One of the supreme court’s recently issued decision should prove helpful in defending against slip-and-fall cases, especially those that are alleged to be the result of snow and ice. See Kochanski v. Speedway SuperAmerica, 2014 WI 72. While the Kochanski decision was prompted by an erroneous use of the absent witness jury instruction, the court’s analysis necessarily required an application of its rationale to the facts: a plaintiff who slipped and fell on snow as he walked into a convenience store. The result is a decision full of useful points about what types of evidence will and will not support a Safe Place claim under Wis. Stat. § 101.11. Especially in cases relying on constructive notice, this decision should help solidify defenses when a plaintiff offers nothing more than weather records or evidence of post-fall remedial measures.
In Kochanski, the plaintiff requested and was given the absent witness instruction because Speedway relied only on surveillance video and did not call any former employees as witnesses. The absent witness instruction 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. Kochanski’s attorney used the instruction to argue that Speedway didn’t call any witnesses because the testimony would have been unfavorable. He asked, “Why didn’t [Speedway] call anybody? What would that unfavorable testimony have been? Other evidence that’s missing in this case.” ¶ 7. The jury returned a verdict in favor of Kochanski.
On appeal, Speedway argued that the circuit court erroneously gave the absent witness instruction, and the court of appeals and the supreme court both sided with Speedway. In its analysis, the supreme court discussed the implications of a lack of evidence in support of claims of negligence and of violation of the Safe Place Statute. The court said there was no indication in the record that any current Speedway employees could provide information about the store’s snow removal methods, and the plaintiff did not establish that Speedway had any control over its former employees. Furthermore, Speedway provided the employees’ names and addresses to Plaintiff, but Plaintiff 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.” ¶ 26.