Iseminger v. Black Hawk County, 53509

• Decision Date: 10 March 1970
• Docket Number: No. 53509,53509
• Parties: Helen ISEMINGER, Administratrix of the Estate of Paul A. Iseminger, Deceased, Appellant, v. BLACK HAWK COUNTY, Iowa, and the Board of Supervisors of Black Hawk County, and F. W. Robbins, William J. Beck, Don C. Price, Donald F. Sage, and Clarke Lichty, Members thereof, and Black Hawk County Conservation Board, and Robert Hare, William Robinson, Wayne Foulk, Robert Hughes, and Everett Morris, Members of said Black Hawk County Conservation Board, Appellees.
• Court: Iowa Supreme Court

Page 374

175 N.W.2d 374

Helen ISEMINGER, Administratrix of the Estate of Paul A. Iseminger, Deceased, Appellant, v. BLACK HAWK COUNTY, Iowa, and the Board of Supervisors of Black Hawk County, and F. W. Robbins, William J. Beck, Don C. Price, Donald F. Sage, and Clarke Lichty, Members thereof, and Black Hawk County Conservation Board, and Robert Hare, William Robinson, Wayne Foulk, Robert Hughes, and Everett Morris, Members of said Black Hawk County Conservation Board, Appellees.

No. 53509.

Supreme Court of Iowa.

March 10, 1970.

J. R. McManus, and Leo S. Ballard, Des Moines, for appellant.

Roger F. Peterson, County Atty., and Reed, Merner, Sindlinger, Baker & Sabbath, Cedar Falls, and Swisher & Cohrt, Waterloo, for appellees.

LARSON, Justice.

In an action at law commenced on June 21, 1968, plaintiff, as administratrix of the estate of her deceased son, Paul A. Iseminger, sought recovery in damages for his death by drowning on June 30, 1966, in a gravel pit pool located in Black Hawk Park, a duly established park in Black Hawk County, Iowa. She based her cause of action against Black Hawk County, the County Board of Supervisors and its members, and the County Conservation Board and its members, upon the negligence of the defendants in establishing, controlling, maintaining and operating the park in which the gravel pit pool was located, and upon the operation of the park and pool in such a manner as to create and maintain a nuisance therein.

Pursuant to a motion to dismiss filed July 23, 1968, raising the doctrine of governmental immunity as a defense, joined in by all defendants, the trial court sustained the motion and rendered judgment against plaintiff for costs on October 17, 1968. Plaintiff appeals. We affirm.

In her propositions relied upon for reversal appellant contends: (1) The trial court erred in holding that defendant goverinmental corporations are not liable for injuries and damages due to dangerous conditions resulting from negligence, misfeasance or nonfeasance, in governmental matters, because tort liability may arise if a governmental corporation negligently fails to perform its duty and dangerous conditions result which cause injury to one properly availing himself of the tendered services. (2) The trial court erred in ruling that the immunity of a governmental corporation for acts done in the performance of governmental functions extends to cases of personal injury or death resulting from a nuisance created and maintained by such a corporation, because it is liable for such injuries even if the nuisance was created or maintained in the course of the discharge of public duties or governmental functions. (3) The doctrine of sovereign immunity is not available to the individual defendants as a defense to the negligence count in plaintiff's petition or the nuisance count, because since governmental corporations are liable, the individual defendants are also personally liable.

We have substituted the words 'government corporation' for 'municipal corporation' used by appellant in these propositions in view of the fact that governmental immunity laws relating to municipal corporations would, as we shall point out, apply differently to quasi corporations under consideration here.

