COURT OF APPEALS

DECISION

DATED AND FILED

January 22, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1531 Cir. Ct. No. 2015CV8730

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

HARRY VERKLER,

PLAINTIFF-RESPONDENT,

YRC, INC.,

INVOLUNTARY-PLAINTIFF,

V.

ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY AND 

VICTORIA SOUTHERN,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Milwaukee

County: MARY E. TRIGGIANO, Judge. Affirmed. 

Before Brash, P.J., Kessler and Dugan, JJ.
No. 2018AP1531

2

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). 

¶1 PER CURIAM. Victoria Southern and Allstate Insurance Company 

(collectively Allstate) appeal the judgment in this civil negligence action arising 

from an accident between a car driven by Southern and a double semi-trailer truck 

that Harry Verkler was operating. 

¶2 Allstate argues that the trial court erred in denying their request for a 

jury instruction on the emergency doctrine which prejudiced Allstate and that the 

trial court erred in concluding that credible evidence supports the jury’s verdict 

finding that Southern was negligent.1 

¶3 We are not persuaded by Allstate’s arguments. Therefore, we 

affirm. 

BACKGROUND

¶4 Shortly after 1:00 a.m. on September 28, 2013, City of Oak Creek 

police officer Ashley Schnering was dispatched to the scene of an accident near 

YRC, Inc.’s Oak Creek truck terminal. As the officer approached the scene from 

the south, she saw a semi-trailer truck blocking Howell Avenue, a two lane road. 

She also saw a small blue car in YRC’s driveway. 

 

1

 Allstate also raises a new argument in their reply brief that Southern was not negligent 

because she did not engage in a “volitional act” as a result of her blacking out prior to the 

collision. “Generally, we do not consider legal issues which are raised for the first time on 

appeal.” Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶10, 261 Wis. 2d 769, 661 N.W.2d 476. 

Moreover, “[i]t is a well-established rule that we do not consider arguments raised for the first 

time in a reply brief.” See Bilda v. County of Milwaukee, 2006 WI App 57, ¶20 n.7, 292 Wis. 2d 

212, 713 N.W.2d 661. 
No. 2018AP1531

3

¶5 Schnering initially talked to Southern, then seventeen years old, who 

had been driving the blue car. Southern said that she had been lost, but she was 

not lost enough to pull over and use her global positioning system (GPS). 

Southern said she did not remember anything prior to the accident and that she had 

blacked out. Later that morning, Southern told Schnering that she had been 

driving north on Howell Avenue. 

¶6 Next, Schnering spoke to Verkler, a commercial truck driver 

employed by YRC. Verkler stated that Southern caused the accident when she 

made a U-turn and struck the driver’s side of the semi-trailer truck. At the time of 

the accident, Verkler had the semi-trailer truck’s headlights on, the dome light 

illuminated, and reflective strips that were affixed to the truck and the entire length 

of the bottom of the trailers. 

¶7 Verkler stated that when the car hit the truck, the truck was on 

YRC’s driveway. He was sitting in the driver’s seat, looking at paperwork, and

preparing to turn right from the driveway onto Howell Avenue. 

¶8 Schnering then investigated the accident scene and saw that 

Southern’s car and all the related debris from the accident, including oil and 

broken glass, were on YRC’s private driveway that provides access to Howell 

Avenue. Schnering saw a broom leaning against Southern’s car, but she did not 

know who placed the broom there. She said that the broom could have been from 

the fire department, which had arrived before she did, or from another police 

officer. There was no debris on Howell Avenue. 

¶9 The case was tried before a jury on April 30, and May 1, 2018. At 

trial, Southern testified that she believed that she had not blacked out prior to the 

accident. She stated, “In the moment of the police officer and the ambulance and 
No. 2018AP1531

4

everybody asking me, I didn’t have answers for them. And so I think everything 

happened fast. And I didn’t know what was happening, and so I told them that I 

blacked out.” She also testified that she knew she was heading north on Howell 

Avenue at the time of the accident and that was the last thing she recalled. 

