Brenda J. Alcala v. Marriott International, Inc. and Courtyard Management Corporation D/B/A Quad Cities Courtyard by Marriott , 880 N.W.2d 699 ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 14–1058
Filed June 10, 2016
BRENDA J. ALCALA,
Appellee,
vs.
MARRIOTT INTERNATIONAL, INC. and COURTYARD MANAGEMENT
CORPORATION d/b/a QUAD CITIES COURTYARD BY MARRIOTT,
Appellants.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Mark J.
Smith, Judge.
A personal injury plaintiff seeks further review of court of appeals
decision ordering a new trial on her premises liability claims. DECISION
OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
REVERSED AND CASE REMANDED FOR NEW TRIAL.
Mark McCormick of Belin McCormick, P.C., Des Moines, for
appellants.
Michael K. Bush of Bush, Motto, Creen, Koury & Halligan, P.L.C.,
Davenport, for appellee.
2
WATERMAN, Justice.
We must decide whether a new trial is required in this premises
liability action. Brenda Alcala, a business guest at the Courtyard by
Marriott1 in Bettendorf, slipped and fell on its icy sidewalk, breaking her
ankle. The jury found Marriott ninety-eight percent at fault and Alcala
two percent at fault and awarded her damages of $1.2 million. The court
of appeals concluded the district court’s jury instructions were erroneous
and ordered a new trial. The court of appeals held the district court
abused its discretion by denying Marriott’s requested jury instruction on
the continuing-storm doctrine, erred by submitting a negligent-training
theory without substantial evidence, and erroneously instructed the jury
on private industry safety codes. One judge dissented in part,
concluding the district court correctly declined to instruct on the
continuing-storm doctrine based on the lack of evidence of the requisite
storm. The dissent invited our court to clarify whether our standard of
review for rulings declining requested instructions is for abuse of
discretion or correction of errors at law. We granted Alcala’s application
for further review.
For the reasons explained below, we conclude a new trial is
required. We hold that our standard of review for rulings denying a
requested jury instruction is for correction of errors at law. We conclude
the district court erred by submitting a negligent-training theory without
evidence of the standard of care for training employees on deicing or
breach of that standard. Because the jury returned a general verdict, a
new trial is required. A new trial is also required because the district
1Appellants are Marriott International, Inc. and Courtyard Management
Corporation, doing business as Quad Cities Courtyard by Marriott. We refer to the
appellants collectively as Marriott.
3
court, over conflicting expert testimony, erroneously instructed the jury
that an icy walkway violated a private safety code governing slip-resistant
construction materials. We decline to decide the applicability of the
continuing-storm doctrine. On remand, the parties and district court
may address whether the doctrine should be abandoned in light of our
adoption of section 7 of the Restatement (Third) of Torts, Liability for
Emotional and Physical Harm. We vacate the opinion of the court of
appeals, reverse the district court judgment, and remand the case for a
new trial consistent with this opinion.
I. Background Facts and Proceedings.
Alcala, a software consultant, often traveled away from her Texas
office and visited clients that were implementing new software. Alcala
made these in-person visits so that she could assist clients with final
tests and troubleshooting. On January 18, 2010, Alcala arrived in
Bettendorf on one such business trip, intending to spend an entire
workweek with the client before returning to Texas. She checked into the
Courtyard by Marriott in Bettendorf, a few blocks from the office where
Alcala would be working. Just before 8 a.m. on January 21, Alcala
slipped and fell while exiting the hotel en route to her client’s office,
breaking her ankle.
In January 2012, Alcala filed suit against the defendants, alleging
Marriott negligently caused her injuries because it allowed ice to
accumulate on its outdoor walkways, failed to maintain safe premises,
failed to properly train their employees responsible for addressing icy
sidewalks, and failed to warn guests of the dangerous condition. The
case proceeded to trial in February 2014.
A. The Weather. An official weather recap encompassing a broad
thirteen-county portion of eastern and southeastern Iowa described “an
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ice storm over much of eastern Iowa . . . with widespread ice
accumulations of ¼ to ½ inch” that occurred on January 20. The recap
did not mention anything about conditions in that thirteen-county area
on January 21, the day Alcala fell.
Witnesses at trial testified about the weather on the morning of
January 21. The Marriott restaurant employee who attended to Alcala
immediately after her fall testified “it was bad that morning” but stated
she had no difficulty entering the building when she arrived for her shift
at 5:15 a.m. and it was not raining or misting at the time Alcala fell
nearly three hours later. The employee staffing the front desk recalled no
mist at the time Alcala fell. The hotel manager on duty at the time
stated, “It was very gray, and I know there was a lot of moisture.” One of
the paramedics who responded to the 911 call acknowledged “it was
rough conditions out.” The other paramedic confirmed “there was some
bad weather,” “it was quite icy,” and “[t]here had been an ice storm” but
could not remember precise details. The on-call physician who treated
Alcala at the hospital after her fall explained that on his morning
commute, sidewalks and roads were slick and icy and “there were
accidents all over town.” Alcala’s contact with her Bettendorf client
testified “the weather conditions were not good” and affirmed “everyone
in the Quad Cities was dealing with the effects of th[e] storm that
morning.”
When asked if she recalled the weather on January 21, Alcala’s
client contact testified, “We had some freezing rain” without quantifying
the precipitation or specifying when it occurred in relation to Alcala’s
injury. A paramedic testified generally that “[t]here was a storm that
morning.” A restaurant employee testified, “[W]e had just had, like, one
of those freak ice storm things.” However, she further testified she
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“believe[d]” the freak ice storm went “into the morning hours as well.”
She acknowledged that “the weather may have been kind of waxing and
waning that morning, as it often does during storms.” Marriott witness
Margaret DePaepe, the maintenance employee responsible for exterior
walkways during the overnight shift, testified that whatever precipitation
occurred “was slowing down” when her shift ended around 6 a.m. on
January 21 and that any precipitation “had pretty much stopped” by
5:40 a.m.
Certified weather records from the National Climatic Data Center
show mist and freezing rain at the Quad City International Airport in
nearby Moline, Illinois—about eight miles south of the Marriott—
beginning on the morning of January 20. The records show freezing rain
last fell at the airport around 6 p.m. that day, while mist was virtually
continuous throughout the day and into the night. About half an inch of
precipitation accumulated that day, with only trace amounts accruing
after 3 p.m. and the last trace accumulating no later than 7 p.m. Mist
continued overnight and into the morning of January 21, ending around
noon. However, there were no new accumulations, even in trace
amounts. Ambient temperatures fluctuated slightly, reaching thirty-four
degrees Fahrenheit by 2:15 a.m. on January 21 but decreasing to thirty-
two degrees by 7:52 a.m. Overall data shows 0.53 inches of precipitation
accumulating on January 20, with no accumulation after 7 p.m. on that
day or at any point on January 21.2
Data from the Davenport Municipal Airport, about eight miles
northwest of the Marriott, provides less detail. Unlike the Moline data,
2The records list total precipitation as “0.00” for January 21. In context, this
does not include even trace amounts because other dates in January show total
precipitation as “T,” standing for “trace.”
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the Davenport data does not display a log of observations by hour.
Rather, it is a daily summary. On January 20, the Davenport data
reflects 0.32 inches of precipitation with “fog or mist” and “freezing rain
or drizzle.” On January 21, it reflects trace amounts of precipitation, the
same two conditions and an additional condition of “smoke or haze”—but
because the data is a twenty-four-hour summary, it contains no specific
timeline for these observations.
B. Training of Marriott Employees. No witness testified as to
the standard of practice for training employees on deicing walkways or
what employees should be taught on that subject. DePaepe testified
about her protocol for clearing ice and snow during a shift:
Q. Why don’t you tell the jury what your procedures
are for shoveling and salting throughout your shift. A. We
just go outside and take a bucket of salt, and then we—take,
at the time, a water thing.
Q. Like a pitcher, a scooper? A. It was a water
pitcher. And we just sprinkled it everywhere that we could
possibly find the ice.
Q. Okay. Now, if there’s snow or if there’s ice, as it’s
falling, do you just do the sprinkling, or do you shovel as
well? A. We shovel as best we could.
Q. And when you do shovel, do you do that before or
after the saltings? A. Before, and then we put the salt
down.
Q. So you try to get as much stuff out of the way and
then you sprinkle salt on it? A. Yes.
....
Q. When you’re out there salting throughout the
night, are you checking your own work? Are you walking
over the areas that you’re salting? A. We check our own
work.
Q. Okay. So you’re sprinkling and you’re walking
behind it; is that right? A. Yes.
Q. Now, what if you’re walking, walking as you’re
sprinkling, walking back to put your salt and materials back
in the shed, what if you notice a slick spot? A. Then we put
more . . . salt and we take care of that spot as soon as
possible.
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....
Q. So you have a standard operating procedure of
going out at least three times in your shift and walking the
premises and inspecting and shoveling and salting if
necessary. A. Yes.
DePaepe added that no supervisor ever told her to limit the quantities of
deicer used on exterior walkways.
On cross-examination, DePaepe elaborated on the extent of her
training on snow and ice removal techniques:
Q. When you were trained by Marriott, did you have
an understanding that if people did not properly attend to
the outside sidewalk, if there was, say, an ice storm and the
sidewalk became slippery, that it could become dangerous
for people to walk on it? A. Yes.
Q. You were trained about that? A. Yes.
Q. That was important to you? A. Yes.
....
