IN THE SUPREME COURT OF IOWA

No. 14–0199

Filed June 24, 2016

KATHRYN WINGER and TIMOTHY POTTS,

Appellants,

vs.

CM HOLDINGS, L.L.C.,

Appellee.

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Polk County, Richard G. 

Blane II, Judge. 

Plaintiffs and defendant seek further review of court of appeals 

decision ordering a new trial in a wrongful-death action arising from a 

fatal fall from an apartment balcony. DECISION OF COURT OF 

APPEALS VACATED; DISTRICT COURT ORDER AFFIRMED IN PART 

AND REVERSED IN PART; CASE REMANDED FOR NEW TRIAL. 

Robert G. Rehkemper and Cory F. Gourley of Gourley, Rehkemper 

& Lindholm, P.L.C., for appellants. 

Brenda K. Wallrichs of Lederer Weston Craig PLC, Cedar Rapids, 

and Michael A. Carmoney and Jack W. Leverenz of Carmoney Law Firm, 

PLLC, Des Moines, for appellee. 
2

WATERMAN, Justice.

This wrongful-death action arises from a fatal fall from an 

apartment balcony and presents several issues on the applicability of the 

doctrine of negligence per se to an alleged municipal housing code 

violation. The thirty-two-inch high balcony railing complied with the 

local housing code when the apartment complex was constructed in 

1968, but unless exempted under a grandfather provision, it is ten 

inches shorter than the current housing code allows. Before the 

accident, a local housing inspector cited the landlord for that code 

violation. The inspector reasoned that an attached plastic lattice

modified the railings to eliminate grandfather status. The landlord did 

not appeal that finding but rather ordered the higher railings and asked 

for an extension of time to install them. The City of Des Moines Housing 

Appeal Board (HAB), without a contested hearing, found the property 

was in violation but granted a three-month extension to install compliant 

railings and suspended the $1090 fine. The plaintiffs’ daughter fell over 

the original railing to her death three days later. 

The plaintiffs filed a premises liability action alleging the thirtytwo-inch railing violated the local housing code. Their expert testified the 

forty-two-inch railing would have prevented the accident. The district 

court ruled the landlord was bound by the HAB’s determination that 

forty-two-inch railings were required and rejected the landlord’s 

arguments that the property was grandfathered out of the current code 

or that the HAB’s extension of time to install higher railings excused tort 

liability. The court instructed the jury that the landlord’s violation of the

housing code constituted negligence per se and limited the jury to 

deciding causation, comparative fault, and damages. The jury found the 

landlord sixty-five percent at fault, the plaintiffs’ daughter thirty-five 
3

percent at fault, and awarded combined total damages of $1,750,000 

($1,137,500 after reduction for comparative fault). In posttrial rulings, 

the district court concluded the doctrine of negligence per se did not 

apply to a local housing code and ordered a new trial. Both sides 

appealed, and we transferred the case to the court of appeals, which 

affirmed with one judge dissenting and another specially concurring. We 

granted the applications for further review by both sides. 

For the reasons explained below, we hold that the doctrine of 

negligence per se applies to the violation of a municipal housing code 

and is not limited to statewide laws. Additionally, the district court 

correctly rejected the landlord’s argument that the old code applied as a 

matter of law. The HAB’s extension of time for the landlord to comply 

with the code merely suspended administrative penalties without 

excusing tort liability. The district court, however, erred by instructing 

the jury on the basis that the new code applied as a matter of law. The

HAB’s determination of a code violation does not have preclusive effect in 

this wrongful-death action. On remand, the parties may present 

evidence on whether prior modifications eliminated grandfather status.

Accordingly, we vacate the decision of the court of appeals, reverse the 

district court’s posttrial rulings, and remand this case for a new trial. 

I. Background Facts and Proceedings. 

On July 23, 2011, twenty-one-year-old Shannon Potts came to the 

Grand Stratford Apartments in Des Moines after work to socialize with

friends. She arrived at their second-floor apartment around 1:30 a.m. 

slightly intoxicated and watched movies with a small group. She 

continued drinking until about 4 a.m. when her friends hid the alcohol. 

Shannon asked one to talk with her privately on the balcony. They 

talked for about twenty minutes before her friend returned inside to get 
4

another drink. While inside, her friend heard a scream and a crash. 

Shannon had gone over the railing. Her friends ran downstairs and 

found her unresponsive. A bystander called 911. Shannon was rushed 

to the hospital with a fractured neck and crushed spine and was 

pronounced dead there. Toxicology tests indicated she was intoxicated 

at the time of her fall and had marijuana and Xanax in her bloodstream. 

Mark Critelli was the sole owner of the Grand Stratford Apartments 

until February 15, just over five months before Shannon’s fatal fall. This

apartment complex consists of a duplex and three larger buildings 

constructed in 1968. The apartments were built to comply with the 1968 

housing code which required guardrails between thirty- and thirty-four

inches high. Des Moines, Iowa, Municipal Code § 24-28.06 (1962). The 

original black iron railings are thirty-two inches high and remained in 

place when Shannon fell forty-three years later. In 1979, the 

Des Moines, Iowa, Municipal Code was amended to require guardrails of 

forty-two inches in height. Des Moines, Iowa, Municipal Code § 14-10(b) 

(1979). The 1979 Code included a grandfather provision stating that

“[g]uardrails which were installed prior to the passage of this subchapter 

and were in conformance with the Health and Safety Housing Code then 

in effect may be allowed to remain if in structurally sound condition.” Id. 

In 2005, the guardrail ordinance stated, “Multiple family dwellings with 

porches, balconies or raised floor surfaces located more than 30 inches 

above the floor or below grade shall have guards not less than 42 inches 

in height.” Des Moines, Iowa, Municipal Code § 60-127(c) (2005). The 

grandfather provision was revised to state, “Any structure that was in 

compliance on the day previous to the adoption of this code will be 

allowed to remain.” Id. § 60-5. The ordinance was admitted into 

evidence without objection. 
5

The HAB found Critelli was a “habitual violator” of the code. All

properties under his ownership were put on an accelerated inspection 

schedule. In 2009, Critelli attached a forty-eight-inch high white plastic 

lattice to the guardrails with zip ties. The lattice served as a privacy 

screen to shield each balcony from view. Although Critelli received 

numerous notices of violations regarding this property, none addressed 

the guardrails before February 2011. 

Eddie Leedom is a city inspector assigned to the Neighborhood 

Inspection Unit. He inspected the Grand Stratford Apartments on 

February 10 and found 106 code violations, including the guardrail 

height, broken window screens, and a broken garbage disposal. Leedom 

concluded the plastic lattice was an alteration to the guardrails that 

triggered a duty to comply with the current forty-two-inch guardrail

requirement. He spoke with the director of the HAB who agreed the

thirty-two-inch guardrails were too low.

On February 15, Eric Estes and Merle Laswell formed CM Holdings

with Mark Critelli to acquire a controlling ownership interest in the 

Grand Stratford Apartments. The property was in disrepair, and 

CM Holdings began renovating the apartments to increase their rental

value. As part of their renovation plan, the new owners vacated two of 

the apartment buildings but permitted tenants to remain in the third. 

Estes and Laswell planned to allow tenants to move from the 

unrenovated building into the newly renovated buildings as upgrades

were completed. 

Estes received the notice of violations on February 24. The 

violations were not prioritized, so Estes gave the list of violations to his 

general contractor without identifying which violations to address first. 

By March 31, CM Holdings had fixed fifty-eight violations. On an 
6

inspection on July 5, Leedom noted only six remaining violations. He 

imposed a $1090 fine for the guardrail-height violations. By July 13, the 

only remaining infraction was the height of the guardrails, and 

CM Holdings had ordered new forty-two-inch guardrails. 

After each inspection, Leedom sent CM Holdings a notice listing 

the violations and the remedial action required. Each notice contained a 

notification of the right to appeal the inspection, stating, 

APPEALS: Under section 60-102(a) 

(1) Any owner objecting to a violation cited in this 

Inspection Notice may file a written appeal with 

the Neighborhood Inspection Division requesting 

a hearing before the Housing Appeals Board. An 

appeal shall be filed within 10 days of the date of 

the Inspection Notice. Upon the discretion of the 

Neighborhood Inspection Officer for good cause 

shown, an untimely appeal may be accepted. 

