Dalarna Farms Vs. Access Energy Coop.

              IN THE SUPREME COURT OF IOWA
                              No. 09–0342

                        Filed December 23, 2010


DALARNA FARMS,

      Appellee,

vs.

ACCESS ENERGY COOP.,

      Appellant.


      Appeal from the Iowa District Court for Des Moines County,

Mary Ann Brown, Judge.



      On discretionary review, we conclude Iowa Code section 657.1(2)

provides a potential comparative fault defense in any action for nuisance

against an electric utility. REVERSED AND REMANDED.



      Gregory R. Brown and Joseph G. Gamble of Duncan Green Brown

& Langeness, P.C., Des Moines, and Stuart G. Mondschein of Wheeler,

Van Sickle & Anderson, S.C., Madison, Wisconsin, for appellant.



      Nicholas G. Pothitakis of Pothitakis Law Firm, PC, Burlington, and

Scott Lawrence of Lawrence Law Office, S.C., St. Nazianz, Wisconsin, for

appellee.
                                            2

HECHT, Justice.

        In a nuisance suit brought by a dairy farm against an electric

utility, we are asked to interpret Iowa Code section 657.1(2) (2007) to

determine the scope and constitutionality of the ―electric utility defense.‖1

We conclude the potential comparative fault defense provided in section

657.1(2) is available in any nuisance action seeking damages against an

electric utility. We reverse and remand to the district court for further

proceedings consistent with this opinion.

        I. Background Facts and Proceedings.
        According to the petition filed in this case, New London Dairy

constructed and operated a dairy farm in New London, Iowa, from 1999

until 2003.        The dairy herd suffered from health problems, eventually

driving the farm into bankruptcy. In 2003, Dalarna Farms bought the

dairy herd and began managing the dairy.                Dalarna also experienced

problems with the herd, including low milk production and a high death

rate.    After some research, Dalarna concluded the herd was being

affected by stray voltage originating from the utility system of Access

Energy Cooperative.

        On March 1, 2007, Dalarna and New London filed suit against

Access Energy for nuisance based on the effects of stray voltage on the

farm.        The district court severed the claims of the two plaintiffs.

Dalarna‘s suit consists of two counts, both based on nuisance theory.

The first count seeks money damages for past and present harm caused

by stray voltage on the dairy farm, and the second seeks an order to

abate and enjoin Access Energy from causing stray voltage on the farm.



        1All   citations to the Code of Iowa will be to the 2007 Code unless otherwise
indicated.
                                          3

         Access Energy filed a motion styled ―Motion for Partial Summary

Judgment and/or Motion for Adjudication of Law Point‖ requesting the

application of the Iowa Comparative Fault Act to Dalarna‘s damages

claim.      The district court concluded the motion was not properly

supported as a motion for summary judgment.                    Instead, the court

concluded, ―[t]o the extent that the parties are asking the court to, in

advance of trial, advise them as to what it considers to be the controlling

law in the state of Iowa, the court will enter this advisory ruling.‖2 The

district court determined Iowa Code section 657.1(2) authorizes Access
Energy to assert a comparative fault defense only against Dalarna‘s claim

for future damages, if any, awarded in lieu of injunctive relief.

         We granted Access Energy‘s application for interlocutory appeal.

         II. Standard of Review.

         Whether Access Energy‘s motion is characterized as a motion for

summary judgment or, under the former rule, as a motion for

adjudication of law points, our review is for correction of errors at law.

Iowa R. App. P. 6.907; see also Weber v. Warnke, 658 N.W.2d 90, 92

(Iowa 2003) (recognizing motions for adjudication of law points were

reviewed for errors at law); Fin. Mktg. Servs., Inc. v. Hawkeye Bank &

Trust of Des Moines, 588 N.W.2d 450, 455 (Iowa 1999) (stating summary

judgments are reviewed for correction of errors at law).

