author: TERNUS, Justice. CADY, J.

text:
    Richard C. SUMMY and Christine M. Summy, Appellees, v. CITY OF DES MOINES, Iowa, Appellant.
    No. 03-1807.
    Supreme Court of Iowa.
    Jan. 13, 2006.

      Mark Godwin, Deputy City Attorney, Des Moines, for appellant.
    Edward M. (Ted) Spellman and Martin E. Spellman of Spellman, Spellman, Spell-man, Spellman, Kealhofer & Spellman, Perry, for appellees.
   TERNUS, Justice.

The appellee, Richard C. Summy, was seriously injured during a golf outing when he was struck by a golf ball hit by another player. Summy successfully sued the owner of the golf course, appellant City of Des Moines. The City has appealed, alleging several grounds for reversal: (1) the district court, erred when it eliminated all Des Moines property owners from the trial jury; (2) the court erred in submitting the case under the theory the City failed to protect an invitee from the harmful act of a third person rather than under the theory the plaintiff was harmed by a condition on the premises; (3) the court abused its discretion in refusing to instruct the jury on sole proximate cause or to allow the defendant to discuss this concept in opening statement; and (4) the court erred in failing to direct a verdict on the grounds the City was immune from liability and the City owed the plaintiff no individual duty to protect him from the ordinary risks inherent in the game of golf. Upon our review of the record and consideration of the arguments of the parties, we affirm.

I. Background Facts and Proceedings.

On June 5, 2000, Summy was playing golf at the City-owned Waveland Golf Course when he was struck in the eye with a golf ball. Summy was on the eighteenth fairway at the time. The ball was hit from the tee on the first hole by another golfer, Richard Thomas. Summy sued the City, alleging it

had designed, operated, and maintained the Waveland Golf Course in an unreasonably dangerous condition in that a golfer engaging in golfing activities on the 18th golf hole was at unreasonable risk of being struck by a golf ball struck by a golfer from the tee box of the first hole of the golf course.

The plaintiff alleged a number of specific ways in which the City was negligent. The City answered, raising several affirmative defenses, including comparative fault, sole proximate cause, and immunity under Iowa Code chapter 670 (1999).

Subsequently, the City filed a motion for summary judgment on the basis of the immunity granted in section 670.4(10) for liability based on the “issuance of a permit, inspection, investigation, or otherwise ... if the damage is caused by a third party.” Iowa Code § 670.4(10). The City also asserted that it owed Summy no duty to protect him from the “ordinary and ever present risks of the sport of golf.” Relying on the duty imposed on possessors of land by Restatement (Second) of Torts section 344 (1965), the district court rejected the City’s argument that it owed no duty to the plaintiff. The court also concluded the statutory immunity asserted by the City was not applicable.

Prior to trial, the plaintiff filed a motion to limit prospective jurors to nonresidents of the City of Des Moines in view of his severe injury and the potential for a high verdict against the City. Although the court denied the plaintiffs request to remove all residents of the City from the jury panel, the court ruled that property owners in the City would be excused from the panel. Immediately before trial, the City challenged the jury panel, arguing the removal of “all jurors who were property owners in the City of Des Moines” was “a material departure from the statutory requirements for drawing or returning a jury.” This challenge was rejected by the trial court.

The plaintiff also filed a motion in limine before trial asking the court to prohibit the defendant from mentioning or arguing that the actions or failure to act of the other golfer — Thomas—constituted a proximate cause of the plaintiffs injuries. The court agreed that the other golfer’s negligence was not at issue, noting that Thomas was not a party to the lawsuit and sole proximate cause would not be an issue in the case.

At trial Summy introduced evidence that the design of the golf course called for a tree barrier between the first and eighteenth fairways. Although such a barrier had existed at one time, sixty to eighty mature trees in the area between these fairways died in the 1960s. In June 2000, there were a few small trees between the first and eighteenth fairways, but according to the plaintiffs witnesses these trees were not a sufficient protective barrier. Even one of the City’s witnesses acknowledged there was a hazard in the area of fairway eighteen from being hit by a shot off tee number one. Summ/s experts testified that the two fairways had overlapping areas of play and that it was absolutely foreseeable that golf balls hit from the first tee would travel into the area where Summy was hit due to the overlapping playing areas and the lack of heavy trees between the fairways. The experts also identified several ways in which the safety in this area could have been improved. In addition, evidence was presented that the City had no inspection or safety program, and no one was responsible for identifying hazards on the course so protective measures could be implemented.

The record also contains evidence in support of the City’s comparative fault defense. At the time Summy was hit by the golf ball, he was twenty feet from the rough in between the eighteenth and first fairways and approximately 150 yards from the white tee box of the number one hole. Summy testified that he saw individuals warming up on the number one tee, but he focused his attention on his golfing partner even though he was aware that a golfer could get hit by balls shot from adjacent fairways. Summy admitted that had he looked toward the number one tee when Thomas was teeing off, he could have seen Thomas swinging his club, as nothing would have blocked Summy’s view. On the other hand, Summy believed that if Thomas had yelled “fore,” there was a possibility that Summy would have had time to react and prevent the injury. Thomas testified that he did not yell “fore” when his shot veered into the eighteenth fairway because he had not noticed anyone in that location.

The City made motions for directed verdict at the proper times, raising the same arguments made in its motion for summary judgment. The trial court refused to grant a directed verdict to the defendant.

The jury found both Summy and the City at fault. Summy was held twenty-five percent at fault, and the City was found seventy-five percent at fault. The trial court entered judgment for the damages found by the jury, reduced by the plaintiffs fault, and the City appealed.

II. Jury Selection.

A. Issue. The City renews its challenge to the trial jury on appeal. The defendant claims the trial court ignored two statutory edicts and a rule of civil procedure when it excused Des Moines property owners from the jury panel. See Iowa Code § 607A.3(7) (defining “panel” as “those jurors drawn or assigned for service to a courtroom, judge, or trial”). The City relies on Iowa Code section 624.11A, which specifies the circumstances under which a juror may be challenged based on the juror’s taxpayer status, and on Iowa Code section 607A.2, which prohibits the exclusion of persons from jury service based on the person’s “age if the person is eighteen years of age or older, race, creed, color, sex, national origin, religion, economic status, physical disability, or occupation.” (Emphasis added.) Finally, the defendant argues Iowa Rule of Civil Procedure 1.915(6) sets forth the reasons that a party may challenge a potential juror for cause and none of those reasons include potential bias or prejudice.

B. Error preservation. Because the plaintiff insists the defendant did not preserve error on its challenge to the court’s action in striking property owners from the jury panel, our analysis begins with rule 1.915(4), which states:

Before any juror is sworn, either party may challenge the panel, in writing, distinctly specifying the grounds, which can be founded only on a material departure from the statutory requirements for drawing or returning the jury.

Iowa R. Civ. P. 1.915(4). The plaintiff claims the defendant failed to comply with this rule in two particulars: (1) the City’s written objection was not filed until after the jury had been selected, although an oral objection had been made immediately before trial; and (2) the City’s motion did not identify the two statutes that the City now claims prohibited the exclusion of Des Moines property owners from the jury panel.

We think rule 1.915(4) does not apply to the City’s objections. That rule states a challenge to the panel “can be founded only on a material departure from the requirements for drawing or returning the jury.” Iowa R. Civ. P. 1.915(4) (emphasis added). The term “drawing” refers to the procedure incident to the “actual drawing of names of eligible jurors” from, for example, a jury wheel, and the term “returning” refers to the procedure followed to summon into court the jurors drawn. See People v. Hetenyi, 36 Misc.2d 518, 235 N.Y.S.2d 164, 166 (N.Y.County Ct.1949) (interpreting similar New York rule). See generally Iowa Code ch. 607A (outlining procedures for drawing and returning a jury). The City has not claimed noncompliance with the procedural requirements set forth in chapter 607A for drawing and returning the jury. Cf. State v. Morgan, 559 N.W.2d 603, 610 (Iowa 1997) (defendant contended the method by which the jury list was compiled failed to follow the “random selection” requirement of section 607A.10); State v. Lohr, 266 N.W.2d 1, 2 (Iowa 1978) (defendant claimed noneomplianee with statutorily prescribed procedure for drawing of list from which defendant’s trial jury was ultimately chosen). Rather, the defendant’s challenge is to the method of selecting the trial jury, namely, granting the plaintiffs challenge for cause to all city property owners. Consequently, the special requirement of a writing distinctly specifying the grounds for an objection to the drawing and returning of the jury panel does not apply.

