                   IN THE SUPREME COURT OF IOWA
                               No. 13–0673

                           Filed June 13, 2014


BETH A. MADDEN,

      Plaintiff,
vs.

CITY OF IOWA CITY,

      Appellee,

and

STATE OF IOWA,

      Appellant.


      Appeal from the Iowa District Court for Johnson County, Ian K.

Thornhill, Judge.



      The State of Iowa seeks interlocutory review of a district court

order permitting the City of Iowa City’s cross-claim against the State.

AFFIRMED.


      Thomas J. Miller, Attorney General, Anne E. Updegraff and

Tyler M. Smith, Assistant Attorneys General, for appellant.



      Eric R. Goers, Assistant City Attorney, Iowa City, for appellee.
                                      2

APPEL, Justice.

      A bicyclist was riding on the sidewalk abutting the grounds of the

University of Iowa in Iowa City when she fell, sustaining an injury. The

bicyclist filed a negligence action against the City for failure to maintain

the sidewalk in a safe condition. The City moved to add the State of Iowa

as a third-party defendant, arguing that it had by ordinance imposed a

requirement on the abutting landowner to maintain the sidewalk and

that the ordinance was permitted under Iowa Code section 364.12(2)(c)

(2009).   The City’s motion was granted.      The City then filed a cross-

petition against the State alleging entitlement to contribution. The State

filed a motion to dismiss the City’s cross-petition. The district court later

denied the State’s motion to dismiss the City’s cross-claim. The State

filed a motion for interlocutory review, which was granted.         For the

reasons expressed below, we affirm.

      I. Background Facts and Proceedings.

      Beth Madden was riding her bicycle on a sidewalk abutting the

grounds of the University of Iowa in Iowa City. She lost control of her

bicycle, crashed, and sustained an injury. Madden filed suit against the

City, claiming that the City owned or had control over the sidewalk and

that a defect in the sidewalk caused the accident. She claimed the City

was negligent in failing to prevent or remedy the defect, in failing to warn

her of the defect, or in otherwise failing to exercise reasonable care in

maintaining the sidewalk.

      Because the university is publicly funded, the City moved to bring

in the State as a third-party defendant. In support of its motion, the City

cited its ordinance requiring an abutting property owner to maintain the

sidewalk in a safe condition and providing that “[t]he abutting property

owner may be liable for damages caused by failure to maintain the
                                     3

sidewalk.”    Iowa City, Iowa, Code § 16-1A-6 (current through Mar. 4,

2014), available at www.sterlingcodifiers.com/codebook/index.php?book

_id=953. The City maintained that the ordinance was authorized by Iowa

Code section 364.12(2)(c), which expressly authorizes cities to enact

ordinances requiring abutting landowners to maintain property between

the outside property line of the lot and inside the curb lines (which would

include sidewalks).      The City argues section 364.12(2)(c) does not

expressly authorize cities to impose liability for damages caused by the

failure of the abutting landowner to maintain the sidewalk. The district

court granted the motion, and the City filed a cross-claim against the

State.

         The State then filed a motion to dismiss the City’s cross-claim.

The State raised three arguments in support of the motion. First, the

State claimed Iowa Code section 364.12(2)(c) did not expressly waive

sovereign immunity and had the legislature intended to do so, it would

have done so expressly.      Second, the State argued the City’s cross-

petition did not allege a claim under the Iowa Tort Claims Act (ITCA),

Iowa Code chapter 669, because the cross-petition was based upon a

theory of statutory liability, not negligence and therefore immunity was

not waived. Third, the State asserted that to the extent the City sought

contribution from the State, the claim was fatally flawed because while

section 364.12(2)(c) imposes a duty on an abutting property owner to

maintain the sidewalk, it does not impose liability for failure to do so. In

a reply brief, the State further asserted the Iowa City ordinance making

the abutting landowner liable to the injured person for common law

damages “is in effect a tax that is not authorized by the Iowa legislature.”

         The district court denied the motion to dismiss concluding the

City’s contribution claim for money damages resulting from Madden’s
                                    4

personal injuries was not excluded from the ITCA and that the City’s

cross-petition adequately pled a claim under the ITCA. With respect to

whether the City’s cross-petition was based upon statutory liability, and

thus was not within the scope of the ITCA because it was not based upon

a negligence theory, the district court, pointing to Seeman v. Liberty

Mutual Insurance Co., 322 N.W.2d 35, 37 (Iowa 1982), concluded an

ordinance can establish a duty, the breach of which supports a

negligence claim. Further, the district court concluded the City had pled

a valid contribution claim. The district court reasoned that while section

364.12(2)(c) only expressly authorizes the City to require an abutting

property owner to maintain the sidewalk, the City’s ordinance imposing

liability permissibly set standards and requirements higher or more

stringent than provided in section 364.12(2) and no provision of the state

law provides otherwise.   Finally, the district court concluded the Iowa

City ordinance existed in harmony with the Iowa Code. The State sought

interlocutory appeal, which we granted.

      II. Standard of Review.

      The court reviews the denial of motions to dismiss for errors at law.

McGill v. Fish, 790 N.W.2d 113, 116 (Iowa 2010).

     III. Overview of Liability of Abutting Property Owner for
Sidewalk Defects.
      At common law, the general rule was that an abutting property

owner was not liable for an injury that resulted from a defective sidewalk.

See, e.g., Sexton v. Brooks, 245 P.2d 496, 498 (Cal. 1952); Mendoza v.

White Stores, Inc., 488 P.2d 90, 92 (Colo. App. 1971); Major v. Fraser, 368

P.2d 369, 370 (Nev. 1962); see also C. P. Jhong, Annotation, Liability of

Abutting Owner or Occupant for Condition of Sidewalk, 88 A.L.R.2d 331

§ 6[a], at 354–57, Supp. 32–34 (1963 and Later Case Service (2009))
                                       5

[hereinafter Jhong]; 2 Louis A. Lehr Jr., Premises Liability 3d § 36:18

(2013) [hereinafter Lehr], available at www.westlaw.com; 19 Eugene

McQuillin, The Law of Municipal Corporations § 54:67, at 232 (3d ed.

2004 rev. vol.). The general rule has sometimes been referred to as the

“Sidewalk Accident Decisions Doctrine.” Contreras v. Anderson, 69 Cal.

Rptr. 2d 69, 73 n.6 (Ct. App. 1997).

      There were two generally recognized exceptions to the common law

rule. First, where the owners of property abutting the public sidewalk

contributed to or caused the dangerous condition that was the proximate

cause of the injury, some courts found the abutting landowner liable.

