Opinion
No. C99-1013 MJM
September 26, 2001
OPINION and ORDER
This case arose out of a boating accident that occurred in South Sabula Lake, which is adjacent to a park maintained and regulated by Defendant Jackson County Conservation Board (hereinafter "the Board"). On June 22, 1997, Angela Winston was swimming in the water adjacent to the park when she was struck by an intoxicated boater, thereby incurring serious injuries. Angela and her father (hereinafter "the Winstons") brought this diversity action alleging negligence by the Board in failing to adequately supervise and maintain a public swimming area under its control. The Winstons seek damages for Angela's past and future medical expenses, pain and suffering, and mental anguish. Mr. Winston also seeks loss of consortium damages due to his daughter's injuries.
Presently before the court is the Board's motion for summary judgment as to all claims on the grounds that it owed no duty to Plaintiffs at the time of the accident and/or it is immune from tort liability pursuant to Iowa's Governmental Tort Liability Act (ITLA), Iowa Code, Chapter 670. (Doc. no. 30). Following the submission of briefs by the parties, oral arguments were heard on June 18, 2001.
I.
The standard for granting summary judgment is well established. A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the Court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Montgomery v. John Deere Co., 169 F.3d 556, 559 (8th Cir. 1999). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue of material fact is genuine "if it has a real basis in the record." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita, 475 U.S. at 586-87).
The party moving for summary judgment bears the "initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of genuine issue." Celotex, 477 U.S. at 323. Once the moving party has carried its burden, the opponent must go beyond the pleadings and designate specific facts-by such methods as affidavits, depositions, answers to interrogatories, and admissions on file-that show there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. The evidence of the nonmoving party is to be considered as true, and justifiable inferences arising from the evidence are to be drawn in his or her favor. Anderson, 477 U.S. at 255. If the evidence of the nonmoving party is "merely colorable," or is "not significantly probative," summary judgment may be granted. Id. at 249-50. Thus, although the nonmoving party does not have to provide direct proof that genuine issues of fact exist for trial, the facts and circumstances that the nonmoving party relies upon must "attain the dignity of substantial evidence and must not be such as merely to create a suspicion." Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985). In essence, the evidence must be "such that a reasonable jury could find a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
II.
On June 22, 1997, Angela Winston, then age 11, was swimming and playing in the waters of South Sabula Lake, just adjacent to a camping area at South Sabula Lake Park ("the Park"), when she was struck and seriously injured by a boat being operated by Scott Jeffrey Johnson. Mr. Johnson was intoxicated at the time of the accident.
In this suit, Angela Winston and her father allege that negligence on the part of Defendant Jackson County Conservation Board was the proximate cause of Angela's injuries. Specifically, the Winstons argue that the Board was negligent in: (1) failing to keep the public swimming area segregated from the adjacent navigation channel; (2) failing to provide buoys or other beacons or barriers to warn boaters of the location of the public swimming area; (3) failing to otherwise operate the public swimming area in a fashion so as to prevent the entry of motorboats into the area designated for swimmers; and (4) failing to warn that a motorboat might enter the public swimming area and subject swimmers to potential injury.
Defendant's summary judgment challenge is premised on two theories. First, Defendant contends that, as a matter of law, its duty to Park visitors stopped at the shoreline; in other words, the Board's duty of care to its Park invitees did not extend to supervision or control of activities in the Lake itself. Citing management and licensing agreements between the Board and the State and between the State and the Department of the Army — which exclude the Lake from the Board's management and which obligate the State to regulate various aspects of water usage — Defendant argues that it cannot be held responsible for activity in water over which it had no legal authority or control. Alternatively, Defendant asserts that to the extent it did owe a duty of care to Plaintiffs, any actions taken in the exercise of that duty were discretionary and thus Defendant is shielded from liability under Iowa Code § 670.4 which grants immunity to governmental entities and actors exercising "discretionary functions." See IC § 670.4(3).
