Opinion
No. 5-233 / 04-1205
Filed May 11, 2005
Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge.
The McPhersons appeal from the district court's judgment in favor of the defendant following a jury verdict finding Rick McPherson sixty-five percent at fault for his injuries. AFFIRMED.
David E. Vohs, Sioux City, for appellant.
William K. Stoos of William Kevin Stoos, P.C., Sioux City, for appellee.
Considered by Mahan, P.J., and Zimmer and Vaitheswaran, JJ.
Rick and Debra McPherson (hereinafter "the McPhersons") appeal from the district court's judgment in favor of Pamela Netley following a jury verdict finding Rick McPherson sixty-five percent at fault for the injuries he sustained in a motorcycle accident. The McPhersons contend the district court erred in submitting instructions on failure to mitigate damages and proximate cause to the jury. Alternatively, they assert the jury's verdict was not supported by substantial evidence and contrary to law. We affirm.
I. Background Facts Proceedings.
On July 3, 2000, the motorcycle Rick McPherson (hereinafter "McPherson") was riding was hit by a car driven by Netley while he was stopped at an intersection on his motorcycle. Netley had become distracted by some nearby flowers and failed to notice McPherson. Netley's vehicle was moving at a rate of approximately five to ten miles per hour when it collided with the front tire of the stopped motorcycle. McPherson testified he landed on his left shoulder and neck, approximately twenty-five feet from his motorcycle. A friend took McPherson to the local doctor's office where he was examined by a physician's assistant. McPherson was instructed to return home and to put heat and ice on his knee and shoulder.
Netley disputes the impact knocked McPherson off the motorcycle and threw him twenty-five feet. Rather, she testified McPherson jumped off in an attempt to avoid being struck by her vehicle.
On July 5, 2000, McPherson went to see Dr. Larry Armstrong, a licensed chiropractor, complaining of pain in his left shoulder, right knee, and low back. In late August of 2000, Dr. Armstrong referred McPherson to Dr. Steven Meyer, an orthopedic surgeon. Dr. Meyer performed same-day surgery on McPherson's knee on September 18, 2000. Following the surgery, McPherson received physical therapy treatment from Michael May for approximately three years. In October of 2000, Dr. Meyer referred McPherson to Dr. Steven Stokesbary, an orthopedic surgeon, for his continuing shoulder pain. Dr. Stokesbary performed arthroscopic surgery on McPherson's left shoulder. Following the surgery, his range of motion and strength in his shoulder returned to near normal. However, his pain did not subside. McPherson continued his care with Dr. Stokesbary until March 7, 2002. At that time, Dr. Stokesbary referred McPherson to a doctor at the Mayo Clinic to get a second opinion. Dr. Robert Cofield confirmed Dr. Stokesbary's diagnosis of chronic neck and left shoulder pain. McPherson returned to Dr. Stokesbary's office on July 18, 2002. He continued regular care with Dr. Stokesbary until February 12, 2004, when he was referred to a chronic pain specialist.
McPherson had previously been seen for problems with his right knee by one of Dr. Meyer's partners in 1993. At that time, surgery was recommended, but for reasons not disclosed by the record, was never performed.
Prior to the accident, McPherson was working as a unionized commercial electrician for Electrical Engineering. Due to the nature of McPherson's injuries, his doctors restricted the type and amount of work he could perform. On December 26, 2000, Dr. Meyer restricted McPherson to lifting twenty pounds and advised minimal overhead activities. Later, in February of 2001, Dr. Stokesbary lowered his lifting restriction to ten pounds. McPherson's lifting restriction remained at ten pounds until August of 2001, when Dr. Stokesbary increased it to thirty pounds. McPherson's lifting restriction remained constant until July of 2002, when it was finally raised to thirty-five pounds. Unfortunately, the union was unable to place McPherson with a contractor due to his work restriction. McPherson remained unemployed from the time of the accident until September 2002 when he obtained employment with L D Electric as a nonunion residential electrician.
