author: MEIERHENRY, Justice.

text:
    2005 SD 63
    Mark D. FAUSCH, Plaintiff and Appellant, v. Zelmira P. FAUSCH, Defendant and Appellee.
    No. 23316.
    Supreme Court of South Dakota.
    Considered on Briefs April 25, 2005.
    Decided May 18, 2005.

      Michael B. Crew, Karen L. Crew of Crew & Crew, Sioux Falls, SD, for plaintiff and appellant.
    Catherine Y. Piersol, Piersol Law Office, Sioux Falls, SD, for defendant and appel-lee.
   MEIERHENRY, Justice.

[¶ 1.] This is a divorce action between Mark Fausch and Zelmira Fausch. On December 22, 2003, a partial Judgment and Decree of Divorce was granted to both parties on grounds of extreme cruelty. On May 5, 2004, an Amended Judgment and Decree of Divorce was entered which resolved the issues of property division, debt division, alimony and attorney fees. There are three points of dispute on appeal. First, Mark contends that the trial court’s failure to apply a lack of marketability discount to his business interests in three companies resulted in a clearly erroneous valuation. Second, Mark contends that the valuation of the third business based on his capital contribution to the business was clearly erroneous. Third, Mark contends that the award of alimony was an abuse of discretion because it was based on erroneous findings concerning Zelmira’s need for alimony. We affirm.

FACTS

[¶ 2.] Mark and Zelmira were married on December 5, 1980. During the marriage, they had three children, all of whom had reached the age of majority at the time of the divorce. Mark .is a physician and Zelmira has mainly been a full time wife and mother during the marriage. Mark is working as an interventional cardiologist with North Central Heart Institute and earning approximately $400,000 annually. He is 53 years old and in good health. Zelmira is 56 years old and suffers from hyperthyroidism, type two diabetes and divorce-related depression.

[¶ 3.] The parties moved to Sioux Falls, SD in 1997 when Mark accepted a position as a cardiologist at North Central Heart Institute P.C. (NCH Institute). At that time, NCH Institute was affiliated with Sioux Valley Hospital. NCH Institute later severed its affiliation, with Sioux Valley Hospital and entered into an agreement with Avera McKennan Hospital and a company called MedCath to build and operate a specialty hospital, Heart Hospital of South Dakota, in which each business entity was a one-third owner. Mark is a minority owner of NCH Institute.

[¶ 4.] In connection with these changes, the partner-owners of NCH Institute created three separate business entities: North Central Heart Real Estate, LLC (NCH Real Estate), Medical Development, LLC, and North Central Heart. Institute Holdings, LLC (NCHI Holdings). NCH Real Estate owns the building and land occupied by NCH Institute’s clinic operations in addition to approximately 10 acres of bare land. Medical Development owns two parcels of land adjacent to the land owned by NCH Real Estate. NCHI Holdings was formed to hold NCH Institute’s one-third ownership interest in the Heart Hospital of South Dakota. Mark is a minority owner in each business, having ownership interests ranging between 5% and 7%. Various other owners/members of NCH Institute hold the remaining interests in the companies.

ISSUES
I. Whether the trial court was clearly erroneous in its valuation of Mark’s interest in three companies in which he was a minority owner.
II. Whether the trial court’s division of the marital property was an abuse of discretion.
III. Whether the trial court’s - finding that Zelmira needed an alimony award of $8,000 per month is supported by the evidence.

STANDARD OF REVIEW

[¶5.] “[T]he valuation of property involved in a divorce proceeding will not be overturned unless it is clearly erroneous.” Priebe v. Priebe, 1996 SD 136, ¶ 8, 556 N.W.2d 78, 80. “Our standard of review of a trial court’s property division is that of an abuse of discretion.” Grode v. Grode, 1996 SD 15, ¶ 6, 543 N.W.2d 795, 799 (quotations and citations omitted). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” Id. ¶ 6, 543 N.W.2d at 800 (quotations and citations omitted). A trial court’s alimony award is also reviewed under the abuse of discretion standard. Urban v. Urban, 1998 SD 29, ¶ 8, 576 N.W.2d 873, 875.

Valuation of Business Interests

[¶ 6.] During the divorce' proceedings, the parties stipulated to the value of Mark’s interest in NCH Institute but disagreed as to the value of the three related businesses. Each party retained an expert to determine these values. On appeal, the valuation dispute regarding two of the entities, NCH Real Estate and Medical Development, is over the trial court’s failure .to apply a lack of marketability discount to Mark’s interests in these businesses. The valuation dispute over the third business, NCHI Holdings, involves the trial court’s rejection of the value as determined by a “buy-sell” provision in the company’s operating agreement. Instead, the trial court used the higher figure of Mark’s capital contribution as. the value of his interest in the company.

Lack of Marketability Discount

[¶ 7.] Both parties provided expert testimony as to the value of Mark’s business interests. In valuing NCH Real Estate and Medical Development, the experts arrived at significantly different figures. A major part of the disparity between the values of the two experts was the application of a 25% marketability discount on the part of Mark’s expert, Shelly Fossum, in comparison to 0% marketability discount used by Zelmira’s expert, John Wenande. The trial court adopted the value of Zelmira’s expert and did not apply a marketability discount. The reason for accepting the opinion of Zelmira’s expert was explained in the trial court’s decision as follows:

The valuation given to the property by defendant’s expert Mr. Wenande made the most sense. Mr. Wenande based his opinion on a $3.00 per square foot valuation. This value was based on the fact that thé entity had sold land to the Heart Hospital for $3.00 a foot in 1999, in 2002 had donated 4 acres to a charity and allocated $200,000 per acre or over $4.00 a square foot on its tax return, and had recently accepted an offer of $2.75 a square foot for some of the land. Mr. Wenande also testified that a 10% discount for lack of control should be given, but an additional 25% discount for lack of marketability was inappropriate in a divorce case where no sale is contemplated... .Adjusting Mr. Wenande’s numbers to take the taxes into account, I find Dr. Fausch’s interest in NCH Real Estate LLC is worth $154,400. Medical Development is an entity that owns land held for development. Accepting Mr. Wenande’s values for the reasons stated above, I find Dr. Fauseh’s -interest to be $175,000.

[¶ 8.] Mark argues that it was error for the court not to apply a marketability discount. Although acknowledging that a marketability discount may not always be appropriate, Mark claims that rejecting one in this case was error because of the underlying premise of Wenande.’s opinion. Wenande opined that it was not appropriate to apply the discount in a divorce case if the business was not going to be sold. Mark argues that since the task of the expert is to determine and provide the fair market value of the business, an expert’s opinion must establish the price at which a willing seller would sell to a willing buyer. If the price involves a discount for lack of marketability, Mark claims that the discount should be factored into the property valuation regardless of whether a sale of his interest is or is not intended.

[¶ 9.] We have acknowledged that fair market value is “the price a willing buyer would pay a willing seller, both under no obligation to act.” First Western Bank Wall v. Olsen, 2001 SD 16, ¶ 17, 621 N.W.2d 611, 617. We have also approved of applying a discount in a divorce case where no immediate sale is contemplated. See Priebe, 1996 SD 136 at ¶ 19, 556 N.W.2d at 83 (affirming the application of a 40% minority discount in a divorce case). We stated in Priebe that “the determination of whether to apply a minority discount depends upon the evidence presented in each case. In other words, this is an issue that must be dealt with by trial courts on a ease:by-case basis.” Id. ¶ 17, 556 N.W.2d at 82. The relevant evidence in this context is whether a willing buyer would actually require a discount and to what degree.

[¶ 10.] In this case, the trial court found: “A 10% discount of lack of control should be given, but an additional 25% discount of lack of marketability is inappropriate in a divorce case where no sale is contemplated.” If the trial court intended this as a legal conclusion applicable to all divorce cases, it is erroneous. We have not adopted a bright line rule prohibiting marketability discounting in a divorce case where a sale is not contemplated. Whether or not it is fair or appropriate to apply a discount in a divorce case where no immediate sale is contemplated is for the trial court to determine based upon the -evidence of the case. Id. See also Hayes v. Hayes, 756 P.2d 298, 300 (Alaska 1988) (where a witness “testified that no minority discount was appropriate in a divorce settlement context because generally there is no change of ownership,” the Alaska court rejected this view as a matter of law); Kalisch v. Kalisch, 184 A.D.2d 751, 585 N.Y.S.2d 476, 479 (N.Y.App.Div.1992) (abrogated on other grounds by, McSparron v. McSparron, 87 N.Y.2d 275, 639 N.Y.S.2d 265, 662 N.E.2d 745 (1995)) (modifying a trial court’s determination of the value of a husband’s interest in a closely-held corporation because the trial court improperly failed to discount the value of the company to reflect the lack of marketability of its stock); Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603, 606 (1986) (providing that a trial court may consider, among other things, the marketability of the shares when determining the fair market value of a business); Matter of Marriage of Tofte, 134 Or.App. 449, 895 P.2d 1387, 1392 (1995) (finding that it was proper to apply a lack of marketability discount regardless of whether husband intended to sell).

[¶ 11.] Nonetheless, since we review a trial court’s valuation under a clearly erroneous standard, we must determine, in this instance, if the failure to apply a marketability discount to Mark’s interest was error. We have said that the fair market value is “the price a willing buyer would pay a willing seller, both under no obligation to act.” First Western Bank Wall, 2001 SD 16 at ¶ 17, 621 N.W.2d at 617. Here, the experts disagreed. Mark’s 'expert testified that any potential buyer of Mark’s interests in the two businesses would demand a discounted price due to the minority status of the interests. She determined that a 25% discount would be appropriate. Zelmira’s expert testified primarily as to his opinion that a discount was inappropriate or unfair in these situations. He also provided testimony as to what, if. any, discount a willing buyer would require. He stated:

[I]f you did look at marketability discount, ■ I would look at the number of people who are most likely willing and waiting to buy those interests, that being the other physicians who have money and reason to acquire interest in these properties.

