Krueger v. Noel, 66503

• Decision Date: 21 April 1982
• Docket Number: No. 66503,66503
• Citation: 318 N.W.2d 220
• Court: Iowa Supreme Court
• Parties: Otto W. KRUEGER, Appellant, v. Scott Allen NOEL and Fischer Investment Company, Appellees.

Page 220

318 N.W.2d 220

Otto W. KRUEGER, Appellant, v. Scott Allen NOEL and Fischer Investment Company, Appellees.

No. 66503.

Supreme Court of Iowa.

April 21, 1982.

William C. Fuerste and Douglas M. Henry of Fuerste, Carew, Coyle, Juergens & Sudmeier, Dubuque, for appellant.

Brendan T. Quann of O'Connor, Thomas, Hammer, Bertsch & Norby, Dubuque, for appellee Fischer Inv. Co.

Considered by REYNOLDSON, C. J., and UHLENHOPP, McCORMICK, ALLBEE, and McGIVERIN, JJ.

UHLENHOPP, Justice.

In this appeal we consider several jury instructions given in the trial of a personal injury action.

On July 15, 1977, Scott Allen Noel operated an Allis-Chalmers tractor southbound on Central Avenue in Dubuque, Iowa, in the course of his employment with defendant Fischer Investment Company (Fischer). The tractor tires contained a mixture of water and calcium chloride antifreeze, which was slippery in nature; the water in the tires improved traction and the antifreeze prevented freezing.

The left rear tractor tire burst, discharging the mixture onto the pavement at the intersection of Central Avenue and Tenth Street. Noel heard the tire explode and observed a trail of liquid being deposited upon the street. After the blowout he continued driving south on Central Avenue four blocks to Sixth Street, where he turned left and arrived at Fischer's garage.

Noel thought the liquid deposited on the roadway was water. He reported the incident to Fischer's foreman, Fred Timmerman, and then returned to his jobsite.

Timmerman knew that the tires were filled with water and antifreeze and that the mixture was slippery. No Fischer employee made any attempt to remove the substance from the pavement or to warn drivers using the street of the hazard.

Meanwhile plaintiff Otto Krueger drove his motorcycle to an auto supply store located at the intersection of Central Avenue and Ninth Street to purchase a part for his auto repair business. After leaving the store, Krueger mounted his motorcycle and entered the intersection of Central Avenue and Ninth Street with the intention of turning south on Central. Before he could complete the turn, however, the wheels of his motorcycle came into contact with the mixture deposited by Fischer's tractor, and the motorcycle overturned injuring Krueger's left forearm.

Krueger brought the present action for personal injuries against Noel and Fischer alleging that they were negligent in the following respects: (1) in depositing upon a highway a substance likely to injure a person or vehicle in violation of section 321.369, The Code 1979; (2) in failing to remove the substance immediately in violation of section 321.370, The Code; and (3) in failing to give warning of the existence and nature of such substance contrary to common law. At trial Krueger dropped Noel as a party and retained Fischer as the sole defendant.

At the close of evidence Krueger submitted requested jury instructions covering each specification of negligence. The district court, however, rejected the instructions and, over Krueger's objection, gave its own instructions to the jury. The jury found for Fischer. The trial court overruled Krueger's motion for a new trial which asserted that the court gave erroneous jury instructions.

On appeal Krueger contends that the trial court erred in its jury instructions in three respects: (1) by injecting the element of subjective knowledge into the allegation of negligence based on section 321.370; (2) by failing to instruct that violation of section 321.369 constitutes negligence; and (3) by failing to instruct that the knowledge of a corporate agent is attributable to the corporation itself.

I. Knowledge as an element of section 321.370. Krueger alleged that Fischer was negligent in failing to comply with section 321.370 of the Code, which provides:

Any person who drops, or permits to be dropped or thrown, upon any highway any destructive or injurious material and other material as defined in section 321.369 shall immediately remove the same or cause it to be removed.

(Emphasis added.) Section 321.369 provides:

No person shall throw or deposit upon any highway any glass bottle, glass, nails, tacks, wire, cans, trash, garbage, rubbish, litter, offal, or any other debris. No substance likely to injure any person, animal or vehicle upon such highway shall be thrown or deposited by any person upon any highway. Any person who violates any provision of this section or section 321.370 shall be guilty of a misdemeanor and upon arrest and conviction therefor shall be punished as provided in section 321.482 [simple misdemeanor].

