Kimberly Ransdell v. Huckleberry Entertainment, LLC

IN THE COURT OF APPEALS OF IOWA

No. 19-0545
Filed September 23, 2020

KIMBERLY RANSDELL,
Plaintiff-Appellant,

vs.

HUCKLEBERRY ENTERTAINMENT, LLC,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse,

Judge.

An injured customer appeals the denial of her motion for new trial in a

negligence suit. AFFIRMED.

Steven J. Crowley, Edward J. Prill, and Andrew L. Mahoney of Crowley &

Prill, Burlington, for appellant.

Clark I. Mitchell of Grefe & Sidney, P.L.C., Des Moines, for appellee.

Considered by Tabor, P.J., and May and Greer, JJ.
2

GREER, Judge.

A picture is worth a thousand words, although here, we have a video—a

series of pictures. And the jury charged with following the evidence to a verdict

viewed the video of Kimberly Ransdell’s go-kart adventure several times. Because

the fun ended with a crash, Ransdell sued Huckleberry Entertainment, LLC

(Huckleberry) after she fractured her tailbone on a go-kart track at the company’s

facility known as Fun City. After considering the real-time action video and the

other evidence, a jury found Ransdell fifty-one percent at fault, barring her from

any recovery. She now challenges the denial of her motion for new trial. Ransdell

contends that, after granting her motion in limine foreclosing Huckleberry’s

evidence of comparative fault, the district court wrongly allowed Huckleberry to

argue that affirmative defense in closing. She argues the district court

compounded its error by instructing the jury on comparative fault. We find no error

and affirm the district court ruling denying Ransdell’s motion for new trial.

I. Facts and Prior Proceedings

Ransdell and her family went go-kart racing at Fun City to celebrate her

birthday in November 2016. Ransdell alleges before the race that Fun City

employees did not provide instructions on how to drive the go-karts or any safety

procedures. But Fun City did have signs posted around the track warning

customers not to bump each other with the karts and that anyone suffering neck

or back pain should not participate. According to Ransdell, during the race the Fun

City employees did not monitor the track and remained silent as the go-karts began

to cluster and bump into each other. Ransdell recalled that she was “going around

the turn” when one kart hit her from the side and another from the back, spinning
3

her into the barrier surrounding the track. She testified, “I flung forwards, and I

screamed because I felt it pop.” After the crash, Ransdell’s family took her to a

hospital where she learned she fractured her tailbone.

Alleging persistent pain in her tailbone, shoulder, hips, and legs, Ransdell

sued Huckleberry for negligence in May 2017. She sought damages for medical

expenses, lost income, pain and suffering, and partial loss of future function.

During discovery, Ransdell sent interrogatories asking Huckleberry to “[s]tate in

detail the facts and circumstances . . . allege[d] to support any affirmative defense

to liability in this case.” Huckleberry responded with the conclusory statement,

“Ransdell was contributorily negligent or at fault, such that her negligence or fault

will bar Plaintiff from any recovery or reduce any recovery proportionally in

accordance with Iowa Code chapter 668.” Because Huckleberry never

supplemented that statement with “facts and circumstances,” as a sanction,

Ransdell moved in limine to prevent Huckleberry from introducing evidence of

comparative fault at trial.

The district court sustained the motion the day before trial. In doing so, the

court recognized its decision to exclude evidence of comparative fault “could have

the effect of altering the Plaintiff’s case.” Yet leaving the door ajar, the court added

it was “aware that issues of negligence will overlap at times with comparative fault

and those issues will be addressed during trial.” The court’s prediction would prove

true.

A jury trial began in mid-January 2019. After hearing Ransdell’s evidence,

the district court evaluated the applicability of the comparative-fault defense to the

law of the case. Before the trial ended, the district court suggested to counsel that
4

comparative fault would likely be submitted to the jury. In its order, the court

clarified the objective of the motion in limine was to control matters of evidence in

advance to avoid disclosing prejudicial material to a jury. The court found that

Ransdell, rather than Huckleberry, presented evidence justifying submission of

comparative fault to the jury. In justifying its decision to allow Huckleberry to argue

comparative fault and the accompanying instruction, the court pointed to testimony

about go-kart racing having inherent risk; testimony the driver has control over the

speed, steering, and braking of the go-kart; photographs of the track that included

warning signs; and a cell-phone video of the accident. The court also considered

Ransdell’s own testimony that she had driven on the track before and that she

suffered from multiple sclerosis.