The City’s objection was clearly sufficient under our regular error preservation rules, which require a party to alert the district court “to an issue at a time when corrective action can be taken.” Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000). Immediately prior to trial, the defendant objected to the court’s exclusion of Des Moines property owners from the jury panel. This objection was sufficient to alert the court to the error that the defendant now raises on appeal at a time when the court could have corrected its prior ruling. Certainly it would have been helpful to the trial court had the City provided that court with the same legal authorities in support of its position that it has brought to the attention of this court on appeal. Error preservation does not turn, however, on the thoroughness of counsel’s research and briefing so long as the nature of the error has been timely brought to the attention of the district court.

C. Merits. Having determined that error was preserved, we now consider whether the trial court erred in excusing all Des Moines property owners from the jury panel. We conclude it did.

Prior to 1984, this court had routinely held that “when an action in tort is brought against a municipality ... [the] plaintiff may ... effectively challenge any members of the jury panel who are taxpayers in the defendant municipality.” Beyer v. City of Dubuque, 258 Iowa 476, 486, 139 N.W.2d 428, 435 (1966); accord Lang v. City of Des Moines, 294 N.W.2d 557, 564 (Iowa 1980) (declining “to retreat from past approval of the exclusion of property taxpayers from juries deciding civil actions in which their cities are named defendants”); Alber v. City of Dubuque, 251 Iowa 354, 363, 101 N.W.2d 185, 190 (1960) (“Throughout the history of the state it has been customary that where a claim for damages is made against a city, property owners in the city are disqualified as jurors.”). But in 1984 the Iowa legislature enacted Iowa Code section 624.11A, which reads:

When selecting a jury in a trial in which a municipality is a defendant, a juror challenge based on the potential juror’s status as a taxpayer of that municipality shall not be allowed unless a real, substantial, and immediate interest is shown which would unfairly prejudice the plaintiff.

Iowa Code § 624.11A (emphasis added).

The plaintiff argues this provision merely codified the longstanding body of Iowa case law that allowed a challenge to a juror based upon taxpayer status. He claims he made the required showing of a “real, substantial, and immediate interest ... which would unfairly prejudice the plaintiff’ due to the severe nature of his injury — the loss of his eye. Summy contends that because a significant verdict was likely and because such a verdict would result in substantially higher taxes, all Des Moines property owners would have a personal interest adverse to the plaintiff. The City responds that the point of the statute was to require a demonstration of bias on the part of each juror sought to be excluded. We agree. The legislature, rather than codifying existing case law, rejected that law by clearly stating that such challenges were not permitted, unless certain requirements were met.

In this case, the court failed to follow section 624.11A because it did not require the plaintiff to show a real, substantial, and immediate interest of the rejected jurors, but rather excused all city property owners from the trial jury based simply on their status as taxpayers. This error in applying section 624.11A was an abuse of discretion. See Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000) (“An abuse of discretion occurs when ‘the court exercise[s][its] discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.’ A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” (Citation omitted.)). We now turn to the question of prejudice.

D. Prejudice. Prejudice from the erroneous exclusion of a juror will not be presumed. See Alber, 251 Iowa at 363, 101 N.W.2d at 190 (refusing to reverse based on trial court’s disqualification of property owners from jury based, in part, on objecting party’s failure to show prejudice); cf. State v. Hartsfield, 681 N.W.2d 626, 633 (Iowa 2004) (“Instructional error is not reversible error unless there is prejudice.”); Bauer v. Cole, 467 N.W.2d 221, 225 (Iowa 1991) (stating erroneous eviden-tiary ruling “is not reversible error in the absence of prejudice”). Rather, a party claiming prejudice must establish that the resulting jury was not impartial and competent. See Johnson v. City of Waterloo, 140 Iowa 670, 672, 119 N.W. 70, 71 (1909); accord 47 Am.Jur.2d Jury § 185, at 868-69 (1995). As this court explained in Johnson,

The defendant had no right to a trial before any particular juror or jury. All it could insist upon was a competent and impartial jury, and, as the record does not affirmatively show that it exhausted the peremptory challenges to which it was entitled, the jurors before whom the cause was tried are presumed to have been acceptable to it. The erroneous overruling of a challenge for cause may result in the retention of an objectionable juror. But this will, rarely, if ever, happen because of the rejection of a competent juror .... In states, where, as in this, the right to trial before any particular juror or jury is denied, the ruling by which a juror is excused without good cause is not renewable on appeal, unless it also is made to appear from the record that this has resulted in the trial of issues before a partial or incompetent jury. The theory of these decisions is that, though a qualified juror be excused, another equally competent and fair minded will be selected in his stead, and, if a competent and impartial jury is finally secured before whom the cause is tried, neither party is in a situation to complain.

140 Iowa at 671-72, 119 N.W. at 71 (citations omitted). This court concluded in Johnson that the trial court’s erroneous exclusion of resident taxpayers from the jury panel did not result in prejudice because there was no showing the resulting jury was not impartial. Id.

The same result is warranted here. The City has not demonstrated, nor even claimed, that the trial court’s error forced the City to leave an objectionable juror on the jury. In the absence of such a showing, we cannot find prejudice. Therefore, the trial court’s exclusion of Des Moines property owners from the jury, while an abuse of discretion, did not result in reversible error.

III. Jury Instructions on Liability Theory.

The defendant objected to the court’s instruction based on section 344 of the Restatement (Second) of Torts, concerning liability for a failure to prevent harm caused by a third party. The City contended the jury should have been instructed on the premises liability theory contained in the Iowa State Bar Association’s Civil Jury Instructions Nos. 900.1 and 900.5, which are based on Restatement (Second) of Torts sections 343 and 343A. These latter Restatement provisions address liability for harm caused by conditions on the land. The City’s argument is essentially that the plaintiff pled and sought to prove a section 343 or section 343A case because he and his experts criticized the condition of the golf course, yet the court instructed under a theory the defendant had failed to protect the plaintiff from the wrongful conduct of a third party.

We review a claim that the court gave an instruction that was not supported by the evidence for correction of errors of law. See State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003). We review the related claim that the trial court should have given the defendant’s requested instructions for an abuse of discretion. See Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005). “Under Iowa law, a court is reqúired to give a requested instruction when it states a correct rule of law having application to the facts of the case and when the concept is not otherwise embodied in other instructions.” Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000) (emphasis added).

For the reasons that follow, we think the court correctly instructed the jury on the duty set forth in section 344. As we also explain, sections 343 and 343A have no application to the facts of this case, so the court did not abuse its discretion in refusing to instruct on those theories.

Section 344 of the Restatement provides:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Restatement (Second) of Torts § 344 (emphasis added). In contrast, section 343 concerns the liability of a possessor of land “for physical harm caused to his invitees by a condition on the land ” if the possessor

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(e) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts § 343 (emphasis added). Section 343A sets forth specific rules governing “physical harm caused to [invitees] by any activity or condition on the land whose danger is known or obvious to them.” Restatement (Second) of Torts § 343A. As the wording of these provisions indicates, section 344 generally applies to injuries caused by third parties, whereas section 343 governs injuries caused by a condition on the land, and section 343A governs injuries caused by an activity or condition on the land. See Young v. Gregg, 480 N.W.2d 75, 78-79 (Iowa 1992) (distinguishing Restatement premises liability theories based on direct cause of injury); see also Morgan v. Perlowski, 508 N.W.2d 724, 727 (Iowa 1993) (refusing to apply principles governing liability of possessor of land for harm caused by conditions or activities on the land in case involving landowner’s failure to protect guest from harm by another guest).

A review of the record shows the gist of the plaintiffs claim against the defendant was that the City, as owner and operator of the golf course, had a duty to its business invitee, Summy, to exercise reasonable care to protect Summy from physical harm caused by other golfers. The plaintiff introduced evidence that the defendant failed to exercise reasonable care because there were several ways in which golfers could have been protected from other golfers’ errant shots by making changes in the golf course in the area of the first and eighteenth fairways. The plaintiff never claimed that he was injured by a condition on the land, only that the condition of the land was such that it did not protect against injuries caused by third parties.

