IN THE COURT OF APPEALS OF IOWA

No. 14-0412

Filed July 22, 2015

TAMCO PORK II, LLC and FARM 

BUREAU INSURANCE COMPANY,

as Subrogee of TAMCO PORK II, LLC,

Plaintiffs-Appellants,

vs.

HEARTLAND CO-OP and PRO 

BUILD, LLC,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Marshall County, James C. 

Ellefson, Judge. 

Appellant claims the trial court erred in not submitting a requested general 

negligence instruction to the jury. AFFIRMED.

Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for 

appellants.

David M. Dahlmeier and Mark R. Bradford of Bassford Remele, 

Minneapolis, Minnesota, and Sarah M. Kouri of Loney & Schueller, LLC, Des 

Moines, for appellee Heartland Co-op.

Samuel C. Anderson of Swisher & Cohrt, P.L.C., Waterloo, for appellee 

Pro Build, LLC.

Heard by Vogel, P.J., McDonald, J., and Zimmer, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 
2

MCDONALD, J.

Tamco Pork II, LLC, and Farm Bureau Mutual Insurance Company, as 

subrogee, (collectively, hereinafter “Tamco”) pursue this appeal following an 

adverse jury verdict in their action for negligence against Heartland Co-op and 

Pro Build LLC. Tamco’s claim against the defendants arises out of a fire 

occurring at Tamco’s newly renovated hog-production facility. On appeal, Tamco 

contends the district court erred in refusing to give Tamco’s requested general 

negligence (res ipsa loquitur) instruction to the jury.

I.

Tamco operated a hog-production facility near Gilman, Iowa. In 2008, 

Tamco decided to expand its hog-production facility. The expansion included 

construction of a gestation building, a farrowing building, and an office 

space/hallway that connected Tamco’s production buildings. Tamco directly 

contracted with Heartland to install the exterior infrastructure necessary to 

provide the facility with liquid propane gas, including installation of a liquid 

propane gas tank and liquid propane gas lines from the storage tank to the 

exterior of the facility. Tamco directly contracted with Pro Build to install the 

interior piping and plumbing systems, including installation of the gas lines from 

the exterior walls throughout the interior of the building to connect heaters and 

other devices. 

By the end of March 2009, the gestation building was finished and in use. 

The farrowing building and office/hallway were near completion. The primary 
3

remaining work was installation and connection of the exterior gas lines to the 

facility. 

On the morning of April 1, 2009, Jeff Strayer, the Heartland installer, 

arrived at Tamco’s facility to connect the exterior gas lines to the building. 

Between 9:30 and 10:00 a.m., he left the job site to purchase copper wire 

necessary to complete the project. At approximately the same time, Eric Sage, a 

Tamco employee, was moving hogs into the new farrowing building. Sage 

attempted to turn on the ventilation fans in the building, which was the first time 

they would have been turned on. Initially, the fans did not turn on. Sage toggled 

the switch back and forth several times until the ventilation fans began operating. 

He did not notice anything amiss. Shortly after 11:00 a.m., while working in the 

new gestation building, Sage heard hogs squealing. He saw black smoke 

coming from the doorway at the entrance to the new office/hallway. He opened 

the door and saw thick black smoke in the hallway and also felt heat. He 

estimated it was about 11:20 or 11:25 a.m. at this time. Sage exited the building, 

which was quickly consumed by fire. 

Tamco brought this action against Heartland and Pro Build. The case was 

submitted to the jury on a theory of negligence. With respect to Heartland, the 

marshalling instruction set forth three specifications of negligence: failing to

install the exterior propane gas system properly; failing to close all lines from the 

propane system to the building before introducing gas; and failing to verify all 

lines from the propane system to the building were closed before leaving the site. 

With respect to Pro Build, the marshalling instruction set forth three specifications 
4

of negligence: failing to cap the propane gas lines within the building site; failing 

to shut off valves within the building to inhibit the flow of propane gas before the 

installation was fully complete; and failing to inspect the lines in the building to 

verify they were capped and in the off position. In addition to its specifications of 

negligence, Tamco also requested a general negligence (res ipsa loquitur)

instruction. The proposed instruction provided, in relevant part:

Under the rule of general negligence, the occurrence of an injury 

allows you to conclude that the Defendants were negligent if the 

Plaintiffs prove (1) the fire was caused by fire causing materials 

under the exclusive control of the Defendants, and (2) the fire 

would not have occurred if ordinary care had been used.

