THE ESTATE OF SUSAN FARRELL, by its administrator, JESSE FARRELL, and as Representative for the claims of JESSE FARRELL, individually, JESSE FARRELL, as next friend of R.F., a minor, PEGGY MASCHKE, individually, and STEPHEN MICHALSKI, individually v. STATE OF IOWA CITY OF WAUKEE CITY OF WEST DES MOINES, IOWA PETERSON CONTRACTORS, INC. ROADSAFE TRAFFIC SYSTEMS, INC. VOLTMER ELECTRIC, INC. PAR ELECTRICAL CONTRACTORS, INC., MIDAMERICAN ENERGY COMPANY and, KIRKHAM, MICHAEL & ASSOCIATES, INC.
IN THE COURT OF APPEALS OF IOWA
No. 20-1037
Filed November 23, 2021
THE ESTATE OF SUSAN FARRELL, by its administrator, JESSE FARRELL,
and as Representative for the claims of JESSE FARRELL, individually,
JESSE FARRELL, as next friend of R.F., a minor, PEGGY MASCHKE,
individually, and STEPHEN MICHALSKI, individually,
Plaintiff-Appellees,
vs.
STATE OF IOWA; CITY OF WAUKEE; CITY OF WEST DES MOINES, IOWA;
PETERSON CONTRACTORS, INC.; ROADSAFE TRAFFIC SYSTEMS, INC.;
VOLTMER ELECTRIC, INC.; PAR ELECTRICAL CONTRACTORS, INC.,
MIDAMERICAN ENERGY COMPANY; and, KIRKHAM, MICHAEL &
ASSOCIATES, INC.,
Defendant-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.
In this interlocutory appeal, the governmental parties seek reversal of the
district court’s denial of their motion for judgment on the pleadings. REVERSED
AND REMANDED.
Robert M. Livingston and Kristopher K. Madsen of Stuart Tinley Law Firm,
LLP, Council Bluffs, for appellants State of Iowa and West Des Moines, Iowa.
Apryl M. DeLange, Alex E. Grasso, and Jessica A. Eglseder of Hopkins &
Huebner, P.C., Des Moines, for appellant City of Waukee, Iowa.
Stephen D. Marso, Zachary J. Hermsen, Bryn E. Hazelwonder, and James
E. Andersen of Whitfield & Eddy, P.L.C., Des Moines, for appellee.
2
Considered by Tabor, P.J., Greer, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
3
GREER, Judge.
Pointing to established precedent over the public-duty doctrine,1 the State
of Iowa and the cities of West Des Moines and Waukee (the Governmental Parties)
theorize that the result of this case is exactly what happens when “creative plaintiffs
characterize nonfeasance as misfeasance . . . to create a false duty that otherwise
would be precluded by the public-duty doctrine.” They ask that we take that “gray
area” and make it clear by dismissing the suit against them. In this interlocutory
appeal we must determine if the Governmental Parties’ motion for a judgment on
the pleadings should have been granted. Taking the facts alleged as true, the
district court denied the motions finding that at this stage, the Farrell family2 is
entitled to develop if the Governmental Parties engaged in affirmative acts of
negligence or if the egregious conduct exception to the public-duty doctrine
applies.3
Factual Background.
A motor vehicle collision occurred in the early morning hours of March 26,
2016. Tragically, an intoxicated driver, Benjamin Beary, drove on the wrong side
of Interstate 80 (I-80) head-on into a vehicle in which Des Moines police officer
1 The basis of the public-duty doctrine is that “a duty [owed by the government] to
all is a duty to none.” Breese v. City of Burlington, 945 N.W.2d 12, 18 (Iowa 2020);
but see Fulps v. City of Urbandale, 956 N.W.2d 469, 473 (Iowa 2021) (“But the
colloquialism does not get to the heart of the doctrine and may suggest a broader
scope to the doctrine than our cases indicate it actually has.”). The doctrine
precludes liability to individuals if the breach of a duty the State owes is to the
public at large. Raas v. State, 729 N.W.2d 444, 448 (Iowa 2007).
2 We refer to all of the plaintiffs as “Farrell family.”
3 The Farrell family did not address the egregious conduct exception in their appeal
brief, so that issue is waived. See Iowa R. App. P. 6.903(2)(g)(3).
