Emigdio Gutierrez and Claudia Mesillas Diaz, Individually and as Parents of Eduardo Gutierrez, and Eduardo Gutierrez, Individually v. Denison Community School District

Opinion

IN THE COURT OF APPEALS OF IOWA

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No. 25-0591

Filed August 19, 2026

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Emigdio Gutierrez Mena and Claudia Mesillas Diaz, Individually and as Parents of Eduardo Gutierrez, and Eduardo Gutierrez, Individually, Plaintiffs–Appellants,

v.

Denison Community School District, Defendant–Appellee.

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Appeal from the Iowa District Court for Crawford County, The Honorable Patrick H. Tott, Judge.

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AFFIRMED

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Stanley E. Munger (argued) of Munger, Reinschmidt & Denne, LLP, Sioux City, and Patrick D. Kuehl of Law Offices of Patrick D. Kuehl, Dakota Dunes, South Dakota, attorneys for appellants.

Zachary D. Clausen (argued), Douglas L. Phillips (until withdrawal), and Timothy A. Clausen of Klass Law Firm, L.L.P., Sioux City, attorneys for appellee.

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Heard at oral argument

by Tabor, C.J., Greer, Ahlers, Badding, and Langholz, JJ., and Vogel, S.J.

Opinion by Greer, J. Dissent by Tabor, C.J.

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GREER, Judge.

Emigdio Gutierrez Mena and Claudia Mesillas Diaz, the parents and conservators of Eduardo (Eddy) Gutierrez, and Eddy individually (the Gutierrezes), brought this negligence and premises-liability action against the Denison Community School District (DCSD). Eddy sustained traumatic injuries after his truck collided with another in the Denison High School parking lot. DCSD moved for summary judgment, and the district court granted the motion.

On appeal, the Gutierrezes argue that the district court erred by (1) finding DCSD owed Eddy no duty of care under Godar v. Edwards 1 (2) finding the public-duty doctrine nevertheless barred their claims and (3) granting summary judgment on their premises-liability claim after finding no evidence of a known dangerous condition on the property. DCSD contends that (1) the district court properly concluded it did not owe a duty of care under Godar (2) the public-duty doctrine bars the Gutierrezes’ claims (3) the premises-liability claim fails and (4) DCSD is entitled to immunity under Iowa Code section 670.4 (2021).

First, we find that DCSD owed no duty to Eddy as a student under the facts as presented here. Because the court did not err in finding the public- duty doctrine applies, we affirm the grant of summary judgment in favor of DCSD. Based upon our decision on these other grounds, we need not address the application of the Iowa Code chapter 670 immunities. We affirm.

1 588 N.W.2d 701 (Iowa 1999).

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I. Background Facts and Proceedings.

Around 10:30 p.m. on April 23, 2021, the Friday night before prom, several teenagers were gathered in the Denison High School parking lot. Some were students at the school, others were not. Students reported to police that people hang out there “[a]lmost every night” and that “most of the people are from Denison.” School administrators were aware of students gathering in the parking lot for over a decade. DCSD had a philosophy “that there was much more good out of them hanging [out] on school grounds than not.” Around forty people were in the lot on the night of the accident. People were lining up their cars and racing through the parking lot. The lot also contained several parked cars. Denison Police Officer Nicholas Groth had received a message that people were drag racing in the lot. He went to the lot but did not observe any racing. He explained that the people in the lot “were being decent, you know, just hanging out,” and so he left.

Eventually Eddy and August Boettger, who were seventeen at the time of the incident, joined the others in the lot. August testified that he was not drag racing but was showing off his truck’s exhaust to people. It was reported, however, that August was racing his truck against two cars. The cars were driven by Drake Igou Teneyck and Pedro Mena Jr. The two cars were next to each other in a lane, and August’s truck was in the lane to the left. August was driving south and did not see Eddy headed north due to a parked pickup truck obstructing his view. August’s truck collided with the driver’s side of Eddy’s truck. From the accident, Eddy sustained traumatic injuries to his brain, hips, right arm, and right leg. Officer Groth was one of the first responders called to the scene. In response to the call he said, “I think these kids are drag racing, I bet.”

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In September 2022, the Gutierrezes filed a petition against August and his parents (the Boettgers) and Drake and his parent (the Teneycks). In March 2023, the Gutierrezes filed an amended petition, adding DCSD as a defendant. The Gutierrezes claimed negligence. In September, DCSD and the Boettgers each amended their answers to assert a cross-claim against the Teneycks and filed a cross-petition against Pedro and his parent.

The Gutierrezes eventually dismissed all parties except DCSD.2 In Spring 2024, they filed second and third amended petitions. In December, DCSD filed a summary-judgment motion claiming that it was immune from liability under Iowa Code section 670.4(1)(c) and (h) that the public-duty doctrine barred the Gutierrezes’ claims and that the Gutierrezes’ third amended petition failed to meet the pleading standard required under Iowa Code section 670.4A(3) to state an actionable negligence claim. In January 2025, the Gutierrezes filed a fourth amended petition. In March, the district court allowed the fourth amended petition and granted DCSD’s motion for summary judgment. The Gutierrezes appeal.

II. Error Preservation.

Both DCSD and the Gutierrezes make error-preservation claims. “It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We address each claim in turn.

A. Preservation of the Gutierrezes’ Claims Under Iowa Code Section 279.66 and DCSD Policies 503.1 and 804.6R1. DCSD challenges

2 In December 2023, the Gutierrezes dismissed all claims against the Teneycks.

And in August 2024, the Gutierrezes dismissed all claims against the Boettgers.

