Opinion
No. 3-033 / 02-1040
Filed March 26, 2003
Appeal from the Iowa District Court for Bremer County, Paul W. Riffel, Judge.
City of Janesville appeals from a jury verdict and the resulting district court order favoring cross-claim defendants, Fratzkes. AFFIRMED.
Jim DeKoster and Beth Hansen of Swisher Cohrt, P.L.C., Waterloo, for appellant.
David Riley of Yagla, McCoy Riley, P.L.C., Waterloo, for appellees.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
City of Janesville appeals from a jury verdict and resulting district court order favoring cross-claim defendants, Fratzkes. We affirm.
I. Background facts and proceedings. On August 28, 1998, Rebecca Williams tripped on the public sidewalk in front of the Janesville Locker, owned by Paul and Nancy Fratzke. Williams was injured in the fall, and she filed a negligence suit naming both the Fratzkes and the City of Janesville as defendants. The City of Janesville filed an answer and cross-claim against the Fratzkes for indemnity as provided by title VIII chapter 2, section 8-2.19 of the Janesville City Code. The City then tendered defense of the action to the Fratzkes who declined the tender.
Both defendants settled Williams' claims against them through mediation. The settlement agreement provided that each defendant would pay Williams $21,250. The defendants then agreed to proceed to trial on Janesville's cross-claim for indemnity.
A jury trial was held on June 12 and 13, 2002. The jury returned a special verdict finding the Fratzkes were not at fault. The district court then entered its order denying Janesville's cross-claim for indemnity. Janesville appeals alleging the district court erred by instructing the jury it could find the Fratzkes at fault only if the sidewalk was defective as defined in the city's ordinance.
II. Scope of review and preservation of error. We review the trial court's jury instructions for errors at law. Iowa R.App.P. 6.4; Sheets v. Ritt, Ritt, Ritt, Inc., 581 N.W.2d 602, 604 (Iowa 1998); Shinn v. Iowa Mut. Ins. Co., 610 N.W.2d 538, 541 (Iowa Ct.App. 2000). The only grounds for objections we may consider on appeal are those specified in objections to the trial court. Shepherd Components, Inc. v. Brice Petrides-Donohue Assocs. Inc., 473 N.W.2d 612, 618 (Iowa 1991). To preserve error for our review, a party must specify the subject and grounds of the objection. Iowa R.Civ.P. 1.924; Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 633, 638 (Iowa 1998). The objection must be sufficiently specific to alert the district court to the basis for the complaint so, if error does exist, the court may correct it before placing the case in the hands of the jury. Grefe Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994).
Fratzkes contend Janesville's objection to Jury Instruction 13A was too vague to have effectively preserved error. We disagree. Although the city's wording of its objection may have been somewhat unclear, the district court understood the nature of the objection, and it is the same objection the city now makes on appeal.
III. Discussion. In Instruction 13, the district court instructed the jury:
In order to recover on its indemnity claim against Defendants Paul J. Fratzke and Nancy J. Fratzke, Defendant City of Janesville must prove all of the following propositions:
1. The public sidewalk in front of the Janesville Locker was defective as defined Instruction No. 13A.
2. The Fratzkes knew or in the exercise of reasonable care should have known of the defective condition.
3. The Fratzkes were negligent in failing to repair, replace or reconstruct the public sidewalk.
4. The defective condition proximately caused Plaintiff's damage.
If the City of Janesville has failed to prove all of these propositions, the City is not entitled to recover from the Fratzkes. If the City has proved all of these propositions, you will then consider whether Plaintiff Rebecca Williams was at fault.
The district court then defined "defective sidewalk" in Instruction 13A:
Concerning proposition No. 1 of Instruction No. 13, the ordinance of the City of Janesville, Iowa at issue herein defines "defective sidewalk" as meaning any public sidewalk exhibiting one or more of the following characteristics:
A. Vertical separations equal to three-fourths (3/4) inch or more.
B. Horizontal separations equal to three-fourths (3/4) inch or more.
C. Holes or depressions equal to three-fourths (3/4) inch or more and at least four (4) inches in diameter.
D. Spalling over fifty percent (50%) of the surface of a single square of the sidewalk with one or more depressions equal to one-half (1/2) inch or more.
E. Spalling over less than fifty percent (50%) of a single square of the sidewalk with one or more depressions equal to three-fourths (3/4) inch or more.
