Amended September 1, 2016 Estate Of David Paul McFarlin By Its Personal Representative, Jamie Laass Jamie Laass, Individually And Jamie Laass, As Parent And Next Friend Of S.l. v. State Of Iowa ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 14–1180
Filed June 17, 2016
Amended September 1, 2016
ESTATE OF DAVID PAUL McFARLIN by Its Personal Representative,
Jamie Laass; JAMIE LAASS, Individually; and JAMIE LAASS, as Parent
and Next Friend of S.L.,
Appellants,
vs.
STATE OF IOWA,
Appellee.
Appeal from the Iowa District Court for Buena Vista County,
Carl J. Petersen, Judge.
Plaintiffs seek further review of court of appeals decision that
affirmed summary judgment dismissing tort claims against the State of
Iowa arising from boating accident on Storm Lake. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT SUMMARY
JUDGMENT AFFIRMED.
Jay E. Denne and Stanley E. Munger of Munger, Reinschmidt &
Denne, LLP, Sioux City, for appellants.
Thomas J. Miller, Attorney General, and Anne Updegraff, Assistant
Attorney General, for appellee.
2
WATERMAN, Justice.
This appeal presents several questions of law on the liability of the
State of Iowa for a fatal boating accident on Storm Lake. A ten-year-old
boy riding in a speedboat died when his mother’s boyfriend drove the
watercraft at thirty miles per hour between two danger buoys and struck
a submerged dredge pipe. The mother filed several tort actions and
settled claims against the entities that operated and marked the dredge,
the boat manufacturer, and her boyfriend. Her lawsuit against the State
alleged its department of natural resources (DNR) shared responsibility
for the accident. The district court granted the State’s motion for
summary judgment on several grounds: statutory immunity, the public-
duty doctrine, and the lack of a private right to sue under Iowa statutes
regulating use of public waterways. We transferred the mother’s appeal
to the court of appeals, which affirmed on all three grounds. We granted
the mother’s application for further review.
For the reasons explained below, we hold that Iowa Code chapters
461A and 462A provide no private right to sue and the public-duty
doctrine bars the mother’s common law tort claims against the State.
Because those twin holdings resolve the appeal, we do not reach the
statutory immunity issues. We vacate the decision of the court of
appeals and affirm the summary judgment ruling dismissing this action.
I. Background Facts and Proceedings.
On Memorial Day weekend, May 31, 2010, Harry Foote took his
girlfriend, Jamie Laass, and four children fishing on Storm Lake. They
lived in South Sioux City, Nebraska. They drove to Storm Lake in Foote’s
pickup towing his 1850 Lund Tyee speedboat. That model is eighteen-
feet long and seats six people. Its top speed is fifty miles per hour. Foote
launched the watercraft at 9:30 a.m. from the Lakeside boat ramp.
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Storm Lake is open to the public, and boaters pay no fee to use the lake.
Foote operated the speedboat with his five passengers: Laass; her ten-
year-old son, D.M.; her minor daughter, S.L.; and two other children.
Foote had gone walleye fishing on Storm Lake before, and he knew there
was an ongoing dredging operation at the lake.
Once Foote left the no-wake zone, he headed west, skimming over
the water at a speed greater than thirty miles per hour. A couple fishing
in another boat signaled Foote to slow down, but he did not see them.
Foote rapidly approached several buoys that were white with black
lettering stating “DREDGE PIPE.” The buoys displayed an orange
diamond, which the boater’s manual describes as a danger sign. These
buoys marked a submerged pipe used for an ongoing dredging operation.
Foote was confused as to the dredge pipe’s location and steered the
speedboat to pass between two buoys at thirty miles per hour. He saw
the dredge pipe immediately before reaching it. The boat’s 175
horsepower, 400-pound outboard motor/propeller struck the pipe and
flipped into the boat. The propeller was still spinning when it landed in
the passenger compartment and struck D.M., who died from his injuries
later that day.
Storm Lake is a meandered lake located in Buena Vista County,
Iowa. The State of Iowa owns the lakebed and allows the public to use
the lake for recreation. The DNR uses Storm Lake as a walleye fishery.
The DNR harvests walleye eggs from Storm Lake to stock other Iowa
lakes for fishing. The State allowed dredging to begin on the lake in 2002
to improve water conditions for walleyes. Dredging is the process of
removing sediment from the bottom of a lake to increase the depth of a
lake and improve water quality. The sediment is removed through a pipe
from the lake bottom to the location where the sediment is deposited on
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shore. When sediment is being removed, the pipe is submerged. When
the dredge boat moves the pipe to start on a new area, the pipe can rise
to the surface. On the day of the accident, the dredge pipe was marked
every 300 feet with white danger buoys.
The State hired a contractor to dredge the first year. After the one-
year contract expired, the contractor took its dredging equipment
elsewhere. In 2003, the Lakeside Improvement Commission (LIC), an
Iowa Code chapter 28E entity, was formed to take over the dredging
operation. The LIC is comprised of representatives from Buena Vista
County, the City of Storm Lake, the City of Lakeview, and the Lake
Preservation Commission, a private nonprofit entity. Buena Vista County
owns the dredge and accompanying equipment, and the dredge operators
are employees of the City of Storm Lake. The LIC is required to apply
annually for a permit from the DNR through the Natural Resources
Commission (NRC). See Iowa Code § 461A.53 (2009). The permits
require the LIC to notify the DNR “prior to the beginning of the
construction and upon its completion so it may be ascertained that the
state’s interests are being protected.” The LIC submits a new dredging
plan each year, which has been approved annually by the NRC. The
DNR reimburses the LIC for the costs of the dredging when its budget
permits.
In July 2009, two boaters filed accident reports with the NRC
stating their boats had hit the submerged dredge pipe. Reports are filed
with the NRC if property damage exceeds $2000. No changes were made
to better identify the dredge pipe’s location. In 2010, the permitted area
for dredging spanned approximately half of the surface area of the lake.
The dredging project was expected to take ten to twelve years to
complete.
5
Laass filed three lawsuits on behalf of D.M.’s estate, her daughter,
and herself. One action in federal court named as defendants Foote, the
dredge operator, local entities operating the dredge equipment (the City of
Storm Lake, Buena Vista County, and the LIC), and Brunswick
Corporation, the boat manufacturer. The estate recovered a settlement of
$1.2 million in that lawsuit. A separate federal court action against
Lakeside Marina, Inc. was dismissed on summary judgment on grounds
that the defendant had no control over the lake. This appeal arises from
the third suit, filed in Buena Vista County, against the DNR and the
State of Iowa. The DNR was dismissed as a party on January 14, 2013,
leaving the State of Iowa as the sole defendant. The parties proceeded
with discovery and developed an evidentiary record regarding
responsibility for the dredging and buoys.
There are three types of buoys used on Storm Lake. “No wake”
buoys are placed by the DNR. These buoys have a circle and say “slow
no wake.” Exclusion buoys are placed by the DNR to indicate areas that
are off-limits to all vessels. DNR Officer Brent Koppie testified that he
places no-wake buoys in the lake in the spring and removes them in the
winter. The estate’s expert, Marjorie Cooke, also testified that the DNR
officers receive training about the placement and management of
exclusionary buoys.
Finally, danger buoys are used on Storm Lake to mark rocks,
shoals, construction, dams, or stumps. Danger buoys are white with an
orange diamond. The record shows that the DNR was not responsible for
the placement of those buoys to mark the dredge pipe. To the contrary,
Randy Redig, a dredge operator employed by the City of Storm Lake,
testified the dredge operators—city employees—controlled and
maintained the danger buoys marking the submerged dredge pipe.
6
Patrick Kelly, the Public Works Director for the City of Storm Lake,
explained that the city was responsible for warning boaters about the
dredge pipe, and the city had made adjustments to the marking of the
pipe after D.M.’s death:
Q. So your thought was that nobody had the
responsibility of making the dredge operation safer for
boaters? A. We had the — We had the — It was our
responsibility to make it safe, and we felt we’ve done that.
Q. Okay. A. As much as we can.
Q. Have any changes taken place in the dredging
operation since [D.M.] was killed to make it safer? A. The
only thing we did is we added some small orange
intermediate markers in the dredge pipe.
Q. So now how far apart are they spaced? A. They’re
roughly 150 feet.
