Hildenbrand v. Cox

• Decision Date: 19 June 1985
• Docket Number: No. 84-1031,84-1031
• Citation: 369 N.W.2d 411
• Parties: Janice Lynn HILDENBRAND, as Administrator of the Estate of Roger Dean Hildenbrand, deceased, Appellant, v. Jerry COX, Individually and in his official capacity; City of Corydon, Iowa, an Iowa municipality, Appellees, and Kelly's Place, Ltd., an Iowa corporation, Defendant.
• Court: Iowa Supreme Court

Page 411

369 N.W.2d 411

Janice Lynn HILDENBRAND, as Administrator of the Estate of Roger Dean Hildenbrand, deceased, Appellant, v. Jerry COX, Individually and in his official capacity; City of Corydon, Iowa, an Iowa municipality, Appellees and Kelly's Place, Ltd., an Iowa corporation, Defendant.

No. 84-1031.

Supreme Court of Iowa.

June 19, 1985.

Bruce Graham of Shelton, P.C., Chariton, for appellant.

Larry D. Spaulding and Bruce G. Kelley of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellees.

Alfredo G. Parrish, Des Moines, for appellee Jerry Cox.

Considered by McCORMICK, P.J., and McGIVERIN, SCHULTZ, CARTER and WOLLE, JJ.

WOLLE, Justice.

On March 24, 1983, Corydon police officer Jerry Cox investigated an accident in which an automobile driven by Roger D. Hildenbrand collided with a flower pot in the town square of Corydon, Iowa. Cox suspected intoxication, conducted a field sobriety test, then decided not to arrest Hildenbrand but instead issued him a citation for failing to have his vehicle under control. Hildenbrand drove his automobile away from the scene of that accident and shortly thereafter was killed in another collision. Hildenbrand's estate brought this wrongful death action against defendants Cox and the city of Corydon, alleging that Hildenbrand's intoxication caused both accidents and that officer Cox was negligent in failing to arrest Hildenbrand or place him in protective custody. (In separate counts of her petition the plaintiff also asserted dram shop claims against the bar where Hildenbrand had allegedly been drinking, but those dram shop claims are not involved in this appeal.) The trial court granted summary judgment for Cox and the city of Corydon, and plaintiff appeals both on procedural and substantive grounds. Plaintiff contends that the summary judgment motion should not have been considered because the legal issues it presented should have been raised by a motion to dismiss. Plaintiff also contends that the trial court erroneously failed to recognize common law and statutory duties which were owed by Cox and the city to Hildenbrand. We affirm.

I. Propriety of the Summary Judgment Motion.

Plaintiff contends that the court should not have considered the summary judgment motion because it was in essence a motion to dismiss which was not filed before answer as required by Iowa Rule of Civil Procedure 85(a). Plaintiff argues that defendants could only test the legal sufficiency of her petition by filing a timely motion to dismiss under Iowa Rule of Civil Procedure 104(b). Plaintiff relies on Powell v. Khodari-Intergreen Co., 303 N.W.2d 171, 174-75 (Iowa 1981), but that case is inapposite because there the defendants' belated oral motion to dismiss was not in form or substance a motion for summary judgment. Here the motion for summary judgment satisfied the requirements of rule 237 authorizing a court to grant summary judgment when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R.Civ.P. 237(c). A defendant "may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part" of the claim against the moving party. Iowa R.Civ.P. 237(b). There is no merit to plaintiff's contention that defendants' motion for summary judgment was improperly masquerading as a rule 104(b) motion to dismiss.

II. Facts Established by the Summary Judgment Record.

Defendants Cox and the city of Corydon, the parties requesting summary judgment, had the burden to establish the absence of any material fact on which plaintiff might base her claim of actionable negligence. Knapp v. Simmons, 345 N.W.2d 118, 121 (Iowa 1984). The entire record must be reviewed in the light most favorable to the party opposing the motion, affording that party all reasonable inferences that can be deduced from the factual record. Id.; Tasco, Inc. v. Winkel, 281 N.W.2d 280, 282 (Iowa 1979). When the opposing party makes limited resistance, however, and rests upon the pleadings, the facts in the moving party's affidavits are accepted as true for purposes of the motion. Colonial Baking Co. v. Dowie, 330 N.W.2d 279, 282 (Iowa 1983); Rohlin Construction Co. v. Lakes, Inc., 252 N.W.2d 403, 406 (Iowa 1977); Iowa R.Civ.P. 237(e) (In resisting a properly supported summary judgment motion, the opposing party "must set forth specific facts showing that there is a genuine issue for trial.").