F. A single square of sidewalk cracked in such a manner that no part thereof has a piece greater than one square foot.
G. A sidewalk with any part thereof missing to the full depth.
H. A change from design or construction grade equal to or greater than three-fourths (3/4) inch per foot.
Janesville objected to these instructions and requested the district court modify its definition of "defective sidewalk" to "a public sidewalk exhibiting an unreasonable risk of danger to a pedestrian." The district court denied this request. Janesville contends Instruction 13A is a misstatement of Iowa law and the Janesville city ordinance because it allowed the jury to find the Fratzkes at fault only if it found the sidewalk was defective as defined in Janesville City Code section 8-2.01(9).
Iowa Code section 364.14 states:
When an action is brought against a city for personal injuries alleged to have been caused by its negligence, the city may notify in writing any person by whose negligence it claims the injury was caused. The notice shall state . . . that the city believes that the person is liable to it for any judgment rendered against the city, and asking the person to appear and defend. . . . A city may maintain an action against the person notified to recover the amount of the judgment together with all expenses incurred by the city in the suit.
Iowa Code § 364.14 (2001). Janesville argues that because the Iowa statute provides for the indemnification of a city by a third-party for the third-party's negligence, and because the Janesville city ordinance was based upon this statute, the district court should have instructed the jury on a more general negligence standard, rather than the specific definition used in Instruction 13A.
However, the Janesville ordinance establishing the city's right to indemnity provides:
If the abutting property owner does not maintain sidewalks as required and action is brought against the city for personal injuries alleged to have been caused by the city's negligence, the city may notify in writing any person by whose negligence it claims the injury was caused.
Janesville, Ia., City Code § 8-2.12 (1990) (emphasis added). Title VIII, chapter 2 of the Janesville City Code dictates numerous responsibilities for the maintenance of public sidewalks by abutting property owners. Section 8-2.13 specifies the duty of the abutting property owner regarding the upkeep of sidewalks:
It shall be the duty of the abutting property owner at any time or upon receipt of 90 days' notice from the city to repair, replace or reconstruct all broken or defective sidewalks in the street right-of-way abutting his or her property.
Janesville, Ia., City Code § 8-2.13 (1990). The city code defines "defective sidewalk" in section 8-2.01(9):
"Defective Sidewalk": shall mean any public sidewalk exhibiting one or more of the following characteristics:
A. Vertical separations equal to three-fourths (3/4) inch or more.
B. Horizontal separations equal to three-fourths (3/4) inch or more.
C. Holes or depressions equal to three-fourths (3/4) inch or more and at least four (4) inches in diameter.
D. Spalling over fifty percent (50%) of the surface of a single square of the sidewalk with one or more depressions equal to one-half (1/2) inch or more.
E. Spalling over less than fifty percent (50%) of a single square of the sidewalk with one or more depressions equal to three-fourths (3/4) inch or more.
F. A single square of sidewalk cracked in such a manner that no part thereof has a piece greater than one square foot.
G. A sidewalk with any part thereof missing to the full depth.
H. A change from design or construction grade equal to or greater than three-fourths (3/4) inch per foot.
Janesville, Ia. City Code § 8-2.01(9). Janesville argues that despite the clear language of the city ordinance, the Fratzkes' duty to the city extends beyond conformance with the technical requirements of the ordinance, and encompasses the avoidance of all negligence in the maintenance of the public sidewalk. More particularly, Janesville contends the jury instructions should have permitted the jury to find Fratzkes negligent "if the sidewalk in question posed an unreasonable risk of danger to pedestrians."
Iowa law clearly prefers a specific instruction on negligence as opposed to a general one. "On negligence claims not involving res ipsa loquitur, our procedure requires that a plaintiff identify the specific acts or omissions relied on to generate a jury issue." Bigalk v. Bigalk, 540 N.W.2d 247, 249 (Iowa 1995). "Each specification should identify either a certain thing the allegedly negligent party did which that party should not have done, or a certain thing that party omitted that should have been done, under the legal theory of negligence that is applicable." Coker v. Abell-Howe Co., 491 N.W.2d 143, 151 (Iowa 1992). See also Herbst v. State, 616 N.W.2d 582, 585-86 (Iowa 2000). Although Iowa Code section 364.14 allows a city to seek indemnity from a property owner for any negligence of the property owner, this does not require the district court to give a generalized negligence instruction. In this case, the Janesville City Code specifically defined the attributes of sidewalks for which abutting property owners owed to the city a duty to maintain and repair. The district court's instructions correctly defined "defective" consistent with the city code and we therefore find no error on this issue.