         III. Discussion.

         Access Energy contends the district court erred in interpreting

section 657.1(2) to allow the comparative fault defense only against

future damages, if any, awarded in lieu of injunctive relief. Simply put,

       2As of August 1, 2002, the Iowa Rules of Civil Procedure no longer recognizes a

separate motion for adjudication of law points. See Weber v. Warnke, 658 N.W.2d 90,
92–93 (Iowa 2003). Neither party challenges the district court‘s authority to issue an
―advisory ruling.‖
                                    4

Access Energy contends the statute permits an electric utility to assert a

comparative fault defense against any damages awarded for a nuisance

claim. Dalarna disagrees, contending the district court‘s interpretation

of the statute is faithful to the enactment‘s express limitation of the

defense to actions ―for abatement‖ of nuisances. Dalarna further asserts

that the interpretation of section 657.1(2) favored by Access Energy

would result in an unconstitutional taking and violation of the

inalienable rights clause of the Iowa Constitution and posits that the

application of comparative fault principles in nuisance actions in which
no negligent conduct is asserted against a utility is ―difficult, if not

unworkable.‖

      A. Interpretation of Section 657.1(2).         In October 2002, this

court issued an opinion in Martins v. Interstate Power Co., 652 N.W.2d

657 (Iowa 2002). The Martins case involved a factual scenario similar to

this case. The plaintiffs managed a dairy farm affected by stray voltage

from an electric utility located nearby. Martins, 652 N.W.2d at 658–59.

The Martins filed suit against Interstate Power alleging several theories,

including strict liability, negligence, and nuisance, eventually dismissing

all claims except the one based on nuisance. Id. at 659. After a jury

verdict in favor of the Martins, Interstate Power appealed on several

grounds.   Id.   The court of appeals affirmed the judgment.      Id.   We

granted further review to address one issue: ―whether the district court

erred by applying a ‗pure nuisance‘ claim against the utility without an

accompanying negligence claim.‖     Id. at 659–60.    We held, contrary to

law in other jurisdictions, nuisance lawsuits in Iowa need not necessarily

be based on negligent conduct. Id. at 665. The question of whether a
nuisance has been created is primarily a fact question that depends on

the ― ‗reasonableness of conducting the business in the manner, at the
                                     5

place, and under the circumstances in question.‘ ‖ Id. at 660 (quoting

Weinhold v. Wolff, 555 N.W.2d 454, 459 (Iowa 1996)). We distinguished

between negligent conduct and conditions constituting nuisances and

summarized that
            [t]he true distinction between negligence and nuisance
      is that ―to constitute a nuisance ‗there must be a degree of
      danger (likely to result in damage) inherent in the thing itself,
      beyond that arising from mere failure to exercise ordinary
      care in its use.‘ ‖

Id. at 661 (quoting Guzman v. Des Moines Hotel Partners, L.P., 489

N.W.2d 7, 11 (Iowa 1992)).        Although we concluded stray voltage

constituted such a ―pure nuisance,‖ we noted that if ―a nuisance is based

on negligence, however, liability for nuisance may depend upon the

existence of negligence‖ and ―apportionment of fault principles under

Iowa Code chapter 668 [would] apply.‖ Id. After acknowledging authority

from other jurisdictions concluding electric utilities are only liable for

nuisance if they have been negligent, we noted that those courts relied

upon a legislative immunity or modified nuisance principles to reach

their decisions. Id. at 662–64.

             Unlike South Dakota, Iowa has no statute exempting
      electric utilities from nuisance claims. The argument here,
      of course, is that we as a court should not wait for legislative
      action and should on our own adopt a similar stance in the
      name of public policy. We decline to do so. Any exception to
      our nuisance law with respect to electric utilities should
      come from the legislature and not from this court.

Id. at 665.

