In the Matter of the Estate of Johnny VAJGRT, Deceased, Bill Ernst, Inc., Intervenor-Appellant

to have top. at the You have some- I find that Officer Accordingly, would go. dis- where to exercising prison-related was Walston take he did not allegedly when cretion course, my colleagues’ even under Of protect from a steps to Walker sufficient may well the fact finder decide approach, testimony de- Officer Walston’s threat. reasonably and that Officer Walston acted prison policy considerations scribes However, reject claim. thus Walker’s into his that entered decisions: 669.14(1), I believe the section adopting in the they get when loud people, [M]ost an immuni- legislature provide intended to day your it room so draws middle calls a judgment these ty for kinds problem, people— most to attention officer. correctional all, say you looking for an not as —are agree my colleagues’ I with conclusion to be- They’re looking for the CO out. discretionary exception function to they involved so don’t have come allegation to apply does Walker’s way to blows. That —that’s come and Activity Specialists Bogdanski Stipe around here a lot of times. works properly supervise to exercise failed actually was turnout which Walker you say, to They get want to involved injured. allegation ap- This struck that off. hey, you need knock There negligence to involve pears garden-variety any fighting to be here. I going ain’t prison-related than an rather exercise you. you. eyes watching on I’m got my agree I also that the intention- discretion. keep going on. And that Don’t—don’t exception apply al tort does not here and everybody they easy an out. So gives join part opin- thus III. C. of the peers to lose to their don’t have face ion. here.... inside reasons, I concur in foregoing For the dissent in part part. ... first continuum of [TJhat’s approach you how deal it. You WATERMAN, J., joins this concurrence your presence. It’s You talk to them. part part. dissent how You tell them. You see it’s them. prog- out. how it

going to work That’s

resses. always

It doesn’t start from one and one, three, two, on to like four a

go way presented. order it’s

policy if you skip over it’s—

Sometimes have to about, you go if turned have to a it’s Johnny Matter In the of the Estate bat, on degree right but higher off Deceased, VAJGRT, progression, just normal it’s like minor go You tell reports. You’d with them. Ernst, Intervenor-Appellant. Inc., Bill them give them not to do it. You 10-1088. No. warning. give them verbal You responsibility Make them do a written. Supreme of Iowa. Court report. Aug. 2011. they just goes up It all unless line you go don’t listen and have to

higher degree. You don’t want start Hoglan

Theodore R. of Condon & Ho- Firm, glan Marshalltown, Law appel- for lant. southerly Barry also flows Kaplan S. Burnett Creek A. Nine

Melissa LLP, Nine, it reach- Vajgrt’s property Marshall- before & Kaplan, Frese town, property. es the Ernst In the fall of appellee. fallen tree Vajgrt concerned that a became near of and the confluence Burnett Creek MANSFIELD, Justice. the a and Iowa River would create dam ap- question presented The sole up cause to his land. water back onto punitive right a to dam- peal is whether Therefore, Vajgrt sought permission to en- wrongdoer. of the the death ages survives ter land to the tree. onto Ernst’s remove occasions, we have previous several On initially Vajgrt’s Bill re- Ernst refused be damages may not held that quest, City after the Marshalltown but of of a deceased from the estate recovered to agreed Vajgrt that could access its land v. Le Mut. Rowen Mars tortfeasor. See tree, to Vajgrt explained remove the and (Iowa Co., 1979); Ins. N.W.2d to Ernst it would be convenient that more Rahm, 630, 632 v. Wolder go gave Ernst through property, Ernst’s (Iowa 1977); v. Stoufer, Stevenson Vajgrt proper- to come onto his permission (1946); 517, 21 N.W.2d ty to fallen remove the tree. 146, 147-48, Hobson, (1884). Upon our re- N.W. 875-76 a hunting trip then left on to Ernst view, persuaded we are we should not time, During Vajgrt went Colorado. Therefore, precedents. reconsider these onto individ- property Ernst’s another affirm below. judgment we the just ual. fallen removing Instead of

