Wilson v. Nepstad

• Decision Date: 25 July 1979
• Docket Number: Nos. 61537-61541,s. 61537-61541
• Citation: 282 N.W.2d 664
• Parties: Dorothy J. WILSON, Individually and as Administratrix of the Estates of Barbara Gill and Shawn Gill, Appellant, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee. Janine Kay HARRIS, Individually and as Mother and Next Friend of Gary Dean Simpson, a Minor, Appellant, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee. Theodore Wayne OWENS, Individually and as Administrator of the Estates of Sharion Louise Owens and Christopher Wayne Owens, Appellants, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee. Turrill GUYETTE and Mary Lou Guyette, Individually, and Mary Lou Guyette as Mother and Next Friend of Dawn Guyette, a Minor, Appellants, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee. Robert D. LOMAX, Appellant, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 664

282 N.W.2d 664

Dorothy J. WILSON, Individually and as Administratrix of the Estates of Barbara Gill and Shawn Gill, Appellant, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee.

Janine Kay HARRIS, Individually and as Mother and Next Friend of Gary Dean Simpson, a Minor, Appellant, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee.

Theodore Wayne OWENS, Individually and as Administrator of the Estates of Sharion Louise Owens and Christopher Wayne Owens, Appellants, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee.

Turrill GUYETTE and Mary Lou Guyette, Individually, and Mary Lou Guyette as Mother and Next Friend of Dawn Guyette, a Minor, Appellants, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee.

Robert D. LOMAX, Appellant, v. Gregory L. NEPSTAD and Donna J. Nepstad, Individuals, Defendants, and the City of Des Moines, Iowa, Appellee.

Nos. 61537-61541.

Supreme Court of Iowa.

July 25, 1979.

Thomas H. Mohr of Roehrick & Mohr, and James P. Piazza, Des Moines, for appellants.

Terrence A. Hopkins of Hopkins & Huebner, Des Moines, for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

These five cases, consolidated in district court for submission of motions and in this court for purposes of appeal, involve deaths and injuries resulting from a September 27, 1975, apartment building fire in Des Moines. Plaintiffs sued Gregory L. and Donna J. Nepstad, owners of the building, and the City of Des Moines.

Plaintiffs alleged statutes and ordinances relating to building codes, occupancy permits, and fire regulations required the city to perform inspections, issue certificates and permits for apartment buildings, and compel compliance. The petitions asserted the city was negligent in various ways in executing these provisions as to this building. Plaintiffs alleged the city inspected it in a negligent manner in February of 1975 and issued an inspection certificate "which impliedly warranted the premises to be safe for the purposes of human habitation." Plaintiffs ultimately alleged that as a result of either the city's negligent conduct or its breach of warranty the victims were killed or injured. The victims were alleged to be residents or guests in the building.

The city filed motions to dismiss in four cases and motion for judgment on the pleadings in the fifth, contending it had no duty of care toward the fire victims. Trial court sustained these motions and plaintiffs timely appealed. We reverse and remand.

I. While the issue has not been raised we have examined the question whether trial court's dismissals as to the city are appealable final judgments.

Although disposition of part of a petition is interlocutory, Shoemaker v. City of Muscatine, 275 N.W.2d 206, 208 (Iowa 1979), disposition of all causes of action against one or more defendants is final and appealable if those causes are "separable by some distinct line of demarcation" from the causes pled against the remaining defendants in the same petition. McGuire v. City of Cedar Rapids, 189 N.W.2d 592, 596-97 (Iowa 1971).

In these petitions the bases of liability asserted against the city are not dependent upon or intertwined with the bases of liability asserted against the Nepstads. See Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299, 303 (Iowa 1975); Lunday v. Vogelmann, 213 N.W.2d 904, 906 (Iowa 1973).

We find the dismissals as to the city are appealable. We have jurisdiction to reach the merits of these appeals.

II. Thus we reach the issue whether under Iowa law the city can be held liable for negligent inspections conducted pursuant to state statutes and city ordinances regarding fire safety in apartment buildings.

Plaintiffs do not pursue the breach of warranty theory. The city apparently is willing to treat the motion for judgment on the pleadings in the same manner as the motions to dismiss in the other four cases. See Iowa R. Civ.P. 222.

A. For the purposes of these appeals, therefore, allegations of plaintiffs' petitions are accepted as true. Citizens for Washington Square v. City of Davenport, 277 N.W.2d 882, 883-84 (Iowa 1979). These allegations are construed in the light most favorable to plaintiffs, with all doubts resolved for their benefit and all favorable inferences accepted. Id.; Weber v. Madison, 251 N.W.2d 523, 525 (Iowa 1977); Rick v. Boegel, 205 N.W.2d 713, 715 (Iowa 1973). Accordingly, we assume the city had certain statutory duties to inspect this apartment building and was negligent in its inspections, which proximately caused the deaths and injuries to the victims.

