instruction if that information would be merely cumulative.

Featherly v. Cont'l Ins. Co., 73 Wis. 2d 273, 282-83, 243 N.W.2d

9
Appendix to Brief of Plaintiff-Appellant at 153, Carr v.
Amusement, Inc., 47 Wis. 2d 368, 177 N.W.2d 388 (1970) (citing
Transcript of Record at ¶297).

10
 No. 2011AP1956

806 (1976) (testimony of the plaintiff's reconstruction expert

would have been "superfluous in light of other evidence"); Karl

v. Emp'rs Ins. of Wausau, 78 Wis. 2d 284, 300, 254 N.W.2d 255

(1977) (testimony of the plaintiff's family physician would have

been cumulative in light of a psychiatrist's testimony).

2. More natural for one party to call a witness

¶18 As to the second requirement, that a witness be

peculiarly within one party's control or that it be more natural

for one party to call a witness than the other party, courts

"cannot assume the witness was more available to" one party than

another.10 Thoreson, 56 Wis. 2d at 238. That it was "more

natural" for one of the parties to have called an absent witness

is grounded in the concept that one party had more control over

the witness than the other party. McGowan v. Story, 70 Wis. 2d

189, 200, 234 N.W.2d 325 (1975). We have held that it is

improper to give the absent witness instruction when the witness

is equally available to both parties. Capello v. Janeczko, 47

Wis. 2d 76, 84-85, 176 N.W.2d 395 (1970).
3. Absence/Inference relationship

¶19 Finally, the instruction is proper only when the

failure to call a witness reasonably leads to the conclusion

that "the party is unwilling to allow the jury to have the full

truth." Ballard, 33 Wis. 2d at 615-16. This requirement is

satisfied when a party does not satisfactorily explain its

10
Because Kochanski does not argue that the absent
witnesses were within Speedway's control, we focus on the "more
natural" prong of this requirement.

11
 No. 2011AP1956

failure to call a material witness that is peculiarly within its

control. We require that factual foundation to prevent a party

from "hav[ing] the burden, at his peril, of calling every

possible witness to a fact, lest his failure to do so will

result in an inference against him." Id. at 615.

¶20 Satisfaction of all three requirements is important

because the instruction has significant "potential [for]

inaccuracy and unfairness." Stier, supra, at 151, 153

("qualifications on the use of the rule are intended to limit

its application to those situations in which the inference has a

basis in fact"). Assumptions upon which the instruction is

based are not always true. For example, the inference assumes

that a party intentionally fails to produce evidence, yet "such

an intention is not clear from the mere absence of evidence in

court." Id. at 145. Even if a party intentionally fails to

call a witness, its decision is not necessarily the product of

"fear that weaknesses in the case will be exposed" or a

nefarious desire to hide evidence. Id.
¶21 Moreover, modern rules of procedure and evidence11

create mechanisms by which to accomplish the rule's objectives

without the risk of "add[ing] a fictitious weight to one side or

another of the case." Burgess v. United States, 440 F.2d 226,

234 (D.C. Cir. 1970); Herbert, 911 F.2d at 1048 (Federal Rules

11
"If discovery is available but not employed, the party
ought not to be allowed to resort to the somewhat speculative
inference when discovery would substitute certainty."
McCormick, supra, at 320 n.19 (citing Jenkins v. Bierschenk, 333
F.2d 421, 425 (8th Cir. 1964)).

12
 No. 2011AP1956

of Evidence and Federal Rules of Civil Procedure "render[] the

uncalled-witness rule an anachronism.").

¶22 These concerns have led courts and lawmakers to

increasingly limit, and in some instances eliminate, the

instruction. Stier, supra, at 151; see also Conn. Gen. Stat.

§ 52-216c (eliminating the instruction in civil cases); Herbert,

911 F.2d at 1047 ("the uncalled-witness rule has no place in

federal trials"). Accordingly, we reiterate that facts in the

record, not assumptions or speculation, must establish

materiality, control, and the reasonableness of a negative

inference before the instruction may be given.

C. Application

¶23 As the court of appeals correctly concluded, the

record in the present case lacks factual evidence necessary to

uphold the circuit court's decision to give the absent witness

instruction. Starting with materiality, Kochanski presented no

evidence that the former Speedway employees on duty at the time

of Kochanski's fall had information of strong probative value.
Just as the court could not presume a bus passenger saw the

accident in Thoreson, we cannot presume that employees on duty

at the time of Kochanski's fall could testify about Speedway's

snow removal methods and processes or what was done that day.

See Thoreson, 56 Wis. 2d at 237. Speedway's witness list

indicates that it hired a contractor to provide snow removal

services.

¶24 As to the circuit court's assertion that current
employees could testify about Speedway's snow removal methods
13
 No. 2011AP1956

and processes, the record does not contain facts that show that

a particular current employee could provide information "of

strong probative value" on that point. Dodge, 21 Wis. 2d at

205. Additionally, Kochanski did not argue to the circuit court

that the instruction was proper based on Speedway's failure to

call current employees. The circuit court appears to have

constructed that theory, prior to the close of trial, based on

pure speculation. This had the effect of improperly placing a

burden on Speedway to call "possible witness[es] to a fact, lest

[its] failure to do so will result in an inference against

[it]." Ballard, 33 Wis. 2d at 615.

¶25 Next, Kochanski did not establish that the former

employees were peculiarly under Speedway's control or that it

was more natural for Speedway to call former employees than for

Kochanski to call them. The circuit court reasoned that it was

more natural for Speedway to call its former employees because

Speedway did not effectively prove that the absent witnesses

were ex-employees and that "[f]or all [the court] know[s],
they're currently employed in a different SuperAmerica." It

also found that even if the witnesses were ex-employees, they

still had a special relationship with Speedway because "[e]x-

employees . . . have to obtain letters of recommendation for

future employers from their former employer" and there is a

possibility that "the manager may be on a pension or a deferred

pension." These findings are clearly erroneous. State v.

Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. The
record lacks any evidence that the uncalled witnesses were
14
 No. 2011AP1956

working at a different Speedway, that they had contacted

Speedway for letters of recommendation, or that the manager was

drawing a pension from Speedway.

¶26 Additionally, Kochanski read the names and addresses

of the former employees into the record, so their whereabouts

were known to him. Kochanski had obtained these names and

addresses through Speedway's answers to his interrogatories, yet

he made no showing that he could not compel their appearance at

trial by subpoena. The safe-place claim was Kochanski's to

prove; it was not Speedway's obligation to disprove it.

¶27 The absent witness instruction allows for a negative

inference in order to encourage parties to present, not conceal,

relevant evidence. Herbert, 911 F.2d at 1046. However, "the

substance of a witness' testimony is uncertain." Stier, supra,

at 145. This uncertainty is too great to allow for a negative

inference when an absent witness' relationship to a party is not

predictive of the witness' testimony. Without evidence that

former employees were in the control of or indebted to Speedway,
there is no reason to conclude that their testimony would

naturally favor one party or the other.

¶28 Speedway chose to defend its liability with

surveillance footage of the accident, which it believed was

sufficient to prove that it was not liable for Kochanski's

injuries. It explained that 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, which was that of his parents who had
not heard from him in some time. Kochanski provided no evidence
15
 No. 2011AP1956

that called the truthfulness of Speedway's explanation into

question. Kochanski provided no factual foundation in the

record 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.

¶29 Having concluded that the circuit court's decision to

give the instruction was erroneous; we must next decide if it

was prejudicial. This requires an understanding of the

substantive law that underlies Kochanski's claims.

