Keystone Elec. Mfg., Co. v. City of Des Moines

• Decision Date: 25 November 1998
• Docket Number: No. 96-2188,96-2188
• Citation: 586 N.W.2d 340
• Parties: KEYSTONE ELECTRICAL MANUFACTURING, CO., Appellant, v. CITY OF DES MOINES, Appellee. MERCHANTS WHITE LINE WAREHOUSING, INC., Reppert Transfer & Storage Co., and Ackerman Auto Parts, Co., Appellees, v. CITY OF DES MOINES, Appellant.
• Court: Iowa Supreme Court

Page 340

586 N.W.2d 340

KEYSTONE ELECTRICAL MANUFACTURING, CO., Appellant, v. CITY OF DES MOINES, Appellee.

MERCHANTS WHITE LINE WAREHOUSING, INC., Reppert Transfer & Storage Co., and Ackerman Auto Parts, Co., Appellees, v. CITY OF DES MOINES, Appellant.

No. 96-2188.

Supreme Court of Iowa.

Nov. 25, 1998.

Jerry F. Foxhoven, Des Moines, for appellant Keystone.

Roy M. Irish of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker & Ordway, L.L.P., Des Moines, and Bruce Bergman, City Attorney, for City of Des Moines in both appeals.

Patrick W. Brick and James E. Brick of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, P.C., Des Moines, for appellees, Merchants, et al.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, NEUMAN and SNELL, JJ.

McGIVERIN, Chief Justice.

Two actions were brought against defendant city of Des Moines (hereinafter "City" ) for damages to plaintiffs' property arising out of the flood of 1993. The main questions here involve whether the City is exempt as a matter of law from liability under the discretionary function and emergency response exceptions to liability under Iowa's Tort Liability of Governmental Subdivisions Act, Iowa Code section 670.4(3), (11) (1995), and the act of God defense, for failure to fill an opening in a river levee just prior to the flood.

Upon our review, we conclude that it cannot be said as a matter of law under this record that the City is exempt from liability under those defenses. Therefore, we affirm a summary judgment ruling against the City in one action and reverse a summary judgment ruling favorable to the City in the other action. We remand for further proceedings.

I. Background facts and proceedings.

This appeal involves two suits. One is by plaintiff Keystone Electrical Manufacturing, Co. (Keystone) against the city of Des Moines alleging that the City was negligent in failing to fill an opening in a levee just prior to and during the flood of 1993, and that the City's negligence was a proximate cause of the flood damage to Keystone's property. In a separate proceeding, three other parties, plaintiffs Merchants White Line Warehousing, Inc., Reppert Transfer and Storage Co., and Ackerman Auto Parts Co., Inc. (Merchants), also filed suit against the City asserting essentially the same type of claim. We will collectively refer to plaintiffs in both suits herein as plaintiffs.

The district court's summary judgment ruling in plaintiff Merchants case adequately states the background facts and we adopt it as our own:

In the 1960's, the United States Army Corps of Engineers (hereinafter Corps of Engineers) designed a "local flood protection plan" for the City of Des Moines (hereinafter City). The Corps of Engineers designed the plan to withstand what is known as a "100-year flood" level. More precisely, the plan could withstand a flow of 60,000 c.f.s. [cubic feet per second] in the Raccoon River, and a flow of 40,000 c.f.s. in the Des Moines River. The Corps of Engineers erected an embankment on a segment of the Raccoon River located south of Central Campus and 1,000 feet west of Fleur Drive in Des Moines. The purpose of the embankment was to provide flood protection from the Raccoon and Des Moines Rivers. One section of the embankment was left open for railroad tracks. In addition, the Corps of Engineers placed a river gauge on another portion of the Raccoon River at S.W. 18th Street in Des Moines. The river gauge would need to record a crest of 24 feet in order for the water from the Raccoon River to rise to the height of the embankment.

The Corps of Engineers also recommended that the City follow a simple criterion to commence flood emergency operations. One convenient criterion would be the daily river forecasts issued by the United States Weather Bureau (hereinafter Weather Bureau) during periods of expected high stages. When the forecasts indicate a substantial rise in the river stage, steps should be promptly taken to execute the preparations for impending floods.

