Cyclist Obtains Settlement Despite Tort Immunity

The Cedar Rapids Gazette reported on a legal settlement reached between Bridgid Ruden, the City of Coralville, the State of Iowa, and Horsfield Construciton Company.  Ms. Ruden had been riding her bicycle on a trail and lost control of her bike and crashed after hitting a patch of mud on the trail.  She was in a coma, had multiple surgeries, and is unable to continue her career as a nurse practitioner.  The basis for Ruden's lawsuit was that the Defendants were negligent in the manner in which the trail was designed, constructed and maintained.  Generally, the State of Iowa (Iowa Code 669.14) and Municipalities (Iowa Code 670.4) are immune from tort liability, unless the negligence falls under certain exceptions.  In this case, Ms. Ruden presented enough evidence to argue that the design of the trail was negligent in that it was not sloped enough to allow for proper drainage.   There are very few cases in Iowa where plaintiffs have successfully argued the design exception. 

No Eminent Domain for Bike Trails

Most people are generally familiar with the legal concept of eminent domain, whereby the government can take private property for public use, upon the payment of just compensation to the property owner.  It is found in the Fifth Amendment to the U.S. Constitution, and similarly found in the Iowa Constitution at Article 1, Section 18.  The Iowa Legislature has provided that the power of eminent domain to be enjoyed by state agencies and local governing bodies shall be as delegated by legislative act.  In the Iowa Supreme Court case of East Oaks Development, Inc. v. Iowa Department of Transportation ("DOT"), 603 N.W.2d 566, (Iowa 1999), the Court determined that the Legislature has not extended this power of eminent domain for development of recreational trials, stating: "...the DOT has no general eminent domain authority for establishing recreational trails or bikeways."  Ultimately, the Court determined that the DOT could exercise eminent domain to re-develop a road by placing a bike trail next to it, since such placement of the trail helped improve traffic on the road.  The takeaway from the East Oaks case, however, is that the State does not have eminent domain power for the creation of recreational trails.

They Can't Make You Clean Up Your Mess

You often hear about environmental sites that are required to be cleaned up.  However, an Iowa Supreme Court case specifically addresses the Iowa Department of Natural Resources' ("DNR") ability to force cleanup of sites that do not pose a hazardous condition.  In First Iowa State Bank v. Iowa Dept. of Natural Resources, 502 N.W.2d 164, 168 (1993), the Court noted that "specific statutory authority for adopting administrative rules relating to solid waste is provided in Iowa Code Sexton 455B.304...[h]owever, no reference is made to adoption of rules relating to cleanup of open dumps.  Even the rules adopted by the DNR relating to solid waste do not provide for cleanup."  Thus, the DNR has the authority to tell you stop making a mess, but in many cases, it cannot make you clean it up. 

Iowa Supreme Court on Defamation

In a lengthy opinion released today, the Iowa Supreme Court tackled the intricate legal issue of defamation in Iowa.  In Gail Bierman and Beth Weier vs. Scott Weier and Author Solutions, Inc., the Court analyzed the history of Iowa and Federal defamation law.  Generally, the tort of defamation requires publication (spoken is slander, printed is libel) of a defamatory statement which was false and malicious, made of and concerning the plaintiff, which causes injury.  The Weier opinion analyzes the level of proof required in certain scenarios, including who made the statement and the content of the statement.  The Court also reiterated that plaintiffs must show more evidence to prove defamation if the actor is determined to be a "media defendant," rather than a private person, although Justices Hecht and Appel disagreed with this distinction.

So, if you have a free hour and a strong desire to understand Iowa defamation law (particularly libel), click on the link above and enjoy 68 pages of fun.  

 

Where Your Yard Ends & Your Neighbor's Begins

When neighbors have disputes about property lines, it is often unclear where one property ends and the other begins, especially when property owners have held the property for a long period of time.  In the event of a dispute, Iowa Code section 650 provides a procedure for resolution.  Under section 650, an interested party files a special action with the district court seeking determination of the disputed boundaries.  The Court appoints a commission composed of licensed land surveyors who make findings of fact.  The parties then have an opportunity to challenge the commission's findings before the district court, and the ruling of the district court can be appealed.  Of course, the parties can always agree to the boundaries without the Court's intervention.

