Charles W. Thompson And Karyl J. Thompson Vs. James F. Kaczinski And Michelle K. Lockwood

IN THE SUPREME COURT OF IOWA
No. 08–0647
Filed November 13, 2009
CHARLES W. THOMPSON and
KARYL J. THOMPSON,
Appellants,
vs.
JAMES F. KACZINSKI and
MICHELLE K. LOCKWOOD,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Madison County, Darrell J.
Goodhue, Judge.
Plaintiffs appeal from a summary judgment ruling dismissing their
personal injury claims. COURT OF APPEALS DECISION VACATED;
DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN
PART, AND CASE REMANDED.
Randy V. Hefner and Matthew J. Hemphill of Hefner & Bergkamp,
P.C., Adel, for appellants.
Sharon Soorholtz Greer and Melinda G. Young of Cartwright,
Druker & Ryden, Marshalltown, for appellees.
2
HECHT, Justice.
A motorist lost control of his car on a rural gravel road and
crashed upon encountering a trampoline that had been displaced by the
wind from an adjoining yard to the surface of the road. He and his
spouse sued the owners of the trampoline. The district court granted
summary judgment, concluding the defendants owed no duty to the
motorist under the circumstances and the personal injuries resulting
from the crash were not proximately caused by the defendants’ alleged
negligence. As we conclude the district court erred in granting summary
judgment, we reverse and remand this case for trial.
I. Factual and Procedural Background.
James Kaczinski and Michelle Lockwood resided in rural Madison
County, near Earlham, on property abutting a gravel road. During the
late summer of 2006, they disassembled a trampoline and placed its
component parts on their yard approximately thirty-eight feet from the
road. Intending to dispose of them at a later time, Kaczinski and
Lockwood did not secure the parts in place. A few weeks later, on the
night of September 16 and morning of September 17, 2006, a severe
thunderstorm moved through the Earlham area. Wind gusts from the
storm displaced the top of the trampoline from the yard to the surface of
the road.
Later that morning, while driving from one church to another
where he served as a pastor, Charles Thompson approached the
defendants’ property. When he swerved to avoid the obstruction on the
road, Thompson lost control of his vehicle. His car entered the ditch and
rolled several times. Kaczinski and Lockwood were awakened by
Thompson’s screams at about 9:40 a.m., shortly after the accident.
When they went outside to investigate, they discovered the top of their
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trampoline lying on the roadway. Lockwood dragged the object back into
the yard while Kaczinski assisted Thompson.
Thompson and his wife filed suit, alleging Kaczinski and Lockwood
breached statutory and common law duties by negligently allowing the
trampoline to obstruct the roadway. Kaczinski and Lockwood moved for
summary judgment, contending they owed no duty under the
circumstances because the risk of the trampoline’s displacement from
their yard to the surface of the road was not foreseeable. The district
court granted the motion, concluding Kaczinski and Lockwood breached
no duty and the damages claimed by the plaintiffs were not proximately
caused by the defendants’ negligence. The Thompsons appealed. We
transferred the case to the court of appeals, which affirmed the district
court’s ruling. We granted the Thompsons’ application for further review.
II. Scope of Review.
We review a district court’s grant of summary judgment for
correction of errors at law. Iowa R. App. P. 6.907; Clinkscales v. Nelson
Sec., Inc., 697 N.W.2d 836, 840–41 (Iowa 2005). Summary judgment is
appropriate only if there is “no genuine issue as to any material fact” and
“the moving party is entitled to a judgment as a matter of law.” Iowa R.
Civ. P. 1.981(3). The party seeking the summary judgment has the
burden of proof, and the court considering a motion for summary
judgment must view the evidence in the light most favorable to the
nonmoving party. Clinkscales, 697 N.W.2d at 841.
It is well-settled that “questions of negligence or proximate cause
are ordinarily for the jury,” and “only in exceptional cases should they be
decided as a matter of law.” Id.; see also Virden v. Betts & Beer Constr.
Co., 656 N.W.2d 805, 807 (Iowa 2003) (noting summary judgment is
usually inappropriate in negligence cases).
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III. Discussion.
