Boham v. City of Sioux City, Iowa, 96-107

• Decision Date: 23 July 1997
• Docket Number: No. 96-107,96-107
• Citation: 567 N.W.2d 431
• Parties: Patricia BOHAM, As Administrator of the Estate of Heidi Thompson, Deceased, and Larry and Patricia Boham, Individually, Appellees, v. CITY OF SIOUX CITY, IOWA, Municipality, Defendant, and Sioux City Community School District and Barbara Marmo, Appellants. SIOUX CITY COMMUNITY SCHOOL DISTRICT and Barbara Marmo, Third-Party Plaintiffs, v. Ralph Raymond CONYERS and Lesley Lowery, Third-Party Defendants.
• Court: Iowa Supreme Court

Page 431

567 N.W.2d 431

Patricia BOHAM, As Administrator of the Estate of Heidi Thompson, Deceased, and Larry and Patricia Boham, Individually, Appellees, v. CITY OF SIOUX CITY, IOWA, Municipality, Defendant and Sioux City Community School District and Barbara Marmo, Appellants SIOUX CITY COMMUNITY SCHOOL DISTRICT and Barbara Marmo, Third-Party Plaintiffs, v. Ralph Raymond CONYERS and Lesley Lowery, Third-Party Defendants.

No. 96-107.

Supreme Court of Iowa.

July 23, 1997.

Michael R. Hellige of Shull, Cosgrove, Hellige & Lundberg, Sioux City, for appellants.

Stanley E. Munger and Jay E. Denne of Munger & Reinschmidt, Sioux City, for appellees.

Considered by McGIVERIN, C.J., and LARSON, CARTER, SNELL, and TERNUS, JJ.

TERNUS, Justice.

Eight-year-old Heidi Thompson was struck by a pickup truck after she was allowed to enter a crosswalk by appellant Barbara Marmo, a crossing guard employed by appellant Sioux City Community School District. The school district and Marmo ("defendants") appeal from a jury verdict awarding damages to Thompson's estate and her parents, appellees Larry and Patricia Boham. The defendants claim there was insufficient evidence to support findings of negligence and proximate cause. They also contest the jury's award of damages for Thompson's predeath mental anguish and loss of function of mind and body because Thompson was unconscious upon impact until the time of her death. Upon our consideration of the parties' arguments and our review of the record, we conclude (1) there is substantial evidence to support the jury's findings of negligence and proximate cause, and (2) error was not preserved on defendants' challenge to the damage award. Accordingly, we affirm the trial court's judgment.

I. Background Facts and Proceedings.

We view the facts in the light most favorable to the jury's verdict. Morgan v. American Family Mut. Ins. Co., 534 N.W.2d 92, 96 (Iowa 1995). From this perspective, the following facts were shown by substantial evidence. See Iowa R.App. P. 14(f)(1) ("Findings of fact in a law action ... are binding upon the appellate court if supported by substantial evidence.").

On January 2, 1992, Heidi Thompson was a second-grade student at Everett Elementary School on West Third Street in Sioux City, Iowa. Barbara Marmo was employed by the school district as a crossing guard for the intersection of West Third Street and Hamilton Boulevard, a busy intersection near Everett Elementary.

Thompson attended school on January 2, and on her way home that afternoon, took West Third Street to Hamilton Boulevard. Marmo was present at the intersection when Thompson and another young girl arrived there. The children waited for permission to cross. Marmo pushed the button controlling the pedestrian signal and the "WALK" light came on. Marmo told the girls they could cross the street, and Thompson began running across Hamilton Boulevard, in the crosswalk, looking straight ahead.

Marmo was focused on the children and did not see a pickup, driven by Ralph Conyers, approaching the intersection on Hamilton. Conyers was in the right-hand lane traveling south on Hamilton when he noticed the stoplight at the intersection of West Third and Hamilton was red. Conyers applied the brakes on his vehicle, but there was no response. (The numerous defects in this vehicle, aptly described as a "road hazard," are detailed in our opinion affirming Conyers' conviction of homicide by vehicle. See State v. Conyers, 506 N.W.2d 442, 443 (Iowa 1993).) Conyers apparently saw the children enter the street and he swerved to the left to avoid them.

Meanwhile, Marmo finally noticed Conyers' pickup when it was in the intersection. (Marmo had no explanation for why she did not see him sooner.) She yelled Thompson's name to warn her. Thompson stopped, turned around to face Marmo, and was struck by the pickup. She was immediately rendered unconscious and remained so until she was pronounced dead a half-hour later. (The child crossing the street at the same time as Thompson was not hit by Conyers' vehicle as she was still in the outer lane for southbound traffic when Conyers entered the intersection.)

