Gries v. Ames Ecumenical Hous., Inc.

• Decision Date: 05 June 2020
• Docket Number: No. 19-1306,19-1306
• Parties: Debra GRIES, Appellant, v. AMES ECUMENICAL HOUSING, INC. d/b/a Stonehaven Apts., Appellee.
• Court: Iowa Supreme Court

944 N.W.2d 626

Debra GRIES, Appellant,

v.AMES ECUMENICAL HOUSING, INC. d/b/a Stonehaven Apts., Appellee.

No. 19-1306

Supreme Court of Iowa.

Filed June 5, 2020

Frederick W. James of The James Law Firm, P.C., Des Moines, and Shawn Smith of Shawn Smith, Attorney at Law, PLLC, Ames, for appellant.

Michael C. Richards and Daniela Erickson of Davis, Brown, Koehn, Shors & Robert, P. C., for appellee.

Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for amici curiae Iowa Defense Counsel Association, Iowa Insurance Institute, and Iowa Association of Business and Industry.

McDONALD, Justice.

Debra Gries slipped and fell on an icy sidewalk outside her apartment building. She filed a negligence suit against her landlord, Ames Ecumenical Housing, Inc. d/b/a Stonehaven Apartments (Stonehaven). The district court granted Stonehaven's motion for summary judgment, holding, pursuant to the continuing storm doctrine, Stonehaven had no duty at the time Gries fell to remove or ameliorate the natural accumulation of snow or ice on the sidewalk. On appeal, Gries argues this court should abandon the continuing storm doctrine in light of this court's adoption of the duty analyses set forth in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. (Am. Law Inst. 2010) [hereinafter Restatement (Third) ]. She argues, in the alternative, the district court erred in holding Stonehaven was entitled to judgment as a matter of law pursuant to the continuing storm doctrine.

I.

Our review is for the correction of legal error. See Baker v. City of Iowa City , 867 N.W.2d 44, 51 (Iowa 2015). Summary judgment is appropriate "if 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 judgment as a matter of law." Iowa R. Civ. P. 1.981(3). The party seeking summary judgment has the burden of establishing that the facts are undisputed and that the "party is entitled to a judgment as a matter of law." Estate of Harris v. Papa John's Pizza , 679 N.W.2d 673, 677 (Iowa 2004) (quoting Iowa R. Civ. P. 1.981(3) ). "When a motion for summary judgment is made and [properly] supported ... [the opposing] party may not rest upon the mere allegations or denials in the pleadings ...." Iowa R. Civ. P. 1.981(5) ; Bitner v. Ottumwa Cmty. Sch. Dist. , 549 N.W.2d 295, 299 (Iowa 1996). Instead, the resisting party must set forth specific material facts, supported by competent evidence, establishing the existence of a genuine issue for trial. See Iowa R. Civ. P. 1.981(5) ; Bitner , 549 N.W.2d at 299. "A fact is material if it will affect the outcome of the suit, given the applicable law." Parish v. Jumpking, Inc. , 719 N.W.2d 540, 543 (Iowa 2006). An issue of fact is "genuine" if the evidence would allow "a reasonable jury [to] return a verdict for the nonmoving party." Fees v. Mut. Fire & Auto. Ins. , 490 N.W.2d 55, 57 (Iowa 1992). It is well established that speculation is not sufficient to generate a genuine issue of fact. See Nelson v. Lindaman , 867 N.W.2d 1, 7 (Iowa 2015).

II.

The issue of whether we should abandon the continuing storm doctrine in light of our recent adoption of the duty analyses in the Restatement (Third) was presented to us once before in Alcala v. Marriott International, Inc. , 880 N.W.2d 699, 711 (Iowa 2016). We declined to reach the issue in that case because it was raised for the first time on further review. See id. at 711–12. The issue is now squarely presented in this appeal, and we conclude the continuing storm doctrine is consistent with the Restatement (Third) and remains good law.

The continuing storm doctrine is of long standing in Iowa. This court first adopted the rule in 1953 in Reuter v. Iowa Trust & Savings Bank , 244 Iowa 939, 57 N.W.2d 225 (1953). In Reuter , we said,

The authorities are in substantial accord in support of the rule that a business establishment, landlord, carrier, or other inviter, in the absence of unusual circumstances, is permitted to await the end of the storm and a reasonable time thereafter to remove ice and snow from an outdoor entrance walk, platform, or steps. The general controlling principle is that changing conditions due to the pending storm render it inexpedient and impracticable to take earlier effective action, and that ordinary care does not require it.

Id. at 943, 57 N.W.2d at 225 (quoting Walker v. Mem'l Hosp. , 187 Va. 5, 45 S.E.2d 898, 902 (1948) ).

