from the Iowa District Court for Scott County, Nancy S.
defendant appeals an adverse verdict finding it negligent in
maintaining its premises. REVERSED AND CASE REMANDED.
M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C.,
Des Moines, for appellant/cross-appellee.
J. Crowley and Edward Prill of Crowley, Bünger &
Prill, Burlington, for appellee/cross-appellant.
J. Humke and Ryan G. Koopmans (until withdrawal) of Nyemaster
Goode, P.C., Des Moines, for amicus curiae Iowa High School
E. Fenton of Law Offices of Joel E. Fenton, PLLC, Des Moines,
Elaine F. Gray of Fehseke & Gray Law Offices, Fort
Madison, and Eashaan Vajpeyi of Ball, Kirk & Holm, P.C.,
Waterloo, for amicus curiae Iowa Association for Justice.
school baseball player brought a premises liability action
against a high school for his injuries after a foul ball
struck him while he was standing in an unprotected part of
the visitor's dugout at the high school's baseball
field. The high school appeals from the judgment entered on a
jury verdict finding the high school's negligence was
responsible for injuries sustained by the high school
baseball player. On appeal, we conclude the high school owed
a duty of care to the player and substantial evidence
supports the jury verdict. However, we find the district
court abused its discretion in not allowing the high school
to present evidence of custom. We further find the district
court erred when it failed to instruct the jury on the
player's failure to maintain a proper lookout.
Accordingly, we reverse the judgment of the district court
and remand the case to the district court for a new trial.
Background Facts and Proceedings.
2011, Spencer Ludman graduated from Muscatine High School.
During that summer, he was a member of the school's
baseball team. On July 7, Ludman traveled with his team to
play a baseball game against Davenport Assumption High School
at the baseball field on their school grounds.
visiting team's dugout was located on the first-base side
of the field, thirty feet from the first-base foul line. The
visitor's dugout was thirty-five feet and five inches
long, seven feet wide, and two steps below the playing field.
There was a fence in front of the majority of the
visitor's dugout, twenty-five and a half feet in length,
extending from the ground to the ceiling of the dugout. At
each end of the visitor's dugout, there was a
five-foot-wide opening in the fence to allow players access
between the field and the dugout. There was a bench in the
visitor's dugout positioned behind the fence, and it had
two levels on which the players could sit.
top of the fifth inning, Muscatine was batting and Ludman was
in the visitor's dugout with his teammates and coaches.
There were two outs, and the current batter had two strikes.
Ludman was due to bat after the current batter and the batter
on deck. As it became unlikely he would bat that inning,
Ludman grabbed his glove and hat in preparation to retake the
field. After retrieving his glove and hat, he turned to watch
the game and found room to stand in the south opening of the
dugout, farthest from home plate.
watched the pitcher throw the ball to the batter. He heard
the bat hit the ball and was looking to see where the ball
went. He saw the ball in his peripheral vision before the
line-drive foul ball entered the south opening of the dugout
and struck him in the head. Assumption's coach saw Ludman
react and try to defend himself from the ball. However,
witnesses described the time from the moment the ball hit the
bat until it hit Ludman as a split second.
line-drive foul ball fractured Ludman's skull. An
ambulance took him to Genesis Medical Center in Davenport,
and thereafter, a helicopter transported him to the
University of Iowa Hospitals and Clinics (UIHC) for
treatment. Ludman's hospitalization at the UIHC lasted
for twelve days before he was able to go home. After his
discharge, Ludman received speech therapy, motor skills
therapy, and treatment for depression and anxiety. In March
of 2012, he began having seizures, requiring anti-seizure
medication. He also continued to deal with posttraumatic
stress symptoms, depression, and behavioral issues.
April 5, 2013, Ludman filed a premises liability action
against Assumption, alleging negligence,
a) In building, maintaining, and using a baseball facility
for high school baseball games, which failed to conform to
accepted standards of protection for players[;]
b) In failing to erect a protective fence/screen between home
plate and the dugout where players were expected to emerge
from the dugout in preparation for going to bat;
c) Knowing the visitor's dugout was extremely close to
home plate, failing to take reasonable steps to prevent foul
balls from entering the dugout at high speed and causing
denied the claims of negligence in its answer to the petition
and asserted several affirmative defenses, including the
contact-sports exception to negligence, assumption of the
risk, the plaintiff's negligence, and comparative fault
pursuant to Iowa Code chapter 668. Thereafter, Assumption
filed a motion for summary judgment alleging the
contact-sports exception applied; and thus, it owned no duty
to Ludman because getting hit by a foul ball is inherent in
the sport of baseball and he assumed the risk of getting hit
by a foul ball. Ludman resisted the motion. The court denied
the motion for summary judgment.
before trial, Assumption filed a second motion for summary
judgment, arguing that it was entitled to summary judgment
under the inherent-risk doctrine and on the basis that there
are no accepted standards for high school baseball dugouts.
