Opinion
No. 4-121 / 03-1189
Filed March 10, 2004
Appeal from the Iowa District Court for Benton County, K.D. Briner, Judge.
Defendant appeals from the judgment entered in favor of Plaintiff on his claim of negligence. AFFIRMED.
Matthew Novak and Stephanie Hinz of Pickens, Barnes Abernathy, Cedar Rapids, for appellant.
John Wagner and Jeffrey Ritchie of John C. Wagner Law Offices, P.C., Amana, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ. Zimmer, J., takes no part.
Defendant City of Vinton (City) appeals from the judgment entered in favor of plaintiff Rodney Moore on his claim of negligence. The defendant contends the district court erred in failing to grant its motion for directed verdict on the negligence claim, in allowing Moore leave to amend his pleadings, and in failing to order a remittitur.
Rodney Moore purchased a residence in Vinton, Iowa near the Cedar River in 1994. In 1998, Moore began to experience flooding problems in the basement of the home. That year, Moore contacted the City's street superintendent, Rick Erickson, regarding the flooding. Erickson visited the property and looked into the storm sewer drain and outlet pipe. Erickson told Moore he did not believe the storm sewer had caused the flooding. Although Moore had extended an invitation to look at his basement floor, no one from the City ever entered Moore's home. The basement flooded three times in 1998.
In 1999, flooding continued in the basement. Moore discovered a city storm sewer ran under his home. There is no recorded easement disclosing the storm sewer's existence. Moore estimated he made approximately fifty attempts to contact various City officials in 1999 regarding the flooding. In May, Moore was shocked with 220 volts of electricity while attempting to monitor water pumps in the basement during one of the three floods he experienced that summer.
The basement again flooded twice in 2000 and three times in 2001. At times, the basement would retain as much as two and a half to three feet of water. Antiques and personal belongings stored in the basement were damaged or destroyed due to the flooding.
On May 16, 2001, Moore filed a petition against the City alleging negligence, nuisance, and strict liability. In August or September of 2001, the City rerouted the sewer line so it no longer ran under Moore's home. No flooding has occurred in the basement since that time.
Trial began on June 2, 2003. The district court granted the City's motion for directed verdict on the counts of nuisance and strict liability. On June 5, the jury returned its verdict finding the City seventy percent at fault for damages incurred by Moore. The district court entered judgment in favor of Moore in the amount of $32,534.40.
The City first contends the district court erred in denying its motion for directed verdict on the negligence claim. We review this claim for corrections of errors at law. Iowa R. App. P. 6.4. When considering a motion for a directed verdict, the trial court views the evidence in the light most favorable to the nonmoving party. Regan v. Denbar, Inc., 514 N.W.2d 751, 752 (Iowa Ct.App. 1994). The movant is considered to have admitted the truth of all evidence offered by his adversary and every favorable inference which may fairly and reasonably be deduced from it. Id. A fact question is generated if reasonable minds can differ on how the issue should be resolved. Id. Generally, questions of negligence or proximate cause are for the jury; only in exceptional cases should they be decided as a matter of law. Id.
Iowa courts have long recognized that a municipality which provides drains and sewers to its residents may be liable in tort if it fails to exercise reasonable skill and care in providing that service. Scholbrock v. City of New Hampton, 368 N.W.2d 195, 197 (Iowa 1985). However, a municipality is not liable for damages resulting from a dangerous condition which arises in connection with the operation of a storm sewer system until and unless it has actual or constructive notice of the defect or obstruction and an opportunity to correct it. Elledge v. City of Des Moines, 259 Iowa 284, 291, 144 N.W.2d 283, 287 (1966). The City of Vinton contends directed verdict should have been granted on Moore's negligence claim because no evidence was presented the City had notice of the problem prior to 1999.
When the evidence is viewed in the light most favorable to Moore, we conclude sufficient evidence exists that the City had notice of the problem prior to 1999. Moore testified he made numerous complaints to the City in 1998, including a complaint to Erickson. Erickson acknowledged receiving a complaint from Moore in 1998. Erickson came to the property and looked at the storm sewer drain and outlet pipe, but did no further investigation. Erickson acknowledges the City could have placed a remote camera under the house to determine the cause of the problem, but never did so.
