Vasconez v. Mills

• Decision Date: 05 September 2002
• Docket Number: No. 00-1821.,00-1821.
• Citation: 651 N.W.2d 48
• Parties: J. David VASCONEZ, Appellee, v. Judy Ann MILLS and Audie Mills, Appellants.
• Court: Iowa Supreme Court

651 N.W.2d 48

J. David VASCONEZ, Appellee, v. Judy Ann MILLS and Audie Mills, Appellants.

No. 00-1821.

Supreme Court of Iowa.

September 5, 2002.

John T. McCoy of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellants.

Edward J. Gallagher, Jr., and E.J. Gallagher, III, of Gallagher, Langlas & Gallagher, Waterloo, for appellee.

NEUMAN, Justice.

This is an appeal from a judgment for the plaintiff in a suit for injuries sustained by a bicyclist who was struck by a truck while riding on a rural blacktop road. On appeal the defendant truck driver contends the court erred when it refused to submit jury instructions on comparative fault and the "sudden emergency" doctrine. Defendant also contests adverse rulings on two evidentiary objections. Finding no error warranting reversal, we affirm the judgment entered on the jury's verdict.

I. Background Facts and Proceedings.

A jury could have found the following facts. At approximately 6:30 p.m. on September 9, 1997, plaintiff David Vasconez was riding his bicycle in a westerly direction on D35, a county highway two miles east of Hudson, Iowa. It was clear and sunny. There was little traffic, even though the route served temporarily as a detour for Highway 63. Vasconez, an experienced cyclist, wore a helmet and traveled along the right side of the road within a foot of the pavement's edge. The road's narrow shoulder was unpaved.

Also proceeding westerly on D35 was the defendant, Judy Mills, a contract driver for the U.S. Postal Service. Mills' vehicle was a ten thousand pound straight truck loaded with 1200 pounds of mail. Because she was heading into the setting sun, she wore sunglasses and pulled down her windshield visor to block the sun's rays as best she could. As Mills came over a slight rise she was partially blinded by the sun's glare but could see the center of the pavement. She continued to drive at the posted speed limit of 55 miles per hour as she knew from experience that the sun's effect would be only temporary. Suddenly she heard a "thump" and, looking in her rear-view mirror, saw Vasconez heading over the handlebars of his bicycle into the ditch. She immediately pulled over to check on Vasconez and then drove to a nearby farmhouse to call for help.

Mills told the residents at the farmhouse as well as the officer who investigated the accident that she had been blinded by the sun and had not seen Vasconez before she hit him. For his part, Vasconez has no independent recollection of the event. Evidently due to the mild concussion he suffered, he recalls only that he "came to" sometime later in the hospital feeling as though he had been "hit by a truck."

At the time of the accident, Vasconez—then twenty-six years old—was employed as a fifth grade teacher in Marshalltown. He was hospitalized for two days for physical injuries sustained in the accident—a fractured collarbone, substantial bruising to his left arm, elbow and buttocks, as well as the concussion—and remained home from work for approximately two weeks. Only upon his return to the classroom did the full impact of the collision reveal itself. Fluent in two languages as well as an accomplished musician, Vasconez suddenly found himself unable to speak clearly, recall students' names or organize lesson plans. Formerly affable and easygoing, he became irritable and prone to temper outbursts. Doctors diagnosed his problems with memory, concentration, fatigue, frustration and slurred speech as symptomatic of a closed head injury.

Vasconez brought suit against Mills for personal injuries suffered as a result of her alleged negligent driving. At trial the parties' dispute centered on two main issues: (1) whether Mills' liability for failure to keep a proper lookout should be reduced by fault attributable to Vasconez or excused due to the effect of blinding rays of the sun and, (2) the scope and permanency of Vasconez' closed head injury. Over Mills' objection, the court refused to instruct the jury on the doctrines of comparative fault or sudden emergency, finding no basis in the record to support their submission. The jury returned a verdict for Vasconez totaling $415,651, and this appeal by Mills followed.

Further facts will be detailed as they pertain to the issues on appeal. The parties agree that our appellate review is limited to the correction of errors at law. Iowa R.App. P. 6.4.

