declining to apply Goetzman rule in pending appeal because plaintiff had failed to preserve error on that issue
How later courts described this case
- declining to apply Goetzman rule in pending appeal because plaintiff had failed to preserve error on that issue
- interpreting the meaning of “gross negligence” in section 306.41
Written by the judges who cited it.
The opinion
UHLENHOPP, Justice
(dissenting).
I. Absent any statutes on the subject, we could place degrees of culpability, in less than the intentional and strict liability torts, into neat categories such as negligence and recklessness. Then, placing the problem of comparative negligence aside, we could hold that a plaintiff’s contributory negligence bars recovery for the defendant’s negligence, and a plaintiff’s recklessness bars recovery for the defendant’s recklessness — in accordance with the view of the American Law Institute. Restatement (Second) of Torts § 467 (contributory negligence), § 482 (recklessness).
The difficulty is that we do have statutes on the subject. The General Assembly has employed at least four expressions in this area. It used the term “reckless” for a number of years, in our guest statute. Iowa Code § 321.494 (1983) (statute held unconstitutional in Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980)). That term received a quite definite meaning at the hand of this court. Vipond v. Jergensen, 260 Iowa 646, 650 , 148 N.W.2d 598, 600 (1967) (“no care coupled with disregard for consequences”). Next in line as to culpability, the General Assembly has employed the expression “gross negligence amounting to such lack of care as to amount to wanton neglect”, in our worker’s compensation law. Iowa Code § 85.20 (2). We defined that expression in Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981) (“1. knowledge of the peril 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 peril”). Going down another step, we have legislative use of the term that we are trying to define here, “gross negligence.” Iowa Code § 306.41 . At the lowest level we have legislative employment of the word *768 “negligence” in such statutes as section 619.17 of the Code. This court has stated that “negligence” is failure to exercise “reasonable care.” Appling v. Stuck, 164 N.W.2d 810, 814 (Iowa 1969).
Our duty in applying present section 306.-41 is to ascertain the Assembly’s intent in using the expression “gross negligence” with reference to a defendant’s conduct. The conclusion seems reasonable that it did not mean “reckless,” or “gross negligence” amounting to “wanton neglect,” or “negligence”. Had it intended any of those cul-pabilities it could have employed the expressions it used previously. Apparently it meant conduct less culpable than “reckless” or “gross negligence” amounting to “wanton neglect”, but more culpable than “negligence”.
II. What then about a plaintiff’s own conduct, on the other side of the equation? Assuming that legal cause is proved, if a defendant is not liable unless he is “grossly negligent” can he defeat a plaintiff by showing the plaintiff was merely “negligent”? The defendant’s “gross negligence” might be gross indeed while the plaintiff’s “negligence” might be only slight.. Where a plaintiff is required to show and does show that the defendant is guilty of gross negligence, I think the plaintiff should only be defeated by his own culpability if it rises to the level of gross contributory negligence. Stinson v. Daniel, 220 Tenn. 70, 78 , 414 S.W.2d 7, 10 (1967) (“Ordinary contributory negligence will not bar a recovery in an action based on gross or wanton negligence, unless the contributory negligence is also gross or wanton.”); Hood v. Waldrum, 58 Tenn.App. 512, 521 , 434 S.W.2d 94, 98 (1968) (“If plaintiff’s negligence was also gross, defendant is not liable even for gross negligence.”); Brown v. Barber, 26 Tenn.App. 534, 541 , 174 S.W.2d 298, 300 (1943) (“while mere ordinary contributory negligence will not operate to bar a recovery in an action founded on gross negligence, yet where the contributory negligence also is gross instead of ordinary, there is no liability”).
The trial court found that the State was grossly negligent and that the gross negligence was a legal cause of the incident. The evidence presents a question of fact as to whether the deceased driver was also grossly negligent and, if so, whether his gross negligence also was a legal cause of the incident. I would reverse and remand for a factfinding on the latter two issues and for judgment accordingly, upon the trial record already made.