      Less than two years later, the legislature responded to our decision

in Martins and amended section 657.1, adding subsection 2. The statute

provides:

            1. Whatever is injurious to health, indecent, or
      unreasonably offensive to the senses, or an obstruction to
      the free use of property, so as essentially to interfere
                                           6
       unreasonably with the comfortable enjoyment of life or
       property, is a nuisance, and a civil action by ordinary
       proceedings may be brought to enjoin and abate the
       nuisance and to recover damages sustained on account of
       the nuisance.
             2. Notwithstanding subsection 1, in an action to abate
       a nuisance against an electric utility, an electric utility may
       assert a defense of comparative fault as set out in section
       668.3 if the electric utility demonstrates that in the course of
       providing electric services to its customers that it has
       complied with engineering and safety standards as adopted
       by the utilities board of the department of commerce, and if
       the electric utility has secured all permits and approvals, as
       required by state law and local ordinances, necessary to
       perform activities alleged to constitute a nuisance.

Iowa Code § 657.1 (2005) (emphasis added).3

       Thus, section 657.1, as amended, makes available a defense of

comparative fault, as described in section 668.3, to an electric utility if

the utility ―has complied with [specified] engineering and safety

standards‖ and ―has secured all permits and approvals‖ required by law.

The statute makes this defense available ―in an action to abate a

nuisance‖ against an electric utility.

       The district court noted, and Dalarna urges on appeal, the plain

language of the statute suggests the defense is available only against

claims for injunctive relief.           Although section 657.1(2) expressly

references application of the defense in ―action[s] to abate a nuisance,‖

the district court did not conclude comparative fault principles could be

applied to diminish the scope of injunctive relief.              Instead, the court

reasoned that in some actions seeking abatement of a nuisance,

equitable considerations will not justify the issuance of an injunction. In

such cases, the court concluded future damages might be awarded to the

       3Another    proposed version of the bill would have granted broad immunity to any
―public utility‖ from nuisance lawsuits. See H.S.B. 278, 80th G.A., 2nd Sess. § 1 (Iowa
2004) (providing ―an act taken or property maintained by a public utility . . . in
compliance with administrative rules . . . or other legal standards shall not be
considered a nuisance‖).
                                     7

plaintiff in lieu of an injunction. Under the district court‘s interpretation

of the statute, the defendant electric utility is allowed to present evidence

of the plaintiff‘s fault to diminish any award for such future damages.

      Access Energy disagrees, contending comparative fault principles

are not well-suited to reduce or diminish injunctive relief. Emphasizing

the perceived impracticability of comparing the fault of the parties in the

context of a claim for an injunction, Access Energy posits that ―[o]ne

would not anticipate an injunction being issued to enjoin an activity half

the days of the year because a plaintiff was found fifty percent at fault.‖
Because it believes a literal interpretation of the statute is unworkable,

the utility company urges this court to conclude the legislature intended

the defense to be available in any nuisance action seeking money

damages—whether for past or future losses—against an electric utility.

      We are not persuaded by the district court‘s valiant effort to apply

the plain language of section 657.1(2). Instead, we conclude the statute

is ambiguous, and we will accordingly apply our well-established

principles of statutory construction.    See Carolan v. Hill, 553 N.W.2d

882, 887 (Iowa 1996).

      Our goal is to ascertain the legislature‘s intent, and we will assess

―the statute in its entirety, not just isolated words or phrases.‖ State v.

Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006). We seek to interpret the

statute so no part of it is rendered redundant or irrelevant. Id. We strive

for ―a reasonable interpretation that best achieves the statute‘s purpose

and avoids absurd results.‖ Id. Legislative intent is ascertained not only

from the language used but also from ―the statute‘s ‗subject matter, the

object sought to be accomplished, the purpose to be served, underlying
policies, remedies provided, and the consequences of the various
                                         8

interpretations.‘ ‖    Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004)

(quoting State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003)).

