IN THE SUPREME COURT OF IOWA
No. 22–0917
Submitted January 23, 2024—Filed June 14, 2024
RON MYERS,
Appellee,
vs.
CITY OF CEDAR FALLS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, Joel
Dalrymple, Judge.
A city seeks further review of the court of appeals decision reversing the
district court’s summary judgment dismissing tort claims arising from a diving
board accident under Iowa Code section 670.4(1)(l). DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED. Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Mansfield, McDermott, and May, JJ., joined. McDonald, J., filed a
special concurrence. Oxley, J., filed a special concurrence.
Thomas J. Duff (argued) and Jim T. Duff of Duff Law Firm, P.L.C., West
Des Moines, for appellant.
Samuel C. Anderson (argued) of Swisher & Cohrt, P.L.C., Waterloo, for
appellee. 2
WATERMAN, Justice. In this appeal, we revisit the “criminal offense” exception to immunity for
operators of municipal swimming pools under Iowa Code section 670.4(1)(l)
(2019). The plaintiff injured his leg when he slipped on a diving board at a city
pool. He sued the City of Cedar Falls, alleging that the diving board lacked a slip-
resistant surface required by state regulations, which constitutes a criminal
offense under Sanon v. City of Pella, 865 N.W.2d 506, 514–15 (Iowa 2015),
defeating the City’s statutory immunity. The City moved for summary judgment
under section 670.4(1)(l), which the district court granted, concluding that the
plaintiff failed to establish a “knowing” violation of the regulations. The plaintiff
appealed. We transferred the case to the court of appeals, which reversed based
on its determination that fact questions as to the condition of the board
precluded summary judgment. We granted the City’s application for further
review.
On our review, we accept the City’s invitation to overrule Sanon because it
was egregiously wrong when decided, as explained in its three-justice partial
dissent, see id. at 518–28 (Waterman, J., concurring in part and dissenting in
part, joined by Cady, C.J., and Mansfield, J.), and it continues to cause problems to this day. Moreover, recent legislative enactments combining state agencies
further enhance the problems resulting from Sanon’s erroneous holding that
violations of agency regulations promulgated under one statute are criminal
offenses under another statute, thereby undermining certain immunities
enacted by the legislature. Our holding today restores the scope of the statutory
immunity and honors the legislature’s exclusive role in defining criminal
offenses. We therefore vacate the court of appeals decision and affirm the district
court’s summary judgment. 3
I. Background Facts and Proceedings.
Forty-nine-year-old Ron Myers and his family traveled to The Falls Aquatic
Center in Cedar Falls on July 19, 2019. This was a regular summer activity for
the Myers family, as they typically visited swimming pools four or five times a
week. Myers jumped off the one-meter diving board at The Falls twice that day
without incident. On his third jump, Myers attempted to “get some distance” to
perform a “can opener” jump and “make a big splash.” Starting from the back of
the diving board, Myers jogged to the front end and planted his feet, intending
to launch himself into the air. His jump failed. His left foot slipped off while his
right foot remained on the board and his knee bent backwards, rupturing his
quadriceps tendon. Myers fell into the water. He exited the pool unassisted and
sat on a bench where lifeguards offered assistance. The next day, Myers
underwent surgery to repair his tendon.
The Falls, owned and operated by the City, first installed this sixteen-foot-
long Duraflex diving board in 2013, before the summer swim season. The diving
board, when purchased and installed, was “coated with a slip-resistant surface.”
Over the diving board’s seven seasons of use, it had never been resurfaced. No
complaints had been reported to management about the slipperiness of the diving board before Myers’s accident.
The Falls’s recreation supervisor, Chris Schoentag, was responsible for
maintaining The Falls’s facilities. He removed the diving boards at the end of
each season. Staff cleaned the diving boards before reinstallation, using water
and a nylon-bristled brush. After inspecting each diving board for any cracks,
deformities, or grit, Schoentag reinstalled the board the following season. He
used his “best judgment” during his inspections, as he was not aware of a
standard method for determining adequate board-surface friction. Schoentag 4
testified that the diving board had a safe, slip-resistant surface at the time of
Myers’s accident.
The Cedar Falls recreation and community programs manager, Bruce
Verink, oversaw Schoentag’s removal and reinstallation of the diving boards. He
inspected the boards along with Schoentag. Using his own experience, Verink
examined the surface of each diving board to determine whether it had “enough
grit to hold the feet and keep them from sliding on the board.” He opined in his
deposition testimony that the board used by Myers had a slip-resistant surface.
The Black Hawk Health Department (BHHD), an inspection agency for the
Iowa Department of Public Health (IDPH),1 as defined in Iowa Code
section 135I.1(2) and Iowa Administrative Code rule 641—15.3(1), conducted an
annual inspection of the entire facility. One month before Myers’s accident, the
BHHD inspected The Falls and provided its inspection report to the City. The
report found no deficiencies with any of the diving boards—including the one
that Myers later used. In fact, The Falls has never been cited for a deficiency in
its diving boards nor cited for a violation of a safety or regulatory rule relating to
its diving boards.
In October 2020, Myers filed this civil action against the City to recover damages for his injuries. Myers alleged that the City was negligent in failing to
provide a slip-resistant surface on the diving board, failing to maintain the diving
board in a proper condition, and failing to correct or remove the dangerous
conditions on the diving board. These failures, he claimed, violated Iowa
1As discussed later in this opinion, the IDPH and several other departments were realigned into the Iowa Department of Health and Human Services (HHS) on July 1, 2023. We will refer to the department as the IDPH in this opinion, as it was known at the time of Myers’s accident. 5
Administrative Code rules 641—15.4(4)(c)(6) and 641—15.5(13)(a)(5),
constituting a crime of a simple misdemeanor under Iowa Code section 135.38.
