Jahnke v. Incorporated City of Des Moines, 54586

• Decision Date: 11 November 1971
• Docket Number: No. 54586,54586
• Citation: 191 N.W.2d 780
• Parties: Ronald Eugene JAHNKE, a Minor Child, by his Father and Next Friend, Frank Jahnke, and Frank Jahnke, Appellants, v. The INCORPORATED CITY OF DES MOINES, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 780

191 N.W.2d 780

Ronald Eugene JAHNKE, a Minor Child, by his Father and Next Friend, Frank Jahnke, and Frank Jahnke, Appellants, v. The INCORPORATED CITY OF DES MOINES, Iowa, Appellee.

No. 54586.

Supreme Court of Iowa.

Nov. 11, 1971.

Virgil Moore, Des Moines, for appellants.

Jack L. Briggs, Des Moines, for appellee.

LeGRAND, Justice.

This action seeks recovery for personal injuries sustained by Ronald Eugene Jahnke, a minor child, and for medical expense incurred on his behalf by his father, Frank Jahnke, allegedly caused by the negligence of defendant city in failing to properly protect said minor from the riotous conduct of a large and unlawful assemblage of citizens in the city of Des Moines on or about June 26, 1970. We refer to the minor as the sole plaintiff.

This appeal reaches us on a challenge to the trial court's order dismissing plaintiff's petition for failure to state a cause of action upon which any relief could be granted. In testing the sufficiency of the petition, we accept the allegations thereof as true. Hagenson v. United Telephone Company (Iowa 1969), 164 N.W.2d 853, 855; State Farm Mutual Automobile Insurance Co. v. Nelson (Iowa 1969), 166 N.W.2d 803.

On June 26, 1970, plaintiff was a passenger in a car driven by his father on University Avenue in the city of Des Moines. He was struck and injured by 'concrete blocks and other large hard objects thrown by a large group of individuals' as the vehicle passed along this heavily traveled thoroughfare. Plaintiff alleges the City of Des Moines was negligent in failing to warn plaintiff of the danger to passing motorists from the people congregated near the street, although they were aware of such danger; in failing to close the street and divert the vehicle in which plaintiff was traveling away from a course of known danger; in failing to supervise and control a public street and to keep the same open and free from nuisance; and in failing to exercise due care to notify plaintiff of a danger known to defendant and unknown to plaintiff.

The City filed a motion asking dismissal of plaintiff's petition on these grounds:

(1) Municipal liability for personal injury inflicted by mobs or riots is based solely on mob violence statutes imposing such liability and not on common law;

(2) Municipalities are immune from liability for tort claims based upon the act or omission of officers or employees of the municipality, exercising due care, in the execution of statutes or ordinances, and

(3) Municipalities are not the insurers of the safety of travelers upon their streets.

Although plaintiff alleges a nuisance, he does not seriously urge that basis of liability and we find no facts set out upon which a finding of nuisance could be bottomed. We therefore limit our discussion to the issue upon which the petition must stand or fall-liability of the city for negligent failure to protect plaintiff from personal injuries by reason of mob violence or riotous conduct.

Similarly, to bring the controversy into sharp focus, we consider only the first ground of the motion to dismiss--that the city is not liable for damage inflicted by a riotous mob in the absence of a statute specifically imposing such liability.

We hold the trial court properly dismissed plaintiff's petition and we affirm.

The question to be answered is whether chapter 613A, enacted by the Sixty-second General Assembly in 1967, making governmental subdivisions, including municipalities, liable in tort to the extent therein set out makes the city responsible for damages inflicted by riots or mobs upon a showing its police force was negligent in carrying out statutory police duties.

Plaintiff insists chapter 613A, The Code, abrogated governmental immunity for all municipal torts; that the circumstances pled do not fall within any of the exceptions contained in section 613A.4; and that he may recover upon proof of negligence by the police in their handling of the disturbance.

The City, on the other hand, maintains that damage resulting from the illegal conduct of mobs or riotous assemblages is not compensable under a statute which discards the defense of governmental immunity, but no more. The City argues such liability arises only if a specific riot or mob violence statute so provides.

