Brenda J. Alcala v. Marriott International, Inc. and Courtyard Management Corporation D/B/A Quad Cities Courtyard by Marriott

                IN THE SUPREME COURT OF IOWA
                              No. 14–1058

                           Filed June 10, 2016


BRENDA J. ALCALA,

      Appellee,

vs.

MARRIOTT INTERNATIONAL, INC. and COURTYARD MANAGEMENT
CORPORATION d/b/a QUAD CITIES COURTYARD BY MARRIOTT,

      Appellants.


      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Scott County, Mark J.

Smith, Judge.


      A personal injury plaintiff seeks further review of court of appeals

decision ordering a new trial on her premises liability claims. DECISION

OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED FOR NEW TRIAL.


      Mark McCormick of Belin McCormick, P.C., Des Moines, for

appellants.



      Michael K. Bush of Bush, Motto, Creen, Koury & Halligan, P.L.C.,

Davenport, for appellee.
                                       2

WATERMAN, Justice.

      We must decide whether a new trial is required in this premises

liability action.   Brenda Alcala, a business guest at the Courtyard by

Marriott1 in Bettendorf, slipped and fell on its icy sidewalk, breaking her
ankle. The jury found Marriott ninety-eight percent at fault and Alcala

two percent at fault and awarded her damages of $1.2 million. The court

of appeals concluded the district court’s jury instructions were erroneous

and ordered a new trial.      The court of appeals held the district court

abused its discretion by denying Marriott’s requested jury instruction on

the continuing-storm doctrine, erred by submitting a negligent-training

theory without substantial evidence, and erroneously instructed the jury

on private industry safety codes.           One judge dissented in part,

concluding the district court correctly declined to instruct on the

continuing-storm doctrine based on the lack of evidence of the requisite

storm. The dissent invited our court to clarify whether our standard of

review for rulings declining requested instructions is for abuse of

discretion or correction of errors at law. We granted Alcala’s application

for further review.

      For the reasons explained below, we conclude a new trial is

required.   We hold that our standard of review for rulings denying a

requested jury instruction is for correction of errors at law. We conclude

the district court erred by submitting a negligent-training theory without

evidence of the standard of care for training employees on deicing or

breach of that standard. Because the jury returned a general verdict, a

new trial is required. A new trial is also required because the district

      1Appellants     are Marriott International, Inc. and Courtyard Management
Corporation, doing business as Quad Cities Courtyard by Marriott. We refer to the
appellants collectively as Marriott.
                                     3

court, over conflicting expert testimony, erroneously instructed the jury

that an icy walkway violated a private safety code governing slip-resistant

construction materials.   We decline to decide the applicability of the

continuing-storm doctrine.    On remand, the parties and district court

may address whether the doctrine should be abandoned in light of our

adoption of section 7 of the Restatement (Third) of Torts, Liability for

Emotional and Physical Harm.      We vacate the opinion of the court of

appeals, reverse the district court judgment, and remand the case for a

new trial consistent with this opinion.

      I. Background Facts and Proceedings.

      Alcala, a software consultant, often traveled away from her Texas

office and visited clients that were implementing new software. Alcala

made these in-person visits so that she could assist clients with final

tests and troubleshooting.     On January 18, 2010, Alcala arrived in

Bettendorf on one such business trip, intending to spend an entire

workweek with the client before returning to Texas. She checked into the

Courtyard by Marriott in Bettendorf, a few blocks from the office where

Alcala would be working.     Just before 8 a.m. on January 21, Alcala

slipped and fell while exiting the hotel en route to her client’s office,

breaking her ankle.

      In January 2012, Alcala filed suit against the defendants, alleging

Marriott negligently caused her injuries because it allowed ice to

accumulate on its outdoor walkways, failed to maintain safe premises,

failed to properly train their employees responsible for addressing icy

sidewalks, and failed to warn guests of the dangerous condition.       The

case proceeded to trial in February 2014.

      A. The Weather. An official weather recap encompassing a broad

thirteen-county portion of eastern and southeastern Iowa described “an
                                      4

ice storm over much of eastern Iowa . . . with widespread ice

accumulations of ¼ to ½ inch” that occurred on January 20. The recap

did not mention anything about conditions in that thirteen-county area

on January 21, the day Alcala fell.

      Witnesses at trial testified about the weather on the morning of

January 21. The Marriott restaurant employee who attended to Alcala

immediately after her fall testified “it was bad that morning” but stated

she had no difficulty entering the building when she arrived for her shift

at 5:15 a.m. and it was not raining or misting at the time Alcala fell

nearly three hours later. The employee staffing the front desk recalled no

mist at the time Alcala fell.   The hotel manager on duty at the time

stated, “It was very gray, and I know there was a lot of moisture.” One of

the paramedics who responded to the 911 call acknowledged “it was

rough conditions out.” The other paramedic confirmed “there was some

bad weather,” “it was quite icy,” and “[t]here had been an ice storm” but

could not remember precise details. The on-call physician who treated

Alcala at the hospital after her fall explained that on his morning

commute, sidewalks and roads were slick and icy and “there were

accidents all over town.”    Alcala’s contact with her Bettendorf client

testified “the weather conditions were not good” and affirmed “everyone

in the Quad Cities was dealing with the effects of th[e] storm that

morning.”

      When asked if she recalled the weather on January 21, Alcala’s

client contact testified, “We had some freezing rain” without quantifying

the precipitation or specifying when it occurred in relation to Alcala’s

injury.   A paramedic testified generally that “[t]here was a storm that

morning.” A restaurant employee testified, “[W]e had just had, like, one

of those freak ice storm things.”         However, she further testified she
                                           5

“believe[d]” the freak ice storm went “into the morning hours as well.”

She acknowledged that “the weather may have been kind of waxing and

waning that morning, as it often does during storms.” Marriott witness

Margaret DePaepe, the maintenance employee responsible for exterior

walkways during the overnight shift, testified that whatever precipitation

occurred “was slowing down” when her shift ended around 6 a.m. on

January 21 and that any precipitation “had pretty much stopped” by

5:40 a.m.

        Certified weather records from the National Climatic Data Center

show mist and freezing rain at the Quad City International Airport in

nearby Moline, Illinois—about eight miles south of the Marriott—

beginning on the morning of January 20. The records show freezing rain

last fell at the airport around 6 p.m. that day, while mist was virtually

continuous throughout the day and into the night. About half an inch of

precipitation accumulated that day, with only trace amounts accruing

after 3 p.m. and the last trace accumulating no later than 7 p.m. Mist

continued overnight and into the morning of January 21, ending around

noon.     However, there were no new accumulations, even in trace

amounts. Ambient temperatures fluctuated slightly, reaching thirty-four

degrees Fahrenheit by 2:15 a.m. on January 21 but decreasing to thirty-

two degrees by 7:52 a.m. Overall data shows 0.53 inches of precipitation

accumulating on January 20, with no accumulation after 7 p.m. on that

day or at any point on January 21.2

        Data from the Davenport Municipal Airport, about eight miles

northwest of the Marriott, provides less detail. Unlike the Moline data,

        2The records list total precipitation as “0.00” for January 21. In context, this
does not include even trace amounts because other dates in January show total
precipitation as “T,” standing for “trace.”
                                    6

the Davenport data does not display a log of observations by hour.

Rather, it is a daily summary.     On January 20, the Davenport data

reflects 0.32 inches of precipitation with “fog or mist” and “freezing rain

or drizzle.” On January 21, it reflects trace amounts of precipitation, the

same two conditions and an additional condition of “smoke or haze”—but

because the data is a twenty-four-hour summary, it contains no specific

timeline for these observations.

      B. Training of Marriott Employees.        No witness testified as to

the standard of practice for training employees on deicing walkways or

what employees should be taught on that subject.         DePaepe testified

about her protocol for clearing ice and snow during a shift:

            Q. Why don’t you tell the jury what your procedures
      are for shoveling and salting throughout your shift. A. We
      just go outside and take a bucket of salt, and then we—take,
      at the time, a water thing.
            Q. Like a pitcher, a scooper? A. It was a water
      pitcher. And we just sprinkled it everywhere that we could
      possibly find the ice.
             Q. Okay. Now, if there’s snow or if there’s ice, as it’s
      falling, do you just do the sprinkling, or do you shovel as
      well? A. We shovel as best we could.
            Q. And when you do shovel, do you do that before or
      after the saltings? A. Before, and then we put the salt
      down.
            Q. So you try to get as much stuff out of the way and
      then you sprinkle salt on it? A. Yes.
            ....
            Q. When you’re out there salting throughout the
      night, are you checking your own work? Are you walking
      over the areas that you’re salting? A. We check our own
      work.
           Q. Okay. So you’re sprinkling and you’re walking
      behind it; is that right? A. Yes.
            Q. Now, what if you’re walking, walking as you’re
      sprinkling, walking back to put your salt and materials back
      in the shed, what if you notice a slick spot? A. Then we put
      more . . . salt and we take care of that spot as soon as
      possible.
                                    7
            ....
            Q. So you have a standard operating procedure of
      going out at least three times in your shift and walking the
      premises and inspecting and shoveling and salting if
      necessary. A. Yes.

DePaepe added that no supervisor ever told her to limit the quantities of

deicer used on exterior walkways.

      On cross-examination, DePaepe elaborated on the extent of her

training on snow and ice removal techniques:

            Q. When you were trained by Marriott, did you have
      an understanding that if people did not properly attend to
      the outside sidewalk, if there was, say, an ice storm and the
      sidewalk became slippery, that it could become dangerous
      for people to walk on it? A. Yes.
            Q. You were trained about that? A. Yes.
            Q. That was important to you? A. Yes.
            ....
            Q. How long were you taught that either salt or de-
      icing compound could be on that sidewalk before it would
      become inert and not effective? Were you ever taught that?
      A. Hum-um.
            Q. Is that a no? A. No.
            Q. All right. Were you ever taught that you have to be
      concerned that simply spreading salt would simply melt the
      ice and it might refreeze? A. Yes.
            Q. And if it refroze, you would have to actually use a
      shovel, true? A. Yes.

