                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0734
                              Filed April 22, 2015


KIMBERLY ANN SALLEE, Individually and
as Next Friend of LUCAS GREGORY DURKOP,
MARIA CHRISTINA RIVERA, and MATTHEW JAMES SALLEE;
and JAMES ALLAN SALLEE,
      Plaintiffs-Appellants,

vs.

MATTHEW R. STEWART and DIANA STEWART,
d/b/a STEWARTLAND HOLSTEINS,
       Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, John J.

Bauercamper, Judge.



      Kimberly Ann Sallee appeals from an adverse jury verdict asserting the

district court erred in several respects. AFFIRMED.




      D. Raymond Walton of Beecher Law Offices, Waterloo, for appellants.

      Karla J. Shea of McCoy, Riley & Shea, P.L.C., Waterloo, for appellees.



      Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
                                           2


DOYLE, J.

       Kimberly Ann Sallee1 appeals from an adverse jury verdict. She asserts

the district court erred in failing to direct a verdict on the issue of the defendants’

negligence in her favor or grant her motion for judgment notwithstanding the

verdict. She also asserts the court made instructional errors. Finally she asserts

the district court erred in denying her motion for new trial. We affirm.

I.     Background Facts and Proceedings

       While accompanying kindergarten students on a field trip to a dairy farm,

chaperone Kimberly Ann Sallee was injured when she fell through a hole in the

floor of a hayloft. Sallee filed a negligence suit against the dairy farm’s owners,

Matthew and Diana Stewart.         The Iowa Supreme Court’s opinion, on further

review of the district court’s summary judgment ruling, sets forth the factual

background of this case as follows:

       Matthew and Diana Stewart own a dairy farm in Fayette County.
       Although the Stewarts do not routinely open their farm to the public,
       classes or individuals wishing to view the farm can schedule a visit.
       These groups are always accompanied by a member of the Stewart
       family.    If visitors arrive at the farm without a scheduled
       appointment, they are only permitted to tour the farm if
       accompanied by the Stewarts.
               The kindergarteners from the Sacred Heart School have
       been annual visitors for a number of years. During their visit, the
       students learn about the typical day on a farm. The students are
       usually chaperoned by their teacher, a few parents, and at least
       one member of the Stewart family. The Stewarts do not permit the
       students to go into cattle pens or other places where the Stewarts
       believe the students might be in danger.
               On May 18, 2010, Sallee accompanied her daughter’s
       Sacred Heart kindergarten class on a tour of the Stewarts’ farm. As
       with other visits to the farm, the field trip was scheduled in advance.
       The Stewarts accompanied the students during their visit and set

1
 Sallee filed this suit for damages on behalf of herself, her children, and her husband.
We refer to the plaintiffs collectively as Sallee.
                                        3


      up three stations for the students. At one station, the students rode
      a horse in a round pen. At another, the students could feed a calf
      with a bottle of milk. At the third station, the students could view a
      tractor. Matthew supervised the entire process, and adults were
      positioned at each station. Once they had rotated through each
      station, the students saw several cows and a bull. The Stewarts
      then guided the group to the barn to allow the students to play in
      the hayloft.
              Matthew asked Sallee and another chaperone to climb into
      the hayloft ahead of the students so that they could assist the
      students at the top of the ladder. After Sallee looked at the ladder,
      Matthew reassured her it was stable enough to support her weight.
      Sallee followed the other chaperone up the ladder and into the
      hayloft.    The children, another chaperone, the teacher, and
      Matthew followed. Matthew advised Sallee to keep the students
      away from the hole in the floor where the ladder was located and
      warned the students not to climb too high on the bales of hay piled
      to one side of the loft. While in the hayloft, the children ran around
      and climbed on the hay bales.
              The Stewarts never advised Sallee as to the presence of
      several hay drops, rectangular holes in the floor of the hayloft
      through which hay can be thrown to the animals below. Ordinarily,
      the Stewarts stack bales of hay across the holes when they are not
      in use to insulate the lower part of the barn. Prior to the class’s
      arrival, Matthew inspected the hayloft and stood on the bales of hay
      covering the holes to make sure they would support his weight.
      However, while Sallee was standing on top of a bale covering one
      of the holes, the bale gave way. Sallee fell through the hole,
      breaking her wrist and leg.

