author: CALDWELL, Circuit Judge

text:
    2001 SD 111
    Rocky D. RANTAPAA and Margie B. Rantapaa, Individually and as Guardian Ad Litem of Matthew Rantapaa, a minor, Plaintiffs and Appellants, v. BLACK HILLS CHAIR LIFT CO., Plaintiff d/b/a Terry Peak Ski Area, Defendant, Third Party Plaintiff and Appellee, v. Curtis Allen, Third-Party Defendant and Appellee.
    No. 21718.
    Supreme Court of South Dakota.
    Argued May 30, 2001.
    Decided Aug. 22, 2001.
    Rehearing Denied Sept. 28, 2001.

      Kennith L. Gosch of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, SD, Gregory A. Eiesland of Johnson, Eies-land, Huffman, & Clayborne Law Firm, Rapid City, SD, Attorneys for plaintiffs and appellants.
    Jay C. Shultz and Steven J. Oberg of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, Attorneys for defendant and ap-pellee Black Hills Chair Lift Co., d/b/a Terry Peak Ski Area.
    J. Crisman Palmer of Gunderson, Palmer, Goodsell & Nelson, Rapid City, SD, Attorneys for appellee, Curtis Allen.
   CALDWELL, Circuit Judge

[¶ 1.] Rocky and Margie Rantapaa (Rantapaa), guardians ad litem for Matthew Rantapaa (Matthew), appeal a verdict in favor of the Black Hills Chair Lift Company (Black Hills Chair) in their action for negligent design and operation of the Terry Peak Ski Area. We reverse and remand.

FACTS

[¶ 2.] Black Hills Chair owns and operates the Terry Peak Ski Area which is open to the public for a fee. On January 11, 1999, Matthew, an eleven-year old boy on a school outing, was injured in a collision with another downhill snow skier, Curtis Allen (Allen). The accident occurred at the Terry Peak Ski Area. Matthew and Allen collided where two separate ski runs, Surprize and Snowstorm, meet. The ski area is designed so that two beginner runs, Snowstorm and Little Phil, and two intermediate runs, Surprize and Black Moon, empty into a small area just above an advanced or expert run called the Falls.

[¶ 3.] Dense pine trees separate Sur-prize and Snowstorm. Skiers that head down these two runs are not able to see one another until after they meet at the bottom of the runs. An expert skier who wishes to ski the Falls must cross over the bottom of Surprize. Also, a beginning skier skiing down Surprize must cross over the bottom of Snowstorm to avoid going down the Falls. Several signs on the Snowstorm run stating “easiest way down” direct novice skiers to an egress road that leads to the chair lift. The “easiest way down” and the Falls are the only ways to get to the chair lift from these two runs.

[¶ 4.] On the day of the accident, Matthew was skiing Terry Peak for the first time. Matthew was an inexperienced skier, only skiing four to five times in the past at a different ski resort. Matthew skied down Surprize. At the same time, Allen, an expert skier, skied down Snowstorm, heading for the Falls. Both skiers were skiing very close to the tree line that separates the two runs.

[¶ 5.] In order for Matthew to get to the trail marked “easiest way down,” he had to cross the area where Snowstorm and Surprize converge. Due to the dense tree line, Matthew could not see Allen coming down Snowstorm. Just before impact, Matthew turned left into Snowstorm and Allen, traveling at a high rate of speed and in a tucked position, collided with Matthew. Allen hit Matthew with such force that Matthew’s skull was fractured. Matthew was air-evacuated to the University of Minnesota Hospital for emergency surgery on his brain and skull. Matthew suffered permanent brain injury.

[¶ 6.] Rantapaa sued Black Hills Chair alleging negligence in the design, maintenance or supervision of Terry Peak Ski Area. Regarding the issue of supervision, the testimony at trial revealed that ski patrollers were in the area and responded almost immediately to the accident. Matthew’s school also provided chaperones although it is not clear whether Matthew was near his chaperone at the time of the accident.

[¶ 7.] On the claim of negligent design, Rantapaa claims that professional engineers did not design Terry Peak. The owners of Black Hills Chair designed and constructed the ski runs at Terry Peak. Black Hills Chair did not hire an engineer to design the runs and has not had an engineer check the design of the runs for safety.

[¶8.] Terry Peak’s General Manager, Tom Marsing, testified that the advent of professional engineering in ski area design is a relatively recent phenomenon. Mars-ing also testified that having different runs empty into a common area near the bottom of a ski hill is a necessary practice and, in his opinion, does not present a problem.

[¶ 9.] To the contrary, Rantapaa maintains that the design of the ski runs encourages expert skiers to cross over the beginner’s ski area. Rantapaa claims that there is inadequate visibility for skiers at the convergence of Snowstorm and Sur-prize due to the dense tree line that separates the two runs. Rantapaa contends that neither Matthew nor Allen could see each other until immediately before impact because of the dense tree line. Rantapaa offered evidence that a “wing gate” is one acceptable method in the siding industry to warn skiers of dangers on a slope. Rantapaa alleges that Black Hills Chair had a duty to use a wing gate to warn Matthew of the blind intersection.

[¶ 10.] Following presentation of the evidence, the trial court instructed the jury that it was Rantapaa’s burden to prove Black Hills Chair was negligent in its design of the slopes; its failure to warn of the danger at intersecting trails; or its failure to supervise slope intersections. The trial court defined negligence for the jury. The trial court also gave several other instructions. Specifically, the trial court instructed the jury on a Lawrence County ordinance called the Skier Responsibility Ordinance which exempts Black Hills Chair from liability resulting in injuries from any of the inherent dangers and risks of skiing. Rantapaa’s counsel objected to this instruction on the grounds that it conflicts with South Dakota’s statutory and common law of negligence. The trial court, however, overruled the objection.

[¶ 11.] At the conclusion of the case, the jury returned a unanimous special verdict in favor of Black Hills Chair. The jury specifically found that Black Hills Chair was not negligent. The jury did not reach any of the remaining issues.

[¶ 12.] Rantapaa appeals the submission of Instruction 17 to the jury. He claims that Instruction 17, which is a portion of the Skier Responsibility Ordinance, is invalid because it attempts to change the general laws of South Dakota.

STANDARD OF REVIEW

[¶ 13.] Under the applicable standard of review, we construe jury instructions as a whole to determine if they establish a full and correct statement of the law. See Dunes Hospitality v. Country Kitchen Intern., 2001 SD 36, ¶ 7, 623 N.W.2d 484, 487; State v. Frazier, 2001 SD 19, ¶ 36, 622 N.W.2d 246, 269; Veeder v. Kennedy, 1999 SD 23, ¶ 32, 689 N.W.2d 610, 618; Davis v. Knippling, 1998 SD 31, ¶ 4, 676 N.W.2d 626, 526. Conflicting, misleading or confusing instructions may create reversible error. See Veeder, 1999 SD 23 at ¶ 32, 589 N.W.2d at 618. An appellant must show not only that a particular instruction was erroneous, but also that it was prejudicial, meaning the jury probably would have returned a different verdict if the faulty instruction had not been given. See Frazier, 2001 SD 19 at ¶ 35, 622 N.W.2d at 259.

ISSUE

[¶ 14.] Whether the trial court erred in giving Instruction 17 which is a portion of the Lawrence County Skier Responsibility Ordinance?

[¶ 15.] Rantapaa argues that the trial court erred in submitting Instruction 17 to the jury and that he was prejudiced. Jury Instruction 17 provides as follows:

An ordinance in Lawrence County ... provides in part:
A skier shall:
(1)Assume the risk of and all legal responsibility for any injury to person or property resulting from any of the 'inherent dangers and risks of skiing, except that a skier is not precluded under this Ordinance from suing another skier for any injury to person or property resulting from such other skiers’ acts or omissions ...
“Inherent dangers and risks of skiing” mean those dangers or conditions which are an integral part of the sport of downhill skiing, including changing weather conditions; snow conditions as they exist or may change such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cutup snow, and machine-made snow; surface -or subsurface conditions such •as bare spots, forest growth, rocks, stumps, stream beds, and trees, or other natural objects and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modification; collisions with other skiers; and the failure of skiers to ski within their own abilities.
(2) Ski within the limits of individual skill and expertise, so as to avoid injury to self and others.
(3) Maintain a reasonable control of speed and direction, and maintain a proper lookout at all times, so as to prevent injury to self and others.
If you find that the collision between Matthew and [ ] Allen occurred as the result of an “inherent danger and risk of skiing,” recovery cannot be had herein and your verdict must be for Black Hills Chair Lift Company.
This ordinance sets the standard of care of a reasonable person. If you find [ ] Allen violated it, such violation is negligence. (footnote added).

Although the trial court instructed the' jury on a portion of the Lawrence County Skier Responsibility Ordinance, the trial, court immediately gave two additional instructions. Instruction 18 provides:

Although a ski area has no duty to protect against risks inherent in the sport, it does owe a duty not to increase risks of activity beyond risks inherent in the sport.
The foregoing ordinance does not prevent a suit by a skier against a ski area for negligence in design and maintenance, failure to warn and/or failure to supervise operations, which negligence increases the risks of skiing beyond those inherent in the sport.

[¶ 16.] In addition to Instruction 18, the trial court gave Instruction 19, which states:

Defendant Black Hills Chair Lift Company owed Matthew [ ] a duty to use reasonable or ordinary care to see that the premises was [sic] in a reasonably safe condition. This duty required the defendant Black Hills Chair Lift Company to keep the property reasonably safe for the benefit of Matthew [ ]. The duty includes a duty to warn of concealed or dangerous conditions known to the landowner, a duty to inspect the premises for unreasonably dangerous conditions and a duty to use ordinary care in active operations on the property.

During settlement of the instructions, Black Hills Chair objected to these two additional instructions. The trial court, nonetheless, gave the instructions over its objections.

