
                        IN THE SUPREME COURT OF IOWA

                              No. 10 / 03-1807

                           Filed January 13, 2006


RICHARD C. SUMMY and CHRISTINE M. SUMMY,

      Appellees,

vs.

CITY OF DES MOINES, IOWA,

      Appellant.



      Appeal from  the  Iowa  District  Court  for  Polk  County,  Carla  T.
Schemmel, Judge.

      City  appeals  from  adverse  judgment  in  personal  injury   action.
AFFIRMED.

      Mark Godwin, Deputy City Attorney, Des Moines, for appellant.

      Edward M. (Ted) Spellman and Martin E. Spellman of Spellman, Spellman,
Spellman, Spellman, Kealhofer & Spellman, Perry, for appellees.

TERNUS, Justice.
      The appellee, Richard C. Summy, was seriously injured  during  a  golf
outing when he was struck by a golf  ball  hit  by  another  player.   Summy
successfully sued the owner of  the  golf  course,  appellant  City  of  Des
Moines. The City has appealed, alleging several grounds  for  reversal:  (1)
the district court erred when it eliminated all Des Moines  property  owners
from the  trial jury; (2) the court erred in submitting the case  under  the
theory the City failed to protect an invitee  from  the  harmful  act  of  a
third person rather than under the theory the  plaintiff  was  harmed  by  a
condition on the premises; (3) the court abused its discretion  in  refusing
to instruct the jury on sole proximate cause or to allow  the  defendant  to
discuss this concept in opening  statement;  and  (4)  the  court  erred  in
failing to direct a  verdict  on  the  grounds  the  City  was  immune  from
liability and the City owed the plaintiff no individual duty to protect  him
from the ordinary risks inherent in the game of golf.  Upon  our  review  of
the record and consideration of the arguments of the parties, we affirm.
      I.  Background Facts and Proceedings.
      On June 5, 2000, Summy was playing golf  at  the  City-owned  Waveland
Golf Course when he was struck in the eye with a golf ball.   Summy  was  on
the eighteenth fairway at the time.  The ball was hit from the  tee  on  the
first hole by another golfer,  Richard  Thomas.   Summy  sued  the  City,[1]
alleging it

      had designed, operated, and maintained the Waveland Golf Course in  an
      unreasonably dangerous condition in that a golfer engaging in  golfing
      activities on the 18th golf hole was at  unreasonable  risk  of  being
      struck by a golf ball struck by a golfer from the tee box of the first
      hole of the golf course.

The plaintiff alleged a number of  specific  ways  in  which  the  City  was
negligent.   The  City  answered,  raising  several  affirmative   defenses,
including comparative fault, sole proximate cause, and immunity  under  Iowa
Code chapter 670 (1999).
      Subsequently, the City filed a motion  for  summary  judgment  on  the
basis of the immunity granted in section 670.4(10) for  liability  based  on
the “issuance of a permit, inspection, investigation, or otherwise . . .  if
the damage is caused by a third party.”  Iowa Code §  670.4(10).   The  City
also asserted that it owed Summy no duty to protect him from  the  “ordinary
and ever present risks of the sport of golf.”  Relying on the  duty  imposed
on possessors of land by Restatement (Second) of Torts section  344  (1965),
the district court rejected the City’s argument that it owed no duty to  the
plaintiff.  The court also concluded the statutory immunity asserted by  the
City was not applicable.
      Prior to trial, the plaintiff filed  a  motion  to  limit  prospective
jurors to nonresidents of the City of Des  Moines  in  view  of  his  severe
injury and the potential for a high verdict against the City.  Although  the
court denied the plaintiff’s request to remove all  residents  of  the  City
from the jury panel, the court ruled that property owners in the City  would
be excused from the panel.  Immediately before trial,  the  City  challenged
the jury panel, arguing the removal of “all jurors who were property  owners
in the City of Des Moines” was “a  material  departure  from  the  statutory
requirements for drawing or returning a jury.”  This challenge was  rejected
by the trial court.
      The plaintiff also filed a motion in limine before  trial  asking  the
court to prohibit the defendant from mentioning or arguing that the  actions
or failure to act of the other golfer—Thomas—constituted a  proximate  cause
of the plaintiff’s injuries.  The  court  agreed  that  the  other  golfer’s
negligence was not at issue, noting that Thomas  was  not  a  party  to  the
lawsuit and sole proximate cause would not be an issue in the case.
      At trial Summy introduced evidence that the design of the golf  course
called for a  tree  barrier  between  the  first  and  eighteenth  fairways.
Although such a barrier had existed at one  time,  sixty  to  eighty  mature
trees in the area between these fairways died in the 1960s.  In  June  2000,
there were a few small trees between the first and eighteenth fairways,  but
according to the plaintiff’s witnesses these trees  were  not  a  sufficient
protective barrier.  Even one of the  City’s  witnesses  acknowledged  there
was a hazard in the area of fairway eighteen from being hit by  a  shot  off
tee number one.   Summy’s  experts  testified  that  the  two  fairways  had
overlapping areas of play and that it was absolutely foreseeable  that  golf
balls hit from the first tee would travel into the area where Summy was  hit
due to the overlapping playing areas and the lack  of  heavy  trees  between
the fairways.  The experts also identified several ways in which the  safety
in this area could have been improved.  In addition, evidence was  presented
that the  City  had  no  inspection  or  safety  program,  and  no  one  was
responsible for identifying hazards on the  course  so  protective  measures
could be implemented.
       The  record  also  contains  evidence  in  support  of   the   City’s
comparative fault defense.  At the time Summy was hit by the golf  ball,  he
was twenty feet from the rough in between the eighteenth and first  fairways
and approximately 150 yards from the white tee box of the number  one  hole.
Summy testified that he saw individuals warming up on the  number  one  tee,
but he focused his attention on his  golfing  partner  even  though  he  was
aware that a golfer could get hit by  balls  shot  from  adjacent  fairways.
Summy admitted that had he looked toward the number one tee when Thomas  was
teeing off, he could have seen Thomas swinging his club,  as  nothing  would
have blocked Summy’s view.  On  the  other  hand,  Summy  believed  that  if
Thomas had yelled “fore,” there was a possibility that Summy would have  had
time to react and prevent the injury.  Thomas  testified  that  he  did  not
yell “fore” when his shot veered into the eighteenth fairway because he  had
not noticed anyone in that location.
      The City made motions  for  directed  verdict  at  the  proper  times,
raising the same arguments made in its motion  for  summary  judgment.   The
trial court refused to grant a directed verdict to the defendant.
      The jury found both Summy and the  City  at  fault.   Summy  was  held
twenty-five percent at fault, and the City was  found  seventy-five  percent
at fault.  The trial court entered judgment for the  damages  found  by  the
jury, reduced by the plaintiff’s fault, and the City appealed.
      II.  Jury Selection.
      A.  Issue.  The City  renews  its  challenge  to  the  trial  jury  on
appeal.  The defendant claims the trial court ignored two  statutory  edicts
and a rule of civil procedure when it excused  Des  Moines  property  owners
from the jury panel.  See Iowa Code § 607A.3(7) (defining “panel” as  “those
jurors drawn or assigned for service to  a  courtroom,  judge,  or  trial”).
The  City  relies  on  Iowa  Code  section  624.11A,  which  specifies   the
circumstances under which a juror may be challenged  based  on  the  juror’s
taxpayer status, and on  Iowa  Code  section  607A.2,  which  prohibits  the
exclusion of persons from jury service based on the  person’s  “age  if  the
person is eighteen years of age or older, race, creed, color, sex,  national
origin, religion, economic  status,  physical  disability,  or  occupation.”
(Emphasis  added.)   Finally,  the  defendant  argues  Iowa  Rule  of  Civil
Procedure 1.915(6) sets forth the reasons  that  a  party  may  challenge  a
potential juror for cause and none of those reasons include  potential  bias
or prejudice.

