ESTATE OF MERCEDES GOTTSCHALK by Coexecutors RICHARD GOTTSCHALK and REBECCA RASSLER, Appellants,
POMEROY DEVELOPMENT, INC. d/b/a POMEROY CARE CENTER, Defendant, STATE OF IOWA, Appellee. POMEROY DEVELOPMENT, INC. d/b/a POMEROY CARE CENTER, Third-Party Plaintiff-Appellant,
STATE OF IOWA, Third-Party Defendant-Appellee.
review from the Iowa Court of Appeals.
from the Iowa District Court for Calhoun County, Thomas Bice,
estate and a care center request further review of a court of
appeals decision finding the State did not owe either of them
a duty of care. DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
J. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for
J. Miller, Attorney General, and Joanne Moeller, Assistant
Attorney General, for appellee.
H. Luginbill and Michael J. Streit of Ahlers & Cooney,
P.C., Des Moines, for defendant Pomeroy Development.
person whom the courts released from the State's civil
commitment unit for sexual offenders (CCUSO) and then
recommitted to a care center attacked the estate's
decedent at the care center. The estate filed a petition
against the care center and the State claiming negligence.
The care center brought a third-party claim against the State
for indemnity. The State filed a motion for summary judgment
arguing it owed no duty of care to the estate's decedent
or the care center. The district court agreed and entered
judgment for the State. The estate and the care center
appealed. We transferred the case to the court of appeals.
The court of appeals affirmed the district court judgment. We
granted further review. On appeal, we find on the issues
preserved that the State did not owe a duty of care to either
the estate's decedent or the care center. Accordingly, we
affirm the decision of the court of appeals and the judgment
of the district court.
Background Facts and Proceedings.
Gottschalk's family admitted her to the Pomeroy Care
Center in Pomeroy on September 5, 2009. Thereafter, on
December 8, 2010, the court civilly committed William Cubbage
to the Pomeroy Care Center. Cubbage's previous criminal
and medical history is relevant to this appeal.
State previously convicted Cubbage of "four sexually
violent offenses . . .: assault with intent to commit sexual
abuse (in 2000), indecent contact with a child (1997 and
1991), and lascivious acts with a child (1987)." In
re Det. of Cubbage, 671 N.W.2d 442, 443 (Iowa 2003). A
doctor diagnosed him with pedophilia and a personality
disorder not otherwise specified with antisocial and
narcissistic features. Id. The doctor believed those
conditions were "mental abnormalities" that
"made it seriously difficult for Cubbage to control his
sexually dangerous behavior." Id. On May 21,
2002, Cubbage was adjudicated a sexually violent predator
pursuant to Iowa Code chapter 299A, and the court committed
him to the custody of the director of the Iowa Department of
Human Services for placement at CCUSO until his "mental
abnormality has so changed that he is safe to be placed in
the transitional release program or discharged."
August 2006, while still in custody at CCUSO, a doctor
diagnosed Cubbage with dementia of the Alzheimer's type,
declining mental functioning, and several physical and mental
ailments. A ninety-day patient assessment at CCUSO in May
2010, indicated that the staff agreed the "best avenue
for Mr. Cubbage would be to place him in secure care for the
rest of his life . . . pending DHS Directors approval."
July, Dr. Michael Ryan, a psychologist at CCUSO, prepared an
annual report summarizing Cubbage's progress, and he made
recommendations regarding Cubbage's possible release.
Based on his evaluation, Dr. Ryan determined Cubbage did not
meet the criteria for transitional release, but that he
"does not currently meet the definition of a sexually
violent predator as described in 229A."
November 16, a hearing was held in Cherokee County pursuant
to Iowa Code section 229.13 (2011). The district court found
Cubbage seriously mentally impaired and, due to his dementia
and executive dysfunction, he was a danger to himself and
others. Thus, the district court ordered Cubbage placed in
the Pomeroy Care Center for appropriate treatment under the
care of Dr. Ted George of Pocahontas, Iowa.
on November 24, a state public defender acting on behalf of
Cubbage, filed a motion pursuant to Iowa Code section 229A.10');">229A.10
requesting the court discharge Cubbage from civil commitment.
