                IN THE SUPREME COURT OF IOWA
                              No. 15–1191

                           Filed June 2, 2017

                        Amended July 31, 2017


SPENCER JAMES LUDMAN,

      Appellee/Cross-Appellant,

vs.

DAVENPORT ASSUMPTION HIGH SCHOOL,

      Appellant/Cross-Appellee.


      Appeal from the Iowa District Court for Scott County, Nancy S.

Tabor, Judge.



      A defendant appeals an adverse verdict finding it negligent in

maintaining its premises. REVERSED AND CASE REMANDED.



      Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C.,

Des Moines, for appellant/cross-appellee.


      Steven J. Crowley and Edward Prill of Crowley, Bünger & Prill,

Burlington, for appellee/cross-appellant.



      Brian J. Humke and Ryan G. Koopmans (until withdrawal) of

Nyemaster Goode, P.C., Des Moines, for amicus curiae Iowa High School

Athletic Association.

      Joel E. Fenton of Law Offices of Joel E. Fenton, PLLC, Des Moines,

Elaine F. Gray of Fehseke & Gray Law Offices, Fort Madison, and
                                  2

Eashaan Vajpeyi of Ball, Kirk & Holm, P.C., Waterloo, for amicus curiae

Iowa Association for Justice.
                                     3

WIGGINS, Justice.

      A high 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.

      I. Background Facts and Proceedings.

      In May 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.

      The 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
                                     4

dugout positioned behind the fence, and it had two levels on which the

players could sit.

      At the 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.

      Ludman 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.

      The 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.

      On April 5, 2013, Ludman filed a premises liability action against

Assumption, alleging negligence,
                                    5
              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
      injury.

      Assumption 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 owed 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.

      Shortly 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 first motion.”

      Before 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
                                      6

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.

      On June 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.”

      Ludman 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.

      At the 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
                                     7

Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), and it did

not breach any limited duty that was owed.

      The 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.

      On June 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.

      Assumption 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.

      II. Motion to Strike Ludman’s Final Brief.

      The 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
                                     8
      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 corrected.

Iowa R. 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).

      Comparing 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.

      III. Issues.

      On 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
                                      9

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 proper lookout.

      Because of our decision, we need not reach Ludman’s cross-

appeal.

      IV. Standard of Review.

      Our 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)).

      Here, 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).

      Finally, 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. Id.
                                      10
     V. Whether Assumption Was Entitled to a Directed Verdict on
the Duty Element of Ludman’s Negligence Claim.

      Although 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.

      A. 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
                                    11
      warning; and (7) the burden on the land occupier and/or
      community in terms of inconvenience or cost in providing
      adequate protection.

Id. (quoting Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa

1998)).

      Since 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.

Id.

      Comment 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-
                                       12

duty rule due to an open and obvious condition relieves Assumption of

the duty contained in section 51 of the Restatement (Third).

         B. 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 Physical and Emotional Harm.

Id. § 51 cmt. b, at 243–44. Thus,

         [i]n exceptional cases, when an articulated countervailing
         principle or policy warrants denying or limiting liability in a
         particular class of cases, [we] may decide that the defendant
         has no duty or that the ordinary duty of reasonable care
         requires modification.

Id. § 7(b), at 77 (Am. Law Inst. 2010). In other words, we have found

“some     activities   or   circumstances    have   been    excepted from   the

reasonable-care duty in favor of the imposition of a less stringent duty of

care.”     Feld, 790 N.W.2d at 76.          “One such activity that has been

identified as an exception is contact sports.”        Id.   We formulated the

contact-sports exception as follows:

         [K]nown risks associated with a contact sport are assumed
         by participants in the sport, and it is inapposite to the
         competitiveness of contact sports to impose a duty on
         participants to protect coparticipants from such known and
         accepted risks through the exercise of reasonable care.

Id. at 76–77 (emphasis added).              By definition, the contact-sports

exception applies only to a duty owed by one participant in the sport to

another.

         We have only recognized the contact-sports exception in cases

relating to the duty of care owed by the participants in an activity and,

like other jurisdictions, have not applied it to the duty of owners of a

sports facility in a premises liability action. See id. at 79 (holding softball

is a contact sport and any liability of the batter had to be predicated on
                                    13

reckless conduct rather than ordinary negligence); Leonard ex rel. Meyer

v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999) (per curiam) (holding the

game of paintball to be a contact sport and imposing a duty for

participants in the sport to refrain from reckless or intentional conduct).

