Opinion
No. 5-879 / 05-0708
Filed December 21, 2005
Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.
Betty Joan Lindley appeals from adverse rulings of the district court. REVERSED AND REMANDED.
Dennis Mitchell and David J. Bright of Meardon, Sueppel Downer, P.L.C., Iowa City, for appellant.
Terry J. Abernathy and Stephanie L. Hinz of Pickens, Barnes Abernathy, Cedar Rapids, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Betty Joan Lindley appeals from adverse rulings of the district court. We reverse and remand for a new trial.
I. Background Facts and Proceedings.
In 1994, the Hy-Vee supermarket in Coralville installed new mats in both of its two entryways. The mats consist of a series of gripped slats aligned horizontally with approximately an eighth of an inch gap between each slat, allowing water from ice and snow tracked in by customers to drain away. Each slat is riveted into a recessed metal casing to make the mat level with the rest of the store's flooring.
On March 11, 2001, Betty Joan Lindley fell as she was entering the Hy-Vee through one of these entryways. Lindley claims that some of the slats in the entryway mat were raised or otherwise uneven, catching her foot and causing her to fall forward, injuring her knees and back. At the time of the fall, Lindley was successfully recovering from back surgery, and had been able to enjoy normal activity relatively free of pain. As a result of the fall, Lindley claims her back pain resumed and her mobility was severely limited.
Lindley's daughter, Courtney Bender, who worked for the same Hy-Vee store and who was accompanying Lindley at the time of the fall, stated she spoke to the store's manager soon after the fall and advised him to "at least get some tape to hold [the mat] down." Bender then testified that Hy-Vee employees "went and got tape to put down [the mat]." Lindley testified that duct tape had already been applied to the mat when she returned to Hy-Vee the next day to make an accident report. Lindley did not, however, photograph the mat at that time, and no photographs depicting the entryway at the time of the fall were taken by Hy-Vee.
After reading Lindley's accident report on March 12, 2001, the store's director, Michael Stoermer, inspected the mat in question. Stoermer testified that he saw no defect that would have caused Lindley's fall and that he took no immediate remedial action in response to the accident report.
At some unspecified date, as long as six weeks after her fall, Lindley returned to Hy-Vee to photograph the mat. Although no duct tape had been observed on the mat at the time of the fall, the photographs taken by Lindley show strips of duct tape had been laid along and in between several of the mat's slats. In advance of trial, Hy-Vee successfully sought and obtained an order in limine directing that the photographs showing duct tape and testimony referencing Hy-Vee's post-accident application of duct tape would be excluded from the record as evidence of subsequent remedial measures. See Iowa Rule of Evidence 5.407.
Several photographs of the mat taken by Hy-Vee shortly before trial were offered by Hy-Vee and received in evidence. Stoermer testified (1) these photographs depict the mat in essentially the same condition it had been in since its installation in 1994, and (2) that no parts of the mat shown in the photographs had ever been replaced. These photographs did not show the duct tape illustrated in the pictures offered by Lindley but excluded from evidence.
Lindley sought unsuccessfully during Stoermer's cross-examination to use her photographs showing duct tape on the mat. Lindley's offer of proof included Stoermer's testimony that sometime after Lindley's fall Hy-Vee employees noticed that several of the slats had become loose and had begun to rattle against the metal casing. Stoermer admitted that duct tape was applied as a temporary repair, and that "within days" Hy-Vee had sunk several screws into these slats to complete the repair. Hy-Vee objected and the district court ruled that the photographs were inadmissible evidence of Hy-Vee's subsequent remedial measures.
Lindley did not attempt to cross-examine Stoermer about Hy-Vee's placement of several screws into loose slats after Lindley's fall. As such, the admissibility of such evidence is not before us, and we need not address it.
The district court's decision to sustain the objection did not specifically address whether the duct tape evidence was properly offered to impeach Stoermer's testimony, but instead rested exclusively on the district court's conclusion that it was simply evidence of a subsequent remedial measure excluded under rule 5.407. The rule includes an explicit exception allowing evidence of remedial measures for impeachment purposes. See Iowa R. Evid. 5.407.
On March 21, 2005, the jury returned a verdict finding Hy-Vee was not at fault for Lindley's fall. Lindley now appeals, claiming the district court abused its discretion in refusing to admit the duct tape photographs to (1) demonstrate that Hy-Vee changed the condition of the mat in advance of trial, and (2) impeach store director Stoermer's testimony concerning the condition of the mat as it was depicted in Hy-Vee's photographs taken immediately before trial.