tree, however, Vajgrt person and the other Background I. Facts Proceed- equipment approxi- used to their tear out ings. mately forty live trees on that were along property Ernst’s Burnett Creek. Ernst, thirty-three-acre a Bill Inc. owns land tract of north of Marshalltown. he trip, When Ernst returned from his by Highway 14 property Ernst is bordered had angry Vajgrt was to have found that west, by Johnny owned property to the trees, uprooted just numerous of instead north, city-owned property to Vajgrt to removing single tree which he had for east, River to and the Iowa the south. given pur- been not permission. Ernst did in a generally Burnett Creek meanders time, a legal sue claim that however. River, at southerly to the Iowa direction Vajgrt away passed on November through portion times the eastern of 23, 2009, 2008. filed a April On Ernst Ernst and at times property compensatory claim in probate seeking edge property western owned damages the diminution of an for value property Marshalltown. The Ernst is trees, his the value of property, undeveloped, largely wooded area located restoration, the expense puni- Ernst as well as floodplain annually. a that floods tive purposes. damages.1 uses the for recreational land damages statutory 1. Ernst did assert the claim for under section 658.4 not law). per- available a the common We assume Ernst treble that is when under tree, timber, any bring did a claim the statute "willfully injuries] son such because seeking statutory for actions shrub on the land of another." Iowa Code limitations (2009); expired. Code Tyler, penalty had See Iowa 658.4 see also Johnson v. 1979) 614.1(2) (Iowa ap- (holding (two-year limitations statute of plies penalty”). plaintiff both actions "for a statute cannot recover treble Following hearing, suffer; a contested the dis- who has been made to but not as For, right. a matter of per trict court awarded Ernst tree while he is $57.50 entitled under the property removed from Ernst’s total law such sum as $2300, fully will any compensate him for injury but declined award sustained, punitory whether damages, stating, is well-settled “[I]t assessed, damages shall Iowa that while a tort action survives assessment, tortfeasor, amount of the is left to the the death of the jury. discretion of the ages cannot be awarded the admin- istrator of the action, tortfeasor’s estate.” Ernst Plaintiff right had a on ac- appeals, raising only legal the issue wheth- count spoken of the slanderous words by defendant], punitive damages er a claim for should [the for such sum as would upon abate the death of a compensate tortfeasor. her for injury. the This action,

was her cause of and this is what II. of Review. Standard preserved was her the statute at his death. But personal she had no punitive Whether claim for dam interest in the punish- of his ages survives the death of tortfeasor and concerned, ment. far as So he was the may pursued against be the tortfeasor’s punitory power of the law ceased when Therefore, a legal question. estate is our he died. To exemplary damages allow review is for the correction of errors at now would punish legal be to his 6.907; R.App. law. Iowa P. Bremer v. personal representatives wrong- for his (Iowa 2007). Wallace, 804 act, ful but the civil law never inflicts punishment. vicarious Analysis. III. 147-48, Id. at 19 N.W. at 875-76. In long-standing in rule this state short, that, emphasized because the recovery bars the damages punitive damages role of punitive, is rather judgment.

