Estate of Grove v. Clinic Bldg. Co.

ESTATE OF DONALD L. GROVE, and KAREN L. GROVE, Individually and as administrator of the ESTATE OF DONALD L. GROVE, Plaintiffs-Appellants, v. CLINIC BUILDING COMPANY, INC., Defendant-Appellee.

No. 22-0716

Court of Appeals of Iowa

February 22, 2023

Appeal from the Iowa District Court for Story County, John R. Flynn Judge.

Plaintiffs appeal the district court's grant of summary judgment against them. AFFIRMED.

Thomas A. Palmer of Lawyer, Dougherty & Palmer, PLC, West Des Moines, for appellants.

J Scott Bardole of Andersen & Associates, West Des Moines for appellee.

Heard by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.

GREER Judge

Donald and Karen Grove sued Clinic Building Company, Inc. (CBC), the owner of the parking lot where Donald Grove fell and fractured his right hip in October 2019. After filing but before trial, Donald passed away and his estate was substituted in his place. CBC moved for summary judgment which the district court granted. The estate and Karen now argue several pieces of evidence were wrongly deemed inadmissible. Because we agree with the district court that the admissible evidence did not generate a question of material fact, we affirm.

I. Background Facts and Prior Proceedings.

On March 24, 2021, Donald filed a petition alleging that in October, 2019, he was on his way to a clinic for cancer treatment. He parked in a handicap-accessible space in a nearby parking lot owned by CBC. The petition stated that when exiting the vehicle, "he stepped into an unmarked storm drain, fell over a curb, and fractured his right hip." He was taken to the emergency room, where he received weeks of care. The petition described CBC's alleged negligence in failing to design, construct, and maintain the handicap parking area. It also alleged CBC failed to warn of the area's "dangerous nature" and breached "its duty to use reasonable measures to protect the safety of [Donald] and other users of its handicapped parking area." The petition also contained Karen's claims for deprivation of Donald's companionship, aid, services, affection, and society. In June, Donald passed away; Karen was named administrator of his estate. She modified the petition to substitute Donald's estate in his place.^[1] Donald was the only known witness to his fall,^[2] but the estate offered various statements it attributed to Donald as evidence. First, there were notes in Donald's medical records, which had various comments that Donald fell when he tripped on a curb. One of those statements, made to Dr. Curtis Waite shortly after the fall, repeated Donald's explanation of the fall-"he 'tripped over his own feet,' stumbled over a curb, and landed on his right hip and right wrist.... States this was purely a mechanical fall. States he was just clumsy."^[3] CBC considered this statement an admission against interest. But other statements in the medical records on the day of the fall were offered by the estate to show CBC's negligence, including that "[Donald w]as coming in for radiation, fell stepping up to the curb," "[Donald] was on his way today to have radiation his third out of 5 treatments when he tripped on the curb and fell and fractured his right hip," and "[Donald] tripped coming to the hospital today to get radiation treatment." Then about a week later, a note in the medical record stated Donald "was on his way to his radiation therapy appointment when he tripped on a curb, fell, and suffered a right hip fracture." On top of the medical records, the estate also offered a recording of a statement Donald made to an insurance adjuster from CBC's insurer in March 2021; he told the insurance adjuster:

I went to get up on the, the sidewalk, and the next thing I know I'm, I'm on the ground. .... . . . I just got out of the car by the round intake and went to step up. I didn't realize the sidewalk had a step up on it, and I ended up on the ground. The other places I had parked were level. ....

I think the sidewalk being too high there [caused me to fall].

The estate also certified an expert-Dr. Arvid Osterberg, a professor of architecture at Iowa State University-who compiled a report on the incident based on his observations of the parking lot and the recorded statement from Donald. Dr. Osterberg provided an affidavit containing two excerpts from his report. The first excerpt said:

It is evident from Mr. Grove's recorded statements that he did not anticipate the high step up that he encountered. He may have caught the toe of his shoe on the edge of the curb as he stepped up the unexpectedly high step. He may also have caught the toe of his shoe in one of the two-inch-wide square holes in the drain cover. It is also possible that he lost his footing as he stepped up due to the sloped surface near the drain cover. Regardless of exactly what happened, the location was unsafe and did not comply with [Americans with Disabilities Act] Requirements.

