               IN THE SUPREME COURT OF IOWA
                                No. 08–0647

                          Filed November 13, 2009


CHARLES W. THOMPSON and
KARYL J. THOMPSON,

      Appellants,

vs.

JAMES F. KACZINSKI and
MICHELLE K. LOCKWOOD,

      Appellees.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Madison County, Darrell J.

Goodhue, Judge.



      Plaintiffs appeal from a summary judgment ruling dismissing their

personal injury claims.       COURT OF APPEALS DECISION VACATED;

DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN
PART, AND CASE REMANDED.



      Randy V. Hefner and Matthew J. Hemphill of Hefner & Bergkamp,

P.C., Adel, for appellants.



      Sharon Soorholtz Greer and Melinda G. Young of Cartwright,

Druker & Ryden, Marshalltown, for appellees.
                                   2

HECHT, Justice.

        A motorist lost control of his car on a rural gravel road and

crashed upon encountering a trampoline that had been displaced by the

wind from an adjoining yard to the surface of the road.      He and his

spouse sued the owners of the trampoline.     The district court granted

summary judgment, concluding the defendants owed no duty to the

motorist under the circumstances and the personal injuries resulting

from the crash were not proximately caused by the defendants’ alleged

negligence. As we conclude the district court erred in granting summary

judgment, we reverse and remand this case for trial.

        I. Factual and Procedural Background.

        James Kaczinski and Michelle Lockwood resided in rural Madison

County, near Earlham, on property abutting a gravel road. During the

late summer of 2006, they disassembled a trampoline and placed its

component parts on their yard approximately thirty-eight feet from the

road.    Intending to dispose of them at a later time, Kaczinski and

Lockwood did not secure the parts in place. A few weeks later, on the

night of September 16 and morning of September 17, 2006, a severe

thunderstorm moved through the Earlham area. Wind gusts from the

storm displaced the top of the trampoline from the yard to the surface of

the road.

        Later that morning, while driving from one church to another

where he served as a pastor, Charles Thompson approached the

defendants’ property. When he swerved to avoid the obstruction on the

road, Thompson lost control of his vehicle. His car entered the ditch and

rolled several times.    Kaczinski and Lockwood were awakened by

Thompson’s screams at about 9:40 a.m., shortly after the accident.

When they went outside to investigate, they discovered the top of their
                                     3

trampoline lying on the roadway. Lockwood dragged the object back into

the yard while Kaczinski assisted Thompson.

      Thompson and his wife filed suit, alleging Kaczinski and Lockwood

breached statutory and common law duties by negligently allowing the

trampoline to obstruct the roadway. Kaczinski and Lockwood moved for

summary    judgment,    contending   they     owed   no   duty   under   the

circumstances because the risk of the trampoline’s displacement from

their yard to the surface of the road was not foreseeable. The district

court granted the motion, concluding Kaczinski and Lockwood breached

no duty and the damages claimed by the plaintiffs were not proximately

caused by the defendants’ negligence.     The Thompsons appealed.        We

transferred the case to the court of appeals, which affirmed the district

court’s ruling. We granted the Thompsons’ application for further review.

      II. Scope of Review.

      We review a district court’s grant of summary judgment for

correction of errors at law. Iowa R. App. P. 6.907; Clinkscales v. Nelson

Sec., Inc., 697 N.W.2d 836, 840–41 (Iowa 2005). Summary judgment is

appropriate only if there is “no genuine issue as to any material fact” and

“the moving party is entitled to a judgment as a matter of law.” Iowa R.

Civ. P. 1.981(3).   The party seeking the summary judgment has the

burden of proof, and the court considering a motion for summary

judgment must view the evidence in the light most favorable to the

nonmoving party. Clinkscales, 697 N.W.2d at 841.

      It is well-settled that “questions of negligence or proximate cause

are ordinarily for the jury,” and “only in exceptional cases should they be

decided as a matter of law.” Id.; see also Virden v. Betts & Beer Constr.