In Count I of her petition plaintiff alleged (1) that the defendant Black Hawk County is a political subdivision and agency of the State of Iowa, and the individual defendants named are its members; that the defendant Black Hawk County Conservation Board is also a political subdivision and agency of Black Hawk County and of the State of Iowa, and the individual defendants named are its members; (2) that under and by virtue of the provisions of chapter 332, Code 1966, and chapter 111A of the Code, the County and Conservation Board had the power to acquire, develop, maintain, administer, control, plan, preserve, and make available to the public, public parks, preserves, parkways, playgrounds, recreational centers, and other recreational areas; (3) that the defendant County had established the defendant Conservation Board pursuant to statutory authority, that it had selected and appointed the members of the defendant Conservation Board, that it had acquired the land where Black Hawk Park is situated in the County, had employed representatives to operate the park as a recreational area for the benefit of the inhabitants of the County, and that it has thereafter controlled, maintained, administered, planned, developed, and operated it as a recreational facility; (4) that within the park a gravel pit is located which contains a pool of water which has been customarily used by the public as a swimming pool and swimming area, to the knowledge of defendants; that by so establishing, controlling, maintaining, administering, and operating said park, the defendants invited the public, generally, including plaintiff's decedent, to use said pool and swimming area, and that within that area there were deep, dangerous water holes, sanbars, drop-offs, and hazardous currents; (5) that plaintiff's son and a companion were wading in this pool on June 30, 1966, when decedent lost his footing and drowned; (6) that defendants negligently failed to perform their duty in the operation of the park and pool, resulting in an unsafe and dangerous condition therein; that because of this breach of duty the plaintiff's decedent drowned; and that they were negligent in the following specifications: (a) in failing to post any warning signs or notices to advise decedent and the public, generally, of the danger in using said pool; (b) in failing to have on duty and to provide and maintain a life-guard to warn the decedent, Paul A. Iseminger, and the public, generally, of the dangers in the use of said pool and the swimming area referred to; (c) in failing to maintain a fence, guardrail, or other barrier to prevent persons using the park from having access to the pool and swimming area mentioned; (d) in failing to maintain and establish adequate and proper safeguards and precautions for the protection of the public, including plaintiff's decedent, to the detriment of the health, welfare, and safety of the public, generally, and of the decedent; (7) that defendants knew, or in the exercise of reasonable care should have known, of this dangerous condition, and that the death of Paul A. Iseminger was the direct and proximate result of defendants' negligence; (8) that the estate of Paul A. Iseminger has been damaged in the sum of $60,000, and this amount together with interest and costs were asked.

In Count II plaintiff realleges parts of Count I and further alleges: (1) that the conditions in the park and swimming area previously alleged were of long standing, were known to all defendants, and that they also knew the public regularly used this area for wading, swimming and bathing; (2) that the pool area had no warning signs or notices, no lifeguard, no depth markers or buoys, and that no examination of the bottom of the pool had been made, that no fences, guardrails, barriers or safeguards of any kind, had been installed, nor had any facilities of first aid or lifesaving for those using the pool been established; (3) that the area as it existed was treacherous and dangerous to the public and constituted a nuisance to the public and plaintiff's decedent; (4) that plaintiff's decedent died as a direct and proximate result of the existence and maintenance of the nuisance created and maintained by defendants in Black Hawk Park; (5) that decedent's estate has been damaged in the amount of $60,000 and judgment is demanded of defendants therefor, plus interest and costs.

In substance, the defendants based their motion to dismiss for failure to state a cause of action on the grounds that (1) they are either political subdivisions (quasi corporations) of the State or members of an administrative board of the County (quasi corporation) and, as such, are insulated and protected as a matter of law from any and all liability for damages resulting from personal injury on the premises, on the theory of governmental or sovereign immunity; (2) that plaintiff has failed to allege any duty breached by defendants giving rise to liability for the death of Paul A. Iseminger; and (3) that as administrative boards, the Board of Supervisors and the Conservation Board lack the capacity to sue or be sued and are as a matter of law not liable for this unfortunate accident.

In the alternative, all defendants moved to strike certain parts of Counts I and II, but only in case their motion to dismiss was overruled. The trial court found no occasion to consider that motion and, due to our conclusion on the motion to dismiss, neither do we.

In its ruling on defendants' motion to dismiss Counts I and II of plaintiff's petition the trial court found that the Black Hawk County Board of Supervisors and the Black Hawk County Conservation Board were performing governmental functions and, as quasi corporations, are entitled to immunity from liability under the circumstances alleged in plaintiff's petition; that under the plaintiff's complaint the defendants were not guilty of maintaining a nuisance within the provisions of section 657.1 of the Code such as would constitute an exception to the general rule of governmental immunity. It further concluded this immunity extends to the individual members of the defendant boards who are made defendants herein. In sustaining the motion as to all defendants, it ordered that the plaintiff's petition be dismissed. On October 17, 1968, judgment was entered accordingly.

I. A pleading which does not state a claim on which any relief can be granted is subject to dismissal when challenged by a timely motion to dismiss. Rule 104, R.C.P. Also see Hinrichs v. Iowa State Highway Comm., 260 Iowa 1115, 1128, 152 N.W.2d 248, 256; Newton v. City of Grundy Center, 246 Iowa 916, 921, 70 N.W.2d 162, 165.

As already indicated, we are here limited to the...