See, e.g., Del Rio v. City of Hialeah, 904 So. 2d 484, 487 (Fla. Dist. Ct.

App. 2005) (involving city ordinance that “impose[d] upon the owner of

abutting property liability for injuries sustained by a pedestrian if the

abutting property owner contributed to or caused the dangerous

condition in the sidewalk which was the proximate cause of the

complained of injury”); Ward v. Frank’s Nursery & Crafts, Inc., 463

N.W.2d 442, 446 (Mich. Ct. App. 1990) (discussing landowner who

physically intruded on adjacent public way by casting debris upon it,

causing pedestrian’s slip and fall).       Second, liability could also be

imposed if the sidewalk in question was constructed in a special manner

for the benefit of the abutting landowner. See, e.g., Peretich v. City of

New York, 693 N.Y.S.2d 576, 578 (App. Div. 1999) (involving heavy use of

sidewalk by trucks making daily deliveries); Nickelsburg v. City of New

York, 34 N.Y.S.2d 1, 2–3 (App. Div. 1942) (finding installation of rails
                                           6

across sidewalk to permit wheeling of refuse to curb gives rise to

liability). 1

        Consistent with the common law rule, it has generally been held

that a statute or ordinance that merely imposes a duty to maintain a

sidewalk in good repair does not thrust liability for damages onto the

abutting landowner. See Jhong § 6[a], at 354–57, Supp. 32–34; Lehr §

36:18; McQuillin § 54:67, at 238–39; see also Dreher v. Joseph, 759 A.2d

114, 116–17 (Conn. App. Ct. 2000); Robinson v. Arnold, 985 S.W.2d 801,

803 (Mo. Ct. App. 1998). The no-liability theory is based upon the view

that a requirement that abutting property owners maintain sidewalks is

for the benefit of the municipality, not pedestrians.                See Schaefer v.

Lenahan, 146 P.2d 929, 931 (Cal. Dist. Ct. App. 1944) (noting

maintenance statute for the benefit of the city, not for the traveler on the

sidewalk); Denison Parking, Inc. v. Davis, 861 N.E.2d 1276, 1281 (Ind. Ct.

App. 2007) (stating statutory duty to maintain sidewalk free of snow and

ice not for protection of individuals using the streets, but for benefit of

municipalities); Nord v. Butte Water Co., 30 P.2d 809, 812 (Mont. 1934)

(noting that when ordinance requires abutting property owner to keep

sidewalk in repair, city’s duty to the public is not affected and property

owner is joint agent with city officials in performance of city’s duty).

        In contrast, an ordinance or statute that expressly makes an

abutting landowner liable for damages occasioned by the defective



        1Notably, Pennsylvania has long rejected the prevailing common law rule and
adopted the view that the abutting landowner is primarily liable for the failure to keep
the sidewalk in a safe condition. See Lohr v. Borough of Philipsburg, 27 A. 133, 134 (Pa.
1893).    See generally Jhong § 5[a], at 348–52, Supp. 31–32 (discussing the
Pennsylvania rule). The Supreme Judicial Court of Massachusetts recently rejected the
common law rule with respect to accumulations of snow and ice. See Papadopoulos v.
Target Corp., 930 N.E.2d 142, 154 (Mass. 2010).
                                          7

condition of sidewalks may give rise to such liability. See Jhong § 7, at

358–61, Supp. 34–36; Lehr § 36:18; McQuillin § 54:67, at 238–39; see

also Gonzales v. City of San Jose, 23 Cal. Rptr. 3d 178, 181, 185 (Ct.

App. 2004); Davison v. City of Buffalo, 947 N.Y.S.2d 702, 703 (App. Div.

2012); Pardi v. Barone, 690 N.Y.S.2d 315, 317 (App. Div. 1999);

Bogomolsky v. City of New York, 687 N.Y.S. 2d 176, 177 (App. Div. 1999);

Gangemi v. City of New York, 827 N.Y.S.2d 498, 504 (Sup. Ct. 2006).

Express    legislative    authorization       to   shift   liability   onto   abutting

landowners dates back to the late nineteenth century. See, e.g., Morton

v. Smith, 4 N.W. 330, 330 (Wis. 1880) (involving city charter that

obligated abutting property owner to maintain sidewalk and imposed

liability for defects).

       Iowa has long followed the established common law rule that an

abutting property owner is not liable in tort for injuries arising from

defects in adjacent sidewalks. See, e.g., City of Keokuk v. Indep. Dist. of

Keokuk, 53 Iowa 352, 355–57, 5 N.W. 503, 506–07 (1880). Further, we

have also followed the well-established rule that where a statute requires

an abutting property owner to engage in sidewalk maintenance activities,

such as the removal of snow and ice accumulations, such an affirmative

obligation does not give rise to liability for damages. See Peffers v. City of

Des Moines, 299 N.W.2d 675, 677–78 (Iowa 1980), superseded by statute,

1984 Iowa Acts ch. 1002, § 1 (codified at Iowa Code § 364.12(2)(b)

(1985)), as recognized in Fritz v. Parkison, 397 N.W.2d 714, 717 n.1 (Iowa

1986).

       IV. Overview of Relevant Statutes and Ordinances.

       We begin with a review of the provisions of Iowa Code chapter 364.

Chapter 364 generally describes the powers and duties of cities under

Iowa law. See Iowa Code ch. 364 (2009). Section 364.12(2) relates to
                                               8

maintaining certain city property, including sidewalks. See Iowa Code

§ 364.12(2). As relevant, section 364.12(2) provides:

              A city shall keep all . . . sidewalks . . . in repair, and
       free from nuisance, with the following exceptions:

                ....

             (b) The abutting property owner is responsible for the
       removal of the natural accumulations of snow and ice from
       the sidewalks within a reasonable amount of time and may
       be liable for damages caused by the failure of the abutting
       property owner to use reasonable care in the removal of the
       snow or ice. . . .

             (c) The abutting property owner may be required by
       ordinance to maintain all property outside the lot and
       property lines and inside the curb lines upon the public
       streets . . . .

Id.

       In light of section 364.12(2)(c), the City enacted an ordinance that

in relevant part, provides that “[t]he abutting property owner shall

maintain the sidewalk in a safe condition, in a state of good repair, and

free from defects.”        Iowa City Code § 16-1A-6.          The ordinance further

provides that “[t]he abutting property owner may be liable for damages

caused by failure to maintain the sidewalk.” 2 Id.