We think this evidence supports the instruction given by the court since the cause of the plaintiffs injury was the conduct of a third person, against which the plaintiff claimed the defendant could have protected him. The fact that some of the protective steps that could have been taken by the City involved changes to the condition of the premises did not make this a section 343 or section 343A case. All three Restatement provisions address the liability of the possessor of land, so it is not surprising that the conduct of the defendant with respect to its management and care of the premises would be relevant to each of these theories. We conclude, therefore, that the trial court did not err in submitting this case on the theory set forth in section 344, and likewise did not abuse its discretion in refusing to instruct under sections 343 and 343A.

IV. Sole Proximate Cause.

The defendant asserts the trial court abused its discretion (1) in refusing to allow the City to inform the jury in its opening statement that Thomas was the sole proximate cause of the plaintiffs injury, and (2) in refusing to give an instruction on sole proximate cause. We think the trial court correctly concluded that this concept was not applicable in this case.

“Sole proximate cause means the only proximate cause.” Johnson v. Interstate Power Co., 481 N.W.2d 310, 323 (Iowa 1992). It “rests on the notion that some third party or other independent event was the sole cause of the plaintiffs injuries.” Baker v. City of Ottumwa, 560 N.W.2d 578, 583 (Iowa 1997) (emphasis added); accord Sponsler v. Clarke Elec. Coop., Inc., 329 N.W.2d 663, 665 (Iowa 1983) (stating sole proximate cause “introduces an issue of a third party’s conduct or a separate event into the case”); Seide v. State, 875 A.2d 1259, 1270 (R.I.2005) (“ ‘Intervening cause exists when an independent and unforeseeable intervening or secondary act of negligence occurs, after the alleged tortfeasor’s negligence, and that secondary act becomes the sole proximate cause of the plaintiffs injuries.’ ” (Emphasis added and citation omitted.)). In this sense, it is used as an alternative label for superseding cause. See State v. Marti, 290 N.W.2d 570, 585 (Iowa 1980) (stating a finding that an act is an intervening, superseding cause is, in effect, a finding that the act was the sole proximate cause); see also Restatement (Third) of Torts: Liability for Physical Harm § 34 cmt. / (Proposed Final Draft No. 1 2005) (noting “[t]he most common usage of sole proximate cause is as an alternative to superseding cause”). Under the circumstances of this case, the alleged sole proximate cause — Thomas’s negligent act — is also an intervening cause because it is an event that occurred after the defendant’s negligence to actively produce the harm to the plaintiff. See Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 84 (Iowa 2002); see also Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 830 (Iowa 2000) (“ ‘ “Intervening” is used in a time sense; it refers to later events.’ ” (Citation omitted.)).

Whether this intervening cause could be a superseding or sole proximate cause of Summy’s injuries is answered by the following principle of law from the Restatement (Second) of Torts:

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

Restatement (Second) of Torts § 449; see also Weyerhaeuser Co., 620 N.W.2d at 830 (holding foreseeable intervening force is within scope of defendant’s negligence and will not relieve defendant of liability); Rieger v. Jacque, 584 N.W.2d 247, 251-52 (Iowa 1998) (same). Under this rule, the concept of sole proximate cause is incompatible with a theory of liability based on Restatement (Second) of Torts section 344 when the third party who inflicted the harm is alleged to be the sole proximate cause of the plaintiffs injury. That is because section 344 liability is based on the defendant’s failure to protect the plaintiff from the harm caused by the third party, whether the third party was negligent or not. A comment to the Restatement explains:

The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other’s exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.

Restatement (Second) of Torts § 449 cmt. b. A section 344 case falls squarely within the rule stated in section 449, as that rule is explained in this comment.

Turning then to the present case, we note that Thomas’s negligence is one of the hazards against which the City had a duty to use reasonable care to protect the plaintiff. Therefore, Thomas’s act does not prevent the City from being liable for the resulting harm. See Restatement

(Second) of Torts § 449 & cmt. b. Accordingly, Thomas’s intervening act cannot, as a matter of law, be the sole proximate cause of the plaintiffs injury. See Estate of Long, 656 N.W.2d at 85 (affirming trial court’s refusal to instruct on sole proximate cause in case submitted under Restatement (Second) of Torts section 323 (liability based on failure to render service necessary for the protection of another) because the intervening force fell “ ‘squarely within the scope of the original risk’ ” (citation omitted)); see also Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 572 S.E.2d 533, 536 (2002) (“[F]or an intervening act of a third party to become the sole proximate cause of a plaintiffs injuries, the intervening act must not have been ‘foreseeable by defendant....’”); Contois v. Town of West Warwick, 865 A.2d 1019, 1027 (R.I.2004) (same).

For this reason, the trial court did not abuse its discretion by refusing to instruct the jury on the defendant’s sole-proximate-cause defense. See Herbst, 616 N.W.2d at 585 (stating court must give requested instruction only “when it states a correct rule of law having application to the facts of the case” (emphasis added)). Likewise, the court did not abuse its discretion in prohibiting the City from stating in its opening statement that Thomas’s negligence was the sole cause of the plaintiffs injuries. See State v. Miller, 359 N.W.2d 508, 510 (Iowa Ct.App.1984) (stating scope and extent of opening statement rests within discretion of trial court).

Y. Directed Verdict.

The City requested a directed verdict on several grounds, two of which it asserts on appeal were sufficient to warrant a verdict in its favor as a matter of law. We review a trial court’s ruling on a motion for directed verdict for the correction of errors of law. Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 473 (Iowa 2005).

A. Immunity. The defendant moved for a directed verdict on the basis it was immune pursuant to Iowa Code section 670.4(10), which provides for the immunity of a municipality on any claim

based upon an act or omission of an officer or employee of the municipality, whether by issuance of permit, inspection, investigation, or otherwise, and whether the statute, ordinance, or regulation is valid, if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.

Iowa Code § 670.4(10). On the day in question, Thomas was playing on a pass issued to his employer. The City argues the pass is akin to a license or permit and thus within the contemplation of section 670.4(10). Because Thomas was not under the supervision or control of the defendant, the City reasons it is immune under subsection (10) from a claim for damages caused by Thomas.

This court has previously interpreted section 670.4(10) to grant immunity only when the claim against the municipality is based on the issuance of a permit, an inspection, an investigation, or similar municipal action. Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 884 (Iowa 2002). Even if we accept the City’s argument that its action in issuing a golfing pass to Thomas’s employer is similar to the issuance of a permit, we do not think the plaintiffs claim against the City was based on this action by the defendant. The plaintiffs claim does not rest on any negligence by the City in letting Thomas play golf on city property that day. The plaintiffs claim is premised on the City’s failure to protect the plaintiff from the foreseeable hazard of an errant golf shot. This claimed negligence by the City is not remotely similar to the municipal actions encompassed in section 670.4(10). Consequently, the immunity granted in that section does not apply, and the trial court correctly refused to grant a directed verdict on the basis of statutory immunity.

B. Duty. The defendant also based its motion for directed verdict on the assertion it had no duty to Summy to protect him from the ordinary risks inherent in the game of golf. "While section 344 does not make the owner or operator of a golf course an insurer of players’ safety, it does require that the possessor of land exercise reasonable care to protect players from certain risks under specified circumstances. As we have previously discussed, Summy’s lawsuit was based on the City’s failure to take the ordinary precautions a reasonable golf course owner or operator would take. This claim falls within the duty of possessors of land recognized in section 344.

The City also relies on the public duty doctrine: if the government owes a duty to the general public, it has no liability to any one individual when it fails to perform this public duty. See Kolbe v. State, 625 N.W.2d 721, 729 (Iowa 2001). This doctrine is inapplicable here because the City’s duty was one owed to invitees on the golf course, not to the public at large. See id. (stating doctrine does not apply if there is a particular relationship between the governmental entity and the injured plaintiff that gives rise to a special duty). We conclude, therefore, that the trial court did not err in refusing to direct a verdict in favor of the City.