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the Gutierrezes’ preservation of error as to arguments under Iowa Code section 279.66 and DCSD policies 503.1 and 804.6R1, including the impact those have on the duty owed by DCSD. Specifically, DCSD contends that the Gutierrezes waived these arguments by not making them in their resistance to DCSD’s motion for summary judgment. In response to the challenge to the chapter 279 arguments, the Gutierrezes claim the district court read their fourth amended petition, which referenced chapter 279, and “found it did not change the issues in the case.”

The district court explained in its order why it allowed the Gutierrezes’ fourth amendment to the petition:

The [Gutierrezes] admit i[n] their argument in support of their motion that they are not now making claims for breach of contract, to do so would clearly substantially change the issues before the Court clearly to the prejudice of [DCSD] at this late stage of the proceedings.

As the Court has determined and has interpreted the proposed amended petition to simply be setting forth additional allegations of purported negligence by [DCSD] the Court finds that the proposed amendment would not substantially change the issues involved in this case.

. . . [T]hese new allegations of negligence survive or fail just as the prior allegations of negligence do, i.e. whether or not [DCSD] owed the [Gutierrezes] any duty in the first place, and if they did, are they immune from liability. Accordingly, as the Court does not find unfair prejudice to [DCSD] to allow the current Motion to Amend, the [Gutierrezes’] Motion to Amend is granted and the Fourt[h] Amended Petition is deemed filed as of the date of the filing of the motion.

At the summary judgment stage, the Gutierrezes did not make any arguments in their resistance about section 279.66 or DCSD policies 503.1 and 804.6R1, nor did they discuss the impact these provisions had on any duty DCSD owed to the Gutierrezes. “Where an issue is not raised in resistance to a motion for summary judgment, and is not included in a motion

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pursuant to Iowa Rule of Civil Procedure 1.904(2), it is waived.” Susie v. Bennett, No. 06-0116, 2006 WL 3436433, at *4 (Iowa Ct. App. Nov. 30, 2006) (citing Davison v. State, 671 N.W.2d 519, 521 (Iowa Ct. App. 2003)). Thus, the Gutierrezes’ arguments under Iowa Code section 279.66 and DCSD policies 503.1 and 804.6R1 are waived.

B. Preservation of DCSD’s Claims Under Iowa Code Section 670.4. The Gutierrezes contend that DCSD did not preserve error on its arguments regarding immunity defenses under Iowa Code section 670.4(1)(c) and (h). “[E]very municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.” Iowa Code § 670.2(1). Municipalities include school districts. Id. at § 670.1(2) see also City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 18 (Iowa 2000) (“Iowa Code chapter 670 governs tort liability of governmental subdivisions, including school districts . . . .”). Specifically, the Gutierrezes challenge whether the issue was ruled upon. The district court order granted DCSD’s motion for summary judgment but did not rule on DCSD’s immunity defenses under the discretionary-function exemption in Iowa Code section 670.4(1)(c) and the state-of-the-art exemption in section 670.4(1)(h). But “[a] successful party, without appealing, may attempt to save a judgment on appeal based on grounds urged in the district court but not considered by that court,” so we can consider these alternative arguments. Moyer v. City of Des Moines, 505 N.W.2d 191, 193 (Iowa 1993).

Even so, we need not address the immunity protection found in Iowa Code chapter 670 given our resolution on other grounds.

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III. Standard of Review.

We review a ruling on a motion for summary judgment for correction of errors at law. Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 800 (Iowa 2019). “Summary judgment is proper when the moving party has shown there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” EMC Ins. Grp., Inc. v. Shepard, 960 N.W.2d 661, 668 (Iowa 2021) (cleaned up). “We review evidence in the light most favorable to the nonmoving party.” Id. (citation omitted).

IV. Analysis.

We start with the analysis of whether DCSD owed a duty of care to Eddy as a student. After that, we consider the application of the public-duty doctrine to any other potential duty that might apply.

“Duty is a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” Burton v. Des Moines Metro. Transit Auth., 530 N.W.2d 696, 699 (Iowa 1995). “Whether a duty arises out of a given relationship is a matter of law for the court’s determination.” McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 371 (Iowa 2012) (citation omitted). To have a successful negligence claim, the Gutierrezes must first show that DCSD owed a legal duty of care to Eddy. The Gutierrezes assert there are two avenues to a duty determination: (1) student-school relationship or (2) land possessor-entrant relationship. We start with their assertion that DCSD owed Eddy a duty of care because he was a student at the school.

A. Eddy—The Student. DCSD maintains the district court properly followed the logic of Godar, which explains that “[t]he law charges school

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districts with the care and control of children and requires the school district to exercise the same standard of care toward the children that a parent of ordinary prudence would observe in comparable circumstances.” 588 N.W.2d at 708 (cleaned up). “The duty of a school district concerning the supervision and safety of students is not unlimited.” Id. “Rather, the scope of the school district’s duty is limited by what risks are reasonably foreseeable.” Id.

Still, we recognize that Godar was decided under the Restatement (Second) of Torts, and we have since adopted the duty analysis in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (A.L.I. 2012) [hereinafter Restatement (Third)]. See Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 775–76 (Iowa 2013) see also Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009). To remain current, we must analyze whether that change would result in a different outcome than Godar might suggest. Our analysis under the Restatement (Third) is different than what was used under Godar.

Godar concerned the negligent supervision of a school district employee who sexually abused a student on school property. 588 N.W.2d at 706–07. There, in determining duty, the court considered that the scope of the school district’s duty to the student was “limited by what risks are reasonably foreseeable.” Id. at 708. But under the Restatement (Third), we are to address whether there is a duty without regard to foreseeability. See Restatement (Third) § 7 cmt. j (“Despite widespread use of foreseeability in no-duty determinations, this Restatement disapproves that practice and limits no-duty rulings to articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.”) see also Morris v.

