Rebecca Bybee and Bryce Bybee v. City of West Des Moines

IN THE COURT OF APPEALS OF IOWA _______________ No. 25-1684 Filed October 21, 2026 _______________ Rebecca Bybee and Bryce Bybee, Plaintiffs–Appellants, v. City of West Des Moines, Defendant–Appellee. _______________ Appeal from the Iowa District Court for Polk County, The Honorable Scott J. Beattie, Judge. _______________ REVERSED AND REMANDED _______________ Joel A. Beck (pro hac vice) (argued) of Ruchti & Beck, Pocatello, Idaho, and Thomas P. Tully of Tully Law Office, P.C., Polk City, attorneys for appellants. Jason C. Palmer (argued) and Georgia R. Rice of Lamson Dugan & Murray LLP, West Des Moines, attorneys for appellee. _______________ Heard at oral argument by Tabor, C.J., and Chicchelly and Sandy, JJ. Opinion by Tabor, C.J. 1 TABOR, Chief Judge. “Immunity is the exception while liability is the rule.” Breese v. City of Burlington, 945 N.W.2d 12, 23 (Iowa 2020). With that maxim in mind, we find the district court misapplied the statutory state-of-the-art exemption to Rebecca Bybee’s negligence and premises liability lawsuit against the city of West Des Moines. We also reject the city’s claim under the due care exemption. On these findings, we reverse the grant of summary judgment and remand for trial. I. Background Facts and Proceedings Bybee traveled from Idaho to attend her daughter’s tournament at the Holiday Park Softball Complex in West Des Moines in July 2020. After arriving at the complex, Bybee carried a diaper bag and a tray of Costco muffins as she followed the park’s sidewalk, surveying ahead for the diamond where her daughter was playing. Bybee perceived a fork in the sidewalk and turned in that direction. She testified: “[T]hat’s when I ended up on the ground.” The path had not forked. Instead, Bybee stepped into a drainage culvert which abutted the sidewalk and was made from the same concrete. The drop into the culvert was around fourteen inches. There was no color differentiation between the sidewalk and culvert materials, no guardrail, and no signage warning of the drop. Bybee’s ankle was broken, requiring surgery with two plates and ten screws. She alleges the fall resulted in permanent injury affecting her daily activities. 2  Bybee and her family took pictures of the sidewalk and drainage culvert on the day she fell: Later, when she hired an expert witness to investigate her case, he took more photographs of the culvert1 and the vertical drop from the sidewalk: 3  Bybee sued the city for negligence on a respondeat superior theory, alleging that the city or its agents failed to maintain safe premises at the complex.2 She also alleged premises liability, arguing that the city knew or should have known of the need to exercise reasonable care to prevent injury to pedestrians who were unfamiliar with the layout and conditions of the complex. In support of her claims, Bybee relied on an expert witness, Jeremy Bauer, a consultant in forensic injury biomechanics and accident reconstruction. Bauer examined the softball complex and opined that the city failed to abide by several guidelines and codes relevant to safe sidewalk and water drainage construction as well as best practices and principles of engineering.3 In its answer, the city denied liability and asserted qualified immunity under Iowa Code section 670.4(1) (2022) of the Iowa Municipal Tort Claims Act (IMTCA). The city then moved for summary judgment arguing there were no disputed facts and, as a matter of law, it was immune under the state- of-the-art defense at section 670.4(1), paragraphs (h) and (n). In addition to asserting the state-of-the-art defense, the city sought immunity under paragraph (c), which exempts government actors “exercising due care[] in 1 Bybee’s expert used the term “culvert,” which may be commonly understood to mean “a transverse drain or waterway (as under a road, railroad, or canal),” “a conduit for a culvert,” or “a bridge over a culvert.” Culvert, Webster’s Third New International Dictionary (2002). 2 Originally, Bybee’s petition also named Central Iowa Sports and Iowa USSSA Baseball LLC, the organizers of the tournament. She later voluntarily dismissed those defendants. Bybee’s husband filed claims for loss of consortium. 3 Bauer relied on the International Building Code (IBC) and Iowa Department of Transportation (DOT) guidelines, as well as general engineering principles promulgated by the National Institute for Occupational Safety and Health (NIOSH). 