State Supreme Court Rules Trial Court Erred

In a 4-3 decision authored by Justice Roggensack, the Wisconsin Supreme Court held that a trial court’s decision to give the absent witness instruction was erroneous and remanded the case to the circuit court. Joining in the opinion were Justices Crooks, Gableman, and Ziegler,

Justice Bradley authored a dissenting opinion that was joined by Chief Justice Abrahamson. Justice Prosser also authored a dissenting opinion. The case is Kochanski v. Speedway Super America, 2014 WI 72.


The case involves a lawsuit by James Kochanski against Speedway when he suffered injuries resulting from a fall outside one of Speedway’s convenience stores. After filling his vehicle with gas, Kochanski walked to the store to pay. It was snowing that day and there was approximately two inches of snow on the ground. As Kochanski approached the curb on the walkway leading to the store entrance, which was painted yellow, he noticed snow covering a portion of the sidwalk. Kochanski did not see any yellow in front of him so he thought the curb had been cut out or was a wheelchair access point. However, the wheelchair access was four to five feet to the side of the entrance.

Kochanski tripped and fell on the curb, breaking his arm and injuring his wrist. This was all caught on Speedway’s surveillance video. Kochanski sued Speedway for negligence and for violation of Wisconsin’s Safe Place Statute (Wis. Stat. § 101.11).

As the case went to trial, Kochanski’s attorney offered into evidence Speedway’s interrogatory responses indicating that there were five Speedway employees working when Kochanski fell. Speedway did not call any witnesses at trial, but instead offered into evidence the store video surveillance.

Kochanski then requested the trial court give a jury instruction (Wis JI—Civil 410), commonly referred to as the “absent-witness” instruction. This injury instruction states:

If a party fails to call a material witness within (his) (her) 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.

During closing argument, Kochanski’s attorney commented that Speedway did not call any witnesses and suggested that it was withholding information from the jury. The jury determined that Speedway was negligent in failing to maintain its premises and found that Kochanski was not negligent. Speedway appealed the decision.

Court of Appeals Decision

The Court of Appeals reversed the circuit court and held that the trial court erroneously gave the jury instruction. The court held that the plaintiff failed to show that the uncalled witnesses (Speedway’s former employees) were not material or within Speedway’s control, and therefore the trial court’s decision to give the jury instruction was prejudicial error.

Wisconsin Supreme Court Decision

The Wisconsin Supreme Court affirmed the Court of Appeals and held that the circuit court’s decision to give the absent witness instruction was erroneous. Specifically, the Supreme Court held:

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 [the plaintiff] 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.”

In addition, the Supreme Court determined that the jury 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 [the plaintiff] satisfied the notice element of his safe-place claim that was necessary to liability.”

The case was remanded to the circuit court for a new trial.