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Maxwell v. Palmer12/22/2000
of systematic conduct; and (b) they should have occurred under substantially similar circumstances, so as to be naturally accountable for by a system only, and not as casual recurrences. Iowa R. Evid. 406, Committee Comment (1983) (quoting 1 Wigmore on Evidence, 2d Ed., section 376, quoted with approval in Barrick v. Smith, 80 N.W.2d 326, 329 (Iowa 1957)).
After a careful examination of the record, we conclude the proposed testimony did not rise to the level of habit evidence. Johnson did not remember specific dates or the number of times she saw Geoffory Palmer driving by her home. There was no evidence he exceeded the speed limit every time he drove by her home. She observed him driving on a gravel road with a steep hill, rather than a flat stretch of pavement like the one on which the accident occurred. She testified Geoffory was not always driving the same vehicle, and she admitted she is not a very good judge of speed. The proposed testimony's prejudicial nature outweighed its probative value. The trial court did not abuse its discretion in excluding the proffered testimony.
Damage Claim.
In a pretrial motion for adjudication of law points, Maxwell requested the court to determine: "Loss of enjoyment of life, sustained after loss of consciousness or death, is an element of damage recoverable in a wrongful death action." The trial court ruled plaintiffs should be allowed to present the claim and relevant evidence at trial. At trial, however, the court sustained Palmers' objection to Maxwell's evidence of Richard Maxwell's loss of enjoyment of life post unconsciousness and post death. Maxwell claims the court erred in denying the claim of damage of loss of enjoyment of life sustained after the loss of consciousness or death.
Palmers contend Maxwell's argument is moot in light of the jury's finding Maxwell was fifty-one percent at fault. We agree. An action is moot if it no longer presents a justiciable controversy because the issues involved have become academic or nonexistent. Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540 (Iowa 1997). "Our test of mootness is whether an opinion would be of force or effect in the underlying controversy." Id. (quoting Wengert v. Branstad, 474 N.W.2d 576, 578 (Iowa 1991)). Because we resolve the other issues raised by Maxwell in favor of Palmers, thereby upholding the jury's verdict finding Maxwell fifty-one percent at fault, we need not decide this issue. Resolution of the issue will not have "any practical legal effect upon an existing controversy." See id. Therefore, we conclude the issue is moot.
AFFIRMED.
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