The parties undertook discovery, including depositions. Myers served the
City with an expert report from Tom Griffiths, a water safety specialist with over
forty years of experience. Griffiths identified several actions and inactions by the
City that he claimed constituted negligence, including its “[u]se of an
inappropriate and unsafe competitive Duraflex diving board in a recreational
swimming pool with untrained users,” failure to conduct regular maintenance
and cleaning of the diving board’s surface, and failure to replace or resurface the
diving board. Based on photographs of the diving board, Griffiths opined that
“the take-off area of the incident diving board was smooth rather than rough and
non-slip as it should have been.” He concluded that the “staff at The Falls . . .
clearly could have and should have known this.”
The City moved for summary judgment on two grounds: (1) the diving
board did have a slip-resistant surface, and (2) the City is immune from liability
under Iowa Code section 670.4(1)(l) because “there is no evidence that there was
any act or omission by an officer or an employee of the municipality which
constitutes a criminal offense” that would defeat its statutory immunity. Myers resisted, arguing that Griffiths’s report generated a genuine
question of material fact whether the City violated the regulations requiring
diving boards to “have a slip-resistant surface.” Iowa Admin. Code r. 641—
15.4(4)(c)(6); see also id. r. 641—15.5(13)(a)(5) (“Diving boards and platforms
shall have slip-resistant surfaces.”). Relying on Sanon, Myers argued that by
violating those regulations, the City waived its immunity under
section 670.4(1)(l) because the violations constituted a criminal offense under
section 135.38. 6
The district court granted summary judgment to the City based on
section 670.4(1)(l), concluding that even if a violation of these regulations was a
criminal offense, Myers could not establish that an employee of the City
knowingly violated the regulations. It was undisputed that the diving board was
slip-resistant when installed, and the court noted that the regulations lack
criteria “to determine any measurable level of slip resistance necessary to remain
compliant.” The court also noted the IDPH and the BHHC never gave notice to
the City that its diving board lacked an adequate slip-resistant surface. The
district court concluded: “Absent a showing that an officer or employee of the
city knowingly violated a regulation as to constitute a crime, the city’s claim of
immunity must prevail.”
Myers appealed, arguing fact questions precluded summary judgment as
to the board’s condition and the City’s constructive notice of rule violations that
would defeat its immunity under Sanon. The City argued that the district court
correctly determined there was no evidence its employees knowingly violated the
regulations, leaving the City entitled to immunity as a matter of law. The City
argued in the alternative that Sanon should be overruled. We transferred the
case to the court of appeals. The court of appeals viewed compliance with the regulations as a binary inquiry: “[e]ither the board had a slip-resistant surface
or it didn’t.” The court of appeals concluded that if the diving board lacked a slip-
resistant surface, then the City violated the regulation and lost its immunity.
Because of the conflicting evidence about the diving board’s surface, the
appellate panel determined that there was a disputed fact “that need[ed] to be
resolved through the trial process.” The court of appeals reversed the summary
judgment and remanded the case for trial.
We granted the City’s application for further review. 7
II. Standard of Review.
“We review summary judgment rulings for correction of errors at law.”
Feeback v. Swift Pork Co., 988 N.W.2d 340, 346 (Iowa 2023) (quoting Slaughter v.
Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 800 (Iowa 2019)).
“Summary judgment is proper when the movant establishes there is no genuine
issue of material fact and it is entitled to judgment as a matter of law.” Id.
(quoting Slaughter, 925 N.W.2d at 800). “We view the evidence in the light most
favorable to the nonmoving party, who is entitled to every legitimate inference
that we may draw from the record.” Nelson v. Lindaman, 867 N.W.2d 1, 6–7 (Iowa
2015).
III. Analysis.
The City argued, and the district court agreed, that the statutory immunity
applied because there was no evidence that any City pool employee knowingly
violated the regulations. The court of appeals determined that fact questions as
to the diving board’s condition precluded summary judgment. Neither court
could overrule Sanon. Both courts were bound to apply it and reached conflicting
conclusions, illustrating the problems resulting from Sanon’s flawed analysis
that a mere regulatory violation constitutes a criminal offense defeating a legislatively enacted immunity. We bypass the problematic fact-bound
determination of whether a knowing regulatory violation occurred here,2 and we
2As the court of appeals observed, there was conflicting evidence on the slipperiness of
the diving board. Questions of the actual or constructive knowledge of the City’s pool employees are poorly suited for summary adjudication. See, e.g., Wieseler v. Sisters of Mercy Health Corp., 540 N.W.2d 445, 451–52 (Iowa 1995) (noting that “we have commonly held that fact questions existed for a jury” in premises liability cases involving falls attributed to slippery conditions, and holding that “it would be reasonable for a jury to conclude that the hospital should have realized the hidden danger presented to persons venturing into the lot where slippery conditions could be present”). We are not persuaded by our specially concurring colleague’s conclusion that the regulations mandating a slip-resistant surface on diving boards are void for vagueness without specific criteria for determining compliance. People are generally familiar with ubiquitous 8
instead overrule Sanon as egregiously wrong when decided. “The course we must
follow is not to ignore our mistakes, but to correct them.” State v. Kilby, 961
N.W.2d 374, 378 (Iowa 2021) (quoting State v. Williams, 895 N.W.2d 856, 867
(Iowa 2017)).
We begin with the controlling statute—the Iowa Municipal Tort Claims Act
(IMTCA). “Suits against the government may be maintained only to the extent
immunity has been expressly waived by the legislature.” Baker v. City of
Ottumwa, 560 N.W.2d 578, 583 (Iowa 1997). The IMTCA, in 2019, included
seventeen separate immunity provisions. See generally Iowa Code § 670.4(1)(a)–
(q). Relevant here, local governments enjoy immunity from tort liability for
accidents at swimming pools that are subject to safety inspections under
chapter 135I:
1. The liability imposed by section 670.2 shall have no application to any claim enumerated in this section. As to any such claim, a municipality shall be liable only to the extent liability may be imposed by the express statute dealing with such claims and, in the absence of such express statute, the municipality shall be immune from liability.
