                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2086
                              Filed August 7, 2019


JAYNE A. INTLEKOFER, JEFFREY C. INTLEKOFER, CATHERINE A.
INTLEKOFER and STEPHEN J. INTLEKOFER,
     Plaintiffs-Appellants,

vs.

REITBERRY RENTAL PROP., LLC, and CITY OF MONTICELLO, IA,
     Defendants-Appellees.
________________________________________________________________


       Appeal from the Iowa District Court for Jones County, Paul D. Miller, Judge.



       Property owners appeal the district court’s grant of summary judgment in

their negligence action against the City and a neighboring business. AFFIRMED.



       Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.

       Bradley J. Kaspar and Terry J. Abernathy, Cedar Rapids, for appellee City

of Monticello.

       Dillon J. Besser and William H. Roemerman of Elderkin & Pirnie, P.L.C.,

Cedar Rapids, for appellee Reitberry Rental Properties, LLC.



       Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.
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TABOR, Judge.

       After suffering water damage to their property in downtown Monticello, the

Intlekofers1 sued the City of Monticello (the City) and a neighboring business. They

alleged the defendants’ construction of a parking lot and a new sidewalk or curb

caused seepage into the Intlekofers’ building. The Intlekofers now appeal the

district court’s grant of summary judgment for the defendants.              Because the

Intlekofers’ failure to designate an expert on water infiltration was fatal to

establishing their negligence case, we affirm the summary-judgment order.

I.     Background Facts and Proceedings
       The Intlekofers own real estate on East Grand Avenue in Monticello. The

City owns land just west of the Intlekofers’ property.            And Reitberry Rental

Properties, LLC owns property to the north, abutting the Intlekofers’ lot.

       On its land, the City constructed a parking lot stretching to the property line.

According to the Intlekofers, the City raised the elevation of the parking lot an

estimated twelve to eighteen inches higher than the alley that framed the

Intlekofers’ property. After the City constructed the new lot, Reitberry improved a

sidewalk and curb running the length of the dividing line between its property and

the Intlekofers’ real estate.

       Some months after the City and Reitberry finished those projects, the

Intlekofers noticed rainwater had stopped flowing freely out of the alley bordering

the sidewalk and parking lot. The Intlekofers later found water damage to drywall

and cabinets on the west side of their building, which housed an asbestos-


1
 Stephen Intlekofer, Jayne Intlekofer, Jeffrey Intlekofer, and Catherine Intlekofer, share
ownership of the property. For ease of reference, we refer to the plaintiff property owners
collectively as the Intlekofers.
                                         3


remediation business. The water wicked up the wall from six inches to four feet in

height, according to Stephen Intlekofer’s deposition testimony. The Intlekofers

replaced the damaged drywall and cabinets. But the Intlekofers alleged they could

not stop the influx of the water despite digging out the west wall and spraying foam

below the water line. The Intlekofers believed the construction projects by the City

and Reitberry obstructed the flow of water away from the building.

       In May 2017, the Intlekofers sued the City for negligently causing water

runoff damage. In August 2017, they filed an amended petition joining Reitberry

as a defendant.

       To prepare for trial, the City retained Timothy Crabb as an expert witness.

Crabb is a building inspector and housing rehabilitation specialist employed by the

State of Michigan. Crabb inspected the Intlekofers’ building to assess any damage

and potential causes for that damage. Crabb observed “no evidence of water

infiltration.” His inspection report also proffered theories for what may have caused

the water damage alleged by the Intlekofers. Those theories included a lack of

gutters; cracks between the lower walls that were caulked or covered with spray

foam, which is not a water-proofing product; and a leaking sink surrounded by

water-damaged stripping.

       By contrast, the Intlekofers did not designate or retain an expert witness to

testify on the topographical changes and the corresponding impact on the water

flow, nor to rebut the opinions from Crabb’s inspection.

       In October 2018, Reitberry moved for summary judgment, asserting the

Intlekofers missed the deadline for designating an expert witness on causation.

The City joined Reitberry’s motion.      The Intlekofers resisted, arguing “[i]t is
                                           4


common knowledge that water flows downhill, not uphill.              An expert is not

necessary to establish such elemental propositions.”

       A month later, the district court granted summary judgment, finding an

expert witness was required and the Intlekofers failed to designate one by the

deadline. The district court dismissed with prejudice all claims against Reitberry,

as well as all claims for water damages against the City.2 The Intlekofers appeal

the grant of summary judgment.

II.    Scope and Standard of Review

       We review the grant of summary judgment for correction of legal error. Linn

v. Montgomery, 903 N.W.2d 337, 342 (Iowa 2017) (citing Pillsbury Co. v. Wells

Dairy, Inc., 752 N.W.2d 430, 434 (Iowa 2008)). Summary judgment is proper if the

record reveals no genuine issue of any material fact, entitling the moving party to

judgment as a matter of law. Iowa R. Civ. P. 1.981(3). “A fact is material when its

determination might affect the outcome of a suit.” Linn, 903 N.W.2d at 342. When

reasonable minds can differ on resolving a factual question, a genuine issue of

material fact exists. Id. Thus, our review is limited to the existence of such a

genuine issue of material fact and if the district court correctly applied the law. Id.

