                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1885
                             Filed August 16, 2017


ANISSA GERARD,
     Plaintiff-Appellant,

vs.

CITY OF NORTH LIBERTY, IOWA and MITCHELL SEYMOUR, individually
and as Police Officer for City of North Liberty,
      Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Lars G.

Anderson, Judge.



      Anissa Gerard appeals following a jury verdict in favor of the City of North

Liberty and North Liberty Police Officer Mitchell Seymour on a negligence claim.

AFFIRMED.




      David A. O’Brien of David O’Brien Law, Cedar Rapids, for appellant.

      Bradley J. Kaspar and Terry J. Abernathy of Pickens, Barnes & Abernathy

Law Firm, Cedar Rapids, for appellees.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

        North Liberty police arrested Anissa Gerard after she acted belligerently.

When officers were moving her within the police station, she missed a step and

fell.   Gerard sued the City of North Liberty and Officer Mitchell Seymour for

negligence in failing to warn her of the step and in failing to protect her from

falling down the step. A jury found they were not at fault.

        On appeal, Gerard (1) challenges the district court’s failure to give the jury

her proposed instruction on a special duty of care owed by the defendants and

(2) contends the jury verdict was not supported by substantial evidence.

I.      Jury Instruction

        Gerard asked the court to give the jury the following definition of

negligence:

        “Negligence” means failure to use ordinary care. Ordinary care is
        the care which a reasonably careful person would use under similar
        circumstances. “Negligence” is doing something a reasonably
        careful person would not do under similar circumstances, or failing
        to do something a reasonably careful person would do under
        similar circumstances.
               In this case the defendants’ duty to the plaintiff went beyond
        “ordinary care.” As the result of taking the plaintiff into custody and
        handcuffing her hands and arms behind her back plaintiff lost her
        normal ability of self-protection. Therefore, the defendants owed a
        special duty to aid and protect plaintiff from injury.

(Emphasis added.) The district court elected to give the un-italicized portion,

which is identical to the Iowa State Bar Association’s Jury Instruction 700.2. See

Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 615-16 (Iowa

2017); Iowa Civ. Jury Inst. 700.2.

        The district court also gave the jury the following instruction:
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                 Law enforcement officers have a duty of ordinary care to aid
          and protect those individuals who are under their custody and
          control and whose freedom has been imposed upon such that they
          have lost their normal opportunity for self-protection. In this case,
          Defendant Seymour had such a duty to Plaintiff at the time of the
          accident at issue and therefore was obligated to act as a
          reasonably careful law enforcement officer would under similar
          circumstances in aiding and protecting Plaintiff.

(Emphasis added.) On appeal, Gerard argues the defendants’ duty to her “went

beyond ‘ordinary care’” to a “special duty of care” as a “result of taking her into

custody and handcuffing her hands and arms behind her back.” As the district

court stated, Gerard conflates two concepts: “special relationships” and “duty of

care.”

          The general rule, as set forth in Restatement (Second) of Torts section

314 is as follows: “The fact that the actor realizes or should realize that action on

his part is necessary for another’s aid or protection does not of itself impose upon

him a duty to take such action.” Restatement (Second) of Torts § 314 (Am. Law

Inst. 1965).     Comment a to this section states, “Special relations may exist

between the actor and the other, as stated in § 314A, which impose upon the

actor the duty to take affirmative precautions for the aid or protection of the

other.”     Id. § 314 cmt. a.    Section 314A, in turn, sets forth several “special

relations,” including the following: “(4) One who is required by law to take or who

voluntarily takes the custody of another under circumstances such as to deprive

the other of his normal opportunities for protection is under a similar duty to the

other.” Id. § 314A. Significantly, one of the comments to section 314A states:

“The duty in each case is only one to exercise reasonable care under the

circumstances.” Id. § 314A cmt. e.
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       The Iowa Supreme Court agreed with this articulation of the duty of care in

Hildenbrand v. Cox, 369 N.W.2d 411, 415 (Iowa 1985). There, the court

reaffirmed “the general rule that a person owes no duty to act for the protection of

others unless the actor has a special relationship to the other person.”

Hildebrand, 369 N.W.2d at 415. The court looked to the Restatement to “identify

the special relationships and circumstances under which liability can be imposed

on the actor” and cited the relationship quoted above. Id. (citing Restatement

(Second) of Torts § 314A(4)). The court did not impose a heightened duty of

care, characterizing the duty as one of reasonable care. See id. (citing Smith v.

Miller, 40 N.W.2d 597, 600 (Iowa 1950) (“When a sheriff, by virtue of his office,

has arrested and imprisoned a human being, he is bound to exercise ordinary

and reasonable care, under the circumstances of each particular case, for the

preservation of his life and health.” (citation omitted))).

       Gerard cites Daniels v. Williams, 474 U.S. 327 (1986), in support of a

heightened duty of care. There, an inmate filed a civil rights action under 42

U.S.C. § 1983 “to recover for back and ankle injuries allegedly sustained when

he fell on a prison stairway.” Daniels, 474 U.S. at 328. The court held the

conduct did not amount to a constitutional deprivation, although it might have

stated a claim for common law negligence.             Id. at 332.   In explaining the

difference, the Court stated “lack of due care suggests no more than a failure to

measure up to the conduct of a reasonable person.” Id. The Court did not adopt

a special duty of care.

