Opinion
No. 1-1010 / 00-2012.
Filed March 13, 2002.
Appeal from the Iowa District Court for Delaware County, LAWRENCE H. FAUTSCH, Judge.
Appellants appeal from an adverse verdict in a personal injury action. AFFIRMED.
Joseph Bitter of Bitter Law Offices, Dubuque, for appellants.
Guy Cook of Grefe Sidney, Des Moines, and David Riley of Yagla, McCoy, Riley, P.L.C, Waterloo, for appellees.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Plaintiffs appeal from a jury verdict in favor of defendants in a personal injury action. We affirm.
I. Factual Background and Proceedings. On October 27, 1996, Randy Brooks sustained injuries while insulating the roof of a building located on his property. Brooks fell approximately fourteen feet to the concrete floor from a plank he had placed across two 2" x 4" "lateral spacers." He sustained serious injuries to his lower extremities. On March 24, 1997, Brooks and his wife sued Lester Building Products, the designer of the structure and supplier of the building materials, and Bob Holtz, the contractor who built the structure. Plaintiffs alleged negligence and strict liability theories against the defendants and claimed damages for personal injuries and loss of consortium.
Plaintiffs claimed a defective lateral spacer supplied by Lester and installed by Holtz caused their damages. In particular, plaintiffs claimed the spacer was defective because it had been weakened by several cuts that caused it to break when the weight of the plank and Brooks's body were placed upon it. Following a jury verdict in favor of defendants, plaintiffs appeal claiming the district court erred in (1) excluding certain evidence, (2) instructing the jury on the definition of "defective," (3) refusing to permit the jury to have access to a video tape during their deliberations, (4) engaging in ex parte communication with the jury during its deliberations, and (5) failing to grant a new trial on the ground the jury's deliberations were inadequate in duration. Additional facts will be presented below as necessary in our discussion of these assignments of error.
II. Scope and Standards of Review. We review challenges to the admission of evidence for an abuse of discretion. State v. Query, 594 N.W.2d 438, 443 (Iowa Ct.App. 1999). We review a trial court's formulation of jury instructions for errors of law. Sheets v. Ritt, Ritt Ritt, Inc., 581 N.W.2d 602, 604 (Iowa 1998); Shinn v. Iowa Mut. Ins. Co., 610 N.W.2d 538, 541 (Iowa Ct.App. 2000). We review the trial court's rulings with respect to trial administration (jury's access to exhibits, communication with the jury and duration of jury deliberations) for an abuse of discretion. Heth v. Iowa City, 206 N.W.2d 299, 303 (Iowa 1973).
III. Evidentiary Ruling. Plaintiffs offered in evidence Exhibit S, a letter written by their counsel to defendants' attorneys. The letter dated October 15, 1999 covered a wide variety of topics including plaintiffs' counsel's (1) assessment of the merits of the case, (2) characterization of the substance of the expected testimony of Terry Brady, a witness who responded to the 911 call, and (3) comments about settlement negotiations. A copy of the letter was also delivered to Brady, who signed it attesting he "agree[d] with the facts set forth therein."
It is undisputed that Brady had two opportunities to observe the inside of the building in question. The first of these was on the day Brooks was injured, and the second was on October 5, 1999 when Brady returned to the building at plaintiffs' request. The parties sharply disagreed about the substance and significance of what Brady observed on these two occasions. Defendants contended Brady observed a very small indentation or crack in a spacer, but no broken spacers. Plaintiffs contended Brady saw no broken spacer because he failed to look in the location where Brooks fell.
In his trial testimony, Brady testified he observed a spacer with "a small crack or indentation" but no broken spacers inside the building on the day of the incident. Plaintiffs then offered Exhibit S to impeach Brady by demonstrating his affirmation in Exhibit S of plaintiffs' counsel's assertion Brady (1) saw no bowed spacers in the building, and (2) failed to see a broken spacer because he failed to look in the correct location. Defendants objected on hearsay grounds and contended the letter included inadmissible references to settlement and plaintiffs' counsel's opinions on the merits of the case. Plaintiffs' counsel offered during a record colloquy to redact references to settlement and other inadmissible matters.
We conclude the district court correctly sustained defendants' objections to the exhibit. It contained inadmissible references to settlement negotiations and contained extensive and irrelevant commentary by plaintiffs' counsel. Although plaintiffs' counsel offered to redact certain inadmissible declarations from the letter, a redacted copy of the letter was not marked and offered in evidence, and we are unable to discern from the record which portions of the document plaintiffs intended to offer. Accordingly, error was not preserved on the district court's ruling on a redacted version of the letter. See State v. Vincik, 398 N.W.2d 788, 796 (Iowa 1987) (noting proponent's failure to make offer of proof will preclude the appellate court from determining the issue of admissibility of the evidence).