After presentation of this evidence bearing on the comparative fault issue,

the court granted Huckleberry clearance to raise the affirmative defense for the

first time during closing arguments and the court instructed the jury on comparative

fault. Anticipating the written ruling and before resting her case, Ransdell recalled

a Huckleberry employee to the witness stand. On direct examination, Ransdell

informed the jury that Huckleberry believed Ransdell was at fault, but she clarified

that the company failed to reference any specific act of negligence by Ransdell in

its interrogatory answer. In doing so, Ransdell inserted Huckleberry’s allegation

of comparative fault into the evidence without preserving her position on the record

that she only raised the issue of comparative fault because of the court’s

anticipated ruling. Yet, before resting, Ransdell did not require a ruling on the

pending comparative-fault issue. Huckleberry offered no evidence in the trial.
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After being instructed that “[d]amages may be the fault of more than one

person,” the jury returned a verdict finding Huckleberry forty-nine percent at fault

and Ransdell fifty-one percent at fault for her injures. Because the jurors found

Ransdell more than fifty percent at fault, they awarded no damages. Ransdell

moved for a new trial, claiming her substantive rights were materially affected

based on legal error in the proceedings. The district court denied the motion for

new trial, and Ransdell now appeals.

II. Scope and Standards of Review

Iowa Rule of Civil Procedure 1.1004 governs motions for new trial. That

rule sets out nine possible grounds available to an aggrieved party when an error

“materially affected movant’s substantial rights.” Iowa R. Civ. P. 1.1004. Our

standard of review for a new-trial ruling depends on the grounds raised in that

motion. Olson v. Sumpter, 728 N.W.2d 844, 848 (Iowa 2007). If the motion

addresses a discretionary ground,1 we review for an abuse of discretion; if the

motion depends on legal grounds,2 we review for errors at law. Fry v. Bauvelt, 818

N.W.2d 123, 128, 129 (Iowa 2012).

Ransdell asserts several grounds for a new trial under Iowa Rule of Civil

Procedure 1.1004, including (1) “[i]rregularity in the proceedings,”

(2) “[m]isconduct,” (3) “[a]ccident or surprise,” (6) insufficient evidence, and

(8) “[e]rrors of law occurring in the proceedings.” Ransdell concedes all of her

grounds for new trial “almost entirely revolve around the introduction of

1 Denial of a motion involving claims of misconduct, accident, and surprise are
viewed for an abuse of discretion.
2 Denial of a motion related to sufficiency of the evidence, legal error, or a directed

verdict are reviewed for correction of errors at law.
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comparative fault after the close of evidence.” Thus, her primary complaint centers

on the district court’s decision to allow Huckleberry to argue comparative fault in

closing arguments and instruct the jury on that affirmative defense. She also asks

for new trial under Iowa Rule of Civil Procedure 1.1003(2), claiming the district

court erred by refusing to grant her motion for directed verdict.3 She argues the

district court erred as matter of law because the record lacked substantial evidence

to support giving those jury instructions.

A new trial motion based on a discretionary ground is reviewed for an abuse

of discretion. Loehr v. Mettille, 806 N.W.2d 270, 277 (Iowa 2011). “An abuse of

discretion consists of a ruling which rests upon clearly untenable or unreasonable

grounds.” Lawson v. Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010). An

“unreasonable” decision is one that is not based on substantial evidence.

Channon v. United Parcel Serv. Inc., 629 N.W.2d 835, 859 (Iowa 2001). “In ruling

upon motions for new trial, the district court has a broad but not unlimited discretion

in determining whether the verdict effectuates substantial justice between the

parties.” Iowa R. App. P. 6.904(3)(c). And we are “slower to interfere with the

grant of a new trial than with its denial.” Iowa R. App. P. 6.904(3)(d). Still, unless

a different result would have been probable absent misconduct, a new trial is not

warranted. Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992).

“Because the sufficiency of the evidence presents a legal question, we

review the trial court’s ruling on this ground for the correction of errors of law.” Fry,

3 Again the basis for the directed verdict motion was the lack of substantial
evidence of comparative fault, which Ransdell acknowledged was a “parallel”
argument to her position on the motion for new trial request.
7

818 N.W.2d at 128 (citation omitted). “A party is entitled to have an adverse

decision vacated and a new trial granted if errors of law occurred in the

proceeding.” Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 544 (Iowa 1997)

(citing Iowa R. Civ. P. 1.1004(8) (then numbered rule 244(h))); see also Baysinger

v. Haney, 155 N.W.2d 496, 499 (Iowa 1968) (“[T]he trial court has before it the

whole scene, the action and incidents of the trial as they occur, and is in a much

better position to judge whether the defendant has been prejudiced by misconduct

of opposing counsel, if there is such.”) Although insufficient evidence and the

failure to effect substantial justice are independent grounds for challenging a jury

verdict, we discuss them together because Ransdell’s arguments in support of

both claims are identical. Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690

N.W.2d 84, 87 (Iowa 2004).

III. Analysis

In this appeal, each arrow in Ransdell’s quiver points to two questions.

First, did the district court court reverse course on the motion in limine ruling after

presentation of most of the evidence by Ransdell and, if so, did it materially affect

Ransdell’s substantial rights? Second, was there substantial evidence of

Ransdell’s fault twarrant a comparative fault instruction?

A. Did the district court’s reversal of the limine ruling materially affect

Ransdell’s substantial rights?

