(dissenting).
I dissent because the trial court’s instructions, read together, overstated the defendant city’s duty of inspection and oversimplified the elements of a cause of action for breach of a city’s statutory responsibility “for the care, supervision, and control” of sidewalks and other public grounds. Iowa Code § 364.12(2) (1983).
Neither the controlling statute, which the majority opinion quotes, nor its referenced predecessors have ever described a city’s duty as one of “inspection.” The active inspection duty referred to in our cases has never been held to be coequal with, or somehow independent of, the duty explicitly described in the statute. To the contrary, our sidewalk cases have explained that the city’s failure to inspect is only one factor for the jury to consider when deciding whether a city has exercised reasonable care in performing its duty for the “care, supervision and control” of its sidewalks. See Beach v. City of Des Moines, 238 Iowa 312, 342, 26 N.W.2d 81, 96 (1947); Krska v. Incorporated Town of Pocahontas, 200 Iowa at 596-97, 203 N.W. at 41; Geer v. City of Des Moines, 183 Iowa 837, 841-42, 167 N.W. 635, 637 (1918).
Once a city sidewalk has been properly constructed or reconstructed, the city’s liability for its defective condition must be predicated on a showing that the city had either actual notice of the defect or constructive notice. Roney v. City of Des Moines, 150 Iowa 447, 452-53, 130 N.W. 396, 398 (1911). Constructive notice can be demonstrated by proof that the defect had continued for a sufficient length of time to confer knowledge and permit repair. Jeffers v. Sioux City, 221 Iowa 236, 239-40, 265 N.W. 521, 523-24 (1936). The length of time sufficient to constitute constructive notice to the city of a dangerous condition in the sidewalk depends on the facts and circumstances of each case. Hovden v. City of Decorah, 261 Iowa 624, 627, 155 N.W.2d 534, 536 (1968). Therefore, the failure of the city to inspect, in and of itself, is not dispositive of the issue of negligence. Inspection is not the equivalent of supervision, nor is a failure to inspect sidewalks negligence in and of itself.
Viewed in that light, challenged instructions fifteen (which in part defined the duty to inspect) and sixteen (the marshaling instruction) were incorrect. The second paragraph of instruction fifteen imposed upon the city an explicit responsibility “for the inspection, repair and maintenance of its sidewalks, including the area where plaintiff claims to have fallen.” (Emphasis added.) The last paragraph of instruction fifteen went even further by stating that the city had a duty “to exercise reasonable care to know whether the areas it is responsible for are in a safe condition.” (Emphasis added.)
Perhaps that erroneous description of the city’s duty, replacing the correct duty *217of care, supervision, and control with an overemphasized duty of “inspection,” would have constituted harmless error if the marshaling instruction, instruction sixteen, had used only the statutory language. The trial court might correctly have adopted the express language of the statute in its charging instruction with the following first sentence:
Plaintiff Sally L. Speehtenhauser asserts that the defendant was negligent in failing to perform its duty to provide reasonable care, supervision, and control of the sidewalk near Grandview Drug in Du-buque, Iowa, where she fell.
Such an instruction would correctly have stated the complete duty of the city, breach of which would constitute actionable negligence.
But the critical marshaling instruction setting forth the elements of plaintiffs’ action compounded the problem of instruction fifteen by identifying as one specification of negligence the plaintiffs’ allegation that the city had failed to “inspect” the sidewalk. Under this marshaling instruction, the plaintiffs were entitled to recover by proving simply that the city did not affirmatively inspect this particular sidewalk and that the failure to inspect, in and of itself, proximately caused plaintiffs’ injury and damages. The city conceded it had no citywide affirmative inspection program and did not know the condition of this sidewalk; consequently, these incorrect instructions essentially stripped the city of any defense on the issue of liability.
The city appropriately used a shotgun, not a rifle, in objecting to the trial court’s instructions, pointing out that a city has no affirmative duty to plan and carry out an inspection of its existing sidewalks. I believe that objection should have been sustained and the instructions drafted accordingly.
I would therefore reverse the district court judgment and remand for a new trial.
HARRIS and McGIVERIN, JJ., join this dissent. .