Alcala’s counsel asked DePaepe to comment on a copy of Marriott’s

training materials:

            Q. Do you recognize this [document entitled] outdoor
      safety measures? A. No.
            Q. This was produced by a Marriott lawyer, saying
      that these are the type of training that you received. You
      don’t remember seeing this? A. It’s been a while. I haven’t
      seen these for a while . . . .
            Q. Fair enough. It may not be fair. But would you
      agree that snow and ice on an exterior sidewalk can be a
      hazard? A. Yes.
                                     8
           Q. And would you agree that when ice forms, it would
      be important for a Marriott employee to remove it at once?
      A. Yes.
           Q. And if a Marriott employee didn’t do that, that
      would be a problem for the customers. A. Yes.
            Q. And my understanding is that when I asked you in
      your deposition if you had received any specific training
      whatsoever from Marriott as to the proper way to remove ice,
      you just said they told us to go out there and shovel and
      salt. A. Yes.

      On redirect examination, DePaepe clarified the types and frequency

of training she received from Marriott:

             Q. What kinds of training did you guys receive at the
      Marriott? A. What we did was go through videos, and when
      it gets close to the winter season, we have a meeting with all
      of the house people, all of our maintenance people, I should
      say, and they go through the procedures of what should . . .
      be done and how it should be done.

Marriott’s counsel offered, and the court received as an exhibit, the

packaging from the deicer DePaepe testified she used:

             Q. Now, you can see from this bag—it says that it
      works—it has melting power down to negative 15 degrees; is
      that fair? A. Yes.
            Q. Okay. Now, on the back it has different things
      about how to use, and the storage, it cautions you not to use
      too much, tells you only to apply about a quarter cup per
      square yard. Does it say anything on here about needing to
      reapply every 15 minutes, every half-hour? A. No.
            Q. Does it say anywhere here that this won’t work
      longer than an hour and a half or two hours? A. No.
           Q. Did you have any reason to believe that it
      wouldn’t? A. No.
            Q. Had it been working appropriately when you’d been
      taking two-and-a-half to three-hour breaks in between
      throughout the night? A. Yes.

      DePaepe testified she observed no ice problem on the sidewalk at

those intervals.    However, other witnesses contradicted her.         One

paramedic who responded to the 911 call estimated the sidewalk in the

location where Alcala fell was “eight or higher” on a ten-point scale of
                                    9

slipperiness—where ten denotes “as slippery as it possibly could be”—

even though DePaepe testified she had applied deicer at approximately

5:30 a.m. that day. The paramedic further testified the fire department’s

personnel spread their own deicer on the sidewalk to allow the

paramedics sufficient traction to reach and rescue Alcala safely.

      Other evidence relevant to the training of Marriott’s employees

came from the company’s operations manager for the Bettendorf

location. The manager explained each maintenance person completes a

checklist of tasks during each shift, and she affirmed DePaepe’s

statement that “standard operating procedure” under the checklist

required at least three inspections of walkways and floors during each

eight-hour shift.   The operations manager further stated, “[I]t was

understood with . . . anyone working those shifts, that if it needed to be

done more often, to absolutely do it more often.” No witness testified as

to any deficiency in Marriott’s training procedures or documents.

      C. Private Safety Standards. Alcala and Marriott each presented

an expert addressing industry standards for slip resistance and snow

and ice removal.    Russell Kendzior testified on Alcala’s behalf about

standards promulgated or approved by the American Society for Testing

and Materials (ASTM) and the American National Standards Institute

(ANSI).    He   opined   the   standards   were   applicable   under   the

circumstances of this case even though they are voluntary, not

mandatory.   Section 5.13 of ASTM Standard F1637 requires walkway

surfaces to be slip resistant under expected environmental conditions

and use, especially when conditions may be reasonably foreseeable.

Kendzior opined that the phrase “expected environmental conditions”

accommodates the notion that during some weather events it may be

impossible to provide a perfectly slip-resistant surface.   Kendzior also
                                    10

discussed sections 5.7.1.1 and 5.7.1.2 of the standard, which state

exterior walkways “shall be slip resistant” and consider a slippery surface

substandard. Kendzior testified, “[B]room-finished sidewalks are the

industry standard. That’s what’s required by code. . . . [T]hey provide a

very ample degree of slip resistance when dry.” In Kendzior’s opinion,

however, an icy surface is by definition slippery and therefore

substandard under that code.

      ANSI standard A1264.2, to which Kendzior also referred, provides

suggested protocols for clearing snow and ice from walkways and parking

lots. Specifically, section 10.3.1 of the standard instructs land occupiers

to use deicing compounds according to manufacturer instructions that

may include reapplication after a length of time. Kendzior read from the

ASTM and ANSI standards during his testimony while the jury viewed

them via a projector, but neither party introduced a copy of them into

evidence.

      In contrast, Marriott’s expert, architect Alan Bowman, testified the

slip resistant ASTM standard applied to the finish applied to the concrete

surface, not slipperiness from snow or ice.        He noted ASTM once

considered promulgating a standard for snow and ice removal but

scrapped the proposal because the organization’s members could not

agree on an appropriate global standard. Bowman testified the Marriott’s

sidewalk was constructed with broom-finished concrete that met the

ASTM standard:

             Q. Now, let’s look at the cement itself. What kind of a
      finish is on this concrete? A. Well, the metric that you use
      in terms of sidewalk performance is its slip resistance, and
      the most cost effective way to achieve slip resistance with
      concrete is to broom finish it. You take a stiff bristle broom
      while the concrete is, what we call, thumbprint hard, and
      you drag the broom across the concrete and then let it finish
      curing, and that creates a fine corduroy effect. It’s about
                                    11
      l6th-of-an-inch-high grooves in the concrete. All of the
      measures that I’m familiar with, ASTM standards, for
      example, and the ANSI standards, consider broom-finished
      concrete to be slip resistant, and that’s on the scale of,
      basically, from zero, which would be just slick as glass, to
      one. And broom-finished concrete, wet or dry, always ranks
      between 0.5 and 0.8, so it’s considered, under wet or dry
      conditions, to be a slip-resistant surface.
             Q. And      this     was     broom-finished     concrete.
      A. Everything, according to the Donahue site plan
      documents and everything that I witnessed in a walk-around
      of the Marriott facility, everything is broom-finished concrete.
             Q. And that, I think, even Mr. Kendzior mentioned, is
      really the standard in the industry. A. Pardon me?
            Q. Mr. Kendzior mentioned that’s the standard in the
      industry, broom-finished concrete. A. Yes.
            Q. Now, just to make it clear, though, that means that
      this surface is slip resistant wet or dry? A. Wet or dry, yes.

      D. The Jury Instructions.       Before submitting the case to the

jury, the parties made a record on jury instructions. Marriott sought a

jury instruction detailing the continuing-storm doctrine. This doctrine

provides that, absent unusual circumstances, a premises occupier may

“await the end of the storm and a reasonable time thereafter to remove

ice and snow from an outdoor entrance walk, platform, or steps.” Reuter

v. Iowa Tr. & Sav. Bank, 

244 Iowa 939, 943

, 

57 N.W.2d 225, 227

 (1953)

(quoting Walker v. Mem’l Hosp., 

45 S.E.2d 898, 902

 (Va. 1948)). Marriott
contended it was entitled to this instruction because several witnesses

testified generally that the weather was bad on the morning of January

21 and because the certified weather records from nearby locations

reflected mist that day. See Rochford v. G.K. Dev., Inc., 

845 N.W.2d 715, 718

 (Iowa Ct. App. 2014) (concluding the doctrine includes freezing rain,

not just blizzards).   Thus, Marriott asserted the jury should decide

whether the storm was continuing when Alcala fell or, if it had ended,

whether Marriott waited a reasonable time after the storm passed to

remove the ice from the sidewalk where Alcala fell.
                                      12

        The district court refused to give the instruction because it

concluded there was insufficient evidence supporting it.         The district

court concluded trace precipitation and mist do not constitute a “storm”

within the plain meaning of the word or under our caselaw applying the

continuing-storm doctrine. Indeed, the district court noted the weather

records considered mist to be an obscuration like fog, not a type of

precipitation.    Furthermore, the district court concluded witnesses’

general testimony that roads and sidewalks were slick and icy on the

morning of January 21, that “it was rough conditions out,” or that “the

weather conditions were not good” spoke only to the persisting effects of

the storm, not whether it was actively continuing at times relevant to this

case.

        The court also overruled Marriott’s objections to two additional

instructions. First, Marriott contended the ASTM and ANSI standards

were not applicable and it was therefore inappropriate to instruct the

jury it could conclude violation of the standards was evidence of

negligence. Second, Marriott contended there was insufficient evidence

to support improper training, one of Alcala’s asserted specifications of

negligence. The district court concluded a jury instruction on industry

standards was appropriate despite the experts’ conflicting opinions on

the standards’ applicability. It also concluded DePaepe’s testimony was

substantial evidence supporting an instruction including improper

training as a specification of negligence.

        Instruction No. 20, as submitted to the jury, stated,

              American Safety and Testing Materials (ASTM)
        Standard Practice for Safe Walking Surfaces requires exterior
        walkways shall be maintained so as to provide safe walking
        conditions (5.7.1). In addition, said standards require that
        exterior walkways shall be slip resistant (5.7.1.1). Finally, if
                                       13
      an exterior walkway is slippery, it is to be considered
      substandard (5.7.1.2).
            American National Standards Institute (ANSI) require
      that where snow and ice exists in pedestrian walkways, safe
      maintenance techniques shall include plowing, shoveling,
      deicing, salting or ice melting chemicals, and sanding, as
      needed (10.3.1).
            You may consider a violation of these standards as
      evidence of negligence.

