**IOWA CIVIL JURY INSTRUCTIONS**

**Updated October 2004**

**TABLE OF CONTENTS**

[Introduction](#INTRO)

[Suggestions For Instructing Juries](#SUGG)

[Model Jury Instructions](#a7007)

[100 General Instructions](#CH100)

[200 Damages](#chapter-200)

[300 Verdicts](#CH300)

[400 Comparative Fault](#CH400)

[500 Independent Contractor](#CH500)

[600 Motor Vehicles - Rules Of The Road](#CH600)

[700 Negligence - Proximate Cause - Co-Employee-Employer Liability -
Vicarious](#CH700)

[Liability - Sidewalk Liability-Distress and Injury](#CH700)

[800 Misrepresentation](#CH800)

[900 Premises Liability](#chapter-900)

[1000 Products Liability](#chapter-1000)

[1100 Warranty](#CH1100)

[1200 Business Relations - Interference](#CH1200)

[1300 Dram Shop Liability](#CH1300)

[1400 Insurer - Excess Liability](#CH1400)

[1500 Malpractice - Legal](#chapter-1500)

[1600 Malpractice - Medical](#CH1600)

[1700 Railroad Crossings](#CH1700)

[1800 Abuse Of Process](#CH1800)

[1900 Assault and Battery](#CH1900)

[2000 Emotional Distress - Intentional Infliction](#chapter-2000)

[2100 Libel And Slander](#chapter-2100)

[2200 Malicious Prosecution](#CH2200)

[2300 Bailments](#CH2300)

[2400 Contracts](#CH2400)

[2500 Eminent Domain](#CH2500)

[2600 Estates - Claim For Services](#Ch2600)

[2700 Will Contest](#CH2700)

[2800 False Arrest](#CH2800)

[2900 Governmental Liability](#CH2900)

[3000 42 U.S.C. Section 1983 Actions](#chapter-3000)

[3100 Employment Rights](#CH3100)

[3200 Fiduciary Liability](#CH3200)

[3300 Corporate Shareholder, Officer And Director Liability](#CH3300)

[3400 Commercial Torts](#chapter-3400)

[3500 Conspiracy](#CH3500)

[3600 Controlling Conduct Of Third Parties](#CH3600)

[3700 Civil Commitment of Sexually Violent Predator -- Essentials For
Commitment](#CH3700)

[Cross Reference Table - Iowa Civil Jury Instructions To Iowa Uniform
Civil Jury Instructions](#Cross)

[Alphabetical Index](#Alpha)

[]{#INTRO .anchor}**IOWA CIVIL JURY INSTRUCTIONS**

**IN THE SUPREME COURT OF IOWA**

IN THE MATTER OF THE IOWA )

STATE BAR ASSOCIATION UNIFORM ) RESOLUTION

COURT INSTRUCTION COMMITTEE )

The court, meeting en banc in administrative session at Des Moines on
May 6, 1987, upon a motion duly made and seconded, unanimously adopted
the following resolution:

For many years the public has benefited from the efforts of the Special
Committee on Uniform Court Instructions of the Iowa State Bar
Association.

The unique contributions of that committee in the promulgation of
Uniform Jury Instructions are well documented in the opinions of this
court.

The committee has furnished us with a copy of the Plain English Redraft
of the Iowa Civil Jury Instructions which was approved by the Board of
Governors of The Iowa State Bar Association on December 2, 1986.

Under Iowa law any jury instructions might be challenged in the usual
manner on appeal to this court. That right of review on the part of
future litigants precludes us from considering the Plain English Redraft
Instructions for official approval or disapproval. We nevertheless note
this newest contribution of the committee with a deep sense of
appreciation and satisfaction.

It is readily apparent that juries will better understand legal
principles explained by the instructions under the Plain English
Redraft. The quality of justice will be improved. The bench, the bar
and, especially, the public, will benefit from the committee\'s work in
producing the Plain English Redraft.

The court commends the Uniform Court Instruction Committee for this
remarkable achievement and commends these instructions for consideration
by the trial bench.

Done at Des Moines, Iowa, this 6th day of May, 1987.

W.W. Reynoldson, Chief Justice James Carter, Justice

David Harris, Justice Charles Wolle, Justice

Arthur McGiverin, Justice Louis Lavorato, Justice

Jerry Larson, Justice Linda Neuman, Justice

Louis Schultz, Justice

INTRODUCTION

The purpose of jury instructions is to give the law to the jury in
language they can understand. The committee believes the best way to do
this is to write jury instructions in plain English. With this in mind,
the committee asked the Board of Governors of The Iowa State Bar
Association to approve redrafting the Iowa Civil and Criminal Uniform
Jury Instructions in plain English. The Board approved this request. It
also approved our request to employ a communications specialist to help
us translate \"legalese\" into \"plain English\" and we did this.

While the Iowa Supreme Court cannot give prior approval to the
instructions, the Court has unanimously approved, in principle, the
plain English redraft of the Iowa Civil and Criminal Jury Instructions.
The Court also adopted a resolution commending the Civil Instructions
for consideration by the Trial Bench. A copy of the resolution follows
this Introduction.

Before drafting was done the committee:

1\. Reviewed some of the literature relating to plain English jury
instructions.

2\. Examined other State and Federal Instructions.

3\. Adopted general guidelines for drafting jury instructions.

4\. Adopted specific guidelines for drafting plain English jury
instructions.

In an address delivered at the Tenth Circuit Judicial Conference on July
9, 1965, Judge Edward J. Devitt, Chief Judge, United States District
Court, District of Minnesota, gave ten practical suggestions about
Federal jury instructions, including the following:

\"Instructions should be phrased in clear, concise language applicable
to the case. Sometimes counsel will quote verbatim from an appellate
court decision dwelling on a point involved in the trial and urge it as
a proposed instruction. Appellate court opinions are written for a
purpose different from that for which jury instructions are designed.
The point of law may be controlling, but not the language. It is the
legal principle, not the words expressing it, which is pertinent and
which will be helpful to the jury. Legal points from decided cases
should be couched in language appropriate to the facts and to the
parties in the lawsuit.

\"The use of legal terminology in instructions should be avoided as much
as possible. In preparing instructions we should remember that the task
is to shed light and not to add to the darkness. The use of some legal
terms such as 'proximate cause' and 'reasonable doubt' cannot be
avoided. But to the extent possible, we should use that which Chief
Judge Alfred Murrah calls 'the common speech of man'.\"

We adopted the general approach suggested by Judge Devitt in drafting
these instructions.

The general guidelines for drafting jury instructions adopted by the
committee are that each jury instruction shall be:

1\. An accurate statement of the law.

2\. As brief and concise as practicable.

3\. Understandable to the average juror.

4\. Neutral, unslanted and free of argument.

The specific guidelines for drafting plain English jury instructions
adopted by the Committee are:

1\. Use plain English, simple, short and concrete words.

2\. Make it look and sound like talk.

3\. Use short sentences.

4\. Use short paragraphs.

5\. Omit unnecessary words.

6\. Use active voice rather than passive.

7\. Avoid negative forms, and especially double negatives.

8\. Use personal pronouns, \"I\" for the Judge and \"you\" for the jury.

9\. Whenever possible, leave out the words: \"as to\", \"determine\",
\"facilitate\", \"herein\",

\"hereof\", \"however\", \"if any\", \"therefrom\", \"theretofore\",
\"thereof\", \"otherwise\",

\"require\", \"that\", \"the\", \"whether\", and \"which.\"

10\. Replace \"locate\" with \"find\"; \"prior to\" with \"before\";
\"sufficient\" with \"enough\"; \"in

the event that\" with \"if.\"

11\. Put prepositions at the end whenever it sounds right to do so.

12\. Use sex neutral language: eliminate the pronoun; repeat the noun;
use a synonym for

the noun; change the pronoun to \"the\", \"a\", \"this\" and the like;
use \"one\"; use \"it\";

use the imperative; reword; and use the passive (the last resort).

13\. Where appropriate for clarity and ease of understanding, use lay
language in place of

exact case or statutory language so long as an accurate statement of the
law is

maintained.

INSTRUCTIONS MUST ALWAYS BE TAILORED TO FIT THE FACTS OF THE CASE. These
instructions are not intended to provide jury instructions which are
applicable without change in all cases. Instead, they will provide
judges and lawyers with models of clear, concise, accurate and impartial
instructions which are understandable to the average juror. They can be
adapted for use in particular cases and used as a guide for tailoring
instructions.

The instructions will be referred to as Iowa Civil Jury Instructions.
There is a cross reference table of the Iowa Civil Jury Instructions to
the Iowa Uniform Civil Jury Instructions. Included in it is a table
showing additional Iowa Uniform Civil Jury Instructions not included in
the Iowa Civil Jury Instructions. The chapter designations will be 100,
200, etc. to avoid any problem with Shepards Citator. However, we
recommend you keep your old set for reference.

We have included some suggestions for instructing juries and a model set
of jury instructions. We hope these instructions and material will
assist trial judges and lawyers in giving the law to the jury in
language they can understand.

[]{#SUGG .anchor}SUGGESTIONS FOR INSTRUCTING JURIES

The Iowa Civil Jury Instructions have been prepared to help attorneys
and judges communicate more effectively with juries. A number of
suggestions have been brought to our attention which the Bench and Bar
may wish to consider when trying a lawsuit. They include:

1\. Organizing instructions in a logical order which corresponds to the
order in which the jury should approach the case.

2\. Providing the jury with an explanatory instruction and transitions
to help it understand the logical framework of the instructions.

3\. Reading helpful \"standard\" instructions to the jury before (a)
jury selection, or (b) opening statements. Examples include instructions
on preponderance of the evidence, proximate cause, negligence,
credibility, definition of evidence, and burden of proof. Explain that
more detailed instructions will be given at the end of the trial after
all the evidence has been presented.

4\. Reading the instructions to the jury before final arguments. This
allows counsel to comment on the instructions without having to qualify
their remarks by \"I believe the Court will instruct...\" It may also
make the closing arguments more understandable.

5\. Giving each juror an individual set of instructions to read while
the judge is reading the instructions.

6\. Using an overhead projector so the jury can read the instructions
while the judge reads them.

7\. Providing more than one set of instructions for the jury when they
deliberate.

8\. Telling the jurors the procedure to use if they have any questions
during their deliberations. For example:

\"Occasionally, after a jury retires to the jury room, the members have
questions. I have prepared the instructions after carefully considering
this case with the parties and lawyers. I have tried to use language
which is generally understandable. Usually questions about instructions
can be answered by carefully re-reading them. If however, any of you
feel it necessary to ask a question, you must do so in writing and
deliver the question to the court attendant. I cannot communicate with
you without first discussing your question and potential answer with the
parties and lawyers. This process naturally takes time and deliberation
before I can reply. The foreperson shall read my response to the jury.
Keep the written question and response and return it to the Court with
the verdict.\"

"The court attendant who has been working with me on this case is in the
same position as I am. \[He\] \[She\] has taken an oath not to
communicate with you except to ask if you have agreed upon a verdict.
Please do not put \[him\] \[her\] on the spot by asking \[him\] \[her\]
any questions. You should direct your questions to the Court and not to
the court attendant.\"

9\. The Committee recommends the following admonition be given in all
cases before the trial starts:

Personal prejudices have no place in court. You must set aside and
disregard any personal feelings of bias or prejudice which you may have
based on sex, race, religion, national origin, age or disability. You
must decide this case only on the basis of the evidence which is
admitted and the law as I explain it to you.

10\. The Court may wish to permit the jury an opportunity to take notes
of the trial proceedings. In that event, Iowa Criminal Jury Instruction
100.17 should be given with the Court\'s other instructions.

[]{#CH100 .anchor}CHAPTER 100

GENERAL INSTRUCTIONS

[100.1](#a1001) Statement Of The Case

[100.2](#a1002) Duties Of Judge And Jury, Instructions As Whole

[100.3](#a1003) Burden Of Proof, Preponderance Of Evidence

[100.4](#a1004) Evidence

[100.5](#a1005) Deposition Testimony

[100.6](#a1006) Interrogatories

[100.7](#a1007) Requests For Admissions

[100.8](#a1008) Stipulated Testimony

[100.9](#a1009) Credibility Of Witnesses

[100.10](#a10010) Viewing

[100.11](#a10011) Hypothetical Question, Expert Testimony

[100.12](#a10012) Opinion Evidence, Expert Witness

[100.13](#a10013) Contradictory Statements, Non-Party, Witness Not Under
Oath

[100.14](#a10014) Contradictory Statements, Non-Party, Witness Under
Oath

[100.15](#a10015) Statements By A Party Opponent

[100.16](#a10016) Impeachment, Character And Reputation

[100.17](#a10017) Impeachment, Public Offense

[100.18](#a10018) General Instruction To Jury

[100.19](#a10019) Clear Convincing And Satisfactory Evidence

[100.20](#a10020) Corporate Party

[100.21](#a10021) Cautionary Instruction - Juror\'s Notes

[100.22](#a10022) Spoliation of Evidence

[]{#a1001 .anchor}**100.1 Statement Of The Case.** Members of the Jury:
In this case plaintiff(s) claim \[set forth the claims of
defendant(s)\].

The defendant(s) \[set forth the denials of defendant(s) and any
defenses\].

Do not consider this summary as proof of any claim. Decide the facts
from the evidence and apply the law which I will now give you.

[]{#a1002 .anchor}**100.2 Duties Of Judge And Jury, Instructions As
Whole.** My duty is to tell you what the law is. Your duty is to accept
and apply this law.

You must consider all of the instructions together because no one
instruction includes all of the applicable law.

The order in which I give these instructions is not important.

Your duty is to decide all fact questions.

Do not be influenced by any personal likes or dislikes, sympathy, bias,
prejudices or emotions.

# Authority

[Roushar v. Dixon]{.underline}, 231 Iowa 993, 2 N.W.2d 660 (1942)

[]{#a1003 .anchor}**100.3 Burden Of Proof, Preponderance Of Evidence**.
Whenever a party must prove something they must do so by the
preponderance of the evidence.

Preponderance of the evidence is evidence that is more convincing than
opposing evidence. Preponderance of the evidence does not depend upon
the number of witnesses testifying on one side or the other.

**Authority**

[Mabrier v. A.M. Servicing Corporation of Raytown]{.underline}, 161
N.W.2d 180 (1968)

[]{#a1004 .anchor}**100.4 Evidence**. You shall base your verdict only
upon the evidence and these instructions.

Evidence is:

1\. Testimony in person or by deposition.

2\. Exhibits received by the court.

3\. Stipulations which are agreements between the attorneys.

4\. Any other matter admitted (e.g. answers to interrogatories, matters
which judicial notice was taken, and etc.).

Evidence may be direct or circumstantial. The weight to be given any
evidence is for you to decide.

Sometimes, during a trial, references are made to pre-trial statements
and reports, witnesses\' depositions, or other miscellaneous items. Only
those things formally offered and received by the court are available to
you during your deliberations. Documents or items read from or referred
to which were not offered and received into evidence, are not available
to you.

The following are not evidence:

1\. Statements, arguments, questions and comments by the lawyers.

2\. Objections and rulings on objections.

3\. Any testimony I told you to disregard.

4\. Anything you saw or heard about this case outside the courtroom.

# Authority

[Iowa Rules of Evidence]{.underline}.

[]{#a1005 .anchor}**100.5 Deposition Testimony.** Certain Testimony has
been read into evidence from a deposition. A deposition is testimony
taken under oath before the trial and preserved in writing. Consider
that testimony as if it had been given in court.

# Authority

[Iowa R. Civ. P. 1.704]{.underline}

[Farley v. Seiser]{.underline}, 316 N.W.2d 857 (Iowa 1982)

[]{#a1006 .anchor}**100.6 Interrogatories**. During this trial, you have
heard the word \'interrogatory\'. An interrogatory is a written question
asked by one party of another, who must answer it under oath in writing.
Consider interrogatories and the answers to them as if the questions had
been asked and answered here in court.

**Authority**

[Iowa R. Civ. P. 1.509]{.underline}

[]{#a1007 .anchor}**100.7 Request For Admissions.** The \[plaintiff\]
\[defendant\] served on the \[defendant\] \[plaintiff\] a written
request for the admission of the truth of certain matters of fact. You
will regard as being conclusively proved all such matters of fact which
were expressly admitted by the \[defendant\] \[plaintiff\] or which
\[defendant\] \[plaintiff\] failed to deny.

**Authority**

[Iowa R. Civ. P. 1.510, 1.511]{.underline}

[]{#a1008 .anchor}**100.8 Stipulated Testimony.** Counsel have
stipulated that if \...\...\...\...\...\...\.... were called as a
witness \[he\] \[she\] would testify as stipulated. Consider stipulated
testimony as if it had been given in court.

[]{#a1009 .anchor}**100.9 Credibility Of Witnesses.** You will decide
the facts from the evidence. Consider the evidence using your
observations, common sense and experience. You must try to reconcile any
conflicts in the evidence; but, if you cannot, you will accept the
evidence you find more believable.

In determining the facts, you may have to decide what testimony you
believe. You may believe all, part or none of any witnesses\' testimony.

There are many factors which you may consider in deciding what testimony
to believe, for example:

1\. Whether the testimony is reasonable and consistent with other
evidence you believe;

2\. The witnesses\' appearance, conduct, age, intelligence, memory and
knowledge of the facts; and,

3\. The witnesses\' interest in the trial, their motive, candor, bias
and prejudice.

**Authority**

[Burger v. Omaha & C.B. St. Ry. Co]{.underline}., 139 Iowa 645, 117
N.W.35 (1908)

[]{#a10010 .anchor}**100.10 Viewing.** You have looked at
\_\_\_\_\_\_\_\_\_ to help you better understand the evidence. You must
base your decision only on the evidence admitted in the courtroom and
not upon facts you learned when you looked \_\_\_\_\_\_\_\_\_\_.

# Authority

[Iowa R. Civ. P. 1.922]{.underline}

# Comment

Note: The Committee, but for the case of [Sloan v. City of Des
Moines]{.underline}, 205 Iowa 823, 825; 218 N.W. 301, 302, would
eliminate the last sentence of this instruction.

[]{#a10011 .anchor}**100.11 Hypothetical Question, Expert Testimony.**
An expert witness was asked to assume certain facts were true and to
give an opinion based on that assumption. This is called a hypothetical
question. If any fact assumed in the question has not been proved by the
evidence, you should decide if that omission affects the value of the
opinion.

# Authority

[Cody v. Toller Drug Co.]{.underline}, 232 Iowa 475, 5 N.W.2d 824 (1942)

[]{#a10012 .anchor}**100.12 Opinion Evidence, Expert Witness.** You have
heard testimony from persons described as experts. Persons who have
become experts in a field because of their education and experience may
give their opinion on matters in that field and the reasons for their
opinion.

Consider expert testimony just like any other testimony. You may accept
it or reject it. You may give it as much weight as you think it
deserves, considering the witness\' education and experience, the
reasons given for the opinion, and all the other evidence in the case.

# Authority

[Crouch v. National Livestock Remedy Co.]{.underline}, 210 Iowa 849, 231
N.W. 323 (1930).

[]{#a10013 .anchor}**100.13 Contradictory Statement, Non-party, Witness
Not Under Oath.** You have heard evidence claiming \[name of witness\]
made statements before this trial while not under oath which were
inconsistent with what the witness said in this trial.

Because the witness did not make the earlier statements under oath, you
may use them only to help you decide if you believe the witness.

Decide if the earlier statements were made and whether they were
inconsistent with testimony given at trial. You may disregard all or any
part of the testimony if you find the statements were made and they were
inconsistent with the testimony given at trial, but you are not required
to do so.

Do not disregard the testimony if other evidence you believe supports it
or if you believe it for any other reason.

# Authority

[Iowa R. Evid. 5.613]{.underline}; [State v. Barry]{.underline}, 549
N.W.2d 316, 318 (Iowa App. 1996) (A prior inconsistent statement of a
witness not under oath may be considered for impeachment purposes only).

# Comment

This instruction should be given when a non-party witness has made a
prior inconsistent statement while not under oath. If the non-party
witness made a prior inconsistent statement under oath, then Instruction
100.14 should be given. If the non-party witness has made prior
inconsistent statements both under oath and not under oath, then both
Instruction 100.13 and Instruction 100.14 should be given to clarify and
distinguish the two forms of statements for the jury.

[]{#a10014 .anchor}**100.14 Contradictory Statements, Non-Party, Witness
Under Oath.** You have heard evidence claiming \[name of witness\]made
statements before this trial while under oath which were inconsistent
with what \[name of witness\]said in this trial. If you find these
statements were made and were inconsistent, then you may consider them
as part of the evidence, just as if they had been made at this trial.

You may also use these statements to help you decide if you believe
\[name of non-party witness\]. You may disregard all or any part of the
testimony if you find the statements were made and were inconsistent
with the testimony given at trial, but you are not required to do so. Do
not disregard the trial testimony if other evidence you believe supports
it, or if you believe it for any other reason.

# Authority

A prior inconsistent statement of a witness given under oath is
substantive evidence which may be considered for any purpose. [State v.
Thompson]{.underline}, 397 N.W.2d 679, 683 n.2 (Iowa 1986): [Iowa R.
Evid.,]{.underline} 5.801(d)(1)(A).

**Comment**

This Instruction should be given when a non-party witness has made a
prior inconsistent statement while under oath. If the non-party witness
made a prior inconsistent statement while not under oath, then
Instruction 100.13 should be given. If the non-party witness has made
prior inconsistent statements both under oath and not under oath, then
both Instruction 100.14 and Instruction 100.13 should be given to
clarify and distinguish the two forms of statements for the jury.

[]{#a10015 .anchor}**100.15 Statements By A Party Opponent.** You have
heard evidence claiming \[name of party\] made statements before this
trial \[while under oath\] \[and\] \[while not under oath\].

If you find such a statement was made, you may regard the statement as
evidence in this case the same as if \[name of party\] had made it under
oath during the trial.

If you find such a statement was made and was inconsistent with \[name
of party\]\'s testimony during the trial you may also use the statement
as a basis for disregarding all or any part of \[name of party\]\'s
testimony during the trial but you are not required to do so. You should
not disregard \[name of party\]\'s testimony during the trial if other
credible evidence supports it or if you believe it for any other reason.

[]{#a10016 .anchor}**100.16 Impeachment, Character And Reputation.** You
have heard evidence claiming the witness has a \[reputation\]
\[character trait\] for not telling the truth. You may use that evidence
only to help you decide whether to believe the witness and how much
weight to give \[his\] \[her\] testimony.

# Authority

[Iowa R. Evid]{.underline}., rule 5.609

[Iowa R. Evid]{.underline}., rule 5.405

[]{#a10017 .anchor}**100.17 Impeachment, Public Offense.** \[The witness
(name of witness) has admitted he or she\] \[you have heard evidence
claiming that the witness (name of witness)\] was convicted of a crime.

You may use that evidence only to help you decide whether to believe the
witness and how much weight to give their testimony.

# Authority

[Iowa R. Evid.,]{.underline} rule 5.609

[]{#a10018 .anchor}**100.18 General Instruction To Jury.** Upon retiring
you shall select a foreman or forewoman. It will be his or her duty to
see discussion is carried on in an orderly fashion, the issues are fully
and freely discussed, and each juror is given an opportunity to express
his or her views.

Your attitude at the beginning of your deliberations is important. It is
not a good idea for you to take a position before thoroughly discussing
the case with the other jurors. If you do this, individual pride may
become involved and you may later hesitate to change an announced
position even if shown it may be incorrect. Remember you are not
partisans or advocates, but are judges - judges of the facts. Your sole
interest is to find the truth and do justice.

[]{#a10019 .anchor}**100.19 Clear Convincing And Satisfactory
Evidence.** Evidence is clear, convincing and satisfactory if there is
no serious or substantial uncertainty about the conclusion to be drawn
from it.

# Authority

[Raim v. Stancel]{.underline}, 339 N.W.2d 621, 624 (Iowa Appeals 1983)

[Sinclair v. Allender]{.underline}, 26 N.W.2d 320, 326 (Iowa 1947)

[]{#a10020 .anchor}**100.20 Corporate Party.** The fact that a plaintiff
or defendant is a corporation should not affect your decision. All
person are equal before the law, and corporations, whether large or
small, are entitled to the same fair and conscientious consideration by
you as any other person.

**Comment**

Note: If scope of employment is an issue, Iowa Civil Jury Instruction
730.1 and 730.2 may be useful.

[]{#a10021 .anchor}**100.21 Cautionary Instruction - Juror\'s Notes.**
During the trial, you have been allowed to take notes. You may take
these with you to the jury room to use in your deliberations. Remember,
these are notes and not evidence. Generally, they reflect the
recollection or impressions of the evidence as viewed by the person
taking them, and may be inaccurate or incomplete.

Upon reaching a verdict, leave the noted in the jury room, and they will
be destroyed.

# Authority

[Iowa R. Civ. P. 1.926 (1)]{.underline}

[]{#a10022 .anchor}**100.22 Spoliation of Evidence.** (Name of party
asserting the conclusion) claims that (name of party) has intentionally
\[altered\] \[destroyed\] \[failed to produce\] evidence consisting of
(describe evidence). You may, but are not required to, conclude that
such evidence would be unfavorable to (name of party).

Before you can reach this conclusion, (name of party asserting the
conclusion) must prove all of the following:

1\. The evidence exists or previously existed.

2\. The evidence is or was within the possession or control of

(name of party).

3\. (Name of party)\'s interests would call for production

of the evidence if favorable to that party.

4\. (Name of party) has intentionally \[altered\] \[destroyed\] or

\[failed to produce\] the evidence without satisfactory

explanation.

For you to reach this conclusion, more than the mere \[alteration\]
\[destruction\] \[non-production \] of the evidence must be shown. It is
not sufficient to show that a third person \[altered\] \[destroyed\]
\[is withholding\] the evidence without the authorization or consent of
(name of party).

######## Authority

*[Phillips v. Covenant Clinic]{.underline}, 625 N.W.2d 714 (Iowa 2001)*

*[Hendricks v. Great Plains Supply Co]{.underline}., 609 N.W.2d 486
(Iowa 2000)*

*[Gamerdinger v. Schaefer]{.underline}, 603 N.W.2d 590 (Iowa 1999)*

*[State v. Langlet]{.underline}, 238 N.W.2d 330 (Iowa 1979)*

######## Comment

Note: The evidence at issue must also have been admissible at trial.

See [State v. Langlet]{.underline}, 283 N.W.2d 330, 335 (Iowa 1979). The
court

should determine if the evidence would have been admissible.

12/01

## 

## 

## CHAPTER 200

**DAMAGES**

# Damages - Compensatory

[200.1](#a2001) Elements - Personal Injury And Vehicle Damage

[200.2](#a2002) Vehicle Damage - Repairs Only- Repairable To Prior
Condition For Less Than Market Value

[200.3](#a2003) Vehicle Damage - Repairs And Use - Repairable To Prior
Good Condition For Less Than Market Value

[200.4](#a2004) Vehicle Damage - Market Value And Use - Not Repairable
To Prior Good Condition

[200.5](#a2005) Vehicle Damage - Market Value And Use - Total
Destruction - Cost Of Repairs Exceeds Market Value

[200.6](#a2006) Past Medical Expenses

[200.7](#a2007) Future Medical Expenses

[200.8](#a2008) Loss Of Time - Earnings

[200.9](#a2009) Loss Of Future Earning Capacity

[200.10](#a20010) Loss Of Full Mind And Body - Past

[200.11A](#a20011a) Loss Of Full Mind And Body - Future - Actions Filed
On Or Before July 1, 1997

[200.11B](#a20011b) Loss Of Full Mind And Body - Future - Actions Filed
On Or After July 1, 1997

[200.12](#a20012) Physical And Mental Pain And Suffering - Past

[200.13A](#a20013a) Physical And Mental Pain And Suffering - Future -
Actions Filed On Or Before July 1, 1997

[200.13B](#a20013b) Physical And Mental Pain And Suffering - Future -
Actions Filed On Or After July 1, 1997

[200.14](#a20014) Elements - Death - Damages Recovered By Personal
Representatives

[200.15](#a20015) Present Worth Of The Value Of The Estate

[200.16](#a20016) Burial Expenses

[200.17](#a20017) Support - Spouse

[200.18](#a20018) Support - Children

[200.19](#a20019) Services - Spousal Consortium

[200.20](#a20020) Services - Parental Consortium

[200.21](#a20021) Considerations - Loss Of Value Of The Estate - Loss Of
Consortium \[Spousal And Parental\] - Loss Of Support

[200.22](#a20022) Pre-Death Loss Of Time - Earnings

[200.23](#a20023) Pre-Death Medical Expenses

[200.24](#a20024) Pre-Death Physical And Mental Pain And Suffering

[200.25](#a20025) Pre-Death - Loss Of Full Mind And Body

[200.26](#a20026) Elements - Death Of Minor - Damages Recovered By
Personal Representatives

[200.27](#a20027) Present Worth Of Value Of Estate - Minor

[200.28](#a20028) Elements - Death Of A Minor - Rule 8 Claim

[200.29](#a20029) Elements - Injury To A Minor - Rule 8 Claim

[200.30](#a20030) Elements - Injured Parent\'s Claim For Deprived
Child\'s Loss Of Parental Consortium

[200.31](#a20031) Elements - Spousal Consortium - Spouse\'s Damage

[200.32](#a20032) Aggravation Of Pre-Existing Condition

[200.33](#a20033) No Recovery For Second Injury

[200.34](#a20034) Previous Infirm Condition

[200.35A](#a20035a) Definition Of Present Value - Actions Filed On Or
Before July 1, 1997

[200.35B](#a20035b) Definition Of Present Value - Actions Filed On Or
After July 1, 1997

[200.36](#a20036) Mortality Tables - Death Cases

[200.37](#a20037) Mortality Tables - Personal Injury

[200.38](#a20038) Quotient Verdict

[200.39](#a20039) Medical Malpractice - Lost Chance Of Survival -
Definition

[200.40](#a20040) Medical Malpractice - Lost Chance Of Survival

# Damages - Punitive

[210.1](#a2101) Punitive Damages

[210.2](#a2102) Special Interrogatories - Punitive Damages

[210.3](#a2103) Punitive Damages Against A Principal Or Employer

[210.4](#a2104) Definition Of Willful And Wanton

# Damages - Breach Of Contract

[220.1](#a2201) Breach Of Contract/Fraud - Expectation Interest

[220.2](#a2202) Breach Of Contract/Fraud - Reliance Interest

[]{#a2001 .anchor}**200.1 Elements - Personal Injury And Vehicle
Damage.** If you find (injured party) is entitled to recover damages,
you shall consider the following items:

(Enter applicable elements from Instructions 200.2 - 200.13)

The amount you assess for \[physical and mental pain and suffering in
the past and future\] \[future earning capacity\] \[loss of function of
the \[mind\] \[body\] in the past and future\] cannot be measured by any
exact or mathematical standard. You must use your sound judgment based
upon an impartial consideration of the evidence. Your judgment must not
be exercised arbitrarily, or out of sympathy or prejudice, for or
against the parties. The amount you assess for any item of damage must
not exceed the amount caused by a party as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded
under one item of damage to be included in any amount awarded under
another item of damage. \[Similarly, damages awarded to one party shall
not be included in any amount awarded to another party.\]

The amounts, if any, you find for each of the above items will be used
to answer the special verdicts.

10/97

[]{#a2002 .anchor}**200.2 Vehicle Damage - Repairs Only - Repairable To
Prior Condition For Less Than Market Value.** The reasonable cost of
repair of the vehicle.

# Authority

[Long v. McAllister]{.underline}, 319 N.W.2d 256 (Iowa 1982)

[]{#a2003 .anchor}**200.3 Vehicle Damage - Repairs And Use - Repairable
To Prior Good Condition For Less Than Market Value.** The reasonable
cost of repair of the vehicle plus the reasonable value of the use of
the vehicle for the time reasonably required to complete its repair.

# Authority

[Long v. McAllister]{.underline}, 319 N.W.2d 256 (Iowa 1982)

[]{#a2004 .anchor}**200.4 Vehicle Damage - Market Value And Use - Not
Repairable To Prior Good Condition.** The difference between the
reasonable market value of the vehicle immediately before and after the
damage, plus the reasonable value of the use of the vehicle for the time
reasonably required to replace it or return it to use.

# Authority

[Papenheim v. Lovell]{.underline}, 553 N.W.2d 328 (Iowa 1996)

[]{#a2005 .anchor}**200.5 Vehicle Damage - Market Value And Use - Total
Destruction - Cost Of Repairs Exceeds Market Value.** The difference
between the reasonable market value of the vehicle immediately before
and after the damage, plus the reasonable value of the use of the
vehicle for the time reasonably required to obtain a replacement.

# Authority

[Long v. McAllister]{.underline}, 319 N.W.2d 256 (Iowa 1982)

[]{#a2006 .anchor}**200.6 Past Medical Expenses.** The reasonable value
of necessary \[hospital charges\] \[doctor charges\] \[prescriptions\]
\[other medical services\] from the date of injury to the present time.

# Authority

[Worez v. Des Moines City Ry. Co]{.underline}., 175 Iowa 1, 156 N.W. 867
(1916)

[Elzig v. Bales]{.underline}, 135 Iowa 208, 112 N.W. 540 (1907)

[]{#a2007 .anchor}**200.7 Future Medical Expenses.** The present value
of reasonable and necessary \[hospital charges\] \[doctor charges\]
\[prescriptions\] \[other medical services\] which will be incurred in
the future.

**Authority**

[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)

[Zach v. Morningstar]{.underline}, 258 Iowa 1365, 142 N.W.2d 440 (1966)

[]{#a2008 .anchor}**200.8 Loss Of time - Earnings.** The reasonable
value of \[lost wages\] \[time from business\] from the date of injury
to the present time.

# Authority

[Iowa Des Moines National Bank v. Schwerman Trucking Co]{.underline}.,
288 N.W.2d 198 (Iowa 1980)

[Amelsburg v. Lunning]{.underline}, 234 Iowa 852, 14 N.W.2d 680 (1944)

# Comment

Note: If claim for time from business is made, the following paragraph
may be needed:

Loss of time from business is not measured by loss of profits from a
business, but is measured by the value of a person\'s own labor. Profits
represent the gain from an investment in capital or business and the
labor of others, after payment of expenses. You will not consider
evidence of loss of profits, unless the evidence proves the value of
plaintiff\'s services to their business as distinct from the profits of
the business.

[]{#a2009 .anchor}**200.9 Loss Of Future Earning Capacity.** The present
value of loss of future earning capacity. Loss of future earning
capacity is the reduction in the ability to work and earn money
generally, rather than in a particular job.

# Authority

[Bergquist v. Mackay Engines, Inc.]{.underline}, 538 N.W.2d 655 (Iowa
App. 1995)

[Truscheff v. Abell-Howe Company]{.underline}, 239 N.W.2d 116 (Iowa
1976)

[Ehlinger v. State]{.underline}, 237 N.W.2d 784 (Iowa 1976)

# Comment

Note: The following should be given only if evidence of business profits
is admitted:

Future loss of earning capacity is not measured by future loss of
profits from a business, but is measured by the value of a person\'s own
labor. Profits represent the gain from an investment in capital or
business and the labor of others, after payment of expenses. You may
consider evidence of past profits of the business in determining the
plaintiff\'s earning capacity prior to the injury only if the evidence
shows the value of plaintiff\'s services to the business as distinct
from the profits derived from invested capital and the labor of others.

# Authority for Comment

[Iowa Des Moines Nat\'l Bank v. Schwerman Trucking Co]{.underline}., 288
N.W.2d 198 (Iowa 1980)

[]{#a20010 .anchor}**200.10 Loss Of Full Mind And Body - Past.** Loss of
function of the \[mind\] \[body\] from the date of injury to the present
time. Loss of \[mind\] \[body\] is the inability of a particular part of
the \[mind\] \[body\] to function in a normal manner.

**Authority**

*[Brant v Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995)*

*[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)*

[]{#a20011a .anchor}**200.11A Loss Of Full Mind And Body - Future -
Actions Filed On Or Before July 1, 1997.** Future loss of function of
the \[mind\] \[body\].

**Authority**

*[Brant v. Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995)*

*[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)*

**Comment**

*In all actions filed after July 1, 1997, future damages must be*

*adjusted to reflect the present value of the sum. [Iowa
Code]{.underline}*

*Section 624.18 (1A), 668.3(b)*

[]{#a20011b .anchor}**200.11B Loss Of Full Mind And Body - Future
-Actions Filed On Or After July 1, 1997.** The present value of future
loss of function of the \[mind\] \[body\].

**Authority**

*[Iowa Code]{.underline} section 624.18 (2), 668.3(b)*

*[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)*

**Comment**

*In all actions filed after July 1, 1997, future damages must*

*be adjusted to reflect the present value of the sum.
[Iowa]{.underline}*

*[Code]{.underline} section 624.18(2), 668.3(b)*

12/01

[]{#a20012 .anchor}**200.12 Physical And Mental Pain And Suffering -
Past.** Physical and mental pain and suffering from the date of injury
to the present time.

Physical pain and suffering may include, but is not limited to, bodily
suffering or discomfort.

Mental pain and suffering may include, but is not limited to, mental
anguish or loss of enjoyment of life.

# Authority

[Poyzer v. McGraw]{.underline}, 360 N.W.2d 748 (Iowa 1985)

[Holmquist v. Volkswagen of America, Inc]{.underline}., 261 N.W.2d 516
(Iowa App. 1977)

[]{#a20013a .anchor}**200.13A Physical And Mental Pain And Suffering -
Future - Actions Filed On Or Before July 1, 1997**. Future physical and
mental pain and suffering.

**Authority**

*[Brant v. Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995)*

*[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)*

**Comment**

> *In all actions filed after July 1, 1997, future damages must be
> adjusted to reflect the present value of the sum. [Iowa
> Code]{.underline}*
>
> *Section 624.1B (1A), 668.3(b)*

[]{#a20013b .anchor}**200.13B Physical And Mental Pain And Suffering -
Future - Actions Filed On Or After July 1, 1997.** The present value of
future physical and mental pain and suffering.

**Authority**

*[Iowa Code]{.underline} section 624.18 (2), 668.3(b)*

*[Schnebly v. Baker,]{.underline} 217 N.W.2d 708 (Iowa 1974)*

**Comment**

*In all actions filed after July 1, 1997, future damages must be*

*adjusted to reflect the present value of the sum. [Iowa
Code]{.underline}*

*Section 624.18 (2), 668.3(b)*

*12/01*

[]{#a20014 .anchor}**200.14 Elements - Death - Damages Recovered by
Personal Representatives.** If you find (name), as personal
representative of the Estate is entitled to recover, it is your duty to
determine the amount. In doing so you shall consider the following items
in determining an amount which will fully compensate the Estate of
(name) for the \[injuries\] \[damages\] incurred:

(Enter applicable elements from Instructions 200.15 - 200.24)

The amount you assess for \[physical and mental pain and suffering\]
\[present value of consortium\] \[loss of function of body and mind\]
cannot be measured by any exact or mathematical standard. You must use
your sound judgment based upon an impartial consideration of the
evidence. Your judgment must not be exercised arbitrarily, or out of
sympathy or prejudice, for or against the parties. The amount you assess
for any item of damage must not exceed the amount caused by the
defendant(s) as proved by the evidence. A party cannot recover duplicate
damages. Do not allow amounts awarded under one item of damage to be
included in any amount awarded under another item of damage.
\[Similarly, damages awarded to one party shall not be included in any
amount awarded to another party.\]

The amounts, if any, you find for each of the above items will be used
to answer the special verdicts.

[]{#a20015 .anchor}**200.15 Present Worth Of The Value Of The Estate.**
The present value of the additional amounts (decedent) would reasonably
be expected to have accumulated as a result of \[his\] \[her\] own
effort if \[he\] \[she\] had lived out the term of \[his\] \[her\]
natural life.

# Authority

[Iowa Des Moines National Bank v. Schwerman Trucking Co.]{.underline},
288 N.W. 2d 198 (Iowa 1980)

[]{#a20016 .anchor}**200.16 Burial Expenses.** The interest on the
reasonable burial expenses of (decedent) from the time of death until
the time when those expenses would be paid. The amount cannot exceed the
reasonable cost of the burial.

# Authority

[Hurtig v. Bjork]{.underline}, 258 Iowa 155, 138 N.W.2d 62 (1965)

[]{#a20017 .anchor}**200.17 Support - Spouse.** The present value of the
amount of financial support which (decedent) would have contributed to
\[his\] \[her\] spouse, but for \[his\] \[her\] death.

Damages for financial support are limited in time to the shorter of the
spouse\'s or (decedent)\'s normal life expectancy.

# Authority

[Iowa Code]{.underline} section 613.15

[Iowa Code]{.underline} section 633.336

[]{#a20018 .anchor}**200.18 Support - Children**. The present value of
the amount of financial support which (decedent) would have contributed
to (names of children), but for decedent\'s death. Damages for financial
support are limited in time to when \[the child\] \[each child\]
\[reaches age eighteen\] \[marries\] unless you find a child will have a
need for support beyond \[age eighteen\] \[marriage\].

# Authority

[Iowa Code]{.underline} section 613.15

[Iowa Code]{.underline} section 633.336

[]{#a20019 .anchor}**200.19 Services - Spousal Consortium.** The present
value of the services which (decedent) would have performed for \[his\]
\[her\] spouse, but for \[his\] \[her\] death. This is also known as
loss of spousal consortium.

\"Spousal consortium\" is the fellowship of a husband and wife and the
right of each to the benefits of company, cooperation, affection, the
aid of the other in every marital relationship, general usefulness,
industry and attention within the home and family. It does not include
loss of financial support from the injured spouse, nor mental anguish
caused by the spouse\'s death.

Damages for spousal consortium are limited in time to the shorter of the
spouse\'s or (decedent)\'s normal life expectancy.

# Authority

[Iowa Code]{.underline} section 613.15

[Gail v. Clark]{.underline}, 410 N.W.2d 662 (Iowa 1987)

[Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa 1984)

[Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad
Company]{.underline}, 335 N.W.2d 148 (Iowa 1983)

# Comment

Caveat: Predeath loss of services is not an item recoverable by the
Estate. See [Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa 1984)

*Note: The Iowa Civil Jury Instructions refer to \"present value\"*

*in the consortium instructions. Consortium damages may be*

*economic or non-economic or both. In actions filed on or*

*before July 1, 1997, the instructions may need to be modified*

*accordingly. See [Brant v. Bockholt]{.underline}, 532 N.W.2d 801 (Iowa*

*1995). In actions filed after July 1, 1997, future damages must be
adjusted to reflect the present value of the sum. [Iowa
Code]{.underline} section 624.18(1A), 668.3(b)*

12/01

[]{#a20020 .anchor}**200.20 Services - Parental Consortium**. The
present value of the services which (decedent) would have performed for
\[his\] \[her\] children, but for \[his\] \[her\] death. This is also
known as loss of parental consortium.

\"Parental consortium\" is the relationship between parent and child and
the right of the child to the benefits of companionship, comfort,
guidance, affection and aid of the parent in every parental
relationship, general usefulness, industry and attention within the
family. It does not include the loss of financial support from the
injured parent, nor mental anguish caused by the parent\'s death.

A child is not entitled to damages for loss of parental consortium
unless the parent\'s death has caused a significant disruption or
diminution of the parent-child relationship.

Damages for loss of parental consortium are limited in time to the
shorter of the child\'s or (decedent)\'s normal life expectancy.

**Authority**

*[Iowa Code]{.underline} section 613.15*

*[Gail v. Clark]{.underline}, 410 N.W.2d 662 (Iowa 1987)*

*[Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa 1984)*

*[Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf]{.underline}*

*[Railroad Company]{.underline}, 335 N.W.2d 148 (Iowa 1983)*

**Comment**

> *Caveat: Pre-death loss of services is not an item recoverable by the
> Estate. See [Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa
> 1984)*
>
> *Note: The Iowa Civil Jury Instructions refer to \"present value\" in
> the consortium instructions. Consortium damages may be economic or
> non-economic or both. In actions filed on or before July 1, 1997, the
> instructions may need to be modified accordingly. See [Brant v.
> Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995). In actions filed
> after July 1, 1997, future damages must be adjusted to reflect the
> present value of the sum. [Iowa Code]{.underline} section 624.18 (1A),
> 668.3(b)*
>
> 12/01

[]{#a20021 .anchor}**200.21 Considerations - Loss Of Value Of The
Estate - Loss Of Consortium \[Spousal And Parental\] - Loss Of
Support**.

A. If Instruction 200.15 is given, you may want to include the
following:

In determining the present value of the amount (decedent) would have
accumulated, item \_\_\_\_\_\_\_\_ \[Instruction No. \_\_\_\_\_\], you
may consider:

1\. \[His\] \[Her\] life expectancy, health, physical condition, age and
occupation at the time of death.

2\. \[His\] \[Her\] ability to earn money and any amount from income
which would have been used for support of \[his\] \[her\] spouse and
family.

3\. The amount of taxes, both federal and state, which would be payable
out of earnings.

4\. \[His\] \[Her\] habits as to industry, thrift and economy.

5\. The uncertainties of life such as ill health or employment, increase
or decrease of earning capacity as age advances.

6\. All other facts and circumstances bearing on the amount \[he\]
\[she\] would have accumulated.

B. If Instruction 200.17 or 200.18 is given, you may want to include the
following:

In determining the present value of financial support (decedent) would
have provided to \[spouse\] \[children\], item \_\_\_\_\_\_\_\_
\[Instruction No. \_\_\_\_\_\_\], you may consider:

1\. \[His\] \[Her\] age at the time of death.

2\. \[His\] \[Her\] health, strength, character, skills and training.

3\. \[His\] \[Her\] life expectancy \[and that of the spouse\].

4\. \[His\] \[Her\] previous employment and earnings.

5\. \[His\] \[Her\] expectancy for earnings in the future.

6\. The ages of the \[spouse\] \[children\] dependent upon \[him\]
\[her\] for support, and the present and future need for support.

7\. The amount of money out of \[his\] \[her\] income which would have
been available for the support of the \[spouse\] \[children\] after
payment of federal and state taxes.

8\. All other facts and circumstances bearing on the present value of
financial support.

C. If Instruction 200.19 or 200.20 is given, you may want to include the
following:

In determining the present value of the services (decedent) would have
provided as a \[parent\] \[spouse\], item \_\_\_\_\_\_\_, \[Instruction
No. \_\_\_\_\_\_\], you may consider:

1\. The circumstances of \[his\] \[her\] life.

2\. \[His\] \[Her\] age at the time of \[his\] \[her\] death.

3\. \[His\] \[Her\] health, strength, character, life expectancy \[and
that of the spouse\].

4\. \[His\] \[Her\] capacities, abilities and efficiencies in performing
duties as a \[spouse\] \[parent\].

5\. \[His\] \[Her\] skills and abilities in providing instruction,
guidance, advice and assistance to the \[spouse\] \[children\].

6\. \[Spouse\'s\] \[Children\'s\] respective needs.

7\. All other facts and circumstances bearing on the present value of
services.

# Authority

[Iowa Des Moines National Bank v. Schwerman Trucking Co]{.underline}.,
288 N.W.2d 198 (Iowa 1980)

[Ehlinger v. State]{.underline}, 237 N.W.2d 784 (Iowa 1976)

[Schmitt v. Jenkins Truck Lines, Inc.,]{.underline} 170 N.W.2d 632 (Iowa
1969)

[]{#a20022 .anchor}**200.22 Pre-Death Loss Of Time - Earnings.** The
reasonable value of \[lost wages\] \[time from business\] from the date
of injury to the time of death.

# Authority

[Amelsburg v. Lunning]{.underline}, 234 Iowa 852, 14 N.W.2d 680 (Iowa
1944)

# Comment

Note: The following should be given only if the evidence shows a loss of
business profits:

Time from business is not measured by loss of profits from a business,
but is measured by the value of a person\'s own labor. Profits represent
the gain from an investment in capital or business and the labor of
others, after payment of expenses. You will not consider evidence of
loss of profits, unless the evidence proves the value of plaintiff\'s
services to \[his\] \[her\] business as distinct from the profits of the
business.

[]{#a20023 .anchor}**200.23 Pre-Death Medical Expenses.** The reasonable
value of necessary \[hospital charges\] \[doctor charges\]
\[prescriptions\] \[other medical services\] from the date of injury to
the time of death.

# Authority

[Muldowney v. Illinois Central Ry. Co.]{.underline}, 36 Iowa 462 (Iowa
1873)

[]{#a20024 .anchor}**200.24 Pre-Death Physical And Mental Pain And
Suffering.** Physical and mental pain and suffering from the date of
injury to the date of death.

Physical pain and suffering may include, but is not limited to, bodily
suffering or discomfort.

Mental pain and suffering may include, but is not limited to, mental
anguish or loss of enjoyment of life.

# Authority

[Poyzer v. McGraw]{.underline}, 360 N.W.2d 748 (Iowa 1985)

[Lang v. City of Des Moines]{.underline}, 294 N.W.2d 557 (Iowa 1980)

[Holmquist v. Volkswagen of America, Inc.,]{.underline} 261 N.W.2d 516
(Iowa App. 1977)

[]{#a20025 .anchor}**200.25 Pre-Death - Loss Of Full Mind And Body.**
Loss of function of the \[mind\] \[body\] from the date of injury to the
date of death.

# Authority

[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)

[]{#a20026 .anchor}**200.26 Elements - Death Of Minor - Damages
Recovered By Personal Representative.** If you find (name) as personal
representative of the Estate of (decedent) is entitled to recover
damages, it is your duty to determine the amount. In doing so you shall
consider the following items:

(Enter applicable items from 200.24, 200.25 or 200.27)

The amount you assess for \[physical and mental pain and suffering\]
\[loss of function of mind and body\] cannot be measured by any exact or
mathematical standard. You must use your sound judgment based upon an
impartial consideration of the evidence. Your judgment must not be
exercised arbitrarily, or out of sympathy or prejudice, for or against
the parties. The amount you assess for any item of damage must not
exceed the amount caused by the defendant(s) as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded
under one item of damage to be included in any amount awarded under
another item of damage. \[Similarly, damages awarded to one party shall
not be included in any amount awarded to another party.\]

The amounts, if any, you find for each of the above items will be used
to answer the special verdicts.

[]{#a20027 .anchor}**200.27 Present Worth Of Value Of Estate - Minor.**
The present value of additional amounts (minor) would reasonably be
expected to have accumulated as a result of \[his\] \[her\] own effort
from the date \[he\] \[she\] would have \[reached age eighteen\]
\[married\] until \[he\] \[she\] had lived out the terms of \[his\]
\[her\] life.

In determining this amount, you may consider:

1\. \[His\] \[Her\] life expectancy.

2\. \[His\] \[Her\] health, physical and mental condition.

3\. \[His\] \[Her\] habits as to industry, thrift and economy.

4\. \[His\] \[Her\] interest in school.

5\. \[His\] \[Her\] grades and attendance in school.

6\. The occupation of \[his\] \[her\] parents.

7\. The uncertainties of life such as ill health, unemployment,
increased or decreased earning capacity as age advances.

8\. The amount of taxes, both federal and state, which would be payable
out of earnings.

9\. All other facts and circumstances bearing on the amount \[he\]
\[she\] might have accumulated.

[]{#a20028 .anchor}**200.28 Elements - Death Of A Minor - Rule 1.206
Claim.** If you find (father and/or mother) is entitled to recover
damages as the result of the death of (minor), it is your duty to
determine the amount. In doing so you shall consider the following
items:

1\. The reasonable value of the past loss of services, which include
loss of companionship and society of the child, from the date of the
death to \[the present time\] \[the date the child would have \[reached
age eighteen years\] \[married\]\] minus the probable cost of the
child\'s board and maintenance during that time period.

2\. The present value of the future loss of services, which include loss
of companionship and society of the child from the present time until
the child would have \[reached age eighteen years\] \[married\] minus
the present value of the probable cost of child support and maintenance
during that same time period.

3\. The interest on the reasonable burial expenses of the child from the
time of death until the time those expenses would normally be paid. The
amount cannot exceed the reasonable cost of the burial.

4\. The reasonable value of necessary \[hospital charges\] \[doctor
charges\] \[prescriptions\] \[other medical services\] from the date of
injury to the time of death.

Items 1 and 2 include \[loss of earnings of child\] \[the economic or
monetary value of the child\'s labor where the child is not employed\],
as well as the parent\'s right to the intangible benefits of
companionship, cooperation and affection of the child. They do not
include the parent\'s mental anguish caused by the child\'s death.

In determining loss of companionship and society, you may consider the
circumstances of the life of the child including:

1\. The child\'s age, health, strength, intelligence, character,
interests and personality.

2\. Activities in the household and community.

3\. All other facts and circumstances bearing on the issue.

The amount you assess for loss of services in the past and future cannot
be measured by any exact or mathematical standard. You must use your
sound judgment based upon an impartial consideration of the evidence.
Your judgment must not be exercised arbitrarily, or out of sympathy or
prejudice, for or against the parties. The amount you assess for any
item of damages must not exceed the amount caused by the defendant(s) as
proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded
under one item of damage to be included in any amount awarded under
another item of damage. \[Similarly, damages awarded to one party shall
not be included in any amount awarded to another party.\]

The amounts, if any, you find for each of the above items will be used
to answer the special verdicts.

# Authority

[Gookin v. Norris]{.underline}, 261 N.W.2d 692 (Iowa 1978)

[Wardlow v. City of Keokuk]{.underline}, 190 N.W.2d 439 (Iowa 1971)

[Iowa R. Civ. P. 1.206]{.underline}

**Comment**

Caveat: Predeath loss of services is not an item recoverable by the
Estate. See [Madison v. Colby]{.underline}, 348 N.W. 2d 202 (Iowa 1984).

*Note: The Iowa Civil Jury Instructions refer to \"present value\" in
the consortium instructions. Consortium damages may be economic or
non-economic or both. In actions filed on or before July l1, 1997, the
instructions may need to be modified accordingly. See [Brant v.
Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995). In actions filed
after July 1, 1997 future damages must be adjusted to reflect the
present value of the sum. [Iowa Code]{.underline} section 624.18 (1A),
668.3(b).*

12/01

[]{#a20029 .anchor}**200.29 Elements - Injury To A Minor - Rule 1.206
Claim.** If you find (father and/or mother) is entitled to recover for
damage sustained by \[him\] \[her\] as the result of the injury to
(minor), it is your duty to determine the amount. In doing so you shall
consider the following items:

> 1\. The reasonable value of the past loss of services, which include
> loss of companionship and society of the child, from the date of the
> child\'s injury to \[the present time\] \[the date the child \[reaches
> age eighteen years\] \[marries\]\], minus the probable cost of the
> child\'s board and maintenance during that time period.
>
> 2\. The present value of the future loss of services, which includes
> loss of companionship and society of the child, from the present time
> until the child \[reaches age eighteen years\] \[marries\] minus the
> present value of the probable cost of child support and maintenance
> during that same time period.
>
> 3\. The reasonable value of \[hospital charges\] \[doctor charges\]
> \[prescriptions\] \[other medical services\] from the date of injury
> to the present time.
>
> 4\. The present value of reasonable and necessary \[hospital charges\]
> \[doctor charges\] \[prescriptions\] \[other medical services\] which
> will be incurred for the child\'s injuries from the present time until
> the child \[reaches age eighteen years\] \[marries\].

Items 1 and 2 include \[loss of earnings of the child\] \[the economic
or financial value of the child\'s labor where the child is not
employed\] as well as the parents right to the intangible benefits of
companionship, cooperation and affection of the child. They do not
include mental anguish by the parent caused by the injury to the child.

In determining loss of companionship and society, you may consider the
circumstances of the life of the child including:

> 1\. The child\'s age, health, strength, intelligence, character,
> interests and personality.

2\. Activities in the household and community.

3\. All other facts and circumstances bearing on the issue.

The amounts, if any, you find for each of the above items will be used
to answer the special verdicts.

**Authority**

*[Gookin v. Norris]{.underline}, 261 N.W.2d 692 (Iowa 1978)*

*[Wardlow v. City of Keokuk,]{.underline} 190 N.W.2d 439 (Iowa 1971)*

*[Iowa R. Civ. P. 1.206]{.underline}*

**Comment**

> *Caveat: Pre-death loss of services is not an item recoverable by the
> Estate. See [Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa
> 1984).*
>
> *Note: The Iowa Civil Jury Instructions refer to \"present value\" in
> the consortium instructions. Consortium damages may be economic or
> non-economic or both. In actions filed on or before July 1, 1997, the
> instructions may need to be modified accordingly. See [Brant v.
> Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995). In actions filed
> after July 1, 1997, future damages must be adjusted to reflect the
> present value of the sum. [Iowa Code]{.underline} section 624.18 (1A),
> 668.3 (b).*

[]{#a20030 .anchor}**200.30 Elements - Injured Parent\'s Claim For
Deprived Child\'s Loss Of Parental Consortium.** \"Parental consortium\"
is the relationship between parent and child and the right of the child
to the benefits of companionship, comfort, guidance, affection, the aid
of the parent in every parental relation, general usefulness, industry
and attention within the family. It does not include the loss of
financial support from the injured parent, nor mental anguish caused by
the parent\'s injury.

If you find, (parent) as \[parent and next friend\] \[guardian\] of
(child) is entitled to recover damages on behalf of the child, it is
your duty to determine the amount. In doing so you shall consider the
following items;

> 1\. The reasonable value of loss of parental consortium which (child)
> (children) would otherwise have received from the date of injury until
> the present time.
>
> 2\. The present value of loss of parental consortium which (child)
> (children) would otherwise have received in the future.

A child is not entitled to damages for loss of parental consortium
unless the injury to the parent has caused a significant disruption or
diminution of the parent-child relationship. Damages for loss of
parental consortium are limited in time to the shorter of the child\' or
parent\'s normal life expectancy.

In determining the value for loss of parental consortium, you may
consider:

1\. The circumstances of the injured parent\'s life.

2\. (Parent)\'s and (child)\'s ages at the time of (parent\')\'s injury.

> 3\. The health, strength, character and life expectancy of the injured
> parent and child.
>
> 4\. The injured parent\'s capabilities and efficiencies in performing
> the duties as a parent.
>
> 5\. The injured parent\'s skills and abilities in providing
> instruction, guidance, advice and assistance to the child.

6\. The children\'s needs.

7\. All other facts and circumstances bearing on the issue.

The amount you assess for loss of parental consortium \[past\]
\[present\] \[future\] cannot be measured by any exact or mathematical
standard. You must use your sound judgment based upon an impartial
consideration of the evidence. Your judgment must not be exercised
arbitrarily, or out of sympathy or prejudice, for or against the
parties. The amount you assess for any item of damage must not exceed
the amount caused by the defendant(s) as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded
under one item of damage to be included in any amount awarded under
another item of damage. \[Similarly, damages awarded to one party shall
not be included in any amount awarded to another party.\]

The amounts, if any, you find for each of the above items will be used
to answer the special verdicts.

**Authority**

> *[Audubon-Exira Ready Mix, Inc v. Illinois Central Gulf
> Railroad]{.underline} [Company]{.underline}, 335N.W.2d 148 (Iowa
> 1983)*

*[Weitl v. Moes]{.underline}, 311 N.W.2d 259 (Iowa 1981)*

**Comment**

> *Caveat: Pre-death loss of services is not an item recoverable by the
> Estate. See [Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa
> 1984)*
>
> *Note: The Iowa Civil Jury Instructions refer to \"present value\" in
> the consortium instructions. Consortium damages may be economic or
> non-economic or both. In actions filed on or before July 1, 1997, the
> instructions may need to be modified accordingly. See [Brant v.
> Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995). In actions filed
> after July 1, 1997, future damages must be adjusted to reflect the
> present value of the sum. [Iowa Code]{.underline} section 624.18 (1A),
> 668.3 (b).*

[]{#a20031 .anchor}**200.31 Elements - Spousal Consortium - Spouse\'s
Damage**. \"Spousal consortium\" is the fellowship of a husband and wife
and the right of each other to the benefits of company, cooperation,
affection, the aid of the other in every marital relationship, general
usefulness, industry and attention within the home and family. It does
not include loss of financial support from the injured spouse, nor
mental anguish caused by the spouse\'s \[injury\] \[death\].

If you find (claimant spouse) is entitled to recover damages, it is your
duty to determine the amount. In doing so, you shall consider the
following items:

> 1\. The reasonable value of loss of spousal consortium which (claimant
> spouse) would otherwise have received from the date of injury until
> \[the present time\] \[death\].
>
> 2\. The present value of loss of spousal consortium which (claimant
> spouse) would otherwise have received in the future.

Damages for loss of spousal consortium are limited in time to the
shorter of the spouse\'s or (decedent)\'s normal life expectancy.

In determining the value for loss of spousal consortium you may
consider:

1\. The circumstances of (injured spouse)\'s life.

> 2\. (Injured spouse)\'s and (claimant)\'s ages at the time of (injured
> spouse)\'s injury.
>
> 3\. (Injured spouse)\'s health, strength, character and life
> expectancy.
>
> 4\. (Injured spouse)\'s capabilities and efficiencies in performing
> the duties of a spouse.
>
> 5\. (Injured spouse)\'s skills and abilities in providing
> instructions, guidance, advice and assistance.

6\. The (claimant spouse)\'s needs.

7\. All other facts and circumstances bearing on this issue.

The amount you assess for loss of spousal consortium \[past\]
\[present\] \[future\] cannot be measured by any exact or mathematical
standard. You must use your sound judgment based upon an impartial
consideration of the evidence. Your judgment must not be exercised
arbitrarily, or out of sympathy or prejudice, for or against the
parties. The amount you assess for any item of damage must not exceed
the amount caused by the defendant(s) as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded
under one item of damage to be included in any amount awarded under
another item of damage. \[Similarly, damages awarded to one party shall
not be included in any amount awarded to another party.\]

The amounts , if any, you find for each of the above items will be used
to answer the special verdicts.

**Authority**

*[Gail v. Clark]{.underline}, 410 N.W.2d 662 (Iowa 1987)*

*[Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa 1984)*

> *[Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad
> Company]{.underline}, 335 N.W.2d 148 (Iowa 1983)*

*[Fuller v. Buhrow]{.underline}, 292 N.W.2d 672 (Iowa 1980)*

*[Acuff v. Schmit]{.underline}, 248 Iowa 272, 78 N.W.2d 480 (1956)*

**Comments**

> *Caveat: Pre-death loss of services is not an item recoverable by the
> Estate. See [Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa
> 1984).*
>
> *Note: The Iowa Civil Jury Instructions refer to \"present value\" in
> the consortium instructions. Consortium damages may be economic or
> non-economic or both. In actions filed on or before July 1, 1997, the
> instructions may need to be modified accordingly. See [Brant v.
> Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995). In actions filed
> after July 1, 1997, future damages must be adjusted to reflect the
> present value of the sum. [Iowa Code]{.underline} section 624.18 (1A),
> 668.3(b)*
>
> 12/01

[]{#a20032 .anchor}**200.32 Aggravation of Pre-Existing Condition.** If
you find (plaintiff) had a (describe condition) before this incident and
this condition was \[aggravated\] \[made active\] by this incident
causing \[further suffering\] \[disability\] then \[he\] \[she\] is
entitled to recover damages caused by the aggravation. \[He\] \[She\] is
not entitled to recover for any physical ailment or disability which
existed before this incident or for any injuries or damages which \[he\]
\[she\] now has which were not caused by the defendant\'s actions.

# Authority

*[Becker v. D & E Distributing Company]{.underline}, 247 N.W.2d 727
(Iowa 1976)*

# 

# Comment

> *Note: An exception may exist to the general rule stated above if the
> pre-existing condition was asymptomatic before the incident and
> plaintiff has proven that apportionment is not possible. [Becker v. D
> & E Distributing Company]{.underline}, 247 N.W.2d 727 (Iowa 1976)*
>
> *Note: In cases involving both aggravation and eggshell injuries, see
> [Waits v]{.underline} [United Fire &]{.underline} [Casualty
> Co]{.underline}., 572 NW2d 565, 578 (Iowa 1998)*

6/98

[]{#a20033 .anchor}**200.33 No Recovery For Second Injury.** If you find
(plaintiff) was injured by another act after this incident, \[he\]
\[she\] cannot recover for any later \[injury\] \[aggravation of
injury\] not caused by this incident.

