IN THE SUPREME COURT OF IOWA
No. 20–0343
Submitted March 24, 2021—Filed June 30, 2021
THOMAS LUKKEN,
Appellant,
vs.
KORBY L. FLEISCHER, individually and d/b/a MT. CRESCENT SKI
AREA; SAMANTHA FLEISCHER, individually and d/b/a
MT. CRESCENT SKI AREA; MT. CRESCENT SKI AREA, an unknown
business entity; SAFEHOLD SPECIAL RISK, INC., an Illinois
corporation; CHALLENGE QUEST, LLC, an Oklahoma Corporation
d/b/a CHALLENGE QUEST, LLC; and KIRK GREGORY
ENGINEERING, P.C., a Texas Corporation; KG STRUCTURAL
SOLUTIONS, LLC, a Texas Corporation; and ATLAS ENGINEERING,
LLC, a Nebraska Corporation,
Appellees.
Appeal from the Iowa District Court for Pottawattamie County,
James S. Heckerman, Judge.
The plaintiff appeals the district court’s grant of summary judgment
in favor of the defendants relating to claims for injuries suffered in a zip-
lining accident. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
McDermott, J., delivered the opinion of the court, in which
Christensen, C.J., and Waterman, Mansfield, McDonald, and Oxley, JJ.,
joined. Appel, J., filed an opinion concurring specially.
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Matthew A. Lathrop (argued) of Law Office of Mathew A. Lathrop,
Omaha, Nebraska, and Robert M. Livingston of Stuart Tinley Law Firm,
LLP, Council Bluffs, for appellant.
Thomas Henderson (argued) and Peter J. Chalik of Whitfield & Eddy,
P.L.C., Des Moines, for Mt. Crescent appellees.
Joshua S. Weiner (argued) and Robert M. Slovek of Kutak Rock LLP,
Omaha, Nebraska, for appellee Challenge Quest, LLC.
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McDERMOTT, Justice.
Thomas Lukken stepped off an elevated platform and sped down a
zip line at the Mt. Crescent Ski Area. An employee at the end of the zip
line had failed to reset the zip line’s braking system after the previous rider
exited. By the time the employee realized his mistake, it was too late.
Lukken slammed into a wooden pole at the base of the zip line and
fractured his neck. He sued the zip line’s original designer and its owner.
The district court dismissed the claims against the zip line’s designer
primarily based on the fact that the braking system that failed to stop
Lukken had been completely replaced by a different supplier before the
incident. And the district court dismissed the claims against the zip line’s
owner based on a liability waiver that Lukken signed before riding. Lukken
appeals.
I.
Double Diamond, Inc. d/b/a Mt. Crescent Ski Area (Mt. Crescent)
operates a skiing and sledding business in winter months and offers other
outdoor recreational activities, including zip lining, in warmer months.
The zip line begins on a twenty-four-foot-high platform atop the ski hill.
Harnessed riders travel down the zip line reaching speeds of up to forty
miles per hour before landing on a lower thirty-three-foot-high landing
platform at the bottom of the hill. The zip line extends 1576 feet from start
to finish.
In April 2014, Mt. Crescent contracted with Challenge Quest, LLC,
to build and install the zip line. Challenge Quest designed the zip line to
have enough slack so that riders would nearly run out of momentum
before reaching the landing platform. To bring riders nearing the landing
platform to a complete stop, a small device with wheels that rode on top of
the zip line and connected the rider’s harness to the zip line (referred to as
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a “trolley”) made contact with a padded brake block. The brake block
connected to a rope-pulley system. An operator on the landing platform
held onto a rope connected to the pulley and applied manual resistance to
bring riders to a complete stop. This rope-braking feature slowed riders
as the rope ran through the operator’s hands, with operators tightening or
releasing their hold as needed to apply the appropriate amount of friction.
Because slack in the zip line could cause riders to slide back away from
the landing platform once a rider’s forward momentum stopped, the brake
block also featured a capture arm that prevented riders from backsliding.
The operator used the same rope-pulley system to pull stopped riders all
the way onto the landing platform. After an operator unhooked a
completed rider on the landing platform, the operator would use the same
rope-pulley system to manually move the brake block back out for the next
rider.
