Wilson v. Nepstad

autho- John H. Alesch pension to WILSON, Individually Dorothy and as 18, 1966). spe- J. January rized on Estates of Bar Administratrix pensions granted cifically includes Gill, Appellant, bara Gill and Shawn board of by the Le Mars or increased its December directors made in we hold were meeting, which illegal transfer

contemplation of the Gregory and Donna J. L. NEPSTAD control. Individuals, Defendants, Nepstad, Tappan Damages Against M. H. Punitive Moines, City Des Iowa, Appellee. 11, 1979, affirmed opinion July damages as orderd punitive allowance of as to Iowa Mutual except

the trial court HARRIS, Individually Kay Janine DeWitt, John R. Company Insurance Gary Friend of Dean Next Mother and Wilkinson, Molyneaux, Ray Judge, D. M. J. Minor, Appellant, Simpson, a provision Under this and W. L. Rutenbeck. punitive damages the trial court’s award affirmed. How- against Tappan M. H. Gregory and Donna J. L. NEPSTAD

ever, opinion listed the re- elsewhere the Defendants, Individuals, Nepstad, defendants, stating as to each the maining damages by the punitive amount of allowed Moines, Des and the M. trial court or that none was assessed. Iowa, Appellee. inadvertently omit- Tappari’s H. name was purposes of clarifi- ted from this list. For OWENS, Individually Wayne Theodore puni- affirm the specifically cation we now Estates of and as Administrator Tappan M. H. damage tive award Christopher Louise Owens Sharion $10,000.00. the amount of Owens, Appellants, Wayne herein, original Except as modified our respects. The opinion is confirmed in all Alesch, by Alice

petition rehearing filed Donna J. Gregory L. NEPSTAD H. as administrator of the Estate of John Defendants, Individuals, Nepstad, deceased, Alesch, is denied. Moines, City of Des and the supplemental All Justices concur in this Iowa, Appellee. LARSON, J., opinion except who takes part. Mary Guyette,

Turrill Lou GUYETTE Individually, Mary Guyette Lou Guy Mother and Next Friend of Dawn ette, Minor, Appellants, Gregory L. NEPSTAD and Donna J. Individuals, Nepstad, Defendants, and the of Des Iowa, Appellee. LOMAX, Appellant,

Robert D.

Gregory L. and Donna J. NEPSTAD Individuals, Defendants,

Nepstad,

and the of Des

Iowa, Appellee.

Nos. 61537-61541.

Supreme of Iowa. Court

July issue

I. While the has not been raised we question have examined the whether to the trial court’s dismissals appealable judgments. final disposition part Although petition interlocutory, City v. is Shoemaker 206, (Iowa Muscatine, of N.W.2d 1979), of of disposition all causes action is final against one or more defendants and “separable by those are appealable if causes line of demarcation” from the some distinct against remaining defend pled causes the Mohr, H. Roehrick Thomas Mohr of & v. petition. City ants McGuire in the same Moines, Piazza, appel- James P. Des for and 592, Rapids, of 189 N.W.2d 596-97 Cedar lants. (Iowa 1971). Hopkins Hopkins A. of Hueb- Terrence & ner, appellee. Des for petitions In these the bases liabili

ty against depend are not city asserted ent with the bases of upon or intertwined REYNOLDSON, Justice. Chief Nepstads. liability asserted cases, These five consolidated in district Sales, Pruisner, v. Swets Motor Inc. court for submission of motions and in this 299, 1975); (Iowa Lunday purposes court for appeal, involve deaths 904, (Iowa Vogelmann, 213 N.W.2d injuries 27, resulting September from a 1973). 1975, apartment building fire in Des Moines. Gregory Plaintiffs sued L. and city We find the as to the are dismissals Nepstad, Donna J. owners of the building, appealable. jurisdiction have We reach Moines. Des appeals. merits of these Plaintiffs alleged statutes ordinances II. Thus we reach the issue whether un- codes, relating building per- occupancy city der be held liable for Iowa law can mits, required and fire regulations city inspections pursuant negligent conducted perform inspections, issue certificates city regarding state statutes and ordinances permits for apartment buildings, safety apartment buildings. fire compel compliance. petitions The asserted city pursue Plaintiffs negligent was do breach ways various executing these provisions warranty theory. city apparently as to The this build- ing. Plaintiffs alleged city inspected judgment willing to treat motion for negligent in a manner in February of 1975 the in the as pleadings same manner and issued an certificate “which motions to dismiss in four the other cases. impliedly premises warranted the to be safe See Iowa R. Civ.P. 222. purposes for human habitation.” ap these purposes A. For the ultimately alleged