Can they do that? An Intro to Inverse Condemnation

As property owners, sometimes we are faced with situations where the government (state, county, municipal, etc.) does something that permanently affects the way we enjoy our property. If the property owner is not compensated for this, the legal method through which the property owner can receive compensation is called "inverse condemnation." See Kingsway Cathedral v. Iowa Department of Transportation, 711 N.W.2d 6 (Iowa 2006). Iowa courts have reviewed a wide array of inverse condemnation situations, including: property that consistently floods following road construction projects, ordinances that prohibit nuisance lawsuits for odors emanating from confined animal feeding operations (CAFOs), and zoning actions affecting the use of a property. If successful, the property owner is entitled to the difference in market value of the property before and after the government's action. 

Iowa Fence Law Legislative Update

As an update to previous entries regarding Iowa's fence law, the 2011 proposed legislative changes (Senate File 2102) failed to make it out of subcommittee.  We will have to wait another year to see whether the legislature decides to modify the century-old statute, in particular limiting its application to agricultural uses.  Until then, the statute will continue to operate in a gray area.

Iowa Fence Law Before Legislature

I'll admit that the Iowa Fence Law (359A) has become a side project of mine.  I have blogged about it on two separate occasions in the past, first noting that as written and determined by the Iowa Supreme Court, the law applied to both urban and rural property.  The update noted that the mechanisms in the law to handle disputes are outdated.

The Iowa Senate is reviewing a bill to address the first issue.  Senate File 2102 seeks to modify the fence law to only require an adjoining landowner with livestock (or who has owned livestock in the last five years) to help pay for the neighbors' fence. 

However, the problematic dispute resolution mechanism still exists.  Power to resolve problems under this code section are still within the purview of a group called "fence viewers," who are essentially township trustees.  In areas where township trustees no longer exist, it is unclear how disputes are resolved.

The Legislature should completely abandon 359A as currently written and start from scratch.  The piecemeal amendments to the fence law that have occurred over the last century make it completely impractical. 

Good Fences Make Good Lawsuits

During Jan Mickelson's (@amtalker) radio show this morning on 1040 WHO, I heard part of a story about two neighbors who had a dispute about a fence.  The discussion involved Iowa Code Section 359A, which is a very old statute.  Essentially, the statute sets forth the procedure under which a person can force his adjoining land neighbor to help pay for the costs of a fence between the two properties.

There are several policies furthered by this statute.  The centuries-old proverb that "good fences make good neighbors" is an obvious reason, but for agricultural states it also helps clarify farmland boundaries and contain livestock. 

This is where clarification is important:  although the radio guest noted that this statute is intended for agricultural purposes, the statute technically does not have that limitation.  The Iowa Supreme Court has held that:

"Chapter 359A applies equally to all adjoining landowners without regard to the use of the land. Our decision rested on the fundamental belief that, in the long run, shared responsibility for partition fences minimizes conflict among neighbors. The fencing statute does not merely benefit livestock owners.  It serves the broader public good by mediating boundary, fence and trespass disputes."  Gravert v. Nebergall, 539 N.W.2d 184, 188 (Iowa 1995).
 

So for the city-folk reading this note, you have the access to this statute as well.

Proposed Amendments to Iowa Wage Payment Collection Act

On March 8, 2011 the Iowa Senate passed S.F. 311, which amends Iowa Code Chapter 91A, Iowa Wage Payment Collection Act. Below is a list of important changes:

·         Employers will be required to do the following

o   Notify employees in writing at the time of hiring wages and regular paydays

o   Notify employees in writing whose wages are determined based on a task, piece, mile or load basis about the method used to calculate wages and the wages are earned

o   Notify at least one pay period prior to the initiation of any changes regarding calculation of pay, wages, regular paydays. The notice must be in writing.

o   Upon written request provide a written statement enumerating employment agreements and policies with regard to vacation pay, sick leave, reimbursement for expenses, retirement benefits, severance pay or other matters.

o   Failure to maintain payroll records showing hours worked, wages earned, and deductions made for each employee raises a rebuttable presumption that the employer did not pay the required minimum wage.

 

While many of these things were included in the statute previously, the amendment eliminates the requirement that the request come from the commissioner. Now, all employers will be required to comply with this section.

