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IN THE COURT OF APPEALS OF IOWA No. 6-057 / 04-1710 Filed April 26, 2006

LAURIE FEATHERSTONE and LAURIE FEATHERSTONE, as Mother, Guardian and Next Friend of CIERRA NICOLE FEATHERSTONE, a Minor, Plaintiff-Appellant, vs. HY-VEE, INC., Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

The plaintiff appeals from the district court's order granting partial summary judgment and the jury verdict on her negligence claim. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

J. Russell Hixson of Hixson & Brown, P.C., Clive, for appellant.

Kenneth R. Munro of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.

Heard by Sackett, C.J., and Vogel and Mahan, JJ.

2 VOGEL, J. Laurie Featherstone appeals the grant of partial summary judgment by the district court and subsequent verdict after a jury trial on her petition against HyVee, Inc. We affirm the grant of partial summary judgment as to the punitive damages claim, but reverse the jury's verdict as to damages and remand for a new trial due to the admission of improper and unfairly prejudicial evidence. I. Background Facts and Proceedings. 1 At approximately 9:00 p.m. on October 5, 2000, Featherstone tripped and fell due to a hole in the parking lot paving of a Hy-Vee grocery store in Des Moines. The hole was approximately seven inches wide, twelve inches long and one and three-quarters inches deep. Featherstone suffered injuries to her knees and lower back, several contusions, and a broken tooth. She filed suit claiming Hy-Vee was negligent, causing her to incur damages for medical expenses, pain and suffering, emotional pain, loss of past and future wages, and loss of earning capacity. She also filed a loss of consortium claim on behalf of her daughter. 2 After extensive and contentious discovery, Hy-Vee stipulated that it would admit negligence and proceed to trial solely on damages. granted Hy-Vee's motion for partial summary The district court dismissing

judgment,

Featherstone's claim for punitive damages. The district court also ruled in limine that evidence of Featherstone's abortion five months prior to the fall was relevant
We note the massive appendix contained some duplicative material. We prompt appellant to comply with Iowa Rule of Appellate Procedure 6.15(a), by including only relevant portions of the record in the appendix, thereby reducing both printing expense and the burden on the appellate courts in referencing points on appeal. See State v. Oppelt, 329 N.W.2d 17, 21 (Iowa 1983).
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Her husband's loss of consortium claim was dismissed prior to trial.

3 as an alternative cause of her emotional distress claim and not unduly prejudicial under Iowa Rule of Evidence 5.403. The parties proceeded to trial on damages which included expert testimony on both sides concerning the existence and extent of Featherstone's injuries and the consortium claim of Featherstone's daughter. Although the parties agreed to a sealed verdict under Iowa Rule of Civil Procedure 1.931(3), the district court read the verdict with both trial counsel appearing by telephone before the jury was discharged. The jury awarded

Featherstone $10,000 past medical expenses, $5500 past lost wages, and $5000 past physical and mental pain and suffering. The jury also awarded

Featherstone's daughter loss of consortium damages, $5000 for past loss and $20,000 for future loss. Neither attorney objected to the verdict or otherwise indicated that there was a problem, and the district court confirmed that they were finished making a record so the jury could be discharged. Featherstone then filed a motion for new trial arguing the jury's verdict was inconsistent and failed to administer substantial justice between the parties, claiming it was not supported by substantial evidence. The district court, noting "the nature and extent of plaintiff's injuries and damages were hotly contested at trial," overruled the motion. Giving deference to the jury's findings, the court concluded the

verdict was internally consistent, supported by evidence, and effected substantial justice between the parties. Featherstone appeals. II. Punitive Damages on Partial Summary Judgment. Featherstone first asserts that the district court erred by granting partial summary judgment dismissing her punitive damage claim. She based her claim

4 for punitive damages on Hy-Vee's alleged prior knowledge of the parking lot hazard that she claimed rose to the level of willful and wanton disregard for her safety. 3 Under Iowa Rule of Civil Procedure 1.981(3), summary judgment is

appropriate only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. In ruling upon a motion for

summary judgment, the court considers "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Iowa R. Civ. P. 1.981(3). "No fact question exists if the only dispute concerns the McNertney v. Kahler, ___

legal consequences flowing from undisputed facts." N.W.2d ___,

(Iowa 2006) (citing Estate of Beck v. Engene, 557 N.W.2d 270, We therefore examine the record before the district court in

271 (Iowa 1996)).

deciding whether the court correctly applied the law. McNertney, ___ N.W.2d at ___. Punitive damages are appropriate when "[w]hether, by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another." Iowa Code

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