Amended July 3, 2017 Estate of Mercedes Gottschalk by Coexecutors Richard Gottschalk and Rebecca Rassler v. Pomeroy Development, Inc. D/B/A Pomeroy Care Center v. State of Iowa, Third-Party On Review From

IN THE SUPREME COURT OF IOWA
No. 14–1326

Filed April 14, 2017

Amended July 3, 2017

ESTATE OF MERCEDES GOTTSCHALK by Coexecutors
RICHARD GOTTSCHALK and REBECCA RASSLER,

Appellants,

vs.

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,

vs.

STATE OF IOWA,

Third-Party Defendant-Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Calhoun County, Thomas

Bice, Judge.

An 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.
 2

Willis J. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for

appellants.

Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant

Attorney General, for appellee.

David H. Luginbill and Michael J. Streit of Ahlers & Cooney, P.C.,

Des Moines, for defendant Pomeroy Development.
 3

WIGGINS, Justice.

A 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.

I. Background Facts and Proceedings.

Mercedes 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.

The 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
 4

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.”

In 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.”

In 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.”

On 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.

Subsequently, on November 24, a state public defender acting on

behalf of Cubbage, filed a motion pursuant to Iowa Code section 229A.10
 5

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 and committing him to the Pomeroy Care Center

pursuant to Iowa Code chapter 229 and the Cherokee County court’s

November 16 order.

Before 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.

On August 21, 2011, an eight-year-old child visiting the care

center witnessed Cubbage sexually assaulting Gottschalk. On
 6

November 18, the State transferred Cubbage from the care center to the

Newton Correctional Facility.

Gottschalk 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 the residents.”

The 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 elderly victims.”

The 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
 7

alleged misrepresentations concerning Cubbage’s risk to other residents

in the care center.

In its 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.”

The 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.

The 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.
 8

The estate and Pomeroy appealed. 1 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.

II. Scope of Review.

We 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).

“[W]e 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)).

We also 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,

1The district court’s summary judgment dismissed only the State from the case
and the action remains pending as to defendant Pomeroy Development. We granted
interlocutory appeal.
 9

832 (Iowa 2009) (quoting Clinkscales v. Nelson Sec., Inc., 697 N.W.2d

836, 841 (Iowa 2005)).

III. The Estate’s Appeal.

At the 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.

A. Whether the State Had a Duty of Care Not to Release

William Cubbage into a Target-Rich Environment. Before 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.

A party 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
 10

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 (Iowa 1997).

In 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).

In its 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
 11
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).

The 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.

B. Whether the State Had a Duty to Warn the Residents of the

Dangers Cubbage Presented in Order to Protect the Residents from

Harm. Again, 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.

Here, 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

appeal.
 12

The 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.

Historically, 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)).

In 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. 1, 2005))).
 13

Turning 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).

The 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 the
relationship.

(b) Special relationships giving rise to the duty
provided in Subsection (a) include:

....

(4) a mental-health professional with patients.

Id. 2 While an affirmative duty might exist pursuant to section 41 of the

Restatement (Third), “a court may decide, based on special problems of

2“Section 315 of the Second Restatement of Torts stated the general proposition

that there is no affirmative duty to control the conduct of a third party from causing
harm to another.” Restatement (Third) of Torts: Liab. for Physical & Emotional Harm
§ 41 cmt. a, at 65. Section 41 of the Restatement (Third) “replaces §§ 315(a), 316, 317,
and 319 and includes an additional relationship creating an affirmative duty, that of
mental health professionals and patient.” Id.
 14

principle or policy that no duty or a duty other than reasonable care

exists.” Id. cmt. b, at 65; see also id. § 7(b), at 77 (Am. Law Inst. 2010).

Prior to our adoption of the Restatement (Third) in Thompson, we

found a special relationship existed between a psychiatrist and a patient,

giving rise to a duty to either control the behavior of the other person or

to protect a third party. Leonard v. State, 491 N.W.2d 508, 510–11 (Iowa

1992). There, we stated, “that the risks to the general public posed by

the negligent release of dangerous mental patients would be far

outweighed by the disservice to the general public if treating physicians

were subject to civil liability for discharge decisions.” Id. at 512. We

then held that the duty of care did not apply to the general public. Id. In

making this decision, “the principle that the scope of the duty turns on

the foreseeability of harm to the injured person” guided our decision. Id.

at 511. In Leonard, our analysis only addressed a psychiatrist’s duty to

members of the general public, and we did “not decide what duty, if any,

would attach to the discharge decision if the psychiatrist had reason to

believe some particular person would be endangered by the patient’s

release.” Id. at 512.

Before we analyze the facts in this case under the Restatement

(Third) and Leonard, we must first decide if a special relationship existed.

In Leonard, the hospital made the decision to release the patient from its

care. In this case, the State did not make the decision to release

Cubbage from CCUSO or commit him to the Pomeroy Care Center. The

district court entered an order discharging Cubbage from CCUSO

pursuant to Iowa Code section 229A.10. In its order, the court

acknowledged that it reviewed the motion to discharge and found good

cause to discharge Cubbage from his civil commitment under chapter

229A. Implicit in the court’s finding was that the State could not “show
 15

beyond a reasonable doubt that [Cubbage’s] mental abnormality or

personality disorder remains such that [Cubbage] is likely to engage in

predatory acts that constitute sexually violent offenses if discharged.”

See Iowa Code § 229A.10. Under the Code, the court was required to

discharge him. Id.

Another district court held a hearing and committed him to the

Pomeroy Care Center under Code section 229.13. The court stated its

reason for the commitment was “due to his dementia and executive

dysfunction, thus being a danger to [himself] and others.” “Dementia” is

“the loss, usually progressive, of cognitive and intellectual functions,

without impairment of perception and consciousness.” Dementia,

Stedman’s Medical Dictionary (27th ed. 2000). Executive functions

include “[h]igher order cognitive processes such as goal setting, planning,

organization, adaptive responding, and self-monitoring.” John F. Clarkin

et al., The Role of Psychiatric Measures in Assessment and Treatment, in

Textbook of Psychiatry 73, 92–93 (Robert E. Hales, Stuart C. Yudofsky,

Glen O. Gabbard, eds., 5th ed. 2008). In other words, Cubbage was

committed to the Pomeroy Care Center because his dementia made him

unable to take care of himself.

The district courts made the ultimate decision to release Cubbage

from CCUSO and commit him to the Pomeroy Care Center, not the State.