The court did not submit the requested instruction. The jury returned a defense 

verdict, finding no negligence by either defendant. 

Tamco filed a motion for a new trial, arguing the res ipsa loquitur 

instruction should have been given to the jury. The district court denied the 

motion. The district court concluded the instrumentality causing the fire was 

never established. The district court also concluded the evidence did not 

establish who had control of the unknown instrumentality. Ultimately, the district 

court concluded the record did not support submission of the requested 

instruction. Tamco timely filed this appeal.

II.

There is a lurking inconsistency in our law regarding the scrutiny applied 

to the district court’s refusal to give a requested jury instruction. Traditionally, the 

refusal to give a requested instruction was reviewed for the correction of legal 

error. See, e.g., Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823 
5

(Iowa 2000) (“We review refusals to give jury instructions for correction of errors 

at law.”); Kuehn v. Jenkins, 100 N.W.2d 610, 617 (Iowa 1960) (“We have so 

often said that the theories of both parties to a lawsuit, so far as they are 

supported by substantial evidence, must be submitted, and that it is prejudicial 

error to fail to do so, that citation of authorities seems needless.”). In State v. 

Piper, 663 N.W.2d 894, 914 (Iowa 2003), overruled on other grounds by State v. 

Hanes, 790 N.W.2d 545, 551 (Iowa 2010), however, the court stated “review of 

alleged instructional error depends on the nature of the supposed error.” The 

Piper Court then cited two cases—one for the proposition that challenges to an 

instruction are reviewed for errors at law and one for the proposition that review 

of the refusal to give an instruction is reviewed for an abuse of discretion. See

Piper, 663 N.W.2d at 914 (citing State v. Walker, 600 N.W.2d 606 (Iowa 1999),

and State v. Langlet, 283 N.W.2d 330 (Iowa 1979)). Since Piper, both standards 

of review have been applied. Compare Deboom v. Raining Rose, Inc., 772 

N.W.2d 1, 5 (Iowa 2009) (stating that review is for correction of errors at law and 

that it is “error for a court to refuse to give a requested instruction where it 

correctly states the law, has application to the case, and is not stated elsewhere 

in the instructions”), and Banks v. Beckwith, 762 N.W.2d 149, 151 (Iowa 2009) 

(analyzing failure to give res ipsa loquitur instruction for correction of errors at 

law), with Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006) (“We 

review the related claim that the trial court should have given the defendant’s 

requested instructions for an abuse of discretion.”), Anderson v. State, 692 
6

N.W.2d 360, 363 (Iowa 2005) (same), and Kiesau v. Bantz, 686 N.W.2d 164, 171 

(Iowa 2004) (same and citing Piper). 

Our court implicitly noted and attempted to reconcile the inconsistency in 

our case law in a recent decision:

Initially, the parties disagree on the scope of our review of a 

district court’s refusal to give a jury instruction. Sanders maintains 

our review is for errors of law; the State counters that we must 

apply an abuse-of-discretion standard.

The State has time on its side, as a recent opinion states 

review of a refusal to give a jury instruction is for an abuse of 

discretion. See State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010). 

However, in that case, the proposed jury instruction related to an 

unsettled issue of law. Id. at 837. While the district court could 

have addressed and decided the unsettled issue, it instead chose 

to give a stock jury instruction. Id. at 835. The court’s decision was 

a paradigmatic discretionary act.

Here, in contrast, Sanders did not propose anything novel. 

He simply asked the court to instruct the jury on the wellestablished doctrine of justification, based on his belief that the 

record contained substantial evidence to support this theory. See 

State v. Sharkey, 311 N.W.2d 68, 72 (Iowa 1981) (“[W]here the 

record does not contain substantial evidence of self defense the 

trial court is not obligated to instruct the jury on justification.”). We 

believe that if there was substantial evidence of justification, the 

district court had no discretion to refuse the instruction. For that 

reason, we conclude our review is for errors of law. See State v. 

