                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2137
                                Filed April 6, 2016


DEBRA JO ROBESON,
    Plaintiff-Appellant,

vs.

VIETH CONSTRUCTION
CORPORATION,
     Defendant-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      A personal-injury plaintiff appeals a directed verdict in favor of the

defendant construction company. REVERSED AND REMANDED.



      Chad A. Swanson and Laura L. Folkerts of Dutton, Braun, Staack &

Hellman, P.L.C., Waterloo, for appellant.

      Karla J. Shea of McCoy, Riley & Shea, P.L.C., Waterloo, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                             2



TABOR, Judge.

       Debbie Robeson injured her leg after catching her toe in the orange plastic

webbing of a construction fence flattened across a nature trail. She sued Vieth

Construction Corporation for negligence and presented her case at trial. The

district court granted Vieth a directed verdict. Robeson appeals, contending the

court incorrectly decided she was a trespasser as a matter of law and the court

should have allowed the jury to decide whether the construction company

breached its duty of care.1        Because Robeson’s evidence generated a jury

question concerning Vieth’s liability, we reverse and remand for a new trial.

I.     Facts and Prior Proceedings

       On April 12, 2012, Robeson set off with her friend Sheila Steffen for a

lunch-hour walk on the Cedar Valley Nature Trail in Waterloo. The women were

participating in the city’s “blue zones” project that encourages residents to

exercise and make other healthy choices. Robeson parked at a trailhead near

the UNI-Center for Urban Education on Sycamore and East Sixth Streets. The

nature trail runs parallel to the Cedar River.




1
   Robeson also raises a third issue, asking the Iowa Supreme Court to abolish the
trespasser distinction for premises liability, a step the court already took for invitees and
licensees. See Koenig v. Koenig, 766 N.W.2d 635, 645 n.2 (Iowa 2009) (expressing no
opinion on continued validity of common-law doctrine involving trespassers); see also id.
at 646 (Streit, J., specially concurring) (“The majority takes a much-needed step away
from the premises liability trichotomy, but needlessly leaves standing one leg of a three-
legged stool.”). Because the supreme court did not retain this case, Robeson’s request
to invalidate existing case law cannot be addressed. See Figley v. W.S. Indus., 801
N.W.2d 602, 608 (Iowa Ct. App. 2011) (“[W]e are not at liberty to overturn precedent of
our supreme court.”).
                                          3



       The two women saw no “sidewalk closed” or other detour signs as they

entered the trail, heading southeast toward Seventh Street. Robeson did see a

bicyclist go by, as well as another pedestrian who was taking photographs along

the trail. As they started to walk down the trail, the women noticed an orange

construction fence “kind of laid across the sidewalk.” Steffen described the fence

as “very smooshed” and “low to the ground” —looking like it was in “disuse.” She

testified: “[I]t was almost like people had been going over it. . . . it was flat.”

According to Steffen, the fence was still attached to poles on either side of the

trail, but was “riding very low.”

       As Robeson approached the fence she asked her friend: “What’s going on

here?”2     Steffen responded: “I think they’re going to build some apartment

buildings. . . . But it’s not a problem. The trail’s been open.” Steffen said some

of her co-workers had walked on the trail earlier that day. Robeson also recalled

seeing posts on either side of the trail where the construction fencing had been

fastened.    She said the orange fence was somewhat discolored and “looked

abandoned” and “worn.” She described the material as not laying “completely

flat like a piece of paper . . . because of the nature of it, it is kind of bubbled or

smooshed up in a spot or two.” Robeson did not believe the trail was closed.

       Steffen was walking a bit ahead of Robeson and went over the orange

fence without any difficulty. Robeson saw Steffen step on the plastic, at least

with one foot.     Robeson testified she was “careful” when she crossed the




2
  Robeson recalled walking on the trail two or three times in March and did not
remember seeing the fence across the trail.
                                           4



flattened fence. But the toe of her tennis shoe caught in the webbing, and she

fell forward, splaying into a military-pushup pose.