. . . . 

At this hearing the appellant shall have the opportunity to be 

heard, the right to call witnesses and to be represented by 

counsel. 

CM Holdings never appealed any of the notices of violation. 

On July 13, ten days before the accident, Estes and Laswell 

appeared on behalf of CM Holdings at a regularly scheduled HAB meeting 

to request an extension of time to bring the property into compliance and 

to suspend the $1090 fine. CM Holdings was one of four property 

owners present requesting extensions at the monthly meeting, and all 

received extensions. Leedom and the HAB members applauded the 

progress CM Holdings had made on improving the properties. A board 

member asked if they could restrict access to the balconies until higher 

railings were installed, and Estes replied that he did not know. Estes 

explained, 

[T]he only reason they are not in compliance is because of 

the height. The code has changed. I mean they are all in 
7

good shape and they are, you know they’re functional. . . . 

[W]e have ordered all new railings for it. 

Estes told the board that CM Holdings wanted to replace the decking and 

patio doors on the twelve units at issue at the same time, which would 

take fifteen days after the materials arrived. He also stated, “[The 

guardrails] are all in good condition. They’re just not the right height.” A 

board member replied, 

Obviously, these folks are doing what they need to do to get 

this taken care of, but, you know, I don’t want my name 

associated with the kid that falls off the balcony because the 

railings aren’t the right height. 

Estes admitted the guardrail height was a health and safety issue but 

reminded the board that the guardrails had been at that height for fortyfive years without an accident. The board granted CM Holdings until 

October 7 to fix the violation. Neither the board nor CM Holdings raised 

the issue of whether the existing guardrails were grandfathered under 

the housing code.

The HAB issued a notice of its decision on July 20, stating, 

The above referenced property has been found to be in 

violation of the Municipal Code of the City of Des Moines, 

Iowa. The property was not brought into compliance as 

ordered by the Notice of Violation issued by the 

Neighborhood Inspection Division. The case was referred to 

the Housing Appeals Board (HAB) and the Board ordered the 

following:

The HAB granted an extension until 10-07-2011 to 

complete the repairs and suspended the $1,090.00 fine. 

However, the board also made a part of that motion that if 

repairs are not completed by the same date, this case will be 

referred to the Legal Department for prosecution. . . . 

Shannon Potts fell over the balcony rail to her death three days later.

On June 19, 2012, Shannon’s parents, Kathryn Winger, the 

executor of Shannon’s estate, and Timothy Potts (the plaintiffs) filed a 

lawsuit on behalf of Shannon’s estate and for loss of consortium. On 
8

September 5, 2013, CM Holdings moved for summary judgment on the 

ground that the extension from the HAB to install higher guardrails was 

a legal excuse precluding tort liability. On September 26, the plaintiffs 

moved for partial summary judgment on the ground that the violation of 

the forty-two-inch guardrail requirement constituted negligence per se as 

a matter of law. CM Holdings resisted the plaintiffs’ motion on several 

grounds: the HAB extension, the grandfather clause, and a legal 

argument that the doctrine of negligence per se does not apply to a local 

ordinance. The district court deferred ruling on the cross-motions for 

summary judgment until trial.

The jury trial began on November 4, 2013, and lasted five days. 

Housing inspector Leedom testified as follows regarding housing code 

compliance:

Q. Safety codes periodically change over time; is that 

true? A. That’s true. 

Q. Do you know when that apartment was originally 

built? A. No, I don’t. 

Q. Do you know if those 32-inch guardrails complied 

with the building code that may have existed when the 

building was originally built? A. I have to assume that they 

did. It would have to be inspected then. 

Q. Now, as a general proposition, if the code changes, 

does that automatically mean that everybody has to go 

immediately update their property? A. No. 

Q. And, in fact, if a code changes, absent any other 

circumstances, does a property remain compliant so long as 

it was compliant with the previous code? A. Yes. 

Q. What circumstances can arise that require a 

property owner to bring an older property up into compliance 

with a new code? A. If a portion of that property were to be 

decayed, defective to the point that it has to be replaced; or if 

that portion of the property had been altered in any way that 

did not meet the code of today. 

Q. Explain what type of alterations trigger a 

requirement that a property owner bring a particular 

building up to compliance. A. If someone makes an addition 

to a piece of property or if someone takes something away 

from it, anything that they might do to change the way it is 

used and a safety factor of it. 
9

Q. So if a particular part of a building has its use or 

its safety changed, then that can be one of those alterations 

that trigger the property owner to bring the building into 

compliance with the current code? A. Yes. 

Q. Did that happen with respect to 531 35th Street? 

A. Yes. 

Q. Explain that for the jury. A. The guardrails on the 

balconies at 531 had been altered, and the fact that they had 

— they’d put latticework attached to the guardrails to raise 

the height of the guardrail, and the extended height was 

nothing but latticework. 

That made an alteration in the way it looked, it made 

an alteration in the way it was used, and it made an unsafe 

alteration. 

Q. Explain how you felt that addition of the 

latticework could be unsafe for someone that would have 

been standing on that deck or balcony. A. Well, the 

additional height that was made by putting the latticework 

there, the latticework was not a material that would be 

strong enough to be used as a guardrail. It was just flimsy. 

The plaintiffs introduced pictures of the latticework. The plaintiffs 

then questioned Leedom regarding why the latticework was an alteration. 

Q. That difference in height was one of the problems 

that you felt required the change and the alteration of this 

property to be brought in compliance with the Des Moines

Housing Code? A. Yes. 

Leedom testified the property was in violation of the city ordinance. 

Q. [T]he guardrail was at 32 inches; the latticework 

went up above that? A. Correct. 

Q. On July 23, 2011, was CM Holdings, L.L.C., 

violating the law in that respect with respect to that 

property? A. I can say they were in violation of the city 

ordinance, yes. 

CM Holdings cross-examined Leedom about which code provisions 

applied to the Grand Stratford apartments:

Q. As far as you know, all of the components of this 

building were in full compliance with the building and the 

housing codes that would have been in effect back at that 

time in 1968? A. Yes. 

Q. Back then 32-inch guardrails would meet the code 

at that time? A. Probably, Yes. 
10

Q. Housing and building codes do change over time. 

You talked about that? A. Yes. 

Q. The height requirement for guardrails on new 

construction today is 42 inches in height? A. Correct. 

Q. Now, you acknowledged earlier that under the law 

that owners of existing property are not required to bring 

their building up to code every time that code changes? 

A. That’s correct. 

Q. As a general rule? A. Yes. 

Q. As a general rule, as long as the building is in 

compliance with the existing code on the day before the 

change takes place, then the building is deemed to be in 

compliance right on through; correct? A. Yes. 

Q. We call that routinely grandfathered in? A. That’s 

what it’s called, yeah. 

. . . . 

Q. If I look at the first paragraph there [of the 

Des Moines Municipal Housing Code section 60-5], the very 

last sentence of that first paragraph, I’m just going to read it, 

if you could follow along and confirm I’m reading it correctly. 

“Any structure that was in compliance on the day 

previous to the adoption of this code will be allowed to 

remain.” Did I read it correctly? A. Yes. 

Q. That’s the grandfather clause; right? A. That’s 

what it’s called. That’s the laymen’s term, yes. 

. . . . 

Q. [Y]ou never indicated any specific reason for the 

requirement that those railings be upgraded to the current 

code, not in those written reports; correct? A. Just the 

height requirement. 

Q. You indicate the height requirement but never 

indicated a reason why the new 42-inch requirement would 

be triggered? A. No. 

. . . .

Q. You stated that it was the attachment of that 

plastic lattice to the rails themselves that you feel triggered 

the requirement to bring the railings up to the current code? 

A. Yes. 

. . . . 

Q. The guardrails themselves—and here I’m talking 

about the actual metal guardrail that provides protection for 

people who go on the balconies—those guardrails were never 

actually modified by putting the lattice in place. 

It added an additional, just trying to—adding those 

plastic lattice pieces didn’t change the guardrails themselves; 

right? A. It gave the perception of a higher guardrail. 
11

Q. But it didn’t actually change the physical 

properties of the metal rails themselves? A. No. 

