kimberly-ann-sallee-individually-and-as-next-friend-of-lucas-gregory ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0734
Filed April 22, 2015
KIMBERLY ANN SALLEE, Individually and
as Next Friend of LUCAS GREGORY DURKOP,
MARIA CHRISTINA RIVERA, and MATTHEW JAMES SALLEE;
and JAMES ALLAN SALLEE,
Plaintiffs-Appellants,
vs.
MATTHEW R. STEWART and DIANA STEWART,
d/b/a STEWARTLAND HOLSTEINS,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, John J.
Bauercamper, Judge.
Kimberly Ann Sallee appeals from an adverse jury verdict asserting the
district court erred in several respects. AFFIRMED.
D. Raymond Walton of Beecher Law Offices, Waterloo, for appellants.
Karla J. Shea of McCoy, Riley & Shea, P.L.C., Waterloo, for appellees.
Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
2
DOYLE, J.
Kimberly Ann Sallee1 appeals from an adverse jury verdict. She asserts
the district court erred in failing to direct a verdict on the issue of the defendants’
negligence in her favor or grant her motion for judgment notwithstanding the
verdict. She also asserts the court made instructional errors. Finally she asserts
the district court erred in denying her motion for new trial. We affirm.
I. Background Facts and Proceedings
While accompanying kindergarten students on a field trip to a dairy farm,
chaperone Kimberly Ann Sallee was injured when she fell through a hole in the
floor of a hayloft. Sallee filed a negligence suit against the dairy farm’s owners,
Matthew and Diana Stewart. The Iowa Supreme Court’s opinion, on further
review of the district court’s summary judgment ruling, sets forth the factual
background of this case as follows:
Matthew and Diana Stewart own a dairy farm in Fayette County.
Although the Stewarts do not routinely open their farm to the public,
classes or individuals wishing to view the farm can schedule a visit.
These groups are always accompanied by a member of the Stewart
family. If visitors arrive at the farm without a scheduled
appointment, they are only permitted to tour the farm if
accompanied by the Stewarts.
The kindergarteners from the Sacred Heart School have
been annual visitors for a number of years. During their visit, the
students learn about the typical day on a farm. The students are
usually chaperoned by their teacher, a few parents, and at least
one member of the Stewart family. The Stewarts do not permit the
students to go into cattle pens or other places where the Stewarts
believe the students might be in danger.
On May 18, 2010, Sallee accompanied her daughter’s
Sacred Heart kindergarten class on a tour of the Stewarts’ farm. As
with other visits to the farm, the field trip was scheduled in advance.
The Stewarts accompanied the students during their visit and set
1
Sallee filed this suit for damages on behalf of herself, her children, and her husband.
We refer to the plaintiffs collectively as Sallee.
3
up three stations for the students. At one station, the students rode
a horse in a round pen. At another, the students could feed a calf
with a bottle of milk. At the third station, the students could view a
tractor. Matthew supervised the entire process, and adults were
positioned at each station. Once they had rotated through each
station, the students saw several cows and a bull. The Stewarts
then guided the group to the barn to allow the students to play in
the hayloft.
Matthew asked Sallee and another chaperone to climb into
the hayloft ahead of the students so that they could assist the
students at the top of the ladder. After Sallee looked at the ladder,
Matthew reassured her it was stable enough to support her weight.
Sallee followed the other chaperone up the ladder and into the
hayloft. The children, another chaperone, the teacher, and
Matthew followed. Matthew advised Sallee to keep the students
away from the hole in the floor where the ladder was located and
warned the students not to climb too high on the bales of hay piled
to one side of the loft. While in the hayloft, the children ran around
and climbed on the hay bales.
The Stewarts never advised Sallee as to the presence of
several hay drops, rectangular holes in the floor of the hayloft
through which hay can be thrown to the animals below. Ordinarily,
the Stewarts stack bales of hay across the holes when they are not
in use to insulate the lower part of the barn. Prior to the class’s
arrival, Matthew inspected the hayloft and stood on the bales of hay
covering the holes to make sure they would support his weight.
However, while Sallee was standing on top of a bale covering one
of the holes, the bale gave way. Sallee fell through the hole,
breaking her wrist and leg.
Sallee v. Stewart, 827 N.W.2d 128, 131-32 (Iowa 2013) (footnote omitted)
(vacating Sallee v. Stewart, No. 11-0892, 2012 WL 652039 (Iowa Ct. App. Feb.
29, 2012)).