Co., 656 N.W.2d 805, 807 (Iowa 2003) (noting summary judgment is

usually inappropriate in negligence cases).
                                     4

        III. Discussion.

        A. Iowa Code Section 318.3. The Thompsons contend Kaczinski

and Lockwood breached a statutory duty to avoid obstructing a highway

right-of-way. See 2006 Iowa Acts ch. 1097, § 3 (codified at Iowa Code

§ 318.3 (2007)).    Section 318.3 provides a person “shall not place, or

cause to be placed, an obstruction within any highway right-of-way.” An

“obstruction” is defined as “an obstacle in the highway right-of-way or an

impediment or hindrance which impedes, opposes, or interferes with free

passage along the highway right-of-way.”      Iowa Code § 318.1(4).   It is

undisputed that the defendants’ trampoline was in the road and that the

defendants did not intend for the trampoline to be there at the time of

the crash.    The district court concluded that because the defendants’

failure to secure their trampoline and prevent its displacement to the

roadway was unintentional, their actions did not violate the statute. The

Thompsons contend this was error and that the phrase “cause to be

placed” is intended to address acts that unintentionally result in an

obstruction of the highway. We disagree.

        When a statute or rule is plain and its meaning is clear, the rules

of statutory construction do not permit courts to search for meaning
beyond its express terms. State v. Snyder, 634 N.W.2d 613, 615 (Iowa

2001). We generally presume words contained in a statute are used in

their ordinary and usual sense with the meaning commonly attributed to

them.    Am. Home Prods. Corp. v. Iowa State Bd. of Tax Review, 302

N.W.2d 140, 143 (Iowa 1981).         When not defined in a statute, we

construe a term according to its accepted usage. Id. We resort to rules

of statutory construction when the explicit terms of a statute are

ambiguous. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa

1999). Ambiguity is found in a statute “if reasonable minds could differ
                                        5

or be uncertain as to the meaning of the statute.” Carolan v. Hill, 553

N.W.2d 882, 887 (Iowa 1996).          In this case, reasonable minds could

disagree whether the phrase “cause to be placed” addresses only

intentional    conduct   or   if   conduct   resulting   in   an   unintentional

obstruction is also covered.         Accordingly, we shall apply our well-

established rules in interpreting the ambiguous phrase.

      Our goal in interpreting a statute is to ascertain legislative intent.

Iowa Ass’n of Sch. Bds. v. Iowa Dep’t of Educ., 739 N.W.2d 303, 309

(Iowa 2007). In determining legislative intent we consider not only the

words used by the legislature, but also the statute’s “subject matter, the

object sought to be accomplished, the purpose to be served, underlying

policies, . . . and the consequences of various interpretations.” State v.

Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). We look to the context in

which the ambiguous phrase is used and consider its relationship to

associated words and phrases. T & K Roofing Co. v. Iowa Dep’t of Educ.,

593 N.W.2d 159, 163 (Iowa 1999). We give “a plain, ordinary meaning to

words, phrases, and punctuation” and presume “that no part of an act is

intended to be superfluous.” TLC Home Health Care, L.L.C. v. Iowa Dep’t

of Human Servs., 638 N.W.2d 708, 713 (Iowa 2002).

      The Thompsons contend the prohibition on placing an obstruction

addresses intentional conduct while the prohibition on causing to be

placed addresses unintentional conduct. They posit that if the statute is

not interpreted in this way, the phrase “cause to be placed” is rendered

superfluous.

      While the Thompsons’ reading of the statute is certainly a plausible

interpretation, we are not convinced the phrase “cause to be placed” is

rendered superfluous if it addresses intentional behavior. Consider the

example of two landowners. One landowner builds a fence herself within
                                    6

the highway right-of-way.     The other landowner hires a contractor to

build a fence in the highway right-of-way.        In the first instance, the

landowner has placed the obstruction herself, while in the second

scenario, she has caused the obstruction to be placed.            Both are

arguably intentional acts.    We conclude the legislature included the

phrase “cause to be placed” to prevent a person from avoiding liability by

simply hiring someone else to do the “placing.”

      A review of the entire statutory scheme further convinces us the

legislature did not intend to address negligent or unintentional behavior.

Iowa Code section 318.12 gives the highway authority the ability to

“enforce the provisions of this chapter by appropriate civil or criminal

proceeding” or both. Section 318.6 provides any person who places or

causes an obstruction to be placed “is deemed to have created a public

nuisance punishable as provided in chapter 657.”             Section 657.3

provides a person found guilty of causing a public nuisance “shall be

guilty of an aggravated misdemeanor.” We are not inclined to interpret

section 318.3 in a way that would result in punishing ordinary

negligence as an aggravated misdemeanor—a necessary result of

interpreting the statute as the Thompsons urge.            Accordingly, we

conclude the district court correctly determined that under the facts

presented here, section 318.3 does not impose a duty upon Lockwood

and Kaczinski to refrain from negligently causing an obstruction to be

placed in the right-of-way.