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Legends Fieldhouse Bar & Grill, LLC, 958 N.W.2d 817, 822 (Iowa 2021) (“[F]oreseeability should not enter into the duty calculus but should be considered only in determining whether the defendant was negligent.” (cleaned up)). We instead focus on whether a duty exists.

Returning to the duty analysis, under the Restatement (Third), “[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.” Restatement (Third) § 40(a). And specifically, as to the student-school relationship, “[a]s with the other duties imposed by this [s]ection, it is only applicable to risks that occur while the student is at school or otherwise engaged in school activities.” Id. at § 40 cmt. l.

To extend the duty of care to the current facts, the Gutierrezes allege that “Eddy was a student in the care of [DCSD]” at the time of the accident in the school parking lot. Additionally, they argue that DCSD allowed, incentivized and encouraged Eddy and others to routinely hang out in the student parking lot after hours not in connection with school activities, even though they knew or reasonably should have known that the people who they allowed to gather in the parking lot sometimes used drugs, drank alcohol and drove dangerously.

Further, the Gutierrezes contend the district court’s reasoning failed to account for DCSD’s statutory obligations under Iowa Code sections 274.1, 279.8, and 279.66.3 And, they point to several school policies on student

3 Iowa Code section 274.1 provides:

Each school district shall continue a body politic as a school corporation, unless changed as provided by law, and as such may sue and be sued, hold property, and exercise all the powers granted by law, and shall have exclusive jurisdiction in all school matters over the territory therein contained.

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conduct, the use of motor vehicles, and the community using school property as setting up a duty to provide “for the care and safety of its students.” But the district court focused on DCSD’s duty to Eddy as a student and whether Eddy was “placed in the care” of the school that evening, finding:

While it may be true that [DCSD] and Eddy have a “special relationship” that exists during the school day or after school activities, that “special relationship” does not exist when Eddy has not been placed in the care of the school district and is simply present, well after school hours, with other members of the public at large.

As for the policies and other statutory obligations involving the role of DCSD, though DCSD’s policies could be enforced against students, this does not mean that there was a duty of care imposed on DCSD. See Kershner v. City of Burlington, 618 N.W.2d 340, 345 (Iowa 2000) (“We also find no

Iowa Code section 279.8(1) provides, in relevant part:

The board shall make rules for its own government and that of the directors, officers, employees, teachers and pupils, and for the care of the schoolhouse, grounds, and property of the school corporation, and shall aid in the enforcement of the rules, and require the performance of duties imposed by law and the rules.

Iowa Code section 279.66 provides:

The board of directors of a school district shall review and modify existing policies related to student discipline and student conduct that are designed to promote responsible behavior on school property and at school functions in order that the policy shall govern the conduct of students, teachers and other school personnel, and visitors provide opportunities for students to exercise self-discipline and practice cooperative classroom behavior and encourage students and practitioners to model fairness, equity, and respect. The policy shall specify the responsibilities of students, parents and guardians, and practitioners in creating an atmosphere where all individuals feel a sense of respect, safety, and belonging, and shall set forth the consequences for unacceptable behavior. The policy shall be published in the student handbook.

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evidence that the city, by adoption of the written . . . policy, intended to impose on itself or its employees a mandatory duty of care toward persons within the city so as to provide a basis of civil liability for damages . . . .”). We do not find the school policies or the statutes establish a duty to Eddy when no school-sanctioned activity was taking place and when outside of the regular school hours. And the statutory obligations pertain to situations involving school operations, which the activity in the parking lot certainly was not.

So, under these undisputed facts, is there a special school-student relationship requiring DCSD to owe Eddy a legal duty of care? We return to the Restatement (Third) to find if there is a duty. We have no Iowa cases that have applied the Restatement (Third) “no duty” analysis in a school case where the incident occurred after hours on school property unrelated to any school activity. Most of our reported cases involve student injury off-site, so they are not directly on point. See Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 695 (Iowa 2013) (declining to address a no-duty argument on appeal because it was not “adequately brought to the district court’s attention”) see also Hill v. Damm, 804 N.W.2d 95, 99–105 (Iowa Ct. App. 2011) (analyzing scope of liability and foreseeability of the school’s hired bus driver off-site under the Restatement (Third) rubric, but only discussing the concept of duty under pre-Thompson caselaw and not considering a “no duty” claim).

Our on-site school case applying the Restatement (Third) is not helpful either because it addresses behavior at a school-sanctioned event on another school’s grounds. See Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 388, 390–91 (Iowa 2010) (recognizing the duty to control the student’s behavior, but examining if the court, in a bench trial, correctly

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decided if the school failed to exercise reasonable care). “[S]chool districts have a duty of reasonable care in providing for the safety of students from the harmful actions of fellow students, a teacher, or other third persons.” Id. at 390–91. DCSD counters that “the duty imposed on schools by Godar does not exist 24 hours a day, 7 days a week.” It emphasizes that the duty only exists when a student is under both the “care and control” of a school. Yet, in Mitchell, Justice Waterman’s dissent opined that because the issue of duty was not preserved in that case, the “door” was still open to determine if a school district’s “duty of care is limited ‘to risks that occur while the student is at school or otherwise engaged in school activities.’” 832 N.W.2d at 706 (Waterman, J., dissenting) (quoting Restatement (Third) § 40 cmt. l). This presumably leaves the question of what “at school” might mean.