# Authority

*[Becker v. D & E Distributing Company]{.underline}, 247 N.W.2d 727
(Iowa 1976)*

> *[Waterloo Sav. Bank v. Waterloo, Cedar Falls & Northern
> R.R.,]{.underline} 244 Iowa 1364, 60 N.W.2d 572 (1953)*

### 

### Comment

> *Note: The above states the general rule. Exceptions may exist if
> there is an indivisible injury caused by independent acts or the
> subsequent injury is a sequela of the first. In these circumstances,
> special instructions would apply. [Treanor v. B.P.E. Leasing,
> Inc.,]{.underline} 158 N.W.2d 4, 6 (Iowa 1968); [Ruud v.
> Grimm]{.underline}, 252 Iowa 1266, 1272, 110 N.W.2d 321, 324 (1961).
> The committee expresses no view as to whether these exceptions apply
> when the doctrine of comparative fault is involved.*

**6/91**

[]{#a20034 .anchor}**200.34 Previous Infirm Condition.** If (plaintiff)
had (describe condition) making \[him\] \[her\] more susceptible to
injury than a person in normal health, then the defendant is responsible
for all injuries and damages which are experienced by (plaintiff)
proximately caused by defendant\'s actions, even though the injuries
claimed produce a greater injury than those which might have been
experienced by a normal person under the same circumstances.

# Authority

[Benn v. Thomas]{.underline}, 512 N.W.2d 537, 538-40 (Iowa 1994)

[Becker v. D & E Distributing Company]{.underline}, 247 N.W.2d 727 (Iowa
1976)

**Comment**

Note: Consider appropriateness of giving his instruction in addition to
Iowa Civil Jury Instruction 700.3 Proximate Cause where \"Eggshell
Plaintiff Rule\" applies.

Note: In cases involving both aggravation and eggshell injuries, see
[Waits v United Fire &]{.underline} [Casualty Co]{.underline}., 572 NW2d
565, 578 (Iowa 1998)

6/98

[]{#a20035a .anchor}**200.35A Definition Of Present Value - Actions
Filed On Or Before July 1, 1997.** Future damages for loss of \[earning
capacity\] \[medical expenses\] \[other economic losses\] must be
reduced to present value. \"Present value\" is a sum of money paid now
in advance which, together with interest earned at a reasonable rate of
return, will compensate the plaintiff for future economic losses.

**Authority**

*[Brant v. Bockholt]{.underline}, 532 N.W.2d 801 (Iowa 1995)*

*[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)*

*[In Re Millard Estate]{.underline}, 251 Iowa 1282, 105 N.W.2d 95
(1960)*

**Comment**

> *In actions filed after July 1, 1997, damages for loss of services,
> companionship, society, or consortium will be barred of diminished in
> proportion to the amount of fault attributable to the person whose
> injury or death provided the basis for the damages. [Iowa
> Code]{.underline} section 668.3(1)(b), overturning [Schwennen v.
> Abell]{.underline}, 430 N.W.2d 98 (Iowa 1988).*

12/01

[]{#a20035b .anchor}**200.35B Definition Of Present Value - Actions
Filed On Or After July 1, 1997.** Future damages must be reduced to
present value. \"Present value\" is a sum of money paid now in advance
which, together with interest earned at a reasonable rate of return,
will compensate the plaintiff for future losses.

# Authority

[Iowa Code]{.underline} section 624.18 (2), 668.3(b)

[Schnebly v. Baker]{.underline}, 217 N.W.2d 708 (Iowa 1974)

[In Re Millard Estate]{.underline}, 251 Iowa 1282, 105 N.W.2d 95 (1960)

10/97

[]{#a20036 .anchor}**200.36 Mortality Tables - Death Cases.** Standard
Mortality Table indicates the normal life expectancy of people who are
the same age as (decedent) is \_\_\_\_\_\_ years. The statistics from a
Standard Mortality Table are not conclusive. You may use this
information, together with all the other evidence about (decedent)\'s
prior health, habits, occupation, and lifestyle, when deciding issues of
future damages.

# Authority

[Newman v. Blom]{.underline}, 249 Iowa 836, 89 N.W.2d 349 (1958)

[Peterson v. Brackey]{.underline}, 143 Iowa 75, 119 N.W. 967 (1909)

[]{#a20037 .anchor}**200.37 Mortality Tables - Personal Injury.** A
Standard Mortality Table indicates the normal life expectancy of people
who are the same age as (name) is \_\_\_\_\_\_ years. The statistics
from a Standard Mortality Table are not conclusive. You may use this
information, together with all the other evidence, about (name)\'s
health, habits, occupation, and lifestyle, when deciding issues of
future damages.

# Authority

[Ehlinger v. State]{.underline}, 237 N.W.2d 784 (Iowa 1976)

[Ruud v. Grimm,]{.underline} 252 Iowa 1266, 110 N.W.2d 321 (1961)

[Newman v. Blom]{.underline}, 249 Iowa 836, 89 N.W.2d 349 (1958)

[]{#a20038 .anchor}**200.38 Quotient Verdict.** In arriving at an item
of damage \[or any percentage of fault\] you cannot arrive at a figure
by taking down the estimate of each juror as to an item of damage \[or a
percentage of fault\], and agreeing in advance that the average of those
estimates shall be your item of damage \[or percentage of fault\].

# Authority

[Moose v. Rich]{.underline}, 253 N.W.2d 565 (Iowa 1977)

[Sheker v. Jensen]{.underline}, 241 Iowa 583, 41 N.W.2d 679 (1950)

[Manna v. McIntosh]{.underline}, 519 N.W.2d 815 (Iowa App. 1994)

[]{#a20039 .anchor}**200.39 Medical Malpractice - Lost Chance Of
Survival -- Definition.**

Lost chance of survival means reduction in the chance to survive the
underlying disease because plaintiff failed to receive earlier
treatment. Damages recoverable are limited to the value of this loss of
chance. This is measured by the difference between the chance of
survival if treatment had been given at the earlier time, and the chance
of survival at the present time. Plaintiff may not recover for harm
caused by the pre-existing condition to which defendant\'s negligence
did not contribute.

# Authority

[Wendland v Sparks]{.underline}, 574 NW2d 372 (Iowa 1998)

[Sanders v Ghrist]{.underline}, 421 NW2d 520 (Iowa 1998)

[DeBurkarte v Louvar,]{.underline} 393 NW2d 131 (Iowa 1998)

6/98

[]{#a20040 .anchor}**200.40 Medical Malpractice - Lost Chance Of
Survival**

If you find from the evidence that \[defendant\] was negligent in the
treatment of \[plaintiff\] and that this negligence was a substantial
factor in reducing \[plaintiff\'s\] chance of survival, then you will
award such damages as will fairly compensate \[plaintiff\] for this lost
chance of survival.

# Authority

[Wendland v Sparks]{.underline}, 574 NW2d 372 (Iowa 1998)

[Sanders v Ghrist]{.underline}, 421 NW2d 520 (Iowa 1998)

[DeBurkarte v Louvar]{.underline}, 393 NW2d 131 (Iowa 1998)

# Comment

The instruction is drafted for use in a death case. There may be other
situations in which the concept is applicable as noted in [Wendland v
Sparks]{.underline}, 574 NW2d 372 (Iowa 1998).

6/98

[]{#a2101 .anchor}**210.1 Punitive Damages.** Punitive damages may be
awarded if the plaintiff has proven by a preponderance of clear,
convincing and satisfactory evidence the defendant\'s conduct
constituted a willful and wanton disregard for the rights or safety of
another and caused actual damage to the plaintiff.

Punitive damages are not intended to compensate for injury but are
allowed to punish and discourage the defendant and others from like
conduct in the future.

There is no exact rule to determine the amount of punitive damages, if
any, you should award. In fixing the amount of punitive damages, you may
consider all the evidence including:

1\. The nature of defendant\'s conduct.

2\. The amount of punitive damages which will punish and discourage like
conduct by the defendant in view of \[his\] \[her\] \[its\] financial
condition.

3\. The plaintiff\'s actual damages.

# Authority

[Iowa Code]{.underline} section 668A.1

[Larson v. Great West Cas. Co.]{.underline}, 482 N.W.2d 170 (Iowa App.
1992)

[Suss v. Schammel]{.underline}, 375 N.W.2d 252 (Iowa 1985)

[Nelson v. Restaurants of Iowa, Inc]{.underline}., 338 N.W.2d 881 (Iowa
1983)

# Comment

Note: See Iowa Civil Jury Instruction 100.19 for definition of clear,
convincing and satisfactory evidence.

[]{#a2102 .anchor}**210.2 Special Interrogatories - Punitive Damages**.

Question No. 1: Do you find by a preponderance of clear, convincing and
satisfactory evidence the conduct of the defendant constituted willful
and wanton disregard for the rights or safety of another?

Answer \"Yes\" or \"No\"

ANSWER:

\[If your answer to Question No. 1 is \"No\" do not answer Question Nos.
2 and 3\]

Question No. 2: What amount of punitive damages, if any, do you award?

ANSWER:

\[If your answer to Question No. 2 is \"None\" do not answer Question
No. 3\]

Question No. 3: Was the conduct of the defendant directed specifically
at (name)?

Answer \"Yes\" or \"No\"

ANSWER:

# Authority

[Iowa Code]{.underline} section 668A.1

# Comment

Note: Where punitive damage claims are submitted against multiple
defendants, the special interrogatories (Question Nos. 1-3) must be
submitted for each defendant.

Note: When the issue of punitive damages against a principal or employer
is submitted to the jury, add the following special interrogatory:

Question No. 4: Is (principal or employer) liable for punitive damages?

Answer \"Yes\" or \"No\"

ANSWER:

\[If your answer to Question No. 4 is \"No\" do not answer Question No.
5\]

Question No. 5: What amount of punitive damages, if any, do you award
against (name of principal or employer)?

ANSWER:

[]{#a2103 .anchor}**210.3 Punitive Damages Against A Principal Or
Employer.** (Principal or employer) is liable for the punitive damages
by reason of the acts of (employee or agent) if one of the following
occurred:

1\. The \[principal or employer\] \[managerial agent of (principal or
employer)\] authorized the act and the way it was done; or

2\. The \[agent\] \[employee\] was unfit and the \[principal\] or
employer\] \[managerial agent of (principal or employer)\] was reckless
in employing or retaining him; or

3\. The \[agent\] \[employee\] was employed in a managerial capacity and
was acting in the scope of employment; or

4\. The \[principal or employer\] \[managerial agent of (principal or
employer)\] ratified or approved the act.

# Authority

[Bethards v. Shivvers, Incorporated]{.underline}, 355 N.W.2d 39 (Iowa
1984)

[Briner v. Hyslop]{.underline}, 337 N.W.2d 858 (Iowa 1983)

Restatement (Second) of Torts, section 909 (1979)

# Comment

Note: Use only the alternatives which are supported by the evidence.

[]{#a2104 .anchor}**210.4 Willful and Wanton - Defined.** Conduct is
willful and wanton when a person intentionally does an act of an
unreasonable character in disregard of a known or obvious risk that is
so great as to make it highly probable that harm will follow.

# Authority

[Fell v. Kewanee Farm Equipment Co]{.underline}., 457 N.W.2d 911 (Iowa
1990)

[Kosmacek v. Farm Service Coop of Persia]{.underline}, 485 N.W.2d 99
(Iowa App. 1992)

[]{#a2201 .anchor}**220.1 Breach Of Contract/Fraud-Expectation
Interest.** The measure of damages for \[breach of a contract\]
\[fraud\] is an amount that would place (plaintiff) in as good a
position as \[he\] \[she\] would have enjoyed if the \[contract had been
performed\] \[defendant\'s representation had been true\].

The damages you award for \[breach of contract\] \[fraud\] must be
foreseeable or have been reasonably foreseen at the time the \[parties
entered into the contract\] \[representation was made\].

In your consideration of the damages, you may consider the following:

(List the items of damage claimed and allowable according to the facts
of the case.)

# Authority

[Yost v. City of Council Bluffs]{.underline}, 471 N.W. 2nd 836 (Iowa
1991)

[Air Host Cedar Rapids v. Airport Commission]{.underline}, 464 N.W. 2nd
450 (Iowa 1990)

[Hoffman v. National Medical Enterprises, Inc]{.underline}**.,** 442
N.W. 2nd 123 (Iowa 1989)

[Potter v . Oster]{.underline}, 426 N.W. 2nd 148 (Iowa 1988)

[Ritam Corporation v. Applied Concepts, Inc]{.underline}., 387 N.W. 2nd
619 (Iowa App. 1986)

# Comment

Note: Instructions 220.1 and 220.2 are alternative instructions. The
proper instruction in a given case will depend on the evidence.

[]{#a2202 .anchor}**220.2 Breach Of Contract/Fraud-Reliance Interest.**
The measure of damages for \[breach of a contract\] \[fraud\] is an
amount that will reimburse (plaintiff) for the loss caused by \[his\]
\[her\] reliance on the \[contract\] \[defendant\'s misrepresentation or
omission\] and will place \[him\] \[her\] in as good a position as if
the \[breach \[representation\] had not been made.

The damages you award for \[breach of contract\] \[fraud\] must be
foreseeable or have been reasonably foreseen at the time the \[parties
entered into the contract\] \[representation was made\].

In your consideration of the damages, you may consider the following:

(List the items of damage claimed and allowable according to the facts
of the case.)

# Authority

[Potter v. Oster]{.underline}, 426 N.W. 2nd 148 (Iowa 1988)

[Cornell v. Wunchel]{.underline}, 408 N.W. 2nd (Iowa 1987)

# Comment

Note: Instructions 220.1 and 220.2 are alternative instructions. The
proper instruction in a given case will depend on the evidence.

[]{#CH300 .anchor}**CHAPTER 300**

# VERDICTS

[300.1](#a3001) Return Of Verdict - Forms Of Verdict

[300.2](#a3002) Single Plaintiff - Single Defendant - Cases Not Governed
By Chapter 668 - Plaintiff's Verdict

[300.3](#a3003) Single Plaintiff - Single Defendant - Cases Not Governed
By Chapter 668 - Defendant's Verdict

[300.4](#a3004) Verdict - Single Plaintiff - Single Defendant - Cases
Governed By Chapter 668

[300.5](#a3005) Verdict - Single Plaintiff, Single Defendant - Claim and
Counterclaim -

Cases Governed By Chapter 668

[300.6](#a3006) Verdict - Single Plaintiff - Defendant(s), Third Party
Defendant(s), Person(s),

Who Have Been Released - Cases Governed By Chapter 668

[300.7](#a3007) Death Of Parents - Loss Of Spousal Consortium To The
Surviving Spouse - Loss

Of Parental Consortium To A Minor - Allocation Of Damage - Damages
Recoverable By Personal Representative

[300.8](#a3008) Collateral Source - Comparative Fault.

[300.9](#a3009) Verdict - Product Liability - State of the Art

[]{#a3001 .anchor}**300.1 Return Of Verdict - Forms Of Verdict.** I am
giving you \_\_\_\_\_ verdict forms \[and special interrogatories\].
During the first six hours of deliberations, excluding meals and
recesses outside your jury room, your decision must be unanimous. If you
all agree, the verdict \[and interrogatories\] must be signed by your
foreman or forewoman.

After deliberating for six hours from \_\_\_\_\_ o\'clock \_\_\_.m.
excluding meals or recesses outside your jury room, then it is necessary
that only (seven) (six)\* of you agree upon the answers to the
questions. In that case, the verdict \[and interrogatories\] must be
signed by all (seven) (six)\* jurors who agree.

When you have agreed upon the verdict \[and interrogatories\] and
appropriately signed it, tell the Court Attendant.

# Comment

Note: \*Use if a juror has been excused during the trial.

[]{#a3002 .anchor}**300.2 Single Plaintiff - Single Defendant - Cases
Not Governed by Chapter 668 - Plaintiff's verdict.**

\[Use caption of case if desired\]

VERDICT NO.\_\_\_\_\_\_

We, the Jury, find in favor of the plaintiff and fix the amount of his
recovery against the defendant at dollars.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FOREMAN OR FOREWOMAN\*

\*To be signed only if verdict is unanimous.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\*

\*\*To be signed by the jurors agreeing thereto after six hours or more
of deliberation.

[]{#a3003 .anchor}**300.3 Single Plaintiff - Single Defendant - Cases
Not Governed By Chapter 668 - Defendant\'s Verdict**.

\[Use caption of case if desired\]

VERDICT NO.

We, the Jury, find in favor of the defendant and against the plaintiff.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FOREMAN OR FOREWOMAN\*

\*To be signed only if verdict is unanimous.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\*

\*\*To be signed by the jurors agreeing to it after six hours or more of
deliberation.

12/86

[]{#a3004 .anchor}**300.4 Verdict - Single Plaintiff - Single
Defendant - Cases Governed By Chapter 668.**

\[Use caption of case if desired\]

VERDICT NO.\_\_\_\_\_\_\_

We find the following verdict on the questions submitted to us:

Question No. 1: Was the defendant at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer any further questions.\]

Question No. 2: Was the fault of the defendant a proximate cause of any
item of damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no\", do not answer any further questions.\]

Question No. 3: Was the plaintiff at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer Questions No. 4 or 5.\]

Question No. 4: Was the plaintiff\'s fault a proximate cause of any
damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer Question No. 5.\]

Question No. 5: Using 100% as the total combined fault of plaintiff and
defendant which was a proximate cause of plaintiff\'s damage, what
percentage of such combined fault do you assign to the plaintiff and
what percentage of such combined fault do you assign to the defendant?

ANSWER: Plaintiff \_\_\_\_\_\_\_\_\_\_\_\_%

Defendant \_\_\_\_\_\_\_\_\_%

TOTAL 100%

\[If you find plaintiff to be more than 50% at fault, do not answer
Question No. 6.\]

Question No. 6: State the amount of damages sustained by the plaintiff
proximately caused by defendant\'s fault as to each of the following
items of damage. Do not take into consideration any reduction of damages
due to plaintiff\'s fault. If the plaintiff has failed to prove any item
of damage, or has failed to prove that any item of damage was
proximately caused by defendant\'s fault, enter 0 for that item.

\*1. Past medical expenses \$ \_\_\_\_\_\_\_

2\. Future medical expenses \$ \_\_\_\_\_\_\_

3\. Past pain and suffering \$ \_\_\_\_\_\_\_

4\. Future pain and suffering \$ \_\_\_\_\_\_\_

TOTAL (add the separate items of damage) \$ \_\_\_\_\_\_\_

# Authority

[Iowa Code]{.underline} section 668.3(8)

[Johnson v. Knoxville Comm. Sch. Dist.]{.underline}, 570 NW2d 633, 644
(Iowa 1997)

# 

# Comment

Note: \*The above list is merely an example of format. The list of items
should be consistent with the damage marshaling instruction.

6/98

Note: If the fault of a party or parties other than the defendant is not
at issue, do not submit questions 3, 4 and 5.

[]{#a3005 .anchor}300.5 Verdict - Single Plaintiff, Single Defendant -
Claim And Counterclaim - Cases Governed By Chapter 668.

\[Use caption of case if desired\]

I. PLAINTIFF\'S CLAIM

Question No. 1: Was the defendant at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"yes,\" then answer Question No. 2. If your answer
is \"no,\" then proceed to answer the questions regarding the
defendant\'s counterclaim.\]

Question No. 2: Was the fault of the defendant a proximate cause of any
item of damage to the plaintiff?

Answer \"yes\" or \"no\".

ANSWER:

\[If your answer is \"yes,\" then answer Question No. 3. If your answer
is \"no,\" then proceed to answer the questions regarding defendant\'s
counterclaim.\]

Question No. 3: Was the plaintiff at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"yes,\" then answer Question No. 4. If your answer
is \"no,\" proceed to Question No. 6.\]

Question No. 4: Was the fault of the plaintiff a proximate cause of any
damage to the plaintiff?

Answer \"yes\' or \"no.\"

ANSWER:

\[If your answer is \"yes,\" then answer Question No. 5. If your answer
is \"no,\" proceed to Question no. 6.\]

Question No. 5: Using 100% as the total combined fault of plaintiff and
defendant which was a proximate cause of damage to the plaintiff, what
percentage of the total fault do you assign to the plaintiff and what
percentage of the total fault do you assign to the defendant?

ANSWER: Plaintiff \_\_\_\_\_\_\_\_\_\_\_%

Defendant \_\_\_\_\_\_\_\_\_%

\[If you find plaintiff to be more than 50% at fault, do not answer
Question No. 6.\]

Question No. 6 State the amount of damages sustained by the plaintiff
proximately caused by defendant\'s fault as to each of the following
items of damage. Do not take into consideration any reduction of damages
due to plaintiff\'s fault. If the plaintiff has failed to prove any item
of damage, or has failed to prove that any item of damage was
proximately caused by defendant\'s fault, enter 0 for that item.

\*1. Past medical expenses \$ \_\_\_\_\_\_\_\_\_

2\. Future medical expenses \$ \_\_\_\_\_\_\_\_\_

3\. Past pain and suffering \$ \_\_\_\_\_\_\_\_\_

4\. Future pain and suffering \$ \_\_\_\_\_\_\_\_\_

TOTAL (add the separate items of damage) \$ \_\_\_\_\_\_\_\_\_

II\. DEFENDANT\'S COUNTERCLAIM

Question No. 1: Was the plaintiff at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"yes,\" then answer Question No. 2. If your answer
is \"no,\" do not answer any further questions.

Question No. 2: Was the fault of the plaintiff a proximate cause of any
item of damage to the defendant?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"yes,\" proceed to Question No. 3. If your answer
is \"no,\" do not answer any further questions.\]

Question No. 3: Was the defendant at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"yes,\" then answer Question No. 4. If your answer
is \"no,\" proceed to Question No. 6.\]

Question No. 4: Was the fault of the defendant a proximate cause of any
damage to the defendant?

Answer \"yes or \"no.\"

ANSWER:

\[If your answer is \"yes,\" then answer Question No. 5. If your answer
is \"no,\" proceed to Question No. 6.\]

Question No. 5: Using 100% as the total combined fault of plaintiff and
defendant which was a proximate cause of damage to the defendant, what
percentage of the total fault do you assign to the plaintiff and what
percentage of the total fault do you assign to the defendant?

ANSWER: Plaintiff \_\_\_\_\_\_\_\_\_\_\_\_\_ %

Defendant \_\_\_\_\_\_\_\_\_\_\_ %

TOTAL 100%

\[If you find defendant to be more than 50% at fault, do not answer
Question No. 6.\]

Question No. 6: State the amount of damages sustained by the defendant
proximately caused by plaintiff\"s fault as to each of the following
items of damage. Do not take into consideration any reduction of damages
due to defendant\'s fault. If the defendant has failed to prove any item
of damage, or has failed to prove that any item of damage was
proximately caused by plaintiff\'s fault, enter 0 for that item.

\*1. Past medical expenses \$\_\_\_\_\_\_\_\_

2\. Future medical expenses \$\_\_\_\_\_\_\_\_

3\. Past pain and suffering \$\_\_\_\_\_\_\_\_

4\. Future pain and suffering \$\_\_\_\_\_\_\_\_

TOTAL (add the separate items of damage) \$\_\_\_\_\_\_\_\_

# Authority

[Iowa Code]{.underline} section 668.3(8)

[Johnson v. Knoxville Comm. Sch. Dist]{.underline}., 570 NW2d 633, 644
(Iowa 1997)

# Comment

Note: \*The above list is merely an example of format. The list of items
should be consistent with the damage marshaling instruction.

[]{#a3006 .anchor}300.6 Verdict - Single Plaintiff - Defendant(s), Third
Party Defendant(s), Person(s) Who Have Been Released - Cases Governed By
Chapter 668.

\[Use caption of case if desired.\]

We find the following verdict on the questions submitted to us:

(Name of Defendant No. 1)

Question No. 1: Was (name of defendant No. 1) at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer Question No. 2.\]

Question No. 2: Was the fault of (name of defendant No. 1)a proximate
cause of any item of damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer to either Question No. 1 or No. 2 is \"no,\" then you
shall not assign any fault to (name of defendant No. 1).\]

(Name of Defendant No. 2)

Question No. 3: Was (name of defendant No. 2) at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer Question No. 4.\]

Question No. 4: Was the fault of (name of defendant No. 2) a proximate
cause of any item of damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer to either Question No. 3 or No. 4 is \"no,\" then you
shall not assign any fault to (name of defendant No. 2).\]

(Name of Defendant No. 3)

Question No. 5: Was (name of defendant No. 3) at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer Question No. 6.\]

Question No. 6: Was the fault of (name of defendant No. 3) a proximate
cause of any item of damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer to either Question No. 5 or No. 6 is \"no,\" then you
shall not assign any fault to (name of defendant No. 3).\]

(Name of Third Party Defendant)

Question No. 7: Was (name of third party defendant) at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer Question No. 8.\]

Question No. 8: Was the fault of (name of third party defendant) a
proximate cause of any item of damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer to either Question No. 7 or No. 8 is \"no,\" then you
shall not assign any fault to (name of third party defendant).\]

(Name of Party Who Has Been Released)

Question No. 9: Was (name of person who has been released) at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer is \"no,\" do not answer Question No. 10.\]

Question No. 10: Was the fault of (name of party who has been released)
a proximate cause of any item of damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer to either Question No. 9 or No. 10 is \"no,\" then you
shall not assign any fault to (name of party who has been released).\]

(Name of Plaintiff)

Question No. 11: Was the Plaintiff at fault?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer to question No. 11 is \"no,\" do not answer Question
No. 12.\]

Question No. 12: Was the plaintiff\'s fault a proximate cause of any
damage to plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

\[If your answer to either Question No. 11 or No. 12 is \"no,\' then you
shall not assign any fault to the plaintiff.\]

Question No. 13: What percentage of the total fault do you attribute to
the plaintiff and what percentage of the total fault do you attribute to
\[the\] \[each\] defendant, \[third party defendant\] and \[person who
has been released\]? The percentages must total 100%.

\[If you previously found that a party \[or released person\] was not at
fault, or did not proximately cause damage to plaintiff, the enter \"0\"
after \[his\] \[her\] \[its\] name.\]

ANSWER: (Name of Plaintiff) %

(Name of Defendant No. 1) %

(Name of Defendant No. 2) %

(Name of Defendant No. 3) %

(Third Party Defendant) %

(Name of Released Party) %

TOTAL 100 %

\[If you find plaintiff to be more than fifty per cent (50%) at fault,
do not answer Question No. 14.\]

Question No. 14: State the amount of damages sustained by the plaintiff
proximately caused by a defendant\'s fault as to each of the following
items of damage. Do not take into consideration any reduction of damages
due to plaintiff\'s fault. If the plaintiff has failed to prove any item
of damage, or has failed to prove that any item of damage was
proximately caused by a defendant\'s fault, enter 0 for that item.

\*1. Past medical expenses \$ \_\_\_\_\_\_\_

2\. Future medical expenses \$ \_\_\_\_\_\_\_

3\. Past pain and suffering \$ \_\_\_\_\_\_\_

4\. Future pain and suffering \$ \_\_\_\_\_\_\_

TOTAL (add the separate items of damage) \$ \_\_\_\_\_\_\_

# Authority

[Iowa Code]{.underline} section 668.3(8)

[Johnson v. Knoxville Comm. Sch. Dist.,]{.underline} 570 NW2d 633, 644
(Iowa 1997)

Comment

Note: \*The above is merely an example of format. The list of items
should be consistent with the damage marshaling instruction.

[]{#a3007 .anchor}**300.7 Death Of Parents - Loss Of Spousal Consortium
To the Surviving Spouse - Loss Of Parental Consortium To A Minor -
Allocation Of Damage - Damages Recoverable By Personal Representative**.

\[Use caption of case if desired.\]

VERDICT NO.\_\_\_\_\_\_

If you find plaintiff is entitled to recover and the award of damages
includes an amount for \[loss of spousal consortium\] \[loss of parental
consortium to the surviving \[child\] \[children\], it will be necessary
for you to allocate that portion of the award which represents damage
for loss of consortium.

You will do this by answering the following questions:

Question No. 1: Does the damage award include an amount for loss of
spousal consortium to the surviving spouse?

Answer \"yes\" or \"no.\"

ANSWER:

\[Answer questions No. 2 and No. 3 only if your answer above is
\"yes.\"\]

Question No. 2: What amount of the total damage award is for loss of
spousal consortium to the surviving spouse?

ANSWER: \$

Question No. 3: With respect to the total amount of damages you found in
your answer to Question No. 2, what amount do you find should be awarded
for loss of future spousal consortium, if any?

ANSWER: \$

Question No. 4: Does the damage award include an amount for loss of
parental consortium to the surviving \[child\] \[children\]?

Answer \"yes\" or \"no.\"

ANSWER:

\[Answer Questions No. 5 and No. 6 only if your answer above is
\"yes.\"\]

Question No. 5: What amount of the total damage award is for loss of
parental consortium for \[the surviving child\] \[each surviving
child\]?

Amount of Damage for Loss

Name of Child of Parental Consortium

a\. (insert name) \$

b\. (insert name) \$

c\. (insert name) \$

Question No. 6: With respect to the total amount of damages you found in
your answer to Question No. 5, what amount do you find should be awarded
for loss of future parental consortium, if any?

Amount of Damage for Loss

Name of Child of Parental Consortium

a\. (insert name) \$

b\. (insert name) \$

c\. (insert name) \$

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FOREMAN OR FOREWOMAN\*

\*To be signed only if verdict is unanimous.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\*

\*\*To be signed by the jurors agreeing to it after six hours or more of
deliberation.

[]{#a3008 .anchor}300.8 Collateral Source - Comparative Fault.

Question No.\_\_\_\_\_ : Were any of (name of party\'s) damages paid, or
will any of his/her damages be paid by (name of collateral source(s))?

Answer \"yes\" or \"no\"

ANSWER:

\[If your answer is \"no,\" do not answer the remaining questions.\]

Question No.\_\_\_\_: Will any amounts paid by (name of collateral
source(s)) have to be refunded by (name of party) to (name of collateral
source(s))?

Answer \"yes\" or \"no\"

ANSWER:

If your answer is \"yes,\" you may not reduce any item of damage for
benefits which must be refunded by (name of party) to (name of
collateral source(s)).\*

Question No.\_\_\_\_: What amount of damages already paid by (name of
collateral source(s)) is to be refunded to(name of collateral
source(s))?

ANSWER: \$

Question No.\_\_\_\_: What amount, if any, of the damages will be paid
in the future by (name of collateral source(s)) for the benefit of (name
of party)?

ANSWER: \$

# Authority

[Iowa Code]{.underline} (668.14(3)

[Peters v. Vander Kooi]{.underline}, 494 N.W.2d 708, 714 (Iowa 1993)

[Schonberger v. Roberts]{.underline}, 456 N.W.2d 201, 205 (Iowa 1990)

[Loftsgard v. Dorrian,]{.underline} 476 N.W.2d 703 (Iowa Ct. App. 1991)

# Comment

Note: The Court in [Peters v. Vander Kooi]{.underline} indicates the
burden of proof is on the defendant to prove the amounts paid to the
plaintiff by collateral sources. Although not addressed in [Peters v.
Vander Kooi,]{.underline} the committee assumes the plaintiff should
have the burden to prove if amounts paid by collateral sources have to
be refunded. The following language could be added to the beginning or
end of this special verdict form or it could be made part of a separate
instruction: \"The defendant has the burden to prove the amounts which
have been or will be paid by collateral sources. The plaintiff has the
burden to prove the amounts which have been or will be required to be
refunded to collateral sources.\"

\* Iowa Code chapter 668 does not expressly authorize this statement,
but see dissent in Schonberger v Roberts, 456 NW2d 201, 205 (Iowa 1990).

[]{#a3009 .anchor}300.9 Verdict - Product Liability - State of the Art.

We find the following verdict on the questions submitted:

1\. \[Plaintiff\'s claim of defect or negligence against (name of
defendant)\]

Question A:

Was (name of defendant) at fault with respect to \[specific claim of
plaintiff\]?

Answer \"yes\" or \"no\"

ANSWER:

(If your answer is \"no,\" do not answer Questions B or C.)

Question B:

Was (name of defendant\'s) fault with respect to (specific claim of
plaintiff) a proximate cause of plaintiff\'s damages?

Answer \"yes\" or \"no\"

ANSWER:

(If your answer is \"no,\" do not answer Question C.)

Question C:

Did (name of defendant) comply with the state of the art with respect to
(specific claim of plaintiff)?

Answer \"yes\" or \"no\"

ANSWER:

(If your answer is \"yes,\" do not assign any fault against (name of
defendant) for (specific claim of plaintiff))

2\. \[Submit questions A, B and C for each specific claim of plaintiff
and for each defendant\]

[]{#CH400 .anchor}**CHAPTER 400**

# COMPARATIVE FAULT

[400.1](#a4001) Fault - Defined

[400.2](#a4002) Comparative Fault

[400.3](#a4003) Comparative Fault - Effects Of Verdict

[400.4](#a4004) Comparative Fault - No Imputation Of Fault

[400.5](#a4005) Comparative Fault - Single Plaintiff - Essentials For
Recovery

[400.6](#a4006) Comparative Fault - Single Defendant - Essentials For
Defense

[400.7](#a4007) Comparative Fault - Mitigation

[400.8](#a4008) Unreasonable Failure To Avoid An Injury - Defined

[400.9](#a4009) Unreasonable Assumption Of Risk - Defined

[400.10](#a40010) Comparative Fault - Released Party - Essentials for
Finding Fault of Released Party

[]{#a4001 .anchor}**400.1 Fault - Defined.** In these instructions I
will be using the term \"fault\". Fault means one or more acts or
omissions towards \[the person\] \[the property\] of the actor or of
another which constitutes \[negligence\] \[recklessness\] \[subjects a
person to strict tort liability\] \[breach of warranty\] \[unreasonable
assumption of risk not constituting an enforceable express consent\]
\[misuse of a product for which the defendant otherwise would be
liable\] \[unreasonable failure to avoid an injury\] \[unreasonable
failure to mitigate damages\].

# Authority

[Iowa Code]{.underline} section 668.1

**Comment**

Note: Select the particulars applicable to the case.

[]{#a4002 .anchor}**400.2 Comparative Fault.** Damages may be the fault
of more than one person. In comparing fault, you should consider all of
the surrounding circumstances as shown by the evidence, together with
the conduct of the \[plaintiff\] \[defendant(s)\] \[third party
defendant(s)\] \[persons who have been released\] 1 and the extent of
the causal relation between their conduct and the damages claimed. You
should then determine what percentage, if any, each person\'s fault
contributed to the damages. Defendants (name) and

(name) are to be treated as a single party for the purpose of
determining their percentage of fault. 2

# Authority

[Iowa Code]{.underline} section 668.3(3)

# Comment

Note: 1. Select the appropriate phrases. It is suggested that the names
of the persons be used along with the position in the lawsuit, i.e.
\"Plaintiff, George Jones,\" or \"James Jones, who has just been
released.\"

Note: 2. Use only where the Court has determined two or more persons are
to be considered as a single party. See [Iowa Code]{.underline} section
668.3(2)(b). For example: The owner and driver of a motor vehicle.

[]{#a4003 .anchor}**400.3 Comparative Fault - Effects Of Verdict.**
After you have compared the conduct of all parties, if you find the
plaintiff, \_\_\_\_\_\_\_\_\_, was at fault and the plaintiff\'s fault
was more than 50% of the total fault, the plaintiff, \_\_\_\_\_\_\_\_,
cannot recover damages.

However, if you find the plaintiff\'s fault was 50% or less of the total
fault, then I will reduce the total damages by the percentage of
plaintiff\'s fault.

**Comment**

Note: 1. Where consortium claims are involved in actions filed on or
before July 1, 1997, add: Any fault assigned to plaintiff,
\_\_\_\_\_\_\_, will not reduce the recovery awarded to \_\_\_\_\_\_\_.
Where consortium claims are involved in actions filed after July 1,
1997, the fault of the person whose injury or death provides the basis
for the consortium claim does bar or reduce the consortium recovery.
[Iowa Code]{.underline} section 668.3(1)(b), overturning [Schwennen v.
Abell]{.underline}, 430 N.W. 2d 98 (Iowa 1988).

Note: 2. When the jury will be asked to allocate fault among more than
two \"parties\" as defined in [Iowa]{.underline} [Code]{.underline}
section 668.2, add: If you assign to a party less than 50% of the total
fault, that party will only be liable to the extent of the percentage of
fault assigned by you.

Note: 3. When there is more than one defendant in actions filed on or
before July 1, 1997, add: Plaintiff can claim the entire amount awarded
to the plaintiff from any defendant whose percentage of fault is found
by you to be 50% or more.

Note: 4. When there is more than one defendant in actions filed on or
before July 1, 1997, add: Plaintiff can claim the entire amount of
\[earning capacity\] \[medical expenses\] \[other economic damages\]
awarded to the plaintiff from any defendant whose percentage of fault is
found by you to be 50% or more.

Note: 5. If the jury is asked to compare fault of a third party
defendant or more than one defendant, add; I will order the
\[defendants\] \[and third party defendant\] to contribute to the
payment of damages awarded on the basis of the percentages of fault you
insert in your answers to the questions at the end of these
instructions.

Note: 6. When there is a settling party, add: If you assign a percentage
of fault to the settling party , I will reduce the amount of
plaintiff\'s recovery by that percentage.

# Authority

[Iowa Code]{.underline} sections 668.1, 668.3(5), 668.5(1), R.C.P. 239

[McIntosh v. Barr]{.underline}, 397 N.W.2d 516 (Iowa 1986)

[Reese v. Werts]{.underline}, 379 N.W.2d 1 (Iowa 1985)

[Polyzer v. McGraw]{.underline}, 360 N.W.2d 748, 753 (Iowa 1985)

[Madison v. Colby]{.underline}, 348 N.W.2d 202 (Iowa 1984)

[Fuller v. Buhrow]{.underline}, 292 N.W.2d 672 (Iowa 1980)

# Comment

Caveat: The instruction must be modified where vehicle damage claims
covered by [Stuart v. Pilgrim]{.underline}, 247 Iowa 709, 74 N.W.2d 212
(Iowa 1956) are involved.

10/97

[]{#a4004 .anchor}**400.4 Comparative Fault - No Imputation Of Fault.**
When you consider (claimant)\'s claim for \[loss of consortium in
actions filed on or before July 1, 1997\] \[injuries received as a
passenger\] \[motor vehicle damage\] you will not charge (claimant) with
the fault of (name). Also, the fault of (name) shall not be considered
in the 100% total of casual fault of (claimant)\'s damages and I will
not reduce the damages awarded to (claimant).

# Authority

Consortium - [Schwennen v. Abell]{.underline}, 430 N.W.2d 98 (Iowa 1988)

Owners claim for personal injury or damages to vehicle driven by
another - [Phillips v. Foster]{.underline}, 252 Iowa 1075, 109 N.W.2d
605 (1961); [Stuart v. Pilgrim]{.underline}, 247 Iowa 709, 74 N.W.2d 212
(1956)

# Comment

Note: 1. If the owner is a passenger and an issue is raised as to
\[his\] \[her\] control of the vehicle, this instruction must be adapted
to the situations discussed in [Phillips v. Foster]{.underline}. It is
not applicable where owner has right of control arising from certain
relationship, such as principal and agent, master and servant,
partnership or joint venturer mentioned in [Stuart v.
Pilgrim]{.underline}.

Note: 2. In actions filed after July 1, 1997, damages for loss of
services, companionship, society, or consortium will be barred of
diminished in proportion to the amount of fault attributable to the
person whose injury of death provided the basis for the damages[. Iowa
Code]{.underline} section 668.3(1)(b), overturning [Schwennen v.
Abell]{.underline}, 430 N.W. 2d 98 (Iowa 1988).

10/97

[]{#a4005 .anchor}**400.5 Comparative Fault - Single Plaintiff -
Essentials For Recovery.** The Plaintiff claims the defendant was at
fault in \[one or more of\] the following particular(s):

\[Insert the grounds of fault pleaded and supported by the evidence.\]

These grounds of fault have been explained to you in other instructions.

The plaintiff must prove all of the following propositions:

1\. The defendant was at fault. In order to prove fault, the plaintiff
must prove \[use the appropriate elements from the marshalling
instructions in relevant chapters\].

2\. The defendant\'s fault was a proximate cause of the plaintiff\'s
damage.

3\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, you will consider the defense of comparative fault
as explained in Instruction Nos. \_\_\_\_\_, \_\_\_\_\_, and \_\_\_\_\_.

[]{#a4006 .anchor}**400.6 Comparative Fault - Single Defendant -
Essentials For Defense.** The defendant claims the plaintiff was at
fault in one or more of the following particular(s):

(Insert the grounds of fault pleaded and supported by the evidence.)

These grounds of fault have been explained to you in other instructions.

The defendant must prove both of the following propositions:

1\. The plaintiff was at fault. In order to prove fault, the defendant
must prove (use the appropriate elements from the marshalling
instruction in relevant chapters).

2\. The plaintiff\'s fault was a proximate cause of the plaintiff\'s
damage.

If the defendant has failed to prove either of these propositions, the
defendant has not proved \[his\] \[her\] defense. If the defendant has
proved both of these propositions, then you will assign a percentage of
fault against the plaintiff and include the plaintiff\'s fault in the
total percentage of fault found by you answering the special verdicts.

[]{#a4007 .anchor}**400.7 Comparative Fault - Mitigation.** Defendant
claims plaintiff was at fault for failing to mitigate \[his\] \[her\]
damages by not \[exercising ordinary care to obtain reasonable medical
treatment\] \[exercising ordinary care to follow medical advice and
treatment\] \[exercising ordinary care (specify manner in which
defendant claims plaintiff had a duty to reduce damages)\].

Plaintiff has a duty to exercise ordinary care to reduce, minimize or
limit \[his\] \[her\] damages. However, plaintiff has no duty to do
something that is unreasonable under the circumstances, such as
\[undergo serious or speculative medical treatment\] \[undertake action
which is unreasonably expensive or intrusive\] \[undertake action which
imposes unreasonable inconvenience\].

To prove defendant\'s claim of failure to mitigate, \[he\] \[she\] must
prove all of the following:

1\. There was something plaintiff could do to mitigate \[his\] \[her\]
damages;

2\. Requiring plaintiff to do so was reasonable under the circumstances;

3\. Plaintiff acted unreasonable in failing to undertake the mitigating
activity; and

4\. Plaintiff\'s failure to undertake the mitigating activity
proximately caused an identifiable portion of \[his\] \[her\] damages.

# **If the defendant has proved all of these numbered propositions, then defendant has proved this defense, and you shall assign a percentage of fault to the plaintiff for the time period after the failure to mitigate. This amount will be used in answering the special interrogatory in the verdict. If the defendant has failed to prove one or more of these numbered propositions, then defendant has not proved plaintiff failed to mitigate \[his\] \[her\] damages.**

# Authority

[Iowa Code]{.underline} section 668.1

[Greenwood v. Mitchell]{.underline}, 621 N.W.2d 200 (Iowa 2001)

[Shewry v. Heuer]{.underline}, 255 Iowa 147, 121 N.W.2d 529 (1963)

[Updegraff v. City of Ottumwa]{.underline}, 210 Iowa 382, 226 N.W.2d 928
(1929)

[White v. Chicago & N.W. Ry. Co.,]{.underline} 145 Iowa 408, 124 N.W.
309 (1910)

[Bailey v. City of Centerville]{.underline}, 108 Iowa 20, 78 N.W. 831
(1899)

[Welter v. Humbolt County]{.underline}, 461 N.W.2d 335 (Iowa App. 1990)

# Comment

Note: Before submitting a mitigation instruction, the Court must first
determine that the defendant presented \"substantial evidence\" on each
of the four (4) elements. Also, there must be evidence of \"an
identifiable portion of damages\" that plaintiff could have mitigated
and the jury not left to speculate. [Greenwood v.]{.underline}
[Mitchell]{.underline}, at 205-207.

Special interrogatories in the verdict form are to be used to comply
with [Greenwood v. Mitchell]{.underline}.

[]{#a4008 .anchor}**400.8 Unreasonable Failure To Avoid An Injury -
Defined**. A party is required to exercise reasonable care for their own
safety. This means that, if, in the exercise of ordinary care under the
circumstances, a party could have taken some particular action after an
act of fault of another party, in order to avoid an injury, then they
are under a duty to take such action.

In this case defendant claims that plaintiff unreasonably failed to take
action to avoid an injury because:

(Set out the specifications.)

# Authority

[Iowa Code]{.underline} section 668.1

[Olson v. Prosoco]{.underline}, 522 N.W.2d 284 (Iowa 1994)

[Coker v. Abell-Howe Co.]{.underline}, 491 N.W.2d 143 (Iowa 1992)

[Rinkleff v. Knox]{.underline}, 375 N.W.2d 262 (Iowa 1985)

# Comment

Note: Use this instruction only where the failure to avoid injury
occurred after the alleged fault of the party for whom this Instruction
is given.

[]{#a4009 .anchor}**400.9 Unreasonable Assumption Of Risk - Defined.**
The defendant claims that plaintiff unreasonably assumed the risk by:

(Set out the particulars.)

To prove this defense, the defendant must prove all of the following
propositions:

1\. The plaintiff knew the risk was present.

2\. The plaintiff understood the nature of the risk to \[himself\]
\[herself\].

3\. Nevertheless, the plaintiff unreasonably, freely and voluntarily
took the risk.

4\. The plaintiff\'s assumption of the risk was a proximate cause of
plaintiff\'s damage.

If the defendant has failed to prove any of these propositions, the
defendant has not proved this defense. If the defendant has proved all
of these propositions, then you will assign a percentage of fault
against the plaintiff and include it in the total percentage of fault,
if any, found by you in your answers to the special verdicts.

# Authority

[Iowa Code]{.underline} section 668.1

[Martin v. Heddinger]{.underline}, 373 N.W.2d 486 (Iowa 1985)

[Hughes v. Magic Chef, Inc.,]{.underline} 288 N.W.2d 542, 548 (Iowa
1980) (Court\'s emphasis)

[Rosenau v. City of Estherville]{.underline}, 199 N.W.2d 125 (Iowa 1972)

Restatement (Second) of Torts, Section 496A, et. seq. Section 496G

# Comment

Note: This instruction should not be used, and assumption of risk is not
available as a separate defense, in cases where contributory negligence
is available under Chapter 668 of the Code. In strict liability cases,
assumption of risk is an available defense. [Coker v. Abell-Howe
Co.,]{.underline} 491 N.W.2d 143 (Iowa 1992).

[]{#a40010 .anchor}**400.10 Comparative Fault - Released - Essentials
for Finding Fault of Released Party.** The defendant claims that
(released party) was at fault in \[one or more of\] the following
particular(s):

These grounds must prove all of the following propositions:

1\. (Released party) was at fault. In order to prove fault, the
defendant must prove \[use the appropriate elements from the marshaling
instructions in relevant chapters\].

2\. (Released party's) fault was a proximate cause of the plaintiff's
damage.

If the defendant has failed to prove either of these propositions, you
cannot assign any percentage of fault to (released party). If the
defendant has proved both of these propositions, then you will assign a
percentage of fault against(released party) and include the (released
party)'s fault in the total percentage of fault found by you in
answering the special verdicts.

# Authority

[Beyer v. Todd's Flying Service]{.underline}, \_\_\_ N.W.2d \_\_\_ (Iowa
1999).

[]{#CH500 .anchor}**CHAPTER 500**

# INDEPENDENT CONTRACTOR

[500.1](#a5001) Liability Of Person Engaging Services Of Independent
Contractor - Essentials For Recovery

[500.2](#a5002) Liability Of Person Engaging Services Of Independent
Contractor - Duty Of Care To Employees Of Independent Contractor

[500.3](#a5003) Liability Of Person Engaging Services Of Independent
Contractor - Work Dangerous In Absence Of Special Precautions

[500.4](#a5004) Liability Of Person Engaging Services Of An Independent
Contractor - Inherently Dangerous Work

[500.5](#a5005) Liability Of Person Engaging Services Of Independent
Contractor -Negligence In Exercising Control Kept By Such Person.

[500.6](#a5006) Liability Of Person Engaging Services Of Independent
Contractor - Nondelegable Duty Imposed By Statute, Ordinance Or Contract

[500.7](#a5007) Liability Of Person Engaging Services Of Independent
Contractor - Work Likely To Cause Nuisance Or Trespass - Essentials For
Recovery

[500.8](#a5008) Liability Of Person Engaging Services Of Independent
Contractor - Work Involving Illegal Act - Essentials For Recovery

[]{#a5001 .anchor}**500.1 Liability Of Person Engaging Services Of
Independent Contractor - Essentials For Recovery.** In order to
establish liability on the part of one who hires an independent
contractor for acts or omissions of that independent contractor, the
plaintiff must prove all of the following propositions:

1\. The defendant was negligent in one or more of the following ways:

a\. Defendant failed to keep the premises in a reasonably safe condition
for an employee of an independent contractor.

b\. The work was likely to create a peculiar risk in the absence of
special precautions and defendant failed to take the precautions.

c\. The danger was normal to the work and defendant failed to take
pre-cautions against the danger.

d\. Defendant kept control over a particular part of the work and failed
to use ordinary care in controlling that work.

e\. Defendant was under a legal or contractual duty to provide a
specified safeguard against danger and failed to do so.

2\. The negligence of the defendant was a proximate cause of the
plaintiff\'s damage.

3\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

# Authority

[Downs v. A. & H. Constr]{.underline}., Ltd., 481 N.W.2d 520 (Iowa 1992)

[Clausen v. R. W. Gilbert Const. Co]{.underline}., Inc., 309 N.W.2d 462
(Iowa 1981)

[Lunde v. Winnebago Industries, Inc]{.underline}., 299 N.W.2d 473 (Iowa
1980)

[Giarratano v. Weitz Company]{.underline}, 259 Iowa 1292, 147 N.W.2d 824
(1967)

## Restatement (Second) of Torts, Sections 409-427B

# Comment

Submit only those acts that have evidentiary support. If special
precautions are claimed, set forth in b. and c. the special precautions
claimed.

[]{#a5002 .anchor}**500.2 Liability Of Person Engaging Services Of
Independent Contractor - Duty Of Care To Employees Of Independent
Contractor.** Persons who hire an independent contractor to do work on
their property have the duty to exercise ordinary care to keep portions
of the property under their control in a reasonably safe condition for
the employees of the independent contractor.

A failure to do so is negligence.

# Authority

[Greenwell v. Meredith Corporation]{.underline}, 189 N.W.2d 901 (1971)

# Comment

Note: To amplify this instruction see Chapter 900, Premises Liability.

[]{#a5003 .anchor}**500.3 Liability Of Person Engaging Services Of
Independent Contractor - Work Dangerous In Absence Of Special
Precautions.** Persons who hire an independent contractor to do work
which they should recognize as likely to create a peculiar risk of harm
to others while the work is being done have the duty to exercise
ordinary care to take special precautions.

A \"peculiar risk\" of harm exists only where some special danger
results from the nature of the work done and which calls for special
precautions. \"Peculiar\" does not mean that the risk must be one which
is abnormal to the type of work done or that it must be an abnormally
great risk. It refers to a special, exceptional, unusual, recognizable
open danger arising out of the work itself which exists at all times.

This duty continues even though the contract provides for others to take
adequate precautions, and the independent contractor agrees and assumes
all liability for failing to do so. Such a contract does not relieve
defendants from their duty to take such precautions where third persons
are concerned.

A violation of this duty is negligence.

# Authority

[Clausen v. R. W. Gilbert Const. Co., Inc]{.underline}., 309 N.W.2d 462
(Iowa 1981)

[Lunde v. Winnebago Industries, Inc.,]{.underline} 299 N.W.2d 473 (Iowa
1980)

## Restatement of Torts (Second), Section 416

[]{#a5004 .anchor}**500.4 Liability Of Person Engaging Services Of An
Independent Contractor - Inherently Dangerous Work**. Persons who hire
an independent contractor to do work have the duty to exercise ordinary
care to take reasonable precautions to protect others against special
dangers when:

1\. The work involves a special danger to others normal to the work.

2\. The persons know or have reason to know the special danger is normal
to the work.

The danger must arise from the normal and usual method of doing the
work, and it must be present at all times. This duty does not apply to
dangers arising from negligence of the independent contractor in the
method or manner of carrying out the work.

A violation of this duty is negligence.

# Authority

[Clausen v. R. W. Gilbert Const. Co]{.underline}., Inc., 309 N.W.2d 462
(Iowa 1981)

[Lunde v. Winnebago Industries, Inc.]{.underline}, 299 N.W.2d 473 (Iowa
1980)

Restatement (Second) of Torts, Sections 413, 416, 427

[]{#a5005 .anchor}**500.5 Liability Of Person Engaging Services Of
Independent Contractor - Negligence In** **Exercising Control Retained
By Such Person.** Persons who hire an independent contractor, but who
keep control of a particular part of the work, have the duty to use
ordinary care in exercising such control.

\"Keeping control\" means keeping some degree of control over the way
the work is done. This includes the right of supervision so that the
independent contractor is not entirely free to control the way the work
is done. It is not enough to have only a general right to order the work
stopped or resumed, to inspect its progress or to receive reports, to
make suggestions or recommendations which need not necessarily be
followed, or to prescribe alterations or changes.

A violation of this duty is negligence.

# Authority

[Downs v. A. & H. Constr., Ltd]{.underline}., 481 N.W.2d 520 (Iowa 1992)

[Giarratano v. Weitz Co.,]{.underline} 259 Iowa 1292, 147 N.W.2d 824
(1967)

Restatement (Second) of Torts, Section 414

[]{#a5006 .anchor}**500.6 Liability Of Person Engaging Services Of
Independent Contractor - Nondelegable Duty Imposed By Statute, Ordinance
Or Contract.** Persons who hire an independent contractor and who are
under a duty to provide specified safeguards or precautions for the
safety of others by \[statute\] \[ordinance\] \[contract\] cannot escape
responsibility by delegating it to an independent contractor.

The defendant had a duty to \[specify the nondelegable duty and how it
arose\].

A violation of this duty is negligence.

# Authority

[Giarratano v. Weitz Co]{.underline}., 259 Iowa 1292, 147 N.W.2d 824
(1967)

Restatement (Second) of Torts, Section 424

**Commen**t

Caveat: This instruction should be amplified to apply the above
statement of the law to the issues and parties.

Caveat: A breach of an administrative standard is not the breach of a
statutory duty or ordinance. [Porter v. Iowa Power And Light
Co.]{.underline}, 217 N.W.2d 221, 237 (Iowa 1974)

[]{#a5007 .anchor}**500.7 Liability Of Person Engaging Services Of
Independent Contractor - Work Likely To Cause** **Nuisance Or Trespass -
Essentials For Recovery.** In order to establish liability of (name or
party) for acts of (independent contractor) resulting in \[the creation
of a \[public\] \[private\] \[nuisance\] \[trespass upon the property of
another\], the plaintiff must prove all of the following propositions:

1\. (The independent contractor) \[created a nuisance\] \[trespassed
upon the land of (plaintiff)\] in one or more of the following ways:

\(a\) (conduct alleged to constitute nuisance or trespass);

2\. The defendant \[knew or should have known a \[nuisance\]
\[trespass\] would result\] \[if done in an ordinary manner\] \[unless
special precautions were taken\]\] \[received notice during the progress
of the work a nuisance existed\] \[trespass was occurring\].

3\. The \[nuisance\] \[trespass\] was a proximate cause of damage to the
plaintiff.

4\. The nature and extent of the plaintiff\'s damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of those
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_\_.\]

# Authority

[Shannon v. Missouri Valley Limestone Company]{.underline}, 255 Iowa
528, 122 N.W.2d 278 (1963)

Restatement (Second) of Torts, Section 427B

# Comment

Note: This section must be amplified by instructing on nuisances. This
same instruction can also be used for work likely to cause a trespass.

[]{#a5008 .anchor}**500.8 Liability Of Person Engaging Services Of
Independent Contractor - Work Involving Illegal Act.- Essentials For
Recovery.** In order to establish the liability of (name of party) for
the fault of (independent contractor) during the performance of an
illegal act, the plaintiff must prove all of the following propositions:

1\. (The independent contractor) was acting illegally in one or more of
the following ways:

a\. (conduct alleged to be illegal)

2\. (Name of party) knew or should have known (the independent
contractor) would be acting illegally in carrying out the work.

3\. (The independent contractor) was at fault in one or more of the
following ways:

a\. (conduct alleged to constitute fault)

4\. The fault of (the independent contractor) was a proximate cause of
plaintiff\'s damage.

5\. The nature and extent of the damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of those
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\].

# Authority

[Hough v. Central States Freight Service, Inc]{.underline}., 222 Iowa
548, 269 N.W.1 (Iowa 1936)

[]{#CH600 .anchor}**CHAPTER 600**

MOTOR VEHICLES - RULES OF THE ROAD

# Speed Restrictions

[600.1](#a6001) Reasonable And Proper

[600.2](#a6002) Speed In Excess Of Statutory Limits

[600.3](#a6003) Assured Clear Distance Ahead

[600.4](#a6004) Interstate And Comparable Highways

[600.5](#a6005) Truck Speed Limits

[600.6](#a6006) Bus Speed Limits

[600.7](#a6007) Control - Common Law

[600.8](#a6008) Control Of Vehicle - Statutory

[600.9](#a6009) Duty To Use Ordinary Care Where Conditions Require Less
Than Statutory Speed Limits

**Driving On Right Side of Road - Overtaking and Passing, Etc.**

[600.10](#a60010) Meeting And Turning To Right

[600.11](#a60011) Driving On Right Half Of Road - Exceptions

[600.12](#a60012) Driving On Right-Hand Side Of Road - Slow Moving
Vehicle

[600.13](#a60013) Driving On Right-Hand Side Of Road - When Four Or More
Lanes And Two-Way Traffic

[600.14](#a60014) Overtaking A Vehicle

[600.15](#a60015) Limitations On Overtaking On The Left

[600.16](#a60016) Duty Of Passed Vehicle

[600.17](#a60017) Overtaking On The Right - Left Turning Vehicle

[600.18](#a60018) Overtaking On The Right - Multi-Lane Highway

[600.19](#a60019) Prohibited Passing

[600.20](#a60020) One-Way Roads

[600.21](#a60021) Traffic Islands

[600.22](#a60022) Backing Vehicle On Highway

[600.23](#a60023) Roads Laned For Traffic

[600.24](#a60024) Following Too Closely

[600.25](#a60025) Trucks And Towed Vehicles - Distance Requirements

[600.26](#a60026) Convoys - Distance Requirements

[600.27](#a60027) Drawbar Or Towing Arm - Required Equipment

[600.28](#a60028) Limitations On Towing

# Turning and Starting and Signals On Stopping and Turning

[600.29](#a60029) Turning At Intersections

[600.30](#a60030) Turning On Curve Or Crest Of Hill

[600.31](#a60031) Starting Parked Vehicle

[600.32](#a60032) Turning From A Direct Course

[600.33](#a60033) When Signal Required - Continuous - Methods of Giving

[600.34](#a60034) Stopping

[600.35](#a60035) Approaching Or Entering Intersection

[600.36](#a60036) Traffic Control Signals

[600.37](#a60037) Left Turns - Yielding

[600.38](#a60038) Entering Through Highways

[600.39](#a60039) Vehicles Entering Stop Or Yield Intersection

[600.40](#a60040) Operation On Approach Of Emergency Vehicles

[600.41](#a60041) Any Authorized Emergency Vehicle

[600.42](#a60042) Fire Department, Police and Ambulance Vehicles

[600.43](#a60043) Reckless

[600.45](#a60045) Traffic Control Signals - Pedestrians

[600.46](#a60046) Crosswalk - Definition

[600.47](#a60047) Pedestrian\'s Duty Of Care In A Crosswalk

[600.48](#a60048) Crossing At Other Than Crosswalk

[600.49](#a60049-1) Pedestrians On Left

[600.50](#a60050) Pedestrians Soliciting Rides

[600.51](#a60051) Pedestrians\' Right Of Way

[600.52](#a60052) Duty Of Driver

[600.53](#a60053) Duty Of Driver - Child Darting Case

[600.54](#a60054) White Canes Restricted To Blind Persons - Duty Of
Drivers

# Safety Zone

[600.55](#a60055) Driving Through Safety Zone

[600.56](#a60056) Obedience To Signal Of Train

[600.57](#a60057) Stop At Certain Railroad Crossings

[600.58](#a60058) Certain Vehicles Must Stop

[600.59](#a60059) Stop Before Crossing Sidewalk - Right Of Way

# Stopping, Standing and Parking

[600.60](#a60060) Stopping On Traveled Way

[600.61](#a60061) Stopping On Traveled Way - Exception - Disabled
Vehicle

[600.62](#a60062) Stopping, Standing Or Parking

[600.63](#a60063) Parking At Right Hand Curb

# Miscellaneous Rules

[600.64](#a60064) Unattended Motor Vehicle

[600.65](#a60065) Obstruction To Driver\'s View

[600.66](#a60066) Control Of Vehicle - Signals

[600.67](#a60067) Coasting Prohibited

[600.68](#a60068) Crossing Median Strip Or Parking On Fully
Controlled-Access Facilities

[600.69](#a60069) Putting Debris On Highway

[600.70](#a60070) Removing Injurious Material From Highway

[600.71](#a60071) Right Of Assumption

[600.72](#a60072) Lookout

[600.73](#a60073) Recklessness

[600.74](#a60074) Legal Excuse

[600.75](#a60075) Sudden Emergency

[600.76](#a60076) Negligence Of Common Carrier Of Passengers

# Buses

[600.77](#a60077) Meeting School Bus

[600.78](#a60078) Overtaking School Bus

# Lighting Equipment

[600.79](#a60079) When Lighted Lamps Required

[600.80](#a60080) Head Lamps On Motor Vehicles

[600.81](#a60081) Head Lamps On Motorcycles

[600.82](#a60082) Rear Lamps And Reflectors

[600.83](#a60083) Clearance And Identification Lights

[600.84](#a60084) Lamp Or Flag On Projecting Load

[600.85](#a60085) Lamps On Parked Vehicles

[600.86](#a60086) Lamps On Bicycles

[600.87](#a60087) Lamps On Other Vehicles And Equipment

[600.88](#a60088) Slow Moving Farm Vehicles, Etc.

