IN THE SUPREME COURT OF IOWA

No. 08–0647

Filed November 13, 2009

CHARLES W. THOMPSON and

KARYL J. THOMPSON,

Appellants,

vs.

JAMES F. KACZINSKI and

MICHELLE K. LOCKWOOD,

Appellees.

On review from the Iowa Court of Appeals.

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

Goodhue, Judge.

Plaintiffs appeal from a summary judgment ruling dismissing their 

personal injury claims. COURT OF APPEALS DECISION VACATED; 

DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN 

PART, AND CASE REMANDED.

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

P.C., Adel, for appellants.

Sharon Soorholtz Greer and Melinda G. Young of Cartwright, 

Druker & Ryden, Marshalltown, for appellees.
2

HECHT, Justice.

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

crashed upon encountering a trampoline that had been displaced by the 

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

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

summary judgment, concluding the defendants owed no duty to the 

motorist under the circumstances and the personal injuries resulting 

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

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

judgment, we reverse and remand this case for trial. 

I. Factual and Procedural Background.

James Kaczinski and Michelle Lockwood resided in rural Madison 

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

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

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

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

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

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

thunderstorm moved through the Earlham area. Wind gusts from the 

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

the road. 

Later that morning, while driving from one church to another 

where he served as a pastor, Charles Thompson approached the 

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

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

rolled several times. Kaczinski and Lockwood were awakened by 

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

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

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

the yard while Kaczinski assisted Thompson.

Thompson and his wife filed suit, alleging Kaczinski and Lockwood 

breached statutory and common law duties by negligently allowing the 

trampoline to obstruct the roadway. Kaczinski and Lockwood moved for 

summary judgment, contending they owed no duty under the 

circumstances because the risk of the trampoline’s displacement from 

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

court granted the motion, concluding Kaczinski and Lockwood breached 

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

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

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

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

II. Scope of Review.

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

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

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

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

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

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

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

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

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

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

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

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

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

usually inappropriate in negligence cases). 
4

III. Discussion.

A. Iowa Code Section 318.3. The Thompsons contend Kaczinski 

and Lockwood breached a statutory duty to avoid obstructing a highway 

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

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

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

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

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

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

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

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

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

failure to secure their trampoline and prevent its displacement to the 

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

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

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

obstruction of the highway. We disagree. 

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

of statutory construction do not permit courts to search for meaning 

beyond its express terms. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 

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

their ordinary and usual sense with the meaning commonly attributed to 

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

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

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

of statutory construction when the explicit terms of a statute are 

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

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

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

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

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

intentional conduct or if conduct resulting in an unintentional 

obstruction is also covered. Accordingly, we shall apply our wellestablished rules in interpreting the ambiguous phrase.

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

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

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

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

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

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

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

which the ambiguous phrase is used and consider its relationship to 

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

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

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

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

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

The Thompsons contend the prohibition on placing an obstruction 

addresses intentional conduct while the prohibition on causing to be 

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

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

superfluous. 

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

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

rendered superfluous if it addresses intentional behavior. Consider the 

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

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

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

landowner has placed the obstruction herself, while in the second 

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

arguably intentional acts. We conclude the legislature included the 

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

simply hiring someone else to do the “placing.” 

A review of the entire statutory scheme further convinces us the 

legislature did not intend to address negligent or unintentional behavior. 

Iowa Code section 318.12 gives the highway authority the ability to 

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

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

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

nuisance punishable as provided in chapter 657.” Section 657.3 

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

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

section 318.3 in a way that would result in punishing ordinary 

negligence as an aggravated misdemeanor—a necessary result of 

interpreting the statute as the Thompsons urge. Accordingly, we 

conclude the district court correctly determined that under the facts 

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

and Kaczinski to refrain from negligently causing an obstruction to be 

placed in the right-of-way. 

B. Common Law Duty. An actionable claim of negligence 

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

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

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

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

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

duty to exercise reasonable care to prevent their personal property from 

obstructing the roadway and to remove their property from the roadway 

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

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

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

Our cases have suggested three factors should be considered in 

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

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

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

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

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

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

foreseeability of harm to the plaintiff, and public policy considerations 

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

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

have characterized the proposition that the relationship giving rise to a 

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

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

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

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

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

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

all relevant considerations that guide us to conclude a particular person 

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

N.W.2d at 258.

