Tracie Lynn Turner v. Hy-Vee, Inc., d/b/a Hy-Vee Food Store

IN THE COURT OF APPEALS OF IOWA

No. 22-0032
Filed February 8, 2023

TRACIE LYNN TURNER,
Plaintiff-Appellant,

vs.

HY-VEE, INC., d/b/a HY-VEE FOOD STORE,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

Turner appeals the jury verdict assigning her 98% fault in a parking lot fall

case. AFFIRMED.

Pete Leehey of The Biker Lawyers, P.C., Cedar Rapids, for appellant.

Terry J. Abernathy, Matthew G. Novak, and Bradley J. Kaspar of Pickens,

Barnes & Abernathy, Cedar Rapids, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
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GREER, Judge.

After falling in a Hy-Vee store parking lot, Tracie Turner brought a premises

liability action seeking damages for her injuries. She claimed the store staff was

negligent in its inspection and maintenance of the lot. Hy-Vee argued Turner was

the cause of her fall and the jury essentially agreed, assigning Turner fault of 98%.

Now on appeal, Turner requests a review of several pre-trial discovery rulings she

believes required the imposition of sanctions and several trial rulings she contends

impacted the jury verdict.

More specifically, she argues the district court abused its discretion by

failing to sanction Hy-Vee for discovery abuse and failing to award her attorney

fees; she seeks a remand on these issues. In her request for a new trial, Turner

alleges she should have been able to impeach the Hy-Vee witnesses with their

discovery abuses, including a missing video and a destroyed internal store report.

Lastly, she contends the district court erred by failing to instruct the jury on

spoliation of evidence and negligence per se because of building code violations.

We consider her allegations and affirm.

Factual Background.

In the early fall of 2015, after shopping in a Hy-Vee store, Turner pushed

her small shopping cart towards her vehicle in the parking lot. According to Turner,

as she headed towards her vehicle at around 8:00 p.m., the cart hit a rise in the

pavement, which caused her and the cart to tip over. Turner returned to the store

and reported her fall to assistant manager Cale Oltmanns and showed him where

she had fallen. Several days later, human resource manager Linda
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Pochobradsky1 spoke with Turner to see how she was doing. A claim risk manager

for Hy-Vee, Angela Hinz, also tried to interview Turner, but Turner never called her

back. Then, almost two years after the fall, Turner brought suit against Hy-Vee.

During the work up to trial, Turner filed several motions to compel discovery.

Important to the issues here, the central focus of the motions was to compel

production of a “night note”2 and a surveillance video of the parking lot from the

evening of the fall. These requests were met with a response that the note and

video no longer existed. Turner also asked for sanctions because Hy-Vee did not

disclose surveillance photographs of Turner and her counsel socializing. The

district court ruling on the discovery motion required disclosure or an explanation

by Hy-Vee if items could not be disclosed. But as to two photographs taken of

Turner and her counsel, the district court ordered that Hy-Vee could not use those

undisclosed photographs at trial and further limited any other evidence not yet

produced by Hy-Vee. No other sanctions were ordered with the court finding “all

other allegations/issues raised in [Turner’s] motion have either been previously

addressed by the Court or lack sufficient factual support to warrant further action.”

During the jury trial, Turner intended to read Pochobradsky’s deposition to

show Hy-Vee’s disregard for the truth over the missing night note and the video,

but the district court limited some of the testimony. The district court denied

Turner’s request for jury instructions on spoliation and negligence per se. Because

1Pochobradsky passed away before the trial.
2 The night note refers to daily notes made by the manager on duty that
summarizes store activity for the day.
4

the jury found Turner more than 50% at fault, she recovered no damages. She

appeals the jury verdict and adverse rulings.

Abuse of Discretion and Discovery Sanctions, Including Attorney Fees.

Over the course of this case, the district court ruled on various discovery

deficiencies claimed by Turner; she now appeals from those orders and requests

a remand for further proceedings, arguing the district court abused its discretion

and should assess additional sanctions, including attorney fees, to comport with

the seriousness of the discovery failures.3 We review discovery rulings for abuse

of discretion. See Vaccaro v. Polk Cnty., 983 N.W.2d 54, 57 (Iowa 2022). “An

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

unreasonable grounds.” Troendle v. Hanson, 570 N.W.2d 753, 755 (Iowa 1997).

When determining if a sanction is appropriate, the trial court should consider

several factors, including one that pertains to this case: “the party’s reasons for not

providing the challenged evidence during discovery.” Lawson v. Kurtzhals, 792

N.W.2d 251, 259 (Iowa 2010) (listing this factor and others not pertinent here).