D. Kochanski's Substantive Claims

¶30 Kochanski's complaint alleges both common law

negligence and safe-place claims. The sole question regarding

liability reads as follows: "Was Speedway SuperAmerica LLC,

through the acts of its employees, negligent in failing to

maintain the Speedway SuperAmerica premises as safe as its

nature would reasonably permit on February 6, 2007?"12

¶31 The special verdict question on liability is
problematic because common law negligence and the safe-place

statute involve different standards of care and different

elements of proof.13 With a negligence claim, a defendant is

12
Special verdict question no. 1.
13
Compare Sturm v. Simpson's Garment Co., 271 Wis. 587, 74
N.W.2d 137 (1956). In that case, the plaintiff pleaded both
safe-place and ordinary negligence violations. The special
verdict questions on the safe-place claim and the negligence
claim were separated as follows:

16
 No. 2011AP1956

liable when he has a duty of ordinary care that he breaches and

the breach is a cause of damage to the plaintiff. Hoida, Inc.

v. M&I Midstate Bank, 2006 WI 69, ¶23, 291 Wis. 2d 283, 717

N.W.2d 17. However, with a safe-place claim, an employer or

owner of a public building has a duty to maintain the building

as safely as its nature will reasonably permit. Wis. Stat.

§ 101.11(1); Megal v. Green Bay Area Visitor & Convention

Bureau, Inc., 2004 WI 98, ¶22, 274 Wis. 2d 162, 682 N.W.2d 857.

¶32 In order to be subject to the higher standard of care

under the safe-place statute, a defendant must have actual or

constructive notice that an unsafe condition or defect exists.

Megal, 274 Wis. 2d 162, ¶11. Constructive notice is a fiction

that attributes knowledge of a fact to a person "as if he had

actual notice or knowledge although in fact he did not." Strack

v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54-55, 150 N.W.2d

361 (1967).

¶33 In Megal, we explained constructive notice further:

In the context of an alleged safe-place
violation, the general rule is that an employer or

Question 1: Did defendant Simpson's Garment
Company fail to have the platform here in question as
free from danger to frequenters as the nature of the
premises would reasonably permit? . . .

. . . .

Question 3: Was defendant Simpson's Garment
Company, at or about the time and place of the
accident, negligent in failing to furnish a mat to
cover the platform here in question?

Id. at 589.

17
 No. 2011AP1956

owner is deemed to have constructive notice of a
defect or unsafe condition when that defect or
condition has existed a long enough time for a
reasonably vigilant owner to discover and repair it.
Ordinarily, constructive notice requires evidence as
to the length of time that the condition existed.

The length of time required for the existence of
a defect or unsafe condition that is sufficient to
constitute constructive notice depends on the
surrounding facts and circumstances, including the
nature of the business and the nature of the defect.
We have carved out a limited exception to the general
rule that temporal evidence is required before
constructive notice can arise. . . .

[W]hen an unsafe condition, although temporary or
transitory, arises out of the course of conduct of the
owner or operator of a premises or may reasonably be
expected from his method of operation, a much shorter
period of time, and possibly no appreciable period of
time under some circumstances, need exist to
constitute constructive notice.
Megal, 274 Wis. 2d 162, ¶¶12-13 (internal citations and

quotations omitted).

¶34 As explained above, it is the "general rule . . . that

constructive notice is chargeable only where the hazard has

existed for a sufficient length of time to allow the vigilant

owner or employer the opportunity to discover and remedy the

situation." May v. Skelley Oil Co., 83 Wis. 2d 30, 36, 264

N.W.2d 574 (1978). In addition, "constructive notice [usually]

cannot be found when there is no evidence as to the length of

time the condition existed." Kaufman v. State St. Ltd. P'ship,

187 Wis. 2d 54, 59, 522 N.W.2d 249 (Ct. App. 1994). However,

when it is reasonably probable that an unsafe condition will

occur because of the nature of the business, or the manner in

18
 No. 2011AP1956

which the owner conducts the business, a much shorter period of

time may support constructive notice. Strack, 35 Wis. 2d at 55.

¶35 Accordingly, if a plaintiff who alleges a safe-place

violation cannot prove actual notice of an unsafe condition, or

the length of time the unsafe condition existed sufficient to

support constructive notice, he or she must prove constructive

notice by offering evidence of "the nature of the business, the

nature of the [unsafe condition], and the public policy

involved" so that the jury could find that the defendant's

methods and processes would reasonably be expected to give rise

to the unsafe condition. May, 83 Wis. 2d at 37.14

¶36 Speculation as to how long the unsafe condition

existed and what reasonable inspection would entail are

insufficient to establish constructive notice. Megal, 274

Wis. 2d 162, ¶20 (defendant did not have constructive notice of

french fry on which plaintiff slipped because plaintiff provided

no "testimony about the usual management and maintenance of a

14
See, e.g., Steinhorst v. H. C. Prange Co., 48 Wis. 2d
679, 684, 180 N.W.2d 525 (1970) (constructive notice satisfied
when slip and fall plaintiff introduced evidence that a
defendant retail store's self-service display of shaving cream
led to spills on the floor on at least five previous occasions
and that 15 minutes before the accident, a store clerk observed
"boys playing around" with the display); Strack v. Great Atl. &
Pac. Tea Co., 35 Wis. 2d 51, 55-56, 150 N.W.2d 361 (1967)
(defendant grocery store charged with constructive notice when
its method of operating a self-service fruit display caused an
unsafe condition).

19
 No. 2011AP1956

61,000 square-foot public building" or what is "reasonable to

expect for the management of such a facility").15

¶37 Furthermore, given the weather that often occurs in

February in Wisconsin, standing alone, a temporary natural

accumulation of snow is insufficient to provide notice of an

unsafe condition under the safe-place statute. See Bersch v.

Holton St. State Bank, 247 Wis. 261, 262, 19 N.W.2d 175 (1945)

(concluding that wet floor caused by snow tracked into bank

while it was snowing did not support liability because constant

floor mopping was not required). The safe-place statute does

not make employers and owners insurers of frequenters. Megal,

274 Wis. 2d 162, ¶9.

¶38 Special verdict question no. 1, the question directed

to Speedway's liability, asked the jury to determine whether

Speedway violated the higher standard of care required by the

safe-place statute because it asked whether Speedway made the

"premises as safe as its nature would reasonably permit on

15
See also Kaufman v. State St. Ltd. P'ship, 187 Wis. 2d
54, 522 N.W.2d 249 (Ct. App. 1994) (defendant did not have
constructive notice of a banana on which plaintiff slipped
because there was no evidence that defendant did or did not do
something to create the unsafe condition).

20
 No. 2011AP1956

February 6, 2007."16 Therefore, in order to find in Kochanski's

favor, the jury had to find that Speedway had notice, actual or

constructive, of the allegedly unsafe condition because notice

is a required predicate for a safe-place claim. Topp v. Cont'l

Ins. Co., 83 Wis. 2d 780, 789, 266 N.W.2d 397 (1978); see also

Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 371,

350 N.W.2d 730 (Ct. App. 1984) (concluding that the

determination of whether the owner had notice of an unsafe

condition is generally a jury question).

¶39 It was Kochanski's burden to "make a showing

sufficient to establish the existence of a[ll] element[s]

essential" to his safe-place claim, here notice of an unsafe

condition that caused injury. Transp. Ins. Co. v. Hunzinger

Constr. Co., 179 Wis. 2d 281, 290-92, 507 N.W.2d 136 (Ct. App.

1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). However, Kochanski presented no evidence that Speedway

did not have satisfactory snow removal methods and processes or

that it had satisfactory snow removal methods and processes but
did not follow them. The jury had Speedway's surveillance video

that showed the yellow curb clearly visible through a light

16
Special verdict question no. 1 limits inquiry to the acts
of Speedway's employees. However, an owner can violate the
safe-place statute in other ways. See Megal v. Green Bay Area
Visitor & Convention Bureau, Inc., 2004 WI 98, ¶9, 274 Wis. 2d
162, 682 N.W.2d 857 (citing Gross v. Denow, 61 Wis. 2d 40, 47,
212 N.W.2d 2 (1973)) ("safe-place statute addresses unsafe
conditions, not negligent acts"). Because special verdict
question no. 1 asked whether the premises was as safe as its
nature would reasonably permit, the jury had to find that all of
the requirements of a safe-place claim were met.

