Summy v. City of Des Moines

• Citation: 708 N.W.2d 333
• Decision Date: 13 January 2006
• Docket Number: No. 03-1807.,03-1807.
• Parties: Richard C. SUMMY and Christine M. Summy, Appellees, v. CITY OF DES MOINES, Iowa, Appellant.
• Court: United States State Supreme Court of Iowa

Page 333

708 N.W.2d 333

Richard C. SUMMY and Christine M. Summy, Appellees, v. CITY OF DES MOINES, Iowa, Appellant.

No. 03-1807.

Supreme Court of Iowa.

January 13, 2006.

COPYRIGHT MATERIAL OMITTED

Mark Godwin, Deputy City Attorney, Des Moines, for appellant.

Edward M. (Ted) Spellman and Martin E. Spellman of Spellman, Spellman, Spellman, Spellman, Kealhofer & Spellman, Perry, for appellees.

TERNUS, Justice.

The appellee, Richard C. Summy, was seriously injured during a golf outing when he was struck by a golf ball hit by another player. Summy successfully sued the owner of the golf course, appellant City of Des Moines. The City has appealed, alleging several grounds for reversal: (1) the district court erred when it eliminated all Des Moines property owners from the trial jury; (2) the court erred in submitting the case under the theory the City failed to protect an invitee from the harmful act of a third person rather than under the theory the plaintiff was harmed by a condition on the premises; (3) the court abused its discretion in refusing to instruct the jury on sole proximate cause or to allow the defendant to discuss this concept in opening statement; and (4) the court erred in failing to direct a verdict on the grounds the City was immune from liability and the City owed the plaintiff no individual duty to protect him from the ordinary risks inherent in the game of golf. Upon our review of the record and consideration of the arguments of the parties, we affirm.

I. Background Facts and Proceedings.

On June 5, 2000, Summy was playing golf at the City-owned Waveland Golf Course when he was struck in the eye with a golf ball. Summy was on the eighteenth fairway at the time. The ball was hit from the tee on the first hole by another golfer Richard Thomas. Summy sued the City,¹ alleging it

had designed, operated, and maintained the Waveland Golf Course in an unreasonably dangerous condition in that a golfer engaging in golfing activities on the 18th golf hole was at unreasonable risk of being struck by a golf ball struck by a golfer from the tee box of the first hole of the golf course.

The plaintiff alleged a number of specific ways in which the City was negligent. The City answered, raising several affirmative defenses, including comparative fault, sole proximate cause, and immunity under Iowa Code chapter 670 (1999).

Subsequently, the City filed a motion for summary judgment on the basis of the immunity granted in section 670.4(10) for liability based on the "issuance of a permit, inspection, investigation, or otherwise . . . if the damage is caused by a third party." Iowa Code § 670.4(10). The City also asserted that it owed Summy no duty to protect him from the "ordinary and ever present risks of the sport of golf." Relying on the duty imposed on possessors of land by Restatement (Second) of Torts section 344 (1965), the district court rejected the City's argument that it owed no duty to the plaintiff. The court also concluded the statutory immunity asserted by the City was not applicable.

Prior to trial, the plaintiff filed a motion to limit prospective jurors to nonresidents of the City of Des Moines in view of his severe injury and the potential for a high verdict against the City. Although the court denied the plaintiff's request to remove all residents of the City from the jury panel, the court ruled that property owners in the City would be excused from the panel. Immediately before trial, the City challenged the jury panel, arguing the removal of "all jurors who were property owners in the City of Des Moines" was "a material departure from the statutory requirements for drawing or returning a jury." This challenge was rejected by the trial court.

The plaintiff also filed a motion in limine before trial asking the court to prohibit the defendant from mentioning or arguing that the actions or failure to act of the other golfer—Thomas—constituted a proximate cause of the plaintiff's injuries. The court agreed that the other golfer's negligence was not at issue, noting that Thomas was not a party to the lawsuit and sole proximate cause would not be an issue in the case.

