Coker v. Abell-Howe Co., ABELL-HOWE

• Decision Date: 23 September 1992
• Docket Number: No. 91-836,ABELL-HOWE,91-836
• Citation: 491 N.W.2d 143
• Parties: Bobby G. COKER and Jacqueline Anne Coker, Appellants, v.COMPANY and Ernest Moore, Appellees.
• Court: Iowa Supreme Court

Page 143

491 N.W.2d 143

Bobby G. COKER and Jacqueline Anne Coker, Appellants, v. ABELL-HOWE COMPANY and Ernest Moore, Appellees.

No. 91-836.

Supreme Court of Iowa.

Sept. 23, 1992.

Rehearing Denied Oct. 23, 1992.

William G. Nicholson of White & Johnson, P.C., Cedar Rapids, for appellants.

Matthew J. Petrzelka, James M. Peters and Gilda L. Boyer of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellees.

Considered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN and SNELL, JJ.

SNELL, Justice.

This appeal by plaintiffs is from an adverse jury verdict in a negligence action. Plaintiff Bobby G. Coker was injured when struck in the head by a steel bar being used by a coworker. The jury determined that Coker was sixty-five percent at fault while defendants Abell-Howe Company and Ernest Moore, the coworker, were thirty-five percent at fault.

Plaintiffs, Bobby G. Coker and Jacqueline A. Coker, appeal from the trial court's jury instructions and the taxation of some costs to them. The Cokers raise four issues in this appeal. First, the Cokers appeal separate instructions by the trial court that Coker may be assigned a percentage of fault under Iowa Code chapter 668 (1987) on the theories of contributory negligence, unreasonable assumption of the risk of injury, and unreasonable failure to avoid an injury. Cokers also appeal the trial court determination that there was sufficient evidence to allow a jury instruction and specification that Coker failed to keep a proper lookout for his own safety. Cokers argue these instructions unduly emphasized Coker's alleged fault and are therefore prejudicial error requiring reversal. The trial court taxed the Cokers with certain depositions and expert witness expenses. The Cokers appeal these expenses. We affirm in part, reverse in part, and remand for a new trial.

I. Background and Facts.

On December 14, 1987, Bobby Gene Coker was employed as a semi-truck driver. That day, Coker delivered a large steel component from Miami to the ADM construction site in Cedar Rapids, Iowa. Ernest Moore was a job superintendent employed by the Abell-Howe Company on the site. When Coker arrived, Moore assembled a crew of Abell-Howe employees to unload the component from the truck to a storage facility. Abell-Howe employees Ronald Brooker, Michael Hanks, Donald Neal, and crane operator Niles Gardemann began readying the crane to lift the component.

Moore directed Coker to park his truck for unloading at the storage area. As Coker stepped out of the truck, he saw Moore unfastening the chains that secured the load to the flatbed truck. These chains were held tight around the load with "chain binders." Chain binders are tensioning devices hooked onto the chain that has previously been fastened over a load. When the chain binder is closed, the ends of the binder are drawn together, placing the chain under greater tension. A "cheater bar," a steel pipe several feet long, is used to place additional leverage to tighten and release the chain binders.

Coker saw Moore using Coker's cheater bar to release the chain binders. Coker noticed that Moore was having some difficulty controlling the bar. Both Moore and Coker had used cheater bars in the past and were aware of the possible dangers. Coker testified that he approached Moore and warned him against using the cheater bar, telling Moore that, "if he were to get hit by that cheater bar, it could buy him a new lunch or more ways than one hurt him." Coker then turned his back to Moore to unhook a previously loosened chain. Moore continued to open chain binders with the cheater bar. As Moore applied the cheater bar to another binder, Moore lost control of the bar and it swung over his head and backward behind him. Coker was standing directly behind Moore and was struck in the head by the cheater bar. Moore testified that Coker made no warning and Moore had not seen Coker near him until after the blow. Coker was not wearing a helmet. Neal, the only witness to the accident, testified that he saw Coker facing the rear of the truck with his feet apart, as if walking directly behind Moore.

