                IN THE SUPREME COURT OF IOWA
                             No. 31 / 05-1407

                            Filed May 11, 2007

DAVID FELDERMAN, Executor of the Estate
of MARY BELLE WESTPHAL, Deceased,

      Appellant,

vs.

CITY OF MAQUOKETA, IOWA,

      Appellee.


      Appeal from the Iowa District Court for Jackson County, Mark J.

Smith, Judge.



      Appeal from a district court ruling directing a verdict in favor of the

defendant. DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.



      Robert F. Wilson of Wilson, Matias, Hauser & Den Beste, Cedar

Rapids, for appellant.



      Michael C. Walker of Hopkins & Huebner, P.C., Davenport, for

appellee.
                                      2

WIGGINS, Justice.

      In this case we must decide if the district court was correct when it

directed a verdict in favor of the City of Maquoketa in a personal injury

action. Because the district court correctly directed the verdict in favor of

the City, we vacate the decision of the court of appeals and affirm the

judgment of the district court.

      On July 8, 2003, Mary Belle Westphal went to the Maquoketa

Community Center to watch her great-grandson attend a swimming class.

It was a rainy day, so the swimming class was held indoors at the center.

Westphal walked up the center’s front stairs. She reached the landing on
the top of the stairs, but after pulling on the front door, she fell backward,

flew through the air, and landed at the base of the stairs. No one witnessed

Westphal’s fall. Westphal suffered multiple elbow fractures, a fractured

shoulder, a fractured hip, a fractured rib, and a gash in her head. She was

in and out of the hospital and other care facilities from the time of the fall

until May 2004 when she died.

      Westphal’s estate brought a negligence action against the City. The

estate’s petition alleged the City was negligent in the design, construction,
and maintenance of the center. The matter proceeded to a jury trial. At the

close of the estate’s case, the City moved for a directed verdict. The district

court granted the motion finding there was insufficient evidence to create a

jury question on the issue of liability. The estate appealed the directed

verdict.

      We transferred the case to our court of appeals. The court of appeals

upheld the district court’s directed verdict with respect to the estate’s

negligent design and construction claims. However, the court of appeals

determined the evidence generated a jury question on whether the City
                                       3

negligently maintained the center’s front entrance. The court of appeals

remanded the case to the district court for a retrial.

       The City petitioned our court for further review and this court granted

the petition.

       We review the district court’s grant of a directed verdict for correction

of errors at law. Determan v. Johnson, 613 N.W.2d 259, 261 (Iowa 2000).

In doing so we take into 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. Yates v. Iowa West Racing Ass’n, 721 N.W.2d 762,

768 (Iowa 2006). If there is substantial evidence in the record to support

each element of a claim, the motion for directed verdict must be overruled.

Id.   Evidence is substantial when reasonable minds would accept the

evidence as adequate to reach the same findings. Id.; see also Determan,

613 N.W.2d at 261. “Our role, then, is to determine ‘whether the trial court

correctly determined that there was insufficient evidence to submit the
issue . . . to the jury.’ ” Determan, 613 N.W.2d at 261 (quoting Hasselman v.

Hasselman, 596 N.W.2d 541, 545 (Iowa 1999)).

       I. Negligent Design and Construction. Viewing the evidence in the light
most favorable to the estate, the evidence establishes the center’s front

threshold, doors, landing, railings, and stairs had not been reconstructed

since 1967 when the building was erected. The estate argues the City’s

answer to an interrogatory indicates in approximately 1992 the City

replaced the outside exterior front doors and in approximately 1999 the City

installed new latches on the outside doors. However, the estate never made

this interrogatory answer a part of the record. Accordingly, we will not

consider the answer in deciding this appeal.
                                      4

      The only evidence supporting a negligent design or construction

theory came from the estate’s expert. He testified the center’s front landing,

stairs, and railings failed to comply with certain provisions of the ADA

Standards for Accessible Design. The ADA standards relied upon by the

expert were revised as of July 1, 1994. See 28 C.F.R. pt. 36 app. A (1994).

      The Code provides a city is immune from liability for negligent design

or construction of a public facility if 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.” Iowa Code § 670.4(8) (2003). A city is not

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

facility to new, changed, or altered design standards. Id.         The person

making a negligent design or construction claim holds the burden to

establish the city did not construct or reconstruct the public facility in

accordance with a generally recognized engineering or safety standard,

criteria, or design theory in existence at the time of the construction or

reconstruction. Fischer v. City of Sioux City, 695 N.W.2d 31, 34 (Iowa 2005).

      The estate offered no proof of the City’s failure to adhere to a generally
recognized engineering or safety standard, criteria, or design theory in

existence in 1967 when the center was constructed. Consequently, the

estate’s claims based on negligent design and construction must fail.

