Carter v. Wiese Corp., 83-1624
|360 N.W.2d 122
|23 October 1984
|Thomas E. CARTER and Gloria Carter, Plaintiffs/Cross-Appellants, v. WIESE CORPORATION, Defendant-Appellant.
|Court of Appeals of Iowa
Mark J. Wiedenfeld of Grefe & Sidney, Des Moines, for defendant-appellant.
Terrence A. Hopkins of Hopkins & Huebner, P.C., Des Moines, for plaintiffs/cross-appellants.
Heard by OXBERGER, C.J., and SNELL and SACKETT, JJ.
Defendant, Wiese Corporation, appeals from an adverse jury verdict entered in a case involving the plaintiff, Thomas E. Carter. Plaintiffs have cross-appealed from portions of the same verdict. Plaintiffs, Thomas E. and Gloria Carter, brought this action seeking damages for personal injury and loss of consortium as a result of an incident which occurred at defendant Wiese Corporation's place of business. On September 12, 1983, pursuant to a jury trial, a verdict was returned in favor of the plaintiff, Thomas E. Carter, setting his total damages at $117,500.00 and finding him to be ten percent negligent in causing his own injuries. A verdict was returned in favor of the defendant on plaintiff-Gloria Carter's claim for loss of consortium. After the entry of judgment, Tom Carter moved to have the court set aside the portion of the judgment finding him guilty of ten percent comparative negligence and Gloria Carter moved for a new trial.
Defendant moved for a remittitur and for a new trial. All posttrial motions were denied by the trial court.
Plaintiff, Thomas E. Carter, is forty-five (45) years old. He is married, and his wife of thirty (30) years is the plaintiff, Gloria Carter. Mr. Carter held his first truck driving job at age eighteen and, although he has held various jobs since then, he has worked off and on as a truck driver for approximately a total of six (6) years. At the time of the accident in question, which occurred on or about May 25, 1979, Mr. Carter was working for Kinney Truck Lines. The plaintiff began working for Kinney Truck Lines in January of 1979, hauling grain and steel, as well as steel and manufactured parts to and from the defendant Wiese Corporation.
On the day the accident occurred, plaintiff drove his 42-foot flatbed truck into the Wiese Corporation plant to deliver a load of steel bars. These bars were of various lengths and diameters and came wrapped in bundles. Roger Neuhalfen, a Wiese employee, began to unload the bundles with a moveable overhead electric crane. As one bundle was being lifted off the trailer the steel bars shifted resulting in a sudden jar which activated a circuit breaker located on the crane. This safety feature results in a power cut-off to the crane when a load shift occurs. Wiese Corporation's maintenance foreman, Mike Flynn, was called to activate the reset button for the crane. In this regard, Flynn brought a ladder, placed it in the bed of the trailer leaned it against the crane, climbed up the ladder, pushed the reset button, and climbed back down the ladder. Plaintiff testified that he thought the crane was twelve (12) to fourteen (14) feet above the bed of the truck. He estimated that he was standing approximately fifteen (15) feet from the base of the ladder. He further testified that while Mike Flynn was resetting the circuit breaker, plaintiff was arranging some chains and binders from the trailer bed so he would be ready to leave as soon as the last bundles of steel were unloaded from the truck. Roger Neuhalfen tried the control button to make sure power had been restored to the crane. When this occurred the crane moved slightly, allowing the ladder to slide free and start to fall. Mike Flynn stated that he saw the ladder begin to fall, grabbed hold of it as it fell away from him, and yelled more than one warning to Tom Carter to get out of the way. The end of the ladder struck the plaintiff around the head, neck and shoulders. Both Flynn and the plaintiff testified that if the plaintiff had been watching when the hoist moved and the ladder began to fall the plaintiff would have had time and the available space to avoid the falling ladder.
At the time of his injury, the plaintiff owned a hard hat but was not wearing it. Plaintiff was aware that hard hats were required in plants such as this where overhead cranes were in use, and plaintiff began to wear his hard hat after this incident. Signs were posted on the doors of the Wiese plant indicating that use of hard hats was required, and the company had extra hard hats available for drivers coming to the plant. All of the Wiese employees at the site were wearing hard hats at the time of the accident.
After his injury, plaintiff went to his family physician, Dr. Clifford Clay, who released him to work on June 30, 1979. Plaintiff was off work for approximately five weeks with pain in the regions of the neck, shoulder and arm. Plaintiff returned to work at Kinney Truck Lines and drove continuously for about 18 months until he quit his job in mid-January of 1981. Plaintiff claimed he quit his job because of health problems, and his employer testified that he quit his job with Kinney because he was not happy with the work assignment given to him.
After quitting his job, plaintiff went to Dr. Robert Hayne, a Des Moines neurologist, for evaluation and testing. Dr. Hayne did a complete neurological examination which results he found to be normal. The doctor also performed a normal cervical myelogram. Plaintiff was told to attempt to return to work. On referral by Dr. Hayne, the plaintiff went to see Dr. John Kelley, a Des Moines orthopedic surgeon, in order to have an examination performed pursuant to complaints about pain in the plaintiff's shoulder. After some exploratory surgery on the shoulder, Dr. Kelley found the plaintiff to have five (5) percent permanent disability in his shoulder, but urged him to return to work.
