Miller v. Boone County Hospital

394 N.W.2d 776, 55 U.S.L.W. 2250, 1986 Iowa Sup. LEXIS 1321

• Court: Supreme Court of Iowa
• Decided: October 15, 1986
• Docket: 85-1275
• Status: Published

Opinions

LAVORATO, Justice.

Iowa Code chapter 613A (1983) governs tort claims against local governments. Section 613A.5 requires a person claiming damages to commence an action within six months after injury or cause a written notice to be presented to the local government within sixty days after injury.¹ Thirteen years ago we held that section 613A.5 did not deny equal protection of the law by classifying victims of governmental torts differently from victims of private torts. Lunday v. Vogelmann, 213 N.W.2d 904, 908 (Iowa 1973). Victims of governmental torts are subject to the special notice requirement whereas victims of private torts are not. In upholding the constitutionality of the statute, we said that

[t]he fundamental motivation attributed to legislatures which have enacted such notice requirements is that where a governmental subdivision is involved the public has an interest it does not have as to claims against private persons in seeing prompt and thorough investigation of claims is made. This protects the public treasury from stale claims. It permits prompt settlement of meritorious claims and facilitates planning of municipal budgets. The notice requirement also ensures that notices reach the public officers with responsibility to deal with them and in many instances should enable such officers to remedy defects in far-flung municipal property before other persons are injured. We are unable and unwilling to say § 613A.5 is patently arbitrary and bears no rational relationship to a legitimate governmental interest.

213 N.W.2d at 907-08 (citations omitted). Today, we revisit the issue, and we reexamine the reasons for our holding.²

Plaintiff Crystal Miller, individually and on behalf of her injured son, argues the notice requirement violates equal protection because it creates an impermissible class: plaintiffs injured by local governments vis-a-vis plaintiffs injured by private tort-feasors.

Aaron was eighteen-months-old when his mother noticed he had a high fever. She sought advice from personnel employed by the defendant, Boone County Hospital. Later that day, she apparently received and followed contrary medical advice from other persons. Nearly two years later she filed a petition against the defendant. She alleged its personnel negligently failed to recommend immediate treatment for her son, causing his severe injuries and damages to both plaintiffs. Because the plaintiffs did not comply with the notice provision of section 613A.5, however, the district court granted the defendant’s motion for summary judgment, Iowa R.Civ.P. 237. The plaintiffs have now appealed, and we reverse and remand.

I. Governmental immunity.

The origins and underlying purposes of notice requirements are rooted in governmental immunity, and may be viewed as a partial substitute for it. W. Prosser & W. Keeton, The Law of Torts § 131, at 1043, 1045-46 (5th ed. 1984); Note, 60 Cornell L.Rev. 417, 419, 422 (1975). This doctrine has been severely criticized by modern courts and commentators:

Since [governmental] immunity eliminates suits against the state for torts, which, if committed by private parties, would probably be actionable, it has been characterized as both unjust and incompatible with the American governmental-legal system. This characterization is bolstered by three important facts. First, the United States is not governed by a monarch (who the English have said can do no wrong). Second, the American sovereign power belongs not to the government, but to the people. Third, and most important from a legal standpoint, some jurisdictions have openly acknowledged that private citizens have a fundamental right to seek redress in tort from whomever inflicts a wrong, including the state.

Note, 60 Cornell L.Rev., supra, at 421 (footnotes omitted); see Muskopf v. Corning Hospital District, 55 Cal.2d 211, 213, 216, 359 P.2d 457, 458, 460, 11 Cal.Rptr. 89, 90, 92 (1961); Boyer v. Iowa High School Athletic Association, 256 Iowa 337, 349, 127 N.W.2d 606, 613 (1964) (Moore, J., dissenting); Note, 56 Iowa L.Rev. 930, 930, 933-35 (1971); Note, 16 Drake L.Rev. 35, 38 (1966); Comment, 50 Iowa L.Rev. 226, 227 n. 5 (1964).

