In the Court of Appeals of Iowa s18

IN THE COURT OF APPEALS OF IOWA

No. 4-394 / 03-0894 Filed September 9, 2004

RICHARD R. HEROLD, Plaintiff-Appellee/Cross-Appellant, vs. SHAGNASTY'S, INC., and BARMUDA CORPORATION, Defendants-Appellants/Cross-Appellees.

Appeal from the Iowa District Court for Linn County, Thomas M. Horan,

Judge.

Defendants appeal and plaintiff cross-appeals following a jury verdict for plaintiff in his suit for damages resulting from an altercation outside Shagnasty’s nightclub. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

NEW TRIAL.

Christine Conover and Matthew Petrzelka of Simmons, Perrine, Albright &

Ellwood, P.L.C., Cedar Rapids, for appellant Barmuda.

Max Kirk and Jen Bries of Ball, Kirk & Holm, P.C., Waterloo, for appellant

Shagnasty’s.

William Nicholsonof Rush & Nicholson, P.L.C., Cedar Rapids, for appellee.

Considered by Sackett, C.J., and Huitink and Miller, JJ. 2

SACKETT, C.J.

Plaintiff-appellee Richard Herold was injured during a confrontation with a security guard in the parking lot of a bar owned and operated by Defendant-

Appellant Shagnasty’s Inc. The negligence of Shagnasty’s and defendant- appellant Barmuda Corporation, which was found to be engaged in a joint venture with Shagnasty’s in the operation of the bar, were found to be a proximate cause of plaintiff’s injuries and plaintiff was awarded damages.

Defendants on appeal contend (1) certain of their proposed instructions should have been given, (2) Barmuda should have been directed out, and (3) there were several incorrect rulings on evidence. Plaintiff has cross-appealed contending his claims for false imprisonment, malicious prosecution, battery, defamation and punitive damages should not have been dismissed. We affirm in part, reverse in part, and remand for a new trial.

Plaintiff was a part of his son Chad’s bachelor party. It is conceded that the party came to Shagnasty’s late on the evening of June 9, 2001 and left about closing time. Other facts in the case are seriously disputed. Plaintiff contends he had a good time in the bar and there were no problems. Bar employees contend plaintiff had been drinking throughout the day, and was loud and obnoxious in the bar. They said when he appeared intoxicated they took a drink from his hand and he and his son were escorted from the bar. Plaintiff contended he left voluntarily and was in a car that was driving away when he saw his son in an altercation and he got out of the car to help. He contends he was attempting to separate his son from a person attacking him when he was tackled from behind by Shagnasty’s security person Jason Levy and held on the ground until the 3 police arrived. Levy admitted he tackled plaintiff but contended he did so because plaintiff was ready to strike a second security person Travis Meth. Levy also said plaintiff hit him before he was tackled and Levy was concerned plaintiff would hit others in the parking lot. Levy also said plaintiff’s son jumped on his back and hit him. There was also testimony that plaintiff was not involved in the altercation and that no security persons were present before Levy tackled plaintiff without warning and plaintiff did not hit anyone. When police arrived Levy asked that charges be filed against plaintiff. Plaintiff was charged with assault, disorderedly conduct, and public intoxication. Plaintiff testified he was acquitted on the assault and disorderly conduct charges. He testified he pled guilty to the public intoxication. Plaintiff’s ankle was broken that evening and it required two surgeries to repair.

Plaintiff sued defendants contending he was injured as a result of negligence of the defendants. He claimed the defendants were engaged in a joint enterprise. He also contended that he was falsely imprisoned, maliciously prosecuted, battered, and defamed–which claims were dismissed prior to submission of the case. Defendants denied plaintiff’s allegations and asserted affirmative defenses of comparative fault and self defense.

