Claim of Janice & Michael McClain
Barry A. Lindahl
Corporation Counsel
196 CyCare Plaza
Dubuque, Iowa 52001-6824
(319) 583-4113
(319) 583-1040 FAX
E-mail: balesq@mwci.net
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February 16, 1999
Mr. Frank Miller
Claims Manager
Public Entity Risk Services of Iowa
5701 Greendale Road
Johnston, Iowa 50131
RE: Janice McClain and Michael McClain,
vs. City of Dubuque, Iowa.
Dear Frank:
Enclosed is a copy of an Original Notice and Petition filed
against the City of Dubuque in connection with a fall on a wet spot
of sidewalk in the 1500 block of West Third Street on September 15,
1998. Ms. McClain originally filed a claim against the City
through her attorneys on October 16, 1998; the claim was referred
to Public Entity Risk Services for processing on October 26, 1998.
We are forwarding a copies of these documents, together with
the background material on the original claim, to Les Reddick,
Esq., for a defense.
Barry A. Lindahl
Corporation Counsel
BAL/cg/enc
cc - Mr. Michael C. Van Milligen
cc Ms. Mary Davis
cc Mr. Bob Green
cc Les V. Reddick, Esq.
cc Mr. Frank R. O'Connor
Service
People
Integrity
Responsibility
Innovation
Teamwork
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IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE COUNTY
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JANICE McCLAIN and
HICHAEL McCLAIN,
Plaintiffs,
013/1 L Ac.y () '5/ ?D'I
Case No.
vs.
ORIGINAL NOTICE
CITY OF DUBUQUE, IOWA,
Defendant.
TO THE ABOVE-NAMED DEFENDANT(S):
You are notified that a petition has been filed in the office of the
clerk of this court, naming you as the defendant in this action. A copy of
the' petition (and any documents filed with it) is attached to this notice.
The attorney for the plaintiff (s) is David W. Leifker, whose address is 701
CyCare Plaza, 700 Locust Street, Dubuque, Iowa 52001. That attorney's phone
number is 319-557-1354; facsimile number 319-557-5086.
You must serve a motion or answer within 20 days after service of this
original notice upon you and wi thin a reasonable time thereafter, file your
motion or answer with the Clerk or Court for Dubuque County, at the county
courthouse in Dubuque, Iowa. If you do not, judgment by default may be
rendered against you for the relief demanded in the petition.
If you require the assistance of auxiliary aids or services to
participate in court because of a disability, immediately call your district
ADA coordinator at (319) 589-4448. If you are hearing impaired, call Relay
Iowa TTY at 1-800-735-2942).
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(SEAL)
Clerk of Court
Dubuque County Courthouse
Dubuque, Iowa, 52001
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IMPORTANT:
YOU ARE ADVISED TO SEEK LEGAL :~DVISE AT ONCE TO PROTECT YOUR INTERESTS.
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IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE ~eUNT~
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CITY OF DUBUQUE, IOWA,
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JANICE McCLAIN and
MICHAEL :lcCLAIN,
Plaintiffs,
Case No.
vs.
Defendant.
PETITION-AT-LAW
COMES NOW the Plaintiffs, Janice McClain and Michael McClain, by and
through their attorneys and hereby make their claims against the Defendant,
City of Dubuque, Iowa, and state:
1. That the Plaintiffs, Janice McClain and Hichael McClain, are
wife and husband and reside in Grant County, Wisconsin.
2. That the Defendant, City of Dubuque, Iowa, is a municipal
corporation organized and existing under the laws of the State of Iowa in
Dubuque County, Iowa.
3. That on or about April 16, 1998, while walking in an easterly
direction down the public sidewalk adjacent to Cancer Survivors Park near
the intersection of College Street, the Plaintiff, Janice McClain, slipped,
fell, and was injured.
4. That at the time and place when the Plaintiff, Janice McClain,
fell, the place where she fell was wet.