Q. How long were you taught that either salt or de-
icing compound could be on that sidewalk before it would
become inert and not effective? Were you ever taught that?
A. Hum-um.
Q. Is that a no? A. No.
Q. All right. Were you ever taught that you have to be
concerned that simply spreading salt would simply melt the
ice and it might refreeze? A. Yes.
Q. And if it refroze, you would have to actually use a
shovel, true? A. Yes.
Alcala’s counsel asked DePaepe to comment on a copy of Marriott’s
training materials:
Q. Do you recognize this [document entitled] outdoor
safety measures? A. No.
Q. This was produced by a Marriott lawyer, saying
that these are the type of training that you received. You
don’t remember seeing this? A. It’s been a while. I haven’t
seen these for a while . . . .
Q. Fair enough. It may not be fair. But would you
agree that snow and ice on an exterior sidewalk can be a
hazard? A. Yes.
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Q. And would you agree that when ice forms, it would
be important for a Marriott employee to remove it at once?
A. Yes.
Q. And if a Marriott employee didn’t do that, that
would be a problem for the customers. A. Yes.
Q. And my understanding is that when I asked you in
your deposition if you had received any specific training
whatsoever from Marriott as to the proper way to remove ice,
you just said they told us to go out there and shovel and
salt. A. Yes.
On redirect examination, DePaepe clarified the types and frequency
of training she received from Marriott:
Q. What kinds of training did you guys receive at the
Marriott? A. What we did was go through videos, and when
it gets close to the winter season, we have a meeting with all
of the house people, all of our maintenance people, I should
say, and they go through the procedures of what should . . .
be done and how it should be done.
Marriott’s counsel offered, and the court received as an exhibit, the
packaging from the deicer DePaepe testified she used:
Q. Now, you can see from this bag—it says that it
works—it has melting power down to negative 15 degrees; is
that fair? A. Yes.
Q. Okay. Now, on the back it has different things
about how to use, and the storage, it cautions you not to use
too much, tells you only to apply about a quarter cup per
square yard. Does it say anything on here about needing to
reapply every 15 minutes, every half-hour? A. No.
Q. Does it say anywhere here that this won’t work
longer than an hour and a half or two hours? A. No.
Q. Did you have any reason to believe that it
wouldn’t? A. No.
Q. Had it been working appropriately when you’d been
taking two-and-a-half to three-hour breaks in between
throughout the night? A. Yes.
DePaepe testified she observed no ice problem on the sidewalk at
those intervals. However, other witnesses contradicted her. One
paramedic who responded to the 911 call estimated the sidewalk in the
location where Alcala fell was “eight or higher” on a ten-point scale of
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slipperiness—where ten denotes “as slippery as it possibly could be”—
even though DePaepe testified she had applied deicer at approximately
5:30 a.m. that day. The paramedic further testified the fire department’s
personnel spread their own deicer on the sidewalk to allow the
paramedics sufficient traction to reach and rescue Alcala safely.
Other evidence relevant to the training of Marriott’s employees
came from the company’s operations manager for the Bettendorf
location. The manager explained each maintenance person completes a
checklist of tasks during each shift, and she affirmed DePaepe’s
statement that “standard operating procedure” under the checklist
required at least three inspections of walkways and floors during each
eight-hour shift. The operations manager further stated, “[I]t was
understood with . . . anyone working those shifts, that if it needed to be
done more often, to absolutely do it more often.” No witness testified as
to any deficiency in Marriott’s training procedures or documents.
C. Private Safety Standards. Alcala and Marriott each presented
an expert addressing industry standards for slip resistance and snow
and ice removal. Russell Kendzior testified on Alcala’s behalf about
standards promulgated or approved by the American Society for Testing
and Materials (ASTM) and the American National Standards Institute
(ANSI). He opined the standards were applicable under the
circumstances of this case even though they are voluntary, not
mandatory. Section 5.13 of ASTM Standard F1637 requires walkway
surfaces to be slip resistant under expected environmental conditions
and use, especially when conditions may be reasonably foreseeable.
Kendzior opined that the phrase “expected environmental conditions”
accommodates the notion that during some weather events it may be
impossible to provide a perfectly slip-resistant surface. Kendzior also
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discussed sections 5.7.1.1 and 5.7.1.2 of the standard, which state
exterior walkways “shall be slip resistant” and consider a slippery surface
substandard. Kendzior testified, “[B]room-finished sidewalks are the
industry standard. That’s what’s required by code. . . . [T]hey provide a
very ample degree of slip resistance when dry.” In Kendzior’s opinion,
however, an icy surface is by definition slippery and therefore
substandard under that code.
ANSI standard A1264.2, to which Kendzior also referred, provides
suggested protocols for clearing snow and ice from walkways and parking
lots. Specifically, section 10.3.1 of the standard instructs land occupiers
to use deicing compounds according to manufacturer instructions that
may include reapplication after a length of time. Kendzior read from the
ASTM and ANSI standards during his testimony while the jury viewed
them via a projector, but neither party introduced a copy of them into
evidence.
In contrast, Marriott’s expert, architect Alan Bowman, testified the
slip resistant ASTM standard applied to the finish applied to the concrete
surface, not slipperiness from snow or ice. He noted ASTM once
considered promulgating a standard for snow and ice removal but
scrapped the proposal because the organization’s members could not
agree on an appropriate global standard. Bowman testified the Marriott’s
sidewalk was constructed with broom-finished concrete that met the
ASTM standard:
Q. Now, let’s look at the cement itself. What kind of a
finish is on this concrete? A. Well, the metric that you use
in terms of sidewalk performance is its slip resistance, and
the most cost effective way to achieve slip resistance with
concrete is to broom finish it. You take a stiff bristle broom
while the concrete is, what we call, thumbprint hard, and
you drag the broom across the concrete and then let it finish
curing, and that creates a fine corduroy effect. It’s about
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l6th-of-an-inch-high grooves in the concrete. All of the
measures that I’m familiar with, ASTM standards, for
example, and the ANSI standards, consider broom-finished
concrete to be slip resistant, and that’s on the scale of,
basically, from zero, which would be just slick as glass, to
one. And broom-finished concrete, wet or dry, always ranks
between 0.5 and 0.8, so it’s considered, under wet or dry
conditions, to be a slip-resistant surface.
Q. And this was broom-finished concrete.
A. Everything, according to the Donahue site plan
documents and everything that I witnessed in a walk-around
of the Marriott facility, everything is broom-finished concrete.
Q. And that, I think, even Mr. Kendzior mentioned, is
really the standard in the industry. A. Pardon me?
Q. Mr. Kendzior mentioned that’s the standard in the
industry, broom-finished concrete. A. Yes.
Q. Now, just to make it clear, though, that means that
this surface is slip resistant wet or dry? A. Wet or dry, yes.
D. The Jury Instructions. Before submitting the case to the
jury, the parties made a record on jury instructions. Marriott sought a
jury instruction detailing the continuing-storm doctrine. This doctrine
provides that, absent unusual circumstances, a premises occupier may
“await the end of the storm and a reasonable time thereafter to remove
ice and snow from an outdoor entrance walk, platform, or steps.” Reuter
v. Iowa Tr. & Sav. Bank, 244 Iowa 939, 943, 57 N.W.2d 225, 227 (1953)
(quoting Walker v. Mem’l Hosp., 45 S.E.2d 898, 902 (Va. 1948)). Marriott
contended it was entitled to this instruction because several witnesses
testified generally that the weather was bad on the morning of January
21 and because the certified weather records from nearby locations
reflected mist that day. See Rochford v. G.K. Dev., Inc., 845 N.W.2d 715,
718 (Iowa Ct. App. 2014) (concluding the doctrine includes freezing rain,
not just blizzards). Thus, Marriott asserted the jury should decide
whether the storm was continuing when Alcala fell or, if it had ended,
whether Marriott waited a reasonable time after the storm passed to
remove the ice from the sidewalk where Alcala fell.
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The district court refused to give the instruction because it
concluded there was insufficient evidence supporting it. The district
court concluded trace precipitation and mist do not constitute a “storm”
within the plain meaning of the word or under our caselaw applying the
continuing-storm doctrine. Indeed, the district court noted the weather
records considered mist to be an obscuration like fog, not a type of
precipitation. Furthermore, the district court concluded witnesses’
general testimony that roads and sidewalks were slick and icy on the
morning of January 21, that “it was rough conditions out,” or that “the
weather conditions were not good” spoke only to the persisting effects of
the storm, not whether it was actively continuing at times relevant to this
case.
The court also overruled Marriott’s objections to two additional
instructions. First, Marriott contended the ASTM and ANSI standards
were not applicable and it was therefore inappropriate to instruct the
jury it could conclude violation of the standards was evidence of
negligence. Second, Marriott contended there was insufficient evidence
to support improper training, one of Alcala’s asserted specifications of
negligence. The district court concluded a jury instruction on industry
standards was appropriate despite the experts’ conflicting opinions on
the standards’ applicability. It also concluded DePaepe’s testimony was
substantial evidence supporting an instruction including improper
training as a specification of negligence.
Instruction No. 20, as submitted to the jury, stated,
American Safety and Testing Materials (ASTM)
Standard Practice for Safe Walking Surfaces requires exterior
walkways shall be maintained so as to provide safe walking
conditions (5.7.1). In addition, said standards require that
exterior walkways shall be slip resistant (5.7.1.1). Finally, if
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an exterior walkway is slippery, it is to be considered
substandard (5.7.1.2).
