Featherstone v. Hy-Vee, Inc., No. 6-057/04-1710 (IA 4/26/2006)

• Decision Date: 26 April 2006
• Docket Number: No. 6-057/04-1710,6-057/04-1710
• Parties: LAURIE FEATHERSTONE and LAURIE FEATHERSTONE, as Mother, Guardian and Next Friend of CIERRA NICOLE FEATHERSTONE, a Minor, Plaintiff-Appellant, v. HY-VEE, INC., Defendant-Appellee.
• Court: Iowa Supreme Court

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LAURIE FEATHERSTONE and LAURIE FEATHERSTONE, as Mother, Guardian and Next Friend of CIERRA NICOLE FEATHERSTONE, a Minor, Plaintiff-Appellant, v. HY-VEE, INC., Defendant-Appellee.

No. 6-057/04-1710

Court of Appeals of Iowa.

Filed April 26, 2006

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

The plaintiff appeals from the district court's order granting partial summary judgment and the jury verdict on her negligence claim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

J. Russell Hixson of Hixson & Brown, P.C., Clive, for appellant.

Kenneth R. Munro of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.

Heard by Sackett, C.J., and Vogel and Mahan, JJ.

VOGEL, J.

Laurie Featherstone appeals the grant of partial summary judgment by the district court and subsequent verdict after a jury trial on her petition against HyV-ee, Inc. We affirm the grant of partial summary judgment as to the punitive damages claim, but reverse the jury's verdict as to damages and remand for a new trial due to the admission of improper and unfairly prejudicial evidence.

I. Background Facts and Proceedings.¹

At approximately 9:00 p.m. on October 5, 2000, Featherstone tripped and fell due to a hole in the parking lot paving of a Hy-Vee grocery store in Des Moines. The hole was approximately seven inches wide, twelve inches long and one and three-quarters inches deep. Featherstone suffered injuries to her knees and lower back, several contusions, and a broken tooth. She filed suit claiming Hy-Vee was negligent, causing her to incur damages for medical expenses, pain and suffering, emotional pain, loss of past and future wages, and loss of earning capacity. She also filed a loss of consortium claim on behalf of her daughter.²

After extensive and contentious discovery, Hy-Vee stipulated that it would admit negligence and proceed to trial solely on damages. The district court granted Hy-Vee's motion for partial summary judgment, dismissing Featherstone's claim for punitive damages. The district court also ruled in limine that evidence of Featherstone's abortion five months prior to the fall was relevant as an alternative cause of her emotional distress claim and not unduly prejudicial under Iowa Rule of Evidence 5.403. The parties proceeded to trial on damages which included expert testimony on both sides concerning the existence and extent of Featherstone's injuries and the consortium claim of Featherstone's daughter.

Although the parties agreed to a sealed verdict under Iowa Rule of Civil Procedure 1.931(3), the district court read the verdict with both trial counsel appearing by telephone before the jury was discharged. The jury awarded Featherstone $10,000 past medical expenses, $5500 past lost wages, and $5000 past physical and mental pain and suffering. The jury also awarded Featherstone's daughter loss of consortium damages, $5000 for past loss and $20,000 for future loss. Neither attorney objected to the verdict or otherwise indicated that there was a problem, and the district court confirmed that they were finished making a record so the jury could be discharged. Featherstone then filed a motion for new trial arguing the jury's verdict was inconsistent and failed to administer substantial justice between the parties, claiming it was not supported by substantial evidence. The district court, noting "the nature and extent of plaintiff's injuries and damages were hotly contested at trial," overruled the motion. Giving deference to the jury's findings, the court concluded the verdict was internally consistent, supported by evidence, and effected substantial justice between the parties. Featherstone appeals.

II. Punitive Damages on Partial Summary Judgment.

Featherstone first asserts that the district court erred by granting partial summary judgment dismissing her punitive damage claim. She based her claim for punitive damages on Hy-Vee's alleged prior knowledge of the parking lot hazard that she claimed rose to the level of willful and wanton disregard for her safety.³ Under Iowa Rule of Civil Procedure 1.981(3), summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. In ruling upon a motion for summary judgment, the court considers "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Iowa R. Civ. P. 1.981(3). "No fact question exists if the only dispute concerns the legal consequences flowing from undisputed facts." McNertney v. Kahler, ___ N.W.2d ___, (Iowa 2006) (citing Estate of Beck v. Engene, 557 N.W.2d 270, 271 (Iowa 1996)). We therefore examine the record before the district court in deciding whether the court correctly applied the law. McNertney, ___ N.W.2d at ___.

