Iowa Power and Light Co. v. Board of Water Works Trustees of City of Des Moines

Decision Date31 May 1979
Docket NumberNo. 2-62048,2-62048
Citation281 N.W.2d 827
PartiesIOWA POWER AND LIGHT COMPANY, Appellee, v. The BOARD OF WATER WORKS TRUSTEES OF the CITY OF DES MOINES, Iowa, Appellant.
CourtIowa Court of Appeals

John R. Mackaman and F. Richard Lyford, of Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellant.

William L. Dawe, of Bradshaw, Fowler, Proctor & Fairgrave, and Barry N. Minear, of Swift Minear & Hansen, Des Moines, for appellee.

Heard by OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.

SNELL, Judge.

Defendant Board of Water Works appeals from judgment of the trial court awarding damages in the amount of $55,175.65 to plaintiff Iowa Power and Light. Defendant raises several points of error. We affirm.

This is an action at law. Our review is not de novo but is limited to errors assigned. Iowa R.App.P. 4; Keith v. Community School Dist. of Wilton in the Counties of Cedar and Muscatine, 262 N.W.2d 249, 255 (Iowa 1978). The findings of fact by the trial court have the effect of a special verdict and are equivalent to a jury verdict. Iowa R.App.P. 4; Keith, 262 N.W.2d at 255. Findings supported by substantial evidence and justified as a matter of law are binding and will not be disturbed on appeal. Keith, 262 N.W.2d at 255. However a reviewing court may inquire into whether a conclusion of law is correct or whether the trial court erred in ruling upon a question of law which materially affects the decision. Id.

I. Defendant initially maintains that the notice sent by plaintiff was inadequate under then Iowa R.Civ.P. 50 and that the trial court, therefore, did not have jurisdiction over this action. The trial court ruled that plaintiff's first filed notice was defective but that its second filed notice was valid. We agree and find that plaintiff's second notice substantially complied with the mandates of rule 50. Defendant was adequately identified, See Thune v. Hokah Cheese Co., 260 Iowa 347, 353, 149 N.W.2d 176, 179 (1967), and was sufficiently apprised of the nature of the action against it despite irregularities in form. West v. Hawker, 237 N.W.2d 802, 805-06 (Iowa 1976).

II. Defendant next asserts that the trial court erred in denying its motion for judgment on the pleadings. Defendant claims that plaintiff, before filing its resistance to jury demand, had failed to timely reply to defendant's affirmative defenses and, in its resistance, had admitted that the pleadings were closed. When a party fails to reply to the facts alleged in an affirmative defense, then the factual allegations in defendant's answer are taken as true. Lloyd E. Clarke, Inc. v. City of Bettendorf, 261 Iowa 1217, 1219, 158 N.W.2d 125, 126-27 (1968). The granting of a motion for judgment on the pleadings may be appropriate in such a situation. 1 A. Vestal & P. Willson, Iowa Practice § 19.01 at 365 (1974).

In this case, though, plaintiff did file a reply. We do not agree with the defendant that the initial failure of plaintiff to file a reply and plaintiff's language in its resistance to jury demand jointly constituted an admission, represented a waiver, or called for the employment of the doctrine of judicial estoppel. Rather we find that plaintiff's petition, defendant's answer and plaintiff's reply raised factual issues which precluded a judgment on the pleadings. Roth v. Bluffs City Motors, Inc., 186 N.W.2d 634, 636 (Iowa 1971). The trial court properly denied defendant's motion.

III. Defendant also maintains that this action by the plaintiff is barred by plaintiff's failure to comply with the notice requirements of § 613A.5, The Code 1973. This contention is without merit. Written notice as required by § 613A.5 was sent directly to defendant Water Works by Iowa Power, the party contemplating legal action. Contrast case at bar With Shearer v. Perry Community School Dist., 236 N.W.2d 688, 693-94 (Iowa 1975) (oral notice does not satisfy § 613A.5's requirement of written notice) And Rush v. Sioux City, 240 N.W.2d 431, 437 (Iowa 1976) (a police officer's written report does not constitute notice under § 613A.5 which requires claimants to inform municipalities of possible suits.) The primary purpose of § 613A.5 is to provide a method for prompt communication of the time, place and circumstances of an injury so that a municipality can investigate while the facts are fresh and settle early those claims it deems to be meritorious. Lunday v. Vogelmann, 213 N.W.2d 904, 907-08 (Iowa 1973).

Here the notice sent to defendant Water Works by plaintiff Iowa Power was well-calculated to serve the basic purposes of the statute. Although when notice was sent counsel for Iowa Power may have been unaware of the fact that Water Works and the City of Des Moines are separate entities, Water Works knew when it received notice that it, and not the City, would be the proper party to defend in this action. Compare case at bar With Cook v. City of Council Bluffs, 264 N.W.2d 784, 791 (Iowa 1978). The notice requirement of § 613A.5 was substantially complied with.

IV. Defendant further asserts that the trial court erred in finding it liable under the doctrine of liability without fault, or strict liability, announced in Lubin v. City of Iowa City, 257 Iowa 383, 389-93, 131 N.W.2d 765, 769-771 (1965). Defendant contends that Lubin is inapplicable to the present case and that the appropriate theory to be applied is negligence. We disagree.