Rains, 574 N.W.2d 904, 915 (Iowa 1998) (reviewing district court’s 

refusal to submit a requested jury instruction on justification for 

errors of law); see also Pexa v. Auto Owners Ins. Co., 686 N.W.2d 

150, 160 (Iowa 2004) (“[A] trial court is generally required to give a 

requested instruction ‘when it states a correct rule of law having 

application to the facts of the case.’” (citation omitted)); State v. 

Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004) (reviewing refusal to 

give spoliation instruction for errors of law, which the court 

characterized as “our typical review of alleged instructional error”).

State v. Sanders, No. 10-0669, 2012 WL 1066487, at *2 (Iowa Ct. App. Mar. 28, 

2012). 
7

As noted in Sanders, the undeniable trend in the most recent cases is to 

apply an abuse-of-discretion standard to the refusal to give requested 

instructions. Id. For example: 

We review challenges to jury instructions for correction of 

errors at law.” State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013); see 

also Iowa R. App. P. 6.907. Yet, “[w]e review the related claim that 

the trial court should have given the defendant’s requested 

instructions for an abuse of discretion.” Summy v. City of Des 

Moines, 708 N.W.2d 333, 340 (Iowa 2006). Discretion is afforded 

the trial court in this instance because the decision involves an 

assessment of the evidence in the case. “When weighing 

sufficiency of evidence to support a requested instruction, we 

construe the evidence in a light most favorable to the party seeking 

submission.” Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). 

“‘Error in giving or refusing to give a jury instruction does not 

warrant reversal unless it results in prejudice to the complaining 

party.’” Hagenow v. Schmidt, 842 N.W.2d 661, 670 (Iowa 2014) 

(quoting Koenig v. Koenig, 766 N.W.2d 635, 637 (Iowa 2009)). 

“‘When the error is not of constitutional magnitude, the test of 

prejudice is whether it sufficiently appears that the rights of the 

complaining party have been injuriously affected or that the party 

has suffered a miscarriage of justice.’” State v. Marin, 788 N.W.2d 

833, 836 (Iowa 2010) (quoting State v. Gansz, 376 N.W.2d 887, 

891 (Iowa 1985)). “‘Errors in jury instructions are presumed 

prejudicial unless “the record affirmatively establishes there was no 

prejudice.”’” Asher v. OB–Gyn Specialists, P.C., 846 N.W.2d 492, 

496 (Iowa 2014) (quoting State v. Murray, 796 N.W.2d 907, 908 

(Iowa 2011)).

State v. Guerrero Cordero, 861 N.W.2d 253, 257-58 (Iowa 2015). See also

Asher, 846 N.W.2d at 496 (stating standard of review is abuse of discretion); 

State v. Miller, 841 N.W.2d 583, 585-86 (Iowa 2014) (same); Crawford v. Yotty, 

828 N.W.2d 295, 298 (Iowa 2013) (same); Frei, 831 N.W.2d at 73 (same). 

Five things should be noted regarding the more recent precedents

applying an abuse-of-discretion standard. First, the legal lineage of all the most 

recent precedents starts with Piper. Second, Piper does not state that the refusal 
8

to give a requested instruction, generally, is reviewed for an abuse of discretion. 

Instead, Piper states only that review of the district court’s “refusal to give an 

inference instruction on alleged spoliation” is for an abuse of discretion. See 

Piper, 663 N.W.2d at 914 (citing Langlet, 283 N.W.2d 330). Third, while the

Langlet Court applied an abuse of discretion standard, it did so because of the 

unique policy considerations and other discretionary decisions inherent in 

determining whether a spoliation instruction should be given in a particular case. 

See Langlet, 283 N.W.2d at 335. Specifically, a spoliation instruction is a form of 

discovery sanction. See Iowa R. Evid. 1.517(3) (stating that a party that fails to 

provide discovery as required by our rules may be sanctioned by an order stating 

designated facts shall be taken to be established for the purposes of the action 

as set forth in rule 1.517(2)(b)). The imposition of a discovery sanction is 

discretionary and will only be reversed when that discretion has been abused. 

