Jones v. City of Des Moines, 83-967

• Decision Date: 19 September 1984
• Docket Number: No. 83-967,83-967
• Citation: 355 N.W.2d 49
• Parties: Steven JONES and Janet Jones, Appellees, v. CITY OF DES MOINES, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 49

355 N.W.2d 49

Steven JONES and Janet Jones, Appellees, v. CITY OF DES MOINES, Iowa, Appellant.

No. 83-967.

Supreme Court of Iowa.

Sept. 19, 1984.

J.M. Sullivan, Asst. City Atty., for appellant.

Alfredo G. Parrish and Stuart M. Pepper, Des Moines, for appellees.

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

HARRIS, Justice.

Defendant city appeals following an adverse jury verdict in this personal injury action which arose from an automobile-motorcycle collision. Plaintiff ¹ cross-appealed to challenge the trial court's apportionment of credit for prior settlements with other parties. We affirm on both appeals.

We take the facts in the light most consistent with the verdict. A Des Moines police officer received a radio communication that another officer was pursuing a Honda automobile north on 30th Street in Des Moines. The officer mistakenly understood the vehicle to be a motorcycle and turned south on 30th Street to join, or to be more precise, to meet the pursuit.

He soon observed plaintiff, northbound on 30th Street on a Honda motorcycle, and signaled him to stop. The officer intended to proceed south, turn around, and block northbound traffic with his patrol car and to warn approaching traffic by means of flashing lights. At this point, 30th Street slopes in such a way that plaintiff could not be observed by northbound drivers until they reached an intersection 310 feet to the south.

Before the officer could position his patrol car as intended, Jack Wayne Linge, speeding north on the same street in a Honda automobile, struck plaintiff and his motorcycle. Needless to say, Linge was the actual subject of the radio call. Linge was also sued, as was a tavern owner said to have caused Linge's intoxication. Linge settled the plaintiff's claim against him for $1,000. The tavern owner settled for $25,000.

The jury awarded plaintiff ² $60,000 in his claim against the city. Other facts will be related in connection with specific assignments.

I. The city's first assignment challenges the trial court's instruction on proximate cause. The trial court used Iowa State Bar Association uniform jury instruction 2.6:

By "proximate cause" is meant a moving [or] producing cause, and an act or omission is the proximate cause of a condition or injury sustained only when it appears that if it had not been for such act or omission the said condition would not have been brought about, or the said injury sustained.

The city objected to this instruction at trial and on appeal assigns its submission as error. It is complained that the instruction does not sufficiently explain a crucial ingredient of proximate cause. In a number of cases we have subscribed to the restatement view of the doctrine:

In order to be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. [T]his is necessary but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff's harm.

Restatement (Second) of Torts § 431, comment a (1964).

We subscribed to this view in Pedersen v. Kuhr, 201 N.W.2d 711, 713 (Iowa 1972). The substantial factor aspect of the definition has become firmly established by a number of cases. Iowa Electric Light and Power Co. v. General Electric Co., 352 N.W.2d 231, (Iowa 1984); Speed v. State, 240 N.W.2d 901, 905 (Iowa 1976); Schnebly v. Baker, 217 N.W.2d 708, 728 (Iowa 1974); Akerman v. James, 200 N.W.2d 818, 829 (Iowa 1972).

The question is whether the uniform instruction adequately explains the "substantial factor" part of the definition. The city thinks it does not, that it merely states the "but for" concept of proximate cause which was found insufficient in the cases just cited. Although we agree that the instruction could have been improved, we think its submission was not reversible error.

In the challenged instruction any explanation of "substantial factor" is limited to the words "moving or producing cause." Our inquiry thus narrows to whether these few words sufficiently informed the jury of the substantial factor aspect of the definition of proximate cause.

We discussed the meaning of "substantial factor" in another context in Montgomery Properties Corp. v. Economy Forms, Corp., 305 N.W.2d 470 (Iowa 1981). Quoting from the Restatement (Second) of Torts, § 632, comment c (1977), defining legal causation of pecuniary loss resulting from publication of an injurious falsehood, we said:

In order for the false statement to be a substantial factor in determining the conduct of an intending or potential purchaser or lessee, it is not necessary that the conduct should be determined exclusively or even predominantly by the publication of the statement. It is enough that the disparagement is a factor in determining his decision, even though he is influenced by other factors without which he would not decide to act as he does.

Montgomery Properties, 305 N.W.2d at 477; Cf. Federated Mutual Implement and Hardware v. Dunkelberger, 172 N.W.2d 137, 143-44 (Iowa 1969). In Speed

v. State, 240 N.W.2d at 905-07 we found proximate cause established through a series of related steps which moved from the established negligence to the resulting damages.

The dictionary definition of the word "cause" is "that which occasions or e ffects a result; the necessary antecedent of an effect; that which determines the condition or existence of a thing." Webster's New International Dictionary, 3d Ed. (1964) (emphasis added). The word "producing" is used as an adjective form of the verb "produce" which means "to cause to be or to happen; to originate, as an effect or result...." Id. The word "moving" is used as an adjective form of the verb "move", which means "to set in motion" or to "actuate." Id.

The instruction might well have included a sentence expanding on the substantial factor requirement. We nevertheless hold it was not so defective as to call for a reversal.

II. The city also challenges one of the trial court's damage instructions. In routine fashion the instructions detailed the various items of allowable damages and then gave the following separate instruction:

The damages, if any you find, for injuries to the person, pain and suffering and the disability in the past and pain and suffering in the future, cannot be measured by any exact or mathematical standard, but the amount must rest in the sound discretion of the jury. Such discretion must not be exercised arbitrarily or out of passion or sympathy or prejudice for or against the parties, but must be based upon a fair, intelligent, dispassionate and impartial consideration of the evidence.

This language is taken...