....
l. A claim relating to a swimming pool or spa as defined in section 135I.1 which has been inspected by a municipality or the state in accordance with chapter 135I, or a swimming pool or spa inspection program which has been certified by the state in accordance with that chapter, whether or not owned or operated by a municipality, unless the claim is based upon an act or omission of an officer or employee of the municipality and the act or omission constitutes actual malice or a criminal offense.
sandpaper-like slip-resistant surfaces on bathtubs, stairs, and diving boards. The City employees and Myers’s expert can tell whether a bare foot readily slips on a wet diving board that has lost some of its textured, grainy surface. The approach of that special concurrence risks undermining enforcement of the regulations and risks calling into question whether a variety of criminal laws are void for vagueness. See generally State v. Showens, 845 N.W.2d 436, 446–48 (Iowa 2014) (discussing examples of laws challenged for vagueness). 9
Id. § 670.4(1)(l) (emphasis added).3 This statutory scheme promotes pool safety
through regular inspections by inspectors empowered to close pools for
noncompliance with regulations. See id. § 135I.6. It is undisputed that the City’s
pool is subject to annual certified safety inspections under chapter 135I, so
section 670.4(1)(l) applies. The fighting issue today, and in Sanon, is the scope
of its exception for a criminal offense.4
The legislature enacted section 670.4(1)(l) “to foster community
recreational activities and water safety training.”5 Baker, 560 N.W.2d at 582; see
also Sanon, 865 N.W.2d at 522 (noting that the purpose of the immunity
provision “is to reduce the litigation risk inherent in aquatic recreation and
thereby encourage cities, counties, and schools to open and operate swimming
pools”). “Summary judgment is an important procedure in statutory immunity
cases because a key purpose of the immunity is to avoid costly litigation, and
that legislative goal is thwarted when claims subject to immunity proceed to
trial.” Nelson, 867 N.W.2d at 7. Sanon undermined that purpose by erroneously
expanding the exception for a “criminal offense” to include regulatory violations
of chapter 135I.
It is well settled that the term “criminal offense” means “conduct which is prohibited by statute and is punishable by fine or imprisonment.” In re Prop.
Seized from Kaster, 454 N.W.2d 876, 878 (Iowa 1990) (en banc). Unelected
3This immunity provision was numbered section 670.4(12) at the time of the accident in
Sanon and was subsequently renumbered as section 670.4(1)(l). See 2013 Iowa Acts ch. 30, § 196. 4Myers does not allege any City employee acted with actual malice.
5The dearth of public swimming pools, exacerbated by pool closures due to high operating
costs, has contributed to a crisis in drowning deaths, especially among children, as fewer learn to swim or swim in unprotected rivers and lakes when safer public pools are unavailable. See Mary C. Curtis, America’s Deteriorating Public Pools Are a Public Health Crisis, Slate (Aug. 5, 2023, 10:00 AM), https://slate.com/human-interest/2023/08/public-pools-closed-swimming- drowning-public-health-crisis-climate-change.html [https://perma.cc/4XWD-YQBP]. 10
bureaucrats ordinarily do not get to enact criminal laws. See State v. Watts, 186
N.W.2d 611, 614 (Iowa 1971) (“Only the legislature has the power to create and
define crime . . . .”); see generally King v. Burwell, 576 U.S. 473, 498 (2015) (“In
a democracy, the power to make the law rests with those chosen by the people.”).
The “legislature may render the violation of an agency’s rules a criminal offense”
only when expressly provided by the statute authorizing the agency’s rules.
Watts, 186 N.W.2d at 614. The legislature did not make violating swimming pool
regulations promulgated under chapter 135I a criminal offense, as the Sanon
partial dissent recognized. See 865 N.W.2d at 521.
Myers relies on Iowa Code section 135.38—the same provision relied on in
Sanon—to argue that the City’s pool employees committed a criminal offense.
See id. at 511–12 (majority opinion). Section 135.38 provides: “Any person who
knowingly violates any provision of this chapter, or of the rules of the department,
or any lawful order, written or oral, of the department or of its officers, or
authorized agents, shall be guilty of a simple misdemeanor.” Iowa Code § 135.38
(emphasis added). Relying on Sanon, Myers argues that the City’s alleged
violation of the two regulations governing slip-resistant surfaces—Iowa
Administrative Code rules 641—15.4(4)(c)(6) and 641—15.5(13)(a)(5)—erases the City’s immunity, as each violation of the regulations constitutes a simple
misdemeanor under section 135.38. See Sanon, 865 N.W.2d at 508, 512–15
(concluding that the violation of specific pool regulations on lighting and water
clarity promulgated by the IDPH constituted criminal offenses removing the city’s
immunity). But both Myers and the Sanon majority are incorrect.
Sanon rests on a false premise—that section 135.38 applies to and
criminalizes violations of pool regulations promulgated under chapter 135I,
defeating the statutory immunity simultaneously enacted by the legislature in section 670.4(1)(l). See id. at 514–15. The Sanon majority went awry when it 11
concluded that the IDPH’s swimming pool regulations were promulgated under
chapter 135. See id. at 514. To the contrary, the pool regulations were
promulgated under a separate chapter, 135I, which governs the IDPH’s
regulation of swimming pools. See id. at 521 (Waterman, J., concurring in part
and dissenting in part). In the same bill enacting the immunity provision in Iowa
Code section 670.4(1)(l), the legislature enacted chapter 135I, entitled,
“Swimming Pools and Spas.” See 1989 Iowa Acts ch. 291, §§ 1–6 (codified at Iowa
Code ch. 135I (Supp. 1989)); id. § 8 (originally codified at Iowa Code 613A.4(12)
(Supp. 1989), now codified at Iowa Code § 670.4(1)(l) (2019)). Chapter 135I
authorizes the IDPH to promulgate rules regulating swimming pools. See Iowa
Code § 135I.4(5) (“The department is responsible for . . . regulating the operation
of swimming pools . . . [and] [t]he department may . . . [a]dopt rules in
accordance with chapter 17A for the implementation and enforcement of this
chapter . . . .” (emphasis added)). Chapter 135I includes a penalty provision: “A
person who violates a provision of this chapter commits a simple misdemeanor.”
