                IN THE SUPREME COURT OF IOWA
                            No. 114 / 05-0161

                           Filed March 16, 2007

ROBIN OLSON,

      Appellee,

vs.

SCOTT SUMPTER,

      Appellant.


      Appeal from the Iowa District Court for Fremont County, Charles L.

Smith, Judge.



      The district court granted the plaintiff’s motion for new trial on the

ground that jury instructions on plaintiff’s unreasonable failure to mitigate

damages were erroneous. REVERSED AND REMANDED.



      Joseph D. Thornton of Smith Peterson Law Firm, Council Bluffs, for

appellant.


      Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellee.
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HECHT, Justice.

       The district court concluded the jury was improperly instructed on

the subject of Olson’s alleged unreasonable failure to mitigate her damages

in this personal injury case and granted Olson’s motion for a new trial.

Because Olson failed, before closing arguments, to object to the mitigation

instruction, a new trial should not have been granted on that ground. We

therefore reverse the grant of a new trial.

       I.      Background Facts and Proceedings.

       Robin Olson and Scott Sumpter were neighbors in Hamburg, Iowa.

Olson backed her car out of her driveway onto the adjacent street. Within

seconds after she changed gears and began moving forward on the street,

Sumpter backed his car out of his driveway. The rear of Sumpter’s car

collided with the passenger-side rear of Olson’s car. Olson sued Sumpter

alleging Sumpter’s negligence caused personal injuries and property

damage. Sumpter denied liability and, as an affirmative defense, alleged

Olson’s fault 1 was a proximate cause of her claimed damages. See Iowa

Code § 668.1 (2003) (defining “fault”).

       The case was tried to a jury. The district court provided the parties

with proposed jury Instructions 14, 15, 16, and 17, addressing the subject

of comparative fault. Instructions 14, 15, and 16 addressed Olson’s alleged

fault in failing to keep a proper lookout at the time of the accident. 2

       1Sumpter  expressly alleged Olson was at fault in failing to (1) wear a seat safety belt
or harness and (2) keep a proper lookout. The question of what percentage of fault, if any,
should be allocated to Olson as a consequence of her failure to wear a seatbelt was not
submitted to the jury because the parties resolved that issue by pretrial stipulation.

       2Instruction   14 provided:

       Damages may be 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 and defendant and the
       extent of the causal relation between their conduct and the damages
                                               3

Instruction 17 dealt with Sumpter’s allegation that Olson failed to mitigate

her damages. 3 When asked whether the plaintiff had objections to the
_____________________________
      claimed. You should then determine what percentage, if any, each person’s
      fault contributed to the damages.

Instruction 15 provided:

       After you have compared the conduct of all parties, if you find the plaintiff,
       Robin Olson, was at fault and the plaintiff’s fault was more than 50% of the
       total fault, the plaintiff, Robin Olson, cannot recover damages. However, if
       you find the plaintiff’s fault was 50% or less of the total fault, then I will
       reduce the total damages by the percentage of plaintiff’s fault.

Instruction 16 provided:

       The defendant claims the plaintiff was at fault in the following particular(s):
       Failure to keep a proper lookout.

       These grounds of fault have been explained to you in other instructions.

       The defendant must prove both of the following propositions:

       1.     The plaintiff was at fault. In order to prove fault, the defendant must
       prove plaintiff failed to keep a proper lookout.
       2.     The plaintiff’s fault was a proximate cause of the plaintiff’s damage.

       If the defendant has failed to prove either of these propositions, the
       defendant has not proved his defense. If the defendant has 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 answering the special verdicts.

       3Instruction   17 provided:

       Defendant claims plaintiff was at fault for failing to mitigate her damages by
       not exercising ordinary care to obtain reasonable medical treatment.

       Plaintiff has a duty to exercise ordinary care to reduce, minimize or limit her
       damages. However, plaintiff has no duty to do something that is
       unreasonable under the circumstances, such as undergo serious or
       speculative medical treatment or undertake action which imposes
       unreasonable inconvenience.