       2The   full text of the ordinance is as follows:

       The abutting property owner shall maintain all public right of way
       located between the edge of the street or curb line and the property line,
       and shall keep such area in a safe condition free from defects, debris,
       nuisances, obstructions or any other hazard. The abutting property
       owner may be liable for damages caused by failure to maintain the public
       right of way located between the edge of the street or curb line and the
       property line. The abutting property owner shall maintain the sidewalk in
       a safe condition, in a state of good repair, and free from defects. The
       abutting property owner may be liable for damages caused by failure to
       maintain the sidewalk.        Notwithstanding the obligations imposed
       hereunder, the property owner shall in no event remove diseased trees or
       dead wood or plant, trim, remove or treat any tree or plant material on
       public right of way without first obtaining a permit from the city forester.
Iowa City Code § 16-1A-6 (emphasis added).
                                      9

      The latter-quoted clause gives rise to the controversy in this case.

The State claims the City does not have the power to impose liability on

an abutting property owner, but may only require the abutting property

owner to maintain the sidewalk as expressly permitted by Iowa Code

section 364.12(2)(c).

      Finally, Iowa Code section 669.2(3)(a), which defines “claim” for

purposes of the ITCA, generally waives sovereign immunity for

      [a]ny claim against the state for Iowa for money only, on
      account of damage to or loss of property or on account of
      personal injury or death, caused by the negligent or wrongful
      act or omission of any employee of the state while acting
      within the scope of the employee’s office or employment,
      under circumstances where the state, if a private person,
      would be liable to the claimant for such damage, loss, injury,
      or death.

A contested issue in this case is whether the City’s cross-petition asserts

a claim under this provision.

     V. Authority of City to Impose Liability by Ordinance on
Abutting Landowners for Sidewalk Maintenance and Repair.
      A. Positions of the Parties.

      1. The State.     The State contends the language in Iowa Code

section 364.12(2)(c) does not shift liability to abutting property owners for
failure to maintain or repair sidewalks.       At common law, the State

observes, there is no negligence action for sidewalk maintenance against

the abutting landowner. See City of Keokuk, 53 Iowa 352 at 355–57, 5

N.W. at 506–07. The State’s position is that the statute does not alter

the common law rule, but only requires an abutting land owner to

maintain the sidewalk. If the abutting property owner fails to repair the

sidewalk after notice, the City may perform the work and bill the

abutting landowner “for collection in the same manner as a property

tax.” Iowa Code § 364.12(2)(d)–(e).
                                    10

      The State supports its argument by citing the adjacent statutory

provision related to removal of snow and ice found in Iowa Code section

364.12(2)(b).   Here, the legislature expressly declared the abutting

property owner “is responsible” for removal of natural accumulations of

snow and ice and “may be liable for damages caused by the failure of the

abutting property owner to use reasonable care in the removal of snow or

ice.” Iowa Code § 364.12(2)(b).    The State asserts the language in the

statute authorizing damages for failure to remove snow and ice was

enacted by the legislature in 1984 to nullify this court’s decision in

Peffers.   See 1984 Iowa Acts ch. 1002, § 1.        In Peffers, we held a

precursor Iowa Code section 364.12(2)(b), which merely stated the

property owner was responsible for prompt removal of snow and ice, did

not establish a right of action for damages upon the abutting landowner.

299 N.W.2d at 676, 679.

      The State then addresses the question of whether the City’s

ordinance is a permissible exercise of home-rule powers even if Iowa

Code section 364.12(2)(b) does not expressly authorize a damage remedy.

The City notes that under section 364.12(2), the legislature has stated

that “[a] city shall keep all . . . sidewalks . . . in repair, and free from

nuisance, with the following exceptions” including the exception

authorizing the City to require abutting landowners to maintain

sidewalks in Iowa Code section 364.12(2)(c). The State claims, however,

that the carve-out from primary responsibility for sidewalks is a limited

one that only relates to maintenance and repair, and does not authorize a

carve-out for damages actions.     As a result, any liability for damages

remains with the City, which is required to maintain sidewalks subject

only to the narrow statutory exceptions. Any effort by the City to shift

liability for sidewalk maintenance, according to the State, is thus
                                     11

inconsistent with the legislative scheme, which imposes responsibility for

maintenance of sidewalks upon the City subject only to certain

exceptions.

      2. The City. The City views the statutory scheme differently. The

City views section 364.12(2)(b) as a mandatory section under which an

abutting landowner “is responsible” for snow and ice removal from

sidewalks and “may be liable for damages” regardless of the policy

preference of the City. Iowa Code § 364.12(2)(b). No local ordinance is

required to implement the legislature’s policy of imposing liability for

snow and ice removal from sidewalks on abutting landowners.

      The City argues, however, that in contrast to the snow and ice

provision, Iowa Code section 364.12(2)(c) is an optional provision. Under

section 364.12(2)(c), the City argues the question of whether an abutting

landowner is liable for damages arising from maintenance or the failure

to repair defects in sidewalks rests within the discretion of the City. In

other words, the legislature has directed that in all cities, an abutting

landowner may be liable for damages related to snow and ice, but with

respect to general maintenance and repair of sidewalks, the question of

liability of abutting property owners depends upon whether a city elects

to impose such liability by ordinance.

      Turning to the home-rule issue, the City asserts that under article

III, section 38A of the Iowa Constitution, as implemented by legislation,

“[a] city may exercise its general powers subject only to limitations

expressly imposed by a state or city law.” Iowa Code § 364.2(2). The City

further notes that “[a]n exercise of a city power is not inconsistent with a

state law unless it is irreconcilable with state law.” Id. § 364.2(3).

      The City then analyzes our caselaw determining whether a local

law is inconsistent with state law. The City notes that we have employed
                                    12

a preemption analysis that includes express preemption and two forms of

implied preemption, field preemption and conflict preemption. The City

notes the Iowa Code does not expressly preempt a city’s imposition of

liability for sidewalk maintenance and repair on abutting landowners,

and as a result, the case turns on implied field and conflict preemption.

With respect to field preemption, the City argues the statutes related to

the maintenance of sidewalks are not sufficiently comprehensive to oust

the City’s home-rule authority.   Cf. City of Davenport v. Seymour, 755

N.W.2d 533, 543 (Iowa 2008) (noting comprehensive statute may give

rise to field preemption). With respect to conflict preemption, the City

argues an ordinance must be irreconcilable with state law, such as when

local law prohibits an act permitted by statute or permits an act

prohibited by statute. See BeeRite Tire Disposal/Recycling, Inc. v. City of

Rhodes, 646 N.W.2d 857, 859 (Iowa Ct. App. 2002). According to the

City, the imposition of a duty and subsequent liability is a measure for

the “safety, health, welfare, comfort, and convenience of its residents”

and is faithful with the legislative framework established in Iowa Code

chapter 364. Iowa Code § 364.1.