Courts generally accept the view that the contact-sports exception only

applies to participants.     See generally Richard E. Kaye, Annotation,

Construction and Application of Contact Sports Exception to Negligence, 75

A.L.R.6th 109, 121–22 (2012).

      Ludman bases his action on premises liability. Ludman’s action is

against the possessor of the premises, not a fellow participant. Thus, the

contact-sports exception is not applicable.

      C.   Primary Assumption of the Risk or Limited-Duty Rule

Because the Risk of Injury Was Open and Obvious to Ludman. In its

brief, Assumption fails to recognize Koenig as the controlling law in a

premises liability action.    Rather, it relies on section 343A of the

Restatement (Second) of Torts to support its position. The Restatement

(Second) made distinctions regarding the duty owed by a possessor of

land as to whether the person on the land was an invitee or licensee. See

Restatement (Second) of Torts §§ 342–43, at 210–18 (Am. Law Inst. 1965)

[hereinafter Restatement (Second)]. It also had a no-duty rule on known

or obvious risks. The Restatement (Second) provided,

      A possessor of land is not liable to his invitees for physical
      harm caused to them by any activity or condition on the land
      whose danger is known or obvious to them, unless the
      possessor should anticipate the harm despite such
      knowledge or obviousness.

Id. § 343A(1), at 218.     The cases Assumption relies on also predate

Koenig.
                                    14

      In Dudley, a college baseball player sued his coach and college

after a foul ball struck him in the eye while sitting on the bench during a

home baseball game.       Dudley, 219 N.W.2d at 484–85.        The college

baseball diamond did not have dugouts or netting protecting the bench

from the playing field. Id. at 485. Dudley’s principal claim was that his

college and his coach should have protected him and other players “by a

fence, a screened dugout, a greater distance, or some other method.” Id.

at 486.   We acknowledged that Dudley was not a spectator, but a

member of the team. Id.

      While we said, “players in athletic events accept the hazards which

normally attend the sport,” we clearly stated that “the sponsor is [not]

absolved of using care.” Id. The owner of a ballpark or sponsor of the

sporting event was still “subject to the general duty to conduct himself as

an ordinarily prudent person under like circumstances to protect others

from unreasonable risk of harm.”         Id. (citing Restatement (Second)

§§ 282, 283 and William L. Prosser, Handbook on the Law of Torts §§ 31–

32, at 145, 149 (4th ed. 1971)). We further stated that when a player

introduces “substantial proof of want of due care by the sponsor, the

player generates a jury issue on negligence.” Id.

      The use of the term substantial proof did not connote a higher

standard to prove negligence.      Rather, our courts use the phrase

substantial proof interchangeably with the term substantial evidence.

Offermann v. Dickinson, 175 N.W.2d 423, 425–26 (Iowa 1970). “Evidence

is substantial if a jury could reasonably infer a fact from the evidence.”

Johnson v. Interstate Power Co., 481 N.W.2d 310, 317–18 (Iowa 1992).

      We found, however, that Dudley did not present substantial

evidence to generate a question for the jury on his negligence claim.

Dudley, 219 N.W.2d at 486. We did not find the college or coach owed no
                                      15

duty as a matter of law to Dudley because he was a baseball player or he

had assumed the inherent risks of participating in a baseball game. We

merely found Dudley failed to prove evidence sufficient to support his

claim of negligence. Id. at 486–87.

      The next case Assumption relies upon involves a spectator hit by a

misthrown ball at a softball facility. Arnold, 443 N.W.2d at 332. There,

we noted the doctrine of primary assumption of the risk is a limited-duty

rule. Id. at 333. We explained the doctrine as follows:

      Primary assumption of the risk is not an affirmative defense.
      It is “an alternative expression for the proposition that
      defendant was not negligent, i.e., either owed no duty or did
      not breach the duty owed.” It is based on the concept that a
      plaintiff may not complain of risks that inhere in a situation
      despite proper discharge of duty by the defendant. Primary
      assumption of risk is merely a label for denying that a duty
      existed or that a duty was breached.

Id. (quoting Nichols v. Westfield Indus., Ltd., 380 N.W.2d 392, 399 (Iowa

1985)).