21
 No. 2011AP1956

accumulation of snow on the walkway where Kochanski fell.

Therefore, the jury likely coupled the video with the negative

inference from the jury instruction, as urged by counsel for

Kochanski, to find that Speedway had constructive notice of an

unsafe condition. We next examine prejudice.

E. Prejudice

¶40 When properly used, the absent witness instruction

will not "act as a substitute for affirmative proof" but rather,

will be "used by the jury in weighing the evidence actually

produced." Zuber v. N. Pac. Ry. Co., 74 N.W.2d 641, 650 (Minn.

1956). To hold otherwise would cause the instruction to operate

as a presumption rather than as an inference.

¶41 Normally, a party seeking relief must produce evidence

to satisfy each element of his claim and bear the risk of non-

persuasion. Fleming James, Jr., Burdens of Proof, 47 Va. L.

Rev. 51, 51 (1961). However, when one party has evidence within

its exclusive control, a presumption in favor of the other party

may be appropriate. Francis H. Bohlen, The Effect of Rebuttable
Presumptions of Law Upon the Burden of Proof, 68 U. Pa. L. Rev.

307, 314 (1920) (presumptions arise when there is a "need [to]

relax[] the stringency of the proof," such as when "the power to

produce evidence of the fact on which the litigant's rights

depend is exclusively in the power of [his or her] opponent").

These concepts inform our prejudice analysis.

¶42 A party cannot rely on the inference from the missing

witness instruction to satisfy a necessary element of proof for
that party's claim. Paulsen Lumber, Inc. v. Anderson, 91
22
 No. 2011AP1956

Wis. 2d 692, 699, 283 N.W.2d 580 (1979) (concluding that "[e]ven

were the defendant's failure to produce the subpoenaed documents

without adequate excuse, the resultant inference cannot be used

to relieve the plaintiff of its obligation to establish a prima

facie case"). Therefore, an erroneously given absent witness

instruction is prejudicial when a party with the burden of proof

uses the inference from the instruction to provide factual proof

for an element of a claim. Id.; Zuber, 74 N.W.2d at 650.

¶43 An erroneously given absent witness instruction

misleads jurors when it allows them to find that a party has

satisfied an element of a claim when it has not. In other

words, an erroneously given absent witness instruction is

prejudicial when the jury could not have found that the party

requesting the instruction proved all of the elements of his or

her claim without drawing the inference that a party has

prevented the jury from having "the full truth." Paulsen

Lumber, 91 Wis. 2d at 698-99; Ballard, 33 Wis. 2d at 616. That

is precisely what happened in the present case.
¶44 Without inferring from Speedway's decision not to call

former employees as witnesses that its snow removal methods and

processes could reasonably be expected to give rise to an unsafe

condition or that there were satisfactory methods and processes

but the employees did not follow them, the jury would not have

found that Kochanski satisfied the notice element of his safe-

place claim. Kochanski provided no evidence that Speedway had

actual notice of an unsafe condition based solely on the video
showing a light accumulation of snow. Compare Hannebaum v.
23
 No. 2011AP1956

Direnzo & Bomier, 162 Wis. 2d 488, 500, 469 N.W.2d 900 (Ct. App.

1991) (slip and fall defendants who asked arriving clients about

continuing weather conditions two-and-one-half hours after their

agent salted had actual notice of icy conditions).

¶45 Kochanski also offered no evidence as to how long the

alleged unsafe condition existed. His testimony that a Speedway

employee applied salt to the walkway after his fall does not

establish the length of time that the snow, which Kochanski

alleged concealed the curb, contrary to the video depiction, was

a dangerous condition before the accident. Nor does the weather

record from Milwaukee Mitchell Airport, which Speedway used to

dispute the amount of snow accumulation, establish a dangerous

condition at the particular Speedway store where the accident

occurred. Having submitted special verdict question no. 1 that

asked the jury whether Speedway made the "premises as safe as

its nature would reasonably permit," which describes the

standard of care under the safe-place statute, and without

proving actual notice of an unsafe condition or the length of
time the allegedly unsafe condition existed, Kochanski had to

prove constructive notice to succeed on liability.17

17
There is an additional exception to the notice
requirement under the safe-place statute. When a defect is
structural, meaning it "arises by reason of the materials used
in construction or from improper layout or construction," no
notice is required. Mair v. Trollhaugen Ski Resort, 2006 WI 61,
¶22, 291 Wis. 2d 132, 715 N.W.2d 598 (quoting Barry v. Emp'rs
Mut. Cas. Co., 2001 WI 101, ¶28, 245 Wis. 2d 560, 630 N.W.2d
517) (internal quotation marks omitted)).

24
 No. 2011AP1956

¶46 Instead of subpoenaing or deposing the former

employees who were working at the time of his fall and

questioning them about any snow removal methods and processes

Speedway may have had in place at that time, Kochanski's

attorney took another route. At trial, he had a member of his

staff read Speedway's interrogatory responses that identified

the former employees and provided their last known addresses

into the record. He then requested the absent witness

instruction and after it was given, he argued:

The law says . . . you can infer that had they
called that witness, they would have gotten some
unfavorable testimony.

Why didn't [Speedway] call anybody? What would
that unfavorable testimony have been?

It makes you wonder what's going on[.] What is
it that's being decided at the highest levels of
SuperAmerica? . . . Why don't you get to hear the
whole story?
In essence, he told the jury that despite the lack of any

evidence as to Speedway's snow removal methods and processes,

the jury should infer notice from Speedway's failure to call any
employees as witnesses.

This exception does not apply. While Kochanski testified
that he expected the curb's ramp location to be directly in
front of the door and Speedway argued that "Kochanski's defense
concerning . . . contributory negligence was that the curb
opening was in the wrong place," Kochanski never made the legal
argument that a structural defect caused his fall. To be sure,
if Kochanski intended to argue the curb's location was a
structural defect, he would have objected when Judge Siefert
gave the latter portion of Wis JI——Civil 1900.04, which
instructs the jury that they must find notice.

25
 No. 2011AP1956

¶47 However, we already have decided that providing proof

necessary to a plaintiff's claim is not a proper function of the

missing witness instruction. Paulsen Lumber, 91 Wis. 2d at 699.

If Kochanski could not establish actual notice or the length of

time the defect existed, he should have produced evidence that

Speedway's methods and processes could either reasonably have

been expected to give rise to an unsafe condition or that

Speedway had satisfactory methods and processes, but they were

not followed. Kochanski did neither.

¶48 To allow the absent witness instruction to substitute

for evidence in this manner would subvert the requirement that a

plaintiff prove notice in a safe-place claim. Accordingly, we

conclude that the erroneous giving of the absent witness

instruction was prejudicial, and we affirm the decision of the

court of appeals.

III. CONCLUSION

¶49 We conclude that 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, 33 Wis. 2d at 616. And finally, the
instruction was prejudicial because without drawing a negative
26
 No. 2011AP1956

inference about Speedway's snow removal methods and processes

from Speedway's decision not to call the former employees as

witnesses, 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.

By the Court.—The decision of the court of appeals is

affirmed.

27
 No. 2011AP1956.awb

¶50 ANN WALSH BRADLEY, J. (dissenting). If an attorney

were advising someone who had fallen because of a snow-covered

or icy sidewalk, likely one of the things the client would be

told is to take a picture of the conditions with a cell phone or

camera.

¶51 Why? A picture says a thousand words and represents

some of the best evidence. But if a picture says a thousand

words, then a video speaks volumes.

¶52 In this case, the conditions, both before and after

the fall, were recorded on Speedway's surveillance cameras. The

video recordings they created were played to the jury and

provided a wealth of information——evidence——about the condition

of the area where Mr. Kochanski fell.

¶53 It is only by refusing to acknowledge what is depicted

in this video evidence presented to the jury that the majority

is able to discard the jury verdict and conclude that Speedway

had no notice of the unsafe condition. Thus, the majority

usurps the role of the jury, substituting its own limited view
of the evidence for that of the actual evidence of record

presented to the jury.

