HANSEN v. CROWN CONTROLS CORP., 181 Wis.2d 673 (Ct.App. 1993)

512 N.W.2d 509

Court of Appeals of Wisconsin.
No. 92-3214.Oral argument October 21, 1993. —
Decided December 7, 1993.

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APPEAL from a judgment of the circuit court for Milwaukee county: MICHAEL J. BARRON, Judge Affirmed.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Ralph A. Weber, Brian G. Cahill, and Paul F. Heaton of Kravit, Gass Weber, S.C., of Milwaukee, and John C. Aisenbrey of Stinson, Mag Fizzell, of Kansas City, Missouri. There was oral argument by Ralph A. Weber.

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On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of James J. Murphy o Murphy, Gillick, Wicht Prachthauser, of Milwaukee. There was oral argument by James J. Murphy.

Amicus Curiae brief was filed by Lynn R. Laufenberg and Mark L. Thomsen of Cannon Dunphy, S.C., of Milwaukee, for the Wisconsin Academy of Trial Lawyers. There was oral argument b Lynn R. Laufenberg.

Amicus Curiae brief was filed by Jon P. Christiansen
and James L. Huston of Foley Lardner, of Milwaukee, for Product Liability Council, Inc., and Wisconsin Manufacturers Commerce. There was oral argument by James L. Huston.

Before Sullivan, Fine and Schudson, JJ.

FINE, J.

Crown Controls Corporation and International Insurance Company, Crown’s excess-liability insurer, appeal from a judgment against them. The judgment was entered on a jury verdict awarding damages to the plaintiffs for injuries sustained by Mark L. Hansen when the dockboard on which he was driving a forklift truck collapsed. Crown, which manufactured the forklift truck, asserts that the trial court erred: (1) in formulating its jury instructions and the special verdict; (2) by not ordering a new trial because of alleged juror misconduct; and (3) by not ordering a new trial because of the alleged perverse nature of the verdict. We affirm.[1]

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I.
A dockboard is a metal plate that bridges the gap between a loading dock and a truck trailer so that goods may be moved between the loading dock and the trailer. Hansen was injured when the dockboard involved in this case collapsed. The forklift truck he was operating at the time required the operator to stand rather than sit. When the dockboard collapsed, the forklift tumbled off. Hansen’s left leg, which did not remain within the safety of the cab compartment, was crushed by the falling forklift. The plaintiffs claimed that Crown was at fault because the forklift cab did not have a door, which, they argued, would have protected Hansen’s leg from injury.[2]

The trial court accepted plaintiffs’ argument that the damage to Hansen’s leg should be treated as an “enhanced injury” that was distinct from the injuries that he received from the fall alone. Accordingly, the trial court, over Crown’s objections, instructed the jury that if it determined that Crown and either of the parties responsible for the dockboard were at fault in connection with their products, the jury should decide the percentage each party’s fault contributed to the so-called “enhanced injury,” the injury to Hansen’s leg.[3]

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Although the jury determined that both of the parties responsible for the dockboard were at fault, the jury found that Crown alone was responsible for Hansen’s leg injury.

II.
A. “Enhanced Injury” Theory.

Crown argues that by submitting to the jury plaintiffs’ “enhanced injury” theory, the trial court improperly “prevented an allocation of fault among all substantial factors leading to [Hansen’s] injuries.” Crown’s contentions of error are without merit.

A jury’s specific apportionment of causation for separately-produced injuries makes sense and is consistent with Wisconsin law.

Liability based on enhanced injury has been recognized in Wisconsin cases, . . . . These include second collision or crashworthiness cases, seat-belt cases, and successive tort-feasors in medical malpractice cases. In all these situations, the successive tort-feasor was alleged to have enhanced or aggravated the plaintiff’s injuries, but was not alleged to have caused the initial accident or damage. In these situations, the successive tort-feasor is not jointly liable for all the injuries to the claimant, but only for those injuries caused by the tortious conduct over and above the damage or injury that would have occurred as a result of the accident absent the successor tort-feasor’s conduct.

Farrell v. John Deere Co., 151 Wis.2d 45, 60-61, 443 N.W.2d 50, 54-55 (Ct.App. 1989) (footnotes omitted).