Challenge Quest completed construction of the zip line in August
2014. It then provided, as contemplated by the parties’ contract, a four
day “site specific high technical training for full time staff,” including
training on the braking system, after which it turned full control of the zip
line over to Mt. Crescent. After the zip line opened to the public,
Mt. Crescent’s operators in several instances failed to sufficiently slow
riders using grip friction on the rope to control the brake block. Riders
arrived at the landing platform at speeds in excess of six miles per hour,
the maximum recommended by a trade association called the Association
for Challenge Course Technology (ACCT), which develops safety standards
for zip line courses. In some cases, these riders collided with the
Mt. Crescent employees engaged in stopping them. A handful of injuries
resulted, the most serious apparently being an injured ankle.
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Mt. Crescent decided to consult with a different contractor about a
different braking system than the original one Challenge Quest had
installed. This new contractor, Sky Line, inspected Mt. Crescent’s zip line
and recommended a “zipSTOP” braking system. Mt. Crescent had initially
considered a zipSTOP braking system as part of the zip line that Challenge
Quest designed but decided against it. Mt. Crescent agreed with Sky Line’s
recommendation and hired Sky Line to install the zipSTOP system on its
existing zip line. Sky Line completed the installation in July 2016.
Mt. Crescent informed Challenge Quest of none of this.
Like the original braking system, the zipSTOP braking system also
uses a brake block to bring riders to a complete stop. But instead of rope
pulleys controlling the brake block using an operator’s hand resistance,
the brake block uses a magnetic-resistance wheel to bring riders to a
complete stop. The brake block automatically moves back to the correct
position on the zip line in preparation for the next rider, but an operator
must manually redeploy it before it will move.
Lukken rode Mt. Crescent’s zip line in October 2016 with the
zipSTOP braking system in place. The Mt. Crescent employee on the
landing platform forgot to redeploy the brake block after the rider ahead of
Lukken finished. Lukken was already whizzing down the zip line toward
the landing platform by the time the operator realized his mistake. The
operator’s tardy redeployment of the zipSTOP braking system didn’t permit
enough time for it to stop Lukken, and he crashed into a wooden pole at
the base of the zip line and suffered a neck fracture.
Before riding on the zip line, Lukken signed a release and waiver-of-
liability agreement in favor of Mt. Crescent. It stated in relevant part:
I am aware and fully understand that these activities
are very dangerous. They involve the risk of damage, serious
injury and death, both to myself and to others.
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I understand that there are many potential causes for
property damage, serious injury and death at Mt Crescent Ski
Area including the negligence of Mt Crescent Ski Area, its
owners, agents, employees, volunteer staff, rescue personnel,
and equipment as well as my own negligence and the
negligence of others.
In consideration of being permitted to participate in the
activities offered at Mt Crescent Ski Area I hereby agree to
release, waive, discharge, and covenant not to sue Mt
Crescent Ski Area, its owners, agents, employees, volunteer
staff, or rescue personnel as well as any equipment
manufacturers and distributors involved with the Mt Crescent
Ski Area facilities from any and all liability from any and all
loss or damage I may have and any claims or demands I may
have on account of injury to my person and property or the
person and property of others, including death, arising out of
or related to the activities offered at Mt Crescent Ski Area
whether caused by the negligence of Mt Crescent Ski Area, its
owners, agents, employees, volunteer staff, rescue personnel,
equipment manufacturers, or distributors or otherwise.
....
In consideration of being permitted to participate in the
activities offered at Mt Crescent Ski Area, I agree that this
Release and Waiver of Liability, Assumption of Risk and
Indemnity Agreement extends to any and all acts of negligence
by Mt Crescent Ski Area, its owners, agents, employees,
volunteer staff, rescue personnel, and equipment
manufacturers, and distributors, including negligent rescue
operations and is intended to be as broad and inclusive as
permitted by Iowa law and that if any portion is held invalid,
it is agreed that the balance shall continue in full legal force
and effect.
He filed suit against Mt. Crescent (and related individuals and
entities alleged to own it) and Challenge Quest (and related entities alleged
to have participated in the zip line’s design and construction), pleading
causes of action for negligence and strict liability, and requesting punitive
damages.
The district court granted summary judgment in favor of Challenge
Quest, holding that it breached no duty to Lukken and that it didn’t cause
Lukken’s injuries. The district court reasoned that Challenge Quest owed
no duty to Lukken because it had completed its work under its contract
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and transferred control of the zip line to Mt. Crescent by the time of the
incident, and, further, that its actions were not the “cause” of Lukken’s
injuries because it didn’t install the allegedly defective braking system in
place when Lukken was injured.