       Our review of section 657.1 convinces us the legislature intended

to allow an electric utility to assert a comparative fault defense in any

civil action seeking damages for the defendant electric utility‘s creation or

maintenance of a nuisance.         The amendment to section 657.1 clearly

appears to have been a legislative response to our decision in Martins. It

is less clear, however, that the legislative response was intended to limit

the comparative fault defense to actions seeking injunctive relief.
Instead, we think a reading of section 657.1 in its entirety and in proper

context demonstrates a legislative intent to authorize a comparative fault

defense in any nuisance action seeking damages against an electric

utility if the utility demonstrates compliance with the standards and

secures the permits and approvals referenced in the statute.

       Section 657.1(1) provides ―a civil action by ordinary proceedings

may be brought to enjoin and abate the nuisance and to recover

damages sustained on account of the nuisance.‖ Iowa Code § 657.1(1).

This language contemplates a single cause of action with two possible

remedies—injunctive relief and damages.           We note that before section

657.1 was amended, the title of the statute was ―Nuisance – what

constitutes – action to abate.‖4         Id. § 657.1 (2003).       We think this

demonstrates the legislature used the phrase ―action to abate‖ as a

shorthand for ―a civil action by ordinary proceedings . . . to enjoin and

abate the nuisance and to recover damages sustained on account of the

nuisance.‖ Id. § 657.1(1); see State ex rel. Bd. of Pharmacy Exam’rs v.

McEwen, 250 Iowa 721, 725, 96 N.W.2d 189, 191 (1959) (―In construing

       4After  the amendment, the title of the statute is now ―Nuisance – what
constitutes – action to abate – electric utility defense.‖ Iowa Code § 657.1 (2005).
                                     9

any particular clause or words of a statute, it is especially necessary to

examine and consider the whole statute, including the title, and gather, if

possible, from the whole the expressed intention of the legislature.‖).

Since the same phrase was used when the legislature added subsection

2, it is reasonable to conclude the legislature was utilizing the same

shorthand.

      Further, section 657.1(2) provides comparative fault principles, ―as

set out in section 668.3,‖ apply if the electric utility meets certain

requirements.     Section 668.3 in turn provides a guide to how
comparative fault principles shall be applied to actions to recover

damages. Iowa Code § 668.3. Section 668.3(1)(a) provides contributory

fault may act as a bar to recovery ―in an action . . . to recover damages

for fault resulting in . . . injury to . . . property.‖     Id. § 668.3(1)(a).

Section 668.3(2) describes how the court shall instruct the jury to

allocate fault among the parties and to assess damages. Id. § 668.3(2).

Section 668.3(3), (4), (5), (6), and (7) prescribes how the court should

apply the findings of the jury in determining the award of damages. Id.

§ 668.3(3)–(7). Section 668.3(8) specifically addresses how awards that

include both past and future damages should be handled. Id. § 668.3(8).

      Given these considerations, as well as the recognition of the

impracticability of applying a strictly literal reading of section 657.1(2),

we conclude the legislature intended to allow an electric utility to assert a

comparative fault defense, if certain requirements are met, in any

nuisance lawsuit seeking damages against it.

      B. Constitutionality of Section 657.1(2).           Dalarna contends,

relying on Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998)
and Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004), our

interpretation of section 657.1(2) would result in an unconstitutional
                                         10

taking of their valuable property right to relief against a nuisance and a

violation of Iowa‘s inalienable rights clause.

       The statute at issue in Bormann provided that a farm operated in a

designated agricultural area could not be deemed a nuisance unless the

farm operated negligently or in violation of law. Bormann, 584 N.W.2d at

314.   We noted, however, that under Iowa law, a plaintiff would not

generally have to establish the defendant acted negligently in order to

recover for nuisance.5          Id. at 315.       After determining that the

maintenance of a nuisance is tantamount to a valuable property right,
specifically an easement, we considered whether granting the easement

in favor of the defendants without compensation was an unconstitutional

taking.   Id. at 315, 319–21.       Noting that a taking ― ‗may be anything

which substantially deprives one of the use and enjoyment of his

property or a portion thereof,‘ ‖ we concluded the statute violated the

Fifth Amendment of the United States Constitution and article I, section

18 of the Iowa Constitution.           Id. at 321 (quoting Phelps v. Bd. of

Supervisors, 211 N.W.2d 274, 276 (Iowa 1973)).

