Williams v. Bayers, 88-1549

• Decision Date: 25 January 1990
• Docket Number: No. 88-1549,88-1549
• Citation: 452 N.W.2d 624
• Parties: Sharon K. WILLIAMS, As Executor of the Estate of Frances Wagner, Deceased, Plaintiff-Appellant/Cross-Appellee, v. R.I. BAYERS, Defendant, and City of Davenport, A Municipal Corporation, Defendant-Appellee/Cross-Appellant.
• Court: Iowa Court of Appeals

Page 624

452 N.W.2d 624

Sharon K. WILLIAMS, As Executor of the Estate of Frances Wagner, Deceased, Plaintiff-Appellant/Cross-Appellee, v. R.I. BAYERS, Defendant and City of Davenport, A Municipal Corporation, Defendant-Appellee/Cross-Appellant.

No. 88-1549.

Court of Appeals of Iowa.

Jan. 25, 1990.

John J. Carlin of Carlin, Hellstrom & Bittner, Davenport, for plaintiff-appellant/cross-appellee.

Michael J. Meloy, Davenport City Atty., for defendant-appellee/cross-appellant.

Heard by SCHLEGEL, P.J., and HAYDEN and SACKETT, JJ.

HAYDEN, Judge.

Frances Wagner and her sister went to their standing Tuesday morning appointment at Bev's Beauty Boutique. After a wash and set, they began to descend the three flights of steps to the ground floor. In between the third and second floor, Wagner fell. After a hospitalization of over a month, she died as a result of her injuries.

Wagner's executor sued Roy I. Bayers, the owner of the commercial building, for negligence in failing to maintain the building and in failing to warn of inherent defects. She also sued the City of Davenport, alleging negligence in failing to make proper inspections of the building and in failing to require compliance with provisions of the municipal building code.

Prior to trial, the Wagner's executor settled with Bayers for $50,000. The building owner was dismissed from the case. Trial then proceeded against the City of Davenport (City) alone.

In its answer to plaintiff's petition, the City raised as an affirmative defense Iowa Code section 613A.4, which allegedly bars plaintiff's lawsuit against the municipality.

The issue of the City's immunity was raised again in the City's motion for summary judgment and its motion for adjudication of law points, both of which were denied. A motion for directed verdict based on section 613A.4 was made at the close of plaintiff's evidence and the close of all the evidence. Both were denied.

During closing arguments to the jury, plaintiff's attorney, in his rebuttal, told the jury Bayers had been released from the lawsuit. The attorney further stated he didn't feel defendant Bayers had done anything wrong. No mention was made at any time of the $50,000 settlement.

The jury returned a verdict finding the plaintiff's decedent 50% at fault, the City 50% at fault, and Bayers 0% at fault. The jury assessed total damages at $109,700, which was the exact amount of Frances Wagner's medical bills.

However, following this verdict the district court granted the City a new trial. The district court concluded the City had been prejudiced by the closing comment made by plaintiff's attorney. The court also concluded the attorney's comment was so clearly improper a new trial was warranted even though no objection was made at the time. In addition, the court suggested had it not granted the defendant City a new trial, it would have granted the plaintiff a new trial on the issue of damages. The court commented that in a wrongful death action, damages limited to medical expenses are inadequate as a matter of law.

The plaintiff has appealed from the district court order granting the defendant City a new trial. The plaintiff contends the closing argument comment was not improper and did not warrant a new trial. The plaintiff also contends a new trial was improper where the City made no objection at the time of the comment.

Although the plaintiff originally argued the trial court erred in failing to grant the plaintiff's motion for new trial on the issue of damages, that issue has since been withdrawn by plaintiff's motion and an order dated October 23, 1989.

The defendant City has filed a notice of cross-appeal. The City contends the plaintiff's lawsuit should have been barred by Iowa Code section 613A.4(10), which bars a claim against a municipality "if the damage was caused by a third party, event, or property not under the supervision or control of the municipality," with exceptions not relevant here.

We reverse the trial court's order on the City's cross-appeal and dismiss the lawsuit.

1. The City's Immunity. The City repeatedly raised the issue of immunity from liability pursuant to Iowa Code section 613A.4(10). Chapter 613A, the Tort Liability of...