Hawkeye Bank & Trust Co. v. Spencer
| Decision Date | 28 April 1992 |
| Docket Number | No. 91-513,91-513 |
| Citation | 487 N.W.2d 94 |
| Parties | HAWKEYE BANK & TRUST CO., Executor of the Estate of Victoria Haskins Graham, Deceased, and Michael Rolland Graham and Victoria Lee Graham, and David Repp, as Executor of the Estate of Larry Repp, Janelle D. Repp-Martin, Douglas G. Repp, and David M. Repp, Individually, Plaintiffs-Appellants, v. Harvey SPENCER, Defendant, and The City of Urbandale, Scott Williams, Tom Giampolo, Terry Dippold, and Delbert King, Defendants-Appellants, HAWKEYE BANK & TRUST CO., Executor of the Estate of Victoria Haskins Graham, Deceased, and Michael Rolland Graham and Victoria Lee Anderson f/k/a Victoria Lee Graham, Plaintiffs-Appellants, v. Scott WILLIAMS, Mark Taylor, Tom Giampolo, Terry Dippold and Delbert King, Defendants-Appellees. |
| Court | Iowa Court of Appeals |
Lawrence F. Scalise and Richard O. McConville of Scalise, Scism, Sandre, Uhl, McConville, Miller & Holliday, Des Moines, for plaintiffs-appellants Graham.
Thomas M. Zurek of Smith, Schneider, Stiles, Mumford, Schrage, Zurek, Wimer & Hudson, P.C., Des Moines, for plaintiffs-appellants Repp.
Timothy J. Walker and Wendy L. Carlson of Whitfield, Musgrave & Eddy, Des Moines, for defendant-appellant City of Urbandale.
Michael F. Lacey, Jr. and Mark A. Roeder of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker & Ordway, Des Moines, for defendant Spencer.
Heard by OXBERGER, C.J., and SCHLEGEL and HABHAB, JJ.
The issue in this case in whether statements by the Urbandale police to Graham created the kind of special relationship the Iowa Supreme Court has indicated is necessary to establish liability of a policeman for negligence when investigating crime.
In Hildenbrand v. Cox, 369 N.W.2d 411, 415 (Iowa 1985), the supreme court reaffirmed its previous statement:
The public has a vital stake in the active investigation and prosecution of crime. Police officers and other investigative agents must make quick and important decisions as to the course an investigation shall take. Their judgment will not always be right; but to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence.
The court in Hildenbrand expanded the nonliability rule for peace officers investigating criminal activity. They concluded the rule applies not only to cases where a person is allegedly harmed by a negligent investigation resulting in arrest and charge, but also when the allegedly negligent investigation results in no arrest.
The court recognized an exception to this general nonliability rule:
While adopting the general rule that a person owes no duty to act for the protection of others unless the actor has a special relationship (emphasis added) to the other person, those restatement provisions identify the special relationship and circumstances under which liability can be imposed on the actor.
The appellants Graham contend: "... in Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (1979), New Mexico held that even if initially no special relationship exists, a police officer, by voluntarily assuming a special duty, creates a privity by that action, subjects himself and the city to a special relationship, subjecting them to act under a standard of care.
The New Mexico court said:
[W]here there has been a specific promise or representation by police to a victim in a situation which creates justifiable reliance on the part of the victim, a special duty arises.
Grahams contend that because the appealed trial court ruling was on a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986).
The Grahams assert the evidence shows in the evening hours of April 18, 1989, Harvey Spencer, a former boyfriend of Victoria Graham, threatened to kill her. On April 19, Officer Scott Williams interviewed Graham at her home. He concluded that Spencer would carry out his threat. Williams told Graham that a special or extra watch would be placed on her and her home; that members of the force would attempt to contact Spencer and would watch for his presence or his vehicles in her neighborhood.
Two days later, Officer Dippold was the first police officer to respond to Officer Williams' assurances to Graham. After looking for Spencer, without success, Dippold concluded the matter could wait until Monday, two days later. No additional action was taken by any policeman on Williams' promises.
At approximately 2:00 a.m. on April 23, 1989, Spencer entered the Graham home and shot Graham and Larry Repp. Graham was not advised that no further action was to be done to provide protection. We accept the above statement of facts as true for the purpose of reviewing this motion for summary judgment.
The issue--did Officer Williams' promises to Graham to provide her with "special or extra watch" create a special relationship that imposes a liability on the Urbandale police department for negligence.
In Smith v. State, 324 N.W.2d 299 (Iowa 1982), the supreme court stated the public policy reason for granting police immunity for negligence in the investigation of crime:
... to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence.
We reject creating an exception for police promises of extra or special watches on citizens' person or property. The current State of Iowa law holds that if Officer Williams had informed Graham the matter would be handled in a routine manner, there would be no liability for a negligent investigation. It would be counter productive for us to announce a policy that says to the police, if you investigate routinely but negligently no liability, but if you take extra measures to help citizens and do it negligently, we will impose liability. Such a policy would discourage the police from making extra efforts to help citizens.
Furthermore, we believe the message of the supreme court in Hildenbrand is that the general rule for police investigations is no liability for negligence with two exceptions:
1. Where the police create the situation which places the...
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Lamp v. City of Bettendorf, Civil No. 3-99-cv-30121 (S.D. Iowa 12/21/2000), Civil No. 3-99-cv-30121.
...the officer and Hildenbrand, there was no duty to protect Hildenbrand from harming himself. Id. Later, in Hawkeye Bank & Trust Co. v. Spencer, 487 N.W.2d 94 (Iowa App. 1992), the Iowa Court of Appeals examined a claimed special relationship from the fact the police had told a murder victim ......
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Allen v. Anderson, 91-1514
...placed the citizen's life in jeopardy, or (2) the police took the citizen into their custody or control. Hawkeye Bank & Trust Co. v. Spencer, 487 N.W.2d 94, 97 (Iowa App.1992) (application for further review The plaintiffs contend Iowa Code section 719.2 created a duty on the part of the po......
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Morris v. Leaf
...324 N.W.2d 299, 302 (Iowa 1982) (declining to recognize a tort for negligent investigation of a crime); Hawkeye Bank & Trust Co. v. Spencer, 487 N.W.2d 94, 96-97 (Iowa App.1992) (police promises of extra or special watches on citizen's property do not create exception to general rule of non......
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Blazek v. City of Nev.
...sufficient to create a special relationship. Allen v. Anderson 490 N.W.2d 848, 856 (Iowa Ct. App. 1992) ; Hawkeye Bank & Tr. Co. v. Spencer , 487 N.W.2d 94, 96 (Iowa Ct. App. 1992). As noted above, a special relationship between the police and a member of the public is typically custodial i......