      B.   Common Law Duty.          An actionable claim of negligence

requires “ ‘ “the existence of a duty to conform to a standard of conduct

to protect others, a failure to conform to that standard, proximate cause,

and damages.” ’ ” Stotts v. Eveleth, 688 N.W.2d 803, 807 (Iowa 2004)

(quoting Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa
                                    7

1999)). Plaintiffs contend Kaczinski and Lockwood owed a common law

duty to exercise reasonable care to prevent their personal property from

obstructing the roadway and to remove their property from the roadway

within a reasonable time after it became an obstruction. Whether a duty

arises out of a given relationship is a matter of law for the court’s

determination. Shaw v. Soo Line R.R., 463 N.W.2d 51, 53 (Iowa 1990).

      Our cases have suggested three factors should be considered in

determining whether a duty to exercise reasonable care exists: “ ‘(1) the

relationship between the parties, (2) reasonable foreseeability of harm to

the person who is injured, and (3) public policy considerations.’ ” Stotts,

688 N.W.2d at 810 (quoting J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C.,

589 N.W.2d 256, 258 (Iowa 1999)); accord Leonard v. State, 491 N.W.2d

508, 510–12 (Iowa 1992) (discussing relationship between the parties,

foreseeability of harm to the plaintiff, and public policy considerations

when determining if a psychiatrist owed a duty to protect members of the

public from the violent behavior of a patient).   Our previous decisions

have characterized the proposition that the relationship giving rise to a

duty of care must be premised on the foreseeability of harm to the

injured person as “a fundamental rule of negligence law.”       Sankey v.

Richenberger, 456 N.W.2d 206, 209–10 (Iowa 1990). The factors have not

been viewed as three distinct and necessary elements, but rather as

considerations employed in a balancing process. Stotts, 688 N.W.2d at

810. “In the end, whether a duty exists is a policy decision based upon

all relevant considerations that guide us to conclude a particular person

is entitled to be protected from a particular type of harm.” J.A.H., 589

N.W.2d at 258.

      The role of foreseeability of risk in the assessment of duty in

negligence actions has recently been revisited by drafters of the
                                           8

Restatement (Third) of Torts. “An actor ordinarily has a duty to exercise

reasonable care when the actor’s conduct creates a risk of physical

harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90

(Proposed Final Draft No. 1, 2005) [hereinafter Restatement (Third)]. 1

Thus, in 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 set forth in

section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will

apply in most cases, and thus courts “can rely directly on § 6 and need

not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

       However, in exceptional cases, the general duty to exercise

reasonable care can be displaced or modified. Id. § 6 cmt. f, at 81–82.

An exceptional case is one in which “an articulated countervailing

principle or policy warrants denying or limiting liability in a particular

class of cases.” Id. § 7(b), at 90. In such an exceptional case, when the

court rules as a matter of law that no duty is owed by actors in a

category of cases, the ruling “should be explained and justified based on

articulated policies or principles that justify exempting [such] actors from

liability or modifying the ordinary duty of reasonable care.” Id. § 7 cmt. j,
at 98. Reasons of policy and principle justifying a departure from the

general duty to exercise reasonable care do not depend on the

foreseeability of harm based on the specific facts of a case. Id. “A lack of



       1The  substance of the Proposed Final Draft No. 1 of the Restatement (Third) of
Torts has been finally approved by both the American Law Institute’s Council and its
membership (with the exception of two comments which are not relevant to our analysis
or disposition in this case). The draft has not been published in final form because the
American Law Institute has expanded the project to include chapters on emotional
harm and landowner liability. Upon completion of the additional chapters, the final text
will    be    published.         American      Law     Institute,    Current    Projects,
http://www.ali.org/index.cfm?fuseaction=projects.proj_ip&projectid=16.
                                      9

foreseeable risk in a specific case may be a basis for a no-breach

determination, but such a ruling is not a no-duty determination.” Id.

        The assessment of the foreseeability of a risk is allocated by the

Restatement (Third) to the fact finder, to be considered when the jury

decides if the defendant failed to exercise reasonable care.

        Foreseeable risk is an element in the determination of
        negligence. In order to determine whether appropriate care
        was exercised, the factfinder must assess the foreseeable
        risk at the time of the defendant’s alleged negligence. The
        extent of foreseeable risk depends on the specific facts of the
        case and cannot be usefully assessed for a category of cases;
        small changes in the facts may make a dramatic change in
        how much risk is foreseeable. . . . [C]ourts should leave
        such determinations to juries unless no reasonable person
        could differ on the matter.

