Negligence Liability For Failing To Remove Accumulated Snow

Not surprisingly, failure to clear your sidewalks of snow can get you sued if someone falls on the snow and gets hurt.  Even though property owners aren’t responsible for the fact that it snowed or how much or how long it snowed, they still have to remove it in a reasonable and timely manner.  The Iowa Supreme Court has issued decisions in the past that concerned liability for negligent snow removal.

The duty to remove natural accumulations of snow is based on actual or constructive notice of the snow accumulation and a reasonable period of time within which to remove it.  In other words, the property owner has to know that snow has accumulated and have time to remove the snow before there can be liability for negligence.  Regarding the timeliness of snow removal, the Iowa Supreme Court does not require property owners to remove a snow accumulation before a snowfall has ended.

The requirements of notice and an opportunity to remove the snow only apply to situations involving natural accumulations of snow.  They do not extend to situations in which the property owner has control over the condition that caused the snow to accumulate.  Examples of such an artificial condition include landscaping and architectural design.  A property owner is presumed to know about an artificial snow accumulation.

Liability can also arise by doing a shoddy job of snow removal.  Poor snow removal alters the natural snow accumulation and turns it into an unnatural accumulation.  So does removing the snow and depositing it elsewhere; if someone falls in the area where the snow was deposited after removal, that’s considered an injury caused by an unnatural accumulation of snow.  Another possibility is removing snow and depositing it in the street or creating a large snowbank that restricts visibility, either of which can cause a car accident.  Under any of those scenarios, the stricter liability rules for removal of unnatural snow accumulation apply rather than the more lenient standards for removal of natural snow accumulations.

The “Contact Sports” Exception For Physical Injuries Suffered While Playing A Sport

Iowa law recognizes that participants in certain types of activities or circumstances owe less of a duty of care to other participants.  In other words, in certain situations it’s harder to sue someone than it’d normally be.  Those instances normally involve situations in which someone has voluntarily exposed themselves to a greater risk of harm and thus can’t be heard to complain when harm occurs.

One such activity that has been identified as an exception is contact sports.  Participants in contact sports are not governed by the general rules of negligence.  Rather, participants in contact sports are merely required to refrain from reckless or intentional conduct.  This standard recognizes that known risks associated with a contact sport are assumed by participants in the sport and that it is contrary to the competitiveness of contact sports to impose a duty on participants to protect co-participants from such known and accepted risks through the exercise. So participants in contact sports are not completely free from legal responsibility for their conduct that creates a risk of injury, but they do enjoy a substantially lower duty of care in protecting other participants.  This applies not only to the conduct that occurs within the rules and objectives of the sport, but also by conduct from participants who fail to properly execute an activity contemplated by the sport or who violate the sport’s rules.

So what is a contact sport?  This analysis does not focus on whether the participants were engaged in a formally organized or coached sport, but instead centers on whether the activity inherently involves the risk of injurious contact to participants.  Not all sports inherently involve contact capable of injury.  The purpose of deciding whether an activity is a contact sport is to determine if the risk of harm of injurious contact was known and understood as a part of the sport. If the risk of injury is a part of the sport, then the participants must only refrain from reckless or intentional conduct causing injury.

Once an activity has been identified as a “contact sport,” the injured party can only recover if the higher standard of recklessness is proved.  In order to prove recklessness, a plaintiff must show that the participant has intentionally done an act of an unreasonable character in disregard of a known risk or a risk so obvious that the participant must be taken to have been aware of it and so great as to make it highly probable that harm would follow.  An act performed by a participant in a sport that produces a radically different result from the normal and expected result of the act, even when performed negligently, gives rise to an inference that the result was purposeful.

The Iowa Court Of Appeals Rules That Motorcyclists Have No Right To Expect Cars To See Them

On December 18, 2013 the Iowa Court of Appeals upheld a defense verdict against a motorcyclist who sued for personal injuries after he was nearly hit by a car and crashed his bike trying to swerve around the vehicle.  The accident happened at one of Jordan Creek mall’s entrance/exit areas.  Interestingly, the defendant driver had a stop sign.  The motorcyclist had no stop sign and had the right-of-way.  The driver didn’t see the motorcyclist at first, pulled out in front of him, and caused the bike to crash when the rider had to make a choice between slamming into the side of the car or swerving around it.

The jury found that the other driver was not negligent.  The motorcyclist received no compensation for his physical injuries.  So how did the motorcyclist lose this case even though he didn’t have a stop sign and the other driver did?

One problem was that there wasn’t any contact between the car and the motorcycle.  Motorcycle cases can be more difficult to win when the bike doesn’t hit the other vehicle.  It’s almost like the biker would be better off biting the bullet, maintaining course, and smashing into the other vehicle.  Otherwise, motorcyclists will almost always face a defense argument that there was room to get around the vehicle and no need to take the evasive maneuver that led to the bike crashing.  And juries often agree.