[¶ 17.] On appeal, we utilize a two prong approach to review jury instructions:

A party challenging as erroneous a jury instruction must show not only ‘that the instruction was in error, but also that it was prejudicial error to the effect that under the evidence, the jury ... probably would have returned a different verdict.’

City of Sioux Falls v. Hone Family Trust, 1996 SD 126, ¶ 11, 554 N.W.2d 825, 827 (citations omitted). Thus, Rantapaa must first show that the instruction was in error. If Rantapaa meets this threshold requirement he must then establish that the jury probably would have returned a different verdict if not for the erroneous jury instruction. Veeder, 1999 SD 23 at ¶ 14, 589 N.W.2d at 618.

a. Was Instruction 17 a misstatement of the law and therefore erroneous?

[¶ 18.] Rantapaa claims that the giving of Instruction 17, a portion of the Lawrence County Skier Responsibility Ordinance, was an error because the ordinance is in direct conflict with the general laws of this state. In support of his claim, Ranta-paa maintains that the Skier Responsibility Ordinance violates the “Home Rule” clause of the South Dakota Constitution which provides in part: “A chartered governmental unit may exercise any legislative power or perform any function not denied by ... the general laws of the state.” SD Const art IX § 2. Specifically, Rantapaa contends that the ordinance conflicts with established principles of tort law by absolving Black Hills Chair from liability imposed by the legislature pursuant to SDCL 20-9-1 and the common law. Thus, argues Rantapaa, any ordinance that directly conflicts with the “general laws of the state” is invalid.

[¶ 19.] The legislature codified common law negligence in SDCL 20-9-1. Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D. 1988). SDCL 20-9-1 states:

Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.

Although the language of SDCL 20-9-1 is very broad and seems to encompass allegations of negligence against a landowner, the legislature has adopted several statues exempting a landowner from liability arising from outdoor recreational activities, including winter sports. See SDCL 20-9-12 and 20-9-16. However, SDCL 20-9-16 provides that a landowner may be held liable under SDCL 20-9-1 for any injuries suffered pursuant to outdoor recreational activities if the landowner charges a fee before the invitee enters the land.

[¶ 20.] The only legislative modification to the general rule that a landowner cannot be liable for injuries suffered on his land due to participation in outdoor recreational activities when the landowner does not charge for entry is SDCL 32-20A-21. In SDCL 32-20A-21, the legislature specifically states that a snowmobiler assumes the risks inherent in the sport of snowmobiling. Accordingly, under SDCL 32-20A-21, the legislature changed the common law defense of assumption of the risk in snowmobiling cases. The legislature has not made a similar law excepting alpine skiing from general tort law. Lawrence County, however, has attempted to change the principles of tort law imposed by the legislature and the common law with the Skier Responsibility Ordinance.

[¶ 21.] In determining the validity of Jury Instruction 17, which is based upon the ordinance, we must examine the validity of the ordinance. Specifically, we must consider two concepts: Lawrence County’s home rule authority and the state’s power to nullify or preempt local action. Goodell v. Humboldt County, 575 N.W.2d 486, 491-92 (Iowa 1998); see generally State v. Hansen, 75 S.D. 476, 68 N.W.2d 480 (1955). These concepts are provided for in South Dakota’s constitutional grant of county home rule authority. SD Const art IX § 2. Under this article, counties have the authority to “exercise any legislative power or perform any function not denied by its charter, the Constitution or the general laws of the state.” Id. The concept of home rule is that state and local governments may regulate in the same area if the local rule does not conflict with state law. See Goodell, 575 N.W.2d at 492. However, “[a] county in this state is a creature of statute and has no inherent authority!!,] • • • [but] only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.” Hansen, 75 S.D. at 478, 68 N.W.2d at 481 (citations omitted); Breckweg v. Knochenmus, 81 S.D. 244, 252, 133 N.W.2d 860, 864 (1965).

[¶22.] SDCL 7-18A-2 specifically authorizes a county to adopt ordinances “as may be proper and necessary to carry into effect the powers granted to it by law....” Aside from this statutory grant of legislative power, a county may not pass an ordinance which conflicts with state law. SD Const art IX § 2.

[¶ 23.] There are several ways in which a local ordinance may conflict with state law. In that event, state law preempts or abrogates the conflicting local law. First, an ordinance may prohibit an act which is forbidden by state law and, in that event, the ordinance is void to the extent it duplicates state law. See People v. Commons, 64 Cal.App.2d. Supp. 925, 148 P.2d 724, 727 (1944). Second, a conflict may exist between state law and an ordinance because one prohibits what the other allows. Snow Land, Inc. v. City of Brookings, 282 N.W.2d 607, 608 (S.D.1979) (citing Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 143 N.W.2d 813 (1966)). And, third, state law may occupy a particular field to the exclusion of all local regulation. Envirosafe Serv. of Idaho v. Cty. of Owyhee, 112 Idaho 687, 735 P.2d 998, 1000 (1987). In the instant case, the Skier Responsibility Ordinance conflicts with South Dakota’s statutory law of negligence because SDCL 20-9-1 allows a cause of action for negligence against Black Hills Chair and the ordinance tends to forbid it.

[¶24.] The Skier Responsibility Ordinance prohibits any skier, such as Matthew, from making any claim against or recovering any money damages from Black Hills Chair if the injury is a result of an inherent danger or risk of skiing. See Skier Responsibility Ordinance § 3, supra n. 7, at 6. Although SDCL 7-18A-2 authorizes Lawrence County to adopt ordinances regulating local concerns, the legislature has never granted Lawrence County the authority to regulate negligence actions or to establish defenses which conflict with the general laws of this State.

[¶ 25.] Three apparent deficiencies exist in the Skier Responsibility Ordinance. The first deficiency is that the ordinance conflicts with South Dakota’s statutory and common law of negligence. A local governmental ordinance conflicts with state law when its provisions, express or implied, are inconsistent and irreconcilable with state law. Lamb v. Mirin, 90 Nev. 329, 526 P.2d 80, 82 (1974) (citing Mabank Corporation v. Board of Zoning Appeals, 143 Conn. 132, 120 A.2d 149 (1956)). Here the definition of “inherent dangers and risks of skiing” in the Skier Responsibility Ordinance is inconsistent and irreconcilable with South Dakota law. The ordinance provides that a skier shall assume the “inherent dangers and risks of skiing.” The ordinance then broadly defines “inherent dangers and risks of skiing.” This definition, however, encompasses risks not necessarily assumed by a skier. Indeed, the definition within the ordinance operates to shield Black Hills Chair from any claims of negligence. This goes too far. Jury instruction 17 which is based upon the ordinance, therefore, precluded Rantapaa’s claims. The instruction wrongly advised the jury that Black Hills Chair could not be held liable even if the collision between Matthew and Allen was due to a defect in the design of the ski runs.

[¶ 26.] The second deficiency is that the ordinance completely removes the common law elements of assumption of the risk. Under the common law, assumption of the risk is an affirmative defense to a negligence claim. Accordingly, if the plaintiff establishes that the defendant breached the appropriate standard of care and caused injury, the burden shifts to the defendant to prove that the plaintiff assumed the risk. In South Dakota, assumption of the risk is a tripartite analysis. The defendant must show (1) that the plaintiff had actual or constructive knowledge of the existence of the specific risk involved; (2) that the plaintiff appreciated the risk’s character; and (3) that the plaintiff voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice. Failure to establish any one of the above three criteria would be fatal to this defense. See Ray v. Downes, 1998 SD 40, ¶ 11, 576 N.W.2d 896, 898; Mack v. Kranz Farms, Inc., 1996 SD 63, ¶ 9, 548 N.W.2d 812, 814; Bauman v. Auch, 539 N.W.2d 320, 326 (S.D.1995); Westover v. East River Elec. Power, 488 N.W.2d 892, 901 (S.D.1992).

[¶ 27.] Pursuant to the ordinance, a plaintiff is found to have assumed the risk for any injury sustained which resulted from the “inherent dangers and risks of skiing.” Therefore, if the injury the plaintiff sustained falls within the all-encompassing definition section of “inherent dangers and risks of skiing,” then the defendant is absolved from proving any of the essential elements of assumption of the risk. This contravenes South Dakota case law. In Bauman, we held that the trial court erred in instructing the jury on only two out of the three essential elements of assumption of the risk. See Bauman, 539 N.W.2d at 326 (citing Darit v. Berghorst, 484 N.W.2d 891, 894 (S.D.1992)). Clearly then, Instruction 17, which states that the defendant is absolved from proving any of the elements of assumption of the risk, conflicts with the law of this State. Aside from this error, a third deficiency exists in Instruction 17.

[¶ 28.] The third deficiency is that the ordinance incorrectly shifts the burden of proof of assumption of the risk from the defendant to the plaintiff. Pursuant to the ordinance, the plaintiff is automatically presumed to assume the inherent risks in alpine skiing. The defendant, therefore, is no longer required to prove the affirmative defense of assumption of the risk. In essence, under the language of the ordinance, the plaintiff has the burden of proving that he or she did not assume any risk inherent in the sport of siding. This is incorrect. For liability to attach, the plaintiff must affirmatively prove negligence, but need not disprove inherent risks. The trial court’s instruction that Rantapaa had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to Rantapaa and constituted error. Instruction 17, which is based in part on the Skier Responsibility Ordinance, is misleading, confusing and conflicts with the general laws of this State. Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 19, 562 N.W.2d 801, 808; Wallahan v. Black Hills Elec. Co-op., Inc., 523 N.W.2d 417, 423 (S.D.1994).

[¶ 29.] While Instruction 17 is plainly erroneous, we must proceed to the second stage of our analysis and determine whether the trial court’s giving of Instruction 17 constituted prejudicial error.

b. Was Instruction 17 prejudicial (i.e., would the jury have returned a different verdict if not for the erroneous jury instruction) ?

