Opinion
No. 3-858 / 03-0278.
Filed December 24, 2003.
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
The plaintiff appeals from the district court's directed verdict in favor of the defendants. AFFIRMED.
Patrick O'Bryan, Des Moines, for appellant.
Michael Thrall of Nyemaster, Goode, Voigts, West, Hansell O'Brien, P.C., Des Moines, for appellee.
Heard by Mahan, P.J., and Miller and Eisenhauer, JJ.
Plaintiff Christopher Fabela appeals from the district court's directed verdict in favor of defendants U-Haul Co. of California d/b/a U-Haul Center of Charter Oak, and U-Haul Company of the West Coast of Florida (collectively U-Haul). We affirm.
Background Facts and Proceedings.
On July 23, 2000, Stephanie Little entered into an agreement with a U-Haul dealership in Covina, California, to rent a truck and four-wheel trailer. It was a one-way agreement with Des Moines, Iowa as the destination. When Little and her boyfriend, Christopher Fabela, picked up the truck and trailer, the cab of the truck was dirty, and there were cigarette butts in the ashtray. U-Haul employees did not perform any kind of maintenance in Fabela and Little's presence, such as checking oil, fluids or tire pressure.
Fabela and Little took possession of the truck and trailer, but soon discovered the motor oil in the truck was two quarts low. When they returned to the busy U-Haul dealership, U-Haul employees gave Fabela two quarts of oil to add. Fabela and Little noticed there was a gouge in the side of one of the trailer tires. The U-Haul employees instructed Fabela and Little to switch trailers.
That same day, July 23, Fabela drove the U-Haul truck and trailer from Corvina to San Bernardino, California. The next day, July 24, Fabela and Little drove the truck and trailer, now loaded with a car, from San Bernardino to Las Vegas, Nevada. Fabela and Little did not experience any problems with the truck on July 23 or 24, or for most of a day of driving on July 25. However, approximately nine hours after leaving Las Vegas on July 25, the truck's brakes failed. Fabela was driving the truck and trailer, descending a long six-percent grade on Interstate 70 in Utah. As the truck neared the bottom of the grade its brakes gave out. The U-Haul truck struck the back of a semi, and rolled onto its side. Both Little and Fabela were injured.
Fabela and Little filed a petition against U-Haul on September 10, 2001, seeking damages for personal injuries sustained in the accident. Prior to trial U-Haul filed a multi-part motion in limine or, in the alternative, motion for a pretrial ruling on the admissibility of evidence under Iowa Rule of Evidence 5.104. Division one addressed testimony, through Fabela, as to the cause of the brake failure. Division two addressed any evidence to be presented by the plaintiffs as to the cause of the brake failure. U-Haul argued that no expert witnesses had been designated on the issue, that neither Fabela nor any other of the plaintiffs' witnesses had examined the brakes, and the plaintiffs thus had no foundation upon which to base a causal opinion. The district court sustained these two divisions in limine.
The petition, which initially named U-Haul International, Inc. and U-Haul Corporation in addition to U-Haul Company of the West Coast of Florida, was amended on May 1, 2002, to include the correctly named corporate defendants.
Division three of U-Haul's motion, which sought to preclude introduction of any deficiency with the truck other than the alleged brake failure, was overruled by the court. Division four, which sought to preclude the introduction of other claims or lawsuits against U-Haul, was sustained.
At trial, the only evidence the plaintiffs presented on causation was Little and Fabela's testimony as to what they witnessed and experienced from the time the truck and trailer were picked up to the point of the accident. Fabela testified that he downshifted the truck into second gear as the truck began its descent down the steep incline, but that the truck continued to gradually gain speed. He stated that when he "tapped" the brakes they "went down to the floor." Fabela stated he attempted to apply the emergency brake, downshift into first gear, and finally, shift into reverse, none of which worked to slow the vehicle. Both Fabela and Little testified to noticing a burning smell after the brakes failed and shortly before the accident. Fabela also presented evidence of his experience driving large vehicles in hilly terrain. He denied "riding" or overusing the brakes while descending the hill.
U-Haul presented the expert opinion of a forensic engineer, Scott Kimbrough, Ph.D., P.E., who had conducted a thorough examination of the brakes shortly after the accident. Kimbrough found no defects in the brakes, and concluded, referencing service records introduced by U-Haul, that the brakes had been not only been periodically serviced but replaced or "renewed" at 33,000 miles, approximately 15,000 miles prior to the accident. It was Kimbrough's opinion, based on his physical inspection as well as the testimony of Little and Fabela, that the brake failure was the result of driver error: Fabela had relied on the brakes too heavily while descending the steep grade, which resulted in the brakes overheating to the point they failed. Significantly, Kimbrough opined that the brakes could not have overheated to the level revealed by his investigation unless they had in fact been working properly.