The case was submitted to the jury on a premises liability theory and the jury was basically instructed that for plaintiff to recover from defendants, plaintiff must prove a number of propositions, including (1) that defendants knew or in the exercise of reasonable care should have known (a) of the risk of harm to invitees from altercations on their premises, and that such altercations involved an unreasonable risk of injury to a person in plaintiff’s position, (b) that plaintiff would 4 not discover the risk of harm from altercations on defendant’s premises or realize it presented an unreasonable risk of injury or would not protect himself from the risk of harm; (2) that defendants were negligent in one or more of the following ways (a) in hiring, training and supervising their security employees, (b) in their employees taking plaintiff from behind and forcing him to the pavement, and (c) in not warning plaintiff he would be restrained if he did not cease his involvement in the altercation, if any; (3) plaintiff was damaged, and (4) defendants’ negligence was a proximate cause of the injury. The jury was further instructed that if they found defendants were engaged in a joint enterprise in the operation of the bar then both defendants would be liable for all acts done by the joint enterprise or its employees acting within the scope of their employment.

The jury answered interrogatories finding Barmuda was engaged in a joint enterprise with Shagnasty’s, that both defendants were at fault, and their negligence was a proximate cause of plaintiff’s damages, which were fixed at

$148,315.07. The jury also found plaintiff at fault. Fault was assigned fifteen percent to plaintiff,1 twenty-one percent to Shagnasty’s, and sixty-four percent to

Barmuda.

Defendants’ first contention is that the district court erred in not submitting one of its two proposed jury instructions on justification, an issue raised in the pleadings. Defendants contend an instruction on justification is supported by substantial evidence because there was testimony that plaintiff was fighting with an unnamed person, that security employee Meth got between plaintiff and the

1 The jury was instructed as to Herold’s negligence as: actively participating in the altercation on defendants’ premises on June 19, 2001 and failing to leave the area of the altercation on defendants’ premises on June 10, 2001. 5 other person and felt a blow to the back of his head and that Levy saw plaintiff’s arm cocked to strike Meth before Levy pulled plaintiff to the ground. Defendants point out that one of the specifications of negligence submitted to the jury was that defendants’ employees were negligent in taking hold of plaintiff and forcing him to the pavement. They contend that because of the evidence that restraining plaintiff may have been justified, the jury should have been allowed to consider this fact. Plaintiff contends error was not preserved and that because the district court dismissed plaintiffs’ claims of assault, battery, and false imprisonment, the court did not err in refusing to give the instruction. He also contends there is not substantial evidence to support a finding that Levy was acting to defend Meth.

We review objections to jury instructions for correction of errors of law.

Iowa R. App. P. 6.4. Error preservation for requested instructions is detailed in

Iowa Rule of Civil Procedure 1.924. This rule requires,

All objections to giving or failing to give any instruction must be made in writing or dictated into the record . . . specifying the matter objected to and on what grounds. No other grounds or objections shall be asserted thereafter, or considered on appeal.

Iowa R. Civ. P. 1.924.

When a court refuses to give requested instructions, the objecting party must timely specify that part of the instruction which was requested and refused.

“In addition, the objecting party must identify the particular points of law or questions of fact on which the court supposedly erred by failing to instruct.”

Bauer v. Cole, 467 N.W.2d 221, 224 (Iowa 1991) (citing State v. Baskin, 220

N.W.2d 882, 886 (Iowa 1974)).

Defendants presented two proposed instructions on justification which correctly stated the law. While we would agree with plaintiff that justification is 6 not generally a defense to a claim of negligence in a premises liability case, under the jury instructions here the jury could have found the defendants negligent based on one of the specifications of negligence in finding that defendants’ employees took hold of plaintiff from behind and forced him to the pavement, an act Levy claimed he did in defense of himself and others.

It is well established in Iowa that a person is privileged to come to the defense of another about to be injured. State v. Brown, 168 N.W.2d 922, 924

(Iowa 1969).

Iowa Code section 704.3 (2003) provides that:

A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.

There is substantial evidence which, if believed, would support a finding that Levy’s action was justified. There was evidence plaintiff, who was belligerent and intoxicated, (1) was struggling with others in the parking lot, (2) appeared to be ready to strike Meth who was attempting to break the fight up, and (3) hit Levy in the head. Additionally there was evidence of Levy’s concern not only that plaintiff would hit Meth but that he would hit other patrons in the parking lot. The jury also could have found the force Levy used to be reasonable. In coming to the defense of another, a person may do only what the person attacked may have done to protect himself. Brown, 168 N.W.2d at 924.

