Estate of Lynch v. Kane

1. The estate of Katrina L. Lynch and her parents, Kristin and Kenneth Lynch, appeal from a judgment, entered upon a jury's verdict, dismissing their wrongful death claim against Carol Kane and her insurer, West Bend Mutual Insurance Company. The Lynches argue that the trial court erred by denying their motion in limine to exclude what they claim was impermissible character evidence. We reject the Lynches' argument and affirm the judgment.

Background

2. Several minutes after sunset on the evening of June 29, 1998, Kane's vehicle struck fourteen-year-old Katrina Lynch as she walked with her friend Amanda Wierzchowski along Oak Orchard Road in Oconto County. It is undisputed that at the time of the accident, Katrina was walking with the flow of westbound traffic, contrary to Wis. Stat. §346.28(1).1 Katrina died on July 3 as a result of her injuries.

3. The Lynches filed their wrongful death claim in April 1999. In her answer to the Lynches' complaint, Kane asserted as an affirmative defense:

That the injuries of [Katrina Lynch] were the sole and proximate result of her own negligence including, but not limited to, walking on a public highway in violation of law, failure to maintain a proper lookout, failure to wear reflective or otherwise observable clothing, walking on the wrong side of a public roadway, which made it more difficult for her to observe traffic, and was otherwise negligent with respect to her own safety.

The Lynches thereafter filed a motion in limine to exclude evidence of Katrina's presence, position, conduct or behavior on roadways prior to the accident. The trial court denied the motion. Following a trial, the jury ultimately apportioned 55% causal negligence to Katrina and 45% causal negligence to Kane. Based upon the jury's verdict, the trial court entered judgment dismissing the Lynches' claim against Kane and her insurer. This appeal followed.

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¶11. Based upon the foregoing, we are satisfied that there has been no miscarriage of justice. Therefore, we conclude that there is no reason to exercise our discretionary authority under Wis. Stat. §752.35 to reverse the judgment.

By the Court. Judgment affirmed.

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C.L.