      B.   Analysis. We begin our discussion by making an important

legal distinction. One question raised by the State is whether Iowa Code

section 364.12(2)(c) gives rise to a private cause of action against an

abutting property owner for injuries sustained as a result of a sidewalk

defect. We think the answer to this question is clear, and it is no. As the

State correctly points out, the statute expressly authorizes a damages

action against an abutting landowner for failure to remove snow and ice

in Iowa Code section 364.12(2)(b), but such language is notably absent in

Iowa Code section 364.12(2)(c). The inclusion of an express provision for

a damages action in subsection (b) and the omission of such language in
                                   13

subsection (c) is a strong indicator that we should not imply a damages

action in subsection (c).

      Further, the caselaw supports the State’s argument that Iowa Code

section 364.12(2)(c) does not expressly or impliedly provide for a private

cause of action.   In Peffers, we considered whether a precursor to the

present statute authorized a damage remedy based on an alleged

negligent failure to remove snow and ice.           299 N.W.2d at 676.

Consistent with the prevailing caselaw across the country, we held that

the statute at the time, which only imposed a duty of maintenance with

respect to sidewalks, did not create a damage remedy. Id. at 677.

      In response to Peffers, the legislature amended Iowa Code section

364.12(2)(b) to explicitly provide for a damage remedy in the case of

removal of snow and ice.     See 1984 Iowa Acts ch. 1002, § 1.          The

legislative action conformed to the generally prevailing view endorsed in

Peffers that a statute or ordinance that imposes a duty of maintenance

does not give rise to a damages action, while, conversely, if a statute or

ordinance does expressly provide for a damages action, liability may

result. 299 N.W.2d at 677.

      If the question of whether the statute, standing alone, authorizes a

damages remedy demarcated the end of the legal trail, this case would be

an easy case, and quickly dispatched. But it is not the end of the legal

trail. The City rests its legal argument not on the stand alone authority

of Iowa Code section 364.12(2)(c), but instead upon its local ordinance

which expressly authorizes a damage remedy. In short, the City asserts

it may bring in the State as a third-party defendant under its ordinance

which expressly provides that the abutting landowner has a duty to

maintain the sidewalk and is liable for damages in the case of negligence

arising from a breach of that duty.     This is a distinctly different issue
                                    14

than was decided in Peffers. In Peffers, the issue was whether a damages

action could be implied from a mere duty to maintain the sidewalk. See

299 N.W.2d at 677. Here, the ordinance goes well beyond the statute at

issue in Peffers and expressly authorizes damages actions. See Iowa City

Code § 16-1A-6.    In other words, the central question in this case is

whether the express damages provision in the Iowa City ordinance may

be validly enforced against the State.

      In order to determine whether the ordinance is lawful, we begin

with Iowa Constitution article III, section 38A, which generally provides

for home rule for Iowa municipalities. Under our home-rule approach,

except for taxing authority, municipalities ordinarily have the power to

determine local affairs as they see fit unless the legislature has provided

otherwise. See Iowa Const. art. III, § 38A. We must determine whether

the legislature has ousted the City’s power to enact the ordinance

through the various provisions of Iowa Code section 364.12.

      In determining whether the legislature has trumped local action,

we engage in what we have called preemption analysis.          By way of

general overview, there are two types of preemption: express and implied.

Express preemption occurs where the legislature has explicitly prohibited

local action in a given area. Hensler v. City of Davenport, 790 N.W.2d

569, 585 (Iowa 2010); Seymour, 755 N.W.2d at 538; Goodell v. Humboldt

County, 575 N.W.2d 486, 492 (Iowa 1998).        No party here claims the

legislature has expressly prohibited municipalities from seeking to

impose liability on abutting landowners for sidewalk maintenance. As a

result, only implied preemption is available to the State in its effort to

defeat enforcement of the City ordinance.

      Implied preemption breaks down into two subcategories, field

preemption and conflict preemption.      Hensler, 790 N.W.2d at 585–86;
                                       15

Seymour, 755 N.W.2d at 538–39; Goodell, 575 N.W.2d at 493. No one

has suggested field preemption—which may apply when the legislature

has enacted a comprehensive regulatory framework—applies here.

Hensler, 790 N.W.2d at 585–86; Seymour, 755 N.W.2d at 539. So the

sole issue is whether the City’s ordinance conflicts with a state statute.

If the ordinance conflicts with a statute, it is, of course, invalid.      See

Seymour, 755 N.W.2d at 538, 541–42.            If it does not conflict, it is a

permitted exercise of home-rule authority.

        In considering implied conflict preemption, where possible we seek

to harmonize the state statute with the local ordinance. Seymour, 755

N.W.2d at 539; Goodell, 575 N.W.2d at 500.           In order to give rise to

implied conflict preemption, the ordinance must be “irreconcilable” with

state law. Hensler, 790 N.W.2d at 585; Seymour, 755 N.W.2d at 539,

541; BeeRite Tire Disposal, 646 N.W.2d at 859.            In applying implied

conflict preemption, we are to “ ‘interpret the state law in such a manner

as to render it harmonious with the ordinance.’ ” Seymour, 755 N.W.2d

at 539 (quoting City of Des Moines v. Gruen, 457 N.W.2d 340, 342 (Iowa

1990)); accord Iowa Grocery Indus. Ass’n v. City of Des Moines, 712

N.W.2d 675, 680 (Iowa 2006). In order to be “irreconcilable,” the conflict

must be “ ‘obvious, unavoidable, and not a matter of reasonable

debate.’ ” Hensler, 790 N.W.2d at 585 (quoting Seymour, 755 N.W.2d at

539).

        Although   we   think   it   quite   clear that   Iowa Code    section

364.12(2)(b) does not create a stand-alone cause of action for damages

with respect to the failure of an abutting landowner to maintain or repair

sidewalks, nothing in the statute expressly or impliedly prohibits cities

from doing so. The statute indicates an abutting property owner “may be

required” by ordinance to maintain property, Iowa Code § 364.12(2)(c),
                                           16

but does not prohibit an ordinance that also creates a damages remedy,

see Iowa Code § 364.12. While legislative silence on the issue may be a

powerful indicator that the legislature has not created an implied cause

of action under the statute, we do not think legislative silence can be

interpreted as a prohibition of local action under home rule in light of our

obligation to harmonize and reconcile a statute with an ordinance

whenever possible.        In order to be irreconcilable, the conflict must be

“obvious, unavoidable, and not a matter of reasonable debate.” Hensler,

790 N.W.2d at 585 (quoting Seymour, 755 N.W.2d at 539). Here, there is

no such conflict between the statute, which relates to maintenance of

sidewalks, and the City’s ordinance, which expressly states that abutting

landowners are liable for damages resulting from sidewalk defects.

