IN THE COURT OF APPEALS OF IOWA
No. 23-1953 Filed December 4, 2024
CLAY BLANCHARD, Plaintiff-Appellant,
vs.
CITY OF DES MOINES, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.
The plaintiff appeals from the district court’s order dismissing his negligence
petition against the defendant for failure to allege that the law on which the lawsuit
is based is “clearly established.” REVERSED AND REMANDED.
Kenneth R. Munro, Des Moines, for appellant.
Luke DeSmet, Assistant City Attorney for Des Moines, for appellee.
Heard by Tabor, C.J., and Ahlers and Sandy, JJ. 2
SANDY, Judge.
Clay Blanchard appeals from the district court’s order dismissing his
negligence lawsuit against the City of Des Moines (City) for failure to allege in his
petition that the law on which the lawsuit is based is “clearly established,” as
required by Iowa Code section 670.4A(3) (2023). Blanchard argues the district
court erred in dismissing the lawsuit because Iowa Code section 670.4A does not
apply in this case and, even if it does, his petition specifically pleaded and set forth
claims that were clearly established at the time of the incident. We hold that
Blanchard’s petition specifically pleaded and set forth clearly established claims,
and reverse and remand for further proceedings consistent with this opinion.
I. Background Facts and Proceedings
In his petition, Blanchard alleged that the City negligently “created a hazard
at the intersection of Fleur Drive (Fleur) and Southlawn Drive (Southlawn) by
planting or allowing to grow, oversize vegetation in boxes and in the median
between the lanes.” He alleged the City then “erect[ed] a warning sign in the street”
which, combined with the oversize vegetation boxes, prevented drivers from
seeing oncoming traffic.
On September 9, 2021, Blanchard was driving his motorcycle northbound
on Fleur near the Fleur and Southlawn intersection. Kevin Olson was
simultaneously driving his vehicle southbound on Fleur near the same intersection.
Because of the condition of the median, Olson began to turn left onto Southlawn
without seeing Blanchard in the northbound lane of Fleur. Blanchard then laid
down his motorcycle to avoid a collision with Olson’s vehicle. Blanchard was
injured from the fall from his motorcycle. 3
On August 22, 2023, Blanchard filed a petition in the Iowa District Court for
Polk County alleging negligence against the City. There were no other defendants.
The City then moved to dismiss, and Blanchard entered a resistance to that
motion. The City replied to Blanchard’s resistance, and on November 21, the
district court dismissed Blanchard’s petition. Blanchard now appeals.
II. Standard of Review
“We review a district court’s ruling on a motion to dismiss for the correction
of errors at law.” Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533, 538
(Iowa 2022) (citation omitted).
III. Discussion
First passed in 2021, Iowa Code section 670.4A(3) sets forth certain
heightened pleading requirements for tort claims against government defendants
under Iowa Code chapter 670. See 2021 Iowa Acts ch. 183, § 14.
Section 670.4A(3) states that a plaintiff must (1) “state with particularity the
circumstances constituting the violation,” (2) “plead a plausible violation of the law,”
and (3) plead “that the law was clearly established at the time of the alleged
violation.” Accord Victoriano v. City of Waterloo, 984 N.W.2d 178, 181 (Iowa
2023). “Failure to plead a plausible violation or failure to plead that the law was
clearly established at the time of the alleged violation shall result in dismissal with
prejudice.” Iowa Code § 670.4A(3).
Blanchard argues that the pleading requirements of section 670.4A do not
apply to his petition because he is not “claiming vicarious liability of a municipality,
and since there is no allegation of any violation of law by a state or local official,
there is no defense of qualified immunity available to the [City].” Blanchard did not 4
bring this argument before the district court so we cannot address it here. Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”). To be clear, Blanchard’s
failure to preserve error on this issue means we take no position on whether
section 670.4A applies to his petition, and we save that fight for another day.
Our supreme court has held that the plausibility aspect of section 670.4A(3)
“require[s] the same pleading as the Federal Rules of Civil Procedure.” Nahas v.