I also wonder whether this motorcyclist was penalized for being on a bike instead of a more visible car or truck.  This quote from the decision certainly approves the “I didn’t see him” defense, but it’s not entirely clear whether the motorcycle’s small profile played a role: “The evidence in this case is clear that Swank did not see Barrett until after she proceeded into the intersection. It is additionally clear Swank looked forward and to both sides before moving the vehicle. Barrett’s argument faults Swank for failing to look over her shoulder and to the rear in order to see Barrett as he left 68th Street and turned to cross the frontage road.  Though . . . Swank had a duty to maintain and establish awareness of vehicles behind her, it does not follow that Swank was required to maintain awareness of a vehicle behind her, a distance to the side, and on another road.”  It’s interesting that this driver was able to see all the other vehicles at this intersection and yield the right-of-way to them, but somehow missed the motorcycle.

The court of appeals concluded its decision by laying blame with the motorcyclist for relying on his right-of-way and not anticipating that the other driver would fail to yield and pull out in front of him: “The situation that confronted Barrett was a foreseeable occurrence, which a prudent driver should reasonably anticipate. A driver pulling out into traffic at a stop sign in a busy mall parking lot is foreseeable. . . .”

The court of appeals doesn’t explain exactly what the motorcyclist was supposed to do in light of the apparent expectation that other drivers wouldn’t obey the law at the intersection.  Get off his motorcycle and walk it to the intersection?  Park on the side of the road until everyone leaves and he’s the only vehicle left in the parking lot?  Turn around and go home?  I think the Iowa Court of Appeals made a mistake in this case by concluding that the other driver wasn’t negligent.

Recovery Of Money Damages For Bystander Emotional Distress

Iowa law allows plaintiffs in some instances to recover damages for emotional distress damages caused by witnessing a loved one’s serious injury or possible death.  This claim is known as “bystander emotional distress.”  In the 1981 Iowa Supreme Court case that first allowed bystander emotional distress claims, the court gave a stark example of such a situation – A parent who sees her child run over by a car is allowed to sue for the horror caused by witnessing that tragedy.

When determining whether a bystander is allowed to seek emotional distress damages because of witnessing a catastrophic event, such as a motorcycle accident, Iowa’s courts consider (1) whether the bystander was located near the scene of the accident; (2) whether the emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the bystander and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Iowa’s courts are careful to ensure that the bystander’s claim is serious and has some guarantee of genuineness.  The law cannot compensate for every minor disturbance to a person’s mental wellbeing.  To be compensable, the bystander’s mental distress must be serious.  While mental distress may exist without objective physical symptoms, compensable mental distress should ordinarily be accompanied with physical manifestations of the distress.

In addition, a bystander emotional distress claim requires proof that a reasonable person in the bystander’s position would have reason to believe, and the bystander must believe, that the direct victim of the accident would be seriously injured or killed.  Not all injuries reach the level of severity necessary to give rise to a bystander emotional distress claim.  “Serious injury” means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

Civil Money Damages Liability For Intentional Infliction Of Emotional Distress

Emotional distress damages are usually not available unless the plaintiff has also suffered physical injuries.  The Iowa Supreme Court has been careful to restrict the types of cases in which emotional distress damages can be recovered even without physical injury.  Once such claim is “intentional infliction of emotional distress.”  Under that theory, a plaintiff can recover damages for emotional distress regardless of whether a physical injury has also been suffered.

These claims are difficult to prove.  To be liable for the tort of intentional infliction of emotional distress, a plaintiff must prove (1) outrageous conduct by the defendant; (2) the defendant’s intentional causing, or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering from severe or extreme emotional distress; and (4) that the defendant’s outrageous conduct was the  cause of the emotional distress.  Iowa’s courts differentiate between “mere bad conduct” and “outrageousness.”

To satisfy the requirement that a defendant’s conduct be extremely egregious, mere insult, bad manners, or hurt feelings are insufficient.  Liability has been found only when the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, a claim for intentional infliction of emotional distress only exists when the recitation of the facts to an average member of the community would arouse that person’s resentment against the defendant.

Liability under this theory can only be imposed for intentional or reckless behavior.  A person intends to inflict emotional distress when they want to cause distress, or know such distress is substantially certain to result from their conduct.  A person’s conduct is reckless if they know or have reason to know their conduct creates a high degree of probability that emotional distress will result and they act with deliberate disregard of that probability.