Although the City does not delineate its position in these terms, we take it that in order to prevail the City must show the facts alleged by plaintiff--assuming, as we must, their truth--do not fall within the definition of tort in section 613A.2. We say this because liability is prescribed by that statute for All municipal torts except those excluded by section 613A.4. We have already indicated these exceptions have no application here. See Boyle v. Burt, 179 N.W.2d 513, 517 (Iowa 1970), which, although affirmed by operation of law on a four-to-four split, was not challenged on the statement that chapter 613A eliminated 'any common law immunity in tort previously accorded designated various governmental subdivisions' including cities and towns.

The petition and motion to dismiss squarely present for the first time the question of liability for damages inflicted by a mob or resulting from a riot, assuming the municipality or its police department to have been negligent in failing to prevent or control the outbreak. The parties so presented and argued the case, both in the trial court and here. We so consider and decide it now.

If the petition alleges matter constituting a tort under section 613A.2, The Code, the motion to dismiss was improperly sustained since that section imposes liability for All torts except these contained in the four exceptions of section 613A.4, none of which is applicable here. We should mention that the motion to dismiss includes as one of its grounds reliance on the 'due care' exception of the statute. However, we have not considered it in reaching our conclusion.

We hold the petition does not allege the commission of a tort upon which any relief could be granted, and for reasons hereinafter set out, we hold further that a municipality is not liable for mob-inflicted damage, either to personal property or to the person, in the absence of a statute specifically imposing such liability on the city.

Section 613A.2 establishes municipal tort liability as follows:

'Except as otherwise provided in this Chapter, every municipality is subject to liability for its torts or 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.'

We held in Strong v. Town of Lansing, 179 N.W.2d 365 (Iowa 1970), the effect of this language was to remove the defense of governmental immunity from the commission of all torts except as limited by section 613A.4, under which four classes of claims are exempted from the operation of the statute.

Under section 613A.1, a tort is defined as 'every civil wrong which results in wrongful death or injury to person or injury to property and includes but is not restricted to actions based upon negligence, breach of duty, and nuisance.'

All definitions of tort include as the starting point the violation of a duty running from the alleged wrongdoer to his victim. Black's Law Dictionary, Revised Fourth Ed., page 1660, 52 Am.Jur., Torts, section 2, page 362, and section 10, page 367; 86 C.J.S. Torts § 6, page 926; Gendler v. Sibley State Bank, 62 F.Supp. 805, 813 (District Court, Southern District of Iowa 1945).

It is here that plaintiff fails, for under the facts alleged in his petition, All authority holds there is no duty running from the municipality, or its officers, to the plaintiff Individually which would entitle him to recover from the city for its failure to protect him from the ravages of a mob or riot. There is no authority to the contrary.

Although plaintiff does not cite us to these statutes, apparently he relies upon section 368.7, sections 368A.17 and 368A.18, and section 743.7 of The Code, all of which deal with the duties and powers of police officers and with the control of riots and mobs. Section 368.7 provides in part that cities shall have the power to restrain and prohibit 'riots, noise, disturbance, and disorderly assemblies, and to punish any person engaged in riotous, noisy, or disorderly conduct.' Sections 368A.17 and 368A.18 direct marshals and police officers to 'suppress all riots, disturbances and breaches of the peace.' Section 743.7 makes it a misdemeanor for an officer to neglect his duty in the suppression of a riotous assembly.

The decided cases universally hold such statutes may not be a springboard from which an individual plaintiff can recover damages for injuries inflicted upon his person or property as a result of mob action. Recovery for such damage must be based upon a statute which specifically authorizes it; a general tort statute does not permit recovery therefor.

The subject to recovery for damages inflicted upon citizens by mobs is not a new one, although it has attained increased importance in recent years because of the frequency of riots and violent demonstrations. Statutes permitting recovery for damages resulting from mob violence date back to the 13th Century in England. A number of our states have had such laws since before 1900. There are now more than twenty which have such statutory remedies. Note; 81 Harvard Law Review (1967), 653; Comment: 'The Aftermath of the Riot: Balancing the Budget,' (1968) 649, 684; 50 Cornell Law Quarterly (1965), 699, 704.

Some of these allow recovery only for property damage, a few for both property damage and personal injury. Most are strict liability statutes which compensate one who is damaged by a riot without proof of fault on the part of the municipality, although several require proof of negligence. Important to our discussion is the fact there is not a single reported case of recovery for such damage without a Specific mob violence statute....