[¶ 30.] Rantapaa claims that the trial court’s submission of Instruction 17 was prejudicial error. In particular, Rantapaa argues that “Instruction 17 went right to the heart of the case.” According to Ran-tapaa, the jury was left with no alternative but to return a verdict for Black Hills Chair. To support his position, Rantapaa maintains that Instruction 17 communicated to the jury that Black Hills Chair could not be held liable if the two skiers collided. In fact, the attorney for Black Hills Chair clung to this proposition in his closing remarks before the jury.

[¶ 31.] In closing argument, the attorney for Black Hills Chair stated that Instruction 17 was:

[T]ough law, this is tough justice, this is the law and this is what justice is. And you read it as I do, and then you’ve got to return a verdict for Terry Peak ... [I]f you find that a collision between Matthew and [Allen] occurred as a result of an inherent danger and/or a risk of skiing, recovery cannot be had in this case and your verdict must be for [Black Hills Chair],

Therefore, according to Rantapaa, the trial court’s submission of Instruction 17 to the jury and defense counsel’s closing remarks emphasizing that particular instruction constituted prejudicial error.

[¶ 32.] To refute Rantapaa’s argument, Black Hills Chair contends that Instructions 18 and 19 cured any misstatement of law in Instruction 17. Immediately after instructing the jury on the Skier Responsibility Ordinance, the trial court gave the following instructions over the objections of Black Hills Chair:

Although a ski area has no duty to protect against risks inherent in the sport, it does owe a duty not to increase the risks of activity beyond risks inherent in the sport.
The foregoing ordinance does not prevent a suit by a skier against a ski area for negligence in design and maintenance, failure to warn and/or failure to supervise operations, which negligence increases the risks of skiing beyond those inherent in the sport.
Defendant Black Hills Chair Lift owed Matthew Rantapaa a duty to use reasonable or ordinary care to see that the premises was in a reasonably safe condition. This duty required the defendant Black Hills Chair Lift Company to keep the property reasonably safe for the benefit of Matthew Rantapaa. The duty includes a duty to warn of concealed or dangerous conditions known to the landowner, a duty to inspect the premises for unreasonably dangerous conditions and a duty to use ordinary care in active operations on the property.

[¶ 33.] Although we review jury instructions as a whole to determine if they establish a full and correct statement of the law, we find that the instructions given in this case, and in particular Instructions 18 and 19, could not dispel the damage done by Instruction 17. Dunes Hospitality, 2001 SD 36 at ¶ 7, 623 N.W.2d at 487; Frazier, 2001 SD 19 at ¶35, 622 N.W.2d at 259; Veeder, 1999 SD 23 at ¶ 32, 589 N.W.2d at 618; Davis, 1998 SD 31 at ¶ 4, 576 N.W.2d at 526. After the trial court instructed the jury on the Lawrence County ordinance, which defines “inherent dangers and risks of skiing” to include collisions with skiers due to design problems, the jury was left with no choice but to find in favor of Black Hills Chair. In essence, Instruction 17 operated as a directed verdict in favor of Black Hills Chair. This constitutes prejudicial error in its purest sense.

[¶ 34.] Black Hills Chair also maintains that a much stronger argument against a finding of prejudicial error is that the jury never even reached the issue of whether Matthew had assumed the risks inherent in downhill skiing as those risks were defined in Instruction 17. Notwithstanding Rantapaa’s argument that Instruction 17 is contrary to general tort law, Black Hills Chair argues that the giving of Instruction 17 was not prejudicial because the jury specifically found that Black Hills Chair was not negligent. According to Black Hills Chair, since the jury found that it was not negligent, the jury never reached the issue presented in this appeal.

[¶ 35.] We find, however, that the contention of Black Hills Chair is erroneous. The trial court’s submission of Instruction 17 foreclosed any claim of negligence against Black Hills Chair; hence, the jury could not find against Black Hills Chan-under the law as instructed. Accordingly, the jury was forced to find in favor of Black Hills Chair. As stated previously, this embodies prejudicial error.

[¶ 36.] We hold that the trial court’s submission of Instruction 17 was prejudicial error.

[¶ 37.] Reversed and remanded for a new trial.

[¶ 38.] MILLER, Chief Justice, and SABERS, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 39.] CALDWELL, Circuit Judge, for AMUNDSON, Justice, disqualified.

      . Terry Peak Ski Area is near Lead, South Dakota, in Lawrence County.

      . Although “Surprize’ appears to be misspelled, the run was actually named for an old mining claim that existed in the area long before the construction of the ski area.

      . During his testimony, Allen assumed that he and Matthew hit head-to-head because both were knocked unconscious for a short time and sustained injury to their heads. Allen sustained a small head wound.

      . Mr. and Mrs. Rantapaa sued Black Hills Chair individually and as Guardians Ad Litem of Matthew Rantapaa.

      .Black Hills Chair brought a third-party complaint against Allen for indemnity and contribution. For purposes of this appeal, Allen has joined Black Hills Chair's arguments.

      . Early in this lawsuit, Black Hills Chair moved for summary judgment based upon the Skier Responsibility Ordinance and the common law doctrine of primary assumption of the risk. In denying Black Hills Chair’s motion, the trial court reasoned:
      Based upon my review of the applicable law, the briefs and arguments of Counsel, I’m going to deny the motion for summary judgment. The duty of care ... is defined by SDCL 20-9-1, which says that everybody is responsible for damages for injuries to persons or property caused by their failure to use ordinary care ...
      To the extent that the Lawrence County Skier Responsibility Ordinance clarifies and defines the inherent risk of skiing, I think it's valid and not in conflict with State law. But I think, under our statutory scheme of tort law, that where the Plaintiff suffers an injury which is caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not ... an inherent risk of skiing and would fall outside a statute that defines the inherent risks and would allow for liability.

      . The ordinance provides in relevant part:
      SECTION THREE — LIABILITY OF SKI AREA OPERATOR
      No skier may make any claim against or recover any money damages from any ski area operator for injuries resulting from any of the inherent dangers and risks of skiing. If a ski area operator fails to comply with the provisions of Section Two, and if another person is injured as a proximate cause of such failure, such operator is civilly liable to the injured person. However, a ski area operator has no duty to eliminate, alter, control, or lessen any risk or danger inherent in the sport of downhill skiing.... SECTION FOUR — SKIER’S DUITES AND CONDUCT
      A skier shall:
      (1)Assume the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing, except that a skier is not precluded under this Ordinance from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions;
      (2) Ski within the limits of individual skill and expertise, so as to avoid injury to self and others;
      (3) Maintain reasonable control of speed and direction, and maintain a proper lookout, at all times, so as to prevent injury to self and others....
      Skier Responsibility Ordinance.

      . We acknowledge that the propriety of the ordinance itself is not before this Court.

      . Although the trial court did properly instruct the jury on the three elements of assumption of the risk, the instructions, taken together, were misleading because the trial court also instructed the jury that the defendant was not required to prove the necessary elements of assumption of the risk if Matthew's injury fell within the definition of inherent dangers and risks of skiing in Instruction 17.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR BLACK HAWK COUNTY, Defendant.
    No. 98-2054.
    Supreme Court of Iowa.
    Sept. 6, 2001.
    Thomas G. Becker, State Public Defender, and Mark C. Smith, First Assistant State Public Defender, for plaintiff.
    Kellyann M. Lekar of Roberts, Stevens & Lekar, P.L.C., Waterloo, for defendant.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001)

   LAVORATO, Chief Justice.

In this original certiorari proceeding, the state public defender’s office (state public defender) challenges a district court order directing it to send its records concerning a juvenile to the clerk of court for sealing pursuant to Iowa Code section 232.150 (Supp.1997). We sustain the writ we earlier granted.

I. Background Facts and Proceedings.

On October 2, 1998, a juvenile filed an application in district court for an order sealing records pursuant to Iowa Code section 232.150. Following a hearing on the application, the district court granted the order. The district court ordered a number of agencies, including the state public defender, “to send all records concerning the juvenile ... to the clerk of court where the records shall be sealed pursuant to section 232.150.” The court further ordered the agencies to “expunge and delete any index references to the records.” Although the application listed Lon Britt, an assistant public defender who had represented the juvenile, as possibly having custody of some or all of the records, neither he nor the state public defender were given notice of the hearing.

On November 16, the state public defender filed a petition for writ of certiorari with this court, alleging that it had not received notice of hearing on the juvenile’s application. The petition further alleged that the district court (1) lacked authority to enter the order directing the state public defender to turn over its records, and (2) in entering the order acted illegally and in excess of its authority. We granted the writ.

Meanwhile, on March 11, 1999, the state public defender filed a motion in the district court, requesting the court to excuse it from complying with the sealing order. In its motion, the state public defender alleged that (1) it had not been given notice of the juvenile’s application; (2) it is not a custodian of records for the juvenile court and is not a criminal justice agency or a juvenile justice agency, and thus is exempt from the provisions of Iowá Code section 232.150; and (3) the file of the juvenile’s attorney should not be surrendered because “[t]he right of a juvenile to have the contents of his or her attorney’s files kept secret is fully protected by the attorney’s absolute obligation to keep those files confidential and inviolate.”

The county attorney resisted the motion, arguing that the district court lacked jurisdiction to consider the motion because of the petition for writ of certiorari pending in our court. The state public defender filed a motion for limited remand for a ruling on the pending motion in the district court. We granted the limited remand.

Following a hearing on the motion, the district court entered an order on June 8. The court determined that it had erred when it entered the sealing order because no notice had been given to the state public defender. However, the court ruled that the subsequent hearing on the state public defender’s motion cured any defect and affirmed its earlier sealing order. The case is now before us following the limited remand.