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In Farrell, the plaintiff was first injured when his arm was drawn into a corn picker. Id., 151 Wis.2d at 56, 443 N.W.2d at 53. Farrell’s legs and other arm were then pulled into the machinery. Ibid. In his action against Deere, the manufacturer of the corn picker, Farrell claimed two separate mechanisms of injury. First, he claimed that Deere’s failure to equip the corn picker with an interlock device caused his initial entanglement Id., 151 Wis.2d at 57, 443 N.W.2d at 53. Second, he claimed that the injuries to his legs and other arm were caused by Deere’s failure to outfit the picker with a device that would stop the machine in an emergency. Ibid. Over Deere’s objection that there was but one occurrence, the trial court permitted the jury to consider the legs-and-other-arm claim, the so-called “enhanced-injury” claim, separately from Farrell’s entanglement claim. Id., 151 Wis.2d at 61, 443 N.W.2d at 54. This allowed the jury to compare Farrell’s contributory negligence with Deere’s fault on each claim, rather than as to the occurrence as a whole Id., 151 Wis.2d at 57-58, 443 N.W.2d at 54-55. We affirmed, seeing “no reason in logic or law why application of enhanced injury law should be precluded merely because the successive tort-feasor is alleged also to have tortiously caused the initial accident.” Id., 151 Wis.2d at 62, 443 N.W.2d at 55.[4]

A defendant is not liable for its negligence unless that negligence was a substantial factor in producing plaintiff’s injury as a natural and probable consequence.

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See Johnson v. Misericordia Community Hosp., 97 Wis.2d 521, 561, 294 N.W.2d 501, 521 (Ct. App. 1980) (“[O]ne who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences of an act although an act of a third person contributes to the result.”), aff’d, 99 Wis.2d 708, 301 N.W.2d 156 (1981). Stated another way, although in a metaphysical sense all things have a cause, the “substantial factor” test denotes something more, namely, “that the defendant’s conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.” Merco Distrib. Corp. v. Commercial Police Alarm Co., Inc., 84 Wis.2d 455, 458-459, 267 N.W.2d 652, 654 (1978); see also Austin v. Ford Motor Co., 86 Wis.2d 628, 639, 273 N.W.2d 233, 237-238 (1979) (reason for one-car accident not necessarily “cause” of driver’s death resulting from accident).

This case, even more than Farrell, concerns separate acts of alleged tortious conduct — the acts of the parties responsible for the dockboard were separate from anything Crown did or failed to do in connection with the forklift truck. Although it is true that if the dockboard had not collapsed, Hansen’s leg would not have been injured, the jury was appropriately told that it could not find that the fault, if any, of those responsible for the dockboard was a “substantial factor” in causing Hansen’s leg injury unless Crown proved “to a reasonable certainty, by the greater weight of the credible evidence” that the fault “had a substantial influence in producing” that injury. See Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 354-359, 360 N.W.2d 2, 9-11 (1984) (not plaintiff’s burden to

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prove what his injuries would have been if defendant was without fault).[5] Crown had ample opportunity to persuade the jury that the dockboard collapse was a substantial factor (as opposed to an in substantial factor) in Hansen’s leg injury. It failed.[6] The trial court’s

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decision to permit the jury to decide that issue is consistent with the law in this state.[7]

In an argument related to its contention that the trial court should not have submitted the case to the jury on an “enhanced injury” theory, Crown suggests that the wording of the trial court’s instructions required the jury to find, in effect, that the fault of those responsible for the dockboard was not a cause of Hansen’s leg injuries. As pertinent to this argument, the trial court instructed the jury:

The Hansens allege that Crown was negligent and put into the commerce stream an unreasonably dangerous defective forklift. They further allege that this negligent conduct was a substantial factor in causing Mr. Hansen’s injuries to be far greater or enhanced than they would have been had Crown not been negligent. These allegations are all denied by Crown.
The burden of proof on these allegations is upon the Hansens to convince you to a reasonable certainty by the greater weight of the credible evidence

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that “yes” should be your answers as to questions one through four.[8]
Conversely, Crown alleges that others were, responsible for these enhanced injuries to Mr. Hansen. Specifically, Crown asserts that the dock board [sic] was an unreasonably dangerous, defective product and that [those responsible for the dockboard], [Hansen’s employer] and/or Mark Hansen were negligent and that their respective negligent conducts were singularly or jointly substantial factors in causing Mr. Hansen’s injuries to be far greater or enhanced than they would have been had the respective inquiree not been negligent. These allegations are all denied by the Hansens.
The burden of proof on these allegations is upon Crown to convince you to a reasonable certainty by the greater weight of the credible evidence that “yes” should be your answers as to questions five through fourteen.[9]

The damage questions in the verdict form submitted to the jury by the trial court similarly focussed only on the so-called “enhanced injuries” sustained by Hansen.