A. Iowa Code Section 318.3. The Thompsons contend Kaczinski
and Lockwood breached a statutory duty to avoid obstructing a highway
right-of-way. See 2006 Iowa Acts ch. 1097, § 3 (codified at Iowa Code
§ 318.3 (2007)). Section 318.3 provides a person “shall not place, or
cause to be placed, an obstruction within any highway right-of-way.” An
“obstruction” is defined as “an obstacle in the highway right-of-way or an
impediment or hindrance which impedes, opposes, or interferes with free
passage along the highway right-of-way.” Iowa Code § 318.1(4). It is
undisputed that the defendants’ trampoline was in the road and that the
defendants did not intend for the trampoline to be there at the time of
the crash. The district court concluded that because the defendants’
failure to secure their trampoline and prevent its displacement to the
roadway was unintentional, their actions did not violate the statute. The
Thompsons contend this was error and that the phrase “cause to be
placed” is intended to address acts that unintentionally result in an
obstruction of the highway. We disagree.
When a statute or rule is plain and its meaning is clear, the rules
of statutory construction do not permit courts to search for meaning
beyond its express terms. State v. Snyder, 634 N.W.2d 613, 615 (Iowa
2001). We generally presume words contained in a statute are used in
their ordinary and usual sense with the meaning commonly attributed to
them. Am. Home Prods. Corp. v. Iowa State Bd. of Tax Review, 302
N.W.2d 140, 143 (Iowa 1981). When not defined in a statute, we
construe a term according to its accepted usage. Id. We resort to rules
of statutory construction when the explicit terms of a statute are
ambiguous. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa
1999). Ambiguity is found in a statute “if reasonable minds could differ
5
or be uncertain as to the meaning of the statute.” Carolan v. Hill, 553
N.W.2d 882, 887 (Iowa 1996). In this case, reasonable minds could
disagree whether the phrase “cause to be placed” addresses only
intentional conduct or if conduct resulting in an unintentional
obstruction is also covered. Accordingly, we shall apply our well-
established rules in interpreting the ambiguous phrase.
Our goal in interpreting a statute is to ascertain legislative intent.
Iowa Ass’n of Sch. Bds. v. Iowa Dep’t of Educ., 739 N.W.2d 303, 309
(Iowa 2007). In determining legislative intent we consider not only the
words used by the legislature, but also the statute’s “subject matter, the
object sought to be accomplished, the purpose to be served, underlying
policies, . . . and the consequences of various interpretations.” State v.
Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). We look to the context in
which the ambiguous phrase is used and consider its relationship to
associated words and phrases. T & K Roofing Co. v. Iowa Dep’t of Educ.,
593 N.W.2d 159, 163 (Iowa 1999). We give “a plain, ordinary meaning to
words, phrases, and punctuation” and presume “that no part of an act is
intended to be superfluous.” TLC Home Health Care, L.L.C. v. Iowa Dep’t
of Human Servs., 638 N.W.2d 708, 713 (Iowa 2002).
The Thompsons contend the prohibition on placing an obstruction
addresses intentional conduct while the prohibition on causing to be
placed addresses unintentional conduct. They posit that if the statute is
not interpreted in this way, the phrase “cause to be placed” is rendered
superfluous.
While the Thompsons’ reading of the statute is certainly a plausible
interpretation, we are not convinced the phrase “cause to be placed” is
rendered superfluous if it addresses intentional behavior. Consider the
example of two landowners. One landowner builds a fence herself within
6
the highway right-of-way. The other landowner hires a contractor to
build a fence in the highway right-of-way. In the first instance, the
landowner has placed the obstruction herself, while in the second
scenario, she has caused the obstruction to be placed. Both are
arguably intentional acts. We conclude the legislature included the
phrase “cause to be placed” to prevent a person from avoiding liability by
simply hiring someone else to do the “placing.”
A review of the entire statutory scheme further convinces us the
legislature did not intend to address negligent or unintentional behavior.
Iowa Code section 318.12 gives the highway authority the ability to
“enforce the provisions of this chapter by appropriate civil or criminal
proceeding” or both. Section 318.6 provides any person who places or
causes an obstruction to be placed “is deemed to have created a public
nuisance punishable as provided in chapter 657.” Section 657.3
provides a person found guilty of causing a public nuisance “shall be
guilty of an aggravated misdemeanor.” We are not inclined to interpret
section 318.3 in a way that would result in punishing ordinary
negligence as an aggravated misdemeanor—a necessary result of
interpreting the statute as the Thompsons urge. Accordingly, we
conclude the district court correctly determined that under the facts
presented here, section 318.3 does not impose a duty upon Lockwood
and Kaczinski to refrain from negligently causing an obstruction to be
placed in the right-of-way.