Plaintiffs a result therefore, peals, plaintiffs’ allegations city’s negligent of either conduct or its petitions accepted breach of are true. warranty the victims Citizens were killed injured. The Washington Square Davenport, victims were alleged to be guests 1979). residents or building. (Iowa in the 277 883-84 These allegations light in the construed most city filed motions to in four dismiss plaintiffs, favorable to doubts re judgment cases and motion for on the their all favorable pleadings fifth, in the solved for benefit and contending it had Id.; accepted. care inferences Weber Madi toward the fire Trial victims. son, (Iowa 1977); court plaintiffs sustained these motions and 251 N.W.2d Rick timely appealed. We reverse v. Boegel, and remand. (La.App. 1977); 343 So.2d 1097

Accordingly, city we assume the had certain Hoffert v. Motel, Inc., Owatonna Inn Towne inspect apartment 293 Minn. duties (1972); 199 N.W.2d 158 Motyka City negligent building inspec- and was in its Amsterdam, 15 N.Y.2d 256 N.Y.S.2d tions, proximately caused deaths 204 N.E.2d 635 Georges v. Tu injuries to the victims. dor, Wash.App. (1976). 556 P.2d 564 B. Plaintiffs’ contention the com- In most of sovereign these cases the two-pronged. They mitted a tort alter- held not liable on one or both of two natively posit (1) a liability on breach of the grounds. concept The first is the there care, common-law of reasonable liability provide should be no for failure to (2) breach of various duties relat- general police protection. building safety and fire inspection. second is the “public duty” related doc- ground dispositive pur- second trine —the notion that if a is owed to poses appeal. of this public generally there is no prerequisite any negligence A ac an individual group. member of that Nei- duty obligation by tion is a or owed the ther properly factor can urged in this Incorporated actor to the victim. Jahnke v. case. 780, City of Des 191 N.W.2d 783 Moreover, the trend in this area is toward (Iowa Prosser, 1971); W. Handbook of the liability. “public duty” The doctrine has 30, 143, 53, (4th Law of Torts at at 324 support eight jurisdic lost in four of the 1971). ed. upon by city. tions relied Modlin has Duty can by be created statute if legislature’s survived the Florida recent legislature purposed pro or abrogation intended to sovereign immunity. See De persons tect a class of partment which the victim of Health & Rehabilitative Serv 528, (Fla. ices belongs against particular McDougall, a harm which the v. 395 532 So.2d App. 1978). support city victim has The finds in suffered. Koll v. Manatt’s Co., 265, Georges is undermined Transportation Halvorson v. 253 N.W.2d 270 Dahl, 673, 676, 1190, 89 Wash.2d 574 (Iowa 1977) Kemmish, P.2d (quoting Hansen v. (1978) 1192 (“Liability upon can be founded 1008, 201 (1926)); Iowa 208 N.W. 277 Crane a if code that code its terms Rapids City v. Railway, Cedar & Iowa 160 identify evidences a clear intent 838, (Iowa 1968), aff’d, 841 395 U.S. protect particular a and circumscribed class 164, 1706, (1969); 89 S.Ct. 23 L.Ed.2d 176 persons.”). Motyka turned on “failure to Church, Lattner v. Conception Immaculate supply protection,” adequate police or fire 120, 129, 639, 255 Iowa 121 N.W.2d 645 139, 598, 204 N.Y.2d N.Y.S.2d Prosser, (1963); supra, W. at 192-95. expressly N.E.2d at modify did not city The does not disavow its duties under York, holding City Runkel v. of New the statutes and ordinances but denies these 173, 177, 282 A.D. 123 N.Y.S.2d obligations duty created a of reasonable (1953), appeal on nom. Runkel remand sub applicable care. It contends the state and Homelsky, v. 286 A.D. 145 N.Y.S.2d municipal inspection laws designed (1955), aff’d, 857, 166 3 N.Y.2d N.Y.S.2d public generally and do not cre- (1957) (“Plaintiffs 145 N.E.2d 23 [in duty ate a of care to these plain- individual jured by collapse three-story multiple tiffs. dwelling] persons come within the class of relies on decisions from several protected by intended to these jurisdictions. other City Duran v. of Tuc provisions mandatory duty [imposing son, Ariz.App. 509 P.2d 1059 nuisance]; consequently, they may abate as Beach, Modlin City v. of Miami 201 So.2d 70 damages sue to recover caused defend (Fla. Counihan, 1967); Hannon v. 54 Ill. ants’ ”). breach of such .... App.3d 12 Ill.Dec. 369 N.E.2d 917 The severely effect of limited Hoffert (1977); Grogan Commonwealth, Buzzle, 577 in Lorshbough Township (Ky. 1979); Guarino, 96, 102 S.W.2d Dufrene v. (Minn.1977): members of or their decedents were particular a tiffs unit owes governmental [A] class; they were the intended bene- care when its officer duty a individual provid- services authority ficiaries agent, position knowledge have had victims of the fire ed and foreseeable act, or should has From facts left uncorrected. hazards safety that violates stan- of a condition them, injuries of must as we take regulation, by statute prescribed dards plaintiffs complain were the which serious harm presents a risk of and that the risks taken consequences of obvious When property. or his the individual management. logical by the hotel reasonably foreseea- injury such serious consequence having alarm ble, governmental unit has impossible escape made difficult reasonable care for individu- exercise discovered too late. a fire safety. al’s law after Cracraft The state of Minnesota Thus, if were considered the defendant Park, 279 plaintiffs of St. Louis private entity, its 1979), special (Minn. quoted concur- their decedents would be clear .... rence, unsettled. is at best however, state, argument raises an recognized jurisdictions have