The Iowa Supreme Court premised its Lubin decision on a theory of liability without fault primarily because of the nature of the activity engaged in by the city. The court states: "It is neither just nor reasonable that the city engaged in a proprietary activity can deliberately and intentionally plan to leave a watermain underground beyond inspection and maintenance until a break occurs and escape liability." Lubin, 257 Iowa at 390-91, 131 N.W.2d at 770. While the court further bolstered its opinion by stating that a major enterprise whose activity causes damage to another through no fault of either is in a better position to bear the burden of the loss than is the individual sufferer, Lubin, 257 Iowa at 391-92, 131 N.W.2d at 770-71, Lubin cannot be read as inferentially holding that when two parties are of near equal ability to bear a loss, recovery should be had on a negligence theory only. In this case, testimony shows that Water Works protects against broken water mains primarily by using good construction techniques and materials; mains normally are not inspected. Water Works, the party best able to prevent against damaged water mains, accepted the advantages of lower maintenance costs. Lubin, 257 Iowa at 392, 131 N.W.2d at 771. Consequently, as in Lubin, Water Works should bear the risk of loss for damage caused by those mains which leak or break, although through no fault of its own. Water Works is an enterprise engaged in an activity which will most likely result in the invasion of the property of another and, as between even these two parties which are in relatively equal economic positions, Water Works should be liable for losses caused by this activity. Lubin, 257 Iowa at 393, 131 N.W.2d at 771.

Because the nature of the activity engaged in by the enterprise is the crucial element in determining whether the doctrine of strict liability should be applied, the fact that Iowa Power was reimbursed for most of its losses by its insurance company and the fact that taxpayers who pay for the services of Water Works are the same customers who pay for the services of Iowa Power are both irrelevant to this particular issue. The trial court's application of the doctrine of strict liability was proper.

V. Defendant next claims that plaintiff was contributorily negligent in storing its records in non-waterproof containers in the basement of a building located in a low river area, that plaintiff's negligence was the proximate cause of the loss suffered by it, and that recovery by Iowa Power is consequently barred. Again, we disagree.

Generally questions of contributory negligence and proximate cause are for the trier of fact to determine, Iowa R.App.P. 14(f)(10); Grall v. Meyer, 173 N.W.2d 61, 63 (Iowa 1969). A reviewing court will overturn a trial court's determination of lack of negligence and proximate cause only if these can be established as a matter of law. Iowa R.App.P. 14(f)(10); Stanley v. State, 197 N.W.2d 599, 604 (Iowa 1972); Grall, 173 N.W.2d at 63.

We cannot say that as a matter of law Iowa Power had a duty to anticipate damage resulting from the activities of another and to select its storage facilities accordingly. See Rainier Heat & Power Co. v. City of Seattle, 113 Wash. 95, 104, 193 P. 233, 236 (1920). Nor can we say that Iowa Power's lack of compliance with a Federal Power Commission regulation on protection of records against floods constituted negligence as a matter of law. While it is true that an individual's violation of certain statutes and administrative regulations constitutes negligence or negligence per se, E. g. Koll v. Manatt's Transportation Co., 253 N.W.2d 265, 270 (Iowa 1977); Kisling v. Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554 (1932), it does not follow that the failure to comply with the mandates of any statute or regulation is negligence. See Lewis v. State, 256 N.W.2d 181, 188 (Iowa 1977). In this case, the FPC regulation is designed to protect against damage to records resulting from natural flooding, not damage caused by leaking or broken water mains. Id. Iowa Power's failure to comply with this particular regulation did not constitute negligence as a matter of law.

Furthermore, we cannot say that, as a matter of law, plaintiff's acts or failure to act were the proximate cause of the injury suffered. Oakleaf Country Club Inc. v. Wilson, 257 N.W.2d 739, 746 (Iowa 1976). It is not blatantly apparent that any act or failure to act by plaintiff was a substantial factor in bringing about its harm. Id. Compare case at bar With Werner v....

To continue reading

Request your trial
16 cases
  • Chadima v. National Fidelity Life Ins. Co.
    • United States
    • U.S. District Court — Southern District of Iowa
    • March 25, 1994
    ...1968). The defense of mitigation, however, must be both pled and proven by the asserting party. Iowa Power & Light Co. v. Board of Water Works Trustees, 281 N.W.2d 827, 833 (Iowa Ct.App.1979). The defense of failure to mitigate damages precludes an award of those damages which plaintiff cou......
  • Campins v. Capels
    • United States
    • Indiana Appellate Court
    • March 28, 1984
    ...parties is to receive a wide range of elements for consideration in the actual value. See, e.g., Iowa Power & Light Co. v. Board of Water Works Trustees, (1979) Iowa App., 281 N.W.2d 827; Eablonski v. Close, (1924) 70 Mont. 292, 225 P. 129; Alderete v. Cabello, (1925) Tex.Civ.App., 278 S.W.......
  • John T. Arnold Associates, Inc. v. City of Wichita
    • United States
    • Kansas Court of Appeals
    • August 22, 1980
    ...in the context of a broken water main. Furthermore, outside of Lubin v. City of Iowa City (Accord, Iowa Power & Light Co. v. Bd. of Water Works, Etc., 281 N.W.2d 827 (Iowa App.1979)), most courts have rejected the extension of the Rylands v. Fletcher doctrine to water main cases. Even Quigl......
  • Maricle v. Spiegel
    • United States
    • Nebraska Supreme Court
    • January 7, 1983
    ...1284 (D.D.C.1980); Toushin v. Gonsky, 77 Ill.App.3d 508, 32 Ill.Dec. 743, 395 N.E.2d 1124 (1979); Iowa Power & Light Co. v. Bd. of Water Works Etc., 281 N.W.2d 827 (Iowa App.1979); Peeples v. Sargent, 77 Wis.2d 612, 253 N.W.2d 459 (1977); Sprecher v. Weston's Bar, Inc., 78 Wis.2d 26, 253 N.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT