Miller
v.
City of Sergeant Bluff

Court of Appeals of IowaMar 12, 2003
665 N.W.2d 439 (Iowa Ct. App. 2003)

No. 2-244 / 01-1082.

Filed March 12, 2003.

Appeal from the Iowa District Court for Woodbury County, DUANE E. HOFFMEYER, Judge.

The defendant, City of Sergeant Bluff, Iowa, appeals, and the plaintiffs cross-appeal, from a district court judgment, following a jury trial, awarding the plaintiffs damages for personal injury. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Michael J. Frey of Hellige, Lundberg, Meis, Eirckson Frey, Sioux City, for appellant/cross-appellee.

Matthew T. Early of Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs Mohrhauser, L.L.P., Sioux City and Robert Gjorvad of Runchey, Louwagie Wellman of Marshall, Minnesota, for appellee/cross-appellant.

Heard by HECHT, P.J., and VAITHESWARAN and EISENHAUER, JJ.


The defendant, City of Sergeant Bluff (City), appeals, and plaintiffs cross-appeal, from a judgment, following a jury trial, awarding the plaintiffs damages for personal injury resulting from a fall on a curb stop. The City contends (1) it had no duty to maintain or inspect the curb stop and thus had no duty to the plaintiffs, (2) there was insufficient evidence to justify the submission of this case to the jury, (3) the district court erred in failing to adopt its proposed jury instructions, and (4) the special verdict form should not have contained a blank for future medical expenses. The City also appeals the district court's denial of its motions for summary judgment and judgment notwithstanding the verdict and new trial.

On cross-appeal, the plaintiffs contend the district court erred in (1) instructing the jury that the landlord of the abutting property owed a duty to plaintiffs, and (2) failing to award them the costs of taking a videotaped deposition after the defendant denied causation and reasonableness of their medical expenses. We affirm in part and reverse in part and remand for new trial on the issue of fault.

I. Backgrounds Facts and Proceedings. On January 3, 1998, plaintiff Harlan Miller tripped over a curb stop shut off valve. The curb stop is located in the city right of way adjacent to his grandson Shawn's rental home. Miller had just exited a vehicle driven by his son-in-law Douglas Lutterman. The fall caused a serious shoulder injury. Miller had been drinking prior to the fall. Jeanette Mustapha was the owner of the rental home.

The City provides water to its citizens by means of a system of underground mains and pipes. The curb stop is a metal shut off valve or box running from the water service line to the ground surface so that the flow of water into a service pipe can be controlled to individual customers. The curb stops are located in city right-of-ways and are accessed only by city employees. City Ordinance No. 90.14 requires that a curb stop be level with the ground. The curb stop in the present case, however, was six to eight inches above ground.

The Millers filed an action against the City, alleging it owed a duty of care to maintain, inspect, and repair any faulty construction of the curb stops. The City, in turn, filed a third-party petition against Mustapha. The district court denied the City's summary judgment motion. At trial, the City argued it had no duty to maintain or inspect the curb stops. The City further argued there was no evidence it installed the curb stops or approved of their installation, and further argued it was immune from suit under Iowa Code section 670.4(3) (1997).

The City also named Shawn Lutterman as a third party defendant. It later named Douglas Lutterman. The Millers later recast their petition to include Jeanette Mustapha, Shawn Lutterman and Douglas Lutterman as defendants.

Although at trial the City asserted it was immune from liability under Iowa Code section 670.4 (1997), it does not raise this issue on appeal. We therefore need not address it.

The Millers introduced evidence that the city had discussed the defective curb stops in a June 1997 meeting, well before Miller's fall. Although the City maintained it sent out notices regarding non-compliant curb stops to abutting property owners prior to Miller's fall, the plaintiffs introduced evidence showing no letters were sent until March 1998, two months after the incident.

Mustapha did not offer a defense and defaulted. Following trial, the district court submitted instructions to the jury. The Millers specifically objected to Instruction No. 18, which set out what they were required to prove for the City and Mustapha to be liable. They argued Mustapha had no legal duty to maintain the curb stops, and that her alleged negligence should not have been submitted to the jury. The Millers also objected to Instruction No. 24, claiming that it created a duty for Mustapha that the legislature did not intend. The Millers additionally maintained the district court's special verdict form improperly left blank the space providing for the amount of future medical expenses. The district court overruled these objections.