VI. Summary and Disposition.

The district court abused its discretion in excluding property owners in the City of Des Moines from the trial jury without requiring an individualized showing of bias. The defendant did not demonstrate, however, that this error resulted in prejudice. The trial court properly submitted this case to the jury on the basis of the City’s failure to exercise reasonable care to protect invitees from the harmful acts of third parties, as set forth in section 344 of the Restatement (Second) of Torts. In addition, the court correctly determined that the doctrine of sole proximate cause was not applicable. Finally, the trial court did not err in denying the City’s motion for a directed verdict because, contrary to the City’s arguments, the City owed a duty to the plaintiff under section 344, this duty did not fall within the public-duty doctrine, and the City was not immune under section 670.4(10). Finding no reversible error, we affirm.

AFFIRMED.

All justices concur except CADY, J., who dissents, and WIGGINS, J., who takes no part.

CADY, J.

(dissenting).

I respectfully dissent from the conclusion by the majority that the district court’s systematic exclusion of property owners from the jury panel did not constitute reversible error. The majority reached this conclusion by applying the incorrect standard, requiring a showing of prejudice, resulting in a decision that seriously undermines the basic democratic ideals responsible for the strength of, and confidence in, our American jury system.

I acknowledge that courts normally apply the prejudice standard to decide if defects and errors in the jury-selection process will support a reversal of the judgment. This standard, applied by the majority in this case, requires that error in the selection of the jury must be accompanied by a showing of prejudice to the challenging litigant in order to justify a reversal of the judgment. It recognizes the right of each litigant to a fair and impartial jury, and, based upon this right, properly requires a showing that the litigant was deprived of a fair and impartial jury due to the error. In other words, if the jury members ultimately selected were fair and impartial despite the error, then the error in selecting the jury was harmless.

While the landscape of the law is dominated by the primary colors of general principles, subtle shades of exceptions must be observed to fully depict the overall brilliance of the composite of justice. In this case, this essential shading is found in one of the fundamental hues of our American jury system — an impartial jury from a cross-section of the community. See Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181,186-87 (1946). When this pillar is systematically removed by those charged with the responsibility to oversee the jury-selection process, the injury and prejudice to an individual litigant is replaced by a greater injury not only to the jury system itself, but “to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.” Id. at 195, 67 S.Ct. at 265, 91 L.Ed. at 187. “The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection.” Id.

Such action by the court “ ‘destroy[s] the basic democracy and classlessness of jury personnel,’ ” fails to give a litigant “ ‘the type of jury to which the law entitles him,’” and deprives litigants “‘a right which the lawmakers have not seen fit to withhold.’ ” Id. (quoting United States v. Roemig, 52 F.Supp. 857, 862 (N.D.Iowa 1943)). The gist of the problem was sue-cinctly stated by the United States Supreme Court in Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946):

The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury

Thiel, 328 U.S. at 220, 66 S.Ct. at 985-86, 90 L.Ed. at 1184-85 (citations omitted).

Our legislature has established those groups of individuals who are eligible for jury service, and it has even specifically provided that any challenge to a potential juror’s status as a taxpayer must be made during voir dire based upon a specific finding of unfair prejudice. Iowa Code § 624.11A. It is not the role of courts to depart from this legislative standard and systematically remove groups from the community that our legislature has seen fit to include. That is a clear abuse of judicial authority, inflicted on a critical component of our system of justice, and it requires that we look beyond the general rule to draw out an exception that “reversible error does not depend on a showing of prejudice in an individual case.” Ballard, 329 U.S. at 195, 67 S.Ct. at 265, 91 L.Ed. at 186 (footnote omitted).

The rule that should be applied in Iowa to claims of error in the selection of a jury is that such error will not result in a reversal of the judgment unless either individual prejudice is shown or there has been intentional and systematic exclusion of a group of jurors. This is the rule followed by the United States Supreme Court, as well as many state courts. See id.; see, e.g., Alvarado v. State, 486 P.2d 891, 899 n. 20 (Alaska 1971) (no showing of individual prejudice required); People v. Bell, 49 Cal.3d 502, 262 Cal.Rptr. 1, 778 P.2d 129, 137 n. 4 (1989) (“A criminal defendant who asserts a systematic exclusion of a cognizable class of prospective jurors in a pretrial challenge to the jury venire or panel need not show that his trial jury was underrepresentative.”); Wilkins v. State, 96 Nev. 367, 609 P.2d 309, 311 (1980) (“[Ajbsent either a showing of systematic, class-based exclusion of prospective jurors or a showing of prejudice, an irregularity in the selection of jurors, without more, must be deemed harmless error.” (Emphasis added.)); State v. Strodes, 48 Ohio St.2d 113, 357 N.E.2d 375, 377-78 (1976) (“Unless prejudice to the defendant or the systematic and intentional exclusion of a group is shown, we will not reverse a judgment because of minor and technical defects in jury-selection procedures.” (Emphasis added.)), vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978).

The majority rejects this approach essentially on two grounds. First, it finds the no-prejudice rule inapposite to this case because the error here occurred after the jury panel was returned. This, of course, is a distinction without a difference. When a judge acts to remove a class of jurors from the jury panel, what possible difference would it make to the ideals we are trying to observe if the illegal action was done before, during, or after the drawing and returning of the jury? In each instance, the evil inflicted is the same, and it is equally abhorrent to our democratic ideals of a jury trial. In each instance, the prejudice is the same. In each instance, prejudice is inherent in the illegal act of preventing a party from selecting a jury from a panel composed of a representative class of people.

Second, the majority relies on two of our prior cases in which we previously indicated that prejudice will not be presumed. See Alber v. City of Dubuque, 251 Iowa 354, 363, 101 N.W.2d 185, 191 (1960); Johnson v. City of Waterloo, 140 Iowa 670, 671, 119 N.W. 70, 71 (1909). Yet, these cases only express a general rule, and there is no indication we have ever considered the question from the perspective expressed in Ballard and Thiel. Additionally, the court in Alber applied the prejudice standard only after finding that it was a custom in this State to exclude taxpayers in tort cases against a city; it was in the best interest of the taxpayer jurors to exclude them; and the decision to exclude jurors was within the discretion of the trial court. See Alber, 251 Iowa at 363, 101 N.W.2d at 190. Thus, these cases have no significance today because there is now a statute governing the matter, and the discussion of prejudice was not subject to the scrutiny of the institutional injury.

If we truly embrace our jury system in this State, we should be willing, indeed quick, to implement rules to protect and preserve those fundamental concepts responsible for its historical success. Instead, the prejudice standard adopted in this case literally means no litigant could get relief from the illegal acts of a judge who systematically excludes a class of people from the jury as long as the jurors ultimately selected to serve on the jury were found to be fair and impartial. Yet, our rules must not just strive to achieve fairness and impartiality in the individual jurors selected. Under the majority’s rule, a judge could systematically exclude all women from the jury as long as the men selected would be fair and impartial. This is a barbaric concept, which the prejudice standard was never intended to sanction. A litigant is entitled to a fair and impartial jury selected from a representative class as determined by our legislature, and the loss of this fundamental principle through the improper actions of a trial judge and the implementation of an overly strict appellate standard can only lead to the erosion of the jury system.

I would hold that the trial court error in this case requires a new trial without any showing of prejudice to the City.

      . Summy's wife is also a plaintiff, but we refer to Summy alone for simplicity’s sake.

      . The record does not show how the court’s ruling was implemented. Consequently, we do not know that the ruling actually caused any juror to be rejected.

      . Having concluded the trial court abused its discretion in excusing property owners from the trial jury, we need not consider the other grounds upon which the City challenged the court's action.

      .Because the error in this case occurred after the drawing and returning of the jury, as we decided in addressing the plaintiff’s error-preservation argument, cases that hold no prejudice need be shown when the court inappropriately exercises its supervisory authority over the jury process are inapposite.

      . The City expends considerable effort in its brief detailing the evidence of Thomas's negligence, concluding this evidence supports a sole-proximate-cause instruction. But proof that a third party’s negligence was a proximate cause of the plaintiff's injury does not warrant submitting the defense of sole proximate cause. There must be evidence from which it may be concluded that the third party's negligence was a superseding cause of the harm so as to make it the sole proximate cause of the harm.