      In its reply brief the estate raises for the first time its argument that

the City purchased insurance; thus, its immunity for negligent design and

construction is waived. See Iowa Code § 670.4; see also City of West Branch

v. Miller, 546 N.W.2d 598, 604 (Iowa 1996) (stating “if a liability insurance

policy is purchased covering the section 670.4 exceptions, governmental

immunity is waived as to those exceptions to the extent stated in the
                                      5

policy”). The estate failed to raise the waiver of immunity issue in the

district court. Ordinarily we do not decide an issue on appeal that was not

raised by a party or decided by the district court. Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002). Accordingly, we will not address the waiver

issue for the first time on appeal.

      Therefore, we affirm the district court’s ruling granting the City a

directed verdict on the estate’s claims for negligent design and construction.

      II. Negligent Maintenance. Section 670.4(8) does not provide a city

with immunity for negligent maintenance. Iowa Code § 670.4(8); see also

Radley v. Transit Auth., 486 N.W.2d 299, 302 (Iowa 1992) (holding “Iowa has

a policy that permits suits against the state for negligent maintenance of

highways”). Generally, questions of negligence and proximate cause are for

the jury. Larkin v. Bierman, 213 N.W.2d 487, 488 (Iowa 1973). Only in

exceptional cases can a court decide questions of negligence and proximate

cause as a matter of law. Id.
      The undisputed evidence establishes the entrance to the center had

two front doors, a right door and a left door. Viewing the evidence in the

light most favorable to the estate, reasonable minds could find Westphal
was unable to pull open the door to gain access to the center. Further,

reasonable minds could accept that the force Westphal exerted to pull open

the door caused her to lose her grip of the handle, fall backward, and land

at the base of the stairs.

      We also find reasonable minds could determine Westphal attempted

to open either the right or the left door.     We base this conclusion on

Westphal’s testimony, taken by the City’s insurance adjuster, and admitted

into evidence by the district court. In her statement Westphal initially

stated when she tried to enter the center she attempted to pull open the
                                       6

right door.   Later in her statement Westphal said she was somewhat

confused by the references to the right and the left. She then changed her

statement and said the door she attempted to pull open was the left door.

      Regardless if reasonable minds determine Westphal lost her grip on

the right door or the left door, the estate’s claim for negligent maintenance

cannot withstand the City’s motion for directed verdict. It does not matter

which door Westphal lost her grip on because there is no evidence in the

record to establish the City did not properly maintain either door on the day

Westphal fell.
      The estate attempted to offer evidence of negligent maintenance

through the testimony of its expert and Westphal’s granddaughter-in-law.

This testimony, however, does not establish the City failed to maintain

either of the center’s front doors at the time of Westphal’s fall.

      The estate’s expert based his testimony on Westphal’s statement that

she was trying to open the left door and on his inspection, some two years

after Westphal’s fall, of the center’s front threshold, doors, landing, railings,

and stairs. The expert testified the left door was the “active” door. The

expert further testified there were markings on the concrete below the left
door indicating a door had previously dragged on the landing. He was

unable to testify when these markings were made on the concrete.

      On the day the expert made his inspection, the doors were locked and

unavailable for testing. Therefore, he was not able to open or close the left

door to determine if it made or was making the markings on the concrete.

He was also unable to determine if there were any other problems with the

left door. The expert testified he did not know if the door was difficult to

open or not. Additionally, he testified even if he knew the door was difficult

to open on the day of his inspection, this fact does not mean the door would
                                         7

have been difficult for Westphal to open on the day of her fall. Thus,

specific to the day of Westphal’s fall, the expert could not and did not give

any opinion regarding a maintenance problem with the center’s left door.

Accordingly, there was not substantial evidence in the record so reasonable

minds could find the City failed to properly maintained the center’s left door

at the time of Westphal’s fall.

      Westphal’s    granddaughter-in-law       provided   the   only   evidence

regarding the right door. She testified that on the day of Westphal’s fall, she

arrived at the center shortly before Westphal. As she attempted to pull the

right door open, the granddaughter-in-law held her child with her left hand.

She was unable to pull the right door open. She thought the door was

locked. After pulling on the door twice, someone from inside the center

came and opened the door for her.
      The granddaughter-in-law’s testimony does not establish that the City

failed to maintain the right door at the time of Westphal’s fall. At best, this

testimony supports the testimony of the estate’s expert that the left door

was the only active door.         If the right door was locked, as Westphal’s

granddaughter-in-law thought, the door failed to open because it was locked
not because the City failed to maintain the right door at the time of

Westphal’s fall. Accordingly, there was not substantial evidence in the

record so reasonable minds could find the City failed to properly maintain

the center’s right door at the time of Westphal’s fall.

      Consequently, this is one of those exceptional cases where the court

should find, as a matter of law, a fact question regarding the issue of

negligence or proximate cause was not generated by the evidence.

Therefore, we must affirm the decision of the district court when it directed

a verdict in favor of the City.
                                     8

      Because the district court correctly directed the verdict in the City’s

favor, 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 Hecht, J., who takes no part.
