DeEtte Fankhauser v. Curtis D. Hestad

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 7, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP110 Cir. Ct. No. 2016CV232

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

DEETTE FANKHAUSER AND ERNEST “PAT” FANKHAUSER,

PLAINTIFFS-RESPONDENTS,

V.

CURTIS D. HESTAD AND ALLIED WASTE SERVICES OF
NORTH AMERICA, LLC,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Barron County:
JAMES C. BABLER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP110

¶1 PER CURIAM. Curtis Hestad and Allied Waste Services of North
America, LLC, appeal a judgment, entered upon a jury’s verdict, awarding
damages to DeEtte and Ernest “Pat” Fankhauser for the destruction of a bridge on
the Fankhausers’ property. Hestad and Allied argue the circuit court erred
by: (1) dismissing their counterclaims against the Fankhausers; (2) failing to
direct a verdict in their favor on the Fankhausers’ negligence claim; (3) failing to
reduce the jury’s damages award; (4) limiting Hestad and Allied’s
cross-examination of the Fankhausers; (5) failing to exclude the opinion of the
Fankhausers’ damages expert; and (6) failing to include separate questions on the
special verdict for different categories of damages. We reject each of these
arguments and affirm.

BACKGROUND

¶2 The Fankhausers own a two-parcel property located on 20½ Avenue
in Cumberland, Wisconsin. Pat operates a farm and a livestock hauling business
on the property, and the Fankhausers also reside there. There are two entrances to
the Fankhausers’ property from 20½ Avenue. The west entrance is a long
driveway that leads to a barn after passing in front of a modular home occupied by
the Fankhausers’ son, his fiancée, and the Fankhausers’ grandson. The east
entrance leads to the Fankhausers’ residence. The west entrance can also be used
to access the Fankhausers’ residence, but the east entrance provides a more direct
route.

¶3 Prior to November 19, 2015, in order to reach the Fankhausers’
residence via the east entrance, a person was required to travel over a steel truss
bridge on the Fankhausers’ property that passed over the Yellow River. The
bridge was constructed in 1905 and was originally part of Highway 48, which was

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later rerouted. The Fankhausers purchased the parcel of property containing the
bridge in approximately 1974.

¶4 Allied is a business that hauls and processes garbage. The
Fankhausers were longtime customers of Allied. As early as 2005, the
Fankhausers told Allied that its drivers should not use the east entrance to their
property. An internal document from Allied regarding the Fankhausers’ account
dated September 1, 2005, contains the notation: “DON’T CROSS BRIDGE
ENTER ON WE ST [sic] SIDE.”

¶5 On November 19, 2015, Allied sent Hestad—one of its employees—
to collect garbage along a route that included the Fankhausers’ property. Hestad
was an experienced driver, but he had never collected garbage from the
Fankhausers’ property before. He had with him a “route sheet,” which provided
instructions regarding the various stops along his route. The route sheet contained
the following instructions regarding the Fankhausers’ property: “USE WEST
DRIVE-[DRIVE IN] SLOW!!!!!!! POLES W/ WAGON WHEELS OVER
DRIVE. CONTAINER SITS NEAR BARN.”

¶6 After completing the stop on his route prior to the Fankhausers’
property, Hestad entered the Fankhausers’ address into his truck’s GPS and
followed the directions it provided. When Hestad reached 20½ Avenue, he did not
know whether he was traveling east or west, nor did he know that there were two
entrances to the Fankhausers’ property. He simply saw that he had arrived at an
entrance that was marked with the Fankhausers’ address and had wagon wheels
overhead on poles. He therefore proceeded onto the Fankhausers’ property using
that entrance. However, unbeknownst to Hestad, both entrances to the property
were marked by poles with wagon wheels, and he had actually arrived at the

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property’s east entrance, rather than the west entrance specified by the route sheet.
After entering the property through the east entrance, Hestad drove onto the
bridge, which collapsed under the weight of his truck.

¶7 The Fankhausers subsequently filed this lawsuit against Hestad and
Allied, asserting the bridge had collapsed as a result of their negligence. Hestad
and Allied answered the Fankhausers’ complaint and asserted counterclaims for
negligence and for violation of the safe place statute. The Fankhausers then
moved for summary judgment on the counterclaims, asserting the undisputed facts
showed that Hestad was a trespasser on the bridge at the time it collapsed. The
Fankhausers therefore argued that they did not owe Hestad a duty of ordinary care
and that the safe place statute was inapplicable to him. The circuit court agreed
with the Fankhausers and granted them summary judgment on the counterclaims.

¶8 The Fankhausers’ negligence claim against Hestad and Allied was
ultimately tried to a jury. After both sides rested, Hestad and Allied moved for a
directed verdict, arguing the Fankhausers had failed to prove their damages
because there had been “no testimony or other evidence in terms of a number for
the value of the bridge.” The circuit court denied their motion. The jury then
unanimously found that both Hestad and Allied were causally negligent, and it
awarded the Fankhausers $500,000 in damages.

¶9 Hestad and Allied filed motions after verdict, in which they argued
that: (1) the circuit court should reduce the damages awarded by the jury,
pursuant to WIS. STAT. § 805.15(6) (2017-18);1 (2) the court should change the

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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jury’s damages answer to zero under WIS. STAT. § 805.14(5)(c), or should order a
new trial under § 805.15(1), because there was insufficient evidence to support an
award of damages; and (3) in the alternative, the court should order a new trial
under § 805.15(1) based evidentiary errors. The court denied Hestad and Allied’s
motions after verdict and entered judgment in favor of the Fankhausers. Hestad
and Allied now appeal.

