David Felderman, Of The Estate Of Mary Belle Westphal, Vs. City Of Maquoketa, Iowa ( 2007 )

IN THE SUPREME COURT OF IOWA
No. 31 / 05-1407
Filed May 11, 2007
DAVID FELDERMAN, Executor of the Estate
of MARY BELLE WESTPHAL, Deceased,
Appellant,
vs.
CITY OF MAQUOKETA, IOWA,
Appellee.
Appeal from the Iowa District Court for Jackson County, Mark J.
Smith, Judge.
Appeal from a district court ruling directing a verdict in favor of the
defendant. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
Robert F. Wilson of Wilson, Matias, Hauser & Den Beste, Cedar
Rapids, for appellant.
Michael C. Walker of Hopkins & Huebner, P.C., Davenport, for
appellee.
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WIGGINS, Justice.
In this case we must decide if the district court was correct when it
directed a verdict in favor of the City of Maquoketa in a personal injury
action. Because the district court correctly directed the verdict in favor of
the City, we vacate the decision of the court of appeals and affirm the
judgment of the district court.
On July 8, 2003, Mary Belle Westphal went to the Maquoketa
Community Center to watch her great-grandson attend a swimming class.
It was a rainy day, so the swimming class was held indoors at the center.
Westphal walked up the center’s front stairs. She reached the landing on
the top of the stairs, but after pulling on the front door, she fell backward,
flew through the air, and landed at the base of the stairs. No one witnessed
Westphal’s fall. Westphal suffered multiple elbow fractures, a fractured
shoulder, a fractured hip, a fractured rib, and a gash in her head. She was
in and out of the hospital and other care facilities from the time of the fall
until May 2004 when she died.
Westphal’s estate brought a negligence action against the City. The
estate’s petition alleged the City was negligent in the design, construction,
and maintenance of the center. The matter proceeded to a jury trial. At the
close of the estate’s case, the City moved for a directed verdict. The district
court granted the motion finding there was insufficient evidence to create a
jury question on the issue of liability. The estate appealed the directed
verdict.
We transferred the case to our court of appeals. The court of appeals
upheld the district court’s directed verdict with respect to the estate’s
negligent design and construction claims. However, the court of appeals
determined the evidence generated a jury question on whether the City
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negligently maintained the center’s front entrance. The court of appeals
remanded the case to the district court for a retrial.
The City petitioned our court for further review and this court granted
the petition.
We review the district court’s grant of a directed verdict for correction
of errors at law. Determan v. Johnson, 613 N.W.2d 259, 261 (Iowa 2000).
In doing so we take into consideration all reasonable inferences that could
be fairly made by the jury and view the evidence in the light most favorable
to the nonmoving party. Yates v. Iowa West Racing Ass’n, 721 N.W.2d 762,
768 (Iowa 2006). If there is substantial evidence in the record to support
each element of a claim, the motion for directed verdict must be overruled.
Id. Evidence is substantial when reasonable minds would accept the
evidence as adequate to reach the same findings. Id.; see also Determan,
613 N.W.2d at 261. “Our role, then, is to determine ‘whether the trial court
correctly determined that there was insufficient evidence to submit the
issue . . . to the jury.’ ” Determan, 613 N.W.2d at 261 (quoting Hasselman v.
Hasselman, 596 N.W.2d 541, 545 (Iowa 1999)).
I. Negligent Design and Construction. Viewing the evidence in the light
most favorable to the estate, the evidence establishes the center’s front
threshold, doors, landing, railings, and stairs had not been reconstructed
since 1967 when the building was erected. The estate argues the City’s
answer to an interrogatory indicates in approximately 1992 the City
replaced the outside exterior front doors and in approximately 1999 the City
installed new latches on the outside doors. However, the estate never made
this interrogatory answer a part of the record. Accordingly, we will not
consider the answer in deciding this appeal.
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The only evidence supporting a negligent design or construction
theory came from the estate’s expert. He testified the center’s front landing,
stairs, and railings failed to comply with certain provisions of the ADA
Standards for Accessible Design. The ADA standards relied upon by the
expert were revised as of July 1, 1994. See 28 C.F.R. pt. 36 app. A (1994).
The Code provides a city is immune from liability for negligent design
or construction of a public facility if the facility “was constructed or
reconstructed in accordance with a generally recognized engineering or
safety standard, criteria, or design theory in existence at the time of the
construction or reconstruction.” Iowa Code § 670.4(8) (2003). A city is not
required to upgrade, improve, or alter any aspect of an existing public
facility to new, changed, or altered design standards. Id. The person
making a negligent design or construction claim holds the burden to
establish the city did not construct or reconstruct the public facility in
accordance with a generally recognized engineering or safety standard,
criteria, or design theory in existence at the time of the construction or
reconstruction. Fischer v. City of Sioux City, 695 N.W.2d 31, 34 (Iowa 2005).
The estate offered no proof of the City’s failure to adhere to a generally
recognized engineering or safety standard, criteria, or design theory in
existence in 1967 when the center was constructed. Consequently, the
estate’s claims based on negligent design and construction must fail.