Instruction No. 16 allocated to Alcala the burden of proving Marriott was

negligent in at least one of four ways: (1) improper training, (2)

inadequate maintenance, (3) failing to inspect the walkway, or (4) failing
to provide a slip-resistant walkway.

      E. The Verdict and Appeal. The jury returned a general verdict

finding Marriott negligent without identifying which specification or

specifications of negligence Alcala proved. The jury allocated ninety-eight

percent of the fault to Marriott, two percent to Alcala, and awarded

Alcala total damages of $1.2 million for medical expenses, lost wages,

pain and suffering, and loss of bodily function.      Marriott moved for

judgment notwithstanding the verdict, remittitur, or new trial, asserting

the district court erred in denying a continuing-storm instruction and in

submitting the other instructions to which Marriott objected.          The
district court denied the motion.

      Marriott appealed, and we transferred the case to the court of

appeals. The court of appeals ordered a new trial because it concluded

the evidence supported a continuing-storm instruction and did not

support the instructions on industry standards and improper training.

One judge dissented in part, concluding the district court correctly

refused to instruct on the continuing-storm doctrine.         We granted

Alcala’s application for further review.
                                     14

      II. Standard of Review.

      We have said “[w]e review a court’s refusal to give an instruction

for an abuse of discretion, while we review challenges to jury instructions

for correction of errors at law.” Anderson v. State, 

692 N.W.2d 360, 363

(Iowa 2005).    However, this distinction is relatively recent, growing

primarily out of a 2003 decision. See State v. Piper, 

663 N.W.2d 894, 914

 (Iowa 2003), overruled on other grounds by State v. Hanes, 

790 N.W.2d 545, 551

 (Iowa 2010).       In Piper, we stated “review of alleged

instructional error depends on the nature of the supposed error” and

cited a case indicating the refusal to give an inference instruction on

alleged spoliation is properly reviewed for an abuse of discretion.        

Id.

(citing State v. Langlet, 

283 N.W.2d 330, 336

 (Iowa 1979) (holding the

district court did not abuse its discretion in denying a spoliation

instruction as there was no evidence of an intent to destroy evidence)).

      We conclude Langlet correctly states the standard of review of the

district court’s refusal to give an inference instruction on spoliation

because that instruction acts as a discovery sanction and discovery

sanctions are discretionary. See Hendricks v. Great Plains Supply Co.,

609 N.W.2d 486, 491

 (Iowa 2000) (discussing the spoliation inference

and its remedies); Farley v. Ginther, 

450 N.W.2d 853, 856

 (Iowa 1990)

(noting the discretionary nature of discovery sanctions).      However, the

standard of review applied in Langlet and referenced in Piper does not

extend to all refusals to give a requested jury instruction.

      “Iowa law requires a court to give a requested jury instruction if it

correctly states the applicable law and is not embodied in other

instructions.” Sonnek v. Warren, 

522 N.W.2d 45, 47

 (Iowa 1994); accord

Weyerhaeuser Co. v. Thermogas Co., 

620 N.W.2d 819

, 823–24 (Iowa

2000); Herbst v. State, 

616 N.W.2d 582, 585

 (Iowa 2000).          The verb
                                           15

“require” is mandatory and leaves no room for trial court discretion.

Thus, we clarify today that absent the discretionary component present

in Langlet, we review refusals to give a requested jury instruction for

correction of errors at law. See, e.g., DeBoom v. Raining Rose, Inc., 

772 N.W.2d 1, 5

, 11–14 (Iowa 2009) (reviewing multiple jury instruction

claims, including refusal to give a requested pretext instruction, for

errors at law); Koenig v. Koenig, 

766 N.W.2d 635, 637

 (Iowa 2009)

(reviewing a district court’s refusal to give a general negligence

instruction for errors at law); Banks v. Beckwith, 

762 N.W.2d 149, 151

(Iowa 2009) (reviewing a district court’s refusal to give a res ipsa loquitur

instruction for errors at law); Pexa v. Auto Owners Ins. Co., 

686 N.W.2d 150, 160

 (Iowa 2004).          To the extent our cases perpetuate the Piper

distinction     and      extend      the     abuse-of-discretion        analysis      to

nondiscretionary refusals to give requested jury instructions supported

by the evidence and applicable law, we overrule them on that issue.3

       III. Analysis.

       A. Negligent Training. We must decide whether the district court

erred by submitting the negligent-training theory without any testimony

on the standard of care for training or its breach. It is axiomatic that
proof of the applicable standard of care and its breach are required to


       3See,  e.g., State v. Guerrero Cordero, 

861 N.W.2d 253, 258

 (Iowa 2015); State v.
Edouard, 

854 N.W.2d 421, 431

 (Iowa 2014); Asher v. OB-Gyn Specialists, P.C., 

846 N.W.2d 492, 496

 (Iowa 2014); Hagenow v. Schmidt, 

842 N.W.2d 661, 670

 (Iowa 2014);
State v. Frei, 

831 N.W.2d 70, 73

 (Iowa 2013); Crawford v. Yotty, 

828 N.W.2d 295, 298

(Iowa 2013); State v. Becker, 

818 N.W.2d 135, 140

 (Iowa 2012); State v. Marin, 

788 N.W.2d 833, 836

 (Iowa 2010); State v. Lyman, 

776 N.W.2d 865, 876

 (Iowa 2010); State
v. Reynolds, 

765 N.W.2d 283, 288

 (Iowa 2009); Smith v. Koslow, 

757 N.W.2d 677

, 679–
80 (Iowa 2008); Summy v. City of Des Moines, 

708 N.W.2d 333, 340

 (Iowa 2006); In re
Det. of Palmer, 

691 N.W.2d 413, 416

 (Iowa 2005); Kiesau v. Bantz, 

686 N.W.2d 164, 171

(Iowa 2004). Of course, clarifying the standard of review for jury instruction challenges
does not disturb the substantive legal conclusions in these decisions.
                                    16

recover in tort. See Thompson v. Kaczinski, 

774 N.W.2d 829, 834

 (Iowa

2009) (“An actionable claim of negligence requires ‘the existence of a duty

to conform to a standard of conduct to protect others, [and] a failure to

conform to that standard . . . .’ ” (quoting Stotts v. Eveleth, 

688 N.W.2d 803, 807

 (Iowa 2004))). Dismissal is required when the record contains

no evidence regarding the applicable standard of care or its breach. See

Godar v. Edwards, 

588 N.W.2d 701

, 709–10 (Iowa 1999) (affirming

directed verdict in defendant’s favor on claims against employer for

negligent hiring, retention, and supervision); Hartig v. Francois, 

562 N.W.2d 427

, 430–31 (Iowa 1997) (holding defendant was entitled to

directed verdict on negligence claims based on insufficient evidence of

the standard of care or its breach); Fisher v. Dallas County, 

369 N.W.2d 426, 431

 (Iowa 1985) (affirming dismissal because the “record contains

no evidence regarding that standard of care” or its breach).

      Marriott argues on appeal that reversal is required because “[t]he

record contains no evidence of a standard of care imposing a discrete

duty on Marriott to instruct employees about a specific period of time

that a particular deicing compound will remain effective.” Alcala argues

expert testimony was not required to establish the standard of care for

training employees on ice removal.       Regardless, there must be some

evidence or testimony to support the instruction on negligent training.

No witness, lay or expert, testified that Marriott should have trained

DePaepe on the durational effectiveness of the deicer.         Cf. Tomeo v.

Thomas Whitesell Constr. Co., 

823 A.2d 769, 777

 (N.J. 2003) (affirming

summary judgment dismissing negligent-training claim as to employee’s

use of snowblower, concluding “[n]o special training was required to be

given . . . because it is a consumer product” with adequate warnings and

instructions). No expert or lay witness testified about any shortcoming
                                     17

in Marriott’s training or what training should be provided. Alcala argues

the jury can find Marriott breached a duty to train DePaepe by

connecting these dots: there was ice on the sidewalk; therefore, DePaepe

did not apply deicer properly; therefore, Marriott did not train her

properly.   If that is sufficient, then going forward, employers could be

sued for negligent training whenever there is an avoidable accident. We

conclude that the evidence in this case was insufficient to support a

negligent-training instruction or specification of negligence.

     Other courts have held that negligent-training claims fail as a

matter of law without testimony establishing the standard of practice for

training employees for the job at issue. Judge Merrick Garland recently

surveyed many such decisions in Burke v. Air Serv International, Inc., 

685 F.3d 1102

, 1106–07 & n.2 (D.C. Cir. 2012) (affirming summary judgment

dismissing negligent-training claim).      See also Moore v. District of

Columbia,   

79 F. Supp. 3d 121

, 144–45 (D.D.C. 2015) (surveying

authorities and granting summary judgment dismissing negligent-

training claims).   It is not enough to show the mistakes or negligent

conduct of the employee; rather, to recover against the employer under a

negligent-training theory, evidence of a specific standard of care for

training and its breach is required. See Carter v. Nat’l R.R. Passenger

Corp., 

63 F. Supp. 3d 1118

, 1156–57 (N.D. Cal. 2014) (granting summary

judgment dismissing negligent-training claim because “[p]laintiffs do not

link any of the evidence [of the errors of an Amtrak train engineer] to any

specific federal standard of care [for training] . . . or explain how the

evidence, if credited by the jury, would establish a violation of such a

standard”); Wimer v. State, 

841 P.2d 453, 455

 (Idaho Ct. App. 1992)

(affirming summary judgment dismissing claim that the state negligently

trained game officers who charged elk hunters with criminal violations;
                                     18

concluding affidavit testimony that the “training and supervision must

have been deficient because of the manner in which this investigation

was conducted” was insufficient to support an inference based on a

“single incident standing by itself” (quoting Anderson v. City of Pocatello,

731 P.2d 171, 181

 (Idaho 1986))).

