Sechler v. State

• Decision Date: 23 November 1983
• Docket Number: No. 68678,68678
• Citation: 340 N.W.2d 759
• Parties: Ronald SECHLER, Administrator of the Estate of Jeffrey Sechler, Deceased, Appellant, v. STATE of Iowa, Roger Bierbaum and Lowell Essick, Appellees. STATE of Iowa, Appellee, v. GRAVES CONSTRUCTION CO., INC. of Melvin, Iowa, and Midwest Paving Co., of Sioux City, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 759

340 N.W.2d 759

Ronald SECHLER, Administrator of the Estate of Jeffrey Sechler, Deceased, Appellant, v. STATE of Iowa, Roger Bierbaum and Lowell Essick, Appellees.

STATE of Iowa, Appellee, v. GRAVES CONSTRUCTION CO., INC. of Melvin, Iowa, and Midwest Paving Co., of Sioux City, Iowa, Appellees.

No. 68678.

Supreme Court of Iowa.

Nov. 23, 1983.

Rehearing Denied Dec. 21, 1983.

John D. Loughlin and Donavon D. Schaefer of Loughlin Law Firm, Cherokee, for appellant.

Thomas J. Miller, Atty. Gen., and Richard E. Mull, Asst. Atty. Gen., for appellees.

Considered en banc.

SCHULTZ, Justice.

This appeal requires us to determine whether the term "gross negligence" as used in Iowa Code section 306.41 is a higher degree of negligence that is subject to the defense of contributory negligence or a different kind of conduct that is immune to such defense. Section 306.41 places liability upon the agency having jurisdiction over temporarily closed roads and the person or contractors employed to carry out the construction only in the event that damage to vehicles or persons using the road is caused "by gross negligence."

The plaintiff, Ronald Sechler, administrator of the estate of Jeffrey Sechler, deceased, filed a tort action against the State and two of its employees based on alleged negligence in barricading a closed highway. The State's cross-petition against the construction companies involved in rebuilding the closed highway was severed from this action.

The case was tried to the court, and the action against the two employees was dismissed. The trial court found the State grossly negligent; however, the plaintiff was denied recovery because of the contributory negligence of the decedent.

This tragic accident occurred in the early morning hours of August 2, 1979, when a motorcycle driven by the decedent struck a barricade across an officially closed section of Highway 3, near Cherokee, Iowa. Decedent was returning to his home after spending an evening drinking with friends at several taverns in Cherokee. He entered Highway 3 and traveled in a northwesterly direction past the posted "ROAD CLOSED" sign. He passed two staggered barriers that extended across each lane of the two-lane highway. He had to zigzag through the barriers before approaching the one he hit. The barrier he struck was topped with two long 2 X 8 boards and backed by two very large chunks of concrete. The barrier evidently had been reinforced in this manner because it had been knocked down by vandals on several occasions. The decedent was thrown from the motorcycle and killed instantly.

On appeal plaintiff asserts that: (1) under section 306.41 when gross negligence is established, the defense of contributory negligence is unavailable; (2) the State failed to establish an adequate foundation for the admission of a blood alcohol test performed on a sample taken from decedent's body, a test which showed a blood alcohol level of .21 percent alcohol by weight; and (3) there was not substantial evidence that plaintiff's decedent was contributorily negligent.

Before we address these contentions, we will consider an alternative argument advanced by plaintiff. Specifically, plaintiff contends that, in the absence of a disposition favorable to the plaintiff on the issue of contributory negligence, the doctrine of comparative negligence should be applied. Thus, if we decide consideration of the decedent's negligence is appropriate, this should not operate to completely bar recovery but merely to reduce the amount of damages plaintiff would otherwise be entitled to collect. Because plaintiff failed to preserve error on this issue, the precepts of comparative fault do not govern the outcome of this case.

We recently held in Goetzman v. Wichern, 327 N.W.2d 742, 745 (Iowa 1982) "that in all cases in which contributory negligence has previously been a complete defense, it is supplanted by the doctrine of comparative negligence." Id. In regard to retroactivity we indicated that our adoption of comparative negligence was applicable to "all pending cases, including appeals, in which the issue has been preserved." Id.

Plaintiff claims he preserved error by his motion to amend conclusions of law concerning the trial court's ruling that decedent's contributory negligence barred recovery. In that motion and also in a subsequent motion for a new trial, plaintiff repeatedly stated that contributory negligence is an improper defense to actions based on gross negligence. These references to the impropriety of contributory negligence as a defense fall short of preserving error on the issue of comparative negligence. In particular, the attack by the plaintiff on the defense of contributory negligence did not sufficiently alert the trial court that rather than considering the decedent's negligence as a complete bar to recovery, it should substitute the standard of comparative fault. See Schuller v. Hy-Vee Food Stores, Inc., 328 N.W.2d 328, 333 (Iowa 1982). Having decided the plaintiff failed to preserve error on the doctrine of comparative negligence, we now turn to the issue of whether contributory negligence is available as a defense in actions based on gross negligence.