American National Standards Institute (ANSI) require
that where snow and ice exists in pedestrian walkways, safe
maintenance techniques shall include plowing, shoveling,
deicing, salting or ice melting chemicals, and sanding, as
needed (10.3.1).
You may consider a violation of these standards as
evidence of negligence.
Instruction No. 16 allocated to Alcala the burden of proving Marriott was
negligent in at least one of four ways: (1) improper training, (2)
inadequate maintenance, (3) failing to inspect the walkway, or (4) failing
to provide a slip-resistant walkway.
E. The Verdict and Appeal. The jury returned a general verdict
finding Marriott negligent without identifying which specification or
specifications of negligence Alcala proved. The jury allocated ninety-eight
percent of the fault to Marriott, two percent to Alcala, and awarded
Alcala total damages of $1.2 million for medical expenses, lost wages,
pain and suffering, and loss of bodily function. Marriott moved for
judgment notwithstanding the verdict, remittitur, or new trial, asserting
the district court erred in denying a continuing-storm instruction and in
submitting the other instructions to which Marriott objected. The
district court denied the motion.
Marriott appealed, and we transferred the case to the court of
appeals. The court of appeals ordered a new trial because it concluded
the evidence supported a continuing-storm instruction and did not
support the instructions on industry standards and improper training.
One judge dissented in part, concluding the district court correctly
refused to instruct on the continuing-storm doctrine. We granted
Alcala’s application for further review.
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II. Standard of Review.
We have said “[w]e review a court’s refusal to give an instruction
for an abuse of discretion, while we review challenges to jury instructions
for correction of errors at law.” Anderson v. State, 692 N.W.2d 360, 363
(Iowa 2005). However, this distinction is relatively recent, growing
primarily out of a 2003 decision. See State v. Piper, 663 N.W.2d 894,
914 (Iowa 2003), overruled on other grounds by State v. Hanes, 790
N.W.2d 545, 551 (Iowa 2010). In Piper, we stated “review of alleged
instructional error depends on the nature of the supposed error” and
cited a case indicating the refusal to give an inference instruction on
alleged spoliation is properly reviewed for an abuse of discretion. Id.
(citing State v. Langlet, 283 N.W.2d 330, 336 (Iowa 1979) (holding the
district court did not abuse its discretion in denying a spoliation
instruction as there was no evidence of an intent to destroy evidence)).
We conclude Langlet correctly states the standard of review of the
district court’s refusal to give an inference instruction on spoliation
because that instruction acts as a discovery sanction and discovery
sanctions are discretionary. See Hendricks v. Great Plains Supply Co.,
609 N.W.2d 486, 491 (Iowa 2000) (discussing the spoliation inference
and its remedies); Farley v. Ginther, 450 N.W.2d 853, 856 (Iowa 1990)
(noting the discretionary nature of discovery sanctions). However, the
standard of review applied in Langlet and referenced in Piper does not
extend to all refusals to give a requested jury instruction.
“Iowa law requires a court to give a requested jury instruction if it
correctly states the applicable law and is not embodied in other
instructions.” Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994); accord
Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823–24 (Iowa
2000); Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). The verb
15
“require” is mandatory and leaves no room for trial court discretion.
Thus, we clarify today that absent the discretionary component present
in Langlet, we review refusals to give a requested jury instruction for
correction of errors at law. See, e.g., DeBoom v. Raining Rose, Inc., 772
N.W.2d 1, 5, 11–14 (Iowa 2009) (reviewing multiple jury instruction
claims, including refusal to give a requested pretext instruction, for
errors at law); Koenig v. Koenig, 766 N.W.2d 635, 637 (Iowa 2009)
(reviewing a district court’s refusal to give a general negligence
instruction for errors at law); Banks v. Beckwith, 762 N.W.2d 149, 151
(Iowa 2009) (reviewing a district court’s refusal to give a res ipsa loquitur
instruction for errors at law); Pexa v. Auto Owners Ins. Co., 686 N.W.2d
150, 160 (Iowa 2004). To the extent our cases perpetuate the Piper
distinction and extend the abuse-of-discretion analysis to
nondiscretionary refusals to give requested jury instructions supported
by the evidence and applicable law, we overrule them on that issue.3
III. Analysis.
A. Negligent Training. We must decide whether the district court
erred by submitting the negligent-training theory without any testimony
on the standard of care for training or its breach. It is axiomatic that
proof of the applicable standard of care and its breach are required to
3See, e.g., State v. Guerrero Cordero, 861 N.W.2d 253, 258 (Iowa 2015); State v.
Edouard, 854 N.W.2d 421, 431 (Iowa 2014); Asher v. OB-Gyn Specialists, P.C., 846
N.W.2d 492, 496 (Iowa 2014); Hagenow v. Schmidt, 842 N.W.2d 661, 670 (Iowa 2014);
State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013); Crawford v. Yotty, 828 N.W.2d 295, 298
(Iowa 2013); State v. Becker, 818 N.W.2d 135, 140 (Iowa 2012); State v. Marin, 788
N.W.2d 833, 836 (Iowa 2010); State v. Lyman, 776 N.W.2d 865, 876 (Iowa 2010); State
v. Reynolds, 765 N.W.2d 283, 288 (Iowa 2009); Smith v. Koslow, 757 N.W.2d 677, 679–
80 (Iowa 2008); Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006); In re
Det. of Palmer, 691 N.W.2d 413, 416 (Iowa 2005); Kiesau v. Bantz, 686 N.W.2d 164, 171
(Iowa 2004). Of course, clarifying the standard of review for jury instruction challenges
does not disturb the substantive legal conclusions in these decisions.
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recover in tort. See Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa
2009) (“An actionable claim of negligence requires ‘the existence of a duty
to conform to a standard of conduct to protect others, [and] a failure to
conform to that standard . . . .’ ” (quoting Stotts v. Eveleth, 688 N.W.2d
803, 807 (Iowa 2004))). Dismissal is required when the record contains
no evidence regarding the applicable standard of care or its breach. See
Godar v. Edwards, 588 N.W.2d 701, 709–10 (Iowa 1999) (affirming
directed verdict in defendant’s favor on claims against employer for
negligent hiring, retention, and supervision); Hartig v. Francois, 562
N.W.2d 427, 430–31 (Iowa 1997) (holding defendant was entitled to
directed verdict on negligence claims based on insufficient evidence of
the standard of care or its breach); Fisher v. Dallas County, 369 N.W.2d
426, 431 (Iowa 1985) (affirming dismissal because the “record contains
no evidence regarding that standard of care” or its breach).
Marriott argues on appeal that reversal is required because “[t]he
record contains no evidence of a standard of care imposing a discrete
duty on Marriott to instruct employees about a specific period of time
that a particular deicing compound will remain effective.” Alcala argues
expert testimony was not required to establish the standard of care for
training employees on ice removal. Regardless, there must be some
evidence or testimony to support the instruction on negligent training.
No witness, lay or expert, testified that Marriott should have trained
DePaepe on the durational effectiveness of the deicer. Cf. Tomeo v.
Thomas Whitesell Constr. Co., 823 A.2d 769, 777 (N.J. 2003) (affirming
summary judgment dismissing negligent-training claim as to employee’s
use of snowblower, concluding “[n]o special training was required to be
given . . . because it is a consumer product” with adequate warnings and
instructions). No expert or lay witness testified about any shortcoming
17
in Marriott’s training or what training should be provided. Alcala argues
the jury can find Marriott breached a duty to train DePaepe by
connecting these dots: there was ice on the sidewalk; therefore, DePaepe
did not apply deicer properly; therefore, Marriott did not train her
properly. If that is sufficient, then going forward, employers could be
sued for negligent training whenever there is an avoidable accident. We
conclude that the evidence in this case was insufficient to support a
negligent-training instruction or specification of negligence.
Other courts have held that negligent-training claims fail as a
matter of law without testimony establishing the standard of practice for
training employees for the job at issue. Judge Merrick Garland recently
surveyed many such decisions in Burke v. Air Serv International, Inc., 685
F.3d 1102, 1106–07 & n.2 (D.C. Cir. 2012) (affirming summary judgment
dismissing negligent-training claim). See also Moore v. District of
Columbia, 79 F. Supp. 3d 121, 144–45 (D.D.C. 2015) (surveying
authorities and granting summary judgment dismissing negligent-
training claims). It is not enough to show the mistakes or negligent
conduct of the employee; rather, to recover against the employer under a
negligent-training theory, evidence of a specific standard of care for
training and its breach is required. See Carter v. Nat’l R.R. Passenger
Corp., 63 F. Supp. 3d 1118, 1156–57 (N.D. Cal. 2014) (granting summary
judgment dismissing negligent-training claim because “[p]laintiffs do not
link any of the evidence [of the errors of an Amtrak train engineer] to any
specific federal standard of care [for training] . . . or explain how the
evidence, if credited by the jury, would establish a violation of such a
standard”); Wimer v. State, 841 P.2d 453, 455 (Idaho Ct. App. 1992)
(affirming summary judgment dismissing claim that the state negligently
trained game officers who charged elk hunters with criminal violations;
18
concluding affidavit testimony that the “training and supervision must
have been deficient because of the manner in which this investigation
was conducted” was insufficient to support an inference based on a
“single incident standing by itself” (quoting Anderson v. City of Pocatello,
731 P.2d 171, 181 (Idaho 1986))).
In Inmon v. Crane Rental Services, Inc., the Arizona Court of Appeals
affirmed a partial summary judgment dismissing a negligent-training
claim. 67 P.3d 726, 733 (Ariz. Ct. App. 2003), overruled on other grounds
by Tarron v. Bowen Mach. & Fabricating, Inc., 235 P.3d 1030, 1036 (Ariz.