DISCUSSION

I. Dismissal of Hestad and Allied’s counterclaims

¶10 On appeal, Hestad and Allied first argue that the circuit court erred
by granting the Fankhausers summary judgment on Hestad and Allied’s
counterclaims. We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” WIS.
STAT. § 802.08(2).

¶11 In this case, Hestad and Allied asserted counterclaims for negligence
and for violation of the safe place statute. The circuit court concluded the
Fankhausers were entitled to a judgment as a matter of law on those counterclaims
because the undisputed facts established that Hestad was a trespasser at the time
the bridge collapsed. A landowner is not ordinarily liable to trespassers “for the
failure to exercise ordinary care to put his land in a safe condition.” Antoniewicz
v. Reszcynski, 70 Wis. 2d 836, 842, 236 N.W.2d 1 (1975). Instead, “in respect to
a trespasser, the owner of land has only the duty to refrain from wil[l]ful and

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intentional injury”—neither of which Hestad and Allied have alleged here. See id.
In addition, the safe place statute “does not protect one who is merely a
trespasser.” McNally v. Goodenough, 5 Wis. 2d 293, 300, 92 N.W.2d 890 (1958).

¶12 Thus, the dispositive issue for purposes of the Fankhausers’
summary judgment motion was whether the undisputed facts showed that Hestad
was a trespasser at the time of the collapse. A “trespasser” is “a person who enters
or remains upon land in the possession of another without a privilege to do so
created by the possessor’s consent or otherwise.” Antoniewicz, 70 Wis. 2d at 843
(citation omitted). Consent to enter or remain upon land may be express or
implied. See Reddington v. Beefeaters Tables, Inc., 72 Wis. 2d 119, 124, 240
N.W.2d 363 (1976), modified, 72 Wis. 2d 119, 243 N.W.2d 401 (1976). Hestad
and Allied do not argue that Hestad had express consent to traverse the bridge on
the day of the collapse. Instead, they argue the undisputed facts show that Hestad
had implied consent to do so.

¶13 We disagree. It is undisputed that the Fankhausers expressly
directed Allied—as early as 2005—that its drivers should not use the bridge and
should instead use the west entrance to their property. Moreover, Hestad was
specifically instructed to use the west entrance on the day of the collapse. The
Fankhausers’ express instructions that Allied’s drivers should use the west
entrance and should not use the bridge are fatal to any argument that Hestad had
implied permission to traverse the bridge in order to access the Fankhausers’
property.

¶14 Hestad and Allied nevertheless assert multiple reasons as to why
they believe Hestad had implied consent to use the bridge, none of which we find
persuasive. First, although it is undisputed that the Fankhausers told Allied—

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Hestad’s employer—that its drivers should not use the bridge and should use the
west entrance when collecting garbage from their property, Hestad and Allied
assert that the Fankhausers never personally advised Hestad that he should not use
the bridge. However, Hestad and Allied do not cite any legal authority supporting
the proposition that the Fankhausers were required to communicate that restriction
to each of Allied’s drivers individually, including Hestad, rather than simply
communicating the restriction to Allied itself. We need not address arguments
that are unsupported by references to legal authority. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). Further, this argument
ignores the fact that Allied did communicate the access restriction directly to
Hestad prior to his entry onto the Fankhausers’ property.

¶15 Second, Hestad and Allied assert that Hestad had implied consent to
use the bridge because the Fankhausers “invited him onto their property to remove
their garbage.” However, even though an invitee may have express or implied
permission to frequent one part of a property owner’s premises, he or she may still
be a trespasser in another part of the premises to which he or she has not been
invited. See Monsivais v. Winzenried, 179 Wis. 2d 758, 765 & n.4, 508 N.W.2d
620 (Ct. App. 1993); see also McNally, 5 Wis. 2d at 300-01. Thus, the mere fact
that the Fankhausers invited Hestad onto their property to collect their garbage
does not compel a conclusion that Hestad had implied consent to use the bridge
under the circumstances here.

¶16 Third, Hestad and Allied contend the “only reason” the Fankhausers
told Allied and other companies not to use the east entrance to their property was
because their grandson was living with them at the time and they were worried
about his safety. Hestad and Allied assert that was no longer the case at the time
of the collapse and, as a result, the Fankhausers’ reason for directing companies

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not to use the east entrance no longer existed at that time. In response, the
Fankhausers assert this argument is based on a “flawed understanding of the living
arrangements at the Fankhausers’ property.”

¶17 Regardless, the argument fails because Hestad and Allied do not cite
any legal authority for the proposition that the Fankhausers were required to
provide a reason for the restriction they communicated to Allied in order for it to
be enforceable. Moreover, Hestad and Allied cite no legal authority supporting
their assertion that once the reason for the Fankhausers’ restriction ceased to exist,
the restriction also ceased to exist and Hestad therefore had implied consent to use
the bridge. See Pettit, 171 Wis. 2d at 646. In addition, there is no evidence in the
record that Hestad (or any other Allied driver) was aware of the reason for the
Fankhausers’ restriction or knew that the reason had ceased to exist before the
bridge collapsed.

¶18 Fourth, Hestad and Allied assert it was “reasonable for Hestad to
believe that it was safe to drive over the bridge” because the Fankhausers
“regularly drove their own commercial truck and trailer across the bridge, and they
conceded that they were never concerned about whether the bridge could hold a
commercial vehicle.” Regardless of whether it was “reasonable” for Hestad to
believe that he could safely drive over the bridge, the undisputed facts show that
the Fankhausers expressly informed Allied that its drivers should not do so. Under

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these circumstances, Hestad’s belief about the bridge’s safety is irrelevant to
whether he had implied consent to traverse it.2

¶19 Fifth, Hestad and Allied observe that there were no markings or
signs on the bridge indicating that it was not safe—or permissible—for
commercial drivers to use it. They further note that the bridge “was not blocked
and was open to the public.” Citing Verdoljak v. Mosinee Paper Corp., 192 Wis.
2d 235, 531 N.W.2d 341 (Ct. App. 1995), aff’d, 200 Wis. 2d 624, 547 N.W.2d 602
(1996), they argue these facts show that Hestad had implied permission to use the
bridge.

