Johnston v. NORFOLK SOUTHERN CORPORATION

448 N.W.2d 486, 1989 WL 141488
CourtSupreme Court of Iowa
DecidedDecember 21, 1989
Docket88-1617
StatusPublished
Cited by3 cases

This text of 448 N.W.2d 486 (Johnston v. NORFOLK SOUTHERN CORPORATION) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. NORFOLK SOUTHERN CORPORATION, 448 N.W.2d 486, 1989 WL 141488 (iowa 1989).

Opinions

CARTER, Justice.

Defendant Norfolk Southern Corporation and its subsidiary, defendant Norfolk and Western Railway Company (hereinafter referred to collectively as Norfolk), appeal from a judgment against them in favor of plaintiffs, Robert E. Johnston and Delores M. Johnston. Plaintiffs had sought recovery for the subsidence of their property as a result of a landslide allegedly caused by defendants’ negligence. The jury awarded the plaintiffs $12,000 in compensatory damages and $200,000 in punitive damages.1

Norfolk contends on appeal that it should have been granted a directed verdict on all claims and, in the alternative, that the amount of punitive damages awarded was excessive. Upon considering the claims of the parties, we affirm the judgment for actual damages, reverse the judgment for punitive damages, and remand the case to the district court for retrial of the punitive damage issues.

Norfolk operates a railroad running through central Iowa. In the mid-1960s a segment of its railroad track had to be relocated to accommodate the Red Rock Dam Reservoir project. The relocation, which was designed by the United States Army Corps of Engineers, required a cut to be made in an existing hillside adjacent to plaintiffs’ property.

Norfolk began using the relocated tracks in 1967 and experienced no problems with the adjacent terrain for the first six years following the relocation. Sometime in 1973, however, dirt began sliding down the hillside located between the property owned by plaintiffs and the railroad tracks. Evidence presented at the trial indicated that the cause of this instability was the cut which had been made in the hillside at the time of the track relocation.

Between 1973 and 1984, Norfolk was frequently required to remove dirt that slid onto or near the railroad tracks. In 1984 and 1985, it undertook an extensive project to reslope the hillside, hoping to alleviate the landslide problem. Shortly following this work, a segment of the hillside on plaintiffs’ property subsided from the adjacent land leaving a vertical cliff. Approximately 1.43 acres of plaintiffs’ 14.3-acre tract was lost in the process. Evidence offered at the trial indicated that, unless the hillside is effectively stabilized, an additional 2.8 acres of plaintiffs’ property will ultimately be lost in like manner. Other evidence indicated that plaintiffs’ property valued at $3000 per acre was suitable for residential development.

The plaintiffs’ expert witness testified that the method employed by Norfolk in reshaping the hillside was a “totally unacceptable” engineering technique for dealing with the landslide problem. This witness testified that the subsidence of plaintiffs’ property was fully predictable given the nature of Norfolk’s activities. Additional facts bearing on the case will be discussed in our consideration of the legal issues presented.

I. Whether Norfolk Was Entitled to a Directed Verdict.

Norfolk contends that it was entitled to a directed verdict on plaintiffs’ damage claims. In arguing this point, Norfolk concedes that a jury issue existed concerning whether or not it reshaped the embankment in a negligent manner. It contends, however, that there was insufficient evidence to generate a jury question as to the [488]*488required causal relationship between any negligence on its part and the damage to plaintiffs’ property.

As a basis for this claim, Norfolk relies on certain testimony by plaintiffs' expert witness on cross-examination. This testimony was as follows:

Q. Okay. And if you had that situation where you had this landslide created by the unnatural valley, would you expect the hillside to continue to erode until it reached some kind of stable slope? A. Yes.
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Q. Okay. Isn’t it true then that you cannot say, based on a reasonable degree of engineering certainty, how much erosion of the 1.43 is due to the roadbed improvement project performed by the railroad in 1984 and 1985, because of the limited information you have in this case, and how much is due to whatever preexisting condition there was? A. That’s true.

In considering Norfolk’s contentions, we note that the existence or nonexistence of a material fact is seldom established by reference to isolated statements of an adverse, witness on cross-examination. See Cork-' ery v. Greenberg, 253 Iowa 846, 850, 114 N.W.2d 327, 329 (1962). The cross-examination of plaintiffs’ expert which is quoted above does not constitute all of the testimony of that witness bearing on the issue of proximate cause. On direct examination, the witness had testified as follows:

Q. [Wjhat is your opinion, based on reasonable engineering certainty, concerning the causal connection between what the railroad did in 85 in removing the toe and what it failed to do in attempting to stabilize the slide with respect to Bob Johnston’s ground being destroyed? A. I feel that it initiated a renewal of landsliding.
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Q. And can you state based on reasonable engineering certainty, whether or not the actions of the railroad in 1985 in removing the dirt that it did and eut-ting back to the Johnstons’ property line very materially aggravated the condition that existed? A. It did.
Q. And can you state based on reasonable engineering certainty whether or not it was a certainty at that point in time that Bob Johnston and Dee Johnston’s ground was going to chunk off and slide down the hill? A. Yes.
Q. And what is that opinion? A. That it would occur.

In attempting to reconcile the testimony of this witness on direct and cross-examination, the jury could have found that it was his expert opinion that the action of Norfolk in 1985 caused the landslide upon which plaintiffs’ claims were based.

Although plaintiffs’ expert witness recognized that a preexisting condition was part of the cause of the landslide, that circumstance does not necessarily free Norfolk of causal responsibility. It does not appear from the evidence that, absent Norfolk’s negligence, the preexisting condition would have produced a landslide at the same time and to the same extent as that which caused plaintiffs’ property to subside. Norfolk had been operating its railroad over the relocated segment for seventeen years prior to the landslide occasioned by its 1985 restoration project. Consequently, we believe it was required to deal with its property in full recognition of the condition in which it existed.2

Even if preexisting conditions are considered part of the causal chain leading to the losses which plaintiffs sustained, the resulting harm cannot be apportioned between the probable consequences of the preexisting conditions and the consequences resulting from Norfolk’s negligence acting upon those conditions. As a result, we believe that the rule set forth in Restatement (Second) of Torts section 879 (1979) applies. That rule provides:

If the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irre[489]*489spective of whether their conduct is concurring or consecutive.

Id.

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Johnston v. NORFOLK SOUTHERN CORPORATION
448 N.W.2d 486 (Supreme Court of Iowa, 1989)

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448 N.W.2d 486, 1989 WL 141488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-norfolk-southern-corporation-iowa-1989.