Opinion
No. 3-948 / 03-0418.
Filed January 14, 2004.
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
Plaintiffs appeal the district court's order for a new trial on the issue of liability. REVERSED.
David Dutton and Carolyn Rafferty of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellants.
Tara Moffitt and Martha Shaff of Betty, Neuman McMahon, L.L.P., Davenport, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Peggy and Allan Sells appeal the district court's order granting a new trial on the issue of liability. Because we find no compromise in the verdict in regards to fault, we reverse.
Background Facts.
On the morning of December 23, 2000, Peggy Sell slipped and fell on ice and snow on the sidewalk in front of Hy-Vee in Cedar Falls. Peggy fractured three bones in her ankle and dislocated the joint of the ankle. As a result, Peggy and her husband, Allan, filed a petition for damages against the owner of the premises, Landau Heyman of Iowa, Inc. (Landau), for its negligence causing injury to Peggy and loss of consortium for Allan.
The Sells included Hy-Vee Food Stores in the petition but the district court granted Hy-Vee's motion for a directed verdict at the close of the Sells' evidence. Landau filed a third-party petition against a snow removal company, Christy Corporation, but dismissed the claim without prejudice after the close of all evidence.
The jury's initial return of the verdict, Form No. 1, found Landau one-hundred percent at fault and a proximate cause of Peggy's damages. It awarded her $15,096.94 in past medical expenses but did not award her any damages for past pain and suffering. On Verdict Form No. 2, it found Landau was not at fault nor was it the proximate cause of any damage to Allan, on his consortium claim. Noting the inconsistency in the finding of fault, the district court sent the jury back into deliberations. The jury returned finding Landau one-hundred percent at fault on both Peggy's and Allan's claims, but still not finding Landau's conduct to be a proximate cause of any damage to Allan. It also added $1.00 for Peggy's past pain and suffering.
Subsequently, the Sells filed a motion for additur or in the alternative, a new trial on the issue of damages; Landau filed a motion for judgment notwithstanding the verdict or in the alternative, a new trial on the issue of liability asserting Peggy should have been assigned a percentage of fault. Both parties filed a resistance to each others' motions. The district court granted both motions and ordered a new trial on the issues of both liability and damages. The Sells appeal solely as to the grant of a new trial on the issue of liability.
Scope of Review.
In ruling upon a motion for new trial, broad but not unlimited discretion is vested in the trial court, Iowa R. App. P. 6.14(6)( c), and the grant of a new trial will not be disturbed unless an abuse of discretion is shown. McConnell v. Aluminum Co. of Am., 367 N.W.2d 245, 248 (Iowa 1985). We are more reluctant to interfere with the grant of a new trial than its refusal, Iowa R. App. P. 6.14(6)( d). Furthermore, we will not find an abuse of discretion unless it is shown that the trial court's discretion was exercised on grounds clearly untenable or to an extent clearly unreasonable. State v. Brumage, 435 N.W.2d 337, 341 (Iowa 1989).
Discussion.
Both parties agree the district court correctly granted a new trial on the issue of damages. However, the Sells argue that the district court erred in granting a new trial on the issue of liability as the evidence did not establish that the jury's assignment of fault was compromised. Landau disagrees contending there was substantial evidence of comparative fault and a compromise verdict on the liability issue.
Finding the first return of the verdict forms to be inconsistent, the district court explained to the jury,
[Y]ou have answered on Verdict Form No. 1 [Peggy's claim] that the defendant was at fault and on Verdict Form No. 2 [Allan's claim] that the defendant was not at fault. So what you might want — what I want you to do is just re-read your instructions. You know, there's a difference between fault and damages. You know, if you're determining fault, it should be consistent as far as damages are concerned. That is another question. So I can understand what you did here, and you may want to take another look at that and — and read the entire verdict form.
. . . I'm going to ask you to do a little more work and I'm going to return the verdict forms to you and ask that you re-read your instructions and carefully consider those, and those are my instructions for you this afternoon.
After further deliberations, the jury returned the verdict forms indicating Landau was at fault on both claims, but its fault was not a proximate cause of any damage to Allan. The jury also awarded Peggy one dollar for past pain and suffering.
In granting the new trial on both liability and damages, the district court stated,
Each of the parties to this case is entitled to a fair trial that includes careful consideration by the jury of all issues submitted to it. The verdicts of the jury, when taken as a whole, do not effectuate substantial justice between the parties and therefore must be set aside. The Court can only conclude that the jury wholly failed to follow the Court's instructions when considering fault, percentages of fault, and damages. Substantial justice can only be effected by granting both the plaintiffs and the defendant a new trial.
As a general rule, new trials will be granted as to the whole case and on all of the issues, and seldom on the issue of damages only, except where liability of a defendant is definitely established. Household v. Town of Clayton, 221 N.W.2d 488, 493 (Iowa 1974) (finding that the evidence raised a strong suspicion that the jury award was the result of a compromise involving the question of liability). See also Thompson v. Allen, 503 N.W.2d 400, 402 (Iowa 1993) (finding no evidence that the determination of fault was compromised by the determination of damages); Cowan v. Flannery, 461 N.W.2d 155, 160 (Iowa 1990) (finding no evidence that the jury's determination of fault was compromised or affected by the evidence of damages); Witte v. Vogt, 443 N.W.2d 715, 717 (Iowa 1989) (finding no reason for resubmission of the liability issue on remand where the jury assigned one-hundred percent fault to defendant); Vorthman v. Keith E. Myers Enter., 296 N.W.2d 772, 778 (Iowa 1980) (holding that because liability was definitely established, it would be unfair to require a new trial on all issues). However, if there is no evidence in the record that the jury's determination of fault was compromised or affected by the evidence of damages, the issue of liability should not be resubmitted on remand Thompson, 503 N.W.2d at 401 (citations omitted).
There is no indication in the verdict forms that the jury compromised to find fault of Landau as it pertained to Peggy's injuries. During the second deliberation, the only fault that was changed was to also find Landau at fault as to Allan's claim, but it still found no proximate cause of such fault to Allan's claim of damages. It appears the jury simply did not find Allan's claimed damages for loss of consortium to be compensable, in spite of a finding of fault. We do not think this is so inconsistent so as to retry the issue of Landau's liability. The only inconsistent evidence Landau points us to in the record that could be the basis of assigning a percentage of the fault to Peggy was a deposition statement she made:
Well, my thought was just I had to hurry, I had to get home. I was scheduled for some things but I thought better — but I thought I better stop. I had to get these few groceries, so that was it.
There is no testimony that she was negligent or walking across the parking lot in a hurried fashion. Just the contrary. She testified she was aware of the precarious surface, was wearing snow boots, and was very carefully traversing the parking lot.
Because the only inconsistency is the nominal award of pain and suffering damages to Peggy, we reverse the granting of a new trial on the issue of Landau's liability such that a new trial shall be solely limited to the issue of damages.