"That Fire Burns Is an Inference Nearly as Old as Human History"

A short excerpt from one part of Pudans v. Frank Rieman Music, Inc., decided Wednesday by the Iowa court of Appeals (in an opinion by Judge Sharon Soorholtz Greer):

Pudans and [Defendants] the Donahues are next-door neighbors…. According to Pudans, on the Fourth of July in 2017, fireworks set off from the Donahues’ property damaged her swimming pool….

[T]he Donahues … argue Pudans’s claim that the Donahues’ fireworks burned a hole in her pool liner could not survive summary judgment without expert testimony on causation. In response, Pudans points to her affidavit that detailed her experience as a swimming-pool owner. There, she testified she observed there were no “black spots” and no damage to the liner on July 4, 2017, before the fireworks; she witnessed fireworks from the Donahues later that day; and the next day, she found “black marks” and damage to the pool liner. Spent fireworks were removed from her pool filter.

The gist of the Donahues’ argument is that swimming pools are full of water, water usually puts out fires, and therefore you need an expert to prove flaming fireworks debris could burn a pool liner that has water above it. And to their point, the Donahues obtained an expert—one that apparently has a colorful personal history with Pudans—who will testify he does not believe fireworks can burn a pool liner through approximately four feet of water.

Under our supreme court case law, “Expert testimony is not necessary to establish causation in all negligence cases.” “On the other hand, when the connection between the defendant’s negligence and the plaintiff ‘s harm is not within the layperson’s common knowledge and experience, the plaintiff needs expert testimony to create a jury question on causation.” As the court said on another occasion: “Causation is a question for the jury, save in very exceptional cases where the facts are so clear and undisputed, and the relation of cause and effect so apparent to every candid mind, that but one conclusion may be fairly drawn therefrom.”

While not all cases requiring an expert must rise to the level of rocket science, we think resolution of this fact question falls into the category of those that are within the general understanding of a layperson and would not require specialized knowledge or training to resolve. That fire burns is an inference nearly as old as human history, and lay jurors are capable of assessing whether fireworks can burn a swimming-pool liner based on Pudans’s expected testimony.

The Donahues are certainly free to put forward an expert disputing her claim based on the water depth. But that makes for a disputed fact—and that is why we have juries….

Madalyn Elizabeth Grask and Angela L. Campbell (Dickey, Campbell, & Sahag Law Firm, PLC) represent Pudans.

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