Opinion
No. 3-946 / 03-0322
Filed February 11, 2004
Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.
Kecia Anderson appeals following trial on her personal injury action based on injuries sustained in a fall on the University of Northern Iowa campus. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Bruce L. Braley of Dutton, Braun, Staack, Hellman, P.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Julie A. Burger, Assistant Attorney General, for appellees.
Heard by Huitink, P.J., and Vogel and Mahan, JJ.
Kecia Anderson appeals following trial on her personal injury action based on injuries sustained in a fall on the University of Northern Iowa campus. We affirm in part, reverse in part, and remand
I. Background Facts and Proceedings.
On February 8, 2001, Kecia Anderson went to the Rod Library on the campus of Northern Iowa University to study. When she arrived at approximately 5:30 p.m., it was misting, but the sidewalks were not icy in front of the library. Shortly before midnight, when library staff announced the library would soon close, Anderson decided to leave. Upon exiting the building, she slipped on ice which had accumulated while she was inside, and fractured her leg. At the time of the accident, the roads and sidewalks in the area were 100 percent ice covered. Police officers and the ambulance crew who responded to the accident had difficulty reaching Anderson due to the conditions.
Marilyn Mercado was the interim director of library services at the time of Anderson's accident. She left the building around 5:00 p.m. that day, aware of the approaching storm. Upon Mercado's departure, Barb Weeg was left in charge of the library until she left around 9:00 p.m. leaving Linda McLaury as the senior staff person in charge of the library. After Weeg left, she called back to inform McLaury the sidewalks were slippery and instruct her to call Mercado at home to discuss whether the library should be closed. McLaury complied and contacted Mercado sometime between 9:30 and 9:45 p.m. at her home in Parkersburg. McLaury informed Mercado of Weeg's concerns. McLaury also told Mercado she was comfortable remaining in the library. Mercado instructed McLaury that the library would remain open. Between 11:40 and 11:50 p.m. that evening, McLaury witnessed fifteen to twenty individuals leave the library. None of them returned to report icy conditions.
The University of Northern Iowa has a policy regarding weather conditions and the library which states:
It is the policy of the University to continue normal hours of operation and maintain a regular work schedule for staff members during periods of severe weather and/or adverse working conditions. It is a basic premise of this policy that University faculty, staff and students shall have the opportunity to make their own decision about reporting to work or class with due consideration of travel conditions.
Based on her fall and resulting injuries, Anderson filed a tort claim with the State Appeal Board, and subsequently filed this lawsuit against the State of Iowa and Marilyn Mercado. She alleged the State and its employees were negligent in failing to treat the icy sidewalks, remove the ice, and close the library earlier. The State filed a summary judgment motion claiming, among other things, that the State and Mercado were immune from liability under the discretionary function exception of Iowa Code section 669.14(1) (2001). The district court denied the motion, rejecting the immunity claim.
The case proceeded to trial. At the close of Anderson's evidence, the State and Mercado moved for a directed verdict in which they renewed their claim of discretionary function immunity based on the specific claim the State and Mercado were negligent in their decision not to close the library. The district court, reversing its earlier position, concluded that the decision of whether to close the library was entitled to discretionary function immunity and granted a directed verdict in favor of Mercado and the State on that particular claim. Accordingly, the only specifications of negligence remaining for a jury decision were the failure to remove the ice and treat the sidewalk, both of which were solely against the State of Iowa. Following the trial, the jury returned a verdict in favor of the State on those remaining claims. The district court denied Anderson's motion for a new trial. Anderson appeals.
The Honorable Bruce Zager ruled on the motion for summary judgment while the Honorable George Stigler presided at trial and ruled on the directed verdict motion.
II. Discretionary Function Immunity.
Anderson first maintains the district court erroneously granted a directed verdict based on discretionary function immunity. Our appellate review of the directed verdict is limited to the correction of errors at law. Determan v. Johnson, 613 N.W.2d 259, 261 (Iowa 2000). The question is whether the district court correctly interpreted Iowa Code section 669.14(1) (2001) and applied it properly to the facts revealed at trial.
Our supreme has had frequent occasion to address the issue of discretionary function immunity recently. See Madden v. City of Eldridge, 661 N.W.2d 134, 138 (Iowa 2003). Iowa Code section 669.14(1) provides immunity from
[a]ny claim based upon . . . the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an officer or employee of the state, whether or not the discretion is abused.
The State is entitled to this immunity only if it satisfies a two-part test as set forth in Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531, 540-41 (1988). First, the State must show there was an element of judgment or discretion involved in the State's decision. Graber v. City of Ankeny, 656 N.W.2d 157, 161 (Iowa 2003). If we find the State did not have discretion in its challenged action, the immunity does not apply. If, however, we find the State exercised choice, then we must determine whether its judgment is the type the discretionary function immunity was designed to shield from liability. Id. The general rule is clear; liability is the rule and immunity the exception. Id. (citing Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 443 (Iowa 2002)). That is, we will narrowly construe the discretionary function exception.
Because Anderson concedes the first part of the test is met — whether an element of judgment of discretion was involved in the decision — we proceed to address the second prong of the Berkovitz test. Accordingly, we ask whether the decision to not close the library is the type of decision the discretionary function immunity was designed to shield from liability. See Graber, 656 N.W.2d at 156-57. We conclude, based on the clear recent guidance of our supreme court, it is not.
