IN THE COURT OF APPEALS OF IOWA
No. 1-308 / 10-1679
Filed May 25, 2011
RUTH CARTER, Individually and as
Parent and Next Friend of
BRANDON CARTER, A Minor,
DAVENPORT COMMUNITY SCHOOL
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Ruth Carter appeals from a jury verdict in favor of the Davenport
Community School District on the negligence claim she brought for herself and
on behalf of her son. AFFIRMED.
Michael K. Bush of Bush, Motto, Creen, Koury & Halligan, P.L.C.,
Davenport, for appellant.
Rand S. Wonio and Ian J. Russell of Lane & Waterman, L.L.P.,
Davenport, for appellee.
Considered by Eisenhauer, P.J., and Potterfield and Tabor, JJ.
Ruth Carter appeals from a jury verdict in favor of the Davenport
Community School District on her negligence claim she brought for herself and
on behalf of her son. Because the district court did not err in instructing the jury
or in denying the motion for new trial, we affirm.
I. Background Facts and Proceedings.
Brandon Carter has been diagnosed with Foix-Cavany-Marie syndrome, a
degenerative disease of his central nervous system. Brandon is described by his
physician, Daniel J. Bonthius, as a teenager “who has a neurologic disturbance
that has been slowly progressive and that causes him to be quite ataxic [poorly
coordinated] and dysarthric [great deal of difficulty articulating words with his
On July 13, 2006, while attending summer school, fifteen-year-old
Brandon was using his gait trainer (a specialized walker), failed to negotiate a
curb, and fell.
As a result of that fall, Brandon had “several extraoral and
intraoral lacerations,” lost four permanent teeth (one at the accident site and
three in surgery), lost one baby tooth, fractured his maxillary anterior alveolar
bone (the area above the front teeth), and underwent oral surgery.
Ruth Carter (hereinafter “Carter”), individually and as next friend of
Brandon, filed this suit against the Davenport Community School District (District)
alleging Brandon was severely injured while walking outdoors in the company of
his teacher, Sarah McGlynn, an employee of the District.
McGlynn failed to properly supervise Brandon.
At trial, Brandon‟s private duty nurse, Diane Skiles, testified that she was
at school with Brandon on July 13, 2006. Brandon and Skiles had not had a
restful night because Carter was in the hospital. Skiles stated McGlynn insisted
on walking outside with Brandon on July 13, though Skiles objected, saying it
was too hot. Skiles stated she was walking back into the school when she turned
to see Brandon face-down on the ground some twenty to thirty feet away, and
McGlynn standing some five to six feet away from Brandon.
Brandon was “not what I call independent in [his gait trainer].” She explained, “I
hang onto him as well as the trainer itself.” She testified that Brandon was not
able to lift the front wheels of the gait trainer because he had no balance.
Plaintiff‟s expert, Lynda Mayster, the director of hospital and evening
school for the office of special education and support for the Chicago public
schools, testified over the District‟s objection that “when a child is a really
seriously compromised child, the district is absolutely responsible for the child‟s
She testified Brandon‟s Individualized Education Plan (IEP) stated
Brandon required adult supervision at all times, was independent in his gait
trainer outside for up to 100 yards, and required standby assistance. She also
stated Brandon “needed assistance in being supervised to walk appropriately in
his gait trainer.” Mayster testified that “whomever was supervising Brandon at
the time, that you have to hang onto him because he has the ability to just go. . . .
Not really anticipating what the terrain was going to be like.”
Mayster stated she had reviewed Brandon‟s records and summarized the
different versions offered by McGlynn and Skiles as to how Brandon fell:
According to Ms. McGlynn, when they walked out in front of the
school and they walked across the sidewalk, Brandon had to
negotiate─there was a curb there. Brandon did not negotiate this
curb, Ms. McGlynn did not lift his walker over this curb, he─his
wheel, I assume, got caught in the curb. I‟m not quite sure how it
happened, but he did fall forward. The gait trainer was in a reverse
position, meaning all of the equipment and the bars behind him. He
did fall forward and trip over this curb. And according to Ms. Skiles,
she thought that they were following her back into the building. And
when she didn‟t really hear them following her back into the
building, she turned around and saw Brandon on the ground and
she saw Ms. McGlynn standing over him.