This summary judgment record consisted of the affidavit of officer Cox, an affidavit of plaintiff's attorney in resistance, and the pleadings. Rule 237(e) provides in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Officer Cox in his affidavit based strictly on personal knowledge related what had occurred during his investigation of the flower pot incident. The affidavit of plaintiff's attorney, in contrast, referred only to his "files in the cause" and in conclusory terms summarized "information constituting the basis for evidence to be submitted in the cause." Although the attorney's affidavit referred to an official report of a blood test showing that Hildenbrand had a high percentage of alcohol in his blood when he died, no copy of the report was included in the record. Likewise the attorney's affidavit referred to witnesses who had reported to the attorney that Hildenbrand appeared intoxicated when Cox was with him, but no affidavits of those persons were presented to the summary judgment court. We disregard the affidavit of plaintiff's attorney and information it contained because that affidavit does not comply with the quoted requirements of rule 237(e).

The summary judgment record thus establishes the following facts on which the legal issues must be decided. Cox, an on-duty police officer employed by the city of Corydon, received a dispatch on the evening of March 24, 1983 that a vehicle had collided with a flower pot in the town square. Cox arrived at the scene, recognized the driver of the damaged vehicle as Hildenbrand, and noticed several beer cans in his car. Cox issued Hildenbrand a citation for failing to have control of his car. Hildenbrand admitted to Cox that he had consumed a few beers and had collided with the flower pot but said he was "a long way from being drunk." Hildenbrand agreed to undergo the field sobriety test requested by Cox, and he performed the test without any errors and satisfied Cox that he was sober. Cox believed he had no probable cause to take Hildenbrand into the station for a blood test and did not arrest him.

We also accept as true for purposes of defendants' summary judgment motion those allegations of the petition which were not contradicted by the Cox affidavit. Plaintiff alleged that Hildenbrand that night was "intoxicated or incapacitated by a chemical substance in a public place and in need of help," and that Hildenbrand's death in the second collision was proximately caused by his operation of his automobile in an impaired condition.

Boiled down to essentials, the summary judgment record shows that Hildenbrand was intoxicated when Cox investigated the first accident and when he later drove his automobile to his death, but the record further shows that Cox did not believe from his investigation of the first accident that Hildenbrand was intoxicated.

We turn to the question whether these factual circumstances would permit plaintiff to recover from Cox and the city on the negligence theories which plaintiff has advanced.

III. Did Cox Breach a Common Law Duty?

The trial court found that Cox had no common law duty to prevent Hildenbrand from hurting himself. Plaintiff contends that Hildenbrand was a person in danger to whom Cox and the city owed a special duty of reasonable care. Plaintiff asks us to hold that a peace officer has a common law duty to protect from harm a specific person whom the officer knows or has reason to know is intoxicated and in danger. Under this summary judgment record which establishes that Cox did not know that Hildenbrand was intoxicated, the pivotal question is whether Cox can be held liable for negligently failing to detect his intoxicated condition by conducting a more thorough investigation or investigating the incident in a different manner.

We reject plaintiff's proposed rule of liability because it cannot be harmonized with the rule we adopted in Smith v. State, 324 N.W.2d 299 (Iowa 1982). In Smith plaintiffs alleged that officers of the Iowa Division of Criminal Investigation had negligently investigated a double murder and erroneously charged plaintiffs with the crimes. Plaintiffs were subsequently acquitted and sued the officers for damages. We affirmed dismissal of the plaintiffs' action, holding that Iowa does not recognize an independent tort for negligent investigation of crime by law enforcement officers. Id. at 300. We said:

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.

Id. at 301. We choose not to depart from the rule of Smith and its rationale. Instead we apply here a sound corollary of that rule of non-liability of peace officers investigating criminal activity. The rule not only applies when the person allegedly harmed by a negligent investigation has been charged and arrested, but also when the allegedly negligent investigation results in no arrest. Police officers necessarily exercise broad discretion in investigating accidents and determining the...