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Marvin Sobotka and Joseph Waigand v. Ramez A. Salamah

January 9, 2013

MARVIN SOBOTKA AND JOSEPH WAIGAND, PLAINTIFFS-APPELLEES/CROSS-APPELLANTS,
v.
RAMEZ A. SALAMAH, LESLIE J. SALAMAH, AND GARY KLEJCH, DEFENDANTS-APPELLANTS/CROSS-APPELLEES.



Appeal from the Iowa District Court for Ringgold County, Sherman W. Phipps, Judge.

The opinion of the court was delivered by: Vaitheswaran, P.J.

Landowners challenge the sufficiency of the evidence supporting the district court's finding of liability for the obstruction of the flow of water onto the plaintiffs' land, as well as the court's award of punitive damages and injunctive relief. In a cross-appeal, the prevailing parties contend they were entitled to an additional damage award. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.

Landowners and their farm tenant were found to have obstructed the natural flow of water from an adjacent farm. The landowners challenge the sufficiency of the evidence supporting the district court's finding of liability as well as the court's award of punitive damages and injunctive relief. In a cross-appeal, the prevailing parties contend they were entitled to an additional damage award.

I. Background Facts and Proceedings

Plaintiff Marvin Sobotka was a long-time owner of farmland in Ringgold County. He rented his land to plaintiff Joe Waigand. Defendants Ramez and Leslie Salamah owned farmland to the south of Sobotka's property. They rented their land to defendant Gary Klejch.*fn1

A fence divided Sobotka's property from the Salamahs' land to the south. The Grand River bordered both properties to the west. Sobotka drained water from his property through small ditches known as "dead furrows" that bisected the fence in several areas. The water flowed into what he contended was an east-west waterway that merged with the Grand River on the Salamah's side of the fence.

In the spring following the 2008 floods, Sobotka cleaned and expanded the dead furrows. The Salamahs responded by plowing dirt against the furrows.

Sobotka sued the Salamahs, alleging they "blocked and impeded the established drainage from plaintiffs' land, causing water to remain standing on plaintiffs' land." He raised negligence and nuisance causes of action and prayed for compensatory and punitive damages, as well as double damages under a statutory provision governing levee or drainage improvements. See Iowa Code § 468.148 (2009). The Salamahs counterclaimed for trespass.

Following a bench trial, the district court concluded the Salamahs "had a duty to not interfere with the established drainage rights of the plaintiffs," they breached that duty by destroying a waterway and blocking drainage openings, they created a "private nuisance" by obstructing Sobotka's free use of his farm, and they were liable for compensatory damages of $13,260.46 and punitive damages of $15,000 but not statutory double-damages as requested by Sobotka. The court ordered the Salamahs to abate the nuisance and enjoined them from creating any obstacle that would impede the natural flow of water from Sobotka's farm onto their property. Finally, the court dismissed the Salamahs' trespass counterclaim. The Salamahs appealed and Sobotka cross-appealed from the denial of statutory damages.

II. Salamahs' Appeal

A. The Merits

As a preliminary matter, the Salamahs contend the district court applied an incorrect standard on the negligence count. They claim the duty/breach standard the court invoked has been superseded by what they characterize as a "scope of liability" standard articulated in Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009). In their view, the district court erred in failing to apply this standard. We disagree.

In Thompson, the Iowa Supreme Court focused on the duty element of a negligence claim in a personal injury action. The court held that foreseeability of risk was no longer a consideration in determining whether a duty was owed to another. Thompson, 774 N.W.2d at 835--36; see also Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 98 (Iowa 2012) (characterizing Thompson as generally rejecting "the use of foreseeability when determining, as a matter of law, that one party did not owe a duty to another").

Assuming without deciding that Thompson is applicable here,*fn2 there is no indication that the district court considered foreseeability of risk in concluding the Salamahs owed Sobotka a duty to refrain from interfering with ...

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