Amended September 1, 2016 Estate Of David Paul McFarlin By Its Personal Representative, Jamie Laass Jamie Laass, Individually And Jamie Laass, As Parent And Next Friend Of S.l. v. State Of Iowa

• Court: Supreme Court of Iowa
• Decided: June 17, 2016
• Docket: 14–1180
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 14–1180

Filed June 17, 2016

Amended September 1, 2016

ESTATE OF DAVID PAUL McFARLIN by Its Personal Representative, Jamie Laass; JAMIE LAASS, Individually; and JAMIE LAASS, as Parent and Next Friend of S.L.,

Appellants,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Buena Vista County,

Carl J. Petersen, Judge.

Plaintiffs seek further review of court of appeals decision that

affirmed summary judgment dismissing tort claims against the State of

Iowa arising from boating accident on Storm Lake. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT SUMMARY

JUDGMENT AFFIRMED.

Jay E. Denne and Stanley E. Munger of Munger, Reinschmidt &

Denne, LLP, Sioux City, for appellants.

Thomas J. Miller, Attorney General, and Anne Updegraff, Assistant

Attorney General, for appellee. 2

WATERMAN, Justice.

This appeal presents several questions of law on the liability of the

State of Iowa for a fatal boating accident on Storm Lake. A ten-year-old

boy riding in a speedboat died when his mother’s boyfriend drove the

watercraft at thirty miles per hour between two danger buoys and struck

a submerged dredge pipe. The mother filed several tort actions and

settled claims against the entities that operated and marked the dredge,

the boat manufacturer, and her boyfriend. Her lawsuit against the State

alleged its department of natural resources (DNR) shared responsibility

for the accident. The district court granted the State’s motion for

summary judgment on several grounds: statutory immunity, the public-

duty doctrine, and the lack of a private right to sue under Iowa statutes

regulating use of public waterways. We transferred the mother’s appeal

to the court of appeals, which affirmed on all three grounds. We granted

the mother’s application for further review.

For the reasons explained below, we hold that Iowa Code chapters

461A and 462A provide no private right to sue and the public-duty

doctrine bars the mother’s common law tort claims against the State.

Because those twin holdings resolve the appeal, we do not reach the

statutory immunity issues. We vacate the decision of the court of

appeals and affirm the summary judgment ruling dismissing this action.

I. Background Facts and Proceedings.

On Memorial Day weekend, May 31, 2010, Harry Foote took his

girlfriend, Jamie Laass, and four children fishing on Storm Lake. They

lived in South Sioux City, Nebraska. They drove to Storm Lake in Foote’s

pickup towing his 1850 Lund Tyee speedboat. That model is eighteen-

feet long and seats six people. Its top speed is fifty miles per hour. Foote

launched the watercraft at 9:30 a.m. from the Lakeside boat ramp. 3

Storm Lake is open to the public, and boaters pay no fee to use the lake.

Foote operated the speedboat with his five passengers: Laass; her ten-

year-old son, D.M.; her minor daughter, S.L.; and two other children.

Foote had gone walleye fishing on Storm Lake before, and he knew there

was an ongoing dredging operation at the lake.

Once Foote left the no-wake zone, he headed west, skimming over

the water at a speed greater than thirty miles per hour. A couple fishing

in another boat signaled Foote to slow down, but he did not see them.

Foote rapidly approached several buoys that were white with black

lettering stating “DREDGE PIPE.” The buoys displayed an orange

diamond, which the boater’s manual describes as a danger sign. These

buoys marked a submerged pipe used for an ongoing dredging operation.

Foote was confused as to the dredge pipe’s location and steered the

speedboat to pass between two buoys at thirty miles per hour. He saw

the dredge pipe immediately before reaching it. The boat’s 175

horsepower, 400-pound outboard motor/propeller struck the pipe and

flipped into the boat. The propeller was still spinning when it landed in

the passenger compartment and struck D.M., who died from his injuries

later that day.

Storm Lake is a meandered lake located in Buena Vista County,

Iowa. The State of Iowa owns the lakebed and allows the public to use

the lake for recreation. The DNR uses Storm Lake as a walleye fishery.

The DNR harvests walleye eggs from Storm Lake to stock other Iowa

lakes for fishing. The State allowed dredging to begin on the lake in 2002

to improve water conditions for walleyes. Dredging is the process of

removing sediment from the bottom of a lake to increase the depth of a

lake and improve water quality. The sediment is removed through a pipe

from the lake bottom to the location where the sediment is deposited on 4

shore. When sediment is being removed, the pipe is submerged. When

the dredge boat moves the pipe to start on a new area, the pipe can rise

to the surface. On the day of the accident, the dredge pipe was marked

every 300 feet with white danger buoys.

The State hired a contractor to dredge the first year. After the one-

year contract expired, the contractor took its dredging equipment

elsewhere. In 2003, the Lakeside Improvement Commission (LIC), an

Iowa Code chapter 28E entity, was formed to take over the dredging

operation. The LIC is comprised of representatives from Buena Vista

County, the City of Storm Lake, the City of Lakeview, and the Lake

Preservation Commission, a private nonprofit entity. Buena Vista County

owns the dredge and accompanying equipment, and the dredge operators

are employees of the City of Storm Lake. The LIC is required to apply

annually for a permit from the DNR through the Natural Resources

Commission (NRC). See Iowa Code § 461A.53 (2009). The permits

require the LIC to notify the DNR “prior to the beginning of the

construction and upon its completion so it may be ascertained that the

state’s interests are being protected.” The LIC submits a new dredging

plan each year, which has been approved annually by the NRC. The

DNR reimburses the LIC for the costs of the dredging when its budget

permits.

In July 2009, two boaters filed accident reports with the NRC

stating their boats had hit the submerged dredge pipe. Reports are filed

with the NRC if property damage exceeds $2000. No changes were made

to better identify the dredge pipe’s location. In 2010, the permitted area

for dredging spanned approximately half of the surface area of the lake.

The dredging project was expected to take ten to twelve years to

complete. 5

Laass filed three lawsuits on behalf of D.M.’s estate, her daughter,

and herself. One action in federal court named as defendants Foote, the

dredge operator, local entities operating the dredge equipment (the City of

Storm Lake, Buena Vista County, and the LIC), and Brunswick

Corporation, the boat manufacturer. The estate recovered a settlement of

$1.2 million in that lawsuit. A separate federal court action against

Lakeside Marina, Inc. was dismissed on summary judgment on grounds

that the defendant had no control over the lake. This appeal arises from

the third suit, filed in Buena Vista County, against the DNR and the

State of Iowa. The DNR was dismissed as a party on January 14, 2013,

leaving the State of Iowa as the sole defendant. The parties proceeded

with discovery and developed an evidentiary record regarding

responsibility for the dredging and buoys.

There are three types of buoys used on Storm Lake. “No wake”

buoys are placed by the DNR. These buoys have a circle and say “slow

no wake.” Exclusion buoys are placed by the DNR to indicate areas that

are off-limits to all vessels. DNR Officer Brent Koppie testified that he

places no-wake buoys in the lake in the spring and removes them in the

winter. The estate’s expert, Marjorie Cooke, also testified that the DNR

officers receive training about the placement and management of

exclusionary buoys.

Finally, danger buoys are used on Storm Lake to mark rocks,

shoals, construction, dams, or stumps. Danger buoys are white with an

orange diamond. The record shows that the DNR was not responsible for

the placement of those buoys to mark the dredge pipe. To the contrary,

Randy Redig, a dredge operator employed by the City of Storm Lake,

testified the dredge operators—city employees—controlled and

maintained the danger buoys marking the submerged dredge pipe. 6

Patrick Kelly, the Public Works Director for the City of Storm Lake,

explained that the city was responsible for warning boaters about the

dredge pipe, and the city had made adjustments to the marking of the

pipe after D.M.’s death:

Q. So your thought was that nobody had the responsibility of making the dredge operation safer for boaters? A. We had the — We had the — It was our responsibility to make it safe, and we felt we’ve done that. Q. Okay. A. As much as we can. Q. Have any changes taken place in the dredging operation since [D.M.] was killed to make it safer? A. The only thing we did is we added some small orange intermediate markers in the dredge pipe. Q. So now how far apart are they spaced? A. They’re roughly 150 feet.