Mayster opined McGlynn did not appropriately supervise Brandon on July 13,
2006. The basis for her opinion was that McGlynn
shouldn‟t have taken him out and she should not have taken him on
a surface that he was not familiar with. The terrain was such that if
Brandon walked to the curb and tried to lift his walker over it, he
couldn‟t do it. Ms. Keller, his teacher, says you have to lift the front
wheels. One of his aides said you have to lift the front wheels, walk
two steps and lift the back wheels over a curb. This wasn‟t done.
So there was every opportunity for him to trip and fall and get
injured because the supervision was not adequate.
On cross-examination, Mayster acknowledged that the September 2005
IEP noted Brandon “requires minimal assist in transfers, standby assist in Rifton
gait trainer, verbal and touch cuing to maintain him on task and for safety.”
Standby assist was understood to mean “somebody would be standing by, like
spotting him, making sure that everything was okay. Q. Someone would be
alert, available, nearby, in close proximity to the gait trainer, correct?
Kirk Koster testified he was a paraeducator who had worked with Brandon
in the past.
He testified he had taken Brandon outside on a number of
occasions, but always held onto the gait trainer and did not take Brandon on
Melissa Tolle testified she was physical therapist with the Area Education
Agency (AEA) and had worked with Brandon. She stated standby assist is “one
arm‟s length distance.” She testified as to the meaning of Brandon‟s IEP, which
stated “Brandon requires the close physical proximity of his para[educator] when
he is moving about in the gait trainer.” She explained that the paraeducator
needed to be within “arm‟s distance” “so that you‟re there to grab it if he gets off
task and you‟re able to help him get back on task.”
Bea Flahive was also a physical therapist with the AEA and had worked
with Brandon from 1996 to 2005. She characterized Brandon‟s ability to use the
gait trainer “[w]ith stand-by assistance only for safety reasons, you know, for the
people surrounding him.” She testified that there was no concern that Brandon
was at risk of falling in the gait trainer “[b]ecause he was stable.
independent. He had good ambulation ability, good steppage.” Flahive was the
person who configured Brandon‟s use of the gait trainer in the reverse position
[b]ecause he had the ability to transfer in and out of the gait trainer.
He had enough standing endurance to ambulate that way. He had
enough postural control to be more upright, because when you‟re in
reverse, you have an improved posture ability to increase strength.
It actually provided him better access to more independence, to
tables, sinks, drinking fountains, and the doorways.
Flahive stated that Brandon was capable of negotiating a curb. When asked to
describe that process, she stated, “Well, physically I would have to put the front
wheels up the curb. He would then take two steps. And then I would assist the
back wheels up the curb.”
Nancy Keller was Brandon‟s teacher for five years and described him has
having severe mental and physical disabilities. She testified he used the gait
trainer in reverse configuration and needed to be supervised at all times while
McGlynn testified she taught resource special education classes in the
District from 2005 through 2008. During the summer of 2006, beginning July 10,
McGlynn worked the Extended School Year program for the District. McGlynn
stated she taught Brandon daily for two-hour sessions working on various goals
set out in his IEP. McGlynn read Brandon‟s IEP before she started to work with
him, which included the notation that Brandon was independent in his gait trainer
throughout the building and outside up to 100 yards with standby assistance.
McGlynn stated that during her schooling, she had worked closely with a physical
therapist who dealt with persons with spinal cord injuries and there learned how
to work with someone in a gait trainer.
McGlynn stated she accompanied Brandon on a walk in the school
building on July 10 and saw him negotiate around obstacles left in the hallway
“[s]everal times.” She again walked with Brandon on July 11, this time outside.