4
Susan Farrell was riding.4 Both Beary and Farrell perished in the collision.5 After
an extensive investigation, law enforcement experts determined that Beary
entered I-80 at the Grand Prairie Parkway Interchange.6 In their petition filed
against the State of Iowa and cities of West Des Moines and Waukee,7 the Farrell
family alleged that the Grand Prairie Parkway Interchange was unsafely designed
and constructed. They allege that in 2005 the cities contracted with the Iowa
Department of Transportation (DOT) to design this Interchange. The design
employed a diverging-diamond interchange that requires drivers to drive on the left
side of oncoming traffic for some distance. The Farrell family contend that this
design creates a confusing experience for drivers unfamiliar with the area.
According to the petition, complaints were voiced and several improvements and
changes occurred over the years, but the Interchange remained open to motorists.
It was after this Interchange and on I-80 where Beary and Farrell collided. The
specific claims asserted against the Governmental Parties involve common law
negligence, nuisance, and premises liability.
4 At impact, it was estimated that Beary was traveling 102.91 miles per hour in the
wrong direction on I-80. At that time, he also had a blood alcohol concentration of
.223 and tested positive for marijuana.
5 At the time of the collision, Farrell was on duty transporting a prisoner to another
county along with another officer. All other occupants of the patrol car were killed
in the collision as well.
6 The “Interchange” is located at I-80 and Alice’s Road between Waukee and West
Des Moines.
7 The private contractors involved in the construction of the Interchange were also
named as parties to the lawsuit, but they are not involved in the interlocutory appeal
issues.
5
To address the allegations, the Governmental Parties answered but then
moved for judgment on the pleadings under Iowa Rule of Civil Procedure 1.954,8
arguing the public-duty doctrine bars all of the Farrell family’s claims. The district
court denied the motion “at this stage” noting the petition alleged the Governmental
Parties committed affirmative acts of negligence, including egregious conduct.
Because of these allegations, the district court concluded it could not find the
Governmental Parties were entitled to a judgment in their favor. The
Governmental Parties appeal from that ruling.
Standard of Review.
We review a district court’s ruling on a motion for judgment on the pleadings
for correction of errors at law. See Hussemann ex rel. Ritter v. Hussemann, 847
N.W.2d 219, 222 (Iowa 2014). To start, we assume the truth of the facts found in
the pleadings. See Griffioen v. Cedar Rapids & Iowa City Ry. Co., 914 N.W.2d
273, 280 (Iowa 2018). Then, the “district court should only grant the motion if the
pleadings, taken alone, entitle a party to judgment.” Meinders v. Dunkerton Cmty.
Sch. Dist., 645 N.W.2d 632, 633 (Iowa 2002). The focus is on whether there is a
right to recovery under the state of facts as presented. Stanton, 420 N.W.2d at
482. “The proper function of a motion for judgment on the pleadings is simply to
test the sufficiency of the pleadings to present an appropriate issue for trial.” Id.
8 The rule provides: “After the pleadings a party may move for judgment on the
pleadings.” Iowa R. Civ. P. 1.954. The rule allows parties an early decision on
points of law in the pleadings. See Stanton v. City of Des Moines, 420 N.W.2d
480, 483 (Iowa 1988).
6
Application of the Public-Duty Doctrine.
The progress of this case turns on whether the public-duty doctrine applies.
We have a playbook for that inquiry. In several recent cases, our supreme court
tackled the doctrine and refined the steps for our analysis. See Fulps, 956 N.W.2d
at 469; Breese, 945 N.W.2d at 12; Johnson v. Humboldt Cnty., 913 N.W.2d 256
(Iowa 2018).9 Similar to the Fulps case, we address the arguments at this
preliminary stage of the proceedings but look to the allegations of the petition and
assume they are true.10 956 N.W.2d at 470. With that being said, we are asked
to apply the public-duty doctrine to address the challenge that the doctrine
precludes tort claims by these individuals against the government. See Johnson,
913 N.W.2d at 258–62 (holding the public-duty doctrine barred a claim against the
county by the injured passenger after a driver fell asleep, drove off a county road
and into a ditch, and struck a privately owned concrete embankment). In Johnson,
the county was sued for failure to cause the removal of the embankment from the
right of way. Id. at 259–60. Thus, the public-duty doctrine has applied in cases
involving a duty the state owes to maintain safe public roadways because it is a
duty the state “owes to the public at large.” Id. at 261.
9 We note the district court did not have the benefit of Fulps. Because Fulps was
decided after the briefing here, the parties asked to provide supplemental briefing,
which was very helpful to our effort.