      B.  Error preservation.  Because the plaintiff insists  the  defendant
did not preserve error on its challenge to the court’s  action  in  striking
property  owners  from  the  jury  panel,  our  analysis  begins  with  rule
1.915(4), which states:

      Before any juror is sworn, either party may challenge  the  panel,  in
      writing, distinctly specifying the grounds, which can be founded  only
      on a material departure from the statutory requirements for drawing or
      returning the jury.

Iowa R. Civ. P. 1.915(4).  The plaintiff  claims  the  defendant  failed  to
comply with this rule in two particulars: (1) the City’s  written  objection
was not filed until after the jury  had  been  selected,  although  an  oral
objection had been made immediately before trial; and (2) the City’s  motion
did not identify the two statutes that the City now  claims  prohibited  the
exclusion of Des Moines property owners from the jury panel.
      We think rule 1.915(4) does not apply to the City’s objections.   That
rule states a challenge to the panel “can be  founded  only  on  a  material
departure from the requirements for drawing or returning  the  jury.”   Iowa
R. Civ. P. 1.915(4) (emphasis added).  The  term  “drawing”  refers  to  the
procedure incident to the “actual  drawing  of  names  of  eligible  jurors”
from, for example, a jury wheel, and the  term  “returning”  refers  to  the
procedure followed to summon into court the jurors  drawn.   See  People  v.
Hetenyi, 235 N.Y.S.2d  164,  166  (Monroe  County  Ct.  1949)  (interpreting
similar New York  rule).   See  generally  Iowa  Code  ch.  607A  (outlining
procedures for drawing and returning a jury).   The  City  has  not  claimed
noncompliance with the procedural requirements set  forth  in  chapter  607A
for drawing and returning the jury.  Cf. State v. Morgan,  559  N.W.2d  603,
610 (Iowa 1997) (defendant contended the method by which the jury  list  was
compiled failed to follow the  “random  selection”  requirement  of  section
607A.10); State v. Lohr, 266 N.W.2d 1,  2  (Iowa  1978)  (defendant  claimed
noncompliance with statutorily prescribed  procedure  for  drawing  of  list
from which defendant’s trial  jury  was  ultimately  chosen).   Rather,  the
defendant’s challenge is to the method of selecting the trial jury,  namely,
granting the plaintiff’s challenge for cause to all  city  property  owners.
Consequently, the special requirement of  a  writing  distinctly  specifying
the grounds for an objection to the drawing and returning of the jury  panel
does not apply.
      The City’s objection was clearly sufficient under  our  regular  error
preservation rules, which require a party to alert the  district  court  “to
an issue at a time when corrective action can be taken.”  Top  of  Iowa  Co-
op. v. Sime Farms, Inc., 608  N.W.2d  454,  470  (Iowa  2000).   Immediately
prior to trial, the defendant objected  to  the  court’s  exclusion  of  Des
Moines property owners from the jury panel.  This objection  was  sufficient
to alert the court to the error that the defendant now raises on  appeal  at
a time when the court could have corrected its prior ruling.   Certainly  it
would have been helpful to the trial court had the City provided that  court
with the same legal authorities in support  of  its  position  that  it  has
brought to the attention of this court on appeal.  Error  preservation  does
not turn, however, on the thoroughness of counsel’s  research  and  briefing
so long as the nature of the error has been timely brought to the  attention
of the district court.
      C.  Merits.  Having  determined  that  error  was  preserved,  we  now
consider whether the trial court erred in excusing all Des  Moines  property
owners from the jury panel.  We conclude it did.
      Prior to 1984, this court had routinely held that “when an  action  in
tort is brought against a municipality . . .  [the]  plaintiff  may  .  .  .
effectively challenge any members of the jury panel  who  are  taxpayers  in
the defendant municipality.”  Beyer v. City of Dubuque, 258 Iowa  476,  486,
139 N.W.2d 428, 435 (1966); accord Lang v. City of Des  Moines,  294  N.W.2d
557, 564 (Iowa 1980) (declining  “to  retreat  from  past  approval  of  the
exclusion of property taxpayers from juries deciding civil actions in  which
their cities are named defendants”); Alber v.  City  of  Dubuque,  251  Iowa
354, 363, 101 N.W.2d 185, 190 (1960) (“Throughout the history of  the  state
it has been customary that where a claim  for  damages  is  made  against  a
city, property owners in the city are disqualified  as  jurors.”).   But  in
1984 the Iowa legislature enacted Iowa Code section 624.11A, which reads:

            When selecting a jury in a trial in which a  municipality  is  a
      defendant, a juror challenge based on the potential juror’s status  as
      a taxpayer of that municipality shall not be allowed  unless  a  real,
      substantial, and immediate interest  is  shown  which  would  unfairly
      prejudice the plaintiff.

Iowa Code § 624.11A (emphasis added).
      The plaintiff argues this provision merely codified  the  longstanding
body of Iowa case law that  allowed  a  challenge  to  a  juror  based  upon
taxpayer status.  He claims  he  made  the  required  showing  of  a  “real,
substantial, and immediate interest . . .  which  would  unfairly  prejudice
the plaintiff” due to the severe nature of his injury—the loss of  his  eye.
Summy contends that because a significant verdict  was  likely  and  because
such a verdict would result in substantially higher taxes,  all  Des  Moines
property owners would have a personal interest  adverse  to  the  plaintiff.
The  City  responds  that  the  point  of  the  statute  was  to  require  a
demonstration of bias on the part of each juror sought to be  excluded.   We
agree.  The legislature, rather than codifying existing case  law,  rejected
that law by clearly stating that such challenges were not permitted,  unless
certain requirements were met.
      In this case, the court failed to follow section  624.11A  because  it
did not require the plaintiff to show a  real,  substantial,  and  immediate
interest of the rejected jurors,[2] but rather  excused  all  city  property
owners from the trial jury based simply on their status as taxpayers.   This
error in applying section 624.11A was an abuse of  discretion.   See  Graber
v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000) (“An abuse of  discretion
occurs when ‘the court  exercise[s]  [its]  discretion  on  grounds  or  for
reasons clearly untenable or to an extent clearly unreasonable.’   A  ground
or reason is untenable when it is not supported by substantial  evidence  or
when it is based  on  an  erroneous  application  of  the  law.”   (Citation
omitted.)).  We now turn to the question of prejudice.[3]
      D.  Prejudice.  Prejudice from the  erroneous  exclusion  of  a  juror
will not be presumed.  See Alber,  251  Iowa  at  363,  101  N.W.2d  at  190
(refusing to reverse based on trial  court’s  disqualification  of  property
owners from jury based, in  part,  on  objecting  party’s  failure  to  show
prejudice); cf. State  v.  Hartsfield,  681  N.W.2d  626,  633  (Iowa  2004)
(“Instructional error is not reversible error unless there is  prejudice.”);
Bauer  v.  Cole,  467  N.W.2d  221,  225  (Iowa  1991)  (stating   erroneous
evidentiary ruling “is not reversible error in the absence  of  prejudice”).
Rather, a party claiming prejudice must establish that  the  resulting  jury
was not impartial and competent.[4]  See Johnson v. City  of  Waterloo,  140
Iowa 670, 672, 119 N.W. 70, 71 (1909); accord 47 Am. Jur. 2d Jury § 185,  at
868-69 (1995).  As this court explained in Johnson,

      The defendant had no right to a trial before any particular  juror  or
      jury.  All it could insist upon was a competent  and  impartial  jury,
      and, as the record does not affirmatively show that it  exhausted  the
      peremptory challenges to which it was entitled, the jurors before whom
      the cause was tried are presumed to have been acceptable to  it.   The
      erroneous overruling of a  challenge  for  cause  may  result  in  the
      retention of an objectionable juror.  But this will, rarely, if  ever,
      happen because of the rejection of  a  competent  juror.  .  .  .   In
      states, where, as in this, the right to trial  before  any  particular
      juror or jury is denied, the  ruling  by  which  a  juror  is  excused
      without good cause is not reviewable on appeal, unless it also is made
      to appear from the record that this  has  resulted  in  the  trial  of
      issues before a partial or incompetent  jury.   The  theory  of  these
      decisions is that,  though  a  qualified  juror  be  excused,  another
      equally competent and fair minded will be selected in his stead,  and,
      if a competent and impartial jury is finally secured before  whom  the
      cause is tried, neither party is in a situation to complain.