(Emphasis added.)

With regard to the specification of negligence based on section 321.370, Krueger requested that the jury be instructed:

The law of Iowa provides that any person who drops upon a roadway a substance likely to injure a person or vehicle, shall immediately remove the same or cause it to be removed. The term "person" as used in this instruction, includes a natural person and a corporation acting through its employees.

Failure to comply with this provision of the law constitutes negligence.

The district court rejected that request and over Krueger's objection instructed the jury:

INSTRUCTION NO. 10

Under the law of Iowa any person who drops or permits to be dropped upon a street any substance likely to injure any person or vehicle on the street, shall immediately remove the same or cause it to be removed.

As used in this instruction, the word 'substance' as used in these instructions means any liquid or solid material which Fischer Investment Company, the Defendant, knew or in the exercise of reasonable care should have known, would create a hazard to others using the street if permitted to remain thereon.

Failure to comply with this provision of law constitutes negligence.

(Emphasis added.)

Krueger contends that subjective knowledge is not an element of section 321.370 and that the district court erred in instructing the statute was violated upon a showing that Fischer knew or should have known of the dangerous nature of the spilled substance.

We addressed a similar issue of whether knowledge was an element of section 321.261 of the Code in State v. Miller, 308 N.W.2d 4 (Iowa 1981). That section prohibits leaving the scene of a personal injury accident without taking certain procedures which include rendering aid. Miller was driving a pickup which struck and injured a pedestrian, and he failed to stop and assist the pedestrian. At trial Miller testified that due to the muddy condition of the truck he did not see the pedestrian, nor did he hear the collision or feel any contact. The trial court's instructions on the definition of the elements of the offense made no mention of knowledge. On the basis of those instructions the jury convicted Miller of violating the section.

On appeal we reversed and remanded for a new trial on the ground that the trial court had improperly instructed the jury. For purposes of analysis we divided the knowledge requirement into two parts: (1) knowledge of the accident, and (2) knowledge of the injury. We first held that the State must prove as an element of the offense that the defendant had actual knowledge of the accident itself. Id. at 7. One of our reasons for so holding was that the statute required an affirmative course of action to be taken by the driver, and he had to be aware of facts giving rise to the duty to trigger the obligation to perform it. We also held, however, that knowledge the accident caused injury or death was not required. That holding was premised on the view that " '[t]he driver who leaves the scene of the accident seldom possesses actual knowledge of injury; by leaving the scene he forecloses any opportunity to acquire such actual knowledge. Hence a requirement of actual knowledge of injury would realistically render the statute useless.' " Id. (quoting from People v. Holford, 63 Cal.2d 74, 80, 403 P.2d 423, 427, 45 Cal.Rptr. 167, 171 (1965)).

We believe the Miller rationale is applicable here and mandates that actual knowledge of the deposit of a substance as defined in section 321.369 is an element of section 321.370. That section like section 321.261 in Miller imposes an affirmative duty to take certain measures once a specified event has occurred. Until a person has actual knowledge that he or the vehicle which he is driving has deposited the substance upon the highway, he is unaware that a duty has arisen to remove it. We therefore hold that actual knowledge of the deposit of a substance upon the highway is an element of section 321.370. As we noted in Miller, the knowledge requirement does not mean that a court or jury must accept an accused person's denial of subjective knowledge. Knowledge is seldom capable of direct proof. If substantial evidence is introduced from which knowledge can be reasonably inferred, that issue is for jury determination. 308 N.W.2d at 7. See State v. Christopher, 176 N.W.2d 777, 778 (Iowa 1970).

The remaining question is whether Krueger had to prove that Noel knew or should have known the substance was likely to be injurious. The trial court included the knowledge-of-danger element in its instructions to the jury. Its reason for doing so was stated in its ruling denying a motion for a new trial:

Whether a substance is "likely" to injure any person, animal or vehicle upon the highway is a subjective determination and not to be resolved upon the outcome of the incident. It follows that the Legislature must have meant that the depositor knew or should have known that the substance was likely to cause injury as there is no way to achieve a categorical negative on such an inquiry.

(Emphasis added.)

On the other hand, Krueger contends the use of the term "likely" does not require that this element be evaluated from the subjective viewpoint of the person depositing the substance. He argues that the evaluation is totally objective in nature and should be made by...