IN THE COURT OF APPEALS OF IOWA
No. 16-1079
Filed July 19, 2017
JEANNE ELIZABETH GRIMM,
Plaintiff-Appellant,
vs.
CARLI RAE CHILCOTE and TIMOTHY DAVID CHILCOTE,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David P.
Odekirk, Judge.
Jeanne Grimm appeals the jury’s verdict in a tort suit based on a vehicle
accident. REVERSED AND REMANDED FOR NEW TRIAL.
Jay A. Nardini of Nardini Law Office, Cedar Falls, for appellant.
Gary D. Goudelock, Jr. of Idleman & Goudelock, Des Moines, for
appellees.
Heard by Danilson, C.J., and Potterfield and Bower, JJ.
2
DANILSON, Chief Judge.
Jeanne Grimm appeals the jury’s verdict in this vehicle-collision suit
against driver Carli Chilcote and the owner of the vehicle, Timothy Chilcote.1
Jeanne contends the $7027 verdict is inadequate, fails to do substantial justice
between the parties, and asserts an error in giving a jury instruction not
supported substantial evidence resulted in prejudice.
Jury instruction 18 was not supported by the evidence and prejudicially
introduced an improper legal theory to the jury. A new trial on the scope and
amount of damage caused by the admittedly negligent conduct is required.
I. Background Facts and Proceedings.
At about noon on Saturday, November 17, 2012, Jeanne was driving her
2003 Chevy S10 four-door extended cab pickup, which weighed about 3600
pounds. Jeanne had been traveling about forty-five miles per hour but had to
slow to a near stop to allow the vehicle in front of her to turn into a private drive.
Jeanne was then rear-ended by sixteen-year-old Carli, who was driving her
father’s 1990 Chevrolet K1500 pickup truck, which weighed about 4200 pounds
and had a snowplow-mount attachment on the front of the truck and a lift gate on
the rear. Carli believed she was traveling about ten miles per hour at the time of
impact. When her father, Timothy, arrived at the scene, he observed the two
trucks had come to rest about two feet apart.
Before the collision, Jeanne was physically active, had full use of her
body, and could lift heavy items without pain. Jeanne described the impact of
1
Because more than one party has the same last name, we will refer to all by their first
names in the remainder of this opinion.
3
being hit as “very jarring,” “[v]ery startling,” and noted “it threw me forward and
my seatbelt caught and my head kind of snapped back and hit the head rest.”
Jeanne stated the collision moved her truck forward about two feet. Jeanne did
not have any pain immediately following the impact. Later that evening,
however, Jeanne developed a headache and neck pain. By the following
morning (Sunday) the headache had worsened and Jeanne described her neck
as “very stiff Sunday morning . . . and just got progressively worse during the
day.” She has had intermittent pain and treatment since. The cost to repair
Jeanne’s truck was $2063.64.2
Jeanne filed suit against Carli and Timothy for personal injuries suffered
by Jeanne arising out of the November 17, 2012 motor-vehicle collision. The
Chilcotes did not deny liability but contested the extent of Jeanne’s damages.
The case was tried to a jury between March 8 and March 14, 2016. Jeanne’s
objection to jury instruction 183 was overruled. The jury returned a verdict in
favor of Jeanne for $7027, awarding $1625 for past pain and suffering, $2000 for
the “past loss of fully body [sic],” $3000 in past medical expenses, and $402 in
past lost wages. They awarded no future damages.
Jeanne filed a motion for a new trial, contending the damages were
inadequate and failed to do substantial justice. She also argued instruction 18
should not have been given and was prejudicial. The motion for new trial was
overruled. Jeanne appeals.
2
Jeanne received an employee discount on repair services.
3
Instruction 18 provided: “lf you find Jeanne Elizabeth Grimm was injured by another act
after this incident, she cannot recover for any later injury or aggravation of injury not
caused by this incident.”
4
II. Scope and Standard of Review.
Our review of a district court’s ruling on a motion for new trial depends
upon the grounds raised in the motion. Bryant v. Parr, 872 N.W.2d 366, 375
(Iowa 2015). If the motion for new trial was based upon a discretionary ground,
we review the court’s ruling for an abuse of discretion. Clinton Physical Therapy
Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006).
On the other hand, if the motion was based on a legal question, we review the
court’s ruling for errors of law. Id.
We review challenges to jury instructions for the correction of errors at
law. Sleeth v. Louvar, 659 N.W.2d 210, 213 (Iowa 2003). We will not reverse a
verdict due to an erroneous instruction unless the error was prejudicial. Waits v.
United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). Instructions may be
considered erroneous if they contain a material misstatement of the law, are not
supported by the evidentiary record, or are conflicting and confusing. Id. at 575.
