Sankey v. Richenberger, 89-642

• Decision Date: 23 May 1990
• Docket Number: No. 89-642,89-642
• Parties: Joann E. SANKEY, Richard R. Sankey, and Kristine Sankey, By Her Next and Best Friend, Richard Sankey, Appellants, v. Jerry RICHENBERGER, Appellee. Ronald DUPREE and Mary Dupree, Appellants, v. Jerry RICHENBERGER, Appellee.
• Court: Iowa Supreme Court

Page 206

456 N.W.2d 206

Joann E. SANKEY, Richard R. Sankey, and Kristine Sankey, By Her Next and Best Friend, Richard Sankey, Appellants, v. Jerry RICHENBERGER, Appellee.

Ronald DUPREE and Mary Dupree, Appellants, v. Jerry RICHENBERGER, Appellee.

No. 89-642.

Supreme Court of Iowa.

May 23, 1990.

Thomas S. Reavely, Des Moines, for appellants.

William J. Cahill of Hirsch, Adams, Hoth, Krekel, Putnam & Cahill, Burlington, for appellee.

Considered by McGIVERIN, C.J., and LARSON, CARTER, LAVORATO, and NEUMAN, JJ.

NEUMAN, Justice.

The plaintiffs in this case are the unfortunate victims of a shooting spree that occurred in the Mt. Pleasant city council chambers on December 10, 1986. Their suit is directed at defendant Jerry Richenberger, the Mt. Pleasant police chief, for his alleged failure to take action to subdue the gunman and protect council members Joann Sankey and Ronald Dupree from injury. The district court ruled as a matter of law that Richenberger had no duty to these individual plaintiffs under the circumstances. We agree and affirm the district court's entry of summary judgment for the defendant.

I. Scope of Review.

Plaintiffs claim this case was not ripe for summary judgment because material facts are in dispute concerning the action Richenberger should have taken to protect the plaintiffs. See Iowa R.Civ.P. 237(c) (moving party entitled to judgment as a matter of law only if supporting documents show there is no genuine issue as to any material fact). While we agree that negligence actions are seldom capable of summary adjudication, see Iowa R.App.P. 14(f)(10), the threshold question in any tort case is whether the defendant owed the plaintiff a duty of care. Wilson v. Nepstad, 282 N.W.2d 664, 667 (Iowa 1979). Whether such a duty exists is a question of law. Anthony v. State, 374 N.W.2d 662, 668 (Iowa 1985).

As we view the record before us in the light most favorable to the plaintiffs, we agree with the district court that the facts underlying the plaintiffs' claim of duty are not disputed. Because the only issue is the legal consequences flowing from those undisputed facts, resolution by way of summary judgment is proper. Emmet County State Bank v. Reutter, 439 N.W.2d 651, 653 (Iowa 1989). Our review is for the correction of errors at law. Id.; Iowa R.App.P. 4.

II. Background Facts and Proceedings.

On December 10, 1986, the Mt. Pleasant city council met in a regularly scheduled session in the council chambers. Defendant Jerry Richenberger, along with other administrative department heads, was in attendance at the meeting to answer questions that might arise concerning the police department. Richenberger was seated on the dais along with the mayor and council members. At the specific request of the mayor, he was unarmed.

Just after 9:00 p.m., Ralph Oren Davis entered the council chambers and went directly to Councilman Ronald Dupree. Because the City and Davis were engaged in a dispute over Davis' sewer bill, Davis' appearance was not unusual and all assumed he was approaching the dais to return a sewer bill. Instead, Davis pulled a revolver out of his coat and began firing at Dupree.

After the first shot was fired, council members, staff persons and Richenberger dropped to the floor beneath the council table. Richenberger's first thought was to get his shotgun out of his squad car in the parking lot. After a few moments, he and the others got up and ran along the east wall of the council chambers to exit the east and north doors. As they were leaving, they heard more shots being fired.

Richenberger was unable to get his firearm because the keys to his car were in the pocket of his coat hanging in the mayor's office. The city attorney, who had remained in the chambers, eventually tackled Davis, but not before Davis had shot Councilwoman Joann Sankey and killed the mayor, Edd King. Meanwhile, Richenberger called for help and then returned to the council chambers to assist in Davis' arrest.

Sankey and Dupree, joined by their spouses and Sankey's minor daughter, sued Richenberger for negligence and gross negligence on grounds that plaintiffs have summarized on appeal as "failing to take the appropriate action(s) after Mr. Davis began firing to stop the carnage at the city hall in Mt. Pleasant the evening of December 10, 1986." Sankey and Dupree also maintained claims against the city for workers' compensation benefits. Because of these claims, the trial court ruled preliminarily that Richenberger was entitled to partial summary judgment on the negligence counts of plaintiffs' petition. It reasoned that because the plaintiff council members and Richenberger were all employed by the city, the parties were co-employees and Richenberger's liability, if any, was limited by the gross negligence standard of Iowa Code section 85.20. That ruling is not challenged on appeal.

With only the allegations of gross negligence remaining, Richenberger moved for summary judgment on two grounds: (1) that the uncontroverted facts do not support the contention that he owed either a common law or statutory duty to these plaintiffs; and (2) that the facts fail, as a matter of law, to establish gross negligence. The district court did not find it necessary to reach the gross negligence issue for it ruled, as a matter of law, that Richenberger owed no legal duty to protect these plaintiffs from Davis' unanticipated assault. From summary judgment for Richenberger, plaintiffs now appeal.

III. Arguments on Appeal.

Plaintiffs advance two principal arguments to support reversal. First, they claim that the city ordinances under which the police department functions create the legal duty of protection upon which Richenberger's liability for gross negligence is premised. ¹ In the alternative, they argue that Richenberger's affirmative action of leaving the council chambers to get his weapon demonstrates that he assumed a duty of care toward these plaintiffs which should be actionable if executed in a grossly negligent manner. For the reasons which follow, we find no merit in plaintiffs' contentions.

First, although a statute may articulate a duty or standard of care applicable to the performance of a governmental function, it does not thereby create a cause of action. M.H. by and through Callahan v. State, 385 N.W.2d 533, 537 (Iowa 1986). An actionable duty is defined by the relationship between individuals; it is a legal obligation imposed upon one individual for the benefit of another person or particularized class of persons. Larsen v. United Federal Sav. & Loan Ass'n, 300 N.W.2d 281, 285 (Iowa 1981); Wilson, 282 N.W.2d at 667; Wittrup v. Chicago & Northwestern Ry., 226 N.W.2d 822, 823 (Iowa 1975). We read nothing in the Mt. Pleasant city ordinances which would create a particularized duty running from the police chief to the council members that could be distinguished from the police chief's general duty to keep the peace in Mt. Pleasant. Although technically "on duty," Richenberger was not present at the council meeting to provide security for council members. All of the sworn testimony submitted in connection with the summary judgment motion confirms his role at the meeting as that of administrative department head only.

Plaintiffs claim this public duty/private obligation dichotomy has been effectively eliminated by our abrogation of the public duty doctrine in Wilson v. Nepstad, 282 N.W.2d at 673. Plaintiffs' reliance on Wilson, however, is misplaced. Wilson involved a suit by tenants against a city for fire damage resulting from a negligent building inspection. Id. at 666. We reversed the trial court's dismissal for failure to state a cause of action, reasoning...