4 the execution of a statute, ordinance, or regulation.”4 Iowa Code § 670.4(1)(c). In support of its motion, the city submitted the deposition of Marco Alvarez, its parks superintendent. He recounted construction that occurred at Holiday Park in 2017 to improve compliance with the Americans with Disabilities Act (ADA), including installation of paved sidewalks in place of gravel pathways. According to Alvarez, the city consulted with an engineer to produce the construction plan in 2015. The city also produced a report from H.R. Veenstra, a licensed professional engineer. Veenstra responded to the opinions from Bauer, Bybee’s expert, that the city violated various safety codes or engineering guidelines. Veenstra expressed those standards were not mandatory or didn’t apply to the sidewalk. Veenstra opined that the city’s design was not unreasonable and that an attentive pedestrian could have seen and avoided the drainage flume. Thus, Veenstra concluded, the ADA improvements followed generally recognized engineering or safety standards and design theories in existence at the time of the construction. The district court concluded the city proved its state-of-the-art defense. The court noted that the city consulted with an engineer to prepare its construction plan, received the approval of a professional landscape architect, and complied with the city code on sidewalk construction. The court also relied on Veenstra’s view that the city did not violate any mandatory standards, as well as his opinion that the city complied with the ADA as to the slope and width of the sidewalk. At the same time, the court 4 Other affirmative defenses the city raised were intervening and superseding cause and comparative fault. Before trial, the city amended its answer to specify affirmative defenses for due-care and discretionary-function immunity under Iowa Code section 670.4(1)(c); design-and-construction immunity under section 670.4(1)(h) and (n); and the public duty doctrine; and it disclaimed liability for an open and obvious hazard. 5 recognized that “the ADA requirements focus on the sidewalk itself rather than adjacent drainage features that are not part of the accessible route.” Once the burden shifted to Bybee, the court found that she did not proffer sufficient evidence to rebut the city’s immunity claim. The court agreed with Veenstra that, except for the ADA, the standards cited by Bauer were “non-mandatory guidelines” or “entirely inapplicable to this type of sidewalk construction.” The court also found that Bybee failed to produce evidence that the sidewalk violated the ADA. As its bottom line, the court concluded that Bybee “failed to engender a question of material fact that the city failed to construct the sidewalk in accordance with applicable standards in place at the time,” so the city was immune from her claims under Iowa Code section 670.4(1), paragraphs (h) and (n). The district court did not address the city’s alternative arguments. Bybee appeals. II. Standard of Review “We review a summary judgment ruling for correction of errors at law.” Est. of Fields v. Shaw, 954 N.W.2d 451, 456 (Iowa Ct. App. 2020). “Summary judgment is appropriate when there is no genuine issue of material fact, the only conflict is the legal consequences of undisputed facts, and the moving party is entitled to judgment as a matter of law.” Id. (cleaned up). “An issue is genuine if the evidence in the record is such that a reasonable jury could return a verdict for the non-moving party.” Id. (cleaned up). As the moving party, the city has the burden to show the nonexistence of a material fact. See id. We view the evidence in the light most favorable to Bybee as the nonmoving party and draw every legitimate inference in her favor. See id. But Bybee cannot rest on her pleadings; she must set forth facts that show a genuine issue for trial. Id. If the facts are undisputed, we reverse only if the district court misapplied the law. Id. 6 III. Analysis Iowa Code section 670.2 provides that “every municipality is subject to liability for its torts” except as otherwise provided in the IMTCA. That statute is “an express imposition of liability” on municipalities. Thomas v. Gavin, 838 N.W.2d 518, 523 (Iowa 2013). “The only potentially applicable exceptions to liability within chapter 670 are found in section 670.4.” Id. At issue today are three of those exemptions. c. Any claim based upon an act or omission of an officer or employee of the municipality, exercising due care, in the execution of a statute, ordinance, or regulation whether the statute, ordinance or regulation is valid . . . . .... h. Any claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a public improvement as defined in section 384.37, subsection 19, or other public facility that was constructed or reconstructed in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction. . . . .... n. Any claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a public facility designed for recreational activities that was constructed or reconstructed, reasonably and in good faith, in accordance with generally recognized engineering or safety standards or design theories in existence at the time of the construction or reconstruction. Iowa Code § 670.4(1). 