      . There apparently was little dispute in this case that Thomas was negligent. Even though section 344 encompasses "physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons,” see Restatement (Second) of Torts § 344, the court’s instruction stated the owner or operator of a golf course had "the obligation to exercise reasonable care to prevent injuries caused by the negligence of third persons.” (Emphasis added.)


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    Wanda Jean SPIKER and James Lee Spiker, Appellants, v. Sherry Lynn SPIKER and Kelly Keith Spiker, Appellees.
    No. 04-1182.
    Supreme Court of Iowa.
    Jan. 20, 2006.

      Scot L. Bauermeister of Fitzgibbons Law Firm, Estherville, for appellants.
    Michael J. Houchins of Zenor, Houchins & Borth, Spencer, for appellees.
   CADY, Justice.

The issue in this case is whether a custodial parent can modify a grandparent visitation order on the ground that the applicable provision of the grandparent visitation statute, upon which the order was based, was subsequently found unconstitutional. The district court determined the visitation order was subject to modification, and it terminated the visitation. We agree and affirm the judgment of the district court.

I. Background Facts and Proceedings

Jim and Wanda Spiker are the grandparents of Paige and James Spiker. Paige and James are the children of Kelly Spik-er, Wanda and James’s son, and Sherry Spiker. Sherry and Kelly were divorced on August 16, 1999. Sherry was designated the primary physical caretaker of the children, and Kelly was allowed visitation.

On February 5, 2001, Wanda and Jim filed a petition for grandparent visitation under Iowa Code section 598.35 (2001). They filed the petition after Kelly stopped visiting the children in January 2000, and Sherry stopped allowing the children to visit them. On August 21, in the course of the litigation, Wanda, Jim, and Sherry entered into a stipulation agreement providing that Wanda and Jim would be allowed visitation with the children and that they would provide transportation of the children to and from visits. However, they could not agree as to the length or time of the visitation, so they left that issue for the court to decide. Following a hearing, the court granted Wanda and Jim visitation with the children on the first weekend of every month beginning September 2001. Sherry did not appeal.

Visitation occurred as ordered for almost a year when Sherry began withholding Paige from visits. By 2004, Sherry refused to allow Wanda and Jim to visit either Paige or James.

On February 19, 2004, Wanda and Jim initiated contempt proceedings against Sherry for refusing to allow visitation with the children. The court entered an order for Sherry to show cause why she should not be held in contempt. Sherry responded that her refusal to allow visitation was “due to good cause for the children’s best interest.” She also asserted that the grandparent visitation statute was unconstitutional and that enforcement of the visitation order would violate her due process rights.

The court held a hearing on the issue of Sherry’s contempt on March 22, 2004. It issued an order on March 25 finding Sherry in contempt of court. The court reasoned that Sherry should have challenged the constitutionality of the visitation order at or before trial, not as a defense in contempt proceedings. See Walker v. City of Birmingham, 388 U.S. 307, 317-21, 87 S.Ct. 1824, 1830-32, 18 L.Ed.2d 1210, 1217-20 (1967) (holding the way to challenge an unconstitutional ordinance and injunction issued under it was to apply to have injunction modified or dissolved, not to violate the injunction and assert its unconstitutionality as a defense in contempt proceedings; stating “respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom”). Instead of sentencing Sherry to jail time for contempt, the court awarded Wanda and Jim an additional seven days of visitation with the children in June 2004. See Iowa Code § 598.23(2)(6) (“The court may, as an alternative to punishment for contempt, make an order which ... [m]od-ifies visitation to compensate for lost visitation time.... ”).

Sherry filed a motion to enlarge or amend under rule 1.904(2), again arguing that enforcement of the visitation order would violate her due process right to raise her children without undue interference by the State. She contended that the order could not be enforced absent a finding that she was an unfit mother. She further argued that the stipulation agreement she entered into with Wanda and Jim was unenforceable and did not validly waive her constitutional rights. The court denied the motion. Sherry did not appeal.

On April 27, 2004, Sherry filed a petition to modify, vacate, or stay the visitation order, again arguing that the decree was unconstitutional. After Wanda and Jim filed their answer, Sherry moved for summary judgment, and Wanda and Jim resisted. On June 29, 2004, the court granted Sherry’s motion for summary judgment and vacated the visitation order. Wanda and Jim appeal.

II. Standards of Review

“[Challenges to Iowa’s grandparent visitation statute raise ‘questions of substantive due process and liberty interests in the context of statutory interpretation’ obliging us ‘to review the record de novo, making our own evaluation of the totality of the circumstances.’ ” In re Marriage of Howard, 661 N.W.2d 183, 187 (Iowa 2003) (quoting Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001)). “Substantive due process ‘“provides heightened protection against government interference with certain fundamental rights and liberty interests.” ’ ” Sanchez v. State, 692 N.W.2d 812, 819 (Iowa 2005) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000)). We apply strict scrutiny when a fundamental liberty interest is at issue. Id. at 819-20 (citing Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993)). We have held that “the parental caretaking interest,” or the right to direct the upbringing of one’s children, is fundamental. Id. (citing Santi 633 N.W.2d at 317). Therefore, state action infringing on that interest must be narrowly tailored to serve a compelling state interest. Id. (citing Santi, 633 N.W.2d at 318). We have already held that the provision of the grandparent visitation statute at issue in this case, section 598.35(1), is not narrowly tailored to serve a compelling state interest and is unconstitutional on its face. In re Marriage of Howard, 661 N.W.2d 183, 185, 192 (Iowa 2003). The only question is whether this holding allows Sherry to modify a grandparent visitation order from which she did not appeal.

III. Discussion

A. Res Judicata

Wanda and Jim first argue that Sherry is barred from challenging the constitutionality of the visitation order under the doctrine of res judicata. They claim Sherry should have appealed the August 21, 2001 decree granting visitation if she wanted to challenge it as unconstitutional. This argument is supported by several general principles governing res judicata, and was recently adopted by the Arkansas Supreme Court in Hunt v. Perry, 355 Ark. 303, 138 S.W.3d 656 (2003).

In Hunt v. Perry, a grandmother sought visitation of her grandchildren from their father, her former son-in-law. Hunt, 138 S.W.3d at 657. The father argued the Arkansas Grandparent Visitation Act was unconstitutional, relying on the Supreme Court’s Troxel decision. Id. at 658. The district court found the statute was constitutional and granted the grandmother visitation. Id. The father did not appeal this order. Id. A short time later, the Arkansas Supreme Court held the grandparent visitation statute was unconstitutional, and the father sought to terminate the grandmother’s visitation. Id. The district court held the father was barred under res judi-cata from relitigating the constitutionality of the statute. Id. at 659. On appeal, the supreme court agreed:

[T]he fact that he failed to pursue an appeal now prevents him from challenging the trial court’s previous order finding the statute constitutional. In sum, because we have a case that involves the same parties, the same issue, and has already been decided by a court of competent jurisdiction, the doctrine of res judicata is applicable.

Id. at 662; see also Ingram v. Knippers, 72 P.3d 17, 21-22 (Okla.2003) (holding mother could not relitigate constitutionality of grandparent visitation statute in action to terminate visitation order when she could have, but did not, raise the issue in an appeal of the initial order). But see In re T.J.K., 62 S.W.3d 830, 832 (Tex.Ct.App. 2001) (“If Troxel truly does make [the grandparent visitation statute] unconstitutional, then maintaining an order granting grandparent access would be inappropriate because it would violate [the parent’s] Fourteenth Amendment rights under the United States Constitution. The order granting grandparent visitation is subject to modification by the trial court.”).

In deciding whether to follow this holding, we must determine whether the Hunt decision is consistent with our prior law concerning res judicata. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974) (“[W]e have no obligation to adopt a rule just because it has generally been adopted elsewhere. Although cases from other states may be persuasive authority, they have no greater cogency than the reasoning by which they were decided.”). We therefore turn to consider that body of law.