5. The Plaintiff, Janice McClain stepped on the wet portion of the
sidewalk thinking it was only water.
6. That in fact the wet area was unusually slippery due to the
existence of algae and/or other substances on the City \.,ralk which the
Plaintiff, Janice McClain, was not aware of prior to her fall.
7. That the aforesaid condition of the public sidewalk had existed
for a number of days prior to the Plaintiff's fall.
8. That the City of Dubuque, through its employees and/or agents,
knew or should have known of the existence of the above described sidewalk
condition before the Plaintiff, Janice McClain, fell and was injured.
9. That the City of Dubuque, through its employees and or agents,
Page of 3 pages
had reasonable time to correct the said dangerous condition and/or erect
barriers or warnings prior to the aforesaid Plaintiff's fall and injuries,
but failed to do so.
10. That the City of Dubuque was negligent, by and through its
employees and/or agents, in one or more of the following particulars, to-
wit:
a) Allowing
on a public
time;
an usually slippery condition to remain
sidewalk for an unreasonable amount of
b) Allowing a dangerous condition to remain on a
public sidewalk after being notified of the condition;
c) Failing to adequately inspect the said public
sidewalk to determine tvhether an unusually slippery
condition existed due to algae or other substances
accumulating on the wet area of the said walk;
d) Failing to take reasonable measures to prevent
drainage water from running over the walkway for a
substantial period of time;
e) Failing to remove the algae and/or dirt, which
caused the said sidewalk to be unreasonably dangerous
to pedestrians;
f) In allowing a dangerous sidewalk condition to
exist when it knew or should have known a person using
the sidewalk would not realize an unusually slippery
condition existed; and
g) In failing to erect barriers and/or warnings prior
to the Plaintiff's fall so as to prevent users of the
said sidewalk from being injured.
11. That the negligence of the Defendant, City of Dubuque, Iowa,
through its employees and agents, was a proximate c.ause of the injuries and
damages incurred by the Plaintiffs.
12. That as a proximate result of the fall, the Plaintiff , Janice
McClain, sustained a badly fractured right upper arm and resulting injuries
and damages.
13. That as a proximate result of the negligence of the Defendant,
the Plaintiff, Janice McClain, has incurred the following damages:
a) fractured arm' resulting in both past partial
disability and future partial disability;
Page 2 of 3 pages
b) severe pain and suffering in the past and pain and
suffering in the future;
c) hospital and medical expenses in the past and
medical expenses in the future;
d) loss of earnings and earning capacity in the past
and loss of earnings and earning capacity in the
future; and
e) loss of activities and enjoyment of life in the
past and loss of activities and enjoyment of life in
the future.
14. That as a proximate result of the Defendant I s negligence and
~nJuries to his wife, Janice McClain, the Plaintiff, Michael McClain, has
incurred a loss of spousal consortium, services, and support in the past and
will incur a loss in the future.
15. That
minimum amount
herein.
the damages of the Plaintiffs far exceed the statutory
for the District Court to exercise regular jurisdiction
WHEREFORE, the Plaintiffs, Janice McClain and Michael McClain, each
pray that judgments for damages in a fair and reasonable sum be entered
herein against the Defendant, City of Dubuque, Iowa, together with interest
and court costs.
By:
JANICE HcCLAIN and MICHAEL McCLAIN,
Plain?Jjj . J !
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David W. Leifker 000003190
DAVID W. LEIFKER LAW OFFICES
701 CyCare Plaz
700 Locust St
Dubuque, IA 52001
(319) 557-1354
Fax # (319) 557-5086
Attorney for Pla~ntif~
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By: ,;: ~ f!J. ~A,'11i
James ~al~y
~~~8 South Madison sl V
~ncaster, WI 53813
(608) 723-4075
Co-Counsel for Plaintiffs
Page 3 of 3 pages
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IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE COUNTY
CITY OF DUBUQUE, IOWA,
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Plaintiffs,
Case No.
