LAUREN HERRIG, By her Mother and Next Friend, LAURA HERRIG, and LAURA HERRIG, Individually, Plaintiffs-Appellants, vs. THE DUBUQUE COMMUNITY SCHOOL DISTRICT, DUBUQUE COMMUNITY SCHOOL BOARD, DUBUQUE SENIOR HIGH SCHOOL, and KAREN BLOCKLINGER, Vice Principal, Defendants/Third-Party Plaintiffs-Appellees. vs. DEMETRIUS MINTZ, Third-Party Defendant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-160 / 08-1111
Filed June 17, 2009
LAUREN HERRIG, By her Mother and Next
Friend, LAURA HERRIG, and LAURA HERRIG,
Individually,
Plaintiffs-Appellants,
vs.
THE DUBUQUE COMMUNITY SCHOOL DISTRICT,
DUBUQUE COMMUNITY SCHOOL BOARD, DUBUQUE
SENIOR HIGH SCHOOL, and KAREN BLOCKLINGER,
Vice Principal,
Defendants/Third-Party Plaintiffs-Appellees.
vs.
DEMETRIUS MINTZ,
Third-Party Defendant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson,
Judge.
Plaintiffs appeal from a district court ruling denying their motion for new
trial following a jury verdict and judgment in defendants‟ favor in plaintiffs‟
negligence action. AFFIRMED.
David L. Hammer, Angela C. Simon, and Susan M. Hess of Hammer,
Simon & Jensen, Dubuque, for appellants.
Danita L. Grant of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C.,
Dubuque, for appellee.
Considered by Mahan, P.J., and Miller and Potterfield, JJ.
2
MILLER, J.
Lauren Herrig and her mother, Laura Herrig, appeal from a district court
ruling denying their motion for new trial following a jury verdict and judgment in
favor of the Dubuque Community School, the Dubuque Community School
Board, and Karen Blockinger, an assistant principal at Dubuque Senior High
School, in the Herrigs‟ negligence action. We affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
On April 26, 2005, freshman Demetrius Mintz shot his classmate, Lauren
Herrig, in the back of her neck with a BB gun on a sidewalk outside of Dubuque
Senior High School as school was dismissing for the day. Mintz and two other
boys were arrested later that day when they used the same BB gun in a theftrelated offense. Mintz told police he accidentally shot Herrig with the BB gun
when he “pulled a slide back and the slide released and his finger must have
been on the trigger causing the gun to be fired.” Mintz was placed in a juvenile
detention center and did not return to school for the remainder of the year. He
was expelled on May 23, 2005.
Dissatisfied with the school‟s response to the incident, Lauren‟s mother,
individually and on Lauren‟s behalf, filed suit against the Dubuque Community
School, the Dubuque Community School Board, Dubuque Senior High School,1
and Blockinger. The Herrigs alleged, among other things, that the defendants
were negligent in failing to protect Lauren from Mintz—a student with a history of
disciplinary problems.
1
Dubuque Senior High School was dismissed as a defendant in the lawsuit in a
summary judgment ruling that the Herrigs do not challenge on appeal.
3
Following a trial, the jury returned a verdict in favor of the defendants,
finding the Herrigs had not proved the defendants were negligent. The Herrigs
filed a motion for new trial, asserting the verdict was contrary to law, not
supported by sufficient evidence, and failed to effectuate justice between the
parties. The district court denied the motion for new trial.
The Herrigs appeal. They claim the district court erred in denying their
motion for new trial because the verdict was “contrary to the evidence presented”
and “undermines public policy.”2
II.
SCOPE AND STANDARDS OF REVIEW.
Our review of a district court‟s ruling on 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). When the motion
and ruling are based on discretionary grounds, our review is for abuse of
discretion. Id. However, when the motion and ruling are based on a claim the
trial court erred on issues of law, our review is for correction of errors at law. Id.
