Gail v. Clark

• Decision Date: 22 July 1987
• Docket Number: No. 86,86
• Citation: 410 N.W.2d 662
• Parties: Rickie Dean GAIL, Janet Gail, Amanda Kay Gail, by her next friend, Rickie Dean Gail, and Neal Bryan Gail, by his next friend, Rickie Dean Gail, Appellees, v. Ronald Roland CLARK, a/k/a Ronald Roland Heslop, a/k/a Ronald Roland Helsop, and 7 Eleven Stores, Defendants, and Western Convenience Stores, Appellant. 493.
• Court: Iowa Supreme Court

Page 662

410 N.W.2d 662

Rickie Dean GAIL, Janet Gail, Amanda Kay Gail, by her next friend, Rickie Dean Gail, and Neal Bryan Gail, by his next friend, Rickie Dean Gail, Appellees, v. Ronald Roland CLARK, a/k/a Ronald Roland Heslop, a/k/a Ronald Roland Helsop, and 7 Eleven Stores, Defendants, and Western Convenience Stores, Appellant.

No. 86 493.

Supreme Court of Iowa.

July 22, 1987.

Rehearing Denied Aug. 18, 1987.

Raymond R. Stefani and Raymond R. Stefani II of Gray, Stefani & Mitvalsky, Cedar Rapids, for appellant.

Roxanne Barton Conlin and Dennis P. Ogden of James, Galligan and Conlin, P.C., Des Moines, for appellees.

Considered by REYNOLDSON, C.J., and HARRIS, LARSON, SCHULTZ, and LAVORATO, JJ.

LAVORATO, Justice.

In this personal injury action the district court entered judgment, based on a jury's verdict, against the defendant, Western Convenience Stores (Western). Western now appeals and raises a number of issues for our consideration. Western asserts the district court erred in overruling its various pretrial and in-course-of-trial motions predicated on the fireman's rule and the assumption of risk defense. Western also asserts the court erred in submitting loss of consortium claims, in failing to give a requested perjury instruction, in refusing to allow settlement evidence, and in overruling its objections to expert testimony. Finally, Western challenges the damages as excessive and unsupported by the evidence and argues the district court should have ordered a new trial or, in the alternative, a remittitur. We affirm the judgment of the district court.

The jury could have found the following facts. The chain of events leading to the tragic truck-auto collision giving rise to this lawsuit began between 10:00 and 10:30 p.m. on September 12, 1981. At that time Ronald Roland Clark drove his red Dodge "L'il Red Express" pickup to First Avenue in downtown Cedar Rapids. Clark had been drinking throughout the day. After arriving at First Avenue, his first destination was the Western Convenience Store located at First Street and First Avenue. There, in an intoxicated condition, Clark purchased a cold 12 pack of beer.

After purchasing the beer, Clark continued his drinking throughout the evening and into the early morning hours of September 13, while cruising up and down First Avenue. He was joined in his travels by a young man and various young women who corroborated his drinking and intoxicated condition. During the course of the evening, Clark also purchased beer at a 7 Eleven store located in the city.

In the early morning hours of September 13, Clark again purchased a 12 pack of beer from Western. He still was in an intoxicated condition when he made this purchase.

Shortly after this last purchase, Clark engaged a driver of a GTO in a drag race that started on Collins Road in the northeast part of the city. During the race, Clark, together with a male and two female companions, occupied the front seat of the pickup.

As the pickup and GTO raced down Collins Road, two on-duty Cedar Rapids police officers spotted them and immediately gave pursuit. Responding to the flashing red lights and siren of the pursuing police vehicle, the driver of the GTO stopped, but Clark chose to elude apprehension. The chase continued through a northeast residential area of Cedar Rapids at speeds in excess of eighty miles an hour.

The officers requested assistance. Other law enforcement personnel responded. One of those responding was a deputy sheriff, who was nearly struck by Clark's pickup.

Shortly before 4 a.m., Clark and the pursuing officers reached Daniels Street. While Clark raced southbound on Daniels Street, another Cedar Rapids police squad car was traveling east on H Avenue, moving slowly into the intersection with red lights flashing. A stop sign was located on the northwest corner of the intersection, controlling traffic traveling southbound on Daniels Street, the direction Clark was traveling. Officer Rickie Gail was at the wheel of this squad car. He and his partner were responding to the request for assistance in the high-speed chase. Unable to stop, Clark drove his pickup at a high speed into the driver's side of Officer Gail's squad car.

The force of the collision caused the pickup to leave the road and to careen through a yard and chain-link fence. The pickup came to rest embedded in the porch of a house to the south and east of the intersection. Officer Gail's squad car came to rest seventy feet south of the intersection at a right angle to his direction of travel. Officer Gail suffered severe, disabling injuries as a result of the collision.