Id. § 135I.5. Notably, the governing statute, section 135I.5, criminalizes only
violations of that statute, not violations of rules promulgated under chapter 135I.
See id.; see also Sanon, 865 N.W.2d at 519, 521. “[L]egislative intent is expressed by omission as well as by inclusion of
statutory terms.” Oyens Feed & Supply, Inc. v. Primebank, 808 N.W.2d 186, 193
(Iowa 2011) (alteration in original) (quoting Freedom Fin. Bank v. Est. of Boesen,
805 N.W.2d 802, 812 (Iowa 2011)). “When the legislature selectively places
language in one section and avoids it in another, we presume it did so
intentionally.” Sanon, 865 N.W.2d at 521. Here, the legislature expressly
criminalized rules promulgated under chapter 135 in section 135.38 but chose
not to include that language in section 135I.5. “The legislature knows how to criminalize violations of the department’s rules. . . . If the legislature wanted to 12
criminalize violations of pool regulations, it would have said so in section 135I.5.
It did not.” Id. at 521–22. Thus, section 135I.5’s specific penalty provision
governs here over section 135.38’s general provision. See Iowa Code § 4.7 (“If a
general provision conflicts with a special or local provision, they shall be
construed, if possible, so that effect is given to both. If the conflict between the
provisions is irreconcilable, the special or local provision prevails as an exception
to the general provision.”).
The Sanon majority further erred by concluding that “the rules of the
department” referenced in section 135.38 include “any rules the department
issues, not only under chapter 135 but also any other chapter administered by
the department.” 865 N.W.2d at 519; see also 865 N.W.2d at 513–15 (majority
opinion). This created a bigger problem because “each relevant, subsequent
chapter [after chapter 135] contains its own penalty provision, and the majority’s
interpretation of section 135.38 results in redundancies and conflicts between
the statutes.” Id. at 519–20 (Waterman, J., concurring in part and dissenting in
part). The partial dissent in Sanon identified some of the resulting conflicts:
For example, Iowa Code chapter 136C governs radiation machines and radioactive materials and is administered by the department. Section 136C.4 provides that a violation of a department rule is a serious misdemeanor, while under section 135.38 it would merely be a simple misdemeanor. Chapter 136D governs tanning facilities and authorizes the department to adopt rules. Iowa Code § 136D.7. The penalty provision, section 136D.9, allows only a civil penalty for violating the department’s rules, while the majority’s interpretation of section 135.38 adds a criminal misdemeanor penalty. We could avoid these conflicts between the statutes by construing the penalty provision in each chapter to apply to rules promulgated by the department under that chapter.
Id. at 520 (footnote omitted). Our canons of statutory interpretation counsel us
to avoid interpretations that create conflict and instead adopt interpretations that are harmonious. See State v. Boone, 989 N.W.2d 645, 649–50 (Iowa 2023) 13
(“We read statutes as a whole, meaning we look beyond the isolated words and
phrases to obtain a construction that is in harmony with surrounding
provisions.”); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be
interpreted in a way that renders them compatible, not contradictory.”). These
conflicts between the statutes are avoided when section 135.38 is properly read
to apply only to regulations promulgated under that chapter.
The number of statutory conflicts created by Sanon’s misinterpretation of
section 135.38 increased exponentially last year when the legislature merged the
IDPH with the Iowa Department of Human Services (DHS) and other
departments, forming the Iowa Department of Health and Human Services
(HHS).6 When Sanon was written, it effectively criminalized any knowing violation
of an IDPH regulation or order. See 865 N.W.2d at 514–15 (majority opinion).
Because of the merger, any knowing violation of an HHS rule or “lawful order,
written or oral, of the department or of its officers, or authorized agents” could
now be a crime. Iowa Code § 135.38. So if a parent disobeys the instruction of
an HHS caseworker, they may have committed a crime. That is astonishingly
broad . . . and wrong. And it is a new and compelling reason to overrule Sanon.7
6See 2022 Iowa Acts ch. 1131, § 51 (creating HHS, transitioning DHS and IDPH into HHS,
and setting a timeframe for the transition to take place—“beginning July 1, 2022, and ending June 30, 2023”). See generally 2023 Iowa Acts ch. 19 (implementing the changes to transition DHS and IDPH into HHS). See, e.g., id. ch. 19, § 125 (to be codified at Iowa Code § 135.1 (2024)) (changing chapter 135’s governing department from IDPH to HHS). 7Under the 2023 realignment of state departments, pool inspection duties in chapter 135I
were transferred to the Iowa Department of Inspections, Appeals, and Licensing. See 2023 Iowa Acts ch. 19, § 1618 (codified at Iowa Code § 135I.1). Section 135I.1(1) now defines “department,” as used in chapter 135I, as “the department of inspections, appeals, and licensing.” Iowa Code § 135I.1(1) (2023). Iowa Code section 135I.4 states that “[t]he department is responsible for registering and regulating the operation of . . . swimming pools.” And the department may “[a]dopt rules in accordance with chapter 17A for the implementation and enforcement of this chapter.” Id. § 135.4(5). Thus, swimming pools are no longer regulated by the same department as chapter 135 (now HHS). These legislative amendments further undermine Sanon. 14
C.f. Youngblut v. Youngblut, 945 N.W.2d 25, 45 (Iowa 2020) (McDonald, J.,
dissenting) (looking to new legal developments to determine whether we should
continue to adhere to an erroneous precedent).
Sanon was egregiously wrong when it was decided, and it persists in
creating problems today. “[S]tare decisis does not prevent the court from
reconsidering, repairing, correcting or abandoning past judicial announcements
when error is manifest, including error in the interpretation of statutory
enactments.” Vaudt v. Wells Fargo Bank, N.A., 4 N.W.3d 45, 50 (Iowa 2024)
(quoting McElroy v. State, 703 N.W.2d 385, 395 (Iowa 2005)); see also State v.
