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Messerschmidt v. City of Sioux City11/14/2002
not shift during the night from Pottebaum to any other city employee. Pottebaum admitted he was in a hurry to attend a Cajun party after the fireworks. The accident occurred shortly after the city removed the barricade. Witnesses testified Mekdara was in control of the car and was not weaving. After the accident, Pottebaum admitted the barricade should not have been removed. He also acknowledged that when the city removed the barricade, other workers in golf carts were put in danger because the carts did not have reflectors on them.
The record also supports the conclusion that a sober driver could have hit Messerschmidt under the same condition as did the drunken driver. Witnesses testified the golf carts had no lights or reflective material on them. Though there are a few street lights on the road where Messerschmidt was injured, testimony reveals the area of the accident was not well-lit. The road Messerschmidt was injured on is a busy road. While the barriers remained in place, the traffic flow was consistent with approximately eight cars every fifteen minutes approaching the barriers trying to get down the road. No other cars had passed through the area between the time the barricade was removed and when the drunk driver hit Messerschmidt. There were no other warning signs that Big Parade visitors were still in the area and drivers should approach with caution.
Given these facts, we conclude there was substantial evidence upon which the jury could apportion fault between the city and the drunken driver finding the city was negligent and its negligence was a proximate cause of Cheryl's injuries. Because substantial evidence exists to support the jury's finding of fault, the court properly upheld the jury's apportionment of fault. See Cook v. State, 431 N.W.2d 800, 807 (Iowa 1988) (court must determine whether substantial evidence exists to support jury's apportionment of fault); see also Fox v. Interstate Power Co., 521 N.W.2d 762, 764 (Iowa Ct. App. 1994) (court cannot substitute is judgment for that of the jury). We affirm.
III. Conclusion
The city is not immune from liability for its actions in removing this particular barricade during the Big Parade. The decision did not involve social, political, or economic policies the discretionary function immunity is designed to protect. Because the city is not immune from liability under Iowa Code section 670.4(10), we do not address Messerschmidts' objection to the city's late amendment adding this defense. Substantial evidence in the record supports the jury's conclusion that the city was liable in part for Cheryl's injuries.
AFFIRMED ON APPEAL AND CROSS-APPEAL.
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