Q. Now, when you walk out on one of these balconies 

and you look at the guardrail with the lattice attached, the 

lattice would be on the outside of the railings; right? A. I 

believe it was. 

. . . . 

Q. The view of the actual railing is not blocked per se

by the lattice? A. The view of the iron is not, no. It’s not 

covered up. 

Q. In any event, this particular issue that you found 

was never specifically identified on the inspection notices. 

You simply indicated that the new height requirement of 42 

inches was in effect? A. Yes. 

On redirect, the plaintiffs probed how Leedom concluded that it 

was an alteration. 

Q. There was some discussion about your 

determination that the latticework was a change of use of the 

guardrails with [CM Holdings’ counsel]. Do you recall that 

discussion? A. Yes. 

Q. Was it the change of effect that you felt that might 

have on the perception of someone out there in terms of their 

safety that caused you to call it a change of use? A. Yes. 

You could see that the latticework is being broken and 

busted off above the original iron guardrail. 

Q. And, once again, did you state that that felt to you 

like a false sense of security for someone that was out there 

with that latticework around there? A. Yes. 

Q. After you made the determination that adding the 

latticework to the guardrail was a change of use, did you talk 

to anybody else about that determination? A. Yes. 

Q. Who did you talk to? A. I talked to my supervisor.

Q. Who was your supervisor back in 2011? 

A. Jack Hanson. 

Q. And what position did he hold at or for the City 

back in 2011? A. He agreed that it would be an alteration of 

the handrail—or guardrail. I’m sorry. Guardrail. 

The chairman of the HAB, Richard Bason, testified about the grandfather 

status:

Q. [D]o you recall whether or not the railings were 

complaint with the Des Moines Code? A. No. That’s why 
12

[Leedom] brought them before the board. They were not in 

compliance from the standpoint of — as I recall, at the 

original time that Mr. Leedom inspected the property they 

were found to be — there was something added. They were 

changed.

And therefore, because of that, he faulted the property 

because of this change, whether it was a latticework or 

something.

Prior to that it had passed code, I believe, many times 

—inspection. It passed inspection. But it’s not uncommon 

that when different inspectors go out, just because it passed 

the last four times doesn’t mean that he didn’t catch it this 

time. 

But the case here is the fact that it was changed. The

uses of it had been changed, modified. And that was, I 

believe, the main reason he faulted it as being then —

because it was changed, it eliminated the grandfather in his 

mind. And, therefore, he was bringing it and saying, Okay, 

we got to make it to current code. That’s the best I can 

remember on it.

The plaintiffs’ expert, Richard Hinrichs, a professor at Arizona 

State University, testified regarding why guardrails are required to be 

forty-two inches high:

The International Building Code is based on—that they 

arrived at the 42-inch minimum height based on where the 

average person’s center of gravity falls when standing. And 

I’m sure that there was originally research done in order to 

arrive at that height of 42 inches. 

But essentially if you have a 42-inch-high guardrail, 

for the vast majority of people, except for the tallest 

individuals, that 42 inches will be above the height, the 

standing height, of one’s center of gravity. 

And if you have something that’s above the center of 

gravity, you’re less likely to fall over it than if something is 

below the center of gravity. There’s something very important 

about that point that we call the center of gravity and how 

high it is relative to the top of the guardrail. 

CM Holdings proposed a jury instruction in pretrial submissions 

stating that if the jury found the apartments were grandfathered out of 
13

the guardrail requirement, it would not be negligent1 and another 

proposed instruction regarding legal excuse based on the HAB’s 

extension of time to correct the violations.2 At trial, the plaintiffs moved 

for a directed verdict on liability, and CM Holdings moved for a directed 

verdict on two grounds: legal excuse based on the HAB extension and the 

grandfather provision. The district court denied CM Holdings’ motion 

and granted the plaintiffs’ motion, ruling that the failure to install fortytwo-inch railings constituted negligence per se. 

During the jury instruction conference, CM Holdings did not reoffer 

the proposed jury instructions regarding the grandfather clause or legal 

excuse. The court, over CM Holdings’ objection, gave instruction 15, 

which stated, 

You are instructed that the Court has determined as a 

matter of law that pursuant to the Des Moines Municipal 

Housing Code the Defendant was required before July 23, 

2011, to install guardrails that were at least 42 inches in 

height on the balcony of Apartment No. 9 at 531–35th Street 

Des Moines, Iowa. 

1The proposed instruction stated, 

The Des Moines Housing Code contains the following provision in respect 

to multi-family dwellings: 

Section 60-5. Scope, applicability and exceptions.

Any structure that was in compliance on the day previous 

to the adoption of this code will be allowed to remain.

If you find that the Des Moines Housing Code Sec. 60-5 applied to 

[the Grand Stratford Apartments] on July 23, 2011, you must 

find the defendant was not in violation of the Des Moines Housing 

Code Section 60-127, and was not negligent as alleged in part ___ 

of Instruction No. ____. 

2That proposed instruction stated, 

If you find that Defendant CM Holdings had a valid extension of time 

issued by the City of Des Moines Housing Appeals Board to repair the 

guardrails that was in effect on July 23, 2011, you must find that 

defendant was not negligent as alleged in part ___ of Instruction No. ____. 

 
14

Defendant’s violation of law is negligence as to 

Instruction No. 16. 

CM Holdings objected to this negligence per se instruction as follows:

At this point, based upon the rulings of the Court, that 

verdict form appears to — although Defendant disagrees 

with the ruling, it appears that the verdict form is set up in a 

manner that doesn’t unfairly highlight that issue [the 

violation of the municipal housing code] yet again. . . .

. . . . 

[W]ith regard to the verdict form and more as a general 

matter, Defendant does object and would urge the Court to 

reconsider its ruling on the legal issues regarding its finding 

that there was a violation of the Municipal Housing Code. 

. . . . 

Defendant does believe that it’s an error, that it would 

be an error, to find that any of Defendant’s conduct was 

negligence per se under the record presented to the Court 

and would object to the jury being instructed to that and 

would object to the verdict form that does not have a specific 

question in which the jury would determine whether or not 

Defendant was at fault. 

The court overruled the objections without modifying the instruction.

Because the jury was instructed the court had already determined 

that CM Holdings was negligent, the special verdict directed the jury to 

decide the remaining issues of causation, comparative fault, and 

damages. The jury returned a verdict on November 13, finding the 

defendant’s fault caused the plaintiffs’ damages. The jury further found

Shannon was thirty-five percent at fault and CM Holdings was sixty-five 

percent at fault and awarded the plaintiffs $1,750,000 before the

reduction for Shannon’s fault. 

On December 20, CM Holdings moved for judgment 

notwithstanding the verdict (JNOV) and a new trial, claiming the district

court erred in finding a violation of the ordinances constituted negligence 
15

per se.3 On February 6, 2014, the district court granted the motion for a 

new trial. The district court ruled that the ordinance, as incorporated in 

Iowa’s Uniform Residential Landlord Tenant Act (IURLTA), Iowa Code 

section 562A.15 (2011), did not establish a sufficiently specific standard 

of care to allow plaintiffs to establish negligence per se. 

Plaintiffs appealed, arguing that the district court properly found 

negligence per se applied during trial, and CM Holdings cross-appealed 

on the issues of the grandfather clause and the legal-excuse doctrine. 

The plaintiffs responded to the cross-appeal by arguing CM Holdings

could not collaterally attack the HAB’s determination that the guardrails 

violated the housing code. We transferred the case to the court of 

appeals. A divided court of appeals affirmed on both appeals with three 

separate opinions. The majority held that our decision in Griglione v. 

Martin, 525 N.W.2d 810 (Iowa 1994), required a statewide standard for a 

statute or ordinance to establish negligence per se. The majority 

concluded the district court correctly set aside the verdict because 

“compliance with an ordinance that may or may not be grandfathered 

does not constitute conclusive proof of reasonableness.” The 

concurrence concluded the IURLTA created a statewide standard that 

satisfied Griglione but that our decision in Montgomery v. Engle, 179 

N.W.2d 478, 484 (Iowa 1970), precluded a negligence per se instruction 

because it held that “evidence of violation of the [housing] ordinance . . .

is prima facie evidence of negligence.” The dissent argued the jury 

verdict should be reinstated because the ordinance set a specific 

3CM Holdings also moved for remitter or new trial on grounds the damages 

awarded were excessive but has not pursued that argument on appeal. 

