Opinion
No. 2-069 / 01-408
Filed August 28, 2002
Appeal from the Iowa District Court for Johnson County, Douglas S. Russell, Judge.
The plaintiff appeals from the district court's grant of the defendants' motions for summary judgment.
AFFIRMED.
Davis Foster of Foster Law Office, Iowa City, for appellant.
Andrew P. Matthews, Assistant City Attorney, Iowa City, for appellee Iowa City.
Terry J. Abernathy and Thad J. Collins of Pickens, Barnes Abernathy, Cedar Rapids, for appellee Coralville.
J. Patrick White, County Attorney, for appellee Johnson County.
Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellee State.
Heard by Sackett, C.J., and Huitink and Hecht, JJ.
Plaintiff, Rebecca S. Rudman, sued defendants, City of Iowa City, City of Coralville, Johnson County, Iowa, and State of Iowa, contending as a result of their negligence in not enforcing a no-contact order, she was assaulted by Donald Wood. The district court sustained defendants' motions for summary judgment and dismissed her suit. Plaintiff appeals, contending the district court erred (1) in its interpretation of Iowa Code section 236.11 (1997), (2) in finding defendants immune from suit on her claim, and (3) in determining defendants did not have a special relationship with her so as to owe her a greater duty than owed the public at large. We affirm.
We review a ruling on a summary judgment motion for errors at law. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000); Swartzendruber v. Schimmel, 613 N.W.2d 646, 649 (Iowa 2000); Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 362 (Iowa 2000). A district court properly grants summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Crippen, 618 N.W.2d at 565; Swartzendruber, 613 N.W.2d at 649; Shivvers v. Hertz Farm Mgmt., Inc., 595 N.W.2d 476, 478 (Iowa 1999). A factual issue is "material" only if "the dispute is over facts that might affect the outcome of the suit." Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 35 (Iowa 1999) (citation omitted).
The facts were basically undisputed. Plaintiff contended she was the subject of domestic abuse by Wood. She petitioned for, and the district court entered, an order under section 236.11 prohibiting Wood from contacting her. Plaintiff contended Wood continued to telephone her and send her e-mail. On October 13, 1996 plaintiff filed a complaint with Coralville police. Wood spent a night in jail. On October 29, 1996 Wood called plaintiff, sent her e-mail, and came to her home where he set her hair on fire and threatened her children. Wood was arrested and charged with burglary but not assault. An order preventing defendant from having contact with plaintiff was entered in the burglary case, and Wood was released on bond. At plaintiff's request the earlier domestic abuse no-contact order was dismissed. The order issued made no provision for mandatory arrest. Because the order issued in the burglary charge did not arise from a charge of domestic abuse assault, it was not entered on the domestic abuse registry.
The order entered on its face gave no indication it was the result of an assault or a domestic abuse assault.
On Friday, November 15, 1996 Wood called plaintiff at her place of work on the University of Iowa campus and made threats against plaintiff and her children. The Coralville police department and University of Iowa were notified of Wood's conduct. The Coralville police department attempted to verify there was a no-contact order in place and were told by the Johnson County sheriff's office that it could not confirm that such an order was in place.
On Saturday, November 16, 1996 the Johnson County attorney's office verified the existence of a no-contact order as a part of a burglary charge, but because it was a Saturday, did not make arrangements to have Wood arrested until Monday.
On Sunday, November 17, 1996 Wood came to plaintiff's home, assaulted, and sexually abused her. It is for the injuries resulting from that assault and abuse that plaintiff seeks relief.
Plaintiff first contends the defendants were obligated, pursuant to the mandatory arrest provisions of section 236.11, to arrest Wood.