10 We assume for purposes of this opinion that the Farrell family was correct in
characterizing the Governmental Parties as being “responsible” for the design,
construction, inspection, development, maintenance, and repair of the Interchange
project, as alleged in their petition.
7
Does the public-duty doctrine apply here?
There is a fundamental difference of opinion between these parties about
the approach required to answer this question. The Governmental Parties argue
that the public-duty doctrine bars all of the Farrell family’s claims after we answer
the preliminary question—what instrumentality caused the injury (“instrumentality
test”)? Because Farrell was injured because of the government owned and
designed “diverging-diamond interchange” while in the line of duty transporting a
prisoner, the Farrell family asserts the public-duty doctrine cannot apply. They
advocate the first step requires a “misfeasance/nonfeasance” analysis.
As Fulps confirmed, the public-duty doctrine “comes into play only when
there is a confluence of two factors.” 956 N.W.2d at 473.
First, the injury to the plaintiff was directly caused or inflicted by a
third party or other independent force. Second, the plaintiff alleges
a governmental entity or actor breached a uniquely governmental
duty, usually, but not always, imposed by statute, rule, or ordinance
to protect the plaintiff from the third party or other independent force.
Id. at 473–74. If the answers to these questions are yes, then the public-duty
doctrine applies. But, even so, if there exists a special relationship between the
governmental entity and the injured party, the public-duty doctrine is negated. See
id. at 474.
Here the instrumentality starts and ends with an intoxicated Beary driving
on the wrong side of the road into Farrell’s vehicle, ultimately killing her. Unlike
Breese, where a party was injured on the city bike path with no other
instrumentality involved apart from the city’s negligence with respect to its bike
path, third-party Beary’s behavior caused the death of Farrell. 945 N.W.2d at 21.
8
Likewise, in Fulps, the plaintiff was injured due to the condition of the city-owned
sidewalk. 956 N.W.2d at 470–71.
Then, as to the second question, is the construction of safe roadways a
“uniquely governmental duty . . . to protect [Farrell] from the third party or other
independent force,” we again look to our case law precedent. In instances
involving the public roadways, the state’s safety-related duties are owed to the
general public. See Johnson, 913 N.W.2d at 261 (confirming that public-duty
doctrine applies even when highway safety is involved as the duty to remove
obstructions from a right-of-way corridor adjacent to the highway is a duty owed to
all users of the public road); see also Estate of McFarlin v. State, 881 N.W.2d 51,
58–63 (Iowa 2016) (holding the State’s safety-related duties at the public lake open
to everyone were owed to the general public and thus, “there is no liability to an
individual member of that group”).
Yet, the Farrell family argues the roadway design directly caused the
accident. They contend the Governmental Parties should have protected Farrell
from Beary’s actions by designing and constructing a safe Interchange, which they
allege did not happen here. Fulps did not discard the public-duty doctrine, but
instead narrowed the situations where it still would apply.
The public-duty doctrine is properly understood as a limit on
suing a governmental entity for not protecting the public from harm
caused by the activities of a third party. Those third parties have
included the visually impaired driver in Kolbe [v. State, 625 N.W.2d
721 (Iowa 2001)], the inmates after they got away from the prison in
Raas, the dredge operator in Estate of McFarlin, the private property
owner who put up the concrete embankment in Johnson, and the
shooter in Sankey [v. Richenberger, 456 N.W.2d 206 (Iowa 1990)].
See Breese, 945 N.W.2d at 21 (“What is clear is that we have
generally applied the public-duty doctrine when the allegation is a
government failure to adequately enforce criminal or regulatory laws
9
for the benefit of the general public, as in Raas, Kolbe, and Sankey,
or a government failure to protect the general public from somebody
else’s instrumentality, as in Johnson and Estate of McFarlin.”).
Fulps, 956 N.W.2d at 475 (emphasis added).
