Opinion
No. 5-852 / 04-1925
Filed February 1, 2006
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
A plaintiff appeals following an adverse jury verdict in her personal injury suit, alleging evidentiary errors by the district court. REVERSED AND REMANDED.
Chad A. Swanson and Erin P. Lyons of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellant.
David L. Riley of Yagla, McCoy Riley, P.L.C., Waterloo, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Patti Morrill appeals following an adverse jury verdict in her personal injury suit against Cedar Valley Pro Fitness and Martial Arts Club, Inc. (Cedar Valley). Morrill asserts the district court erred in excluding evidence of a warning sign posted after her injury, and in admitting a magazine article describing a method of using the type of weight lifting machine Morrill was using at the time she was injured. Because we conclude the district court erroneously admitted prejudicial hearsay evidence, we reverse and remand this matter for a new trial.
I. Background Facts and Proceedings.
Morrill was injured in September 2001 as she was exiting a piece of weightlifting equipment at Cedar Valley. Morrill was being trained by Randy Jackson, another club member. Jackson directed Morrill to use the hack squat machine to perform calf raises in a backward-facing position. When Morrill attempted to exit the machine its weight bench traveled downward, striking and pinning her left leg. Morrill suffered fractures to her left tibia and fibula.
Cedar Valley allowed Jackson to offer his training services, on site, to other club members. Cedar Valley waived Jackson's membership fee, but did not compensate him for providing training services or receive any portion of his training fees.
The hack squat machine contains a mechanism which, if properly engaged by the user, locks the weights in place and allows the user to safely step free of the machine. Morrill had properly locked out the machine on prior occasions, but apparently did not do so at the time of her injury. The machine is also equipped with pegs that limit the downward movement of the bench. The function of the pegs is to limit the range of motion, and the amount of bend or flex in the knee, of the person using the machine. No one present during the time of Morrill's injury could state whether the pegs were in the machine. However, some time after Morrill's injury, Cedar Valley management posted the following sign near the hack squat machine: "DO NOT REMOVE SAFETY PEGS FROM THIS MACHINE!! THEY MUST REMAIN IN AT ALL TIMES! Management."
Morrill filed suit against Cedar Valley. She alleged Cedar Valley was both directly liable for its own negligence, and vicariously liable for the negligence of Jackson. Prior to trial Cedar Valley filed a motion in limine seeking to exclude evidence that the warning sign had been posted after Morrill's injury. Cedar Valley asserted posting the sign was a subsequent remedial measure, and relevant only to establishing its negligence. The court granted the motion, and excluded the evidence.
The court also overruled Morrill's objections to admission of Cedar Valley's exhibit GG, a July 2004 magazine article authored by Jimmy Peña, MS, CSCS. The article, which appeared in the magazine Muscle and Fitness, instructed readers how to perform a reverse hack squat on a hack squat machine. The exhibit was first produced at Jackson's pre-trial evidentiary deposition as a basis for Jackson's opinion that it was appropriate to modify use of the hack squat machine to perform backward-facing calf raises. The court overruled Morrill's objections that the article was hearsay, inappropriate expert opinion, irrelevant, and prejudicial. The court found the exhibit was relevant and admissible to support the opinion "that you can modify [use of] equipment. . . ."
Exhibit GG was admitted during the testimony of Cedar Valley co-owner Russell O'Connell, a martial arts expert. It was also referenced in the live testimony of co-owner Kristi O'Connell, a certified personal trainer, and the deposition testimony of Randy Jackson. All three referenced the article as a basis for their opinion that the hack squat machine could be properly used to perform backward-facing calf lifts. The article was also referenced during the testimony of Morrill's expert witness, Dr. Robin Lund. Dr. Lund testified that it was improper to use the hack squat machine to perform backward-facing calf lifts, and further opined that Muscle and Fitness was "a magazine for bodybuilders," and "by no means should . . . be used as a tool to teach people how to train effectively."
The transcripts in this appeal were prepared in a piecemeal fashion, making it difficult to ascertain when and if Jackson's deposition was admitted into evidence. However, as both parties reference portions of the deposition, we presume the portions of the deposition that appear in the appendix were properly admitted into evidence.
Issues of vicarious and direct liability on the part of the club, and comparative fault on the part of Morrill, were submitted to the jury. The jury found that Jackson was not an agent or employee of Cedar Valley, and thus that Cedar Valley was not vicariously liable for any alleged fault of Jackson. The jury further found that both Cedar Valley and Morrill were at fault and that their respective faults were proximate causes of Morrill's injury. The jury apportioned forty percent of the fault to Cedar Valley, and sixty percent of the fault to Morrill. Accordingly, the jury did not reach the issue of damages. Morrill appeals.
