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ESTATE OF OSWALD v. DUBUQUE COUNTY11/29/1993
In this consolidated appeal seeking damages for personal injury and resulting death, the plaintiff estates of Judith and LeRoy Oswald appeal the district court's judgment granting defendant Dubuque County's motion for summary judgment. The plaintiffs contend the district court erred in: (1) treating the county's motion as a supported motion for summary judgment; (2) finding that the facts were insufficient to support a theory of recovery; and (3) ruling that evidence supplied after the ruling on summary judgment could not be considered.
On September 11, 1991, employees of Dubuque County were repairing a bridge on Massey Marina Drive. Around noon that day, the employees had removed the steel decking and beams which formed the road surface on the bridge. Between noon and one o'clock, the employees were directed to activities away from the bridge site. During this time period Leroy and Judith Oswald were traveling on Massey Marina Drive; they drove up the bridge ramp and fell through the space where the decking had been removed. The Oswalds' vehicle hit the ground beneath the bridge with its front bumper and flipped over on its top, coming to rest in a small stream. Both Leroy and Judith drowned.
According to the sheriff's report, the Oswald vehicle was traveling less than five miles per hour when the car fell through the bridge. The sheriff also determined there was no alcohol in the Oswalds' blood, and that both were wearing seat belts at the time of the accident. The report also noted that at the time of the accident, an orange barrier fence which had been across the approach to the bridge had been moved to one side. A sign which stated "Road Closed" had also been removed to the side of the road.
On January 2, 1992, the estates of Judith and Leroy Oswald filed a petition at law seeking damages from Dubuque County for their injuries and deaths. These cases were consolidated on April 10, 1992. On December 16, 1992, Dubuque County filed a motion for summary judgment based on the premise that it was immune to suit for failure to erect signs pursuant to Iowa Code section 668.10 (1991). On January 21, 1993, the district court granted the motion for summary judgment on all issues. The estate of Judith Oswald thereafter filed a rule 179(b) motion, which the district court subsequently denied. The estates of Leroy and Judith Oswald filed a joint notice of appeal. We reverse and remand.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 237(c); Farm Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988). Summary judgment is appropriate only if there exists no genuine issue of material fact. Id. The moving party has the burden to show the nonexistence of a material fact. Id. The evidence must be viewed in the light most favorable to the nonmoving party. Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). This procedure is functionally akin to a directed verdict, [511 NW2d Page 639]
and every legitimate inference that reasonably can be deduced from the evidence should be afforded the nonmoving party. Id. A fact issue is generated if reasonable minds can differ on how the issue should be resolved. Id. If the conflict in the record consists only of legal consequences flowing from undisputed facts, entry of summary judgment is proper. Milne, 424 N.W.2d at 423.
However, the nonmoving party may not simply rest on its pleadings and allegations once a motion for summary judgment is filed.
Whe
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