The City also contends the court should have directed verdicts on Moore's personal injury claims because (1) there was no objective signs of physical injury, (2) the alleged physical injury was not witnessed, (3) the type of injury was purely speculative, (4) there were no hospital records, medical records, pharmacy records, lab reports or medical bills submitted, and (5) no expert testimony was offered to support the claim for physical or mental pain and suffering.
As a general rule, the party seeking damages has the burden to prove them. Data Documents, Inc. v. Pottawattamie County, 604 N.W.2d 611, 616 (Iowa 2000). If the record is uncertain and speculative as to whether the party has sustained damages, the factfinder must deny recovery. Id. Here, the evidence viewed in the light most favorable to Moore shows he suffered mental and physical pain as a result of the flooding in his basement. Moore testified regarding the pain he suffered when he received a shock from a water pump in May 1999. While no one witnessed the shock, Moore's brother observed him immediately following the incident, finding him lying on his back at the top of the stairs. He testified Moore was unable to speak, stuttering, and rubbing his chest. Moore's father testified that in the weeks following, Moore did not look well and his arm was bothering him. Testimony was also admitted regarding emotional pain Moore suffered as a result of the shock and the stress caused by the flooding. The evidence here is sufficient to establish past mental and physical pain and suffering. The case of McDougal v. Bormann, 211 Iowa 950, 955-56, 234 N.W. 807, 810 (1931) is instructive:
It is true there was no medical testimony in this case, but there is uncontradicted evidence tending to show that the plaintiff . . . was troubled with sleeplessness, headaches, and general nervousness following the injury. The evidence tends to show that she was not afflicted with any of these difficulties prior to the accident.
Upon reviewing the evidence, we find that there is sufficient evidence in the record to warrant the jury in finding that she suffered from some disturbance of the nervous system by reason of the physical injuries sustained in the collision.
McDougal, 211 Iowa at 955-56, 234 N.W. at 810.
The City next contends the district court erred in allowing Moore leave to amend his pleading to conform to the proof. At the close of trial, the City requested the jury be instructed not to award damages for flooding occurring prior to the spring of 1999. Moore then moved to amend his pleadings to conform to the evidence to allow the jury to award property damages from flooding in 1998. The court granted Moore's request. The City alleges it was unfairly prejudicial to allow Moore to amend his petition because it substantially changed his claim. We review this claim under an abuse of discretion standard. Porter v. Good Eavespouting, 505 N.W.2d 178, 180 (Iowa 1993).
It has been found that amendments are the rule and denials the exception. Davis v. Ottumwa YMCA, 438 N.W.2d 10, 14 (Iowa 1989). Leave to amend is generally granted when there is no substantial change in the defense or issues of the case. Ellwood v. Mid States Commodities, Inc., 404 N.W.2d 174, 179 (Iowa 1987). Although the City argues Moore presented no reasons why the petition could not have been amended prior to trial, the timing of a motion to amend, standing alone, is not a determinative factor in granting such a motion. Scott v. Grinnell Mut. Reinsurance Co., 653 N.W.2d 556, 561 (Iowa 2002). We conclude Moore's amendment to include a claim for damages for flooding occurring in 1998 did not substantially change the defenses or issues in the case. The City was still disputing they had constructive or actual notice as to any defect or obstruction in the sewer line, or that they had any opportunity to correct it. Accordingly, the City was not unfairly prejudiced by Moore's amendment.
Finally, the City contends the district court erred in failing to order a remittitur of the personal injury award. Our review is for errors at law. Iowa R. App. P. 6.4. In reviewing claims of excessive damages, we view the evidence in the light most favorable to the plaintiff. Olson v. Prosoco, Inc., 522 N.W.2d 284, 292 (Iowa 1994). A court must not disturb a jury verdict for damages unless it is flagrantly excessive or inadequate, so out of reason so as to shock the conscience, the result of passion or prejudice, or lacking in evidentiary support. Id. We find the district court did not abuse its discretion in denying the City's request for remittitur.