Sisco v. Iowa-Illinois Gas and Elec. Co.
| Decision Date | 26 March 1985 |
| Docket Number | No. 84-681,IOWA-ILLINOIS,84-681 |
| Citation | 368 N.W.2d 853 |
| Parties | Clifford Allen SISCO and Patricia Sisco, and Lisa Sisco, a Minor by Clifford Allen Sisco, Next Friend, Plaintiffs-Appellants, v.GAS AND ELECTRIC COMPANY, an Illinois Corporation, and Northwestern Bell Telephone Company, an Iowa Corporation, Defendants-Appellees. |
| Court | Iowa Court of Appeals |
John J. Carlin of John J. Carlin, P.C., and John Flynn of Wells, Brubaker, DeSilva, Flynn & Darland, P.C., Davenport, for plaintiffs-appellants.
Charles W. Brooks of Lane & Waterman, Davenport, for defendant-appellee Iowa-Illinois.
Peter C. Fieweger and Linda E. Frischmeyer of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., Rock Island, Ill., for defendant-appellee Northwestern Bell.
Heard by OXBERGER, C.J., and DONIELSON and SNELL, JJ.
This appeal is made from several rulings of the trial court including a motion in limine, two applications to adjudicate law points, two motions for partial summary judgment, and a motion to continue. We affirm in part, reverse in part, and remand.
Plaintiff, Clifford Sisco, was riding his motorcycle along Rockingham Road in Davenport, June 22, 1980. He drove off the normally traveled portion of the road and struck a guy wire attached to a utility pole. Sisco lost his arm and part of his shoulder, suffered facial lacerations and other severe injuries. The pole belonged to Northwestern Bell and was located in the area between the street and the sidewalk. It was placed at the location by Bell's predecessor who had a franchise from the city. The pole was replaced in 1955 and again in 1969. No permit was obtained for the 1969 replacement. Two guy wires had been installed, one of them by defendant Iowa-Illinois who was leasing space on the pole.
Sisco, along with his wife and daughter, filed a joint petition against Iowa-Illinois and against Bell. They sought recovery on the theories of negligence and public nuisance.
Subsequently, each defendant filed a motion in limine seeking exclusion of any reference to Iowa Administrative Code section 250-25.2(2)(c), which requires all guards on guy wires be color marked. This regulation was enacted in 1979. On December 16, 1983, the trial court ruled the section of the Code would not be admissible to show the rule applied to guy wires which preexisted the adoption of the regulation, but was admissible to show "the state of the art."
A motion for summary judgment, and two applications to adjudicate law points were made by Bell. Another application to adjudicate law points was also made by Iowa-Illinois. The court ruled on these motions on February 17, 1984. It granted partial summary judgment and held there was no nuisance per se, finding there was no violation of permit requirements by Bell in replacing the pole, and that Bell did not violate the law by not seeking a franchise to place the poles in the city. An application to adjudicate law points pursuant to Iowa Rule of Civil Procedure 105 was granted, holding nuisance was not a theory available to plaintiffs since Sisco had left the main portion of the road when the accident occurred. In making its ruling, the court referred to a plat submitted by plaintiffs as a pretrial exhibit. A second application to adjudicate law points regarding proximate cause was denied, the court finding the facts were controverted. A third application to adjudicate law points was granted, the court finding, as it did in the motion in limine, that there was no duty to retrofit the poles with color-marked guy wire. On March 7, the court granted another motion for partial summary judgment, ruling as it did in the first application to adjudicate law points, that the nuisance theory was not available since plaintiff had left the road when the accident occurred. On March 12 a motion to continue by plaintiffs was denied.
The plaintiffs withdrew their causes of action for negligence, and the court subsequently found no issues remained for trial and dismissed the petitions.
Plaintiffs assert the court erred: (1) in granting the application to adjudicate law points and summary judgment, which held there was no nuisance theory available since plaintiff left the traveled portion of the road; (2) in granting a summary judgment on the issue of negligence per se by finding no statute was violated by Northwestern Bell; (3) granting the motion in limine and application to adjudicate law points, finding there was no duty to retrofit existing guy wires with colored markers; and (4) refusing to grant the motion to continue.