Ransdell contends that the trial court made an error of law in the

proceedings that prejudiced her case. She frames the error as occurring at the

end of the trial. Put simply, after precluding Huckleberry from introducing any

evidence of Ransdell’s fault in the trial, the district court changed course so that
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Huckleberry could argue comparative fault in closing and instructed the jury on

comparative-fault law. Arguing the court reversed the limine ruling, Ransdell raises

issues of irregularity of the trial court and unfair surprise to her. She also points to

misconduct by Huckleberry. She urges the appeal of this prejudicial ruling

constitutes an issue of first impression in Iowa. We are not convinced.

We recognize, as Ransdell notes, this case is complicated by the fact that

the district court at first granted her request to restrict Huckleberry from advancing

the affirmative defense of comparative fault. But, Ransdell’s counsel recognized

the care necessary when presenting the evidence to avoid violating the limine

order and “opening the door” to allowing evidence of comparative fault.4 For

example, during Ransdell’s testimony, she claims her counsel avoided going into

specifics about how she operated the go-kart. She also emphasizes the prejudice

she suffered based on the district court’s decision to reverse course on submission

of comparative fault so late in the trial.

All the same, the district court maintained its limine ruling, and Huckleberry

never presented comparative-fault evidence. And, while a motion in limine

provides guidance during the trial, it is not always the roadmap to the end. Instead,

4 [T]he doctrine of ‘opening the door’ is a reference to situations in
which the admission into the record of admissible evidence is a
prerequisite for introduction of other evidence. A party opens the
door by offering admissible evidence that in turn triggers admissibility
of responsive evidence by an opposing party.
State v. Huser, 894 N.W.2d 472, 507 (Iowa 2017). Here, the district court referred
to “curative admissibility.” “The doctrine of curative admissibility, however, only
applies when inadmissible evidence has been entered into the record and the other
party seeks to admit further inadmissible evidence to cure the error. This is what
is colloquially referred to as the ‘fight fire with fire’ theory.” Id. at 506–07. Here,
the issue is if the admissible evidence offered by Ransdell supports a legal
defense.
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a ruling sustaining a motion in limine simply acts as a procedural step to the

introduction of allegedly objectionable evidence. Quad City Bank & Tr. v. Jim

Kircher & Assocs., P.C., 804 NW.2d 83, 89 (Iowa 2011). But “[g]enerally, the

district court’s ruling on a motion in limine is not subject to appellate review

because the error, if any, occurs when the evidence is offered at trial and is either

admitted or refused.” Wailes v. Hy-Vee, Inc., 861 N.W.2d 262, 264 (Iowa Ct. App.

2014). If the ruling is “unequivocal and leaves no question that the challenged

evidence will or will not be admitted at trial,” the issue is preserved for appellate

review. Id.

When a district court does not make an unequivocal ruling in limine

regarding the admissibility of evidence and instead signals that issues might be

addressed related to the evidence when a party actually wants to present the

evidence at trial, the party must object to the evidence to preserve error. Estate of

Casteel by & through Hutt v. Wray, No. 17-1504, 2018 WL 4635695, at *4 (Iowa

Ct. App. Sept. 26, 2018) (noting the district court sustained the limine motion on

certain evidence but confirmed it would make appropriate rulings when the other

evidence was presented during trial). Here, in the ruling on the motion in limine,

the district court warned “that issues of negligence will overlap at times with

comparative fault and those issues will be addressed during trial.” Huckleberry

complied with the ruling, but Ransdell’s evidence—not Huckleberry’s—overlapped

into the lane of comparative fault without objection.

On our review of the record, that overlap into comparative fault came at four

key points. First, photographs of the venue showed warning signs directed to the

participants. Ransdell proved those warnings. Second, a jury could find the video
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of the incident showed Ransdell driving with her brake foot off the brake and

outside the go-kart despite posted warning signs that stated, “Keep arms and legs

in kart at all times,” and “Arms & Legs in Karts AT ALL TIMES.” Ransdell submitted

that video and signage evidence. Third, a jury could find that Ransdell bumped

into the go-kart in front of her in violation of the warnings directing “NO bumping—

EVER!!” and “NO BUMPING.,” from the “real time” video evidence offered by her

in this trial. And finally, after testifying about pre-existing neck and back problems,

a jury could find Ransdell failed to heed the warning she provided the jury: “If you

are pregnant, experiencing neck or back pain or have heart problems, please do

not operate a go-kart.”