when the tortfeasor dies before compensatory, than such should Sheik, In decided when Iowa had been a not be person awarded when the to be forty years, state for than less we first punished has died. 147-48, announced this rule. 64 at Iowa holding This subsequently was reiterat- 19 at 875-76. N.W. Sheik involved suit Stevenson, ed Iowa at 21 237 Allegedly, slander. the defendant stat (“[T]he right at dam- N.W.2d such falsely presence plaintiffs ed of the ages did not survive the death of the husband he had had sexual inter wrongdoer either at common law or under plaintiff. course with the Id. at Wolder, statute[.]”), our survivorship N.W. at 875. The defendant during died (“[A] right N.W.2d case, however, pendency of the ages wrongdoer’s does not survive the court jury district declined to instruct the Rowen, death[J”), and 282 N.W.2d at 661 punitive damages against on his estate. (“[S]uch an award is not made one 146-47, Id. at plain 19 N.W. at 875. The deeeased[.]”). affirmed, appealed, tiff explaining: and we damages are punish- argues authority Such awarded as a Ernst that this line of wickedly ment of the man who has is now obsolete and should be overruled. another, wantonly rights violated the Ernst relies on Iowa’s current survival rather than for compensation of the statute as set forth Iowa Code section (2009), wrongful one who suffers from his act. 611.20 Iowa’s true, they chapter It is are awarded to the one statute as set forth Iowa Code use or legislature, its continued recognition in various 668A, own and our change language of the only failure to pun- not cases that construed, power tortfeasor, so deter others statute but also ish the being re- change interpreted the law as the reasons stated For from like conduct. circumstances, as one to garded, in such arguments these herein, none of we find solely by legislature.” be exercised persuasive. Soward, 650 Transp. v. Dep’t Iowa 611.20. A. Code Section (Iowa 2002) (quoting Cov N.W.2d statute, survival According “[a]ll to Iowa’s 34-35, Craemer, er v. action shall survive causes of (1965)). 595, 599 notwithstanding the death brought short, reliance on the survival statute the same.” or liable to entitled person was carry day when Sheik did argues that § 611.20. Ernst Iowa Code has anything, argument If decided. lean toward logically “would provision today, given legislature’s force less damages” even [punitive] the allowance repeated reenactment of the survival stat- of the tortfeasor. after the death the hold- attempting ute without to disturb However, potential problem one in ing Sheik. punitive is that dam position Ernst’s 1986, Chapter B. Iowa Code 668A. of constitute a distinct “cause ages do not general assembly the enacted a law relat- Rather, of relief they are form action.” exemplary damages. or ing punitive to of action. Se to the main cause incidental (codified 1211, § Acts ch. See 1986 Iowa Wood, 94, 100, bastian v. (1987)). at Iowa Code ch. 668A Under (1954). Furthermore, 841, 844 N.W.2d statute, see 1987 the as revised survival statute in ef a similar Iowa had plaintiff may § ch. Iowa Acts was fect in 1884 when Sheik decided. exemplary damages if punitive recover or (citing at 875 Iowa at 19 N.W. “by a of plaintiff proves preponderance (1873), provided which Code section clear, evi- convincing, satisfactory “may brought, of action that all causes dence, the conduct of the defendant from notwithstanding person the death of the willful which the claim arose constituted same”). spe or hable to We entitled disregard rights for the or and wanton rejected proposed the same con cifically safety of another.” Iowa Code then, survival statute back struction of the 668A.K1) (2) (2009). (a), plaintiff § If the id., legislature has reenacted that the defendant’s conduct also shows in various forms without survival statute plaintiff, at the specifically” was “directed holding in attempting to disturb our Sheik. full plaintiff paid shall be then presumed is to legislature “The dam- punitive exemplary amount of the or law, including of the case know the state (2)(a). 