       Gacke involved a statute similar to the one in Bormann. Gacke,

684 N.W.2d at 172–73.          The statute purported to immunize animal

feeding operations from nuisance liability unless two conditions were

met: (1) the animal feeding lot unreasonably and for substantial periods

of time interfered with the plaintiff‘s use and enjoyment of his or her life

or property and (2) the animal feeding lot failed to use existing prudent

generally accepted management practices reasonable for the operation.

Id. at 173.    We concluded the second condition was analogous to the


       5We  noted while a nuisance may be caused by the defendant‘s negligence,
underlying negligence is not required for a nuisance recovery. Bormann, 584 N.W.2d at
315.
                                        11

negligence standard deemed unconstitutional in Bormann.              Id.   We

determined, however, that the statute could be upheld against the

takings challenge to the extent the enactment could be interpreted to

allow for recovery of the diminution of the value of the plaintiff‘s property

caused by the nuisance because ―[t]he standard of compensation

required for the taking of an easement is ‗the decrease in value of the

dominant estate . . . resulting from the taking of the easement.‘ ‖ Id. at

174–75 (quoting 26 Am. Jur. 2d Eminent Domain § 385, at 790 (1996)).

We concluded the statute did not effect an unconstitutional taking by
immunizing the owner of the feed lot from an award for other damages

recoverable under a nuisance claim. Id. However, we further concluded

that, as applied, the immunity statute violated Iowa‘s inalienable rights

clause because it was unduly oppressive and not a reasonable exercise of

the state‘s police power. Id. at 179.

      Dalarna asserts our interpretation of section 657.1(2) would result

in a taking in violation of the Federal and Iowa Constitutions as well as a

violation of the Iowa Constitution‘s inalienable rights clause.       We will

address each claim in turn.

      1. Does section 657.1(2) effect an unconstitutional taking? Dalarna

contends our interpretation of section 657.1(2) ―result[s] in [Access

Energy] gaining property rights over [Dalarna‘s] land without any

compensation    by   grafting   a   constitutionally   irrelevant   element—

negligence—onto [Dalarna‘s] claim.‖ We must begin our analysis of this

claim by pointing out that Dalarna‘s argument relies on a fundamental

misunderstanding of the implications of our interpretation of section

657.1(2) and the important differences between section 657.1(2) and the
statutes at issue in Bormann and Gacke.        We do not interpret section

657.1(2) to require a plaintiff prove negligence as a condition of
                                           12

entitlement to relief for nuisance. Our interpretation of section 657.1(2)

does not alter the elements of a nuisance claim in Iowa. A plaintiff may

still prove an electric utility created or maintained a nuisance without

establishing negligent conduct on the part of the defendant electric

utility.

       The question remains, however, whether section 657.1(2) results

or could result in an unconstitutional taking of Dalarna‘s property rights

under the Iowa Constitution.6 At this pretrial stage, it is theoretically

possible a jury could return a verdict that would not implicate the
takings clause if (1) Dalarna fails to prove the existence of a nuisance, or

(2) Dalarna proves Access Energy caused a nuisance but fails to prove

damages resulted from it, or (3) Dalarna proves a nuisance and resulting

damages, but Access Energy fails to prove any fault of Dalarna

contributed to the causation of its damages.                 It is also theoretically

possible that if the statute is applied to the facts established at trial

consistent with the interpretation advanced by Access Energy, Dalarna‘s

nuisance damage remedy could be partially reduced or totally eliminated

as a consequence of Dalarna‘s causal fault.