II. Scope and Standards of Review.
We review a district court's evidentiary rulings for the correction of errors at law. Iowa R. App. P. 6.4; Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 265 (Iowa 1998). Generally, trial courts are granted broad discretion concerning the admissibility of evidence, and reversal is warranted only if the court clearly abused its discretion, to the complaining party's prejudice. Horak v. Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002); see also Iowa R. Evid. 5.103( a). However, the court does not have discretion to admit hearsay evidence unless admission is provided for by the constitution, statute, or court rule. See Iowa R. Evid. 5.802.
III. Magazine Article.
We turn first to Morrill's contention that the district court erred in admitting the July 2004 article from Muscle and Fitness magazine. We agree with Morrill that the article constituted hearsay.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801. Cedar Valley asserts that, while the article is tantamount to an out of court statement, it was not offered to prove the truth of the matter asserted. Cedar Valley contends that, rather, it was offered to demonstrate the basis of Jackson's and the O'Connells' opinions Morrill was properly using the hack squat machine. We cannot agree.
As our supreme court has recently noted:
"[A] statement that would ordinarily be deemed hearsay is admissible if it is offered for a non-hearsay purpose that does not depend upon the truth of the facts presented." Thus, the evidence must have "value independent of the truth of the matter asserted in the statement." If the hearsay statement must be believed for the evidence to be relevant to the case, then it is being offered for the truth of the matter asserted and is inadmissible hearsay.
Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 182 (Iowa 2004) (citations omitted).
Here, the article is relevant as a basis for Jackson's and the O'Connells' opinions only if the assertions in the article are true — that you can use a hack squat machine in a backward-facing position. Cedar Valley offers no other basis for admitting the evidence, and it does not appear to fall within any exception to the hearsay rule. See Iowa Rs. Evid. 5.803-.804. Accordingly, the article was inadmissible hearsay and should have been excluded by the district court.
Admission of the evidence is presumed prejudicial to Morrill "unless the contrary is affirmatively established." Frunzar v. Allied Prop. Cas. Ins. Co., 548 N.W.2d 880, 887 (Iowa 1996). Cedar Valley asserts admission of the article was not prejudicial because it was merely cumulative of other evidence in the record. See Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa 2002) ("[W]here substantially the same evidence is in the record, erroneously admitted evidence will not be considered prejudicial."). However, the substantially similar evidence relied upon by Cedar Valley is the opinions of Jackson and the O'Connells — opinions that were based, in large part, upon the article. Moreover, the hearsay evidence goes to an issue at the heart of this matter. See Gacke, 684 N.W.2d at 184 (holding admission of hearsay was prejudicial, in part, because the evidence "directly addressed [a] central issue" in the case). Under the particular circumstances of this case, we cannot say the absence of prejudice has been affirmatively shown. We accordingly reverse and remand this matter for a new trial. See id. IV. Warning Sign.
Because the matter is likely to arise upon retrial, we address Morrill's contention that the district court erred when it excluded evidence of the sign posted by Cedar Valley after Morrill's accident as evidence of a subsequent remedial measure. A subsequent remedial measure is one "which, if taken previously, would have made the event less likely to occur. . . ." Iowa R. Evid. 5.407. To assess whether the evidence at issue falls within this definition, we must look to the nature of Morrill's claim.
As submitted to the jury, Morrill's direct negligence claim was based upon an allegation that Cedar Valley had "select[ed] and provid[ed] a piece of weightlifting equipment for use to its patrons that had no posted instructions on its proper use and no posted warnings regarding potential unsafe use," and that this was a proximate cause of Morrill's injuries. Morrill contends that if the pegs had been in the machine while she was using it, she would not have been injured. Implicit in Morrill's argument is the assertion that, if proper instructions and warnings had been posted, she or Jackson would have made sure the pegs were in the machine, thus avoiding her injury. In light of the nature of this claim, posting a sign regarding the proper use of the machine is fairly categorized as an action that, if taken previously, would have made Morrill's injury less likely.
The jury was instructed that, in order to prevail on her direct liability claim, Morrill was required to prove Cedar Valley Pro Fitness was negligent in one or more of the following ways:
a.In failing to properly supervise the personal training activities of Randy Jackson, Sr.
b.In failing to ensure that Randy Jackson, Sr. was properly educated and certified to conduct personal training in its facility.
c.In selecting and providing a piece of weightlifting equipment for use to its patrons that had no posted instructions on its proper use and no posted warnings regarding potential unsafe use.
