Belz v. State

IN THE COURT OF APPEALS OF IOWA

No. 23-1611
Filed October 30, 2024

MICHAEL BELZ, individually and as Executor of the Estate of GERALD M.
BELZ, and SHERINE BELZ, individually,
Plaintiffs-Appellants,

vs.

STATE OF IOWA
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Elizabeth Dupuich,

Judge.

Plaintiffs appeal the district court’s order striking a report of their expert,

granting summary judgment, and dismissing their wrongful-death action against

the State. AFFIRMED.

Dominic Pechota of Trial Lawyers for Justice, P.C., Decorah, for appellants.

Brenna Bird, Attorney General, Eric Wessan, Solicitor General, Adam

Kenworthy, Assistant Attorney General, and Alexa S. Den Herder (until

withdrawal), Assistant Solicitor General for appellee State.

Heard by Tabor, C.J., Ahlers, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

AHLERS, Judge.

Gerald Belz, a freshman at the University of Iowa, died from exposure to

severely cold weather after leaving his residence hall late at night without his key

card and adequate clothing. His mother, individually, and his father, individually

and as executor of his estate, brought a wrongful-death and loss-of-consortium

action against the State. They claim the state-owned university was negligent in

unexpectedly locking a door to Gerald’s residence hall without notice and such

negligence caused Gerald’s death. The district court granted summary judgment

to the State based on discretionary-function immunity and struck a report

submitted by the parents’ expert as untimely. The parents appeal.

I. Factual and Procedural Background

In late January 2019, Iowa City experienced a polar vortex, which brought

extremely cold temperatures and strong winds to the area. The University of Iowa

canceled classes from January 29 at 5:00 p.m. through January 31 at 12:00 p.m.,

but the university remained otherwise operational.

To prepare university facilities for the extreme weather, facilities and

maintenance staff monitored the various buildings on campus. Staff discovered

that a sprinkler head in the east/main vestibule of Burge Hall was at risk of freezing

due to the cold temperatures. The vestibule is formed by two sets of doors—an

exterior set and an interior set. Typically, the inner set of doors to the east entrance

locked at 10:00 p.m., requiring residents of Burge Hall to use their campus

identification card to enter the building, while the outer doors remained unlocked

such that people could access the vestibule space. To prevent the sprinkler head

from freezing, which could trigger the fire alarm and result in all residents
3

evacuating the building into the severe weather, staff propped open the inner set

of doors so that heated air from the building would warm the vestibule and prevent

any freezing. Because the inner doors were propped open, staff then locked the

outer set of doors at 10:00 p.m. to secure the residence hall. However, residents

were still able to gain entry to the building through the outer doors by using their

identification cards. Residents could also use their identification cards to access

entrances on the other three sides of the building.

On the night of January 29, Gerald drank alcohol and vaped THC in Burge

Hall, where he and his roommate lived. Gerald became sick. At 1:09 a.m. on

January 30, Gerald, underdressed for the weather, went outside Burge Hall’s west

door.1 He did not have his identification card with him, as he had left it in his wallet

in his room. As shown on security-camera footage, Gerald fell over and was

motionless. Roughly an hour and forty minutes later, university police found him

in an alleyway between the memorial union parking ramp and Halsey Hall. Gerald

was transported to the hospital where he was declared dead from hypothermia.

Gerald’s parents, individually and as executor of his estate, brought this

action against the State and the university claiming wrongful-death and loss of

consortium. They contend that the university was negligent for locking the exterior

doors to the east entrance of Burge Hall on the evening of January 29.

The State moved for summary judgment. It claimed discretionary-function

immunity and contended that the Belzes failed to establish a genuine issue of

material fact as to causation with respect to whether Gerald ever attempted to use

1 This was captured on security-camera footage.
4

the locked exterior doors at the east entrance of Burge Hall. The State also moved

to strike a supplemental report from the Belzes’ expert. The district court granted

the motion to strike the supplemental report, agreed the State was entitled to

discretionary-function immunity, and granted the State’s motion for summary

judgment.2

The Belzes appeal.

II. Scope and Standard of Review

Our review of a grant of summary judgment is for correction of errors at law.

Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). “Summary

judgment is appropriate only when the entire record demonstrates that no genuine

issue of material fact exists and the moving party is entitled to judgment as a matter

of law.” Id.; Iowa R. Civ. P. 1.981(3). Material facts are those that affect the

outcome of the suit, and a fact issue “is genuine if the evidence would allow a

reasonable jury to return a verdict for the nonmoving party.” In re Est. of Franken,

944 N.W.2d 853, 858 (Iowa 2020) (cleaned up). “The record on summary

judgment includes the pleadings, depositions, affidavits, and exhibits presented.”