Id. at 97–98. The drafters acknowledge that courts have frequently used

foreseeability in no-duty determinations, but have now explicitly

disapproved the practice in the Restatement (Third) and limited no-duty

rulings to “articulated policy or principle in order to facilitate more
transparent explanations of the reasons for a no-duty ruling and to

protect the traditional function of the jury as factfinder.” Id. at 98–99.

We find the drafters’ clarification of the duty analysis in the Restatement

(Third) compelling, and we now, therefore, adopt it.

        The district court clearly considered foreseeability in concluding

the defendants owed no duty in this case.        When the consideration of

foreseeability is removed from the determination of duty, as we now hold

it should be, there remains the question of whether a principle or strong

policy consideration justifies the exemption of Kaczinski and Lockwood—

as part of a class of defendants—from the duty to exercise reasonable

care.   We conclude no such principle or policy consideration exempts

property owners from a duty to exercise reasonable care to avoid the
                                    10

placement of obstructions on a roadway.       In fact, we have previously

noted the public’s interest in ensuring roadways are safe and clear of

dangerous obstructions for travelers:

            While an abutting landowner is not liable with
      respect to highway hazards over which he has no control,
      he is under an obligation to use reasonable care to keep his
      premises in such condition as not to create hazards in the
      adjoining highway. He must conduct operations on his
      land in such a manner as not to injure the highway
      traveler.

Weber v. Madison, 251 N.W.2d 523, 527 (Iowa 1977) (citation omitted);

see also Fritz v. Parkison, 397 N.W.2d 714, 715 (Iowa 1986) (noting

public policy to keep highways free from obstructions and hazards is

well-developed and clearly recognized); Stewart v. Wild, 196 Iowa 678,

683, 195 N.W. 266, 269 (1923) (“It is the fundamental law of the

highway that it is subject to the use of the traveling public, and that it

must be kept free from such obstructions as are not incident to its use

for travel.”).   Accordingly, we conclude the district court erred in

determining Kaczinski and Lockwood owed no common law duty under

the circumstances presented here.

      C. Causation. Although the memorandum filed by Kaczinski and

Lockwood in support of their motion for summary judgment raised only

the questions of whether a duty was owed and whether a duty was

breached, the district court concluded the plaintiffs’ claims must fail for

the further reason that they did not establish a causal connection

between their claimed injuries and damages and the acts and omissions

of Kaczinski and Lockwood. Again relying on its determination that the

risk of the trampoline’s displacement from the yard to the roadway was

not foreseeable, the court resolved the causation issue against the

Thompsons as a matter of law.
                                     11

      We have held causation has two components: cause in fact and

legal cause.   Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007).             The

decisions of this court have established it is the plaintiff’s burden to

prove both cause in fact and legal (proximate) cause. See City of Cedar

Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 17 (Iowa 2000). The

latter component requires a policy determination of whether “the policy

of the law must require the defendant to be legally responsible for the

injury.” Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996). Causation

is a question for the jury, “ ‘save in very exceptional cases where the facts

are so clear and undisputed, and the relation of cause and effect so

apparent to every candid mind, that but one conclusion may be fairly

drawn therefrom.’ ”   Lindquist v. Des Moines Union Ry., 239 Iowa 356,

362, 30 N.W.2d 120, 123 (1947) (quoting Fitter v. Iowa Tel. Co., 143 Iowa

689, 693–94, 121 N.W. 48, 50 (1909)).

      We have previously applied the test articulated in the Restatement

(Second) of Torts when determining if a defendant’s conduct is a legal or

proximate cause of the plaintiff’s damages. This test holds “[t]he actor’s

negligent conduct is a legal cause of harm to another if (a) his conduct is

a substantial factor in bringing about the harm, and (b) there is no rule

of law relieving the actor from liability.” Restatement (Second) of Torts

§ 431, at 428 (1965); accord Kelly v. Sinclair Oil Corp., 476 N.W.2d 341,

349 (Iowa 1991). In deciding whether conduct is a substantial factor in

bringing about the harm, we have considered the “proximity between the

breach and the injury based largely on the concept of foreseeability.”

Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 83

(Iowa 2002).    The word “substantial” has been used to express “the

notion that the defendant’s conduct has such an effect in producing the
                                      12

harm as to lead reasonable minds to regard it as a cause.” Sumpter v.

City of Moulton, 519 N.W.2d 427, 434 (Iowa Ct. App. 1994).

       The formulation of legal or proximate cause outlined above has

been the source of significant uncertainty and confusion. This court’s

adherence to the formulation has been less than consistent. See Gerst,

549 N.W.2d at 816–17 (chronicling inconsistencies in our approach to

questions     of   proximate   causation).   Even   had   it   been   applied

consistently, the concept of legal or proximate cause itself has been

criticized for confusing factual determinations (substantial factor in

bringing about harm) with policy judgments (no rule of law precluding

liability).   Id. at 816.   Although we have previously noted our uneven

approach to proximate cause questions and acknowledged the criticism

of the doctrine, we have not yet had the opportunity to clarify this area of

law. Id. at 817. We do now.

       “Tort law does not impose liability on an actor for all harm

factually caused by the actor’s tortious conduct.”     Restatement (Third)

ch. 6 Special Note on Proximate Cause, at 574.            This concept has

traditionally been designated “proximate cause.” While this term is used

extensively and appropriately by courts, practitioners, and scholars, it

causes considerable confusion for juries because it does not clearly

express the idea it is meant to represent. See id. § 29 cmt. b, at 576–77.

The confusion arises when jurors understand “proximate cause” as

implying “there is but one cause—the cause nearest in time or geography

to the plaintiff’s harm—and that factual causation bears on the issue of

scope of liability.”   Id. § 29 cmt. b, at 577.     Thus, in an attempt to

eliminate unnecessary confusion caused by the traditional vernacular,
                                           13

the drafters of the third Restatement refer to the concept of proximate

cause as “scope of liability.” 2

       The drafters of the Restatement (Third) explain that the “legal

cause” test articulated in the second Restatement included both the

“substantial factor” prong and the “rule of law” prong because it was

intended to address both factual and proximate cause. Id. ch. 6 Special

Note on Proximate Cause, at 574.                Although the “substantial factor”

requirement has frequently been understood to apply to proximate cause

determinations, see Gerst, 549 N.W.2d at 815–16, the drafters contend it

was never intended to do so. Restatement (Third) § 29 cmt. a, at 576.3

Accordingly, to eliminate the resulting confusion of factual and policy

determinations resulting from the Restatement (Second) formulation of

legal cause, the drafters have opted to address factual cause and scope of

liability (proximate cause) separately. Restatement (Third) ch. 6 Special

Note on Proximate Cause, at 575. The assessment of scope of liability


        2The Restatement (Second) rarely used the term “proximate cause,” but instead

used “legal cause” as an umbrella term to address both concepts of factual cause and
proximate cause. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 574.
The drafters of the Restatement (Third) have also abandoned the use of the term “legal
cause” because, like “proximate cause,” it “contributes to the misleading impression
that limitations on liability somehow are about factual cause” and the term has never
become widely accepted and utilized in tort law. Id. at 575.

        3Our opinion in Gerst suggested the substantial factor test was developed to

address a situation in which there were two or more causes of the harm to plaintiff and
either of the causes alone would have been sufficient to bring about the harm. In this
situation, because a strict application of the cause-in-fact “but-for” test “would allow
both tortfeasors to avoid liability, courts made the policy decision to nevertheless
impose liability ‘if [the defendant’s conduct] was a material element and a substantial
factor in bringing [the event] about.’ ” Gerst, 549 N.W.2d at 815 (quoting W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 267 (5th ed. 1984)). Citing
Prosser, we suggested in Gerst that “the substantial factor test was originally intended
to address a legal causation issue, not one of causation in fact.” Id. at 815–16. Having
reexamined the question, we concur with the drafters of the Restatement (Third) on this
point. The Restatement (Third) addresses the problem of multiple sufficient causes as
part of the factual cause determination. See Restatement (Third) § 27, at 452.
                                         14

under the Restatement (Third) no longer includes a determination of

whether the actor’s conduct was a substantial factor in causing the harm

at issue, a question properly addressed under the factual cause rubric.

See id. § 27 cmt. j, at 427–29. 4

       Most importantly, the drafters of the Restatement (Third) have

clarified the essential role of policy considerations in the determination of

the scope of liability.    “An actor’s liability is limited to those physical

harms that result from the risks that made the actor’s conduct tortious.”