If a verdict “is not sustained by sufficient evidence” and the movant‟s
substantial rights have been materially affected, it may be set aside and a new
trial granted. Iowa R. Civ. P. 1.1004(6); Olson v. Sumpter, 728 N.W.2d 844, 850
(Iowa 2007). ”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 at
2
If there are any error preservation problems with the issues raised by the Herrigs on
appeal, as the defendants contend, we elect to bypass them and proceed to the merits.
See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
4
law.”3 Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 87
(Iowa 2004).
III.
MERITS.
When a party challenges the sufficiency of evidence to support the
jury‟s factual findings, we examine the record to determine whether
those findings are supported by substantial evidence. In so doing,
we must view the evidence in the light most favorable to the verdict,
taking into consideration all reasonable inferences the jury may
have made. The factual issues of negligence and proximate cause
are for the jury to resolve, and only in exceptional cases may we
decide them as a matter of law.
City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16 (Iowa
2000).
The Herrigs claim this is one of those “exceptional cases” in which
reasonable minds could come to no other conclusion than that the defendants
were negligent as a matter of law. See Peters v. Howser, 419 N.W.2d 392, 394
(Iowa 1988) (stating “[i]t is only in the plainest cases, in which reasonable minds
could come to no other conclusion,” that questions of negligence can be decided
as a matter of law); see also Iowa R. App. P. 6.14(6)(j). We do not agree.
A school has an “affirmative duty to take all reasonable steps to protect its
students.” Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 446 (Iowa
2002). “In protecting its children, a school must exercise the same care toward
them „as a parent of ordinary prudence would observe in comparable
circumstances.‟” Id. (citation omitted). “Teaching and learning cannot take place
without the physical and mental well-being of the students. The school premises,
3
The defendants assert a ruling on a motion for new trial based on whether the jury‟s
verdict is supported by sufficient evidence is reviewed for abuse of discretion. We
believe Estate of Hagedorn, 690 N.W.2d at 87, states the correct standard of review
applicable to the facts presented by this case. However, our result would be the same
even if we reviewed the issue for abuse of discretion.
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in short, must be safe and welcoming.” Id. (citation omitted). The Herrigs argue
the evidence presented at trial established the defendants breached their duty to
protect Lauren by not removing Mintz from school for his repeated disciplinary
violations before the incident with Lauren occurred.
In the month before Mintz shot Lauren with a BB gun, he was involved in
three fights at school. On March 29, 2005, Mintz grabbed a classmate around
the neck “after an exchange of words” between him and that student. He was
referred to the school‟s “plan room” to develop a “student responsibility plan.”
Three days later, Mintz punched a fellow student in the face after that student
pushed him. He was suspended for three days and charged with disorderly
conduct. On April 12, Mintz punched, kicked, and choked two other students.
Mintz was again suspended for three days and charged with assault with injury.
The school placed him on “full escort” for the remainder of the school year, which
meant he was accompanied by a staff member at all times while he was in the
school building.
Blockinger additionally recommended that Mintz attend an
alternative school the following year.
Derrick Fries, Ph.D., the expert witness for the Herrigs, criticized the
school‟s disciplining of Mintz. He opined the defendants should have employed a
“progressive discipline approach” and placed Mintz on a ten-day “long term
suspension” after his third fight. According to Fries, if the defendants had done
that, “Lauren Herrig probably wouldn‟t have been shot because [Mintz] would
have been off on long term suspension and probably would not have come back
to school.” However, there was evidence present in the record from which the
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jury could find the defendants responded appropriately to Mintz‟s disciplinary
infractions before the incident with Lauren.
See Briggs Transp. Co. v. Starr
Sales Co., 262 N.W.2d 805, 808 (Iowa 1978) (stating in evaluating sufficiency of
evidence, “[w]e need only consider evidence favorable to the judgment, whether
or not it is contradicted”).
Administrators at the school followed the school district‟s disciplinary
policy in dealing with Mintz‟s behavior.
That policy sets forth a “Menu of
Consequences and Interventions” for student behavior violations.