To understand the parties' respective arguments for and against liability, some detail must be provided regarding the layout of the Park as well as its connection to county, city, state and federal entities. In 1957, the State of Iowa, through a license with the Department of the Army, was granted a license to use and occupy several hundred acres of land and water for the purpose of developing a variety of public recreational areas (hereinafter, "the Licensing Agreement"). See Def.'s App., at 8. Included in the land subject to the license was approximately 14 acres of land later developed as South Sabula Lake Park, which is located between, and bordered by, South Sabula Lake ("the Lake") and the Mississippi River. The Park was developed and is maintained by Jackson County through its Conservation Board pursuant to a Management Agreement between Jackson County and the Iowa Department of Natural Resources (IDNR), successor to the Iowa State Conservation Commission. The Management Agreement between the Board and the IDNR covers no part of either the Lake or the river.
The record demonstrates that the United States, through the Department of the Army, owns the land that makes up the Park as well as the water and land comprising South Sabula Lake. See Def.'s App. 8-24 (Licensing Agreement and subsequent amendments). The Army has delegated certain rights and responsibilities to the State of Iowa, through the Licensing Agreement, while still retaining control as to some aspects of the exercise of those rights and responsibilities. For example, the Army Corps of Engineers must approve plans for the construction of buildings, improvements, piers, boat slips, fences, signs, and landscaping plans. See Licensing Agreement, ¶ 2. The Licensing Agreement also requires that the State ensure free access to the water, see id., ¶ 16, and compliance with "all applicable laws, ordinances, and regulations of the Federal Government, the State, the county and the municipality wherein the said lands are located . . ." Id., ¶ 15. The license was revocable in the event the State violated any agreement terms. See id., ¶ 11.
The Management Agreement between the IDNR and Jackson County further allocates responsibility for the Park between the State and the Board. See Management Agreement, at Def.'s App. 25. These limitations on the Board's autonomy include the application of state regulations and laws regarding the use of state-owned access areas, the necessity for prior approval of the State for improvements and removing or disturbing trees and vegetation, and the requirement that the public not be denied the right to enter upon and use the area for all lawful purposes. See id., ¶¶ 1(c), 1(d), 1(f), 1(g), and (3); see also IAC 571-61.5 (setting forth "conditions of public use which apply to all state parks and recreation areas"). In fact, physical improvements at the Park, including the addition of facilities, structures and landscaping, are subject to the approval of both the State and the Army Corps of Engineers. (Parker Affid., at Def.'s App. 31). The Management Agreement could be terminated "should it be determined that either party is failing to comply with the terms of the grant." Id., ¶ 4.
The Park itself consists of designated campsites, a centrally located washroom with showers, a covered picnic shelter, a playground, a boat ramp and a parking lot. See Def.'s App. 32 (not-to-scale map and legend). At some point, in accordance with the Management Agreement, the Board sought and received approval to construct a boat ramp extending from Park property into the Lake. Purportedly in response to boater complaints, the Board placed a sign on the ramp forbidding swimming and fishing in that immediate area. During the camping season, a campground attendant resided on site Wednesday through Sunday. The duties of the campground attendant included cleaning and maintenance, watching for conditions/problems in the Park and campground area, verifying campground registration and selling firewood. Camping fees ranged from $8 to $12 per night. Maintenance activities were performed by Board personnel as needed. A formal monthly inspection was conducted of camping areas to review the condition of trails, roads, signs, gates and the boat ramp. The playground equipment was formally inspected every two weeks.
With regard to the Lake water itself, section 455A.5(6) of the Iowa Code gives the Natural Resource Commission ("the NRC") the power to adopt rules concerning recreational areas under its control. Pursuant to this statutory grant of authority, the NRC has adopted rules relating to and regulating the use of waters under its jurisdiction, including South Sabula Lake. See, generally, Iowa Administrative Code (IAC) 571-Ch. 40, "Boating Speed and Distance Zoning," at Def.'s App. 72-81. In some locations the NRC has designated restricted speed or no wake zones. See, e.g., §§ 40.17 (providing, at Wapsipinicon River area, that "[n]o motorboat shall be operated at a speed which will create a wake within the zoned areas designated by regulatory buoys or signs . . .") and 40.18 (providing, in Lake Manawa, that "[n]o motorboat shall be operated at a speed greater than five miles per hour within the zoned areas 300 feet from shore . . ."). At other locations it has authorized designated swimming areas. See, e.g., §§ 40.28 and 30 (providing, with regard to Black Hawk Lake and Brown's Lake, that "[a]reas may be specifically designated from swimming by the use of regulatory buoys"). Other regulations restrict unauthorized placement of buoys or markers in state waters. See IAC 571-41.3(1) ("No waterway markers shall be placed on, in, or near the waters of the state unless such placement is authorized by the agency or political subdivision of the state exercising jurisdiction, with respect to regulation of boating, over the area where placed . . .") and 571-41.3(2) ("Such agency or political subdivision of the state will, prior to authorizing placement, obtain the necessary clearances of federal and state agencies exercising regulatory authority over the area concerned.").