      There, we drew a line on the scope of a duty of care an owner or
operator of a ballpark owes to “protect spectators of a baseball game at a

baseball park” in the area behind home plate.        Sweeney v. City of

Bettendorf, 762 N.W.2d 873, 887 (Iowa 2009) (Cady, J., dissenting). We

held, the owner of the park “need only provide screening for the area of

the field behind home plate where the danger of being struck by a ball is

the greatest.” Arnold, 443 N.W.2d at 333. If a spectator chooses to sit in

a less protected area, the spectator may not complain of risks that are

open and obvious in not sitting behind a screen; and thus, the owner of

the park has no duty to that spectator. Id. at 333–34.

      Subsequent to our decision in Arnold, two developments in the law

occurred. First, our court has been hesitant to continue to apply this
                                    16

limited-duty rule. Second, the Restatements of Torts (Third) have backed

away from a no-duty rule when the plaintiff knows of an open and

obvious risk inherent in an activity.

      1. Iowa caselaw. In 1995, we refused to apply a limited-duty rule

to the risk inhering when a person walks on an icy parking lot. Wieseler

v. Sisters of Mercy Health Corp., 540 N.W.2d 445, 452 (Iowa 1995). In

Wieseler, we acknowledged the dangers of walking on ice were known or

obvious to the plaintiff. Id. at 451. However, the known and obvious

danger was not determinative of the landowner’s duty. Rather, a danger

that is known and obvious goes to the question of whether the plaintiff

was negligent. Id.

      In a recent case, we refused to extend the limited-duty rule to a

negligent supervision situation at a baseball park. Sweeney, 762 N.W.2d

at 882 (majority opinion).     In Sweeney, we noted that despite our

recognition of the limited-duty rule,

            [t]here has been some resistance to inherent risk or
      the limited duty doctrine. For example, Professor James
      noted long ago that the primary assumption of risk doctrine,
      of which the limited duty rule is a variant, provides “an
      exceptional curtailment of defendant’s duty below the
      generally prevailing one to take care to conduct oneself so as
      not to cause unreasonable danger to others.” . . . There
      appears to be a move within the legal profession away from
      the rule.

Id. at 882 n.4 (quoting James Fleming Jr., Assumption of Risk, 61 Yale

L.J. 141, 168 (1952)).

      2.   Position of Restatements (Third) of Torts.   The Restatement

(Third) of Torts: Liability for Physical and Emotional Harm and the

Restatement (Third) of Torts: Apportionment of Liability indicate there is

a move to abandon a no-duty rule when plaintiff knows of an open and

obvious risk inherent in an activity.
                                    17

      Our decision in Koenig aligns our law with section 51 of the

Restatement (Third) of Torts: Liability for Physical and Emotional Harm’s

position. Comment k to section 51 provides, in relevant part,

      Known or obvious dangers pose less of a risk than
      comparable latent dangers because those exposed can take
      precautions to protect themselves. Nevertheless, despite the
      opportunity of entrants to avoid an open and obvious risk, in
      some circumstances a residual risk will remain.         Land
      possessors have a duty of reasonable care with regard to
      those residual risks.    Thus, the fact that a dangerous
      condition is open and obvious bears on the assessment of
      whether reasonable care was employed, but it does not
      pretermit the land possessor’s liability. This treatment of
      land possessors is consistent with that of other actors who
      create risks.

             An entrant who encounters an obviously dangerous
      condition and who fails to exercise reasonable self-protective
      care is contributorily negligent. Because of comparative
      fault, however, the issue of the defendant’s duty and breach
      must be kept distinct from the question of the plaintiff’s
      negligence. The rule that land possessors owe no duty with
      regard to open and obvious dangers sits more comfortably—
      if not entirely congruently—with the older rule of
      contributory negligence as a bar to recovery.

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 51

cmt. k, at 251–52 (citation omitted).

      Section 51 is consistent with our decision in Wieseler. There, we

recognized the plaintiff’s knowledge of a known open and obvious risk

inherent in walking on an icy surface did not end the duty analysis.

Wieseler, 540 N.W.2d at 450.       Even though the risk was open and

obvious, a possessor of land could be liable if the possessor realizes the

plaintiff might fail to protect him or herself from the condition or realize

how dangerous the condition was in spite of its openness and

obviousness. Id. at 452.
                                          18

       The court gave Assumption an instruction on these very points.

Instruction No. 12 provided in part that Ludman had to prove as an

element of his case:

             1. That Assumption knew, or in exercise of reasonable
       care should have known that the location and condition of
       the visitor’s dugout at the Assumption ball field involved an
       unreasonable risk of injury to a person such as Spencer
       Ludman as a visiting ball player.