Other status. Its special public based growing imposing trend toward theory, traditionally recognized, and one state, negligence in upon governmental units for entity that an such as the generally, Royal only In execution of duties. owes Erie, actionable demnity F.Supp. does not owe an Co. Although is a well-re- law); this (W.D.Pa. 1974) (Pennsylvania 1137 individual. doctrine, appli- find it we do not (Alaska spected 248 Jennings, v. 555 P.2d State cable here for two reasons. State, (Alaska 235 1976); Adams 555 P.2d v. A.D.2d N.W.2d 132 1976); Urban District Sexstone Milwaukee, 301 N.Y.S.2d 887 Council, Dutton v. 74 Wis.2d ^[1972] (1969); Coffey Rochester, Bognor Regis Q.B. 32 of the is a limited not one owed to First, it expressly fire the inspection common one, based and its the general statutes. law duty beneficiaries the public, nor mandates The . duty a undertaking inspect limited class. liability, only finding Of all the cases in the Gold advise on the conditions Sexstone, Halvorson, Runkel, Lorshbough, Rush, duty those undertook a the state negligence the issue of in Dutton reach hotel, the burning of injured by the statutory obligations. discharge the As public general. in to the out, points the few special concurrence a others are based on affirmative conduct: Second, “duty the we consider that duty negligence discharge in volun- all, reality is in duty to no-one” doctrine But none of these cases tarily undertaken. sovereign immunity, which is a form of advance the notion that statutes and ordi- Alaska, by matter dealt with statute similar Iowa Des nances to those of amplified by court-created and not duty only public Moines create a application doctrine. An generally. Typical is Alaska’s treatment of finding duty doctrine here would result the problem in the context of affirmative duty plaintiffs or their dece- no owed the conduct: state, because, they although dents

Is the law described common private and a were foreseeable victims owed or their plaintiffs above to the dece- duty, defendant would have owed dents, We think relationship” par- victims fire? “special between the inspection clearly purpose so. Why ties should establish- existed. fire; property life and from ment of become more difficult when purpose the Gold Rush Where there the state is the defendant? immunity, was to alleviate fire hazards is to be treated discover and is no state pub- endangering private litigant. To allow the users of the hotel. Plain- like equality pality doctrine to committed by employees lie disturb this torts its legisla- create immunity would where acting scope while within the their ture has not. duties. scope covers tortious Adams, (footnotes reasonably 555 P.2d at 241—42 omit- acts and omissions related ted). or business affairs. Breach of an actionable created statute is tor-

However, it is specific and novel lan- chapter Only tious conduct under 613A. statutes, clearly guage of Iowa indicat- employee liability intent exercises due care in impose circumstances, which under these admitted executing municipali duties is the Iowa distinguishes law from that found ty liability. exempt legislature city. the decisions relied on expressed could not have better more its consistently impose intention to meaningful analysis A must include an —in private same manner as in the sector —mu applicable of three statutes: examination nicipal negligence on tort based Except as provided otherwise statutory duty. breach of a chapter, subject to every municipality is liability for its torts and those its offi- has often said 613A chapter court cers, employees, agents acting within Sprung “created a new of action.” duties, scope of their employment (Iowa Rasmussen, arising whether out governmental 1970); County, see Bennett v. Ida proprietary function. (Iowa 1972); Harryman 235-36 A tort shall be within the deemed to be 1977). Hayles, (Iowa scope employment if the or duties act accept chapter When we 613A with reasonably or omission to the busi- relates creation,” unique as a language “statute of municipality ness or affairs of Sprung, N.W.2d at then decisions officer, employee, agent acted in jurisdictions little from other should have good faith and in a manner a reasonable impact the determination we to- reach person would have believed be in and Duran, Ariz.App. day. Compare with opposed to the best interests of the (“Abrogation at 1061 509 P.2d municipality. governmental . . . immunity doctrine of (emphasis 613A.2 supplied). § any liability new a mu- does not create for wrong “Tort” means which every civil nicipality.”). in wrongful injury results death or to or

