Jаy Mensink had just delivered a truckload of corn to the defendants’ grain elevator when lightning struck the elevator and caused a grain dust explosion. Mensink received extensive injuries. He and his wife filed this suit, alleging several theories of recovery. The district court submitted two theories: failure of the elevator to install lightning protection devices and failure to evacuate the elevator before the explosion. The jury returned a verdict for the plaintiffs without specifying’ the theory under which damages were allowed. Because we conclude that it was error to submit the evacuation theory, we revеrse and remand for a new trial.
I. Facts and Issues Presented.
Agri Grain Marketing, a partnership composed of Cargill Elevator, Inc. and American Grain and Related Industries, leases a grain elevator located along the Mississippi River near McGregor, Iowa. This elevator is primarily composed of two structures, the original elevator and storage facility, or “old house,” and an annex, which was built in 1978. On August 10, 1992, the lightning struck the elevator, igniting the accumulated grain dust.
The defendants raise four issues: (1) submission of the fire protection theory, (2) submission of the evacuation theory, (8) an accumulation of errors, and (4) the excessiveness *379 of the jury verdict. Beсause we conclude that the erroneous submission of the evacuation theory requires a new trial, it is not necessary to address issues three and four.
The defendants challenged the court’s submission of the two theories of recovery by motions for directed verdict and motions for judgment notwithstanding the verdict. We review a denial of a motion for a directed verdict for a correction of errors at law.
Podraza v. City of Carter Lake,
II. The Fire Protection Theory.
The defendants contend that it was error to submit this theory, primarily because (1) it rested on the testimony of a purported expert who was not competent to give an opinion; (2) the expert testimony should be rejected under
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
A.
The expert’s qualifications.
The plaintiffs’ case rests to a large extent on the testimony of Dr. Leonard Bernstein, who testified that installation of a lightning protection system would have reduced the chance of a lightning strike. The defendants attack his credentials, largely because of his lack of specific experience in grain elevator cases. As a general rule, decisions concerning a witness’s qualifications are committed to the discretion of the trial court.
See Hutchison v. American Family Mut. Ins. Co.,
Dr. Bernstein is a retired professor of electrical and computer engineering at the University of Wisconsin. He presently works as a consulting engineer on safety issues, including lightning damage protection. Since 1965 he has been extensively involved in the study of electrocution and electrical injury. For approximately thirty years, he has studied electricity and lightning as they relate to damage to persons and property. He has been a member of a lightning protection committee involved with the drafting of a code for lightning protection. He has worked with several manufacturers, the United States Consumer Product Safety Commission, and various firefighting agencies concerning issues of electrical and lightning protection.
Dr. Bernstein has organized programs at the University of Wisconsin to study lightning and lightning protection. Attendees from across the country have included lightning protection installers, representatives of government safety agencies, and representatives of insurance companies and fire departments. He has published articles on lightning safety and methods of preventing lightning injuries. He has been a member of the National Fire Protection Lightning Protection Committee and has assisted in revisions to the Lightning Protection Code published by the National Fire Protection *380 Association. He has consulted with Underwriters Laboratories on lightning protection equipment.
The court was well within its discretion in finding this witness to be qualified to testify.
B. The admissibility of the evidence. Iowa Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
This rule of evidence and our cases decided both before and after the adoption of the rule make it clear that we are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area.
See, e.g., Williams v. Hedican,
As to opinion evidence, we have stated:
Receipt of opinion evidence, lay or expert, is a matter within the trial court’s discretion. We will not reverse the triаl court’s receipt absent a manifest abuse of that discretion to the prejudice of the complaining party. We are committed to a liberal rule on the admission of opinion testimony, and only in clear cases of abuse would the admission of such evidence be found to be prejudicial.
Iowa-Illinois Gas & Elec.,
Thеse defendants, however, ask us to “give ... guidance as to how trial courts are to discharge their increased responsibility” in view of the United States Supreme Court’s Daubert case. Specifically, they say that, “[i]n light of Daubert, this court should revisit its standards for the qualification and admission of expert testimony.” The effect of this revisitation, according to the defendants’ anаlysis, would be to hold that the evidence here was inadmissible.
Daubert provided a two-part test for admission of expert testimony:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a faсt in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
These defendants suggest that we apply the
Daubert
test and its “general observations” bearing on the admission of such evidence. Thesе observations include (1) whether the theory can and has been tested, (2) whether the theory has been subject to peer review and publication, (3) what is the known rate of error, and (4) whether the theory has been generally accepted.
Daubert,
As we recently noted in
Williams,
[d]eterminations of admissibility of such evidence must necessarily be made on an ad hoc basis, and it would be impossible to establish rules binding in every case. Obviously the complexity of the subject matter will influence the foundational showing of reliability. For example, the foundation for neutron activation analysis ... or polygraph evidence ... would require greater input from the scientific community than, for examрle, blow-ups of handwriting exemplars, ballistic comparisons, or tire tracks.