Thereafter, Officer Gail and his wife, Janet Gail, brought this action against Clark, Western, and 7 Eleven Stores, alleging negligence and intentional misconduct against Clark and a dramshop violation against Western and 7 Eleven Stores. Officer Gail requested damages for his injuries, and his wife requested damages for lost consortium.

Western's answer generally denied the Gails' allegations, raised an affirmative defense of contributory negligence against Rickie Gail, and alleged Clark's actions were the sole proximate cause of the collision.

Clark's answer was a general denial of the petition's allegations. The defendant 7 Eleven Stores also filed an answer generally denying the allegations of the petition. It also raised contributory negligence and assumption of risk as defenses.

While the case was pending, we decided Pottebaum v. Hinds, 347 N.W.2d 642, 645, 647 (Iowa 1984), in which we adopted the fireman's rule ¹ and applied it to dramshop actions. Relying on Pottebaum, 7 Eleven Stores filed a summary judgment motion invoking the fireman's rule to the facts of this case. Western followed suit with its own motion for summary judgment predicated on the applicability of the fireman's rule.

The district court, the Honorable Ansel J. Chapman presiding, overruled both motions. The court ruled, as a matter of law, that the fireman's rule did not apply because Officer Gail's presence at the scene was due to the high-speed chase and not to the indirect dramshop violation.

Thereafter, the Gails amended their petition by adding their two minor children as parties and asserting on the children's behalf claims for loss of means of support and services of their father.

Prior to trial, Clark and the 7 Eleven Stores settled with the Gails. The case proceeded to trial against Western only.

The district court, the Honorable William R. Eads presiding, denied motions for directed verdict, Iowa R.Civ.P. 216, and the jury returned a verdict against Western. The court entered judgments as follows: $1,161,000 in favor of Rickie Gail, which amount included $5000 for each of the two minor children for loss of parental consortium, and $100,000 in favor of Janet Gail for loss of spousal consortium. The court then sustained Western's application for pro tanto credit, and set off against the $1,161,000 judgment the amount of the pretrial settlements from Clark and the 7 Eleven Stores totaling $311,570. Finally, the court denied motions for judgment notwithstanding the verdict, Iowa R.Civ.P. 243, for new trial, Iowa R.Civ.P. 244, and for remittitur, see Iowa R.Civ.P. 244, 250.

Additional facts will be discussed in connection with the issues to which they relate.

I. Fireman's Rule.

Shortly after our decision in Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa 1984), Western moved for summary judgment asserting that the fireman's rule applied to bar recovery by Rickie and Janet Gail. The district court overruled the motion, holding that the rule did not apply to the undisputed facts presented to the court.

During trial, Western moved to amend to conform to the proof, see Iowa R.Civ.P. 106, again asserting the fireman's rule as an affirmative defense. Relying on the summary judgment ruling, the court overruled the motion.

At the close of the plaintiffs' evidence and again at the close of all the evidence, Western moved for directed verdict, see Iowa R.Civ.P. 216, asserting that the fireman's rule, as a matter of law, applied to bar recovery by the plaintiffs. The court overruled both motions.

Western assigns these rulings as error. The question confronting us is whether the facts here are sufficiently different than those in Pottebaum to enable us to hold, as a matter of law, that our narrow formulation of the fireman's rule does not apply. We think they are.

In Pottebaum two police officers filed a dramshop action against a tavern operator, seeking damages for injuries they sustained when an intoxicated patron assaulted them while the officers were attempting to quell a disturbance in the defendant's tavern. In a motion for judgment on the pleadings, the defendant asserted the fireman's rule barred the officers from recovering for injuries sustained while acting in their official capacity. The district court denied the motions, ruling that Iowa had not adopted the rule nor applied it to a dramshop action. Pottebaum, 347 N.W.2d at 643. We reversed and adopted what we termed a limited rule:

Regardless of the rationale invoked to support the rule, courts almost universally recognize that neither a fireman nor a policeman can recover when their complaint is based on the same conduct that initially created the need for the officer's presence in his official capacity.

While we do not ascribe to all of the various policy reasons espoused in support of the fireman's rule, we believe adoption of a limited rule is sound.

Pottebaum, 347 N.W.2d at 645 (citations omitted). We went on to hold that the rule applies to a dramshop action when the violation of the dramshop statute is also the act that created the need for the officer's presence. Id. at 647.

We did not base the rule on the status of the injured party because to do so "would seem to unfairly limit the rule's application to the landowner/occupant context, thus denying liability for negligent acts of these individuals but...