See Suckow v. Boone State Bank & Trust Co., 314 N.W.2d 421, 425 (Iowa 

1982). Fourth, Langlet did not state that the refusal to give a requested jury 

instruction, generally, is reviewed for an abuse of discretion. See 283 N.W.2d at 

334-35. Thus, fifth and finally, the most recent precedents all ultimately rely on a 

single case that does not stand for the proposition for which it is cited. 

“The above discussion reveals that our precedents in this area are not 

surefooted.” Rivera v. Woodward Res. Ctr., No. 14-0194, 2015 WL 3958720, at 

*10 (Iowa June 30, 2015). The unsteady nature of the post-Piper precedents is 

highlighted by the manner in which review is actually conducted. An abuse of 

discretion standard implicitly recognizes that a decision “is a judgment call on the 
9

part of the trial court.” State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001). In 

other words, there is some play in the joints, and the reviewing court generally 

will not disturb the district court’s decision unless it “is based on a ground or 

reason that is clearly untenable or when the court’s discretion is exercised to a 

clearly unreasonable degree.” Pexa, 686 N.W.2d at 160. However, controlling 

case law provides the district court does not have any discretion to refuse to 

instruct the jury on the applicable law. Instead, “[t]he district court must give a 

requested jury instruction if the instruction (1) correctly states the law, (2) has 

application to the case, and (3) is not stated elsewhere in the instructions.” 

Weyerhaeuser, 620 N.W.2d at 823. Thus, in practice, because the “[p]arties are 

entitled to have their legal theories submitted to the jury if they are supported by 

the pleadings and substantial evidence in the record,’” id. at 823-24, we review 

the refusal to give an instruction for legal error. See, e.g., Hartsfield, 681 N.W.2d 

at 633 (concluding there was substantial evidence to support the instruction and 

the district court erred in failing to give the requested instruction). 

The lack of surefootedness of our post-Piper precedents is also 

demonstrated by the different standards of review applied to the district court’s 

refusal to give a requested instruction and the district court’s decision to give an 

instruction. In the former case, the standard of review is an abuse of discretion. 

In the latter case, the standard of review is for correction of legal error. Our most 

recent precedents state that abuse of discretion applies to the refusal to give an 

instruction “because the decision involves an assessment of the evidence in the 

case.” Guerrero Cordero, 861 N.W.2d at 258. The distinction does not hold up. 
10

The process of deciding whether or not to give a requested instruction always 

involves an assessment of the evidence in the case. The conclusion that a 

requested instruction should be refused or given based on the state of the 

evidence does not change the process by which the decision was made. 

Whatever conclusion is reached, the district court must make “an assessment of 

the evidence in the case” to determine whether the requested instruction “has 

application to the case.” 

For over 150 years, our courts have reviewed issues related to jury 

instructions for correction of legal error. See, e.g., Tyron v. Oxley, 3 Greene 289, 

290-91 (Iowa 1851). Piper created unnecessary confusion in the standard of 

review. If we were writing on a clean slate, we would adhere to the older line of 

authority holding that we review issues regarding jury instructions, including the 

decision to give or refuse an instruction, for correction of legal error. We are not 

writing on a clean slate, however. In the present case, we review the district 

court’s refusal to give Tamco’s requested instruction for an abuse of discretion, 

recognizing that the abuse of discretion standard is a subcategory of legal error, 

State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006) (stating that “any abuse of 

discretion necessarily results in legal error”), and that an erroneous application of 

the law constitutes an abuse of discretion. See Johnson v. Des Moines Metro. 

Wastewater Reclamation Auth., 814 N.W.2d 240, 244 (Iowa 2012).

III.

“Negligence must be proved, and the mere fact that an accident has 

occurred, with nothing more, is not evidence.” Brewster v. United States, 542 
11

N.W.2d 524, 528 (Iowa 1996) (alterations, citation, and internal marks omitted). 