       Where an ordinance or statute imposes a duty to maintain

sidewalks on abutting landowners, the majority view is that the

obligation of the abutting landowner is one as agent for the municipality,

or, acting for the benefit of the municipality. See Schaefer, 146 P.2d at

930–32; Nord, 30 P.2d at 812–13 (“When . . . the city by ordinance

requires the abutting property owner to keep the sidewalk in repair, the

city’s duty to the public is not affected; it merely makes the individual a

joint agent with the city officials for the performance of the city’s duty.”).3

We therefore conclude that when an ordinance or statute validly imposes

a maintenance obligation and also imposes liability on the abutting



       3The  City has pled a contribution rather than an indemnification claim. We do
not think the label is a basis for granting summary judgment in this case. Although
indemnification and contribution are not identical concepts, contribution is a lesser-
included liability compared to the liability resulting from indemnification. In any event,
because our statutory interpretation is a question of first impression, we do not believe
that summary judgment should be granted without giving the City an opportunity to
amend its petition to allege indemnity to the extent such an amendment is necessary.
                                     17

landowner, the City is entitled to indemnification from the abutting

landowner for any damages arising out of its failure to maintain the

sidewalk.

      We note that at least one other jurisdiction has come to the

conclusion that a similar local ordinance is not preempted by state law.

In Gonzales, the appellate court considered, among other issues, whether

a state statute which required landowners of abutting property to

maintain sidewalks preempted a local ordinance which provided that

abutting landowners could be liable to third parties. 23 Cal. Rptr. 3d at

183–84. The Gonzales court specifically considered whether California

Streets and Highways Code section 5610, which required abutting

landowners to maintain sidewalks preempted the local ordinance. Id. at

182–84.      According to the Gonzales court, the statute dealt only with

“maintenance of abutting sidewalks, and the landowner’s duty to the

city, not to pedestrians that use the sidewalk.” Id. at 184. The Gonzales

court reasoned that “silence on the issue of adjacent landowner liability

does not preempt the local ordinance.” Id. We apply similar reasoning in

this case.

      For the above reasons, we conclude the Iowa City ordinance

expressly providing for a damage remedy against abutting landowners

with respect to sidewalk defects is not preempted by Iowa Code section

364.12(2).

      VI. Whether Potential Imposition of Liability Against the State
is an Unlawful Tax.
      A. Positions of the Parties.

      1. The State.     The State contends the City’s attempt to thrust

liability onto the State amounts to an effort to levy a tax not authorized

by statute. The State cites the Iowa home rule amendment. See Iowa
                                     18

Const. art. III, § 38A.    Under the home rule amendment, a municipal

corporation does not have the power “to levy any tax unless expressly

authorized by the general assembly.”       Id.   The State points out that

nothing in the Iowa Code expressly authorizes the City to shift liability

onto abutting property owners.       Further, the State claims that under

Iowa Code section 364.3(2), a city may not impose a penalty in excess of

a fine of five hundred dollars and thirty days’ imprisonment, and under

Iowa Code section 364.3(6), a city may not provide a civil penalty in

excess of seven hundred and fifty dollars for the violation of a municipal

infraction.     Imposition of tort damages, the State argues, is the

imposition of an unauthorized tax.

      2. The City. The City responds by noting that under our caselaw,

a tax is “ ‘a charge to pay the cost of government without regard to

special benefits conferred,’ meaning its primary purpose is to raise

revenue.”     Kragnes v. City of Des Moines, 714 N.W.2d 632, 639 (Iowa

2006) (quoting Home Builders Ass’n of Greater Des Moines v. City of West

Des Moines, 644 N.W.2d 339, 346 (Iowa 2002)). The City maintains the

primary purpose of its ordinance is not to raise revenue for the City, but

to allow a third party injured by a defect in a sidewalk to recover from the

abutting landowner.       Further, the City contends nothing in Iowa Code

sections 364.3(2) or 364.3(6) prevents the City from imposing remedies

on property owners that exceed those limitations.

      B. Analysis. Although there are few cases of recent vintage, most

of the authorities dealing with ordinances thrusting responsibility for

sidewalks onto abutting owners have been sustained against challenges

that they impose an unlawful tax. See James v. City of Pine Bluff, 4 S.W.

760, 761–62 (Ark. 1887); Palmer v. Way, 6 Colo. 106, 117–18 (1881);

Inhabitants of Palmyra v. Morton, 25 Mo. 593, 595–96 (1857); City of
                                       19

Lincoln v. Janesch, 89 N.W. 280, 281–82 (Neb. 1902); State v. Newark, 37

N.J.L. 415, 422–23 (1874); Mayor & Aldermen v. Maberry, 25 Tenn. (5

Hum.) 368, 372–74 (1845); Cain v. City of Tyler, 261 S.W. 1018, 1021

(Tex. Comm’n App. 1924, judgm’t adopted). There is some authority to

the contrary.     See Noonan v. City of Stillwater, 22 N.W. 444, 445–47

(Minn. 1885). See generally J.P.M., Annotation, Constitutionality of State

or Ordinance Imposing upon Abutting Owners or Occupants Duty in

Respect of Care or Condition of Street or Highway, 58 A.L.R. 215 (1929),

available    at   www.westlaw.com        (collecting    cases   regarding    the

constitutionality   “of    statutes   imposing   upon    abutting   owners    or

occupants duties in respect of care or condition of street or highway”).

        Our cases indicate a tax is a general revenue measure without

benefits conferred.       Kragnes, 714 N.W.2d at 639; Home Builders, 644

N.W.2d at 346. We do not believe an ordinance that imposes a liability

on a property owner for injuries arising from sidewalk defects amounts to

a tax.      No funds go into the City’s coffers for general purposes.

Taxpayers are not being charged for services that have no benefit to

them.    Instead, the ordinance imposes a duty on abutting landowners

and makes them responsible for personal injuries that occur from

sidewalk defects that exist as a result of their breach of a duty

established by the city ordinance.       We do not think this case can be

shoehorned into our taxation doctrine. Like the majority of cases from

other jurisdictions, we regard the ordinance as a police regulation not

unlike building or housing codes or protections against public and

private nuisances. We therefore reject the State’s challenge to the Iowa

City ordinance on the ground that it imposes an unauthorized tax.
                                     20
     VII. Whether the City’s Cause of Action Against the State is a
“Claim” Under the ITCA.

