Herbst v. State, No. 98-1985.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMcGIVERIN, Chief Justice.
Citation616 N.W.2d 582
PartiesNikki HERBST, Appellant, v. STATE of Iowa, Appellee.
Decision Date07 September 2000
Docket NumberNo. 98-1985.

616 N.W.2d 582

Nikki HERBST, Appellant,
v.
STATE of Iowa, Appellee

No. 98-1985.

Supreme Court of Iowa.

September 7, 2000.


616 N.W.2d 583
Martin A. Diaz of Martin Diaz Law Firm, Iowa City, for appellant

Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant Attorney General, for appellee.

Considered en banc.

McGIVERIN, Chief Justice.

In this slip and fall case, the narrow question we must consider is whether the district court properly instructed the jury concerning the specifications of negligence as alleged by plaintiff in her action against defendant, the State of Iowa, for personal injuries she sustained while descending from the stage in a University of Iowa music rehearsal hall. After the jury returned a verdict in favor of defendant and the district court entered judgment thereon, plaintiff moved for a new trial, asserting the district court erred in refusing to instruct the jury concerning certain specifications of negligence. The district court overruled plaintiff's motion. Our court of appeals affirmed. We granted plaintiff's application for further review.

Upon our review, we conclude that the district court erred when it instructed the jury concerning the specifications of negligence alleged by plaintiff. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for a new trial.

I. Background facts and proceedings.

After complying with the requirements of Iowa Code chapter 669 (1995) (filing claim with the State Appeal Board under Iowa Tort Claims Act), plaintiff Nikki Herbst filed a petition in district court against defendant, the State of Iowa. In her petition, Herbst alleged that she was injured on June 17, 1995 when she fell while descending from the stage in a music rehearsal hall on the campus of the University of Iowa and that the University's negligence in connection with access to the stage was the cause of her injuries.1 The case was tried to a jury.

Evidence presented during trial showed that the stage in the rehearsal hall is approximately thirty inches high. As is common with most stages, there are no steps directly in front of the stage. There is a set of permanent stairs located in the upper left-hand corner as a person would look at the stage. To get to those permanent stairs, one would have to walk down a hallway along the left side of the stage.

Herbst testified that she went to the University of Iowa Opera Rehearsal Hall at approximately 9:45 a.m. on Saturday June 17 to attend a band rehearsal for the Iowa City community band. Herbst had never been to the opera rehearsal hall before this date. Herbst explained that upon entering the rehearsal hall, she saw a set of black wooden steps leading up to the left-hand side of the stage and what looked like a bench on the right-hand side of the stage. Herbst walked to the left side of the stage, looking for a set of steps, but she only saw large canvas backdrops stacked on wooden casters. Some people were getting on and off the stage by using the black wooden steps or the bench, while others used neither the steps nor the bench. Herbst walked up the black steps to reach her seat on the stage.

After an hour or so of rehearsal, the band took a break. Band members again used various means by which to leave the stage. Herbst decided to leave the stage to use the restroom. Herbst saw other people leaving the stage at the center

616 N.W.2d 584
point of the stage, which was the most direct route to exit the stage. Instead of exiting the stage the same way she got up onto the stage, Herbst decided to exit the stage from its center point. As she walked to the front edge of the stage, Herbst looked down and saw what appeared to be two natural wood colored steps resting against the stage. Herbst believed the steps to be approximately seven inches high and approximately twenty-seven inches or one and a half to two feet wide. Other band members had used this means of exiting the stage without problems before Herbst attempted to do so. When Herbst stepped down onto the steps, however, the steps moved out from under her, and she fell to the concrete floor, striking her hip and arms. Herbst later learned that what she thought were steps were actually two wooden boxes that someone had stacked one on top of the other as a means of accessing/exiting the stage. After her fall, the boxes were moved away from the stage but remained in the area

After her fall, Herbst returned to rehearsal. The next day, Sunday, Herbst played with the band in its Sunday performance. Later that day, Herbst returned to the opera rehearsal hall, but could not find the bench or the wooden boxes she had seen the previous day. On Monday, two days after her fall, Herbst went to her family doctor concerning her injuries from the fall. Herbst reported the incident to the University the following Tuesday.

