*1 ly a reasonable where verdict is within

range as indicated the evidence with what

courts not interfere should jury also

primarily question.” See Corporation of Servicing

Mabrier v. A. M. 180, 183, (Iowa

Raytown, 161 N.W.2d Transportation

1968); Wilson v. Jefferson

Co., range reasonable

The verdict is within a decline to

as indicated evidence. jury ques- primarily

interfere with what is

tion.

Having arrived at the conclusion ver- excessive,

dict is not do not reach de- of error. assignments

fendants’ other

The case is

Affirmed.

All concur. Justices Eugene JAHNKE, Child, by

Ronald a Minor Friend, his Father and Next Frank Jahn ke, Appellants, Jahnke, Frank

The INCORPORATED CITY OF DES MOINES, Iowa, Appellee.

No. 54586.

Supreme Court Iowa.

Nov. *2 Moore, Moines,

Virgil appel- Des lants. Moines, Briggs, appel- Des L.

Jack lee.

LeGRAND, Justice. personal

This action seeks by Eugene Ronald injuries sustained child, ex- Jahnke, minor and for medical father, his his pense incurred on behalf neg- allegedly caused Jahnke, Frank failing ligence city in of defendant riot- properly protect said minor from large as- of a and unlawful ous conduct of Des semblage of citizens Moines on about 1970. We June plaintiff. fer to minor as the sole us on a chal reaches appeal dismissing lenge order to the trial court’s petition for failure to state plaintiff’s any relief upon action cause testing the sufficien granted. could allegations accept the cy petition, Tele Hagenson United thereof true. 1969), 164 N.W.2d phone Company (Iowa 853, 855; Farm Mutual Automobile State 1969), 166 Insurance Co. v. Nelson N.W.2d 803. passen- 26, 1970,plaintiff was a

On June father on Uni- his in a car driven ger Moines. city of Des versity Avenue in the by “concrete injured He was struck and objects thrown large hard blocks the ve- individuals” as large group heavily traveled along this passed hicle alleges Plaintiff thoroughfare. failing negligent Moines of Des was passing danger to plaintiff of the warn near people congregated motorists from street, although they were aware street failing close the danger; in which the vehicle and divert traveling away from a course supervise and failing to danger; known keep public street and control a nuisance; and in open and same free notify plain- due care to failing to exercise excep- pled do fall within to defendant and danger known tiff of a 613A.4; tions contained section plaintiff. unknown may upon negligence proof of he recover asking dismissal City filed a motion handling the dis- by the these petition grounds: plaintiffs turbance. *3 inju- liability personal for Municipal (1) hand, City, The on the other maintains solely is by or riots based ry inflicted mobs illegal con- damage resulting that from lia- imposing such violence statutes on mob assemblages is duct mobs or riotous not law; bility and not on common compensable under a statute discards which immunity, governmental defense of lia- immune Municipalities are (2) liability argues no The such more. upon act or bility tort claims based for specific only arises if a riot or mob vio- or of officers omission provides. lence statute so care, in the exercising municipality, due ordinances, and of statutes execution Although delin does not insurers not Municipalities are terms, position its eate these we take upon their safety of travelers prevail show that order to must

streets. alleged by plaintiff assuming, as the facts — must, truth —do not nuisance, we fall within he alleges Although plaintiff in section 613A.2. the definition of tort liabili- seriously that urge basis not does say liability prescribed this because We which upon set out no facts ty find and we by that statute for torts ex all bottomed. could be finding of nuisance cept by section 613A.4. excluded We the is- limit discussion our We therefore exceptions already have these indicated stand upon petition must sue which the Boyle application have no here. See city fail- negligent for fall — Burt, 1970), inju- personal plaintiff from protect ure which, by operation although affirmed riotous by violence ries reason mob split, on was not chal law a four-to-four conduct. lenged chapter on statement that 613A .the controversy into Similarly, bring immunity in “any eliminated common focus, sharp we consider the first designated previously tort accorded various ground of the motion to dismiss—that including subdivisions” cities city damage inflicted is not liable for and towns. a statute riotous mob the absence of

