HARRY E. FOX, Executor of the Estate of CYNTHIA L. FOX, deceased, Plaintiff-Appellant,
MARK P. RECHKEMMER and RECHKEMMER AG ENTERPRISES, INC., Defendants-Appellees.
from the Iowa District Court for Fayette County, Richard D.
plaintiff in a wrongful death suit appeals from the
jury's verdict in favor of the defendant.
Benjamin G. Arato and Robert G. Tully of Law Offices of Rob
Tully, P.C., West Des Moines, for appellant.
L. Riley of McCoy, Riley & Shea, P.L.C., Waterloo, for
by Vogel, P.J., and Potterfield and Mullins, JJ.
Fox, the executor of the estate of Cynthia Fox, appeals from
the jury's verdict in a wrongful death suit in favor of
the defendant, Mark Rechkemmer. Fox raises a number of
evidentiary issues in which he claims the district court
abused its discretion; he maintains these rulings
substantially affected the rights of the estate and asks that
we remand for a new trial.
Background Facts and Proceedings.
morning of Friday, October 12, 2012, Cynthia Fox and Mark
Rechkemmer each left their respective homes. Each drove on
gravel roads, with Cynthia driving a TrailBlazer and
Rechkemmer driving a TerrraGator, a piece of agricultural
machinery with large tires and weighing approximately 20, 000
pounds. They reached an uncontrolled intersection at
approximately the same time, and the vehicles collided.
Rechkemmer was thrown from his vehicle and survived, though
he suffered a number of injuries and was hospitalized for
almost two weeks. Cynthia died at the scene as a result of
executor of Cynthia's estate (her husband) filed a
wrongful death lawsuit. The matter proceeded to a jury trial
in April 2016. At trial, an expert testified for each side,
opining their party had entered the intersection first and
was struck by the vehicle of the other driver. Additionally,
Rechkemmer testified as to his memories of the morning in
question, including stating that he had slowed down and
looked both ways-not seeing a vehicle-before he started to
speed back up to approximately thirty or thirty-five miles
per hour as he entered the intersection.
jury was instructed to determine the comparative fault of
both Cynthia and Rechkemmer, considering whether each was
negligent in one or more ways, including the failure to
maintain a proper lookout, failure to yield his or her
vehicle in an uncontrolled intersection, and failure to
maintain proper control of their own vehicle.
jury returned a verdict finding both Cynthia and Rechkemmer
at fault. The jury apportioned 60% of the fault to Cynthia
and 40% to Rechkemmer. The court then dismissed the
estate's wrongful death claim.
Standard of Review.
generally review a district court's evidentiary rulings
for an abuse of discretion. See Horak v. Argosy Gaming
Co., 648 N.W.2d 137, 149 (Iowa 2002) ("[T]rial
courts are granted broad discretion concerning the
admissibility of evidence."). "Reversal [is]
warranted only if the trial court 'clearly abused its
discretion to the prejudice of the complaining
party.'" Id. (quoting Johnson v.
Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 640 (Iowa
maintains the district court abused its discretion in
deciding a number of evidentiary issues. We consider each in
the defense's opening statement, defense counsel asked
the rhetorical question, "So if [Cynthia] sees this
TerraGator coming and realized that there's about to be a
collision, and she's only going 20 miles an hour and has
steering control, why wouldn't she have steered away to
one ditch or the other?" Fox maintains this statement
was an impermissible form of arguing the defendant's case
during opening arguments. More specifically, he claims
Rechkemmer "planted an unanswerable question in the
minds of the jury that could only cause the jury to speculate
through the entire trial why Cynthia Fox chose one form of
danger-the intersection, over another-the ditch."
Rule of Civil Procedure 1.919(2) allows defense counsel to
briefly "state that party's defense and
evidence." "Under this rule, counsel should only
tell the jury about evidence that counsel has a good faith
believe will be offered and admissible." Kester v.
Bruns, 326 N.W.2d 279, 281 (Iowa 1982). Here, we note
that one of Fox's experts testified both that
Cynthia's vehicle was traveling twenty miles per hour or
less at the time of the collision and that her vehicle was
equipped with an antilock brake system, meaning she still had
the ability to steer the vehicle up until the point of
impact. The expert assumed this was a reduction in speed and
used that assumption to say he believed Cynthia saw the
TerraGator before the collision in the intersection.
Rechkemmer's expert testified otherwise, opining
Cynthia's vehicle was traveling forty to forty-five miles
per hour at the time of impact and noting there was nothing
which indicated she had reduced her speed or taken an evasive
action-presumably because she did not see the TerraGator
until impact. In the larger context, defense counsel's
statement compared the opinion of the defense's expert
witness with that of one of the plaintiff's expert
we found the trial court had abused its discretion in
overruling Fox's objection to the statement-Fox's
fourth during the defense's opening statement-we cannot
find the statement was prejudicial as to warrant a new trial.
Before either parties' opening statement, the court
advised the jury that "[t]he statements [the attorneys]
make are not evidence and may not be considered by you as
evidence. Also any statement they ...