Whether the force used was reasonable is generally a jury question, and the jury's conclusion will be sustained if there is any substantial evidence to support it. Id. A justification instruction should have been given, and we reverse on this issue. 7

Defendants next claim the district court erred in that it rejected their proposed instruction on foreseeability and the instruction given did not adequately instruct on the issue. Although parties are entitled to have instructions on their legal theories submitted if supported by substantial evidence, it is not error for the court to phrase instructions in its own words, so long as the instructions, taken together, correctly and adequately instruct the jury on the law.

See Greninger v. City of Des Moines, 264 N.W.2d 615, 617 (Iowa 1978). The district court’s instructions adequately and correctly set forth the law, even though not couched in the precise language requested by the defendants.

Because the instructions correctly set forth the law for the jury, we find no prejudice to the defendants in the court’s refusal to give their requested instruction on foreseeability. See Grefe & Sidney v. Watters, 525 N.W.2d 821,

824 (Iowa 1994). While the district court may use another instruction on retrial, we cannot say the instruction given was erroneous.

Defendants contend the district court should not have admitted as an exhibit a Cedar Rapids Police Department Memorandum from Dawn Stanford to

Darcie Carsner.2 Defendants claim the exhibit is hearsay, irrelevant, and more prejudicial than probative, and that plaintiff failed to lay an adequate foundation for the exhibit to be admitted as a business record. Plaintiff contends the error now urged was not preserved and that the records are a public record but not an investigative report or factual findings from an investigation and thus were properly admitted under the public record exception.

2 Carsner apparently was an employee in the office of plaintiff’s attorney. 8

In objecting to the exhibit the defendants referred to a motion in limine they filed earlier. From our review of the objection made at trial and the motion in limine, we agree with defendant that the error now urged was preserved.

Review of evidentiary issues is for correction of errors of law. Brooks v.

Holtz, 661 N.W.2d 526, 530 (Iowa 2003). "Except in cases of hearsay rulings, trial courts have discretion to admit evidence under a rule of evidence." State v.

Jordan, 663 N.W.2d 877, 879 (Iowa 2003).

The memorandum noted that at Carsner’s request it was providing a summary of dispatched calls to 5101 16th Avenue SW. What followed were notations of the “Dates,” “Times,” “Types,” and “Officer.” The “Type” apparently was the reason an officer was dispatched. The “Type” was defined in one or two words and included the following: “hit & run, intoxication, disturbance, domestic, theft, alarm, fight, warrant, assault, welfare, burglary, accident, ambulance, susp veh, see subject, crim misch., no contact, ind. exposure, susp person, parking prob, reg of minors, warrant chk., accident, theft fr auto, and subject with weapon.”

We agree that the memorandum was hearsay. It is an out-of-court statement offered for the truth of the matter asserted. Iowa R. Evid. 5.801. The matter being asserted was that there were prior complaints about happenings and officers were dispatched to the 16th Avenue address, which the record reflects was the address of the area Shagnasty’s bar was located. Plaintiff contends the report was relevant. Evidence of crimes and nonviolent incidents on the premises are relevant as they may provide a basis for a finding of foreseeability of personal-confrontation crimes. See Galloway v. Bankers Trust 9

Co., 420 N.W.2d 437, 440 (Iowa 1988). What is required to be foreseeable is only the “general character” or “general type” of the event or the harm, and not its

“precise” nature, details, or above all the manner of its occurrence. Id. (citing

Prosser and Keaton on Torts § 43, at 299 (5th ed. 1984). The report does not report prior crimes; the most it shows is calls made to the dispatcher reporting alleged events and the dispatcher obtaining information and sending an officer to an address.

Plaintiff contends the report was properly admitted as a public record or report under Iowa Rule of Evidence 5.801(8) or as a summary under Iowa Rule of Evidence 5.1006. Defendants contend it is not admissible as a public record or report because of the exception in 5.803(8)(B)(i) that provides that investigative reports by police and other law enforcement personnel are not within the public records and reports exception to the hearsay rule. Defendants also contend it is not rendered admissible under rule 5.1006.

