               IN THE SUPREME COURT OF IOWA
                              No. 15–2143

                           Filed March 9, 2018


WILMA JEAN KELLOGG,

      Appellant,

vs.

CITY OF ALBIA, IOWA,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Monroe County, Randy S.

DeGeest, Judge.



      The 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.    DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

AFFIRMED.



      Zachary C. Priebe and Jeffrey S. Carter of Jeff Carter Law Offices,

P.C., Des Moines, for appellant.



      Sarah E. Crane and Michael C. Richards of Davis, Brown, Koehn,

Shors & Roberts, P.C., Des Moines, for appellee.
                                    2

CADY, Chief Justice.

      In this 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.

      I. Factual Background and Proceedings.

      In 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.
                                    3

      In 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.

      Between 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

heavy rainfall.

      In 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.

      On 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
                                    4

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.

      The 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.

      Kellogg 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 summary

judgment.

      We 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.

      II. Standard of Review.

      We review a district court’s ruling on a motion for summary

judgment “for correction of errors at law.”   Sanon v. City of Pella, 865
                                        5

N.W.2d 506, 510 (Iowa 2015) (quoting Ne. Cmty. Sch. Dist. v. Easton

Valley Cmty. Sch. Dist., 857 N.W.2d 488, 491 (Iowa 2014)). Summary

judgment is proper when

          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 a judgment as a matter of
          law.

Thomas v. Gavin, 838 N.W.2d 518, 521 (Iowa 2013) (quoting Iowa R. Civ.

P. 1.981(3)).

          III. Statutory Immunity.

          We first address whether the City is immune from the nuisance

claim brought by Kellogg.         On appeal, Kellogg does not contest the

finding by the district court that the storm sewer was built in accordance

with the standards at the time, but claims the state-of-the-art immunity

does not apply to her claim for nuisance.

          A. Municipal Tort Immunity Under Section 670.4(1)(h).

          1. The state-of-the-art defense. In 1967, the legislature abrogated

common law governmental tort immunity when it passed the Iowa

Municipal Tort Claims Act.         1967 Iowa Acts ch. 405, § 2 (originally

codified at Iowa Code § 613A.2 (1971), now § 670.2).          Under the Act,

“every municipality is subject to liability for its torts and those of its

officers, employees, and agents.” Id. The Act defined torts to mean all

civil wrongs, including actions based on negligence and nuisance. Id. at

§ 1(3).      However, the Act retained sovereign immunity for several

enumerated tort claims, and additional enumerated claims were

subsequently added. See Iowa Code § 670.4(1)(a)–(o) (2015).

      In 1983, the legislature immunized municipalities from claims

“based upon or arising out of a claim of negligent design or specification,
                                     6

negligent adoption of design or specification, or negligent construction or

reconstruction of a . . . public facility,” so long as the facility “was

constructed or reconstructed in accordance with a generally recognized

engineering or safety standard, criteria, or design theory in existence at

the time of the construction or reconstruction.” 1983 Iowa Acts ch. 198,

§ 25 (codified at Iowa Code § 613A.4(8) (1985), now § 670.4(1)(h)).

Further, the legislature excepted municipalities from tort claims for

“failure to upgrade, improve, or alter any aspect of an existing public

improvement or other public facility to new, changed, or altered design

standards.” Id. Thus, cities are immune under the statute from claims

for the negligent design and construction of facilities built pursuant to

the accepted standards in existence at the time and for claims based on

the failure to upgrade facilities to new design standards.

      The purpose of section 670.4(1)(h) immunity—often referred to as

the state-of-the-art defense—is twofold.   First, it “alleviate[s] municipal

responsibility for design or specification defects, as judged by present

state of the art standards, when the original designs or specifications

were proper at the time the public facility was constructed.” Hansen v.

City of Audubon, 378 N.W.2d 903, 906 (Iowa 1985). Second, the statute

instructs   courts   to   measure    a   municipality’s      duty   to   avoid

nonconstitutional torts “by the ‘generally recognized engineering or safety

standard, criteria, or design theory’ in existence at the time of the

construction or reconstruction.” Connolly v. Dallas County, 465 N.W.2d

875, 877 (Iowa 1991).

