Opinion
No. 2-080 / 01-0852.
Filed April 30, 2003.
Appeal from the Iowa District Court for Pottawattamie County, TIMOTHY O'GRADY, Judge.
Defendant appeals from the district court's ruling denying its motion for judgment notwithstanding the verdict and motions for new trial in plaintiff's action seeking damages for negligence. AFFIRMED.
Philip Willson, Council Bluffs, for appellant.
Edward Wintroub and Steven Renteria, Omaha, Nebraska, for appellee.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Shaffer Trucking, Inc. (Shaffer) appeals from the district court's ruling denying its motion for judgment notwithstanding the verdict and motions for new trial in Carl Browning, Jr.'s action seeking damages for negligence. Shaffer contends (1) legal excuse was shown as a matter of law, (2) it would have violated the Americans with Disabilities Act if it had denied its employee, the decedent, the right to drive, and (3) in the alternative, remittitur or new trial should be ordered because of the award of excessive damages. We affirm.
I. BACKGROUND FACTS.
Shaffer owned a tractor/semi-trailer that was driven by Richard Coonan. Coonan had passed a physical examination in early August 1995 and another in early October 1995, both of which certified him to drive a commercial vehicle for up to two additional years. In order to pass the examinations, he saw medical examiners. Pursuant to federal regulations, the medical examiners were required to perform a stethoscopic examination and take and record blood pressure. 49 C.F.R. § 391.43 (1999). They must note any heart arrhythmias or murmurs and any past or present history of heart problems known to be accompanied by syncope. Id. A person would not be physically qualified to drive a commercial motor vehicle under a variety of circumstances related to his physical condition and medial history which we discuss later in this opinion.
A definition presented to the jury defined a "syncope" as "a faint."
Carl Browning, Jr. also operated a tractor/semi-trailer. On December 6, 1995, as Coonan was driving in Iowa on Interstate 80, his truck crossed from its right lane, across the left lane, and across the shoulder into the median. Browning, traveling in the opposite direction, watched it do so. Browning was close enough to make eye contact with the other driver, but did not see anyone behind the wheel. The vehicles being driven by Coonan and Browning collided. Coonan died, as did his wife who was a passenger in his vehicle. Browning was injured. The medical examiner believes that Coonan had a heart arrhythmia which caused him to pass out, causing the collision. The autopsy of Coonan revealed that he suffered from significant hypertensive and coronary heart disease. The blood alcohol test was negative, and the urine drug screen did not reveal any drugs or abuse by Coonan. After the accident, Browning was initially unable to work, and then he worked only part-time for a period of time.
Browning and his wife filed suit against Shaffer. Browning's wife later dismissed her loss of consortium claim. As eventually submitted to the jury, Browning's claim was that Coonan was negligent in the operation of his vehicle, with such negligence imputed to Shaffer as the owner.
Shaffer admitted that Coonan's violation of traffic laws would constitute negligence, but asserted the affirmative defense of legal excuse. It contended Coonan developed a heart arrhythmia which caused him to lose control of his vehicle, and this justified acts which would otherwise be considered negligence. Shaffer Trucking moved for directed verdict, alleging there was insufficient evidence to submit the case to the jury because Coonan's unconsciousness from an arrhythmia was the cause of the collision and the evidence was insufficient for the jury to make a finding that Coonan had any warning that he might become unconscious on this trip. The district court denied the motion.
Following trial, the case was submitted to the jury on the issue of Shaffer's affirmative defense of legal excuse, and the issue of Browning's damages if the jury found Shaffer had not proved its defense. The jury returned a verdict finding that Shaffer failed to prove its defense of legal excuse and awarding Browning $150,000 in damages, a figure which included $100,000 for past loss of earnings. Shaffer filed a motion for judgment notwithstanding the verdict, realleging the grounds in its motion for directed verdict, a motion for conditional new trial, and a motion for new trial. The district court denied the posttrial motions. Shaffer appeals.