During the litigation, the parties exchanged discovery responses. Among

other items, Turner requested production of any accident reports, including the

night note prepared by Oltmanns from the night Turner fell. Ultimately, she moved

to compel its production. Hy-Vee responded that the night note was no longer

available, but Turner contends Oltmanns was never asked to retrieve it and that

3 The list of behavior to sanction included: (1) deceitful discovery responses and
denial of the existence of the video of the parking lot, (2) lack of effort to find
Oltmanns’s night note about the fall, (3) coaching by improper objections in
depositions, and (4) delayed production of photographs taken by an investigator
of Turner and her counsel. We consider all of these behaviors in our review of the
discovery sanction request.
5

he testified he had not deleted it from his computer and had emailed it to other

employees.

Prior to a hearing on the night note discovery concern, Turner again moved

to compel discovery, pointing out another discovery discrepancy—while Hy-Vee

denied the existence of any accident reports or surveillance video in the area of

the fall, it then produced a customer accident notice that indicated the fall was

captured on video. Turner demanded production of the video. Hy-Vee disputed

that anyone saw the video or that it would even show the fall, but Pochobradsky

admitted in her deposition that she watched the video at the time she prepared the

accident report. Yet, in its response to the supplemental motion to compel, Hy-

Vee denied any dishonesty in answering discovery because Hy-Vee could not

confirm that the fall was captured on the video, and even if it were, the video was

not preserved given Hy-Vee’s retention policy.

Reacting to that response, Turner filed yet another supplemental motion to

compel discovery addressing Hy-Vee’s untimely objections and inadequate

responses to discovery requests. She drilled down on the disappearance or

destruction of what she labeled “key” evidence—the video. Turner also took issue

with Hy-Vee’s late production of “surveillance” photographs taken in August 2019

of Turner and her counsel socializing at a bar.4 Hy-Vee asserted any surveillance

constituted work product, but Turner had requested surveillance materials in

discovery. Finally, a hearing was held and the district court gave Hy-Vee thirty-

days to “diligently search” for the items requested by Turner and either produce

4 Before disclosing the photographs, Hy-Vee used them in Turner’s deposition.
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the items or provide an affirmative statement as to the diligent efforts used and the

reasons for the unavailability of the items. The order noted sanctions would be

imposed if Hy-Vee did not comply. To comply, Hy-Vee certified that:

The video images can be viewed at the store. They are electronically
sent to Hy-Vee’s corporate headquarters in West Des Moines. The
videos are not available for copying at the store. Requests for copies
of videos are made to Hy-Vee’s headquarters. Unless a specific
request is made for preservation of the videos, they are only
maintained for 30 days.

The store representative confirmed the video, if there was one, no longer existed.

Hy-Vee also searched for the night note and confirmed that the assistant vice

president of IT operations had attempted a full search and could not locate the

note in Hy-Vee’s computer system.

After several rounds before the district court over discovery disputes, Turner

filed for sanctions and the court summarized the discovery history:

The Court has dealt with discovery issues in this case on
multiple occasions. In an Order issued September 5, 2018, the Court
partially granted [Turner’s] Motion to Compel and ordered [Hy-Vee]
to turn over information regarding accident reports, surveillance
video and equipment, and the identification of all employees working
at the time of the alleged incident. On June 14, 2019, the Court
denied a separate Motion to Compel filed by [Turner]. On July 24,
2019, the Court granted [Turner’s] Renewed Motion to Compel,
which sought other video and photographic evidence along with
certain store records. On March 3, 2020, the Court denied two
additional Motions to Compel that were mooted by the Court’[s]
partial grant of summary judgment in the same order.

With that review of Turner’s discovery motions, the district court issued a ruling in

August 2020, stating:

Aside from the issue involving two photographs of [Turner] taken in
August 2019 and disclosed to [Turner] and her counsel during
[Turner’s] February 10, 2020, deposition, all other allegations/issues
raised in her motion have either been previously addressed by the
Court or lack sufficient factual support to warrant further action.
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As a sanction for the failure to disclose the two photographs, the court made

specific orders as to that particular discovery dispute,

1. [Hy-Vee] will not be permitted to offer, display, or otherwise
reference the two August 2019 photographs in their case in chief,
cross-examination, or in rebuttal at trial.
....
3. [Hy-Vee] will not be permitted to utilize evidence in this case
that has been newly discovered since March 23, 2020, without prior
approval of the Court and after a showing of good cause.