2010) (en banc). Charles Inmon and Mark Cummings, ironworkers, were
injured when a loaded crane operated by Eddie De La Torre tipped over
at their jobsite. Id. at 727–28. They sued his employer, a crane rental
company, alleging it was independently negligent in training him. Id. at
728. The plaintiff’s expert testified he “could not say that De La Torre
was improperly trained, but only that his actions did not demonstrate
proper training.” Id. at 733. The trial court granted the crane rental
company’s motion for summary judgment on that issue, noting the lack
of testimony “to indicate what training was omitted” and concluding the
“[f]ailure to demonstrate competence is not automatically a showing of
inadequate training.” Id. The appellate court agreed and rejected the
plaintiffs’ argument that the fact finder could infer negligent training,
stating, “[I]n the absence of facts specifying in what way De La Torre’s
training or lack thereof was negligent, . . . there is no evidence showing
that such negligent training was the proximate cause of Plaintiffs’
injuries.” Id. We see the same failure of proof as to Alcala’s negligent-
training claim.
Alcala cites no case from any jurisdiction upholding a recovery on a
record devoid of testimony as to the standard for training for the job at
19
issue and devoid of testimony as to how the training fell short. We hold
it was error to submit negligent training as one of the specifications of
Marriott’s negligence. The jury returned a general verdict without
specifying which grounds of fault Alcala proved. A new trial is required
after a general verdict is returned for the plaintiff if the evidence was
insufficient to submit one of several specifications of negligence. Asher v.
OB-Gyn Specialists, P.C., 846 N.W.2d 492, 497 (Iowa 2014). That is what
happened here.
B. Private Safety Codes. We conclude a new trial is also
required based on the district court’s prejudicial error in the jury
instruction on the ASTM standards. “We have on a number of occasions
found instructions that unduly emphasized certain evidence were flawed
and required reversal.” Burkhalter v. Burkhalter, 841 N.W.2d 93, 106
(Iowa 2013); see also Olson v. Prosoco, Inc., 522 N.W.2d 284, 287 (Iowa
1994) (“[E]ven instructions correctly stating the law should not give
undue emphasis to any particular theory, defense, stipulation, burden of
proof, or piece of evidence.”). The district court went beyond unduly
emphasizing certain evidence—the trial judge adopted the position of
plaintiff’s expert over conflicting testimony of the defense expert in
Instruction No. 20:
American Safety and Testing Materials (ASTM)
Standard Practice for Safe Walking Surfaces requires exterior
walkways shall be maintained so as to provide safe walking
conditions (5.7.1). In addition, said standards require that
exterior walkways shall be slip resistant (5.7.1.1). Finally, if
an exterior walkway is slippery, it is to be considered
substandard (5.7.1.2).
....
You may consider a violation of these standards as
evidence of negligence.
20
The defense expert, Bowman, testified the ASTM standard is inapplicable
to snow and ice removal and instead governs the methods and materials
used for constructing walkways. Experts for both sides agreed the type
of slip-resistant, broom-finished concrete used in the construction of
Marriott’s sidewalk complied with ASTM standards when dry. The only
reason the sidewalk was slippery was the presence of ice. Bowman
further gave uncontroverted testimony that ASTM had considered
adopting a standard for snow and ice removal but abandoned the idea
due to lack of agreement on such a standard. The existing ASTM
standards do not mention ice or snow. Yet the jury was essentially
instructed that an icy sidewalk is substandard. That is not how we
interpret the ASTM standard. Alcala cites no case from any jurisdiction
holding ASTM standard 5.7 is violated when an otherwise compliant
broom-finished concrete surface is icy, and we found no such case in our
own research.
Even assuming the expert testimony was sufficient to generate a
jury question regarding the applicability of the standard, the district
court erred by taking one side and telling the jury the standard was
violated by icy conditions. See Almonte v. Averna Vision & Robotics, Inc.,
128 F. Supp. 3d 729, 744 (W.D.N.Y. 2015) (“Usually, when there is a
factual question about the applicability of two competing industry
standards, it is for the fact-finder to determine which standard applies.”).
When experts disagree, the jury should be instructed to decide whether
the standard applies. See Rupolo v. Oshkosh Truck Corp., 749
F. Supp. 2d 31, 43 (E.D.N.Y. 2010) (“[T]he applicability of the ANSI and
OSHA standards is a factual question. . . . Accordingly, . . . it should be
for the fact-finder to determine whether [the expert’s] reliance on the
21
ANSI and OSHA standards is appropriate.”). The district court erred in
giving Instruction No. 20, and that error requires a new trial.
C. The Continuing-Storm Doctrine. The court of appeals
majority concluded Marriott was entitled to its requested instruction on
the continuing-storm doctrine. The dissenting judge concluded the
evidence was insufficient to support a jury instruction on the doctrine.
Because we have determined that the instructional errors discussed
above require a new trial, we need not decide whether the district court
erred by refusing Marriott’s requested instruction on the continuing-
storm doctrine. We recognize the issue will arise again on remand if
Marriott renews its request for an instruction on the doctrine.
We adopted the continuing-storm doctrine in Reuter. 244 Iowa at
943, 57 N.W.2d at 227. Quoting from a Virginia case, we established
the rule that a business establishment, landlord, carrier, or
other inviter, in the absence of unusual circumstances, is
permitted to await the end of the storm and a reasonable
time thereafter to remove ice and snow from an outdoor
entrance walk, platform, or steps. The general controlling
principle is that changing conditions due to the pending
storm render it inexpedient and impracticable to take earlier
effective action, and that ordinary care does not require it.
Id. (quoting Walker, 45 S.E.2d at 902).
In Rochford, the court of appeals concluded inclement winter
weather could constitute a storm even if it is not a blizzard. 845 N.W.2d
at 718. In that case, however, it was undisputed the plaintiff’s fall
occurred during freezing rainfall. See id. Thus, the holding in Rochford
does not clearly extend to mist or other precipitation leaving no
accumulation.
Iowa courts have applied the continuing-storm doctrine in a few
other cases. For example, in Wailes v. Hy-Vee, Inc., the court of appeals
concluded the district court correctly gave a jury instruction on the
22
continuing-storm doctrine when the plaintiff challenged the timing of the
defendant’s snow removal but snow was still falling when the plaintiff
was injured. 861 N.W.2d 262, 265–68 (Iowa Ct. App. 2014). We also
applied the continuing-storm doctrine and granted a defendant judgment
notwithstanding the verdict when “a trace of snow was recorded” on the
day of the plaintiff’s fall, “[i]t had been snowing off and on all morning,”
and “it was still snowing” at the time the plaintiff fell. Hovden v. City of
Decorah, 261 Iowa 624, 628, 155 N.W.2d 534, 537 (1968), superseded by
statute, 1984 Iowa Acts ch. 1002, § 1.
This court has acknowledged “[t]he feebleness of human . . . efforts
in attempting to cope with the power of the elements.” Staples v. City of
Spencer, 222 Iowa 1241, 1244, 271 N.W. 200, 202 (1937). The
continuing-storm doctrine suspends a property owner’s general duty to
exercise reasonable care in warning of or removing snow and ice hazards
until a reasonable time after the storm because continually clearing ice
and snow during an ongoing storm would be impracticable. Reuter, 244
Iowa at 943, 57 N.W.2d at 227; Mattson v. St. Luke’s Hosp. of St. Paul, 89
N.W.2d 743, 745 (Minn. 1958); Walker, 45 S.E.2d at 902.
Alcala in her application for further review argued for the first time
that the continuing-storm doctrine is no longer good law under the
Restatement (Third) of Torts, Liability for Physical and Emotional Harm.
The parties, however, did not address the impact of the Restatement
(Third) on the continuing-storm doctrine in their appellate briefs
preceding the court of appeals decision or in district court before the jury
was instructed. Neither the district court nor court of appeals addressed
whether the continuing-storm doctrine should be abandoned in light of
our adoption of section 7 of the Restatement (Third) of Torts in Thompson
in 2009. 774 N.W.2d at 834–35; cf. Crawford v. Extended Stay Am., LLC,
23
No. 2007-CA-001127-MR, 2008 WL 2610456, at *4 (Ky. Ct. App. July 3,
2008) (Acree, J., concurring) (inviting Kentucky Supreme Court to revisit
“no-duty” rule for natural snow and ice accumulations in light of section
7 of the Restatement (Third)). We prefer to wait to decide the issue with
the benefit of a district court ruling and full adversarial briefing.
Accordingly, we decline to decide it now. See Hagenow v. Schmidt, 842
N.W.2d 661, 677 (Iowa 2014) (“[N]either the parties nor the district court
raised the provisions of the Restatement (Third) when instructing the
jury in this case. We defer for another day our consideration of these
provisions . . . .”). The parties are free to brief and argue that issue on
remand and may develop a different evidentiary record on weather
conditions in the new trial.
IV. Disposition.
For the foregoing reasons, Marriott is entitled to a new trial. We
vacate the decision of the court of appeals, reverse the district court
judgment, and remand the case for a new trial consistent with this
opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED FOR NEW
TRIAL.
All justices concur except Hecht, Wiggins, and Appel, JJ., who
concur in part and dissent in part.
24
#14–1058, Alcala v. Marriott Int’l, Inc.