       We review the evidence in the light most favorable to the non-moving party.

Id. In evaluating summary judgment, we consider the “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits,” to

determine whether a genuine issue of material fact exists. Iowa R. Civ. P. 1.981(3).




2
  The district court set all remaining claims against the City for trial. The Intlekofers
voluntarily dismissed those claims, removing the case from the trial calendar in November
2018.
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The Intlekofers, “as the nonmoving party, ‘cannot rely on the mere assertions in

his pleadings but must come forward with evidence to demonstrate that a genuine

issue of fact is presented.’” Linn, 903 N.W.2d at 342 (quoting Stevens v. Iowa

Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007)).

III.   Analysis

       The Intlekofers blame the City’s elevation of its new parking lot and

Reitberry’s construction of a sidewalk and curb for changing the water flow onto

their property. The Intlekofers allege the City and Reitberry’s negligence damaged

the building. On appeal, the Intlekofers fault the district court for requiring them to

line up expert testimony to prove the defendants’ projects caused the water

incursion.

       To be actionable, a claim of negligence must satisfy four elements:

(1) existence of a duty, (2) failure to conform to that duty, (3) causation, and

(4) damages. Stotts v. Eveleth, 688 N.W.2d 803, 807 (Iowa 2004). This summary-

judgment appeal focuses on the third element—causation. In place of the two-

pronged causation test (cause in fact and proximate cause), we now decide

whether the alleged harm resulted from risks within the defendants’ scope of

liability. See Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009). Under

that formulation, the Intlekofers must show but for the defendants’ wrongful

conduct, they would not have incurred water damage. See id. at 838.

       The Intlekofers rely on Garr v. City of Ottumwa for their position that plaintiffs

do not always need expert testimony to establish causation. 846 N.W.2d 865, 870

(Iowa 2014). True enough, that general proposition prevails when the subject

matter is “within the common experience of laypersons.” Id. at 872 (quoting Estate
                                          6

of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 83 (Iowa 2002)). It

is even possible to proceed without an expert when “‘under the evidence and facts

of common knowledge plaintiff’s theory is reasonably probable, not merely

possible, and more probable than any other theory based thereon.’” Doe v. Central

Iowa Health Sys., 766 N.W.2d 787, 793 (Iowa 2009) (quoting Stickleman v.

Synhorst, 52 N.W.2d 504, 507–08 (Iowa 1952) (finding an expert was not required

to establish causation when a physician incorrectly inserted a needle into patient’s

throat causing profuse bleeding)).      But on the flipside, when the connection

between the defendant’s negligence and the plaintiff's harm is outside a

layperson’s common knowledge and experience, “the plaintiff needs expert

testimony to create a jury question on causation.” Id. at 793. In Garr itself, the

court found “establishing a causal link between the topographical changes and

flooding requires expert testimony.” 846 N.W.2d at 872.

       Faced with that precedent, the Intlekofers contend Garr is “factually

distinguishable from the present case” given the scale of land and rainwater

involved. As they point out, Garr involved a watershed of more than 2000 acres

(rather than an alley) and a 100-year-flood event (rather than normal rainfall). In

the Intlekofers’ less complex scenario, they insist the defendants’ construction

projects obstructed the downhill flow of water. In the Intlekofers’ view, “no expert

witness is needed to attest to this law of nature.”

       The City and Reitberry reject the notion that the Intlekofers can proceed

based only on claimed “common sense” assumptions about water flow. They

contend Garr does not allow a plaintiff to prove a negligence case involving this

kind of water intrusion on lay opinion alone “especially where, as here, a defense
                                            7


expert has identified multiple other sources of water intrusion into [the Intlekofers’]

building.”

       We agree with the defendants’ reading of Garr. While it may be within the

jury’s common knowledge and experience that “water flows downhill,” whether

changes in topography3 caused water damage to a nearby building is a technical

or scientific matter calling for an expert opinion. The Intlekofers’ theory, though

possible, is not—on the evidence presented—more probable than those the City

proffered. See Doe, 766 N.W.2d at 793. The City retained an expert who raised

alternative theories about the source of the water infiltration in the Intlekofers’

building. Under these circumstances, the Intlekofers needed to identify an expert

by the pretrial deadline to present an actionable negligence claim against the City

and Reitberry. Because the Intlekofers cannot, as a matter of law, prove an

element of their negligence claim, the district court properly rendered summary

judgment for the City and Reitberry. See Kubik v. Burk, 540 N.W.2d 60, 64 (Iowa

Ct. App. 1995) (finding summary judgment appropriate when expert testimony is

needed but unavailable).

       AFFIRMED.




3
  The dictionary defines topography as “the configuration of a surface including its relief
and the position of its natural and man-made features.” Topography, Webster’s Third New
International Dictionary 2411 (3d ed. 2002).