There are procedures addressing discovery abuse described under Iowa

Rule of Civil Procedure 1.517. But those discovery rules allow for a party to explain

if failure to provide discovery was “substantially justified” before sanctions can be

ordered. Iowa R. Civ. P. 1.517(2)(5). While the parties skirmished over Hy-Vee’s

positions around what documents or video it had and what happened to them, we

find the district court carefully examined the arguments, accepted the explanations

for the failure to produce the missing discovery, and was reasonable in how it

handled the resolution of each of the discovery disputes. We find no abuse of

discretion and decline to remand related to the discovery disputes.

Failure to Allow Impeachment Evidence at Trial.

Because Pochobradsky died before trial, Turner sought to admit several

portions of her deposition by reading it at trial. Hy-Vee objected in writing to several

parts of the deposition that focused on the discovery fight over the video. Turner

filed a written response to the objections simply noting “Regarding Linda

Pochobradsky, Plaintiff resists all objections.”5 Although the court asked for further

5As our supreme court recognized in Ferris v. Riley, 101 N.W.2d 176, 182 (Iowa
1960):
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argument, she offered no other reasoning except to say “Various things that have

been excluded by previous rulings, just to preserve for the record.” Turner asserts

she should have been allowed to read all requested parts of the Pochobradsky

deposition.

We review evidentiary rulings for an abuse of discretion. Hall v. Jennie

Edmundson Mem’l Hosp., 812 N.W.2d 681, 685 (Iowa 2012). “A court abuses its

discretion when its ruling is based on grounds that are unreasonable or untenable.”

Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014) (citation omitted).

Before the trial started, the district court struck those sections addressing

the discovery disputes. Now, Turner asserts the district court abused its discretion

by failing to allow her to impeach Pochobradsky by alerting the jury that Hy-Vee

had been “untruthful” or “misleading” in discovery over the night note and the

possibility of a video of the fall. Turner argues this abuse of discretion should be

remedied by a grant of a new trial.

But first, Hy-Vee argues that Turner failed to preserve error on this subject

and, even if she had, there was no abuse of discretion by the district court because

Hy-Vee admitted the areas of proof Turner sought to discuss. To confront the

error-preservation argument, Turner points to an offer of proof filed after the

presentation of her evidence. “If [a district court] ruling excludes evidence, a party

informs the court of its substance by an offer of proof, unless the substance was

It may be that in the courtroom scenes popularly, and generally
inaccurately, portrayed on television and radio, a mere “I object” or
“objection” is sufficient; but it is the good fortune of the trial courts in
Iowa that something specific and definite is required, and that
reversible error may not be predicated upon an objection which does
not tell the court the ground upon which it is based.
9

apparent from the context.” Eisenhauer v. Henry Cnty. Health Ctr., 935 N.W.2d 1,

17 (Iowa 2019) (citing Iowa R. Evid. 5.103(a)(2)). Along with addressing exhibits

excluded from Pochobradsky’s deposition, the written offer of proof detailed: “[Hy-

Vee] clearly made untruthful and deceptive discovery responses, some which were

verified as truthful by [Pochobradsky], others which, although not verified,

[Pochobradsky] had personal knowledge of the fact that some of Hy-Vee’s

discovery responses were untruthful.” But the written offer of proof came after

Turner had rested her case and provided no substantive arguments to address the

earlier general objection made. Cf. Summy v. City of Des Moines, 708 N.W.2d

333, 338 (Iowa 2006), overruled on other grounds by Alcala v. Marriott Int’l, Inc.,

880 N.W.2d 699 (Iowa 2016) (“Error preservation does not turn, however, on the

thoroughness of counsel’s research and briefing so long as the nature of the error

has been timely brought to the attention of the district court.”). Even though the

offer of proof contained no detailed arguments, Turner contends the district court

had earlier ruled and could have taken corrective action to admit the evidence

during trial without any further nuanced arguments by her. And, Turner points us

to her motion for new trial where there were more detailed arguments over why the

impeachment evidence should not have been excluded. But, again, this came too

late for corrective action by the court. See Thomas A. Mayes & Anuradha

Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present

Practice, 55 Drake L. Rev. 39, 42–43 (2006) (noting policies underlying error

preservation disfavor “revers[ing] a trial court based on arguments not before it”).