II. Scope of Review.

We recently summarized the scope of review for original certiorari actions in this court:

The supreme court has “constitutional powers to issue writs to, and exercise supervisory and administrative control over, other judicial tribunals.” State v. Davis, 493 N.W.2d 820, 822 (Iowa 1992). Our rules of appellate procedure contemplate original certiorari proceedings at the appellate level by providing for the filing in our court of a “petition for writ of certiorari directed to the district court.” Iowa R.App. P. 301; see also Iowa R.App. P. 22(a) (authorizing supreme court to issue writs in furtherance of its “supervisory and administrative control over all inferior judicial tribunals and officers”). Such a petition may be granted or denied. See Iowa R.App. P. 302 (stating that petition may be “ruled on in the manner prescribed in the Rules of Appellate Procedure relating to motions”); Iowa R.App. P. 22(f) (giving single justice authority to grant or deny relief sought by motion).
Bousman v. Ioiva Dist. Ct., 630 N.W.2d 789, 794 (Iowa 2001).

In this original certiorari action, the state public defender is the plaintiff, and the district court is the named or nominal defendant. See Iowa R.App. P. 303. Private counsel now represents the juvenile, whose interests the State essentially represented in the district court. The juvenile is the underlying defendant in this action.

A writ of certiorari lies where a lower board, tribunal, or court has exceeded its jurisdiction or otherwise has acted illegally. State Public Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 36 (Iowa 1999). For this reason, this court “may examine only the jurisdiction of the district court and the legality of its actions.” Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). “Illegality exists when the court’s findings lack substantial evidentia-ry support, or when the court has not properly applied the law.” Id. Our review of the district court’s action is therefore for correction of errors of law. See Iowa R.App. P. 4; French v. Iowa Dist. Ct., 546 N.W.2d 911, 913 (Iowa 1996).

III. Did the District Court Err in Ordering Records Held by the State Public Defender be Sealed?

Iowa Code section 232.150 provides in relevant part:

1. Upon application of a person who was taken into custody for a delinquent act or was the subject of a complaint alleging delinquency or was the subject of a delinquency petition, or upon the court’s own motion, the court, after hearing, shall order the records in the case including those specified in sections 232.117 and 232.119 sealed_
2. Reasonable notice of the hearing shall be given to the person who is the subject of the records named in the motion, the county attorney, and the agencies having custody of the records named in the application or motion.
3. Notice and copies of a sealing order shall be sent to each agency or person having custody [of] the records named therein.
4. On entry of a sealing order:
a. All agencies and persons having custody of records which are named therein shall send such records to the court issuing the order.
b. All index references to sealed records shall be deleted.
6. The sealed records shall no longer be deemed to exist as a matter of law, and the juvenile court and any other agency or person who received notice and a copy of the sealing order shall reply to an inquiry that no such records exist, except when such reply is made to an inquiry pursuant to subsection 6.
6. Inspection of sealed records and disclosure of their contents thereafter may be permitted only pursuant to an order of the court upon application of the person who is the subject of such records except that the court in its discretion may permit reports to be inspected by or their contents to be disclosed for research purposes to a person conducting a bona fide research under whatever conditions the court deems proper.

Iowa Code § 232.150 (emphasis added).

The dispute here is whether the state public defender falls within the provisions of subsection 4 as “agencies and persons having custody of records.” We think, for reasons that follow, section 232.150(4) was not meant to include the state public defender.

Iowa Code section 232.2(38) defines “official juvenile court records” or “official records” to mean

official records of the court of proceedings over which the court has jurisdiction under this chapter which includes but is not limited to the following:
a. The docket of the court and entries therein.
b. Complaints, petitions, other pleadings, motions, and applications with a court.
c. Any summons, notice, subpoena, or other process and proofs of publication.
d. Transcripts of proceedings before the court.
e. Findings, judgments, decrees and orders of the court.

Iowa Code § 282.2(38) (emphasis added).

Chapter 232 is very specific about what records are subject to sealing under section 232.150. For example, Iowa Code section 232.147(2) provides that “[ojjficial juvenile court records in cases alleging delinquency ... shall be public records, subject to sealing under section 232.150.” Iowa Code § 232.147(2) (emphasis added). And Iowa Code section 232.149(2) provides that “[rjecords and files of a criminal or juvenile justice agency concerning a child involved in a delinquent act are public records ... subject to. sealing under section 232.150, unless the juvenile court waives its jurisdiction over the child so that the child may be prosecuted as an adult for a public offense.” Iowa Code § 232.149(2) (emphasis added).

When we consider sections 232.2(38), .147(2), .149(2), and .150 together, we are- confident the legislature meant to subject to sealing only (1) official records of the court in cases alleging delinquency concerning a juvenile and (2) records and files of a criminal or juvenile justice agency concerning a juvenile involved in a delinquent act. See McCracken v. Ioiua Dep’t of Human Servs., 595 N.W.2d 779, 784 (Iowa 1999) (“In determining legislative intent ... we consider and construe all parts of a statute together.”). The state public defender is neither the custodian of official court records concerning the juvenile nor is it a criminal or juvenile justice agency having records and files of a juvenile. The district court erred in concluding otherwise.

We reach this conclusion even though the language of the statute seems to include, for sealing purposes, records other than those specified in sections 232.147 and 232.149. See Iowa Code § 232.150(1) (“[T]he court, after hearing, shall order the records in the case including those specified in sections 232.147 and 232.149 sealed....” (Emphasis added.)).

The term “including” usually is interpreted as a term of enlargement or illustration, having the meaning of “and” or “in addition to.” 2A Norman J. Singer, Sutherland Statutory Construction § 47.07 (6th ed. rev.2000); Black’s Law Dictionary 763 (6th ed.1990). However, it may also be interpreted as a term of limitation depending on the context in which the term is used, the subject matter, and legislative intent. Union Elec. Co. v. Cuivre River Elec. Coop., Inc., 571 S.W.2d 790, 794 (Mo.Ct.App.1978); Premier Prods. Co. v. Cameron, 240 Or. 123, 124, 400 P.2d 227, 228 (1965) (en banc); Penn Dairies v. Milk Control Comm’n, 344 Pa. 635, 635, 26 A.2d 431, 433 (1942); Black’s Law Dictionary 763. Thus, for example, where a general term is followed by the word “including,” which is itself followed by specific terms, the intent may be one of limitation. See Hamilton v. City of Urbandale, 291 N.W.2d 15, 19 (Iowa 1980) (holding that phrase “[t]he rehabilitation and improvement of parks already owned, including the removal, replacement and planting of trees thereon” did not contemplate activities such as construction of a $250,000 athletic complex); see also Powers ex rel. Doyon v. Charron, 86 R.I. 411, 415, 135 A.2d 829, 832-33 (1957).

We have also said that “[wjhen the statutory language is ambiguous, the manifest intent of the legislature is sought and will prevail over the literal import of the words used.” State v. McSorley, 549 N.W.2d 807, 809 (Iowa 1996).

Although Iowa Code section 232.150(1) is not a model of clarity, other provisions of chapter 232 make clear, as we have pointed out, that the state public defender is not one of the entities subject to the sealing order. In reading the whole of chapter 232, we conclude that in using the word “including,” the legislature did not intend to override the intent of these other provisions, but rather intended to limit the reach of section 232.150(1),

The invasion of any attorney’s file regarding a client is so contrary to the principles of an attorney-client relationship that public policy demands and supports the conclusion we have reached. We cannot imagine that the legislature would have intended a contrary result.

IV. Disposition.

Because we conclude the district court erred in determining that Iowa Code section 232.150(4) includes the state public defender, we sustain the writ.

WRIT SUSTAINED.

SNELL, S.J. participates in lieu of STREIT, J., who takes no part.


author: TERNUS, Justice.

text:
    Maria A. HERRERA, Appellee, v. IBP, INC., Appellant.
    No. 99-0836.
    Supreme Court of Iowa.
    Sept. 6, 2001.

      James C. Meehan, Dakota City, Nebrak-sa, for appellant.
    Paul J. McAndrew, Jr., Iowa City, for appellee.
    Max Schott of Max Schott & Associates, P.C., Des Moines, and Robert S. Kinsey, III, of Brown, Kinsey & Funkhouser, P.L.C., Mason City, for amicus curiae, Iowa Trial Lawyers Association.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   TERNUS, Justice.

The dispute in this workers’ compensation case centers on whether the industrial commissioner correctly determined that the employee’s claim for workers’ compensation benefits based on a cumulative trauma injury was time barred. See Iowa Code § 85.26 (1995) (requiring that any claim for benefits under chapter 85 be filed within two years of the date of injury). The agency decision was reversed by the district court on judicial review.

On the employer’s appeal to our court, we hold that the industrial commissioner’s determination that the employee’s claim for benefits accrued more than two years prior to the date she filed her petition is not supported by substantial evidence. Therefore, we affirm the decision of the district court and remand for further proceedings.

I. Background Facts and Proceedings.

The appellee, Maria Herrera, began working in a hog slaughtering plant owned by the appellant, IBP inc., in March 1988. In September 1990, she experienced pain in her arms and hands. IBP sent her to Dr. Forrest Dean who diagnosed bilateral overuse carpal tunnel syndrome. He ordered conservative treatment and placed Herrera on light duty. Herrera’s symptoms gradually decreased and were resolved by December 1990. At that time, Herrera was released to return to work with no restrictions or limitations.

On March 27, 1993, Herrera reported left wrist, bilateral arm and shoulder, and neck discomfort to the company nurse. The nurse massaged these areas and then returned Herrera to her position without restrictions.

Herrera saw Dr. Dean on March 31, 1993. He noted her problems to be overuse of the upper extremities. She was again treated conservatively, seeing Dr. Dean every one to two weeks. After approximately two months of conservative treatment and restricted activity, Herrera began to have some relief from her symptoms. Her condition continued to improve and in January 1994 Dr. Dean ordered physical therapy and decreased her restrictions to permit occasional hand use. By March 1994 Herrera had improved to the point that Dr. Dean determined she could begin job hardening at her old job. Her attempts to do so, however, resulted in an aggravation of her symptoms.

