Tamco Pork II, LLC v. Heartland Co-Op

• Decision Date: 22 July 2015
• Docket Number: No. 14–0412.,14–0412.
• Citation: 876 N.W.2d 226
• Parties: TAMCO PORK II, LLC and Farm Bureau Insurance Company, as Subrogee of Tamco Pork II, LLC, Plaintiffs–Appellants, v. HEARTLAND CO–OP and Pro Build, LLC, Defendants–Appellees.
• Court: Iowa Court of Appeals

876 N.W.2d 226

TAMCO PORK II, LLC and Farm Bureau Insurance Company, as Subrogee of Tamco Pork II, LLC, Plaintiffs–Appellants,

v.HEARTLAND CO–OP and Pro Build, LLC, Defendants–Appellees.

No. 14–0412.

Court of Appeals of Iowa.

July 22, 2015.

Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for appellants.

David M. Dahlmeier and Mark R. Bradford of Bassford Remele, Minneapolis, Minnesota, and Sarah M. Kouri of Loney

& Schueller, LLC, Des Moines, for appelleeHeartland Co-op.

Samuel C. Anderson of Swisher & Cohrt, P.L.C., Waterloo, for appelleePro Build, LLC.

Heard by VOGEL, P.J., McDONALD, J., and ZIMMER, S.J.^*

McDONALD, J.

Tamco Pork II, LLC, and Farm Bureau Mutual Insurance Company, as subrogee, (collectively, hereinafter "Tamco") pursue this appeal following an adverse jury verdict in their action for negligence against Heartland Co-op and Pro Build LLC.Tamco's claim against the defendants arises out of a fire occurring at Tamco's newly renovated hog-production facility.On appeal, Tamco contends the district court erred in refusing to give Tamco's requested general negligence (res ipsa loquitur) instruction to the jury.

I.

Tamco operated a hog-production facility near Gilman, Iowa.In 2008, Tamco decided to expand its hog-production facility.The expansion included construction of a gestation building, a farrowing building, and an office space/hallway that connected Tamco's production buildings.Tamco directly contracted with Heartland to install the exterior infrastructure necessary to provide the facility with liquid propane gas, including installation of a liquid propane gas tank and liquid propane gas lines from the storage tank to the exterior of the facility.Tamco directly contracted with Pro Build to install the interior piping and plumbing systems, including installation of the gas lines from the exterior walls throughout the interior of the building to connect heaters and other devices.

By the end of March 2009, the gestation building was finished and in use.The farrowing building and office/hallway were near completion.The primary remaining work was installation and connection of the exterior gas lines to the facility.

On the morning of April 1, 2009, Jeff Strayer, the Heartland installer, arrived at Tamco's facility to connect the exterior gas lines to the building.Between 9:30 and 10:00 a.m., he left the job site to purchase copper wire necessary to complete the project.At approximately the same time, Eric Sage, a Tamco employee, was moving hogs into the new farrowing building.Sage attempted to turn on the ventilation fans in the building, which was the first time they would have been turned on.Initially, the fans did not turn on.Sage toggled the switch back and forth several times until the ventilation fans began operating.He did not notice anything amiss.Shortly after 11:00 a.m., while working in the new gestation building, Sage heard hogs squealing.He saw black smoke coming from the doorway at the entrance to the new office/hallway.He opened the door and saw thick black smoke in the hallway and also felt heat.He estimated it was about 11:20 or 11:25 a.m. at this time.Sage exited the building, which was quickly consumed by fire.

Tamco brought this action against Heartland and Pro Build.The case was submitted to the jury on a theory of negligence.With respect to Heartland, the marshalling instruction set forth three specifications of negligence: failing to install the exterior propane gas system properly; failing to close all lines from the propane system to the building before introducing gas; and failing to verify all lines from the propane system to the building were closed before leaving the site.With respect to Pro Build, the marshalling instruction set forth three specifications of negligence: failing to cap the propane gas lines within the building site; failing to shut off valves within the building to inhibit the flow of propane gas before the installation was fully complete; and failing to inspect the lines in the building to verify they were capped and in the off position.In addition to its specifications of negligence, Tamco also requested a general negligence (res ipsa loquitur) instruction.The proposed instruction provided, in relevant part:

Under the rule of general negligence, the occurrence of an injury allows you to conclude that the Defendants were negligent if the Plaintiffs prove (1) the fire was caused by fire causing materials under the exclusive control of the Defendants, and (2) the fire would not have occurred if ordinary care had been used.

The court did not submit the requested instruction.The jury returned a defense verdict, finding no negligence by either defendant.