JANICE McCLAIN and
MICHAEL McCLAIN,
vs.
Defendant.
DEMAND FOR JURY TRIAL
The above named Plaintiffs hereby demand trial by jury in this matter.
JANICE McCLAIN and HICHAEL McCLAIN,
Plaintiffs,
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By:
Dav1 . Leifker 00 003190
DAVID W. LEIFKER LAW 0
701 CyCare Plaza
700 Locust St
Dubuque, IA 52001
(319) 557-1354
Fax j (319) 557-5086
Attorney for Plaintiffs
Co-Counsel for Plaintiffs
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IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE COUNTY
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JANICE McCLAIN and
MICHAEL McCLAIN,
Plaintiffs,
01 J II L A L v 0 5-;? 6 c;
Case No.
vs.
ORIGINAL NOTICE
CITY OF DUBUQUE, IOWA,
Defendant.
TO THE ABOVE-NAMED DEFENDANT(S):
You are notified that a petition has been filed in the office of the
clerk of this court, naming you as the defendant in this action. A copy of
the petition (and any documents filed with it) is attached to this notice.
The attorney for the plaintiff(s) is David W. Leifker, whose address is 701
CyCare Plaza, 700 Locust Street, Dubuque, Iowa 52001. That attorney's phone
number is 319-557-1354; facsimile number 319-557-5086.
You must serve a motion or answer within 20 days after service of this
original notice upon you and within a reasonable time thereafter, file your
motion or answer with the Clerk of Court for Dubuque County, at the county
courthouse in Dubuque, Iowa. If you do not, judgment by default may be
rendered against you for the relief demanded in the petition.
If you require the assistance of auxiliary aids or services to
participate in court because of a disability, immediately call your district
ADA coordinator at (319) 589-4448. If you are hearing impaired, call Relay
Iowa TTY at 1-800-735-2942).
..;:~L -
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(SEAL)
Clerk of Court
Dubuque County Courthouse
Dubuque, Iowa, 52001
IMPORTANT:
YOU ARE ADVISED TO SEEK LEGAL ADVISE AT ONCE TO PROTECT YOUR INTERESTS.
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IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQ~~:~eVN~?
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JANICE McCLAIN and
MICHAEL McCLAIN,
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Plaintiffs,
Case No.
vs.
CITY OF DUBUQUE, IOWA,
Defendant.
PETITION-AT-LAW
COMES NOW the Plaintiffs, Janice McClain and Michael McClain, by and
through their attorneys and hereby make their claims against the Defendant,
City of Dubuque, Iowa, and state:
1. That the Plaintiffs, Janice McClain and Michael McClain, are
wife and husband and reside in Grant County, Wisconsin.
2. That the Defendant, City of Dubuque, Iowa, is a municipal
corporation organized and existing under the laws of the State of Iowa in
Dubuque County, Iowa.
3. That on or about April 16, 1998, while walking in an easterly
direction down the public sidewalk adjacent to Cancer Survivors Park near
the intersection of College Street, the Plaintiff, Janice McClain, slipped,
fell, and was injured.
4. That at the time and place when the Plaintiff, Janice McClain,
fell, the place where she fell was wet.
5. The Plaintiff, Janice McClain stepped on the wet portion of the
sidewalk thinking it was only water.
6.
existence
Plaintiff,
That in fact the wet area was unusually slippery due to
of algae and/or other substances on the City walk which
Janice McClain, was not aware of prior to her fall.
the
the
7. That the aforesaid condition of the public sidewalk had existed
for a number of days prior to the Plaintiff's fall.
8. That the City of Dubuque, through its employees and/or agents,
knew or should have known of the existence of the above described sidewalk
condition before the Plaintiff, Janice McClain, fell and was injured.