The district court also granted summary judgment in favor of
Mt. Crescent, holding the waiver dispositive of the claims. The district
court reasoned that Iowa courts consistently uphold exculpatory
agreements and that the waiver at issue contained language sufficiently
“clear and unequivocal” to demonstrate that Lukken understood he was
waiving future claims of negligence. The court held that the express
language of waiving “any and all negligence” waived all of Lukken’s
negligence claims, including his claim for gross negligence. The district
court declined to hold the waiver unenforceable based on public-policy
grounds and held that the waiver wasn’t preempted by statute.
Lukken appeals each of the district court’s summary judgment
rulings.
II.
We turn first to Lukken’s claims against Challenge Quest. Lukken
pleaded claims against Challenge Quest under theories of both negligence
and strict liability. Yet his summary judgment and appellate briefing
contain no separate legal arguments distinguishing the two theories. He
cites no products liability law despite the fact that his petition alleges
claims for strict liability based on design defects in the zip line. He instead
focuses solely on traditional negligence principles. We will thus analyze
Challenge Quest’s liability through the lens of a negligence claim.
To maintain a claim for negligence, Lukken must prove that
Challenge Quest owed a duty to protect him from the harm he suffered.
See Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009). Lukken
8
contends that Challenge Quest owed a bevy of duties to Mt. Crescent,
including a duty (1) to design and construct a zip line that complied with
industry standards, (2) to provide Mt. Crescent appropriate instruction on
how to operate the zip line, (3) to address Mt. Crescent’s safety concerns
about the zip line, (4) to ensure that Mt. Crescent had procedures in place
to train new employees, and (5) to address safety issues with Mt. Crescent
arising in future safety inspections. Lukken argues that Challenge Quest
owes each of these duties to Mt. Crescent and, based on the risk of physical
harm to Mt. Crescent’s zip line riders, these duties extend to Lukken as
well.
Whether a defendant owes a duty of care under particular
circumstances is a question of law for the court. Hoyt v. Gutterz Bowl &
Lounge L.L.C., 829 N.W.2d 772, 775 (Iowa 2013). The district court in
granting summary judgment held that Challenge Quest owed Lukken no
duty of care for the injury he sustained. We review the district court’s
holding for correction of legal error. Lewis v. Howard L. Allen Invs., Inc.,
956 N.W.2d 489, 490 (Iowa 2021).
The central issue here is the scope of Challenge Quest’s duty in
regard to the braking system after the braking system had been replaced
without Challenge Quest’s involvement. We have reiterated that, under
the Restatement (Third) of Torts, control remains an important
consideration in whether a duty exists and liability normally follows
control. See McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 371–73
(Iowa 2012). In McCormick v. Nikkel & Associates, Inc., we held as a matter
of law that a subcontractor owed no duty to assure the safety of a jobsite
once it locked up the switchgear and transferred control back to the
contractor. Id. at 373–75. So too here, once Mt. Crescent decided to
replace the braking system, any machine- or human-related flaws in that
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system ceased to be Challenge Quest’s responsibility. Challenge Quest’s
braking system didn’t fail; it no longer existed. Challenge Quest likewise
had no connection to the actions of Mt. Crescent’s employee who failed to
reset the brake in time to stop Lukken. The employee didn’t work for
Mt. Crescent when Challenge Quest conducted its four-day technical
training for Mt. Crescent employees prior to Mt. Crescent opening the
course to the public. Challenge Quest had no role in the employee’s hiring,
supervision, or instruction.
And Challenge Quest neither designed nor constructed the braking
system that the employee failed to reset when Lukken rode the zip line.
By that time, Sky Line’s zipSTOP braking system had replaced Challenge
Quest’s original system. Challenge Quest owed no duty of care to prevent
Mt. Crescent from changing the braking system. Because Challenge Quest
owed no duty of care associated with the zip line’s braking system after its
own braking system had been uninstalled, no cause of action for
negligence exists as a matter of law, and the district court thus properly
granted summary judgment in Challenge Quest’s favor.
Lukken argues more specifically that Challenge Quest should have
incorporated an emergency brake as part of its original braking system.