specifically liability. dismiss petition The and motion to imposing first squarely present for time properly dis- hold the We trial damages question inflicted plaintiff’s petition missed and we affirm. riot, resulting a mob assum- ing police depart- or its question answered is whether 613A, failing Sixty-second negligent ment been chapter have enacted prevent par- Assembly or control the outbreak. The making govern- General case, presented including municipali- argued ties so both subdivisions, mental ties, so consid- in tort to extent therein set trial court here. We liable city responsible er and it now. out makes decide showing upon riots or mobs inflicted petition alleges constituting If the matter carrying negligent force 613A.2, Code, a tort under section statutory police out duties. improperly sustained motion to dismiss was 613A, imposes liability for all Plaintiff insists since that section abrogated except these ex- immunity for all torts contained the four 613A.4, torts; ceptions none which the circumstances of section fails, plaintiff should mention It here that for under We here. applicable one alleged petition, includes as the facts in his dismiss authori- that the motion ty duty running care” is no the “due holds there from the grounds reliance of its officers, However, municipality, we or its to the statute. exception of the con- reaching individually which would entitle him to re- it in not considered have pro- cover from the for its failure clusion. ravages tect him from the of a mob or allege the petition does hold the authority There is no to the con- riot. any relief upon tort of a commission trary. hereinaf- reasons granted, could be a munici- out, hold further Although plaintiff us ter set does not cite dam- statutes, for mob-inflicted pality apparently upon liable these he relies *4 or to the property personal age, 368.7, to either section sections and 368A.- 368A.17 specifi- of statute a person, in the absence and section 743.7 of The of city. liability on the imposing powers such which cally deal the duties and of with and the control of riots officers municipal tort establishes 613A.2 Section part provides and mobs. Section 368.7 liability as follows: power to that cities shall restrain have prohibit “riots, noise, disturbance, provided in “Except as otherwise assemblies, disorderly punish any and to subject municipality is to every Chapter, person riotous, noisy, engaged in disor- or offi- those of its liability torts or for its derly conduct.” 368A.17 and Sections acting cers, agents within employees, and marshals and 368A.18 direct officers duties, employment or scope of riots, "suppress all disturbances out of a arising whether peace.” of breaches Section 743.7 function.” proprietary makes it a misdemeanor for officer to Lansing, Strong Town of held suppression neglect his in the ri- a the effect (Iowa 1970), assembly. otous defense to remove the language the commis- immunity from universally hold The decided cases except by sec- torts limited sion of all as may springboard not be such statutes a 613A.4, classes of four tion under which individual can re from which an operation of exempted from the claims are upon injuries for damages cover inflicted the statute. person property as a result of mob his Recovery damage must action. for such 613A.1, a tort is defined section Under upon specifically au based a statute which wrong results in “every which as civil it; general statute does not thorizes tort a person or in- wrongful injury death or permit recovery therefor. is not property and includes but jury upon negligence, actions based stricted to subject recovery for in- duty, and nuisance.” breach upon flicted citizens mobs is not a new one, although it has attained increased im- of tort include All definitions portance years because of the run recent starting point the violation a frequency of riots and violent demonstra- wrongdoer to his alleged ning from the recovery permitting tions. Statutes Dictionary, Revised victim. Black’s Law Torts, damages resulting mob violence date Ed., page Am.Jur., Fourth Century England. A 10, page back to 13th section page section page 926; number our states have had laws Gen such 367; Torts C.J.S. There more F.Supp. since before 1900. are now Bank, 62 Sibley dler v. State twenty than such Court, which have District (District Southern Note; remedies. 81 Harvard Law Review * * * 653; keep peace. Aftermath “The failure (1967), Comment: Budget,” imposed Balancing frequently the Riot: Such * * * upon 684; Quarterly statutes and counties. 50 Cornell Law cities Congress nor neither Nation But Creek 704. legisla- subject by any had dealt with the recovery only for allow of these Some ob- prior tion to 1908. fundamental property a few both property damage, is not the recovery stacle Most are damage personal injury. suit, sovereign to but the lack a substan- compensate strict statutes right resulting the damages tive recover riot without damaged one who is or its government offi- failure of part munici- proof of on the fault * * * peace. keep cers proof of although require pality, several claimant’s contention the defendant Important discussion is negligence. claimant, grantee, owed to own case reported a single is not fact there persons greater duty than it owed damage without protect him mob territory specific statute. Westminster mob violence violence, au- support in no reason finds Murphy Investing Corporation v. C.G. thority.” added.) (Emphasis U.S.App.D.C. Company (1970) 140 case, early Kentucky In an Prather F.2d *5 B. Kentucky (13 of Lexington, criticized, conceded, though is This said, Monroe) 559, (1852), the court the sub- articles on numerous law review principle know no that sub- “We of of law Liability: Note; “Municipal Tort ject. corporation responsi- jects municipal a to a Municipalities for Statutory Liability of bility safety property for the the of within Riots, 50 Damage Mobs and Caused limits; any its nor been territorial has case 699, 707; (1965), Quarterly Law Cornell principle cited in which such a has been Municipal Liability,” 14 N.Y. “Riots and recognized or established.” 858-862; Note; (1968), Forum Law Urban “Compensation for Victims of principle This was announced same Riots,” (1968), Law Louisville, Review Kentucky Columbia B. (16 v. Ward Pay 57, 65, 67; 184, Action: Who Shall “Mob recent more Monroe) In Price?”, Law times, of Urban the invariably has result been Journal 407, (1967), (1945), 417-420. same. In Steitz v. Beacon 51, 704, N.Y. the issue was 64 N.E.2d suggested, be- this, as some Nor have department afford a failure the fire im- rule general cause the adequate protection. arose fire The case years made munity prevailing until recent sovereign after had been any reason unnecessary to ascribe York, moved and still the court New decisions, liability. Some to a denial of upon in- right ruled there an was no which true, test, but in others the made this said, recover. dividual could The court placed squarely rule was on an absence 706, obviously page “Quite provisions these right. substantive fire terms de- protection] were not in [for protect signed personal interest of appears early An statement of the rule designed to clearly individual and were States 248 U. to Turner United 110, 291, mu- 354, 109, secure the benefits of a well ordered L.Ed. S.Ct. S. nicipal government enjoyed by all as mem- in a case Brandéis said where Justice community.” signif- bers of The court involving tribe a an Indian claim icantly say went on damage mob vi as a result of incurred imposed should not be to have such olence, deemed governments, “Like other obligation upon state, in the absence the Creek Nation as well [Indian in- injuries a clear indication this was was free from tribe] tent enactment. persons property due to mob violence in- question legislative We discuss liability without that there could cates later. tent statements All the ordinance. statute or page And, way.” at the other are courts too, rule an- case, upon relies been, it is said, has “There the court Torts, 2d, section nounced Restatement immunity of true, erosion some (b) on particularly page comment suit, municipalities states and 288(a). section fields in those mainly come about has responsibility patterns of Cicero, Huey In the established 1969 case decades supreme through set already been Ill.2d 243 N.E.2d have contracts said, areas of “Independent stat litigation court of Illinois —the segments the In those concepts ordinary sover torts. or common-law utory im- they away do courts, eign immunity, general rule extent barriers removing munity, simply municipality or liable its un- action suit, erecting causes of supply general fire new for failure to ** * law. developing common protection. Exceptions to the known contrast, imposing instances rule found have been would be special damage we was under riot-caused where region, a difficult individual, straight into particular marching acting courts plotted protecting from threat a material witness before never ” * * * hold, this, And, page “We parties. injury of third at ened alone.” has, Company Murphy (Emphasis therefore, that the added.) right recover ‘no substantive present, at Petersburg In Henderson St. aof from failure resulting (Florida App.1971), 247 a citizen So.2d keep officers government requested police had protection deliv- while States, supra, v. United peace.’ [Turner ering packages particularly dangerous *6 110, L.Ed. 358, at at S.Ct. 248 U.S. neighborhood. It was not afforded and he 291].” was shot At page and killed while there. effect authority to the same Other case said, Appellate Florida “The Court Miami, City of Wong v. may in be found general rule is that neither a 1970), where (Florida 237 So.2d or its sup- is for liable failure damage was for riot said the court ply general police protection, though even sovereign “merely because being denied not corpora- our courts have held sufficiently relaxed immunity had not been tions liable for negligence affirmative prior decisions.” intentional torts committed their * * * employees. Excep- officers or Minneapolis, 284 Minn. City of Silver made, general tions to this rule have been was decided 266, 170 N.W.2d however, municipalities where the were un- exercise discretionary the issue of special duty particular der a to a individu- statute, Minnesota police power under ” * * * al. chap- appear in not which does provision language at ter Nevertheless this 613A. Investing Westminster Corp. C. v. G. be- do not page 210 is of interest: “We Murphy Company, supra, (434 F.2d at lifting bar that the lieve 523), the court statement, made this “Up to permit sovereign immunity intended now, the response unvarying which the [damage this a case such as given that, courts have query to is in- Had it resulting from mob violence]. municipalities absence of legislation, so, easily have do it could said tended to so pe- bodies are not has, example, the case for cuniarily responsible for destruction and * * *. lynching * * * injury wreaked rioting mobs. reported No Young case holds a “The case of National Board body circumstances, liable in these or indi- v. United Association Men’s Christian