Iowa Rule of Evidence 5.803(8) provides:

(8) Public records and reports. (A) To the extent not otherwise provided in rule 5.803(8)(B), records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to a duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. (B) The following are not within this exception to the hearsay rule: (i) Investigative reports by police and other law enforcement personnel. (ii) Investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party. (iii) Factual findings offered by the state or political subdivision in criminal cases. 10

(iv) Factual findings resulting from special investigation of a particular complaint, case, or incident. (v) Any matter as to which the sources of information or other circumstances indicate lack of trustworthiness. Rule 5.803(8)(B), however, shall not supersede specific statutory provisions regarding the admissibility of particular public records and reports.

(Emphasis supplied.)

While subpart A of rule 5.803(8) creates a hearsay exception for many public records and reports, subpart B carves out of the exception five types of reports.

The rule tells us that the memorandum meets the requirement of rule

5.803(8)(A) for it was a data compilation and sets forth regularly conducted and regularly recorded activities of the agency (answering calls). The question then becomes whether the report is carved out under rule 5.803(B)(i) as an investigative report by police and other law enforcement officers. We believe it is, for the memorandum summarizes data recorded as the result of the Cedar

Rapids Police Department gathering information from a caller and based on the information gathered, determining if a police officer needed to be dispatched.

See State v. Reitenbaugh, 392 N.W.2d 486, 491 (Iowa 1986).

The erroneous admission of hearsay is presumed to be prejudicial, and the person claiming harmless error must affirmatively establish absence of prejudice. Id.; State v. Horn, 282 N.W.2d 717, 724 (Iowa 1979); State v. Johnson,

272 N.W.2d 480, 482 (Iowa 1978); State v. Menke, 227 N.W.2d 184, 188 (Iowa

1975). The hearsay was clearly prejudicial. The exhibit should not have been admitted. 11

Plaintiff also contends the exhibit was admissible as a summary under

Iowa Rule of Evidence 5.1006. We have found the documents to be inadmissible hearsay. We do not interpret rule 5.1006 to allow a summary of evidence not otherwise admissible.

Defendants objected to two charts or diagrams (called matrices by defendants) used by an expert testifying for plaintiff. Defendants objected on the grounds plaintiff failed to disclose the charts in discovery. Under Iowa Rule of

Civil Procedure 1.508, a party may discover the opinions and basis for the opinions of an opponent’s expert. The charts were in the nature of visual aids used to illustrate the expert’s testimony. "Admission or exclusion of demonstrative evidence rests largely within the trial court's discretion." State v.

Thornton, 498 N.W.2d 670, 674 (Iowa 1993). Therefore, our review is for an abuse of discretion. Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d

882, 885 (Iowa 1994). Iowa Rule of Evidence 5.702 and controlling case law make it clear "we are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area.” The expert’s testimony that the altercation was a non-random event came in without objection. The expert’s opinion and the facts upon which the opinion was based were disclosed to the defendants over a year prior to trial, as required by Iowa Rule of Civil Procedure 1.508. We conclude the district court did not abuse its discretion in allowing the use of these charts. We also conclude there was no prejudice from allowing the expert to illustrate his testimony. Plaintiff made the required disclosure of his expert’s opinions, and defendants had ample opportunity to depose and cross-examine him. 12

The plaintiff contends the court erred in granting directed verdicts and dismissing his claims for battery, false imprisonment, malicious prosecution, and punitive damages. A court reviewing the district court’s grant or denial of directed verdicts must determine if the non-moving party presented substantial evidence on each element of a claim. Balmer v. Hawkeye Steel, 604 N.W.2d

639, 640 (Iowa 2000). Unfortunately in dismissing these claims the district court gave no reason for its decision.

There was substantial evidence which, if believed, could support a finding of battery. There was not substantial evidence to support a claim of false imprisonment or malicious prosecution.

Battery is defined as “[t]he application of force to another, resulting in harmful or offensive contact.” Black’s Law Dictionary 146 (7th ed. 1999). Iowa

Uniform Civil Jury Instruction 1900.3 states that the elements of battery include the intent to cause physical pain or injury or to be insulting or result in offensive contact. It is conceded that Levy threw plaintiff to the ground. In doing so a jury could find Levy committed a battery. As we noted earlier there was substantial evidence from which a jury properly instructed could find the battery was justified.