Both days, Skiles was present throughout the day, assisted Brandon, and
accompanied them on the walks. McGlynn again walked outside with Brandon
on July 12.
On July 13, McGlynn stated Brandon and she again went for a walk, but
Skiles sat on a bench because she was tired from the night before. They walked
a different route that day to allow Brandon to see cars. She testified:
Well, again, some of the skills that he was working on in his
IEP were functionally related, so learning how to cross the street or
learning to look left or right to ensure your safety. And it‟s
summertime, so nobody is really coming in and out of there. At the
same time we stopped, we looked to make sure nobody was
coming and walked across the sidewalk and up onto the curb that
was right there.
Q. Now this curb─you know, when I think of the normal curb
alongside the roadway, is this curb─ A. Sloped.
Q. ─more sloping than a normal curb? A. Yes.
Q. So tell the jury what happened. You‟re approaching the
curb, and tell us about the accident. A. Okay. We‟re approaching
the curb, and I am walking in front of him, sort of walking
backwards, facing him, and he gets to the curb, has picked up the
walker, gait trainer, has picked up the walker, and I thought had
picked it up all of the way, and hadn‟t. And I think, you know, in an
instant we had both fallen. I tried to catch him. He‟s as big, if not,
I‟m sure at this point, much bigger than me. And I was there to try
to break his fall and did the best that I could to, you know, help him,
catch him, so.
Q. What was the weather like that day? A. I remember it
being sunny and a nice day.
Q. Did you think it was especially hot? A. No.
Q. We‟ve had Nurse Skiles testify that it was 95 degrees
that day. Would you agree with that? A. No. I wouldn‟t have gone
out if it was 95 degrees. [The District offers an exhibit showing the
temperature was 82 degrees at time of the fall.]
Q. Thank you. Sarah, when you went toward that curb with
Brandon, why did you walk with him in that direction and have him
go over the curb? A. Again, I walked as kind of an incentive,
thinking that he would like to see the cars. I was pretty confident
that that would‟ve never, never been a problem. If I didn‟t think that
he could negotiate the curb, I would‟ve never taken him. It
would‟ve just not made sense. So I thought it would be a very easy
walk we could do and turn around and come right back and lighten
the mood a little bit.
Q. Did you feel that you were capable of doing these things
with Brandon during the school day? A. Absolutely.
Q. Why did you feel that you were capable? A. Again, I
had the experience. I saw how well he was able to use it. I felt that
I came into the situation with a background in working with people
who had ambulatory issues or concerns. And like I said, if I didn‟t
feel comfortable with that whole little walk, then I would‟ve never
Q. And if in the IEP there were instructions to hold onto the
walker─ A. Then I would have held on. And when we walked
before, no one ever held onto the walker.
When proposed jury instructions were submitted, counsel for Carter
objected to Instruction 13─“The mere fact an accident occurred or a party was
injured does not mean a party was negligent.” Counsel for Carter argued:
While I recognize this is almost always an applicable generalized
instruction, I think this is one of the rare cases where it is not
applicable, primarily because of the condition of Brandon Carter
being incapable of protecting himself and incapable of exercising
reasonable care, and as a result relied upon his supervising
teacher to provide that reasonable care for him. Further, there was
no evidence in this record that there was any type of independent
force or person that would have contributed to this fall and injury in
the way of an act of God, windstorm, a rainstorm, or a third party
where they came around the corner suddenly and that would
basically exculpate the party supervising Brandon, so I don‟t
believe that Instruction 13 in this particular fact scenario is a─is an
accurate statement of the law.