Sallee filed suit against the Stewarts, alleging their negligence caused her
injuries. Sallee, 827 N.W.2d at 132. As an affirmative defense, the Stewarts
asserted Iowa Code chapter 461C (2009), Iowa’s recreational use statute,
shielded them from liability. Id. The Stewarts subsequently filed a motion for
summary judgment based on the recreational use statute. Id. Determining
Sallee to be a “recreational user,” the district court concluded the recreational
4
use statute barred her claim. Id. Sallee’s appeal was transferred to this court,
where a majority agreed with the district court and affirmed its summary
judgment ruling on this issue.2 Sallee, 2012 WL 652039 at *11. Dissenting in
part, one judge disagreed on this issue, concluding Sallee was present as a
chaperone and not for any recreational purpose, and therefore chapter 461C did
not apply. Id. at *13.
On further review, the supreme court concluded, “[T]he activities which
occurred in the hayloft do not constitute recreational uses under the Iowa
statute. . . . As a result, the district court erred in granting summary judgment for
the defendants based on the limited immunity provided in Iowa’s recreational use
statute.” Sallee, 827 N.W.2d. at 153. The court remanded the case to the district
court for trial.3 Id. at 154.
A jury trial took place in February 2014. The district court denied Sallee’s
motion for directed verdict on the Stewarts’ liability made at the conclusion of her
case-in-chief and also at the close of all the evidence. The jury found the
Stewarts not at fault and returned a verdict in their favor. The district court
denied Sallee’s motions for judgment notwithstanding the verdict and for new
trial. Sallee now appeals.
2
As to Sallee’s tour guide liability claims, this court reversed the district court’s grant of
summary judgment. Sallee, 2012 WL 652039 at *11. The panel was unanimous on this
issue. Id. at *13.
3
We note the legislature amended chapter 461C after the supreme court’s ruling was
issued in Sallee. See 2013 Iowa Acts ch. 128.
5
II. Motions for Directed Verdict and Judgment Notwithstanding the
Verdict
Sallee alleged the Stewarts were negligent in failing to: (1) properly
inspect the hayloft prior to the field trip; (2) safely cover or shield the hay chute
opening so that visitors would not fall through it; (3) warn Sallee of the existence
and location of the hay chute opening; and (4) direct Sallee away from the hay
chute opening. Sallee contends the district court erred in failing to direct a
verdict in her favor on the issue of the Stewarts’ negligence and in denying her
motion for judgment notwithstanding the verdict (JNOV). She argues there was
no evidence showing that Stewarts were not negligent or that their negligence
was not the cause of her injuries.
We review a district court’s denial of a motion for directed verdict or JNOV
for correction of errors at law. Iowa R. App. P. 6.907. In addressing the denial of
a directed verdict, we review the facts in the light most favorable to the party
against whom the motion was made. Iowa R. App. P. 6.904(3)(b); Dorshkind v.
Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 296 (Iowa 2013).
Because Sallee made the motion for directed verdict, we review the facts in the
light most favorable to the Stewarts. Our review also takes into consideration all
reasonable inferences that could fairly be made by the jury, regardless of
whether the evidence is contradicted. Dorshkind, 835 N.W.2d at 300. “Every
legitimate inference that reasonably may be adduced from the evidence must be
afforded the nonmoving party; and if reasonable minds can differ as to how the
issue should be resolved, a jury question is engendered.” Henkel v. R & S
Bottling Co., 323 N.W.2d 185, 187-88 (Iowa 1982). “Our role on appeal is to
6
decide ‘whether the trial court correctly determined there was sufficient evidence
to submit the issue to the jury.’” Id. (quoting Easton v. Howard, 751 N.W.2d 1, 5
(Iowa 2008)).
A motion for JNOV “is intended to allow the district court to correct any
error in denying a motion for directed verdict.” Van Sickle Constr. Co. v.
Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010). The
motion must stand on the grounds raised in the motion for directed verdict. Id.
Our role in reviewing a motion for JNOV “is to decide whether there was
sufficient evidence to justify submitting the case to the jury when viewing the
evidence in the light most favorable to the nonmoving party.” Id. “In reviewing
rulings on a motion for judgment notwithstanding the verdict, we simply ask
whether a fact question was generated.” Royal Indem. Co. v. Factory Mut. Ins.
Co., 786 N.W.2d 839, 846 (Iowa 2010). Sallee concedes success of a plaintiff’s
motion JNOV “has only been achieved in the rarest cases.”
