Bawek v. Kawasaki Motors Corp.

313 N.W.2d 501, 1981 Iowa Sup. LEXIS 1098

• Court: Supreme Court of Iowa
• Decided: December 23, 1981
• Docket: No. 65685
• Status: Published

Opinions

HARRIS, Justice.

Plaintiffs brought this suit for contribution and indemnity after paying damages to a person injured in a boating accident. Recovery was sought against other defendants on products liability theories. In this related but separable claim, plaintiffs sought contribution and indemnity against Delaware County and now appeal from a trial court ruling which dismissed the claims against the county. We affirm the trial court.

The plaintiff New Hampshire Insurance Company, as insurer, paid the claims in behalf of the plaintiff Gerald E. Bawek, the insured. For simplicity we shall refer to Bawek as the sole plaintiff. Because this is an appeal from dismissal on the pleadings we take the facts as alleged in the petition.

On June 23, 1978, plaintiff operated his power boat on Lake Delhi in Delaware County. Kay E. Kreeb had been operating a water vehicle described as “a Kawasaki jet ski” in a portion of the lake which was open to machine powered vehicles. She was lying flat in the water, on her stomach, attempting to remount the jet ski when she was struck by plaintiff’s power boat. As a result of the accident the plaintiff paid a substantial sum to Mrs. Kreeb and her husband for injuries sustained in the accident.

The gist of plaintiff’s dismissed claim against the county is that the county was negligent in its failure “to set and enforce rules and regulations regarding the operation and use of powered vessels on Lake Delhi.” Plaintiff believes that such a duty can be inferred from what he says are five operative facts alleged: (1) defendant is a county, (2) plaintiffs were injured, (3) the accident occurred on Lake Delhi, Delaware County, Iowa, (4) damages result from personal injuries sustained on Lake Delhi, and (5) Delaware County was negligent in “its common law duty to exercise ordinary care under the circumstances.”

Plaintiff believes that, with the advent of “notice pleading,” under Iowa R.Civ.P. 69, his allegations are enough. He thinks his allegations constitute “a short and plain statement of the claim showing [he] is entitled to relief,” under rule 69. Technical forms of pleading are now abolished. Iowa R.Civ.P. 67.

Citing Symmonds v. Chicago, M., St. P. & P. R. Co., 242 N.W.2d 262, 264-65 (Iowa 1976), and Lindquist v. D. M. Union Ry. Co., 239 Iowa 356, 360, 30 N.W.2d 120, 122 (1947), the plaintiff argues that breach of a common law duty can be inferred from the foregoing. That duty is to set and enforce rules and regulations to govern the operation of power boats on the lake.

Notice pleading, though in many ways revolutionary, does not go far enough to rescue plaintiff here. It does not create a duty where it would otherwise not exist. We know of no statutory or common law duty which would require a county to adopt or enforce rules for operating vessels on all bodies of water which might exist within the county. Neither can we imagine how such a duty could arise only by reason of the facts which plaintiff alleges. The principal fact alleged is the existence of the lake within the county. This is not enough to support plaintiff’s assertion of the existence of some common law duty to adopt water traffic regulations. The trial court was right in dismissing plaintiff’s claim against the county.

AFFIRMED.

All Justices concur except REYNOLD-SON, C. J., and LARSON and McCOR-MICK, JJ., who dissent.