The District responded that the instruction had been approved by the
supreme court, was a stock instruction, and there was no indication anyone had
acted intentionally. The district court ruled:
I think the standard is reasonable care.
circumstances, if the jury were to believe Ms. McGlynn, the jury
could find that she was within distance to do what an ordinary
person in those circumstances would have done, and that‟s within
reaching distance of the plaintiff. And also if the jury believes she
tried to place herself between the plaintiff and the ground, it‟s up to
the jury as to whether or not reasonable care was exercised in
those circumstances, so the Court will continue to use the
The jury was instructed in Instruction 14 that Carter must prove the
District, through its employee, Sarah McGlynn, was at fault in “one or more of the
following particulars,” that the District‟s fault was the factual cause of plaintiffs‟
damages, and the amount of damages.
The jury answered “No” to the question “Was the Davenport Community
School District at fault?” The district court entered judgment for the defendants.
Carter filed a motion for a new trial claiming the verdict was not sustained
by sufficient evidence, and that the giving of Instruction 13 was in error. See
Iowa R. Civ. P. 1.1004(6), (8). The motion was denied and this appeal followed.
On appeal, Carter argues Brandon‟s fall was foreseeable and easily
preventable, and the jury was required to find the defendant negligent because
Carter also contends the district court abused its discretion in
reading Instruction 13.
II. Standard of Review.
Iowa Rule of Civil Procedure 1.1004(6) authorizes the trial court to grant a
new trial when the verdict “is not sustained by sufficient evidence.” “Because the
sufficiency of the evidence presents a legal question, we review the trial court‟s
ruling on this ground for the correction of errors of law.” Estate of Hagedorn ex
rel. Hagedorn v. Peterson, 690 N.W.2d 84, 87 (Iowa 2004).
We review alleged errors in jury instructions for correction of errors at law.
Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (2009).
A. Sufficiency of the evidence. Carter contends the undisputed facts do
not support a verdict for the defendant. In essence, Carter asserts Brandon
could only have been injured if McGlynn was negligent. We disagree that the
conclusion is required.
Reading the instructions together, the jurors were instructed the plaintiff
had to prove the District was “at fault,” which “means one or more acts or
omissions towards the person of . . . another which constitutes negligence.”
Negligence was further defined as “failure to use ordinary care.” The plaintiff
asserted the District was at fault in the following particulars: “Failure to have a
trained para-professional to supervise Plaintiff Brandon Carter in his gait trainer”;
“Failure to use the gait trainer in the forward configuration”; “Failure to maintain
physical contact and to appropriately spot Brandon while he is in the gait trainer”;
“Failure to lift the front wheels of the gait trainer over the curb”; and “Failure to
assess and assist Brandon Carter‟s safety by allowing Brandon to navigate a
curb rather than using a handicap accessible ramp.”
However, there was
evidence from which a reasonable fact finder could determine there was no
failure to use ordinary care. McGlynn testified she was trained to assist persons
in a gait trainer. More than one witness testified the use of the gait trainer in the
forward configuration was not required and that its use in the reverse
configuration provided the user more accessibility and better posture. Brandon‟s
IEP called for adult supervision and standby assistance, which meant within
arm‟s distance. Nothing in the IEP required constant physical contact with the
gait trainer. The IEP stated Brandon was independent in his gait trainer and
McGlynn stated she had observed Brandon negotiate obstacles prior to July 13,
Although there was conflicting testimony about McGlynn‟s obligations and
the cause of Brandon‟s fall, the jury is ordinarily allowed to settle disputed fact
questions. Cowan v. Flannery, 461 N.W.2d 155, 157 (Iowa 1990). Generally,
questions of negligence are for the jury and it is only in exceptional cases that
they may be decided as a matter of law. Iowa R. App. P. 6.904(3)(j). We do not
believe this is such an exceptional case.
