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Messerschmidt v. City of Sioux City11/14/2002
eris is instructive. Under this doctrine, when specific words are used in a statute followed by general words, the general words are restricted to include only objects similar to those specified. Shatzer v. Globe Am. Cas. Co., 639 N.W.2d 1, 5 (Iowa 2001). Here, the specific words are "issuance of permit," "inspection," and "investigation." These words contemplate actions by the city such as the inspection of buildings and elevators, food inspection, and issuance of permits. See, e.g., Williams v. Bayers, 452 N.W.2d 624, 626 (Iowa Ct. App. 1990) (where plaintiff injured in a building in which city conducted inspections and issued permits, municipality not liable under Iowa Code section 613A.4(10) (renumbered Iowa Code ยง 670.4(10)) because these actions did not constitute supervision or control over the premises). The words "issuance of permit," "investigation," and "inspection" are followed by the more generic phrase, "or otherwise."
The term "otherwise" is not so broad as to include every municipality action or omission. Pursuant to the doctrine of ejusdem generis, "otherwise" is intended to define the preceding terms with some flexibility. This flexibility is intended to accommodate for similar municipality actions not within the express contemplation of the legislature when it enacted this immunity provision. "Otherwise" includes only those actions of a municipality similar to an inspection, investigation, or issuance of a permit. Here, the city did not inspect, investigate, or issue a permit. The city's actions in removing the barricade are not remotely similar to the actions contemplated by section 670.4(10). In this case, it cannot be said the statute contemplates the city's removal of a barricade as coming within the protective ambit of section 670.4(10) immunity.
Messerschmidts claim the city's negligence in removing the barricade was a proximate cause of Cheryl's injuries. Because the city did not conduct an investigation or inspection or issue a permit, section 670.4(10) does not apply to this case. In the court's ruling on the city's motion for a new trial, the court properly found it did not err in refusing to instruct the jury on immunity premised upon Iowa Code section 670.4(10).
The city amended its original answer arguing this immunity after the close of Messerschmidts' case in chief. Because section 670.4(10) immunity does not protect the city from liability, we do not reach Messerschmidts' objection to the trial court's allowance of this late amendment and the trial court is affirmed as to this ruling. B.Apportionment of Fault and Verdict
The jury found the city eighty-five percent at fault and Mekdara fifteen-percent liable. In the city's motion for a new trial, it argued the verdict was not sustained by sufficient evidence. The court ruled questions of negligence, contributory negligence, and proximate cause are questions for the jury. See Iowa R. App. P. 6.14(6)(j). The court found sufficient facts upon which to uphold the jury's verdict and apportionment of fault.
The jury's determination of fault was a question of fact appropriate for resolution by the jury. See Morgan v. Perlowski, 508 N.W.2d 724, 728 (Iowa 1993). There was substantial evidence upon which the jury could have found the city was in part at fault for Cheryl's injuries. The facts relevant to this issue are as follows.
The city held and sponsored the Big Parade on city property. Pottebaum had been drinking while he was in charge of safety and security at the Big Parade. Though he testified he did not drink when he was "actually working," in fact, Pottebaum had about four beers before ordering the barricade to be taken down. Control of safety and security did
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