[600.89](#a60089) Spot Lamps

[600.90](#a60090) Auxiliary Driving Lamps

[600.91](#a60091) Signal Lamps And Signal Devices

[600.92](#a60092) Duty To Dim Lights

# Brakes

[600.93](#a60093) Red Light In Front

[600.94](#a60094) Brakes, Hitch And Control Requirements

[600.95](#a60095) Brakes - Performance Ability

# Miscellaneous Equipment

[600.96](#a60096) Horns And Warning Devices

[600.97](#a60097) Duty To Sound Horn

[600.98](#a60098) Windshields And Windows - Clear Vision

[600.99](#a60099) Unsafe Vehicles

[600.100](#a600100) Seat Belt Defense - Essentials

CROSS REFERENCE TABLE

MOTOR VEHICLES - RULES OF THE ROAD

CODE SECTION INSTRUCTION

321.1(26) 600.40

321.1(26) 600.41

321.1(26) 600.42

321.1(26) 600.43

321.1(53) 600.38

321.1(54) 600.35

321.1(55) 600.46

321.1(55) 600.48

321.1(56) 600.55

321.1(66) 600.35

321.231 600.40

321.231 600.41

321.231 600.42

321.231 600.43

321.231 600.44

321.257 600.36

321.257 600.45

321.257(e) 600.39

321.285 600.1

321.285 600.2

321.285 600.3

321.285 600.9

321.285(7) 600.2

321.285(8) 600.4

321.286 600.5

321.287 600.6

321.288(1) 600.8

321.288(2) 600.8

321.288(2)(a)-(f) 600.8

321.294 600.1

321.297 600.10

321.297(1) 600.11

321.297(2) 600.12

321.297(3) 600.13

321.298 600.10

321.299 600.11

321.299 600.14

321.299 600.16

321.300 600.11

321.301 600.11

321.301 600.16

321.302 600.11

321.302 600.14

321.302 600.17

321.302 600.18

321.303 600.11

321.303 600.15

321.304 600.11

321.304 600.19

321.305 600.20

321.305 600.21

321.306 600.11

321.306 600.23

321.307 600.24

321.308 600.25

321.309 600.26

321.309 600.27

321.310 600.28

321.311 600.29

321.311 600.60

321.312 600.30

321.313 600.31

321.314 600.32

321.314 600.33

321.315 600.33

321.316 600.34

321.317 600.33

321.318 600.33

321.318 600.34

321.319 600.35

321.320 600.37

321.321 600.35

321.321 600.38

321.322 600.35

321.322 600.39

321.323 600.22

321.324 600.40

321.324 600.41

321.324 600.42

321.326 600.49

321.327 600.51

321.328 600.48

321.329 600.52

321.330 600.47

321.331 600.50

321.333 600.54

321.340 600.55

321.341 600.56

321.342 600.57

321.343 600.58

321.344 600.58

321.345 600.38

321.350 600.38

321.353 600.59

321.354 600.60

321.355 600.61

321.358 600.62

321.360 600.62

321.361 600.63

321.362 600.64

321.363 600.65

321.364 600.66

321.365 600.67

321.366 600.68

321.369 600.69

321.369 600.70

321.370 600.69

321.370 600.70

321.372(3) 600.77

321.372(3) 600.78

321.372(4) 600.77

321.377 600.6

321.381 600.99

321.383 600.87

321.383 600.88

321.383(2) 600.88

321.384 600.81

321.384 600.84

321.384 600.85

321.384 600.86

321.384 600.87

321.384 600.92

321.384(1) 600.79

321.384(2) 600.79

321.385 600.80

321.386 600.81

321.387 600.82

321.387 600.84

321.388 600.82

321.389 600.82

321.390 600.82

321.392 600.83

321.393 600.83

321.394 600.84

321.395 600.85

321.396 600.85

321.397 600.86

321.398 600.87

321.402 600.81

321.402 600.89

321.403 600.81

321.403 600.90

321.404 600.34

321.404 600.91

321.405 600.91

321.409 600.99

321.409(1) 600.80

321.409(2) 600.80

321.415 600.79

321.415 600.81

321.415 600.92

321.417 600.79

321.418 600.79

321.418 600.81

321.419 600.79

321.419 600.81

321.420 600.79

321.420 600.81

321.421 600.79

321.421 600.81

321.422 600.81

321.422 600.82

321.422 600.93

321.423 600.81

321.423 600.93

321.423(6) 600.88

321.430(1) 600.94

321.430(2) 600.94

321.430(3) 600.94

321.430(4) 600.94

321,431(1)(a),(b 600.95

321.431(2) 600.95

321.431(3) 600.95

321.431(4) 600.95

321.431(5) 600.95

321.432 600.96

321.432 600.97

321.433 600.41

321.433 600.42

321.433 600.99

321.434 600.99

321.437 600.99

321.438 600.98

321.439 600.99

321.440 600.99

321.445 600.100

321.446 600.100

Introduction

The following rules of law are applicable to all of the instructions
relating to the rules of the road unless otherwise noted in a particular
instruction:

1\. Absent legal excuse, a violation of statutory rules of the road or
ordinances constitutes negligence per se or as a matter of law.

# Authority

[Machmer v. Fuqua]{.underline}, 231 N.W.2d 606, 607, (Iowa 1975)

[Bangs v. Keifer]{.underline}, 174 N.W.2d 372, 374 (Iowa 1970)

2\. Instating that a violation of a statutory provision is negligence,
the rule should be clearly applied to the record.

# Authority

[McCoy v. Miller]{.underline}, 257 Iowa 1151, 1155, 136 N.W.2d 332, 335
(1965)

Speed Restrictions

[]{#a6001 .anchor}**600.1 Reasonable And Proper**. Any person driving a
vehicle on a highway shall drive at a careful speed not greater than nor
less than is reasonable and proper, having due regard for the traffic,
surface and width of the highway and of any other existing conditions.

A violation of this law is negligence.

# Authority

#### [Iowa Code]{.underline} section 321.285

# Comment

> *Note: See: [Iowa Code]{.underline} section 321.294 relating to
> minimum speed regulation.*

12/86

[]{#a6002 .anchor}**600.2 Speed in Excess Of Statutory Limits**. At the
time and place, and with the motor vehicle involved in this case, any
speed over \_\_\_\_\_\_\_\_\_\_\_\* miles per hour was unlawful.

A violation of this law is negligence.

# Authority

#### [Iowa Code]{.underline} section 321.285

# Comment

*Note: \*Speeds for insertion are:*

1\. Business District - 20 miles per hour.

*2. Residence District - 25 miles per hour*

*3. School District - 25 miles per hour.*

> *4. Towing Vehicle - 40 or 55 miles per hour, depending on nature of
> towed*

*5. Suburban District - 45 miles per hour.*

> *6. Rural District - 55 miler per hour from sunset to sunrise, 55
> miles per hour from sunrise to sunset.*
>
> 7\. Fully controlled access, divided, multi-laned highways including
> interstate highways - urban 55 miles per hour if posted - rural 65
> miles per hour.
>
> Note: See: [Iowa Code]{.underline} section 321.285(5) for exceptions
> when the maximum speed may be 50 miles per hour on secondary roads not
> surfaced with concrete or asphalt or as posted by appropriate signs.
> Also see: [Iowa Code]{.underline} section 321.285(6) relating to 65
> mile per hour speed limit on some highways including interstate
> highways.

6/01

[]{#a6003 .anchor}**600.3 Assured Clear Distance Ahead.** No person
shall drive any vehicle on a highway at a speed greater than will permit
them to stop within the assured clear distance ahead. The words \"within
the assured clear distance ahead\" mean the distance from which
noticeable objects, reasonably expected or anticipated to be upon the
highway, may be seen.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.285*

*[Snook v. Long]{.underline}, 241 Iowa 665, 668; 42 N.W.2d 76, 77
(1950)*

12/86

[]{#a6004 .anchor}**600.4 Interstate And Comparable Highways.**

1.  At the time and place in question the speed of any vehicle over
    \[55\] \[65\] miles per hour was unlawful.

2.  At the time and place in question the speed of any vehicle less than
    40 miles per hour, road conditions permitting, was unlawful.

A violation of this law is negligence

# Authority

[Iowa Code]{.underline} section 321.285(6)

# 

# Comment

*Note: Use paragraph 1. or 2. as may apply to the case*.

6/01

[]{#a6005 .anchor}**600.5 Truck Speed Limits.** This instruction has
been deleted.

##### Authority

[93 Acts]{.underline}, chapter 47, section 14.

[]{#a6006 .anchor}**600.6 Bus Speed Limits.** This Instruction has been
deleted.

# Authority

[93 Acts]{.underline}, chapter 47, section 14. 6/01

[]{#a6007 .anchor}**600.7 Control - Common Law.** A driver must have his
or her vehicle under control. It is under control when the driver can
guide and direct its movement, control its speed and stop it reasonably
fast.

A violation of this duty is negligence.

# Authority

*[Matuska v. Bryant]{.underline}, 260 Iowa 726, 150 N.W.2d 716 (1967)*

6/92

[]{#a6008 .anchor}**600.8 Control Of Vehicle - Statutory.** A driver
operating a vehicle must have it under control and shall reduce its
speed to a reasonable and proper rate when approaching and traveling
through a crossing or intersection of highways.

A violation of this law is negligence.

# Authority

[Iowa Code]{.underline} section 321.288(3)

##### Comment

> Note: See: [Iowa Code]{.underline} section 321.288 (1) through (6) for
> other applicable fact situations.
>
> 6/01

[]{#a6009 .anchor}**600.9 Duty To Use Ordinary Care Where Conditions
Require Less Than Statutory Speed Limits**. Road conditions may be such
that speed should be less than the legal limit. Traffic laws call for
the minimum of care and not the maximum. A driver should not operate a
vehicle up to the legal speed limit of \_\_\_\_\_\_\_\_\_\_\_\_\_\_ if
the circumstances are such that ordinary care requires a lesser speed.

A violation of this law is negligence.

##### Authority

*[Richards v. Begenstos]{.underline}, 237 Iowa 398, 408; 21 N.W.2d 23
(1945)*

*[Iowa Code]{.underline} section 321.285*

*12/86*

***Driving On Right Side Of Road - Overtaking And Passing, Etc.***

[]{#a60010 .anchor}**600.10 Meeting And Turning To Right.** Vehicles
meeting each other on any road shall yield one-half of the road by
turning to the right.

A violation of this law is evidence of negligence.

# Authority

*[Iowa Code]{.underline} section 321.298*

*[McMaster v. Hutchins]{.underline}, 255 Iowa 39, 120 N.W.2d 509 (1963)*

# Comment

> *Note: The use of this instruction may be infrequent in view of the
> broad coverage relative to driving on the right-hand side of the road
> in [Iowa Code]{.underline} section 321.297, which also should be read
> for any applicable exceptions.*

*Note: Also applies to persons on horseback.*

12/86

[]{#a60011 .anchor}**600.11 Driving On Right Half Of Road -
Exceptions.** A vehicle shall be driven on the right half of the road on
all roads of sufficient width, except as follows:

1\. When overtaking and passing another vehicle going in the same
direction under the rules governing such movement.

2\. When an obstruction makes it necessary to drive to the left of the
center of the road. Any person doing so shall yield the right-of-way to
all vehicles traveling in the opposite direction upon the open portion
of the road within a distance which is an immediate danger.

3\. On a road divided into three marked lanes for traffic under the
rules which apply.

4\. On a road restricted to one-way traffic.

A violation of this law is negligence.

# Authority

[Iowa Code]{.underline} section 321.297(1)

# Comment

Note: Use paragraphs 1., 2., 3., or 4. as may apply to the case

For the rules mentioned in paragraph 1., see [Iowa Code]{.underline}
sections 321.299 - 321.304.

For the rules mentioned in paragraph 3., see [Iowa Code]{.underline}
section 321.306.

[]{#a60012 .anchor}**600.12 Driving On The Right-Hand Side Of Road -
Slow Moving Vehicle.** Any vehicle going at less than the normal speed
of traffic at the time and place and under the existing conditions shall
be driven in the right-hand lane, if available, or as close as possible
to the right-hand curb or edge of the road, except when overtaking and
passing another vehicle going in the same direction, or when preparing
for a left turn at an intersection, an alley, private road or driveway.

A violation of this law is negligence.

# Authority

[Iowa Code]{.underline} section 321.297(2)

[]{#a60013 .anchor}**600.13 Driving On Right-Hand Side Of Road - When
Four Or More Lanes And Two-Way Traffic.** A vehicle shall not be driven
to the left of the center line of any road having four or more lanes for
moving traffic and providing for two-way movement of traffic, except as
follows:

1\. When authorized by official traffic-control devices designating
certain lanes to the left side of the center of the road for use by
traffic not otherwise permitted to use such lanes.

2\. When an obstruction exists making it necessary to drive to the left
of the center of the road, provided, any person so doing shall yield the
right-of-way to all vehicles traveling in the opposite direction upon
the open portion of the road within such distance as to constitute an
immediate danger.

3\. In making a left turn into or from an alley, private road, or
driveway.

A violation of this law is negligence.

# Authority

[Iowa Code]{.underline} section 321.297(3)

# Comment

Note: Use paragraph 1., 2., or 3. as may apply to the case.

[]{#a60014 .anchor}**600.14 Overtaking A Vehicle.** The driver of a
vehicle overtaking another vehicle going in the same direction shall
pass to the left at a safe distance, and shall not drive to the right
side of the road until safely clear of the overtaken vehicle.

A violation of this law is negligence.

# Authority

[Iowa Code]{.underline} section 321.299.

# Comment

Note: See [Iowa Code]{.underline} section 321.302 for exceptions where
passing on right is permitted.

[]{#a60015 .anchor}**600.15 Limitations On Overtaking On The Left.** A
vehicle shall not be driven to the left side of the center of the road
in overtaking and passing another vehicle going in the same direction
unless the left side is clearly visible and free of oncoming traffic for
a sufficient distance ahead to permit the overtaking and passing to be
completely made without interfering with the safe operation of a vehicle
approaching from the opposite direction or a vehicle overtaken.

The overtaking vehicle shall return to the right-hand side of the road
before coming within three hundred feet\* of a vehicle approaching from
the opposite direction.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.303*

# Comment

Note: \*One hundred feet when the speed limit is thirty miles per hour
or less.

12/86

[]{#a60016 .anchor}**600.16 Duty Of Passed Vehicle.** The driver of a
vehicle being passed shall give way to the right in favor of an
overtaking vehicle and shall not increase the vehicle\'s speed until
completely passed by the overtaking vehicle.

A violation of this law is negligence

# Authority

*[Iowa Code]{.underline} section 321.299*

6/00

[]{#a60017 .anchor}**600.17 Overtaking On The Right - Left-Turning
Vehicle.** The driver of a vehicle may overtake and pass on the right of
another

vehicle which is making or about to make a left turn. However, no person
shall drive off the pavement or on the shoulder of the road in
overtaking or passing on the right.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.302*

12/86

[]{#a60018 .anchor}**600.18 Overtaking On The Right - Multi-Lane
Highway.** The driver of a vehicle may overtake and, allowing sufficient
clearance, pass another vehicle going in the same direction, either on
the left or on the right on a road with unobstructed pavement of
sufficient width for four or more lanes of moving traffic when the
movement can be made in safety. No person shall drive off the pavement
or upon the shoulder of the road in overtaking or passing on the right.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.302*

12/86

[]{#a60019 .anchor}**600.19 Prohibited Passing.** No vehicle shall
overtake and pass another vehicle, or at any other time be driven to the
left side of the road under the following conditions:

1.  When approaching the crest of a grade or on a curve in the highway
    where the driver\'s view along the highway is obstructed for a
    distance of approximately 700 feet.

2.  When approaching within 100 feet of any narrow bridge, viaduct, or
    tunnel, when sign posted, or when approaching within 100 feet of or
    traveling through any intersection or railroad grade crossing.

3.  Where official signs are in place directing that traffic keep to the
    right, or a distinctive center line or off-center line is marked
    which directs traffic as declared in the sign manual adopted by the
    department of transportation.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.304*

## Comment

Note: Use paragraphs 1., 2. or 3. as may apply to the case.

06/01

[]{#a60020 .anchor}**600.20 One-Way Roads.** On a road marked and signed
for one-way traffic, a vehicle shall be driven only in the direction
designated.

A violation of this law is negligence.

Authority

Iowa Code section 321.305

[]{#a60021 .anchor}**600.21 Traffic Islands.** A vehicle traveling by a
traffic island shall be driven only to the right of the island.

A violation of this law is negligence.

Authority

Iowa Code section 321.305

[]{#a60022 .anchor}600.22 Backing Vehicle On Highway. No person shall
drive a vehicle on a highway in reverse unless it can be done with
reasonable safety. The driver shall yield the right of way to any
approaching vehicle on the highway or intersecting highway which is
close enough to constitute an immediate danger.

A violation of this law is negligence.

Authority

Iowa Code section 321.323

[]{#a60023 .anchor}600.23 Roads Laned For Traffic. Whenever any road has
been divided into three or more clearly marked lanes for traffic, the
following rules in addition to all other consistent rules shall apply:

1\. A vehicle shall be driven as nearly as possible entirely within a
single lane and shall not be moved from the lane until the driver has
seen that the movement can be made with safety.

2\. On a road which is divided into three lanes, a vehicle shall be
driven in the center lane only when overtaking and passing another
vehicle where the road is clearly visible and the center lane is clear
of traffic within a safe distance, or in preparation for a left turn, or
where the center lane is assigned exclusively to traffic moving in the
direction the vehicle is going and is signed accordingly.

3\. Official signs may be posted directing slow-moving traffic to use a
designated lane, or assigning specific lanes to traffic moving in the
same direction. Drivers of vehicles shall obey the directions of the
sign.

A violation of this law is negligence.

Authority

Iowa Code section 321.306

Comment

Note: Use paragraphs 1., 2. or 3. as may apply to the case.

[]{#a60024 .anchor}600.24 Following Too Closely. The driver of a vehicle
shall not follow another vehicle closer than is reasonable, considering
the speed of the vehicles, the traffic and the condition of the highway.

A violation of this law is negligence.

Authority

Iowa Code section 321.307

[]{#a60025 .anchor}600.25 Trucks And Towed Vehicles - Distance
Requirements. The driver of a \[truck\] \[vehicle\] towing another
vehicle outside of a business or residence district shall not follow
within 300 feet of another \[truck\] \[vehicle\] towing another vehicle.
This, however, shall not prevent overtaking and passing, nor shall it
apply to any lane specifically designated for use of motor trucks.

A violation of this law is negligence.

Authority

Iowa Code section 321.308

[]{#a60026 .anchor}600.26 Convoys - Distance Requirements. The driver of
any vehicle pulling or towing another motor vehicle in convoy or caravan
shall maintain at least 500 feet between the units of the convoy or
caravan.

A violation of this law is negligence.

Authority

Iowa Code section 321.309

[]{#a60027 .anchor}**600.27 Drawbar Or Towing Arm - Required
Equipment.**

This instruction has been deleted.

6/01

[]{#a60028 .anchor}**600.28 Limitations On Towing.** A driver of a
vehicle shall not tow any four-wheeled trailer with a steering axle, or
more than one trailer or semitrailer, or both in combination.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.310*

# Comment

> *Note: See: [Iowa Code]{.underline} section 321.310 for exceptions for
> a motor home, multipurpose vehicle, motor truck, truck tractor, or
> road tractor and for farm tractors towing four-wheeled trailers, farm
> tractors and motor vehicles towing implements of husbandry, and wagon
> box trailers used by farmers in transporting produce, farm products or
> supplies hauled to and from market.*

12/86

## Turning And Starting And Signals On Stopping And Turning

[]{#a60029 .anchor}**600.29 Turning At Intersections.**

1.  The driver of a vehicle intending to turn right at an intersection
    shall make both the approach for a right turn and the turn as close
    as practical to the right-hand curb or edge of the road.

2.  The driver of a vehicle intending to turn left at an intersection
    shall approach the turn in that portion of the right half of the
    road nearest the center line. After entering the intersection, the
    left turn shall be made by leaving the intersection to the right of
    the center line of the road being entered.

3.  The driver of a vehicle intending to make a left turn at an
    intersection from a two-way street onto a one-way street shall
    approach the turn in that portion of the right half of the road
    nearest the center line by passing to the right of the center line
    where it enters the intersection.

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4.  The driver of a vehicle intending to turn left from a one-way street
    onto a two-way street at an intersection shall make the turn by
    leaving the intersection and passing to the right of the center line
    of the street being entered.

A violation of this law is negligence

# Authority

*[Iowa Code]{.underline} section 321.311*

# Comment

> *Note: Paragraph 4 of section 321.311 allows local authorities to
> modify any of the above rules by markers, buttons or signs.*

*Note: Use paragraphs 1., 2., 3. or 4. as may apply to the case.*

6/00

[]{#a60030 .anchor}**600.30 Turning On Curve Or Crest Of Hill.** A
driver shall not make a U-turn \[upon a curve\] \[on the approach to a
curve\] or \[near the crest of a grade or hill\], where the vehicle
cannot be seen by the driver of any other vehicle approaching from
either direction within 500 feet.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.312*

12/86

[]{#a60031 .anchor}**600.31 Starting Parked Vehicle.** A driver shall
not move a vehicle which is stopped, standing, or parked unless the
movement can be made with reasonable safety.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.313*

12/86

[]{#a60032 .anchor}

**600.32 Turning From A Direct Course.** A driver shall not turn a
vehicle from a direct course on a highway unless the movement can be
made with reasonable safety. \[And then only after sounding the horn if
any pedestrian may be affected by the movement.\]\*

A violation of this law is negligence.

# 

# 

# Authority

*[Iowa Code]{.underline} section 321.314*

# Comment

> *Note: See[: Ruby vs. Easton]{.underline}, 207 N.W.2d 10 (Iowa 1973)
> for definition of \"direct course.\"*
>
> *Note: \*Use only if a pedestrian is involved. [Crow vs.
> Weller]{.underline}, 197 N.W.2d 352 (Iowa 1972).*

12/86

[]{#a60033 .anchor}**600.33 When Signal Required - Continuous - Methods
Of Giving.** A driver shall not turn a vehicle from a direct course on a
road unless the movement can be made with reasonable safety and after
giving an appropriate signal if any other vehicle may be affected by the
movement. The signal to turn \[right\] \[left\] must be continuously
given during at least the last 300 feet\* travelled by the vehicle
before turning. The signal may be given by hand or by a mechanical or
electrical turn signal. Turn signals or turn signal devices shall
display a white, yellow or amber lamp or lamps on the front of the
vehicle, and a red, yellow or amber lamp or lamps on the rear of the
vehicle. These signal devices shall be capable of clearly indicating any
intention to turn either to the right or to the left, and shall be
visible and understandable during both daylight and darkness from a
distance of at least 100 feet from the front and rear of the vehicle.
Hand signals shall be given: \[by extending the hand and arm upward from
the left side of the vehicle for a right-hand turn\] \[by extending hand
and arm straight out from the left side of the vehicle for a left-hand
turn\].

A violation of this law is negligence.

##### Authority

*[Iowa Code]{.underline} sections 321.314, 321.315, 321.317, 321.318*

##### Comment

> *Note: See: [Ruby vs. Easton]{.underline}, 207 N.W.2d 10 (Iowa 1973)
> for definition of \"direct course.\"*

*Note: \*100 feet when the speed limit is 45 m.p.h. or less.*

12/86

[]{#a60034 .anchor}**600.34 Stopping.** A driver shall not stop or
suddenly decrease the speed of a vehicle without first giving an
appropriate signal to the driver of any vehicle immediately to the rear
when there is opportunity to give the signal. The signal shall be given
by either extending the hand and arm downward from the left side of the
vehicle or by a brake light constructed and located on the vehicle as to
give a signal of intention to stop. The brake light shall be red or
yellow and shall be plainly visible and understandable in normal
sunlight and at night from a distance of 100 feet to the rear. The brake
light shall not project a glaring or dazzling light.\*

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} sections 321.316, 321.318, 321.404*

12/86

[]{#a60035 .anchor}**600.35** **Approaching Or Entering Intersection.**
When two vehicles enter an intersection at approximately the same time
so that if both proceed without regard to the other a collision is
reasonably to be expected, the vehicle on the left shall yield the
right-of-way to the vehicle on the right.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.319*

# Comment

> *Note: The foregoing rule is modified at through highways and
> otherwise as stated in [Iowa Code]{.underline} chapter 321, See:
> sections 321.319, 321.321 and 321.322.*
>
> Note: For definition of \'intersection\' and \'right-of-way\' see
> [Iowa Code]{.underline} sections 321.1(33) and 321.1(64).
>
> Note: See: [Glandon vs. Fiala]{.underline}, 261 Iowa 750, 156 N.W.2d
> 327 (1968) which states that possession of directional right-of-way is
> not an absolute right but is rather a relative one and is qualified by
> statute requiring a person operating the motor vehicle to have it
> under control and reduce its speed to a reasonable and proper rate
> when approaching and traversing an intersection.

6/01

[]{#a60036 .anchor}**600.36 Traffic Control Signals.** When signals
display different colored lights:

1.  Vehicles facing a signal displaying a green light may go straight,
    turn right or turn left through the intersection unless specifically
    prohibited. However, vehicles shall yield the right-of-way to other
    vehicular and pedestrian traffic lawfully within the intersection at
    the time the signal is exhibited.

2.  Vehicles facing a signal displaying a circular yellow or yellow
    arrow light are warned that the related green movement is stopped
    and vehicles should no longer proceed into the intersection and
    shall stop. If the stop cannot be made safely, the vehicle may go
    cautiously through the intersection.

3.  Vehicles facing a signal displaying a circular red light shall stop
    and remain stopped \[until an indication to proceed by signal is
    shown\] \[the signal is green\]. However, unless prohibited by a
    sign, vehicles may cautiously enter the intersection to make a right
    turn from the right lane of traffic, or a left turn from the left
    lane of a one-way street to left-most lane of traffic on a one-way
    street. Any turn shall be made so that it does not interfere with
    other vehicles or pedestrians lawfully using the intersection.

4.  Vehicles facing a signal displaying a green arrow light alone or
    with another official control signal may cautiously enter the
    intersection and go in the direction indicated by the arrow, but
    shall yield the right-of-way to other vehicles and pedestrians
    lawfully within the intersection. Stopping means stopping at the
    first opportunity at either the clearly marked stop line or before
    entering the cross-walk or before entering the intersection.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.257*

# Comment

*Note: Use paragraphs 1., 2., 3. or 4. as they may apply to the case.*

> *Note: For application of [Iowa Code]{.underline} section 321.257 to
> pedestrians see Instruction 600.45.*

12/86

[]{#a60037 .anchor}**600.37 Left Turns - Yielding.** The driver of a
vehicle intending \[to turn left within an intersection\] \[into an
alley\] \[private road\] \[driveway\] shall yield the right-of-way to
all vehicles approaching from the opposite direction which are at the
intersection or so close to the intersection as to be an immediate
danger. Then the driver, having yielded and having given the required
signal, may make the left turn.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.320*

12/86

[]{#a60038 .anchor}**600.38 Entering Through Highways.** The driver of a
vehicle shall stop or yield at the entrance to a through highway and
shall yield the right-of-way to other vehicles which have entered the
intersection from the through highway or which are approaching so
closely on the through highway that they are a danger. Then the driver,
having yielded, may proceed to cautiously and carefully enter the
through highway.

A violation of this law is negligence.

# Authority

*[Iowa Code]{.underline} section 321.321*

# Comment

> Note: See: [Iowa Code]{.underline} section 321.1(81) for definition of
> \"through highway,\" section 321.345 for \"stop at through highway\",
> and section 321.350 for \"primary roads\" as \"through highways\".

6/01

[]{#a60039 .anchor}**600.39 Vehicles Entering Stop Or Yield
Intersection.**

1.  The driver of a vehicle approaching a stop intersection indicated by
    a stop sign or a flashing red light shall stop at the first
    opportunity at either the clearly marked stop line, or before
    entering the crosswalk, or before entering the intersection, or at a
    point nearest the intersecting road where the driver has a view of
    approaching traffic on the intersecting road before entering the
    intersection. Before going ahead, the driver shall yield the
    right-of-way to any vehicle in the intersecting road which has
    entered the intersection or which is approaching so closely that it
    is an immediate danger during the time the driver is moving through
    the intersection.

2.  The driver of a vehicle approaching a yield sign shall slow to a
    speed reasonable for the existing conditions. If required for
    safety, it shall stop at the first opportunity at either the clearly
    marked stop line, before entering the cross-walk, before entering
    the intersection, or at a point nearest the intersecting road where
    the driver has a view of approaching traffic. After slowing or
    stopping, the driver shall yield the right-of-way to any vehicle on
    the intersecting road which has entered the intersection and is
    approaching so closely as to be an immediate danger while the driver
    is moving through the intersection.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} sections 321.322, 321.257(e)*

## Comment

Note: Use paragraphs 1. or 2. as may apply to the case. *6/01*

[]{#a60040 .anchor}**600.40 Operation On Approach Of Emergency
Vehicles.** Upon the immediate approach of \[an emergency vehicle
displaying a red light or red and blue lights\] \[an emergency vehicle
of a fire department displaying a blue light\] or \[an emergency vehicle
is giving an audible signal by siren, exhaust whistle or bell\] the
driver of every other vehicle shall yield the right-of-way and shall
immediately drive to a position parallel to, and as close as possible
to, the right-hand edge or curb of the highway, clear of any
intersection. The driver shall stop and remain stopped until the
emergency vehicle has passed, except when otherwise directed by a police
officer. \[\'Red light\'\] \[\'Blue light\'\] means a lighting device
that, when illuminated, exhibits a solid flashing \[red\] \[blue\]
light.

A violation of this law is negligence.

## Authority

## *[Iowa Code]{.underline} section 321.324*

## Comment

## Note: See: [Iowa Code]{.underline} section 321.1(6) and 761 [Iowa Administrative Code]{.underline} 451.2(321), for definition of emergency vehicle, and [Iowa Code]{.underline} section 321.231 for duties of drivers 

##  *6/01*

[]{#a60041 .anchor}**600.41** **Any Authorized Emergency Vehicle**. When
\[responding to an emergency call\] \[pursuing an actual or suspected
perpetrator of a felony\] \[responding to an incident dangerous to the
public\] \[responding to a fire alarm\] the driver of an authorized
emergency vehicle may \[park\] \[disregard minimum distances for
signaling before turning\], unless doing so would be reckless.

If you find the defendant was driving an authorized emergency vehicle
and was \[responding to an emergency call\] \[pursuing an actual or
suspected felon\] \[responding to an incident dangerous to the public\]
\[responding to a fire alarm\] when the driver \[parked\] \[failed to
signal for the required distance before turning\], then you will proceed
to Instruction No \_\_\_, to determine if the defendant was reckless,
and answer the appropriate interrogatory in the verdict form.

**Authority**

*[Iowa Code]{.underline} section 321.231(2)*

*[Bell v. Comm. Ambulance Ser. Agency]{.underline}, 579 N.W.2d 330 (Iowa
1998)*

*[Hoffert v. Luze]{.underline}, 578 N.W. 2d 681 (Iowa 1998)*

####### Comment

Caveat: The Iowa Supreme Court has not specifically addressed the issue

of whether any case not governed by Chapter 321.231 would fall within
the

immunity found in Chapter 670.4(11) or, alternatively, would be subject

to common law negligence rules.

Also, the committee does not take any position on which party has the
burden of

> proving the applicability of Chapter 321.231. See, [Connolly v. Dallas
> County]{.underline}, 465 N.W.2d 875 (Iowa 1991).

Note: If the operation of the emergency vehicle does not fall within the

immunities granted by [Iowa Code]{.underline} section 321.231(2)(a) or
(b), this

instruction should not be used.

Note: If the emergency vehicle is a fire department, police or ambulance

vehicle, see 600.42.

Note: Use only the bracketed alternatives supported by the evidence.

Note: Use a marshaling instruction for recklessness in connection with

this instruction.

Note: If there is a fact question regarding whether or not the emergency

vehicle was using either an audible or visual signal at the time of the

accident see Chapter 321.231(4) regarding the effect on these
immunities.

6/00

[]{#a60042 .anchor}**600.42 Fire Department, Police And Ambulance
Vehicles**. When \[responding to an emergency call\] \[pursuing an
actual or suspected perpetrator of a felony\] \[responding to an
incident dangerous to the public\] \[responding to a fire alarm\], the
driver of a \[fire department vehicle\] \[police vehicle\] \[ambulance\]
may \[park\] \[disregard minimum distances for signaling before
turning\] \[proceed past a stop light or stop sign\] \[exceed the
maximum speed limit\] unless doing so would be reckless.

If you find the driver of the \[fire department vehicle\] \[police
vehicle\] \[ambulance\] was \[responding to an emergency call\]
\[pursuing an actual or suspected felon\] \[responding to an incident
dangerous to the public\] \[responding to a fire alarm\] when the driver
\[parked\] \[failed to signal for the required distance before turning\]
\[proceeded past a stop light or stop sign\] \[exceeded the maximum
speed limit\] then you will proceed to Instruction No. \_\_\_ to
determine if the defendant was reckless, and answer the appropriate
interrogatory in the verdict form.

**Authority**

[Iowa Code]{.underline} section 321.231(2), (3)

[Bell v. Community Ambulance Service Agency for Northern Des Moines
County]{.underline},

579 N.W. 2d 330 (Iowa 1998)

[Hoffert v. Luze]{.underline}, 578 N.W.2d 681 (Iowa 1998)

**Comment**

> Caveat: The Iowa Supreme Court has not specifically addressed the
> issue of whether any case not governed by Chapter 321.231 would fall
>
> within the immunity found in Chapter 670.4(11) or , alternatively,
> would be subject to common law negligence rules.
>
> Also the committee does not take any position on which party has the
> burden of proving the applicability of Chapter 321.231. See [Connolly
> v]{.underline}. [Dallas County]{.underline} 465 N.W.2d 875 (Iowa
> 1991).
>
> Note: If the operation of the emergency vehicle does not fall within
> the immunities granted by [Iowa Code]{.underline} section 321.231
> (2)(a) or (b) or (3)(a) or (b) this instruction should not be used.
>
> Note: If the emergency vehicle is other than a fire department, police
> or ambulance vehicle see 600.41.
>
> Note: Use only the bracketed alternative supported by the evidence.
>
> Note: Use a marshaling instruction for recklessness in connection with
> this instruction.
>
> Note: If there is a fact question regarding whether or not the vehicle
> was using either audible or visual signal at the time of the accident,
> please see Chapter 321.231(4) regarding the effect on the these
> immunities.
>
> 6/00

[]{#a60043 .anchor}**600.43 Reckless.** "Reckless" means intentionally
doing an unreasonable act in disregard of a risk that is known or so
obvious that it should have been known making it highly probable that
harm would follow.

## Authority

*[Hoffert v. Luze]{.underline}, 578 N.W.2d 681 (Iowa 1998)*

###### Pedestrians\' Rights And Duties

[]{#a60045 .anchor}**600.45 Traffic Control Signals - Pedestrians.**
Signal lights shall regulate pedestrian traffic in the following manner:

1.  A pedestrian facing a steady yellow light at an intersection is
    warned that there is insufficient time to cross the intersection,
    and any pedestrian starting to cross the road shall yield the right
    of way to vehicles.

2.  A pedestrian facing a red light shall not enter the road unless the
    pedestrian can safely cross the road without interfering with
    vehicular traffic.

3.  A \'don\'t walk\' light means pedestrian traffic facing the signal
    shall not start to cross the road in the direction of the signal,
    and pedestrian traffic in the crossing shall proceed to a safety
    zone.

4.  A \'walk\' light means that pedestrian traffic facing the signal may
    proceed to cross the road in the direction of the signal.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.257*

## Comment

*Note: Use paragraphs 1., 2., 3., or 4. as may apply to the case.*

> *Note: For application of [Iowa Code]{.underline} section 321.257 to
> vehicles, see Instruction 600.36.*

6/99

[]{#a60046 .anchor}**600.46 Crosswalk - Definition.** The term crosswalk
means:

1.  Any portion of a road distinctly marked for pedestrian crossing by
    lines or other markings on the surface; or

2.  The portion of the road connecting the sidewalks on either side of
    the intersection.

## Authority

*[Iowa Code]{.underline} section 321.1(16)*

6/01

[]{#a60047 .anchor}**600.47 Pedestrian\'s Duty Of Care In A Crosswalk.**
A pedestrian in a crosswalk may rely upon an approaching driver\'s duty
to yield, but the pedestrian still must exercise ordinary care to avoid
being struck by a motor vehicle which was seen or should have been seen.
Whenever possible, pedestrians shall walk on the right half of the
crosswalk.\*

A violation of this law is negligence.

## Authority

*[Van Tresse v. Holloway]{.underline}, 234 N.W.2d 876, 878 (Iowa 1975)*

*[Iowa Code]{.underline} section 321.330*

## Comment

Note: \*Delete last sentence if this is not an issue.

12/86

[]{#a60048 .anchor}**600.48 Crossing At Other Than Crosswalk.**

1.  Any pedestrian crossing a road at any point other than a crosswalk
    shall yield the right of way to all vehicles on the road.

2.  Any pedestrian crossing a road where a \[pedestrian tunnel\] or
    \[over-head pedestrian crossing\] has otherwise been provided shall
    yield the right of way to all vehicles on the road.

3.  Where signals are in operation at any place not an intersection, all
    pedestrians are required to cross within a marked crosswalk.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.328*

## Comment

*Note: Use paragraphs 1., 2., or 3. as may apply to the case.*

> *Note: See: [Iowa Code]{.underline} section 321.1(16) for definition
> of \"crosswalk\" and Instruction 600.49.*
>
> *[Hedges v. Condor]{.underline}, 166 N.W.2d 844 (Iowa 1969).
> \"Crossing a roadway\" defined.*

6/01

[]{#a60049-1 .anchor}**600.49 Pedestrians On Left.** Pedestrians shall
walk on or along the left side of the highway.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.326*

## Comment

Note: See: [Lawson v. Fordyce]{.underline}, 237 Iowa 28, 21 N.W.2d 69
(1946)

12/86

[]{#a60050 .anchor}**600.50 Pedestrians Soliciting Rides.** A pedestrian
may hitchhike, but may not stand on any portion of the road ordinarily
used for vehicular traffic.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.331*

12/86

[]{#a60051 .anchor}**600.51 Pedestrian\'s Right Of Way.** Where signals
are not \[in place\] or \[in operation\] the driver of a vehicle shall
yield the right of way to a pedestrian, \[slowing down\] or \[stopping\]
if necessary to yield to a pedestrian crossing the road within a
crosswalk.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.327*

12/86

[]{#a60052 .anchor}**600.52 Duty Of Driver.**

1.  The driver of a vehicle is required to exercise ordinary care to
    avoid hitting a pedestrian on a road and shall give warning by
    sounding the horn when necessary.

2.  The driver of a vehicle shall exercise ordinary care upon observing
    \[any child\] or \[any confused\] or \[any incapacitated\] person on
    a road.

3.  The driver of a vehicle shall yield the right of way to pedestrian
    workers doing maintenance or construction work on a highway whenever
    the driver is notified of the presence of such workers by a person
    or a warning sign.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.329*

## Comment

Note: Use paragraphs 1., 2., or 3. as may apply to the case.

12/86

[]{#a60053 .anchor}600.53 Duty Of Driver - Child Darting Case. When a
child is in plain view upon a public \[street\] \[highway\] so that the
driver of an automobile sees, or in the exercise of ordinary care should
see the child in time to reduce \[his\] \[her\] speed and have control
of the automobile so as to avoid the child, the driver must realize the
child may act without any care or may suddenly and unexpectedly leave a
place of safety and move into the path of the automobile. This is one of
the circumstances you may consider in determining whether (name) was
exercising ordinary care in the operation of \[his\] \[her\] automobile.

Authority

Fratzke v. Meyer, 398 N.W.2d 200, 202 (Iowa App. 1986)

Comment

Note: The Iowa Supreme Court has not defined \"child\" as used in this
instruction.

The law reflected in the instruction has been applied in favor of a
child adjacent to but not on the traveled way.

Darr v. Porte, 220 Iowa 751; 263 N.W. 240 (1935)

[]{#a60054 .anchor}600.54 White Canes Restricted To Blind Persons - Duty
Of Drivers. The driver of any vehicle who approaches or comes in contact
with a person wholly or partially blind carrying a cane or walking stick
which is \[white or white tipped with red\] \[being led by a guide dog
wearing a harness and walking on either side of or slightly in front of
the blind person\], shall immediately come to a complete stop and take
any necessary precautions to avoid accident or injury to the blind
person.

A violation of this law is negligence.

Authority

Iowa Code section 321.333

Safety Zone

[]{#a60055 .anchor}600.55 Driving Through A Safety Zone. A driver of a
vehicle shall not drive in a safety zone. The term \"safety zone\" means
the area or space officially set apart within a road for the exclusive
use of pedestrians and which is protected or marked or indicated by
adequate signs plainly visible at all times.

A violation of this law is negligence.

Authority

Iowa Code section 321.340

Iowa Code section 321.1(68) - Definition of Safety Zone.

Special Stops Required

[]{#a60056 .anchor}600.56 Obedience To Signal Of Train

1\. The driver of a vehicle approaching a railroad crossing where
warning of the immediate approach of a train is given by \[automatic
signal\] \[crossing gates\] \[a flagperson\] \[otherwise\], shall stop
within fifty feet but not less than fifteen feet from the nearest rail
and shall not proceed until they can do so safely.

2\. The driver of a vehicle shall stop and remain standing and not
travel through a railroad crossing \[when a crossing gate is lowered\]
\[when a flagperson \[gives\]\[continues to give\] a signal of the
approach or passage of a train\].

A violation of this law is negligence.

Authority

Iowa Code section 321.341

Comment

Note: Use paragraphs 1 or 2 as may apply to the case.

[]{#a60057 .anchor}600.57 Stop At Certain Railroad Crossings. The driver
of a vehicle approaching a railroad crossing regulated by a stop sign, a
railroad sign directing traffic to stop, or an official signal
displaying a flashing red or steady circular red light, shall stop
before crossing the railroad at either the clearly marked stop line or
at a point near the crossing where the driver has a clear view of the
approaching railroad traffic.

A violation of this law is negligence.

Authority

Iowa Code section 321.342

[]{#a60058 .anchor}600.58 Certain Vehicles Must Stop. The driver of any
\[motor vehicle carrying passengers for hire\] \[school bus carrying any
school child\] \[any vehicle carrying explosive substances or flammable
liquids or other hazardous materials\] shall stop before crossing at any
railroad track within fifty feet but not less than ten feet from the
nearest rail of the railroad. While stopped the driver shall listen and
look in both directions along the track for any approaching train, and
for signals indicating the approach of a train, and shall not proceed
until it can be done safely.

A violation of this law is negligence.

Authority

Iowa Code section 321.343

Comment

Note: See: Code section for exceptions where police officer or
traffic-control signal directs traffic to proceed.

Note: See: Iowa Code section 321.344 for duties of operators of heavy
equipment at railroad crossings.

Note: See: 49 C.F.R. Section 170-189 (1975) for definition of
\"hazardous material.\"

[]{#a60059 .anchor}600.59 Stop Before Crossing Sidewalk - Right Of Way.

1\. The driver of a vehicle coming out of a private \[road\] \[alley\]
\[driveway\] \[building\] shall stop the vehicle immediately before
driving onto the sidewalk area. Then the driver shall proceed into the
area only when it can be done without danger to pedestrians.

2\. The driver of a vehicle coming out of a \[private road\] \[alley\]
\[driveway\] \[building\] shall stop the vehicle immediately before
driving onto the sidewalk area, and in entering the street shall yield
the right of way to all approaching vehicles.

3\. The driver of a vehicle about to \[enter\] \[cross\] a highway from
a \[private road\] \[driveway\] shall stop the vehicle immediately
before driving onto the highway, and shall yield the right of way to all
approaching vehicles.

A violation of this law is negligence.

Authority

Iowa Code section 321.353

Comment

Note: Use paragraph 1., 2., or 3. as may apply to the case.

Stopping, Standing And Parking

[]{#a60060 .anchor}600.60 Stopping On Traveled Way. A driver of a
vehicle shall not \[stop\] \[park\] \[leave standing\] any vehicle,
whether attended or unattended upon the \[paved\] \[improved\] \[main
traveled\] part of the highway when it is practical to \[stop\] \[park\]
\[leave the vehicle\] off the highway. A clear and unobstructed width of
at least twenty feet of the part of the highway opposite the standing
vehicle shall be left for the free passage of other vehicles and a clear
view of the stopped vehicle must be available from a

distance of two hundred feet in each direction.

A violation of this law is negligence.

Authority

Iowa Code section 321.354

Comment

Note: Applies only to highway outside of a business or residence
district.

Note: See: above Code section for exception concerning school buses.
See: Barrick v. Smith, 248 Iowa 195, 80 N.W.2d 326 (1957).

Note: This section shall not apply to a vehicle making a turn as
provided in Iowa Code section 321.311.

[]{#a60061 .anchor}600.61 Stopping On Traveled Way - Exception -
Disabled Vehicle. The duties required by Instruction \_\_\_\_\_\_\_\_\_
shall not apply to the driver of any vehicle which will not operate
while on the \[paved\] \[improved\] \[main traveled\] portion of a
highway if it is impossible to avoid stopping and temporarily leaving
the unoperable vehicle in that position.

Authority

Iowa Code section 321.355

Meyer v. City of Des Moines, 475 N.W.2d 181 (1991)

Comment

Note: As to \"stopping on traveled way\" and \"disabled vehicle,\" see
Clark v. Umbarger, 247 Iowa 938, 75 N.W.2d 243 (1956); Uhlenhopp v.
Steege, 233 Iowa 368, 7 N.W.2d 195 (1942); Smith v. Pust, 232 Iowa 1194,
6 N.W.2d 315 (1943); Tuhn v. Clark, 241 Iowa 441, 41 N.W.2d 13 (1950).

Note: For definition of \"impossible,\" see McBeth v. Merchants, 248
Iowa 320, 79 N.W. 2d 303 (1956); Henneman v. McCalla, 260 Iowa 60, 148
N.W.2d 447 (1967).

Note: For what is contemplated by \"temporary,\" see Boger v. Kellner,
239 Iowa 1189, 33 N.W.2d 369 (1948); and Reed v. Willison, 245 Iowa
1066, 65 N.W.2d 440 (1954).

[]{#a60062 .anchor}600.62 Stopping, Standing Or Parking. A driver of a
vehicle shall not \[stop\] \[stand\] \[park\] a vehicle:

1\. On a sidewalk, except a bicycle if not prohibited by a local
jurisdiction.

2\. In front of a public or private driveway.

3\. Within an intersection.

4\. Within five feet of a fire hydrant.

5\. On a crosswalk.

6\. Within ten feet from the approach to any \[flashing beacon\] \[stop
sign\]\[traffic-control signal\] located at the side of a road.

7\. \[Between a safety zone and the adjacent curb\] \[within ten feet of
points on the curb immediately opposite the ends of a safety zone,
unless any city indicates a different length by signs or markings.\]

8\. Within fifty feet of the nearest rail of a railroad crossing, except
when parked parallel with the rail and not displaying a red light.

9\. \[Within twenty feet of the driveway entrance to any fire station\]
\[on the side of a street opposite and within seventy-five feet of the
entrance to any fire station entrance when signs are posted.\]

10\. \[Alongside\] \[opposite\] any street \[excavation\]
\[obstruction\] when the \[stopping\] \[standing\] \[parking\] would
obstruct traffic.

11\. On the road side of any vehicle \[stopped\] \[parked\] at the edge
or curb of a street.

12\. On any \[bridge\] \[elevated structure\] on a highway outside of
cities.

13\. At any place where official signs prohibit \[stopping\]
\[parking\].

14\. On any street within the corporate limits of a city when it is
prohibited by ordinance relating to snow and ice removal.

A violation of this law is negligence.

Authority

Iowa Code section 321.358

Comment

Note: Use paragraphs 1. through 14. as may apply to the case.

Note: All the paragraphs of the above section are subject to exception
\"when necessary to avoid conflict with other traffic or in compliance
with the directions of a police officer or traffic-control device.\"

Note: See: Iowa Code section 321.360 as to \"stopping\" at theaters,
hotels and auditoriums.

[]{#a60063 .anchor}600.63 Parking At Right-Hand Curb. Every vehicle
\[stopped\] \[parked\] upon a road having curbs shall be \[stopped\]
\[parked\] with the right-hand wheels parallel to and within eighteen
inches of the right-hand curb.

A violation of this law is negligence.

Authority

Iowa Code section 321.361

Comment

Note: The above section provides for exceptions to the effect that local
authorities by ordinances may permit: 1. left-hand curb parking on
one-way roads; 2. angle or center parking on roads under their
jurisdiction.

Miscellaneous Rules

[]{#a60064 .anchor}600.64 Unattended Motor Vehicle.

1\. No person \[driving\] \[in charge of\] shall leave a parked motor
vehicle without stopping the engine.

2\. No person \[driving\] \[in charge of\] shall leave a parked motor
vehicle on any noticeable slope without effectively setting the brake
and turning the front wheels toward the curb or side of the highway.

A violation of this law is negligence.

Authority

Iowa Code section 321.362

Comment

Note: Use paragraphs 1. or 2. as may apply to the case.

[]{#a60065 .anchor}600.65 Obstruction To Driver\'s View.

1\. No person shall drive a vehicle when \[it is so loaded\] \[there are
more than three people in the front seat\] which \[obstructs the
driver\'s view to the front or sides of the vehicle\] \[interferes with
the driver\'s control over the driving mechanism of the vehicle\].

2\. No passenger in a vehicle shall ride in a position which interferes
with the driver\'s \[view ahead or to the sides\] \[control over the
driving mechanism\] of the vehicle.

A violation of this law is negligence.

Authority

Iowa Code section 321.363

Comment

Note: Use paragraphs 1. or 2. as may apply to the case.

[]{#a60066 .anchor}600.66 Control Of Vehicles - Signals. This
Instruction has been deleted.

Authority

1987 Iowa Acts, chapter 170, section 11

[]{#a60067 .anchor}600.67 Coasting Prohibited. The driver of a motor
vehicle shall not drive with the source of motive power disengaged from
the driving wheels except when disengagement is necessary to stop or to
shift gears.

A violation of this law is negligence.

Authority

Iowa Code section 321.365

[]{#a60068 .anchor}600.68 Crossing Median Strip Or Parking On Fully
Controlled - Access Facilities. The highway, involved in this case, is a
controlled access highway. Therefore, a driver shall not:

1\. Drive a vehicle over, upon, or across a curb, central dividing
section, or other separation or dividing line.

2\. Make a left turn or U-turn at a maintenance cross-over where an
official sign prohibits the turn.

3\. Drive a vehicle except in the proper lane provided for that purpose
and in the proper direction and to the right of the central dividing
curb, separation, section, or line.

4\. Drive a vehicle onto the highway from a local service road.

5\. Stop, park or leave standing any vehicle, whether attended or
unattended, upon the paved portion, the shoulders, or the right of way
except at designated rest areas or in case of an emergency or other dire
necessity.

A violation of this law is negligence.

Authority

Iowa Code section 321.366

Comment

Note: Use paragraphs 1. through 5. as may apply to the case.

Note: Does not apply to a person operating highway maintenance equipment
or an emergency vehicle.

[]{#a60069 .anchor}600.69 Putting Debris On Highway.

1\. No person shall throw or deposit on any highway any glass bottle,
glass, nails, tacks, wire, cans, trash, garbage, rubbish, litter, offal,
or any other debris.

2\. No person shall throw or deposit on any highway any substance likely
to injure any person, animal or vehicle using the highway.

A violation of this law is negligence.

Authority

Iowa Code section 321.369

Comment

Note: Use paragraphs 1. or 2. as may apply to the case.

Note: See: Krueger v. Noel, 318 N.W.2d 220 (Iowa 1982), as to actual
knowledge requirement for violation of Iowa Code section 321.370. Also,
discusses duty to warn.

[]{#a60070 .anchor}600.70 Removing Injurious Material From Highway. Any
person who knowingly drops, or permits to be dropped or thrown, on any
highway any destructive or injurious material and other material as
defined in Instruction \_\_\_\_\_\_\_\* shall immediately remove the
material or cause it to be removed.

A violation of this law is negligence.

Authority

Iowa Code section 321.370

Krueger v. Noel, 318 N.W.2d 220 (Iowa 1982).

Comment

Note: \*Refers to Instruction 600.69 which sets forth the other material
as defined in Iowa Code section 321.369.

[]{#a60071 .anchor}600.71 Right Of Assumption. Both drivers had a right
to use the road, but each had to respect the rights of the other. Each
driver could assume the other would obey the law until they knew, or in
the exercise of ordinary care, should have known the other driver was
not going to obey the law.

Authority

[Iowa R. App. P. 6.14 (6) (i)]{.underline}

[]{#a60072 .anchor}**600.72 Lookout.** \"Proper lookout\" is the lookout
a reasonable person would keep in the same or similar situation. It
means more than looking and seeing. It includes being aware of the
operation of the driver\'s vehicle in relation to what the driver saw or
should have seen. \[A driver need not keep a lookout to the rear all the
time, but must be aware of the presence of others when the driver\'s
actions may be dangerous to others.\]

A violation of this duty is negligence.

## Authority

*[Matuska v. Bryant]{.underline}, 260 Iowa 726, 150 N.W.2d 716 (1967)*

## Comment

> *Note: Duty to maintain a proper lookout includes the duty to stop if
> a driver has lost visibility entirely. [Coulthard v.
> Keenan]{.underline}, 256 Iowa 890, 129 N.W.2d 597 (1964). For a duty
> of lookout to the rear, see [McCoy v. Miller]{.underline}, 257 Iowa
> 1151, 136 N.W.2d 332 (1965).*
>
> *Note: For a definition of proper lookout in non motor vehicle cases,
> see Iowa Civil Jury Instruction 700.12.*

10/04

[]{#a60073 .anchor}**600.73 Recklessness.** Recklessness is more than
negligence. A person is reckless when \[his\] \[her\] conduct appears to
disregard the possible results of \[his\] \[her\] actions. Recklessness
is when a person knows or should have known that the risk of harm to
another or to another\'s property is likely to result, and the conduct
is consciously done without concern for the consequences of the act.

## Authority

*[Campbell v. Van Roekel]{.underline}, 347 N.W.2d 406 (Iowa 1984)*

*[Sebastian v. Wood]{.underline}, 246 Iowa 94, 66 N.W.2d 841 (Iowa
1954)*

12/86

[]{#a60074 .anchor}**600.74 Legal Excuse.** (Name) claims that if you
find that \[he\] \[she\] violated the law in the operation of \[his\]
\[her\] vehicle, \[he\] \[she\] had a legal excuse for doing so because
(excuse) and, therefore, is not negligent. \"Legal excuse\" means that
someone seeks to avoid the consequences of \[his\] \[her\] conduct by
justifying acts which would otherwise be considered negligent. The
burden is upon (name) to establish as a legal excuse:

1.  Anything that would make complying with the law impossible.

2.  Anything over which the driver has no control which places \[his\]
    \[her\] vehicle in a position contrary to the law.

3.  Failure to obey the law when the driver is confronted with sudden
    emergency not of \[his\] \[her\] own making.

4.  An excuse or exception provided by the law.

If you find that (name) has violated the law as submitted to you in
other instructions, and that \[he\] \[she\] has established a legal
excuse for doing so under any one of the four definitions set forth
above, then you should find that (name) was not negligent for violating
the particular law involved.

## Authority

*[Thavenet v. Davis]{.underline}, 589 N.W. 2d 233 (Iowa 1999)*

*[Meyer v. City of Des Moines]{.underline}, 475 N.W.2d 181 (Iowa 1991)*

*[Jones v. Blair]{.underline}, 387 N.W.2d 349 (Iowa 1986)*

*[Miller v. Eichhorn]{.underline},426 N.W.2d 641, 644, 645 (Iowa Ct.
App. 1988)*

## Comment

> *Note: Submit only the proposition(s) supported by the evidence, and
> make reference to the statutory or common law specification of fault
> for which the* *excuse is claimed.*

6/01

[]{#a60075 .anchor}**600.75 Sudden Emergency.** A sudden emergency is a
combination of circumstances that calls for immediate action or a sudden
or unexpected occasion for action. A driver of a vehicle who, through no
fault of \[his\] \[her\] own, is placed in a sudden emergency, is not
chargeable with negligence if the driver exercises that degree of care
which a reasonably careful person would have exercised under the same or
similar circumstances.

## Authority

*[Thavenet v. Davis]{.underline}, 589 N.W. 2d 233 (Iowa 1999)*

*[Beyer v. Todd]{.underline}, 601 N.W.2d 35 (Iowa 1999)*

*[Weiss v. Bal]{.underline}, 501 N.W.2d 478 (Iowa 1993)*

*[Jones v. Blair]{.underline}, 387 N.W.2d 349 (Iowa 1986)*

*[Bannon v. Pfiffner]{.underline}, 333 N.W.2d 464 (Iowa 1983)*

*[Bangs v. Keifer]{.underline}, 174 N.W.2d 372 (Iowa 1970)*

*[Miller v. Eichhorn]{.underline}, 426 N.W.2d 641, 644, 645 (Iowa ct.
App. 1988)*

## Comment

> Note: This instruction can be used to explain what sudden emergency is
> in conjunction with an instruction on legal excuse where a statutory
> violation is claimed. In the event that the only form of legal excuse
> to be submitted to the jury is sudden emergency and the only claim is
> common law negligence, then this instruction should be given alone.
> The first sentence of 600.74 should then be added.

6/01

[]{#a60076 .anchor}**600.76 Negligence Of Common Carrier Of
Passengers.** Any \[person\] \[company\] \[who\] \[which\] transports
passengers for a fee must exercise more than ordinary care to protect
them, and has a duty both to anticipate any possible danger and to guard
against it. This high degree of care stops just short of guaranteeing a
passenger\'s safety.

## Authority

*[Doser v. Interstate Power Company]{.underline}, 173 N.W.2d 556 (Iowa
1970)*

12/86

## School Buses

[]{#a60077 .anchor}**600.77 Meeting School Bus.** The driver of any
vehicle when meeting a school bus on which the amber warning lights are
flashing shall reduce the vehicle\'s speed to not more than twenty miles
per hour, and shall bring the vehicle to a complete stop when the school
bus stops and the stop signal arm is extended. The vehicle shall remain
stopped until the stop arm is retracted, after which the driver may
proceed with due caution.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.372(3)*

## Comment

> Note: This section shall not apply to \"business\" and \"residence\"
> districts, and four-lane highways, but shall apply in suburban
> districts of cities and towns. [Iowa Code]{.underline} section
> 321.372(4).

12/86

[]{#a60078 .anchor}

**600.78 Overtaking School Bus.** The driver of any vehicle overtaking a
school bus shall not pass the bus when red or amber warning signal
lights are flashing. The driver shall bring the vehicle to a complete
stop at least fifteen feet from the bus when it is stopped and stop arm
is extended, and shall remain stopped \[until the arm is retracted and
the bus resumes motion\] \[until signaled by the driver to proceed\].

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.372(3)*

## Comment

> Note: This section shall not apply to \"business\" and \"residence\"
> districts, but shall apply in suburban districts of cities and towns.

12/86

[]{#a60079 .anchor}600.79 When Lighted Lamps Required. Every motor
vehicle on the highway, \[at any time from sunset to sunrise,\] and \[at
all times when conditions such as fog, snow, sleet or rain provide
insufficient lighting to render clearly noticeable persons and vehicles
on the highway five hundred feet ahead\] shall display lighted head
lights bright enough to reveal persons and vehicles at a safe distance
ahead.

A violation of this law is negligence.

Authority

Iowa Code sections 321.384(1), 321.415

Peterson v. Union Sales, 245 Iowa 1337, 66 N.W.2d 496 (1954).

Comment

Note: See: Iowa Code section 321.384(2) providing that visibility of
objects apply during time stated \"upon a straight level unlighted
highway under normal atmospheric conditions,\" unless different time or
conditions are specified.

Note: See: Iowa Code section 321.417 for exceptions with respect to
vehicles manufactured and sold before July 1, 1938.

Note: See: Iowa Code section 321.419 for exceptions as to \"parked\"
vehicles.

Note: See: Iowa Code section 321.418 for alternate provision when
vehicle is not \"operated at a speed in excess of 20 miles per hour\".

Note: See: Iowa Code section 321.419 for exceptions as to display of
lights when vehicle is parked.

Note: See: Iowa Code section 321.420 for restriction on \"number of
lamps lighted.\"

Note: See: Iowa Code section 321.421 for \"Special restrictions on
lamps.\"

[]{#a60080 .anchor}600.80 Head Lamps On Motor Vehicles. Every motor
vehicle \[other than a motorcycle\] shall be equipped with at least two
head lights with one on each side of the front of the vehicle.

A violation of this law is negligence.

Authority

Iowa Code section 321.385

Comment

Note: See: Iowa Code section 321.409(1) and (2) for limitations on
distribution of light.

[]{#a60081 .anchor}600.81 Head Lamps On Motorcycles. Every motorcycle
\[motorized bicycle\] shall be equipped with at least one and not more
than two head lights.

A violation of this law is negligence.

Authority

Iowa Code section 321.386

Comment

Note: The above section provides that head lamps on motorcycles \"shall
comply with the requirements and limitations\" of Iowa Code sections
321.384, 321.402, 321.403, 321.415, 321.418, 321.419, 321.420, 321.421,
321.422 and 321.423.

[]{#a60082 .anchor}600.82 Rear Lamps And Reflectors. \[Every motor
vehicle\] \[Every vehicle which is being towed at the end of a train of
vehicles\] shall be equipped with a tail light displaying a red light
plainly visible from 500 feet behind.

A violation of this law is negligence.

Authority

Iowa Code section 321.387

Comment

Note: See: Iowa Code section 321.388 for requirement as to illumination
of rear license plate.

Note: See: Iowa Code section 321.389 for requirement as to additional
reflectors on certain vehicles.

Note: See: Iowa Code section 321.390 for \"reflector requirements.\"

Note: See: Iowa Code section 321.422 for permissible red, yellow or
amber stop lights or directional signals on rear of vehicle.

[]{#a60083 .anchor}600.83 Clearance And Identification Lights. \[Every
truck\] \[Every trailer or semi-trailer of over three thousand pounds
gross weight\] shall be equipped with lighting devices and reflectors as
follows:

\[See Code Section as to specific requirements for the number and
location of reflectors, clearance, side-marker and tail lamps, stop and
identification lights, as applicable to vehicles of specified types,
width, length and weight\].

A violation of this law is negligence.

Authority

Iowa Code section 321.392

Ellis v. Robb, 242 Iowa 875, 47 N.W.2d 246

Comment

Note: See: Iowa Code section 321.393 as to requirements for \"color and
mounting\" of lighting devices, reflectors and clearance lamps.

[]{#a60084 .anchor}600.84 Lamp Or Flag On Projecting Load.

1\. Whenever the load on a vehicle extends to the rear four feet or more
beyond the bed or body, a red light \[lantern\] shall be displayed at
the extreme rear end of the load. The light must be plainly visible at
least 500 feet to the sides and rear.

2\. Whenever the load on a vehicle extends to the rear four feet or more
beyond the bed or body, a red flag \[cloth\] not less than sixteen
inches square shall be displayed at the extreme rear end of the load.

A violation of this law is negligence.

Authority

Iowa Code section 321.394

Comment

Note: Use paragraphs 1. or 2. as may apply to the case.

Note: See: Iowa Code section 321.384 for times of display of red light..

Note: This requirement is in addition to \"red rear light,\" Iowa Code
section 321.387.

[]{#a60085 .anchor}600.85 Lamps On Parked Vehicles. Whenever a vehicle
is \[parked\] \[stopped\] upon a road or the adjacent shoulder outside
of a business district, whether attended or unattended, the vehicle
shall be equipped with one or more parking lights which shall display a
\[white\] \[amber\] light on the road side visible from 500 feet to the
front of the vehicle and a red light visible from 500 feet to the rear.
Any lighted head lights on a parked vehicle shall be dimmed.

A violation of this law is negligence.

Authority

Iowa Code section 321.395

Tuhn v. Clark, 241 Iowa 441, 41 N.W.2d 13 (1950).

Comment

Note: See above section for exceptions to accord with \"local parking
regulations.\"

Note: See: Iowa Code section 321.396 for exceptions \"when accident
extinguishes light.\"

Note: See: Iowa Code section 321.384 for times of display.

[]{#a60086 .anchor}600.86 Lamps On Bicycles. Every bicycle shall be
equipped with a light on the front displaying a white light visible from
at least 300 feet to the front, and with a red light visible from 300
feet to the rear \[exception to rear light requirement with approved
reflector\].

A violation of this law is negligence.

Authority

Iowa Code section 321.397

Comment

Note: See: Iowa Code section 321.384 for times of display.

[]{#a60087 .anchor}600.87 Lamps On Other Vehicles And Equipment. All
vehicles shall be equipped with at least one light \[lantern\]
displaying a white light visible from 500 feet to the front of the
vehicle and with a red \[light\] \[lantern\] visible from 500 feet to
the rear. \*Animal-drawn vehicles shall be equipped with a flashing
amber light visible from 500 feet to the rear of the vehicle.

