ROBERT HILSMAN and KAREN NORBY, Plaintiffs - Appellants, vs. TIMOTHY PHILLIPS d/b/a PHILLIPS REFRIGERATION, Defendant - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-1031 / 08-0289
Filed February 4, 2009
ROBERT HILSMAN and
KAREN NORBY,
Plaintiffs-Appellants,
vs.
TIMOTHY PHILLIPS
d/b/a PHILLIPS REFRIGERATION,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Bruce B.
Zager, Judge.
Plaintiffs appeal from the district court‟s directed verdict and ruling denying
their motion for a new trial following a jury verdict in favor of defendant.
AFFIRMED.
Judith O‟Donohoe of Elwood, O‟Donohoe, Braun & White, Charles City,
for appellants.
David L. Riley of McCoy, Riley, Shea & Bevel, P.L.C., Waterloo, for
appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
2
DOYLE, J.
Robert Hilsman and Karen Norby appeal from the district court‟s directed
verdict and ruling denying their motion for a new trial following a jury verdict in
favor of Timothy Phillips d/b/a Phillips Refrigeration (Phillips).
We affirm the
judgment of the district court.
I. Background Facts and Proceedings.
Robert Hilsman purchased a wood-burning stove from Phillips in October
or November 2005 to help heat a large pole building he owned.
The pole
building was constructed in 1995 and insulated with cellulose insulation. It was
located next to the home Hilsman shared with his girlfriend, Karen Norby.
Hilsman and Norby planned to operate a business specializing in leather crafts
out of the building.
Hilsman placed the wood-burning stove in the north end of the building
where they planned to display and sell their leather crafts. The south end of the
building, which housed Hilsman‟s tools, pickup, snowplow, and motorcycles, was
heated by an LP furnace that had been installed by Phillips some years prior.
Hilsman lined the north wall of the building with a steel sheet and set the stove
on blocks about three to four feet away from that wall. He then contacted Phillips
to install a chimney for the stove.
Hilsman told Phillips he would like the chimney to go out the side of the
building and up the outside, referred to as a “tee-supported installation.” In order
to install the chimney in that manner, Phillips had to order a tee support, which
was not immediately available. Hilsman and Norby were anxious to have the
chimney installed so the stove would be operational for the grand opening of their
3
store on December 22, 2005. Phillips told them the only way the chimney could
be installed before the tee support came in was to install it inside the building,
through the ceiling and out the roof. That type of installation is referred to as a
“ceiling-supported installation.” Hilsman and Norby decided to have the chimney
installed in that manner.
Cory Phillips, Timothy‟s son, began installing the chimney for Hilsman and
Norby on December 19. He used a chimney flue manufactured by Simpson
Dura-Vent. Cory installed a single-wall vent pipe from the wood-burning stove to
the ceiling. He then attached an anchor plate to the ceiling and used double-wall
vent pipe, which is specially designed to withstand high temperatures, in the attic.
A sticker on the pieces of the double-wall vent pipe instructed that a two-inch
clearance should be maintained between the pipe and any combustible material.
In order to maintain that clearance, Cory notched a groove into a two-by-four
piece of wood near the pipe in the attic and packed the cellulose insulation in the
attic away from the pipe. He finished installing the chimney on December 20,
and Hilsman and Norby began using it almost every day thereafter.
On January 22, 2006, Hilsman was in the building with the wood-burning
stove running all day. At about 8:00 p.m., he went into the house to call his
brother and eat dinner with Norby. He left the fire in the stove going because he
planned to go back out to the building. While he was in the house, Hilsman
noticed smoke coming from the building. He ran outside and tried to open a door
on the south end of the building. All he could see was black smoke. He yelled at
Norby to call 911. The fire was reported at 8:11 p.m. that night. The building and
most of the items in it were destroyed by the fire.
4
Michael Keefe, a special agent with the state fire marshal‟s office,
investigated the fire.
He examined the scene of the fire three days after it
occurred. By that time, the roof on the north end of the building had collapsed.
He concluded that the structural damage to the building, specifically “the damage
to the wood, the damage to the tin and the damage to the stovepipe,” indicated
the fire started above the ceiling in the northwest corner of the building.
