Bangs v. Maple Hills, Ltd.

Decision Date21 October 1998
Docket NumberNo. 97-1176,97-1176
Citation585 N.W.2d 262
PartiesBecky Jean BANGS and Arlan Meloy Bangs, Appellees, v. MAPLE HILLS, LTD., Appellant.
CourtIowa Supreme Court

Ted J. Wallace, Bettendorf, for appellant.

William Bauer of Bauer, Schulte, Hahn, Swanson & Brown, Burlington, for appellees.

Considered en banc.

McGIVERIN, Chief Justice.

Although other issues are raised, the main question here involves a district court ruling that admitted evidence of a subsequent remedial measure taken by defendant after plaintiff Becky Jean Bangs fell on defendant's property.

The court of appeals concluded that the district court erred. We agree with the district court ruling and thus vacate the court of appeals decision and affirm the district court.

I. Background facts and proceedings.

On February 25, 1994, Becky Bangs was visiting the Maple Hills apartment complex, owned by defendant Maple Hills Ltd., in Burlington to perform home health care services for a client that lives in the complex. Becky was injured when she fell after slipping on a metal drainage grate separating two portions of the sidewalk. According to Becky, the metal grate tipped forward as she stepped on it, causing her to fall to the ground. Becky reported her fall to Richard Snider, the maintenance supervisor at Maple Hills Apartments.

Later, Becky and her husband Arlan filed a petition against defendant Maple Hills Ltd., the owner of Maple Hills Apartments, seeking to recover for Becky's injuries and asserting a loss of consortium claim. In the petition, plaintiffs alleged that defendant was negligent in failing to properly maintain the sidewalk and grate and failing to warn Becky, as an invitee, of the danger created by the defective sidewalk and grate.

Trial to a jury was held. After opening statements were completed, but before plaintiffs began presentation of their evidence, defendant moved to exclude any photographs offered by plaintiffs, showing that the grate had been welded after Becky's fall. Defendant contended that the photographs constituted evidence of a subsequent remedial measure and were therefore barred under Iowa rule of evidence 407. The court sustained defendant's motion and ruled that the photographs were inadmissible.

At trial, witnesses described the grate as a solid sheet of steel approximately one-fourth inch thick and about fifty inches across. The grate lies flush between two sections of sidewalk and spans a drainage trench or gully. The grate itself rests on a three-quarter inch lip approximately three to four inches above the ground. The purpose of the grate is to allow water to drain away from the building.

At trial, Becky testified that when she stepped onto the grate, it slipped or tipped forward causing her to fall. She further testified that although it had snowed earlier that day, there was no snow on the sidewalk when she fell. Becky also testified that she was not looking at the grate at the time she fell. She further explained that she was familiar with the sidewalk and location of the grate, having walked over the grate approximately twelve times a week for the past two to three years. During that time, she had never experienced a problem with the grate tipping forward.

Richard Snider, the maintenance supervisor at the apartment complex, testified that the grate had tilted or slipped approximately four to six times in the thirteen years he had been maintenance supervisor. He also testified that according to his knowledge, no one had ever fallen at the location of the grate during his time as maintenance supervisor. He also stated that he had cleaned the snow from the sidewalk the morning of Becky's fall and that the grate was not tilted or otherwise defective at that time.

Linda Lozano, the manager of the apartment complex, testified that she heard that another tenant had fallen on the grate in the past.

At the close of plaintiffs' evidence and of all evidence, defendant moved for a directed verdict arguing that plaintiffs failed to introduce evidence proving that the grate was defective or that defendant had any actual or constructive notice of a problem with it. The court overruled the motion.

During closing arguments, which were not reported, plaintiffs' attorney commented to the jury that defendant could and should have welded the grate to prevent it from tipping or slipping. In response to plaintiffs' counsel's comments, defendant's attorney allegedly argued to the jury that welding the grate "would not work." At this point, a recess was taken. After hearing arguments from counsel, the court allowed plaintiffs to reopen the evidentiary record to allow them to introduce photographs showing that the grate had been welded at some time after Becky's fall.

Thereafter, Becky testified concerning photographs she took of the grate after her fall which showed that the grate had been welded. Following this testimony and admission of the photographs into evidence, the record was again closed and counsel resumed closing arguments.

The jury returned a verdict in plaintiffs' favor, finding Becky one percent at fault and defendant ninety-nine percent at fault. The jury awarded damages to both Becky and her husband and judgment was entered against defendant thereon.

Thereafter, defendant filed a motion for judgment notwithstanding the verdict and a motion for new trial. The court denied the motions. In its ruling, the court stated that plaintiffs were allowed to introduce the photographs showing the welded grate after defendant "argued it was not feasible to attach the metal grate to the channel over which it covered." The court found that this statement "tended to mislead the jury, thus the Court allowed the record to be reopened so that the jury could see that it was feasible to attach the metal grate to the channel."

Defendant appealed, asserting that the district court erred in: (1) admitting into evidence the photographs showing that defendant had welded the grate after Becky's fall; (2) overruling its motion for a directed verdict; and (3) failing to properly instruct the jury concerning the law of negligence. Upon our transfer, the court of appeals concluded that the district court erred in admitting the photographs showing the welded grate and therefore reversed and remanded the case for a new trial. Thereafter, we granted plaintiffs' application for further review.

II. Admissibility of the photographs under Iowa rule of evidence 407.

Defendant contends that the district court erred in admitting into evidence the photographs showing the grate had been welded at a time after plaintiff Becky's fall. Defendant asserted that admission of the photographs violated Iowa rule of evidence 407.

A. Standard of review.

We review the district court's ruling concerning admission of evidence for correction of errors at law. Iowa R.App. P. 4. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected,...." Iowa R. Evid. 103(a). Cf. Tucker v. Caterpillar, Inc., 564 N.W.2d 410, 414 (Iowa 1997) (although district court erred in applying rule 407 to exclude evidence concerning warning decal, exclusion of evidence did not affect plaintiff's substantial rights because jury could conclude from other lawfully admitted evidence that defendant was negligent). A trial court is granted a broad range of discretion concerning the admissibility of evidence. Bingham v. Marshall & Huschart Machinery, 485 N.W.2d 78, 80 (Iowa 1992).

B. Analysis.

Rule 407 of the Iowa rules of evidence provides as follows:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

(Emphasis added.) The public policy supporting the rule is "that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident." Tucker, 564 N.W.2d at 412-13 (quoting Iowa R. Evid. advisory committee's comment (1983)).

For purposes of addressing whether the district court properly admitted the photographs showing the welded grate, we deem it necessary to refer to relevant portions of the trial record.

The record shows that in its motion in limine, defendant argued that the photographs showing the welded grate were not admissible under rule 407. In response, plaintiffs argued that the photographs were admissible "not to prove negligence, but simply to describe a picture of the area in which the injury occurred." The court sustained defendant's motion on the basis that the photographs constituted evidence of subsequent remedial measures and thus were not admissible under rule 407. The court stated:

THE COURT: ... This might be a different situation if the Defendant puts on the defense saying that, ... Ladies and Gentlemen of the jury, there's nothing we could have done to make those grates more safe than they already were and then after the accident they welded them, which is a fairly simple remedial measure, and if the Defendant takes that approach, then I think the Plaintiff, in rebuttal, could show that, well, there was a fairly simple thing that could have been done and that was done, these grates were welded, but absent those two examples, the Court can see this only as ... remedial measures, which are not admissible under rule 407.

During closing arguments, which were not reported, plaintiffs' attorney allegedly commented to the jury that defendant could and should have welded the grate to prevent it from tipping or slipping. In response to...

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