Campbell v. Van Roekel, 83-572

• Court: United States State Supreme Court of Iowa
• Writing for the Court: McGIVERIN; All Justices concur except UHLENHOPP, J., and SCHULTZ, J., who dissent in separate opinions, and WOLLE; SCHULTZ; WOLLE; UHLENHOPP; WOLLE
• Citation: 347 N.W.2d 406
• Parties: Douglas Alan CAMPBELL, Appellee, v. Tammy Sue VAN ROEKEL and Carla Marie Hundley, Appellants.
• Docket Number: No. 83-572,83-572
• Decision Date: 11 April 1984

Page 406

347 N.W.2d 406 Douglas Alan CAMPBELL, Appellee,
v.
Tammy Sue VAN ROEKEL and Carla Marie Hundley, Appellants. No. 83-572. Supreme Court of Iowa. April 11, 1984.

Page 407

Paul E. Horvath of Davis, Grace, Harvey, Horvath, Gonnerman & Rouwenhorst, Des Moines, for appellant Van Roekel.

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Brad McCall and Mark A. Otto of Brierly, McCall, Girdner & Chalupa, Newton, for appellant Hundley.

John L. Timmons and Mark Lagomarcino of Pasley, Singer, Pasley, Holm, Timmons & Mathison, Ames, for appellee.

Considered en banc.

McGIVERIN, Justice.

This case involves several issues that arose during the trial of a personal injury action by a motor vehicle passenger against the driver and owner resulting from a one-vehicle accident. We affirm on defendants' appeal and dismiss plaintiff's cross-appeal.

On June 30, 1981, plaintiff Douglas Alan Campbell was a passenger in a car owned by defendant Carla Marie Hundley and driven by defendant Tammy Sue Van Roekel, age 17, when it struck a utility pole in Clive causing injury to his nose.

Plaintiff brought an action against both defendants for his personal injuries. Van Roekel admitted she was intoxicated at the time and that her negligence in the operation of the car was the proximate cause of the accident. Plaintiff sought recovery for compensatory or actual damages on a negligence theory against both defendants. He also asked for punitive damages against Van Roekel. Defendants alleged that plaintiff was negligent in a manner that was a proximate cause of his injury and damages.

The portion of the case asking for compensatory damages and involving the parties' alleged negligence was submitted to the jury on a comparative negligence basis. See Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982). In answering questions in a special verdict, the jury found the plaintiff sustained actual damages from the accident of $20,000, and that negligence of both plaintiff and defendants were proximate causes of plaintiff's injury and damage with five percent of the combined negligence attributable to plaintiff and ninety-five percent attributable to defendants.

In response to other instructions and a separate question, the jury awarded punitive damages of $2,000 to plaintiff against Van Roekel.

The trial court entered judgment in favor of plaintiff against both defendants for compensatory damages of $19,000, after reducing the $20,000 jury verdict for actual damages by five percent. Judgment against Hundley was based solely on her statutory liability under Iowa Code section 321.493 (1983) as owner of the car. Judgment was also entered for plaintiff against Van Roekel for the full amount of the punitive damage award of $2,000.

Defendants appeal, contending the trial court erred in:

1) not properly instructing the jury concerning negligence on the part of plaintiff;

2) not allowing evidence as to plaintiff's scholastic standing and post-accident driving record;

3) allowing cross-examination of Van Roekel concerning payment of her medical insurance by her parents, and Hundley's awareness of Van Roekel's previous drinking and driving activities; and

4) submitting the issue of permanence of plaintiff's injuries to the jury.

On cross-appeal, plaintiff asserts the court should have also submitted to the jury, as an additional basis of liability, an issue of negligent entrustment of the car by the owner, Hundley, to the driver, Van Roekel. At the close of the evidence the court directed a verdict in defendant Hundley's favor on the issue of negligent entrustment.

I. Instruction on passenger's negligence. Defendants alleged and asserted that negligence on the part of plaintiff was a proximate cause of his injuries. The claimed negligence was that plaintiff placed himself in a position of jeopardy by riding with the intoxicated driver, Van Roekel, and thereby assumed the risk of injury to himself.

Accordingly, the trial court in instruction 5 told the jury that it could find plaintiff negligent if it found that he assumed the

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risk of riding with the intoxicated driver, and that the amount of his recovery shall be reduced by the percentage that his negligence bears to the total negligence that caused the damages. The court instructed, inter alia, that defendants must prove the "plaintiff was aware of the intoxication [of Van Roekel] and of the danger to himself from it."