Robert Brady, the band manager of the Iowa City community band, was in charge of making arrangements for concerts and setting up for concerts and rehearsals. The band is not affiliated with the University, but often practices in the music buildings at the University. On the day of Herbst's fall, the University did not assist the band with setting up equipment in the opera rehearsal hall and did not inspect the room or otherwise supervise the use of the room.

Brady testified that in the past the band had access to a set of portable stairs for accessing/exiting the stage in the opera rehearsal hall, but that those stairs were not present on the day of rehearsal and he could not find them. When Brady arrived on the morning of the rehearsal, he saw boxes, one larger than the other, already at the center portion of the stage. Brady also testified that he knew a permanent set of stairs existed, but did not know exactly where they were located. Brady did not see Herbst fall from the stage but heard a loud crash.

In her later investigation, Martha Huelsbeck, a University music school official, could not locate boxes in the stage area matching Herbst's description. Huelsbeck stated that props are stored in the hallway leading to the permanent stairs and that props were located in that area at the time of Herbst's fall. Herbst apparently did not see the hallway leading to the permanent steps because of the props stored in that area.

Dwight Sump, the technical coordinator for the production unit at the University of Iowa, testified that there is a set...

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39 practice notes
  • State v. SR, No. 16-0061
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...discretionary, we review for an abuse of discretion. Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699, 707-08 (Iowa 2016); Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). When assessing a district court's decision for abuse of discretion, we only reverse if the district court's decision res......
  • Alcala v. Marriott Int'l, Inc., No. 14–1058.
    • United States
    • United States State Supreme Court of Iowa
    • June 10, 2016
    ...Warren, 522 N.W.2d 45, 47 (Iowa 1994) ; accord Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823–24 (Iowa 2000) ; Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). The verb “require” is mandatory and leaves no room for trial court discretion. Thus, we clarify today that absent the disc......
  • State v. SR, No. 16-0061
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...we review for an abuse of discretion. Alcala v. Marriott Int'l, Inc. , 880 N.W.2d 699, 707–08 (Iowa 2016) ; Herbst v. State , 616 N.W.2d 582, 585 (Iowa 2000). When assessing a district court's decision for abuse of discretion, we only reverse if the district court's decision rested on groun......
  • Mulhern v. Catholic Health Initiatives A/K/A Catholic Health Initiatives Iowa Corp.. D/B/A Mercy Franklin Ctr. And/Or Mercy Hosp. And/Or Mercy Psychiatric Serv., No. 08–1478.
    • United States
    • United States State Supreme Court of Iowa
    • June 24, 2011
    ...or refusing to give a particular instruction does not warrant reversal unless the error is prejudicial to the party.” Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000).IV. Comparative Fault. The primary issue is whether the district court committed reversible error in submitting Mercy's defe......
  • Request a trial to view additional results
39 cases
  • State v. SR, No. 16-0061
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...discretionary, we review for an abuse of discretion. Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699, 707-08 (Iowa 2016); Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). When assessing a district court's decision for abuse of discretion, we only reverse if the district court's decision res......
  • Alcala v. Marriott Int'l, Inc., No. 14–1058.
    • United States
    • United States State Supreme Court of Iowa
    • June 10, 2016
    ...Warren, 522 N.W.2d 45, 47 (Iowa 1994) ; accord Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823–24 (Iowa 2000) ; Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). The verb “require” is mandatory and leaves no room for trial court discretion. Thus, we clarify today that absent the disc......
  • State v. SR, No. 16-0061
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...we review for an abuse of discretion. Alcala v. Marriott Int'l, Inc. , 880 N.W.2d 699, 707–08 (Iowa 2016) ; Herbst v. State , 616 N.W.2d 582, 585 (Iowa 2000). When assessing a district court's decision for abuse of discretion, we only reverse if the district court's decision rested on groun......
  • Mulhern v. Catholic Health Initiatives A/K/A Catholic Health Initiatives Iowa Corp.. D/B/A Mercy Franklin Ctr. And/Or Mercy Hosp. And/Or Mercy Psychiatric Serv., No. 08–1478.
    • United States
    • United States State Supreme Court of Iowa
    • June 24, 2011
    ...or refusing to give a particular instruction does not warrant reversal unless the error is prejudicial to the party.” Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000).IV. Comparative Fault. The primary issue is whether the district court committed reversible error in submitting Mercy's defe......
  • Request a trial to view additional results

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