                     IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0931
                               Filed October 15, 2014


CHRISTINE WAGNER, Daughter of
JANICE R. BRISSEY, Deceased,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


         Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.



         Christine Wagner, individually and as the executor of Janice Brissey’s

estate, appeals from the district court’s denial of her motion for new trial and

judgment notwithstanding the verdict. AFFIRMED.



         Thomas J. Duff of Duff Law Firm, P.L.C., and Roxanne Conlin of Roxanne

Conlin & Associates, Des Moines, for appellant.

         Thomas J. Miller, Attorney General, Joanne Moeller and Anne Updegraff,

Assistant Attorneys General, and John P. Sarcone, County Attorney, for appellee

State.




         Heard by Danilson, C.J., and Vogel and Bower, JJ.
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VOGEL, J.

          Christine Wagner, individually and as the executor of Janice Brissey’s

estate, appeals from the district court’s denial of her motion for new trial and

judgment notwithstanding the verdict. She asserts the verdict is inconsistent with

the facts of the case because the driver of the vehicle that struck Brissey’s car

was—at least to some degree—negligent. Because we conclude that, given the

facts of the case, the jury could have found the driver was not negligent, we

affirm.

I. Factual and Procedural Background

          On June 15, 2008, a bus driven by Trevor Daniels, a member of the Iowa

National Guard, struck the vehicle of Janice Brissey from the rear. Brissey died

as a result of injuries sustained in the crash.      Christine Wagner, Brissey’s

daughter, was appointed executor of Brissey’s estate. At trial, the jury could

have found the following facts.

          In the early evening of June 15, Daniels was assigned to drive an empty

bus from Burlington to Iowa City to pick up members of the Iowa National Guard,

to assist in flood recovery efforts. Jeff Ward accompanied him and sat in the

front seat. Daniels was driving west on U.S. Highway 34, a divided four-lane

uncontrolled access highway, with the sun setting directly in front of him. Neither

Ward nor Daniels was wearing sunglasses, but the sun visor was down. Daniels

testified the sun “was bright, but it wasn’t blinding,” and he could see clearly.

Ward testified the “vehicles that were further out ahead of us I don’t recall being
                                            3


able to see very well.” The bus was being driven at or below sixty-five miles per

hour, the posted speed limit.1

       Brissey, who was sixty-eight years old, had turned right onto the highway,

and traveled west about 2000 feet. At this point Brissey’s car was approximately

1000 feet in front of the bus and 480 feet from the next intersection. The speed

at which she was driving was a matter of contention, but it was estimated to be

between zero and twenty miles per hour.2 Shortly before impact, Daniels stated

he took a sip of his energy drink, placed it between his legs, but did not think he

took his eyes off the road while doing so. He then checked his side mirror.

Meanwhile, Ward reached over to either zip or unzip a bag. The bus went up an

incline at fifty-five to sixty miles per hour. The bus was approximately 150 to 200

feet from Brissey’s car when both men saw it. Daniels braked and attempted to

steer to the right, given he was blocked from steering to the left by cars in the left

lane, but the bus hit Brissey’s vehicle from behind, resulting in her death. There

were no pre-impact skid marks on the road.

       Wagner, individually and as the executor of Brissey’s estate, filed a

wrongful death suit against the State of Iowa.3            A jury trial was held from

February 4 to February 13, 2013. On February 13, the jury returned a verdict in


1
  The bus could not have been going more than sixty-five miles per hour at any time due
to the governor—a device which limited the vehicle’s speed—that had been installed.
2
   Stan Oglesby, a former Missouri State Trooper with accident investigation and
reconstruction experience, testified that the sun was a factor in this accident, but that
based on his calculations, Brissey’s car was either stopped or driving, at most, twenty
miles per hour. He further stated drivers should not be expected to see a vehicle that,
for all practical purposes, was stopped on a four-lane highway.
3
   The amended petition substituted the State of Iowa for the originally-named
defendants, Daniels and the Iowa National Guard. While the State is the defendant, the
verdict forms use “Daniels” as the defendant. Therefore, in this opinion, all references to
the State will be to Daniels.
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favor of the defendant, finding Daniels was not at fault. Wagner then filed a

motion for judgment notwithstanding the verdict or, in the alternative, motion for

new trial, which the State resisted. A hearing was held on April 5, and on May

24, the district court denied the motion. Wagner appeals.

