Opinion
No. 0-632 / 00-0061.
Filed December 22, 2000.
Appeal from the Iowa District Court for Clarke County, ARTHUR E. GAMBLE, Judge.
Plaintiff appeals following a trial in which the jury found plaintiff's decedent fifty-one percent at fault and defendants forty-nine percent at fault for the automobile accident in which the decedent's death occurred. AFFIRMED.
Brett M. Hoyt of the Sellers Law Office, West Des Moines, for appellant.
Mark J. Wiedenfeld and Joseph P. McLaughlin of Wiedenfeld McLaughlin, L.L.P., Des Moines, for appellees.
Heard by SACKETT, C.J., and MAHAN, J., and HABHAB, S.J.
Senior Judge assigned by order pursuant to Iowa Code § 602.9206 (1999).
Plaintiff appeals following a trial in which the jury found plaintiff's decedent fifty-one percent at fault and defendants forty-nine percent at fault for the automobile accident in which the decedent's death occurred. Plaintiff contends (1) the jury verdict is not supported by sufficient evidence, (2) the verdict was a result of jury misconduct, (3) the jury wrongly based its verdict on the defendants' ability to pay, (4) the court erred in excluding testimony as to the driver's driving habits, and (5) the court erred in denying his claim for loss of enjoyment of life sustained after the loss of consciousness or death. We affirm.
Background Facts and Proceedings. On August 6, 1997, Richard Maxwell was driving a pickup on Page Street, a gravel road in Clarke County. He approached the stop sign at the "T" intersection of Page Street with County Highway R-35. He intended to cross R-35 and enter a field where he was going to bale hay. Geoffory Palmer was driving a car owned by his father, Timothy Palmer, north on County Highway R-35. County Highway R-35 has no stop sign at the intersection in question. The parties dispute the speed at which Palmer was driving just prior to the accident, although it appears Palmer was speeding. The parties also dispute whether Maxwell stopped at the stop sign before pulling out in front of the Palmer vehicle. The Palmer vehicle swerved left, into the southbound lane, apparently to avoid Maxwell's pickup. Palmer's brakes locked. The cars collided. Maxwell died a short time later.
Plaintiff, one of Maxwell's five adult children and the administrator of his estate, filed suit on behalf of the estate. Plaintiff's amended and substituted petition included the following counts: (1) negligence on the part of Geoffory Palmer; (2) punitive damages; (3) negligent entrustment against Timothy Palmer as the owner of the car Geoffory was driving; and (4) loss of parental consortium on the part of Maxwell's five adult children.
Following the trial, the jury returned a verdict in favor of defendants, finding Maxwell fifty-one percent at fault and Geoffory Palmer forty-nine percent at fault. The court denied plaintiff's motion to vacate jury verdict and request for new trial. Plaintiff appeals.
Standard of Review. We review the district court's denial of a motion for new trial for abuse of discretion. Johnson v. Knoxville Community Sch. Dist., 570 N.W.2d 633, 635 (Iowa 1997); Ten Hagen v. DeNooy, 563 N.W.2d 4, 10 (Iowa App. 1997). In ruling on a motion for new trial, the court has broad but not unlimited discretion to determine if the verdict effectuates substantial justice among the parties. Iowa R. App. P. 14(f)(3); Vaughan v. Must, Inc., 542 N.W.2d 533, 542 (Iowa 1996). We review the trial court's exclusion of evidence and plaintiff's assertion the trial court erred in denying a damage claim for corrections of errors at law. Iowa R. App. P. 4.
Substantial Evidence to Support Jury Verdict. Maxwell claims Geoffory Palmer violated several "rules of the road", all of which amount to negligence or negligence per se. Given these violations, and the testimony of Maxwell's expert witnesses as to the speed of Palmer's vehicle at the time of the accident, Maxwell contends insufficient evidence exists for a reasonably prudent juror to conclude Richard Maxwell was more at fault than Geoffory Palmer.
Speeding, in violation of Iowa Code § 321.285; driving on the left hand side of the roadway, in violation of Iowa Code § 321.297; failing to maintain control of his vehicle, direct its movement, control its speed, and stop it reasonably quickly, in violation of Iowa Code § 321.288; failure to keep a proper lookout; and failure to properly adjust and maintain brakes in good working order, in violation of Iowa Code § 321.431.