“When we weigh the sufficiency of the evidence to support a requested
instruction, we review the evidence in the light most favorable to the party
seeking the instruction.” Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819,
824 (Iowa 2000).
III. Discussion.
Jeanne asserts the trial court abused its discretion in denying her motion
for new trial because the jury awarded inadequate damages, the verdict failed to
administer substantial justice, and the verdict was not supported by sufficient
evidence. She also contends the court erred in giving instruction 18. We find the
two issues are intertwined and not easily discussed separately.
5
A. Motion for New Trial. A new trial may be granted under Iowa Rule of
Civil Procedure 1.1004(4) where there is “[e]xcessive or inadequate damages
appearing to have been influenced by passion or prejudice.” “The district court
has considerable discretion in ruling upon a motion for new trial based upon the
ground that the verdict was inadequate.” Fisher v. Davis, 601 N.W.2d 54, 57
(Iowa 1999).
A district court also has broad, but not unlimited, discretion to determine
whether a jury’s verdict effectuates substantial justice between the parties. Iowa
R. App. P. 6.904(3)(c); see also Estate of Hagedorn ex. rel. Hagedorn v.
Peterson, 690 N.W.2d. 84, 87 (Iowa 2004). We review the trial court’s decision
about whether the verdict administers substantial justice for an abuse of
discretion. Hagedorn, 690 N.W.2d at 87. A court abuses its discretion when its
ruling is “clearly untenable or to an extent clearly unreasonable.” State v. Wilson,
878 N.W.2d 203, 210-11 (Iowa 2016). An erroneous application of the law by the
district court is clearly untenable. Id. at 211.
“If uncontroverted facts show the amount of the verdict bears
no reasonable relationship to the loss suffered, the verdict is
inadequate.” Thus, the adequacy of a damage award depends on
the facts of the particular case. If the damages are inadequate, the
trial court must either grant a new trial or, if appropriate, grant an
additur.
Pexa v. Auto Owners Ins., 686 N.W.2d 150, 162 (Iowa 2004) (citations omitted).
There is a distinction between proof of the fact that damages have been
sustained and proof of the amount of those damages. Olson v. Nieman’s Ltd.,
579 N.W.2d 299, 309 (Iowa 1998). In Iowa, the plaintiff bears the burden of
establishing a claim for damages with some reasonable certainty and for
6
demonstrating a rational basis for determining their amount. Conley v. Warne,
236 N.W.2d 682, 687 (Iowa 1975); Hammes v. JCLB Props., LLC, 764 N.W.2d
552, 558 (Iowa Ct. App. 2008).
Jeanne notes she had never injured her neck or her right shoulder prior to
November 17, 2012, nor had she been in a motor vehicle collision. Her
physician, Dr. Matthew Smith, indicated he had seen Jeanne occasionally over a
two-year period prior to the collision and Jeanne did not present complaints of
neck or shoulder pain. Jeanne then saw Dr. Smith on Monday, November 19,
2012. Objective notes state she had a good range of motion of her neck with
some tightness (muscle spasm) and a lot of diffuse musculoskeletal tenderness
along her neck muscles. His assessment was “neck pain/MVA [motor vehicle
accident]/whiplash.” He explained to Jeanne the method by which one suffers a
whiplash type injury in a rear-end collision and told her to take three ibuprofen at
a time three to four times a day and use ice on her neck for two weeks followed
by heat for two weeks. He prescribed a muscle relaxant, Flexeril, for her to take,
and told her to come back in two weeks.
Dr. Smith next saw Jeanne on November 30 for follow up of her neck pain,
and she was still having sharp pain in her neck and right shoulder. He ordered
her to undergo physical therapy at Accelerated Rehabilitation where she started
on December 5. Dr. Smith hoped a course of physical therapy would clear up
Jeanne’s problem, noting approximately ninety percent of patients who have
neck pain will get a good resolution in six weeks, about ten percent do not.
On December 6, 2012, after her first physical-therapy treatment, Jeanne
was seen by Dr. Smith’s partner, Dr. Musgrave. Jeanne reported her physical-
7
therapy treatment the night before had left her with a very painful and stiff neck.
Physical examination showed very limited range of motion of her neck and a very
tender area right at C7, at the base of her neck, with muscle spasms in her right
side neck muscles. Dr. Musgrave ordered an X-ray of her neck, prescribed a
narcotic pain pill, Vicodin, and told her to not have physical therapy for a few
days. Her X-ray was negative for any fracture.
Dr. Smith next saw Jeanne on December 13 and told her to continue with
her conservative treatment of muscle relaxers, anti-inflammatories, pain pills, and
physical therapy. If she had no improvement, then he would consider ordering
an MRI, which would show more detail than an X-ray.