Kelly testified that the DNR was not involved with the day-to-day

operations of the dredge:

Q. What do you do by “day-to-day operations”? A. I’m the go-between between the dredge and the LIC, Lake Improvement Commission, and then I monitor the daily work sheets and troubleshoot anything that they have problems with or make sure they’re getting the work done that needs to be done. Q. Who specifies where the dredge covers on the lake? A. What we do on that is I draw up a plan from year to year. It’s submitted to the DNR for their approval, and then DNR writes off on that, and then we schedule it out from there. .... Q. And what role do you understand the DNR plays in the dredging operation? A. Just oversee it and give us money to operate. Q. Do they specify how to dredge? A. No. Q. Do they specify whether—any of the safety precautions relative to dredging? A. No. Q. Do they—In your view, do they have the ability to specify those things if they want? A. I can’t answer that. Q. Have they been on-site looking at the dredging operation? A. Correct. 7 Q. How long does that happen? A. Oh, actually going out on the dredge, maybe once or twice a year . . . .

DNR Officer Koppie once raised concerns about the floating pipe being dangerous, and those concerns were addressed:

Q. [W]ho did you express the concern to? A. I expressed the concern through our dispatch to the dredge crew for the City of Storm Lake. Q. And how do you know it got to the dredge crew? A. Because it was rectified. Q. Okay. On the occasion you expressed a concern, the pipe stopped floating? A. Yes.

DNR Officer Koppie testified he did not believe he could change the

dredge’s safety practices:

Q. And do you think you would have authority actually to force something to be done if you see an obvious safety concern? A. Not necessarily. I think I can make that suggestion, I think I can bring it to their attention, but how much weight that carries, I’m not sure. .... Q. Have you ever raised a concern about the placement or the number of buoys marking the dredge pipe? A. No.

There was also testimony from Redig that he was told by the DNR after

the accident that the buoys were in the right place.

Plaintiffs alleged the State is liable because it (1) permitted the

dredge operator to mark the dredge pipe with buoys every 100 yards

instead of every ten or twenty-five yards, 1 (2) allowed the placement of the dredge pipe in violation of Iowa Code section 461A.55, (3) allowed the

dredge pipe to remain concealed, (4) allowed the dredge pipe to be in a

location where it interfered with boating operations, (5) allowed the

dredging equipment to endanger plaintiffs, (6) failed to adequately mark

1After this incident, intermediate markers were added to the dredge pipe every

50 yards. 8

the dredge pipe, (7) failed to adequately warn boaters of the nature and

extent of the dredging operation, and (8) failed to establish speed limits

or warnings in the vicinity of the dredge pipe. The petition included

claims for bystander recovery and loss of consortium as well as wrongful-

death claims for D.M.’s estate.

On February 28, 2014, the State filed an answer denying liability

and pleading various defenses. The State then filed a motion for

summary judgment, asserting six independent grounds: (1) there was no

waiver of sovereign immunity for torts occurring on a sovereign lake, (2)

there was no common law negligence action arising from the role of the

State holding the bed of Storm Lake in public trust, (3) the public-duty

doctrine precluded a private cause of action, (4) there was no statutory

basis for a private cause of action, (5) the State was immune under the

recreational use statute, and (6) the State was immune under the

discretionary-function exception to the Iowa Tort Claims Act.

The district court granted the State’s motion on July 9, 2014. The

court held discretionary-function immunity applied, the public-duty

doctrine applied, and there was no private cause of action. We

transferred the plaintiffs’ appeal to the court of appeals, which affirmed

the district court on all three grounds. We granted the plaintiffs’

application for further review.

II. Standard of Review.

“We review a district court’s ruling on summary judgment for

correction of errors at law.” Thomas v. Gavin, 838 N.W.2d 518, 521 (Iowa

2013). “The evidence is viewed in the light most favorable to the

nonmoving party.” Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa

2012). We review rulings on statutory construction for correction of

errors at law. Sanon v. City of Pella, 865 N.W.2d 506, 511 (Iowa 2015). 9

III. Analysis.

We first address whether the legislature implicitly created a private

right to sue under the statutes empowering the DNR to regulate use of

Storm Lake and then address whether the public-duty doctrine bars

plaintiffs’ common law tort claims. Because our answers to those

questions resolve the appeal, we decline to reach the remaining issues of

statutory immunity.

A. Do Iowa Code Chapters 461A and 462A Provide a Private

Right to Sue? Plaintiffs claim that provisions in Iowa Code chapters

461A and 462A create a private right to sue. This is a question of

statutory interpretation. The district court and court of appeals

determined there was no private right to sue in those chapters. We

agree.

“Not all statutory violations give rise to a private cause of action. A

private statutory cause of action exists ‘only when the statute, explicitly

or implicitly, provides for such a cause of action.’ ” Mueller, 818 N.W.2d

at 254 (quoting Sanford v. Manternach, 601 N.W.2d 360, 371 (Iowa

1999)). “A private right of action is the right of an individual to bring suit

to remedy or prevent an injury that results from another party’s actual or

threatened violation of a legal requirement.” Shumate v. Drake Univ., 846

N.W.2d 503, 507 (Iowa 2014) (quoting Wisniewski v. Rodale, Inc., 510

F.3d 294, 296 (3d Cir. 2007) (footnote omitted)). A private, statutory

cause of action only exists “if the legislature intended ‘to create not just a

private right but also a private remedy.’ ” Id. (quoting Alexander v.

Sandoval, 532 U.S. 275, 286, 121 S. Ct. 1511, 1519, 149 L. Ed. 2d 517,

528 (2001)).

Plaintiffs argue four provisions in chapter 461A—sections 461A.3,

461A.52, 461A.53, and 461A.55—read together with section 462A.12(1) 10

create a private cause of action. 2 Section 461A.3 sets forth the NRC’s

“Duties as to parks”:

It shall be the duty of the commission to establish, maintain, improve, and beautify public parks and preserves upon the shores of lakes, streams, or other waters, or at other places within the state which have become historical or which are of scientific interest, or which by reason of their natural scenic beauty or location are adapted therefor. The commission shall have the power to maintain, improve or beautify state-owned bodies of water, and to provide proper public access thereto. The commission shall have the power to provide and operate facilities for the proper public use of the areas above described.

Iowa Code § 461A.3 (emphasis added); see id. § 461A.1(1) (defining

commission to mean the NRC). Section 461A.52 states,

No person shall remove any ice, sand, gravel, stone, wood, or other natural material from any lands or waters under the jurisdiction of the commission without first entering into an agreement with the commission.

Id. § 461A.52. Section 461A.53 regulates contracts to remove natural

materials from state-owned land:

The commission may enter into agreements for the removal of ice, sand, gravel, stone, wood, or other natural material from lands or waters under the jurisdiction of the commission if, after investigation, it is determined that such removal will not be detrimental to the state’s interest. The commission may specify the terms and consideration under which such removal is permitted and issue written permits for such removal.

Id. § 461A.53. Section 461A.55, entitled “Dredging,” provides,

In removing sand, gravel, or other material from state- owned waters by dredging, the operator shall so arrange the operator’s equipment that other users of the lake or stream shall not be endangered by cables, anchors, or any concealed equipment. No waste material shall be left in the water in

2Plaintiffs cited additional Code provisions in district court: Iowa Code sections 461A.26, 462A.17, 462A.23, and 462A.32. None of those provisions changes our analysis. 11 such manner as to endanger other craft or to change the course of any stream.

Id. § 461A.55 (emphasis added); see also id. § 461A.57 (providing a violation of section 461A.55 is a simple misdemeanor). Iowa Code

section 462A.12(1) states, “No person shall operate any vessel . . . in a

careless, reckless or negligent manner so as to endanger the life, limb or

property of any person.”

No provision in chapter 461A or 462A expressly creates a private

right to sue. We therefore apply our four-factor test to determine

whether an implied private right of action exists:

(1) whether “the plaintiff [is] a member of the class for whose special benefit the statute was enacted”; (2) “[l]egislative intent, either explicit or implicit, to create or deny a remedy”; (3) whether “a private cause of action [is] consistent with the underlying purpose” of the statute; and (4) whether “the implication of a private cause of action [will] intrude into an area over which the federal government has exclusive jurisdiction or which has been delegated exclusively to a state administrative agency.”

