Gruener v. City of Cedar Falls

• Decision Date: 09 September 1971
• Docket Number: No. 54575,54575
• Citation: 189 N.W.2d 577
• Parties: Lena GRUENER, Appellant, v. CITY OF CEDAR FALLS, Iowa, et al., Appellees.
• Court: Iowa Supreme Court

Page 577

189 N.W.2d 577

Lena GRUENER, Appellant, v. CITY OF CEDAR FALLS, Iowa, et al., Appellees.

No. 54575.

Supreme Court of Iowa.

Sept. 9, 1971.

Christoffersen & Damsgaard, Cedar Falls, for appellant.

Beecher, Buckmaster, Beecher, Holmes & Lindeman, Waterloo, for appellees other than Blue.

Mosier, Thomas, Beatty, Dutton & Braun, Waterloo, for appellee Blue.

UHLENHOPP, Justice.

The main issue in this case is whether plaintiff's resistance to a motion for summary judgment was sufficient.

Plaintiff in the case, Lena Gruener, was a patient in the municipal hospital of Cedar Falls, Iowa, at the time of the incident in question. Defendants are the City of Cedar Falls, its hospital, the hospital administrator, the City's liability insurer, and plaintiff's attending physician. All defendants except the City and the physician were dismissed from the case in proceedings not involved here. The present appal concerns plaintiff and the City only.

Plaintiff commenced the action on September 23, 1969. She alleges her cause in three divisions of the petition. In the first division she asks compensatory damages for personal injuries. This division is predicated on res ipsa loquitur-negligently allowing plaintiff to fall out of a hospital bed on May 22, 1968, when she was under heavy sedation. In the second division, plaintiff asks exemplary damages. Here plaintiff alleges that the City, the hospital, and the administrator maliciously refused to let her see her medical records but made them available to the liability insurer and the physician. In the third division plaintiff again asks exemplary damages, alleging that the City, the hospital, and the administrator maliciously made her medical records available to the other defendants and conspired to prevent her from having access to them.

The City answered and averred, among other defenses, that plaintiff did not commence her action within three months, as required by what is now § 613A.5, Code, 1971. Plaintiff replied, alleging that the City intentionally concealed the facts from her for the specific purpose of setting up the statute of limitations and that such statute does not begin to run until defendants divulge to plaintiff the cause of her injuries.

The City then filed a motion for summary judgment stating that no notice was presented to it until this action was commenced (almost 16 months after the incident) and that the action against it is barred under the statute. Plaintiff, through her attorney, filed resistance, incorporating her pleadings and stating that the statute does not run until the City reveals the facts, that the statute is inapplicable because the City acted in a proprietary capacity, and that a factual dispute exists as to whether the statute of limitations has run.

At the hearing on the motion, the City established as a fact, by way of stipulation of the parties, that no 60-day notice was presented to it as prescribed by § 613A.5, supra.

The trial court sustained the motion, and plaintiff appealed.

Two legal problems are presented. Does § 613A.5 apply to tort actions against municipalities acting in a proprietary capacity? Is plaintiff's resistance to the motion sufficient in content?

I. Scope of § 613A.5. We need not decide whether a city acts in a governmental or proprietary capacity in operating a hospital. See Wittmer v. Letts, 248 Iowa 648, 80 N.W.2d 561; Annot., 25 A.L.R.2d 203. We will assume for present purposes that the function is proprietary. Does § 613A.5 apply to torts committed in a proprietary capacity?

The answer turns on the intention of the legislature, ascertained from the language of chapter 613A of the Code. Section 613A.5 is sweeping in its pertinent portion:

Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury Within the scope of section 613A.2 shall commence an action therefor within three months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. (Then follows a two-year limitation if the 60-day notice is given.) (Italics added.)

The question, therefore, is whether actions based on proprietary functions are 'within the scope of section 613A.2'. That section provides:

Except as otherwise provided in this Chapter (and none of the excepted claims are involved here), every municipality is subject to liability for its torts and those of its officers, employees, and agents acting within the scope of their employment or duties, Whether arising out of a governmental or proprietary function. (Italics added.)

These two sections, read together, make plain that the special limitations in § 613A.5 apply to both governmental and proprietary operations of municipalities. Moreover, § 613A.2 uses the term 'torts,' and that term is defined in § 613A.1(3) as 'every civil wrong'. (Italics added.)

This interpretation is consistent with the general rule that statutes of limitation pertaining to actions against municipalities apply to both governmental and proprietary functions unless the statute otherwise provides. Collins v. Memphis, 16 F.Supp. 204 (W.D.Tenn.); Frasch v. New Ulm, 130 Minn. 41, 153 N.W. 121; Hirth v. Long Prairie, 274 Minn. 76, 143 N.W.2d 205. Not only does the present statute not provide otherwise, but it expressly covers functions of both kinds.

We hold the present claim against the City is within the scope of § 613A.5.

II. Sufficiency of Resistance. As to the second problem, this case, like most cases involving motions for summary judgment, turns on the sufficiency of the resistance to the motion rather than on the sufficiency of the motion itself. Cf. Sherwood v. Nissen, 179 N.W.2d 336 (Iowa).

The facts on which the motion itself was based were established beyond question: (a) the action is for personal injuries against a municipality, (b) no 60-day notice was presented to the municipality under § 613A.5, and (c) the action was commenced one day short of 16 months after the injury. With these facts established under the City's motion, plaintiff had to show that her action was not barred or suffer adverse judgment as to the City.

Involved here is the basic purpose of summary judgment procedure. Every trial court has on its docket some pleaded claims and defenses which are actually without substance and exist only on paper. To obviate the labor and expense of trial to expose those empty vessels, summary judgment procedure was conceived. By proper motion, a party can compel his adversary to come forth with specific facts which constitute competent evidence showing a prima facie claim or defense. Paper cases and defenses can thus be weeded out to make way for litigation which does have something to it.

The language of our rule on summary judgments is very strong. Rule 237(e), Rules of Civil Procedure. Affidavits cannot merely be based on what someone has reported to affiant: 'Supporting and opposing affidavits shall be made on personal knowledge'. Conclusions and beliefs are insufficient: 'shall set forth such facts as would be admissible in evidence'. The person making the statements must know whereof he speaks: 'shall show affirmatively that the affiant is competent to testify to the matters stated therein.' When the motion itself is substantiated, the opposing party cannot simply rely upon his pleadings, for the pleadings are the very instruments that the procedure is designed to pierce: 'an adverse party may not rest upon the mere allegations or denials of his pleading'. Neither can the opposing party assert only generalities in resistance: 'his response, by affidavits or as otherwise provided in this rule, must set forth Specific facts showing that there is a genuine issue for trial.' (Italics added.)

The legal theory which plaintiff relies upon in order to avoid the bar of the statute of limitations is the doctrine of fraudulent concealment. If a person is unaware of his cause of action because the wrongdoer fraudulently conceals it from him, the statute of limitations does not run against him until he learns of the wrong or of facts placing him on inquiry. Pride v. Peterson, 173 N.W.2d 549 (Iowa); 54 C.J.S. Limitations of Actions § 206 at 219; 51 Am.Jur.2d Limitations of Actions § 147 at 717. We will assume arguendo that the doctrine applies to claims against...