IN THE COURT OF APPEALS OF IOWA

No. 20-1394

Filed February 16, 2022

DARYL BORTVIT AND SHEILA BORTVIT, INDIVIDUALLY AND AS COADMINISTRATORS OF THE ESTATE OF THOMAS LEE BORTVIT, and 

BRITTANY DAHL,

Plaintiffs-Appellants,

vs.

DONALD CHRISTENSEN and ROGER CHRISTENSEN,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Emmet County, Carl J. Petersen, 

Judge.

Plaintiffs appeal the district court’s order granting summary judgment in 

favor of defendants. AFFIRMED. 

Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City, for 

appellants.

Joel T. S. Greer of Bradshaw, Fowler, Proctor & Fairgrave, P.C., 

Marshalltown, for appellees.

Heard by Bower, C.J., Vaitheswaran, J., and Mullins, S.J.* Greer, J., takes 

no part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2022).
2

VAITHESWARAN, Judge.

Lee Christensen shot and killed Thomas Bortvit with a .45 caliber pistol. 

See State v. Christensen, 929 N.W.2d 646, 649–51 (Iowa 2019). A jury found 

Christensen guilty of second-degree murder. Id. at 649. The supreme court 

affirmed his conviction. Id. at 651.

Bortvit’s parents and sister sued Christensen’s uncle, Roger Christensen,

and grandfather, Donald Christensen, alleging they owned or occupied the farm at 

which the shooting occurred and they “failed to take reasonable steps to prevent 

the use of [the] property for the purpose of firing loaded pistols by persons under 

the age of 21, unsupervised.” They further alleged their actions or inactions 

constituted common law negligence and negligence per se.1 

Roger and Donald moved for summary judgment. They asserted there was 

no relationship that created a duty to protect Thomas from the acts of Christensen,

their actions or inactions were not within the scope of liability as to any harm to

Thomas, and their “conduct was not a factual cause” of the harm to Thomas. The 

district court granted the motions. This appeal followed.

Summary judgment is appropriate when “the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). Our 

review is for correction of errors at law. See Barker v. Capotosto, 875 N.W.2d 157, 

161 (Iowa 2016).

 

1 Other defendants were dismissed or settled with the Bortvits. 
3

A negligence claim requires proof of (1) the existence of a duty to exercise 

reasonable care, (2) breach of the duty of reasonable care, (3) factual cause and 

loss within the scope of liability, and (4) damages. See Hoyt v. Gutterz Bowl & 

Lounge, L.L.C., 829 N.W.2d 772, 777-81 (Iowa 2013); see also Royal Indem. Co.

v. Factory Mut. Ins. Co., 786 N.W.2d 839, 850 (Iowa 2010); Thompson v.

Kaczinski, 774 N.W.2d 829, 834, 837–39 (Iowa 2009); Pangburn v. Rookies, Inc., 

No. 20-1353, 2021 WL 4890988, at *4 (Iowa Ct. App. Oct. 20, 2021). 

The district court concluded Roger owed no duty to the Bortvits because he 

was not a possessor of the land but simply an employee of Donald, who owned 

the land. The court did not reach the remaining elements with respect to Roger.

As for Donald, the court concluded the loss fell outside his scope of liability as a 

matter of law. 

On appeal, the Bortvits argue Roger had an established duty to protect 

people on the farm and Roger breached the duty. They also assert the court 

improperly weighed the evidence with respect to both defendants. Roger and 

Donald respond by asking us to affirm the district court on the duty and scope-ofliability elements. 

We elect to focus on the scope of liability. Although the district court did not 

cite the element with respect to Roger, Roger sought summary judgment on that

issue, and we have authority to affirm on any ground raised by an appellee in the 

district court even if it was not the basis of the decision. See Chicago Cent. & 

Pacific R. Co. v. Calhoun Cnty. Bd. Of Sup’rs, 816 N.W.2d 367, 373 (Iowa 2012)

(We may “affirm a trial court on any basis appearing in the record and urged by the 

prevailing party.”); see also State ex rel. Dickey v Besler, 954 N.W.2d 425, 432 
4

(Iowa 2021) (citing St. Malachy Roman Catholic Congregation of Geneseo v.