              2. Assumption knew or in the exercise of reasonable
       care, should have known:

                    a) That the plaintiff would not discover the
              condition, or

                    b) The plaintiff would not realize the condition
              presented an unreasonable risk of injury, or

                    c) The plaintiff would not protect himself from
              the condition. 1

       Additionally, Wieseler acknowledges plaintiff’s knowledge of an

open and obvious risk inherent in an activity is not conclusive in

determining the possessor of land’s duty. Id. at 451–52. Rather, it is




       1Under the Restatement (Third) of Torts: Liability for Physical and Emotional

Harm § 51, this part of the instruction may no longer be needed. As comment a of the
Restatement (Third) points out,

       The rule requires a land possessor to use reasonable care to investigate
       and discover dangerous conditions and to use reasonable care to attend
       to known or reasonably knowable conditions on the property. While
       § 343 also required that the danger be one that the land possessor
       expects entrants will not discover or, even if known, will fail to protect
       themselves against, here that requirement is subsumed within the
       reasonable-care standard, which only requires attending to the
       foreseeable risks in light of the then-extant environment, including
       foreseeable precautions by others.

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 51 cmt. a,
at 243.
                                        19

important in determining whether the court will allow the jury to find

plaintiff has some degree of contributory fault. Id. at 451.

      The Restatement (Third) of Torts: Apportionment of Liability

supports Wieseler’s conclusion that the plaintiff’s knowledge of an open

and obvious risk inherent in an activity applies to the plaintiff’s

contributory fault, but does not negate the possessor of land’s duty.

Comment     c   to   section   3   of   the   Restatement   (Third)   of   Torts:

Apportionment of Liability provides in relevant part,

            A plaintiff who is actually aware of a reasonable risk
      and voluntarily undertakes it, as when a parent tries to
      rescue a child from a fire, is not negligent. The parent may,
      however, be negligent for other reasons, such as the manner
      of the rescue. When a plaintiff is negligent, the plaintiff’s
      awareness of a risk is relevant to the plaintiff’s degree of
      responsibility.

Restatement (Third) of Torts: Apportionment of Liab. § 3 cmt. c, at 32

(Am. Law Inst. 2000).       An illustration appearing in the Restatement

(Third): Apportionment of Liability provides,

      A attends a baseball game at B’s ballpark. A sits in a portion
      of the stands beyond the point where the screen prevents
      balls from entering the seats.        A is aware that balls
      occasionally are hit into the stands. The fact that A knew
      balls are occasionally hit into the stands does not constitute
      assumption of risk. The fact that A knew balls occasionally
      are hit into the stands is relevant in evaluating whether A
      acted reasonably by engaging in particular types of conduct
      while sitting in the stands (sitting in the stands would not
      itself constitute unreasonable conduct). If the factfinder
      concludes that A did not act reasonably under the
      circumstances, A’s knowledge of the risk is relevant to the
      percentage of responsibility the factfinder assigns to A. See
      § 8. If B could reasonably assume that A and other fans are
      aware that balls are occasionally hit into the stands, this fact
      is also relevant to whether B acted reasonably in relying on A
      to watch out for balls instead of constructing a screen or
      providing warnings.

Id. § 3 cmt. a, illus. 6, at 32–33.
                                     20

      The commenters to the Restatement explain the reason for its

position as follows:

      A plaintiff who acts unreasonably in the face of a known
      danger may be more culpable than is a plaintiff who acts
      unreasonably in the face of an unknown risk. Moreover, a
      defendant’s reasonable belief about the plaintiff’s state of
      mind might be relevant to determining whether the
      defendant was negligent. A defendant could argue that he
      relied on the plaintiff to watch out for her own safety, such
      as when a person playing catch relies on a belief that the
      other person knows the ball is coming. A person who
      reasonably believes another person knows about a risk
      might reasonably undertake fewer burdens in protecting the
      other person.     Some courts call that doctrine “primary
      assumption of risk.” This Section does not affect the way a
      plaintiff’s knowledge of a risk might bear on an evaluation of
      whether the defendant was negligent.

Id. § 3 Reporters’ Note cmt. c, at 42 (citations omitted) (emphasis added).

      We need not decide today whether Arnold is still good law in light

of the Restatement (Third) of Torts: Apportionment of Liability’s position.