Our court embraced immunity for the State, on common law grounds, without question. See Metz v. Soule, Kretsinger & Co., 40 Iowa 236, 239-40 (1875). Local governments were held liable, however, for the negligence of their employees performing “proprietary” functions. See, e.g., Iseminger v. Black Hawk County, 175 N.W.2d 374, 380 (Iowa 1970); Wittmer v. Letts, 248 Iowa 648, 652, 80 N.W.2d 561, 563 (1957); Florey v. City of Burlington, 247 Iowa 316, 321, 73 N.W.2d 770, 772 (1955); Petz, Survey of Iowa Law—Some Tort-Related, Statutes, 23 Drake L.Rev. 603, 615'(1974); Note, 11 Drake L.Rev. 79, 89 (1962); Note, 9 Drake L.Rev. 41, 42-43 (1959). While eventually recognizing the shortcomings of governmental immunity, we left its abrogation to the legislature, despite its judicial origin. See, e.g., Boyer, 256 Iowa at 348, 127 N.W.2d at 612-13.

In 1965, the legislature abolished immunity for the State. See Iowa Code ch. 25A. Two years later it enacted chapter 613A, after we held in Graham v. Worthington, 259 Iowa 845, 854-55, 146 N.W.2d 626, 633 (1966) that the State’s political subdivisions were not covered by the 1965 act.

The court in Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970) incorrectly characterized Section 613A.5 as a statute of creation rather than a statute of limitations. With the greater power to create a right of action, it was thought, comes the lesser power to condition it:

Where, as here, the legislature has created a new right of action, it made a legislative judgment that the cause should be brought within a specified time. This difference doubtlessly arises from the fact the statute ... is in derogation of sovereign immunity and that the legislature might, and did, properly restrict and limit the application of the statute.

180 N.W.2d at 433; accord Harryman, 257 N.W.2d at 636; Dan Dugan Transport Co. v. Worth County, 243 N.W.2d 655, 657 (Iowa 1976); Lunday, 213 N.W.2d at 907.

Whether or not a right of action was created in chapter 613A is irrelevant to the constitutionality of its notice requirement. See Turner v. Staggs, 89 Nev. 230, 239, 510 P.2d 879, 885 (1973) (Zenoff, J., concurring); Note, 60 Cornell L.Rev., supra, at 440. Cf. Turner v. Turner, 304 N.W.2d 786, 787 (Iowa 1981) (“to the extent [parental] immunity is abrogated it does not create a new liability_ [but] merely removes a judicially imposed barrier to recovery”). We should not conclusively presume, as Lunday implied by quoting Sprung, 213 N.W.2d at 907, the provisions of chapter 613A are constitutional merely because they resulted from legislative enactment. With one justice changing his vote, the court in Boyer would have abrogated immunity of local governments three years earlier than did the legislature. Thus, “there is no sanctity” to the notice requirement. O’Neil v. City of Parkersburg, 237 S.E.2d 504, 507 (W.Va.1977).

To defer to the legislature because it has provided liability for the negligence of the State’s political subdivisions is to say every condition imposed, no matter how harsh, may never be questioned. The analysis in Sprung and its progeny begs the question of constitutionality.

II. Equal protection.

The plaintiffs argue that in creating the class,³ section 613A.5 violates the equal protection clauses of both the federal (14th amendment) and Iowa (Article I, section 6) constitutions. We have interpreted both constitutional provisions similarly. See Beeler v. Van Cannon, 376 N.W.2d 628, 629 (Iowa 1985).

As we did in Lunday, we apply the rational basis test. 213 N.W.2d at 907. In applying the standard

we are to determine if the classification or distinction drawn by the statute is reasonably related to some legitimate state interest. The party attacking the classification has the heavy burden of proving the action unconstitutional, and must negate every reasonable basis upon which the action may be sustained. There is, of course, a strong presumption in favor of the constitutionality of any legislative enactment. It is presumed the legislature intended the statute to comply with both the state and federal constitutions.

Beeler, 376 N.W.2d at 630 (citations omitted). In examining the claimed interests of a statute, our focus is on whether they are realistically conceivable. Moreover, when examining the provisions of section 613A.5, we should consider what we said in State v. Bartels, 191 Iowa 1060, 1073, 181 N.W. 508, 515 (1921): “For the purpose of ascertaining whether or not the classification is arbitrary and unreasonable, we must take into consideration matters of common knowledge and common report and the history of the times.”

