Kuta v. Newberg, 97-1605.

• Decision Date: 09 September 1999
• Docket Number: No. 97-1605.,97-1605.
• Citation: 600 N.W.2d 280
• Parties: Richard KUTA and Judith Kuta, Administrators of the Estate of Bradley R. Kuta, Deceased, Appellants, v. Virgil Alexus NEWBERG, Sr., Appellee.
• Court: Iowa Supreme Court

600 N.W.2d 280

Richard KUTA and Judith Kuta, Administrators of the Estate of Bradley R. Kuta, Deceased, Appellants, v. Virgil Alexus NEWBERG, Sr., Appellee.

No. 97-1605.

Supreme Court of Iowa.

September 9, 1999.

E.S. Bikakis of Bikakis, Arneson & Karpuk, Sioux City, for appellants.

Maurice B. Nieland and Matthew T.E. Early of Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs & Mohrhauser, Sioux City, for appellee.

Considered by McGIVERIN, C.J., and LARSON, NEUMAN, SNELL, and CADY, JJ.

LARSON, Justice.

Richard and Judith Kuta sued Virgil Newberg for the wrongful death of their adult son, Brad. A jury returned a verdict for the plaintiffs. On the defendant's motion, the court ordered a new trial or a remittitur of the damages. Kutas appealed, and Newberg cross-appealed. We affirm on both appeals.

I. Facts and Judicial Proceedings.

Brad Kuta was by all accounts a successful and dedicated student, an athlete, and a young man with great potential. He was twenty years old and had completed his second year in civil engineering at the University of Iowa with excellent grades at the time of his death. He was working for a survey crew with the Iowa Department of Transportation (DOT) in the summer of 1995. The survey crew was working on two northbound lanes of Highway 75 near Merrill, Iowa. Brad was standing on the centerline between the two northbound lanes with his back to oncoming traffic when he was struck. There was conflicting evidence about what safety signals the survey crew used. Witnesses testified the DOT crew placed two warning signs, one on each shoulder of the northbound lanes of Highway 75, 500 to 900 feet from the mile marker where the crew was working. It is undisputed that the crew did not use flaggers or set up cones to channel traffic to one lane. DOT witnesses testified they parked a truck with a flashing yellow beacon on the west shoulder of the northbound lanes. Newberg was traveling forty-five to fifty miles per hour and was 100 feet behind a van when he struck Brad. Brad sustained severe injuries but remained conscious for a short time. A helicopter took him to Marian Health Center in Sioux City, but doctors were unable to save him due to the extensive loss of blood. He died within an hour after Newberg's vehicle hit him.

The Kutas sued for wrongful death, parental consortium, and punitive damages. Newberg asserted comparative fault and sole proximate cause as defenses. The district court sustained Newberg's motion for partial summary judgment on the consortium claim and directed a verdict for Newberg on the Kutas' punitive-damage claim. The jury found Newberg eighty percent at fault and Brad twenty percent. It set damages at $1,250,000, which, reduced by the twenty percent fault attributed to Brad, resulted in a net verdict of $1,000,000.

The court ordered a new trial or reduction to $486,400 damages for wrongful death. (It did not modify the awards for medical and funeral expenses, and those items are not involved on the appeal.)

II. The Issues.

The plaintiffs assert error in: (1) the remittitur order, (2) the submission of sole proximate cause as a defense, (3) assessment of fault to the victim, (4) the summary judgment on the plaintiffs' consortium claim, (5) the directed verdict on the punitive-damages claim, and (6) several of the court's evidence rulings. The defendant raises an issue on his cross-appeal regarding the form of the court's instruction on sole proximate cause and a ruling on evidence.

III. The Order for Remittitur.

One of the principal issues on appeal is the district court's order requiring a new trial or the plaintiffs' acceptance of a remittitur. The jury awarded the plaintiffs $260,030 for the present value of Brad's estate, $3055 for funeral expenses, $4915 for predeath medical expenses, $582,000 for predeath physical and mental pain and suffering, and $400,000 for predeath loss of function of the mind and body. The total was $1,250,000.

The district court ordered a new trial or the remittitur of damages in excess of $486,400, reducing pain and suffering to $300,000 and loss of function of mind and body to $40,000 while leaving the other portions of the award intact. The court found the verdict of $982,000 for Brad's pain and suffering and his predeath loss of use of mind and body "shock[ing to the] court's conscience and sense of justice" and unsupported by the evidence because Brad remained conscious for only a few minutes after the accident. Second, the court found passion and prejudice could have prompted the verdict. It concluded the gruesome injuries could have aroused the jury's passion. It also noted Newberg, who was an elderly man, was inattentive at times and occasionally slept during the trial, possibly prejudicing the jury against him. Newberg argues that the court should have reduced the verdict even further—to $12,000 or $1000 for each minute that, the defendant claims, Brad remained conscious.