Stevens, 728 N.W.2d at 827. We review the record in the light most favorable to

the nonmoving party and make on their behalf all “legitimate inference[s] that can

be reasonably deduced from the record.” Homeland Energy Sols., LLC v.

2 The district court noted it was likely it would have found that the Belzes failed to

generate a fact question as to whether Gerald tried to use the east entrance the
night he died. However, the court did not make a definitive ruling on this issue,
finding it unnecessary in light of its ruling dismissing the claims on the
discretionary-function-immunity ground.
5

Retterath, 938 N.W.2d 664, 683 (Iowa 2020) (quoting Phillips v. Covenant Clinic,

625 N.W.2d 714, 717–18 (Iowa 2001)).

III. Discussion

On appeal, the Belzes argue that the district court erred in applying

discretionary-function immunity to this tort action.3 In doing so, the Belzes seek

refinement of the discretionary-function-immunity test. However, we need not

address discretionary-function immunity in this appeal. Instead, finding a

fundamental flaw in the Belzes’ underlying substantive claims, we elect to address

an alternative basis to affirm the district court—lack of causation. See Rivera v.

Clear Channel Outdoor, LLC, 7 N.W.3d 734, 739 (Iowa 2024) (recognizing that an

appellate court “may still affirm if there is an alternative ground, raised in the district

court and urged on appeal, that can support the court’s decision” (citation

omitted)).

Causation has two components: factual cause and scope of liability. State

v. Roache, 920 N.W.2d 93, 101 (Iowa 2018). Factual causation is evaluated using

3 Prior to the passage of the Iowa Tort Claims Act (ITCA), “tort suits could not be

brought against the state because such suits were prohibited by the doctrine of
sovereign immunity.” Wagner v. State, 952 N.W.2d 843, 856 (Iowa 2020) (citation
omitted). Following passage of the ITCA, the State may be liable in tort “only in
the manner and to the extent to which consent has been given by the legislature.”
Id. (citation omitted). “By enacting the ITCA, the State waived this immunity and
opened itself to suit, but it did so strictly on its terms. Simply stated, the ITCA sets
the metes and bounds of the State’s liability in tort.” Id. at 857 (cleaned up).
Discretionary-function immunity is an exception to the state’s waiver of its
sovereign immunity. See Iowa Code § 669.14(1). Under this exception, “[t]he
State does not waive its sovereign immunity for actions ‘based upon the exercise
or performance or the failure to exercise or perform a discretionary function or duty
on the part of a state agency or an employee of the state, whether or not the
discretion be abused.’” Anderson v. State, 692 N.W.2d 360, 364 (Iowa 2005)
(quoting Iowa Code § 669.14(1)).
6

the “but-for” test:

The defendant’s conduct is a cause in fact of the plaintiff’s harm if,
but-for the defendant’s conduct, that harm would not have occurred.
The but-for test also implies a negative. If the plaintiff would have
suffered the same harm had the defendant not acted negligently, the
defendant’s conduct is not a cause in fact of the harm.

Id. (cleaned up).

The Belzes concede that, to generate a jury question with respect to factual

causation that would avoid summary judgment, they must present some evidence

that Gerald attempted to access the east entry vestibule of Burge Hall the night he

died. This is because if Gerald didn’t try to access the east doors, then the locking

of those doors caused no harm to Gerald. The Belzes contend they have

presented sufficient evidence to generate a jury question on Gerald’s attempt to

access the east doors. They contend a jury could infer he would try to access the

east vestibule after he failed to gain entry through the west entrance because doing

so was a reasonable course of action given that the east vestibule had an

emergency access phone that could be used by those who forgot their university

identification cards to call the front desk. They also point to the lack of security

footage showing Gerald not attempting to access the east vestibule.4 They also

reason that, because police found Gerald by another university building, a jury

could conclude he had been walking around campus trying to find an unlocked

door after first trying to access the east vestibule door. While we view the facts in

the light most favorable to the Belzes as the non-moving party, the theories

asserted by the Belzes are no more than speculation unsupported by any record

4 To be clear, there is no security footage showing Gerald at the east vestibule of

Burge Hall the night he died.
7

evidence. See Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005). And

“[s]peculation is not sufficient to generate a genuine issue of fact.” Id. The Belzes

simply presented no evidence that Gerald attempted to gain access to the east

doors of Burge Hall.

Faced with the lack of record evidence supporting their contention that

Gerald tried to gain entry at the east doors, the Belzes ask us to expand the record.

They ask us to consider a report relating to cell phone data produced by their

expert, which they claim shows Gerald’s phone in the vicinity of the east vestibule.

