Breese v. City of Burlington, No. 19-0484

CourtUnited States State Supreme Court of Iowa
Writing for the CourtCHRISTENSEN, Chief Justice.
Citation945 N.W.2d 12
Docket NumberNo. 19-0484
Decision Date12 June 2020
Parties Kathryn Marie BREESE, Individually and as Mother and Next Friend of E.K.B., a Minor Child, Appellants, v. CITY OF BURLINGTON, Appellee.

945 N.W.2d 12

Kathryn Marie BREESE, Individually and as Mother and Next Friend of E.K.B., a Minor Child, Appellants,
v.
CITY OF BURLINGTON, Appellee.

No. 19-0484

Supreme Court of Iowa.

Filed June 12, 2020


Stephen T. Fieweger, Davenport, for appellants.

J. Scott Bardole of Andersen & Associates, West Des Moines, for appellee.

CHRISTENSEN, Chief Justice.

945 N.W.2d 15

This case involves a bicycle accident that occurred when a mother struck a tree branch while riding on a sewer box that was connected to a public pathway and fell approximately ten feet from the sewer box to the ground. She sustained serious injuries and her coplaintiff, her then nine-year-old daughter, sustained emotional injuries. Plaintiffs sued the City of Burlington seeking recovery for damages resulting from the City's allegedly negligent conduct in connecting the sewer box to the pathway without providing guardrails, in failing to provide warning signs that the pathway reached dangerous heights without a safe turn-around point, and in failing to provide warning signs that the sewer box was not part of the trail system. By failing to provide these measures, plaintiffs maintain the City gave the sewer box the appearance that it was part of the City's trail system.

The district court granted summary judgment to the City based on the public-duty doctrine and state-of-the-art defense. Plaintiffs appealed. For the reasons explained below, we reverse the district court's grant of summary judgment to the City because the public-duty doctrine does not shield the City from its affirmative acts in this situation. Further, there is a genuine issue of material fact as to whether the City's pathway connected to the sewer box met the recognized safety standards at the time of construction.

I. Background Facts and Proceedings.

On August 30, 2015, Kathryn Breese and E.K.B., her nine-year-old daughter, were riding their bicycles through the northern edge of Dankwardt Park in Burlington, Iowa. Without realizing they were doing so, Breese and E.K.B. began riding on top of a sewer box. The box was directly connected to the pathway and the top of the sewer box was flush with the pathway at the point of connection. The sewer box led into a wooded area. There was no indication by appearance or signage that the sewer box was not part of the Dankwardt Park pathway.

Approximately five minutes into riding on the sewer box, Breese noticed that they were riding on an area that was rising higher above ground and had low-hanging tree branches in front of them. There were no guardrails or warning signs, and Breese and E.K.B. were on the part of the sewer box that was around ten feet above the ground. Breese instructed E.K.B. to stop and decided they should turn around.

After Breese helped E.K.B. turn her bicycle around safely, Breese tried to turn her own bicycle around. In doing so, Breese struck a tree branch and lost control of her bicycle. She fell around ten feet to the ground from the sewer box, resulting in serious injuries. E.K.B. left to summon help. Emergency medical technicians arrived to assist Breese, and Breese was transported to Great River Medical Center for her injuries.

On August 29, 2017, the plaintiffs, Breese and E.K.B., by and through Breese as her mother and next friend, filed suit against the City of Burlington (City). Plaintiffs alleged that the City was negligent in failing to place guardrails along the sewer box, failing to warn users that the path "reached hazardous heights and had no safe turn around points," and failing to warn users of the trail that the sewer box was not part of the Dankwardt Park trail system. Plaintiffs alleged this negligence was the proximate cause of their injuries, including emotional injuries to E.K.B. from the trauma of the incident. On October 19,

945 N.W.2d 16

the City filed an answer denying liability and pleading various affirmative defenses.

On January 16, 2019, the City filed a motion for summary judgment, asserting two independent grounds: (1) the public-duty doctrine precluded plaintiffs’ action, and (2) the City was immune from liability under the state-of-the-art defense. The City submitted several exhibits with its statement of facts. These exhibits included the affidavit of Eric Tysland, the Community Development and Parks Director for the City of Burlington, who declared the City has never officially designated the sewer box as a hiking or bicycle trail nor has the City ever modified the sewer box. The City also submitted the affidavit of architect Robert Plichta, who opined that the sewer box was constructed in accordance with the generally recognized engineering and safety standards in existence at the time of its construction circa 1930. The City's reply to plaintiffs’ resistance contained additional exhibits in the form of copies of two of the City's liability insurance policies.

Plaintiffs filed a resistance to the motion for summary judgment on February 1 and submitted a response to the City's statement of facts that contained additional exhibits. These exhibits included the affidavit and reports of Thomas Rush, a professional engineer, who claimed there was a City-created map that referred to the sewer box as part of the "sewer trail." Moreover, plaintiffs alleged the City connected the sewer box to the park pathway between 1980 and 1992 based on the following interrogatory and the City's answer:

Interrogatory No. 15 : If as the defendant alleges that this pathway that plaintiffs used on August 30, 2015 was a sewer box, please state why the defendant connected the park pathway to the sewer box and identify each person ... who participated in the decision to do so.

Answer: The pathway was built between 1980 and 1992. No current City employees were involved in the construction. Defendant is attempting to locate retired employees who may have knowledge as to why the pathway was constructed.