       Robeson felt “instant pain” and cried out to Steffen. Steffen remembered

Robeson looking “very ashen” and experiencing “a great deal of pain.” They

called Robeson’s husband, who took her to the emergency room. Robeson had

suffered an avulsed hamstring, essentially ripping the tendon away from the

bone, which required surgery and a long, painful convalescence.

       The orange construction fence was the property of Vieth Construction,

who had contracted with the City of Waterloo to complete a portage project for

kayaks and canoes to dock along the Cedar River. One of the docking locations

was southeast of Sixth Street. The project required Vieth to build an access road

across the nature trail so that it could move its excavating equipment to the

river’s level. As part of its contract with the city and at the direction of the project

designer, Vieth erected a construction fence around its staging area.              The

fencing went up in April 2011 when work started. According to Vieth’s project

supervisor, Craig Kerns, maintaining the fence was a “big challenge” because

keeping the nature trail closed was not popular with the public.            During the

summer of 2011, members of the public would tear down the fence “just about

every day.” Vieth employee Terry Bachman testified, “[E]very time we seen it

down, we automatically put it back up.” When the company “put it back up,” the

fence was taut across the trail. Tony Vieth testified his employees had to reset

the construction fence “well over one-hundred times.”
                                           5



       Kerns acknowledged Vieth did not install any closure signs at the trailhead

where Robeson had parked. He also explained, originally, Vieth had placed

orange barrels near the work zone to warn the public, but the company did not

replace them when vandals threw them in the river. Moreover, the location of the

access road, where Vieth’s equipment crossed the trail to the river worksite

during 2011 construction, was not visible from the point on the trail where

Robeson encountered the flattened fence.

       Due to flooding, the construction company did not complete the portage

project during the summer of 2011. Vieth suspended its work during the cold-

weather months in late 2011 and early 2012. Work had not yet resumed at the

time of Robeson’s accident on April 12, 2012. Neither Tony Vieth, Kerns, nor

Bachman could recall the last time they had checked on the fence before

Robeson fell. Kerns removed the fence from the trail after Robeson’s fall, and at

trial, he admitted the condition of the fence showed “neglect.”

       Robeson filed a negligence suit against Vieth on July 5, 2012.          The

petition alleged Robeson’s injury was caused by Vieth’s failure to “maintain the

plastic fencing in good condition and the failure to warn trail users of the

dangerous condition of the public way.” In its answer, Vieth affirmatively stated

“that third parties unknown were at fault for damaging the fence and that their

fault was a proximate cause of the plaintiff’s injuries.” Vieth further alleged “the

condition on the premises . . . was open and obvious,” thus, it had no obligation

to guard against it. Finally, Vieth’s answer also asserted Robeson assumed the

risk of injury by entering a construction site.
                                          6



       Vieth moved for summary judgment, alleging:

       Plaintiff was injured while trespassing into a closed construction
       site. A possessor of land owes no duty to a trespasser other than
       not to injure him willfully or wantonly, and to use reasonable care
       after his presence becomes known to avoid injuring him. . . . There
       is no evidence that Vieth willfully or wantonly injured the plaintiff or
       that, Vieth was aware of her presence or failed to act reasonably.

Vieth alternatively asserted:

       Even if this Court were to determine that a person stepping over a
       construction fence into a construction site were an invitee, a
       possessor of land owes no duty to warn an invitee of a known or
       obvious condition. . . . Plaintiff has admitted she knew the fence
       was there. The danger of tripping when stepping over a
       construction fence is obvious.

       The district court denied summary judgment, concluding: “The defendant’s

knowledge of the continuous trespassing and the state of the collapsed orange

fence raises a question for a jury to determine if the defendants used reasonable

care to avoid injuring the trespasser.”

       The matter proceeded to jury trial in early December 2014. After Robeson

rested her case on December 8, the district court granted Vieth’s motion for

directed verdict from the bench. The following day, the court filed a written order

further explaining its decision not to submit the case to the jury.         Robeson

challenges the court’s directed verdict on appeal.

