Estate of Donald L. Grove, and Karen L. Grove, Individually and as administrator of the Estate of Donald L. Grove v. Clinic Building Company, Inc.

IN THE COURT OF APPEALS OF IOWA

No. 22-0716
Filed February 22, 2023

ESTATE OF DONALD L. GROVE, and KAREN L. GROVE, Individually and as
administrator of the ESTATE OF DONALD L. GROVE,
Plaintiffs-Appellants,

vs.

CLINIC BUILDING COMPANY, INC.,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Story County, John R. Flynn, Judge.

Plaintiffs appeal the district court’s grant of summary judgment against

them. AFFIRMED.

Thomas A. Palmer of Lawyer, Dougherty & Palmer, PLC, West Des Moines,

for appellants.

J. Scott Bardole of Andersen & Associates, West Des Moines, for appellee.

Heard by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
2

GREER, Judge.

Donald and Karen Grove sued Clinic Building Company, Inc. (CBC), the

owner of the parking lot where Donald Grove fell and fractured his right hip in

October 2019. After filing but before trial, Donald passed away and his estate was

substituted in his place. CBC moved for summary judgment, which the district

court granted. The estate and Karen now argue several pieces of evidence were

wrongly deemed inadmissible. Because we agree with the district court that the

admissible evidence did not generate a question of material fact, we affirm.

I. Background Facts and Prior Proceedings.

On March 24, 2021, Donald filed a petition alleging that in October, 2019,

he was on his way to a clinic for cancer treatment. He parked in a handicap-

accessible space in a nearby parking lot owned by CBC. The petition stated that

when exiting the vehicle, “he stepped into an unmarked storm drain, fell over a

curb, and fractured his right hip.” He was taken to the emergency room, where he

received weeks of care. The petition described CBC’s alleged negligence in failing

to design, construct, and maintain the handicap parking area. It also alleged CBC

failed to warn of the area’s “dangerous nature” and breached “its duty to use

reasonable measures to protect the safety of [Donald] and other users of its

handicapped parking area.” The petition also contained Karen’s claims for

deprivation of Donald’s companionship, aid, services, affection, and society. In

June, Donald passed away; Karen was named administrator of his estate. She

modified the petition to substitute Donald’s estate in his place.1

1We refer to these parties collectively as “the estate” throughout the rest of the
opinion.
3

Donald was the only known witness to his fall,2 but the estate offered various

statements it attributed to Donald as evidence. First, there were notes in Donald’s

medical records, which had various comments that Donald fell when he tripped on

a curb. One of those statements, made to Dr. Curtis Waite shortly after the fall,

repeated Donald’s explanation of the fall—“he ‘tripped over his own feet,’ stumbled

over a curb, and landed on his right hip and right wrist. . . . States this was purely

a mechanical fall. States he was just clumsy.”3 CBC considered this statement

an admission against interest. But other statements in the medical records on the

day of the fall were offered by the estate to show CBC’s negligence, including that

“[Donald w]as coming in for radiation, fell stepping up to the curb,” “[Donald] was

on his way today to have radiation his third out of 5 treatments when he tripped on

the curb and fell and fractured his right hip,” and “[Donald] tripped coming to the

hospital today to get radiation treatment.” Then about a week later, a note in the

medical record stated Donald “was on his way to his radiation therapy appointment

when he tripped on a curb, fell, and suffered a right hip fracture.” On top of the

medical records, the estate also offered a recording of a statement Donald made

to an insurance adjuster from CBC’s insurer in March 2021; he told the insurance

adjuster:

I went to get up on the, the sidewalk, and the next thing I know
I’m, I’m on the ground.
....

2 CBC’s safety and environmental coordinator, Seth McCoy, investigated the
incident. The clinic’s video surveillance does not capture the location of Donald’s
fall, and McCoy was unable to find a witness; the estate also did not produce any
eyewitness to the district court.
3 This was the only statement in the records that was placed in quotation marks.
4

. . . I just got out of the car by the round intake and went to
step up. I didn’t realize the sidewalk had a step up on it, and I ended
up on the ground. The other places I had parked were level.
....
I think the sidewalk being too high there [caused me to fall].