Liddell, 672 N.W.2d 805, 813 (Iowa 2003) (“Stare decisis ‘should not be invoked
to maintain a clearly erroneous result.’ ” (quoting Miller v. Westfield Ins., 606
N.W.2d 301, 306 (Iowa 2000) (en banc))). Because Sanon “proceed[ed] upon a
wrong principle, [was] built upon a false premise, and arriv[ed] at an erroneous
conclusion,” stare decisis does not prevent us from overturning this clearly
erroneous precedent. Miller, 606 N.W.2d at 306 (alterations in original) (quoting
Stuart v. Pilgrim, 74 N.W.2d 212, 216 (Iowa 1956)). “[W]e see no need to further
muddy the waters . . . by perpetuating [Sanon’s] errors.” Vaudt, 4 N.W.3d at 55.
Myers argues that even if Sanon was incorrectly decided at the time, the legislature has acquiesced in its interpretation, noting recent amendments to
Iowa Code section 670.4 that left intact section 670.4(1)(l) while adding new
immunity provisions.8 We disagree that legislative acquiescence precludes
overruling Sanon. “[T]he principles of stare decisis and legislative acquiescence
in combination ‘are not absolute,’ and we may overrule prior decisions ‘when
8See 2018 Iowa Acts ch. 1126, § 2 (codified at Iowa Code § 670.4(1)(q) (2019)) (adding immunity for beehives); 2020 Iowa Acts ch. 1027, § 3 (codified at Iowa Code § 670.4(1)(r) (2021)) (adding immunity for claims arising from use of firefighting equipment); 2021 Iowa Acts ch. 183, § 14 (codified at Iowa Code § 670.4A (2022)) (qualified immunity). 15
error is manifest, including error in the interpretation of statutory enactments.’ ”
Bd. of Water Works Trs. v. Sac Cnty. Bd. of Supervisors, 890 N.W.2d 50, 61 (Iowa
2017) (quoting McElroy, 703 N.W.2d at 395). We recently overruled precedent
interpreting a statute in Vaudt v. Wells Fargo Bank, N.A., despite more than two
decades of legislative acquiescence. See 4 N.W.3d at 54–55. “[T]he mere fact that
a legislature could take action ‘is no excuse for failing to overrule a statutory
precedent of ours that is clearly wrong, for the realities of the legislative process
often preclude readopting the original meaning of a statute that we have upset.’ ”
State v. Montgomery, 966 N.W.2d 641, 663 (Iowa 2021) (McDermott, J.,
concurring specially) (quoting Clark v. Martinez, 543 U.S. 371, 402 (2005)
(Thomas, J., dissenting)). We hereby overrule Sanon.
Without Sanon, there is no basis for finding a criminal offense based on
violations of these IDPH department rules. We hold that the City is immune from
liability under Iowa Code section 670.4(1)(l).
IV. Disposition
For those reasons, we vacate the decision of the court of appeals and affirm
the district court’s summary judgment dismissing this action with prejudice.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED. Christensen, C.J., and Mansfield, McDermott, and May, JJ., join this
opinion. McDonald, J., files an opinion concurring specially. Oxley, J., files an
opinion concurring specially. 16
#22–0917, Myers v. City of Cedar Falls
MCDONALD, Justice (concurring specially). Stare decisis is substantive law binding on this court just like any other
body of law. See Vaudt v. Wells Fargo Bank, N.A., 4 N.W.3d 45, 55 (Iowa 2024)
(McDonald, J., concurring in part and dissenting in part) (“In Iowa, the doctrine
of stare decisis is controlling substantive law and not just a policy preference,
rule of thumb, or best practice.”); Youngblut v. Youngblut, 945 N.W.2d 25, 44
(Iowa 2020) (McDonald, J., dissenting) (discussing stare decisis); State v. Davis,
944 N.W.2d 641, 651–52 (Iowa 2020) (McDonald, J., dissenting) (discussing
stare decisis); Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub.
Pol’y (forthcoming 2024) (stating the original law of this country “includes
enacted law, such as the Constitution, statutes, and treaties, but it also includes
unwritten law,” including “common-law doctrines of party presentation and of
stare decisis”). Following the law of stare decisis, I would adhere to Sanon v. City
of Pella, 865 N.W.2d 506 (Iowa 2015). Without overruling Sanon, I would affirm
the judgment of the district court. The district court correctly held that there is
no evidence in the summary judgment record showing the defendant knowingly
violated any statute or administrative regulation. I thus concur in the court’s judgment. 17
OXLEY, Justice (concurring specially). This case can be decided without reaching the merits of Sanon v. City of
Pella, 865 N.W.2d 506 (Iowa 2015). Principles of stare decisis and judicial
restraint require that we do so. I disagree with the majority’s decision to overrule
Sanon. I would affirm the district court’s conclusion that the City was entitled to
summary judgment on this record, and I therefore concur in the judgment only.
I. Stare Decisis Requires Adherence to Sanon v. City of Pella.
This is a case of statutory interpretation where the general assembly can
fix something if we misconstrue a statute’s meaning. Indeed, the Sanon dissent
expressly “invite[d] the legislature to take a fresh look at the scope of tort
immunity for municipal swimming pools in light of today’s decision,” id. at 518
(Waterman, J., concurring in part and dissenting in part), but the general
assembly has declined to take up that invitation—despite having revised the
immunity provisions of the municipal tort claims act several times since Sanon.
