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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.
April 17, 2001
                                                                                         A  party  may  file  with  the  Supreme  Court  a
                                                                                         petition  to  review  an  adverse  decision  by  the
                                                               Cornelia G. Clark
                                                                                         Court of Appeals.   See WIS. STAT. § 808.10 and
                                                               Clerk, Court of Appeals
                                                                                         RULE 809.62.
                                                               of Wisconsin
No.                                                            00-2472-FT
STATE OF WISCONSIN                                             IN COURT OF APPEALS
DISTRICT III
RODNEY OLSON AND LAVONNE OLSON,
PLAINTIFFS-APPELLANTS,
V.
JOSHUA A. BERG, LAVERN V. BERG AND MSI
INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.
APPEAL from a judgment of the circuit court for Dunn County:
WILLIAM C. STEWART, Judge.   Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.




No. 00-2472-FT
¶1                                                                                               HOOVER, P.J.1     Rodney and LaVonne Olson appeal a judgment
upholding a jury verdict for loss of  society and companionship damages, but
denying interest on the verdict.   Specifically, they claim the trial court erred when
it prevented LaVonne from testifying about how the loss of her son's relationship
has affected her since his death.   They assert the jury verdict would have been
higher had they been able to introduce the evidence.   They also contend that they
are entitled to interest on the award under WIS. STAT. § 814.04(4).   We conclude
that the trial court did not err and, therefore, we affirm the judgment.
BACKGROUND
¶2                                                                                               Joshua Berg, thirteen years old, and his father, LaVern Berg, were
hunting when Joshua fired at what he thought was a squirrel, but actually was a
man.   The man was the Olsons' twenty-seven year old son, Jason,2 who died as a
result of the gunshot wound.   The Olsons sued the Bergs and their insurer for
wrongful death.
¶3                                                                                               The jury awarded the Olsons $100,000 for their loss of society and
companionship and $12,815.80 for hospital, medical and funeral expenses.   The
court upheld the jury's verdict and denied the Olsons' request for interest on the
verdict.   Because the Bergs' offer of judgment was greater than the jury verdict,3
the court awarded them costs.
1 This is an expedited appeal under WIS. STAT. RULE 809.17.   All references to the
Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
2 The family and counsel refer to him as "Jason."   His given name was Rodney J. Olson,
Jr.
3 The Bergs made an offer of judgment in the amount of $162,815.80 plus the taxable
costs incurred up to April 13, 2000.  After trial, the court entered an award for $112,439.06.
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No. 00-2472-FT
DISCUSSION
¶4                                                                                       The Olsons assert that the parents' emotional and mental well-being
associated with a parent/child relationship is part of what constitutes a claim for
loss of society and companionship.   Citing Shockley v. Prier, 66 Wis. 2d 394, 401,
225 N.W.2d 495 (1975), the Olsons contend that parents should be able to testify
about the effect that the loss has had on them.   In this case, the Olsons sought to
introduce evidence of how Jason's death affected LaVonne's ability to work and
caused her psychological and physical ailments that required medical assistance.
The Olsons contend that this evidence is not merely proof of emotional distress,
excludable under Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 660,
517 N.W.2d 432 (1994).   They argue that the court erred when it excluded this
evidence because it prevented the jury from accurately assessing damages.   We
disagree.
¶5                                                                                       We  will  uphold  a  circuit  court's  decision  to  admit  or  exclude
evidence unless the circuit court has erroneously exercised its discretion.   State v.
Gilles, 173 Wis. 2d 101, 113, 496 N.W.2d 133 (Ct. App. 1992).   We will affirm a
discretionary determination if it is reasonably based on the facts and the proper
legal standard.   See State v. Hereford, 195 Wis. 2d 1054, 1065, 537 N.W.2d 62
(Ct. App. 1995).
¶6                                                                                       The court gave the standard jury instruction, WIS JI—CIVIL 1895:
Society and companionship includes the love, affection,
care,  protection,  and  guidance  the  parents  would  have
received from their child had he continued to live.   It does
not include the loss of monetary support from the child or
the grief and mental suffering caused by the child's death.
In   determining                                                                         [the   Olsons']   loss   of   society   and
companionship,  you  should  consider  the  age  of  the
deceased  child  and  the  ages  of  the  parents,  the  past
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No. 00-2472-FT
relationship between the child and the parents, the love,
affection, and conduct of each toward the other; the society
and companionship that had been given to the parents by
the child, the personality, disposition, and character of the
child, and the extent to which you find the parents will
suffer from the loss.
The   amount   inserted   by   you   should   reasonably
compensate  the  parents  for  the  loss  of  society  and
companionship they have sustained since the death of their
child and the amount you are reasonably certain they will
sustain in the future.                                                                       (Emphasis added.)4
The parties agreed that this instruction was proper.