An application to adjudicate law points may be granted when there is a point of law raised which goes to the whole or any material part of a case. Iowa R.Civ.P. 105. It is to be made based only on uncontroverted facts, and no evidence is allowed outside the pleadings. Montz v. Hill-Mont Land Co., 329 N.W.2d 657-58 (Iowa 1983); M & W Farm Service Co. v. Callison, 285 N.W.2d 271, 273 (Iowa 1979). A motion for summary judgment may be joined with an application under rule 105. Kriv v. Northwestern Securities Co., 237 Iowa 1189, 24 N.W.2d 751 (1946). A summary judgment is granted under Rule 237 when no genuine issue of material fact remains to be decided, and, as a matter of law, the court and not the fact finder should make the determination. As a result, both motions involve the same question of whether the issue should be decided as a matter of law, based on uncontroverted facts, or whether the issue should be presented to a fact finder. Kriv at 1193, 24 N.W.2d at 754.
A public nuisance is found when defendant's conduct is unlawful or antisocial and it unduly and unreasonably interferes with a substantial number of people in the lawful exercise of a public right. Pottawattamie County v. Iowa Department of Environmental Quality, Air Quality Commission, 272 N.W.2d 448, 453 (Iowa 1978).
A nuisance is defined in our Code as including: "The obstructing or encumbering by fences, buildings, or otherwise the public roads, private ways, streets, alleys, commons, landing places, or burying grounds." Iowa Code § 657.2(5) (1983).
The court reasoned that since the public had no right to drive other than in the traveled portion of the street, the elements of public nuisance could not be met.
Plaintiffs point to the definition of street found at Iowa Code § 321.1(48) which states:
"Street" or "highway" means the entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right.
Plaintiffs also refer the court to a number of cases which indicate a nuisance may be found when an object is close enough to the street to cause an obstruction. Kearney v. Ahmann, 264 N.W.2d 768 (Iowa 1978); Weber v. Madison, 251 N.W.2d 523 (Iowa 1977); Town of Lamoni v. Smith, 217 Iowa 264, 251 N.W. 706 (1934); Incorporated Town of Ackley v. Central States Electric Co., 204 Iowa 1246, 214 N.W. 879 (1927). The Siscos also say it was error for the court to consider the plat submitted as a pretrial brief, since the facts concerning the placement of the pole and wires are controverted.
Northwestern Bell responds by claiming several of the cases cited by plaintiffs for the definition of street and nuisance are inapplicable to this case, because the question in those cases involved the municipalities' power to declare something a nuisance. Bell says this is different from the situation here, where the nuisance theory is being used to recover for personal injury. Bell also refers the court to a case it says is on point for the proposition that an object cannot be a nuisance if it is not in the street. Greenland v. City of Des Moines, 206 Iowa 1298, 221 N.W. 953 (1928).
We first note that the question of how far the pole and wires were located from the traveled portion of the street is a controverted fact. This is evident from Bell's brief, where they claim the pole is six feet from the curb and plaintiff claims it is four feet from the curb. The only point which appears to be uncontroverted is that the pole is not in the traveled portion of the street. This is the only fact concerning the distance from the street the court should have considered. However, we note also that if the court's decision may be upheld considering the uncontroverted facts, any error in reviewing the plat is harmless. See Ke-Wash Co. v. Stauffer Chemical Co., 177 N.W.2d 5 (Iowa 1970).
We disagree that the Greenland case cited by the counsel for Bell, or the Weber case cited by the Siscos, are pertinent to plaintiffs' action. Both these cases dealt with a somewhat similar fact situation, where a person was injured when there was an object on or near the road. Weber at 525; Greenland at 1299, 221 N.W. at 953. However, the court was dealing not with the question of nuisance, but with the question of proximate cause for the purposes of determining negligence. Id. In Greenland, the court decided the cause of the plaintiff's accident was not the fact that a pole was located at the end of a road, but because plaintiff's windshield wipers were not used and it was raining. Id. at 1301, 221 N.W. at 953. It was on this point the court commented that the pole was properly located off the traveled portion of the road. Greenland at 1300, 221 N.W. 954. The court never addressed the issue of whether the pole could constitute a nuisance if it was located on the parking, and not in the street.
We also disagree with the contention that the cases defining "street" for the purpose of determining what constitutes a nuisance are irrelevant merely because the court dealt with the municipalities' powers in this area. Defendant Bell relies heavily on the case of Lacey v. City of Oskaloosa, 143 Iowa 704, 121 N.W. 542 (1909) for this proposition. The court was to determine whether the city could declare hitching posts in the street a nuisance, and order them removed. Id. Bell points to language...
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