668A.1(1)(6), awarded. Id. ages law, a statute.” State at the time enacts However, conduct was if the defendant’s (Iowa 1980). Jones, 296, 298 v. 298 N.W.2d specifically plaintiff, at the not directed our legislative infer assent to often “[W]e twenty-five may only up receive plaintiff prolonged legislative si precedents from exemplary dam- punitive of the or percent State, McElroy 703 N.W.2d lence.” awarded, being with the remainder ages 2005). (Iowa decisis The rule of stare trust fund to paid reparations into a civil pro- indigent litigation civil help pay con- especially applicable where the “is programs. assistance by previous grams or insurance placed on a statute struction (2)(6). 668A.1(1)(&), acquiesced by Id. long decisions has been exemplary damages punish- is silent on whether was that of chapter But 668A ment. purpose exempla- The additional of a tortfeasor’s punitive damages survive ry damages presently discourage/de- is Therefore, it is difficult to make death. ter others from like conduct in the future.” legislature intended to the case that the precedents in this existing overturn the agree We with Ernst that Sheik did not Jones, at 298. Our area. potential goal address this just the rule that court had reiterated ages. simply It contrasted the compensa- the tort- punitive damages do not survive tory damages function of actual with the again in 1979. feasor’s death 1977 and “punitory” punitive damages. function of plausible It seems more to conclude Yet Rowen was decided in time making we were it clear that legislature change “puni- did not intend to tive purposes[:] serve two main wide-rang- law when it enacted recent case punish and to deter.” 282 subject ing legislation on the 662; (“[Tjhey see also id. at 661 al- are addressing in 1986 without punishment lowed as both a to the wrong- recoverability punitive damages from others[.j”). doer and a deterrent Even persuaded that the estates. We are so, Rowen, again we reiterated the lead chapter enactment of 668A should us holding abate long-standing prece- to reconsider our the death of the upon tortfeasor. Id. at dents. Thus, regardless any 661. possible The Policies Behind Punitive C. broadening potential goals served Damages. have We said awards, punitive damage previ- we have exemplary damages purposes: serve three ously adhered to the rule that (1) (2) deterrence, and punishment, specific damages not against should be awarded (3) Sebastian, 246 general deterrence. wrongdoer. the estate of a We therefore (Punitive 100, at Iowa 66 N.W.2d 844 policy argu- do not believe that Ernst’s damages punishment serve “as a for the ments warrant a reconsideration of our particular party warning involved and as a precedents. future, an him in example Notably, ap the same follows may to all man- others who offend like criminal proach respect prosecu damages ner. The award of such consti- long It law in tions. has been the an tutes effective deterrent to such offend- prosecution state that a criminal abates ers, salutary society protection upon the death of the defendant. See public general.”); see also State, 228, Maghee v. n. 2 773 N.W.2d 231 Co., Walgreens McClure v. 613 N.W.2d (Iowa 2009) authorities). (citing Even (“Punitive (Iowa 2000) 225, damages 230 though may general criminal fines have a punishment serve ‘as a form of and to wrongdoers, deterrence effect on other deter others from conduct which is suffi- continue a criminal proceed state not ” ciently egregious remedy.’ to call for the ing after the dies to defendant recover Crookham, (quoting Coster v. from estate. v. fine his her See State (Iowa 1991))). 802, 810 Kriechbaum, 457, 458-61, 219 Iowa 258 law,