140 Iowa at  671-72,  119  N.W.  at  71  (citations  omitted).   This  court
concluded in Johnson that the trial court’s erroneous exclusion of  resident
taxpayers from the jury panel did not result in prejudice because there  was
no showing the resulting jury was not impartial.  Id.
      The same result is warranted here.  The  City  has  not  demonstrated,
nor even claimed, that the trial court’s error forced the City to  leave  an
objectionable juror on the jury.  In the  absence  of  such  a  showing,  we
cannot find prejudice.   Therefore,  the  trial  court’s  exclusion  of  Des
Moines property owners from the jury, while an abuse of discretion, did  not
result in reversible error.
      III.  Jury Instructions on Liability Theory.
      The defendant objected to the court’s  instruction  based  on  section
344 of the  Restatement  (Second)  of  Torts,  concerning  liability  for  a
failure to prevent harm caused by a third party.   The  City  contended  the
jury should have been instructed on the premises liability theory  contained
in the Iowa State Bar Association’s Civil Jury Instructions Nos.  900.1  and
900.5, which are based on Restatement (Second) of  Torts  sections  343  and
343A.  These  latter  Restatement  provisions  address  liability  for  harm
caused by conditions on the land.  The City’s argument is  essentially  that
the plaintiff pled and sought to prove a section 343 or  section  343A  case
because he and his experts criticized the condition of the golf course,  yet
the court instructed under a theory the defendant had failed to protect  the
plaintiff from the wrongful conduct of a third party.
      We review a claim that the court gave  an  instruction  that  was  not
supported by the evidence for correction of errors of  law.   See  State  v.
Piper, 663 N.W.2d 894, 914 (Iowa 2003).  We review the  related  claim  that
the trial court should have given  the  defendant’s  requested  instructions
for an abuse of discretion.  See Anderson v.  State,  692  N.W.2d  360,  363
(Iowa 2005).  “Under Iowa law, a court  is  required  to  give  a  requested
instruction when it states a correct rule of law having application  to  the
facts of the case and when the concept is not otherwise  embodied  in  other
instructions.”  Herbst v. State, 616 N.W.2d 582, 585 (Iowa  2000)  (emphasis
added).
      For the reasons that follow, we think the court  correctly  instructed
the jury on the duty  set  forth  in  section  344.   As  we  also  explain,
sections 343 and 343A have no application to the facts of this case, so  the
court did not  abuse  its  discretion  in  refusing  to  instruct  on  those
theories.
      Section 344 of the Restatement provides:

      A possessor of land who holds it open to the public for entry for  his
      business purposes is subject to liability to  members  of  the  public
      while they are upon the land for such a  purpose,  for  physical  harm
      caused by the accidental, negligent, or intentionally harmful acts  of
      third persons or animals, and by  the  failure  of  the  possessor  to
      exercise reasonable care to
            (a) discover that such acts are being done or are likely  to  be
      done, or
            (b) give a warning adequate to enable the visitors to avoid  the
      harm, or otherwise to protect them against it.

Restatement (Second) of Torts § 344 (emphasis added).  In contrast,  section
343 concerns the liability of a possessor of land “for physical harm  caused
to his invitees by a condition on the land” if the possessor

            (a) knows or by the exercise of reasonable care  would  discover
      the condition, and should realize that  it  involves  an  unreasonable
      risk of harm to such invitees, and
            (b) should expect that they will not  discover  or  realize  the
      danger, or will fail to protect themselves against it, and
            (c) fails to exercise reasonable care to  protect  them  against
      the danger.

Restatement (Second) of Torts § 343 (emphasis  added).   Section  343A  sets
forth specific rules governing “physical harm caused to  [invitees]  by  any
activity or condition on the land  whose  danger  is  known  or  obvious  to
them.”  Restatement (Second) of Torts §  343A.   As  the  wording  of  these
provisions indicates, section 344 generally applies to  injuries  caused  by
third parties, whereas section 343 governs injuries caused  by  a  condition
on the land, and section 343A governs injuries  caused  by  an  activity  or
condition on the land.  See Young v.  Gregg,  480  N.W.2d  75,  78-79  (Iowa
1992) (distinguishing  Restatement  premises  liability  theories  based  on
direct cause of injury); see also Morgan v. Perlowski, 508 N.W.2d  724,  727
(Iowa 1993) (refusing to apply principles governing liability  of  possessor
of land for harm caused by conditions or activities  on  the  land  in  case
involving landowner’s failure to protect guest from harm by another  guest).