7  A. City’s Proof of Immunity We first examine the city’s state-of-the-art defense. Iowa Code § 670.4(1)(h), (n).5 The purpose of these provisions is to ensure that municipalities are not held to a standard that didn’t exist when they planned and constructed a public improvement or facility. See Breese, 945 N.W.2d at 22. In line with that goal, the IMTCA also immunizes municipalities from claims that they negligently failed to “upgrade, improve, or alter” an existing public improvement or facility to adhere to “new, changed, or altered design standards.” Iowa Code § 670.4(1)(h) (stating the rule and an exception for “claims based upon gross negligence”). A public improvement, under paragraph (h), includes “[s]idewalks” and “[d]rainage conduits, channels and levees.” Id. § 384.37(19)(b), (g). Since 2020, Iowa municipalities have been on notice that if they assert a state-of-the-art defense, they bear the initial burden of showing the immunity applies. Breese, 945 N.W.2d at 22–23; see also Iowa Code §§ 670.2, .4(1)(h), .4(1)(n). To do so, they must show “a generally recognized engineering or safety standard, criteria, or design theory in existence at the 5 Although paragraphs (h) and (n) apply to different kinds of public works, they both set out a version of the state-of-the-art affirmative defense. Contrast id. § 670.4(1)(h) (requiring proof of “a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction” of a “public improvement” or “other public facility”), with id. § 670.4(1)(n) (requiring proof of reasonable and good faith adherence to “generally recognized engineering or safety standards or design theories in existence at the time of the construction” of a “public facility designed for recreational activities”). Neither party advocates different interpretations of the quoted language from each paragraph. The district court treated them as identical and found the city immune under both paragraphs. 8 time of the construction or reconstruction” and their adherence to it. Iowa Code § 670.4(1)(h). On appeal, Bybee argues the city failed to make this showing and, even if it did, she presented enough rebuttal evidence to generate genuine issues of material fact whether the city met the engineering and safety standards in existence during the 2015 through 2017 planning and construction of the improvements to the softball complex. See Breese, 945 N.W.2d at 23–24.6 We start with the city’s pleadings. In an interrogatory response, the city said the improvements aimed to provide “accessible pedestrian access.” Parks superintendent Alvarez explained that the purpose of the plan, titled “Holiday Park Softball ADA Improvements,” was to replace gravel pathways with concrete sidewalks. Alvarez also noted that the city hired an engineer to produce the plan, which received approval from a landscape architect.7 Also on the city’s behalf, engineering expert Veenstra reported that the city constructed a six-foot wide sidewalk at the softball complex with a 6 Because the city of Burlington had no notice of its initial burden of proof before Breese changed the law, it had not affirmatively pleaded any standards, criteria, or theories. Breese, 945 N.W.2d at 24. Given that situation, the supreme court decided the plaintiff’s assertions generated a genuine issue of material fact whether the city adhered to such standards. Id. As such, the supreme court “reverse[d] the district court’s summary judgment dismissing [the claims] and remand[ed] for trial on the merits.” Id. A footnote added, “On remand, the City will bear the burden to prove its state-of-the-art defense,” so the city had a second chance at proving its immunity to the jury. Id. at 24 n.2. Bybee requests that same outcome here. 7 The title sheet of the plan bears an ink stamp from Casey Byers, a professional landscape architect, who certified that “the portion of this technical submission described below was prepared by me or under my direct supervision and responsible charge.” 9 “sharp drop off” to “drainage flumes”8 extending five to six feet to the sides. He asserted the only mandatory standards applicable to the city’s plan were the 2010 ADA requirements (for example, handrails on ramps with elevations of six inches or more) but those requirements applied only to the sidewalk itself, not the drainage flumes. The remainder of Veenstra’s report focused on contradicting the opinions of Bauer, Bybee’s expert, on the governing codes and construction manuals. For example, Veenstra insisted that the IBC only applied to walkways leading to or from a building and only required a guardrail if there was a thirty-inch vertical drop from the edge of the sidewalk. He also noted that the DOT design guidelines for pedestrian paths incorporated the