       To prove defendant’s claim of failure to mitigate, he must prove all of the
       following:

         1.    There was something plaintiff could to [sic] do mitigate her damages;
         2.    Requiring plaintiff to do so was reasonable under the circumstances;
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proposed instructions, Olson’s counsel made no express reference to

Instruction 17 or the subject of mitigation and did not object to the verdict

form. Olson’s counsel said, “Your Honor, for the record, I would object to

Instruction Number 14 and 15, 16 [sic] in that I don’t think there is

sufficient evidence to go to the jury on the fault of the plaintiff, Robin

Olson.” The district court overruled the objection, instructed the jury on

the law, and submitted the case to the jury.

       Question three on the verdict form directed the jury to decide whether

the plaintiff was at fault. During its deliberations, the jury asked the court

for clarification of that question: “In the verdict form on question 3 does the

subject of ‘fault’ refer to the actual accident? [O]r the personal injuries?”

The record contains no stenographic record of a colloquy between the court

and counsel with reference to the jury’s inquiry.                    The district court

responded, “Question #3 refers to the issue of all fault alleged by the

defendant. Please re-read the instructions.”

       The jury returned a verdict allocating sixty percent of the fault to

Olson and the remaining forty percent to Sumpter, barring Olson from

recovery.    See id. § 668.3 (barring recovery where “a claimant bears a

greater percentage of fault than the combined percentage of fault attributed

to the defendants”). Olson filed a motion for new trial asserting the district
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        3.  Plaintiff acted unreasonably in failing to undertake the mitigating
            activity; and
        4.  Plaintiff’s failure to undertake the mitigating activity proximately
            caused an identifiable portion of her damages.

       If the defendant has proved all of these numbered propositions, then
       defendant has proved this defense, and you shall assign a percentage of
       fault to the plaintiff for the time period after the failure to mitigate. This
       amount will be used in answering the special interrogatory in the verdict. If
       the defendant has failed to prove one or more of these numbered
       propositions, then defendant has not proved plaintiff failed to mitigate her
       damages.
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court erred in failing to employ separate verdict forms that would have

required the jury to allocate plaintiff’s fault, if any, between periods before

and after the alleged failure to mitigate commenced 4 and in giving an
erroneous additional instruction in response to a question from the jury. 5

Olson’s posttrial motion further asserted the jury’s verdict allocating sixty

percent of the fault to Olson was not supported by substantial evidence. 6

The district court sustained Olson’s motion for new trial, concluding it had

failed to “properly instruct the jury on the issue of defendant’s claim that

the plaintiff failed to mitigate her damages by failure to follow medical

orders.”

        On appeal, Sumpter contends the district court’s grant of a new trial

should be reversed and the jury’s verdict reinstated because Olson “failed to

preserve error.” In support of this contention, Sumpter notes that Olson

failed to make a specific and timely objection to (1) jury Instruction 17, (2)

the form of the jury verdict, and (3) the sufficiency of the evidence to

support the submission of mitigation as a component of Olson’s

comparative fault. Sumpter further asserts the jury’s verdict allocating

sixty percent of the total fault to Olson is supported by substantial


        4
          In Greenwood v. Mitchell, 621 N.W.2d 200, 208 (Iowa 2001), we suggested that the
allocation of plaintiff’s fault for failure to mitigate damages would best be handled in the
event of a retrial through the “use of separate verdict forms for the period prior to the
plaintiff’s alleged failure to mitigate and for the period that includes the plaintiff’s alleged
failure to mitigate.”

        5
         Although not a model of clarity on this point, we interpret Olson’s posttrial motion
as an assertion that the additional instruction failed to clearly inform the jury that fault
could be attributed to Olson for unreasonable failure to mitigate only for the period after
the failure to mitigate commenced.

        6Olson’sposttrial motion contended the evidence was insufficient to allocate fault to
Olson “in regard to the actual accident” and noted Sumpter’s failure to produce expert
testimony tending to prove any unreasonable failure to mitigate damages was a proximate
cause of an identifiable portion of Olson’s claimed damages.
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evidence.   In response, Olson claims her challenges to the mitigation

instruction, the jury verdict form, and the sufficiency of the evidence to

support the submission of mitigation as a component of comparative fault

were timely because (1) the court’s response to the jury’s question was an

addition to the instructions, which may be challenged for the first time in a

motion for new trial, and (2) as plaintiff, Olson had no obligation to object to

the absence of separate verdict forms because the comparative fault defense

was asserted by Sumpter. Olson further asserts the district court properly

granted a new trial in this case because the evidence was insufficient to

engender a jury question on Olson’s alleged comparative fault.