He further explained that there were no restrictions on who may purchase the interests in the two businesses and that anyone could offer to buy them subject only to the entity’s right of first refusal. He finally stated: “It would be an attractive investment and I would fully expect the doctors themselves would not want that to go outside of their group.”

[¶ 12.] This testimony effectively rebuts the proposed application of a marketability discount. Consequently, there was evidence before the trial court that a sale of Mark’s interest may not be subject to a marketability discount. We cannot say that the court’s decision not to apply a discount is clearly erroneous. See Christians v. Christians, 2001 SD 142, ¶ 12, 637 N.W.2d 377, 380 (“Although a trial court is not required to accept either party’s proposed valuation, the value must be within the range of evidence presented to the court.”).

Failure to Use the Buy Back Formula to Determine Value

[¶ 13.] The parties also dispute the value of the third business, NCHI Holdings. The operating agreement of this company contains a “buy-sell” provision, which requires the company to buy out an owner that wants to sell his/her interest. This provision provides that the purchase price shall be determined by multiplying the book value of the company’s assets, less liabilities and undistributed profits, times the member’s sharing ratio. Mark claims the value of the company under the formula provided' is $1,457,675. Mark’s ■ sharing ratio ’ is 5.128205%. Therefore, under the formula, the amount that Mark would receive if his shares were sold back to the company would be $74,753. This was the valuation amount provided by Mark’s expert. Zel-mira’s expert, however, concluded that Mark would likely receive the amount of his original capital contribution because the amount under the formula in the operating agreement was less than his capital contribution. His capital contribution was $93,256, and Zelmira’s expert set that figure as the fair market value of Mark’s interest. The expert’s report explains this decision as follows:

Use of the original capital contribution is based on a discussion with Kathy Haber-ling, administrator at NCHI, who indicated that an existing owner-physician would likely be paid no less than their original contribution. .

He further explained this in his testimony at trial by saying:

I believe it is only common sense when a new doctor comes in today, they will have to put in as a contribution as a minimum what the original founding doctors put in and thus for [Haberling] to conclude that they would likely pay out that original contribution even if the book value computation was less, to me was only common sense.

He also stated that a buy-sell agreement “clearly is not designed to represent fair market value;” because if the entire business was sold not just one individual’s interest the buy-sell formula would not apply.

[¶ 14.] Given Wenande’s explanations, we cannot say the trial court’s adoption of his valuation was clearly erroneous. Although the agreement provided for a specific buy back price if Mark would choose to sell, the expert based his opinion on the hospital administrator’s belief that Mark most likely would be paid his original capital contribution. In addition, the buy back provision would not apply in the event of a total sale of the business by all owners. Therefore, the valuation adopted by the trial court for Mark’s business interest in NCHI Holdings was not clearly erroneous. Division of Property

[¶ 15.] On appeal, Mark’s assertion of error as to the trial court’s ■ division of property is based entirely upon his contention that the trial court’s division of property relied upon erroneous asset valuations. We have found that the trial court’s valuations were not clearly erroneous. A trial court’s ultimate division of property is subject to the abuse of discretion standard of review. Abrams v. Abrams, 516 N.W.2d 348, 352 (S.D.1994). “ ‘The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991) (quoting Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984)) (additional citations omitted). The trial court made an equal division of the property. Therefore, we find that the trial court’s division of the marital property was not an abuse of discretion.

Alimony

[¶ 16.] Mark also takes exception to the trial court’s alimony award. Zelmi-ra requested $9,500 per month in alimony. Mark testified that she would need only $5,000 per month. The trial court awarded $8,000 per month “[a]s Mrs. Fausch’s budget shows a need of $10,000 a month and she has income of $2,000.” Mark particularly challenges certain items in Zelmi-ra’s budget.

[¶ 17.] The amount and length of alimony payments are left to the discretion of the trial court. SDCL 25-4-41 gives the court discretion to grant “suitable allowance” to a spouse, “as the court may deem just, having regard to the circumstances of the parties represented .... ” The factors for a trial court to consider in exercising its discretion have long been established to include the following: “(1) the length of the marriage; (2) their respective earning capacity; (3) their respective financial condition after the property division; (4) their respective age, health and physical condition; (5) their station in life or social standing; and (6) the relative fault of the parties in the termination of the marriage.” Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977). “General alimony is an allowance for support and maintenance, with ‘its sole object the provision of food, clothing, habitation, and other necessaries for the support of a spouse.’ ” Urban, 1998 SD 29 at ¶ 7, 576 N.W.2d at 875 (quoting Wilson v. Wilson, 434 N.W.2d 742, 744 (S.D.1989)). A party requesting such alimony “ ‘must- establish that they have a need for support and that their spouse has sufficient means and abilities to provide for part or all of that need.’ ” Id. (quoting Fox v. Fox, 467 N.W.2d 762, 767 (S.D.1991)). “The trial court’s decision regarding alimony will not be disturbed absent an abuse of discretion.” Id. ¶ 8, 576 N.W.2d at 875.

[¶ 18.] In awarding alimony in this case, the trial court noted it was a long term marriage of 23 years. The trial court also found that Mark was receiving the appreciating business assets and would have a high income in the future. Zelmira, by comparison, was receiving assets which did not have appreciation potential and her earning capacity was limited because of her lack of skills and experience. (She had been a mother and homemaker during most of the long term marriage.) Both parties were in their fifties. Mark was in good health but Zelmira suffered from hyperthyroidism, type two diabetes and divorce related depression.

[¶ 19.] Mark contends that the trial court’s determination that Zelmira had a need for $10,000 per month was clearly erroneous. He specifically points to four separate items Zelmira listed in her monthly budget: a monthly allowance for life insurance, car payments, credit card/ loan payments and clothing for their adult children. Zelmira addressed her need for the insurance expense claiming it was for health insurance incorrectly labeled as life insurance. The defense pointed out a second listed health insurance expense for which she did offer an explanation. Although her explanation for the discrepancy is somewhat unclear, it was within the court’s province to weigh the credibility of her explanation. Concerning the credit card/loan payments, Mark claims that he was awarded all of the marital debt leaving no reason for her to include a debt payment in her budget. However, this argument ignores the trial court’s conclusion that certain joint debts “should be paid by the party who incurred the debt,” and it also overlooks the possibility that the court was allowing for Zelmira to carry a debt in the future. Mark also challenges the expenses for her car payments and for their adult children’s clothing. Whether these items are reasonable under the circumstances is left to the sound discretion of the trial court. In this case, it was not unreasonable for the trial court to allow budget items in the nature of gifts of clothing or other items to college age children; nor was it unreasonable to anticipate expenses for future vehicles. These activities and expenses would be normal for someone with her station and social standing in life. Therefore, the trial court’s alimony award was not an abuse of discretion. The trial court properly considered the relevant factors when determining the award, and its final award was reasonable and supported by the evidence.

Attorney Fees

[¶ 20.] Mark agreed to pay the attorney’s fees associated with the trial court proceedings. On appeal Zelmira has made a motion for appellate attorney fees of $3,469.94, the amount she submitted in her verified, itemized statement of legal services rendered. “In considering fees for the appeal, we must consider ‘the property owned by each party, their relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.’ ” Ameson v. Ameson, 2003 SD 125, ¶ 38, 670 N.W.2d 904, 917 (quoting Barnes v. Matzner, 2003 SD 42, ¶ 24, 661 N.W.2d 372, 379). Considering these factors along with the merits of the issues on appeal, we award attorney fees to Zelmira in the amount requested.

[¶ 21.] The trial court is affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Wenande’s report itself does not provide an explanation for the 0% lack of marketability discount. On cross examination, he gave the following explanation for not applying a discount:
      There is no clear cut rule from state to state or probably even from within the state from one courtroom to another. It is also a very debated topic in the valuation world at the National Business Valuation Conference last year, a CPA national conference. They devoted an entire session to a discussion on whether marketability discounts are appropriate in a divorce context and the issue — I don’t want to get too technical — but the issue essentially revolves around fairness to the parties. If there is no sale involved, you can say that under the standard fair market value you are asked to consider lack of marketability discounts. Under fairness within a divorce context where there is no sale, is it fair to the nonowner spouse to have their marital estate reduced by a marketability discount.

      I understand and could argue for a marketability discount but my own sense of a divorce standard, if you will, is not appropriate unless that interest is prospectively to be sold.

      . There was testimony that as the NCH Institute's Clinic Administrator, Haberling han-died many of the financial transactions of the business.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2005 SD 62
    Richard CRUTCHFIELD, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    No. 23157.
    Supreme Court of South Dakota.
    Considered on Briefs April 25, 2005.
    Decided May 18, 2005.

      James A. Eirinberg, Sioux Falls, SD, for petitioner and appellant.
    Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, SD, for respondent and appel-lee.
   SABERS, Justice.

[¶ 1.] Richard Crutchfield (Crutchfield) filed a second habeas corpus action claiming that his first habeas counsel was ineffective. The trial court found that Crutch-field failed to show that his first habeas counsel was ineffective. Crutchfield appeals and we dismiss.

Facts

[¶ 2.] Crutchfield pleaded guilty to one count of sexual contact with a child, after an incident with a thirteen-year-old girl that occurred on April 26, 1996. Crutch-field was sentenced to twelve years in prison. He was represented in the trial court by Gary Blue (Blue). Crutchfield filed a timely Notice of Appeal pro se, but failed to file an appellate brief. After the time allowed for filing the brief expired, this Court considered the ease to be abandoned and dismissed the appeal.