The courts made their decisions after they considered the evidence before

them. The courts reviewed the expert testimony and reports and decided

the law required them to release Cubbage from CCUSO and commit him

to the Pomeroy Care Center. The courts, in making their decisions, had

the option of giving as much weight as they thought the expert testimony

deserved. Crouch v. Nat’l Livestock Remedy Co., 210 Iowa 849, 851–52,

231 N.W. 323, 324 (1930). The courts could have rejected or accepted
 16

the expert testimony. Id. Furthermore, Iowa Code chapter 229 and

229A place the responsibility on the court to examine the evidence and

not merely act as a rubber stamp of the expert testimony. See Jacobs v.

Taylor, 379 S.E.2d 563, 566 (Ga. Ct. App. 1989) (stating “this court will

not read the statutory responsibility placed on a committing court . . . as

consisting merely of ‘rubberstamping’ the opinions of expert witnesses”).

Although the court had the authority to release Cubbage from CCUSO

with supervision, it chose not to. Iowa Code § 229A.9A. Instead, one

court discharged Cubbage from CCUSO and another committed him to

the Pomeroy Care Center. Neither the director nor any staff member of

CCUSO had the authority to release or discharge Cubbage. Our courts

discharged Cubbage. Accordingly, we find there was no special

relationship to invoke section 41 of the Restatement (Third).

Consequently, the district court was correct in finding the State had no

duty to warn the residents.

C. Whether the State Had a Duty to Assure that Safety

Protocols Were in Place to Protect the Residents from Harm. We just

found there was no special relationship invoking section 41 of the

Restatement (Third) to create a duty upon the State to warn Gottschalk

of Cubbage’s alleged dangerous propensities. For the same reasons that

the State did not owe a duty to warn Gottschalk, we find the State did

not have a duty to assure that safety protocols were in place to protect

the residents from harm.

D. Whether the District Court Erred in Finding the State

Immune from Liability Under Iowa Code Section 669.14. The State

claims as an affirmative defense it is immune from liability under the

Iowa Tort Claims Act. The law provides,
 17
The provisions of this chapter shall not apply with
respect to any claim against the state, to:

....

4. Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights.

Iowa Code § 669.14(4).

The record does not disclose any representations made to

Gottschalk by the State. We have also found the State did not have a

duty to do so. Accordingly, we need not address this issue as to the

estate.

E. Conclusion. For all the reasons stated above, we find the

district court was correct in granting the State’s motion for summary

judgment against the estate.

IV. The Pomeroy Care Center’s Appeal.

The Pomeroy Care Center also has not been consistent with its

arguments and theories of recovery from the petition it filed through its

appellate brief. We will only consider the issues raised by the care center

in its appellate brief. In its brief, the care center makes five arguments.

First, it argues the district court erred in finding as a matter of law that

the State owed no duty of care to the care center. Next, it argues a

genuine issue of material fact exists regarding whether the State acted

negligently in discharging Cubbage from CCUSO. Third, it argues a

genuine issue of material fact exists regarding whether the State acted

negligently in performing its role in the civil commitment of Cubbage to

the Pomeroy Care Center under Iowa Code chapter 229. Fourth, it

argues a genuine issue of material fact exists regarding whether the State

acted negligently in failing to supervise and monitor Cubbage. Lastly, it
 18

argues the district court erred in granting the motion for summary

judgment when a motion to compel was pending.

A. Whether the District Court Erred in Finding as a Matter of

Law that the State Owed No Duty of Care to the Care Center. The

crux of the care center’s argument on this issue is that because the State

had a special relationship with Cubbage, the State had a common law

duty to accurately warn the care center of Cubbage’s dangerous

propensities. First, we doubt this issue is preserved. Although raised in

its petition, the care center did not argue this issue in its resistance to

the State’s motion for summary judgment. Thus, we do not believe the

district court considered the issue or ruled upon it.

Moreover, in its brief, the care center relies on the “Duty to Third

Parties Based on Special Relationship with Person Posing Risks” now

contained in section 41 of the Restatement (Third) to support its

argument. Factually, section 41(b)(2) of the Restatement (Third) appears

to support the care center’s argument because the representations made

by the State to the care center were made while Cubbage was in the

State’s custody. However, we need not decide if section 41(b)(2) is

applicable to the care center’s claim because at the time any

representations were made, the State could not release Cubbage from its

custody, only a court could.

As we previously found, a special relationship does not exist

between the State and Cubbage when the courts discharged him from

CCUSO and committed him to the care center. The courts made the

decision to discharge Cubbage, not the State. Thus, even if the care

center had preserved this issue, it is without merit.

B. Whether a Genuine Issue of Material Fact Exists Regarding

Whether the State Acted Negligently in Discharging Cubbage from
 19

CCUSO. The care center preserved this issue. However, the undisputed

facts show the court made the final decision to discharge Cubbage. The

court was not required to discharge him. Again, our courts are not

rubber stamps, but they are deliberative bodies making decisions based

upon the evidence before them. The care center cites no authority

requiring the State to present its case to the court differently at the

discharge hearing. Thus, the district court was correct in finding no

duty, and therefore, no genuine issue of material fact exists on this

issue.

C. Whether a Genuine Issue of Material Fact Exists Regarding

Whether the State Acted Negligently in Performing Its Role in the

Civil Commitment of Cubbage to the Pomeroy Care Center Under

Iowa Code Chapter 229. The same reasoning and logic applies to this

argument as we applied to the issue concerning whether the State acted

negligently in discharging Cubbage from CCUSO. Thus, the district

court was correct in finding no duty; therefore, no genuine issue of

material fact exists on this issue.

D. Whether a Genuine Issue of Material Fact Exists Regarding

Whether the State Acted Negligently in Failing to Supervise and

Monitor Cubbage. The resolution of this issue depends on the

applicability of the “Duty to Third Parties Based on Special Relationship

with Person Posing Risks” now contained in section 41 of the

Restatement (Third). As we previously found, the district court

discharged Cubbage, not the State. Therefore, the State has no duty

based upon a special relationship. Thus, the district court was correct in

finding no duty; therefore, no genuine issue of material fact exists on this

issue.
 20

E. Whether the District Court Erred in Granting the Motion

for Summary Judgment When a Motion to Compel Was Pending. We

agree with the court of appeals that we need not reach this issue having

found no duty existed between the State and the care center.

F. Conclusion. For all the reasons stated above, we find the

district court was correct in granting the State’s motion for summary

judgment against the care center.

