IN THE COURT OF APPEALS OF IOWA
No. 16-1885 Filed August 16, 2017
ANISSA GERARD, Plaintiff-Appellant,
vs.
CITY OF NORTH LIBERTY, IOWA and MITCHELL SEYMOUR, individually and as Police Officer for City of North Liberty, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Lars G.
Anderson, Judge.
Anissa Gerard appeals following a jury verdict in favor of the City of North
Liberty and North Liberty Police Officer Mitchell Seymour on a negligence claim.
AFFIRMED.
David A. O’Brien of David O’Brien Law, Cedar Rapids, for appellant.
Bradley J. Kaspar and Terry J. Abernathy of Pickens, Barnes & Abernathy
Law Firm, Cedar Rapids, for appellees.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2
VAITHESWARAN, Presiding Judge.
North Liberty police arrested Anissa Gerard after she acted belligerently.
When officers were moving her within the police station, she missed a step and
fell. Gerard sued the City of North Liberty and Officer Mitchell Seymour for
negligence in failing to warn her of the step and in failing to protect her from
falling down the step. A jury found they were not at fault.
On appeal, Gerard (1) challenges the district court’s failure to give the jury
her proposed instruction on a special duty of care owed by the defendants and
(2) contends the jury verdict was not supported by substantial evidence.
I. Jury Instruction
Gerard asked the court to give the jury the following definition of
negligence:
“Negligence” means failure to use ordinary care. Ordinary care is the care which a reasonably careful person would use under similar circumstances. “Negligence” is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances. In this case the defendants’ duty to the plaintiff went beyond “ordinary care.” As the result of taking the plaintiff into custody and handcuffing her hands and arms behind her back plaintiff lost her normal ability of self-protection. Therefore, the defendants owed a special duty to aid and protect plaintiff from injury.
(Emphasis added.) The district court elected to give the un-italicized portion,
which is identical to the Iowa State Bar Association’s Jury Instruction 700.2. See
Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 615-16 (Iowa
2017); Iowa Civ. Jury Inst. 700.2.
The district court also gave the jury the following instruction: 3
Law enforcement officers have a duty of ordinary care to aid and protect those individuals who are under their custody and control and whose freedom has been imposed upon such that they have lost their normal opportunity for self-protection. In this case, Defendant Seymour had such a duty to Plaintiff at the time of the accident at issue and therefore was obligated to act as a reasonably careful law enforcement officer would under similar circumstances in aiding and protecting Plaintiff.
(Emphasis added.) On appeal, Gerard argues the defendants’ duty to her “went
beyond ‘ordinary care’” to a “special duty of care” as a “result of taking her into
custody and handcuffing her hands and arms behind her back.” As the district
court stated, Gerard conflates two concepts: “special relationships” and “duty of
care.”
The general rule, as set forth in Restatement (Second) of Torts section
314 is as follows: “The fact that the actor realizes or should realize that action on
his part is necessary for another’s aid or protection does not of itself impose upon
him a duty to take such action.” Restatement (Second) of Torts § 314 (Am. Law
Inst. 1965). Comment a to this section states, “Special relations may exist
between the actor and the other, as stated in § 314A, which impose upon the
actor the duty to take affirmative precautions for the aid or protection of the
other.” Id. § 314 cmt. a. Section 314A, in turn, sets forth several “special
relations,” including the following: “(4) One who is required by law to take or who
voluntarily takes the custody of another under circumstances such as to deprive
the other of his normal opportunities for protection is under a similar duty to the
other.” Id. § 314A. Significantly, one of the comments to section 314A states:
“The duty in each case is only one to exercise reasonable care under the
circumstances.” Id. § 314A cmt. e. 4
The Iowa Supreme Court agreed with this articulation of the duty of care in
Hildenbrand v. Cox, 369 N.W.2d 411, 415 (Iowa 1985). There, the court
reaffirmed “the general rule that a person owes no duty to act for the protection of
others unless the actor has a special relationship to the other person.”
