No. 4-324 / 03-1553.Court of Appeals of Iowa.
June 23, 2004.
Appeal from the Iowa District Court for Union County, William H. Joy, Judge.
Defendant, Moingona Girl Scout Council of Central Iowa, appeals from the district court’s denial of its motion for judgment notwithstanding the verdict in favor of the plaintiff in a wrongful death action. AFFIRMED.
Mark Thomas and Anita Dhar of Grefe Sidney, P.L.C., Des Moines, for appellant.
Peter Berger, John Gajdel, and Robert Rehkemper of Berger
Gajdel, P.C., Urbandale, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
ZIMMER, J.
Defendant, Moingona Girl Scout Council of Central Iowa (Girl Scout Council), appeals from the district court’s denial of its motion for judgment notwithstanding the verdict entered by the jury in favor of plaintiff in a wrongful death action. The Girl Scout Council contends the jury’s award for the present worth of the value of Brittney’s estate was not supported by sufficient evidence. We affirm.
I. Background Facts Proceedings
On March 22, 2002, Fawn Miller took her nine-year-old daughter, Britteny Bronnenberg, to the Southern Prairie YMCA in Creston, Iowa (YMCA) to participate in an overnight lock-in sponsored by the Girl Scout Council. When Fawn dropped Britteny off at the YMCA she told a representative of the Girl Scout Council that Britteny could not swim. The representative informed Britteny’s mother there were lifeguards on duty and that lifejackets would be provided.
During the lock-in the girl scouts participating in the event had access to the different areas of the YMCA. Sometime after 10 p.m. Britteny went to the pool area. At around 11 p.m. Britteny either slipped or jumped off the diving board located in the deep end of the pool. The lifeguard monitoring the pool area did not realize that Britteny was at the bottom of the pool until some children told him. When the lifeguard finally pulled Britteny from the pool she appeared to be unconscious. Britteny was pronounced dead on March 23, 2002, at 12:19 a.m.
On May 15, 2002, Britteny’s mother filed a wrongful death action, individually and as administrator of Britteny’s estate. The suit named the YMCA and the Girl Scout Council as defendants. The YMCA settled with the plaintiff during trial. The case went forward against the Girl Scouts and the jury returned a verdict for the plaintiff in the amount of $427,000.[1] On July 28, 2003, the Girl Scout Council moved for judgment notwithstanding the verdict claiming the evidence did not support the jury’s decision to award $175,000 for the present worth of the value of Britteny’s estate. The district court denied the motion. This appeal followed.
II. Standards of Review
We review the district court’s denial of a motion for judgment notwithstanding the verdict for correction of errors at law. Iowa R.App.P. 4. We view the evidence in the light most favorable to the party against whom the motion was made and take into consideration every legitimate inference that may fairly and reasonably be made. Willey v. Riley, 541 N.W.2d 521, 526 (Iowa 1995). If substantial evidence supports the claim, the motion will be denied. Johnson v. Dodgen, 451 N.W.2d 167, 171 (Iowa 1990). “Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.” Id. “The assessment of damages is traditionally a jury function. Its decision should be disturbed only for the most compelling reasons.” Pagitt v. City of Keokuk, 206 N.W.2d 700, 704 (Iowa 1973).
III. Discussion
The plaintiff first contends the Girl Scout Council did not preserve error on its claim because it failed to move for a directed verdict at the close of the plaintiff’s case or at the close of all of the evidence. We agree with the plaintiff’s contention that our preservation rule requires that an issue must be presented to and passed upon by the district court before it can be raised and decided on appeal. Metz v. Amoco Oil, Co., 581 N.W.2d 597, 600 (Iowa 1998). Although the Girl Scout Council did not move for a directed verdict based on the claim it presents on appeal, the record reveals the issue was presented to and passed on by the trial court. Defense counsel made a particularized objection to the submission of Jury Instruction Number 16, paragraph 3, and to Question Number 8, Answer 3, of the Verdict Form before submission of this case to the jury. Defense counsel claimed the evidence presented during trial was insufficient to allow the jury to consider the accumulation of the estate in this case. Counsel then reasserted his claim in a motion for judgment notwithstanding the verdict. We conclude error was preserved.
Regarding the merits of the defendant’s claim, we conclude that the plaintiff presented sufficient evidence to support the jury’s award of damages for the present worth of the value of Britteny’s estate. The measure of damages in cases of this kind is the present worth or value of that which the decedent would reasonably be expected to save and accumulate as a result of her efforts if she had lived out the natural term of her life Brophy v. Iowa-Illinois Gas and Elec. Co., 119 N.W.2d 865, 866, 254 Iowa 895, 897 (Iowa 1963). Our Supreme Court has acknowledged that this measure of damages is necessarily somewhat of an approximation with each case turning on its own facts. Id. The amount of uncertainty is even greater when the loss to an estate is due to the wrongful death of a child. However, this reason alone should not deny the estate any recovery. See Tedrow v. Fort Des Moines Cmy. Serv., Inc., 117 N.W.2d 62, 67, 254 Iowa 193, 202 (Iowa 1962). Any uncertainty as to the amount should be resolved against the wrongdoer, not its victim. Pagitt, 206 N.W.2d at 705.
In its ruling denying the defendant’s motion, the district court stated:
Now, after the jury had returned its verdict, this court is confident from a review of the entire verdict and the conduct of the trial, that the award is not flagrantly excessive or inadequate; does not shock the conscience or sense of justice; was not the result of passion, prejudice or other ulterior motive; and does not lack evidential support.
Upon review of the record, we agree with the trial court’s conclusions. Britteny’s mother, her stepfather, and one of her teachers described Britteny to the jury. The evidence showed that Britteny was an intelligent child who received excellent grades, with near perfect school attendance. She loved science, was computer literate, and had already established career goals. Britteny was well liked by her peers and was in good health. From this evidence and other evidence offered at trial a reasonable jury could conclude that the present worth of the value of Britteny’s estate was $175,000. Because we find the jury’s verdict was supported by substantial evidence, the district court properly denied the Girl Scout Council’s motion for judgment notwithstanding the verdict. Accordingly, we affirm.
AFFIRMED.