Questions of negligence and proximate cause are ordinarily for the jury. Iowa R. App. P. 14(f)(10); Boham v. City of Sioux City, 567 N.W.2d 431, 435 (Iowa 1997). A motorist upon a public highway has a right to assume others using the road will obey the law, including statutes, rules of the road and necessity for due care, at least until the motorist knows or in the exercise of due care should have known otherwise. Iowa R. App. P. 14(f)(9).
At trial, Palmers claimed Richard Maxwell was negligent for failing to keep a proper lookout and/or failing to stop at the stop sign or yield the right-of-way before entering the intersection. Both parties presented expert testimony. Maxwell's experts, two Iowa State Troopers, testified Geoffory Palmer's vehicle was traveling between 95 and 105 mph just prior to the accident. The troopers conceded the Palmer vehicle had the right-of-way when the two vehicles met at the intersection. The troopers testified Palmer steered into the left lane to avoid Maxwell, but admitted his actions were a natural reaction to avoid a danger coming from the right. Further, during cross-examination, the troopers backed away from their theory the Maxwell vehicle entered the intersection without seeing the Palmer vehicle, and admitted if Richard Maxwell had looked, he would have seen Palmer's vehicle.
According to Palmers' expert, an independent accident reconstruction expert with extensive experience, Goeffory Palmer's vehicle was traveling between sixty-six to seventy-three miles per hour at the time it started to skid. Palmer's expert pointed out factors not taken into account by the troopers in making their calculations. Palmer's expert rejected the "over the hill" theory first offered by Maxwell's experts. The expert testified Goeffory Palmer's vehicle would have been traveling at least 174 mph, and probably over 200 mph, if it were on the other side of the crest of the hill when Richard Maxwell started into the intersection from the stop sign.
The jury was free to disregard all or part of an expert's testimony. Mensink v. American Grain, 564 N.W.2d 376, 382 (Iowa 1997). A reasonable jury could, and did, conclude Richard Maxwell was negligent for failing to keep a proper lookout and/or failing to stop at the stop sign or yield the right-of-way before entering the intersection. We agree with the district court's conclusion in its ruling on Maxwell's motion for new trial:
The evidence clearly supports the jury's finding that defendant Geoffory Palmer was at fault. It is undisputed Palmer was speeding. However, regardless of speed, Palmer has the right-of-way. A reasonable jury could conclude Richard Maxwell was at fault for failure to stop and yield to Palmer. Further, the jury could reasonably conclude Maxwell's fault was a greater cause of the accident because Palmer would have sped by but for Maxwell's failure to yield. Whether the allocation of fault is 50% — 50% or 51% — 49% is well within the province of this jury to decide.
We conclude substantial evidence supports the jury's verdict, and affirm the district court on this issue.
Jury Misconduct. Maxwell claims extraneous prejudicial information was brought into the jury room with the intent to change the jury's decision. According to Maxwell, one juror stated during the course of jury deliberations that if the jury found Palmers fifty percent or more at fault, they would lose their farm. Two juror affidavits attached to Maxwell's motion for new trial support this contention. Further, Maxwell asserts the jurors used this information and decided liability based upon the Palmers' ability to pay the judgment, rather than the law given to them by the court in its instructions.
Three conditions must be met to impeach a verdict on the basis of jury misconduct: (1) evidence from the jurors must consist only of objective facts concerning what actually occurred in or out of the jury room bearing on misconduct; (2) the acts or statements complained of must exceed tolerable bounds of jury deliberations; and (3) it must appear the misconduct was calculated to, and with reasonable probability did, influence the verdict. Ten Hagen, 563 N.W.2d at 10 (quoting State v. Arnold, 543 N.W.2d 600, 605 (Iowa 1996)). Under Iowa Rule of Evidence 606(b), juror affidavits may not be received concerning the jury's deliberations unless it deals with "the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Iowa R. Evid. 606(b); Hobbiebrunken v. G S Enters., Inc., 470 N.W.2d 19, 22 (Iowa 1991). "The key distinction to be made is between the internal workings of the jury and external pressures brought to bear on the decision-making process." Id. (Juror affidavits suggesting some members of the jury, after examining plaintiff's recent tax returns and other financial information, decided plaintiff and her children would be able to get along without recovery in a lawsuit could not be received in evidence in support of plaintiff's motion for new trial).