When Herrera saw Dr. Dean in early April 1994, she reported that her discomfort had increased. In mid-May 1994, Dr. Dean reduced Herrera’s work hardening routine due to an increase in her upper extremities .symptoms. Nonetheless, her pain increased and her hands began to swell. She was placed back on light duty-in June 1994.

Herrera subsequently underwent a battery of tests and was referred to an orthopedist, Dr. Smith. On August 19, 1994, Dr. Smith diagnosed Herrera’s condition as “upper extremity overuse type problems.” Nonetheless, he concluded that she should be able to perform her regular job.

Herrera once again began job hardening, which involved gradually increasing her hours on the line by one hour a day. This program exacerbated Herrera’s symptoms, and she continued to complain to Dr. Dean of increased pain in her upper extremities. In late December 1994 Dr. Dean concluded that Herrera was suffering from chronic pain syndrome and suggested possible job restriction alternatives or a pain clinic referral. A few days later, on January 4, 1995, Herrera was terminated from her job for an allegedly third unexcused absence.

On May 5, 1995, Herrera filed a claim for worker’s compensation benefits, alleging an injury to her whole body from repetitive overuse of the arms, legs, and torso. IBP answered, claiming the petition was untimely under section 85.26.

Herrera took the position at the hearing before the deputy industrial commissioner that her injuries occurred on January 4, 1995, the date upon which she was terminated. The deputy adopted this date as the date of injury, determined the amount of industrial disability, and awarded permanent partial disability benefits. Upon appeal to the industrial commissioner, the commissioner held that the date of injury was March 31, 1993, making the petition filed more than two years later time barred. The commissioner reasoned that March 31, 1993 was the first date that Herrera sought medical treatment, making that the date of injury under Thilges v. Snap-On Tools, 528 N.W.2d 614, 618 (Iowa 1995). She also found that the work restrictions placed on Herrera as a result of that doctor visit constituted an impact on employment, meeting the date-of-injury test of Venenga v. John Deere Component Works, 498 N.W.2d 422, 425 (Iowa Ct.App. 1993). Finally, the commissioner ruled that as of March 31, 1993 Herrera knew her injury “was both serious and causally related to work,” thereby satisfying the date-of-injury test set forth in Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992). The commissioner’s decision made it unnecessary for her to decide whether Herrera was entitled to benefits and, if so, the amount of such benefits.

Herrera filed a petition for judicial review in the district court. The district court ruled that the commissioner’s finding as to the date of injury was based upon an improper interpretation of section 85.26 and governing case law and was not supported by substantial evidence. Applying the Tasler test, the district court ruled that it was not until Herrera tried to return to her old job in March 1994, but could not successfully do so, that a reasonable person, in her position, would have realized that the injury would have a permanent impact on her employment. The district court held that March 9, 1994 was the date of injury, and Herrera’s petition, filed within two years of that date, was timely. The court reversed the industrial commissioner’s decision and remanded the case for a determination of Herrera’s entitlement to benefits.

II. Scope of Review.

Our review is governed by Iowa Code chapter 17A, Iowa’s Administrative Procedure Act. See Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 436 (Iowa 1997). Section 17A.19 permits a reviewing court to reverse an agency decision when it is “[i]n violation of constitutional or statutory provisions,” or when it is “unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole.” Iowa Code § 17A.19(8). An appeal of a district court’s ruling on judicial review of an agency decision “is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function.” Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000). The commissioner’s factual findings are binding on us if they are supported by substantial evidence. See IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001).

III. Applicable Legal Principles.

This court adopted the “cumulative injury rule” in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). We held that when a disability develops over a period of time, the compensable injury is held to occur when the employee, “because of pain or physical inability,” can no longer work. McKeever, 379 N.W.2d at 374. The date such an injury occurs is important because it impacts the determination of “which employer and carrier is at risk, whether notice of injury and claim are within the statutory period, whether statutory amendments were in effect, which wage basis applies, and other important considerations.” Thilges, 528 N.W.2d at 618. Although the date of injury is relevant to notice and statute-of-limitations issues, the cumulative injury rule is not to be applied in lieu of the discovery rule. See McKeever, 379 N.W.2d at 372-73. As we said in McKeever, although “[tjhese two rules are closely related, ... they are not the same.” Id. Thus, although an injury may have occurred, the statute of limitations period does not commence until the employee, acting as a reasonable peüsoE-⅛ recognizes its “nature, seriousness and"' probable compensable character.” Orr v. Leiois Cent. Sch. Dist., 298 N.W.2d 256, 257 (Iowa 1980) (applying discovery rule to workers’ compensation actions).

The McKeever “missed-work” test was later refined in Tasler, where we endorsed an analysis of more general applicability. In Tasler, we adopted the manifestation test, fixing the date of injury “as of the time at which the ‘disability manifests itself.’ ” 483 N.W.2d at 829 (quoting IB Arthur Larson, Workers’ Compensation Lato § 39.10 (1991)). We held that an injury manifests itself when both “ ‘the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person.’ ” Id. (quoting Peoria County Belwood Nursing Home v. Indus. Comm’n, 115 Ill.2d 524, 106 Ill.Dec. 235, 238, 505 N.E.2d 1026, 1029 (1987)).

This court had the opportunity to apply the manifestation test in the case of George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997). In that case we declined to add a third element — compens-ability — to the test. Jordan, 569 N.W.2d at 152. We also held that a permanency rating is not a prerequisite for meeting the manifestation test. Id. Nonetheless, in upholding the agency’s date-of-injury finding, we noted that on the date chosen by the agency — October 1, 1991 — the employee had “knowledge of the permanent impairment to his shoulder” and realized “the causal impact that injury would have on his job.” Id. (emphasis added); accord Venenga, 498 N.W.2d at 425 (stating, “more is required than knowledge of an injury or receipt of medical care. The employee must realize his or her injury will have an impact on employment.”). We also observed that it was not until this date that the employee learned “that he would not recover from the cumulative injury to his shoulder, and that permanent restrictions on his work activities would be required.” Jordan, 569 N.W.2d at 152 (emphasis added).

Although we accurately stated in Jordan that the cumulative injury rule/manifestation test has only two elements — knowledge of injury and its causal relationship to employment, our discussion addressed essentials of the discovery rule — impact on employment and permanency. We take this opportunity to reaffirm what we said in McKeever, that these tests, while related, are distinct. The preferred analysis is to first determine the date the injury is deemed to have occurred under the Tasler test, and then to examine whether the statutory period commenced on that date or whether it commenced upon a later date based upon application of the discovery rule.

To summarize, a cumulative injury is manifested when the claimant, as a reasonable person, would be plainly aware (1) that he or she suffers from a condition or injury, and (2) that this condition or injury was caused by the claimant’s employment. Upon the occurrence of these two circumstances, the injury is deemed to have occurred. Nonetheless, by virtue of the discovery rule, the statute of limitations will not begin to run until the employee also knows that the physical condition is serious enough to have a permanent adverse impact on the claimant’s employment or employability, i.e., the claimant knows or should know the “nature, seriousness, and probable compensable character” of his injury or condition. Orr, 298 N.W.2d at 257. We turn now to an application of these principles to the facts of this case.

IV. Discussion.

A. Cumulative injury rule. Application of this rule requires a determination of when Herrera knew that she suffered from a condition or injury and that it was caused by her employment. The industrial commissioner found that these requirements were satisfied on March 31, 1993, when Herrera saw Dr. Dean, complaining of pain in her left wrist, both arms, her shoulders, and her neck. Herrera testified at the hearing that Dr. Dean told her at this visit that she again had an overuse syndrome caused by her work. Based on this testimony, we think there is substantial evidence in the record to support the industrial commissioner’s finding that Herrera knew on March 31,1993, that she was suffering from a cumulative injury and that it was work related. Therefore, the industrial commissioner correctly held that March 31, 1993 was the date of injury for purposes of the cumulative injury rule.

B. Discovery rule. We turn now to an examination of the commissioner’s ruling that the statute of limitations began to run on the date Herrera’s cumulative trauma injury occurred. For purposes of applying the statute of limitations in this case, it is not necessary to determine the exact date upon which Herrera “discovered” her injury. Instead, we need only decide whether there is substantial evidence to support a finding that she knew the nature, seriousness and probable com-pensable character of her injury within two years of the date she filed her petition for benefits — May 5,1995.

As we have established, Herrera’s cumulative trauma injury occurred on March 31, 1993. The industrial commissioner found that on this date Herrera knew her injury was serious because work restrictions were imposed. We find nothing in the record, however, that would support a conclusion that a reasonable person in Herrera’s position would have been aware of the seriousness of her condition and its impact on her employment at that .time.

It is important to recall that Herrera had a prior history of similar problems that had resolved with conservative treatment within four months. The district court correctly observed that “[w]hen the [employee] presented on March 31, 1993 with similar pain, a reasonable person would expect that after treatment and light duty, the problems would again resolve, with little or no impact on her employment.” This conclusion is supported by the medical records, which reveal that Herrera did indeed make slow but steady progress so that by January 1994 her condition had improved to the point that she began work hardening. Moreover, during this period, Dr. Dean did not feel that she had any permanent injury.

We conclude that there is not substantial evidence in the record to support the commissioner’s finding that the statute of limitations began to run on March 31, 1993. As we have previously stated, we do not find it necessary to identify the exact date that Herrera knew the seriousness of her condition. It is sufficient for purposes of the issue before us to state that the record does not support a finding that Herrera knew or should have known this fact before May 5, 1993. Consequently, the record would only support a finding that Herrera discovered her injury sometime after this date, thereby rendering her petition, filed two years later, timely.

V. Conclusion and Disposition.

A cumulative' injury occurs when a reasonable employee would plainly be aware that he or she suffers from a condition or injury causally related to his or her employment. Under this test, we conclude there is substantial evidence to support the commissioner’s finding that this awareness occurred on March 31, 1993, when Herrera saw Dr. Dean and was told she had a repetitive use condition caused by her work.

