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Fox v. Rechkemmer

Court of Appeals of Iowa

September 27, 2017

HARRY E. FOX, Executor of the Estate of CYNTHIA L. FOX, deceased, Plaintiff-Appellant,
v.
MARK P. RECHKEMMER and RECHKEMMER AG ENTERPRISES, INC., Defendants-Appellees.

         Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.

         The 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.

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

          Heard by Vogel, P.J., and Potterfield and Mullins, JJ.

          POTTERFIELD, JUDGE

         Harry 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.[1] 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.

         I. Background Facts and Proceedings.

         On the 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 the collision.

         The 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.

         The 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.

         The 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.

         Fox appeals.

         II. Standard of Review.

         We 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 1997)).

         III. Discussion.

         Fox maintains the district court abused its discretion in deciding a number of evidentiary issues. We consider each in turn.

         A. Opening Statement.

         During 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."

         Iowa 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 witnesses.

         Even if 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 ...


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