Sallee v. Stewart, 827 N.W.2d 128, 131-32 (Iowa 2013) (footnote omitted)

(vacating Sallee v. Stewart, No. 11-0892, 2012 WL 652039 (Iowa Ct. App. Feb.

29, 2012)).

      Sallee filed suit against the Stewarts, alleging their negligence caused her

injuries. Sallee, 827 N.W.2d at 132. As an affirmative defense, the Stewarts

asserted Iowa Code chapter 461C (2009), Iowa’s recreational use statute,

shielded them from liability. Id. The Stewarts subsequently filed a motion for

summary judgment based on the recreational use statute.          Id.   Determining

Sallee to be a “recreational user,” the district court concluded the recreational
                                              4

use statute barred her claim. Id. Sallee’s appeal was transferred to this court,

where a majority agreed with the district court and affirmed its summary

judgment ruling on this issue.2 Sallee, 2012 WL 652039 at *11. Dissenting in

part, one judge disagreed on this issue, concluding Sallee was present as a

chaperone and not for any recreational purpose, and therefore chapter 461C did

not apply. Id. at *13.

       On further review, the supreme court concluded, “[T]he activities which

occurred in the hayloft do not constitute recreational uses under the Iowa

statute. . . . As a result, the district court erred in granting summary judgment for

the defendants based on the limited immunity provided in Iowa’s recreational use

statute.” Sallee, 827 N.W.2d. at 153. The court remanded the case to the district

court for trial.3 Id. at 154.

       A jury trial took place in February 2014. The district court denied Sallee’s

motion for directed verdict on the Stewarts’ liability made at the conclusion of her

case-in-chief and also at the close of all the evidence.               The jury found the

Stewarts not at fault and returned a verdict in their favor.              The district court

denied Sallee’s motions for judgment notwithstanding the verdict and for new

trial. Sallee now appeals.




2
  As to Sallee’s tour guide liability claims, this court reversed the district court’s grant of
summary judgment. Sallee, 2012 WL 652039 at *11. The panel was unanimous on this
issue. Id. at *13.
3
  We note the legislature amended chapter 461C after the supreme court’s ruling was
issued in Sallee. See 2013 Iowa Acts ch. 128.
                                         5


II.    Motions for Directed Verdict and Judgment Notwithstanding the

Verdict

       Sallee alleged the Stewarts were negligent in failing to: (1) properly

inspect the hayloft prior to the field trip; (2) safely cover or shield the hay chute

opening so that visitors would not fall through it; (3) warn Sallee of the existence

and location of the hay chute opening; and (4) direct Sallee away from the hay

chute opening.    Sallee contends the district court erred in failing to direct a

verdict in her favor on the issue of the Stewarts’ negligence and in denying her

motion for judgment notwithstanding the verdict (JNOV). She argues there was

no evidence showing that Stewarts were not negligent or that their negligence

was not the cause of her injuries.

       We review a district court’s denial of a motion for directed verdict or JNOV

for correction of errors at law. Iowa R. App. P. 6.907. In addressing the denial of

a directed verdict, we review the facts in the light most favorable to the party

against whom the motion was made. Iowa R. App. P. 6.904(3)(b); Dorshkind v.

Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 296 (Iowa 2013).