The “risk factors” considered by Dr. Bernstein are those that an average layperson would understand. These factors include (1) the type of structure, e.g., a home, elevator, etc.; (2) the type of construction, e.g., wood, reinforced concrete, etc.; (3) the topography of the surrounding area in relation to the structure; (4) the occupancy and contents of the structure, thereby affecting the degree of risk of injury or damage; and (5) the lightning frequency of the area (at McGregor, there are approximately forty to fifty “lightning days” per year, as compared to approximatеly 100 in Florida and less than five in the eastern United States).
These factors do not involve a highly complex matter of scientific evidence.
Daubert,
we believe, was not intended to apply in a case such as this one, and we decline to apply it here. The factors in this case, as set out above, which dеtermine the vulnerability to lightning based on the type and location of the structure, are so “close to the ken of the average layman,”
Hall,
We conclude that, irrespective of Daubert, the witness sufficiently established the reliability of this evidence and that it would likely assist the fact finder in determining the facts in issue. See Iowa R. Evid. 702. The court therefore did not abuse its discretion in admitting it.
C. The “opinion on the ultimate facts.” Dr. Bernstein testified, over the defendants’ objection, that “the building was not reasonably safe without lightning protection on it” and that “[t]his exрlosion would not have occurred if there had been a properly installed lightning protection system.” The defendants complain that this “was, in effect, an opinion that the defendants’ conduct in maintaining [the elevator] did not meet the requisite standard of care” and that this was not a proper subjeсt of expert testimony. They argue that it was tantamount to an opinion that the defendants were negligent.
In
Grismore v. Consolidated Products Co.,
There are many matters of scientific investigation and specialized knowledge in the fields of the professions, trades, business, industry, art, and other endeavors, where the minds of those not learned therein necessarily grope but blindly. Expert opinion in such cases is indispensable to aid the jurors in reaching a correct conclusion, and the fact that the matter inquired about is a vital and controlling fact in the trial, or is even the ultimate fact which the jury are to pass upon and determine, is no reason why the opinion should not be received.
Grismore,
*382 Our rule of evidence 704 supports this view:
Testimony in the form of an opinion or inference othеrwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
In
Iowa-Illinois Gas & Electric Co.,
In the present case, Dr. Bernstein testified based on the risk assessment discussed above that the building in question was at a “sеvere risk.” He did not testify as to the jury’s ultimate decision, i.e., whether the defendants were negligent. He properly referred to the risk analysis promulgated by the technical committee on lightning protection of the National Fire Protection Association and concluded that the defendants failed to comply with it. The jury was free to disregard this testimony altogether, and the defendants were free to attack it on cross-examination or through rebuttal evidence of their own. We reject the defendants’ argument that this constituted an improper opinion on an ultimate fact.
III. The Evacuation Theory.
The district court submitted an instruction that рermitted the jury to find that the defendants were negligent in failing to evacuate the elevator before the lightning struck. We do not know whether the jury found negligence on this theory or on the theory that the defendants were negligent for not having fire protection devices, or both. The verdict forms were, unfortunately, not structured to separate the jury’s resolution of the two theories.
The law is that
[t]he possessor of land is under a duty to use ordinary care to keep the premises in a reasonably safe condition for business invitees. This duty requires the possessor to use reasonable care to ascertain the actual condition of the premises. The duty also requires the possessor to make the area reasonably safe or to give warning of the actual condition and risk involved. Restatement section 343 comment d [ (1964) ].
Konicek v. Loomis Bros., Inc.,
We agree with the defendants that the plaintiffs failed to shоw a duty to evacuate the premises. Of course, in order to recover for damages caused by another’s negligence, the plaintiffs must establish a legal duty.
Peters v. Burlington N. R.R.,
The plaintiffs showed no generalized customs that would require evacuation, and in fact, it is unlikely that there is a general custom that would require evacuation of the premises on forty or fifty days during the year (the number of lightning days in the McGregor area). Such a practice would be unworkable. Also, beсause the evidence showed that lightning can strike as much as twenty miles in advance of a storm, lightning strikes in some cases would be totally unpredictable.
Because we believe the plaintiffs failed to establish a duty to evacuate the premises, we hold that it was error for the court to submit this issue. We therefore reverse and remand for a new trial. Other issues are raised by the defendants, but we either find no merit in them or conclude that they are not necessary to the disposition of this case.
*383 We affirm the district court insofar as it submitted the theory of failing to have proper lightning protection devices but reverse on the evacuation theory. We remand for a new trial.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR NEW TRIAL.