[¶ 3.] On October 20, 1998, Crutchfield filed his first application for a writ of habeas corpus. Jerry Pollard (Pollard) was appointed to represent Crutchfield. The petition alleged that Blue provided ineffective assistance of counsel, based on three grounds: 1) Blue allowed the use of a partially inaudible tape to establish a factual basis for Crutchfield’s guilty plea; 2) Blue failed to object to the State referring to a particular police interview; and 3) Blue advised Crutchfield to plead guilty when there was insufficient evidence to support the charges. A hearing was held before Circuit Court Judge Robert Timm. Judge Timm held that Crutchfield had entered a voluntary plea and that Blue was not “deficient.” Crutchfield did not appeal Judge Timm’s decision.

[¶ 4.] On January 10, 2002, Crutchfield filed a second application for writ of habe-as corpus. James Eirinberg was appointed to represent Crutchfield. The second petition raised two grounds for relief: 1) that Pollard denied him effective assistance of counsel; and 2) that his twelve-year prison sentence constituted cruel and unusual punishment.

[¶ 5.] In the amended petition, Crutch-field identified specific instances of ineffective assistance of counsel on Pollard’s part: (a) he failed to raise the issue concerning the voluntariness of the plea, (b) he failed to raise the issue alleging that Crutchfield attempted to withdraw his guilty plea, (c) he failed to raise the issue regarding Blue’s alleged failure to preserve Crutch-field’s appeal, (d) he failed to show that Blue could have called witnesses to impeach the State’s witnesses, (e) he failed to show that the waiver of the preliminary hearing was made without Crutchfield’s informed consent, (f) he failed to raise the issue of alleged altered or incomplete recordings of police interviews with Crutch-field, and (g) he failed to raise the issue regarding Blue’s failure to move to suppress evidence based on.Crutchfield’s contention that he requested counsel before his confession.

[¶ 6.] Circuit Court Judge Tim Tucker ruled that since the issue of cruel and unusual punishment was not raised in a direct appeal or prior habeas corpus action, it was barred by res judica,ta. He clarified that the issue can only be presented through a claim of ineffective assistance of counsel in the first habeas proceeding and allowed it to proceed in that manner. Judge Tucker ultimately held that the record does not establish that Pollard’s representation fell below an objective .standard of reasonableness or that there was gross error.

[¶ 7.] Judge Tucker issued a Restricted Certificate of Probable Cause, allowing Crutchfield to appeal the issue of ineffective assistance of counsel. Specifically, Crutchfield claims that Pollard was .ineffective for: 1) failing to prove that Blue had rendered ineffective assistance of counsel in his failure to move to suppress evidence; 2) for failing to prove that Blue had rendered ineffective assistance of counsel for his failure to pursue a direct appeal on Crutchfield’s behalf; and 3) failing to show that Blue rendered ineffective assistance of counsel in his failure to argue that the sentence constituted cruel and unusual punishment.

Standard of Review

[¶ 8.] “Our standard of review for a habeas appeal is well established. Habeas corpus is not a substitute for direct review.” Jackson v. Weber, 2001 SD 136, ¶ 9, 637 N.W.2d 19, 22 (citing Weddell v. Weber, 2000 SD 3, ¶ 13, 604 N.W.2d 274, 279). Habeas corpus is a “collateral attack upon a final judgment” and therefore our scope of review is limited. Id.

[¶ 9.] “A claim of ineffective assistance of counsel presents a mixed question of law and fact.” Coon v. Weber, 2002 SD 48, ¶ 10, 644 N.W.2d 638, 642 (citing Hofer v. Class, 1998 SD 58, ¶ 7, 578 N.W.2d 583, 585). Findings of fact are reviewed under the clearly erroneous standard and questions of law are reviewed de nqvo. Jackson, 2001 SD 136, ¶ 9, 637 N.W.2d at 22.

[¶ 10.] Whether Crutchfield is entitled to relief in his second habeas corpus action.

[Nil.] This Court has stated that defendants “shoulder a heavy burden of proof in their ineffective assistance of counsel claims.” Coon, 2002 SD 48, ¶ 11, 644 N.W.2d at 642. “They must prove ‘(1) that counsel’s representation, fell below an objective standard of reasonableness, and (2) that such deficiency prejudiced the defendant.’ ” Id. (quoting Rhines v. Weber, 2000 SD 19, ¶ 13, 608 N.W.2d 303, 307). At times, it is preferable. to consider the prejudice aspect first. See Hays v. Weber, 2002 SD 59, ¶ 16, .645 N.W.2d 591, 596 (noting that in order to determine whether counsel’s inaction was deficient, it is first necessary to show that the defendant was prejudiced). In addition, where there is no trial the defendant’s burden to show ineffective' assistance of counsel is increased. Coon, 2002 SD 48, ¶ 12, 644 N.W.2d at 643. The defendant must show “gross error” by counsel. Id.

Failure to suppress evidence

[¶ 12.] In this second habeas petition, Crutchfield alleges for the first time that he requested and was denied counsel prior to making statements to law enforcement. Based on this, he contends that Pollard was ineffective for failing to prove that Blue had rendered ineffective assistance of counsel in his failure to move to suppress his statements.

[¶ 13.] The trial court specifically found that Crutchfield’s claim that he requested counsel is not supported by the record. Judge Tucker’s Findings of Fact provides, in relevant part:

13. The Petitioner’s statement to the police was admissible. The Petitioner now claims for the first time in his second Habeas petition that he requested counsel prior to his statement. A review of the prior records in this case show there was not such request by the Petitioner. At the prior habeas hearings, when the issue of the interview came up during testimony, the Petitioner never claimed he was denied counsel.

It has not been shown that this finding by the trial court is clearly erroneous, therefore it has not been shown that Pollard rendered ineffective assistance of counsel for failing to prove that Blue was ineffective in his failure to move to suppress Crutchfield’s statements.

Failure of Blue to pursue an appeal

[¶ 14.] In Crutchfield’s first habe-as action the issue regarding Blue’s alleged failure to pursue a direct appeal was never raised. Crutchfield now asserts that Pollard was ineffective for failing to prove that Blue had rendered ineffective assistance of counsel for his alleged failure to pursue a direct appeal.

[¶ 15.] In making this claim, Crutchfield relies heavily on Loop v. Solem, 398 N.W.2d 140 (S.D.1986). In Loop, the defendant was charged with the offense of sexual contact with a child under fifteen years of age and was convicted by a jury. His attorney filed a timely Notice of Appeal but after reviewing the trial file he determined that there were no meritorious grounds for an appeal and did not file an appellate brief. The appeal was eventually dismissed for this reason. Loop then filed a writ of habeas corpus claiming ineffective assistance of counsel and we reinstated the direct appeal. Id. at 141.

[¶ 16.] Here, Crutchfield was not convicted by a jury, he pleaded guilty. Blue testified that after he found out that Crutchfield filed a Notice of Appeal himself, he asked Crutchfield to identify the issues that he wanted to appeal and then never heard back from him. Therefore, the facts are distinguishable and Crutch-field has not shown that he was prejudiced by Pollard’s failure to prove that Blue was ineffective for his failure to pursue a direct appeal.

Failing to argue that the sentence is cruel and unusual

[¶ 17.] Crutchfield asserts that Pollard was ineffective for failing to claim that Crutchfield’s sentence constitutes cruel and unusual punishment. He argues that regardless of whether Crutchfield informed him that he wanted to challenge his sentence on this basis, “[i]t should have been evident to a seasoned defense attorney that a twelve year sentence for an individual with virtually no criminal record and where the victim suffered no injury, was an arguable issue.”

[¶ 18.] This Court has held that: In reviewing sentences for violations of the Eighth Amendment, we utilize the “grossly disproportionate” standard. We determine whether a sentence is grossly disproportionate by considering the conduct involved in the crime, relevant past conduct of the defendant and we give “utmost deference to the Legislature and the sentencing court.”

State v. Mollman, 2003 SD 150, ¶ 30, 674 N.W.2d 22, 31 (citing State v. Pugh, 2002 SD 16, ¶ 19, 640 N.W.2d 79, 85).

[¶ 19.] Crutchfield, a 30-year-old man, admitted to having sexual contact with a 13-year-old girl, after giving her liquor to the extent that she became intoxicated. He pleaded guilty to one count of sexual contact with a child under the age of sixteen and was sentenced to twelve years in prison, which is within the statutory maximum.

[¶ 20.] Based on the. above, it has not been shown that Crutchfield’s sentence was grossly disproportionate. Therefore, Crutchfield has failed- to prove that he was. prejudiced by Pollard’s failure to challenge his sentence in his first -habeas corpus proceeding.

[¶ 21.] In addition to finding no merit to Crutchfield’s claims alleging ineffective assistance of counsel, relief in this second habeas action must be denied because Crutchfield has failed to show prejudice resulting from a- defect in his plea of guilty. In Jackson v. Weber we stated that “ineffective assistance of counsel at a prior habeas proceeding is not alone enough for relief in a later habeas action.” 2001 SD 136, ¶ 17, 637 N.W.2d at 23. Any subsequent habeas proceeding must be “directed to error in the original trial or plea of guilty.” Id. Therefore, under Jackson v. Weber, the defendant must show he received ineffective assistance of counsel resulting in prejudice in the main event. He must do so with evidence, an offer of proof or other adequate means. - ,

[¶ 22.] The issue is the effectiveness of Crutchfield’s first counsel and the prejudice, if any, resulting therefrom. Therefore, under Jackson, Crutchfield must show that he is entitled to relief because of prejudice resulting from a defect in his plea of guilty, which was' the main event. He must do so with evidence, an offer of proof or other adequate means. Since he has failed to show prejudice in the main event, his habeas appeal is dismissed.