Hilsman and Norby filed a petition against Phillips in July 2006, seeking
damages for breach of contract, negligence, and intentional infliction of emotional
distress.1
The case proceeded to a jury trial.
At the close of the plaintiffs‟
evidence, Phillips moved for a directed verdict as to the breach of contract and
products liability claims against it. The district court granted Phillips‟s motion and
submitted the case to the jury on only the plaintiffs‟ negligence claim. The jury
returned a verdict in favor of Phillips, finding he was not at fault. Hilsman and
Norby filed a motion for new trial, asserting the court erred in directing a verdict in
Phillips‟s favor and that the jury‟s verdict on their negligence claim was not
supported by sufficient evidence. The district court denied that motion.
Hilsman and Norby appeal.
They claim the district court erred in
(1) refusing to submit their breach of contract, breach of implied warranty, and
strict liability claims to the jury; (2) allowing Phillips‟s expert to testify; and
(3) denying their motion for new trial on their negligence claim.
1
The plaintiffs later amended their petition to include two additional specifications of
negligence: (1) “The installer utilized inappropriate parts in the design of the chimney
and failed to use appropriate shielding for the insulation above the ceiling” and (2) “The
design of the chimney and venting system as a whole was unreasonably dangerous.”
5
II. Motion for Directed Verdict.
We review the district court‟s grant of a directed verdict for correction of
errors at law. Felderman v. City of Maquoketa, 731 N.W.2d 676, 678 (Iowa
2007).
In doing so we take into consideration all reasonable inferences
that could be fairly made by the jury and view the evidence in the
light most favorable to the nonmoving party. If there is substantial
evidence in the record to support each element of a claim, the
motion for directed verdict must be overruled. Evidence is
substantial when reasonable minds would accept the evidence as
adequate to reach the same findings. Our role, then, is to determine
whether the trial court correctly determined that there was
insufficient evidence to submit the issue to the jury.
Id. (internal citations and quotations omitted).
A. Breach of Contract.
Hilsman and Norby first claim the district court erred in refusing to submit
their breach of contract claim to the jury. In order to establish that claim, the
plaintiffs were required to prove the following: (1) the existence of a contract;
(2) the terms and conditions of the contract; (3) performance of those terms and
conditions; (4) Phillips‟s breach of the contract; and (5) damages as a result of
the breach. Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222,
224 (Iowa 1998).
Hilsman and Norby argue they presented sufficient evidence at trial to
establish “there was a contract for safe installation of a chimney flue system for a
wood burning stove.”
Phillips admitted he entered into a contract with the
6
plaintiffs to install a chimney for their wood-burning stove.2
There was also
sufficient evidence presented at trial, which Phillips does not seriously contest on
appeal, that a term of the contract was that the chimney would be installed
safely.
The parties‟ dispute thus centers on whether Phillips breached that
contract and caused the plaintiffs‟ damage.3
“A party breaches a contract when, without legal excuse, it fails to perform
any promise which forms a whole or a part of the contract.” Id. Hilsman and
Norby assert they presented sufficient evidence establishing Phillips failed to
perform his promise to install the chimney safely by showing he did not install it
according to the manufacturer‟s instructions. Upon viewing the evidence in the
light most favorable to the plaintiffs and affording them all reasonable inferences
that could fairly be made, we must agree.
George Wandling Sr., the plaintiffs‟ expert, testified at length about
Phillips‟s failure to follow the manufacturer‟s installation instructions for the
ceiling-supported chimney installed in the plaintiffs‟ building. He noted that the
instructions required Phillips to install an attic insulation shield above the ceiling
where the chimney passes into the attic, which Phillips did not do. The purpose
of such a shield according to the manufacturer‟s instructions “is to prevent debris
and insulation from getting too close to the chimney.” Wandling also noted that
2
We note although Phillips admitted he entered into a contract with the plaintiffs in his
answer to plaintiffs‟ petition, there was no evidence presented at the trial that Norby was
a party to that contract.
3
Phillips alternatively argues the plaintiffs failed to establish the third element of a
breach of contract claim because they did not pay Phillips for installing the chimney.
There was conflicting evidence as to whether the plaintiffs refused to pay Phillips before
the fire occurred. Moreover, Timothy Phillips testified he did not expect payment from
the plaintiffs after the fire. See In re Guardianship of Collins, 327 N.W.2d 230, 233 (Iowa
1982) (stating contract rights can be waived).