¶54 The majority also turns a blind eye to the circuit

court's actual rationale for giving the missing witness

instruction, thus skewing the circuit court's analysis. As a

result, the majority is able to sidestep the deference an

appellate court is to give to a circuit court when it makes a

discretionary determination that the evidence of record supports
the giving of a particular instruction.

1
 No. 2011AP1956.awb

¶55 Perhaps most problematic of all, however, is not the

majority's failure to acknowledge actual evidence of record or

ignoring the circuit court's actual rationale for giving the

missing witness instruction. Those errors potentially affect

the outcome of only this particular case. Most problematic is

the majority's failure to acknowledge well-settled safe place

precedent which has the potential to unsettle long-standing safe

place jurisprudence for years to come.

¶56 When I consider the evidence presented to the jury,

the circuit court's actual rationale, and our safe place

precedent, I conclude that the jury's findings and the circuit

court's discretionary decision to give the missing witness jury

instruction are to be given deference. There is credible

evidence that supports the jury's verdict. Likewise, the

circuit court's discretionary decision to give the absent

witness instruction was grounded in a reasonable view of the

evidence of record.

¶57 Assuming for argument's sake that it was error to give
the instruction, I conclude such error was harmless. Our law is

clear that Kochanski could have made closing arguments about the

inferences to be drawn from the missing witnesses even without

the jury instruction. Contrary to the majority's assertion that

the instruction was a substitute for any evidence in the record,

there was ample credible evidence——with or without the

instruction——for the jury to find that Speedway had notice of

the unsafe condition.
¶58 Accordingly, I respectfully dissent.

2
 No. 2011AP1956.awb

I.

¶59 The majority attempts to avoid the tried-and-true

standard of appellate review by simply refusing to acknowledge

the evidence of record presented to the jury. It is only by

substituting its own limited view of the evidence for that of

the actual evidence considered by the jury that the majority is

able to overturn the jury's verdict and conclude as a matter of

law that Speedway had no notice of the unsafe condition.

¶60 It has long been established that the question of

negligence under the safe place statute is for the jury.1 See

Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 361, 208 N.W.2d 388

(1973); Heiden v. Milwaukee, 226 Wis. 92, 102, 275 N.W. 922

(1937); Dugenske v. Wyse, 194 Wis. 159, 165, 215 N.W. 829

(1927). Appellate review of such determinations "is very

limited, narrow, and circumscribed." Hoffmann v. Wis. Elec.

Power Co., 2003 WI 64, ¶9, 262 Wis. 2d 264, 664 N.W.2d 55. We

must view evidence "in a light most favorable to a verdict" and

will not upset a verdict or finding of fact if "there is any
credible evidence which, under a reasonable view, admits to an

1
The safe place statute states:

Every employer shall furnish employment which shall be
safe for the employees therein and shall furnish a
place of employment which shall be safe . . . for
frequenters thereof . . . and shall adopt and use
methods and processes reasonably adequate to render
such employment and places of employment safe, and
shall do every other thing reasonably necessary to
protect the life, health, safety, and welfare of such
employees and frequenters. . . .

Wis. Stat. § 101.11(a).

3
 No. 2011AP1956.awb

inference which supports the verdict." Becker v. Barnes, 50

Wis. 2d 343, 345, 184 N.W.2d 97 (1971).

¶61 Our review is even more restrained where, as here, the

verdict has the approval of the circuit court. In such cases we

have repeatedly stated that jury determinations are afforded

"special deference." D.L. Anderson's Lakeside Leisure Co. v.

Anderson, 2008 WI 126, ¶22, 314 Wis. 2d 560, 757 N.W.2d 803;

Hoffmann, 262 Wis. 2d 264, ¶9; Meurer v. ITT General Controls,

90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979). "Therefore, this

court will not upset a jury verdict unless there is such a

complete failure of proof that the verdict must have been based

on speculation." Hoffmann, 262 Wis. 2d 264, ¶9 (citing Coryell

v. Connecticut, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979)).

¶62 Notice, in particular, is a matter this court has

generally declared to be a jury question. Burmek v. Miller

Brewing Co., 12 Wis. 2d 405, 413, 107 N.W.2d 583 (1961); see

also Werner v. Gimbel Bros., Inc., 8 Wis. 2d 491, 493, 99 N.W.2d

708 (1959) ("The only issue on this appeal is the question of
fact whether the defendants' actual or constructive notice of

the unsafe condition of the walk warned them in time to require

them to take reasonable precautions to prevent such an accident.

We consider that the evidence bearing on that issue presents a

jury question not to be determined as a matter of law.").

¶63 Here, the jury was instructed that in order to find

that Speedway failed to maintain the premises as safe as its

nature would reasonably permit, it must find that Speedway had

4
 No. 2011AP1956.awb

actual or constructive notice of the defect. The jury made such

a finding, which the majority now overturns as a matter of law.

¶64 The majority is able to disregard the jury's findings

because it fails to acknowledge that the evidence considered by

the jury showed the unsafe condition, that the employees had

notice of the condition, and that an employee later ameliorated

the condition by salting. Instead it suggests that the only

relevant information on the video is that it was snowing. See

Majority op., ¶37 ("[A] temporary natural accumulation of snow

is insufficient to provide notice of an unsafe condition under

the safe-place statute."), ¶44 ("Kochanski provided no evidence

that Speedway had actual notice of an unsafe condition based

solely on the video showing a light accumulation of snow."), ¶48

("To allow the absent witness instruction to substitute for

evidence in this manner would subvert the requirement that a

plaintiff prove notice in a safe-place claim.").

¶65 The heart of the safe place claim rests on the issues

of notice of the condition of the premises and procedures
employed by Speedway to keep the premises "as safe as the nature

of the . . . place . . . will reasonably permit." See Wis.

Stat. § 101.01(13). Contrary to the majority's conclusion,

there was ample credible evidence in the record——both

testimonial and video——to support the jury's findings.

¶66 The jury heard testimony that between one half and two

inches of snow had fallen that morning. Kochanski testified

that as he approached the front door of the Speedway store, he
observed what he thought was a wheelchair cut-out from the

5
 No. 2011AP1956.awb

elevated sidewalk abutting the store. It was immediately in

front of the door. To the right there was a visible segment of

a yellow painted line that marked the edge of the elevated

sidewalk. No yellow painted line was visible immediately in

front of him. Rather, it was covered with snow.

¶67 Likewise, the video pictures revealed to the jury that

snow covered all portions of the yellow painted line that edged

the elevated sidewalk, with the exception of a segment of the

yellow paint to the right of the doors. The edge of the

sidewalk was partially hidden to those who entered and exited
2
the front entry door.

¶68 The video pictures also revealed that the outside snow

conditions were in plain view of the Speedway employees. At all

relevant times, at least one employee was stationed at a cash

register located within a few feet of the front door and

immediately next to the front side of the building. The front

side of the building as well as the front doors were glass.

2
This image is from 12:54:46 on the surveillance tape. The
online version of this opinion displays the images in color and
more clearly shows where the snow obscured the yellow line from
vision.

6
 No. 2011AP1956.awb

¶69 Kochanski told the jury that after he fell he lay in

front of the entry door, writhing in pain. He observed two

Speedway employees looking out at him, but they did nothing to

assist him. The video picture3 below shows the two Speedway

employees looking out the window at Kochanski during the time

that he is lying on the sidewalk.

¶70 Kochanski testified at trial that as he was lying on

the ground in front of the door, he saw someone come out of the

store with salt. He stated that she came around the corner on

the north side of the building and then went back. The video

footage presented to the jury also revealed someone salting
after Mr. Kochanski was taken from the scene. The first picture

below4 shows a woman salting the sidewalk. The second video

picture, from approximately 45 minutes later, shows that after

the fall and salting, the yellow line edging the pavement was

visible to all.

3
This image is from 12:54:57 of the surveillance tape.
Again, the online version of this opinion is displayed in color
and more clearly shows the images.
4
The first image is at 12:59:21 on the surveillance tape,
the second image is at 01:45:22 on the surveillance tape.