Because Sallee made the motion for directed verdict, we review the facts in the

light most favorable to the Stewarts. Our review also takes into consideration all

reasonable inferences that could fairly be made by the jury, regardless of

whether the evidence is contradicted. Dorshkind, 835 N.W.2d at 300. “Every

legitimate inference that reasonably may be adduced from the evidence must be

afforded the nonmoving party; and if reasonable minds can differ as to how the

issue should be resolved, a jury question is engendered.”         Henkel v. R & S

Bottling Co., 323 N.W.2d 185, 187-88 (Iowa 1982). “Our role on appeal is to
                                        6


decide ‘whether the trial court correctly determined there was sufficient evidence

to submit the issue to the jury.’” Id. (quoting Easton v. Howard, 751 N.W.2d 1, 5

(Iowa 2008)).

      A motion for JNOV “is intended to allow the district court to correct any

error in denying a motion for directed verdict.”      Van Sickle Constr. Co. v.

Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010).             The

motion must stand on the grounds raised in the motion for directed verdict. Id.

Our role in reviewing a motion for JNOV “is to decide whether there was

sufficient evidence to justify submitting the case to the jury when viewing the

evidence in the light most favorable to the nonmoving party.” Id. “In reviewing

rulings on a motion for judgment notwithstanding the verdict, we simply ask

whether a fact question was generated.” Royal Indem. Co. v. Factory Mut. Ins.

Co., 786 N.W.2d 839, 846 (Iowa 2010). Sallee concedes success of a plaintiff’s

motion JNOV “has only been achieved in the rarest cases.”

      Generally questions of fault, contributory fault, and causation are for the

jury to decide and only in exceptional cases may they be decided as a matter of

law. See Iowa R. App. P. 6.904(3)(j); Crookham v. Riley, 584 N.W.2d 258, 265

(Iowa 1998). Contrary to Sallee’s position, we do not find this to be one of those

exceptional cases.

      As a part of their field trip, the kindergartners were allowed to play in the

hayloft of the Stewarts’s barn. The floor of the hayloft had a number of holes, or

chutes, through which hay could be dropped to cows in the barn below. When

not in use, the chutes were covered. Matthew testified he inspected the hayloft

the day the kindergarteners visited the farm before they arrived. As a part of his
                                              7


inspection, he stood on the bales of hay covering the chute Sallee later fell

through to determine if the bales were sturdy and solid enough to support

someone’s weight. This chute was located near the entrance to the hayloft.

Matthew further testified he “gave specific instructions” to Sallee and Amy Posey,

the chaperones helping the children in the hayloft. In particular, Matthew testified

he “told [Sallee] exactly where to stand,” and he “didn’t expect she would

disobey.” Matthew explained “[f]alling and safety was on [his] mind” and that is

why he instructed the chaperones to keep the children in the middle of the

hayloft—away from the hay chutes. There were no chutes in the middle of the

hayloft where the children were directed to play. He testified he told Sallee, “I

want you to stay here with the children in the middle of the hayloft.”

       Sallee testified Matthew cautioned her to keep the kids “back from the

doorway so . . . nobody got hurt.” Matthew did not mention the location of the

hay chutes covered with hay bales. Sallee understood she was to keep the kids

away from the doorway and in the middle of the hay loft.

       In applying the above-mentioned principles and in reviewing the evidence

in a light most favorable to the Stewarts, we conclude there was sufficient

evidence to create a jury question on the issue of negligence. Accordingly, we

affirm on this issue.

III.   Comparative Fault Instruction

       Sallee claims the district court “erred in instructing the jury with regard to

the comparative negligence[4] of [Sallee] and/or her unreasonable failure to avoid


4
  At trial, the district court specified it was instructing the jury on “comparative fault”—not
“comparative negligence.”
                                         8


injury.” Specifically, Sallee takes issue with the following jury instructions issued

by the court:

       UNREASONABLE FAILURE TO AVOID INJURY – DEFINED:
              A party is required to exercise reasonable care for their own
       safety. This means that, if, in the exercise of ordinary care under
       the circumstances, a party could have taken some particular action
       after an action of fault of another party, in order to avoid an injury,
       then they are under a duty to take such action.