With this evidence in the record, the limine ruling is moot. “We have said a

party cannot complain on appeal of evidence which the party, himself, introduced

into the record.” Mercer v. Chi, 282 N.W.2d 697, 701 (Iowa 1979) (challenging

lung scans introduced through complaining party’s own expert); see, e.g., 1

McCormick on Evidence § 54 (8th ed. Jan. 2020 update) (“If the testimony is

received without objection, the testimony becomes part of the evidence in the case

and is usable as proof to the extent of its rational persuasive power.”). Contrary to

her assertion, before Ransdell closed her case, she had some notice that

comparative fault would be argued to the jury and what possible specifications of

negligence might be alleged.5 With that knowledge, she called an employee of

5 Eleven days before the start of trial, in a proposed jury instruction, Huckleberry
offered these specifications of fault against Ransdell:
1. Ransdell was at fault. In order to prove fault, Huckleberry
Entertainment must prove:
a. Ransdell failed to keep a proper lookout when operating her
go-kart; or
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Huckleberry in her case and pointed to the company’s answer to an interrogatory

on comparative fault. Ransdell’s counsel addressed the employee:

Q. The interrogatory posed to your employer was, number 18,
state in detail the facts and circumstances you allege to support any
affirmative defense to liability in this case including but not limited to
an affirmative defense allegation defense such as comparative fault
of the Plaintiff or anyone else in any form; preexisting condition of the
Plaintiff; D, that the Plaintiff failed to mitigate damages; assumption
of risk in any form, or any contractual defense based on any ticket,
posting, contract release or any other form of contract. Did I read
that correctly, although a little rough? A. Yes—yes, sir.
Q. And then it says answer. What was the answer that you
provided us in—well, not you, but Fun City gave us in November of
2017? A. Plaintiff Kimberly Ransdell was contributorily negligent or
at fault such that her negligence or fault will bar Plaintiff from any
recovery or reduce any recovery proportionately in accordance with
Iowa Code Chapter 668.
Q. In addition to that did Fun City—that’s the entire answer,
isn’t it? A. Yes.
Q. Is there any mention in there of any facts or circumstances
in the answer? A. Not to my knowledge.
Q. Is there any criticism in that sworn answer of how she drove
her car—or kart? A. No.
Q. Is there any criticism in that answer of how anybody else
around her drove their kart? A. No.
Q. Is there any criticism in there about her failing to follow
instructions or notice a sign? A. No.
Q. Is there any mention of any facts or circumstances in that
answer that points to some preexisting problem in her coccyx? A.
No.

Although the employee admitted that no specific complaints of negligence were

set out in the interrogatory answer, Ransdell raised the defense of comparative

fault to the jury, not Huckleberry.

b. Ransdell failed to obey the safety rules posted; or
c. Ransdell failed to maintain control of the speed or direction
of her go-kart; or
d. Ransdell failed to locate, read, and understand the posted
medical requirements.
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Once the district court weighed the evidence, the next step was to look

forward to the law of the case—the instructions. We find no error by the district

court related to the motion in limine ruling. As to the appropriate law of the case,

we find the district court’s reasoning persuasive:

[Ransdell] has brought in the warning signs, the photographs, so I
mean all those issues of comparative fault have already been
brought up by [Ransdell] in this case, and fairly enough through the
experts and other testimony, so, you know, it’s just like what’s left of
that anymore? I mean, I’m supposed to instruct the jury that didn’t
exist? Because the defense didn’t bring it up, the Plaintiff did. So
that’s going to be a troubling issue in this case.

Thus, Ransdell’s arguments about irregularity in the proceedings, misconduct, and

accident or surprise fail.

But with yet another arrow, Ransdell also argued a new trial was warranted

because of Huckleberry’s counsel’s misconduct. She speculates that Huckleberry

purposely hid its comparative fault allegations, slid in some photographs of warning

signs, got the district court to reverse the ruling on the motion in limine, and then

presented their “exact theory” in closing. Nevertheless, Ransdell failed to prove

misconduct through speculation. Instead, because of the nature of the case, their

mutual insertion of warning signs into the record is an example of negligence

overlapping into comparative fault issues. Yet Ransdell asserts Huckleberry’s

introduction of photographs of the warning signs confirms Huckleberry’s alleged

ulterior motive to insert comparative fault into the case. With some notice from

Huckleberry’s proposed instructions about failure to obey warning signs, the

photographs of the signage were admitted without any objection from Ransdell.

Indeed, Ransdell introduced warning-sign concerns through one of her experts.

So had Huckleberry not offered warning sign photographs, Ransdell is unable to
13

show “a different result would have been reached but for the claimed misconduct

of counsel for the prevailing party” since, again, she submitted that evidence.

Mays, 490 N.W.2d at 803 (citation omitted) (finding court did not abuse discretion

by denying motion for new trial despite counsel’s repeated injection of prior claims

made by plaintiffs in violation of limine order).

Thus, the district court did not abuse its discretion in denying the motion for

new trial on these grounds premised as a reversal of the ruling on the motion in

limine. Now we turn to the final arrow: sufficiency of the evidence.

B. Was there sufficient evidence of Ransdell’s fault to support instructing

on comparative fault?

Ransdell contends she is entitled to a new trial because the district court

committed error by instructing the jury on comparative fault.6 She focuses on the

6 At issue are these five instructions:
Instruction No. 23:
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, and
the Defendant, and the extent of the causal relation between their
conduct and the damages claimed. You should then determine what
percentage, if any, each party’s fault contributed to the damages.
Instruction No. 24:
Defendant claims Plaintiff was at fault in the following particular:
Negligence.
The ground of fault has been explained to you in other
instructions.
Defendant must prove both of the following propositions:
1. The Plaintiff was at fault. In order to prove fault, Defendant
must prove:
(a) Plaintiff failed to keep a proper lookout when operating her
go-kart;
(b) Plaintiff failed to obey the safety rules posted; or
(c) Plaintiff failed to maintain control of the speed or direction
of her go-kart; or
14

lack of substantial evidence supporting the instructions on that affirmative defense.