IBC’s requirements but did not apply to this case because the drop off was less than thirty inches. Another part of the DOT manual provided design criteria for shared-use paths, which Veenstra found inapposite because the softball complex sidewalks were not intended for bicycles, only pedestrians. He also stressed that the DOT design manual was nonmandatory and offered only “guidelines” on construction. Veenstra concluded from his review of the ADA—as well as the IBC and DOT design guidance—that “the sidewalk in question is not in violation of any mandatory requirement or criteria.” In finding the city carried its burden under paragraphs (h) and (n), the district court pointed to the city’s use of an engineer and a landscape architect in designing the sidewalk to comply with the ADA requirements. The court then relied on Veenstra’s report to conclude the city established 8 Veenstra used the term “drainage flume” throughout his report, defining it as “the concrete sections that extend perpendicular to the sidewalk where the storm sewer is located under the sidewalk.” 10 that its improvements to the softball complex were in accordance with “generally recognized engineering standards.” But no evidence in the record shows any engineering or safety standards articulated by either the city’s engineer or the landscape architect. And we reject the city’s assertion that meeting ADA standards is sufficient to show the improvements complied with “generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction.” See Iowa Code § 670.4(h); see also id. § 670.4(n). As for Veenstra’s report, by focusing on the sidewalk, the city’s expert never identified a state-of-the-art standard addressing the design or construction of the drainage flumes, which were part of the overall plan for improvement at the softball complex. See Iowa Code § 384.37(19)(b), (g). After combing the record, we find the city’s only description of what might arguably be considered an engineering or safety standard came from Veenstra when he explained that, even when not mandatory, planners should consider whether their sidewalk design is “unreasonable or creates a hazard.” Veenstra opined that sidewalk designers can reasonably “assume pedestrians will be attentive to the configuration of sidewalks and the intended path of travel,” and that the city’s design and construction was neither unreasonable nor created a hazard. As a licensed engineer, Veenstra found the city acted in accordance with generally recognized engineering and safety standards and design theories in existence at the time. Based on that finding, we will assume without deciding that the city carried its initial burden to show it was entitled to invoke the state-of-the-art exemption. 11  B. Bybee’s Rebuttal Evidence Now we shift to whether Bybee’s evidence generated a genuine issue of material fact rebutting the city’s claim of immunity. To illustrate the hazardous conditions, Bybee submitted photographs of the complex from the day of her fall. But primarily she relied on Bauer’s expert opinion concerning the “foreseeable hazard of the culverts.” Bauer reported that even nonmandatory standards are relevant to generally recognized engineering and safety standards and should be considered as part of improvement designs. He described the legal requirements of the ADA and other codes as “the minimum level of safety necessary to prevent accidents and/or injuries,” and pointed out that they “do not account for site-specific risks, such as the unique geometry in Holiday Park.” He further opined that, mandatory or not, the city failed to respect construction guidance from the ADA, the IBC, and the 2014 Iowa DOT design manual. On this point, we disagree with the city’s argument that nonmandatory guidelines cannot serve as proof of relevant engineering or safety standards, criteria, or theories. See generally Breese, 945 N.W.2d at 24 (noting that an expert witness cited a DOT publication and two publications by a professional association of highway and transportation officials to generate a fact question). Bauer also criticized the city’s focus on the design and construction of the sidewalk. He testified that the relevant engineering and safety standards required also taking the culvert design into account. He challenged Veenstra’s opinion that an attentive pedestrian should have observed that the culvert was not part of the walkway, identifying relevant theories such as hazard recognition, gait disturbance, conspicuity, and expectancy. He pointed out that Bybee was unable to identify that she was stepping into a culvert because it was visually indistinguishable from the sidewalk. In 12 Bauer’s view, it was unreasonable to believe pedestrians at the park would always stay on the sidewalks. Instead, he opined that “design of a sidewalk must consider human performance [and] behavior,” rather than “leaving a hole in the middle of a field” and “leaving it up to the user of your facility to keep themselves . . . safe.” Bauer further explained that general engineering principles provide three hazard-control strategies: designing the hazard out of the plan, protecting users from the hazard, and warning users about the hazard. In his view, the city followed none of these strategies. In naming the relevant concepts, Bauer cited articles in engineering publications, safety textbooks, and standards promulgated by the NIOSH and the Centers for Disease Control, that were available at the time of design and construction. 