The case before us centers on an allegation that the dugout was

defectively designed and therefore dangerous.       It does not involve a

spectator sitting in an unprotected area of the stadium.

      The instructions given by the court in this case were consistent
with the progression of our law after we decided Arnold. They are also

consistent with the Restatement (Third) of Torts: Liability for Physical

and   Emotional        Harm   and   the   Restatement   (Third)   of   Torts:

Apportionment of Liability.

      D. Conclusion. Accordingly, we find the district court was correct

in overruling Assumption’s motions for directed verdict based on the
                                           21

contact-sports exception and primary assumption of the risk or limited-

duty rule. 2

      VI. Whether Ludman Presented Sufficient Evidence to Give
Rise to a Jury Question.

       Assumption argues that even if we find it owed a duty of care to

Ludman, the court should have still granted judgment in its favor based

upon insufficiency of the evidence to generate a jury question under the

general negligence standard applicable in this premises liability case.

       The parties disagree as to which instruction on negligence we

should measure the sufficiency of the evidence. Ludman contends that

he produced sufficient evidence at trial to meet all of the elements of Jury

Instruction No. 11, which the court based on the general negligence

instruction we adopted in Koenig.

       Jury Instruction No. 11 provided,

              Owners and occupiers of land, including the ball park
       which is at issue in this case, owe a duty to exercise
       reasonable care in the mainten[ance] of their premises for
       the protection of lawful visitors. You may consider the
       following factors when evaluating whether Assumption
       exercised reasonable care for the protection of lawful visitors
       such as Spencer Ludman:

               1. The foreseeability or possibility of harm;

            2. The purpose for which the visitor entered the
       premises;



       2Even  if the primary assumption of the risk or limited-duty rule were still viable,
we doubt they would apply to the facts of this case. The facts of this case are similar to
the cases in which courts allow spectators to recover for negligence when an owner fails
to provide or maintain sufficient screening behind home plate. See Edling v. Kansas
City Baseball & Exhibition Co., 168 S.W. 908, 910 (Mo. Ct. App. 1914); Uzdavines v.
Metro. Baseball Club, Inc., 454 N.Y.S.2d 238, 245–46 (Civ. Ct. 1982). The danger of a
player being hit by a foul ball in the dugout is not an inherent risk if the dugout was
properly designed.
                                   22
             3. The time, manner, and circumstances under which
      the visitor 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;

            6. The opportunity and ease of repair or correction;
      and

           7. The burden on the land occupier and/or
      community in terms of inconvenience or costs in providing
      adequate protection.

            8. Any other factors shown by the evidence bearing on
      this question.

      Assumption claims that Ludman failed to prove the elements in

Jury Instruction No. 12. Jury Instruction No. 12 is based on the Iowa

Bar Association’s Iowa Civil Jury Instruction 900.1 (premises liability—

essentials for recovery—condition of premises—duty to lawful visitors).

Ludman did not challenge Instruction No. 12 and submitted it as a

proposed instruction. Because neither party objected to this instruction,
it becomes the law of the case. Easton, 751 N.W.2d at 5.

      Jury Instruction No. 12 provided,

           In order to recover damages in this case, Spencer
      Ludman must prove all of the following propositions by
      preponderance of the evidence:

            1. That Assumption knew, or in exercise of reasonable
      care should have known that the location and condition of
      the visitor’s dugout at the Assumption ball field involved an
      unreasonable risk of injury to a person such as Spencer
      Ludman as a visiting ball player.

             2. Assumption knew or in the exercise of reasonable
      care, should have known:

                  a) That the plaintiff would not discover the
            condition, or
                                         23
                    b) The plaintiff would not realize the condition
              presented an unreasonable risk of injury, or

                    c) The plaintiff would not protect himself from
              the condition.