Kelly testified that the DNR was not involved with the day-to-day
operations of the dredge:
Q. What do you do by “day-to-day operations”? A. I’m
the go-between between the dredge and the LIC, Lake
Improvement Commission, and then I monitor the daily work
sheets and troubleshoot anything that they have problems
with or make sure they’re getting the work done that needs
to be done.
Q. Who specifies where the dredge covers on the lake?
A. What we do on that is I draw up a plan from year to year.
It’s submitted to the DNR for their approval, and then DNR
writes off on that, and then we schedule it out from there.
....
Q. And what role do you understand the DNR plays in
the dredging operation? A. Just oversee it and give us
money to operate.
Q. Do they specify how to dredge? A. No.
Q. Do they specify whether—any of the safety
precautions relative to dredging? A. No.
Q. Do they—In your view, do they have the ability to
specify those things if they want? A. I can’t answer that.
Q. Have they been on-site looking at the dredging
operation? A. Correct.
7
Q. How long does that happen? A. Oh, actually going
out on the dredge, maybe once or twice a year . . . .
DNR Officer Koppie once raised concerns about the floating pipe
being dangerous, and those concerns were addressed:
Q. [W]ho did you express the concern to? A. I
expressed the concern through our dispatch to the dredge
crew for the City of Storm Lake.
Q. And how do you know it got to the dredge crew?
A. Because it was rectified.
Q. Okay. On the occasion you expressed a concern,
the pipe stopped floating? A. Yes.
DNR Officer Koppie testified he did not believe he could change the
dredge’s safety practices:
Q. And do you think you would have authority
actually to force something to be done if you see an obvious
safety concern? A. Not necessarily. I think I can make that
suggestion, I think I can bring it to their attention, but how
much weight that carries, I’m not sure.
....
Q. Have you ever raised a concern about the
placement or the number of buoys marking the dredge pipe?
A. No.
There was also testimony from Redig that he was told by the DNR after
the accident that the buoys were in the right place.
Plaintiffs alleged the State is liable because it (1) permitted the
dredge operator to mark the dredge pipe with buoys every 100 yards
instead of every ten or twenty-five yards, 1 (2) allowed the placement of
the dredge pipe in violation of Iowa Code section 461A.55, (3) allowed the
dredge pipe to remain concealed, (4) allowed the dredge pipe to be in a
location where it interfered with boating operations, (5) allowed the
dredging equipment to endanger plaintiffs, (6) failed to adequately mark
1After this incident, intermediate markers were added to the dredge pipe every
50 yards.
8
the dredge pipe, (7) failed to adequately warn boaters of the nature and
extent of the dredging operation, and (8) failed to establish speed limits
or warnings in the vicinity of the dredge pipe. The petition included
claims for bystander recovery and loss of consortium as well as wrongful-
death claims for D.M.’s estate.
On February 28, 2014, the State filed an answer denying liability
and pleading various defenses. The State then filed a motion for
summary judgment, asserting six independent grounds: (1) there was no
waiver of sovereign immunity for torts occurring on a sovereign lake, (2)
there was no common law negligence action arising from the role of the
State holding the bed of Storm Lake in public trust, (3) the public-duty
doctrine precluded a private cause of action, (4) there was no statutory
basis for a private cause of action, (5) the State was immune under the
recreational use statute, and (6) the State was immune under the
discretionary-function exception to the Iowa Tort Claims Act.
The district court granted the State’s motion on July 9, 2014. The
court held discretionary-function immunity applied, the public-duty
doctrine applied, and there was no private cause of action. We
transferred the plaintiffs’ appeal to the court of appeals, which affirmed
the district court on all three grounds. We granted the plaintiffs’
application for further review.
II. Standard of Review.
“We review a district court’s ruling on summary judgment for
correction of errors at law.” Thomas v. Gavin, 838 N.W.2d 518, 521 (Iowa
2013). “The evidence is viewed in the light most favorable to the
nonmoving party.” Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa
2012). We review rulings on statutory construction for correction of
errors at law. Sanon v. City of Pella, 865 N.W.2d 506, 511 (Iowa 2015).
9
III. Analysis.
We first address whether the legislature implicitly created a private
right to sue under the statutes empowering the DNR to regulate use of
Storm Lake and then address whether the public-duty doctrine bars
plaintiffs’ common law tort claims. Because our answers to those
questions resolve the appeal, we decline to reach the remaining issues of
statutory immunity.
A. Do Iowa Code Chapters 461A and 462A Provide a Private
Right to Sue? Plaintiffs claim that provisions in Iowa Code chapters
461A and 462A create a private right to sue. This is a question of
statutory interpretation. The district court and court of appeals
determined there was no private right to sue in those chapters. We
agree.
“Not all statutory violations give rise to a private cause of action. A
private statutory cause of action exists ‘only when the statute, explicitly
or implicitly, provides for such a cause of action.’ ” Mueller, 818 N.W.2d
at 254 (quoting Sanford v. Manternach, 601 N.W.2d 360, 371 (Iowa
1999)). “A private right of action is the right of an individual to bring suit
to remedy or prevent an injury that results from another party’s actual or
threatened violation of a legal requirement.” Shumate v. Drake Univ., 846
N.W.2d 503, 507 (Iowa 2014) (quoting Wisniewski v. Rodale, Inc., 510
F.3d 294, 296 (3d Cir. 2007) (footnote omitted)). A private, statutory
cause of action only exists “if the legislature intended ‘to create not just a
private right but also a private remedy.’ ” Id. (quoting Alexander v.
Sandoval, 532 U.S. 275, 286, 121 S. Ct. 1511, 1519, 149 L. Ed. 2d 517,
528 (2001)).
Plaintiffs argue four provisions in chapter 461A—sections 461A.3,
461A.52, 461A.53, and 461A.55—read together with section 462A.12(1)
10
create a private cause of action. 2 Section 461A.3 sets forth the NRC’s
“Duties as to parks”:
It shall be the duty of the commission to establish,
maintain, improve, and beautify public parks and preserves
upon the shores of lakes, streams, or other waters, or at
other places within the state which have become historical or
which are of scientific interest, or which by reason of their
natural scenic beauty or location are adapted therefor. The
commission shall have the power to maintain, improve or
beautify state-owned bodies of water, and to provide proper
public access thereto. The commission shall have the power
to provide and operate facilities for the proper public use of
the areas above described.
Iowa Code § 461A.3 (emphasis added); see id. § 461A.1(1) (defining
commission to mean the NRC). Section 461A.52 states,
No person shall remove any ice, sand, gravel, stone,
wood, or other natural material from any lands or waters
under the jurisdiction of the commission without first
entering into an agreement with the commission.
Id. § 461A.52. Section 461A.53 regulates contracts to remove natural
materials from state-owned land:
The commission may enter into agreements for the
removal of ice, sand, gravel, stone, wood, or other natural
material from lands or waters under the jurisdiction of the
commission if, after investigation, it is determined that such
removal will not be detrimental to the state’s interest. The
commission may specify the terms and consideration under
which such removal is permitted and issue written permits
for such removal.
Id. § 461A.53. Section 461A.55, entitled “Dredging,” provides,
In removing sand, gravel, or other material from state-
owned waters by dredging, the operator shall so arrange the
operator’s equipment that other users of the lake or stream
shall not be endangered by cables, anchors, or any concealed
equipment. No waste material shall be left in the water in
2Plaintiffs
cited additional Code provisions in district court: Iowa Code sections
461A.26, 462A.17, 462A.23, and 462A.32. None of those provisions changes our
analysis.
11
such manner as to endanger other craft or to change the
course of any stream.
Id. § 461A.55 (emphasis added); see also id. § 461A.57 (providing a
violation of section 461A.55 is a simple misdemeanor). Iowa Code
section 462A.12(1) states, “No person shall operate any vessel . . . in a
careless, reckless or negligent manner so as to endanger the life, limb or
property of any person.”
No provision in chapter 461A or 462A expressly creates a private
right to sue. We therefore apply our four-factor test to determine
whether an implied private right of action exists:
(1) whether “the plaintiff [is] a member of the class for whose
special benefit the statute was enacted”; (2) “[l]egislative
intent, either explicit or implicit, to create or deny a remedy”;
(3) whether “a private cause of action [is] consistent with the
underlying purpose” of the statute; and (4) whether “the
implication of a private cause of action [will] intrude into an
area over which the federal government has exclusive
jurisdiction or which has been delegated exclusively to a
state administrative agency.”
