Lloyd v. State

Decision Date16 March 1977
Docket NumberNo. 2-57389,2-57389
PartiesJoan M. LLOYD, Appellant, v. STATE of Iowa, Appellee. Donald A. POTTER, Appellant, v. STATE of Iowa, Appellee.
CourtIowa Supreme Court

John K. von Lackum and David A. Elderkin, of Wadsworth, Elderkin, Pirnie & von Lackum, Cedar Rapids, for appellants.

Richard C. Turner, Atty. Gen., John E. Beamer, Special Asst. Atty. Gen., Joseph S. Kelly, Jr., and Fred M. Haskins, Asst. Attys. Gen., for appellee.


MASON, Justice.

This is a consolidation of appeals by plaintiffs in two tort claim cases from the trial court's ruling granting the State summary judgment.

August 21, 1973, plaintiffs, Joan M. Lloyd and Donald A. Potter, filed petitions seeking relief under the Iowa Tort Claims Act, chapter 25A, The Code, 1973, based upon the alleged negligence of the State by and through the actions of the director of the Bureau of Adult Corrections, Department of Social Services. Plaintiffs' claims for relief were subsequently consolidated for trial. May 21, 1974, the trial court granted the State a summary judgment on both claims and that action is the subject of plaintiffs' appeal herein.

In October of 1968 Jack Leonard Lemburg was sentenced to the Iowa State Penitentiary at Fort Madison for a term not to exceed one year. While in residence at said institution Lemburg was transferred to the Iowa Security Medical Facility at Oakdale for evaluation pursuant to section 246.17, The Code, which provides:

"When the state director has reason to believe that a prisoner in the penitentiary or said reformatory, whose sentence has expired, is mentally ill, it shall cause examination to be made of such prisoner by competent physicians who shall certify to the state director whether such prisoner is in good mental health or mentally ill. The state director may make further investigation and if satisfied that he is mentally ill, he may cause him to be transferred to one of the hospitals for the mentally ill, or may order him to be confined in the Iowa security medical facility."

Dr. Douglas N. Johnson, a psychiatrist and clinical director at the Oakdale facility during Lemburg's evaluational visit there, certified the conclusions of the staff to Nolan Ellandson, Director of the Bureau of Adult Corrections, on March 28, 1969, providing in pertinent part as follows:

"On examination, the patient shows no signs of psychosis, neurosis or brain damage. * * *

" * * *

"Staff diagnosis is anti-social personality of severe degree. * * * Emotional instability should also be noted.

"An anti-social personality does not, in the opinion of staff psychiatrists (and we think of most other psychiatrists in the State of Iowa) constitute a mental illness. At the same time, Mr. Lemburg, with his severely disordered personality, certainly is not mentally healthy. We detected nothing in our evaluation that allows us reasonably to predict a change in his behavior so that if he is released he would, in our opinion, continue with the extremely dangerous behavior which has characterized his past. Whether these opinions are sufficient to allow commitment under Section 246.17 of the 1966 Iowa Code, we do not know. We must, therefore, leave that to your judgment. Society certainly deserves protection from the acts of Mr. Lemburg."

Evidently, Dr. Johnson's report did not lead Director Ellandson to believe Lemburg was mentally ill because on April 27, 1969, Lemburg was transferred to the custody of federal authorities pursuant to a federal detainer and was imprisoned at Leavenworth, Kansas, until March 1970.

February 21, 1971, Lemburg allegedly severely beat and sexually assaulted plaintiff Lloyd outside her Cedar Rapids home. Lemburg was apprehended shortly thereafter and during a recess of his preliminary hearing allegedly attacked plaintiff Potter, an employee of the Cedar Rapids Police Department. There is no evidence of record pertaining to the charges, if any, filed against Lemburg as a result of these incidents or the dispositions thereof.

Pursuant to section 25A.5, The Code, following the filing of written claims with the state appeal board and the failure of that board to make final dispositions of plaintiffs' claims, plaintiffs commenced this action in the Linn District Court. Plaintiffs Lloyd and Potter seek $500,000 and $150,000 in damages, respectively, asserting as a basis for recovery the negligence of the State through the actions of its employee Ellandson in releasing Lemburg from custody.