9. That the City of Dubuque, through its employees and or agents,
Page 1 of 3 pages
.
had reasonable time to correct the said dangerous condition and/or erect
barriers or warnings prior to the aforesaid Plaintiff's fall and injuries,
but failed to do so.
1 0 . Tha t
employees and/or
wit:
the City of Dubuque was negligent, by and through its
agents, in one or more of the following particulars, to-
a) Allowing an usually slippery condition to remain
on a public sidewalk for an unreasonable amount of
time;
b) Allowing a dangerous condition to remain on a
public sidewalk after being notified of the condition;
c) Failing to adequately inspect the said public
sidewalk to determine whether an unusually slippery
condition existed due to algae or other substances
accumulating on the wet area of the said walk;
d) Failing to take reasonable measures to prevent
drainage water from running over the walkway for a
substantial period of time;
e) Failing to remove the algae and/or dirt, which
caused the said sidewalk to be unreasonably dangerous
to pedestrians;
f) In allowing a dangerous sidewalk condition to
exist when it knew or should have known a person using
the sidewalk would not realize an unusually slippery
condition existed; and
g) In failing to erect barriers and/or warnings prior
to the Plaintiff's fall so as to prevent users of the
said sidewalk from being injured.
11. That the negligence of the Defendant, City of Dubuque, Iowa,
through its employees and agents, was a proximate cause of the injuries and
damages incurred by the Plaintiffs.
12. That as a proximate result of the fall, the Plaintiff, Janice
McClain, sustained a badly fractured right upper arm and resulting injuries
and damages.
13. That as a proximate result of the negligence of the Defendant,
the Plaintiff, Janice McClain, has incurred the following damages:
a) fractured arm resulting in both past partial
disability and future partial disability;
Page 2 of 3 pages
.
b) severe pain and suffering in the past and pain and
suffering in the future;
c) hospital and medical expenses in the past and
medical expenses in the future;
d) loss of earnings and earning capacity in the past
and loss of earnings and earning capacity in the
future; and
e) loss of activities and enjoyment of life in the
past and loss of activities and enjoyment of life in
the future.
14. That as a proximate result of the Defendant I s negligence and
lnJuries to his wife, Janice McClain, the Plaintiff, Michael McClain, has
incurred a loss of spousal consortium, services, and support in the past and
will incur a loss in the future.
15. That
minimum amount
herein.
the
for
damages of the Plaintiffs far exceed the statutory
the District Court to exercise regular jurisdiction
WHEREFORE, the Plaintiffs, Janice McClain and Michael McClain, each
pray that judgments for damages in a fair and reasonable sum be entered
herein against the Defendant, City of Dubuque, Iowa, together with interest
and court costs.
JANICE McCLAIN and MICHAEL McCLAIN,
Plain~ s:
Leifker 000003190
DAVID W. LEIFKER LAW OFFICES
701 CyCare Plaz
700 Locust St
Dubuque, IA 52001
(319) 557-1354
Fax # (319) 557-5086
By:
Attorney for Pla~n~~
By: ~l~ ~ M-AI
~es al~y I
1 8 South Madison S,
ancaster, WI 53813
(608) 723-4075
Co-Counsel for Plaintiffs
Page 3 of 3 pages
.
IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE COUNTY
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)
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)
)
)
)
)
)
)
)
****************************************************************************
JANICE McCLAIN and
MICHAEL McCLAIN,
Plaintiffs,
Case No.
vs.
CITY OF DUBUQUE, IOWA,
Defendant.
DEMAND FOR JURY TRIAL
The above named Plaintiffs hereby demand trial by jury in this matter.
JANICE McCLAIN and MICHAEL McCLAIN,
Plaintiffs,
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DaVl . Leifker
DAVID W. LEIFKER LAW
701 CyCare Plaza
700 Locust St
Dubuque, IA 52001
(319) 557-1354
Fax # (319) 557-5086
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Attorney for Plaintiffs
Co-Counsel for Plaintiffs