Hildebrand, 369 N.W.2d at 415. The court looked to the Restatement to “identify
the special relationships and circumstances under which liability can be imposed
on the actor” and cited the relationship quoted above. Id. (citing Restatement
(Second) of Torts § 314A(4)). The court did not impose a heightened duty of
care, characterizing the duty as one of reasonable care. See id. (citing Smith v.
Miller, 40 N.W.2d 597, 600 (Iowa 1950) (“When a sheriff, by virtue of his office,
has arrested and imprisoned a human being, he is bound to exercise ordinary
and reasonable care, under the circumstances of each particular case, for the
preservation of his life and health.” (citation omitted))).
Gerard cites Daniels v. Williams, 474 U.S. 327 (1986), in support of a
heightened duty of care. There, an inmate filed a civil rights action under 42
U.S.C. § 1983 “to recover for back and ankle injuries allegedly sustained when
he fell on a prison stairway.” Daniels, 474 U.S. at 328. The court held the
conduct did not amount to a constitutional deprivation, although it might have
stated a claim for common law negligence. Id. at 332. In explaining the
difference, the Court stated “lack of due care suggests no more than a failure to
measure up to the conduct of a reasonable person.” Id. The Court did not adopt
a special duty of care.
Tinius v. Carroll County Sheriff Department, 321 F. Supp. 2d 1064, 1084-
85 (N.D. Iowa 2004), cited by Gerard, also is unavailing. There, the United 5
States District Court stated, “Iowa courts have determined that law enforcement
officers have a duty of care to protect detainees from personal harm.” Tinius, 321
F. Supp. 2d at 1084-85 (citing Hildenbrand, 369 N.W.2d at 415, and Smith, 40
N.W.2d at 598-600). The court continued, “Thus, when an individual is detained
or placed in some sort of custody, he is owed a common law duty of care.” Id. at
1085 (emphasis added).
We conclude the defendants owed Gerard an ordinary, common law duty
of care. The district court did not err in declining to instruct the jury on a
heightened duty of care. See Alcala v.
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IN THE COURT OF APPEALS OF IOWA
No. 16-1885 Filed August 16, 2017
ANISSA GERARD, Plaintiff-Appellant,
vs.
CITY OF NORTH LIBERTY, IOWA and MITCHELL SEYMOUR, individually and as Police Officer for City of North Liberty, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Lars G.
Anderson, Judge.
Anissa Gerard appeals following a jury verdict in favor of the City of North
Liberty and North Liberty Police Officer Mitchell Seymour on a negligence claim.
AFFIRMED.
David A. O’Brien of David O’Brien Law, Cedar Rapids, for appellant.
Bradley J. Kaspar and Terry J. Abernathy of Pickens, Barnes & Abernathy
Law Firm, Cedar Rapids, for appellees.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2
VAITHESWARAN, Presiding Judge.
North Liberty police arrested Anissa Gerard after she acted belligerently.
When officers were moving her within the police station, she missed a step and
fell. Gerard sued the City of North Liberty and Officer Mitchell Seymour for
negligence in failing to warn her of the step and in failing to protect her from
falling down the step. A jury found they were not at fault.
On appeal, Gerard (1) challenges the district court’s failure to give the jury
her proposed instruction on a special duty of care owed by the defendants and
(2) contends the jury verdict was not supported by substantial evidence.
I. Jury Instruction
Gerard asked the court to give the jury the following definition of
negligence:
“Negligence” means failure to use ordinary care. Ordinary care is the care which a reasonably careful person would use under similar circumstances. “Negligence” is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances. In this case the defendants’ duty to the plaintiff went beyond “ordinary care.” As the result of taking the plaintiff into custody and handcuffing her hands and arms behind her back plaintiff lost her normal ability of self-protection. Therefore, the defendants owed a special duty to aid and protect plaintiff from injury.
(Emphasis added.) The district court elected to give the un-italicized portion,
which is identical to the Iowa State Bar Association’s Jury Instruction 700.2. See
Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 615-16 (Iowa
2017); Iowa Civ. Jury Inst. 700.2.