Shumate, 846 N.W.2d at 508 (quoting Seeman v. Liberty Mut. Ins. Co.,

322 N.W.2d 35, 41–43 (Iowa 1982)). “Our ‘central inquiry’ is whether the

legislature intended to create a private right to sue.” Id. at 509. “If any

one of these factors is not satisfied, there is no implied cause of action.”

Kolbe v. State, 625 N.W.2d 721, 727 (Iowa 2001).

We conclude the plaintiffs failed to satisfy the second factor

because we are unable to glean any legislative intent in these statutes to

create a private right to sue. Rather, chapters 461A and 462A provide a

detailed regulatory regime to protect the use of public lands and waters

for the benefit of the general public. We have repeatedly declined to find

an implied private right to sue under general regulatory statutes. See

Mueller, 818 N.W.2d at 254–58 (holding statutes regulating health

insurance did not provide private right to sue); Stotts v. Eveleth, 688 12

N.W.2d 803, 808–09 (Iowa 2004) (holding Iowa Code chapter 272,

intended as a regulatory measure for teacher licensing, has no implied

private right to sue); Kolbe, 625 N.W.2d at 727 (“Iowa Code section

321.177(7) was intended to be a regulatory measure designed to do

nothing more than simply limit the driving privileges of those who are

incapable of operating a motor vehicle safely. It is devoid of any

suggestion of a private remedy.”); Unertl v. Bezanson, 414 N.W.2d 321,

325–26 (Iowa 1987) (finding no private right to sue under Iowa Code

chapter 536A, regulating industrial loan companies); Seeman, 322

N.W.2d at 41–42 (holding chapter 507B, regulating insurance trade

practices, created no private right to sue insurer). Plaintiffs cite no

regulatory statutes comparable to chapters 461A or 462A that we have

interpreted to provide a private right of action. “We believe that, had the

legislature intended to create a private right of action . . . [,] it would have

said so clearly.” Marcus v. Young, 538 N.W.2d 285, 290 (Iowa 1995)

(quoting Unertl, 414 N.W.2d at 326).

We reject the plaintiffs’ argument that the misdemeanor provisions

support a private right of action. See Schumate, 846 N.W.2d at 515–16

(noting the legislature could reasonably conclude criminal penalties were

sufficient to deter statutory violations); cf. Seeman, 322 N.W.2d at 42

(concluding administrative enforcement remedies were adequate to

achieve legislative purpose).

Because the plaintiffs must satisfy all four factors and fail under

the second, we need not address the other three. Kolbe, 625 N.W.2d at

727 (“To resolve the issue, we address only the second factor . . . .”). We

hold that Iowa Code chapters 461A and 462A do not create an implied

private right to sue. We turn next to plaintiffs’ common law claims. 13

B. Does the Public-Duty Doctrine Bar Plaintiffs’ Common Law

Tort Claims? The district court ruled that the public-duty doctrine bars

plaintiffs’ common law claims against the State, and the court of appeals

affirmed on that ground. Plaintiffs, relying on Summy v. City of

Des Moines, contend the public-duty doctrine does not apply here. 708

N.W.2d 333, 344 (Iowa 2006). We conclude Summy is inapplicable and

the controlling decision is Kolbe, which precludes liability to individuals

based on breach of a duty the state owes to the public at large.

Under the public-duty doctrine, “if a duty is owed to the public

generally, there is no liability to an individual member of that group.”

Kolbe, 625 N.W.2d at 729 (quoting Wilson v. Nepstad, 282 N.W.2d 664,

667 (Iowa 1979) (en banc)).

[A] breach of duty owed to the public at large is not actionable unless the plaintiff can establish, based on the unique or particular facts of the case, a special relationship between the State and the injured plaintiff consistent with the rules of Restatement (Second) of Torts section 315.

Id. (emphasis omitted). Section 315 states,

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (Am. Law Inst. 1965) [hereinafter

Restatement (Second)]. In Raas v. State, we confronted and rejected an

argument that we should abandon the public-duty doctrine, as some

other states have done, because the doctrine was supplanted by the

enactment of tort claims statutes that partially abrogate sovereign

immunity. 729 N.W.2d 444, 448–49 (Iowa 2007) (noting we had rejected 14

that argument in Kolbe). We distinguished the public-duty doctrine from

statutory tort immunity: “Unlike immunity, which protects a municipality

from liability for breach of an otherwise enforceable duty to the plaintiff,

the public duty rule asks whether there was any enforceable duty to the

plaintiff in the first place.” Id. at 448 (quoting 18 Eugene McQuillin,

McQuillin on Municipal Corporations § 53.04.25 (3d ed. 2006)). We

determined the public-duty doctrine remains “alive and well in Iowa.” Id.

at 449; see also Cope v. Utah Valley State Coll., 342 P.3d 243, 249–50

(Utah 2014) (surveying authorities to conclude the “public duty doctrine

is recognized in most jurisdictions” and rejecting argument to abandon

the doctrine); 18 Eugene McQuillin, The Law of Municipal Corporations

§ 53.18, 246–51 (3d ed. rev. vol. 2013) [hereinafter McQuillin] (noting the

“public duty rule [is] in effect in most jurisdictions” and “protects

municipalities from failure to adequately enforce general laws and

regulations, which were intended to benefit the community as a whole”).

But see Coleman v. E. Joliet Fire Prot. Dist., 46 N.E.3d 741, 757–58 (Ill.

2016) (abolishing public-duty doctrine because its purposes “are better

served by application of conventional tort principles and the immunity

protection afforded by statutes”). 3 The plaintiffs, relying on Summy, argue the public-duty doctrine is inapplicable to the facts of this case but

do not ask us to overrule Raas and Kolbe and abandon the public-duty

doctrine. We do not ordinarily overrule our precedent sua sponte.

3Two justices concurred on different grounds. Coleman, 46 N.E.3d at 758–60 (Freeman, J., specially concurring). Three justices dissented. Id. at 760–68 (Thomas, J., dissenting). The dissent stated the lead opinion and concurring opinion “both make a mockery of stare decisis.” Id. at 761. A noted commentator observed, “The legislature’s abrogation of absolute sovereign immunity does not lead to the conclusion that the public duty doctrine also has been abrogated . . . ; there still must be proof of a duty owed . . . .” McQuillin, § 53.18, at 38–39 (2015 Cumulative Supp.). 15

In Thompson v. Kaczinski, we adopted section 7 of the Restatement

(Third) of Torts: Liability for Physical and Emotional Harm. 774 N.W.2d

829, 835 (Iowa 2009). The reporter’s note to section 7 acknowledges the

continued vitality of the public-duty doctrine:

Deference to discretionary decisions of another branch of government. The “public-duty” doctrine is often explained as preventing government tort liability for obligations owed generally to the public, such as providing fire or police protection. Only when the duty is narrowed to the injured victim or a prescribed class of persons does a tort duty exist.

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 7

reporter’s note cmt. g, at 93–94 (Am. Law Inst. 2010) [hereinafter

Restatement (Third)] (collecting cases). 4 Section 37 provides that “[a]n

actor whose conduct has not created a risk of physical . . . harm to

another has no duty of care to the other unless a court determines that

one of the affirmative duties provided in §§ 38–44 is applicable.”

Restatement (Third) § 37, at 2 (Am. Law Inst. 2012). Section 40, entitled

“Duty Based on Special Relationship with Another” provides that “[a]n

actor in a special relationship with another owes the other a duty of

reasonable care with regard to risks that arise within the scope of the

relationship.” Id. § 40(a), at 39. We conclude the public-duty doctrine remains good law after our adoption of sections of the Restatement

(Third) of Torts.