¶20 Verdoljak does not support Hestad and Allied’s position. In that
case, Verdoljak was injured when he struck a closed gate while motor biking on a
private logging road on land owned by Mosinee Paper Corporation. Id. at 237.
The primary issue on appeal was whether the recreational immunity statute barred
Verdoljak’s negligence claim against Mosinee Paper. Id. at 237-38. However, as
a preliminary matter—and without the benefit of briefing or argument by the
parties—we addressed whether Verdoljak’s claim failed for the alternative reason
that he was a trespasser on Mosinee Paper’s property, as a matter of law. Id. at
242-43. We concluded that was not the case because the facts “arguably [gave]

2
In any event, our case law states that a property owner’s “invitation, consent or
permission may be implied … when the owner’s conduct is such as would warrant a reasonable
person having knowledge thereof to believe that the owner had given consent to come upon the
premises.” Verdoljak v. Mosinee Paper Corp., 192 Wis. 2d 235, 243, 531 N.W.2d 341 (Ct. App.
1995), aff’d, 200 Wis. 2d 624, 547 N.W.2d 602 (1996) (emphasis added). Here, there is nothing
in the record to indicate that Hestad knew before he attempted to traverse the bridge that the
Fankhausers regularly drove their commercial truck and trailer across it and believed it could
carry commercial loads. To the contrary, the record indicates that Hestad had never been to the
Fankhausers’ property before the day of the collapse.

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rise to inferences upon which a finding could be made that [Verdoljak] was not a
trespasser.” Id. at 244. We explained:

Mosinee granted permission to the public to enter its land
for certain recreational purposes, but posted no notice of
these limits. Perhaps more to the point, the gate at an
undisclosed location in the interior of the property left an
apparent unrestricted entry to the logging road at an
intersection with a public highway. Despite Mosinee’s
conclusory statement that Matthew was a trespasser, the
property was neither posted nor enclosed, and [Verdoljak]
was never told to keep out.

Id. at 243-44.

¶21 Verdoljak is distinguishable because, unlike Mosinee Paper, the
Fankhausers did not grant permission to the public to enter their land. Moreover,
while Verdoljak was “never told to keep out” of Mosinee Paper’s property, the
Fankhausers expressly instructed Allied that its drivers should not use the bridge,
and Hestad was aware that he was supposed to use the west entrance. Under these
circumstances, the fact that the bridge was neither posted nor blocked does not
establish, as a matter of law, that Hestad had implied consent to use the bridge.

¶22 In the alternative, Hestad and Allied argue that “[a]t a minimum,”
the circuit court should have concluded there was a genuine issue of material fact
as to whether Hestad was a trespasser. They assert a jury could find that Hestad
did not intend to trespass on the Fankhausers’ property because he merely
followed the directions provided by his GPS, which led him to an entrance that
was marked by wagon wheels and had an address that corresponded to the one on
his route sheet. They further contend that the circuit court misinterpreted McNally
as holding that “any time an individual is invited onto property but makes a

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mistaken deviation from the ‘correct’ path, that deviation automatically makes the
individual a trespasser.”

¶23 McNally was hired to perform repairs on the roof of a building
rented by Goodenough. McNally, 5 Wis. 2d at 295-96. McNally climbed down
from the roof to ask Goodenough a question, and when making his way back to
the roof, he deviated from the direct path he had previously taken and entered a
vestibule, where he fell down a set of stairs. Id. at 296-98. Our supreme court
concluded that Goodenough was not liable under the safe place statute because
McNally was a trespasser at the time of his fall. Id. at 300-01. The court
explained:

When [McNally] deviated from the direct path and turned
into the vestibule at the head of the stairs he became a
trespasser as a matter of law and he was a trespasser when
hurt on the stairway. On no theory did [McNally] have any
right to be in the vestibule or to use the stairway. Nothing
connected with his work required or justified his presence
there. He had no privilege to be there created by the
Goodenoughs’ consent or otherwise, and hence was a
trespasser. The fact that he did not intend to use the
stairway, but was confused and did so by mistake, does not
prevent its being a trespass.

Id. at 301 (citation omitted).

¶24 McNally teaches that when a person mistakenly enters into an area
where he or she does not have permission to be, the mistake “does not prevent [the
entry from] being a trespass.” See id. In this case, as in McNally, “[o]n no
theory” did Hestad have any right to be on the bridge at the time of the collapse.
See id. Again, the Fankhausers had specifically told Allied that its drivers were
not to use the bridge, and Hestad knew that he was supposed to use the west
entrance when collecting the Fankhausers’ garbage. Thus, “[n]othing connected to

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[Hestad’s] work required or justified his presence” on the bridge. See id. Under
these circumstances, even assuming that Hestad’s use of the bridge was mistaken
rather than intentional, that fact does not prevent us from concluding, as a matter
of law, that Hestad was a trespasser.

¶25 Hestad and Allied also cite various cases in support of the
proposition that Hestad was not a trespasser because he was not on the
Fankhausers’ property for his own purposes or convenience when the bridge
collapsed but was instead there in the performance of a duty to the Fankhausers.
We reject this argument because even though Hestad’s presence on the
Fankhausers’ property in general was in the performance of a duty to the
Fankhausers, his presence on the bridge was not. As noted above, Hestad’s work
did not require or justify his presence on the bridge. See id. Moreover, Hestad
and Allied’s argument is inconsistent with McNally, where our supreme court
concluded as a matter of law that an individual hired to repair a roof was a
trespasser when he ventured outside the areas where he needed to be in order to
complete his work.

