Opinion
No. 1-641 / 00-1663.
Filed January 28, 2002.
Appeal from the Iowa District Court for Washington County, DAN F. MORRISON, Judge.
Plaintiffs appeal the district court's judgment, in this tort suit tried to the court, finding the defendants did not violate any standard of care. AFFIRMED.
Karen Harris Humphrey of Law Office of Karen Harris Humphrey, Des Moines, and Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, for appellants.
Thomas J. Logan of Hopkins Huebner, P.C., Des Moines, for appellees.
Considered by HAYDEN, P.J., and C. PETERSON, and HARRIS, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Melissa Shepherd is the mother of Katarina A. Brown (Katarina), born November 17, 1993. Melissa Shepherd was employed by the United Presbyterian Home. United Presbyterian Home operated the Up With Kids Day Care Center at the same location in Washington, Iowa. Katarina attended the Up With Kids Day Care Center.
On July 18, 1996, Katarina was on the playground of this facility. She fell from a "belt swing" and broke her left leg. She was two and a half years old at this time. Melissa testified it was her understanding Katarina would be in the infant seat, or the bucket seat, if she was being swung. Further, she believed if Katerina was placed in a regular swing she would be held, so she would not be swinging way up in the air or anything dangerous like that. At the time of the accident there were six children in the playground area. Theresa Horak and Jenni Byerly were employees on the playground supervising or looking after the children. They did not testify at the trial. The description of the accident as shown on the accident report is as follows: she (Katarina) was swinging on big swing, let go of chains and fell out forward onto the ground-landed on left side of her body-hurt leg. The accident report was dated July 18, 1996, and signed by Amy L. Malloy, Theresa Horak and Jenni Byerly.
Plaintiff's Exhibit 5 is a transcript of telephonic deposition of Marilyn Adam, taken February 21, 2000. In her deposition Adam stated she received a bachelor's degree from the University of Iowa in 1980. She majored in painting and drawing and later obtained a teaching certificate in art education. She took some graduate work in elementary education. Following this, she worked as a teacher for four and five year old children at the Melrose Day Care Center. Beginning in 1982 she operated her own day care center for fifteen years. Adam stated she was testifying from the incident report, the Up With Kids report and the photos of the scene. Also, she had reviewed some documents regarding tips for public playground safety from the Consumer Product Safety Commission. She did not testify she had inspected the premises where the accident occurred. She further stated for children over the age of two she had placed mulch in the "fall zone" area under the swings. She preferred hard, flat swings over the rubber ones that come up around your body. She indicated a day care provider should know the abilities of each child in their care and since Katarina let go of the swing and fell onto the ground there must have been inadequate supervision.
This case was tried to the district court on August 29, 2000. The court ruled the record failed to establish defendants violated any standard of care. They were in compliance with State requirements regarding the ratio of supervisors to children. There was no evidence as to what occurred on the playground except the accident report, which indicates Katarina let go of the swing. There was no competent evidence the defendants acted any differently than a parent of ordinary prudence under comparable circumstances would have acted. The court dismissed plaintiffs' petition. Plaintiffs appeal. We affirm.
Our scope of review is for correction of errors at law, and findings of fact in jury-waived cases shall have the affect of a special verdict. Iowa R. App. P. 4.
Plaintiff criticizes the trial judge for not referring to any admissions made by the director of the day care center, Lisa Clark. Lisa Clark was not at the day care center at the time of the accident.
The only two people from the day care center who were on the playground were Theresa Horak and Jenni Byerly, who were looking after the children. Horak and Byerly were not called to testify at the trial. Their depositions were either not taken, or were not offered into evidence. There is no evidence in the record as to what occurred at the time of this accident.
The party who so alleges must, unless otherwise provided by statute, prove negligence and proximate cause, by a preponderance of the evidence. Iowa R. App. P. 14(f)(8). Findings of fact in a law action, which means generally any action triable by ordinary proceedings, are binding upon the appellate court if supported by substantial evidence. Iowa R. App. P. 14(f)(1).
We determine there is substantial evidence to support the trial court's ruling. We review the evidence in the light most favorable to upholding the district court's judgment. Frunzar v. Allied Property Cas. Ins. Co., 548 N.W.2d 880, 884-85 (Iowa 1996).
Plaintiff's appeal is dismissed.
AFFIRMED.