Before June 22, 1997, the date of the accident which is the subject of this suit, the NRC had adopted a regulation establishing a restricted speed zone in an area of South Sabula Lake near the Park's boat ramp — designated in the regulation as "zone 3." As relevant herein, that regulation provided as follows:
571-40.34(462A) Speed restrictions on the Mississippi River, Jackson County, at the City of Sabula. No motorboats shall operate at a speed to exceed five miles per hour within the four zoned areas designated by buoys or other approved uniform waterway markers.
* * *
40.34(3) Zone 3. Zone 3 shall extend 200 feet into Lower Sabula Lake from the county boat ramp and 100 feet to the left of the ramp and 100 feet to the right of the ramp.
* * *
The city of Sabula shall designate the speed zones with uniform waterway markers (buoys) approved by the natural resource commission.
The record does not contain a clean copy of the IAC regulation as it existed at the time of the accident. Rather, Defendant has included a "marked up" version, as published in the Iowa Administrative Bulletin, dated December 2, 1998, which illustrates amendments to expand the no wake zone to the east and west of the boat dock. Plaintiffs have offered no objection to the accuracy of the regulatory language as recreated by Defendant and included herein.
The regulation plainly delegated to the City of Sabula, within whose city limits this area is located, the responsibility for placing speed restriction buoys marking the restricted speed zone. Apparently, despite the regulation, the City failed to put any markers in place. At some point, purportedly because of the City's failure to fulfill its regulatory duty, the Board installed speed restriction buoys to designate a reduced speed area around the boat dock consistent with the mandate of IAC 571-40.34(3). The record is unclear as to when exactly the Board took this action but it appears uncontested that the buoys were ordered prior to Plaintiff's accident and put in place shortly afterwards. At the time of the accident, Plaintiff was in an area directly out from the picnic shelter, which is approximately 200 feet east of the boat ramp. There seems to be no dispute that the accident site was outside zone 3 as it existed in 1997.
III.
Plaintiffs' suit is premised on the alleged negligence of the Board. Thus, the Court shall first address Defendant's argument that no such action may lie because there was no duty owed by Defendant to Plaintiffs at the time of the accident. See Humphries v. Trustees of the Methodist Episcopal Church of Cresco, Iowa, 566 N.W.2d 869, 871 (Iowa 1997) ("Whether a defendant owes a plaintiff a duty is a legal matter for court — not jury — determination.") (citation omitted).
A. Duty of the Board to Park visitors regarding Lake-related dangers:
Generally, a possessor of land owes a duty to use reasonable care to protect invitees against known or discoverable dangerous conditions and unreasonable risks of physical harm on the premises. Downs v. A H Constr., Ltd., 481 N.W.2d 520, 524 (Iowa 1992); Restatement (Second) of Torts, § 343 (potential liability for dangerous conditions known to or discoverable by possessor); § 314A(1)(3) (where land held open to public, possessor under duty to take reasonable action against unreasonable risk of physical harm to visitors); § 344 (where land held open to public, possessor under duty to give adequate warning to enable visitors to avoid harm by third persons). Possessor status depends primarily on the amount of control that a particular person exercises over the property. Downs, 481 N.W.2d at 524 (discussing Restatement (Second) of Torts, § 328E). Defendant contends that under the "possessor" rules it owed no duty whatsoever to Angela Winston or other Park visitors once they stepped off of Park property and into the water since the Lake is not included under the Board's management contract. In other words, Defendant maintains that while it was the possessor of the land comprising South Sabula Lake Park, it was not the possessor of the Lake and thus cannot be held liable for an accident occurring therein.