V. Disposition.

We find under the issues preserved that no duty existed as a

matter of law between the State and Gottschalk or the State and the

Pomeroy Care Center. Accordingly, we affirm the decisions of the court

of appeals and the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

Cady, C.J., and Appel, J., join this opinion. Waterman and

Mansfield, JJ., join this opinion but also concur specially. Hecht, J.,

files a dissent in which Zager, J., joins. Zager, J., files a separate dissent

in which Hecht, J., joins.
 21
#14–1326, Estate of Gottschalk v. Pomeroy Dev., Inc.

WATERMAN, Justice (concurring specially).
I respectfully concur in the majority opinion. I write separately to

set forth my view that the claims against the State fail on several legal

grounds not reached by the majority. Because the facts of this case cry

out for a remedy, I begin by noting this appeal resolves only those claims

by the plaintiffs and the nursing home against the State of Iowa. The

plaintiffs will get their day in court on their tort claims against the

nursing home operator, Pomeroy Development, Inc., which chose to

accept a known sex offender as an in-patient resident and allegedly failed

to properly monitor him to protect its vulnerable, elderly residents,

including Mercedes Gottschalk.

In my view, the State’s tort duty ended upon William Cubbage’s

unconditional release from its custody and transfer to the nursing home.

Upon that transfer, Cubbage became Pomeroy’s responsibility. “Liability

follows control . . . .” Estate of McFarlin v. State, 881 N.W.2d 51, 64

(Iowa 2016). A party in control can take precautions to reduce the risk of

harm to others. See McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d

368, 374 (Iowa 2012) (“The reason is simple: The party in control . . . is

best positioned to take precautions to identify risks and take measures

to improve safety.”). Section 41 of the Restatement (Third) of Torts:

Liability for Physical & Emotional Harm, is directly on point and

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 the
relationship.
(b) Special relationships giving rise to the duty
provided in Subsection (a) include:
....
 22
(2) a custodian with those in its custody[.]

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 41

(Am. Law Inst. 2012) [hereinafter Reinstatement (Third)]. The comment

accompanying that section, entitled “Duty of custodians,” further

explains,

Custodians of those who pose risks to others have long owed
a duty of reasonable care to prevent the person in custody
from harming others. The classic custodian under this
Section is a jailer of a dangerous criminal. Other well-
established custodial relationships include hospitals for the
mentally ill and for those with contagious diseases.
Custodial relationships imposing a duty of care are limited to
those relationships that exist, in significant part, for the
protection of others from risks posed by the person in
custody. The duty of care is limited to the period of actual
custody.

Id. § 41 cmt. f, at 67 (emphasis added). This bright-line rule is clear,

easy to apply, and consistent with Iowa caselaw. As the court of appeals

correctly concluded,

[U]pon the unconditional discharge of Cubbage from the
CCUSO—a decision made by the district court—the special
relationship between the State and Cubbage ended. See
Iowa Code § 229A.2(4) (“ ‘Discharge’ means an unconditional
discharge from the sexually violent predator program. A
person released from a secure facility into a transitional
release program or released with or without supervision is
not considered to be discharged.”). After the district court
issued the discharge order, the State had no ongoing
obligation to monitor or supervise Cubbage.

(Footnote omitted.) The district court applied the same analysis in

entering summary judgment for the State. Once an inmate obtains his

or her release from incarceration, the state is no longer subject to a tort-

law duty for harm the former inmate inflicts on another person. This no-

duty rule is not based on foreseeability of harm, but rather reflects a

policy choice, making tradeoffs between the goals of deterrence and

victim compensation and the costs of imposing liability.
 23

Foreseeability alone is insufficient to create a duty in tort for the

misconduct of others. See Thompson v. Kaczinski, 774 N.W.2d 829, 835

(Iowa 2009) (removing foreseeability from duty analysis). Many inmates

who serve their time or otherwise win release from jail or prison—or in

this case, the State’s civil commitment unit for sexual offenders

(CCUSO)—foreseeably commit more crimes. See Binschus v. State, 380

P.3d 468, 581 (Wash. 2016) (en banc) (recognizing recidivism rate is over

fifty percent and therefore “one could argue that in almost any case, it is

foreseeable that an inmate may commit another crime after release”).

But we have never imposed civil liability on the state for crimes a person

commits after release from custody. As the drafter’s comment

recognizes, imposing such tort liability would have a chilling effect on

parole or bail determinations for pretrial release:

Courts have been reluctant to impose a duty on actors
who make discretionary determinations about parole or
prerelease programs, even though these decisions arise in a
custodial relationship. Imposing such a duty, thereby
creating concern about potential liability, might
detrimentally affect the decisionmaking of parole boards and
others making similar determinations.

Restatement (Third) § 41 cmt. f, at 67–68.
We reached the same conclusion in Leonard v. State and rejected

“the potential for limitless liability” by the state for harm to persons

attacked by a former custodial patient. 491 N.W.2d 508, 512 (Iowa

1992). In Leonard, a state mental hospital discharged a patient, Henry

Parrish, to outpatient care after treating him for bipolar disorder. Id. at

509–10. Shortly after his release, Parrish severely beat a coworker, John

Leonard, without provocation. Id. at 510. Leonard sued the state. Id.

We held as a matter of law the treating psychiatrist employed by the

state owed no duty to Leonard, a member of the general public. Id. at
 24

512. We concluded the “risks to the general public posed by the

negligent release of dangerous mental patients would be far outweighed

by the disservice to the general public if treating physicians were subject

to civil liability for discharge decisions.” Id. We feared that “[t]he

treating physician would indulge every presumption in favor of further

restraint, out of fear of being sued.” Id. (quoting Sherrill v. Wilson, 653

S.W.2d 661, 664 (Mo. 1983) (en banc)).

Today’s case is an even stronger one for a no-duty analysis. The

district court not only ordered Cubbage’s release, but also approved the

plan whereby he would be transferred to Pomeroy. See Iowa Code

§ 229A.10 (2011) (providing that a petition for discharge must be

authorized by the court); id. § 229.13(1)(b) (allowing court to place

individual with “serious mental impairment” under care of appropriate

hospital or facility for treatment).