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

negligence actions has recently been revisited by drafters of the 
8

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

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

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

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

However, in exceptional cases, the general duty to exercise 

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

An exceptional case is one in which “an articulated countervailing 

principle or policy warrants denying or limiting liability in a particular 

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

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

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

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

liability or modifying the ordinary duty of reasonable care.” Id. § 7 cmt. j, 

at 98. Reasons of policy and principle justifying a departure from the 

general duty to exercise reasonable care do not depend on the 

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

 

Thus, in most cases involving physical harm, courts “need not concern 

themselves with the existence or content of this ordinary duty,” but 

instead may proceed directly to the elements of liability set forth in 

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

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

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

 1The substance of the Proposed Final Draft No. 1 of the Restatement (Third) of 

Torts has been finally approved by both the American Law Institute’s Council and its 

membership (with the exception of two comments which are not relevant to our analysis 

or disposition in this case). The draft has not been published in final form because the 

American Law Institute has expanded the project to include chapters on emotional 

harm and landowner liability. Upon completion of the additional chapters, the final text 

will be published. American Law Institute, Current Projects, 

http://www.ali.org/index.cfm?fuseaction=projects.proj_ip&projectid=16.
9

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

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

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

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

decides if the defendant failed to exercise reasonable care.

Foreseeable risk is an element in the determination of 

negligence. In order to determine whether appropriate care 

was exercised, the factfinder must assess the foreseeable 

risk at the time of the defendant’s alleged negligence. The 

extent of foreseeable risk depends on the specific facts of the 

case and cannot be usefully assessed for a category of cases; 

small changes in the facts may make a dramatic change in 

how much risk is foreseeable. . . . [C]ourts should leave 

such determinations to juries unless no reasonable person 

could differ on the matter.

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

foreseeability in no-duty determinations, but have now explicitly 

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

rulings to “articulated policy or principle in order to facilitate more 

transparent explanations of the reasons for a no-duty ruling and to 

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

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

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

The district court clearly considered foreseeability in concluding 

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

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

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

policy consideration justifies the exemption of Kaczinski and Lockwood—

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

care. We conclude no such principle or policy consideration exempts 

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

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

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

dangerous obstructions for travelers:

While an abutting landowner is not liable with 

respect to highway hazards over which he has no control, 

he is under an obligation to use reasonable care to keep his 

premises in such condition as not to create hazards in the 

adjoining highway. He must conduct operations on his 

land in such a manner as not to injure the highway 

traveler.

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

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

public policy to keep highways free from obstructions and hazards is 

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

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

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

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

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

determining Kaczinski and Lockwood owed no common law duty under 

the circumstances presented here. 

C. Causation. Although the memorandum filed by Kaczinski and 

Lockwood in support of their motion for summary judgment raised only 

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

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

the further reason that they did not establish a causal connection 

between their claimed injuries and damages and the acts and omissions 

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

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

not foreseeable, the court resolved the causation issue against the 

Thompsons as a matter of law.
11

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

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

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

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

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

latter component requires a policy determination of whether “the policy 

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

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

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

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

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

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

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

689, 693–94, 121 N.W. 48, 50 (1909)). 

We have previously applied the test articulated in the Restatement 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The formulation of legal or proximate cause outlined above has 

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

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

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

questions of proximate causation). Even had it been applied 

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

criticized for confusing factual determinations (substantial factor in 

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

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

approach to proximate cause questions and acknowledged the criticism 

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

law. Id. at 817. We do now. 

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

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

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

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

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

causes considerable confusion for juries because it does not clearly 

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

The confusion arises when jurors understand “proximate cause” as 

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

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

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

eliminate unnecessary confusion caused by the traditional vernacular, 
13

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

cause as “scope of liability.”2

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

cause” test articulated in the second Restatement included both the 

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

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

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

requirement has frequently been understood to apply to proximate cause 

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

was never intended to do so. Restatement (Third) § 29 cmt. a, at 576.

 

3

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

used “legal cause” as an umbrella term to address both concepts of factual cause and 

proximate cause. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 574. 

The drafters of the Restatement (Third) have also abandoned the use of the term “legal 

cause” because, like “proximate cause,” it “contributes to the misleading impression 

that limitations on liability somehow are about factual cause” and the term has never 

become widely accepted and utilized in tort law. Id. at 575.