Mustapha died during the course of these proceedings and her estate was substituted as a party.

The jury returned a verdict for the Millers in the amount of $130,000, finding the City thirty-seven percent at fault, Mustapha forty percent, and Miller twenty-three percent. The Millers subsequently filed motions for judgment notwithstanding the verdict and for a new trial, asserting the district court erred in submitting the issue of Mustapha's alleged negligence to the jury. The Millers additionally requested expenses for the videotaped deposition of Dr. L.T. Donovan based on the City's failure to admit causation and the reasonableness of their medical expenses. The district court denied the motions and rejected the plaintiffs' request for expenses. The City appeals, and plaintiffs cross-appeal.

II. Jury Instructions. The City argues the district court erred in submitting Instruction Nos. 18 and 20 to the jury, since they erroneously informed the jury it had a duty to exercise ordinary care to inspect the curb stops and had a duty to enforce compliance regarding their maintenance. The City asserts there was insufficient evidence to present these issues to the jury. The Millers contend Instruction Nos. 18 and 24 are flawed since they submitted the issue of Mustapha's negligence despite Mustapha having no legal duty to repair the defective curb stop or warn Miller regarding its presence in the parking lot.

We review jury instructions for the correction of errors at law. Iowa R.App.P. 6.4. The standard of review for jury instructions is whether prejudicial error by the trial court has occurred. Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999). Jury instructions must be considered as a whole, and if the jury has not been misled, then there is not reversible error. Id.

The key issues on both the City's appeal and the Millers' cross-appeal is whether the City had a duty to inspect and maintain the curb stops and whether Mustapha could be charged with such a duty. Iowa Code section 364.12 (2001) governs a city's responsibility for public places. Under section 364.12(2), a city is required to keep all public grounds, streets, and public ways in repair and free of nuisance. However, the statute also carves out several exceptions. Section 364.12(2)(b) provides that the abutting property owner is responsible for the natural accumulation of snow and ice on sidewalks and may be liable for damages for failing to use reasonable care in its removal. Section 364.12(c) provides that the abutting property owner may be required by ordinance to "maintain all property outside the lot and property lines and inside the curb lines upon the public streets, except the property owner will not be required to remove diseased trees or dead wood on the publicly owned property or right-of-way." City Ordinance No. 135.10 mirrors this language, further providing the abutting property owner is liable for grass cutting, tree trimming, weed control, and picking up litter.

Sections 364.12(5) and 364.12(7) indicate the city may cause the repair or replacement of "sidewalks, water stop boxes, and driveway approaches" without prior notice, under some circumstances, and assess the costs of repair to the abutting property owners. City Ordinance No. 90.19 specifically provides that only the water superintendent or his assistants may access the controls to the shut off valves.

Although we have found no Iowa case law directly on point, several Iowa cases are instructive on the legislature's intent to place a duty on a city for negligence under section 364.12. In Peffers v. City of Des Moines, 299 N.W.2d 675 (Iowa 1980), the plaintiff sued the city and the abutting property owner after he fell on an icy public sidewalk. The supreme court, in interpreting Iowa Code section 364.12(2) (1979), ruled that the abutting property owner's duty to remove ice and snow runs not to the traveling public, but to the city. Id. at 677. The court opined that liability of an abutting property owner for injuries to a traveler will not grow out of statutes or ordinances except where such liability is expressly imposed. Id. The court concluded there was no language in section 364.12(2) that expressly imposed liability on the abutting property owner. Id. The court further held it was the legislature's intent to leave the legal responsibility on municipalities for injury to pedestrians caused by negligence in removing snow and ice from sidewalks. Id. at 679.

In Fritz v. Parkinson, 397 N.W.2d 714 (Iowa 1986), plaintiffs filed an action against the county for damages sustained when tree branches from an abutting property owner obscured his vision, causing an accident. The county in turn filed an action against the abutting property owner. Id. In ruling that the abutting property owner had no duty to the public, the court reasoned that when such cases arise, one of the criteria to examine is whether the cause of the damage flowed from a naturally occurring or artificially created condition on the landowner's property. Id. at 717.