The jury was further instructed:

       COMPARATIVE FAULT DEFENSE
               The defendants claim that the plaintiff, Kimberly Ann Sallee,
       was at fault in failing to exercise reasonable care for her own
       safety. This ground of fault has been explained to you in other
       instructions.
               The defendants must prove both of these propositions:
               1. The plaintiff Kimberly Ann Sallee unreasonably failed to
       take action to avoid an injury in one or both of these ways:
               [a] She entered the hayloft and failed to be aware of and
       take action to protect herself against potential dangers in a hayloft
       in light of what she knew or should have known; or
               [b] She disregarded Matthew R. Stewart’s instructions
       regarding where to walk and stand in the hayloft.
               2. The fault of the plaintiff, Kimberly Ann Sallee, was a cause
       of the damages claimed by all of the plaintiffs.
               If the defendants have failed to prove either of these
       propositions, the defendants have not proved their defense. If the
       defendants have proved both of these propositions, then you will
       assign a percentage of fault against the plaintiff and include the
       plaintiff’s fault in the total percentage of fault found by you in
       answering the verdict questions.

Comparative fault was defined to the jury as follows:

              Damages may be caused by the fault of more than one
       person. In comparing fault, you should consider all of the
       surrounding circumstances as shown by the evidence, together
       with the conduct of the plaintiff, Kimberly Ann Sallee, and the
       defendants, and the extent of the causal relation between their
       conduct and the damages claimed. You should then determine
       what percentage, if any, the fault of the plaintiff, Kimberly Ann
       Sallee, and the defendants contributed to the damages claimed by
       the plaintiff, Kimberly Ann Sallee.
                                          9


        Sallee contends these instructions were improper in this case because

there was not “a scintilla of evidence to support giving the instructions that

embody these theories.” According to Sallee, “Allowing the Defendants to argue

[Sallee] was responsible for her own injuries, i.e. she should have known that she

was too overweight to go into a hayloft, allowed the jury to conclude that the

Stewarts were not responsible.” We note that the Stewarts never asserted or

argued Sallee was too overweight to go into the hayloft, nor did the court submit

any instructions to the jury that referred to Sallee’s weight or size.

        The fact is the jury did not reach the question of comparative fault

because it answered “No” to the first question on the verdict form, “Were the

[Stewarts] at fault?” Accordingly, because the jury did not reach the issue of

comparative fault, Sallee was not prejudiced by the instructions relating to

comparative fault. See Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 157

(Iowa 2004) (“[R]eversal is not required unless the plaintiff was prejudiced by this

error.”); see also Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993) (“[P]laintiff

could not have been prejudiced by the instructions on her comparative fault. This

case was submitted to the jury on special interrogatories. The jury found that

defendants were not at fault in response to the first question on the verdict form.

Consequently, the jury did not answer the interrogatories concerning plaintiff’s

fault. Therefore, because there could be no prejudice to plaintiff, we need not

address her objection to the submission of instructions on her comparative

fault.”).

        In any event, questions of comparative fault are for the jury, and it is only

in exceptional cases that they may be decided as a matter of law. See Iowa R.
                                         10

App. P. 6.904(3)(j); Crookham, 584 N.W.2d at 265. This is not the exceptional

case. Sufficient evidence was presented on the issue of Sallee’s fault, including

evidence that Matthew Stewart had instructed Sallee to stand in the middle of the

hayloft and had told her to keep the children away from the doorway.

       We find no error in the district court’s submission of the issue of

comparative fault to the jury. We therefore affirm on this issue.

IV.    Medical Plan Payments

       On appeal, Sallee claims the district court “erred in permitting the

defendants’ counsel to raise and argue the existence of a plan or health

insurance covering the medical bills of [Sallee].” Sallee filed a motion in limine to

exclude any reference to Medicaid payments. The Stewarts resisted, agreeing

the fact that the payor was Medicaid was not admissible, but asserted the payor

could be referred to as a “medical insurer” or a “health insurer.” At the hearing

on the motion in limine Sallee’s counsel stated he thought any mention of

insurance was prejudicial. The Stewarts’ counsel agreed that “we don’t want a

jury to know that it’s Medicaid,” but argued she could tell the jury what the

payments were and that if those sums were awarded they would be paid back to

the party that paid them, and could refer to that party as a “health insurer.”

