Opinion
No. 2-503 / 01-1908
Filed February 12, 2003
Appeal from the Iowa District Court for Jackson County, Charles H. Pelton, Judge.
Defendant property owner appeals the judgment for plaintiff in this slip-and-fall tort action. AFFIRMED.
Scott Nelson, David Hammer, and Angela Simon of Hammer, Simon Jensen, Dubuque, for appellant.
Mark Beckman, Dubuque, for appellee.
Richard K. Whitty of O'Connor Thomas, Dubuque, for third-party defendant.
Heard by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Defendant property owner appeals the judgment for plaintiff in this slip-and-fall tort action. Leisure Lake, Inc., claims: (1) the district court erred in denying its motions for directed verdict and judgment notwithstanding the verdict; (2) it is entitled to a new trial; and (3) it was prejudiced by the jury instructions. We affirm.
I. Background Facts Proceedings
On January 18, 1999, Suzanne McCloy drove to Sue's Hallmark in downtown Maquoketa. She parked across the street, slightly diagonal, to the store. She noticed the sidewalk in front of the store had been treated with salt pellets. As she left the store, she walked in a slightly different route than she took entering the store. McCloy slipped and fell on ice on the sidewalk in front of the APAC building, which was owned by Leisure Lake.
McCloy suffered injuries as a result of the fall. She has persistent, severe headaches. An occipital stimulator was placed in McCloy's body in an effort to block the pain. McCloy testified the occipital stimulator reduced her pain, but did not eliminate it. McCloy also had surgery for a ruptured disk in her neck. She has been diagnosed with dysthymia (depression) and somatoform disorder (a mental disorder) since the accident.
McCloy filed suit against Leisure Lake, alleging it was negligent by allowing snow and/or ice to accumulate on the sidewalk. Leisure Lake filed a third-party claim against APAC Customer Services, Inc. A jury returned a verdict assessing fault forty percent to McCloy and sixty percent to Leisure Lake. Total damages of $200,928.09 were awarded. Leisure Lake appeals.
II. Directed Verdict and Judgment Notwithstanding the Verdict
Leisure Lake contends the district court should have granted its motions for directed verdict and for judgment notwithstanding the verdict. It claims (1) the icy condition of the sidewalk was open and obvious; (2) McCloy voluntarily chose an unsafe, alternative route; (3) it did not have a reasonable time after the cessation of the storm to clear the ice; and (4) McCloy did not sufficiently show Leisure Lake's actions were a proximate cause of her injuries.
Our review of rulings on motions for directed verdict and for judgment notwithstanding the verdict is for correction of errors at law. Iowa R.App.P. 6.4. In considering both motions, we inquire whether substantial evidence exists to support the plaintiff's claim, justifying submission of the case to the jury. Channon v. United Parcel Serv., 629 N.W.2d 835, 839 (Iowa 2001). Evidence is substantial if a jury could reasonably infer a fact from the evidence. Balmer v. Hawkeye Steel, 604 N.W.2d 639, 640 (Iowa 2000). A motion for judgment notwithstanding the verdict must stand or fall on the grounds asserted in the motion for directed verdict. Channon, 629 N.W.2d at 839.
We determine there was sufficient evidence to submit each of the issues in contention to the jury. As the district court stated:
[E]ach of the grounds urged by Leisure Lake are fact questions and it would be error for the Court to accept Leisure Lake's invitation to rule as a matter of law when it has a nice jury here who can rule as a matter of fact and eliminate the error.
We find no error in the district court's denial of the motions for directed verdict and for judgment notwithstanding the verdict.
III. Motion for New Trial
Leisure Lake claims it is entitled to a new trial because the jury's verdict was the result of passion or prejudice. The district court may grant an aggrieved party a new trial when the jury awards excessive or inadequate damages, or when the verdict is not sustained by sufficient evidence, or is contrary to law. Iowa R.Civ.P. 1.1004(4), (6).