7
Phillips attached the single-wall vent pipe to an anchor plate on the bottom of the
ceiling instead of one of the support boxes specified in the manufacturer‟s
instructions. The purpose of the support boxes is to “provide proper insulation
from combustibles.”
Timothy and Cory Phillips testified they did not believe
either an attic insulation shield or support box was necessary because the steel
ceiling was not combustible.
Wandling, however, testified that because Phillips used an anchor plate
instead of a support box, the single-wall vent pipe could have reached
temperatures high enough at the point where it met the ceiling to cause the
cellulose insulation located above the ceiling to eventually ignite.
He thus
concluded that with Phillips‟s failure to install the chimney in the manner
instructed by the manufacturer “and the location of the cellulose insulation, . . . it
was just a matter of time with use of the wood stove that we would have a fire.”
Wandling accordingly agreed with Keefe, the fire marshal who investigated the
fire, that the fire started above the ceiling.
He additionally testified that he
believed the ignition source of the fire to be the cellulose insulation in the
building‟s ceiling.
There was evidence presented that contradicted Wandling‟s testimony
about whether Phillips‟s failure to follow the manufacturer‟s instructions resulted
in an unsafe installation of the chimney thereby causing the fire on January 22,
2006.
There was also evidence presented that contradicted Wandling and
Keefe‟s conclusions about the origin and cause of the fire.
However, as we
previously indicated, “[i]n reviewing an appeal from a directed verdict, „we view
the evidence in the light most favorable to the resisting party, even in the face of
8
contradictory evidence.‟” Pancratz v. Monsanto Co., 547 N.W.2d 198, 200 (Iowa
1996) (citation omitted). “Our function is to review the evidence to determine, not
whether it proves [the plaintiff‟s claim], but whether it is sufficient so the trial court
was justified in submitting the question to the jury as the trier of the facts.” Miller
v. Young, 168 N.W.2d 45, 51 (Iowa 1969).
Given our standard of review, we believe Wandling‟s testimony, in
conjunction with Keefe‟s testimony about the origin and cause of the fire,
constituted sufficient evidence to generate a jury question as to whether Phillips
breached his contract with the plaintiffs to safely install a chimney for their wood
stove. We therefore conclude the district court erred in directing a verdict on
plaintiffs‟ breach of contract claim.4 Phillips argues, however, that such error was
harmless because the “facts that the Plaintiff now claims as breach of contract
were covered by the court in its fault instruction.”
We agree.
The jury
determined Phillips was not at fault based upon the same specifications of
negligence the plaintiffs claim constituted Phillips‟s breach of contract.
We
therefore conclude any error in the court‟s failure to submit the breach of contract
claim does not require a reversal in this case.
4
We note in addition to finding there was not “substantial evidence in this record to
support a theory of a breach of contract claim” in granting Phillips‟s motion for directed
verdict, the district court also stated,
I believe that it really lies in negligence as opposed to contract about
whether or not he breached that duty of installing a chimney that was not
done in a negligent or in a faulty manner so as to result in a fire in this
case.
We need not and do not determine whether the court erred in so concluding because the
plaintiffs do not challenge that determination on appeal. See Feldhahn v. R.K.B. Quality
Corp., 356 N.W.2d 226, 229-30 (Iowa 1984) (concluding court erred in limiting plaintiff
claim to a breach of contract claim and refusing to submit a negligence claim to the jury).
9
B. Implied Warranty of Merchantability.
Hilsman and Norby next claim the district court erred in refusing to submit
their breach of implied warranty of merchantability claim to the jury. Bypassing
any error preservation concerns,5 see State v. Taylor, 596 N.W.2d 55, 56 (Iowa
1999), we disagree.
Section 554.2314 of Iowa‟s Uniform Commercial Code (UCC) sets out the
criteria for an implied warranty of merchantability. In order to establish a breach
of that warranty, the plaintiffs were required to prove the following:
(1) a
merchant sold the goods; (2) the goods were not “merchantable” at the time of
the sale; (3) injury or damage occurred to their person or property; (4) the
defective nature of the goods caused the damage “proximately and in fact”; and
(5) notice of the injury was given to the seller. Van Wyk v. Norden Lab., Inc., 345
N.W.2d 81, 87 (Iowa 1984). Hilsman and Norby argue, in relevant part, they
established “the chimney assembly was defective in nature because it did not
conform to the requirements of the manufacturer for installation.”