As noted in Graber, we first look to whether some plausible policy justification could have undergirded the challenged conduct. The critical question is whether the acts or omissions that form the basis of the suit are susceptible to a policy-driven analysis, not whether they were the end product of a policy-driven analysis. Graber, 656 N.W.2d at 164 (citing Shansky v. United States, 164 F.3d 688, 694 (1st Cir. 1999)). Here, the simple determination that weather conditions did not warrant the early closing of the library is not such a policy driven analysis. It is not a decision supported by "social, political, or economic policies." Doe, 652 N.W.2d at 444.
Similar to our supreme court conclusion in Graber, the State here fails to show any broad-sweeping economic, political, or social considerations were at the heart of its decision to keep the library open. Graber, 656 N.W.2d at 166. Rather, the record indicates the decision was nothing more than an ad hoc decision, tailored only by the specific facts as presented on that evening. See Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 883 (Iowa 2002). This is not a "matter into which courts in general and judges in particular are ill equipped to intrude." Shelton v. State, 644 N.W.2d 27, 30 (Iowa 2002). Accordingly, we hold the district court erroneously concluded discretionary function immunity attached to Mercado's decision to not close the library. We therefore reverse and remand for further proceedings on this claim.
III. Motion for New Trial.
In a motion for new trial, Anderson alleged (1) the verdict finding the State not at fault was not sustained by sufficient evidence, (2) the directed verdict in favor of Mercado was contrary to law, and (3) the court's instructions to the jury defining the State's duties were in error. Anderson appeals from this ruling.
A. Jury Verdict.
In ruling on motions for a new trial, the court has broad, but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties. Iowa R. App. P. 6.14(6)( c). Normally, the jury decides the facts and the court should not set aside the verdict simply because the reviewing court would have reached a different decision. Waddell v. Peet's Feeds, Inc., 266 N.W.2d 29, 32 (Iowa 1978).
The jury was instructed the State could be found negligent if it failed to use reasonable care to determine a hazardous condition at the entrance to the library, or if it failed to make the library entrance reasonably safe after it knew of a hazardous condition, or if it failed to give an adequate warning of the hazardous condition and the risks involved in exiting the building. The general rule applicable to the liability of possessors of land for injuries caused by conditions on the land is found in the Restatement (Second) of Torts. See Richardson v. Commodore, Inc., 599 N.W.2d 693,696 (Iowa 1999). A possessor of land is subject to liability for physical harm caused to invitees by a condition on the land if, but only if, the possessor (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343.
We conclude the jury verdict rejecting these claims is supported by substantial evidence and therefore affirm. A reasonable juror could have found no library employee or University official had actual knowledge of the severity of the icy conditions developing in front of the library on the evening in question. When McLaury arrived at the library around 8:00 p.m., it was misting and slick, but not icy. Likewise, when Weeg left around 9:00 p.m., she called back in to report "the sidewalks were slippery, but the roads weren't too bad." However, according to McLaury, Weeg did not "sound overly concerned that the library need[ed] to be closed." Moreover, when Mercado made the call not to close the library she based her assessment on the conditions she observed at her house in Parkersburg and on the situation at the library as conveyed to her by McLaury.
Parkersburg is approximately nineteen miles from the library.
Furthermore, Anderson had equal opportunity to access weather information as did the University. The icy conditions had been forecasted and Anderson could have ascertained the situation herself before leaving the library. In spite of the University's policy that the "faculty, staff and students shall have the opportunity to make their own decision about reporting to work or class with due consideration of travel conditions," Anderson testified she made no effort to learn of the weather conditions prior to leaving the library. (Emphasis added).
B. Jury Instruction.
Anderson requested a jury instruction outlining the allegations of negligence against the State that was a combination of Iowa Civil Jury Instructions 1600.1 and 700.1 and the case of Sheets v. Ritt, Ritt Ritt, Inc., 581 N.W.2d 602 (Iowa 1998). However, the court instead presented the jury with an instruction derived from Iowa Civil Jury Instruction 900.1. We review claims of erroneous jury instructions for corrections of errors at law. Duncan v. City of Cedar Rapids, 560 N.W.2d 320, 325 (Iowa 1997). "As long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction." Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999).
We conclude the court properly presented an instruction based on Iowa Civil Jury Instruction 900.1. As our supreme court noted in Richardson v. Commodore, Inc., 599 N.W.2d 693, 698 n. 3 (Iowa 1999), the position that would abrogate the distinction between invitees and licensees has not gained the approval of a majority of the Iowa Supreme Court. "Therefore, the status of the plaintiff continues to be a relevant consideration in premises liability law." Richardson, 599 N.W.2d at 698 n. 3. The law that distinguishes between invitees and licensees, thus still prevails. The court did not err in instructing the jury.
IV. Mortality Tables.
Anderson contends the district court erred in instructing the jury using 1980 C.S.O. Mortality Tables rather than more recent predictors of life expectancy as contained in the United States Life Tables. Although we are not required to by our disposition of the new trial issue to address this claim, we nonetheless comment on it as guidance should the district court again be faced with the issue upon remand The Life Tables, as published by the United States Census Bureau, are admissible in federal court without foundation, pursuant to Federal Rule of Evidence 902(4). This table is clearly more timely than that contained in Volume IV of the Iowa Code. Should such a request for the instruction on life expectancy be raised again upon remand, we believe the request should be granted.