MONICA BROWN-KIRKWOOD and ELTON KIRKWOOD, JR., Plaintiffs-Appellees, vs. THE CITY OF CEDAR RAPIDS, IOWA, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-414 / 06-1950
Filed October 24, 2007
MONICA BROWN-KIRKWOOD and
ELTON KIRKWOOD, JR.,
Plaintiffs-Appellees,
vs.
THE CITY OF CEDAR RAPIDS, IOWA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla,
Judge.
The city of Cedar Rapids appeals arguing the issue of municipal immunity
should have been submitted to the jury because a sidewalk is a “road or street”
under Iowa Code section 668.10. REVERSED AND REMANDED.
Mohammad Sheronick, Cedar Rapids, for appellant.
John C. Wagner, of John C. Wagner Law Offices, Amana, for appellees.
Heard by Zimmer, P.J., and Eisenhauer, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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EISENHAUER, J.
In this slip-and-fall case, a jury awarded damages to the plaintiffs based
on injuries sustained in a fall on an icy sidewalk. We conclude the trial court
correctly submitted the issue of the city’s actual or constructive notice of the
sidewalk’s condition to the jury. We reverse and remand, however, because we
conclude the trial court should also have submitted the issue of municipal
immunity to the jury.
I.
BACKGROUND FACTS AND PROCEEDINGS.
On the morning of December 17, 1999, Ms. Monica Brown-Kirkwood fell
on an ice and snow covered brick sidewalk. Brown-Kirkwood was leaving the
Crowne Plaza hotel and walking with three co-workers to her job. Because she
fractured her ankle, an ambulance took her to the hospital. The injuries resulted
in three surgeries and significant mobility limitations during her recovery and
some indefinite physical limitations.
Brown-Kirkwood and her husband sued the city of Cedar Rapids and a
jury verdict was returned in their favor.
notwithstanding the verdict was denied.
The city’s motion for judgment
The city appeals, claiming it was
prejudicial error for the court not to direct a verdict based on Iowa’s statutory
immunity provisions. See Iowa Code § 668.10 (2001). Alternatively, the city
seeks a new trial. Further, the city argues it was entitled to a directed verdict
because the plaintiffs failed to prove the city had “actual or constructive notice” of
the sidewalk’s condition.
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II.
SCOPE AND STANDARDS OF REVIEW.
Our review of the district court’s denial of a motion for judgment
notwithstanding the verdict is for correction of errors at law. Iowa R. App. P. 6.4;
Lynch v. Saddler, 656 N.W.2d 104, 107 (Iowa 2003). We examine the record to
determine whether substantial evidence exists to support each element of the
plaintiff’s claim, justifying submission of the case to the jury. Lynch, 656 N.W.2d
at 107.
In making this analysis, we review the evidence in the light most
favorable to the non-moving party.
Iowa R. App. P. 6.14(f)(2); Lynch, 656
N.W.2d at 107. Our review of the trial court’s exclusion of a requested jury
instruction is for correction of errors at law. Iowa R. App. P. 6.4; Lynch, 656
N.W.2d at 107.
III.
MERITS.
A.
IMMUNITY.
Defendant contends it was entitled to a directed verdict under the
immunity provisions of Iowa Code section 668.10:
In any action . . . a municipality shall not be assigned a percentage
of fault for any of the following:
(2) The failure to remove natural or unnatural accumulations
of snow or ice, or to place sand, salt, or other abrasive material on
a highway, road, or street if the . . . municipality establishes that it
has complied with its policy or level of service for snow and ice
removal or placing sand, salt or other abrasive material on its
highways, roads, or streets.
Iowa Code § 668.10(2) (emphasis added).
Defendant does not dispute that Kirkwood-Brown fell on the brick sidewalk
in front of the hotel; but claims the statutory language, “highway, road, or street,”
includes sidewalks, thereby granting it immunity in this case.
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The Iowa Supreme Court discussed a related issue concerning a walkway
through a park in Hoskinson v. City of Iowa City, 621 N.W.2d 425 (Iowa 2001).
The trial court relied on Hoskinson in overruling the city’s motion for directed
verdict.
In Hoskinson the court first considered whether the walkway was a
sidewalk under Iowa Code section 364.12(2), which imposes a duty to remove
snow and ice from sidewalks. Id. at 427; see Iowa Code 364.12(2) (Supp. 1995)
(“removal of the natural accumulations of snow and ice from the sidewalks”). If
the walkway was a sidewalk, then the city had a duty under section 364.12(2) to
remove snow and ice. Hoskinson, 621 N.W.2d at 427.
Because chapter 364 does not define sidewalk, the court relied on two
early Iowa cases in concluding the walkway was not a sidewalk. See id. In 1870,
the Henly court ruled,
A sidewalk, so called, is part of the street. The fact that it is
exclusively reserved for foot passengers, and is usually paved and
constructed in a manner different from other parts of the street used
for horses and vehicles, does not require it to be regarded as no
part of the street.
Warren v. Henly, 31 Iowa 31, 37 (1870). Later, in 1919, the Central Life court
concluded,
A sidewalk is a part of the street, exclusively reserved for
pedestrians, and constructed somewhat differently than other
portions of the street, made use of by animals and vehicles,
generally. Whatever may be the difference, it constitutes a part of
the street.
Central Life Assurance Soc’y v. City of Des Moines, 185 Iowa 573, 576-7, 171
N.W. 31, 32 (Iowa 1919).
In Hoskinson, the park walkway was determined not to be a sidewalk
because it did not have one of the two specific characteristics identified in the
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early cases: “One, a sidewalk is a part of the street, constructed at or alongside
of the street. And two, it is exclusively reserved for pedestrian use.” Hoskinson,
621 N.W.2d at 428-9. The park walkway was not a sidewalk because it “was not
located at or along the side of a road, street, or highway.” Id. at 429.