States, L. but U.S. S.Ct. would have to be created an act an the legislature.” Ed.2d did not involve action under Tort Claims brought the Federal Again Amato v. York New plain Act, right of it did involve the but (U.S.D.C., District New York Southern tiffs recover in the Court of Claims for 705, 710, principle 1967), F.Supp. States sustained when United the court sustained a mo- was stated when Panama, troops, during riots entered language: tion to dismiss in this plaintiffs’ involved building. The rationale plaintiffs’ analogous is that claim liable “The reason the Harlan, here. Mr. in a involved it is immune failing to act is not because Justice * * * said, opinion, ‘Peti concurring duty is no sovereign because there they may tioners claim that recover on plaintiff.” any individual owed they “in showing bare that were afforded Motyka v. is found in A similar decision protection” has adequate an additional de N.Y.2d (1965), 15 of Amsterdam fect If courts which should noted. 597, 204 N.E.2d 256 N.Y.S.2d required consider the mili were whether negligence de- involving of the fire tary protection partic afforded a partment governmen- after the defense of “adequate”, they ular property owner longer available and tal was no required judgments would be to make equally had been made answerable cities directly best re which are left to officials private corporations with individuals and sponsible to the electorate. Appeals wrongs. Court the riot suggest *7 the for the ances are one must cannot I through the streets out think ‘ * * * extent extent ^[*] should decision protect Congress, appropriate to undeserving of relief. But it recognize that ^[*] While the the victims of today which the which compensated, regardless ^[*] not this property does rioters ^[*] say, the Government Court, to all control, every- injured however, civil ^[*] or any way military disturb- surging decide ^[*] time. n nicipality is not liable poration to general eign independent action “But decide whether New ^[*] immunity. to a 5fC just » York plaintiff, police ascertain as it is said: sovereign immunity, * * individual or and so, also, necessary whether irrespective * * * fire failure it is it is under a rule private * protection. sustain an necessary supply sover- a mu- under that, cor- particular property protect attempted the Running and through the case law litera- ” owns.’ question which each individual is ture on this the rationale which duty is no recovery denies because there in this is Another case of interest area owing municipality Stores, Hart’s Food Inc. v. of Roches force to individual Without citizen. ter, 44 Misc.2d 255 N.Y.S.2d duty, such there cause of ac- cannot be a said, where “At (1965), the court tion. point, let us dispose of claim that city-defendant at problem is liable common law for upon heart centers “The of the damages caused mobs riots. Su inquiry is a whether or not there preme duty part Court of the United States has corpora- on the of the steadfastly municipality held that incurs public tion an of the individual member damages no at common for public large —not the due at exercise —to sustained as result or riots. protecting mobs diligence guarding him right against That court held damages that the be inflicted could was not founded common law by Any study pri- must a mob. used, language such Sengstock, intent we consider the point.” focus on marily purposes to evil Pay be served Shall Who Action: “Mob sought assume the Law to be We Price?”, remedied. supra, of Urban 44 Journal existing knew the state page 412. at prior judicial interpretations law and au- is made same statement assume, provisions. statutory similar Liability,” 14 Municipal in “Riots and thor too, accepted its use in the of terms was page 860. Forum N.Y.Law there judicially established unless context contrary. clear evidence Corpora- Municipal McQuillin, also See tions, and Re- Ed., section 53.145 Third assume, therefore, In this case we 288, page 29. 2d, section of Torts statement no legislature was familiar with fact court construed tort include ever had petition failed al Plaintiff’s damage mobs, had done no court riotous found the upon it could be which lege facts separate inde- ever held the owed superior separate duty city owed him a pendent duty police protection to to furnish public generally. that which it owed public citizen as individual he obligation absence of such an In the whole, no had allowed recover. cannot covery damages plaintiff sus- such as specific of a riot tained here absence only talked de have So far we damage authorizing it. statute plaintiff from the protect duty to fendant’s crowd, what we unruly violence of the circumstances To hold under these too, plaintiff’s argu disposes, have said chapter 613A include provisions him of im must warn ment that defendant wrong within the definition of tort civil If, hold, there pending danger. type plaintiff seeks claim for support this action no sufficient contrary accept run recovery would obligation to question defendant’s interpretation. ed canons of individually, then there protect plaintiff 560; Am. page Statutes § possible to warn him C.J.S. no either Statutes, page section Jur., assemblage. danger from the unlawful Sutherland, 274; 2 page section Statu course, premise, of Plaintiff’s main Ed., Horack), tory (Third Construction principle govern- that the now discarded 314, 315, 4501, page and section section bar- was the obstacle mental Pickett, 327, 328; 4510, page Buchmeier v. as he ring recovery 1224, 1228, 1229, Iowa here that its authorizes claims demise State, Hubbard 163 N.W.2d v. personal in- against a suit Dilla (Iowa 1969); Overbeck Implicit by mob violence. juries inflicted ber, (Iowa 1969); 165 N.W.2d argument in this is the contention that City, Wilson to in- interpreted 613A must be Reinhardt, Dobrovolny (Iowa 1969); *8 depart- the negligence clude the 1970); (Iowa Cedar N.W.2d preventing controlling a ment either Cemetery Park Association v. Memorial un- riot or civil disturbance as actionable Inc., Associates, Personnel the definition of tort the der contained (Iowa chapter. summary, previous