Negligence may be proved by circumstantial evidence. See id. “Res ipsa 

loquitur (Latin phrase for ‘the thing speaks for itself’) is one type of circumstantial 

evidence.” Id. To be able to submit a case on the theory of res ipsa loquitur, 

there must be “substantial evidence that: (1) the injury was caused by an 

instrumentality under the exclusive control and management of the defendant, 

and (2) that the occurrence causing the injury is of such a type that in the 

ordinary course of things would not have happened if reasonable care had been 

used.” Banks, 762 N.W.2d at 152. The doctrine is “of limited scope, ordinarily to 

be applied sparingly and with caution and only where the facts and demands of 

justice make its application essential.” Humphrey v. Happy, 169 N.W.2d 565, 

569 (Iowa 1969). We conclude the requested instruction is not supported by 

substantial evidence and the district court did not abuse its discretion in refusing 

the instruction.

Fire happens, frequently in the absence of negligence. See Tedrow v. 

Des Moines Hous. Corp., 87 N.W.2d 463, 465 (Iowa 1958) (stating “[t]he mere 

happening of a fire with the resultant injuries raises no presumption of 

negligence.”). “[F]or the doctrine of res ipsa loquitur to apply, plaintiff must 

establish the cause of the fire.” Wilson v. Paul, 176 N.W.2d 807, 809 (Iowa 

1970). In other words, the plaintiff must establish the instrumentality or agency 

causing the fire. The plaintiff must provide evidence showing its “theory of 

causation is reasonably probable, not merely possible, and more probable than 

any other theory based on such evidence.” Id. (citation and internal quotation 
12

marks omitted); accord Nw. Nat’l Ins. Co. v. Raid Quarries Corp., 249 N.W.2d 

640, 644 (Iowa 1977). However, “[i]t is not necessary for the testimony to be so 

clear as to exclude every other possible theory.” Wilson, 176 N.W.2d at 809

(citation and internal marks omitted). Instead, the plaintiff is only required to 

provide substantial and competent evidence “that it was more likely than not 

negligence [caused] the event” to be allowed to submit a res ipsa loquitur

instruction. Banks, 762 N.W.2d at 153. 

There is not substantial evidence in this record establishing the 

instrumentality or agency causing the fire. Tamco hired three experts to opine on 

the issue: fire investigator George Howe; electrical engineer Todd Hartzler; and 

mechanical engineer Duane Wolf. Howe could testify only that the evidence was 

consistent with a propane fire, but he could not provide an opinion as to the

cause and origin of the fire:

Q. What is [the fact that the fire started quickly] most 

consistent with? . . . Is that most consistent with propane? A. It 

would certainly be consistent with propane, yes.

(Emphasis added). After being asked if he could identify the fire’s origin, Howe 

testified:

A. I can’t, no. I don’t feel I can. I can’t point to a room. I 

can’t point to the hallway and say, this is definitely the room of fire 

origin. 

Q. Well, not definitely. More probable than not? A. I can’t 

show you that either.

Howe was also unable to form an opinion regarding the ignition source of the fire:

Q. My understanding is that you can’t say what the ignition 

source is to any degree of certainty? A. That would be true. 

Q. You have not identified the ignition source. A. No. Just 

what I thought was more probable.
13

Q. Okay. And you can’t say where the fire originated beyond 

several various hypotheses? A. That’s correct.

Because of the extensive fire damage to the building, the other experts 

could fare no better. Hartzler opined that he did not believe this was an electrical 

fire, but he could not exclude certain electrical circuits as potential causes. He 

testified that he “really cannot comment on whether [small branch circuitry] did or 

did not cause the fire.” Wolf, a mechanical engineer, believed the fire was 

consistent with a propane-fed fire, but he could not form an opinion regarding the 

cause or origin of the fire. He ultimately concluded there was not enough 

evidence to establish that with any certainty: 

We believe [the gas] made entry into this room, but what was on 

the end of that piping, we just don’t know whether there was a valve 

there, whether that valve was open or closed, whether there was a 

cap on the end of that line to prevent the escape of gas if that valve 

did intentionally or inadvertently get turned on. We just don’t know. 