      A. Positions of the Parties.
      1. The State. The State maintains that at common law, an injured

party could not seek to recover for damages due to a sidewalk defect from

an abutting landowner. City of Keokuk, 53 Iowa at 355–57, 5 N.W. at

506–07 (holding that city may, by ordinance, require abutting landowner

to repair sidewalk, but that the abutting landowner is not liable in an

action in tort for injuries). The State next maintains that when the ITCA

was enacted in 1966, the statute only waived sovereign immunity for

torts “then existing at common law.” Because liability for injuries due to

a defect in a sidewalk could not at common law be thrust upon an

abutting landowner at the time the ITCA was enacted, the State contends

the State has not waived sovereign immunity on the City’s claim.       In

other words, the State asserts that its sovereign immunity has not been

waived with respect to claims arising from any obligations created under

Iowa Code section 364.12(2)(c) or Iowa City Code section 16-1A-6

because these measures were enacted after the ITCA was passed.

      In addition to arguing that the ITCA does not waive immunity for

subsequently enacted statutes and ordinances, the State also maintains

that nothing in Iowa Code section 364.12(2)(c) itself amounts to a waiver

of sovereign immunity.    In support of its argument that Iowa Code

section 364.12(2)(c) does not waive sovereign immunity, the State cites

two Connecticut cases, Rivers v. City of New Britain, 950 A.2d 1247

(Conn. 2008) (involving case in which the court granted the state’s

motion to dismiss where claim was based on city ordinance that was

authorized by statute generally imposing duty and liability on all

abutting landowners to maintain sidewalk because statute did not
                                    21

expressly waive state’s sovereign immunity), and Gould v. City of

Hartford, 691 A.2d 35 (Conn. Super. Ct. 1995) (same).

      2. The City. The City argues liability in this case is, in fact, based

upon common law that preexisted the ITCA. According to the City, its

claim is an old-fashioned claim based upon common law negligence. The

City recognizes the duty of care imposed on an abutting landowner to

keep sidewalks free from defects arises under the City’s ordinance, but

contends the cause of action remains the common law tort of negligence.

The City cites Seeman for the proposition that a statutory duty may

establish an essential element of a negligence action, such as the duty of

care, but it does not provide a cause of action. See 322 N.W.2d at 37. In

short, the City contends the State confuses the creation of a duty by

statute with the creation of a cause of action for negligence. The City

notes that once it is understood that its claim sounds in negligence, it is

clear under the ITCA, specifically Iowa Code section 669.2(3)(a), that

sovereign immunity has been waived with respect to liability “caused by

the negligent or wrongful act or omission of any employee of the state.”

Iowa Code § 669.2(3)(a).

      With respect to the argument that section 364.12(2)(c) does not

expressly waive sovereign immunity for claims arising out of city

ordinances related to sidewalks, the City asserts that no such express

waiver is required because the ITCA provides a general waiver of liability.

The City distinguishes Gould and Rivers on the ground that Connecticut,

unlike Iowa, has no general sovereign immunity statute.

      The City then turns to the ITCA to determine whether the State

has waived sovereign immunity for the claims in this case.        The City

notes that the contribution claim it is making is based upon a personal

injury.   It further asserts that if the abutting property owner was a
                                     22

private person, and if that private person were negligent, liability would

arise. Further, the claim is not excluded by one of the exceptions listed

in Iowa Code section 669.14. Therefore, the City argues that its cause of

action against the State amounts to a “claim” under the ITCA.

        B. Analysis. We think the City has the best argument here. The

term “claim” in the ITCA is broadly defined to include any damages

“caused by the negligent or wrongful act or omission of any employee of

the state.” Iowa Code § 669.2(3)(a). We have characterized the ITCA as

establishing a “general waiver” of sovereign immunity subject to the

delineated exceptions in Iowa Code section 669.14. Adam v. State, 380

N.W.2d 716, 724 (Iowa 1986). The State does not claim any of the stated

exceptions are applicable in this case.

        Instead, the State argues that because Iowa Code section

364.12(2)(c) and Iowa City Code section 16-1A-6 were enacted after the

ITCA was passed sovereign immunity has not been waived here and

nothing in Iowa Code section 364.12(2)(c) amounts to a waiver of

sovereign immunity.       The State misses the distinction between the

source of a duty and a cause of action. As we noted in Seeman:

               A statutory duty or standard may thus establish an
        essential element for a negligence action. However, it does
        not provide the cause of action. . . . The duty or standard of
        care, statutory or otherwise, is merely an element of proof
        that comes into play after an action has been rightfully
        commenced pursuant to the preexisting common-law cause
        of action.

322 N.W.2d at 37.          Thus, even accepting the State’s analytical

framework, it appears that the cause of action in this case is negligence.

No one contests that a claim of negligence preexisted the passage of the

ITCA.
                                     23

      Further, the core purpose of the general waiver of sovereign
immunity in the ITCA, subject of course to the enumerated exceptions
expressly stated in Iowa Code section 669.14, is to allow the State to be
sued “under circumstances where the state, if a private person, would be
liable to the claimant for such damage, loss, injury, or death.” Iowa Code
§ 669.2(3)(a); see also Graham v. Worthington, 259 Iowa 845, 861, 146
N.W.2d 626, 637 (1966) (holding ITCA does not create new causes of
action, but creates acceptance of liability under circumstances that
would bring private liability into existence). As a result of our previous
holdings, we have determined that if the abutting landowner in this case
were a private entity, it could be brought into this case as a third-party
defendant. We thus think permitting the City to bring the State in as a
third-party defendant in this negligence action and treating it as if it were
a private party, fulfills the fundamental purpose of the ITCA. The broad
waiver of sovereign immunity in the ITCA thus makes this case
distinguishable from Gould and Rivers.
      We therefore reject the State’s argument that the waiver of
sovereign immunity is somehow limited to claims that would have been
recognized at the time of the passage of the Act. We see nothing in the
Act that suggests potential claims against the state are limited precisely
to those that might have been brought in 1966. Instead, we think the
better view is that the State, subject to the statutory exceptions, stands
in the same shoes as a private party for claims regardless of their
viability at the time the ITCA was enacted. If the State is correct, a tort
regime would develop slowly over time which, after the passage of
decades of legal development, would lead to a dual-track system of
liability, thereby undermining the stated legislative purpose. We do not
think the legislature intended to build into the ITCA a mechanism of
gradual erosion.
                                    24

      VIII. Conclusion.
      For all the above reasons, we conclude the Iowa City ordinance is
not preempted by Iowa Code section 364.12(2), the potential imposition
of indemnity under the ordinance does not give rise to an unlawful tax,
and the claim brought against the State is within the scope of ITCA for
purposes of waiver of sovereign immunity. As a result, the decision of
the district court denying the State’s motion to dismiss is affirmed.
      AFFIRMED.
      All justices concur except Waterman and Mansfield, JJ., who
dissent.
                                         25

                                           #13–0673, City of Iowa City v. State

MANSFIELD, Justice (dissenting).