 
16

standard of conduct and our cases do not require a statewide standard. 

The remaining issues were not addressed by the court of appeals. 

Both parties applied for further review, which we granted.

II. Standard of Review. 

“The scope of our review of a district court’s ruling on a motion for 

a new trial depends on the grounds raised in the motion.” Clinton 

Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 

603, 609 (Iowa 2006) (quoting Richards v. Anderson Erickson Dairy Co., 

699 N.W.2d 676,678 (Iowa 2005)). The question of whether a duty exists 

is a question of law reviewed for correction of errors at law. See id. (“[I]f 

the motion was ‘based on a legal question, our review is on error.’ ” 

(quoting Richards, 699 N.W.2d at 678)); Porter v. Iowa Power & Light Co., 

217 N.W.2d 221, 228 (Iowa 1974) (“The question of existence of duty is a 

matter of law for the court.”). “We are slower to interfere with the grant 

of a new trial than with its denial.” Bryant v. Parr, 872 N.W.2d 366, 376 

(Iowa 2015) (quoting Cowan v. Flannery, 461 N.W.2d 155, 157 (Iowa 

1990)). 

“Whether the elements of issue preclusion are satisfied is a 

question of law.” Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 

22 (Iowa 2012) (quoting Grant v. Iowa Dep’t of Human Servs., 722 N.W.2d 

169, 173 (Iowa 2006)). 

“We review a district court judgment on a ruling for judgment 

notwithstanding the verdict for corrections of errors at law.” Spreitzer v. 

Hawkeye State Bank, 779 N.W.2d 726, 734 (Iowa 2009). “We examine 

whether substantial evidence supports each element of the claim . . . in a

light most favorable to the nonmoving party.” Id. “Evidence is 

substantial if a jury could reasonably infer a fact from the evidence.” Id. 
17

(quoting Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 

2001)). 

III. Analysis. 

The central fighting issue on appeal is whether CM Holdings was 

negligent as a matter of law by failing to replace the thirty-two-inch high 

balcony guardrails with forty-two-inch high guardrails. We must resolve 

several related questions. First, CM Holdings argues—and the court of 

appeals ultimately concluded—that under Griglione, only breach of a 

specific statewide statute or rule can constitute negligence per se, while 

the breach of a local ordinance cannot. We disagree and hold that the 

breach of a specific safety-related requirement in a municipal ordinance 

with the force of law may constitute negligence per se.

Second, CM Holdings argues its property was grandfathered out of 

the forty-two-inch high guardrail requirement. The plaintiffs argue that 

CM Holdings is bound by the HAB’s determination that its thirty-twoinch balcony guardrails with the attached lattice violated the code. The 

district court ruled that CM Holdings could not “collaterally attack” the 

HAB determination. We reframe the issue as one of issue preclusion and 

hold that the HAB finding is not preclusive in this tort action. 

Third, CM Holdings contends the HAB’s extension of time to install 

forty-two-inch railings excused its tort liability in the interim. We affirm 

the district court’s ruling rejecting that legal excuse.

Finally, we conclude neither side was entitled to a directed verdict 

on the grandfather issue under the existing record. That issue must be 

litigated on remand.

A. Can a Violation of a City Ordinance Constitute Negligence 

Per Se? The court of appeals construed Griglione to hold that only the 

breach of a statewide standard can constitute negligence per se and 
18

affirmed the order granting a new trial on that basis. The court of 

appeals understandably relied on this language from Griglione:

We believe rules of conduct that establish absolute 

standards of care, the violation of which is negligence per se, 

must be ordained by a state legislative body or an 

administrative agency regulating on a statewide basis under 

authority of the legislature. That is the position espoused in 

Restatement (Second) of Torts § 286 (1965) and followed by 

this court in Jorgensen [v. Horton, 206 N.W.2d 100, 102 

(Iowa 1973)]. We are persuaded that, for purposes of civil 

damages actions based on allegedly negligent actions by 

municipal employees, this principle is sound. 

525 N.W.2d at 812. The plaintiffs argued that language is dicta, but the 

court of appeals concluded that language is controlling. We note that 

language was unnecessary to the decision and is not supported by the 

cited authorities. We resolve the issue by overruling Griglione.

Our court has long recognized the violation of a municipal safety 

ordinance can be negligence per se. See Hedges v. Conder, 166 N.W.2d 

844, 850–51 (Iowa 1969) (holding party could be negligent per se for 

failing to follow city ordinance requiring use of crosswalks); Kisling v. 

Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554 (1932) (adopting 

general rule that violation of rules of the road in statutes or ordinances 

constitute negligence per se); Tobey v. Burlington, Cedar Rapids & N. Ry., 

94 Iowa 256, 265, 62 N.W. 761, 764 (1895) (holding violation of speed 

limit ordinance was negligence per se). However, the district court and 

court of appeals questioned the viability of this line of cases based on 

what we recently said in Griglione, a case that did not involve a municipal 

ordinance or code with the force of law.

The fighting issue in Griglione was whether the violation of a local

police department’s internal operating procedures constituted negligence 

per se. Paula Blythe received threatening phone calls from Rodney 

Griglione, her former paramour. 525 N.W.2d at 811. She called the 
19

Mt. Pleasant Police Department, and the responding police officer, 

Steven Martin, while interviewing her inside her trailer, heard someone 

yelling profanities outside. Officer Martin stepped outside in the dark 

and looked around with his flashlight. Id. He saw Griglione climbing 

over a fence with a large knife in his right hand. Id. Griglione ran 

towards Officer Martin, who drew his pistol and fired three times, fatally 

wounding Griglione. Id. at 811–12. 

Griglione’s widow sued Officer Martin, arguing that he was 

negligent per se for violating his department’s operating procedures by 

using deadly force and failing to call for backup or identify himself as a 

police officer before shooting. Id. at 812. The preamble to the operating 

procedures stated, 

The following Police Department Standard Operating 

Procedures are guidelines that are suggested for occurrences 

as specified as follows. They will never replace good, sound 

judgment or common sense, but when confronted with an 

unfamiliar situation should serve as an aid to the Officer. 

Id. The provisions regarding deadly force included the following 

statement:

The Deadly Force Policy is written to guide officers before the 

fact in approaching a potentially critical situation and not 

merely to assist in assessing the possible liability after the 

fact. The use of deadly force in effecting an arrest shall be 

based on the concept of protection of the officer or other 

person from the use, or threat of use of deadly force. 

Id. 

We concluded that violations of the department’s internal operating 

procedures were not negligence per se for two reasons. Id. First, we held 

that the operating procedures “do not involve the delineation of that type 

of precise standard required to invoke the negligence per se doctrine.” 

Id. Second, we stated that only the violation of a rule applying 
20

“statewide” could constitute negligence per se and cited Jorgensen and 

the Restatement (Second) of Torts section 286, in support of that 

proposition. Id. That statement was broader than necessary to decide 

the narrow issue of whether an officer’s violation of his department’s 

internal procedures is negligent per se. We could have answered “no”

without addressing local ordinances that have the force of law.

Moreover, the cited authorities contradict the proposition that only 

violations of statewide standards constitute negligence per se. In 

Jorgensen, we considered whether the defendant’s failure to follow a 

standard in a private construction safety code was negligence per se. 

206 N.W.2d at 102. We said,

Statutes and ordinances such as these under discussion are 

a legislative prescription of a suitable precaution, or a fixing 

by law of the standard of care which is required under the 

circumstances, and it must follow that a failure to observe 

the standard of care thus fixed by law is negligence.

Id. (emphasis added) (quoting Kisling, 214 Iowa at 915, 243 N.W. at 554). 

We ultimately held breach of the private safety code did not establish 

negligence per se, but we noted four times in that opinion that an 

ordinance may serve as the basis for negligence per se. Id. at 102–03. 

Similarly, the Restatement (Second) of Torts expressly includes 

ordinances as a basis for a standard of care the violation of which is 

negligent per se. Restatement (Second) of Torts § 286, at 25 (Am. Law 

Inst. 1965) (“The court may adopt as the standard of conduct of a 

reasonable man the requirements of a legislative enactment . . . .”); id.