¶10 Verkler testified that he glanced up from the paperwork he was 

reviewing, saw the glare of some headlights coming from the north, and did not 

think anything of it. He looked back down and the next thing he remembered was 

feeling an explosion. 

¶11 During the trial, Verkler attempted to introduce Schnering’s 

testimony about her conclusions that she reached based on her observations at the 

accident scene that all the debris was on YRC’s driveway. Allstate objected. 

After an off the record side bar conference, the trial court held that Schnering 

could only testify regarding her observations of the physical evidence, not the 

conclusions she drew from those observations. 

¶12 Before closing arguments, the trial court conducted an instruction 

conference, and Allstate asked the trial court to give the jury the Wisconsin jury 

instruction on the emergency doctrine—WIS JI—CIVIL 1105A MANAGEMENT AND 

CONTROL—EMERGENCY (emergency instruction). The trial court declined to give 

the instruction. Part of the instruction conference was in chambers and is not part 

of the record. However, the trial court allowed the parties to place the issues 

relating to the emergency instruction on the record. The trial court explained on 

the record that it was not going to give the emergency instruction because it was 

not applicable, since Southern could not recall anything about the circumstances 

immediately before the accident. 
No. 2018AP1531

5

¶13 The jury returned a verdict in favor of Verkler, finding that Southern 

was negligent and apportioning 80% of the negligence to her and 20% to Verkler. 

The jury awarded damages to Verkler. 

¶14 Verkler filed a motion for judgment on the verdict. Allstate filed a 

motion to change the verdict or grant a new trial. They also filed a response 

opposing Verkler’s motion for judgment on the verdict. Verkler filed a brief 

opposing Allstate’s motion and requesting that the trial court enter judgment on 

the verdict. Allstate then filed a reply brief. 

¶15 The trial court heard oral arguments on the motions and issued a 

written decision and order denying Allstate’s motion and granting Verkler’s 

motion for judgment on the verdict.2 

¶16 This appeal followed. We will refer to additional necessary facts in 

our discussion. 

DISCUSSION

¶17 Allstate argues that the trial court erred in denying their request for a 

jury instruction on the emergency doctrine and that the lack of that instruction 

prejudiced Allstate. Allstate further argues that the trial court erred in concluding 

that credible evidence supported the jury’s verdict finding that Southern was 

negligent. 

 

2

 Pursuant to a November 2, 2018 order from this court raising the issue of whether the 

July 27, 2018 order was a final order, the trial court issued an order for judgment on 

November 15, 2018, that was a final order for purposes of appeal. We then issued an order 

confirming that, as a result of the November 15, 2018 order, we had jurisdiction over this appeal. 
No. 2018AP1531

6

I. The trial court properly ruled that the emergency 

doctrine does not apply to the facts of this case 

¶18 Allstate contends that the trial court erred when it denied their 

request for the emergency instruction. We conclude that the trial court properly 

ruled that the emergency instruction is not applicable to the facts of this case. 

A. Applicable law 

¶19 “A circuit court has broad discretion in deciding whether to give a 

requested jury instruction.” State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 

701 (1996). “This does not mean, however, that a jury instruction is insulated 

from review. Facts of record must support the instruction and the instruction must 

correctly state the law.” Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 

72, ¶10, 356 Wis. 2d 1, 850 N.W.2d 160. We independently consider whether the 

facts of record support the requested jury instruction and whether the instruction 

correctly states the law. See id. 

¶20 “The emergency doctrine excuses an individual from negligence.” 

Totsky v. Riteway Bus Serv., Inc., 2000 WI 29, ¶22, 233 Wis. 2d 371, 607 

N.W.2d 637. 

The rationale underlying the emergency doctrine “is 

that a person faced with an emergency which his conduct 

did not create or help to create is not guilty of negligence in 

the methods he chose, or failed to choose, to avoid the 

threatened disaster if he is compelled to act instantly 

without time for reflection.”