In repeat 613A, accepted holdings the ab- We are that convinced interpretation rogated governmental rules of do not a de- by permit goal this. all in fense munici- The ultimate to all torts committed a statutes, course, pality construing except exempted is to deter the under give in legislative provisions to For the reasons mine effect the of 613A.4. discovering in enacting tent the In set out hold law. heretofore we further property injuries re- damage personal ger passing motorists on Univer- sulting sity failure negligent people Avenue from con- municipality, police department, carelessly gregated street, or its near said prohibit, prevent, or riot cannot and negligently control a failed to warn 613A.1(3) Eugene be a tort under the as defined Plaintiff Ronald Jahnke pled plaintiff; danger, facts and we therefore said or to street close said plaintiff’s petition hold attempt fails state and to to divert the vehicle upon any cause of action relief in which riding he was granted. could be course of traffic which would take danger it into an area known dismissing The order of the trial court employees. (613A.- Defendant’s said petition is affirmed. 2) Affirmed. failing supervise In b. and control

public street and commons within keep open and to the same MOORE, MASON, J., and C. RAWL- (389.12) free from nuisance. REES, JJ., INGS and concur. failing c. to exercise due care notify danger known Plaintiff of a BECKER, dis- JJ., REYNOLDSON to the Defendant and unknown sent. the Plaintiff.” law, motion Under our defendant’s UHLENHOPP, J., II joins Division alle admits truth of above dismiss of the dissent. Automobile gations. Mutual State Farm Nelson, (Iowa Ins. N.W.2d 803 Co. v. REYNOLDSON, (dissenting). Justice 1969). motion dismiss sustainable A certainty a appears to a where opinion, majority As indicated any relief entitled to would not be injury time of Eugene Ronald at Jahnke which could set of facts under his car on Uni- passenger father’s proved support claims asserted peti- versity in Des Moines. The Avenue Peterson, Pride N.W.2d him. divisions, the first for tion was in two 1970); Finan Allied Concord personal in- plaintiff’s damages for minor Hawkeye Co., Corp. cial Lbr. 172 N.W. requiring 35 juries alleged to be lacerations (Iowa 1969); 2d Newton fracture, stitches, fingers, broken a skull Center, Grundy 246 Iowa second divi- scars and other trauma. The 162, 164(1955). past and future sion was for father’s In this dis- expense his son. medical appeal purposes defend- For “plaintiff”. sent we refer to the son as only plaintiff’s injuries, ant thus admits not being As auto was driven defendant’s University it was “struck block of Avenue failing to negligent 1) were large, hard blocks and other concrete danger existing near plaintiff of warn of individ- objects by large group thrown missille-throwing University Avenue edge uals ran to the street who to divert traffic failing individuals ** approached the vehicle street, danger although close the em- known to such motorists was passing *9 negligence Allegations of defendant’s the ployees, failing carry to out 2) were : public statutory duty to a street control Department city, “a. In to warn concomitantly, that the Police and within the employees employees the Des dangers of of of known to defendant’s is above plaintiff. Moines who were aware of the dan- to and unknown plaintiff’s petition, gist reasonably the statutory obligation, of the absence of a to duty merely construed. there is or is a is to state not result, plaintiff’s state a a conclusion that treat opinion squarely Majority does legal to interests not entitled are issues, dis- but sustains the motion to these protection against defendant’s action ground, the claimed miss on different Parkwood, Inc., lack thereof. MacLean nonliability city failing “pro- to of the F.Supp. 188, 191 (D.N.H.1965). ** hibit, prevent, or control a riot quoted is the language taken from Prosser, his pages of text at 324-326 majority paragraph of holding last (4th 1971) Torts” ed. “The Law of 53§ variously opinion, and is found stated following points : the makes throughout the Plaintiff decision. never alleged specification, is he nor neces- words, ‘duty’ question is a of “In other sarily obligated carry in or- that burden any obli- defendant is under the whether der to recover. particular gation for the benefit cases, the plaintiff; negligence and in stated, Briefly majority’s rationale is the same, duty always is to conform the duty pro- and its owed legal reasonable conduct standard everyone, but tection from mob violence risk. light apparent plaintiff In not to the as an individual. * * * statement It is shorthand duty, there no “civil absence can conclusion, analysis rather than an aid wrong” upon tort liabili- which to base the recog- should be [I]t itself. chapter ty imposed municipalities by on ‘duty’ it- sacrosanct nized that 613A, Code, Implicit unspoken but self, expression the sum an concept in this rationale is the that a mob policy considerations total inis a holocaust or act of nature of par- say which lead law God, supplanting neg- all considerations of protection.” ticular entitled Here, however, ligence. negligence is (emphasis supplied) motion, pleaded Majority admitted. instrumentality opinion, emphasizing held at when it is de- the case bar Thus (mob) alleged plaintiff’s caused merely “duty”, this is had no fendant disregards injuries, em- be al- will not conclusion ployees’ negligence admitted which consti- lowed. proximate tuted cause. “duty”, said, at common No it is existed majority Finally, position takes the be- begs in this area. of course jurisdiction grounded cause no other has longer governs no question, as common law municipal liability prevent on failure to Beyond liability in tort Iowa. statute, control riots absence of that, contrary reaches our research spite should not be the first. In history English Early com- sult. cities, imposing liability 613A on law, the rule of dating back to Canute mon claimed the intended to create duty concept of (1016-1035), Dane exception it express did not in that provide police protection became im- chapter, exempt injuries claims governing unit to the extent posed caused mob violence. compensate imposing strict by majority’s We treat the issues raised breach. damaged the individual reasoning four divisons. in Statute confirmed Parliament I, Winchester, 2-3 c. 13 Edw. Stat. plain- I. Did owe a defendant 1714, 1 English Riot Act of and the tiff? I, 5, and amendments. Stat. c. Geo. found in a “duty”, heavily background is concept relied on historical Some Supreme States by majority, analytical opinion of the United of little aid. *10 790

