Bauman v. City of Waverly

• Decision Date: 11 February 1969
• Docket Number: No. 53152,53152
• Citation: 164 N.W.2d 840
• Parties: Marie R. BAUMAN and Otto Bauman, Appellees, v. CITY OF WAVERLY, Appellant.
• Court: Iowa Supreme Court

Page 840

164 N.W.2d 840

Marie R. BAUMAN and Otto Bauman, Appellees, v. CITY OF WAVERLY, Appellant.

No. 53152.

Supreme Court of Iowa.

Feb. 11, 1969.

Larson & Carr, Charles City, for appellant.

Kildee, Keith, Gallagher, Lybbert & Martin, Waterloo, and William B. Mooney, Waverly, for appellees.

LeGRAND, Justice.

This suit arises under the provisions of chapter 376, Code of Iowa, which authorizes cities to establish and maintain public restrooms. Plaintiffs claim Marie R. Bauman suffered serious personal injuries because of the negligent manner in which this statutory permission was carried out. Her husband Otto Bauman joined as a plaintiff, asking compensation for loss of consortium. Since his claim raises no separate issues on this appeal, we refer to Mrs. Bauman as though she were the sole plaintiff.

The pertinent part of section 376.2, Code, is as follows:

'* * * They (public comfort stations) shall be furnished with suitable, adequate, and sanitary toilets and lavatories, and shall be at all times kept clean, sanitary, and properly heated during cold weather.'

Section 376.3 requires each city maintaining public comfort stations to establish a commission having complete supervision over them.

Except for the provision requiring the comfort stations to be kept clean and sanitary, the chapter prescribes no standards by which the commission is required to protect the safety of those using the facilities.

On June 10, 1966, plaintiff and her husband, who live in Charles City, went to Waverly to visit plaintiff's mother. While on this mission, plaintiff had occasion to use the public restroom maintained by defendant city under the statutes just referred to.

It was plaintiff's first visit to these premises. The testimony and pictures introduced as exhibits show the restroom fronts on a public sidewalk and carries a sign identifying it as such a refuge. In addition to the main door, which opens to the inside, there is a screen door which opens to the outside. In order to enter the restroom it is necessary to walk up two steps, each approximately nine inches in height. In leaving, of course, one is required to descend these same two steps. Plaintiff testified the screen door stuck as she attempted to enter the restroom. She had to pull hard, two or three times, before it opened. When leaving, she again had trouble with the door. She put her shoulder against it and pushed with considerable force. It suddenly 'flew open and I flew right out the door and down I went.' She further stated, 'I missed the step going out with that much force.'

Plaintiff sustained serious personal injuries requiring surgery and involving a long period of incapacitation. At the time of trial, plaintiff had not yet completely recovered. There is no dispute about the size of the verdict nor the elements of damage which went into it, and we make no further mention of it.

Defendant has appealed from judgment following an adverse jury verdict and assigns the following errors:

(1) That the trial court erred in not directing a verdict because defendant is relieved of liability under the doctrine of governmental immunity;

(2) That plaintiff is barred from recovery because she was guilty of negligence which was a proximate cause of her injuries:

(3) That there is no proof upon which the jury could find negligence on the part of defendant;

(4) That the trial court erred in various instructions to the jury as discussed later in this opinion.

I. We consider first assignments (2) and (3) together since they present related questions of negligence of defendant and that of plaintiff as raised by defendant's affirmative defense.

Defendant insists there was no evidence to submit to the jury concerning the negligence of the city. This argument is based principally on the contention plaintiff was a mere licensee to whom the defendant owed no duty except to refrain from wilfully injuring her and the further assertion the evidence fails to show the alleged defective condition of the screen door existed for sufficient time to constitute constructive notice to defendant.

Defendant's argument that plaintiff is a licensee only is based upon the law applicable to private business establishments whose facilities are used by persons solely for their own convenience. We do not accept that cmparison. When a municipality undertakes to establish accommodations for the unrestricted use of the public, its position is not the same as a merchant operating a business for profit. If anything, the city's duty is higher than that owed by a private person to an invitee. This matter was discussed in Lindstrom v. Mason City, 256 Iowa 83, 87, 126 N.W.2d 292, 294, where we said, 'The same limitations (exceptions to the liability of the owner of private property to one injured while on that property) do not apply to all persons injured on the property of another. * * * As the trial court correctly observed our court has not held that the limitations recognized in business invitee cases are available to a city.