[¶ 23.] GILBERTSON, Chief Justice, and, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . When asked about this issue during the second habeas corpus hearing, Blue testified as follows:
      Q: Are you sure that Mr. Crutchfield never talked about requesting an attorney be present prior to speaking with the police interviewer or just that you don't recall whether or not he did?
      A: No, he didn't tell me that he wanted an attorney present. He told me — even I think he sent a letter later that I sent to you saying something about he thought that [] the best thing to do was to cooperate.
      In addition, Pollard testified as follows:
      Q: Do you recall having any conversations with Mr. Crutchfield about the fact Mr. Crutchfield wanted to have an attorney present before he was interviewed by police?
      A: No. A lot of our conversations was Richard wanted to sue the county, he wanted a million dollars and he wanted me to represent him, so I would have to spend the time to explain to him that I was not a civil — I was not representing him in a civil matter, it was a Habeas Corpus, and I couldn’t do those things.

      . Blue testified as follows:
      Q: [] Did you ever meet with Mr. Crutch-field regarding his desire to appeal?
      A: As I recall I got a letter from him and sent him a letter and told him to outline what points he wanted to appeal, and that was the last I heard from him.


author: YON WALD, Circuit Judge.

text:
    2005 SD 61
    NORTHSTREAM INVESTMENTS, INC., Plaintiff and Appellant, v. 1804 COUNTRY STORE CO., Defendant and Appellee.
    No. 23216.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2005.
    Decided May 18, 2005.

      Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    James E. Carlon of Carlon Law Office, Pierre, South Dakota, Attorney for defendant and appellee.
   YON WALD, Circuit Judge.

[¶ 1.] .Northstream Investments, Inc. (Northstream) appeals from an order granting summary judgment in favor of 1804 Country Store Co. (1804). The trial court granted 1804’s motion for summary judgment, and dismissed Northstream’s complaint for foreclosure and collection on a loan agreement. Northstream claims that a genuine issue of material fact exists, and the trial court erred when it granted summary judgment. Reversed and remanded,

FACTS

[¶2.] In August 1991 the Comptroller of the Currency (Comptroller) issued a cease and desist order to Security Bank of South Dakota, N.A., (Security Bank). Paul Nordstrom (Nordstrom) was president of Security Bank and was, along with his family, the bank’s principal owner. Among other things the order prohibited Nordstrom from receiving any compensation that was not related to bank business. It also restricted Nordstrom from managing certain bank property. Security Bank consented to the order without admitting or denying any wrongdoing.

[¶ 3.] 1804 entered into a loan agreement with Security Bank on September 3, 1991. The agreement consisted of two promissory notes backed by a security agreement, a real estate mortgage, and a stock pledge. First National Bank of Pierre, South Dakota (First National) purchased part of Security Bank’s assets on May 26, 1992. This sale was carried out as part of a voluntary liquidation of Security Bank. The 1804 loan agreement was not one of the assets purchased by First National and remained in the hands of Security Bank.

[¶ 4.] In June 1992 Security Bank appointed Nordstrom as its liquidating agent. Security Bank notified Comptroller of its intent to liquidate and included notification of the asset purchase by First National. Comptroller acknowledged the voluntary liquidation and directed that it take place according to its Comptroller’s Corporate Manual. Notice of the liquidation and the sale to First National was published in the local newspaper as required.

[¶ 5.] Security Bank held a director’s meeting on December 22, 1992. The minutes of that meeting state that a motion was made to authorize Nordstrom to transfer the remaining assets of Security Bank to Northstream Investments, Inc. (Northstream) for an exchange of stock. Northstream was Security Bank’s holding company and as such the bank’s last remaining stockholder. The motion passed unanimously. Northstream claims the 1804 loan was one of the assets transferred to it at that point.

[¶ 6.] Nordstrom received notice from his attorneys on January 15, 1993 that the liquidation was complete. On January 21, 1993, Security Bank filed its final report with Comptroller. With that report it surrendered its original bank charter certificate.

[¶ 7.] Harvey Wald, an officer of 1804, contacted First National about the 1804 loan after seeing the public notice of the sale and liquidation of Security Bank. It was his understanding that First National then held all of Security Bank’s former assets. First National informed Wald that the 1804 loan was not one of the assets purchased from Security Bank.

[¶ 8.] Wald next contacted Nordstrom and was told that payment on the loan should be made to Northstream. Wald requested that Nordstrom provide written verification of an assignment between Security Bank and Northstream. Verification was never provided to Wald. 1804 made monthly payments to Northstream through October 1999. Northstream sent 1804 a notice of default and demand for payment in full on June 26, 2000. As of August 1, 2000 there was a principal sum of $131,610.09 still outstanding on the loan. That sum was accruing interest at the rate of 12 percent a year.

[¶ 9.] On August 3, 2000, Northstream commenced an action against 1804 to recover on the loan agreement. The complaint alleged that 1804 had defaulted on the loan. 1804 alleged in a motion for summary judgment that the loan was delivered in favor of Security Bank and the pleadings showed no assignment of the loan to Northstream. On October 20, 2000, Nordstrom recorded a written assignment of the 1804 loan from Security Bank to Northstream. The trial court denied 1804’s motion on November 24, 2003, and in its order provided “it appear[s] that a genuine issue of material fact exists as to the authority of Paul H. Nordstrom to act as a liquidating agent on October 20, 2000.”

[¶ 10.] Northstream filed its own motion for partial summary judgment on November 20, 2003 asserting there had been a valid assignment of the loan. Subsequently, 1804 filed a cross-motion for summary judgment claiming that there had been no valid assignment. The respective motions for summary judgment were heard on January 21, 2004, and in a continued hearing on February 4, 2004. The trial court entered its order granting summary judgment in favor of 1804 on February 18, 2004. Notice of entry of.the order was given to Northstream on February 19, 2004. Northstream filed a notice of appeal to this Court on April -8, 2004, asserting that genuine issues of material fact surrounding the validity of the assignment between Security Bank and Northstream do exist and, therefore, the trial court erred when it granted summary judgment to 1804.

STANDARD OF REVIEW

[¶ 11.] This matter is before the Court on appeal from a grant of summary judgment. Our standard of review for the grant or denial of a motion for summary judgment is well settled.

Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).

Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791 (quoting Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 7, 604 N.W.2d 289, 292). However, the nonmoving party must present facts showing that a genuine and material issue for trial exists. Cromwell v. Rapid City Police Department, 2001 SD 100, ¶ 7, 632 N.W.2d 20, 23.

ANALYSIS AND DECISION

[¶ 12.] Northstream asserts that the trial court erred when it granted summary judgment to 1804 and essentially determined that the loan between 1804 and Security Bank was not validly assigned. Northstream argues that a' valid assignment from Security Bank to Northstream was made during the Security Bank Board of Director’s meeting on December 22, 1992. According to Northstream, the document filed in October 2000 was merely a memorialization of the December 1992 assignment and was meant to give notice to future good faith purchasers as to what instruments Northstream held and the debt they secured.

[¶ 13.] 1804 asserts that no valid assignment was made between Security Bank and Northstream in December 1992. 1804 further argues that Nordstrom lacked the authority as liquidating agent to make an assignment to Northstream in October 2000,

[¶ 14.] Generally, unless required to be in writing by operation of a statute, an oral assignment will be deemed valid. Willow City Farmers Elevator v. Vogel, Vogel, Brantner & Kelly, 268 N.W.2d 762 (N.D.1978). Also, the assignment of a note and mortgage does not need to be recorded to be valid. State v. Coughran, 19 S.D. 271, 103 N.W. 31, 35 (1905); Richards Trust Co. v. Rhomberg, 19 S.D. 595, 104 N.W. 268, 270 (1905).

[¶ 15.] Typically, any language, however informal, will be sufficient to show the intent of the assignor. Fritzel v. Roy Johnson Const., 1999 SD 59, ¶ 10, 594 N.W.2d 336, 338, overr’d on other grounds, 2003 SD 27, 658 N.W.2d 775. It is the substance of the assignment rather than the form that is evaluated. Atkins v. GE Capital Mortg. Services, Inc., 993 F.Supp. 1406, 1415 (M.D.Ala.1998). Regardless of how it is made, an assignment must contain clear evidence of the intent to transfer rights, must describe the subject matter of the assignment, and must be noticed to the obligor. Tirgan v. Mega Life & Health Ins., 304 N.J.Super. 385, 700 A.2d 1239, 1241 (1997). In reviewing the intent to assign it must be clear that the party intended a present transfer of rights and did not merely bind himself to make a future transfer. Restatement (Second) of Contracts, §§ 324 & 330 (1981).

[¶ 16.] It has long been held that a “ ‘mortgage is only an incident to the debt it was given to secure, and cannot be separated therefrom[.]’ ” Rhomberg, 104 N.W. at 270 (quoting Merritt v. Bartholick, 36 N.Y. 44 (N.Y. 1867)). Therefore, the mortgage and the interest it secures travel together when assigned. According to South Dakota law, the creation of an interest in real property must be in writing. SDCL 44-8-1, 53-8-2. This writing requirement includes the assignment of a mortgage. Boekelheide v. Snyder, 71 S.D. 470, 26 N.W.2d 74 (1947) (citing Flinner v. McVay, 37 Mont. 306, 96 P. 340 (1908)). Since a mortgage is not severable from the debt that it secures, the entire assignment transaction involving an interest in real estate must be in writing.

[¶ 17.] The question then becomes what constitutes a required writing under the law? The primary purpose of the Statute of Frauds is evidentiary in nature. Its intent is to remove uncertainty by providing written evidence of an enforceable obligation. Jacobson v. Gulbransen, 2001 SD 33, ¶ 26, 623 N.W.2d 84, 90. Therefore, any memorandum that reasonably identifies the subject matter of the action and is signed by the party to be charged will satisfy the statute’s writing requirement. Restatement (Second) of Contracts, § 131 (1981).

