                 IN THE SUPREME COURT OF IOWA
                               No. 13–0778

                             Filed May 2, 2014


DAVID P. GARR JR. and JULIE A. GARR,

      Appellees,

vs.

CITY OF OTTUMWA, IOWA,

      Appellant.



      Appeal from the Iowa District Court for Wapello County, Daniel P.

Wilson, Judge.



      City appeals the district court’s denial of its motion for judgment

notwithstanding the verdict after the jury awarded the plaintiffs damages

for property damage allegedly caused by the City’s negligent storm water

management. REVERSED AND REMANDED.



      Mark W. Thomas and Robert J. Thole of Grefe & Sidney, P.L.C.,

Des Moines, for appellant.



      John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for

appellees.
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ZAGER, Justice.

      Property owners sued a city alleging the city negligently approved a

development that caused flooding to the downstream property owners’

home.   A jury returned a verdict in favor of the property owners and

awarded them damages. The district court then denied the city’s motion

for judgment notwithstanding the verdict, and the city appealed.      We

retained the appeal. For the reasons set forth below, we reverse.

      I. Background Facts and Proceedings.

      In the 1940s, the federal government constructed an officers’ club
at 3105 North Court Road in Wapello County, Iowa. At some point, the

club was remodeled into a residence. In 1971, the City of Ottumwa (the

City) annexed the property and the surrounding area. In 1980, the City

declared the property to be within a 100-year floodplain. In December

1997, David and Julie Garr purchased the property at 3105 North Court

Road to use as their residence.

      Located north-to-northwest of the Garrs’ residence is a golf course.

The golf course was constructed in the 1960s and was annexed by the

City in 1975. The City maintains the golf course. In 2001, an irrigation

pond was dug and a new sprinkler system was installed at the golf

course. Drainage tile on the golf course, damaged during the sprinkler

system installation, was also repaired. Storm water from the golf course

drains into Little Cedar Creek.

      Located northwest of the golf course and the Garrs’ property is

Quail Creek Addition. The City approved Quail Creek Addition in 1995,

and it sits on approximately forty-four acres of land. When the Garrs

bought their home in 1997, only a few houses had been constructed at

Quail Creek Addition.    Since approval of the addition, approximately

twenty-eight homes have been constructed in the addition, most of them
                                    3

after 2000.   Storm water from Quail Creek Addition drains into Little

Cedar Creek, which lies south of the addition.

      Located to the south of the Garrs’ residence, approximately sixty-

four feet from the Garrs’ garage, is Little Cedar Creek. The creek flows

behind Quail Creek Addition, through the golf course in a southeasterly

direction, behind the Garrs’ residence, and ultimately through a box

culvert under state-owned Highway 63/149.        The highway sits to the

east of the Garrs’ residence and runs in a north–south direction. The

distance from the Garrs’ garage to the shoulder of Highway 63/149 is
about sixty-eight feet.

      Like water from Quail Creek Addition, water from the Garrs’

property and the golf course drains into Little Cedar Creek. In all, the

Little Cedar Creek watershed (the area of land from which all of the water

drains to the same place) is made up of about 2075 acres. Quail Creek

Addition comprises about two percent of the total watershed.

      According to David Garr, from the time the Garrs purchased their

home until 2002, Little Cedar Creek rose above its bank a couple of

times each year, and the Garrs occasionally had a trickle of water into

their basement. In 2002, the Garrs waterproofed and remodeled their

basement. Two years later they began to experience problems from the

flooding of Little Cedar Creek. Each year, flooding from the creek would

get worse, with the water from the creek rising farther above its banks.

Water eventually permeated the ground and put pressure on their

basement wall.

      The Garrs estimated that between 2004 and 2010, they had water

in their basement at least 100 different times.    In 2010 alone, David

estimated there was at least one foot of water in their basement on at

least twenty-five different occasions.   On one occasion in 2008, water
                                    4

filled the Garrs’ basement to its seven-foot ceiling. On this occasion, the

Garrs filed an insurance claim and received $5000.         They used the

money to clean up the basement and replace damaged property.

      David estimated that at least a dozen times between 2008 and

2010, he spoke with Keith Caviness, a member of the Ottumwa City

Council. According to Caviness, however, he spoke with David one time

in 2008 and not again until August 2010.        When they spoke, David

asked Caviness to have the City investigate the flooding problem.

      David also tried to contact the Ottumwa Public Works director on
multiple occasions, speaking with him just once in April 2010.