But this argument fails, too, based on the replacement of the braking
system and Challenge Quest’s lack of any control at that point. When
Mt. Crescent decided to install a different braking system, it became the
responsibility of Mt. Crescent and Sky Line to assure the safety of that
system. Challenge Quest’s original braking system (without an emergency
brake) apparently resulted in some minor mishaps until it was replaced in
July 2016. Sky Line’s replacement braking system (without an emergency
brake) had the potential to result in a more serious accident in the event
of an operator’s error. It would be unfair to make Challenge Quest legally
10
responsible for this replacement system. See Huck v. Wyeth, Inc., 850
N.W.2d 353, 381 (Iowa 2014) (reaffirming the “long-standing” rule that
requires the plaintiff “to prove the defendant manufactured or supplied the
product that caused her injury, and [declining] to extend the duty of
product manufacturers to those injured by use of a competitor’s product”).
In this case, to the extent any product failed, it wasn’t Challenge Quest’s
product. Cf. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 825
(Iowa 2000) (en banc) (“[T]o establish assembler liability, the plaintiff must
show that the assembler actually sold or otherwise placed the defective
product on the market. Baughman[ v. Gen. Motors Corp., 780 F.2d 1131,
1132–33 (4th Cir. 1986)] (refusing to hold truck manufacturer liable for
defective wheel rim that was placed on vehicle after sale and that
manufacturer did not supply); Exxon[ Shipping Co. v. Pac. Res., Inc., 789
F. Supp. 1521, 1522–23, 1527 (D. Haw. 1991)] (refusing to hold designer
of mooring terminal liable for defective replacement chain).”) That Lukken
claims the new, different product was similarly defective does not provide
him a basis to pursue Challenge Quest for a defect in a product that
Lukken never used and that didn’t injure him. See Restatement (Third) of
Torts: Prod. Liab. § 15 cmt. b, illus. 2, at 232 (Am. L. Inst. 1998).
Lukken also contends that Challenge Quest’s zip line design defects
caused riders to reach speeds in excess of ACCT’s standards, which left
the braking system unable to safely stop him. But the record
demonstrates that Sky Line independently examined the existing zip line,
recommended the zipSTOP braking system, and (at Mt. Crescent’s
direction) installed it. As the district court correctly found, the actions of
Sky Line and Mt. Crescent cut off Challenge Quest’s liability. See
McCormick, 819 N.W.2d at 374 (noting that the party in control “is best
positioned to take precautions to identify risks and take measures to
11
improve safety”). In this case, when Mt. Crescent scrapped Challenged
Quest’s original braking system and installed Sky Line’s zipSTOP braking
system, Challenge Quest was relieved of any liability associated with
insufficient stopping capacity or other defects in its original braking
system.
Lukken further claims that Challenge Quest breached a duty to
provide Mt. Crescent information, training, and policies to ensure
Mt. Crescent’s safe ongoing operation of the zip line. Lukken asserts that
had Challenge Quest instructed Mt. Crescent on safety procedures that
included, for instance, operational redundancies or checklists,
Mt. Crescent might have ensured the braking system was properly
deployed and cross-checked before Lukken ever started down the zip line.
But this claimed duty on Challenge Quest fails for reasons inherent in the
different braking systems that were installed. The original braking system
required an employee’s active, manual stopping efforts to ensure riders
stopped at the landing platform. Yet the zipSTOP system stops riders
through an automated brake that requires no similar manual exertion.
Challenge Quest had no reason to provide the type of instruction or
policies that would have caused Mt. Crescent’s employees to remember to
redeploy an automated braking system that, at the time, didn’t exist on
this zip line. Challenge Quest trained Mt. Crescent’s employees on how to
stop a rider using the original manual stopping method; we see no basis
to impose on Challenge Quest some requirement to provide instruction or
procedures on operating a distinct braking system that hadn’t been
installed. On these facts, Challenge Quest had no duty to provide training
or policies on the safe operation of a braking system that relied on a
completely different stopping mechanism and that required completely
different actions by Mt. Crescent’s employees.
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We thus affirm the district court’s grant of summary judgment in
favor of Challenge Quest.
III.