Dr. Smith again saw Jeanne on January 16, 2013. Jeanne reported she
was doing a little better and having some good days with no pain. She had one
more therapy session left with Accelerated Rehabilitation. Dr. Smith encouraged
her to get off the pain medications and the muscle relaxers, which could be
masking the pain, and to see how she felt and to come back in six months or
sooner if she continued to have pain. He also referred her to a massage
therapist to try and loosen up her muscles. He said muscle spasms are nothing
a person can fake.
Jeanne began seeing a licensed massage therapist at Allen Hospital, Pam
McKinney, on January 31, 2013.4 McKinney noted Jeanne had much decreased
range of motion, especially on the right side, and very hypertonic tissues.
McKinney testified a normal muscle is able to contract and then relax, but when
4
The charges for massage therapy set by Allen are $41 for a half hour and $61 for a full
hour. Her health insurance did not cover massage therapy.
8
the muscle is hypertonic it contracts and stays contracted. Jeanne went to
McKinney about once a week and would get good relief from each treatment but
the relief was temporary.
Near the end of March, Jeanne tried extending the massages to every two
weeks, but Jeanne’s neck muscles were even more knotted and hypertonic.
Jeanne found it more helpful to be seen once a week, which increased the cost
for her. McKinney testified there was an area at the base of Jeanne’s neck that
when touched produced a “zinging” shock sensation. McKinney opined the
zinging sensation is caused by a nerve being pressured by the hypertonic
muscles. McKinney was herself in a car accident on May 30, 2013, and could
not treat Jeanne so she referred her to a physical therapist, Dr. Jodi Reyerson.
On June 11, 2013, Jeanne went to see Dr. Smith complaining of neck
pain. His assessment was continued pain status post motor-vehicle accident.
He referred her to get an MRI of her neck, which indicated some mild arthritis in
her neck and a mild bulging disc at C5-C6. Dr. Smith also prescribed a second
course of physical therapy at Accelerated Rehabilitation, which Jeanne attended
from June 12 to August 1, 2013.
Jeanne attended sessions with Dr. Reyerson twenty-five times at $70 per
session between July 17, 2013, and March 5, 2014,5 and five times at $80 per
session between September 2015 and February 2016. Dr. Reyerson does not
accept insurance, and Jeanne paid for treatment out of pocket.
5
Dr. Reyerson took a sabbatical, closing her practice from March 2014 to September
2015.
9
Dr. Reyerson treats a client’s joints and nervous system. When Dr.
Reyerson first saw Jeanne in July 2013, she had limited mobility of her neck, a
forty-percent deficit of her cervical range of motion, “pretty significant pain” at the
end of the range, and a “really rigid” neck. Testing indicated nervous system
irritability and lymphatic congestion, which “you see . . . with soft tissue injury
commonly.” Dr. Reyerson testified:
The first thing I did with [Jeanne] is called primal reflex
release technique and that basically works with [the] primitive
reflexes that we all have. This is the nervous system quieting
technique that I use and then I used mechanical link which is a soft
tissue release technique and craniosacral therapy. I moved the
deep soft tissues of the brain and the spinal cord. And then
everything resolved really well that day and that day I was really
encouraged. I thought I was [Jeanne’s] answer after almost a year
of injury.
....
. . . Her range of motion normalized and we were both pretty
surprised and so I thought that I would be done with [Jeanne] in
about six sessions and that she would be pain free and able to
resume her activities without problems.
But that did not occur. Jeanne would have decreased pain and improved posture
and mobility with a treatment but would again have tenderness of the neck and
stiffness upon return. Dr. Reyerson testified the “explanation” for only temporary
relief is Jeanne has “ongoing injury, injury that’s not fully recovered.”
Dr. Smith referred Jeanne to Dr. Frank Hawkins, who is board certified in
pain medicine and provides services at Allen Pain Clinic. Dr. Hawkins first saw
Jeanne on November 4, 2013. He testified that he had treated her multiple times
since that date and her problem has always been right-sided neck pain. Dr.
Hawkins performed a physical exam of Jeanne, which revealed tenderness on
palpation of her lower cervical spine, and exquisite tenderness on palpation over
10
the right lower cervical facets that actually made her pull away. She had no
tenderness on palpation over the upper cervical facets on either the right or left
side and all of her left-sided facets were normal. She had limited range of motion
with flexion and extension secondary to pain and some limited rotation to the
right, less to the left. They began with conservative treatment of flector pain
patches, then diagnostic cervical facet injections, then steroid injections into the
C6-C7 facet joints, and eventually, on December 9, 2013, right-sided multilevel
radiofrequency cervical median branch nerve ablation. Dr. Hawkins explained to
the jury that radiofrequency utilizes sound waves to create heat in the neck tissue
to burn the area around the facet nerve to ablate or stop it from sending pain
signals to the brain. Jeanne again had ablation procedures on August 14, 2014;
March 5, 2015; and December 28, 2015.6 Dr. Hawkins submitted a written report
in which he states Jeanne’s recurrent neck pain is related to the trauma
sustained as a result of the rear-end collision, she likely had some pre-existing
asymptomatic degenerative disc disease, she probably would not have been
seen at the pain center had it not been for the collision, and he believes she will
require recurrent care for the remainder of her life.