The Farrell family posits that the nonfeasance/misfeasance distinction
defines the application of the public-duty doctrine and we should not just simply
apply the Governmental Parties’ “instrumentality of harm” test. Characterizing the
road construction as an affirmative act performed negligently, they attempt to hold
the Governmental Parties “liable for their own property and work . . . on the
Interchange.” Fulps, 956 N.W.2d at 474–75; accord Fulps, 956 N.W.2d at 470
(finding in the context of a “defectively constructed or poorly maintained sidewalk[]”
the “governmental entity is simply being held legally responsible for its own
property and work”). Because they label the Governmental Parties’ actions as
“misfeasance,” they urge the doctrine is inapplicable. “Misfeasance” in the context
of the public-duty doctrine is when the governmental unit “negligently acts and
causes harm.” Breese, 945 N.W.2d at 20. And in Johnson, the supreme court
confirmed, “This does not mean the same no-duty rule would protect that
[governmental] entity when it affirmatively acts and does so negligently.” 913
N.W.2d at 267 (citing with approval Skiff v. State, 479 N.Y.S.2d 946, 951 (N.Y. Ct.
Cl. 1984), which found “the state could be liable when a vehicle left a state road
and traveled along a drainage ditch into an earthen headwall where the ditch was
‘created by the State’ and ‘constituted a trap or snare’”). The Farrell family labels
the affirmative act of constructing the “first-of-its-kind” diverging-diamond
Interchange without the proper safety protections as the misfeasance to be
considered. Yet, “the term ‘nonfeasance’ refers to a failure to discharge a
10
governmental duty for the benefit of the public—typically, ‘a government failure to
adequately enforce criminal or regulatory laws for the benefit of the general
public . . . or a government failure to protect the general public from somebody
else’s instrumentality.’” Fulps, 956 N.W.2d at 475–76 (quoting Breese, 945
N.W.2d at 21). Recent cases applying the public-duty doctrine involved a third-
party instrumentality or, as here, failure to address a third-party hazard. Compare
McFarlin, 881 N.W.2d at 64 (State failed to protect party from dredge pipe installed
by third-party contractor on State property) and Johnson, 913 N.W.2d at 261–62
(State failed to protect driver from a concrete embankment in a State right of way
that was installed by property owner), with Breese, 945 N.W.2d at 21 (pedestrian
injuries caused by the sidewalk condition).
The path the district court took when it denied the motion for judgment on
the pleadings was similar to the analysis offered by the Farrell family. The district
court noted the Farrell family alleged the Governmental Parties engaged in
“affirmative acts of negligence” and raised conduct that was “grossly negligent in
certain particulars.” Even so, the petition frames the failure of the Governmental
Parties as neglecting to protect a member of the general public from a third-party’s
instrumentality of harm because of the Governmental Parties’ design and
construction of the Interchange and the installation of safety markings and signage.
Still, “the public duty rule asks whether there was any enforceable duty to the
plaintiff in the first place.” Raas, 729 N.W.2d at 448 (citation omitted). Because
the public-duty doctrine hinges on a no-duty determination, the legal question of
its application should be based on “articulated policies or principles that justify
exempting actor from liability” and should not “depend on foreseeability of harm
11
based on the specific facts of a case.” See Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 7 cmts. i, j (Am. Law Inst. 2010); cf. Thompson v.
Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009) (“A goal of the Restatement (Third)
was to clear away prior confusion between the duty determination and the
negligence determination.”). Here, the Farrell family’s complaints depend upon a
foreseeability determination that the design of the Interchange lead to the collision
with the drunk driver. That exercise cannot be utilized in a no-duty determination,
thus the instrumentality of harm analysis is properly employed.
To recap, the facts, as alleged in the petition, support the Fulps confluence
of factors that triggers the public-duty doctrine. At the end of the day, the
allegations in the petition center on the “government failure to protect the general
public from somebody else’s instrumentality.” Breese, 945 N.W.2d at 21. We find
the doctrine applies. We next look to the exceptions the Farrell family asks us to
invoke.
Is there a special-relationship exception to the public-duty doctrine because
Farrell was a police officer?
Once we hold that the public-duty doctrine applies, we then and only then
inquire if a special relationship between Farrell and the Governmental Parties
exists such that there is an exception to the general rule that public duties owed to
the public at large may not provide a basis for liability. See Cope v. Utah Valley
State Coll., 342 P.3d 243, 253 (Utah 2014) (mentioned in Breese, 945 N.W.2d at
20–21). The Farrell family argues Farrell’s use of the roadway as a law
enforcement officer removed her from the category of “public-at-large.”