We turn to the dismissal of Lukken’s negligence claim against
Mt. Crescent. The district court found that the waiver Lukken signed
before riding the zip line was “broad in its inclusiveness and contained
clear and unequivocal language sufficient to notify Plaintiff that by signing
the document, he would be waiving all future claims for negligence against
Defendants.” Lukken argues that even if the waiver’s language could be
considered “clear and unequivocal,” Mt. Crescent’s negligence went
beyond ordinary negligence and into the realm of gross negligence. He
argues that the gross negligence alleged in this case involves conduct more
culpable than the inadvertence or inattention of ordinary negligence and
that, as a matter of public policy, Iowa courts should not enforce clauses
that exculpate parties from grossly negligent conduct.
Exculpatory clauses, sometimes referred to as “hold harmless”
clauses, relieve parties from responsibility for the consequences of their
actions. “[W]e have repeatedly held that contracts exempting a party from
its own negligence are enforceable, and are not contrary to public policy.”
Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993). An enforceable waiver
must contain “clear and unequivocal language” notifying a casual reader
that by signing, she agrees to waive all claims for future acts or omissions
of negligence. Sweeney v. City of Bettendorf, 762 N.W.2d 873, 878–79
(Iowa 2009). An intention to absolve a party from all claims of negligence
must be clearly and unequivocally expressed in the waiver. Id. at 878–79;
see also Baker v. Stewarts’ Inc., 433 N.W.2d 706, 709 (Iowa 1988) (stating
that an intent “to absolve the establishment from liability based upon the
13
acts or omissions of its professional staff . . . must be clearly and
unequivocally expressed”).
Exculpatory clauses reside at the intersection of tort law and
contract law. Under tort law, courts generally permit a party to whom a
duty of care is owed to pursue damages against another for acts that
breach that duty if those acts were the factual cause of the harm and
within the other party’s scope of liability. See Thompson, 774 N.W.2d at
837. But under contract law, “parties of full age and competent
understanding must have the greatest freedom of contracting, and
contracts, when entered into freely and voluntarily, must be upheld and
enforced by the courts.” 5 Richard A. Lord, Williston on Contracts § 12:3,
at 862–870 (4th ed. 2009). Not enforcing exculpatory clauses advances
the interests of tort law (deterring unsafe conduct and compensating
accident victims) but abridges parties’ power to contract; enforcing
exculpatory clauses advances the parties’ power to contract but abridges
tort remedies.
Courts attempt to strike a balance by not enforcing exculpatory
contracts that contravene public policy. See Wunschel L. Firm, P.C. v.
Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980). Admittedly, courts have
struggled to articulate a predictable framework for parties to anticipate
which agreements will contravene public policy in a future given case and
which will not. We have stated in general terms that courts should not
enforce a contract that “tends to be injurious to the public or contrary to
the public good.” Walker v. Am. Fam. Mut. Ins., 340 N.W.2d 599, 601 (Iowa
1983). Yet declaring contracts unenforceable as violating public policy “is
a delicate power which ‘should be exercised only in cases free from
doubt.’ ” Wunschel L. Firm, P.C., 291 N.W.2d at 335 (quoting Richmond v.
Dubuque & Sioux City R.R., 26 Iowa 191, 202 (1868)). We will not “curtail
14
the liberty to contract by enabling parties to escape their valid contractual
obligation on the ground of public policy unless the preservation of the
general public welfare imperatively so demands.” Walker, 340 N.W.2d at
601 (quoting Tschirgi v. Merchs. Nat’l Bank of Cedar Rapids, 253 Iowa 682,
690, 113 N.W.2d 226, 231 (1962)); see also Robinson v. Allied Prop. & Cas.
Ins., 816 N.W.2d 398, 408 (Iowa 2012) (“ ‘[T]here is a certain danger in too
freely invalidating private contracts on the basis of public policy.’ . . . To
do so ‘is to mount “a very unruly horse, and when you once get astride it,
you never know where it will carry you.” ’ ” (alteration in original) (first
quoting Skyline Harvestore Sys., Inc. v. Centennial Ins., 331 N.W.2d 106,
109 (Iowa 1983)) (second quoting Grinnell Mut. Reins. v. Jungling, 654
N.W.2d 530, 540 (Iowa 2002))). And yet, in Galloway v. State, we held that
“public policy precludes enforcement of a parent’s preinjury waiver of her
child’s cause of action for [negligently inflicted] injuries” on an educational
field trip. 790 N.W.2d 252, 253, 256, 258 (Iowa 2010). But see Kelly v.