A district court cannot instruct on “an issue having no substantial evidential support

or which rests on speculation.” Thompson v. City of Des Moines, 564 N.W.2d 839,

846 (Iowa 1997) (citation omitted). “Substantial evidence is that which a

reasonable person would find adequate to reach a conclusion . . . .” Bredberg v.

Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). When a party challenges the

sufficiency of evidence to support the jury’s factual findings, we examine the record

(d) Plaintiff failed to locate, read, and understand the posted
medical requirements.
2. Plaintiff’s fault was a cause of her damage.
If the Defendant has failed to prove either of these
propositions, Defendant has not proved its defense. If Defendant
has proved both of these propositions, then you will assign a
percentage of fault against the Plaintiff and include Plaintiff’s fault in
the total percentage of fault found by you in answering the special
verdicts.
Instruction No. 25:
“Proper lookout” is the lookout a reasonable person would keep in
the same or similar situation. 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.
Instruction No. 26:
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 by another party in order to avoid an injury, then they
are under a duty to take such action.
In this case, the Defendant claims the Plaintiff unreasonably
failed to take action to avoid an injury because she failed to keep a
proper lookout and failed to exercise reasonable care for her own
safety.
Instruction No. 27
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, then 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
her fault.
15

to determine whether those findings are supported by substantial evidence. City

of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16 (Iowa 2000). In

determining whether the evidence supporting an instruction is substantial, we give

the most favorable construction possible for the party urging submission. Hoekstra

v. Farm Bureau Mut. Ins. Co., 382 N.W.2d 100, 108 (Iowa 1986). Finally, questions

of negligence are for the jury. Iowa R. App. P. 6.904(3)(j).

Ransdell argues no witness or expert testified or offered any substantial

evidence to support the submission of comparative fault instructions to the jury.

By statute, fault means “one or more acts or omissions that are in any measure

negligent or reckless toward the person or property of the actor or others.” Iowa

Code § 668.1(1) (2017). And in the instructions, the jury learned “negligent” meant

“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.” To prove comparative fault, Huckleberry had to

show a causal connection between Ransdell’s fault and her claimed damages.

See Iowa Code §§ 668.1(2) (“The legal requirements of cause in fact and

proximate cause apply both to fault as the basis for liability and to contributory

fault.”), 668.3(3) (“In determining the percentages of fault, the trier of fact shall

consider both the nature of conduct of each party and the extent of the causal

relation between the conduct and the damages claimed.”); see also Greenwood v.

Mitchell, 621 N.W.2d 200, 205 (Iowa 2001) (holding burden rests on defendant to

prove plaintiff’s fault for failing to mitigate damages).

All the same, even Ransdell recognized she could “open the door” to an

argument about comparative fault through the presentation of her case. Likewise,
16

she also concedes that if there is substantial evidence to support a legal issue the

court can instruct the jury on the law. As discussed, the district court pointed to

“evidence put into the record” by Ransdell as prompting its “duty to instruct” on

comparative fault. Those aspects included: (1) witness testimony about the

inherent risk in go-kart racing, (2) photographs of warning signs on the track, and

(3) a cell-phone video of the accident showing the go-karts racing in close

proximity. The court also mentioned Ransdell’s testimony that (4) she had driven

on the go-kart track before and (5) suffered from multiple sclerosis. So did this

evidence offer substantial proof such that a reasonable juror could weigh the

comparative fault of Ransdell?

Here, it was fortuitous that the accident was captured on video. With the

video in hand, Ransdell had the choice to play it or simply have the witnesses

explain what happened in the accident through testimony. Notably, Ransdell

posits the video showed she was struck from behind and provides no evidence of

her fault. But after reviewing the “real time” video of the go-kart accident, a jury

could have found, as it did, that Ransdell created the situation she found herself

in. From the evidence, the jury could find that Ransdell did not have her foot on

the brake but instead kept her foot on top of the vehicle as she drove the track.

The jury could also find that the accident sequence began when Ransdell tapped

the back of the vehicle that was in front of her. In fact, William Avery, the expert

for Ransdell, noted in his admitted report that the Ransdell accident was very much

like another accident where that driver ran into the back of the vehicle ahead of

her causing the accident. A video is often the best evidence of the accident as

opposed to someone describing it. To understand the sequence of events at issue
17

here, one cannot imagine any better evidence of the actor’s fault other than

observing the race over and over in real time.

Reviewing the evidence in the light most favorable to Huckleberry, there

was substantial evidence to support submission of comparative fault to the jury.

