IN THE SUPREME COURT OF IOWA
No. 15–2143
Filed March 9, 2018
WILMA JEAN KELLOGG,
Appellant,
vs.
CITY OF ALBIA, IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Monroe County, Randy S.
DeGeest, Judge.
The City of Albia seeks further review of a court of appeals decision
that concluded it was not immune from a homeowner’s nuisance suit
and the statute of limitations did not bar recovery for claims related to
flooding that occurred within two years of filing suit. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
AFFIRMED.
Zachary C. Priebe and Jeffrey S. Carter of Jeff Carter Law Offices,
P.C., Des Moines, for appellant.
Sarah E. Crane and Michael C. Richards of Davis, Brown, Koehn,
Shors & Roberts, P.C., Des Moines, for appellee.
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CADY, Chief Justice.
In this appeal, we must decide if a city is statutorily immune from
a homeowner’s nuisance claim stemming from reoccurring flooding in the
basement of her home due to the discharge of rainwater from a storm
sewer located near the home. The district court granted summary
judgment for the City, and the court of appeals reversed the decision of
the district court. On further review, we vacate the decision of the court
of appeals and affirm the decision of the district court. The statute
granting immunity to municipalities for tort claims based on claims of
negligent design and construction of public improvements and facilities,
or failure to upgrade public improvements and facilities, does not bar all
claims for nuisance. It does, however, bar those nuisance claims based
on conditions created by public improvements and facilities designed and
constructed pursuant to generally recognized engineering or safety
standards in existence at the time of construction and without evidence
that the harmful condition creating the nuisance was inherent in the
operation of the improvement or facility itself or evidence of negligent
conduct other than the designated conduct immunized under statute.
I. Factual Background and Proceedings.
In 1972, the City of Albia constructed a storm sewer system in an
area of town as part of a comprehensive development plan. It installed a
twelve-inch storm sewer pipe along 4th Avenue E, with intakes on the
north and south curbs. The storm sewer intercepted the natural
overland flow of water in the area and day-lighted on the north side of
4th Avenue E. The City sized the sewer system to accommodate a
two-year recurrence interval storm. It designed and constructed the
storm sewer system in accordance with the generally recognized
engineering and safety standards of the early 1970s.
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In 1983, a house was constructed on the parcel that contained the
day-lighted storm sewer pipe. The house was positioned on the property
so the exposed pipe was located in the front yard and pointed towards
the home. In 2008, Wilma Kellogg purchased the home. At the time of
the purchase, she was informed the basement had “flooded one time up
the drain,” but a sump pump had been installed to address the problem.
Prior to closing, Kellogg paid for half of the cost of removing moldy
drywall from the basement of the home.
Between 2009 and 2015, the basement flooded after rainfall on
eight or nine occasions. During the flooding, Kellogg experienced water
across the furnished portions of her basement, as well as near the hot
water heater. Often, water leaked down the wall of the basement’s crawl
space. Mold began to appear on the drywall, and photographs of the
basement show multiple mold growths near a wall electrical outlet.
Photographs also demonstrated a ponding effect on Kellogg’s lawn during
heavy rainfall.
In 2010, frustrated by the repeated flooding, Kellogg contacted the
City to request a remedy. Although the mayor and members of the city
council met with Kellogg and assured her they would look into possible
solutions, the City never followed up with Kellogg about the flooding.
Kellogg subsequently contacted the City about the flooding in 2012,
2013, and 2014, but never received any assistance. While waiting for the
City to take action, Kellogg’s basement continued to flood following
periods of heavy rainfall.
On February 25, 2015, Kellogg filed an action against the City in
district court. She alleged the flooding constituted a nuisance and that
the City was negligent in installing the storm sewer pipe. The City filed a
motion for summary judgment. It asserted Kellogg’s claims were barred
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by the state-of-the-art immunity given to municipalities under Iowa Code
section 670.4(1)(h) (2015) and the applicable two-year statute of
limitations under section 670.5.