United States, 809 F. Supp. 2d 429, 437 (E.D.N.C. 2011) (anticipating that
the North Carolina Supreme Court would enforce the parent’s liability
waiver for fifteen-year-old’s high school enrichment program and
describing Galloway as an “outlier”).
Lukken argues that we should not enforce an exculpatory clause
against him that purports to release claims of “any and all acts of
negligence” as contrary to public policy to the extent it includes claims of
gross negligence. While we have never provided an all-encompassing
framework for analyzing public-policy exceptions, in Baker v. Stewarts’
Inc., we recited several factors that might be considered to determine
whether a contract implicated a public interest. See 433 N.W.2d at 708.
The district court in this case found that one of these factors—whether
“the party seeking exculpation performs a service of great importance to
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the public which is of practical necessity for at least some members of the
public,” id.—cut sharply against a finding that zip lining implicated a
sufficient public interest to warrant interference with the parties’ contract.
The district court noted that the Iowa Court of Appeals in an unpublished
opinion determined that snow sledding was a “purely recreational activity”
and thus not a service of great importance or necessity to the public to
justify applying the public-policy exception. Lathrop v. Century, Inc.,
No. 01–1058, 2002 WL 31425215, at *3 (Iowa Ct. App. Oct. 30, 2002).
But this focus somewhat misconstrues Lukken’s argument.
Lukken’s focus isn’t on whether Mt. Crescent may enforce an exculpatory
clause for voluntary recreational activities (under Iowa law, it may), but
whether Mt. Crescent may enforce an exculpatory clause that negates
claims for more culpable conduct. Lukken argues that the district court’s
ruling overlooks the differences between “ordinary” negligence and “gross”
negligence, and thus overlooks the public-policy implications associated
with the differences in the culpability of the conduct that he alleges.
In his summary judgment and appeal briefing, Lukken contends
that gross negligence includes “wanton” conduct based on its description
in Iowa Code section 85.20. That statute describes gross negligence as
conduct “amounting to such lack of care as to amount to wanton neglect.”
Iowa Code § 85.20(2) (2018); see also Thompson v. Bohlken, 312 N.W.2d
501, 504 (Iowa 1981) (en banc). Lukken recites cases that define gross
negligence similar to wanton conduct (and wanton conduct’s close sibling,
reckless conduct) as a basis for refusing to enforce contracts that include
exculpatory clauses for gross negligence. Yet Lukken’s argument—that
his gross negligence claim includes wanton or reckless conduct—glosses
over a distinction in our cases between our common law conception of
gross negligence and different statutory renderings of gross negligence.
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“Gross negligence” is not a distinct cause of action under our
common law, but instead is a measure of conduct in a cause of action for
negligence. Unertl v. Bezanson, 414 N.W.2d 321, 326–27 (Iowa 1987) (en
banc). “In this state, as is well known, the actionable character of
negligence is not dependent upon its ‘degree,’ and the ancient
differentiation into ‘gross,’ ‘ordinary,’ and ‘slight’ has come to mean little
more than a matter of comparative emphasis in the discussion of
testimony.” Denny v. Chi., R.I. & P. Ry., 150 Iowa 460, 464–65, 130 N.W.
363, 364 (1911). Under our common law “there are no degrees of care or
of negligence in Iowa,” Tisserat v. Peters, 251 Iowa 250, 252, 99 N.W.2d
924, 925–26 (1959), and we thus do not recognize a tort cause of action
based on “gross” negligence as distinct from “ordinary” negligence.
Hendricks v. Broderick, 284 N.W.2d 209, 214 (Iowa 1979).
Yet analysis of “gross negligence” appears frequently in our cases
interpreting statutes that employ the term. See, e.g., Thompson, 312
N.W.2d at 504 (interpreting the meaning of “gross negligence” in section
85.20); Sechler v. State, 340 N.W.2d 759, 761 (Iowa 1983) (en banc)
(interpreting the meaning of “gross negligence” in section 306.41). In
Thompson v. Bohlken, for instance, we analyzed the term “gross
negligence” in section 85.20, which the statute describes as conduct
“amounting to such lack of care as to amount to wanton neglect.” 312
N.W.2d at 504 (quoting Iowa Code § 85.20 (1977)). We determined that
the term “gross negligence” under this statute included elements requiring
proof of the defendant’s knowledge of the danger, the defendant’s
knowledge that injury is probable (not merely possible) to result from the
danger, and the defendant’s conscious failure to avoid the danger. Id. at
505. These elements generally track the definition of recklessness in the
Restatement (Second) of Torts. See Leonard ex rel. Meyer v. Behrens, 601
17
N.W.2d 76, 80 (Iowa 1999) (per curiam) (relying on the definition of
“recklessness” in the Restatement (Second) of Torts § 500, at 587
(Am. L. Inst. 1965)).
