Preview:

IN THE COURT OF APPEALS OF IOWA

No. 0-733 / 09-1852  
Filed December 8, 2010

ROBERT J. DOTY,
Plaintiff-Appellant,

vs.

DARWIN OLSON d/b/a RIVER
CITY CONSTRUCTION AND  
STORAGE,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, C.H. Pelton, Judge.  

Robert Doty appeals the district court.s refusal to instruct the jury concerning negligence arising from alleged OSHA violations and challenges the district court.s order taxing him the cost of deposition transcripts and court costs.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


Anthony Bribriesco, Bettendorf, for appellant.
William Bush, Davenport, for appellee.

Considered by Sackett, C.J., and Potterfield and Tabor, JJ.

  
TABOR, J.
Plaintiff Robert Doty seeks a new trial of his personal injury suit, alleging the district court erred in refusing to instruct the jury that defendant Darwin Olson.s alleged violation of federal or state Occupational Safety and Health Administration (OSHA or IOSHA) standards was either negligence per se or some evidence of negligence.  Because Doty was not Olson.s employee, we agree with the district court.s determination that he was not entitled to an instruction on per se negligence.  And, although we conclude the district court should have instructed the jury that an OSHA violation could be considered as non-conclusive proof of negligence, Doty is not entitled to a new trial because he did not suffer prejudice when the court declined to give the instruction.
Doty also challenges the district court.s taxation of costs.  Finding the district court erred in taxing the costs of two deposition transcripts to Doty, we reverse and remand for entry of an amended cost assessment.
I. Facts and Procedural History
Olson is a homebuilder and operates a company called River City Construction.  Olson contracted with the plumbing company which employed Doty and eventually hired Doty to do plumbing jobs as an independent contractor.  Doty installed plumbing for Olson on six different building projects, two of which were still underway in January 2006.  
On January 16, 2006, Doty stopped by a housing addition in Camanche where Olson.s company was constructing a new home.  Doty testified that Olson asked him to visit the site to offer a bid on the plumbing.  Olson testified that he
planned to do the plumbing on that project himself and that Doty entered the site without an invitation.  While at the construction site, Doty stepped between stud walls and onto a tarp covering the ten-by-three-foot stairway shaft.  The insulated tarp had been placed across the shaft by Alvin Cromer, owner of Cromer Masonry, Inc., to prevent the freshly poured concrete from freezing.  Doty fell eight to ten feet onto the concrete basement floor, hitting his head and elbow and shattering his heel.  
Doty called Olson on his cell phone for help because he did not know the address of the construction site to tell a 911 dispatcher.  Olson called 911 and rushed to the site.  Fire department rescuers hoisted Doty from the basement with ropes and pulleys because the stairs had not been installed yet.  Doty was eventually transported to the University of Iowa Hospital where surgeons repaired his calcaneus fracture with nine screws and a metal plate.  Doty underwent a second surgery in April 2007 to remove the plate and screws.  After his injury, Doty could not perform the physically demanding work he used to do as a plumber.
Doty filed a petition at law on December 13, 2006, alleging that Olson.s negligence in failing to take proper safety precautions at the construction site caused his injuries.1  The matter went to trial on July 13, 2009.  Both sides called expert witnesses to testify regarding OSHA and argued about the relevance of the OSHA standards in their closing arguments.  After presentation of the evidence, Doty.s attorney requested that the court instruct the jurors that they
1 Doty settled his claim against Cromer Masonry before trial.

could use Olson.s alleged violation of OSHA standards in deciding the question of negligence.  The district court declined to give Doty.s requested instructions.  
On July 20, 2009, the jury returned a verdict awarding Doty $37,500 in damages, including $18,000 in past lost wages; $2000 in past loss of function of the body; $8000 in present value of future loss of function of the body; $3500 in past pain and suffering; and $6000 in future pain and suffering.  The jury assessed the percentages of comparative fault as follows:  fifteen percent for Olson, thirty-five percent for Cromer, and fifty percent for Doty.  The district court entered judgment in the amount of $5625 for Doty.  The judgment entry taxed costs to Olson in the amount of $528.58.  
Olson applied to recover $4305.07 in costs

Download 0-733.pdf

Iowa Law