Section 236.11 provides:
236.11 Duties of peace officer — magistrate.
A peace officer shall use every reasonable means to enforce an order or court-approved consent agreement entered under this chapter, a temporary or permanent protective order or order to vacate the homestead under chapter 598, an order that establishes conditions of release or is a protective order or sentencing order in a criminal prosecution arising from a domestic abuse assault, or a protective order under chapter 232. If a peace officer has reason to believe that domestic abuse has occurred, the peace officer shall ask the abused person if any prior orders exist, and shall contact the twenty-four hour dispatcher to inquire if any prior orders exist. If a peace officer has probable cause to believe that a person has violated an order or approved consent agreement entered under this chapter, a temporary or permanent protective order or order to vacate the homestead under chapter 598, an order establishing conditions of release or a protective or sentencing order in a criminal prosecution arising form a domestic abuse assault, or, if the person is an adult, a violation of a protective order under chapter 232, the peace officer shall take the person into custody and shall take the person without unnecessary delay before the nearest or most accessible magistrate in the judicial district in which the person was taken into custody. The magistrate shall make an initial preliminary determination whether there is probable cause to believe that an order or consent agreement existed, and that the person taken into custody has violated its terms. The magistrate's decision shall be entered into the record.
If a peace officer has probable cause to believe that a person has violated an order or approved consent agreement entered under this chapter, a temporary or permanent protective order or order to vacate the homestead under chapter 598, an order establishing conditions of release or a protective or sentencing order in a criminal prosecution arising from a domestic abuse assault, or a protective order under chapter 232, and the peace officer is unable to take the person into custody within twenty-four hours of making the probable cause determination, the peace officer shall either request a magistrate to make a determination as to whether a rule to show cause or arrest warrant should be issued, or refer the matter to the county attorney.
If the magistrate finds probable cause, the magistrate shall order the person to appear before the court which issued the original order or approved the consent agreement, whichever was allegedly violated, at a specified time not less than five days nor more than fifteen days after the initial appearance under this section. The magistrate shall cause the original court to be notified of the contents of the magistrate's order.
A peace officer shall not be held civilly or criminally liable for acting pursuant to this section provided that the peace officer acts in good faith, on probable cause, and the officer's acts do not constitute a willful and wanton disregard for the rights or safety of another.
The district court found the no-contact order in place on November 15, 1996 was not a section 236 no-contact order. Consequently, a mandatory arrest was not required. Plaintiff contends the district court was incorrect in finding section 236.11 did not apply. She advances because the section also applies to a protective order or sentencing order in a criminal prosecution resulting from a domestic abuse assault the order issued in the burglary charge triggered the mandatory arrest provision of section 236.11.
It is undisputed that on November 15, 1996 the only no-contact order in place was the criminal no-contact order relating to the October 29, 1996 burglary charge against Wood. Defendant argues that mandatory arrest is required because the order came after Wood broke into her house and assaulted her even though he was not charged with domestic assault after the incident.
The issue is one of statutory interpretation of section 236.11. We are "required to interpret [statutory] language fairly and sensibly in accordance with the plain meaning of the words used by the legislature." Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). "Precise, unambiguous language will be given its plain and rational meaning in light of the subject matter." Id. (citing Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995)). "Rules of statutory construction are to be applied only when the explicit terms of a statute are ambiguous." Id.
The relevant portion of that section provides:
. . . If a peace officer has probable cause to believe that a person has violated an order or approved consent agreement entered under this chapter, a temporary or permanent protective order, . . . an order establishing conditions of release or a protective or sentencing order in a criminal prosecution arising from a domestic abuse assault, the peace officer shall take the person into custody and shall take the person without unnecessary delay before the nearest or most accessible magistrate in the judicial district in which the person was taken into custody. . . .
Iowa Code § 236.11 (emphasis added). Defendants argue the criminal no-contact order in place on November 15, 1996 does not, under this record or the applicable law, fall under any of the categories specified above and no mandatory arrest duties applied.
We agree with plaintiff there is evidence that the November 15, 1996 order was entered as the result of a burglary prosecution that arose from a domestic assault. Plaintiff's argument would have been well taken if the order had specifically provided it was entered in a burglary prosecution that arose from a domestic assault. The order, however, made no such provision. Any connection between the no-contact order and domestic abuse would not have been apparent from the order. On its face, the order arose from a burglary case, not a domestic abuse case. Nowhere in the order was any reference made to domestic abuse. There was no direction from the order that Wood was to be taken into custody by a peace officer upon its violation. Although domestic assault occurred during the burglary, there is no reason to believe an officer enforcing the order would have been privy to the abuse or even to the domestic nature of the burglary.