Citing this Ernst that argues case (1934) 110, (holding 110-12 that N.W. general deterrence role of his conviction when defendant dies while by allowing would be advanced appeal, the action in toto and is on abates recovery initio, of such from a tortfea- prosecution ab and the costs of can it, puts sor’s estate. As Ernst “Sheik was not be assessed the defendant’s 382, estate); day only Corrigan, decided in a when the v. purpose Babbitt 576 (1912) Also, 466, that,

383, 138 (stating Iowa’s rule this area is 467 N.W. context, jurisdictions unique. can Most other disallow “[pjunishment in the criminal man, punitive damage recoveries after upon a dead nor can imposed not be wrongdoer present, approxi- has died.2 At as his es imposed penalties mately thirty-one jurisdictions in addition tate”); Mwt. Ins. Co. v. Pac. Life cf. 1, 19, 1032, Most of approach.3 111 to Iowa follow this 499 S.Ct. Haslip, U.S. (like Iowa) (1991) 1, be- 1044, (noting jurisdictions these do so L.Ed.2d 20 113 rulings, court rather appellate have described as cause of been legislative expressly pro- than enactments quasi-criminal). Zitter, Annotation, 67)); Thompson v. Estate 319 Jay M. Claim 2. See of Petroff 400, (Minn.1982); Swviving Damages in Tori as Punitive Action 408 Hewellette v. Wronged, 703, 885, (1891) or Person 30 Death George, 68 Miss. 9 So. 887 of Tortfeasor 707, (1984); Timothy R. A.L.R.4th 712-13 (subsequently codified at Miss.Code Ann. Bornstein, Punished, & H. Robicheaux Brian (West, through leg § 2011 91-7-235 Westlaw Empirical Perspectives on Dead or Alive: sessions)), grounds islative ovemtled on other Awarding Damages Against Punitive Deceased Glaskow, v. Glaskox ex rel. Denton 614 393, Pol’y Defendants, Psychol. Pub. & L. 16 906, (Miss.1992); Tietjens 907 v. Gen. So.2d ("The (2010) jurisdictions 413 75, (Mo.1967); Corp., Motors 418 S.W.2d 88 have have considered issues barred 487, Anderson, 204, v. Nev. P.2d Allen 93 562 defendants, damages against deceased (1977) (subsequently 489-90 codified at Nev. usually interpret must civil statutes but courts 41.100(2) (West, § Rev.Stat. Ann. Westlaw issue.”). that are silent on Sess.)); through Special 2010 Jaramillo v. Co., 337, following jurisdictions currently adhere Providence Wash. Ins. 117 N.M. 871 3. The 1343, (1994); majority approach: to tire Idaho Code Ann. P.2d Gordon v. Na 1350-52 5-327(1) (West, through than, 464, § Westlaw 2011 Chs. 43 A.D.2d 352 N.Y.S.2d 465 1-335); (West, Vt. Stat. Ann. tit. 1454 (1974) (currently codified at N.Y. Est. Powers 28); through 2011 Sess. No. Fehren Westlaw 11-3.2(a)(1) (McKinney, & Trusts Law Quackenbush, F.Supp. v. bacher Sess.)); Westlaw Harrell v. (D.Kan.1991) law); (applying Kansas Bowen, N.C.App. 635 S.E.2d Marquez, F.Supp. Sanchez Gilbert, (2006); Mongold v. Estate 1978) law) (cur (D.Colo. (applying Colorado 32, 1245, Ohio Misc.2d 758 N.E.2d 1247-49 rently § codified at Colo.Rev.Stat. Ann. 13- Barton, (Ohio Ct.C.P.2000); v. 200 Morriss 1, (West, 20-101(1) through July Westlaw 4, 451, (1947); P.2d Okla. 190 459-60 Ash 144, 2011)); Colligan, Doe v. 753 P.2d 146 Saunders, 139, 924, v. 251 Or. 444 P.2d craft Gibson, 476, (Alaska 1988); Evans v. 220 Cal. (1968) (currently 926-27 codified at Or.Rev. 389, (1934) (subsequently 31 P.2d 395 codi (West, through § Stat. Ann. 30.080 Westlaw (1992)); § fied Cal.Civ.Proc.Code 377.42 Howard, session)); emergency 2011 Aldrich v. Breeden, Jonathan Woodner Co. v. 665 A.2d 125, (1864) (currently 8 R.I. 127 codified at 929, (D.C.1995); Byrd, 938-40 Lohr v. 522 (West, § R.I. Gen. Laws Ann. 9-1-8 Westlaw 845, (Fla. 1988); So.2d 846-47 Morris v. Dun 321)); through Jan. Ch. Olson- 2010 Sess. can, 467, 1045, 126 Ga. 54 S.E. 1046-47 Kilcoin, 254, (S.D. Roti v. 260-62 (1906) (subsequently codified Ann. at Ga.Code Gill, 39, 2002); Hayes v. 216 Tenn. 390 (West, through Reg. § 9-2-41 Westlaw 2011 Garza, 213, (1965); S.W.2d 217 In re Estate of Sess.)); Kemp Crabtree ex rel. v. Estate of 1328, (Utah 1986); 725 P.2d 1330 Dalton v. Crabtree, 135, (Ind.2005); 837 N.E.2d 138-40 Johnson, 102, 647, 204 Va. 129 S.E.2d 650- 913, Cooper, Stewart v. Estate 102 S.W.3d (1963) (subsequently 51 codified at Va.Code Ricks, (Ky.2003); v. 30 La. 915-16 Edwards (West, through §Ann. 8.01-25 Westlaw 2011 926, Knowles, (1878); Ann. 928 v. 62 Prescott Sess.)); Bragg, Reg. McWilliams v. 3 Wis. 277, (1874) (currently Me. 279 codified at 424, (1854) (currently codified at Wis. 18-A, (West, § Ann. Me.Rev.Stat. tit. 3-818 (West, through §Ann. 895.02 Westlaw Stat. Sess.)); through