Notwithstanding our conclusion that the commissioner correctly determined that Herrera’s cumulative injury occurred more than two years before she filed her petition for benefits on May 5,1995, we reverse the commissioner’s ruling that Herrera’s claim for benefits was untimely. There is not substantial evidence in the record to support a finding that Herrera knew or should have known before May 5, 1993 that her injury was serious. Therefore, Herrera discovered her injury within two years of filing her petition, thereby satisfying the two-year statute of limitations imposed by section 85.26.

We affirm the district court’s reversal of the commissioner’s dismissal of Herrera’s petition. We remand for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

All justices concur except NEUMAN, J., who concurs in result only. SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . Herrera also filed a petition for benefits based on a back injury sustained on October 14, 1992. That claim is not at issue in this appeal.


author: CARTER, Justice.

text:
    Roger WELTZIN, Arnold L. Noe, and Roland W. Riensche, for Themselves and All Other Shareholders of La Porte City Cooperative Elevators, Appellants, v. COBANK, ACB, and Kenneth D. Grant, Appellees.
    No. 99-0691.
    Supreme Court of Iowa.
    Sept. 6, 2001.
    Boyd J. Milroy of Milroy, Eckhart & Thompson, Vinton, for appellants.

      Joseph M. Barron and John M. Wharton of Peddicord, Wharton, Spencer & Hook, P.C., Des Moines, for appellees.

       Senior Judge assigned by order pursuant to Iowa Code section 602 .9206 (2001).

   CARTER, Justice.

Roger Weltzin, Arnold L. Noe, and Roland W. Riensche, for themselves and other shareholders of the La Porte City Cooperative Elevator (Coop), who have sued as a class, appeal from an adverse summary judgment in their action against Cobank, ACB (Cobank), a federally chartered lending institution, and Kenneth D. Grant, a loan officer of Cobank. The shareholder class had alleged that the defendants were negligent and breached their fiduciary duty in business transactions with the Coop. The district court granted summary judgment to defendants on the ground that they owed no duty to the Coop with respect to the alleged acts of misfeasance and nonfeasance. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Plaintiffs are former shareholders of the Coop. The defendants are Cobank, ACB and Kenneth D. Grant, Cobank’s assistant vice-president. Cobank provided financing to the Coop during the time period relevant to this appeal. Mr. Grant was the loan officer responsible for dealing with the Coop.

The record on the summary judgment motion discloses the following undisputed facts. Defendants entered into a master loan agreement with the Coop on July 6, 1995. In a letter dated July 29, 1996, from Grant to the Coop, he explained that Co-bank needed to address the Coop’s failure to comply with loan covenants pertaining to fixed asset purchases and working capital. He stated that Cobank had waived its right to accelerate the Coop’s current repayment schedule based on a review of the Coop’s overall financial position. Grant shared his concerns about the Coop’s financial position with the Coop’s manager, Michael Nail, and the Coop’s directors. Grant discussed the Coop’s lack of profitability and inability to service term debt. He offered an opportunity to rebuild the Coop’s working capital through a term revolver loan. The Coop entered into such a loan agreement with Cobank.

In late 1996 and continuing into early 1997, Nail engaged in a series of speculative trades on the Chicago Board of Trade on the Coop’s behalf. The trades, which left the Coop in desperate financial condition, violated the Coop’s grain merchandising risk management policy. Based in part on the advice of Grant and Cobank, the Coop elected to sell its assets to East Central Iowa Cooperative. Plaintiffs commenced this shareholders-derivative action against these defendants and against Nail and several former directors and officers.

I. Standard of Review.

This court reviews a district court’s ruling on a motion for summary judgment for correction of errors at law. Iowa R.App. P. 4; Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000); Keokuk Junction Ry. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000). This “court will affirm if the entire record including pleadings, discovery, and affidavits on file show there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law.” Keokuk Junction Ry., 618 N.W.2d at 356 (citing Iowa R. Civ. P. 237(c)). “A genuine issue of material fact is lacking when a reasonable jury or judge could conclude that no evidence entitles the nonmoving party to relief.” Id. (citing Baratta v. Polk County Health Servs., Inc., 588 N.W.2d 107, 109 (Iowa 1999)). This court reviews the entire record in the light most favorable to the nonmoving party. Crippen, 618 N.W.2d at 565.

II. Whether the District Court Properly Followed Applicable Rules of Law in Considering Defendants’ Motion For Summary Judgment.

A. Arguments. Plaintiffs assert that the district court did not view the record in the light most favorable to plaintiffs. They contend that the district court either disregarded all of the portions of the record which indicated that a relationship of trust or confidence existed between the Coop and defendants or the court inappropriately weighed the evidence. Plaintiffs argue that the court entirely ignored the affidavit from plaintiffs’ expert. Lastly, plaintiffs claim that the court erred because it did not dispose of each ground raised by defendants’ motion and plaintiffs’ resistance by separate ruling.

Defendants contend that the district court correctly granted its motion for summary judgment because the evidence is insufficient, as a matter of law, to establish any fiduciary relationship between the Coop and defendants. Defendants assert that plaintiffs failed to show that anything defendants did or failed to do constituted negligence.

B. Analysis. It does not appear that the district court violated applicable rules of law in ruling on defendants’ motion for summary judgment. Whether defendants owed fiduciary duties or other duties under tort or contract law to the Coop are issues that can be properly resolved through summary judgment. This court has acknowledged that negligence cases, which are generally fact-driven, are not commonly resolved through summary judgment. Walls v. Jacob North Printing Co., 618 N.W.2d 282, 284 (Iowa 2000). However, this court stated that “[wjhether a particular duty arises out of the parties’ relationships is a matter of law properly resolved in a summary judgment proceeding.” Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 649 (Iowa 2000); see also Teunissen v. Orkin Exterminating Co., 484 N.W.2d 589, 591 (Iowa 1992).

The order granting summary judgment addresses the requisite elements for granting such a motion. The court specifically identified defendants’ grounds for summary judgment. The court acknowledged plaintiffs’ statement of disputed facts and explained that it had considered the evidence in the light most favorable to plaintiffs. The court concluded that defendants were entitled to judgment as a matter of law because “the facts are insufficient to support a legal conclusion that defendants Cobank, ACB and Kenneth D. Grant have a duty to the plaintiffs under theories of contract, tort or breach of fiduciary duty.”

Plaintiffs claim that the court erred because it did not expressly state that there were no genuine issues of material fact. Although the court is required to make this determination, it is not required to specifically state that it did so in the actual order. The court stated in its order that it considered the evidence in the light most favorable to plaintiffs before reaching the conclusion that the facts were insufficient to support plaintiffs’ claims.

Plaintiffs rely on Iowa Rule of Civil Procedure 113 and case law in arguing that the district court erred in its summary judgment ruling because it did not dispose of each ground raised in defendants’ motion and plaintiffs’ resistance. Rule 113, entitled “Specific rulings required,” provides: “A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.” Iowa R. Civ. P. 113. Plaintiffs further rely on this court’s explanation of the requirements for a summary judgment ruling provided in City of Eldridge v. Caterpillar Tractor Co., 270 N.W.2d 637 (Iowa 1978). This court explained, “The court will consider each alleged ground for summary judgment, and in accord with rule 118, dispose of each ground by separate ruling.” Id. at 641. We are not persuaded that the district court failed to follow applicable rules of law in addressing defendants’ summary judgment motion.

III. Whether the District Court Erred in Determining That Defendants Did Not Owe Fiduciary Duties to Plaintiffs.

A. Arguments. Plaintiffs argue that a relationship of trust or confidence or a fiduciary relationship existed between defendants and the Coop. They claim that defendants breached their fiduciary duties to plaintiffs by failing to disclose to the Coop’s directors the implications associated with borrowing from defendants and for failing to disclose defendants’ knowledge of the mismanagement of the Coop. They also claim that defendants breached their fiduciary duty to plaintiffs by interfering with the business of the Coop by encouraging the Coop to merge with East Central Iowa Cooperative. Plaintiffs argue that they disagree with defendants about the facts related to whether there was a fiduciary relationship.

Defendants argue that its transactions with the Coop did not give rise to a fiduciary relationship. Defendants assert that imposing fiduciary duties in this situation goes beyond the banker-borrower relationship it had with the Coop and improperly implies that defendants were obligated to police the internal operations of the Coop.

B. Analysis.

1. Components of fiduciary relationships. Plaintiffs are accurate in identifying several jurisdictions that have recognized that a fiduciary relationship or relationship of trust or confidence may exist between a bank and borrower. This court, as well as the Iowa Court of Appeals, has also recognized that fiduciary relationships may exist between banks and borrowers. See, e.g., Engstrand v. West Des Moines State Bank, 516 N.W.2d 797 (Iowa 1994); Sinnard v. Roach, 414 N.W.2d 100 (Iowa 1987); Kurth v. Van Horn, 380 N.W.2d 693 (Iowa 1986); Irons v. Cmty. State Bank, 461 N.W.2d 849 (Iowa Ct.App.1990). However, this court has made clear that fiduciary duties are not automatically implicated in a banker-borrower relationship. Engstrand, 516 N.W.2d at 799; Kurth, 380 N.W.2d at 696-98. This court stressed that determining whether this type of fiduciary relationship exists requires evaluation of the particular facts and circumstances involved in each case. Kurth, 380 N.W.2d at 696.

In Kurth this court was confronted with the issue whether a fiduciary relationship existed between a bank and an individual who cosigned a note for another and secured the note with a mortgage on his farmland. 380 N.W.2d at 694. This court analyzed the components of fiduciary relationships. Id. at 695-96. Relying on Restatement (Second) of Torts commentary, this court explained that “[a] fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” Id. at 695 (citing Restatement (Second) of Torts § 874 cmt. a, at 300 (1979)). This court also provided the following alternate definition of fiduciary relationship:

A very broad term embracing both technical fiduciary relations and those informal relations which exist wherever one man trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. A “fiduciary relation” arises whenever confidence is reposed on one side, and domination and influence result on the other; the relation can be legal, social, domestic, or merely personal. Such relationship exists when there is a reposing of faith, confidence and trust, and the placing of reliance by one upon the judgment and advice of another.