Long after our adoption of the continuing storm doctrine, "we changed the law concerning premises liability by abandoning the common law distinctions between invitees and licensees." Ludman v. Davenport Assumption High Sch. , 895 N.W.2d 902, 909 (Iowa 2017). We concluded the "common law rules governing premises liability ... to be replete with special rules and arbitrary distinctions." Id. In replacement of the old common law rules and distinctions, in Koenig v. Koenig , we adopted for land possessors a duty of reasonable care. 766 N.W.2d 635, 645 (Iowa 2009).

After Koenig , we adopted the duty analyses set forth in sections 7 and 51 of the Restatement (Third). First, in Thompson v. Kaczinski , we adopted the duty analysis set forth in section 7 of the Restatement (Third). See 774 N.W.2d 829, 835 (Iowa 2009) ("We find the drafters’ clarification of the duty analysis in the Restatement (Third) compelling, and we now, therefore, adopt it."). The Restatement (Third) provides, "An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm." Restatement (Third) § 7(a), at 77.

Subsequently, in Ludman , we explained the Restatement (Third) "adopted the position we took on premises liability" in Koenig . Ludman , 895 N.W.2d at 910. Because the Restatement (Third) regarding premises liability was consistent with Koenig , we adopted "the duty analysis for land possessors contained in section 51 of the Restatement (Third)." Id. Section 51 of the Restatement (Third) is a "specific application" of the duty to exercise reasonable care "based on the circumstance of real-property ownership." Restatement (Third) § 51 cmt. b , at 244 (Am. Law Inst. 2012). Section 51 provides, in relevant part, "a land possessor owes a duty of reasonable care to entrants on the land with regard to ... natural conditions on the land that pose risks to entrants on the land." Restatement (Third) § 51(c), at 242.

Gries makes no real doctrinal argument why the adoption of sections 7 and 51 of the Restatement (Third) counsels in favor of abandoning the continuing storm doctrine, and we see none. In adopting the Restatement (Third) duty analyses, we removed foreseeability from the "duty calculus." McCormick v. Nikkel & Assocs., Inc. , 819 N.W.2d 368, 371 (Iowa 2012). "But we did not erase the remaining law of duty; rather, we reaffirmed it." Id. Included in the body of reaffirmed law were exclusions from the ordinary duty of reasonable care. See Huck v. Wyeth, Inc. , 850 N.W.2d 353, 375 (Iowa 2014) ("We have made clear that our adoption of section 7 of the Restatement (Third) of Torts in Thompson did not supersede our precedent limiting liability ...."); McCormick , 819 N.W.2d at 371 (explaining the adoption of Restatement (Third) section 7 did not change our law modifying or eliminating the duty of reasonable care).

After the adoption of the duty analyses set forth in the Restatement (Third), this court and the court of appeals continued to find exceptions to the ordinary duty of reasonable care. In Van Fossen v. MidAmerican Energy Co. , we made clear that our previous law of duty was alive and well. 777 N.W.2d 689, 696–97 (Iowa 2009). We held employers of independent contractors do not owe a general duty of care under Restatement (Third) section 7. Id. In Feld v. Borkowski , we recognized contact sports are one of the "activities or circumstances [that] have been excepted from the reasonable-care duty." 790 N.W.2d 72, 76 (Iowa 2010). In McCormick , we reaffirmed the common law control principle on public policy grounds:

Application of the control principle makes sense here from a public policy perspective. Consider the implications of a contrary rule that a party has created a nondelegable risk of harm if the electricity is on when it leaves the premises. No matter that the accident occurred a week later, or that the facility could not operate without electricity, or that the owner was fully aware of the relevant risks, or that the equipment had been locked up. To avoid potential liability, various parties (owners, landlords, repairpersons, etc.) would need to turn off utilities that involve any risk of hazard (e.g., gas, electricity) whenever they leave a property. These unnecessary shutoffs would result in burdens and inconveniences to businesses and the general public.

819 N.W.2d at 373. In Huck , we reaffirmed our precedents limiting liability and held brand drug manufacturers owed "no duty to consumers of generic drugs." 850 N.W.2d at 380. In Rochford v. G.K. Development, Inc. , 845 N.W.2d 715, 718 (Iowa Ct. App. 2014), and Wailes v. Hy–Vee, Inc. , 861 N.W.2d 262, 265–68 (Iowa Ct. App. 2014), the court of appeals applied the continuing storm doctrine. And, most recently, we upheld the ongoing vitality of the public-duty doctrine. See Estate of McFarlin v. State , 881 N.W.2d 51, 64 (Iowa 2016) (affirming "summary judgment based on the public-duty doctrine").

The cases reaffirming exceptions to the ordinary duty to exercise reasonable care are in accord with the Restatement (Third). The Restatement (Third) recognizes there are exceptions to the duty of reasonable care. See Restatement (Third) § 7(b), at 77 ("In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of...