The district court granted the motion. It found the facts were
undisputed that the storm sewer was built in accordance with the
accepted and generally recognized engineering standards and criteria at
the time of construction. Therefore, the state-of-the-art defense granted
the City immunity from Kellogg’s nuisance and negligence claims.
Additionally, it concluded the statute of limitations also barred the
lawsuit, finding that the period of limitations did not begin anew after
each incident of flooding but began to run after the first incident of
flooding in 2009.
Kellogg appealed. She claimed the immunity statute did not apply
to her claim for nuisance, but only applied to claims based on negligence.
She also claimed the statute-of-limitations period ran anew from each
incident of flooding. Kellogg did not appeal from the dismissal of her
claim based on negligence and did not contest the finding of undisputed
facts made by the district court in ruling on the motion for summary
judgment.
We transferred the case to the court of appeals. The court of
appeals reversed the decision of the district court, concluding Kellogg
established a genuine issue of material fact that a nuisance was created
or was being maintained by the City’s operation of the storm sewer,
without regard to design or specification defects. The City applied for,
and we granted, further review.
II. Standard of Review.
We review a district court’s ruling on a motion for summary
judgment “for correction of errors at law.” Sanon v. City of Pella, 865
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N.W.2d 506, 510 (Iowa 2015) (quoting Ne. Cmty. Sch. Dist. v. Easton
Valley Cmty. Sch. Dist., 857 N.W.2d 488, 491 (Iowa 2014)). Summary
judgment is proper when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.
Thomas v. Gavin, 838 N.W.2d 518, 521 (Iowa 2013) (quoting Iowa R. Civ.
P. 1.981(3)).
III. Statutory Immunity.
We first address whether the City is immune from the nuisance
claim brought by Kellogg. On appeal, Kellogg does not contest the
finding by the district court that the storm sewer was built in accordance
with the standards at the time, but claims the state-of-the-art immunity
does not apply to her claim for nuisance.
A. Municipal Tort Immunity Under Section 670.4(1)(h).
1. The state-of-the-art defense. In 1967, the legislature abrogated
common law governmental tort immunity when it passed the Iowa
Municipal Tort Claims Act. 1967 Iowa Acts ch. 405, § 2 (originally
codified at Iowa Code § 613A.2 (1971), now § 670.2). Under the Act,
“every municipality is subject to liability for its torts and those of its
officers, employees, and agents.” Id. The Act defined torts to mean all
civil wrongs, including actions based on negligence and nuisance. Id. at
§ 1(3). However, the Act retained sovereign immunity for several
enumerated tort claims, and additional enumerated claims were
subsequently added. See Iowa Code § 670.4(1)(a)–(o) (2015).
In 1983, the legislature immunized municipalities from claims
“based upon or arising out of a claim of negligent design or specification,
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negligent adoption of design or specification, or negligent construction or
reconstruction of a . . . public facility,” so long as the facility “was
constructed or reconstructed in accordance with a generally recognized
engineering or safety standard, criteria, or design theory in existence at
the time of the construction or reconstruction.” 1983 Iowa Acts ch. 198,
§ 25 (codified at Iowa Code § 613A.4(8) (1985), now § 670.4(1)(h)).
Further, the legislature excepted municipalities from tort claims for
“failure to upgrade, improve, or alter any aspect of an existing public
improvement or other public facility to new, changed, or altered design
standards.” Id. Thus, cities are immune under the statute from claims
for the negligent design and construction of facilities built pursuant to
the accepted standards in existence at the time and for claims based on
the failure to upgrade facilities to new design standards.
The purpose of section 670.4(1)(h) immunity—often referred to as
the state-of-the-art defense—is twofold. First, it “alleviate[s] municipal
responsibility for design or specification defects, as judged by present
state of the art standards, when the original designs or specifications
were proper at the time the public facility was constructed.” Hansen v.