Id., ¶23 (citations omitted).

¶21 The trial court explained to the parties that the emergency jury 

instruction, WIS JI—CIVIL 1105A, provided in part:
No. 2018AP1531

7

When considering negligence as to management and 

control bear in mind that a driver may suddenly be 

confronted by an emergency, not brought about or 

contributed to by her or his own negligence. If that 

happens and the driver is compelled to act instantly to 

avoid collision, the driver is not negligent if he or she 

makes a choice of action or inaction that an ordinarily 

prudent person might make if placed in the same position. 

This is so even if it later appears that her or his choice was 

not the best or safest course. 

B. The trial court properly denied Allstate’s request 

for the emergency instruction

¶22 As stated earlier, before closing arguments, the trial court ruled that 

it would not give the emergency instruction because the instruction involves a 

driver who makes a choice of action or inaction and, because Southern was unable 

to recall anything about the situation immediately before the accident, there was 

no evidence that Southern made any choice. 

¶23 Schnering testified that, at the scene of the accident, Southern told 

her that she had blacked out. However, during the trial, Southern testified that she 

did not believe that she actually blacked out, it was just that everything was 

happening so quickly with the police and the ambulance and as a result, it was 

easier for seventeen-year-old Southern to say that she had blacked out. Southern 

also testified that she could not recall anything about the accident. 

¶24 In its postverdict decision, the trial court explained, “In light of 

[Southern’s] belief that she didn’t black out, despite her previous ‘guesses’ that 

she actually did pass out, the [c]ourt is unwilling to conclude that the emergency 

instruction was required. While jury instructions must conform to the evidence,

they need not conform to speculation, guesswork and conjecture.” As a result, the 

trial court concluded that the emergency instruction was not applicable to the facts 

of the case. In other words, the trial court found that the evidence presented at 
No. 2018AP1531

8

trial did not include any evidence of an emergency that caused Southern to 

instantly act to avoid the collision and that, in fact, there was no evidence whether 

she acted or did not act at all. 

¶25 We agree with the trial court’s analysis and, thus, we conclude that 

the trial court properly ruled that the emergency instruction was not applicable to 

the facts in this case.

C. At trial Allstate agreed with the trial court’s ruling

¶26 Further, we conclude that, at trial, Allstate agreed with the trial 

court’s ruling. Having agreed with the trial court’s ruling, Allstate cannot now, on 

appeal, argue that the instruction should have been given. See Cascade 

Mountain, Inc. v. Capitol Indem. Corp., 212 Wis. 2d 265, 269, 569 N.W.2d 45 

(Ct. App. 1997) (stating that “[a] party cannot complain about an act to which he 

or she deliberately consents”).

¶27 In its postverdict decision, the trial court explained that, at the time 

of the jury instruction conference and its ruling on the emergency instruction, it 

gave the parties an opportunity to preserve their arguments regarding the 

emergency instruction by placing them on the record. It stated that, at trial, 

“[w]ith respect to the emergency instruction, counsel for [Allstate] stated as 

follows:”

Well, I think the testimony is not clear what 

happened or didn’t happen. I think there’s gaps in memory 

in both parties.... I think that there’s no evidence at all that 

she made that supposed U-turn. It appears she was going 

northbound on Howell, and something happened. I guess 

in terms of the temporal situation there really isn’t a need 

for new testimony on that. And I guess I would agree to 

that. 

(Emphasis added.) 
No. 2018AP1531

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¶28 Moreover, after Allstate’s statement, the trial court responded, 

“[T]he question we had in chambers was what was the emergency. And with the 

lack of recall memory from both parties, I couldn’t find that there was an 

emergency created that someone tried to avoid.” Allstate did not make any further 

argument that the trial court should have given the emergency instruction. We 

conclude that Allstate’s statement regarding the issue of the emergency instruction 

was vague and conciliatory. It amounted to a concession that the trial court was 

correct in its holding that the facts of the case did not fit within the confines of the

emergency instruction.