The battery claim should not have been dismissed and the justification instruction should have been given.

False imprisonment is the unlawful restraint of an individual's personal liberty or freedom of locomotion. Sergeant v. Watson Bros. Transp. Co., 244

Iowa 185, 196, 52 N.W.2d 86, 92 (1952); Restatement (Second) of Torts § 35, at

52 (1965); 32 Am. Jur. 2d False Imprisonment § 2, at 435 (1999). The essential elements of this tort are "(1) detention and restraint against one's will and (2) the 13 unlawfulness of such detention or restraint." Valadez v. City of Des Moines, 324

N.W.2d 475, 477 (Iowa 1982) (quoting Sergeant, 244 Iowa at 196, 52 N.W.2d at

93); Zohn v. Menards, Inc., 598 N.W.2d 323, 326 (Iowa Ct. App. 1999). Plaintiff was restrained against his will. Plaintiff argues the detention was unlawful because “Levy was not a law enforcement officer or deputy.” Defendants argue the restraint was lawful because Iowa law allows private citizens to make an arrest and to use reasonable force in doing so. See Iowa Code §§ 804.9 and .10

(2001). Plaintiff further notes that Levy only restrained the plaintiff until police arrived then turned him over to them. See id. § 804.24. There was substantial evidence the plaintiff was intoxicated and he ultimately pled guilty to public intoxication. Plaintiff has failed to introduce substantial evidence to prove that the restraint was not justified. We affirm on this issue.

To recover for malicious prosecution the plaintiff has the burden to show:

(1) his criminal prosecution, (2) its procurement by defendant, (3) its termination favorable to him by the failure to indict resulting in his discharge, (4) lack of probable cause,3 and (5) malice4 in the instigation of the prosecution. See

3 Probable cause exists if [the accuser] correctly or reasonably believes (a) that the person [accused] has acted or failed to act in a particular manner, and (b) that those acts or omissions constitute the offense that [the accuser] charges against the accused, and (c) that [the accuser] is sufficiently informed as to the law and the facts to justify [the accuser] in initiating or continuing the prosecution. Sisler v. City of Centerville, 372 N.W.2d 248, 251 (Iowa 1985) (quoting Restatement (Second) of Torts § 662, at 423 (1977)). 4 Malice means any wrongful act which has been willfully and purposely done to the injury of another. There must be an improper purpose or motive. Malice may be actual, or it may be inferred from a want of probable cause. Brown v. Monticello State Bank, 360 N.W.2d 81, 87 (Iowa 1984). 14

Lukecart v. Swift & Co., 256 Iowa 1268, 1279, 130 N.W.2d 716, 722 (1964);

Schnathorst v. Williams, 240 Iowa 561, 572, 36 N.W.2d 739, 745 (1949).

The plaintiff argues the dim lighting, milling crowd, and Levy’s “frantic pace” coupled with Levy’s lack of investigation into the circumstances could permit a reasonable jury to find Levy lacked probable cause in suggesting to the officer that plaintiff should be arrested.

Levy’s making an accusation did not constitute the initiation of a criminal charge because the initiation of the charges was left to the uncontrolled choice of the police officer to bring the proceedings as he saw fit. Lukecart, 256 Iowa at

1281, 130 N.W.2d at 724.

A person who does not himself initiate criminal proceedings may procure their institution in one of two ways: (1) by inducing a third person, either a private person or a public prosecutor to initiate such proceedings, or (2) by prevailing upon a public official to institute them by filing an information. It is, however, not enough that some act of his should have caused the third person to initiate the proceedings. One who gives to a third person, whether public official or private person, information of another's supposed criminal conduct or even accuses such other thereof, causes the institution of such proceedings as are brought by the third person. The giving of the information or the making of the accusation, however, does not constitute a procurement of the proceedings which the third person initiates thereon if it is left to the uncontrolled choice of the third person to bring the proceedings or not as he may see fit.

Id. 256 Iowa at 1281, 130 N.W.2d at 723-24 (quoting Restatement of Torts §

653, cmt b). Levy merely gave the police officer information. Plaintiff did not offer substantial evidence to prove the necessary elements of malicious prosecution. We affirm the district court on this issue.