The motion provided that the director of human services, the
Iowa attorney general's office, and the Iowa public
defender's office mutually agreed Cubbage is "unable
to obtain further gains from his civil commitment at
CCUSO" and is "seriously mentally impaired and in
need of full-time custody and care." That same day, the
district court in Des Moines County entered its order
discharging Cubbage from commitment under section 229A.10');">229A.10 and
committing him to the Pomeroy Care Center pursuant to Iowa
Code chapter 229 and the Cherokee County court's November
Cubbage began residing at the Pomeroy Care Center, the
administrator and director of nursing at the care center met
with CCUSO staff members to discuss Cubbage's history as
a sex offender as well as his diagnosis of pedophilia and
dementia. The CCUSO staff told the care center's
administrator that it was not likely Cubbage would be a risk.
The administrator was not aware the CCUSO doctors had
previously opined that Cubbage was a danger to others at the
time he was committed to the care center. The
administrator's understanding was that Cubbage was
"being transferred because his physical condition had
advanced to the point where he could no longer participate in
active treatment." The director of nursing at the care
center understood that Cubbage was a "child predator,
" and CCUSO staff told her that he would be "no
risk at all" to "older folks." The parties
discussed his access to children and the care center's
ability to monitor him in the presence of children.
August 21, 2011, an eight-year-old child visiting the care
center witnessed Cubbage sexually assaulting Gottschalk. On
November 18, the State transferred Cubbage from the care
center to the Newton Correctional Facility.
sued the care center for providing her care in a reckless and
negligent manner. After Gottschalk's death, her estate
substituted itself as the plaintiff. The estate also sued the
State for negligence. Specifically, the estate alleged the
State was negligent because (1) it had a duty to
"prepare and approve a safety plan to protect the
residents" of the care center after Cubbage was placed
there and (2) it had a duty to "inspect and determine
whether or not appropriate safety precautions were being
followed by the Pomeroy Care Center." The estate also
alleged the State decreased nursing home oversight thereby
"intentionally causing an unacceptable risk of injury to
Pomeroy Care Center brought a cross-claim alleging negligence
on the part of the State for contribution and indemnity. The
care center contended the State was negligent because (1) it
failed to "properly supervise and monitor the
co-resident, Cubbage, pursuant to Court Order and Iowa code
chapter 229;" (2) it represented to "Defendant
prior to his admission that the co-resident, Cubbage, was no
longer a risk or a threat to society;" and (3) it
represented to "Defendant prior to his admission that
the co-resident, Cubbage, was no longer a risk or threat to
State moved for summary judgment on the estate's and the
care center's causes of action. The State argued that
once it discharged Cubbage from CCUSO, it owed no duty of
care to supervise and monitor Cubbage, to create or supervise
any safety plan related to Cubbage, or to inspect the Pomeroy
Care Center and follow-up with regard to safety precautions.
The State also argued Iowa Code section 669.14(4) prohibits
the care center from suing the State based on the State's
alleged misrepresentations concerning Cubbage's risk to
other residents in the care center.
resistance to the State's motion for summary judgment,
the estate argued the State "did not inspect the Pomeroy
nursing home to determine whether safety protocols were in
place, " and the State had a "duty of care . . . to
warn the residents and assure that safety protocols were in
place to protect the residents from harm and that a failure
to do so would constitute negligence."
Pomeroy Care Center resisted the State's motion by
arguing the State negligently discharged Cubbage, the State
acted negligently in failing to supervise and monitor
Cubbage, and issues of material fact precluded summary
judgment. The care center also requested an extension of time
to respond to the State's summary judgment motion pending
a ruling on the estate's motion to compel production of
documents filed June 19, 2014, and the estate's motion to
inspect court records filed June 23.
district court granted the State's motion, concluding
that because Cubbage was unconditionally discharged from
CCUSO, the State had no statutory or common law duty to
supervise, monitor, or approve a safety plan, and that
"[w]ithout the existence of a duty, any claim for
negligence [by the Estate or the Pomeroy Care Center] must
fail." Further, the court held the doctrine of sovereign
immunity prevented any claim of misrepresentation against the
State pursuant to Iowa Code section 669.14(4). Finally,
because the court's ruling dismissed all claims against
the State, it concluded the estate's motion to compel
discovery was moot.
estate and Pomeroy appealed. We transferred the case to the court of
appeals, which affirmed the district court ruling. We granted
the estate's and Pomeroy Care Center's applications
for further review.
Scope of Review.
review a district court ruling on summary judgment for
correction of errors at law. Sanon v. City of Pella,
865 N.W.2d 506, 510 (Iowa 2015). Summary judgment is
appropriate when the moving party demonstrates "there
are 'no disputed issues of material fact and the moving
party is entitled to judgment as a matter of law.' "
Id. (quoting Ne. Cmty. Sch. Dist. v. Easton
Valley Cmty. Sch. Dist., 857 N.W.2d 488, 491- 92 (Iowa
2014)). "A genuine issue of fact exists if reasonable
minds can differ on how an issue should be resolved. When a
fact's determination might affect the outcome of the
suit, it is material." Walker v. State, 801
N.W.2d 548, 554 (Iowa 2011) (citation omitted).
examine the record in the light most favorable to the party
opposing the motion for summary judgment" when
determining if the moving party met its burden. Minor v.