On our review, we ask, once Eddy left school for the day and while not engaged in school activities, did DCSD’s duty to him end? Should we not look at the existence of the duty as a legal matter “before the case-specific facts are considered”? Dinsmoor v. City of Phoenix, 492 P.3d 313, 319 (Ariz. 2021) (citation omitted) see also id. (noting the court previously “warned against equating the concept of duty with specific details of conduct as doing so would conflate the issue with the concepts of breach and causation” (cleaned up)). We address these questions by examining section 40 of the Restatement (Third) for guidance. The affirmative duty in this section is in addition to the ordinary duty of a school to exercise reasonable care in its operations for the safety of its students and the duties provided in Chapter 9 to entrants on the land. The relationship between a school and its students parallels aspects of several other special relationships—it is a custodian of students, it is a land possessor who opens the premises to a significant public population, and it acts partially in the place of parents.

Restatement (Third) § 40 cmt. l.

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Still, as to the student-school relationship, the burden on the school to exercise care and control should have some reasonable end. We borrow from the Mitchell dissent, which pointed to a Florida appellate court decision. See Mitchell, 832 N.W.2d at 711 (Waterman, J., dissenting). There, the Florida court declined to make schools the insurers of student safety after the student left school for the day, finding that:

a school has no duty to supervise off-campus, non-school related activities occurring during non-school hours. Any holding to the contrary would essentially make school officials insurers of all students’ safety until the students return home each day. We decline to place such an unreasonable and onerous burden on school officials. At some point, we believe that a school’s obligation of reasonable supervision must come to an end and the parent or guardian’s duty of supervision must resume. That logical point, we think, should be when the student leaves the school’s premises during non-school hours and is no longer involved in school-related activities.

Id. at 712 (emphasis added) (quoting Concepcion v. Archdiocese of Mia., 693 So. 2d 1103, 1105 (Fla. Dist. Ct. App. 1997)).

Given the guidance from the Restatement (Third), we find that Eddy, the student, was no longer under the “care and control” of DCSD once he left school grounds after the school day ended. It is undisputed that no school-sponsored activities were ongoing at the time of the incident. We decline to extend DCSD’s duty beyond those “risks that occur while the student is at school or otherwise engaged in school activities.” Restatement (Third) § 40 cmt. l. We take “at school” to mean that Eddy was actually in attendance at the school for educational reasons or school-sponsored events. DCSD’s duty of care did not extend to Eddy as a student at the time of his injury.

But the duty analysis does not end there. We next look at Eddy’s status as an entrant on DCSD’s land.

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B. Other Duties Owed to Eddy and the Application of the Public-

Duty Doctrine. The Gutierrezes argue that DCSD created the risk that led to the harm by allowing the public to congregate in the parking lot when DCSD knew that dangerous activities occurred there. Addressing the premises-liability claim, the district court aptly noted that there is no evidence regarding a known condition on the premises that involved an unreasonable risk of injury to [Eddy]. Nothing regarding the condition of the school parking lot created an unreasonable risk of injury to anyone other than the parking lot existed. As stated above, there were no unmarked speed bumps, no lights that were not working, no large cracks or other defects in the parking surface, no unmarked barriers, etc. The [Gutierrezes’] claims focus on additional improvements or actions that would have made the parking lot safer. But for the actions of the other people present in the parking lot in the evening in question, there was nothing in the parking lot or its condition which by itself created an unreasonable risk of injury to anyone, [Eddy] included.

We note the district court did not address DCSD’s duty to Eddy as a land entrant but instead focused on the factual cause of Eddy’s injury. But, even the Gutierrezes characterized the duty to those people congregating at the parking lot as a duty to the general public. So, although under their premises-liability claim, 4 the Gutierrezes would have us apply the special relationship under Restatement (Third) section 40(b)(3) between DCSD as the land possessor and Eddy as a land entrant and allow them to pursue their claims in court, we bypass the duty analysis because the public-duty doctrine resolves the question.

4 To have a successful premises-liability negligence claim, the Gutierrezes “must prove: (1) ‘a duty to conform to a standard of conduct to protect others’ (2) ‘a failure to conform to that standard’ (3) ‘factual cause and scope of liability’ and (4) ‘damages.’” Ruby v. Sheehan, No. 23-0596, 2024 WL 1548798, at *3 (Iowa Ct. App. Apr. 10, 2024) (quoting Thompson, 774 N.W.2d at 834, 837).

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The Gutierrezes assert the district court incorrectly applied the public-duty doctrine. DCSD counters that the public-duty doctrine applies to the Gutierrezes’ common law negligence claim because the duty goes to the public at large and not to Eddy in particular. Agreeing with this premise, the district court addressed the public-duty doctrine by determining that enforcement of school policies involving the parking lot “would go to the benefit of all people who might be present in the school parking lot” because school was not in session and there were no school-sanctioned activities. While the Gutierrezes’ arguments focused on the duty owed to Eddy as a student, they did argue, as a “second reason” for establishing a duty to keep the parking lot safe was that it “would go to the benefit of all people that might be present.” (Emphasis added.).

In our approach to the question, we find helpful the process suggested by Cope v. Utah Valley State College, 342 P.3d 243, 252 (Utah 2014), which was cited approvingly by our supreme court in Breese v. City of Burlington, 945 N.W.2d 12, 20–21 (Iowa 2020). There, the Utah court opined that “[e]xamining the special relationship exception first, however, distorts the public duty doctrine” and suggested that the “courts must first determine whether a plaintiff’s theory of liability rests upon a public duty.” Cope, 342 P.3d at 253. We find that the Gutierrezes’ theory of liability is based upon DCSD’s obligation to provide a safe parking lot to all members of the public as entrants on the land.