See, e.g., 2020 Iowa Acts ch. 1027, § 3 (codified at Iowa Code § 670.4(1)(r) (2021))
(adding a new provision related to emergency response equipment or vehicles
donated to a municipality); 2019 Iowa Acts ch. 153, § 1 (codified at Iowa Code § 670.4(1)(k) (2020)) (amending § 670.4(1) to include nonprofit corporations
delivering response services on behalf of a municipality to the protections
provided by that provision); 2018 Iowa Acts ch. 1126, § 2 (codified at Iowa Code
§ 670.4(1)(q) (2019)) (adding a new provision governing honey beehives on
municipal property). Given these legislative amendments, this case is an
“especially” good candidate for adhering to stare decisis. Bd. of Water Works Trs.
v. SAC Cnty. Bd. of Supervisors, 890 N.W.2d 50, 61 (Iowa 2017) (quoting In re
Est. of Vajgrt, 801 N.W.2d 570, 574 (Iowa 2011)) (“The rule of stare decisis ‘is especially applicable where the construction placed on a statute by previous 18
decisions has been long acquiesced in by the legislature . . . .’ ” (omission in
original) (quoting Vajgrt, 801 N.W.2d at 574)). If the general assembly disagreed
with Sanon’s interpretation of section 135.38 to remove the immunity provided
to municipal swimming pools for knowing violations of any department
regulation, it could easily have fixed it in the last decade. But it hasn’t. See
Vajgrt, 801 N.W.2d at 574 (noting the legislature’s repeated reenactment of a
statute without disturbing the prior judicial interpretation was evidence
affirming acquiescence); see also State v. Montgomery, 966 N.W.2d 641, 651
(Iowa 2021) (refusing to overrule a prior decision based, in part, on the
reenactment rule, noting that “the legislature recently amended section 709.3,
defining sexual abuse, and section 702.17, defining ‘sex act,’ without overruling
Pearson”).
This fact has led us on numerous occasions to declare that “interpretation
of a statute . . . [is an] area[] where historically we have been most reluctant to
disturb precedent.” Youngblut v. Youngblut, 945 N.W.2d 25, 39 (Iowa 2020)
(citing cases); see also State v. Lee, ___, N.W.3d ___, ___, 2024 WL 2096203, at
*3 (Iowa May 10, 2024) (“We do not overturn our precedents lightly and will not
do so absent a showing the prior decision was clearly erroneous.” (quoting Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 83 (Iowa 2022))); Haskenhoff
v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 585 (Iowa 2017) (“We are
adhering to our consistent prior interpretations of the Act since 1992—
interpretations that have not been disturbed by the legislature—and the doctrine
of stare decisis.”). There is no stability in our law if it changes every time there
is a shift on our court. See Bd. of Water Works Trs., 890 N.W.2d at 60–61 (“Courts
adhere to the holdings of past rulings to imbue the law with continuity and
predictability and help maintain the stability essential to society.” (quoting State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014))). “If courts are viewed as unbound 19
by precedent, and the law as no more than what the last Court said, considerable
efforts would be expended to get control of such an institution—with judicial
independence and public confidence greatly weakened.” Planned Parenthood of
the Heartland, Inc. v. Reynolds ex rel. State, 975 N.W.2d 710, 751 (Iowa 2022)
(Christensen, C.J., concurring in part and dissenting in part) (quoting Henry
Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev.
723, 753 (1988)).
I agree with Justice McDonald that stare decisis is a substantive legal
doctrine that we cannot simply set aside. I write separately to explain why this
case differs from our recent case of Vaudt v. Wells Fargo Bank, N.A., 4 N.W.3d
45 (Iowa 2024), where he and I disagreed in our application of the doctrine. See
id. at 55 (McDonald, J., concurring in part and dissenting in part).
Stare decisis is not an inexorable command that prior precedents can
never be overruled. See State v. Short, 851 N.W.2d 474, 515 (Iowa 2014)
(Waterman, J., dissenting) (“Although ‘not an inexorable command,’ stare decisis
is a foundation stone of the rule of law, necessary to ensure that legal rules
develop ‘in a principled and intelligible fashion.’ ” (quoting Michigan v. Bay Mills
Indian Cmty., 572 U.S. 782, 798 (2014))). “For that reason, this Court has always held that ‘any departure’ from the doctrine ‘demands special justification.’ ” Id.
(quoting Bay Mills, 572 U.S. at 798). For example, in McElroy v. State, we
overruled Smith v. ADM Feed Corp., 456 N.W.2d 378 (Iowa 1990) (en banc), where
we had held that a plaintiff bringing a claim under the Iowa Civil Rights Act
(ICRA) did not have a statutory right to a jury trial. 703 N.W.2d 385, 395 (Iowa
2005); see also Smith, 456 N.W.2d at 380–82 (construing the ICRA, which was
silent on the right to a jury trial). When asked to revisit that holding in McElroy,
we concluded that “the majority’s statutory analysis in Smith was fundamentally flawed” based on its misunderstanding that “the ICRA framework was 20
administrative in nature.” 703 N.W.2d at 393. We further explained that
experience putting the Smith holding into practice, coupled with changes in
federal law, revealed the problems with that interpretation. Id. at 394–95
(recognizing the problems created when “plaintiffs bringing several different
causes of action would have some of them tried by a jury, with others tried to
the court” and noting that ICRA claims tried in federal court alongside Title VII
claims, which were entitled to a jury trial, were tried to a jury despite our
holding).
We recognized a similar problem with prior precedent in our recent
decision of Vaudt, 4 N.W.3d 45 (majority opinion). Vaudt involved application of
a special one-year statute of limitations related to claims arising “by reason of a
transfer of an interest in real estate by a trustee” to a claim for a boundary by
acquiescence. Id. at 50 (quoting Iowa Code § 614.14(5)(b)). We had previously
held that the one-year limitations period applied to such claims in Heer v. Thola,
613 N.W.2d 658, 662–63 (Iowa 2000) (en banc). We overruled Heer, but only after
concluding that that court’s interpretation of section 614.14(5)(b) was “based on
its [mis]understanding that establishing a boundary by acquiescence is not self-
executing, such that ‘judicial intervention is a requirement for establishing title by acquiescence.’ ” Vaudt, 4 N.W.3d at 51 (quoting Heer, 613 N.W.2d at 661).
Rather, a boundary by acquiescence is self-executing, so the Heer court’s
underlying premise about that doctrine misguided its statutory construction
analysis. See id. In addressing stare decisis, we explained that Heer’s holding
relied on “reasoning that distorts the acquiescence doctrine.” Id. at 54. Thus,
Heer’s holding, left in place, spread that distortion of a different doctrine beyond
its application to the statute at issue.
