Belz v. State ( 2024 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 23-1611
    Filed October 30, 2024
    MICHAEL BELZ, individually and as Executor of the Estate of GERALD M.
    BELZ, and SHERINE BELZ, individually,
    Plaintiffs-Appellants,
    vs.
    STATE OF IOWA
    Defendant-Appellee.
    ________________________________________________________________
    Appeal from the Iowa District Court for Johnson County, Elizabeth Dupuich,
    Judge.
    Plaintiffs appeal the district court’s order striking a report of their expert,
    granting summary judgment, and dismissing their wrongful-death action against
    the State. AFFIRMED.
    Dominic Pechota of Trial Lawyers for Justice, P.C., Decorah, for appellants.
    Brenna Bird, Attorney General, Eric Wessan, Solicitor General, Adam
    Kenworthy, Assistant Attorney General, and Alexa S. Den Herder (until
    withdrawal), Assistant Solicitor General for appellee State.
    Heard by Tabor, C.J., Ahlers, J., and Potterfield, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206
    (2024).
    2
    AHLERS, Judge.
    Gerald Belz, a freshman at the University of Iowa, died from exposure to
    severely cold weather after leaving his residence hall late at night without his key
    card and adequate clothing. His mother, individually, and his father, individually
    and as executor of his estate, brought a wrongful-death and loss-of-consortium
    action against the State. They claim the state-owned university was negligent in
    unexpectedly locking a door to Gerald’s residence hall without notice and such
    negligence caused Gerald’s death. The district court granted summary judgment
    to the State based on discretionary-function immunity and struck a report
    submitted by the parents’ expert as untimely. The parents appeal.
    I.     Factual and Procedural Background
    In late January 2019, Iowa City experienced a polar vortex, which brought
    extremely cold temperatures and strong winds to the area. The University of Iowa
    canceled classes from January 29 at 5:00 p.m. through January 31 at 12:00 p.m.,
    but the university remained otherwise operational.
    To prepare university facilities for the extreme weather, facilities and
    maintenance staff monitored the various buildings on campus. Staff discovered
    that a sprinkler head in the east/main vestibule of Burge Hall was at risk of freezing
    due to the cold temperatures. The vestibule is formed by two sets of doors—an
    exterior set and an interior set. Typically, the inner set of doors to the east entrance
    locked at 10:00 p.m., requiring residents of Burge Hall to use their campus
    identification card to enter the building, while the outer doors remained unlocked
    such that people could access the vestibule space. To prevent the sprinkler head
    from freezing, which could trigger the fire alarm and result in all residents
    3
    evacuating the building into the severe weather, staff propped open the inner set
    of doors so that heated air from the building would warm the vestibule and prevent
    any freezing. Because the inner doors were propped open, staff then locked the
    outer set of doors at 10:00 p.m. to secure the residence hall. However, residents
    were still able to gain entry to the building through the outer doors by using their
    identification cards. Residents could also use their identification cards to access
    entrances on the other three sides of the building.
    On the night of January 29, Gerald drank alcohol and vaped THC in Burge
    Hall, where he and his roommate lived. Gerald became sick. At 1:09 a.m. on
    January 30, Gerald, underdressed for the weather, went outside Burge Hall’s west
    door.1 He did not have his identification card with him, as he had left it in his wallet
    in his room. As shown on security-camera footage, Gerald fell over and was
    motionless. Roughly an hour and forty minutes later, university police found him
    in an alleyway between the memorial union parking ramp and Halsey Hall. Gerald
    was transported to the hospital where he was declared dead from hypothermia.
    Gerald’s parents, individually and as executor of his estate, brought this
    action against the State and the university claiming wrongful-death and loss of
    consortium. They contend that the university was negligent for locking the exterior
    doors to the east entrance of Burge Hall on the evening of January 29.
    The State moved for summary judgment. It claimed discretionary-function
    immunity and contended that the Belzes failed to establish a genuine issue of
    material fact as to causation with respect to whether Gerald ever attempted to use
    1 This was captured on security-camera footage.
    4
    the locked exterior doors at the east entrance of Burge Hall. The State also moved
    to strike a supplemental report from the Belzes’ expert. The district court granted
    the motion to strike the supplemental report, agreed the State was entitled to
    discretionary-function immunity, and granted the State’s motion for summary
    judgment.2
    The Belzes appeal.
    II.    Scope and Standard of Review
    Our review of a grant of summary judgment is for correction of errors at law.
    Stevens v. Iowa Newspapers, Inc., 
    728 N.W.2d 823
    , 827 (Iowa 2007). “Summary
    judgment is appropriate only when the entire record demonstrates that no genuine
    issue of material fact exists and the moving party is entitled to judgment as a matter
    of law.” Id.; Iowa R. Civ. P. 1.981(3). Material facts are those that affect the
    outcome of the suit, and a fact issue “is genuine if the evidence would allow a
    reasonable jury to return a verdict for the nonmoving party.” In re Est. of Franken,
    