'The nonavailability to a city has not been expressly stated but is clear from our precedents. Most of the cases involve questions of contributory negligence, but it is clear that the conditions under which liability exist are less favorable to a city than to an individual owner or operator.' This statement is referred to approvingly in Fetters v. City of Des Moines, 260 Iowa 490, 149 N.W.2d 815, 820.

As to defendant's second claim that there is no evidence from which the jury could find the city had notice, either actual or constructive, of the alleged defective condition of the door we again cite Fetters v. City of Des Moines, supra, and Hovden v. City of Decorah, Iowa, 155 N.W.2d 534, 536, and citations.

The record includes testimony that a former city custodian admitted the door had struck on provious occasions and he 'was going to tighten it up'; that children frequently swung back and forth on the door causing the end to sag; that the bottom hinge 'might be a little loose'; and that the rubber mat on the platform outside the door showed worn spots apparently made as the door was opened and closed.

Much of this evidence, it is true, was refuted by defendant's witnesses; but in considering whether the city's motion for directed verdict should have been sustained we view the evidence in the light most favorable to plaintiff. Rule 344(f), (2), Rules of Civil Procedure.

When we apply this standard and when we consider also the rule that the general condition of the screen door is a factor to be kept in mind when determining if the alleged defect had existed for a sufficient time to charge the city with constructive notice, we find there was sufficient evidence to submit the issue of defendant's negligence to the jury. Lorig v. City of Davenport, 99 Iowa 479, 482, 68 N.W. 717; Fetters v. City of Des Moines, and Hovden v. City of Decorah, both supra.

Nor can we agree plaintiff was negligent as a matter of law simply because she knew from her experience on entering the restroom that the door struck. Once in, she faced the practical necessity of getting out. Whether she was negligent in doing so was, under the circumstances, a question for jury determination. Rule 344(f), (10), R.C.P.

We hold the trial court was right in submitting both the question of defendant's negligence and that of plaintiff to the jury.

II. Defendant raised various objections to the instructions. We consider only Instruction 12 in detail.

This instruction was as follows:

'In order for the plaintiff, Marie R. Bauman, to recover in this case against the defendant, City of Waverly, the burden is upon her to establish by a greater weight or preponderance of the evidence all of the following propositions:

'1. That the defendant was negligent in one or more of the particulars alleged * * *

'2. That the defendant had actual knowledge of the condition of the entrance of which complaint is made, or that such condition had existed for so long a period that the defendant should in the exercise of ordinary care have ascertained such condition before the time of said accident.

'3. That the negligence of the defendant, in one or more of the particulars alleged, was a proximate cause of plaintiff's injuries.

'4. That the plaintiff suffered damages and the amount thereof.

'If the plaintiff has established all of said propositions numbered 1 to 4 by the greater weight or preponderance of the evidence, then your verdict should be for the plaintiff and against the defendant * * *.

'If the plaintiff has failed to establish one or more of said propositions numbered 1 to 4 by the greater weight or preponderance of the evidence, then the plaintiff cannot recover.' (Emphasis added.)

Objection was made to this instruction because it did not include a direction that plaintiff must be denied recovery if she herself was guilty of negligence which was a proximate cause of the accident. Defendant urges it permitted the jury, upon finding that the four propositions set out had been established, to return a verdict for plaintiff without considering the effect of plaintiff's own negligence on her right to recover.

Before the enactment in 1965 of section 619.17, a plaintiff in an action such as this had the burden of pleading and proving his freedom from contributory negligence. Instructions in negligence cases then included as one of the elements to be proven by plaintiff freedom from contributory negligence which had contributed 'in any manner or in any degree' to the injury.

Since the change brought about by section 619.17, plaintiff's negligence has become an affirmative defense to be plead and proved by a defendant who seeks to rely thereon. Furthermore the negligence which will bar recovery is no longer that which cntributes in any manner to the injury, but is only such negligence as is a proximate cause thereof.

Recognizing these differences, both procedural and substantive, the Committee on...