We agree with Hy-Vee that Turner failed to preserve error on the denial of her

request to admit some sections of the Pochobradsky deposition.
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But even if she had preserved error, we do not find that the district court

committed reversible error. Essentially, in her deposition, Pochobradsky

confirmed she had prepared an accident report and did not know why the discovery

indicated that one did not exist and she admitted there was a video of the incident

that existed at one time. Turner argued the testimony could be used to impeach

Pochobradsky and attack her credibility as a witness. See Eisenhauer, 935

N.W.2d at 19–20 (finding continuing medical education records should have been

admitted for the purpose of impeaching doctor’s qualifications, but because other

evidence of the doctor’s lack of expertise was admitted, the court’s error was

harmless). Here, Turner argued to the jury her suspicions over the missing video

and addressed the delay in obtaining the various accident reports, so Turner

cannot show prejudice even if the testimony should have been admitted. See id.

at 19 (finding that any error in excluding the evidence of the doctor’s lack of

experience was harmless because other evidence presented weakened the

credibility of the doctor, so the exclusion did not affect the requesting party’s

substantial rights). Even more, Hy-Vee admitted that Turner fell and that there had

been a video of the fall that no longer existed.

Thus, we find Turner did not preserve error on this claim. But even if she

did, it would not warrant a new trial because prohibiting Turner from using the

deposition testimony over the discovery dispute about the video and accident

reports did not affect Turner’s substantial rights.

Failure to Instruct on Spoliation of the Video and Night Note.

Pointing to Hy-Vee’s inability to produce the night note prepared after talking

with Turner and the video from the night of the fall, Turner requested a jury
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instruction on spoliation of evidence. In Alcala, our supreme court made it clear

that when reviewing the court’s refusal to instruct on spoliation, which involves a

discretionary component, we apply an abuse of discretion standard. 880 N.W.2d

at 707 (noting that “because the [spoliation] instruction ‘acts as a discovery

sanction and discovery sanctions are discretionary,’” an abuse of discretion

standard should be applied).

Turner argued that Pochobradsky viewed the video to complete the

accident report she filled out, knowing there was a potential claim. Thus, Turner

contends any destruction of the video or accident reports after that point would

presumably involve Hy-Vee’s intentional action. Hy-Vee argued that before the

spoliation instruction could be given, Turner had to establish that the company

intended to destroy the video and the night note. But the company, or its

representatives, did not hear from Turner from November 2015 to September

2017—when Turner filed suit—even though contact was attempted. Thus, the

passage of almost two years before litigation was initiated explained Hy-Vee’s

failure to specifically retain the video or the report given their normal retention

history. In its ruling on this issue, the district court noted:

But the evidence that I heard in this trial was a combination of
some mistakes in how this video was logged and the timeframe from
when [Hy-Vee]was aware—they’re aware of the accident when it
initially happened, but when it was then reported and turned into
something that turned into litigation, there was a substantial passage
of time there that answers a question for me that, given that passage
of time and how the reporting of the incident to Hy-Vee and the
follow-up by [Turner], shows it wasn’t reasonable for Hy-Vee to
anticipate litigation at the start of this matter given those
circumstances.
And then the process by which they got to the point of passing
this on to their risk management folks and the testimony I heard
regarding the references or lack thereof to the video, at best, rise to
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negligence and not intent. So I will not be giving the spoliation
instruction.

Likewise, the district court made it clear to Turner that although she had not met

the proof requirements for a spoliation instruction, she was still free to argue about

the video and whether it existed or not.

To garner a spoliation instruction, Turner had to generate a jury question on

the spoliation inference by showing: “(1) [the] evidence exists, (2) it is in the

possession or under the control of [Hy-Vee], (3) it would have been admissible at

trial, and (4) [Hy-Vee] intentionally destroyed the evidence.” See State v.

Hartsfield, 681 N.W.2d 626, 631 (Iowa 2004) (emphasis added). There must be

substantial evidence to support the spoliation inference. State v. Langlet, 283

N.W.2d 330, 335 (Iowa 1979). “Neither the rationale of the spoliation inference

nor any authorities found support submission of the inference [of spoliation] in the

case of unintentional destruction.” Id. at 334.

We agree with the district court that there was not substantial evidence of

intentional destruction of the video and night note. Hy-Vee provided information

of their regular process involving the retention of these two pieces of evidence.

See Hartsfield, 681 N.W.2d at 632 (recognizing “evidence destroyed under a

neutral record destruction policy is not considered intentionally destroyed so as to

justify a spoliation instruction”). And Hy-Vee did not hear from Turner again for

almost two years following the fall, which explained the strained memories whether

a video even existed and what it might show as opposed to any intentional

destruction of the contents of the video. The refusal to instruct on spoliation was

not an abuse of discretion.
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Failure to Instruct on the State Building Code.

Finally, Turner requests a new trial because the district court erred in not

instructing the jury on negligence per se based on the building code standards.