B. Common Law Duty. An actionable claim of negligence
requires “ ‘ “the existence of a duty to conform to a standard of conduct
to protect others, a failure to conform to that standard, proximate cause,
and damages.” ’ ” Stotts v. Eveleth, 688 N.W.2d 803, 807 (Iowa 2004)
(quoting Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa
7
1999)). Plaintiffs contend Kaczinski and Lockwood owed a common law
duty to exercise reasonable care to prevent their personal property from
obstructing the roadway and to remove their property from the roadway
within a reasonable time after it became an obstruction. Whether a duty
arises out of a given relationship is a matter of law for the court’s
determination. Shaw v. Soo Line R.R., 463 N.W.2d 51, 53 (Iowa 1990).
Our cases have suggested three factors should be considered in
determining whether a duty to exercise reasonable care exists: “ ‘(1) the
relationship between the parties, (2) reasonable foreseeability of harm to
the person who is injured, and (3) public policy considerations.’ ” Stotts,
688 N.W.2d at 810 (quoting J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C.,
589 N.W.2d 256, 258 (Iowa 1999)); accord Leonard v. State, 491 N.W.2d
508, 510–12 (Iowa 1992) (discussing relationship between the parties,
foreseeability of harm to the plaintiff, and public policy considerations
when determining if a psychiatrist owed a duty to protect members of the
public from the violent behavior of a patient). Our previous decisions
have characterized the proposition that the relationship giving rise to a
duty of care must be premised on the foreseeability of harm to the
injured person as “a fundamental rule of negligence law.” Sankey v.
Richenberger, 456 N.W.2d 206, 209–10 (Iowa 1990). The factors have not
been viewed as three distinct and necessary elements, but rather as
considerations employed in a balancing process. Stotts, 688 N.W.2d at
810. “In the end, whether a duty exists is a policy decision based upon
all relevant considerations that guide us to conclude a particular person
is entitled to be protected from a particular type of harm.” J.A.H., 589
N.W.2d at 258.
The role of foreseeability of risk in the assessment of duty in
negligence actions has recently been revisited by drafters of the
8
Restatement (Third) of Torts. “An actor ordinarily has a duty to exercise
reasonable care when the actor’s conduct creates a risk of physical
harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90
(Proposed Final Draft No. 1, 2005) [hereinafter Restatement (Third)]. 1
Thus, in most cases involving physical harm, courts “need not concern
themselves with the existence or content of this ordinary duty,” but
instead may proceed directly to the elements of liability set forth in
section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will
apply in most cases, and thus courts “can rely directly on § 6 and need
not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.
However, in exceptional cases, the general duty to exercise
reasonable care can be displaced or modified. Id. § 6 cmt. f, at 81–82.
An exceptional case is one in which “an articulated countervailing
principle or policy warrants denying or limiting liability in a particular
class of cases.” Id. § 7(b), at 90. In such an exceptional case, when the
court rules as a matter of law that no duty is owed by actors in a
category of cases, the ruling “should be explained and justified based on
articulated policies or principles that justify exempting [such] actors from
liability or modifying the ordinary duty of reasonable care.” Id. § 7 cmt. j,
at 98. Reasons of policy and principle justifying a departure from the
general duty to exercise reasonable care do not depend on the
foreseeability of harm based on the specific facts of a case. Id. “A lack of
1The substance of the Proposed Final Draft No. 1 of the Restatement (Third) of
Torts has been finally approved by both the American Law Institute’s Council and its
membership (with the exception of two comments which are not relevant to our analysis
or disposition in this case). The draft has not been published in final form because the
American Law Institute has expanded the project to include chapters on emotional
harm and landowner liability. Upon completion of the additional chapters, the final text
will be published. American Law Institute, Current Projects,
http://www.ali.org/index.cfm?fuseaction=projects.proj_ip&projectid=16.
9
foreseeable risk in a specific case may be a basis for a no-breach
determination, but such a ruling is not a no-duty determination.” Id.
The assessment of the foreseeability of a risk is allocated by the
Restatement (Third) to the fact finder, to be considered when the jury
decides if the defendant failed to exercise reasonable care.