Ingram, 841 N.W.2d 338, 351 n.9 (Iowa 2013) (stating we may affirm on any 

ground “raised below and reiterated in the briefing to this court”)). 

We recognize the scope of a defendant’s liability has been characterized as 

fact-driven. See Mitchell v. Cedar Rapids Cmty Sch. Dist., 832 N.W.2d 689, 699 

(Iowa 2013) (“Scope-of-liability determinations are fact-intensive, requiring 

consideration of the risks that make an actor’s conduct tortious and a determination 

of whether the harm at issue is a result of any of those risks.”); Hoyt, 829 N.W.2d 

at 779–81 (“Where there are contending plausible characterizations of the range 

of reasonably foreseeable harms arising from the defendant’s conduct leading to 

different outcomes and requiring the drawing of an arbitrary line, the case should 

be left to the judgment and common sense of the fact finder.”); Hill v. Damm, 804 

N.W.2d 95, 102–03 (Iowa Ct. App. 2011) (concluding the scope-of- liability element 

was for the jury). But the element has been decided as a matter of law. See Asher 

v. OB-Gyn Specialists, P.C., 846 N.W.2d 492, 499 (Iowa 2014) (overruled on other 

grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016) (“The . . .

injury was established as a matter of law to be within [the defendant’s] scope of 

liability.”).

“[T]o impose liability, something [the defendant] did or did not do must have 

increased the risk to [the plaintiff].” Royal Indem., 786 N.W.2d at 851. The Bortvits 

concede neither Roger nor Donald gave Lee the .45 caliber pistol; Lee’s father

owned it and stored it in a digitally-locked gun safe at his home, accessible only by 
5

him and by his son, Lee.2 The Bortvits also concede Roger “never saw the .45 

pistol being used” and “he didn’t know who was shooting it.” Their claim is 

premised entirely on the undisputed prior use of the farm for target shooting. In 

their view, “the subject of the illegal activity that Roger and Donald permitted to 

take place on the premises (unsupervised pistol shooting by underaged persons) 

should have imposed a greater foreseeability of the risk that harm would occur.” 

But what harm should they have foreseen and to whom? See Thompson, 774 

N.W.2d at 838 (“When . . . 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.”). To reiterate, the factual cause of Thomas’s death was not target 

shooting but Christensen’s act of shooting him. See Royal Indem., 786 N.W.2d at 

851 (“It was the fire and the inability to put it out that caused the loss” rather than 

the absence of a “proper and competent inspection” of the premises into which the 

plaintiff moved.); cf. Metro. Prop. & Cas. Ins. Co. v. Auto-Owners Mut. Ins. Co., 

924 N.W.2d 833, 836–37 (Iowa 2019) (noting farm was used for target shooting 

among other activities and a loaded rifle left on a bed that was accidentally 

discharged, resulting in death was a dangerous condition). And the legal cause of 

Thomas’s death was not target shooting but Lee’s fixed purpose to use a deadly 

 

2 The Bortvits laid out these facts about the gun in their statement of facts in 

resistance to the defense motions.
6

weapon on his classmate. See id. at 852 (“[E]ven where an act may be a factual 

cause, . . . ‘an act which merely places persons in the position where they sustain 

injury from an unrelated event is not for that reason a legal cause of the injury.’”

(citation omitted)). Even if we were to assume Roger and Donald turned a blind 

eye to unsupervised underage target shooting on the farm, a reasonable juror 

would not assign the risk of a purposeful shooting of a stranger to the farm among 

the risks arising from the recreational activity. See id. (“FM was not an insurer 

against any calamity that might befall Deere’s inventory but only for those events 

whose risk of occurrence was increased by FM’s actions. Royal failed to prove 

that a condition or deficiency overlooked by FM in its inspection increased the risk 

of the loss that actually occurred. We hold that the loss to Deere’s inventory was 

outside the scope of liability.”); Thompson, 774 N.W.2d at 838 (stating the risk 

principle “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”).

We conclude the loss sustained by the Bortvits was outside Roger

Christensen’s and Donald Christensen’s scope of liability as a matter of law. 

Accordingly, the district court did not err in granting the Christensens’ summary 

judgment motions.

AFFIRMED.