There was . . . insufficient physical evidence . . . to offer an opinion 

how that was piped.

Wolf further testified that he did not know what started the fire and that he could 

not form an opinion regarding the ignition source. 

Q. As I understand it, you don’t have any independent 

opinion as to ignition sources? A. No. 

Q. [Y]ou would agree that it’s certainly possible that one or 

more of these so-called missing pieces of the propane system that 

were in the northeast room were just straight away consumed by 

the fire; correct? A. It’s [certainly] possible.

Tamco contends that the instrumentality or agency causing the fire can be 

inferred from the mere fact of injury and that it thus need not identify the 

instrumentality or agency causing the fire to establish an entitlement to the res 

ipsa loquitur instruction. For this proposition, Tamco relies on Clinkscales v. 
14

Nelson Securities., Inc., 697 N.W.2d 836, 847 (Iowa 2005). In that case, the 

court stated “[r]es ipsa loquitur permits a jury to circumstantially ‘infer the cause 

of the injury from the naked fact of injury, and then to superadd the further 

inference that this inferred cause proceeded from negligence.’” Clinkscales, 697 

N.W.2d at 847 (quoting Benedick v. Potts, 40 A. 1067, 1069 (Md. 1898)). 

Clinkscales and several other Iowa cases have quoted Benedick v. Potts for the

proposition for which Tamco cites it,

1

but the quotation is incomplete and out of 

context. The quoted language in Benedick is that court’s description of the 

plaintiff’s argument in support of the res ipsa loquitur instruction, which that court 

soundly rejected:

In no instance can the bare fact that an injury has happened—of 

itself, and divorced from all the surrounding circumstances—justify 

the inference that the injury was caused by negligence. It is true 

that direct proof of negligence is not necessary. Like any other fact, 

negligence may be established by the proof of circumstances from 

which its existence may be inferred. But this inference must, after 

all, be a legitimate inference, and not a mere speculation or 

conjecture. There must be a logical relation and connection 

between the circumstances proved and the conclusion sought to be 

adduced from them. This principle is never departed from, and, in 

the very nature of things, it never can be disregarded. There are 

instances in which the circumstances surrounding an occurrence, 

and giving a character to it, are held, if unexplained, to indicate the 

antecedent or coincident existence of negligence as the efficient 

cause of an injury complained of. These are the instances where 

the doctrine of res ipsa loquitur is applied. This phrase, which, 

literally translated, means that “the thing speaks for itself,” is merely 

a short way of saying that the circumstances attendant upon an 

accident are themselves of such a character as to justify a jury in 

inferring negligence as the cause of that accident; and the doctrine 

which it embodies, though correct enough in itself, may be said to 

be applicable to two classes of cases only, viz.: “First, when the 

relation of carrier and passenger exists, and the accident arises 

 