According to David, despite a general agreement to have an employee

come to the Garrs’ property and examine Little Cedar Creek, the City

never sent anyone from the public works department to investigate the

flooding.

      The public works director, Larry Seals, testified he came to the

Garrs’ property sometime in 2010. During this encounter, Seals fielded

David’s suggestion that the City clear the creek and straighten it.

According to Seals, he explained to David that straightening the creek

would decrease the time it would take for creek water to get to the culvert

under the highway, thereby increasing the peak water level and causing

flooding. In response to David’s further suggestion that the City clean

out the culvert, Seals explained the culvert was under the jurisdiction of

the Iowa Department of Transportation and David would have to ask the

department to clean the culvert.

      On August 10, 2010, water from Little Cedar Creek flooded the

Garrs’ backyard and filled their basement. Despite David’s calls to Larry

Seals and Keith Caviness, nobody from the City came to his property.

On August 20, a major rainstorm hit Ottumwa and the surrounding
                                     5

area. Around 4:30 p.m. on this date, after returning to Ottumwa from a

trip, David Garr received a frantic call from his wife, Julie. Julie, who

was on her way to the couple’s home, could not get to the house because

water on the road blocked her path.         David estimated that when he

arrived about fifteen minutes later, the water on Highway 63/149 was

twenty-five feet deep. The water around the couple’s home had risen to

the doorknob on the front door. The flooding caused extensive damage.

      In August 2010, parts of Iowa, including Wapello County where

Ottumwa is located, were declared a disaster area. The declaration made
disaster assistance available under the aegis of the Federal Emergency

Management Agency (FEMA) for areas struck by severe storms and

flooding between June 1, 2010, and August 31, 2010. The Garrs applied

for and received about $30,000 in disaster assistance because of damage

to their home and personal property caused by flooding. Estimates of

the total cost to repair the Garrs’ home were around $145,000.

      In October 2011, the Garrs filed a lawsuit against the City. They

alleged the City negligently managed storm water by approving Quail

Creek Addition, by failing to establish storm water detention projects at

Quail Creek Addition and the golf course, and by failing to comply with

storm water management policies.         After the district court denied the

City’s motion for summary judgment, the case proceeded to trial.         At

trial, the Garrs presented exhibits and testimony from several witnesses,

including an expert who testified about causation. After the Garrs rested

their case, the City moved for a directed verdict, but the district court

reserved its ruling. After the close of all the evidence, the City renewed

its motion for a directed verdict.   The district court again reserved its

ruling and submitted the case to the jury, which returned a verdict in

favor of the Garrs.   The jury awarded the Garrs damages of $84,400.
                                          6

The City’s motion for judgment notwithstanding the verdict or a new trial

was denied.

       The City timely appealed, and we retained the appeal.

       II. Issues on Appeal.

       The City appeals on several grounds.                First, the City argues the

Garrs’ claim is barred by the fifteen-year statute of repose contained in

Iowa Code section 614.1(11) (2011).               Second, the City argues it is

immune under three separate provisions of Iowa’s Municipal Tort Claims

Act: section 670.4(3) (exempting any municipality from liability for
discretionary functions), section 670.4(8) (exempting any municipality

from liability for claims arising from negligent design or specification of

public improvements or facilities that were constructed according to

generally     recognized    engineering       criteria),    and   section   670.4(10)

(exempting any municipality from liability for an officer or employee’s act

or omission in issuing a permit if the damage was caused by an event

outside the municipality’s control). See Iowa Code § 670.4(3), (8), (10).1

Third, the City argues the Garrs’ expert’s testimony was insufficient to

establish a causal connection between the City’s allegedly negligent

conduct and the Garrs’ damages.                Finally, the City argues it was

prejudiced by improperly admitted evidence and statements made by

plaintiffs’ counsel during closing arguments.                 Because we find the

causation issue dispositive, “we address only that issue.”2 See Gerst v.



       1In   2013, as part of nonsubstantive code corrections, Iowa Code section 670.4
underwent renumbering. See 2013 Iowa Acts ch. 30, § 196. The renumbered sections
corresponding to those under which the City sought immunity are section 670.4(1)(c),
(h), and (j). See id.
       2The City did not argue on appeal that the Garrs failed to establish the City
breached its duty of care. Therefore, we assume for purposes of this appeal that the
City breached its duty of care.
                                    7

Marshall, 549 N.W.2d 810, 813 (Iowa 1996) (addressing only the issue of

causation when it was found to be dispositive).