Shortly after plaintiffs' petitions were filed the State filed a motion to dismiss for failure to state a claim upon which relief might be granted. The trial court overruled the first division of said motion in a ruling dated October 5, 1973, and noted therein the State had withdrawn the second division thereof. In the latter division the State had argued Ellandson's decision not to commit Lemburg "was clearly a discretionary one" as evidenced by the provisions of section 246.17 and thus could not support an action under chapter 25A because clearly excepted therefrom by section 25A.14(1) which as then in force provided:

"The provisions of this chapter shall not apply to:

"1. Any claim based upon an act or omission of an employee of the state, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion be abused."

The State answered plaintiffs' petitions by denying most of the operative allegations contained therein. Division 2 of the State's answer set out a proximate cause defense based upon the "intervening federal prison term" served by Lemburg which allegedly "broke the chain of causation." The discretionary function exception established by section 25A.14(1) was not set out with reference to that statutory provision as a defense to plaintiffs' claims for relief.

Following the aforementioned consolidation order the State filed the motion for summary judgment which gives rise to the ruling which is challenged by plaintiffs' appeal. Said motion was in two divisions but only the first is material hereto. The essence of that division was that even if a prisoner is determined to be mentally ill within the meaning of section 246.17 that section does not require the director to commit said prisoner but leaves that decision to the discretion of the director.

Plaintiffs resisted the motion for summary judgment alleging the existence of numerous genuine fact issues which therefore made summary judgment unavailable to the State.

May 21, 1974, the trial court ruled on the State's motion for summary judgment, concluding in part as follows:

"There is no genuine issue of fact present but that the Defendant's employees did the acts, or omitted to do acts complained of in the specifications of negligence, but such acts are discretionary (may make further investigation, may cause * * * or may order) on the part of the employee under Section 246.17 and are an exception to the provisions of Chapter 25A and after a trial it would be the duty of the Court to direct a verdict for the Defendant."

Plaintiffs maintain the trial court erred in sustaining the State's motion for summary judgment and in support thereof assert the following contentions:

1. The discretionary function exception of section 25A.14(1) was not properly raised in the instant case as there was no reference to it in the State's motion for summary judgment.

2. The discretionary function exception of section 25A.14(1) was not properly before the trial court as the same was an affirmative defense which was not pled in the State's answer.

3. The State waived its right to assert the discretionary function exception of section 25A.14(1) and is now estopped from asserting it.

4. The trial court went far beyond the apparent issue raised in the State's motion for summary judgment, which issue, assuming arguendo a sufficient undisputed factual basis, should have been decided in favor of plaintiffs.

5. The trial court improperly treated the State's motion for summary judgment as a motion to dismiss and considered the facts set forth in plaintiffs' petitions as undisputed for purposes of the motion, notwithstanding that said facts were denied in the State's answer.

6. Summary judgment should not have been granted because under no conceivable circumstances could the record in question have been construed to show a right to judgment with such clarity as to leave no room for controversy or establish affirmatively that plaintiffs could not prevail.

I. Prior to enactment of chapter 25A, The Code, known as the "Iowa Tort Claims Act," which became effective March 30, 1965, our courts lacked jurisdiction over suits brought against the state or its agencies sounding in tort. This court had held in Montandon v. Hargrave Construction Co., 256 Iowa 1297, 130 N.W.2d 659, the doctrine of governmental immunity to tort actions was jurisdictional.

The holding in Montandon was modified by enactment of chapter 25A to the extent sovereign immunity for suits in tort brought against the State or its agencies was waived under the provisions of the Tort Claims Act.

Section 25A.14 makes clear the legislature did not intend the Iowa Tort Claims Act to be a waiver of sovereign immunity in all instances. It was designed primarily to remove sovereign immunity for suits in tort with certain specified exceptions set out in the statute.

Under the Act the State or its agencies is subject to suit in tort as an individual only in the manner and to the extent to which consent has been given by the legislature. The immunity of the State is from suit rather than from liability and remains the rule rather than the exception. See in...

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