1 See, e.g., Conner v. Menard, Inc., 705 N.W.2d 318, 320 (Iowa 2005); Brewster, 542 

N.W.2d at 529.
15

from some abnormal condition in the department of actual 

transportation; second, where the injury arises from some condition 

or event that is, in its very nature, so obviously destructive of the 

safety of person or property, and is so tortious in its quality as, in 

the first instance, at least, to permit no inference save that of 

negligence on the part of the person in the control of the injurious 

agency.” But it is obvious that in both instances more than the 

mere isolated, single, segregated fact that an injury has happened 

must be known. The injury, without more, does not necessarily 

speak, or indicate the cause of that injury. It is colorless. But the 

act that produced the injury, being made apparent, may, in the 

instances indicated, furnish the ground for a presumption that 

negligence set that act in motion. The maxim does not go to the 

extent of implying that you may, from the mere fact of an injury, 

infer what physical act produced that injury; but it means that when 

the physical act has been shown, or is apparent, and is not 

explained by the defendant, the conclusion that negligence 

superinduced it may be drawn, as a legitimate deduction of fact. It 

permits an inference that the known act which produced the injury 

was a negligent act, but it does not permit an inference as to what 

act did produce the injury. Negligence manifestly cannot be 

predicated of any act until you know what the act is. Until you know 

what did occasion an injury, you cannot say that the defendant was 

guilty of some negligence that produced that injury. There is 

therefore a difference between inferring, as a conclusion of fact, 

what it was that did the injury, and inferring from a known or proven 

act occasioning the injury that there was negligence in the act that 

did produce the injury. To the first category the maxim, “Res ipsa 

loquitur,” has no application. It is confined, when applicable at all, 

solely to the second. In no case where the thing which occasioned 

the injury is unknown has it ever been held that the maxim applies, 

because, when the thing which produced the injury is unknown, it 

cannot be said to speak, or to indicate the existence of causative 

negligence. . . . It follows, of course, that, when the act that caused 

the injury is wholly unknown or disclosed, it is simply and 

essentially impossible to affirm that there was a negligent act; and 

neither the doctrine of res ipsa loquitur, nor any other principle of 

presumption, can be invoked to fasten a liability upon the party 

charged with having by negligence caused the injury for the 

infliction of which a suit has been brought.

Now, in the case at bar[,] . . . [i]t is a case presenting not a 

single circumstance showing how, or by what agency, the injury 

occurred, and in which, with nothing but the isolated fact of the 

injury having happened being proved, it is insisted that the jury shall 

be allowed to speculate as to the cause that produced it, and then 

to infer from the cause thus assumed, but not established, that 
16

there was actionable negligence. It is not an attempt to infer 

negligence from an apparent cause, but to infer the cause of the 

injury from the naked fact of injury, and then to superadd the further 

inference that this inferred cause proceeded from negligence. . . . 

No case has gone to that extent, and no known principle can be 

cited to sanction such a position. There has been no circumstance 

shown which furnishes the foundation for an inference of 

negligence, and the circumstances which have been shown 

obviously do not bring the case within the doctrine of res ipsa 

loquitur.

Benedick, 40 A. at 1068-70 (emphasis added). Benedick, properly quoted in 

context, is wholly consistent with our cases involving the application of res ipsa 

loquitur to a fire. See, e.g., Wilson, 176 N.W.2d at 809 (“The doctrine of res ipsa 

loquitur does not raise any inference as to what did occasion the injury; but, after 

the evidence has established the thing which did occasion the injury, then under 

certain circumstances, this doctrine will raise an inference of negligence.”). 

Our cases uniformly hold that a plaintiff is not entitled to the res ipsa 

loquitur instruction without first establishing the instrumentality causing the injury 

was in the exclusive control or management of the defendant. See, e.g., Banks, 

762 N.W.2d at 152. That requirement cannot be satisfied where there is no 

evidence establishing the instrumentality or agency causing the injury. Thus, 

where, as here, the cause or instrumentality giving rise to the injury is unknown, 

the doctrine of res ipsa loquitur is simply inapplicable. See Highland Golf Club v. 

Sinclair Ref. Co., 59 F. Supp. 911, 919 (N.D. Iowa 1945) (finding the doctrine of 

res ipsa loquitur was inapplicable where cause and origin of fire was 

undetermined), superseded by statute, Comparative Fault Act, Iowa Code 

chapter 668; Raid Quarries Corp., 249 N.W.2d at 645 (“‘Plaintiff . . . requires 

evidence of the precise cause of the blaze.’”); Wilson, 176 N.W.2d at 809
17

(requiring plaintiff to establish the cause of the fire in order for the doctrine of res 

ipsa loquitur to apply); Tedrow, 87 N.W.2d at 466-67 (finding plaintiff did not 

establish cause of fire and res ipsa loquitur doctrine was inapplicable); Dodge v. 

McFall, 45 N.W.2d 501, 502-03 (Iowa 1951) (holding the res ipsa loquitur 

doctrine was inapplicable where the record was devoid of evidence as to how the

dance hall burned down). 

We also conclude there was not substantial evidence that the unknown

instrumentality giving rise to the injury was under the exclusive control and 

management of the defendants. The purpose of the exclusive control and 

management requirement is to “link the defendant with the probability, already 

established, that the accident was negligently caused. Failure to connect the 

defendant with the negligent event defeats the application of res ipsa loquitur.” 