The list of
consequences and interventions includes detention, community service, denial of
privileges, police intervention, suspension, and expulsion.
The policy directs
school officials to “consider the student‟s past performance, the circumstances of
a specific infraction, and the seriousness of any incident” in choosing a
consequence or intervention.
Blockinger testified that she believed the consequences chosen to
discipline Mintz were appropriate. She explained Mintz was a “good student in
the classroom” with “very few referrals” to her office until March 2005. According
to Blockinger, the typical punishment for fighting—and the most an assistant
principal could impose—was a three-day suspension. She testified that “in all the
years I‟ve been in this job, we have not gone to expulsion on a fight that I know
of.” Blockinger did not recommend a long-term suspension or expulsion after
Mintz‟s third fight because one of the students involved in the fight was known to
make “lots of racial remarks and bully[ ] people in the building.” She believed
that student initiated the fight by mocking Mintz. Blockinger also explained that
7
all of the fights Mintz was involved in were “mutual fights,” which was a
consideration in the discipline she imposed on Mintz.
The school district‟s superintendent, John Burgart, testified that school
officials acted appropriately in disciplining Mintz prior to the incident involving
Lauren. He believed they “took each incident as it occurred and attempted to
understand each incident thoroughly, investigated . . . what the causes were . . .
and gave each incident its own separate consideration in assigning discipline that
they believed was appropriate.” Burgart testified that “just as teaching is not an
exact science, neither is the act of administration of discipline.” He explained,
“Every student is entitled to be handled individually and every case of
misbehavior has a context that the administrator is responsible for investigating
and understanding before making a decision about discipline.”
Upon considering the record in the light most favorable to the verdict, we
believe substantial evidence supports the jury‟s determination that the Herrigs did
not prove that the defendants breached their “affirmative duty to take all
reasonable steps to protect its students.” Doe, 652 N.W.2d at 446; see also
Godar v. Edwards, 588 N.W.2d 701, 708 (Iowa 1999) (“A school district cannot
be held liable for actions that are not foreseeable when reasonable measures of
supervision are employed . . . and there is adequate consideration being given
for the safety and welfare of all students in the school.”). While the Herrigs are
able to point to evidence supporting their position, so too can the defendants.
See Grinnell Mut. Reins. Co. v. Voeltz, 431 N.W.2d 783, 785 (Iowa 1988)
(“Evidence is not insubstantial merely because it would have supported contrary
8
inferences.”). We cannot say the defendants‟ supposed negligence in failing to
remove Mintz from school prior to the BB gun incident was “so palpable that
reasonable minds could not differ in the conclusion” that the defendants were
negligent. Hines v. Chicago, M. & St. P. Ry. Co., 196 Iowa 109, 116, 194 N.W.
188, 191 (1923). The district court thus did not err in denying the Herrigs‟ motion
for new trial and refusing to conclude as a matter of law that defendants were
negligent. See Peters, 419 N.W.2d at 394.
Along these same lines, we must also deny the Herrigs‟ claim that the
jury‟s verdict in favor of the defendants was in violation of public policy. The
Herrigs argue “if this verdict stands, it will be a risk imposed on all of Iowa‟s
school children, undermining a vital and critical public policy” regarding the “duty
imposed on schools for the care and safety of our children.” We do not believe
this is an assignment of error upon which we can base reversal. See In re Estate
of Willisen, 251 Iowa 1363, 1376-77, 105 N.W.2d 640, 649 (1960) (rejecting
appellants‟ contention that jury‟s verdict was against public policy in that it
approved bad legal ethics). The question of whether the defendants breached
their duty of care to ensure the safety of the students in its charge was a question
of fact, properly decided by the jury.
IV.
CONCLUSION.
We find sufficient evidence in the record to support the jury‟s verdict in
favor of the defendants. We therefore conclude the district court did not err in
denying the motion for new trial. The judgment of the district court is affirmed.
AFFIRMED.
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