Id. § 29, at 575.     This principle, referred to as the “risk standard,” is

intended to prevent the unjustified imposition of liability by “confining

liability’s scope to the reasons for holding the actor liable in the first

place.”     Id. § 29 cmt. d, at 579–80.       As an example of the standard’s

application, the drafters provide an illustration of a hunter returning

from the field and handing his loaded shotgun to a child as he enters the

house. Id. cmt. d, illus. 3, at 581. The child drops the gun (an object

assumed for the purposes of the illustration to be neither too heavy nor

unwieldy for a child of that age and size to handle) which lands on her

foot and breaks her toe. Id. Applying the risk standard described above,

the hunter would not be liable for the broken toe because the risk that

made his action negligent was the risk that the child would shoot

someone, not that she would drop the gun and sustain an injury to her

foot. Id.

       The    scope-of-liability   issue   is   fact-intensive    as   it   requires

consideration of the risks that made the actor’s conduct tortious and a

determination of whether the harm at issue is a result of any of those




       4We noted in Gerst, 549 N.W.2d at 817, but did not decide the question whether

the substantial factor test should be eliminated.
                                    15

risks. Id. § 29 cmt. d, at 580, 584. When, as in this case, the court

considers in advance of trial whether

      the plaintiff’s harm is beyond the scope of liability as a
      matter of law, courts must initially consider all of the range
      of harms risked by the defendant’s conduct that the jury
      could find as the basis for determining [the defendant’s]
      conduct tortious. Then, the court can compare the plaintiff’s
      harm with the range of harms risked by the defendant to
      determine whether a reasonable jury might find the former
      among the latter.
Id. at 580.

      The drafters advance several advantages of limiting liability in this

way. First, the application of the risk standard is comparatively simple.

Id. cmt. e, at 585. The standard “appeals to intuitive notions of fairness

and proportionality by limiting liability to harms that result from risks

created by the actor’s wrongful conduct, but for no others.” Id. It also is

flexible enough to “accommodate fairness concerns raised by the specific

facts of a case.” Id.

      Foreseeability has previously played an important role in our

proximate cause determinations. See Virden, 656 N.W.2d at 808. For

example,

      “ ‘An injury that is the natural and probable consequence of
      an act of negligence is actionable, and such an act is the
      proximate cause of the injury. But an injury which could
      not have been foreseen or reasonably anticipated as the
      probable result of an act of negligence is not actionable and
      such an act is either the remote cause, or no cause
      whatever, of the injury.’ ”

Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 568–69 (Iowa 1997)

(quoting Fly v. Cannon, 836 S.W.2d 570, 574 (Tenn. Ct. App. 1992)).

When, as in this case, we have been called upon to consider the role of

an intervening or superseding cause, the question of the foreseeability of

the superseding force has been critical.     See Summy v. City of Des
                                     16

Moines, 708 N.W.2d 333, 342 (Iowa 2006); Clinkscales, 697 N.W.2d at

843.

       The drafters of the Restatement (Third) explain that foreseeability

is still relevant in scope-of-liability determinations.     “In a negligence

action, prior incidents or other facts evidencing risks may make certain

risks foreseeable that otherwise were not, thereby changing the scope-of-

liability analysis.” Restatement (Third) § 29 cmt. d, at 584–85. In fact,

they acknowledge the similarity between the risk standard they articulate

and the foreseeability tests applied by most jurisdictions in making

causation determinations in negligence cases.

       Properly understood, both the risk standard and a
       foreseeability test exclude liability for harms that were
       sufficiently unforeseeable at the time of the actor’s tortious
       conduct that they were not among the risks—potential
       harms—that made the actor negligent. . . . [W]hen scope of
       liability arises in a negligence case, the risks that make an
       actor negligent are limited to foreseeable ones, and the
       factfinder must determine whether the type of harm that
       occurred is among those reasonably foreseeable potential
       harms that made the actor’s conduct negligent.

Id. § 29 cmt. j, at 594. Although the risk standard and the foreseeability

test are comparable in negligence actions, the drafters favor the risk

standard because it “provides greater clarity, facilitates clearer analysis

in a given case, and better reveals the reason for its existence.” Id. They

explain that a foreseeablity test “risks being misunderstood because of

uncertainty about what must be foreseen, by whom, and at what time.”

Id. at 595.