Mr. James Kavanaugh, the business agent for the electricians' union, testified that he could not place an individual with a thirty-five pound weight lifting restriction because the union contractors require that an electrician to be "100 percent able and willing to do any kind of work."
On May 14, 2002, the McPhersons filed suit against Netley asserting negligence and loss of consortium claims. A jury trial commenced on April 27, 2004. Although Netley admitted fault prior to trial, she asserted McPherson was also at fault for failing to mitigate his damages. At the close of evidence, the district court submitted proposed instructions to the parties. At that time, the McPhersons did not object to the proposed instructions, and they were submitted to the jury. The jury returned a verdict in which both parties' fault was found to be a proximate cause of the damage to McPherson. The jury apportioned McPherson with sixty-five percent of the fault and Netley with the remaining thirty-five percent. Consequently, pursuant to the court's instructions, the jury did not answer the special interrogatory concerning the amount of damages. The court then entered a judgment in favor of the defendant. The McPhersons filed a motion for new trial raising two issues pertinent to this appeal. They first contended the defendant had not introduced substantial evidence to justify submission of the failure-to-mitigate and proximate cause instructions to the jury. In the alternative, they argued the jury's verdict finding McPherson sixty-five percent at fault was not supported by substantial evidence. The district court denied the plaintiffs' request for a new trial. The plaintiffs appeal.
II. Standard of Review.
Our review of a ruling on a motion for a new trial depends on the grounds asserted in the motion and ruled on by the trial court. Hansen v. Central Iowa Hosp. Corp., 686 N.W.2d 476, 480 (Iowa 2004). When the motion and ruling are based on discretionary grounds, our review is for an abuse of discretion. Id. When the motion and ruling are based on a claim the trial court erred on issues of law, our review is for correction of errors of law. Id. Because the plaintiffs' motion for a new trial raised issues of law, our review is for the correction of errors of law. See Greenwood v. Mitchell, 621 N.W.2d 200, 204 (Iowa 2001).
III. Jury Instructions.
The McPhersons first contend Netley failed to introduce substantial evidence to justify submission of the failure-to-mitigate and proximate cause instructions to the jury. We find this claim is not properly before us. Iowa Rule of Civil Procedure 1.924 (formerly rule 196) states:
Before jury arguments, the court shall give to each counsel a copy of its instructions in their final form, noting this fact of record and granting reasonable time for counsel to make objections, which shall be made and ruled on before arguments to the jury. Within such time, all objections to giving or failing to give any instruction must be made in writing or dictated into the record, out of the jury's presence, specifying the matter objected to and on what grounds. No other grounds or objections shall be asserted thereafter, or considered on appeal.
The following colloquy took place between the court and the McPhersons' counsel during the final conference on jury instructions:
THE COURT: So I think we're ready to go, but we're going to make our final and formal record with regard to these jury instructions.
So I'd turn to you, Mr. Vohs, as plaintiff in this case and with regard to the final jury instructions proposed by the Court and the verdict form. Do you have any objections to the submission of any of these instructions or any objections to the verdict form?
MR. VOHS: No, Your Honor.
Thus, the record indicates the plaintiffs did not make any objection to the jury instructions. Therefore, it was error for the trial court to consider any objection to the instructions in its ruling on the plaintiffs' motion for a new trial, and we will not consider any alleged error on appeal. See, e.g., Julian v. City of Cedar Rapids, 271 N.W.2d 707, 708-09 (Iowa 1978) (holding alleged error in instructions was not preserved on appeal where no objection was made on the record even though asserted in a motion for a new trial and ruled on by the trial court). Furthermore, even if this issue was properly before this court, based on our discussion below, we would conclude substantial evidence supported the submission of the challenged instructions to the jury.
