While most property owners in Iowa know they are required to keep their sidewalks clear of ice and snow accumulation, they might not know that they have a responsibility to keep their sidewalks in good repair. Iowa Code § 364.12(d) (2011) requires property owners to maintain the sidewalks adjacent to their property. Some cities have codified this requirement as well. When a property owner fails to fix deficiencies, liability can result for any injuries to others resulting from the poor condition of the sidewalk. That is exactly what happened in this case.
Here, the plaintiff recovered a large verdict against the estate of a ninety-one year old woman who failed to properly maintain the sidewalk adjacent to her home. The plaintiff was injured when she tripped and fell on a raised portion of the sidewalk in front of the defendant’s house during a walk with her cousin on their regular route. As a result of the fall, the plaintiff broke her left elbow and forearm. A few months later the plaintiff’s daughter and attorney visited the area and photographed the portion of the sidewalk where the plaintiff had fallen. By that time, the raised portion of the sidewalk had been ground down so it was more even with the adjoining pads. The ninety-one year old defendant died shortly thereafter. The plaintiff filed suit against the defendant’s estate. The case proceeded to trial.
Plaintiff alleged that the defendant’s negligence in maintaining her sidewalk was the cause of the fall and injuries. Prior to trial, the defendant filed a motion to ask the court to prohibit the plaintiff from displaying the photographs of the sidewalk showing the condition after the sidewalk had been fixed. Typically, evidence that shows a repair having been made after an incident is not allowed to be shown to the jury if its purpose is to prove that the defendant was at fault. The plaintiff argued successfully that the photographs were the only ones available because no photographs were taken of the condition as it existed at the time of the accident. She also argued the images were necessary to show the color of the sidewalk to the jury and the photographic demonstration of the two inch gap between the pads that existed at the time of the accident. The photographs were admitted at trial with a curative instruction from the judge advising the jury to “disregard the fact that a repair was made, as the repair itself may not be considered by you as evidence of negligence on the part of Defendant.” The jury also received an instruction prior to deliberations that they could not consider the repair as evidence that the defendant was negligent.
Also at trial, the defendant introduced into the record the plaintiff’s answer to a Gordon v. Noel interrogatory, a sworn written answer to the question raised about how much money she was seeking from the defendant for her injuries. This is a question that plaintiffs are required to answer before trial. She stated that she was seeking between $156,704 and $216,704 from the defendant for this accident. Of this amount, only $11,179 was for medical expenses and $4,525 was to recover lost earnings. The balance was primarily for past and future pain and suffering and the “loss of use” of her left elbow and forearm.
After deliberation, the jury decided both parties were at fault and apportioned the fault as 15% for the plaintiff and 85% for the defendant. The jury awarded $191,916.20 for the plaintiff’s damages, of which $11,916 was for past medical expenses and wages and the remainder was for pain and suffering and loss of use of the left elbow and forearm. The award was reduced by the plaintiff’s 15% of fault, resulting in an award of $163,128.77.
The defendant appealed, arguing that the photographs were improperly admitted. The defendant also argued that the jury award was excessive and not supported by the evidence at trial. The defendant claimed that the jury relied on the plaintiff’s arbitrary figures in her interrogatory to establish their damage award. The appellate court affirmed on both issues.
While the appellate court is unlikely to overturn a jury verdict, one has to wonder about the cumulative effects of the admission of a photograph showing a remedial measure after the plaintiff’s incident combined with a trial against a faceless estate, which seems to be much easier to fault than a ninety-one year old woman sitting in front of the jury. This case also shows the possible dangers to defendants in admitting the plaintiff’s sworn damage claim. The amounts requested might sometimes seem excessive to defense attorneys, but they might establish a range for assessing types of damages that are not able to be decided with any certainty which can seem reasonable to a jury. Maiers v. Gansen, No. 1-1006/11-1167, 2012 WL 469747 (Iowa Ct. App. Feb. 15, 2012).