 

Accordingly, to eliminate the resulting confusion of factual and policy 

determinations resulting from the Restatement (Second) formulation of 

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

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

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

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

address a situation in which there were two or more causes of the harm to plaintiff and 

either of the causes alone would have been sufficient to bring about the harm. In this 

situation, because a strict application of the cause-in-fact “but-for” test “would allow 

both tortfeasors to avoid liability, courts made the policy decision to nevertheless 

impose liability ‘if [the defendant’s conduct] was a material element and a substantial 

factor in bringing [the event] about.’ ” Gerst, 549 N.W.2d at 815 (quoting W. Page 

Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 267 (5th ed. 1984)). Citing 

Prosser, we suggested in Gerst that “the substantial factor test was originally intended 

to address a legal causation issue, not one of causation in fact.” Id. at 815–16. Having 

reexamined the question, we concur with the drafters of the Restatement (Third) on this 

point. The Restatement (Third) addresses the problem of multiple sufficient causes as 

part of the factual cause determination. See Restatement (Third) § 27, at 452. 
14

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

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

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

See id. § 27 cmt. j, at 427–29.4

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

clarified the essential role of policy considerations in the determination of 

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

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

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

intended to prevent the unjustified imposition of liability by “confining 

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

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

application, the drafters provide an illustration of a hunter returning 

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

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

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

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

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

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

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

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

foot. Id. 

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

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

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

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

the substantial factor test should be eliminated.
15

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

considers in advance of trial whether 

the plaintiff’s harm is beyond the scope of liability as a 

matter of law, courts must initially consider all of the range 

of harms risked by the defendant’s conduct that the jury 

could find as the basis for determining [the defendant’s] 

conduct tortious. Then, the court can compare the plaintiff’s 

harm with the range of harms risked by the defendant to 

determine whether a reasonable jury might find the former 

among the latter.

Id. at 580. 

The drafters advance several advantages of limiting liability in this 

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

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

and proportionality by limiting liability to harms that result from risks 

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

flexible enough to “accommodate fairness concerns raised by the specific 

facts of a case.” Id.

Foreseeability has previously played an important role in our 

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

example, 

“ ‘An injury that is the natural and probable consequence of 

an act of negligence is actionable, and such an act is the 

proximate cause of the injury. But an injury which could 

not have been foreseen or reasonably anticipated as the 

probable result of an act of negligence is not actionable and 

such an act is either the remote cause, or no cause 

whatever, of the injury.’ ”

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

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

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

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

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

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

843.

The drafters of the Restatement (Third) explain that foreseeability 

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

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

risks foreseeable that otherwise were not, thereby changing the scope-ofliability analysis.” Restatement (Third) § 29 cmt. d, at 584–85. In fact, 

they acknowledge the similarity between the risk standard they articulate 

and the foreseeability tests applied by most jurisdictions in making 

causation determinations in negligence cases. 

Properly understood, both the risk standard and a 

foreseeability test exclude liability for harms that were 

sufficiently unforeseeable at the time of the actor’s tortious 

conduct that they were not among the risks—potential 

harms—that made the actor negligent. . . . [W]hen scope of 

liability arises in a negligence case, the risks that make an

actor negligent are limited to foreseeable ones, and the 

factfinder must determine whether the type of harm that 

occurred is among those reasonably foreseeable potential 

harms that made the actor’s conduct negligent. 

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

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

standard because it “provides greater clarity, facilitates clearer analysis 

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

explain that a foreseeablity test “risks being misunderstood because of 

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

Id. at 595. 

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

persuaded by their explanation of the advantages of applying the risk 

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

adopt it. 
17

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

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

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

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

within the range of harms risked by disassembling the trampoline and 

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

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

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

stage. A reasonable fact finder could determine Kaczinski and Lockwood 

should have known high winds occasionally occur in Iowa in September 

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

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

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

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

Kaczinski and Lockwood did not discover their property on the nearby 

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

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

reasonable fact finder could find the harm suffered by the Thompsons 

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

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

question as a matter of law in this case.

IV. Conclusion.

The district court correctly determined Kaczinski and Lockwood 

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

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

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

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

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

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

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

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

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

COURT OF APPEALS DECISION VACATED; DISTRICT COURT 

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE 

REMANDED.

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

Streit, J., who takes no part.
19

#68/08–0647, Thompson v. Kaczinski

CADY, Justice (specially concurring).

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

separately to express two brief points. 

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

duty to reasonably secure outdoor personal property from being 

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

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

necessary because there may be a point when public-policy 

considerations would intervene to narrow the duty to exclude some items 

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

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

recycling containers. 

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

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

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

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

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

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

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

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

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

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

common knowledge. Consequently, the absence of such facts or 

common knowledge, not an unsupported conclusion, should supply the 

reason to deny summary judgment. 

Summary judgment can only be granted when the facts are clear 

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

(stating parties must establish the undisputed facts compelling a 

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

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

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

could understand that wind could enter under the trampoline tarp and 

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

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

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

undisputed facts showed the trampoline tarp was attached to the metal 

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

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

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

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

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

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

trampoline without knowing the particular facts and circumstances.