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A right of first refusal is triggered upon the happening of certain events.  One of those triggering events could be the owner’s decision to sell the property.  In that event, the right is conditional until the party holding the right is notified of a third party offer to purchase the land. Once this occurs, the right is no longer conditional and becomes an option to purchase the property, which requires strict compliance with the terms of acceptance.

Many states, including Iowa, criminalize the intentional killing, injuring, maiming, torturing or mutilating of dogs (just ask Michael Vick). However, Iowa, along with many other states, provides an exception to that rule, making it lawful for a person to kill a dog caught “worrying, chasing, maiming, or killing any domestic animal or fowl.” The rationale behind the law is to protect domesticated livestock, and it is a complete defense if a person shoots a dog while in the act of harming domesticated livestock.

Federal law prohibits individuals from possessing firearms if a criminal no-contact order is in place against that individual in cases where the protected party fits the description of an “intimate partner.” So, can a person subject to a criminal no-contact order lawfully possess a firearm for the purpose of hunting alone? 

November 26, 2007 | Erin Herbold

Several cases of securities fraud have recently been discovered in Iowa. In this case, the defendant appealed his multiple convictions for ongoing criminal conduct, first-degree theft, securities fraud, transacting business as an unregistered broker/dealer, and sale of unregistered securities. The defendant argued that the trial court judge erred in several ways, namely by failing to instruct the jury on the identity of the victims of some of the theft charges and improperly defining the elements of securities fraud in Iowa.

August 20, 2008 | Roger McEowen

The Iowa Attorney General’s Office has sued a convenience store operator in northeast Iowa, for fraudulently selling E85 fuel as regular unleaded and E10.  The suit has been filed in Blackhawk County District Court and names Jerry Fratzke as the defendant.  Fratzke, of Jesup, Iowa, owns Pronto markets in Sumner, Fairbank and other locations.  The Attorney General sued after an investigation by the state Weights and Measures Bureau of the Iowa Department of Agriculture and Land Stewardship revealed that the Fairbank and Sumner Pronto Market stations were receiving shipments of E85 fuel from

The defendant pled guilty to assault causing bodily injury and was sentenced to 60 days in jail, given probation, fined and ordered to pay $1266 in Medicaid expenditures triggered by the victim’s injuries. The defendant appealed the portion of the sentencing order requiring him to pay for the victim’s Medicaid expenses.  

This case shows, once again, the importance of getting agreements with contractors in writing- especially if there is some question as to their financial well-being or trustworthiness. Here, a financially-stressed contractor failed to pay bills for materials and ended up being charged with theft as a habitual offender. 

January 31, 2011 | Erin Herbold

Iowa Code §481A.125 deals with the intentional interference with lawful hunting activities in Iowa and imposes misdemeanor penalties for violations.  In this case, a landowner who had previously been charged for allegedly shooting a handgun at a group of hunters in 2000, found himself in a similar situation with the same group nearly six years later. In 2006, an eleven-member hunting party had permission to hunt on the land adjacent to the plaintiff. While the landowner was doing morning farm chores, he allegedly saw a hunter (his neighbor) climb the fence and enter onto his land.

February 28, 2011 | Erin Herbold

The Heemstra/Lyon dispute has had many developments.  Here, the Heemstra family appeals a trial court ruling that they transferred substantial real estate holdings to various family trusts and other entities in an effort to hinder and delay creditors.  But, the appellate court affirmed the trial court’s award to the Lyon estate of approximately $200,000 in compensatory damages and punitive damages of nearly $750,000. The Heemstras’ argued, on appeal, that there was no conspiracy to defraud the Lyon Estate.

It is usually a good idea to reduce contractual matters and other arrangements to writing, even if family members are involved. The plaintiffs in this case are a married couple with a five year old child. The defendant is the uncle of the wife of the married couple.  The defendant had a practice of allowing his grandchildren to use his horses as 4-H projects free of charge.  In the summer of 1999, the plaintiffs visited the defendant’s farm and the child rode one of the defendant’s horses. The horse was gentle and had been used in 4-H projects in the past.

One fundamental principle of the law governing surface water is that it is wrongful for a landowner to disturb the existing pattern of drainage and, as a result, obstruct the flow of water from someone else’s property, or cast upon someone else’s property more water than would naturally flow on it, or cause an unusually high concentration of water in the course of drainage. That’s a big issue for rural landowners owning land next to a tract that is being developed or, as in this case, owning land near a highway construction project.

Sometimes landowners, especially in small towns, tend to ignore city ordinances when building and/or placing structures either on their property or adjacent to it. Often, public officials in these small communities either tend to not enforce existing ordinances or enforce them inconsistently. But, if a city chooses to enforce a restriction against obstructing a public right-of-way, must the city show that the obstruction interferes with travel or causes some sort of damage? That was the issue in this case.