A violation of this law is negligence.

Authority

Iowa Code section 321.398

Comment

Note: Delete this sentence if not applicable to the case.

Note: See: Iowa Code section 321.383 for the type of vehicles included.

Note: See: Iowa Code section 321.384 for times of display.

[]{#a60088 .anchor}600.88 Slow Moving Farm Vehicles, Etc.

1\. Every farm tractor\* operated on a highway at a speed of 35 miler
per hour or less shall be identified with a reflective device visible
from the rear. \[Describe the type and mounting approved by the Director
of the State Department of Transportation.\]

A violation of this law is negligence.

Authority

Iowa Code section 321.383(2)

Comment

Note: State v. Armstrong, 203 N.W.2d 269, 272 (Iowa 1972). Judicial
Notice may be taken of Iowa departmental rules and regulations adopted
pursuant to statutory authority.

Note: See: Iowa Code section 321.383 for additional equipment and
exceptions that may affect the wording of this instruction.

Note: See: Iowa Code section 321.383(2) for "alternative reflective
device" permitted for horse or mule-drawn vehicles if the person
operating the vehicle objects to the device approved by the American
Society of Agricultural Engineers.

2\. Every farm tractor\* operated on a primary or secondary road at a
speed of 25 miles an hour or less at any time from sunset to sunrise
shall be equipped with and display an amber flashing light visible from
the rear. \[Describe the type, number, dimensions and method of mounting
of the lights approved by the Director of the State Department of
Transportation.\]

A violation of this law is negligence.

Authority

Iowa Code section 321.423(6)

Comment

Note: \*See: Iowa Code section 321.423(6) for additional equipment that
may affect the wording of this instruction.

[]{#a60089 .anchor}600.89 Spot Lamps. A motor vehicle shall have no more
than one spot light. It shall not be aimed at an oncoming vehicle nor
more than 100 feet ahead.

A violation of this law is negligence.

Authority

Iowa Code section 321.402

[]{#a60090 .anchor}600.90 Auxiliary Driving Lamps. No more than three
auxiliary driving lights \[fog lights\] shall be allowed on a motor
vehicle. They shall be mounted on the front at a height not less than
twelve inches nor more than forty-two inches above the level surface on
which the vehicle stands.

A violation of this law is negligence.

Authority

Iowa Code section 321.403

[]{#a60091 .anchor}600.91 Signal Lamps And Signal Devices. A motor
vehicle shall be equipped with a signal \[light\] \[device\],
constructed and located on the vehicle as to give a signal of intention
to stop. This signal shall be \[red\] \[yellow\] and be plainly visible
and understandable in normal sunlight and from 100 feet to the rear at
night. The signal shall not project a glaring light.

A violation of this law is negligence.

Authority

Iowa Code section 321.404

Comment

Note: See: Iowa Code section 321.405 for requirement that signal devices
be self illuminated.

[]{#a60092 .anchor}600.92 Duty To Dim Lights. The driver of a motor
vehicle has a duty to dim the lights to low beam \[within 1000 feet of
meeting and approaching a motor vehicle\] \[within 400 feet when
overtaking a vehicle traveling in the same direction\].

A violation of this law is negligence.

Authority

Iowa Code section 321.415

Comment

Note: See: Iowa Code section 321.384 for times of display.

Note: Use bracketed language as may apply to the case.

Brakes

[]{#a60093 .anchor}600.93 Red Light In Front. No person shall \[drive\]
\[move\] any \[vehicle\] \[equipment\] on the highway with any \[lamp\]
\[device\] \[displaying\] \[reflecting\] a red light visible from
directly in front.

A violation of this law is negligence.

Authority

Iowa Code section 321.422

Comment

Note: By its terms, the above section has no application to \"authorized
emergency vehicles.\"

See: Iowa Code section 321.423 for prohibition of flashing lights,
except for certain exceptions.

[]{#a60094 .anchor}600.94 Brakes, Hitch And Control Requirement.

1\. Every motor vehicle, other than a motorcycle, shall be equipped with
brakes adequate to control the movement of, and to stop and hold the
vehicle. It must also have a separate emergency brake.

A violation of this law is negligence.

Authority

Iowa Code section 321.430(1)

Comment

Note: See: Iowa Code section 321.430(2) for motorcycles.

Note: See: Iowa Code section 321.430(3) for trailers.

Note: See: Iowa Code section 321,430(3) concerning the requirement as to
auxiliary means of applying the brakes from the cab of a towing vehicle
on a trailer of a gross weight of 3,000 pounds of more.

Note: See: Iowa Code section 321.430(4) for service brake requirements
on certain vehicles.

[]{#a60095 .anchor}600.95 Brakes - Performance Ability.

1\. The brakes on any \[motor vehicle\] or \[combination of motor
vehicles\] shall be adequate to stop the \[vehicle\] \[vehicles\]
\[having a gross weight of less than 5,000 pounds within a distance of
30 feet\] or \[having a gross weight in excess of 5,000 pounds within a
distance of 45 feet\] when travelling 20 miles per hour on a dry
\[asphalt\] \[concrete\] surface where the grade does not exceed one per
cent.

A violation of this law is negligence.

Authority

Iowa Code section 321.431 (1)(a),(b)

Comment

Note: See: Iowa Code section 321.431(2) requiring that, under the
conditions specified above, the hand brake shall be adequate to hold the
vehicle \[vehicles\] stationary on any grade upon which operated.

Note: See: Iowa Code section 321.431(3) for requirement that, under the
conditions above specified, the service brakes upon a motor vehicle
equipped with two-wheel brakes only, and when permitted hereunder, shall
be adequate to stop the vehicle within a distance of 45 feet and the
hand brake adequate to stop the vehicle within a distance of 55 feet.

Note: See: Iowa Code section 321.431(4) for requirement that all braking
distances specified under this section shall apply to all vehicles
specified, whether or not such vehicles are loaded to statutory maximum
capacity.

2\. All brakes shall be maintained in good working order and shall be
adjusted to operate equally as practicable with respect to the wheels on
opposite sides of the vehicle.

A violation of this law is negligence.

Authority

Iowa Code section 321.431(5)

Miscellaneous Equipment

[]{#a60096 .anchor}600.96 Horns And Warning Devices. Every motor vehicle
operated upon a highway shall be equipped with a horn in good working
order capable of being heard under normal conditions from at least 200
feet. When reasonably necessary to insure safe operation, the driver of
the vehicle shall give such warning. The horn shall not otherwise be
used and shall not give out an unreasonably loud or harsh sound or
whistle.

A violation of this law is negligence.

Authority

Iowa Code section 321.432

Comment

Note: This statute does not place on the overtaking driver any positive
duty to sound horn before passing. France v. Benter, 256 Iowa 534,
537-38, 128 N.W.2d 268, 270-71 (1964).

Note: See: Instruction 600.97 for common law duty to sound the horn.

[]{#a60097 .anchor}600.97 Duty To Sound Horn. A driver shall sound
\[his\] \[her\] horn when reasonably necessary to ensure the safe
operation of the vehicle.

A violation of this duty is negligence.

Authority

France v. Benter, 256 Iowa 534, 128 N.W.2d 268 (1964)

[]{#a60098 .anchor}**600.98 Windshields And Windows - Clear Vision.** A
person shall not drive a motor vehicle equipped with \[a windshield\]
\[side wings\] \[side windows\] \[a rear window\] which \[does\] \[do\]
not permit clear vision.

A violation of this law is negligence.

## Authority

*[Iowa Code]{.underline} section 321.438*

12/86

[]{#a60099 .anchor}**600.99 Unsafe Vehicles.** It is unlawful for any
person to drive or move, or for the owner to cause or knowingly permit
to be driven or moved on any highway, any vehicle or combination of
vehicles which:

1\. Is in such unsafe condition that a person is in danger; or

2\. Is not at all times equipped properly as required by law; or

3\. Is equipped with one or more unsafe tires; or

4\. Is equipped unlawfully.

A violation of this law is negligence.

##### Authority

*[Iowa Code]{.underline} section 321.381*

## Comment

*Note: Delete any provisions which do not apply to the case.*

*Note: See: [Iowa Code]{.underline} section 321.433 \[sirens and bells
prohibited\].*

> *Note: See: [Iowa Code]{.underline} section 321.434 \[sirens and bells
> prohibited on bicycles\].*

*Note: See: [Iowa Code]{.underline} section 321.437 \[mirrors\].*

*Note: See: [Iowa Code]{.underline} section 321.439 \[windshield
wipers\].*

*Note: See: [Iowa Code]{.underline} section 321.440 \[tires\].*

Note: See: [Iowa Code]{.underline} section 321.409 \[lighting
equipment\].

12/86

[]{#a600100 .anchor}**600.100 Seat Belt Defense - Essentials.** The
defendant claims \_\_\_\_\_\_\_\_\_\'s injuries were increased because
\[he\] \[she\] \[they\] failed to wear a safety \[belt\] \[harness\] as
required by law. Defendant must prove both of the following
propositions:

1.  \_\_\_\_\_\_\_\_\_\_\_ failed to wear a properly adjusted and
    fastened safety \[belt\] \[harness\].

2.  The failure contributed to plaintiff\'s injuries.

If defendant has proved both of these propositions,
\_\_\_\_\_\_\_\_\_\_\'s recovery may be reduced by an amount not more
than five percent of the damages awarded after any other reductions for
comparative fault. If you allocate a percentage, I will apply this
percentage after any other reduction for comparative fault to reduce
\_\_\_\_\_\_\_\_\_\_\_\_\_\'s total recovery.

## Authority

*[Iowa Code]{.underline} sections 321.445, 321.446*

## Comment

> *Note: 1. If a child is involved, see [Iowa Code]{.underline} section
> 321.446(6).*
>
> *Note: 2. This instruction is to be used if a seat belt issue has been
> raised by a defendant and the foundation evidence of cause has been
> shown as required by [Iowa Code]{.underline} section 321.445 (4)(b)(1)
> and (2).*
>
> *Note: 3. The instruction will need to be tailored if there are fact
> questions as to whether the vehicle is a model and type required to
> have a seat belt, whether plaintiff comes within an exception, or
> whether the seat belt was properly fastened or adjusted.*
>
> *Note: 4. If this seat belt defense is submitted, two interrogatories
> must be submitted to the jury (as the last questions to the jury) in
> the following forms:*
>
> *(If you answered Question No. \_\_\_\_\_\_\_\_ you will also answer
> the following question.)*

*Question No. \_\_\_\_\_\_\_\_*

*Do you find failure to wear a safety \[belt\] \[harness\] contributed
to*

*\_\_\_\_\_\_\_\_\_\_\_\'s injuries?*

*Answer \"yes\" or \"no.\"*

*ANSWER:\_\_\_\_\_\_\_\_\_\_*

> (If you have answered \"yes\" to Question No. \_\_\_\_\_\_\_\_\_\_ you
> will also answer the following question.)

*Question No. \_\_\_\_\_\_\_\_.*

> *What percent, if any, (not more than 5%) do you find the recovery of
> plaintiff \_\_\_\_\_\_\_\_\_\_\_ should be reduced?*

*ANSWER:\_\_\_\_\_\_\_\_\_\_\_*

## *Authority*

*[Iowa Code]{.underline} section 321.445.*

6/01

[]{#CH700 .anchor}**CHAPTER 700**

NEGLIGENCE - PROXIMATE CAUSE - CO-EMPLOYEE-EMPLOYER LIABILITY -
VICARIOUS

LIABILITY - SIDEWALK LIABILITY- DISTRESS AND INJURY

# Negligence - Proximate Cause

[700.1](#a7001) Essentials For Recovery

[700.2](#a7002) Ordinary Care - Common Law Negligence -- Defined

[700.2A](#a7002a) Ordinary Care -- Common Law Negligence of Child --
Defined.

[700.3](#a7003) Proximate Cause - Defined

[700.4](#a7004) Concurrent Cause - Defined

[700.5](#a7005) Sole Proximate Cause

[700.6](#a7006) Superseding - Intervening Cause

[700.7](#a7007) General Negligence (Res Ipsa Loquitur)

[700.8](#a7008) Accident Does Not Constitute Or Raise Presumption Of
Negligence

[700.9](#a7009) Act Of God

[700.10](#a70010) Safety Code - Negligence Per Se

[700.11](#a70011) Safety Code/Custom - Evidence Of Negligence

[700.12](#a70012) Proper Lookout

# Co-Employee Liability

[710.1](#a7101) Essentials For Recovery Against Co-Employee

[710.2](#a7102) Arose Out Of And In The Course Of Employment - Defined

[710.3](#a7103) Gross Negligence Of Co-Employee - Defined

# Employer - Employee Liability

[720.1](#a7201) Employer Liability

[720.2](#a7202) Employer - Employee Relationship - Defined

[720.3](#a7303) Employer\'s Duty To Warn

# Vicarious Liability

[730.1](#a7301) Liability Of Employer

[730.2](#a7302) Scope Of Employment

[730.3](#a7303) Definition Of Independent Contractor

[730.4](#a7304) Borrowed Servant

[730.5](#a7305) Negligent Hiring- Essentials for Recovery

# Sidewalk Liability

[740.1](#a7401) Owner Liability For Sidewalks - Natural Accumulation of
Snow And Ice

[740.2](#a7402) Owner/Occupant Liability For Sidewalks - Artificial
Accumulation Of Snow And Ice

[740.3](#a7403) Natural Accumulation -- Definition

# Distress/Injury

[750.1](#a7501) Bystander Emotional Distress

[750.2](#a7502) Emotional Distress -- Defined

[750.3](#a7503) Serious Injury - Defined

[]{#a7001 .anchor}700.1 Essentials For Recovery. The plaintiff must
prove all of the following propositions:

1\. The defendant was negligent in one or more of the following ways:

a\.

b\.

c\.

2\. The negligence was a proximate cause of damage to the plaintiff.

3\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of \_\_\_\_\_\_\_\_\_\_ as
explained in Instruction No.\_\_\_\_\_.\]

Authority

Coker v. Abell-Howe Co., 491 N.W.2d 143 (Iowa 1992)

Rinkleff v. Knox, 375 N.W.2d 262 (Iowa 1985)

Bauman v. City of Waverly, 164 N.W.2d 840 (Iowa 1969)

[]{#a7002 .anchor}700.2 Ordinary Care - Common Law Negligence - Defined.
\"Negligence\" means failure to use ordinary care. Ordinary care is the
care which a reasonably careful person would use under similar
circumstances. \"Negligence\" is doing something a reasonably careful
person would not do under similar circumstances, or failing to do
something a reasonably careful person would do under similar
circumstances.

Authority

Bartlett v. Chebuhar, 479 N.W.2d 321 (Iowa 1992)

Schalk v. Smith, 224 Iowa 904, 277 N.W. 303 (1938)

Comment

Note: If a party is intoxicated, add: \"An intoxicated person is held to
the standard of care of a sober person.\"

Note: If a party is a child, add: \"At the time of the injury, (name)
was a child. Ordinary care of a child is the care which a reasonable
child of like age, intelligence and experience would do under similar
circumstances.\"

Intoxication - Yost v. Miner, 163 N.W.2d 557 (Iowa 1968)

Child - Peterson v. Taylor, 316 N.W.2d 869 (Iowa 1982)

[]{#a7002a .anchor}**700.2A** **Ordinary Care -- Common Law Negligence
of Child -- Defined.** "Negligence" means failure to use ordinary care.
Ordinary care of a child is the care which a reasonable child of like
age, intelligence and experience would use under similar circumstances.
In determining if ([child]{.underline})'s conduct was negligent,
([child]{.underline})'s conduct must be compared to that of a reasonable
child of like age, intelligence and experience. You are to first
determine the particular capacity of ([child]{.underline}) to
\[perceive\]\[avoid\]\[do\]\[not do\] the ([describe risk or
act]{.underline}) based on \[his\]\[her\] age, intelligence and
experience. Next, you are to determine how a reasonable child of like
age, intelligence and experience would have acted under similar
circumstances. "Negligence" is doing something a reasonable child of
like age, intelligence and experience would not do under similar
circumstances, or failing to do something a reasonable child of like
age, intelligence and experience would do under similar circumstances.

**Authority**

[Mastland v. Evans]{.underline}, 498 N.W.2d 682 (Iowa 1993)

[Peterson v. Taylor]{.underline},316 N.W.2d 869 (Iowa 1982)

[Restatement (Torts) Second]{.underline}, § 283A (1965)

**Comment**

The Court is still to determine as a matter of law: (1) whether the
child is so young as not being capable of negligent conduct; and (2)
whether the child has reached such an age that the child standard no
longer applies and the reasonably careful person standard should be
used.

[]{#a7003 .anchor}700.3 Proximate Cause - Defined. The conduct of a
party is a proximate cause of damage when it is a substantial factor in
producing damage and when the damage would not have happened except for
the conduct.

\"Substantial\" means the party\'s conduct has such an effect in
producing damage as to lead a reasonable person to regard it as a cause.

Authority

Gertst v. Marshall, 549 N.W.2d 810 (Iowa 1996)

Benn v. Thomas, 512 N.W.2d 537, 538-40 (Iowa 1994)

Walker v. Mlaker, 489 N.W.2d 401 (Iowa 1992)

Kelly v. Sinclair Oil Corp., 476 N.W.2d 341 (Iowa 1991)

Jones v. City of Des Moines, 355 N.W.2d 49 (Iowa 1984)

Comment

Note: In a case where the evidence may show more than one cause
contributed to the injury or damages, or sole proximate cause is an
issue, the following sentence should be added: \"There can be more than
one proximate cause of an injury or damage.\"

Note: Consider appropriateness of giving this instruction in addition to
Iowa Civil Jury Instruction 220.34 Previous Infirm Condition where
\"Eggshell Plaintiff Rule\" applies.

Note: For a general discussion of \"proximate cause\" see Gerst v.
Marshall, 549 N.W.2d 810 (Iowa 1996).

[]{#a7004 .anchor}700.4 Concurrent Cause - Defined. There can be more
than one proximate cause of an injury or damage. When the fault of two
or more separate parties is so related to an event that their combined
fault, when viewed as a whole, is the cause of the event without which
the event would not occur, then the fault of each party may be a
proximate cause, provided the fault of each substantially contributes to
plaintiff\'s injuries.

\"Substantial\" means the party\'s fault has such an effect in producing
damage as to lead a reasonable person to regard it as a cause.

Authority

Foggia v. Des Moines Bowl-O-Mat 543 N.W.2d 892 (Iowa 1996) (multiple
defendants).

Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 858, 861 (Iowa
1994) (concept approved in a toxic tort case).

[]{#a7005 .anchor}700.5 Sole Proximate Cause. The defendant claims the
sole proximate cause of the plaintiff\'s damages was \[an act of God\]
\[the conduct of another party\] \[a condition not under the control of
any party\]. Sole proximate cause means the only proximate cause. The
defendant must prove both of the following propositions:

1\. The \[Act of God\] \[conduct of another person\] \[condition not
under the control of any party\] occurred.

2\. The \[Act of God\] \[conduct of another person\] \[condition not
under the control of any party\] was the only proximate cause of
plaintiff\'s damage.

If the defendant has failed to prove either of these propositions, the
defendant has failed to prove the defense of sole proximate cause. If
the defendant has proved both of these propositions, the defendant has
proved the defense of sole proximate cause and you must find the fault
of the defendant, if any, was not a proximate cause of plaintiff\'s
damages when you answer the special verdicts.

Authority

Sponsler v. Clarke Electric Cooperative, Inc., 329 N.W.2d 663 (Iowa
1983)

Chumbley v. Dreis and Krump Mfg. Co., 521 N.W.2d 192 (Iowa App. 1993)

Klein v. City of Keokuk, 438 N.W.2d 22 (Iowa App. 1989)

Comment

Note: When Act of God is alleged to be the sole proximate cause, use
Iowa Civil Jury Instruction 700.9

Note: The defense of sole proximate cause is not a comparative fault
defense. If the defendant proves an event not chargeable to the
defendant is the sole proximate cause of plaintiff\'s damage, the
defendant will be insulated from liability because the fault, if any, of
the defendant cannot be a proximate cause of plaintiff\'s injuries. See
Kuta v. Newberg, 600 N.W.2d 280, 285-286 (Iowa 1999); Baker v. City of
Ottumwa, 560 N.W.2d 578, 583 (Iowa 1997);, Sponsler v. Clarke Electric
Cooperative, Inc., 329 N.W.2d 663 (Iowa 1983)

[]{#a7006 .anchor}700.6 Superseding - Intervening Cause. The defendant
claims the conduct of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\[third person\]
\[other active force\] was the proximate cause of plaintiff\'s damages.

In order to establish this defense the defendant must prove all of the
following propositions:

1\. The conduct of \_\_\_\_\_\_\_\_\_\_\_\_\_\_ \[third person\] \[other
active force\] caused plaintiff\'s damages and occurred after the
conduct of the defendant which you have found to constitute negligence.

2\. The conduct of the defendant did not create or substantially
increase the risk that the plaintiff would sustain damage through the
conduct of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \[third person\] \[other
active force\].

3\. The conduct of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\[third person\]
\[other active force\] was not reasonably foreseeable to someone in
defendant\'s position.

If the defendant has proven all of these propositions, then the
plaintiff cannot recover damages.

Authority

State v. Henning, 545 N.W.2d 322 (Iowa 1996)

Stevens v. Des Moines School District, 528 N.W.2d 117 (Iowa 1995)

Weems v. Hy Vee Food Stores, Inc., 526 N.W.2d 571 (Iowa App. 1995)

Sumpter v. City of Moulton, 519 N.W.2d 427 (Iowa App. 1994)

Restatement (Second) of Torts, sections 440, 441(1), 442(A), 443 and 447

[]{#a7007 .anchor}**700.7 General Negligence (Res Ipsa Loquitur).** It
is alleged the plaintiff\'s injuries were caused by the defendant\'s
specific acts of negligence and also by the defendant\'s general
negligence. If you find plaintiff\'s injuries were caused by negligence
in one or more of the specific ways claimed by the plaintiff, then do
not consider the general negligence claim. However, if you find the
plaintiff did not prove the injuries were caused by the defendant\'s
specific act or acts of negligence, then you will consider the
plaintiff\'s general negligence claim.

 

Under the rule of general negligence, the occurrence of an injury allows
you to conclude that the defendant was negligent if the plaintiff proves
(1) the injury was caused by ([describe the instrument]{.underline})
under the exclusive control of the defendant, and (2) the injury would
not have occurred if ordinary care had been used.

 

The plaintiff must prove the defendant had exclusive control when the
negligence occurred. If you find the negligence occurred before the
injury, then the plaintiff must prove there was no change in the
condition of the (describe the instrument) after it left the
defendant\'s exclusive control which could reasonably have caused the
injury.

 

The plaintiff must also prove the occurrence would not have happened if
ordinary care had been used. Proof of this requirement rests on common
experience.

 

If you find the plaintiff has proved both requirements of the rule, you
may conclude the defendant was negligent, but you are not required to do
so. If the plaintiff fails to prove either of the basic requirements,
the plaintiff cannot recover damages under the general negligence claim.

 

 

# Authority

 

*[Brewster v. U.S.]{.underline}, 542 N.W.2d 524 (Iowa 1996)*

*[Reilly v. Straub]{.underline}, 282 N.W.2d 688 (Iowa 1979)*

*[Pastour v. Kolb Hardware, Inc.]{.underline}, 173 N.W.2d 116 (Iowa
1969)*

*[Shared Control - Wiles v. Myerly]{.underline}, 210 N.W.2d 619 (Iowa
1973)*

 

# Comment

 

Caveat: If exclusive control issue relates to multiple defendants,
additional instructions as to shared control may be required.

[]{#a7008 .anchor}700.8 Accident Does Not Constitute Or Raise
Presumption Of Negligence. The mere fact an accident occurred or a party
was injured does not mean a party was \[negligent\] \[at fault\].

Authority

Armbruster v. Gray, 225 Iowa 1226, 282 N.W. 342 (1938)

Comment

Caveat: Do not use this instruction if general negligence (res ipsa
loquitur) is submitted.

[]{#a7009 .anchor}700.9 Act Of God. An \"Act of God\" is such an unusual
and extraordinary display of nature that it could not be expected under
normal conditions.

Authority

Lanz v. Pearson, 475 N.W.2d 601 (Iowa 1991)

Oakes v. Peter Pan Bakers, Inc., 258 Iowa 447, 138 N.W.2d 93 (1965)

Klein v. City of Keokuk, 438 N.W. 2d 22 (Iowa App. 1989)

Comment

Note: Act of God may be used as a defense only if there is evidence it
is the sole proximate cause of the harm in question. Acts of God are not
\"fault\" as defined in Iowa Code section 668.1. See, Renze Hybrids,
Inc. v. Shell Oil Company, 418 N.W.2d 634 (Iowa 1988)

[]{#a70010 .anchor}700.10 Safety Code - Negligence Per Se. (Name of
Safety Code) requires (Substance of Safety Code).

A violation of this law is negligence.

Authority

Clausen v. R. W. Gilbert Construction Co., Inc., 309 N.W.2d 462 (Iowa
1981)

Koll v. Manatt\'s Transportation Co., 253 N.W.2d 265 (Iowa 1977)

Wagner v. Northeast Farm Service Company, 177 N.W.2d 1 (Iowa 1970)

Comment

Note: This is limited to safety codes that have the force of law either
by statute, regulation or ordinance.

[]{#a70011 .anchor}700.11 Safety Code/Custom - Evidence Of Negligence.
You have received evidence of \[substance of particular custom
involved\] \[applicable safety code provisions\]. Conformity with \[a
custom\] \[the provisions of a safety code\] is evidence that (name of
party) was not negligent and \[non-conformity\] \[violations of its
provision\] is evidence that (name of party) was negligent. Such
evidence is relevant and you should consider it, but it is not
conclusive proof.

Authority

Custom - Langner v. Caviness, 238 Iowa 774, 28 N.W.2d 421 (1947)

Manual On Uniform Traffic Control Devices - Gipson v. State, 419 N.W.2d
369 (Iowa 1988)

Safety Code - Porter v. Iowa Power and Light Company, 217 N.W.2d 221
(Iowa 1974)

[]{#a70012 .anchor}700.12 Proper Lookout. \"Proper lookout\" is the
lookout a reasonable person would keep in the same or similar situation.
It means more than looking and seeing. It includes being aware of one\'s
movements in relation to things seen or that could have been seen in the
exercise of ordinary care.

Authority

Coker v. Abell-Howe Co., 491 N.W.2d 143 (Iowa 1992)

[]{#a7101 .anchor}710.1 Essentials For Recovery Against Co-Employee. The
plaintiff must prove all of the following propositions:

1\. The plaintiff and defendant were co-employees.

2\. The plaintiff\'s injuries arose out of and in the course of
employment.

3\. The defendant was grossly negligent as defined in Instruction
No.\_\_\_\_\_ in the following particular(s).

4\. The gross negligence was a proximate cause of damage to the
plaintiff.

5\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Authority

Taylor v. Peck, 382 N.W.2d 123 (Iowa 1986)

Thompson v. Bohlken, 312 N.W.2d 501 (Iowa 1981)

[]{#a7102 .anchor}710.2 Arose Out Of And In The Course Of Employment -
Defined. The words \"arose out of\" refer to the cause and origin of an
injury. The injury must be a natural consequence of a risk or hazard of
the employment.

The words \"in the course of\" refer to the time, place and
circumstances of an injury. The injury must occur within the period of
employment at a place the employee may reasonably be and while the
employee is doing work or something related to work.

Authority

Caterpillar Tractor Company v. Shook, 313 N.W.2d 503 (Iowa 1981)

Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979)

[]{#a7103 .anchor}710.3 Gross Negligence Of Co-Employee - Defined. Gross
negligence of a co-employee exists when the co-employee has (1)
knowledge of the danger to be apprehended; (2) knowledge that injury is
a probable, as opposed to a possible, result of the danger; and (3) a
conscious failure to avoid the danger.

Authority

Taylor v. Peck, 382 N.W.2d 123 (Iowa 1986)

[]{#a7201 .anchor}720.1 Employer Liability. An employer must use
ordinary care to provide a reasonably safe place for the employee to
work and reasonably safe \[appliances\] \[machinery\] \[tools\] when
used as assigned and directed.

Authority

Olson v. Katz, 201 N.W.2d 478 (Iowa 1972)

[]{#a7202 .anchor}720.2 Employer-Employee Relationship - Defined. An
employee is a person bound by duty of service, subject to the
employer\'s right to control or direct the manner in which the work
shall be done.

Authority

Dobson v. Jewell, 189 N.W.2d 547 (Iowa 1971)

720.3 Employer\'s Duty To Warn. If the employer knew or in the exercise
of reasonable care should have known of an unreasonable risk of injury
to \[his\] \[her\] \[its\] employee and that the employee would not
realize or appreciate the risk or protect \[himself\] \[herself\] from
it, the employer must use ordinary care to warn the employee of the
risk.

Authority

Calkins v. Sandven, 256 Iowa 682, 129 N.W.2d 1, 8 (1964)

Von Tersch v. Ahrendsen, 251 Iowa 115, 99 N.W.2d 287, 290 (1959)

[]{#a7301 .anchor}730.1 Liability Of Employer. An \[employer\]
\[corporation\] is liable for the \[negligent\] \[wrongful\] acts of an
\[employee\] \[officer, agent or employee\] if the acts are done in the
scope of the employment.

Authority

Bethards v. Shivvers, Inc., 355 N.W.2d 39 (Iowa 1984)

Graham v. Worthington, 259 Iowa 845, 146 N.W.2d 626 (1966)

[]{#a7302 .anchor}730.2 Scope Of Employment. For an act to be within the
scope of an employee\'s employment, the act must be necessary to
accomplish the purpose of the employment, and it must be intended to
accomplish that purpose.

Authority

Merchants National Bank of Cedar Rapids v. Waters, 447 F.2d 234 (8th
Cir. 1971)

Sandman v. Hagan, 261 Iowa 560, 154 N.W.2d 113 (1967)

[]{#a7303 .anchor}730.3 Definition Of Independent Contractor. The right
to control the manner and method of performing the work is the primary
test for determining whether a person is an independent contractor or an
employee. If the person doing the work answers to another only as to the
result of the work but selects the manner and method of doing the work
such person must be regarded as an independent contractor. In
determining who has the right to control the manner and method of doing
the work you should consider the following matters as shown by the
evidence.

1\. The existence of a contract or the performance of a certain piece of
work or kind of work at a fixed price.

2\. Whether the business of the person doing the work is independent
from that of the person who hires the work done.

3\. Whether the person doing the work has the right to employ assistants
and has the right to supervise their activities.

4\. Whether the person doing the work must furnish necessary tools,
supplies and material.

5\. Whether the work in that locality is usually done under the
supervision or by a specialist without supervision.

6\. The skill required in doing the work.

7\. The time limit for performing the services.

8\. The method of payment.

9\. Whether the work is part of the regular work of the person who hires
the work done.

10\. Whether the parties believe they are creating a relationship of
employer-employee or independent contractor.

11\. Whether there is any withholding from payment to the person
providing the service for federal income tax or social security.

12\. Any other matters shown by the evidence bearing on this question.

Authority

D & C. Express, Inc. v. Sperry,450 N.W. 2d 842 (Iowa 1990)

Peterson v. Pittman, 391 N.W. 2nd 235 (Iowa 1986)

Burr v. Apex Concrete Company, 242 N.W.2d 272 (Iowa 1976)

Greenwell v. Meredith Corporation, 189 N.W.2d 901 (Iowa 1971)

Comment

Note: Instruct only on the factors supported by the evidence.

[]{#a7304 .anchor}730.4 Borrowed Servant. An employee of one employer
who has been temporarily loaned to another for a special service does
not become the employee of the borrower unless the original employer
surrenders full control over the employee. Full control means that the
employee is under the control and direction of the borrower in
performance of the particular act involved. The control necessary must
be something more than the right to point out the work to be done.

Authority

Bethards v. Shivvers, Inc., 355 N.W.2d 39 (Iowa 1984)

[]{#a7305 .anchor}730.5 Negligent Hiring - Essentials for Recovery.
Plaintiff must prove all of the following propositions:

1\. An \[employment\]\[agency\] relationship exists between (employee)
and the defendant employer.

2\. The employer knew, or in the exercise of ordinary care should have
known, of (employee's) \[incompetence\]\[unfitness\]\[dangerous
characteristics\] at the time of hiring.

3\. the (employee's) \[incompetence\]\[unfitness\]\[dangerous
characteristics\] was a proximate cause of damage to the Plaintiff.

4\. The nature and extent of the damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of \_\_\_\_\_\_\_, as
explained in Instruction No. \_\_\_\_\_.\]

Authority

[Godar v Edwards]{.underline}, 588 n.W.2d 701 (Iowa 1999).

Comment

Note: In [Godar,]{.underline} the Iowa Supreme Court held that a claim
for negligent hiring likewise includes an action for negligent retention
and negligent supervision.

[]{#a7401 .anchor}740.1 Owner Liability For Sidewalks - Natural
Accumulation Of Snow And Ice. The owner of land next to a sidewalk must
remove, within a reasonable amount of time, any snow and ice that has
naturally accumulated on the sidewalk. The owner must exercise ordinary
care in removing the snow and ice.

The plaintiff must prove that the owner knew about the natural
accumulation of snow and ice, or that it existed long enough for the
owner to have discovered and removed it in the exercise of ordinary
care.

A violation of this law is negligence.

Authority

Iowa Code section 364.12 (2) (b)

[]{#a7402 .anchor}740.2 Owner/Occupant Liability For Sidewalks -
Artificial Accumulation Of Snow And Ice. An \[owner\] \[occupant\] of
land must exercise ordinary care to keep sidewalks next to their land
free from accumulations of snow and ice caused by their acts.

The plaintiff must prove that the \[owner\] \[occupant\] knew about the
cause of the accumulation of snow and ice, or that it existed long
enough for the \[owner\] \[occupant\] to have discovered and
\[corrected\] \[prevented\] it in the exercise of ordinary care.

Authority

Beyer v. City of Dubuque, 139 N.W.2d 428 (Iowa 1966)

[]{#a7403 .anchor}740.3 Natural Accumulation - Definition. \"Natural
accumulation\" refers to snow or ice which is on the sidewalk as the
result of nature, as compared to snow or ice which was caused to be on
the sidewalk as the result of something that a person has done.

Authority

Beyer v. City of Dubuque, 139 N.W.2d 428 (Iowa 1966)

[]{#a7501 .anchor}**750.1 Bystander Emotional Distress**. The Plaintiff
must prove all of the following propositions:

1\. (Name of plaintiff) was located near the scene of the accident.

> 2\. (Name of plaintiff) suffered emotional distress resulting from a
> direct emotional impact from seeing or hearing the accident, as
> contrasted with learning of the accident from others after its
> occurrence.
>
> 3\. (Name of plaintiff) is the \[state relationship to injured person.
> i.e. spouse, or within the second degree of consanguinity or
> affinity\] of \[name of injured person\].
>
> 4\. A reasonable person in the position of (name of plaintiff) would
> believe, and (name of plaintiff) did believe, that (injured person)
> would suffer serious injury or be killed.

5\. The emotional distress suffered by (name of plaintiff) was serious.

6\. (Name of defendant) was at fault for the accident as explained in
Instruction No. \_\_\_\_\_.

If the Plaintiff has failed to prove any of these propositions,
Plaintiff is not entitled to damages. If the Plaintiff has proved all of
these propositions, the Plaintiff is entitled to damages in some amount.

######### Authority

*[Pekin Ins. Co. v Hugh]{.underline}, 501 N.W.2d 508 (Iowa 1993)*

*[Fineran v. Pickett]{.underline}, 465 N.W.2d 662 (Iowa 1991)*

*[Barnhill v. Davis]{.underline}, 300 N.W.2d 104 (Iowa 1981)*

######### Comment

*Note: Use only those elements that are in dispute.*

[]{#a7502 .anchor}**750.2 Emotional Distress - Defined**. As used in
Instruction No. \_\_\_\_\_, the term \"emotional distress\" includes all
highly unpleasant mental reactions. Serious emotional distress is
ordinarily, but is not necessarily, accompanied by physical
manifestations of the distress.

######### Authority

*[Pekin Ins. Co. v. Hugh]{.underline}, 501 N.W.2d 508 (Iowa 1993)*

[]{#a7503 .anchor}**750.3 Serious Injury - Defined.** As used in
Instruction No. \_\_\_\_\_, the term \"serious injury\" means bodily
injury that creates a substantial risk of death or that causes serious
permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.

######### Authority

*[Barnhill v. Davis]{.underline}, 300 N.W.2d 104 (Iowa 1981)*

12/01

[]{#CH800 .anchor}**CHAPTER 800**

# MISREPRESENTATION

Negligent Misrepresentation

[800.1](#a8001) Negligent Misrepresentation - Where No Public Duty To
Give Information exists - Essentials For Recovery

[800.2](#a8002) Negligent Misrepresentation - Information - Definition

[800.3](#a8003) Negligent Misrepresentation - Care And Competence
Expected Of Supplier Of

Information - Nonprofessional

[800.4](#a8004) Negligent Misrepresentation - Care And Competence
Expected Of Supplier Of

Information - Professional

[800.5](#a8005) Negligent Misrepresentation - Pecuniary Interest -
Definition

[800.6](#a8006) Negligent Misrepresentation - Information May Be
Supplied Directly Or Indirectly

[800.7](#a8007) Negligent Misrepresentation - Persons For Whose Guidance
The Information Is Sought

[800.8](#a8008) Negligent Misrepresentation - Justifiable Reliance -
Definition

## Fraudulent Misrepresentation

[810.1](#a8101) Fraudulent Misrepresentation - Essentials For Recovery

[810.2](#a8102) Fraudulent Nondisclosure - Essentials For Recovery

[810.3](#a8103) Fraudulent Misrepresentation - Definition Of
Representation

[810.4](#a8104) Fraudulent Misrepresentation - Material - Definition

[810.5](#a8105) Fraudulent Misrepresentation - Knowledge Of Falsity
(Scienter) - Definition

[810.6](#a8106) Fraudulent Misrepresentation - Definition Of Intent To
Deceive

[810.7](#a8107) Fraudulent Misrepresentation - Intent To Deceive -
Persons Affected

[810.8](#a8108) Fraudulent Misrepresentation - Reliance - Generally

[810.9](#a8109) Fraudulent Misrepresentation - Reliance - Opinion

[810.10](#a8110) Fraudulent Misrepresentation - Reliance - Opinion

[]{#a8001 .anchor}800.1 Negligent Misrepresentation - Where No Public
Duty To Give Information Exists - Essentials For Recovery. The plaintiff
must prove the following propositions:

1\. The defendant on or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_,
19\_\_\_, negligently supplied (set forth in detail the information
supplied) to \[plaintiff\] \[plaintiff as one of the limited group of
persons\] which was false.

2\. The defendant had a financial interest in supplying the information.

3\. a. The defendant intended to supply the information for the benefit
and guidance of \[plaintiff\] \[plaintiff as one of the limited group of
persons\]; or

b\. The defendant knew the person who received the information intended
to supply the information for the benefit and guidance of \[plaintiff\]
\[plaintiff as one of the limited group of persons\].

4\. a. The defendant intended the information to influence \[the
transaction for which the information was supplied\] \[a transaction
substantially similar to the transaction for which the information was
supplied\]; or

b\. The defendant knew that the person who received the information
intended the information to influence \[the transaction for which the
information was supplied\] \[a transaction substantially similar to the
transaction for which the information was supplied\].

5\. The plaintiff acted in reliance on the truth of the information
supplied and was justified in relying on the information.

6\. The negligently supplied information was a proximate cause of the
plaintiff\'s damage.

7\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff cannot recover damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to recover damages in some
amount. \[If an affirmative defense is submitted, delete the second
sentence and insert the following: If the plaintiff has proved all of
these propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_, as explained in Instruction No.\_\_\_\_\_\_.\]

Authority

Restatement of Torts (Second), Section 552 (1977)

Beeck v. Kapalis, 302 N.W.2d 90 (Iowa 1981)

Larsen v. United Federal Savings & Loan Association of Des Moines, 300
N.W.2d 281 (Iowa 1981)

Ryan v. Kanne, 170 N.W.2d 395 (Iowa 1969)

Comment

Note: Use 3a or 3b, 4a or 4b depending on the evidence.

Caveat: The elements of the marshalling instruction are taken from
Restatement (552, including \"justifiable reliance\" in paragraph 5 of
the section. In discussing the necessary proof for this tort, the Iowa
Supreme Court quoted (552 verbatim in Meier v. Alfa-Laval, Inc., 454
N.W.2d 576, 581 (Iowa 1990). Nevertheless, because the specific issue
was not addressed in the case, the Committee cannot take a definitive
position and this Instruction and Instruction 800.8 should be used with
this admonition in mind.

[]{#a8002 .anchor}800.2 Negligent Misrepresentation - Information -
Definition. \"Information\" means any word or conduct asserting the
existence of a fact. Information includes opinions based on facts
equally well known to the defendant and the person who receives the
information.

Authority

Restatement of Torts (Second), Section 552, Comment b (1977)

[]{#a8003 .anchor}800.3 Negligent Misrepresentation - Care And
Competence Expected Of Supplier Of Information - Nonprofessional.
Concerning proposition No. 1 of Instruction No. \[800.1\] a person
negligently supplied information by failing to use the care or skill of
a reason- able person in obtaining or communicating the information. If
a reasonable person would investigate the information before
communicating it, the supplier must make such an investigation. In
addition, the supplier must use reasonable care of skill to

communicate the information accurately.

Authority

Restatement of Torts (Second), Section 552, Comments e and f (1977)

[]{#a8004 .anchor}800.4 Negligent Misrepresentation - Care And
Competence Expected Of Supplier Of Information - Professional.
Concerning proposition No. 1 of Instruction No. \[800.1\], a person
negligently supplies information by failing to exercise the reasonable
care or skill of a person in the same business or profession in
obtaining or communicating the information.

The person supplying the information has the duty to make any
investigation that would be made by a reasonable person in the same
business or profession.

The supplier of the information must also use the care and skill of a
reasonable person in the same business or profession in arriving at and
communicating information in the form of opinions.

Authority

Restatement of Torts (Second), Section 552, Comments e and f (1977)

[]{#a8005 .anchor}800.5 Negligent Misrepresentation - Pecuniary
Interest - Definition. Concerning proposition No. 2 of Instruction No.
\[800.1\], the test of financial interest is whether the supplier of the
information benefits financially, directly or indirectly, from supplying
the information.

Authority

Restatement of Torts (Second), Section 552, Comments c and d (1977)

[]{#a8006 .anchor}800.6 Negligent Misrepresentation - Information May Be
Supplied Directly Or Indirectly. Concerning proposition No. \[3\] \[3a\]
of Instruction No. \[800.1\], it is not necessary that the person who
acts in reliance on the information be the person to whom it was
supplied. \[It is necessary, however, for the supplier of the
information to know that the information would be passed on to the
person who acted in reliance on it.\]\*

\*Use only if element 3a of Instruction No. 800.1 is submitted.

Authority

Beeck v. Kapalis, 302 N.W.2d 90 (Iowa 1981)

Larsen v. United Federal Savings & Loan Association, 300 N.W.2d 281
(Iowa 1981)

Ryan v. Kanne, 170 N.W.2d 395 (Iowa 1969)

Restatement of Torts (Second), Section 552, Comment g (1977)

[]{#a8007 .anchor}800.7 Negligent Misrepresentation - Persons For Whose
Guidance The Information Is Sought. Concerning proposition No. \[3\]
\[3a\] of Instruction No. \[800.1\], a supplier of information is liable
only to persons for whose benefit and guidance the information is
supplied. The supplier of information must intend for the information to
reach and influence either a particular person or persons known to the
supplier or a particular group or class of persons who might reasonably
be expected to receive the information and take some action in reliance
upon it. \[It is also sufficient if the supplier of information knows
that the person who receives it intends to pass it on to a similar
person, persons, or group.\]\*

It is not necessary that the supplier of information knew the
plaintiff\'s name so long as the supplier knew the information would be
received by a group of persons including the plaintiff.

\*Use only if element No. 3a of Instruction No. 800.1 is submitted.

Authority

Restatement of Torts (Second), Section 552, Comment h (1977)

Beeck v. Kapalis, 302 N.W.2d 90 (Iowa 1980)

Larsen v. United Federal Savings & Loan Association, 300 N.W.2d 281
(Iowa 1981)

Ryan v. Kanne, 170 N.W.2d 395 (Iowa 1969)

[]{#a8008 .anchor}800.8 Negligent Misrepresentation - Justifiable
Reliance - Definition. Concerning proposition No. 5 of Instruction No.
\[800.1\], the person receiving the information must rely on the
information and the reliance must be justifiable.

It is not necessary that the information be the only reason for the
action taken by the plaintiff. It is enough if the information had a
material influence on the plaintiff\'s conduct and was a substantial
factor in bringing about the action.

Reliance is justified when a reasonably careful person would be
justified in relying on the information supplied. Reliance is not
justified if the person receiving the information known or in the
exercise of ordinary care should know that the information is false.

Authority

Lockard v. Carson, 287 N.W.2d 871, 877-78 (Iowa 1980)

Ryan v. Kanne, 170 N.W.2d 395, 401 (Iowa 1969)

Prosser, Law of Torts, Section 108 at page 715 (1971)

Comment

Note: Also, see Caveat following Instruction No. 800.1.

[]{#a8101 .anchor}810.1 Fraudulent Misrepresentation - Essentials For
Recovery. The plaintiff must prove the following propositions by a
preponderance of clear, satisfactory and convincing evidence:

1\. The defendant on or about the \_\_\_\_\_\_ day of
\_\_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_, made a representation to
\[plaintiff\] \[plaintiff as one of a class of persons\] that \[set
forth the representation made\].

2\. The representation was false.

3\. The representation was material.

4\. The defendant knew the representation was false.

5\. The defendant intended to deceive \[plaintiff\] \[plaintiff as one
of a class of persons\].

6\. The plaintiff acted in reliance on the truth of the representation
and was justified in relying on the representation.

7\. The representation was a proximate cause of the plaintiff\'s damage.

8\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff cannot recover damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to recover damages in some
amount. \[If an affirmative defense is submitted, delete the second
sentence and insert the following: If the plaintiff has proved all of
these propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_, as explained in Instruction No.
\_\_\_\_\_\_\_\_\_.\]

Authority

Beeck v. Kapalis, 302 N.W.2d 90 (Iowa 1981)

Restatement (Second) of Torts, Section 525 (1977)

[]{#a8102 .anchor}810.2 Fraudulent Nondisclosure - Essentials For
Recovery. The plaintiff must prove all of the following propositions by
a preponderance of clear, satisfactory, and convincing evidence:

1\. Special circumstances existed which gave rise to a duty of
disclosure between the plaintiff and the defendant. (Describe the
relationship found to give rise to a duty of disclosure.)\*

2\. While such relationship existed, the defendant \[was aware of the
following facts\] \[intended the following course of action\] (state the
facts or intent alleged to have been withheld).

3\. While such relationship existed, the defendant concealed or failed
to disclose \[the knowledge or intent alleged to have been withheld\].

4\. The undisclosed information was material to the transaction.

5\. The defendant knowingly failed to make the disclosure.

6\. The defendant intended to deceive the plaintiff by withholding such
information.

7\. The plaintiff acted in reliance upon the defendant\'s failure to
disclose and was justified in such reliance.

8\. The failure to disclose was a proximate cause of the plaintiff\'s
damage.

9\. The nature and extent of the plaintiff\'s damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff cannot recover damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to recover damages in some
amount.

Authority

Air Host Cedar Rapids, Inc. v. Cedar Rapids Commission, 464 N.W.2d 450
(Iowa 1990)

Sinnard v. Roach, 414 N.W.2d 100 (Iowa 1987)

Cornell v. Wunschel, 408 N.W.2d 369 (Iowa 1987)

Kunkle Water & Elec. Co. v. City of Prescott, 347 N.W.2d 648 (Iowa 1984)

Restatement (Second) of Torts, Section 551 (1977)

See American Family Service Corporation v. Michelfelder, 968 F.2d (8th
Cir. 1992)

Comment

Note: \*Nondisclosure constitutes fraud only where special circumstances
exist which give rise to a duty to communicate the concealed fact.
Cornell v. Wunschel, 408 N.W.2d at 374; Kunkle Water & Elec. v. City of
Prescott, 347 N.W.2d at 653.

Whether the special circumstances are such as to give rise to a duty of
disclosure is generally a question of law for the Court. Restatement
(Second) of Torts Section 551, Comment m (1977). Whether such special
circumstances exist is a question of fact for the jury.

As to \"clear, satisfactory and convincing\" evidence, see Iowa Civil
Jury Instruction 100.19.

[]{#a8103 .anchor}810.3 Fraudulent Misrepresentation - Definition Of
Representation. Concerning proposition no. 1 of Instruction No.
\[810.1\], \"a representation\" is any word or conduct asserting the
existence of a fact. \[It may include silence if the defendant fails to
disclose information which the defendant has a duty to disclose and
which the (plaintiff) (plaintiff as one of a class) has reason to
believe will be disclosed.\] \[A seller\'s statement of the amount of
(land) (goods) being sold is representation of fact, even if the words
\"more or less\" are used. The words \"more or less\" indicate that the
amount of (land) (goods) being sold is substantially the same as stated
by the seller.\] \[A representation of fact includes an opinion
expressed for the deliberate purpose of deceiving another.\] \[A
representation of fact includes a promise to perform a future act.\]

A representation also includes an opinion. An opinion is a statement of
a person\'s belief that a fact exists or their judgment as to quality,
value, authenticity, or similar matter. A representation of fact implies
that the maker has definite knowledge or information supporting their
statement; a representation of opinion does not. You must consider all
of the surrounding circumstances, including the exact words used, in
deciding whether a representation is one of fact or opinion.

Authority

Lockard v. Carson, 287 N.W.2d 871 (Iowa 1980)

Grefe v. Ross, 231 N.W. 2d 863 (Iowa 1975)

Restatement (Second) of Torts, Section 525, Comments b and d, and
Section 538A (1977)

Comment

Note: Use only those portions of the instruction supported by the
evidence.

6/87

[]{#a8104 .anchor}810.4 Fraudulent Misrepresentation - Material -
Definition. Concerning proposition \[No. 3 of Instruction 810.1\], \[No.
4 of Instruction No. \[810.2\]\], a representation is \"material\" if:

1\. A reasonable person would consider it as important in making a
decision.

2\. The defendant knows or has reason to know that the \[plaintiff\]
\[plaintiff as one of a class of persons\] considers, or is likely to
consider, the representation as important in making a decision.

3\. The representation influences a person to enter into a transaction
which would not have occurred otherwise.

Authority

Smith v. Peterson, 282 N.W.2d 761, 765 (Iowa 1979)

Restatement (Second) of Torts, Section 538, Comments d and f (1977)

Comment

Note: Use only those portions of the instruction supported by the
evidence.

[]{#a8105 .anchor}810.5 Fraudulent Misrepresentation - Knowledge Of
Falsity (Scienter) - Definition. Concerning proposition \[No. 4 of
Instruction No. \[810.1\]\] \[No. 5 of Instruction No. 810.2\]\], the
defendant knew the representation was false if any of the following
situations existed:

1\. The defendant actually knew or believed the representation was
false.

2\. The defendant made the representation without belief in its truth or
in reckless disregard of whether it was true or false.

3\. The defendant falsely stated or implied that the representation was
based on \[his\] \[her\] personal knowledge or investigation.

4\. The defendant made a representation which \[he\] \[she\] knew or
believed was materially misleading because it left out unfavorable
information.

5\. The defendant stated \[his\] \[her\] intention to do or not to do
something when \[he\] \[she\] did not actually have that intention.

6\. The defendant knew the representation could be understood in both a
true and false manner, and made the representation (a) intending that it
be understood in the false sense, (b) having no belief as to how it
would be understood, or (c) in reckless disregard of how it would be
understood.

7\. The defendant\'s \[special relationship of trust and confidence to
the plaintiff\] \[special source of information\] made it the
defendant\'s duty to know whether the representation was true or false.

Authority

Beeck v. Kapalis, 302 N.W.2d 90 (Iowa 1981)

Mills County State Bank v. Fisher, 282 N.W.2d 712 (Iowa 1979)

B & B Asphalt Co., Inc. v. T. S. McShane Co., 242 N.W.2d 279 (Iowa 1979)

Grefe v. Ross, 231 N.W.2d 863 (Iowa 1975)

Hall v. Wright, 261 Iowa 758, 156 N.W.2d 661 (1968)

Restatement (Second) of Torts, Section 526, Comments c , d, e and f, and
Sections 527, 529 and 530 (1977)

Comment

Note: Use only those portions of the instruction supported by the
evidence.

[]{#a8106 .anchor}810.6 Fraudulent Misrepresentation - Definition Of
Intent To Deceive. Concerning proposition \[No. 5 of Instruction No.
\[810.1\]\], \[No. 6 of Instruction No. 810.2\]\], the defendant
intended to deceive the plaintiff if any of the following situations
existed when \[he\] \[she\] made a representation:

1\. The defendant wanted to deceive the plaintiff or believed that the
plaintiff would in all likelihood be deceived.

2\. The defendant had information from which a reasonable person would
conclude that the plaintiff would be deceived.

3\. The defendant made the representation without concern for the truth.

Authority

B & B Asphalt Co., Inc. v. T.S. McShane Co., 242 N.W.2d 279 (Iowa 1976)

Grefe v. Ross, 231 N.W.2d 863 (Iowa 1975)

Restatement (Second) of Torts, Section 531, Comments c and d, (1977)

[]{#a8107 .anchor}810.7 Fraudulent Misrepresentation - Intent To
Deceive - Persons Affected. Concerning proposition \[No. 5 of
Instruction No. \[810.1\]\] \[No. 6 of Instruction No. 810.2\]\], the
defendant is liable only to a person or group of persons whom \[he\]
\[she\] intended or had reason to expect would act or refrain from
acting in reliance on the representation. \[It is not necessary that the
defendant knew the plaintiff\'s name so long as the defendant intended
or had reason to expect that the representation would be received and
relied upon by a group of persons including the plaintiff.\] A person
has reason to expect a result if \[he\] \[she\] has information from
which a reasonable person would conclude that the result will follow.

The defendant is liable only to those persons who rely on the
representation in the type of transaction in which the defendant intends
or has reason to expect the conduct of others will be affected.

Authority

Restatement (Second) of Torts, Section 531, Comments b, c, d, e and g
(1977)

Comment

Note: Use the second paragraph of this instruction only if supported by
the evidence.

[]{#a8108 .anchor}810.8 Fraudulent Misrepresentation - Reliance -
Generally. Concerning proposition \[No. 6 of Instruction No. \[810.1\]\]
\[No. 7 of Instruction No. \[810.2\]\], the plaintiff must rely on the
representation and the reliance must be justified.

It is not necessary that the representation be the only reason for the
plaintiff\'s action. It is enough if the representation was a
substantial factor in bringing about the action.

Whether reliance is justified depends on what the plaintiff can
reasonably be expected to do in light of their own information and
intelligence. Reliance is not justified if the representation is of an
unimportant fact or is obviously false.

Authority

Sedco Intern. S.A. v. Cory, 683 F.2d 1201 (8th Cir. 1982)

Lockhart v. Carson, 287 N.W.2d 871 (Iowa 1980)

Restatement (Second) of Torts, Section 537, Comments a and b; and
Sections 540 and 541 (1977)

Comment

Note: Use the last sentence of this instruction only if supported by the
evidence

[]{#a8109 .anchor}810.9 Fraudulent Misrepresentation - Reliance -
Opinion. Concerning proposition No. \[6 of Instruction No. \[810.1\]\]
\[No. 7 of Instruction No. \[810.2\]\], the plaintiff is justified in
relying on the defendant\'s representation of opinion only if one or
more of the following situations exist:

1\. The defendant has or claims to have special knowledge of the matter
that the plaintiff does not have.

2\. The defendant has a fiduciary or other similar relation of trust and
confidence with the plaintiff.

3\. The defendant has successfully tried to gain the plaintiff\'s
confidence.

4\. The defendant knows of some special reason to expect that the
plaintiff will rely on the opinion.

Authority

Restatement (Second) of Torts, Section 542 (1977)

Comment

Note: Use only those portions of the instruction supported by the
evidence.

[]{#a8110 .anchor}810.10 Fraudulent Misrepresentation - Reliance -
Opinion. Concerning proposition No. 6 of Instruction No. \[810.1\]\]
\[No. 7 of Instruction No. \[810.2\]\], a person is presumed to be able
to form their own opinion about the quality or value of ordinary
merchandise or the wisdom of entering into a routine transaction. A
buyer of ordinary merchandise is not justified in relying upon the
seller\'s \"puffing,\" \"sales talk,\" or other general opinion of
quality or value. A buyer may be justified in relying upon a statement
that the merchandise is satisfactory for the buyer\'s announced purpose.

Authority

Smith v. Peterson, 282 N.W.2d 761 (Iowa Ct. App. 1979)

Rowe Mfg. Co. v. Curtis-Straub Co., 223 Iowa 858, 273 N.W.895 (1937)

Restatement (Second) of Torts, Section 542, Comments d and e (1977)

Comment

Note: Use the last sentence of this instruction only if supported by the
evidence.

# CHAPTER 900

## PREMISES LIABILITY

[900.1](#a9001) Essentials For Recovery - Condition Of Premises - Duty
To Invitees

[900.2](#a9002) Essentials For Recovery - Condition Of Premises - Duty
To Licensees

[900.3](#a9003) Essentials For Recovery - Condition Of Premises - Duty
To Trespassers - Negligence

[900.4](#a9004) Essentials For Recovery - Condition Of Premises - Duty
To Trespassers - Willful Or Wanton

[900.5](#a9005) Condition of the Premises - Knowledge Or Notice Of The
Condition

[900.6](#a9006) Known or Obvious

[900.7](#a9007) Known or Obvious - Defined

[]{#a9001 .anchor}900.1 Essentials For Recovery - Condition Of
Premises - Duty To Invitees. The plaintiff must prove all of the
following propositions:

1\. The defendant knew or in the exercise of reasonable care should have
known of a condition on the premises and that it involved an
unreasonable risk of injury to a person in the plaintiff\'s position.

2\. The defendant knew or in the exercise of reasonable care should have
known:

a\. the plaintiff would not discover the condition, or

b\. the plaintiff would not realize the condition presented an
unreasonable risk of injury, or

c\. the plaintiff would not protect \[himself\] \[herself\] from the
condition.

3\. The defendant was negligent in (set forth the particulars of the
claim of negligence in failing to protect the plaintiff).

4\. The negligence was a proximate cause of the plaintiff\'s damage.

5\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Wieseler v. Sisters of Mercy Health Corp., 540 N.W. 2d 445 (Iowa 1995)

Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699 (Iowa 1995)

Baumler v. Hemeseth, 534 N.W.2d 650 (Iowa 1995)

Konicek v. Loomis Bros. Inc., 457 N.W.2d 614 (Iowa 1990)

Stover v. Lakeland Squareowners Ass\'n, 434 NW 2d 866 (Iowa 1989)

Hanson v. Town & Country Shopping Center, 259 Iowa 542, 144 N.W.2d 870
(1966)

Restatement of Torts (Second), sections 343 and 343A

Comment

Caveat: The Iowa Supreme Court has noted that it has \"backed away from
conclusively basing a land possessor\'s duty of care on the status of
the injured parties.\" Pottebaum v Hinds, 347 N.W. 2d 642 (Iowa 1984).
Thus far, however, the court has not abolished the distinction among
duties to invitees, licensees and trespassers.

Note: The Iowa Supreme court has held in Kragel, supra, a case involving
an invitee, that the duty of the defendant owner is nondelegable.

10/97

[]{#a9002 .anchor}900.2 Essentials for Recovery - Condition Of
Premises - Duty to Licensees. The Plaintiff must prove all of the
following propositions:

1\. The defendant knew or in the exercise of reasonable care should have
known of a condition on the premises and that it involved an
unreasonable risk of injury to a person in the plaintiff\'s position.

2\. The condition was one that a person in the defendant\'s position
should have expected would not have been discovered or realized by the
plaintiff.

3\. The plaintiff did not know or have reason to know of the condition
and the risk involved.

4\. The defendant was negligent in \[set forth the particulars of the
claim of negligence in failing to protect the plaintiff).

5\. The negligence was a proximate cause of the plaintiff\'s damage.

6\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No. \_\_\_\_\_.\]

Authority

Bigalk v. Bigalk, 540 N.W.2d 247 (Iowa 1995)

Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699 (Iowa 1995)

Sullivan v. First Presbyterian Church, 260 Iowa 1373, 152 N.W.2d 628
(1967)

Restatement (Second) of Torts, sections 341 and 342

Comment

Note: The Iowa Supreme Court has held in Kragel, supra, a case involving
an invitee, that the duty of the defendant owner is nondelegable.

[]{#a9003 .anchor}900.3 Essentials For Recovery - Condition Of
Premises - Duty To Trespassers - Negligence . The plaintiff must prove
all of the following propositions:

1\. The defendant knew or had reason to know of the presence of the
plaintiff on the premises.

2\. The defendant afterward was negligent by failing to exercise
reasonable care for the plaintiff\'s safety by \[set forth the
particulars of the claimed negligence\].

3\. The activities were the proximate cause of the plaintiff\'s damage.

4\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Champlin v. Walker, 249 N.W.2d 839 (Iowa 1977)

Restatement of Torts (Second), sections 333 and 336

Comment

Note: The Iowa Supreme Court has noted but not addressed adoption of
Restatement of Torts (Second), sections 334 and 370. See Champlin v.
Walker, supra.

[]{#a9004 .anchor}900.4 Essential For Recovery - Condition Of Premises -
Duty To Trespassers - Willful Or Wanton. The plaintiff must prove all of
the following propositions.

1\. The Defendant\'s actions in \[set forth the action or conditions
complained of\] were willful or wanton. Actions are willful if
intentionally done to cause harm.

2\. The activities were the proximate cause of the plaintiff\'s damage.

3\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.\]

Authority

Champlin v. Walker, 249 N.W.2d 839 (Iowa 1977)

Restatement of Torts (Second), sections 333 and 336

Comment

Note: The Iowa Supreme Court has noted but not addressed adoption of
Restatement of Torts (Second), sections 334 and 370. See Chaplin v.
Walker, supra.

[]{#a9005 .anchor}900.5 Condition Of The Premises - Knowledge Or Notice
Of The Condition. The \[owner\] \[occupant\] of premises is presumed to
know all conditions on the premises that are caused or created by the
\[owner\] \[occupant\] or the \[owner\'s\] \[occupant\'s\] \[agent\]
\[employee\]. The \[owner\] \[occupant\] of premises is not responsible
for an injury suffered by a person on the premises which resulted from a
condition of which the \[owner\] \[occupant\] had no knowledge, unless
the condition existed for a long enough time that in

the exercise of reasonable care the \[owner\] \[occupant\] should have
known about it.

Authority

Weidenhaft v. Shoppers Fair, 165 N.W.2d 756 (Iowa 1969)

Ling v. Hosts, Inc. 164 N.W.2d 123 (Iowa 1969)

[]{#a9006 .anchor}900.6 Known Or Obvious. Concerning number 2 of
Instruction No. \[900.1\], a defendant is not liable for injuries or
damages caused by a condition that is known or obvious to a person in
the plaintiff\'s position unless the defendant should anticipate the
harm despite such knowledge or obviousness.

Authority

Wieseler v Sisters of Mercy Health Corp., 540 N.W. 2d 445 (Iowa 1995)

Restatement (Second) of Torts, section 343A

10/97

[]{#a9007 .anchor}900.7 Known or Obvious - Defined. A condition is
\"known\" if one is aware of conscious of its existence and of the risk
of harm it presents.

