JIM SUTTON and ANGELA SUTTON, Appellees, vs. COUNCIL BLUFFS WATER WORKS, Appellant.
No. 22–0513
IN THE SUPREME COURT OF IOWA
Submitted February 22, 2023—Filed May 19, 2023
McDermott, J.
A municipality appeals the denial of its motion to dismiss a strict-liability claim for structural and other damage to a house resulting from a water main break. AFFIRMED.
McDermott, J., delivered the opinion of the court, in which all participating justices joined. Christensen, C.J., took no part in the consideration or decision of the case.
Raymond E. Walden (argued), Michael T. Gibbons, and Christopher D. Jerram of Woodke & Gibbons, P.C., L.L.O., Omaha, Nebraska for appellant.
Nicholas F. Sullivan (argued) and Tiffany S. Boutcher of Dvorak Law Group, LLC, Omaha, Nebraska, for appellees.
McDERMOTT, Justice.
Jim and Angela Sutton‘s house in Council Bluffs sits near an intersection where an underground water main broke in November 2020, sending water flowing to the surface. The Suttons alerted Council Bluffs Water Works to the problem and, over the next eight weeks, crews inspected and repaired breaks to the pipe on five different occasions. The escaping water soon became standing water.
The Suttons allege that all the water caused their house to settle, resulting in damage to its foundation, interior walls, garage floors, and doors. They sued Water Works under two legal theories: count 1, strict liability; and count 2, negligence. Water Works moved to dismiss the strict liability claim, arguing that the Iowa Municipal Tort Claims Act,
In Lubin v. City of Iowa City, 131 N.W.2d 765, 770–72 (Iowa 1964), we held that a municipality could be held liable under a theory of strict liability for damage resulting from an underground water main break. We imposed strict liability primarily because of the nature of the activity, explaining our reasoning this way:
It is neither just nor reasonable that the city engaged in a proprietary activity can deliberately and intentionally plan to leave a watermain underground beyond inspection and maintenance until a break occurs and escape liability. A city or corporation so operating knows that eventually a break will occur, water will escape and in all probability flow onto the premises of another with resulting damage. We do not ordinarily think of watermains as being extra-hazardous but when such a practice is followed, they become “inherently dangerous and likely to damage the neighbor‘s property” . . . . When the expected and inevitable occurs, they should bear the loss and not the unfortunate individual whose property is damaged without fault of his own.
Id. at 770 (citation omitted) (quoting Pumphrey v. J.A. Jones Constr. Co., 94 N.W.2d 737, 738 (Iowa 1959)).
In 1967, three years after we decided Lubin, the legislature enacted the Iowa Municipal Tort Claims Act. 1967 Iowa Acts
Water Works‘s argument builds on a series of premises. Water Works first notes that the Act eliminated the right to pursue claims against municipalities that the Act itself doesn‘t authorize. See Rucker v. Humboldt Cmty. Sch. Dist., 737 N.W.2d 292, 293 (Iowa 2007) (stating that the Act “is the exclusive remedy for torts against municipalities and their employees“). It then interprets the Act to prohibit claims based on strict liability, thus abolishing the strict liability cause of action that we recognized in Lubin. As a result, Water Works concludes that the district court erred in failing to dismiss the Suttons’ strict liability claim.
We turn to the Act‘s language to test Water Works‘s premise that the Act abolished claims for strict liability. As quoted above, the Act makes municipalities liable for “torts.”
“Tort” means every civil wrong which results in wrongful death or injury to person or injury to property or injury to personal or property rights and includes but is not restricted to actions based upon negligence; error or omission; nuisance; breach of duty, whether statutory or other duty or denial or impairment of any right under any constitutional provision, statute or rule of law.
Water Works argues that strict liability isn‘t listed in the definition of “tort” in the Act and thus isn‘t a type of claim that the Act allows. It points to the absence of strict liability in the definition‘s list of causes of action (“negligence,” “error or omission,” “nuisance,” and so on) and concludes that this means the Act provides no cause of action for strict liability. Water Works seeks to bolster its interpretation by reciting the negative-implication canon, which says that the expression of one thing in a series excludes others that were not mentioned. See Homan v. Branstad, 887 N.W.2d 153, 166 (Iowa 2016). If strict liability claims are not permitted under the Act, Water Works argues, then we must dismiss count I.
But Water Works‘s argument can‘t overcome the plain meaning of the text. The definition of “tort” doesn‘t consist of a list of causes of action; the list is offered only as an illustration. We know we‘re being presented with a nonexclusive list of examples based on the words that precede the list: “includes but is not restricted to.”
The defining language at the beginning of the sentence—that tort “means every civil wrong which results in wrongful death or injury” to people, property, or property rights—further clashes with Water Works‘s interpretation.