7
 No. 2011AP1956.awb

¶71 The video footage is helpful in that it demonstrated

to the jury the unsafe condition, i.e. the snow covering the

yellow line on the curb, that the unsafe condition was in plain

view of Speedway employees, that Speedway had some policy or

procedure on salting, and that the salting eliminated the unsafe

condition. When considering all of the evidence presented to

the jury, it is apparent that there is credible evidence that

supports the jury's findings that Speedway had notice of the

unsafe condition and that it did not maintain the premises as

safe as its nature would reasonably permit.

II.
¶72 In addition to ignoring evidence of record, the

majority also turns a blind eye to pivotal parts of the record

which state the circuit court's actual rationale for giving the

missing witness instruction. As a result, the majority skews

the circuit court's analysis.

¶73 This court accords deference to a circuit court's

decision to give a particular jury instruction. A circuit court

is on the front lines during a trial. It sees the evidence
firsthand and is in the best position to evaluate whether it

8
 No. 2011AP1956.awb

supports giving a particular jury instruction. As the majority

correctly notes, "[a] circuit court has broad discretion to

instruct a jury." Majority op., ¶10 (citing Nommensen v. Am.

Cont'l Ins. Co., 2001 WI 112, ¶50, 246 Wis. 2d 132, 629 N.W.2d

301).

¶74 After reviewing the evidence and considering the

parties' arguments, the circuit court decided to give the absent

witness jury instruction. Admittedly, the missing witness

instruction is to be sparingly given. Here, the circuit court

clearly stated its reasoning on the record and succinctly

summarized its reasoning for giving the instruction. The first

two reasons focus on the former employees who did not testify:

Number one, all five were placed on the witness list
by Speedway;

Number Two, it does not appear that any effort was
made to subpoena any of those five;
The third reason discusses Speedway's failure to call any of its

current employees:

Number three, as to Speedway's policy and practices,
current employees are capable of giving that
testimony, and none of them has been subpoenaed
either.
The fourth reason focuses on the materiality of their testimony,

reasoning that the jury has a right to know Speedway's policies

regarding salting, particularly whether there was any salting

done of the sidewalk area before the accident:

And then Number Four, I think that the jury has a
right to know what Speedway's policies are regarding
salting; and, particularly the videotape, at least so
far, has not shown whether or not the premises or the
area were salted before the accident.

9
 No. 2011AP1956.awb

For all of those reasons, the Court has decided that
Instruction 410 [the absent witness instruction]
should be given.
¶75 On appeal, "review of the trial court's decision is

deferential." DeChant v. Monarch Life Ins. Co., 204 Wis. 2d

137, 148, 554 N.W.2d 225 (Ct. App. 1996). Our examination is

two-fold: (1) did the circuit court's instruction correctly

state the law and (2) was the instruction "grounded on a

reasonable construction of the record." Id. at 151.

¶76 Here, no one argues that the jury instruction

misstated the law. We are left then to examine whether a

reasonable view of the evidence of record supports the giving of

the instruction.

¶77 Instead of deferring to the circuit court, the

majority skews the circuit court's analysis and concludes that

it was error to give the absent witness instruction.

¶78 At the threshold of its analysis, the majority

correctly notes there are three elements necessary to support a

jury instruction regarding an absent witness: (1) that the

uncalled witness has material information, (2) that the uncalled

witness is within the control of the party or that it is more

natural for a party to call that witness, and (3) that it is

reasonable to infer that the absent witness would have exposed

facts unfavorable to the party.5 Majority op., ¶13. After

5
The majority states: "a court may give the instruction
only if there are facts in the record that would allow the jury
to reasonably draw a negative inference from the absence of a
particular material witness." Majority op., ¶13 (citing
Thoreson v. Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 231,
237, 201 N.W.2d 745 (1972); State v. Glenn, 199 Wis. 2d 575,
585, 545 N.W.2d 230 (1996)) (emphasis added).

10
 No. 2011AP1956.awb

determining that the three elements have not been met, the

majority concludes that the giving of the instruction was error.

¶79 In reaching this conclusion, the majority skews the

circuit court's stated rationale in two ways. First, in

considering materiality, it reframes the issue, focusing on

whether the employees had knowledge of the independently

contracted snow removal methods rather than the actual focus of

the circuit court——Speedway's policies for salting. Majority

op., ¶23. In elaboration, the majority cites the lack of proof

that the employees would know about the snow removal services,

relying on the fact that Speedway's witness list indicated it

had an independent contractor for snow removal. Id.

¶80 The circuit court's rationale had nothing to do with

the independently contracted snow plowing procedures. Rather,

the circuit court clearly stated that its concern about

Speedway's salting policies informed the fourth rationale for

giving the absent witness instruction: "I think that the jury

has a right to know what Speedway's policies are regarding
salting; and, particularly the videotape, at least so far, has

not shown whether or not the premises or the area were salted

before the accident."

For several reasons it appears that the majority's use of
the word "particular" is akin to a fugitive word in the
sentence: (1) the cases cited neither support nor even mention
the word "particular" anywhere in the opinions; (2) because the
word "particular" is not further used and the concept is not
further discussed, it is unclear in application what degree of
particularity is required; and (3) in some situations it may be
unworkable because the party asking for the instruction may not
know what "particular" witness or witnesses are knowledgeable
and should have been called to testify.

11
 No. 2011AP1956.awb

¶81 In this case, testimony regarding Speedway's salting

policies is relevant to determining whether Speedway had

reasonably adequate processes in place to maintain their

premises in as safe a condition as its nature would reasonably

permit. A reasonable construction of the record supports the

circuit court's determination that the employees would have this

information. As noted above, Mr. Kochanski's testimony

described someone coming out of the store and salting while he

was lying on the ground. The videotape also shows someone

salting after Mr. Kochanski had left. Indeed, from the video

footage, the results after the salting can also be viewed.

Further, Speedway's witness list indicates that the employees

might be called to testify about Speedway's policies and

procedures concerning maintaining the safety of the premises.

¶82 Even if the employees could not testify about policies

and procedures, their lack of knowledge regarding a salting

policy or procedure may be relevant. Likewise, their knowledge

(or lack thereof) of the unsafe condition was directly at issue
due to the safe place claim.

¶83 Second, the majority also skews the circuit court's

stated rationale in its analysis of whether it would be more

natural for Speedway or Kochanski to call the employees to

testify by focusing exclusively on former employees. It

concludes it is not more natural for Speedway to call the former

employees but leaves a total void in its analysis regarding

whether it would be more natural for Speedway to call current
employees as witnesses to testify about the policies and

12
 No. 2011AP1956.awb

procedures for salting. Majority op., ¶24. Although the

circuit court specifically addressed current employees in its

analysis, the majority dismisses them entirely. Id. Rather

than analyzing the circuit court's actual rationale, it attempts

to delegitimize it by merely noting that Kochanski did not

advance the argument. Id.6

¶84 If it had analyzed the propriety of giving the missing

witness instruction vis-a-vis current employees, the majority's

conclusion would be unsupportable. So what does it do? It

ignores the current employees and as a result also ignores the

circuit court's stated rationale.

¶85 The circuit court explained that the third basis of

its reasoning for giving the missing witness instruction focused

exclusively on current employees, not former employees: "Number

three, as to Speedway's policy and practices, current employees

are capable of giving that testimony, and none of them has been

subpoenaed either."

6
The majority also suggests that giving the absent witness
instruction based on Speedway's failure to call current
employees is somehow improper as it places the burden on
Speedway to call "'possible witness[es] to a fact, lest [its]
failure to do so will result in an inference against [it].'"
Majority op., ¶24 (quoting Ballard v. Lumbermens Mut. Cas. Co.,
33 Wis. 2d 601, 615, 148 N.W.2d 65 (1967)) (alterations in
majority op.).