See Hoekstra, 382 N.W. 2d at 108. This case is not complicated. A juror can

understand what constitutes appropriate behavior while driving a go-kart. Often,

jurors have the task “to sort through the disputed and undisputed facts and to

accept or reject any testimony.” Wagner v. State, No. 13-0931, 2014 WL 5243340,

at *3 (Iowa Ct. App. Oct. 15, 2014); see also Casteel, 2018 WL 4635695 at *3

(finding substantial evidence where jurors had to weigh the evidence even though

there were no direct witnesses to the accident leaving many facts disputed).

Ransdell challenges the district court’s consideration of the inherent risk

testimony by expert Avery as support for the inclusion of comparative fault into the

case. The district court discussed the testimony of Avery, an expert on

amusement-ride safety. True, Avery acknowledged an “inherent risk” in go-kart

racing. But he also compared the go-kart racing to driving on a highway in a more

controlled environment. Ransdell’s strategy raised the risk of go-karting but sought

to draw focus to the track procedure necessary to alleviate the risk. In doing so,

Avery emphasized the importance of “an attentive track attendant” to mitigate the

risks of the karts running into each other. In Avery’s opinion, Fun City employees

followed a “poor safety procedure.” Ransdell argues nothing in Avery’s testimony

opened the door to a comparative-fault defense. See Ludman v. Davenport

Assumption High Sch., 895 N.W.2d 902, 914 (Iowa 2017) (“A plaintiff who is

actually aware of a reasonable risk and voluntarily undertakes it . . . is not
18

negligent.” (quoting Restatement (Third) of Torts: Apportionment of Liability § 3

cmt. c (Am. Law Inst. 2000))). Still, Ransdell’s knowledge of the inherent risk is

important in determining whether a “court will allow the jury to find plaintiff has

some degree of contributory fault.” Id. But even if Avery’s testimony alone did not

compel the district court’s decision to allow the jury to consider comparative fault,

we find there was more support.

And the “more” came from Ransdell’s case. Together with the video, the

district court mentioned the testimony about Ransdell’s experience at the go-kart

track and her acknowledgment that she had been diagnosed with multiple

sclerosis, which may have been relevant to the jury’s calculation of damages but

did not directly speak to her negligence. Her experience at the track, coupled with

the warning signs explaining proper behavior, gave jurors evidence to evaluate the

actions of a reasonable person in similar circumstances. Likewise, a jury could

weigh her choice to participate with her previous back and neck issues.

Under the rules of civil procedure, we grant a new trial only if that cause

materially affected Ransdell’s substantial rights. See Iowa R. Civ. P. 1.1004. We

find Ransdell cannot meet that prejudice standard. According to Ransdell, had

she known the court would instruct the jury on comparative fault, she would have

tried her case differently. As for her strategy, she learned that comparative fault

was off the table just a day before trial started but had some inkling of

Huckleberry’s theme before trial.7 The district court noted, “On the issue of

7 Eleven days before the start of trial in a proposed jury instruction, Huckleberry
offered these specifications of fault against Ransdell:
1. Ransdell was at fault. In order to prove fault, Huckleberry
Entertainment must prove:
19

surprise or prejudice to [Ransdell], it is hard to claim surprise or prejudice from the

evidence [she] in this case chose to put on.” While not a model of how a trial

should proceed, trials often involve shifting strategies directed by evidence offered

in real time.

Ransdell argues that the video was not introduced to show comparative

fault but was played to show a breach in the standard of care at the go-kart facility.

She argues the video had to be played to show that breach and “that accident

caused the injury.” But we can think of no better evidence showing the negligence

of a party than a video of the event. And we find that the video opened the door

to the question of whether Ransdell was a cause of the accident. See Mercer, 282

N.W.2d at 701. Often the video answers the question. Because the video was

played so many times, it emphasized its importance. And rather than hearing from

an eyewitness who saw the event once, the jurors saw the event many times. As

a result, a reasonable juror had substantial information about how the accident

occurred. Viewing the evidence in the light most favorable to the verdict, we find

the video and other evidence noted above offered substantial evidence from which

a jury could find Ransdell at fault. See Kinseth v. Weil-McLain, 913 N.W.2d 55, 75

(Iowa 2018). With a party’s possible contribution to the accident and her injuries

a. Ransdell failed to keep a proper lookout when operating her
go-kart; or
b. Ransdell failed to obey the safety rules posted; or
c. Ransdell failed to maintain control of the speed or direction
of her go-kart; or
d. Ransdell failed to locate, read, and understand the posted
medical requirements.
20

in the record, it would be error to not instruct on comparative fault if supported by

substantial evidence. Hoekstra, 382 N.W.2d at 107-08.

After weighing the sufficiency of the evidence to support the comparative

fault instructions, we find that a reasonable juror could accept it as adequate to

reach the conclusions found in this verdict. We affirm the ruling on the motion for

new trial.

AFFIRMED.

May, J., concurs; Tabor, P.J., dissents.
21

TABOR, Judge, (dissenting)

I respectfully dissent. Ransdell is entitled to a new trial because the district

court misapplied the “curative admissibility” doctrine and instructed the jury on

comparative fault despite Huckleberry presenting no evidence supporting that

affirmative defense.