II. Issues on Appeal.

A. Comparative fault.

Mills argued at trial and contends on appeal that she was entitled to instructions that would permit the jury to apportion fault against Vasconez both for his alleged "negligen[ce] in the operation of his bicycle" and for his failure to mitigate damages. See Iowa Code § 668.1(1) (1999) (defining fault to include "an unreasonable failure to avoid an injury or to mitigate damages"). The district court rejected Mills' contentions, convinced that the evidence, when viewed in the light most favorable to the defendant, did not warrant submission of comparative fault instructions. For the reasons that follow, we agree with the district court.

1. Liability.

Parties are entitled to have their legal theories submitted to the jury so long as the instructions embodying those theories correctly state the law, have application to the case and are not otherwise covered in the court's instructions. Vaughan v. Must, Inc., 542 N.W.2d 533, 539 (Iowa 1996). Proposed instructions must enjoy support in the pleadings and substantial evidence in the record. Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999). Evidence is substantial if a reasonable person would accept it as adequate to reach a conclusion. Id. It is axiomatic that if, at the close of all the evidence, the record is insufficient to support a party's theory of recovery or defense, the court need not submit the theory to the jury and may direct a verdict on the issue as a matter of law. Swift v. Petersen, 240 Iowa 715, 721-22, 37 N.W.2d 258, 261 (1949).

The instructions proposed by Mills would have advised the jury that a bicyclist is obligated to maintain a proper lookout and, in determining fault, the jury could consider the fact that the bicyclist was voluntarily performing an activity "which he knows involves a risk." Mills argues such instructions were justified here based on testimony elicited from Vasconez and one of his close bicycling companions. Both men acknowledged that, in general, a reasonable bicyclist would be alert to traffic approaching from the rear. They likewise agreed that safe bicycling includes consideration of adverse weather conditions, the width of the roadway, and the speed and number of motorized vehicles traveling the same route.

The weakness in Mills' argument is that, apart from these witnesses' generalized observations, the record contains absolutely no proof that the accident in question resulted from Vasconez' failure to keep a proper lookout or otherwise avoid foreseeable harm. Mills' own testimony confirmed her belief that Vasconez did nothing wrong to cause this accident. She simply did not see him, an arguably clear breach of her duty of lookout. See McCoy v. Miller, 257 Iowa 1151, 1157, 136 N.W.2d 332, 336 (1965) (driver's duty of proper lookout "implies being watchful of the movements of the driver's own vehicle in relation to the things seen and which could have been discerned or seen in the exercise of ordinary care"). As for Vasconez' duty of lookout to the rear, the law imposed on him "only sufficient observation to establish an awareness of the presence of others at a time when a maneuver is contemplated which may endanger a following vehicle." Id. at 1157, 136 N.W.2d at 336 (emphasis added). The record contains not the slightest hint that Vasconez turned, swerved or executed any other maneuver prior to Mills' collision with his bicycle. Thus the court committed no error when it deemed the evidence insufficient as a matter of law to engender a jury question on the plaintiff's alleged breach of his duty of lookout.

Two other fundamental principles defeat Mills' alternative ground for the submission of a comparative fault instruction. By statute, a bicyclist in Iowa is subject to the rules of the road and "has all the rights and duties ... applicable to the driver of a vehicle." Iowa Code § 321.234(2). Mills attempts to fault Vasconez for riding on a county road instead of a bike path, riding alone (thereby reducing his visibility), and riding in a westerly direction near sunset. However none of this conduct is illegal. And ascribing negligence to such choices would be ludicrous if applied to any other motorist. Given the legislative policy implicit in section 321.234(2), we find no basis for the claim that such choices constitute negligence for a bicyclist.

Second, Vasconez was entitled to assume that others using the road would obey the law until the circumstances reasonably revealed otherwise. Iowa R.App. P. 6.14(6)(i). Under the law, Vasconez was entitled to assume that a vehicle approaching him from behind would see him and respond appropriately. Mills testified that there were no vehicles coming toward her in the opposite lane that would have impeded her ability to easily pass Vasconez, had she seen him. Under these facts, Vasconez had no reason—or duty—to take evasive action.

The district court aptly summed up the record and the law this way:

The only evidence is that plaintiff was riding a bicycle on a road and that's all. There is no evidence that the plaintiff did anything other than ride his bike on a sunny day in a westerly direction. That, to me, does not present substantial evidence on which to base [a] comparative fault instruction with respect to liability.

We agree with the court's conclusion and, accordingly, reject Mills' claim for reversal on this ground.

2. Mitigation of damages.

Much of the evidence at trial centered on Vasconez' success (or lack thereof) in coping with his disabling head injury. Testimony revealed that physicians treated him with various...