The Kutas argue the jury's original award was supported by the evidence. They point to other portions of the verdict to illustrate that the award was not exorbitant. For example, they note that the jury allocated $260,030 in damages to Brad's estate, which is only slightly higher than Newberg's own expert's valuation of $259,309 and significantly lower than the plaintiffs' expert's valuation of $1,382,802. Also, they point out, the jury awarded less than the stipulated funeral and predeath medical expenses.

We review a ruling on a motion for new trial for an abuse of discretion. See Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 891 (Iowa 1996); Iowa R. App. P. 14(f)(3). In reviewing claims of excessive damages, we view the evidence in the light most favorable to the plaintiff. Olson v. Prosoco, Inc., 522 N.W.2d 284, 292 (Iowa 1994). A court must not "disturb a jury verdict for damages unless it is `flagrantly excessive or inadequate, so out of reason so as to shock the conscience, the result of passion or prejudice, or lacking in evidentiary support.'" Id. (quoting Harsha v. State Savings Bank, 346 N.W.2d 791, 799 (Iowa 1984)); see also Hurtig v. Bjork, 258 Iowa 155, 164-65, 138 N.W.2d 62, 68 (1965) (Becker, J., dissenting) (cautioning judges not to substitute their opinions for juries' fact-findings when ordering remittiturs).

An abuse-of-discretion standard is appropriate because the trial court has had the advantage of seeing and hearing the evidence; in applying that standard, other cases are of limited value. See Rees v. O'Malley, 461 N.W.2d 833, 840 (Iowa 1990) ("In determining whether the damage award is excessive, we must abide by the principle that each case depends upon its own facts, and precedents are of little value."). Nevertheless, we have compared other cases. See Pagitt v. City of Keokuk, 206 N.W.2d 700, 706 (Iowa 1973) ("After saying, as we frequently have, that verdict comparisons are meaningless in cases of this kind, we nevertheless almost always make them.").

In Kiner v. Reliance Insurance Co., 463 N.W.2d 9, 15 (Iowa 1990), we reversed an order for remittitur because the district court made no findings that the verdict was the result of passion or prejudice or lacked evidentiary support. Unlike Kiner, the district court in this case concluded the verdict was not supported by the evidence. As Newberg points out, Iowa's appellate courts often affirm trial courts' orders of remittitur or order remittiturs on appeal. See, e.g., Giarratano v. Weitz Co., 259 Iowa 1292, 1314, 147 N.W.2d 824, 837 (1967) (reducing a $75,000 award to a seventeen-year-old boy's estate to $50,000); Hurtig, 258 Iowa at 155,138 N.W.2d at 62 (upholding trial court's order remitting a $28,000 verdict for the death of a six-year-old girl to $12,000); Tedrow v. Fort Des Moines Community Servs., Inc., 254 Iowa 193, 204, 117 N.W.2d, 62, 68 (1962) (reducing a verdict from $22,500 to $15,000 for the death of a twelve-year-old girl).

The question is whether the remittitur order was an abuse of discretion, in view of the plaintiffs' claim that the award should not have been modified and the defendant's claim that it should have been reduced even more. Pain and suffering damages are compensable even if the injured person was not conscious for an extended period of time.

We have stated damages for pain and suffering of a decedent may not be recovered "if death or unconsciousness is instantaneous," but "if substantial evidence shows the decedent did suffer pain the item is submissible although the period of consciousness was not protracted."

Lang v. City of Des Moines, 294 N.W.2d 557, 562 (Iowa 1980) (quoting Schlichte v. Franklin Troy Trucks, 265 N.W.2d 725, 727 (Iowa 1978)). Two doctors testified Brad suffered severe pain during the time he was conscious. His injuries included abrasions on his head and neck, fractured ribs, bruised and hemorrhaged lungs, nearly complete amputation of his right pelvis and leg, and bruising and hemorrhaging of his kidneys.

Mercifully, however, Brad was spared the pain from these injuries for an extended time. The district court was in the best position to evaluate this factor, with all of the other evidence, and its order for remittitur was within its discretion. See Lee v. Giangreco, 490 N.W.2d 814, 820 (Iowa 1992) ("We are confident that the district court, having heard firsthand the witnesses... was in the best position to assess the credibility of [the plaintiff's] claims and her resultant injury."). We conclude the amount of damages established by the court's posttrial order was appropriate. Accordingly, the plaintiffs shall accept the judgment as remitted by the district court's order within ten days of the issuance of the procedendo or the case shall be set for a new trial.

IV. The Instruction on Sole Proximate Cause.

Both parties challenge the court's sole-proximate-cause instructions. The plaintiffs argue the jury should not have been allowed to consider the sole-proximate-cause issue at all...