       We find the drafters’ clarification of scope of liability sound and are

persuaded by their explanation of the advantages of applying the risk

standard as articulated in the Restatement (Third), and, accordingly,

adopt it.
                                    17

      Our next task, then, is to consider whether the district court erred

in concluding the harm suffered by the Thompsons was, a matter of law,

outside the scope of the risk of Kaczinski and Lockwood’s conduct. We

conclude the question of whether a serious injury to a motorist was

within the range of harms risked by disassembling the trampoline and

leaving it untethered for a few weeks on the yard less than forty feet from

the road is not so clear in this case as to justify the district court’s

resolution of the issue as a matter of law at the summary judgment

stage. A reasonable fact finder could determine Kaczinski and Lockwood

should have known high winds occasionally occur in Iowa in September

and a strong gust of wind could displace the unsecured trampoline parts

the short distance from the yard to the roadway and endanger motorists.

Although they were in their home for several hours after the storm

passed   and   approximately    two-and-a-half   hours   after   daybreak,

Kaczinski and Lockwood did not discover their property on the nearby

roadway, remove it, or warn approaching motorists of it. On this record,

viewed in the light most favorable to the Thompsons, we conclude a

reasonable fact finder could find the harm suffered by the Thompsons

resulted from the risks that made the defendants’ conduct negligent.

Accordingly, the district court erred in deciding the scope-of-liability

question as a matter of law in this case.

      IV. Conclusion.

      The district court correctly determined Kaczinski and Lockwood

owed no statutory duty pursuant to Iowa Code section 318.3 under the

circumstances of this case.     Therefore, we affirm the district court’s

dismissal of this claim. However, the district court erred in concluding

Kaczinski and Lockwood owed the Thompsons no common law duty. As

a reasonable fact finder could conclude the Thompsons’ injuries and
                                    18

damages were within the scope of the risk of Kaczinski and Lockwood’s

acts or omissions, the district court erred in resolving the scope of

liability question as a matter of law. Accordingly, we reverse the district

court’s dismissal of this claim and remand this case for trial.

      COURT OF APPEALS DECISION VACATED; DISTRICT COURT

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE

REMANDED.

      All justices concur except Cady, J., who concurs specially and

Streit, J., who takes no part.
                                      19

                                      #68/08–0647, Thompson v. Kaczinski

CADY, Justice (specially concurring).

      I concur with the result reached by the majority, but write

separately to express two brief points.

      First, the majority holds that the defendants had a common-law

duty to reasonably secure outdoor personal property from being

displaced by the wind. While I agree with the holding, I believe it should

be narrowly construed to the facts of this case. A narrow construction is

necessary   because     there   may    be   a   point   when   public-policy

considerations would intervene to narrow the duty to exclude some items

of personal property placed or kept by homeowners and others outside a

home, such as patio and deck furniture and curbside waste disposal and

recycling containers.

      Second, the majority utilizes a causation or scope-of-liability

analysis to deny summary judgment on the basis that a “reasonable fact

finder could determine [the defendants] should have known . . . a strong

gust of wind could displace the unsecured trampoline . . . and endanger

motorists.” Yet, they identify no facts or offer any common knowledge to

explain such a conclusion.       All that is known from the summary

judgment proceeding is the trampoline was “disassembled” and “placed”

in the yard. In truth, there are no facts in the record at this point to

show or explain how the wind could have moved the trampoline.

Moreover, without such facts, the incident cannot be explained by

common knowledge.        Consequently, the absence of such facts or

common knowledge, not an unsupported conclusion, should supply the

reason to deny summary judgment.

      Summary judgment can only be granted when the facts are clear

and undisputed. Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994)
                                   20

(stating parties must establish the undisputed facts compelling a

particular outcome under controlling law).     If the facts, disputed or

undisputed, showed the trampoline in this case was positioned in the

yard in such a way that a reasonable person with common knowledge

could understand that wind could enter under the trampoline tarp and

lift the trampoline, then a reasonable fact finder could determine the

incident was within the range of harms of leaving a trampoline in the

yard to support causation or scope of liability. On the other hand, if the

undisputed facts showed the trampoline tarp was attached to the metal

ring and positioned flat on the ground, a court may very well be justified

in concluding the incident was not within the risks of leaving a

trampoline in the yard. Thus, summary judgment should be denied in

this case because the facts are unclear and uncertain. It is inappropriate

for a court to make a legal determination that a reasonable person

should have known or appreciated the ability of wind to lift and carry a

trampoline without knowing the particular facts and circumstances.