person injury property injury or city’s examined We have with care the or personal property rights and includes attempt in an authorities. unsuccessful upon but is restricted to actions based to the statutory language find similar nuisance; omission; negligence; error or (Florida), statutes. In above Iowa Modlin of duty, statutory breach whether or oth- Grogan (Kentucky), (Louisi- and Dufrene impairment any er or denial or ana), liability are no there indications that provision, under constitutional imposed statu- sought to be under or statute rule of law. tory or definition of It formula tort. 613A.1(3) (emphasis supplied). Section § Kentucky clear Florida and munici- that in 613A.4(3), exempts municipality from lia- pal immunity was struck down tort bility for Loui- legislatures. courts In and not [ n ]ny claim upon based an act or omission simply provision constitutional siana a 1974 exercising officer employee, of an or due state, agen- provides: “Neither the a state care, statute, in the ordi- execution of a be im- cy, shall political nor a subdivision nance, resolution, officially adopted or or liability mune suit and in contract from rule, regulation or governing body. person property.” for La. injury supplied.) (Emphasis Const, (Arizona) and art. 10. Duran § specific (Illinois) part Hannon turned on together, Read the above Iowa stat impose immunity plainly liability upon granting utes munici and statutes ordinances (“whether 613A.1(3) statutory or other inspect failure to negligent § for un- duty”), of the second addition Ariz.App. 509 P.2d at at property, paragraph in section 613A.2 2-105, 1063; 2-207, numbered ch. §§ Ill.Rev.Stat. by em- liability to tortious conduct extend signal that absence clear or affairs relating “the business ployees liability imposed. would enactments Legislative municipality.” reaction may statutory references While some cases, apparent one to our indemnification cases, remaining three Hoffert found amendment, re- did not for the 1974 basis York), (New (Minnesota), Motyka and Geor- 1(3) change in 613A. defi- quire a the section ges (Washington), those statutes neither Sneller, tort. Neither Vermeer nition of impose liability employees’ for tortious con- 1971), (Iowa Flynn nor 190 N.W.2d or affairs of relating duct “to business County Hospital, Memorial Lucas nor tort municipality” define in terms 1973), (Iowa any tort involved statutory duty. of breach See Minn.Stat. duty, but breach of based on .02; N.Y.Jud.Law, 466.01, Court of §§ change in section Jahnke did. 8; Wash.Rev.Code 4.96.- Claims Act § sections, ap- 613A.1(3), perhaps other 010-020. pears legislative response Jahnke. be a Notwithstanding the trend case clear changes in recognized these The court city legislation, law unmistakable Milwaukee, Paul Symmonds Chicago, St. dichotomy argues is the “public duty” Railroad, 242 N.W.2d & Pacific Iowa, special proposition law in con- (Iowa 1976), in which trial court’s dismissal accept. rely heavily currence Both seems of the railroad’s counterclaim Scott Incorporated of Des Jahnke County was We also held that reversed. 785-86, despite sev- jurisdiction secondary the county’s over important eral between that sit- differences stop authority place roads present uation one. signs dangerous railroad particularly First, and was limited Jahnke addressed imposed obligation affirmative crossings to an esoteric area liabil- of law— required to act when due care it: ity injuries for mob violence. caused reviewing rul- court’s dismissal trial Corporations Municipal C.J.S. was, crossing as al- ing we assume this said: (1950). In Jahnke we 773a § dangerous crossing. particularly leged, a We therefore limit our discussion to County knew We assume a fact Scott issue must stand petition or should have known constituted liability negligent fall — signaling hazard. No device was railroad personal plaintiff failure from circum- place. To under these hold injuries mob by reason of violence stances, law, county as a matter riotous conduct. fail- should be immune post stop sign to in a situation problem 191 N.W.2d at 782. The was re- “ clearly harm or supply entailing in foreseeable solved the context of ‘failure ” persons its sec- damage traveling on general protection,’ 191 police and fire ondary logic, road sound 785, 786, would just N.W.2d as were several of at reason, enlightened public policy. and by city. the other on Of decisions relied course, us pleadings in the cases before omitted). (citation 242 at 265 N.W.2d supply allege “general do not a failure to of a Recognition liability of breach allege police protection.” or fire Plaintiffs partic- duty designed carrying inspec- negligence in out routine general large segment of the ular —albeit — by imposed tion duties law. Hayles, public Harryman v. continued in Moreover, following chapter Jahnke 613A ana- 257 at 631. There this court N.W.2d Session, 1974 extensively. liability county, amended its potential of a lyzed the G.A., Among 65th 1263. the amend- of an arising ch. out employees, officers ments re- alleged duty was the inclusion of breach of statu- breach of “tort,” tory gard of and road maintenance: duty highway in the definition