Sallee’s counsel countered,

       I think if you mention anything about health insurance, it makes it
       easier for a jury to say, well, you know, she’s got her medical
       payments made by insurers, so, you know, she’s not—she’s not
       that bad off, the result may be a lower monetary award. I just think
       there is too many problems with saying anything about a medical
       insurer or a health insurer.
                                           11


After further discussion of the subrogation issue was had between the court and

parties’ counsel, the court stated the parties had plenty of time to think about how

the subrogation instruction would be worded, and the court denied Sallee’s

motion in limine.

       In making her argument on appeal, Sallee points to a statement made

during opening statements by counsel for the Stewarts.             During her opening

statement, counsel for the Stewarts stated:

       You’re going to hear some testimony that the $38,000 was paid that
       took care of the damages, always happens, the doctor bills some
       really high amount, the health insurer pays some lower amount,
       and the rest is written off. So $38,000 is the amount that if you
       award it in this action, has to be repaid. It’s just like any other
       health insurance that they pay for you. So there is $38,000 in past
       medicals.

Sallee did not object.5       Under our error preservation rules Sallee had an

obligation to raise an objection or make a motion for mistrial “at the earliest

opportunity in the progress of the case.” See State v. Milner, 571 N.W.2d 7, 12

(Iowa 1997); Carter v. Wiese Corp., 360 N.W.2d 122, 129 (Iowa Ct. App. 1984)

(error properly preserved by making a motion for mistrial immediately after

reference to insurance occurred); Randa v. U.S. Homes, Inc., 325 N.W.2d 905,

909 (Iowa Ct. App. 1982) (waiting until the close of evidence to make motion for

directed verdict did not preserve error concerning the introduction of allegedly

objectionable evidence); see also Thomas A. Mayes & Anuradha Vaitheswaran,

Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55

5
  During her closing statement the Stewarts’ counsel did not mention or argue that Sallee
was covered by medical insurance or a health plan. She merely stated: “Past medical
expense that were paid are $36,566.74, and the instructions make it very clear that
those have to be paid back if and only if they are awarded in this action; otherwise, they
do not have to be paid back.”
                                         12


Drake L. Rev. 39, 64 (2006) (“[A] party claiming opposing counsel has committed

misconduct, or improperly introduced evidence concerning insurance coverage

. . . should move immediately for mistrial.”). Sallee failed to immediately object to

counsel’s opening statement comment, nor did she bring the issue to the court’s

attention at the conclusion of the opening statement. And although it would have

been too late to do so, Sallee failed to raise the issue during the motions made at

the conclusion of the plaintiff’s case-in-chief. Although it would have been too

late to do so, Sallee did not raise the issue during motions made at the close of

evidence.    Waiting to raise the issue concerning the mention of allegedly

objectionable evidence until making a motion for new trial did not preserve error

on this issue for our review.

       The parties’ counsel did have an agreement that the amount billed and the

amount paid would be stipulated.        Sallee’s trial exhibit 18, a compilation of

Sallee’s medical bills, shows the amounts billed and the amounts paid. Payors of

the amounts paid are not reflected on the exhibit. The fact that a portion of

Sallee’s medical bills were paid by Medicaid was not mentioned at trial, either

through testimony or by exhibit.

       Sallee objected to the court submitting the following instruction to the jury:

       MEDICAL EXPENSES PAID
               $36,566.74 of plaintiff Kimberly Ann Sallee’s past medical
       expenses claimed as damages were paid by her medical plan, and
       the medical plan is “subrogated” to the plaintiff’s recovery, if any,
       from the defendants in this case. The “subrogation’’ provisions of
       the medical plan require the plaintiff to repay these past medical
       payments to the medical plan out of any damages you may award
       to her for past medical expenses in this case. However, Kimberly
       Ann Sallee is not required to reimburse her medical plan in any
       amount over and above her past medical expense verdict award in
       this lawsuit.
                                          13


              The existence of the medical plan payments should not
       cause you to find either for or against the plaintiff, nor should it
       cause you to either increase or reduce any amount of damages you
       may award to the plaintiff. There are questions on the verdict form
       for you to answer if you award damages to the plaintiff.