I. Gross Negligence

Until Goetzman, we long embraced the common law doctrine that contributory negligence is a complete bar to recovery in actions based on negligence. Conversely, this defense was not available when liability was based on more culpable conduct such as recklessness, willfulness or wantonness. Siesseger v. Puth, 213 Iowa 164, 182, 239 N.W. 46, 54 (1931); Restatement (Second) of Torts §§ 482, 503 (1965); 57 Am.Jur.2d Negligence § 307 (1971); 65A C.J.S. Negligence § 131(a) (1966); Cf. Restatement (Second) of Torts § 503 (while contributory negligence does not bar recovery caused by defendant's recklessness, plaintiff's contributory recklessness or assumption of risk is a bar).

We pointed out in Goetzman that the legislature had abrogated the doctrine of contributory negligence in certain limited situations involving suits by employees and further had shifted the burden of proof on this issue to the defendant. 327 N.W.2d at 747-48. Despite these minor legislative changes, the doctrine of contributory negligence remained part of our common law until we judicially adopted comparative negligence in Goetzman. As indicated earlier, this substitute doctrine is not available to the plaintiff. Thus, this case is governed by our common law principles of contributory negligence. The applicability of this defense to an action under section 306.41 depends, in turn, on what the legislature intended when it used the term "gross negligence." Initially we must determine whether the legislature intended the term "gross negligence" to mean a greater degree or a different kind of negligence.

Plaintiff claims that the legislature intended to establish a new kind of negligence by its enactment of section 306.41. He correctly points out that our prior decisions uniformly hold there are no degrees of negligence in Iowa. See e.g., Hendricks v. Broderick, 284 N.W.2d 209, 214 (Iowa 1979) ("we do not recognize degrees of negligence for liability purposes"); Denney v. Chicago, Rock Island, Pacific Railroad Company, 150 Iowa 460, 464-65, 130 N.W. 363, 364 (1911) ("the actionable character of negligence is not dependent upon its 'degree,' and the ancient differentiation into 'gross,' 'ordinary' and 'slight' has come to mean little more than a matter of comparative emphasis in the discussion of the testimony"); see also Tisserat v. Peters, 251 Iowa 250, 252, 99 N.W.2d 924, 925-26 (1959). Thus, plaintiff reasons that the legislature's use of the term "gross negligence" evinces an intention to establish a new type of negligence--one not vulnerable to the defense of contributory negligence. Essentially, plaintiff claims that the legislature was acquainted with our nonrecognition of degrees of negligence and consequently intended its use of "gross negligence" to be something other than a mere degree of negligent conduct.

The trial court did not agree with plaintiff's assessment and ruled that gross negligence, as used in this section, is a higher degree of negligence rather than a different kind. Specifically, the trial court distinguished gross negligence from wanton or reckless misconduct and concluded that gross negligence, while greater in magnitude than ordinary negligence, is something less than willful, wanton or reckless conduct. Given this definition, the trial court ruled an action based on gross negligence was subject to the defense of contributory negligence.

We agree with the trial court's conclusion that gross negligence, as the term is used here, is only a greater degree of negligence, and that an action based on gross negligence is subject to the defense of contributory negligence. In reaching this conclusion, we are mindful of our prior caselaw refusing to recognize degrees of negligence. Nevertheless, that law is not controlling here. The issue presented in this case is the definition of gross negligence in a statutory enactment. Even though our prior cases have eliminated gross negligence from the common law, it was within the legislature's prerogative to reinstate it as a basis for liability. Thus, our conclusion is based upon our interpretation of the statutory meaning of the term.

In our role of determining the meaning of statutes, the ultimate goal is to ascertain and if possible give effect to the intention of the legislature. Janson v. Fulton, 162 N.W.2d 438, 442 (Iowa 1968). When a statute does not define or explain a term, we generally resort to the common law to give it meaning. Hassebroch v. Weaver Construction Co., 246 Iowa 622, 627, 67 N.W.2d 549, 552 (1955). Degrees of negligence were recognized in early common law. These degrees were described by the terms slight, ordinary and gross. 65 C.J.S. Negligence § 8(1) (1966). Thus, our interpretation of gross negligence as a...