The estate also certified an expert—Dr. Arvid Osterberg, a professor of

architecture at Iowa State University—who compiled a report on the incident based

on his observations of the parking lot and the recorded statement from Donald.

Dr. Osterberg provided an affidavit containing two excerpts from his report. The

first excerpt said:

It is evident from Mr. Grove’s recorded statements that he did
not anticipate the high step up that he encountered. He may have
caught the toe of his shoe on the edge of the curb as he stepped up
the unexpectedly high step. He may also have caught the toe of his
shoe in one of the two-inch-wide square holes in the drain cover. It
is also possible that he lost his footing as he stepped up due to the
sloped surface near the drain cover. Regardless of exactly what
happened, the location was unsafe and did not comply with
[Americans with Disabilities Act] Requirements.

The second excerpt provided:

The unsafe conditions caused Mr. Grove to misstep, fall and
suffer serious injuries. Had the parking lot been properly designed,
constructed, and maintained, and/or had proper warning of the
hazardous locations been present, it is more likely than not that
Mr. Grove would have not fallen and suffered serious injuries.

CBC moved for summary judgment, claiming the estate failed to provide

any admissible evidence supporting its claim it was the negligence of CBC that

caused Donald’s fall. It argued that the notes in Donald’s medical records and

statements to the insurance adjuster were inadmissible hearsay;4 and while it

4See Iowa R. Evid. 5.802 (“Hearsay is not admissible unless any of the following
provide otherwise: the Constitution of the State of Iowa; a statute; these rules of
evidence; or an Iowa Supreme Court rule.”).
5

agreed the statement to Dr. Waite was admissible as an admission by a party

opponent,5 the statement supported its assessment that the injury was caused by

Donald’s clumsiness rather than CBC’s negligence. It also argued that

Dr. Osterberg’s opinion about the cause of Donald’s fall was inadmissible because

it was based on inadmissible evidence and the estate did not establish the

recorded statement was the type of evidence typically relied upon by experts in his

field. So, there was no admissible evidence that could establish that CBC’s alleged

negligence was the cause of Donald’s fall. The estate argued the medical record

notes were admissible as statements made for a medical diagnosis or treatment,

or under the residual hearsay exception. Further, it believed the recorded

conversation with the insurance adjuster would also be admissible under the

residual hearsay exception or under Iowa Rule of Evidence 5.7036 because the

recording was used by Dr. Osterberg in forming his expert opinion.

The district court granted CBC’s motion for summary judgment. The estate

appealed.

II. Analysis.

We review the district court’s grant of summary judgment for correction of

errors at law. Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925

N.W.2d 793, 800 (Iowa 2019). “Summary judgment is proper when the movant

5 See Iowa R. Evid. 5.801(d)(2)(A) (excluding from the definition of hearsay
statements made by and offered against an opposing party).
6 Rule 5.703 (2022) states:

An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those kinds of
facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.
6

establishes there is no genuine issue of material fact and it is entitled to judgment

as a matter of law.” Id. (citation omitted). “We view the record in the light most

favorable to the nonmoving party.” Id. (citation omitted). And we “draw all

legitimate inferences the evidence bears that will establish a genuine issue of

material fact.” Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d 540, 545 (Iowa

2018) (“A legitimate inference is ‘rational, reasonable, and otherwise permissible

under the governing substantive law.’” (citation omitted)). Still, “the resisting party

may not rest on mere allegations in its pleadings but rather must set forth specific

material facts showing that a genuine disputed issue exists for resolution at trial.”

Buboltz v. Birusingh, 962 N.W.2d 747, 754 (Iowa 2021).