      Since the enactment of the statute, we have confined the state-of-

the-art immunity to its limiting language and purpose. In Hansen, we

clarified a municipality may still be held liable for its failure to repair,

operate, or maintain a once-competently designed or constructed public
                                    7

facility. 378 N.W.2d at 906–07. When a claim rests upon negligence in

the maintenance of a utility, rather than negligence in the failure to

upgrade a utility, “[n]either the literal terms nor the purposes” of the

statutory immunity are applicable. Id. at 907.

      2. Application of statutory immunity to private nuisance claims.

Kellogg seeks to exclude nuisance claims from the state-of-the-art

immunity statute.     She argues the statute specifically limits the

immunity defense to claims of negligence, which are distinct from claims

of nuisance. The City argues the state-of-the-art immunity for claims of

negligence cannot be sidestepped by designating the claim as one for

nuisance.   It asserts a nuisance claim arising out of flooding from a

properly functioning storm sewer designed and constructed pursuant to

the standards at the time of construction is still a claim “based upon or

arising out of” a claim of negligent design, construction, or a failure to

upgrade.

      The Iowa Municipal Tort Claims Act expressly defines a tort to

include a nuisance action.    Iowa Code § 670.1(4) (“ ‘Tort’ means every

civil wrong which results in wrongful death or injury to person or injury

to property or injury to personal or property rights and includes but is

not restricted to actions based upon negligence; error or omission;

nuisance . . . .”). Moreover, a plain reading of the statute supports the

conclusion that the state-of-the-art immunity defense extends to

nuisance actions “based upon or arising out of” one of the enumerated

negligence claims. Id. § 670.4(1)(h). The statute does not just immunize

claims of negligent design, construction, or failure to upgrade.   It also

immunizes all claims based upon or arising out of claims for the failure

to bring the facility up to today’s standards. Thus, the question turns to

whether the nuisance action brought by Kellogg in this case is a claim
                                    8

that is based on or arising out of a claim of negligent design,

construction, or failure to upgrade. The City’s position does not end our

analysis, but establishes the pathway to the resolution of the question

presented.

      We have discussed the meaning of the “based upon or arising out

of” language of the statute in prior cases. In Cubit v. Mahaska County,

we examined the scope of municipal emergency-response immunity—a

parallel provision to state-of-the-art immunity. 677 N.W.2d 777, 782–84

(Iowa 2004).   Akin to state-of the-art immunity, emergency-response

immunity limits tort claims “based upon or arising out of” actions taken

pursuant to an emergency response.       Id. at 782.   In that context, we

interpreted “arising out of” to require “some causal connection between

the ‘claim’ and ‘an act or omission in connection with an emergency

response.’ ” Id. at 784 (quoting Iowa Code § 670.4[k]). We held a claim of

negligent supervision falls outside the statutory immunity under section

670.4(1)(k) only if it can “be proved without reference to or reliance upon

the dispatchers’ acts or omissions during the emergency.” Id. We found

one element of a claim of negligent supervision by an employer required a

showing of negligent conduct of an employee.       Id. at 785.   Since the

employee in the case was an emergency responder, the city was immune

because the claim was necessarily based on or arose out of the actions of

the emergency responder. Id.

      Kellogg seizes on the distinction between nuisance claims based on

negligence and those that are independent of negligence. She argues her

nuisance claim is not grounded in any wrongdoing on the part of the City

and does not otherwise rely on conduct within the immunity statute.

Rather, Kellogg focuses only on the intermittent flooding that results

from the storm sewer and contends it interferes with her interest in the
                                       9

private use and enjoyment of her property. She argues this claim of pure

nuisance does not rely on any negligence connected to the flooding and is

therefore not within the claims protected by statutory immunity. Based

on Cubit, she contends her pure nuisance claim can necessarily be

proved without reference to or reliance on any negligent design,

construction, or failure to upgrade.