4The plaintiffs have not argued the Restatement (Third) undermines the public- duty doctrine in district court or in their appellate briefings. The district court concluded the public-duty doctrine continues under the Restatement (Third) as a countervailing principle or policy under section 7, noting comment g. The State argued below and on appeal that the public-duty doctrine remains intact after our adoption of section 7. Because the district court ruled the doctrine continues under the Restatement (Third), and the parties had the opportunity to brief the issue, that question is ripe for determination by our court. Cf. Hagenow v. Schmidt, 842 N.W.2d 661, 676–77 (Iowa 2014) (“[N]either the parties nor the district court raised the provisions of the Restatement (Third) when instructing the jury in this case. We defer for another day our consideration of these provisions . . . .”). 16

We declined to apply the public-duty doctrine in Summy. 708

N.W.2d at 344. Richard Summy was golfing at Waveland Golf Course

owned by the City of Des Moines when he was struck in the eye by a golf

ball while standing on the eighteenth fairway. Id. at 335. The golf ball

had been hit by a golfer from the tee for the first hole. Id. Summy sued

the city, alleging it negligently failed to provide a tree screen to protect

players from errant flying golf balls. Id. at 336. The jury found Summy

twenty-five percent at fault and the city seventy-five percent at fault. Id.

at 337. The city appealed on multiple grounds, and we affirmed. Id. at

337, 344–45. We addressed the public-duty issue in a single paragraph,

citing and distinguishing Kolbe as follows:

The City also relies on the public-duty doctrine: if the government owes a duty to the general public, it has no liability to any one individual when it fails to perform this public duty. This doctrine is inapplicable here because the City’s duty was one owed to invitees on the golf course, not to the public at large. We conclude, therefore, that the trial court did not err in refusing to direct a verdict in favor of the City.

Id. at 344 (emphasis added) (citation omitted); see also Kolbe, 625

N.W.2d at 729 (stating doctrine does not apply if there is a particular

relationship between the government entity and the injured plaintiff that

gives rise to a special duty).

The plaintiffs argue boaters on Storm Lake, like golfers at

Waveland Golf Course, have the requisite special relationship with the

government-owner to avoid the public-duty doctrine. We disagree.

Golfers pay to use the Waveland Golf Course as business invitees. The

city was both landowner and proprietor operating Waveland as a

business for paying customers. Golfers proceed through the course in

small groups, hole-by-hole in sequence. Members of the general public

are not allowed to wander freely around Waveland while golfers are 17

playing. By contrast, Storm Lake is open to the public free of charge.5

Boaters may traverse the lake freely and come and go as they please, like

motorists using public roads. See Witke v. State Conservation Comm’n,

244 Iowa 261, 267, 56 N.W.2d 582, 586 (1953) (“It is a general rule that

the state cannot add to its revenues by selling to individuals the right to

enjoy such use of public waters as rightfully belong to the public at large,

such as boating . . . .” (quoting 56 Am. Jur. § 215, at 676)). Moreover,

the city alone operated the golf course at Waveland. Local entities, not

the State, operated the dredging equipment at Storm Lake.

This case is more like Kolbe than Summy. In Kolbe, we applied the

public-duty doctrine to affirm summary judgment for the state,

dismissing tort claims alleging the department of transportation (DOT)

negligently issued a drivers’ license to a visually impaired driver, Justin

Schulte. 625 N.W.2d at 724–25, 729–30. Five days after Schulte’s

license was reissued, he was driving on a county road and struck a

bicyclist, Charles Kolbe, inflicting severe injuries. Id. at 724. Kolbe sued

the State, alleging that it “negligently and without adequate investigation

issued driving privileges” to Schulte despite knowledge of his impaired

vision. Id. at 724–25. Kolbe claimed Iowa Code chapter 321 created a

particularized class—“rightful users of the Iowa roads.” Id. at 728. The

district court granted the state’s motion for summary judgment. Id. at

725. In affirming the summary judgment on the public-duty doctrine, we

5The boat registration fee Foote paid to use his watercraft in Iowa did not create a special relationship with the State that avoids the public-duty doctrine. See Kolbe, 625 N.W.2d at 729–30 (finding state’s role in issuing drivers’ licenses did not create special class); Mastbergen v. City of Sheldon, 515 N.W.2d 3, 5 (Iowa 1994) (per curiam) (applying public-duty doctrine to affirm summary judgment dismissing negligence claims against city for failing to prevent robbery of jewelry store and rejecting argument that monthly fee to police department to connect and monitor silent alarm created special relationship). 18

held the requisite special relationship was lacking because “the licensing

provisions in Iowa Code chapter 321, and more specifically Iowa Code

section 321.177(7), are for the benefit of the public at large.” Id. at 729.

We reach the same conclusion as to the DNR’s role at Storm Lake.

Boaters at Storm Lake, like motorists driving on Iowa roadways, are

members of the general public, not a special class of “rightful users of the

lake” for purposes of the public-duty doctrine. Plaintiffs cite no case to

the contrary from any jurisdiction. 6

The district court correctly ruled that any duty of the State to

enforce statutory obligations of the dredge operators “was owed to the

general public, just as the duty to enforce the rules of the road against

dangerous drivers are owed to the public in general.” The court of

appeals likewise held the State did not have a special duty to the

plaintiffs. We agree.

The public-duty doctrine applies when the state’s duty is owed to

the general public rather than to a particularized group of persons. In

Sankey v. Richenberger, we applied the public-duty doctrine and declined

to find a special duty to protect a particularized class in a much smaller

6Several cases before Kolbe allowed motorists to bring negligence claims against counties based on dangerous roadways. Harryman v. Hayles, 257 N.W.2d 631, 638 (Iowa 1977) (noting duties owed to “all those rightfully using the roads” in Lee County), overruled on other grounds by Miller v. Boone Cty. Hosp., 394 N.W.2d 776, 781 (Iowa 1986); Symmonds v. Chi., Milwaukee, St. Paul & Pac. R.R., 242 N.W.2d 262, 265 (Iowa 1976) (noting duties owed to “the traveling public” in Scott County). We no longer recognize county-wide special classes of motorists after Kolbe. In Donahue v. Washington County, the plaintiffs’ two-year-old daughter was mauled by a dog that a county deputy had failed to impound despite two prior complaints. 641 N.W.2d 848, 850 (Iowa Ct. App. 2002). The court of appeals affirmed a summary judgment dismissing the plaintiffs’ negligence claims under the public-duty doctrine, holding the duties to impound dangerous dogs was owed to the public at large. Id. at 852. The court of appeals rejected the plaintiffs’ argument that Harryman and Symmonds supported a finding a special relationship or class protected by the animal control ordinance and instead correctly applied Kolbe. Id. at 851–52. 19

location than Storm Lake—a city council meeting open to the public.

456 N.W.2d 206, 209–10 (Iowa 1990) (affirming summary judgment

dismissing negligence claims against the Mt. Pleasant police chief for

failing to prevent fatal shooting spree). We concluded the chief’s duties

were owed to the general public. Id. We rejected the plaintiffs’ argument

that we had abrogated the public-duty doctrine in Wilson. Id. at 209

(distinguishing Wilson, 282 N.W.2d at 673). Wilson involved tort claims

brought by fire victims alleging negligent inspection of the specific

building they occupied. 282 N.W.2d at 666. In Kolbe, we distinguished

Wilson on grounds the fire codes at issue “were not designed to protect

the general public, but rather were designed to protect a ‘special,

identifiable group of persons.’ ” Kolbe, 625 N.W.2d at 729 (quoting

Wilson, 282 N.W.2d at 672). That class was the “lawful occupants of

multiple dwellings.” Wilson, 282 N.W.2d at 672. Unlike the residential

apartment units leased to private tenants in Wilson, Storm Lake is open

to the public. We also distinguished Adam v. State, 380 N.W.2d 716, 723

(Iowa 1986) (en banc), as involving a special class. Kolbe, 625 N.W.2d at

729. In Adam, we rejected the State’s public-duty defense because the

statute was enacted “for the benefit of the class to which plaintiffs

belong—producers doing business with grain dealers.” 380 N.W.2d at

723. We noted the intent of the legislature was to ensure the persons

selling grain received payment. Id. No such particularized class exists in

this case—all members of the public are free to use Storm Lake. We

decline to limit the public-duty doctrine merely because the claim arose

in a confined geographic area such as a public lake.

The Washington Supreme Court applied the public-duty doctrine

in a recreational boating accident case in Ravenscroft v. Washington

Water Power Co., 969 P.2d 75, 85–86 (Wash. 1998) (en banc). The facts 20

of that accident are tragically similar to D.M.’s death on Storm Lake.