Shumate, 846 N.W.2d at 508 (quoting Seeman v. Liberty Mut. Ins. Co.,
322 N.W.2d 35, 41–43 (Iowa 1982)). “Our ‘central inquiry’ is whether the
legislature intended to create a private right to sue.” Id. at 509. “If any
one of these factors is not satisfied, there is no implied cause of action.”
Kolbe v. State, 625 N.W.2d 721, 727 (Iowa 2001).
We conclude the plaintiffs failed to satisfy the second factor
because we are unable to glean any legislative intent in these statutes to
create a private right to sue. Rather, chapters 461A and 462A provide a
detailed regulatory regime to protect the use of public lands and waters
for the benefit of the general public. We have repeatedly declined to find
an implied private right to sue under general regulatory statutes. See
Mueller, 818 N.W.2d at 254–58 (holding statutes regulating health
insurance did not provide private right to sue); Stotts v. Eveleth, 688
12
N.W.2d 803, 808–09 (Iowa 2004) (holding Iowa Code chapter 272,
intended as a regulatory measure for teacher licensing, has no implied
private right to sue); Kolbe, 625 N.W.2d at 727 (“Iowa Code section
321.177(7) was intended to be a regulatory measure designed to do
nothing more than simply limit the driving privileges of those who are
incapable of operating a motor vehicle safely. It is devoid of any
suggestion of a private remedy.”); Unertl v. Bezanson, 414 N.W.2d 321,
325–26 (Iowa 1987) (finding no private right to sue under Iowa Code
chapter 536A, regulating industrial loan companies); Seeman, 322
N.W.2d at 41–42 (holding chapter 507B, regulating insurance trade
practices, created no private right to sue insurer). Plaintiffs cite no
regulatory statutes comparable to chapters 461A or 462A that we have
interpreted to provide a private right of action. “We believe that, had the
legislature intended to create a private right of action . . . [,] it would have
said so clearly.” Marcus v. Young, 538 N.W.2d 285, 290 (Iowa 1995)
(quoting Unertl, 414 N.W.2d at 326).
We reject the plaintiffs’ argument that the misdemeanor provisions
support a private right of action. See Schumate, 846 N.W.2d at 515–16
(noting the legislature could reasonably conclude criminal penalties were
sufficient to deter statutory violations); cf. Seeman, 322 N.W.2d at 42
(concluding administrative enforcement remedies were adequate to
achieve legislative purpose).
Because the plaintiffs must satisfy all four factors and fail under
the second, we need not address the other three. Kolbe, 625 N.W.2d at
727 (“To resolve the issue, we address only the second factor . . . .”). We
hold that Iowa Code chapters 461A and 462A do not create an implied
private right to sue. We turn next to plaintiffs’ common law claims.
13
B. Does the Public-Duty Doctrine Bar Plaintiffs’ Common Law
Tort Claims? The district court ruled that the public-duty doctrine bars
plaintiffs’ common law claims against the State, and the court of appeals
affirmed on that ground. Plaintiffs, relying on Summy v. City of
Des Moines, contend the public-duty doctrine does not apply here. 708
N.W.2d 333, 344 (Iowa 2006). We conclude Summy is inapplicable and
the controlling decision is Kolbe, which precludes liability to individuals
based on breach of a duty the state owes to the public at large.
Under the public-duty doctrine, “if a duty is owed to the public
generally, there is no liability to an individual member of that group.”
Kolbe, 625 N.W.2d at 729 (quoting Wilson v. Nepstad, 282 N.W.2d 664,
667 (Iowa 1979) (en banc)).
[A] breach of duty owed to the public at large is not
actionable unless the plaintiff can establish, based on the
unique or particular facts of the case, a special relationship
between the State and the injured plaintiff consistent with
the rules of Restatement (Second) of Torts section 315.
Id. (emphasis omitted). Section 315 states,
There is no duty so to control the conduct of a third person
as to prevent him from causing physical harm to another
unless
(a) a special relation exists between the actor and the
third person which imposes a duty upon the actor to control
the third person’s conduct, or
(b) a special relation exists between the actor and the
other which gives to the other a right to protection.
Restatement (Second) of Torts § 315 (Am. Law Inst. 1965) [hereinafter
Restatement (Second)]. In Raas v. State, we confronted and rejected an
argument that we should abandon the public-duty doctrine, as some
other states have done, because the doctrine was supplanted by the
enactment of tort claims statutes that partially abrogate sovereign
immunity. 729 N.W.2d 444, 448–49 (Iowa 2007) (noting we had rejected
14
that argument in Kolbe). We distinguished the public-duty doctrine from
statutory tort immunity: “Unlike immunity, which protects a municipality
from liability for breach of an otherwise enforceable duty to the plaintiff,
the public duty rule asks whether there was any enforceable duty to the
plaintiff in the first place.” Id. at 448 (quoting 18 Eugene McQuillin,
McQuillin on Municipal Corporations § 53.04.25 (3d ed. 2006)). We
determined the public-duty doctrine remains “alive and well in Iowa.” Id.
at 449; see also Cope v. Utah Valley State Coll., 342 P.3d 243, 249–50
(Utah 2014) (surveying authorities to conclude the “public duty doctrine
is recognized in most jurisdictions” and rejecting argument to abandon
the doctrine); 18 Eugene McQuillin, The Law of Municipal Corporations
§ 53.18, 246–51 (3d ed. rev. vol. 2013) [hereinafter McQuillin] (noting the
“public duty rule [is] in effect in most jurisdictions” and “protects
municipalities from failure to adequately enforce general laws and
regulations, which were intended to benefit the community as a whole”).
But see Coleman v. E. Joliet Fire Prot. Dist., 46 N.E.3d 741, 757–58 (Ill.
2016) (abolishing public-duty doctrine because its purposes “are better
served by application of conventional tort principles and the immunity
protection afforded by statutes”). 3 The plaintiffs, relying on Summy,
argue the public-duty doctrine is inapplicable to the facts of this case but
do not ask us to overrule Raas and Kolbe and abandon the public-duty
doctrine. We do not ordinarily overrule our precedent sua sponte.
3Two justices concurred on different grounds. Coleman, 46 N.E.3d at 758–60
(Freeman, J., specially concurring). Three justices dissented. Id. at 760–68 (Thomas,
J., dissenting). The dissent stated the lead opinion and concurring opinion “both make
a mockery of stare decisis.” Id. at 761. A noted commentator observed, “The
legislature’s abrogation of absolute sovereign immunity does not lead to the conclusion
that the public duty doctrine also has been abrogated . . . ; there still must be proof of a
duty owed . . . .” McQuillin, § 53.18, at 38–39 (2015 Cumulative Supp.).
15
In Thompson v. Kaczinski, we adopted section 7 of the Restatement
(Third) of Torts: Liability for Physical and Emotional Harm. 774 N.W.2d
829, 835 (Iowa 2009). The reporter’s note to section 7 acknowledges the
continued vitality of the public-duty doctrine:
Deference to discretionary decisions of another branch of
government. The “public-duty” doctrine is often explained as
preventing government tort liability for obligations owed
generally to the public, such as providing fire or police
protection. Only when the duty is narrowed to the injured
victim or a prescribed class of persons does a tort duty exist.
Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 7
reporter’s note cmt. g, at 93–94 (Am. Law Inst. 2010) [hereinafter
Restatement (Third)] (collecting cases). 4 Section 37 provides that “[a]n
actor whose conduct has not created a risk of physical . . . harm to
another has no duty of care to the other unless a court determines that
one of the affirmative duties provided in §§ 38–44 is applicable.”
Restatement (Third) § 37, at 2 (Am. Law Inst. 2012). Section 40, entitled
“Duty Based on Special Relationship with Another” provides that “[a]n
actor in a special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope of the
relationship.” Id. § 40(a), at 39. We conclude the public-duty doctrine
remains good law after our adoption of sections of the Restatement
(Third) of Torts.
4The plaintiffs have not argued the Restatement (Third) undermines the public-
duty doctrine in district court or in their appellate briefings. The district court
concluded the public-duty doctrine continues under the Restatement (Third) as a
countervailing principle or policy under section 7, noting comment g. The State argued
below and on appeal that the public-duty doctrine remains intact after our adoption of
section 7. Because the district court ruled the doctrine continues under the
Restatement (Third), and the parties had the opportunity to brief the issue, that
question is ripe for determination by our court. Cf. Hagenow v. Schmidt, 842 N.W.2d
661, 676–77 (Iowa 2014) (“[N]either the parties nor the district court raised the
provisions of the Restatement (Third) when instructing the jury in this case. We defer
for another day our consideration of these provisions . . . .”).