Turner requested the following instructions:

700.10 Safety Code—Negligence Per Se. The state building
code requires that vertical height variances in Hy-Vee’s parking lot
be no greater than 1/4 inch.
A violation of this law is negligence.

and

700.10 Safety Code—Negligence Per Se. The state building
code requires that light levels in Hy-Vee’s parking lot be no less than
1 foot candle at the walking surface.
A violation of this law is negligence.

Our standard of review concerning alleged errors involving jury instructions

is for the correction of errors at law. Banks v. Beckwith, 762 N.W.2d 149, 151

(Iowa 2009). “Iowa law requires a court to give a requested jury instruction if it

correctly states the applicable law and is not embodied in other instructions.”

Alcala, 880 N.W.2d at 707 (citation omitted). But “[i]nstructional errors do not merit

reversal unless prejudice results.” Rivera v. Woodward Res. Ctr., 865 N.W.2d 887,

592 (Iowa 2015). “Prejudice occurs and reversal is required if jury instructions

have misled the jury, or if the district court materially misstates the law.” Id.

Turner did offer a photograph showing a height variance of one-half to

three-quarters inches in the parking lot where she fell. But as to any standards

presented in the evidence, when discussing the objections to Turner’s architect’s

testimony, by agreement of the parties the district court narrowed the deposition

testimony so that Turner’s architect expert only opined “Even at one-half inch

[variance], the installation would not comply with standards.” But nothing
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submitted to the jury identified any specific standards or code violations as it

specifically related to the parking lot. In her appellate brief, Turner references

several sections of the state building code, but again there was no connection

made at trial by an expert between these provisions and the area of the fall.

Hy-Vee asserts Turner only attempted to introduce inapplicable building

code regulations that were not pertinent to the parking lot. Whether certain

industry standards apply to a particular area are fact questions. Alcala, 880

N.W.2d at 710–11. The district court did not find that the evidence supported giving

a negligence per se instruction and reasoned:

Also, on the objections by [Turner] on the two code
instructions that were cited, I’m going to give Instruction Number
19—that’s in my packet—which allows the parties to argue whether
or not there’s been conformity or nonconformity with the codes.
The instructions suggested by [Turner] are pointing at per se
violations of codes that apply to the situation here, and I don’t believe
we have enough evidence to conclude that there were actual—that
these building codes that were cited equate or are applicable, as
[Turner] argues, to a situation that requires a—a per se instruction
on that.
Certainly, violations of standards or codes that the jury may
have heard of is something that they can come—take into
consideration in coming to a decision in whether or not [Hy-Vee] was
negligent in exercising its duty of care or fixing its parking lot or
maintaining it or inspecting it, but I’m not going to give a per se
instruction because I don’t believe it applies.

Given this reasoning, instead of Turner’s requested instructions the district court

instructed the jury as follows:

You have received evidence of industry standards and
applicable code provisions. Conformity with code provisions and
industry standards is evidence that a party was not negligent and
non-conformity of industry standards and codes is evidence that a
party was negligent. Such evidence is relevant and you should
consider it, but it is not conclusive proof.
15

We agree with the district court; the requested instructions were not warranted.

There was not a factual connection between those code sections requested and

the parking lot area of the fall to support submission of the instructions. Plus, the

district court instructed the jury to consider generally any standards or codes and

how they might weigh in on Hy-Vee’s negligence; so, Turner was allowed to argue

the general standards raised by expert testimony at trial.

In sum, because we find there was not substantial evidence to support

giving the requested instructions, the district court did not err in denying Turner’s

request and Turner is not entitled to a new trial.6

Conclusion.

As to the discovery rulings made before trial, we find the district court did

not abuse its discretion on the alleged errors that Turner preserved for appeal.

And we find no prejudice to Turner over the exclusion of Pochobradsky’s testimony

intended to impeach Pochobradsky and Hy-Vee. Finally, the district court did not

err in rejecting the spoliation instruction proposed by Turner and the district court’s

refusal to instruct on negligence per se was not in error. We affirm.

AFFIRMED.

6 Plus, even if the court should have given the instructions on building code
standards, Turner cannot show she was prejudiced by the alleged error. The jury
found Hy-Vee was 2% at fault even without a negligence per se instruction. See
Doty v. Olson, No. 09-1852, 2010 WL 5050565, at *3–4 (Iowa Ct. App. Dec. 8,
2010) (holding that where there is a finding of negligence, a failure to instruct the
jury on negligence per se does not result in prejudice without a showing “the jury’s
allocation of . . . fault to [the parties] would have been impacted by” the additional
instruction).