13  Finally, Bauer pointed out that the city adhered to safety standards in other areas of the park where culverts were properly separated from the sidewalk with a contrasting strip of grass at least eighteen inches wide, applying the rule of conspicuity to visually separate the walkway from the potential hazard of the drop into the culverts. The district court did not consider Bauer’s expert opinion in granting summary judgment. Instead, the court erroneously required Bybee to point 14 to a violation of a construction law, evidence she didn’t have to produce to generate disputed fact issues. On this record, Bybee has generated genuine issues of material fact concerning the engineering and safety standards, criteria, or theories that existed at the time the city planned and constructed these improvements. See Breese, 945 N.W.2d at 24 (noting standard favorable to nonmoving party). She also generated fact questions on whether the city complied with the standards, criteria, and theories discussed by both experts. How much weight to give the conflicting expert opinions is for the jury to decide. But viewing all the evidence in the light most favorable to Bybee, a reasonable jury could conclude that the state-of-the-art defense did not shield the city from liability. Bybee’s expert offered opinions and industry research that undermined Veenstra’s view that reasonable pedestrians would avoid the culvert. The district court erred in granting the city’s motion for summary judgment based on the state-of-the-art defense. C. Due Care Immunity At the city’s request, we consider an alternative ground not decided by the district court. See Little v. Davis, 974 N.W.2d 70, 73 (Iowa 2022) (“We can affirm the district court’s grant of summary judgment on any ground urged on appeal that was also raised in the district court.”). Among the defenses raised by the city in the district court, it reprises only the “due care” immunity under section 670.4(1)(c). Again, the municipality bears the burden to show its immunity. Breese, 945 N.W.2d at 23. Due care immunity applies to: “Any claim based upon an act or omission of an officer or employee of the municipality, exercising due care, in the execution of a statute, ordinance, or regulation whether the statute, 15 ordinance or regulation is valid . . . .” Iowa Code § 670.4(1)(c). The purpose of due care immunity is to prevent plaintiffs from using tort litigation to test the validity of statutes or ordinances. Goodman v. City of Le Claire, 587 N.W.2d 232, 235 (Iowa 1998); cf. Dalehite v. United States, 346 U.S. 15, 33 (1953) (discussing federal tort claims act). “Simply put, tort plaintiffs may challenge the manner in which government officers implement [applicable] laws; they may not challenge the laws themselves.” See Welch v. United States, 316 F. Supp. 2d 252, 254 (D. Md. 2004). The city asserted it was executing a city ordinance—City Code of West Des Moines title 7, chapter 1, section 7 (2015)—on sidewalk construction and did so with due care.9 That ordinance requires a permit for sidewalk construction and provides: “All sidewalk construction or reconstruction shall conform with standard specifications for such work on file in the office of the city engineer.” Iowa case law provides sparse guidance on due care immunity. Both the city and Bybee cite Baldwin v. Estherville, for the proposition that the due care standard is breached if an official acts negligently. 333 F. Supp. 3d 817, 843 (N.D. Iowa 2018).10 The city goes further and asserts, “[T]he 9 The city didn’t identify the ordinance it alleged it was executing until its reply to the resistance to summary judgment. At oral argument, counsel for the city urged for the first time that the statute at issue was the ADA. We do not address that argument. On the permit requirement, Alvarez testified he didn’t know if any permits were obtained for the ADA improvements. And the city produced no evidence of what constituted “standard specifications” or any filing in the office of the city engineer other than the cover page and “title sheet” for the project plans. 