We first note that the public-duty doctrine applies when (1) “the injury to the plaintiff was directly caused or inflicted by a third party or other independent force,” and (2) “the plaintiff alleges a governmental entity or actor breached a uniquely governmental duty, usually, but not always, imposed by statute, rule, or ordinance to protect the plaintiff from the third

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party or other independent force.” Fulps v. City of Urbandale, 956 N.W.2d 469, 473–74 (Iowa 2021). “The public-duty doctrine is properly understood as a limit on suing a governmental entity for not protecting the public from harm caused by the activities of a third party.” Id. at 475. “Instead of protecting a governmental entity from liability for the breach of what would otherwise be an enforceable duty to plaintiffs as immunity does, the public-duty doctrine examines whether the governmental entity owed any enforceable duty to plaintiffs to begin with.” Breese, 945 N.W.2d at 18. “Under the public-duty doctrine, a duty to all is a duty to none.” Id. (cleaned up). However, the public-duty doctrine will not apply if a special relationship exists between the plaintiff and the government. Fulps, 956 N.W.2d at474. And as a part of the court’s role, we examine whether there are reasons to apply a duty or to allow for a no-duty determination. See Restatement (Third) § 7 cmt. a (“Courts appropriately address whether such liability should be permitted as a matter of duty. Courts may also, for the same reasons, determine that modification of the ordinary duty of reasonable care is required.”).

For example, in a pre-Restatement (Third) case, the public-duty doctrine did not apply to bar a plaintiff’s claim against the State for injury caused by third-party escapees that occurred in a parking lot at a state prison facility during regular visiting hours. Raas v. State, 729 N.W.2d 444, 446, 448–50 (Iowa 2007) (applying the Restatement (Second) of Torts relating to a duty to control third parties). In a short analysis, Raas found that because the plaintiff was visiting a relative at the facility and thus, legally in the parking lot, he had a special relationship as an invitee, so the public-duty doctrine did not apply. Id. at 450. Similarly, another pre-Restatement (Third) premises-liability case determined that the public-duty doctrine was inapplicable to a case involving an injury to a golfer on a city golf course

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“because the City’s duty was one owed to invitees on the golf course, not to the public at large.” Summy v. City of Des Moines, 708 N.W.2d 333, 344 (Iowa 2006), overruled on other grounds by, Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016).

But we must consider whether the adoption of the Restatement (Third) duty analysis in Thompson, 774 N.W.2d at 835, impacted the analysis of a premises-liability claim and the public-duty doctrine. After Thompson, our supreme court decided Estate of McFarlin v. State, 881 N.W.2d 51 (Iowa 2016). The plaintiffs in McFarlin brought several claims against the State after a boy was killed in a boating accident on Storm Lake when the boat’s driver struck a submerged dredge pipe. 881 N.W.2d at 52–54. One of the issues in McFarlin was whether the public-duty doctrine barred the plaintiffs’ common law tort claims. Id. at 58. Our supreme court, in evaluating the claims, referenced the reporter’s note to comment g in Restatement (Third) section 7, which discussed 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.

Id. at 59–60 (second emphasis added) (citation omitted).

The court in McFarlin next reiterated that, under the Restatement (Third), “an 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.” Id. at 60 (cleaned up) (quoting Restatement (Third) § 37). Further, the court addressed the duty of care based on a special relationship found in section 40 of the Restatement (Third) and distinguished Summy to support its

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conclusion that the public-duty doctrine applied to bar the plaintiffs’ common law tort claims against the State as the owner of the lake. Id. at 59–62.

In McFarlin, to respond to the plaintiffs’ premises-liability-invitee argument that the injured boater on Storm Lake was like the injured golfer on the city golf course in Summy, the court found it persuasive that unlike the golfer who was not allowed to “wander freely” around the property, the boaters could traverse the lake without restriction, did not have to pay for its use, and could “come and go as they please, like motorists using public roads.” Id. at 60–61 see also id. (distinguishing that other entities were involved with Storm Lake, including those responsible for the dredging equipment). Focusing on the State’s responsibilities as the owner of the lake, McFarlin held “the State’s safety-related duties at Storm Lake were owed to the general public, and [the court] decline[d] to recognize a special relationship or particularized class of recreational boaters to avoid the public- duty doctrine.” Id. at 63.

Next, in Johnson v. Humboldt County, 913 N.W.2d 256, 258–59, 261–66 (Iowa 2018), our supreme court confirmed that the public-duty doctrine applied to prohibit county liability to a driver who hit a concrete embankment located on the county’s right-of-way easement in a ditch owned by other landowners. Although the injury did not occur on county-owned land, there, our supreme court affirmed the distinctions McFarlin made between that case and Summy as “relevant precedent.” Johnson, 913 N.W.2d at 261. Johnson also cautioned about the financial ramifications of mandating a duty to the public at large as opposed to specific individuals. Id. at 263 (“The legislature’s concern about preserving school districts’ financial resources counsels against the court finding that the school had an affirmative duty to

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the student with regard to scoliosis testing for all students.” (cleaned up) (quoting Restatement (Third) § 38 cmt. c, illus. 2)). Additionally, Johnson addressed the nonfeasance versus misfeasance consideration related to the public-duty doctrine that was also found in the Restatement (Third). 913 N.W.2d at 266–67 (citing Restatement (Third) § 37 cmt. i). The public-duty doctrine would not apply when the county affirmatively acts and does so negligently, even though the doctrine does help balance numerous competing public priorities and recognizes financial demands. Id.

