Sanon v. City of Pella

• Decision Date: 26 June 2015
• Docket Number: No. 13–1438.,13–1438.
• Parties: Roselene SANON and Nemi Sanon, individually and as administrators of the Estate of Nehmson D. Sanon, and Paulette Cezil Pogue, individually and as administrator of the Estate of Gael Cezil Hrispin, Appellants, v. CITY OF PELLA, Appellee.
• Court: Iowa Supreme Court

865 N.W.2d 506

Roselene SANON and Nemi Sanon, individually and as administrators of the Estate of Nehmson D. Sanon, and Paulette Cezil Pogue, individually and as administrator of the Estate of Gael Cezil Hrispin, Appellants

v.CITY OF PELLA, Appellee.

No. 13–1438.

Supreme Court of Iowa.

June 26, 2015.

Thomas J. Duff of Duff Law Firm, P.L.C., Des Moines, and Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for appellants.

Jason C. Palmer, Mark L. Tripp, and Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.

Opinion

WIGGINS, Justice.

The parents of two children filed a claim for negligence against a city following a drowning in the municipal pool. The parents also filed a constitutional due process claim against the city for the drowning incident under the state-created danger doctrine. The city filed a motion for summary judgment claiming it had statutory immunity under Iowa Code section 670.4(12) (2009) as to the negligence claims.¹ Section 670.4(12) grants the city immunity from liability, unless the parents' claim is based upon an act or omission of an officer or employee of the city that constitutes a criminal offense. The city also alleged there was not a genuine issue of material fact to allow the claim under the state-created danger doctrine to proceed.

The district court granted summary judgment on all of the parents' negligence claims except that part of the claim in which the parents allege the city employee's acts constituted the criminal offense of involuntary manslaughter. The district court also found there was no genuine issue of material fact as to the due process claim. Both parties filed applications for interlocutory appeal, which we granted. After submission of this case to our court, the parents withdrew their argument concerning the due process claim. Thus, we will not reach that issue in this appeal and affirm the district court's dismissal of the due process claim.

In this appeal, we conclude the parents have alleged the city violated administrative rules constituting criminal offenses under the Iowa Code. Thus, if the city violated these rules, the city is not entitled to immunity under Iowa Code section 670.4(12). We also hold the parents must prove by a preponderance of the evidence that the city's acts or omissions constitute involuntary manslaughter to remove it from the immunity granted by section 670.4(12). Thus, we remand the case to the district court for further proceedings.

I. Background Facts and Proceedings.

The City of Pella began construction of the Pella Aquatics Center in 2003 and completed the aquatics center by 2004. The deep end of the outdoor pool is thirteen feet deep. The pool features diving boards and slides. The City constructed the pool with underwater lighting to illuminate the pool at night. By late 2004, rust appeared on the back of the light sockets of the underwater lights in the pool. In early 2005, Jan Bensink, the City's aquatics manager, and Kevin Vos, the community services director, decided the aquatics center should no longer use the underwater lights, even though the lights still worked.

Bensink and Vos did not consult anyone within the City's electrical department, the architect, or the engineer responsible for the lighting system before making the decision to discontinue using the underwater lights. State regulations require lighting sufficient “so that all portions of the swimming pool, including the bottom and main drain, may be clearly seen.” Iowa Admin. Code r. 641—15.4(4)(m )(2)(1) (2009). The rules also provide

[a] swimming pool that is less than 8 ft deep shall be closed if the grate openings on the main drain are not clearly visible from the deck. A swimming pool that is 8 ft deep or deeper shall be closed if the main drain is not clearly visible from the deck.

Id. r. 641—15.4(2)(c ).

The City did not arrange for additional overhead lighting to compensate for the lack of underwater lighting or hire additional lifeguards. The City rented the aquatics center's facilities for nighttime pool parties twenty to thirty times a year. The City did not turn on the underwater lights for any of these events.