16
We declined to apply the public-duty doctrine in Summy. 708
N.W.2d at 344. Richard Summy was golfing at Waveland Golf Course
owned by the City of Des Moines when he was struck in the eye by a golf
ball while standing on the eighteenth fairway. Id. at 335. The golf ball
had been hit by a golfer from the tee for the first hole. Id. Summy sued
the city, alleging it negligently failed to provide a tree screen to protect
players from errant flying golf balls. Id. at 336. The jury found Summy
twenty-five percent at fault and the city seventy-five percent at fault. Id.
at 337. The city appealed on multiple grounds, and we affirmed. Id. at
337, 344–45. We addressed the public-duty issue in a single paragraph,
citing and distinguishing Kolbe as follows:
The City also relies on the public-duty doctrine: if the
government owes a duty to the general public, it has no
liability to any one individual when it fails to perform this
public duty. This doctrine is inapplicable here because the
City’s duty was one owed to invitees on the golf course, not to
the public at large. We conclude, therefore, that the trial
court did not err in refusing to direct a verdict in favor of the
City.
Id. at 344 (emphasis added) (citation omitted); see also Kolbe, 625
N.W.2d at 729 (stating doctrine does not apply if there is a particular
relationship between the government entity and the injured plaintiff that
gives rise to a special duty).
The plaintiffs argue boaters on Storm Lake, like golfers at
Waveland Golf Course, have the requisite special relationship with the
government-owner to avoid the public-duty doctrine. We disagree.
Golfers pay to use the Waveland Golf Course as business invitees. The
city was both landowner and proprietor operating Waveland as a
business for paying customers. Golfers proceed through the course in
small groups, hole-by-hole in sequence. Members of the general public
are not allowed to wander freely around Waveland while golfers are
17
playing. By contrast, Storm Lake is open to the public free of charge.5
Boaters may traverse the lake freely and come and go as they please, like
motorists using public roads. See Witke v. State Conservation Comm’n,
244 Iowa 261, 267, 56 N.W.2d 582, 586 (1953) (“It is a general rule that
the state cannot add to its revenues by selling to individuals the right to
enjoy such use of public waters as rightfully belong to the public at large,
such as boating . . . .” (quoting 56 Am. Jur. § 215, at 676)). Moreover,
the city alone operated the golf course at Waveland. Local entities, not
the State, operated the dredging equipment at Storm Lake.
This case is more like Kolbe than Summy. In Kolbe, we applied the
public-duty doctrine to affirm summary judgment for the state,
dismissing tort claims alleging the department of transportation (DOT)
negligently issued a drivers’ license to a visually impaired driver, Justin
Schulte. 625 N.W.2d at 724–25, 729–30. Five days after Schulte’s
license was reissued, he was driving on a county road and struck a
bicyclist, Charles Kolbe, inflicting severe injuries. Id. at 724. Kolbe sued
the State, alleging that it “negligently and without adequate investigation
issued driving privileges” to Schulte despite knowledge of his impaired
vision. Id. at 724–25. Kolbe claimed Iowa Code chapter 321 created a
particularized class—“rightful users of the Iowa roads.” Id. at 728. The
district court granted the state’s motion for summary judgment. Id. at
725. In affirming the summary judgment on the public-duty doctrine, we
5The boat registration fee Foote paid to use his watercraft in Iowa did not create
a special relationship with the State that avoids the public-duty doctrine. See Kolbe,
625 N.W.2d at 729–30 (finding state’s role in issuing drivers’ licenses did not create
special class); Mastbergen v. City of Sheldon, 515 N.W.2d 3, 5 (Iowa 1994) (per curiam)
(applying public-duty doctrine to affirm summary judgment dismissing negligence
claims against city for failing to prevent robbery of jewelry store and rejecting argument
that monthly fee to police department to connect and monitor silent alarm created
special relationship).
18
held the requisite special relationship was lacking because “the licensing
provisions in Iowa Code chapter 321, and more specifically Iowa Code
section 321.177(7), are for the benefit of the public at large.” Id. at 729.
We reach the same conclusion as to the DNR’s role at Storm Lake.
Boaters at Storm Lake, like motorists driving on Iowa roadways, are
members of the general public, not a special class of “rightful users of the
lake” for purposes of the public-duty doctrine. Plaintiffs cite no case to
the contrary from any jurisdiction. 6
The district court correctly ruled that any duty of the State to
enforce statutory obligations of the dredge operators “was owed to the
general public, just as the duty to enforce the rules of the road against
dangerous drivers are owed to the public in general.” The court of
appeals likewise held the State did not have a special duty to the
plaintiffs. We agree.
The public-duty doctrine applies when the state’s duty is owed to
the general public rather than to a particularized group of persons. In
Sankey v. Richenberger, we applied the public-duty doctrine and declined
to find a special duty to protect a particularized class in a much smaller
6Several cases before Kolbe allowed motorists to bring negligence claims against
counties based on dangerous roadways. Harryman v. Hayles, 257 N.W.2d 631, 638
(Iowa 1977) (noting duties owed to “all those rightfully using the roads” in Lee County),
overruled on other grounds by Miller v. Boone Cty. Hosp., 394 N.W.2d 776, 781 (Iowa
1986); Symmonds v. Chi., Milwaukee, St. Paul & Pac. R.R., 242 N.W.2d 262, 265 (Iowa
1976) (noting duties owed to “the traveling public” in Scott County). We no longer
recognize county-wide special classes of motorists after Kolbe. In Donahue v.
Washington County, the plaintiffs’ two-year-old daughter was mauled by a dog that a
county deputy had failed to impound despite two prior complaints. 641 N.W.2d 848,
850 (Iowa Ct. App. 2002). The court of appeals affirmed a summary judgment
dismissing the plaintiffs’ negligence claims under the public-duty doctrine, holding the
duties to impound dangerous dogs was owed to the public at large. Id. at 852. The
court of appeals rejected the plaintiffs’ argument that Harryman and Symmonds
supported a finding a special relationship or class protected by the animal control
ordinance and instead correctly applied Kolbe. Id. at 851–52.
 19
location than Storm Lake—a city council meeting open to the public.
456 N.W.2d 206, 209–10 (Iowa 1990) (affirming summary judgment
dismissing negligence claims against the Mt. Pleasant police chief for
failing to prevent fatal shooting spree). We concluded the chief’s duties
were owed to the general public. Id. We rejected the plaintiffs’ argument
that we had abrogated the public-duty doctrine in Wilson. Id. at 209
(distinguishing Wilson, 282 N.W.2d at 673). Wilson involved tort claims
brought by fire victims alleging negligent inspection of the specific
building they occupied. 282 N.W.2d at 666. In Kolbe, we distinguished
Wilson on grounds the fire codes at issue “were not designed to protect
the general public, but rather were designed to protect a ‘special,
identifiable group of persons.’ ” Kolbe, 625 N.W.2d at 729 (quoting
Wilson, 282 N.W.2d at 672). That class was the “lawful occupants of
multiple dwellings.” Wilson, 282 N.W.2d at 672. Unlike the residential
apartment units leased to private tenants in Wilson, Storm Lake is open
to the public. We also distinguished Adam v. State, 380 N.W.2d 716, 723
(Iowa 1986) (en banc), as involving a special class. Kolbe, 625 N.W.2d at
729. In Adam, we rejected the State’s public-duty defense because the
statute was enacted “for the benefit of the class to which plaintiffs
belong—producers doing business with grain dealers.” 380 N.W.2d at
723. We noted the intent of the legislature was to ensure the persons
selling grain received payment. Id. No such particularized class exists in
this case—all members of the public are free to use Storm Lake. We
decline to limit the public-duty doctrine merely because the claim arose
in a confined geographic area such as a public lake.
The Washington Supreme Court applied the public-duty doctrine
in a recreational boating accident case in Ravenscroft v. Washington
Water Power Co., 969 P.2d 75, 85–86 (Wash. 1998) (en banc). The facts
20
of that accident are tragically similar to D.M.’s death on Storm Lake.
