Lang v. City of Des Moines

• Decision Date: 16 July 1980
• Docket Number: No. 2-63713,2-63713
• Citation: 294 N.W.2d 557
• Parties: Raymond T. LANG, Jr., Executor of the Estate of Joan Marie Lang, Deceased, Appellee, v. CITY OF DES MOINES, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 557

294 N.W.2d 557

Raymond T. LANG, Jr., Executor of the Estate of Joan Marie Lang, Deceased, Appellee, v. CITY OF DES MOINES, Iowa, Appellant.

No. 2-63713.

Supreme Court of Iowa.

July 16, 1980.

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

Nick Critelli, of Critelli & Foxhoven, P. C., Des Moines, for appellee.

Considered by REES, P. J., and UHLENHOPP, HARRIS, McCORMICK, and ALLBEE, JJ.

UHLENHOPP, Justice.

This wrongful death action against the City of Des Moines requires us to consider the adequacy of the trial court's instructions regarding the City's duty of care toward its jail inmates, the sufficiency of the evidence to warrant the instructions on damages, and the propriety of excluding as jurors all panel members who owned taxable real estate in Des Moines.

The case arose as a result of the death of Joan Marie Lang, which followed events that occurred on the morning of March 20, 1976. On March 19 Lang had walked away from a detoxification center where she had been receiving treatment for alcoholism on a voluntary basis. Police were alerted and Lang was taken into custody a few blocks from the center. The police offered to return her to the center but she refused, whereupon they took her to the police station and booked her for intoxication. A police matron typed notes on the back of the arrest report based on observations made by her and by the arresting officer. The notes included the admonition that Lang "would have to be watched" because she had attempted or threatened suicide, that her head and hands were shaking, and that she appeared to be "suffering from D.T.'s." The arrest report also included comments that Lang had been "in bad shape" when arrested but was "supposed to be a little better now." The latter comment, however, was followed by several question marks, which the police matron testified were intended to show her skepticism that Lang had in fact improved.

At approximately 9:40 p. m. on March 19, an officer placed Lang in an individual "St. Louis" cell. Such a cell is specially designed to provide guards with a better view of the inmate than is possible with other cells and to prevent the inmate from obtaining glassware of any kind. The matron testified that Lang was checked more frequently than other prisoners during the night, but did not specify how frequently. At approximately 5:15 o'clock in the morning Lang asked a matron for a cigarette and a cup of coffee because she felt she might be going into delerium tremens. The matron brought her the cigarette and coffee but took them away because she feared that Lang was shaking so badly that she would burn herself. The matron then left to seek instructions regarding what she should do if Lang were to go into delerium tremens. When she returned Lang was on her bunk and the matron did not disturb her.

Shortly thereafter the matron heard a noise and upon investigation found Lang lying on the floor of her cell. She testified that Lang was having a seizure-type of involuntary movement. The matron called other jail personnel who carried Lang into the hallway and talked with her. Jail personnel testified at trial that at the time Lang still appeared to be intoxicated but spoke coherently and exhibited no external signs of injury. She indicated a desire to return to the detoxification center, and the personnel placed her back in the cell. Approximately one-half hour later personnel removed her from her cell and took her to the booking room for the trip to the detoxification center. While in the booking room Lang began to experience violent seizures and appeared to lose consciousness fully or partially. Personnel took her to a hospital, where she lapsed into a coma from which she never recovered.

An autopsy performed a few days after Lang's death revealed that she had suffered a skull fracture which caused swelling and bleeding in the brain. The swelling and bleeding caused pressure on parts of the brain, which in turn resulted in loss of vital functions and eventual death.

Lang had been divorced about six months before her death. She was survived by four sons: Tom, 22, Richard, 21, David, 15, and Joe, 11.

The executor of Lang's estate brought this wrongful death action against the City of Des Moines alleging that Lang died as a result of the City's negligence during the time she was in the Des Moines jail. Trial to a jury resulted in a verdict of $65,603.90 against the City. The City appealed from the judgment.

I. Instructions on City's duty of care. The City's first contention relates to the trial court's jury instructions regarding the duty of care owed by the City to its jail inmates. Instructions 4 and 9 stated the standard of care the jury was to apply. Instruction 9 stated:

Your are instructed that the City of Des Moines has a duty as to its prisoners in its custody to exercise ordinary and reasonable care in the following particulars, to-wit:

1. To provide a reasonably safe surroundings for the care of Joan Marie Lang under all the circumstances.

2. To provide reasonable supervision or observation consistent with all the circumstances.

3. To use ordinary and reasonable care in providing for medical and physical services for injured or ill prisoners.

If you find that the defendant, City of Des Moines has failed to exercise ordinary and reasonable care under any one or more of the foregoing specific obligations or duties such a failure will constitute negligence.

Instruction 4 complemented Instruction 9 by defining "ordinary care." It stated in part that "(o)rdinary care is that degree of care which an ordinary careful and prudent person would exercise under the circumstances." Aside from Instruction 4, the court did not enlarge on the specifications of negligence.

This court stated the substantive law on a jailer's duty of care in Smith v. Miller, 241 Iowa 625, 628, 40 N.W.2d 597, 598 (1950) (citations omitted):

Aside from statutory requirements a sheriff owes a general duty to a prisoner to save him from harm and he is personally liable for negligence or wrongful acts causing the prisoners injury or death. In (O'Dell v. Goodsell, 149 Neb. 261, 30 N.W.2d 906, 909) it was held: "Beyond statutory requirements a sheriff is bound to exercise in the control and management of the jail the degree of care requisite to the reasonably adequate protection of the prisoners or inmates."

The court recently stated in Barnard v. State, 265 N.W.2d 620, 621 (Iowa 1978):

Although we have not considered a claim under Ch. 25A based on a fellow prisoner's assault during confinement in a state institution, we have held the Iowa Tort Claims Act permits an action by a prisoner injured by the state's negligence. McBroom v. State, 226 N.W.2d 41, 44 (Iowa 1975). The same rule applies when the state negligently permits one in its custody to be injured by the violent assault of another prisoner. Of course, the state is not an insurer of the prisoner's safety, but it must exercise reasonable care to protect him from harm.

The American Law Institute states that "(o)ne who is required by law to take . . . the custody of another under circumstances such as to deprive the other of his normal opportunities for protection" is under a duty (1) to protect the other against unreasonable risk of physical harm, (2) to give the other first aid after he knows or has reason to know that the other is ill or injured, and (3) to care for the other until he or she can be cared for by others. See Restatement (Second) of Torts § 314A(1), (4). The Institute states in Comments e and f to section 314A:

e. The duty in each case is only one to exercise reasonable care under the circumstances. The defendant is not liable where he neither knows nor should know of the unreasonable risk, or of the illness or injury. He is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate, or to give aid to one whom he has no reason to know to be ill. He is not required to take any action where the risk does not appear to be an unreasonable one, as where a passenger appears to be merely carsick, and likely to recover shortly without aid.

f. The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured. He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.

The City advances several contentions. Initially it contends that the trial court's negligence instructions are too general, and it cites Manley v. O'Brien County Rural Electric Cooperative, 267 N.W.2d 39, 42 (Iowa 1978). In order to urge this objection successfully on appeal, however, the objector must have asked the trial court for more specific instructions. See Iowa R.Civ.P. 196; LaSell v. Tri-States Theatre Corp., 235 Iowa 492, 503, 17 N.W.2d 89, 94 (1945). Although the City did object before the trial court that Instruction 9 was too general, it did not apprise the court of the particulars in which it should make the instruction more specific except to the extent we will presently consider regarding requested instructions. Because the City's objection to Instruction 9 was insufficiently specific, See Wambsgans v. Price, 274 N.W.2d 362, 365 (Iowa 1979), we do not consider it.

Next the City objects to the trial court's refusal to give the City's first proposed instruction. That instruction stated in part that the City "does not insure the...