Background
On October 2, 2020, an employee of Treider Industries, Inc. (doing business as Tweety’s Complete Painting Service) removed the handrail from the stairway to the basement of Walter and Judith McGuinness’s Milwaukee home to facilitate interior painting. Three days later—on October 5, 2020—Walter fell down that stairway and died from acute cervical spinal cord injuries sustained from blunt force trauma to his head and neck. Judith and their son Daniel heard a thump from elsewhere in the house, found Walter at the bottom of the stairs, and called 911. Walter died from his injuries.
The Estate filed a negligence action in February 2022, arguing that Treider breached its duty of care by leaving the handrail removed for three days without adequately warning the household. At trial, a critical credibility dispute emerged: Treider’s owner Bernard Treider and the employee who removed the handrail claimed for the first time—contradicting their deposition testimony—that warning tape had been placed across the stairway doorway and that Bernard had received a photograph of the tape from his employee. The photograph, however, had been deleted. Judith denied that any such warning was given or tape placed. The circuit court granted the Estate’s request for a modified spoliation instruction, allowing the jury to draw adverse inferences about Bernard’s credibility from the failure to produce the photograph.
The jury assigned 90% of the negligence to Treider and 10% to Walter (contributory negligence for entering the stairway knowing the handrail had been discussed), and awarded $1.5 million for Walter’s conscious pain and suffering and $5 million to Judith for loss of society and companionship. After applying the statutory cap under WIS. STAT. § 895.04(4)—which limits recovery for loss of society and companionship in the wrongful death of an adult to $350,000—and reducing for contributory negligence, the circuit court entered judgment of $1.35 million for the Estate and $315,000 for Judith, for a total of $1,665,000. Treider appealed, and the Estate cross-appealed the constitutionality of the statutory cap.
The Court’s Holding
The Wisconsin Court of Appeals, District I, affirmed the judgment and order in full on both the main appeal and the cross-appeal.
1. Sufficient evidence of causation and damages. The court rejected Treider’s argument that the jury resorted to impermissible speculation. Dr. Alvaro Taveira, an occupational safety expert, opined that Walter fell backward while ascending the stairs due to the absence of the handrail. Engineer Robert Wozniak analyzed the scene and calculated that Walter’s fall lasted at least 1.25 seconds. Dr. Jeffrey Jentzen, a forensic pathologist, found no evidence Walter was unconscious before impact. Dr. Brad Grunert, a psychologist, testified—based on research with more than 1,200 patients—that a fall of 1.25 seconds would cause the victim to experience panic and, if extended to two or more seconds, terror. Together, this testimony provided credible, non-speculative evidence from which the jury could find both how Walter fell and that he experienced conscious pain and suffering. The damages award was upheld as not excessive.
2. Expert testimony properly admitted under Daubert. The circuit court’s Daubert analysis was thorough: it confirmed each expert relied on a reliable methodology and applied it reliably to the facts. Treider’s objection—that the experts did not have eyewitness knowledge of Walter’s precise movements—went to weight, not admissibility. The court declined to exclude reconstruction experts because they could not answer questions only an eyewitness to the fall could answer.
3. Spoliation instruction upheld. The circuit court acted within its discretion in giving a modified instruction allowing the jury to draw adverse inferences about Bernard Treider’s credibility from his failure to preserve or produce the photograph of the alleged warning tape. The court did not abuse its discretion by tailoring the instruction to a credibility inference rather than a substantive adverse inference.
4. WIS. STAT. § 895.04(4)’s $350,000 wrongful death cap is constitutional. The Estate challenged the cap both facially and as-applied, arguing it violated equal protection by treating differently those awarded more than $350,000 for loss of society and those awarded less—and that it created additional inequality because its fixed dollar value has eroded with inflation since it was last set in 1997 (a sum the Estate documented is worth approximately $672,715 in 2024 dollars). The court applied the five-factor rational basis test from Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, and concluded all five criteria were satisfied. It followed Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78, which had upheld a similar medical-malpractice damages cap. The court acknowledged the frustration that the cap has not been inflation-adjusted in nearly 30 years but stated the choice to update the cap belongs to the legislature, not the courts.
Key Takeaways
- A painting contractor who removes a structural safety feature (such as a handrail) from a client’s home without providing documented and consistent warnings may be held liable under Wisconsin negligence law for fatal injuries sustained during the period of removal—even without an eyewitness to the fall—if expert reconstruction evidence supports causation.
- Wisconsin’s Daubert standard permits expert reconstruction testimony based on physical evidence, medical records, and technical analysis even where no witness observed the precise events; challenges to the expert’s assumptions go to weight, not admissibility.
- Wisconsin’s $350,000 statutory cap on loss of society and companionship damages in wrongful death actions involving adults (WIS. STAT. § 895.04(4)) is constitutional under rational basis review—both facially and as-applied—despite the absence of any inflation adjustment since 1997. Revising the cap is a legislative, not a judicial, function.
Why It Matters
This decision carries significance across several Wisconsin practice areas. For personal injury litigators, McGuinness offers a template for building a wrongful death case without an eyewitness: use physical evidence, technical reconstruction experts, and medical examiners to establish both the mechanism of the fall and the victim’s conscious suffering. The opinion also confirms that a spoliation instruction—crafted to affect credibility rather than permit substantive adverse inference—is a calibrated and appropriate sanction when a defendant destroys relevant photographic evidence, even if the destruction is characterized as negligent.
The constitutional ruling on the wrongful death cap will reverberate through Wisconsin plaintiff’s and defense practices alike. The jury awarded Judith McGuinness $5 million for the loss of her husband; she recovered $315,000. The court’s acknowledgment that $350,000 in 1997 is worth roughly $672,715 today—and its frank statement that the legislature, not the judiciary, must act—may be read as an invitation for legislative reform. Until that reform comes, Wisconsin practitioners advising families who have lost adult loved ones must counsel clients that even large jury verdicts for loss of society will be capped at $350,000 by operation of statute. For contractors and their insurers, the case is an equally clear reminder to document any and all warnings provided to homeowners when structural safety elements are removed during renovation work.