§ 286 cmt. a (“ ‘Legislative enactment’ includes both statutes and 

ordinances.”). The Restatement (Third) of Torts continues to recognize

that the violation of a local ordinance is negligence per se. See 

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 14 
21

cmt. a, at 154–55 (Am. Law Inst. 2010) (“This Section most frequently 

applies to statutes adopted by state legislatures, but equally applies to 

regulations adopted by state administrative bodies, ordinances adopted 

by local councils, and federal statutes as well as regulations promulgated 

by federal agencies.”). 

CM Holdings and the court of appeals relied on Montgomery for the 

proposition that the violation of a municipal safety ordinance is merely 

evidence of negligence rather than negligence per se. 179 N.W.2d at

483–84. In Montgomery, we did not conclude the violation of an 

ordinance can never be negligence per se; rather we used a fact-specific,

case-by-case approach for determining “whether the alleged ordinance 

violation constitutes negligence per se or merely prima facie evidence of 

negligence . . . . Each case has been decided in light of the purpose and 

intent of the statute or ordinance involved.” Id. at 483. In Montgomery, 

the plaintiff was injured falling down a stairway that lacked a railing. Id.

at 480–81. The city municipal code required handrails on stairway exits. 

Id. at 481. We noted “the primary purpose of these statutes appears to 

be protection from fire hazards.” Id. (quoting Lattner v. Immaculate 

Conception Church, 255 Iowa 120, 129, 121 N.W.2d 639, 645 (1963)). 

We said that the violation of a statute is not negligence per se “unless the 

plaintiff [is] a member of the class the statute is designed to protect and 

the harm is one the enactment is designed to protect.” Id. (quoting 

Lattner, 255 Iowa at 129, 121 N.W.2d at 645). The plaintiff was not 

fleeing a fire—he was walking down the stairs. Id. at 478–81. 

Accordingly, we determined that the defendants’ violation of the 

ordinance should have been submitted to the jury with a prima facie

negligence instruction rather than a negligence per se instruction. Id. at 

484. 
22

We now conclude the scope of the class of people protected by the 

municipal handrail ordinance was viewed too narrowly in Montgomery as 

persons fleeing fires, rather than a broader class of people using such 

stairways routinely to enter or exit the apartment. To the extent 

Montgomery is inconsistent with our opinion today, we overrule it. 

In Koll v. Manatt’s Transportation Co., a truck driven by Michael 

Manatt and owned by Manatt’s Transportation Company backed over 

David Koll, killing him. 253 N.W.2d 265, 267 (Iowa 1977). The plaintiff 

alleged the truck lacked equipment required by OSHA and IOSHA 

regulations, specifically a backup alarm audible above the surrounding 

noise level. Id. at 269. Koll’s estate sued Manatt’s and argued the 

defendant’s violation of the regulation constituted negligence per se. We 

held that the 

violation by an employer of an OSHA or IOSHA standard is 

negligence per se as to his employee. Such a violation is 

evidence of negligence as to all persons who are likely to be 

exposed to injury as a result of the violation. 

Id. at 270. Accordingly, Koll was unable to establish negligence per se

against Manatt’s Transportation Company because he was not Manatt’s 

employee. Id. 

In Wiersgalla v. Garrett, we reiterated the governing standard as 

follows:

[I]f a statute or regulation . . . provides a rule of conduct 

specifically designed for the safety and protection of a certain 

class of persons, and a person within that class receives 

injuries as a proximate result of a violation of the statute or 

regulation, the injuries “would be actionable, as . . .

negligence per se.” To be actionable as such, however, “the 

harm for which the action is brought must be of the kind 

which the statute was intended to prevent; and the person 

injured, in order to recover, must be within the class which 

[the statute] was intended to protect.” 
23

486 N.W.2d 290, 292 (Iowa 1992) (citations omitted) (quoting Koll, 253 

N.W.2d at 270). We hold this standard applies equally to municipal 

ordinances. 

The ordinance at issue here requires forty-two-inch high guardrails

on second floor or higher balconies. The obvious purpose for requiring a 

forty-two-inch high guardrail on balconies above ground level is to 

protect persons from getting killed or injured falling off the balcony. 

Shannon clearly was within the scope of persons intended to be 

protected from injury by the municipal ordinance. The requirement is 

sufficiently specific to prescribe a standard of care the violation of which 

constitutes negligence per se. See O’Neil v. Windshire Copeland Assocs.,

L.P., 197 F. Supp. 2d 507, 510 (E.D. Va. 2002) (ruling that apartment 

owner was negligent per se for having balcony guardrail lower than 

required by city building code); Heath v. La Mariana Apartments, 180 

P.3d 664, 669–70 (N.M. 2008) (violation of guardrail spacing requirement 

in ordinance would be negligence per se but for grandfather provision 

excusing landlord from obligation to upgrade railings to current code); cf. 

Brichacek v. Hiskey, 401 N.W.2d 44, 47 (Iowa 1987) (holding Des Moines, 

Iowa, Municipal Code provision that required a “working lock” lacked the 

requisite specificity for negligence per se); Struve v. Payvandi, 740 

N.W.2d 436, 442–43 (Iowa Ct. App. 2007) (holding statutory requirement 

to maintain heating appliances in a safe and working order was not 

specific enough to support negligence per se theory). 

CM Holdings’ argument that only a violation of a statewide law can 

be negligent per se conflicts with Iowa’s public policy encouraging local 

control over residential housing for public health and safety. See 

generally Iowa Code § 364.1 (permitting a city to “exercise any power and 

perform any function it deems appropriate to . . . preserve and improve 
24

the peace, safety, health, welfare, comfort, and convenience of its 

residents”); Star Transp. Co. v. Mason City, 195 Iowa 930, 953, 192 N.W. 

873, 882 (1923) (“When power to regulate, license, and control is vested 

by the legislature in city councils, there is a broad presumption in favor 

of the validity of the ordinance . . . .”). The legislature has specifically 

allowed local housing ordinances more stringent than statewide 

standards in the IURLTA. See Iowa Code § 562A.15(1)(a) (requiring the 

landlord to follow greater duties imposed by local building or housing 

codes that materially affect health and safety).4 Our legislative 

enactments thus tolerate local variations in housing codes. Although 

building codes may differ on either side of a city’s boundary, buildings 

are in fixed locations. Building owners will not have to deal with 

inconsistent local codes at a single location. 

We see no good reason to limit application of the negligence per se

doctrine to laws of statewide application. The negligence per se doctrine 

also applies to local ordinances. We next address whether the district 

court correctly instructed the jury that CM Holdings violated the 

ordinance as a matter of a law. 

B. Does the Jury Instruction on Negligence Per Se Require a 

New Trial? CM Holdings argues it was entitled to a directed verdict 

because the grandfather provision in the ordinance applies as a matter of 

law to permit the thirty-two-inch guardrails, or alternatively, the HAB’s 

extension of time to install forty-two-inch guardrails excused tort 

liability. The district court rejected those arguments, ruling during trial 

4In Crawford v. Yotty, we left open the question whether “the IURLTA imposes 

statutory duties that are applicable to visitors of tenants.” 828 N.W.2d 295, 304 (Iowa 

2013), overruled on other grounds by Alcala v. Marriott Int’l, Inc., ___ N.W.2d ___, ___ & 

n.3 (Iowa 2016). We need not answer that question here because the municipal 

ordinance protects visitors as well as tenants using the apartment’s balcony. 

 
25

that CM Holdings could not “collaterally attack” the HAB’s determination

that it violated the guardrail-height ordinance and the extension was not 

a legal excuse for tort liability. The district court instructed the jury that 

the court had already determined CM Holdings had violated the 

ordinance and that violation constituted negligence per se. The district 

court then ordered a new trial based on its posttrial ruling that the 

ordinance did not support a negligence per se theory. Because we 

reverse that posttrial ruling above, we must decide whether it was 

prejudicial error to give that jury instruction. We conclude the HAB 

finding of a violation cannot be used by plaintiffs offensively in this tort 

action, and the HAB extension does not excuse tort liability. Whether 

the grandfather provision applies is a mixed question of law and fact to 

be decided on remand. 