Robert Ravenscroft was a passenger in a boat on the Spokane River that

“struck a submerged, rooted tree stump. When the boat hit the stump,

the outboard motor broke off from its attachment and flipped into the

boat, striking Mr. Ravenscroft on the head and shoulder.” Id. at 77. The

accident occurred in a channel where the water level was controlled by

the power company. Id. at 78. Ravenscroft sued the power company and

the county for failure to warn boaters of the submerged tree stumps,

relying on the county’s role in boater safety programs under a

cooperation agreement. Id. at 77, 84. The trial court granted partial

summary judgment, and the state supreme court on interlocutory appeal

held the public-duty doctrine barred the claims against the county. Id.

at 79, 85–86. The Washington Supreme Court acknowledged the

county’s duty under the cooperation agreement went no further than its

duty imposed by state statutes and regulations to promote boater safety.

Id. at 85. In holding the public-duty doctrine barred the claims against

the county, the court specifically declined to find the county owed duties

“for safety of recreational boaters as a specific class.” Id. at 86.

In Cox v. Department of Natural Resources, the Missouri Court of

Appeals applied the public-duty doctrine to affirm the dismissal of tort

claims arising from a diving accident at a state-owned lake. 699 S.W.2d

443, 449 (Mo. Ct. App. 1985). David Cox was swimming within an area

roped off with buoys. Id. at 445. He “made a shallow surface dive,

struck his head on a submerged, hidden, tree stump and became an

instant quadriplegic.” Id. He sued the state, and the trial court granted

the state’s motion to dismiss based on the public-duty doctrine and other

grounds. Id. The appellate court affirmed, expressly rejecting the

plaintiffs’ argument the state’s “duty to provide a physically safe 21

swimming area was a duty to David Cox, as an individual . . . [or as a

member] of a certain class of persons who chose” to swim there. Id. at

449. Rather, the court held the “duty to maintain a safe swimming area

was one owed to the public.” Id. A few years later, the Missouri Supreme

Court, citing Cox, applied the public-duty doctrine to terminate tort

claims against a state park superintendent arising from the drowning

death of a boy scout in a river within a state-owned public park. State

ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 537–38 (Mo. 1988)

(en banc) (citing Cox, 699 S.W.2d at 449). The Missouri Supreme Court

held the park superintendent’s

duty regarding safety measures was owed to the public at large rather than to the decedent in particular, for the decedent’s interest in the safety of the park was indirect and indistinct from that of the public as a whole.

Id. at 538. 7 We hold the State’s safety-related duties at Storm Lake were owed

to the general public, and we decline to recognize a special relationship

or particularized class of recreational boaters to avoid the public-duty

doctrine.

The public-duty doctrine applies notwithstanding the State’s

ownership of Storm Lake. The State owns the lake in trust for the benefit

of the public:

7In Southers v. City of Farmington, the Missouri Supreme Court partially abandoned the public-duty doctrine as to government entities on claims that the legislature specifically abolished sovereign immunity. 263 S.W.3d 603, 613 (Mo. 2008) (en banc) (reinstating tort claims against city arising from injuries caused during high- speed police chase). The Southers court, however, cited Barthelette for the proposition that the public-duty doctrine continues to protect state actors when the state’s duty is owed to the general public. Id. at 621. As noted, we declined to abandon the public- duty doctrine in Raas and Kolbe. 22 That the title to the lake bed is in the state; that such title is not proprietary but is in the nature of a trusteeship, which confers upon the state a burden rather than a benefit; that the power and the duty conferred upon the state under such title is to maintain and promote the navigation and navigability of such lake . . . —these are propositions not in dispute.

Peck v. Alfred Olsen Constr. Co., 216 Iowa 519, 522, 245 N.W. 131, 132–

33 (1932). “The public trust doctrine is based on the notion that the

State is a steward of our natural resources.” Fencl v. City of Harpers

Ferry, 620 N.W.2d 808, 814 (Iowa 2000). As part of that doctrine, “all

persons have a right to use the navigable waters of the state, so long as

they do not interfere with their use by other citizens, subject to

regulation by the state under its police powers.” Witke, 244 Iowa at 271,

56 N.W.2d at 588. The public-trust doctrine and public-duty doctrine fit

hand in glove.

Plaintiffs, relying on Orr v. Mortvedt, argue the State’s ownership

interest in Storm Lake is comparable to a private owner of a private lake.

735 N.W.2d 610, 615–16 (Iowa 2007). That case addressing private lake

ownership is distinguishable from state ownership in public trust. In

Orr, we considered whether a private landowner could prevent a neighbor

from entering or using the water over the landowner’s privately owned

lakebed. We said,

The public generally has a right of access to navigable watercourses. . . . [T]he jurisprudence of this country has extended the definition of “navigable” to refer to watercourses “susceptible of use for purposes of commerce” or “possess[ing] a capacity for valuable floatage in the transportation to market of the products of the country through which it runs.” “Navigable water has been likened to a public highway,” “used or usable as a broad highroad for commerce.”

Id. (first quoting Monroe v. State, 175 P.2d 759, 761 (Utah 1946); then

quoting McCauley v. Salmon, 234 Iowa 1020, 1022–23, 14 N.W.2d 715, 23

716 (1944); and then quoting Mountain Props., Inc. v. Tyler Hill Realty

Corp., 767 A.2d 1096, 1100 (Pa. Super. Ct. 2001)). We held in Orr that

the private landowner could prevent a neighbor from intruding on the

waters of his privately owned lakebed. Id. at 616–18. Plaintiffs contend

that Orr shows the owner of a lakebed also has control of the lake. But,

unlike a private landowner, “the incidents of [the State’s] ‘ownership’ are

closely circumscribed” by the public-trust doctrine. State v. Sorensen,

436 N.W.2d 358, 361 (Iowa 1989). Because the State’s duties regarding

Storm Lake are owed to the general public, the public-duty doctrine

applies.

It is undisputed the dredge pipe and equipment were owned and

operated by local entities, not the State. The DNR did not place the

buoys marking the location of the submerged pipe; city employees placed

them. The LIC controlled day-to-day dredging operations. Liability

follows control, and an owner who transfers control to others is not liable

for injuries. See McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368,

374 (Iowa 2012) (“The reason is simple: The party in control of the work

site is best positioned to take precautions to identify risks and take

measures to improve safety.”); Van Essen v. McCormick Enters., Co., 599

N.W.2d 716, 720–21 (Iowa 1999) (affirming summary judgment for

property owner who transferred control of grain bin to lessee-operator);

Allison ex rel. Fox v. Page, 545 N.W.2d 281, 283 (Iowa 1996) (“The general

rule and exceptions reveal a common principle: liability is premised upon

control.”).

The DNR had regulatory oversight duties for dredging for the

benefit of the public at large. To the extent its duties included ensuring

boaters’ safety, the DNR’s role is akin to a police officer or park ranger.

We “have consistently held that law enforcement personnel do not owe a 24

particularized duty to protect individuals; rather, they owe a general duty

to the public.” Morris v. Leaf, 534 N.W.2d 388, 390 (Iowa 1995)

(collecting cases). This is true regardless of the state’s ownership of

roads and lakes.

For these reasons, the district court correctly granted summary

judgment based on the public-duty doctrine. Because we decide the

common law claims on that ground, “we need not address the immunity

issue.” Kolbe, 625 N.W.2d at 725.

IV. Conclusion.

For the foregoing reasons, we vacate the decision of the court of

appeals and affirm the district court’s summary judgment dismissing

this action.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT SUMMARY JUDGMENT AFFIRMED.

All justices concur except Hecht, Wiggins, and Appel, JJ., who

concur in part and dissent in part. 25

#14–1180, Estate of McFarlin v. State

HECHT, Justice (concurring in part and dissenting in part).

I agree with the majority’s conclusion that various provisions in

chapter 461A, standing alone, do not create a private right of action for

alleged violation of them. However, I dissent on the other issues because

I believe the public-duty doctrine does not foreclose the common law

claims and discretionary-function immunity does not arise under the

circumstances of this case. I would vacate the decision of the court of

appeals, reverse the district court’s summary judgment ruling, and

remand for trial.

I. The Public-Duty Doctrine.

The public-duty doctrine is not new. See Held v. Bagwell, 58 Iowa

139, 144, 12 N.W. 226, 228–29 (1882) (concluding a county supervisor

owed a duty “for the benefit of the public” but owed no duty to the

individual plaintiff). But our understanding of tort law principles has

changed significantly since the nineteenth century, and our current

understanding justifies a fresh look at the doctrine.

The legislature enacted the Iowa Tort Claims Act (ITCA) in 1965.

