Anthony v. State

• Decision Date: 18 September 1985
• Docket Number: No. 84-1176,84-1176
• Citation: 374 N.W.2d 662
• Parties: Rex ANTHONY and Pamela Anthony, Appellants, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 662

374 N.W.2d 662

Rex ANTHONY and Pamela Anthony, Appellants, v. STATE of Iowa, Appellee.

No. 84-1176.

Supreme Court of Iowa.

Sept. 18, 1985.

Raymond Gazzo and Carol Coppola of Coppola, Trout, Taha and Gazzo, Des Moines, and Philip Miller, Amy Christensen Couch and Margaret La Marche, Des Moines, for appellants.

Thomas J. Miller, Atty. Gen., Shirley Steffe and Patrick Hopkins, Asst. Attys. Gen., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, LARSON, CARTER, and WOLLE, JJ.

McCORMICK, Justice.

The trial court ruled for the State in this tort action based on the rape of plaintiff Pamela Anthony by a state prisoner on work release. Plaintiffs contend that the court erred in an evidentiary ruling and in its holding that the State did not negligently breach several duties to them. Because we find no reversible error, we affirm the trial court.

The questions are whether the court erred in excluding an exhibit showing changes in work-release policies, in holding that the State exercised ordinary care in devising the prisoner's work-release plan, in finding that the State was not negligent in exercising control and supervision of the prisoner, and in ruling that the State had no duty to warn them of the prisoner's history of sex crimes.

As a preliminary issue we must address plaintiffs' motion for partial adjudication and motion to strike portions of the State's brief. The motion was ordered submitted with the appeal. The State asserts in its brief several legal defenses to plaintiffs' action that were rejected by the trial court. It urges those defenses as alternative grounds for affirmance. Plaintiffs contend the State cannot do this because it did not cross-appeal. The rule, however, is that a party may seek affirmance on appeal by relying without a cross-appeal on grounds rejected by the trial court as well as grounds that were accepted. See Hamilton v. City of Urbandale, 291 N.W.2d 15, 17 (Iowa 1980). The failure to cross-appeal merely precludes the party from obtaining a more favorable judgment. See Prestype, Inc. v. Carr, 248 N.W.2d 111, 121 (Iowa 1976). Plaintiffs assert this rule is limited to appeals from summary judgment, judgments of dismissal or judgments on directed verdicts, but no such limitation exists. We overrule plaintiffs' motion for partial judgment and to strike.

One other preliminary matter requires attention. In their appellate brief plaintiffs attack several trial court findings of fact on the ground they are not supported by substantial evidence. Those findings concerned issues on which plaintiffs had the burden of proof. The review is not for substantial evidence:

When the trial court in a law action tried to the court denies recovery because of a party's failure to carry his burden on an issue, we will not interfere on appeal unless we find the party carried his burden as a matter of law. The evidence in the party's favor must be so overwhelming that only one reasonable inference could be drawn. On review we examine the evidence in the light most favorable to the judgment.

Roland A. Wilson v. Forty-O-Four Grand Corp., 246 N.W.2d 922, 925 (Iowa 1976).

Little dispute exists concerning the relevant events in the present case. The controversy concerns the inferences to be drawn from the evidence and their legal effect.

Robert Sirovy was sent to the reformatory at Anamosa in 1979 to serve concurrent indeterminate five-year sentences for terrorism and escape. The terrorism conviction arose from an incident in which he ordered a female co-worker to disrobe at knifepoint while she was giving him a ride home. In 1977 he had been convicted and sentenced to one year in the county jail for assault with intent to inflict great bodily injury based on the alleged rape of his brother's girlfriend. While at the medical security facility at Oakdale during his prison sentence, he reportedly threatened another prisoner with homosexual assault.

He was scheduled for discharge from prison upon completion of his sentences on November 26, 1981. He had been denied parole. In April 1981 he applied for work release which was granted by an institutional work-release committee on May 20, 1981.

Sirovy arrived at the Des Moines work release center on July 9, 1981. He underwent a brief orientation and signed a work-release plan. The work-release plan was a six-page mimeographed form prepared by state officials setting forth work release conditions and rules. The plan contained a blank for "special conditions" but none were imposed on Sirovy. The counselor prepared an "action plan" for Sirovy but it was not ready until after the material events in this case and would not appear to have affected them.