Robert Ravenscroft was a passenger in a boat on the Spokane River that
“struck a submerged, rooted tree stump. When the boat hit the stump,
the outboard motor broke off from its attachment and flipped into the
boat, striking Mr. Ravenscroft on the head and shoulder.” Id. at 77. The
accident occurred in a channel where the water level was controlled by
the power company. Id. at 78. Ravenscroft sued the power company and
the county for failure to warn boaters of the submerged tree stumps,
relying on the county’s role in boater safety programs under a
cooperation agreement. Id. at 77, 84. The trial court granted partial
summary judgment, and the state supreme court on interlocutory appeal
held the public-duty doctrine barred the claims against the county. Id.
at 79, 85–86. The Washington Supreme Court acknowledged the
county’s duty under the cooperation agreement went no further than its
duty imposed by state statutes and regulations to promote boater safety.
Id. at 85. In holding the public-duty doctrine barred the claims against
the county, the court specifically declined to find the county owed duties
“for safety of recreational boaters as a specific class.” Id. at 86.
In Cox v. Department of Natural Resources, the Missouri Court of
Appeals applied the public-duty doctrine to affirm the dismissal of tort
claims arising from a diving accident at a state-owned lake. 699 S.W.2d
443, 449 (Mo. Ct. App. 1985). David Cox was swimming within an area
roped off with buoys. Id. at 445. He “made a shallow surface dive,
struck his head on a submerged, hidden, tree stump and became an
instant quadriplegic.” Id. He sued the state, and the trial court granted
the state’s motion to dismiss based on the public-duty doctrine and other
grounds. Id. The appellate court affirmed, expressly rejecting the
plaintiffs’ argument the state’s “duty to provide a physically safe
21
swimming area was a duty to David Cox, as an individual . . . [or as a
member] of a certain class of persons who chose” to swim there. Id. at
449. Rather, the court held the “duty to maintain a safe swimming area
was one owed to the public.” Id. A few years later, the Missouri Supreme
Court, citing Cox, applied the public-duty doctrine to terminate tort
claims against a state park superintendent arising from the drowning
death of a boy scout in a river within a state-owned public park. State
ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 537–38 (Mo. 1988)
(en banc) (citing Cox, 699 S.W.2d at 449). The Missouri Supreme Court
held the park superintendent’s
duty regarding safety measures was owed to the public at
large rather than to the decedent in particular, for the
decedent’s interest in the safety of the park was indirect and
indistinct from that of the public as a whole.
Id. at 538. 7
We hold the State’s safety-related duties at Storm Lake were owed
to the general public, and we decline to recognize a special relationship
or particularized class of recreational boaters to avoid the public-duty
doctrine.
The public-duty doctrine applies notwithstanding the State’s
ownership of Storm Lake. The State owns the lake in trust for the benefit
of the public:
7In Southers v. City of Farmington, the Missouri Supreme Court partially
abandoned the public-duty doctrine as to government entities on claims that the
legislature specifically abolished sovereign immunity. 263 S.W.3d 603, 613 (Mo. 2008)
(en banc) (reinstating tort claims against city arising from injuries caused during high-
speed police chase). The Southers court, however, cited Barthelette for the proposition
that the public-duty doctrine continues to protect state actors when the state’s duty is
owed to the general public. Id. at 621. As noted, we declined to abandon the public-
duty doctrine in Raas and Kolbe.
22
That the title to the lake bed is in the state; that such
title is not proprietary but is in the nature of a trusteeship,
which confers upon the state a burden rather than a benefit;
that the power and the duty conferred upon the state under
such title is to maintain and promote the navigation and
navigability of such lake . . . —these are propositions not in
dispute.
Peck v. Alfred Olsen Constr. Co., 216 Iowa 519, 522, 245 N.W. 131, 132–
33 (1932). “The public trust doctrine is based on the notion that the
State is a steward of our natural resources.” Fencl v. City of Harpers
Ferry, 620 N.W.2d 808, 814 (Iowa 2000). As part of that doctrine, “all
persons have a right to use the navigable waters of the state, so long as
they do not interfere with their use by other citizens, subject to
regulation by the state under its police powers.” Witke, 244 Iowa at 271,
56 N.W.2d at 588. The public-trust doctrine and public-duty doctrine fit
hand in glove.
Plaintiffs, relying on Orr v. Mortvedt, argue the State’s ownership
interest in Storm Lake is comparable to a private owner of a private lake.
735 N.W.2d 610, 615–16 (Iowa 2007). That case addressing private lake
ownership is distinguishable from state ownership in public trust. In
Orr, we considered whether a private landowner could prevent a neighbor
from entering or using the water over the landowner’s privately owned
lakebed. We said,
The public generally has a right of access to navigable
watercourses. . . . [T]he jurisprudence of this country has
extended the definition of “navigable” to refer to watercourses
“susceptible of use for purposes of commerce” or
“possess[ing] a capacity for valuable floatage in the
transportation to market of the products of the country
through which it runs.” “Navigable water has been likened
to a public highway,” “used or usable as a broad highroad for
commerce.”
Id. (first quoting Monroe v. State, 175 P.2d 759, 761 (Utah 1946); then
quoting McCauley v. Salmon, 234 Iowa 1020, 1022–23, 14 N.W.2d 715,
23
716 (1944); and then quoting Mountain Props., Inc. v. Tyler Hill Realty
Corp., 767 A.2d 1096, 1100 (Pa. Super. Ct. 2001)). We held in Orr that
the private landowner could prevent a neighbor from intruding on the
waters of his privately owned lakebed. Id. at 616–18. Plaintiffs contend
that Orr shows the owner of a lakebed also has control of the lake. But,
unlike a private landowner, “the incidents of [the State’s] ‘ownership’ are
closely circumscribed” by the public-trust doctrine. State v. Sorensen,
436 N.W.2d 358, 361 (Iowa 1989). Because the State’s duties regarding
Storm Lake are owed to the general public, the public-duty doctrine
applies.
It is undisputed the dredge pipe and equipment were owned and
operated by local entities, not the State. The DNR did not place the
buoys marking the location of the submerged pipe; city employees placed
them. The LIC controlled day-to-day dredging operations. Liability
follows control, and an owner who transfers control to others is not liable
for injuries. See McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368,
374 (Iowa 2012) (“The reason is simple: The party in control of the work
site is best positioned to take precautions to identify risks and take
measures to improve safety.”); Van Essen v. McCormick Enters., Co., 599
N.W.2d 716, 720–21 (Iowa 1999) (affirming summary judgment for
property owner who transferred control of grain bin to lessee-operator);
Allison ex rel. Fox v. Page, 545 N.W.2d 281, 283 (Iowa 1996) (“The general
rule and exceptions reveal a common principle: liability is premised upon
control.”).
The DNR had regulatory oversight duties for dredging for the
benefit of the public at large. To the extent its duties included ensuring
boaters’ safety, the DNR’s role is akin to a police officer or park ranger.
We “have consistently held that law enforcement personnel do not owe a
24
particularized duty to protect individuals; rather, they owe a general duty
to the public.” Morris v. Leaf, 534 N.W.2d 388, 390 (Iowa 1995)
(collecting cases). This is true regardless of the state’s ownership of
roads and lakes.
For these reasons, the district court correctly granted summary
judgment based on the public-duty doctrine. Because we decide the
common law claims on that ground, “we need not address the immunity
issue.” Kolbe, 625 N.W.2d at 725.
IV. Conclusion.
For the foregoing reasons, we vacate the decision of the court of
appeals and affirm the district court’s summary judgment dismissing
this action.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT SUMMARY JUDGMENT AFFIRMED.
All justices concur except Hecht, Wiggins, and Appel, JJ., who
concur in part and dissent in part.
25
#14–1180, Estate of McFarlin v. State
HECHT, Justice (concurring in part and dissenting in part).
I agree with the majority’s conclusion that various provisions in
chapter 461A, standing alone, do not create a private right of action for
alleged violation of them. However, I dissent on the other issues because
I believe the public-duty doctrine does not foreclose the common law
claims and discretionary-function immunity does not arise under the
circumstances of this case. I would vacate the decision of the court of
appeals, reverse the district court’s summary judgment ruling, and
remand for trial.
I. The Public-Duty Doctrine.
The public-duty doctrine is not new. See Held v. Bagwell, 58 Iowa
139, 144, 12 N.W. 226, 228–29 (1882) (concluding a county supervisor
owed a duty “for the benefit of the public” but owed no duty to the
individual plaintiff). But our understanding of tort law principles has
changed significantly since the nineteenth century, and our current
understanding justifies a fresh look at the doctrine.
