Legal Memorandum: City's Immunity from Liability in IA

Issue: May a city be found immune from liability under Iowa Code  668.10(1) when it failed to raise the issue in the lower court?

  The Iowa Code § 668.10(1) provides that a governmental entity cannot be assigned any percentage of fault for failing to “place, erect, or install a stop sign, traffic control device, or other regulatory sign as defined in the uniform manual for traffic control devices adopted pursuant to section 321.252.”  Iowa Code Ann. § 668.10(1) (1998).  When a regulatory device has been set up, however, “the state or municipality may be assigned a percentage of fault for its failure to maintain the device.”  Id.  

The Supreme Court does not consider issues that are raised for the first time on appeal.  Chiavetta v. Iowa Bd. of Nursing, 595 N.W.2d 799, 802 (Iowa 1999).  This principle is closely followed; even constitutional issues cannot be raised for the first time on appeal.  Id.  In Chiavetta, the Iowa Nursing Board argued on appeal that it was not a public accommodation.  The case was before the supreme court after a district court granted the Board’s motion for dismissal.  The court stated, “[a]lthough the question now posed by the defendants is an interesting one, it plainly was not presented to the district court and, accordingly, is not properly before us for review.”  Id. at 802.  See also Foods, Inc. v. Leffler, 240 N.W.2d 914 (Iowa 1976) (defendant cannot assert affirmative defense not pleaded below).

See Lloyd v. State, 251 N.W.2d 551 (Iowa 1977), for the proposition that immunity is from suit, rather than immunity from liability.  However, see […]