As one condition of work release, Sirovy was obliged to find a job. He obtained a job with Hawkeye Roofing Company on July 10, 1981. The record does not show that either he or the work-release officials told the employer he was on work release or anything about his criminal record. He started work on July 13.

On July 16, he was assigned to work with a roofing crew repairing a storm-damaged roof on the home of plaintiffs Pamela and Rex Anthony. In the morning of July 20, while Pamela was alone in the home with her two small children, Sirovy sought and received her permission to use the bathroom. A few minutes later he returned to the door with a request to use the telephone to call the foreman. Sirovy had been left alone at the job site. When he entered the home this time, Sirovy picked up a kitchen knife. He found Pamela in her daughter's room, ordered her at knifepoint to remove her clothes, and raped her. He threatened to kill her and her family if she reported the incident.

Pamela subsequently did report it, and Sirovy was charged and convicted of second-degree sexual abuse. Plaintiffs later brought the present tort claim against the State. They alleged the State was negligent in preparing the work-release plan, in controlling and supervising Sirovy, and in failing to warn them about Sirovy's background. The case was tried to the court, and the trial court subsequently filed an extensive decision rejecting the claim and entering judgment for the State. This appeal followed. No issue is presented regarding damages.

I. The evidentiary ruling. Plaintiffs offered an excerpt from the state's current work-release manual into evidence. This portion of the work-release manual was not in effect at the time of the 1981 events. The 1981 manual was separately offered and received as a State exhibit. The excerpt offered by plaintiffs contained written statements of state policy concerning restrictive conditions on employment placement. The State objected to the exhibit on relevancy and materiality grounds. The trial court reserved ruling, and in its final ruling excluded the exhibit "with the exception of so much of same as is consistent with the previously mentioned testimony of [the counselor] pertaining to unwritten employment policies."

In contending the court erred in its ruling, plaintiffs rely on Iowa Rule of Evidence 407 which provides for an exception to the general rule excluding evidence of subsequent remedial measures to prove negligence. The exception permits admission when the evidence is offered for the purpose of proving "feasibility of precautionary measures." Plaintiffs assert the exhibit was admissible to show the State's control of work releasees and the feasibility of precautionary measures relating to the releasees' choice of employment. The State suggests several grounds for upholding the trial court ruling, but we find it necessary to consider only one ground.

A sufficient reason for upholding the ruling is the failure of plaintiffs to alert the court at trial to their present theory of admissibility. When evidence that is apparently inadmissible is offered for a limited purpose, the proponent of the evidence has the burden to identify the limited purpose before the trial court rules. See Lemke v. Mueller, 166 N.W.2d 860, 870-71 (Iowa 1969). The present situation comes within this rule.

We therefore find no reversible error in the trial court's ruling excluding part of the proffered exhibit.

II. The work-release plan. The trial court found that the State exercised due care in formulating a work-release plan for Sirovy. Plaintiffs contend the evidence does not support this finding. Their contention more correctly should be that the evidence was so strong the court was compelled as a matter of law to make a contrary finding. We believe, however, that the result must be upheld in any event.

Both in the trial court and this court, the State urged the discretionary function exception to tort liability under section 25A.14(1). That provision bars negligence claims against the state "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion be abused."

State officials exercise discretion at two stages in work-release cases. First they decide whether the person will be placed on work release. Next, if the person is to be released, they are required to decide the terms of a work-release plan:

If the recommendation is approved, the committee shall adopt a work release plan for the applicant which shall contain such terms and conditions as may be necessary and proper.

Iowa Code § 247A.4. The parties agree and the court held that the discretionary function exception applies to the first decision. The State disagrees with plaintiffs' assertion and the court's holding that the exception does not immunize the second decision. We hold that the second decision also comes within the discretionary function exception.

Plaintiffs confuse the duty to adopt a plan with discretion to determine its terms. The committee complied with the statutory mandate to adopt a plan. No dispute exists about that. The controversy concerns whether the plan...