1. Is CM Holdings bound by the HAB finding that it violated the 

guardrail ordinance? “Collateral estoppel” is also known as “issue 

preclusion.” Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 571 

(Iowa 2006). “Issue preclusion prevents parties ‘from relitigating in a 

subsequent action issues raised and resolved in [a] previous action.’ ” 

Emp’rs Mut. Cas. Co., 815 N.W.2d at 22 (quoting Soults Farms, Inc. v. 

Schafer, 797 N.W.2d 92, 103 (Iowa 2011)). The doctrine serves several 

purposes: protecting parties from the vexation of relitigating identical 

issues, furthering judicial economy by reducing unnecessary litigation,

and avoiding the problem of two authoritative but conflicting rulings on 

the same question. Id. We have given preclusive effect to an agency’s 

adjudicatory decisions in subsequent court proceedings under certain 

circumstances. See, e.g., City of Johnson v. Christenson, 718 N.W.2d 

290, 301–02 (Iowa 2006) (holding board of adjustment decision allowing 

nonconforming use had preclusive effect against city challenging land 
26

use in subsequent district court litigation); Gardner v. Hartford Ins. 

Accident & Indem. Co., 659 N.W.2d 198, 206–07 (Iowa 2003) (holding 

industrial commissioner’s approval of contested case settlement barred 

employee’s subsequent bad-faith tort claim against his employer’s 

insurer); Maquoketa Cmty. Sch. Dist. v. George, 193 N.W.2d 519, 521 

(Iowa 1972) (holding a board decision on appeal from contested case that 

students were not residents of school district had preclusive effect in 

court action against parents to collect tuition). “[A]gency action may be 

adjudicatory if the agency determines an individual’s rights, duties, and 

obligations created by past transactions or occurrences.” Iowa Elec. 

Light & Power Co. v. Lagle, 430 N.W.2d 393, 397 (Iowa 1988). 

But we have cautioned against routinely according preclusive effect 

to agency determinations because

[r]esolution of a[n administrative] dispute does not require 

formal court-like proceedings, and informality is considered 

a virtue of most administrative proceedings. When, however, 

collateral estoppel effect is given issue determinations made 

in an administrative proceeding, informality becomes a 

problem. Judicial proceedings operate within a system 

where each issue resolved is subject to appellate review. 

Parties develop the crucial issues, introduce the important 

evidence, and have an independent fact finder resolve legal 

and evidentiary conflicts. The reviewability of this process 

ensures clear and careful issue resolution. 

Administrative proceedings are not structured with the 

same goals in mind as those of formal court-like 

proceedings, especially with regard to issue determinations. 

Id. at 398 (quoting Rex R. Pershbacher, Rethinking Collateral Estoppel: 

Limiting the Preclusive Effect of Administrative Determinations in Judicial 

Proceedings, 35 Fla. L. Rev. 422, 452 (1983)). Thus, in Chamberlain, 

L.L.C., v. City of Ames, we rejected a property owner’s request to apply 

issue preclusion against a municipality. 757 N.W.2d 644, 649–50 (Iowa 

2008). The owner planned to build an apartment complex with loft space 
27

that could be used for sleeping. Id. at 646. Uncertain whether the lofts 

would comply with the ceiling-height requirements of the Ames Housing 

Code, the owner sought and obtained a code interpretation from a city 

official allowing the proposed use. Id. at 646–47. After construction was 

completed, the fire chief determined the ceiling height violated the code, 

a finding upheld by the city’s board of appeals. Id. at 647. The city 

issued a certificate of occupancy only after the owner barricaded the 

lofts. Id. The owner appealed to the district court, which granted 

summary judgment to the city. We affirmed because the city code 

allowed the city to override the “initial interpretation” of its employee. Id.

at 650. Because the initial code interpretation was “not an adjudication 

of rights unalterable by the city,” we held the owner could not use issue 

preclusion against the city. Id. at 649–50. Accordingly, we did not 

address the additional requirements for applying the doctrine. 

CM Holdings failed to appeal the finding that its balcony railings 

violated the code and instead sought and obtained an extension of time 

to install new railings. We consider the HAB order an “adjudication of 

rights” for purposes of applying issue preclusion. See id. We next must 

determine whether the plaintiffs, who were not parties to the HAB 

proceeding, satisfied the remaining requirements to apply issue 

preclusion offensively against CM Holdings.5

5The plaintiffs cite no cases applying issue preclusion against a property owner 

in a civil action based on a prior agency determination of a housing code violation. An 

Ohio appellate court rejected the use of issue preclusion based on unappealed building 

code violations. Credit Reporting Serv., Inc. v. Joseph Sylvester Constr. Co., 

No. 98 CA 30, 1999 WL 669514, at *3 (Ohio Ct. App. 1999). There, the contractor failed 

to appeal the building inspector’s notice of violation, and the building appeal board on 

the owner’s appeal found code violations. Id. at *1. The owner sued the contractor for 

the costs to remedy the violations, and the trial court entered summary judgment based 

on the agency finding of code violations. The appellate court reversed, holding that the 

doctrine of issue preclusion did not apply because the code violation was not “actually 

litigated” before the board. Id. at *2. The Ohio appellate court found the contractor’s 

 
28

The party invoking issue preclusion must establish four elements: 

(1) the issue in the present case must be identical, (2) the 

issue must have been raised and litigated in the prior action, 

(3) the issue must have been material and relevant to the 

disposition of the prior case, and (4) the determination of the 

issue in the prior action must have been essential to the 

resulting judgment.

Emp’rs Mut. Cas. Co., 815 N.W.2d at 22 (quoting Soults Farms, Inc., 797 

N.W.2d at 104). “Although offensive use of issue preclusion is allowed in 

Iowa[,] . . . it is more restrictively and cautiously applied than defensive 

issue preclusion.” Gardner, 659 N.W.2d at 203 (quoting Buckingham v. 

Fed. Land Bank Ass’n, 398 N.W.2d 873, 876 (Iowa 1987)). Offensive 

issue preclusion involves two extra considerations:

(1) whether the opposing party in the earlier action was 

afforded a full and fair opportunity to litigate the issues . . . , 

and (2) whether any other circumstances are present that 

would justify granting the party resisting issue preclusion 

occasion to relitigate the issues. 

Emp’rs Mut. Cas. Co., 815 N.W.2d at 22 (quoting Soults Farms, Inc., 797 

N.W.2d at 104). One circumstance in which issue preclusion does not 

apply is when “the party sought to be precluded . . . did not have an 

adequate . . . incentive to obtain a full and fair adjudication in the initial 

action.” Restatement (Second) of Judgments § 28(5)(c) (Am. Law Inst. 

1982); see Hunter v. City of Des Moines Mun. Hous. Auth., 742 N.W.2d 

578, 585 (Iowa 2007) (applying section 28(2) of the Restatement (Second) 

of Judgments); Dettmann v. Kruckenberg, 613 N.W.2d 238, 246, 249 

(Iowa 2000) (discussing and applying “incentive to litigate” requirement 

to affirm civil judgment giving preclusive effect to criminal conviction 

establishing identity of driver in fatal accident). An adequate incentive 

“ample opportunity to litigate the issues in the notice by appealing to the Board” was 

not sufficient to give the violations preclusive effect in the subsequent civil litigation. Id.

at *3. 

_________________________
29

may be lacking when only a small dollar amount is at stake in the prior 

proceeding. The United States Supreme Court, in the leading case on 

offensive issue preclusion, cautioned that the doctrine should not be 

applied against a defendant who “in the first action is sued for small or 

nominal damages [and thus] may have little incentive to defend 

vigorously.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330, 99 S. Ct. 

645, 651, 58 L. Ed. 2d 552, 561 (1979). In Dettmann, we quoted a 

leading commentator’s observation “that preclusive effect is given to a 

judgment only if the party precluded had the opportunity and incentive 

to litigate the matter fully.” 613 N.W.2d at 246 (quoting Allan D. Vestal, 

Issue Preclusion and Criminal Prosecutions, 65 Iowa L. Rev. 281, 340

(1980)). Thus, courts will decline to apply issue preclusion when the 

party to be precluded lacked an incentive to litigate in the prior 

proceeding. See, e.g., Bd. of Educ. v. Gray, 806 S.W.2d 400, 403 (Ky. Ct. 

