Iowa Personal Injury Litigation

Iowa Personal Injury Litigation is a concise treatise that explains the ins-and- outs of Iowa personal injury law, from both a procedural and substantive law aspect, with helpful practice tips and strategies.
Publisher: Matthew Bender

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ISBN: 9781663337023
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Iowa Personal Injury Litigation integrates case law, practice tips, and references to sources that provide in-depth explanations of subjects to make this complex area understandable to litigators.

This concise treatise explains the ins and outs of Iowa personal injury law from both a procedural and substantive law aspect, with helpful practice tips and strategies.

Iowa Personal Injury Litigation distills the experience of a seasoned tort litigator to demystify the personal injury law litigation process. It offers targeted guidance for the Iowa tort litigator to master the complexities of the Iowa tort system, court rules, and case law that govern this important evolving area.

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Table of contents

Chapter 1 Intentional Torts
§ 1.01 Intent in Torts Cases
[1] Overview
[2] Assault
[3] Battery
[4] False Imprisonment / False Arrest
[5] Intentional Infliction of Emotional Distress
[6] Trespass to Land
[7] Conversion
[8] Trespass to Chattels
§ 1.02 Defenses to Intentional Torts
[1] Generally
[2] Consent
[3] Self-Defense
[4] Defense of Others
[5] Defense of Property
[6] Shopkeeper’s Privilege
[7] Necessity
Chapter 2 General Principles of Negligence
§ 2.01 Standards of Care
[1] Adults
[2] Children
[3] Statutory Standard of Care—Negligence Per Se
§ 2.02 Concepts of Causation and Duty
[1] Generally
[2] Cause in Fact
[3] Iowa Supreme Court Adoption of Restatement (Third)
§ 2.03 Proving Negligence
[1] Generally
[2] Res Ipsa Loquitur
Chapter 3 Negligence Defenses-- Iowa Comparative Fault Act (ICFA)
§ 3.01 Evolution of Iowa Negligence Law
[1] Pre-Comparative Negligence Era and Adoption of Comparative Fault
[2] Enactment of Iowa Comparative Fault Act (ICFA)
§ 3.02 Operation of the IFCA
[1] Section 668.1—What Conduct is Subject to Comparison?
[2] Section 668.2—Who is a Party and Eligible to be Given a Percentage of Fault?
[3] Section 668.3—How Does It Work?
[a] Generally
[b] The Effect of Comparative Fault
[c] Role of the Jury
[d] Role of the Judge
[4] Section 668.4—Joint Liability
[5] Section 668.7—Releases and Partial Settlements
[a] Generally
[b] Releases
[c] Partial Settlements
[6] Sections 668.5, 668.6—Contribution
[7] Section 668.8—Tolling of Statute
Chapter 4 Negligence in Context—Professional Negligence
§ 4.01 Medical Care Provider Negligence
[1] General Considerations
[2] The Standard of Care
[a] Generally
[b] Locality Rule
[3] The Role of Expert Testimony
[a] Generally
[b] Expert Testimony Not Always Needed
[c] Expert Testimony Required
[i] General Rule
[ii] Designation of Experts—Iowa Code
§ 668.11
[iii] Expert Disclosure Requirements-Iowa Rule of Civil Procedure 1.500(2)
[iv] Qualifications of Experts: Iowa Code
§ 147.139
[v] Certificate of Merit: Iowa Code
§ 147.140
[vi] Another Way to Prove Negligence: Res Ipsa Loquitur
[4] Informed Consent
[a] Generally
[b] What is a “Material Risk”?
[c] Informed Consent Statute
[5] Statutes of Limitation and Repose
[a] Generally
[b] Statutes of Limitation
[i] The Discovery Rule—Origins in Iowa
[ii] Statutory Definition of the Discovery Rule
[iii] A Narrow Reading of the Discovery Rule
[iv] The Discovery Rule and Causation
[v] The Discovery Rule in Misdiagnosis Cases
[vi] The Continuous Treatment Doctrine
[vii] Fraudulent Concealment Doctrine