12
The district court found no special relationship existed and that, even as a
police officer, Farrell was owed no particular duty by the Governmental Parties
separate from that of the public at large. Under the Farrell family’s common law
claim of negligence, Farrell had to have membership in a special, identifiable group
for whose benefit statutes were enacted—none apply here. See Kolbe, 625
N.W.2d at 729–30. But, the duties ascribed to the government in the petition—
constructing safe roads—are for all roadway users and are not specific to the use
of only Farrell, even in her role as a law enforcement officer. Our roadways are
not constructed as a special benefit for law enforcement officers and thus, they do
not operate vehicles on them with any special status over and above the general
public. We look to the duty imposed and here, the duty is to all users of the
roadway including all people in all occupations—if the duty were to a specific sub-
set of the population, then a special relationship might exist. “Only when the duty
is narrowed to the injured victim or a prescribed class of persons does a tort duty
exist.” Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 7
reporter’s note cmt. g, at 93–94 (Am. L. Inst. 2010). Motorists are “a general class
that is not afforded a special relationship with the State.” Johnson, 913 N.W.2d at
260; see also McFarlin, 881 N.W.2d at 61 (applying the public-duty doctrine
involving a boating accident on a public lake because “[b]oaters . . . , like motorists
driving on Iowa roadways, are members of the general public . . . for purposes of
the public-duty doctrine”). Under the public-duty doctrine, a duty owed to the public
generally does not allow liability for the benefit of an individual of that same group.
Johnson, 913 N.W.2d at 260. Thus, we find this exception cannot apply under
these facts to avoid the application of the public-duty doctrine.
13
Do these governmental actions invoke the exception to the public-duty
doctrine for public reliance on government carrying out actions in a proper
manner?
Here, the Farrell family illustrates their position with this scenario:
An example of conduct that induces reliance is the case of a city that
provides crossing guards for children walking to school. If such
conduct induces parents to rely on such guards, the city owes a duty
of reasonable care to continue the guards and is consequently
subject to liability for the death of a child in an unprotected crossing
when it unilaterally withdraws guards without notice.
Dobbs, Hayden & Bublick, The Law of Torts § 346 (2d ed. 2021). The family
argues the Governmental Parties pushed the new design as “a particularly safe
interchange design,” thereby creating reliance on the public that safety protocol
and contractually required safety features were in place. We are directed to other
jurisdictions to find the required showing for such an exception. The district court
found no Iowa authority for a public reliance exception to the public-duty doctrine,
nor do we. In Kent v. City of Columbia Falls, 350 P.3d 9, 14 (Mont. 2015), the
Montana Supreme Court held that for application of the public reliance exception,
a party must show: (1) direct contact between the public official and plaintiff, (2) the
public official provided express assurance in response to a specific inquiry by
plaintiff, and (3) the plaintiff was justified in reliance upon the public official
representations. The Farrell family acknowledges this exception theory is based
on facts asserted that are outside the confines of the petition. We agree and find
that, even so, the facts pled do not support consideration of this exception.
Application of the Iowa Tort Claims Act (ITCA) and the Municipal Torts Claim
Act (MTCA).
The Farrell family invites us to rule that the enactment of ITCA and MTCA
requires we abandon the public-duty doctrine and that those acts operate to make
14
the State and its cities liable for their torts to the same extent as private individuals.
See Iowa Code §§ 669.4(2), (3), 670.2(1) (2019); see also Fulps, 956 N.W.2d at
476 (Appel, J., concurring) (“I again express my view . . . that the public-duty
doctrine is simply a version of sovereign immunity and that the legislature has dealt
with the issue through enactment of the [ITCA] and the [MTCA].”). Still, this is not
the first time that this call has been made. See Raas, 729 N.W.2d at 449
(“Although . . . other jurisdictions have held their tort claims statutes to have
abrogated the public-duty doctrine in those jurisdictions, we conclude that both
[ITCA and the public-duty doctrine] are alive and well in Iowa.”). And the most
recent case addressing the doctrine, Fulps, does not take that path, so neither
shall we. “[W]e are not at liberty to overturn precedent of our supreme court.” See
Figley v. W.S. Indus., 801 N.W.2d 602, 608 (Iowa Ct. App. 2011). To put it simply,
the public-duty doctrine is still “alive and well in Iowa.” See Johnson, 913 N.W.2d
at 264 (quoting Raas, 729 N.W.2d at 449).
Conclusion.
Finding the public-duty doctrine applies to the claims against the
Governmental Parties on all claims, we reverse the district court and remand for
entry of judgment in favor of all Governmental Parties. See id. at 266 (noting the
public-duty doctrine operated to prohibit claims of negligence, premises liability,
and nuisance—“‘[n]o liability’ includes these other tort claims”).
REVERSED AND REMANDED.