Leisure Lake first asserts the jury's finding of liability is the result of passion and prejudice. It claims the verdict is not supported by the evidence and is contrary to law. See Iowa R.Civ.P. 1.1004(6). As we noted above, however, there was sufficient evidence to submit the case to the jury. We find Leisure Lake is not entitled to a new trial on this ground.
Leisure Lake also asserts the damage award is excessive and lacks evidentiary support. See Iowa R.Civ.P. 1.1004(4). A district court ruling on a motion for new trial based on the size of the verdict is reviewed for abuse of discretion. Foster v. Ankrum, 636 N.W.2d 104, 107 (Iowa 2001). We will not ordinarily disturb the district court's decision unless an abuse of discretion is shown. Fisher v. Davis, 601 N.W.2d 54, 57 (Iowa 1999). We find no abuse of discretion under the facts of this case. The jury's award of damages is supported by the evidence. As the district court noted, "there is no evidence that it was the result of passion, prejudice, or sympathy, and a reasonable jury could, from the evidence, reach the result that it did."
IV. Jury Instructions
Leisure Lake contends it was prejudiced because the jury did not receive certain instructions. Our standard of review concerning alleged error with regard to jury instructions is for correction of errors at law. Iowa R.App.P. 6.4; Duncan v. City of Cedar Rapids, 560 N.W.2d 320, 325 (Iowa 1997). We review jury instructions to decide if they are a correct statement of the law and are substantially supported by the evidence. Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). Error in giving or refusing to give a particular instruction does not warrant reversal unless the error is prejudicial to the party. Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). We are reluctant to disapprove uniform instructions. State v. Johnson, 534 N.W.2d 118, 127 (Iowa Ct.App. 1995).
The district court used the Uniform Civil Jury Instructions on sidewalk liability, which state:
The owner of land next to a sidewalk must remove, within a reasonable amount of time, snow and ice that has naturally accumulated on the sidewalk. The owner must exercise ordinary care in removing snow and ice.
The plaintiff, Suzanne M. McCloy, must prove that the owner knew about the natural accumulation of snow and ice, or that it existed long enough for the owner to have discovered and removed it in the exercise of ordinary care.
A violation of this law is negligence.
Leisure Lake asked for additional language stating it should have "a reasonable time after cessation of the storm" to clear its sidewalk, instead of the language in the uniform instruction, which states, "a reasonable amount of time." As noted above, we are reluctant to disapprove uniform instructions. See Johnson, 534 N.W.2d at 127. We find no prejudice in the instruction as given.
Leisure Lake also requested an instruction stating that the standard of reasonable care of a property owner does not require the premises to be free from all defects. The district court stated it was giving the more specific instruction concerning sidewalk liability, instead of the general instruction requested by Leisure Lake. As the district court correctly noted:
I didn't think [the proposed instruction] had a specific application to this case because this was a fall down case on a sidewalk, and we have more specific instructions for fall down on a sidewalk in Iowa readily available in the uniform instructions, and I went with the more specific instructions than the more general instructions on keeping your property reasonably safe for invitees, and so that's why I did it, and so I thought it was unnecessary to go back to the general instruction, and so that objection should be overruled.
We find no error in giving the uniform instructions on sidewalk liability in this case.
Finally, Leisure Lake requested an instruction regarding the law of safe alternative route. The district court determined this instruction would be confusing, and the subject was already covered in other instructions. The subject was included in Instruction No. 15, which stated in part, "In this case Defendant, Leisure Lake, Inc., claims that Plaintiff, Suzanne M. McCloy, unreasonably failed to take action to avoid an injury because she failed to avoid an open and obvious danger or to take a safe alternative route." Instruction No. 19 also listed "failed to take a safe alternative route," as one type of contributory negligence. We consider all of the instructions together, not piecemeal or in artificial isolation. State v. Simpson, 528 N.W.2d 627, 632 (Iowa 1995). We determine the issue of safe alternative route was adequately covered in the instructions which were given to the jury. Leisure Lake has failed to show it was prejudiced because this subject was not covered in a separate instruction.
We affirm the decision of the district court.