671 sions wrong, authority We believe the court was and omissions trial too, control particular activity over a in its the individual de- has been conclusion delegated by to it statute and of plaintiffs. breach duty owed no The fendants that duty involves foreseeable risk theory depends which are cases that injury to an identifiable class to which the governmental based on immunity. also belongs. duty victim The in those cases ran example, Genkinger For v. Jefferson n “to all those roads,” rightfully using 118, 120, County, Iowa 93 N.W.2d [250 Harryman, at 257 N.W.2d and “to the (1958)], 132 the court held the statu- traveling public,” Symmonds, 242 N.W.2d tory duty engineer county main- duty designed at 265. A statutory pro- roads “owing tain in a safe condition was tect than something larger an identifiable general public and not to cer- persons exception, class of is not the decedent, individual except tain or this as rule. part general such individual is a of the consistent situation, conclusion is with the rule said, public.” In this the court applied private general sector: “A immunity County “the extends to statutory duty ordinarily for the benefit employee.” [Emphasis added in Har- persons of all likely who are to be exposed ryman.] to injury from its nonobservance.” Hansen governmen- We hold the abrogation Kemmish, 201 Iowa 208 N.W. immunity same principles tal means the liability apply employ- to officers It is also with authority consistent municipalities ees other tort City, Case v. defendants, Sioux Iowa expressly except as modified (1955), Restatement limited Chapter (Second) (1965), of Torts 288 both cited § regard 613A. In that we take the special concurrence. 613A.4(3) simply to mean that there is § of an the acts officer or fact, In clearly distinguishable Case is employee negligence. unless there is . because it dealt with the landowner’s liabili- ty, not The municipality’s. court did not hold municipality was not liable for injuries snow caused accumulation case, Supervisors the Board hold that sidewalks. Other cases some county engineer clearly had a be, a situations it would result proper maintain the county roads con- Harryman Symmonds. consistent with 309.67, 319.1, 319.7, Code, dition. See, g., City, e. Franks v. Sioux 229 Iowa right- 1971. This to all those runs (1941). N.W. basis fully using the roads. Cf. Conrad v. decisions such as is that the landowner Case Supervisors, Board of given over no control sidewalks. (1972). A breach can Rockwell City, See Rockafellow v. either by negligent occur commission or does omission. Whether the was breach- contend it had no ed, so, and if proximate whether it was a jurisdiction state statutes to enforce injuries, cause matters to be designed protect apart- own ordinances determined at trial. building ment tenants. 257 N.W.2d at 638. only recognizes Restatement section There is no need in this case to decide purpose need to show the of the statuto- whether Jahnke survived intact the 1974 ry duty of is to an identifiable class benefit amendments, Symmonds, Harryman. and persons. securing Only “to individu- light however, of developments, these rights privileges als or enjoyment of cannot be said that is the Jahnke rule and only of they are entitled as members Symmonds Harryman exceptions. and public” purpose is the exclusive Harryman Symmonds make it clear a 288(b) section statutory duty preclude does municipality is liability. liable for tortious commis- ordinances, city contours of the