The legislature enacted the Iowa Tort Claims Act (ITCA) in 1965.
See generally 1965 Iowa Acts ch. 79. The ITCA abrogated—with some
express exceptions now codified in Iowa Code section 669.14 (2009)—the
former rule of governmental immunity and made the state liable for
negligence “to the same claimants, in the same manner, and to the same
extent as a private individual under like circumstances.” 1965 Iowa Acts
ch. 79, § 4; accord Iowa Code § 669.4. Notably, the common law public-
duty doctrine is not among the express exceptions to the waiver of
immunity. See Iowa Code § 669.14; see also Maple v. City of Omaha, 384
N.W.2d 254, 260 (Neb. 1986) (acknowledging some exceptions to liability
in Nebraska’s political subdivisions tort claims act, but noting “[n]owhere
26
is there found an exemption for the exercise of a duty owed to the public
generally”); Brennen v. City of Eugene, 591 P.2d 719, 725 (Or. 1979) (en
banc) (“In abolishing governmental tort immunity, the Legislature
specifically provided for certain exceptions under which immunity would
be retained, and we find no warrant for judicially engrafting an additional
exception onto the statute.” (Citation omitted.)).
The phrase “the state shall be liable” in section 669.4 is susceptible
to two reasonable interpretations. It might mean only that the legislature
intended to remove the immunity the state previously enjoyed when it
otherwise owed a duty. But it might also mean the legislature intended
to lift the state’s immunity with certain enumerated exceptions and put
the state and private individuals on equal footing with respect to tort
liability. I believe the second interpretation is correct because it gives
meaning to the related phrase “to the same claimants, in the same
manner, and to the same extent as private individuals.” Iowa Code §
669.4; see id. § 4.4(2) (“The entire statute is intended to be effective.”);
Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 520 (Iowa 2012) (noting we
interpret statutes to give all words and phrases meaning while assuming
no provision is superfluous). We must give meaning to the legislature’s
clear expression of the principle of sameness in this tort liability context.
We recognized the importance of the sameness principle in 1979,
relying on an Alaska decision that rhetorically asked, “Why should the
establishment of duty become more difficult when the state is the
defendant?” Wilson v. Nepstad, 282 N.W.2d 664, 668 (Iowa 1979)
(quoting Adams v. State, 555 P.2d 235, 242 (Alaska 1976)). If the state is
to be treated like a private litigant, the public duty-doctrine must give
way because its practical effect is to “create immunity where the
legislature has not.” Adams, 555 P.2d at 242; see also Leake v. Cain,
27
720 P.2d 152, 160 (Colo. 1986) (en banc) (“[W]hether or not the public
duty rule is a function of sovereign immunity, the effect of the rule is
identical to that of sovereign immunity. Under both doctrines, the
existence of liability depends entirely upon the public status of the
defendant.”); Hudson v. Town of E. Montpelier, 638 A.2d 561, 566 (Vt.
1993) (“[A]lthough the [public-duty] doctrine is couched in terms of duty
rather than liability, in effect, it resurrects the governmental immunities
that have been abrogated or limited . . . .”). We further noted in Wilson
that “the trend in this area is toward liability,” Wilson, 282 N.W.2d at
667, and unequivocally concluded “[t]he legislature could not have
expressed better or more consistently its intention to impose in the same
manner as in the private sector . . . tort liability for negligence,” id. at
669. This year, the Illinois Supreme Court used similar reasoning in
concluding “the legislature’s enactment of statutory immunities has
rendered the public duty rule obsolete.” Coleman v. E. Joliet Fire Prot.
Dist., 46 N.E.3d 741, 756 (Ill. 2016). 8
8Illinois is the latest jurisdiction to join the group that has retreated from,
abolished, rejected, limited, or abandoned the public-duty doctrine. See, e.g., Adams,
555 P.2d at 241 (concluding the public-duty “doctrine is in reality a form of sovereign
immunity, which is a matter dealt with by statute . . . and not to be amplified by court-
created doctrine”); Leake, 720 P.2d at 160 (“[W]e reject the public duty rule in
Colorado. . . . [T]he duty of a public entity shall be determined in the same manner as if
it were a private party.”); Southers v. City of Farmington, 263 S.W.3d 603, 613 (Mo.
2008) (en banc) (“[T]his court is no longer willing to apply the judicially-created
protections of the public duty doctrine in a way that would insulate government entities
from tort liability where the legislature has expressly abolished such immunity.”);
Maple, 384 N.W.2d at 260–61 (rejecting the public-duty doctrine but nonetheless
concluding as a matter of law that the defendant did not breach the duty it owed);
Schear v. Bd. of Cty. Comm’rs, 687 P.2d 728, 732, 734 (N.M. 1984) (declining to
“breathe new life into” the public-duty doctrine because it is “a ghost of sovereign
immunity . . . and is inconsistent” with the state tort claims act); Ficek v. Morken, 685
N.W.2d 98, 107 (N.D. 2004) (referring to those jurisdictions that retain the public-duty
doctrine as “the minority view” and “refus[ing] to adopt the public-duty doctrine as a
part of North Dakota law”); Wallace v. Ohio Dep’t of Commerce, 773 N.E.2d 1018, 1027
(Ohio 2002) (“It is spurious logic to conclude that a doctrine that is, by definition,
available only to public defendants can be consistent with a statute mandating that
28
I acknowledge that we stated in 2007—after deciding Wilson—that
the public-duty doctrine is “alive and well in Iowa.” Raas v. State, 729
N.W.2d 444, 449 (Iowa 2007). I think that characterization of the
doctrine was inapt. Although we have applied the public-duty doctrine
since the ITCA’s enactment, we have repeatedly narrowed its scope and
often applied exceptions to it. See Kolbe v. State, 625 N.W.2d 721, 729
(Iowa 2001).
_________________________
suits be determined in accordance with rules of law applicable to private parties.”);
Brennen, 591 P.2d at 725 (“[A]ny distinction between ‘public’ and ‘private’ duty is
precluded by statute in this state.”); Catone v. Medberry, 555 A.2d 328, 333–34 (R.I.
1989) (declining to revive the public-duty doctrine because it “would effectively smuggle
back into law the doctrine of sovereign immunity that [the state tort claims act] was
designed to constrain”); Hudson, 638 A.2d at 568 (declining to adopt the public-duty
doctrine and concluding the doctrine is “confusing and inconsistent”); DeWald v. State,
719 P.2d 643, 653 (Wyo. 1986) (“The public-duty/special-duty rule was in essence a
form of sovereign immunity and viable when sovereign immunity was the rule. The
legislature has abolished sovereign immunity in this area. The public duty [doctrine]
. . . is no longer viable.”); see also Beaudrie v. Henderson, 631 N.W.2d 308, 313–14
(Mich. 2001) (limiting the public-duty doctrine only to one category of cases involving
police protection, and noting the doctrine, if applied any more broadly than that, “is
tantamount to a grant of common-law governmental immunity”); Doucette v. Town of
Bristol, 635 A.2d 1387, 1390 (N.H. 1993) (discarding the public-duty doctrine for
municipal defendants in part because the doctrine never applied in that jurisdiction to
state tort claims); Thompson v. Waters, 526 S.E.2d 650, 652 (N.C. 2000) (noting the
public-duty doctrine had never been applied in that jurisdiction “to a claim against a
municipality or county in a situation involving any group or individual other than law
enforcement,” and declining to extend the doctrine any further).
Utah and many other jurisdictions retain the public-duty doctrine. See Cope v.
Utah Valley State Coll., 342 P.3d 243, 249–50 (Utah 2014); see also Ezel v. Cockrell, 902
S.W.2d 394, 399 & n.5 (Tenn. 1995) (listing jurisdictions that retained the doctrine as of
1995). However, the Utah court noted it “did not adopt the public duty doctrine until
several years after the legislature first limited Utah’s sovereign immunity,” so
“abrogation of absolute sovereign immunity could not impliedly extinguish a doctrine
not yet recognized.” Cope, 342 P.3d at 249–50 (emphasis added). Iowa’s history is
clearly different because we recognized and applied the public-duty doctrine well before
the ITCA. See, e.g., Genkinger v. Jefferson County, 250 Iowa 118, 120, 93 N.W.2d 130,
132 (1958); Beeks v. Dickinson County, 131 Iowa 244, 248, 108 N.W. 311, 312 (1906);
Held, 58 Iowa at 144, 12 N.W. at 228–29. Connecticut, which also maintains the
public-duty doctrine, does so because “Connecticut has not abolished governmental
immunity.” Gordon v. Bridgeport Hous. Auth., 544 A.2d 1185, 1197 (Conn. 1988).