In response, Plaintiffs have cited a host of persuasive, if not authoritative, cases from other jurisdictions wherein courts have refused to construe the possessor rule so strictly. See, e.g., Orthmann v. Apple River Campground, Inc., 757 F.2d 909 (7th Cir. 1985) (Posner, J.) (finding that recreational association which owned "most of the land" on either side of river but not area where plaintiff was injured could be sued for negligence since association treated adverse property as its own as evidenced by fact that shortly after the accident the association came onto the property without asking owner's permission and removed the hazard); Dumas v. Pike County, Miss., 642 F. Supp. 131 (S.D.Miss. 1986) (finding duty where park visitor injured on non-park property since park's property line cut through base of horseshoe bend in river and there were no signs posted along the river to advise floaters that they were leaving or re-entering park property); Dunifon v. Iovino, 665 N.E.2d 51 (Ind.App. 1996) (holding owners of lake cottage subject to premises liability for injuries to guest sustained from diving into shallow water from pier owned by cottage owners on basis that cottage owners possessed and controlled the area adjacent to the pier and owned the instrumentality from which the plaintiff dove); Fuhrer v. Gearhart by the Sea, 760 P.2d 874 (Or. 1988) (finding that private hotel adjacent to ocean beach owned and regulated by state had affirmative duty to warn its guests and invitees of foreseeable unreasonable risks of physical harm; where the risk involves a dangerous condition off the premises, the trier of fact must decide the reasonableness of the failure to warn in all circumstances). See also W. Prosser, Law of Torts, § 61, at 392 (4th Ed. 1975) ("Th[e] area of invitation will of course vary with the circumstances of the case. It extends to the entrance of the property and to a safe exit after the purpose [of the visit] is concluded; and it extends to all parts of the premises to which the purpose may reasonably be expected to take him."). These cases hold that where the boundaries of possession are not clearly marked and the possessor treats neighboring property as his own or as an integral part of his business, the possessor's duty can extend beyond its precise border. See also Tarshis v. Lahaina Investment Corp., 480 F.2d 1019 (9th Cir. 1973) (hotel with beach frontage owned only that part of beach above upper reaches of wash of waves but owed duty as matter of law to warn guests of known or discoverable dangerous conditions in Pacific Ocean along its beach frontage); Perkins v. Byrnes, 269 S.W.2d 52 (Mo. 1954) (finding potential liability where resort chose not to enclose its property adjacent to the river but took no precautions against, and did not adequately warn invitees of, dangerous conditions within the water).
Defendant has directed this Court to two Iowa cases which purportedly forbid a common law finding of duty as alleged herein. See Bawek v. Kawasaki Motors Corp., 313 N.W.2d 501 (Iowa 1981); Rockafellow v. Rockwell City, 217 N.W.2d 246 (Iowa 1974). In Bawek, the plaintiff, injured in a jet ski-boating collision, claimed the county was negligent for failing to adopt or enforce rules for operating boats on a lake within its county limits. See Bawek, 313 N.W.2d at 502. The plaintiff alleged no facts other than the existence of the lake within the county on which to premise a duty. See id. at 502. The Iowa Supreme Court affirmed the dismissal of the case, finding the mere presence of the lake "not enough to support plaintiff's assertion of the existence of some common law duty to adopt water traffic regulations." Id. In Rockafellow, the Iowa Supreme Court found no duty owed by a private enterprise to a patron who fell on an adjacent publicly owned sidewalk which was coated with ice. See Rockafellow, 217 N.W.2d at 248-49; accord Humphries, 566 N.W.2d at 871. Rockafellow specifically emphasized, however, that its holding was not preclusive of liability where the hazard was not naturally caused but rather could be considered an artificial incident of the defendant's possession. See Rockafellow, 217 N.W.2d at 248 (distinguishing finding of duty in Smith v. J.C. Penney Co., 149 N.W.2d 794 (Iowa 1967) on basis that Smith involved a slip-and-fall on a sidewalk where the ice had formed "due to an artificial rather than a natural cause, the ice having accumulated from runoff from the building roof").