The majority maintains the cell-phone video of Ransdell’s go-kart crash is

the key to the case. And I appreciate that sometimes a video may “speak for itself.”

See Scott v. Harris, 550 U.S. 372, 378 n.5 (2007) (finding videotape capturing

police chase contradicted driver’s version of events). But a danger exists that an

appellate court’s idiosyncratic “observation of the video [will become] an excuse

for replacing the rule of law with its ad hoc judgment.” Id. at 394 (Stevens, J.,

dissenting). The majority flirts with that danger here. After viewing the video, the

majority forges assumptions about Ransdell’s conduct that have no tie to testimony

from the trial.8

The majority believes the jurors—without expert help—could reasonably

assign Ransdell’s fault from just watching the footage that Ransdell’s husband shot

with his cell phone. I disagree. Huckleberry needed to offer the jury some context

about how Ransdell breached a standard of care in operating the go-kart and how

that operation may have contributed to her injury.

8 For example, the majority suggests the video shows Ransdell drove the go-kart
“with her brake foot off the brake.” Trial testimony did describe the go-karts having
two pedals—an accelerator on the right and a brake on the left. But no witness
testified that a driver cannot use their right foot to both accelerate and brake. And
no witness testified that Ransdell’s failure to brake with her left foot caused the
crash or her injury.
22

And what I find even more unfair is allowing the assignment of comparative

fault after the district court changed the rules toward the end of the game. At the

start of the trial, the court agreed with Ransdell’s request that Huckleberry “not be

allowed to argue” that she was responsible or partially responsible for the crash

that led to her injury. The limine ruling was an appropriate sanction for Huckleberry

failing to supplement its discovery response to provide specific allegations to

support its affirmative defense of comparative fault. See Carter v. Wiese Corp.,

360 N.W.2d 122, 136 (Iowa Ct. App. 1984) (upholding exclusion of testimony from

defense expert as discovery sanction).

Granted, the limine ruling was malleable. The district court recognized

issues of Huckleberry’s negligence could “overlap at times with comparative fault”

and promised to address those issues during trial. But playing by the rules set at

the start, Ransdell adopted a strategy based on the court’s grant of her motion in

limine. She was careful not to present evidence about her go-kart driving that

could “open the door” to comparative-fault arguments. She did not testify about

how she controlled the go-kart, and she did not call other go-kart drivers to testify

or otherwise try to reconstruct the crash for the jurors.

Yet the majority claims Ransdell’s evidence “overlapped into the lane of

comparative fault” when she played the cell-phone video of the crash during her

testimony. I disagree. Showing the video cannot justify the court’s about-face on

the discovery sanction. The video came as no surprise. More than one year before

trial, as part of discovery, Ransdell provided Huckleberry with the video. In

response to receiving the footage, Huckleberry moved to amend its answer to
23

assert the affirmative defense of comparative fault. Yet it never identified any act

or omission by Ransdell that amounted to negligence and contributed to her injury.

At the pretrial conference on Ransdell’s motion in limine, Huckleberry’s

counsel had this exchange with the court:

MR. MITCHELL: Judge, this is a go-kart accident. And so she was
driving a go-kart. We have a video of the go-kart. There’s no
surprise as to what that comparative fault may be.
....
THE COURT: But what is it, though? I mean, we’re sitting
here and you still haven’t stated what it is.
MR. MITCHELL: So it’s a go-kart accident. She’s driving her
go-kart and ultimately she crashes into this—the side of the wall.
Now, whether that was her fault or whether that was somebody else’s
fault, that’s a fact question. That’s for the jury to decide.

Ransdell’s counsel responded:

[W]hat was she supposed to have done? In that split second, when
her kart was hit by one or possibly two other karts, it flipped her
around and she went out of control, and—and I guarantee you, when
you see the accident—you haven’t seen the video yet. [S]he didn’t
have time to do anything. . . .
You can’t just say, well, she was driving the kart, therefore she
must have been negligent. I mean, that’s the problem here, we’re in
the blind.

The video was always part of the debate. From the outset, the court knew

Ransdell intended to play the video and knew Huckleberry planned to parlay the

video into an argument for comparative fault. Even so, after Ransdell presented

her case, the court changed the rules by lifting the discovery sanction. The court

pointed to “evidence put into the record” by Ransdell as prompting its “duty to

instruct” on comparative fault. Relying on the doctrine of “curative admissibility,”

the court ruled Huckleberry could argue comparative fault based on five aspects

of Ransdell’s proof. Besides the cell-phone video, the court cited witness

testimony about the inherent risk in go-kart racing, photographs of warning signs
24

on the track, as well as Ransdell’s testimony that she had driven on the go-kart

track before and that she suffered from multiple sclerosis.