Water Works makes a related argument that the list of examples, if not itself determinative, necessarily sheds light on the parameters of the Act‘s definition of “tort” and that the absence of strict liability from the list means that “tort” is limited to fault-related causes of action. In making this argument, Water Works recites the interpretive canon that associated words in a statute bear on one another‘s meaning. See State v. Ross, 941 N.W.2d 341, 348 (Iowa 2020); Scalia & Garner, Reading Law at 195.
But this argument doesn‘t work for two reasons. First, as already discussed, the defining language (“every civil wrong which results in wrongful death or injury“) embraces strict liability claims, and the nonexclusive list of examples doesn‘t rewrite that defining language. Second, even if the list of examples could be read to alter the defining language, the Act‘s insertion of “nuisance” on the list suggests inclusion, rather than exclusion, of strict liability because strict liability commonly applies to nuisance claims. In Martins v. Interstate Power Co., 652 N.W.2d 657, 664 (Iowa 2002), we said that a “survey of our nuisance cases makes clear that there can be a nuisance claim without an underlying actionable conduct, such as negligence,” and “without a showing of intentional conduct“—in other words, nuisance based on strict liability.
Using the listed examples to shape the meaning of “tort” under the Act cuts against the interpretation Water Works urges.
Water Works further argues that strict liability is inconsistent with an exemption from liability in section 670.4(1)(h) of the Act, which bars
[a]ny claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a public improvement . . . or other public facility that was constructed or reconstructed in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction. A claim under this chapter shall not be allowed for failure to upgrade, improve, or alter any aspect of an existing public
improvement or other public facility to new, changed, or altered design standards.
Water Works‘s argument views too broadly the work that paragraph (h) actually performs. The two sentences that make up paragraph (h) have distinct features. The first sentence bars negligence claims—negligent design, negligent specification, negligent construction, and so on—if the “the original designs or specifications were proper at the time the public facility was constructed.” Kellogg v. City of Albia, 908 N.W.2d 822, 826 (Iowa 2018) (quoting Hansen v. City of Audubon, 378 N.W.2d 903, 906 (Iowa 1985)). The second sentence is not limited to negligence and bars claims based on an alleged failure to upgrade existing public facilities when a new-and-improved design standard emerges.
Paragraph (h) thus grants municipalities a “state-of-the-art defense” to several very specific claims. These two sentences apply to “public improvement[s]” and “public facilit[ies],”
Neither part of the state-of-the-art defense in paragraph (h) applies here. The Suttons allege in count I that Water Works is strictly liable for the damage to their house based on the inherent danger associated with the underground water main. Count I alleges no negligence (in design, specification, construction, or otherwise) that would trigger the state-of-the-art defense in paragraph (h)‘s first sentence. And the Suttons similarly make no allegation of any failure by Water Works to upgrade, improve, or alter any part of the water distribution system to a new, changed, or altered design standard to trigger the defense in paragraph (h)‘s second sentence.
Finally, Water Works argues that our opinion in Kellogg v. City of Albia should be read as having done away with strict liability claims under the Act and thus implicitly overruling Lubin. Kellogg, 908 N.W.2d at 826. In Kellogg, a homeowner sued the city not based on damage from a broken underground water pipe but because a properly functioning storm sewer became overburdened and caused flooding during heavy rains. Id. at 824–25. The city argued that the homeowner‘s nuisance claim was really just a claim for failing to upgrade the overburdened storm sewer system and was pleaded as nuisance to sidestep the state-of-the-art defense. Id. at 826. Persuaded by the city‘s argument, we
But Kellogg does not, as Water Works argues, signal our refusal to recognize strict liability under the Act against a municipality for damage caused by an underground water main break. Kellogg didn‘t involve a water main break. The homeowner in Kellogg alleged no claim of strict liability. Indeed, the term “strict liability” appears nowhere in the opinion. See generally id. It‘s unsurprising, then, that the opinion contains no discussion of Lubin. Stated simply, Kellogg addressed different facts and different claims, and it neither abrogates nor overrules our holding in Lubin. We note that the court of appeals, in a published opinion twelve years after the Iowa Municipal Tort Claims Act was enacted, applied Lubin and affirmed strict liability against a municipality for damages based on a water main break. See Iowa Power & Light Co. v. Bd. of Water Works Trs., 281 N.W.2d 827, 831 (Iowa Ct. App. 1979). In short, we find nothing in our caselaw, and nothing in chapter 670, that upends our holding in Lubin.
Water Works has failed to show that the Iowa Municipal Tort Claims Act bars the Suttons’ claim for damages based on strict liability. We thus affirm the district court‘s denial of the motion to dismiss this claim.
AFFIRMED.
All justices concur except Christensen, C.J., who takes no part.