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Messerschmidt v. City of Sioux City11/14/2002
Messerschmidts cross-appeal.
On appeal, the city argues: 1) under its discretionary function it is immune from liability under Iowa Code section 670.4(3); 2) it could not be assigned a percentage of fault for Mekdara's fault under Iowa Code section 668.10(1); and (3) it was immune from liability for placement of the barricade under Iowa Code section 670.4(10). The city also contends the jury's apportionment of fault was manifestly erroneous and not supported by substantial evidence. Messerschmidts argue the district court abused its discretion in allowing the city to belatedly amend its answer to add the section 670.4(10) immunity defense. They also argue the city did not preserve error on its section 668.10(1) immunity.
II. The Merits
On appeal we must consider whether the discretionary function immunity applies in this case to shield the city from liability for its action in removing the barricade. We also must determine whether the trial court properly sustained the jury's verdict that the city was predominantly at fault. Finally, we must determine whether the trial court abused its discretion in allowing the city to belatedly amend its answer to add the section 670.4(10) immunity defense.
A. Discretionary Function Immunity Under Iowa Code Section 670.4(3)
We are called upon to determine whether the actions of the city in removing the barricade to allow frontage road access was a decision entitled to immunity. Our review of this issue is for correction of errors at law. Pinkerton v. Jeld-Wen, Inc., 588 N.W.2d 679, 680 (Iowa 1998). We recently addressed the discretionary function immunity in Doe v. Cedar Rapids Community School District, ___ N.W.2d ___ (Iowa 2002). We articulated the appropriate test for determining whether a governmental action is immune from liability. First, we determine whether the challenged conduct was a matter of choice for the acting government employee. Id. at ___ (citing Goodman v. City of LeClaire, 587 N.W.2d 232, 237-38 (Iowa 1998)). Then, if we conclude the challenged conduct was the product of judgment, we must determine whether the judgment is of the kind the legislature intended to shield from liability when it enacted Iowa Code section 670.4(3). In applying this two-step test, the district court found the discretionary function immunity does not apply because Pottebaum's decision to remove the barricades was not the product of choice. We now turn to the first prong of this test.
The first factor to examine is whether an element of judgment or discretion was involved in the city's decision to remove the barricade. Though Messerschmidts contend there was no choice involved, we disagree. Just as we recently found choice existed at the heart of a school district's decision to hire, retain, and supervise a particular teacher, here we find the city exercised choice in its decision to take the barricade down. Doe, ___ N.W.2d at ___. Messerschmidts argue the city is liable because, when it removed the barricade, it failed to comply with a previously adopted policy. There is no evidence to suggest the city had a policy stating the barricade was to be removed only when all people were gone from the premises. At best, there was evidence of a consensus of the Big Parade workers that the barricades would stay in place until all of the festival activities had ended. In years past, the barricades were not removed until the very end of the event when no people were left. Evidence of this custom and usage alone does not constitute a policy on the issue. When the parade worker decided it was time to take the barricade down, he exercised choice based on judgment. The first prong of the test is satisfied.
We now
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