      II.    Discussion.

             A.     Scope of Review.

      “ ‘The scope of our review of a district court’s ruling on a motion for

new trial depends on the grounds raised in the motion.’ ” Richards v.

Anderson Erickson Dairy Co., 699 N.W.2d 676, 678 (Iowa 2005) (quoting

Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001)). If

the motion for a new trial was “ ‘based on a discretionary ground, we review
it for an abuse of discretion.’ ” Id. (quoting Roling v. Daily, 596 N.W.2d 72,

76 (Iowa 1999)). If the ruling granting a new trial was prompted by a

motion based on a legal question, as in this case, our review is for errors at

law. Id. at 680.

             B.     Waiver of Objections to Instruction 17 and the Jury Verdict
                    Form.

      We begin with Sumpter’s contention that Olson did not preserve error

on her claims for the district court’s posttrial consideration. Generally,

under Iowa Rule of Civil Procedure 1.924, error in jury instructions is

waived if not raised before closing arguments are made to the jury. See
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Iowa R. Civ. P. 1.924 (stating that objections to jury instructions must be

made and ruled on before arguments to the jury and that “[n]o other . . .

objections shall be asserted thereafter, or considered on appeal”); Julian v.

City of Cedar Rapids, 271 N.W.2d 707, 708-09 (Iowa 1978) (reversing the

district court’s grant of a new trial on grounds not raised before submission

of instructions to the jury); Peterson v. First Nat’l Bank of Iowa, 392 N.W.2d

158, 161 (Iowa Ct. App. 1986) (same).

      Olson failed to expressly object to Instruction 17 or the jury verdict

form before closing arguments. Although her counsel did make a timely

objection to Instructions 14, 15, and 16, noting that he did not “think there

is sufficient evidence to go to the jury on the fault of the plaintiff,” we

conclude that objection did not suffice to avoid waiver of Olson’s posttrial

challenge to Instruction 17 and the verdict form. Even a timely objection to

jury instructions will not avoid waiver of error if the objection is not

sufficiently specific. The objecting party must “specify[] the matter objected

to and on what grounds.” Iowa R. Civ. P. 1.924. The objection must be

“ ‘sufficiently specific to alert the trial court to the basis of the complaint so

that if error does exist the court may correct it before placing the case in the

hands of the jury.’ ” Boham v. City of Sioux City, 567 N.W.2d 431, 438 (Iowa
1997) (quoting Moser v. Stallings, 387 N.W.2d 599, 604 (Iowa 1986)). And if

the objection assails the “sufficiency of the evidence supporting an

instruction,” it “must specify that portion of the instruction lacking

evidentiary support and the particular factual deficiency.” Id. (holding that

a general objection that the evidence was insufficient to submit various

instructions to the jury was not adequate to alert the district court to the

contention on appeal that the evidence was insufficient to submit pre-death

damages to the jury).      When measured against these well-established
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principles, Olson’s objection to Instructions 14, 15, and 16 was clearly

inadequate to alert the district court to the substance of her alternative
posttrial claims that (1) the mitigation defense should not have been

submitted to the jury as a component of comparative fault, and (2) the

district court erred in failing to employ separate jury verdict forms as

suggested by our decision in Greenwood v. Mitchell, 621 N.W.2d 200, 208

(Iowa 2001).

      Olson contends her failure to make a specific objection to Instruction

17 and the jury verdict form before closing arguments is excused by Iowa

Rule of Civil Procedure 1.924. That rule allows a party to first raise in a

motion for new trial an objection to a revised or added jury instruction given

by the district court after closing arguments. As we have already noted,

Olson’s motion for new trial asserted that the district court’s response to the

jury’s question was erroneous because it failed to inform the jury that a

percentage of fault for failure to mitigate damages could be assigned to

Olson only for the time period after any failure to mitigate commenced. We

assume without deciding that the court’s answer to the jury’s question was

an “added” instruction and that Olson could raise a timely objection to it in

her motion for new trial under rule 1.924. But under the circumstances

presented in this case, Olson’s timely posttrial objection to the court’s

added instruction was without merit.