Although these are only two examples, they illustrate that we should not “choose a rule
merely because a majority” of other jurisdictions follow a similar one. Luana Sav. Bank
v. Pro-Build Holdings, Inc., 856 N.W.2d 892, 902 (Iowa 2014) (Wiggins, J., dissenting).
29
The state “is liable for tortious commissions and omissions when
authority and control over a particular activity has been delegated to it
. . . and breach of that duty involves a foreseeable risk of injury to an
identifiable class to which the victim belongs.” Wilson, 282 N.W.2d at
671. We have said the public-duty doctrine does not foreclose a claim
when the identifiable class of people to which the state (or a municipality
or county) owed a duty was “occupants of multi-family dwellings and
other specified structures” in Des Moines, id. at 672, “all those rightfully
using the roads” in Lee County, Harryman v. Hayles, 257 N.W.2d 631,
638 (Iowa 1977), overruled on other grounds by Miller v. Boone Cty. Hosp.,
394 N.W.2d 776, 781 (Iowa 1986), and “the traveling public” in Scott
County, Symmonds v. Chi., Milwaukee, St. Paul & Pac. R.R., 242 N.W.2d
262, 265 (Iowa 1976). We have also declined to apply the doctrine to
claims when the class of persons exposed to a risk created by
governmental actors is clearly limited. See Summy v. City of Des Moines,
708 N.W.2d 333, 344 (Iowa 2006) (invitees on a municipal golf course);
Adam v. State, 380 N.W.2d 716, 723 (Iowa 1986) (“producers doing
business with grain dealers”). In short, the public-duty doctrine is an
anachronistic common law framework that we often avoid—and we
should finally cut bait and abandon it altogether. Cf. Kent v. City of
Columbia Falls, 350 P.3d 9, 21 (Mont. 2015) (Cotter, J., concurring)
(suggesting the public-duty doctrine may no longer be viable in Montana
and asserting the courts in that state have “erred in expansively reviving
[governmental] immunity by resort to a judicially-created theory”). I
would disavow Kolbe and Raas to the extent they perpetuate the public-
duty doctrine.
But even if a majority of this court is not yet prepared to abandon
the doctrine completely, we should not apply it in this case. In Kolbe, the
30
plaintiff asserted the state negligently issued a driver’s license to a sight-
impaired driver, but we concluded “the licensing provisions in Iowa Code
chapter 321 . . . are for the benefit of the public at large” and therefore
applied the public-duty doctrine. Kolbe, 625 N.W.2d at 729. The facts
here are distinguishable. We are not dealing with a general licensing
statute or a broad duty of care owed by the State to members of the
general public from Larchwood to Keokuk, Hamburg to New Albin, and
everywhere in between. Instead, the duty I would recognize in this case
is one the State owed only to the boaters on Storm Lake who were
exposed to a risk of serious injury or death from the submerged dredge
pipe. Unlike the rather inchoate and generalized risk to any motorist or
pedestrian traversing an unspecified roadway that could be literally
anywhere in Kolbe, the risk allegedly created by the State and its
dredging agents endangered a limited universe of people at a specific
location. This very specific risk of serious injury or death affirmatively
created by the State and its agents in a dredging enterprise undertaken
for the benefit of the State makes this case more like Harryman and
Symmonds than Kolbe. In fact, the number of boaters exposed to the
risk in this case is probably smaller than the number of motorists
exposed to road hazards in Harryman and Symmonds—cases in which we
concluded the public-duty doctrine did not apply because the class of
persons exposed to the risk of physical injury was sufficiently limited and
identifiable. See Wilson, 282 N.W.2d at 672. And in this case—unlike in
Harryman and Symmonds—the risk was created by the affirmative acts of
actors whose conduct the State could control by prescribing terms for the
dredging activity. That differentiates this case from, for example, a
hypothetical scenario involving the State’s failure to remove a naturally
occurring hazard—like a ball of tree roots—from a waterway. See State
31
ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 537–38 (Mo. 1988) (en
banc).
The factually analogous cases from other jurisdictions that the
majority cites are less persuasive in my view. The Washington case
applied the public-duty doctrine only to a third-party beneficiary claim
based on statutory violations, saying nothing about common law
negligence claims. Ravenscroft v. Wash. Water Power Co., 969 P.2d 75,
84–85 (Wash. 1998) (en banc). As one Washington Supreme Court
justice later clarified, “the only governmental duties . . . limited by
application of the public duty doctrine are duties imposed by a statute,
ordinance, or regulation” and the Washington Supreme Court “has never
held that a government did not have a common law duty solely because
of the public duty doctrine.” Munich v. Skagit Emergency Commc’n Ctr.,
288 P.3d 328, 336 (Wash. 2012) (Chambers, J., concurring) (emphasis
added). Furthermore, I posit that the Missouri cases applying the public-
duty doctrine are no longer good law because they predated the Missouri
Supreme Court’s 2008 decision abandoning the public-duty doctrine for
government entities. Compare Barthelette, 756 S.W.2d at 538–39, and
Cox v. Dep’t of Nat. Res., 699 S.W.2d 443, 449 (Mo. Ct. App. 1985), with
Southers v. City of Farmington, 263 S.W.3d 603, 613 (Mo. 2008).
Although the Southers court concluded an individual defendant was
“eligible for the protections of the public duty doctrine,” it noted those
protections were “personal . . . and [could not] be extended to protect the
City.” Southers, 263 S.W.3d at 620.
There is yet another reason to review the public-duty doctrine
thoroughly and ultimately discard it or at least continue to apply it
narrowly. Our previous decisions applying the doctrine were based on
provisions in the Restatement (Second) of Torts. See Kolbe, 625 N.W.2d
32
at 729. Yet, as the majority recognizes, in 2009—after Raas declared the
public-duty doctrine alive and well, see Raas, 729 N.W.2d at 449—we
adopted the duty framework under the Restatement (Third) of Torts:
Liability for Physical and Emotional Harm. Thompson v. Kaczinski, 774
N.W.2d 829, 835 (Iowa 2009). Thompson revealed a new understanding
of the duty framework, removing foreseeability from the duty analysis
and expressing disinclination toward no-duty rules except in rare
circumstances. I do not suggest no-duty rules are completely
incompatible with the Restatement (Third). Indeed, as the majority
observes, the Restatement (Third) includes references to the public-duty
doctrine in certain comments. Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 7 reporter’s note cmt. g, at 93–94 (Am. Law
Inst. 2012) [hereinafter Restatement (Third)]; id. § 37 cmt. i, at 7. Yet,
those references to the doctrine in the Restatement (Third) comments
and reporter’s notes 9 do not justify its muscular application favored by
the majority opinion in this case.
9The majority relies on the reporter’s note to conclude the public-duty doctrine
perseveres under section 7 of the Restatement (Third) and undercuts the general duty of
care. But the reporter’s note merely collects cases applying the doctrine, and the cases
obviously predate the Restatement (Third)—so the reporter’s note takes no position on
the doctrine’s continuing vitality under section 7. Restatement (Third) § 7 reporter’s
note cmt. g, at 93–94. In fact, the actual comments—not the reporter’s notes—for
section 7 suggest the no-duty rule inherent in the public-duty doctrine might be folded
into the concept of discretionary-function immunity. See id. § 7 cmt. g, at 80 (“Courts
employ no-duty rules to defer to discretionary decisions made by officials . . . .”). The
reporter’s note, standing alone, is not nearly as significant as the majority suggests.
Rather than maintaining the public-duty doctrine as part of the general duty of care
under section 7, I conclude the Restatement (Third) instead relegates the doctrine to the
status of a rare exception contemplated—but certainly not mandated—by section 37,
consistent with the Restatement (Third)’s general disinclination toward no-duty rules.
See id. § 7 cmt. a, at 78 (noting no-duty rules are only appropriate in limited
circumstances); id. § 37 cmt. i, at 7 (acknowledging that the public-duty doctrine
reflects “the concern that the judicial branch give appropriate deference to a coordinate
branch of government when a decision allocates resources or involves other significant
political, social, or economic determinations”). And even then, a court may determine
an actor owes an affirmative duty of care notwithstanding section 37. Id. § 37, at 2.