But we have warned that conceptions of “gross negligence” deriving
from statutory uses of that term are not to be applied beyond those
statutes. In Sechler v. State, a case tried before Iowa’s adoption of
comparative negligence, we defined gross negligence for purposes of Iowa
Code section 306.41 (1983) as not to include wanton neglect. 340 N.W.2d
at 761. We later stated that, “[f]ar from creating a new basis of liability,
the ‘gross negligence’ discussed in Thompson was a restriction, not an
expansion, of the scope of negligence suits.” Unertl, 414 N.W.2d at 327.
The notion of gross negligence as including “wanton” conduct under
section 85.20 thus is “a concept limited by its terms to workers’
compensation cases.” Id. at 326–27.
As a result, Lukken’s argument that common law gross negligence
incorporates wanton or reckless conduct based on the description in
section 85.20 doesn’t square with our cases. The district court, reciting
our cases stating that gross negligence is simply another degree of
ordinary negligence, determined that the exculpatory clause releasing “any
and all negligence” likewise released Lukken’s gross negligence claims, and
thus dismissed Lukken’s claims against Mt. Crescent.
Lukken’s confusion about how reckless or wanton conduct falls
within the scope of gross negligence doesn’t end the analysis in this case,
however, because Lukken in his petition alleged that Mt. Crescent engaged
in not only negligent conduct but also willful, wanton, and reckless
conduct. We have long recognized separate grounds for tort liability based
on these more culpable types of conduct. See, e.g., Leonard ex rel. Meyer,
601 N.W.2d at 80 (recognizing a cause of action in tort for reckless
18
disregard for safety); see also Hendricks, 284 N.W.2d at 214 (analyzing
alleged reckless conduct separate from negligence).
Both the Restatements of Contracts and Torts disfavor exculpatory
clauses that attempt to limit liability for harm caused recklessly or
intentionally. Restatement (Second) of Contracts § 195(1), at 65
(Am. L. Inst. 1981) (“A term exempting a party from tort liability for harm
caused intentionally or recklessly is unenforceable on grounds of public
policy.”); Restatement (Third) of Torts: Apportionment of Liab. § 2 cmt. d,
at 20 (Am. L. Inst. 2000) (stating that generally “contracts absolving a
party from intentional or reckless conduct are disfavored”).
The Restatement (Second) of Torts notes that “[i]n the construction
of statutes which specifically refer to gross negligence, that phrase is
sometimes construed as equivalent to reckless disregard” of the interest of
others. Restatement (Second) of Torts § 282 cmt. e, special n. 5, at 11.
And so it has been in Iowa. Wanton conduct “involves the combination of
attitudes: a realization of imminent danger, coupled with a reckless
disregard or lack of concern for the probable consequences of the act.”
Thompson, 312 N.W.2d at 505. While willfulness is “characterized by
intent to injure,” wantonness is characterized by “indifference as to
whether the act will injure another.” Id. (citing 57 Am. Jur. 2d Negligence
§ 102, at 452–53 (1971)).
Many courts have considered in the same classification the concepts
of wantonness, recklessness, and willfulness in declaring liability waivers
unenforceable to the extent they seek to release such conduct. See, e.g.,
Wolfgang v. Mid-Am. Motorsports, Inc., 898 F. Supp. 783, 788 (D. Kan.