Reg. Wil Westlaw 2011 1st 520, 31)); Artery, Parker v. 889 P.2d 212, 2011 Act Wainwright, kins v. 173 Mass. 53 N.E. 397, (Wyo.1995); Restatement (1899) 524-25 see also (currently 397-98 codified at a, 926(b) (Second) 230, (West, §§ cmt. of Torts § 2 Mass. Gen. Laws Ann. ch. (1979). Westlaw 2011 1st Annual Sess. Ch. damage probate against Vajgrt’s recoveries.4 estate. no hibiting punitive While fact, claim, that fol- one jurisdictions in a number of contests the timeliness of the 614.1(4) rule, general (five-year there are see Code statute low injuries to Iowa Code sec- of limitations for to property), survival statutes similar Nevertheless, Vajgrt longer their courts is no available to tion 611.20.5 defend testify why himself and punitive damage found that recoveries did he did not act with of the tortfeasor. “willful and wanton disregard not survive the death for the rights safety another.” Id. minority recovery view allows 668A.l(l)(a). In a circumstance in wrong- even when the which the impor- actor’s state of mind is only has died.6 But about eleven doer tant, direct evidence of that state of mind jurisdictions adopted position. have longer is no available. is a argue And it would be difficult there argument This can example, pressed trend toward it. For within be too far. decade, Sheik, courts in at least supreme punitive damages last Under rule have ruled for the first time not be if the three states recovered tortfeasor dies judgment, are not recoverable before even if the tortfeasor had testify opportunity after the tortfeasor’s death.7 on his or her own behalf. possi- another Finally, presents our case time, At why may appropriate reason the same we believe this is an ble damage upon policy arguments claims to area in which all the can abate Here, pressed example, death of the tortfeasor. the dece- be too far. For we property typical Ernst’s doubt that the Vajgrt upon dent entered tortfeasor makes possibility and caused the trees to be removed calculation about the of a 2005, judicial damage but Ernst did not seek re- tive award his or her es- tate, 2009, judgment. dress until when he filed a claim should he or she die before Inc., 1, thirty-one jurisdictions Surveying, ref- v. Fisher 4. Seventeen of the son 201 Ariz. 114, (2001); previous deny puni- erenced in the footnote P.3d ex rel. Estate of Farrell Gordon, 517, (Del. damage awards tortfeasor estates Bennett v. 770 A.2d 521-22 2001); Kealoha, 241, judicial precedent, despite Kaopuiki as matter of v. 104 Hawaii 910, any directly point. (Haw.Ct.App.2003); lack of statute on Further- 87 P.3d 924-28 Pen more, Price, remaining in a number fourteen berthy Ill.App.3d 216 Ill.Dec. jurisdictions, (1996); were the statutes in 666 N.E.2d 354-57 Tillett v. adopted already appellate after courts had Lippert, P.2d 275 Mont. Johnson, (1996); ruled that were not recover- G.J.D. v. 552 Pa. 713 Lavender, wrongdoer 1127, (1998); able after the died. A.2d 1129-31 Hofer 470, (Tex.1984); Perry v. 679 S.W.2d 474-75 Melton, 397, 8, W.Va. 11-13 (West, 299 S.E.2d § 5. Alaska Stat. Ann. 09.55.570 West- Raudonis, (1982); Sess.); see also Munson v. through Reg. law 2010 2nd D.C.Code 474, 1174, (1978) 10, N.H. 387 A.2d 1177-78 (West, through May § 12-101 Westlaw (stating although Hampshire New law 2011); (West, Fla. Stat. Ann. 46.021 West- punitive damages, compen does not allow for 2011); through July law Ann. Ind.Code satory damages 2011); survive the death of the tort- (West, through § 34-9-3-1 Westlaw "compensatory damages (West, feasor and the Minn.Stat. Ann. 573.01 Westlaw 19). aggravating circum awarded reflect the Reg. Sess. Ch. wanton, malicious, oppres when stances" involved). sive conduct is currently following jurisdictions 6. The follow Zuck, this rationale: Ellis v. 546 F.2d Crabtree, 139; Stewart, (5th Cir.1977) 7.See 837 N.E.2d at (applying 644-45 Alabama 916; Olson-Roti, Thomas, law); (D.S.C. 102 S.W.3d at In re 254 B.R. 1999) law); (applying South Carolina Haral at 260-62. Thus, gain ly punitory powers from a concluded “the marginal deterrence died,” to be law ceased when allowing punitive damages [the tortfeasor] rule punish a expressed estate seems and we disinclination to against decedent’s awarded wrongdoer’s for their benefac- All the more rea- heirs relatively to us small. Hobson, son, therefore, tor’s malicious conduct. Sheik v. to defer to our established 146, 148, prior 19 N.W. legislature’s deci- precedents (1884). Although this court has continued not to disturb them. sions in holding