“The doctrine of res judicata embraces the concepts of claim preclusion and issue preclusion.” Colvin v. Story County Bd. of Review, 653 N.W.2d 345, 348 (Iowa 2002) (citing Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 516 (Iowa 1998)); accord 18 Charles Alan Wright et al., Federal Practice and Procedure § 4402, at 7 (2d ed.2002) [hereinafter Wright]. Wanda and Jim must necessarily rely on claim preclusion in this case, rather than issue preclusion, because issue preclusion requires the issue to have been actually litigated, and the constitutionality of the grandparent visitation statute was not actually litigated before the initial visitation order was entered. See Restatement (Second) Judgments § 27, at 250 (1982) (“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” (Emphasis added.)).

Our law concerning claim preclusion is well established:

The general rule of claim preclusion provides a valid and final judgment on a claim precludes a second action on that claim or any part of it. The rule applies not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also as to any other admissible matter which could have been offered for that purpose. Claim preclusion, as opposed to issue preclusion, may foreclose litigation of matters that have never been litigated. It does not, however, apply unless the party against whom preclusion is asserted had a “full and fair opportunity” to litigate the claim or issue in the first action. A second claim is likely to be barred by claim preclusion where the “acts complained of, and the recovery demanded are the same or where the same evidence will support both actions.” A plaintiff is not entitled to a second day in court by alleging a new ground of recovery for the same wrong.

Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315, 319 (Iowa 2002) (citations omitted; emphasis added). Thus, the party seeking to invoke the doctrine of claim preclusion must establish three elements: (1) “the parties in the first and second action were the same;” (2) “the claim in the second suit could have been fully and fairly adjudicated in the prior case;” and (3) “there was a final judgment on the merits in the first action.” Id.; accord 18 Wright § 4405, at 83.

The first element of claim preclusion is beyond dispute. Clearly, the parties in the first action (Wanda and Jim’s petition for grandparent visitation) and in the second action (Sherry’s petition to modify, vacate, or stay the visitation order) are the same.

The second element is also fairly straightforward. Again, the issue is whether Sherry could have attacked the constitutionality of the grandparent visitation statute in the first action. See Ame-vik, 642 N.W.2d at 319 (listing second element as “the claim in the second suit could have been fully and fairly adjudicated in the prior case”). The general rule is that “[w]hen a valid and final personal judgment is rendered in favor of the plaintiff, ... the defendant cannot avail himself of the defenses he might have interposed, or did interpose, in the first action,” in a subsequent action. Restatement (Second) of Judgments § 18, at 151-52; see In re Estate of Boyd, 634 N.W.2d 630, 637-38 (Iowa 2001) (when party did not raise defense to claim, final judgment was issued, and party did not appeal, party could not collaterally attack the judgment); Robbins v. Daniel, 226 Iowa 678, 690, 284 N.W. 793, 798 (1939) (when party did not assert affirmative defense, res judicata barred raising the issue in later suit); see also Shin v. Portals Confederation Corp., 728 A.2d 615, 619 (D.C.1999) (where party could have raised fraudulent misrepresentation as defense in first action, he could not bring a later action for fraudulent misrepresentation because of res judicata); J.C. v. Adoption of Minor Child Named Herein, 797 So.2d 209, 212 (Miss.2001) (‘“[T]he doctrine of res judicata bars litigation in a second lawsuit on the same cause of action “of all grounds for, or defenses to, recovery that were available to the parties [in the first action], regardless of whether they were asserted or determined in the prior proceeding.” ’ ” (quoting Key v. Wise, 629 F.2d 1049, 1063 (5th Cir.1980)) (emphasis added)); Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex.1999) (res judicata bars “claims or defenses that, through diligence, should have been litigated in the prior suit but were not” (emphasis added)). Sherry points to no reason, and we can conceive of none, why she could not have challenged the constitutionality of our grandparent visitation statute when Wanda and Jim initially sought visitation under it. The constitutionality of the statute could have been fairly and fully litigated in that action. Amevik, 642 N.W.2d at 319.

The final element of claim preclusion is that “there was a final judgment on the merits in the first action.” Id.; see also Restatement (Second) of Judgments § 13, at 132 (“The rules of res judicata are applicable only when a final judgment is rendered.”). Whether the initial visitation order was a “final” judgment is the fighting issue in this case. Sherry contends that res judicata does not apply to orders concerning custody and visitation and that the court always has jurisdiction to modify such a decree.

There is no specific statutory authority for courts to modify grandparent visitation decrees. See Iowa Code § 598.35; id. § 598.41; see also id. § 600B.31 (stating courts in paternity actions have continuing jurisdiction in paternity actions “to determine the custody in accordance with the best interests of the child”). Nevertheless, the initial grandparent visitation order in this case was a judgment granting continuing relief. See Restatement (Second) of Judgments § 13 cmt. c, at 133 (“A judgment concluding an action is not deprived of finality for purposes of res judicata by reason of the fact that it grants or denies continuing relief, that is, requires the defendant, or holds that the defendant may not be required, to perform acts over a period of time. Judgments of these types are rendered typically in actions for ... child support and custody.”)- When judgments concerning continuing relief are involved and

a change of circumstances makes the judgment too burdensome or otherwise inapposite as a regulation of ongoing conduct, it is ordinarily possible for the party concerned to apply to the rendering court for a modification of the terms of the judgment.

Restatement (Second) of Judgments § 18 cmt. c, at 133; see also id. § 73, at 197 (“Subject to the limitations stated in § 74, a judgment may be set aside or modified if: (1) The judgment was subject to modification by its own terms or by applicable law, and events have occurred subsequent to the judgment that warrant modification of the contemplated kind; or (2) There has been such a substantial change in the circumstances that giving continued effect to the judgment is unjust.”); cf. In re Marriage of McCurnin, 681 N.W.2d 322, 329 (Iowa 2004) (stating divorce decree setting child support obligation, which parties did not appeal, was res judicata “until a modification changed its provisions” (citing In re Bisenius, 573 N.W.2d 258, 260 (Iowa 1998))); Iowa Code § 598.21(8) (requiring a “substantial change in circumstances” to modify orders under section 598.21). But see Restatement (Second) of Judgments § 74, at 202 (“Except with regard to judgments referred to in §§ 65-66 [invalid default judgments] and 69 [lack of subject matter jurisdiction], relief from a judgment will be denied if: (1) The person seeking relief failed to exercise reasonable diligence in discovering the ground for relief, or after such discovery was unreasonably dilatory in seeking relief; or (2) The application for relief is barred by lapse of time; or (3) Granting the relief will inequitably disturb an interest of reliance on the judgment. When such an interest can be adequately protected by giving the applicant limited or conditional relief, the relief will be shaped accordingly.”). This is consistent with our general view that courts have inherent authority to modify decrees concerning custody and visitation of children based on a substantial change in circumstances. See Hobson v. Hobson, 248 N.W.2d 137, 139-40 (Iowa 1976).

In order to determine whether an order granting continuing relief has preclusive effect in a later action (i.e., is a “final judgment” for res judicata purposes), we ask “whether the issues in the two actions are materially different because of events which occurred in the interim, in which case preclusion is to be denied.” Restatement ■ (Second) of Judgments § 13 cmt. c, at 134. In other words, the first judgment does not have a preclu-sive effect in the second action if circumstances have changed sufficiently to warrant -modifying the decree. Wade v. Hirschman, 903 So.2d 928, 933 (Fla.2Q05) (“To modify such judgments, the trial court must decide whether there is a ‘factual basis sufficient to show that conditions have become materially altered since the entry of the previous decree.’ The degree of change in the conditions and circumstances since the date of the previous decree must be of a substantial character.” (Citations omitted.)); In re Marriage of McCurnin, 681 N.W.2d at 329 (“Jennifer did not appeal following the entry of the decree. The decree was therefore res ju-dicata as to what was to be considered in calculating David’s child support obligation until a modification changed its provisions.” (Citation omitted.)). This relaxation of the res judicata standard in child custody cases is required because our goal in such cases is always to serve the best interests of the child, which may require court supervision and modification throughout the child’s minority. See In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997) (primary consideration in child custody cases is the best interests of the children (citing In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Guardianship of Knell, 537 N.W.2d 778, 780 (Iowa 1995))); accord Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841, 850 (2002) (“[CJustody orders are subject to modification in order to respond to changed circumstances and the best interest of the child.”). This standard mirrors the general standard for modification of custody provisions of a dissolution decree. See Hobson, 248 N.W.2d at 139-40.

