Opinion
No. 5-870 / 05-0408
Filed February 1, 2006
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
Dawn Wendhausen appeals an adverse jury verdict on her personal injury claim. AFFIRMED.
Daniel D. Bernstein and William J. Bribriesco of William J. Bribriesco and Associates, Bettendorf, for appellant.
Roger A. Lathrop and Edward J. Rose of Betty, Neuman McMahon, P.L.C., Davenport, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Dawn Wendhausen appeals an adverse jury verdict on her personal injury claim. She argues the district court erred by allowing certain testimony at trial and by failing to give a jury instruction she requested. We affirm.
I. Background Facts Proceedings
Wendhausen began working for Per Mar Security as a security guard in February 2002. In December 2002, Per Mar assigned Wendhausen to patrol the Iowa American Water Company premises. She worked the second shift, from 3 p.m. to 11 p.m. weekdays, patrolling the outside premises. On February 10, 2003, Wendhausen slipped on a patch of ice on an outdoor walkway at Iowa American Water while performing her duties as an employee of Per Mar and twisted her right knee.
Wendhausen filed a negligence suit in August 2003, alleging Iowa American Water created an unsafe and hazardous condition and failed to warn her of its existence or safeguard against such condition. In its answer, Iowa American Water raised several affirmative defenses, including comparative fault. The matter went to jury trial in November 2004.
At trial, Wendhausen was asked about her job duties as an employee of Per Mar. She testified she understood it was her responsibility to abide by "post instructions" she received from Per Mar, setting forth her job duties. The instructions included the following: report hazards; watch for snow accumulation and icy spots; and observe safety precautions, such as watching for slippery surfaces and walking around hazards to avoid slip and fall injuries. Wendhausen conceded, however, that as of the day of the accident she had not read the instructions since first starting her employment with Per Mar.
Wendhausen explained to the jury that upon her arrival at Iowa American Water each day she was to speak with the Per Mar security guard assigned to the first shift, obtain the daily log book, start her daily log entries, and proceed with her rounds. On the day of the accident, the Per Mar security guard working the first shift did not report any unusual conditions to Wendhausen. Prior to falling, Wendhausen observed snow on a hill, sidewalk, steps and bridge walkway, all located on the premises.
The jury returned a verdict finding Iowa American Water fifteen percent at fault and Wendhausen eighty-five percent at fault. The district court entered judgment in favor of Iowa American Water. Wendhausen filed a motion for new trial, which the district court denied.
Wendhausen appeals, arguing the district court erred by (1) permitting evidence and testimony of Wendhausen's duties as an employee of Per Mar, and (2) failing to give a jury instruction that Iowa American Water had a non-delegable duty to maintain its property in a reasonably safe condition and to warn those on the property of unsafe conditions.
II. Evidence of Wendhausen's Duties
We review evidentiary rulings of the district court for an abuse of discretion. R.S. Fox, L.L.L.P. v. Board of Review, 656 809, 811 (Iowa Ct.App. 2002).
Wendhausen filed a motion in limine to prohibit questions or reference to Per Mar's comparative fault. Following her testimony, Wendhausen renewed the motion in limine "to prevent any argument, especially in closing arguments" that Per Mar's fault should be considered or assigned to Wendhausen. The district court granted the motion to the extent that it "seeks to prevent [Iowa American Water] from arguing that Per Mar is at fault in this case."
On appeal, Wendhausen argues the district court erred by permitting certain testimony concerning the Per Mar "post instructions." We conclude Wendhausen has failed to preserve error on this issue by failing to object to questioning by defendant at trial. See Kalell v. Petersen, 498 N.W.2d 413, 415 (Iowa Ct.App. 1993) (stating the general rule that granting or rejecting a motion in limine is not reversible error; objection should be made when the matter is presented at trial in order to preserve error unless the ruling on the motion in limine is "an unequivocal holding concerning the issue raised"). Even if Wendhausen preserved error at trial, she has waived the argument on appeal by failing to cite to any authority to support her argument. See Iowa R. App. P. 6.14(1)(c).
III. Jury Instruction
We review alleged errors in jury instructions for correction of errors at law. Wells v. Enterprise Rent-a-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004). "Error in giving or refusing to give a particular jury instruction does not merit reversal unless it results in prejudice to the party." Id.
Wendhausen requested a jury instruction setting forth that Iowa American Water had a non-delegable duty to exercise reasonable care in keeping its premises safe, irrespective of the conduct of an independent contractor such as Per Mar. The instruction was based on Restatement (Second) of Torts section 425 (1965) and Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699 (Iowa 1995) (adopting restatement section 425 with respect to business invitees). The district court concluded the proposed instruction was "a correct statement of Iowa law, but it is not . . . an issue of law that is presented in this case." It denied Wendhausen's request.
Section 425 provides:
One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business, . . . is subject to the same liability for physical harm caused by the contractor's negligent failure to maintain the land . . . in reasonably safe condition, as though he had retained its maintenance in his own hands.
Restatement (Second) of Torts § 425.
We agree with the district court. The liability of Per Mar was not an issue in the case. Rather, the issue raised by defendants was Wendhausen's comparative fault, as determined by the reasonableness of her conduct while on the premises of Iowa American Water. The reasonableness of her conduct on the day in question necessarily related to the nature of her employment with Per Mar. The proposed instruction would have raised the issue of Per Mar's liability, thereby confusing the jury and, as the district court concluded, "address[ing] essentially a non-issue in this case." The district court correctly denied Wendhausen's requested jury instruction.