Polk Cnty., 991 N.W.2d 770, 781 (Iowa 2023). “‘Particularity’ and ‘plausible’ are
established terms of art in federal civil procedure.” Id. (citing Ashcroft v. Iqbal, 556
U.S. 662, 677–79 (2009)). “[I]f a word is obviously transplanted from another legal
source, whether the common law or other legislation, it brings the old soil with it.”
Id. (alteration in original) (citation omitted).
To plead a plausible claim, the petition’s specific factual allegations must
“allow[] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft, 556 U.S. at 678. Because plausibility is a
“context-specific” inquiry, the reviewing court must “draw on its judicial experience
and common sense.” Nahas, 991 N.W.2d at 782 (citation omitted). A plaintiff need
not prove probability to survive an initial plausibility review, but the petition must
raise “more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft, 556 U.S. at 678. Because probability is not required, “a well-pleaded
[petition] may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable, and ‘that a recovery is very remote and unlikely.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). 5
The plaintiff must also plead that the law was clearly established at the time
of the violation. Iowa Code § 670.4A(3). Government defendants are often subject
to civil immunities, and immunity questions are best resolved during the pleadings
stage. See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e repeatedly
have stressed the importance of resolving immunity questions at the earliest
possible stage in litigation.”). Those questions are to be resolved early because
qualified immunity not only serves as protection from liability—it protects
government defendants from the risks and distractions of trial as well. See Harlow
v. Fitzgerald, 457 U.S. 800, 816 (1985).
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IN THE COURT OF APPEALS OF IOWA
No. 23-1953 Filed December 4, 2024
CLAY BLANCHARD, Plaintiff-Appellant,
vs.
CITY OF DES MOINES, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.
The plaintiff appeals from the district court’s order dismissing his negligence
petition against the defendant for failure to allege that the law on which the lawsuit
is based is “clearly established.” REVERSED AND REMANDED.
Kenneth R. Munro, Des Moines, for appellant.
Luke DeSmet, Assistant City Attorney for Des Moines, for appellee.
Heard by Tabor, C.J., and Ahlers and Sandy, JJ. 2
SANDY, Judge.
Clay Blanchard appeals from the district court’s order dismissing his
negligence lawsuit against the City of Des Moines (City) for failure to allege in his
petition that the law on which the lawsuit is based is “clearly established,” as
required by Iowa Code section 670.4A(3) (2023). Blanchard argues the district
court erred in dismissing the lawsuit because Iowa Code section 670.4A does not
apply in this case and, even if it does, his petition specifically pleaded and set forth
claims that were clearly established at the time of the incident. We hold that
Blanchard’s petition specifically pleaded and set forth clearly established claims,
and reverse and remand for further proceedings consistent with this opinion.
I. Background Facts and Proceedings
In his petition, Blanchard alleged that the City negligently “created a hazard
at the intersection of Fleur Drive (Fleur) and Southlawn Drive (Southlawn) by
planting or allowing to grow, oversize vegetation in boxes and in the median
between the lanes.” He alleged the City then “erect[ed] a warning sign in the street”
which, combined with the oversize vegetation boxes, prevented drivers from
seeing oncoming traffic.
On September 9, 2021, Blanchard was driving his motorcycle northbound
on Fleur near the Fleur and Southlawn intersection. Kevin Olson was
simultaneously driving his vehicle southbound on Fleur near the same intersection.
Because of the condition of the median, Olson began to turn left onto Southlawn
without seeing Blanchard in the northbound lane of Fleur. Blanchard then laid
down his motorcycle to avoid a collision with Olson’s vehicle. Blanchard was
injured from the fall from his motorcycle. 3
On August 22, 2023, Blanchard filed a petition in the Iowa District Court for
Polk County alleging negligence against the City. There were no other defendants.
The City then moved to dismiss, and Blanchard entered a resistance to that
motion. The City replied to Blanchard’s resistance, and on November 21, the
district court dismissed Blanchard’s petition. Blanchard now appeals.