Court, Sturges, 313, Municipal 222 Chicago Corporations, Brooklyn U.S. 37 L. 434, impor- L.Ed. 220-221: point Rev. S.Ct. rationale, majority’s tant to for if the true upon a policy imposing “The basis of most case governmental law was of government exercis- civil subdivision immunity repeated statement that no power police is familiar ing delegated authority impose decisional exists liabili- law. common every student of the ty injuries for mob-inflicted loses all its beginning of in the recognized find it impact light legislation. of our new people. system Anglo-Saxon only imposes statute not new munici- Hundred,’ early form very ‘The Thus pal liability (except in certain situations subdivision, answerable was held of civil here) specifically immaterial but nullifies divi- within the committed for robberies governmental function-pro- discredited statutes, beginning By a series sion. prietary function Section distinction. possibly in the statutes West- 613A.2, Code, 1971.

minster, 27th coming down to the on George few minority riot I. rule cases Elizabeth, the act relied II., 10, may majority, overtly find George chap. deny which do not liabili- act of ty principle on the recognition ground of the immuni- a continuous ty, distinguishable intrusted with on their facts or a civil subdivision property in its basis. protecting midst, dis- power and with Petersburg, 247 Henderson v. of St. function, may be answerable charge the (Fla.App.1971) So.2d must be viewed negligence affirmatively light of a absence tort shown, absolutely having as not af- liability statute in Florida. The Minnesota protection adequate to the obli- forded Supreme Court Silver of Minne (emphasis supplied) gation.” apolis, 284 Minn. exception indicates, (1969) denied on an true, Eng- these majority It is (discretionary state’s mu function) a number of adopted by lish statutes were nicipal liability statute not found in modifications our states with various petition Code Section Plaintiff’s liability. 613A.4. part imposed strict for the most Huey Cicero, v. Town of 41 Ill.2d said, by ignor- loosely it came to be Thus any allege 243 N.E.2d 214 did not precedent, there ing historical common defendants, specific omissions of caus damages resulting from liability for was no al connection between lack of conduct and of statute. absence mob violence injury, any knowledge by however, defendants denying liability, decisions Most plaintiff may danger. have been in With immu- did on the basis of so reference to the most recent York func- New “governmental nity grounded on the cited, important statutory case distinc “proprietary function” di- tion” vis-a-vis tion exists our law. In N.Y. Court gov- majority denies chotomy. While Act (McKinney 1963) Claims basis § function ernmental imposed “in rule, accordance general opposite view ex- ..same Corpora- applied Municipal rules of law as to actions in the su pressed Am.Jur., in 38 corpora 361; Municipal preme individuals or 652, p. tions § C.J.S. limitation, ap 73; Yokley, tions.” This which does not 773a, p. 3 E.C. Corporations § 613A, pear 464, p. has been Municipal Corporations § strictly applied deny in New York to liabil McQuillin, Municipal Cor- (1958); 18 E. 53.145, ity peculiar ed. the act or omission is p. (3d rev. where porations 542-43 Borchard, Liability government entity opposed to an indi 1963); Government Note, corporation. vidual This distinction Tort, (1925); 34 Yale L.J. Damage, governmental-pro in substance the ancient Liability for Riot Municipal Comment, prietary dichotomy rejected by the Iowa Hastings L.J.

7QI “Thus, incorporated towns, Prather cities and 613A.2. v. § Ky.Rep. by turned they wherever are or- Lexington, 52 559 invested their city of the or constituent ganic general officers acts with on the rule officers, concept re- supervision * * * a municipal and control over their streets not were liable, Strong v. Iowa are held without jected expressly action, 365 statute for Lansing, giving Town logical injuries of the cited caused criticism unsafe and defective 1970). Most decision, Investing Henry 26 Soper County, Westminster federal streets.” — U.S.App. Co., 140 Murphy Iowa Corp. v. C. G. to be 521 F.2d D.C. 434 Although concept is not followed (1971). Brooklyn 434 L.Rev. found 37 jurisdictions (57 Am.Jur.2d, Municipal, School, p. Liability and Tort State § Further, by majority cases cited consistently 58) logically it was ex- for attempt assign reasons do .flat tended Iowa strike the shackles of time- assign the same liability denial immunity. governmental justify employed to long theses so worn The essence immunity. governmental statutory authority city is, “be- of these cases underlying thesis parks, 389.1, maintain found in was § owe everyone, we cause we owe municipal liability Florey basis for reasoning would nobody.” Such Burlington, Iowa N. if it were preposterous dismissed as (1955). granted Power W.2d enshrine- unthinking and unfortunate its parks by to establish and maintain 368.30 § in our jurisprudence. ment power as well as granted 389.12 liability v. City foundationed in Fetters policy considera- ignore do We Moines, Des 260 Iowa N.W.2d by ma- relied on posed by decisions tions City, (1967) and in Lindstrom v. Mason spectres fal- raised are Most of jority. 256 Iowa N.W.2d here, lacious, argument defendant’s as is using public a strict Where one is assumed restroom because door, injured than ordi- imposed rather because of defective we to be standard is Municipal liability principles. municipal liability upon the found bottomed nary tort permissive statutory authority required granted to exercise employees should be circumstances, applying public cities to establish and maintain rest- under due care Fault, proximate City Waverly, rooms. Bauman v. prudent man test. foreseeability (Iowa 1969). opinion all involved are N.W.2d 840 cause question at page states 847: and must be established. liability for is not strict