Other courts have held the government is not liable in tort after an

inmate’s release from incarceration, even when it is foreseeable he will

reoffend. In Binschus, a former inmate fatally shot six strangers and

injured four others in a psychotic episode several months after his

unconditional release from a county jail. 380 P.3d at 470. Civil actions

were filed against the county, alleging it negligently failed to diagnose

and treat his dangerous condition before releasing him. Id. The trial

court granted the county’s motion for summary judgment based on lack

of duty and proximate cause. Id. The Washington Supreme Court

affirmed, holding the county owed no duty to the plaintiffs after the

inmate’s release from jail. Id. at 472 (noting “[t]he practical implications

of imposing such a broad duty on jails [would be] striking”); see also

Fryman v. Harrison, 896 S.W.2d 908, 910 (Ky. 1995) (holding jailer

“cannot be held individually responsible for the criminal acts of an
 25

inmate” after release from custody), modified by Gaither v. Justice & Pub.

Safety Cabinet, 447 S.W.3d 628, 638 (Ky. 2014); Holloway v. State, 875

N.W.2d 435, 447 (Neb. 2016) (holding state was not liable in tort for

crimes of former inmate because it lacked control “after he was

released”); cf. Wells v. Walker, 671 F. Supp. 624, 627 (E.D. Ark. 1987)

(dismissing crime victim’s § 1983 claim because prison officials owed “no

constitutionally mandated duty to protect private citizens [after inmate]

was freed”), aff’d, 852 F.2d 368 (8th Cir. 1988).

Cubbage was not under state supervision when he assaulted

Mercedes Gottschalk. Indeed, courts in most states, including Iowa,

reject governmental tort liability even for crimes committed by parolees

or probationers who are under state supervision. Fitzpatrick v. State,

439 N.W.2d 663, 667–68 (Iowa 1989) (affirming dismissal of tort claim

against parole officer by victim shot by parolee); Bartunek v. State, 666

N.W.2d 435, 442 (Neb. 2003) (collecting cases). These courts decline to

find a duty because “[t]he level of control afforded to a parole or

probation officer is not such that an officer . . . ‘takes charge of a third

person,’ ” given that the parolee or probationer is “generally free to

conduct his or her day-to-day affairs.” Bartunek, 666 N.W.2d at 442.

Courts note that imposing tort liability on government defendants for

crimes committed by offenders under supervision would result in

continued detentions and discourage parole, probation, or pretrial

release. Compare Sorge v. State, 762 A.2d 816, 821–22 (Vt. 2000)

(declining to impose tort duty on state for juvenile in custody and

collecting cases), with Leonard, 491 N.W.2d at 512 (noting that imposing

liability on therapist for patient’s postrelease assault would cause

doctors to overrestrain patients). If the State is not liable in tort for
 26

crimes committed by an offender released under supervision, it cannot

be liable in tort after an unconditional release.

Cubbage made no threats against Mercedes Gottschalk or any

other Pomeroy resident while he was in state custody at CCUSO. He had

never met her. This case is distinguishable from those imposing a duty

for failing to take action when an inmate or patient in custody names

someone he overtly threatens to harm upon his release. See, e.g.,

Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 343 (Cal. 1976)

(imposing liability on state when patient in custody confided in state-

employed therapist that he intended to kill Tatania Tarasoff and made

good on his threat after his release from hospital). Generalized threats

while in custody are insufficient to create a duty to warn. Four years

after deciding Tarasoff, the California Supreme Court addressed

the propriety of imposing on those responsible for releasing
or confining criminal offenders a duty to warn of the release
of a potentially dangerous offender who . . . has made a
generalized threat to a segment of the population.

Thompson v. County of Alameda, 614 P.2d 728, 733 (Cal. 1980). While in

a county jail, an inmate threatened to “take the life of a young child

residing in the neighborhood” without naming any child. Id. at 730. The
jailers released him into the temporary custody of his mother without

warning her or other parents in the neighborhood of his threat. Id.

Within twenty-four hours, he killed a young child who lived a few doors

away. Id. The parents sued the county, alleging it breached a duty to

warn parents in the neighborhood. Id. The trial court dismissed the

lawsuit, and the California Supreme Court affirmed, holding such a

generalized threat did not support a duty to warn. Id. at 730, 738. The

court declined to impose “blanket liability” on the county for failing to

warn neighborhood parents or the offender’s mother of his dangerous
 27

tendencies upon his supervised release. Id. at 734. The court

distinguished Tarasoff because neither “a direct or continuing

relationship between” the parties and the county existed, nor was the

victim a “foreseeable or readily identifiable target” when the offender

made merely a generalized threat. Id. The court noted requiring the

county to warn the public would “jeopardize rehabilitative efforts” of

programs like parole and probation because “authorities would be far

less likely to authorize release given the substantial drain on their

resources which such warnings might require.” Id. at 737. Additionally,

the court declined to impose a duty to warn the offender’s mother, his

custodian, noting she had been “aware of her son’s incarceration for the

previous 18 months.” Id.

I see a parallel between these cases. Pomeroy was aware of

Cubbage’s incarceration and crimes when it received him into its care.

Any warning would have been inherently generalized in nature, given

that Cubbage did not make threats toward any Pomeroy resident—either

generally or specifically—before his unconditional discharge from state

custody.

There is another bar to recovery against the State—the common

law public-duty doctrine. 3 In Estate of McFarlin, we applied the public-

duty doctrine to affirm a summary judgment motion dismissing tort

claims against the state in a wrongful-death action arising out of a

boating accident on a state-owned lake, a confined area. 881 N.W.2d at

3The district court and court of appeals did not reach the public-duty doctrine,

but the State included the doctrine in its motion for summary judgment and appellate
briefs as an alternative ground for dismissal. “We will consider an alternative ground
raised in the district court and urged on appeal even though the district court [did] not
. . . rule on the alternative ground.” Hawkeye Foodserv. Distrib., Inc. v. Iowa Educators
Corp., 812 N.W.2d 600, 610 (Iowa 2012).
 28

64. We noted the applicability of the public-duty doctrine under the

Third Restatement:

In Thompson v. Kaczinski, we adopted section 7 of the
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm. The reporter’s note to section 7
acknowledges the continued vitality of the public-duty
doctrine:
Deference to discretionary decisions of another branch
of government. The “public-duty” doctrine is often
explained as preventing government tort liability for
obligations owed generally to the public, such as
providing fire or police protection. Only when the duty
is narrowed to the injured victim or a prescribed class
of persons does a tort duty exist.
Section 37 provides that “[a]n actor whose conduct has not
created a risk of physical . . . harm to another has no duty of
care to the other unless a court determines that one of the
affirmative duties provided in §§ 38–44 is applicable.”
Section 40, entitled “Duty Based on Special Relationship
with Another” provides that “[a]n actor in a special
relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the
scope of the relationship.” We conclude the public-duty
doctrine remains good law after our adoption of sections of
the Restatement (Third) of Torts.