Almost one hundred years ago the legislature enacted its first notice requirement for claims against a local government. 1888 Iowa Laws § 25.1 (22nd G.A.) (for actions based on defective streets or sidewalks). Presumably this statute was the model for section 613A.5. According to Lunday, 213 N.W.2d at 907-08, section 613A.5 was enacted to protect local governments’ treasuries from stale claims, and facilitate prompt settling of valid claims, planning of budgets, and repair of defective conditions. Accord Harrop v. Keller, 253 N.W.2d 588, 592-93 (Iowa 1977); Shearer v. Perry Community School District, 236 N.W.2d 688, 692 (Iowa 1975); Norland v. Mason City, 199 N.W.2d 316, 318 (Iowa 1972).

Section 613A.5 requires a person claiming damages to commence an action within six months after injury or cause a written notice to be presented to the local government within sixty days after injury. The plaintiffs argue this requirement is unconstitutional because it creates an impermissible class: plaintiffs injured by local governments vis-a-vis plaintiffs injured by private tort-feasors.⁴

In light of present day conditions, does the classification in issue bear any rational relationship to the interests underlying section 613A.5? Regarding the interests our earlier cases found to underlie section 613A.5, it has been said they “have more basis in judicial conjecture than [in] actuality.” Case Note, 23 Drake L.Rev. 696, 703 (1974). Moreover, the statute does not further these interests. We have, in Lunday and subsequent cases, “ignored what common knowledge tells us.” Case Note, 23 Drake L.Rev., supra, at 705.

With regard to the four interests mentioned in Lunday, we make the following observations.

(1). Stale claims. While local governments may have broad exposure, that of certain private persons or entities may be even greater. See Hunter v. North Mason High School, 85 Wash.2d 810, 816, 539 P.2d 845, 849 (1975). The general statute of limitations would protect local governments from stale claims in the same manner as it protects the private sector. See Case Note, 23 Drake L.Rev., supra, at 705. The odds may even be in favor of local governments, who have police departments, attorneys and other personnel at their disposal to investigate the causes and effects of accidents. See 17 E. McQuillin, The Law of Municipal Corporations § 48.02, at 48 (3d ed. 1982); see also Hunter, 85 Wash.2d at 816, 539 P.2d at 849. And, because plaintiffs bear the burden to prove negligence, any difficulty in proof in cases arising after sixty days would beset them as well as defendants. See 4 F. Harper, F. James & O. Gray, The Law of Torts § 24.7, at 484 n. 9 (2d ed. 1986); see also Gallegos v. Midvale City, 27 Utah 2d 27, 34, 492 P.2d 1335, 1340 (1972) (Ellett, J., dissenting).

(2). Planning of budgets. Local governments “rarely budget for claims but carry liability insurance as the statutes per-mit_” Case Note, 23 Drake L.Rev., supra, at 705; accord Lunday, 213 N.W.2d at 910 (Reynoldson, J., dissenting); 17 McQuillin, supra, § 48.02, at 48; Gibbons, Liability Insurance and the Tort Immunity of State and Local Government, 1959 Duke L.J. 588, 605; Comment, 6 Pac.L.J. 30, 55 (1975). Insurance is usually purchased because local governments, comprising small populations, are unable to use actuarial methods to forecast liabilities and to self-insure. Hunter, 539 P.2d at 849. The public policy of the Victorian age, which frowned on the idea of insurance, no longer exists. See Prosser & Keeton, supra, § 82, at 585-86. The legislature clearly contemplated local governments would purchase liability insurance to protect themselves. See Iowa Code § 613A.7.

(3). Settling of valid claims. The extent of a person’s injuries is often unknown for months, and settlement is unlikely to occur under such circumstances. See Note, 37 Mont.L.Rev. 206, 214 (1976). “Medicine is not a field of absolutes,” and “has not reached the stage where a physician may always confidently pinpoint the specific ... injury of a patient,” Estate of Smith v. Lerner, 387 N.W.2d 576, 581-82 (Iowa 1986), or make an accurate prognosis, see generally Oliver v. Sioux City Community School District, 389 N.W.2d 665, 669 (Iowa 1986).