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Crown had requested jury instructions and a special verdict that focussed on Hansen’s “injuries” as a whole. Thus, at the hearing during which the trial court and the parties summarized the instruction conference, Crown argued that the jury should be “simply asked to apportion responsibility among all persons and entities who were substantial factors in bringing about Mr. Hansen’s injuries of whatever kind and nature.”[10] The plaintiffs, on the other hand, suggested dividing the jury’s task into two parts. The pivotal causation question as proposed by the plaintiffs asked:

Assuming Mark Hansen’s total injuries and damages to be 100 percent, what percentage of these injuries and damages do you find:

A. To be caused by the falling of the forklift from the dockboard. . . % _____%
B. To be enhanced or increased due to the lack of adequate occupant protection on the forklift so as to reduce the extent or severity of injuries in the event of an accident. _____%

TOTAL 100%

Following the instructions conference, the plaintiffs submitted a modified proposed special-verdict form that similarly separated the event into questions that asked about the cause of the accident on one hand and the cause of Hansen’s enhanced injuries on the other hand, and, in the critical apportionment question,

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asked the jury to determine what “percentage of the total negligence that caused enhanced injuries to Mark Hansen do you attribute to A. The accident? B. Crown Equipment?”[11]

Although in retrospect, as Crown argues on this appeal, the trial court’s instruction asking the jury to determine whether the fault of those responsible for the dockboard was a substantial factor “in causing Mr. Hansen’s injuries to be far greater or enhanced than they would have been” if those responsible for the dockboard had not been at fault can be read as focussing too much on the enhanced injuries, the record does not reveal that Crown objected on this ground or that it adopted either of plaintiffs’ proposals, both of which would have ameliorated this problem. Indeed, when

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the plaintiffs objected that there was insufficient evidence “that anything [those responsible for the dockboard] did or sold . . . caused [Hansen’s] enhanced injuries,” Crown disagreed: “As we discussed in chambers, there was evidence . . . with respect to the way in which the absence of panic stops [on the dockboard] enhanced the injury even under the enhanced injury approach adopted by plaintiffs.” The instructions and verdict proposed to the trial court by Crown improperly lumped all of Hansen’s injuries into one apportionment pot. Crown was not a joint tortfeasor with those responsible for the dockboard in connection with those of Hansen’s injuries that were not caused by the forklift, and an apportionment of causal fault with regard to those injuries would have been improper. See Butzow v. Wausau Memorial Hosp., 51 Wis.2d 281, 288-289, 187 N.W.2d 349, 352-353 (1971) (physician who treats negligently a person injured in an automobile accident not a joint tortfeasor with the person who caused accident) see also Farrell, 151 Wis.2d at 60-61, 443 N.W.2d at 55.[12] Thus, Crown did not state with sufficient particularity its current objection to the trial court’s jury instructions and verdict as required by Rule 805.13 (3), Stats.[13] As reiterated in State v. Gomaz, 141 Wis.2d 302, 321, 414 N.W.2d 626, 635

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(1987): “`The objection should be specific — it should not only identify the particular instruction or instructions objected to, but should also state what counsel contends is the proper instruction.'” (citation omitted). Accordingly, the issue has been waived.[14]

B. Instructions on Failure to Warn.

The trial court instructed the jury in connection with both the negligence and strict-liability claims that a manufacturer has a duty to “provide warnings concerning any dangerous condition of the product or any danger connected with its proper use of which [the manufacturer] knows or should know.” Crown claims that there was no evidence to support these instructions. We disagree.

Plaintiffs’ engineering expert testified that although Crown’s sit-down forklift trucks came with warnings that if the truck tipped over the operators were to, as phrased by the expert, “remain with the forklift, to brace themselves, to lean forwards, to keep their body inside the confines of the protective zone

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enclosure of the forklift,” the stand-up forklift truck involved in Hansen’s accident did not. The witness told the court and jury that “the absence of specific warnings and instructions telling the operator what to do in the event of either a collision or tipover” made the forklift truck defective and unreasonably dangerous as well as negligently designed, and that this was a cause of Hansen’s enhanced injuries. The trial court’s instructions were consistent with the facts of the case and the applicable legal principles.[15] See Meurer v. ITT Gen. Controls, 90 Wis.2d 438, 448-449, 280 N.W.2d 156, 160
(1979) (a trial court’s instructions to jury will be upheld

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if consistent with facts of the case and applicable legal principles).