“Motions for summary judgment must also be decided based on admissible

evidence.” Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 106 (Iowa 2012);

see also Kindig v. Newman, 966 N.W.2d 310, 322 (Iowa Ct. App. 2021) (“While

evidence need not be in an admissible form at the summary judgment stage, its

content must be admissible. Here, [plaintiff] sought to avoid summary judgment

by relying on his own deposition testimony about what other people told him about

[the premises]. These statements were inadmissible hearsay. [Plaintiff] could not

have testified about those statements at trial. So they could not provide a basis to

avoid summary judgment.” (internal citations omitted)). We evaluate the evidence

the estate offers—(1) statements in the medical records, (2) statements made to

Dr. Waite, (3) the recorded statement to the insurance adjuster, and

(4) Dr. Osterberg’s affidavit—to determine what is admissible and if that

admissible evidence establishes a genuine issue of material fact.
7

A. Admissibility.

The district court determined that the statements Donald made to Dr. Waite

that are recorded in his medical records are admissible evidence. A collection of

other statements in Donald’s medical records, the recorded call to the insurance

agent, and the affidavit from Dr. Osterberg, however, were ruled inadmissible. We

consider the admissibility of these three pieces of evidence before determining if

the evidence generated a genuine issue of material fact.

i. Medical Records.

At different times throughout his treatment for the hip fracture, three doctors

and one nurse entered notes into Donald’s medical record stating Donald “fell

stepping up the curb,” “tripped on the curb and fell,” “tripped on the curb, fell,” and

“tripped coming to the hospital today.” CBC challenged these statements as

lacking foundation to establish they were made by Donald and contended that,

even if proper foundation was laid, the statements are inadmissible hearsay. See

Iowa Rule of Evid. 5.801 (defining hearsay as “a statement that . . . [t]he declarant

does not make while testifying at the current trial or hearing,” which “a party offers

into evidence to prove the truth of the matter asserted in the statement”). “[W]e

review rulings on hearsay for the correction of legal error.” State v. Veverka, 938

N.W.2d 197, 202 (Iowa 2020).

And while the medical records themselves might be admissible at trial with

proper foundation, hearsay statements in those records are another matter. This

is because the statements made in the medical records constitute double hearsay.

In re Poulos’ Est., 229 N.W.2d 721, 727 (Iowa 1975) (“The hospital record is

hearsay. . . . [And] it may include recitals of statements of others, including the
8

patient. This included hearsay is the subject of the ‘double hearsay’ rule. Included

hearsay is inadmissible, upon proper objection, unless it independently comes

within a recognized exception to the hearsay rule.” (citation omitted)); Ceaser v.

Marshalltown Med. & Surgical Ctr., No. 18-2101, 2020 WL 1310299, at *3 (Iowa

Ct. App. Mar. 18, 2020) (“Medical records offered to prove the truth of the matters

asserted are hearsay. And when those records include statements allegedly made

by others, the hearsay is subject to the ‘double hearsay’ rule. That hearsay is

inadmissible unless it independently falls under one of the recognized exceptions

to the hearsay rule.” (internal citations omitted)). So, both the medical record and

the statements purportedly made by Donald must fall into a hearsay exception to

be admissible. See Iowa R. Evid. 5.805 (“Hearsay within hearsay is not excluded

by the rule against hearsay if each part of the combined statements conforms with

an exception to the rule.”).

We begin by assuming, for the sake of argument, that these four quotations

in the medical records were based on statements made by Donald, even though

some of the records confirm the presence of family members in the treatment

rooms. And while the dissent is correct that no one else witnessed the fall, we

cannot know, without testimony from the doctors, if those were statements from

Donald since there are no quotes around the words, his family members, or if the

doctors paraphrased that narrative from the actual first statements Donald did

make. Iowa Rule of Evidence 5.803(4) excepts from the hearsay rule any

statement that is both (1) “made for—and is reasonably pertinent to—medical

diagnosis or treatment” and (2) “[d]escribes medical history, past or present

symptoms or sensations, or the inception or general cause of symptoms or
9

sensations.” “The rationale for [this] exception is that statements made by a patient

to a doctor for purposes of medical diagnosis or treatment are ‘likely to be reliable

because the patient has a selfish motive to be truthful.’” State v. Smith, 876

N.W.2d 180, 185 (Iowa 2016) (citation omitted); accord id. (“This motive exists

because the effectiveness of the medical treatment rests on the accuracy of the

information imparted to the doctor.”).