      Kellogg’s position is built upon the unique position occupied by

nuisance law within our tort system.       In the past, we have observed

“[t]here is perhaps no more impenetrable jungle in the entire law than

that which surrounds the word ‘nuisance.’ ” Guzman v. Des Moines Hotel

Partners, Ltd. P’ship, 489 N.W.2d 7, 10 (Iowa 1992) (alteration in original)

(quoting W. Page Keeton et al., Prosser and Keaton on the Law of Torts

§ 86, at 616–17 (5th ed. 1984)).

      Much of the vagueness and uncertainty surrounding the
      concept of nuisance is due to the fact that the word itself
      does not identify the cause of the problem but simply means
      the hurt, annoyance, or inconvenience that results from it.

Id.

      Private nuisance is “an actionable interference with a person’s

interest in the private use and enjoyment of the person’s land.” Freeman
v. Grain Processing Corp., 895 N.W.2d 105, 120 (Iowa 2017) (quoting

Perkins v. Madison Cty. Livestock & Fair Ass’n, 613 N.W.2d 264, 271

(Iowa 2000)). The legislature defines nuisance as “[w]hatever is injurious

to health, indecent, or unreasonably offensive to the senses, or an

obstruction to the free use of property, so as essentially to interfere

unreasonably with the comfortable enjoyment of life or property.” Iowa

Code § 657.1(1). The nuisance statute “does not supersede common law

nuisance,” but rather expands upon it. Freeman, 895 N.W.2d at 120.
                                       10

Examples of private nuisances include “vibrations, blasting, destruction

of crops, flooding, [and] pollution.” Guzman, 489 N.W.2d at 10.

      We have also previously discussed the distinction between

negligence and nuisance:

      Negligence is a type of liability-forming conduct, for example,
      a failure to act reasonably to prevent harm. In contrast,
      nuisance is a liability-producing condition. Negligence may
      or may not accompany a nuisance; negligence, however, is
      not an essential element of nuisance. If the condition
      constituting the nuisance exists, the person responsible for
      it is liable for resulting damages to others even though the
      person acted reasonably to prevent or minimize the
      deleterious effect of the nuisance.

Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998)

(citations omitted).    In other words, “nuisance simply refers to the

results; negligence might be the cause.” Martins v. Interstate Power Co.,

652 N.W.2d 657, 661 (Iowa 2002).            However, pure nuisance claims—

nuisance   claims      without   any    accompanying       negligence—require

demonstrating a “degree of danger (likely to result in damage) inherent in

the thing [responsible for the harm], beyond that arising from mere

failure to exercise ordinary care in its use.”         Id. at 665 (Cady, J.,

dissenting) (quoting Guzman, 489 N.W.2d at 11).

      We adopted the inherent-danger standard from a Missouri

Supreme Court case, Pearson v. Kansas City, 55 S.W.2d 485, 489 (Mo.

1932). Hall v. Town of Keota, 248 Iowa 131, 142, 79 N.W.2d 784, 790

(1956). The Pearson court instructed that a “ ‘nuisance’ does not rest on

the degree of care used, but on the degree of danger existing with the

best of care.”   55 S.W.2d at 489.          Further, in order to be liable for

creating a nuisance, a municipality

      must have violated the absolute duty of refraining from the
      participating acts, not merely the relative duty of exercising
      reasonable care, foresight, and prudence in their
                                     11
       performance. The wrongfulness must have been in the acts
       themselves, rather than in the failure to use the requisite
       degree of care in doing them, and therein lies the distinction,
       under the facts of this case, between “nuisance” and
       “negligence.” The one is a violation of an absolute duty; the
       other a failure to use the degree of care required in the
       particular circumstances—a violation of a relative duty.

Id. at 490 (quoting Herman v. City of Buffalo, 108 N.E. 451, 453 (N.Y.

1915)). The plaintiff in Pearson alleged that three conditions amounted

to a nuisance that caused her injury: a worn elevator main shaft, a

broken latch on the shaft door, and a failure to turn on lights in a

hallway. Id. The court concluded the plaintiff’s injuries were caused by

a lack of due care under the circumstances, “not by an inherently

dangerous condition which would cause damage regardless of the

exercise of a reasonable degree of care.” Id. at 491.