City of Audubon, 378 N.W.2d 903, 906 (Iowa 1985). Second, the statute
instructs courts to measure a municipality’s duty to avoid
nonconstitutional torts “by the ‘generally recognized engineering or safety
standard, criteria, or design theory’ in existence at the time of the
construction or reconstruction.” Connolly v. Dallas County, 465 N.W.2d
875, 877 (Iowa 1991).
Since the enactment of the statute, we have confined the state-of-
the-art immunity to its limiting language and purpose. In Hansen, we
clarified a municipality may still be held liable for its failure to repair,
operate, or maintain a once-competently designed or constructed public
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facility. 378 N.W.2d at 906–07. When a claim rests upon negligence in
the maintenance of a utility, rather than negligence in the failure to
upgrade a utility, “[n]either the literal terms nor the purposes” of the
statutory immunity are applicable. Id. at 907.
2. Application of statutory immunity to private nuisance claims.
Kellogg seeks to exclude nuisance claims from the state-of-the-art
immunity statute. She argues the statute specifically limits the
immunity defense to claims of negligence, which are distinct from claims
of nuisance. The City argues the state-of-the-art immunity for claims of
negligence cannot be sidestepped by designating the claim as one for
nuisance. It asserts a nuisance claim arising out of flooding from a
properly functioning storm sewer designed and constructed pursuant to
the standards at the time of construction is still a claim “based upon or
arising out of” a claim of negligent design, construction, or a failure to
upgrade.
The Iowa Municipal Tort Claims Act expressly defines a tort to
include a nuisance action. Iowa Code § 670.1(4) (“ ‘Tort’ means every
civil wrong which results in wrongful death or injury to person or injury
to property or injury to personal or property rights and includes but is
not restricted to actions based upon negligence; error or omission;
nuisance . . . .”). Moreover, a plain reading of the statute supports the
conclusion that the state-of-the-art immunity defense extends to
nuisance actions “based upon or arising out of” one of the enumerated
negligence claims. Id. § 670.4(1)(h). The statute does not just immunize
claims of negligent design, construction, or failure to upgrade. It also
immunizes all claims based upon or arising out of claims for the failure
to bring the facility up to today’s standards. Thus, the question turns to
whether the nuisance action brought by Kellogg in this case is a claim
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that is based on or arising out of a claim of negligent design,
construction, or failure to upgrade. The City’s position does not end our
analysis, but establishes the pathway to the resolution of the question
presented.
We have discussed the meaning of the “based upon or arising out
of” language of the statute in prior cases. In Cubit v. Mahaska County,
we examined the scope of municipal emergency-response immunity—a
parallel provision to state-of-the-art immunity. 677 N.W.2d 777, 782–84
(Iowa 2004). Akin to state-of the-art immunity, emergency-response
immunity limits tort claims “based upon or arising out of” actions taken
pursuant to an emergency response. Id. at 782. In that context, we
interpreted “arising out of” to require “some causal connection between
the ‘claim’ and ‘an act or omission in connection with an emergency
response.’ ” Id. at 784 (quoting Iowa Code § 670.4[k]). We held a claim of
negligent supervision falls outside the statutory immunity under section
670.4(1)(k) only if it can “be proved without reference to or reliance upon
the dispatchers’ acts or omissions during the emergency.” Id. We found
one element of a claim of negligent supervision by an employer required a
showing of negligent conduct of an employee. Id. at 785. Since the
employee in the case was an emergency responder, the city was immune
because the claim was necessarily based on or arose out of the actions of
the emergency responder. Id.
Kellogg seizes on the distinction between nuisance claims based on
negligence and those that are independent of negligence. She argues her
nuisance claim is not grounded in any wrongdoing on the part of the City
and does not otherwise rely on conduct within the immunity statute.
Rather, Kellogg focuses only on the intermittent flooding that results
from the storm sewer and contends it interferes with her interest in the
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private use and enjoyment of her property. She argues this claim of pure
nuisance does not rely on any negligence connected to the flooding and is
therefore not within the claims protected by statutory immunity. Based
on Cubit, she contends her pure nuisance claim can necessarily be
proved without reference to or reliance on any negligent design,
construction, or failure to upgrade.