In Ballard, this court stated that the absent witness
instruction does not place a burden on a party to call "every
possible witness to a fact." Id. However, that statement was
made in reference to an absent witness whose testimony would
have been cumulative of other testimony presented. Id.
Requiring Speedway to call a witness (or sufficiently explain
witnesses' absences) is far different from requiring Speedway to
call every possible witness.

13
 No. 2011AP1956.awb

¶86 Kochanski argues that the absent witness instruction

was appropriate based on Speedway's failure to introduce the

testimony of any of the employees on duty on the day of his

accident or any other employees (including current employees)

who would have knowledge of Speedway's practices and procedures

regarding salting and snow removal. Under our precedent,

current employees are viewed as being under the control of their

employer, or at least more natural for the employer to call.

See, e.g., Coney v. Milwaukee & Suburban Transp. Corp., 8 Wis.

2d 520, 527, 99 N.W.2d 713 (1959).

¶87 Indeed, at oral argument Speedway acknowledged the

obvious: when it comes to current employees, it would be easier

for Speedway to compel their testimony and they would be more

likely to testify in favor of their employer.

J. Bradley: If this had been a situation where the
employees, or some of them, were still current - how
does that affect your analysis and argument? Would
it?

Attorney for Speedway: Well if there were some current
employees, that, I think that would have made a
difference. Because then there's an employer-employee
relationship. And it's easier to compel that person
to appear. That person who's a current employee is
much more willing or much more apt to testify
favorably for their employer.
Yet, the majority fails to acknowledge the obvious. The

consequence of this failure is more than just having an analysis

that is a couple of bubbles off plumb. By reaching its

conclusion without considering current employees, the majority

skews not only the circuit court's stated rationale, it also
skews the result of its opinion.

14
 No. 2011AP1956.awb

¶88 If the majority had considered the current employees

as absent witnesses, it would be reasonable to conclude that it

would be natural for Speedway to call the employees as witnesses

and that their testimony would naturally favor Speedway,

satisfying the third showing necessary for giving the absent

witness instruction. See Coney, 8 Wis. 2d at 527 (where

employee was a material witness, "the failure on the part of the

defendant to call its own employee as a witness, or to

satisfactorily explain the reason for his not being called as a

witness permits an inference that the witness' testimony would

be or is unfavorable to the defendant's cause.").

¶89 In sum, the majority errs by analyzing its own skewed

version of the circuit court's rationale rather than analyzing

the actual rationale stated on the record. Had it analyzed the

circuit court's actual rationale, the majority's conclusion that

the instruction was erroneously given could not stand. Here,

the jury instruction correctly stated the law and was grounded

on a reasonable construction of the record. Accordingly, the
discretionary decision to give the jury instruction is to be

accorded deference by a reviewing court. DeChant, 204 Wis. 2d

at 148.

III.

¶90 The majority also misstates or ignores well-settled

safe place precedent which has the potential to unsettle safe

place precedent for years to come.

¶91 As the majority explains, a plaintiff must establish
that a defendant had actual or constructive notice of an unsafe

15
 No. 2011AP1956.awb

condition in order to prevail on a safe place claim. Majority

op., ¶32. It indicates that constructive notice can be

established in two ways: (1) by showing that the unsafe

condition existed for a long enough time that a reasonably

vigilant owner would have discovered and repaired it, or (2) by

showing the nature of the business, the nature of the condition,

and the public policy involved so that the jury could find that

the defendant's methods and processes would reasonably be

expected to give rise to the unsafe the condition. Id. at ¶34-

35. The majority concludes that because none of these was

shown, the jury would not have found that the defendant had

actual or constructive notice of the unsafe condition without

taking an impermissible inference from the absent witness jury

instruction. Id. at ¶44-45.

¶92 Missing from the majority's analysis is any reference

to our plain view precedent. Constructive notice may be

established by showing that the unsafe condition was in plain

view of the defendant. See Terrence Berres, Boyle's Wisconsin
Safe-Place Law (online ed. 2006) ("Time of a defect's existence

is of no materiality where it was readily observable to an agent

or employee who was in the area.").

¶93 For example, in Rudzinski v. Warner Theatres, Inc., 16

Wis. 2d 241, 114 N.W.2d 466 (1962), where a woman slipped on wet

spots on the floor only a few feet from where the usher was

sitting, the court concluded there was a sufficient basis for

finding notice even without any indication of how long the spots
had been there. "This is because [the wet spots] were in plain

16
 No. 2011AP1956.awb

view of this usher and the jury would be warranted in concluding

that he should have seen them. This would afford sufficient

basis for a finding of constructive notice." Id. at 249.

¶94 Likewise, in Caldwell v. Piggly Wiggly Madison Co., 32

Wis. 2d 447, 145 N.W.2d 745 (1966), even though the unsafe

condition existed for only a short period of time, the court

determined that there was sufficient evidence of constructive

notice because the manager was in a position from which he could

have seen the unsafe condition if he had looked in that

direction. The court explained that "[the jury] could have

concluded that the hazard was in plain view even if [the

manager] in fact had not seen it." Id. at 455.

¶95 Here, the majority fails to acknowledge that the

evidence shows that the unsafe condition was in plain view of an

employee. Kochanski fell in front of the doors to the Speedway.

The doors and surrounding façade of the building are glass.

From this, the jury could have determined that the unsafe

condition was in plain view of an employee inside the store and
that an employee should have observed the condition,

constituting constructive notice to Speedway.

¶96 Based on the video evidence, the jury could also have

found that Speedway employees had actual notice of its unsafe

condition. Indeed, the video footage from Speedway's

surveillance cameras shows that the checkout counter is right

next to the window and an employee standing there behind the

register prior to the accident. Later portions of the video
show two employees looking out the window at Kochanski.

17
 No. 2011AP1956.awb

¶97 The majority overlooks this plain view evidence and

fails to apply our plain view safe place precedent. Instead, it

incorrectly determines that the jury would not have found notice

but for the absent witness instruction.7

¶98 The majority's discussion of the safe place claim also

errs by ignoring well-established caselaw on the special verdict

question. The majority recites the verdict question that the

circuit court read regarding liability: "Was Speedway

SuperAmerica LLC, through the acts of its employees, negligent

in failing to maintain the Speedway SuperAmerica premises as

safe as its nature would reasonably permit on February 6, 2007?"

Id., ¶30. The majority then suggests that this instruction was

improper because it combined the standards of care and the

elements of proof for negligence and safe place claims. Id.,

¶31. In support of this suggestion, the majority points to a

case from the mid-1950s. Majority op., ¶31 n.13 (citing Sturm

v. Simpson's Garment Co., 271 Wis. 587, 74 N.W.2d 137 (1956)).

¶99 Our law on the form of the safe place jury instruction
has since changed. The circuit court's special verdict question

7
Additionally, the physical appearance of an unsafe
condition may be circumstantial evidence from which a jury could
infer the length of time it had been present. See, e.g.,
Gulbrandsen v. H & D, Inc., 2009 WI App 138, ¶15, 321 Wis. 2d
410, 773 N.W.2d 506.

In this case, the snow in the area of the fall was dirty
and trampled. From this the jury could have inferred that the
snow had been there for a long enough time that Speedway should
have discovered it and thus had constructive notice of the
unsafe condition.

18
 No. 2011AP1956.awb

was consistent with the change in law and with caselaw that we

have been relying on for decades. For example, see Krause v. VFW

Post No. 6498, 9 Wis. 2d 547, 554, 101 N.W.2d 645 (1960); Mullen

v. Reischl, 10 Wis. 2d 297, 307, 103 N.W.2d 49 (1960); Petoskey

v. Schmidt, 21 Wis. 2d 323, 331-32, 124 N.W.2d 1 (1963); Presti

v. O'Donahue, 25 Wis. 2d 594, 599, 131 N.W.2d 273 (1964);

Skybrock v. Concrete Constr. Co., 42 Wis. 2d 480, 484, 167

N.W.2d 209 (1969); Carr v. Amusement, Inc., 47 Wis. 2d 368, 375,

177 N.W.2d 388 (1970); May v. Skelley Oil Co., 83 Wis. 2d 30,

34, 264 N.W.2d 574 (1978); Topp v. Continental Ins. Co., 83 Wis.