Plaintiffs also challenge the district court's ruling precluding them from examining Brady "in regard to any portions of [the exhibit]." We assume for purposes of our analysis that the ruling prohibited plaintiffs from using the letter for all purposes including impeachment. Because Brady confirmed by his signature the factual assertions contained in the writing, we believe the district court erred in prohibiting plaintiffs from examining the witness "in regard to any portions of [the] letter." We find persuasive plaintiffs' assertion that a reasonable juror might view Brady's affirmation of portions of the letter to be inconsistent with his trial testimony. However, we conclude plaintiffs suffered no prejudice from the district court's ruling because they had other available means to challenge Brady's testimony. See State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999) (noting that even when an abuse of discretion is found, reversal is required only when prejudice results). In particular, the record suggests Randy Brooks was present on October 5, 1999 when Brady allegedly made statements inconsistent with his trial testimony. Thus, if they wished to impeach Brady, plaintiffs could have done so without reference to Exhibit S. Brooks was available to testify Brady made statements attributed to him in Exhibit S. Accordingly, we find no reversible error on this issue.
We acknowledge defendants' assertion that Brady claimed in his testimony during the offer of proof that he did not carefully read the letter before signing it and that he viewed it as a mere summary rather than as sworn detailed testimony. However, these characterizations by Brady go to the weight rather than the admissibility of any declaration inconsistent with his trial testimony.
IV. Jury Instruction Issue. Plaintiffs challenge the jury instruction defining defectiveness. They assert the instruction erroneously required them to prove both that the spacer failed to perform reasonably, adequately and safely (1) in the normal or specified intended use intended by the defendants, and (2) in a manner reasonably foreseeable to the defendants. Plaintiffs requested the district court to insert "or" between the first and second paragraphs of the instruction to clarify plaintiffs could recover even if they failed to prove Brooks was injured while using the spacer in a manner intended by defendants as the normal or specified use.
Instruction No. 22, a verbatim rendition of Uniform Instruction No. 1000.4, informed the jury in relevant part as follows:
A product is defective if does not perform reasonably, adequately and safely:
1. In the normal or specified use intended by the defendant.
2. When it is used in a manner reasonably foreseeable by the defendant . . .
We read the court's instructions as a whole when determining whether the district court erred in instructing the jury. Grefe Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994). We note Instruction No. 21, the marshalling instruction on product liability, informed the jury of plaintiffs' burden to prove the product was used "in the intended manner or in a manner reasonably foreseeable by Defendant Lester . . ." (emphasis supplied). When read together with the marshalling instruction, we believe the court's use of the Uniform Instruction defining defectiveness sufficiently informed the jury of the applicable law. Accordingly, we affirm on this issue.
V. Jury Access to Videotape. Randy Brooks's brother and son prepared a videotape which plaintiffs claim documented the broken and defective condition of the spacer. The videotape was received in evidence and was shown to the jury during the trial. Plaintiffs assert the district court erred in refusing to send the tape to the jury room for the jury's use during deliberations. We disagree. The district court is vested with considerable discretion to decide whether the jury should have access to exhibits during deliberations. See State v. Baumann, 236 N.W.2d 361, 366 (Iowa 1975); Mongar v. Barnard, 248 Iowa 899, 910, 82 N.W.2d 765, 773 (1957). Depositions are generally excluded from the jury room because of the risk that testimony contained in them might be overemphasized to the exclusion of other evidence. Baumann, 236 N.W.2d at 366. We conclude the information in the videotape might similarly have been overemphasized by the jury. Accordingly, we find the district court did not err in excluding the videotape from the jury room and affirm on this issue.
VI. Court's Communication with Jury. On Friday, October 13, 2000, the case was submitted to the jury at approximately 3:30 p.m. At 4:28 p.m., the court summoned the jurors to the courtroom and informed them of his plan to send them home for the weekend. One of the jurors informed the court of schedule conflicts that would make it difficult for her to resume deliberations on the following Monday; and another juror asked the court if there was any reason why the jury could not return to the jury room and continue their deliberations. At 4:33 p.m., the court permitted the jury to resume their deliberations. The jury returned a verdict at 4:53 p.m. the same day.
Plaintiffs contend these communications between the district court and the jury constitute reversible error. We disagree. We first note that the conversation was between the court and all jurors. Moreover, the communications were reported and their entire subject matter was directly related to proper administrative matters. Under the circumstances of this case, no possibility of prejudice to plaintiffs from the communications is evidenced in the record. See Ragee v. Archbold Ladder Co., 471 N.W.2d 794, 796-97 (Iowa 1991) (holding conversation between judge and jury did not warrant new trial as it was reported and between entire jury); State v. Atwood, 602 N.W.2d 775, 778 (Iowa 1999) (declining to adopt a per se rule mandating any communications between judge and jury as reversible error). Accordingly, we affirm on this issue.
VII. Duration of Jury Deliberations. Plaintiffs next contend the short duration of the jury's deliberations "might well be an indication that the jury felt that the Judge had some attitude about the case that might have affected the results." We find no evidence of such a judicial attitude in the record. Plaintiffs cite no authority for the proposition that the duration of jury deliberations in this case is a ground for reversal and therefore have waived error. Iowa R. App. P. 6.14(1)(c). Accordingly, we find no reversible error on this issue.
AFFIRMED.