State, 819 N.W.2d 383, 393 (Iowa 2012). Based on the
record before the district court, we must determine
"whether there was a material fact in dispute and if
not, whether the district court correctly applied the
law." Id. (quoting Robinson v. Fremont
County, 744 N.W.2d 323, 325 (Iowa 2008)).
recognize that "questions of negligence or proximate
cause are ordinarily for the jury" and "only in
exceptional cases should they be decided as a matter of
law." Thompson v. Kaczinski, 774 N.W.2d 829,
832 (Iowa 2009) (quoting Clinkscales v. Nelson Sec.,
Inc., 697 N.W.2d 836, 841 (Iowa 2005)).
The Estate's Appeal.
onset of this discussion, we note that the estate has not
been consistent with its arguments and theories of recovery
from the tort claim it filed through its appellate brief. We
will only consider the issues raised by the estate in its
appellate brief. In its brief, the estate makes three claims.
They are set forth as follows:
All of the foregoing demonstrates that a reasonable person
would be justified to believe that the residents of the
Pomeroy Care Center would be at foreseeable risk of harm by
William Cubbage and that there existed a duty of care by the
State not to release William Cubbage into a target rich
environment. These facts would also establish a duty to warn
the residents and assure that safety protocols were in place
to protect the residents from harm and that a failure to do
so would constitute negligence.
Whether the State Had a Duty of Care Not to Release William
Cubbage into a Target-Rich Environment.
reaching the merits of this issue, we must first decide if
the estate preserved error on this issue. We find the estate
did not preserve error on this issue.
must ordinarily raise an issue in the district court and the
district court must decide that issue before we may decide it
on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002). The underlying objective of this rule is to
ensure "orderly, fair[, ] and efficient
administration" of justice by preventing parties from
presenting one case at trial and another on appeal. State
v. Mann, 602 N.W.2d 785, 790 (Iowa 1999) (quoting
State v. Tobin, 333 N.W.2d 842, 844 (Iowa 1983)).
Thus, it serves the purpose of ensuring both opposing counsel
and the district court receive notice of the basis for a
claim at a time when corrective action is still possible.
See State v. Johnson, 476 N.W.2d 330, 334 (Iowa
1991); see also State v. Milner, 571 N.W.2d 7, 12
deciding whether a party has preserved error, the purposes of
our error preservation rules guide us. Lee v. State,
815 N.W.2d 731, 739 (Iowa 2012); Mann, 602 N.W.2d at
790-91. Accordingly, "we recognize an exception to the
general error-preservation rule when the record indicates
that the grounds for a motion were obvious and understood by
the trial court and counsel." State v.
Williams, 695 N.W.2d 23, 27-28 (Iowa 2005); In re
Det. of Hodges, 689 N.W.2d 467, 470 (Iowa 2004).
Generally, so long as a party timely brings the nature of the
error claimed to the attention of the district court, error
preservation does not turn on the thoroughness of
counsel's researching or briefing. Summy v. City of
Des Moines, 708 N.W.2d 333, 338 (Iowa 2006),
overruled in part on other grounds by Alcala v. Marriott
Int'l, Inc., 880 N.W.2d 699, 708 & n.3 (Iowa
2016). Nonetheless, if the court does not actually rule on
the claim asserted, a party must seek an expanded ruling to
preserve it. State v. Webster, 865 N.W.2d 223,
231-32 (Iowa 2015).
ruling, the district court stated,
It is factually established that Mr. Cubbage had been
unconditionally discharged from the CUSSO unit in November of
2010. This discharge was not "transitional" or
"conditional." Once discharged, the duty of the
State to supervise or monitor Mr. Cubbage ended.