      III. Standard of Review.

      We review a district court’s ruling denying a motion for judgment

notwithstanding the verdict for correction of errors at law. Royal Indem.

Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 846 (Iowa 2010).         On

review, we “determine whether sufficient evidence existed to justify

submitting the case to the jury at the conclusion of the trial.”    Lee v.

State, 815 N.W.2d 731, 736 (Iowa 2012). To justify submitting the case
to the jury, substantial evidence must support each element of the

plaintiff’s claim. Van Sickle Constr. Co. v. Wachovia Commercial Mortg.,

Inc., 783 N.W.2d 684, 687 (Iowa 2010). “Evidence is substantial when

reasonable minds would accept the evidence as adequate to reach the

same findings.”   Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 790

(Iowa 2009).   We view “the evidence in the light most favorable to the

nonmoving party.” Id.

      IV. Discussion.

      In a negligence cause of action, the plaintiff must prove causation.

See Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007) (calling causation “an

essential element” in a negligence cause of action).    Until recently, we

described causation as consisting of two components: cause in fact and

proximate, or legal, cause. See, e.g., Sweeney v. City of Bettendorf, 762

N.W.2d 873, 883 (Iowa 2009) (noting “that causation has two

components: cause in fact and legal cause”); Faber, 731 N.W.2d at 7. We

no longer refer to proximate or legal cause; instead, we use a different

formulation, scope of liability. See Thompson v. Kaczinski, 774 N.W.2d

829, 839 (Iowa 2009) (adopting the scope-of-liability concept).
                                     8

      To determine whether the defendant in fact caused the plaintiff’s

harm, we apply a “but-for” test.     Berte v. Bode, 692 N.W.2d 368, 372

(Iowa 2005). Under that test,

      “the defendant’s conduct is a cause in fact of the plaintiff’s
      harm if, but-for the defendant’s conduct, that harm would
      not have occurred. The but-for test also implies a negative.
      If the plaintiff would have suffered the same harm had the
      defendant not acted negligently, the defendant’s conduct is
      not a cause in fact of the harm.”

Id. (quoting Dan B. Dobbs, The Law of Torts § 168, at 409 (2000)

[hereinafter Dobbs, The Law of Torts]); accord Yates v. Iowa W. Racing
Ass’n, 721 N.W.2d 762, 774 (Iowa 2006).

      Causation is ordinarily a jury question. Thompson, 774 N.W.2d at

836. In some cases, however, causation may be decided as a matter of

law. See, e.g., Faber, 731 N.W.2d at 11 (deciding as a matter of law there

was no causation between attorney’s negligence and the damages sought

by the plaintiff); Gerst, 549 N.W.2d at 818–19 (upholding district court’s

grant of summary judgment where plaintiffs failed to produce sufficient

evidence on causation).

      Cause in fact must exist between the City’s negligence and the

damages sought by the Garrs. See Faber, 731 N.W.2d at 7 (explaining a

causal connection must exist between defendant’s breach and the

damages sought by the plaintiff).     To assess the existence of a causal

connection, we begin with the claims of negligence on which the jury was

instructed.    See id. at 7–11 (analyzing for a causal connection with

damages each of four negligence claims on which the jury was

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

(“Before reviewing the evidence of causation, it is helpful to note the

specifications of negligence that were claimed to have caused the

plaintiff’s injury.”).   In this case, the jury was instructed the Garrs
                                       9

alleged the City was negligent by failing to: (1) protect downstream

property owners from increased water flow due to development approved

by the City that led to the Garrs’ flooding and property damage;

(2) establish storm water detention projects to protect the Garrs and

other downstream property owners from increased water flow caused by

development approved and managed by the City; and (3) comply with its

policies regarding storm water management and flooding.               We now

evaluate the evidence presented to support the Garrs’ claims these

negligent acts caused their injuries.          See Faber, 731 N.W.2d at 7;
Hasselman, 596 N.W.2d at 546.

      To establish causation, the Garrs presented the expert testimony of

Dr. Stewart Melvin, a former college professor who specializes in

hydrology,   the   study    of   water’s   movement    in   the   environment.

Dr. Melvin testified that he had evaluated Quail Creek Addition’s water

control measures and found water from the addition discharges into

Little Cedar Creek.   When asked by the Garrs’ counsel whether Quail

Creek Addition had an effect on Little Cedar Creek, Dr. Melvin

responded, “It’s had some. I can’t tell exactly how much right now, but

it’s had some.”    On cross-examination, the City’s counsel established

Dr. Melvin   had   not     performed   exact    calculations   supporting   his

conclusion that developing Quail Creek Addition had an effect; rather,

Dr. Melvin relied on his estimations of water depths and flow in the area.