II. LEGAL EXCUSE.
Shaffer argues legal excuse was shown as a matter of law. It maintains the evidence conclusively shows Coonan became unconscious due to a heart arrhythmia that caused him to lose control of his truck and violate the law. It contends the evidence known to Coonan shows that it was not reasonably foreseeable he would become unconscious. It also asserts the court erred in permitting the jury to find Coonan was not qualified to drive when two medical examiners had certified him as so qualified. It points to several additional alleged errors in the order overruling the motion for judgment notwithstanding the verdict.
A. Scope of review. We review a district court's ruling on a motion for judgment notwithstanding the verdict for the correction of errors at law. State v. Keding, 553 N.W.2d 305, 306 (Iowa 1996). A judgment notwithstanding the verdict is based on the grounds stated in the motion for directed verdict, and we limit our review to those grounds. Id. We apply the same standard as the district court by considering the evidence in the light most favorable to the party against whom the motion is directed and conduct our review in favor of upholding the jury verdict. Id. We decide whether there was sufficient evidence to generate a jury question. Id. B. Merits. "Legal excuse" is a doctrine by which one seeks to avoid the consequences of one's conduct by showing justification for acts that would otherwise be considered negligence. Meyer v. City of Des Moines, 475 N.W.2d 181, 185 (Iowa 1991). "Legal excuse" means:
1. Anything that would make it impossible to comply with the statute or ordinance.
2. Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance.
3. Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.
4. Where a statute specifically provides an excuse or exception.Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554 (1932); see also Iowa Civ. Jury Instructions 600.74 (2001).
Shaffer relied on the second of these four definitions. The trial court instructed the jury that whenever a party must prove something they must do so by the preponderance of the evidence. In relevant part it also instructed the jury, in Instruction No. 18, that in order to establish its defense of legal excuse the burden was on Shaffer to prove both of the following propositions:
1. That its driver, Richard Coonan, became unconscious from a heart arrhythmia that caused him to lose control and place his vehicle in a position contrary to the law.
2. That it was not reasonably foreseeable that Richard Coonan would become unconscious on the trip he was making.
Instruction No. 18 also informed the jury that if it found Shaffer had proved both propositions, Browning was not entitled to damages, and if Shaffer had failed to prove both propositions Browning was entitled to damages in some amount.
The first of these two propositions was not disputed. However, Shaffer also had to prove the second. Instruction No. 19 informed the jury that in considering the defense of legal excuse the jury was to consider only what Richard Coonan knew about his medical condition at the time of making the trip in question, and it was then to determine whether a reasonable person having the same knowledge would decide there was a foreseeable risk of becoming unconscious on the trip and the risk was so great that the person should not make the trip. Shaffer thus had the burden to prove that the legal excuse relied upon did not result from Coonon's own culpability. Freese v. Lemmon, 267 N.W.2d 680, 684 (Iowa 1978).
Pursuant to federal regulations that were introduced in evidence, a person would not be physically qualified to drive a commercial motor vehicle if the person had: (1) a current clinical diagnosis of, among other things, myocardial infarction, or any other cardiovascular disease of a variety known to be accompanied by syncope, (2) a current clinical diagnosis of high blood pressure likely to interfere with a person's ability to operate a commercial vehicle safely, (3) an established medical history or clinical diagnosis of vascular disease which interferes with the person's ability to operate a commercial motor vehicle safely, or (4) an established medical history or clinical diagnosis of any other condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle. 49 C.F.R. § 391.41(b)(4), (6), (7), (8).
The medical examiners who certified Coonon to drive a commercial motor vehicle both noted he had high blood pressure for which he took medication. Neither examiner's report notes any medical history or current clinical diagnosis of a disease, illness, or condition that would render Coonan unqualified to drive a commercial motor vehicle under the relevant federal regulations. However, the evidence shows the examinations and resulting reports are in all likelihood based on a limited physical examination, consisting of a stethoscopic examination and a blood pressure check, together with "health history" provided by the person being examined and relied on by the examiner.