B. Plaintiffs' contention the city committed a tort is two-pronged. They alternatively posit liability on (1) a breach of the common-law duty of reasonable care, and (2) breach of various statutory duties relating to building and fire safety inspection. The second ground is dispositive for purposes of this appeal.

A prerequisite to any negligence action is a duty or obligation owed by the actor to the victim. Jahnke v. Incorporated City of Des Moines, 191 N.W.2d 780, 783 (Iowa 1971); W. Prosser, Handbook of the Law of Torts §§ 30, at 143, 53, at 324 (4th ed. 1971).

Duty can be created by statute if the legislature purposed or intended to protect a class of persons to which the victim belongs against a particular harm which the victim has suffered. Koll v. Manatt's Transportation Co., 253 N.W.2d 265, 270 (Iowa 1977) (quoting Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277 (1926)); Crane v. Cedar Rapids & Iowa City Railway, 160 N.W.2d 838, 841 (Iowa 1968), Aff'd, 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969); Lattner v. Immaculate Conception Church, 255 Iowa 120, 129, 121 N.W.2d 639, 645 (1963); W. Prosser, Supra, at 192-95.

The city does not disavow its duties under the statutes and ordinances but denies these obligations created a duty of reasonable care. It contends the applicable state and municipal inspection laws are designed to protect the public generally and do not create a duty of care to these individual plaintiffs.

The city relies on decisions from several other jurisdictions. Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967); Hannon v. Counihan, 54 Ill.App.3d 509, 12 Ill.Dec. 210, 369 N.E.2d 917 (1977); Grogan v. Commonwealth, 577 S.W.2d 4 (Ky. 1979); Dufrene v. Guarino, 343 So.2d 1097 (La.App. 1977); Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972); Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635 (1965); Georges v. Tudor, 16 Wash.App. 407, 556 P.2d 564 (1976).

In most of these cases the sovereign was held not liable on one or both of two grounds. The first is the concept there should be no liability for failure to provide general police or fire protection. The second is the related "public duty" doctrine the notion that if a duty is owed to the public generally there is no liability to an individual member of that group. Neither factor can properly be urged in this case.

Moreover, the trend in this area is toward liability. The "public duty" doctrine has lost support in four of the eight jurisdictions relied upon by the city. Modlin has not survived the Florida legislature's recent abrogation of sovereign immunity. See Department of Health & Rehabilitative Services v. McDougall, 395 So.2d 528, 532 (Fla.App. 1978). The support the city finds in Georges is undermined by Halvorson v. Dahl, 89 Wash.2d 673, 676, 574 P.2d 1190, 1192 (1978) ("Liability can be founded upon a municipal code if that code by its terms evidences a clear intent to identify and protect a particular and circumscribed class of persons."). Motyka turned on "failure to supply adequate police or fire protection," 15 N.Y.2d at 139, 256 N.Y.S.2d at 598, 204 N.E.2d at 637, and expressly did not modify the holding in Runkel v. City of New York, 282 App.Div. 173, 177, 123 N.Y.S.2d 485, 489 (1953), Appeal on remand sub nom. Runkel v. Homelsky, 286 A.D. 1101, 145 N.Y.S.2d 729 (1955), Aff'd, 3 N.Y.2d 857, 166 N.Y.S.2d 307, 145 N.E.2d 23 (1957) ("Plaintiffs (injured by collapse of three-story multiple dwelling) come within the class of persons intended to be protected by these statutory provisions (imposing mandatory duty to abate as nuisance); consequently, they may sue to recover damages caused by defendants' breach of such provisions . . . ."). The effect of Hoffert was severely limited in Lorshbough v. Township of Buzzle, Minn., 258 N.W.2d 96, 102 (1977) (A) governmental unit owes a particular individual a duty of care when its officer or agent, in a position and with authority to act, as or should have had knowledge of a condition that violates safety standards prescribed by statute or regulation, and that presents a risk of serious harm to the individual or his property. When such serious injury is reasonably foreseeable, the governmental unit has a duty to exercise reasonable care for the individual's safety.

The state of Minnesota law after Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn. 1979), quoted in the special concurrence, is at best unsettled.

Other jurisdictions have recognized the growing trend toward imposing liability upon governmental units for negligence in execution of statutory duties. Royal Indemnity Co. v. City of Erie, 372 F.Supp. 1137 (W.D.Pa. 1974) (Pennsylvania law); State v. Jennings, 555 P.2d 248 (Alaska 1976); Adams v. State, 555 P.2d 235 (Alaska 1976); Sexstone v. City of Rochester, 32 A.D.2d 737, 301 N.Y.S.2d 887 (1969); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976); Dutton v. Bognor Regis Urban District Council, (1972) 1 Q.B. 373.

Of all the cases finding liability, only Halvorson, Runkel, Lorshbough, Sexstone, and...