To establish “severe or extreme” emotional distress, a plaintiff must offer substantial evidence of emotional harm with direct evidence of either physical symptoms of the distress or a clear showing of a notably distressful mental reaction caused by the outrageous conduct.  The plaintiff must present more evidence than he or she just felt bad for a period of time.  A plaintiff must prove that he or she suffered extremely unpleasant mental reactions.

Personal Injury Or Wrongful Death Cases Involving Children And Attractive Nuisances

Normally property owners are not responsible for a trespasser’s personal injuries or wrongful death on their property.  The reason for that is simple — A property owner can’t protect people that have no business being there and aren’t known to be there.   But children who are too young to appreciate danger are an exception to that general rule.  Under the “attractive nuisance” doctrine, property owners can be held liable for injuries to or the death of a young trespassing child.

Attractive nuisance claims are difficult to prove.  Iowa’s courts have been reluctant to ascribe a broad meaning to the concept of an “attractive nuisance.”  In fact, the Iowa Supreme Court sometimes seems to regret ever having recognized the attractive nuisance doctrine in the first place.

A sign of that regret is the supreme court’s strict concept of what constitutes an attractive nuisance.  A person suing for personal injuries to or wrongful death of a child must prove quite a bit to be successful:

• The property owner was aware or should have been aware that children were likely to enter the property.  Perhaps there’s something on the property that would attract young children and draw them onto it.  Or maybe the property is near a school, park, or some other area where children are frequently passing by.
• The property owner has something on the property that could clearly be harmful or deadly to children.
• The trespassing child is too young to comprehend the risk of the dangerous or deadly object on the property.
• The danger to children is greater than any difficulties that would confront the property owner if the owner eliminated the hazardous object or exercised caution to make the object safer.
• The property owner did not take reasonable safety measures to protect children from the dangerous or deadly object.

The attractive nuisance doctrine is a corollary of the special rules regarding child/vehicle car accidents.  Both recognize that in certain situations regarding young children adults must give more care than adults normally would for older children or adults.

Loss Of Consortium Claims Involving Children And Personal Injury Or Wrongful Death

Earlier I wrote about spousal loss of consortium claims.  But loss of consortium claims involving children can also arise from personal injury or wrongful death, defective product, car accident, motorcycle accident, or dog bite claims.  There are two types of consortium claims involving children — Those in which a parent sues for injury or death to a child and those in which a child sues for injury or death to a parent.

A child’s claim for damages caused by a parent’s injury or death is known as “loss of parental consortium.”  Loss of parental consortium represents the loss of the services that the injured or dead parent would have provided to the parent’s children.  Loss of parental consortium also  can compensate for the loss of the injured or deceased parent’s company, affection, and cooperation and the assistance of the injured parent.  In Iowa, adult children can also recover for the loss of parental consortium.

Another claim available to children that arises only for the death of a parent is “loss of parental support.”   A child may recover the value of the amount of financial support that the deceased parent would have contributed had the parent lived.  Damages for loss of support are generally limited in time to when the child reaches age eighteen, although there are a few exceptions to that rule that rarely come into play.

The factors used in determining the value of loss of parental consortium and loss of parental support are the same as those for spousal consortium and spousal support claims.  I identified those in my earlier post.

Iowa law also provides parents claims for injury to a minor child and death of a minor or adult child.   A parent may recover damages for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child.  A parent may also recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.  Note the key distinction between minor children and adult children under this law — Once a child is considered an adult under Iowa law, a parent may only sue for loss of consortium and other damages if the adult child dies.  Parents usually do not have any legal rights stemming from an adult child’s injury, no matter how bad that injury might be.

Remedies For Injury To Or Wrongful Death Of A Spouse Under Iowa Law

Under Iowa law, when one spouse suffers personal injuries or wrongful death, for example in a dog attack, motor vehicle accident, motorcycle accident, by a defective product, or as a result of police misconduct, the uninjured or surviving spouse has the right to sue for “loss of consortium.”  Spousal consortium is the fellowship of a husband and wife and the right of each one to the benefit of company, cooperation, affection, services, useful, industry, attention, and aid of the other.  Those types of damages are often placed in the categories of “loss of services” and “loss of marital benefits.”  If a spouse dies, the surviving spouse may recover  the value of the amount of financial support that the deceased spouse would have contributed had the spouse lived.

To decide the value of a deceased spouse’s services that would have been provided to the surviving spouse, courts evaluate  the circumstances of the deceased’s life; the deceased’s age at the time of death; the deceased’s health, strength, character, and life expectancy; the deceased’s capacities, abilities, and efficiencies in performing spousal duties; the deceased’s skills and abilities in providing instruction, guidance, advice, and assistance to the surviving spouse; the surviving spouse’s needs; and all other facts and circumstances bearing on the value of the deceased spouse’s services.