HECHT, Justice (concurring in part and dissenting in part).
I join Part II of the majority opinion clarifying that the scope of
review regarding refusal to give a requested jury instruction is for
correction of errors at law. Beyond that threshold question, however, the
majority and I part ways significantly. I dissent because I find no
reversible error in either of the jury instructions Marriott challenges on
appeal. I also conclude the district court correctly declined on this
record to submit the instruction proposed by Marriott on the continuing-
storm doctrine. I would vacate the decision of the court of appeals and
affirm the judgment the district court entered on the jury’s verdict.
I. Negligent Training.
The law governing this issue is well established. “In considering
whether [an] instruction is supported by substantial evidence, we give
the evidence the most favorable construction it will bear in favor of
supporting the instruction.” Asher v. OB-Gyn Specialists, P.C., 846
N.W.2d 492, 496–97 (Iowa 2014). The majority orders a new trial in part
because it concludes no testimony established the parameters of
Marriott’s duty to exercise reasonable care in training its employees on
proper approaches in removing ice from sidewalks. But Marriott
concedes it owed a duty.4 Its objection to the training specification of
4It comes as no surprise that Marriott did not deny it owed a duty to exercise
reasonable care in training its employees on the subject of removing ice from its
sidewalks. Under section 7(a) of the Restatement (Third) of Torts, an “actor ordinarily
has a duty to exercise reasonable care when the actor’s conduct creates a risk of
physical harm.” 1 Restatement (Third) of Torts: Liab. for Physical & Emotional Harm
§ 7(a), at 77 (2010) [hereinafter Restatement (Third)]; see Thompson v. Kaczinski, 774
N.W.2d 829, 835 (Iowa 2009) (adopting the Restatement (Third)’s duty framework).
“Thus, in cases involving physical harm, courts ordinarily need not concern themselves
with the existence or content of this ordinary duty. They may proceed directly to the
elements of liability . . . .” 1 Restatement (Third) § 6 cmt. f, at 69. Those four elements
of a prima facie claim for negligence are “(1) failure to exercise reasonable care;
25
negligence was instead that Alcala failed to present substantial evidence
of a breach of that duty.
Alcala did not present expert testimony on the standard of care
hotels must meet in training their employees on proper snow and ice
removal techniques or on Marriott’s breach of that duty. In my view,
however, expert testimony was not required on these subjects. “The
question of what a reasonable person would do . . . in training and
supervising employees is one permissibly resolved on the basis of the
knowledge and experience of lay persons.” Graves v. N.E. Servs., Inc.,
345 P.3d 619, 628 (Utah 2015).5
Some weather-related phenomena are clearly within a layperson’s
understanding:
_________________________
(2) factual cause; (3) physical harm; and (4) harm within the scope of liability (which
historically has been called ‘proximate cause’).” Id. § 6 cmt. b, at 67–68. Thus, Alcala
had no burden to present express testimony that Marriott owed a duty to exercise
reasonable care in training its employees on the proper methods of clearing ice from its
sidewalks.
5Although expert testimony was not required to justify submission of the issue
to the jury, it would of course have been admissible. In a 1963 slip-and-fall case where
the fall occurred on an indoor dance floor, we concluded a court properly admitted
expert testimony from those familiar with “care of waxed floors and the safe practices in
wax application thereon.” Smith v. Cedar Rapids Country Club, 255 Iowa 1199, 1210,
124 N.W.2d 557, 564 (1963). The testimony was helpful because it aided jurors in
understanding the interplay between the particular chemical used and the material
comprising the dance floor on which the injury occurred, as well as “the proper
application and slipperiness of” the floor wax. Id. at 1211, 124 N.W.2d at 564.
However, Smith does not stand for the proposition that expert testimony was required in
this case on the question whether Marriott breached its duty to train its employees
properly. First, I believe laypeople are more familiar with ice, deicer, and concrete
sidewalks than the properties of the floor wax when applied to the flooring material at
issue in that case. Second, and more importantly, we concluded in Smith only that
expert testimony was permissible, not that it was required to engender a jury question.
See id. at 1210–11, 124 N.W.2d at 564–65; accord Boham v. City of Sioux City, 567
N.W.2d 431, 437 (Iowa 1997) (concluding expert testimony about crossing guard
training was sufficient—not that it was required—to support a failure-to-train
specification of negligence).
26
We know that it is dangerous to be in or near certain
structures, or even trees, during lightning storms. We also
know that, if we are in an area of high lightning frequency,
we should be cautious, and that the height of the structures
in relation to the surrounding terrain might attract lightning.
In other words, . . . risk assessment factors [regarding
lightning damage protection] [a]re not complicated or novel
ideas or even foreign to a layperson’s understanding about
the phenomenon of lightning.
Mensink v. Am. Grain, 564 N.W.2d 376, 381 (Iowa 1997). Similarly, a
plaintiff need not present an engineer to opine that stacking logs
haphazardly might result in the pile toppling over and injuring a
bystander:
Where the construction of a given pile of timber is properly
explained, it appears to us that a jury of [people] not
especially experienced in piling timber would have no
difficulty in forming an opinion for themselves as to the
liability of the pile to fall and injure a person who should be
near it. Such work, it seems to us, does not in any proper
sense involve the mystery of technical knowledge or skill.
Baldwin v. St. Louis, Keokuk & N. Ry., 68 Iowa 37, 39, 25 N.W. 918, 919
(1885). Likewise, I would hold deicer’s durational effectiveness and
Marriott’s duty to address the subject when training its employees on
proper techniques for removing ice from sidewalks does not require
expert testimony. Information on the durational effectiveness of the
deicer Marriott used is discernable from the product manufacturer
without special knowledge, education, or expertise. Indeed, Bowman—
an expert in architecture but a layperson with respect to commercial
snow and ice removal—demonstrated his ability to discern the durational
effectiveness simply by reading available product literature. See Spencer
v. Wal-Mart Stores E., LP, 930 A.2d 881, 888–89 (Del. 2007) (noting an
architect was not “an expert on ice and snow removal”).
I now turn to the question of whether the record—when viewed in
the light most favorable to the instruction, see Asher, 846 N.W.2d at
27
496–97—includes substantial evidence of a breach of Marriott’s duty to
properly train its employees. Unlike the majority, I conclude the record
does include evidence from which the jury could find Marriott breached
its duty to exercise reasonable care in training.
The evidence on the condition of Marriott’s sidewalk and the
presence of adequate quantities of deicer is conflicting and greatly in
dispute. DePaepe testified there was already “salt all over the sidewalks”
when she arrived for her overnight shift at 10:00 p.m. on January 20.
Although a reasonable fact-finder could find on this record that there
was no new measurable precipitation during her shift, DePaepe
testified—and her nightly checklist represents—that she applied more
deicer three times during her eight hours: from 12:03 to 12:20 a.m., 2:29
to 2:59 a.m., and 5:24 to 5:40 a.m. If Bowman’s testimony that the
deicer generally remains effective for three to four hours is correct, and
DePaepe’s testimony is true, any failure to train DePaepe about
durational effectiveness of the deicer arguably did not cause Alcala’s
injury because DePaepe testified she reapplied the deicer within the
product’s durational effectiveness.
But the jury was entitled to make credibility determinations and
sort out conflicts in the evidence. DePaepe testified there was plenty of
deicer on the sidewalk both when she arrived at 10:00 p.m. on
January 20 and when she left after 6:00 a.m. on January 21. Marriott’s
operations manager testified she remembered the deicer granules
crunching under her boots as she entered the building around 7:00 a.m.
on January 21. However, other evidence tended to show that at the time
Alcala fell, the sidewalk was treacherously slick. The paramedics who
responded to the 911 call testified they “had a hard time getting to”
Alcala and “were having a hard time staying” upright themselves. One
28
even testified the sidewalk was “eight or higher” on a ten-point
slipperiness scale and that the fire department dispensed its own
chemical to provide the paramedics with better traction. Furthermore,
another witness who was a guest at the Marriott testified that when he
left the hotel just before Alcala, the sidewalk was so slippery that he
opted to walk on the adjacent grass instead to avoid falling.
A reasonable juror could infer from this conflicting evidence that
DePaepe did not apply the deicer with the frequency she claimed. A
reasonable fact finder could also find from DePaepe’s testimony that she
had not been trained on the deicer’s durational effectiveness. The jury
could find that had DePaepe been provided this information during
training or instructed to seek out such information and follow it, she
would have understood any deicer applied before 3:00 a.m. (and certainly
before 10:00 p.m. the night before) would no longer be effective after four
hours if temperatures remained around freezing. In other words, if
DePaepe’s testimony about distribution of the deicer and the condition of
the sidewalk at material times was rejected as not credible in whole or in
part, the jury could have found on this record that her failure to apply
the deicer properly was a result of Marriott’s inadequate training on the
durational effectiveness of the deicer. Put yet another way, the jury
could have found that DePaepe did not apply the deicer in a timely
fashion because she was not properly trained on its durational
effectiveness. This conclusion would require the jury to make several
inferences, but fact finders properly utilize inferences in almost every
case.
I also reject the majority’s conclusion that a jury question on
negligent training must fail because Alcala did not offer express
testimony that Marriott breached its duty to exercise reasonable care in
29
training its employees. All manner of negligence claims that do not
require expert testimony to establish a standard of care are submitted to
juries—and have been for decades—without express testimony from a
witness that the defendant breached a duty owed to the plaintiff. For
example, in automobile negligence cases, trial judges commonly submit a
specification of negligence on the duty to keep a proper lookout without
express testimony—lay or expert—that the defendant breached the duty.