II. Standard of Review

       Our review of a district court’s ruling on a motion for judgment

notwithstanding the verdict is for correction of errors at law. Roling v. Daily, 596

N.W.2d 72, 74 (Iowa 1999). We examine the evidence in the light most favorable

to the nonmoving party. Magnusson Agency v. Public Entity Nat’l Co.-Midwest,

560 N.W.2d 20, 25 (Iowa 1997). We limit our review to the grounds raised in the

motion for directed verdict. Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 221

(Iowa 1998). We inquire whether substantial evidence supports submission of

the case to the jury.      Magnusson Agency, 560 N.W.2d at 25.         Evidence is

substantial if a reasonable mind could accept it as sufficient to reach the same

conclusion. Schlegel, 585 N.W.2d at 221.

       On a motion for new trial our review also depends upon the grounds

raised in the motion. Clinton Physical Therapy Servs., P.C. v. John Deere Health

Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). Because the motion at issue here

was based on a legal question, we review the district court’s ruling for an abuse

of discretion.   See id.   The determinative question for the district court was

whether the verdict effected substantial justice between the parties. Kautman v.

Mar-Mac Cmty. Sch. Dist., 255 N.W.2d 146, 147–48 (Iowa 1977).             We note

appellate courts are “reluctant to interfere with a jury verdict.”   Condon Auto

Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 594 (Iowa 1999).
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III. Whether the District Court Properly Denied Wagner’s Motion

         Wagner argues the verdict is inconsistent with, and contrary to, the jury

instructions and the undisputed facts of the case.          She asserts that striking

another vehicle from behind is evidence of negligence and the facts also show

Daniels did not keep a proper lookout and failed to maintain an assured clear

distance ahead. Therefore, the district court erred when it denied her motion for

judgment notwithstanding the verdict or, in the alternative, motion for new trial.

         A new trial may be granted, and the jury verdict set aside, when the

verdict is so logically and legally inconsistent it is irreconcilable in the context of

the case.     Blume v. Auer, 576 N.W.2d 122, 125 (Iowa Ct. App. 1997).                In

assessing whether the jury verdict is inconsistent, we are mindful that a jury’s

verdict is to be liberally construed to give effect to the intentions of the jury. Id. at

126. The test is whether the verdict can be reconciled in any reasonable manner

consistent with the evidence, its fair inferences, and in light of the instructions of

the court. Kalvik ex rel. Kalvik v. Seidl, 595 N.W.2d 136, 139 (Iowa Ct. App.

1999). Questions of negligence, contributory negligence, and proximate cause

are for the jury to determine. Crookham v. Riley, 584 N.W.2d 258, 265 (Iowa

1998).

         The jury was instructed that Wagner must prove Daniels was negligent in

one of the following ways:

                1. Driving the bus at a speed greater than what would
         permit him to stop within an assured clear distance ahead; or
                2. Failing to keep a proper lookout; or
                3. Failing to have the bus under control; or
                4. Driving at a speed greater than circumstances would indicate
         was reasonable and proper.
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      Jury instruction number twenty-one in this case stated: “Striking the rear of

Janice Brissey’s car is evidence of negligence on the part of Defendant.” Jury

instruction number eighteen defined “proper lookout,” stating:

              “Proper lookout” is the lookout a reasonable person would
      keep in the same or similar situation. It means more than looking
      and seeing. It includes being aware of the operation of the driver’s
      vehicle in relation to what the driver saw or should have seen. The
      duty to maintain a lookout includes the duty to stop if a driver has
      lost visibility entirely.
              A violation of this duty is negligence.

      Viewing the evidence in the light most favorable to the non-moving party,

the district court did not err in denying Wagner’s motion.       See Bredberg v.

Pensico, Inc., 551 N.W.2d 321, 326 (Iowa 1996) (holding that we take “into

consideration every legitimate inference that may fairly and reasonably be made”

from the evidence). As our supreme court has noted, while striking a car from

behind might not have occurred had the defendant used reasonable care, “the

happening of the injury permits but does not compel an inference that defendant

was negligent.” Schneider v. Swaney Motor Car Co., 136 N.W.2d 338, 343 (Iowa

1965). The jury instruction itself stated the fact Brissey’s vehicle was struck from

behind was evidence of negligence, not negligence per se.           The jury could

have—but was not required—to find Daniels negligent. Therefore, the totality of

the evidence demonstrates the jury did not act contrary to the jury instructions

when choosing to decide Daniels was not negligent. See Matuska v. Bryant, 150

N.W.2d 716, 736 (Iowa 1967) (holding the fact the plaintiff driver had 400 feet of