Kellogg’s position is built upon the unique position occupied by
nuisance law within our tort system. In the past, we have observed
“[t]here is perhaps no more impenetrable jungle in the entire law than
that which surrounds the word ‘nuisance.’ ” Guzman v. Des Moines Hotel
Partners, Ltd. P’ship, 489 N.W.2d 7, 10 (Iowa 1992) (alteration in original)
(quoting W. Page Keeton et al., Prosser and Keaton on the Law of Torts
§ 86, at 616–17 (5th ed. 1984)).
Much of the vagueness and uncertainty surrounding the
concept of nuisance is due to the fact that the word itself
does not identify the cause of the problem but simply means
the hurt, annoyance, or inconvenience that results from it.
Id.
Private nuisance is “an actionable interference with a person’s
interest in the private use and enjoyment of the person’s land.” Freeman
v. Grain Processing Corp., 895 N.W.2d 105, 120 (Iowa 2017) (quoting
Perkins v. Madison Cty. Livestock & Fair Ass’n, 613 N.W.2d 264, 271
(Iowa 2000)). The legislature defines nuisance as “[w]hatever is injurious
to health, indecent, or unreasonably offensive to the senses, or an
obstruction to the free use of property, so as essentially to interfere
unreasonably with the comfortable enjoyment of life or property.” Iowa
Code § 657.1(1). The nuisance statute “does not supersede common law
nuisance,” but rather expands upon it. Freeman, 895 N.W.2d at 120.
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Examples of private nuisances include “vibrations, blasting, destruction
of crops, flooding, [and] pollution.” Guzman, 489 N.W.2d at 10.
We have also previously discussed the distinction between
negligence and nuisance:
Negligence is a type of liability-forming conduct, for example,
a failure to act reasonably to prevent harm. In contrast,
nuisance is a liability-producing condition. Negligence may
or may not accompany a nuisance; negligence, however, is
not an essential element of nuisance. If the condition
constituting the nuisance exists, the person responsible for
it is liable for resulting damages to others even though the
person acted reasonably to prevent or minimize the
deleterious effect of the nuisance.
Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998)
(citations omitted). In other words, “nuisance simply refers to the
results; negligence might be the cause.” Martins v. Interstate Power Co.,
652 N.W.2d 657, 661 (Iowa 2002). However, pure nuisance claims—
nuisance claims without any accompanying negligence—require
demonstrating a “degree of danger (likely to result in damage) inherent in
the thing [responsible for the harm], beyond that arising from mere
failure to exercise ordinary care in its use.” Id. at 665 (Cady, J.,
dissenting) (quoting Guzman, 489 N.W.2d at 11).
We adopted the inherent-danger standard from a Missouri
Supreme Court case, Pearson v. Kansas City, 55 S.W.2d 485, 489 (Mo.
1932). Hall v. Town of Keota, 248 Iowa 131, 142, 79 N.W.2d 784, 790
(1956). The Pearson court instructed that a “ ‘nuisance’ does not rest on
the degree of care used, but on the degree of danger existing with the
best of care.” 55 S.W.2d at 489. Further, in order to be liable for
creating a nuisance, a municipality
must have violated the absolute duty of refraining from the
participating acts, not merely the relative duty of exercising
reasonable care, foresight, and prudence in their
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performance. The wrongfulness must have been in the acts
themselves, rather than in the failure to use the requisite
degree of care in doing them, and therein lies the distinction,
under the facts of this case, between “nuisance” and
“negligence.” The one is a violation of an absolute duty; the
other a failure to use the degree of care required in the
particular circumstances—a violation of a relative duty.
Id. at 490 (quoting Herman v. City of Buffalo, 108 N.E. 451, 453 (N.Y.