     In Inmon v. Crane Rental Services, Inc., the Arizona Court of Appeals

affirmed a partial summary judgment dismissing a negligent-training

claim. 

67 P.3d 726, 733

 (Ariz. Ct. App. 2003), overruled on other grounds

by Tarron v. Bowen Mach. & Fabricating, Inc., 

235 P.3d 1030, 1036

 (Ariz.

2010) (en banc). Charles Inmon and Mark Cummings, ironworkers, were

injured when a loaded crane operated by Eddie De La Torre tipped over

at their jobsite. 

Id.

 at 727–28. They sued his employer, a crane rental

company, alleging it was independently negligent in training him. Id. at

728. The plaintiff’s expert testified he “could not say that De La Torre

was improperly trained, but only that his actions did not demonstrate

proper training.”   Id. at 733.   The trial court granted the crane rental

company’s motion for summary judgment on that issue, noting the lack

of testimony “to indicate what training was omitted” and concluding the

“[f]ailure to demonstrate competence is not automatically a showing of

inadequate training.”   Id. The appellate court agreed and rejected the

plaintiffs’ argument that the fact finder could infer negligent training,

stating, “[I]n the absence of facts specifying in what way De La Torre’s

training or lack thereof was negligent, . . . there is no evidence showing

that such negligent training was the proximate cause of Plaintiffs’

injuries.” Id. We see the same failure of proof as to Alcala’s negligent-

training claim.

     Alcala cites no case from any jurisdiction upholding a recovery on a

record devoid of testimony as to the standard for training for the job at
                                    19

issue and devoid of testimony as to how the training fell short. We hold

it was error to submit negligent training as one of the specifications of

Marriott’s negligence.    The jury returned a general verdict without

specifying which grounds of fault Alcala proved. A new trial is required

after a general verdict is returned for the plaintiff if the evidence was

insufficient to submit one of several specifications of negligence. Asher v.

OB-Gyn Specialists, P.C., 

846 N.W.2d 492, 497

 (Iowa 2014). That is what

happened here.

      B. Private Safety Codes.        We conclude a new trial is also

required based on the district court’s prejudicial error in the jury

instruction on the ASTM standards. “We have on a number of occasions

found instructions that unduly emphasized certain evidence were flawed

and required reversal.”   Burkhalter v. Burkhalter, 

841 N.W.2d 93, 106

(Iowa 2013); see also Olson v. Prosoco, Inc., 

522 N.W.2d 284, 287

 (Iowa

1994) (“[E]ven instructions correctly stating the law should not give

undue emphasis to any particular theory, defense, stipulation, burden of

proof, or piece of evidence.”).   The district court went beyond unduly

emphasizing certain evidence—the trial judge adopted the position of

plaintiff’s expert over conflicting testimony of the defense expert in

Instruction No. 20:

            American Safety and Testing Materials (ASTM)
      Standard Practice for Safe Walking Surfaces requires exterior
      walkways shall be maintained so as to provide safe walking
      conditions (5.7.1). In addition, said standards require that
      exterior walkways shall be slip resistant (5.7.1.1). Finally, if
      an exterior walkway is slippery, it is to be considered
      substandard (5.7.1.2).
            ....
            You may consider a violation of these standards as
      evidence of negligence.
                                    20

The defense expert, Bowman, testified the ASTM standard is inapplicable

to snow and ice removal and instead governs the methods and materials

used for constructing walkways. Experts for both sides agreed the type

of slip-resistant, broom-finished concrete used in the construction of

Marriott’s sidewalk complied with ASTM standards when dry. The only

reason the sidewalk was slippery was the presence of ice.          Bowman

further gave uncontroverted testimony that ASTM had considered

adopting a standard for snow and ice removal but abandoned the idea

due to lack of agreement on such a standard.           The existing ASTM

standards do not mention ice or snow.        Yet the jury was essentially

instructed that an icy sidewalk is substandard.       That is not how we

interpret the ASTM standard. Alcala cites no case from any jurisdiction

holding ASTM standard 5.7 is violated when an otherwise compliant

broom-finished concrete surface is icy, and we found no such case in our

own research.

      Even assuming the expert testimony was sufficient to generate a

jury question regarding the applicability of the standard, the district

court erred by taking one side and telling the jury the standard was

violated by icy conditions. See Almonte v. Averna Vision & Robotics, Inc.,

128 F. Supp. 3d 729, 744

 (W.D.N.Y. 2015) (“Usually, when there is a

factual question about the applicability of two competing industry

standards, it is for the fact-finder to determine which standard applies.”).

When experts disagree, the jury should be instructed to decide whether

the standard applies.       See Rupolo v. Oshkosh Truck Corp., 

749 F. Supp. 2d 31, 43

 (E.D.N.Y. 2010) (“[T]he applicability of the ANSI and

OSHA standards is a factual question. . . . Accordingly, . . . it should be

for the fact-finder to determine whether [the expert’s] reliance on the
                                    21

ANSI and OSHA standards is appropriate.”). The district court erred in

giving Instruction No. 20, and that error requires a new trial.

      C. The Continuing-Storm Doctrine.            The court of appeals

majority concluded Marriott was entitled to its requested instruction on

the continuing-storm doctrine.      The dissenting judge concluded the

evidence was insufficient to support a jury instruction on the doctrine.

Because we have determined that the instructional errors discussed

above require a new trial, we need not decide whether the district court

erred by refusing Marriott’s requested instruction on the continuing-

storm doctrine.   We recognize the issue will arise again on remand if

Marriott renews its request for an instruction on the doctrine.

      We adopted the continuing-storm doctrine in Reuter. 

244 Iowa at 943

, 

57 N.W.2d at 227

. Quoting from a Virginia case, we established

      the rule that a business establishment, landlord, carrier, or
      other inviter, in the absence of unusual circumstances, is
      permitted to await the end of the storm and a reasonable
      time thereafter to remove ice and snow from an outdoor
      entrance walk, platform, or steps. The general controlling
      principle is that changing conditions due to the pending
      storm render it inexpedient and impracticable to take earlier
      effective action, and that ordinary care does not require it.

Id.

 (quoting Walker, 

45 S.E.2d at 902

).

      In Rochford, the court of appeals concluded inclement winter

weather could constitute a storm even if it is not a blizzard. 

845 N.W.2d at 718

.   In that case, however, it was undisputed the plaintiff’s fall

occurred during freezing rainfall. See 

id.

 Thus, the holding in Rochford

does not clearly extend to mist or other precipitation leaving no

accumulation.

      Iowa courts have applied the continuing-storm doctrine in a few

other cases. For example, in Wailes v. Hy-Vee, Inc., the court of appeals

concluded the district court correctly gave a jury instruction on the
                                    22

continuing-storm doctrine when the plaintiff challenged the timing of the

defendant’s snow removal but snow was still falling when the plaintiff

was injured. 

861 N.W.2d 262

, 265–68 (Iowa Ct. App. 2014). We also

applied the continuing-storm doctrine and granted a defendant judgment

notwithstanding the verdict when “a trace of snow was recorded” on the

day of the plaintiff’s fall, “[i]t had been snowing off and on all morning,”

and “it was still snowing” at the time the plaintiff fell. Hovden v. City of

Decorah, 

261 Iowa 624, 628

, 

155 N.W.2d 534, 537

 (1968), superseded by

statute, 1984 Iowa Acts ch. 1002, § 1.

      This court has acknowledged “[t]he feebleness of human . . . efforts

in attempting to cope with the power of the elements.” Staples v. City of

Spencer, 

222 Iowa 1241, 1244

, 

271 N.W. 200, 202

 (1937).                 The

continuing-storm doctrine suspends a property owner’s general duty to

exercise reasonable care in warning of or removing snow and ice hazards

until a reasonable time after the storm because continually clearing ice

and snow during an ongoing storm would be impracticable. Reuter, 

244 Iowa at 943

, 

57 N.W.2d at 227

; Mattson v. St. Luke’s Hosp. of St. Paul, 

89 N.W.2d 743, 745

 (Minn. 1958); Walker, 

45 S.E.2d at 902

.

      Alcala in her application for further review argued for the first time

that the continuing-storm doctrine is no longer good law under the

Restatement (Third) of Torts, Liability for Physical and Emotional Harm.

The parties, however, did not address the impact of the Restatement

(Third) on the continuing-storm doctrine in their appellate briefs

preceding the court of appeals decision or in district court before the jury

was instructed. Neither the district court nor court of appeals addressed

whether the continuing-storm doctrine should be abandoned in light of

our adoption of section 7 of the Restatement (Third) of Torts in Thompson

in 2009. 774 N.W.2d at 834–35; cf. Crawford v. Extended Stay Am., LLC,
                                      23

No. 2007-CA-001127-MR, 

2008 WL 2610456

, at *4 (Ky. Ct. App. July 3,

2008) (Acree, J., concurring) (inviting Kentucky Supreme Court to revisit

“no-duty” rule for natural snow and ice accumulations in light of section

7 of the Restatement (Third)). We prefer to wait to decide the issue with

the benefit of a district court ruling and full adversarial briefing.

Accordingly, we decline to decide it now. See Hagenow v. Schmidt, 

842 N.W.2d 661, 677

 (Iowa 2014) (“[N]either the parties nor the district court

raised the provisions of the Restatement (Third) when instructing the

jury in this case. We defer for another day our consideration of these

provisions . . . .”). The parties are free to brief and argue that issue on

remand and may develop a different evidentiary record on weather

conditions in the new trial.

      IV. Disposition.

      For the foregoing reasons, Marriott is entitled to a new trial. We

vacate the decision of the court of appeals, reverse the district court

judgment, and remand the case for a new trial consistent with this

opinion.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED FOR NEW

TRIAL.