unobstructed view and did not see the other car until the instant of the crash did

not prove she was negligent as a matter of law).
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       Wagner claims that because some facts were undisputed, the jury could

not have found Daniels to be free from any negligence. In particular, Wagner

notes Daniels “may have” taken his eyes off the road long enough to take a sip of

his drink. She also believes Daniels should have been wearing sun glasses, to

aid his vision. She claims these failures support her position that Daniels failed

to keep a proper lookout, which would lead the jury to conclude he failed to keep

his vehicle under control to avoid the collision. Therefore, the jury should have

found Daniels was at least partly to blame for the accident. However, the jury

was free to sort through the disputed and undisputed facts and to accept or reject

any testimony, given that credibility is a fact question. See Eickelberg v. Deere

& Co., 276 N.W.2d 442, 447 (Iowa 1979).

       In finding Daniels not at fault, the jury clearly focused on the evidence that

put Brissey totally at fault.   Daniels was driving at or below the speed limit,

whereas Brissey was driving extremely slowly or was stopped, which created a

hazard for other vehicles, particularly on a high-speed, four-lane highway.

Specifically, there was expert testimony that stated drivers should not be

expected to see a vehicle that, for all practical purposes, is stopped in the road.

Both Ward and Daniels testified the glare of the sun as the bus topped a rise

could have obstructed Daniels’s view. However, Ward testified that, although

Daniels had taken a sip of his energy drink, “he would turn his head to the side

so he could keep one eye on the road while driving.” The jury’s determination

that Daniels was not at fault “is consistent with the intent and purpose of the

comparative fault statute, which allows the fact finder to assign fault (without

explanation) to one or more parties claimed to have contributed to plaintiff’s
                                        8

injuries.” Bredberg, 551 N.W.2d at 329. Consequently, the district court did not

err in refusing to upset the jury’s verdict by denying Wagner’s motion for

judgment notwithstanding the verdict or, in the alternative, motion for new trial.

Consequently, we affirm the district court’s denial of Wagner’s motion.

      AFFIRMED.

      Bower, J., concurs; Danilson, C.J., concurs specially.
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DANILSON, C.J. (concurring specially)

       I concur specially because I disagree with the reasoning of the majority,

but I agree with the result.

       I am troubled by the jury’s verdict finding the State of Iowa not at fault.

Nevertheless, I conclude Wagner has failed to preserve error on the issue of

whether the jury’s verdict was inconsistent with the evidence.

       A verdict is inconsistent if it cannot “be harmonized in a reasonable

manner consistent with the jury instructions and the evidence of the case,

including fair inferences drawn from the evidence.” Clinton Physical Therapy

Servs., 714 N.W.2d at 613. Our court has previously concluded that, unless the

parties consented to a sealed verdict, a party must preserve error to challenge an

inconsistent verdict before the jury has been discharged. McGinnis v. Vischering

L.L.C., No. 10-1426, 2011 WL 5867051, at * 4 (Iowa Ct. App. Nov. 23, 2011). In

McGinnis we reasoned:

       In addition to preserving judicial resources, requiring a party to
       challenge an inconsistent verdict before the jury is discharged also
       prevents a dissatisfied party from withholding timely notice of
       problems, which could have been cured by the original jury, as a
       pretext for seeking a second bite of the apple before a new jury that
       might be more receptive to its claims. Because the plaintiffs failed
       to raise an objection to the verdicts at the earliest possible time,
       robbing the court of the most efficient and convenient corrective
       action, we find they have failed to preserve error on their claim that
       the verdict was inconsistent.

Id. at *3 (internal quotations and citations omitted).    I agree with this sound

reasoning.

       Here, Wagner failed to raise her objection before the jury was discharged.

Accordingly, I conclude Wagner failed to preserve error on the issue of whether
                                        10


the verdict was inconsistent with the evidence. For these reasons, I conclude the

district court did not abuse its discretion in denying the motion for new trial. See

WSH Props., L.L.C. v. Daniels, 761 N.W.2d 45. 49 (Iowa 2008) (“Our standard of

review for rulings on a motion for new trial depends on the grounds for new trial

asserted in the motion and ruled upon by the court. Where the motion and ruling

are based on a discretionary ground, our review is for an abuse of discretion.”).