Generally questions of fault, contributory fault, and causation are for the
jury to decide and only in exceptional cases may they be decided as a matter of
law. See Iowa R. App. P. 6.904(3)(j); Crookham v. Riley, 584 N.W.2d 258, 265
(Iowa 1998). Contrary to Sallee’s position, we do not find this to be one of those
exceptional cases.
As a part of their field trip, the kindergartners were allowed to play in the
hayloft of the Stewarts’s barn. The floor of the hayloft had a number of holes, or
chutes, through which hay could be dropped to cows in the barn below. When
not in use, the chutes were covered. Matthew testified he inspected the hayloft
the day the kindergarteners visited the farm before they arrived. As a part of his
7
inspection, he stood on the bales of hay covering the chute Sallee later fell
through to determine if the bales were sturdy and solid enough to support
someone’s weight. This chute was located near the entrance to the hayloft.
Matthew further testified he “gave specific instructions” to Sallee and Amy Posey,
the chaperones helping the children in the hayloft. In particular, Matthew testified
he “told [Sallee] exactly where to stand,” and he “didn’t expect she would
disobey.” Matthew explained “[f]alling and safety was on [his] mind” and that is
why he instructed the chaperones to keep the children in the middle of the
hayloft—away from the hay chutes. There were no chutes in the middle of the
hayloft where the children were directed to play. He testified he told Sallee, “I
want you to stay here with the children in the middle of the hayloft.”
Sallee testified Matthew cautioned her to keep the kids “back from the
doorway so . . . nobody got hurt.” Matthew did not mention the location of the
hay chutes covered with hay bales. Sallee understood she was to keep the kids
away from the doorway and in the middle of the hay loft.
In applying the above-mentioned principles and in reviewing the evidence
in a light most favorable to the Stewarts, we conclude there was sufficient
evidence to create a jury question on the issue of negligence. Accordingly, we
affirm on this issue.
III. Comparative Fault Instruction
Sallee claims the district court “erred in instructing the jury with regard to
the comparative negligence[4] of [Sallee] and/or her unreasonable failure to avoid
4
At trial, the district court specified it was instructing the jury on “comparative fault”—not
“comparative negligence.”
8
injury.” Specifically, Sallee takes issue with the following jury instructions issued
by the court:
UNREASONABLE FAILURE TO AVOID INJURY – DEFINED:
A party is required to exercise reasonable care for their own
safety. This means that, if, in the exercise of ordinary care under
the circumstances, a party could have taken some particular action
after an action of fault of another party, in order to avoid an injury,
then they are under a duty to take such action.
The jury was further instructed:
COMPARATIVE FAULT DEFENSE
The defendants claim that the plaintiff, Kimberly Ann Sallee,
was at fault in failing to exercise reasonable care for her own
safety. This ground of fault has been explained to you in other
instructions.
The defendants must prove both of these propositions:
1. The plaintiff Kimberly Ann Sallee unreasonably failed to
take action to avoid an injury in one or both of these ways:
[a] She entered the hayloft and failed to be aware of and
take action to protect herself against potential dangers in a hayloft
in light of what she knew or should have known; or
[b] She disregarded Matthew R. Stewart’s instructions
regarding where to walk and stand in the hayloft.
2. The fault of the plaintiff, Kimberly Ann Sallee, was a cause
of the damages claimed by all of the plaintiffs.
If the defendants have failed to prove either of these
propositions, the defendants have not proved their defense. If the
defendants have proved both of these propositions, then you will
assign a percentage of fault against the plaintiff and include the
plaintiff’s fault in the total percentage of fault found by you in
answering the verdict questions.
Comparative fault was defined to the jury as follows:
Damages may be caused by the fault of more than one
person. In comparing fault, you should consider all of the
surrounding circumstances as shown by the evidence, together
with the conduct of the plaintiff, Kimberly Ann Sallee, and the
defendants, and the extent of the causal relation between their
conduct and the damages claimed. You should then determine
what percentage, if any, the fault of the plaintiff, Kimberly Ann
Sallee, and the defendants contributed to the damages claimed by
the plaintiff, Kimberly Ann Sallee.
9
Sallee contends these instructions were improper in this case because
there was not “a scintilla of evidence to support giving the instructions that
embody these theories.” According to Sallee, “Allowing the Defendants to argue
[Sallee] was responsible for her own injuries, i.e. she should have known that she
was too overweight to go into a hayloft, allowed the jury to conclude that the
Stewarts were not responsible.” We note that the Stewarts never asserted or
argued Sallee was too overweight to go into the hayloft, nor did the court submit
any instructions to the jury that referred to Sallee’s weight or size.