Sallee’s counsel argued the instruction should not be given “for the reasons that

it references subrogation, medical plan, which we think the jury will likely interpret

it as insurance, and we do not believe that that’s appropriate to give under the

law or evidence of this case.” In discussing the instruction, he further stated,

“And I have no objections if the court wants to change the instructions such that

the court can include in there that the difference between what was billed and

what was paid was written off, and that what has been paid will have to be paid

back.” On appeal, Sallee contends the jury should not have been instructed that

her medical bills were paid by a “medical plan.”

       The jury did not reach the issue of damages, so Sallee was not prejudiced

by the challenged instruction. See Pexa, 686 N.W.2d at 157; see also Gore v.

Smith, 464 N.W.2d 865, 868 (Iowa 1991) (holding any alleged error in a damage

instruction could not have prejudiced the plaintiff because the plaintiff had failed

to establish the liability of the defendants). We therefore affirm on this issue.

V.     Negligent Misrepresentation Instruction

       Sallee contends the district court “erred in failing to submit to the jury [her

proposed] instruction on the defendants’ negligent misrepresentations resulting in

physical injury and their negligent performance of a gratuitous undertaking.” 6

“[W]e review a claim that a district court should have given a party’s requested


6
  We note that at the conclusion of Sallee’s case-in-chief the district court granted
Stewarts’s motion for a directed verdict on Sallee’s negligent misrepresentation theory.
                                        14

instruction for an abuse of discretion.” Giza v. BNSF Ry. Co., 843 N.W.2d 713,

719 (Iowa 2014). There are several flaws to Sallee’s claim.

       The Restatement (Second) of Torts defines negligent misrepresentation,

in pertinent part, as follows:

       One who, in the course of his business, profession, or other
       employment, or in any other transaction in which he has a
       pecuniary interest, supplies false information for the guidance of
       others in their business transactions, is subject to liability for
       pecuniary loss caused to them by their justifiable reliance upon the
       information, if he fails to exercise reasonable care or competence in
       obtaining or communicating the information.

Restatement (Second) of Torts § 552, at 126-27 (1977).

       As the Iowa Supreme Court has reiterated, “only those who are in the

business of supplying information to others can be liable for negligent

misrepresentation.” Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 111

(Iowa 2012) (citation and internal quotation marks omitted); see also Freeman v.

Ernst & Young, 516 N.W.2d 835, 838 (Iowa 1994). Sallee does not claim the

Stewarts were in the business of providing information to others.

       Instead, Sallee asks us to address her claim under section 311 of the

Restatement (Second) of Torts, which provides:

               (1) One who negligently gives false information to another is
       subject to liability for physical harm caused by action taken by the
       other in reasonable reliance upon such information, where such
       harm results
               (a) to the other, or
               (b) to such third persons as the actor should expect to be put
       in peril by the action taken.
               (2) Such negligence may consist of failure to exercise
       reasonable care
               (a) in ascertaining the accuracy of the information, or
               (b) in the manner in which it is communicated.
                                          15


Restatement (Second) of Torts § 311, at 106. This section has been mentioned

in only a few Iowa cases. Its use as a basis for liability was approved by the

Iowa Supreme Court in Freese v. Lemmon, 210 N.W.2d 576, 580 (Iowa 1973),

but the Freese court’s application of it as a basis for liability against a physician

was overruled in Schmidt v. Mahoney, 659 N.W.2d 552,              (Iowa 2003).     And

although it does not appear section 311 has been rejected as a basis for liability

in Iowa, see Kolbe v. State, 661 N.W.2d 142, 148 (Iowa 2003), we find no abuse

of discretion in the district court’s refusal to instruct the jury on the theory in this

case because Sallee failed to show any representations by the Stewarts were

proved to be “false information.”