II.    Scope and Standards of Review

       We review a district court’s ruling on a motion for directed verdict for the

correction of legal error. Figley, 801 N.W.2d at 609. The district court is required

to direct a verdict for the defense only if the record lacked substantial evidence to

support the elements of the plaintiff’s claim. Deboom v. Raining Rose, Inc., 772
                                         7



N.W.2d 1, 5 (Iowa 2009).         We consider the evidence substantial when

“reasonable minds would accept the evidence as adequate to reach the same

findings.” Id. A directed verdict is improper when reasonable minds could differ

on an issue; in that situation, “the case must go to the jury.” Id. We view the

evidence in the light most favorable to Robeson.       See Figley, 801 N.W.2d at

610.   “District courts are encouraged to deny motions for directed verdict,”

because it “is considered more prudent for the court to submit even a weak case

to the jury to avoid another trial in case of error.” Hill v. Damm, 804 N.W.2d 95,

98 (Iowa Ct. App. 2011).

III.   Analysis of Robeson’s Claims

       A. Trespasser

       As a threshold matter, Robeson contends the district court wrongly

labelled her a “trespasser” when she was walking on a public nature trail at a

time when the circumstances did not clearly show the trail was closed to the

public. Her status as a trespasser would dictate a higher bar in proving Vieth

negligent. See generally Sallee v. Stewart, 827 N.W.2d 128, 133 (Iowa 2013)

(observing Iowa premises-liability law generally limits the duty owed to a

trespasser “to avoiding willfully or wantonly careless conduct”).

       Our common law defines “trespasser” as “one who has no legal right to be

upon another’s land and enters the land without the express or implied consent

of the owner.” Alexander v. Med. Assocs. Clinic, P.C., 646 N.W.2d 74, 76 (Iowa

2002); see also Restatement (Second) of Torts § 329 (Am. Law Inst. 1965)

(defining trespasser as “a person who enters or remains upon land in the
                                            8



possession of another without a privilege to do so created by the possessor’s

consent or otherwise”) [hereinafter Restatement (Second)].3 “[O]ne who is where

[s]he has a right to be is not a trespasser.” Mann v. Des Moines Ry. Co., 7

N.W.2d 45, 51 (Iowa 1942).

       Robeson asserts she was not a trespasser because the Cedar Valley

Nature Trail was a public thoroughfare, and Vieth had not posted any signs or

barricades at the trailhead to signal that a section of the trail was closed to the

public. She relies on a theory of privilege: “A traveler is privileged to enter that

part of the land in the possession of another upon which there is a public

highway, in so far as his presence there is in the reasonable use of the highway.”

Restatement (Second) § 192 (including comment d, defining highways as

encompassing paths for pedestrian use and bicycle lanes).

       Robeson further argues she had implied consent to use the trail because

the “compressed fence invited people to continue using the trail and, in fact, the

public continued to use the trail.”         See Restatement (Third) § 50 cmt. d

(“[A]pparent consent can be difficult to determine.”). “In determining whether

[Vieth’s] conduct would be understood by a reasonable person as indicating

consent, the customs of the community are to be taken into account. This is

particularly true of silence or inaction.” See id.



3
  New to the Restatement (Third) is a distinction between the duties of care owed to a
“flagrant trespasser” and an “ordinary trespasser.” See Restatement (Third) of Torts:
Liab. for Physical & Emotional Harm § 52 (Am. Law Inst. 2012) [hereinafter Restatement
(Third)]. The drafters reasoned that a flagrant trespasser’s “presence on another’s land
is so antithetical to the rights of the land possessor . . . that the land possessor should
not be subject to liability for failing to exercise the ordinary duty of reasonable care
otherwise owed to them as entrants on the land.” Id. cmt. a.
                                         9



       We agree with Robeson that the evidence at trial did not establish her

status as a trespasser as a matter of law. The district court ruled Robeson was a

trespasser because “the premises were still a construction site, and, by express

provision of the construction contract, not open to the public.”4 But our case law

has long recognized a member of the public is not a trespasser if he or she is

injured at a location where the possessor has acquiesced in public use. See

Mann, 7 N.W. at 52 (holding plaintiff was rightfully using crossing where the

street car company had “impliedly invited” public use by lodging no objection).