On April 8, 2014, Dr. Smith wrote the following in his records:
I originally saw her for MVA on November 19th, 2012. She was a
seat-belted driver in an S10 who got hit from behind while slowing
down by a full-sized truck. Air bag did not deploy. She did not get
knocked out. She didn’t have any pain at the scene; but over the
hours prior to seeing me, she had some stiffness and pain.
She started with conservative measures with ibuprofen and
Flexeril, heat and ice. Two weeks later she was still having pain, so
6
Jeanne’s insurance covers a portion of the ablation procedure but only if performed
every six months.
11
we got her into physical therapy. This was followed by massage
therapy. Unfortunately, she continued to have problems.
She did have an MRI done that did not show any significant
acute changes but a lot of chronic changes. She had no pain at all
prior to the accident. Saw therapy again.
I last saw her on February 13th, 2014. At that time she was
having 1 out of 10 pain, which was new for her since the accident.
Despite the MRI findings, she had no pain. She had an occasional
flare-up. I told her it will probably be lifelong. She has been doing
the home exercises, and again she went through therapy,
massage, as well as injections by the pain clinic.
In my opinion, [Jeanne’s] neck pain, with a high degree of
medical certainty, was a result of the trauma she received in a
motor vehicle accident. She is also more likely now, with a high
degree of medical certainty, that her treatments as outlined above
would not have been necessary but for the injury suffered by her
and arriving out of the motor vehicle accident.
In my opinion, it is more likely than not, with a high degree of
medical certainty, that she has suffered a permanent injury with the
pain now 1 out of 10 from her baseline of no pain. That will also
continue to affect her periodically with acute flares for the rest of
her life.
During those bouts of acute flares in the future, which are
more than likely resulting from her motor vehicle accident, she will
require periodic future and medical treatment, physical therapy
treatment, and massage therapy or other treatment. I anticipate
this could be one to two times a year, lifelong, probably requiring a
medical visit, medication, physical therapy, plus or minus injections.
Those costs I do not know.
McKinney again treated Jeanne beginning on April 29, 2014. McKinney
saw Jeanne about every two weeks, and Jeanne would get some temporary
relief—increased range of motion and decreased pain. McKinney believes
Jeanne would benefit from treatment every week if she could afford it. McKinney
testified more frequent treatment would allow Jeanne to better manage her pain,
which would allow her to keep working.
When Dr. Reyerson reopened her practice in September 2015, she again
treated Jeanne. Dr. Reyerson testified Jeanne’s
12
condition was fairly similar to when we had quit treating in March of
2014. She was still pretty limited in her activity levels and had, you
know, fairly often or fairly consistent exacerbation of symptoms. If
she lifted too much, and when I say she’s lifting too much or doing
too much activity, the things she’s doing are not excessive. They’re
day-to-day activities; for instance, yard work, lifting grandchildren,
doing things that all of us want to do so, you know, her condition
was pretty similar. The tenderness that she exhibited at the end of
our series in March was there at the time in September that I
started treating her again.
Dr. Reyerson stated Jeanne continues to have a point of “exquisite tenderness”
on her neck—“anywhere from C4 to C7”—she believed to be a nerve injury, and
Jeanne will continue to need ongoing treatment.
Jeanne’s Exhibit 1 was submitted by agreement on the last day of trial,
listing total amounts that had been paid for medical treatment at Allen Hospital
($17,768.72), Cedar Valley Medical Specialists ($6227.37), and Accelerated
Rehabilitation ($0.00), as well as itemized medical expenses paid by Jeanne for
Dr. Matthew Smith ($903), Dr. John Musgrave ($88), Allen Hospital Massage
Therapy ($2422), Jodi Reyerson Physical Therapy ($2070), and Walgreens
($143.81). Total medical expenses paid by Jeanne and her auto and health
insurance carriers were $28,832.90, which was the amount requested that the
jury award for past medical expenses. She argues that, in light of the evidence,
the jury’s award of $3000 for past medical expenses bears no reasonable
relationship to her losses.
