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Adams v. Wal-Mart Stores12/13/1999
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
The defendant appeals from a judgment entered after a jury trial for the plaintiff in her action seeking damages for injuries she suffered when she slipped and fell on the defendant's property.
Defendant appeals a judgment entered for plaintiff after a jury trial in this slip and fall case. Defendant claims: (1) certain photographs were improperly admitted into evidence; (2) the trial court permitted improper expert testimony to be admitted into evidence; (3) the special verdict form was not proper; (4) there was insufficient evidence to instruct the jury on the failure to warn; (5) there was insufficient evidence to instruct the jury on the admission by a party opponent; (6) the jury's verdicts were inconsistent; and (7) the court should not have admitted evidence regarding subsequent remedial measures. We affirm on appeal.
On January 29, 1996, Barbara Adams went to a Wal-Mart Store in Des Moines, accompanied by her five or six year old grandson. The day was very cold and windy. It had snowed a few days previously, but was not snowing on that day. Adams purchased a picture frame and toy, then left the store. She slipped and fell on some ice on the sidewalk in front of the store. Wal-Mart employees came to Adams's assistance.
Adams was taken by ambulance to Mercy Hospital, where she was seen by Dr. Marshall Flapan. Dr. Flapan determined Adams had a broken bone in her left wrist and two broken fingers in her left hand. Adams was placed in a cast. She also suffered bruises on her right knee as a result of the fall. She was released to return to work on June 3, 1996. Dr. Flapan gave the opinion Adams had permanent discomfort caused by soft tissue injuries in her wrist and hand.
On January 30, 1997, Adams filed a petition against Wal-Mart Stores, Inc., claiming its negligence caused her injuries. The case was tried to a jury. The jury awarded Adams $4909.37 for past medical expenses and $20,000 for future pain and suffering. The jury allocated fault twenty-five percent to Adams and seventy-five percent to Wal-Mart. The district court entered judgment on the verdict.
Defendant filed a combined motion for new trial and/or judgment notwithstanding the verdict. The district court adjusted the assessment of interest awarded in the case, but otherwise denied the combined motion. Defendant appealed.
I. Scope of Review
Our scope of review in this slip and fall case is for the correction of errors at law. Iowa R. App. P. 4.
II. Photographs
Plaintiff's expert, James Fafinski, a structural engineer, took several photographs of the Wal-Mart Store in December 1997. These photographs were admitted into evidence over defendant's objection. Fafinski testified concerning the photographs. On appeal, defendant claims the photographs should not have been admitted because there was insufficient evidence to show the conditions present at the time the photographs were taken were similar to the conditions at the time of the accident.
Under Iowa law, photographs are admissible if they are illustrative of the testimony of witnesses. Maier v. Illinois Cent. R. Co., 234 N.W.2d 388, 394 (Iowa 1975). The admissibility of such evidence rests within the sound discretion of the trial court. Galbraith v. George, 217 N.W.2d 598, 602 (Iowa 1974). A court does not abuse its discretion in admitting photographs where there is a similarity of conditions between the time the photographs were taken and the date of the accident. Id. The burden of showing similarity in conditions is on the party offering the evidence. Hubby v. State, 331 N
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