¶26 Ultimately, the undisputed facts show that the Fankhausers expressly
told Allied that its drivers should not use the bridge and should instead use the
west entrance to their property. It is further undisputed that Hestad knew he was
supposed to use the west entrance when collecting the Fankhausers’ garbage.
Under these circumstances, the circuit court properly determined, as a matter of
law, that Hestad was a trespasser at the time of the bridge collapse. As a result,
the court properly granted the Fankhausers summary judgment on Hestad and
Allied’s counterclaims.

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II. Failure to grant a directed verdict in favor of Hestad and Allied

¶27 Hestad and Allied next argue that the circuit court erred by failing to
grant a directed verdict in their favor on the Fankhausers’ negligence claim on the
grounds that the Fankhausers failed to prove their damages. Their argument in
this regard is twofold. First, they contend the court erred by holding the
Fankhausers to a “reduced damages burden.” Second, they argue that even if the
court applied the correct damages burden, the Fankhausers failed to meet it.

¶28 As to Hestad and Allied’s first argument, whether the circuit court
applied the correct legal standard is a question of law that we review
independently. Republic Bank of Chicago v. Lichosyt, 2007 WI App 150, ¶24,
303 Wis. 2d 474, 736 N.W.2d 153. Hestad and Allied argue that in order to prove
their damages, the Fankhausers were required to present evidence of the bridge’s
market value the moment before it collapsed. They argue the court erred by
concluding such evidence was not required and by instead applying the rule of
damages set forth in Town of Fifield v. State Farm Mutual Automobile
Insurance Co., 119 Wis. 2d 220, 349 N.W.2d 684 (1984).

¶29 We agree with the Fankhausers and the circuit court that the rule set
forth in Town of Fifield is applicable here. In that case, the Town of Fifield
owned a steel truss bridge that was built in about 1905. Id. at 222, 224. In 1977, a
truck carrying a load of forty-three tons drove over the bridge, which had a rated
load limit of only four tons, and the bridge collapsed. Id. at 222. The town sued
the trucking company and its insurer, seeking damages for the total destruction of
the bridge. Id.

¶30 On appeal, it was undisputed that the old bridge “had no market
value, in the sense that no willing buyer or willing seller, even hypothetically,

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could be imagined.” Id. at 227. Our supreme court therefore held that “[t]he usual
rule of damages—the value before the occurrence as compared to the value
thereafter—is not applicable, because the value before is not readily ascertainable
on the basis of market value.” Id. The court instead adopted the town’s position
that “the value of the bridge is the value to the owner[,] which is to be ascertained
by all the factors placed before the jury, including opinion evidence, cost, use, cost
of restoration, ease or likelihood of repair, continued usefulness, age of the
property, and its condition.” Id. The court further explained:

Market value is only a method of arriving at value to the
owner. The reason market value is the usual standard is
that, in respect to a broad range of property, a loss can be
made good by going into the open market and buying an
equivalent substitute. Thus, it is always the value to the
owner, to the injured party, that is the measure of damages,
but market value is just one way to measure such damages.

Id. at 229.

¶31 Town of Fifield is on all fours with this case. Here, as in Town of
Fifield, it was undisputed at trial that the Fankhausers’ bridge had no market value
at the time of the collapse.3 Under these circumstances, the circuit court properly

3
Hestad and Allied assert on appeal that they did not concede the bridge had no market
value. However, that assertion is patently false. During a jury instruction and verdict conference
on the first day of trial, the circuit court specifically asked the parties’ attorneys, “Does anybody
disagree that there’s not a market value for a bridge?” Both attorneys then confirmed they did not
disagree with that proposition. Although Hestad and Allied argue in their reply brief that they
had raised an argument regarding market value “numerous times before” the jury instruction and
verdict conference, they do not cite any portion of the record in which they specifically argued
that the bridge had a market value before its collapse.

(continued)

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determined that the damages rule set forth in Town of Fifield was applicable. We
therefore turn to Hestad and Allied’s alternative argument that, even applying the
“reduced damages burden” set forth in Town of Fifield, the court should have
directed a verdict in their favor because the Fankhausers failed to present
sufficient evidence to prove their damages.

¶32 A court may grant a motion for a directed verdict challenging the
sufficiency of the evidence only if it “is satisfied that, considering all credible
evidence and reasonable inferences therefrom in the light most favorable to the
party against whom the motion is made, there is no credible evidence to sustain a
finding in favor of such party.” WIS. STAT. § 805.14(1). Because the circuit court
is in a better position than this court to assess the weight and relevancy of the trial
testimony, we give substantial deference to the circuit court’s better ability to
assess the evidence. Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 388-89,
541 N.W.2d 753 (1995). Consequently, we will not overturn a circuit court’s
decision on a motion for a directed verdict unless the record reveals that decision
was “clearly wrong.” Id. at 389 (citation omitted).

¶33 In this case, the circuit court instructed the jury as follows with
respect to the Fankhausers’ damages:

Since the bridge had no market value at the time of its
destruction, compensation to the owner is measured by the
value of the bridge to the owner at the time of its

Hestad and Allied also argue on appeal that Town of Fifield v. State Farm Mutual
Automobile Insurance Co., 119 Wis. 2d 220, 349 N.W.2d 684 (1984), is inapplicable because
the bridge in that case was public property, rather than private property. They assert Town of
Fifield’s holding “makes sense” when confined to the context of public bridges “because placing
a value on public property is difficult.” This attempt to distinguish Town of Fifield fails because
the court in that case did not base its holding on any perceived difficulty in valuing public
property.