Plaintiffs also relied on pictures attached to an exhibit that show an area where the Dankwardt Park trail connects at-grade with the pathway leading to the sewer box, claiming this constitutes the City's "upgrade" or "improvement" to the sewer box. Consequently, plaintiffs maintained, the City should have complied with the applicable engineering and safety standards in effect between 1980 and 1992. According to the affidavit and reports of Rush, an Iowa Department of Transportation (DOT) publication called "Iowa Trails 2000" that provides guidance for dealing with drop-offs in proximity to multi-use trails or facilities used by pedestrians and bicyclists proclaims a fence is appropriate when either side of a trail drops off steeply.

Rush also referred to two publications by the American Association of State Highway and Transportation Officials (AASHTO) that would have recommended a graded shoulder area of at least three to five feet wide or physical barriers or rails for steep slopes, though no date was given for these publications. Based on these publications, Rush concluded guardrails and warning signs could have prevented plaintiffs’ incident. Plaintiffs relied on this evidence to demonstrate the City failed to comply with the applicable engineering and safety standards in effect between 1980 and 1992.

On March 10, the district court entered an order granting the City's motion for summary judgment. The district court reasoned the public-duty doctrine, which does not allow individuals to sue the government for breach of a duty owed to the

945 N.W.2d 17

public at large, barred plaintiffs’ claims. As the district court explained,

here the City has been sued for failure to install guardrails or place warning signs to alert pedestrians or bicyclists in a City-owned park. These are safety-related duties owed to the general public.... [T]here is no special relationship with the City for bicyclists in Dankwardt Park. Therefore, the public duty rule applies, and the City's Motion for Summary Judgment must be granted on the basis that the City owed no duty to the Plaintiffs.

The district court also concluded the City was immune from liability based on the state-of-the-art defense. In doing so, the district court noted that plaintiffs "offered no proof of the City's failure to adhere to a generally recognized engineering or safety standard, criteria, or design theory in existence in the 1930's era when the sewer box/path was constructed." The district court further found that connecting the sewer box to the Dankwardt Park path between 1980 and 1992 did not constitute a "reconstruction" under the law.1 Plaintiffs appealed, and we retained the appeal.

II. Standard of Review.

We review a district court's summary judgment ruling for correction of errors at law. Albaugh v. The Reserve , 930 N.W.2d 676, 682 (Iowa 2019). In doing so, "[w]e view the record in the light most favorable to the nonmoving party." Deeds v. City of Marion , 914 N.W.2d 330, 339 (Iowa 2018). "Summary judgment is proper when the moving party has shown ‘there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’ " Albaugh , 930 N.W.2d at 682 (quoting Jahnke v. Deere & Co. , 912 N.W.2d 136, 141 (Iowa 2018) ). When the facts are undisputed and only...

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8 practice notes
  • State v. Smith, No. 19-2011
    • United States
    • United States State Supreme Court of Iowa
    • April 9, 2021
    ...burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."); cf. Breese v. City of Burlington , 945 N.W.2d 12, 23 (Iowa 2020) ("Given the function of the state-of-the-art defense, placing the burden on the party challenging the defense is illog......
  • State v. McGee, No. 19-1219
    • United States
    • United States State Supreme Court of Iowa
    • May 14, 2021
    ...burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."); cf. Breese v. City of Burlington , 945 N.W.2d 12, 23 (Iowa 2020) ("Given the function of the state-of-the-art defense, placing the burden on the party challenging the defense is illog......
  • State v. Shorter, No. 18-1142
    • United States
    • United States State Supreme Court of Iowa
    • June 12, 2020
    ...REVERSED AND REMANDED FOR NEW TRIAL.All justices concur except Appel, J., who specially concurs. APPEL, Justice (concurring specially).945 N.W.2d 12 I concur with the opinion of the court on the issue of whether the jury instruction including possession was erroneous.On the question of harm......
  • Maldonado v. City of Sibley, 20-CV-4029-LRR
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 24, 2021
    ...public . . . or a government failure to protect the general public from somebody else's instrumentality[.]” Breese v. City of Burlington, 945 N.W.2d 12, 21 (Iowa 2020) (citations omitted). In Fulps v. City of Urbandale, 956 N.W.2d 469 (Iowa 2021), the Iowa Supreme Court explained more fully......
  • Request a trial to view additional results
8 cases
  • State v. Smith, No. 19-2011
    • United States
    • United States State Supreme Court of Iowa
    • April 9, 2021
    ...burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."); cf. Breese v. City of Burlington , 945 N.W.2d 12, 23 (Iowa 2020) ("Given the function of the state-of-the-art defense, placing the burden on the party challenging the defense is illog......
  • State v. McGee, No. 19-1219
    • United States
    • United States State Supreme Court of Iowa
    • May 14, 2021
    ...burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."); cf. Breese v. City of Burlington , 945 N.W.2d 12, 23 (Iowa 2020) ("Given the function of the state-of-the-art defense, placing the burden on the party challenging the defense is illog......
  • State v. Shorter, No. 18-1142
    • United States
    • United States State Supreme Court of Iowa
    • June 12, 2020
    ...REVERSED AND REMANDED FOR NEW TRIAL.All justices concur except Appel, J., who specially concurs. APPEL, Justice (concurring specially).945 N.W.2d 12 I concur with the opinion of the court on the issue of whether the jury instruction including possession was erroneous.On the question of harm......
  • Maldonado v. City of Sibley, 20-CV-4029-LRR
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 24, 2021
    ...public . . . or a government failure to protect the general public from somebody else's instrumentality[.]” Breese v. City of Burlington, 945 N.W.2d 12, 21 (Iowa 2020) (citations omitted). In Fulps v. City of Urbandale, 956 N.W.2d 469 (Iowa 2021), the Iowa Supreme Court explained more fully......
  • Request a trial to view additional results

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