      All justices concur except Hecht, Wiggins, and Appel, JJ., who

concur in part and dissent in part.
                                           24

                                             #14–1058, Alcala v. Marriott Int’l, Inc.

HECHT, Justice (concurring in part and dissenting in part).

       I join Part II of the majority opinion clarifying that the scope of

review regarding refusal to give a requested jury instruction is for

correction of errors at law. Beyond that threshold question, however, the

majority and I part ways significantly.               I dissent because I find no

reversible error in either of the jury instructions Marriott challenges on

appeal.      I also conclude the district court correctly declined on this

record to submit the instruction proposed by Marriott on the continuing-

storm doctrine. I would vacate the decision of the court of appeals and

affirm the judgment the district court entered on the jury’s verdict.

       I. Negligent Training.

       The law governing this issue is well established. “In considering

whether [an] instruction is supported by substantial evidence, we give

the evidence the most favorable construction it will bear in favor of

supporting the instruction.”           Asher v. OB-Gyn Specialists, P.C., 

846 N.W.2d 492

, 496–97 (Iowa 2014). The majority orders a new trial in part

because it concludes no testimony established the parameters of

Marriott’s duty to exercise reasonable care in training its employees on

proper approaches in removing ice from sidewalks.                         But Marriott

concedes it owed a duty.4 Its objection to the training specification of

       4It  comes as no surprise that Marriott did not deny it owed a duty to exercise
reasonable care in training its employees on the subject of removing ice from its
sidewalks. Under section 7(a) of the Restatement (Third) of Torts, an “actor ordinarily
has a duty to exercise reasonable care when the actor’s conduct creates a risk of
physical harm.” 1 Restatement (Third) of Torts: Liab. for Physical & Emotional Harm
§ 7(a), at 77 (2010) [hereinafter Restatement (Third)]; see Thompson v. Kaczinski, 

774 N.W.2d 829, 835

 (Iowa 2009) (adopting the Restatement (Third)’s duty framework).
“Thus, in cases involving physical harm, courts ordinarily need not concern themselves
with the existence or content of this ordinary duty. They may proceed directly to the
elements of liability . . . .” 1 Restatement (Third) § 6 cmt. f, at 69. Those four elements
of a prima facie claim for negligence are “(1) failure to exercise reasonable care;
                                          25

negligence was instead that Alcala failed to present substantial evidence

of a breach of that duty.

       Alcala did not present expert testimony on the standard of care

hotels must meet in training their employees on proper snow and ice

removal techniques or on Marriott’s breach of that duty.                  In my view,

however, expert testimony was not required on these subjects.                      “The

question of what a reasonable person would do . . . in training and

supervising employees is one permissibly resolved on the basis of the

knowledge and experience of lay persons.”              Graves v. N.E. Servs., Inc.,

345 P.3d 619, 628

 (Utah 2015).5

       Some weather-related phenomena are clearly within a layperson’s

understanding:



_________________________
(2) factual cause; (3) physical harm; and (4) harm within the scope of liability (which
historically has been called ‘proximate cause’).” 

Id.

 § 6 cmt. b, at 67–68. Thus, Alcala
had no burden to present express testimony that Marriott owed a duty to exercise
reasonable care in training its employees on the proper methods of clearing ice from its
sidewalks.
       5Although   expert testimony was not required to justify submission of the issue
to the jury, it would of course have been admissible. In a 1963 slip-and-fall case where
the fall occurred on an indoor dance floor, we concluded a court properly admitted
expert testimony from those familiar with “care of waxed floors and the safe practices in
wax application thereon.” Smith v. Cedar Rapids Country Club, 

255 Iowa 1199, 1210

,

124 N.W.2d 557, 564

 (1963). The testimony was helpful because it aided jurors in
understanding the interplay between the particular chemical used and the material
comprising the dance floor on which the injury occurred, as well as “the proper
application and slipperiness of” the floor wax. 

Id. at 1211

, 

124 N.W.2d at 564

.
However, Smith does not stand for the proposition that expert testimony was required in
this case on the question whether Marriott breached its duty to train its employees
properly. First, I believe laypeople are more familiar with ice, deicer, and concrete
sidewalks than the properties of the floor wax when applied to the flooring material at
issue in that case. Second, and more importantly, we concluded in Smith only that
expert testimony was permissible, not that it was required to engender a jury question.
See 

id.

 at 1210–11, 124 N.W.2d at 564–65; accord Boham v. City of Sioux City, 

567 N.W.2d 431, 437

 (Iowa 1997) (concluding expert testimony about crossing guard
training was sufficient—not that it was required—to support a failure-to-train
specification of negligence).
                                    26
      We know that it is dangerous to be in or near certain
      structures, or even trees, during lightning storms. We also
      know that, if we are in an area of high lightning frequency,
      we should be cautious, and that the height of the structures
      in relation to the surrounding terrain might attract lightning.
      In other words, . . . risk assessment factors [regarding
      lightning damage protection] [a]re not complicated or novel
      ideas or even foreign to a layperson’s understanding about
      the phenomenon of lightning.

Mensink v. Am. Grain, 

564 N.W.2d 376, 381

 (Iowa 1997). Similarly, a

plaintiff need not present an engineer to opine that stacking logs

haphazardly might result in the pile toppling over and injuring a

bystander:

      Where the construction of a given pile of timber is properly
      explained, it appears to us that a jury of [people] not
      especially experienced in piling timber would have no
      difficulty in forming an opinion for themselves as to the
      liability of the pile to fall and injure a person who should be
      near it. Such work, it seems to us, does not in any proper
      sense involve the mystery of technical knowledge or skill.

Baldwin v. St. Louis, Keokuk & N. Ry., 

68 Iowa 37, 39

, 

25 N.W. 918, 919

(1885).   Likewise, I would hold deicer’s durational effectiveness and

Marriott’s duty to address the subject when training its employees on

proper techniques for removing ice from sidewalks does not require

expert testimony.   Information on the durational effectiveness of the

deicer Marriott used is discernable from the product manufacturer

without special knowledge, education, or expertise. Indeed, Bowman—

an expert in architecture but a layperson with respect to commercial

snow and ice removal—demonstrated his ability to discern the durational

effectiveness simply by reading available product literature. See Spencer

v. Wal-Mart Stores E., LP, 

930 A.2d 881

, 888–89 (Del. 2007) (noting an

architect was not “an expert on ice and snow removal”).

      I now turn to the question of whether the record—when viewed in

the light most favorable to the instruction, see Asher, 

846 N.W.2d at 27

496–97—includes substantial evidence of a breach of Marriott’s duty to

properly train its employees. Unlike the majority, I conclude the record

does include evidence from which the jury could find Marriott breached

its duty to exercise reasonable care in training.

      The evidence on the condition of Marriott’s sidewalk and the

presence of adequate quantities of deicer is conflicting and greatly in

dispute. DePaepe testified there was already “salt all over the sidewalks”

when she arrived for her overnight shift at 10:00 p.m. on January 20.

Although a reasonable fact-finder could find on this record that there

was no new measurable precipitation during her shift, DePaepe

testified—and her nightly checklist represents—that she applied more

deicer three times during her eight hours: from 12:03 to 12:20 a.m., 2:29

to 2:59 a.m., and 5:24 to 5:40 a.m.        If Bowman’s testimony that the

deicer generally remains effective for three to four hours is correct, and

DePaepe’s testimony is true, any failure to train DePaepe about

durational effectiveness of the deicer arguably did not cause Alcala’s

injury because DePaepe testified she reapplied the deicer within the

product’s durational effectiveness.

      But the jury was entitled to make credibility determinations and

sort out conflicts in the evidence. DePaepe testified there was plenty of

deicer on the sidewalk both when she arrived at 10:00 p.m. on

January 20 and when she left after 6:00 a.m. on January 21. Marriott’s

operations manager testified she remembered the deicer granules

crunching under her boots as she entered the building around 7:00 a.m.

on January 21. However, other evidence tended to show that at the time

Alcala fell, the sidewalk was treacherously slick. The paramedics who

responded to the 911 call testified they “had a hard time getting to”

Alcala and “were having a hard time staying” upright themselves. One
                                    28

even testified the sidewalk was “eight or higher” on a ten-point

slipperiness scale and that the fire department dispensed its own

chemical to provide the paramedics with better traction. Furthermore,

another witness who was a guest at the Marriott testified that when he

left the hotel just before Alcala, the sidewalk was so slippery that he

opted to walk on the adjacent grass instead to avoid falling.

        A reasonable juror could infer from this conflicting evidence that

DePaepe did not apply the deicer with the frequency she claimed.         A

reasonable fact finder could also find from DePaepe’s testimony that she

had not been trained on the deicer’s durational effectiveness. The jury

could find that had DePaepe been provided this information during

training or instructed to seek out such information and follow it, she

would have understood any deicer applied before 3:00 a.m. (and certainly

before 10:00 p.m. the night before) would no longer be effective after four

hours if temperatures remained around freezing.        In other words, if

DePaepe’s testimony about distribution of the deicer and the condition of

the sidewalk at material times was rejected as not credible in whole or in

part, the jury could have found on this record that her failure to apply

the deicer properly was a result of Marriott’s inadequate training on the

durational effectiveness of the deicer.   Put yet another way, the jury

could have found that DePaepe did not apply the deicer in a timely

fashion because she was not properly trained on its durational

effectiveness.   This conclusion would require the jury to make several

inferences, but fact finders properly utilize inferences in almost every

case.

        I also reject the majority’s conclusion that a jury question on

negligent training must fail because Alcala did not offer express

testimony that Marriott breached its duty to exercise reasonable care in
                                     29

training its employees.    All manner of negligence claims that do not

require expert testimony to establish a standard of care are submitted to

juries—and have been for decades—without express testimony from a

witness that the defendant breached a duty owed to the plaintiff. For

example, in automobile negligence cases, trial judges commonly submit a

specification of negligence on the duty to keep a proper lookout without

express testimony—lay or expert—that the defendant breached the duty.

