Opinion
No. 3-516 / 02-1281
Filed November 17, 2003
Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge.
City of Sioux City appeals the district court's finding of liability for flood damage to the Fethkenher home and Fethkenhers cross-appeal the amount of damages awarded in their favor by the district court. AFFIRMED.
James L. Abshier, Sioux City, for appellant/cross-appellee.
Jeff W. Wright of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra Prahl, L.L.P., Sioux City, for appellees/cross-appellants.
Heard by Mahan, P.J., and Vaitheswaran and Eisenhauer, JJ.
Shawn and Staci Fethkenher bought a home in Sioux City. The home flooded several times. The Fethkenhers sued the City for negligent failure to properly design, construct, inspect, and maintain the storm sewer serving their residential area. They prevailed at trial, but did not receive the full amount of damages. On appeal, the City contests liability and on cross-appeal, the Fethkenhers contest damages. We affirm.
I. Liability
The City of Sioux City contends the district court erred in finding it liable for damage to the Fethkenher home. The City argues it 1) owed no duty of care to the plaintiffs and 2) it is immune from liability. The Iowa Supreme Court has decided the first question against the city. See Hansen v. City of Audobon, 378 N.W.2d 903, 904 (Iowa 1985) (noting long-established principles allow tort liability to be imposed upon municipalities that provide drains and sewers), Scholbrock v. City of New Hampton, 368 N.W.2d 195, 197 (Iowa 1985) (providing "Iowa courts have long recognized that a municipality which provides drains and sewers to its residents may be liable in tort if it fails to exercise reasonable skill and care in providing that service."); see alsoIowa Code § 670.2 (1999) (stating "[e]xcept as otherwise provided in this chapter, every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties. . . ."). We will, therefore, focus on the second question.
The City claims it is immune from liability under Iowa Code section 670.4. It relies upon the discretionary function exception pursuant to Iowa Code section 670.4(3) and the negligent design or construction exception pursuant to Iowa Code section 670.4(8). In addition, the City claims one of the rain storms causing water damage to the Fethkenhers' home was an act of God.
A. Discretionary function.
Iowa Code section 670.4(3) confers immunity on a city for
Any claim based upon an act or omission of an officer or employee of the municipality, exercising due care, in the execution of a statute, ordinance, or regulation whether the statute, ordinance or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.
To test whether a city is immune under this provision, we ask 1) whether the challenged conduct was a matter of choice for the acting government employee, and 2) whether the judgment is of the kind the legislature intended to shield from liability under this provision. Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 881 (Iowa 2002).
The Fethkenhers contend the City cannot satisfy the first prong of the test. They maintain that the challenged conduct, the City's failure to properly design, construct, inspect and maintain the storm sewer, was not a matter of choice because the City had a policy requiring engineers to design sewers for a ten-year storm event. See Goodman v. City of Le Claire, 587 N.W.2d 232, 237 (Iowa 1998) (citing Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531, 540-41 (1988)) for proposition that discretionary function exception will not apply when statute, regulation or policy specifically prescribes course of action for an employee to follow). The district court agreed with the Fethkenhers, stating:
The City's expert defined this term as the "reoccurrence interval," meaning a ten-year storm would have a ten percent chance of reoccurring in any given year.
In the case at bar the City's policy required that the drainage system meet the ten-year storm requirement. The policy was not complied with, so the discretionary act exemption does not apply. The City and its employees had no discretion but were obligated to comply with the policy. They failed to do so and harm to the plaintiffs resulted.
We find no error in this ruling. See Messerschmidt, 654 N.W.2d at 881 (setting forth scope of review).
A former city engineer, called as an expert by the Fethkenhers, stated that when he worked for the City, the standard for storm sewer design was a "ten-year storm" and the city had no discretion to design a sewer system below this capacity. He opined that the sewer in question did not satisfy this generally recognized engineering standard.
The City attempted to refute this testimony. Its expert opined that the sewer was reconstructed in 1978 and, in its reconstructed state it met the ten-year standard.
The district court discounted the City's opinion, stating, "[s]ince there was flooding so frequently at the property, it is apparent that the system the City had in place prior to the 2001 work did not conform to the City's policy." The court further noted:
It is granted that a so-called ten-year rainstorm can occur more than once in ten years, but that such occurred eight or ten times within five years is less likely, and that fact lends credibility to [the plaintiff's expert's] opinion that the system installed was not in accord with the City policy, to the detriment of the plaintiffs.
The district court's decision to accord greater weight to the plaintiff's expert is not one we will second guess. See Ely, Inc. v. Wiley, 587 N.W.2d 465, 469 (Iowa 1998); Peoples Natural Gas Co. v. City of Everly, 497 N.W.2d 872, 873 (Iowa 1993).