10 We doubt the continuing viability of Baldwin because it was addressing a constitutional tort before the Iowa Supreme Court overruled Godfrey v. State, 898 N.W.2d 844 (Iowa 2017). See Burnett v. Smith, 990 N.W.2d 289, 307 (Iowa 2023) (holding Iowa courts no longer recognize “a standalone cause of action for money damages under the 16 municipality must establish it was ‘taking reasonable action to conform with the requirements of the law’ . . . .” (quoting id.). Federal courts applying the Federal Tort Claims Act (FTCA) provide more guidance in their analyses of the analogous federal provision. Compare 28 U.S.C. § 2680(a), with Iowa Code § 670.4(1)(c). So we may look to federal cases for persuasive authority. See Goodman, 587 N.W.2d at 235–36 (giving “great weight to relevant federal decisions interpreting” the FTCA, recognizing “the legislature intended the Iowa State Tort Claims Act to have the same effect . . . because the Iowa act is modeled after the federal act,” and observing the IMTCA aligns municipal tort liability with state tort liability). “To determine whether the due care exception bars a particular claim, [federal courts] apply a two-part analysis.” Welch v. United States, 409 F.3d 646, 652 (4th Cir. 2005). First, the courts ask whether the statute “specifically prescribes a course of action for [the government official] to follow.” Id. Then, “if a specific action is mandated, [the courts] inquire as to whether the [official] exercised due care” in following that mandate. Id. The “specifically prescribe[d]” conduct distinguishes the due care immunity from the discretionary function immunity, the second part of the statute. See Berkovitz v. United States, 486 U.S. 531, 536 (1988) (“[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.”); see also Iowa Code § 670.4(1)(c) (“Any claim based upon . . . the exercise or performance or the failure to exercise or perform a discretionary function or Iowa Constitution unless authorized by the common law, an Iowa statute, or the express terms of a provision of the Iowa Constitution). 17 duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.”). Thus, the federal cases provide persuasive authority for interpreting Iowa’s due care exception. But we realize that while our supreme court has looked to the federal reasoning in explaining the purpose of the due care exception, see Goodman, 587 N.W.2d at 235–36, it has not yet echoed the federal requirement that the statute being executed must prescribe the official’s conduct. In fact, in what appears to be Iowa’s only case applying due care immunity, the supreme court found that “the officers properly exercised their authority granted to them by Iowa Code section 804.15 when they forcibly entered the residence.” Kelley v. Story Cnty. Sheriff, 611 N.W.2d 475, 484 (Iowa 2000). The language of that statute is discretionary and not mandatory. See Iowa Code § 804.15 (stating officer with reasonable cause “may” demand to be admitted to premises). But in its brief discussion of the immunity, the court in Kelley did not analyze or expressly reject the federal approach. See generally 611 N.W.2d at 483–84. And Kelley, which predates most of the federal cases cited, still reiterates that “a municipality cannot avail itself of the immunity provisions of [now section 670.4(1)(c)] if the government employees do not exercise due care in executing a statute in the first instance.” Id. at 484. The city meets the first hurdle by at least identifying an ordinance it purports to be executing. As for the second hurdle, the city asserts that consulting an engineer and a landscape architect is enough to show it exercised due care. But on this record, we cannot find the exercise of due care. The city provides too little detail about what role the engineering firm or landscape architect played in ensuring the Holiday Park improvements “conform with standard specifications for such work on file in the office of 18 the city engineer,” nor does the record show that they obtained a permit for the improvements. Given the lack of supporting detail, we cannot conclude that the city established its immunity under the due care exemption. IV. Conclusion To sum up, we assume without deciding that the city met its initial burden to establish that it designed and constructed the improvements to the Holiday Park softball complex in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction. But Bybee produced enough rebuttal evidence to generate genuine issues of material fact about the applicable standard and whether the city adhered to it. So the city did not prove its state-of-the-art immunity. And the city didn’t prove its immunity for exercising due care in executing a city ordinance. Because the city failed to prove it is entitled to judgment as a matter of law, we reverse the dismissal of Bybee’s claims and remand for trial. REVERSED AND REMANDED. 19