 

·         Liquidated damages are available whenever an employer fails to pay wages or reimburse expenses. The amendment removes the "intentional" requirement.

 

·         The amendment explicitly prohibits retaliation against anyone for exercising their rights or assisting one in exercising their rights under this chapter.

 

The bill now will move to the House. 

Slow Pitch Softball at the Iowa Supreme Court

The Iowa Supreme Court released an opinion today in Feld v. Borkowski.  The case centers around a slow-pitch softball practice, where the players were taking batting practice.  The batter, Borkowski, was a right handed hitter.  On this particular pitch, Borkowski swung too early, fouling the ball high and foul over the left field line.  However, during some part of his swing, Borkowski released the bat, sending it flying....down the right field line, where it struck the first baseman, Feld, in the forehead causing serious damage.  This is not a normal flight pattern for a released bat.

The issue for the Court was to first determine whether softball is a contact sport.  If it is a contact sport, the batter is liable if his conduct was reckless or intentional.  If softball is not a contact sport, the batter is liable if his conduct was simply negligent.  The Court determined that softball was a contact sport, so that its players should be on notice that such type of danger is inherent, unless the danger was created by reckless conduct, which would place liability on the acting party. 

The Court then considered an affidavit from Ed Servais, the Creighton University head baseball coach.  Mr. Servais noted that a right handed hitter who fouls a ball down the left field line should not, under normal circumstances, ever release his bat down the right field line.  The Court found this to raise an issue of recklessness that was appropriate to take the case to a jury.

Another interesting story at the intersection of sports and the law.  Stay tuned to see how this case turns out when it goes to trial. 

The Politics of Law School

Today the Des Moines Register reported on a lawsuit filed against the Univeristy of Iowa College of Law.  The Plaintiff is Teresa Wagner, who applied for a writing instructor position with the law school, but was not hired for the job.  Wagner claims that she was not hired due to her conservative political affiliation, since a majority of the faculty at the law school are registered Democrats. 
 
To make out a prima facie case of First Amendment retaliation, Wagner must present evidence that:
  1. Her political affiliation was constitutionally protected;
  2. She suffered a deprivation likely to deter free speech or her freedom of association; and
  3. Her political affiliation was at least a motivating factor in the College's decision.  A motivating factor does not amount to the only factor, but is rather a factor that motivated the University's actions.

George v. Walker, 535 F.3d 535, 538 (7th Cir. (Ill.) 2008). 

If Wagner can prove that an improper purpose was a motivating factor in the decision, the University will have to show that the same decision would have been made in the absence of the protected speech. 

If the University carries that burden, the Wagner must then demonstrate that the College's proffered reasons for the decision were pretextual and that political affiliation was the real reason for the decision.

Freedom of Religion in Prison

Yesterday on IowaIndependant.com, Lynda Waddington reported on an 8th Circuit Court of Appeals decision on three prisoners' rights to observe their religious holiday at the Iowa State Penitentiary in Fort Madison.  The three plaintiffs are Wiccan, and sought 8 full hours to observe Samhain, their most important day of religious observance, which takes place at the end of October.  The inmates brought their suit under the Free Exercise Clause under the First Amendment of the U.S. Constitution.  The Appellate Court ruled that 3 hours was a sufficient amount of time to observe the holiday, especially given the timing and safety constraints within which the prison officials must operate.  The Iowa Department of Corrections officially recognizes approximately 12 other religions.

Polk City Sign Language: Freedom of Speech or Defamation?

In the Des Moines Register today, Jeff Eckhoff wrote a story today about businessman Anthony Herman in Polk City, Iowa.  Apparently, Mr. Herman is involved in several legal battles with the City of Polk City, and began using a sign on his property to display his distaste for the City using choice statements about the Mayor and members of the City Council.  The Polk City city council "has no plans to try to interfere with his right to free speech." 
 

Pursuant to a 1971 U.S. Supreme Court case (an oldie but a goodie), Polk City might face a tough challenge regulating Herman.  In Cohen v. California, the Supreme Court ruled that "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of [an] expletive a criminal offense."  Justice Harlan famously wrote that "one man's vulgarity is another's lyric."