In its reply brief the estate raises for the first time its argument that
the City purchased insurance; thus, its immunity for negligent design and
construction is waived. See Iowa Code § 670.4; see also City of West Branch
v. Miller, 546 N.W.2d 598, 604 (Iowa 1996) (stating “if a liability insurance
policy is purchased covering the section 670.4 exceptions, governmental
immunity is waived as to those exceptions to the extent stated in the
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policy”). The estate failed to raise the waiver of immunity issue in the
district court. Ordinarily we do not decide an issue on appeal that was not
raised by a party or decided by the district court. Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). Accordingly, we will not address the waiver
issue for the first time on appeal.
Therefore, we affirm the district court’s ruling granting the City a
directed verdict on the estate’s claims for negligent design and construction.
II. Negligent Maintenance. Section 670.4(8) does not provide a city
with immunity for negligent maintenance. Iowa Code § 670.4(8); see also
Radley v. Transit Auth., 486 N.W.2d 299, 302 (Iowa 1992) (holding “Iowa has
a policy that permits suits against the state for negligent maintenance of
highways”). Generally, questions of negligence and proximate cause are for
the jury. Larkin v. Bierman, 213 N.W.2d 487, 488 (Iowa 1973). Only in
exceptional cases can a court decide questions of negligence and proximate
cause as a matter of law. Id.
The undisputed evidence establishes the entrance to the center had
two front doors, a right door and a left door. Viewing the evidence in the
light most favorable to the estate, reasonable minds could find Westphal
was unable to pull open the door to gain access to the center. Further,
reasonable minds could accept that the force Westphal exerted to pull open
the door caused her to lose her grip of the handle, fall backward, and land
at the base of the stairs.
We also find reasonable minds could determine Westphal attempted
to open either the right or the left door. We base this conclusion on
Westphal’s testimony, taken by the City’s insurance adjuster, and admitted
into evidence by the district court. In her statement Westphal initially
stated when she tried to enter the center she attempted to pull open the
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right door. Later in her statement Westphal said she was somewhat
confused by the references to the right and the left. She then changed her
statement and said the door she attempted to pull open was the left door.
Regardless if reasonable minds determine Westphal lost her grip on
the right door or the left door, the estate’s claim for negligent maintenance
cannot withstand the City’s motion for directed verdict. It does not matter
which door Westphal lost her grip on because there is no evidence in the
record to establish the City did not properly maintain either door on the day
Westphal fell.
The estate attempted to offer evidence of negligent maintenance
through the testimony of its expert and Westphal’s granddaughter-in-law.
This testimony, however, does not establish the City failed to maintain
either of the center’s front doors at the time of Westphal’s fall.
The estate’s expert based his testimony on Westphal’s statement that
she was trying to open the left door and on his inspection, some two years
after Westphal’s fall, of the center’s front threshold, doors, landing, railings,
and stairs. The expert testified the left door was the “active” door. The
expert further testified there were markings on the concrete below the left
door indicating a door had previously dragged on the landing. He was
unable to testify when these markings were made on the concrete.
On the day the expert made his inspection, the doors were locked and
unavailable for testing. Therefore, he was not able to open or close the left
door to determine if it made or was making the markings on the concrete.
He was also unable to determine if there were any other problems with the
left door. The expert testified he did not know if the door was difficult to
open or not. Additionally, he testified even if he knew the door was difficult
to open on the day of his inspection, this fact does not mean the door would
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have been difficult for Westphal to open on the day of her fall. Thus,
specific to the day of Westphal’s fall, the expert could not and did not give
any opinion regarding a maintenance problem with the center’s left door.
Accordingly, there was not substantial evidence in the record so reasonable
minds could find the City failed to properly maintained the center’s left door
at the time of Westphal’s fall.
Westphal’s granddaughter-in-law provided the only evidence
regarding the right door. She testified that on the day of Westphal’s fall, she
arrived at the center shortly before Westphal. As she attempted to pull the
right door open, the granddaughter-in-law held her child with her left hand.
She was unable to pull the right door open. She thought the door was
locked. After pulling on the door twice, someone from inside the center
came and opened the door for her.
The granddaughter-in-law’s testimony does not establish that the City
failed to maintain the right door at the time of Westphal’s fall. At best, this
testimony supports the testimony of the estate’s expert that the left door
was the only active door. If the right door was locked, as Westphal’s
granddaughter-in-law thought, the door failed to open because it was locked
not because the City failed to maintain the right door at the time of
Westphal’s fall. Accordingly, there was not substantial evidence in the
record so reasonable minds could find the City failed to properly maintain
the center’s right door at the time of Westphal’s fall.
Consequently, this is one of those exceptional cases where the court
should find, as a matter of law, a fact question regarding the issue of
negligence or proximate cause was not generated by the evidence.
Therefore, we must affirm the decision of the district court when it directed
a verdict in favor of the City.
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Because the district court correctly directed the verdict in the City’s
favor, we vacate the decision of the court of appeals and affirm the
judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Hecht, J., who takes no part.