      A review of the  record  shows  the  gist  of  the  plaintiff’s  claim
against the defendant was that the City, as owner and operator of  the  golf
course, had a duty to its business invitee, Summy,  to  exercise  reasonable
care to protect Summy from physical  harm  caused  by  other  golfers.   The
plaintiff  introduced  evidence  that  the  defendant  failed  to   exercise
reasonable care because there were several ways in which golfers could  have
been protected from other golfers’ errant shots by  making  changes  in  the
golf course  in  the  area  of  the  first  and  eighteenth  fairways.   The
plaintiff never claimed that he was injured by  a  condition  on  the  land,
only that the condition of the  land  was  such  that  it  did  not  protect
against injuries caused by third parties.
      We think this evidence supports the instruction  given  by  the  court
since the cause of the  plaintiff’s  injury  was  the  conduct  of  a  third
person, against  which  the  plaintiff  claimed  the  defendant  could  have
protected him. The fact that some of the protective steps  that  could  have
been taken by the City involved changes to the  condition  of  the  premises
did  not  make  this  a  section  343  or  section  343A  case.   All  three
Restatement provisions address the liability of the possessor  of  land,  so
it is not surprising that the conduct of the defendant with respect  to  its
management and care of the premises would  be  relevant  to  each  of  these
theories.  We conclude, therefore, that the  trial  court  did  not  err  in
submitting this case on the theory set forth in section  344,  and  likewise
did not abuse its discretion in refusing to instruct under sections 343  and
343A.
      IV.  Sole Proximate Cause.
      The defendant asserts the trial court abused  its  discretion  (1)  in
refusing to allow the City to inform the jury in its opening statement  that
Thomas was the sole proximate cause of the plaintiff’s injury,  and  (2)  in
refusing to give an instruction on  sole  proximate  cause.   We  think  the
trial court correctly concluded that this  concept  was  not  applicable  in
this case.
      “Sole proximate cause means the only  proximate  cause.”   Johnson  v.
Interstate Power Co., 481 N.W.2d 310, 323 (Iowa 1992).   It  “rests  on  the
notion that some third party or other independent event was the  sole  cause
of the plaintiff’s injuries.”  Baker v. City of  Ottumwa,  560  N.W.2d  578,
583 (Iowa 1997) (emphasis added); accord Sponsler  v.  Clarke  Elec.  Coop.,
Inc., 329  N.W.2d  663,  665  (Iowa  1983)  (stating  sole  proximate  cause
“introduces an issue of a third party’s conduct or  a  separate  event  into
the case”); Seide v. State, 875 A.2d 1259, 1270 (R.I. 2005) (“  ‘Intervening
cause exists when an independent and unforeseeable intervening or  secondary
act of negligence occurs, after the  alleged  tortfeasor’s  negligence,  and
that secondary act becomes the  sole  proximate  cause  of  the  plaintiff’s
injuries.’ ”  (Emphasis added and citation omitted.)).  In  this  sense,  it
is used as an alternative label for  superseding  cause.[5]   See  State  v.
Marti, 290 N.W.2d 570, 585 (Iowa 1980) (stating a finding that an act is  an
intervening, superseding cause is, in effect, a finding  that  the  act  was
the sole proximate cause); see also Restatement (Third) of Torts:  Liability
for Physical Harm § 34 cmt. f (Proposed Final  Draft  No.  1  2005)  (noting
“[t]he most common usage of sole proximate cause is  as  an  alternative  to
superseding cause”).  Under the circumstances  of  this  case,  the  alleged
sole proximate cause—Thomas’s negligent act[6]—is also an intervening  cause
because it is an event that occurred after  the  defendant’s  negligence  to
actively produce the harm to the plaintiff.  See Estate  of  Long   ex  rel.
Smith v. Broadlawns Med. Ctr., 656 N.W.2d  71,  84  (Iowa  2002);  see  also
Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819,  830  (Iowa  2000)  (“  ‘
“Intervening” is used in a  time  sense;  it  refers  to  later  events.’  ”
(Citation omitted.)).
      Whether  this  intervening  cause  could  be  a  superseding  or  sole
proximate cause of Summy’s injuries is answered by the  following  principle
of law from the Restatement (Second) of Torts:

      If the likelihood that a third person may act in a  particular  manner
      is the hazard or one of the hazards which makes the  actor  negligent,
      such an act whether innocent, negligent,  intentionally  tortious,  or
      criminal does not prevent the actor from being liable for harm  caused
      thereby.

Restatement (Second) of Torts § 449; see also Weyerhaeuser Co.,  620  N.W.2d
at  830  (holding  foreseeable  intervening  force  is   within   scope   of
defendant’s negligence and will not relieve defendant of liability);  Rieger
v. Jacque, 584 N.W.2d 247, 251-52 (Iowa 1998) (same).  Under this rule,  the
concept of sole proximate cause is incompatible with a theory  of  liability
based on Restatement (Second) of Torts section 344 when the third party  who
inflicted the harm is  alleged  to  be  the  sole  proximate  cause  of  the
plaintiff’s injury.  That is because section 344 liability is based  on  the
defendant’s failure to protect the plaintiff from the  harm  caused  by  the
third party, whether the third party was negligent or  not.   A  comment  to
the Restatement explains:

      The happening of the very event the  likelihood  of  which  makes  the
      actor’s conduct negligent and  so  subjects  the  actor  to  liability
      cannot relieve him from liability.   The duty to refrain from the  act
      committed or to do the act omitted is imposed  to  protect  the  other
      from this very danger.  To deny recovery because the other’s  exposure
      to the very risk from which it was the purpose of the duty to  protect
      him resulted in harm to him, would be to  deprive  the  other  of  all
      protection and to make the duty a nullity.