2d 780, 783, 266 N.W.2d 397 (1978); Barry v. Emp'rs. Mut. Cas.

Co., 2001 WI 101, ¶33, 245 Wis. 2d 560, 630 N.W.2d 517.

¶100 In 1960, the Krause court instructed circuit courts to

use essentially the same language that the circuit court used

here. 9 Wis. 2d at 554. Krause instructed that the special

verdict question ask: ". . . was the defendant negligent with

respect to maintaining the dance hall as safe as the nature of

the place reasonably permitted?" Id. Likewise, the special
verdict question that the circuit court read is based on the

model jury instruction: "[w]as (defendant) negligent in failing

to (construct) (repair) (maintain) the premises as safe as the

nature of its business would reasonably permit?" Wis JI——Civil

1900.4.

¶101 The majority's criticism of the instruction appears

to be that it combines a negligence claim with a safe place

claim. Majority op., ¶31. This criticism overlooks the long
recognized role of negligence in a safe place claim. A safe

19
 No. 2011AP1956.awb

place claim is based on negligence with a higher standard of

care than ordinary negligence. Krause, 9 Wis. 2d at 552. See

also Barry, 245 Wis. 2d 560, ¶18 ("Wisconsin's safe place

statute, Wis. Stat. § 101.11(1), is a negligence statute that .

. . establishes a duty greater than that of ordinary care

imposed at common law."). See also Gennrich v. Zurich Am. Ins.

Co., 2010 WI App 117, ¶23, 329 Wis. 2d 91, 789 N.W.2d 106.

¶102 The special verdict question used in this case is

essentially the same as the language that was indicated by our

caselaw decades ago and was in substance the same as provided in

the model jury instruction, Wis JI——Civil 1900.4. The model

instruction and comments were approved by the Wisconsin Jury

Instruction Committee in 1974. Wis JI——Civil 1900.4, Comment.

Despite the suggestion of the majority, there was nothing

improper with the wording of the instruction used in this case.

IV.

¶103 The majority's discussion of the safe place law is

contained in its analysis of whether it was harmless error to
give the absent witness instruction. It determines that because

the jury had no basis in the record to find that Speedway had

notice of the unsafe condition, the error in giving the absent

witness instruction was not harmless. Majority op., ¶48.

¶104 Contrary to the majority I conclude that even if it

was error for the circuit court to give the absent witness

instruction, such error was harmless.

¶105 Notably, Kochanski could still have pointed to the
nonproduction of the employees in closing arguments and

20
 No. 2011AP1956.awb

suggested the jury make an inference even if the circuit court

had not given the absent witness instruction. See Feldstein v.

Harrington, 4 Wis. 2d 380, 390, 90 N.W.2d 566 (1958) ("It also

would have been proper for plaintiff's counsel to comment in the

argument to the jury on such failure of the defendants to have

called Dr. Houkom, if the fact had previously been established

in evidence that such doctor had examined the plaintiff at the

defendants' request."); cf. Ballard., 33 Wis. 2d at 615 ("[The

court] did permit the defendant to comment to the jury upon the

nonproduction of the chiropractor and, as a consequence, the

defendant could not have been prejudiced by the failure to give

the specific instruction.").

¶106 The only grounds for the majority's conclusion that

the instruction was not harmless is the lack of evidence of

notice on the safe place claim. Majority op., ¶¶44, 49. The

majority reasons that because there is no evidence of notice in

the record, the only way the jury would have found in favor of

Kochanski was if it had taken an impermissible inference based
on the absent witness jury instruction. Id. Contrary to the

majority's assertion that the instruction was a substitute for

any evidence in the record, here there was ample credible

evidence——with or without the instruction——for the jury to find

that Speedway had notice of the unsafe condition.

V.

¶107 As discussed above, the majority fails to acknowledge

the evidence presented to the jury supporting its verdict; fails
to deal with the circuit court's actual rationale, including the

21
 No. 2011AP1956.awb

analysis of current employees and the policies on salting; and

fails to apply established safe place precedent on plain view

and jury instructions.

¶108 Contrary to the majority, I apply the tried-and-true

standards of appellate review and conclude that both the jury's

determination of negligence and the circuit court's

discretionary decision to give the absent witness instruction

are to be accorded deference. There was ample credible evidence

in the record for the jury's verdict. Further, the circuit

court's instruction correctly stated the law and was based on a

reasonable construction of the record. In any event, even if it

was error to give the instruction, such error was harmless.

Accordingly, I respectfully dissent.

¶109 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

22
 No. 2011AP1956.dtp

¶110 DAVID T. PROSSER, J. (dissenting). This case raises

troubling issues about appellate review.

¶111 James E. Kochanski (Kochanski) sustained serious

injuries when he tripped on a raised sidewalk and fell as he

attempted to go inside a Speedway SuperAmerica gas station to

pay his bill. The incident occurred at 12:54 p.m. on February

6, 2007. It had been snowing that morning, and snow had

accumulated on the ground. According to Kochanski, the snow

obscured his vision of the raised sidewalk in front of the door

to the station, and he fell.

¶112 On August 5, 2009, Kochanski and his wife filed suit

against Speedway SuperAmerica LLC (Speedway) in Milwaukee County

Circuit Court. They claimed that Speedway had been negligent

and had violated Wisconsin's safe-place statute, Wis. Stat.

§ 101.11.

¶113 Because this is Wisconsin, not Florida, individuals

and merchants must deal with the frequency of snow-covered

surfaces during winter months. Even in good weather, people can
trip and fall. Bad weather, with its attendant ice and snow,

increases this risk. However, the fact that a person falls on a

merchant's property does not necessarily mean that the merchant

can or should be held responsible for the person's injuries.

¶114 Whether a merchant is liable for a person's injuries

on the merchant's property is dependent on the factual

circumstances of each case, as those facts and circumstances are

presented to the trier of fact at trial. The plaintiff must
satisfy his burden of proof, and the defendant is entitled to

1
 No. 2011AP1956.dtp

challenge the sufficiency of the plaintiff's evidence before

being asked to present a defense. In this case, the defendant

did not challenge the sufficiency of the evidence at the end of

the plaintiff's case or ask the court later for a directed

verdict.

¶115 When a case is permitted to go to a jury, the jury's

verdict is entitled to substantial deference. When the circuit

court approves a jury verdict, "this court will not overturn the

jury's verdict unless 'there is such a complete failure of proof

that the verdict must be based on speculation.'" Morden v.

Cont'l AG, 2000 WI 51, ¶40, 235 Wis. 2d 325, 611 N.W.2d 659

(quoting Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723

(1979)). As we said in Ballard v. Lumbermens Mutual Casualty

Co., 33 Wis. 2d 601, 605, 148 N.W.2d 65 (1967):

The review of this court:

[M]ust be based on the rule that when there is
any credible evidence which under any reasonable view
supports the jury finding, especially when the verdict
has the approval of the trial court, it should not be
disturbed. This is another way of saying the evidence
must be viewed in the light most favorable to the
verdict.
Id. (quoting Springen v. Ager Plumbing & Heating, Inc., 19

Wis. 2d 487, 489, 120 N.W.2d 692 (1963)).

¶116 Given this well established law, a party that fails to

obtain the verdict it expected almost inevitably searches to

find error in the trial. In this case, the error alleged is

Judge Seifert's decision to give the absent witness instruction
to the jury. Wis JI——Civil 410.

2
 No. 2011AP1956.dtp

¶117 The law on review of jury instructions also is clear.

This court will not reverse a circuit court's decision to give a

jury instruction "absent an erroneous exercise of discretion."

