Mollie Joan Ashton v. Nicholas Allan Brock, Todd Gohlman, Joel Congdon and John Nordyke

• Court: Court of Appeals of Iowa
• Decided: June 10, 2015
• Docket: 14-1257
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1257 Filed June 10, 2015

MOLLIE JOAN ASHTON, Plaintiff-Appellant,

vs.

NICHOLAS ALLAN BROCK, TODD GOHLMAN, JOEL CONGDON and JOHN NORDYKE, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Story County, Michael J. Moon,

Judge.

Plaintiff appeals from an adverse grant of summary judgment in favor of

the defendants. AFFIRMED.

Tod J. Beavers of Law Offices of Tod J. Beavers, P.C., Des Moines, for

appellant.

Jason C. Palmer and Catherine M. Lucas of Bradshaw, Fowler, Proctor

& Fairgrave, P.C., Des Moines, for appellees.

Considered by Tabor, P.J., and Bower and McDonald, JJ. 2

MCDONALD, J.

The plaintiff Mollie Ashton f/k/a Brock appeals the district court’s grant of

summary judgment adverse to her and in favor of three law enforcement officer

defendants. This appeal presents the question of whether law enforcement

officers can be liable for alleged negligence in investigating alleged criminal

activity and preventing harm to a victim in the absence of a special relationship

between the law enforcement officers and the alleged victim. The answer is long

settled in the negative, and we affirm the judgment of the district court.

We review the district court's order on summary judgment for correction of

errors at law. See Howard v. Schildberg Constr. Co., Inc., 528 N.W.2d 550, 552

(Iowa 1995); Farm & City Ins. Co. v. Anderson, 509 N.W.2d 487, 489 (Iowa

1993). We view the facts in a light most favorable to the party opposing the

summary judgment motion. See Gerst v. Marshall, 549 N.W.2d 810, 812 (Iowa

1996). We must decide whether a genuine issue of material fact exists and

whether the law was correctly applied. See Farm & City Ins. Co., 509 N.W.2d at

489.

We need not repeat Ashton’s allegations in full because they are

immaterial to the resolution of this matter. When viewed in the light most

favorable to the plaintiff, the summary judgment record showed the following. 1

1 The defendants contend the judgment of the district court could be affirmed on the ground that the plaintiff failed to timely file a resistance to the motion for summary judgment and failed to file a motion pursuant to Rule of Civil Procedure 1.981(6) to seek additional discovery in support of her resistance. We agree the plaintiff failed to timely file a properly supported resistance to the motion and failed to file a motion to seek additional discovery. See Iowa R. Civ. P. 1.981(6); see also Bitner v. Ottumwa Comm. School Dist., 549 N.W.2d 295, 299 (Iowa 1996). We need not decide this appeal on that 3

Ashton formerly was married to defendant Nicholas Brock. Defendants Todd

Gohlman, Joel Congdon, and John Nordyke were employed as law enforcement

officers by the Ames Police Department at all times material to this proceeding.

In May 2011, the plaintiff and Brock were cohabiting although divorced. The

Ames Police Department was called to the family’s residence on at least three

occasions in response to domestic disturbances. After the police department

responded to the domestic disturbance calls, Ashton contacted the Ames Police

Department in person and by telephone to lodge further complaints against Brock

and against the officers involved in the case. Officers Gohlman and Nordyke and

Detective Congdon are among the law enforcement officers who became

involved in the investigation and processing of Ashton’s complaints. Ultimately,

Detective Congdon closed his investigation after the case was referred to the

assistant county attorney and the assistant county attorney directed the case be

closed without charges filed. In her amended petition, Ashton contended that

Brock “physically assaulted, mentally abused,” and “stole property” from the

plaintiff during the month of May 2011 and then for some undetermined period of

time after. In her amended petition, plaintiff alleged Gohlman, Nordyke, and

Congdon were negligent in “their failure to properly and adequately protect the

Plaintiff from the wrongful actions and conduct of Defendant Brock.”

To establish negligence, the plaintiff was required to establish, among

other things, that the defendants owed her a duty. See Donahue v. Washington

Cnty., 641 N.W.2d 848, 850 (Iowa Ct. App. 2002). The question of whether a

ground, however, as we conclude the district court correctly decided the motion on the merits. 4

duty exists is a question of law for the court. See Thompson v. Kaczinski, 774

N.W.2d 829, 834 (Iowa 2009). Plaintiff does not contend Thompson changes our

analysis of the issue. Iowa law does not recognize a tort for negligent law

enforcement response and investigation in the absence of a special relationship

between the plaintiff and law enforcement. See Morris v. Leaf, 534 N.W.2d 388,

390 (Iowa 1995) (“Iowa courts have consistently held that law enforcement

personnel do not owe a particularized duty to protect individuals; rather, they owe

a general duty to the public.”); Mastbergen v. City of Sheldon, 515 N.W.2d 3, 5

(Iowa 1994) (“Consistent with the common-law principles recognized by those

sections, we have recognized two exceptions when law enforcement may be

liable for damages: (1) when the police create the situation that places the

citizen's life in jeopardy and (2) when the police take a citizen into custody and

control.”); Smith v. State, 324 N.W.2d 299, 302 (Iowa 1982) (holding “law

enforcement officers have no liability for mere negligence in the investigation of

crime”); Hawkeye Bank & Trust Co. v. Spencer, 487 N.W.2d 94, 96-97 (Iowa Ct.

App. 1992) (defining special relationship and holding police promises of extra or

special watches on citizen's property do not create exception to general rule of

nonliability for negligence in investigating criminal activity). Although the plaintiff

asserts there was a special relationship between her and the law enforcement

defendants, she did not produce evidence of any “special relationship” within the

meaning of our case law. See Mastbergen, 515 N.W.2d at 5; see also Hawkeye

Bank & Trust, 487 N.W.2d at 96. 5

The district court correctly determined that the issue presented was a

question of duty, that the plaintiff failed to establish the existence of a duty, and

that the officer defendants were entitled to judgment as a matter of law. The

judgment of the district court is affirmed without further opinion. See Iowa Ct. R.

21.26(a), (c), (d), and (e).

AFFIRMED.