Id. at 695 (citing Black’s Law Dictionary 564 (5th ed.1979) (citations omitted)). Factors indicating that a fiduciary relationship may exist “include the acting of one person for another; the having and the exercising of influence over one person by another; the reposing of confidence by one person in another; the dominance of one person by another; the inequality of the parties; and the dependence of one person upon another.” Id. (citing First Bank of Wakeeney v. Moden, 235 Kan. 260, 681 P.2d 11, 13 (1984) (per curiam)).

2. Whether Cobank was in a fiduciary relationship with the Coop with respect to the alleged misfeasance and non-feasance. The allegations of the petition directed at Cobank and Grant allege that they were negligent and breached a fiduciary duty in failing to act to (a) analyze the records received from the Coop, (b) note discrepancies regarding grain transactions in the Coop’s quarterly reports, (c) seek additional financial information that was required to evaluate the Coop’s financial condition, and (d) notify the officers and directors of the Coop of its true financial situation. In addition to these acts of omission, it was alleged that Cobank and Grant improperly pressured and influenced the Coop to sell its assets to East Central Iowa Cooperative. In analyzing the legal relationships that existed between Cobank and the Coop, we are convinced that the relationship was that of debtor and creditor.

In Globe Motor Car v. First Fidelity, 273 N.J.Super. 388, 641 A.2d 1136 (1993), a depositor alleged its bank was negligent in failing to manage, supervise, and control its business and financial practices. The court rejected that claim, finding that the plaintiffs claim presumed a fiduciary relationship typically not found between a bank and its customers. Globe Motor Car, 641 A.2d at 1138. The court determined that imposing a duty on a lender to manage, supervise, and control its depositor’s business affairs would be unreasonable and untenable. Id. A similar claim of fiduciary duty between a bank and its customer was rejected in Martinez v. Associates Financial Services, 891 P.2d 785, 788 (Wyo.1995). Although the cited cases involved a relationship between a bank and its depositor, we believe that, in a borrower-lender context, similar principles will prevail as to matters outside of the actual servicing of the loan.

Because we have concluded that no fiduciary relationship exists, plaintiffs’ claims of nonfeasance are subject to the rules stated in Restatement (Second) of Torts § 315 (1965), which declare that absent some special relationship there is no duty to control the conduct of a third person so as to prevent that person from causing harm to another. We have applied this principle from the Restatement in Fitzpatrick v. State, 439 N.W.2d 663, 667 (Iowa 1989); Hildenbrand v. Cox, 369 N.W.2d 411, 416 (Iowa 1986); Smith v. State, 324 N.W.2d 299, 301-02 (Iowa 1982). The harm that befell the Coop came about from the acts of its manager, Nail. Neither Cobank nor Grant were obligated to protect the Coop against his misfeasance. The affidavit of plaintiffs’ so-called expert witness does not dissuade us from this view.

The claims that we have considered up to this point all involve an alleged failure to act by Cobank and Grant. One of plaintiffs’ allegations asserts a positive misfeasance on their part. That is the allegation that they unduly pressured and influenced the Coop to sell its assets to East Central Iowa Cooperative. In reviewing the grant of summary judgment as to that allegation, we may not uphold the district court on the basis of an absence of fiduciary duty. Even if Cobank and Grant were not in a fiduciary relationship with the Coop, they were under a duty not to exert improper pressure to compel the Coop’s directors to take a position that its officers and directors did not favor. As to this allegation, the motion for summary judgment must be determined under the principles explained in Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994).

In Griglione we stated that to obtain a grant of summary judgment on some issue in an action the moving party must either affirmatively establish the existence of undisputed facts entitling that party to a particular result or establish by means of appropriate discovery devices that the sum of the evidence available to the nonmoving party is legally insufficient to support the claim made. 525 N.W.2d at 813. Judged by this standard, we conclude that the grant of summary judgment on the claim of active misfeasance was also proper. It is impossible to conclude from a review of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits that the decision to sell the assets of the Coop to East Central Iowa Cooperative was other than a voluntary act prompted by the Coop’s dire financial straits that resulted from Nail’s speculative ventures.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . Plaintiffs’ claim against the Coop's directors and officers was recently addressed by this court in a separate action in Weltzin v. Nail, 618 N.W.2d 293 (Iowa 2000). This court affirmed the district court’s decision, finding that a right to a jury trial did not attach to this action in equity. Weltzin, 618 N.W.2d at 302-03. This court remanded the case to the district court for further proceedings on those claims. Mat 303.

      . In 1998 Iowa Rule of Civil Procedure 118 was redesignated as rule 113. See Iowa R. Civ. P. 113.


author: CARTER, Justice. NEUMAN, Justice

text:
    STATE of IOWA, Appellee, v. John Nell MITCHELL, Appellant.
    No. 99-0660.
    Supreme Court of Iowa.
    Sept. 6, 2001.

      Linda Del Gallo, State Appellate Defender, Dennis D. Hendrickson, Assistant State Appellate Defender, and John Nell Mitchell, pro se, Anamosa, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, William E. Davis, County Attorney, and Michael J. Walton, Assistant County Attorney, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   CARTER, Justice.

This appeal revisits a question with which this court has struggled on numerous occasions: When can the State use evidence of other bad acts in a prosecution for sexual abuse. A jury convicted defendant John Mitchell of three counts of second-degree sexual abuse in violation of Iowa Code sections 709.1 and 709.3 (1997) after hearing, over his objection, the testimony of two other victims of his alleged abuse. The court of appeals affirmed, concluding the district court did not abuse its discretion in allowing this other bad-acts evidence. On further review, we now reverse and remand for a new trial.

I. Background Facts and Proceedings.

Mitchell was originally charged in a six-count trial information with three counts of second-degree sexual abuse and three counts of indecent contact with a child, in violation of Iowa Code section 709 .12. The sexual-abuse charges arose out of Mitchell’s relationship with twelve-year-old Amy, the daughter of Mitchell’s then-girlfriend. Mitchell lived with Amy and her .mother. Amy alleged that Mitchell first touched her breasts and vagina over her clothes. She claimed the abuse quickly escalated, with Mitchell touching her under her clothes and attempting to penetrate her with his penis.

Prior to trial, Mitchell moved to sever these three counts from the remaining counts of indecent contact with a child. The other three counts involved three different victims. Two of the victims were eight and thirteen-year-old sisters, Susanna and Karen, who were Amy’s friends. They both alleged that Mitchell touched their breasts and vaginas, both over and under their clothes, when they spent the night with Amy in the apartment shared with Mitchell.

The court ultimately severed the six counts into three groups. The first trial included the three charges of second-degree sexual abuse involving Amy, referred to as counts I-III. Trial two covered the two charges of indecent contact with Susanna and Karen, referred to as counts IV and V. Count VI, involving a third victim, was eventually dismissed.

The appeal before us concerns only Mitchell’s alleged abuse of Amy. Mitchell moved in limine to exclude any testimony from Susanna and Karen regarding the allegations forming the basis for counts IV and V. Mitchell contended that the girls’ testimony would only be relevant to show propensity, and in any event, its potential prejudice would substantially outweigh any probative value. The State countered that the testimony was relevant to bolster Amy’s credibility. Mitchell’s cross-examination of Amy accused her of fabricating the allegations to break up his relationship with her mother.

The district court allowed each girl’s testimony. It first determined that the evidence was relevant. It then concluded that the testimony’s probative value was not outweighed by possible unfair prejudice to the defendant, given the State’s need for the evidence, the fact that the acts in question were not more sensational than the acts Amy testified to, and the fact Mitchell challenged Amy’s credibility on cross-examination. Prior to the girls’ testimony, the court gave the following limiting instruction:

[Y]ou are cautioned and instructed that we are now going to hear some evidence that is offered for a very limited purpose. The purpose is proof of motive, opportunity, preparation, plan, or absence of mistake or accident by the Defendant. This evidence, and I will instruct you this way at the close of the case, is not being admitted as proof that the Defendant did or did not commit the acts Plaintiff alleges in this case and you must not convict based on this evidence. It is offered and only may be considered for the limited purpose of proving the truth or falsity of [Amy’s] testimony.

A similar limiting instruction was given with other instructions at the close of all the evidence.

A jury convicted Mitchell of all three counts of second-degree sexual abuse. We transferred his appeal to the court of appeals, which affirmed. Mitchell applied for further review in light of our recent opinion in State v. Castaneda, 621 N.W.2d 435 (Iowa 2001), and we granted his application.

II. Issue on Appeal.

Mitchell’s appeal questions the reach of Iowa Rule of Evidence 404(b). This rule recognizes two fundamental principles: first, that evidence of other bad acts is relevant to whether a defendant committed the charged crime, and second, the reality that such evidence, while highly probative, is also highly prejudicial to a defendant. The rule attempts to balance these competing interests by presuming that “other crimes” evidence is inadmissible and placing the burden on the State to show the evidence is relevant for some purpose other than to show the defendant acted in a manner conforming to the other bad acts. See State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979) (“The purpose of the rule is to exclude from the jury’s consideration evidence which has no relevancy except to show the defendant is a bad person and thus likely committed the crime in question.”).

Mitchell contends the State has not met its burden here. Although the State argued at trial, and urges on appeal, that Susanna’s and Karen’s testimony was relevant to corroborate Amy’s testimony and bolster her credibility, Mitchell asserts that their testimony is nothing more than propensity evidence. By its very nature, the tendered proof suggested that Susanna and Karen were testifying truthfully, that Mitchell had previously abused them, and that Mitchell acted in conformity with this behavior by abusing Amy. Thus, Mitchell argues, the jury was able to use testimony of other bad acts for the exact purpose for which it is not allowed under rule 404(b): to show Mitchell’s bad character in order to prove that he acted in conformity therewith.