C. Alleged Juror Misconduct.

Crown seeks a new trial because two jurors used a weekend break in the jury’s deliberations to look up various terms in dictionaries. One juror, Susan Hoeppner, submitted an affidavit to the trial court, and later testified at the hearing on post-verdict motions, admitting that she prepared a list of definitions for the words: “defective,” “defect,” “faulty,” “neglect,” and “negligent,” from her Random House dictionary. Hoeppner testified that she distributed her list of definition excerpts to all of the jurors, and “as far as [she knew], they read it.” The other juror, the foreman, testified that he looked up the words “enhanced” and “injury,” and shared them with the other jurors. He did not testify, however, as to what he told them. The plaintiffs submitted affidavits from two other jurors. One stated that “most of the jurors” did not read Hoeppner’s list of definitions. The trial court concluded that the juror’s independent research was not prejudicial, noting that the jurors “had a full set of instructions in the jury room with them” for approximately “five hours and 15 minutes” on Friday, the first day of deliberations, before Hoeppner brought in her list of definition excerpts on Monday, after the weekend break.

Rule 906.06 (2), Stats., provides that a juror may testify, either in person or by affidavit, “on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on any juror.” Thus, it was appropriate for the trial

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court to hold a hearing. See Castaneda v. Pederson, 176 Wis.2d 457, 463, 500 N.W.2d 703, 706 (Ct.App. 1993) review granted, 177 Wis.2d cxlvii, 505 N.W.2d 137
(1993). As we have previously noted:

A party seeking to impeach a jury verdict in a civil case with evidence of juror-misconduct must clear three hurdles. First, the proffered evidence must be competent under Rule 906.06(2), Stats. Second, the proffered evidence must be “clear and convincing.” Third, the competent evidence must show by the “clear and convincing” standard that the moving party was prejudiced[ — ]not in an analysis of the jurors’ subjective thought processes, because that inquiry is forbidden by Rule 906.06(2), but, rather, “`on the basis of the nature of the matter and its probable effect on a hypothetical average jury.'”

Ibid. (citations omitted). We review de novo the trial court’s conclusion that a new trial is not warranted Id., 176 Wis.2d at 463, 500 N.W.2d at 705.

Although Crown’s submissions through juror testimony and affidavits establish that at least some of the jurors were exposed to extraneous material, Crown has not carried its burden of proving prejudice by the “clear and convincing” middle burden of proof. First, the record does not reveal what definitions of the words “enhanced” and “injury” the foreman shared with the jury. Thus, Crown has not demonstrated that those definitions were prejudicial to it. Second, although the trial court made no findings of fact on this point, the uncontradicted evidence in the record is that although Hoeppner made copies of her definition excerpts for all of the jurors, and, as far as she knew, they read what she distributed, not all the jurors did. Thus, her affidavit and testimony were not competent to impeach the

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jury’s verdict. See State v. Messelt, 178 Wis.2d 320, 336-339, 504 N.W.2d 362, 368-369 (Ct.App. 1993) (Rule 906.06 (2), Stats., does not permit a juror to testify whether “extraneous prejudicial information” was brought to the attention of jurors, unless it was brought to the attention of all the jurors) (withdrawing a statement to the contrary in State v. Barthels, 166 Wis.2d 876, 892-893, 480 N.W.2d 814, 821-822 (Ct.App. 1992), aff’d on other grounds, 174 Wis.2d 173, 495 N.W.2d 341 (1993)), review granted, 179 Wis.2d 173, 495, 510 N.W.2d 136 (1993). Accordingly, the trial court’s decision not to order a new trial because of alleged juror misconduct is affirmed.

D. Alleged Perverse Verdict.

Crown claims that the verdict’s award was excessive and that this resulted from improper argument by plaintiffs’ trial counsel.[16] We discuss these issues in turn.

1. Alleged excessiveness of award. The jury awarded to Hansen the following:

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Pain, suffering, disability, and disfigurement to the date of trial ………………….. $250,000
Future pain, suffering, disability, and disfigurement ………………………… $750,000

Future medical and hospital expenses 59,122

Loss of earning capacity to the date of

Future loss of earning capacity …………. 197,119

The jury awarded $450,000 to Hansen’s wife for loss of consortium, and $200,000 to Hansen’s daughter for loss of society and companionship.[17] The trial court reduced this latter amount to $100,000.