[¶ 18.] In regard to the type of notice that is due the obligor, no special form of notice is required; any notice is adequate, even if not formally given. The notice must reach the person to be notified in such a manner that a reasonable person would regard it as notice and be guided by it accordingly. McGann v. Capital Sav. Bank & Trust Co., 117 Vt. 179, 89 A.2d 123 (1952). Even though the obligor has no actual knowledge of an assignment, if he has knowledge of such facts that would put a reasonable person upon inquiry, the effect is the same as if actual notice had been given. Atlantic Life Ins. Co. v. First Nat. Bank, 62 F.2d 586 (5th Cir.1933). However, this doctrine of presumptive or imputed notice is generally resorted to with reluctance and invoked only when it would be unconscionable to do otherwise. R.F.C. v. Cody Finance Co., 214 F.2d 695 (10th Cir.1954).

[¶ 19.] As stated above, for this Court to affirm the trial court’s grant of summary judgment there must be no genuine issue as to any material fact surrounding the question of whether or not a valid assignment was made between Security Bank and Northstream. It is clear that any assignment between Security Bank and Northstream must have been in writing to satisfy the requirements of state law. Northstream argues that the assignment was made at a Security Bank Board of Director's meeting and that the minutes of that meeting constitute a memorandum evincing the assignment. However, there is no indication in the record before us as to whether the minutes were signed by any agent of Security Bank. There is an indication in the record that more documentary evidence may exist in regard to the purported assignment. It is not known if any of those documents are signed or by whom. These questions must be answered to determine whether a valid assignment has been made.

[¶ 20.] Further, it must be the intent of the parties that the transfer of rights under the assignment be a present transfer and not a mere statement of intent to transfer at a future time. Absent from the record here is any testimony as to the intent of the Board of Directors of Security Bank. There remains a factual question as to whether Security Bank’s Board of Directors intended their action to be a present assignment of their interests, or a statement merely authorizing the assignment to be carried out at a later date.

[¶ 21.] The obligor of an assignment must receive notice that the assignment has occurred. The record here indicates that at some point a conversation occurred between Wald and Nordstrom regarding the 1804 loan. The record is devoid of any specific details regarding that conversation and there remains a genuine issue as to what notice Wald received from Nord-strom regarding the assignment. It should be noted that for a seven year period of time payments were made by 1804 to Northstream. This begs a question as to why 1804 made payments to Northstream for seven years if it contested the validity of the assignment. Also, there was no legal conclusion by the trial court as to what effect those payments would have had on any claim by 1804 that it had no notice of the assignment.

[¶22.] Finally, a review of summary judgment includes a determination as to whether the trial court correctly decided the legal questions that were laid before it. This Court has been given no record of what legal questions were addressed by the trial court or of the courts corresponding conclusions. Absent this record, it is impossible for this Court to determine if those conclusions were correct.

CONCLUSION

[¶ 23.] There are genuine issues of material fact surrounding Northstream’s alie-gation that a valid assignment was carried out during Security Bank’s liquidation process. Before the legality of the assignment may be determined, these issues of fact must be resolved by the trial court. Also, there is no record of the trial court’s legal conclusions leading to summary judgment. There is no way for this Court to determine if those conclusions were correctly made. For these reasons, the trial court’s grant of summary judgment in favor of 1804 is reversed and the matter is remanded for further proceedings consistent with this opinion.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 25.] VON WALD, Circuit Judge, for ZINTER, Justice, disqualified.

      . A motion was made by Gaylord Norman to appoint Paul Nordstrom to serve as liquidating agent to transfer the remaining assets of Security Bank of South Dakota, N.A., to the bank’s holding company, Northstream Investments, the sole remaining stockholder, for an exchange of stock. It was seconded by Marcy Nordstrom and passed unanimously.

      . In its brief to this Court, 1804 also argues that any assignment between Security Bank and Northstream would have been in violation of state law and, alternatively, federal banking regulations. We find it is not necessary to reach these issues based on our decision regarding the genuine issues of fact that surround the validity of the alleged assignment in December 1992. It is also not necessary to determine the validity of the action taken by Nordstrom in 2000. Additionally, the trial court already determined at one point in the proceedings below that a genuine issue of material fact existed as to the action taken in 2000.

      . SDCL 44-8-1 provides: "A mortgage of real property can be created, renewed, or extended only by writing, executed with the formalities required in the case of a grant of real property.”

      . SDCL 53-8-2 provides in pertinent part:
      The following contracts are not enforceable by action unless the contract or some memorandum thereof is in writing and subscribed by the party to be charged or his agent, as authorized in writing:

      (3) An agreement for sale of real estate or an interest therein, or lease of the same, for a period longer than one year. However, this does not abridge the power of any court to compel specific performance of any agreement for sale of real estate in case of part performance thereof[J


author: PER CURIAM. STREIT, Justice

text:
    James F. CLINKSCALES, Jr., Appellant, v. NELSON SECURITIES, INC. d/b/a The Gallery Lounge, Caroline S. Nelson and Jack D. Nelson, Appellees.
    No. 03-0901.
    Supreme Court of Iowa.
    June 10, 2005.

      Justin A. Teitle of Teitle Law Offices, Davenport, for appellant.
    Mark A. Woollums and Carrie N. Rose-berry of Betty, Neuman & McMahon, L.L.P., Davenport, for appellees.
   PER CURIAM.

“Danger invites rescue.” A marine out for a drink at a Davenport bar rushed to the scene of a gas leak at a grill on the premises. While attempting to turn off two propane gas tanks, a grease fire reignited and he was badly burned. The district court dismissed the marine’s negligence claim against the bar. The court held as a matter of law the marine was solely to blame for his injuries. The court of appeals affirmed. Because a jury could find the bar’s negligence proximately caused the marine’s rescue attempt and injuries, we reverse the district court, vacate the court of appeals, and remand for a trial on the merits.

I. Facts

Late one Friday afternoon in the summer of 2002, James Clinkscales went to The Gallery Lounge, a Davenport pub. Approximately fifty people were there. Clinkscales, an active-duty marine in town as a recruiter, stationed himself at the bar next to a blonde woman known only as “Dimples.” The two began to share a pitcher of beer together.

On Fridays in the summer, The Gallery regularly grilled hamburgers outside and served them to its customers. The grill stood directly outside of the bar on a patio ten feet away from where Clinkscales and Dimples sat. Two tanks of propane gas placed underneath the grill fueled it. The grill was custom-made and large enough to grill twenty burgers at a time.

The Gallery employed Joe Moser to grill the burgers. The first batch of burgers Moser placed on the grill that evening were particularly greasy. When Moser flipped them over, a fire flared up on the grill. Moser did not consider this to be a problem. All of a sudden, however, Moser heard something abnormal — “a pop and a hiss.” A ball of fire erupted underneath the grill and engulfed the propane tanks.

Caroline Nelson eo-owns The Gallery with her husband and regularly works there. When the fire started Nelson was standing at the patio door. Moser told Nelson to get a fire extinguisher. Nelson and Moser testified Nelson and other Gallery employees made general announcements to the patrons to leave and then one employee called the fire department. Clinkscales testified he was alerted to the fire when he saw Nelson come into the bar looking for a fire extinguisher, but did not believe Nelson said anything to him or anybody else about what was happening.

Nelson came back outside with a fire extinguisher and gave it to a patron. The patron extinguished the flame, and Moser managed to turn the knobs on the grill to the “off’ position. Moser could still smell gas escaping from the tanks, however, and Moser said aloud that he wanted to shut the tanks off. Moser pulled the grill away from a wall to access the.tanks, but he found the valves were too hot to touch. There were customers in the patio and adjacent bar. Clinkscales came out to the patio and asked a man holding a fire extinguisher if anyone had turned the gas off. The man told Clinkscales the handle was too hot.

Clinkscales, who had received extensive training in fire suppression in the military, recognized the situation was “very dangerous.” Clinkscales took off his shirt, wrapped it around one of hands, and turned the gas off. No one asked Clinks-cales to do so. He reacted instinctively:

[I]t’s like running after a kid when he runs into the street, you don’t think about it, that there’s a car coming, you just try to grab the child, and, you know, hope for the best. You could get killed doing it, but you just do it.

As Clinkscales was turning off the gas, the fire flared up. Clinkscales was burned on his face, neck, chest, arms, and legs.

Skin hanging from his arms, Clinkscales continued his rescue efforts by helping a frightened young woman in the patio over a fence. A frequent patron of the bar, a man named Norm, took Clinkscales to the hospital just as the fire department arrived.

II. Prior Proceedings

Clinkscales sued The Gallery for negligence. He claimed The Gallery owed him a duty of care as a business invitee. Clinkscales alleged The Gallery was specifically negligent because it (1) failed to properly design, manufacture, maintain, and operate the grill; (2) did not adequately train its employees in the use and maintenance of the grill; (3) did not have enough fire-suppression equipment and did not properly use the fire extinguishers it did have; and (4) did not have emergency procedures in place necessary to protect its customers. In the alternative, Clinks-cales also pled res ipsa loquitur to show general negligence. • Clinkscales contended that even if he could not prove the precise cause of the mishap, the defendants had exclusive control over the instrumentalities involved in the fire.

