IN THE SUPREME COURT OF IOWA

No. 13–0778

Filed May 2, 2014

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

Appellees,

vs.

CITY OF OTTUMWA, IOWA,

Appellant.

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

Wilson, Judge.

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

notwithstanding the verdict after the jury awarded the plaintiffs damages 

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

management. REVERSED AND REMANDED.

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

Des Moines, for appellant.

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

appellees.
2

ZAGER, Justice.

Property owners sued a city alleging the city negligently approved a 

development that caused flooding to the downstream property owners’ 

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

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

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

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

I. Background Facts and Proceedings.

In the 1940s, the federal government constructed an officers’ club

at 3105 North Court Road in Wapello County, Iowa. At some point, the 

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

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

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

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

Road to use as their residence.

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

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

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

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

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

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

drains into Little Cedar Creek.

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

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

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

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

Quail Creek Addition. Since approval of the addition, approximately 

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

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

Cedar Creek, which lies south of the addition.

Located to the south of the Garrs’ residence, approximately sixtyfour feet from the Garrs’ garage, is Little Cedar Creek. The creek flows 

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

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

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

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

distance from the Garrs’ garage to the shoulder of Highway 63/149 is 

about sixty-eight feet.

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

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

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

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

Addition comprises about two percent of the total watershed.

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

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

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

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

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

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

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

Water eventually permeated the ground and put pressure on their 

basement wall.

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

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

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

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

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

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

money to clean up the basement and replace damaged property.

David estimated that at least a dozen times between 2008 and 

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

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

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

asked Caviness to have the City investigate the flooding problem.

David also tried to contact the Ottumwa Public Works director on 

multiple occasions, speaking with him just once in April 2010. 

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

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

never sent anyone from the public works department to investigate the 

flooding.

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

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

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

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

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

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

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

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

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

department to clean the culvert.

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

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

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

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

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

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

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

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

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

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

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

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

Ottumwa is located, were declared a disaster area. The declaration made 

disaster assistance available under the aegis of the Federal Emergency 

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

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

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

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

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

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

alleged the City negligently managed storm water by approving Quail 

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

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

storm water management policies. After the district court denied the 

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

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

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

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

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

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

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

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

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

was denied.

The City timely appealed, and we retained the appeal.

II. Issues on Appeal.

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

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

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

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

Act: section 670.4(3) (exempting any municipality from liability for 

discretionary functions), section 670.4(8) (exempting any municipality 

from liability for claims arising from negligent design or specification of 

public improvements or facilities that were constructed according to 

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

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

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

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

1 

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

establish a causal connection between the City’s allegedly negligent 

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

prejudiced by improperly admitted evidence and statements made by 

plaintiffs’ counsel during closing arguments. Because we find the 

causation issue dispositive, “we address only that issue.”

2 See Gerst v. 

 

1In 2013, as part of nonsubstantive code corrections, Iowa Code section 670.4 

underwent renumbering. See 2013 Iowa Acts ch. 30, § 196. The renumbered sections 

corresponding to those under which the City sought immunity are section 670.4(1)(c), 

(h), and (j). See id.

2The City did not argue on appeal that the Garrs failed to establish the City 

breached its duty of care. Therefore, we assume for purposes of this appeal that the 

City breached its duty of care.
7

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

causation when it was found to be dispositive).

III. Standard of Review.

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

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

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

review, we “determine whether sufficient evidence existed to justify 

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

State, 815 N.W.2d 731, 736 (Iowa 2012). To justify submitting the case 

to the jury, substantial evidence must support each element of the 

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

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

reasonable minds would accept the evidence as adequate to reach the 

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

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

nonmoving party.” Id.

IV. Discussion.

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

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

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

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

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

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

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

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

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

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

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

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

(Iowa 2005). Under that test,

“the defendant’s conduct is a cause in fact of the plaintiff’s 

harm if, but-for the defendant’s conduct, that harm would 

not have occurred. The but-for test also implies a negative. 

If the plaintiff would have suffered the same harm had the 

defendant not acted negligently, the defendant’s conduct is 

not a cause in fact of the harm.”

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

[hereinafter Dobbs, The Law of Torts]); accord Yates v. Iowa W. Racing 

Ass’n, 721 N.W.2d 762, 774 (Iowa 2006).

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

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

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

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

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

grant of summary judgment where plaintiffs failed to produce sufficient 

evidence on causation).

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

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

causal connection must exist between defendant’s breach and the 

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

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

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

damages each of four negligence claims on which the jury was 

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

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

specifications of negligence that were claimed to have caused the 

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

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

property owners from increased water flow due to development approved 

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

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

other downstream property owners from increased water flow caused by 

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

policies regarding storm water management and flooding. We now 

evaluate the evidence presented to support the Garrs’ claims these 

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

Hasselman, 596 N.W.2d at 546.

To establish causation, the Garrs presented the expert testimony of 

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

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

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

control measures and found water from the addition discharges into 

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

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

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

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

Dr. Melvin had not performed exact calculations supporting his 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

acknowledged his understanding that the flood underlying the Garrs’ 

lawsuit “put approximately 4 [feet] of water above the floor of the Garr 

residence and water was running over the road.” The report thus implies 

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

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

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

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

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

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

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

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

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

63/149.

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

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

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

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

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

the Garrs’ home on August 20, 2010.

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

City’s counsel asked:
11

Q. [W]ould you agree with me that if, in fact, there . . . 

was 10 inches of rain that fell in a very short period of time 

in that drainage area, then there was going to be water in the 

plaintiff’s home no matter what? A. Yes.

Q. No matter whether Quail Creek [Addition] existed or 

not; correct? A. Yes.

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

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

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

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

However, there may be more than one cause in fact of a plaintiff’s 

damages. See State v. Hennings, 791 N.W.2d 828, 836 (Iowa 2010) (“ ‘An 

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

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

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

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

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

court erred in giving instruction on superseding cause when plaintiff 

alleged school failed to adequately supervise hall monitor who assaulted 

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

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

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

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

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

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

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

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

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

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

test requires “using the imagination to create a counterfactual 
12

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

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

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

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

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

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

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

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

cause in fact of the harm.’ ” (quoting Dobbs, The Law of Torts § 168, at 

409)). Hence, Dr. Melvin’s testimony suggests the City’s negligent 

approval of Quail Creek Addition and its management of storm water 

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

Melvin presented expert testimony on the causal connection between the 

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

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

Though he offered his opinion about drainage control measures 

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

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

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

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

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

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

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

explained that “it is unnecessary to present expert testimony on 

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

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

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

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

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

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

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

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

N.W.2d at 793.

Courts have found that establishing a causal link between the 

topographical changes and flooding requires expert testimony. See 

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

flooding is a complex issue which must be addressed by experts.”);

Herriman v. United States, 8 Cl. Ct. 411, 420 (1985) (discounting the 

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

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

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

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

property was caused by approval of a residential development and 

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

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

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

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

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

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

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

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

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

637 (concluding evidence was insufficient to establish causation when 

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

required).
14

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

Garrs’ property would have occurred regardless of whether Quail Creek 

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

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

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

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

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

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

developments and golf course irrigation increased surface water drainage 

during a flood). We therefore conclude the district court erred by denying 

the City’s motion for judgment notwithstanding the verdict.

V. Conclusion.

As substantial evidence in the record did not support causation, 

there was insufficient evidence to support submitting the case to the 

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

judgment notwithstanding the verdict. We reverse the judgment entered 

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

City.

REVERSED AND REMANDED.