See, e.g., Graber v. City of Ankeny, 616 N.W.2d 633, 643–44 (Iowa 2000)
(concluding the record contained sufficient evidence to support an
instruction on proper lookout when both drivers testified about what
they saw immediately before the collision); Luther v. Jones, 220 Iowa 95,
103, 261 N.W. 817, 821 (1935) (concluding the trial court correctly
submitted proper lookout to the jury even though there was “no
evidence, aside from the fact of the accident, that [the defendant] failed to
keep a proper lookout”).
Similarly, in premises liability cases against grocers, specifications
of negligence are commonly submitted to juries without express
testimony that grocers breached the duty to keep walkways free of
hazards. See, e.g., W. Supermarkets, Inc. v. Keith, 528 So. 2d 317, 320–
21 (Ala. 1988) (concluding a negligence claim was properly submitted to
the jury based on the plaintiff’s testimony about what she observed and
the store employees’ testimony that they swept and cleaned at regular
intervals); Strack v. Great Atl. & Pac. Tea Co., 150 N.W.2d 361, 363 (Wis.
1967) (concluding a jury’s finding that a store “failed to inspect and
sweep within a reasonable time before the accident” had “adequate
support in the evidence” even though there was “no direct testimony
establishing the Italian prune [on which the plaintiff slipped] was on the
floor” for a lengthy period). Just as the court in Strack did not require
30
the plaintiff to produce express testimony that the defendant grocer
breached its duty to keep its aisles safe for customers by leaving a prune
on the floor too long, Alcala had no burden to produce testimony that
Marriott breached its duty to properly train DePaepe when it failed to
train her on the durational effectiveness of the deicing compound she
was required to use on the company’s sidewalks. And just as we do not
require a plaintiff to produce express testimony that the defendant failed
to keep a proper lookout while driving her car at the time of a crash,
Alcala had no burden to produce express testimony on Marriott’s breach
of its duty to train DePaepe in this case.
I acknowledge the jury could conclude on this record that DePaepe
was credible and that she dutifully applied deicer three times during her
shift at the times she recorded on her checklist. But in evaluating the
sufficiency of the evidence supporting a jury instruction, “we give the
evidence the most favorable construction it will bear in favor of
supporting the instruction.” Asher, 846 N.W.2d at 496–97. Perhaps
Alcala could have presented more evidence supporting the improper
training specification of negligence, but what she did present—testimony
permitting the jury to conclude DePaepe was not trained on the
durational effectiveness of the deicing compound—was in my view at
least minimally sufficient to engender a jury question on the training
specification of negligence. I would therefore hold the district court did
not err in submitting Instruction 16.
II. Private Industry Standards as Evidence of Negligence.
I also disagree with the majority’s conclusion that the district court
erred in giving Instruction 20. The majority holds that because Russell
Kendzior and Alan Bowman provided different opinions as to the
industry safety standards’ applicability, the district court should have
31
permitted the jury to determine whether the ASTM and ANSI standards
were applicable. This conclusion misunderstands the allocation of
responsibility between the court and the jury on the issues of duty and
breach.
While industry standards may have “no legislative sanction, it is
difficult to conceive a better test of care than compliance with [their]
provisions.” Smith v. Iowa Pub. Serv. Co., 233 Iowa 336, 337, 6 N.W.2d
123, 123 (1942). As the New Jersey Supreme Court has explained,
A safety code ordinarily represents a consensus of opinion
carrying the approval of a significant segment of an industry.
Such a code is not introduced as substantive law, as proof of
regulations or absolute standards having the force of law or
of scientific truth. It is offered in connection with expert
testimony which identifies it as illustrative evidence of safety
practices or rules generally prevailing in the industry, and as
such it provides support for the opinion of the expert
concerning the proper standard of care.
McComish v. DeSoi, 200 A.2d 116, 120–21 (N.J. 1964). In other words,
industry standards, if relevant, properly inform the court’s
determinations whether the defendant owes a duty to the plaintiff and
what that duty is.
The existence of a legal duty and the scope of that duty are
questions of law for the court, not questions of fact for the jury. See,
e.g., Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 693 (Iowa
2009); Sweeney v. City of Bettendorf, 762 N.W.2d 873, 880 (Iowa 2009);
see also 1 Restatement (Third) of Torts: Liab. for Physical & Emotional
Harm § 6 cmt. b, at 67 (2010) [hereinafter Restatement (Third)]. Thus,
the court—not the jury—must decide whether a proffered industry
standard is applicable to a given set of facts. See Hansen v. Abrasive
Eng’g & Mfg., Inc., 856 P.2d 625, 628 (Or. 1993) (en banc) (discussing an
ANSI standard and noting “[d]etermination of the appropriate standard of
32
care is an issue of law”). “ ‘[A]pplicability’ connotes no . . . compulsion to
conform with a particular standard. Rather, ‘applicability’ connotes mere
relevance . . . .” Keller v. United States, 38 F.3d 16, 26 (1st Cir. 1994)
(citation omitted). Typically the court determines applicability of industry
standards through rulings in advance of trial or relevance objections
during trial. If a standard has no application to the circumstances of the
case, it is irrelevant to the court’s duty analysis. See Aller v. Rodgers
Mach. Mfg. Co., 268 N.W.2d 830, 840–41 (Iowa 1978) (affirming a trial
court’s exclusion of some industry safety standards, in part because
some of the standards were for completely different industries and
therefore irrelevant).
Marriott notably did not challenge the applicability of ASTM
Standard F1637 or ANSI Standard A1264.2 in its motion in limine, nor
did it make a relevance objection at trial when Kendzior relied on the
standards during his testimony. Instead, Marriott chose to contest the
standards’ applicability through Bowman’s expert opinion. Bowman
opined the standards were not applicable to Marriott because they were
not binding through state law or a municipal ordinance and because
they were developed primarily to address employee—not pedestrian—
traction and safety. Both of Bowman’s opinions are without merit.
The ASTM and ANSI standards discussed in this case “have not
been given the force of law.” See Jorgensen v. Horton, 206 N.W.2d 100,
103 (Iowa 1973) (concluding industry standards are “not conclusive on
the issue of negligence”). But Alcala did not assert negligence per se, so
the fact the industry standards do not carry the force of law does not
mean they have no relevance in this case. See Hansen, 856 P.2d at 628
(concluding an ANSI standard was “relevant to the jury’s consideration of
whether defendant met the standard of care” even though the standard
33
was “purely advisory and not binding on anyone”); see also Kent Vill.
Assocs. Joint Venture v. Smith, 657 A.2d 330, 337 (Md. Ct. Spec. App.
1995) (concluding “the fact that [an ANSI s]tandard has not been
officially adopted as a regulation” did not “destroy its relevance as
articulating a standard of care”). The majority erroneously attributes a
negligence per se claim to Alcala when it states the district court told the
jury the standard was violated by icy conditions. The district court did
no such thing; it merely told the jury what the standard says and
permitted the jury to conclude a violation, if one occurred, was some
evidence of negligence.
Likewise, Bowman’s opinion that the standards primarily address
employees and not pedestrians does not preclude their relevance to the
existence of a duty or its breach in this case. By analogy, although
OSHA regulations normally set forth an obligation only between
employers and employees, a violation of OSHA regulations is “evidence of
negligence as to all persons who are likely to be exposed to injury as a
result of the violation,” even if the person exposed to injury is not an
employee. Koll v. Manatt’s Transp. Co., 253 N.W.2d 265, 270 (Iowa
1977); see also Smith v. Kris-Bal Realty, Inc., 576 A.2d 934, 938 (N.J.
Super. Ct. App. Div. 1990) (“[T]he OSHA code . . . may be relied upon to
illustrate industry standards and to provide support for the opinion of an
expert on the proper standard of care . . . even though plaintiff was a
business guest at the marina, not a worker.”). The same principle is true
here. Even if the ASTM and ANSI standards primarily address employee
safety, “there are numerous areas traversed by both” employees and
hotel guests—like the outdoor walkway on which Alcala fell. Sorrels v.
NCL (Bahamas) Ltd., 796 F.3d 1275, 1282 (11th Cir. 2015). Accordingly,
even assuming Bowman’s opinion as to the primary purpose of the
34
standards is correct, it would not make them irrelevant in determining
whether Marriott owed a duty of reasonable care to Alcala under the
circumstances of this case. See id. at 1283.