Their reports do not show what his untreated blood pressure was or what his treated blood pressure was.
An autopsy was performed on Coonan. The results show he had "significant hypertensive and coronary heart disease." Among other things the autopsy revealed Coonan had "[c]oronary atheroschlerosis, severe," with narrowing of three coronary arteries (30-40 % of one, 0-25 % of another, 51-75 % of another) and 99-100 % occlusion of a fourth; enlargement of his heart; and a large area of scarred heart muscle associated with the occluded artery and "consistent with an old, healed myocardial infarct."
The evidence thus shows that Coonan had ongoing problems with high blood pressure and had scarred heart muscle as a result of a heart attacked he had suffered at some earlier, undetermined date. The evidence does not show he was aware he had earlier suffered a heart attack. More importantly, however, given the burden of proof on Shaffer's defense of legal excuse, the evidence does not show that Coonan was unaware of his earlier heart attack; does not show that he revealed the heart attack to the medical examiners, if he was aware of it; does not show whether his clear medical history of vascular disease had been diagnosed and otherwise rendered him physically unqualified to drive a commercial motor vehicle under 48 C.F.R. § 391.41(b)(7), (8), or both; and does not show whether he revealed such medical history to the medical examiner, if he was aware of it.
Shaffer had requested the trial court take judicial notice of a certain newspaper article. The article discussed a medical journal article reporting a medical study which found that one-third of heart attack victims did not experience pain during their heart attacks. The trial court declined to take judicial notice of the newspaper article, and this ruling is not challenged on appeal.
A plaintiff is not required to prove a defendant's violation of rules of the road was not excused. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 643 (Iowa 1969). "In the absence of an admission by the adverse party, it is not often that a party having the burden of proof upon an issue establishes it as a matter of law." Id. at 642. Whether one has established a legal excuse is usually, but not always, a jury question, and seldom does a party having the burden of proof satisfy it as a matter of law. Freese, 267 N.W.2d at 686. Coonan had high blood pressure and coronary heart disease. He had earlier suffered a heart attack and had heart muscle damage. There is no evidence he was unaware of his previous heart attack and no evidence he revealed it to the medical examiners. We conclude Shaffer has not proved the second element of legal excuse as a matter of law. We have considered Shaffer's other related assertions of trial court error in overruling the motion for judgment notwithstanding the verdict, and believe all of them to be either subsumed within the issue we have discussed or of an insubstantial nature. We conclude the trial court did not err in overruling Shaffer's motion for judgment notwithstanding the verdict.
III. Americans With Disabilities Act.
Shaffer asserts it would have violated the Americans With Disabilities Act if it had denied Coonan the right to drive. Browning points out that Shaffer does not state how the issue was preserved for review or discuss the standard of review on this issue. See Iowa R.App.P. 6.14(1)( f) (stating each division of the brief shall discuss the scope or standard of appellate review and state how the issue was preserved for review). We find nothing in the record showing this issue was presented to and passed on by the trial court and decline to address it. See Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (stating our preservation rule requires that issues must be presented to and passed upon by the district court before they can be raised and decided on appeal); Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995) (same).
IV. Damages.
Shaffer claims that in the alternative remittitur or new trial should be ordered because of the award of excessive damages. More specifically, it asserts it is entitled to a partial retrial on the issue of past loss of earnings, as the award of $100,000 for past loss of earnings has "no relationship to the proof in the case." Shaffer cites Iowa Rule of Civil Procedure 1.1004(4) ("Excessive . . . damages appearing to have been influenced by passion or prejudice"), upon which it had relied in part in moving for a new trial in the district court. Shaffer requests that if we do not find Shaffer entitled to judgment notwithstanding the verdict we order Browning to file a remittitur of all but $47,500 of the award for past loss of earnings within thirty days, failing which Shaffer will be entitled to a new trial on the issue of past loss of earnings. Browning argues the jury's award of $100,000 for past loss of earnings is supported by the evidence.