Id. at 59–60 (alterations in original) (footnote omitted) (citation omitted)

(first quoting Restatement (Third) § 7, reporter’s note cmt. g, at 93–94

(Am. Law Inst. 2010); then quoting id. § 37, at 2; and then quoting id.

§ 40(a), at 37). Earlier cases, which remain good law, applied the public-

duty doctrine to dismiss tort claims brought by persons injured by

someone the police released from custody or failed to detain or monitor.

See Fitzpatrick, 439 N.W.2d at 667–68; Hildenbrand v. Cox, 369 N.W.2d

411, 414–16 (Iowa 1985) (affirming summary judgment dismissing tort

claim by estate of drunk driver who died in accident shortly after police

questioned but failed to arrest him following his collision with a planter

on the town square); see also Kolbe v. State, 625 N.W.2d 721, 729–30

(Iowa 2001) (holding public-duty doctrine barred tort claim by victim of
 29

visually impaired driver to whom the state carelessly issued a driver’s

license); Sankey v. Richenberger, 456 N.W.2d 206, 208–09 (Iowa 1990)

(dismissing tort claims against police chief by victims shot at city council

meeting chief attended). The plaintiffs and Pomeroy fail to cite a case

from any jurisdiction imposing tort liability on a state or local

government for the acts of a former patient or inmate after his or her

unconditional release from custody. If we allowed the claimants in

today’s case to recover against the State, it would be difficult to set a

limiting principle on the scope of governmental liability for third-party

criminal conduct.

The district court and court of appeals determined the State was

entitled to summary judgment against Pomeroy based on the State’s

statutory immunity under Iowa Code section 669.14(4). 4 Our court’s

majority did not need to reach that issue or the public-duty doctrine after

affirming summary judgment on other grounds. I mention that

immunity and the public-duty doctrine as additional reasons the

analysis in the dissenting opinions fails to salvage the claims against the

State.

For all these reasons, I concur in the majority’s opinion affirming
the decision of the court of appeals and district court’s summary

judgment.

Mansfield, J., joins this special concurrence.

4The district court granted the State’s motion for summary judgment on
Pomeroy’s negligent misrepresentation claim based on Iowa Code section 669.14(4).
Pomeroy did not challenge that ruling on appeal, and the court of appeals affirmed the
district court for that reason.
 30

#14–1326, Estate of Mercedes Gottschalk v. Pomeroy Dev., Inc.

HECHT, Justice (dissenting).

I cannot agree with the duty analysis undertaken by the majority,

and I therefore respectfully dissent. The summary judgment record

leaves little doubt that William Cubbage was a highly dangerous sexually

violent predator (SVP) with a substantial likelihood of reoffending when

he was committed to the civil commitment unit for sexual offenders

(CCUSO). Cubbage had not made progress in the CCUSO treatment

program prior to his release into a small-town nursing home, and

CCUSO administrators believed he continued to present a danger to

himself and others such that he must continue to be involuntarily

detained. Although Alzheimer’s-related dementia was a factor motivating

the CCUSO administrators’ decision to transfer him out of the SVP-

treatment program, our duty analysis cannot overlook the fact that

Cubbage was an unsuccessfully treated sexual predator at the time the

transfer plan was formulated and implemented by the department of

human services (DHS), representatives of the attorney general’s office,

and representatives of the Iowa public defender’s office. Summary

judgment should not have been granted.

I. Additional Background Facts and Proceedings.

I begin with evidence in the summary judgment record that

informs my analysis. Cubbage was adjudicated an SVP in 2002 and

committed to CCUSO at the age of seventy-one. Considerable evidence

supported his adjudication, including four convictions for sexual

misconduct perpetrated against children. The convictions in 1987

(lascivious acts), 1991 (indecent contact with a child), 1997 (indecent

contact with a child), and 2000 (assault with intent to commit sexual

abuse) demonstrate that Cubbage is undoubtedly a member of what our
 31

legislature has described as a “small but extremely dangerous group” of

persons whose “likelihood of engaging in repeat acts of predatory sexual

violence is high.” Iowa Code § 229A.1 (2011).

In his initial commitment evaluation at CCUSO in 2002, Cubbage

scored at high risk to reoffend on two actuarial assessments. The

evaluator concluded Cubbage was “a menace to the health and safety of

others” if “not confined in a secure facility, as a defined by Chapter

229A.” The mental abnormality supporting Cubbage’s classification as a

predator was a personality disorder with antisocial and narcissistic

features causing him to engage in sexually aggressive behavior.

In enacting chapter 229A, our legislature observed that SVPs tend

to have “antisocial personality features” requiring “very long-term”

treatment using rehabilitation modalities that are different from those

utilized in treating mentally ill persons committed involuntarily under

chapter 229. Id. The summary judgment record reveals Cubbage was

resistant to treatment at CCUSO. In fact, he stopped participating

altogether in treatment sometime in 2005. By the time of his final

CCUSO annual evaluation in July 2010, Cubbage “continu[ed] to display

dynamic risk factors that result in him being likely to engage in

predatory acts constituting sexually violent offenses if discharged.”

Notably, the report generated as part of the 2010 evaluation concluded

Cubbage—then age eighty-one—had not shown a change in the mental

abnormality that led to his SVP commitment. For that reason, the

evaluator who authored the 2010 report found Cubbage was not ready

for transitional release under chapter 229A because he failed to meet five

of the ten criteria governing eligibility for transitional placement. See id.

§ 229A.8A.
 32

In particular, Cubbage was ineligible for transitional placement

because he had not yet achieved and demonstrated significant insights

into his sex offending cycle, he had not accepted responsibility for his

past behavior or understood the impact of sexually violent crimes on

victims, and he had a major discipline report in June 2010 for disrespect

and sexual behavior. See id.