Restatement (Second) of Torts § 449  cmt.  b.   A  section  344  case  falls
squarely within the rule stated in section 449, as that  rule  is  explained
in this comment.
      Turning then to the present case, we note that Thomas’s negligence  is
one of the hazards against which the City had a duty to use reasonable  care
to protect the plaintiff.  Therefore, Thomas’s  act  does  not  prevent  the
City from being liable for the resulting harm.  See Restatement (Second)  of
Torts § 449 & cmt. b.  Accordingly, Thomas’s intervening act  cannot,  as  a
matter of law, be the sole proximate cause of the plaintiff’s  injury.   See
Estate of Long, 656  N.W.2d  at  85  (affirming  trial  court’s  refusal  to
instruct on  sole  proximate  cause  in  case  submitted  under  Restatement
(Second) of Torts section 323 (liability based on failure to render  service
necessary for the protection of another) because the intervening force  fell
“ ‘squarely within the scope of the original risk’  ”  (citation  omitted));
see also Ontario Sewing Mach. Co. v. Smith, 572 S.E.2d 533, 536  (Ga.  2002)
(“[F]or an intervening act of a third party to  become  the  sole  proximate
cause of a plaintiff’s injuries, the intervening  act  must  not  have  been
‘foreseeable by defendant . . . .’ ”); Contois v. Town of West Warwick,  865
A.2d 1019, 1027 (R.I. 2004) (same).
      For this reason, the trial court  did  not  abuse  its  discretion  by
refusing to  instruct  the  jury  on  the  defendant’s  sole-proximate-cause
defense.  See Herbst, 616 N.W.2d at 585 (stating court must  give  requested
instruction only “when it states a correct rule of  law  having  application
to the facts of the case” (emphasis added)).  Likewise, the  court  did  not
abuse its discretion in prohibiting the City from  stating  in  its  opening
statement that Thomas’s negligence was the sole  cause  of  the  plaintiff’s
injuries.  See State v. Miller, 359 N.W.2d 508, 510  (Iowa  Ct.  App.  1984)
(stating scope and extent of opening statement rests  within  discretion  of
trial court).
      V.  Directed Verdict.
      The City requested a directed  verdict  on  several  grounds,  two  of
which it asserts on appeal were sufficient  to  warrant  a  verdict  in  its
favor as a matter of law.  We review a trial court’s ruling on a motion  for
directed verdict for the correction of errors of  law.   Bellville  v.  Farm
Bureau Mut. Ins. Co., 702 N.W.2d 468, 473 (Iowa 2005).
      A.  Immunity.  The defendant moved  for  a  directed  verdict  on  the
basis it was immune pursuant to Iowa Code section 670.4(10), which  provides
for the immunity of a municipality on any claim

      based upon an act or  omission  of  an  officer  or  employee  of  the
      municipality,   whether   by   issuance   of    permit,    inspection,
      investigation, or otherwise, and whether the  statute,  ordinance,  or
      regulation is valid, if the damage was caused by a third party, event,
      or property not under the supervision or control of the  municipality,
      unless the act or omission of  the  officer  or  employee  constitutes
      actual malice or a criminal offense.

Iowa Code § 670.4(10).  On the day in question,  Thomas  was  playing  on  a
pass issued to his employer.  The City argues the pass is akin to a  license
or permit and thus within the contemplation of section  670.4(10).   Because
Thomas was not under the supervision or control of the defendant,  the  City
reasons it is immune under subsection (10) from a claim for  damages  caused
by Thomas.
      This court has  previously  interpreted  section  670.4(10)  to  grant
immunity only when the claim  against  the  municipality  is  based  on  the
issuance of a permit, an inspection, an investigation, or similar  municipal
action.  Messerschmidt v. City of Sioux City,  654  N.W.2d  879,  884  (Iowa
2002).  Even if we accept the City’s argument that its action in  issuing  a
golfing pass to Thomas’s employer is similar to the issuance  of  a  permit,
we do not think the plaintiff’s claim against the City  was  based  on  this
action by the defendant.   The  plaintiff’s  claim  does  not  rest  on  any
negligence by the City in letting Thomas play golf  on  city  property  that
day.  The plaintiff’s claim is premised on the  City’s  failure  to  protect
the plaintiff from the foreseeable hazard of  an  errant  golf  shot.   This
claimed negligence by the City is not  remotely  similar  to  the  municipal
actions  encompassed  in  section  670.4(10).   Consequently,  the  immunity
granted in that section does  not  apply,  and  the  trial  court  correctly
refused to grant a directed verdict on the basis of statutory immunity.
      B.  Duty.  The defendant also based its motion  for  directed  verdict
on the assertion it had no duty to Summy to protect him  from  the  ordinary
risks inherent in the game of golf.  While section 344  does  not  make  the
owner or operator of a golf course an insurer of players’  safety,  it  does
require that the possessor of  land  exercise  reasonable  care  to  protect
players from certain  risks  under  specified  circumstances.   As  we  have