      The   added    instruction   was    completely   consistent   with   the

instructions given by the court to the jury without objection before the jury

began its deliberations. Instruction 17 informed the jury that “fault” would

include any failure by Olson to mitigate her damages. The court’s added

instruction merely reconfirmed this for the jury. Instruction 17 had also

already informed the jury that a percentage of fault could be allocated to
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Olson for any failure to mitigate damages during “the time period after the

failure to mitigate.” It was therefore unnecessary to restate that temporal

limitation in the additional instruction that was given in response to the

jury’s question. We find no error in the additional instruction and must

reject Olson’s effort to utilize a posttrial motion to resurrect error that was

waived by her failure to object before closing arguments to the sufficiency of

the evidence to support the mitigation instruction and the adequacy of the

jury verdict form.

      Olson also contends on appeal that her failure to object before closing

arguments to Instruction 17 and the verdict form did not waive error

because the comparative fault defense was asserted by Sumpter. Olson

cites no authority for this novel proposition, and we therefore do not

consider it. See Iowa R. App. P. 6.14(1)(c).

      Because Olson failed in advance of closing arguments to object to jury

Instruction 17, the jury verdict form, and the sufficiency of the evidence of

her unreasonable failure to mitigate damages, the district court erred in

granting a new trial as a consequence of the failure to properly instruct the

jury on Sumpter’s mitigation defense.

             C.      Sufficiency of the Evidence of Comparative Fault.

      Olson urges us to affirm the grant of a new trial because the jury’s

verdict attributing to her sixty percent of the total fault is not supported by

substantial evidence. Although the district court’s posttrial ruling was not

based on insufficiency of the evidence supporting the jury’s allocation of

fault to the parties, we may uphold the ruling on any ground raised in the

district court. DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). As we have

noted above, Olson did articulate a timely challenge to the sufficiency of the

evidence supporting Instruction 16, which addressed Sumpter’s claim that
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Olson was at fault for failing to keep a proper lookout. We therefore now

consider whether the grant of a new trial was appropriate for a reason

raised by Olson, but not relied on by the district court.

      If a jury verdict is not supported by sufficient evidence and fails to

effectuate substantial justice, a new trial may be ordered. Bredberg v.

Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). In this case, the jury’s

verdict allocating sixty percent of the fault to Olson is supported by

sufficient evidence. Olson testified that she noticed Sumpter’s car in his

driveway before backing her car onto the street. She further testified that

she did not see Sumpter’s car moving backward on his driveway before the

collision.   After a careful review of the record, we conclude the jury’s

allocation to Olson of sixty percent of the causative fault is supported by

sufficient evidence in the record.    Accordingly, we must reject Olson’s

contention that the grant of a new trial should be affirmed for the reason

that the evidence of her fault is insufficient to support the jury’s verdict.

      III.    Conclusion.

      Olson failed in advance of closing arguments to object to jury

Instruction 17, the jury verdict form, and the sufficiency of the evidence of

her unreasonable failure to mitigate her damages. Accordingly, Olson

waived any error as to the mitigation defense and the verdict form and is

not entitled to a new trial for the reason articulated by the district court.

The district court’s additional instruction given in response to the jury’s

question was consistent with the substance of the instructions given before

deliberations commenced. It was not erroneous and did not resurrect any

instructional error that was waived by Olson’s failure to object to

Instruction 17 and the verdict form. Because we find substantial evidence

supports the jury’s allocation of sixty percent of the causative fault to
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Olson, the grant of a new trial cannot be sustained on the alternative

ground of insufficiency of the evidence of Olson’s fault.   We therefore

reverse and remand for entry of judgment based on the jury’s verdict.

     REVERSED AND REMANDED.

     All justices concur except Appel, J., who takes no part.