Other than reducing the award to Hansen’s daughter, the trial court sustained the damage awards. Our scope of review is thus exceedingly narrow: we must sustain the awards if “there is any credible evidence that under any reasonable view supports” them. Coryell v. Conn, 88 Wis.2d 310, 315, 276 N.W.2d 723, 726
(1979). A damage award that has the trial court’s approval may not be reversed unless “there is such a complete failure of proof that the verdict must be based on speculation.” Ibid.

Crown argues that the award “exceed[ed] $2,000,000, a verdict range normally associated with quadriplegia or severe brain injury cases.” The jury’s award to Hansen for his past and future pain, suffering, disability, and disfigurement, however, was $1,000,000. Given the evidence that his leg bones were

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crushed into so many pieces that the emergency room physician testified that they could not be counted, that Hansen required nine surgeries, that he ultimately had to have his knee fused and re-fused, that he currently has implanted bone plates that extend from four inches above his knee to four inches below his knee, and that as a result of all this his left leg is two and one-half inches shorter than his right leg, it cannot be said that the award was, in the words of Coryell, “based on speculation.” Further, Crown does not even argue how or why the jury’s breakdown of the other, hard-figure awards to Hansen are not supported by the evidence, or how the remaining awards (as modified by the trial court) to Hansen’s wife and daughter were not reasonable. Crown’s undeveloped argument that the awards are excessive will not be considered further. See W.H. Pugh Coal Co., 157 Wis.2d at 634, 460 N.W.2d at 792
(appellate court may decline to consider issue that is not sufficiently developed).

2. Alleged misconduct by Hansen’s trial counsel. Crown claims that Hansen’s trial counsel made several improper arguments during his summation to the jury.

a. Crown contends that Hansen’s trial lawyer made an improper argument when he asked the jury rhetorically: “Who speaks for the Mark Hansens of the world?” Crown did not, however, object at the time nor does the record reflect that it made a motion for a new trial on the basis of this statement before the jury returned its verdict. Any objection to the statement was, accordingly, waived. See State v. Goodrum, 152 Wis.2d 540, 549, 449 N.W.2d 41, 46 (Ct.App. 1989) (“Failure to object at time of the alleged improprieties in the closing argument . . . waives review of that

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alleged error. Additionally, a [party] must move for a mistrial to preserve the alleged error for appeal.”) (citations omitted).

b. Crown asserts that Hansen’s trial lawyer made an improper argument about the alleged reluctance of some manufacturers to make their products safe:

I don’t know if any of you remember when forklifts did not have overhead protection. People were conked on the head, broken neck [sic], brains knocked out.
You can see one of their pictures. The old time truck. That’s the way it used to be, and those manufacturers wanted it that way. You don’t think they came forward and said, hey, let’s start making protective guards.

They had to be dragged kicking and screaming

—

Crown objected, and protested to the trial court: “This is a punitive damages argument about other manufacturers. Crown has never done any of these things.” The trial court responded “I agree,” and Hansen’s counsel continued without interruption as follows: “Let’s talk about the stand-up truck then. . . .” Crown later made a motion for a mistrial, which was denied. Whatever improper import Hansen’s argument about what other manufacturers might have done in the past, however, was effectively cured by trial court’s agreement with Crown’s objection.

c. Crown also objected when Hansen’s trial counsel asked the jury to consider why Crown had not produced for trial the persons who designed the forklift truck:

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[Hansen’s trial counsel]: You know — Come on. Here is [sic] the designers of this truck. Wouldn’t you want to hear from them? Where are they? They are back in New Bremen. One guy is on vacation.
So I ask you to evaluate Crown Company as to how sincerely can they really want you to be educated to make your decisions if they are afraid to bring in the very people who designed this truck.
[Crown’s trial counsel]: Your Honor, I think it’s improper — This is the missing witness instruction. He’s got the depositions. He could have read anything he wants.

[Hansen’s trial counsel]: Well, they are not here. . . . You ought to think about this and the verdict. It’s going to go a long way in telling the people who make these trucks how they are supposed to conduct themselves in the future.
[Crown’s trial counsel]: Your Honor, this is improper.

A trial’s search for the truth is predicated on a jury’s ability to assess the credibility of the various witnesses. Thus, the rules of evidence favor in-court testimony. See Rule 908.02, Stats. (hearsay generally not admissible); United States v. Inadi, 475 U.S. 387, 394-395 (1986). The official Federal Advisory Committee’s Note accompanying the Federal Rules of Evidence explains why:

The factors to be considered in evaluating the testimony of a witness are perception, memory, and narration. Sometimes a fourth is added, sincerity,

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but in fact it seems merely to be an aspect of the three already mentioned.
In order to encourage the witness to do his best with respect to each of these factors, and to expose any inaccuracies which may enter in, the Anglo-American tradition has evolved three conditions under which witnesses will ideally be required to testify: (1) under oath, (2) in the personal presence of the trier of fact, (3) subject to cross examination.