D. Any error in the jury instructions was forfeited 

because Allstate failed to object to the proposed 

jury instructions on the record 

¶29 The record shows that, although Allstate requested the emergency 

instruction in their proposed list of jury instructions filed with the trial court,

Allstate did not object to the trial court’s ruling denying the request. Where a 

party includes an instruction in a list of proposed jury instructions submitted to the 

trial court, but fails to object with particularity on the record to the rejection of the 

proposed jury instructions, the party forfeits any error.3 See Frayer v. Lovell, 190 

Wis. 2d 794, 809, 529 N.W.2d 236 (Ct. App. 1995). 

 

3

 We have substituted the term “forfeits,” for the term “waives” as used in Frayer v. 

Lovell, 190 Wis. 2d 794, 809, 529 N.W.2d 236 (Ct. App. 1995). We do so based on State v. 

Ndina, wherein our supreme court explained the distinct legal concepts embodied by the terms 

“forfeiture” and “waiver”, even though the two terms are often used interchangeably. See id., 

2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. Forfeiture is “the failure to make timely 

assertion of a right,” and “waiver is the intentional relinquishment of a known right.” Id. (citation 

omitted). In the context of the failure to object to a jury instruction, the applicable term is forfeit. 

Therefore, even though WIS. STAT. § 805.13(3) (2017-18), and some cases interpreting that 

statute refer to this concept as waiver, we use the term forfeit in this and similar contexts 

throughout the opinion. 

(continued)
No. 2018AP1531

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¶30 Here, Allstate included the emergency instruction in a list of 

proposed jury instructions submitted to the trial court, but failed to object when the 

trial court denied the request to give that instruction. Therefore, Allstate forfeited 

any error in the jury instructions that the trial court gave to the jury.

E. Allstate forfeited any argument regarding prejudice

¶31 Allstate also argues that this court should grant a new trial in light of 

the trial court’s error in failing to instruct the jury on the emergency doctrine 

because the error was prejudicial. This argument is based on Verkler’s argument 

in closings that Southern’s blacking out constituted negligence. Allstate argues

that Verkler’s counsel’s misrepresentation of the law prejudiced them.4 We are 

not persuaded by Allstate’s argument.

¶32 What Allstate is really arguing is that they were prejudiced by 

Verkler’s closing argument. They argue that, at trial and in postverdict motions,

Verkler argued that “suddenly and unexpectedly blacking out while driving 

constitutes evidence of negligence.” Allstate then asserted that Verkler’s closing 

argument misstated the law.

¶33 We conclude that, even if Verkler misstated the law during closing 

argument, because Allstate neither moved for a new trial nor objected to the 

 

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

noted. 

4

 Allstate also maintains that, by relying on Southern’s blacking out in his closing

argument, Verkler judicially admitted the blackout and is now judicially estopped from denying 

that Southern blacked out. Because we conclude that Allstate forfeited any argument regarding 

Verkler’s closing argument, we need not address Allstate’s judicial admission and judicial 

estoppel arguments.
No. 2018AP1531

11

closing argument before the jury reached its verdict, Allstate forfeited the 

argument. See, e.g., Peot v. Ferraro, 83 Wis. 2d 727, 741-42, 266 N.W.2d 586 

(1978) (stating that review on appeal of “an allegedly improper closing argument” 

cannot be had “as a matter of right” if “the objecting party did not move for a 

mistrial on the basis of the claimed impropriety before the jury returned its 

verdict”).

¶34 Thus, with respect to Allstate’s argument that the trial court erred in 

declining to give the emergency instruction, we conclude that: (1) the trial court 

properly decided that the evidence did not support giving the emergency 

instruction; (2) at trial Allstate agreed that the trial court’s ruling was correct and, 

therefore, cannot now on appeal argue that the instruction should have been given; 

(3) Allstate failed to object on the record to the trial court’s rejection of their 

proposed jury instruction and, therefore forfeited the issue; and (4) Allstate failed 

to object to Verkler’s closing argument and did not move for a new trial and, 

therefore, they forfeited any prejudice argument.