    944 N.W.2d 853
    , 858 (Iowa 2020) (cleaned up).            “The record on summary
    judgment includes the pleadings, depositions, affidavits, and exhibits presented.”
    Stevens, 728 N.W.2d at 827. We review the record in the light most favorable to
    the nonmoving party and make on their behalf all “legitimate inference[s] that can
    be reasonably deduced from the record.”          Homeland Energy Sols., LLC v.
    2 The district court noted it was likely it would have found that the Belzes failed to
    generate a fact question as to whether Gerald tried to use the east entrance the
    night he died. However, the court did not make a definitive ruling on this issue,
    finding it unnecessary in light of its ruling dismissing the claims on the
    discretionary-function-immunity ground.
    5
    Retterath, 
    938 N.W.2d 664
    , 683 (Iowa 2020) (quoting Phillips v. Covenant Clinic,
    
    625 N.W.2d 714
    , 717–18 (Iowa 2001)).
    III.   Discussion
    On appeal, the Belzes argue that the district court erred in applying
    discretionary-function immunity to this tort action.3 In doing so, the Belzes seek
    refinement of the discretionary-function-immunity test. However, we need not
    address discretionary-function immunity in this appeal.              Instead, finding a
    fundamental flaw in the Belzes’ underlying substantive claims, we elect to address
    an alternative basis to affirm the district court—lack of causation. See Rivera v.
    Clear Channel Outdoor, LLC, 7 N.W.3d 734, 739 (Iowa 2024) (recognizing that an
    appellate court “may still affirm if there is an alternative ground, raised in the district
    court and urged on appeal, that can support the court’s decision” (citation
    omitted)).
    Causation has two components: factual cause and scope of liability. State
    v. Roache, 
    920 N.W.2d 93
    , 101 (Iowa 2018). Factual causation is evaluated using
    3 Prior to the passage of the Iowa Tort Claims Act (ITCA), “tort suits could not be
    brought against the state because such suits were prohibited by the doctrine of
    sovereign immunity.” Wagner v. State, 
    952 N.W.2d 843
    , 856 (Iowa 2020) (citation
    omitted). Following passage of the ITCA, the State may be liable in tort “only in
    the manner and to the extent to which consent has been given by the legislature.”
    
    Id.
     (citation omitted). “By enacting the ITCA, the State waived this immunity and
    opened itself to suit, but it did so strictly on its terms. Simply stated, the ITCA sets
    the metes and bounds of the State’s liability in tort.” 
    Id. at 857
     (cleaned up).
    Discretionary-function immunity is an exception to the state’s waiver of its
    sovereign immunity. See 
    Iowa Code § 669.14
    (1). Under this exception, “[t]he
    State does not waive its sovereign immunity for actions ‘based upon the exercise
    or performance or the failure to exercise or perform a discretionary function or duty
    on the part of a state agency or an employee of the state, whether or not the
    discretion be abused.’” Anderson v. State, 
    692 N.W.2d 360
    , 364 (Iowa 2005)
    (quoting 
    Iowa Code § 669.14
    (1)).
    6
    the “but-for” test:
    The defendant’s conduct is a cause in fact of the plaintiff’s harm if,
    but-for the defendant’s conduct, that harm would not have occurred.
    The but-for test also implies a negative. If the plaintiff would have
    suffered the same harm had the defendant not acted negligently, the
    defendant’s conduct is not a cause in fact of the harm.
    