The record does not support Maxwell's allegations. Maxwell has failed to prove the juror's comment at issue resulted from extraneous prejudicial information improperly brought to the jury's attention. As the district court explained:
It is just as likely this comment was related to the size of plaintiffs' claim and evidence that defendants lived on a farm. Plaintiffs suggest defendants either communicated this idea to a juror or waged a campaign in the community to somehow influence the verdict. However, Plaintiff failed to prove that any outside influence was improperly brought to bear upon any juror by defendants or anyone else. . . . [T]he statements complained of here do not exceed the tolerable bounds of jury deliberations; nor do they appear reasonably calculated to influence the verdict. Such statements, if they were made, are part of the internal deliberations of a jury and do not impeach the verdict.
We affirm the district court on this issue. Exclusion of Testimony. Maxwell contends the trial court erred in excluding the testimony of Naomi Johnson. Maxwell called Johnson to testify about Geoffory Palmer's driving habits. Maxwell asserts the testimony was admissible pursuant to Iowa Rule of Evidence 406 as evidence of habit or routine practice.
Our resolution of the jury misconduct issue relates to issues II and III raised in appellant's brief.
The decision whether to admit evidence is within the sound discretion of the trial court. Vaughan, 542 N.W.2d at 542. Such decisions will not be disturbed on appeal unless the discretion has been abused and a substantial right of a party has been affected. Id.
Iowa Rule of Evidence 406 permits evidence of habit to prove the conduct of the person on a particular occasion was in conformity with the habit or routine practice. Iowa R. Evid. 406. A habit is a person's regular practice of responding to a particular kind of situation with a specific kind of conduct. Gamerdinger v. Schaefer, 603 N.W.2d 590, 594 (Iowa 1999). The basis for admissibility of habit and custom is the inference if a person has acted a certain way with regularity in the past, it is probable the person acted in conformity with that pattern on the occasion in question. Id. Where a habit of conduct is to be evidenced by specific instances: (a) they should be numerous enough to base an inference of systematic conduct; and (b) they should have occurred under substantially similar circumstances, so as to be naturally accountable for by a system only, and not as casual recurrences. Iowa R. Evid. 406, Committee Comment (1983) (quoting 1 Wigmore on Evidence, 2d Ed., section 376, quoted with approval in Barrick v. Smith, 80 N.W.2d 326, 329 (Iowa 1957)).
After a careful examination of the record, we conclude the proposed testimony did not rise to the level of habit evidence. Johnson did not remember specific dates or the number of times she saw Geoffory Palmer driving by her home. There was no evidence he exceeded the speed limit every time he drove by her home. She observed him driving on a gravel road with a steep hill, rather than a flat stretch of pavement like the one on which the accident occurred. She testified Geoffory was not always driving the same vehicle, and she admitted she is not a very good judge of speed. The proposed testimony's prejudicial nature outweighed its probative value. The trial court did not abuse its discretion in excluding the proffered testimony.
Damage Claim. In a pretrial motion for adjudication of law points, Maxwell requested the court to determine: "Loss of enjoyment of life, sustained after loss of consciousness or death, is an element of damage recoverable in a wrongful death action." The trial court ruled plaintiffs should be allowed to present the claim and relevant evidence at trial. At trial, however, the court sustained Palmers' objection to Maxwell's evidence of Richard Maxwell's loss of enjoyment of life post unconsciousness and post death. Maxwell claims the court erred in denying the claim of damage of loss of enjoyment of life sustained after the loss of consciousness or death.
Palmers contend Maxwell's argument is moot in light of the jury's finding Maxwell was fifty-one percent at fault. We agree. An action is moot if it no longer presents a justiciable controversy because the issues involved have become academic or nonexistent. Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540 (Iowa 1997). "Our test of mootness is whether an opinion would be of force or effect in the underlying controversy." Id. (quoting Wengert v. Branstad, 474 N.W.2d 576, 578 (Iowa 1991)). Because we resolve the other issues raised by Maxwell in favor of Palmers, thereby upholding the jury's verdict finding Maxwell fifty-one percent at fault, we need not decide this issue. Resolution of the issue will not have "any practical legal effect upon an existing controversy." See id. Therefore, we conclude the issue is moot.
AFFIRMED.