Opinion
No. 4-040 / 03-0878
Filed March 10, 2004
Appeal from the Iowa District Court for Johnson County, L. Vern Robinson Judge.
Plaintiff-appellant, William J. Lounsbury, appeals the district court's grant of defendant Charles E. Heath's motion for summary judgment. AFFIRMED.
Davis Foster of Foster Law Office, Iowa City, for appellant.
Rene Lapierre and Justin Seurer of Klass, Stoik, Mugan, Villone, Phillips, Orzechowski, Clausen Lapierre, L.L.P., Sioux City, for appellee.
Considered by Huitink, P.J., and Vogel, J., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
The decisive issue in this civil action for damages is whether a duty of care was owed the plaintiff, William J. Lounsbury, by the defendant, Charles E. Heath. Cross motions for summary judgment were filed and the district court sustained defendant Heath's motion. Lounsbury has appealed claiming the district court was incorrect in concluding no duty was owed him by Heath. We affirm.
The facts are not in dispute. Heath owned a house in Iowa City, Iowa. In March 2000 Lounsbury rented the house from Heath. On July 7, 2000, while pursuing his dog, Lounsbury attempted to open the storm door of the house, or prevent it from closing, and his hand and arm went through a glass panel in the door. Lounsbury sustained injury to his arm. The door panels did not have safety glass in them. The house had not been inspected as required by ordinance to determine if it complied with the city housing code. Lounsbury claims the door panels should have been equipped with safety glass, and bases his claim for damages on Heath's failure to provide it.
Heath moved for summary judgment, claiming Heath owed no duty to provide safety glass in the storm door. Lounsbury also moved for summary judgment in his favor on the issue of liability.
We review the court's ruling on summary judgment for errors at law. Racing Ass'n of Cent. Iowa v. Fitzgerald, 648 N.W.2d 555, 557 (Iowa 2002). Summary judgment is appropriate "when there is no genuine issue of material fact and the moving party is entitled to the judgment as a matter of law." Bailey v. Batchelder, 576 N.W.2d 334, 337 (Iowa 1998). Summary judgment is proper when the "only conflict concerns legal consequences flowing from undisputed facts." Jacobs v. Stover, 243 N.W.2d 642, 643 (Iowa 1976). It is the functional equivalent of a directed verdict. Martinko v. H-N-W Ass'n, 393 N.W.2d 320, 321 (Iowa 1986).
Lounsbury's appeal is based on the theory that Heath's failure to have the house inspected was the real culprit. Had it been inspected, he argues, Heath would have been required to replace the whole door which in turn would have brought the local building code into play and would have required replacement of the ordinary glass pane with safety glass. Not surprisingly, Heath claims this injects a new issue into the case, and one on which error was not preserved. Basic preservation of error principles require a ground to be raised in the district court before an appellate court will address it. Devoss v. State, 648 N.W.2d 56, 60 (Iowa 2002).
The amended petition alleges "Heath allowed a dangerous condition to exist wherein a window in a door had unglazed glass." This allegation is incorporated in the divisions on tort, statutory and contractual liability. Heath asserts Lounsbury's claim now that the whole door should have been replaced is new. Lounsbury's reply is that his petition did adequately raise this issue. He cites to his reference to a door in the quoted allegation above. He also directs attention to his petition's division II in which he pleads:
4. The Building Code in effect at that time required safety glazing to be used in storm doors.
5. By failing to obtain a Rental Permit, and consequently failing to install safety glazing in the storm door, Heath has violated Iowa code section 562A15(1)(a).
Even if we assume Lounsbury's amended petition raised the issue he wishes to pursue on appeal — failure to obtain an inspection which in turn would have required replacement of the whole door and consequently the glass — the district court did not address that issue in its ruling. In order to preserve error Lounsbury needed to request the district rule on this theory. State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984) (holding rule 1.904(2) motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory submitted to it for adjudication). Failure of the district court to address the issue precludes our consideration of it. Id.
Perhaps this problem is the reason Lounsbury did not refer us to how and where error had been preserved in his brief. Iowa Rule of Appellate Procedure 6.14(1)( f) requires the appellant "state how the issue was preserved for review, with reference to the places in the record where the issue was raised and decided." Failure to abide by the rule waives the error involved. State v. Rodriquez, 636 N.W.2d 234, 246 (Iowa 2001).
We note the district court did refer to Lounsbury's failure to have the property inspected, but only in respect to the replacement of existing glass with safety glass, not with respect to replacement of the whole door. The court stated:
Heath had not had his rental property inspected (as required by ordinance) to determine if it was in compliance with the city housing code. Nevertheless, the housing inspector has affirmed there would have been no violation for failure to replace existing glass with safety glass. While Heath should not have rented the property without an inspection as required by Iowa City Ordinance, the failure of the inspection was not a cause of Lounsbury's injury.
This simply does not speak to the issue of replacing the whole door.
The district court succinctly framed the issues in this fashion:
Lounsbury has sued his landlord, Heath, on several theories. He alleges Heath breached the warranty of habitability which was owed to his tenant. He asserts this claim on both statutory and common law grounds. Lounsbury also posits Heath was negligent per se because the storm door had ordinary glass in it — not Plexiglass or safety glass. Lounsbury points to the Iowa City Building Code and the requirements that glass in doors must be some form of safety glass.
In spite of the different legal theories advanced, Lounsbury's claim must rise or fall on Heath's responsibility/duty to have removed the ordinary glass from the storm door and replaced it with safety glass.
Lounsbury concedes the glass panel involved in his injury was "grandfathered" in prior to the Iowa City Housing Code's adoption. He attempts to avoid the effect of this by arguing the whole door should have been replaced, an issue we have now determined has not been preserved and will not be considered in this review.
The district court stated in its ruling on Lounsbury's negligence claims:
The court concludes, as a matter of law, that Heath had a duty to abide by the Iowa City Housing Code, not the Iowa City Building Code. Lounsbury asserts the Iowa City Housing Code requires compliance with the provisions of the building code. The court disagrees. The building code requirements only come into play if there is new construction or replacement of the glass in older buildings. Heath's duty under the Iowa City Housing Code is set out in Iowa City Ordinance 14-5E-19(A)(4). That section requires that existing storm windows "shall be maintained in good and functional condition and shall fit well within its frame." The housing code does not, and did not, require Heath to remove the glass storm door window and install safety glass. Only a subsequent replacement would require safety glass per the building code ordinance. [Citation omitted]. There is no evidence nor allegation that the storm door glass was loose or not functioning properly.
The district court also rejected Lounsbury's claim that Heath breached the warranty of habitability, stating:
A breach of the warranty of habitability must be such that the premises are unsafe and thus unfit for habitation. Mease [ v. Fox, 200 N.W.2d 791,] . . . 796 [Iowa 1972]. A breach of the warranty of habitability, as codified in Iowa Code section 562A.15, likewise requires that the condition(s) is such that the premises are unfit for habitation. See Estate of Vazquez v. Hepner, 564 N.W.2d 430 (Iowa 1997).
The evidence here does not approach the situation in Mease, where it was unsafe and unhealthy to occupy the house. Mease, 200 N.W.2d at 796 ("breach of warranty must be of such substantial nature as to render the premises unsafe or unsanitary, and thus unfit for habitation").
We agree with the district court's analysis of the issues it considered and adopt them. Finding no error in the district court's grant of summary judgment in favor of defendant Heath, we affirm.