review from the Iowa Court of Appeals.
from the Iowa District Court for Monroe County, Randy S.
City of Albia seeks further review of a court of appeals
decision that concluded it was not immune from a
homeowner's nuisance suit and the statute of limitations
did not bar recovery for claims related to flooding that
occurred within two years of filing suit.
Zachary C. Priebe and Jeffrey S. Carter of Jeff Carter Law
Offices, P.C., Des Moines, for appellant.
E. Crane and Michael C. Richards of Davis, Brown, Koehn,
Shors & Roberts, P.C., Des Moines, for appellee.
appeal, we must decide if a city is statutorily immune from a
homeowner's nuisance claim stemming from reoccurring
flooding in the basement of her home due to the discharge of
rainwater from a storm sewer located near the home. The
district court granted summary judgment for the City, and the
court of appeals reversed the decision of the district court.
On further review, we vacate the decision of the court of
appeals and affirm the decision of the district court. The
statute granting immunity to municipalities for tort claims
based on claims of negligent design and construction of
public improvements and facilities, or failure to upgrade
public improvements and facilities, does not bar all claims
for nuisance. It does, however, bar those nuisance claims
based on conditions created by public improvements and
facilities designed and constructed pursuant to generally
recognized engineering or safety standards in existence at
the time of construction and without evidence that the
harmful condition creating the nuisance was inherent in the
operation of the improvement or facility itself or evidence
of negligent conduct other than the designated conduct
immunized under statute.
Factual Background and Proceedings.
1972, the City of Albia constructed a storm sewer system in
an area of town as part of a comprehensive development plan.
It installed a twelve-inch storm sewer pipe along 4th Avenue
E, with intakes on the north and south curbs. The storm sewer
intercepted the natural overland flow of water in the area
and day-lighted on the north side of 4th Avenue E. The City
sized the sewer system to accommodate a two-year recurrence
interval storm. It designed and constructed the storm sewer
system in accordance with the generally recognized
engineering and safety standards of the early 1970s.
1983, a house was constructed on the parcel that contained
the day-lighted storm sewer pipe. The house was positioned on
the property so the exposed pipe was located in the front
yard and pointed towards the home. In 2008, Wilma Kellogg
purchased the home. At the time of the purchase, she was
informed the basement had "flooded one time up the
drain, " but a sump pump had been installed to address
the problem. Prior to closing, Kellogg paid for half of the
cost of removing moldy drywall from the basement of the home.
2009 and 2015, the basement flooded after rainfall on eight
or nine occasions. During the flooding, Kellogg experienced
water across the furnished portions of her basement, as well
as near the hot water heater. Often, water leaked down the
wall of the basement's crawl space. Mold began to appear
on the drywall, and photographs of the basement show multiple
mold growths near a wall electrical outlet. Photographs also
demonstrated a ponding effect on Kellogg's lawn during
2010, frustrated by the repeated flooding, Kellogg contacted
the City to request a remedy. Although the mayor and members
of the city council met with Kellogg and assured her they
would look into possible solutions, the City never followed
up with Kellogg about the flooding. Kellogg subsequently
contacted the City about the flooding in 2012, 2013, and
2014, but never received any assistance. While waiting for
the City to take action, Kellogg's basement continued to
flood following periods of heavy rainfall.
February 25, 2015, Kellogg filed an action against the City
in district court. She alleged the flooding constituted a
nuisance and that the City was negligent in installing the
storm sewer pipe. The City filed a motion for summary
judgment. It asserted Kellogg's claims were barred by the
state-of-the-art immunity given to municipalities under Iowa
Code section 670.4(1)(h) (2015) and the applicable
two-year statute of limitations under section 670.5.
district court granted the motion. It found the facts were
undisputed that the storm sewer was built in accordance with
the accepted and generally recognized engineering standards
and criteria at the time of construction. Therefore, the
state-of-the-art defense granted the City immunity from
Kellogg's nuisance and negligence claims. Additionally,
it concluded the statute of limitations also barred the
lawsuit, finding that the period of limitations did not begin
anew after each incident of flooding but began to run after
the first incident of flooding in 2009.
appealed. She claimed the immunity statute did not apply to
her claim for nuisance, but only applied to claims based on
negligence. She also claimed the statute-of-limitations
period ran anew from each incident of flooding. Kellogg did
not appeal from the dismissal of her claim based on
negligence and did not contest the finding of undisputed
facts made by the district court in ruling on the motion for
transferred the case to the court of appeals. The court of
appeals reversed the decision of the district court,
concluding Kellogg established a genuine issue of material
fact that a nuisance was created or was being maintained by
the City's operation of the storm sewer, without regard
to design or specification defects. The City applied for, and
we granted, further review.
Standard of Review.
review a district court's ruling on a motion for summary
judgment "for correction of errors at law."
Sanon v. City of Pella, 865 N.W.2d 506, 510 (Iowa
2015) (quoting Ne. Cmty. Sch. Dist. v. Easton Valley
Cmty. Sch. Dist., 857 ...