See generally 1965 Iowa Acts ch. 79. The ITCA abrogated—with some

express exceptions now codified in Iowa Code section 669.14 (2009)—the

former rule of governmental immunity and made the state liable for

negligence “to the same claimants, in the same manner, and to the same

extent as a private individual under like circumstances.” 1965 Iowa Acts

ch. 79, § 4; accord Iowa Code § 669.4. Notably, the common law public-

duty doctrine is not among the express exceptions to the waiver of

immunity. See Iowa Code § 669.14; see also Maple v. City of Omaha, 384

N.W.2d 254, 260 (Neb. 1986) (acknowledging some exceptions to liability

in Nebraska’s political subdivisions tort claims act, but noting “[n]owhere 26

is there found an exemption for the exercise of a duty owed to the public

generally”); Brennen v. City of Eugene, 591 P.2d 719, 725 (Or. 1979) (en

banc) (“In abolishing governmental tort immunity, the Legislature

specifically provided for certain exceptions under which immunity would

be retained, and we find no warrant for judicially engrafting an additional

exception onto the statute.” (Citation omitted.)).

The phrase “the state shall be liable” in section 669.4 is susceptible

to two reasonable interpretations. It might mean only that the legislature

intended to remove the immunity the state previously enjoyed when it

otherwise owed a duty. But it might also mean the legislature intended

to lift the state’s immunity with certain enumerated exceptions and put

the state and private individuals on equal footing with respect to tort

liability. I believe the second interpretation is correct because it gives

meaning to the related phrase “to the same claimants, in the same

manner, and to the same extent as private individuals.” Iowa Code §

669.4; see id. § 4.4(2) (“The entire statute is intended to be effective.”);

Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 520 (Iowa 2012) (noting we

interpret statutes to give all words and phrases meaning while assuming

no provision is superfluous). We must give meaning to the legislature’s

clear expression of the principle of sameness in this tort liability context.

We recognized the importance of the sameness principle in 1979,

relying on an Alaska decision that rhetorically asked, “Why should the

establishment of duty become more difficult when the state is the

defendant?” Wilson v. Nepstad, 282 N.W.2d 664, 668 (Iowa 1979)

(quoting Adams v. State, 555 P.2d 235, 242 (Alaska 1976)). If the state is

to be treated like a private litigant, the public duty-doctrine must give

way because its practical effect is to “create immunity where the

legislature has not.” Adams, 555 P.2d at 242; see also Leake v. Cain, 27

720 P.2d 152, 160 (Colo. 1986) (en banc) (“[W]hether or not the public

duty rule is a function of sovereign immunity, the effect of the rule is

identical to that of sovereign immunity. Under both doctrines, the

existence of liability depends entirely upon the public status of the

defendant.”); Hudson v. Town of E. Montpelier, 638 A.2d 561, 566 (Vt.

1993) (“[A]lthough the [public-duty] doctrine is couched in terms of duty

rather than liability, in effect, it resurrects the governmental immunities

that have been abrogated or limited . . . .”). We further noted in Wilson

that “the trend in this area is toward liability,” Wilson, 282 N.W.2d at

667, and unequivocally concluded “[t]he legislature could not have

expressed better or more consistently its intention to impose in the same

manner as in the private sector . . . tort liability for negligence,” id. at

669. This year, the Illinois Supreme Court used similar reasoning in

concluding “the legislature’s enactment of statutory immunities has

rendered the public duty rule obsolete.” Coleman v. E. Joliet Fire Prot.

Dist., 46 N.E.3d 741, 756 (Ill. 2016). 8

8Illinois is the latest jurisdiction to join the group that has retreated from,

abolished, rejected, limited, or abandoned the public-duty doctrine. See, e.g., Adams, 555 P.2d at 241 (concluding the public-duty “doctrine is in reality a form of sovereign immunity, which is a matter dealt with by statute . . . and not to be amplified by court- created doctrine”); Leake, 720 P.2d at 160 (“[W]e reject the public duty rule in Colorado. . . . [T]he duty of a public entity shall be determined in the same manner as if it were a private party.”); Southers v. City of Farmington, 263 S.W.3d 603, 613 (Mo. 2008) (en banc) (“[T]his court is no longer willing to apply the judicially-created protections of the public duty doctrine in a way that would insulate government entities from tort liability where the legislature has expressly abolished such immunity.”); Maple, 384 N.W.2d at 260–61 (rejecting the public-duty doctrine but nonetheless concluding as a matter of law that the defendant did not breach the duty it owed); Schear v. Bd. of Cty. Comm’rs, 687 P.2d 728, 732, 734 (N.M. 1984) (declining to “breathe new life into” the public-duty doctrine because it is “a ghost of sovereign immunity . . . and is inconsistent” with the state tort claims act); Ficek v. Morken, 685 N.W.2d 98, 107 (N.D. 2004) (referring to those jurisdictions that retain the public-duty doctrine as “the minority view” and “refus[ing] to adopt the public-duty doctrine as a part of North Dakota law”); Wallace v. Ohio Dep’t of Commerce, 773 N.E.2d 1018, 1027 (Ohio 2002) (“It is spurious logic to conclude that a doctrine that is, by definition, available only to public defendants can be consistent with a statute mandating that 28

I acknowledge that we stated in 2007—after deciding Wilson—that

the public-duty doctrine is “alive and well in Iowa.” Raas v. State, 729

N.W.2d 444, 449 (Iowa 2007). I think that characterization of the

doctrine was inapt. Although we have applied the public-duty doctrine

since the ITCA’s enactment, we have repeatedly narrowed its scope and

often applied exceptions to it. See Kolbe v. State, 625 N.W.2d 721, 729

(Iowa 2001). _________________________ suits be determined in accordance with rules of law applicable to private parties.”); Brennen, 591 P.2d at 725 (“[A]ny distinction between ‘public’ and ‘private’ duty is precluded by statute in this state.”); Catone v. Medberry, 555 A.2d 328, 333–34 (R.I. 1989) (declining to revive the public-duty doctrine because it “would effectively smuggle back into law the doctrine of sovereign immunity that [the state tort claims act] was designed to constrain”); Hudson, 638 A.2d at 568 (declining to adopt the public-duty doctrine and concluding the doctrine is “confusing and inconsistent”); DeWald v. State, 719 P.2d 643, 653 (Wyo. 1986) (“The public-duty/special-duty rule was in essence a form of sovereign immunity and viable when sovereign immunity was the rule. The legislature has abolished sovereign immunity in this area. The public duty [doctrine] . . . is no longer viable.”); see also Beaudrie v. Henderson, 631 N.W.2d 308, 313–14 (Mich. 2001) (limiting the public-duty doctrine only to one category of cases involving police protection, and noting the doctrine, if applied any more broadly than that, “is tantamount to a grant of common-law governmental immunity”); Doucette v. Town of Bristol, 635 A.2d 1387, 1390 (N.H. 1993) (discarding the public-duty doctrine for municipal defendants in part because the doctrine never applied in that jurisdiction to state tort claims); Thompson v. Waters, 526 S.E.2d 650, 652 (N.C. 2000) (noting the public-duty doctrine had never been applied in that jurisdiction “to a claim against a municipality or county in a situation involving any group or individual other than law enforcement,” and declining to extend the doctrine any further). Utah and many other jurisdictions retain the public-duty doctrine. See Cope v. Utah Valley State Coll., 342 P.3d 243, 249–50 (Utah 2014); see also Ezel v. Cockrell, 902 S.W.2d 394, 399 & n.5 (Tenn. 1995) (listing jurisdictions that retained the doctrine as of 1995). However, the Utah court noted it “did not adopt the public duty doctrine until several years after the legislature first limited Utah’s sovereign immunity,” so “abrogation of absolute sovereign immunity could not impliedly extinguish a doctrine not yet recognized.” Cope, 342 P.3d at 249–50 (emphasis added). Iowa’s history is clearly different because we recognized and applied the public-duty doctrine well before the ITCA. See, e.g., Genkinger v. Jefferson County, 250 Iowa 118, 120, 93 N.W.2d 130, 132 (1958); Beeks v. Dickinson County, 131 Iowa 244, 248, 108 N.W. 311, 312 (1906); Held, 58 Iowa at 144, 12 N.W. at 228–29. Connecticut, which also maintains the public-duty doctrine, does so because “Connecticut has not abolished governmental immunity.” Gordon v. Bridgeport Hous. Auth., 544 A.2d 1185, 1197 (Conn. 1988). Although these are only two examples, they illustrate that we should not “choose a rule merely because a majority” of other jurisdictions follow a similar one. Luana Sav. Bank v. Pro-Build Holdings, Inc., 856 N.W.2d 892, 902 (Iowa 2014) (Wiggins, J., dissenting). 29