(Emphasis
added.) There are several problems with this argument.
We first question whether the UCC applies in this case. See Moore v.
Vanderloo, 386 N.W.2d 108, 112 (Iowa 1986) (stating Article 2 of the UCC
expressly governs transactions involving goods and does not apply to services).
But see Semler v. Knowling, 325 N.W.2d 395, 398 n.1 (Iowa 1982) (recognizing
5
Phillips argues the plaintiffs did not preserve error on the issue of whether the district
court erred in refusing to submit both the breach of implied warranty and strict liability
claims because the plaintiffs did not plead such claims in their petition or amendment
thereto. We note, however, that the plaintiffs did include both theories in their proposed
jury instructions and trial brief. Phillips also moved for a directed verdict as to the
plaintiffs‟ “product liability theory.” Finally, the court referred to the breach of implied
warranty claim in its ruling on Phillips‟s motion for directed verdict.
10
the UCC can apply to mixed contracts for goods and services).
Phillips,
however, does not raise that as an argument on appeal. See Hyler v. Garner,
548 N.W.2d 864, 876 (Iowa 1996) (“In a case of this complexity, we will not
speculate on the arguments [a party] might have made and then search for legal
authority and comb the record for facts to support such arguments.”); see also
United Props., Inc. v. Walsmith, 312 N.W.2d 66, 70 (Iowa Ct. App. 1981) (stating
our review is confined to those propositions relied upon by each party for reversal
or affirmance).
Furthermore, the plaintiffs‟ argument in support of their implied warranty
claim clearly shows they sought to hold Phillips liable under an “assembler
liability theory” whereby a party that “incorporates a defective component part
into its finished product and places the finished product into the stream of
commerce is liable for injuries caused by a defect in the component part.”
Weyerhaesuer Co. v. Thermogas Co., 620 N.W.2d 819, 824 (Iowa 2000)
(emphasis added). The plaintiffs presented no evidence nor do they claim that
any of the parts used by Phillips in the installation of the chimney were defective.
Instead, as Phillips argues, the plaintiffs‟ evidence at trial focused on the alleged
improper installation of the chimney. Such a theory of liability does not appear to
be redressable under a breach of implied warranty of merchantability claim. We
therefore conclude the district court did not err in directing a verdict in favor of
Phillips on that claim.
11
C. Strict Liability.
The plaintiffs‟ final claim as to the district court‟s ruling on Phillips‟s motion
for directed verdict is that the court erred in refusing to submit their breach of
strict liability claim to the jury. We do not agree.
“Products liability law broadly refers to the legal responsibility for injury
resulting from the use of a product.” Lovick v. Wil-Rich, 588 N.W.2d 688, 698
(Iowa 1999). In Lovick, our supreme court adhered to the traditional view that
product liability law “encompasses three separate and distinct theories of liability:
negligence, strict liability, and breach of warranty” with “underlying theories” of
“improper design, inadequate warnings, or mistakes in manufacturing.”
Id.
However, “[a]lthough each is a separate and distinct theory of recovery, the same
facts often give rise to all three claims.” Id.
Thus, in the context of design defect cases, the court acknowledged there
is “an academic debate over whether the distinction between strict liability and
negligence theories should be maintained when applied to a design defect case.”
Id. Despite its decision to merge the negligence and strict liability theories in the
context of a failure to warn claim in Olson v. PROSCO, Inc., 522 N.W.2d 284,
288-90 (Iowa 1994), the court in Lovick declined the opportunity to merge the two
theories in design defect cases.
Lovick, 588 N.W.2d at 699.
Our courts
continued to recognize the negligence/strict liability distinction in design defect
cases, see, e.g., Mercer v. Pittway Corp., 616 N.W.2d 602, 620 n.4 (Iowa 2000),
until Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002).
In Wright, our supreme court adopted Restatement (Third) of Torts:
Product Liability sections 1 and 2 for product defect cases. 652 N.W.2d at 169.