State v. Hubbard, 2008 WI 92, ¶28, 313 Wis. 2d 1, 752 N.W.2d 839

(citation omitted). Even if a circuit court does err in giving

a jury instruction:

No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the
ground of . . . misdirection of the jury . . . unless
in the opinion of the court to which the application
is made, after an examination of the entire action or
proceeding, it shall appear that the error complained
of has affected the substantial rights of the party
seeking to reverse or set aside the judgment, or to
secure a new trial.
Wis. Stat. § 805.18(2).

¶118 The majority here appears astonished that the circuit

court gave the following absent witness instruction:

If a party fails to call a material witness
within [its] control, or whom it would be more natural
for that party to call than the opposing party, and
the party fails to give a satisfactory explanation for
not calling the witness, you may infer that the
evidence which the witness would give would be
unfavorable to the party who failed to call the
witness.
Wis JI——Civil 410.

¶119 Kochanski requested the absent witness instruction.

Speedway opposed it. Judge Seifert supported his ruling as

follows:

Okay. Now I'll make my ruling:

Number one, all five were placed on the witness
list by Speedway;

3
 No. 2011AP1956.dtp

Number [t]wo, it does not appear that any effort
was made to subpoena any of those five;

Number three, as to Speedway's policy and
practices, current employees are capable of giving
that testimony and none of them have been subpoenaed,
either.

. . . .

And then [n]umber [f]our, I think that the jury
has a right to know what Speedway's policies are
regarding salting; and, particularly the videotape, at
least so far, has not shown whether or not the
premises or the area were salted before the accident.

For all of those reasons, the Court has decided
that Instruction 410 should be given.
¶120 The judge's reference to "all five" refers to the five

persons that Speedway named in response to Kochanski's request

in interrogatories to identify "each person you believe has

knowledge of the facts and circumstances surrounding the

accident." The five people Speedway submitted included the

former store manager, two former customer service

representatives, and two former food stewards. The names of

these people appeared on Kochanski's witness list as adverse

witnesses, but they also appeared on Speedway's witness list.

Speedway later explained to the jury that the former store
manager had "moved out of state" [Pennsylvania]. "We tried to

contact him . . . but were unable to do so." Three other

"former" employees were listed as having Milwaukee addresses;

one former employee lived in Waukesha. Speedway did not explain

why these "former" employees were not called, or why no current

employee at the store was called, except to say that "Speedway
is not going to be calling any witnesses from the store. . . .

4
 No. 2011AP1956.dtp

We don't need any testimony from the manager in this case. It's

all clear from the videotapes."

¶121 At trial, Speedway presented no live witnesses and no

witnesses at all on the issue of liability. With respect to

liability, Speedway relied on videotape from the store which was

introduced by the plaintiff.

¶122 To overturn the jury's verdict on the basis of the

absent witness instruction, the majority must determine, first,

that giving the instruction constituted an erroneous exercise of

discretion, and, second, that the "misdirection of the jury"

affected the substantial rights of Speedway. This is where the

troubling issues come in.

¶123 The majority finds that "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 . . . or that it was more natural for Speedway, rather

than Kochanski, to call them." Majority op., ¶2. The majority

also concludes that "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." Id.

¶124 A determination by the majority that "there was no

evidence in the record that the absent witnesses . . . were

material" is problematic. First, as stated in the majority
opinion and quoted above in paragraph 123, the majority's

5
 No. 2011AP1956.dtp

determination refers only to five former employees, not to the

former and current employees referred to by the circuit court.

Second, the determination that "there was no evidence in the

record" appears to be a finding of fact, directly at odds with

the determination of the circuit court.1 Third, the jury

instruction specifically refers to "a material witness," not

every witness who might be called. It must be remembered that

the defendant did not call any witnesses. Implicitly, then, the

majority is determining that there were no material witnesses

for Speedway to call——no former employees, no current employees,

no corporate executives, nobody at all who could provide

probative evidence on company policies on salting, snow removal,

and safety or what happened the morning and noon hour of

February 6, 2007 at the station. If Speedway had called even

one witness, the propriety of the absent witness instruction

would likely have been greatly diminished.

¶125 Speedway did not call anyone to explain company

policy, if any, and how that policy was executed that morning.
No one came to affirm that he or she had salted, swept, or

shoveled the sidewalk sometime that morning before the incident.

¶126 This, of course, might not have been necessary if

Speedway had produced videotape of some employee salting,

sweeping, or shoveling the affected area before the incident,

but it did not. The tape begins at 12:45 p.m. The incident

1
At the least, the determination fails to give proper
deference to the circuit court because the circuit court must
have determined that at least one person among Speedway's
current and former employees was a material witness.

6
 No. 2011AP1956.dtp

occurred at 12:54 p.m., nine minutes later. The jury did not

see any tape showing events before 12:45 p.m. Why? The tape

could have shown employees salting, sweeping, or shoveling the

raised sidewalk during the morning. Or not.

¶127 In addition, no employee came to boast that no one had

ever tripped on that raised sidewalk before February 6, or after

February 6. As a result, there was no one there who might have

had to acknowledge that several people had tripped at the same

spot——if any had——making clear visibility of the step even more

important.

¶128 This court does not know all the facts because the

jury was not given all the facts.

¶129 The majority asserts that there was "no evidence in

the record" that it was more natural for Speedway to call one of

its former employees than Kochanski. This is unpersuasive. All

the former employees had a past relationship with Speedway and

an interest in vindicating their own conduct when the accident

occurred. They had no relationship with Kochanski, who expected
them to be adverse. These potential witnesses were not neutrals

like the passenger on the bus in Thoreson v. Milwaukee &

Suburban Transp. Corp., 56 Wis. 2d 231, 237-38, 201 N.W.2d 745

(1972). Speedway was in a better position to assess whether its

former employees had relevant information than Kochanski was, in

part because Speedway had all the videotape. Speedway had an

even stronger relationship with its current employees and its

executives and the ability to determine whether any one of them

7
 No. 2011AP1956.dtp

would be a valuable witness. But it decided to offer no

witnesses.

¶130 Speedway could have given a persuasive argument why it

called no witness at the trial. It satisfactorily explained the

absence of the former manager, but it did not explain the

absence of anyone else, except to say, "It's all clear from the

videotapes."

¶131 It was not all clear from the videotapes because the

videotapes were not complete. They didn't start until mere

minutes before the incident. This is precisely the point that

the circuit court made in its fourth justification for the

instruction.

¶132 In short, the majority is second-guessing the circuit

court's decision to give the absent witness instruction in

several ways that are inappropriate.

¶133 Even if the absent witness instruction is deemed to be

an erroneous exercise of discretion, there should be no reversal

of the jury verdict unless there was prejudice affecting the
substantial rights of the defendant. This presents another

problem in the majority opinion.

¶134 If the majority had said, "the jury could not have

found that Kochanski satisfied the notice element of his safe-

place claim that was necessary to liability" without the absent

witness instruction, it would have been concluding that the

instruction permitted the jury to draw an inference from

evidence that was insufficient to support the inference. Such a

8
 No. 2011AP1956.dtp

conclusion would probably have required the court to dismiss the

case rather than send it back for a new trial.

¶135 The majority does something different. It concludes

that "the jury would not have found that Kochanski satisfied the

notice element of his safe-place claim that was necessary to

liability" without the absent witness instruction. Majority

op., ¶2 (emphasis added). This, however, is pure conjecture.

¶136 We task plaintiffs and defendants with putting forth

their best evidence so that the party with the stronger case

prevails. If a litigant's evidence is truly so scant that an

alleged erroneous jury instruction is necessary to lend

artificial credence to an insufficiently supported claim, we

should not give that litigant another chance. Perhaps,

confronted with the daunting standards of review, the majority

feels that it is fairer to send the case back for trial to see

if another jury will reach the same conclusion without the

absent witness instruction. The new trial will be a touchstone

for the majority's determination that there is insufficient
evidence to support the safe-place claim without the absent

witness instruction. Of course, the new trial will be skewed

because the defendant will have a second chance to put on

formerly absent witnesses so that these defense witnesses will

not be "absent" a second time.

¶137 For the foregoing reasons, I respectfully dissent.

9
 No. 2011AP1956.dtp

1