Foggia v. Des Moines Bowl-O-Mat, Inc.

• Decision Date: 14 February 1996
• Docket Number: BOWL-O-MA,No. 94-1741,INC,O-M,94-1741
• Citation: 543 N.W.2d 889
• Parties: Alfred FOGGIA, Appellant, v. DES MOINESa/k/a Bowl-at, Inc., and Fair Lanes Bowling, Inc., Appellees.
• Court: Iowa Supreme Court

Page 889

543 N.W.2d 889

Alfred FOGGIA, Appellant, v. DES MOINES BOWL-O-MAT, INC. a/k/a Bowl-O-Mat, Inc., and Fair Lanes Bowling, Inc., Appellees.

No. 94-1741.

Supreme Court of Iowa.

Feb. 14, 1996.

David S. Wiggins of Wiggins, Anderson & Conger, P.C., West Des Moines, for appellant.

John Werner and Mark A. Schultheis of Grefe & Sidney, P.L.C., Des Moines, for appellees.

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

SNELL, Justice.

Appellant, Alfred Foggia, appeals following a jury verdict in his favor and a denial of his motion for new trial. We affirm.

I. Factual and Procedural Background

Early in 1991 (the exact date is in dispute), Alfred Foggia, carrying two bowling balls, exited Fair Lanes Bowling in Des Moines, through a door clearly marked "emergency exit only," onto an untreated, snow and ice covered concrete slab. Once there, he slipped and fell. He sought no medical attention until March 26, 1991, on which date he complained to his chiropractor he was sore because he had just cut down 100 trees. The next day, he returned for another treatment, and this time he mentioned he had fallen on ice sometime earlier. During this time, he continued to manage the tavern he and his wife owned and never missed a day of work.

At trial, medical records and testimony were presented as to Foggia having numerous other injuries both prior and subsequent to the fall. One of his physicians said Foggia's present injuries were all either the result of preexisting injuries or other injuries subsequent to the fall.

The case was tried to a jury and following six hours of deliberation it returned a verdict in favor of the plaintiff. The jury apportioned fault of forty-nine percent to the plaintiff and fifty-one percent to the defendants and awarded the plaintiff $100 damages for past pain and suffering. The jury made no award for future pain and suffering, past medical expenses, or loss of past and future function. The plaintiff filed a motion for new trial which was denied. Plaintiff Foggia now appeals the district court's failure to grant a new trial on the basis the verdict was not supported by sufficient evidence and the damages awarded were inadequate. Further errors are asserted in the district court's formulation of jury instructions on proximate cause and burden of proof. We affirm on all issues.

II. Motion for New Trial

The plaintiff moved for new trial under Iowa Rule of Civil Procedure 244(d) and (f) on the grounds the jury verdict was not supported by substantial evidence and the damages awarded were inadequate. The trial court denied the motion, finding the verdict was entirely supported by the evidence introduced and was neither legally nor logically inconsistent. This court's standard of review of a trial court's action on a motion for new trial is for abuse of discretion. Matthess v. State Farm Mut. Auto Ins. Co., 521 N.W.2d 699, 702 (Iowa 1994); Witte v. Vogt, 443 N.W.2d 715, 716 (Iowa 1989).

We acknowledge an inadequate damage award merits a new trial as much as an excessive one. Iowa R.Civ.P. 244; Matthess, 521 N.W.2d at 702; Witte, 443 N.W.2d at 716. Whether damages awarded are adequate in a particular case depends on the facts of the situation. Matthess, 521 N.W.2d at 702. The test we must apply is "whether the verdict fairly and reasonably compensates the injury the party sustained." Id.; see also Householder v. Town of Clayton, 221 N.W.2d 488, 493 (Iowa 1974). Although evidence presented at trial may justify a higher damage award, this alone does not control. The key question is whether after examining the record, "giving the jury its right to accept or reject whatever portions of the conflicting evidence it chose, the verdict effects substantial justice between the parties." Kautman v. Mar-Mac Community Sch. Dist., 255 N.W.2d 146, 148 (Iowa 1977); see also Moore v. Bailey, 163 N.W.2d 435, 437 (Iowa 1968). Another consideration for this court in examining the trial court's determination is "the fact the trial court, with benefit of seeing and hearing witnesses, observing the jury and having before it all incidents of the trial, did not see fit to interfere [with the jury's verdict]." Olsen v. Drahos, 229 N.W.2d 741, 743 (Iowa 1975).