II. Credible evidence supports the jury’s verdict

¶35 Allstate argues that there is no “genuine” evidence of negligence in 

the record to support the jury’s finding that Southern was negligent. Verkler 

argues that evidence supports the jury’s finding that Southern was negligent,

relying on the evidence that Southern failed to see what was in plain sight; that the 

accident occurred in YRC’s driveway; that Southern was lost, watching addresses, 

and not using her GPS; that she made a U-turn in YRC’s driveway; and that she 

blacked out.
No. 2018AP1531

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A. Applicable law 

¶36 “Our review of a jury’s verdict is narrow.” See Morden v. 

Continental AG, 2000 WI 51, ¶38, 235 Wis. 2d 325, 611 N.W.2d 659. We “will 

sustain a jury verdict if there is any credible evidence to support it.” See id. It is 

the jury’s role to evaluate the credibility of witnesses and weigh the evidence. Id., 

¶39. As a result, when the evidence supports more than one reasonable inference, 

“we accept the particular inference reached by the jury.” See id. We will overturn 

a verdict only in cases where “there is such a complete failure of proof that the 

verdict must be based on speculation.” See id., ¶40. (citation omitted). We will 

uphold the jury verdict regardless of whether the evidence is “contradicted and the 

contradictory evidence [is] stronger and more convincing.” See id., ¶39 (citation 

omitted). 

¶37 To establish a claim for negligence under Wisconsin law, a plaintiff 

must prove: “(1) a duty of care on the part of the defendant; (2) a breach of that 

duty; (3) a causal connection between the conduct and injury; and (4) an actual 

loss or damage as a result of the injury.” See Miller v. Wal-Mart Stores, Inc., 219 

Wis. 2d 250, 260, 580 N.W.2d 233 (1998) (citation omitted). 

B. Southern’s failure to see what was in plain view

¶38 Verkler argues that the jury’s finding that Southern was negligent is 

supported by the evidence that Southern failed to see what was in plain view. 

Allstate argues that Verkler did not make this argument before the trial court and, 

therefore, forfeited it. 

¶39 The record refutes Allstate’s forfeiture argument. The trial court 

specifically gave a jury instruction on plain view. Moreover, at trial, the evidence 
No. 2018AP1531

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indicated that Verkler’s vehicle was a semi-trailer truck sitting in the driveway 

with its headlights and dome light on, and with reflective trim. Furthermore, 

Southern admitted that nothing impaired her vision of the truck and, yet, she 

crashed into it. Such evidence supports a reasonable inference that Southern

breached her duty of care. 

C. Evidence of the accident location

¶40 The location of the accident also supports the inference that 

Southern breached her duty of care. Verkler’s testimony established that the 

impact occurred on YRC’s private driveway, not on Howell Avenue—the road 

that Southern was traveling on. Southern had to leave the road before she could

crash into the truck. All the physical evidence was in the driveway. 

¶41 Allstate argues that Schnering’s testimony that all the evidence was 

in the driveway is not evidence of negligence because Schnering only testified 

about the physical location of the debris in the driveway, and because Schnering 

was not allowed to express an opinion regarding the location of impact because 

she was not an expert. Allstate argues that, if the lay experience of Schnering did 

not qualify her to express the opinion that the accident occurred in the driveway, 

then the lay persons on the jury had insufficient basis to draw that inference. In 

support of their argument, Allstate cites Boutin v. Cardinal Theatre Co., 267 Wis. 

199, 201, 64 N.W.2d 848 (1954), an action under the safe place statute arising 

from injuries that a theatre patron sustained due to a fall to the floor in the 
No. 2018AP1531

14

darkened theatre after he attempted to sit on a theatre seat that was missing its 

lower seat cushion. Boutin does not support Allstate’s argument.5 

¶42 Allstate fails to develop any argument that based on the evidence in 

the record, it was beyond the common knowledge of a lay person—the jurors—to 

determine the point of impact of the collision. See State v. Pettit, 171 Wis. 2d 

627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (declining to address undeveloped 

arguments). We conclude that the fact that the point of impact occurred at the 

location of all the debris was within the knowledge of the jury, based on the 

common knowledge of lay persons regarding the relationship between a car 

crashing into a semi-trailer truck, the location of debris following that collision, 

and where that collision occurred. 

