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Morrison v. Grundy County Rural Electric Cooperative

Court of Appeals of Iowa

January 23, 2019


          Appeal from the Iowa District Court for Tama County, Mitchell E. Turner, Judge.

         Plaintiffs in negligence action appeal a jury verdict finding the rural electric cooperative at fault after a plane crash but finding no causation. AFFIRMED.

          John R. Walker Jr. of Beecher, Field, Walker, Morris, Hoffman & Johnson, PC, Waterloo, for appellants.

          Joseph G. Gamble and Gregory R. Brown of Duncan, Green, Brown & Langeness, PC, Des Moines, for appellee.

          Heard by Tabor, P.J., and Mullins and Bower, JJ.


         The plaintiffs[1] allege the Grundy County Rural Electric Cooperative (GCREC) was liable for the death of Max Morrison, a passenger in an airplane that crashed after striking a power line. A jury found the GCREC acted negligently but its negligence did not cause the crash. The Morrisons raise numerous grounds for reversal. We resolve most of their claims on error preservation or harmless error. We reach the merits of one issue-finding the district court properly instructed the jury on the GCREC's scope of liability. Accordingly, we affirm.

         I. Facts and Prior Proceedings.

         In November 2012, a plane piloted by William Konicek and carrying passenger Max Morrison crashed into a farm field outside Clutier in Tama County. The accident occurred when the front wheels of the plane-a "light sport aircraft"- tangled with electrical wires suspended on poles above the land. Konicek died at the scene. Morrison was able to walk out of the wreckage but suffered severe burns. He spent forty-one days in the burn unit at the University of Iowa Hospitals and Clinics before succumbing to his injuries.

         To explain Konicek's choice of this landing strip, we must turn the clock back to 1984. Then-landowner Richard Merkel sat on the GCREC board. He was a hobby pilot and asked the GCREC to bury the power lines bordering his property to permit safe access to a grass airstrip he kept alongside the road. He created and maintained the airstrip by leveling the land and mowing the grass short. Acceding to Merkel's wishes, the GCREC buried the power lines under the road. The 1984 project's permit application states, "Reason for [change] is removing overhead line for clearance for Richard Merkel airstrip." Merkel and Konicek were childhood friends. They enjoyed building and flying planes together.

         In 1989, Merkel divorced, and the decree awarded the property to his ex-wife, Ila Yung.[2] At trial, Yung testified that during their marriage the couple owned a plane and used their personal landing strip for about five years. She testified the airstrip was not for public access, but several friends did use it on occasion. She said Konicek landed there twice. In 1991, Yung enrolled the land in the United States Department of Agriculture Conservation Reserve Program (CRP). The CRP prohibits the use of encumbered land for crops and other purposes, including aviation.

         Yung testified the strip was last used for aviation in 1989. Since then, no one had asked her permission to land on the property and she was not aware of any aircraft doing so.[3] Had anyone asked permission, Yung testified she would have said no. At the time of the crash, the land was covered in switch grass, which Yung estimated could grow three feet tall. But in the summer of 2012, Yung obtained "emergency haying" permission from CRP officials. Yung had the grass mowed in August, but testified it had grown by the time of the crash in November. The hangar where Merkel previously housed his plane now stored hay.

          For two decades after the GCREC buried the power lines in 1984, customers complained increasingly of power outages.[4] In 2008, the GCREC applied for federal funds to improve service on its nearly one hundred miles of electrical wires, including those adjacent to the Yung property. The GCREC retired the old power lines and installed new ones suspended above ground on thirty-foot poles. As part of the project, the GCREC was required to obtain numerous permits and approvals.[5] The GCREC successfully obtained each one-except for a permit from Tama County for the land adjacent to the Yung property, required under Tama County Ordinance #IV.4. At trial, the GCREC operating manager admitted not seeking this permit. Despite not obtaining the permit, the GCREC completed the project in May 2012, several months before Morrison's fatal crash.