Fact questions were generated
requiring this case to be submitted to the jury. See City of Cedar Falls v. Cedar
Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16 (Iowa 2000) (finding it was a question
for the jury whether one with responsibility of supervising children used ordinary
care). The verdict is the jury‟s finding that Carter failed to carry her burden of
proof. “„It is not for us to invade the province of the jury.‟” Kautman v. Mar-Mac
Cmty. Sch. Dist., 255 N.W.2d 146, 147 (Iowa 1977) (citation omitted). Even if we
were to assume that the evidence might support a finding that the District was
negligent, we cannot say, in view of the conflicting testimony, that the burden
was so strong, so overwhelming, as to compel a finding of negligence as a
matter of law. See Meirick ex rel. Meirick v. Weinmeister, 461 N.W.2d 348, 350
(Iowa Ct. App. 1990). The district court thus did not err in denying Carter‟s
motion for a new trial.
B. The court did not err in giving Instruction 13. “Under Iowa law, a court
is required to give a requested instruction when it states a correct rule of law
having application to the facts of the case and when the concept is not otherwise
embodied in other instructions.” Herbst v. State, 616 N.W.2d 582, 585 (Iowa
“Negligence is fault, and it is the plaintiff‟s burden to prove fault by a
preponderance of the evidence. It is not to be assumed from the mere fact of an
accident and an injury.”
Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008)
(citations omitted). Instruction 13 restates the principles enunciated in Easton:
“The mere fact an accident occurred or a party was injured does not mean a
party was negligent.” The instruction is thus a correct statement of the law. See
The instruction was discussed in Smith v. Koslow, 757 N.W.2d 677, 680
(Iowa 2008), where our supreme court stated,
It is a fundamental tenet of tort law that the fact that a
plaintiff has suffered an injury, without more, does not mean the
defendant was negligent. Instead, to recover for an injury, our law
requires an injured person to establish the existence of a duty of
care, breach of the duty of care, and that the breach was the cause
of the injuries suffered.
. . . [T]he uniform jury instructions authored by the special
committee on uniform court instruction of the Iowa Bar Association
includes an instruction for general negligence cases that
incorporates this general proposition. It provides that the “mere fact
of an accident or injury does not mean a party was negligent.” See
Iowa Uniform Jury Instruction 700.8.
The court went on to state the instruction “reflects a correct statement of the law.”
Smith, 757 N.W.2d at 681. However, the court cautioned “the instruction could
constitute reversible error in a particular case if it would unduly emphasize a
particular theory or otherwise distract the jury in performing its responsibilities to
decide the issues in the case.” Id.
Carter complains this is “a classic case” where the instruction “unduly
emphasiz[es] a particular theory or otherwise distract[s] the jury.”
beyond quoting Justice Hecht‟s dissent in Smith, see id. at 683–84, Carter offers
no analysis why such is the case. To the contrary, the facts here reveal that this
injury could have occurred in the absence of any of the specifications of
negligence, a situation which makes the “mere happening” instruction a proper
statement of the law.
Here, despite Carter‟s acknowledgement that the District was not an
insurer of Brandon‟s safety, her argument on appeal in essence is that the fact
that Brandon suffered an injury while in the District‟s care means the District was
negligent.1 Her expert, Lynda Mayster, testified as much stating, “when a child is
a really seriously compromised child, the district is absolutely responsible for the
The jury was instructed plaintiff had to prove that defendant was at fault,
that the defendant‟s fault was the cause of injury, and damages. It was also
instructed that the “mere fact an accident occurred or a party was injured does
not mean a party was negligent.” The instructions were correct statements of the
law and under the circumstances presented here did not unduly emphasize a
particular theory or distract the jury. We find no error.
Carter states in her brief,
The relationship between the parties was unique. The Plaintiff‟s ward
was under the direct supervision of the Defendant‟s employee, Sara[h]
McGlynn. . . . Despite the supervision by the Davenport Community
School District employee, Brandon fell and seriously injured his face,
mouth and brain. What caused Brandon‟s injury?
. . . Brandon could be injured while being supervised by the
Davenport Community School District employee and no liability would
attach if, and only if, there was another explanation for Brandon‟s fall and
injury which did not include negligent supervision.