Tenney v. Atlantic Associates

Decision Date28 April 1999
Docket NumberNo. 97-1201,97-1201
Citation594 N.W.2d 11
PartiesPatricia TENNEY, Appellant, v. ATLANTIC ASSOCIATES d/b/a Park Towne Apartments, Appellee.
CourtIowa Supreme Court

Stanley A. Roush, Cedar Rapids, for appellant.

Richard C. Garberson and Theresa C. Davis of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for appellee.

Considered by LARSON, P.J., and LAVORATO, SNELL, TERNUS, and CADY, JJ.

LARSON, Justice.

Patricia Tenney sued Atlantic Associates d/b/a Park Towne Apartments, the manager of her apartment building, for damages sustained when she was raped by a stranger in her apartment. The district court entered a summary judgment for the defendant, and the plaintiff appealed. We reverse and remand.

I. Facts and Prior Proceedings.

The facts in the summary judgment record, viewed in the light most favorable to the plaintiff, show that Patricia Tenney arrived home early in the morning of December 5, 1993. She was raped by an unknown intruder who had gained access to her apartment, apparently by the use of keys, on December 4 or early December 5. The door to Tenney's apartment had two locks, including a dead bolt, and both locks were operated by keys. There were no signs of a forced entry. When Tenney originally moved into the apartment, the key provided for her did not open her door, so she returned it. A Park Towne employee gave her two different keys and told Tenney they were the master keys and they would have to have them back in order make copies because they did not have any other keys to Tenney's apartment. Her locks had not been changed after the former tenant moved out, so the same master keys continued to operate her locks.

Tenney's suit alleged Park Towne was negligent in failing to maintain records of access to keys to the apartment, failing to change the lock when she moved in, and failing to maintain adequate security with regard to the keys kept in the manager's office.

Park Towne filed a motion for summary judgment, and the district court granted it, holding as a matter of law that (1) Park Towne had not breached a duty to Tenney, and (2) the action of the intruder was a superseding cause of the plaintiff's injuries. Ten days after the summary judgment ruling, Tenney filed a motion under Iowa Rule of Civil Procedure 179(b) to modify the order. She also filed an "application for record inclusion" by which she sought to introduce additional documents to support her resistance. The district court denied both motions.

II. The Issues.

A. The defendant's issue. The defendant raises an issue of appellate jurisdiction, and we address that first. It claims the plaintiff did not appeal within the thirty days from final judgment provided by rule of appellate procedure 5(a). This issue was initially raised in a motion to dismiss the appeal, which we denied. We ordered the matter of appellate jurisdiction to be submitted with the appeal.

The district court granted the defendant's motion for summary judgment on April 29, 1997. On May 9 the plaintiff filed the two motions mentioned above: one under rule 179(b), asking the court to amend its order, and the other a motion to include additional material. The court denied both of these motions on June 3, 1997, and the plaintiff filed her notice of appeal on July 2, 1997, which was within thirty days of the court's order on her rule 179(b) motion. See Iowa R.App. P. 5(a) (if rule 179(b) motion filed, thirty-day appeal time runs from date of ruling on motion). The defendant, however, says the thirty days ran from the date of the original summary judgment (sixty-two days earlier) and not from the June 3 ruling on the rule 179(b) motion.

Before addressing the merits of the defendant's jurisdiction argument, we digress briefly to discuss in general the role of rule 179(b) motions in summary judgment cases--a matter that still seems to create confusion. In City of Eldridge v. Caterpillar Tractor Co., 270 N.W.2d 637, 640-41 (Iowa 1978), we held that rule 179(b) applied only when the court is trying an issue of fact without a jury, and a summary judgment proceeding did not fall in that category. The City of Eldridge holding, however, has been abrogated by a 1980 amendment to our summary judgment rule. Now "[i]f summary judgment is rendered on the entire case, RCP 179(b) shall apply." Iowa R. Civ. P. 237(c); see also Nuzum v. State, 300 N.W.2d 131, 134 (Iowa 1981). In this case, the district court entered summary judgment on the entire case, so rule 179(b) was an appropriate means to challenge the summary judgment ruling.