The Chilcotes assert the jury is free to accept or reject any or all of the
evidence on the issue of damages or any other issue. The Chilcotes point out
their expert witness, Dr. Charles Bain, an accident reconstructionist (board
certified in Canada) with training in emergency medicine and engineering,
13
testified he investigated and reconstructed the collision here. Dr. Bain
determined that, at the instant of impact, Carli’s vehicle was traveling 2.8 miles
per hour faster than Jeanne’s, the impact increased Jeanne’s vehicle speed “by
two and a half miles an hour,” and
[i]n a vehicle like this, you need accelerations of around two and a
half or greater G for the head rest to move quickly enough where
it’s going to contact the head, because the neck hasn’t had a
chance to drag the head forward. At 1.6 G in this event, this is
such a low speed event that the head is not going to lag behind
long enough for the head rest to contact it, so the neck can easily
generate the forces to pull the head forward. So at this magnitude
of acceleration, the head rest is not coming forward quickly enough
to contact the back of the head, but it’s such a low magnitude event
that the head rest doesn’t really matter because it's bordering on a
trivial event.
Dr. Bain testified studies showed that collisions like the one here do not
cause facet-mediated pain. He stated, “You’re not going to injure the facet joints
in this type of event.” Dr. Bain testified further Jeanne “wasn’t hurt from the
forces that she was subjected to. She may have reflexively startled and tensed
up and sustained a mild muscle strain, a reflexive muscle strain. That would be
the injuries she sustained from this event.” He further opined that mild muscle
strain “gets better very, very quickly.”
The Chilcotes maintain that, “[a]lthough the opinions regarding the exact
speed at the time of impact varies within a narrow range, all parties agree this
was a low-speed impact”; Jeanne’s experts and the Chilcotes’ expert agreed
ninety percent of patients involved in such accidents recover in less than six
months; and Jeanne’s medical records “consistently indicated that she had the
most minimal amount of pain that was ratable.” They argue the jury could
conclude that the minor impact collision resulted in only minor injuries to Jeanne.
14
The district court ruled:
The court finds that the jury likely did not find the plaintiff’s
evidence credible on the issues concerning the extent of damage
caused by defendant Carli Chilcote’s negligence. The record
contained substantial evidence, when viewed as a whole, showing
that the collision involved a very low speed impact. The record also
contained substantial evidence, when viewed as a whole, to
support the award of damages made by the jury. The court finds
that the jury’s damage award bears a reasonable relationship to the
evidence presented. This is especially true in light of the testimony
by Dr. Bain, whose testimony if believed by the jury would provide
ample support for the verdict that was returned. For instance Dr.
Bain’s testimony refuted testimony offered by the plaintiff
concerning damage to the plaintiff’s vehicle. Dr. Bain also testified
regarding determination of the relative speed of the vehicles
through testing. This testing allowed him to determine the forces
on the plaintiff’s body resulting from the collision. Dr. Bain’s
testimony, if found credible by the jury, would support a conclusion
that the collision did not cause the extent of damages plaintiff
claims, but rather that she sustained a muscle strain of a mild
nature. The court does not believe that the jury engaged in mere
speculation concerning past medical damages. The court does
believe the jury used the evidence, including but not limited to Dr.
Bain’s testimony, it found most believable in arriving at an
approximation of the plaintiff’s past medical expenses. Giving the
jury the right to accept or reject whatever portions of the testimony
and evidence it chose, the court finds that the record as a whole
contains substantial evidence supporting a finding that the verdict
does substantial justice between the parties. The court also finds
the jury verdict adequately compensates the plaintiff for the
damages the jury found were caused by defendant Carli Chilcote’s
negligence. Finally, the court does not find any evidence that the
jury’s verdict was the result of passion or prejudice.
(Emphasis added.)
We have emphasized the court’s finding as to the adequacy of the
damages because it presumes the jury has found only a portion of the
uncontested medical expenses “were caused by defendant.” This necessitates a
discussion of the jury’s instructions as to causation and the scope of Carli’s
liability for her admittedly negligent conduct.
15
B. Jury Instructions. The district court submitted several instructions
concerning the scope of liability. The jury was instructed Jeanne must prove
Carli’s admitted fault “was a cause of” Jeanne’s damages. Instr. No. 10. The
jury was also instructed, “The conduct of a party is a cause of damage when the
damage would not have happened except for the conduct.” Instr. No. 11.
Instruction No. 167 (the so-called “eggshell plaintiff” instruction) provided
further:
lf Jeanne Elizabeth Grimm had a pre-existing condition
which made her more susceptible to injury than a person in normal
health, then the defendant is responsible for all injuries and
damages which are experienced by plaintiff proximately caused by
defendant’s actions, even though the injuries claimed produce a
greater injury than those which might have been experienced by a
normal person under the same circumstances.