¶7                                                                                           Historically, courts have been reluctant to compensate plaintiffs for
emotional harm.   Bowen, 183 Wis. 2d at 638.   Wisconsin courts have reversed
verdicts where the jury was not instructed to exclude damages for sorrow and grief
associated with the death of a child.   Prange v. Rognstad, 205 Wis. 62, 65, 236
N.W. 650 (1931).   Additionally, the courts have reduced jury awards that included
compensation for grief.   Crossman v. Gipp,  17 Wis. 2d 54, 60, 115 N.W.  547
(1962).
The distinction between on the one hand witnessing the
incident or the gruesome aftermath of a serious accident
minutes after it occurs and on the other hand the experience
of learning of the family member's death through indirect
means is an appropriate place to draw the line between
recoverable and non-recoverable [emotional distress].
Bowen, 183 Wis. 2d at 658.
¶8                                                                                           Emotional distress is defined as "mental suffering, mental anguish,
mental or nervous shock, or the like.    It includes all highly unpleasant mental
4 Subsequent to the jury trial in this case, the standard jury instruction was modified to
omit the language that forms the substance of the Olsons' evidentiary argument.
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No. 00-2472-FT
reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment, worry and nausea."   Id. at 652-53 n.23.   These damages
are  compensable  under  claims  of  intentional  infliction  of  emotional  distress,
Alsteen v. Gehl, 21 Wis. 2d 349, 356-57, 124 N.W.2d 312 (1963), or negligent
infliction of emotional distress, Bowen, 183 Wis. 2d at 658.   However, the Olsons
have not claimed either intentional or negligent infliction of emotional distress.
Still,  they  contend  that  under  Shockley  this  evidence  is  otherwise  admissible
because WIS JI—CIVIL 1895 allows the jury to consider how the parent suffers as
a result of the loss.
¶9                                                                                                     Shockley does not help the Olsons.   In Shockley, the court allowed a
parent to recover for loss of society and companionship during the child's minority
for a severe, permanent injury.    Id. at  404.    The Shockley court confined its
opinion to whether loss of society and companionship damages were available to a
parent during the minority of an injured child.   Id. at 396.   It did not address what
kind of evidence is admissible for a loss of society and companionship claim and
does not support an award for the Olsons' suffering as a result of their adult son's
death.
¶10    We   conclude   that   the   Bowen   emotional   distress   definition
encompasses the very evidence the Olsons sought to introduce.5   The Olsons have
cited no authority that supports including emotional distress evidence in a loss for
5 In any event, LaVonne was allowed to testify about some of her reactions to Jason's
death, such as persistent crying and not wanting to leave her house even to get groceries.  She was
only prevented from testifying to a clinical diagnosis of chronic depression after the accident, the
necessity of lifelong medication and a causal connection between the accident and depression and
a job change.
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No. 00-2472-FT
society and companionship claim and we find none.   Therefore, the trial court did
not erroneously exercise its discretion when it excluded this evidence.
¶11    Last, the Olsons claim that the trial court erroneously denied interest
on the verdict under WIS. STAT. § 814.04(4).6   Section 814.04(4) defines interest
on the verdict as a "cost" that a plaintiff may recover in certain circumstances.
However, the Olsons ignore WIS. STAT. §§ 807.01(1) and 814.04(7).7   Under these
sections, if the Olsons do not accept the offer of judgment and "fail[] to recover a
6 WISCONSIN STAT. § 814.04 provides in part:
[W]hen allowed costs shall be as follows:
.…
(4) INTEREST ON VERDICT.                                                               [I]f the judgment is for the recovery
of money, interest at the rate of 12% per year from the time of
verdict, decision or report until judgment is entered shall be
computed by the clerk and added to the costs.
7 WISCONSIN STAT. § 807.01(1) provides:
After issue is joined but at least  20 days before the trial, the
defendant may serve upon the plaintiff a written offer to allow
judgment to be taken against the defendant for the sum, or
property, or to the effect therein specified, with costs. If the
plaintiff accepts the offer and serves notice thereof in writing,
before trial and within  10 days after receipt of the offer, the
plaintiff may file the offer, with proof of service of the notice of
acceptance,  and  the  clerk  must  thereupon  enter  judgment
accordingly. If notice of acceptance is not given, the offer cannot
be given as evidence nor mentioned on the trial. If the offer of
judgment is not accepted and the plaintiff fails to recover a more
favorable  judgment,  the  plaintiff  shall  not  recover  costs  but
defendant shall recover costs to be computed on the demand of
the complaint.   (Emphasis added.)
WISCONSIN STAT. § 814.04(7) provides:
JUDGMENT  OFFER  NOT  ACCEPTED.  If  the  offer  of  judgment
pursuant to s. 807.01 is not accepted and the plaintiff fails to
recover a more favorable judgment the plaintiff shall not recover
costs but the defendant shall have full costs to be computed on
the demand of the complaint.
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No. 00-2472-FT
more favorable judgment, the plaintiff shall not recover costs .…"   Id.   Because
the verdict did not meet or exceed the offer of judgment, the Olsons may not
recover costs, which under § 814.04 includes interest on the verdict.   The trial
court properly denied the interest.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
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