In determining how much support a deceased spouse would have contributed to the other spouse, courts consider the deceased spouse’s  age at the time of death; health, strength, character, skills, and training; life expectancy of the deceased and the surviving spouse; previous employment and earnings; expectancy for earnings in the future; the age of the surviving spouse; the present and future need for support; the amount of money out of the deceased’s income that would have been available for support after payment of federal and state taxes; and all other facts and circumstances bearing on the value of financial support.

Police Use Of Deadly Force And Federal Civil Rights Law — When Have The Police Gone Too Far?

There recently has been an extensive amount of media coverage and opinions about the deadly shooting of a teenager by the Ames Police Department after a vehicle pursuit.  Some support the officer’s actions, others criticize him for various reasons.  I’m not offering opinions on whether the officer’s actions were justified.  Instead, I wanted to review the legal standards under federal civil rights laws that govern law enforcement use of deadly force.  These are the general rules that are used when law enforcement agencies are sued for personal injuries or wrongful death stemming from the use of deadly force.

Well, maybe one opinion first.  Commentators who criticize the officer’s actions frequently assert that the teenage suspect was unarmed.  That’s wrong.  The teenager was armed with a truck.  He had used that truck as a battering ram/weapon during the police pursuit that ended with his shooting death by police.  Now, whether or not he was trying to again use the truck as a weapon at the time the officer shot him is a subject for fair debate.  But let’s stop pretending that the suspect wasn’t armed.  I once had a police tactics/use of force expert point out in court that any of the tools, implements, and other objects found in a garage can be used as a weapon, including a can of beer.  So the concept of an “armed” suspect extends well beyond guns and knives and easily includes motor vehicles.

Moving on to the general law concerning deadly force, apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.  The Fourth Amendment prohibits officers from using deadly force to make an arrest unless the individual poses a threat of serious physical harm.  When the suspect poses no immediate threat to the officer and no threat to others, deadly force is not justified.   Notwithstanding probable cause to seize or arrest a suspect, an officer may not always do so by killing the person.

All claims that law enforcement officers have used excessive force, whether deadly or not, in the course of an arrest, investigatory stop, or other seizure are analyzed under the Fourth Amendment’s objective reasonableness standard.  The key question is whether officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.  Officers’ underlying intent or motivation in using force is not a factor in the objective reasonableness inquiry. 

The reasonableness of an officer’s use of force, including deadly force, is evaluated by looking at the totality of the circumstances.  Relevant circumstances include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade by flight.  If the suspect threatens the officer with a weapon or there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, when feasible, some warning has been given.

Snow, Ice, And The Sudden Emergency Doctrine

With wintertime driving comes the increased likelihood of motor vehicle accidents causing personal injuries or wrongful death.  Falling snow, morning fog during a brief warming period, snow, ice, and chemicals on roads, tall snow banks, frosted windows, and snow or slush spray from the road can all decrease or eliminate visibility, make  stopping and handling difficult, and sometimes simultaneously cause all those problems.  Drivers certainly need to exercise more caution during winter driving and are generally expected to do so, or face negligence liability for an accident.  But sometimes all the care in the world won’t prevent a wintertime accident.  In extreme circumstances, drivers may try to use the “sudden emergency doctrine” to avoid negligence liability.

The sudden emergency doctrine excuses a defendant’s negligence when confronted with an emergency not of the defendant’s own making.  Sudden emergency has been defined as “(1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity.  A sudden emergency requires an “instantaneous response,” or “something fairly close.”

Iowa courts will usually tell juries that a sudden emergency is an unforeseen combination of circumstances that calls for immediate action or a sudden or unexpected occasion for action.  A driver of a vehicle who, through no fault of the driver’s own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.

The sudden emergency doctrine has been applied to motor vehicle accident cases.  Drivers use the sudden emergency defense to argue that they were not negligent because they encountered something unexpected on the road and did the best they could.  Examples include cases involving hazardous road conditions and ice.

A word of caution for those of you expecting to barrel around on the roads this winter and then scream “sudden emergency!” when the other driver you obliterate sues you.  Although the Iowa Supreme Court has retained the sudden emergency doctrine as an aspect of Iowa’s neglience law, it has expressed dissatisfaction with the doctrine and indicated various reasons why the doctrine should be eliminated from Iowa law.  So the next person who tries to use the sudden emergency defense may find that it no longer exists in Iowa.

Regardless, the sudden emergency doctrine is rarely determined to be applicable to a motor vehicle negligence case.  On the few occasions when the sudden emergency defense has been before Iowa’s appellate courts over the past twenty years, the courts have ruled in every case that the defendant was not entitled to argue the sudden emergency defense because there was no “sudden emergency.”  The Iowa Supreme Court has warned that it’ll narrowly apply the sudden emergency defense to avoid turning every road condition into a “sudden emergency.”