Ludman also resisted this motion. The district court denied
Assumption's second motion for summary judgment because
it was untimely and was "an attempt to rehash the same
facts previously argued into a theory of law it raised in its
trial, the parties filed numerous motions in limine. Ludman
filed a motion in limine to exclude Assumption's
proffered evidence of other high school dugouts in the same
conference as Assumption as proof of due care or as a
standard of safety. The court sustained Ludman's motion
in limine with regard to other high school dugouts. The court
decided the parties were not to refer to other dugouts during
the case, but to limit themselves to precise facts before the
jury concerning Assumption's facility.
22, 2015, a jury trial commenced. Ludman presented several
witnesses, including testimony from Scott Burton, an expert
in recreational facility safety. Burton testified that, in
2000, the American Society for Testing and Materials (ASTM)
promulgated standards for the fencing of baseball and
softball dugouts. Section 6.6 of the standards refers to
protective fencing for below-grade dugouts and recommends
"the protective fencing should cover the entire opening
from ground level to top of dugout roof or overhang."
also introduced evidence that the National Federation of High
Schools (NFHS) and the Iowa High School Athletic Association
regulate Iowa high school baseball. Under this system, the
NFHS sets out rules, and the Iowa High School Athletic
Association adopts and follows these rules. The 2011 NFHS
Baseball Rules Book was applicable on July 7, 2011, and
Ludman admitted it as a trial exhibit. With regard to dugout
placement, the NFHS has a recommendation that states,
"Recommended Distance from Foul Line to Nearest
Obstruction or Dugout Should be 60'." The rules do
not mention any other recommendations regarding positioning,
fencing, or screening of dugouts.
close of Ludman's evidence, Assumption made a motion for
directed verdict, arguing Ludman did not have sufficient
evidence to satisfy the duty element of his negligence claim.
Assumption further argued the claim was barred because there
was no duty owed to Ludman based upon the doctrine of primary
assumption of the risk as set out in Dudley v. William
Penn College, 219 N.W.2d 484 (Iowa 1974), and it did not
breach any limited duty that was owed.
court denied the motion. Thereafter, Assumption presented its
case, including testimony from Muscatine High School's
former athletic director, Tim Goodwin; Assumption's
president, Andy Craig; and an architect, Greg Gowey.
Assumption also made an offer of proof with regard to the
custom or design of other high school dugouts in the same
conference as Assumption through the testimony of Gowey. At
the close of all evidence, Assumption renewed its motion for
directed verdict, and the court denied it. Ludman also moved
for directed verdict on comparative fault. The district court
granted Ludman's motion for directed verdict as to all
comparative fault except whether Ludman could have avoided
the injury by standing at a different part of the dugout.
30, 2015, the jury returned a verdict in favor of Ludman. The
jury found thirty percent fault on the part of Ludman based
upon his unreasonable failure to avoid injury. The court
entered judgment in favor of Ludman.
filed this appeal, and plaintiff filed a timely notice of
cross-appeal with respect to the comparative-fault issue. The
day before oral argument, Assumption filed a motion to strike
Ludman's final brief because it contained language not in
the proof brief and deleted certain language contained in his
proof brief. We entered an order submitting the motion with
this appeal. Before reaching the merits of the case, we will
address Assumption's motion.
Motion to Strike Ludman's Final Brief.
Iowa appellate rules provide,
In final briefs, the parties must replace references to parts
of the record with citations to the page or pages of the
appendix at which those parts appear. The final brief must
also contain a reference to the original page and line
numbers of the transcript. If references are made in the
final briefs to parts of the record not reproduced in the
appendix, the references must be to the pages of the parts of
the record involved, e.g., Answer p. 7, Motion for Judgment
p. 2, Tr. p. 231 Ll. 8-21. Intelligible abbreviations may be
used. No other changes may be made in the proof briefs as
initially filed, except that typographical errors may be
App. P. 6.904(4)(b). The purpose for this rule is so
parties can write their briefs and reply briefs based on what
is contained in the opposing party's brief. If the
appellant makes changes in the final brief from the proof
brief, the appellee should have the chance to change their
final brief. The same is true when the appellant files a
reply brief to the appellee's proof brief. This back and
forth would unduly extend the time of an appeal and cause
confusion. Of course, a party may amend its brief pursuant to
Iowa appellate rule 6.901(6).
Ludman's proof brief with his final brief, we find the
final brief contained language not in the proof brief and
eliminated language from the final brief that was in the
proof brief. However, due to the lateness of Assumption's
motion to strike, we will not strike Ludman's brief. In
the future, if we discover, either on our own or by motion of
the opposing party, that a party has changed its final brief
from its proof brief, we will not hesitate to strike the
final brief and require that party to file another final
brief in compliance with our rules.
appeal, Assumption argues (1) it was entitled to a directed
verdict on the duty element of Ludman's negligence claim;
(2) Ludman's evidence at trial was insufficient to create
a jury question, regardless of the limited duty rule, and it
was entitled to directed verdict in its favor; (3) the
district court erred in barring it from presenting evidence
concerning the custom and standard practice in the design and
construction of dugouts at schools throughout the Mississippi
Athletic Conference, in which both Assumption and Muscatine
High School were members; and (4) the district court erred in
failing to give its requested jury instruction concerning
of our decision, we need not reach Ludman's cross-appeal.
