Rosenau v. City of Estherville

• Citation: 199 N.W.2d 125
• Decision Date: 29 June 1972
• Docket Number: No. 55092,55092
• Parties: William ROSENAU, a minor, by Ewald Rosenau, his Father and Next Friend and Ewald Rosenau, Individually, Appellees, v. CITY OF ESTHERVILLE, Appellant.
• Court: Iowa Supreme Court

Page 125

199 N.W.2d 125

William ROSENAU, a minor, by Ewald Rosenau, his Father and Next Friend and Ewald Rosenau, Individually, Appellees, v. CITY OF ESTHERVILLE, Appellant.

No. 55092.

Supreme Court of Iowa.

June 29, 1972.

Daniel D. Sanderson, Estherville, and Pendleton & Pendleton, Storm Lake, for appellant.

Fitzgibbons Brothers, Estherville, for appellees.

REYNOLDSON, Justice.

This was a law action for damages. Defendant city appeals from judgment based on a jury verdict awarding William 'Willy' Rosenau, age 14, damages for personal injuries, and awarding his father damages for medical expenses, loss of earnings and society and service of his son. Willy's injuries were sustained when an unexploded pyrotechnic device, found after a July 4th fireworks display conducted by the city and the Estherville Chamber of Commerce, went off in his hand after being ignited.

Fireworks for this 1969 celebration were ordered by the city from Rich Bros. Interstate Display Fireworks Co. of South Dakota. Included in the display were a number of 'thunder and rainbow' aerial shells. These were 'Class B' fireworks, sold only on permit, not 'Class C' fireworks which may be sold over-the-counter in many states but not in Iowa. The statutory permit (§ 732.18, The Code) was issued by Estherville's clerk to the city of Estherville as permittee.

The record is clear this was a promotional project by the city and the Estherville Chamber of Commerce. The Chamber ultimately reimbursed the city for one-half of the $500 fireworks cost. The city in prior years had participated in this event, which until 1968 had been held on the country club grounds. In 1968 and 1969 the site selected was a ball park within the city limits. Although ownership of this park was not established, evidence was introduced that the city furnished electricity for lighting and its recreation department supervised the area. The park is near high school and grade school buildings and a residential area. It was unfenced and easily accessible from any direction. Children customarily played there.

As in past years, the city firemen conducted the 1969 display. A fire truck was on the scene. As the devices were ignited four malfunctions occurred, including two premature explosions of aerial bombs. One malfunction resulted in secondary explosions on the ground. A fireman was wounded, taken from the scene, and given medical treatment.

Following the display, though lighting was available, the fire department made no effort to search the park for unexploded devices or restrict persons from the area until this could be done. There was trial evidence from which the jury could have found these precautions were contained in Rich Bros. written instructions, drawn to the attention of city employees in prior years, and sent with this display. Further, the area was not wet down after the event.

The next morning a Chamber of Commerce representative, assisted by two small boys, picked up the area. Several misfired devices were discovered and detonated in a barrel.

On the same morning, after this 'cleanup,' two of Willy's young friends found unexploded devices in the park and took them to a residence where Willy was an overnight guest. Willy ignited one of these devices on the ground in the back yard. It clipped the grass in a small area and made a sound described by one boy as approximating the noise made by a 'black cat' firecracker rather than the noise made by the July 4th fireworks display. (A 'black cat' was the class 'C' type firecracker with which Willy and his friends had some experience.) The other boy present said the noise was louder than a 'black cat.'

Willy returned with his friends to the park and there found a fused device about two and a half inches long and one-half inch in diameter, wrapped in a brown paper with a string around it. That evening during a family picnic Willy held this device in his hand while a friend ignited the fuse. Before he could throw it, it exploded in his hand.

The city assigns five errors relied on for reversal.

I. Trial court is alleged to have erred in failing to find Willy guilty of contributory negligence as a matter of law. This was urged in motions for directed verdict and post verdict motions.

Basic to our consideration of this issue are certain propositions well established in our law and incorporated in our Rules of Civil Procedure. In considering the propriety of a motion for directed verdict the court views the evidence in the light most favorable to the party against whom the motion was made. Rule 344(f)(2), R.C.P. He who pleads and relies upon the affirmative of an issue must carry the burden of proving it. R.C.P. 344(f)(5). Generally the question of contributory negligence and proximate cause are for the jury; it is only in the exceptional case these issues may be decided as matters of law. R.C.P. 344(f)(10). Even where the facts are not in dispute or contradicted, if reasonable minds might draw different inferences from them, a jury question is engendered. R.C.P. 344(f)(17).