In January 2006, the City removed a portion of the pool deck to inspect the electrical system and discovered numerous construction defects. Central Electric Company (CEC) was responsible for the electrical work on the pool, including the underwater lighting system. The City filed suit against CEC, alleging breach of contract, breach of express and implied warranties, negligence, and fraud. At trial on these claims in July 2010, two expert witnesses testified for the City about the lighting. Michael Fisher, an architectural engineer, opined the overhead lighting did not meet the requirements of the Iowa Department of Public Health. Fisher also testified that to enhance the overhead lighting to meet safety standards would require four new light poles, at an estimated cost of $97,500. Kurt Ewert, the electrical design engineer for the pool project, testified “using the overhead lighting only right now [did] not meet the Iowa regulations.” He testified underwater lighting is safer than overhead lighting, which creates glare off the water surface. Neither Fisher nor Ewert actually visited the pool or measured the lighting themselves; instead, they based their conclusions on information provided to them by the City.

Vos testified he was ultimately in charge of the pool. He stated he had concerns about letting his own children swim in the pool at night without underwater lights:

Q. Now, you mentioned that you had—you had personal concerns about the underwater lights, correct? A. Correct.

Q. And you were concerned about allowing your children to swim at the pool, is that correct? A. Correct, during the nighttime.

Q. But you allowed everyone else's children to swim at the pool and took their money, correct? A. It was according to the city. They allowed that or whatever. I as a family member or as a parent or whatever, that was just my concern for my kids or whatever. But that—that's the way I made that decision.

On July 14, 2010, Gael Chrispin, age fourteen, and Nehmson Sanon, age fifteen, drowned at the Pella Aquatics Center. The boys, both from Kansas City, Missouri, were participants in a sports camp operated by the Fellowship of Christian Athletes (FCA). The camp began on July 12 at the campus of Central College in Pella. On the evening of July 14, the FCA rented the aquatics center for a private pool party after the normal pool closing time. The City, for a fee of $604, allowed the FCA exclusive use of the indoor and outdoor pool facilities between 8:30 p.m. and 9:30 p.m. Approximately 175 campers and 21 FCA counselors attended the pool party. The City provided lifeguards. The boys' parents had completed and signed a “student Participant Permission/Waiver Form” for the FCA and indicated their sons were nonswimmers. The FCA did not provide those waivers to the City. No one told the City or its lifeguards that the campers included nonswimmers.

The water in the pool became murky that night to the point the lifeguards on the pool deck could not see the drain at the bottom of the deep end.² The underwater lighting system was not in use that night, although it was operable. During the party, the boys used the drop slide in the deep end of the large outdoor pool, and the lifeguards on duty did not notice the boys failed to surface and exit the pool. At the end of the party, the FCA discovered the boys' absence. At that time, the lifeguards found the boys' bodies in the deep end of the pool near the main drain.

On March 21, 2012, the decedents' parents, individually and as administrators of the decedents' estates, filed a civil action against the City and the FCA.³ The petition alleged negligence, conduct constituting a criminal offense, premises liability, a constitutional due process violation, and loss of consortium. On May 21, the City filed an answer and a motion for summary judgment based on the immunity in Iowa Code section 670.4(12). The City alternatively argued the parents could not meet the elements of the due process claim. The parents filed a resistance and amended their petition on August 31, adding a claim for nuisance and alleging that the acts or omissions of the City constituted involuntary manslaughter, a criminal offense avoiding the immunity. The parents also claimed the deficiencies in water clarity and lighting of the pool constituted a criminal offense as a violation of the rules promulgated by the department. The FCA joined in the parents' resistance to the City's motion for summary judgment.

The district court granted partial summary judgment based on immunity, dismissing the remaining tort theories “to the extent those claims are premised on alleged violations of applicable administrative regulations.” The court, however, denied the City's motion for summary judgment to the extent that the undisputed acts or omissions of the City could constitute involuntary manslaughter as defined in Iowa Code section 707.5(1).

Both the parents and the City filed motions to amend or enlarge the summary judgment ruling, asking the court to clarify the immunity on the claim of negligent supervision. The City also asked the court to determine the burden of proof for the criminal offense of involuntary manslaughter, arguing the court should require the parents to prove their claims beyond a reasonable doubt. On August 12, the district court issued a ruling clarifying that the claims of negligence and premises liability, including negligent supervision, survived to the extent they could constitute the criminal offense of manslaughter. The court declined to set the burden of proof for the offense of manslaughter at trial because to do so would be to “render an advisory opinion.” The parents voluntarily dismissed their claim for nuisance after the court's ruling on the motion for summary judgment.

The City and the...