       We conclude an unconstitutional taking could result if section

657.1(2) is applied, as Access Energy urges, to reduce all elements of

Dalarna‘s damages by the percentage of fault attributed to Dalarna.

First, the jury could find Access Energy caused or maintained a

nuisance but also find Dalarna‘s fault caused some percentage of the


       6Dalarna‘s   challenge to Access Energy‘s interpretation of section 657.1(2) is
based on the Takings Clauses of the Federal and Iowa Constitutions. As we conclude
article I, section 18, the takings clause in the Iowa Constitution, is dispositive in this
case, we do not address the provisions of the Takings Clause under the Federal
Constitution. See Gacke, 684 N.W.2d at 174 (concluding that our disposition of the
plaintiffs‘ state constitutional challenge to section 657.11(2) made it unnecessary to
decide whether the statute also violated the Federal Takings Clause).
                                    13

damages. If the jury finds Dalarna‘s causal fault is less than that of

Access Energy, Dalarna‘s recovery would, under the interpretation of

section 657.1(2) urged by Access Energy, be reduced by the percentage

of Dalarna‘s fault. See Iowa Code § 668.3(1)(a). If the jury determines

Dalarna‘s causal fault exceeds that of Access Energy, Dalarna‘s recovery

would be eliminated entirely if Access Energy‘s interpretation of the

statute is upheld. See id.

      Generally, when a nuisance is deemed permanent, ―the proper

measure of damages is the diminution in the market value of the
property.‖   Weinhold, 555 N.W.2d at 465.        ―This measure of damages

compensates    the   injured   landowner   for   an   interference   that   is

tantamount to a permanent taking.‖ Id. Additionally, the plaintiff may

also recover special damages to compensate the plaintiff for the

― ‗deprivation of the comfortable enjoyment of his property, and the

inconvenience and discomfort suffered by himself and his family, or other

affected persons.‘ ‖ Id. (quoting 58 Am. Jur. 2d Nuisances § 296 (1989)).

A plaintiff may also recover for ― ‗injuries to or destruction of buildings

and crops resulting from a permanent nuisance.‘ ‖ Id.

      Our decision in Gacke made clear that a statute purporting to

immunize a defendant who creates or maintains a nuisance from liability

to another for the value of the diminution of the property caused by the

nuisance is unconstitutional.     Gacke, 684 N.W.2d at 174–75.              We

concluded, however, that the statute at issue in that case could be

upheld to the extent it could be interpreted to apply constitutionally. Id.

As in Gacke, we conclude any constitutional infirmity in section 657.1(2)

may be avoided by an interpretation of the statute that does not permit
the comparative fault scheme to reduce or eliminate a plaintiff‘s recovery

for the diminution of the value of the property caused by a nuisance. Put
                                    14

another way, if a nuisance resulting in an easement is established,

Gacke requires that the plaintiff be compensated for the full value of the

easement on his land to avoid an unconstitutional taking.       Dalarna‘s

recovery for other elements of damage, if any, caused by any nuisance

found by the fact finder to have been caused by Access Energy shall be

reduced in proportion to Dalarna‘s causal fault, if any. Id. at 175 (―The

Takings Clause does not prohibit limitations on other damages

recoverable under a nuisance theory.‖).       When so interpreted and

applied, section 657.1(2) can be applied without a taking.
      2. Does section 657.1(2) violate Iowa’s inalienable rights clause?

Dalarna also contends the application of section 657.1(2) in the manner

advanced by Access Energy would result in a violation of Iowa‘s

inalienable rights clause.   See Iowa Const. art. I, § 1.    We conclude

Dalarna‘s inalienable rights clause argument is premature at this

juncture. The analysis under this constitutional provision requires an

assessment of whether the statute is a reasonable exercise of the State‘s

police power.   Gacke, 684 N.W.2d at 177–78.       Specifically, the court

must determine whether the means chosen by the State to interpose its

regulatory authority are ― ‗reasonably necessary‘ and not ‗unduly

oppressive‘ ‖ on individuals by balancing the public interest in the

enforcement of the statute against the burden on the individual. Id. at

178 (quoting Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995)).