       The distinction between nuisance and negligence claims is often

important because common law nuisance generally exists as a separate

area of recovery from negligence only when the danger at issue is

inherent in the activity and not the results of the negligent conduct. See

Guzman, 489 N.W.2d at 11.           Thus, we have, on prior occasions,

considered whether a claim for nuisance is actually one for negligence.

       In Martins, the operators of a dairy farm sued an electric utility for

injuries to their dairy cows due to the presence of stray voltage from

electrical lines maintained by the utility. 652 N.W.2d at 658–59 (majority

opinion). In addressing the claim based on nuisance, we explained “[t]he

key for such a stand-alone claim of nuisance is that the degree of danger

likely to result in damage must be inherent in the thing itself.” Id. at

664.    We surveyed the science behind stray voltage and how other

jurisdictions have approached the issue. Id. at 661–64. We concluded

the farmers satisfied the inherent-danger standard and could proceed on

a pure nuisance claim against the utility because “[s]ome stray voltage
                                    12

may always be present as an inherent part of supplying electricity.” Id. at

662 (alteration in original) (quoting Peter G. Yelkovac, Homogenizing the

Law of Stray Voltage: An Electrifying Attempt to Corral the Controversy, 28

Val. U.L. Rev. 1111, 1112–13 (1994)).

      In Hall, a poorly maintained traffic pole fell on a young child, who

died from his injuries. 248 Iowa at 134, 79 N.W.2d at 785. The child’s

father and the estate administrator sued the city, alleging, among other

things, it created a nuisance by maintaining the pole in a defective and

dangerous condition.      Id. at 133–34; 79 N.W.2d at 785–86.            We

concluded the nuisance claim was no more than one for negligence and

found it could not proceed as a separate claim from negligence. Id. at

142, 79 N.W.2d at 790.

      Kellogg relies on this distinction by claiming she is only suing for a

dangerous condition inherent in flooding, such as mold and the danger

of mixing water with electricity. She claims this makes her case one for

pure nuisance, not negligent design, construction, or failure to upgrade.

Kellogg emphasizes this claim can proceed under Cubit without reference

to or reliance on any evidence relating to negligence.

      3. Kellogg’s nuisance claim. The “based upon or arising out” test

articulated in Cubit examines whether the claim could be established

without using evidence of the immune conduct. The objective of the test

is to make sure a municipality is not exposed to liability for conduct

protected by the statutory immunity. In Cubit, the plaintiff’s claim was

barred because it could not be established without relying on evidence of

immunized conduct.        Yet, this critical inquiry is not necessarily

controlled by the burden of proof in every case.         As in Cubit, if the

plaintiff can only establish the claim by evidence of immune conduct, the

defendant need only raise the immunity statute as a defense. Yet, when
                                   13

a plaintiff is not required to prove a claim by evidence of immune

conduct, as Kellogg asserts in this case, the defendant can still support

an immunity defense by offering evidence that the conduct responsible

for the condition supporting the nuisance claim is in fact conduct

immunized under the statute.

      In this case, Kellogg was not required to prove the City was

negligent to establish a claim for pure nuisance. Yet, she was required to

prove the City engaged in conduct responsible for creating a nuisance.

This proof required Kellogg to show the City was responsible for the

sewer pipe.   This was an undisputed fact in the summary judgment

proceedings. At the same time, it was also an undisputed fact that the

City installed the sewer pipe pursuant to design and construction

standards in effect at the time. Additionally, Kellogg made no claim that

the City engaged in conduct outside the framework of the immunity

statute, such as a failure to properly maintain and repair the sewer pipe.