Cases that followed rejected the public-duty doctrine when the facts involved affirmative negligence or misfeasance by the governmental entity on governmental land that created the risk. See Est. of Kahn v. City of Clermont, 22 N.W.3d 252, 260 (Iowa 2025) (describing the differences between a governmental entity’s nonfeasance and misfeasance and concluding that with “misfeasance, the public-duty doctrine generally does not apply”) Est. of Farrell v. State, 974 N.W.2d 132, 135–38 (Iowa 2022) (finding public-duty doctrine did not apply because the State opened the exit ramp where the accident occurred before performing the necessary safety work) Fulps, 956 N.W.2d at 475–76 (finding, on review of a motion to dismiss, that the public- duty doctrine did not apply because the harm occurred not because of a third party but because of the city’s failure to repair the sidewalk) Breese, 945 N.W.2d at 21 (holding the city’s negligent installation of a sewer box, without appropriate safety measures or warnings, caused the harm and precluded the application of the public-duty doctrine).

We pause because perhaps we could apply Raas as a simple test that if the injured member of the general public is an entrant on the governmental entity’s land, then a special relationship exists, a duty of care is implicated, and the public-duty doctrine would not apply because that person is not a

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trespasser but legally entitled to be there. Raas, 729 N.W.2d at 450. But, we cannot ignore the public-duty doctrine precedent in McFarlin that identified other considerations we should consider on these unique facts. And such a “simple” test would open the door to unlimited scope, rather than one premised on a special duty to the individual.

Further, in applying the Restatement (Third) to the question here, the authors recognized the challenge presented to public entities when assigning responsibility for harms in the public-duty arena:

The “public duty” doctrine, which denies a tort-law duty to provide police, fire, and other protective services to members of the public generally, reflects this concern. Second, unlike private persons and entities, governmental entities exist, in significant part, to protect the public from risks that are created by others. Law enforcement, fire protection, building inspection, and social services are only a few of the many governmental operations that provide a significant protective function. The limitless potential liability that might be visited on government entities if affirmative duties were imposed on them for every undertaking has influenced courts in limiting the existence and scope of affirmative duties to which government entities are subject. Some courts insist on a “special relationship” between the plaintiff and a public entity that distinguishes the plaintiff from the public at large before imposing an affirmative duty. The “special relationship” invoked by these courts should be distinguished from the special relationships described in §§ 40 and 41.

Restatement (Third) § 37 cmt. i.

To offer additional insight to these comments, the Restatement Reporter explained that “tort law, especially in the affirmative-duty arena” for public entities, “may require adjustment.” Restatement (Third) § 37 reporter’s note cmt. i (citing cases discussing the reasons for imposing a public-duty doctrine to prevent excess court intervention into the governmental process). Further, the Reporter noted that “[s]ome courts

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limit the affirmative duties of public entities by requiring that a ‘special relationship’[5] exist between the plaintiff and the entity. This usage creates the potential for confusion with usage of the same term as the basis for affirmative duties of private entities. See §§ 40–41.” Id.

Our supreme court has not specifically addressed this discussion, but on a case-by-case basis has discussed and modified a duty of care based upon the facts presented. See McFarlin, 881 N.W.2d at 60–63 (citing cases from Iowa and other jurisdictions applying the public-duty doctrine to a duty regarding public safety measures on government-owned property). And since the Restatement (Third) was adopted, the court has emphasized the relationship of the public-duty doctrine to affirmative actions by a governmental entity and how the nonfeasance of the entity might be distinguished from the misfeasance. Kahn, 22 N.W.3d at 260 (“Nonfeasance is when a government actor had a duty to act, usually based on a statute, rule, or ordinance, yet failed to take action. Misfeasance is when the government affirmatively acts and does so negligently.” (cleaned up)). Here there are no acts by DCSD that represent misfeasance.

As for the question of whether DCSD owed a duty to Eddy because of a special relationship or whether the duty existed to the public at large, we see no distinction from the McFarlin considerations as the public in DCSD’s parking lot on the night of Eddy’s injury was not restricted and people

5 We note that in section 40 comment h, the Restatement (Third) indicates that the term “special relationship” carries no independent significance and that:

The special relationships established by [Section 40] are justified in part because the reasons for the no-duty rule in § 37 are obviated by the existence of the relationship. A relationship identifies a specific person to be protected and thus provides a more limited and justified incursion on autonomy, especially when the relationship is entered into voluntarily.

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could—and did—come and go. See 881 N.W.2d at 60–61. No one was charged to be in the parking lot. And other than congregating, the members of the public had no business involving the school because the school building was closed and there were no school-sanctioned activities occurring. Thus, from our standpoint, the safety duties advocated by the Gutierrezes were for the public and not specific to Eddy. And the Gutierrezes’ allegation that the lot should have been closed, monitored, or supervised rings of a general duty to protect, as was the case in Sankey v. Richenberger. 456 N.W.2d 206, 209 (Iowa 1990) (“We read nothing in the Mt. Pleasant city ordinances which would create a particularized duty running from the police chief to the council members that could be distinguished from the police chief’s general duty to keep the peace in Mt. Pleasant.”). As the court in Breese noted, the classic public-duty doctrine case occurs when the duty is imposed by a statute that requires the defendant to act affirmatively, and the defendant’s wrongdoing is a failure to take positive action for the protection of the plaintiff. We reiterated our belief that the limited resources of governmental entities—combined with the many demands on those entities—provide a sound justification for the public-duty doctrine in cases involving nonfeasance.