Notwithstanding Cubbage’s unsuccessful course of treatment

during eight years of detention as an SVP, his persisting mental

abnormality, and his failure to meet the criteria for transitional release,

the evaluator opined that “the dynamics involved which have determined

Mr. Cubbage [is] more likely than not to re-offend in a sexually violent

manner have changed.” The evaluator’s report opaquely concluded

Cubbage “does not appear to meet the threshold of [an SVP] as defined in

Chapter 229A and currently would be more appropriately characterized

as a person who has committed sexual offenses in the past and may be

suffering from early stages of dementia.” 5

CCUSO administrators decided to transfer Cubbage out of the

program. In furtherance of the transfer plan, civil commitment

proceedings were commenced against Cubbage in the district court for
Cherokee County under chapter 229. The State’s petition alleged

Cubbage was a danger to himself and others due to his dementia and

executive dysfunction. At that time, Cubbage was a sexual predator who

5The report thus appears to be internally inconsistent. On the one hand, it
discloses Cubbage continues to present a risk to reoffend; on the other hand, the report
suggests Cubbage “does not appear” to meet the threshold of an SVP. The report noted
that Cubbage appeared to be “less able to participate due to his cognitive impairments
and other medical conditions.” The record does not reveal the extent or severity of
Cubbage’s cognitive impairments as they may have existed in July 2010 or thereafter;
nor does it explain why an SVP with dementia would be less dangerous to others than
an SVP without dementia.
 33

had not been successfully treated at CCUSO for the attributes that made

him dangerous to others.

On November 16, 2010, the district court for Cherokee County

entered an order for hospitalization that directed Cubbage be placed in

the Pomeroy Care Center for treatment. On November 24, 2010, the

execution of the State’s plan to move Cubbage out of CCUSO—the

institution created for the express purpose of detaining sexual

predators—moved quickly forward. On that day, a motion to discharge

Cubbage from his commitment to CCUSO under chapter 229A was filed

in Des Moines County district court. The motion advised the court of a

mutual agreement between the director of DHS and representatives of

the Iowa attorney general’s office and the Iowa public defender’s office

that Cubbage “is unable to obtain any further gains from his civil

commitment at CCUSO” 6 and is “seriously mentally impaired and in

need of full-time custody and care.”

The motion to discharge Cubbage notably failed to inform the

district court that he had been unsuccessfully treated for the mental

abnormality predisposing him to commit sexually violent offenses.

Hearing no resistance to the transfer orchestrated by the State, the
district court entered an order that same day implementing the

stipulated plan discharging Cubbage from commitment under chapter

229A and committing him to the Pomeroy Care Center under chapter

229.

6Because the record reveals Cubbage had been uncooperative in the treatment
process since at least 2005 and his mental abnormality making him likely to reoffend
remained as of July 2010, it is unclear to me what “gains” Cubbage had achieved while
at CCUSO.
 34

As the majority has accurately detailed, Cubbage allegedly had

nonconsensual sexual contact with Gottschalk, a patient at the Pomeroy

Care Center in August 2011. Gottschalk filed a claim with the state

appeal board asserting DHS was negligent in failing to (1) prepare and

provide a discharge safety plan for Cubbage, (2) follow up with the

Pomeroy Care Center to assure Cubbage was properly restrained and/or

supervised there, and (3) warn the residents of the Pomeroy Care Center

that a sexual deviant was living among them. This action was

subsequently commenced by Gottschalk’s estate against Pomeroy Care

Center and the State.

The State filed a motion for summary judgment asserting it owed

no duty to Gottschalk under either Iowa Code chapter 229 or 229A after

Cubbage’s discharge from CCUSO. The district court granted the State’s

summary judgment motion, concluding the State owed no duty to

Gottschalk after Cubbage was unconditionally discharged from CCUSO.

II. The Duty Analysis.

I agree with the majority’s conclusion that the issue of whether the

State owed a duty to warn Gottschalk of the risk of physical harm posed

to her by her exposure to Cubbage—an unsuccessfully treated SVP—was

preserved for our review. The theory of liability based upon the State’s

failure to warn Gottschalk was asserted in Gottschalk’s appeal board

claim and in the plaintiff’s resistance to the State’s motion for summary

judgment. Although the district court’s summary judgment ruling made

no reference to warning, I conclude this theory of liability was clearly

before the district court. Because the ruling was based on the

proposition that the 2010 order discharging Cubbage from CCUSO

terminated any responsibility of the State for Cubbage’s postdischarge

conduct as a matter of law, a motion under Iowa Rule of Civil Procedure
 35

1.904(2) requesting the district court to expressly rule on whether the

State owed a duty to warn Gottschalk about the risk of her exposure to

Cubbage at the Pomeroy Care Center would have been pointless. Thus,

like the majority, I conclude we should address whether the State owed a

duty to warn Gottschalk of the risk of physical harm posed to her by

Cubbage.

Unlike the majority, however, I conclude the State owed a duty to

warn Gottschalk. An actor ordinarily owes a duty to exercise reasonable

care when the actor’s own conduct creates a risk of physical harm.

Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009). As we noted

in Thompson, this general duty is explained in section 7 of the

Restatement (Third) of Torts. Id. (citing Restatement (Third) of Torts:

Liab. for Physical Harm § 7, at 90 (Am. Law Inst., Proposed Final Draft

No. 1, 2005)). However, the majority has chosen to view the physical and

emotional harm claimed by the plaintiff in this case as harm allegedly

caused exclusively by Cubbage—not the conduct of state actors.

Accordingly, the court’s analysis of the duty issue is not based on the

general duty principles under section 7 of the Restatement (Third). 7

7Although the majority has addressed the State’s liability under the rubric of
special relationship, I would leave room for the possibility that the State’s conduct in
this case directly caused a risk of physical harm to Gottschalk by transferring
Cubbage—an unsuccessfully treated SVP—to the Pomeroy Care Center. See
Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 37 cmt. d, at 4–5
(Am. Law Inst. 2012) (noting that “an actor’s conduct may increase the natural or third-
party risk” and thereby “creates risks of its own”). A reasonable fact finder could find
that the State’s transfer of Cubbage to a target-rich nursing home environment that
lacked CCUSO-like security substantially increased the risk that Cubbage would offend
if reasonable warnings were not given to those exposed to the risk at the care center.
Such risk-creating conduct is governed by the ordinary duty of reasonable care
addressed in section 7 of the Restatement (Third). Id. § 7, at 77 (Am. Law Inst. 2010).
Because the majority has addressed the State’s liability in this case under the rubric of
special relationship, however, I will similarly focus my analysis there as well. I would,
however, reach the same result under a section 7 duty analysis.
 36

The proposition that an actor generally owes no duty of care with

respect to risks of physical harm created by another is expressed in

section 37 of the Restatement (Third). Restatement (Third) of Torts: Liab.

for Physical & Emotional Harm § 37, at 2 (Am. Law Inst. 2012). This

proposition constitutes a no-duty rule based on policy. Id. § 37 cmt. b,

at 5. There are exceptions to this no-duty rule, however. In some

circumstances, the common law imposes an affirmative “duty to take

action to prevent or ameliorate the risk of harm created by others.” Id.

