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Messerschmidt v. City of Sioux City11/14/2002
City appeals from an adverse jury verdict in a personal injury action and plaintiffs cross-appeal claiming the court abused its discretion in allowing the city to belatedly amend its answer to claim immunity under a new code section. AFFIRMED ON APPEAL AND CROSS-APPEAL.
While volunteering at the Big Parade celebration in Sioux City, Cheryl Messerschmidt was seriously injured when a drunk driver plowed into the golf cart in which she was seated. Before the accident, a Big Parade worker made the decision to remove the road barricade which prevented cars from moving in this area during the celebration. Messerschmidt sued the city for her injuries. The city argues it is immune under three theories. The city also argues there was not substantial evidence to support the jury's apportionment of fault. Messerschmidts cross-appeal arguing the trial court erred in allowing the city to amend its answer after the close of plaintiff's case in chief. Because we find the city is not immune from liability under the facts of this case, we affirm both on the appeal and on the cross- appeal.
I. Background and Facts
In July 1999, Cheryl Messerschmidt was working for a community celebration in Sioux City known as the "Big Parade." The Big Parade is an event the city holds together with its sister city, Lake Charles, Louisiana. Big Parade sponsors and vendors pay into the city budget. Approximately ten thousand people participate in the Big Parade. A Sioux City employee was in charge of running the Big Parade. The city contracted with vendors to provide various services during the Big Parade. As part of this event, Sioux City police officers were paid to help provide security. At the city's request, the Woodbury County Sheriff's Reserve unit also assisted in providing security and crowd control. The sheriff's reserve unit was to report to and follow any orders given by Martin Pottebaum, the member of the event committee in charge of security and safety for the Big Parade.
During the event, the city provided barricades to block off a frontage road near the riverfront. The barricade was to be in place until people were off the riverfront road. However, following the evening parade and fireworks, but before the area was clear, the city removed the barricades blocking access to the riverfront road. Martin Pottebaum gave the order to the sheriff's reserve unit to lift the barricade. Pottebaum does not recall giving this order though other testimony suggests he did. Pottebaum conceded the barricades should not have been lifted when they were. When the barricades were removed, there were still between 1,500 and 2,000 people in the area. Shortly after the sheriff reserve officers took the barricade down, Sisangviane Mekdara, an underage drunken driver, drove his car down the frontage road and hit the golf cart in which Messerschmidt was seated. Messerschmidt was thrown from the golf cart and injured. She and her husband sued the city claiming the city removed the barricades too soon after the fireworks. The city, in turn, sued Mekdara as a third-party defendant and Mekdara defaulted.
In its amended answer, the city claimed it is immune from suit under the discretionary function immunity exception of Iowa Code section 670.4(3) (1999). At the close of Messerschmidts' case, the court allowed the city to add an immunity defense based on Iowa Code section 670.4(10) (damages caused by a third party not under the supervision of the city). The court denied the city's motion for a directed verdict. The jury apportioned eighty-five percent fault to the city and fifteen percent fault to Mekdara. The jury returned a million-dollar verdict for Messerschmidt and her husband. The city appeals and
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