    Id.
     (cleaned up).
    The Belzes concede that, to generate a jury question with respect to factual
    causation that would avoid summary judgment, they must present some evidence
    that Gerald attempted to access the east entry vestibule of Burge Hall the night he
    died. This is because if Gerald didn’t try to access the east doors, then the locking
    of those doors caused no harm to Gerald.          The Belzes contend they have
    presented sufficient evidence to generate a jury question on Gerald’s attempt to
    access the east doors. They contend a jury could infer he would try to access the
    east vestibule after he failed to gain entry through the west entrance because doing
    so was a reasonable course of action given that the east vestibule had an
    emergency access phone that could be used by those who forgot their university
    identification cards to call the front desk. They also point to the lack of security
    footage showing Gerald not attempting to access the east vestibule.4 They also
    reason that, because police found Gerald by another university building, a jury
    could conclude he had been walking around campus trying to find an unlocked
    door after first trying to access the east vestibule door. While we view the facts in
    the light most favorable to the Belzes as the non-moving party, the theories
    asserted by the Belzes are no more than speculation unsupported by any record
    4 To be clear, there is no security footage showing Gerald at the east vestibule of
    Burge Hall the night he died.
    7
    evidence.    See Hlubek v. Pelecky, 
    701 N.W.2d 93
    , 96 (Iowa 2005).              And
    “[s]peculation is not sufficient to generate a genuine issue of fact.” 
    Id.
     The Belzes
    simply presented no evidence that Gerald attempted to gain access to the east
    doors of Burge Hall.
    Faced with the lack of record evidence supporting their contention that
    Gerald tried to gain entry at the east doors, the Belzes ask us to expand the record.
    They ask us to consider a report relating to cell phone data produced by their
    expert, which they claim shows Gerald’s phone in the vicinity of the east vestibule.
    They contend this is evidence Gerald attempted to access the east doors. The
    report is not part of the record supporting the Belzes’ contention that they have
    generated a fact question on causation because the district court struck that report
    as untimely. The Belzes contend that the district court abused its discretion when
    it did so. See Hagenow v. Schmidt, 
    842 N.W.2d 661
    , 669 (Iowa 2014) (“We review
    for abuse of discretion discovery rulings on whether to exclude evidence as a
    sanction for untimely disclosure.”), overruled on other grounds by Alcala v. Marriott
    Int’l, Inc., 
    880 N.W.2d 699
     (Iowa 2016).
    The Belzes were required to certify their expert witnesses and provide
    expert reports on or before February 9, 2023, and did so. But they submitted a
    second expert report as part of a supplemental discovery response that they
    characterized as a “supplemental” expert report dated May 26 and provided by the
    Belzes on June 1—well past the February 9 deadline. It was this “supplemental”
    report that included the cell phone data the Belzes seek to use in support of their
    claim that they have generated a fact question on Gerald’s attempt to access the
    east doors. But the State moved to strike the report from the record because the
    8
    Belzes provided the report after the February 9 deadline and it discussed different
    topics than the expert’s initial report. We agree with the State that the second
    expert report, which discussed geolocation data extracted from Gerald’s cell
    phone, is not a supplemental report to the expert’s initial report, which discussed
    health data extracted from Gerald’s cell phone.        Cf. Iowa R. Civ. P. 1.508(3)
    (explaining that supplemental reports should supplement the expert’s report and
    characterizing it as “additions or changes” to the original report). As the second
    report is not a supplemental report, the Belzes were required to provide the State
    with the second report before the February 9 deadline.           See Iowa R.s Civ.
    P. 1.500(2)(d), (e), .508(3). And the State was justified in moving to strike the
    second report as untimely. See Iowa R. Civ. P. 1.517(2)(b)(3).
    Still, striking the report “is an extreme sanction” that is justified only when
    the report would be prejudicial. Cf. Hagenow, 842 N.W.2d at 672. To evaluate
    whether to strike the report, the court considers:
    1. the parties’ reasons for not providing the challenged
    evidence during discovery;
    2. the importance of the evidence;
    3. the time needed for the other side to prepare to meet the
    evidence; and
    4. the propriety of granting a continuance.
    Id. (citation omitted). The district court considered these factors and struck the
    second report. In doing so, the court concluded that the report provided little insight
    because it was not reliable standing alone, noting that the report concedes that the
    phone extraction data should be considered with “other corroborating evidence”
    and “reliable extrinsic or circumstantial evidence regarding how the phone was
    held, by whom, and under what circumstances.” The court also noted that the
    9
    underlying extraction data had been available to the Belzes for more than a year
    prior to the expert report deadline, and the Belzes had previously conceded that
    they were not going to present evidence regarding geolocation information from
    Gerald’s cell phone.5 These were permissible considerations for the court to rely
    upon to strike the second report. The Belzes have failed to establish that the
    district court abused its discretion when striking the second report. Cf. Garrison v.
    New Fashion Pork LLP, No. 18-CV-3073-CJW-MAR, 
    2020 WL 1318806
    , at *3–8
    (N.D. Iowa Jan. 23, 2020) (applying similar federal rules of civil procedure and
    concluding an untimely second expert report is not a supplemental report and must
    be stricken).
    Because the court did not abuse its discretion when striking the second
    report, it is not in our record and the Belzes cannot rely on the report to generate
    a fact question with respect to factual causation. As a result, the record contains
    no evidence to create a question of material fact regarding whether Gerald
    attempted to access the east vestibule entrance of Burge Hall the night he died.
    5 Prior to the late disclosure of the expert’s report, the expert was deposed. During
    the deposition, when the scope of the expert’s testimony was questioned, the
    Belzes’ counsel stated:
    Just so you understand.          It’s—there was a bunch of
    geolocation data too, like when it hits Wi-Fi, kind of like the stuff we
    got from you guys, which note it hits.
    We asked [the expert], well, from looking at the phone, can
    you get us even better locations as to where he was?
    And there was stuff showing [Gerald] walking around Burge
    Hall, because the problem is it also shows he was at places, like,
    across the river that we know is not accurate; and so since he
    couldn’t tell us, you know, reliably:
    “Yes, absolutely, I know this is where he was.”
    We said: “Then don’t contain it in the report because we’re not
    going to be asking you any questions about it.”
    10
    Accordingly, the Belzes cannot establish that had the university not locked the
    exterior vestibule door to the east entrance of Burge Hall, Gerald would not have
    died. So, they cannot establish the factual-causation component of causation.
    See Roache, 920 N.W.2d at 101.
    We affirm the district court’s grant of summary judgment on this alternative
    ground.
    AFFIRMED.
    

Document Info

Docket Number: 23-1611

Filed Date: 10/30/2024

Precedential Status: Precedential

Modified Date: 10/30/2024