The determination of whether a proffered industry standard is
relevant to the existence of a duty under a given set of facts is a question
of law for the court—not the jury. See Hansen, 856 P.2d at 628. Thus,
in deciding the relevance of industry standards to the existence of a
defendant’s duty, the district court must make the decision—as the
district court did in this case—even when presented with conflicting
expert testimony. Some courts conclude industry standards are
applicable and some conclude they are not, depending on the
circumstances of the case—but the court decides the question of their
relevance. Compare Briere v. Lathrop Co., 258 N.E.2d 597, 604 (Ohio
1970) (concluding the trial judge did not err in determining industry
standards were inapplicable “[i]n light of the conflicting testimony about
industry adherence to the [proffered] rules”), and Landsiedel v. Buffalo
Props., LLC, 112 P.3d 610, 617 (Wyo. 2005) (finding no reversible error in
the trial court’s “decision not to accept . . . industry standards as
defining the minimum standard of care” given the parties’ conflicting
evidence as to the standards’ applicability), with Dixon v. Int’l Harvester
Co., 754 F.2d 573, 582 (5th Cir. 1985) (“Although the testimony was in
dispute there was substantial evidence to indicate the relevancy of the
ANSI standards . . . .”), and Eagleburger v. Emerson Elec. Co., 794 S.W.2d
210, 231 (Mo. Ct. App. 1990) (en banc) (concluding a decision on ANSI
standards’ relevance “was a determination to be made by the trial court”
even though “there was substantial evidence by plaintiffs that the ANSI
35
standards applied . . . and substantial evidence by [the defendant] that
they did not”).6
By giving Instruction 20 in this case, the district court clearly
concluded the ASTM and ANSI standards were applicable and therefore
relevant to the existence of Marriott’s duty under the circumstances of
this case. The majority concludes the instruction was erroneous because
it means the court adopted Kendzior’s opinion on applicability over
Bowman’s. But because the court, not the jury, decides whether the
standards are relevant, that was its prerogative, and because the experts
in this case were completely at odds, the district court could not have
adopted both experts’ views on relevance. Furthermore, even when a
court concludes industry standards are applicable, it does not
automatically follow that the court credits an expert’s opinion as to
breach of those standards. See Keller, 38 F.3d at 29. A jury could
conclude, for example, that noncompliance with relevant industry
standards “was excusable, and therefore not negligent.” Morgan v. State,
862 P.2d 1080, 1083 (Idaho 1993).
I conclude Kendzior’s expert testimony is substantial evidence
amply supporting the district court’s determination that the standards
6I acknowledge the highest court in New York has reached a different
conclusion. See Sawyer v. Dreis & Krump Mfg. Co., 493 N.E.2d 920, 925 (N.Y. 1986)
(“The ANSI requirements . . . could be considered by the jury as some evidence of
negligence if it first found that the standards set forth in the booklet represented the
general custom or usage in the industry.”). Accordingly, federal district courts applying
New York law have also left the question of relevance of industry standards to the jury.
See Almonte v. Averna Vision & Robotics, Inc., 128 F. Supp. 3d 729, 744 (W.D.N.Y.
2015); Rupolo v. Oshkosh Truck Corp., 749 F. Supp. 2d 31, 43 (E.D.N.Y. 2010). My
research reveals that many other courts addressing the question take a different
approach allocating to the court the responsibility of deciding the relevance of industry
standards to the existence of a duty. I find that approach consistent with the
traditional allocation of responsibility between the court and the jury and would
therefore adopt it in this case.
36
were relevant to Marriott’s duty to exercise reasonable care. Having
clarified the question of relevance of the standards was a question of law
for the court, not a question of fact for the jury, I now turn to consider
whether the court committed legal error by concluding ASTM Standard
F1637 and ANSI Standard A1264.2 were relevant to the duty issue in
this case.
My analysis of this question is slightly more difficult than it might
be in other cases because neither party marked the ASTM and ANSI
standards and caused them to be made part of the record. Nonetheless,
the trial transcript reveals they were presented to the court and shown to
the jury via a projector during Kendzior’s testimony. Kendzior read from
the standards and Instruction 20 contains verbatim language from them.
Additionally, the standards’ substance is published and available to this
court. Thus, this is not a case where “the content of the [standard]s is
not specified,” which might make us “unable to determine from the
record before us the relevance of the sections cited.” Gerace v. 3-D Mfg.
Co., 522 N.W.2d 312, 318–19 (Iowa Ct. App. 1994).
While we often address industry standards in terms of
admissibility, I conclude admission of them as an exhibit is not a
condition precedent to their applicability and their relevance to the
court’s determination of the existence of a legal duty.7 I find support for
this conclusion in three cases.
In a Colorado case, the parties debated whether OSHA regulations
were applicable. Scott v. Matlack, Inc., 39 P.3d 1160, 1168 (Colo. 2002)
7Although admitting industry standards as an evidentiary exhibit is not a
condition precedent to the court’s consideration of them in its determination of the duty
question, I encourage the bench and bar in future cases to mark and identify them for
inclusion in the record.
37
(en banc). “Specific regulations were not entered into evidence but were
discussed extensively by various witnesses.” Id. The court concluded
“the jury should be permitted to hear evidence of [OSHA] regulations as
some indication of the standard of care.” Id. at 1170 (emphasis added).
The court spoke in terms of “admitting evidence,” but it is clear the
evidence came solely—and permissibly—through testimony, not through
an evidentiary exhibit. See id. at 1164, 1170.
In a Missouri case, an expert was “not allowed to cite . . . specific
[standard]s” but did testify that “ANSI standards exist . . . and that he
reviewed and considered those standards” in forming his opinion.
Ratcliff v. Sprint Mo., Inc., 261 S.W.3d 534, 550 (Mo. Ct. App. 2008). The
Ratcliff court found no reversible error resulted from the ruling
precluding the expert’s reference to specific standards because the jury
heard their substance through the expert’s testimony. See id.
Finally, we have noted that private safety codes are on occasion a
subject of trial testimony even when documents evidencing them are not
received in evidence. See Isaacs v. E. Iowa Light & Power Coop., 236
Iowa 402, 408, 19 N.W.2d 208, 211 (1945). In Isaacs, we noted the
appellate record did not show a private safety code was offered into
evidence. See id. at 408, 19 N.W.2d at 211. We concluded that fact
alone resulted in no reversible error given that “some reference in the
testimony to said code” was permitted and because compliance with the
private safety code was not determinative of the defendant’s compliance
with the standard of care. See id. at 408–09, 19 N.W.2d at 211; accord
Cronk v. Iowa Power & Light Co., 258 Iowa 603, 612, 138 N.W.2d 843,
848 (1965) (concluding “[a]ctionable negligence may exist even though” a
defendant complies with an industry standard or private safety code).
38
I conclude Alcala adequately presented the ASTM and ANSI
standards at issue in this case in the district court so that the court
could determine whether they were relevant to the existence of Marriott’s
duty of care. Cf. Porter v. Omni Hotels, Inc., 579 S.E.2d 68, 71 (Ga. Ct.
App. 2003) (concluding a plaintiff did not show an ANSI standard applied
when he neither placed the standard into evidence nor presented expert
testimony regarding the standard).
After reviewing the language of the standards discussed by the
experts at trial and incorporated in Instruction 20, I would hold the
district court did not err in finding them applicable and relevant to
Marriott’s duty of care. The ANSI standard clearly addresses snow and
ice removal from pedestrian walkways. It is not part of a statute or
ordinance, but the district court instructed the jury only that it could
consider violation of the standard as evidence of negligence.
The ASTM standard is a closer question. Marriott contends
Standard F1637 addresses only construction materials and design, so
the notion that walkways must be slip resistant and that a slippery
exterior walkway is substandard evaluates only the characteristics of the
construction material used to build the walkway (in this case concrete),
not any effects of weather on the walkway. That position has some
intuitive appeal, but section 1.1 of Standard F1637 addresses
construction standards and “minimum maintenance criteria.”
Furthermore, the standard also provides walkways should be slip
resistant under “expected environmental conditions and use.” Notably,
the standard does not expressly exclude from its scope this particular
class of persons, property, or circumstances. Cf. Lynch v. Reed, 944 P.2d
218, 224 (Mont. 1997) (concluding an ANSI construction standard was
inapplicable because the provision setting forth the scope of the standard
39
expressly stated the standard did not apply to residential projects);
Kalish v. HEI Hosp., LLC, 980 N.Y.S.2d 80, 82 (App. Div. 2014) (noting
Standard F1637 “specifically identif[ies] bath tubs and showers as
beyond the scope of the practices contained therein”). Nor is the
standard obviously inapplicable because it is directed at an entirely
different industry. Cf. Aller, 268 N.W.2d at 840–41 (concluding “safety
standards in the metalworking industry” were inapplicable and irrelevant
in a case involving the woodworking industry). Although ASTM Standard
F1637 is couched in much more general terms than the ANSI standard, I
conclude the district court did not err in finding it relevant to the court’s
determination of Marriott’s duty and to the jury’s determination of
negligence. See Williams v. Crane, No. 2:14-CV-241 TS, 2015 WL
7176370, at *2 (D. Utah Nov. 13, 2015) (concluding, in a slip-and-fall
case involving snow and ice, that “the ASTM Standard Practice for Safe
Walking Surfaces”—which is number F1637—“may be helpful to the jury
in determining reasonable safety practices for safe walking surfaces”).
Accordingly, the district court did not err in giving Instruction 20.
C. Continuing Storm. The district court concluded the
continuing-storm doctrine had no application under the facts of this case
and declined Marriott’s request for an instruction. Although the majority
does not reach this issue, I conclude that, even without reaching the
doctrine’s continued vitality under the Restatement (Third), the district
court did not err and should be affirmed.
We adopted the continuing-storm doctrine in 1953. Reuter v. Iowa
Tr. & Sav. Bank, 244 Iowa 939, 943, 57 N.W.2d 225, 227 (1953). I
generally agree with the majority’s recitation of the history of the doctrine
in Iowa, but I offer one additional point: There is a difference between a
claim challenging the timing of snow removal efforts and a claim
40
challenging the manner of snow removal efforts. Wailes v. Hy-Vee, Inc.,
861 N.W.2d 262, 267 (Iowa Ct. App. 2014). A claim challenging the
manner of snow removal is not subject to the continuing-storm doctrine
because it merely seeks to enforce “the general rule that an actor
ordinarily has a duty to exercise reasonable care when the actor’s
conduct creates a risk of physical harm.” Id.; see 1 Restatement (Third)
§ 7(a), at 77; see also Robinson v. Park Cent. Apartments, 248 F. Supp.