This case involves both contract and tort claims resulting from the plaintiff breaking a tooth upon biting into an olive with the pit inside. The plaintiff opened a jar of “minced pimento stuffed” olives and used some of the olives on a salad. Upon eating the salad, the plaintiff bit down onto an olive pit (or fragment) and fractured a tooth. The defendant imported the olives from Spain. They were shipped to the U.S. in 150-kilogram drums to Virginia, where the drums were emptied and the olives washed and put in glass jars for retail sale.

September 4, 2006 | Roger McEowen

Over the years, the Iowa courts have dealt with many nuisance cases both in an agricultural and non-agricultural context. Two points are clear from the rulings – one landowner cannot unreasonably interfere with another landowners use and enjoyment of their property; and negligence is not the same thing as nuisance. On the latter point, it doesn’t matter if a landowner has obtained all of the necessary permits, is conducting their activity in accordance with best management practices and is incompliance with all applicable zoning rules - the activity can still be deemed to be a nuisance.

This case involves a wrongful death action against the Iowa Department of Transportation (DOT). The decedent was killed by a train at a railroad crossing. Prior to the accident, the DOT had removed rumble strips and replaced them with a flashing light placed on top of a stop sign that was at an intersection south of the railroad crossing. However, the light was not working on the night of the accident.

Bailment situations arise frequently in agriculture. A bailment exists when personal property is delivered by one person (the bailor) to another person (the bailee) for a specific purpose that benefits either the bailor, the bailee, or both, with the understanding that the personal property will be returned at the end of the bailment. So, for example, when one farmer borrows another farmer’s tractor, that is a bailment, and a bailment relationship is created between the parties. What happens if the tractor is damaged or destroyed during the bailment?

September 4, 2007 | Erin Herbold

Iowa Courts have recently decided two civil cases filed against Iowa towns involving the issue of the towns’ legal responsibility for injuries to individuals at a public building or at a public event, and a third case involving premises liability on private property.

September 3, 2007 | Roger McEowen

The Iowa Court of Appeals has decided two cases involving employer liability – one case involving the issue of an employer’s liability to an employee for an on-the-job injury, and a second case involving the question of when an employer is liable for injuries to a patron that an employee causes.

September 3, 2007 | Erin Herbold
In Iowa, simply abandoning or leaving an animal in any place without making provisions for its proper care, or having physical custody of an animal and failing to provide food, potable water, protection from the elements, and opportunity for exercise and other care, as is needed for the health or well-being of the animal is a criminal offence.
November 13, 2007 | Erin Herbold

Trampolines can be the cause of serious injury, especially to minor children. This case concerns liability for a trampoline accident involving neighbors. In 2003, the defendants hosted a backyard barbeque and invited friends over for a relaxing afternoon. The defendants owned a trampoline that came complete with set-up instructions and a user’s manual. The plaintiff began jumping on the trampoline with her daughter and her daughter’s boyfriend. But, when she landed from a jump, she severely broke her ankle. 

November 13, 2007 | Erin Herbold

In assessing fault for tort claims, Iowa law exempts municipalities from being assessed a percentage of fault under certain circumstances. One of those situations involves snow and ice removed from “streets.” But does that protection extend to sidewalks?        

December 30, 2007 | Erin Herbold

In Iowa, a landowner has a duty to use reasonable care to maintain reasonably safe conditions for invited guests and persons coming on the premises for business purposes.  But, does the landowner have to keep a look-out for dangerous conditions, or simply have notice of the dangerous condition and an opportunity to make the premises safe before being held liable?  In other words, just exactly what is the extent of the duty?  Does it include snow and ice removal?  That was the precise issue in this case.

The plaintiffs began the construction of their home in 1995.  As part of the building process, they purchased windows at a local business which were installed by a general contractor. Two years later, the plaintiffs noticed water stains and dampness in the walls beneath the windows.  Despite repairs, the problems continued and resulted in significant damage to the walls, carpet, insulation, garage, etc. When the plaintiffs’ daughter suffered an allergic reaction to the moldy, rotten wood and insulation, the plaintiffs filed sued to recover for property damage and personal injury. 