               3. Assumption was negligent because, given the
       proximity and location of the visitor’s dugout to home plate,
       it failed to take reasonable care to protect people such as
       Spencer Ludman in:

                    a) failing to fence or protect the entire area of
              the dugout with gates or barriers, or

                     b) failing to provide an alternate entrance

              4. That Assumption’s negligence was a cause of the
       plaintiff’s damage.

              5. The nature and extent of the damage.

              6. If the plaintiff has failed to prove any of these
       propositions, the plaintiff is not entitled to damages. If the
       plaintiff has proved all of these propositions, then you will
       consider the defense of unreasonable failure to avoid an
       injury, as explain in instruction number 13. 3

       We construe jury verdicts liberally to give effect to the intention of

the jury. Olson v. Prosoco, Inc., 522 N.W.2d 284, 292 (Iowa 1994).                 A

court should only grant a directed verdict if there is no substantial

evidence to support the elements of the plaintiff’s claim. Pavone v. Kirke,

801 N.W.2d 477, 486 (Iowa 2011).              Evidence is substantial “[w]hen

reasonable minds would accept the evidence as adequate to reach the

same findings.” Easton, 751 N.W.2d at 5. A directed verdict is improper

and the case must go to the jury where reasonable minds could differ on

an issue.    Pavone, 801 N.W.2d at 487.            In determining if there was

substantial evidence to submit the issue to the jury, we must “take into


       3As stated in footnote 1, paragraphs 2a, 2b, and 2c of this instruction may no

longer be needed.
                                    24

consideration all reasonable inferences that could be fairly made by the

jury” and “view the evidence in the light most favorable to the nonmoving

party.” Id.

      Ludman presented evidence of the ASTM standards, which

recommended a protective fencing cover the entire opening of a subgrade

dugout. He also presented evidence of the NFHS recommendation that a

dugout should be sixty feet from the foul line.      Ludman introduced

evidence that Assumption did not comply with either of these standards.

      Ludman did not realize the visitor’s dugout strayed from these

recommendations as he testified the only thing he noticed about the

dugout was that it was cramped and had a cement floor. He testified

that he did not realize Assumption had replaced the net that used to

cover the top portion of the dugout with a fence. In short, substantial

evidence supports the propositions that Ludman would not discover the

condition, or not realize the condition presented an unreasonable risk of

injury, or would not protect himself from the condition.

      Assumption’s coach testified that he had seen foul balls enter the

visitor’s dugout prior to Ludman’s injury. Ludman introduced purported

safer alternative designs, such as fencing the entire dugout and moving a

protective doorway to the south end, the installation of L-shaped barriers

for each door, or moving the visitor’s dugout.

      Thus, viewing the evidence in the light most favorable to Ludman

and taking into consideration all reasonable inferences that a jury could

fairly make, Ludman presented sufficient evidence to give rise to his

negligence claim against Assumption.
                                    25
      VII. Whether the District Court Erred in Barring Assumption
from Presenting Evidence Concerning the Custom and Standard
Practice in the Design and Construction of Dugouts at Schools
Throughout the Mississippi Athletic Conference.

      A. Law Generally. “[E]vidence of what is usual and customary is

generally admissible on the issue of negligence.” McCrady v. Sino, 254

Iowa 856, 861, 118 N.W.2d 592, 594–95 (1962). “An actor’s compliance

with the custom of the community, or of others in like circumstances, is

evidence that the actor’s conduct is not negligent but does not preclude a

finding of negligence.” Restatement (Third) of Torts: Liab. for Physical &
Emotional Harm § 13, at 146. “A custom is a widespread and, for some

courts, nearly universal practice.”      Kenneth S. Abraham, Custom,

Noncustomary Practice, and Negligence, 109 Colum. L. Rev. 1784, 1788

(2009) (citing Dan B. Dobbs, The Law of Torts § 163, at 394 (2000)). In a

footnote, Abraham further states,

      Although the courts rarely engage in an express headcount,
      discussions of the custom rule seem to me to presuppose
      that a practice must be followed by at least a majority of
      relevant actors in order to qualify as a custom.

Id. at 1788 n.9.

      A witness who is qualified by knowledge and experience can testify

to a custom or usage’s existence in a particular trade or business.

McCrady, 254 Iowa at 861, 118 N.W.2d at 595. The testimony does not

have to call for the opinion of the witness as an expert. Gibson v. Shelby

Cty. Fair Ass’n, 246 Iowa 147, 153, 65 N.W.2d 433, 437 (1954). Instead,

the record must establish the custom as a matter of fact, not as a matter

of opinion. Id. A witness may testify to the existence, as a fact, of a

custom or usage, if he or she is qualified by knowledge and experience in

any particular trade.   Id.   To be qualified to testify as to custom and

usage, the person testifying must have “adequate knowledge of the
                                         26

custom or usage as a fact” and “occup[y] such a position as to know of

the existence of the custom as a fact.” Id. (quoting 32 C.J.S. Evidence

§ 483). In other words, if a person knows what a custom is, that person

is qualified to testify to the custom.