Therefore, The we must examine are simi- petition, disclosed amended statutes and ordinances duties created apartment tenants. larly designed in this case. involved See, (requiring g., e. No. 7156 Ordinance specifications negligence From of stairways, hallways, other means of petitions we infer and' plaintiffs’ amended egress adequately lighted and free of injuries these deaths and assume as facts encumbrances; forbidding encumbrances apartment multistory a build- occurred in escapes upon fire which would obstruct Among defects there were inad- ing. other building; re- egress persons of from the equate egress; means of obstructions and inspector his the fire marshall or quiring escapes, fire stairs and encumbrances on the removal or correction of ob- order materials stored passageways; dangerous escapes or other struction to or on fire on, under, exit stair- or at the bottom of egress). means of of ways, hallways exit and other means impose These on ordinances statutes inadequate lighting of egress. There was authority employees the and its hallways and other means of stairways, require of these defects. correction detecting fire egress; absence of suitable purpose of this can- Symmonds. extinguishing appliances; and devices and distinguished Harry- those in from dwelling no immediate access from each Symmonds. greater is no man and There unit located on the second floor and above Lee and Counties and nexus between Scott egress. to two or more means of All these persons using their roads than the nexus specifically pled city defects violated ordi- its citizens between Des Moines and resid- unspecified of nances. Violation several ing multiple dwellings. The latter class alleged. state statutes was also See Chs. probably smaller. 413, 103A, The Code. special advocates an concurrence obviously These ordinances statutes dutyA and ironic result: relat- anomalous designed protection spe were for the of public open to and utilized ing to roads — cial, persons group identifiable —lawful pro- because it all citizens —is actionable occupants multiple dwellings —from persons, an identifiable class of but tects harm, injury particular or death fire. relating private dwellings open — Adams, 241; Lorshbough, 555 P.2d at by tenants and only only to and utilized 102; Campbell at of Belle not actionable because it benefits guests —is vue, 85 Wash.2d 530 P.2d prob- general public. points up Halvorson, Wash.2d application lem of mere result-oriented They P.2d do not fall within the “duty” duty” “no labels. This court has 288(b). principle Restatement section dangers applying such con- discussed the securing purpose Their exclusive examining lieu whether con- clusions in rights privileges to which all members of light apparent is reasonable in duct public specificity entitled. particular plaintiff risk and whether escapes relating statutes fire exits Wittrup protection. Chicago entitled to location, classification, together with the Railway, Northwestern & construction, arrangement, signing, and 823-24 thereof, 103.3-.9, lighting coupled with §§ inspectors special permit directions to Nor will our decisions require “carefully interpreted inspect” for violations and concurrence to be owners, imposition noncomplying express legislative serve notice on 103.13-17, pro negligent inspection. In Bauman purpose evidences a (Iowa 1969), occupants dwellings Waverly, tect multi-family (the only posited “permissive specified per other structures was to establish and endangered by faulty authority chapter sons nonexistent exits), public comfort station where escapes not members of the maintain the Referring duty, plaintiff injured.” generally. said, delegation power city “It cause the no duty occupants we there is the owed to (empha- that.” apartment establishes Id. building question. original). question sis is no in the There other Plaintiffs’ asserted basis of lia legislature delegated but that the has to the bility They deserves further comment. al inspect city’s inspectors power prem- leged only that not did the fail compliance with statutory ises and insure perform its to enforce these statutes escapes provisions relating to fire and ex- ordinances, following and but that a Febru See, (“The g., e. building ists. 103.13 §§ 7, ary 1975, inspection apartment inspector performing other officer like building February on agents its . inspect duties . . shall fire es- premises issued a complied certificate capes jurisdic- respective within their Safety Housing with the “Health Code tions.”); (“Powers 103.14 and duties. Such Des Moines.” often inspection officers shall as as neces- sary inspect . carefully . . and exam- Harryman we “abrogation gov- held escapes, inspection ine such such fire immunity ernmental means princi- the same all paths shall include or routes between ples apply officers and em- passage interior to a lower floor and ployees municipalities as to other opening means of access to the said defendants, except tort expressly modi- escapes, lights, fire signs, and the exits and provisions fied or Chapter limited escape buildings required means of of all 613A.” 257 N.W.2d at 638. In the absence escapes be with equipped statute, immunizing of an we have held power and shall have the make all rea- squarely may that an insurer liable . requirements sonable . . with re- negligent gratuitously inspection under- spect escapes, fire, to fire protection from taken. v. Montgomery Fabricius Elevator escape buildings.”); and means of Co., (1963).1 254 Iowa N.W.2d (“duty” of inspector 103.15 to serve written applicable Fabricius rule is here be- statutory violations); notice on owner of plaintiffs cause stronger make an even notice, (following 103.17 a noncomplying inspect case: city’s rectify fine; subjected owner is each to a week of imposed by hazards is statutes ordi- notice, neglect comply with “to order nances gratuitously. and is not undertaken requirement shall a separate constitute Symmonds, 242 N.W.2d at 265-66. offense”). Defendant insurer Fabricius raised the “carefully Such direction to in policy argument same here asserted spect” imposition “duty" notify city against grounds pled by plain- both compel compliance owners of violation and inspection tiffs —a threat withdraw from with stronger these are a founda if negligence liability. should result tion posit legal duty on which to than we There we said: prior have found sufficient in our decisions. strongly urges Defendant what it calls Bauman; Florey Burlington, See practical public policy. effects sound 316, 323-24, 247 Iowa suggests inspection by It curtailment of (1955). is, Plaintiff’s answer insurers .... stage record nothing discloses negligent is better than which indicates the statutes and ordinances agree. one. inclined to We are do not Every create actionable duties. indi- cation, fact, 254 Iowa at 366. Mu- N.W.2d at contrary. is to the We hold nicipalities going motivated determined, cannot be as a matter of law dismiss, plaintiffs’ meaningful inspections toward while insu- peti- motions tions failed state a of action employees’ negligence cause be- lated from their Although successfully sought insurers later the common-law of action relief, Kaplan, private see Bowen Restatement tortfeasors. also (Iowa 1976), (Second) (1965). Fabricius stands of Torts 324A law in the Iowa a statute absence of abolish- McCORMICK, (concurring spe- In the Justice statutory duties. respect to these withdrawal, be might the void event cially). agencies whose certificates by private