For example, “[a]n actor in a special relationship with another owes a

duty of reasonable care to third persons with regard to risks posed by the

other that arise within the scope of the relationship.” Id. § 41(a), at 64–

65. Section 41 lists several special relationships giving rise to a duty of

reasonable care: a parent with children, a custodian with those in its

custody, an employer with employees when the employment facilitates

harm to third parties, and mental-health professionals with patients. Id.

§ 41(b). This list of special relationships supporting the existence of a

duty is not exclusive. Id. § 41 cmt. i, at 73. 8

I would hold in this case that a special relationship existed

between the State and Cubbage supporting the imposition of a duty to
warn Gottschalk. The relationship between CCUSO and Cubbage is

closely analogous to a mental-health professional–patient relationship.

See id. § 41(b), at 65. Obvious and compelling policy reasons support

8Similarly, comment b to section 37 of the Restatement (Third) explains that
the affirmative duties identified in [Chapter 7 of the Restatement (Third)
of Torts] are not an exclusive list; courts may identify additional areas for
affirmative duties in the future, just as courts may decide, for reasons of
policy or principle, that additional no-duty rules should be recognized.
Restatement (Third) of Torts: Liab. for Emotional & Physical Harm § 37 cmt. b,
at 3.
 37

the imposition of a duty of care on the State as it transferred an

unsuccessfully treated—and therefore dangerous—sexual predator to a

nursing home populated by a finite number of especially vulnerable

residents. A reasonable fact finder could find on this record that

Cubbage was an SVP whose persistent mental abnormality rendered him

likely to reoffend sexually before and after the transfer to Pomeroy Care

Center. He had been resistant to treatment at CCUSO during the five

years prior to his discharge, and the evidence tending to prove he had

not been meaningfully rehabilitated during his detention is

overwhelming.

The duty I would recognize in this case is distinguishable from the

one claimed but rejected by this court in Leonard v. State, 491 N.W.2d

508 (Iowa 1992). In Leonard, we held a state-employed psychiatrist who

discharged a patient from a mental-health institute owed no duty to a

person subsequently injured by the patient. Id. at 512. We reasoned

that a no-duty rule was justified in that case because the plaintiff was a

member of the public at large—not a reasonably foreseeable victim of the

patient’s dangerous and violent tendencies. Id. at 511–12. In this case,

Gottschalk was not merely a member of the public at large. A reasonable

fact finder could find she was among the discrete universe of known

Pomeroy Care Center residents who would foreseeably be exposed to

Cubbage’s predatory behavior.

The majority nonetheless affirms the no-duty rule applied by the

district court in this case because the State obtained a discharge order

from the district court prior to Cubbage’s transfer to the Pomeroy Care

Center. I am not persuaded. The motion for discharge was presented to

the district court in the form of a stipulated proposed disposition.

Although the resulting order discharging Cubbage from CCUSO was
 38

clearly binding on the parties who were before the court stipulating to

the proposed discharge, we should not conclude it absolved the State of a

duty of care to Gottschalk under the extraordinary circumstances

presented here.

We should not view the court order effectuating the stipulated

discharge of Cubbage from CCUSO as an immunity-creating device for

the State. I am not prepared to accept the notion that the district court

for Des Moines County viewed the discharge order as adjudication of the

nature and extent of the risk created by Cubbage upon discharge. The

order was instead a procedural device allowing the parties before the

court to change the location of Cubbage’s placement by agreement. No

one appeared before the court opposing the transfer. No one appeared

voicing caution about the grave risk that would be created by discharging

Cubbage from CCUSO and transferring him to a nursing home.

The administrators of CCUSO wanted to move Cubbage out

because he was resistant to SVP treatment and suffered from dementia;

the Pomeroy Care Center had an interest in filling a bed; and Cubbage

had no reason to oppose the move to a less-restrictive environment in the

nursing home. These are not circumstances engendering a legitimate

policy-based no-duty rule for a class of cases. On the contrary, they are

circumstances crying out for the imposition of a duty of reasonable care

under our tort law. I would therefore reverse the summary judgment and

remand for further proceedings in the district court.

Zager, J., joins this dissent.
 39
#14–1326, Estate of Gottschalk v. Pomeroy Dev., Inc.
ZAGER, Justice (dissenting).

I join the well-reasoned dissent by Justice Hecht. I agree that the

unique facts of this case do not lend themselves to a determination by

means of summary judgment. Rather, I believe there are sufficient

factual issues involved in this case for the State to have assumed a

general, and perhaps a special, duty of care to the plaintiff.

It is important to look at the factual scenario that played out in

this case and compare it to the legislative mandates. Cubbage was

sentenced to several terms of imprisonment. Rather than release

Cubbage from State custody following his latest prison sentence, the

State elected to commence civil commitment proceedings to have

Cubbage adjudicated a sexually violent predator. See Iowa Code

§ 229A.4 (2011). This was based on his lifetime of sexual offenses, many

of them against children. As noted, Cubbage was clearly one of a “small

but extremely dangerous group” of persons whose “likelihood of engaging

in repeat acts of predatory sexual violence is high.” Id. § 229A.1.

Several legislative findings are also significant when discussing the

sexually violent predator (SVP) statutes. First, SVPs are not meant to be

treated under Iowa Code chapter 229. Compare id. §§ 229.1A, .6, with

id. § 229A.1 (“In contrast to persons appropriate for civil commitment

under chapter 229, sexually violent predators generally have antisocial

personality features that are unamenable to existing mental illness

treatment.”). Chapter 229 is intended to provide treatment to persons

with serious mental disorders and then return them to the community.

Id. § 229.15 (outlining procedure for periodic reports of individuals

hospitalized under chapter 229). Second,

[t]he general assembly finds that sexually violent predators’
likelihood of engaging in repeat acts of predatory sexual
 40
violence is high and that the involuntary commitment
procedure under chapter 229 is inadequate to address the
risk these sexually violent predators pose to society.

Id. § 229A.1. Last, there are several other references in the legislative

findings of the SVP statute regarding “public safety concerns” and “the

need to protect the public.” Id.

However, adjudicating an individual as an SVP under our statutes

is not quick or easy, nor should it be. At the beginning of the

proceedings, Cubbage received the right to appointed counsel and the

right to retain experts. Id. § 229A.6(1)–(2). The Iowa Rules of Evidence

applied to the hearing, as well as the Iowa Rules of Civil Procedure. Id.