Tamco filed a motion for a new trial, arguing the res ipsa loquitur instruction should have been given to the jury.The district court denied the motion.The district court concluded the instrumentality causing the fire was never established.The district court also concluded the evidence did not establish who had control of the unknown instrumentality.Ultimately, the district court concluded the record did not support submission of the requested instruction.Tamco timely filed this appeal.

II.

There is a lurking inconsistency in our law regarding the scrutiny applied to the district court's refusal to give a requested jury instruction.Traditionally, the refusal to give a requested instruction was reviewed for the correction of legal error.See, e.g., Weyerhaeuser Co. v. Thermogas Co.,620 N.W.2d 819, 823(Iowa2000)("We review refusals to give jury instructions for correction of errors at law.");Kuehn v. Jenkins,251 Iowa 718, 100 N.W.2d 610, 617(Iowa1960)("We have so often said that the theories of both parties to a lawsuit, so far as they are supported by substantial evidence, must be submitted, and that it is prejudicial error to fail to do so, that citation of authorities seems needless.").In State v. Piper,663 N.W.2d 894, 914(Iowa2003), overruled on other grounds byState v. Hanes,790 N.W.2d 545, 551(Iowa2010), however, the court stated "review of alleged instructional error depends on the nature of the supposed error."The Piper Court then cited two cases—one for the proposition that challenges to an instruction are reviewed for errors at law and one for the proposition that review of the refusal to give an instruction is reviewed for an abuse of discretion.SeePiper,663 N.W.2d at 914(citingState v. Walker,600 N.W.2d 606(Iowa1999), andState v. Langlet,283 N.W.2d 330(Iowa1979)).Since Piper, both standards of review have been applied.CompareDeboom v. Raining Rose, Inc.,772 N.W.2d 1, 5(Iowa2009)(stating that review is for correction of errors at law and that it is "error for a court to refuse to give a requested instruction where it correctly states the law, has application to the case, and is not stated elsewhere in the instructions"), and Banks v. Beckwith,762 N.W.2d 149, 151(Iowa2009)(analyzing failure to give res ipsa loquitur instruction for correction of errors at law), with Summy v. City of Des Moines,708 N.W.2d 333, 340(Iowa2006)("We review the related claim that the trial court should have given the defendant's requested instructions for an abuse of discretion."), Anderson v. State,692 N.W.2d 360, 363(Iowa2005)(same), and Kiesau v. Bantz,

686 N.W.2d 164, 171(Iowa2004)(same and citing Piper ).

Our court implicitly noted and attempted to reconcile the inconsistency in our case law in a recent decision:

Initially, the parties disagree on the scope of our review of a district court's refusal to give a jury instruction.Sanders maintains our review is for errors of law; the State counters that we must apply an abuse-of-discretion standard.

The State has time on its side, as a recent opinion states review of a refusal to give a jury instruction is for an abuse of discretion.SeeState v. Marin,788 N.W.2d 833, 836(Iowa2010).However, in that case, the proposed jury instruction related to an unsettled issue of law.Id. at 837.While the district court could have addressed and decided the unsettled issue, it instead chose to give a stock jury instruction.Id. at 835.The court's decision was a paradigmatic discretionary act.

Here, in contrast, Sanders did not propose anything novel.He simply asked the court to instruct the jury on the well-established doctrine of justification, based on his belief that the record contained substantial evidence to support this theory.SeeState v. Sharkey,311 N.W.2d 68, 72(Iowa1981)("[W]here the record does not contain substantial evidence of self defense the trial court is not obligated to instruct the jury on justification.").We believe that if there was substantial evidence of justification, the district court had no discretion to refuse the instruction.For that reason, we conclude our review is for errors of law.SeeState v. Rains,574 N.W.2d 904, 915(Iowa1998)(reviewing district court's refusal to submit a requested jury instruction on justification for errors of law);see alsoPexa v. Auto Owners Ins. Co.,686 N.W.2d 150, 160(Iowa2004)("[A]trial court is generally required to give a requested instruction ‘when it states a correct rule of law having application to the facts of the case.’ "(citation omitted));State v. Hartsfield,681 N.W.2d 626, 630(Iowa2004)(reviewing refusal to give spoliation instruction for errors of law, which the court characterized as "our typical review of alleged instructional error").

State v. Sanders,No. 10–0669, 2012 WL 1066487, at *2(Iowa Ct.App.Mar. 28, 2012).

As noted in Sanders, the undeniable trend in the most recent cases is to apply an abuse-of-discretion standard to the refusal to give requested instructions.Id.For example:

"We review challenges to jury instructions for correction of errors at law."State v. Frei,831 N.W.2d 70, 73(Iowa2013);see alsoIowa R. App. P. 6.907.Yet, "[w]e review the related claim that the trial court

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