December 30, 2007 | Erin Herbold

Interesting items can turn up in food products, and sometimes they can cause injury.  What does it take to recover for injuries in such a case?  Under the modern approach, the injured party must prove five elements in order to recover on  a product liability claim – (1) that the defendant sold the product and was engaged in the business of selling the product; (2) that the product was in a defective condition; (3) that the defective condition was unreasonably dangerous to an ordinary user during normal use; (4) that the product was expected to reach the user without substantial change in co

The plaintiffs, a decedent’s estate and another individual injured in the same accident that caused the decedent’s death, sued for damages incurred as a result of escaped anhydrous ammonia from a nurse tank that had ruptured along the tank’s longitudinal weld.  The wrongful death suit claimed that the anhydrous manufacturer and other supply chain parties were negligent in their failure to warn the plaintiff and the plaintiff’s employer (a local cooperative in Calamus, Iowa) of the dangers associated with older nurse tanks and their potential for failure without the appropriate internal insp

Livestock agriculture produces odors, and large-scale animal confinement facilities can produce a lot of odors.  That has the tendency to raise concerns by adjacent owners whose use and enjoyment of their property may be impacted by the offensive odors.  As a result, the disaffected neighbors may sue the livestock operation on a nuisance theory.  The claim is that the odors unreasonably interfere with the neighbors use and enjoyment of their property.  Sometimes neighbors sue before the operation is built in an attempt to stave off the construction of the facility.  That’s a request for an

April 20, 2008 | Roger McEowen
Normally a landlord is not liable for injuries that a tenant’s animals cause.  But, a “possessor” of an animal can, in certain circumstances, be held liable for injuries that animals cause.  This case illustrates that latter point.
July 15, 2008 | Roger McEowen

Under the general rule, a landlord is not liable for the acts of a tenant that cause harm to another person or their property. The reason is that the tenant has the possession over the leasehold premises during the tenancy and has control over what occurs on the leased property. But, what if the tenant does something that harms another person (such as an adjacent owner) and the landlord knows about the tenant’s actions and renews the lease without requiring a change in the tenant’s conduct? Is the landlord liable in that situation?

A tort is a civil (as opposed to criminal) wrong or injury, other than breach of contract, for which a court will provide a remedy in the form of an action for damages.  But, in some situations, an individual is privileged to commit what would otherwise be a battery (a physical touching of another person that is neither consented to nor privileged) or an assault, or both.  One of those situations involves athletic events where the tort occurs during the course of play before the whistle has blown.  The conduct may result in a penalty and a suspension, but it is not compensable via the civil

Vicariously liability is a tort law doctrine that holds another party responsible for the acts of another.  It is closely associated with the doctrine of respondeat superior, which is often invoked to hold an employer responsible for the negligent acts of an employee acting within the scope of employment.  In this case, the plaintiff was injured when the automobile he was operating collided with a farm tractor that was pulling a trailer owned by a farm corporation.  The plaintiff tried to hold the farm corporation vicariously liable on the theory that the trailer’s attachment to the tract
June 1, 2009 | Erin Herbold

A tort is a civil wrong to another person or their property.  But, what damages can be recovered?  The answer to that question is almost always tied to the plaintiff’s ability to prove actual damages.  That point was illustrated in this case.  Here, the defendant needed a dredge to assist in pumping out a dairy farm manure lagoon.  The defendant leased a dredge from the plaintiff, an Indiana firm, with the lease agreement providing that the defendant would insure the dredge while it was in his possession and that he would return it in the same condition as when received, normal wear and tea

The liability of landowners or possessors of real property for injuries suffered by third party entrants has traditionally depended upon the benefit that the entrant bestowed upon the owner or possessor. The law in most jurisdictions creates a hierarchy of status approach that bases liability on the status of the entrant. Under this approach, the adult trespasser is given the lowest status, while child trespassers and invitees are given the highest status. Mid-level status is given to social guests.

Is a public school employee liable for negligent acts committed in the scope of their employment, or is worse conduct required before recovery can be obtained?  That was the issue involved in this case.

Nuisances, an invasion of an individual’s use and enjoyment of the land, are typically classified in two ways. A private nuisance is a civil wrong, based on a disturbance of rights in land and a public nuisance is an interference with the rights of the community at large.

November 25, 2009 | Erin Herbold

In this case, a mother and her ex-con son operated a hog farm on 500 acres.  They had an operating loan of $125,000 with a local bank. Because of the availability of lower interest rates, they became interested in refinancing the loan.  But, one of the son’s fellow ex-inmates also had interests in a start-up company that both Mom and son became considered investing in – even though they didn’t have the necessary funds.  That’s when an third party rode to the rescue and helped the son find the funds to invest.

Every negligent tort case contains four elements that a plaintiff must establish in order to prevail – (1) duty (2) breach (3) causation and (4) damages.

Here, co-workers were driving a non-work vehicle to a job-site when the vehicle collided with another vehicle on the interstate. The passenger claimed that the driver was driving his own personal vehicle negligently and was, therefore, liable as the driver of the vehicle for his injuries. The driver responded that since they were co-employees and in the scope of their employment at the time, the passenger’s damages were limited to those allowable under worker’s compensation.