Foreseeable risk is an element in the determination of
negligence. In order to determine whether appropriate care
was exercised, the factfinder must assess the foreseeable
risk at the time of the defendant’s alleged negligence. The
extent of foreseeable risk depends on the specific facts of the
case and cannot be usefully assessed for a category of cases;
small changes in the facts may make a dramatic change in
how much risk is foreseeable. . . . [C]ourts should leave
such determinations to juries unless no reasonable person
could differ on the matter.
Id. at 97–98. The drafters acknowledge that courts have frequently used
foreseeability in no-duty determinations, but have now explicitly
disapproved the practice in the Restatement (Third) and limited no-duty
rulings to “articulated policy or principle in order to facilitate more
transparent explanations of the reasons for a no-duty ruling and to
protect the traditional function of the jury as factfinder.” Id. at 98–99.
We find the drafters’ clarification of the duty analysis in the Restatement
(Third) compelling, and we now, therefore, adopt it.
The district court clearly considered foreseeability in concluding
the defendants owed no duty in this case. When the consideration of
foreseeability is removed from the determination of duty, as we now hold
it should be, there remains the question of whether a principle or strong
policy consideration justifies the exemption of Kaczinski and Lockwood—
as part of a class of defendants—from the duty to exercise reasonable
care. We conclude no such principle or policy consideration exempts
property owners from a duty to exercise reasonable care to avoid the
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placement of obstructions on a roadway. In fact, we have previously
noted the public’s interest in ensuring roadways are safe and clear of
dangerous obstructions for travelers:
While an abutting landowner is not liable with
respect to highway hazards over which he has no control,
he is under an obligation to use reasonable care to keep his
premises in such condition as not to create hazards in the
adjoining highway. He must conduct operations on his
land in such a manner as not to injure the highway
traveler.
Weber v. Madison, 251 N.W.2d 523, 527 (Iowa 1977) (citation omitted);
see also Fritz v. Parkison, 397 N.W.2d 714, 715 (Iowa 1986) (noting
public policy to keep highways free from obstructions and hazards is
well-developed and clearly recognized); Stewart v. Wild, 196 Iowa 678,
683, 195 N.W. 266, 269 (1923) (“It is the fundamental law of the
highway that it is subject to the use of the traveling public, and that it
must be kept free from such obstructions as are not incident to its use
for travel.”). Accordingly, we conclude the district court erred in
determining Kaczinski and Lockwood owed no common law duty under
the circumstances presented here.
C. Causation. Although the memorandum filed by Kaczinski and
Lockwood in support of their motion for summary judgment raised only
the questions of whether a duty was owed and whether a duty was
breached, the district court concluded the plaintiffs’ claims must fail for
the further reason that they did not establish a causal connection
between their claimed injuries and damages and the acts and omissions
of Kaczinski and Lockwood. Again relying on its determination that the
risk of the trampoline’s displacement from the yard to the roadway was
not foreseeable, the court resolved the causation issue against the
Thompsons as a matter of law.
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We have held causation has two components: cause in fact and
legal cause. Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007). The
decisions of this court have established it is the plaintiff’s burden to
prove both cause in fact and legal (proximate) cause. See City of Cedar
Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 17 (Iowa 2000). The
latter component requires a policy determination of whether “the policy
of the law must require the defendant to be legally responsible for the
injury.” Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996). Causation
is a question for the jury, “ ‘save in very exceptional cases where the facts
are so clear and undisputed, and the relation of cause and effect so
apparent to every candid mind, that but one conclusion may be fairly
drawn therefrom.’ ” Lindquist v. Des Moines Union Ry., 239 Iowa 356,
362, 30 N.W.2d 120, 123 (1947) (quoting Fitter v. Iowa Tel. Co., 143 Iowa
689, 693–94, 121 N.W. 48, 50 (1909)).
We have previously applied the test articulated in the Restatement
(Second) of Torts when determining if a defendant’s conduct is a legal or
proximate cause of the plaintiff’s damages. This test holds “[t]he actor’s
negligent conduct is a legal cause of harm to another if (a) his conduct is
a substantial factor in bringing about the harm, and (b) there is no rule
of law relieving the actor from liability.” Restatement (Second) of Torts
§ 431, at 428 (1965); accord Kelly v. Sinclair Oil Corp., 476 N.W.2d 341,
349 (Iowa 1991). In deciding whether conduct is a substantial factor in
bringing about the harm, we have considered the “proximity between the
breach and the injury based largely on the concept of foreseeability.”
Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 83
(Iowa 2002). The word “substantial” has been used to express “the
notion that the defendant’s conduct has such an effect in producing the
12
harm as to lead reasonable minds to regard it as a cause.” Sumpter v.
City of Moulton, 519 N.W.2d 427, 434 (Iowa Ct. App. 1994).
The formulation of legal or proximate cause outlined above has
been the source of significant uncertainty and confusion. This court’s
adherence to the formulation has been less than consistent. See Gerst,
549 N.W.2d at 816–17 (chronicling inconsistencies in our approach to
questions of proximate causation). Even had it been applied
consistently, the concept of legal or proximate cause itself has been
criticized for confusing factual determinations (substantial factor in
bringing about harm) with policy judgments (no rule of law precluding
liability). Id. at 816. Although we have previously noted our uneven
approach to proximate cause questions and acknowledged the criticism
of the doctrine, we have not yet had the opportunity to clarify this area of
law. Id. at 817. We do now.
“Tort law does not impose liability on an actor for all harm
factually caused by the actor’s tortious conduct.” Restatement (Third)
ch. 6 Special Note on Proximate Cause, at 574. This concept has
traditionally been designated “proximate cause.” While this term is used
extensively and appropriately by courts, practitioners, and scholars, it
causes considerable confusion for juries because it does not clearly
express the idea it is meant to represent. See id. § 29 cmt. b, at 576–77.
The confusion arises when jurors understand “proximate cause” as
implying “there is but one cause—the cause nearest in time or geography
to the plaintiff’s harm—and that factual causation bears on the issue of
scope of liability.” Id. § 29 cmt. b, at 577. Thus, in an attempt to
eliminate unnecessary confusion caused by the traditional vernacular,
13
the drafters of the third Restatement refer to the concept of proximate
cause as “scope of liability.” 2
The drafters of the Restatement (Third) explain that the “legal
cause” test articulated in the second Restatement included both the
“substantial factor” prong and the “rule of law” prong because it was
intended to address both factual and proximate cause. Id. ch. 6 Special
Note on Proximate Cause, at 574. Although the “substantial factor”
requirement has frequently been understood to apply to proximate cause
determinations, see Gerst, 549 N.W.2d at 815–16, the drafters contend it
was never intended to do so. Restatement (Third) § 29 cmt. a, at 576.3
Accordingly, to eliminate the resulting confusion of factual and policy
determinations resulting from the Restatement (Second) formulation of
legal cause, the drafters have opted to address factual cause and scope of
liability (proximate cause) separately. Restatement (Third) ch. 6 Special
Note on Proximate Cause, at 575. The assessment of scope of liability
2The Restatement (Second) rarely used the term “proximate cause,” but instead
used “legal cause” as an umbrella term to address both concepts of factual cause and
proximate cause. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 574.
The drafters of the Restatement (Third) have also abandoned the use of the term “legal
cause” because, like “proximate cause,” it “contributes to the misleading impression
that limitations on liability somehow are about factual cause” and the term has never
become widely accepted and utilized in tort law. Id. at 575.
3Our opinion in Gerst suggested the substantial factor test was developed to
address a situation in which there were two or more causes of the harm to plaintiff and
either of the causes alone would have been sufficient to bring about the harm. In this
situation, because a strict application of the cause-in-fact “but-for” test “would allow
both tortfeasors to avoid liability, courts made the policy decision to nevertheless
impose liability ‘if [the defendant’s conduct] was a material element and a substantial
factor in bringing [the event] about.’ ” Gerst, 549 N.W.2d at 815 (quoting W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 267 (5th ed. 1984)). Citing
Prosser, we suggested in Gerst that “the substantial factor test was originally intended
to address a legal causation issue, not one of causation in fact.” Id. at 815–16. Having
reexamined the question, we concur with the drafters of the Restatement (Third) on this
point. The Restatement (Third) addresses the problem of multiple sufficient causes as
part of the factual cause determination. See Restatement (Third) § 27, at 452.
14
under the Restatement (Third) no longer includes a determination of
whether the actor’s conduct was a substantial factor in causing the harm
at issue, a question properly addressed under the factual cause rubric.