       In this regard, Sallee claims that she, while attending a tour of the

Stewarts’s farm, could reasonably “believe the farm, including the hayloft, would

be safe for them and rely on this implied representation by the Stewarts which

proved to be false.” Sallee also points to Matthew Stewart’s statement to her

regarding the stability of the ladder, and claims his assurance that the ladder

would hold her “expressly guarantee[d] the safety of the hayloft itself.” In other

words, although Sallee does not cite any false information provided to her by the

Stewarts, she asks us to infer from the fact that they did not stop her from going

into the hayloft that it was safe for her to do so. We decline Sallee’s invitation.

       “[A] court is required to give a requested instruction when it states a

correct rule of law having application to the facts of the case and when the

concept is not otherwise embodied in other instructions.” Summy v. City of Des

Moines, 708 N.W.2d 333, 340 (Iowa 2006) (quotation marks and citation

omitted). Because the Stewarts did not provide false information to Sallee, the
                                            16


district court was within its discretion to decline to instruct the jury on negligent

misrepresentation. We affirm on this issue.

VI.    Tour Guide Liability Instruction

       Sallee also takes issue with the district court’s failure to instruct the jury on

the theory of “tour guide” liability. The Sallee’s proposed instruction on the tour

guide liability theory provides, in part:

              3. The Stewarts were negligent in the performance of their
       duties as tour guides in the following particulars:
              a. Failing to properly inspect the hayloft where Kimberly fell
       through to determine its unsafe condition, or
              b. Failing to properly cover the hole that Kimberly fell
       through, or
              c. Failing to properly fence off the area where the hole
       existed, or
              d. Failing to warn her of the hole’s existence, or
              e. Failing to direct her away from the hole . . . .

The court acknowledged Sallee’s request for such an instruction, but declined to

give the instruction, explaining:

       [T]he additional theory of fault requested by the plaintiff on
       negligent performance of an undertaking, previously referred to by
       counsel as the tour guide theory, is essentially a duplication of
       plaintiff’s fault claim, relying on the same basic duties and the same
       breaches of those duties and the same specifications of
       negligence, and it would be confusing to the jury and not helpful or
       necessary for the submission of the plaintiff’s claim.

       The court’s marshalling instruction provided, in part:

               3. The defendants were at fault due to negligence in one or
       more of the following particulars:
               a. failing to properly inspect the hayloft prior to the field trip;
               b. failing to safely cover or shield the hay chute opening so
       that visitors would not fall through it;
               c. failing to warn Kimberly Ann Sallee of the existence and
       location of the hay chute opening.
               d. failing to direct Kimberly Ann Sallee away from the hay
       chute opening.
                                          17


Sallee’s tour-guide-liability instruction virtually mirrors the court’s marshalling

instruction.

        “If the concept behind the requested instruction is embodied in other

instructions, the district court may properly reject the proposed instruction.”

Crawford v. Yotty, 828 N.W.2d 295, 298 (Iowa 2013) (citation and internal

quotation marks omitted).         Because Sallee’s requested instruction was

“embodied in other instructions” submitted to the jury, the district court did not

abuse its discretion in declining to instruct the jury on tour guide liability. See id.;

see also Summy, 708 N.W.2d at 340. We affirm on this issue.

VII.    Motion for New Trial

        Sallee asks this court to grant her a new trial “on the basis of all [the]

grounds” raised in her appellate brief. Having decided all of those issues against

Sallee, we conclude the district court properly denied Sallee’s motion for new

trial. We affirm on this issue.

VIII.   Conclusion

        Upon our review of all the issues raised by Sallee on appeal, we affirm the

district court’s order denying her motions for directed verdict, for judgment

notwithstanding the verdict, and for new trial.

        AFFIRMED.