Here, there is no controversy that Brown-Kirkwood’s fall occurred on a
sidewalk running parallel to First Avenue in downtown Cedar Rapids and the
sidewalk clearly meets the Hoskinson court’s definition of sidewalk.
The
controversy is whether this sidewalk is a “highway, road, or street,” under Iowa’s
immunity statute. This issue was also addressed in Hoskinson, where the court
divided its immunity discussion into two parts: (a) was the walkway a highway?
and (b) was the walkway a road or street? Id. at 430-31.
Because the Hoskinson court decided the walkway was not a highway and
neither party here argues the sidewalk is a highway, we turn to a discussion of
the meaning of immunity statute terms, “road or street.”
The Hoskinson court determined the statutory definition in Iowa Code
section 306.3 provides the definition of “road or street” because section 306.3
specifically applies to “any chapter of the Code relating to highways.” Id. at 430431 (quoting Iowa Code § 306.3 (1995)).
Therefore, “road or street” in the
immunity statute means “every way or place of whatever nature when any part of
such way or place is open to the use of the public, as a matter or right, for
purposes of vehicular traffic.” Hoskinson, 621 N.W.2d at 430-431 (quoting Iowa
Code § 306.3(10)). Because the walkway in the park was not intended to be
open to the public for vehicular traffic, the court determined the walkway was not
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within the immunity statute’s definition of “road or street.”
Hoskinson, 621
N.W.2d at 431.
However, because our case involves a sidewalk, not a walkway, and
because the Hoskinson court first determined the walkway was not a sidewalk,
the Hoskinson holding that a walkway is not a “road or street” under the immunity
statute does not control our issue of whether a sidewalk is a “road or street”
under that statute.
First, we note, “the word ‘street’ should be interpreted broadly so as to
foster the legislative intent favoring immunity.” Humphries v. Methodist Episcopal
Church, 566 N.W.2d 869, 872 (Iowa 1997) (holding “street” includes a raised
curb on public property at the edge of a roadway and includes as well a narrow
concrete extension of the curb).
Second, we believe the plain meaning of section 306.3 shows “street”
means the entire way dedicated to public use, any portion of which is dedicated
to vehicular use. See Iowa Code § 306.3(8) (2001). It does not exclude the
sidewalk. If it meant to exclude the sidewalk, the legislature could have defined
“street” to be a public way open to vehicular traffic. Instead, the statute includes
the entire publicly-owned tract if any part of that tract is open for vehicles. See
id. “In the interpretation of a statute, the legislature will be presumed to have
inserted every part thereof for a purpose, and to have intended that every part of
the statute should be carried into effect.” Georgen v. State Tax Commission, 165
N.W.2d 782, 785 (Iowa 1969). Therefore, “any part of such way or place” was
intended for the purpose of including more area than just the vehicular way, but
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also the public land directly adjacent, including the sidewalk. See Iowa Code §
306.3(8).
We conclude the immunity statute term “street” includes the sidewalk at
issue here. On remand, it will be up to the jury in a new trial to consider the facts
in light of the immunity statute and determine whether the city had a policy or
level of service to remove snow and ice, and, whether it complied with its policy.
See Humphries, 566 N.W.2d at 872.
B.
ACTUAL OR CONSTRUCTIVE NOTICE.
Defendant next argues the district court erred in overruling its motion for
directed verdict due to the plaintiff’s failure to prove actual or constructive notice.
The trial court stated:
Principally my concern was as to the notice requirements. And
after my review of the evidence, I think that that’s a matter for the
jury to determine. Based on all of the evidence, I think there is a
sufficient factual issue as to whether the City had notice or whether
reasonable amount of time had lapsed that the City should have
been on notice. And that will be an issue that the jury should
decide.
In Iowa, the requirements of notice and an opportunity to remove the
hazard are limitations to liability in situations involving the natural accumulations
of ice and snow.
Hopping v. College Block Partners, 599 N.W.2d 703, 705
(Iowa 1999). Because each case is factually unique, for many years Iowa courts
have recognized the issue of actual or constructive notice of snow and ice
accumulation is a question for the jury. “The length of time sufficient to constitute
constructive notice of the conditions and a reasonable opportunity to remedy it
depends on the facts and circumstances of each case and is generally a
question for the jury.”
Hovden v. City of Decorah, 261 Iowa 624, 627, 155
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N.W.2d 534, 536 (1968), overruled on other grounds by Hopping, 599 N.W.2d at
705; see also Gates v. City of Des Moines, 240 Iowa 775, 781, 38 N.W.2d 96,
100 (1949); Tollackson v. City of Eagle Grove, 203 Iowa 696, 698, 213 N.W. 222,
224 (1927); Parks v. City of Des Moines, 195 Iowa 972, 977-78, 191 N.W. 728,
730-31 (1923). Constructive notice of the actual condition of the premises has
been found to exist where a plaintiff fell on slippery cement on a cold day
following several days of snow. See Frantz v. Knights of Columbus, 205 N.W.2d
705, 712 (Iowa 1973).
It snowed intermittently for several days prior to the morning KirkwoodBrown fell. The most recent snow was a one inch snowfall, not an ice event, and
it stopped in the early hours of the morning of her fall. The city had sent out its
snowplow and work crews. Kirkwood-Brown testified the sidewalk where she fell
had not been shoveled or salted. We agree with the trial court’s conclusion the
record contains sufficient evidence to create a factual issue for the jury
concerning the city’s notice of the sidewalk’s conditions.
REVERSED AND REMANDED.
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