to follow the announced IY. Conclusion. decided, I rationale since was believe the flawed, supporting gravely the rule is and reasons, foregoing we affirm the For I therefore would reverse and remand. court, including its judgment of the district punitive damages against to award refusal acknowledging importance While ' Vajgrt’s estate. the rule of the doctrine of stare decisis to AFFIRMED. law, this court has not hesitated to re nounce flawed common law rules. Kersten justices All except concur WIGGINS Servs., Dep’t Co. v. of Soc. APPEL, JJ., specially, who concur (Iowa 1973). willingness to revisit Our J., HECHT, who dissents. rules such finds its source the sensible fealty stability notion that law WIGGINS, (concurring special- Justice maintain a “should not be invoked to clear ly)- ly simply erroneous result because that’s specially. agree I write to I concur way past.” it has been in the Id. This the well-reasoned dissent. If we were to principle recognizes reality that courts develop the common law further this sometimes make mistakes and concedes area, might prior prece- I overrule our willing “we should as to correct our own dents for the reasons stated in the dissent mistakes as we are those of others.” Id. punitive and allow the court to award dam- view, my In this is one those times. ages against awarded the estate of a de- However, ceased tortfeasor. when the rejecting In the idea that dam- legislature jumped into the arena of ages should not be recoverable a it left most of our estate, Supreme tortfeasor’s the Arizona common law regarding rules has noted: Court instance, ages intact. legisla- logical why There is no reason courts ture’s inaction as to these common law a should allow award tips rules the scales not to overturn judgment, defendant who survives but precedent legisla- in existence when deny it where death occurs earlier. passed chapter ture Iowa Code 668A Suppose, example, two individuals (2009). I Accordingly, join am unable to equally culpable outrageous commit the dissent. and, prac- acts. One is comatose for all purposes, tical has no reasonable chance J., APPEL, joins special this recovery. of The other is dead. Is concurrence. way explain why there a the uncon- HECHT, (dissenting). Justice scious tortfeasor would have his assets majority liability, opinion exposed follows the rule while the adopted by this court Sheik v. Hobson. deceased’s estate would be immunized case, In that from it? decided we summari- Inc., by 201 sor’s estate are affected all of Surveying, Fisher manner Haralson v. (2001). predeath their benefactor’s choices and Although Ariz. 31 P.3d In conduct. some instances a benefactor’s following majority the rule have courts enhance, predeath choices and conduct immuniz- for the rule explanations offered diminish, in other instances the economic estates from ing tortfeasors’ outcomes for his beneficiaries. For better per- I find none of them age judgments, worse, experience or estate beneficiaries suasive. consequences the of pre- their benefactor’s explanation— common Perhaps the most they death decisions and conduct for which conclusorily by this court short- one noted legally morally responsible. are not or pur- ly suggests after the Civil the War — predeath When a benefactor’s choices or punishment of cannot be achieved pose adversely conduct consistent with the law Sheik, tortfeasor. deceased amount of for affect the assets available 147-48, Iowa at 19 N.W. 875-76. While estate, distribution from his beneficiaries I logical appeal, has some proposition generally are not shielded or held harm- should, purposes the law for of believe They less. take whatever assets are avail- view as an punishment, able to them from the estate consistent accomplish a form of appropriate means law. prevailing with the As Intermedi- A tort- departed. retribution Appeals ate Court of of Hawaii has ob- testamentary or intestate transfer feasor’s served: impact can have an on the lives of of assets The fact that the size of the tortfeasor’s long survivors after the tortfeasor’s death. estate would be reduced is not a valid predeath as his misconduct can have Just entering judgment reason for not injurious long after his consequences punitive damages against the tortfea- death, beyond reaches tortfeasor The beneficiaries of the sor’s estate. transfers grave property to effectuate right of the tortfeasor have no or estate Although the deceased through his estate. entitlement to more than the tortfeasor physically present per- tortfeasor is not lived, if he or she had would have had sonally the retributive effects experience to more than the net of the tortfeasor’s any punitive damage judgment against of legal all obli- payment estate after estate, his I believe it is reasonable to view gations, including judgments against disruption preferred plan of his punitive damages. estate for as a form of postdeath asset distribution Kealoha, 104 Hawaii Kaopuiki v. tortfeasor. punishment deceased (Haw.Ct.App.2003). P.3d simply I we were Accordingly, believe concluded in wrong when we Sheik directed legislature Where the has not power punish of the law to a deceased otherwise, law of Iowa should the common expires tortfeasor with his death. judgments against punitive damage allow contrary rule announced in estates. The A courts explanation second offered great comes at far too a cost to the in- following posits rule legitimate punishment served purpose nocent beneficiaries should not suffer con- damage judgments. sequences for the willful and wanton mis- But of whether my conduct of aside from benefactor-tortfeasors. can, I view, and as purpose punishment this notion misses the mark. A believe, should, achieved damage against the tortfeasor’s award remedy against the estate punishment punitive damage effects no on the benefi- estate wantonly willfully who ciaries. The of the tortfea- of a tortfeasor beneficiaries another, I in injures contemplating would overrule Sheik who is a willful or wanton purpose furtherance of the of deterrence act calculated to cause his own death and Price, Penberthy v. 281 Ill. another, alone. See by harm assuring them a crude App.3d Ill.Dec. N.E.2d advantage over the tortfeasor who survives (1996) (finding a sufficient de- his willful and wanton tort and civil judg- purpose punitive damages terrent for ment. against a tortfeasor’s estate even if the in general Deterrence sense would punishment of is purpose tortfeasor by allowing also be maximized a rule achieved). majority opinion As the cor- judgments punitive damages against for notes, rectly of goal deterrence be perceiving tortfeasors’ estates. Others specifically generally. viewed In the judgments for damages against deterrence, specific of the inquiry context tortfeasors’ estates will be deterred from a specific is whether tortfeasor would be misconduct, willful or knowing wanton by prospect liability motivated of his plans their estate and loved ones will for to refrain from will- similarly by be affected their willful and ful and wanton misconduct. the context extraordinary wanton misconduct. The deterrence, of general is importance general of deterrence alone potential