Ultimately then, the case turns on whether Sherry established a substantial change in circumstances warranting modification of the initial grandparent visitation order. In her petition to modify, the only change in circumstances Sherry alleged was that we had held some provisions of the grandparent visitation statute unconstitutional in recent years. See Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003) (section 598.35(3)); In re Marriage of Howard, 661 N.W.2d at 185 (section 598.35(1)); Santi, 633 N.W.2d at 314 (section 598.35(7)). We must determine whether this is a sufficient change in circumstances.

We have held that “[t]he res judicata consequences of a final unappealed judgment are not altered by the fact that the judgment may have rested on incorrect legal principles.” In re Bisenius, 573 N.W.2d at 260 (citing Gail v. W. Convenience Stores, 434 N.W.2d 862, 863 (Iowa 1989); Mahaffa v. Mahaffa, 230 Iowa 679, 683-84, 298 NW, 916, 919 (1941)). However, we have also held that a change in the law occurring after the original judgment constituted a substantial change in circumstances justifying modification. See In re Marriage of Feustel, 467 N.W.2d 261, 265 (Iowa 1991) (holding change in federal tax law under which father was no longer allowed to claim children as dependents constituted substantial change in circumstances). The Restatement also contains conflicting statements on the issue. On one hand, it says it would be “a very unsound policy” to deny preclusion when “a subsequent judicial decision changes the law that was applied in reaching an earlier judgment.” Restatement (Second) of Judgments § 73 cmt. c, illus. 4, at 200. “On the other hand,” says the Restate-rhent, “when a change of law occurs following a judgment regulating future conduct, that may be a circumstance justifying relief from the judgment.” Id. Moreover, the general Restatement rule states that a change in the law would not prevent the application of res judicata. See Restatement (Second) of Judgments § 18 cmt. b, at 153 (“The fact that the judgment was based on error does not preclude the defendant from setting the judgment up as a defense to an action on the original claim. If it was erroneous, the plaintiff might have taken steps to have it set aside or reversed in the original proceeding.”). However, there is an exception to the general rule. Restatement (Second) of Judgments § 26(1), at 233-34. Claim preclusion does not apply when “[t]he judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the plaintiff should be allowed to split her claims.” Id. § 26(l)(d), at 234 & cmt. e, illus. 6, at 240. That is,

the general principal that changes of law do not defeat claim preclusion may be relaxed when the dispute involves matters of special sensitivity. The easiest illustrations are provided by development of constitutional principles in cases that challenge continuing conduct of broad public importance.... A few cases reject preclusion in face of evolving constitutional law principles although the public interest may not seem as vital or the interests involved seem more nearly personal than public. These decisions are justified by many factors. The rights involved may be of public importance at an abstract level, despite the lack of obvious immediate importance. Often the first actions were eligible for preclusion only on principles of representation; special care is always required to ensure that nonparties are properly bound in such cases. Finally, ordinary claim preclusion rules are often strained by continuing conduct.

18 Wright § 4415, at 372-73.

The United States Supreme Court has dealt with the issue in the context of a statutory change occurring after the original judgment. In System Federation No. 91 v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961), a group of nonunion employees entered into a consent decree with a railroad and a number of unions representing its employees enjoining the railroad and its unions from discriminating against nonunion employees (i.e., requiring a “union shop”). Sys. Fed’n No. 91, 364 U.S. at 644, 81 S.Ct. at 369, 5 L.Ed.2d at 351. Afterwards, Congress amended the Railway Labor Act “to permit, under certain circumstances, a contract requiring a union shop.” Id. at 644, 81 S.Ct. at 369-70, 5 L.Ed.2d at 352. The railroad and the unions then sought to modify the decree’s injunction to reflect this change in the law. Id. at 644, 81 S.Ct. at 370, 5 L.Ed.2d at 352. In commenting on the res judicata effect of the original decree, the Court said:

There is also no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen. The source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief. Firmness and stability must no doubt be attributed to continuing injunc-tive relief based on adjudicated facts and law, and neither the plaintiff nor the court should be subjected to the unnecessary burden of re-establishing what has once been decided. Nevertheless the court cannot he required to disregard significant changes in law or facts if it is “satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong. ” A balance must thus be struck between the policies of res judicata and the right of the court to apply modified measures to changed circumstances.

Id. at 647-48, 81 S.Ct. at 371, 5 L.Ed.2d at 353 (citation omitted; emphasis added); see also United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, 1005-06 (1932) (“The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative.” (Citation omitted.)). The Court ultimately concluded that the decree could be modified due to the change in the law. Sys. Fed’n No. 91, 364 U.S. at 652, 81 S.Ct. at 373, 5 L.Ed.2d at 355. The Court explained that “[t]he parties have no power to require of the court continuing enforcement of rights the statute no longer gives.” Id.

This principle applies with equal, if not greater, force to the visitation order at issue in this case. If the visitation order has turned into “an instrument of wrong,” Sys. Fed’n No. 91, 364 U.S. at 647, 81 S.Ct. at 371, 5 L.Ed.2d at 353, a court should have the power to modify it, particularly because its enforcement is violating Sherry’s fundamental constitutional right to direct the upbringing of her children, rather than a mere statutory right. Likewise, Wanda and Jim “have no power to require of the court continuing enforcement of rights the [grandparent visitation] statute no longer gives.” Id. at 652, 81 S.Ct. at 373, 5 L.Ed.2d at 355.

In sum, the fact that the statute upon which the visitation order was based has been declared unconstitutional is a substantial change in circumstances. Yet, in the context of child custody eases, we have also required the change to “relate to the welfare of the children.” In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983) (citing In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980)). The district court did not discuss whether Paige and James’ best interests were better served by discontinuing the visitation with their grandparents. However, there is a presumption that parents act in the best interests of their children. See In re Marriage of Howard, 661 N.W.2d at 188 (citing Troxel, 530 U.S. at 69-70, 120 S.Ct. at 2062, 147 L.Ed.2d at 58-59). Thus, the change in circumstances in this case (the newly recognized unconstitutionality of section 598.35(1)) “relate[s] to the welfare of the children,” In re Marriage of Frederici, 338 N.W.2d at 158, because it recognizes Sherry’s fitness as a parent to make decisions in the best interests of her children, absent a showing that she is unfit or would harm the children, and it returns this decisionmaking role to her rather than the State.

Although res judicata is founded on important policy considerations, those considerations must give way at least when, as in this case, claim preclusion would result in the State’s continuing violation of an individual’s fundamental constitutional rights. As previously noted, the Arkansas Supreme Court rejected this conclusion in Hunt v. Perry, holding that “a change in circumstances that prevents the application of res judicata is a change in the circumstances of the parties, not the law.” Hunt, 138 S.W.3d at 662. However, we have already held that a change in the law can constitute a change in circumstances for purposes of modification. See In re Marriage of Feustel, 467 N.W.2d at 265 (holding change in federal tax law under which father was no longer allowed to claim children as dependents constituted substantial change in circumstances). As the Texas Court of Appeals stated in In re T.J.K.,

If a statute that authorized a term or condition of visitation- is declared unconstitutional, that change should operate like any other change in circumstances that potentially makes the order unworkable or inappropriate. There is nothing in the statute that limits the change in circumstances to factual changes rather than changes in law.

In re T.J.K., 62 S.W.3d at 832; cf. Iowa Code § 598.21(8)(⅛) (listing as a factor to be considered in determining whether there is a substantial change in circumstances “[o]ther factors the court determines to be relevant in an individual case”)- We find the Texas court’s reasoning to be more consistent with our law concerning res judicata than the court’s reasoning in Hunt. Therefore, we conclude the district court was correct that res judicata did not bar Sherry’s petition to modify. The court also correctly concluded that the unconstitutionality of section 598.35(1), as pronounced in In re Marriage of Howard, was a substantial change in circumstances that justified terminating the grandparent visitation order.