III. Application of Iowa Rule of Evidence 404(b).

As noted above, Iowa Rule of Evidence 404(b) controls the admissibility of prior bad-acts evidence, stating:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The alternative purposes listed in the rule are not exclusive. State v. Plaster, 424 N.W.2d 226, 228 (Iowa 1988). The important question is whether the disputed evidence is “relevant and material to some legitimate issue other than a general propensity to commit wrongful acts.” State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987); accord Castaneda, 621 N.W.2d at 440. If the challenged evidence is relevant to a legitimate issue in dispute, then it is prima facie admissible, regardless of any tendency to also establish a defendant’s bad character or propensity for committing bad acts. Plaster, 424 N.W.2d at 229.

Courts engage in a two-step process to determine whether such challenged evidence is admissible. First, the court must determine whether the evidence of other crimes or bad acts is relevant to a legitimate factual issue in dispute. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996). If the evidence is deemed relevant to a legitimate factual issue in dispute, the court must then decide if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Id.; Iowa R. Evid. 403. If the answer to the second question is yes, this overcomes the evidence’s prima facie admissibility, and the evidence must be excluded. Bayles, 551 N.W.2d at 604.

We have stated that these decisions invoke the district court’s sound discretion but have recognized that that discretion is circumscribed as follows:

“It should be recognized, however, that this is not a discretion to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that accused is a bad man and hence probably committed this crime, must be excluded. The leeway of discretion lies rather in the opposite direction, empowering the judge to exclude the other-crimes evidence, even when it has substantial independent relevancy, if in his judgment its probative value for this purpose is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial. Discretion implies not only leeway but responsibility. A decision clearly wrong on this question of balancing probative value against danger of prejudice will be corrected on appeal as an abuse of discretion.”

State v. Johnson, 224 N.W.2d 617, 621 (Iowa 1974) (quoting Edward W. Cleary, McCormick on Evidence § 190, at 453-54 (2d ed.1972)).

The State argues that the consequential fact in this case was Amy’s credibility. It distinguishes this issue of credibility from the general issue of credibility that attaches to every witness’s testimony by noting Mitchell’s implication, on cross-examination, that Amy fabricated her allegations to thwart Mitchell’s relationship with her mother. As in so many sexual abuse cases, Amy’s credibility was crucial to the State’s case because the evidence boiled down to “he-said” versus “she-said.”

As demonstrated here, the linchpin between the sisters’ testimony and Amy’s credibility is the premise that, if Mitchell abused Susanna and Karen, it was more likely that he abused Amy, and thus Amy was telling the truth. In other words, the only way the evidence could bolster Amy’s credibility was by proving that Mitchell was guilty of the crime. Consequently, the district court’s limiting instruction was self-nullifying.

Some of the same concerns involved in this case were present in Plaster, 424 N.W.2d at 228, in which we found prior bad-acts evidence to be relevant to the issue of consent in a sexual abuse case. That case, decided by a sharply divided court, is sufficiently distinguishable from the present case that it is not direct precedent standing in the way of our decision. The future applicability of Plaster in a factual situation similar to the one in that case now remains an open question.

The New Hampshire Supreme Court recently rejected an attempt to use other bad-acts testimony to bolster a victim’s credibility. See State v. Glodgett, 144 N.H. 687, 749 A.2d 283 (2000). We find the court’s reasoning persuasive and quote it here:

We reject the argument that the evidence of other sexual assaults was properly admitted to provide context to evaluate the complainant’s credibility in light of the defendant’s position that the assault never occurred. “Context, in this instance, is merely a synonym for propensity.” Absent a specific motive to lie that the evidence of uncharged sexual assaults, if believed, would rebut, the evidence is probative of the complainant’s credibility only if one concludes that the defendant committed the uncharged acts and infers that he committed the charged acts. “When, in this manner, an assumption based upon the defendant’s propensity toward certain action is the essential connection in the inferential chain supporting relevance, the evidence is inadmissible under Rule 404(b)

Id. at 289 (emphasis added) (quoting State v. Melcher, 140 N.H. 823, 678 A.2d 146, 150 (1996)). Other courts have reached similar conclusions. See People v. Sabin, 463 Mich. 43, 614 N.W.2d 888, 902 (2000) (rejecting use of prior-bad-acts testimony from another victim to bolster complainant’s credibility because not part of the “principal transaction” — the abuse of the victim of the charged acts); Evert v. Swick, 300 Mont. 427, 8 P.3d 773, 777 (2000) (testimony about prior bad acts from another victim not allowed under rule 404(b) when only reason offered is to bolster victim’s credibility and harm the defendant’s).

While we note that other courts have adopted a contrary view, e.g., Hardeman v. State, 247 Ga.App. 503, 544 S.E.2d 481, 485 (2001); Rigler v. State, 941 P.2d 734, 738 (Wyo.1997); Daniel v. State, 923 P.2d 728, 735 (Wyo.1996), we are convinced that doing so eviscerates the language and spirit of rule 404(b). A plea of not guilty in a criminal case places in issue the credibility of all the State’s witnesses. If the State is allowed to prevail on its theory that there is an independent relevancy to bad-acts evidence for credibility purposes, this doctrine could be invoked in nearly every criminal case.

Therefore, we hold the district court abused its discretion in admitting Susanna’s and Karen’s testimony concerning Mitchell’s prior bad acts because such testimony spoke to no legitimate fact besides Mitchell’s propensity to abuse young girls. Any other result would cause exclusion of prior-bad-acts evidence under 404(b) to become the exception rather than the rule.

IV. Conclusion and Disposition.

Because we conclude that the testimony of Susanna and Karen was not relevant to prove any legitimate fact other than Mitchell’s propensity to abuse young girls, we vacate the decision of the court of appeals, reverse the decision of the district court, and remand for a new trial. Our disposition of the case makes it unnecessary to address Mitchell’s ineffective-assistance-of-counsel claim.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except NEUMAN and TERNUS, JJ., who dissent.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

NEUMAN, Justice

(dissenting).

The decision whether to admit evidence of prior bad acts is necessarily a discretionary one dependant on the facts of each case. Given the facts before us, I cannot agree that admitting Susanna’s and Karen’s testimony of similar sexual abuse by Mitchell constituted an abuse of the trial court’s discretion. I therefore respectfully dissent.

The majority takes great pains to point out the role propensity plays in using Susanna’s and Karen’s testimony to bolster Amy’s credibility. However, we have consistently recognized that, as long as the disputed evidence speaks to a legitimate factual issue, the fact that it may also speak to propensity is immaterial; the evidence is admissible for that other purpose. See Castaneda, 621 N.W.2d at 440; Plaster, 424 N.W.2d at 229. So long as we recognize this distinction, we do not hasten the demise of the exclusionary principle embodied in rule 404(b) but allow the fact finder to evaluate all of the circumstances surrounding the abuse.

It is no coincidence that questions concerning prior bad acts often arise in cases of sexual abuse. These crimes, especially when committed against children, take place in secret, far from the view of witnesses who could corroborate the victims’ stories. Congress bore this fact in mind when it adopted Federal Rule of Evidence 414, making evidence of prior sexual assaults of children admissible for any purpose for which it is relevant in the prosecution of other sexual assault cases. Fed. R.Evid. 414(a). This rule recognizes the special nature of crimes of sexual abuse against children, and the fact that evidence of prior, similar actions is highly probative and relevant.

The relevance in this case is obvious. The fact that Susanna and Karen both testified that Mitchell touched them in places and ways similar to Amy makes it more likely that Amy was testifying truthfully about her own abuse at the hands of her mother’s boyfriend. This became an issue when Mitchell, on his cross-examination of Amy, attempted to establish a motive for Amy to fabricate her story. Mitchell introduced this issue and should not, in fairness, be allowed to escape the consequences. The State was well within its right to present evidence to counter his claim, and the district court correctly found the tendered proof was relevant. For these reasons, I would join those states that have affirmed the use of other bad acts evidence to counter a defendant’s allegation that a victim has fabricated claims of abuse. See Hardeman v. State, 247 Ga.App. 503, 544 S.E.2d 481, 485 (2001); Rigler v. State, 941 P.2d 734, 738 (Wyo.1997); Daniel v. State, 923 P.2d 728, 735 (Wyo.1996).

I also disagree with the majority’s conclusion that the evidence’s probative value is substantially outweighed by the danger of unfair prejudice to Mitchell. In order to properly engage in the balancing required by Iowa Rule of Evidence 403, I must start from the same premise as the court of appeals: the purpose of all evidence is to sway the fact finder. Moreover, in cases of child sexual abuse, most of the evidence, by its nature, will be shocking and at least somewhat prejudicial. Exclusion is required only when evidence is unfairly prejudicial and substantially outweighs its probative value. That is not the case here.

The State’s need for the evidence, the strength of Susanna’s and Karen’s testimony and the proofs strong connection to Amy’s credibility make the probative value of the girls’ testimony high. Granted the similar nature of the abuse makes the evidence more prejudicial. Its impact, however, was tempered by the court’s two limiting instructions, given both immediately prior to the testimony and as part of the jury instructions. The jury was well aware for what purpose it could consider the sisters’ testimony, and we must presume the jury followed the court’s instructions. Plaster, 424 N.W.2d at 432.

Given all of these factors, I cannot say that Mitchell met his burden of showing that any prejudice substantially outweighed the testimony’s probative value. The majority’s holding to the contrary merely rewards Mitchell for attacking his victim and once again leaving her defenseless. I would affirm the decision of the court of appeals and the judgment of the district court.

TERNUS, J., joins this dissent.

      . We have not used the victims’ true names in this opinion.

      . In a second jury trial, Mitchell was also convicted of one count of indecent contact with a child, in violation of Iowa Code section 709.12 (1997), based on the charge involving Karen. This conviction has not been challenged, and thus forms no part of this appeal.