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destruction. In determining the value of the bridge to the
Fankhausers you should consider: the nature of the bridge,
its use, age, original cost and depreciation, the cost to
replace the bridge, and all other facts and circumstances
received in evidence which bear on the value of the bridge
to the Fankhausers.

You should not consider any sentimental value which [the]
Fankhausers may have attached to the bridge.

See WIS JI—CIVIL 1803 (2010).

¶34 Evidence was presented at trial regarding the factors set forth in the
jury instruction. As to the nature of the bridge, the jury learned that the bridge was
a single-span, steel truss bridge that was positioned on concrete supports located
approximately 48.5 feet apart. The overall truss width was approximately sixteen
feet, which provided about fifteen feet of space between the railings. The bridge
was constructed in 1905 and was originally part of Highway 48, which was later
rerouted. The jury was shown photographs depicting the bridge’s appearance
before the collapse.

¶35 Evidence was also presented at trial regarding the Fankhausers’ use
of the bridge. DeEtte testified that she used the bridge on a daily basis. In
contrast, she did not regularly use the west entrance to the Fankhausers’ property.
The Fankhausers’ mailbox is located at the east entrance to their property, and
before the bridge collapsed, they would typically enter their property via the east
entrance, park on the bridge, and then walk to the mailbox to retrieve their mail.
Since the collapse, the Fankhausers have been forced to park on 20½ Avenue
when getting their mail, and they must then drive to the west entrance in order to
enter their property.

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¶36 The Fankhausers also testified to using the bridge for various
recreational purposes. For instance, Pat testified that he used to fish and swim off
of the bridge and ice skate underneath it. DeEtte testified that she would
frequently sit on the bridge with her grandson and throw rocks into the river. The
bridge was also used as the starting line for duck and boat races during the
Fankhausers’ family reunions.

¶37 As for the cost of the bridge, DeEtte could not remember what she
and her husband paid for the property containing the bridge, and no evidence was
introduced regarding the cost to construct the bridge in 1905. Hestad and Allied
assert that the Fankhausers’ failure to present any evidence regarding the cost of
construction was “almost certainly a strategic decision,” as that information “was
presumably available as a public record” because the bridge was originally part of
a public highway. However, Hestad and Allied do not provide any support for
their claim that the Fankhausers could have obtained public records regarding the
bridge’s cost of construction in 1905. Moreover, if those records still exist and—
as Hestad and Allied imply—are unfavorable to the Fankhausers’ position, Hestad
and Allied could have obtained them and introduced them at trial. They did not do
so.

¶38 In contrast, both sides introduced evidence at trial regarding the next
factor listed in the jury instruction—the cost to replace the bridge. The
Fankhausers presented the expert testimony of engineer David Pantzlaff. Pantzlaff
completed two reports regarding the cost to replace the Fankhausers’ bridge, both
of which were discussed during his trial testimony. The first report, dated
January 29, 2016, set forth three options for replacing the bridge: (1) a steel truss
vehicle bridge, estimated to cost between $450,000 and $500,000; (2) a concrete
flat slab bridge, estimated to cost between $300,000 and $350,000; and (3) a steel

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truss pedestrian bridge, estimated to cost between $250,000 and $300,000.
Pantzlaff discussed the differences between these options during his trial
testimony and provided photographs of each alternative.

¶39 Pantzlaff’s second report, dated March 23, 2016, provided an
opinion as to the cost of “removing the existing bridge and building a new truss
bridge similar to the existing configuration.” Specifically, Pantzlaff opined that
the total cost to build such a bridge would be $575,000, which included $42,000
for removing the old bridge.

¶40 On cross-examination, Pantzlaff conceded that the target life
expectancy of a highway bridge in Wisconsin is seventy-five years. The
Fankhausers’ bridge was 110 years old when it collapsed. Pantzlaff therefore
conceded that, had the bridge remained part of a public road, it “would have
outlived its life expectancy” prior to the collapse. However, Pantzlaff testified the
bridge had not necessarily outlived its life expectancy under the circumstances of
this case, given that it “didn’t get the use that a public bridge would get” and had
“just been sitting there subjected to light usage.”

¶41 Hestad and Allied, in turn, relied on the expert testimony of engineer
Peter Quinn. Quinn testified that given the “very little traffic” on the Fankhausers’
bridge, the “most appropriate” replacement for it would be a “flat railcar bridge[],”
which is a bridge type used “in a number of states to success on low-volume
traffic roads.” Quinn opined that the cost to install a flat railcar bridge on the
Fankhausers’ property would be $142,925. However, he conceded that estimate
did not include the cost to hire a metallurgist to test the integrity of the steel used
in the railcar bridge, nor did it include the cost to install railings. Quinn also
conceded that he had never been involved in the construction of a railcar bridge

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and had never actually seen one in person. Quinn further testified that he did not
know whether the State of Wisconsin would permit the use of a railcar bridge on
private land.

¶42 Quinn testified that a new steel truss bridge could “absolutely” be
built on the Fankhausers’ property, but he opined that the method by which such
bridges are constructed is “antiquated.” He estimated it would cost $323,036 to
construct a new steel truss bridge, but he conceded that amount did not include
any costs for engineering, salvage, or demolition. He also conceded that
Pantzlaff’s estimated cost of $575,000 for a new steel truss bridge was reasonable.