The case was submitted to the jury on claims that U-Haul negligently supplied a truck and trailer that were unsafe for the task to be performed by Little and Fabela, and that U-Haul failed to properly test, repair and maintain the braking system on the truck and trailer rented by Little. The jury returned a verdict finding U-Haul to be sixty percent at fault and Fabela to be forty percent at fault, and finding Little had sustained damages of $11,592.87 and Fabela had sustained damages of $64,027.07. Upon U-Haul's motion the district court directed a verdict in U-Haul's favor, concluding the evidence of negligence was insufficient to submit Fabela and Little's claims to a jury.
Fabela and Little withdrew claims of breach of contract and breach of warranty.
U-Haul had moved for directed verdict on this ground at the close of the plaintiffs' evidence, the close of the defendants' evidence, and the close of all evidence. On the first two occasions the trial court stated it would "reserve ruling" and on the third occasion stated it would take the motion "under advisement." No party objected to this procedure. The trial court's post-verdict ruling is thus a ruling on a motion for directed verdict rather than a ruling on a motion for judgment notwithstanding the verdict.
Both Fabela and Little appealed, but Little subsequently reached a settlement with Fabela's liability insurance carrier. Thus, this matter is limited to a review of Fabela's claims. He argues the district court abused its discretion in ruling on U-Haul's motion in limine, and that the court erred in granting U-Haul's motion for a directed verdict.
Scope of Review.
We review this matter for the correction of errors at law. Iowa R. App. P. 6.4. Evidentiary rulings by the district court are reversed only upon a showing the court abused its broad discretion, to the prejudice of the complaining party. Horak v. Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002). We reverse the court's grant of a directed verdict only if, viewing the evidence in the light most favorable to Fabela, there was substantial evidence in the record to support each element of his claim. Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002). If reasonable minds could reach different conclusions based upon the evidence, the issue was one for the jury. Id. Motion Ruling.
Fabela argues the district court abused its discretion in its pre-trial ruling on U-Haul's motion in limine, by precluding Fabela from commenting on the maintenance records of the U-Haul truck rented by Little. Specifically, Fabela claims he should have been allowed to comment on the fact the truck had not received any maintenance for its first 5,523 miles, that the brakes on the truck had not been serviced or inspected for over seven months and 15,000 miles prior to the accident, and that the truck had not received any service or maintenance for over two months and 3,000 miles prior to the accident. Having reviewed the record, we reject this claim for several reasons.
Initially, we note nothing in the district court's rulings on the first and second divisions of U-Haul's pretrial motion prevented Fabela from commenting on the maintenance records. The court's rulings were limited to the plaintiffs' ability to opine as to the cause of the brake failure, and addressed and ruled on only the "motion in limine" and not the alternative motion to determine admissibility of evidence. Even if a later exchange between the court and both counsel can be interpreted as also addressing questions of brake maintenance, Fabela never attempted to offer the records into evidence or testify as to their content. His failure to make an offer of proof during trial as to any testimony or evidence he might submit on the subject serves to waive error on appeal. See Johnson v. Interstate Power Co., 481 N.W.2d 310, 317 (Iowa 1992) (noting that a ruling sustaining a motion in limine is not a ruling on the evidence, and if the evidence is not offered nothing is preserved to review on appeal).
The district court held:
[C]learly, [Little and Fabela] can talk about what happened that day . . . when they were driving, when [Fabela] pushed on the brake pedal, what happened; but in terms of either one of them giving any opinions about — about the brakes being defective, from what you're telling me, I don't think you're going to have the foundation to do that. . . . So I'm going to sustain the first section of the motion in limine in part.
Also I'm going to sustain section two of the motion in limine. Again, they didn't examine the brakes before or after. They're not qualified in terms of saying, yes, these brakes were defective or weren't defective or something else on the car was or wasn't defective.
After the court ruled on all four divisions of U-Haul's pre-trial motion, the following exchange took place:
THE COURT: Okay. So Mr. Thrall, is that clear enough for you in terms of your motion? MR. THRALL: Well, as I understand the Court's ruling, [the plaintiffs] wouldn't be able to offer any testimony as to the cause of the brake failure; that they can just testify as to what they observed and what they experienced during the course of operating the truck, but they can't comment that they weren't — that the brakes weren't maintained or offer any opinion as to maintenance or the cause of the actual reason that they perceive the brakes didn't work.