App. 1991) (declining to give unemployment compensation decision 

preclusive effect in employee’s breach of contract action because of the 

“minimal” amount at stake in the agency proceeding);6 Hadley v. 

6Other courts have upheld the offensive use of issue preclusion against a party 

that litigated and lost an issue in an administrative proceeding, when the amount at 

stake provided the incentive to litigate in the administrative forum. For example, in 

Bellermann v. Fitchburg Gas & Electric Light Co., the Supreme Judicial Court of 

Massachusetts affirmed a trial court ruling applying issue preclusion against an electric 

utility in a civil action by its customers for damages resulting from a storm-related 

power outage. 18 N.E.3d 1050, 1069 (Mass. 2014). The Department of Public Utilities 

(DPU) had conducted a five-day adjudicatory hearing in which the utility was 

represented by counsel. Id. The DPU issued a 215-page decision with numerous 

findings on inadequacies in the utility’s storm preparedness and imposed a $4.6 million 

fine while denying recovery of nearly $7 million in storm-related costs. Id. at 1066. The

Bellermann court rejected the utility’s argument that it lacked “an adequate incentive to 

dispute its purported failures before the DPU.” Id. at 1067. 

Similarly, in United States v. Karlen, the United States Court of Appeals for the 

Eighth Circuit found an adequate incentive to litigate at the agency. 645 F.2d 635, 

639–40 (8th Cir. 1981) (affirming district court ruling giving preclusive effect to an 

agency decision). Merrill Karlen leased tribal land to graze cattle. Id. at 637. The 

Bureau of Indian Affairs (BIA) canceled his lease for excessive hay cutting and assessed 

 
30

Maxwell, 27 P.3d 600, 603–04 (Wash. 2001) (en banc) (concluding $95 

fine for traffic violation provided insufficient incentive to appeal finding of 

guilt or to justify use of issue preclusion in subsequent personal injury 

lawsuit).7 As the Washington Supreme Court recognized, “There must be 

sufficient motivation for a full and vigorous litigation of the issue” in the 

prior proceeding. Hadley, 27 P.3d at 604; see also 18 Charles A. Wright, 

et al., Federal Practice and Procedure § 4423, at 612 (2d ed. 2002) (“The 

most general independent concern reflected in the limitation of issue 

preclusion by the full and fair opportunity requirement goes to the 

incentive to litigate vigorously in the first action.”). 

A settlement may provide another explanation for a lack of 

incentive to litigate in the prior proceeding. See, e.g., Arizona v. 

California, 530 U.S. 392, 414, 120 S. Ct. 2304, 2319, 147 L. Ed. 2d 374, 

395 (2000) (declining to give preclusive effect to prior consent decree, 

noting “settlements ordinarily occasion no issue preclusion”); Adam v. 

State, 380 N.W.2d 716, 721 (Iowa 1986) (declining to give preclusive 

damages of $57,325. Id. Karlen requested a formal hearing. An administrative law 

judge (ALJ) conducted a two-day de novo hearing in which Karlen was represented by 

counsel. Id. at 637, 640. The ALJ issued a written ruling affirming cancellation of the 

lease but setting aside the damage award for lack of jurisdiction. Id. at 637. The ALJ’s 

decision was affirmed by the Interior Board of Indian Appeals. Id. Karlen did not seek 

judicial review. Id. The tribe’s trustee later sued Karlen for money damages, and the 

district court granted partial summary judgment against Karlen applying offensive issue 

preclusion based on the ALJ’s decision terminating the lease for excessive haying. Id. 

at 638. The Eighth Circuit affirmed, noting Karlen’s incentive to litigate the $57,325 

damage assessment. Id. at 640. 

7The Iowa Motor Vehicle Code provides that “No record of the conviction of a 

person for any violation of this chapter or other traffic regulations less than a felony 

shall be admissible as evidence in any court in any civil action.” Iowa Code § 321.489 

(2011). We have applied that statute to hold convictions for traffic violations resulting 

from a contested trial are not given res judicata effect in a subsequent civil action. 

Berding v. Thada, 243 N.W.2d 857, 859–60 (Iowa 1976). Guilty pleas, however, may 

come into evidence as admissions. Id. at 860. Guilty pleas and Alford pleas in which a 

court found a factual basis for the plea may also be given preclusive effect in 

subsequent civil actions. Emp’rs Mut. Cas. Co., 815 N.W.2d at 23–24. 

_________________________
31

effect to a prior district court ruling on a statutory exemption when the

losing party settled on appeal).

A key purpose of issue preclusion is to avoid the cost of 

unnecessary litigation. Emp’rs Mut. Cas. Co., 815 N.W.2d at 22. We 

would undermine that purpose if we gave preclusive effect to 

administrative decisions informally resolving alleged violations because 

raising the stakes preclusively would motivate parties to litigate instead 

of settling the agency matter. See Salida Sch. Dist. R-32-J v. Morrison, 

732 P.2d 1160, 1165 (Colo. 1987) (en banc) (declining to give preclusive 

effect to unemployment compensation decision in wrongful-termination 

lawsuit because to do so would result in more contested, lengthy 

hearings causing “judicial economy [to] be frustrated, rather than 

improved”). We do not want to discourage informal, voluntary 

resolutions. See Peak v. Adam, 799 N.W.2d 535, 543 (Iowa 2011) (“The 

law favors settlement of controversies.” (quoting Waechter v. Aluminum 

Co. of Am., 454 N.W.2d 565, 568 (Iowa 1990))). 

In our view, CM Holdings lacked an adequate incentive to litigate 

the grandfather issue before the HAB. At that time, it only faced a $1090 

fine (not a wrongful-death lawsuit) and essentially attained a compromise 

settlement through the order that suspended that fine and granted its 

requested extension to install the new railings. CM Holding’s new 

owners had recently acquired multiple distressed properties and had 

been working proactively with the city to correct numerous violations at 

the apartment complexes. CM Holdings had already ordered new fortytwo-inch balcony guardrails for installation. It had every reason to pick 

its battles with the housing officials and little or no reason to challenge 

the finding of a violation in the very order that granted its requested

extension to install the new guardrails and suspended the fine. The cost 
32

of an administrative appeal to litigate the grandfather issue presumably 

would have greatly exceeded the $1090 fine. 

We conclude the doctrine of offensive issue preclusion should not 

apply here because CM Holdings, having obtained its requested 

extension and suspension of the fine, lacked an adequate incentive to 

appeal the violation. Accordingly, we hold the district court erred by 

ruling that CM Holdings was bound by the HAB’s finding of a violation. 

Because we resolve the question on this ground, we do not reach the 

remaining requirements for offensive use of issue preclusion. 

Alternatively, the plaintiffs argue CM Holdings is bound by 

statements it made at the HAB meeting purportedly admitting the railing 

violated the ordinance:

If a party testifies deliberately to a concrete fact, not as a 

matter of opinion, estimate, appearance, inference, or 

uncertain memory, but as a considered circumstance of the 

case, his [or her] adversary is entitled to hold him [or her] to 

it as an informal judicial admission. 

Yockey v. State, 540 N.W.2d 418, 421 (Iowa 1995) (quoting Snittjer Grain 

Co. v. Koch, 246 Iowa 1118, 1127, 71 N.W.2d 29, 34 (1955)). Estes’ 

statements were not made under oath and were insufficiently concrete to 

establish a judicial admission. Estes and Laswell did not specifically 

admit the guardrails violated the municipal code. See id. at 421 (holding 

that a plaintiff who “expressly conceded during her testimony” that she 

was not fired in retaliation “had the effect of an informal judicial 

admission”). Although Estes said at the HAB meeting the guardrails with 

the attached lattice “were just not the right height,” he also noted that 

the “code ha[d] changed.” He stopped short of saying the grandfather 

provision did not apply. Accordingly, the statements at the HAB meeting 

fall short of a judicial admission in this tort action. Nor do we equate the
33

equivocal statements to a guilty plea or Alford plea for purposes of issue 

preclusion under Employers Mutual Casualty Co., as the plaintiffs 

contend. Such pleas require a judicial finding of a factual basis. Emp’rs 

Mut. Cas. Co., 815 N.W.2d at 24. That requirement is not met here. 