Ransdell argues the court misapplied the doctrine of “curative admissibility”

when approving the comparative-fault jury instructions and allowing Huckleberry

to urge that defense in closing argument. Curative admissibility refers to a situation

“when inadmissible evidence has been entered into the record and the other party

seeks to admit further inadmissible evidence to cure the error.” State v. Huser,

894 N.W.2d 472, 507 (Iowa 2017). Ransdell is right—that tit-for-tat did not occur

here. First, Ransdell did not offer inadmissible evidence. Second, Huckleberry

did not proffer curative evidence. In fact, Huckleberry rested without offering any

evidence.9 Even the majority concedes in footnote 4 that the concept of curative

admissibility did not fit this situation.10

Beyond misapplying the curative-admissibility doctrine, the district court

wrongly determined that the five pieces of proof listed in its order provided

substantial evidence for instructing the jury on comparative fault.

Turning first to inherent risk, the court discussed the testimony of William

Avery, an expert on amusement-ride safety. True, Avery acknowledged an

9 To prove comparative fault, Huckleberry had to show a causal connection
between Ransdell’s fault and her claimed damages. See Iowa Code §§ 668.1(2),
668.3(3) (2017); see also Greenwood v. Mitchell, 621 N.W.2d 200, 205 (Iowa
2001) (holding burden rests on defendant to prove plaintiff’s fault).
10 In that same footnote, the majority recognizes that the phrase “open the door”

often refers to a party “offering admissible evidence that in turn triggers
admissibility of responsive evidence by an opposing party.” See Huser, 894
N.W.2d at 507. Because Huckleberry offered no responsive evidence, the majority
frames the issue: did the admissible evidence offered by Ransdell support a legal
defense? But the question really should be: how did the anticipated and
admissible evidence offered by Ransdell trigger the court’s revocation of the
discovery sanction?
25

“inherent risk” in go-kart racing. But he also compared the activity to driving on a

highway, yet in a more controlled environment. Avery emphasized the importance

of having “an attentive track attendant” to mitigate the risks of the karts running

into each other. In his opinion, Fun City employees followed a “poor safety

procedure.” Nothing in Avery’s testimony opened the door to a comparative-fault

defense. See Ludman v. Davenport Assumption High Sch., 895 N.W.2d 902, 914

(Iowa 2017) (“A plaintiff who is actually aware of a reasonable risk and voluntarily

undertakes it . . . is not negligent.” (quoting Restatement (Third) of Torts:

Apportionment of Liability § 3 cmt. c, at 32 (Am. Law Inst. 2000))). Likewise,

neither the cell-phone video nor the photographs of the track in his report justify

submitting comparative-fault instructions. Contrary to the court’s ruling, those

exhibits did not provide substantial evidence of Ransdell’s negligence.

As to the portions of Ransdell’s testimony mentioned by the court, it is

unclear why Ransdell’s experience at the go-kart track opened the door to

Huckleberry’s comparative-fault defense. Similarly, Ransdell’s acknowledgment

that she had been diagnosed with multiple sclerosis may have been relevant to the

jury’s calculation of damages but did not speak to her negligence.

After all the evidence came in, the court allowed Huckleberry to argue in

closing that the jurors could find that Ransdell failed to keep a proper lookout

because they had “seen the video several times.” Huckleberry’s attorney also

argued Ransdell failed to maintain control and failed to follow the posted rules on

safety and medical restrictions. No testimony supported those arguments. The

attorneys did not ask any witness to critique Ransdell’s driving, her awareness of

her surroundings, or her control of the speed and direction of the go-kart. The
26

court should have kept out those speculative arguments and declined to submit

the comparative-fault jury instructions. See Thompson v. City of Des Moines, 564

N.W.2d 839, 846 (Iowa 1997) (holding trial court must refuse to instruct on issue

lacking substantial support in the record or which rests on speculation).

Because the district court misused the doctrine of “curative admissibility”

and substantial evidence did not support submitting the comparative-fault

instructions to the jury, errors of law occurred in the proceedings. And those errors

materially affected Ransdell’s substantial rights. See Iowa R. Civ. P. 1.1004.

Ransdell credibly maintains that had she known the court would instruct the jury

on comparative fault, she would have tried her case differently. For instance, she

would have testified about the care she exercised in driving and about her

understanding of the warnings signs. In hindsight, she also would have

reconstructed the crash and called the other drivers as witnesses. She would have

offered more evidence on go-kart crashes and the relevance of Huckleberry’s

responsibility to prevent crashes in relation to her actions. Plus, she would have

employed a warning and signage expert, explored industry standards for warnings,

and offered medical testimony to address the signs.

Ransdell naturally relied on the court’s pretrial ruling excluding evidence of

comparative fault and suffered prejudice from the erroneous eleventh-hour

reversal of that ruling. Although unsupported by the evidence, the court allowed

Huckleberry to argue comparative fault in closing and instructed on the affirmative

defense. Accepting Huckleberry’s comparative-fault argument, the jury found

Ransdell fifty-one percent at fault for her injuries, barring any recovery. The errors
27

in the proceeding materially affected her rights. I would reverse the judgment

entered against Ransdell and remand for retrial.