Estate of Representative v. State

Citation881 N.W.2d 51
Decision Date17 June 2016
Docket NumberNo. 14–1180.,14–1180.
PartiesESTATE OF David Paul McFARLIN by Its Personal Representative, Jamie Laass; Jamie Laass, Individually; and Jamie Laass, as Parent and Next Friend of S.L., Appellants, v. STATE of Iowa, Appellee.
CourtUnited States State Supreme Court of Iowa

Jay E. Denne and Stanley E. Munger of Munger, Reinschmidt & Denne, LLP, Sioux City, for appellants.

Thomas J. Miller, Attorney General, and Anne Updegraff, Assistant Attorney General, for appellee.

WATERMAN

, Justice.

This appeal presents several questions of law on the liability of the State of Iowa for a fatal boating accident on Storm Lake. A ten-year-old boy riding in a speedboat died when his mother's boyfriend drove the watercraft at thirty miles per hour between two danger buoys and struck a submerged dredge pipe. The mother filed several tort actions and settled claims against the entities that operated and marked the dredge, the boat manufacturer, and her boyfriend. Her lawsuit against the State alleged its department of natural resources (DNR) shared responsibility for the accident. The district court granted the State's motion for summary judgment on several grounds: statutory immunity, the public-duty doctrine, and the lack of a private right to sue under Iowa statutes regulating use of public waterways. We transferred the mother's appeal to the court of appeals, which affirmed on all three grounds. We granted the mother's application for further review.

For the reasons explained below, we hold that Iowa Code chapters 461A and 462A provide no private right to sue and the public-duty doctrine bars the mother's common law tort claims against the State. Because those twin holdings resolve the appeal, we do not reach the statutory immunity issues. We vacate the decision of the court of appeals and affirm the summary judgment ruling dismissing this action.

I. Background Facts and Proceedings.

On Memorial Day weekend, May 31, 2010, Harry Foote took his girlfriend, Jamie Laass, and four children fishing on Storm Lake. They lived in South Sioux City, Nebraska. They drove to Storm Lake in Foote's pickup towing his 1850 Lund Tyee speedboat. That model is eighteen-feet long and seats six people. Its top speed is fifty miles per hour. Foote launched the watercraft at 9:30 a.m. from the Lakeside boat ramp. Storm Lake is open to the public, and boaters pay no fee to use the lake. Foote operated the speedboat with his five passengers: Laass; her ten-year-old son, D.M.; her minor daughter, S.L.; and two other children. Foote had gone walleye fishing on Storm Lake before, and he knew there was an ongoing dredging operation at the lake.

Once Foote left the no-wake zone, he headed west, skimming over the water at a speed greater than thirty miles per hour. A couple fishing in another boat signaled Foote to slow down, but he did not see them. Foote rapidly approached several buoys that were white with black lettering stating “DREDGE PIPE.” The buoys displayed an orange diamond, which the boater's manual describes as a danger sign. These buoys marked a submerged pipe used for an ongoing dredging operation. Foote was confused as to the dredge pipe's location and steered the speedboat to pass between two buoys at thirty miles per hour. He saw the dredge pipe immediately before reaching it. The boat's 175 horsepower, 400–pound outboard motor/propeller struck the pipe and flipped into the boat. The propeller was still spinning when it landed in the passenger compartment and struck D.M., who died from his injuries later that day.

Storm Lake is a meandered lake located in Buena Vista County, Iowa. The State of Iowa owns the lakebed and allows the public to use the lake for recreation. The DNR uses Storm Lake as a walleye fishery. The DNR harvests walleye eggs from Storm Lake to stock other Iowa lakes for fishing. The State allowed dredging to begin on the lake in 2002 to improve water conditions for walleyes. Dredging is the process of removing sediment from the bottom of a lake to increase the depth of a lake and improve water quality. The sediment is removed through a pipe from the lake bottom to the location where the sediment is deposited on shore. When sediment is being removed, the pipe is submerged. When the dredge boat moves the pipe to start on a new area, the pipe can rise to the surface. On the day of the accident, the dredge pipe was marked every 300 feet with white danger buoys.