The defendant, however, contends the rule 179(b) motion was insufficient in any event

because it sought to inject a large quantity of new evidence [through the "application for record inclusion"] and to reargue the summary judgment motion based upon evidence that was not in the record at the time the summary judgment was decided.

See Stockdale, Inc. v. Baker, 364 N.W.2d 240, 243-44 (Iowa 1985) (filing of affidavit to bolster resistance to summary judgment not permitted after summary judgment entered). If the plaintiff's motion is not a proper rule 179(b) motion, it was ineffective to delay the running of the thirty-day appeal time, and the appeal would have to be dismissed. See Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998).

We agree that the court properly denied the plaintiff's application to include new material after the court's ruling. We do not agree with the defendant, however, that the rule 179(b) motion was a nullity. It is true the postjudgment motion relied on evidence that had not been included in the original resistance, but it also relied on evidence that had been included in the resistance. The evidence included answers to interrogatories outlining the opinion of the plaintiff's experts and facts set out by the plaintiff concerning the practices of the defendant with regard to security. The plaintiff's motion asked the court to modify the judgment in light of this evidence and was a proper motion under rule 179(b). The motion was sufficient to toll the thirty-day appeal time, and we therefore reject the defendant's appellate-jurisdiction argument.

B. The plaintiff's issues. Tenney challenges the court's conclusions that the plaintiff failed to establish a duty of care and the acts of the intruder were superseding causes of the plaintiff's injuries.

III. Standard of Review.

We review a district court's summary judgment for errors at law. Iowa R.App. P. 4; Sampson v. American Standard Ins. Co., 582 N.W.2d 146, 149 (Iowa 1998). Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 237(c); Ranney v. Parawax Co., 582 N.W.2d 152, 153 (Iowa 1998). We review the record in the light most favorable to the party opposing the motion. Sampson, 582 N.W.2d at 149. The burden of showing the nonexistence of a material fact is upon the moving party. Knapp v. Simmons, 345 N.W.2d 118, 121 (Iowa 1984).

IV. The Liability Issue.

The district court ruled that, even assuming Park Towne and its tenant had a "special relationship," Restatement (Second) of Torts § 314A, at 118 (1965), Park Towne still owed no duty of care to the plaintiff to prevent her injuries at the hands of a third party. The reason given by the court was that

[a] landlord must know or should know of an unreasonable risk of injury [to owe a duty of care]. A landlord is not required to take precautions against a sudden attack from a third person which it has no reason to anticipate [and] [t]here is nothing in the record in this case which would place Park Towne on notice of potential criminal activity, let alone the type of assault which Tenney suffered.

(Citation omitted.)

Whether a duty exists is a question of law that may be properly resolved in a summary judgment proceeding. Martinko v. H-N-W Assocs., 393 N.W.2d 320, 321 (Iowa 1986) (duty of care toward member of public under Restatement (Second) of Torts § 344, at 223-24 (1965)).

A. The duty. A landlord is not an insurer against every conceivable act by a third party but is required to provide reasonable security against the injury under the circumstances shown by the record. Brichacek v. Hiskey, 401 N.W.2d 44, 47 (Iowa 1987) (citing Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 481 (D.C.Cir.1970)). But

[t]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.

Restatement (Second) of Torts § 314, at 116.

The rationale of this rule is explained:

The origin of the rule [generally denying recovery] lay in the early common law distinction between action and inaction, or "misfeasance" and "non-feasance." In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence liability for nonfeasance was slow to receive any recognition in the law. It appeared first in, and is still largely confined to, situations in which there was some special relation between the parties, on the basis of which the defendant was found to have a duty to take action for the aid or protection of the plaintiff.

Restatement (Second) of Torts § 314 cmt. c, at 116-17 (emphasis added); see also W.L. Prosser & W. Page Keaton, Prosser and Keaton on the Law of Torts § 33, at 201-202, § 63, at 442 (5th ed.1984) [hereinafter Prosser & Keaton].

The Restatement provides a short list of special relationships that, despite the general rule, create a duty to aid or protect others. This includes the relationship between an innkeeper and his guest. Restatement (Second) of Torts § 314A. The innkeeper-guest relationship,...

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