II. Standard of Review
“We review a district court’s ruling on a motion to dismiss for the correction
of errors at law.” Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533, 538
(Iowa 2022) (citation omitted).
III. Discussion
First passed in 2021, Iowa Code section 670.4A(3) sets forth certain
heightened pleading requirements for tort claims against government defendants
under Iowa Code chapter 670. See 2021 Iowa Acts ch. 183, § 14.
Section 670.4A(3) states that a plaintiff must (1) “state with particularity the
circumstances constituting the violation,” (2) “plead a plausible violation of the law,”
and (3) plead “that the law was clearly established at the time of the alleged
violation.” Accord Victoriano v. City of Waterloo, 984 N.W.2d 178, 181 (Iowa
2023). “Failure to plead a plausible violation or failure to plead that the law was
clearly established at the time of the alleged violation shall result in dismissal with
prejudice.” Iowa Code § 670.4A(3).
Blanchard argues that the pleading requirements of section 670.4A do not
apply to his petition because he is not “claiming vicarious liability of a municipality,
and since there is no allegation of any violation of law by a state or local official,
there is no defense of qualified immunity available to the [City].” Blanchard did not 4
bring this argument before the district court so we cannot address it here. Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”). To be clear, Blanchard’s
failure to preserve error on this issue means we take no position on whether
section 670.4A applies to his petition, and we save that fight for another day.
Our supreme court has held that the plausibility aspect of section 670.4A(3)
“require[s] the same pleading as the Federal Rules of Civil Procedure.” Nahas v.
Polk Cnty., 991 N.W.2d 770, 781 (Iowa 2023). “‘Particularity’ and ‘plausible’ are
established terms of art in federal civil procedure.” Id. (citing Ashcroft v. Iqbal, 556
U.S. 662, 677–79 (2009)). “[I]f a word is obviously transplanted from another legal
source, whether the common law or other legislation, it brings the old soil with it.”
Id. (alteration in original) (citation omitted).
To plead a plausible claim, the petition’s specific factual allegations must
“allow[] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft, 556 U.S. at 678. Because plausibility is a
“context-specific” inquiry, the reviewing court must “draw on its judicial experience
and common sense.” Nahas, 991 N.W.2d at 782 (citation omitted). A plaintiff need
not prove probability to survive an initial plausibility review, but the petition must
raise “more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft, 556 U.S. at 678. Because probability is not required, “a well-pleaded
[petition] may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable, and ‘that a recovery is very remote and unlikely.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). 5
The plaintiff must also plead that the law was clearly established at the time
of the violation. Iowa Code § 670.4A(3). Government defendants are often subject
to civil immunities, and immunity questions are best resolved during the pleadings
stage. See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e repeatedly
have stressed the importance of resolving immunity questions at the earliest
possible stage in litigation.”). Those questions are to be resolved early because
qualified immunity not only serves as protection from liability—it protects
government defendants from the risks and distractions of trial as well. See Harlow
v. Fitzgerald, 457 U.S. 800, 816 (1985).
But alleging that the law was clearly established is not the legislature’s
imposition of a magic-words requirement. Rather, it requires the district court to
review the petition and pleadings and decide at the motion-to-dismiss stage
whether this substantive requirement has been met. Payne v. Britten, 749
F.3d 697, 702 (8th Cir. 2014) (“Courts may ask only whether the facts as alleged
plausibly state a claim and whether that claim asserts a violation of a clearly
established right.”). Section 670.4A only bars a claim when the plaintiff has failed
to clear that threshold. Traditionally understood, common law relating to torts
establishes a claim when a duty is established. Duty simply answers the question,
“is this the type of thing that happens to this type of person when this type of thing
is done?” If sufficient facts are provided in the pleading to enable the judge to
answer yes to that question, the claim is a recognized cause of action rendering it
clearly established law. 6
The City does not argue that Blanchard failed to state with particularity the
circumstances constituting the violation. But it does argue that he failed to plead
a plausible violation and allege a clearly established law. We disagree.