33
As the majority notes, the Restatement (Third) provides that “[a]n
actor whose conduct has not created a risk of physical harm to another
has no duty of care to the other unless a court determines” the actor
owes an affirmative duty of care. Restatement (Third) § 37, at 2.
Sections 38–44 set forth affirmative duties a court might determine the
actor owes. See id. §§ 38–44. The affirmative duties recognized in those
sections, however, are nonexclusive. See id. § 37 cmt. g, at 7 (noting the
sections “recognizing certain relationships as imposing an affirmative
duty are stated nonexclusively, leaving to courts whether to recognize
additional relationships as sufficient to impose an affirmative duty”).
Even when the legislature has not created a private cause of action
for violation of a statute, when the interest protected is physical harm,
“courts may consider the legislative purpose and the values reflected in
the statute to decide that the purpose and values justify adopting a duty
that the common law had not previously recognized.” Id. § 38 cmt. c, at
22. Although I share the majority’s conclusion that the dredging
provisions in chapter 461A do not create a private cause of action
standing alone, I conclude the State’s ability to control the terms of
removal of silt from the lakebed through the permitting process, see Iowa
Code § 461A.53, is relevant to the existence of an affirmative common
law duty. Dredging structures in the water pose a risk of severe physical
injury or death to boaters—as this case tragically illustrates—and I
conclude the State’s involvement in creating such a risk justifies our
recognition of an affirmative duty in this case. Even though the State’s
employees did not directly create a risk by placing the dredge pipe in the
location where Foote encountered it and did not place the buoys marking
the pipe’s location on the date of the incident, I nonetheless conclude the
State had an affirmative duty of care to the plaintiffs under the
34
circumstances presented here. The State had statutory authority to
prescribe the terms of the dredging operation. This authority would
permit the State to mandate safety standards for locating the dredging
equipment and warning of its presence. Given its ownership of the
lakebed, the State also had the authority to inspect the dredge operation
and evaluate the operator’s compliance with the prescribed standards to
make the lake reasonably safe for visitors. 10
The relationship between boaters and the State informs my
conclusion that the State owed an affirmative duty. Like the golfer in
Summy, who the City of Des Moines invited to engage in recreational
activity at the Waveland Golf Course, the State invited Foote to use his
boat on Storm Lake. See Summy, 708 N.W.2d at 341. Although Foote
did not pay a separate fee on the day of the incident for the opportunity
to use the boat on Storm Lake, he did pay a fee to register his boat as a
cost of using the State’s waters. I find unpersuasive and immaterial the
majority’s factual distinction that other golfers on the course in Summy
could not move about freely the way boaters on Storm Lake can.
My conclusion the State owed a duty does not automatically mean
it breached the duty; duty and breach analysis are separate. See Woods
v. Dist. of Columbia, 63 A.3d 551, 561 (D.C. 2013) (Oberly, J., concurring
in the judgment) (asserting that even if courts discard the public-duty
doctrine, “[t]he citizen might not ‘win’ because [he or] she still must prove
the basic elements of a cause of action”). However, because I conclude
the public-duty doctrine is no longer viable, and even if it is, the State
10Iwould hold the State’s duty as the lakebed’s owner to keep the premises in a
reasonably safe condition “is a nondelegable duty.” Kragel v. Wal-Mart Stores, Inc., 537
N.W.2d 699, 703 (Iowa 1995). Although the State could cede performance of that duty
to the Lakeside Improvement Commission, it cannot avoid liability for nonperformance
by doing so. See id. at 704.
 35
owed a duty in this case to an identifiably narrow group of people, a jury
should resolve the question whether the State failed to exercise
reasonable care. Summary judgment on the public-duty doctrine ground
was unwarranted.
II. Discretionary-Function Immunity.
The majority does not reach this issue, but I would hold the
discretionary-function exception to the waiver of sovereign immunity
does not apply here. Discretionary-function immunity only protects
governmental actors’ decision-making based on policy considerations.
See Anderson v. State, 692 N.W.2d 360, 364 (Iowa 2005); accord Walker
v. State, 801 N.W.2d 548, 555 (Iowa 2011). Furthermore, “we narrowly
construe the discretionary function exception.” Walker, 801 N.W.2d at
555. “[L]iability . . . is the rule and immunity is the exception.” Schmitz
v. City of Dubuque, 682 N.W.2d 70, 74 (Iowa 2004); accord Graber v. City
of Ankeny, 656 N.W.2d 157, 161 (Iowa 2003).
We apply a two-step test to evaluate whether a challenged act
qualifies for the discretionary-function exception. Schneider v. State, 789
N.W.2d 138, 146 (Iowa 2010). First, we “consider whether the action is a
matter of choice.” Anderson, 692 N.W.2d at 364. If it is, we proceed to
determine whether that choice “is of the kind the discretionary function
exception was designed to shield.” Id.; see also Berkovitz v. United
States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958–59, 100 L. Ed. 2d 531,
540–41 (1988) (setting out the same two-part test under the Federal Tort
Claims Act); Goodman v. City of Le Claire, 587 N.W.2d 232, 238 (Iowa
1998) (adopting Berkovitz in Iowa). Both prongs of the test are
important; “the mere exercise of judgment is not sufficient to establish
discretionary-function immunity because some form of judgment is
exercised in virtually all human endeavors.” Schmitz, 682 N.W.2d at 73.
36
“The first step in our analysis is to determine the exact conduct
that is at issue.” Walker, 801 N.W.2d at 556. To be sure, the State made
a choice in this case, but it was a limited one—to allow improvement of
Storm Lake by dredging. Thus, the immunity might apply if the estate
challenged the State’s decision whether to allow dredging. See Anderson,
692 N.W.2d at 366 (concluding the discretionary-function exception
applied to a university’s decision whether to keep its library open during
a severe winter storm); Goodman, 587 N.W.2d at 239–40 (concluding the
discretionary-function exception applied to a city’s decision whether to
excavate an abandoned landfill); cf. MS Tabea Schiffahrtsgesellschaft
MBH & Co. v. Bd. of Comm’rs, 636 F.3d 161, 168 (5th Cir. 2011)
(concluding the federal discretionary-function exception barred “failure to
dredge claims”). But the estate makes no such claim. Instead, it
contends that, having made the initial decision to allow dredging, it was
the State’s duty, in view of the severe risk of injury or death to boaters
using the lake, to exercise reasonable care in prescribing safety
standards to be followed by the dredge operators and evaluating the
operators’ compliance with those standards. I agree. The actionable
conduct is not the initial decision whether to allow dredging, but the
follow-on decisions about safe maintenance and operation of the dredge.
“Having identified the conduct that allegedly caused the plaintiffs’
harm, the question becomes whether the conduct is of the type that the
legislature sought to immunize.” Ette v. Linn-Mar Cmty. Sch. Dist., 656
N.W.2d 62, 68 (Iowa 2002). Unless the State “genuinely could have
considered and balanced factors supported by social, economic, or
political policies, we will not recognize the discretionary function
immunity.” Anderson, 692 N.W.2d at 366. The State contends its
decisions rested on a balancing of public policy factors such as safety,
37
conservation, and water quality. However, “[t]he mere existence of a
sweeping safety consideration does not catapult the [State]’s actions into
the zone of immunity.” Graber, 656 N.W.2d at 166. “Almost every
decision made by a public employee is done with respect to general safety
considerations.” Id. Furthermore, while the initial decision to allow
dredging may have properly considered some environmental factors, I
find it much less likely that the number or location of warning buoys
placed on the dredge pipe could have had any appreciable effect on water
quality or conservation efforts. Because the State “has not articulated
any . . . policy concerns central to its actions, it has not met its burden to
show the discretionary function immunity applies.” Messerschmidt v.
City of Sioux City, 654 N.W.2d 879, 883 (Iowa 2002).
III. Conclusion.
The majority expands the public-duty doctrine “far more broadly
than is necessary to strike the proper balance between protecting the
[State] from sweeping liability . . . and allowing [its] citizens the chance to
prove that their government has failed them miserably.” Woods, 63 A.3d
at 558. Even if we retain the doctrine—and I submit we should not—its
application is inappropriate under the circumstances presented here.
Furthermore, I believe the discretionary-function exception does not
protect the State beyond its initial decision whether to allow dredging. I
therefore respectfully dissent in part.
Wiggins and Appel, JJ., join this concurrence in part and dissent
in part.