SUSAN K. MORRISON, EXECUTOR ON BEHALF OF THE ESTATE OF MAX L. MORRISON, SUSAN K. MORRISON, EXECUTOR ON BEHALF OF SUSAN K. MORRISON, SUSAN K. MORRISON, EXECUTOR ON BEHALF OF BRIAN L. MORRISON AND MICHAEL S. MORRISON, Plaintiffs-Appellants,
GRUNDY COUNTY RURAL ELECTRIC COOPERATIVE, Defendant-Appellee.
from the Iowa District Court for Tama County, Mitchell E.
in negligence action appeal a jury verdict finding the rural
electric cooperative at fault after a plane crash but finding
no causation. AFFIRMED.
R. Walker Jr. of Beecher, Field, Walker, Morris, Hoffman
& Johnson, PC, Waterloo, for appellants.
G. Gamble and Gregory R. Brown of Duncan, Green, Brown &
Langeness, PC, Des Moines, for appellee.
by Tabor, P.J., and Mullins and Bower, JJ.
plaintiffs 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.
Facts and Prior Proceedings.
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.
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
1989, Merkel divorced, and the decree awarded the property to
his ex-wife, Ila Yung. 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.
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. 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.
two decades after the GCREC buried the power lines in 1984,
customers complained increasingly of power
outages. 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. 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.
November 2014, the Morrisons sued the GCREC 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
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.
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
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).
Threshold Issue: Harmless Error on Fault and Comparative
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.
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
1.GCREC failed to bury the powers lines "to eliminate
the risk created by their proximity to the . . .