The district court also gave the jury the following instruction: 3
Law enforcement officers have a duty of ordinary care to aid and protect those individuals who are under their custody and control and whose freedom has been imposed upon such that they have lost their normal opportunity for self-protection. In this case, Defendant Seymour had such a duty to Plaintiff at the time of the accident at issue and therefore was obligated to act as a reasonably careful law enforcement officer would under similar circumstances in aiding and protecting Plaintiff.
(Emphasis added.) On appeal, Gerard argues the defendants’ duty to her “went
beyond ‘ordinary care’” to a “special duty of care” as a “result of taking her into
custody and handcuffing her hands and arms behind her back.” As the district
court stated, Gerard conflates two concepts: “special relationships” and “duty of
care.”
The general rule, as set forth in Restatement (Second) of Torts section
314 is as follows: “The fact that the actor realizes or should realize that action on
his part is necessary for another’s aid or protection does not of itself impose upon
him a duty to take such action.” Restatement (Second) of Torts § 314 (Am. Law
Inst. 1965). Comment a to this section states, “Special relations may exist
between the actor and the other, as stated in § 314A, which impose upon the
actor the duty to take affirmative precautions for the aid or protection of the
other.” Id. § 314 cmt. a. Section 314A, in turn, sets forth several “special
relations,” including the following: “(4) One who is required by law to take or who
voluntarily takes the custody of another under circumstances such as to deprive
the other of his normal opportunities for protection is under a similar duty to the
other.” Id. § 314A. Significantly, one of the comments to section 314A states:
“The duty in each case is only one to exercise reasonable care under the
circumstances.” Id. § 314A cmt. e. 4
The Iowa Supreme Court agreed with this articulation of the duty of care in
Hildenbrand v. Cox, 369 N.W.2d 411, 415 (Iowa 1985). There, the court
reaffirmed “the general rule that a person owes no duty to act for the protection of
others unless the actor has a special relationship to the other person.”
Hildebrand, 369 N.W.2d at 415. The court looked to the Restatement to “identify
the special relationships and circumstances under which liability can be imposed
on the actor” and cited the relationship quoted above. Id. (citing Restatement
(Second) of Torts § 314A(4)). The court did not impose a heightened duty of
care, characterizing the duty as one of reasonable care. See id. (citing Smith v.
Miller, 40 N.W.2d 597, 600 (Iowa 1950) (“When a sheriff, by virtue of his office,
has arrested and imprisoned a human being, he is bound to exercise ordinary
and reasonable care, under the circumstances of each particular case, for the
preservation of his life and health.” (citation omitted))).
Gerard cites Daniels v. Williams, 474 U.S. 327 (1986), in support of a
heightened duty of care. There, an inmate filed a civil rights action under 42
U.S.C. § 1983 “to recover for back and ankle injuries allegedly sustained when
he fell on a prison stairway.” Daniels, 474 U.S. at 328. The court held the
conduct did not amount to a constitutional deprivation, although it might have
stated a claim for common law negligence. Id. at 332. In explaining the
difference, the Court stated “lack of due care suggests no more than a failure to
measure up to the conduct of a reasonable person.” Id. The Court did not adopt
a special duty of care.
Tinius v. Carroll County Sheriff Department, 321 F. Supp. 2d 1064, 1084-
85 (N.D. Iowa 2004), cited by Gerard, also is unavailing. There, the United 5
States District Court stated, “Iowa courts have determined that law enforcement
officers have a duty of care to protect detainees from personal harm.” Tinius, 321
F. Supp. 2d at 1084-85 (citing Hildenbrand, 369 N.W.2d at 415, and Smith, 40
N.W.2d at 598-600). The court continued, “Thus, when an individual is detained
or placed in some sort of custody, he is owed a common law duty of care.” Id. at
1085 (emphasis added).
We conclude the defendants owed Gerard an ordinary, common law duty
of care. The district court did not err in declining to instruct the jury on a
heightened duty of care. See Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707
(Iowa 2016) (setting forth standard of review).