       I respectfully dissent.      As I read Iowa Code section 364.12(2), it

requires cities to keep sidewalks in good repair except to the extent the

city has served notice of a needed repair on the abutting property owner,

and even then the property owner’s liability is limited to the cost of

repair. See Iowa Code § 364.12(2) (2009). Iowa City’s ordinance is an

effort by the City to alter this statutory division of responsibility between

city and property owner.          Simply stated, the City wants the property

owner to do more to maintain City-owned sidewalks, so that the City may

do less. This conflicts with section 364.12(2). It also conflicts with the

common law of Iowa, which we previously said in Peffers v. City of

Des Moines was not modified by section 364.12(2) in the area of tort

liability.    See 299 N.W.2d 675, 677–79 (Iowa 1980), superseded by

statute,     1984   Iowa   Acts    ch.   1002,   §1   (codified   at   Iowa   Code

§ 364.12(2)(b) (1985)).     Thus, I believe state law preempts Iowa City’s

ordinance.      See Iowa Const. art. III, § 38A (disallowing municipal

ordinances that are “inconsistent with the laws of the general assembly”).

       Let me begin with the state law in question.           Section 364.12(2)

states in relevant part:

             2. A city shall keep all public grounds, streets,
       sidewalks,    alleys,    bridges,    culverts, overpasses,
       underpasses, grade crossing separations and approaches,
       public ways, squares, and commons open, in repair, and free
       from nuisance, with the following exceptions:
               ....
             b. The abutting property owner is responsible for the
       removal of the natural accumulations of snow and ice from
       the sidewalks within a reasonable amount of time and may
       be liable for damages caused by the failure of the abutting
       property owner to use reasonable care in the removal of the
       snow or ice. If damages are to be awarded under this section
       against the abutting property owner, the claimant has the
                                   26
      burden of proving the amount of the damages. To authorize
      recovery of more than a nominal amount, facts must exist
      and be shown by the evidence which afford a reasonable
      basis for measuring the amount of the claimant’s actual
      damages, and the amount of actual damages shall not be
      determined by speculation, conjecture, or surmise. All legal
      or equitable defenses are available to the abutting property
      owner in an action brought pursuant to this paragraph. The
      city’s general duty under this subsection does not include a
      duty to remove natural accumulations of snow or ice from
      the sidewalks. However, when the city is the abutting
      property owner it has the specific duty of the abutting
      property owner set forth in this paragraph.
            c. The abutting property owner may be required by
      ordinance to maintain all property outside the lot and
      property lines and inside the curb lines upon the public
      streets, except that the property owner shall not be required
      to remove diseased trees or dead wood on the publicly owned
      property or right-of-way.
            d. A city may serve notice on the abutting property
      owner, by certified mail to the property owner as shown by
      the records of the county auditor, requiring the abutting
      property owner to repair, replace, or reconstruct sidewalks.
            e. If the abutting property owner does not perform an
      action required under this subsection within a reasonable
      time, a city may perform the required action and assess the
      costs against the abutting property for collection in the same
      manner as a property tax. This power does not relieve the
      abutting property owner of liability imposed under
      paragraph “b”.

Iowa Code § 364.12(2) (2009) (emphasis added).

      This law seems to me fairly clear. Under the preamble to section 2

and subsection (d), the city has the duty to maintain the sidewalk unless

it “serve[s] notice on the abutting property owner,” directing it to make

repairs. Id. § 364.12(2)(d). On the other hand, under subsection (b), the

abutting property owner is responsible for removing snow from sidewalks

“within a reasonable amount of time” without regard to notice and may

be liable in damages for failing to do so.    Id. § 364.12(2)(b).   Finally,

under subsection (c), the city has the option of requiring the property

owner to maintain city property that is inside the curb line.            Id.
                                      27

§ 364.12(2)(c).    This, for example, could be a requirement that the

property owner mow any lawn between the sidewalk and the street. See,

e.g., Goodenow v. City Council, 574 N.W.2d 18, 23 (Iowa 1998). However,

I do not read subsection (c) as covering the subjects of sidewalk snow

removal or sidewalk repair, because they are expressly covered by

subsections (b) and (d).      If subsection (c) were meant to cover those

issues, then subsections (b) and (d) would be superfluous.          See Iowa

Code § 4.4(2) (setting forth the presumption that “[t]he entire statute is

intended to be effective”); Neal v. Annett Holdings, Inc., 814 N.W.2d 512,

520 (Iowa 2012) (“In interpreting a statute, each term is to be given

effect, and we will not read a statute so that any provision will be

rendered      superfluous.”    (Citation   and   internal   quotation   marks

omitted.)).

      This allocation of responsibility between city and property owner is

logical. Snow removal from sidewalks has to be performed several times

each winter.      It is relatively inexpensive and convenient for property

owners to clear adjacent sidewalks at the same time they are shoveling

their own driveways and walks. Therefore, it makes sense for property

owners to bear this obligation. It would be inefficient to impose on cities

the duty to inspect sidewalks for snow and ice or to keep them clear of

snow and ice.

      On the other hand, sidewalk repairs are a rarer and more costly

undertaking. Determining whether a repair is needed and the kind of

repair needed may involve some engineering or cost-benefit judgment.

Thus, it makes sense for the city to shoulder much of this obligation,

even if the city is given the right to ask the property owner to make the

repairs according to the city’s specifications and, if the property owner
                                          28

does not do so, to charge back the costs of repair to the abutting

property owner. 4

       Given the foregoing statutory wording, I see a clear conflict

between state law and Iowa City’s ordinance. The ordinance provides in

relevant part:

       The abutting property owners shall maintain the sidewalk in
       a safe condition, in a state of good repair, and free from
       defects. The abutting property owner may be liable for
       damages caused by failure to maintain the sidewalk.

Iowa City,    Iowa,    Code     § 16-1A-6      (current   through      Mar. 4, 2014),
available    at    www.sterlingcodifiers.com/codebook/index.php?book_1b=

953.