The second excerpt provided:

The unsafe conditions caused Mr. Grove to misstep, fall and suffer serious injuries. Had the parking lot been properly designed, constructed, and maintained, and/or had proper warning of the hazardous locations been present, it is more likely than not that Mr. Grove would have not fallen and suffered serious injuries.

CBC moved for summary judgment, claiming the estate failed to provide any admissible evidence supporting its claim it was the negligence of CBC that caused Donald's fall. It argued that the notes in Donald's medical records and statements to the insurance adjuster were inadmissible hearsay;^[4] and while it agreed the statement to Dr. Waite was admissible as an admission by a party opponent,^[5] the statement supported its assessment that the injury was caused by Donald's clumsiness rather than CBC's negligence. It also argued that Dr. Osterberg's opinion about the cause of Donald's fall was inadmissible because it was based on inadmissible evidence and the estate did not establish the recorded statement was the type of evidence typically relied upon by experts in his field. So, there was no admissible evidence that could establish that CBC's alleged negligence was the cause of Donald's fall. The estate argued the medical record notes were admissible as statements made for a medical diagnosis or treatment, or under the residual hearsay exception. Further, it believed the recorded conversation with the insurance adjuster would also be admissible under the residual hearsay exception or under Iowa Rule of Evidence 5.703^[6] because the recording was used by Dr. Osterberg in forming his expert opinion.

The district court granted CBC's motion for summary judgment. The estate appealed.

II. Analysis.

We review the district court's grant of summary judgment for correction of errors at law. Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 800 (Iowa 2019). "Summary judgment is proper when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law." Id. (citation omitted). "We view the record in the light most favorable to the nonmoving party." Id. (citation omitted). And we "draw all legitimate inferences the evidence bears that will establish a genuine issue of material fact." Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d 540, 545 (Iowa 2018) ("A legitimate inference is 'rational, reasonable, and otherwise permissible under the governing substantive law.'" (citation omitted)). Still, "the resisting party may not rest on mere allegations in its pleadings but rather must set forth specific material facts showing that a genuine disputed issue exists for resolution at trial." Buboltz v. Birusingh, 962 N.W.2d 747, 754 (Iowa 2021).

"Motions for summary judgment must also be decided based on admissible evidence." Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 106 (Iowa 2012); see also Kindig v. Newman, 966 N.W.2d 310, 322 (Iowa Ct. App. 2021) ("While evidence need not be in an admissible form at the summary judgment stage, its content must be admissible. Here, [plaintiff] sought to avoid summary judgment by relying on his own deposition testimony about what other people told him about [the premises]. These statements were inadmissible hearsay. [Plaintiff] could not have testified about those statements at trial. So they could not provide a basis to avoid summary judgment." (internal citations omitted)). We evaluate the evidence the estate offers-(1) statements in the medical records, (2) statements made to Dr. Waite, (3) the recorded statement to the insurance adjuster, and (4) Dr. Osterberg's affidavit-to determine what is admissible and if that admissible evidence establishes a genuine issue of material fact.

A. Admissibility.

The district court determined that the statements Donald made to Dr. Waite that are recorded in his medical records are admissible evidence. A collection of other statements in Donald's medical records, the recorded call to the insurance agent, and the affidavit from Dr. Osterberg, however, were ruled inadmissible. We consider the admissibility of these three pieces of evidence before determining if the evidence generated a genuine issue of material fact.

i. Medical Records.

At different times throughout his treatment for the hip fracture, three doctors and one nurse entered notes into Donald's medical record stating Donald "fell stepping up the curb," "tripped on the curb and fell," "tripped on the curb, fell," and "tripped coming to the hospital today." CBC challenged these statements as lacking foundation to establish they were made by Donald and contended that, even if proper foundation was laid, the statements are inadmissible hearsay. See Iowa Rule of Evid. 5.801 (defining hearsay as "a statement that . . . [t]he declarant does...