12
In doing so, the court noted the “Products Restatement does not place a
conventional label, such as negligence or strict liability, on design defect cases.”
Id. It thus questioned the need for
any traditional doctrinal label in design defect cases because, as
comment n [to Products Restatement section 2] points out, a court
should not submit both a negligence claim and a strict liability claim
based on the same design defect since both claims rest on an
identical risk-utility evaluation.
Id. (emphasis added). The court therefore concluded it was preferable to “label a
claim based on a defective product design as a design defect claim without
reference to strict liability or negligence.” Id.
Hilsman and Norby clarified in their response to Phillips‟s motion for
directed verdict that their theory of the case as to their strict liability claim was
that Phillips improperly designed the chimney. Pursuant to the court‟s holding in
Wright, they were thus not entitled to have both a negligence claim and a strict
liability claim submitted to the jury. Id. We therefore conclude the district court
did not err in directing a verdict in favor of Phillips on the plaintiffs‟ strict liability
claim.
III. Expert Testimony.
Hilsman and Norby claim the district court abused its discretion in allowing
Phillips‟s expert, Robert Russell, to testify because he was neither qualified nor
competent to render an opinion as to the nature and cause of the fire in this case.
We reject this assignment of error.
Iowa Rule of Evidence 5.702 provides the standard for the admission of
expert testimony:
13
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or
otherwise.
(Emphasis added.) A witness‟s ability to testify as an expert is determined in
reference to the topic under examination.
Hyler, 548 N.W.2d at 868.
“The
witness must be qualified to answer the particular question propounded.
Whether a witness is sufficiently qualified to testify as an expert is within the
court‟s discretion.” Id. (internal citation omitted). “We are „committed to a liberal
rule on the admissibility of opinion testimony.‟” Id. (citation omitted). We thus
apply an abuse of discretion standard to review a ruling by the district court on
the admissibility of expert testimony, giving great deference to the decision of the
court. Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 532 (Iowa 1999).
The plaintiffs assert Russell was not qualified to give an opinion about the
cause of the fire in this case because his education was deficient and he did not
demonstrate he had specific knowledge about or experience with cellulose fires
and wood-burning stoves. We do not agree.
Russell graduated from college with a bachelor of arts in history.
He
began working for Packer Engineering as a fire investigator in 1981. At the time
of the trial, he was employed as the director of fire investigations for that
company.
Russell is a certified fire investigator through the International
Association of Arson Investigators and regularly attends training seminars to
maintain and improve his proficiency in electrical, fire, and explosion
investigations.
Although he specializes in electrical investigations, he has
14
investigated fires involving cellulose insulation in the past. He is qualified to
“examine fires in all areas from all sources.”
We conclude the district court did not abuse its discretion in admitting the
expert testimony of Russell. As the foregoing demonstrates, he is sufficiently
qualified in fire investigation to address the matters covered in his testimony.
“[N]o particular education is required; experience is sufficient to qualify a witness
as an expert.” Id. at 535. Any deficiency in Russell‟s college education is offset
by his considerable experience and continuing education in fire investigation and
goes to the weight of his testimony rather than its admissibility. See Iowa R.
Evid. 5.702 (stating a witness may be qualified as an expert “by knowledge, skill,
experience, training, or education” (emphasis added)); see also Hutchison v.
American Family Mut. Ins. Co., 514 N.W.2d 882, 885 (Iowa 1994) (stating if
witness has threshold qualifications to testify as an expert, any inquiry
concerning the extent of his qualifications goes to the weight of his testimony).
Moreover, a witness does not need to be “a specialist in the particular area of
testimony so long as the testimony falls within the witness‟[s] general area of
expertise.” Mensink v. American Grain, 564 N.W.2d 376, 379 (Iowa 1997).
We also reject the plaintiffs‟ argument that Russell was not competent to
render an opinion as to the cause of the fire because he did not have sufficient
data upon which an expert judgment could be made. “For an expert‟s opinion to
be competent, sufficient data must be presented on which an expert judgment
can be made. The facts must support a conclusion more than mere conjecture
and speculation.” City of Oelwein v. Board of Trustees of the Mun. Fire & Police
Ret. Sys. of Iowa, 567 N.W.2d 237, 239 (Iowa Ct. App. 1997).