      Those estimates were presented in a report prepared by Dr. Melvin

that was entered into evidence at the trial.        The report concedes not

having specific information about sizes of culverts, ponds, and other

landmarks in the area surrounding the Garrs’ home because it relied on

aerial photos.     Nevertheless, the report estimates “peak flows from

different sized storms in the 2000-acre watershed [north of] the US
                                     10

Highway 63[/149] box culvert directly [southeast of] Mr. Garr’s house.”

According to the report, if a rainstorm dropped 5.5 inches of rain in

twenty-four hours, which according to the report would result in a

twenty-five-year flood, flooding would occur to the first floor of the Garrs’

home. If it rained 6.1 inches in twenty-four hours, which according to

the report would result in a fifty-year flood, the first floor of the Garrs’

home would be flooded with three feet of water. In the report, Dr. Melvin

acknowledged his understanding that the flood underlying the Garrs’

lawsuit “put approximately 4 [feet] of water above the floor of the Garr
residence and water was running over the road.” The report thus implies

the storm that struck the Ottumwa area on August 20, 2010, dropped

more than 6.1 inches of rain in twenty-four hours.

      On cross-examination, Dr. Melvin admitted he had heard reports

that as much as ten inches of rain fell on the 2000-acre watershed on

August 20, 2010.        If true, that amount of rainfall would have far

exceeded a 100-year-flood event, which, according to Dr. Melvin’s report,

was a storm during which 6.8 inches of rain falls in twenty-four hours.

The report makes clear that 6.8 inches of rain in twenty-four hours

would have caused water from the creek to flow over US Highway

63/149.

      Evidence confirmed water did flow over US Highway 63/149 on

August 20, 2010.     The water was deep enough to enable (or require)

sheriff’s deputies to use jet skis to rescue flood victims. In fact, David

estimated the water on the highway was twenty-five feet deep.            The

evidence confirms a significant, rare rainstorm occurred in the area of

the Garrs’ home on August 20, 2010.

      The City’s counsel challenged Dr. Melvin with this evidence. The

City’s counsel asked:
                                        11
              Q. [W]ould you agree with me that if, in fact, there . . .
       was 10 inches of rain that fell in a very short period of time
       in that drainage area, then there was going to be water in the
       plaintiff’s home no matter what? A. Yes.

             Q. No matter whether Quail Creek [Addition] existed or
       not; correct? A. Yes.

Before the City’s attorney could ask another question, Dr. Melvin broke

in: “Let me qualify.       If there was 10 inches of rainfall in that period,

probably when you get that kind of a quantity, the effects of hardly

anything makes any difference. It’s just the rainfall.”

       However, there may be more than one cause in fact of a plaintiff’s
damages. See State v. Hennings, 791 N.W.2d 828, 836 (Iowa 2010) (“ ‘An

actor’s tortious conduct need only be a factual cause of the other’s

harm.’ ” (quoting Restatement (Third) of Torts § 26 cmt. c, at 347

(2010))); Dobbs, The Law of Torts § 168, at 410 (“Nothing is the result of

a single cause in fact.”); see also, e.g., Stevens v. Des Moines Indep. Cmty.

Sch. Dist., 528 N.W.2d 117, 118, 119–21 (Iowa 1995) (holding district

court erred in giving instruction on superseding cause when plaintiff

alleged school failed to adequately supervise hall monitor who assaulted

the plaintiff). Thus, the major rainstorm is not, in and of itself, a cause

that relieves the City of its liability for the Garrs’ damages. There is no

evidence, however, that the City’s negligence caused the Garrs’ damages.