On November 17, 1967, the City adopted the local flood protection plan and accepted responsibility for the operation and maintenance of the facilities created thereunder. The City also devised a "flood emergency plan" which included the recommendations of the Corps of Engineers. According to this plan, the City must maintain contact with the Weather Bureau to assess the timing and severity of impending floods. The primary criterion used by the City to commence flood emergency operations is this information received from the Weather Bureau. The City must evaluate this information as well as other directives and then implement a plan using the best information possible.

From July 4 through July 9, 1993, significant amounts of rain fell over the entire state of Iowa. In response to this deluge, the City held two emergency meetings on July 9, 1993, to prepare for the upcoming floods. On the evening of July 9th, the Weather Bureau predicted that the section of the Raccoon River near the embankment would crest at approximately 21 feet on July 12, 1993; however, this forecast was revised twice the next day. Earlier in the day on Saturday the Weather Service predicted the flood would crest at about 22 feet on July 11, 1993, but later in the evening the prediction was a crest at 24 to 25 feet that evening. Relying solely on the early forecasts and disregarding the warnings of both the West Des Moines Fire Chief, Randy Bracken, and the Chief Forecaster in Iowa for the Weather Service, John Feldt, that a record-shattering flood was imminent, the City took no measures to close the section of the embankment left open for railroad tracks.

On July 10, 1993, between 11 and 12 p.m., water from the Raccoon River started seeping over the embankment and railroad tracks, and eventually flooded the buildings owned by and/or damaged the businesses operated by the Plaintiffs in the "RiverPoint/Dico" area. Prior to this day, the highest river gauge recording at this location had been 19 feet. On this day, the flow of the Raccoon River exceeded the "100-year flood" level. The river gauge recorded a final crest of 26.743 feet at the section of the Raccoon River near the embankment.

Plaintiff Keystone filed a petition against the City on June 27, 1995, asserting that the City had a contractual obligation, through its agreement with the Corps of Engineers, to properly maintain and utilize the local flood control project, and that the City breached its contractual obligation by not filling the section of the embankment left open for railroad tracks. Keystone further claimed that it was harmed by the City's breach of its contractual obligations insofar as it was a third-party beneficiary of the agreement between the City and the Corps of Engineers. The petition also stated a claim for negligence, alleging that the City was "negligent in failing to use due care in the maintenance of, utilization of, and provision of necessary materials for the local flood control project." The alleged result was the flooding of Keystone's building, damage to personal property therein, and past, present, and future loss of business due to defendant City's fault.

On July 6, 1995, plaintiff Merchants filed a petition against the City asserting a negligence claim similar to Keystone's claim, that is, that the City agreed to maintain and operate the flood control project through its agreement with the Corps of Engineers, and that the City was negligent in failing to fill the section in the embankment left open for the railroad tracks, resulting in damage to plaintiffs' buildings, personal property therein, and past and future loss of income from their businesses.

The City filed an answer to each petition and later filed a motion for summary judgment in each case.

The district court (Judge Levin) sustained the City's motion for summary judgment in the Keystone case. The court concluded that the City was immune from liability for any negligence concerning closure of the opening in the embankment because the City's decision was made in connection with an emergency response. See Iowa Code § 670.4(11). Additionally, the court found that the City breached no duty owed to plaintiffs by not closing the opening "because it based its decision on information received by the United States Weather Bureau as it is required to do under the flood emergency plan." Finally, the court determined that the City had an affirmative defense to any claim for negligence based on the fact that the flood was an act of God. The court did not rule on the City's immunity claim under Iowa Code section 670.4(3).

Later, the district court (Judge Needles) overruled the City's motion for summary judgment in plaintiff Merchants case. That court concluded that the City was not immune under the discretionary function exception to liability, see Iowa Code section 670.4(3), because there was a question of fact as to whether the City's decision concerning whether to close the opening in the embankment was a discretionary or ministerial function. Second, the court concluded that the City was not immune from liability under the emergency response exception because it could not be determined as a matter of law whether the City was responding to an emergency. Finally, the court concluded that summary judgment should be denied upon the City's defense of act of God because the issue was "whether there was something that the City was obligated to do to protect the 'RiverPoint/Dico' area in question from the destructive consequences of the rain and flood."

Keystone appeals the district court's ruling sustaining the City's motion for summary judgment in its case. The City was granted an interlocutory appeal from the decision in the Merchants case in which the court overruled its summary judgment motion. We combined these appeals.

The issues raised include: (1) whether the City is immune under the discretionary function exception to liability under Iowa...