here Florey “In , Burlington, question It is admitted mob violence. 316, 319, 770, 772, em- negligence said, municipal corporation ‘The is not alleged plaintiff’s in the manner ployees for negligent liable acts of petition. engaged in performing “duty” concepts liable, functions private but it is as is a jurisdiction corporation, negligence per in our historic deeply rooted obligations duties; creating forming proprietary it is not unique case delegated immune powers from due grounded municipalities. Judge dangerous resulting In 1868 conditions state to court, Dillon, statu- its own misfeasance speaking for this said non-feasance municipali- delegation power to a matters.’ tory im page [municipal also said at ‘It it a ty carried with concomitant complete munity] is not respect subj ect matter: injuries occurred after plaintiff’s Here accord accountability such as is judicial *12 only Not chapter 613A law. became rule ed the from freedom state — immunity abrogat- municipal governmental the servant superior where respondeat ed; municipality declared to be activity.’ governmental engaged officers and sponsible for torts added.) (Emphasis employees: city’s it clear the make opinions “These 2 I.C.A.) (613A.2 “Section Act and control authority duty arises because every clearly provides liability of munici dele- have been activity particular over a pality of its offi for its torts and those (emphasis supplied) it.” gated to cers, employees, agents acting within scope employment of their or duties importance was the con particular here Of governmental of a which arise out cept that the again enunciated in Bauman Iseminger proprietary function. v. ap municipal immunity recognized then Iowa, County, Black N.W.2d re- Hawk 175 suspend plied only the doctrine 374, 378; Coun Larsen Pottawattamie relieving city v. spondeat superior, thus Strong ty, Iowa, 173 servants en N.W.2d liability for torts of its 581.” — Lansing, governmental v. Town 179 N.W.2d gaged in functions. City Des 367 applied in Mardis v. rule was Moines, 240 Iowa 34 N.W.2d Majority unchallenged rightly concedes the municipality held where the was Burt, Boyle statement from v. 179 N.W.2d city negli employees liable for the tort (Iowa 1970) chapter 613A

gently performing governmental “any immunity eliminated common Mc cleaning street function. See also previously designated tort accorded various Betten Building Company v. Grath including subdivisions” cities dorf, 248 Iowa Liability imposed towns. (1957). torts, just torts” “common law torts”, just “old torts” or “classical but operative facts these cases ante- “torts.” dated 613A. The thread interwov- en through the decisions was this: where principles mind, With these we turn city’s misfeasance or nonfeasance specific statutory consideration of the statutory power authority exercise aof powers creating “duty” owed danger- resulted in a defective condition or the case before us. causing injury, ous held to situation was municipality’s negligence be in exercise Statutory II. of defendant of a function and respect to streets. specific ensued. acts Where 389.12, Code, Section relevantly directed the same function provides, involved, were they it was held were en- gaged governmental activity. in a From Duty supervise. "389.12 They shall premise immuni- followed care, supervision, have the and control ty respondeat superior. cut the cord of public of all * * * streets, avenues tort; suspended recognized city, within the and shall cause imposition liability. of vicarious Even kept repair same and in open then, required defendant municipality and free from nuisances.” affirmatively raise defense liability. City, incur Groves v. Webster The cities’ authorities power have the 849, 860-861,

222 Iowa regulate N.W. traffic pro- on the street and to Brown, cf. McKeown v. 167 Iowa hibit assemblages thereon, 321.236(2) (1914). 149 N.W. 593 greater injury tential by the Analo- power granted latter. gous reasoning the basis created is found Pietz language 389.12 of § Oskaloosa, involving 250 Iowa decisions in our N.W.2d 577 beyond street falling billboard City, of Sioux area [Blivens presence in the street of an assem (1892)]; a defec- 52 N.W. blage persons engaged in unlawful ac post sign supported metal

tively [Hall constituting tivities safety menace Keota, 248 Iowa Town way might users well nui be a *13 dangerous allegedly and (1956)]; 784 duty creating sance under 389.12. We § Adams, v. 259 stop go sign and [Gorman have never limited “nuisance” to condi the 75, (1966)]. 143 648 Iowa N.W.2d pres tion of the surface of the street toor clearly alleges de- petition semi-permanent Plaintiff’s ence of structures or ob department and other city’s police City Dodge, fendant of structions. Wheeler v. Ft. danger 566, of the aware 131 (1906); were Iowa 108 N.W. 1057 Par congre- people City 297, from the passing Marion, motorists menter v. of 113 Iowa 85 University of Avenue. gated (1901). in the area N.W. 90 Defendant, knowledge of its admitted with municipality The is not relieved from correspond- danger, power and the had the dangerous the because situation use care to control ing obligation due respect to a street is third created it 389.- keep open. Sections the street and persons. Holmquist Gray L.C. Const. 12, also had 1971. It 321.236(2) Co., 502, (1915); 169 Iowa 151 N.W. 828 duty to those the minimum warn additional City City, of 138 Iowa Pace v. Webster of persons in lawful use the who were 107, Mc (1908); 115 888 E. N.W. 19 danger prevailing. 40 of the there street 54.43, Quillin Corporations Municipal p. § 262,p. Highways § C.J.S. 115, 54.91, 1967). p. 257 (3d ed. rev. § pre Even absent the critical circumstances Marion, 113 City Parmenter v. In vailing here which defendant had al 297, 85 90 was Iowa N.W. leged knowledge, always the been rule has from injured by hay bale thrown required exercise due Liability denied loft street. above the guard care to or warn travelers city knowl- not had because was shown reasonably injuries might antici decision, edge how- practice. of this pated Spurling dangers from its streets. ever, city under reaffirmed Stratford, Incorporated Town of 195 and delegated the statute power 1002, (1923); Iowa 19 191 N.W. 724 E. said, McQuillin, 54.91, Municipal Corporations § * * * * * * if may be he “It p. (3d ed. rev. Gorman v. 257 continuously persistently threw bales Adams, 259 Iowa 143 N.W.2d 648 hay story second his prior adopted a rule two (1966), we below, with the building to the sidewalk city’s respect to Iowa decisions with implied, knowledge, express or in relation to streets sidewalks: duties thereby endangered safety city, and extends, merely to the “This streets, city persons using the walk, but to street or surface stop this reasonable care failed use things control en- within its those use, (113 dangerous be liable.” would using safety danger 93) at at Iowa 85 N.W. (259 at Iowa properly.” street or walk applicable directly reasoning at 651) 143N.W.2d bar, city admits case at where defendant concept include knowledge expanded in Parmenter. We This has been absent adjacent hay fail find thereto distinction between areas street but blocks, po- danger lawfully comprising to those bales and cement than 794 Murphy City

