Carolyn Lindgren v. Keshav Corporation d/b/a Americinn Coralville, an Iowa Corporation ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0829
Filed August 5, 2020
CAROLYN LINDGREN,
Plaintiff-Appellant,
vs.
KESHAV CORPORATION d/b/a AMERICINN CORALVILLE,
an Iowa Corporation,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Paul D. Miller,
Judge.
Carolyn Lindgren appeals following a jury verdict for Keshav Corporation.
AFFIRMED.
Larry J. Thorson of Ackley, Kopecky & Kingery, L.L.P., Cedar Rapids, for
appellant.
James P. Craig and Shannon M. Powers of Lederer Weston Craig PLC,
Cedar Rapids, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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MULLINS, Judge.
Carolyn Lindgren appeals following a jury verdict in her personal-injury
action against Keshav Corporation (Keshav Corp.), owner of an AmericInn hotel in
Coralville, Iowa. Lindgren claims the district court erred by allowing testimony
about a swimming pool inspection performed four years after the incident occurred.
In addition, Lindgren claims the district court erred in not allowing the jury to inspect
the premises upon request.
I. Background Facts and Proceedings
In October 2012, Lindgren and her family checked into the AmericInn hotel.
Lindgren and her daughters visited the pool area. On her second trip into the pool,
Lindgren slipped on the top step while attempting to reach for the railing. She fell
and injured her lower back and buttocks. Lindgren then filed an incident report
with the hotel clerk and returned home.
The hotel’s pool was inspected annually by the Johnson county public
health department, pursuant to Iowa Administrative Code chapter 15. The
Administrative Code states that pool stairs shall have a contrasting stripe at the
edge of each step that is “slip-resistant.” Iowa Admin. Code r. 641–15.4(4)(b)(4),
15.4(4)(b)(8). James Lacina, the environmental health manager for Johnson
county public health, visually inspected the pool’s steps in 2007 and 2012.
According to his 2012 visual inspection, six months prior to Lindgren’s fall, the
pool’s steps were in compliance.
In 2014, Lindgren filed a personal-injury action claiming damages caused
by her slipping on an alleged non-compliant step in the hotel’s pool. Lindgren
subpoenaed Lacina for trial, scheduled for December 2016. This caused Lacina,
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without prompting from either party, to return to the hotel’s pool to inspect the
steps. The parties only discovered that Lacina conducted the 2016 inspection a
week before trial. Lindgren initially argued her claim under a theory of negligence
per se. On Lacina’s cross-examination by Keshav Corp., counsel asked when he
had last visited the pool. Lindgren objected, claiming the visit was irrelevant,
prejudicial, and therefore should not be admitted.1 An offer of proof was made
outside the presence of the jury about Lacina’s inspection in 2016. The district
court explained:
The criminal appealed cases always say any evidence that’s
favorable to one party is always prejudicial to the other party, but I’m
going to let it in. Both sides have had equal access to this witness.
I do think it’s relevant. I don’t think it violated [Keshav Corp.’s motion
in limine] by letting him say that he went out to look at and inspect
and personally feel . . . the pool when he got notice of the litigation.
In addition, the district court said Lindgren opened the door by testifying the pool
steps were not slip-resistant, which allowed Keshav Corp. to rebut that evidence.
Finally, the court noted Lacina was not an expert witness.
Lacina then testified that there had been no structural changes to the pool
between 2007 and 2016 and it was his opinion that the steps were in compliance
with the applicable regulation. Lacina also testified that if a structural permit had
been requested for the pool, such as changing the steps, his office would have
been aware of it.
1 Lindgren also argued that Lacina’s 2016 inspection testimony amounted to a
“negative” subsequent remedial measure and thus, should not be admitted under
Iowa Rule of Evidence 5.407. This argument is without merit; rule 5.407 excludes
evidence of post-incident safety additions to the subject condition. This prevents
the erroneous inference of, “if they needed to make something safer, then it was
faulty or in poor condition to begin with.” No such inference can be made here.
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The owner of the hotel testified that he was never cited for lack of a slip-
resistant edge to the pool steps. The owner further testified he had never
enhanced the texture or made any alterations to the steps. By contrast, Lindgren
testified she slipped on the tiled edge of the pool’s step, which was “glazed” and
“slick.” She stated the rest of the step, the plaster section, was rougher. Lindgren
called a second witness who corroborated her testimony.
At the conclusion of the trial, Lindgren requested that the jury be able to
view the pool in person and conduct an examination of the steps. In addition, the
jury made the same request during their deliberation. The district court denied the
requests, stating:
Decisions of jury viewing of the scene are within the Court’s
discretion. I’m denying that because we don’t allow juries, first of all,
to conduct experiments on their own. Secondly, the jury has been
able to view through numerous pictures and video the layout, the
whole scene through . . . those photographs. And they certainly have
. . . adequate knowledge of the scene for the purposes of making
their decisions in this case.
Lindgren argues on appeal the district court abused its discretion when it
permitted testimony about Lacina’s pool inspection conducted in 2016, four years
after the incident occurred. In addition, Lindgren argues the district court abused
its discretion in denying her request for a jury examination of the pool.
II. Scope and Standard of Review
“We review the district court’s evidentiary rulings for an abuse of discretion.”
Hall v. Jennie Edmundson Memorial Hosp., 812 N.W.2d 681, 685 (Iowa 2012).