See id. § 27 cmt. j, at 427–29. 4
Most importantly, the drafters of the Restatement (Third) have
clarified the essential role of policy considerations in the determination of
the scope of liability. “An actor’s liability is limited to those physical
harms that result from the risks that made the actor’s conduct tortious.”
Id. § 29, at 575. This principle, referred to as the “risk standard,” is
intended to prevent the unjustified imposition of liability by “confining
liability’s scope to the reasons for holding the actor liable in the first
place.” Id. § 29 cmt. d, at 579–80. As an example of the standard’s
application, the drafters provide an illustration of a hunter returning
from the field and handing his loaded shotgun to a child as he enters the
house. Id. cmt. d, illus. 3, at 581. The child drops the gun (an object
assumed for the purposes of the illustration to be neither too heavy nor
unwieldy for a child of that age and size to handle) which lands on her
foot and breaks her toe. Id. Applying the risk standard described above,
the hunter would not be liable for the broken toe because the risk that
made his action negligent was the risk that the child would shoot
someone, not that she would drop the gun and sustain an injury to her
foot. Id.
The scope-of-liability issue is fact-intensive as it requires
consideration of the risks that made the actor’s conduct tortious and a
determination of whether the harm at issue is a result of any of those
4We noted in Gerst, 549 N.W.2d at 817, but did not decide the question whether
the substantial factor test should be eliminated.
15
risks. Id. § 29 cmt. d, at 580, 584. When, as in this case, the court
considers in advance of trial whether
the plaintiff’s harm is beyond the scope of liability as a
matter of law, courts must initially consider all of the range
of harms risked by the defendant’s conduct that the jury
could find as the basis for determining [the defendant’s]
conduct tortious. Then, the court can compare the plaintiff’s
harm with the range of harms risked by the defendant to
determine whether a reasonable jury might find the former
among the latter.
Id. at 580.
The drafters advance several advantages of limiting liability in this
way. First, the application of the risk standard is comparatively simple.
Id. cmt. e, at 585. The standard “appeals to intuitive notions of fairness
and proportionality by limiting liability to harms that result from risks
created by the actor’s wrongful conduct, but for no others.” Id. It also is
flexible enough to “accommodate fairness concerns raised by the specific
facts of a case.” Id.
Foreseeability has previously played an important role in our
proximate cause determinations. See Virden, 656 N.W.2d at 808. For
example,
“ ‘An injury that is the natural and probable consequence of
an act of negligence is actionable, and such an act is the
proximate cause of the injury. But an injury which could
not have been foreseen or reasonably anticipated as the
probable result of an act of negligence is not actionable and
such an act is either the remote cause, or no cause
whatever, of the injury.’ ”
Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 568–69 (Iowa 1997)
(quoting Fly v. Cannon, 836 S.W.2d 570, 574 (Tenn. Ct. App. 1992)).
When, as in this case, we have been called upon to consider the role of
an intervening or superseding cause, the question of the foreseeability of
the superseding force has been critical. See Summy v. City of Des
16
Moines, 708 N.W.2d 333, 342 (Iowa 2006); Clinkscales, 697 N.W.2d at
843.
The drafters of the Restatement (Third) explain that foreseeability
is still relevant in scope-of-liability determinations. “In a negligence
action, prior incidents or other facts evidencing risks may make certain
risks foreseeable that otherwise were not, thereby changing the scope-of-
liability analysis.” Restatement (Third) § 29 cmt. d, at 584–85. In fact,
they acknowledge the similarity between the risk standard they articulate
and the foreseeability tests applied by most jurisdictions in making
causation determinations in negligence cases.
Properly understood, both the risk standard and a
foreseeability test exclude liability for harms that were
sufficiently unforeseeable at the time of the actor’s tortious
conduct that they were not among the risks—potential
harms—that made the actor negligent. . . . [W]hen scope of
liability arises in a negligence case, the risks that make an
actor negligent are limited to foreseeable ones, and the
factfinder must determine whether the type of harm that
occurred is among those reasonably foreseeable potential
harms that made the actor’s conduct negligent.
Id. § 29 cmt. j, at 594. Although the risk standard and the foreseeability
test are comparable in negligence actions, the drafters favor the risk
standard because it “provides greater clarity, facilitates clearer analysis
in a given case, and better reveals the reason for its existence.” Id. They
explain that a foreseeablity test “risks being misunderstood because of
uncertainty about what must be foreseen, by whom, and at what time.”
Id. at 595.