And an instruction informed the jury the defendant was liable for damages
caused by the aggravation of a pre-existing condition.
Over Jeanne’s objection,8 the court also instructed the jury: “lf you find
Jeanne Elizabeth Grimm was injured by another act after this incident, she
cannot recover for any later injury or aggravation of injury not caused by this
incident.”
7
This instruction appears to be based on Iowa Uniform Jury Instruction 200.34.
8
Plaintiff’s counsel argued instruction 18 was not warranted:
[T]here was no evidence in the record that Ms. Grimm had been injured
by another act after this motor vehicle collision and it says that if she was
injured by another act, she cannot recover from any later injury or
aggravation of injury not caused by this incident. And I don’t think there’s
been any testimony of any intervening incident that injured her, no other
motor vehicle collision, no slipping on the ice, no falling down the stairs,
no doing anything. Now, there’s been testimony that her daily living
activities at times aggravate her injury that she has, but that’s not a
separate incident or separate action separate from what flows from the
fact that she was injured in the motor vehicle collision.
16
Jeanne claims there is no evidence she suffered any injuries by another
act subsequent to the November 2012 automobile accident. The Chilcotes
argue, however, there was evidence presented during the trial that Jeanne
reported to her healthcare providers that she had been pain free until she
engaged in activities such as shoveling snow, sleeping wrong, or putting on a
necklace, at which point her pain levels increased. They also note she reported
low back pain on April 29, 2014, which was different from her earlier treatment for
neck and shoulder pain. They contend that the jury instruction is warranted
under “[a]ny of these [complaints] alone.” We disagree.
Instruction 18 is based on Iowa Uniform Jury Instruction 200.33, which is
entitled “No Recovery for Second Injury” and provides: “If you find (plaintiff) was
injured by another act after this incident, [he] [she] cannot recover for any later
[injury] [aggravation of injury] not caused by this incident.” The uniform
instruction cites as authority Becker v. D & E Distributing Co., 247 N.W.2d 727
(Iowa 1976), and Waterloo Savings Bank v. Waterloo, Cedar Falls & Northern
Railway, 60 N.W.2d 572 (Iowa 1953).
The Waterloo Savings Bank case involved a plaintiff who suffered a hip
fracture from a fall on a city bus and later experienced an aggravation of a pre-
existing symptomatic serious heart and lung condition. 60 N.W.2d at 574. In that
case, the court stated:
Defendant’s liability is limited to compensation for injuries caused
by its own acts of negligence, and not for injury, suffering, or
impaired health due to other causes. Clark v. Sioux Cnty., 159
N.W. 664[, 666 (Iowa 1916)]. How much of plaintiff’s trouble after
the accident was due to her previous ill health, how much to her fall
in the bus, was for the jury to say.
17
The facts show plaintiff was in a state of dangerous shock
for some time after the accident, and of severe shock perhaps for a
week. She suffered a linear fracture of the hip. She was confined
to the hospital for seventy-two days. She had bruises on her ribs
and complained of considerable pain in her neck. Her heart and
lung trouble was aggravated, temporarily at least, by the accident.
Id. at 578-79.
Becker involved a plaintiff injured in 1969 in a two-vehicle collision who
later, in 1973, had a second injury when he dropped a sixty-pound weight on his
left foot. 247 N.W.2d at 728. The Becker court concluded:
Finally, we consider the effect of Becker’s subsequent foot
injury in 1973. The general rule holds a defendant cannot be held
liable for injuries sustained after his negligence. . . . Exceptions
arise in the case of independently acting tort-feasors joined as
defendant where damages cannot be apportioned, . . . and where
the subsequent injury-producing act is a sequela of the first, Cross
v. Hermanson Bros., 16 N.W.2d 616, 617 (Iowa 1944); see
Cardamon v. Iowa Lutheran Hosp., 128 N.W.2d 226, 233-34 (Iowa
1964); Phillips v. Werndorff, 243 N.W. 525, 526 (Iowa 1932); 22
Am. Jur. 2d Damages § 115, at 167-68; Annot., Proximate Cause:
Liability of Tortfeasor for Injured Person’s Subsequent Injury or
Reinjury, 31 A.L.R.3d 1000 (1970).
If the evidence were uncontroverted that Becker’s present
foot condition resulted in whole or in part from the 1973 incident,
the general rule and none of the exceptions would apply because
Becker’s subsequent act in dropping a weight on his foot clearly
would have no causal connection with the alleged negligence of
defendants.
But here, as we have already indicated, the evidence was
not uncontroverted. Dr. Marr twice denied the weight-dropping
accident had any connection with Becker’s present foot condition.