¶43 In addition to the factors discussed above, the jury instruction on
damages also directed the jurors to consider “all other facts and circumstances
received in evidence which bear on the value of the bridge to the Fankhausers.”
Evidence was introduced at trial that without the bridge, the parcel of land
containing the Fankhausers’ residence is landlocked—i.e., it has no access to a
public road. Thus, if the Fankhausers want to sell that parcel separately from their
western parcel, the new owner will either have to obtain an easement or replace
the destroyed bridge. DeEtte also testified that because she and Pat must now use
the driveway that passes their son’s residence, they have less privacy than they did
before the bridge collapsed. Both of these considerations are relevant to
determining the bridge’s value to the Fankhausers.

¶44 As the above summary demonstrates, evidence was introduced at
trial regarding nearly all of the factors listed in the jury instruction on damages.
That evidence was sufficient for the jury to make a determination regarding the
precollapse value of the Fankhausers’ bridge. Although damages may not be
determined “by mere speculation or guess, it will be enough if the evidence

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show[s] the extent of the damages as a matter of just and reasonable inference.”
Town of Fifield, 119 Wis. 2d at 230-31 (citation omitted). Thus, on the record
before us, we cannot conclude that the circuit court’s decision to deny Hestad and
Allied’s motion for a directed verdict was “clearly wrong.” Weiss, 197 Wis. 2d at
389 (citation omitted).

III. Failure to reduce the jury’s damage award

¶45 Hestad and Allied next argue that the jury’s award of $500,000 in
damages is excessive, and the circuit court should have granted their motion to
reduce the award under WIS. STAT. § 805.15(6). An award of damages is
excessive under § 805.15(6) when it “reflects injuries not proved or ‘a rate of
compensation beyond reason.’” Staskal v. Symons Corp., 2005 WI App 216, ¶38,
287 Wis. 2d 511, 706 N.W.2d 311 (citation omitted). When considering a motion
to reduce a damages award under § 805.15(6), a circuit court must view the
evidence in the light most favorable to the jury’s verdict. Staskal, 287 Wis. 2d
511, ¶39. Thus, the court must affirm the award “if there is any credible evidence
under any reasonable view that supports the jury’s finding on the amount of
damages.” Id. On appeal, “we view the jury’s verdict ‘with particular favor’
where, as here, the circuit court has analyzed the evidence in reaching its
decision.” Id., ¶40 (citation omitted).

¶46 In this case, we agree with the circuit court that there was credible
evidence to support the jury’s award of $500,000 in damages. As summarized
above, evidence was introduced at trial regarding the factors set forth in WIS JI—
CIVIL 1803 (2010). That evidence included Pantzlaff’s opinion that it would cost
$575,000 to replace the bridge with a new steel truss bridge, as well as Quinn’s
concession that Pantzlaff’s cost estimate was reasonable. The jury could also

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consider Pantzlaff’s testimony that although the target life expectancy of a
highway bridge in Wisconsin is seventy-five years, the same is not necessarily true
for a private bridge that is subjected to only “light usage.”

¶47 In addition, evidence was introduced at trial regarding the
Fankhausers’ use of the bridge both to access their property and for recreational
purposes. Moreover, there was evidence that if the Fankhausers ever sold the
parcel where their residence is located, that parcel would be landlocked without a
bridge. DeEtte also testified that she and Pat have less privacy than they did
before the bridge collapsed because they must now use the driveway that passes
their son’s residence. Taken together, this evidence supported the jury’s
determination that the bridge’s value to the Fankhausers before its collapse was
$500,000.

¶48 Hestad and Allied argue no reasonable jury “could have found that a
110[-]year-old private bridge, with no record of maintenance, was worth $500,000
the moment before it collapsed.” They therefore contend that the only “rational
explanation” for the jury’s damages award is that the jury
either: (1) impermissibly awarded the Fankhausers the replacement cost of the
bridge; or (2) impermissibly awarded the Fankhausers damages for the bridge’s
sentimental value.

¶49 As to Hestad and Allied’s first argument, we observe that the jury
was permitted to consider the replacement cost of the bridge when determining the
amount of the Fankhausers’ damages. See WIS JI—CIVIL 1803 (2010). Moreover,
the jury ultimately awarded a sum that was less than the $575,000 figure that both
experts agreed was a reasonable estimate of the cost to install a new steel truss

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No. 2019AP110

bridge. That fact undercuts Hestad and Allied’s claim that the jury merely
awarded the Fankhausers the bridge’s replacement cost.

¶50 Turning to Hestad and Allied’s second argument, the jury was
expressly instructed that when awarding damages, it was not to consider any
sentimental value that the Fankhausers attached to the bridge. See id. We
presume that jurors follow the court’s instructions. State v. Truax, 151 Wis. 2d
354, 362, 444 N.W.2d 432 (Ct. App. 1989). To the extent Hestad and Allied
intend to argue that the Fankhausers’ attorney improperly invoked the bridge’s
sentimental value during his closing argument, we observe that Hestad and Allied
did not object to those remarks. “Improper remarks in closing arguments cannot
be a basis for a motion for a new trial or a basis for an appeal … if no timely
objection to the argument was made.” Hubbard v. Mathis, 53 Wis. 2d 306, 307,
193 N.W.2d 15 (1972). Because Hestad and Allied failed to object to any
allegedly improper remarks during the Fankhausers’ closing argument, we decline
to consider their argument that those remarks improperly influenced the jury’s
damages award.

IV. Failure to allow cross-examination of the Fankhausers regarding the
bridge’s precollapse condition and maintenance

¶51 Hestad and Allied also argue that the circuit court erred by
prohibiting them from cross-examining the Fankhausers regarding the bridge’s
precollapse condition and maintenance. A circuit court has discretion to restrict
cross-examination, and we will not reverse based on the court’s decision to do so
unless the court erroneously exercised its discretion and the error “affected a
substantial right of the complaining party and probably affected the result of the
trial.” Neider v. Spoehr, 41 Wis. 2d 610, 618, 165 N.W.2d 171 (1969).