      However, we have developed some limitations on the admissibility

of custom and usage testimony.           One such exception is that a court

should not admit a custom into evidence if the custom does not extend to

the type of conduct at issue in the litigation. Simon’s Feed Store, Inc. v.

Leslein, 478 N.W.2d 598, 602 (Iowa 1991). In Simon’s Feed Store, Inc.,

we concluded that a jury instruction on custom was reversible error

because

      there was no showing made that the design criteria
      applicable to bridges on public highways constitute a custom
      that is generally followed in designing bridges on privately
      owned roadways.        In the absence of proof of similar
      anticipated traffic patterns, the seemingly great difference in
      amounts and types of traffic negates any suggestion of
      comparability.

Id.

      Another limitation is that we do not allow admission of custom or

usage if the act itself is clearly careless or dangerous. Iverson v. Vint,

243 Iowa 949, 951–52, 54 N.W.2d 494, 495–96 (1952). In Iverson, we

refused to admit evidence regarding the dumping of spoiled molasses.

Id. In reaching this conclusion, we stated,

            The evidence relied upon in the case at bar does not
      show a custom to exercise care in the disposal of large
      quantities of spoiled molasses. On the contrary, it shows the
      absence of any precautions. “It is common practice . . . to
      dump it wherever they can. We dumped it where it was most
      convenient.” The failure to exercise any precautions in the
      disposal of this mass of molasses would indicate negligence
      rather than reasonable care.

Id. at 952, 54 N.W.2d at 495–96.
                                     27

      B.   Analysis.   Assumption attempted to introduce pictures of

dugouts from nine other schools in the same high school conference as

evidence of custom in the design of dugouts. The district court did not

allow this testimony stating,

             Plaintiff is seeking to provide evidence of the alleged
      due care standard by expert testimony, not by custom.
      Therefore, what other schools do as to following the
      regulations or agreeing to play on a non-regulated field is
      irrelevant to what Defendant did in this case or whether
      Defendant has no duty. To allow that comparison would be
      similar to allowing a motorist to argue that because they
      were in a line of cars that were all exceeding the speed limit
      that they did not violate the speeding law in effect for that
      portion of the roadway.

      We find the district court’s comparison to speed limit laws are like

comparing apples to oranges. Generally, if there is a conflict between a

statute and custom, the statute controls. Langner v. Caviness, 238 Iowa

774, 778, 28 N.W.2d 421, 423 (1947). Motorists are required to follow

speed limit laws unless the motorist has a legal excuse. Deweese v. Iowa

Transit Lines, 218 Iowa 1327, 1332, 256 N.W. 428, 430 (1934). In this

case, there are no mandatory statutes requiring Assumption to build its

field in any specific manner.    Second, parties can prove negligence by

expert testimony or by custom. We cannot find any authority precluding

a party from using a different method than that of the opposing party to

prove or disprove negligence. See Parsons v. Nat’l Dairy Cattle Cong., 277

N.W.2d 620, 624 (Iowa 1979) (alluding to the fact that the jury weighs

custom against expert testimony to determine negligence).

      Assumption attempted to establish custom through the testimony

of architect Greg Gowey.        In its offer of proof and his testimony,

Assumption established Gowey had designed baseball facilities and was

familiar with nine dugouts from other schools in the conference.       He
                                      28

testified concerning the design of those dugouts.          One dugout at

Bettendorf had openings at the sides of the visitor’s dugout. All the other

schools had openings in the front of the visitor’s dugouts, although

Pleasant Valley had only one opening in the front of the dugout nearest

to home plate.    The rest of the schools had two openings similar to

Assumption’s dugout for visitors.

      Gowey, by his knowledge and experience, knew what the custom

as to the design of the visitor’s dugout was throughout the conference.

This made him qualified to testify. Although one school only had one

opening in the front of its visitor’s dugout and another school had side

entrances, we find the testimony was sufficient for the jury to consider if

Assumption was not negligent due to the custom of the community.

      Evidence of custom is not conclusive on Assumption’s lack of

negligence. See Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 385,

101 N.W.2d 167, 173 (1960).         It is still up to the jury to weigh the

evidence of custom against the other evidence in the record and

ultimately determine the issue of negligence based on the facts and

circumstances of the case. Parsons, 277 N.W.2d at 624.