Following the authorities set out above and leaving for the jury the
weight and credibility of the testimony, including contradictions and
inconsistencies in the testimony of a particular witness, we hold the
issue was properly submitted. Under the instructions submitted the
jury could have found the 1973 injury had no relationship to
Becker’s present complaints.
Id. at 731-32.
18
This court upheld the use of an instruction based on uniform instruction
200.33 in one instance. Bruns v. Hanson, No. 06-1553, 2008 WL 680228, at *3-
4 (Iowa Ct. App. Mar. 14, 2008). But we did so—without discussion—based on
the trial court’s finding and the parties’ concession there existed an intervening
cause.9 Id. at *4 (noting “because there is evidence that there has been medical
treatment for something else, unrelated to the accident and it’s conceded, I think
they need to know that that’s what the law is” (emphasis added)).
In the case before us, we must address whether there is sufficient
evidence of a subsequent act causing additional or different injury to warrant the
instruction. Because the instruction provides a means to limit the defendants’
liability, they had the burden to present sufficient evidence to support the
instruction. See Graber v. City of Ankeny, 616 N.W.2d 633, 642 (Iowa 2000)
(“[T]he burden of proof on an issue is upon the party who would suffer loss if the
issue were not established.” (quoting Beyer v. Todd, 601 N.W.2d 35, 41 (Iowa
1999))).
9
As explained in the Restatement (Third) of Torts: Physical and Emotional Harm § 34,
comment b:
The terminology used by the first and Second Restatements of
Torts and courts includes “intervening forces (or acts),” which consist of
acts, omissions, or other forces that occur after the tortious conduct of the
actor and that are other than the background causes that ordinarily exist.
A “superseding cause” is an intervening force or act that is deemed
sufficient to prevent liability for an actor whose tortious conduct was a
factual cause of harm. The “act” may be tortious or entirely innocent.
This terminology has been widely adopted, although a number of courts
employ the term “supervening” cause instead of “superseding” cause.
These terms are only conclusory labels. A reasoning and
normative process is required in order to separate background causes
from intervening forces and to decide which intervening forces under what
circumstances are superseding, thus avoiding the liability of an actor who
engaged in tortious conduct.
19
The defendants point to Jeanne’s “report[] to her health care providers that
she had been pain free until she did various activities such as shoveling snow,
sleeping wrong, or putting on a necklace.” While there are notations in Jeanne’s
medical records of increased pain after activities, there is nothing in this record of
a second incident or subsequent act that would warrant instruction 18.
In Haumersen v. Ford Motor Co., 257 N.W.2d 7, 15 (Iowa 1977), our
supreme court explained:
A superseding cause “is an act of a third person or other
force which by its intervention prevents the actor from being liable
for harm to another which his antecedent negligence is a
substantial factor in bringing about.” Restatement (Second) Torts
§ 440; see Schnebly v. Baker, 217 N.W.2d 708[, 729] (Iowa 1974).
In order for an intervening act or force to relieve an individual from
liability, it must not have been a normal consequence of his acts or
have been reasonably foreseeable. . . .
....
We think Mrs. Woodford’s inaction cannot be considered
superseding as a matter of law. The following statement is
applicable from Fredericks v. American Export Lines, Inc., 227 F.2d
450, 453 (2nd Cir. 1955):
That the intervening purchaser will remain
passive or otherwise fail to do what he ought to do to
prevent the course of events, is a reasonably
foreseeable consequence of the original wrongdoing.
Moreover, this is not a distinction based upon mere
passivity but rather upon whether or not the ultimate
fact or occurrence is reasonably foreseeable. This is
a far cry from the doing of something or the refraining
from doing something constituting an improbable,
independent, intervening cause, which is a
superseding cause and breaks the sequence.
See also Restatement (Second) Torts, §§ 393, 396; Prosser, Law
of Torts, § 102 at 670 (4th ed.). Under particular facts, intervening
conduct may be so manifestly superseding in nature as to cut off
liability for a defendant’s prior actions as a matter of law. But when
facts are in dispute or room exists for reasonable difference of
opinion as to whether the conduct is intervening, the question is for
the jury.
20
(Emphasis added.) See also Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349–50
(Iowa 1991) (stating “the actor may be relieved of liability if a court finds that the
later-occurring event is such as to break the chain of causal events between the
actor’s negligence and the plaintiff’s injury”), abrogated on other grounds by
Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009).
In Thompson, our supreme court adopted section 7 of the Restatement
(Third) of Torts: Liability for Physical Harm. 774 N.W.2d at 839 (then a tentative
draft, officially adopted 2010) [hereinafter Restatement (Third)]. And in Mitchell
v. Cedar Rapids Community School District, 832 N.W.2d 689, 699 (Iowa 2013),
the court discussed the “scope-of-liability analytical framework” of sections 29,
30, and 34 of the Restatement (Third).