945 N.W.2d at 19–20 (cleaned up). Likewise, the allegations against DCSD involve an alleged failure to act, and so, given the lack of any misfeasance by DCSD and because the duty asserted by the Gutierrezes is most appropriately characterized as an “obligation to protect the public at large,” we find the public-duty doctrine does apply and therefore, the district court correctly dismissed the claims against DCSD. See id. at 18.

V. Conclusion.

In the evening hours with no school activity involved, DCSD did not owe a duty to Eddy as a student. And because any other duty owed to Eddy

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is to him as a general member of the public-at-large, and there was no misfeasance by DCSD in contributing to his injuries, the public-duty doctrine applies. For those reasons, the district court did not err in granting summary judgment under the public-duty doctrine. Thus, we affirm.

AFFIRMED.

Ahlers, Badding, and Langholz, JJ., and Vogel, S.J., concur Tabor, C.J., dissents.

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TABOR, Chief Judge, (dissenting).

I respectfully dissent. The DCSD owed Eddy a duty of care as both a student and as a visitor lawfully on school premises the night of his injuries. The undisputed facts reflect that DCSD allowed students and other members of the public to congregate in the high school parking lot when school was not in session and when school activities were not occurring. School officials allowed that activity despite having notice that alcohol consumption and dangerous driving occurred on the property after hours. On this record, the district court erred by not recognizing a special relationship between the DCSD, as possessor of the parking lot, and Eddy, as a congregant there. That special relationship identified him as “a specific person to be protected” from harm by others. See Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 777 (Iowa 2013) (quoting Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 cmt. h (A.L.I. 2012) (hereinafter Restatement (Third))).

And contrary to the majority’s analysis, the DCSD also owed Eddy a duty as a student on school grounds, even though his injuries occurred after school hours and were not linked to an official school-sponsored event. The district court cited Godar v. Edwards for the proposition that a school district’s duty is “limited by what risks are reasonably foreseeable.” 588 N.W.2d 701, 708 (Iowa 1999). But assessing the foreseeability of a risk is no longer part of our duty analysis. See Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 391 (Iowa 2010). Instead, section 40 of the Restatement (Third) recognizes that schools have a special relationship with their students that parallels other relationships giving rise to a duty of care. Restatement (Third) § 40(b)(5). For example, a school is “a land possessor who opens the premises to a significant public population.” Id. § 40 cmt. l. In

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that role as land possessor, the school had a duty to maintain its premises in a reasonably safe condition. See Concepcion v. Archdiocese of Mia., 693 So. 2d 1103, 1105 (Fla. Dist. Ct. App. 1997) (discussing Gutierrez v. Dade Cnty. Sch. Bd., 604 So. 2d 852 (Fla. Dist. Ct. App. 1992) (finding school district had a duty to protect student assaulted in high school parking lot after school hours)).

The majority is correct that schools are not “insurers of student safety” after school hours when they have left the school premises. See id. at 1104. But Eddy was on school grounds when he suffered his injuries. And while there was not a sporting event or other school-sponsored activity going on that night, the undisputed facts reveal that the DCSD turned a blind eye to students “hanging out” in the parking lot at night. In her deposition, Nancy McCarville, dean of students, summarized the school’s “philosophy” in leaving the parking lot open after hours:

[T]he students are here at school. It’s lit up. The police drive by and have conversations with them, you know, “Hey, how are you doing,” this and that. They’re monitored. If we closed the parking lot, it would not stop them from being teenagers. They would just go somewhere else that might be more hidden or darker.

McCarville acknowledged that students knew they would not be disciplined for being in the parking lot after hours. She also admitted being aware that students would “drive dangerously in the parking lot at night,” leaving “doughnuts” and “tire marks.” The DCSD had five surveillance cameras installed in its parking lot and, while school officials could monitor a live feed on a remote-access application, they did not do so after hours. In my view, the DCSD’s stated philosophy of tolerating—if not encouraging— students’ presence in the parking lot at night created a duty to ensure a reasonably safe environment. The DCSD chose to maintain control over

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these students’ behavior even when school was not in session and no school- sponsored activity was scheduled—believing the school parking lot was safer than less exposed venues. And the party in control “is best positioned to take precautions to identify risks and take measures to improve safety.” Morris v. Legends Fieldhouse Bar & Grill, LLC, 958 N.W.2d 817, 826 (Iowa 2021) (quoting McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 374 (Iowa 2012)).

The majority quotes an out-of-state case cautioning against “considering the specific facts of the parties’ relationship where a special relationship was absent.” Dinsmoor v. City of Phoenix, 492 P.3d 313, 319 (Ariz. 2021). But Dinsmoor clarified: “Identifying the risk within the scope of the special relationship does not touch on concepts of breach or causation, so there is no danger of conflating duty with those elements.” Id. at 320. The risk to Eddy within the special relationship between the school and its students came from the DCSD’s ill-conceived notion that it could provide a safe haven for rambunctious teenagers by opening the school parking lot after hours but not actually monitoring their behavior or enforcing any rules. In my view, the district court erred in finding that the DCSD was entitled to a “no-duty” summary judgment finding based on the undisputed facts.

Moving to public duty doctrine, I respectfully dissent from the majority’s determination that the DCSD did not have a special duty to protect Eddy from harm in the school parking lot above and beyond its duty to the public at large.6

6 The doctrine protects public bodies from liability when (1) the plaintiff’s injury was caused by a third party and (2) the plaintiff claims a public entity breached “a uniquely governmental duty, usually, but not always, imposed by statute, rule, or ordinance to

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To start, viewing the record in the light most favorable to the Gutierrez family, as we are required to do, I believe that they “stated a sufficient cause of action by establishing a special relationship” between Eddy and the DCSD. See Raas v. State, 729 N.W.2d 444, 450 (Iowa 2007) (rejecting public- duty doctrine because Raas alleged his status as an invitee in the state prison parking lot).