15
Here, Russell “reviewed the depositions of all the participants in this case”
in addition to the “site photographs taken both by the fire marshal and [Norby‟s
daughter] as well as others.” He also “examined information about the stove.”
We believe the information examined by Russell provided sufficient data for him
to reach a conclusion that was “more than mere conjecture and speculation.” Cf.
Iowa Power & Light Co. v. Stortenbecker, 334 N.W.2d 326, 331 (Iowa Ct. App.
1983) (finding expert not competent to testify where testimony about health
hazards to humans from electric transmission lines was based on incomplete
studies conducted on small laboratory animals).
IV. Motion for New Trial.
Hilsman and Norby finally claim the district court erred in denying their
motion for new trial as to their negligence claim. Our review of a motion for new
trial depends on the grounds raised in the motion. Clinton Physical Therapy
Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006).
In this case, the plaintiffs‟ motion for new trial argued the jury‟s verdict finding in
favor of Phillips on the plaintiffs‟ negligence claim was not supported by sufficient
evidence. Because the sufficiency of the evidence presents a legal question, we
review the court‟s ruling on this ground for the correction of errors at law. Estate
of Hagedorn ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 87 (Iowa 2004).
The jury was instructed as follows:
The Plaintiffs claim the Defendant was at fault in one or
more of the particular(s):
a. by installing the chimney pipe so that excessive heat
radiated to surrounding wood and other combustible
materials;
b. by installing inappropriate parts in the design of the
chimney; or
16
c. in failing to use appropriate shielding for the insulation.
The Plaintiff must prove all of the following propositions:
1. The Defendant was at fault.
2. The Defendant‟s fault was a proximate cause of the
Plaintiffs‟ damage.
3. The amount of damage.
The jury determined Phillips was not at fault. We believe sufficient evidence
supports this finding.
The plaintiffs argue “Phillips made no serious attempt to argue that he
properly installed the chimney flue.” However, “it is the plaintiff‟s burden to prove
fault by a preponderance of the evidence.” Easton v. Howard, 751 N.W.2d 1, 5
(Iowa 2008).
In order to prove Phillips‟s installation of the chimney was
negligent, the plaintiffs needed to establish the fire originated in the ceiling of the
building due to ignition of the cellulose insulation. However, there were diverse
opinions as to the origin and cause of the fire.
Russell testified that he believed the fire started below the ceiling in the
northwest corner of the building. His opinion was based on photographs taken
one day after the fire before the north end of the building collapsed that showed
the presence of wooden trusses supporting the roof of the building on the north
side. He testified that if the fire had started above the ceiling in the attic as Keefe
and Wandling believed, “the lower webs of the truss members would have been
the first items attacked by a cellulose fire if it started in that attic space, but the
fact of the matter is, they‟re still there.” Russell opined that had those wooden
trusses been at the point of origin of the fire, “they should have been turned to
charcoal and not been able to be supported.”
17
Russell further testified he did not believe the fire was caused by ignition
of the cellulose insulation in the attic as Wandling had testified. According to
Russell, Wandling, and Keefe, a cellulose fire “smolders.” As Russell explained,
Because of the nature of the cellulose being a wood product
that is finally ground and again in today‟s world mixed with a flameretardant material, cellulose once ignited will burn as a smoldering
fire much as a cigarette burns at the tip . . . . [I]f a fire does begin
the smoldering process, it migrates from the point of ignition . . .
until it meets some other combustible.
And, for example, in a pole barn like this or in an attic space,
the combustibles could be the roof truss members, the structural
members of the roof, ceiling joists. And when it strikes those
members, it will cause a charring and a deeper charring and
ultimately ignition of the wood framing members of that structure.
All of the experts agreed it would “take a considerable amount of time” for
smoldering cellulose insulation to ignite.
During the smoldering phase, a
significant amount of smoke would be produced, which in this case, would have
been vented out of the top of the pole building.
Here, as Russell pointed out, Hilsman was in the building all day
preceding the fire.
He did not notice anything unusual while he was in the
building, although Norby testified that when she went into the building at around
5:30 or 6:00 p.m. the night of the fire, she heard a “crack.” Neither she nor
Hilsman noticed any smoke coming from the building in the hours before the fire.