The defendants filed a motion for summary judgment, which the district court granted. As a matter of law the district court found employees of The Gallery told Clinkscales to evacuate the premises; there was no evidence there was imminent risk to life when he turned off the gas; and “a reasonable person would not determine that the benefits of approaching a fire outweigh the risk of being seriously burned or injured.” The district court ruled the defendants were not liable because (1) Clinkscales’s injuries were caused by a known and obvious danger and (2) the defendants’ alleged negligence was not the proximate cause of Clinks-cales’s injuries. The court also concluded res ipsa loquitur was not applicable because grease fires can occur without negligence. The court of appeals affirmed. It declined to apply the rescue doctrine and held, as a matter of law, Clinkscales “suffers from a self-inflicted wound.”

III. Principles of Review

Appellate review of a grant of a summary-judgment motion is for the eor-reetion of errors at law. Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004). Summary judgment is proper only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). The party seeking summary judgment bears the burden of proof. Harris, 679 N.W.2d at 677. A court entertaining a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party. Id.

Even if the facts are undisputed, summary judgment is not proper if reasonable minds could draw different inferences from them and thereby reach different conclusions. Walker Shoe Store, Inc. v. Howard’s Hobby Shop, 327 N.W.2d 725, 728 (Iowa 1982). The party resisting the motion for summary judgment should be afforded every legitimate inference that can reasonably be deduced from the evidence. Cent. Nat’l. Ins. Co. v. Ins. Co. of N. Am., 522 N.W.2d 39, 42 (Iowa 1994).

Two principles are especially important to our resolution of this appeal. First, we reiterate the well-settled maxim that questions of negligence or proximate cause are ordinarily for the jury — only in exceptional cases should they be decided as a matter of law. Iowa R.App. P. 6.14(6)(j); McCaull v. Universal Mfg. Co., 218 N.W.2d 592, 593 (Iowa 1974); Regan v. Denbar, Inc., 514 N.W.2d 751, 752 (Iowa Ct.App.1994). Second, a court deciding a motion for summary judgment must not weigh the evidence, but rather simply inquire whether a reasonable jury faced with the evidence presented could return a verdict for the nonmoving party. Bitner v. Ottumwa Cmty. Sch. Dist., 549 N.W.2d 295, 300 (Iowa 1996). Mere skepticism of a plaintiffs claim is not a sufficient reason to prevent a jury from hearing the merits of a case.

IV. The Merits

A. The Rescue Doctrine

The rescue doctrine was forged at common law. It involves heroic people doing heroic things. The late Justice Cardozo aptly summarized the commonsense observations about human nature that led to the doctrine’s widespread recognition across this nation when he wrote:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path.... The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437-38 (1921) (citations omitted). That is, those who negligently imperil life or property may not only be liable to their victims, but also to the rescuers. See generally Joel E. Smith, Annotation, Liability of One Negligently Causing Fire for Injuries Sustained by Person Other Than Firefighter in Attempt to Control Fire or to Save Life or Property, 91 A.L.R.3d 1202 (1979).

We have consistently and liberally applied the rescue doctrine in this state for over one hundred years. See, e.g., Hollingsworth v. Schminkey, 553 N.W.2d 591 (Iowa 1996); Leaders v. Dreher, 169 N.W.2d 570 (Iowa 1969); Knudsen v. Merle Hay Plaza, Inc., 160 N.W.2d 279 (Iowa 1968); Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447 (1967); Klunenberg v. Rottinghaus, 256 Iowa 731, 129 N.W.2d 68 (1964); Clayton v. Blair, 255 Iowa 700, 123 N.W.2d 896 (1963); Clayton v. Blair, 254 Iowa 372, 117 N.W.2d 879 (1962); Johannsen v. Mid-Continent Petroleum Corp., 232 Iowa 805, 5 N.W.2d 20 (1942); Glanz v. Chi, Milwaukee & St. Paul Ry., 119 Iowa 611, 93 N.W. 575 (1903); Liming v. Ill. Cent. R.R., 81 Iowa 246, 47 N.W. 66 (1890). But see Saylor v. Parsons, 122 Iowa 679, 98 N.W. 500 (1904). Historically the doctrine arose in questions of proximate cause and contributory negligence. Clayton, 254 Iowa at 375-76, 117 N.W.2d at 880-81. “In other words, did the act of the injured [rescuer] so intervene as to break the chain of causation from [the] defendant’s negligence, or constitute such contributory negligence as to bar recovery?” Id. at 376, 117 N.W.2d at 881. The general rule was a rescuer would not be deemed to have broken the chain of causation or charged with contributory negligence for reasonable attempts to save the life or property of another. See Henneman, 260 Iowa at 72-73, 148 N.W.2d at 454-55. Since the advent of comparative negligence, the doctrine has only arisen on appeal in questions of proximate cause, i.e., when, as here, the defendant claims the rescuer’s actions were a superseding cause of the rescuer’s injuries. See, e.g., Hollingsworth, 553 N.W.2d at 598 (holding rescuer’s actions not a superseding cause).

B. Proximate Cause

The Gallery contends its alleged negligence was not the proximate cause of Clinkscales’s injuries. The Gallery asserts the facts show its employees ordered patrons to leave the premises, it had called the fire department, and at the time of the rescue attempt Moser was retrieving a rag to turn off the propane valves. The court of appeals held as a matter of law that the rescue doctrine did not apply in this case because “no one was in any danger until the plaintiff placed himself there.”

It is well settled that questions of proximate cause are, absent extraordinary circumstances, for the jury to decide. Iowa R.App. P. 6.14(6)(j); see, e.g., Hollingsworth, 553 N.W.2d at 597. The line between what is sufficiently proximate and what is too remote is a thin one:

“If upon looking back from the injury, the connection between the negligence and the injury appears unnatural, unreasonable, and improbable in the light of common experience, such negligence would be a remote rather than a proximate cause. If, however, by a fair consideration of the facts based upon common human experience and logic, there is nothing particularly unnatural or unreasonable in connecting the injury with the negligence, a jury question would be created.”

Hollingsworth, 553 N.W.2d at 597 (quoting Henneman, 260 Iowa at 67, 148 N.W.2d at 451). Here we are concerned with Clinks-cales’s rescue attempt, which The Gallery characterizes as a “superseding cause” of his injuries. A superseding cause is an intervening force that “prevents] the defendant from being liable for harm to the plaintiff that the defendant’s antecedent negligence is a substantial factor in bringing about.” Id. (citing Restatement (Second) of Torts § 440 (1965) [hereinafter Restatement] ).

When a rescue attempt is involved, matters are particularly thorny and a court should be especially wary to grant a defendant’s motion for summary judgment. See id. at 598. The rescue doctrine recognizes not all intervening forces are superseding causes:

If the actor’s negligent conduct threatens harm to another’s person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts.

Restatement § 445 (quoted in Hollingsworth, 553 N.W.2d at 598). That is, so long as the rescuer’s response is “normal,” the negligent actor will not escape liability for the rescuer’s injuries.

What are “normal” rescue efforts? Although in Hollingsworth we loosely characterized the question of “normal efforts” as one solely of foreseeability, see 553 N.W.2d at 598, in truth the term “normal” is not used “in the sense of what is usual, customary, foreseeable, or to be expected.” Restatement § 443 cmt. b; see also id. § 445 cmt. b. Rather, “normal” (referred to in our pre-Restatement cases as “natural”) is used as “the antithesis of abnormal, of extraordinary.” Restatement § 443 cmt. b.

“[T]he only inquiry should be whether the conduct of the plaintiff was ‘natural’ under the circumstances, which is to be ascertained by a counter-chronological examination of the facts. Here the term ‘natural’ must be taken to embrace those qualities of human nature leading to risk-taking in an effort to preserve property, to rescue other persons, or to save oneself. It necessarily includes actions which these well recognized and familiar human feelings bring about. Thus ‘natural’ conduct includes not only cool and well-reasoned action but also the frantic, excited and apparently illogical movements which are too commonly exhibited by a large percentage of human beings in moments of stress.”
“In these situations, the defendant may negligently have exposed the person or property of another to unreasonable risk of loss or destruction. ‘Natural’ instincts will move some persons to make efforts at rescue. The movements of the rescuer may not be well judged and may result in harm either to the goods, to the person endangered by the defendant, or to the rescuer himself. In any such case the defendant will be held liable, for the ‘natural’ conduct of the rescuer leaves no break or gap in the chain of causation.”

Clayton, 254 Iowa at 377-78, 117 N.W.2d at 882 (quoting Clarence M. Updegraff, A Technique for Determining Legal Liability Based On Negligence, 27 Iowa L.Rev. 2, 28 (1941)); accord Restatement § 443 cmt. b. What constitutes normal or natural conduct depends upon the circumstances and “is in most cases a question to be decided by the jury.” Henneman, 260 Iowa at 73, 148 N.W.2d at 455; accord Liming, 81 Iowa at 254, 47 N.W. at 68. If the jury determines the rescuer’s actions are a normal or natural result of the defendant’s actions, the defendant’s actions were a proximate cause of the rescuer’s injuries.

We think the facts are sufficiently in conflict on the issue of proximate cause to warrant a jury determination. The dangers of fire and gas leaks are well known to all. See Johannsen, 232 Iowa at 807, 5 N.W.2d at 22 (upholding jury instruction on rescue doctrine when plaintiff rushed onto defendant’s property to stop unattended gas leak; as plaintiff shut off valve, leak burst into flames severely injuring plaintiff); see also Von Tersch v. Ahrendsen, 251 Iowa 115, 120, 99 N.W.2d 287, 290 (1959) (“The danger of fire is well-known to all.”). There is evidence the danger was imminent in this case, or at least apparently so. See Henneman, 260 Iowa at 72, 148 N.W.2d at 454 (rescue doctrine applies not only when danger is imminent, but also when “the conduct of the rescuer is that of an ordinarily prudent person under existing circumstances”); accord Silbernagel v. Voss, 265 F.2d 390, 391-92 (7th Cir.1959) (approving of jury instruction that was “phrased to elicit an answer as to whether the situation ... induce[d] a reasonable belief on part of [the] plaintiff that [the victim] was in imminent peril”); Wagner, 133 N.E. at 438 (refuting view that rescue doctrine should not apply when, in fact, rescue attempt was futile); cf. Fullerton v. Sauer, 337 F.2d 474, 482 (8th Cir.1964) (construing Iowa law to hold rescue doctrine did not apply when “only apparent or imminent danger” had passed). This summary-judgment record shows customers, employees, and property of The Gallery were in the vicinity of the fire and subsequent gas leak. While it is undisputed employees of The Gallery called the fire department and asked some patrons to evacuate, a jury could find Clinkscales’s rescue efforts were a normal or natural reaction under the circumstances. He may have reasonably thought danger was imminent and, given his extensive training, his help was needed.