But the estate did not provide any evidence establishing that the cause of

the fall was necessary or pertinent to Donald’s medical treatment or diagnosis—a

doctor would need to know that Donald fell, which caused his fractured hip, but the

reason he fell was not pertinent to his medical care. See Poweshiek Cnty. Nat’l

Bank v. Nationwide Mut. Ins. Co., 156 N.W.2d 671, 675 (1968) (“A doctor might

testify or put in his record that his patient told him that he was hit by a car while

crossing the street but the doctor may not testify as to charges of negligence made

by his patient against the driver of the car.”); cf. Fed. R. Evid. 803(4) advisory

committee’s note (explaining, under the federal counterpart to rule 5.803(4), that

while statements about causation may be pertinent to diagnosis and treatment,

statements of fault ordinarily are not, as seen in the following example: “[A]

patient’s statement that he was struck by an automobile would qualify [under the

exception] but not his statement that the car was driven through a red light”). And,

the variations in the statements over how the fall occurred bolster the conclusion

that the “why” of how it happened was not pertinent to the treatment, because if

so, the medical providers would have been more exacting. In the end, it is not
10

necessary to know what Donald tripped over to treat a fractured hip. These

statements, then, are not admissible under rule 5.803(4).7

ii. Insurance Adjuster.

Next, we look to the recorded phone call between Donald and the insurance

adjuster. The estate argued to the district court that the phone call was admissible

under the residual hearsay exception found in rule 5.807,8 which provides that a

hearsay statement not otherwise excepted under rules 5.803 or 5.804 is “not

excluded by the rule against hearsay” if (1) “[t]he statement has equivalent

circumstantial guarantees of trustworthiness,” (2) “is offered as evidence of a

material fact,” (3) “is more probative on the point for which it is offered than any

other evidence that the proponent can obtain through reasonable efforts,” and

(4) its admission “will best serve the purposes of these rules and the interests of

justice.” The district court concluded the last three factors were satisfied; but it

ultimately ruled the estate had “failed to carry [its] burden” as to the first.

The residual hearsay exception is a narrow one that is “to be applied

sparingly.” State v. Liggins, 978 N.W.2d 406, 432 (Iowa 2022). As required, the

district court considered a number of factors to conclude this statement was not

sufficiently trustworthy to fit within rule 5.807’s narrow bounds including:

(1) the declarant’s propensity to tell the truth; (2) whether the alleged
statements were made under oath; (3) assurance of declarant’s

7 The estate also argues the statements could be admissible as records of regularly
conducted activity under rule 5.803(6). This exception could apply to the records
but not to Donald’s statements.
8 As of January 1, 2023, this rule has been updated; but, because we are reviewing

an action filed and hearing held before that date, we use the previous version.
Iowa Supreme Ct. Supervisory Order, In the Matter of Adopting Amendments to
the Iowa Rules of Evidence in Chapter 5 of the Iowa Court Rules 4 (Sept. 14,
2022).
11

personal knowledge; (4) the time lapse between the alleged event
and the statement concerning the event; (5) the motivations of the
declarant in making the statement; (6) corroboration; (7) reaffirming
or recanting the statement by the declarant; (8) credibility of the
witness reporting the statement; and (9) the availability of the
declarant for cross-examination.

See State v. Weaver, 554 N.W.2d 240, 248 (Iowa 1996) (laying these out as factors

to consider in determining trustworthiness under the residual hearsay exception).