Punitive damages are appropriate when "[w]hether, by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another." Iowa Code § 668A.1(1)(a) (1999). Willful and wanton means:

[T]he actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Kuta v. Newberg, 600 N.W.2d 280, 288 (Iowa 1999) (citations omitted). Under the Restatement,

[t]he actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500, at 587 (1965). To receive punitive damages, the plaintiff must offer evidence of defendant's persistent course of conduct to show that the defendant acted with no care and with disregard to the consequences of those acts. Hockenberg Equip. Co. v. Hockenberg's Equip. & Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 156 (Iowa 1993) (citing Beeman v. Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247, 255 (Iowa 1993)).

Featherstone argues Hy-Vee had prior knowledge of the parking lot hazard, and its failure to fix the hole entitles her to the jury's consideration of punitive damages. We agree with the district court that there was an issue of whether Hy-Vee knew or should have known of this particular hole in the paving. However, Featherstone offered proof of only one other person falling at the same Hy-Vee store, some nine months before her accident. Hy-Vee's store director, Michael Kueny, estimated in his deposition that over 30,000 shoppers traverse the same parking lot each week, 9000 of which walk there after dark. According to section 668A.1 and our case law, one incident prior to the accident in question simply does not amount to a persistent course of conduct such that punitive damages would attach. See generally McCarthy v. J. P. Cullen & Son Corp., 199 N.W.2d 362, 369 (Iowa 1972). As the district court concluded, this only raised an issue of negligence, which was already admitted. We therefore conclude the district court did not err by granting summary judgment on the punitive damages claim. Cf. McClure v. Walgreen Co., 613 N.W.2d 225, 231 (Iowa 2000) (finding thirty-four incident reports in evidence occurring within a three-year period before the incident in question supported submission of a punitive damage claim to the jury); Lovick v. Wil-Rich, 588 N.W.2d 688, 699 (Iowa 1999) (holding that evidence Wil-Rich failed to institute a warning campaign for numerous years despite knowledge of numerous similar incidents involving its cultivator warranted submission of punitive damage claim); McCarthy, 199 N.W.2d at 369 (holding there was substantial evidence the defendant "knowingly and intentionally persisted in a course of conduct despite repeated protests and complaints of its harmful consequences, thereby disclosing such willful disregard for plaintiffs' rights as to create a jury issue relative to punitive damages."). We affirm on this issue.

III. Motion in Limine—Evidence of Prior Abortion.

Because Featherstone's petition contained a claim for "emotional pain" caused by the fall, Hy-Vee sought to introduce evidence of other causes of Featherstone's emotional wellbeing. Featherstone contends that the district court erroneously admitted evidence of her prior abortion over her objections to both relevance and undue prejudicial effect. We review evidentiary claims for an abuse of discretion. Jensen v. Sattler, 696 N.W.2d 582, 585 (Iowa 2005). An abuse of discretion occurs when the court's decision is based on a ground or reason that is clearly untenable or when the court's discretion is exercised to a clearly unreasonable degree. Wilson v. Vanden Berg, 687 N.W.2d 575, 581 (Iowa 2004).

Ordinarily, emotional distress damages must be proven by expert testimony—

It must be remembered that damages are not recovered because one has experienced a horrific event, no matter how wrenching. The recovery is not for the event itself, but for the impact the event is shown to have had in terms of the later emotional condition of the claimant.

Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999).

Evidence of the abortion came in through the deposition testimony of Featherstone's treating physician, Dr. Malea Jensen, D.O.:

Q. [D]octor, but May 9th, 2000, she came in to see you with regards to the pregnancy, didn't she? A. Yes.

Q. And did she tell you at that time that she was unwilling to bring another life into the world at this time due to her complications with her marriage as well as her...