Exhortations to leave do not, as a matter of law, preclude liability in all cases. If a defendant sets into course a series of events that induces a rescue attempt, the defendant does not necessarily insulate itself from liability when it tells the rescuer to leave. In any event, in this case there is evidence no one effectively ordered Clinkscales to leave, and some evidence The Gallery enlisted the help of other customers to fight the fire. There is nothing inconsistent with an express general call to evacuate and an implicit individual invitation to help. Even if we were to assume Clinkscales was told to leave, however, this would be but one fact for the jury to consider in evaluating his rescue attempt.

We cannot say as a matter of law that the rescue doctrine does not apply to this case. A reasonable jury could find Clinks-cales’s rescue of Gallery employees, customers, and property was an act done in normal or natural response to the fear or emotional disturbance caused by The Gallery’s negligence. Summary judgment on the issue of proximate cause was not proper.

C. An Open and Obvious Danger is No Bar to Recovery

The district court and court of appeals applied the premises-liability law that persisted at common law and found Clinkscales was an invitee of The Gallery at the time the fire started. Under the common-law trichotomy of invitees, licensees, and trespassers, an invitee is a person “who is invited to enter or remain on land for the purpose directly or indirectly connected with business dealing with the possessor of land.” Konicek v. Loomis Bros., Inc., 457 N.W.2d 614, 618 (Iowa 1990). Invitees are owed the highest standard of care under the trichotomy: the possessor of land is obligated to use ordinary care to keep the premises reasonably safe for invitees, to ascertain the actual condition of the premises, and to make the area reasonably safe or give warning of the actual condition and risks involved. Id.

The parties do not ask us to re-examine the merits of the trichotomy, which is presently- one of the most unsettled and contentious areas of Iowa law. See Sheets v. Ritt, Ritt, & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998) (four of nine niembers of court favored abolishing distinction between invitees and licensees); see also Anderson v. State, 692 N.W.2d 360, 367-68 (Iowa 2005) (use of invitee instruction stead of reasonable care instruction affirmed by operation of law); Alexander v. Med. Assocs. Clinic, 646 N.W.2d 74, 79-80 (Iowa 2002) (six of seven members of court declined to abolish common-law trespasser rule). No one challenges that Clinkscales was an invitee. Only a corollary- of the common-law premises-liability law is implicated here. The defendants argue, and the lower courts held, the defendants owed no duty to Clinkscales as a matter of law because the fire and gas leak constituted a “known and obvious danger.” It is well settled that generally “[t]he possessor of land ... is not liable when the injuries sustained by a business- invitee were caused by a known or obvious danger.” Konicek, 457 N.W.2d at 618 (citing Restatement § 343A).

Clinkscales argues the open and obvious-danger principle does not apply in this case, and we agree. Fire and escaping gas is obviously dangerous. That is not in doubt. This is not your garden-variety premises-liability case, however — it involves an attempted rescue. Absent imminent danger or the appearance thereof, the rescue doctrine is not applicable. See, e.g., Weller v. Chi. & Northwestern R.R., 244 Iowa 149, 152, 55 N.W.2d 720, 721 (1952). (without imminent danger to child rescue doctrine inapplicable); Klunenberg, 256 Iowa at 740, 129 N.W.2d at 73 (similar case involving cow in cemetery); cf. Fullerton, 337 F.2d at 482 (applying Iowa law and concluding rescue instruction not proper for injuries sustained after rescue completed and when no further apparent or imminent danger to life or property). In a rescue case such as this, it is axiomatic that the danger approached is obviously dangerous. See, e.g., Hollingsworth, 553 N.W.2d at 598 (rushing into burning station wagon in victim’s garage); Clayton, 254 Iowa at 378-79, 117 N.W.2d at 882 (remaining in burning apartment building to help others); cf. Kester v. Bruns, 326 N.W.2d 279, 283 (Iowa 1982) (holding rescue instruction not warranted because “it was unreasonable as a matter of 'law for [the plaintiff] to risk his life to prevent the remote possibility of some harm befalling his $90 pool cue”). Danger invites the rescue. To rule the- presence of a known and obvious dangerous condition would,- as a matter of law, negate any duty to invitee-rescuers would completely eviscerate the rescue doctrine where the rescuer happened to be an invitee of the defendant when the condition first occurred. The “open-and-obvious-danger” rule is not absolute. See Restatement § 343A cmt. / (carving out an exception “where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantage of doing so would outweigh the apparent risk”) (quoted in Konicek, 457 N.W.2d at 618).

We have not accepted similar arguments in previous cases. For example, in Jo-hannsen, the plaintiff saw a gasoline spill in the defendant’s railroad yard. 232 Iowa at 807, 5 N.W.2d at 22. The plaintiff ran onto the defendant’s property to stop the spill and suffered severe burns. Id. He sued the landowner for negligence and pled rescue. Id. The defendant argued it did not owe the plaintiff a duty of care because he was a trespasser. Id. We held the plaintiffs status as a trespasser was irrelevant because he was in a place where he had a right to be when the danger occurred. Id. at 812, 5 N.W.2d at 24. The pertinent question was not whether the plaintiff trespassed upon the defendant’s land to effectuate the rescue, but rather whether the negligent acts of the defendant caused a danger that proximately caused the plaintiffs rescue attempt. Id.; see also Clayton, 254 Iowa at 378, 117 N.W.2d at 882 (rescuer “not regarded as a trespasser” for entering land of another to attempt rescue). Likewise, in the case at bar, it does not matter that Clinkscales was an invitee and that the grease fire and gas leak constituted an “open and obvious danger.” See Johannsen, 232 Iowa at 811, 5 N.W.2d at 24 (remarking that the mere fact the plaintiff voluntarily encountered a known danger is not always a bar to recovery). The issue is whether the defendant’s alleged negligent acts proximately caused Clinkscales’s rescue attempt. If trespassers are not precluded as a matter of law from seeking recovery in rescue cases, nor should invitees simply because the danger encountered is a “known and obvious danger.”

D. Negligence

In the alternative, The Gallery argues that even if it owed Clinkscales a duty of care, it did not breach that duty. The district court ruled the defendants were not negligent, as a matter of law, because they asked patrons to leave, called the fire department, and used fire extinguishers. The defendants also point out they have operated the grill for fifteen years without incident and took “precautions to ensure the utmost safety.”

We cannot say as a matter of law that The Gallery was not negligent as alleged in Clinkscales’s petition. Questions of negligence are ordinarily reserved for the jury, and only in extraordinary cases is summary judgment proper. Iowa R.App. P. 6.14(6)(j); Phillips v. Covenant Clinic, 625 N.W.2d 714, 720 (Iowa 2001); Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 566 (Iowa 1997); Ruden v. Jenk, 543 N.W.2d 605, 607 (Iowa 1996). There is testimony the defendants did not clean the grill regularly or sufficiently train their employees in grill cleaning. For example, one of the hoses leading from the propane tanks to the grill had a small “burn hole” in it. There is also evidence Moser permitted the grease fire to persist too long, at times unattended, until it became too large to contain. A jury could also find the defendants did not keep the appropriate type of fire-suppression equipment near the grill. A jury should decide whether The Gallery was negligent, and whether this negligence caused the grease fire, subsequent gas leak, and injuries to Clinkscales.

E. Res Ipsa Loquitur

Res ipsa loquitur (Latin for “the thing speaks for itself’) is a type of circumstantial evidence. Brewster v. United States, 542 N.W.2d 524, 529 (Iowa 1996). In Iowa, res ipsa loquitur applies in negligence cases when

(1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things would not happen if reasonable care had been used.

Novak Heating & Air Conditioning v. Carrier Corp., 622 N.W.2d 495, 498 (Iowa 2001); accord Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 686 (Iowa 1993). Res ipsa loquitur permits a jury to circumstantially “infer the cause of the injury from the naked fact of injury, and then to superadd the further inference that this inferred cause proceeded from negligence.” Benedick v. Potts, 88 Md. 52, 40 A. 1067, 1069 (1898) (quoted in Brewster, 542 N.W.2d at 529). A jury is not required to draw the inference. Brewster, 542 N.W.2d at 529. Nor must a plaintiff “eliminate with certainty all other possible causes or inferences.” Id. at 530. “The jury simply weighs the circumstantial evidence but in the end may or may not accept it as sufficient as to negligence or causation.” Id. at 529.

In Iowa, we permit the plaintiff to plead res ipsa loquitur in addition to specific negligence as an alternate theory of the case. Id. at 530. Clinkscales did precisely this in his petition. Ordinarily the two theories are submitted to the jury together. See id. If the jury finds for the plaintiff on a specific negligence basis, however, it should not entertain res ipsa loquitur. Id.

For good reasons, the defendants do not deny the grill was in their exclusive control. Instead, they claim res ipsa loquitur does not apply in this case because a grease fire could happen in the absence of any negligence. Both the district court and court of appeals held the res-ipsa lo-quitur doctrine was not applicable to this case because grease fires can happen in the absence of a negligent act.