Hilsman left the building at 8:00 p.m., and the fire was reported at 8:11 p.m.
Russell found that short timeline significant because a cellulose fire would not
burn that rapidly:
[F]or the fire to have somehow fallen below the steel ceiling within
that ten-minute timespan and produce sufficient heat 56 feet to the
south [of the building] where [Hilsman] cannot enter the structure or
he will burn his hands . . . suggests strongly that the source of heat
18
is below the steel ceiling and banking in what is called almost a
flashover condition.
Moreover, the black smoke Hilsman testified he saw when he first tried to open
the door on the southside of the building “is not characteristic of cellulose
insulation” according to Russell.
petrochemical-type of smoke.
Instead, “[h]eavy black smoke is for a
Something that will come from plastics, fuels,
various solvents.”
Although there was conflicting testimony about the origin and cause of the
fire, the jury is ordinarily allowed to settle disputed fact questions. Cowan v.
Flannery, 461 N.W.2d 155, 157 (Iowa 1990); see also Iowa R. App. P. 6.14(6)(j)
(stating questions of negligence are for the jury). The jury here was required to
choose which expert testimony it deemed correct and was “at liberty to accept or
reject any such opinion testimony in whole or part.” Kautman v. Mar-Mac Cmty.
Sch. Dist., 255 N.W.2d 146, 148 (Iowa 1977). A verdict should not be set aside
simply because the reviewing court might have reached a different conclusion.
Cowan, 461 N.W.2d at 158; see also Kautman, 255 N.W.2d at 147 (“It is not for
us to invade the province of the jury.”). “The determinative question posed is
whether under the record, giving the jury its right to accept or reject whatever
portions of the conflicting evidence it chose, the verdict effects substantial justice
between the parties.” Kautman, 255 N.W.2d at 148. We conclude it does. We
therefore affirm the district court‟s denial of the plaintiffs‟ motion for new trial as to
their negligence claim.
19
V. Conclusion.
Upon viewing the evidence in the light most favorable to the plaintiffs, we
conclude the district court erred in refusing to submit their breach of contract
claim to the jury. Such error, however, does not require reversal because the
jury determined Phillips was not at fault based upon the same specifications of
negligence the plaintiffs claim constituted Phillips‟s breach of contract. The court
did not err in directing a verdict in favor of Phillips on the plaintiffs‟ breach of
implied warranty and strict liability claims. Nor did the court abuse its discretion
in admitting the expert testimony of Russell. Finally, the court did not err in
denying the plaintiffs‟ motion for new trial on their negligence claim because
there was sufficient evidence supporting the jury‟s verdict finding Phillips was not
at fault. We therefore affirm the judgment of the district court.
VI. Postscript.
Upon reading the plaintiffs‟ brief and reply brief, this court‟s weary eyes
suspected the typeface was a wee bit small.
Upon investigation, it was
determined the briefs utilized a 12 point Times New Roman typeface, not 13
point as required by Iowa Rule of Appellate Procedure 6.16(1) (2008) when using
Times New Roman typeface. In addition, only one space was used at the end of
each sentence, rather than the customary two spaces. With the high volume of
reading faced by this court, techniques that cram more words to a page, whether
employed by design, accident, or ignorance, make our job more difficult and are
thus frowned upon. We wholeheartedly agree with one legal writer who stated:
Large type is a must. Judges read many, many briefs. Large type
is easy to read—no, let me rephrase that: Large type is a joy to
read! When I get a brief with large margins, large type, and plenty
20
of white-space, I savor it as one might a fine wine or a vintage port.
Other judges feel the same way. So, even if your appellate court‟s
rules do not require “14-point type or larger” . . . do not try to
squeeze words in, by either shrinking the type size, by decreasing
the margins, or by narrowing the space between the lines. Lawyers
who believe that they are helping their clients by jamming in more
words are making a big mistake.
Ralph Adam Fine, The “How-To-Win” Appeal Manual 18 (Juris Publishing 2000).
Hopefully, the revised rules of appellate procedure 6.903(1)(e), (g), and 6.1401—
Form 7: Certificate of Compliance with Type-volume Limitation, Typeface
Requirements, and Type-Style Requirements, effective January 1, 2009, will
eliminate this problem.
AFFIRMED.
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