Preserving adequate documentation is critical when a farmer claims crop damage from the application of weed control chemicals.  In this case, a farmer owned farmland and rented additional tracts of land from the Iowa Department of Natural Resources (DNR). The DNR contract specified that the farmer was required to leave ten percent of the crop grown on the rented fields unharvested for use as a nature preserve. The land owned by the DNR and rented to the farmer contained some sandy areas which were adversely affected by extreme heat and lack of moisture.

In Iowa, “if boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established”  (Iowa Code §650.14). 

What is an individual’s duty of care as a “possessor of the land”? In Iowa, if a person that owns or possesses property permits a third person to come onto the premises, he is under a duty of care to reasonably control the conduct of that person.  This means that the owner or possessor must prevent the entrant from intentionally harming others. The Iowa Court of Appeals recently examined this issue, bringing to light a parent’s duty to control the actions of those entering onto their property. 

To be an effective “shield” against liability, a release form must be drafted carefully and must be clear, unambiguous, explicit and not violate public policy. Several courts from around the country have discussed the use of release forms and assumption of risk by individuals engaging in these types of activities. Generally, most civil liability suits will be barred by a valid release form, as long as the release form does not controvert public policy in that jurisdiction.

November 28, 2010 | Erin Herbold

Iowa Code §335.2 exempts agricultural land from county zoning regulations.  But, does that exemption apply to a wastewater storage lagoon?  In this case, the plaintiffs argued for an exemption on the basis that the lagoon had an agricultural purpose. The county board of adjustment disagreed, and the plaintiff’s appealed to the county district court. 

In cases of civil liability, Iowa follows the rule of comparative fault- the fault of the party alleging the wrong may be applied to the measure of damages awarded.  Here, an Iowa dairy farmer sued an electric utility for nuisance arising out of health problems, low milk production and a high death rate in his dairy herd from 1999 to 2003. The farmer alleged that the herd’s health problems and the farm’s eventual bankruptcy were associated with stray voltage from the electric utility’s installations.

December 30, 2010 | Erin Herbold

A private nuisance constitutes an interference with a person’s private use and enjoyment of their property. That principle was at issue in this case involving a dispute between neighbors.  The plaintiffs’ home was located 40-feet east of the defendants’ home. The defendant’s sole heat source was a wood-burning furnace. In 2008, the plaintiffs sued alleging that the use of the wood-burning furnace was a nuisance.

The landlord rented a single-family house to a couple.  Before signing the rental agreement, the parties discussed the tenants’ pit bull “Chopper” and the tenants paid an additional $30 per month to keep their pet on the premises.  A few months later, a neighbor crossed the street to talk to one of the tenants and Chopper bit the neighbor’s hand.  The neighbor sued the tenants and the landlord.  As for the landlord, the neighbor alleged that the landlord failed to take reasonable precautions to protect persons in common areas from a dangerous dog.

Normally, for employment-related injuries, workers’ compensation is the exclusive remedy for a worker in Iowa. But, in this case, a worker in an egg processing plant made a claim for workers’ compensation coverage and also sued her co-workers for injuries sustained while cleaning an egg-breaking machine. In Iowa, to successfully sue a co-worker for injuries sustained on a job covered by workers’ compensation, one must prove “gross negligence” on the part of the co-worker.  Basically, this means that the co-worker must have known that the injury was probable based on their actions.

Here, the plaintiff (dairy farmer) decided to expand his operations and contacted the defendant (contractor) to obtain a bid for the construction of a new milking parlor. The plaintiff accepted the defendant’s bid and the defendant designed a customized system for water storage on the dairy. At trial, the plaintiff testified that he consistently experienced problems with the water storage system. For instance, he had trouble keeping the water clean and he noticed a steady decline in the herd’s health and milk production.

In certain employment situations, an employer may be held liable to third persons for the acts of their employees- this is called vicarious liability. If an employer is held vicariously liable, they may owe a duty of care to third parties that are injured by an employee.

In 2003, a dispute developed between a farmer and a grain cooperative when the cooperative allegedly improperly applied herbicide to the farmer’s land. In 2008, the plaintiff farmer filed suit against the defendant cooperative, asking the trial court to award damages based upon the loss of yields he sustained. During the trial and throughout the suit, the plaintiff, unrepresented by legal counsel, was repeatedly admonished by the court to comply with the court’s rules of procedure. 

May 11, 2011 | Erin Herbold

Occasionally, a trial court judge will have cause to grant a new trial based upon objectionable statements made during the trial by attorneys that may unduly influence a jury. In this case, a trial court judge ordered a new trial when an attorney made objectionable statements during closing arguments. In 2004, a neighbor’s golden retriever bit a young girl in the face, resulting in severe damage and several plastic surgeries.

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