Doe v. Cedar Rapids Community School Dist.

• Decision Date: 05 September 2002
• Docket Number: No. 01-0648.,01-0648.
• Citation: 652 N.W.2d 439
• Parties: A. DOE, as Mother and Next Friend of B. DOE, a Minor; A. Roe, as Mother and Next Friend of B. Roe, a Minor; and A. Jones, as Mother and Next Friend of B. Jones, Appellants, v. CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, Appellee.
• Court: Iowa Supreme Court

652 N.W.2d 439

A. DOE, as Mother and Next Friend of B. DOE, a Minor; A. Roe, as Mother and Next Friend of B. Roe, a Minor; and A. Jones, as Mother and Next Friend of B. Jones, Appellants, v. CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, Appellee.

No. 01-0648.

Supreme Court of Iowa.

September 5, 2002.

Rehearing Denied October 30, 2002.

Anne Updegraff of Tom Riley Law Firm, P.C., Cedar Rapids, for appellants.

Matthew G. Novak and Thad J. Collins of Pickens, Barnes & Abernathy, Cedar Rapids, for appellee.

STREIT, Justice.

Three female students sued the Cedar Rapids Community School District alleging improper sexual conduct by a teacher with the students. The suit was based on Gary Lindsey's alleged improper conduct with the three girls at Van Buren Middle School in 1995 where Lindsey was their music teacher. The action was premised on theories of respondeat superior and negligent hiring, retention, and supervision of Lindsey. The district court granted summary judgment finding the School was protected from liability under the discretionary function immunity. Because we find the discretionary function immunity does not apply to the acts of a school district in hiring, retaining, and supervising an individual employee, we reverse and remand.

I. Background and Facts

Gary Lindsey has a long history of allegations of misconduct related to his employment as a teacher for two school districts. We begin in 1964 while Lindsey was employed by the Oelwein Community School District. One of the fifth grade girls said Lindsey improperly touched her. Lindsey explained his conduct saying, "I guess it was a lust for the flesh." Admitting the allegations against him, Lindsey resigned from his position during the middle of the school year. In 1972, while Lindsey was employed by the Cedar Rapids Community School District, several students made accusations of improper conduct against him. Lindsey was involved in an altercation with one of his students. He slammed the boy up against a locker and grabbed his throat. Another student lodged a complaint in 1986 concerning disciplinary measures taken by Lindsey against the student. There are no documents available regarding this particular allegation. In 1988, Lindsey admitted telling a male student he "would not live to [the] age [of] seventeen as driving too fast, drugs, or sex would get him before that." The School required Lindsey to apologize.

After these incidents of misconduct, the School adopted policies and regulations to apply to Lindsey's conduct. It implemented a policy entitled "Student Welfare" that states, in part, "The District will make every effort to protect, improve, and maintain the physical, emotional, and social well-being of students." The School also adopted a policy regarding the evaluation of its teachers. This policy provided, "The purpose of this process should be to identify and strengthen positive areas of employee performance, as well as to identify and correct deficiencies in employee performance."

In 1990 the School again reprimanded Lindsey after a fifth grade female student claimed Lindsey made inappropriate comments to her about her clothes. The student told her mother she was "going to wear her tight pants today, because Mr. Lindsey said he really liked them on me." Lindsey exchanged notes with the student in which he discussed parts of her body and called her "Sweet Pea." He engaged in physical contact including back rubs with her and had lunch sessions with her in his classroom. Lindsey did not dispute any of the girl's allegations. The School responded to this situation by issuing Lindsey a letter of reprimand. The School warned Lindsey that if another situation of this sort occurred, serious disciplinary action would be taken, including possible termination.

The final allegations of misconduct are the ones before us on appeal. Minor Roe was nine years old in 1995 and in the third grade at Van Buren Elementary School in Cedar Rapids. Roe said Lindsey placed her hands on his penis, hugged her, and kissed her. At Lindsey's request, Roe would stay in Lindsey's classroom alone with him during recess. Lindsey also blew kisses at Roe and told her she was a pretty girl and that he liked her very much.