[c] Statutes of Repose
[i] Generally
[ii] Foreign Object Exception
[iii] Fraudulent Concealment Doctrine
[d] Claims by Minors Under Section 614.1.9.b
[6] Lost Chance Doctrine
[7] Collateral Source Rule
[8] COVID-19 Legislation
[9] Noneconomic Damages and Attorneys’ Fees
[a] Cap on Noneconomic Damages
[b] Court Review of Contingent Fee Contracts
§ 4.02 Attorney Negligence
[1] General Standard of Care
[2] Lawyer-Client Relationship
[a] Requirement of Privity
[b] Exception for Estate Beneficiary
[3] Attorney Conduct and Standard of Care
[a] Generally
[b] Expectations of Attorney’s Competence
[4] Proving Breach of the Standard of Care
[5] Statute of Limitations
[6] Causation in Legal Malpractice Cases
[a] Generally
[b] Transactional
[c] Case-Within-a-Case
[7] Damages
§ 4.03 Professional Negligence: Others
[1] Generally
[2] Educational Malpractice
[3] Real Estate Brokers
[4] Accountants
[5] Engineers
Chapter 5 Negligence in Context—Motor Vehicle Liability
§ 5.01 Liability of Operator
[1] Standard of Care Generally
[2] Violation of Statutory “Rules of Road”
[3] Defenses to Violations of Statutes: Emergency and Excuse
§ 5.02 Statutory Liability of Owner
[1] Generally
[2] Consent
[3] Initial Permission Rule
[4] Liability of Lessor
[5] Bona Fide Sale and Transfer of Title
[6] Other Issues
§ 5.03 Defenses
[1] Comparative Negligence
[2] Failure to Wear Seat Belt
Chapter 6 Negligence in Context—Premises Liability
§ 6.01 Traditional Liability Rules
§ 6.02 Abandonment of Traditional Categories
§ 6.03 Application of Koenig Standard of Reasonable Care
[1] Modification of Iowa Civil Jury Instructions
[2] Judicial Rulings after Koenig
§ 6.04 Continuing Storm Rule
§ 6.05 Recreational Use Statute
§ 6.06 Firefighter’s Rule
§ 6.07 Trespassers
§ 6.08 Special Treatment for Child Trespassers
§ 6.09 Nuisance and Tort Law
[1] Generally
[2] Private Nuisance
[3] Remedies for Private Nuisance
Chapter 7 Products Liability
§ 7.01 General Background of Products Liability
[1] Evolution of Products Liability Doctrine
[2] The Development of Products Liability in Iowa
§ 7.02 Manufacturing Defects
[1] Generally
[2] Elements of Manufacturing Defect Case
[a] Generally
[b] Circumstantial Evidence
[c] Causation
[d] Product Defective When Left Defendant’s Control
§ 7.03 Warning Defects
[1] Generally
[2] Point of Sale Warnings
[a] Basic Duty
[i] Need for Warning
[ii] Adequacy of Warning
[b] Specific Limitations on the Duty to Warn
[i] Obvious Dangers
[ii] Sophisticated User Doctrine
[c] Causation in Warning Cases
[i] Generally
[ii] Comment j—the “Heeding Presumption”
[iii] Cause in Fact and Proximate Cause
[iv] The “Heeding Presumption”—Part 2
[d] Warning Intermediary Parties
[e] Learned Intermediary Doctrine
[i] Generally
[ii] Causation in Learned Intermediary Cases
[3] Post-Sale Duty to Warn
§ 7.04 Design Defects
[1] Generally
[2] The Iowa Supreme Court’s Adoption of the Restatement (Third)’s Test for Design Defect
[3] Proof of a Reasonable Alternative Design
[a] Generally
[b] Is Expert Testimony Always Needed to Prove RAD?
[c] Optional Equipment Rule
[d] Conclusion on Expert Testimony
[c] When is Proof of a RAD Not Required?
[4] State of the Art
[a] Generally
[b] Codification of State of the Art
[c] Restatement (Third) and State of the Art
[5] Enhanced Injury
[a] Theory of Enhanced Liability Injury
[b] Burden of Proof
[c] Comparative Fault
§ 7.05 Warranty Liability in Products Liability Cases
[1] Express Warranties
[2] Implied Warranties
§ 7.06 Liability of Non-Manufacturers
[1] Generally
[2] Iowa Code
§ 613.18
[3] Judicial Construction of
§ 613.18: A Tale of Two Cases
[a] Bingham v. Marshall and Huschart Machinery Co., Inc.
[b] A.L. ex rel. Limkemann v. Jake’s Fireworks, Inc.