II. Substantial Evidence
Gerard contends the jury verdict is not supported by substantial evidence.
Gerard raised this issue in a new trial motion, which the district court denied.
Because a challenge to the sufficiency of the evidence presents a legal question,
our review of the court’s ruling is for correction of errors at law. Fry v. Blauvelt,
818 N.W.2d 123, 128 (Iowa 2012).
The jury was instructed Gerard would have to prove the following
propositions:
1. That Defendant Seymour was negligent in one or more of the following ways: a. In failing to warn Plaintiff of an upcoming step; and/or b. In failing to protect Plaintiff from falling down the step 2. The negligence was a cause of damage to the Plaintiff 3. The amount of damage. If the Plaintiff has failed to prove any of the numbered propositions, the Plaintiff is not entitled to damages. If Plaintiff has 6
proved all of these propositions, you will consider the defenses of comparative fault, as explained to you in Instruction Nos. 15-17.
Gerard asserts “the jury was instructed that the failure to warn was
negligence” rather than simply “‘evidence’ of negligence.” See, e.g., Winger v.
CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016) (discussing negligence
“as a matter of law,” e.g. negligence per se, as compared to evidence of
negligence). In her view, the evidence was undisputed that Seymour failed to
warn her of the step and, accordingly, “[n]o reasonable and unbiased jury could
have . . . found” he was not at fault. Again, Gerard conflates several concepts:
“negligence,” “negligence per se,” “specifications of negligence,” and the duty of
care.
“Negligence is a common-law tort that is generally defined as conduct that
‘falls below the standard established by law for the protection of others against
unreasonable risk of harm.’” Seeman v. Liberty Mut. Ins. Co., 322 N.W.2d 35, 37
(Iowa 1982) (quoting Restatement (Second) of Torts § 282). “An element of
negligence is a duty or standard of care owed by the actor to the victim.” Id.
(citation omitted). “The duty or standard of care, statutory or otherwise, is merely
an element of proof that comes into play after an action has been rightfully
commenced pursuant to the preexisting common-law cause of action.” Id. In
other words, the concept of negligence includes the allegedly problematic
conduct set forth in the specifications of negligence, as well as evidence that the
conduct is inconsistent with the duty of care. See Schroeder v. Albaghadadi, 744
N.W.2d 651, 655 (Iowa 2008) (“For each act of negligence the court submits to
the jury, it must tell the jury the legal duty owed by the defendant.”); Anderson v. 7
Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000) (noting the
district court gave instructions “that told the jury to specifically consider the
standard of reasonable care in light of the particular specifications of
negligence”). The negligence per se doctrine affords a “presumption that the
defendant has violated the legal duty to exercise due care” where “a statute or
regulation . . . provides a rule of conduct specifically designed for the safety and
protection of a certain class of persons, and a person within that class receives
injuries as a proximate result of a violation of the statute or regulation.”
Wiersgalla v. Garrett, 486 N.W.2d 290, 292 (Iowa 1992).
As the defendants point out, the negligence per se doctrine is inapplicable.
This is a straightforward negligence case requiring proof of the specifications of
negligence and violation of a duty of care. Although the failure-to-warn
specification was undisputed, whether this conduct violated the “duty of ordinary
care” set forth in a separate instruction was disputed and was for the jury to
decide.
The jury reasonably could have found Seymour’s conduct in failing to warn
of the step did not violate this duty of care. The jury could have credited
Seymour’s testimony that he stayed close to Gerard and helped her walk down
the hallway and she did not make it easy, with her “very sudden and abrupt” turn
and her attempt to spit on him. As he stated, “I believe that everyone’s safety is
important, but just because I’m a police officer doesn’t make me a biowaste
receptacle or punching bag. I wanted to protect Ms. Gerard to the best of my
abilities, but I can’t control her behavior.” 8
We conclude the district court did not err in declining to give Gerard’s
proposed instruction on negligence and in determining the jury’s verdict was
supported by substantial evidence.