In Busselle v. Doubleday, 486 N.W.2d 45 (Iowa Ct.App. 1992), the plaintiff filed an action against the city and the abutting property owner for injuries sustained resulting from a fall on a defective sidewalk. In support of his claims, the plaintiff cited to a city ordinance quite similar to section 364.12(c) and Ordinance No. 135.10 in the present case. Citing to Peffers, the court of appeals concluded that while the legislature amended section 364.12(2)(b) in 1984 to expressly impose liability of snow and ice removal on the property owner, no such liability had been expressly imposed on property owners for defective sidewalks. Id. at 47. The court likewise ruled that section 364.12(c) imposed no duty on the abutting property owner, and that the city was fully liable for injuries resulting from a defective sidewalk.

The common thread in these cases is that under Iowa law, unless a statute or ordinance specifically imposes liability on the abutting property owner, the property owner's duty is owed to the city, not the traveling public. Where, however, the condition causing the accident on a public way emanated from an affirmative act by the property owner, the property owner may be liable for damages resulting from a defective condition. Contra Scott v. City of Sioux City, 255 Iowa 650, 654-55, 123 N.W.2d 402, 405 (1963) (holding that although record revealed the city had exclusive control of valves and that water from terminated valves caused damaged to plaintiff's building, the city had no duty to close the valves). A number of other jurisdictions addressing similar issues appear to support the proposition that an abutting property owner will not be liable to the public for damages resulting from a defective condition on a city right-of-way unless the statute or ordinance specifically imposes such duty or the property owner caused the defective condition. See Hausser v. Giunta, 669 N.E.2d 470, 471 (N.Y. 1996) (finding the city, not the abutting property owner, is liable for damages sustained in a curb stop fall unless the property owner caused the defect or state statute specifically imposed such a duty); Jackson v. City of Philadelphia, 782 A.2d 1115, 1118-19 (Pa.Commw.Ct. 1991) (holding the city not liable for damages resulting from a fall on a curb stop valve in a public right-of way where city introduced evidence the abutting property owner owned the curb stop valve); Wilson v. City of New Haven, 567 A.2d 829, 831-32 (Conn. 1989) (determining a municipality may not shift liability to a landowner for an injury resulting from a defective condition on a public way except either by specific statute or ordinance or where there is a showing the landowner's actions created the defect); Rooney v. City of Long Beach, 345 N.Y.S.2d 66, 72 (N.Y.App.Div. 1973) (holding the city, not the abutting property owner, liable for damages sustained in curb stop fall where specific statute provides no city shall have power to adopt local laws transferring to abutting property owner liability for failure to maintain curb stops).

We believe, based on the language of section 364.12, the legislature did not intend for liability to be transferred to an abutting property owner except by specific statute. The City has not pointed to any language in section 364.12 that specifically imposes a duty on the property owner to maintain and inspect the curb stops. The City, however, maintains that Ordinance Nos. 90.12 and 135.10 specifically place responsibility for curb stops with the property owner. While Ordinance No. 90.12 provides that the property owner shall be responsible for the maintenance and installation of the water service pipe, the parties agree that the property owner owns the water service line, but that ownership of that line terminates at the junction where the line connects with the curb stop. City Ordinance No. 90.19 specifically provides that the City has sole power to turn the curb stop on or off. We believe the City was liable for any damages resulting from a fall caused by the curb stop.