Comment “g” of section 29 of the Restatement (Third) states:
The first and Second Restatements of Torts were influenced
by causal thinking that has long been repudiated. This
Restatement, by contrast, treats factual cause and scope of liability
separately for several reasons. The most important is that
decoupling the two concepts permits the court and factfinder to
focus on the issue that is truly in dispute without having to invoke a
doctrine that is not in dispute. Even when both issues are in
dispute, clearly differentiating the predominantly historical question
of factual cause from the evaluative question of scope of liability
makes for a clearer, more focused analysis. Finally, separation
enables courts to employ instructions that avoid causal language
when explaining scope-of-liability limitations to the jury.
Thus, common instructions on proximate cause that employ
language requiring that the tortious conduct cause the harm in a
“natural and continuous sequence,” sometimes accompanied with
the additional requirement that the causal sequence “be unbroken
by any efficient intervening cause,” do not reflect the risk standard
adopted in this Section. Nor do these instructions reflect the
limitations on scope of liability, provided in § 34, when there are
intervening causes. Comment d contains an explanation of the
scope of liability adopted in this Section, as well as language from
which appropriate jury instructions might be crafted that reflect the
risk standard.
21
Section 34 of the Restatement provides: “When a force of nature or an
independent act is also a factual cause of harm, an actor’s liability is limited to
those harms that result from the risks that made the actor’s conduct tortious.”
Commentary explains the development of tort jurisprudence:
The extensive rules for when intervening acts become
sufficient to “supersede” an actor’s earlier tortious conduct were
developed at a time when the prevailing jurisprudence was that law
was scientifically based and correct legal principles could be
deduced through logical and objective inquiry. Consistent with this
philosophy, the “proximate cause” of any event could be
determined through a neutral, scientific inquiry. Rules regarding
which intervening acts prevented prior acts from being the cause of
subsequent harm were integral to this inquiry. Although criticism of
this legal scientism had begun before the first two volumes of the
Restatement of Torts were completed in 1934, the Restatement
reflected this jurisprudential view. It treated factual cause and limits
on the scope of liability as a single inquiry and contained extensive
provisions regarding which intervening acts could and could not be
superseding causes. See Restatement of Torts §§ 439-452. The
first Restatement’s treatment of intervening and superseding
causes was carried forward with but very modest changes in the
Restatement Second of Torts. Despite the continuing influence of
the Second Restatement of Torts, much of the formalism of its
treatment of superseding causes has been supplanted in the latter
part of the 20th century with a recognition that there are always
multiple causes of an outcome and that the existence of intervening
causes does not ordinarily elide a prior actor’s liability. The advent
of more refined tools for apportionment of liability—comparative
responsibility, comparative contribution, and substantial
modification of joint and several liability—also has undermined one
important rationale for these rules: the use of scope of liability to
prevent a modestly negligent tortfeasor from being held liable for
the entirety of another’s harm when the tortious acts of other, more
culpable persons were also a cause of the harm.
Restatement (Third) § 34 cmt. a.
But employing superseding cause to bar a plaintiff’s recovery
based on the plaintiff’s conduct is difficult to reconcile with modern
notions of comparative responsibility. Indeed, in most cases it
constitutes negating the principles of comparative responsibility and
returning to a regime of contributory negligence as a complete bar
22
to recovery. There may be instances in which the plaintiff’s
intervening conduct produces harm that is different from the harms
whose risks made the defendant’s conduct tortious, but those
cases are sufficiently infrequent that courts should be very cautious
about invoking superseding cause based on a plaintiff’s act to hold
the harm outside the defendant’s scope of liability.
Id. § 34 cmt. c.
We believe these comments suggest instruction 200.33 should be used
only when there is evidence of a subsequent and independent act causing injury
unrelated to any weakened condition caused by the first injury. Here, we agree
with Jeanne there is no evidence Jeanne’s ongoing treatments and damages
were caused by “another act after this incident.” Rather, Jeanne’s harm
remained within Carli’s scope of liability.
In sum, the only disputed issues presented to the jury were the extent of
Jeanne’s injuries caused by Carli’s negligence and the amount of damages.
Instruction 18 permitted the jury to cut off Jeanne’s damages on the basis of acts
both insubstantial and non-superseding in nature. We acknowledge the low-
impact crash, but in light of the extensive evidence of Jeanne’s injury, medical
procedures, medical expenses, and permanent-injury diagnosis, we cannot be
convinced that substantial justice has been accomplished. To conclude there
was no prejudice10 would be sheer speculation on our part. The trial court erred
in giving instruction 18. We reverse and remand for a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.
10
See Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009) (noting an error in
giving an instruction merits reversal if it results in prejudice).