This action was filed by Thompson's estate and her parents, seeking damages on account of Thompson's wrongful death from the school district, Marmo and the City of Sioux City. The school district and Marmo filed a third-party petition against Conyers and the owner of the pickup he was driving, Leslie Lowery. A default judgment was entered against Conyers and the balance of the case proceeded to trial before a jury.

The jury returned a verdict finding the city, the school district, Marmo and Conyers at fault; it concluded, however, that any fault of the city was not a proximate cause of the accident. Liability as to the remaining parties was assessed 20% against the school district and Marmo and 80% against Conyers and Lowery. The jury awarded damages to both parents and to the estate. The damages awarded to the estate included amounts for mental anguish before death and for loss of function of mind and body before death. The trial court entered judgment in accordance with the jury's verdict.

The school district and Marmo filed a motion for judgment notwithstanding the verdict. They claimed there was insufficient evidence to support a finding of negligence because Marmo was entitled to assume Conyers would obey the law and when she reasonably knew he would not, there was inadequate time for Marmo to prevent the accident. They also argued there was insufficient evidence to support a finding that the specific acts of negligence claimed by the plaintiffs were proximate causes of the accident. The trial court overruled the motion and the defendants appealed.

II. Sufficiency of Evidence to Support Findings of Negligence and Proximate Cause.

A. Standard of review. The defendants claim the trial court should have granted their motion for directed verdict made at the close of the plaintiffs' case and renewed upon completion of the evidence. We review a trial court's denial of a motion for directed verdict for correction of errors of law. Podraza v. City of Carter Lake, 524 N.W.2d 198, 202 (Iowa 1994). When a party challenges the sufficiency of the evidence to support the jury's factual findings, we examine the record to determine whether substantial evidence exists to support the challenged findings. Morgan, 534 N.W.2d at 96. In assessing the evidence, we view the record in the light most favorable to the plaintiffs, taking into consideration all reasonable inferences that may fairly be made. Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). Accordingly, where a defendant's challenge is to the sufficiency of the evidence, we will affirm the trial court's denial of the defendant's motion for directed verdict if the plaintiff's claims are supported by substantial evidence. Poulsen v. Russell, 300 N.W.2d 289, 296 (Iowa 1981).

Questions of negligence and proximate cause are ordinarily for the jury. Iowa R.App. P. 14(f)(10). Only in extraordinary cases may these factual issues be decided as a matter of law. Id.

B. Right to assume motorist will obey the law. The defendants first rely on the general contention that Marmo had the right to assume Conyers would obey the traffic laws. They cite the principle embodied in Iowa Rule of Appellate Procedure 14(f)(9):

A motorist upon a public highway has a right to assume that others using the road will obey the law, including statutes, rules of the road and necessity for due care, at least until the motorist knows or in the exercise of due care should have known otherwise.

This rule has been extended to pedestrians, Tobin v. Van Orsdol, 241 Iowa 1331, 1335, 45 N.W.2d 239, 242 (1950), but we have never considered its applicability to crossing guards. Nevertheless, the trial court instructed the jury without objection from the plaintiffs that

Ralph Conyers, Heidi Thompson and Barbara Marmo had a right to use the street and could assume that all persons using the street would obey the law until they knew, or in the exercise of reasonable care, should have known the user of the street was not going to obey the law.

(Emphasis added.) Consequently, this principle became the law of the case. See Poulsen, 300 N.W.2d at 294 ("Unless objected to by a party, an instruction to the jury, right or wrong, is the law of the case.").

The defendants argue Marmo had a right to assume Conyers would stop and by the time she realized he would not stop, it was too late for Marmo to prevent the accident. This argument ignores the qualification on the rule: one may rightfully assume a motorist will obey the law only until reasonable care should alert one to the contrary. Consequently, the critical issue in this case was the standard of reasonable care for Marmo, a school crossing guard.

We think the evidence supported a finding Marmo, as a crossing guard, did not have "the absolute right" to assume Conyers would obey the law, as argued by the defendants. The plaintiffs introduced substantial evidence that the essence of a crossing guard's duty is to anticipate the possibility that motorists will not obey the rules of the road. Therefore, the jury could have found Marmo had a higher standard of care than the typical motorist or pedestrian in determining whether an approaching motorist will stop as required by the traffic laws. Consequently, Marmo's right to assume Conyers would obey the law was tempered by her duty to Heidi Thompson to use reasonable care in ascertaining whether Conyers would stop. And that duty is measured by the standard of care applicable to a crossing guard as shown by the credible evidence. We turn now to that evidence.

The plaintiffs introduced the testimony of an expert witness, Dan Burden, who manages the school crossing guard program in Florida; this program trains all school crossing guards within the state. Burden testified that a crossing guard should not permit...