¶43 Therefore, we conclude that the evidence that all the debris from the 

accident was located on YRC’s driveway is supportive of the jury’s finding that 

Southern breached her duty of care. 

D. Evidence that Southern was lost, watching 

addresses, and not using her GPS

¶44 Allstate argues that no negligence can be inferred from the evidence 

that Southern was lost or looking for addresses. Allstate also argues that Verkler 

is raising this argument for the first time on appeal.

 

5 The issue in Boutin was whether the evidence was sufficient to sustain a jury verdict 

finding that the theatre owner, in the exercise of ordinary care, reasonably should have known of 

the unsafe condition of the seat, although there was no evidence of how long the defect existed or 

that it existed for so long a period that the theatre manager’s failure to remedy the condition was 

negligence. See id. at 204-05. Based on the evidence in Boutin, our supreme court stated that 

“the determination of when the cushion was removed and by whom rests in sheer speculation. 

The jury may not be permitted to guess.” See id. at 205.
No. 2018AP1531

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¶45 In Verkler’s response to Allstate’s postverdict motion, Verkler 

referred to Southern’s testimony of being “lost” at the time of the accident as 

evidence supporting the jury’s negligence finding. Thus, this argument was 

presented to the trial court. Southern’s testimony included the facts that she was 

looking at addresses and not using her GPS. The evidence that Southern was lost 

in the dark, not using her available GPS, and was looking at the addresses of the 

properties supports the inference that Southern was negligent because her eyes 

were diverted from the road on which she should have been concentrating. Based 

on that evidence, we conclude that the jury could find that Southern was negligent.

E. The U-turn evidence

¶46 Verkler relies on Southern making a U-turn as supporting the finding 

that she was negligent. Allstate argues that Verkler abandoned the U-turn 

argument at trial and there was no evidence about a U-turn during the trial. 

¶47 At trial, Verkler introduced into evidence the statement he made to 

Schnering at the accident scene that he saw Southern make a U-turn before her car 

collided with the truck. Verkler was thoroughly cross-examined at trial on his 

prior statement to Schnering about the U-turn. Verkler testified that he could not 

recall making that statement or whether or not Southern actually made a U-turn. 

In his closing argument, Verkler’s counsel argued that there were two possibilities 

for the crash: either Southern was making a U-turn, and came wide and hit the 

truck; or when Southern was driving north on Howell Avenue, she blacked out, 

veered off the road, and crashed into the truck. 

¶48 We conclude that Verkler did not abandon the U-turn argument. It

was the role of the jury to decide what weight to give the evidence and the 

argument regarding the U-turn. The jury could have properly considered the 
No. 2018AP1531

16

evidence that Southern made too wide a U-turn and hit the truck as evidence of 

negligence. 

F. Blackout evidence

¶49 Allstate also argues that the evidence that Southern blacked out does 

not constitute evidence of negligence. They argue that the blackout “is no[t]

affirmative evidence to substantiate the existence of negligence; it’s merely a lack 

of evidence[] or a hole in the evidentiary record” and that the “[a]bsence of 

evidence is not evidence.”

¶50 Allstate does not develop this argument and it is not the role of this 

court to develop arguments for the parties. See Pettit, 171 Wis. 2d at 646-47

(stating, “[w]e cannot serve as both advocate and judge” and, therefore, declining 

to address the issues). 

CONCLUSION

¶51 For the reasons stated above, we affirm the judgment.

By the Court.—Judgment affirmed. 

This opinion will not be published. WIS. STAT. RULE

809.23(1)(b)(5).