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¶52 During Hestad and Allied’s cross-examination of DeEtte, the circuit
court sustained an objection when counsel asked whether DeEtte knew “when
there was any maintenance last done on this bridge.” The jury was then excused,
and counsel for Hestad and Allied argued that whether the Fankhausers had
maintained the bridge was relevant to determining the bridge’s value. He
explained:

I would liken this to an automobile. Somebody has a
destroyed automobile and the jury is supposed to put a
value on it, but the oil has never been changed in ten years.
That would certainly be relevant to explain the condition of
the vehicle, what it’s worth. It’s a similar situation here.

¶53 Counsel for the Fankhausers responded that evidence regarding their
maintenance of the bridge instead went to “the negligence or the responsibility on
the part of the plaintiff[s]. … If the jury hears that … there hasn’t been any
maintenance on it, then they’re going to speculate as to, all right, what really
caused this bridge collapse?” Counsel further argued there had been no expert
testimony “that this bridge collapsed because it was poorly maintained.”

¶54 After reviewing the jury instruction on damages, the circuit court
agreed with the Fankhausers, explaining:

I’m going to sustain the objection. I think [the question
regarding maintenance] asks the jurors to speculate on
issues of causation rather than value.

If it was … if the issue was that it was in poor repair and
they knew it and didn’t fix it, that’s an issue because that
goes to value. But maintenance alone has more than one
connotation. I think it requires the speculation.

When the jury returned, counsel for Hestad and Allied asked DeEtte whether the
Fankhausers had ever hired a professional to inspect the bridge, and the court
sustained the Fankhausers’ objection to that question.

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No. 2019AP110

¶55 We conclude the circuit court did not erroneously exercise its
discretion by preventing Hestad and Allied from questioning DeEtte about the
Fankhausers’ maintenance and inspection of the bridge. Hestad and Allied’s
questions about those topics went, at least in part, to the issue of whether the
Fankhausers were responsible for the bridge’s collapse because they had failed to
properly maintain or inspect it. However, as the Fankhausers’ attorney pointed
out, there was no expert testimony at trial that the bridge collapsed because it was
poorly maintained. Moreover, the jury was not asked to determine whether the
bridge’s collapse was caused in part by the Fankhausers’ negligence. Instead, the
special verdict asked the jurors to determine only whether Hestad and Allied were
causally negligent. As such, the issue of the Fankhausers’ responsibility for the
collapse would likely have confused the jury. Under these circumstances, the
court did not erroneously exercise its discretion by limiting Hestad and Allied’s
cross-examination of DeEtte. See WIS. STAT. § 904.03 (relevant evidence may be
excluded if its probative value is “substantially outweighed by the danger of …
confusion of the issues”).

¶56 Later on, during Pat’s testimony, the circuit court sustained the
Fankhausers’ objections when counsel for Hestad and Allied asked: (1) whether
Pat had ever known the bridge’s capacity; (2) whether he ever had concerns about
the safety of the bridge or about driving his truck and trailer over it; and (3) if he
knew before the collapse whether the bridge could hold a truck. The court did not
erroneously exercise its discretion by sustaining the Fankhausers’ objections to
these questions. Again, the questions appear designed to suggest that the bridge
was unsafe and that the Fankhausers were therefore responsible for its collapse.
As explained above, the Fankhausers’ potential responsibility for the collapse was
not an issue before the jury, and evidence regarding Pat’s beliefs about the

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No. 2019AP110

bridge’s capacity, safety, and ability to hold a truck would therefore likely have
confused the issues.

¶57 In addition, even if the circuit court erred by limiting Hestad and
Allied’s cross-examination of the Fankhausers, to obtain relief on that basis
Hestad and Allied must demonstrate that the alleged error affected their substantial
rights and probably affected the result of the trial. See Neider, 41 Wis. 2d at 618.
They have not made this showing. The record is devoid of any evidence
suggesting that the bridge was in a poor condition prior to the collapse. Hestad
and Allied did not introduce any expert testimony to that effect, nor did they
present an offer of proof supporting their theory regarding the poor condition of
the bridge. Moreover, Hestad and Allied’s attorney conceded at trial that the
Fankhausers had testified the bridge “was in good condition. It was solid. …
[T]here was nothing wrong that they could see with it.” On these facts, we cannot
conclude that the court’s limitation of Hestad and Allied’s cross-examination of
the Fankhausers affected Hestad and Allied’s substantial rights or the result of the
trial.

V. Failure to exclude the opinion of the Fankhausers’ damages expert

¶58 Hestad and Allied next argue that the circuit court erred by failing to
exclude Pantzlaff’s opinion that it would cost $575,000 to replace the bridge with
a similar steel truss bridge. The admission of expert testimony is governed by
WIS. STAT. § 907.02(1), which provides:

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and methods,

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No. 2019AP110

and the witness has applied the principles and methods
reliably to the facts of the case.

Whether to admit expert testimony rests within the circuit court’s discretion. State
v. Pico, 2018 WI 66, ¶15, 382 Wis. 2d 273, 914 N.W.2d 95.

¶59 Hestad and Allied argue the circuit court erred by admitting
Pantzlaff’s opinion as to the replacement cost of the bridge because his opinion
was not “the product of reliable principles and methods.”4 See WIS. STAT.
§ 907.02(1). They note that during his deposition, Pantzlaff testified that in order
to estimate the bridge’s replacement cost, he “visited the site to collect some data
in regard to the existing length and width” and to “view the previous structure that
was collapsed.” Then, based on his experience designing bridges, he “estimated
what a new bridge carrying legal loads would entail.”