In this case, pain and suffering of the plaintiff and the resulting damages are clearly a matter to be determined by the jury. See Mazur v. Grantham, 255 Iowa 1292, 1301, 125 N.W.2d 807, 813 (Iowa 1964). The amount awarded, here $100, is within a reasonable range the jury may have determined the plaintiff suffered in experiencing the fall, especially if it found his slip at the bowling alley was not the cause of his other injuries.

The plaintiff further argues that the jury award of damages for pain and suffering excluding damages for future pain and suffering, past medical expenses, and loss of function is illogical and contrary to law. The plaintiff relies on two cases, Cowan v. Flannery, 461 N.W.2d 155 (Iowa 1990) and Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (Iowa 1963), for the proposition a verdict awarding special damages while denying medical damages is inadequate as a matter of law. Foggia's argument on this issue fails for two reasons. First of all, in Matthess, this court explained the status of this area of law in Iowa:

Recently, we reviewed extensively our cases involving questions of inadequate awards where the awards were approximately equal to or less than the special damages. We discovered we have not adopted an inflexible rule that every verdict awarding only special damages is inadequate as a matter of law.

Matthess, 521 N.W.2d at 702 (emphasis added; citations omitted). A survey of this case law shows we have affirmed a grant of new trial where evidence of damages was undisputed and the damage award was approximately equal to the special damages; we have reversed a denial of a new trial where evidence material to the damage award was undisputed and the award was equal to or less than the special damages; we have affirmed the denial of a new trial where evidence of the cause or extent of the injury was disputed; and we have reversed the granting of a new trial where evidence of the extent of the injuries was disputed. Id.; see also Cowan, 461 N.W.2d at 159; Witte, 443 N.W.2d at 715; Waddell v. Peet's Feeds, Inc., 266 N.W.2d 29 (Iowa 1978); Kautman, 255 N.W.2d at 146; Schmatt v. Arenz, 176 N.W.2d 771 (Iowa 1970).

Additionally, Foggia's reliance on Cowan and Shewry in support of his position is misplaced. Foggia is correct in that this court in both Cowan and Shewry granted the plaintiff a new trial on the basis of inadequacy of damages awarded. However, the damage issue in these cases is inverse to the inquiry in the present case. In both Shewry and Cowan, the juries awarded damages for past medical expenses related to the injury but denied recovery for past pain and suffering resulting from the injury. The court recognized the inconsistency in an award which acknowledged that the injury did in fact occur (by allowing medical expenses) yet in effect denied that any amount of pain and suffering took place. The court in both these cases held this inconsistency merited a new trial. The jury in our case has done exactly the opposite. The court in Cowan and Shewry opined that it was illogical for a jury to "award past and future medical expense incurred to relieve headache, neck and back pain and then allow nothing for such physical pain and suffering." Cowan, 461 N.W.2d at 160. Such a breach of logic does not exist in the instant case. Here the jury awarded Foggia damages for past pain and suffering, but nothing for past medical expenses. Based on the evidence and testimony presented at trial, it is plausible that the jury found none of his medical expenses were caused by the fall at issue. The jury in this case found that the plaintiff's claimed medical expenses, loss of function, and much of his pain and suffering were not the result of this fall. Because these are the precise types of findings within the province of the jury and they are supported by substantial evidence in the record, we will not disturb them by granting the plaintiff a new trial. See Kaiser v. Stathas, 263 N.W.2d 522, 526 (Iowa 1978).

III. Proximate Cause

The plaintiff next appeals on the basis of an instruction submitted to the jury explaining proximate cause. The instruction used was that embodied in I Iowa Civil Jury Instruction 700.3 (1995):

INSTRUCTION NO. 9: The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct.

"Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.

There can be more than one proximate cause of an injury or damage.

We review a trial court's formulation of jury instructions for errors of law. Iowa R.App.P. 4; State v. Kellogg, 542 N.W.2d 514 (Iowa 1996); State v. Breitbach, 488 N.W.2d 444, 449 (Iowa 1992). As long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction. Kellogg, 542 N.W.2d at 516; Adam v. T.I.P. Rural Elec. Coop., 271 N.W.2d 896, 901 (Iowa 1978). We will not grant a reversal on the basis of error in giving or refusing to give a particular jury instruction unless the action results in prejudice to the defendant. Rudolph v. Iowa Methodist Medical Ctr., 293 N.W.2d 550, 555 (Iowa 1980).

The plaintiff contended the following instruction should have been given:

When two or more separate conditions combine, so that, when viewed as a whole the conditions proximately caused plaintiff's injuries, the separate fault of each of those parties may be a proximate cause even though individually the separate conditions would not have alone produced the plaintiff's injuries if the conduct...