Federal Advisory Committee’s Note to Article VIII of the Federal Rules of Evidence, reprinted at 59 Wis.2d R221-222 (citations omitted). See also 4 J. Weinstein
M. Berger, WEINSTEIN’S EVIDENCE, ¶ 800[01] at 800-10 to 800-13 (1993). Although the trial court agreed with Crown’s objection, we conclude that Hansen’s trial counsel was well within the ambit of proper argument when he asked the jury to ponder why the designers were not brought in as live witnesses so the jury could assess their credibility by personal observation, even though a “missing witness” instruction might not have been appropriate. See Ballard v. Lumbermans Mut. Cas. Co., 33 Wis.2d 601, 616, 148 N.W.2d 65, 73-74
(1967) (failure by trial court to give a “missing witness” instruction did not prejudice party when it was permitted to argue issue to jury); see also Feldstein v. Harrington, 4 Wis.2d 380, 388-390, 90 N.W.2d 566, 571-572 (1958) (proper for party to argue “missing witness” issue when opposing party does not call “a material witness within his control”).

d. Crown’s most serious charge against Hansen’s trial counsel was that he made a “golden rule” argument, which has been long-condemned. See Rodriguez v. Slattery, 54 Wis.2d 165, 170, 194 N.W.2d 817, 819
(1972) (reproving attorney’s request to jurors that they

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consider “[i]f it was your seven-year old” in assessing appropriate damages). The following is the statement by the Hansen’s lawyer, and the resulting colloquy:

Now, let’s talk about those things. There is no one in the world, certainly no one in this jury, who has not suffered something that was pretty bad or had someone close to them suffer.
[The trial court]: It’s not proper to put the jurors in the same position as the plaintiff.
[Hansen’s trial counsel]: I wasn’t doing that, Your Honor. I don’t intend to. I’m not asking you to judge this on your own feelings. You must judge this on the evidence that pertains to them.
I’m only saying everyone suffers bad things, and in some respect [sic] Mr. Hansen is glad to be alive.

The trial court was swift and, in our view, effective in its sua sponte correction of counsel, who, in our opinion, had not yet reached the point of improper comment. Reversal on this ground is not warranted.

e. Crown also argues that plaintiffs’ trial counsel again ventured into the forbidden “golden rule” area later in his argument when, in discussing the damages to be awarded to Hansen’s daughter, he said:

And when we are injured and when our lives are changed, so are the lives of the people around us. And the judge will give you instructions about how her life and her interests are at stake here too and she must be considered in your award.

Crown did not contemporaneously object to this statement. Any objection to the statement was, accordingly,

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waived. See Goodrum, 152 Wis.2d at 549, 449 N.W.2d at 46.

f. Finally, Crown’s brief on appeal charges that:

[P]laintiffs’ counsel deliberately misled the jury as to why [those responsible for the dockboard] were not at trial. Crown made numerous requests during trial for permission to tell the jury that these defendants had settled, which requests were denied. Plaintiffs’ counsel then told the jury in closing:
[Plaintiffs’ attorney] “And let me point out that since the issue here was not who caused the accident those people did not appear . . . in this trial.”

(Ellipses in Crown’s brief.) The transcript, however, reports the statement of plaintiffs’ counsel as follows:

And let me point out that since the issue here was not who caused the accident those people did not appear importantly in this trial.

(Emphasis added.) The word “importantly,” omitted from the quotation in Crown’s brief, significantly changes the meaning of the sentence. Although during the course of the hearing on post-trial motions, Crown indicated that it did not believe the word was actually said, the court reporter’s transcript is the official record in this case. See SCR 61.09; 71.03; and sec. 889.11, Stats. Crown’s remedy was in a motion to correct the record, not ellipses. The statement, as recorded in the

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record, was accurate — everyone conceded that Crown did not cause the accident. The major emphasis by both parties at trial was on whether Crown was negligent, whether the forklift truck it manufactured was unreasonably dangerously defective, and whether that negligence or defect was a cause of Hansen’s leg injuries. As the trial court pointed out during the hearing on post-verdict motions, Crown’s trial strategy did not focus on those responsible for the dockboard. See supra
note 6. Crown’s claim of error, or prejudice is without merit.

By the Court. — Judgment affirmed.

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