1915)). The plaintiff in Pearson alleged that three conditions amounted
to a nuisance that caused her injury: a worn elevator main shaft, a
broken latch on the shaft door, and a failure to turn on lights in a
hallway. Id. The court concluded the plaintiff’s injuries were caused by
a lack of due care under the circumstances, “not by an inherently
dangerous condition which would cause damage regardless of the
exercise of a reasonable degree of care.” Id. at 491.
The distinction between nuisance and negligence claims is often
important because common law nuisance generally exists as a separate
area of recovery from negligence only when the danger at issue is
inherent in the activity and not the results of the negligent conduct. See
Guzman, 489 N.W.2d at 11. Thus, we have, on prior occasions,
considered whether a claim for nuisance is actually one for negligence.
In Martins, the operators of a dairy farm sued an electric utility for
injuries to their dairy cows due to the presence of stray voltage from
electrical lines maintained by the utility. 652 N.W.2d at 658–59 (majority
opinion). In addressing the claim based on nuisance, we explained “[t]he
key for such a stand-alone claim of nuisance is that the degree of danger
likely to result in damage must be inherent in the thing itself.” Id. at
664. We surveyed the science behind stray voltage and how other
jurisdictions have approached the issue. Id. at 661–64. We concluded
the farmers satisfied the inherent-danger standard and could proceed on
a pure nuisance claim against the utility because “[s]ome stray voltage
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may always be present as an inherent part of supplying electricity.” Id. at
662 (alteration in original) (quoting Peter G. Yelkovac, Homogenizing the
Law of Stray Voltage: An Electrifying Attempt to Corral the Controversy, 28
Val. U.L. Rev. 1111, 1112–13 (1994)).
In Hall, a poorly maintained traffic pole fell on a young child, who
died from his injuries. 248 Iowa at 134, 79 N.W.2d at 785. The child’s
father and the estate administrator sued the city, alleging, among other
things, it created a nuisance by maintaining the pole in a defective and
dangerous condition. Id. at 133–34; 79 N.W.2d at 785–86. We
concluded the nuisance claim was no more than one for negligence and
found it could not proceed as a separate claim from negligence. Id. at
142, 79 N.W.2d at 790.
Kellogg relies on this distinction by claiming she is only suing for a
dangerous condition inherent in flooding, such as mold and the danger
of mixing water with electricity. She claims this makes her case one for
pure nuisance, not negligent design, construction, or failure to upgrade.
Kellogg emphasizes this claim can proceed under Cubit without reference
to or reliance on any evidence relating to negligence.
3. Kellogg’s nuisance claim. The “based upon or arising out” test
articulated in Cubit examines whether the claim could be established
without using evidence of the immune conduct. The objective of the test
is to make sure a municipality is not exposed to liability for conduct
protected by the statutory immunity. In Cubit, the plaintiff’s claim was
barred because it could not be established without relying on evidence of
immunized conduct. Yet, this critical inquiry is not necessarily
controlled by the burden of proof in every case. As in Cubit, if the
plaintiff can only establish the claim by evidence of immune conduct, the
defendant need only raise the immunity statute as a defense. Yet, when
13
a plaintiff is not required to prove a claim by evidence of immune
conduct, as Kellogg asserts in this case, the defendant can still support
an immunity defense by offering evidence that the conduct responsible
for the condition supporting the nuisance claim is in fact conduct
immunized under the statute.
In this case, Kellogg was not required to prove the City was
negligent to establish a claim for pure nuisance. Yet, she was required to
prove the City engaged in conduct responsible for creating a nuisance.
This proof required Kellogg to show the City was responsible for the
sewer pipe. This was an undisputed fact in the summary judgment
proceedings. At the same time, it was also an undisputed fact that the
City installed the sewer pipe pursuant to design and construction
standards in effect at the time. Additionally, Kellogg made no claim that
the City engaged in conduct outside the framework of the immunity
statute, such as a failure to properly maintain and repair the sewer pipe.