In response to questions in the special verdict, the jury found plaintiff negligent under this instruction and that such negligence was a proximate cause of his injury. The jury further found that plaintiff's negligence was five percent of the combined negligence of plaintiff and defendants that caused plaintiff's injury or damage.

Defendants contend the court erred in connection with instruction 5. We do not approve of the instruction but we find that no reversible error occurred.

A. Defendants first contend the court should have given an instruction as requested by defendants concerning plaintiff's negligence based on the duty of a vehicle passenger which utilized an objective, reasonable person standard. The requested instruction in part would allow a finding that plaintiff was negligent in entering and remaining in the vehicle "when he knew or in the exercise of reasonable care should have known that defendant Van Roekel's ability to drive was impaired."

Therefore, defendants asked for a "reasonable person," or objective standard, to apply on whether plaintiff knew or in the exercise of reasonable care should have known that Van Roekel's ability to drive was impaired and yet he entered and remained in the vehicle.

The court's instruction 5 placed a burden on defendants to prove that plaintiff knew that Van Roekel was intoxicated while driving and that he was aware of the danger to himself from it. Even under this subjective standard, the jury found plaintiff negligent. Therefore, defendants were not harmed by the instruction given.

We, however, do not approve of the instruction given by the court which attempted in the intoxicated defendant driver-plaintiff passenger situation to combine an assumption of risk defense with negligence on the part of plaintiff. We believe that was unnecessary for the following reasons.

Previously in this state, Iowa Code section 321.494 (1979), the guest statute, provided that a motor vehicle guest passenger could not recover against the driver unless the passenger's damage was caused as a result of the driver being intoxicated or reckless while operating the vehicle. In an action by the passenger, assumption of risk by the passenger of the driver's intoxicated condition in the operation of the vehicle was a complete defense.

Then in Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980), we struck section 321.494 by declaring it unconstitutional as violative of the equal protection clause of the Iowa constitution.

Thereafter, a passenger could bring an action for his injuries resulting from the driver's negligence and the driver could allege and attempt to show the passenger was contributorily negligent. Such is the situation now. We stated in Rosenau v. City of Estherville, 199 N.W.2d 125, 133 (Iowa 1972), that assumption of risk in its secondary meaning was abolished as a separate defense in all cases in which contributory negligence was available as a defense. The term and defense of "assumption of risk" is no longer appropriate in the passenger-driver situation. The driver can, however, allege and show the passenger is negligent under an objective "reasonable person" standard in a manner that was a proximate cause of the passenger's damage.

The next stage occurred when we adopted comparative negligence in Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982). When contributory negligence is urged as a defense, that case requires a recovery for the plaintiff to be reduced by the percentage of the plaintiff's own negligence that proximately caused the plaintiff's damage.

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We do not believe the change in the contributory negligence defense in Goetzman should affect the holding in Rosenau eliminating assumption of risk in its secondary meaning in negligence cases. We do not decide in this case whether assumption of risk should continue to be a complete defense in other situations.

This case was tried after Goetzman. The court should have instructed the jury in terms of negligence on the part of plaintiff under the usual reasonable person or objective standard without reference to assumption of risk terminology or strictly subjective standards. However, as noted previously, defendants suffered no harm from the improper instruction because the jury found plaintiff five percent negligent notwithstanding the use of a subjective standard in the instruction.

B. Defendants next contend the court erred in instructing the jury on "gross negligence," "recklessness," and "wantonness" because such terms are not consistent with a pure theory of comparative negligence. Defendants' argument, however, fails to mention that such instruction was addressed to the issue of punitive damages only and not to the underlying claim of negligence and actual damages. We note that the use of such terms in the court's instruction was proper and necessary for a claim for punitive damages. See Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841 (1954). We have indicated that the operation of a motor vehicle by a drunken person on a public highway in violation of a statute intended to protect others is itself equivalent to gross and culpable negligence. See id. at 106, 66 N.W.2d at 848; see also Nichols v. Hocke, 297 N.W.2d 205, 205 (Iowa 1980) ("Under Iowa law exemplary damages may be recovered against one who causes injury by operating a motor vehicle while intoxicated.")

C. Defendants further contend that assumption of risk is a complete defense to a claim for punitive damages. Defendants' argument is misplaced, however, for two reasons. First, there is no legal basis under our...