       Tinius v. Carroll County Sheriff Department, 321 F. Supp. 2d 1064, 1084-

85 (N.D. Iowa 2004), cited by Gerard, also is unavailing.           There, the United
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States District Court stated, “Iowa courts have determined that law enforcement

officers have a duty of care to protect detainees from personal harm.” Tinius, 321

F. Supp. 2d at 1084-85 (citing Hildenbrand, 369 N.W.2d at 415, and Smith, 40

N.W.2d at 598-600). The court continued, “Thus, when an individual is detained

or placed in some sort of custody, he is owed a common law duty of care.” Id. at

1085 (emphasis added).

       We conclude the defendants owed Gerard an ordinary, common law duty

of care.   The district court did not err in declining to instruct the jury on a

heightened duty of care. See Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707

(Iowa 2016) (setting forth standard of review).

II.    Substantial Evidence

       Gerard contends the jury verdict is not supported by substantial evidence.

Gerard raised this issue in a new trial motion, which the district court denied.

Because a challenge to the sufficiency of the evidence presents a legal question,

our review of the court’s ruling is for correction of errors at law. Fry v. Blauvelt,

818 N.W.2d 123, 128 (Iowa 2012).

       The jury was instructed Gerard would have to prove the following

propositions:

               1. That Defendant Seymour was negligent in one or more of
       the following ways:
                      a. In failing to warn Plaintiff of an upcoming step;
                      and/or
                      b. In failing to protect Plaintiff from falling down the
                      step
               2. The negligence was a cause of damage to the Plaintiff
               3. The amount of damage.
               If the Plaintiff has failed to prove any of the numbered
       propositions, the Plaintiff is not entitled to damages. If Plaintiff has
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        proved all of these propositions, you will consider the defenses of
        comparative fault, as explained to you in Instruction Nos. 15-17.

        Gerard asserts “the jury was instructed that the failure to warn was

negligence” rather than simply “‘evidence’ of negligence.” See, e.g., Winger v.

CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016) (discussing negligence

“as a matter of law,” e.g. negligence per se, as compared to evidence of

negligence). In her view, the evidence was undisputed that Seymour failed to

warn her of the step and, accordingly, “[n]o reasonable and unbiased jury could

have . . . found” he was not at fault. Again, Gerard conflates several concepts:

“negligence,” “negligence per se,” “specifications of negligence,” and the duty of

care.

        “Negligence is a common-law tort that is generally defined as conduct that

‘falls below the standard established by law for the protection of others against

unreasonable risk of harm.’” Seeman v. Liberty Mut. Ins. Co., 322 N.W.2d 35, 37

(Iowa 1982) (quoting Restatement (Second) of Torts § 282). “An element of

negligence is a duty or standard of care owed by the actor to the victim.” Id.

(citation omitted). “The duty or standard of care, statutory or otherwise, is merely

an element of proof that comes into play after an action has been rightfully

commenced pursuant to the preexisting common-law cause of action.” Id. In

other words, the concept of negligence includes the allegedly problematic

conduct set forth in the specifications of negligence, as well as evidence that the

conduct is inconsistent with the duty of care. See Schroeder v. Albaghadadi, 744

N.W.2d 651, 655 (Iowa 2008) (“For each act of negligence the court submits to

the jury, it must tell the jury the legal duty owed by the defendant.”); Anderson v.
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Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000) (noting the

district court gave instructions “that told the jury to specifically consider the

standard of reasonable care in light of the particular specifications of

negligence”). The negligence per se doctrine affords a “presumption that the

defendant has violated the legal duty to exercise due care” where “a statute or

regulation . . . provides a rule of conduct specifically designed for the safety and

protection of a certain class of persons, and a person within that class receives

injuries as a proximate result of a violation of the statute or regulation.”

Wiersgalla v. Garrett, 486 N.W.2d 290, 292 (Iowa 1992).

       As the defendants point out, the negligence per se doctrine is inapplicable.

This is a straightforward negligence case requiring proof of the specifications of

negligence and violation of a duty of care.          Although the failure-to-warn

specification was undisputed, whether this conduct violated the “duty of ordinary

care” set forth in a separate instruction was disputed and was for the jury to

decide.

       The jury reasonably could have found Seymour’s conduct in failing to warn

of the step did not violate this duty of care.      The jury could have credited

Seymour’s testimony that he stayed close to Gerard and helped her walk down

the hallway and she did not make it easy, with her “very sudden and abrupt” turn

and her attempt to spit on him. As he stated, “I believe that everyone’s safety is

important, but just because I’m a police officer doesn’t make me a biowaste

receptacle or punching bag. I wanted to protect Ms. Gerard to the best of my

abilities, but I can’t control her behavior.”
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      We conclude the district court did not err in declining to give Gerard’s

proposed instruction on negligence and in determining the jury’s verdict was

supported by substantial evidence.

      AFFIRMED.