“The decision to grant or deny a jury view request . . . is reversible only upon a
showing of abuse of discretion.” State v. Hicks, 277 N.W.2d 889, 893 (Iowa 1979)
(citations omitted). “An abuse of discretion occurs when the trial court ‘exercises
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its discretion on clearly untenable grounds or to an extent clearly unreasonable.’”
Kurth v. Iowa Dep’t of Transp., 628 N.W.2d 1, 5 (Iowa 2001) (quoting State v.
Greene, 592 N.W.2d 24, 27 (Iowa 1999)). “‘[W]e grant the district court wide
latitude regarding admissibility’ and will reverse only where the losing party was
prejudiced by an unreasonable decision.” Id. (quoting State v. Sallis, 574 N.W.2d
15, 16 (Iowa 1998)).
III. Analysis
A. 2016 Inspection Testimony
Lindgren asserts the district court abused its discretion by allowing
testimony about Lacina’s inspection of the pool’s steps four years after the incident
occurred. In support of this contention, she claims this particular testimony was
irrelevant and prejudicial.
“Evidence is relevant if it has ‘any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.’” Graber v. City of Ankeny, 616
N.W.2d 633, 638 (Iowa 2000) (quoting Iowa R. Evid. 5.401). “Irrelevant evidence
is not admissible.” Id. at 637. However, “even relevant evidence should not be
admitted when ‘its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of issues, or misleading the jury . . . .’” Id. at 637–38
(quoting Iowa R. Evid. 5.403). “A determination of the probative value of relevant
evidence focuses on the strength and force of the tendency of the evidence ‘to
make a consequential fact more or less probable.’” Id. at 638 (citing McClure v.
Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000)). “Unfair prejudice arises when
the evidence prompts the jury to make a decision on an improper basis . . . .” Id.
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(quoting Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997)).
Therefore, two questions must be answered in order to admit evidence: “(1) is the
evidence relevant? and (2) if so, is its probative value substantially outweighed by
the danger of prejudice or confusion?” Id.
1. Relevance
Keshav. Corp. argues that the slip-resistant nature of the steps in 2016 is
relevant to the nature of the steps in 2012. It argues that the Johnson County
public health department would have been aware of any structural change to the
pool; Lacina testified that any structural change to the pool requires notifying the
health department. In addition, Lacina stated the steps in 2016 were compliant
and consistent with his previous inspections. Finally, the hotel’s owner testified he
never altered the pool’s steps nor was he ever cited for their slip resistance.
Thus, the argument goes, if the steps were compliant in 2016 and no
alterations were made since 2012, then the steps were likely compliant in 2012.
While it is possible the slip resistance was altered without notice being given to the
health department, the 2016 inspection and testimony tends to show the steps’
compliance in 2012 was more probable than if the testimony had not been
admitted. Thus, despite being four years after the injury, the 2016 inspection and
testimony is relevant.
2. Prejudice
But our inquiry does not stop here, because even relevant evidence may be
inadmissible if it is substantially prejudicial. Id. at 637–38.
Lindgren claims that the 2016 testimony was prejudicial because it occurred
four years after the incident. It is true that four years is a substantial period of time
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after the incident. However, the testimony was relevant and thus, the time
difference alone does not make the testimony prejudicial.
Lindgren further argues the 2016 testimony provided the jury an improper
basis in deciding the case. In support of this argument, she points to the jury’s
request to examine the pool’s steps. We see no reason to infer an improper basis
of decision from what appears to be the jury’s curiosity.
Because the testimony was relevant and non-prejudicial, it was not
unreasonable for the trial court to admit. Thus, we find no abuse of discretion.
B. Jury-Examination Request
Lindgren also claims the district court abused its discretion by denying her
request of a jury examination of the pool’s steps. The district court has discretion
in determining whether to permit a jury view. Iowa R. Civ. Pro. 1.922; Humphrey
v. Happy, 169 N.W.2d 565, 569 (Iowa 1969). The purpose of a viewing “is to
enable (the jury) to better understand and apply the testimony of the witnesses,
and not to make them silent witnesses in the case; and . . . the verdict must be
based on the evidence, and not on (the jury’s) personal examination.” Hicks, 277
N.W.2d at 893 (quoting State v. Ling, 199 N.W. 285, 287 (1924)).
Lindgren argues a jury examination of the pool would have mitigated the
prejudice caused by Lacina’s 2016 inspection testimony. A viewing is meant to
help the jury in applying the witness testimony. Id. A viewing cannot be used to
supplant or corroborate witness testimony. Id. Lindgren’s request based on her
theory of mitigation is not a permissible reason to allow a jury examination. Id. As
the district court correctly determined, juries are not permitted to conduct their own
experiments. See id.8
The district court further determined the numerous photos of the pool, the
video of the incident, and the testimony provided sufficient evidence for jury
deliberations. We agree. Because the jury had sufficient evidence before it, we
find no abuse of discretion in the district court’s denial of the jury’s examination
request.
IV. Conclusion
Since the 2016 inspection testimony tended to make more probable the
compliance of the pool’s steps and because no unfair prejudice resulted, we find
no abuse of discretion. In addition, we find the trial court’s denial of a jury
examination was well reasoned and was not an abuse of discretion when
considering the evidence the jury had available to consider.
AFFIRMED.