We disagree. The foregoing analysis improperly frames the question. The issue in this case is not simply whether a grease fire could happen in the exercise of ordinary care, because the “occurrence” in this case was not just a grease fire. After all, when Clinkscales approached the grill, the fire was extinguished. The problem was that gas was leaking from the propane tanks, and it appeared reignition of the fire might prove disastrous. Moser testified he heard an abnormal “pop and hiss” come from the grill before the grease fire spread to the tanks. We have repeatedly held the res-ipsa-loquitur doctrine may be applicable in gas leak cases. See, e.g., Palleson v. Jewell Coop. Elevator, 219 N.W.2d 8, 13-14 (Iowa 1974); Blackman v. Iowa Union Elec. Co., 234 Iowa 859, 863, 14 N.W.2d 721, 724 (1944); Sutcliffe v. Fort Dodge Gas & Elec. Co., 218 Iowa 1386, 1394-96, 257 N.W. 406, 410-11 (1934); see also Jay M. Zitter, Annotation, Res Ipsa Loquitur in Gas Leak Cases, 34 A.L.R.5th 1, 14 (1995) (recognizing “it is clear that in the ordinary course of things gas explosions will not occur, so that when one does occur, an inference of negligence may be reasonable and justifiable”). There is nothing exceptional about this case which indicates that this particular gas leak would ordinarily occur in the absence of negligence. Genuine issues of material fact exist, and therefore the district court erroneously excluded application of res ipsa loquitur from the case. Indeed, to rule otherwise would require Clinkscales to prove the precise cause of his injuries— thus depriving him of the doctrine’s benefit. See Brewster, 542 N.W.2d at 532.

Even if we were to ignore the leaking gas, it should be noted that courts have often applied the doctrine of res ipsa loqui-tur in actions against the occupant of a premises for personal injury caused by fire-including grease fires. See, e.g., Aetna Cas. & Sur. Co. v. Brown, 256 So.2d 716, 718 (La.Ct.App.1971) (holding res ipsa loquitur applicable to grease fire); see also 35A Am.Jur.2d Fires § 59 (2001). In the ordinary course of things, grease fires do not occur in the absence of negligence and cannot occur unless the party in exclusive control does something or fails to do something an ordinary person would do under the circumstances. Grease fires do not just happen.

V. Conclusion

Summary judgment was not proper. This case is remanded for a trial on the merits.

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

All justices concur except STREIT, TERNUS, and CADY, JJ., who specially concur in part and dissent in part.

STREIT, Justice

(specially concurring in part and dissenting in part).

I concur to the extent that I believe this rescuer deserves his day in court. The mere fact Clinkscales approached an open and obvious danger is not an absolute bar to recovery; rescue clearly presupposes danger or the appearance thereof. Cf. Johannsen, 232 Iowa at 811-12, 5 N.W.2d at 24. I respectfully dissent, however, because I believe the majority wrongly permits Clinkscales to pursue a res-ipsa-loqui-tur theory. In doing so, the majority stretches that venerable doctrine far beyond its proper boundaries.

As the majority correctly points out, in Iowa res ipsa loquitur applies if

(1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things would not happen if reasonable care had been used.

Novak, 622 N.W.2d at 498. Because Clinkscales has not presented any evidence of either element, I would affirm the district court and court of appeals on this issue.

No Exclusive Control

It is conceded The Gallery had exclusive control of the grill at the time of the accident. On the facts of this case, however, this is insufficient in itself to warrant a res ipsa-loquitur instruction. Exclusive control must be shown at the time of the alleged negligence, which is not necessarily the time of injury. See Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 832 (Iowa 2000); Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739, 744 (Iowa 1977); Palleson, 219 N.W.2d at 13; Breeding v. Reed, 253 Iowa 129, 137, 110 N.W.2d 552, 557 (1961); see also Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex.1974); McGuire v. Stein’s Gift & Garden Ctr., Inc., 178 Wis.2d 379, 504 N.W.2d 385, 391 (Ct.App.1993). As we recently stated,

The plaintiff need only show that the defendant controlled the instrumentality at the time of the alleged negligent act.... The “exclusive control” requirement is simply another way of saying that the injury must be traced to a specific instrumentality or cause for which the defendant was responsible.... Where causes for the injury other than a defendant’s negligence are equally probable, there must be evidence which will permit the jury to eliminate them. This means, for example, that a plaintiff injured by the explosion of a beer bottle purchased from a retailer will be required to make some sufficient showing that the bottle was not cracked by mishandling after it left the defendant’s plant.

Weyerhaeuser, 620 N.W.2d at 832 (citations, internal quotations, and emphasis omitted).

The record before us shows, in undisputed fashion, that several parties other than the defendants played a role that gave rise to the state of the grill as it malfunctioned on the date of Clinkscales’s injuries. The defendants special ordered the grill from two local men, who built it from standard parts. After the defendants purchased the grill, they regularly had the propane tanks switched out at a local filing station. This filling station also periodically replaced the devices that connected the tanks to the hoses that led to the grill, because the connections on the tanks themselves would change from time to time. Any of these parties, as well as any of the manufacturers of any of the parts they built, used, or serviced, could have performed a negligent act leading to Clinkseales’s injuries. The same could be said for the patron extinguishing the fire. Without proving the cause of the fire, Clinkscales has presented no evidence that would permit a jury to eliminate any of these equally potentially negligent parties. Therefore res ipsa lo-quitur is inapplicable, and the district court and court of appeals were correct to strike this theory from Clinkscales’s pleadings.

Grease Fires Happen

Nor has Clinkscales shown the grease fire was such that in the ordinary course of things it would not have happened if reasonable care had been used. As the district court and court of appeals both pointed out, grease fires commonly occur in the absence of negligence.

The classic English case of Byrne v. Boodle, 159 Eng. Rep. 299 (Ex. 1863), perhaps best illustrates the sorts of cases in which res ipsa loquitur properly applies, and how it works. In Byrne, a barrel of flour fell on the plaintiff, who was walking next to the defendant’s shop. 159 Eng. Rep. at 299. Although one could readily infer the barrel came from the defendant’s shop, the plaintiff could not show precisely how the defendant was negligent. Id. Nonetheless, the court thought the accident “spoke for itself’ and therefore held the defendant was negligent, albeit in some unspecified way. Id. at 301.

The case at bar is manifestly unlike Byrne. Grease fires — unlike barrels of flour falling from the sky — occur in the absence of negligence. Put simply, res ipsa loquitur should not apply here because this is not the sort of case for which the doctrine was designed. In holding to the contrary, the majority stretches res ipsa loquitur beyond its proper scope.

TERNUS and CADY, JJ., join this special concurrence in part and dissent part.

      . Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437 (1921) (Cardozo, J.).

      . Clinkscales sued Caroline and Jack Nelson personally for negligence because they owned the land on which The Gallery operated through a lease. Clinkscales gave the same reasons in support of his claim against The Gallexy but also alleged the Nelsons did not properly inspect their land for dangerous conditions. The Nelsons do not distinguish the claims brought against the corporation and themselves personally.

      . In Saylor, we apparently held the rescue doctrine did not apply when the rescuer was injured saving a person who had negligently imperiled himself. Courts and commentators alike have roundly criticized this decision. See W.C. Crais III, Annotation, Rescue Doctrine: Negligence and Contributory Negligence in Suit by Rescuer Against Rescued Person, 4 A.L.R.3d 558, 559-60 (1965) (stating all subsequent courts, commentators, and the authors of the Restatement have chosen not to follow Saylor, which is "the only authority" barring recovery in so-called first-party rescue cases; noting also that "it does not seem likely that future courts will see fit to revive its teachings”); see also Sears v. Morrison, 76 Cal.App.4th 577, 90 Cal.Rptr.2d 528, 531-34 (1999) (severely criticizing Saylor; noting court could find "no case following Saylor ”); Britt v. Mangum, 261 N.C. 250, 134 S.E.2d 235, 237 (1964) (Saylor "has not met with favor in other jurisdictions, but instead, when it has been pressed, it has been almost invariably rejected.”); Restatement (Second) of Torts § 445 cmt. d (1965) (rejecting Saylor analysis). It appears we overruled Saylor sub silentio in Hollingsworth. 553 N.W.2d at 598.

      . Whether the risks of rescue are counted against the rescuer under the comparative-fault doctrine in Iowa is unsettled and not at issue in this appeal. See generally Jeffrey F. Ghent, Annotation, Rescue Doctrine: Applicability and Application of Comparative Negligence Principles, 75 A.L.R.4th 875 (1990).

      . As a related matter, it should be remembered that res ipsa loquitur is not applicable simply because Clinkscales may not be able to show which specific acts of negligence caused his injuries. As one noted commentator has pointed out,
      res ipsa loquitur is sometimes invoked needlessly and inappropriately. If the trier can infer that the defendant was probably guilty of one of several specific acts of negligence but cannot be sure which act it was, res ipsa [loquitur] is not properly involved. ... Although the jury might not be sure which of these negligent [acts] occurred, if it can conclude that one of them did, then the case is merely one of ordinary circumstantial evidence.... When courts speak of res ipsa loquitur in cases like this perhaps no harm is done, but they risk confusing the process of inferring specific negligent acts with the process of estimating the probability of unknown acts of negligence.
      1 Dan B. Dobbs, The Law of Torts § 154, at 372-73 (2001) (footnote omitted). While Clinkscales has presented a number of independent theories as to how the defendants were negligent and should be permitted to make his case to the jury on each, res ipsa loquitur is not available simply because there is uncertainty at this stage in the proceedings about which particular theory may win the day. The majority's decision falls into precisely this trap.