1995) (recognizing that under Kansas common law “any attempt to limit
liability for gross negligence or willful and wanton conduct is
unenforceable”); Moore v. Waller, 930 A.2d 176, 179 (D.C. 2007)
19
(recognizing that courts generally don’t enforce exculpatory clauses
limiting a party’s liability for “gross negligence, recklessness or intentional
torts” (quoting Carleton v. Winter, 901 A.2d 174, 181 (D.C. 2006))); Jones
v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (en banc) (holding that “in no
event will such an [exculpatory] agreement provide a shield against a claim
for willful and wanton negligence”); Brady v. Glosson, 74 S.E.2d 253, 255–
56 (Ga. Ct. App. 1953) (holding an exculpatory clause unenforceable to
relieve liability for willful or wanton conduct); Wolf v. Ford, 644 A.2d 522,
525 (Md. 1994) (stating that “a party will not be permitted to excuse its
liability for . . . the more extreme forms of negligence, i.e., reckless, wanton,
or gross”); Anderson v. McOskar Enters., Inc., 712 N.W.2d 796, 801 (Minn.
Ct. App. 2006) (stating that “any ‘term’ in a contract which attempts to
exempt a party from liability for gross negligence or wanton conduct is
unenforceable” (quoting Wolfgang, 898 F. Supp. at 788)); New Light Co. v.
Wells Fargo Alarm Servs., 525 N.W.2d 25, 30 (Neb. 1994) (holding that
public policy prevents parties from limiting damages for “gross negligence
or willful and wanton misconduct”). We conclude that, consistent with the
great weight of authority, exculpatory clauses purporting to negate liability
for acts that are wantonly or recklessly committed generally violate public
policy.
We therefore hold that the contractual waiver limiting Mt. Crescent’s
liability is unenforceable to the extent it purports to eliminate liability for
the willful, wanton, or reckless conduct that Lukken has alleged. To the
extent Lukken’s claims against Mt. Crescent involve culpability that
constitutes only negligent conduct (regardless of any degree of negligence),
his claims fail as a matter of law based on the liability waiver. Yet Lukken
maintains the opportunity, notwithstanding the liability waiver, to pursue
against Mt. Crescent his claims of willful, wanton, or reckless conduct.
20
We reverse the district court’s summary judgment ruling as to
Mt. Crescent and, in light of this determination, need not address the
plaintiff’s other arguments concerning the claims against Mt. Crescent in
this appeal. We remand for further proceedings consistent with this
opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
All justices concur except Appel, J., who concurs specially.
21
#20–0343, Lukken v. Fleischer
APPEL, Justice (concurring specially).
I cannot join the majority’s overbroad duty analysis suggesting that
because of lack of control, duty invariably evaporates. If the zip line was
negligently constructed by Challenge Quest and a patron was injured as a
result of the negligent design, a potential claim by the injured patron would
not be defeated by a lack of duty. As noted by comment g of the
Restatement (Third), section 49, a contractor no longer in possession “is
subject to a duty of reasonable care as provided in § 7 for any risk created
by the contractor in the course of its work.” 2 Restatement (Third) of Torts:
Liab. for Physical and Emotional Harm § 49 cmt. g, at 235 (Am. L. Inst.
2012). See generally McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368,
377–83 (Iowa 2012) (Hecht, J., concurring in part and dissenting in part)
(describing the duty of care for contractors after relinquishing possession
of land). The analysis after a contractor is no longer in control of the
premises concerns the fact-based questions of whether the risk was within
the scope of liability and causation, not the legal question of duty. See
generally Morris v. Legends Fieldhouse Bar and Grill, LLC, 958 N.W.2d 817,
828–42 (Iowa 2021) (Appel, J., dissenting) (describing the proper analysis
in most negligence cases rests with the fact questions of breach of duty
and causation).
Generally, of course, these fact questions are not amenable to
summary judgment. See Thompson v. Kaczinski, 774 N.W.2d 829, 832
(Iowa 2009). But here, causation is not present with respect to the design
of the braking system itself as the allegedly defective Challenge Quest
system was entirely replaced by another independent vendor. To the
extent there was an equipment defect in the braking system (i.e. not having
an emergency brake), it was the defect in the new braking system, and not
22
the original braking system, that caused the accident. And, the plaintiff
showed no linkage between the unfortunate accident and the nebulous
and allegedly insufficient training and safety policies, or the accident and
the newly installed braking system (with a fundamentally different design
from the original Challenge Quest system). So I concur in the district
court’s conclusion that any claim against Challenge Quest fails. But this
is an oddball case tightly controlled by its facts that should not be decided
based on the legal principles of duty.
I concur in the majority’s holding with respect to the waiver of claims
sounding in gross negligence.