using the street area. 368A.17 The marshal. marshal “§ Waterloo, 255 123 N.W.2d 49 shall be ex officio Iowa chief of * * Moines, (1963); suppress riots, Nicholson v. of Des *. shall He dis- turbances, (1953); Bix peace Iowa N.W.2d breaches of the v. Sioux City, 184 Iowa 89, 164 N.W. ^[*] ^[*] ^[*] » obligation guard may 368A.18 Policemen. The officers and “§ require the to barricade or to close members force public point forbid travel at street or powers shall have the same as marshals danger. Nicholson v. obstruction suppress riots, to make arrests dis- Moines, 270, 281, of Des Iowa turbances, peace.” and breaches of the v. Mel (1953); Leonard 532; Co., Foster Iowa By motion dismiss defendant admitted Falls, 199 Iowa plaintiff’s Whitlatch v. allegation police department E. N.W. the danger persons using knew of Uni- 54.98, Corporations Municipal McQuillin, Avenue, versity caused the missile- *14 p. 1967). (3d rev. ed. throwing If riot individuals. there was a or disturbance progress, in which defend- specifications negligence Plaintiff’s ant assumed, concedes and the lower court du- properly raise a violation of above then statutory power defendant had a and jurisdiction. in this recognized ties long suppress to use due care to or control case law petition His under our established 368.7, 368A.17, 368A.18, Code, it. Sections 613A, 1971, is by chapter as modified 1971. Defendant had the same minimum to dismiss. to a motion invulnerable persons might warn to who unknow-

ingly go danger into zone city respect any would Statutory duty have with other dan- III. of defendant ger in respect to disturbances. the street. The numerous with decisions previous support, by cited in the division case should believe do not While we position. analogy, this We can see no dis- ground se- limited narrow and turn on dangerous tinction between a condition brothers, believe we do lected piled caused blocks or street failing city negligence if the street, being long blocks thrown into the so into read can be a riot control prevent or as defendant the risk knew occasioned ample au- there specifications, plaintiff’s unsuspecting persons lawfully using concomi- duty, or the find such thority thoroughfare where the disturbance was duty warn. tant progressing. by this invoked statutory powers Liability city employer for torts of duty or obli- support the police employees discharge their cited above plaintiffs gation to duties, prior official to the enactment less or even similar cases Iowa 613A, chapter largely denied on the was cities granted powers than forceful ground governmental immu- (function) and disturb- riots respect statute Moines, nity. City of Des Leckliter v. ances. (1930); Iowa N.W. Jones City, 185 Iowa 170 N.W. power Sioux grants cities 368.7(7) Section “ *** Boone, riots, (1919); Calwell v. Iowa prohibit to restrain (1879). It follows recov- N.W. disorderly disturbance, assem- noise, ** ery cases, today, in those if tried would be blies 613A.2, imposing allowed under munici- § Code, 1971, “govern- 368A, pal liability abrogating entitled “Gen- Chapter Municipal Offi- function” There is no mental distinction. eral Powers and Duties following say negligence by sections: officers police reason to cers” contains

7O5 disturbance, they great control of a failure to make no amount of sense. persons danger Obviously warn a distur- this is an area which the bance, any should be less sought actionable than in vain for some has reason- negligence any logical compromise, function. able and and has pile ended with a jackstraws.” —W. city recently held a or town’s Prosser, 131, p. The Law of Torts thereof, agents officers are (4th 1971) ed. wrongs town would therefore be liable discharge committed them We next retreated from defense of Strong duties. v. Town of concept, which had been almost univer Lansing, 179 N.W.2d 365 sally by legal condemned scholars and courts, many although governmen but held Clearly, logical plain- if it is contend immunity conceived, judicially tal raised issue of allegations tiff’s buried, legislatively Boyer must be cf: based on defendant’s failure to exercise Association, High Iowa School Athletic prohibiting controlling due care riot 256 Iowa 127 N.W.2d 606 disturbance, authority ample there is Murphy, Moore v. Iowa 119 N 613A, Iowa, chapter enactment after . W.2d impose duty. first meaningful legislative as- Leqislative chapter IV. intent sault came 613A. in 1965 with enactment of the Iowa Tort majority opinion A main thesis of the Act, Claims 61 G.A. ch. now *15 legislature, enacting chap- that the Iowa 25A, Code, permitted, 1971. It under re- 613A, impose ter never intended to munici- procedures, litigation strictive of claims for “ pal liability in cases such as the before one against the state us. negligent caused wrongful or act or employee omission of any of state statutes are enacted Coke commented acting scope while within of his office purpose righting wrong. some of employment, or under circumstances where historical backdrop What was the state, private person, if a would be lia- legislation interpreted? which this must be loss, ble damage, claimant for such states, adopted Iowa, along with other injury, 25A.2(5)] or death.” There is [§ immunity concept governmental tort of cautionary reservation found 25A.4: § law, by court deci- English common immunity “The of the suit state from and sions, long after continued to invoke provided is waived to the extent Bri- demise Britain. See its substantial chapter.” Proceedings of Act & tish Crown c. 44. 11 Geo. sweeping VI There followed in ab- rogation immunity governmental of as to of anachronistic na- realization Our subdivisions, defined cities. 62 to include was first mani- ture this feudal doctrine 613A, Code, chapter ch. G.A. now employed circum- by the devices fested relevant section is 613A.2: pro- vent it: function — prietary dichotomy; nuisance function Except as Liability imposed. “613A.2 doctrine; misfeasance-nonfeasance dis- provided every Chapter, otherwise in this necessarily constituting, tinction —each liability for its subject measure, play with a words some officers, employees, torts and those of its logic and modicum of substantive reason. agents scope acting within the duties, employment or can said whether “There is little that about exist, arising pro- except they out of a such distinctions that n artificial, prietary (emphasis supplied) and that they highly function.” “ * * * every Chicago as Ry. Tort is defined civil lation. & North Western Co. wrong wrongful Osage, (Iowa results in death or N.W.2d 788 person property Robinson, injury injury 1970); State v.