Standard of Review.
review of a district court's ruling on a motion for
directed verdict is for correction of errors at law.
Pavone v. Kirke, 801 N.W.2d 477, 486-87 (Iowa 2011).
"A directed verdict is required 'only if there was
no substantial evidence to support the elements of the
plaintiff's claim.' " Id. (quoting
DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa
2009)). We "view the evidence in the light most
favorable to the nonmoving party and take into consideration
all reasonable inferences that could be fairly made by the
jury." Id. (quoting Easton v. Howard,
751 N.W.2d 1, 5 (Iowa 2008)).
Assumption claims the evidence supported a jury instruction
on proper lookout. Because the failure to give the
instruction does not have a discretionary function, we review
the court's refusal to give a lookout instruction for
correction of errors at law. Alcala v. Marriott
Int'l, Inc., 880 N.W.2d 699, 707 (Iowa 2016).
our review for failure to submit custom evidence is for an
abuse of discretion. McClure v. Walgreen Co., 613
N.W.2d 225, 234 (Iowa 2000). A court abuses its discretion
when its ruling is "clearly untenable or to an extent
clearly unreasonable." State v. Wilson, 878
N.W.2d 203, 210-11 (Iowa 2016). An erroneous application of
the law by the district court is clearly untenable.
Whether Assumption Was Entitled to a Directed Verdict on the
Duty Element of Ludman's Negligence Claim.
intermingled throughout its argument, Assumption appears to
make two arguments as to why it did not owe a duty to Ludman,
entitling it to a directed verdict. Assumption's first
contention is that the contact-sports exception to liability
discussed in Feld v. Borkowski, 790 N.W.2d 72, 77
(Iowa 2010), precludes a finding it owed a duty to Ludman.
Assumption next contends the doctrine of primary assumption
of the risk precludes a finding it owed a duty to Ludman
because the risk of injury was open and obvious to him. In
its argument, Assumption relies on our decisions in
Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa
1989), and Dudley, 219 N.W.2d 484.
General Tort Principles Governing Assumption's Duty to
Ludman. Ludman pled and tried his action as a
premises liability claim. In 2009, we changed the law
concerning premises liability by abandoning the common law
distinctions between invitees and licensees. Koenig v.
Koenig, 766 N.W.2d 635, 645 (Iowa 2009). We found the
common law rules governing premises liability before
Koenig to be replete with special rules and
arbitrary distinctions. Id. at 644. In
Koenig, we adopted a general negligence standard for
possessors of land to invitees and licensees. Id. at
645-46. We adopted the following multifactor approach:
We impose upon owners and occupiers only the duty to exercise
reasonable care in the maintenance of their premises for the
protection of lawful visitors. Among the factors to be
considered in evaluating whether a landowner or occupier has
exercised reasonable care for the protection of lawful
visitors will be: (1) the foreseeability or possibility of
harm; (2) the purpose for which the entrant entered the
premises; (3) the time, manner, and circumstances under which
the entrant entered the premises; (4) the use to which the
premises are put or are expected to be put; (5) the
reasonableness of the inspection, repair, or warning; (6) the
opportunity and ease of repair or correction or giving of the
warning; and (7) the burden on the land occupier and/or
community in terms of inconvenience or cost in providing
Id. (quoting Sheets v. Ritt, Ritt & Ritt,
Inc., 581 N.W.2d 602, 606 (Iowa 1998)).
our decision in Koenig, we have not had the
opportunity to explore the contours of a premises liability
claim. However, after Koenig, the Restatement of
Torts (Third) adopted the position we took on premises
liability. Restatement (Third) of Torts: Liab. for Physical
& Emotional Harm § 51, at 242 (Am. Law Inst. 2012).
The Restatement (Third) of Torts: Liability for Physical and
Emotional Harm formulates a landowner's duty as follows:
Subject to § 52, a land possessor owes a duty of
reasonable care to entrants on the land with regard to:
(a) conduct by the land possessor that creates risks to
entrants on the land;
(b) artificial conditions on the land that pose risks to
entrants on the land;
(c)natural conditions on the land that pose risks to entrants
on the land; and
(d)other risks to entrants on the land when any of the
affirmative duties provided in Chapter 7 is applicable.
i to section 51 sets forth the duty of reasonable
care incorporating the same factors we adopted in
Koenig. Id. § 51 cmt. i, at
248-50. Accordingly, we adopt the duty analysis for land
possessors contained in section 51 of the Restatement (Third)
of Torts: Liability for Physical and Emotional Harm. We now
must determine if the contact-sports exception to liability
or primary assumption of the risk or limited- duty rule due
to an open and obvious condition relieves Assumption of the
duty contained in section 51 of the Restatement (Third).
Contact-Sports Exception. Section 51 has not
modified the principles of a no-duty rule contained in the
remainder of the Restatement (Third) of Torts: Liability for