As city employees lacked discretion to design a sewer system affording less protection than prescribed by the ten-year storm standard, the City could not avail itself of the discretionary function exception to liability.
B. Negligent Design or Construction
Iowa Code section 670.4(8) exempts a city in pertinent part from
Any claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a public improvement . . ., or other public facility 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.
This exception presupposes construction "in accordance with a generally recognized engineering or safety standard." As this sewer was not constructed in accordance with the ten-year storm standard, the City's claim of immunity under this provision also must fail.
C. Act of God
The City next claims that a July 2, 1999 flood that damaged the Fethkenher's home was an "act of God," shielding it from liability. To establish this defense, a defendant must show (1) that the act of God in fact occurred and (2) that the act of God was the sole proximate cause of the plaintiffs' injuries. Keystone Elec. Mfg. Co. v. City of Des Moines, 586 N.W.2d 340, 350-51 (Iowa 1998); cf. Lanz v. Pearson, 475 N.W.2d 601, 603 (Iowa 1991) (identifying following four characteristics of act of God defense: 1) acts limited to forces of nature, 2) occurrence is unusual or extraordinary, 3) occurrence is such that under normal conditions it could not have been anticipated or expected and 4) act of God must be sole proximate cause of harm in question).
In a ruling denying the City's motion for summary judgment on the applicability of this defense, the district court stated,
The court does not believe the defendant can prevail on summary judgment on the act of God defense. Plaintiff has amended their petition to allege numerous acts of water damage which would, by definition, preclude the act of God defense-even if it was otherwise applicable.
Later, in its post-trial ruling, the court found that the Fethkenhers' property was subject to "recurring episodes of flooding." It is clear from this finding that the July 2, 1999 flood was not the sole proximate cause of the damage to the Fethkenhers' home. Therefore, the act of God defense is inapplicable.
II. Damages
The district court found that the "cost to repair the effects of the flooding" on the Fethkenhers' home "could be as much as $36,430." The court nevertheless awarded the Fethkenhers only $5,350 of these costs, finding that was the amount "attributable to the flooding effects during the time the plaintiffs owned the property." The Fethkenhers moved for reconsideration, new trial and additur, contending no evidence existed to support the district court's formula for calculating damages. The district court overruled the motion, stating:
The evidence showed the defective condition causing the damages to the property now owned by the plaintiffs has existed ever since the house was built. The evidence showed that plaintiffs began having water problems shortly after they acquired the home in 1996, and that such had occurred before that time as well. The court does not find the damages cannot be apportioned. Logic dictates that the property's damage occurred over the period that the house was subject to the situation caused by the inadequate drainage, and evidence supports the award made.
The scope of our review of a new trial motion depends on the grounds asserted in the motion. In re Estate of Long ex. rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa 2002). "[I]f the motion is based on a legal question, our review is on error, but if the motion is based on a discretionary ground, we review it for an abuse of discretion." Id.
The Fethkenhers alleged they were entitled to a new trial based on Iowa Rule of Civil Procedure 1.1004(5) (allowing new trial where there is error in fixing amount of recovery in an action for injury to property) and 1.1004(6) (allowing a new trial where decision not supported by sufficient evidence). Our review of rulings under these provisions is for an abuse of discretion. See Fisher v. Davis, 601 N.W.2d 54, 57 (Iowa 1999) (pertaining to rule 1.004(6)); Kerndt v. Rolling Hills Nat'l Bank, 558 N.W.2d 410, 417 (Iowa 1997) (pertaining to rule 1.004(5)). See also McHose v. Physician Clinic Serv., Inc. 548 N.W.2d 158, 162 (Iowa Ct.App. 1996) (reviewing the adequacy of a district court's damage award for an abuse of discretion). Abuse of discretion will be found where a court acts on clearly untenable or unreasonable grounds. Pratt v. Piper, 500 N.W.2d 716, 716 (Iowa Ct.App. 1993).
The district court did not abuse its discretion in apportioning damages based on the amount of time the Fethkenhers lived in the home. The record contains evidence that the area surrounding the home was prone to flooding for many years preceding the Fethkenhers' purchase. Specifically, a real estate appraiser called by the City testified the area "had water problems" going "back to the `60's." Although neither he nor any other witness addressed the precise extent of flood damage before the Fethekenhers moved in or the method, if any, which should be used to allocate those damages, we are convinced the district court acted within its range of discretion in reaching its own conclusions on these damage issues. See Olson v. Nieman's Ltd., 579 N.W.2d 299, 309 (Iowa 1998) (noting some speculation in calculation of damages is acceptable). Accordingly, we affirm the damage award.