Here, the condition of the fence—trampled down by previous trail users over the

winter months, discolored, and abandoned-looking—did not provide members of

the public, who were otherwise privileged to use the trail, with unambiguous

notice that the possessor, Vieth, had not acquiesced to public use and had

closed that segment of the trail for construction. “Where a plaintiff who is alleged

to have been a trespasser presents evidence that would, if believed, support a

finding that he or she was [a lawful visitor] at the time he or she was injured, the

plaintiff’s status is a question for the jury.” 62 Am. Jur. 2d Premises Liability

§ 121 Practice Guide (2016); see also Ambroz v. Cedar Rapids Elec. Light &

Power Co., 108 N.W. 540, 540 (Iowa 1906) (discussing propriety of jury



4
  The district court relied on Restatement (Second) section 329, comment c, which
explains the definition of trespasser and states, in pertinent part:
       So far as the liability of the possessor of the land to the intruder is
       concerned . . . the possessor’s duty, and liability, will be the same
       regardless of the manner of entry, so long as the entry itself is not
       privileged. The determining fact is the presence or absence of a privilege
       to enter or to remain on the land, and the status of an accidental
       trespasser is still that of a trespasser.
                                             10



instruction on whether plaintiff was trespasser); Eshoo v. Chicago Transit Auth.,

723 N.E.2d 339, 343 (Ill. Ct. App. 1999) (“Where, as here, a plaintiff’s status at

the time of his injury is disputed or different inferences may be drawn from

undisputed facts, the plaintiff's status as invitee or trespasser is a question of fact

for the jury.”).    The district court should have allowed the jury to determine

Robeson’s status. See Restatement (Third) § 50 cmt. e (“If there is a dispute

about . . . the appropriate factual inferences to be drawn from [the historical

facts] relevant to the plaintiff’s status as a trespasser, the jury must resolve the

dispute, find the facts, and determine the entrant’s status with appropriate

instructions.”).5

       B. Negligence

           1. In General

       To prove a defendant was negligent, a plaintiff must show the following:

“(1) the existence of a duty; (2) failure to exercise reasonable care; (3) factual

cause; (4) physical harm; and (5) harm within the scope of liability (previously

called ‘proximate cause’).”        Hill, 804 N.W.2d at 99 (applying Restatement

(Third)). While the first element is a question of law for the court to determine,

elements two through five “are factual questions to be determined by the fact

finder.” Id.; see also Asher v. OB-GYN Specialists, P.C., 846 N.W.2d 492, 498

(Iowa 2014) (stating the court erred in instructing jury on causation under the

“abandoned” Restatement (Second) standards rather than the scope-of-liability


5
  Restatement (Third) section 50 comment e also explains: “Unless the trial is bifurcated
and the plaintiff's status resolved separately from any alleged injury, alternative
instructions will be required, irrespective of whether the jury is to return a general verdict
or a special verdict.”
                                         11



standard in Restatement (Third)); Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832

N.W.2d 689, 699 (Iowa 2013) (“Scope-of-liability determinations are fact-

intensive, requiring consideration of the risks that make an actor’s conduct

tortious and a determination of whether the harm at issue is a result of any of

those risks.”).

       Although Vieth first lobbied for affirming the district court’s finding that

Robeson was a trespasser as a matter of law, it alternatively urges her

trespasser status is not essential to upholding the directed verdict on appeal—

“even under the lawful entrant standard, Vieth would not be liable for injury from

this open and obvious and known condition”—Robeson saw the condition of the

fence and “the need to navigate it. . . . She simply stumbled while doing so. . . .

There was no evidence that there was any dangerous condition about the fence

on the ground that Vieth should have known Robeson would not see and protect

herself from.”