Plaintiff contends the district court erred in dismissing his claim for punitive damages. Punitive damages may be awarded if one acts with “willful and wanton 15 disregard for the rights or safety of another.” Iowa Code § 668A.1. A definition of “willful and wanton” is when one

has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.

Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 919 (Iowa 1990) (quoting

Prosser and Keeton on Torts § 34, at 213 (5th ed. 1984)). We cannot conclude there is evidence that Levy’s actions or those of the defendants rise to this level.

Accordingly, we determine the district court properly dismissed the plaintiff’s claim for punitive damages.

The next question is whether there was substantial evidence to support a finding the defendants were engaged in a joint venture.

A joint venture is defined as an association of two or more persons to carry out a single business enterprise for profit; also as a common undertaking in which two or more combined their property, money, efforts, skill or knowledge.

Farm-Fuel Prods. Corp. v. Grain Processing Corp., 429 N.W.2d 153, 156 (Iowa

1988). “As a general rule, a joint venture is characterized by a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits and a duty to share the losses.” Id. (quoting Brewer v. Central Constr.

Co., 241 Iowa 799, 806, 43 N.W.2d 131, 136 (1950) (emphasis in original)).

“A partnership or joint adventure, a limited partnership, is usually a contract where two or more persons place their money, labor and skill in some business to be carried on by the partnership, with an agreement to divide the profits and share the losses.” Id. (quoting Pay-N-Taket, Inc. v. Crooks, 259 Iowa

719, 724, 145 N.W.2d 621, 625 (1966)). Characteristics generally accepted as 16 the criteria of a joint venture are (1) a common undertaking; (2) a joint proprietary interest in the subject matter; (3) a mutual right to control; (4) a right to share in the profits; and (5) a duty to share the losses. Id.; see also Brewer, 241 Iowa at

806, 43 N.W.2d at 136. In deciding whether a joint venture agreement exists, “no particular form of expression or formality of execution is necessary. It need not be expressed but may be implied in whole or in part from the conduct of the parties.” Farm-Fuel, 429 N.W.2d at 156 (quoting Pay-N-Taket, 259 Iowa at 724,

145 N.W.2d at 625). “Even the criteria for a joint venture might vary from case to case.” Id. For,

[D]espite the general acceptance of the criteria listed above courts have not laid down any very certain definitions of what constitutes a joint venture, nor have they established a very fixed or certain boundary thereof, contenting themselves in determining whether the facts of a particular case constitute the relationship of joint venture.

Id. (quoting 46 Am. Jur. 2d. Joint Venture § 1, at 22 (1969)).

Plaintiff says he has shown the two corporations operated the bar as a joint venture because, among other things, the major stockholder in each and president of each corporation is the same person; Barmuda owns the real estate and Shagnasty’s rents it; and Barmuda had a consulting contract with

Shagnasty’s and provided management, bookkeeping, and employee training for

Shagnasty’s. The fact that there are two corporations owned by the same person shows an intent to operate two separate corporations and does not show a joint proprietary interest. Nor does the fact that one corporation rents real estate to another show a joint proprietary interest. Rather, it is an indication that one intends to be a landlord and the other a tenant. The fact one corporation operates a bar and another corporation operates as a consulting company to 17 bars does not appear to be an indication of a joint venture. Rather it shows an intention to operate separate businesses rather than sharing a common proprietary interest. These factors standing alone do not support a joint venture as they fail to prove the cornerstone of a joint venture, that is, a common undertaking and a joint proprietary interest. There is other evidence, however, including an informal sharing of profits, that could support a finding of a joint venture. Consequently, we believe a jury question was generated and affirm on this ground.

Defendants also challenge the submission and the verdict that resulted in the jury finding a different percentage of fault against the two corporations.

Defendant rightly points out that the only theory submitted against Barmuda was that of joint venture. Consequently there was no basis for the disparity in the percentage of fault. We are inclined to agree, however, the defendants did not object to the manner of submission that resulted in this verdict. Consequently, the claim was not preserved for our review. Escobedo, 573 N.W.2d at 276-77.

We affirm the district court on the other issues.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

NEW TRIAL.