A condition is \"obvious\" when both the condition and risk of harm are
apparent to and would be recognized by a reasonable person, in the
position of a visitor, exercising ordinary perception, intelligence, and
judgment.

Authority

Konicek v. Loomis Bros., 457 N.W. 2d 614 (Iowa 1990)

Restatement (Second) of Torts, section 343A, comment b

10/97

######## CHAPTER 1000

# PRODUCTS LIABILITY

[1000.1](#a10001) Manufacturing Defect - Essentials for Recovery

[1000.2](#a10002) Design Defect - Essentials for Recovery

[1000.3](#a10003) Inadequate Instructions or Warnings -- Essentials for
Recovery

[1000.4](#a10004) Reasonable Alternative Design Requirement

[1000.5](#a10005) Enhanced Injury (Crashworthiness) -- Essentials For
Recovery

[1000.6](#a10006) Change In Condition Of The Product

[1000.7](#a10007) Directions or Warning - Post-Sale - Negligence

[1000.8](#a10008) Proximate Cause

[1000.9](#a10009) Assumption Of Risk

1000.10 Blank

[1000.11](#a100011) Affirmative Defense - State Of The Art - Strict
Liability

[1000.12](#a100012) Warning - Later Acquired Knowledge (deleted with new
instruction to cite to)

Comment

Actions for the recovery of damages arising from the use of or exposure
to tangible products often allege theories of negligence, strict
liability and breach of warranty alternatively. It may be appropriate to
submit more than one theory to the jury in a particular case. However,
the court has stated \"\[few cases will sufficiently involve the
theories of breach of warranty and strict liability to warrant
presenting both theories to a jury.\" Nelson v. Todd\'s Ltd. 426 N.W.2d
120, 125 (Iowa 1988).

It may not be necessary to submit both strict liability and negligence
in a defective design case. Hillrichs v. AVCO Corp., 478 N.W.2d 70,
75-76 (Iowa 1991).

Purely economic injuries, without accompanying physical injury, are not
actionable in strict liability. Nelson v. Todd\'s Ltd., 426 N.W.2d 120,
123 (Iowa 1988).

[]{#a10001 .anchor}1000.1 **Manufacturing Defect - Essentials for
Recovery.**

In order to recover on a claim that defendant\'s product contains a
manufacturing defect, the plaintiff must prove all of the following
propositions:

1\. The defendant sold or distributed the ([product]{.underline});

2\. The defendant was engaged in the business of selling or distributing
the ([product]{.underline});

3\. The ([product]{.underline}) at the time it left defendant\'s control
contained a manufacturing defect that departed from its intended design,
in one or more of the following ways:

([Set out particulars as supported by the evidence]{.underline}).

4\. The manufacturing defect was a proximate cause of plaintiff\'s
damages; and

5\. The amount of damages.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No. \_\_\_.\]

**Authority**

[Wright v. Brooke Group Ltd.]{.underline}, 652 N.W.2d 159, 178 (Iowa
2002)

[Restatement (Third) Torts, Products Liability]{.underline}, §§ 1, 2(a)
and comment c.

**[Comment]{.underline}**

A manufacturing defect claim should not be submitted when the product is
in the condition intended by the manufacturer. [Wright v. Brooke Group
Ltd.]{.underline}, 652 N.W.2d at 178

Rev. 9/03

[]{#a10002 .anchor}1000.2 **Design Defect - Essentials for Recovery.**

In order to recover on the claim that defendant\'s product was defective
in design, the plaintiff must prove all of the following propositions:

1\. The defendant sold or distributed the ([product]{.underline});

2\. The defendant was engaged in the business of selling or distributing
the ([product]{.underline});

3\. The product was in a defective condition at the time it left
defendant\'s control, in one or more of the following ways:

([Set out particulars as supported by the evidence.]{.underline})

4\. A reasonable alternative safer design could have been practically
adopted at the time of sale or distribution.

5\. The alternative design would have reduced or avoided the foreseeable
risks of harm posed by the ([product]{.underline});

6\. The omission of the alternative design renders the
([product]{.underline}) not reasonably safe;

7\. The alternative design would have reduced or prevented the
plaintiff\'s harm;

8\. The design defect was a proximate cause of plaintiff\'s damage; and

9\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No. \_\_\_.\]

**Authority**

[Wright v. Brooke Group Ltd.]{.underline}, 652 N.W.2d 159, 168-169 (Iowa
2002)

[Restatement (Third) Torts, Products Liability]{.underline}, §§1, 2(b)
and comment f.

[]{#a10003 .anchor}1000.3 **Inadequate Instructions or Warnings --
Essentials for Recovery.**

In order to recover on a claim that defendant\'s product was defective
because of inadequate instructions or warnings, the plaintiff must prove
all of the following propositions:

1\. Defendant sold or distributed the ([product]{.underline});

2\. The defendant was engaged in the business of selling or distributing
the ([product]{.underline});

3\. The foreseeable risks of harm posed by the ([product]{.underline})
could have been reduced or avoided by the provision of reasonable
instructions or warnings, in one or more of the following ways:

([Set out particulars as supported by the evidence]{.underline}).

4\. The omission of the instruction(s) or warning(s) renders the
([product]{.underline}) not reasonably safe;

5\. The risk to be addressed by the instruction(s) or warning(s) was not
obvious to, or generally known by, foreseeable product users;

6\. The omission of the instruction(s) or warning(s) was a proximate
cause of plaintiff\'s damages; and

7\. The amount of damages.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No. \_\_\_.\]

**Authority**

[Wright v. Brooke Group Ltd.]{.underline}, 652 N.W.2d 159, 169-71 (Iowa
2002)

[Restatement (Third) Torts, Products Liability]{.underline}, §§1, 2(c),
and comments i. and j.

Rev. 9/03

[]{#a10004 .anchor}1000.4 **Reasonable Alternative Design Requirement.**

Concerning propositions 4, 5 and 6 of Instruction
No.[\[1000.2]{.underline}\], you may consider the following factors and
their interaction to determine whether an alternative design is
reasonable and whether its omission renders the ([product]{.underline})
not reasonably safe:

-   The magnitude and probability of the foreseeable risks of harm;

-   The instructions and warnings accompanying the
    ([product);]{.underline}

-   Consumer expectations about product performance and the dangers
    attendant to use of the ([product]{.underline}), including
    expectations arising from product portrayal and marketing.

-   Whether the risk presented by the ([product]{.underline}) is open
    and obvious to, or generally known by, foreseeable users;

-   The technological feasibility and practicality of the alternative
    design;

-   Whether the alternative design could be implemented at a reasonable
    cost;

-   The relative advantages and disadvantages of the
    ([product]{.underline}) as designed and as it alternatively could
    have been designed;

-   The likely effects of the alternative design on product longevity,
    maintenance, repair, esthetics and on the efficiency and utility of
    the ([product]{.underline});

-   The range of consumer choice among similar products, with and
    without the alternative design;

-   The overall safety of the ([product]{.underline}) with and without
    the alternative design and whether the alternative design would
    introduce other dangers of equal or greater magnitude;

-   Custom and practice in the industry and how defendant\'s design
    compares with other competing products in actual use; and

-   Any other factor shown by the evidence bearing on this question.

**Authority**

[Wright v. Brooke Group Ltd.]{.underline}, 652 N.W.2d 159, 170-71 (Iowa
2002)

[Restatement (Third) Torts, Products Liability]{.underline}, § 2,
comments d, f, g and j.

**[Comment]{.underline}**

Submit only those factors supported by the evidence.

Rev. 9/03

[]{#a10005 .anchor}1000.5 **Enhanced Injury (Crashworthiness) --
Essentials For Recovery.** In order to recover on the claim of enhanced
injury, the plaintiff must prove all of the following propositions:

1\. The defendant designed the (product).

2\. The defendant was engaged in the business of designing the
(product).

3\. The (product) was in a defective condition at the time it left
defendant's control in one or more of the following ways:

(Set out particulars as supported by the evidence).

4\. The plaintiff used the (product) in an intended manner or in a
manner reasonably foreseeable by the defendant.

5\. The (product) was expected to and did reach the plaintiff without
substantial change in its condition.

6\. An alternative practicable, safer design was available.

7\. The nature and extent of the injuries which plaintiff would have
incurred if the alternative design had been used.

8\. The defective design was a proximate cause of the enhanced injuries.

9\. The extent of the enhanced injuries.

10\. The nature and extent of plaintiff's damages.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_\_\_\_.\]

Authority

[Reed v. Chrysler Corp.]{.underline}, 494 N.W.2d 224, 226-28 (Iowa 1992)

[Hillrichs v. AVCO Corp.]{.underline}, 478 N.W.2d 70, 74-76 (Iowa 1991)

[Wernimont v. International Harvester Corp.]{.underline}, 309 N.W.2d
137, 140 (Iowa App. 1981)

Rev. 9/03

[]{#a10006 .anchor}1000.6 Change In Condition Of The Product. The
requirement that a product be free from defects at the time it left the
defendant\'s control includes the requirement that there be \[proper
packaging\] \[necessary sterilization\] precautions to keep the product
free from defects for a normal length of time when handled in a normal
manner.

However, the defendant is not responsible if the product is delivered
free from defects, and later mishandling changes or other causes beyond
their control make the product defective, unless mishandling, changes or
other causes beyond defendant\'s control was reasonably foreseeable by
the defendant.

Authority

Leaf v. Goodyear Tire and Rubber, 590 N.W.2d 525 (Iowa 1999)

Henkel v. R and S bottling Company, 323 N.W.2d 185 (Iowa 1982)

Aller v. Rodgers Machinery Mfg. Co. Inc., 268 N.W.2d 830, (Iowa 1978)

Cooley v. Quick Supply Company, 221 N.W.2d 763 (Iowa 1974)

Restatement (Second) of Torts, Section 402A, Comment g and p (1965)

[]{#a10007 .anchor}1000.7 Directions or Warning - Post-Sale -
Negligence. A supplier of a product has a duty to warn the user of the
product following \[sale\]\[distribution\] if:

1\. the supplier knows or should reasonably know that the product poses
a substantial risk of harm to persons or property; and

2\. the supplier can identify those to whom a warning should be provided
and it may reasonably be assumed those persons are unaware of the risk
of harm; and

3\. a warning can be effectively communicated to and acted on by those
to whom a warning might be provided; and

4\. the risk of harm is sufficiently great to justify the burden of
providing the warning.

Under these circumstances, the supplier has a duty to exercise
reasonable care to inform the user of the product of the dangerous
condition or of the facts which make it likely to be dangerous.

Authority

[Lovick vWil-Rich]{.underline}, 588 N.W.2d 688 (Iowa 1999)

Restatement (Third) of Torts: Products Liability section 10 (1997)

Rev. 9/03

[]{#a10008 .anchor}1000.8 Proximate Cause. A defect in a product is a
proximate cause of damage when it is a substantial factor in producing
damage and when the damage would not have happened except for the
defect.

\"Substantial\" means the defect has such an effect in producing damage
as to lead a reasonable person to regard it as a cause.

Authority

Jones v. City of Des Moines, 355 N.W.2d 49 (Iowa 1984)

Rev. 9/03

[]{#a10009 .anchor}1000.9 Assumption Of Risk. The defendant claims the
plaintiff voluntarily assumed the risk by:

(Set out the particulars supported by the evidence.)

To prove this defense, the defendant must prove each of the following
propositions:

1\. The plaintiff knew the \[defect\] \[dangerous condition\] was
present.

2\. The plaintiff understood the nature of the danger to \[himself\]
\[herself\].

3\. Nevertheless, the plaintiff unreasonably, freely and voluntarily
used the product.

4\. The plaintiff\'s assumption of risk was a proximate cause of
plaintiff\'s damage.

If the defendant fails to prove any of these propositions, the defendant
has not proved this defense. If the defendant has proved all of these
propositions, then you will include this fault in the total percentage
of plaintiff\'s fault you find in accordance with the special verdict
submitted with these instructions.

Authority

Gremmel v. Junnie\'s Lounge, Ltd., 397 N.W.2d 717 (Iowa 1986)

Martin v. Heddinger, 373 N.W.2d 486 (Iowa 1985) (Elements of Assumption
of Risk)

Williams v. Brown Manufacturing Co., 261 N.E.2d 305, 312 (Ill. 1979)
cited specifically in Hawkeye Security Insurance Company v. Ford Motor
Company, 199 N.W.2d 373 (Iowa 1972)

See: Restatement (Second) of Torts, Section 496A, B, C, D, E, F, and G.

60 Iowa Law Review 1.

Iowa Civil Jury Instructions Chapter 400

Comment

Caveat: Further case law clarification is necessary before submitting an
instruction correlating the statutory provisions and prior case law in
misuse of a product. Compare Iowa Code Section 668.2 with Hughes v.
Magic Chef, Inc., 288 N.W. 2d 542 (Iowa 1980)

Rev. 9/03

1000.10 **Left Blank**

[]{#a100011 .anchor}1000.11 **Affirmative Defense -- State Of the Art --
Strict Liability.** This Instruction is withdrawn. [Wright v. Brooke
Group Ltd.]{.underline}, 652 N.W.2d 159 (Iowa 2002) makes "State of the
Art" an element of the plaintiff's proof in product liability cases, but
remains an affirmative defense under Iowa Code section 668.12

[]{#a100012 .anchor}1000.12 Post-sale Duty to Warn. See [Lovick v.
Wil-Rich]{.underline}, 588 N.W.2d 688 (Iowa 1999)

[]{#CH1100 .anchor}**CHAPTER 1100**

# WARRANTY

[1100.1](#a11001) Essentials For Recovery - Express Warranty

[1100.2](#a11002) Express Warranty - Defined

[1100.3](#a11003) Reliance On Express Warranty

[1100.4](#a11004) Breach Of Express Warranty

[1100.5](#a11005) Implied Warranty Of Fitness For Particular Purpose -
Definition

[1100.6](#a11006) Essentials For Recovery - Implied Warranty Of Fitness
For Particular Purpose

[1100.7](#a11007) Fitness - Particular Purpose

[1100.8](#a11008) Reliance - Particular Purpose

[1100.9](#a11009) Implied Warranty Of Fitness For Particular Purpose
Contract For Services - Definition

[1100.10](#a110010) Implied Warranty Of Merchantability - Defined

[1100.11](#a110011) Essentials For Recovery - Implied Warranty Of
Merchantability

[1100.12](#a110012) Merchant - Definition

[1100.13](#a110013) Merchantability - Definition

[]{#a11001 .anchor}1100.1 Essentials For Recovery - Express Warranty.
The plaintiff must prove all of the following propositions:

1\. The defendant sold \[description of the product or service sold\]
and expressly warranted \[the particulars alleged by plaintiff\].

2\. The plaintiff made the purchase relying on the express warranty.

3\. The \[description of the product or service\] did not conform to the
express warranty.

4\. The breach of express warranty was a proximate cause of the
plaintiff\'s damage.

5\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Comment

Note: If there is a factual dispute as to whether the property
constitutes \"goods\", see Iowa Code section 554.2105.

Caveat: Iowa Code section 668.1 defines fault to include breach of
warranty. Insufficient case authority exists to submit an instruction
including the defense of comparative fault.

[]{#a11002 .anchor}1100.2 Express Warranty - Defined. An express
warranty is any \[affirmation of fact\] \[promise\] by a seller about a
product or service which naturally or ordinarily leads the buyer to
purchase the product or service, and the buyer purchases the product or
service relying upon the \[affirmation\] \[promise\].

In order for an \[affirmation of fact\] \[promise\] to be an express
warranty, no particular form of words have to be used, nor do the terms
\"warrant\" or \"guarantee\" have to be used, nor does the seller have
to intend to make a warranty. The warranty must relate to a fact and not
an opinion about the quality or condition of the product or service
sold. An expression of opinion or belief only, a statement of value, or
mere words of praise do not create a warranty.

Authority

Iowa Code section 554.2313

[]{#a11003 .anchor}1100.3 Reliance On Express Warranty. The fact that a
buyer may, to some extent, rely upon their own judgment in purchasing
the goods does not prevent them from also relying upon an express
warranty made by the seller.

Authority

Ertl Co. v. Lange Plastics Co., 158 N.W.2d 93 (Iowa 1968)

[]{#a11004 .anchor}1100.4 Breach Of Express Warranty. A breach of
express warranty occurs when defects are substantial and sufficiently
serious so that the \[product\] \[service\] fails to materially comply
with the express warranty. It is not enough if the defects are small,
minor or insignificant \[or that the defects are only the natural result
of the age of a used product\].

[]{#a11005 .anchor}1100.5 Implied Warranty Of Fitness For Particular
Purpose - Definition. Where at the time of contracting, the seller has
reason to know the particular purpose for which the \[product or
service\] is required and the buyer is relying on the seller\'s skill or
judgment to select or furnish a suitable \[product or service,\] there
is an implied warranty the goods shall be fit for the particular
purpose.

Authority

Iowa Code section 554.2315

[]{#a11006 .anchor}1100.6 Essentials For Recovery - Implied Warranty Of
Fitness For Particular Purpose. Plaintiffs must prove all of the
following propositions:

1\. At the time of the sale the defendant had reason to know the
particular purpose of the \[product or service\].

2\. The defendant had reason to know the plaintiff was relying on the
defendant\'s skill or judgment to \[select\] \[furnish\] \[product or
service\].

3\. The plaintiff relied upon the defendant\'s skill or judgment.

4\. The \[product or service\] was not fit for the particular purpose.

5\. The failure of the \[product or service\] to fit the particular
purpose was a proximate cause of the plaintiff\'s damage.

6\. Notice was given to the defendant. \[Add this element only when
appropriate.\]

7\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Comment

Note: If there is a factual dispute as to whether the property
constitutes \"goods\", see Iowa Code section 554.2105.

Caveat: Iowa Code section 668.1 defines fault to include breach of
warranty. Insufficient case authority exists to submit an instruction
including the defense of comparative fault.

[]{#a11007 .anchor}1100.7 Fitness - Particular Purpose. When the
ordinary purpose of a product is the same as the buyer\'s particular
purpose, the buyer must still prove the seller knew the buyer\'s
particular purpose and the buyer was relying on the seller\'s skill and
judgment to furnish a suitable product or service.

No specific conversation between the parties is necessary with respect
to the particular purpose. The particular purpose may arise from the
facts and circumstances surrounding the transaction or past transactions
between the parties.

Authority

Van Wyk v. Norden Laboratories, 345 N.W.2d 81 (Iowa 1984)

Jacobson v. Benson Motors, Inc., 216 N.W.2d 396 (Iowa 1974)

[]{#a11008 .anchor}1100.8 Reliance - Particular Purpose. It is not
enough that the buyer relied upon the general reputation or integrity of
the seller. It must appear the seller had special skill or judgment
regarding the product and its intended use, and the buyer relied upon
the seller\'s special skills or judgment.

The buyer\'s reliance on the seller\'s skill or judgment need not be a
total reliance. The buyer may rely partly on their own judgment and
partly on the seller\'s skill and judgment.

Authority

Dotts v. Bennett, 382 N.W.2d 85 (Iowa 1986)

Peters v. Lyons, 168 N.W.2d 759 (Iowa 1969)

[]{#a11009 .anchor}1100.9 Implied Warranty Of Fitness For Particular
Purpose - Contract For Services - Definition. When a contractor agrees
to build, install or perform work, there is an implied agreement that
the building, installation or work performed will be sufficient for the
particular purpose desired or to accomplish a certain result.

Authority

Semler v. Knowling, 325 N.W.2d 395 (Iowa 1982)

Comment

Note: Tailor Instruction 1100.9 to contracted services.

[]{#a110010 .anchor}1100.10 Implied Warranty Of Merchantability -
Defined. When the seller is a merchant, and a contract for the sale of
goods exists between the buyer and the seller, there is an implied
warranty that the goods shall be merchantable.

Authority

Iowa Code section 554.2314(1)

Dotts v. Bennett, 382 N.W.2d 85 (Iowa 1986)

Comment

Note: If there is a factual dispute as to whether the seller is a
merchant, tailor the instruction accordingly. Iowa Code section
554.2104(1).

[]{#a110011 .anchor}1100.11 Essentials For Recovery - Implied Warranty
Of Merchantability. The plaintiff must prove all of the following
propositions:

1\. Defendant was a merchant as defined in Instruction
No.\_\_\_\_\_\_\_\_, at the time \[he, she or they\] sold \[description
of the product or service.\]

2\. The \[description of the product or service\] was not merchantable
as defined in Instruction No.\_\_\_\_\_\_.

3\. Notice was given to the defendant. \[Add this element only when
appropriate.\]

4\. The lack of merchantability was a proximate cause of the
plaintiff\'s damage.

5\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Comment

Note: If there is a factual dispute as to whether the property
constitutes \"goods\", see Iowa Code section 554.2105.

Note: Plaintiff may be a third party or the buyer. See Iowa Code section
554.2318.

Caveat: Iowa Code section 668.1 defines fault to include breach of
warranty. Insufficient case authority exists to submit an Instruction
including the defense of comparative fault.

[]{#a110012 .anchor}1100.12 Merchant - Definition. Merchants are persons
\[who deal in products or services of the kind in question\] \[who
hold\] themselves out as having knowledge or skill specific or
particular to the practices or products or services in question\]
\[whose knowledge or skill \[specific or particular\] to the practices,
products or services in question may be attributed to them by their
employment of an agent or other intermediary\] \[who by their occupation
hold themselves out as having such knowledge or skill\].

The term merchant does not include a casual or inexperienced seller.

Authority

Iowa Code section 554.2104(1)

Dotts v. Bennett, 382 N.W.2d 85 (Iowa 1986)

[]{#a110013 .anchor}1100.13 Merchantability - Definition. Merchantable
means \[set forth applicable statutory definition of \"merchantability\"
under Iowa Code section 554.2314(2)\].

[]{#CH1200 .anchor}**CHAPTER 1200**

# BUSINESS RELATIONS - INTERFERENCE

[1200.1](#a12001) Intentional Interference With Contract - Essentials
For Recovery

[1200.2](#a12002) Intentional Interference With Prospective Business
Advantage -Essentials For Recovery

[1200.3](#a12003) Interference With Contract - Definition Of Contract

[1200.4](#a12004) Interference With Contract - Knowledge

[1200.5](#a12005) Interference With Contract - Improper

[1200.6](#a12006) Intentional Interference

[1200.7](#a12007) Interference With Prospective Business Advantage -
Definitions

[1200.8](#a12008) Interference With Prospective Business Advantage -
Improper Interference

[]{#a12001 .anchor}1200.1 Intentional Interference With Contract -
Essentials For Recovery. The Plaintiff must prove all of the following
propositions:

1\. The plaintiff had a contract with (name of third person).

2\. The defendant knew of the contract.

3\. The defendant intentionally and improperly interfered with the
contract by (set out the particulars supported by the evidence).

4\. a. The interference caused \[(name of third person)\] \[the
plaintiff\] not to perform the contract; or

b\. The interference caused the plaintiff\'s performance of the contract
to be more burdensome or expensive.

5\. The nature and amount of damage.

If the plaintiff has failed to prove any one or more of these
propositions, the plaintiff is not entitled to damages. If the plaintiff
has proved all of these propositions, the plaintiff is entitled to
damages in some amount. \[If an affirmative defense is submitted, delete
the second sentence and insert the following: If the plaintiff has
proved all of these propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751 (Iowa 1999)

Financial Marketing Services, Inc., v. Hawkeye Bank, 588 N.W.2d 450
(Iowa 1999)

Nesler v. Fisher and Company, Inc., 452 N.W.2d 191 (Iowa 1990)

Wolfe v. Graether, 389 N.W.2d 643 (Iowa 1986)

[]{#a12002 .anchor}1200.2 Intentional Interference With Prospective
Business Advantage - Essentials For Recovery. Plaintiff must prove all
of the following propositions:

1\. The plaintiff has a prospective \[contractual relationship\]
\[business relationship\] with (name of third person).

2\. The defendant knew of the prospective relationship.

3\. The defendant intentionally and improperly interfered with the
relationship by (set forth the particulars supported by the evidence).

4\. a. The interference caused (name of third person) not \[to enter\]
\[to continue\] the relationship; or

b\. The interference prevented the plaintiff from \[entering\]
\[continuing\] the relationship.

5\. The nature and amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of \_\_\_\_\_\_\_\_ as
explained in Instruction No.\_\_\_\_\_.

Authority

Financial Marketing Services v. Hawkeye Bank, 588 N.W.2d 450 (Iowa
1999).

Preferred Marketing Associates Co. v. Hawkeye National Life Insurance
Co., 452 N.W.2d 389 (Iowa 1990)

Nesler v. Fisher and Company, Inc., 452 N.W.2d 191 (Iowa 1990)

[]{#a12003 .anchor}1200.3 Interference With Contract - Definition Of
Contract. A contract is an agreement between two or more persons to do
or not to do something.

Authority

Compiano v. Kuntz, 226 N.W.2d 245 (Iowa 1975)

Restatement (Second) of Torts, Section 766, comment f

Comment

Caveat: If the existence of a contract is an issue, this definition
should be tailored to the facts of the case.

[]{#a12004 .anchor}1200.4 Interference With Contract - Knowledge. The
defendant "knew" of the contract if the defendant either had actual
knowledge of the contract or else had knowledge of facts which, if
followed by reasonable inquiry, would have led to disclosure of the
contract between (names of parties).

Authority

Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 764 (Iowa 1999)

[]{#a12005 .anchor}1200.5 Interference With Contract - Improper. In
determining whether a defendant\'s conduct in intentionally interfering
with a contract is improper you should determine whether the conduct was
fair and reasonable under the circumstances. In determining whether the
conduct was improper you may consider:

1\. The nature of the conduct.

2\. The defendant\'s motive.

3\. The interests of the party with which the conduct interferes.

4\. The interest sought to be advanced by the defendant.

5\. The social interests in protecting the freedom of action of the
defendant and the contractual interests of the other party.

6\. The nearness or remoteness of the defendant\'s conduct to the
interference.

7\. The relations between the parties.

Authority

Toney v. Casey\'s General Stores, Inc., 460 N.W.2d 849 (Iowa 1990)

Nesler v. Fisher and Company, Inc., 452 N.W.2d 191 (Iowa 1990)

[]{#a12006 .anchor}1200.6 Intentional Interference. A defendant\'s
interference with a \[contract\] \[prospective contractual
relationship\] \[prospective business relationship\] is intentional if
the defendant either interferes with the \[contract\] \[prospective
contractual relationship\] \[prospective business relationship\] on
purpose or knows the conduct is substantially certain to interfere with
the \[contract\] \[prospective contractual relationship\] \[prospective
business relationship\].

Authority

Restatement (Second) of Torts, Section 766, comment j.

[]{#a12007 .anchor}1200.7 Interference With Prospective Business
Advantage - Definitions. \[\"Prospective contractual relationship\"
means a reasonably likely contract of financial benefit to the
plaintiff.\] \[\"Prospective business relationship\" means a reasonably
likely business relationship of financial benefit to the plaintiff.\]

Authority

Restatement of Torts (Second), Section 766B, comment c

[]{#a12008 .anchor}1200.8 Interference with Prospective Business
Advantage - Improper Interference. A defendant\'s interference with a
\[prospective contractual relationship\] \[prospective business
relationship\] is improper if the defendant\'s interference is done with
\[the purpose\] \[the predominant purpose\] of financially harming or
destroying the plaintiff\'s business.

Authority

Preferred Marketing Associates Co. v. Hawkeye National Life Insurance
Co., 452 N.W.2d 389 (Iowa 1990)

Nesler v. Fisher and Company, Inc., 452 N.W.2d 191 (Iowa 1990)

Page County Appliance Center, Inc. v. Honeywell, Inc., 347 N.W.2d 171,
(Iowa 1984)

Comment

Note: The Iowa standard on this element is stricter than the Restatement
standard. Id. at 177. Moreover, when a defendant acts with two or more
purposes, the improper purpose must predominate in order to create
liability. Harsha v. State Savings Bank, 346 N.W.2d 791,799 (Iowa 1984)

[]{#CH1300 .anchor}**CHAPTER 1300**

# DRAM SHOP LIABILITY

[1300.1](#a13001) Essentials For Recovery

[1300.2](#a13002) Definition of Intoxication

[1300.3](#a13003) Proximate Cause

[1300.4](#a13004) Affirmative Defense - Lack of Contribution

[1300.5](#a13005) Affirmative Defense - Complicity

[1300.6](#a13006) Affirmative Defense - Assumption of Risk

[1300.7](#a13007) Definition of \"Knew Or Should Have Known\"

Comment

Note: All instructions apply to the Dram Shop Law as amended in 1986.
Attorneys and judges may want to keep the old instructions in their
binders to use in causes of action which accrued before the amendment\'s
effective date.

Authority

Thorp v. Casey\'s General Stores, Inc., 446 N.W.2d 457 (Iowa 1989)

[]{#a13001 .anchor}1300.1 Essentials Of Recovery. The plaintiff must
prove all of the following propositions:

1\. The defendant was licensed by the State of Iowa to sell beer, wine,
or liquor.

2\. a. The defendant \[or its employee\] sold and served
\_\_\_\_\_\_\_\_\_\_\_\_\_ \[beer\] \[wine\] \[liquor\] to a point where
(name of defendant or employee) knew or should have known
\_\_\_\_\_\_\_\_\_\_\_\_ would become intoxicated, and the \[beer\]
\[wine\] \[liquor\] sold and served to \_\_\_\_\_\_\_\_\_\_\_\_\_ was a
proximate cause of \[his\] \[her\] intoxication at the time of the
incident in which plaintiff was injured;\* and/or

b\. The defendant \[or its employee\] sold and served \[beer\] \[wine\]
\[liquor\] to \_\_\_\_\_\_\_\_\_\_\_\_ when (name defendant or employee)
knew or should have known \_\_\_\_\_\_\_\_\_\_\_\_ was intoxicated.

3\. The plaintiff was injured in \[person\] \[property\] \[means of
support\] \[by \_\_\_\_\_\_\_\_ while \_\_\_\_\_\_\_\_ was intoxicated
\[as a result of \_\_\_\_\_\_\_\_\_\_\_\'s intoxication\].\*\*

4\. The nature and extent of the damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
(If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_.)

Authority

Thorp v. Casey\'s General Stores, Inc., 446 N.W.2d 457 (Iowa 1989)

Walton v. Stokes, 270 N.W.2d 627 (Iowa 1978)

Pose v. Roosevelt Hotel Company, 208 N.W.2d 19 (Iowa 1973)

Iowa Code section 123.92

Comment

Note: Alternative 2a and/or 2b should only be submitted if supported by
the evidence.

\* Alternative 2a has a proximate cause requirement. Alternative 2b does
not have a proximate cause requirement because alternative 2b does not
require the plaintiff to prove the intoxicated person drank the
intoxicants or there was a proximate cause between the selling and
serving of intoxicants with the intoxication.

\*\* The last bracketed alternative is applicable only in a derivative
claim situation or when it is claimed the means of support of a spouse
or child is damaged as a result of the intoxication of the other spouse
and parent.

[]{#a13002 .anchor}1300.2 Definition Of Intoxication. A person is
\"intoxicated,\" if, by drinking beer, wine, or liquor, one or more of
the following is true:

1\. \[His\] \[Her\] reason or mental ability has been affected.

2\. \[His\] \[Her\] judgment is impaired.

3\. \[His\] \[Her\] emotions are visibly excited.

4\. \[He\] \[She\] has, to any extent, lost control of bodily actions.

Authority

Fournier v. Fraternal Order of Eagles, Waterloo Aeerie No. 764, 368
N.W.2d 849 (Iowa 1985)

State v. Stout, 247 Iowa 453, 457, 74 N.W.2d 208, 210 (1956)

[]{#a13003 .anchor}**1300.3 Proximate Cause.** The sale and service of
\[beer\] \[wine\] \[liquor\] is a proximate cause of intoxication when
it is a substantial factor in producing intoxication.

\"Substantial\" means the sale and service of \[beer\] \[wine\]
\[liquor\] had such an effect in producing intoxication as to lead a
reasonable person to regard it as a cause.

It need not be shown that the \[beer\] \[wine\] \[liquor\] was the sole
proximate cause of the intoxication. It is enough if it was a
contributing cause of the intoxication. If the \[beer\] \[wine\]
\[liquor\] combined with other \[beer\] \[wine\] \[liquor\] \[later\]
\[earlier\] drunk by (name) caused the continuance of an intoxicated
condition until the time of the incident, then the proximate cause has
not been proven.

However, if you find (name) was not intoxicated at the time of the
incident, or if you find the \[beer\] \[wine\] \[liquor\] sold and
served to \[him\] \[her\] by defendant was not a proximate cause of
\[his\] \[her\] intoxication at the time of the incident, then proximate
cause has been proven.

**Authority**

[Thorp v. Casey\'s General Stores, Inc]{.underline}., 446 N.W.2d 457
(Iowa 1989)

[Slager v. HWA Corporation,]{.underline} 435 N.W.2d 349 (Iowa 1989)

[Pose v. Roosevelt Hotel Company,]{.underline} 208 N.W.2d 19 (Iowa 1973)

Comment

Note: This instruction only applies to alternative 2a of Instruction
1300.1. If alternative 2a is not relied upon by the plaintiff, this
instruction should not be given.

10/04

[]{#a13004 .anchor}1300.4 Affirmative Defense - Lack Of Contribution.
The defendant claims (name)\'s intoxication did not contribute to
\[his\] \[her\] injurious actions. If the defendant has proved (name)\'s
intoxication did not contribute to \[his\] \[her\] injurious actions,
your verdict will be for the defendant. However, if the defendant has
not proved this defense, then you will consider whether the plaintiff is
entitled to damages under other instructions.

Authority

Iowa Code section 123.92

[]{#a13005 .anchor}1300.5 Affirmative Defense - Complicity. The
defendant asserts a defense of complicity.

To prove the defense of complicity, the defendant must prove both of the
following propositions:

1\. The plaintiff voluntarily and knowingly encouraged or participated
to a substantial and material extent in the defendant\'s becoming
intoxicated.

2\. As a result, the defendant became intoxicated and caused the
plaintiff\'s damage.

If the defendant has proved both of these propositions, then the
plaintiff cannot recover damages. If the defendant has failed to prove
one or both of these propositions, then consider whether the plaintiff
is entitled to damages under the other instructions.

Authority

Cox v. Rolling Acres Golf Course Corp. 532 N.W.2d 761 (Iowa 1995)

Martin v. Heddinger, 373 N.W. 2d 486 (Iowa 1985)

[]{#a13006 .anchor}1300.6 Affirmative Defense - Assumption Of Risk. The
defendant, (name), claims the plaintiff \"assumed the risk\" when \[he\]
\[she\] got in (name)\'s vehicle.

If the defendant has proved the plaintiff (1) knew a risk was present;
(2) understood its seriousness; and (3) freely chose to incur it, the
plaintiff \"assumed the risk\" \[he\] \[she\] was taking, and cannot
recover as a result of taking the risk.

If the defendant has not proved the defense of \"assumption of risk,\"
then you will consider whether the plaintiff is entitled to damages
under the other instructions.

Authority

Slager v. HWA Corporation, 435 N.W.2d 349 (Iowa 1989)

Martin v. Heddinger, 373 N.W.2d 486 (Iowa 1985)

[]{#a13007 .anchor}1300.7 Definition of \"Knew Or Should Have Known.\"
The phrase \"knew or should have known\" means that the person had
actual knowledge or that a reasonably observant person under the same or
similar circumstances would have had knowledge.

Authority

Habbiebrunken v. G & S Enterprises, Inc., 470 N.W.2d 19 (Iowa 1991)
(approving definition in dram shop context)

[]{#CH1400 .anchor}**CHAPTER 1400**

INSURANCE COMPANY LIABILITY

# Excess Liability

[1400.1](#a14001) Third-Party Bad Faith - Essentials For Recovery

[1400.2](#a14002) Definition of Bad Faith

# Insurer Liability

[1410.1](#a14101) First-Party Bad Faith - Essentials For Recovery

# Insurer Contract Liability

[1420.1](#a14201) Insurance Contract - Essentials For Recovery

[1430.1](#a14301) Uninsured Motorist Coverage - Essentials For Recovery

[1440.1](#a14401) Underinsured Motorist Coverage - Essentials For
Recovery

[]{#a14001 .anchor}1400.1 Third-Party Bad Faith - Essentials For
Recovery. The plaintiff must prove all of the following propositions:

1\. A specific demand for settlement was made by (name of claimant).

2\. The defendant rejected the proposed settlement in bad faith.

3\. The bad faith was a proximate cause of plaintiff\'s damages.

4\. The nature and extent of the damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Authority

Wierck v. Grinnell Mut. Reins. Co., 456 N.W.2d 191 (Iowa 1990)

Comment

Note: If the insurer\'s bad faith is based on conduct other than a
failure to settle, omit the first two elements and replace with the
following:

1\. The defendant acted in bad faith in one or more of the following
ways:

a\.

b\.

[]{#a14002 .anchor}1400.2 Definition Of Third Party Bad Faith. An
insurance company must act in good faith in making decisions about
claims made against its insured. The company must give equal
consideration to its own interests and to the interests of the insured.

The insurance company must view the situation as if there were no policy
limits applicable to the claim. Bad faith arises when the insurance
company, by its misconduct, serves its own interest and irresponsibly
exposes the insured to an unreasonable risk of liability.

Authority

Wierck v. Grinnell Mut. Reins. Co., 456 N.W.2d 191 (Iowa 1990)

Comment

Note: If the bad faith alleged is other than a failure to settle, omit
the second paragraph or modify it to fit the circumstances.

[]{#a14101 .anchor}1410.1 First-Party Bad Faith - Essentials For
Recovery. The plaintiff must prove all of the following propositions:

1\. The defendant \[denied plaintiff\'s claim\] \[refused to defend the
plaintiff\].

2\. There was no reasonable basis for \[denying the claim\] \[refusing
to defend\].

3\. The defendant knew or had reason to know that there was no
reasonable basis for \[denying the claim\] \[refusing to defend\].

4\. The \[denial\] \[refusal to defend\] was a proximate cause of damage
to the plaintiff.

5\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_\_\_\_\_.\]

Authority

Seastrom v. Farm Bureau Life Ins., 601 N.W.2d 339 (Iowa 1999)

Boylan v. American Motors, Inc., 489 N.W.2d 742 (Iowa 1992)

North Iowa State Bank v. Allied Mut. Ins. Co., 471 N.W.2d 824, 829 (Iowa
1991)

Kiner v. Reliance Ins. Co., 463 N.W.2d 9 (Iowa 1990)

Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988)

Comment

Note: Element 2, the lack of a reasonable basis for denying the claim,
is an objective element. This element will usually be determined by the
court as a matter of law. Reuter v. State Farm Mut. Auto. Ins. Co., 469
N.W.2d 250, 255 (Iowa 1991).

[]{#a14201 .anchor}1420.1 Insurance Contract - Essentials For Recovery.
The plaintiff must prove all of the following propositions:

1\. The plaintiff was insured for loss due to \[theft, fire, storm,
liability, etc.\] by the defendant on the date of loss.

2\. The plaintiff had paid the premiums which were due.

3\. The plaintiff had a loss by \[theft, fire, storm, liability, etc.\]
which was covered by the insurance policy with the defendant.

4\. \[The plaintiff gave the defendant timely proof of loss.\]

\[The plaintiff\'s failure to give timely proof of loss was \[excused\]
\[waived\] \[not prejudicial to the defendant\].\]

5\. The defendant did not pay the plaintiff\'s claim.

6\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of the
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No. \_\_\_\_\_\_\_\_ .\]

Authority

Watson v. National Sur. Corp., 468 N.W.2d 448, 451 (Iowa 1991)

American Guar. & Liability Ins. Co. v. Chandler Mfg. Co., 467 N.W.2d 226
(Iowa 1991)

Comment

Note: Where the policy condition at issue is other than the requirement
of timely proof of loss, modify paragraph 4 accordingly.

Note: For measure of recovery of total property loss, see McIntosh v.
Home Mut. Ins. Ass\'n of Iowa, 198 Iowa 1038, 1039, 200 N.W. 694 (1924).
To determine actual cash value by using market value and/or replacement
cost, see Britven v. Occidental Ins. Co., 234 Iowa 682, 685-87, 13
N.W.2d 791, 793-94 (1944); Stortenbecker v. Iowa Power & Light Co., 250
Iowa 1073, 1080, 96 N.W.2d 468, 472 (1959).

Note: See: Henschel v. Hawkeye-Security Ins. Co., 178 N.W.2d 409, 415-17
(Iowa 1970) concerning legal excuse for not giving notice of loss. See
Pirkl v. Northwestern Mut. Ins. Ass\'n, 348 N.W.2d 633, 637 (Iowa 1984)
concerning legal excuse or no prejudice for not giving notice of loss
within a specific time period. See Basta v. Farm Property Mut. Ins.
Ass\'n, 217 Iowa 240, 249, 252 N.W. 125 (1933) on the issue of the
insurance company\'s waiver of a proof of loss statement. See American
Guar. & Liab. Ins. Co. v Chandler Mfg. Co., 467 N.W.2d 226 (Iowa 1991)
concerning breach of the cooperation clause.

Note: See Instruction 2400.11 for definition of waiver of performance.

[]{#a14301 .anchor}1430.1 Uninsured Motorist Coverage - Essentials For
Recovery. Plaintiff must prove all of the following propositions:

1\. At the time of the accident, plaintiff was insured by the defendant
for bodily injuries caused by the fault of an owner or operator of an
uninsured motor vehicle.

2\. (Name of uninsured motorist) was the owner or operator of an
uninsured motor vehicle.

3\. (Name of uninsured motorist) is legally liable for the plaintiff\'s
bodily injuries as determined in accordance with instructions
\_\_\_\_\_\_\_\_\_\_ though \_\_\_\_\_\_\_\_\_\_\_.

4\. The nature and extent of plaintiff\'s damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to recover the amount of
plaintiff\'s damages, subject to the limits of the defendant\'s policy.

Authority

Iowa Code section 516A.1 (1991)

Hinners v. Pekin Ins. Co., 431 N.W.2d 345 (Iowa 1988)

Lemrich v. Grinnell Mut. Reins. Co., 263 N.W.2d 714 (Iowa 1978)

Comment

Note: If there is a dispute with respect to whether the premiums were
paid, add the following additional element:

2\. The premiums on the policy were paid when due.

Note: If there is no factual dispute with respect the existence of every
element of the plaintiff\'s case except element no. 3, the uninsured
motorist\'s legal liability, then it may not be necessary to use this
instruction. The parties and court may prefer to simply use the
appropriate fault instructions.

[]{#a14401 .anchor}1440.1 Underinsured Motorist Coverage - Essentials
For Recovery. Plaintiff must prove all of the following propositions:

1\. At the time of the accident, the plaintiff was insured by the
defendant for bodily injuries caused by the fault of an owner or
operator of an underinsured motor vehicle.

2\. (Name of underinsured motorist) was the owner or operator of an
underinsured motor vehicle.

3\. (Name of underinsured motorist) is legally liable for the
plaintiff\'s bodily injuries as determined in accordance with
instructions through .

4\. The nature and extent of the plaintiff\'s damage.

5\. The plaintiff\'s damages exceeded the policy limits of (name of
underinsured motorist) bodily injury liability policy.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to recover the amount by
which the plaintiff\'s damages exceed the policy limits of (name of
underinsured motorist) bodily injury liability policy, subject to the
limits of the defendant\'s policy.

Authority

Iowa Code section 516A.1 (1991)

Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 461 N.W.2d 291 (Iowa 1990)

American States Ins. Co. v. Estate of Tollari, 362 N.W.2d 519 (Iowa
1985)

Comment

Note: If there is a dispute with respect to whether the premiums were
paid, add the following additional element:

2\. The premiums on the policy were paid when due.

Note: If the plaintiff has recovered less than the full limits of the
underinsured motorist\'s liability policy due to settlements made by the
underinsured motorist with other injured parties, then element no. 5
should state:

5\. Plaintiff\'s damages exceeded the amount of plaintiff\'s recovery
from (name of underinsured motorist).

Compare American States Ins. Co. v. Estate of Tollari, 362 N.W.2d 519,
522 (Iowa 1985) with Rucker v. National Gen. Ins. Co., 442 N.W.2d 113,
117 (Iowa 1989).

Note: If there is no factual dispute with respect to the existence of
every element of the plaintiff\'s case except element no. 3, the
underinsured motorist\'s legal liability, then it may not be necessary
to use this instruction. The parties and court may prefer to simply use
the appropriate fault instructions.

# CHAPTER 1500

## MALPRACTICE - LEGAL

[1500.1](#a15001) Essentials For Recovery

[1500.2](#a15002) Attorney-Client Relationship Defined

[1500.3](#a15003) Negligence Defined

[1500.4](#a15004) Damages - Error In Prosecuting The Earlier Case

[1500.5](#a15005) Damages - Error In Defending The Earlier Case

[]{#a15001 .anchor}1500.1 Essentials For Recovery. The plaintiff must
prove all of the following propositions:

1\. An attorney-client relationship existed between the parties for the
disputed matter.

2\. The defendant was negligent in one or more of the following ways:

a\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

b\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

c\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

3\. The negligence was a proximate cause of the plaintiff\'s damage.

4\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Whiteaker v. State, 382 N.W.2d 112, 115 (Iowa 1986)

Devine v. Wilson, 373 N.W.2d 155, 157 (Iowa App. 1985)

Comment

Caveat: On occasion Proposition No. 1 must be modified to reflect an
attorney-client relationship between a third party and the defendant
whose negligence is alleged to have been the proximate cause of damage
to the plaintiff. See: Millwright v. Romer, 322 N.W.2d 30 (Iowa 1982);
Johnston, Legal Malpractice in Estate Planning - Perilous Times Ahead
For The Practitioner, 67 Iowa Law Review 629, 645 (1918-1982).

[]{#a15002 .anchor}1500.2 Attorney Client Relationship Defined. An
attorney-client relationship is created when:

1\. A person seeks advice or assistance from an attorney.

2\. The advice or assistance sought pertains to matters within the
attorney\'s legal competence.

3\. The attorney expressly or impliedly agrees to give or gives the
requested advice or assistance.

Authority

Kurtenback v. Tekippe, 269 N.W.2d 53, 56 (Iowa 1977)

Comment

Note: With respect to No. 3, the following may be added where
appropriate: \'This may be established by proof of detrimental reliance.
Detrimental reliance occurs when a person seeking advice or assistance
reasonably relies on the attorney to provide such legal services and the
attorney, being aware of such reliance, does nothing to negate it.\'

[]{#a15003 .anchor}1500.3 Negligence Defined. An attorney must use the
degree of skill, care and learning ordinarily possessed and exercised by
other attorneys in similar circumstances.

A violation of this duty is negligence.

Authority

Devine v. Wilson, 373 N.W.2d 155, 157 (Iowa App. 1985)

Martinson Manufacturing Co. v. Seery, 351 N.W.2d 772, 775 (Iowa 1984)

[]{#a15004 .anchor}1500.4 Damages - Errors In Prosecuting The Earlier
Case. The plaintiff must also prove that \[the earlier case would have
been won\] \[the result would have been different\] if the defendant had
not been negligent.

\*Concerning damages, plaintiff may recover the amount the plaintiff
would have been able to collect in the earlier case.

Authority

Whiteacre v. State, 383 N.W.2d 112, 115 (Iowa 1986)

Pickens, Barnes & Abernathy v. Heasley, 328 N.W.2d 524 (Iowa 1983)

Baker v. Beal, 225 N.W.2d 106 (Iowa 1975)

\*Note: The court must also instruct the jury on the legal issues
involved in the prior action.

[]{#a15005 .anchor}1500.5 Damages - Error In Defending The Earlier Case.
The plaintiff must also prove that \[the earlier case would have been
won\] \[the result would have been different\] if the defendant had not
been negligent. \*Concerning damages, plaintiff may recover the amount
of the judgment, including court costs awarded in the earlier case and
any other losses sustained.

Authority

Pickens, Barnes & Abernathy v. Heasley, 328 N.W.2d 524 (Iowa 1983)

\*Note: The court must also instruct the jury on the legal issues
involved in the prior action

[]{#CH1600 .anchor}**CHAPTER 1600**

# MALPRACTICE - MEDICAL

[1600.1](#a16001) Negligence - Essentials For Recovery

[1600.2](#a16002) Negligence - Duty Of Physician

[1600.3](#a16003) Negligence - Duty Of Specialist

[1600.4](#a16004) Negligence - Duty Of Hospital - Professional Service

[1600.5](#a16005) Negligence - Duty Of Hospital - Nonmedical
Administrative, Ministerial Or Routine Care

[1600.6](#a16006) Negligence Of Chiropractors As To Acts Done Within
Scope Of License Not Defined As \"Additional Procedures and Practices\"
Authorized By Senate File 474, 1983 Regular Session

[1600.7](#a16007) Negligence - Duty Of Chiropractor As To Acts Done
Within Scope Of License Subsequent To July 1, 1983 Defined as
\"Additional Procedures and Practices\" Authorized By Senate File 474,
1983 Regular Session

[1600.8](#a16008) Chiropractor Or Health Care Practitioner Undertaking
To Treat A Patient In A Manner Not Permitted By License

[1600.9](#a16009) Duty Of Physician, Chiropractor Or Health Care
Practitioner - Res Ipsa Loquitur

[1600.10](#a16010) Informed Consent - Essentials For Recovery

[1600.11](#a16011) Informed Consent - Reserved

[1600.12](#a16012) Duty Of Physician As To Informed Consent

[1600.13](#a16013) Express Warranty - Duty Of Physician Including
Specialist

[1600.14](#a16014) Medical Battery - Essentials For Recovery

[1600.15](#a16015) Medical Battery -- Defined

[1600.16](#ch160016) Lost Chance of Survival - Essentials for Recovery
-- Death.

[1600.17](#ch160017) Lost Chance of Survival -- Causation -- Death.

[1600.18](#ch1600181) Lost Chance of Survival -- Damages -- Death.

[1600.19](#ch160019) Special Interrogatories - Lost Chance of Survival
-- Death.

[1600.20](#ch160020) Reduction for Reimbursement of Economic Losses.

[1600.21](#ch160021) Verdict Question -- Reimbursement of Economic
Losses.

[]{#a16001 .anchor}1600.1 Negligence - Essentials For Recovery. See
Instruction No. 700.1

Comment

Caveat: Although informed consent is a negligence theory, use
Instruction 1600.10 as the essentials for recovery instruction for
informed consent.

[]{#a16002 .anchor}1600.2 Negligence - Duty Of Physician. A physician
must use the degree of skill, care and learning ordinarily possessed and
exercised by other physicians in similar circumstances.

A violation of this duty is negligence.

Authority

Speed v. State, 240 N.W.2d 901 (Iowa 1976)

Perin v. Hayne, 210 N.W.2d 609 (Iowa 1973)

[]{#a16003 .anchor}1600.3 Negligence - Duty Of Specialist. Physicians
who hold themselves out as specialists must use the degree of skill,
care and learning ordinarily possessed and exercised by specialists in
similar circumstances, not merely the average skill and care of a
general practitioner.

A violation of this duty is negligence.

Authority

McGulpin v. Bessmer, 241 Iowa 1119, 1132, 43 N.W.2d 121, 128 (1950)

[]{#a16004 .anchor}1600.4 Negligence - Duty Of Hospital - Professional
Service. A hospital must use the degree of skill, care and learning
ordinarily possessed and exercised by other hospitals in similar
circumstances.

A violation of this duty is negligence.

Authority

Kastler v. Iowa Methodist Hospital, 193 N.W.2d 98 (Iowa 1971)

Dickinson v. Mailliard, 175 N.W.2d 588 (Iowa 1970)

Clites v. State, 322 N.W.2d 917 (Iowa App. 1982)

Comment

Caveat: The court should examine the Kastler decision to decide if the
service rendered was a professional service or a nonprofessional
service. (See Instruction 1600.5 if a nonprofessional service was
rendered.)

[]{#a16005 .anchor}1600.5 Negligence - Duty Of Hospital - Nonmedical,
Administrative, Ministerial Or Routine Care. A hospital must use the
degree of ordinary care and attention that the known mental and physical
condition of a patient requires.

A violation of this duty is negligence.

Authority

Kastler v. Iowa Methodist Hospital, 193 N.W.2d 98 (Iowa 1971)

Comment

Caveat: The court should examine the Kastler decision to decide if the
service rendered was a professional service or a nonprofessional
service. (See Instruction 1600.4 if a nonprofessional service was
rendered.)

[]{#a16006 .anchor}1600.6 Negligence Of Chiropractors As To Acts Done
Within Scope Of License Not Defined As \"Additional Procedures And
Practices\" Authorized By Senate File 474, 1983 Regular Session. A
chiropractor must use the degree of skill, care and learning ordinarily
possessed and exercised by chiropractors in similar circumstances.

A violation of this duty is negligence.

Authority

Correll v. Goodfellow, 255 Iowa 1237, 125 N.W.2d 745 (1964)

Iowa Code section 151.8

Acts 1983 Regular Session, 70 G.A. Chapter 83 (1983)

[]{#a16007 .anchor}1600.7 Negligence - Duty Of Chiropractor As To Acts
Done Within Scope Of License Subsequent To July 1, 1983 Defined As
\"Additional Procedures And Practices\" Authorized By Senate File 474,
1983 Regular Session. A chiropractor must use the degree of skill, care
and learning ordinarily possessed and exercised by health care
practitioners permitted by law to perform the \[treatment\]
\[procedure\] \[services\] in similar circumstances.

A violation of this duty is negligence.

Authority

Iowa Code section 151.1

Iowa Code section 151.8

Acts 1983 Regular Session, 70 G.A. Chapter 83 (1983)

[]{#a16008 .anchor}1600.8 Chiropractor Or Health Care Practitioner
Undertaking To Treat A Patient In A Manner Not Permitted By License.
Plaintiff claims the defendant negligently used \[equipment\] \[a
procedure\] in treating the plaintiff and failed to use the degree of
skill, care and learning ordinarily possessed by \[physicians\] \[health
care practitioners permitted by law to perform said procedures\].

A violation by the defendant of those provisions of the statutes which
define and limit treatments which may be administered by a licensed
\[chiropractor\]\[health care practitioner\] is not in itself
negligence.

In treating the plaintiff by use of \[equipment\] \[a procedure\],
defendant exceeded the scope of authority which defendant had to
practice under defendant\'s license and entered the field of practice of
\[medicine\] \[other health care field\]. In using the \[equipment\]
\[procedure\] defendant must use the degree of skill, care and learning
ordinarily possessed and exercised by \[physicians\] \[other health care
practitioners permitted by law to perform said procedure\] in similar
circumstances.

A violation of this duty is negligence.

Authority

Correll v. Goodfellow, 255 Iowa 1237, 125 N.W.2d 745 (1964)

[]{#a16009 .anchor}1600.9 Duty Of Physician, Chiropractor Or Health Care
Practitioner - Res Ipsa Loquitur. See Instruction 700.5. This
instruction can be easily adapted for medical malpractice cases. See
Sammons v. Smith, 353 N.W.2d 380 (Iowa 1984); Reilly v. Straub, 282
N.W.2d 688 (Iowa 1979); Perin v. Hayne, 210 N.W.2d 609 (Iowa 1973);
Wiles v. Myerly, 210 N.W.2d 619 (Iowa 1973); and Mogensen v. Hicks, 253
Iowa 139, 110 N.W.2d 563 (1961) for a discussion on the theory\'s
applicability.

[]{#a16010 .anchor}1600.10 Informed consent - Essentials For Recovery.
The plaintiff claims the defendant failed to obtain an informed consent
from the plaintiff before performing (name of procedure or treatment).

The plaintiff must prove all of the following propositions:

1\. The existence of material information concerning the (name of
procedure or treatment).

2\. Material information concerning the (name of procedure or treatment)
was unknown to the plaintiff.

3\. The defendant failed to disclose material information concerning the
(name of procedure or treatment) to the plaintiff.

4\. Disclosure of material information concerning the (name of procedure
or treatment) would have led a reasonable patient in plaintiff\'s
position to \[reject the (treatment)\] \[choose a different course of
treatment\].

5\. The failure to obtain an informed consent was a proximate cause of
plaintiff\'s damage.

6\. The nature and amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_.\]

Authority

Pauscher v. Iowa Methodist Medical Center, 408 N.W.2d 355 (Iowa 1987)

[]{#a16011 .anchor}1600.11 Informed Consent - Reserved.

Comment

Note: The court in Pauscher v. Iowa Methodist Medical Center, 408 N.W.2d
355 (Iowa 1987), stated situations may exist which relieve the defendant
of the duty to disclose a material risk. These include:

1\. Situations in which complete and candid disclosure might have a
detrimental effect on the physical or psychological well-being of the
patient.

2\. Situations in which a patient is incapable of giving consent by
reason of mental disability or infancy.

3\. Situations in which an emergency make it impractical to obtain
consent.

4\. Situations in which the risk is either known to the patient or is so
obvious as to justify a presumption on the part of the physician that
the patient has knowledge of the risk.

5\. Situations in which the procedure itself is simple and the danger
remote and commonly appreciated to be remote.

6\. Situations in which the physician does not know of an otherwise
material risk and should not have been aware of it in the exercise of
ordinary care.

Note: The committee does not express any opinion as to how to instruct
in these situations. The reasons are as follows:

1\. Can these defenses be raised in a purely elective procedure?

2\. Who has the burden of pleading and proof on these issues?

[]{#a16012 .anchor}1600.12 Duty Of Physician As To Informed Consent. A
physician is required to obtain an informed consent from a patient prior
to performing any procedure upon the patient. To obtain an informed
consent, a physician must disclose to the patient all known material
information concerning the (name of procedure or treatment) that would
be significant to a reasonable patient\'s decision to consent to the
procedure. Material information includes the \[risks of\] \[alternatives
to\] \[consequences of failing to have\] the procedure or treatment.

Authority

Pauscher v. Iowa Methodist Medical Center, 408 N.W.2d 355 (Iowa 1987)

Comment

Note: If patient is a minor or incapacitated, tailor the instruction
accordingly.

Note: This instruction is not for a medical battery. See, Perin v.
Hayne, 210 N.W.2d 609, 618 (Iowa 1973) and Instructions 1600.14 and
1600.15.

[]{#a16013 .anchor}1600.13 Express Warranty - Duty Of Physician
Including Specialist. Ordinarily a physician does not guarantee the
success of any \[treatment\] \[course of treatment\] \[operation\].
However, a physician and a patient may enter into a contract in which
the physician expressly warrants that the patient will be \[cured of the
disease\] \[improved in \[his\] \[her\] condition\] \[left without
scars\] \[rendered sterile\] \[other condition\].

Authority

Perin v. Hayne, 210 N.W.2d 609 (Iowa 1973)

Comment

Note: Relevant contract instructions in Chapter 2400 may be appropriate
to this theory of recovery.

Note: If the patient is a minor or incapacitated, the contract may be
made by an authorized person on the patient\'s behalf.

[]{#a16014 .anchor}1600.14 Medical Battery - Essentials For Recovery.
The plaintiff claims that the defendant committed a medical battery in
the following particulars:

1\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

2\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

The plaintiff must prove all of the following propositions:

1\. Defendant committed a medical battery as explained in Instruction
No.\_\_\_\_\_\_\_.

2\. The medical battery was a proximate cause of plaintiff\'s damage.

3\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Authority

Perin v. Hayne, 210 N.W.2d 609 (Iowa 1973)

[]{#a16015 .anchor}1600.15 Medical Battery - Defined. A physician may
\[treat\] \[operate on\] a patient only with the patient\'s consent. A
physician commits a Medical Battery if the physician performs \[a
treatment\] \[an operation\] other than the type of \[treatment\]
\[operation\] for which the patient has given consent.

Authority

Perin v. Hayne, 210 N.W.2d 609 (Iowa 1973)

Comment

Caveat: See, Annot., 56 A.L.R.2d 695 (1957) and its supplement for
situations where consent not required such as emergencies. See,
Jackovach v. Yocum, 212 Iowa 914, 237 N.W. 444 (1931).

[]{#ch160016 .anchor}**1600.16 - Lost Chance of Survival - Essentials
for Recovery -- Death.** \[If you find that plaintiff has failed to
prove the second proposition of \[his\] \[her\] claim for negligence as
set forth in Instruction No. \_\_\_\_\_, you must then consider
plaintiff's alternative claim for lost chance of survival. If you find
that plaintiff has proven \[his\] \[her\] claim of negligence as set
forth in Instruction No. \_\_\_\_\_, you should not consider plaintiff's
alternative claim for lost chance of survival.\]

The plaintiff claims that the defendant caused \[decedent\] to lose a
chance of survival. The plaintiff must prove all of the following
propositions:

1\. The defendant was negligent in one or more of the following ways:

a\.

b\.

c\.

> 2\. The negligence proximately caused a loss of a chance of survival.

3\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of \_\_\_\_\_\_\_\_\_\_ as
explained in Instruction No.\_\_\_\_\_.\]

**Authority**

*[Mead v. Adrian]{.underline}, \_\_\_\_\_ N.W.2d \_\_\_\_\_ (Iowa 2003)*

*[Wendland v Sparks]{.underline}, 574 N.W.2d 327 (Iowa 1998)*

*[Sanders v Ghrist]{.underline}, 421 N.W.2d 520 (Iowa 1988)*

*[DeBurkarte v Louvar,]{.underline} 393 N.W.2d 131 (Iowa 1986)*

# Comment

Note: The first paragraph should be used only if the case is submitted
to the jury on a claim for traditional negligence and an alternative
claim for lost chance of survival. The first paragraph should be omitted
if the case is submitted solely as a claim for lost chance of survival.

Note: If both a claim for traditional negligence and an alternative
claim for lost chance of survival are submitted to the jury, the first
sentence of the concluding paragraph of the marshaling instruction for
the traditional negligence claim should be replaced with "If the
plaintiff has failed to prove the first proposition above regarding
negligence, the plaintiff is not entitled to damages. If the plaintiff
has failed to prove the second proposition above regarding causation,
you will consider plaintiff's alternative claim for lost chance of
survival."

Note: These instructions are applicable only in a wrongful death case.
However, a lost chance of survival claim can exist in a non-death case.
[See]{.underline}, [e.g.]{.underline}, [DeBurkarte v
Louvar,]{.underline} 393 N.W.2d 131 (Iowa 1986).

[]{#ch160017 .anchor}**1600.17 - Lost Chance of Survival -- Causation --
Death.** Lost chance of survival means a reduction in the chance to
survive the underlying \[injury\] \[condition\] \[disease\] because
\[decedent\] failed to receive earlier diagnosis or treatment.

With regard to the second proposition of Instruction No. \_\_\_\_,
plaintiff must prove that defendant's negligence, if any, proximately
caused a loss of a chance of survival. To prove a loss of a chance of
survival, the plaintiff must show, by a preponderance of the evidence,
that there is a causal connection between the defendant's negligence, if
any, and the loss of a chance to survive the harm.

**Authority**

*[Mead v. Adrian]{.underline}, \_\_\_\_\_ N.W.2d \_\_\_\_\_ (Iowa 2003)*

*[Wendland v Sparks]{.underline}, 574 N.W.2d 327 (Iowa 1998)*

*[Sanders v Ghrist]{.underline}, 421 N.W.2d 520 (Iowa 1988)*

*[DeBurkarte v Louvar,]{.underline} 393 N.W.2d 131 (Iowa 1986)*

[]{#ch1600181 .anchor}**1600.18 Lost Chance of Survival -- Damages --
Death.** You must determine the value of the harm suffered by plaintiff
and determine the percentage of lost chance to avoid that harm which
defendant caused. I will use your answers to the special interrogatories
in the verdict form to calculate the appropriate amount of damages
recoverable by plaintiff.

You should determine the value of the harm suffered by plaintiff in
accordance with Instructions No. \_\_\_\_ through \_\_\_\_ (traditional
damages instructions).