The same is not true here. The majority merely agrees with the Sanon dissent’s interpretation of Iowa Code section 135.38 (2019) over that majority’s 21
interpretation. But the only difference is in the competing views of how to apply
the rules of statutory interpretation to that Code provision. The majority has
identified no underlying misunderstanding of substantive law or actual problems
(as opposed to the fabricated speculative issues far removed from the facts of the
case before us that the majority creates to support a sense of urgency)9 that flow
from the Sanon majority’s holding.
Stare decisis requires us to adhere to prior decisions we believe to be
wrong. See Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455–56 (2015) (“Indeed,
stare decisis has consequence only to the extent it sustains incorrect decisions;
correct judgments have no need for that principle to prop them up.”). Here, the
district court did not rely on Sanon, although the court of appeals did in reversing
the district court’s summary judgment. I would vacate the court of appeals
decision and affirm the district court’s holding that even if a knowing violation
of the administrative regulations was a criminal offense, Myers failed to present
evidence that would allow a fact-finder to conclude that an employee of the City
knowingly violated the relevant regulations. II. A Rule Violation Must Provide a Sufficiently Definite Standard Before a Municipal Employee Can Know He Is Committing a Criminal Offense. In Sanon, the City of Pella conceded that it failed to use the operable
underwater lighting system, and its lifeguards admittedly could not see the drain
that night because the water had become so murky. 865 N.W.2d at 509 & n.2
9 The majority claims that every parent who disobeys an Iowa Department of Health and Human Services (HHS) caseworker’s instruction “may have committed a crime,” given the general assembly’s recent merger of the Iowa Department of Public Health (IDPH) with the Iowa Department of Human Services (DHS), forming HHS. The majority’s supposition sets up a straw man to justify its otherwise unjustified overruling of Sanon. To the extent they have any relevance, the legislative reorganization of the executive departments and accompanying significant statutory amendments to various provisions of chapters 135, 135I, and related chapters—without amending section 135.38—counsel us to leave Sanon alone. The effects of the numerous statutory changes must necessarily be left for another day when those issues are before us. They certainly do not support overruling Sanon. 22
(majority opinion). The only issue in Sanon was whether the conceded rule
violations constituted a criminal offense, which turned on whether section
135.38 applied to rules promulgated under chapter 135I. See id. at 510–15. We
did not address the separate question raised by the City in this case—whether a
regulation can be knowingly violated when the regulation fails to provide a
sufficiently objective standard against which to determine whether it has been
violated.
The court of appeals essentially applied a strict liability standard—either
the diving board was slip-resistant (and not in violation), or it was not (and in
violation). But a violation of a regulation is criminal only if it is a knowing
violation. See Iowa Code § 135.38 (“Any person who knowingly violates any . . .
of the rules of the department . . . shall be guilty of a simple misdemeanor.”
(emphasis added)). “To act ‘knowingly’ has been defined to mean that a person
acted voluntarily and intentionally, and not because of mistake or accident or
other innocent reason.” Sahu v. Iowa Bd. of Med. Exam’rs, 537 N.W.2d 674, 678
(Iowa 1995). We generally require objective standards in criminal statutes to give
individuals sufficient notice that their conduct will subject them to criminal
liability. See, e.g., State v. Baker, 688 N.W.2d 250, 255 (Iowa 2004) (holding that a penal statute must define criminal offenses “with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement” (quoting
State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996), overruled on other grounds by
State v. Robinson, 618 N.W.2d 306 (Iowa 2000) (en banc))); see also State v.
Opperman, 826 N.W.2d 131, 133 (Iowa Ct. App. 2012) (“It is a bedrock principle
of the criminal justice system that, almost without exception, one is required to
have some level of culpability before being subjected to criminal sanctions.”). Thus, we require higher standards of certainty in statutes imposing criminal 23
penalties than in statutes enforced only by civil sanction. See State v. Vick, 205
N.W.2d 727, 730 (Iowa 1973). For criminal liability, “[t]here must be
ascertainable standards of guilt.” Id. (quoting Winters v. New York, 333 U.S. 507,
515 (1948)).
Myers is correct that there does not need to be a conviction or proof beyond
a reasonable doubt that a City employee violated the regulations; he “need only
prove by a preponderance of the evidence that a City employee or officer
committed the criminal act causing injury.” Sanon, 865 N.W.2d at 517. But he
misplaces his reliance on civil cases allowing a jury to determine a defendant’s
civil liability involving “slippery” surfaces in negligence or premises liability
actions. See, e.g., Wieseler v. Sisters of Mercy Health Corp., 540 N.W.2d 445, 451
(Iowa 1995) (addressing whether plaintiff’s evidence was sufficient to generate a
jury question on whether the frost in defendant’s parking lot created an
unreasonable risk of harm); Smith v. Cedar Rapids Country Club, 124 N.W.2d
557, 563 (Iowa 1963) (holding that even though witnesses for the defense
testified “that the floor was not slippery in that area, it must be concluded there
was a jury question as to that issue”). He must still prove acts that amount to a
criminal offense before immunity is abrogated under section 670.4(1)(l). See Sanon, 865 N.W.2d at 516 (“[W]e are satisfied the term ‘criminal offense’ refers
to that conduct which is prohibited by statute and is punishable by fine or
imprisonment.” (quoting In re Prop. Seized from Kaster, 454 N.W.2d 876, 878
(Iowa 1990))). So even though a conviction is not required, the employee must
have engaged in conduct that is punishable as a crime. Id.
The problem here is not, as Myers argues, whether sufficient
circumstantial evidence establishes the employee’s awareness or knowledge of
the diving board’s condition. The problem is identifying when the diving board’s condition reaches the level of lacking slip-resistance to say that an employee 24
knew it amounted to a violation of the regulations. There cannot be a knowing
violation of a rule without an established standard for enforcement. See Kaster,
454 N.W.2d at 878 (“[A] penal statute must satisfy two standards: (1) it must
give a person of ordinary intelligence fair notice of what is prohibited, and (2) it
must provide an explicit standard for those who apply it.” (quoting State v.