includes but is not restricted actions upon negligence, duty, based breach The inexorable conclu- and reasonable [§613A.l(3)j nuisance.” chapter sion to be 613A reached implied No of common-law reservation legislature would be intended to municipal immunity encountered away all sweep judicial contrivances comparable the reservation 613A negli- disallowing recovery municipal By immunity its ex- state 25A.4. only § gence, excepted save four situa- press imposed terms for tort majority, tions identified 613A.4. § “except chapter.” provided in this however, legislature asserts the must have exempt Only (613A.2) four enumerated recovery been familiar with fact had chapter. in the areas are to be found jurisdictions been disallowed in other exempted situations created None damage where was and no mob-inflicted applicable here, as conceded 613A.4 are § had been allowed in the absence inference, By by majority. negative how- damage it fol- riot statutes. Therefore supports ever, position for 613A.4 lows, contends, § majority did legislature exempts an act or of an officer omission not intend to include such actions within employee in the exer- where he is meaning wrong of tort or civil as those may, Affirmative words due care. cise found in chapter words are 613A. do, imply negative often what expressed. affirmed, if strongly as would assume reasonably One more Dubuque Township as in most District Iowa knew Iowa Dubuque, jurisdictions immunity legislation, negligence, is no before The intent is clear there concept grounded of an of- for acts and omissions the discredited “governmental abrogating negligent function” and who is employee ficer 613A.2, concept in intended execution of statute. *16 superior respondeat doctrine store the of must provisions chapter 613A As the of impose liability in all such cases. municipal disposition control must presented, reference tort case here pertinent statu principles more Other statutory to Iowa’s law by majority. also be made tory interpretation ignored are 4.2, construction, Code, 1971: in repeatedly legislative said that § We have language gathered is to be from the tent ‘‘4.2 Common-law construction. rule of Fulton, 179 Maguire v. statute itself. law, The rule that stat- common 508, Iowa (Iowa 1970); 510 N.W.2d be derogation are to utes thereof Hoep v. Mutual Insurance Co. Hardware construed, to strictly application no has 55, 57 ner, Iowa 108 N.W.2d 252 provisions pro- and all Its this Code. Estate, Iowa re Klug’s In (1961); ceedings liberally con- under shall be (1960). 1128, 1132, 104 N.W.2d objects its promote with a view to strued speculate as ruled we not We have would jus- parties obtaining and assist the legislative apart intent probable to tice.” legis used; wording we that view stat in the legislation to intent from what said construing must lative we look been said. sought might than have evil ute rather what object accomplished, be Ameri subserved, Corporation remedied, purpose Hill Electronics be be v. 313, 317 ca, 581, 587, 113 liberal con- Iowa N.W.2d place it a reasonable Marion, 251 Iowa purpose (1962); its Kane will struction which best effect legis- 1165, 104 defeat the than one rather which will

79? considering interpre- exception imposition to the of municipal important More 613A, liability. type apparent judicial legislation it is This tation of n situa- not carefully defined those violates legislature separation constitutional it im- municipal liability powers ignores but appropriate tions in which the rules of intended posed operate. long by Had it construction was not to followed nonliability where the to create court. Under these rules we should hold violence, easi- by legislature it could precisely meant were caused mob what it said exempted attempting municipal fifth area ly have abolish immuni- § added Sutherland, Statutory ty excepted In 2 save enumerated 613A.4. areas. J. 1943, Supp. (3d ed. Construction § vividly This case demonstrates the de- is stat- here relevant 1971) precise rule ceptive strength im- ed: munity Although doctrine. universally exceptions enumeration “And the by scholars, legal condemned it continues indicates operation of a statute from the live, supported power not per- its spe- not cases apply it should suade ability arouse unwar- cifically excepted.” judicial ranted consequences fears of the Superior overturning Court accept See also Bushnell it. not We do Maricopa County, remedy Ariz. offered legislation to the An problems Los judicially Williams v. P.2d created over so long Authority, 57 Metropolitan Why Transit geles time. should not a cor- This poration Cal.Rptr. (Cal.App.1967). be held liable the failure of its application of nothing more than act as reasonably prudent exclusio “expressio rule unius est men under the broader circumstances? To flinch alterius”, concept this court. long applied a wrong for such Company Iowa Steel language pleaded remedy North there is a is to re- 355, 357, Staley, ject very philosophy body of a of de- law, typifies approach: case veloping requirements attuned to complex society. of a and changing This erecting a bar justified “We prisoner should emulate the who legislature provide. did where the not so is lost without his irons and embraces their thing express mention of the one return. If immu- implies of the other. the exclusion nity facts, is to restored under these quoted expressed the often rule is then will find convenient ‘expressio exclu- unius phrase Latin est simply exemptions extend the itemized legis- have said: ‘The sio alterius.’ We 613A.4. This court should take no expressed by omission lative intent is *17 part in such retreat. ” cases) (citing well as inclusion.’ rule, For see applications similar of this reversed, The district court should be Flack, 529, 533, State v. 101 N. overruled, motion dismiss and the case Everding W.2d Board (1960); remanded. Education, 743, 750-751, 247 Iowa Pierce v. Bekins BECKER, J., joins in this dissent. Co., Storage Van 185 Iowa & 172 N.W. Majority’s opinion judicially grafts onto UHLENHOPP, J., joins Division II legislation (ch. 613A) as an additional of this dissent.