¶60 Pantzlaff conceded during his deposition that he did not perform the
more complex process that he uses when designing a bridge for actual
construction. He explained that process entails: (1) completing a field survey—
i.e., drawing a map of the area’s topography; (2) completing a hydraulic analysis
for review by regulatory agencies such as the Wisconsin Department of Natural
Resources; (3) drawing a conceptual or preliminary plan for review by the
appropriate regulatory agencies and by the property owner; (4) preparing final

4
Hestad and Allied do not dispute that Pantzlaff was qualified to offer an opinion
regarding the replacement cost of the bridge. Any argument to that effect would have been
meritless, as the record shows that Pantzlaff was employed as a bridge engineer at the Iowa
Department of Transportation from 1973 to 1978; obtained a master’s degree in structural
engineering in 1977; and had been employed at a private engineering firm since 1978 as a
“project engineer and manager for various bridge projects.” Moreover, Pantzlaff testified at trial
that he had participated in the engineering process for approximately 1000 bridges over the
course of his career.

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No. 2019AP110

plans and specifications; (5) writing specifications to modify the standard
specifications set forth by the Wisconsin Department of Transportation (DOT);
(6) advertising the project to contractors and accepting bids to construct the
bridge; (7) evaluating the bids; and (8) overseeing the selected contractor’s
construction of the bridge.

¶61 Hestad and Allied contend that Pantzlaff’s methods in this case were
not reliable because he conceded he did not perform all of the steps outlined in the
previous paragraph when formulating his opinion as to the replacement cost of the
Fankhausers’ bridge. However, Hestad and Allied do not explain why it was
necessary for Pantzlaff to perform those steps here, where he was merely
estimating replacement cost, rather than designing a bridge for actual construction.
Moreover, Pantzlaff testified at trial that his usual process when estimating the
cost to replace a bridge is to: (1) visit the site and collect data regarding the
bridge’s span and height; (2) consult maps and hydraulic data “to get a sense for
what size structure is appropriate at the site”; and (3) calculate a bid estimate after
computing the quantities of materials needed and consulting the DOT’s database
“for bid tabulations for previous similar projects in this geographic area.”
Pantzlaff testified that he followed this process when estimating the cost to replace
the Fankhausers’ bridge.

¶62 On this record, we cannot conclude the circuit court erroneously
exercised its discretion when it rejected Hestad and Allied’s argument that
Pantzlaff’s methods were unreliable. As the court aptly noted, the jury could
consider Hestad and Allied’s criticisms of Pantzlaff’s methods when deciding
whether to accept his opinion regarding the cost to replace the bridge. Those
criticisms did not, however, render Pantzlaff’s testimony inadmissible.

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No. 2019AP110

VI. Failure to include separate questions on the special verdict for different
categories of damages

¶63 Finally, Hestad and Allied argue that the circuit court erred by
failing to include separate questions on the special verdict for different categories
of damages. A circuit court has wide discretion in determining the words and
form of a special verdict, and we will not reverse unless the court erroneously
exercised its discretion. Gumz v. Northern States Power Co., 2007 WI 135, ¶23,
305 Wis. 2d 263, 742 N.W.2d 271. “A court erroneously exercises its discretion if
the special verdict questions fail to cover all issues of fact or are inconsistent with
the law.” Id., ¶24.

¶64 The special verdict in this case contained a single question regarding
damages: “What amount will reasonably compensate Plaintiffs for the destruction
of their bridge as a result of the November 19, 2015, bridge collapse?” Hestad and
Allied assert that “[w]hen a party is seeking several categories of damages, the
verdict should separate the damages out by category so that the opposing party and
the circuit court can determine whether the respective damage awards were
supported by admissible and credible evidence.” They therefore argue the circuit
court should have included separate questions on the special verdict for the two
categories of damages the Fankhausers sought in this case: (1) the bridge’s
precollapse value; and (2) the cost to remove the collapsed bridge.

¶65 The problem with Hestad and Allied’s argument is that the legal
authority they rely on does not support it. Citing Koele v. Radue, 81 Wis. 2d 583,
588, 260 N.W.2d 766 (1978), Hestad and Allied argue that juries in personal
injury cases “routinely answer separate verdict questions for different categories of
damages, such as past and future medical expenses, past and future lost wages, and
pain and suffering.” However, Koele is merely one example of a personal injury

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No. 2019AP110

case in which the special verdict included separate questions for different
categories of damages. Koele does not stand for the proposition that such
separation is required in all cases.

¶66 Hestad and Allied also argue that the circuit court was required to
include separate damages questions on the special verdict because our supreme
court “approved” the special verdict used in Town of Fifield, which included
separate damages questions. This argument fails for two reasons. First, while the
special verdict in Town of Fifield contained two damages questions, the second
question included multiple categories of damages—namely, the cost to remove
wreckage, expenses incurred in providing a detour, and the cost of a temporary
bridge. Town of Fifield, 119 Wis. 2d at 222-23. Thus, Town of Fifield did not
involve a special verdict that contained separate questions for each category of
damages. Second, the supreme court did not actually “approve” the special verdict
used in Town of Fifield. Rather, no issue regarding the form of the special verdict
was raised on appeal, so the court did not address it.

¶67 Hestad and Allied’s failure to cite any supporting legal authority is
fatal to their argument that the circuit court was required to include separate
damages questions on the special verdict. See Pettit, 171 Wis. 2d at 646. We
therefore reject their claim that the court erroneously exercised its discretion by
failing to do so.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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