The state “is liable for tortious commissions and omissions when

authority and control over a particular activity has been delegated to it

. . . and breach of that duty involves a foreseeable risk of injury to an

identifiable class to which the victim belongs.” Wilson, 282 N.W.2d at

671. We have said the public-duty doctrine does not foreclose a claim

when the identifiable class of people to which the state (or a municipality

or county) owed a duty was “occupants of multi-family dwellings and

other specified structures” in Des Moines, id. at 672, “all those rightfully

using the roads” in Lee County, Harryman v. Hayles, 257 N.W.2d 631,

638 (Iowa 1977), overruled on other grounds by Miller v. Boone Cty. Hosp.,

394 N.W.2d 776, 781 (Iowa 1986), and “the traveling public” in Scott

County, Symmonds v. Chi., Milwaukee, St. Paul & Pac. R.R., 242 N.W.2d

262, 265 (Iowa 1976). We have also declined to apply the doctrine to

claims when the class of persons exposed to a risk created by

governmental actors is clearly limited. See Summy v. City of Des Moines,

708 N.W.2d 333, 344 (Iowa 2006) (invitees on a municipal golf course);

Adam v. State, 380 N.W.2d 716, 723 (Iowa 1986) (“producers doing

business with grain dealers”). In short, the public-duty doctrine is an

anachronistic common law framework that we often avoid—and we

should finally cut bait and abandon it altogether. Cf. Kent v. City of

Columbia Falls, 350 P.3d 9, 21 (Mont. 2015) (Cotter, J., concurring)

(suggesting the public-duty doctrine may no longer be viable in Montana

and asserting the courts in that state have “erred in expansively reviving

[governmental] immunity by resort to a judicially-created theory”). I

would disavow Kolbe and Raas to the extent they perpetuate the public-

duty doctrine.

But even if a majority of this court is not yet prepared to abandon

the doctrine completely, we should not apply it in this case. In Kolbe, the 30

plaintiff asserted the state negligently issued a driver’s license to a sight-

impaired driver, but we concluded “the licensing provisions in Iowa Code

chapter 321 . . . are for the benefit of the public at large” and therefore

applied the public-duty doctrine. Kolbe, 625 N.W.2d at 729. The facts

here are distinguishable. We are not dealing with a general licensing

statute or a broad duty of care owed by the State to members of the

general public from Larchwood to Keokuk, Hamburg to New Albin, and

everywhere in between. Instead, the duty I would recognize in this case

is one the State owed only to the boaters on Storm Lake who were

exposed to a risk of serious injury or death from the submerged dredge

pipe. Unlike the rather inchoate and generalized risk to any motorist or

pedestrian traversing an unspecified roadway that could be literally

anywhere in Kolbe, the risk allegedly created by the State and its

dredging agents endangered a limited universe of people at a specific

location. This very specific risk of serious injury or death affirmatively

created by the State and its agents in a dredging enterprise undertaken

for the benefit of the State makes this case more like Harryman and

Symmonds than Kolbe. In fact, the number of boaters exposed to the

risk in this case is probably smaller than the number of motorists

exposed to road hazards in Harryman and Symmonds—cases in which we

concluded the public-duty doctrine did not apply because the class of

persons exposed to the risk of physical injury was sufficiently limited and

identifiable. See Wilson, 282 N.W.2d at 672. And in this case—unlike in

Harryman and Symmonds—the risk was created by the affirmative acts of

actors whose conduct the State could control by prescribing terms for the

dredging activity. That differentiates this case from, for example, a

hypothetical scenario involving the State’s failure to remove a naturally

occurring hazard—like a ball of tree roots—from a waterway. See State 31

ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 537–38 (Mo. 1988) (en

banc).

The factually analogous cases from other jurisdictions that the

majority cites are less persuasive in my view. The Washington case

applied the public-duty doctrine only to a third-party beneficiary claim

based on statutory violations, saying nothing about common law

negligence claims. Ravenscroft v. Wash. Water Power Co., 969 P.2d 75,

84–85 (Wash. 1998) (en banc). As one Washington Supreme Court

justice later clarified, “the only governmental duties . . . limited by

application of the public duty doctrine are duties imposed by a statute,

ordinance, or regulation” and the Washington Supreme Court “has never

held that a government did not have a common law duty solely because

of the public duty doctrine.” Munich v. Skagit Emergency Commc’n Ctr.,

288 P.3d 328, 336 (Wash. 2012) (Chambers, J., concurring) (emphasis

added). Furthermore, I posit that the Missouri cases applying the public-

duty doctrine are no longer good law because they predated the Missouri

Supreme Court’s 2008 decision abandoning the public-duty doctrine for

government entities. Compare Barthelette, 756 S.W.2d at 538–39, and

Cox v. Dep’t of Nat. Res., 699 S.W.2d 443, 449 (Mo. Ct. App. 1985), with

Southers v. City of Farmington, 263 S.W.3d 603, 613 (Mo. 2008).

Although the Southers court concluded an individual defendant was

“eligible for the protections of the public duty doctrine,” it noted those

protections were “personal . . . and [could not] be extended to protect the

City.” Southers, 263 S.W.3d at 620.

There is yet another reason to review the public-duty doctrine

thoroughly and ultimately discard it or at least continue to apply it

narrowly. Our previous decisions applying the doctrine were based on

provisions in the Restatement (Second) of Torts. See Kolbe, 625 N.W.2d 32

at 729. Yet, as the majority recognizes, in 2009—after Raas declared the

public-duty doctrine alive and well, see Raas, 729 N.W.2d at 449—we

adopted the duty framework under the Restatement (Third) of Torts:

Liability for Physical and Emotional Harm. Thompson v. Kaczinski, 774

N.W.2d 829, 835 (Iowa 2009). Thompson revealed a new understanding

of the duty framework, removing foreseeability from the duty analysis

and expressing disinclination toward no-duty rules except in rare

circumstances. I do not suggest no-duty rules are completely

incompatible with the Restatement (Third). Indeed, as the majority

observes, the Restatement (Third) includes references to the public-duty

doctrine in certain comments. Restatement (Third) of Torts: Liab. for

Physical & Emotional Harm § 7 reporter’s note cmt. g, at 93–94 (Am. Law

Inst. 2012) [hereinafter Restatement (Third)]; id. § 37 cmt. i, at 7. Yet,

those references to the doctrine in the Restatement (Third) comments

and reporter’s notes 9 do not justify its muscular application favored by

the majority opinion in this case.

9The majority relies on the reporter’s note to conclude the public-duty doctrine perseveres under section 7 of the Restatement (Third) and undercuts the general duty of care. But the reporter’s note merely collects cases applying the doctrine, and the cases obviously predate the Restatement (Third)—so the reporter’s note takes no position on the doctrine’s continuing vitality under section 7. Restatement (Third) § 7 reporter’s note cmt. g, at 93–94. In fact, the actual comments—not the reporter’s notes—for section 7 suggest the no-duty rule inherent in the public-duty doctrine might be folded into the concept of discretionary-function immunity. See id. § 7 cmt. g, at 80 (“Courts employ no-duty rules to defer to discretionary decisions made by officials . . . .”). The reporter’s note, standing alone, is not nearly as significant as the majority suggests. Rather than maintaining the public-duty doctrine as part of the general duty of care under section 7, I conclude the Restatement (Third) instead relegates the doctrine to the status of a rare exception contemplated—but certainly not mandated—by section 37, consistent with the Restatement (Third)’s general disinclination toward no-duty rules. See id. § 7 cmt. a, at 78 (noting no-duty rules are only appropriate in limited circumstances); id. § 37 cmt. i, at 7 (acknowledging that the public-duty doctrine reflects “the concern that the judicial branch give appropriate deference to a coordinate branch of government when a decision allocates resources or involves other significant political, social, or economic determinations”). And even then, a court may determine an actor owes an affirmative duty of care notwithstanding section 37. Id. § 37, at 2. 33

As the majority notes, the Restatement (Third) provides that “[a]n

actor whose conduct has not created a risk of physical harm to another

has no duty of care to the other unless a court determines” the actor

owes an affirmative duty of care. Restatement (Third) § 37, at 2.