So, unlike the dissent, we cannot find that the requirement CBC had to produce

the recorded statement has anything to do with its trustworthiness. We agree with

the district court that the circumstances surrounding the statement do not provide

supplemental guarantees of trustworthiness. When Donald made the statement,

it was years after the fall. Likewise, the recorded statement testimony is not so

clear cut but reads as if Donald assumes that is how he fell. “A vague statement

that does not establish a clear fact may be less trustworthy.” Liggins, 978 N.W.2d

at 432. And the recorded statement’s discussion of the curb causing his fall is

inconsistent with his more-recent-in-time statement attributed to him by Dr. Waite

shortly after the fall that he was “just clumsy” and “tripped over his own feet.”

Finally, Donald had a monetary interest in telling the insurance adjuster that his fall

was caused by problems with the parking lot. Overall, we do not find any error in

the district court’s determination that the evidence was inadmissible.9

9 The estate argues we should infer that Donald’s statements are trustworthy given
our summary judgment standard. But even though we consider the facts in the
light most favorable to the non-moving party at the summary judgment stage, “the
asserted facts must meet the standards of admissible evidence.” Stueckrath v.
Bankers Tr. Co., No. 06-0803, 2007 WL 258292, at *3 (Iowa Ct. App. Jan. 31,
2007) (citing Willis v. City of Des Moines, 357 N.W.2d 567, 573 (Iowa 1984)
(requiring a showing of “admissible evidence presenting a genuine fact issue” in
the summary judgment context)).
12

iii. Dr. Osterberg.

The final piece of evidence the district court determined was inadmissible

was Dr. Osterberg’s affidavit. “Generally, [Iowa courts] have been committed to a

liberal view on the admissibility of expert testimony.” Ranes v. Adams Lab’ys, Inc.,

778 N.W.2d 677, 685 (Iowa 2010). We review the district court’s “decision to admit

or exclude expert testimony for an abuse of discretion” and “will reverse a decision

by the district court concerning the admissibility of expert opinions only when the

record shows ‘the court exercised [its] discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’” Id. (alteration in original) (citation

omitted). The test for the admissibility of expert testimony begins with determining

“if the testimony ‘will assist the trier of fact’ in understanding ‘the evidence or to

determine a fact in issue;’” then, “the court must determine if the witness is qualified

to testify ‘as an expert by knowledge, skill, experience, training, or education.’” Id.

(citing Iowa R. Evid. 5.702).

We also look at the basis of the expert’s opinion.

An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts
in the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.

Iowa R. Evid. 5.703. In his affidavit, Dr. Osterberg explained he relied on

measurements and photographs he took at the scene of Donald’s fall and Donald’s

recorded statement to the insurance adjuster. We have already determined that

the recorded statement to the insurance adjuster is not admissible. And, as was

conceded by the estate in the oral argument and as the district court noted, there

was no evidence that this recorded statement to an insurance adjuster was the
13

kind of thing experts in Dr. Osterberg’s field would reasonably rely on when

developing their opinion. See Rieder v. Segal, 959 N.W.2d 423, 431 (Iowa 2021)

(“The proponent [of the evidence] must demonstrate that the information is

customarily relied upon by experts in their field and that such information is

sufficiently reliable.”). And even more so, contrary to the position of the dissent, a

general statement about a parking lot and its design means nothing if you cannot

even identify how or where a person fell—such as the case here.

Because Dr. Osterberg’s opinion of the causal relationship between the

noncompliance and Donald’s fall was developed based on inadmissible evidence

not shown to be customarily relied upon by experts in Dr. Osterberg’s field, we do

not find the district court abused its discretion in finding this opinion inadmissible.

B. Question of Material Fact.

Taking just the admissible evidence, we turn to determining if it generates

a genuine question of material fact. The estate’s petition alleged that CBC was

negligent and that negligence led to Donald’s injuries and Karen’s loss of

consortium. “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.’” DeSousa v. Iowa Realty Co., Inc., 975

N.W.2d 416, 420 (Iowa 2022) (citation omitted). Specifically, CBC’s motion for

summary judgment argued the estate failed to provide any admissible evidence

showing that CBC’s negligence was the cause of the fall.