See, e.g., Graber v. City of Ankeny, 

616 N.W.2d 633

, 643–44 (Iowa 2000)

(concluding the record contained sufficient evidence to support an

instruction on proper lookout when both drivers testified about what

they saw immediately before the collision); Luther v. Jones, 

220 Iowa 95, 103

, 

261 N.W. 817, 821

 (1935) (concluding the trial court correctly

submitted proper lookout to the jury even though there was “no

evidence, aside from the fact of the accident, that [the defendant] failed to

keep a proper lookout”).

      Similarly, in premises liability cases against grocers, specifications

of negligence are commonly submitted to juries without express

testimony that grocers breached the duty to keep walkways free of

hazards. See, e.g., W. Supermarkets, Inc. v. Keith, 

528 So. 2d 317

, 320–

21 (Ala. 1988) (concluding a negligence claim was properly submitted to

the jury based on the plaintiff’s testimony about what she observed and

the store employees’ testimony that they swept and cleaned at regular

intervals); Strack v. Great Atl. & Pac. Tea Co., 

150 N.W.2d 361, 363

 (Wis.

1967) (concluding a jury’s finding that a store “failed to inspect and

sweep within a reasonable time before the accident” had “adequate

support in the evidence” even though there was “no direct testimony

establishing the Italian prune [on which the plaintiff slipped] was on the

floor” for a lengthy period). Just as the court in Strack did not require
                                     30

the plaintiff to produce express testimony that the defendant grocer

breached its duty to keep its aisles safe for customers by leaving a prune

on the floor too long, Alcala had no burden to produce testimony that

Marriott breached its duty to properly train DePaepe when it failed to

train her on the durational effectiveness of the deicing compound she

was required to use on the company’s sidewalks. And just as we do not

require a plaintiff to produce express testimony that the defendant failed

to keep a proper lookout while driving her car at the time of a crash,

Alcala had no burden to produce express testimony on Marriott’s breach

of its duty to train DePaepe in this case.

      I acknowledge the jury could conclude on this record that DePaepe

was credible and that she dutifully applied deicer three times during her

shift at the times she recorded on her checklist. But in evaluating the

sufficiency of the evidence supporting a jury instruction, “we give the

evidence the most favorable construction it will bear in favor of

supporting the instruction.”    Asher, 846 N.W.2d at 496–97.       Perhaps

Alcala could have presented more evidence supporting the improper

training specification of negligence, but what she did present—testimony

permitting the jury to conclude DePaepe was not trained on the

durational effectiveness of the deicing compound—was in my view at

least minimally sufficient to engender a jury question on the training

specification of negligence. I would therefore hold the district court did

not err in submitting Instruction 16.

      II. Private Industry Standards as Evidence of Negligence.

      I also disagree with the majority’s conclusion that the district court

erred in giving Instruction 20. The majority holds that because Russell

Kendzior and Alan Bowman provided different opinions as to the

industry safety standards’ applicability, the district court should have
                                    31

permitted the jury to determine whether the ASTM and ANSI standards

were applicable.     This conclusion misunderstands the allocation of

responsibility between the court and the jury on the issues of duty and

breach.

      While industry standards may have “no legislative sanction, it is

difficult to conceive a better test of care than compliance with [their]

provisions.” Smith v. Iowa Pub. Serv. Co., 

233 Iowa 336, 337

, 

6 N.W.2d 123, 123

 (1942). As the New Jersey Supreme Court has explained,

      A safety code ordinarily represents a consensus of opinion
      carrying the approval of a significant segment of an industry.
      Such a code is not introduced as substantive law, as proof of
      regulations or absolute standards having the force of law or
      of scientific truth. It is offered in connection with expert
      testimony which identifies it as illustrative evidence of safety
      practices or rules generally prevailing in the industry, and as
      such it provides support for the opinion of the expert
      concerning the proper standard of care.

McComish v. DeSoi, 

200 A.2d 116

, 120–21 (N.J. 1964). In other words,

industry   standards,    if   relevant,   properly   inform    the   court’s

determinations whether the defendant owes a duty to the plaintiff and

what that duty is.

      The existence of a legal duty and the scope of that duty are

questions of law for the court, not questions of fact for the jury. See,

e.g., Van Fossen v. MidAmerican Energy Co., 

777 N.W.2d 689, 693

 (Iowa

2009); Sweeney v. City of Bettendorf, 

762 N.W.2d 873, 880

 (Iowa 2009);

see also 1 Restatement (Third) of Torts: Liab. for Physical & Emotional

Harm § 6 cmt. b, at 67 (2010) [hereinafter Restatement (Third)]. Thus,

the court—not the jury—must decide whether a proffered industry

standard is applicable to a given set of facts. See Hansen v. Abrasive

Eng’g & Mfg., Inc., 

856 P.2d 625, 628

 (Or. 1993) (en banc) (discussing an

ANSI standard and noting “[d]etermination of the appropriate standard of
                                     32

care is an issue of law”). “ ‘[A]pplicability’ connotes no . . . compulsion to

conform with a particular standard. Rather, ‘applicability’ connotes mere

relevance . . . .” Keller v. United States, 

38 F.3d 16, 26

 (1st Cir. 1994)

(citation omitted). Typically the court determines applicability of industry

standards through rulings in advance of trial or relevance objections

during trial. If a standard has no application to the circumstances of the

case, it is irrelevant to the court’s duty analysis. See Aller v. Rodgers

Mach. Mfg. Co., 

268 N.W.2d 830

, 840–41 (Iowa 1978) (affirming a trial

court’s exclusion of some industry safety standards, in part because

some of the standards were for completely different industries and

therefore irrelevant).

      Marriott notably did not challenge the applicability of ASTM

Standard F1637 or ANSI Standard A1264.2 in its motion in limine, nor

did it make a relevance objection at trial when Kendzior relied on the

standards during his testimony. Instead, Marriott chose to contest the

standards’ applicability through Bowman’s expert opinion.           Bowman

opined the standards were not applicable to Marriott because they were

not binding through state law or a municipal ordinance and because

they were developed primarily to address employee—not pedestrian—

traction and safety. Both of Bowman’s opinions are without merit.

      The ASTM and ANSI standards discussed in this case “have not

been given the force of law.” See Jorgensen v. Horton, 

206 N.W.2d 100, 103

 (Iowa 1973) (concluding industry standards are “not conclusive on

the issue of negligence”). But Alcala did not assert negligence per se, so

the fact the industry standards do not carry the force of law does not

mean they have no relevance in this case. See Hansen, 

856 P.2d at 628

(concluding an ANSI standard was “relevant to the jury’s consideration of

whether defendant met the standard of care” even though the standard
                                    33

was “purely advisory and not binding on anyone”); see also Kent Vill.

Assocs. Joint Venture v. Smith, 

657 A.2d 330, 337

 (Md. Ct. Spec. App.

1995) (concluding “the fact that [an ANSI s]tandard has not been

officially adopted as a regulation” did not “destroy its relevance as

articulating a standard of care”). The majority erroneously attributes a

negligence per se claim to Alcala when it states the district court told the

jury the standard was violated by icy conditions. The district court did

no such thing; it merely told the jury what the standard says and

permitted the jury to conclude a violation, if one occurred, was some

evidence of negligence.

      Likewise, Bowman’s opinion that the standards primarily address

employees and not pedestrians does not preclude their relevance to the

existence of a duty or its breach in this case.      By analogy, although

OSHA regulations normally set forth an obligation only between

employers and employees, a violation of OSHA regulations is “evidence of

negligence as to all persons who are likely to be exposed to injury as a

result of the violation,” even if the person exposed to injury is not an

employee.   Koll v. Manatt’s Transp. Co., 

253 N.W.2d 265, 270

 (Iowa

1977); see also Smith v. Kris-Bal Realty, Inc., 

576 A.2d 934, 938

 (N.J.

Super. Ct. App. Div. 1990) (“[T]he OSHA code . . . may be relied upon to

illustrate industry standards and to provide support for the opinion of an

expert on the proper standard of care . . . even though plaintiff was a

business guest at the marina, not a worker.”). The same principle is true

here. Even if the ASTM and ANSI standards primarily address employee

safety, “there are numerous areas traversed by both” employees and

hotel guests—like the outdoor walkway on which Alcala fell. Sorrels v.

NCL (Bahamas) Ltd., 

796 F.3d 1275, 1282

 (11th Cir. 2015). Accordingly,

even assuming Bowman’s opinion as to the primary purpose of the
                                    34

standards is correct, it would not make them irrelevant in determining

whether Marriott owed a duty of reasonable care to Alcala under the

circumstances of this case. See 

id. at 1283

.