First, the district court did not rule that Blanchard failed to plead a plausible
violation. It only dismissed his petition on the basis “that the [p]etition does not
comply with Iowa Code section 670.4A(3) in that it does not allege that the law on
which the lawsuit is based is ‘clearly established.’” Thus, we only consider whether
Blanchard properly alleged that the city violated a “clearly established” law.
Second, as Blanchard points out, much of the City’s argument revolves
around (1) Blanchard’s failure to recite these magic-words—“duty to prevent a
dangerous condition1 was clearly established law”—as well as (2) its
characterization of his claims as conclusory. The City argues, without citation to
authority, that the plaintiff must plead “reference to authority.” The problem with
the city’s argument is that it overlooks the substantive purpose of the clearly-
established-law pleading requirement—allowing the district court to evaluate
whether a clearly established right has been violated. See Payne, 749 F.3d at
702.
The City seemingly concedes that Blanchard has clearly identified a cause
of action. In its brief, it contends that “the clearly established requirement must
require more than identifying the cause of action being pursued.” But the City does
1 Restatement (Third) of Torts: Phys. & Emot. Harm § 51 cmt. e (Am. L. Inst. 2012);
see also Est. of Farrell by Farrell v. State, 974 N.W.2d 132, 134 (Iowa 2022) (“[W]e hold the pleadings state actionable tort claims alleging governmental misfeasance that created a dangerous condition on the government owned highway interchange . . . .”). 7
not specify what further pleading was required here. And it can’t. That is because
Blanchard specifically outlined each element of his dangerous condition claim.
In his petition, Blanchard directly alleged negligence. Negligence is a
familiar claim to all Iowa courts. It is well-rooted in common law and has been a
claim raised in our courts since Iowa was first admitted as a state. See Nathan
Honson, Iowa Tort History, 1839-1869: Subsidization of Enterprise or Equitable
Allocation of Liability?, 81 Iowa L. Rev. 811, 815–16 (1996) (stating our supreme
court first applied the negligence standard in 1848); cf. Harding v. Fahey, 1 Greene
377, 378 (Iowa 1848). It is hard to conceive of a more clearly established law than
that of a common law negligence claim.
And Blanchard’s allegation that the City caused him injury based on its
alleged negligence was not merely conclusory as the City suggests. Worth
repeating, he specifically stated each element of an Iowa common law negligence
claim. See DeSousa v. Iowa Realty Co., 975 N.W.2d 416, 420 (Iowa 2022) (“An
actionable negligence claim requires ‘the existence of a duty to conform to a
standard of conduct to protect others, a failure to conform to that standard,
proximate cause, and damages.’” (citation omitted)). Blanchard described the
city’s duty to conform to a “standard of conduct to protect others.” Id. He provided
specific facts illustrating its failure to conform to that standard and specifically
described his injury and its specific proximate cause. Id.
He alleged, “The City had a duty to maintain its property in such a way as
to permit the safe travel of vehicles.” He also stated that the city maintained
planters in the median of Fleur and that the “vegetation grown by the City in these
planters blocked north and southbound vehicles from seeing each other; the City 8
also put a large traffic sign in the travelled portion of the roadway that compounded
this problem.” Blanchard then stated that “because of the City’s negligence”—the
aforementioned vegetation growth and sign placement—an oncoming vehicle
could not see him and turned into his path. And Blanchard argued that these
negligent acts proximately caused his injury—the oncoming driver did not see him,
he laid down his bike to avoid a collision, and he injured himself.
The City wants it both ways. It criticizes Blanchard for not expressly citing
authority but dismisses Blanchard’s reference to the City’s negligence as
“conclusory allegations” despite the surrounding alleged facts. Blanchard set out
each element of a claim for negligence and applied those facts to the elements.
Whether the district court was looking for magic words or a case citation in
Blanchard’s petition (both of which are unnecessary), Blanchard’s petition and
subsequent filings allowed the district court to evaluate whether a clearly
established right had been violated contrary to its ruling otherwise. Accordingly,
we reverse the district court’s order granting the City’s motion to dismiss and
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.