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Graber v. City Of Ankeny9/7/2000
at she violated the law, she had a legal excuse for doing so. The court, however, decided that the proper instruction was that the plaintiff claimed that if Allen violated the law, Allen had a legal excuse for doing so.
We find no error in the court's instruction. " he burden of proof on an issue is upon the party who would suffer loss if the issue were not established." Beyer v. Todd, 601 N.W.2d 35, 41 (Iowa 1999). In this case, the plaintiff would benefit from proof of the defense, as a finding that Allen had a legal excuse for being in the intersection on a red light would reduce Allen's fault, thereby potentially resulting in an allocation of more fault to the City. It is, therefore, the plaintiff who bears the burden of proof on this issue. While Allen may have initially claimed a legal excuse for her conduct, she was no longer a party at the time of trial. By the time this case was submitted to the jury, legal excuse was the plaintiff's claim, not Allen's. Therefore, the court's instruction was proper.
B. Res ipsa loquitur.
The doctrine of res ipsa loquitur is a rule of evidence that permits an inference that the defendant was negligent. See Brewster v. United States, 542 N.W.2d 524, 528-29 (Iowa 1996). Two elements must be present for the doctrine to apply: "(1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used." Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 686 (Iowa 1993). A party must produce substantial evidence of both elements to be entitled to an instruction on general negligence under the res ipsa loquitur doctrine. Brewster, 542 N.W.2d at 529.
Here, the plaintiff claims the trial court erred in refusing to give her requested instruction allowing the jury to consider this principle. We conclude no error occurred because the plaintiff failed to produce substantial evidence of the first requirement that the injury be caused by an instrumentality under the defendant's exclusive control. To satisfy this element, " he injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that the [defendant] was responsible for all reasonably probable causes to which the accident could be attributed." W. Page Keeton et al., Prosser & Keeton on Torts § 39, at 248 (5th ed. 1984).
In the present case, the immediate cause of the plaintiff's injuries was the collision of her vehicle with the car driven by Allen. Thus, the instrumentality directly causing the plaintiff's injuries—Allen's car—was not in the exclusive control of the City. The fact that an additional instrumentality—the traffic lights—were potentially a cause of the plaintiff's injuries and were exclusively in the City's control is insufficient to entitle the plaintiff to an instruction on res ipsa loquitur.
C. Plaintiff's fault.
At the conclusion of the evidence and over the plaintiff's objection, the trial court allowed the City to amend its answer to allege the fault of the plaintiff for failing to maintain a proper lookout. The court then instructed the jury on the plaintiff's alleged fault and gave the following definition of "proper lookout":
"Proper lookout" is the lookout a reasonable person would keep in the same or similar situation. It means more than looking and seeing. It includes being aware of the operation of the driver's vehicle in relation to what the driver saw or should have seen.
The plaintiff does not challenge this instruction as a correct statement of the law, but does contend there
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