Lange v. City of Des Moines

404 N.W.2d 585, 1987 Iowa App. LEXIS 1547
CourtCourt of Appeals of Iowa
DecidedFebruary 25, 1987
Docket86-276
StatusPublished
Cited by2 cases

This text of 404 N.W.2d 585 (Lange v. City of Des Moines) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lange v. City of Des Moines, 404 N.W.2d 585, 1987 Iowa App. LEXIS 1547 (iowactapp 1987).

Opinion

HAYDEN, Judge.

On January 1, 1983, the plaintiff, Fred Lange, a thirty-three year old mildly retarded man, was sexually abused by another prisoner while incarcerated in the Des Moines Municipal Jail on a public intoxication charge. On May 23, 1983, Lange filed a petition at law against the City of Des Moines, seeking damages for injuries which he alleged resulted from the city’s negligent supervision of the jail. A jury trial commenced on November 18, 1985.

Prior to trial the city filed a motion in limine seeking to exclude evidence regarding the installation or existence of surveillance equipment. The trial court orally sustained the motion as to any evidence concerning surveillance equipment in any other jail, but overruled this motion as to the existence of this equipment in the city jail on the date of the occurrence. During closing arguments plaintiff’s trial counsel, Mr. Piazza, was interrupted three times by the city’s counsel, Mr. Braud. The initial *586 objection came during Mr. Piazza’s argument, when he referred to the close circuit cameras used by Quik Trip stores:

MR. PIAZZA: They have no intercom. If they had a little speaker box, prisoner might have said: Jailer there is something here I think you ought to see. Thank you. I’ll be right in.
Quik Trips have little camera—
MR. BRAUD: Your Honor, I’m going to object to that as improper.
MR. PIAZZA: I’ll withdraw that. There was no—
MR. BRAUD: I would request the Court instruct the jury that comparison to Quik Trip is not appropriate.
THE COURT: Jury should disregard that portion of the record.

Further into his argument Mr. Piazza implied that the city’s negligence was ongoing and the following exchange occurred:

MR. PIAZZA: Mr. Braud suggested he doesn’t have a client sitting here with him. He’s got a briefcase. I suggest he does have a client. He has or could have had the City Council or City of Des Moines that was in existence in 1982 because they are the elected representatives of the defendant, and let them be here. Are they too ashamed to be here? The policy setters. When will it stop. Fred Lange—
MR. BRAUD: I’m going to object, Your Honor. This is something that needs to be stopped. Improper closing argument.
THE COURT: I assume that you’re talking about the negligence of the city employees?
MR. PIAZZA: That’s correct, Your Hon- or.
MR. BRAUD: Implies ongoing negligence, as well, Your Honor.
MR. PIAZZA: I make no suggestion that there is any ongoing.
And if you got that impression, I humbly apologize.
THE COURT: You may continue, Mr. Piazza.

At the end of his closing argument, Mr. Piazza referred to Lange’s economic status as follows:

MR. PIAZZA: Yes, he’s finally had his day in court. He doesn’t have to pay any fines if he loses. He’s got to pay the court costs. And knowing Fred, he’ll pick up cans if he loses this case; and he’ll pay his court costs because he’s paid every debt he has ever owed to society. The City, on the other hand, they have a responsibility.
MR. BRAUD: Your Honor, I’m going to object to that as improper closing argument, saying that he needs the money to pay for this case.
MR. PIAZZA: I didn’t suggest that at all. I said that he will go and pick cans and he will earn the money if he loses this case to pay his court costs.
MR. BRAUD: I am going to object. That is improper closing argument.
MR. PIAZZA: I’ll withdraw that portion, Mr. Braud. Your objection is respected.

On November 21, 1985, the jury returned a verdict in favor of Mr. Lange, awarding him $75,000 in damages, and the trial court entered judgment against the city. The city’s motions for new trial and judgment n.o.v. were overruled on January 20, 1986.

We note that our review of the trial court is limited to errors in law. Iowa R.App.P. 4. Therefore, this case is reviewed as tried in the court below. Mosebach v. Blythe, 282 N.W.2d 755, 758 (Iowa Ct.App.1979). If supported by substantial evidence and justified as a matter of law, the judgment will not be disturbed on appeal. Atlantic Veneer Corp. v. Sears, 232 N.W.2d 499, 502 (Iowa 1975); Iowa R.App.P. 14(f)(1). But the reviewing court is not bound by the trial court’s determination of law. Mosebach, 282 N.W.2d at 759.

Defendant contends the trial court abused its discretion in overruling its motion for new trial based upon the alleged prejudicial remarks of plaintiff’s counsel in closing argument and these remarks’ cumulative effect on the jury. The trial court has broad discretion in ruling on motions for new trials and only when there is a clear abuse of that discretion will we interfere with a ruling upon the motion. Thompson v. Rozeboom, 272 N.W.2d 444, 446 (Iowa 1978); Houvenagle v. Wright, *587 340 N.W.2d 783 (Iowa Ct.App.1983). We will consider each objection made by the city to the plaintiffs closing argument separately.

I.

Defendant argues plaintiffs counsel through his first allegedly prejudicial remark violated the trial court’s ruling on the defendant’s motion in limine.

When counsel makes an improper remark in the course of the closing argument, it is the duty of the aggrieved party to object and thereby provide the trial court with an opportunity to admonish counsel or instruct the jury as it may see fit. Andrews v. Struble, 178 N.W.2d 391, 401 (Iowa 1970). Here, city’s counsel correctly objected to the line of questioning and alerted the court to plaintiff’s counsel’s transgressions. “Ordinarily where a trial court in response to requests promptly admonishes the jury to disregard an improper argument there is not prejudicial error.” Turner v. Jones, 215 N.W.2d 289, 291 (Iowa 1974). There are matters which when put before a jury are so prejudicial that no admonition can erase them. Schroedl v. McTague, 259 Iowa 627, 644, 145 N.W.2d 48, 58 (1966). As recognized by the defendant in its appellate brief, this admonition cured any prejudice in this occurrence.

II.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
404 N.W.2d 585, 1987 Iowa App. LEXIS 1547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lange-v-city-of-des-moines-iowactapp-1987.