previously discussed, Summy’s lawsuit was based on  the  City’s  failure  to
take the ordinary precautions a reasonable golf  course  owner  or  operator
would take.  This  claim  falls  within  the  duty  of  possessors  of  land
recognized in section 344.
      The City also relies on the public duty doctrine:  if  the  government
owes a duty  to  the  general  public,  it  has  no  liability  to  any  one
individual when it fails to perform this public duty. See  Kolbe  v.  State,
625 N.W.2d 721,  729  (Iowa  2001).   This  doctrine  is  inapplicable  here
because the City’s duty was one owed to invitees on the golf course, not  to
the public at large.  See id. (stating doctrine does not apply if  there  is
a particular relationship between the governmental entity  and  the  injured
plaintiff that gives rise to a special duty).  We conclude, therefore,  that
the trial court did not err in refusing to direct a verdict in favor of  the
City.
      VI.  Summary and Disposition.
      The district court abused its discretion in excluding property  owners
in the City  of  Des  Moines  from  the  trial  jury  without  requiring  an
individualized  showing  of  bias.   The  defendant  did  not   demonstrate,
however, that this error resulted in prejudice.  The  trial  court  properly
submitted this case to the jury on  the  basis  of  the  City’s  failure  to
exercise reasonable care to protect invitees from the harmful acts of  third
parties, as set forth in section 344 of the Restatement (Second)  of  Torts.
In addition, the court  correctly  determined  that  the  doctrine  of  sole
proximate cause was not applicable.  Finally, the trial court  did  not  err
in denying the City’s motion for a directed  verdict  because,  contrary  to
the City’s arguments, the City owed a duty to the  plaintiff  under  section
344, this duty did not fall within the public-duty doctrine,  and  the  City
was not immune under section 670.4(10).  Finding  no  reversible  error,  we
affirm.
      AFFIRMED.
      All justices concur except Cady, J., who dissents,  and  Wiggins,  J.,
who takes no part.
                               #10/03-1807, Summy v. City of Des Moines
CADY, J. (dissenting).
      I respectfully dissent from the conclusion by the  majority  that  the
district court’s systematic exclusion  of  property  owners  from  the  jury
panel did not  constitute  reversible  error.   The  majority  reached  this
conclusion by applying  the  incorrect  standard,  requiring  a  showing  of
prejudice, resulting in a  decision  that  seriously  undermines  the  basic
democratic ideals responsible for the strength of, and  confidence  in,  our
American jury system.
      I acknowledge that courts normally apply  the  prejudice  standard  to
decide if defects and errors in the jury-selection process  will  support  a
reversal of the judgment.  This standard, applied by the  majority  in  this
case, requires that error in the selection of the jury must  be  accompanied
by a showing of prejudice to the challenging litigant in order to justify  a
reversal of the judgment.  It recognizes the right of  each  litigant  to  a
fair and impartial jury, and, based upon this  right,  properly  requires  a
showing that the litigant was deprived of a fair and impartial jury  due  to
the error.  In other words, if the jury  members  ultimately  selected  were
fair and impartial despite the error, then the error in selecting  the  jury
was harmless.
      While the landscape of the law is dominated by the primary  colors  of
general principles, subtle shades of exceptions must be  observed  to  fully
depict the overall brilliance of the composite of justice.   In  this  case,
this essential shading is found in  one  of  the  fundamental  hues  of  our
American  jury  system—an  impartial  jury  from  a  cross-section  of   the
community.  See Ballard v. United States, 329 U.S. 187, 195, 67 S. Ct.  261,
265, 91 L. Ed. 181, 186-87  (1946).   When  this  pillar  is  systematically
removed by those charged  with  the  responsibility  to  oversee  the  jury-
selection process, the injury and prejudice to  an  individual  litigant  is
replaced by a greater injury not only to the jury  system  itself,  but  “to
the law as an institution, to the community at large, and to the  democratic
ideal reflected in the processes of our courts.”  Id. at 195, 67 S.  Ct.  at
265, 91 L. Ed. at 187.  “The evil lies  in  the  admitted  exclusion  of  an
eligible class or group in the community  in  disregard  of  the  prescribed
standards of jury selection.”  Id.
      Such  action  by  the  court  “‘destroy[s]  the  basic  democracy  and
classlessness of jury personnel,’” fails to give a litigant  “‘the  type  of
jury to which the law entitles  him,’”  and  deprives  litigants  “‘a  right
which the lawmakers have not seen fit to withhold.’”   Id.  (quoting  United
States v. Roemig, 52 F. Supp. 857, 862 (N.D. Iowa 1943)).  The gist  of  the
problem was succinctly stated by the United States Supreme  Court  in  Thiel
v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984,  90  L.  Ed.  2d  1181
(1946):