Sections 38–44 set forth affirmative duties a court might determine the

actor owes. See id. §§ 38–44. The affirmative duties recognized in those

sections, however, are nonexclusive. See id. § 37 cmt. g, at 7 (noting the

sections “recognizing certain relationships as imposing an affirmative

duty are stated nonexclusively, leaving to courts whether to recognize

additional relationships as sufficient to impose an affirmative duty”).

Even when the legislature has not created a private cause of action

for violation of a statute, when the interest protected is physical harm,

“courts may consider the legislative purpose and the values reflected in

the statute to decide that the purpose and values justify adopting a duty

that the common law had not previously recognized.” Id. § 38 cmt. c, at

22. Although I share the majority’s conclusion that the dredging

provisions in chapter 461A do not create a private cause of action

standing alone, I conclude the State’s ability to control the terms of

removal of silt from the lakebed through the permitting process, see Iowa

Code § 461A.53, is relevant to the existence of an affirmative common

law duty. Dredging structures in the water pose a risk of severe physical

injury or death to boaters—as this case tragically illustrates—and I

conclude the State’s involvement in creating such a risk justifies our

recognition of an affirmative duty in this case. Even though the State’s

employees did not directly create a risk by placing the dredge pipe in the

location where Foote encountered it and did not place the buoys marking

the pipe’s location on the date of the incident, I nonetheless conclude the

State had an affirmative duty of care to the plaintiffs under the 34

circumstances presented here. The State had statutory authority to

prescribe the terms of the dredging operation. This authority would

permit the State to mandate safety standards for locating the dredging

equipment and warning of its presence. Given its ownership of the

lakebed, the State also had the authority to inspect the dredge operation

and evaluate the operator’s compliance with the prescribed standards to

make the lake reasonably safe for visitors. 10

The relationship between boaters and the State informs my

conclusion that the State owed an affirmative duty. Like the golfer in

Summy, who the City of Des Moines invited to engage in recreational

activity at the Waveland Golf Course, the State invited Foote to use his

boat on Storm Lake. See Summy, 708 N.W.2d at 341. Although Foote

did not pay a separate fee on the day of the incident for the opportunity

to use the boat on Storm Lake, he did pay a fee to register his boat as a

cost of using the State’s waters. I find unpersuasive and immaterial the

majority’s factual distinction that other golfers on the course in Summy

could not move about freely the way boaters on Storm Lake can.

My conclusion the State owed a duty does not automatically mean

it breached the duty; duty and breach analysis are separate. See Woods

v. Dist. of Columbia, 63 A.3d 551, 561 (D.C. 2013) (Oberly, J., concurring

in the judgment) (asserting that even if courts discard the public-duty

doctrine, “[t]he citizen might not ‘win’ because [he or] she still must prove

the basic elements of a cause of action”). However, because I conclude

the public-duty doctrine is no longer viable, and even if it is, the State

10Iwould hold the State’s duty as the lakebed’s owner to keep the premises in a reasonably safe condition “is a nondelegable duty.” Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 703 (Iowa 1995). Although the State could cede performance of that duty to the Lakeside Improvement Commission, it cannot avoid liability for nonperformance by doing so. See id. at 704. 35

owed a duty in this case to an identifiably narrow group of people, a jury

should resolve the question whether the State failed to exercise

reasonable care. Summary judgment on the public-duty doctrine ground

was unwarranted.

II. Discretionary-Function Immunity.

The majority does not reach this issue, but I would hold the

discretionary-function exception to the waiver of sovereign immunity

does not apply here. Discretionary-function immunity only protects

governmental actors’ decision-making based on policy considerations.

See Anderson v. State, 692 N.W.2d 360, 364 (Iowa 2005); accord Walker

v. State, 801 N.W.2d 548, 555 (Iowa 2011). Furthermore, “we narrowly

construe the discretionary function exception.” Walker, 801 N.W.2d at

555. “[L]iability . . . is the rule and immunity is the exception.” Schmitz

v. City of Dubuque, 682 N.W.2d 70, 74 (Iowa 2004); accord Graber v. City

of Ankeny, 656 N.W.2d 157, 161 (Iowa 2003).

We apply a two-step test to evaluate whether a challenged act

qualifies for the discretionary-function exception. Schneider v. State, 789

N.W.2d 138, 146 (Iowa 2010). First, we “consider whether the action is a

matter of choice.” Anderson, 692 N.W.2d at 364. If it is, we proceed to

determine whether that choice “is of the kind the discretionary function

exception was designed to shield.” Id.; see also Berkovitz v. United

States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958–59, 100 L. Ed. 2d 531,

540–41 (1988) (setting out the same two-part test under the Federal Tort

Claims Act); Goodman v. City of Le Claire, 587 N.W.2d 232, 238 (Iowa

1998) (adopting Berkovitz in Iowa). Both prongs of the test are

important; “the mere exercise of judgment is not sufficient to establish

discretionary-function immunity because some form of judgment is

exercised in virtually all human endeavors.” Schmitz, 682 N.W.2d at 73. 36

“The first step in our analysis is to determine the exact conduct

that is at issue.” Walker, 801 N.W.2d at 556. To be sure, the State made

a choice in this case, but it was a limited one—to allow improvement of

Storm Lake by dredging. Thus, the immunity might apply if the estate

challenged the State’s decision whether to allow dredging. See Anderson,

692 N.W.2d at 366 (concluding the discretionary-function exception

applied to a university’s decision whether to keep its library open during

a severe winter storm); Goodman, 587 N.W.2d at 239–40 (concluding the

discretionary-function exception applied to a city’s decision whether to

excavate an abandoned landfill); cf. MS Tabea Schiffahrtsgesellschaft

MBH & Co. v. Bd. of Comm’rs, 636 F.3d 161, 168 (5th Cir. 2011)

(concluding the federal discretionary-function exception barred “failure to

dredge claims”). But the estate makes no such claim. Instead, it

contends that, having made the initial decision to allow dredging, it was

the State’s duty, in view of the severe risk of injury or death to boaters

using the lake, to exercise reasonable care in prescribing safety

standards to be followed by the dredge operators and evaluating the

operators’ compliance with those standards. I agree. The actionable

conduct is not the initial decision whether to allow dredging, but the

follow-on decisions about safe maintenance and operation of the dredge.

“Having identified the conduct that allegedly caused the plaintiffs’

harm, the question becomes whether the conduct is of the type that the

legislature sought to immunize.” Ette v. Linn-Mar Cmty. Sch. Dist., 656

N.W.2d 62, 68 (Iowa 2002). Unless the State “genuinely could have

considered and balanced factors supported by social, economic, or

political policies, we will not recognize the discretionary function

immunity.” Anderson, 692 N.W.2d at 366. The State contends its

decisions rested on a balancing of public policy factors such as safety, 37

conservation, and water quality. However, “[t]he mere existence of a

sweeping safety consideration does not catapult the [State]’s actions into

the zone of immunity.” Graber, 656 N.W.2d at 166. “Almost every

decision made by a public employee is done with respect to general safety

considerations.” Id. Furthermore, while the initial decision to allow

dredging may have properly considered some environmental factors, I

find it much less likely that the number or location of warning buoys

placed on the dredge pipe could have had any appreciable effect on water

quality or conservation efforts. Because the State “has not articulated

any . . . policy concerns central to its actions, it has not met its burden to

show the discretionary function immunity applies.” Messerschmidt v.

City of Sioux City, 654 N.W.2d 879, 883 (Iowa 2002).

III. Conclusion.

The majority expands the public-duty doctrine “far more broadly

than is necessary to strike the proper balance between protecting the

[State] from sweeping liability . . . and allowing [its] citizens the chance to

prove that their government has failed them miserably.” Woods, 63 A.3d

at 558. Even if we retain the doctrine—and I submit we should not—its

application is inappropriate under the circumstances presented here.

Furthermore, I believe the discretionary-function exception does not

protect the State beyond its initial decision whether to allow dredging. I

therefore respectfully dissent in part.

Wiggins and Appel, JJ., join this concurrence in part and dissent

in part.