To determine the percentage of lost chance to avoid the harm, caused by
the defendant, you must determine the difference between
([decedent]{.underline})'s chance of avoiding the harm in the absence of
any negligence on the part of the defendant and
([decedent]{.underline})'s chance of avoiding the harm following any
negligence on the part of the defendant which you have found.

**Authority**

*[Mead v. Adrian]{.underline}, \_\_\_\_\_ N.W.2d \_\_\_\_\_ (Iowa 2003)*

*[Wendland v Sparks]{.underline}, 574 N.W.2d 327 (Iowa 1998)*

*[Sanders v Ghrist]{.underline}, 421 N.W.2d 520 (Iowa 1988)*

*[DeBurkarte v Louvar,]{.underline} 393 N.W.2d 131 (Iowa 1986)*

[]{#ch160019 .anchor}**1600.19 - Special Interrogatories - Lost Chance
of Survival -- Death.**

\[To be answered only if you have considered plaintiff's alternative
claim for lost chance of survival as set forth in Instructions No.
\_\_\_\_ through \_\_\_\_\].

Question No. \_\_\_. Was the negligence of defendant the proximate cause
of a loss of a chance of survival?

Answer Yes or No

ANSWER: \_\_\_\_\_\_\_\_\_\_\_

Question No. \_\_\_. What percentage of lost chance to avoid the harm,
caused by defendant, do you find?

ANSWER: \_\_\_\_\_\_\_\_\_\_\_

# Authority

[Mead v. Adrian]{.underline}, \_\_\_\_\_ N.W.2d \_\_\_\_\_ (Iowa 2003)

[Wendland v Sparks]{.underline}, 574 N.W.2d 327 (Iowa 1998)

[Sanders v Ghrist]{.underline}, 421 N.W.2d 520 (Iowa 1988)

[DeBurkarte v Louvar,]{.underline} 393 N.W.2d 131 (Iowa 1986)

# Comment

Note: These special interrogatories should be placed on the verdict form
following the interrogatories relating to the plaintiff's traditional
claim for negligence.

[]{#ch160020 .anchor}**1600.20 -- Reduction for Reimbursement of
Economic Losses.** Any damages which you award for \[medical care\]
\[rehabilitation services\] \[custodial care\] \[loss of services\]
\[loss of earned income\] incurred in the past or to be incurred in the
future will be reduced by the Court for any such losses which you find
have been or will be replaced or paid by insurance, or by governmental,
employment, or service benefit programs, or from any other source except
the assets of ([plaintiff]{.underline}) or of the members of
([plaintiff]{.underline})'s immediate family. ([Defendant]{.underline})
has the burden to prove these benefits have been paid or will be
available to ([plaintiff]{.underline}). You will set forth the amount of
any reduction of damages due to replacement or payment by insurance or
governmental, employment, or service benefit programs or other sources
only in answering Verdict Question No. [\_\_\_\_]{.underline} .

**Authority**

[Iowa Code]{.underline} section 147.136

[Peters v. Vander Kooi]{.underline}, 494 N.W.2d 708, 714 (Iowa 1993)

**Comment**

Note: If this Instruction is given, the general damages verdict question
should be modified to inform the jury that it should not consider any
reduction for payments by collateral sources in determining damages. For
example, if Iowa Civil Jury Instruction 300.4 is used, the second
sentence of Question No. 6 should be modified to state: "Do not take
into consideration any reduction of damages due to plaintiff's fault or
due to replacement or payment by insurance or governmental, employment,
or service benefit programs or other sources."

[]{#ch160021 .anchor}**1600.21 Verdict Question -- Reimbursement of
Economic Losses.**

For each of the following elements of damage, state the amount which you
find ([defendant]{.underline}) has proved has been or will be replaced
or paid by insurance, or by governmental, employment, or service benefit
programs, or from any other source except the assets of
([plaintiff]{.underline}) or of the members of
([plaintiff]{.underline})'s immediate family. If
([defendant]{.underline}) has failed to prove that any item of damage
will be replaced or paid by a source other than the assets of the
plaintiff or of the members of the plaintiff's immediate family, enter 0
for that item.

\*1. Past Medical Expenses \$\_\_\_\_\_\_\_\_\_\_\_\_\_

2\. Future Medical Expenses \$\_\_\_\_\_\_\_\_\_\_\_\_\_

3\. Loss of Time -- Earnings \$\_\_\_\_\_\_\_\_\_\_\_\_\_

4\. Loss of Future Earning Capacity \$\_\_\_\_\_\_\_\_\_\_\_\_\_

**Authority**

[Iowa Code]{.underline} section 147.136

[Peters v. Vander Kooi]{.underline}, 494 N.W.2d 708, 714 (Iowa 1993)

**Comment**

Note: \*The above list is merely an example of format. The list of items
should be consistent with the elements of actual economic losses
included in the damages marshaling instruction and the general damages
verdict question.

[]{#CH1700 .anchor}

# CHAPTER 1700

## RAILROAD CROSSINGS

[1700.1](#a17001) Railroad Crossings - Crossbuck Signs

[1700.2](#a17002) Railroad Crossings - Horn And Bell

[1700.3](#a17003) Railroad Crossings - Electronic Flashing Signals And
Flagman

[1700.4](#a17004) Railroad Crossings - Speed

[1700.5](#a17005) Railroad Crossings - Defective Crossing (Public
Highway)

[1700.6](#a17006) Railroad Crossings - Headlights (Deleted)

[1700.7](#a17007) Railroad Crossings - Plaintiff\'s Negligence - Look
And Listen

[]{#a17001 .anchor}1700.1 Railroad Crossings - Crossbuck Signs.
Railroads are required to put crossbuck signs at railroad crossings to
warn people to look out for trains. The signs must be white with the
words RAILROAD CROSSING in large and distinct black lettering.

A violation of this law is negligence.

Authority

Iowa Code sections 327G.2 and 307.26(5)(b) (1985)

820 Iowa Administrative Code, Section 2.1 (Manual on Uniform Traffic
Control Devices Section 8B-2)

Hitchcock v. Iowa Southern Utilities Co., 233 Iowa 301, 6 N.W.2d 29
(1942)

[]{#a17002 .anchor}1700.2 Railroad Crossings - Horn And Bell. Railroads
are required to sound the train\'s horn at least 1000 feet before the
train reaches a railroad crossing. After sounding the horn, the train
must ring the train bell until the train is past the crossing.

A violation of this law is negligence.

Authority

Iowa Code section 327G.13

Stewart v. Madison, 278 N.W.2d 284 (Iowa 1979)

Hawkins v. Interurban Ry. Co., 184 Iowa 232, 168 N.W.234 (1918)

Comment

Note: When the train is operating in a city or town the horn sounding
may be omitted unless required by the city ordinance or resolution but
no provision is made for omitting the bell. Sounding of the horn may
nevertheless be required under common law principles. Id.

Note: Signals may be required at private crossings when circumstances
require.

[]{#a17003 .anchor}1700.3 Railroad Crossings - Electronic Flashing
Signals And Flagman. Unless a railroad crossing is extra hazardous, all
that is required as a warning to travelers are signs and sounding the
train horn and bell. In deciding whether the crossing has been proved to
be extra hazardous, you may consider unusual conditions like heavy
traffic, anything that would interfere with visibility, and similar
circumstances. If a crossing is extra hazardous, and the railroad knows
or reasonably should know of the danger, the railroad must have either
electronic flashing signals or a flagman there to warn travelers.

A violation of this duty is negligence.

Authority

Kuper v. Chicago & North Western Transportation Co., 290 N.W.2d 903
(Iowa 1980)

[]{#a17004 .anchor}1700.4 Railroad Crossings - Speed. Railroads are
required to use ordinary care as to the speed of their trains at road
crossings.

A violation of this duty is negligence.

Authority

Daly v. Illinois Central Railroad Co., 250 Iowa 110, 93 N.W.2d 68 (1957)

Jensvold v. Chicago & Great Western Ry. Co., 236 Iowa 708, 18 N.W.2d 616
(1945)

Comment

Note: A violation of a duly executed city ordinance or regulation as to
speed is negligence per se.

Note: Federal law may have preempted state law and regulations governing
train speed. See CSX Transp., Inc. v. Easterwood, 113 S.Ct. 1732 (1993).

[]{#a17005 .anchor}1700.5 Railroad Crossings - Defective Crossings
(Public Highway). Railroads are required to keep railroad crossings in
good repair.

A violation of this duty is negligence.

Authority

Iowa Code section 327G.2

10/97

[]{#a17006 .anchor}1700.6 Railroad Crossings - Headlights. Instruction
deleted.

Comment

Note: Iowa law regulating headlights on locomotives has been preempted
by federal law. Brown v. Chicago R.I. & P.R. Co., 108 F. Supp. 164 (N.D.
Iowa 1952); Wiedenfeld v. Chicago N.W. Transp.Co., 252 N.W.2d 691 (Iowa
1977). If the locomotive is not engaged in interstate commerce see Iowa
Code section 327F.14 (1991).

[]{#a17007 .anchor}1700.7 Railroad Crossings - Plaintiff\'s Negligence -
Look And Listen. A driver of a motor vehicle is required to use ordinary
care in looking and listening for trains in driving toward a railroad
crossing. This must be done at a time and place when the vehicle can be
stopped if a train is seen or heard.

A violation of this duty is negligence.

Authority

Maier v. Illinois Central Railroad, 234 N.W.2d 388 (Iowa 1975)

[]{#CH1800 .anchor}**CHAPTER 1800**

# **ABUSE OF PROCESS**

[1800.1](#a18001) Abuse Of Process - Essentials For Recovery

[1800.2](#a18002) Abuse Of Process - Definition

[1800.3](#a18003) Abuse Of Process - Explanation Of The Misconduct

[1800.4](#a18004) Abuse Of Process - Intent

[1800.5](#a18005) Abuse Of Process - Primarily

[]{#a18001 .anchor}1800.1 Abuse Of Process - Essentials For Recovery.
The plaintiff must prove all of the following propositions:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_, 19\_\_\_\_,
the defendant intentionally used \[set forth legal process used.\]

2\. The defendant used the legal process primarily \[set out the
improper use\], and not for its intended use which is explained in
Instruction No. \_\_\_\_\_\_.

3\. The defendant\'s use of the legal process for the improper purpose
was a proximate cause of the plaintiff\'s damage.

4\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Authority

Grell v. Poulsen, 389 N.W.2d 661 (Iowa 1986)

Restatement of Torts (Second), Section 682

[]{#a18002 .anchor}1800.2 Abuse Of Process - Definition. Abuse of
process is the use of a \[criminal-civil\] legal process against another
primarily to accomplish a purpose for which it was not designed. A
person who abuses a legal process is responsible for damages suffered by
another as a result of the abuse.

[]{#a18003 .anchor}1800.3 Abuse Of Process - Explanation Of The
Misconduct. The wrong act involved in \"abuse of process\" is using the
process for a reason different from the purpose for which the process
was designed. For example, it could be using a legal process to force
another to take some action or not take some action unrelated to the
legal process. The result of the earlier legal proceeding does not
matter.

The purpose of \[name of process\] is to \[describe the purpose of the
process involved\].

[]{#a18004 .anchor}1800.4 Abuse Of Process - Intent. The word
\"intentionally\", as used in element number 1 of Instruction No.
\_\_\_\_\_\_\_, refers to the state of mind of the defendant and means
that a person acted voluntarily, not mistakenly, or through accident,
inadvertence, ignorance, or other innocent reason. Intent may be
determined by such reasonable conclusions and deductions as may be drawn
from the facts proved, in accordance with common experience and
observation.

In determining the intent of any person you may, but are not required
to, conclude that they intended the consequences of their acts.

[]{#a18005 .anchor}1800.5 Abuse Of Process - Primarily. The word
\"primarily\" as used in these instructions means that the wrongful
purpose must have been the main reason for using the process. If the
process is used for its intended purpose, it makes no difference if the
defendant dislikes the plaintiff or if the plaintiff\'s motives in using
the process were improper.

Authority

Grell v. Poulsen, 389 N.W.2d 661 (Iowa 1986)

Restatement of Torts (Second), Section 682, Comment (b)

[]{#CH1900 .anchor}**CHAPTER 1900**

# ASSAULT AND BATTERY

[1900.1](#a19001) Assault - Essentials For Recovery

[1900.2](#a19002) Assault - Defined

[1900.3](#a19003) Battery - Essentials For Recovery

[1900.4](#a19004) Battery - Defined

[1900.5](#a19005) Intent - Defined

[]{#a19001 .anchor}1900.1 Assault - Essentials For Recovery. In order to
prove the claim of assault, the plaintiff must prove all of the
following propositions:

1\. The defendant \[describe the act\].

2\. The act was done with the intent to put \[in fear of physical pain
or injury\] \[in fear of physical contact which would be insulting or
offensive\].

3\. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ reasonably believed that the act
would be carried out immediately.

4\. The defendant\'s act was a proximate cause of plaintiff\'s damage.

5\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

[]{#a19002 .anchor}1900.2 Assault - Defined. An assault is committed
when a person does: (1) an act intended to put another in fear of
physical pain or injury; (2) an act intended to put another in fear of
physical contact which a reasonable person would deem insulting or
offensive;\* and the victim reasonably believes that the act may be
carried out immediately.

Threatening words alone do not constitute an assault unless it appears
that the person has the ability to carry out the threat at the time the
words were spoken.

Authority

State v. Straub, 190 Iowa 800, 180 N.W. 869 (1921)

Restatement of Torts (Second), Sections 21, 31, and 32

Comment

\*Note: Select the appropriate phrase as shown by the evidence.

[]{#a19003 .anchor}1900.3 Battery - Essentials For Recovery. In order to
prove the claim of battery, the plaintiff must prove all of the
following propositions:

1\. The defendant \[describe the act\].

2\. The act was done with the intent to cause physical pain or injury\]
\[insulting or offensive bodily contact\].

3\. The defendant\'s act resulted in \[physical pain or injury\]
\[insulting or offensive bodily contact\].

4\. The defendant\'s act was a proximate cause of plaintiff\'s damage.

5\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_\_.

[]{#a19004 .anchor}1900.4 Battery - Defined. A battery is committed when
a person intentionally does:

1\. An act resulting in bodily contact causing physical pain or injury.

2\. An act results in bodily contact which a reasonable person would
deem insulting or offensive.

Authority

Restatement of Torts (Second), Sections 13 and 18

[]{#a19005 .anchor}1900.5 Intent - Defined. Intent means doing something
on purpose as opposed to accidentally. Because intent requires a finding
of what a person is thinking when doing an act, it is seldom capable of
being proven by direct evidence. You may use your common experience when
considering all of the facts surrounding the doing of an act to
determine what a person\'s intent was when committing the act. You may
find that if a person does an act on purpose, the person also intended
the natural results of the act.

Authority

Lutterman v. Romey, 143 Iowa 233, 121 N.W. 1040 (1909)

Restatement of Torts (Second), Sections 16, 20 and 32

# CHAPTER 2000

## EMOTIONAL DISTRESS - INTENTIONAL INFLICTION

[2000.1](#a20001) Emotional Distress - Intentional Infliction -
Essentials For Recovery

[2000.2](#a20002) Outrageous Conduct - Definition

[2000.3](#a20003) Intentional Or Reckless - Definition

[2000.4](#a20004) Severe Or Extreme Emotional Distress - Definition

[]{#a20001 .anchor}2000.1 Emotional Distress - Intentional Infliction -
Essentials For Recovery. \[To entitle the plaintiff to recover on the
claim for the tortious infliction of severe emotional distress\] the
plaintiff must prove all of the following propositions:

1\. Outrageous conduct by the defendant.

2\. The defendant intentionally caused emotional distress or acted with
reckless disregard of the probability of causing emotional distress.

3\. The plaintiff suffered severe or extreme emotional distress.

4\. The defendant\'s outrageous conduct was a proximate cause of the
emotional distress.

5\. The nature and extent of plaintiff\'s damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_.\]

Authority

Vaughn v. Ag Processing, Inc., 459 N.W.2d 627 (Iowa 1990) (en banc)

Tomash v. John Deere Indus. Equipment Co., 399 N.W.2d 387 (Iowa 1987)

Northrup v. Farmland Industries, Inc., 372 N.W.2d 193 (Iowa 1985)

[]{#a20002 .anchor}2000.2 Outrageous Conduct - Definition. The term
\"outrageous conduct\" means conduct so extreme as to go beyond all
possible bounds of decency and to be regarded as atrocious and utterly
intolerable in a civilized community.

Outrageous conduct does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, hurt feelings, bad manners or
other trivialities which a reasonable person could be expected to
endure. All persons must necessarily be expected and required to be
hardened to a certain amount of rough language and to occasional acts
that are inconsiderate and unkind.

Authority

Northrup v. Farmland Industries, Inc., 372 N.W.2d 193 (Iowa 1985)

Roalson v. Chaney, 334 N.W.2d 754 (Iowa 1983)

Restatement (Second) of Torts, Section 46, Comments d and h (1965)

[]{#a20003 .anchor}2000.3 Intentional Or Reckless - Definition. A person
intends to inflict emotional distress when they want to cause distress,
or know such distress is substantially certain to result from their
conduct.

A person\'s conduct is reckless if they know or have reason to know
their conduct creates a high degree of probability that emotional
distress will result and they act with deliberate disregard of that
probability.

Authority

M. H. By and Through Callahan v. State, 385 N.W.2d 533 (Iowa 1986)

Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976)

Restatement (Second) of Torts, Section 46, Comment i

[]{#a20004 .anchor}2000.4 Severe Or Extreme Emotional Distress -
Definition. The emotional distress must in fact exist, and it must be
severe or extreme, but it need not reveal itself physically.

The term \"severe or extreme\" means substantial or enduring as
distinguished from mild or brief.

The term \"emotional distress\" includes all highly unpleasant mental
reactions such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment and worry. It must be so
substantial or enduring that no reasonable person could be expected to
bear it.

Authority

Harsha v. State Savings Bank, 346 N.W.2d 791, (Iowa 1984)

Poulsen v. Russell, 300 N.W.2d 289 (Iowa 1981)

Restatement (Second) of Torts, Section 46, Comment j (1965)

# CHAPTER 2100

## LIBEL AND SLANDER

[2100.1](#a21001) Libel (Slander) Per Se - Essentials For Recovery

[2100.2](#a21002) Libel (Slander) Per Se - Essentials For Recovery

[2100.3](#a21003) Libel (Slander) Per Quod - Essentials For Recovery

[2100.4](#a21004) Malice - Definition

[2100.5](#a21005) Actual Malice - Definition

[2100.6](#a21006) Libel And Slander - Affirmative Defense - Truth

[2100.7](#a21007) Libel (Slander) - Damages

Comment

Instructions in this Chapter pertain to actions for libel and slander.
However, they are not applicable to cases in which the defense of First
Amendment of the United States Constitution protection with respect to
\"public figures\" is claimed. See, New York Times v. Sullivan, 376 U.S.
254 (1964) and subsequent cases of the United States Supreme Court.

For a discussion of the First Amendment protection in Iowa with respect
to \"public figures\", see Johnson v. Nickerson, 542 N.W.2d 506 (Iowa
1996).

[]{#a21001 .anchor}2100.1 Libel (Slander) Per Se - Essentials For
Recovery. Plaintiff must prove both of the following propositions:

1\. The defendant made the statements.

2\. The defendant communicated the statements to someone other than the
plaintiff.

If the plaintiff has failed to prove either of these propositions, the
plaintiff is not entitled to recover damages. If the plaintiff has
proven both of these propositions, then the plaintiff has proven libel
(slander) and is entitled to recover damages in some amount. \[If
defendant has claimed truth as an affirmative defense, then add \"unless
defendant has proven the defense of truth\" as explained in Instruction
No. \_\_\_\_\_\_\_\_\_\_.\]

Authority

Vinson v. Linn-Mar Community School District, 360 N.W.2d 108, 116 (Iowa
1984)

Brown v. First National Bank of Mason City, 193 N.W.2d 547, 555 (Iowa
1972)

Higgins v. Gordon Jewelry Corporation, 433 N.W.2d 306 (Iowa App. 1988)

Kelly v. Iowa State Education Association, 372 N.W.2d 288, 300-301 (Iowa
App. 1985)

Comment

Note: The Court has defined libel as defamation involving written or
printed statements; slander has been defined by the Court as defamation
involving oral statements. The committee is giving general marshalling
instructions which are applicable to either libel or slander depending
on the context of the case.

This instruction shall be given when the court determines that the
statements are libel (slander) per se. Vinson v. Linn-Mar Community
School District, 360 N.W.2d 108, 116 (Iowa 1984)

The general rule is that communications of defamatory statements only to
the one defamed does not constitute \"publication\" and a defendant
would not ordinarily be responsible under a libel (slander) theory if
the injured person repeats the libelous material or in some fashion
communicates it to others. However, there is an exception to this rule
when a defendant knows or should know that the statements must
eventually come to the attention of others because the injured party
will be under strong compulsion to bring them to the attention of a
third person. See Belcher v. Little, 315 N.W.2d 734, 737-738 (Iowa 1982)

Where the plaintiff has alleged libel (slander) per se and the defendant
has established his or her defense of qualified privilege, then
plaintiff must prove as an additional element \"actual malice\". In that
circumstance, the following additional element should be added: 3. The
defendant made the statements with actual malice. The definition of
actual malice then should also be given to the jury as noted in Iowa
Civil Jury Instruction 2100.5

The elements of a qualified privilege are set out in the case of Knudsen
v. Chicago and North Western Transportation Company, 464 N.W.2d 439
(Iowa 1990).

[]{#a21002 .anchor}2100.2 Libel (Slander) Per Se - Essentials For
Recovery. Plaintiff must prove all of the following propositions:

1\. The defendant made the statements.

2\. The defendant communicated the statements to someone other than the
plaintiff.

3\. The statements would reasonably be understood to be an expression
which would \[attack a person\'s integrity or moral character\] \[expose
the person to public hatred, contempt or ridicule\] \[deprive the person
of the benefits of public confidence and social dealings\] \[injure the
plaintiff in the maintenance of \[his\] \[her\] \[business\].

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proven all of
the propositions, then the plaintiff is entitled to damages in some
amount. \[If defendant has claimed truth as an affirmative defense, then
add \"unless defendant has proven the defense of truth\" as explained in
Instruction No. \_\_\_\_\_\_\_\_\_.\]

Authority

Graves v. Iowa Lakes Community Coll., 639 N.W.2d 22 (Iowa 2002)

Vinson v. Linn-Mar Community School District, 360 N.W.2d 108 (Iowa 1984)

Brown v. First National Bank of Mason City, 193 N.W.2d 555 (Iowa 1972)

Plendel v. Beuttler, 253 Iowa 259; 111 N.W.2d 669, 670 (Iowa 1961)

Higgins v. Gordon Jewelry Corporation, 433 N.W.2d 306 (Iowa Ct. App.
1988)

Kelly v. Iowa State Education Association, 372 N.W.2d 288, 300-301 (Iowa
Ct. App. 1985)

Comment

Caveat: This instruction shall be given in this form only when the court
determines that the libelous statements may or may not be interpreted as
being libel per se. Vinson v. Linn-Mar Community School District, 360
N.W.2d 108 (Iowa 1985)

Note: Where the plaintiff has alleged libel (slander) per se and the
court has determined the defense of qualified privilege has been
established, then plaintiff must prove \"actual malice\" as an
additional element. In the circumstance, the following additional
element should be added: \[4. The defendant made the statements with
actual malice.\] The definition of actual malice then should also be
given to the jury as noted in Iowa Civil Jury Instruction 2100.5.

[]{#a21003 .anchor}2100.3 Libel (Slander) Per Quod - Essentials For
Recovery. The plaintiff must prove all of the following propositions:

1\. The defendant made written or printed (oral) statement(s) concerning
the plaintiff.

2\. The statement(s) \[was\] \[were\] false.

3\. The defendant made the statement(s) with malice.

4\. The defendant communicated the statement(s) to someone other than
the plaintiff.

5\. The statement(s) tended to \[injure the reputation of plaintiff\]
\[expose plaintiff to public hatred, contempt or ridicule\] \[injure the
plaintiff in \[his\] \[her\] efforts to maintain \[his\] \[her\]
business\].

6\. The statement(s) caused damage to the plaintiff.

7\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proven all of
these propositions, the plaintiff is entitled to damages in some amount.
(If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proven all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_\_.)

(If truth is asserted as a defense, add this paragraph: If the plaintiff
has sustained \[his\] \[her\] burden of proving all the elements above,
you must then consider defendant\'s affirmative defense of truth as
explained in Instruction No. \_\_\_\_\_\_\_\_\_\_.)

Authority

Vinson v. Linn-Mar Community School District, 360 N.W.2d 108 (Iowa 1984)

Comment

Note: This general liability instruction is applicable where the court
determines statements are not libel per se and the plaintiff is not a
public figure as defined by the United States Supreme Court in New York
Times v. Sullivan, 376 U.S. 254 (1964) and subsequent cases of the
United States Supreme Court.

[]{#a21004 .anchor}2100.4 Malice - Definition. The defendant made
statements with malice if the statements were made knowing they were
false, or with reckless disregard if the statements were true or false.

Authority

Vinson v. Linn-Mar Community School District, 360 N.W.2d 108 (Iowa 1984)

Comment

Note: This definition should be used in the limited context when the
plaintiff has alleged libel and the court has determined as a matter of
law that the statements are not libel per se. The definition then will
be used in association with Iowa Civil Jury Instruction 2100.3.

[]{#a21005 .anchor}2100.5 Actual Malice - Definition. The defendant made
statements with actual malice if the statements were made with ill-will
or wrongful motive.

Authority

Haldeman v. Total Petroleum, Inc., 376 N.W.2d 98 (Iowa 1985)

Vinson v. Linn-Mar Community School District, 360 N.W.2d 108 (Iowa 1984)

Kelly v. Iowa State Education Association, 372 N.W.2d 288 (Iowa Ct. App.
1985)

Comment

Note: The court would provide this definition of actual malice in the
limited context when plaintiff has alleged libel (slander) per se and
the court has determined a qualified privilege applies. In this limited
context, actual malice would be an additional element of proof which
must be established by plaintiff in order to recover on a libel
(slander) per se theory.

[]{#a21006 .anchor}2100.6 Libel And Slander - Affirmative Defense -
Truth. The defendant claims the statement complained about is true. The
fact the statement is true or substantially true is a complete defense,
regardless of bad faith or malicious purpose.

The defendant must prove the truth of the statement. To do so, the
defendant must establish the truth of the entire language of the
statement, and establish it in the sense attributed to it by the
plaintiff. Slight inaccuracies of expression are not important so long
as the statement is substantially true.

If the defendant has proven the truth of the statement, then the
plaintiff cannot recover. If the defendant has failed to prove the truth
of the statement, then you shall consider whether the plaintiff is
entitled to recover damages in accordance with other instructions.

Authority

Kennedy v Zimmerman, 601 N.W.2d 61 (Iowa 1999)

Hovey v. Iowa State Daily Publication Record, Inc., 372 N.W.2d 253 (Iowa
1985)

Brown v. First National Bank, 193 N.W.2d 547 (Iowa 1972)

Comment

Note: The Committee has not drafted instructions on other potential
affirmative defenses which may apply in a given case situation. These
might include the defense of opinion which has been noted in Kelly v.
Iowa State Education Association, 372 N.W.2d 288, 300-301 (Iowa App.
1985). The counsel and court may have other additional affirmative
defenses which might apply in a given case situation.

[]{#a21007 .anchor}2100.7 Libel (Slander) - Damages. If you find
(injured party) is entitled to recover damages, it is your duty to
determine the amount. In doing so, you shall consider the following
items:

1\. General damages. General damages are presumed to result from the
communication of a \[libelous\] \[slanderous\] statement. These are the
kind of damages the law presumes naturally and necessarily result from
the communication of \[libelous\] \[slanderous\] statements.\*

2\. The reasonable value of any loss of reputation suffered by (injured
party). In determining this item of damage, you may consider (injured
party)\'s reputation before the statement was made. You may also
consider the extent to which the statement was communicated.\*\*

3\. \[Any other items of damage in Chapter 200 which are supported by
the evidence.\]

Damages must be limited to those which naturally result from the
defendant\'s statement.

Authority

Rees v. O\'Malley, 461 N.W.2d 833 (Iowa 1991)

Kelly v. Iowa State Education Association, 372 N.W.2d 288 (Iowa Ct. App.
1985)

Vinson v. Linn-Mar Community School Districts, 360 N.W.2d 108 (Iowa
1984)

Brown v. First National Bank, 193 N.W.2d 547 (Iowa 1972)

Comment

Note: \*This item of damage should only be given in cases of libel or
slander per se.

\*\*This item of damage should only be given if supported by the
evidence.

[]{#CH2200 .anchor}**CHAPTER 2200**

# MALICIOUS PROSECUTION

[2200.1](#a22001) Malicious Prosecution - Essentials For Recovery -
Prior Criminal Prosecution

[2200.2](#a22002) Malicious Prosecution - Instigation Of Prosecution -
Where Prosecution Formally

Commenced By A Public Official

[2200.3](#a22003) Malicious Prosecution - Probable Cause

[2200.4](#a22004) Malicious Prosecution - Probable Cause - Effect Of
Conviction

[2200.5](#a22005) Malicious Prosecution - Malice (Public Official)

[2200.6](#a22006) Malicious Prosecution - Malice (Non-Public Official)

[2200.7](#a22007) Malicious Prosecution - Favorable Termination Of Prior
Criminal Proceeding

[2200.8](#a22008) Malicious Prosecution - Malice And Probable Cause -
Advice Of An Attorney

[2200.9](#a22009) Malicious Prosecution - Essentials For Recovery -
Prior Civil Proceeding

[2200.10](#a220010) Malicious Prosecution - Probable Cause - Prior Civil
Proceeding

[]{#a22001 .anchor}2200.1 Malicious Prosecution - Essentials For
Recovery - Prior Criminal Prosecution. \"Malicious prosecution\" means
causing an unsuccessful criminal proceeding with malice and without
probable cause.

The plaintiff must prove all of the following propositions:

1\. Plaintiff was prosecuted in a criminal proceeding in \[insert the
name, date and place of prior prosecution\].

2\. The defendant caused that prosecution.

3\. The prosecution ended favorably for the plaintiff.

4\. The defendant acted without probable cause.

5\. The defendant acted with malice.

6\. The prosecution was a proximate cause of plaintiff\'s damage.

7\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Mills County State Bank v. Roure, 291 N.W.2d 1 (Iowa 1980)

Paige v. City of Chariton, 252 N.W.2d 433 (Iowa 1977)

[]{#a22002 .anchor}2200.2 Malicious Prosecution - Instigation Of
Prosecution - Where Prosecution Formally Commenced By A Public Official.
A person who does not personally file criminal charges may cause them to
be started in one of two ways: (1.) By convincing a third person, either
a private person or a public prosecutor, to file the charge; or (2.) By
convincing a public official to file them.

A person does not cause a prosecution when the decision to file charges
is left to the uncontrolled choice of another person.

When a person gives information to a prosecutor or official \[he\]
\[she\] believes to be true and the person receiving the information
freely chooses to file charges based upon that information, the informer
is not liable even though the information proves to be false and \[his\]
\[her\] belief was one that a reasonable person would not believe.

You may conclude a person caused the prosecution if that person caused
the filing of charges by either giving information which \[he\] \[she\]
knew to be false to a prosecutor or public official or influenced the
prosecutor or public official by direction, request or pressure of any
kind so that the person\'s conduct was the determining factor in the
decision to file the charges.

Authority

Rasmussen Buick - GMC, Inc. v. Roach, 314 N.W.2d 374 (Iowa 1982)

[]{#a22003 .anchor}2200.3 Malicious Prosecution - Probable Cause.
Probable cause for filing a criminal charge means having a reasonable
ground. Probable cause exists where the defendant knew enough about the
facts and circumstances and had reasonable trustworthy information,
including what someone else told \[him\] \[her\] so that a reasonable
person would believe that the plaintiff was guilty of the crime charged.

Probable cause does not require absolute certainty or proof beyond a
reasonable doubt. It is to be determined by the factual and practical
considerations of everyday life on which reasonable and careful persons
\[not legal experts\] act.

Authority

Sisler v. City of Centerville, 372 N.W.2d 248 (Iowa 1985)

Restatement (Second) of Torts, section 662

[]{#a22004 .anchor}2200.4 Malicious Prosecution - Probable Cause -
Effect Of Conviction. The evidence shows the plaintiff was convicted of
the crime charged. You may presume from this conviction that there was
probable cause to file the charge \[even though plaintiff was later
acquitted of said offense on appeal\]\*. This conclusion can be overcome
by the facts, circumstances and conditions shown by the evidence.

Authority

Paige v. City of Chariton, 252 N.W.2d 433 (Iowa 1977)

Comment

Note: \*Use only if supported by the evidence.

[]{#a22005 .anchor}2200.5 Malicious Prosecution - Malice (Public
Official). An act is done \"maliciously\" when the main reason for doing
the act was ill-will, hatred or other wrongful motive. The fact that
defendant disliked or felt resentment towards the plaintiff would not in
itself constitute malice.

Authority

Moser v. County of Black Hawk, 300 N.W.2d 150 (Iowa 1981)

[]{#a22006 .anchor}2200.6 Malicious Prosecution - Malice (Non-Public
Official). An act is \"malicious\" when the main reason for the act was
ill-will, hatred or other wrongful purpose. If you find the defendant\'s
act was intentional and without probable cause or excuse, then you may
conclude the act was done with ill-will, hatred or other wrongful
purpose.

Authority

Moser v. County of Black Hawk, 300 N.W.2d 150 (Iowa 1981)

[]{#a22007 .anchor}2200.7 Malicious Prosecution - Favorable Termination
Of Prior Criminal Proceeding. The \[refusal of the grand jury to indict
the plaintiff\] \[dismissal of the charge by the prosecuting attorney\]
\[finding of the plaintiff not guilty in the prior criminal case\]
constitutes a favorable ending to the prosecution.

Authority

[Winkel v. Von Maur]{.underline}, \_\_\_\_ N.W.2d \_\_\_\_ (Iowa 2002),
Iowa Supreme Court, Slip Opinion, filed October 9, 2002.

[]{#a22008 .anchor}2200.8 Malicious Prosecution - Malice And Probable
Cause - Advice Of An Attorney. The defendant claims the affirmative
defense of advice of an attorney. If a criminal prosecution is started
upon the advice of an attorney, it may in certain instances be a defense
to plaintiff\'s claim.

The defendant must prove all of the following propositions:

1\. The attorney giving the advice was admitted to practice law in this
state.\*

2\. The defendant had no reason to believe that the attorney had a
personal interest in obtaining a conviction of the plaintiff.

3\. The attorney\'s advice was sought in good faith from honest motives
and for good purposes.

4\. Defendant had made a full disclosure to the attorney of all facts
concerning the case.

5\. The defendant received the attorney\'s advice in good faith with the
honest belief in the probable guilt of the person suspected.

If the defendant has failed to prove any of these propositions,
defendant has not proved their defense. If the defendant has proved all
of these propositions, the plaintiff cannot recover and your verdict
will be for the defendant.

Authority

Brown v. Monticello State Bank, 420 N.W.2d 475 (Iowa 1988)

Schnathorst v. Williams, 240 Iowa 561, 36 N.W.2d 739 (1949)

Restatement of Torts (Second), Section 666

Comment

Caveat: This instruction can be used in cases involving civil
proceedings by: (1) substituting \"civil proceeding\" for \"criminal
prosecution\", and (2) by omitting \"in the probable guilt of the
plaintiff\" and inserting \"that defendant had probable cause for
instituting the civil proceeding\".

\*See: Restatement of Torts (Second), Section 666(2), if attorney is not
admitted in Iowa.

[]{#a22009 .anchor}2200.9 Malicious Prosecution - Essentials For
Recovery - Prior Civil Proceeding. \"Malicious prosecution\" means
causing an unsuccessful civil action with malice and without probable
cause. In order to recover, the plaintiff must prove each of the
following propositions:

1\. The plaintiff was required to defend a civil action based upon a
claim for \[here give the nature of the action, the name, place and date
of the case\].

2\. The defendant caused the civil action to be filed.

3\. The action ended favorably for the plaintiff.

4\. The defendant acted without probable cause.

5\. The defendant acted with malice.

6\. As a proximate cause of the filing of the civil action, plaintiff
sustained \[a seizure of property\] \[here describe the special injury
which would not necessarily result in all suits prosecuted to recover
for like causes of actions\].

7\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Brody v. Ruby, 267 N.W.2d 902 (Iowa 1978)

[]{#a220010 .anchor}2200.10 Malicious Prosecution - Probable Cause -
Prior Civil Proceeding. Probable cause for the filing of the civil
action means having a reasonable ground. Probable cause exists where the
defendant had reasonable trustworthy information about the facts and
circumstances \[including what someone else told \[him\] \[her\] which
was sufficient so that a reasonable person would believe that
(plaintiff) was responsible for defendant\'s damages.

Probable cause does not require absolute certainty of proof beyond a
reasonable doubt. It is to be determined by the common sense a
reasonable person would apply to the circumstances of everyday life.

Authority

Davis v. Rudolph, 243 Iowa 744, 52 N.W.2d 15 (1952)

Comment

Caveat: In a lawsuit against an attorney for prosecuting an action, or
continuing to prosecute an action, on behalf of a client, the rules
relating to probable cause differ and are explained in Wilson v. Hayes,
464 N.W.2d 250 (Iowa 1990). Instructions should be tailored accordingly.

[]{#CH2300 .anchor}**CHAPTER 2300**

# BAILMENTS

[2300.1](#a23001) Bailment Defined

[2300.2](#a23002) Bailment For Hire, Defined

[2300.3](#a23003) Gratuitous Bailment Defined

[2300.4](#a23004) Bailment For Hire Or For Benefit Of Both Parties,
Bailee\'s Responsibility

[2300.5](#a23005) Duty To Warn

[2300.6](#a23006) Gratuitous Bailor, Responsibility

[2300.7](#a23007) Gratuitous Bailee, Responsibility

[2300.8](#a23008) Presumption From Damage

[]{#a23001 .anchor}2300.1 Bailment Defined. When one gives possession
and the right to use personal property to another who agrees to return
the same property at a future time, the transaction is known in law as a
bailment. The person who gives possession is known as a bailor. The
person who takes possession is known as a bailee.

Authority

Farmers Butter and Dairy Co-op v. Farm Bureau Mut. Ins. Co., 196 N.W.2d
533, 538 (Iowa 1972)

Reimers v. Petersen, 237 Iowa 550, 22 N.W.2d 817 (1946)

In re Insolvency F. & M. Savings Bank, 202 Iowa 859, 211 N.W. 532 (1926)

[]{#a23002 .anchor}2300.2 Bailment For Hire Defined. A bailment for hire
is created when:

1\. A person accepts delivery of property from the owner for
\[safekeeping, storage, repair or transportation\].

2\. Under an agreement express or implied, that something is to be paid
by the owner for such \[safekeeping, storage, repair or
transportation\], or when the owner of property delivers or causes it to
be delivered to and for the use or benefit of another, under an
agreement, express or implied, that something is to be paid to the owner
by the person receiving same for such use or benefit.

In the absence of an agreement to the contrary, the law implies a
contract between a bailor and a bailee that the bailor will pay a
reasonable sum for the \[safekeeping, repair, transportation\] of such
property, or that the bailee will pay a reasonable sum for the use or
benefit of such property, as the case may be. The owner who so delivers
personal property to another is known as a bailor for hire, and the
person to whom such property is so delivered is known as a bailee for
hire.

Authority

Lewis v. Best by Test Garage, 200 Iowa 1051, 205 N.W. 983 (1925)

Cullen v. Lord, 39 Iowa 302 (1874)

131 A.L.R. 1170

[]{#a23003 .anchor}2300.3 Gratuitous Bailment Defined. A gratuitous
bailment is created when:

1\. When a person receives from the owner any property for
\[safekeeping, storage, or transportation\].

2\. Without any agreement, express of implied, that the person receiving
it shall be paid for so doing, or when the owner delivers or causes to
be delivered to another person for the use and benefit of such other
person, without any agreement, express of implied, that the owner shall
be paid.

The owner who so delivers personal property to another is known as a
gratuitous bailor, and the person to whom such property is delivered is
known as a gratuitous bailee.

Authority

Kubli v. First National Bank, 193 Iowa 833, 186 N.W. 421 (1922)

[]{#a23004 .anchor}2300.4 Bailment For Hire Or For Benefit Of Both
Parties, Bailee\'s Responsibility. When there is no special contract a
bailee \[for hire\] \[of a bailment for the benefit of both parties\]
has a duty to use ordinary care in relation to the property involved.
The bailee does not guarantee the safety of the property. This means the
bailee is not liable merely because the property is \[lost - damaged -
injured - destroyed\] while in the possession or under control of the
bailee. The bailee is liable, if at all, only if the bailee has done
something with reference to the use or care of the property that an
ordinarily prudent person under the same or similar circumstances would
not have done, or has failed to do something with reference to the use
or care of the property that an ordinarily prudent person under the same
or similar circumstances would have done.

Authority

Farmers Butter & Dairy Coop v. Farm Bureau Mut. Ins. Co., 196 N.W.2d 533
(Iowa 1972)

Berhow v. Kroack, 195 N.W.2d 379 (Iowa 1972)

Walters v. Sanders Motor Co., 229 Iowa 398, 294 N.W. 621 (1940)

Wisecarver v. Long, 120 Iowa 59, 94 N.W. 467 (1903)

[]{#a23005 .anchor}2300.5 Duty To Warn. A \[lessor\] \[bailor\] of an
article has a duty to warn the person to whom the article is supplied
if:

\(a\) The \[lessor\] \[bailor\] knows or has reason to know that the
article is or is likely to be dangerous for the use for which it is
supplied, and

\(b\) The \[lessor\] \[bailor\] has no reason to believe that the person
to whom the article is supplied will realize its dangerous condition.

Under these circumstances, the \[lessor\] \[bailor\] has a duty to
exercise reasonable care to inform the person to whom the article is
supplied of its dangerous condition or of the facts which make it likely
to be dangerous.

A violation of this duty is negligence.

Authority

Anderson v. Glynn Constr. Co., Inc., 421 N.W.2d 141 (Iowa 1988)

Rinkleff v. Knox, 375 N.W.2d 262 (Iowa 1985)

Restatement (Second) of Torts, Section 388 (1965)

[]{#a23006 .anchor}2300.6 Gratuitous Bailor, Responsibility. A
gratuitous bailor is not liable merely because the property let or
loaned causes injury to the person to whom let or loaned, or to any
other person, while in \[his\] \[her\] possession.

A gratuitous bailor is liable, if at all, only when:

1\. The bailor knows, or should have known, that the property is or is
likely to be dangerous when put to the use for which it was let or
loaned.

2\. The bailor has no reason to believe that the person to whom the
property is let or loaned realizes the dangerous condition exists.

3\. The bailor fails to inform the person to whom the property is let or
loaned of its dangerous condition, or fails to make known the facts
making evident its dangerous condition.

A violation of this law is negligence.

Authority

Davis v. Sanderman, 225 Iowa 1001, 282 N.W.2d 717 (1938)

46 A.L.R.2d 427

[]{#a23007 .anchor}2300.7 Gratuitous Bailee, Responsibility. A
gratuitous bailee of personal property does not guarantee the safety of
that property while it is in the bailee\'s possession. This means that
the bailee is not liable merely because the personal property is
\[lost - damaged - destroyed\] while in \[his\] \[her\] possession. The
bailee is liable, if at all, only when the bailee has failed to exercise
that degree of care for such property that would be exercised by persons
of prudence in keeping property of like value under like circumstances.

A violation of this law is negligence.

Authority

Bowen v. First National Bank, 200 Iowa 40, 203 N.W. 569 (1925)

Kubli v. First National Bank, 199 Iowa 194, 200 N.W. 434 (1922)

[]{#a23008 .anchor}2300.8 Presumption From Damage. When property is
delivered to a bailee in good condition and returned in a damaged
condition, a presumption arises that the damage is due to the negligence
of the bailee. The presumption can be overcome if the damage is shown to
have occurred in spite of due care on the part of the bailee.

If the presumption is not overcome by the evidence, you may use the
presumption in determining whether the defendant was negligent.

But, if you find such presumption is overcome by evidence that the
damage occurred in spite of due care on the part of bailee, then you
will give no weight to the presumption, and the plaintiff must show by
the greater weight of the evidence that the defendant was negligent.

Authority

Noxera v. Wathan, 159 N.W.2d 513, 518 (Iowa 1968)

[]{#CH2400 .anchor}**CHAPTER 2400**

CONTRACTS

# Express

[2400.1](#a24001) Essentials For Recovery

[2400.2](#a24002) Competency

[2400.3](#a24003) Existence Of A Contract

[2400.4](#a24004) Consideration

[2400.5](#a24005) Terms - Interpretation

[2400.6](#a24006) Breach - Definition

[2400.7](#a24007) Performance By Plaintiff

[2400.8](#a24008) Affirmative Defenses - Essentials

[2400.9](#a24009) Impossibility Of Performance

[2400.10](#a240010) Prevention Of Performance

[2400.11](#a240011) Waiver Of Performance

[2400.12](#a240012) Renunciation

# Implied

[2400.13](#a240013) Definition - Implied Contract

[2400.14](#a240014) Definition - Implied Contract As To Compensation

# Insurance

[2410.1](#a24101) Insurance Contract - Essentials For Recovery
(Deleted - see Chapter 1400 - Insurance Company Liability)

[]{#a24001 .anchor}2400.1 Essentials For Recovery. Plaintiff must prove
all of the following propositions:

1\. The parties were capable of contracting.

2\. The existence of a contract.

3\. The consideration.\*

4\. The terms of the contract.

5\. The plaintiff \[has done what the contract requires\] \[has been
excused from doing what the contract requires as explained in
Instruction(s) No. \_\_\_\_\_\_\_\].

6\. The defendant has breached the contract.

7\. The amount of any damage defendant has caused.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Powell v. McBlain, 222 Iowa 799, 269 N.W. 883 (1936)

Port Huron Machinery Co. v. Wohlers, 207 Iowa 826, 221 N.W. 843 (1928)

Comment

Caveat: Use only propositions that are in dispute.

\*Consideration is presumed for a written agreement (Iowa Code section
537A.2), therefore want or failure of consideration is an affirmative
defense where a written agreement is involved. Iowa Code section 537A.3;
Hubbard Milling Company v. Citizens State Bank, 385 N.W.2d 255 (Iowa
1986). For UCC transactions see Iowa Code sections 554.3408 and
554.5105.

[]{#a24002 .anchor}2400.2 Competency. A person is capable of making a
contract unless the person lacked sufficient mental capacity to
understand it.

Authority

Matter of Guardianship of Collins, 327 N.W.2d 230 (Iowa 1982)

Urbain v. Speak, 258 Iowa 584, 139 N.W.2d 311 (1966)

In Re Estate of Faris, 159 N.W.2d 417 (Iowa 1968)

Swartwood v. Chance, 131 Iowa 714, 109 N.W. 297 (1906)

Iowa Code section 554.1103

[]{#a24003 .anchor}2400.3 Existence Of A Contract. The existence of a
contract requires a meeting of the minds on the material terms. This
means the parties must agree upon the same things in the same sense. You
are to determine if a contract existed from the words and acts of the
parties, together with all reasonable inferences you may draw from the
surrounding circumstances.

Authority

See authorities cited for 2400.1

Severson v. Elberon Elevator, Inc., 250 N.W.2d 417 (Iowa 1977)

Service Emp., Intern. Local No. 55 v. Cedar Rapids Community School
District, 222 N.W.2d 403 (Iowa 1974)

Fortgang Bros., Inc. v.Cowles, 249 Iowa 73, 85 N.W.2d 916 (1957)

In Re McKeon\'s Estate, 227 Iowa 1050, 289 N.W. 915 (1940)

Iowa Code section 554.2204

Comment

Note: If there is an issue as to whether preliminary negotiations ripen
into a contract, see Severson v. Elberon Elevator, Inc., 250 N.W.2d 417
(Iowa 1977).

[]{#a24004 .anchor}2400.4 Consideration. \"Consideration\" is either a
benefit given or to be given to the person who makes the promise \[or
some other person\] or a detriment experienced or to be experienced by
the person to whom the promise is made \[or some other person\]. Where
the contract provides for mutual promises, each promise is a
consideration for the other promise.

Authority

Matter of Guardianship of Collins, 327 N.W.2d 230 (Iowa 1982)

Powell v. McBlain, 222 Iowa 199, 269 N.W. 883 (1937)

Wilson v. Airline Coal Co., 215 Iowa 855, 246 N.W.753 (1933)

Iowa Code sections 537A.2

[]{#a24005 .anchor}2400.5 Terms - Interpretation. In determining the
terms of the contract you may consider the following:

1\. The intent of the parties along with a reasonable application of the
surrounding circumstances.

2\. The intent expressed in the language used prevails over any secret
intention of either party.

3\. The intent may be shown by the practical construction of a contract
by the parties and by the surrounding circumstances.

4\. You must attempt to give meaning to all language of a contract.
Because an agreement is to be interpreted as a whole, assume that all of
the language is necessary. An interpretation which gives a reasonable,
effective meaning to all terms is preferred to an interpretation which
leaves a part of the contract unreasonable or meaningless.

5\. The meaning of a contract is the interpretation a reasonable person
would give it if they were acquainted with the circumstances both before
and at the time the contract was made.

6\. Ambiguous language in a written contract is interpreted against the
party who selected it.

7\. Where general and specific terms in the contract refer to the same
subject, the specific terms control.

Authority

First Nat. Bank in Creston v. Smith, 331 N.W.2d 120 (Iowa 1983)

Broyles v. Iowa Dept. of Social Services, 305 N.W.2d 718 (Iowa 1981)

Village Supply Co., Inc. v. Iowa Fund, Inc., 312 N.W.2d 551 (Iowa 1981)

First Northwestern National Bank, Denison, v. Crouch, 287 N.W.2d 151
(Iowa 1980)

Lyon v. Willie, 288 N.W.2d 884 (Iowa 1980)

Fashion Fabrics of Iowa, Inc. v. Retail Investors Corp., 266 N.W.2d 22
(Iowa 1978)

Lovlie v. Plumb, 250 N.W.2d 56 (Iowa 1977)

Mopper v. Circle Key Life Ins. Co., 172 N.W.2d 118 (Iowa 1969)

Carson v. Great Lakes Pipe Line Co., 238 Iowa 50, 25 N.W.2d 855 (1947)

Iowa Code section 622.22

[]{#a24006 .anchor}2400.6 Breach - Definition. A breach of the contract
occurs when a party fails to perform a term of the contract.

Authority

Metropolitan Transfer Station, Inc. v. Design Structures, Inc., 328
N.W.2d 532 (Iowa App. 1982)

Sheer Const., Inc. v. W. Hodgman and Sons, Inc., 326 N.W.2d 328 (Iowa
1982)

[]{#a24007 .anchor}2400.7 Performance By Plaintiff. When a person agrees
to do something for a specified consideration to be received after full
performance, they are not entitled to any part of the consideration
until they have performed as agreed \[unless full performance has been
(excused) (waived) (prevented) (delayed) by the act of the other
party\].

However, a plaintiff who has not fully performed under the terms of the
contract may still recover some amount if the failure to render
performance due at an earlier time was not material (subject to
defendant\'s claim for partial breach). In determining whether a failure
to render or to offer performance is material, the following
circumstances are significant:

1\. The extent to which defendant will be deprived of the benefit which
defendant reasonably expected.

2\. The extent to which defendant can be adequately compensated for the
part of that benefit of which defendant will be deprived.

3\. The extent to which plaintiff will suffer forfeiture.

4\. The likelihood that plaintiff will cure the failure, taking account
of all the circumstances including any reasonable assurances.

5\. The extent to which the behavior of the plaintiff is in line with
standards of good faith and fair dealing.

Authority

Roland A. Wilson and Associates v. Forty-O-Four Grand-Corp., 246 N.W.2d
922 (Iowa 1976)

Lautenbach v. Meredith, 240 Iowa 166, 35 N.W.2d 870 (1949)

Andrew v. American Sav. Bank & Trust Co. of Davenport, 258 N.W. 911, 219
Iowa 921 (1935)

Theobald v. Weber, 259 Iowa 452, 143 N.W.2d 418 (1966)

Kaltoft v. Nielsen, 252 Iowa 249, 106 N.W.2d 597 (1961)

S. Hanson Lumber Company v. DeMoss, 153 Iowa 204, 111 N.W.2d 681 (1961)

Semler v. Knowling, 325 N.W.2d 395 (Iowa 1982)

Iowa Code section 554.2208

Restatement Contracts (Second), Sections 237 and 241

[]{#a24008 .anchor}2400.8 Affirmative Defenses - Essentials. Defendant
claims performance was excused because of: \[impossibility of
performance\] \[prevention\] \[waiver\] \[renunciation\]

If the defendant has proved \[impossibility of performance\]
\[prevention\] \[waiver\] \[renunciation\] \[failure of
consideration\*\], then you shall find for the defendant.

If the defendant has failed to prove \[impossibility of performance\]
\[prevention\] \[waiver\] \[renunciation\] \[failure of
consideration\*\], then you shall decide whether the plaintiff is
entitled to recover damages.

Authority

\*Consideration is presumed for a written agreement (Iowa Code section
537A.2), therefore want or failure of consideration is an affirmative
defense where a written agreement is involved. Iowa Code section 537A.3;
Hubbard Milling Company v. Citizens State Bank, 385 N.W.2d 255 (Iowa
1986) for UCC transactions see Iowa Code sections 554.3408 and 554.5105.

[]{#a24009 .anchor}2400.9 Impossibility Of Performance. Impossibility of
performance means extraordinary circumstances which:

1\. Prevent a person from carrying out the terms of the contract.

2\. Could not reasonably have been anticipated; and

3\. Are not the fault of that party.

Performance is not excused if the party who promised to perform created
the circumstances which made performance impossible, or just because
performance became economically burdensome or unattractive.

Authority

Yager v. Farmers\' Mut. Telephone Co., 323 N.W.2d 245 (Iowa 1982)

Associated Grocers of Iowa Co-op, Inc. v. West, 297 N.W.2d 103 (Iowa
1980)

Nora Springs Co-op, Co. v. Brandau, 247 N.W.2d 774 (Iowa 1976)

Comment

Note: This instruction may be used where a plaintiff claims this ground
as an excuse for nonperformance or where defendant raises this
affirmative defense as a discharge of a duty. If the contract is within
the scope of Article 2 of the Uniform Commercial Code, the Instruction
should be modified to conform with Iowa Code Sections 554.2101 and
554.2615(a).

[]{#a240010 .anchor}2400.10 Prevention Of Performance. Performance is
excused if the other party prevents it or makes it impossible.

Authority

Sheer Const., Inc. v. W. Hodgman and Sons, Inc., 326 N.W.2d 328 (Iowa
1982)

Kaltoft v. Nielsen, 252 Iowa 249, 106 N.W.2d 597 (1960)

Comment

Note: This instruction may be used where a plaintiff claims this ground
as an excuse for nonperformance or where defendant raises this
affirmative defense as a discharge of a duty.

[]{#a240011 .anchor}2400.11 Waiver of Performance. The right to insist
on performance can be given up. This is known as a \"waiver\". A waiver
may be shown by actions, or you may conclude from (name)\'s conduct and
the surrounding circumstances that a waiver was intended. The essential
elements of a waiver are the existence of a right, knowledge of that
right, and an intention to give it up.

[]{#a240012 .anchor}2400.12 Renunciation. Performance is excused where
one party clearly rejects the contract by giving notice to the other
that they will not perform.

Authority

Glass v. Minnesota Protective Life Ins. Co., 314 N.W.2d 393 (Iowa 1982)

Comment

Note: This instruction may be used where a plaintiff claims this ground
as an excuse for nonperformance or where defendant raises this
affirmative defense as a discharge of a duty.

[]{#a240013 .anchor}2400.13 Definition - Implied Contract. The law
implies a promise to pay the reasonable value of services \[and
materials\] a person knowingly accepts from another.

Authority

In Re: Holta\'s Estate, 246 Iowa 527, 68 N.W.2d 314 (1955)

[]{#a240014 .anchor}2400.14 Definition - Implied Contract As To
Compensation. When a person employs someone to provide services \[and
materials\] without agreeing on the amount of pay, an agreement is
implied to pay the reasonable value of those services \[and materials\].

Authority

Olberding Construction Co. v. Ruden, 243 N.W.2d 872 (Iowa 1976)

Heninger & Heninger v. Davenport Bank & Trust Co., 341 N.W.2d 43 (Iowa
1983)

McDonald v. Welch, 176 N.W.2d 846 (Iowa 1970)

[]{#a24101 .anchor}2410.1 Insurance Contract - Essentials For Recovery.
The plaintiff must prove all of the following propositions:

1\. The plaintiff was insured for loss due to \[theft, fire, storm,
liability, etc.\] by the defendant on the date of loss.

2\. The plaintiff had paid the premiums which were due.

3\. The plaintiff had a loss by \[theft, fire, storm, liability, etc.\]
which was covered by the insurance policy with the defendant.

4\. The plaintiff gave the defendant \[(notice of loss required by the
policy) or (the failure to give notice of loss was excused, waived, or
not prejudicial.)\]

\[(timely proof of loss) or (the failure to give proof of loss
was/excused/ /waived/ /not prejudicial.)\]

5\. The defendant did not pay the plaintiff\'s claim.

6\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of the
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_.\]

Comment

Note: Omit portions of paragraph 4 which are not applicable.

Note: For measure of recovery of total property loss, see: McIntosh v.
Home Mutual Insurance Assn., 198 Iowa 1038, 1039, 200 N.W. 694. To
determine actual cash value by using market value and/or replacement
cost, see: Britven v. Occidental Insurance Co., 234 Iowa 682, 685 to
687, 13 N.W.2d 791, 793 to 794: Stotenbecker v. Iowa Power & Light Co.,
250 Iowa 1073, 1080, 96 N.W.2d 468, 472.

Note: See: Henschel v. Hawkeye-Security Insurance Co., 178 N.W.2d 409,
415-417 (Iowa 1970) concerning legal excuse for not giving notice of
loss. See: Pirkl v. Northwestern Mut. Ins. Ass\'n., 348 N.W.2d 633, 637
(Iowa 1984) concerning legal excuse or no prejudice for not giving
notice of loss within a specific time period. See: Basta v. Farm
Property Mutual Insurance Assoc., 217 Iowa 240, 249, 252 N.W. 125 (1933)
on the issue of the insurance company\'s waiver of a proof of loss
statement.

Caveat: Instructions in a breach of insurance contract case must be
tailored to the specific language of the insurance policy.

[]{#CH2500 .anchor}**CHAPTER 2500**

# EMINENT DOMAIN

[2500.1](#a25001) Statement Of The Case

[2500.2](#a25002) Condemnation - Authority

[2500.3](#a25003) Condemnation - Measure Of Recovery

[2500.4](#a25004) Fair And Reasonable Market Value

[2500.5](#a25005) Fair And Reasonable Actual Value

[2500.6](#a25006-1) Valuation Factors

[2500.7](#a25007) Comparables

[2500.8](#a25008) Controlled Access

[2500.9](#a25009) Costs - Attorneys\' Fees - Interest

[2500.10](#a250010) Measure Of Damages Re Leasehold

[2500.11](#a250011) Verdict Instruction (Partial Taking)

[2500.12](#a250012) Separate Tracts Operated As One

[2500.13](#a250013) Eminent Domain - Partial Taking - Highest And Best
Use - Not Disputed

[2500.14](#a250014) Eminent Domain - Highest And Best Use - Disputed
Partial Taking

[2500.15](#a250015) Eminent Domain - Highest And Best Use - Zoning
Classification

[]{#a25001 .anchor}**2500.1 Statement Of The Case.** This is a lawsuit
to determine the amount of damages due (name), the \[owner\]\[contract
purchaser\]\[tenant\], because of the condemnation or taking of a parcel
of land used in connection with the improvement of a
\[highway\]\[street\] located (describe location) in
\_\_\_\_\_\_\_\_\_\_\_\_\_ County.

It is undisputed that on (date), the acquiring agency condemned the
particular parcel of land involved in this lawsuit. \[The acquiring
agency has also condemned right of direct access between the
\[highway\]\[street\], and that part of the \[owner\]\[contract
purchaser\] \[tenant\]'s adjoining property is not included in the
condemnation.\]

The \[owner\]\[contract purchaser\]\[tenant\] claims certain items of
damage for the land taken which include \[list of claims for which
damages are sought\].

The acquiring agency admits the \[owner\]\[contract
purchaser\]\[tenant\] is owed fair and reasonable compensation, but
denies the \[owner\]\[contract purchaser\]\[tenant\] has been damaged to
the extent claimed.

You are to decide the amount of damage the \[owner\]\[contract
purchaser\]\[tenant\] has suffered which must be computed under the
rules explained in these instructions.

**Authority**

*[Iowa Code]{.underline} sections 6B.1(1), 6B.14 and 6B.58.*

6/01

[]{#a25002 .anchor}**2500.2 Condemnation - Authority.** Governmental
authorities are authorized to condemn and take private property for
public purposes. This is known as the right of eminent domain.

Private property shall not be taken for public use, however, without
fair and just compensation to its \[owner\]\[contract purchaser\]
\[tenant\]. Therefore, the only issue for you to decide is the amount of
damages the \[owner\]\[contract purchaser\]\[tenant\] has suffered as a
result of the taking.

Just compensation means the payment of money to the \[owner\]\[contract
purchaser\]\[tenant\] of the condemned property that fully makes up for
their loss.

Whether or not \[owner\]\[contract purchaser\]\[tenant\] of property
want to part with their property has no bearing upon the fair and
reasonable market value of the property nor the amount of compensation
to be paid.

The \[owner\]\[contract purchaser\]\[tenant\] and acquiring agency have
equal rights in Court. This means you are to decide this case as though
it were a case between two individuals.

**Authority**

*[Iowa Code]{.underline} chapter 6B*

*Right to Compensation: Constitution of Iowa, Article I, Section 18*

> *[Harris v. Board]{.underline}, 244 Iowa 1169, 1178, 59 N.W.2d 234
> (1953) and citation Impartiality:*
>
> *[Welton v. Iowa State Highway Commission]{.underline}, 211 Iowa 625,
> 233 N.W. 876 (Iowa (1930).*

6/01

[]{#a25003 .anchor}**2500.3 Condemnation - Measure Of Recovery**. The
appellant (name) must prove the "fair and just compensation" to which
\[he\] \[she\] \[it\] is entitled. Fair and just compensation is the
difference in the fair and reasonable market value of their property as
a whole immediately before and the fair and reasonable market value of
the remaining property immediately after the taking which occurred on
(date).

In making your decision, you must disregard benefits to the
\[owner\]\[contract purchaser\]\[tenant\]'s property which may have
resulted or may result in the future from any improvements.

It is not necessary for the members of the jury to agree on the exact
value before and after condemnation. The only agreement required for a
verdict is the difference in value of the property before and its value
after the taking by the acquiring agency.

**Authority**

*[Constitution of Iowa]{.underline}, Article I, Section 18*

*[Witt v. State of Iowa]{.underline}, 223 Iowa 156, 272 N.W. 419
(1937).*

*[Neddermeyer v. Crawford County]{.underline}, 290 Iowa 883, 889, 175*
N.W. 339 *(1921).*

6/01

[]{#a25004 .anchor}**2500.4 Fair And Reasonable Market Value.** The term
"fair and reasonable market value" means the cash sales price between a
voluntary, willing seller who is not forced to sell, and a voluntary,
willing buyer who is not forced to buy. It assumes a buyer and seller
are bargaining freely in the open market for the purchase and sale of
real estate.

The term does not mean a value under circumstances where greater than
its fair price would be obtained, nor does it mean the price which the
property would bring at a forced sale. Also, it does not mean what the
property is worth to the \[owner\]\[contract purchaser\]\[tenant\] nor
what the acquiring agency can afford to pay.