Section 619.17, The Code, shifted to the defendant not only the burden of pleading and proving plaintiff's contributory negligence, but the burden of proving such negligence, if any, was a proximate cause of the injury or damage. We have held it is one thing to determine the existence of negligence as a matter of law but quite another thing to hold that such negligence was a proximate cause as a matter of law. Kaus v. Scott, 174 N.W.2d 446 (Iowa 1970); Robeson v. Dilts, 170 N.W.2d 408 (Iowa 1969).

However, the city asserts Willy was negligent per se because he violated a penal statute, § 732.18, The Code:

'732.18 Supervised exhibitions--permit. Except as hereinafter provided it shall be unlawful for any person, firm, copartnership, or corporation to offer for sale, expose for sale, sell at retail, or Use or explode any fireworks; provided the council of any city or town or the trustees of any township may, upon application in writing, grant a permit for the display of fireworks by municipalities, fair associations, amusement parks, and other organizations or groups of individuals approved by such city, town, or township authorities When such fireworks display will be handled by a competent operator * * *.' (Emphasis added)

Defendant was of course in violation of this statute if it failed to engage a competent operator for the display, a point apparently answered by the jury's verdict. Historically, it is common knowledge a major consideration in enacting this legislation was to protect minors from the fireworks injuries so prevalent prior to its adoption, by limiting access to such explosives. It would be an anomaly if the city could rely on this statute to defeat this minor's claim. Nor are we persuaded Willy's alleged violation of § 732.18 was negligence per se as to him.

The city relies solely on our decisions holding violation of a rule-of-the-road statute fixing the standard of care, in absence of legal excuse, is negligence per se. We have not extended this rigid rule to other tort cases involving breach of a statute or ordinance. In those situations we have said each case is to be decided in light of the purpose and intent of the pertinent statute or ordinance. Montgomery v. Engel, 179 N.W.2d 478 (Iowa 1970). We are not compelled to determine the degree of negligence, if any, arising out of Willy's alleged violation of § 732.18 because a more basic rule of law applies. Assuming (without deciding) such violation would ordinarily be negligence per se or prima facie negligence, those concepts are in conflict with the enlightened rule that conduct of children is to be measured, not by adult standards, but the standard of reasonable behavior in children of similar age, intelligence and experience. We have long recognized this standard. Giarratano v. Weitz Company, 259 Iowa 1292, 147 N.W.2d 824 (1967); McKiddy v. Des Moines Electric Co., 202 Iowa 225, 206 N.W. 815 (1926). In these cases where the two principles collide--where statute and child meet--the better reasoned decisions hold a child is not to be charged with negligence per se even though his conduct may involve violation of a statute which relating to an adult would require application of that rule. Brown v. Connolly, 206 Cal.App.2d 582, 24 Cal.Rptr. 57 (1962); Fightmaster v. Mode, 31 Ohio App. 273, 167 N.E. 407 (1928); Simmons v. Holm, 229 Or. 373, 367 P.2d 368 (1961); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959); Morby v. Rogers, 122 Utah 540, 252 P.2d 231 (1953); 57 Am.Jur.2d, Negligence § 375, p. 779--780; 65A C.J.S., Negligence § 146(1), p. 181 n. 68.5. We are not confronted here with the question whether this principle should apply when the child has engaged in what is usually considered an adult activity, such as flying an airplane or driving an auto. In such case there is strong authority that public policy outweighs those considerations which ordinarily require a separate standard of care for a minor. W. Prosser, Law of Torts § 32, pp. 156--157 (4th ed. 1971); 2 Restatement (Second) Torts § 283A, comment c at 16.

The city concedes had Willy been age 13, our established standard creating a rebuttable presumption of freedom from contributory negligence would have carried his case to the jury. Lenth v. Schug, 226 Iowa 1, 281 N.W. 510, 287 N.W. 596 (1938); Johnston v. Delano, 175 Iowa 498, 154 N.W. 1013 (1915). Here the trial court instructed the jury Willy's conduct was to be viewed in light of his age, experience, maturity or immaturity of his judgment, his education and general situation in life and what would be expected of an ordinary person of that age and experience. The same instruction told the jury it was unlawful to use or explode fireworks without a permit, and if Willy violated this law such violation would constitute contributory negligence. Defendant made no objection to that instruction, which was more favorable to the city than the...