       The question posed to Dr. Melvin by the City’s counsel, a

counterfactual, goes to the core of the but-for causation test. See Faber,

731 N.W.2d at 11 (concluding that although an attorney negligently

drafted an illegal stipulation in a qualified domestic relations order, the

damages would have been the same if the attorney had drafted a legal

stipulation); see also David W. Robertson, The Common Sense of Cause in

Fact, 75 Tex. L. Rev. 1765, 1770 (1997) (explaining the but-for causation

test   requires   “using     the   imagination   to   create   a   counterfactual
                                   12

hypothesis”).    In other words, Dr. Melvin’s answers confirmed that no

reasonable efforts by the City to control upstream drainage, or other

flood control measures, could have prevented the flooding to the Garrs’

property in such a heavy rain event. Therefore, the damage to the Garrs’

property, which the evidence established sat in a 100-year floodplain,

would have occurred regardless of any negligence by the City. See Berte,

692 N.W.2d at 372 (“ ‘If the plaintiff would have suffered the same harm

had the defendant not acted negligently, the defendant’s conduct is not a

cause in fact of the harm.’ ” (quoting Dobbs, The Law of Torts § 168, at
409)).     Hence, Dr. Melvin’s testimony suggests the City’s negligent

approval of Quail Creek Addition and its management of storm water

were not actual causes of the Garrs’ damages.        Thus, although Dr.

Melvin presented expert testimony on the causal connection between the

City’s negligent approval of Quail Creek Addition and the Garrs’

damages, the testimony was insufficient to create a jury question.

         Though he offered his opinion about drainage control measures

that could be used on a golf course, Dr. Melvin never testified about any

causal connection between the sprinkler system, the irrigation pond, and

the drainage tiles added to the golf course in 2001 and the Garrs’

damages. Expert testimony is not necessary to establish causation in all

negligence cases. See, e.g., Vaughn v. Ag Processing, Inc., 459 N.W.2d

627, 636 (Iowa 1990) (“Questions of causation which are beyond the

understanding of a layperson require expert testimony.”).       We have

explained that “it is unnecessary to present expert testimony on

causation in those situations in which the subject ‘is within the common

experience of laypersons.’ ” Estate of Long ex rel. Smith v. Broadlawns

Med. Ctr., 656 N.W.2d 71, 83 (Iowa 2002) (quoting Welte v. Bello, 482

N.W.2d 437, 441 (Iowa 1992)), abrogated on other grounds by Thompson,
                                    13

774 N.W.2d at 839. On the other hand, when the connection between

the defendant’s negligence and the plaintiff’s harm is not within the

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

expert testimony to create a jury question on causation.”        Doe, 766

N.W.2d at 793.

         Courts have found that establishing a causal link between the

topographical changes and flooding requires expert testimony.          See

Hendricks v. United States, 14 Cl. Ct. 143, 149 (1987) (“Causation of

flooding is a complex issue which must be addressed by experts.”);
Herriman v. United States, 8 Cl. Ct. 411, 420 (1985) (discounting the

testimony of laypeople in relation to expert testimony in a flooding case);

Davis v. City of Mebane, 512 S.E.2d 450, 453 (N.C. Ct. App. 1999)

(holding expert testimony necessary to establish dam caused flooding).

We believe the issue whether the flooding that damaged the Garrs’

property was caused by approval of a residential development and

alterations to a golf course is beyond the common understanding of a

juror.    Therefore, expert testimony on causation was required.       See

Vaughn, 459 N.W.2d at 636. Dr. Melvin testified as to the alterations to

the golf course, but he offered no testimony about the causal connection

between those alterations and the Garrs’ damages. Because there was

no expert testimony of any sort on this causal connection, the evidence

on causation was insufficient. See Gerst, 549 N.W.2d at 819 (explaining

an expert must, at a minimum, testify there was a possibility of a causal

connection between negligence and damages); Vaughan, 459 N.W.2d at

637 (concluding evidence was insufficient to establish causation when

plaintiff failed to present expert testimony on an issue for which it was

required).
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        In sum, given Dr. Melvin’s testimony the flooding that damaged the

Garrs’ property would have occurred regardless of whether Quail Creek

Addition was built and the Garrs’ failure to present expert testimony that

the City’s other negligent conduct caused their damages, there was not

substantial evidence from which a jury could conclude the City’s

negligence caused the Garrs’ damages. Cf. Steuben v. City of Lincoln, 543

N.W.2d 161, 163–64 (Neb. 1996) (concluding plaintiffs failed to prove

proximate cause because they offered no proof that the city’s approval of

developments and golf course irrigation increased surface water drainage
during a flood). We therefore conclude the district court erred by denying

the City’s motion for judgment notwithstanding the verdict.

        V. Conclusion.

        As substantial evidence in the record did not support causation,

there was insufficient evidence to support submitting the case to the

jury. Therefore, the district court erred by denying the City’s motion for

judgment notwithstanding the verdict. We reverse the judgment entered

by the district court and remand for entry of judgment in favor of the

City.

        REVERSED AND REMANDED.