Browning began working for his present employer in about 1986. He earned gross wages of $61,870.78 in 1993 and $65,441.07 in 1994. In 1995 he had earned $47,500.63 as of the date of the December 6 accident. He was then of work for about twelve weeks as a result of his injuries. He was then able to return to work on a part-time, minimum wage basis until about one year after the accident. He then returned to work full-time. At the time of trial in April 2001 he continued to work as a truck driver for the same employer.
Browning earned gross wages of $20,367.87 in 1996, $51,487.48 in 1997, and $64,583.66 in 1998. The evidence does not appear to show the wages he earned in 1999 and 2000.
Shaffer argues that because Browning was off work for only about eleven months any award for past loss of earnings of more than $47,500, the amount he earned for the period of a little over eleven months immediately preceding the accident, is excessive. Browning responds that his 1995 earnings were the lowest he had in the years immediately preceding the accident, and the jury could have found he would have made more than his prior earnings in 1996 if the accident had not occurred. He argues the award for past loss of earnings is supported by the evidence.
Our scope of review of a district court's ruling on a motion for new trial depends on the grounds raised in the motion. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001). To the extent the motion is based on a discretionary ground, our review is for an abuse of discretion. Id. at 859. A trial court ruling on a motion for new trial based on the size of the verdict is reviewed for an abuse of discretion. Foster v. Ankrum, 636 N.W.2d 104, 107 (Iowa 2001).
Prior to the accident Browning drove longer trips and was paid by the loaded mile. Following the accident and his injuries he drives shorter trips, within the Kansas City area, and is paid by the load. The jury could have reasonably found that Browning's low earnings in 1995 were an aberration, that he would have earned an additional $4,000 to $5,000 in 1995 absent the accident, and that his 1997 and 1998 earnings were lower than his 1994 earnings as a result of the post-accident changes in the nature of his work and the manner of his compensation. We also note that Browning earned almost six percent more in 1994 than in 1993. The jury could have reasonably believed that absent the accident and the following changes in his job duties and manner of compensation Browning would in 1997 and thereafter had continued to receive annual increases in compensation somewhat comparable to the increases he received from 1993 to 1994. The difference between the compensation he would have been paid if he had received such increases and the compensation he in fact received, together with $4,000 to $5,000 lost in 1995 and approximately $45,000 lost in 1996 would approach $90,000 through 1998. The jury therefore could reasonably have concluded that by the time of the April 2001 trial Browning had suffered loss of earnings approaching $100,000.
A verdict will not be set aside or altered on appeal unless it is (1) flagrantly excessive or inadequate, (2) so out of reason as to shock the conscience or sense of justice, (3) raises a presumption it is the result of passion, prejudice, or other ulterior motive, or (4) is lacking in evidential support. Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516, 524 (Iowa 1977) (citing Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 659 Iowa 1969)). Shaffer's claim that the jury's award for past loss of earnings has "no relationship to the proof in the case" appears to rely on the fourth of those four criteria. We need not decide whether it is directed at one or more of the other criteria as well, however, as we conclude the jury's award, although perhaps at the upper limit of what the evidence will support, is nevertheless supported by the evidence and does not meet any of the four listed criteria. Otherwise stated, we conclude the trial court did not abuse its discretion in denying Shaffer's alternative motion for new trial. We further conclude that no basis exists for ordering a new trial unless Browning files a remittitur of all but $47,500 of the award for past loss of earnings.
V. Conclusion.
We conclude the trial court did not error in overruling Shaffer's motion for judgment notwithstanding the verdict. We find Shaffer's claim concerning the Americans With Disabilities Act was not preserved for our review. We conclude the trial court did not abuse its discretion in overruling Shaffer's motion for new trial, and that no basis exists for ordering a new trial unless Browning remits all but $47,500 of the award for past loss of earnings.