This balancing of interests is necessarily a fact-specific enterprise. See

id. at 178–79 (considering the length of time the Gackes resided on their

property, the money invested in their property, the extent of the adverse

effect of the statute on the Gackes‘ property, and the extent of any
remedy available to the Gackes). Although Dalarna alleges ―devastating

effects on the dairy operation due to exposure to electric current in the
                                           15

ground,‖ these allegations have not been proven at this stage of the

litigation.   In short, we cannot conduct a balancing of the respective

interests until, as in Gacke, a factual basis for them has been

established. At this pretrial stage of the proceeding, we conclude we are

unable to adjudicate whether the application of section 657.1(2) in a

manner consistent with this opinion would exceed the proper limits of

the state‘s regulatory authority by producing an unduly oppressive

result. Accordingly, we decline to address this issue.

       C. Is the Application of Comparative Fault Principles to
Nuisance Actions “Workable”? Dalarna further contends that applying

comparative     fault   principles    to    a   nuisance   suit   is   unworkable.

Specifically, Dalarna argues that comparing an electric utility‘s liability

for the creation or maintenance of a nuisance against a dairy farmer‘s

alleged negligence is like comparing apples to oranges. Dalarna requests

that we provide specific guidance to the parties and the district court

regarding the evidence that should be considered by the jury to assess

the fault of the two parties.

       While we have a great appreciation for the difficult endeavor

undertaken by a fact finder in assessing and allocating different types of

fault to parties under section 668.3, we are not persuaded that a fact

finder will be less capable of assessing a plaintiff‘s causal fault in a

nuisance case against an electric utility company than in any other case.

Nuisance liability in cases not alleging negligent conduct on the part of a

defendant has been likened to ―strict liability,‖ see Martins, 652 N.W.2d

at 665, and is arguably a qualitatively different kind of fault than

negligence or recklessness.          However, section 668.3 already requires
juries to compare qualitatively different kinds of fault, including

recklessness, negligence, breach of warranty, unreasonable assumption
                                    16

of risk, misuse of a product, and strict tort liability.      See Iowa Code

§ 668.1. We do not think comparing an electric utility‘s liability for the

creation or maintenance of a nuisance with the plaintiff‘s causal fault, if

any, under section 657.1(2) will be any more difficult than comparisons

made by juries in other cases under section 668.3.
      We are disinclined to attempt, at Dalarna‘s request, to articulate
what potential evidence may be considered on remand by the jury in the
comparative fault calculus under section 657.1(2). While we understand
Dalarna‘s interest in avoiding the introduction of irrelevant evidence, we
are not inclined to engage in speculation about what evidence might be
available to the parties and offered at the trial in this case. As this case
comes to us on discretionary review of a ruling on a pre-trial motion, no
factual record has been developed. We are confident the district court
will capably determine whether evidence proffered at trial is relevant to a
jury‘s determination of the ―causal relation between the conduct and the
damages claimed.‖ Id. § 668.3(3).
      IV. Conclusion.
      We conclude section 657.1(2) allows an electric utility to assert a
comparative fault defense to a claim for damages caused by nuisance if
the utility establishes it has complied with engineering and safety
standards adopted by the utilities board of the department of commerce
and secured the permits and approvals as provided in the statute.
However, we further conclude that to avoid an unconstitutional taking,
comparative fault principles may not be applied to reduce a plaintiff‘s
recovery for the diminution in value of his or her property caused by the
nuisance. Accordingly, we reverse and remand this case to the district
court for further proceedings consistent with this opinion.
      REVERSED AND REMANDED.
      All justices concur except Appel, J., who takes no part.