[c] The Legislative Intent of
§ 613.18
[4] Manufacturer
[5] Designer
[6] Assembler
§ 7.07 Evidence of Subsequent Remedial Measures
§ 7.08 Successor Corporation Liability
§ 7.09 Asbestos Statute
§ 7.10 Statues of Limitations and Repose
[1] Statute of Limitations
[2] Statute of Repose
[a] Generally
[b] Iowa Product Statute of Repose
[i] General Application
[ii] Actions by Minors
[iii] Effect of Misrepresentations
[iv] Statute of Repose and Contribution
[v] “Harmful Material” Exception
[c] Statute of Repose for Improvements to Real Property
§ 7.11 Defenses
[1] Generally
[2] Misuse
[3] Assumption of the Risk
Chapter 8 Dramshop Act and Other Liability for Providing Alcohol
§ 8.01 Dramshop Act and Similar Statutes
[1] Generally
[2] History of Dramshop Act in Iowa
§ 8.02 Parties to Dramshop Actions
[1] Who is Liable under the Dramshop Act?
[2] Who Can Bring a Dramshop Act Suit?
§ 8.03 Elements of a Dramshop Act Claim
[1] Generally
[2] “Sold and Served”
[a] Generally
[b] Meaning of Sold
[c] Meaning of Served
[3] Knowledge of Patron’s Intoxication
[4] Causation as an Element of Recovery
[5] Requirement of Notice of Intention to Bring Claim
[6] Contribution in Dram Shop Cases
§ 8.04 Defenses to Dramshop Act Causes of Action
[1] Generally
[2] Comparative Fault Act Defenses Do Not Apply to Dramshop Act Claims
[3] Assumption of the Risk
[4] Complicity
[5] Proximate Cause as a Defense
[6] Fireman’s Rule
[7] Limitation on Noneconomic Damages
§ 8.05 Other Alcohol Service Causes of Action
[1] Social Host Liability
[2] Serving Alcohol to an Underage Person
Chapter 9 Strict Liability for Animals and Abnormally Dangerous Activities
§ 9.01 Harm Caused by Wild Animals
[1] Historical Treatment of Injuries Caused by Wild Animals
[2] Iowa Courts and Wild Animals
[3] Defenses
[4] What is a Wild Animal?
§ 9.02 Harm Caused by Dogs
[1] Traditional Treatment of Cases Alleging Injuries Inflicted by Dogs
[2] Iowa Code
§ 351.28
[a] Generally
[b] Owner of a Dog
[c] Premises Liability and Landlords
[d] Evidence
[e] Causation
[f] Defenses Under Section 351.28
[i] Conduct of Plaintiff
[ii] Indemnity
[iii] Hydrophobia
[3] Actions Not Under Section 351.28
§ 9.03 Harm by Trespassing Animals
[1] Liability by Statute and Common Law
[2] Defense for Domesticated Animal Professionals
§ 9.04 Abnormally Dangerous Activities
[1] Generally
[2] Blasting
[3] Escaping Water
[4] Underground Tanks and Storage of Fuel
[5] Transporting Gasoline
[6] Defenses under Iowa Comparative Fault Act
Chapter 10 Business Torts
§ 10.01 Interference with Contractual Relations
§ 10.02 Interference with Prospective Business Advantage
§ 10.03 Defamation
Chapter 11 Governmental Liability and Sovereign Immunity
§ 11.01 State Governmental Liability and Sovereign Immunity
[1] Common Law of Sovereign Immunity
[2] Iowa State Torts Claims Act
[a] General Scope of Statute
[b] Procedural Requirements
[c] When Immunity is Retained
[d] Discretionary Function
[e] Damages
§ 11.02 Municipal Tort Claims Act
[a] General Terms and Application
[b] When Immunity is Retained
Chapter 12 Survival, Wrongful Death, and Loss of Consortium
§ 12.01 Survival and Wrongful Death
[1] Common Law of Wrongful Death
[2] Statutory Authorization for Survival of Actions
[3] Damages Recoverable in Survival/Wrongful Death
§ 12.02 Loss of Consortium and Services
[1] Common Law Recovery for Loss of Services and Support
[2] Statutory Bases of Recovery
Chapter 13 Damages
§ 13.01 Compensatory Damages
[1] Pecuniary Damages
[2] Non-Economic Damages
[a] Pain and Suffering
[b] Emotional Distress
[c] Bystander Recovery
§ 13.02 Other Damage Awards
[1] Statutes on Damages
[2] Business Economic Loss
[3] Punitive Damages