           The  American  tradition  of  trial  by  jury,   considered   in
      connection with either  criminal  or  civil  proceedings,  necessarily
      contemplates an impartial jury  drawn  from  a  cross-section  of  the
      community.  This does not  mean,  of  course,  that  every  jury  must
      contain  representatives  of  all  the  economic,  social,  religious,
      racial, political and geographical groups of the community; frequently
      such complete representation would be impossible.  But  it  does  mean
      that prospective jurors shall be selected by court  officials  without
      systematic  and  intentional  exclusion  of  any  of   these   groups.
      Recognition must be given to the fact that  those  eligible  for  jury
      service are to be found in every stratum of society.  Jury  competence
      is an individual rather than a group or class matter.  That fact  lies
      at the very heart of the jury system.  To disregard it is to open  the
      door to class distinctions and discriminations which are abhorrent  to
      the democratic ideals of trial by jury

Thiel, 328 U.S. at  220,  66  S.  Ct.  at  985-86,  90  L.  Ed.  at  1184-85
(citations omitted).
      Our legislature has established those groups of  individuals  who  are
eligible for jury service, and it has even specifically  provided  that  any
challenge to a potential juror’s status as a taxpayer must  be  made  during
voir dire based upon a specific finding  of  unfair  prejudice.   Iowa  Code
§ 624.11A.  It is not the role of courts to  depart  from  this  legislative
standard and systematically  remove  groups  from  the  community  that  our
legislature has seen fit to include.  That is  a  clear  abuse  of  judicial
authority, inflicted on a critical component of our system of  justice,  and
it requires that we look beyond the general rule to draw  out  an  exception
that “reversible error does not depend on  a  showing  of  prejudice  in  an
individual case.”  Ballard, 329 U.S. at 195, 67 S. Ct. at 265, 91 L. Ed.  at
186 (footnote omitted).
      The rule that should be applied in Iowa to  claims  of  error  in  the
selection of a jury is that such error will not result in a reversal of  the
judgment unless either individual prejudice  is  shown  or  there  has  been
intentional and systematic exclusion of a group  of  jurors.   This  is  the
rule followed by the United States Supreme Court,  as  well  as  many  state
courts.   See  id.;  see,  e.g.,  Alvarado  v.  State,  486  P.2d  891,  899
n.20 (Alaska 1971) (no showing of individual prejudice required); People  v.
Bell, 778 P.2d 129, 137 n.4 (Cal. 1989) (“A criminal defendant  who  asserts
a systematic exclusion of a cognizable class  of  prospective  jurors  in  a
pretrial challenge to the jury venire or panel need not show that his  trial
jury was underrepresentative.”); Wilkins v. State, 609 P.2d  309,  311 (Nev.
1980) (“[A]bsent either a showing of systematic,  class-based  exclusion  of
prospective jurors or  a  showing  of  prejudice,  an  irregularity  in  the
selection  of  jurors,  without  more,  must  be  deemed  harmless   error.”
(Emphasis added.)); State v. Strodes, 357  N.E.2d  375,  377-78 (Ohio  1976)
(“Unless prejudice to  the  defendant  or  the  systematic  and  intentional
exclusion of a group is shown, we will not reverse  a  judgment  because  of
minor  and  technical  defects  in  jury-selection  procedures.”   (Emphasis
added.)), vacated on other grounds, 438 U.S. 911, 98 S. Ct. 3135, 57 L.  Ed.
2d 1154 (1978).
      The  majority  rejects  this  approach  essentially  on  two  grounds.
First, it finds the no-prejudice rule inapposite to this  case  because  the
error here occurred after the jury panel was returned.  This, of course,  is
a distinction without a difference.  When a judge acts to remove a class  of
jurors from the jury panel, what possible difference would it  make  to  the
ideals we are trying to observe if  the  illegal  action  was  done  before,
during, or after the drawing and returning of the jury?  In  each  instance,
the evil inflicted  is  the  same,  and  it  is  equally  abhorrent  to  our
democratic ideals of a jury trial.  In each instance, the prejudice  is  the
same.  In each instance,  prejudice  is  inherent  in  the  illegal  act  of
preventing a party from  selecting  a  jury  from  a  panel  composed  of  a
representative class of people.
      Second, the majority relies on two of our  prior  cases  in  which  we
previously indicated that prejudice will not  be  presumed.   See  Alber  v.
City of Dubuque, 251 Iowa 354, 363, 101 N.W.2d 185, 191 (1960);  Johnson  v.
City of Waterloo, 140 Iowa 670, 671, 119 N.W. 70,  71  (1909).   Yet,  these
cases only express a general rule, and there is no indication we  have  ever
considered the question  from  the  perspective  expressed  in  Ballard  and
Thiel.  Additionally, the court in  Alber  applied  the  prejudice  standard
only after finding that it was a custom in this State to  exclude  taxpayers
in tort cases against a city; it was in the best interest  of  the  taxpayer
jurors to exclude them; and the decision to exclude jurors  was  within  the
discretion of the trial court.  See Alber, 251 Iowa at 363,  101  N.W.2d  at
190.  Thus, these cases have no significance today because there  is  now  a
statute governing the matter,  and  the  discussion  of  prejudice  was  not
subject to the scrutiny of the institutional injury.
      If we truly embrace our jury  system  in  this  State,  we  should  be
willing, indeed quick, to implement rules  to  protect  and  preserve  those
fundamental concepts responsible for its historical success.   Instead,  the
prejudice standard adopted in this case literally means  no  litigant  could
get relief from the illegal acts of a judge who  systematically  excludes  a
class of people from the jury as long as the jurors ultimately  selected  to
serve on the jury were found to be fair and impartial.  Yet, our rules  must
not just strive to achieve  fairness  and  impartiality  in  the  individual
jurors selected.  Under the majority’s rule, a  judge  could  systematically
exclude all women from the jury as long as the men selected  would  be  fair
and impartial.  This is a barbaric concept,  which  the  prejudice  standard
was never intended to sanction.  A  litigant  is  entitled  to  a  fair  and
impartial jury selected from a representative class  as  determined  by  our
legislature,  and  the  loss  of  this  fundamental  principle  through  the
improper actions of a trial  judge  and  the  implementation  of  an  overly
strict appellate standard can only lead to the erosion of the jury system.
      I would hold that the trial court error in this case  requires  a  new
trial without any showing of prejudice to the City.

-----------------------
      [1] Summy’s wife is also a plaintiff, but we refer to Summy alone  for
simplicity’s sake.
      [2] The record does not show how the court’s ruling  was  implemented.
Consequently, we do not know that the ruling actually caused  any  juror  to
be rejected.

      [3]  Having  concluded  the  trial  court  abused  its  discretion  in
excusing property owners from the trial  jury,  we  need  not  consider  the
other grounds upon which the City challenged the court’s action.
      [4] Because the error in this case  occurred  after  the  drawing  and
returning of the jury, as we decided in addressing  the  plaintiff’s  error-
preservation argument, cases that hold no prejudice need be shown  when  the
court inappropriately exercises its  supervisory  authority  over  the  jury
process are inapposite.
      [5] The City expends considerable effort in its  brief  detailing  the
evidence of Thomas’ s negligence, concluding this evidence supports a  sole-
proximate-cause instruction.  But proof that a third party’s negligence  was
a proximate cause of the plaintiff’s injury does not warrant submitting  the
defense of sole proximate cause.  There must be evidence from which  it  may
be concluded that the third party’s negligence was a  superseding  cause  of
the harm so as to make it the sole proximate cause of the harm.

      [6] There apparently was little dispute in this case that  Thomas  was
negligent.  Even though section 344 encompasses  “physical  harm  caused  by
the accidental, negligent, or intentionally harmful acts of third  persons,”
see Restatement (Second) of Torts § 344, the court’s instruction stated  the
owner or  operator  of  a  golf  course  had  “the  obligation  to  exercise
reasonable care to prevent  injuries  caused  by  the  negligence  of  third
persons.”  (Emphasis added.)