filled municipal in- agree I am that unable persons risking their could relied on be invariably and ordinances spection statutes multiple dwelling property lives and to those who live in the create apartments. premises inspected. argu policy unimpressed We also plaintiffs do not forth In these set cases (but here) not urged ments in some cases re- provisions of statute and ordinance municipality exempt that failure upon imposing duty. lied have negligence from its would a disastrous Dufrene, cited the ordinances at statutes are not impact. See 343 So.2d financial municipal place, Consequent- In the us. upon 1099-100. first relied are not before ity may recover over entitled to be their ly, resolving pleading doubts in Runkel offending property owner. See favor, stage we are unable at this 1101-02, 145 v. Homelsky, 286 at A.D. plain- appears certainty say cases it Second, potential fis N.Y.S.2d at 730. have to state claims tiffs failed is compared cal threat here minimal granted any sup- under any may relief be exposure which refusal arises our facts which could portive state Harryman Symmonds to immunize Madison, Weber v. proved. See municipality negligence from its in ful I con- On that basis filling relating to duties in the cur result. streets and roads. That these are cases However, our anything I do not believe impression first indication Iowa some 613A re- chapter cases in Code either only will infrequently. these situations arise holding quires justifies a carte blanche Third, that disas it is not all clear fiscal ordi- that statutes and likely ter is inevitable even under individuals. Rath- nances create State, Hicks these circumstances. See er, I and ordinances believe such statutes N.M. 544 P.2d ordinarily by government an Department reflect effort Mayle Pennsylvania 384, 394-96, require private property 479 Pa. 388 A.2d Highways, owners (1978). 714-15 responsibilities. Grogan meet their Commonwealth, 5 (Ky.1979) 577 S.W.2d however, the fact important, Most (“But designed for in the enactment of laws legislation that consequences financial governmental public safety unit does primary responsibility must be the task; perform it at- attempt legislature weigh heavily in the and cannot it, tempts compel only to others do court’s of interpreting function enforcing pur- one of the means language. We have no reason to believe pose may employ- direct its officers and legislature weigh factors our did not those function.”). perform inspection ees to enacting amending chapter 613A. large doing, over fis laws serve the Allowing understandable concerns so statutory interpreta cal particular group effects control class. rather than legis destroy carefully tion will constructed See, 103A.2, g., (“[I]t e. The Code § lation. policy of the state of Iowa insure health, safety, and welfare its citizens Trial these ruling court’s is reversed <*nd through promulgation enforcement proceedings cases are remanded for further (“The building code.”); 413.9 of a state § consistent herewith. chapter to be shall held of this REVERSED AND REMANDED. adopted for the requirements the minimum health, welfare, safety protection of McCORMICK, except All Justices concur usually community.”). They do McGIVERIN, JJ., con- LeGRAND and who re- municipality itself ALLBEE, purport to make specially, J., cur takes who premises. part. sponsible defects in the Hayles, major the view of vast 257 N.W.2d 631 has been the ity recognized of courts have confronted the Jahnke the court an that action- able general depends issue. The rule is stated in Cra tort the existence of a Park, craft 279 City duty running of St. Louis from the alleged wrongdoer (Minn.1979): 806 to his victim. It held Code chapter that 613A did not liability upon create We . . municipality hold . that a public claims a where runs to the does not owe a individual of large plaintiff. but not individual by care merely the fact that enacts a contrast, By Symmonds Harryman general requiring ordinance fire code in- particular the that court held statutes in- spections the fact that it under- volved in cases did those create duties to inspection takes an for code viola- individuals, travelers on the streets. Those tions. A of only care arises when cases principle come within the Halvorson there are additional indicia that the mu- upon finding and are chap- not based a nicipality responsibili- has undertaken the ter new 613A created torts. itself, ty only protecting of not but also the responsibility protect- undertaken of general principle to which we ad- particular a class the from risks asso- today expressed hered before Restate- ciated with fire code violations. (Second) ment of 288(b) Torts section (1965), noted, exception As an as follows: exists the by its statute terms shows an not adopt court will the standard identify particular intent of of a conduct man the re- reasonable Dahl, persons. class of See Halvorson 89 quirements of legislative enactment or (1978) (statute Wash.2d 574 P.2d 1190 regulation pur- administrative whose identifying purpose pose as an enactment for exclusively to be found the occupants building benefit of of a plaintiffs well as public). the Whether can (b) enjoy- to secure to individuals bring exception under themselves noted ment rights privileges they of to which in Cracraft and Halvorson cannot be deter- only are pub- entitled as members of the knowing mined without lic; . they relying statutes and ordinances are provides: Comment c this section on. regu- Other enactments Other courts have held a to individu- purpose only lations are intended for may als from arise affirmative conduct. securing enjoyment to individuals the Erie, Royal Indemnity Co. v. 372 rights privileges they to which F.Supp. (W.D.Pa.1974); 1137 State v. Jen- public, entitled rather as members 1976); nings, (Alaska P.2d Adams v. purpose protecting any than for the State, (Alaska 1976); P.2d Restate- individual harm. statute from Thus (Second) (1965). ment of Torts 324A Like § may only public intended secure our own Montgomery case Fabricius v. passage pub- on the unobstructed Co., Elevator Iowa lic highway, or freedom excessive from (1963), those cases involve common-law noise or immoral conduct in communi- liability. rather than Whether circumstances, ty. Under where an some plaintiffs prove can basis common-law been with in individual has interfered his recovery depends upon in these cases their right, public exercise of and as a such proof. harm, special result distinct has suffered applied general