As individuals, the Polk City Mayor and City Council could try to sue Herman on defamation grounds.  However, the City officials would probably be considered "public officials."  To prove libel (written defamation), the Polk City officials need to prove that 1) the statements were defamatory; 2) of and concerning the city officials; 3) the statements were published; 4) the statements damaged the reputation of the officials; 5) that Herman knew the statements were false; and 6) that his statements were made with reckless disregard of the truth.

 

Iowa Law: Walking in a Winter Wonderland of Shoveled Sidewalks

Looking out my window at today's snow accumulation, I am unfortunately reminded of my legal duty to shovel my sidewalk when I get home.  According to Iowa Code Section 364.12(2)(b):

The abutting property owner is responsible for the removal of the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice.

 

A "reasonable amount of time" means:

  • Des Moines:  within 48 hours following the end of the snowfall. Property owners who do not comply are subject to a civil citation.
  • West Des Moines:  after the 24 Hr period after the storm ends, complaint calls will be routed to the Police Department for complaint follow-up and code enforcement.
  • Urbandale: after twenty-four (24) hours or more, 12 hours to shovel following complaint, then subject to criminal prosecution.
  • Clive: twenty-four (24) hours after a snowfall or the deposit or formation of ice.

If your City is not included in my list above, suffice it to say, you should still shovel your walk tonight.

Photo on Flickr by Marko K

Iowa's Brain Drain

A December 2008 report by the Generation Iowa Commission finds:

  • Iowa had a “brain drain” of 19,500 college-educated people for 1995-2000.
  • 12 percent of currently available jobs in Iowa are for college graduates.
  • Iowa’s brain drain is 4th worst in the nation since 2000.
  • Iowa is one of only six states facing a declining rate of the percent of our population with at least a bachelor’s degree.
  • Iowa has the 9th lowest average wage out of 10 regional states.
  • Iowa’s wages are 20 percent lower than the national average.
  • Cost of living adjustments do not make up the wage gap.
  • Iowa college students rank 17th nationally at a volunteer rate of 32 percent.

The Commission offers several recommendations to attempt to reverse these alarming trends, including:

  1. Allowing Next Generation more participation and input on state economic commissions and boards,
  2. Advancing a more ambitious and expansive job-creation program throughout the state,
  3. Expanding internship availabilities to Iowa college students in higher-educated growth industries, and
  4. Providing increased incentives for participation in Americorps and other volunteer organizations within the state.

Iowa is a national leader in alternative fuel and energy production.  It would be interesting to see if the state can create a new model for economic success by powering the country through the utilization of young talent and ideas, before these college graduates leave our state in search of greener pastures.

Election Day in Iowa: Know Your Rights

On this much anticipated first Tuesday after the first Monday in November, millions of people are flocking to the polls to cast their ballots.  For Iowa voters, there are some nuances to election law that are important to keep in mind:

  • Unregistered voters can register and vote on election day.  You must be at the precinct where you live, complete a voter registration application, sign a written oath, and present appropriate identification.  Iowa Code § 48A (2008).
  • A student who attends an Iowa college or university may vote in their hometown or at their college residence.  Obviously, you have to choose one or the other.  Iowa Code § 48A (2008). 
  • People convicted of felonies who have completed their sentence (including probation, parole, & supervised release) before July 4, 2005 are eligible to vote.  On that date, Governor Vilsack signed Executive Order No. 42, which granted a blanket restoration of the right to vote and hold public office to persons who were disqualified from registering to vote because of conviction for a felony or aggravated misdemeanor.

If you have any questions, contact your county auditor.  Remember, the polls in Iowa close at 9 p.m., so make sure to cast your ballot before then! 

Retaliation

I recently attended an employment law seminar in St. Paul, Minnesota. One key topic that kept resurfacing in the sessions I attended was RETALIATION. Title VII retaliation claims have increased 19% from 2006

An employer retaliates when it makes an adverse employment decision which tends to discourage an employee from engaging in protected conduct. What is an adverse employment decision? Although not clearly defined, the Supreme Court has made it clear that it is not necessarily have to be a tangible employment decision, such as termination. What is protected conduct? Whistleblowing, filing a complaint, taking FMLA leave or making a worker’s compensation claim are all examples of protected conduct.

What should employers do to minimize retaliation claims?