Morrill contends evidence of posting the sign was relevant to her claim "relat[ing] to the Club's duty to select, provide and maintain safe equipment for use by club members." Morrill does not contend the evidence was relevant to any duty of Cedar Valley to supervise, or ensure the education and certification of Randy Jackson.
However, evidence of a subsequent remedial measure is not automatically subject to exclusion. While the evidence may not be admitted to prove the defendant's negligence or fault,
[w]hen proffered evidence is relevant and essential to showing the existence of a condition upon which the claim depends, it should not be excluded under rule [5.]407 on the basis that it might also tend to establish negligence. . . . [T]he procedure in such cases is to give a proper limiting instruction.
McIntosh v. Best Western Steeplegate Inn, 546 N.W.2d 595, 597 (Iowa 1996); see also Iowa R. Evid. 5.407.
Morrill contends that evidence of posting the sign was admissible to show the condition of the machine at the time of her injury, i.e., that the pegs had been removed. Although the breach of duty alleged is primarily a failure to instruct or warn, we agree with Morrill that the presence or absence of the pegs was relevant to the extent her claim depended upon an allegation that the lack of instruction or warning led to a condition of the equipment (the absence of pegs) which in turn proximately caused her injury. However, under the current record, we cannot conclude evidence of the subsequent warning sign was essential to establishing that condition.
We find the facts of this case quite different from those present in the case of McIntosh v. Best Western Steeplegate Inn, 546 N.W.2d 595 (Iowa 1996), upon which Morrill places so much reliance. There, the condition of the premises at the time of the plaintiff's injury was in dispute. Photographs of the area where the plaintiff had allegedly fallen, taken the day after the accident, were introduced, and did not show any ice. McIntosh, 546 N.W.2d at 596. The plaintiff offered testimony that there was ice present at the time of the fall, while the defendant offered testimony that the photographs accurately depicted the condition of the area at the time of the fall. Id. The supreme court concluded it was error to exclude evidence that a deicing compound had been applied to the area shortly after the fall, because that evidence was "essential" to establishing the plaintiff's claim. Id. at 597.
Here, in contrast, Cedar Valley offered no evidence that the pegs were in the machine at the time of the accident. In fact, the record indicates that no individual, including Morrill, had any knowledge regarding whether the pegs were in the machine at the time of the accident. Moreover, the very nature of the accident, including the fact that Morrill's leg was pinned under the machine, and evidence of how the machine operates, gave rise to a reasonable inference that the pins were not in the machine at the time of the accident. Thus, the evidence admitted on the issue only supports Morrill's position.
During an offer of proof Cedar Valley's manager, Carol Wermerskirchen, stated that "[s]ombody" had told her the pegs were not in the machine at the time of the accident. She could not remember who had told her that, but "[i]t could have been my brother Scott maybe saying something. I don't know." Wermerskirchen clarified that she did not really understand how the machine worked, but posted the sign because she thought the pegs were "safety pegs." She also stated that after the sign was posted Kristi O'Connell informed her that "[t]hese are not safety pegs. They're adjustments on different levels that you use the machine." Even if this testimony would not be excluded as inadmissible hearsay, see Iowa R. Evid. 5.801, it merely adds further support to Morrill's contention that the pegs were not in the machine at the time of the accident.
Morrill asserts Cedar Valley has consistently maintained that the safety pegs were in the machine at the time of the accident, but fails to support this contention with any reference to the record. See Iowa R. App. P. 6.14(1)( f) (requiring parties to support arguments with citation to pertinent parts of the record). Morrill also points to a portion of Randy Jackson's deposition testimony where he asserted the pegs would not "have made a difference in limiting the . . . distance that the carriage would have traveled down and actually . . . prevent[ed] the carriage from pinching or pinning [Morrill's] leg into the machine." While this testimony is relevant on the question of whether the presence of pegs would have limited or avoided Morrill's injury, it does not tend to establish the pegs were in the machine at the time of the accident.
Under the record submitted on appeal, we cannot conclude the district court erred in excluding the evidence of the subsequent remedial measure. We recognize, however, that the parties will make a different record upon retrial, and that it is possible the new record will support a different conclusion than the one we reach today. If the new record demonstrates that evidence of the warning sign is a subsequent remedial measure "relevant and essential to showing the existence of a condition upon which the claim depends," McIntosh, 546 N.W.2d at 597, then that evidence should be admitted, accompanied by a proper limiting instruction.
V. Conclusion.
The district court erred in admitting the Muscle and Fitness magazine article. The article constituted inadmissible hearsay, and the absence of prejudice has not been affirmatively shown. We accordingly reverse and remand this matter for a new trial.