This court rule in rest of the that suffered Incorporated may Jahnke v. Des he to main- community, be entitled (Iowa 1971), See, 191 N.W.2d 780 and did tain a tort action for the violation. nuisances, depart Symmonds from it in Chicago, as to 821B 821C. Milwaukee, case, however, Railroad, ordinary Paul & Pacific In the harm suf- St. (Iowa 1976), is not Harryman N.W.2d 262 fered an individual within such exemption sec- Finally, provision, and stat- purpose 613A.1(3) or omissions while acts tion lay taken regulation will ute or hardly an affirmative exercising due care respect of conduct down a standard the munici- provision imposing liability on harm. omissions, re- acts or pality for other fol- principle recognizes comment duty running gardless of the existence exception followed lowed in Jahnke to the claimant. Harryman. Symmonds to did chapter 613A The 1974 amendment not been confined to limitation has previously which did not not create duties private to duties. government opposed Instead, in the changes defini exist. 288(c) section applied We have Restatement regarding indem provisions tort tion of statutory are breaches provides which that legislative be re appear to a nification statutory purpose when the not actionable in Vermeer sponse to this decisions court’s upon impose the actor the exclusively is “to Sneller, (Iowa 1971), and 190 N.W.2d 389 of which the state or performance a service County Hospital, Memorial Flynn v. Lucas give any undertakes to of it subdivision (Iowa 1973). The legisla 203 N.W.2d 613 we have held principle this public.” Under and notice ture redefined tort require which that or ordinances statutes chapter applica desire make the from a to repair to abutting property owner de- situations, arising ble to whether from, in, the public or snow fects remove law, the munici or where statute common govern- are for the benefit of sidewalk indemnify. Rob had a See pality not for the benefit travel- ment and - - Timmins, (Iowa erts v. N.W.2d foreseeability of Despite public. 638; 1979); Harryman, 257 is injury risk to travelers when of Session, G.A., ch. 1263. The amend 65th breached, is liable owner not lot expand afford purports protection ment injured City of person. Case v. Sioux See employees, municipal ed officers not City, 246 Iowa municipal liability breach stat for create Restatement, 6 at 32. Illustration inspection duties. utory chapter Nothing purports in Code 613A supported by the fact This conclusion is statutory duty by every make breach proposed by the House the amendment was officer, agent employee municipal complete ex- Committee Education. of “tort” section tort. The definition planation bill the com- attached nothing 613A.1(3)contains unusual. It does is as mittee follows: statutory duty are not all breaches of say within provides This bill that “officer” gives torts. Rather it tradi- actionable chapter 613A includes members of the tort which “includes but definition of tional municipality. governing body of upon negli- is not restricted to actions based Presently question there is some whether omission; nuisance; gence; breach error school members persons such as board or other duty, whether under the municipality “officers” of a impairment under denial or claims act. tort statute, provision, or rule constitutional expanded to of tort definition illogical say law.” It is because may presently acts be include which may tort action based breaches of expanded to cover reasona- covered and is statutory duty all breaches of best of the mu- ble acts interests torts. are actionable might nicipality which be outside duty. scope employment Similarly, municipality officers, body municipality is employees governing torts of its authority purchase granted agents during employ- specifically course their general out of the fund insurance presup- provided ment in section 6Í3A.2 may presently possible. poses tort. the commission an actionable expand It does not conduct which deemed The statute of is extended limitations against indi- apply tortious. and made suits employees, vidual agents officers and act is made exclusive the mu-

nicipality where the tort is within the

coverage chapter 613A. H.F. 64th We previous- G.A. have

ly given weight explanations to such

ascertaining legislative intent. See Sandquist,

Altoona v. may

Whatever one believe of the merit of “growing imposing trend” toward liabil-

ity upon government for breach of statuto- duties,

ry inspection the creation of statuto-

ry liability judi- rather than prerogative.

cial legislature It is for the municipalities

decide whether can be trust- officers,

ed to see that their employees and perform

agents their statutory duties with- compulsion

out financial they not. do We have no holding municipali- basis injuries

ties will be liable for all foreseeable

resulting premises from defects in

are uncorrected because of breach of statu-

tory inspection duties. building

I would hold that codes and in-

spection statutes ordinances do not cre-

ate a they to individuals unless do so express terms or clear implication. McGIVERIN, JJ., join

LeGRAND and special concurrence. FORT OF EDUCATION OF

BOARD SCHOOL COMMUNITY

MADISON Redmond, Ap Max E. DISTRICT

pellees, YOUEL, Appellant.

James

No. 61234. Iowa.

Supreme Court

Aug. 1979. Oct.

Rehearing Denied

Case Details

Case Name: Wilson v. Nepstad

Court Name: Supreme Court of Iowa

Date Published: Jul 25, 1979

Citation: 282 N.W.2d 664

Docket Number: 61537-61541

Court Abbreviation: Iowa