           2. Premises Liability for Lawful Entrant

       In examining Vieth’s alternative argument, we start with the premises-

liability standard for a lawful entrant.      “A land possessor owes a duty of

reasonable care to entrants on the land with regard to (a) conduct by the land

possessor that creates risks to entrants on the land; [and] (b) artificial conditions

on the land that pose risks to entrants on the land . . . .” Restatement (Third)

§ 51; see generally Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 775-

78 (Iowa 2013) (applying Restatement (Third) in premises-liability case).
                                            12



       Here, Robeson alleges Vieth created an unreasonable risk of harm by not

maintaining the fence stretched across the trail. She argues on appeal: “Vieth

placed the fence across the trail. It knew the fence was there, and it knew the

fence did not remain erect, nor did it signal to pedestrians that the trail was

closed. Rather, it simply created a hazard.” Robeson’s argument is echoed in

the Restatement comments discussing the general duty of land possessors:

“While the conduct involved in constructing artificial conditions may have

occurred some time in the past and thus would not constitute ‘active operations,’

the possessor has, nevertheless, created a risk of harm for which the ordinary

duty of reasonable care is applicable.” Restatement (Third) § 51 cmt e.6

       The district court concluded no reasonable jury could find that Vieth had

“actual or constructive notice of the condition of the fence between the time it

was vandalized and the time of plaintiff’s accident.”           Robeson disputes this

conclusion, pointing to evidence Vieth’s employees knew the fence was torn

down with “great frequency” during the 2011 construction and supervisor Kerns’s

admission the fence’s dilapidated state in April 2012 was due to “neglect.”

       We disagree with the district court’s determination that, as a matter of law,

Vieth could not be held accountable because vandals damaged the fence at



6
  In Hoyt, 829 N.W.2d at 775, the Iowa Supreme Court cited to Thompson v. Kaczinski,
774 N.W.2d 829, 834-35 (Iowa 2009), and acknowledged Thompson’s adoption of “the
general duty formulation” of section 7 of the Restatement (Third), which section states:
“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm.” The Thompson court stated, “[I]n most cases involving
physical harm, courts need not concern themselves with the existence or content of this
ordinary duty, but instead may proceed directly to the elements of liability.” 744 N.W.2d
at 834 (citation omitted). Vieth recognizes the applicability of Thompson in its appellee’s
brief.
                                          13



“some unknown time.” When viewing the evidence in the light most favorable to

Robeson, we conclude she presented a jury question as to whether Vieth

exercised reasonable care in regard to monitoring the condition of the fence it

had stretched across the trail.        Vieth’s duty of reasonable care “includes

reasonable care to discover dangerous conditions on the land and to eliminate or

ameliorate them.” See id. cmt. i. The primary factors to consider in determining

whether Vieth exercised reasonable care “are the foreseeable likelihood of harm,

the foreseeable severity of any potential harm, and the burden required of the

land possessor to eliminate or reduce the risk.” See id. The land possessor’s

duty to inspect the premises depends on the existing circumstances.        Id.   If

dangerous conditions may crop up regularly and pose risk to entrants,

reasonable care may demand periodic inspections. Id. We conclude Robeson’s

evidence generated a jury question concerning Vieth’s duty to inspect and fix the

fence during its hiatus from construction.     See id. (“When reasonable minds

could differ about the facts or about whether, given those facts, reasonable care

was exercised, the issue is for the jury.”).

          3. Open-and-Obvious Hazards

       We next turn to Vieth’s argument concerning the open-and-obvious nature

of the dangerous condition posed by the flattened fence. “An obvious danger

means that both the condition and the risk are apparent to, and would be

recognized by, a reasonably prudent person.”         Baumler v. Hemesath, 534

N.W.2d 650, 653 (Iowa 1995).          The common law reflected in Restatement

(Second) section 343A(1) requires possessors of land to take reasonable
                                           14



precautions for known or obvious dangers when the possessor “should anticipate

the harm despite such knowledge or obviousness.” Our supreme court relied on

section 343A in concluding “negligence may exist even though a defect is, in fact,

open and obvious where the circumstances are such that there is reason to

believe . . . the risk of harm involved would not be anticipated or appreciated” by

the lawful visitor.7 See Hanson v. Town & Country Shopping Ctr., Inc., 144

N.W.2d 870, 875 (Iowa 1966). “In such circumstances there may be generated a

jury question as to whether the premises are reasonably safe.” Id. (overturning

directed verdict where plaintiff was injured after falling on ice in defendant’s

parking lot and stating a defect in the premises need not be “hidden or in the

nature of a trap or pitfall in order to constitute negligence”).