  • Have a clear policy prohibiting retaliation;
  • Educate managers and supervisors about retaliation;
  • Enforce policies consistently for all;
  • Refrain from making hasty decisions when employees have engaged in protected activity in the recent past even if you believe the decision is warranted;
  • Investigate all retaliation claims and discipline those who have engaged in retaliation. Inform the employee alleging retaliation of your findings and whether any disciplinary action will take place;

Landlords: Beware of Dog

The Iowa Court of Appeals recently had before it a sad (sad for the child that was injured and sad for the dog) and somewhat surprising dog-bite case in which they decided that a fact question was created, necessitating further review, when a landlord had knowledge that a dog had a propensity towards violence and yet that landlord allowed the dog to remain on the property.

The abbreviated facts are as follows:  Landlord's son, who was also a tenant, had a German Shepard as a pet.  German Shepard was kept outside, possible neglect occurring (Disclosure Alert: dog owner writing this blog post). German Shepard attacks neighbor.  Landlord/father is aware that tenant/son's dog attacked neighbor.  Steps are taken to insure that dog does not get loose again.  Tenant/Son sent jail for unrelated matter.  Dog left in fenced in yard (testimony showed neglect).  Landlord/father insists that dog be removed.  Son/ex-tenant threatens suicide, father/ex-landlord relents.  Dog eventually escapes and severely injures neighbor boy.  Court of Appeals finds, among other things, that a fact issue requiring further review had been created as to whether the landlord was negligent in allowing a dangerous dog to remain in his property.

The lesson:  If you are going to allow your tenants to have pets you should have your tenants provide you with information regarding the animals demeanor and any past displays of abnormal aggression.  Also, you should put a provision in your leases that would allow you to terminate the lease should you become aware of an animals aggression and after such aggression the tenant refuses to find alternate accommodations for pet. 

Photo by flickr

Maintaining a Temporary Worker's Status as Temporary

The Question of the Week posted this week got me thinking about the classification of temporary employees. Temporary workers are workers that are employed by a staffing agency which supplies workers to the client company. Temporary workers report to the client, but receive pay and benefits from the staffing agency. Temporary workers, therefore, are considered to be the employee of the staffing agency rather than the client company.

The risk of having a temp become an employee of the client company arises when the client company retains a certain amount of control over the temp. If that happens, the client company may face liability for a wide variety of employment related issues including discrimination and wage and hour violations.

How can the client company reduce the risk of having a temp become classified as an employee? The suggestions listed below are taken from “Get Smart When Using Temporary Employees” and a 2004 Iowa case, Willms v. Associated Materials Inc.

  • Allow the staffing agency to communicate the rate of pay and hours to the temp;
  • Require the staffing agency to perform drug testing or background checks;
  • Request the staffing agency perform periodic visits to the job site;
  • Differentiate the temp uniforms, badges, parking spaces, break rooms, etc. from the permanent employees’;
  • Allow the staffing agency to make hiring and firing decisions as well as take disciplinary action;
  • Limit the time period a temp works at the site;
  • Refer to the temp as a worker who is assigned rather than an employee who is hired;
  • Always have your attorney review your agreement with the agency.

In short, treat temporary employees different than your permanent employees. A client company may not be able to completely eliminate the risks of having temporary workers classified as employees, but by using some of the suggestions above the risk will be reduced.

Photo on flickr by DCvision2006

If You are Going to Acquire a Rental Unit, Don't Forget the Rental Certificate

Given the current real estate market with its increasing foreclosure rate and ensuing credit crunch, individuals and families are choosing to rent rather than buy.  If you have the financial ability and the interest in owning rental property then this could be an intriguing possibility.  However, there is more to owning rental property than simply finding a property and suitable tenants.  If you own a rental unit in central Iowa, before you can move any tenants into your property you must first obtain a rental certificate, according to the Iowa Uniform Residential Landlord and Tenant Act and the City of Des Moines Municipal Code. 

 

If in your haste you neglect to obtain a rental certificate it could come back to haunt you should you find yourself in the unenviable position of having a tenant whom neither pays nor exits the premises on their own volition.  Under Iowa Law, without a valid rental certificate the tenant is considered a tenant at will and the landlord must give thirty days notice prior to eviction, on top of that the past due rent will not be recoverable either.  Bottom line, if you are a current landlord or a prospective landlord, be sure that you have a  rental certificate for each unit before renting.

Photo on Flickr by The Rocketeer