Brewster, 542 N.W.2d at 528-29 (citations and internal quotations omitted). 

“Notwithstanding the ‘exclusive control’ language, a plaintiff relying on res ipsa 

loquitur need not prove that the defendant had control of the instrumentality when 

the injury occurred. The plaintiff need only show that the defendant controlled 

the instrumentality at the time of the alleged negligent act.” Weyerhaeuser, 620 

N.W.2d at 832 (citation and emphasis omitted). “Additionally, the plaintiff must 

show by a preponderance of the evidence . . . that (1) there was no change in the 

condition of the instrumentality, and (2) no intervening act that could have caused 

the event resulting in the injury.” Id. As noted above, the lack of evidence from 

which the instrumentality or act causing the fire could be inferred necessarily 

leads to the conclusion there is a lack of evidence the unidentified instrumentality 
18

was under “the exclusive control and management” of the defendants. See id.

(“The ‘exclusive control’ requirement is simply another way of saying that the 

injury must be traced to a specific instrumentality or cause for which the 

defendant was responsible.”).

In addition to the above-stated deficiency, Tamco’s argument that 

Heartland and Pro Build exercised concurrent or joint control over a single 

“propane system” is unavailing. Joint or concurrent control has been applied only 

in medical malpractice cases or cases based in part on vicarious liability. See

Wick v. Henderson, 485 N.W.2d 645, 650 (Iowa 1992); Verwers v. Rhoades, No. 

08-1149, 2009 WL 1212726, at *3 (Iowa Ct. App. May 6, 2009) (“Specifically with 

regard to medical malpractice cases, our supreme court has stated that the 

control requirement may be satisfied by concurrent or joint control.”). Neither is 

applicable here. Further, there is no evidence Heartland and Pro Build exercised 

exclusive control or management over a single “propane system.” Tamco 

contracted directly with Heartland and Pro Build for different projects. Heartland 

was to perform exterior work related to delivering propane from the source tank 

to the exterior of the buildings. Pro Build was hired to build the interior 

infrastructure necessary to deliver propane from the exterior wall to the interior 

heaters and devices. Here, the defendants had independent responsibility for 

separate instrumentalities. Tamco’s attempt to characterize the defendants’ work 

as joint control of a single “propane system,” would be akin to concluding a utility 

company responsible for delivering power to a home and an electrician fixing a 

broken outlet inside the home had joint control over an “electrical system” and 
19

were both liable for a fire speculated to have been caused by an unidentified 

electrical problem. No case goes that far. See Town of Reasnor v. Pyland 

Constr. Co., 229 N.W.2d 269, 272 (Iowa 1975) (“A special problem is faced by a 

plaintiff who seeks to apply the doctrine against multiple defendants. Unless 

there is vicarious liability or shared control, the logical rule usually is applied, that 

the plaintiff does not make out a preponderant case against either of two 

defendants by showing merely that he has been injured by the negligence of one 

or the other.”); Humphrey, 169 N.W.2d at 569 (“If it appears that two or more 

instrumentalities, only one of which was under defendant’s control, contributed to 

or may have contributed to the injury, the [res ipsa loquitur] doctrine cannot be 

invoked.”). We decline to do so here. 

Tamco argues that this court should adopt the Restatement (Third) of 

Torts section 17, which sets forth the Restatement’s formulation of the res ipsa 

loquitur doctrine, and that it would have been entitled to the instruction under the 

Restatement. We first note that Iowa has not yet even adopted the Restatement 

(Second) of Tort’s formulation of the doctrine. See Town of Reasnor, 229 

N.W.2d at 273 (noting the res ipsa doctrine as applied in Iowa is at variance with 

the Restatement (Second) in several respects). We also note that other than its 

mere assertion that adoption of the Restatement would make a difference in this 

case, Tamco has not explained how or why adoption of the Restatement would 

lead to a different outcome. We decline to make the argument on behalf of 

Tamco. Further, we conclude the district court did not abuse its discretion in 
20

failing to give an instruction not supported by the evidence under the controlling 

case law. 

IV.

For the above-stated reasons, we affirm the judgment of the district court. 

AFFIRMED.