After weeding out the inadmissible evidence on the matter, all that remains

is Donald’s statement to Dr. Waite that he “tripped over his own feet” and was “just

clumsy.” We agree with the district court that this did not generate a material fact
14

question about the cause of Donald’s fall. See Banwart, 910 N.W.2d at 545 (“[T]he

nonmoving party may not rest upon the mere allegations of his [or her] pleading

but must set forth specific facts showing the existence of a genuine issue for trial.”

(second alteration in original)). We affirm the grant of summary judgment.

III. Conclusion.

Based on the admissible evidence, we find there was no genuine question

of material fact as to the cause of Donald’s fall and so find no error in the district

court’s grant of summary judgment for CBC.

AFFIRMED.

Chicchelly, J., concurs; Vaitheswaran, P.J., dissents.
15

VAITHESWARAN, Presiding Judge (dissenting).

I respectfully dissent. I would conclude the evidence offered in resistance

to CBC’s summary judgment motion was admissible and generated genuine

issues of material fact that precluded summary judgment.

First, with respect to the medical records, I believe the statements Donald

Grove made to medical providers were reasonably pertinent to medical diagnosis

and treatment. See Iowa R. Evid. 5.803(4). CBC argues the statements could not

be attributed to Donald but at the same time asserts no one else witnessed the fall.

There can be little doubt then that the statements were made by Donald to medical

providers. CBC also asserts the statements went to the ultimate legal issues in

the case. While I agree a patient’s attributions of fault or negligence are

inadmissible under the medical diagnosis and treatment exception to the hearsay

rule, none of Donald’s statements imputed fault or negligence to CBC. Instead, all

were statements explaining what happened—statements that led medical

providers to diagnose Donald with a broken hip requiring immediate hip-

replacement surgery. I would conclude the statements constituted admissible

evidence in support of the estate’s resistance to the summary judgment motion

and created a genuine issue of material fact precluding summary judgment.

Second, with respect to Donald’s recorded statement to the insurance

adjustor, I would conclude the statement contains the necessary guarantees of

trustworthiness required by the residual exception to the hearsay rule. See Iowa

R. Evid. 5.807(a)(1). The exception is indeed narrow. See State v. Skahill, 966

N.W.2d 1, 10-11 (Iowa 2021). But the statement was taken by an adjuster and,

based on Grove’s answers to interrogatories attached to the defense summary
16

judgment motion, was “produced by defendant.” CBC did not dispute the estate’s

assertion that the adjuster worked for CBC’s property and casualty insurer.

Although the statement was taken seventeen months after the accident, Grove’s

claim that he tripped over the curb was consistent with his statements to medical

personnel at the time of the accident, underscoring its reliability. I would conclude

the recorded statement satisfied the residual exception’s requirement of

trustworthiness. See State v. Veverka, 938 N.W.2d 197, 203 (Iowa 2020) (“With

respect to trustworthiness, the relevant consideration is whether the proffered

evidence has ‘circumstantial guarantees of trustworthiness.” (citation omitted)).

That brings me to the opinion of the estate’s expert. Though he initially

couched his statements in terms of possibilities, the final paragraph of his

attestation was more concrete. He opined, “Had the parking lot been properly

designed, constructed, and maintained, and/or had proper warning of the

hazardous locations been present, it is more likely than not that Mr. Grove would

have not fallen and suffered serious injuries.” I would conclude the expert affidavit

sufficed to create a genuine issue of material fact. See Rieder v. Segal, 959

N.W.2d 423, 431 (Iowa 2021) (concluding an expert opinion, “as expressed in his

affidavit and expert disclosures, created a disputed issue of material fact”).

I would reverse the grant of summary judgment and remand for further

proceedings.