The fact is the jury did not reach the question of comparative fault
because it answered “No” to the first question on the verdict form, “Were the
[Stewarts] at fault?” Accordingly, because the jury did not reach the issue of
comparative fault, Sallee was not prejudiced by the instructions relating to
comparative fault. See Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 157
(Iowa 2004) (“[R]eversal is not required unless the plaintiff was prejudiced by this
error.”); see also Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993) (“[P]laintiff
could not have been prejudiced by the instructions on her comparative fault. This
case was submitted to the jury on special interrogatories. The jury found that
defendants were not at fault in response to the first question on the verdict form.
Consequently, the jury did not answer the interrogatories concerning plaintiff’s
fault. Therefore, because there could be no prejudice to plaintiff, we need not
address her objection to the submission of instructions on her comparative
fault.”).
In any event, questions of comparative fault are for the jury, and it is only
in exceptional cases that they may be decided as a matter of law. See Iowa R.
10
App. P. 6.904(3)(j); Crookham, 584 N.W.2d at 265. This is not the exceptional
case. Sufficient evidence was presented on the issue of Sallee’s fault, including
evidence that Matthew Stewart had instructed Sallee to stand in the middle of the
hayloft and had told her to keep the children away from the doorway.
We find no error in the district court’s submission of the issue of
comparative fault to the jury. We therefore affirm on this issue.
IV. Medical Plan Payments
On appeal, Sallee claims the district court “erred in permitting the
defendants’ counsel to raise and argue the existence of a plan or health
insurance covering the medical bills of [Sallee].” Sallee filed a motion in limine to
exclude any reference to Medicaid payments. The Stewarts resisted, agreeing
the fact that the payor was Medicaid was not admissible, but asserted the payor
could be referred to as a “medical insurer” or a “health insurer.” At the hearing
on the motion in limine Sallee’s counsel stated he thought any mention of
insurance was prejudicial. The Stewarts’ counsel agreed that “we don’t want a
jury to know that it’s Medicaid,” but argued she could tell the jury what the
payments were and that if those sums were awarded they would be paid back to
the party that paid them, and could refer to that party as a “health insurer.”
Sallee’s counsel countered,
I think if you mention anything about health insurance, it makes it
easier for a jury to say, well, you know, she’s got her medical
payments made by insurers, so, you know, she’s not—she’s not
that bad off, the result may be a lower monetary award. I just think
there is too many problems with saying anything about a medical
insurer or a health insurer.
11
After further discussion of the subrogation issue was had between the court and
parties’ counsel, the court stated the parties had plenty of time to think about how
the subrogation instruction would be worded, and the court denied Sallee’s
motion in limine.
In making her argument on appeal, Sallee points to a statement made
during opening statements by counsel for the Stewarts. During her opening
statement, counsel for the Stewarts stated:
You’re going to hear some testimony that the $38,000 was paid that
took care of the damages, always happens, the doctor bills some
really high amount, the health insurer pays some lower amount,
and the rest is written off. So $38,000 is the amount that if you
award it in this action, has to be repaid. It’s just like any other
health insurance that they pay for you. So there is $38,000 in past
medicals.
Sallee did not object.5 Under our error preservation rules Sallee had an
obligation to raise an objection or make a motion for mistrial “at the earliest
opportunity in the progress of the case.” See State v. Milner, 571 N.W.2d 7, 12
(Iowa 1997); Carter v. Wiese Corp., 360 N.W.2d 122, 129 (Iowa Ct. App. 1984)
(error properly preserved by making a motion for mistrial immediately after
reference to insurance occurred); Randa v. U.S. Homes, Inc., 325 N.W.2d 905,
909 (Iowa Ct. App. 1982) (waiting until the close of evidence to make motion for
directed verdict did not preserve error concerning the introduction of allegedly
objectionable evidence); see also Thomas A. Mayes & Anuradha Vaitheswaran,
Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55
5
During her closing statement the Stewarts’ counsel did not mention or argue that Sallee
was covered by medical insurance or a health plan. She merely stated: “Past medical
expense that were paid are $36,566.74, and the instructions make it very clear that
those have to be paid back if and only if they are awarded in this action; otherwise, they
do not have to be paid back.”