They contend this is evidence Gerald attempted to access the east doors. The

report is not part of the record supporting the Belzes’ contention that they have

generated a fact question on causation because the district court struck that report

as untimely. The Belzes contend that the district court abused its discretion when

it did so. See Hagenow v. Schmidt, 842 N.W.2d 661, 669 (Iowa 2014) (“We review

for abuse of discretion discovery rulings on whether to exclude evidence as a

sanction for untimely disclosure.”), overruled on other grounds by Alcala v. Marriott

Int’l, Inc., 880 N.W.2d 699 (Iowa 2016).

The Belzes were required to certify their expert witnesses and provide

expert reports on or before February 9, 2023, and did so. But they submitted a

second expert report as part of a supplemental discovery response that they

characterized as a “supplemental” expert report dated May 26 and provided by the

Belzes on June 1—well past the February 9 deadline. It was this “supplemental”

report that included the cell phone data the Belzes seek to use in support of their

claim that they have generated a fact question on Gerald’s attempt to access the

east doors. But the State moved to strike the report from the record because the
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Belzes provided the report after the February 9 deadline and it discussed different

topics than the expert’s initial report. We agree with the State that the second

expert report, which discussed geolocation data extracted from Gerald’s cell

phone, is not a supplemental report to the expert’s initial report, which discussed

health data extracted from Gerald’s cell phone. Cf. Iowa R. Civ. P. 1.508(3)

(explaining that supplemental reports should supplement the expert’s report and

characterizing it as “additions or changes” to the original report). As the second

report is not a supplemental report, the Belzes were required to provide the State

with the second report before the February 9 deadline. See Iowa R.s Civ.

P. 1.500(2)(d), (e), .508(3). And the State was justified in moving to strike the

second report as untimely. See Iowa R. Civ. P. 1.517(2)(b)(3).

Still, striking the report “is an extreme sanction” that is justified only when

the report would be prejudicial. Cf. Hagenow, 842 N.W.2d at 672. To evaluate

whether to strike the report, the court considers:

1. the parties’ reasons for not providing the challenged
evidence during discovery;
2. the importance of the evidence;
3. the time needed for the other side to prepare to meet the
evidence; and
4. the propriety of granting a continuance.

Id. (citation omitted). The district court considered these factors and struck the

second report. In doing so, the court concluded that the report provided little insight

because it was not reliable standing alone, noting that the report concedes that the

phone extraction data should be considered with “other corroborating evidence”

and “reliable extrinsic or circumstantial evidence regarding how the phone was

held, by whom, and under what circumstances.” The court also noted that the
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underlying extraction data had been available to the Belzes for more than a year

prior to the expert report deadline, and the Belzes had previously conceded that

they were not going to present evidence regarding geolocation information from

Gerald’s cell phone.5 These were permissible considerations for the court to rely

upon to strike the second report. The Belzes have failed to establish that the

district court abused its discretion when striking the second report. Cf. Garrison v.

New Fashion Pork LLP, No. 18-CV-3073-CJW-MAR, 2020 WL 1318806, at *3–8

(N.D. Iowa Jan. 23, 2020) (applying similar federal rules of civil procedure and

concluding an untimely second expert report is not a supplemental report and must

be stricken).

Because the court did not abuse its discretion when striking the second

report, it is not in our record and the Belzes cannot rely on the report to generate

a fact question with respect to factual causation. As a result, the record contains

no evidence to create a question of material fact regarding whether Gerald

attempted to access the east vestibule entrance of Burge Hall the night he died.

5 Prior to the late disclosure of the expert’s report, the expert was deposed. During
the deposition, when the scope of the expert’s testimony was questioned, the
Belzes’ counsel stated:
Just so you understand. It’s—there was a bunch of
geolocation data too, like when it hits Wi-Fi, kind of like the stuff we
got from you guys, which note it hits.
We asked [the expert], well, from looking at the phone, can
you get us even better locations as to where he was?
And there was stuff showing [Gerald] walking around Burge
Hall, because the problem is it also shows he was at places, like,
across the river that we know is not accurate; and so since he
couldn’t tell us, you know, reliably:
“Yes, absolutely, I know this is where he was.”
We said: “Then don’t contain it in the report because we’re not
going to be asking you any questions about it.”
10

Accordingly, the Belzes cannot establish that had the university not locked the

exterior vestibule door to the east entrance of Burge Hall, Gerald would not have

died. So, they cannot establish the factual-causation component of causation.

See Roache, 920 N.W.2d at 101.

We affirm the district court’s grant of summary judgment on this alternative

ground.

AFFIRMED.