**Authority**

> *[Hamer v. Iowa State Highway Commission]{.underline}, 250 Iowa 1228,
> 98 N.W.2d 746 (1959)*
>
> *[Stortenbecker v. Iowa Power & Light Co.]{.underline}, 250 Iowa 1073,
> 1080, 96 N.W.2d 205 (1963)*
>
> *[Comstock v. Iowa State Highway Commission]{.underline}, 254 Iowa
> 1301, 121 N.W.2d 205 (1963)*
>
> *[Nedrow v. Michigan-Wisconsin Pipe Line Co.]{.underline}, 245 Iowa
> 763, 61 N.W.2d 687 (1954)*

*[Korf v. Fleming]{.underline}, 239 Iowa 501, 32 N.W.2d 85, 3 A.L.R.2d
270 (1948)*

*29A C.J.S. Eminent Domain, Section 136(3)*

**Comment**

> *Note: If the condemnation is of a limited special use property for
> which there is no ascertainable market value, the jury must find the
> fair and reasonable intrinsic value of the property. Instructions used
> in such a case should reflect this change in terminology. See Nichols,
> [The Law of Eminent Domain]{.underline}, (Rev. 3rd Ed.) Section 232.*

6/01

[]{#a25005 .anchor}**2500.5 Fair And Reasonable Actual Value.** Deleted.

[]{#a25006-1 .anchor}**2500.6 Valuation Factors.** Factors you may
consider in determining the fair and reasonable market value of the
property are:

1.  The location and topography of the property.

2.  The size and shape of the property.

3.  The improvements made on the property since it was purchased.

4.  The quality, age and construction of the buildings and their
    location as to the highway boundary line.

5.  Comparable sales of other property.

6.  Loss of reasonable and convenient access to the adjoining property
    resulting from the highway construction.

7.  The extent of the land actually taken.

8.  Any inconvenience resulting from the taking.

9\. The character of the neighborhood.

10\. The use and capability of the property.

11\. Other circumstances disclosed by the evidence which tend to show
the fair and reasonable market value of the property.

## Authority

> *[Iowa Development Co. v. Iowa State Highway Commission]{.underline},
> 252 Iowa 978, 108 N.W.2d 487 (1961)*

*[Ranck v. Cedar Rapids]{.underline}, 134 Iowa 563, 111 N.W. 1027
(1907)*

*[Iowa Code]{.underline} section 6B.21(as amended)*

**Comment**

> *Note: No specific factor of valuation should be included unless
> supported by the evidence.*

6/01

[]{#a25007 .anchor}**2500.7 Comparables**. Evidence has been admitted of
sales of other real estate. To the extent the other land is similar or
comparable in character to the \[owner\]\[contract
purchaser\]\[tenant\]'s property, the sale prices may be considered as
evidence of the value of the \[owner\]\[contract purchaser\]
\[tenant\]'s property.

"Similar" and "comparable" do not mean identical. They mean having a
resemblance. Parcels of land may be similar although they possess
certain differences. The size, use, location and nature of the parcels
of land, and the time of the sales are factors in considering similarity
or comparability.

##### Authority

> *[Belle v. Highway Commission]{.underline}, 256 Iowa 43, 126 N.W.2d
> 311, 313 (1964)*
>
> *[Redfield v. Highway Commission]{.underline}, 251 Iowa 332, 99 N.W.2d
> 413 (1960) and citations*

6/01

[]{#a25008 .anchor}**2500.8 Controlled Access.** The acquiring agency,
(name) has the authority to put in a controlled access highway.

The \[owner\]\[contract purchaser\]\[tenant\]s of the property next to
the controlled access highway are not entitled to get to their property
at any and all points between it and the highway. They are entitled only
to reasonable and convenient access to their property; however, if there
is a substantial interference with the right of access, the property
\[owner\] \[contract purchaser\]\[tenant\] adjoining the controlled
access highway is entitled to fair and just compensation.

In determining whether the \[owner\]\[contract purchaser\]\[tenant\] has
lost reasonable and convenient access to the property, you may consider
the following factors:

1.  The condition, situation, location and use of the property.

2.  Its normal access requirements in ordinary use.

3.  The location of any present access point or points available to the
    \[owner\]\[contract purchaser\]\[tenant\], and the extent to which
    the existing access point or points may be used by the \[owner\]
    \[contract purchaser\]\[tenant\] in entering and leaving the
    property.

4.  The nature and extent of restrictions to the access point or points
    on the property.

If you find a substantial interference with access to the
\[owner\]\[contract purchaser\]\[tenant\]'s property from
(highway/street) as it was before the condemnation \[or as relocated\],
this would be a factor in determining the value of the property after
condemnation.

## Authority

*[Iowa Code]{.underline} chapter 306A, Controlled Access Highways*

> *[Belle v. Iowa State Highway Commission]{.underline}, 256 Iowa 43,
> 126 N.W.2d 311, 314 (1964)*
>
> *[Lehman v. Highway Commission]{.underline}, 251 Iowa 77, 99 N.W.2d
> 404 (1959)*
>
> *[Wilson v. Highway Commission]{.underline}, 249 Iowa 994, 90 N.W.2d
> 161 (1958)*
>
> *[Iowa State Highway Commission v. Smith]{.underline}, 248 Iowa 869,
> 82 N.W.2d 755 (1957)*

**Comment**

> *Note: For the applicable rule where there was no pre-existing right
> of access,*
>
> *see [Lehman v. Highway Commission]{.underline}, supra; 43 I.L.R. 258,
> 267; 43 A.L.R.*
>
> *2d, 1072, 1079.*

6/01

[]{#a25009 .anchor}**2500.9 Costs - Attorney\'s Fees - Interest.** In
arriving at your verdict, you may not consider court costs, attorney\'s
fees, or interest on the award. These items are not elements of damages.
I will decide these issues.

[]{#a250010 .anchor}**2500.10 Measure Of Damages Re Leasehold.** The
tenant, (name), had a lease on the property. The lease was to run to
(date) and the tenant was operating a (business) on the leased property.
The tenant's interest has been condemned by the acquiring agency.

The measure of the tenant's damages is the fair and reasonable market
value of the unexpired term of the lease immediately before the
condemnation, taking into account the building, fixtures, and personal
property on the premises, less the future rent to be paid, and the
reasonable value of personal property removed by the tenant after the
date of the condemnation.

The following factors may be considered in determining value:

1.  The location of the premises, its surroundings and its
    accessibility.

2.  The use to which the premises has been put.

3.  Improvements to the premises.

4.  The nature, character, type and general construction of the building
    and fixtures located on the premises.

5.  The depreciation of the buildings, fixtures, and personal property
    since their construction or purchase.

6.  Any other pertinent facts disclosed by the evidence.

**Authority**

*[Iowa Code]{.underline} section 6B.21(as amended)*

> *[Estelle v. Iowa State Highway Commission]{.underline}, 254 Iowa
> 1238, 119 N.W.2d 900 (1963) In this opinion, the Court states:*
>
> *\"And where as here there is more than one tract under the same lease
> and separated by a highway, it is the use and operation of the land
> that determine whether damages should be assessed to the entire
> leasehold or to the part taken.\"*
>
> *[Des Moines Laundry v. City]{.underline}, 197 Iowa 1082, 198 N.W.486,
> 34 A.L.R. 1517 (1924)*

**Comment**

> *Note: No specific factors of valuation should be included unless
> supported by the*
>
> *evidence.*

6/01

[]{#a250011 .anchor}**2500.11 Verdict Instruction \[Partial Taking\].**
You will insert the amount you find to be the difference between the
fair and reasonable market value of the property before the taking on
(date) and the fair and reasonable market value of the
\[owner\]\[contract purchaser\]\[tenant\]'s remaining portion after the
taking on the attached verdict form.

[]{#a250012 .anchor}**2500.12 Separate Tracts Operated As One.** The
\[owner\]\[contract purchaser\]\[tenant\] claims the condemned property
was used with other property owned by (name), which is not being
condemned. This is denied by the acquiring agency.

You may consider the following factors in deciding if separate parcels
of land were used for one operation:

1.  The location of and the relation between the parcels of real estate.

2.  The kind and character of the improvements.

3.  The type of \[business/farming\] being carried on.

4.  The ownership of and the location of personal property \[farming
    equipment\] used.

5.  The length of time the use has been and would be in operation.

6.  Any other factors and circumstances shown by the evidence.

If you find that just before the condemnation, \[both\]\[all\] parcels
were \[used\]\[operated\] as a single \[business\]\[farming\] operation,
then you may consider this in determining the fair market value of the
condemned property.

**Authority**

> *[Crist v. Iowa State Highway Commission]{.underline}, 255 Iowa 615,
> 123 N.W.2d 424 (1963)*
>
> *[Stortenbecker v. Iowa Power and Light Company]{.underline}, 250 Iowa
> 1073, 96 N.W.2d 468 (1959)*
>
> *[Paulson v. State Highway Commission]{.underline}, 210 Iowa 651, 231
> N.W. 296 (1930)*

6/01

[]{#a250013 .anchor}**2500.13 Eminent Domain - Partial Taking - Highest
And Best Use - Not Disputed.** The most valuable use of the entire
parcel of land immediately before the taking was (describe).

The \[owner\]\[contract purchaser\]\[tenant\] claims factors connected
with the condemnation reduced the value of the \[owner\]\[contract
purchaser\]\[tenant\]'s remaining property by reducing its suitability
for its most valuable use.

You should consider all the circumstances which relate to the
suitability of the land for its most valuable use, both before and after
the condemnation. You should also consider evidence of any demand which
would probably have existed for the land if it had been developed for
its most valuable use at the time of the condemnation. This evidence is
to be considered only for the effect it has upon the market value at the
time of taking, not at some future time.

## Authority

> *[Dolezal v. City of Cedar Rapids]{.underline}, 209 N.W.2d 84, 88-89
> (Iowa 1973)*
>
> *[Jones v. Iowa State Highway Commission]{.underline}, 185 N.W.2d 74,
> 750 (Iowa 1971)*
>
> *[Bellew v. Iowa State Highway Commission]{.underline}, 171 N.W.2d
> 284, 288-289 (Iowa 1969)*
>
> *[Mohr v. Iowa State Highway Commission]{.underline}, 255 Iowa 711,
> 720-721, 124 N.W.2d 141 (1963)*
>
> *[Kaperonis v. Iowa State Highway Commission]{.underline}, 251 Iowa
> 39, 99 N.W.2d 284, 287 (1959)*

*[Constitution of Iowa]{.underline}, Article I, section 18*

6/01

[]{#a250014 .anchor}**2500.14 Eminent Domain - Highest And Best Use -
Partial Taking.** Your determination of fair and just compensation must
be based on the most valuable use for which the property was reasonably
suited immediately before and after the condemnation. The most valuable
use of the property means the most profitable legal use for which a
willing buyer would probably have purchased the property and paid the
highest price.

To determine the most valuable use of the property, you should consider
the suitability of the property for the use before the condemnation or
any other suitable use. This includes any legal use even though the
owner never used and may not intend to use the property in that way.

[]{#a250015 .anchor}**2500.15 Eminent Domain - Highest And Best Use -
Zoning Classification.** The most valuable legal use for which the
property was reasonably suited immediately before and after the
condemnation must be \[a use allowed by the zoning ordinance in effect
on (date of condemnation).\] \[a use permitted by a different zoning
classification if there was a reasonable probability that a change to
the different zoning classification would be made soon. The \[owner\]
\[contract purchaser\] \[tenant\] must prove there was, on (date), a
reasonable probability of a zoning change in the near future.\]

## Authority

> *[Dolezal v. City of Cedar Rapids]{.underline}, 209 N.W.2d 84, 88-89
> (Iowa 1973)*
>
> *[Jones v. Iowa State Highway Commission]{.underline}, 259 Iowa 616,
> 625-626, 144 N.W.2d 277, 282-283 (1966)*

**Comment**

> *Note: The parenthetical portion of this instruction should be added*
>
> *only if there was evidence of a reasonable probability of a zoning*
>
> *change in the near future. [Dolezal v. City of Cedar
> Rapids]{.underline}*
>
> *supra.*
>
> *The zoning classification can also be disregarded when there is*
>
> *substantial evidence demonstrating the illegality of a restrictive*
>
> *zoning ordinance and the zoning authority\'s failure to rezone*
>
> *while considering acquisition of the subject property.
> [Business]{.underline}*
>
> *[Ventures, Inc. v. Iowa City]{.underline}, 234 N.W.2d 376 (Iowa
> 1975).*

6/01

[]{#Ch2600 .anchor}**CHAPTER 2600**

# ESTATES - CLAIM FOR SERVICES

[2600.1](#a26001) Essentials For Recovery - Implied Contract As To
Compensation

[2600.2](#a26002) Essentials For Recovery - Claimant Not A Family Member

[2600.3](#a26003) Definition - Implied Contract

[2600.4](#a26004) Definition - Implied Contract As To Compensation

[2600.5](#a26005) Definition - Reasonable Value

[2600.6](#a26006) Special Defense of Gratuity

[2600.7](#a26007) Defense - Payment During Lifetime

[]{#a26001 .anchor}2600.1 Essentials For Recovery - Implied Contract As
To Compensation. \[Name of claimant\] must prove all of the following
propositions:

1\. \[Name of deceased\] employed \[name of claimant\] to provide
services \[and materials\].

2\. (Name of claimant) provided those services \[and materials\]

3\. \[Name of claimant\] and \[name of deceased\] had no agreement as to
the amount of pay for the services \[and materials\].

4\. The reasonable value of those services.

If \[name of claimant\] has failed to prove any of these propositions,
your verdict will be for the Estate. If \[name of claimant\] has proved
all of these propositions, your verdict will be for \[him\] \[her\] in
an amount equal to the reasonable value of those services \[unless the
Estate has proved the defense explained in Instruction No.
\_\_\_\_\_\_\_\].

[]{#a26002 .anchor}2600.2 Essentials For Recovery - Claimant Not A
Family Member. \[Name of claimant\] must prove all of the following
propositions:

1\. (Name of claimant) provided services \[and materials\] for \[name of
deceased\].

2, (Name of deceased) requested those services from the (name of
claimant) \[knew (name of claimant) was providing those services and
accepted them.\]

3\. The reasonable value of those services.

If (name of claimant) has failed to prove one or more of these
propositions, your verdict will be for the Estate. If (name of claimant)
has proved all of these propositions, your verdict will be for \[him\]
\[her\] in some amount \[unless the Estate has proved the defense
explained in Instruction No. \_\_\_\_\_\_\].

Authority

In re Estate of Martin, 261 Iowa 630, 155 N.W.2d 401, 406 (1968)

[]{#a26003 .anchor}2600.3 Definition - Implied Contract. The law implies
a promise to pay the reasonable value of services \[and materials\] a
person knowingly accepts from another.

Authority

In re Holta\'s Estate, 246 Iowa 527, 68 N.W.2d 314 (1955)

[]{#a26004 .anchor}2600.4 Definition - Implied Contract As To
Compensation. When a person employs someone to provide services \[and
materials\] without agreeing on the amount of pay, an agreement is
implied to pay the reasonable value of those services \[and materials\].

Authority

Olberding Construction Co. Inc. v. Ruden, 243 N.W.2d 872 (Iowa 1976); 60
A.L.R.3d 487

[]{#a26005 .anchor}2600.5 Definition - Reasonable Value. The
\"reasonable value\" of services is the ordinary charge for those
services when and where they were performed.

Authority

In re Estate of Stencil, 215 Iowa 1195, 248 N.W. 18, 19 (1933)

[]{#a26006 .anchor}2600.6 Special Defense Of Gratuity. As a defense, the
Estate claims the following:

a\. (Name of claimant) and (name of deceased) were members of the same
family.

b\. (Name of claimant)\'s services \[and materials\] were the type
usually exchanged between family members.

A \"family\" is a group of people \[living in the same household under
one management\] \[of common ancestry\]. If the Estate has proved both
of the above propositions, (name of claimant) cannot recover pay for
services \[and materials\] \[unless \[he\] \[she\] has proved all of the
propositions set forth in Instruction No. \_\_\_\_\_\_\_\] and at least
on the following propositions:

1\. Both (name of claimant) and (name of deceased) expected (name of
claimant) to be paid for the services \[and materials\]; or

2\. (Name of claimant)\'s services \[and materials\] provided for (name
of deceased) were greater in amount than those ordinarily exchanged
between persons in a like family relationship under similar
circumstances.

Authority

Patterson v. Patterson, 189 N.W.2d 601, 604 (Iowa 1971)

[]{#a26007 .anchor}2600.7 Defense - Payment During Lifetime. As a
defense the Estate alleges (name of deceased) paid for (name of
claimant)\'s services \[and materials\] before (name of deceased) died.
The Estate must prove this defense. In considering this defense, you may
take into account the amount of time which passed between (name of
claimant)\'s services and the (name of deceased)\'s death, as well as
the actions, statements and conduct of the (name of claimant) and (name
of deceased) and other circumstances in the evidence which would support
a finding that payment was or was not made by (name of deceased) during
\[his\] \[her\] lifetime.

Authority

Finley v. Thorne, 209 Iowa 343, 226 N.W. 103 (1929)

Comment

Note: Other relevant circumstances may be the decedent\'s ability to pay
during his or her lifetime; the decedent\'s business practices; the
parties\' geographical proximity; the lifetime opportunities for
payment; and the collectibility of the amount claimed. Finley v. Thorne,
209 Iowa 3431, 226 N.W. 103 (1929); Baker v. Davis, 212 Iowa 1249, 235
N.W. 749 (1931).

[]{#CH2700 .anchor}**CHAPTER 2700**

# WILL CONTEST

[2700.1](#a27001) Elements - Will Contest

[2700.2](#a27002) Testamentary Capacity

[2700.3](#a27003) Unsoundness Of Mind Before Or After Execution

[2700.4](#a27004) Undue Influence - Essentials For Recovery

[2700.5](#a27005) Definition Of Undue Influence - Person Charged With
Undue Influence Need Not Be Present

[2700.6](#a27006) Circumstances To Be Considered

[2700.7](#a27007) Definition of Confidential Relationship

[]{#a27001 .anchor}2700.1 Elements - Will Contest. The law presumes a
person \[has the mental ability to make a will\] \[is free from undue
influence when making a will\]. To overcome \[this\] \[these\]
presumption\[s\], the plaintiff must prove one of the following
proposition\[s\] were true at the time the will was made:

1\. (Testator) did not have the mental ability to make a will.

2\. (Testator\'s) will was the result of undue influence.

If the plaintiff has failed to prove \[either of\] the above
proposition\[s\] your verdict will be for the defendant. If the
plaintiff has proved \[one or more of\] the above proposition\[s\], your
verdict will be for plaintiff.

Authority

In re Estate of Adams, 234 N.W.2d 125 (Iowa 1975)

In re Estate of Huston, 238 Iowa 297, 27 N.W.2d 26 (1947)

Comment

Caveat: Delete any proposition not supported by the evidence.

[]{#a27002 .anchor}2700.2 Testamentary Capacity. A person has the mental
ability to make a will if \[he\] \[she\]:

1\. Knows a will is being made.

2\. Knows the kind and extent of \[his\] \[her\] property.

3\. Is able to identify and remember those persons \[he\] \[she\] would
naturally give \[his\] \[her\] property to.

4\. Knows how \[he\] \[she\] wants to distribute \[his\] \[her\]
property.

A will is valid if the person making the will meets the above tests,
even if \[his\] \[her\] mental or physical powers are impaired. A person
does not have to be able to make contracts or carry on business
generally. However, you may consider physical weakness or infirmity, the
rational nature of the distribution, along with any other evidence in
deciding if a person has the mental ability to make a will.

Authority

In re Estate of Adams, 234 N.W.2d 125 (Iowa 1975)

Drosos v. Drosos, 251 Iowa 777, 103 N.W.2d 167 (1960)

In re Estate of Kenny, 233 Iowa 600, 10 N.W.2d 73 (1943)

[]{#a27003 .anchor}2700.3 Unsoundness Of Mind Before Or After Execution.
Lack of mental ability to make a will must exist at the time the will
was made. You may consider evidence of (testator\'s) condition of mind
at other times if you decide such evidence throws some light on \[his\]
\[her\] mental ability at the time the will was made.

Authority

In re Estate of Gruis, 207 N.W.2d 571 (Iowa 1973)

[]{#a27004 .anchor}2700.4 Undue Influence - Essentials For Recovery. The
law presumes a person is free from undue influence. To overcome this
presumption, plaintiff must prove each of the four following
propositions:

1\. At the time the will was made (testator) was susceptible to undue
influence.

2\. \_\_\_\_\_\_\_\_\_ had the opportunity to exercise such influence
and carry out the wrongful purpose.

3\. \_\_\_\_\_\_\_\_\_ was inclined to influence (testator) unduly for
the purpose of getting an improper favor.

4\. The result was clearly brought about by undue influence.

If the plaintiff has failed to prove one or more of these propositions,
your verdict will be for the defendant. If plaintiff has proved all of
these propositions, your verdict will be for plaintiff.

Authority

In re Estate of Davenport, 346 N.W.2d 530 (Iowa 1984)

In re Estate of Houston, 238 Iowa 297, 27 N.W.2d 26 (1947)

[]{#a27005 .anchor}2700.5 Definition Of Undue Influence - Person Charged
with Undue Influence Need Not Be Present. Undue influence means a person
substitutes his or her intentions for those of the person making the
will. The will then expresses the purpose and intent of the person
exercising the influence, not those of the maker of the will. Undue
influence must be present at the very time the will is signed and must
be the controlling factor. The person charged with exercising undue
influence need not be personally present when the will was being made or
signed but the person\'s influence must have been actively working at
the time the will was being made and signed.

Authority

In re Estate of Cory, 169 N.W.2d 837 (Iowa 1969)

Walters v. Heaton, 223 Iowa 405, 271 N.W. 310 (1937)

Comment

Note: Where the person charged with exerting undue influence is a
spouse, consider prefacing 2700.5 with the following statement:

\"Undue influence means something more than and different from the
natural, wholesome, relationship between wife and husband concerning
their mutual interests. The influence growing out of such relation is
manifestly not ordinarily \'undue\' or improper.\"

Authority for Comment

Johnstone v. Johnstone, 190 N.W.2d 421, 426 (Iowa 1971)

Gillette v. Cable, 248 Iowa 7, 79 N.W.2d 195 (1956)

[]{#a27006 .anchor}2700.6 Circumstances To Be Considered. In deciding if
there was undue influence, you may consider the following:

1\. Dominance over the maker of the will.

2\. Whether the condition of the maker\'s mind was subject to such
dominance.

3\. Whether the distribution of the maker\'s property is unnatural,
unjust or unreasonable.

4\. The activity of the person charged with exercising the undue
influence and whether the person had the opportunity and frame of mind
to exercise undue influence. Activities may include suggestion, request
and persuasion short of controlling the will of the maker, but they do
not alone constitute undue influence. Consider such activities along
with any other evidence of undue influence.

5\. The intelligence or lack of intelligence of the maker of the will.

6\. Whether the maker of the will was physically or mentally weak.

7\. Whether the person charged with exercising undue influence was the
controlling party in a confidential relationship with the maker of the
will.

8\. Any other facts or circumstances shown by the evidence which may
have any bearing on the question.

No one of the above circumstances is more important than any other.

Authority

In re Estate of Davenport, 346 N.W.2d 530 (Iowa 1984)

In re Estate of Herm, 284 N.W.2d 191 (Iowa 1979)

Frazier v. State Central Savings Bank, 217 N.W.2d 238 (Iowa 1974)

Johnstone v. Johnstone, 190 N.W.2d 421 (Iowa 1971)

In re Estate of Willesen, 251 Iowa 1363, 105 N.W.2d 640 (1960)

In re Estate of Burrell, 251 Iowa 185, 100 N.W.2d 177 (1959)

O\'Brien v. Stoneman, 227 Iowa 389, 288 N.W.2d 447 (1939)

Comment

Caveat: Delete any circumstance not supported by the evidence.

Note: If a fiduciary relationship is involved, substitute the word
\"fiduciary\" for confidential in item 7.

[]{#a27007 .anchor}2700.7 Definition Of Confidential Relationship. A
confidential relationship is present when one person has gained the
complete confidence of another and purports to act or advise with only
the interest of the other party in mind.

Authority

Matter of Estate of Herm, 284 N.W.2d 191, 199 (Iowa 1979)

Burns v. Nemo, 252 Iowa 306, 105 N.W.2d 217, 220 (1960)

Merritt v. Easterly, 226 Iowa 564, 284 N.W. 397, 399 (1939)

Comment

Note: There is a distinction between a \"confidential\" and a
\"fiduciary relationship\". Burns v. Nemo and Merritt v. Easterly,
supra. If a \"fiduciary\" relationship is involved, it should be defined
as stated in these cases.

A confidential relationship may exist between a husband and wife where
one spouse is dominant and the other subservient or disabled. In re
Estate of Lundwall, 242 Iowa 430, 46 N.W.2d 535 (1951).

[]{#CH2800 .anchor}**CHAPTER 2800**

# FALSE ARREST

[2800.1](#a28001) False Arrest - Essentials For Recovery

[2800.2](#a28002) False Arrest - Definition Of Arrest

[2800.3](#a28003) False Arrest - Affirmative Defense - Good Faith And
Reasonable Belief

[2800.4](#a28004) False Arrest - Reasonable Belief

[]{#a28001 .anchor}2800.1 False Arrest - Essentials For Recovery.
\"False arrest\" is the unlawful restraint of an individual\'s personal
liberty or freedom of movement.

The plaintiff must prove all of the following propositions:

1\. The plaintiff was detained or restrained against \[his\] \[her\]
will.

2\. The detention or restraint was done by the defendant.

3\. The detention or restraint was a proximate cause of plaintiff\'s
damage.

4\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
(If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_\_\_\_\_).

Authority

Kraft v. City of Bettendorf, 359 N.W.2d 466 (Iowa 1984)

Children v. Burton, 331 N.W.2d 673 (Iowa 1983)

Comment

Note: Damages allowable for false arrest are set out in Kraft v. City of
Bettendorf, supra, at 470.

Caveat: These instructions assume the defendant is a peace officer and
not a private individual. If the defendant is not a peace officer, the
instructions will have to be tailored, taking into account sections
804.7 and 804.9 of the Iowa Code.

[]{#a28002 .anchor}2800.2 False Arrest - Definition Of Arrest.
\"Arrest\" means taking a person into custody. It includes restraint or
detention of the person or \[his\] \[her\] submission to custody.

Authority

Iowa Code section 804.5

[]{#a28003 .anchor}2800.3 False Arrest - Affirmative Defense - Good
Faith And Reasonable Belief. The defendant claims \[he\] \[she\] acted
in good faith and with a reasonable belief.

Defendant must prove both of the following propositions:

1\. The defendant believed in good faith that the person who was
arrested had committed a crime.

2\. The defendant\'s belief was reasonable.

If the defendant has failed to prove both of these propositions, the
defendant has not proved \[his\] \[her\] defense. If the defendant has
proved both of these propositions, the plaintiff cannot recover and your
verdict will be for the defendant.

Authority

Kraft v. City of Bettendorf, 359 N.W.2d 466 (Iowa 1984)

Comment

Note: Iowa Code section 804.7(5) includes domestic abuse as a \"crime\"
for the purpose of this instruction.

[]{#a28004 .anchor}2800.4 False Arrest - Reasonable Belief. A person\'s
belief is reasonable if it is based on reasonably trustworthy
information about the facts and circumstances which would allow a
reasonably careful person to believe a crime had been committed.

Whether an arrest is based on a reasonable belief is determined by the
circumstances existing and known to the defendant when the arrest was
made, and not later investigation of the facts or the outcome of later
criminal charges.

Authority

Sundholm v. City of Bettendorf, 389 N.W.2d 849 (Iowa 1986)

Children v. Burton, 331 N.W.2d 673 (Iowa 1983)

[]{#CH2900 .anchor}**CHAPTER 2900**

GOVERNMENTAL LIABILITY

# Municipal tort Liability

[2900.1](#a29001) Defects In Public Way - Essentials For Recovery

[2900.2](#a29002) Dangerous Condition - Defined

[2900.3](#a29003) Alternate Safe Route - Affirmative Defense

[2900.4](#a29004) Design And Construction Of Public Way

[2900.5](#a29005) Design And Construction Of Public Improvements

[2900.6](#a29006) Duty To Maintain

[2900.7](#a29007) Affirmative Defense - Policy Or Level Of Service

# State Tort Liability

[2910.1](#a29101) Snow Or Ice - Essentials For Recovery

[2910.2](#a29102) Parties - Equal Consideration

[2910.3](#a29103) Affirmative Defense - Policy Or Level Of Service

[2910.4](#a29104) Duty To Maintain

[2910.5](#a29105) Evidence

[]{#a29001 .anchor}2900.1 Defects In Public Way - Essentials For
Recovery. The plaintiff must prove all of the following propositions:

1\. A dangerous condition existed in the \[sidewalk\] \[street\]
\[alley\].

2\. a. Defendant had actual knowledge of the condition.

b\. The condition existed for such a period of time the defendant in the
exercise of ordinary care should have discovered it.

3\. Defendant had a reasonable opportunity to \[correct\] \[warn of\]
the condition and did not.

4\. The failure to \[correct\] \[warn of\] the condition was a proximate
cause of the plaintiff\'s damage.

5\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
(If an affirmative defense is submitted delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_.

Authority

Iowa Code section 364.12(2)

Abraham v. Sioux City, 218 Iowa 1068, 1070; 250 N.W. 461 (1933)

Greninger v. City of Des Moines, 264 N.W.2d 615 (1978)

Dennett v. City of Des Moines, 347 N.W.2d 691 (Iowa App. 1984)

Comment

Note: While a private property owner owes a duty to repair or warn, a
municipality owes a duty to repair and warn. Ehlinger v. State, 237
N.W.2d 784, 789 (Iowa 1976); Koehler v. State, 263 N.W.2d 760, 764 (Iowa
1978).

[]{#a29002 .anchor}

2900.2 Dangerous Condition - Defined. A condition is dangerous if its
character and location is such that a reasonably careful person should
anticipate it would likely cause injury to a person using the
\[sidewalk\] \[street\] \[alley\].

Authority

Thomas v. City of Fort Madison, 225 Iowa 822, 827, 281 N.W. 748 (1938)

Johnson v. City of Ames, 181 Iowa 65, 75, 162 N.W. 858 (1917)

[]{#a29003 .anchor}2900.3 Alternate Safe Route - Affirmative Defense.
The defendant claims the plaintiff was at fault by failing to take an
alternate safe route.

The defendant must prove each of the following propositions:

1\. Plaintiff knew of the dangerous condition.

2\. Plaintiff knew an alternate safe route was available.

3\. Plaintiff failed to take an alternate safe route.

4\. Plaintiff\'s fault was a proximate cause of the plaintiff\'s damage.

If the defendant has failed to prove any of these propositions, the
defendant has not proved \[his\] \[her\] defense. If the defendant has
proved all of these propositions, then you will assign a percentage of
fault against the plaintiff and include the plaintiff\'s fault in the
total percentage of fault found by you in answering the special
verdicts.

Authority

Iowa Code section 613A.3

Comment

Caveat: No appeal court has yet decided whether the failure to take an
alternate safe route is a complete bar to recovery or a matter of
comparative fault.

[]{#a29004 .anchor}2900.4 Design And Construction Of Public Way. The
plaintiff must prove all of the following propositions:

1\. The defendant \[designed\] \[made specifications regarding\]
\[adopted a design regarding\] \[adopted specifications regarding\]
\[constructed\] \[reconstructed\] a \[street\] \[highway\] \[road\].

2\. The \[design\] \[specification\] \[construction\] \[reconstruction\]
was not according to a generally recognized engineering or safety
standard, criteria or design theory existing at the time of the
\[construction\] \[reconstruction\].

3\. The defendant was negligent in failing to comply with a generally
recognized engineering or safety standard, criteria or design theory
existing at the time of the \[construction\] \[reconstruction\].

4\. The negligence was a proximate cause of damage to the plaintiff.

5\. The nature and extent of the damages.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_.\]

Authority

Iowa Code section 25A.14 (8)

Iowa Code section 613A.4 (7)

Connolly v. Dallas County, 465 N.W.2d 875, 877 n.3 (Iowa 1991)

[]{#a29005 .anchor}2900.5 Design And Construction Of Public
Improvements. The plaintiff must prove all of the following
propositions:

1\. The defendant \[designed\] \[made specifications regarding\]
\[adopted a design regarding\] \[adopted specifications regarding\]
\[constructed\] \[reconstructed\] (describe public improvement).

2\. The \[design\] \[specification\] \[constructed\] \[reconstructed\]
was not according to a generally recognized engineering or safety
standard, criteria or design theory existing at the time of the
\[construction\] \[reconstruction\].

3\. The defendant was negligent in failing to comply with a generally
recognized engineering or safety standard, criteria or design theory
existing at the time of the \[construction\] \[reconstruction\].

4\. The negligence was a proximate cause of damage to the plaintiff.

5\. The nature and extent of the damages.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.\]

Authority

Iowa Code section 25A.14 (9)

Iowa Code section 613.A4 (8)

Connolly v. Dallas County, 465 N.W.2d 875, 877 n.3 (Iowa 1991)

Comment

Caveat: This instruction was drafted solely for use in state of the art
municipal and state tort cases. If other specifications of negligence
are submitted, this instruction must be carefully tailored to the
specific facts.

[]{#a29006 .anchor}2900.6 Duty To Maintain. Once a (regulatory device\*)
has been placed, created or installed, the municipality has a duty to
use ordinary care to maintain it.

A violation of this duty is negligence.

\*Insert the particular traffic control device involved.

Authority

Iowa Code section 364.12(2)

Iowa Code section 668.10(1)

Comment

Note: Iowa Code section 668.10(1) states the State of Iowa and
municipalities shall not be found at fault for failure to place, erect,
or install a stop sign, traffic control device, or other regulatory
sign. But see Phillips v. City of Waukee, 467 N.W.2d 218, 220 (Iowa
1991) and Hershberger v. Buena Vista County, 391 N.W.2d 217 (Iowa 1986)

[]{#a29007 .anchor}2900.7 Affirmative Defense - Policy Or Level Of
Service. If the municipality proves it has complied with its policy or
level of service for snow and ice removal, or placing sand, salt or
other abrasive material on its highways, roads or streets, your verdict
will be for the municipality \[on this issue\*\].

\*Use the bracketed language if there are other issues submitted to the
jury.

Authority

Iowa Code section 364.12(2)

Iowa Code section 668.10(2)

Comment

Note: The statute does not state whether the policy or level of service
can be challenged. The committee takes no position on this matter.

[]{#a29101 .anchor}2910.1 Snow Or Ice - Essentials For Recovery. The
plaintiff must prove all of the following propositions:

1\. At the time of the accident there was an accumulation of snow or ice
on the road where the accident occurred.

2\. The State of Iowa was negligent in one or more of the following
ways:

a\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

b\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

c\.
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

3\. The State\'s negligence was a proximate cause of the plaintiff\'s
damage.

4\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
(If an affirmative defense is submitted delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_.)

Authority

Iowa Code section 25A.4

Rinkleff v. Knox, 375 N.W.2d 262 (Iowa 1985)

Bauman v. City of Waverly, 164 N.W.2d 840 (Iowa 1969)

[]{#a29102 .anchor}

2910.2 Parties - Equal Consideration. The plaintiff and the State of
Iowa have equal rights in court. This means you are to decide this case
as though it were a case between two individuals.

Authority

Iowa Code section 25A.4

[]{#a29103 .anchor}2910.3 Affirmative Defense - Policy Or Level Of
Service. If the State of Iowa proves it has complied with its policy or
level of service for snow and ice removal, or placing sand, salt, or
other abrasive material on its highways, roads or streets, your verdict
will be for the state \[on this issue\*\].

\*Use the bracketed language if there are other issues submitted to the
jury.

Authority

Iowa Code section 668.10(2)

Comment

Note: The statute does not state whether the policy or level of service
can be challenged. The committee takes no position on this matter.

[]{#a29104 .anchor}2910.4 Duty To Maintain. Once a \*\[regulatory
device\] \[stop sign\] \[traffic control device\] has been placed,
created or installed, the State has a duty to use ordinary care to
maintain it.

A violation of this law is negligence.

\*Insert the particular traffic control device involved.

Authority

Gipson v. State, 419 N.W.2d 369 (Iowa 1988)

Manual on Uniform Traffic Control Devices, section 2A-30 and 4B-23

Comment

Note: Iowa Code section 668.10(1) states the State of Iowa and
municipalities shall not be found at fault for failure to place, erect,
or install a stop sign, traffic control device, or other regulatory
sign.

[]{#a29105 .anchor}2910.5 Evidence. Evidence concerning standards,
policies and procedures for the maintenance of traffic signs and control
signals contained in the Manual on Uniform Traffic Control Devices has
been introduced. If the State has failed to comply with the Manual, then
that is evidence the State was negligent. If, on the other hand, the
State followed the Manual, then that is evidence the State was not
negligent.

Authority

Iowa Code section 321.252

Gipson v. State, 419 N.W.2d 369 (Iowa 1988)

# CHAPTER 3000

## 42 U.S.C. SECTION 1983 ACTIONS

[3000.1](#a30001) 42 U.S.C. Section 1983 Actions - Essentials For
Recovery

[3000.2](#a30002) 42 U.S.C. Section 1983 Actions - Color Of State Law

[]{#a30001 .anchor}3000.1 42 U.S.C. Section 1983 Actions - Essentials
For Recovery. Plaintiff must prove all of the following propositions:

1\. The defendant deprived the plaintiff of a right protected by the
\[Constitution\] \[law\] of the United States by:

\[Set out alleged deprivation. For example, \"arresting the plaintiff
without probable cause,\" \"subjecting the plaintiff to an unreasonable
search\" or \"using excessive force against the plaintiff in the course
of arrest.\"\]

2\. The defendant acted under color of state law.

3\. The defendant\'s conduct was a proximate cause of the plaintiff\'s
damage.

4\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
(If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_.)

Authority

Christenson v. Ramaeker, 366 N.W.2d 905 (Iowa 1985)

Comment

Note: The first proposition should be tailored to set out the alleged
deprivation.

[]{#a30002 .anchor}3000.2 42 U.S.C. Section 1983 Actions - Color Of
State Law. For acts of an official to be done \"under color of state
law,\" the acts must be done while the official is acting or purporting
or pretending to act in the performance of official duty.

The term \"under color of state law\" includes acts done under authority
of \[state law\] \[county regulation\] \[municipal ordinance\] \[any
governmental custom or policy\].

Authority

Young v. Cedar County Work Activity Center, Inc., 418 N.W.2d 844 (Iowa
1987)

Greene v. Friend of Court, Polk County, 406 N.W.2d 433 (Iowa 1987)

[]{#CH3100 .anchor}**CHAPTER 3100**

EMPLOYMENT RIGHTS

# Tortious Discharge

[3100.1](#a31001) Tortious Discharge Against Public Policy - Essentials
For Recovery

[3100.2](#a31002) Tortious Discharge Against Public Policy - Employee At
Will

[3100.3](#a31003) Tortious Discharge Against Public Policy - Determining
Factor

# Employment Contracts

[3110.1](#a31101) Contract of Employment For Definite Time - Essentials
For Recovery

[3110.2](#a31102) Contract Of Permanent Employment - Essentials For
Recovery

[3110.3](#a31103) Employment Contract - Essentials For Recovery

[3110.4](#a31104) Terms Of Contract - Definite Time - Permanent
Employment

[3110.5](#a31105) Employment Contract - Employee\'s Manual

[3110.6](#a31106) Permanent Employment - Additional Consideration

[3110.7](#a31107) Affirmative Defense - Discharge For Cause

[]{#a31001 .anchor}3100.1 Tortious Discharge Against Public Policy -
Essentials For Recovery. Plaintiff must prove all of the following
propositions:

1\. (Plaintiff) was an employee of (defendant).

2\. (Defendant) discharged (plaintiff) from employment.

3\. (Plaintiff)\'s (describe act protected by public policy, i.e.,
filing of worker\'s compensation claim, etc.) was the determining factor
in (defendant)\'s decision to discharge (plaintiff).

4\. The discharge was a proximate cause of damage to (plaintiff).

5\. The nature and extent of the damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_\_.\]

Authority

Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682 (Iowa 1990)

Springer v. Weeks and Leo Company, Inc., 429 N.W.2d 558 (Iowa 1988)

Comment

Note: This cause of action applies to all employees, including employees
at will. See Conaway v. Webster City Products Co., 431 N.W.2d 795 (Iowa
1988) and Springer v. Weeks and Leo Company, Inc., 429 N.W.2d 558 (Iowa
1988).

The Court must decide as a matter of law whether a particular act is
protected by public policy.

[]{#a31002 .anchor}3100.2 Tortious Discharge Against Public Policy -
Employee At Will. There is evidence that plaintiff was an employee at
will. An employee at will may be terminated at any time for any reason,
except if it is contrary to the public policy of this state. It is
against the public policy of the state to discharge an employee for
(describe act protected by public policy, i.e., filing of a worker\'s
compensation claim, etc.)

Authority

Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682 (Iowa 1990)

[]{#a31003 .anchor}3100.3 Tortious Discharge Against Public Policy -
Determining Factor. A determining factor need not be the main reason
behind the decision. It need only be the reason which tips the scales
decisively one way or the other.

Authority

Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682 (Iowa 1990)

[]{#a31101 .anchor}3110.1 Contract Of Employment For Definite Time -
Essentials For Recovery. Plaintiff must prove all of the following
propositions:

1\. The plaintiff had a contract of employment with the defendant.

2\. The terms of the contract provided the plaintiff with employment for
a definite period of time.

3\. The defendant discharged the plaintiff during that period.

4\. The amount of any damage defendant has caused.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_, as explained in Instruction No.
\_\_\_\_\_\_\_\_\_\_.\]

Authority

Wolfe v. Graether, 389 N.W.2d 643 (Iowa 1986)

Albert v. Davenport Osteopathic Hospital, 385 N.W.2d 237 (Iowa 1986)

[]{#a31102 .anchor}3110.2 Contract Of Permanent Employment - Essentials
For Recovery. The plaintiff must prove all of the following
propositions:

1\. The plaintiff had a contract of employment with the defendant.

2\. The terms of the contract provided the plaintiff with permanent
employment.

3\. The plaintiff provided additional consideration for permanent
employment.

4\. The defendant discharged the plaintiff.

5\. The amount of any damage defendant has caused.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_\_.\]

Authority

Wolfe v. Graether, 389 N.W.2d 643 (Iowa 1986)

Albert v. Davenport Osteopathic Hospital, 385 N.W.2d 237 (Iowa 1986)

**3110.3 Employment Contract - Essentials For Recovery.** The plaintiff

must prove all of the following propositions:

1\. The plaintiff had a contract of employment with the defendant.

2\. The defendant \[discharged\]\[describe action against\] the
plaintiff in

violation of the contract.

3\. The amount of any damage defendant has caused.

If the plaintiff has failed to prove any of these propositions, the
plaintiff

is not entitled to damages. If the plaintiff has proved all of these
propositions, the plaintiff is entitled to damages in some amount. \[If
an

affirmative defense is submitted, delete the second sentence and insert
the

following: If the plaintiff has proved all of these propositions, then
you will

consider the defense of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, as
explained in Instruction

No.\_\_\_\_\_\_\_\_\_ .\]

**Authority**

*[Schoff v. Combined Ins. Co. of Amer.]{.underline}, 604 N.W.2d 43 (Iowa
1999).*

*[Young v. Cedar County Work Activity Center, Inc]{.underline}., 418
N.W.2d 844 (Iowa 1987).*

**Comment**

*Note: For a definition of contract, see Iowa Civil Jury Instruction
1200.3; for instructions concerning the elements of contract that may be
in dispute, see Iowa Civil Jury Instructions chapter 2400.*

[]{#a31104 .anchor}3110.4 Terms Of Contract - Definite Time - Permanent
Employment. The terms of the parties\' contract provided \[employment
for a definite time\] \[permanent employment\] if the plaintiff has
proved either:

1\. Both parties had that intention; or

2\. All of the following propositions:

a\. The plaintiff understood \[he\] \[she\] was employed \[permanently\]
\[for a definite period of time\].

b\. The plaintiff\'s understanding was reasonable.

c\. The defendant knew or reasonably should have known the plaintiff had
that understanding.

Authority

Wolfe v. Graether, 389 N.W.2d 643 (Iowa 1986)

[]{#a31105 .anchor}3110.5 Employment Contract - Employee\'s Manual. The
personnel policies of the employee\'s manual are part of an employment
contract, if the plaintiff has proved either:

1\. The plaintiff and defendant intended the policies in the manual to
be a part of a contract of employment; or

2\. All of the following propositions:

a\. The manual was communicated to the plaintiff.

b\. The plaintiff believed the policies in the manual to be part of a
contract of employment.

c\. The plaintiff\'s belief was reasonable and the defendant knew or
reasonably should have known the plaintiff had that belief.

Authority

Fogel v. Trustees of Iowa College, 446 N.W.2d 451 (Iowa 1989)

McBride v. City of Sioux City, 444 N.W.2d 85 (Iowa 1989)

Cannon v. National By-Products, Inc., 422 N.W.2d 638 (Iowa 1988)

Young v. Cedar County work Activity Center, Inc., 418 N.W.2d 844 (Iowa
1987)

Comment

Note: The terms of a handbook cannot constitute a contract of employment
unless they are sufficiently definite as to constitute an offer. Fogel
v. Trustees of Iowa College, 446 N.W. 2d 451, 456 (Iowa 1989). The court
must, as a matter of law, decide whether the terms are sufficiently
definite to constitute an offer. Id. In addition, the evidence must show
the employee continued working after receiving the manual to provide
consideration. Id. This, too, would ordinarily be a question of law.

[]{#a31106 .anchor}3110.6 Permanent Employment - Additional
Consideration. \"Additional consideration\" is some benefit to the
defendant or detriment to the plaintiff beyond the plaintiff\'s promise
to perform services as an employee.

Authority

Wolfe v. Graether, 389 N.W.2d 643 (Iowa 1986)

Albert v. Davenport Osteopathic Hospital 385 N.W.2d 237 (Iowa 1986)

[]{#a31107 .anchor}3110.7 Affirmative Defense - Discharge For Cause. The
defendant claims \[he\] \[she\] \[it\] had good cause for discharging
the plaintiff because (describe acts of omissions constituting the
alleged cause). If the defendant has proved good cause for the
discharge, the plaintiff cannot recover damages. If the defendant has
failed to prove good cause for the discharge, then you shall decide if
the plaintiff is entitled to recover damages under the other
instructions.

Authority

Wolfe v. Graether, 389 N.W.2d 643 (Iowa 1986)

Comment

Note: \"Good cause\" may be based upon the employee\'s failure to
perform in accordance with the employment contract or a reason for
discharge expressly stated in the contract. It may also arise from
grounds not expressly stated in the contract.

[]{#CH3200 .anchor}**CHAPTER 3200**

# FIDUCIARY LIABILITY

[3200.1](#a32001) Breach Of Fiduciary Duty - Essentials For Recovery

[3200.2](#a32002) Fiduciary Relationship - Definition

[3200.3](#a32003) Fiduciary Relationship - Duty Of Disclosure

[]{#a32001 .anchor}3200.1 Breach Of Fiduciary Duty - Essentials For
Recovery. The plaintiff must prove the following propositions:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_, 19 \_\_\_\_, a
fiduciary relationship existed between the plaintiff and the defendant.

2\. The defendant breached a fiduciary duty.

3\. The breach of the fiduciary duty was a proximate cause of damage to
the plaintiff.

4\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff cannot recover damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to recover damages in some
amount.

Authority

Kurth v. Van Horn, 380 N.W.2d 693 (Iowa 1986)

Restatement (Second) of Torts, section 874

[]{#a32002 .anchor}3200.2 Fiduciary Relationship - Definition.
Concerning proposition no. 1 of Instruction No. \_\_\_\_\_\_, a
fiduciary relationship is a relationship of trust and confidence on a
subject between two persons. One of the persons is under a duty to act
for or give advice to the other on that subject. Confidence is placed on
one side, and domination and influence result on the other.

Circumstances that may indicate the existence of a fiduciary
relationship include the acting of one person for another, the having
and exercising of influence over one person by another, the placing of
confidence by one person in another, the dominance of one person by
another, the inequality of the parties, and the dependence of one person
upon another. None of these circumstances is more important than
another. It is for you to determine from the evidence whether a
fiduciary relationship existed between the parties.

Authority

Kendall/Hunt Publishing Company v. Rowe, 424 N.W.2d 235 (Iowa 1988)

Kurth v. Van Horn, 380 N.W.2d 693 (Iowa 1986)

Comment

Note: If the relationship is between a bank and bank customer, the
following paragraph should be added to this instruction: A fiduciary
relationship does not arise solely from a \[bank depositor\]
\[bank-borrower\] relationship. Kurth v. Van Horn, 380 N.W.2d 693 (Iowa
1986)

[]{#a32003 .anchor}3200.3 Fiduciary Relationship - Duty Of Disclosure.
Concerning proposition no. 2 of Instruction No. \_\_\_\_\_\_, a
fiduciary has a duty to disclose all material facts in dealing with the
other party to permit the other party to make an intelligent, knowing
decision in such dealings. A fact is material if a reasonable person
would consider it to be important in making a decision. A failure to
perform the duty is a breach of fiduciary duty.

Authority

Sinnard v. Roach, 414 N.W.2d 100 (Iowa 1987)

Kurth v. Van Horn, 380 N.W.2d 693 (Iowa 1986)

[]{#CH3300 .anchor}**CHAPTER 3300**

# CORPORATE SHAREHOLDER, OFFICER AND DIRECTOR LIABILITY

[3300.1](#a33001) Piercing The Corporate Veil - Essentials For Recovery

[3300.2](#a33002) Piercing The Corporate Veil - Definition

[]{#a33001 .anchor}3300.1 Piercing The Corporate Veil - Essentials For
Recovery. The plaintiff must prove all of the following propositions:

1\. The defendant is a shareholder of (name of corporation).

2\. (Name of corporation) is indebted to the plaintiff.

3\. The defendant has abused the corporate privilege.

4\. The amount owed by the corporation to the plaintiff.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

Authority

Briggs Transportation Co., Inc. v. Starr Sales Co., Inc., 262 N.W.2d 805
(Iowa 1978)

Boyd v. Boyd & Boyd, Inc., 386 N.W.2d 540 (Iowa App. 1986)

Fazio v. Brotman, 371 N.W.2D 842 (Iowa App. (1985)

[]{#a33002 .anchor}3300.2 Piercing The Corporate Veil - Definition.
Corporate privilege is the right of a shareholder of a corporation to
avoid personal liability for the debts of the corporation. A shareholder
may be held personally liable for corporate debts only in exceptional
circumstances in which the shareholder abuses the privilege. An abuse
may be found when the corporation is a mere shell, or serves no
legitimate business purpose, or is used by the shareholder primarily as
a means to commit fraud or promote injustice. Factors that tend to
establish abuse of the corporate privilege include the following:

1\. The corporation is undercapitalized.

2\. The corporation lacks separate books.

3\. The corporation\'s finances are not kept separate from individual
finances or individual obligations are paid by the corporation.

4\. The corporation is used primarily to promote fraud or illegality.

5\. The corporate formalities are not followed.

6\. The corporation is a mere sham.

Authority

Briggs Transportation Co., Inc. v. Starr Sales Co., Inc., 262 N.W.2d 805
(Iowa 1978)

Boyd v. Boyd & Boyd, Inc., 386 N.W.2d 540 (Iowa App. 1986)

Fazio v. Brotman, 371 N.W.2d 842 (Iowa App. 1985)

Comment

Note: Use only those portions of the instruction supported by the
evidence.

# CHAPTER 3400

COMMERCIAL TORTS

## Misappropriations Of Trade Secrets

[3400.1](#a34001) Misappropriation Of Trade Secrets - Essentials For
Recovery

[3400.2](#a34002) Misappropriation Of Trade Secrets - Trade secrets -
Definition

[3400.3](#a34003) Misappropriation Of Trade secrets - Misappropriation -
Definition

[3400.4](#a34004) Misappropriation Of Trade Secrets - Improper Means -
Definition

## Unfair Competition

[3410.1](#a34101) Unfair Competition - Essentials For Recovery

[3410.2](#a34102) Unfair Competition - Representation - Definition

[]{#a34001 .anchor}3400.1 Misappropriation Of Trade Secrets - Essentials
For Recovery. The plaintiff must prove all of the following
propositions:

1\. The (set forth the formula, pattern, device, or compilation of
information) is a trade secret.

2\. The defendant misappropriated the trade secret.

3\. The misappropriation of the trade secret was a proximate cause of
damage to the plaintiff.

4\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff cannot recover damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to recover damages in some
amount. \[If an affirmative defense is submitted, delete the second
sentence and insert the following: If the plaintiff has proved all of
these propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_ , as explained in Instruction
No.\_\_\_\_\_\_\_.\]

Authority

Iowa Code Ch. 550 (1993)

Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220 (Iowa 1977)

[]{#a34002 .anchor}3400.2 Misappropriation Of Trade Secrets - Trade
Secrets - Definition. Concerning Proposition No. 1 of Instruction No.
(3400.1), a \"trade secret\" is any formula, pattern, compilation,
program, device, method, technique or process which

1\. Derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by, persons other than plaintiff; and

2\. Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

In determining whether \[set forth the formula, pattern, device or
compilation of information at issue\] is a \"trade secret,\" you may
consider the following factors:

\(a\) The extent to which the information is known outside of
plaintiff\'s business;

\(b\) the extent to which it is known by employees and others involved
in plaintiff\'s business;

\(c\) the extent of measures taken by plaintiff to guard the secrecy of
the information;

\(d\) the value of the information to plaintiff and to plaintiff\'s
competitors;

\(e\) the amount of effort or money expended by plaintiff in developing
the information;

\(f\) the ease or difficulty with which the information could be
properly acquired or duplicated by others.

Authority

Iowa Code section 550.2(4) (1993)

Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220 (Iowa 1977)

U.S. West Communications, Inc. v. Office of Consumer Advocate, 498
N.W.2d 711 (Iowa 1993)

[]{#a34003 .anchor}3400.3 Misappropriation Of Trade Secrets -
Misappropriation - Definition. Concerning Proposition No. 2 of
Instruction \[3400.1\], a trade secret is misappropriated if it is:

1\. Acquired by improper means or from a person known to the defendant
to have acquired it by improper means.

2\. Disclosed or used by a person who acquired it by improper means or
from a person known to have acquired it by improper means.

3\. Disclosed or used by a person who, at the time of disclosure or use,
knows that the trade secret is acquired under circumstances requiring
its secrecy to be maintained or its use limited.

4\. Disclosed or used by a person who at the time of disclosure or use
knows that the trade secret is derived from or through a person who
acquired it under circumstances requiring its secrecy to be maintained
or its use limited.

5\. Disclosed or used by a person who, before a material change in the
person\'s position, knows that the information is a trade secret and
that the trade secret has been acquired by accident or mistake.

Authority

Iowa Code section 550.2(3) (1993)

Note: Instruct only on the alternative specification which is applicable
under all of the evidence.

[]{#a34004 .anchor}3400.4 Misappropriation Of Trade Secrets - Improper
Means - Definition. \"Improper means\" include theft, bribery,
misrepresentation, breach of inducement of a breach of a duty to
maintain secrecy, or espionage, including espionage through an
electronic device.

Authority

Iowa Code section 550.2(1) (1993)

Note: Instruct only on the alternative that is applicable under the
evidence.

[]{#a34101 .anchor}3410.1 Unfair Competition - Essentials For Recovery.
The plaintiff must prove all of the following propositions:

1\. The defendant directly or indirectly represented that the
\[product\] marketed by defendant was the product of the plaintiff.

2\. The defendant did so with an intent to deceive consumers.

3\. Consumers were confused or were likely to be confused as to the
manufacturer of the \[product\] as a natural consequence of the
defendant\'s conduct.

4\. The defendant\'s conduct was a proximate cause of damage to the
plaintiff.

5\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff cannot recover damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_ , as explained in Instruction No.
\_\_\_\_\_\_\_.\]

Authority

Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220 (Iowa 1977)

Johnson Gas Appliance Co. v. Reliable Gas Products Co., 233 Iowa 641, 10
N.W.2d 23 (1943)

[]{#a34102 .anchor}3410.2 Unfair Competition - Representation -
Definition. Concerning Proposition No. 1 of Instruction No. \[3410.1\],
a representation exists when there is a similarity in the appearance of
the products or they perform the same functions and the defendant\'s
marketing portrays its own goods as the goods of the plaintiff.

Authority

Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220 (Iowa 1977)

Johnson Gas Appliance Co. v. Reliable Gas Products Co., 233 Iowa 641, 10
N.W.2d 23 (1943)

[]{#CH3500 .anchor}**CHAPTER 3500**

# CONSPIRACY

[3500.1](#a35001) Essentials For Recovery - Conspiracy.

[3500.2](#a35002) Conspiracy - Definition.

[3500.3](#a35003) Participation - Definition.

[3500.4](#a35004) Elements For Recovery - Aiding And Abetting.

[]{#a35001 .anchor}3500.1 Essentials For Recovery - Conspiracy. In order
to recover for the claim of conspiracy, the plaintiff must prove all of
the following propositions:

1\. (Name of co-conspirator) committed the wrong of (describe the
alleged wrong), as defined in Instruction No.\_\_\_\_\_\_\_.

2\. The defendant participated in a conspiracy with (name of
co-conspirator) to (describe the alleged wrong).

3\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_\_.\]

Authority

Countryman v. Mt. Pleasant Bank & Trust Co., 357 N.W.2d 599 (Iowa 1984)

Bump v. Stewart, Wimer & Bump, P.C., 336 N.W.2d 731 (Iowa 1983)

Southern N.Y. Ry. v. Ft. Dodge, Des Moines & Southern Ry., 316 N.W.2d
840, 844 (Iowa 1982)

Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220 (Iowa 1977)

Shannon v. Gaar, 233 Iowa 38, 6 N.W.2d 304 (1942)

Restatement (Second) of Torts, Section 876(a) (1979)

Note: The \"wrong\" must be a tortious act.

[]{#a35002 .anchor}3500.2 Conspiracy - Definition. A conspiracy is an
agreement of two or more persons to commit a wrong against another. The
agreement can be oral or written, informal or formal, and need not be
detailed. The agreement need not be expressed in words and may be
implied and understood to exist from the conduct itself. It may be
proved by direct or circumstantial evidence. Merely because two or more
persons associate with each other, or meet to discuss common interests
or goals does not, by itself, establish a conspiracy.

Authority

Tubbs v. United Central Bank, 451 N.W.2d 177 (Iowa 1990)

Adam v. Mt. Pleasant Bank & Trust Co., 387 N.W.2d 771 (Iowa 1986)

Countryman v. Mt. Pleasant Bank & Trust Co., 357 N.W.2d 599 (Iowa 1984)

Basic Chemicals v. Benson, 251 N.W.2d 220 (Iowa 1977)

[]{#a35003 .anchor}3500.3 Participation - Definition. A person
participates in a conspiracy when the person joins the agreement with
the intention to accomplish the wrongful act. A participant need not
know all the details of the agreement nor all of the other participants.
One who innocently furthers wrongful conduct by another does not
participate in a conspiracy.

Authority

Tubbs v. United Central Bank, 451 N.W.2d 177 (Iowa 1990)

Shannon v. Gaar, 233 Iowa 38, 6 N.W.2d 304 (1942)

Neff v. World Publishing Co., 349 F.2d 235 (8th Cir. 1965)

Restatement (Second) of Torts, Section 876 (1979)

Note: If there is evidence that the defendant withdrew from the
conspiracy prior to the tortious acts, this instruction may need to be
modified. See 16 Am. Jur. 2d, Section 56, Conspiracy, at 272 (1979).

[]{#a35004 .anchor}3500.4 Elements For Recovery - Aiding And Abetting.
In order to recover for the claim of aiding and abetting, the plaintiff
must prove the following propositions:

1\. (Name of wrongdoer) committed the wrong of (describe the alleged
wrong), as defined in Instruction No. \_\_\_\_\_\_\_.

2\. The defendant knew of (describe the alleged wrong) by (name of
wrongdoer).

3\. The defendant gave substantial assistance or encouragement to (name
of wrongdoer) in the commission of (describe the alleged wrong).

4\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions,
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all or most
propositions, you will consider the defense of \_\_\_\_\_\_\_\_\_\_\_\_
as explained in Instruction No. \_\_\_\_\_\_\_\_.\]

Authority

Tubbs v. United Central Bank, 451 N.W.2d 177 (Iowa 1990)

Restatement (Second) of Torts, Section 876(b) (1979)

[]{#CH3600 .anchor}**CHAPTER 3600**

# CONTROLLING CONDUCT OF THIRD PARTIES

[3600.1](#a36001) Essentials For Recovery - Controlling The Conduct Of
Third Parties - Duty To Licensees.

[3600.2](#a36002) Essential For Recovery - Controlling Conduct Of Third
Parties - Duty Of Parent To Control Conduct Of Child.

[]{#a36001 .anchor}3600.1 Essentials For Recovery - Controlling The
Conduct Of Third Parties - Duty To Licensees. The plaintiff must prove
all of the following propositions:

1\. The defendant was in possession of the premises.

2\. The defendant permitted (name persons involved) to use the premises.

3\. The defendant was present on the premises at the time the wrongful
actions occurred.

4\. The defendant knew or should have known that \[he\] \[she\] had the
ability to control (name persons involved).

5\. The defendant knew or should have known of the necessity and
opportunity for exercising such control.

6\. The defendant was negligent in one or more of the following ways
(set forth the particulars of the claim of negligence in failing to
protect the plaintiff).

7\. The defendant\'s negligence was a proximate cause of the
plaintiff\'s damage.

8\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of
\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No. \_\_\_\_\_\_\_.\]

Authority

Morgan v. Perlowski, 508 N.W.2d 724 (Iowa 1993)

Restatement of Torts (Second) Section 318 )

Comment

Caveat: The Iowa Supreme Court has expressly recognized this cause of
action only in favor of licensees, as opposed to invitees or
trespassers, and continues to recognize distinctions between the three
types of status. See Perlowski at 727. The Court has not determined
whether the same principles would apply in the case of invitees or
trespassers. Compare Fiala v. Rains, 519 N.W.2d 386 (Iowa 1994), which
holds that the duty owed to a special guest is less than that owed to a
business invitee.

Caveat: For cases involving special relations giving rise to a duty to
protect, see [Tenney v. Atlantic Associates]{.underline},

594 N.W.2d 11 (Iowa 1999).

[]{#a36002 .anchor}3600.2 Essentials For Recovery - Controlling The
Conduct Of Third Parties - Duty Of Parent To Control Conduct Of Child.
The plaintiff must prove all of the following propositions:

1\. The defendant was a parent of \[name of child\]:

2\. The defendant knew or should have known that \[he\] \[she\] had the
ability to control \[name of child\];

3\. The defendant knew or should have known of the necessity and
opportunity for exercising such control;

4\. The defendant was negligent in one or more of the following
particulars (set forth the particulars of the claim of negligence in
failing to protect the plaintiff).

5\. The defendant\'s negligence was a proximate cause of the
plaintiff\'s damage.