12
Drake L. Rev. 39, 64 (2006) (“[A] party claiming opposing counsel has committed
misconduct, or improperly introduced evidence concerning insurance coverage
. . . should move immediately for mistrial.”). Sallee failed to immediately object to
counsel’s opening statement comment, nor did she bring the issue to the court’s
attention at the conclusion of the opening statement. And although it would have
been too late to do so, Sallee failed to raise the issue during the motions made at
the conclusion of the plaintiff’s case-in-chief. Although it would have been too
late to do so, Sallee did not raise the issue during motions made at the close of
evidence. Waiting to raise the issue concerning the mention of allegedly
objectionable evidence until making a motion for new trial did not preserve error
on this issue for our review.
The parties’ counsel did have an agreement that the amount billed and the
amount paid would be stipulated. Sallee’s trial exhibit 18, a compilation of
Sallee’s medical bills, shows the amounts billed and the amounts paid. Payors of
the amounts paid are not reflected on the exhibit. The fact that a portion of
Sallee’s medical bills were paid by Medicaid was not mentioned at trial, either
through testimony or by exhibit.
Sallee objected to the court submitting the following instruction to the jury:
MEDICAL EXPENSES PAID
$36,566.74 of plaintiff Kimberly Ann Sallee’s past medical
expenses claimed as damages were paid by her medical plan, and
the medical plan is “subrogated” to the plaintiff’s recovery, if any,
from the defendants in this case. The “subrogation’’ provisions of
the medical plan require the plaintiff to repay these past medical
payments to the medical plan out of any damages you may award
to her for past medical expenses in this case. However, Kimberly
Ann Sallee is not required to reimburse her medical plan in any
amount over and above her past medical expense verdict award in
this lawsuit.
13
The existence of the medical plan payments should not
cause you to find either for or against the plaintiff, nor should it
cause you to either increase or reduce any amount of damages you
may award to the plaintiff. There are questions on the verdict form
for you to answer if you award damages to the plaintiff.
Sallee’s counsel argued the instruction should not be given “for the reasons that
it references subrogation, medical plan, which we think the jury will likely interpret
it as insurance, and we do not believe that that’s appropriate to give under the
law or evidence of this case.” In discussing the instruction, he further stated,
“And I have no objections if the court wants to change the instructions such that
the court can include in there that the difference between what was billed and
what was paid was written off, and that what has been paid will have to be paid
back.” On appeal, Sallee contends the jury should not have been instructed that
her medical bills were paid by a “medical plan.”
The jury did not reach the issue of damages, so Sallee was not prejudiced
by the challenged instruction. See Pexa, 686 N.W.2d at 157; see also Gore v.
Smith, 464 N.W.2d 865, 868 (Iowa 1991) (holding any alleged error in a damage
instruction could not have prejudiced the plaintiff because the plaintiff had failed
to establish the liability of the defendants). We therefore affirm on this issue.
V. Negligent Misrepresentation Instruction
Sallee contends the district court “erred in failing to submit to the jury [her
proposed] instruction on the defendants’ negligent misrepresentations resulting in
physical injury and their negligent performance of a gratuitous undertaking.” 6
“[W]e review a claim that a district court should have given a party’s requested
6
We note that at the conclusion of Sallee’s case-in-chief the district court granted
Stewarts’s motion for a directed verdict on Sallee’s negligent misrepresentation theory.
14
instruction for an abuse of discretion.” Giza v. BNSF Ry. Co., 843 N.W.2d 713,
719 (Iowa 2014). There are several flaws to Sallee’s claim.
The Restatement (Second) of Torts defines negligent misrepresentation,
in pertinent part, as follows:
One who, in the course of his business, profession, or other
employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the guidance of
others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the
information, if he fails to exercise reasonable care or competence in
obtaining or communicating the information.
Restatement (Second) of Torts § 552, at 126-27 (1977).
As the Iowa Supreme Court has reiterated, “only those who are in the
business of supplying information to others can be liable for negligent
misrepresentation.” Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 111
(Iowa 2012) (citation and internal quotation marks omitted); see also Freeman v.
Ernst & Young, 516 N.W.2d 835, 838 (Iowa 1994). Sallee does not claim the
Stewarts were in the business of providing information to others.
Instead, Sallee asks us to address her claim under section 311 of the
Restatement (Second) of Torts, which provides:
(1) One who negligently gives false information to another is
subject to liability for physical harm caused by action taken by the
other in reasonable reliance upon such information, where such
harm results
(a) to the other, or
(b) to such third persons as the actor should expect to be put
in peril by the action taken.