§ 229A.7(4). Cubbage was entitled to a full trial to either a judge or a

jury. Id. The State had the burden of proving beyond a reasonable

doubt that Cubbage was an SVP. Id. § 229A.7(5). The State felt

compelled to bring this action and was successful in meeting its burden.

Cubbage was “committed to the custody of the director of the department

of human services for control, care, and treatment until such time as

[his] mental abnormality has so changed that [he] is safe to be placed in

a transitional release program or discharged.” Id. § 229A.7(5)(b).

Cubbage was civilly committed to the Civil Commitment Unit for Sex

Offenders (CCUSO) in May 2002.

To say that Cubbage’s progress in treatment at CCUSO as a violent

sexual predator was abysmal is an understatement. It is only necessary

to refer to the most recent annual report for Cubbage prior to his

discharge, dated July 13, 2010, to confirm these facts. Cubbage chose

not to be interviewed for the annual evaluation. Cubbage had not

actively participated in treatment programming since 2005. Cubbage did

not meet the criteria for the transitional release program as (1) there was

no change in his mental abnormality, and (2) he did not meet five of the
 41

ten statutory criteria for transitional release. See id. § 229A.8A(2)–(3).

The psychologist’s evaluation was that Cubbage “continues to display

dynamic risk factors that result in him being likely to engage in

predatory acts constituting sexually violent offenses if discharged.” The

most recent annual report disclosed that on June 10, 2010, and again on

June 29, Cubbage received behavioral incident reports for disrespect and

sexual behavior, with the second incident classified as a “major incident

report.” However, because of a diagnosis of early-onset Alzheimer’s, and

a vague reference to a lack of executive cognitive ability, the State

deemed Cubbage appropriate for unconditional discharge from CCUSO to

the Pomeroy Care Center. See id. § 229A.10 (outlining the procedure for

a petition for discharge from secure confinement).

With this history in mind, I agree with and endorse Justice Hecht’s

duty analysis and would find, at a minimum, that a special relationship

existed between the State and Cubbage to support the imposition of a

duty to warn Gottschalk. It is unnecessary for me to repeat this duty

analysis here. Suffice that I would also reject the no-duty rule applied by

the district court.

What prompts me to write separately is the summary and

perfunctory fashion in which the State orchestrated the discharge of an

obviously dangerous sexual predator from CCUSO and then facilitated

his placement in a nursing home among a highly vulnerable population.

This is troubling to me on many levels, both legally and factually. The

State of Iowa has been responsible for the care, custody, and control of

Cubbage for decades, either in the prison system or based on his

commitment as an SVP. The State expended great time and expense to

civilly commit Cubbage and thereafter to keep him confined. The need

for this commitment clearly continued up to the date of his unconditional
 42

discharge from CCUSO. This commitment was to continue until “[his]

mental abnormality has so changed that [he] is safe to be placed in the

transitional release program or discharged.” Id. § 229A.7(5). As reflected

in his records and evaluations, Cubbage’s mental abnormality had not

changed prior to the time of his unconditional discharge. Likewise, the

latest psychological evaluation of Cubbage resulted in an opinion that

Cubbage “continues to display dynamic risk factors that result in him

being likely to engage in predatory acts constituting sexually violent

offenses if discharged.” This conclusion is clearly supported by the two

very recent incidents of sexual behavior. Under what possible

circumstances would the State ever consider recommending that

Cubbage was suitable for unconditional discharge?

The answer is that in May 2010, discussions began about how the

State could remove Cubbage from his commitment at CCUSO “pending

DHS Director’s approval.” Then, perhaps not surprisingly, the July 2010

annual report concluded that Cubbage “does not currently meet the

definition of a sexually violent predator as described in 229A.” Based on

all the information described above, this conclusion lacks any credibility

in law or fact. But by this time, the decision had apparently been made

to find another placement for Cubbage; the only question was how the

State would accomplish this goal.

Anyone who is familiar with the SVP statutes and our

accompanying caselaw can appreciate just how difficult it is for an

individual to either transition from CCUSO or be discharged. Any

decision for either transition or discharge should be well-informed and

meet the strict standards as provided in the statute. See id. §§ 229A.8A,

.9A, .10. In other words, the discharge of a sexually violent predator

should be tested by the law and the facts, and not as a mere
 43

accommodation to the State which simply no longer wants to incur the

time, expense, or inconvenience that is involved with the care, custody,

and control of this SVP. Of utmost importance, any decision involving

the unconditional discharge of an SVP must involve an analysis of the

effect of the decision on public safety. No critical analysis or testing was

even attempted here. Instead, the motion for discharge was presented to

the district court as a stipulated proposed disposition. There was no

record, no evidence, and no discussion. What is also important to note is

that there are a number of alternatives provided for in the statute that do

not involve the unconditional discharge of a civilly committed SVP. See

id. §§ 229A.8A, .9A. Instead of even considering these alternatives, or

advising the district court of these various placements, the State simply

recommended an unconditional discharge of Cubbage. Then to

compound matters, the State agreed to a long-term mental health

commitment for Cubbage, a placement which is clearly inappropriate for

a person with Cubbage’s background.

With this procedural background, the State now argues it is

insulated from any duty it might have had, and any corresponding

liability, because it no longer has care, custody, and control over

Cubbage. It also relies on the argument that a district court judge

approved the order of discharge for Cubbage and a different district court

judge approved the mental health commitment order for Cubbage. I

cannot agree that the fact that the orders were approved by a district

court judge somehow allows the State to avoid the duty to act reasonably

to protect the vulnerable nursing home residents who would be exposed

to Cubbage as a consequence of the discharge and transfer arrangement.

The State had the care, custody, and control over Cubbage for decades.

When it no longer wanted this responsibility, regardless of the obvious
 44

risks it posed to public safety, it attempted to use the court system to

absolve itself of all further responsibility and liability. This is

unconscionable. Unfortunately, this is not the only context in which the

State attempts to insulate itself from liability when it decides that it no

longer wants to provide for the care, custody, and control over

individuals it has historically assumed responsibility for, and to whom it

now decides it no longer wants this obligation. Our court system has

been used in similar situations involving our mentally ill citizens and our

mental health institutes. While it is clearly within the State’s prerogative

to take such actions as it deems appropriate, it should also understand

that there is a concomitant duty of reasonable care under our tort law.

Likewise, I think it is incumbent upon our judicial officers to more

closely examine scenarios like the facts and circumstances presented

here. I would reverse the district court grant of summary judgment to

the State and remand for further proceedings.

Hecht, J., joins this dissent.