      Accordingly, we find the district court abused its discretion by not

allowing the evidence of custom.

      VIII. Whether the District Court Erred by Precluding a Jury
Instruction on Proper Lookout.

      Assumption argues the court should have permitted a jury

instruction on proper lookout “as there was competent evidence at trial

that Ludman voluntarily placed himself in an unprotected area of the

dugout and then failed to watch as the batter swung and struck the ball

that subsequently hit him.” We measure whether a person maintains a

proper lookout by what an ordinarily reasonable and prudent person
                                       29

would do under the same or similar circumstances. Coker v. Abell-Howe

Co., 491 N.W.2d 143, 150 (Iowa 1992). A “ ‘[p]roper lookout’ means more

than merely to look straight ahead, or more than seeing the object.” Id.

A proper lookout “implies being watchful of the movements of one’s self

in relation to the things seen and which could have been seen in the

exercise of ordinary care.”     Id.    Assumption requested the court to

instruct the jury on lookout as part of its comparative-fault defense. The

instruction it asked the court to submit was a proper statement of the

law.

       “As long as a requested instruction correctly states the law, has

application to the case, and is not stated elsewhere in the instructions,

the court must give the requested instruction.”       Beyer v. Todd, 601

N.W.2d 35, 38 (Iowa 1999) (quoting Vaughan v. Must, Inc., 542 N.W.2d

533, 539 (Iowa 1996)). If substantial evidence in the record supports a

party’s legal theory, it is entitled to submit that theory to the jury. Id.

“Evidence is substantial enough to support a requested instruction when

a reasonable mind would accept it as adequate to reach a conclusion.”

Id.    (quoting Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996)).

However, we will not reverse the district court’s failure to give a

requested jury instruction unless it prejudices the party requesting the

instruction. Id.

       Ludman resisted Assumption’s request for the instruction on

proper lookout, contending that the only testimony in the record was

that he was looking out of the dugout at the field of play. In response to

Assumption’s request for a proper lookout instruction, the court denied

its submission to the jury, stating,

             As to the proper lookout, I do believe that there’s
       evidence -- the direct evidence of everyone was that he was
                                      30
      facing the field. He was watching the game. He was
      encouraging or whatever. There’s issues of whether he was -
      - the only thing that I can point to in the evidence would be
      the newspaper article talking about him taking off the
      batting helmet, which seemed to infer that he had turned,
      and I don’t believe anybody -- there was no testimony before
      us here of any eyewitness that said that he actually turned
      his back. That was the whole batting helmet thing.

             I do find that the motion should be granted as to the
      proper lookout, but I’m going to submit comparative fault as
      to whether he could have avoided the injury by standing at a
      different part of the dugout.

      On appeal, we have the benefit of Ludman’s testimony from the

transcript. At trial, he testified as follows:

           Q: What was your -- so you saw the pitch thrown?
      A: Yes.

            Q: And did you see Brooks hit it or what happened
      next? A: I heard him hit it. Um, I saw the pitch being
      thrown, and the way I was positioned coming back toward
      facing the field, so putting my foot on the step and
      everything, I saw the pitch being thrown, and the next thing
      I saw was the ball.

            Q: Where was the ball in your field of vision at that
      point? A: Right here.

            Q: You’re indicating with your left hand up by the left
      side of your head? A: Yes.

            Q: So when you finally picked it up off of -- strike
      that. When you visually picked the ball up, was it that close
      to you? A: Yes. It was peripheral vision, is how I could see
      it.

      Although Ludman stated he was watching the game, a reasonable

person could find he failed to follow the ball from the pitcher to the

batter’s bat and therefore, failed to maintain a proper lookout. Under the

law of proper lookout, a jury could have decided Ludman was not “being

watchful of the movements of one’s self in relation to the things seen” by

failing to follow the ball, and that constituted negligence. See Coker, 491
                                      31

N.W.2d at 150.      We also cannot say the court’s failure to give this

instruction did not prejudice Assumption.         Accordingly, based on

Ludman’s testimony regarding his lookout, it was error for the court not

to instruct the jury on proper lookout.

      IX. Disposition.

      We find that Assumption owed a duty of care to Ludman and

substantial evidence supported the jury verdict.    However, we find the

district court abused its discretion in not allowing Assumption to present

evidence of custom.     We further find the district court erred when it

failed to instruct the jury on the 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.

      REVERSED AND CASE REMANDED.