In August of 1982, plaintiff visited with another doctor who consulted with Dr. Hayne. Dr. Hayne performed surgery to remove portions of a protruded intervertebral disc and fused the adjacent cervical vertebrae. According to Dr. Hayne, plaintiff has a ten (10) percent permanent impairment as a result of his cervical condition. Plaintiff was advised on February 1, 1983 that he could return to work, but that he was not to lift over 40 pounds.
At the time of trial, plaintiff was still suffering from pain in the neck and movement of the head caused headaches. Plaintiff testified that Dr. Hayne advised him that his headaches and neckaches would improve over time and would eventually go away. Plaintiff received a D.O.T. physical certification in the summer of 1983 from Dr. Clay. At the time of trial, defendant was working as a mechanic for truck refrigeration units and expected to continue in that field. He doesn't feel he will be able to return to work as an over-the-road truck driver.
Plaintiff, Thomas E. Carter, at the time of trial had received worker's compensation benefits. These benefits included weekly payments for disability pursuant to injuries he sustained as a result of the May 25, 1979 accident. Defendant's attorney sought to introduce evidence that the plaintiff was eligible for and in fact received worker's compensation medical benefits. In plaintiff's suit against the defendant, he has made claim of various medical expenses, including $2,323.00 charges from Dr. Clifford Clay. While taking Dr. Clay's deposition, the defendant was able to determine that Dr. Clay indicated that he made charges for treatments to Mr. Carter's neck and back, while rendering some gratuitous services to the plaintiff's children.
Q. Could you explain why you did not charge for treating Mr. Carter's children and you only charge him $10 for 30 to 45 minute thorough physical and you only charge him $10 for flu, but you charge him considerably more than that for each visit relating to his treatment for his neck and back? A. I suppose because I lead with my heart instead of my better judgment.
Q. And could it be because you knew that Mr. Carter had been injured on the job and you knew that his worker's compensation would be paying those bills but they would not be paying the bills for his children's ailments? A. That's right.
As the plaintiff has the burden to prove the amount of damages he sustained as a result of the crane accident, necessarily, the fairness and reasonableness of the amount of Dr. Clay's charges for medical treatment is an issue in this case. The defendant claims the fact that plaintiff was eligible for and received worker's compensation benefits is relevant to this case because, as he views it, the receipt of benefits was the determining factor when Dr. Clay set the amount of his charges. Relevant to defendant's claim is a statement by the Iowa Supreme Court:
The weight of authority is conclusive to the effect that a defendant owes to the injured compensation for injuries, the proximate cause of which was his own negligence, and that the payment by a third party cannot relieve him of this obligation; that regardless of the motive impelling their payment, whether from affection, philanthropy, or contract, that the injured is the beneficiary of the bounty, and not the defendant who caused the injury.
Rigby v. Eastman, 217 N.W.2d 604, 609 (Iowa 1974) (). Iowa has adopted the "collateral source rule" so that a tortfeasor's obligation to make restitution for the injury it caused is undiminished by any compensation received by the injured party from a collateral source. See Groesbeck v. Napier, 275 N.W.2d 388, 392 (Iowa 1979). In Rigby, supra, the supreme court stated the rule as it is found in 25 C.J.S. Damages § 99(3) (1966).
In the application of the collateral...
To continue readingRequest your trial
Stover v. Lakeland Square Owners Ass'n
...This was hardly a "blatant reference[ ] to coverage so as to inform the jury that defendant was insured." Carter v. Wiese Corp., 360 N.W.2d 122, 131 (Iowa App.1984). We therefore conclude that the court did not abuse its discretion in denying defendant's motions for mistrial and new V. Conc......
In re Tripp, 16-2141
...circumstances, such evidence may be disclosed to the jury to show the basis for the expert’s opinion. See Carter v. Wiese Corp. , 360 N.W.2d 122, 133 (Iowa Ct. App. 1984). In the context of an SVP litigation, determining which circumstances are appropriate is a delicate question. See, e.g. ......
In re Tripp
...circumstances, such evidence may be disclosed to the jury to show the basis for the expert's opinion. See Carter v. Wiese Corp., 360 N.W.2d 122, 133 (Iowa Ct. App. 1984). In the context of an SVP litigation, determining which circumstances are appropriate is a delicate question. See, e.g., ......
AMCO Ins. Co. v. Stammer
...the pleadings and substantial evidence. Hoekstra v. Farm Bureau Mut. Ins. Co., 382 N.W.2d 100, 107 (Iowa 1986); Carter v. Wiese Corp., 360 N.W.2d 122, 132 (Iowa App.1984). A court may not unduly emphasize, by repetition or otherwise, issues, theories, defenses, particular evidence, specific......