At trial Summy introduced evidence that the design of the golf course called for a tree barrier between the first and eighteenth fairways. Although such a barrier had existed at one time, sixty to eighty mature trees in the area between these fairways died in the 1960s. In June 2000, there were a few small trees between the first and eighteenth fairways, but according to the plaintiff's witnesses these trees were not a sufficient protective barrier. Even one of the City's witnesses acknowledged there was a hazard in the area of fairway eighteen from being hit by a shot off tee number one. Summy's experts testified that the two fairways had overlapping areas of play and that it was absolutely foreseeable that golf balls hit from the first tee would travel into the area where Summy was hit due to the overlapping playing areas and the lack of heavy trees between the fairways. The experts also identified several ways in which the safety in this area could have been improved. In addition, evidence was presented that the City had no inspection or safety program, and no one was responsible for identifying hazards on the course so protective measures could be implemented.

The record also contains evidence in support of the City's comparative fault defense. At the time Summy was hit by the golf ball, he was twenty feet from the rough in between the eighteenth and first fairways and approximately 150 yards from the white tee box of the number one hole. Summy testified that he saw individuals warming up on the number one tee, but he focused his attention on his golfing partner even though he was aware that a golfer could get hit by balls shot from adjacent fairways. Summy admitted that had he looked toward the number one tee when Thomas was teeing off, he could have seen Thomas swinging his club, as nothing would have blocked Summy's view. On the other hand, Summy believed that if Thomas had yelled "fore," there was a possibility that Summy would have had time to react and prevent the injury. Thomas testified that he did not yell "fore" when his shot veered into the eighteenth fairway because he had not noticed anyone in that location.

The City made motions for directed verdict at the proper times, raising the same arguments made in its motion for summary judgment. The trial court refused to grant a directed verdict to the defendant.

The jury found both Summy and the City at fault. Summy was held twenty-five percent at fault, and the City was found seventy-five percent at fault. The trial court entered judgment for the damages found by the jury, reduced by the plaintiff's fault, and the City appealed.

II. Jury Selection.

A. Issue. The City renews its challenge to the trial jury on appeal. The defendant claims the trial court ignored two statutory edicts and a rule of civil procedure when it excused Des Moines property owners from the jury panel. See Iowa Code § 607A.3(7) (defining "panel" as "those jurors drawn or assigned for service to a courtroom, judge, or trial"). The City relies on Iowa Code section 624.11A, which specifies the circumstances under which a juror may be challenged based on the juror's taxpayer status, and on Iowa Code section 607A.2, which prohibits the exclusion of persons from jury service based on the person's "age if the person is eighteen years of age or older, race, creed, color, sex, national origin, religion, economic status, physical disability, or occupation." (Emphasis added.) Finally, the defendant argues Iowa Rule of Civil Procedure 1.915(6) sets forth the reasons that a party may challenge a potential juror for cause and none of those reasons include potential bias or prejudice.

B. Error preservation. Because the plaintiff insists the defendant did not preserve error on its challenge to the court's action in striking property owners from the jury panel, our analysis begins with rule 1.915(4), which states:

Before any juror is sworn, either party may challenge the panel, in writing, distinctly specifying the grounds, which can be founded only on a material departure from the statutory requirements for drawing or returning the jury.

Iowa R. Civ. P. 1.915(4). The plaintiff claims the defendant failed to comply with this rule in two particulars: (1) the City's written objection was not filed until after the jury had been selected, although an oral objection had been made immediately before trial; and (2) the City's motion did not identify the two statutes that the City now claims prohibited the exclusion of Des Moines property owners from the jury panel.

We think rule 1.915(4) does not apply to the City's objections. That rule states a challenge to the panel "can be founded only on a material departure from the requirements for drawing or returning the jury." Iowa R. Civ. P. 1.915(4) (emphasis added). The term "drawing" refers to the procedure incident to the "actual drawing of names of eligible jurors" from, for example, a jury wheel, and the term "returning" refers to the procedure followed to summon into court the jurors drawn. See People v. Hetenyi, 36 Misc.2d 518, 235 N.Y.S.2d 164, 166 (N.Y.County Ct.1949) (interpreting similar New York rule). See generally Iowa Code ch. 607A (outlining procedures for drawing and returning a jury). The City has not claimed noncompliance with the procedural requirements set forth in chapter 607A for drawing and returning the jury. Cf. State v. Morgan, 559 N.W.2d 603, 610 (Iowa 1997) (defendant contended the method by which the jury list was compiled failed to follow the "random selection" requirement of section 607A.10); State v. Lohr, 266 N.W.2d 1, 2 (Iowa 1978) (defendant claimed noncompliance with statutorily prescribed procedure for drawing of list from which defendant's trial jury was ultimately chosen). Rather, the defendant's challenge is...