The State hired a contractor to dredge the first year. After the one-year contract expired, the contractor took its dredging equipment elsewhere. In 2003, the Lakeside Improvement Commission (LIC), an Iowa Code chapter 28E entity, was formed to take over the dredging operation. The LIC is comprised of representatives from Buena Vista County, the City of Storm Lake, the City of Lakeview, and the Lake Preservation Commission, a private nonprofit entity. Buena Vista County owns the dredge and accompanying equipment, and the dredge operators are employees of the City of Storm Lake. The LIC is required to apply annually for a permit from the DNR through the Natural Resources Commission (NRC). See Iowa Code § 461A.53 (2009)

. The permits require the LIC to notify the DNR “prior to the beginning of the construction and upon its completion so it may be ascertained that the state's interests are being protected.” The LIC submits a new dredging plan each year, which has been approved annually by the NRC. The DNR reimburses the LIC for the costs of the dredging when its budget permits.

In July 2009, two boaters filed accident reports with the NRC stating their boats had hit the submerged dredge pipe. Reports are filed with the NRC if property damage exceeds $2000. No changes were made to better identify the dredge pipe's location. In 2010, the permitted area for dredging spanned approximately half of the surface area of the lake. The dredging project was expected to take ten to twelve years to complete.

Laass filed three lawsuits on behalf of D.M.'s estate, her daughter, and herself. One action in federal court named as defendants Foote, the dredge operator, local entities operating the dredge equipment (the City of Storm Lake, Buena Vista County, and the LIC), and Brunswick Corporation, the boat manufacturer. The estate recovered a settlement of $1.2 million in that lawsuit. A separate federal court action against Lakeside Marina, Inc. was dismissed on summary judgment on grounds that the defendant had no control over the lake. This appeal arises from the third suit, filed in Buena Vista County, against the DNR and the State of Iowa. The DNR was dismissed as a party on January 14, 2013, leaving the State of Iowa as the sole defendant. The parties proceeded with discovery and developed an evidentiary record regarding responsibility for the dredging and buoys.

There are three types of buoys used on Storm Lake. “No wake” buoys are placed by the DNR. These buoys have a circle and say “slow no wake.” Exclusion buoys are placed by the DNR to indicate areas that are off-limits to all vessels. DNR Officer Brent Koppie testified that he places no-wake buoys in the lake in the spring and removes them in the winter. The estate's expert, Marjorie Cooke, also testified that the DNR officers receive training about the placement and management of exclusionary buoys.

Finally, danger buoys are used on Storm Lake to mark rocks, shoals, construction, dams, or stumps. Danger buoys are white with an orange diamond. The record shows that the DNR was not responsible for the placement of those buoys to mark the dredge pipe. To the contrary, Randy Redig, a dredge operator employed by the City of Storm Lake, testified the dredge operators—city employees—controlled and maintained the danger buoys marking the submerged dredge pipe.

Patrick Kelly, the Public Works Director for the City of Storm Lake, explained that the city was responsible for warning boaters about the dredge pipe, and the city had made adjustments to the marking of the pipe after D.M.'s death:

Q. So your thought was that nobody had the responsibility of making the dredge operation safer for boaters? A. We had the—We had the—It was our responsibility to make it safe, and we felt we've done that.
Q. Okay. A. As much as we can.
Q. Have any changes taken place in the dredging operation since [D.M.] was killed to make it safer? A. The only thing we did is we added some small orange intermediate markers in the dredge pipe.
Q. So now how far apart are they spaced? A. They're roughly 150 feet.

Kelly testified that the DNR was not involved with the day-to-day operations of the dredge:

Q. What do you do by “day-to-day operations”? A. I'm the go-between between the dredge and the LIC, Lake Improvement Commission, and then I monitor the daily work sheets and troubleshoot anything that they have problems with or make sure they're getting the work done that needs to be done.
Q. Who specifies where the dredge covers on the lake? A. What we do on that is I draw up a plan from year to year. It's submitted to the DNR for their approval, and then DNR writes off on that, and then we schedule it out from there.
....
Q. And what role do you understand the DNR plays in the dredging operation? A. Just oversee it and give us money to operate.
Q. Do they specify how to dredge? A. No.
Q. Do they specify whether—any of the safety precautions relative to dredging? A. No.
Q. Do they—In your view, do they have the ability to specify those things if they want? A. I can't answer that.
Q. Have they been on-site looking at the dredging operation? A. Correct.
Q. How long does that happen? A. Oh, actually going out on the dredge, maybe once or twice a year....

DNR Officer Koppie once raised concerns about the floating pipe being dangerous, and those concerns were addressed:

Q. [W]ho did you express the concern to? A. I expressed the concern through our dispatch to the dredge crew for the City of Storm Lake.
Q. And how do you know it got to the dredge crew? A. Because it was rectified.
Q. Okay. On the occasion you
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