II. Scope and Standard of Review.
We review for abuse of discretion the district court's exclusion of relevant evidence. Hutchison v. Am. Family Mut. Ins. Co., 514 N.W.2d 882, 885 (Iowa 1994). An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). We may uphold the district court's evidentiary ruling on any proper basis urged, though not relied on by the district court. DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002).
III. Discussion.
As a general proposition, "evidence of subsequent remedial repairs is not admissible to prove negligence or culpable conduct" in connection with Lindley's fall. Iowa R. Evid. 5.407. Although this rule is designed to serve public policy by removing evidentiary disincentives to remedy dangerous conditions, rule 5.407 provides an explicit exemption for the use of evidence of subsequent remedial measures for impeachment purposes.
In McIntosh v. Best Western Steeplegate Inn, 546 N.W.2d 595, 597 (Iowa 1996), the plaintiff allegedly fell on an icy parking lot. The district court admitted several photographs of the scene that had been taken by the hotel employees the day after the accident. Id. at 596. None of the photographs portrayed any ice in the vicinity of the fall, and an employee of the hotel testified that the photographs showed the conditions of the parking lot at the time of the fall. Id. The plaintiff, however, was precluded from introducing evidence that the hotel's manager, upon learning of the fall, had immediately instructed the hotel's employees to apply a de-icing agent to the area where the plaintiff had fallen. Id. In reversing, our supreme court found the district court abused its discretion in precluding McIntosh from informing the jury of the hotel manager's directive to apply the de-icing agent. McIntosh, 546 N.W.2d at 597. The McIntosh court stressed that rule 5.407 "is not a general rule of exclusion" and that "[i]t does not preclude that type of evidence from being used to prove other legitimate matters." Id.
Although the McIntosh decision did not define which "legitimate matter" was implicated, a close analysis of the facts of that case yields a striking parallel to the facts in the case before this court. Just as the hotel employee in McIntosh had testified that the hotel's photographs depicted the condition of the parking lot at the time of the accident, Hy-Vee's store director, Michael Stoermer, testified that Hy-Vee's photographs taken shortly before trial depict the mat in essentially the same condition as it had always been in since it was installed in 1994. Stoermer also testified that he had inspected the mat on his hands and knees on March 12, 2001, and had concluded that no immediate remedial action was necessary. However, as we have already discussed, the record on appeal contains evidence that Hy-Vee immediately taped down several loose slats on the mat, which could call into question the veracity of Stoermer's direct testimony. We therefore conclude the district court abused its discretion in excluding all evidence of subsequent remedial measures without considering the impeachment value of such evidence.
Stoermer's direct testimony, unchallenged by evidence of Hy-Vee's subsequent remedial measures, left the jury with the impression that (1) Hy-Vee's photographs accurately depicted the condition of the mat at the time of the accident, and (2) no immediate remedial action was deemed necessary, or taken, by Hy-Vee after receiving Lindley's accident report. Stoermer's direct testimony, therefore, tends to prove no dangerous condition was present at the time of Lindley's fall. Lindley's evidence of Hy-Vee's application of duct tape to the mat was essential under the circumstances to a fair cross-examination of Stoermer. Just as the court in McIntosh concluded that the plaintiff was unfairly prejudiced by the hotel's pictures of the accident scene, McIntosh, 546 N.W.2d at 597, we similarly conclude that Lindley's ability to fairly litigate her claim was prejudiced by the erroneous evidentiary ruling by the district court. Finding Lindley was prejudiced by the district court's error, we reverse and remand for a new trial. See Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 824 (Iowa 2000) (concluding that an abuse of the district court's discretion does not mandate a new trial absent a showing prejudice to the aggrieved party.)
As we have concluded a new trial is required, we decline to address the merits of Lindley's second claim on appeal, in which she contends that regardless of the substance of Stoermer's direct testimony, the district court's ruling in limine improperly prevented her from proving the condition of the mat had changed since the accident. See Blake v. City of Bedford, 170 Iowa 128, 129, 151 N.W.2d 74, 77 (1915) (stating that proof of subsequent remedial measures "is competent to show . . . that the [condition], as it exists at the time of trial, is not in the same condition as when the alleged injury occurred").