whether other actors will tend view, justifies, my in the reversal of Sheik avoid willful and wanton misconduct as a adoption of a new rule. Accord- consequence punitive damage judg- of a ingly, I respectfully dissent. against ment specific tortfeasor’s es- I a tate. believe common law rule autho-

rizing judgment a for

against the estate of a tortfeasor who will-

fully wantonly injured or power- another

fully serves as a deterrent both con-

texts.

The tortfeasor who understands the dis- tribution of the assets his estate could IOWA SUPREME COURT ATTORNEY disrupted by be a judgment BOARD, DISCIPLINARY consequence he die as a —should Complainant, of his willful or wanton misconduct prior another or from other causes to the entry judgment likely civil PARRISH, Respondent. Eric K. —will prospect. purpose deterred No. 11-0326. clearly deterrence is advanced when a liv- ing, potential tortfeasor knows his estate Supreme Court of Iowa. plan, usually children, benefitting spouse, Aug. 2011. friends, family, or disrupted by will be punitive damage judgment engages if he conduct,

willful and wanton tortious wheth-

er he survives imposition judgment

or not. The rule announced in

reaffirmed this case

militates the purpose specific tortfeasors,

deterrence for certain such as terminally

one who is ill elderly or one

Case Details

Case Name: In the Matter of the Estate of Johnny VAJGRT, Deceased, Bill Ernst, Inc., Intervenor-Appellant

Court Name: Supreme Court of Iowa

Date Published: Aug 5, 2011

Citation: 801 N.W.2d 570

Docket Number: 10–1088

Court Abbreviation: Iowa