      The determination of whether a proffered industry standard is

relevant to the existence of a duty under a given set of facts is a question

of law for the court—not the jury. See Hansen, 

856 P.2d at 628

. Thus,

in deciding the relevance of industry standards to the existence of a

defendant’s duty, the district court must make the decision—as the

district court did in this case—even when presented with conflicting

expert testimony.     Some courts conclude industry standards are

applicable and some conclude they are not, depending on the

circumstances of the case—but the court decides the question of their

relevance.   Compare Briere v. Lathrop Co., 

258 N.E.2d 597, 604

 (Ohio

1970) (concluding the trial judge did not err in determining industry

standards were inapplicable “[i]n light of the conflicting testimony about

industry adherence to the [proffered] rules”), and Landsiedel v. Buffalo

Props., LLC, 

112 P.3d 610, 617

 (Wyo. 2005) (finding no reversible error in

the trial court’s “decision not to accept . . . industry standards as

defining the minimum standard of care” given the parties’ conflicting

evidence as to the standards’ applicability), with Dixon v. Int’l Harvester

Co., 

754 F.2d 573

, 582 (5th Cir. 1985) (“Although the testimony was in

dispute there was substantial evidence to indicate the relevancy of the

ANSI standards . . . .”), and Eagleburger v. Emerson Elec. Co., 

794 S.W.2d 210, 231

 (Mo. Ct. App. 1990) (en banc) (concluding a decision on ANSI

standards’ relevance “was a determination to be made by the trial court”

even though “there was substantial evidence by plaintiffs that the ANSI
                                          35

standards applied . . . and substantial evidence by [the defendant] that

they did not”).6

        By giving Instruction 20 in this case, the district court clearly

concluded the ASTM and ANSI standards were applicable and therefore

relevant to the existence of Marriott’s duty under the circumstances of

this case. The majority concludes the instruction was erroneous because

it means the court adopted Kendzior’s opinion on applicability over

Bowman’s.      But because the court, not the jury, decides whether the

standards are relevant, that was its prerogative, and because the experts

in this case were completely at odds, the district court could not have

adopted both experts’ views on relevance.               Furthermore, even when a

court    concludes     industry     standards     are    applicable,    it   does    not

automatically follow that the court credits an expert’s opinion as to

breach of those standards.          See Keller, 

38 F.3d at 29

.           A jury could

conclude, for example, that noncompliance with relevant industry

standards “was excusable, and therefore not negligent.” Morgan v. State,

862 P.2d 1080, 1083

 (Idaho 1993).

        I conclude Kendzior’s expert testimony is substantial evidence

amply supporting the district court’s determination that the standards


        6I acknowledge the highest court in New York has reached a different
conclusion. See Sawyer v. Dreis & Krump Mfg. Co., 

493 N.E.2d 920, 925

 (N.Y. 1986)
(“The ANSI requirements . . . could be considered by the jury as some evidence of
negligence if it first found that the standards set forth in the booklet represented the
general custom or usage in the industry.”). Accordingly, federal district courts applying
New York law have also left the question of relevance of industry standards to the jury.
See Almonte v. Averna Vision & Robotics, Inc., 

128 F. Supp. 3d 729, 744

 (W.D.N.Y.
2015); Rupolo v. Oshkosh Truck Corp., 

749 F. Supp. 2d 31, 43

 (E.D.N.Y. 2010). My
research reveals that many other courts addressing the question take a different
approach allocating to the court the responsibility of deciding the relevance of industry
standards to the existence of a duty. I find that approach consistent with the
traditional allocation of responsibility between the court and the jury and would
therefore adopt it in this case.
                                          36

were relevant to Marriott’s duty to exercise reasonable care.                   Having

clarified the question of relevance of the standards was a question of law

for the court, not a question of fact for the jury, I now turn to consider

whether the court committed legal error by concluding ASTM Standard

F1637 and ANSI Standard A1264.2 were relevant to the duty issue in

this case.

       My analysis of this question is slightly more difficult than it might

be in other cases because neither party marked the ASTM and ANSI

standards and caused them to be made part of the record. Nonetheless,

the trial transcript reveals they were presented to the court and shown to

the jury via a projector during Kendzior’s testimony. Kendzior read from

the standards and Instruction 20 contains verbatim language from them.

Additionally, the standards’ substance is published and available to this

court. Thus, this is not a case where “the content of the [standard]s is

not specified,” which might make us “unable to determine from the

record before us the relevance of the sections cited.” Gerace v. 3-D Mfg.

Co., 

522 N.W.2d 312

, 318–19 (Iowa Ct. App. 1994).

       While    we    often    address      industry     standards     in    terms    of

admissibility, I conclude admission of them as an exhibit is not a

condition precedent to their applicability and their relevance to the

court’s determination of the existence of a legal duty.7 I find support for
this conclusion in three cases.

       In a Colorado case, the parties debated whether OSHA regulations

were applicable. Scott v. Matlack, Inc., 

39 P.3d 1160, 1168

 (Colo. 2002)


       7Although   admitting industry standards as an evidentiary exhibit is not a
condition precedent to the court’s consideration of them in its determination of the duty
question, I encourage the bench and bar in future cases to mark and identify them for
inclusion in the record.
                                    37

(en banc). “Specific regulations were not entered into evidence but were

discussed extensively by various witnesses.”     

Id.

   The court concluded

“the jury should be permitted to hear evidence of [OSHA] regulations as

some indication of the standard of care.” 

Id. at 1170

 (emphasis added).

The court spoke in terms of “admitting evidence,” but it is clear the

evidence came solely—and permissibly—through testimony, not through

an evidentiary exhibit. See 

id. at 1164, 1170

.

      In a Missouri case, an expert was “not allowed to cite . . . specific

[standard]s” but did testify that “ANSI standards exist . . . and that he

reviewed and considered those standards” in forming his opinion.

Ratcliff v. Sprint Mo., Inc., 

261 S.W.3d 534, 550

 (Mo. Ct. App. 2008). The

Ratcliff court found no reversible error resulted from the ruling

precluding the expert’s reference to specific standards because the jury

heard their substance through the expert’s testimony. See 

id.

      Finally, we have noted that private safety codes are on occasion a

subject of trial testimony even when documents evidencing them are not

received in evidence.   See Isaacs v. E. Iowa Light & Power Coop., 

236 Iowa 402, 408

, 

19 N.W.2d 208, 211

 (1945).        In Isaacs, we noted the

appellate record did not show a private safety code was offered into

evidence.   See 

id. at 408

, 

19 N.W.2d at 211

.     We concluded that fact

alone resulted in no reversible error given that “some reference in the

testimony to said code” was permitted and because compliance with the

private safety code was not determinative of the defendant’s compliance

with the standard of care. See 

id.

 at 408–09, 

19 N.W.2d at 211

; accord

Cronk v. Iowa Power & Light Co., 

258 Iowa 603, 612

, 

138 N.W.2d 843, 848

 (1965) (concluding “[a]ctionable negligence may exist even though” a

defendant complies with an industry standard or private safety code).
                                      38

      I conclude Alcala adequately presented the ASTM and ANSI

standards at issue in this case in the district court so that the court

could determine whether they were relevant to the existence of Marriott’s

duty of care. Cf. Porter v. Omni Hotels, Inc., 

579 S.E.2d 68, 71

 (Ga. Ct.

App. 2003) (concluding a plaintiff did not show an ANSI standard applied

when he neither placed the standard into evidence nor presented expert

testimony regarding the standard).

      After reviewing the language of the standards discussed by the

experts at trial and incorporated in Instruction 20, I would hold the

district court did not err in finding them applicable and relevant to

Marriott’s duty of care. The ANSI standard clearly addresses snow and

ice removal from pedestrian walkways.            It is not part of a statute or

ordinance, but the district court instructed the jury only that it could

consider violation of the standard as evidence of negligence.

      The ASTM standard is a closer question.               Marriott contends

Standard F1637 addresses only construction materials and design, so

the notion that walkways must be slip resistant and that a slippery

exterior walkway is substandard evaluates only the characteristics of the

construction material used to build the walkway (in this case concrete),

not any effects of weather on the walkway.            That position has some

intuitive   appeal,   but   section   1.1   of   Standard   F1637    addresses

construction     standards     and    “minimum        maintenance     criteria.”

Furthermore, the standard also provides walkways should be slip

resistant under “expected environmental conditions and use.” Notably,

the standard does not expressly exclude from its scope this particular

class of persons, property, or circumstances. Cf. Lynch v. Reed, 

944 P.2d 218, 224

 (Mont. 1997) (concluding an ANSI construction standard was

inapplicable because the provision setting forth the scope of the standard
                                     39

expressly stated the standard did not apply to residential projects);

Kalish v. HEI Hosp., LLC, 

980 N.Y.S.2d 80

, 82 (App. Div. 2014) (noting

Standard F1637 “specifically identif[ies] bath tubs and showers as

beyond the scope of the practices contained therein”).           Nor is the

standard obviously inapplicable because it is directed at an entirely

different industry. Cf. Aller, 268 N.W.2d at 840–41 (concluding “safety

standards in the metalworking industry” were inapplicable and irrelevant

in a case involving the woodworking industry). Although ASTM Standard

F1637 is couched in much more general terms than the ANSI standard, I

conclude the district court did not err in finding it relevant to the court’s

determination of Marriott’s duty and to the jury’s determination of

negligence.    See Williams v. Crane, No. 2:14-CV-241 TS, 

2015 WL 7176370

, at *2 (D. Utah Nov. 13, 2015) (concluding, in a slip-and-fall

case involving snow and ice, that “the ASTM Standard Practice for Safe

Walking Surfaces”—which is number F1637—“may be helpful to the jury

in determining reasonable safety practices for safe walking surfaces”).

Accordingly, the district court did not err in giving Instruction 20.

      C.      Continuing Storm.       The district court concluded the

continuing-storm doctrine had no application under the facts of this case

and declined Marriott’s request for an instruction. Although the majority

does not reach this issue, I conclude that, even without reaching the

doctrine’s continued vitality under the Restatement (Third), the district

court did not err and should be affirmed.

      We adopted the continuing-storm doctrine in 1953. Reuter v. Iowa

Tr. & Sav. Bank, 

244 Iowa 939, 943

, 

57 N.W.2d 225, 227

 (1953).              I

generally agree with the majority’s recitation of the history of the doctrine

in Iowa, but I offer one additional point: There is a difference between a

claim challenging the timing of snow removal efforts and a claim
                                     40

challenging the manner of snow removal efforts. Wailes v. Hy-Vee, Inc.,

861 N.W.2d 262, 267

 (Iowa Ct. App. 2014).          A claim challenging the

manner of snow removal is not subject to the continuing-storm doctrine

because it merely seeks to enforce “the general rule that an actor

ordinarily has a duty to exercise reasonable care when the actor’s

conduct creates a risk of physical harm.” Id.; see 1 Restatement (Third)

§ 7(a), at 77; see also Robinson v. Park Cent. Apartments, 

248 F. Supp. 632, 635

 (D.D.C. 1965) (“The defendants undertook the task of clearing

the sidewalk . . . . Even if there was no legal duty to do so, once a person

voluntarily undertakes to perform a task, he [or she] is held to the

requirement that it should be done free of negligence . . . .”); Estep v. B.F.

