Symmonds v. Chicago, M., St. P. & P.R. Co.
Decision Date | 19 May 1976 |
Docket Number | No. 2--57379,2--57379 |
Citation | 242 N.W.2d 262 |
Parties | Addie M. SYMMONDS, Administrator of the Estate of Virgil S. Sprague, Deceased and David W. Herring, Administrator of the Estate of Bertha J. Herring, Plaintiffs, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, et al., Defendants. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, Cross-Petitioner-Appellant, v. SCOTT COUNTY, Iowa, Cross-Petition Defendant-Appellee. |
Court | Iowa Supreme Court |
Randy Duncan, of Duncan, Jones, Riley & Finley, Des Moines, and Robert A. Van Vooren, Davenport, for appellant.
Seymore M. Raben, Davenport, for appellee.
Heard by REYNOLDSON, Acting C.J., and MASON, RAWLINGS, REES and HARRIS, JJ.
This appeal presents the issue whether a county may be liable in damages for failure to place a stop sign on a secondary road at a particularly dangerous railroad crossing where no warning devices were installed by the railroad.
December 17, 1972 at about 12:45 A.M., plaintiffs' decedents were killed when the automobile in which they were riding was struck by a Chicago, Milwaukee, St. Paul and Pacific Railroad Company train operating on tracks owned by Chicago, Rock Island and Pacific Railroad Company. Neither a stop sign on the highway nor any railroad signaling device marked the crossing.
Plaintiffs sued both railroads. The Chicago, Milwaukee, St. Paul and Pacific Railroad Company cross-petitioned against Scott County for indemnity or contribution. This cross-petition alleged the cross was 'a particularly dangerous highway grade crossing,' and the county knew, or should have known, it constituted a hazard. It alleged the county was negligent 'in failing to erect a stop sign at this crossing,' citing § 321.342, The Code, 1971.
At the time of the collision this statute provided:
Scott County filed a motion to dismiss the cross-petition on the ground, Inter alia, the claim 'is exempted under * * * Iowa Code Section 613A.4(3).' Trial court overruled this motion, but on motion to reconsider withdrew the prior ruling, gave cross-petitioner thirty days to amend its cross-petition 'to affirmatively allege some negligent act on the part of Scott County, Iowa,' and ruled if the cross-petition was not so amended it would be dismissed 'for failure to state a cause of action.' When the amendment was not filed within the thirty day period, trial court dismissed the cross-petition.
The cross-petitioner railroad asserts Scott County was under a mandatory duty to place a stop sign at this crossing by virtue of § 321.342, supra, and in any event the petition alleged a situation which, if true, would generate a jury question whether the county was exercising due care in failing to do so.
The county argues the word 'authorized' indicates the placing of such a sign is discretionary and not mandatory. Therefore, 'no duty exists and the suit should be dismissed as per Seiber v. State, supra (211 N.W.2d 698 (Iowa 1973)).'
I. Under a motion to dismiss, the question is whether 'it appears to a certainty a plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claims asserted by him.' Bindel v. Iowa Manufacturing Co. of Cedar Rapids, 197 N.W.2d 552, 555 (Iowa 1972); see In re Estate of Klages, 209 N.W.2d 110, 113 (Iowa 1973).
Overruling or sustaining a motion to dismiss does not depend upon trial court's discretion. It must rest on legal grounds and is subject to review by this court. Board of Supervisors v. Standard Appliance Co., 249 Iowa 438, 440, 87 N.W.2d 459, 461 (1958). Our review is limited, however; we cannot sustain such a motion on grounds not asserted in trial court. Rick v. Boegel, 205 N.W.2d 713, 716 (Iowa 1973) and citations.
II. In its motion to dismiss Scott County relies on § 613A.4, The Code, 1971:
'613A.4 Claims exempted. The liability imposed by section 613A.2 shall have no application to any claim enumerated in this section.
(3) Any claim based upon an act or omission of an officer or employee, exercising due care, in the execution of a statute, ordinance, or officially adopted resolution, rule, or regulation of a governing body.'
However, in its brief filed here, the county does not rely on this section, but as above noted, asserts the county's sign-placing function was discretionary and the dismissal was a proper disposition under Seiber v. State, supra. In Seiber four justices of this court affirmed a summary judgment against a plaintiff whose decendent was killed in a car-deer collision in an unposted deer-crossing area. Two justices dissented. Three others concurred specially on the basis the papers filed did not raise essential issues, but nonetheless observed, 211 N.W.2d at 701,
But more important, here, the county fails to observe Seiber was grounded on § 25A.14(1), The Code, which carved out an exemption from liability for the State for claims '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 * * *.' No such 'discretionary function' exemption is found in chapter 613A, 'Tort Liability of Governmental Subdivisions.'
Similarly overlooked by the county is the fact § 613A.2, The Code, 1971 simply provides 'every municipality is subject to liability for its torts and those of its officers, employees, and agents acting within the scope of their employment or duties * * *.' Any common-law immunity in tort previously accorded governmental subdivisions was eliminated except for those torts specifically excluded by § 613A.4. Jahnke v. Incorporated City of Des Moines, 191 N.W.2d 780, 782 (Iowa 1971). The definition of tort was given its widest range, meaning 'every civil wrong * * * and includes but is not restricted to actions based upon negligence, breach of duty, and nuisance.' Section 613A. 1(3).
No one contends the legislature intended anything other than making more specific its original intention when in 1974 it expanded the definition to state a chapter 613A tort 'includes but is not restricted to actions based upon negligence; error or Omission; nuisance; breach of duty, Whether statutory or other duty or denial or impairment of any right under any constitutional provision, statute, or rule of law.' (Emphasis supplied.) Acts 65 G.A., Ch. 1263 § 2.
Thus the obligation of the county to these plaintiffs is not required to be specifically mandated by a statute, nor is its potential liability grounded upon an overt act rather than omission. The abrogation of governmental immunity in these situations requires the application of a basic tort rule:
--Lindquist v. Des Moines Union Ry. Co., 239 Iowa 356, 360, 30 N.W.2d 120, 122 (1947).
We have consistently recognized that governmental units, with respect to highways...
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