B. Other Arguments

Wanda and Jim next argue that even if section 598.35(1), upon which the visitation order is based, would normally be unconstitutional, it is constitutional as applied in this case because Sherry stipulated to the visitation. Wanda and Jim argue Sherry’s stipulation to visitation was “tantamount to a consent decree.” In re Marriage of Ask, 551 N.W.2d at 645 (citation omitted).

This argument does not alter our res judicata analysis. The judgment in System Federation No. 91 was also a consent decree. Sys. Fed’n No. 91, 364 U.S. at 644, 81 S.Ct. at 369, 5 L.Ed.2d at 351. The Court explained:

“The result is all one whether the decree has been entered after litigation or by consent. In either event, a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong. We reject the argument for the interven[o]rs that a decree entered upon consent is to be treated as a contract and not as a judicial act.... But in truth what was then adjudged was not a contract as to [anyone]. The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be.”

Id. at 650-51, 81 S.Ct. at 373, 5 L.Ed.2d at 355 (quoting Swift & Co., 286 U.S. at 114-15, 52 S.Ct. at 462, 76 L.Ed. at 1006). Thus, the fact that the visitation order was based on a stipulation does not mean the court cannot modify it if circumstances change. We have said:

[U]nder our decisions the binding force of a stipulation as to alimony, child support and custody depends on the approval of the court. It is the decree and not the contract that becomes binding. The stipulation becomes merged in the decree. And the court may disregard the stipulation entirely.

Brin v. Brin, 240 Iowa 659, 664, 37 N.W.2d 261, 264 (1949) (citations omitted); see also Holland v. Holland, 260 Iowa 248, 250, 149 N.W.2d 124, 125 (1967) (“The fact the parties made an agreement for support of children and the court approved it in the original decree does not affect the power to modify the decree.” (Citations omitted.)); 24A Am.Jur.2d Divorce and Separation § 999, at 383-84 (1998) (“The fact that the parties made an agreement for the custody and support of children and that the court approved it in the original decree does not affect the power to modify the decree.”); cf. id. § 817, at 197 (“Where a court has the general power to modify a decree for alimony or support, the exercise of that power normally is not affected by the fact the decree refers to, or is based on, an agreement of the parties.”).

We also observe that this approach is consistent with our general approach in Lynch v. Uhlenhopp, 248 Iowa 68, 83, 78 N.W.2d 491, 500 (1956), where we refused to permit contempt powers of courts to be used to enforce a stipulated provision of a dissolution decree that required the custodial parent to raise the child of the parties “in the Roman Catholic Religion.” Instead, we found that such a provision in a dissolution decree interfered with the constitutional restrictions forbidding interference with individual religious beliefs, and we refused to permit the courts to be used to affirmatively enforce the provision. Lynch, 248 Iowa at 83, 78 N.W.2d at 500. Accordingly, we reject Wanda and Jim’s contractual argument. We also note that we need not consider Sherry’s argument that she did not “ ‘vo-luntar[il]y, knowingly and intelligently,’ ” Lamberts, 670 N.W.2d at 135 (citation omitted), waive her parental caretaking interest in the visitation stipulation with Wanda and Jim. Even if she had validly waived her interest, the district court was still empowered to modify the decree upon a substantial change in circumstances.

Moreover, we also reject Wanda and Jim’s constitutional-as-applied argument because we have already held section 598.35(1) is unconstitutional on its face. In re Marriage of Howard, 661 N.W.2d at 192. If a statute is unconstitutional on its face, by definition, it cannot be constitutional as applied because a finding that a statute is unconstitutional on its face means that it cannot be constitutionally applied under any conceivable set of circumstances. In re Lewis, 257 N.W.2d 505, 510 (Iowa 1977) (“ ‘A statute is not unconstitutional on its face unless it is unconstitutional in every conceivable state of facts; it is ordinarily not unconstitutional as applied unless it is unconstitutional as applied in the specific factual situation before the court.’ ” (Citation omitted.)); accord 3 Chester J. Antieau & William J. Rich, Modem Constitutional Law § 50.03, at 711 (1997) (stating a holding that a statute is unconstitutional on its face is a determination that the legislation is always unconstitutional in “ ‘every conceivable situation which might possibly arise’ ”).

Finally, Wanda and Jim argue that the district court never had jurisdiction to modify the visitation order because Sherry did not file her petition within the time required by rule 1.1013, our rule governing petitions to vacate or modify final judgments. This argument fails because Sherry’s failure to comply with our rule governing modifications of final judgments does not deprive the court of its common-law power to modify judgments granting continuing relief and regulating future conduct upon a substantial change in circumstances. See Restatement (Second) of Judgments § 73, at 197 (“[A] judgment may be set aside or modified if: ... [t]here has been such a substantial change in the circumstances that giving continued effect to the judgment is unjust.”).

C. Sherry’s Request for Appellate Attorney Fees

The final issue in this appeal is Sherry’s request for appellate attorney fees. An award of appellate attorney fees is within the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d at 646 (citing In re Marriage of Goer, 476 N.W.2d 324, 326 (Iowa 1991)). Whether such an award is warranted is determined by considering “the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court’s decision on appeal.” Id. (citing In re Marriage of Goer, 476 N.W.2d at 326). Because we do not have any evidence of the parties’ respective ability to pay, we remand the case to the district court to determine Sherry’s entitlement to fees and the amount, if any, thereof. See Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d 11, 23 (Iowa 2001) (“[U]nder our current practice, the issue of appellate attorney fees is ‘frequently determined in the first instance in the district court because of the necessity for making a record.’ ” (quoting Lehigh Clay Prods., Ltd. v. Iowa Dep’t of Transp., 545 N.W.2d 526, 530 n. 2 (Iowa 1996))); see also Markey v. Carney, 705 N.W.2d 13, 27 (Iowa 2005) (remanding to district court to determine appellate attorney fees); GreatAmerica Leasing Corp. v. Cool Comfort Air Conditioning & Refrigeration, Inc., 691 N.W.2d 730, 734 (Iowa 2005) (same); In re Marriage of McCumin, 681 N.W.2d at 333 (same).

IV. Conclusion

Res judicata does not bar Sherry’s petition to modify or vacate the visitation order because the change in the law recognizing the unconstitutionality of section 598.35(1) is a substantial change in circumstances justifying modification of the order. “[Gjiving continued effect to the [visitation order] is unjust,” Restatement (Second) of Judgments § 73(2), at 197, because it constitutes a continuing violation of Sherry’s constitutional right as a mother to make decisions regarding her children’s well-being absent a showing of harm to them or her unfitness. The fact that the order was based on a stipulation of the parties does not alter this result. The district court was therefore correct in vacating the visitation order. We affirm the district court judgment and remand for determination of Sherry’s request for appellate attorney fees.

AFFIRMED AND REMANDED.

      . Both parties reference the “law of the case” doctrine, but that doctrine is inapplicable. The law of the case doctrine says:
      [A]n appellate decision becomes the law of the case and is controlling on both the trial court and on any further appeals in the same case. Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632 (Iowa 1991). Like res judicata, the law of the case doctrine is founded on a public policy against reopening matters which have been decided. Wolfe v. Graether, 389 N.W.2d 643, 651 (Iowa 1986) (citing 46 Am Jur.2d Judgments § 400, at 568 (1969)). Thus, issues decided by an appellate court generally cannot be reheard, reconsidered, or relitigated in the trial court. 5 C.J.S. Appeal and Error § 975, at 476-77 (1993). The appellate court decision is final as to all questions decided and the trial court is obligated to follow that decision. Id.

        United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000); accord In re Lone Tree Cmty. Sch. Dist., 159 N.W.2d 522, 526 (Iowa 1968). However, this is the first time the Spikers' case has been before any appellate court, so it is clear the applicable doctrine is res judicata, not law of the case.

      . In addition, Iowa Rule of Civil Procedure 1.1012 provides for modification of judgments under certain circumstances listed in the rule. See Iowa R. Civ. P. 1.1012 (grounds for modifying or vacating). However, petitions for relief under that rule must be filed within one year of the entry of the judgment or order involved. Id. r. 1.1013(1). Here, Sherry did not file her petition to modify until April 27, 2004 — two years and eight months after the visitation order was filed on August 21, 2001. Therefore, even assuming one of the grounds listed in rule 1.1012 applied to Sherry, she could not modify the judgment under that rule.