(2) Such negligence may consist of failure to exercise
reasonable care
(a) in ascertaining the accuracy of the information, or
(b) in the manner in which it is communicated.
15
Restatement (Second) of Torts § 311, at 106. This section has been mentioned
in only a few Iowa cases. Its use as a basis for liability was approved by the
Iowa Supreme Court in Freese v. Lemmon, 210 N.W.2d 576, 580 (Iowa 1973),
but the Freese court’s application of it as a basis for liability against a physician
was overruled in Schmidt v. Mahoney, 659 N.W.2d 552, (Iowa 2003). And
although it does not appear section 311 has been rejected as a basis for liability
in Iowa, see Kolbe v. State, 661 N.W.2d 142, 148 (Iowa 2003), we find no abuse
of discretion in the district court’s refusal to instruct the jury on the theory in this
case because Sallee failed to show any representations by the Stewarts were
proved to be “false information.”
In this regard, Sallee claims that she, while attending a tour of the
Stewarts’s farm, could reasonably “believe the farm, including the hayloft, would
be safe for them and rely on this implied representation by the Stewarts which
proved to be false.” Sallee also points to Matthew Stewart’s statement to her
regarding the stability of the ladder, and claims his assurance that the ladder
would hold her “expressly guarantee[d] the safety of the hayloft itself.” In other
words, although Sallee does not cite any false information provided to her by the
Stewarts, she asks us to infer from the fact that they did not stop her from going
into the hayloft that it was safe for her to do so. We decline Sallee’s invitation.
“[A] court is required to give a requested instruction when it states a
correct rule of law having application to the facts of the case and when the
concept is not otherwise embodied in other instructions.” Summy v. City of Des
Moines, 708 N.W.2d 333, 340 (Iowa 2006) (quotation marks and citation
omitted). Because the Stewarts did not provide false information to Sallee, the
16
district court was within its discretion to decline to instruct the jury on negligent
misrepresentation. We affirm on this issue.
VI. Tour Guide Liability Instruction
Sallee also takes issue with the district court’s failure to instruct the jury on
the theory of “tour guide” liability. The Sallee’s proposed instruction on the tour
guide liability theory provides, in part:
3. The Stewarts were negligent in the performance of their
duties as tour guides in the following particulars:
a. Failing to properly inspect the hayloft where Kimberly fell
through to determine its unsafe condition, or
b. Failing to properly cover the hole that Kimberly fell
through, or
c. Failing to properly fence off the area where the hole
existed, or
d. Failing to warn her of the hole’s existence, or
e. Failing to direct her away from the hole . . . .
The court acknowledged Sallee’s request for such an instruction, but declined to
give the instruction, explaining:
[T]he additional theory of fault requested by the plaintiff on
negligent performance of an undertaking, previously referred to by
counsel as the tour guide theory, is essentially a duplication of
plaintiff’s fault claim, relying on the same basic duties and the same
breaches of those duties and the same specifications of
negligence, and it would be confusing to the jury and not helpful or
necessary for the submission of the plaintiff’s claim.
The court’s marshalling instruction provided, in part:
3. The defendants were at fault due to negligence in one or
more of the following particulars:
a. failing to properly inspect the hayloft prior to the field trip;
b. failing to safely cover or shield the hay chute opening so
that visitors would not fall through it;
c. failing to warn Kimberly Ann Sallee of the existence and
location of the hay chute opening.
d. failing to direct Kimberly Ann Sallee away from the hay
chute opening.
17
Sallee’s tour-guide-liability instruction virtually mirrors the court’s marshalling
instruction.
“If the concept behind the requested instruction is embodied in other
instructions, the district court may properly reject the proposed instruction.”
Crawford v. Yotty, 828 N.W.2d 295, 298 (Iowa 2013) (citation and internal
quotation marks omitted). Because Sallee’s requested instruction was
“embodied in other instructions” submitted to the jury, the district court did not
abuse its discretion in declining to instruct the jury on tour guide liability. See id.;
see also Summy, 708 N.W.2d at 340. We affirm on this issue.
VII. Motion for New Trial
Sallee asks this court to grant her a new trial “on the basis of all [the]
grounds” raised in her appellate brief. Having decided all of those issues against
Sallee, we conclude the district court properly denied Sallee’s motion for new
trial. We affirm on this issue.
VIII. Conclusion
Upon our review of all the issues raised by Sallee on appeal, we affirm the
district court’s order denying her motions for directed verdict, for judgment
notwithstanding the verdict, and for new trial.
AFFIRMED.