       This ordinance expands the property owner’s liability well beyond

the confines of Iowa Code section 364.12. The ordinance provides not

only that the property owner will be responsible for the cost of sidewalk

repair if notified by the City that a repair is necessary, but also that it

will be liable to the public for sidewalk accidents whether it was notified

by the City that a repair was necessary or not. See Iowa City Code § 16-

1A-6. As the majority concedes, no such liability exists at common law.

After all, the sidewalk is the property of the City, not the abutting

property owner.


       4Notably,   Iowa City explains on its website that it inspects the sidewalks
throughout the City regularly on a rotating basis for needed repairs. See City of Iowa
City, Iowa Sidewalk Repair Program, http://www.icgov.org/?id=1911 (last visited
June 6, 2014). When it finds a problem, it sends a notice to the property owner
detailing the repairs needed and specifications for how the repairs need to be
performed. Id. If the property owner fails to make the repair by the deadline, the City
does the repair itself and invoices the property owner for construction costs plus a $25
administrative fee. Id.
       Obviously, if the property owner does something that affects the condition of the
sidewalk, then a duty could arise under the common law. See Thompson v. Kaczinski,
774 N.W.2d 829, 835–36 (Iowa 2009).
                                          29

       The conflict becomes even more apparent when you consider the

backdrop to the current version of Iowa Code section 364.12. In Peffers,

we held that section 364.12(2)(b), as it read at the time, did not allow

private persons to sue abutting property owners for failure to remove

snow and ice. 299 N.W.2d at 679. We emphasized that at common law,

the city, which owns the sidewalk, and not the property owner, bore this

liability. Id. at 677. We held the statutory language making the abutting

property owner “responsible” for the removal of snow and ice from

sidewalks only made the property owner responsible for its removal vis-à-

vis the city and did not give rise to liability vis-à-vis the public. Id. at

677–79. As we explained,

               We assume that the legislature knew of the existing
       state of our case law, holding the city rather than the
       abutting property owner liable to pedestrians. We find no
       clear indication in the present statute that the legislature
       intended to change the existing law. First, there is no
       language in the statute expressly addressing the issue of
       liability to pedestrians. Second, the legislative history of
       section 364.12(2) does not evince any intention on the part
       of the legislature either to shift to the abutting property
       owner or otherwise abrogate the city’s liability to pedestrians
       for negligent care of public sidewalks. The preamble to the
       legislation states that the purpose of the enactment is to
       establish home rule for local government. A careful reading
       of the preamble does not reveal anything purporting to alter
       the existing state of the law regarding liability to pedestrians.

Id. at 679.

       After Peffers was decided, the general assembly amended section

364.12(2) to expressly authorize a damages action under subsection (b)

when the abutting property owner failed to remove snow and ice. 5 See


       5At the time of the Peffers decision, subsection (b) read only as follows: “ ‘The
abutting property owner is responsible for the prompt removal of snow, ice, and
accumulations from the sidewalks.’ ”       299 N.W.2d at 676 (quoting Iowa Code
§ 364.12(2)(b) (1979)).
                                    30

1984 Iowa Acts ch. 1002, § 1. However, the legislature did not materially

amend subsections (c) or (d). See id. Thus, I think the Peffers holding

that section 364.12(2) incorporates the common law of torts still applies

to those two subsections.     See 299 N.W.2d at 678.       Since the prior

language in subsection (b) requiring the abutting landowner to be

“responsible” for snow removal was not enough to establish a legal duty

running from the abutting landowner to the public contrary to common

law, I do not see how the carried-over language in subsection (c) giving

the city the option of requiring the abutting landowner to “maintain”

public property would authorize the city to create a new liability running

from the landowner to the public that is also contrary to common law.

See Iowa Code § 364.12(2)(c); Peffers, 299 N.W.2d at 677.          Had the

legislature contemplated a shift from the common law rule that abutting

property owners were not liable to pedestrians in any area other than

snow removal, it would have included language in subsection (c) or (d)

similar to the language it added to subsection (b).        See Iowa Code

§ 364.12(2)(b)–(d).

      Furthermore, the 1984 legislation added to subsection (e) the

following sentence: “This power does not relieve the abutting property
owner of liability imposed under paragraph b.” See 1984 Iowa Acts ch.

1002, § 1. But doesn’t this addition indicate, implicitly, that the property

owner is not subject to potential liability to the public under the other

subsections? Otherwise, the legislature would have mentioned them.

      We follow the statutory interpretation rule in Iowa that “expressio

unius est ex[c]lusio alterius, meaning that ‘legislative intent is expressed

by omission as well as by inclusion.’ ”      Staff Mgmt. v. Jimenez, 839

N.W.2d 640, 649 (Iowa 2013). Here, the legislature expressly authorized

liability to pedestrians only in subsection (b).          See Iowa Code
                                       31

§ 364.12(2)(b). I think the conclusion is inescapable it did not authorize

it in subsections (c) or (d). Id. § 364.12(2)(c)–(d).

      The majority cites a California case that upheld a City of San Jose

ordinance making adjacent landowners liable to pedestrians for unsafe

conditions on sidewalks.         See Gonzales v. City of San Jose, 23

Cal. Rptr. 3d 178, 183–84 (Ct. App. 2004). However, California state law

expressly provides that adjacent landowners “shall maintain any

sidewalk in such condition that the sidewalk will not endanger persons

or property.” Id. at 181 n.4 (quoting Cal. Sts. & High. Code § 5610 (West,

Westlaw through Ch. 22 of 2014 Reg. Sess., Res. Ch. 1 of 2013–2014 2d

Ex. Sess., and all propositions on the 6/3/2014 ballot)). This wording is

quite different from Iowa Code section 364.12(2). Cf. Dean v. Yahnke,

670 N.W.2d 28, 32 (Neb. 2003) (finding that a legislative authorization to

make sidewalk repairs and assess the expense to the abutting property

owner did not authorize a second-class city to delegate the duty of

sidewalk maintenance or repair generally or shift liability to the property

owner).

      While I do not at all disagree with the majority’s thorough

discussion of preemption principles, the real question here is one of

statutory interpretation. Contrary to the majority, I do not believe the

present case involves “legislative silence.”      Rather, Iowa Code section

364.12(2) contains an express legislative determination that the City

should be responsible for sidewalk maintenance subject only to a

particularized right to shift costs of repair to the adjoining property

owner in certain circumstances.        Hence, I would reverse and remand

with instructions to grant the State’s motion to dismiss.

      Waterman, J., joins this dissent.