         It is true Robeson saw the flattened orange fence and tried to cross it with

care, while walking at a normal pace on the trail. But the open-and-obvious

nature of the hazard presented by the fence does not automatically relieve Vieth

of its duty toward trail users like Robeson. See Baumler, 534 N.W.2d at 653

(holding reasonable jury could find farm owners acted negligently toward

experienced farm worker who tripped in a tractor tire rut, though the rut

presented an open and obvious risk).            As in Baumler, Robeson’s evidence



7
    According to Restatement (Third) section 51 comment k:
         [Restatement (Second) section 343A(1)] requires possessors to take
         reasonable precautions for known or obvious dangers when the
         possessor “should anticipate the harm despite such knowledge or
         obviousness.” The duty imposed in [Restatement (Third) section 51 and
         amplified in comment k] is consistent with section 343A, although it is
         extended beyond the invitees covered in section 343A to all entrants on
         the land (except for flagrant trespassers under [Restatement (Third)]
         section 52).
                                          15



presented jury questions on whether Vieth could have or should have anticipated

that the construction fence, left unattended across the path, would have been

pushed down by vandals—as had been done scores of times in 2011—and

whether in its flattened state, the fence presented a tripping hazard to members

of the public who took to the trail in the spring of 2012.

       Vieth argues Robeson simply “didn’t pick her feet up high enough and

tripped.”   The company also contends Robeson presented “no evidence that

there was any dangerous condition about the fence on the ground that Vieth

should have known Robeson wouldn’t see and protect herself from.”              We

disagree.    A reasonable jury could determine the fence bore a deceptively

innocent appearance that obscured the extent of the tripping hazard posed by

the uneven plastic webbing. “[D]espite the opportunity of entrants to avoid an

open and obvious risk, in some circumstances a residual risk will remain. Land

possessors have a duty of reasonable care with regard to those residual risks.”

Restatement (Third) § 51 cmt. k.8 Rather than automatically precluding liability,



8
 Restatement (Third) section 51 comment k also discusses the disconnect between the
open-and-obvious doctrine as an absolute bar to recovery and comparative fault:
                An entrant who encounters an obviously dangerous condition and
      who fails to exercise reasonable self-protective care is contributorily
      negligent. Because of comparative fault, however, the issue of the
      defendant's duty and breach must be kept distinct from the question of the
      plaintiff’s negligence. The rule that land possessors owe no duty with regard
      to open and obvious dangers sits more comfortably—if not entirely
      congruently—with the older rule of contributory negligence as a bar to
      recovery.
The Reporter’s Note on comment k further expounded:
                The rule that a land possessor was not subject to liability for any
      open and obvious danger is much easier to justify in an era when
      contributory negligence constituted a complete bar to recovery. An
      entrant who fails to take self-protective measures may be contributorily
      negligent and, if so, that would avoid any liability by the possessor.
                                          16



the open-and-obvious nature of the condition “bears on the assessment” of

whether the land possessor exercised reasonable care. Id. (explaining “[w]hen

land is held open to the public and a high volume of entrants can be anticipated,

a reasonable possessor should anticipate greater risk, requiring greater

precaution than if the land is private or few entrants are likely”).

       When viewing these facts in the light most favorable to Robeson,

reasonable minds could differ on whether Vieth, as possessor of the nature trail

at the location leading up to its access road, acted negligently toward trail users

such as Robeson. See Hill, 804 N.W.2d at 104-05 (discussing and applying the

newly formulated risk standard in the Restatement (Third) and overturning

directed verdict).   Accordingly, we reverse the district court’s grant of Vieth’s

motion for directed verdict and remand the case for a new trial.9

       REVERSED AND REMANDED.




        However, such a rule cannot be justified after contributory negligence
        becomes a comparative defense. . . . In that respect, other earlier rules
        applicable to a land possessor’s duties appear premised on and
        incorporate contributory negligence as a complete defense to liability.
9
  Because we conclude Robeson is entitled to a new trial based on her common law
negligence claim, we need not address her appellate claims premised on a duty of care
allegedly owed to her under Vieth’s contract with the City of Waterloo or under the
Manual on Uniform Traffic Control Devices. We take no position on the viability of those
claims in the new trial.