Duncan, 414 N.W.2d 91, 96 (Iowa 1987) (en banc))); see also State v. Buchanan,
549 N.W.2d 291, 294 (Iowa 1996) (defining “knowledge” as “a conscious
awareness,” and “[k]nowingly” as “a knowledge of the existence of the facts
constituting the crime” (first quoting Iowa State Bar Ass’n, Iowa Criminal Jury
Instruction 200.3 (1995); then quoting State v. Winders, 366 N.W.2d 193, 195
(Iowa Ct. App. 1985) (en banc))).
For example, the administrative regulations related to visibility at issue in
Sanon had sufficiently definite standards for determining compliance. See 865
N.W.2d at 508. Iowa Administrative Code rule 641—15.4(4)(m)(2)(1) requires
lighting sufficient “so that all portions of the swimming pool, including the
bottom and main drain, may be clearly seen.” Similarly, Iowa Administrative
Code rule 641—15.4(2)(c) mandates closure of a swimming pool deeper than
eight feet “if the main drain is not clearly visible from the deck.” “Clearly seen” and “clearly visible” provide objective standards for determining compliance with
these rules, as demonstrated by use of similar terms in other criminal statutes.
See, e.g., Iowa Code § 321.303 (prohibiting drivers from passing vehicles going
the same direction “unless the left side is clearly visible and is free of oncoming
traffic”); Iowa Code § 321.388 (requiring rear vehicle lamps to illuminate
registration plates and render them “clearly legible from a distance of fifty feet”).
These penal provisions demonstrate that “clear visibility” is a well-recognized
standard utilized by courts making factual determinations in a penal setting that puts individuals on notice of prohibited conduct. See State v. Sullivan, 298 25
N.W.2d 267, 271 (Iowa 1980) (looking to similar statutes to give definiteness to
a statute).
This stands in stark contrast to the regulations at issue in this case. Diving
boards are required to have a “slip-resistant surface.” Iowa Admin. Code rs.
641—15.4(4)(c)(6), 641—15.5(13)(a)(5). In some industries, slip resistance is
measured. As Myers’ expert, Tom Griffiths, alluded to,10 some industries define
levels of slip resistance based on a surface’s coefficient of friction, setting specific
acceptable standards. See, e.g., Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275,
1279 (11th Cir. 2015) (“Evidence concerning a surface’s COF [(coefficient of
friction)] is generally presented through the testimony of an expert witness, who
opines on the appropriate COF industry standard and on whether the surface in
question meets that standard.”); id. at 1280 (“According to Dr. Zollo, the
American Society for Testing and Materials (ASTM), the Occupational Safety and
Health Administration (OSHA), the Federal Register, and the Hospital Research
Bureau set the minimum COF value for passenger walkways at 0.50.”). But as
Griffiths also explained, there is no such measurable level for diving boards in
the swimming pool industry—certainly not on the record presented to the district
court in considering whether to grant summary judgment. Rather, according to Griffiths, the industry standard is the “barefoot test”—take your shoes and socks
off and see if the surface is slippery. In response to the question of whether there
is a measurement for determining when a diving board is no longer slip-resistant,
Griffiths responded:
No; no, you’re not missing anything. That’s the frustrating thing about what we do. We depend upon reasonably prudent facility
10In his deposition, Griffiths explained: “There is coefficiency of friction numbers, very
objective numbers that different industries subscribe or prescribe for surfaces. Now, particularly in a wet environment they are not as reliable, and I've read many opinions before. The true test of nonslip surfaces, particularly in a water environment, in an aquatic environment is the barefoot test as opposed to the . . . coefficiency of friction.” 26
managers to maintain their boards so that it’s nonslip. We -- It’s difficult -- The industry doesn’t address some of these areas objectively in black and white numbers. It is incumbent upon the facility manager to get a bucket of water, throw it on the surface -- whether it be a locker room floor or a diving board, throw a bucket of water on that surface, take their shoes and socks off and see if -- see if it’s slippery; I mean, that is ultimately the best way to do it, and that’s the way we have been doing it for decades.
This is consistent with testimony from The Falls Aquatic Center’s recreation
supervisor, Chris Schoentag, that he used his “best judgment” to test a diving
board’s slip resistance because he was unaware of any method for testing or
determining the sufficiency of the board’s surface friction.
A violation of a regulation cannot be knowing without some sufficiently
definite standard against which to measure the employee’s conduct. As
presented to the district court on summary judgment here, the term “slip
resistant”—which Griffiths measures using only the “barefoot test”—does not
pass that test. The department had just given the pool a clean inspection report.
Schoentag testified that in his “best judgment,” the diving board was slip-
resistant. The Cedar Falls recreation and community programs manager, Bruce
Verink, who oversaw Schoentag’s removal and reinstallation of the diving boards,
testified that he examined the board when it was installed at the beginning of
the summer to determine whether it had “enough grit to hold the feet and keep
them from sliding on the board,” and concluded it did. Myers presented no
contradictory evidence about the City’s knowledge that the board’s surface was
not slip-resistant. Sending this case to a jury to allow it to apply its own standard
of “slipperiness,” as Myers proposes, would impermissibly allow the jury to
resolve “on an ad hoc and subjective basis,” Baker, 688 N.W.2d at 255 (quoting
Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)), whether the City’s
employees engaged in criminal conduct. 27
Even if administrative rule violations can constitute a simple misdemeanor
under Iowa Code section 135.38, neither the regulations’ requirements for slip-
resistant surfaces on diving boards nor Griffiths’ opinion provided sufficient
guidance on how that is measured. Absent such a standard—and coupled with
the recent Black Hawk Health Department clean inspection report and
Schoentag’s and Verink’s testimony that they believed the diving board was slip-
resistant—Myers failed to present evidence from which a jury could find that a
city employee knowingly violated the regulations, i.e., committed a criminal
offense. Therefore, the district court properly granted summary judgment to the
City based on the immunity provided under Iowa Code section 670.4(1)(l).