(4). Repair of defective conditions. It is unreasonable to suppose that the government’s ability to discover and repair defective conditions is tied to a notice that a lawsuit will be filed. A defective condition should concern the government without regard to whether a lawsuit against it is contemplated. Local governments regularly react to that concern, but not because of a sixty-day notice under the statute. Experience teaches otherwise. In the routine case under the statute, the government’s insurer has promptly completed a thorough investigation whereas the injured citizen does not consult an attorney until after sixty days have passed. To apply section 613A.5 in such a case would be grossly unfair and would not lead, in any way, to a more speedy repair of the defect. Moreover, if repair of defective conditions were a legitimate interest, the legislature would have required notice of them whenever a person is injured, regardless of the tort-fea-sor or any intent to file a claim. Cf Iowa Code § 321.266 (requiring reporting of car accidents, involving injury or death, by driver).

In view of these observations, we hold that these interests no longer furnish any rational basis justifying the classification resulting from section 613A.5. Failure to commence an action within six months unless a notice is given within 60 days arbitrarily bars victims of governmental torts while victims of private torts suffer no such bar. We conclude such arbitrary treatment violates the equal protection guarantees of our federal and state constitutions. In reaching this conclusion, we have not lost sight of the fact that statutes carry a strong presumption of constitutionality. On the other hand, rather than furthering a legitimate governmental interest, the statute has proved to be a trap for the unwary. See Lunday, 213 N.W.2d at 911-12 (Reynoldson, J., dissenting).

We are also mindful that we are rejecting reasoning that has supported the constitutionality of section 613A.5 for thirteen years. Faced with a similar situation and a similar statute, one court appropriately noted that the shift in reasoning

is an example of the continual reexamination of rationales and principles that is necessary in constitutional decisionmak-ing. “The present has a right to govern itself, so far as it can ... Historical continuity with the past is not a duty, only a necessity.” O. Holmes, Collected Legal Papers 139 (1920). Judges operating in the present, searching for constitutional guidance, cannot find in that document itself many specific rules for the application of its principles. The constitution fails to speak with specificity on most of the subjects on which we must turn to it. This, in itself, is a source of its strength, longevity and vitality.

Hunter, 539 P.2d at 851 (rejecting dictum in prior decision that a statute similar to section 613A.5 did not violate equal protection). We, too, believe the present has a right to govern itself. In our quest to seek the ill-defined parameters of the equal protection clause, we have reexamined the traditional interests put forth as justification for section 613A.5, and have found them totally lacking in substance in today’s circumstances. We therefore join those jurisdictions that have likewise concluded there is no rational basis for legislation like section 613A.5. See Reich v. State Highway Department, 386 Mich. 617, 623-24, 194 N.W.2d 700, 702 (1972); Turner v. Staggs, 89 Nev. 230, 235, 510 P.2d 879, 882 (1973), cert. denied, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Hunter, 85 Wash.2d at 818-19, 539 P.2d at 850; O’Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504, 508 (1977).

To the extent that Argenta v. City of Newton, 382 N.W.2d 457 (Iowa 1986); Franks v. Kohl, 286 N.W.2d 663 (Iowa 1979); Harryman v. Hayles, 257 N.W.2d 631 (Iowa 1977); Shearer v. Perry Community School District, 236 N.W.2d 688 (Iowa 1975) and Lunday v. Vogelmann, 213 N.W.2d 904 (Iowa 1973) are inconsistent with this opinion, they are hereby overruled.

Finally, because section 613A.5 is unconstitutional, we hold that Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter 613A.

For the reasons stated, we conclude the' district court erred in sustaining defendant’s motion for summary judgment, and thus remand this case for further proceedings on plaintiffs’ petition.

REVERSED AND REMANDED.

All Justices concur except WOLLE, Mc-GIVERIN, SCHULTZ and CARTER, JJ., who dissent.

1 . Section 613A.5 provides:

Every person who claims damages from any municipality or any officer, employee or agent of a municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 or section 613A.8 or under common law shall commence an action therefor within six months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state time or place or circumstances or the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information within fifteen days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by his injury from giving such notice.

2 . Because of our reasoning under equal protection, we need not address the plaintiffs’ argument that section 613A.5 also violates due process. See Harryman v. Hayles, 257 N.W.2d 631, 635 (Iowa 1977).

3 . Plaintiffs injured by local governments vis-a-vis plaintiffs injured by private defendants.

4 . Iowa Code § 614.1(2) allows adults two years to file lawsuits against private tort-feasors. Iowa Code § 614.8 allows minors up to one year after attaining majority to file such suits.