*This case is recommended for publication.

In Pennell v. American Family Mutual Insurance Co. (2019AP170), the Court of Appeals District II held that the jury in this personal injury case did not receive proper instructions on causation and pre-existing conditions and awarded the plaintiff a new trial.

Monica Pennell was injured in a car accident. Pennell alleged that another person in the accident, Carmella Covelli, was a cause of the accident, and that accident caused Pennell’s injuries. After receiving no damages for future pain and suffering at the circuit court trial, Pennell appealed on the grounds that the circuit court erroneously denied her requested jury instructions.

The appeals court agreed with Pennell that the jury should have been instructed according to WIS JI—CIVIL 1500 because the case involved disputes about what caused the accident and what caused Pennell’s injury. At trial, the jury was only instructed to determine whether Covelli caused the accident, and the instructions did not reference whether the accident caused Pennell’s injuries. Instructions in WIS JI—CIVIL 1500 would have taken into account both causation of the accident and causation of the injury.

The appeals court also agreed that the jury should have been given instructions related to consideration of aggravation of pre-existing conditions when assessing damages (WIS JI—CIVIL 1720). In this case, there was a dispute between the parties as to whether Pennell’s headaches were a pre-existing condition or whether they were aggravated by the accident. The appeals court said this issue was a question that the jury should have decided and about which the jury should have received instruction.

Overall, the court said the outcome of the trial could have been different if the jury had received the proper instructions, so Pennell was awarded a new trial.