Saul Real Estate Inv. Tr., 

843 S.W.2d 911, 914

 (Ky. Ct. App. 1992) (“In

this case, [the land occupiers] opted to attempt to clear their lot and

sidewalks of ice and snow . . . . Since they chose to so act, they must act

in a reasonable manner or be liable for their failure.”); Danner v. Myott

Park, Ltd., 

306 N.W.2d 580, 583

 (Neb. 1981) (reversing a verdict in a

defendant’s favor, remanding for new trial, and disapproving of the

continuing-storm instruction the trial court gave because it erroneously

allowed the jury to find “that improper clearing of snow and ice . . . was

of no consequence because defendant had a right to wait until the end of

the storm before doing anything at all”). Because I conclude the evidence

here did not justify a continuing-storm instruction in any event, I find it

unnecessary to decide whether Alcala challenges the timing or manner

(or both) of Marriott’s snow and ice removal.
                                       41

      We have not had occasion to define the word “storm” precisely,8

nor have we prescribed an outer limit of what might be considered a

reasonable time for removing snow or ice from walkways after a storm

ends under the continuing-storm doctrine.            See Frykman v. Univ. of

Minn.—Duluth, 

611 N.W.2d 379, 381

 (Minn. Ct. App. 2000) (declining to

resolve a case as a matter of law because the facts did not establish “a

clear-cut storm incident”); see also Batie v. City of Humboldt, 

228 Iowa 528

, 532–33, 

292 N.W. 857, 859

 (1940) (declining, in a pre-Reuter case,

to conclude three hours between the end of a snowstorm and a plaintiff’s

fall was as a matter of law an unreasonable delay in addressing the

hazard).   However, in considering whether the evidence in this case

supports Marriott’s requested continuing-storm instruction, I keep in

mind the rule’s purpose and animating principle, as this court does in

many other contexts.       See, e.g., Baker v. Bridgestone/Firestone, 

872 N.W.2d 672

, 678 & n.4 (Iowa 2015) (acknowledging the longstanding

principle that the “humanitarian and beneficent purpose” of workers’

compensation statutes informs our interpretation of them); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Howe, 

706 N.W.2d 360, 378

 (Iowa

2005) (keeping in mind “the underlying purposes of attorney discipline”

when determining a sanction for ethical misconduct); Renander v. Inc.,

Ltd., 

500 N.W.2d 39, 42

 (Iowa 1993) (declining to interpret a statute to

“expand the legislature’s narrow purpose”).

      The rule’s purpose is essentially to prevent land occupiers from

having to undertake Sisyphean tasks every time it snows. See Reuter,

244 Iowa at 943

, 

57 N.W.2d at 227

. But not every weather event thwarts


       8In particular, we have not been called upon to decide how severe a weather

event must be to support a continuing-storm instruction.
                                    42

cleanup. See Powell v. MLG Hillside Assocs., L.P., 

737 N.Y.S.2d 27, 29

(App. Div. 2002). “[I]f the storm has passed and precipitation has tailed

off to such an extent that there is no longer any appreciable

accumulation, then the rationale for continued delay abates, and

common sense would dictate that the rule not be applied.” 

Id.

 A weather

event not presenting an ongoing deluge of subzero temperatures and

blowing and drifting snow, see Olejniczak v. E.I. du Pont de Nemours &

Co., 

79 F. Supp. 2d 209, 217

 (W.D.N.Y. 1999), freezing rain, see Rochford

v. G.K. Dev., Inc., 

845 N.W.2d 715, 718

 (Iowa Ct. App. 2014), or slush

and snow pedestrians might track into a building’s vestibule, see Parsons

v. H.L. Green Co., 

233 Iowa 648

, 648–49, 

10 N.W.2d 40, 41

 (1943), does

not present the kinds of changing conditions the continuing-storm

doctrine addresses. See Reuter, 

244 Iowa at 943

, 

57 N.W.2d at 227

.

      Courts in other jurisdictions have addressed allegedly ongoing

storms and concluded a lack of changing conditions might render the

continuing-storm doctrine inapplicable.      For example, in Powell, the

court found it important in rejecting the doctrine’s application that “there

was nothing more than trace amounts of precipitation during the two

hour and 20 minute period . . . prior to the accident.” 

737 N.Y.S.2d at 29

.   In another New York case, the court questioned whether the

analogous storm-in-progress rule applied when there was a two-hour

window “between the cessation of freezing rain and the accident” during

which normal (not freezing) rain fell.   Vosper v. Fives 160th, LLC, 

973 N.Y.S.2d 589, 590

 (App. Div. 2013).

      Of course, the continuing-storm doctrine “does not foreclose

submission to the jury, on a proper evidentiary foundation, of the factual

determination[] of whether a storm has ended.” Kraus v. Newton, 

558 A.2d 240

, 243–44 (Conn. 1989).        In one Connecticut case, the court
                                         43

found sufficient the evidentiary foundation for a requested continuing-

storm instruction because “climatological records . . . detailed a number

of different types of weather between 7 a.m. and 4 p.m. on the day of the

plaintiff’s fall, including light snow, freezing rain, heavy rain, light rain

and mist.”     Umsteadt v. G.R. Realty, 

1 A.3d 243, 248

 (Conn. App. Ct.

2010). However, when I evaluate this record while keeping in mind the

continuing-storm doctrine’s purpose, I conclude the district court

correctly rejected the proposed instruction in this case.

      The certified weather records in this case unquestionably show

mist continuing from January 20 through the morning of January 21 in

Moline and mist at some point on January 21 in Davenport. While those

locations are a few miles from Bettendorf, we have long acknowledged

that a certified weather record from a nearby observation point is

“competent and relevant” evidence “for the purpose of showing the

temperature and snowfall during the time it purport[s] to cover.” Huston

v. City of Council Bluffs, 

101 Iowa 33, 39

, 

69 N.W. 1130

, 1131 (1897)

(accepting weather records from Omaha, Nebraska as indicative of

weather in Council Bluffs, Iowa during the same time). But the mist did

not   present    the   types   of    changing    conditions   undergirding   the

continuing-storm doctrine.          By 7:00 p.m. on January 20, over twelve

hours before Alcala fell, the weather system was no longer producing

measurable quantities of precipitation in nearby Moline and Davenport;

nor did it feature other phenomena—like strong gusts of wind or blowing

snow—that would have made cleanup and sidewalk safety precautions

impractical.

      Meteorological      data       from     nearby   Moline    indicates   no

accumulations of precipitation after 7:00 p.m. on January 20. At most,

the data from Davenport indicates a trace amount of precipitation was
                                    44

observed on January 21.        But the Davenport data lacks temporal

specificity, so if the district court had given Marriott’s requested

instruction, the jury would have had to speculate that the trace accruing

on   January   21   occurred    before   Alcala   fell   around   8:00   a.m.

“[S]peculation is not substantial evidence.” Sleeth v. Louvar, 

659 N.W.2d 210, 215

 (Iowa 2003); cf. La Due v. G & A Grp. Inc., 

660 N.Y.S.2d 215, 216

 (App. Div. 1997) (declining to grant summary judgment based on the

storm-in-progress rule because while it was undisputed some snowfall

occurred “on the date of plaintiff’s accident, the meteorological records do

not demonstrate the specific hours during which the snow fell”).

Furthermore, the Davenport data reflects 0.01 inches of precipitation on

January 25. Thus, the trace amounts on January 21 totaled even less

than that. I would conclude as a matter of law that precipitation totaling

less than 0.01 inches on January 21 did not impede Marriott’s efforts to

clear the ice from the sidewalk.

      Indeed, the fact that Marriott claims to have made repeated efforts

to clear ice and snow after all accumulation associated with the storm

event stopped is compelling evidence that the weather in the early

morning hours of January 21 posed no obstacle making removal of ice

from Marriott’s sidewalk impractical.    This is not a case where a land

occupier tried once in vain to clear a path but howling winds and

relentless snowfall forced them inside to await the storm’s passage, or a

case where “[a] fairly warm autumn day . . . suddenly changed into a

freezing winter’s evening by an outburst of elemental fury.” Parks v. City

of Des Moines, 

195 Iowa 972, 983

, 

191 N.W. 728

, 733 (1923) (De Graff,

J., dissenting). Rather, Marriott’s employees attempted to clear—or at

least represented that they did clear—the sidewalks at least six times

between 6:00 p.m. on January 20 and 6:00 a.m. on January 21.
                                     45

      Nor did the lay testimony about the weather conditions on

January 21 constitute substantial evidence supporting a continuing-

storm instruction. Like the district court, I would conclude the majority

of statements—for example, that “it was quite icy” and “there were

accidents all over town”—simply described the effects of the January 20

storm event, not its continuation at a time material to Alcala’s fall. At

best, one or two witnesses testified that there was mist in the air on the

morning of January 21. But I find no substantial evidence in this record

tending to prove the weather was so inclement as to make it impractical

to clear Marriott’s sidewalk of ice before Alcala fell. Accordingly, I find no

error in the district court’s refusal to give the continuing-storm

instruction Marriott requested.

      Finding no error in the instructions given by the district court, I

would vacate the decision of the court of appeals and affirm the district

court judgment in Alcala’s favor.

      Wiggins and Appel, JJ., join this concurrence in part and dissent

in part.