There is evidence the City was aware of the potential problems with the curb stops months before Miller's accident. Although the City claimed it sent out notices to property owners regarding the potential problem prior to the accident, the Millers introduced evidence indicating no letters were sent until two months after the fall. While Miller's son informed him of the curb stop's location, Miller had only been to the location a few times, and the accident happened in darkness. Although the City maintained it had no knowledge of the defective curb stops prior to the fall, Roger Groves, the City maintenance supervisor, testified that City employees often took meter readings at the site. The City had exclusive control of the curb stop valves, and they were located in a City right-of-way. We therefore reject the City's contention the district court erred in instructing the jury regarding its duty to maintain and inspect the curb stop valve. There was sufficient evidence in the record to submit the issue of the City's negligence to the jury. For the same reasons we conclude the district court erroneously submitted the issue of Mustapha's negligence. There is no evidence Mustapha contributed toward the defective condition of the curb stop valve, and no statute or ordinance specifically imposes such a liability on the property owner. We therefore reverse and remand this case for a new trial on the issue of fault. We do not believe it is necessary to retry the issues concerning the total amount of Miller's damages, since we do not assume any error committed on the apportionment of fault could corrupt the jury's determination on the issue of damages. Schwennen v. Abell, 430 N.W.2d 98, 104 (Iowa 1988). Upon retrial the amount of Miller's damages will be the amount established by the jury in the original trial.

The City also contends the district court erred in failing to submit its proposed instructions. The City argues the jury should have been instructed that the City could not be held liable for damages resulting from a dangerous condition arising from the operation of a water service system "until and unless it has actual or constructive notice and the opportunity to correct it." The City also requested the jury be instructed "[a] municipality is not an insurer of the condition of its drains and watercourses and is liable only for negligence in the performance of its duty to the public."

We believe the City waived these instructions when it failed to abide by the terms of the pretrial order which provided that all instructions were to be submitted to the trial court prior to trial, except for those issues that unexpectedly arose. These instructions were not requested until after the close of all the evidence. However, even assuming the district court erred in failing to submit the instructions, we conclude the City suffered no prejudice since the concepts in the proposed instructions were embodied in other instructions. See City of Cedar Falls v. Cedar Falls Cmty. School Dist., 617 N.W.2d 11, 20 (Iowa 2001). We find no error here.

III. Fees. The Millers assert the district court abused its discretion in declining to award them the costs of a videotaped deposition of Dr. L.T. Donovan. They maintain the defendant wrongly denied its causal link to the fall and the reasonableness and necessity of their medical expenses. They contend that because the City denied causation and reasonableness of medical expenses, Dr. Donovan's deposition became more costly because it required more extensive questioning.

Iowa Rule of Civil Procedure 1.517(3) provides that, except under four exceptions, if a party fails to admit to the truth of any matter asserted in the request for admissions, and the other party proves the truth of those matters, the requesting party may seek an order requiring the other to pay the reasonable expenses incurred in making that proof. The four exceptions noted in Rule 1.517(3) are (1) the request was held objectionable, (2) the admission sought was of no substantial important, (3) the party failing to admit had reasonable grounds to believe they might prevail on the matter, and (4) there were other good reasons for the failure.

In the present case, based on the evidence, we cannot say the City was totally unreasonable in believing it might prevail on the issue of causation. Because the district court ultimately has discretion in awarding costs of depositions, and because the City was not unreasonable in denying causation, the district court did not abuse its discretion in declining to award the Millers such costs. EnviroGas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency, 641 N.W.2d 776, 786 (Iowa 2002).

IV. Future Medical Expenses. The City lastly contends the district court erred in submitting a special verdict form containing a blank for future medical expenses. The City argues that Dr. Donovan's testimony regarding the possibility that Miller may have to undergo surgery does not meet the threshold for the jury's consideration of medical expenses. We disagree.

According to Dr. Donovan's testimony, Miller's condition will ultimately deteriorate, potentially requiring surgery to correct it. Dr. Donovan testified to a medical degree of certainty that Miller's shoulder injury is related to an arthritic condition resulting from his injury. Miller testified he continues to have pain in his shoulder when he sleeps on it. We believe this is sufficient to submit the issue of future medical expenses to the jury. Miller need not accurately determine the cost of future medical treatment but may instead offer the opinion of a qualified witness upon which the jury may reasonable fix an allowance. Nesbit v. Myers, 576 N.W.2d 613, 614 (Iowa Ct.App. 1998). We find no error here.

V. Conclusion. The district court did not abuse its discretion in failing to award the Millers costs associated with the videotaped deposition, nor did it err in submitting a special verdict form for future medical damages. The submission of the City's liability was correct, however, the district court erred in submitting the issue of Mustapha's liability to the jury. Accordingly, we reverse and remand for new trial on the issue of fault, but affirm the jury's damages award.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.