The majority flirts with the idea of applying Raas as “a simple test”

finding a “special relationship” whenever the injured party was legally entitled to be on the public land. But the majority rightly advises that we must ponder the more recent analysis in Estate of McFarlin v. State, 881 N.W.2d 51, 61 (Iowa 2016). In McFarlin, the supreme court declined to recognize a special relationship between the victim of a fatal boating accident on Storm Lake and the state department of natural resources. McFarlin, 881 N.W.2d at 63. The court found that the department’s safety-related duties at the state-owned lake were owed to the general public and not a particularized class of recreational boaters. Id.

McFarlin distinguished Summy v. City of Des Moines, 708 N.W.2d 333, 344 (Iowa 2006), where the supreme court found the public-duty doctrine did not apply to a lawsuit filed by an injured golfer who was a “business invitee” at a city golf course. McFarlin, 881 N.W.2d at 60−61. The supreme court contrasted boaters who “traverse the lake freely and come and go as they please, like motorists using public roads” with golfers who proceed “in small groups, hole-by-hole in sequence.” Id. The McFarlin court also found it significant that the city alone operated the golf course, while local

protect the plaintiff from the third party.” Est. of Kahn v. City of Clermont, 22 N.W.3d 252, 258 (Iowa 2025) (citation omitted).

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entities—not the State—operated the dredging equipment that allegedly caused the accident on Storm Lake. Id. at 61.

The majority sees “no distinction” between the DCSD parking lot and the public lake in McFarlin. I respectfully disagree. The supreme court’s rationale for applying the public-duty doctrine to the Storm Lake lawsuit recently came into sharper focus in Kahn:

In [McFarlin], we applied the public-duty doctrine to claims brought against the state by the estate of a child who was killed when a boat struck a submerged dredge pipe in a public lake. Although the state owned the lake in public trust, the dredge pipe was owned and operated by local entities, and those local entities were responsible for placing buoys on the lake to mark the pipe. We reasoned that liability for injuries associated with the dredging resided with those in control of the dredging operation, not the state. Any “duty of the State to enforce statutory obligations of the dredge operators,” we concluded, was owed to the public at large and did not give rise to a duty to protect boaters from the local entities’ work. We thus held that the public-duty doctrine barred the estate’s common law claims against the state.

22 N.W.3d at 259 (internal citations omitted).

In Kahn, the estates of a mother and daughter who drowned on the Turkey River sued the State and two municipalities for failure to properly warn inner tubers about a low-head dam. Id. at 256. The district court dismissed the claims under the public-duty doctrine the supreme court reversed. Id. at 257, 261. Kahn distinguished McFarlin and instead compared the government entities’ liabilities for the river drownings to the defendants in Breese v. City of Burlington, Fulps v. City of Urbandale, and Est. of Farrell v. State. See 945 N.W.2d 12, 21 (Iowa 2020) (finding public-duty doctrine did not shield city when it had erected the sewer box, paved the bike path, and connected them to each other “[t]hey were not instrumentalities built, owned, operated, or controlled by anyone else”) 956 N.W.2d 469, 476 (Iowa

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2021) (finding pleading was sufficient in alleging that uneven sidewalk was maintained by the defendant city) 974 N.W.2d 132, 139 (Iowa 2022) (finding doctrine did not apply when plaintiff alleged that government defendants negligently designed and prematurely opened the dangerous interchange used by the errant driver to enter Interstate 80 in the wrong direction). Significantly, in Farrell, it didn’t matter that the fault of a third-party driver was intertwined with the fault of the government defendants. 974 N.W.2d at 139.

Like the government defendants in Kahn, Breese, Fulps, and Farrell, the DCSD owned and controlled the parking lot and allegedly acted negligently in allowing students to gather there at night unsupervised—despite evidence of alcohol use and dangerous driving. In their petition, the Gutierrez family does not allege that the DCSD failed “to comply with a uniquely governmental duty imposed on a governmental body by a law or regulation” instead they allege that the DCSD engaged in an affirmative act to provide students with a safe place to gather “that was then undertaken negligently.” See Kahn, 22 N.W.3d at 261.

As for nonfeasance versus misfeasance, the majority maintains that the public-duty doctrine applies because the DCSD allegedly failed to close the parking lot or monitor the after-hours activity (nonfeasance) rather than acting affirmatively to create the danger to Eddy (misfeasance). But as the supreme court has recognized, the difference is not always black and white. Breese, 945 N.W.2d at 21 (“Some cases can be characterized as examples of either misfeasance or nonfeasance.”). Here, the DCSD carried out its “philosophy” of allowing, if not encouraging, students to spend their evenings in the school’s lighted parking lot so that they would not “go somewhere else that might be more hidden or darker.” But, as the Gutierrez

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family alleged, the DCSD did so without taking measures to ensure that the parking lot was reasonably safe from dangerous driving. A jury could find that these affirmative acts constituted negligence. In my view, the majority misapplies the public-duty doctrine to this case.

Finally, the DCSD is not entitled to immunity protection under Iowa Code chapter 670 (2021). Neither the state-of-the-art defense in section 670.4(1)(h) nor the discretionary-function exemption in section 670.4(1)(c) apply to the negligence pleaded by the Gutierrez family. Because Eddy’s family is entitled to a trial on their claims against the DCSD, I would reverse and remand for further proceedings.