If we were to adopt plaintiff's argument, under the facts of this case we would be imposing on an officer the obligation to look beyond the plain language of an order. Absent a finding by the court that a no-contact order issued in a criminal prosecution arises from domestic abuse, section 236.11 does not apply. We affirm on this issue.
Plaintiff next contends that the district court erred in finding the defendants immune.
To take a person into custody under Iowa Code section 236.11 the officer must have probable cause to believe a person has violated an order or approved consent decree as defined by the statute.
This is a penal statute. In construing a statute that is penal in nature, doubts are resolved in favor of the accused. State v. Soppe, 374 N.W.2d 649, 652 (Iowa 1985). When a statute is plain and clear we should not reach beyond the express terms of the statute. See Garwick v. Iowa Dep't. of Transp., 611 N.W.2d 286, 289 (Iowa 2000). The statute does not provide for mandatory arrest under an order issued in a burglary charge.
Plaintiff contends the arrest of Wood was mandated by statute. Having found it was not, we affirm on this issue.
Defendant next contends that the district court erred in finding she was not owed a greater duty because of defendant's special relationship with her.
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct . . .
The liability imposed by section 670.2 [municipal tort liability] 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.
. . .
10. Any claim based upon an act or omission of an officer or employee of the municipality, whether by issuance of permit, inspection, investigation, or otherwise, and whether the statute, ordinance, or regulation is valid, if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.
Iowa Code § 670.4(10) (1995).
In Hameed v. Brown, 530 N.W.2d 703 (Iowa 1995), the court, in interpreting section 670.4(10), held that the terms "supervise or control" should be given their ordinary meaning as defined in the standard dictionary. Hameed, 530 N.W.2d at 707. Quoting from Webster's Third New International Dictionary (P. Gove ed. 1993), the court said that, "Supervise" means the act of "oversee[ing] with the powers of direction and decision the implementation of one's own or another's intentions. . . ." "Control" means to "exercise restraining or directing influence over" or "have power over." Id.
In applying the language of section 670.4(10) to the case before us we need not decide whether Wood and his behaviors were "events" or "property" under the supervision or control of the defendants. Plaintiff appears to argue they are because there was in force a statute requiring defendants to arrest Wood. We have, as did the district court, found otherwise. Even if the defendants were required to arrest, they were not supervising or controlling Wood in a manner that denies them the immunity conveyed by section 670.4(10). See also Hameed, 570 N.W.2d at 707; Donahue v. Washington County, 641 N.W.2d 848, 851-52 (Iowa Ct.App. 2002); Williams v. Bayers, 452 N.W.2d 624, 625 (Iowa Ct.App. 1990). We affirm.
AFFIRMED.
Huitink, J. concurs; Hecht, J. concurs specially.
I do not join the majority's opinion insofar as it concludes peace officers had no duty to arrest Wood for violation of the no contact order issued in connection with the burglary charge. I would, however, affirm the district court's decision solely on the basis of defendants' immunity under Iowa Code section 670.4(10). Plaintiff seeks to avoid the reach of the immunity statute by claiming defendants' public officers or employees committed a criminal offense when they failed to arrest Wood for violation of a protective order in a criminal prosecution arising from a domestic abuse assault. See section 670.4(1) (exempting from immunity claims arising from acts or omissions constituting actual malice or criminal offense). A public officer who knowingly fails to perform a duty required by law commits a serious misdemeanor. See Iowa Code section 721.2(6). However, I believe plaintiff failed in this case to generate a fact question on the issue of whether defendants' public officers or employees knowingly breached a duty to arrest Wood. Accordingly, I conclude the district court was required to grant summary judgment and I therefore join in the result reached by the majority.