At trial Coker alleged that the Abell-Howe Company was negligent through the actions of its employee Moore. Abell-Howe and Moore denied negligence and affirmatively pleaded that Coker's negligence was the proximate cause of his injury. Over Coker's objections, the trial court instructed the jury on three separate theories of Coker's fault. In addition to an instruction regarding Coker's contributory negligence, Instruction No. 18 instructed the jury that Coker may be at fault if he "unreasonably failed to take action to avoid an injury," and Instruction No. 19 instructed that Coker may be at fault if he "unreasonably assumed a risk of harm from the conduct of another." Coker also objected to a separate instruction and specification that Coker failed to keep a "proper lookout," on the ground that the evidence presented at trial was insufficient to support the instruction and specification. On appeal, Coker argues that the giving of Instruction No. 18, Instruction No. 19, and the instruction and specification on proper lookout are prejudicial as placing undue emphasis on Coker's fault.

The jury found Coker to be sixty-five percent at fault for his injuries, and Abell-Howe and Moore to be thirty-five percent at fault. Pursuant to Iowa Code section 668.3, Coker was denied recovery. The trial court thereafter ruled on the taxation of costs against Coker. Regarding costs, Coker argues that the trial court erred in the taxation of expert witness fees in excess of $150 under Iowa Code section 622.72 (1991), deposition testimony expenses, and the costs of obtaining copies of transcripts of depositions taken and offered by Coker following a rejected offer to confess judgment.

II. Assumption of Risk.

At trial Abell-Howe claimed Coker was at fault in causing his injuries. In addition to alleging contributory negligence, Abell-Howe argued that Coker "assumed the risk" that he may be struck by the cheater bar that Moore was using. The trial court gave a separate jury instruction that defined assumption of risk and listed factual specifications upon which the jury might find Coker had assumed the risk of injury. Coker objected at trial, claiming that under our decision in Rosenau v. City of Estherville, 199 N.W.2d 125 (Iowa 1972), assumption of risk is no longer a defense when the defendant also claims that the plaintiff's contributory negligence was the cause of injury.

Abell-Howe contends that our legislature's adoption of Iowa Code chapter 668, entitled Liability in Tort--Comparative Fault, reinstates assumption of risk in negligence cases after Rosenau was decided. Abell-Howe argues that the inclusion of assumption of risk in section 668.1, which defines fault, revives assumption of risk as a separate defense. We disagree.

We have recognized two distinct meanings of the term "assumption of risk." In its primary meaning, assumption of risk is an expression for the proposition that the defendant was not negligent, either because the defendant owed no duty or did not breach a duty. When used in its secondary meaning, assumption of risk is an affirmative defense to an established breach of duty; the defendant contending that the plaintiff acted unreasonably in encountering a known risk. Rosenau, 199 N.W.2d at 131; Annotation, Assumption of Risk--Distinctions, 82 A.L.R.2d 1218, 1237-41 (1962). In this case, Abell-Howe invokes the secondary meaning, claiming that Coker acted unreasonably in approaching Moore while Moore used the cheater bar.

Before our decision in Rosenau, the affirmative defense of assumption of risk in negligence cases resulted in confusion and repetition in our tort law. When both contributory negligence and assumption of risk were pleaded, a jury could find that the plaintiff acted with the care of a reasonably prudent person under all of the circumstances, yet could deny recovery because the plaintiff "assumed the risk." Rosenau, 199 N.W.2d at 132. Additionally, the defense of contributory negligence and assumption of risk involve the same elements and facts, an overlapping that resulted in "duplicitous instructions on a single aspect of the case." Id. at 133.

For these reasons, we abolished assumption of risk in its secondary meaning as a separate defense in cases in which the defendant could also allege contributory negligence. Assumption of risk as a defense was maintained in those cases in which contributory negligence was not available, such as strict liability.

We adopted comparative negligence in Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982). We then examined whether assumption of risk would be revived as a defense under Goetzman comparative negligence. We held that it was not in Campbell v. Van Roekel, 347 N.W.2d 406, 410 (Iowa 1984) ("[w]e do not believe that 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.").

In 1984, the Iowa legislature adopted Iowa Code chapter 668, establishing a modified comparative fault system. The legislature used the term "fault" to encompass the available claims and defenses in negligence and strict liability actions. Section 668.1, fault defined, states:

1. As used in this chapter, "fault" means one or more acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages.

Abell-Howe contends that the passage of the Iowa Comparative Fault Act restores assumption of risk as a separate defense in negligence cases....