THE COURT: So, Mr. O'Bryan, we're on the same page? MR. O'BRYAN: I think so.
Further, we do not see how Fabela was prejudiced by the fact he did not comment on the maintenance records. Not only did defense expert Scott Kimbrough provide detailed comment on the totality of the service records during cross examination, the maintenance records were themselves admitted into evidence upon an offer by U-Haul. The records themselves speak to the truck's maintenance history.
Finally, we note that Fabela categorizes the records as something "easily within the grasp of the average citizen." If this is the case, then Fabela's lay commentary would add nothing substantive to the record. See Iowa R. Evid. 5.701 (limiting lay opinion to that which is rationally based on the witness's perception and helpful to a determination of a fact in issue). To the extent Fabela may be seen as suggesting he possessed some superior skill or knowledge that would have allowed him to interpret and explain the effect of the maintenance records to the jury as an expert witness, the record does not support his position. See id. at 5.702-.703 (defining expert testimony).
We find no error in the district court's ruling sustaining portions of U-Haul's motion in limine.
Directed Verdict.
In directing a verdict in favor of U-Haul, the district court concluded the cause of the truck's brake failure was not within the common knowledge and experience of the jury, and must be established by expert testimony. Fabela argues this conclusion was in error. Whether expert testimony was in fact required to establish a casual link depends on the complexity of the issue before the jury. Schlader v. Interstate Power Co., 591 N.W.2d 10, 14 (Iowa 1999). Generally speaking, expert testimony is not necessary, and a plaintiff can satisfy his burden without an expert opinion if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation.
Id. (quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313, 317 (1962)).
While the failure of the brakes in the U-Haul truck is certainly a matter of common understanding, under the record in this case the cause of that failure is not. We note that Dr. Kimbrough's testimony and opinion are clearly based on complex and scientific matters beyond the understanding of the average person. Kimbrough drew on his knowledge, experience and specialized training to interpret how the physical evidence related to the brake failure. In doing so he concluded the brake failure was caused by Fabela's overuse of the brakes, rather than any defect in the braking system. Fabela presented no expert opinion to refute this testimony.
We do not rule out the possibility that circumstances may exist in which the cause of a particular brake failure is within the common understanding of an average person. However, Fabela has not presented substantial evidence of any cause. He presented no positive proof that a lack of service or maintenance on the truck led to the brake failure. He offered no evidence regarding the condition of the brakes either prior or subsequent to the accident. In fact, his own testimony indicated that the brakes had functioned properly, through urban, rural, and mountainous terrain, for three days until just prior to the accident. While Fabela elicited testimony from Dr. Kimbrough that a lack of maintenance can contribute to brake failure, Kimbrough testified further that there were "absolutely no indications of poor brake maintenance on that vehicle."
Negligence is not presumed, but must be proven by the plaintiff. Fanelli v. Illinois Cent. Ry. Co., 246 Iowa 661, 664, 69 N.W.2d 13, 15 (1955). The mere fact the brakes failed does not establish U-Haul's negligence. Even viewing the record in the light most favorable to Fabela, it does not contain substantial evidence to support a claim that the brakes failed because U-Haul either negligently supplied a truck that was unsafe for the task to be performed, or negligently failed to properly test, repair and maintain the braking system on the truck, the specifications of negligence submitted to the jury. Accordingly, we affirm the district court's grant of a directed verdict in U-Haul's favor.
Fabela did not plead, nor has he established, a claim of res ipsa loquitur. See Novak Heating Air Conditioning, 622 N.W.2d 495, 497-98 (Iowa 2001) (defining claim of res ipsa loquitur). See also Bennett v. Bridgestone/Firestone, Inc., 431 S.E.2d 748, 750 (Ga. Ct. App. 1993) (rejecting res ipsa loquitur claim in failed brake case, as brakes can fail for a number of reasons, and not necessarily because of someone's negligence). Nor did he base his negligence claims on a violation of Iowa's safe brake statute. See Iowa Code § 321.430 (1999); Iowa Mut. Ins. Co. v. Combes, 257 Iowa 135, 140, 131 N.W.2d 751, 753 (1964). We do not decide on appeal a claim that was never raised to the district court. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).