IV. Sufficiency of the Evidence.
The jury found McPherson sixty-five percent at fault and Netley thirty-five percent liable. In the McPhersons' motion for a new trial, they argued the verdict was not sustained by sufficient evidence. When reviewing a challenge to the sufficiency of evidence to support the jury's factual findings, we examine the record to determine whether those findings are supported by substantial evidence. Boham v. City of Sioux City, 567 N.W.2d 431, 435 (Iowa 1997). If a jury verdict is not supported by sufficient evidence, a new trial may be ordered. Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996).
Iowa's comparative fault statute defines fault as the following:
[O]ne or more acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes . . . unreasonable failure to avoid an injury or to mitigate damages.
Iowa Code § 668.1(1) (2003). Throughout trial, Netley sought to establish that McPherson was primarily at fault because he failed to mitigate his damages. In order to establish a failure-to-mitigate claim, the burden is on the defendant to show there was something the plaintiff could do to mitigate his loss and that requiring the plaintiff to do so was reasonable under the circumstances. Greenwood, 621 N.W.2d at 205. Additionally, the evidence must demonstrate a causal connection between the plaintiff's failure to mitigate and his damages. Id.
Although Netley admitted liability, she contested proximate cause and the extent of her liability. Her theory of the case was that McPherson failed to mitigate his damages by both failing to adhere to the work restrictions recommended by medical personnel and for failing to seek employment during portions of time after his accident. Upon our review of the record, we conclude there was substantial evidence introduced at trial from which the jury could find McPherson was primarily at fault for his damages based on his failure to mitigate. It is clear from the record that McPherson made no attempt for approximately two years to pursue employment in a nonunion shop after he realized he could not be placed with a union contractor. Although he could not be placed with a union contractor, given the amount of time McPherson was subject to a work restriction, working with the union was not the only employment option McPherson reasonably should have explored. McPherson easily could have pursued employment in a less demanding environment as a nonunion or residential electrician. Additionally, we note that once McPherson decided to pursue his other options, he was successful in securing a position even though he was still subject to a weight lifting restriction. In light of the foregoing, we conclude sufficient evidence supported the conclusion that alternative employment was available to McPherson.
Additionally, there was sufficient evidence presented at trial to support the conclusion that McPherson's lack of cooperation in pursuing alternative employment was unreasonable. At no time following the accident did a treating physician tell McPherson he could not seek employment. Rather, his doctors expressly allowed him to work within the parameters of the various weight lifting restrictions ordered. However, even in light of his doctors' express permission to obtain employment, McPherson failed to pursue employment that was less physically demanding until two years after the accident. The unreasonableness of McPherson's failure to pursue other employment is further demonstrated by the fact that he was capable of completing household chores, strenuous home improvement projects, and numerous side electrical jobs. Additionally, the medical evidence presented at trial revealed that although McPherson experienced tightness and pain in his neck and shoulder after working extended periods of time, he had near normal range of motion and strength. Under these facts, a jury could conclude it was unreasonable for McPherson to remain unemployed for two years following the accident.
Furthermore, we note that the record demonstrates that McPherson missed numerous physical therapy appointments. The physical therapist's progress notes from May 14, 2003 indicate his belief that McPherson's recovery "has been frustrated by some difficulty getting in on a regular basis. . . ." This evidence clearly demonstrates that McPherson's recovery and consequently, his ability to obtain gainful employment, was significantly delayed by his own lack of cooperation. Thus, substantial evidence exists in the record from which a rational fact finder could conclude that a majority of McPherson's damages were caused by his own lack of cooperation and effort to secure alternate employment.
Finally, we note that throughout the trial Netley challenged McPherson's version of the events surrounding the accident and his claim of major injuries. She consistently, and successfully, challenged his evidence as to the cause and extent of those injuries. We agree there was substantial evidence to support Netley's challenges to the evidence and the issue of proximate cause. For all the reasons set forth above, we will not disturb the jury's verdict. Accordingly, we affirm.