6\. The nature and extent of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.
\[If an affirmative defense is submitted, delete the second sentence and
insert the following: If the plaintiff has proved all of these
propositions, then you will consider the defense of as explained in
Instruction No. .\]

Authority

Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682 (Iowa 1993)

Restatement of Torts (Second) section 316

[]{#CH3700 .anchor}**CHAPTER 3700**

**CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATOR**

[3700.1](#a37001) Civil Commitment Of Sexually Violent Predator
-Essentials For Commitment

[3700.2](#a37002) Denial Of Allegation

[3700.3](#a37003) Sexually Violent Offenses - Definition

[3700.4](#a37004) Alternate Theories

[3700.5](#a37005) Mental Abnormality - Definition

[3700.6](#a37006) Predatory Acts - Definition

[3700.7](#a37007) Likely To Engage In Predatory Acts - Definition

[3700.8](#a37008) Reasonable Doubt

[3700.9](#a37009) Confinement Or Treatment

[3700.10](#a370010) Unanimous Verdict

[]{#a37001 .anchor}**3700.1 Civil Commitment Of Sexually Violent
Predator - Essentials For Commitment.** To prove the Respondent, (name),
is a sexually violent predator, the State must prove each of the
following elements beyond a reasonable doubt:

1\. The Respondent has been convicted of, or charged with,

a sexually violent offense.

2\. The Respondent suffers from a mental abnormality.

3\. That mental abnormality makes the Respondent likely

to engage in predatory acts constituting sexually violent

offenses if Respondent is not confined in a secure

facility.

If you find from the evidence that the State has proved each of these
elements, then the Respondent is a sexually violent predator. If,
however, the State has failed to prove any one of the elements, the
Respondent is not a sexually violent predator.

######### Authority

*[Iowa Code]{.underline} section 229A.2(8), 229A.7(3)*

[]{#a37002 .anchor}**3700.2 Denial of Allegation**. The Respondent
denies the State\'s allegation that \[he\] \[she\] is a sexually violent
predator. That denial puts in issue every element of the State\'s
allegation. Before the Respondent can be committed as a sexually violent
predator, the State must prove each element of the allegations beyond a
reasonable doubt.

######### Authority

*[Iowa Code]{.underline}* section 229A.7(3)

[]{#a37003 .anchor}**3700.3 Sexually Violent Offenses.** You have heard
evidence the Respondent \[\[was convicted of \[name of offense\], in the
\[court name\] on \[date\]\] \[and\] \[\[was charged with \[name of
offense\], in the \[court name\] on \[date\]\].

The offense(s) of \[name of offense\] \[\[and \[name of offense\]\]
\[is\] \[are\], by law, sexually violent offense\[s\].

######### Authority

*[Iowa Code]{.underline} section 229A.2(8)*

######### Comment

*Use only the conviction(s) or charges(s) relied upon in the*

*pleadings. [Iowa Code]{.underline} section 229A.2(9) requires proof of
only*

*one conviction or offense for a person to be determined to be a*

*sexually violent predator.*

[]{#a37004 .anchor}**3700.4 Alternate Theories.** The law does not
require jurors to agree which conviction\[s\] or charges\[s\] \[was\]
\[were\] proven by the evidence. The law only requires that each juror
agree that as least one sexually violent offense was committed by the
Respondent.

######### Authority

*See [State v. Williams]{.underline}, 285 N.W.2d 248 (Iowa 1979)*

*(criminal context)*

*See [State v. Bratthauer]{.underline}, 354 N.W.2d 774 (Iowa 1984)
(criminal*

*context)*

**Comment**

*Note: Do not use this instruction unless there are issues*

*regarding identity of the Respondent as the defendant in*

*the previous criminal case(s).*

[]{#a37005 .anchor}**3700.5 Mental Abnormality - Definition.** As used
in element 2 of Instruction No. \_\_\_\_\_, the term "mental
abnormality" means a congenital or acquired condition that impairs a
person's ability to control emotions or act voluntarily and which
predisposes that person to commit sexually violent offenses. This
condition must exist to a degree that causes the individual serious
difficulty in controlling \[his\] \[her\] behavior. The predisposition
must be so substantial as to constitute a menace to the health and
safety of others.

**Authority**

*[Iowa Code]{.underline} section 229A.2(3)*

[In Re Detention of Barnes]{.underline}, 658 N.W.2d 98 (Iowa 2003)

Rev. 9/03

[]{#a37006 .anchor}**3700.6 Predatory Acts - Definition**. As used in
element 3 of Instruction No. \_\_\_\_\_, the term \"predatory acts\"
means conduct directed toward a person with whom a relationship has been
established or promoted for the primary purpose of victimization.

**Authority**

*[Iowa Code]{.underline} section 229A.2(4)*

[]{#a37007 .anchor}**3700.7 Likely To Engage In Predatory Acts -
Definition**. As used in element 3 of Instruction no. \_\_\_\_\_, the
term \"likely to engage in predatory acts constituting sexually violent
offenses\" means that the person more likely than not will engage in
acts constituting sexually violent offenses. The word \"likely\" means
that a proposition is more probably true than not.

**Authority**

*[Iowa Code]{.underline} section 229A.2(2)*

*[In re Detention of Williams]{.underline}, 628 N.W.2d 447,458 (Iowa
2001)*

[]{#a37008 .anchor}**3700.8 Reasonable Doubt.** The burden is on the
State to prove that Respondent, (name), is a sexually violent predator
beyond a reasonable doubt. Whenever I instruct you the State must prove
something, it must be by evidence beyond a reasonable doubt. A
reasonable doubt is one that fairly and naturally arises from the
evidence or lack of evidence produced by the State.

If, after a full and fair consideration of all the evidence, you are
firmly convinced the Respondent is a sexually violent predator, then you
have no reasonable doubt, and your verdict should be that you find the
Respondent is a sexually violent predator.

If, after a full and fair consideration of all the evidence, you are not
firmly convinced the Respondent is a sexually violent predator, then you
have a reasonable doubt, and your verdict must be that you find the
Respondent is not a sexually violent predator.

[]{#a37009 .anchor}**3700.9 Confinement Or Treatment**. It is your duty
as jurors to determine if the Respondent, (name), is or is not a
sexually violent predator.

In the event of a verdict that the Respondent is a sexually violent
predator, you have nothing to do with confinement or treatment.

**Authority**

*[Iowa Code]{.underline} section 229A.7(3), (4)*

[]{#a370010 .anchor}**3700.10 Unanimous Verdict.** I am giving you two
verdict forms. In order to return a verdict on either Form I or Form II,
your decision must be unanimous. When you have agreed upon a verdict and
properly signed it, inform the Court Attendant.

**Authority**

*[Iowa Code]{.underline} section 229A.7(3)*

*In re [Detention of Williams]{.underline}, 628 N.W.2d 447 (Iowa 2001)*

12/01

[]{#Cross .anchor}**CROSS REFERENCE TABLE**

IOWA CIVIL JURY INSTRUCTIONS

USERS - PLEASE NOTE:

\*\*\* Indicates No Comparable Instruction

Table at end shows additional Iowa Uniform Civil Jury Instructions not
included in Iowa Civil Jury Instructions.

Iowa Civil Jury Iowa Uniform Civil

Instruction No. Jury Instruction No.

# Chapter 100 - General Instructions

100.1 1.4, 1.15

100.2 1.4, 1.6, 1.16

100.3 1.2, 1.11

100.4 1.2, 1.3, 1.6, 1.7, 1.17

100.5 New

100.6 New

100.7 New

100.8 New

100.9 1.5

100.10 1.14

100.11 1.8

100.12 1.9

100.13 1.10

100.14 1.10A

100.15 1.10B

100.16 1.10C

100.17 1.10D

100.18 New

100.19 New

\*\*\* 1.1

\*\*\* 1.13

\*\*\* 1.18

\*\*\* 1.19

\*\*\* 1.20

\*\*\* 1.23

# Chapter 200 - Damages

200.1 3.1

200.2 3.2

200.3 .3.3

200.4 3.4

200.5 3.5

200.6 3.7

200.7 New

200.8 3.8

200.9 3.8A

200.10 New

200.11 New

200.12 3.9

200.13 3.9

200.14 3.10, 3.11

200.15 3.10A

200.16 3.10B

200.17 3.10C, 3.10E

200.18 3.10C, 3.10E

200.19 3.10D, 3.10E, .3.10F

200.20 3.19E, 3.10F, 3.12

200.21 3.10D

200.22 3.8

200.23 3.7

200.24 3.9

200.25 New

200.26 3.11

200.27 3.11

200.28 3.11A

200.29 New

200.30 3.12

200.31 3.17

200.32 3.22

200.33 3.20

200.34 3.21

200.35 3.31

200.36 3.24

200.37 3.16A, 3.25

200.38 3.27

200.39 New

200.40 New

210.1 3.28

210.2 New

\*\*\* 3.19

\*\*\* 3.23

\*\*\* 3.26

\*\*\* 3.29

\*\*\* 3.32

# Chapter 300 - Verdicts

300.1 1.21

300.2 1.12

300.3 1.12

300.4 1.21A

300.5 1.21A, 2.42

300.6 1.21A

300.7 3.18

# Chapter 400 - Comparative Fault

400.1 17.1

400.2 2.40, 17.2

400.3 17.1

400.4 3.13, 3.14, 2.15, 3.16, 2.2E, 2.5, 2.10

400.5 17.3, 17.4

400.6 2.41, 17.5

400.7 3.30, 17.6

400.8 New

400.9 New

\*\*\* 17.7

# Chapter 500 - Independent Contractor - Liability For

500.1 25.1

500.2 25.3

500.3 25.4, 25.6

500.4 25.5

500.5 25.7

500.6 25.8

500.7 25.9

500.8 25.10

# Chapter 600 - Motor Vehicles - Rules of the Road

600.1 4.1

600.2 4.2

600.3 4.3

600.4 4.5

600.5 4.6

600.6 4.7

600.7 5.2

600.8 4.8

600.9 4.9

600.10 4.10

600.11 4.11

600.12 4.12

600.13 4.13

600.14 4.14

600.15 4.15

600.16 4.16

600.17 4.17

600.18 4.18

600.19 4.19

600.20 4.20

600.21 4.21

600.22 4.22

600.23 4.23

600.24 4.24

600.25 4.25

600.26 4.26

600.27 4.27

600.28 4.28

600.29 4.29

600.30 4.30

600.31 4.31

600.32 4.32

600.33 4.33

600.34 4.34

600.35 4.35

600.36 4.36

600.37 4.37

600.38 4.38

600.39 4.39

600.40 4.40

600.41 4.41

600.42 4.42

600.43 4.43

600.44 4.44

600.45 4.45

600.46 4.46

600.47 4.47, 4.49

600.48 4.48

600.49 4.50

600.50 4.51

600.51 4.52

600.52 4.53

600.53 New

600.54 4.54

600.55 4.55

600.56 4.56

600.57 4.57

600.58 4.58

600.59 4.59

600.60 4.60

600.61 4.61

600.62 4.62

600.63 4.63

600.64 4.64

600.65 4.65

600.66 Deleted

600.67 4.67

600.68 4.68

600.69 4.69

600.70 4.70

600.71 5.13

600.72 5.8, 5.9

600.73 5.10

600.74 5.7

600.75 5.4

600.76 5.17

600.77 4.71

600.78 4.72

600.79 4.73

600.80 4.74

600.81 4.75

600.82 4.76

600.83 4.77

600.84 4.78

600.85 4.79

600.86 4.80

600.87 4.81

600.88 4.82

600.89 4.83

600.90 4.84

600.91 4.85

600.92 4.86, 4.87

600.93 4.88

600.94 4.89

600.95 4.90

600.96 4.91

600.97 4.91A

600.98 4.92

600.99 4.93

600.100 New

\*\*\* 4.4

\*\*\* 4.94

**Chapter 700 - Negligence - Proximate Cause - Co-Employee-Employer
Liability - Vicarious Liability - Sidewalk Liability**

# Negligence - Proximate Cause

700.1 2.18, 5.14, 2.1A, 2.13, 2.14

700.2 2.1

700.3 2.6, 17.7

700.4 2.7

700.5 5.12

700.6 2.15

700.7 1.22

700.8 New

700.9 New

\*\*\* 2.1A

\*\*\* 2.2D

\*\*\* 2.7A

\*\*\* 2.7B

\*\*\* 2.7C

\*\*\* 2.8

\*\*\* 2.8A

\*\*\* 2.9

\*\*\* 2.13

\*\*\* 2.14

\*\*\* 2.19

# Co-Employee Liability

710.1 31.2

710.2 New

710.3 31.1

# Employer-Employee Liability

720.1 New

720.2 New

720.3 New

# Vicarious Liability

730.1 New

730.2 New

730.3 25.2

730.4 New

# Sidewalk Liability

740.1 New

740.2 New

740.3 New

# Chapter 800 - Misrepresentation

# Negligent Misrepresentation

800.1 27.1

800.2 27.2

800.3 27.3

800.4 27.4

800.5 27.5

800.6 27.6

800.7 27.7

800.8 27.9

\*\*\* 27.8

\*\*\* 27.10

# Fraudulent Misrepresentation

810.1 26.1, 26.2

810.2 26.3

810.3 26.4

810.4 26.5

810.5 26.6

810.6 26.7, 26.8

810.7 26.9

810.8 26.12, 26.13, 26.14

810.9 26.11

\*\*\* 26.10

\*\*\* 26.15

\*\*\* 26.16

# Chapter 900 - Premises Liability

900.1 22.3

900.2 22.7

900.3 22.5

900.4 22.1

\*\*\* 22.2

\*\*\* 22.4

\*\*\* 22.6

**Chapter 1000 - Products Liability**

1000.1 24.1, 24.10

1000.2 24.2

1000.3 24.3

1000.4 24.4

1000.5 24.5

1000.6 24.6

1000.7 24.7

1000.8 24.8

1000.9 24.9

1000.10 New

# Chapter 1100 - Warranty

1100.1 9.4

1100.2 9.1

1100.3 9.2

1100.4 9.3

1100.5 9.5

1100.6 9.6

1100.7 9.7

1100.8 New

1100.9 9.9

1100.10 9.10

1100.11 9.11

1100.12 9.12

1100.13 9.13

\*\*\* 9.14

# Chapter 1200 - Business Relations - Interference

1200.1 28.2

1200.2 28.7, 28.8

1200.3 28.4

1200.4 28.3

1200.5 New

1200.6 28.1, 28.5

1200.7 28.9

1200.8 29.10

\*\*\* 28.6

\*\*\* 28.11

\*\*\* 28.12

\*\*\* 28.13

\*\*\* 28.14

\*\*\* 28.15

\*\*\* 28.16

\*\*\* 28.17

\*\*\* 28.18

\*\*\* 28.19

\*\*\* 28.20

\*\*\* 28.21

# Chapter 1300 - Dram Shop Liability

1300.1 16.1, 16.2

1300.2 16.3

1300.3 16.4

1300.4 16.5

1300.5 16.6

1300.6 16.7

# Chapter 1400 - Insurer - Excess Liability

# Excess Liability

1400.1 23.1, 23.3

1400.2 23.2

\*\*\* 23.4

# Insurer Liability

1410.1 New

**Chapter 1500 - Malpractice - Legal**

1500.1 20.3

1500.2 20.4

1500.3 20.2

1500.4 20.1, 20.7

1500.5 20.5, 20.8

\*\*\* 20.9

\*\*\* 20.10

# Chapter 1600 - Malpractice - Medical

1600.1 2.18, 13.1

1600.2 13.2

1600.3 13.3

1600.4 13.4

1600.5 13.5

1600.6 13.6

1600.7 13.7

1600.8 13.8

1600.9 5.12, 13.9

1600.10 13.10

1600.11 New

1600.12 13.11, 13.12

1600.13 13.13

1600.14 13.14

1600.15 13.15

1600.16 13.16

1600.17 New

# Chapter 1700 - Railroad Crossings

1700.1 21.1

1700.2 21.6

1700.3 21.2

1700.4 21.5

1700.5 21.4

1700.6 21.7

1700.7 21.9

\*\*\* 21.8

# Chapter 1800 - Abuse of Process

1800.1 35.2

1800.2 35.1

1800.3 35.3

1800.4 35.4

1800.5 New

# Chapter 1900 - Assault and Battery

1900.1 33.2

1900.2 33.1

1900.3 33.5

1900.4 33.4

1900.5 33.7

\*\*\* 33.6

\*\*\* 33.8

# Chapter 2000 - Emotional Distress - Intentional Infliction

2000.1 30.2

2000.2 30.1, 30.3

2000.3 30.4, 30.5

2000.4 30.6

# Chapter 2100 - Libel Per Se and Slander Per Se

2100.1 New

2100.2 New

2100.3 New

2100.4 New

2100.5 New

2100.6 New

2100.7 New

\*\*\* 10.1

\*\*\* 10.2

\*\*\* 10.3

\*\*\* 10.4

\*\*\* 10.5

\*\*\* 10.6

\*\*\* 10.7

**Chapter 2200 - Malicious Prosecution**

2200.1 18.1, 18.2, 34.1

2200.2 18.3, 34.2

2200.3 18.4, 34.3

2200.4 34.4

2200.5 34.5

2200.6 18.5, 34.6

2200.7 18.6, 34.7

2200.8 18.7, 34.8

2200.9 18.8, 34.9

2200.10 18.9, 34.10

\*\*\* 34.11

# Chapter 2300 - Bailments

2300.1 12.1

2300.2 12.2

2300.3 12.3

2300.4 12.4

2300.5 12.5

2300.6 12.6

2300.7 12.7

2300.8 12.8

# Chapter 2400 - Contracts

Express

2400.1 6.1, 6.2

2400.2 6.4

2400.3 6.3, 6.5

2400.4 6.6

2400.5 6.7

2400.6 6.9

2400.7 6.8

2400.8 6.10

2400.9 6.11

2400.10 6.12

2400.11 6.13

2400.12 6.14

# Implied

2400.13 New

2400.14 New

# Insurance

2410.1 New

# Chapter 2500 - Eminent Domain

2500.1 14.1

2500.2 14.2

2500.3 14.3

2500.4 14.4

2500.5 Deleted

2500.6 14.6

2500.7 14.7

2500.8 14.8

2500.9 14.11

2500.10 14.13

2500.11 14.14

2500.12 14.16

2500.13 14.17

2500.14 14.18

2500.15 14.18A

\*\*\* 14.9

\*\*\* 14.10

\*\*\* 14.12

\*\*\* 14.15

\*\*\* 14.19

# Chapter 2600 - Estates - Claim for Services

2600.1 8.4

2600.2 8.4A

2600.3 8.1

2600.4 8.2

2600.5 8.3

2600.6 8.4B, 8.5

2600.7 8.6, 8.7

**Chapter 2700 - Will Contest**

2700.1 7.3, 7.10

2700.2 7.10

2700.3 7.13

2700.4 7.2

2700.5 7.1, 7.7

2700.6 7.5, 7.9

2700.7 7.8

\*\*\* 7.4

\*\*\* 7.6

\*\*\* 7.11

\*\*\* 7.12

**Chapter 2800 - False Arrest**

2800.1 New

2800.2 New

2800.3 New

2800.4 New

# Chapter 2900 - Governmental Liability

# Municipal Tort Liability

2900.1 New

2900.2 New

2900.3 New

2900.4 New

2900.5 New

2900.6 New

2900.7 New

# State Tort Liability

2910.1 New

2910.2 New

2910.3 New

2910.4 New

2910.5 New

# Chapter 3000 - 42 U.S.C. Section 1983 Actions

3000.1 New

3000.2 New

# Chapter 3100 - Employment Rights

# Tortious Discharge

3100.1 New

# Employment Contracts

3110.1 New

3110.2 New

3110.3 New

3110.4 New

3110.5 New

3110.6 New

3110.7 New

# Chapter 3200 - Fiduciary Liability

3200.1 New

3200.2 New

3200.3 New

# Chapter 3300 - Corporate Shareholder, Officer and Director Liability

3300.1 New

3300.2 New

[]{#Alpha .anchor}**ALPHABETICAL INDEX** Instruction No.

# Abuse of Process

Abuse Of Process - Essentials For Recovery 1800.1

Abuse Of Process - Definition 1800.2

Abuse Of Process - Explanation Of The Misconduct 1800.3 Abuse Of
Process - Intent 1800.4

Abuse Of Process - Primarily 1800.5

# Assault and Battery

Assault - Essentials For Recovery 1900.1 Assault - Defined 1900.2
Battery - Essentials For Recovery 1900.3 Battery - Defined 1900.4
Intent - Defined 1900.5

# Bailments

Bailment Defined 2300.1

Bailment For Hire - Defined 2300.2

Gratuitous Bailment - Defined 2300.3

Bailment For Hire Or For Benefit Of Both Parties -Bailee\'s
Responsibility 2300.4

Duty Of Lessor Or Bailor For Hire 2300.5

Gratuitous Bailor - Responsibility 2300.6

Gratuitous Bailee - Responsibility 2300.7

Presumption From Damage 2300.8

# Business Relations - Interference

Intentional Interference With Contract -Essentials For Recovery 1200.1

Intentional Interference With Prospective Business

Advantage - Essentials For Recovery 1200.2

Interference With Contract - Definition Of Contract 1200.3

Interference With Contract - Knowledge 1200.4

Interference With Contract - Improper 1200.5

Intentional Interference 1200.6

Interference With Prospective Business Advantage - Definitions 1200.7

Interference with Prospective Business Advantage -Improper Interference
1200.8

# Commercial Torts

**Misappropriation Of Trade Secrets**

Misappropriation Of Trade Secrets - Essentials For Recovery 3400.1

Misappropriation Of Trade Secrets - Trade Secrets - Definition 3400.2

Misappropriation Of Trade Secrets - Misappropriation - Definition 3400.3

Misappropriation Of Trade Secrets - Improper Means - Definition 3400.4

# Unfair Competition

Unfair Competition - Essentials For Recovery 3410.1

Unfair Competition - Representation - Definition 3410.2

# Comparative Fault

Fault - Defined 400.1

Comparative Fault 400.2

Comparative Fault - Effects Of Verdict 400.3

Comparative Fault - No Imputation Of Fault 400.4

Comparative Fault - Single Plaintiff - Essentials For Recovery 400.5

Comparative Fault - Single Defendant - Essentials For Defense 400.6

Comparative Fault - Mitigation Of Personal Injury Damages 400.7

Unreasonable Failure To Avoid An Injury Defined 400.8

Unreasonable Assumption Of Risk - Defined 400.9

Collateral Source - Comparative Fault 300.8

# Conspiracy

Essentials For Recovery 3500.1

Conspiracy - Definition 3500.2

Participation - Definition 3500.3

Elements For Recovery - Aiding And Abetting 3500.4

# Contracts

# Express

Essentials For Recovery 2400.1

Competency 2400.2

Existence Of A Contract 2400.3

Consideration 2400.4

Terms - Interpretation 2400.5

Breach - Definition 2400.6

Performance By Plaintiff 2400.7

Affirmative Defenses - Essentials 2400.8

Impossibility Of Performance 2400.9

Prevention Of Performance 2400.10

Waiver Of Performance 2400.11

Renunciation 2400.12

# Implied

Definition - Implied Contract 2400.13

Definition - Implied Contract As To Compensation 2400.14

# 

# Insurance

Insurance Contract - Essentials For Recovery 2410.1

# Controlling Conduct Of Third Parties

Essentials For Recovery - Control Of Conduct Of

Third Persons - Duty To Licensee 3600.1

Essentials For Recovery - Controlling Conduct Of Third Parties -

Duty Of Parent To Control Conduct Of Child 3600.2

# Corporate Shareholder, Officer and Director Liability

Piercing The Corporate Veil - Essentials For Recovery 3300.1

Piercing The Corporate Veil - Definition 3300.2

# Damages

Damages - Compensatory

Elements - Personal Injury And Vehicle Damage 200.1

Vehicle Damage - Repairs Only - Repairable To Prior

Condition For Less Than Market Value 200.2

Vehicle Damage - Repairs And Use - Repairable To Prior

Good Condition For Less Than Market Value 200.3

Vehicle Damage - Market Value And Use - Not

Repairable To Prior Good Condition 200.4

Vehicle Damage - Market Value And Use - Total Destruction -

Cost Of Repairs Exceeds Market Value 200.5

Past Medical Expenses 200.6

Future Medical Expenses 200.7

Loss Of Time - Earnings 200.8

Loss Of Future Earning Capacity 200.9

Loss Of Full Mind And Body - Past 200.10

Loss Of Full Mind And Body - Future - Actions Filed On

Or Before July 1, 1997 200.11A

Loss Of Full Mind And Body - Future - Actions Filed On

Or After July 1, 1997 200.11B

Physical And Mental Pain And Suffering - Past 200.12

Physical And Mental Pain And Suffering - Future - Actions

Filed On Or Before July 1, 1997 200.13A

Physical And Mental Pain And Suffering - Future - Actions

Filed On Or After July 1, 1997 200.13B

Elements - Death - Damages Recovered By

Personal Representatives 200.14

Present Worth Of The Value Of The Estate 200.15

Burial Expenses 200.16

Support - Spouse 200.17

Support - Children 200.18

Services - Spousal Consortium 200.19

Services - Parental Consortium 200.20

Considerations - Loss Of Value Of The Estate -

Loss Of Consortium \[Spousal & Parental\] - Loss Of Support 200.21

Pre-Death Loss Of Time - Earnings 200.22

Pre-Death Medical Expenses 200.23

Pre-Death Physical And Mental Pain And Suffering 200.24

Pre-Death - Loss Of Full Mind And Body 200.25

Elements - Death Of Minor - Damages Recovered By Personal

Representatives 200.26

Present Worth Of Value Of Estate - Minor 200.27

Elements - Death Of A Minor - Rule 8 Claim 200.28

Elements - Injury To A Minor - Rule 8 Claim 200.29

Elements - Injured Parents\' Claim For Deprived Child\'s Loss Of

Parental Consortium 200.30

Elements - Spousal Consortium - Spouse\'s Damage 200.31

Aggravation Of Pre-Existing Condition 200.32

No Recovery For Second Injury 200.33

Previous Infirmed Condition 200.34

Definition Of Present Value - Actions Filed On Or Before July 1, 1997
200.35A

Definition Of Present Value - Actions Filed On Or After July 1, 1997
200.35B

Mortality Tables - Death Cases 200.36

Mortality Tables - Personal Injury 200.37

Quotient Verdict 200.38

Medical Malpractice - Lost Chance Of Survival - Definition 200.39

Medical Malpractice - Lost Chance Of Survival 200.40

# Damages - Punitive

Punitive Damages 210.1

Special Interrogatories - Punitive Damages 210.2

Punitive Damages Against A Principal Or Employer 210.3

Definition of Willful and Wanton 210.4

# Damages - Breach of Contract

Breach Of Contract - Fraud - Expectation Interest 220.1

Breach Of Contract - Fraud - Reliance Interest 220.2

# Dram Shop Liability

Essentials Of Recovery 1300.1

Definition Of Intoxication 1300.2

Proximate Cause 1300.3

Affirmative Defense - Lack Of Contribution 1300.4

Affirmative Defense - Complicity 1300.5

Affirmative Defense - Assumption Of Risk 1300.6

Definition Of \"Know Or Should Have Known\" 1300.7

# Eminent Domain

Statement Of The Case 2500.1

Condemnation - Authority 2500.2

Condemnation - Measure Of Recovery 2500.3

Fair And Reasonable Market Value 2500.4

Fair And Reasonable Actual Value (Deleted) 2500.5

Valuation Factors 2500.6

Comparables 2500.7

Controlled Access 2500.8

Costs - Attorney\'s Fees - Interest 2500.9

Measure Of Damages Re Leasehold 2500.10

Verdict Instruction (Partial Taking) 2500.11

Separate Tracts Operated As One 2500.12

Eminent Domain - Partial Taking - Highest And Best Use - Not Disputed
2500.1

Eminent Domain - Highest And Best Use - Partial Taking 2500.14

Eminent Domain - Highest And Best Use - Zoning Classification 2500.15

# Emotional Distress - Intentional Infliction

Essentials For Recovery 2000.1

Outrageous Conduct - Definition 2000.2

Intentional Or Reckless - Definition 2000.3

Severe Or Extreme Emotional Distress - Definition 2000.4

# Employment Rights

**Tortious Discharge**

Tortious Discharge Against Public Policy - Essentials For Recovery
3100.1

Tortious Discharge Against Public Policy -

Employee At Will 3100.2

Tortious Discharge Against Public Policy -

Determining Factor 3100.3

Employment Contracts

Contract Of Employment For Definite Time -

Essentials For Recovery 3110.1

Contract Of Permanent Employment -

Essentials For Recovery 3110.2

Employment Contract - Essentials For Recovery 3110.3

Terms Of Contract - Definite Time -

Permanent Employment 3110.4

Employment Contract - Employee\'s Manual 3110.5

Permanent Employment - Additional Consideration 3110.6

Affirmative Defense - Discharge For Cause 3110.7

Estates - Claim For Services

Essentials For Recovery - Implied Contract As

To Compensation 2600.1

Essentials For Recovery - Claimant Not A

Family Member 2600.2

Definition - Implied Contract 2600.3

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Estates (Continued)

Definition - Implied Contract As To Compensation 2600.4

Definition - Reasonable Value 2600.5

Special Defense Of Gratuity 2600.6

Defense - Payment During Lifetime 2600.7

False Arrest

False Arrest - Essentials For Recovery 2800.1

False Arrest - Definition Of Arrest 2800.2

False Arrest - Affirmative Defense - Good Faith

And Reasonable Belief 2800.3

False Arrest - Reasonable Belief 2800.4

Fiduciary Liability

Breach of Fiduciary Duty - Essentials For Recovery 3200.1

Fiduciary Relationship - Definition 3200.2

Fiduciary Relationship - Duty Of Disclosure 3200.3

General Instructions

Statement Of The Case 100.1

Duties Of Judge And Jury - Instructions As Whole 100.2

Burden Of Proof - Preponderance Of Evidence 100.3

Evidence 100.4

Deposition Testimony 100.5

Interrogatories 100.6

Request For Admissions 100.7

Stipulated Testimony 100.8

Credibility Of Witnesses 100.9

Viewing 100.10

Hypothetical Question - Expert Testimony 100.11

Opinion Evidence - Expert Witness 100.12

Contradictory Statements - Non-Party -

Witness Not Under Oath 100.13

Contradictory Statements - Non-Party -

Witness Under Oath 100.14

Admissions Of A Party Opponent 100.15

Impeachment - Character And Reputation 100.16

Impeachment - Public Offense 100.17

General Instruction To Jury 100.18

Clear Convincing And Satisfactory Evidence 100.19

Corporate Party 100.20

Cautionary Instructions - Juror\'s Notes

100.21

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Governmental Liability

Municipal Tort Liability

Defects In Public Way - Essentials For Recovery 2900.1

Dangerous Condition - Defined 2900.2

Alternate Safe Route - Affirmative Defense 2900.3

Design And Construction Of Public Way 2900.4

Design And Construction Of Public Improvements 2900.5

Duty To Maintain 2900.6

Affirmative Defense - Policy Or Level Of Service 2900.7

State Tort Liability

Snow Or Ice - Essentials For Recovery 2910.1

Parties - Equal Consideration 2910.2

Affirmative Defense - Policy Or Level Of Service 2910.3

Duty To Maintain 2910.4

Evidence 2910.5

Independent Contractor - Liability For

Liability Of Person Engaging Services Of

Independent Contractor - Essentials For Recovery 500.1

Liability Of Person Engaging Services Of

Independent Contractor -Duty Of Care To

Employees Of Independent Contractor 500.2

Liability Of Person Engaging Services Of

Independent Contractor - Work Dangerous In

Absence Of Special Precautions 500.3

Liability Of Person Engaging Services Of An

Independent Contractor - Inherently Dangerous Work 500.4

Liability Of Person Engaging Services Of

Independent Contractor - Negligence In Exercising

Control Kept By Such Person 500.5

Liability Of Person Engaging Services Of

Independent Contractor - Nondelegable Duty Imposed

By Statute, Ordinance Or Contract 500.6

Liability Of Person Engaging Services Of

Independent Contractor - Work Likely To Cause

Nuisance Or Trespass - Essentials For Recovery 500.7

Liability Of Person Engaging Services Of

Independent Contractor - Work Involving Illegal Act -

Essentials For Recovery 500.8

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Insurer - Excess Liability

Excess Liability

Third Party Bad Faith - Essentials For Recovery 1400.1

Definition Of Bad Faith 1400.2

Insurer Liability

First Party Bad Faith - Essentials For Recovery 1410.1

Insurer Contract Liability

Insurance Contract - Essentials For Recovery 1420.1

Uninsured Motorist Coverage - Essentials For Recovery 1430.1

Underinsured Motorist Coverage - Essentials For Recovery 1440.1

Libel And Slander

Libel (Slander) Per Se - Essentials For Recovery 2100.1

Libel (Slander) Per Se - Essentials For Recovery 2100.2

Libel (Slander) Per Quod - Essentials For Recovery 2100.3

Malice - Definition 2100.4

Actual Malice - Definition 2100.5

Libel And Slander - Affirmative Defense - Truth 2100.6

Libel (Slander) - Damages 2100.7

Malicious Prosecution

Malicious Prosecution - Essentials For Recovery

Prior Criminal Prosecution 2200.1

Malicious Prosecution - Instigation Of Prosecution - Where

Prosecution Formally Commenced By A Public Official 2200.2

Malicious Prosecution - Probable Cause 2200.3

Malicious Prosecution - Probable Cause -

Effect Of Conviction 2200.4

Malicious Prosecution - Malice (Public Official) 2200.5

Malicious Prosecution - Malice (Non-Public Official) 2200.6

Malicious Prosecution - Favorable Termination

Of Prior Criminal Proceeding 2200.7

Malicious Prosecution - Malice And Probable Cause -

Advice Of An Attorney 2200.8

Malicious Prosecution - Essentials For

Recovery Prior Civil Proceeding 2200.9 Malicious Prosecution - Probable
Cause -

Prior Civil Proceeding 2200.10

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Malpractice - Legal

Essentials For Recovery 1500.1

Attorney - Client Relationship - Defined 1500.2

Negligence - Defined 1500.3

Damages - Error In Prosecuting The Earlier Case 1500.4

Damages - Error In Defending The Earlier Case 1500.5

Malpractice - Medical

Negligence - Essentials For Recovery 1600.1

Negligence - Duty Of Physician 1600.2

Negligence - Duty Of Specialist 1600.3

Negligence - Duty Of Hospital - Professional Service 1600.4

Negligence - Duty Of Hospital - Nonmedical, Administrative,

Ministerial Or Routine Care 1600.5

Negligence Of Chiropractors As To Acts Done Within Scope

Of License Not Defined As \"Additional Procedures And

Practices\" Authorized By Senate File 474, 1983

Regular Session 1600.6

Negligence - Duty Of Chiropractor As To Acts Done Within

Scope Of License Subsequent To July 1, 1983 Defined As

\"Additional Procedures And Practices\" Authorized By

Senate File 474, 1983 Regular Session 1600.7

Chiropractor Or Health Care Practitioner Undertaking To Treat

A Patient In A Manner Not Permitted By License 1600.8

Duty Of Physician, Chiropractor Or Health Care Practitioner -

Res Ipsa Loquitur 1600.9

Informed Consent - Essentials For Recovery 1600.10

Informed Consent - Reserved 1600.11

Duty Of Physician As To Informed Consent 1600.12

Express Warranty - Duty Of Physician Including Specialist 1600.13

Medical Battery - Essentials For Recovery 1600.14

Medical Battery - Defined 1600.15

Misrepresentation

Negligent Misrepresentation

Negligent Misrepresentation - Where No Public Duty To Give

Information Exists - Essentials For Recovery 800.1

Negligent Misrepresentation - Information - Definition 800.2

Negligent Misrepresentation - Care And Competence

Expected Of Supplier Of Information - Nonprofessional 800.3

Negligent Misrepresentation - Care And Competence

Expected Of Supplier Of Information - Professional 800.4

Negligent Misrepresentation - Pecuniary Interest - Definition 800.5

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Misrepresentation (Continued)

Negligent Misrepresentation - Information May

Be Supplied Directly Or Indirectly 800.6

Negligent Misrepresentation - Persons For Whose

Guidance The Information Is Sought 800.7

Negligent Misrepresentation - Justifiable Reliance -

Definition 800.8

Fraudulent Misrepresentation

Fraudulent Misrepresentation - Essentials For Recovery 810.1

Fraudulent Nondisclosure - Essentials For Recovery 810.2

Fraudulent Misrepresentation - Definition Of Representation 810.3

Fraudulent Misrepresentation - Material - Definition 810.4

Fraudulent Misrepresentation - Knowledge Of

Falsity (Scienter) - Definition 810.5

Fraudulent Misrepresentation - Definition Of Intent

To Deceive 810.6

Fraudulent Misrepresentation - Intent To Deceive -

Persons Affected 810.7

Fraudulent Misrepresentation - Reliance - Generally 810.8

Fraudulent Misrepresentation - Reliance - Opinion 810.9

Fraudulent Misrepresentation - Reliance - Opinion 810.10

Motor Vehicles - Rules Of The Road

Speed Restrictions

Reasonable And Proper 600.1

Speed In Excess Of Statutory Limits 600.2

Assured Clear Distance Ahead 600.3

Interstate And Comparable Highways 600.4

Truck Speed Limits 600.5

Bus Speed Limits 600.6

Control - Common Law 600.7

Control Of Vehicle - Statutory 600.8

Duty To Use Ordinary Care Where Conditions Require

Less Than Statutory Speed Limits 600.9

Driving On Right Side Of Road -

Overtaking And Passing, Etc.,

Meeting And Turning To Right 600.10

Driving On Right Half Of Road - Exceptions 600.11

Driving On Right-Hand Side Of Road -

Slow Moving Vehicle 600.12

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Motor Vehicles - Rules Of The Road (Continued)

Driving On Right-Hand Side Of Road - When Four

Or More Lanes And Two-Way Traffic 600.13

Overtaking A Vehicle 600.14

Limitations On Overtaking On The Left 600.15

Duty Of Passed Vehicle 600.16

Overtaking On The Right - Left Turning Vehicle 600.17

Overtaking On The Right - Multi-Lane Highway 600.18

Prohibited Passing 600.19

One-Way Roads 600.20

Traffic Islands 600.21

Backing Vehicle On Highway 600.22

Roads Laned For Traffic 600.23

Following Too Closely 600.24

Trucks And Towed Vehicles - Distance Requirements 600.25

Convoys - Distance Requirements 600.26

Drawbar Or Towing Arm - Required Equipment 600.27

Limitations On Towing 600.28

Turning And Starting And Signals

On Stopping And Turning

Turning At Intersections 600.29

Turning On Curve Or Crest Of Hill 600.30

Starting Parked Vehicle 600.31

Turning From A Direct Course 600.32

When Signal Required - Continuous - Methods Of Giving 600.33

Stopping 600.34

Approaching Or Entering Intersection 600.35

Traffic Control Signals 600.36

Left Turns - Yielding 600.37

Entering Through Highways 600.38

Vehicles Entering Stop Or Yield Intersection 600.39

Operation On Approach Of Emergency Vehicles 600.40

Authorized Emergency Vehicle Privileges (other than fire

department, police or ambulance) 600.41

Authorized Emergency Vehicle Privileges (fire department,

police vehicle or ambulance) 600.42

Authorized Emergency Vehicle Privilege (police vehicle

pursuing speed violator) 600.43

Authorized Emergency Vehicles (Test of an Emergency) 600.44

Pedestrians\' Rights And Duties

Traffic Control Signals - Pedestrians 600.45

Crosswalk - Definition 600.46

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Motor Vehicles - Rules Of The Road (Continued)

Pedestrian\'s Duty Of Care In A Crosswalk 600.47

Crossing At Other Than Crosswalk 600.48

Pedestrians On Left 600.49

Pedestrians Soliciting Rides 600.50

Pedestrians\' Right Of Way 600.51

Duty Of Driver 600.52

Duty Of Driver - Child Darting Case 600.53

White Canes Restricted To Blind Persons - Duty Of Drivers 600.54

Safety Zone

Driving Through 600.55

Special Stops Required

Obedience to Signal Of Train 600.56

Stop At Certain Railroad Crossings 600.57

Certain Vehicles Must Stop 600.58

Stop Before Crossing Sidewalk - Right Of Way 600.59

Stopping, Standing And Parking

Stopping On Traveled Way 600.60

Stopping On Traveled Way - Exception - Disabled Vehicle 600.61

Stopping, Standing Or Parking 600.62

Parking At Right-Hand Curb 600.63

Miscellaneous Rules

Unattended Motor Vehicle 600.64

Obstruction To Driver\'s View 600.65

Control Of Vehicle - Signals (Deleted) 600.66

Coasting Prohibited 600.67

Crossing Median Strip Or Parking On Fully Controlled -

Access Facilities 600.68

Putting Debris On Highway 600.69

Removing Injurious Material From Highway 600.70

Right Of Assumption 600.71

Lookout 600.72

Recklessness 600.73

Legal Excuse 600.74

Sudden Emergency 600.75

Negligence Of Common Carrier Of Passengers 600.76

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Motor Vehicles - Rules Of The Road (Continued)

School Buses

Meeting School Bus 600.77

Overtaking School Bus 600.78

Lighting Equipment

When Lighted Lamps Required 600.79

Head Lamps On Motor Vehicles 600.80

Head Lamps On Motorcycles 600.81

Rear Lamps And Reflectors 600.82

Clearance And Identification Lights 600.83

Lamp Or Flag On Projecting Load 600.84

Lamps On Parked Vehicles 600.85

Lamps On Bicycles 600.86

Lamps On Other Vehicles And Equipment 600.87

Slow Moving Farm Vehicles, Etc. 600.88

Spot Lamps 600.89

Auxiliary Driving Lamps 600.90

Signal Lamps And Signal Devices 600.91

Duty To Dim Lights 600.92

Brakes

Red Light In Front 600.93

Brakes, Hitch And Control Requirements 600.94

Brakes - Performance Ability 600.95

Miscellaneous Equipment

Horns And Warning Devices 600.96

Duty To Sound Horn 600.97

Windshields And Windows - Clear Vision 600.98

Unsafe Vehicles 600.99

Seat Belt Defense - Essentials 600.100

Negligence - Proximate Cause - Co-Employee-Employer Liability -

Vicarious Liability - Sidewalk Liability

Negligence - Proximate Cause

Essentials For Recovery 700.1

Ordinary Care - Common Law Negligence - Defined 700.2

Proximate Cause - Defined 700.3

Sole Proximate Cause 700.4

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Negligence - Proximate Cause - Co-Employee-Employer Liability -

Vicarious Liability - Sidewalk Liability (Continued)

General Negligence (Res Ipsa Loquitur) 700.5

Accident Does Not Constitute Or Raise

Presumption Of Negligence 700.6

Act Of God 700.7

Safety Code - Negligence Per Se 700.8

Safety Code/Custom - Evidence Of Negligence 700.9

Proper Lookout 700.10

Co-Employee

Essentials For Recovery Against Co-Employee 710.1

Arose Out Of And In The Course Of Employment - Defined 710.2

Gross Negligence Of Co-Employee - Defined 710.3

Employer - Employee Liability

Employer Liability 720.1

Employer-Employee Relationship - Defined 720.2

Employer\'s Duty To Warn 720.3

Vicarious Liability

Liability Of Employer 730.1

Scope Of Employment 730.2

Definition Of Independent Contractor 730.3

Borrowed Servant 730.4

Sidewalk Liability

Owner Liability For Sidewalks - Natural Accumulation Of

Snow And Ice 740.1

Owner/Occupant Liability For Sidewalks - Artificial

Accumulation Of Snow And Ice 740.2

Natural Accumulation - Definition 740.3

Premises Liability

Essentials For Recovery - Conditions Of Premises -

Duty To Invitees 900.1

Essentials For Recovery - Condition Of Premises -

Duty To Licensees 900.2

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Premises Liability (Continued)

Essentials For Recovery - Condition Of Premises -

Duty To Trespassers - Negligence 900.3

Essentials For Recovery - Condition Of Premises -

Duty To Trespassers - Willful Or Wanton 900.4

Condition Of The Premises - Knowledge Or Notice Of

The Condition 900.5

Known Or Obvious 900.6

Known Or Obvious - Defined 900.7

Products Liability

Essentials For Recovery 1000.1

Enhanced Injury (Crashworthiness) - Essentials For Recovery 1000.2

Enhanced Injury - Alternative Design 1000.3

Defective Condition And Reasonably Foreseeable Use -

Definition 1000.4

Unreasonably Dangerous - Definition 1000.5

Change In Condition Of The Product 1000.6

Directions Or Warning (Deleted) 1000.7

Unavoidable Unsafe Products (Deleted) 1000.8

Proximate Cause 1000.9

Assumption Of Risk 1000.10

Affirmative Defense - State Of The Art -

Strict Liability and Negligence 1000.11

Warning - Later Acquired Knowledge 1000.12

Railroad Crossings

Railroad Crossings - Crossbuck Signs 1700.1

Railroad Crossings - Horn And Bell 1700.2

Railroad Crossings - Electronic Flashing Signals And Flagman 1700.3

Railroad Crossings - Speed 1700.4

Railroad Crossings - Defective Crossing (Public Highway) 1700.5

Railroad Crossings - Headlights 1700.6

Railroad Crossings - Plaintiff\'s Negligence - Look And Listen 1700.7

42 U.S.C. Section 1983 Actions

42 U.S.C. Section 1983 Actions - Essentials For Recovery 3000.1

42 U.S.C. Section 1983 Actions - Color Of State Law 3000.2

Verdicts

Return Of Verdict - Forms Of Verdict 300.1

Printed 1/98

IOWA CIVIL JURY INSTRUCTIONS

Instruction No.

Verdicts (Continued)

Single Plaintiff - Single Defendant - No Comparative Fault -

Plaintiff\'s Verdict 300.2

Single Plaintiff - Single Defendant - No Comparative Fault -

Defendant\'s Verdict 300.3

Verdict - Single Plaintiff - Single Defendant - Comparative Fault 300.4

Verdict - Single Plaintiff, Single Defendant - Claim

And Counterclaim - Comparative Fault 300.5

Verdict - Single Plaintiff - Defendant(s),

Third Party Defendant(s), Person(s) Who Have

Been Released - Comparative Fault 300.6

Death Of Parents - Loss Of Spousal Consortium To

The Surviving Spouse - Loss Of Parental Consortium

To A Minor - Allocation Of Damage -- Damages Recoverable By Personal
Representative 300.7

Collateral Source - Comparative Fault 300.8

Verdict - Product Liability - State Of The Art 300.9

# Warranty

Essentials For Recovery - Express Warranty 1100.1

Express Warranty - Defined 1100.2

Reliance On Express Warranty 1100.3

Breach Of Express Warranty 1100.4

Implied Warranty Of Fitness For Particular Purpose - Definition 1100.5

Essentials For Recovery - Implied Warranty Of Fitness

For Particular Purpose 1100.6

Fitness - Particular Purpose 1100.7

Reliance - Particular Purpose 1100.8

Implied Warranty Of Fitness For Particular Purpose --

Contract For Services - Definition 1100.9

Implied Warranty Of Merchantability - Defined 1100.10

Essentials For Recovery - Implied Warranty Of Merchantability 1100.11

Merchant - Definition 1100.12

Merchantability - Definition 1100.13

# Will Contest 

Elements - Will Contest 2700.1

Testamentary Capacity 2700.2

Unsoundness of Mind Before Or After Execution 2700.3

Undue Influence - Essentials For Recovery 2700.4

Definition Of Undue Influence - Person charged With

Undue Influence Need Not Be Present 2700.5

Circumstances To Be Considered 2700.6

Definition Of Confidential Relationship 2700.7

MODEL JURY INSTRUCTIONS

Facts

Roger Smith, age 64, was operating his motor vehicle westbound on
Douglas Avenue in Des Moines, Iowa. John Jones was operating his motor
vehicle eastbound on Douglas Avenue. At the intersection of 55th &
Douglas Mr. Jones attempted to make a left hand turn. Mr. Jones turned
and the vehicles collided. Mr. Smith\'s vehicle was totaled. He is
asking for damages for his personal injury and property damage. His
wife, Jane Smith, age 22, is asking for damages for loss of consortium

Mr. Jones was not injured but is claiming Mr. Smith was negligent for
failing to keep a proper lookout and for driving faster than the speed
limit. Mr. Jones is not making a cross claim against Mr. Smith for
indemnity or contribution for any damages that may be awarded Mrs.
Smith.

MODEL INSTRUCTION NO.1

Members of the Jury: In this case plaintiffs, Roger and Jane Smith,
claim defendant, John Jones, was negligent in the operation of his motor
vehicle and that negligence was the cause of plaintiffs\' damages.

Roger Smith\'s and Jane Smith\'s claims are separate claims. You shall
consider each claim separate in accordance with the evidence and
instructions.

John Jones denies he was negligent and that he was the cause of
plaintiffs\' damages. Defendant also claims that the plaintiff, Roger
Smith, was negligent and that negligence was the cause of Roger Smith\'s
damages.

Do not consider this summary as proof of any claim. Decide the facts
from the evidence and apply the law which I will now give you.

MODEL INSTRUCTION NO. 2

My duty is to tell you what the law is. Your duty is to accept and apply
this law.

You must consider all of the instructions together because no one
instruction includes all of the applicable law.

The order in which I give these instructions is not important.

Your duty is to decide all fact questions.

Do not be influenced by any personal likes or dislikes, sympathy, bias,
prejudices or emotions.

MODEL INSTRUCTION NO. 3

Whenever a party must prove something they must do so by the
preponderance of the evidence.

Preponderance of the evidence is evidence that is more convincing than
opposing evidence. Preponderance of the evidence does not depend upon
the number of witnesses testifying on one side or the other.

MODEL INSTRUCTION NO. 4

You shall base your verdict only upon the evidence and these
instructions.

Evidence is:

1\. Testimony in person or by deposition.

2\. Exhibits received by the court.

3\. Stipulations which are agreements between the attorneys.

4\. Any other matter admitted.

Evidence may be direct or circumstantial. The weight to be given any
evidence is for you to decide:

The following are not evidence:

1\. Statements, arguments, questions and comments by the lawyers.

2\. Objections and rulings on objections.

3\. Testimony I told you to disregard.

4\. Anything you saw or heard about this case outside the courtroom.

MODEL INSTRUCTION NO. 5

Certain testimony has been read into evidence from a deposition. A
deposition is testimony taken under oath before the trial and preserved
in writing. You are to consider that testimony as if it had been given
in court.

MODEL INSTRUCTION NO. 6

You will decide the facts from the evidence. Consider the evidence using
your observations, common sense and experience. You must try to
reconcile any conflicts in the evidence; but, if you cannot, you will
accept the evidence you find more believable.

In determining the facts, you may have to decide what testimony you
believe. You may believe all, part or none of any witness\' testimony.

There are many factors which you may consider in deciding what testimony
to believe, for example:

1\. Whether the testimony is reasonable and consistent with other
evidence you believe;

2\. The witness\' appearance, conduct, age, intelligence, memory and
knowledge of the

facts; and,

3\. The witness\' interest in the trial, their motive, candor, bias and
prejudice.

MODEL INSTRUCTION NO. 7

You have heard testimony from persons described as experts. Persons who
have become experts in a field because of their education and experience
may give their opinion on matters in that field and the reasons for
their opinion.

Consider expert testimony just like any other testimony. You may accept
it or reject it. You may give it as much weight as you think it
deserves, considering the witness\' education and experience, the
reasons given for the opinion, and all the other evidence in the case.

MODEL INSTRUCTION NO. 8

In these instructions I will be using the term \"fault.\" Fault means
one or more acts or omissions towards the person or property of another
which constitutes negligence.

MODEL INSTRUCTION NO. 9

The mere fact an accident occurred or a party was injured does not mean
a party was at fault.

Both drivers had a right to use the road, but each had to respect the
rights of the other. Each driver could assume the other would obey the
law until they knew, or in the exercise of ordinary care, should have
known the other was not going to obey the law.

MODEL INSTRUCTION NO. 10

\"Negligence\" means failure to use ordinary care. Ordinary care is the
care which a reasonably careful person would use under similar
circumstances. \"Negligence\" is doing something a reasonably careful
person would not do under similar circumstances, or failing to do
something a reasonably careful person would do under similar
circumstances.

MODEL INSTRUCTION NO. 11

The conduct of a party is a proximate cause of damage when it is a
substantial factor in producing damage and when the damage would not
have happened except for the conduct.

\"Substantial\" means the party\'s conduct has such an effect in
producing damage as to lead a reasonable person to regard it as a cause.

MODEL INSTRUCTION NO. 12

The plaintiff, Roger Smith, claims the defendant was at fault in the
following particular:

a\. Negligence.

This ground of fault has been explained to you in other instructions.

The plaintiff must prove all of the following propositions:

1\. The defendant was at fault. In order to prove fault, the plaintiff
must prove the defendant was negligent in one or more of the following
ways:

a\. In failing to keep a proper lookout.

b\. In traveling at a speed above the legal limit.

c\. In failing to have the vehicle under control.

d\. In failing to yield the right-of-way.

e\. In driving too fast when approaching an intersection.

2\. The defendant\'s fault was a proximate cause of the plaintiff\'s
damage.

3\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, you will consider the defense of comparative fault
as explained in Instruction Nos. 18, 19 and 20.

MODEL INSTRUCTION NO. 13

\"Proper lookout\" is the lookout a reasonable person would keep in the
same or similar situation. It means more than looking and seeing. It
includes being aware of the operation of the driver's vehicle in
relation to what the driver saw or should have seen.

A violation of this law is negligence.

MODEL INSTRUCTION NO. 14

At the time and place, and with the motor vehicle involved in this case,
any speed over 30 miles per hour was unlawful.

A violation of this law is negligence.

MODEL INSTRUCTION NO. 15

A driver must have their vehicle under control. It is under control when
the driver can guide and direct its movement, control its speed and stop
it reasonably fast.

A violation of this law is negligence.

MODEL INSTRUCTION NO. 16

The driver of a vehicle intending to turn left within an intersection
shall yield the right-of-way to all vehicles approaching from the
opposite direction which are at the intersection or so close to the
intersection as to be an immediate danger. Then the driver, having
yielded and having given the required signal, may make the left turn.

A violation of this law is negligence.

MODEL INSTRUCTION NO. 17

A driver operating a vehicle must have it under control and shall reduce
its speed to a reasonable and proper rate when approaching and traveling
through a crossing or intersection of highways.

A violation of this law is negligence.

MODEL INSTRUCTION NO. 18

The defendant claims the plaintiff Roger Smith was at fault in the
following particulars:

a\. Negligence.

This ground of fault has been explained to you in other instructions.

The defendant must prove both of the following propositions:

1\. The plaintiff was at fault. In order to prove fault, the defendant
must prove Roger Smith was negligent in one or more of the following
ways:

a\. In failing to keep a proper lookout.

b\. In traveling at a speed above the legal limit.

2\. The plaintiff\'s fault was a proximate cause of plaintiff\'s damage.

If the defendant has failed to prove either of these propositions, the
defendant has not proved \[his\] \[her\] defense. If the defendant has
proved both of these propositions, then you will assign a percentage of
fault against the plaintiff Roger Smith and include Roger Smith\'s fault
in the total percentage of fault found by you in answering the special
verdicts.

MODEL INSTRUCTION NO. 19

After you have compared the conduct of all parties, if you find the
plaintiff, Roger Smith, was at fault and Roger Smith\'s fault was more
than 50% of the total fault, Roger Smith cannot recover damages.

However, if you find Roger Smith\'s fault was 50% or less of the total
fault, then I will reduce the total damages by the percentage of
plaintiff\'s fault.

MODEL INSTRUCTION NO. 20

Damages may be the fault of more than one person. In comparing fault,
you should consider all of the surrounding circumstances as shown by the
evidence, together with the conduct of the plaintiff, Roger Smith, and
defendant, John Jones, and the extent their conduct caused the damages
claimed. You should then determine what percentage, if any, each
person's fault contributed to the damages.

MODEL INSTRUCTION NO. 21

If you find Roger Smith is entitled to recover damages, it is your duty
to determine the amount. In doing so you shall consider the following
items:

1\. The difference between the reasonable market value of the vehicle
immediately before and after the damage, plus the reasonable value of
the use of the vehicle for the time reasonably required to obtain a
replacement.

2\. The reasonable value of necessary hospital charges, doctor charges
and prescriptions from the date of injury to the present time.

3\. The present value of reasonable and necessary hospital charges,
doctor charges and prescriptions which will be incurred in the future.

4\. The reasonable value of lost wages from the date of injury to the
present time.

5\. The present value of loss of future earning capacity. Loss of future
earning capacity is the reduction in the ability to work and earn money
generally, rather than in a particular job.

6\. Loss of function of the mind and body from the date of injury to the
present time.

7\. The present value of future loss of function of the mind and body.

8\. Physical and mental pain and suffering from the date of injury to
the present time. Physical pain and suffering may include, but is not
limited to, unpleasant feelings, bodily distress or uneasiness, bodily
suffering, sensations or discomfort. Mental pain and suffering may
include, but is not limited to, mental anguish, nervousness, worry,
anxiety, irritability, disappointment, depression, confusion,
disorientation, apprehension, embarrassment, loss of enjoyment of life,
a feeling of uselessness or

emotional distress.

9\. The present value of future physical and mental pain and suffering.
Physical and mental pain and suffering have already been explained to
you in this Instruction.

The amount you assess for physical and mental pain and suffering in the
past and future, future earning capacity, and loss of function of the
mind and body in the past and future cannot be measured by any exact or
mathematical standard. You must use your sound judgment based upon an
impartial consideration of the evidence. Your judgment must not be
exercised arbitrarily, or out of sympathy or prejudice, for or against
the parties. The amount you assess for any item of damage must not
exceed the amount caused by the defendant as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded
under one item of damage to be included in any amount awarded under
another item of damage. Similarly, damages awarded to one party shall
not be included in any amount awarded to another party.

Add together the amounts, if any, you find for each of the above items
and the total will be used to answer the special verdicts.

MODEL INSTRUCTION NO. 22

The plaintiff Jane Smith claims the defendant was at fault because of
the defendant\'s negligence.

This ground of fault is explained to you in other instructions.

The plaintiff must prove all of the following propositions:

1\. The defendant was negligent in one or more of the following ways:

a\. In failing to keep a proper lookout

b\. In traveling at a speed above the legal limit.

c In failing to have the vehicle under control

d\. In failing to yield the right of way.

e\. In driving too fast when approaching an intersection.

2\. The negligence was a proximate cause of the plaintiff's damage.

3\. The amount of damage.

If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some amount.

MODEL INSTRUCTION NO. 23

When you consider Jane Smith\'s claim for loss of consortium you will
not charge Jane Smith with the fault of any other person, and I will not
reduce the amount of damages awarded to Jane Smith.

MODEL INSTRUCTION NO. 24

\"Spousal consortium\" is the fellowship of a husband and wife and the
right of each to the intangible benefits of company, cooperation,
affection, the aid of the other in every marital relationship, general
usefulness, industry and attention within the home and family. It does
not include loss of financial support from the injured spouse.

If you find Jane Smith is entitled to recover damages, you shall
consider the following items:

1\. The reasonable value of loss of spousal consortium which Roger Smith
would have performed for plaintiff from the date of injury until the
present time.

MODEL INSTRUCTION NO. 25

Future damages must be reduced to present value. \"Present value\" is a
sum of money paid now in advance which, together with interest earned at
a reasonable rate of return, will compensate the plaintiff for future
losses.

MODEL INSTRUCTION NO. 26

There is evidence showing the normal life expectancy of persons of the
age of Roger Smith and Jane Smith to be 14.70 and 55.16 respectively.
The length of time one would probably live is based upon the supposed
life expectancy of persons of ordinary occupation. You are not to regard
this as proof they would have lived a number of years. In determining
the life expectancy you may consider the person\'s health, habits,
occupation and any other evidence bearing on the issue of how long they
may live. Evidence of life expectancy is not conclusive. You are to
determine the probable length of Roger Smith and Jane Smith's life.

MODEL INSTRUCTION NO. 27

In arriving at an item of damage or any percentage of fault you cannot
arrive at a figure by taking down the estimate of each juror as to an
item of damage or a percentage of fault, and agreeing in advance that
the average of those estimate shall be your item of damage or percentage
of fault.

MODEL INSTRUCTION NO. 28

Upon retiring you shall select a foreman or forewoman. It will be his or
her duty to see discussion is carried on in an orderly fashion, the
issues are fully and freely discussed, and each juror is given an
opportunity to express his or her views.

Your attitude at the beginning of your deliberations is important. It is
not a good idea for you to take a position before thoroughly discussing
the case with the other jurors. If you do this, individual pride may
become involved and you may later hesitate to change an announced
position even if shown it may be incorrect. Remember you are not
partisans or advocates, but are judges - judges of the facts. Your sole
interest is to find the truth and do justice.

MODEL INSTRUCTION NO. 29

I am giving you 3 verdict forms. If you all agree to the answers to the
questions, the verdict will be signed by the person you selected to
serve as foreman or forewoman.

After deliberating for six (6) hours from 3:00 o'clock p.m., excluding
meals or recesses outside your jury room, then it is necessary that only
seven of you agree upon the verdict. In that case the verdict must be
signed by all seven jurors who are in agreement.

When you have agreed upon a verdict and appropriately signed it, inform
the Court Attendant.

Dated this 21st day of November, 1986.

Judge of the Fifth Judicial District of Iowa

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

ROGER and JANE SMITH, : LAW NO. 17249

Plaintiffs, :

:

vs. : SPECIAL VERDICT

: NO. ONE

JOHN JONES, :

Defendant. :

We find the following verdict on the questions submitted to us:

Question No. 1: Was the defendant, John Jones, at fault?

Answer \"yes\" or \"no.\"

ANSWER:

(If your answer is \"no,\" do not answer any further questions.)

Question No. 2: Was the fault of the defendant, John Jones, a proximate
cause of damage to the plaintiff?

Answer \"yes\" or \"no.\"

ANSWER:

(If your answer is \"no,\" do not answer any further questions.)

Question No. 3: Was the plaintiff, Roger Smith, at fault?

Answer: \"yes\" or \"no.\"

ANSWER:

(If your answer is \"no\", do not answer question 4 or 5.)

Question No. 4: Was the plaintiff\'s, Roger Smith, fault a proximate
cause of his damage?

Answer \"yes\" or \"no.\"

ANSWER:

(If your answer is \"no,\" do not answer Question No. 5.)

Question No. 5: Using 100% as the total combined fault of plaintiff,
Roger Smith, and defendant, John Jones, which was a proximate cause of
plaintiff\'s damage, what percentage of such combined fault do you
assign to the plaintiff and what percentage of such combined fault do
you assign to the defendant?

ANSWER: Plaintiff, Roger Smith %

Defendant, John Jones %

TOTAL 100%

(If you find plaintiff to be more than 50% at fault, do not answer the
next question.)

Question No. 6: What is the total amount of damages, if any, sustained
by the plaintiff, Roger Smith, without taking into consideration any
reduction of damages due to plaintiff's fault, if any?

ANSWER \$\_\_\_\_\_\_\_\_\_\_\_

FOREMAN OR FOREWOMAN\*

\*To be signed only if verdict is unanimous.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\*

\*To be signed by the jurors agreeing thereto after six hours or more of
deliberation.

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

ROGER and JANE SMITH, : LAW NO. 17249

Plaintiffs, :

:

vs. : SPECIAL VERDICT

: NO. TWO

:

JOHN JONES, :

Defendant. :

We, the jury, find in favor of the plaintiff, Jane Smith, and fix the
amount of her recovery against the defendant at \_\_\_\_\_\_\_\_\_
dollars.

FOREMAN OR FOREWOMAN\*

\*To be signed only if verdict is unanimous.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\*

\*\*To be signed by the jurors agreeing thereto after six hours or more
of deliberation.

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

ROGER and JANE SMITH, : LAW NO. 17249

Plaintiffs, :

:

vs. : SPECIAL VERDICT

: NO. THREE

JOHN JONES, :

Defendant. :

We, the jury, find in favor of the defendant on plaintiff Jane Smith\'s
claim for loss of consortium.

FOREMAN OR FOREWOMAN\*

\*To be signed only if verdict is unanimous.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\* Juror\*\*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Juror\*\*

\*\*To be signed by the jurors agreeing thereto after six hours or more
of deliberation.