632, 635 (D.D.C. 1965) (“The defendants undertook the task of clearing
the sidewalk . . . . Even if there was no legal duty to do so, once a person
voluntarily undertakes to perform a task, he [or she] is held to the
requirement that it should be done free of negligence . . . .”); Estep v. B.F.
Saul Real Estate Inv. Tr., 843 S.W.2d 911, 914 (Ky. Ct. App. 1992) (“In
this case, [the land occupiers] opted to attempt to clear their lot and
sidewalks of ice and snow . . . . Since they chose to so act, they must act
in a reasonable manner or be liable for their failure.”); Danner v. Myott
Park, Ltd., 306 N.W.2d 580, 583 (Neb. 1981) (reversing a verdict in a
defendant’s favor, remanding for new trial, and disapproving of the
continuing-storm instruction the trial court gave because it erroneously
allowed the jury to find “that improper clearing of snow and ice . . . was
of no consequence because defendant had a right to wait until the end of
the storm before doing anything at all”). Because I conclude the evidence
here did not justify a continuing-storm instruction in any event, I find it
unnecessary to decide whether Alcala challenges the timing or manner
(or both) of Marriott’s snow and ice removal.
41
We have not had occasion to define the word “storm” precisely,8
nor have we prescribed an outer limit of what might be considered a
reasonable time for removing snow or ice from walkways after a storm
ends under the continuing-storm doctrine. See Frykman v. Univ. of
Minn.—Duluth, 611 N.W.2d 379, 381 (Minn. Ct. App. 2000) (declining to
resolve a case as a matter of law because the facts did not establish “a
clear-cut storm incident”); see also Batie v. City of Humboldt, 228 Iowa
528, 532–33, 292 N.W. 857, 859 (1940) (declining, in a pre-Reuter case,
to conclude three hours between the end of a snowstorm and a plaintiff’s
fall was as a matter of law an unreasonable delay in addressing the
hazard). However, in considering whether the evidence in this case
supports Marriott’s requested continuing-storm instruction, I keep in
mind the rule’s purpose and animating principle, as this court does in
many other contexts. See, e.g., Baker v. Bridgestone/Firestone, 872
N.W.2d 672, 678 & n.4 (Iowa 2015) (acknowledging the longstanding
principle that the “humanitarian and beneficent purpose” of workers’
compensation statutes informs our interpretation of them); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 378 (Iowa
2005) (keeping in mind “the underlying purposes of attorney discipline”
when determining a sanction for ethical misconduct); Renander v. Inc.,
Ltd., 500 N.W.2d 39, 42 (Iowa 1993) (declining to interpret a statute to
“expand the legislature’s narrow purpose”).
The rule’s purpose is essentially to prevent land occupiers from
having to undertake Sisyphean tasks every time it snows. See Reuter,
244 Iowa at 943, 57 N.W.2d at 227. But not every weather event thwarts
8In particular, we have not been called upon to decide how severe a weather
event must be to support a continuing-storm instruction.
42
cleanup. See Powell v. MLG Hillside Assocs., L.P., 737 N.Y.S.2d 27, 29
(App. Div. 2002). “[I]f the storm has passed and precipitation has tailed
off to such an extent that there is no longer any appreciable
accumulation, then the rationale for continued delay abates, and
common sense would dictate that the rule not be applied.” Id. A weather
event not presenting an ongoing deluge of subzero temperatures and
blowing and drifting snow, see Olejniczak v. E.I. du Pont de Nemours &
Co., 79 F. Supp. 2d 209, 217 (W.D.N.Y. 1999), freezing rain, see Rochford
v. G.K. Dev., Inc., 845 N.W.2d 715, 718 (Iowa Ct. App. 2014), or slush
and snow pedestrians might track into a building’s vestibule, see Parsons
v. H.L. Green Co., 233 Iowa 648, 648–49, 10 N.W.2d 40, 41 (1943), does
not present the kinds of changing conditions the continuing-storm
doctrine addresses. See Reuter, 244 Iowa at 943, 57 N.W.2d at 227.
Courts in other jurisdictions have addressed allegedly ongoing
storms and concluded a lack of changing conditions might render the
continuing-storm doctrine inapplicable. For example, in Powell, the
court found it important in rejecting the doctrine’s application that “there
was nothing more than trace amounts of precipitation during the two
hour and 20 minute period . . . prior to the accident.” 737 N.Y.S.2d at
29. In another New York case, the court questioned whether the
analogous storm-in-progress rule applied when there was a two-hour
window “between the cessation of freezing rain and the accident” during
which normal (not freezing) rain fell. Vosper v. Fives 160th, LLC, 973
N.Y.S.2d 589, 590 (App. Div. 2013).
Of course, the continuing-storm doctrine “does not foreclose
submission to the jury, on a proper evidentiary foundation, of the factual
determination[] of whether a storm has ended.” Kraus v. Newton, 558
A.2d 240, 243–44 (Conn. 1989). In one Connecticut case, the court
43
found sufficient the evidentiary foundation for a requested continuing-
storm instruction because “climatological records . . . detailed a number
of different types of weather between 7 a.m. and 4 p.m. on the day of the
plaintiff’s fall, including light snow, freezing rain, heavy rain, light rain
and mist.” Umsteadt v. G.R. Realty, 1 A.3d 243, 248 (Conn. App. Ct.
2010). However, when I evaluate this record while keeping in mind the
continuing-storm doctrine’s purpose, I conclude the district court
correctly rejected the proposed instruction in this case.
The certified weather records in this case unquestionably show
mist continuing from January 20 through the morning of January 21 in
Moline and mist at some point on January 21 in Davenport. While those
locations are a few miles from Bettendorf, we have long acknowledged
that a certified weather record from a nearby observation point is
“competent and relevant” evidence “for the purpose of showing the
temperature and snowfall during the time it purport[s] to cover.” Huston
v. City of Council Bluffs, 101 Iowa 33, 39, 69 N.W. 1130, 1131 (1897)
(accepting weather records from Omaha, Nebraska as indicative of
weather in Council Bluffs, Iowa during the same time). But the mist did
not present the types of changing conditions undergirding the
continuing-storm doctrine. By 7:00 p.m. on January 20, over twelve
hours before Alcala fell, the weather system was no longer producing
measurable quantities of precipitation in nearby Moline and Davenport;
nor did it feature other phenomena—like strong gusts of wind or blowing
snow—that would have made cleanup and sidewalk safety precautions
impractical.
Meteorological data from nearby Moline indicates no
accumulations of precipitation after 7:00 p.m. on January 20. At most,
the data from Davenport indicates a trace amount of precipitation was
44
observed on January 21. But the Davenport data lacks temporal
specificity, so if the district court had given Marriott’s requested
instruction, the jury would have had to speculate that the trace accruing
on January 21 occurred before Alcala fell around 8:00 a.m.
“[S]peculation is not substantial evidence.” Sleeth v. Louvar, 659 N.W.2d
210, 215 (Iowa 2003); cf. La Due v. G & A Grp. Inc., 660 N.Y.S.2d 215,
216 (App. Div. 1997) (declining to grant summary judgment based on the
storm-in-progress rule because while it was undisputed some snowfall
occurred “on the date of plaintiff’s accident, the meteorological records do
not demonstrate the specific hours during which the snow fell”).
Furthermore, the Davenport data reflects 0.01 inches of precipitation on
January 25. Thus, the trace amounts on January 21 totaled even less
than that. I would conclude as a matter of law that precipitation totaling
less than 0.01 inches on January 21 did not impede Marriott’s efforts to
clear the ice from the sidewalk.
Indeed, the fact that Marriott claims to have made repeated efforts
to clear ice and snow after all accumulation associated with the storm
event stopped is compelling evidence that the weather in the early
morning hours of January 21 posed no obstacle making removal of ice
from Marriott’s sidewalk impractical. This is not a case where a land
occupier tried once in vain to clear a path but howling winds and
relentless snowfall forced them inside to await the storm’s passage, or a
case where “[a] fairly warm autumn day . . . suddenly changed into a
freezing winter’s evening by an outburst of elemental fury.” Parks v. City
of Des Moines, 195 Iowa 972, 983, 191 N.W. 728, 733 (1923) (De Graff,
J., dissenting). Rather, Marriott’s employees attempted to clear—or at
least represented that they did clear—the sidewalks at least six times
between 6:00 p.m. on January 20 and 6:00 a.m. on January 21.
45
Nor did the lay testimony about the weather conditions on
January 21 constitute substantial evidence supporting a continuing-
storm instruction. Like the district court, I would conclude the majority
of statements—for example, that “it was quite icy” and “there were
accidents all over town”—simply described the effects of the January 20
storm event, not its continuation at a time material to Alcala’s fall. At
best, one or two witnesses testified that there was mist in the air on the
morning of January 21. But I find no substantial evidence in this record
tending to prove the weather was so inclement as to make it impractical
to clear Marriott’s sidewalk of ice before Alcala fell. Accordingly, I find no
error in the district court’s refusal to give the continuing-storm
instruction Marriott requested.
Finding no error in the instructions given by the district court, I
would vacate the decision of the court of appeals and affirm the district
court judgment in Alcala’s favor.
Wiggins and Appel, JJ., join this concurrence in part and dissent
in part.