We find the drafters’ clarification of scope of liability sound and are
persuaded by their explanation of the advantages of applying the risk
standard as articulated in the Restatement (Third), and, accordingly,
adopt it.
17
Our next task, then, is to consider whether the district court erred
in concluding the harm suffered by the Thompsons was, a matter of law,
outside the scope of the risk of Kaczinski and Lockwood’s conduct. We
conclude the question of whether a serious injury to a motorist was
within the range of harms risked by disassembling the trampoline and
leaving it untethered for a few weeks on the yard less than forty feet from
the road is not so clear in this case as to justify the district court’s
resolution of the issue as a matter of law at the summary judgment
stage. A reasonable fact finder could determine Kaczinski and Lockwood
should have known high winds occasionally occur in Iowa in September
and a strong gust of wind could displace the unsecured trampoline parts
the short distance from the yard to the roadway and endanger motorists.
Although they were in their home for several hours after the storm
passed and approximately two-and-a-half hours after daybreak,
Kaczinski and Lockwood did not discover their property on the nearby
roadway, remove it, or warn approaching motorists of it. On this record,
viewed in the light most favorable to the Thompsons, we conclude a
reasonable fact finder could find the harm suffered by the Thompsons
resulted from the risks that made the defendants’ conduct negligent.
Accordingly, the district court erred in deciding the scope-of-liability
question as a matter of law in this case.
IV. Conclusion.
The district court correctly determined Kaczinski and Lockwood
owed no statutory duty pursuant to Iowa Code section 318.3 under the
circumstances of this case. Therefore, we affirm the district court’s
dismissal of this claim. However, the district court erred in concluding
Kaczinski and Lockwood owed the Thompsons no common law duty. As
a reasonable fact finder could conclude the Thompsons’ injuries and
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damages were within the scope of the risk of Kaczinski and Lockwood’s
acts or omissions, the district court erred in resolving the scope of
liability question as a matter of law. Accordingly, we reverse the district
court’s dismissal of this claim and remand this case for trial.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE
REMANDED.
All justices concur except Cady, J., who concurs specially and
Streit, J., who takes no part.
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#68/08–0647, Thompson v. Kaczinski
CADY, Justice (specially concurring).
I concur with the result reached by the majority, but write
separately to express two brief points.
First, the majority holds that the defendants had a common-law
duty to reasonably secure outdoor personal property from being
displaced by the wind. While I agree with the holding, I believe it should
be narrowly construed to the facts of this case. A narrow construction is
necessary because there may be a point when public-policy
considerations would intervene to narrow the duty to exclude some items
of personal property placed or kept by homeowners and others outside a
home, such as patio and deck furniture and curbside waste disposal and
recycling containers.
Second, the majority utilizes a causation or scope-of-liability
analysis to deny summary judgment on the basis that a “reasonable fact
finder could determine [the defendants] should have known . . . a strong
gust of wind could displace the unsecured trampoline . . . and endanger
motorists.” Yet, they identify no facts or offer any common knowledge to
explain such a conclusion. All that is known from the summary
judgment proceeding is the trampoline was “disassembled” and “placed”
in the yard. In truth, there are no facts in the record at this point to
show or explain how the wind could have moved the trampoline.
Moreover, without such facts, the incident cannot be explained by
common knowledge. Consequently, the absence of such facts or
common knowledge, not an unsupported conclusion, should supply the
reason to deny summary judgment.
Summary judgment can only be granted when the facts are clear
and undisputed. Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994)
20
(stating parties must establish the undisputed facts compelling a
particular outcome under controlling law). If the facts, disputed or
undisputed, showed the trampoline in this case was positioned in the
yard in such a way that a reasonable person with common knowledge
could understand that wind could enter under the trampoline tarp and
lift the trampoline, then a reasonable fact finder could determine the
incident was within the range of harms of leaving a trampoline in the
yard to support causation or scope of liability. On the other hand, if the
undisputed facts showed the trampoline tarp was attached to the metal
ring and positioned flat on the ground, a court may very well be justified
in concluding the incident was not within the risks of leaving a
trampoline in the yard. Thus, summary judgment should be denied in
this case because the facts are unclear and uncertain. It is inappropriate
for a court to make a legal determination that a reasonable person
should have known or appreciated the ability of wind to lift and carry a
trampoline without knowing the particular facts and circumstances.