2. Was CM Holdings legally excused based on the HAB’s extension?

CM Holdings moved for a directed verdict and JNOV on grounds the 

HAB’s extension of time to allow installation of forty-two-inch guardrails 

excused tort liability. The district court correctly concluded the 

extension merely suspended enforcement of the administrative penalty 

and did not excuse tort liability. 

“The legal excuse doctrine allows a person to avoid the 

consequences of a particular act or type of conduct by showing 

justification for acts that otherwise would be considered negligent.” 

Rowling v. Sims, 732 N.W.2d 882, 885 (Iowa 2007). We have identified 

four categories of legal excuse:

(1) anything that would make it impossible to comply 

with the statute or ordinance;

(2) anything over which the [person] has no control 

which places [him or her] in a position contrary to the 

provisions of the statute or ordinance;

(3) where the [person] is confronted by an emergency 

not of [his or her] own making, and by reason of such an 

emergency, [he or she] fails to obey the statute; and

(4) where a statute specifically provides an excuse or 

exception. 

Hagenow v. Schmidt, 842 N.W.2d 661, 673 (Iowa 2014), overruled on 

other grounds by Alcala, ___ N.W.2d at ___ & n.3. A jury may only be 

instructed on the category of legal excuse that is supported by the 

evidence. See id. 

CM Holdings relies on section 60-101(3): “The housing appeals 

board shall . . . [r]ule on requests for additional time, provided that the 
34

granting of such additional time does not endanger the life, health or 

safety of the occupants or the integrity of the structure.” Des Moines, 

Iowa, Municipal Code § 60-101(3). An extension for time under this 

section does not specifically excuse the violation. A request for time is 

made when the HAB has determined there has been a violation of the 

housing code. See id. § 60-85(a)(2). The notice granting an extension of 

time explicitly states the Grand Stratford Apartments are in violation of 

the housing code. The suspension of a fine and extra time to complete 

repairs does not mean the property complies with the code during the

time allowed. To the contrary, the notice states, “The property was not 

brought into compliance” with the code. 

CM Holdings cites no case holding that an agency’s extension of 

time to remedy code violations provides the property owner a legal excuse 

in a third party’s tort action arising from the violation. We affirm the 

district court’s ruling rejecting CM Holdings’ legal excuse. 

3. Did the district court correctly rule the grandfather provision did 

not apply as a matter of law? CM Holdings argues the forty-two-inch 

guardrail requirement in the current municipal code did not apply to the 

Grand Stratford Apartments based on the grandfather provision in the 

housing code. The district court rejected that argument by erroneously 

applying collateral estoppel based on the HAB finding8 and did not 

address this issue in its posttrial ruling granting a new trial.9 

8The district court order stated,

The Court also finds that since the Defendant did not file an appeal with 

the HAB, the Notice of Inspection finding that the lattice did create a 

change that required the guardrail to [be] updated to be in compliance 

with the new code height of 42 inches, cannot now be collaterally 

attacked by the Defendant in this lawsuit. As noted above, Defendant 

never followed the appeal process, never filed an appeal from the city’s 

 
35

The purpose of a grandfather provision for property owners is to 

“avoid the harsh effect of the retroactive application” of a new rule of law. 

See State v. Finders, 743 N.W.2d 546, 549 (Iowa 2008) (discussing the 

grandfather provision in the sex offender residency restriction law). 

Housing codes include grandfather provisions to avoid constitutional 

challenges. As the Maine Supreme Court recently observed, 

A grandfather clause, which allows the limited continuance 

of nonconformities, is included in zoning ordinances in order 

to avoid takings challenges. It is designed to strike a balance 

between a municipality’s interest in abolishing 

nonconformities and the interests of property owners in 

maintaining land uses that were allowed when they 

purchased their property.

Day v. Town of Phippsburg, 110 A.3d 645, 649 (Me. 2015) (citation 

omitted). 

The grandfather provision in the Des Moines housing code states:

The provisions of this article shall apply to the maintenance, 

repair, equipment, use and occupancy of all residential 

rental buildings and accessory structures now in existence 

or hereafter constructed, rehabilitated, renovated or 

converted to residential use within the corporate limits . . . .

Any structure that was in compliance on the day previous to 

the adoption of this code will be allowed to remain. 

Des Moines, Iowa, Municipal Code § 60-5 (emphasis added). 

CM Holdings relies on trial testimony the thirty-two-inch balcony

railings were code-compliant the day before the current ordinance was 

enacted in 2005 and therefore should be grandfathered. The plaintiffs 

determination, and never challenged that it was obligated to install 42 

inch guardrails on the balconies. 

9CM Holdings argued in its motion for judgment notwithstanding the verdict 

that the guardrails were grandfathered in. The district court’s ruling on CM Holdings’ 

posttrial motions granted CM Holdings a new trial for instructing the jury that the 

violation of a city ordinance could be negligence per se and stated “it is unnecessary to 

address any other issues raised in Defendant’s post-trial motions.” 

_________________________
36

rely on trial testimony by the housing inspector and his supervisor that 

latticework installed on the balcony railings after 2005 created a false 

sense of security and triggered an obligation to upgrade the balcony 

guardrails to the current forty-two-inch height requirement. The district 

court never decided that specific issue, nor was it submitted to the jury.

Under the existing trial record, neither side was entitled to a directed 

verdict. Although the district court correctly denied CM Holdings’ 

motions for a directed verdict and JNOV on the grandfather provision

under this record, it erred by granting the plaintiffs’ motion for partial 

directed verdict and by instructing the jury, over defendant’s objection, 

that the thirty-two-inch high balconies constituted negligence per se.10 

That instructional error requires a new trial on liability and damages. 

10The plaintiffs contend CM Holdings waived error on the grandfather defense by 

failing to specifically object to the lack of a jury instruction on that issue or reoffer its 

own jury instruction at the instruction conference. We disagree. CM Holdings 

preserved error by objecting to the verdict form and Instruction No. 15 that instructed 

the jury the court had already determined the failure “to install guardrails that were at 

least 42 inches in height on the balcony” was a violation of law and was negligent. 

CM Holdings’ objection to that instruction and verdict form invited the court to 

reconsider its legal ruling and reiterated its disagreement with that ruling. That ruling 

rejected the grandfather argument that had been briefed and argued in the motions for 

summary judgment and motion for directed verdict, issues that were quite familiar to 

the trial judge. Counsel for CM Holdings clearly articulated the perceived error in the 

jury instructions: 

Defendant does believe that it’s an error, that it would be an 

error, to find that any of Defendant’s conduct was negligence per se 

under the record presented to the Court and would object to the jury 

being instructed to that and would object to the verdict form that does 

not have a specific question in which the jury would determine whether 

or not Defendant was at fault. 

Accordingly, CM Holdings’ objection was sufficiently specific to alert the district court to 

the legal error in its instruction and verdict form. See Iowa R. Civ. P. 1.924; Moser v. 

Stallings, 387 N.W.2d 599, 604 (Iowa 1986) (“The objection must be sufficiently specific 

to alert the trial court to the basis of the complaint so that if error does exist the court 

may correct it before placing the case in the hands of the jury.”). We have never 

required a party to offer its own jury instruction in addition to objecting to the court’s 

instruction in order to preserve error. 

 
37

See Bryant, 872 N.W.2d at 380 (“The general rule is that when a new 

trial is granted, all issues must be retried.” (quoting McElroy v. State, 703 

N.W.2d 385, 389 (Iowa 2005))); Heath, 180 P.3d at 670 (holding 

negligence per se theory is inapplicable when balcony railings may be 

grandfathered out of current building code). On remand, the parties may 

litigate the grandfather issue. 

IV. Conclusion. 

For those reasons, we vacate the decision of the court of appeals 

and reverse the district court’s posttrial rulings on the doctrine of 

negligence per se. We affirm the district court’s ruling rejecting the legalexcuse doctrine. We remand this case for a new trial consistent with this 

opinion. Costs shall be assessed equally to the plaintiffs and the 

defendant. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT ORDER AFFIRMED IN PART AND REVERSED IN PART; CASE 

REMANDED FOR NEW TRIAL.