Thus, unlike in Cubit, the defendant needed to establish evidence that

conduct immunized under the statute was the conduct supporting the

claim for nuisance. To establish the affirmative state-of-the-art defense

in this case, the City offered uncontroverted evidence that Kellogg’s

nuisance claim was in fact based on the City’s failure to upgrade the

overburdened sewer pipe.    In response, Kellogg failed to contest these

facts. She failed to respond with evidence that the conduct of the City

responsible for the alleged nuisance was the type of conduct not

immunized by the statute.

      This approach to determining whether a claim falls within the

immunity under Iowa Code section 670.4(1)(h) is not only consistent with

the purpose and scope of the statute, but consistent with our

long-standing approach to distinguishing between claims of pure
                                      14

nuisance and claims of negligence.           To establish a claim of pure

nuisance, the claimant must demonstrate a “degree of danger (likely to

result in damage) inherent in the thing [responsible for the harm],

beyond that arising from mere failure to exercise ordinary care in its

use.”    Martins, 652 N.W.2d at 665 (Cady, J., dissenting) (quoting

Guzman, 489 N.W.2d at 11). Thus, as with nuisance claims supported

by negligent conduct beyond negligent design, construction, and failure

to upgrade, a pure nuisance claim based on harm inherent in an activity

falls outside the immunity statute.

        Accordingly, Kellogg failed to respond to the City’s summary

judgment evidence that her claim is nothing more than a claim alleging a

failure to upgrade the sewer pipe. Moreover, Kellogg cannot change the

outcome by attempting to transform her claim into one of pure nuisance

by limiting her recovery to the inherent dangers of a wet basement, such

as mold. The inherent danger of a pure nuisance claim emanates from

the activity engaged in by the defendant, not the activity’s consequent

irritants.   See id. at 662–64 (majority opinion) (assessing the dangers

inherent in supplying electricity, rather than inherent in injured cattle);

see also Hall, 248 Iowa at 142, 79 N.W.2d at 790. Therefore, because

Kellogg did not offer any evidence that the City’s storm sewer system was

inherently dangerous beyond the dangers associated with failing to

upgrade the pipe to accommodate the increased water flow, or that the

claim was otherwise based on conduct not given immunity, summary

judgment on Kellogg’s nuisance claim was properly granted by the

district court.

        B. Statute of Limitations.         Because Kellogg’s nuisance claim

does not survive summary judgment, we need not reach the issue of

whether Kellogg’s claim was barred by the two-year statute of limitations.
                                    15

      IV. Conclusion.

      Finding Kellogg did not introduce sufficient facts to survive

summary judgment on her nuisance claim, we vacate the decision of the

court of appeals and affirm the judgment of the district court.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Wiggins and Hecht, JJ., who concur

specially.
                                     16

                                   #15–2143, Kellogg v. City of Albia, Iowa

WIGGINS, Justice (concurring specially).

      I concur in the majority opinion but write separately to stress what

this case is not about. The only other argument besides the statute of

limitations that Wilma Kellogg makes in response to the City of Albia’s

motion for summary judgment is that her nuisance claim is not subject

to the immunity created by the state-of-the-art defense under Iowa Code

section 670.4(1)(h) (2015). As the majority rightly points out, a nuisance

claim is subject to the immunity created by the state-of-the-art defense if

the nuisance is caused by an improvement “that was constructed or

reconstructed in accordance with a generally recognized engineering or

safety standard, criteria, or design theory in existence at the time of the

construction or reconstruction.”          Iowa Code § 670.4(1)(h).       The

undisputed    evidence   presented    during      the   summary   judgment

proceeding supports the majority’s conclusion that the City constructed

the sewer system in accordance with a generally recognized engineering

standard.

      This holding today does not mean a city will be immune from all

nuisances caused by a sewer system constructed in accordance with a

generally recognized engineering standard. For example, if a city took an

existing sewer system constructed in accordance with a generally

recognized engineering standard but later increases the load on the

system beyond the original engineering standards by adding additional

flow to the system, a city may be liable for failing to maintain the system

to accommodate the increased flow. Kellogg did not present any evidence

supporting such a claim in the summary judgment proceeding. Thus, I

believe, based on the limited record, the majority opinion is correct.

      Hecht, J. joins this special concurrence.