Thus, unlike in Cubit, the defendant needed to establish evidence that
conduct immunized under the statute was the conduct supporting the
claim for nuisance. To establish the affirmative state-of-the-art defense
in this case, the City offered uncontroverted evidence that Kellogg’s
nuisance claim was in fact based on the City’s failure to upgrade the
overburdened sewer pipe. In response, Kellogg failed to contest these
facts. She failed to respond with evidence that the conduct of the City
responsible for the alleged nuisance was the type of conduct not
immunized by the statute.
This approach to determining whether a claim falls within the
immunity under Iowa Code section 670.4(1)(h) is not only consistent with
the purpose and scope of the statute, but consistent with our
long-standing approach to distinguishing between claims of pure
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nuisance and claims of negligence. To establish a claim of pure
nuisance, the claimant must demonstrate a “degree of danger (likely to
result in damage) inherent in the thing [responsible for the harm],
beyond that arising from mere failure to exercise ordinary care in its
use.” Martins, 652 N.W.2d at 665 (Cady, J., dissenting) (quoting
Guzman, 489 N.W.2d at 11). Thus, as with nuisance claims supported
by negligent conduct beyond negligent design, construction, and failure
to upgrade, a pure nuisance claim based on harm inherent in an activity
falls outside the immunity statute.
Accordingly, Kellogg failed to respond to the City’s summary
judgment evidence that her claim is nothing more than a claim alleging a
failure to upgrade the sewer pipe. Moreover, Kellogg cannot change the
outcome by attempting to transform her claim into one of pure nuisance
by limiting her recovery to the inherent dangers of a wet basement, such
as mold. The inherent danger of a pure nuisance claim emanates from
the activity engaged in by the defendant, not the activity’s consequent
irritants. See id. at 662–64 (majority opinion) (assessing the dangers
inherent in supplying electricity, rather than inherent in injured cattle);
see also Hall, 248 Iowa at 142, 79 N.W.2d at 790. Therefore, because
Kellogg did not offer any evidence that the City’s storm sewer system was
inherently dangerous beyond the dangers associated with failing to
upgrade the pipe to accommodate the increased water flow, or that the
claim was otherwise based on conduct not given immunity, summary
judgment on Kellogg’s nuisance claim was properly granted by the
district court.
B. Statute of Limitations. Because Kellogg’s nuisance claim
does not survive summary judgment, we need not reach the issue of
whether Kellogg’s claim was barred by the two-year statute of limitations.
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IV. Conclusion.
Finding Kellogg did not introduce sufficient facts to survive
summary judgment on her nuisance claim, we vacate the decision of the
court of appeals and affirm the judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
All justices concur except Wiggins and Hecht, JJ., who concur
specially.
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#15–2143, Kellogg v. City of Albia, Iowa
WIGGINS, Justice (concurring specially).
I concur in the majority opinion but write separately to stress what
this case is not about. The only other argument besides the statute of
limitations that Wilma Kellogg makes in response to the City of Albia’s
motion for summary judgment is that her nuisance claim is not subject
to the immunity created by the state-of-the-art defense under Iowa Code
section 670.4(1)(h) (2015). As the majority rightly points out, a nuisance
claim is subject to the immunity created by the state-of-the-art defense if
the nuisance is caused by an improvement “that was constructed or
reconstructed in accordance with a generally recognized engineering or
safety standard, criteria, or design theory in existence at the time of the
construction or reconstruction.” Iowa Code § 670.4(1)(h). The
undisputed evidence presented during the summary judgment
proceeding supports the majority’s conclusion that the City constructed
the sewer system in accordance with a generally recognized engineering
standard.
This holding today does not mean a city will be immune from all
nuisances caused by a sewer system constructed in accordance with a
generally recognized engineering standard. For example, if a city took an
existing sewer system constructed in accordance with a generally
recognized engineering standard but later increases the load on the
system beyond the original engineering standards by adding additional
flow to the system, a city may be liable for failing to maintain the system
to accommodate the increased flow. Kellogg did not present any evidence
supporting such a claim in the summary judgment proceeding. Thus, I
believe, based on the limited record, the majority opinion is correct.
Hecht, J. joins this special concurrence.