         In November 2014, the Morrisons sued the GCREC[6] for negligence in Max's death. After extensive pretrial litigation, the claims went before a jury. For eight days, the parties offered evidence on the GCREC's alleged duties, the condition and status of the land where the crash occurred, and the comparative fault of Konicek and Morrison. At the close of the plaintiffs' case and again at the close of all evidence, the Morrisons unsuccessfully moved for directed verdict.

         The court instructed the jury on negligence, the GCREC's scope of liability, the comparative fault of Konicek and Morrison, and damages. The jury deliberated for less than three hours, asked no questions, and rendered a unanimous verdict. The verdict form set out these questions:

Question No. 1: Was Grundy County Rural Electric Cooperative at fault?
Answer "yes" or "no."
ANSWER: [If your answer to Question No. 1 is "no," do not Answer any further questions.]
Question No. 2: Was Grundy County Rural Electric Cooperative's fault a cause of any damage to the Plaintiffs? Answer "yes" or "no."
ANSWER: [If your answer to Question 2 is "no,"
do not answer any further questions.]

(Brackets included in original.) On the fault question, the jury answered, "Yes." The jury did not specify on which of the four possible grounds set out in Instruction No. 14 it found the GCREC at fault. On the causation question, the jury answered, "No." As commanded by the instructions, the jury did not answer any further questions directed at the scope of the GCREC's liability, the comparative fault of Konicek or Morrison, or the amount of damages. The court gave no special interrogatories, and the parties did not poll the jury after its verdict.

         The Morrisons filed a motion for judgment notwithstanding the verdict (JNOV). The court denied the motion and entered judgment for the GCREC. The Morrisons now appeal-raising numerous claims. In response, the GCREC contends we need not address any error the Morrisons allege concerning fault or comparative fault because any error would be harmless. The GCREC also raises several error-preservation challenges.

          II. Scope and Standards of Review

         If we were to reach the merits of the issues raised, we would apply the following standards of review. For rulings on motions for directed verdict, we review for correction of legal error. Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008). We check most evidentiary rulings for an abuse of discretion, meaning we assess whether the district court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. See Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002). And we review decisions concerning jury instructions for correction of legal error when there is not a discretionary component. Andersen v. Khanna, 913 N.W.2d 526, 536 (Iowa 2018). "Iowa law requires a court to give a requested jury instruction if it correctly states the applicable law and is not embodied in other instructions." Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699, 707 (Iowa 2016) (quoting Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994)). "[E]rror in giving or refusing jury instructions does not merit reversal unless it results in prejudice to the defendant." Struve v. Payvandi, 740 N.W.2d 436, 439 (Iowa 2007).

         III. Threshold Issue: Harmless Error on Fault and Comparative Fault

         Given the jury's finding that the GCREC acted negligently but that its negligence did not cause the plane crash, we face a gatekeeping dilemma- whether to reach the substance of the Morrisons' claims that bear on fault or comparative fault. The GCREC argues any allegations related to its negligence, even if meritorious, were cured when the jury ultimately found it was at fault. In the GCREC's view, because the jury reached a favorable result for the Morrisons on fault, any alleged error impacting that aspect of the verdict was harmless and need not be addressed on appeal. The GCREC also contends alleged errors that bear on comparative fault are harmless because once the jurors decided the GCREC's negligence was not a cause of the crash, the instructions did not permit them to consider the relative negligence of Konicek and Morrison.

         To analyze these harmless-error claims, we look to the mechanics of the jury's negligence finding. To prevail, the Morrisons had to show the GCREC had a duty to conform to a standard of conduct and failed to do so. See Estate of Gottschalk by Gottschalk v. Pomeroy Dev., Inc., 893 N.W.2d 579, 586 (Iowa 2017). Jury Instruction No. 14 allowed the jury to find the GCREC was negligent in one or more of four particulars:

1.GCREC failed to bury the powers lines "to eliminate the risk created by their proximity to the . . . ...

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