"Discharge" is defined by Iowa Code 229A.2(3) as
meaning ". . . . an unconditional discharge from the
sexually violent predator program." At that time, the
State owed no duty to provide a "safety plan" as
contemplated by Iowa Code 229A.8A(6) because of the
unconditional nature of the discharge. Without the existence
of a duty, any claim for negligence must fail. Further, this
Court finds no common law duty as defined by prior case law
covering the facts of this case. Simply stated, since Cubbage
was unconditionally discharged from CUSSO, there was no
statutory or common law duty placed upon the State to
supervise, monitor or approve a "safety plan" and
absent a duty, Plaintiff's claims in this regard must be
dismissed. See Minor v. State, 819 N.W.2d 383 (Iowa
2012); Leonard v. State, 491 N.W.2d 508 (Iowa 1992).
district court did not rule on or consider any claim by the
estate that the State had a duty of care not to release
William Cubbage into a target-rich environment. The estate
did not make this claim in its petition or in its resistance
to the State's motion for summary judgment. The first
time the estate raised this issue was in its appellate brief.
We do not consider issues for the first time on appeal.
Geisler v. City Council of Cedar Falls, 769 N.W.2d
162, 166 (Iowa 2009). Accordingly, we will not reach this
issue because the estate failed to preserve error on the
issue in this appeal.
Whether the State Had a Duty to Warn the Residents of the
Dangers Cubbage Presented in Order to Protect the Residents
before reaching the merits of this issue, we must first
decide if the estate preserved error on this issue. The court
of appeals found the estate did not preserve error on this
issue. We disagree.
the estate raised the issue of failure to warn the vulnerable
residents of the Pomeroy Care Center in its resistance to the
State's motion for summary judgment. Thus, the court and
the State had notice for the basis of this claim. In its
order for summary judgment, the district court held that
"[w]ithout the existence of a duty, any claim for
negligence must fail, " and found no common law duty
applied in this case. We find the district court contemplated
the failure to warn claim raised by the estate in its
resistance to the State's motion for summary judgment,
thus preserving the theory of negligent failure to warn for
district court determined that once the court discharged
Cubbage from CCUSO, the State owed no duty to warn Gottschalk
of the dangers Cubbage posed. A negligence claim requires
"the existence of a duty to conform to a standard of
conduct to protect others, a failure to conform to that
standard, proximate cause, and damages."
Thompson, 774 N.W.2d at 834 (quoting Stotts v.
Eveleth, 688 N.W.2d 803, 807 (Iowa 2004)). "Whether
a duty arises out of a given relationship is a matter of law
for the court's determination." Id.
we have considered three factors when determining whether a
duty to exercise reasonable care exists: "the
relationship between the parties, the foreseeability of harm,
and public policy." McCormick v. Nikkel &
Assocs., Inc., 819 N.W.2d 368, 371 (Iowa 2012). We have
not viewed these factors as "three distinct and
necessary elements, but rather as considerations employed in
a balancing process." Thompson, 774 N.W.2d at
834. Ultimately, "whether a duty exists is a policy
decision based upon all relevant considerations that guide us
to conclude a particular person is entitled to be protected
from a particular type of harm." Id. (quoting
J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C.,
589 N.W.2d 256, 258 (Iowa 1999)).
Thompson, we adopted the duty analysis of the
Restatement (Third) of Torts: Liability for Physical &
Emotional Harm, which provides that "the assessment of
the foreseeability of a risk" is no longer part of the
duty analysis, but is "to be considered when the [fact
finder] decides if the defendant failed to exercise
reasonable care." Brokaw v. Winfield-Mt. Union Cmty.
Sch. Dist., 788 N.W.2d 386, 391 (Iowa 2010) (quoting
Thompson, 774 N.W.2d at 835 (citing Restatement
(Third) of Torts: Liab. for Physical Harm § 7 cmt.
j, at 97-98 (Am. Law Inst., Proposed Final Draft No.
our analysis to the Restatement (Third) of Torts, in
Thompson we held that "[a]n actor ordinarily
has a duty to exercise reasonable care when the actor's
conduct creates a risk of physical harm." Id.
(quoting Thompson, 774 N.W.2d at 834). Only "in
exceptional cases" will this general duty of reasonable
care not apply. Id. (quoting Thompson, 774
N.W.2d at 835). "An exceptional case is one in which
'an articulated countervailing principle or policy
warrants denying or limiting liability in a particular class
of cases.' " Id. (quoting
Thompson, 774 N.W.2d at 835).
Restatement (Third) has addressed the issue of a
defendant's liability for the actions of a third party
based on a special relationship with the person posing risks.
Restatement (Third) of Torts: Liab. for Physical &
Emotional Harm § 41, at 64-65 (Am. Law Inst. 2012). In
relevant part, it provides,
(a) An actor in a special relationship with another owes a
duty of reasonable care to third parties with regard
to risks posed by the other that arise within the scope of
(b) Special relationships giving rise to the duty provided in