Similar allegations were reported by Minor Doe who was eight years old and in the third grade at Van Buren. Doe said Lindsey placed her hands on his penis on more than one occasion. Lindsey testified that he "could not recall one way or the other" whether he had made Doe touch his penis. He also hugged and kissed her. Lindsey claimed he could not remember whether or not he kissed Doe. Like Roe, Lindsey asked Doe to stay alone with him in his classroom during lunch. Lindsey gave Doe a flower in a vase, though Lindsey denied this allegation.

Finally, a third student made charges similar to the above allegations. Minor Jones was eight years old and in the third grade at Van Buren. On more than one occasion, Lindsey placed her hands on his penis and hugged her. Lindsey admitted he hugged each of the three girls.

On August 7, 1998, their mothers on behalf of their minor daughters filed suit against the Cedar Rapids Community School District and Gary Lindsey. Alleging Lindsey's improper contact with the three girls, the minors premised their suit on theories of respondeat superior and negligent hiring, retention, and supervision. The School filed a motion for summary judgment challenging the respondeat superior claim asserting Lindsey's alleged misconduct was beyond the scope of his employment as a matter of law. The School also argued that judgment as a matter of law on the negligence claims was appropriate because there was no evidence the School knew or should have known of Lindsey's unfitness to teach. Alternatively, the School contends it is immune under the discretionary function exception of Iowa Code section 670.4(3) (1995).

The district court concluded Lindsey's alleged misconduct was beyond the scope of his employment and granted summary judgment on the vicarious liability claims. In the claim based on negligent hiring, retention, and supervision, the court found the minors generated a factual issue on whether the School had adequate notice of past misconduct to render Lindsey's acts foreseeable. Notwithstanding, the court concluded the School was immune under the discretionary function exception. Specifically, the court found the School did take some action regarding prior accusations against Lindsey. It then ruled hiring and supervision of employees involves the type of policy considerations the discretionary function exception was designed to shield from challenge.

The minors appeal challenging the district court's grant of summary judgment based on discretionary function immunity. They contend the immunity should not apply when a school hires, retains, or fails to supervise a teacher when it knows or should know the specific teacher has a proclivity to assault children. Specifically, the minors allege because Lindsey was previously fired from another school during the middle of a school year for misconduct, the School should have discovered this information in the hiring process. To support their claim of negligent retention and supervision, the minors show a pattern of misconduct citing a 1990 reprimand for inappropriate comments and contact with a student and 1992 allegations of improper contact. The minors further claim the School policies and the terms of the 1990 reprimand established a mandated procedure to prevent further abuse of students, and therefore there was no judgment involved in the School's failure to take corrective action. In such case, the minors argue the discretionary function immunity does not apply.

II. Scope of Review

Our review of a denial of a motion for summary judgment is for correction of errors at law. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 857 (Iowa 2001) (citation omitted). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981(3) (2002).

III. The Merits

On appeal, the minors only challenge the district court ruling granting summary judgment to the School on the issue of negligent hiring, retention, and supervision. They do not appeal the court's ruling on the respondeat superior claim. Therefore, we will concentrate our efforts on the issue of the discretionary function immunity, as this was the basis of the district court's ruling.

A. Discretionary Function Immunity

Our first step is to determine whether the district court correctly found the discretionary function immunity applies here. The district court found considerations involved in the hiring and retention of school district employees include the type of balancing of competing interests the discretionary function immunity is designed to protect. Simply because the government entity exercised some discretion in a particular action does not assure it immunity. Today, liability is the rule and immunity the exception. Young v. City of Des Moines, 262 N.W.2d 612, 620 (Iowa 1978),overruled on other grounds by Parks v. City of Marshalltown, 440 N.W.2d 377, 379 (1989)

. Governmental entities are entitled to immunity only to the extent permitted by statute. Iowa Code section 670.4(3) provides immunity from

[a]ny claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.

The issue then is whether the School's conduct in hiring, retaining, and supervising a particular teacher is immune from suit. In Iowa, we have adopted the test articulated by the United States Supreme Court for testing whether the discretionary...