While Bawek and Rockafellow demonstrate that in some instances a possessor's duty can be precisely circumscribed, the Court is of the opinion that they do not mandate such a result in the case at bar. First, Plaintiffs have premised Defendant's duty on significantly more than the mere presence of the Lake. Construing the facts most favorably to Plaintiffs, they have demonstrated not only that Defendant enjoyed benefits to its reputation from the Park's proximity to the Lake but also knew of and tacitly facilitated swimmer-boater intermingling off the Park shoreline. Defendant sought and received approval to build a boat ramp extending into the Lake for the benefit of its visitors; Defendant knew that visiting boaters docked not only at the ramp but also on the Park shoreline; and Defendant knew that visitors swam in the water immediately off the Park's campsites. Further, Defendant took affirmative steps to control this intermingling to some extent by restricting swimming around the boat ramp area. These facts evidence Defendant's acknowledgment of the Lake as an integral aspect of the Park's attraction, its awareness of the potential for boater-swimmer interaction along its shoreline, and its exercise of some measure of control, gratuitous or otherwise, beyond its precise border. And, again construing the facts most favorably to Plaintiffs, a reasonable inference in the instant case is that the artificial hazard presented by boaters off the Park shoreline would not be present absent the Board's participation and encouragement as evidenced by its installation of a boat ramp and acquiescence in boaters tying up directly on the Park shoreline.
On consideration of all of the above, this Court has serious concerns as to whether it should hold as a matter of law that Defendant can draw a line in the sand, so to speak, beyond which its duty to its invitees evaporates regardless of its actions. That said, however, the Court concludes that the issue need not be definitively decided today since, even assuming Defendant's duty to Plaintiffs did extend beyond its shoreline, Plaintiffs' specific allegations of negligence — (1) failing to keep the swimming area segregated from the adjacent navigation channel; (2) failing to provide buoys or other beacons or barriers to warn boaters of the location of the swimming area; (3) failing to otherwise operate the swimming area in a fashion so as to prevent the entry of motorboats into the area designated for swimmers; and (4) failing to warn that a motorboat might enter the swimming area and subject the swimmer to potential injury — fall within the immunity shield of Iowa Code § 670.4. Accordingly, it is the latter argument to which the Court will devote the remainder of its discussion and based on which the Court will grant Defendant's summary judgment motion.
Plaintiffs' pleadings discuss Defendant's duty in relation to the "public swimming area" adjacent to the Park shoreline. While the Natural Resource Commission apparently has the authority to allow designation of certain areas as "public swimming areas," see, e.g., IAC 571-40.38, 40.39 and 40.40 (providing, with regard to Five Island Lake, Lost Island Lake and Ingham Lake, that "[a]reas may be specifically designated for swimming by the use of regulatory buoys"), there is no evidence that any such designation was authorized in South Sabula Lake. See IAC 571-40.34 (containing no similar provision). Thus, the Court will construe Plaintiffs' use of the term "public swimming area" as merely descriptive of the water adjacent to the Park where Defendant knew Park visitors often swam.
Although Defendant relies on three separate subparagraphs within section 670.4, the Court's analysis will focus on only one — section 670.4(3)'s "discretionary function exception."
B. The Discretionary Function Exception:
Iowa Code section 670.4(3) provides immunity to a municipality for:
Any claim based upon an act or omission of an officer or employee of the municipality, exercising due care, in the execution of a statute, ordinance, or regulation whether the statute, ordinance or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.
At issue in this case is the second part of the provision which immunizes acts of discretion in the performance of governmental functions or duties, whether or not the discretion is abused and whether or not negligence is alleged to have occurred. See Goodman v. City of Le Claire, 587 N.W.2d 232, 235 (Iowa 1998) (distinguishing between the two parts of the provision). Because section 670.4(3) closely parallels the language of the Federal Tort Claims Act at 28 U.S.C. § 2680(a), "relevant federal decisions interpreting the federal immunity provision are persuasive authority in [Iowa's] interpretation of the [governmental] immunity provision." Goodman, 587 N.W.2d at 236.
In Goodman, the Iowa Supreme Court adopted the two-step analysis set out by the U.S. Supreme Court in Berkovitz v. United States, 486 U.S. 531 (1988), for determining whether challenged action fell within the discretionary function exception. See Goodman, 587 N.W.2d at 238 ("The city urges us to adopt the Berkovitz two-step analysis in determining whether a challenged action falls within the discretionary function exception, and we do."). To establish application of the discretionary function exception, the court must, first, examin[e] the nature of the challenged conduct . . . [to] consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. Thus, the discretionary function will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect.
Berkovitz, 486 U.S. at 536, quoted in Goodman, 587 N.W.2d at 237; accord United States v. Gaubert, 499 U.S. 315, 324 (1991) ("[I]f the employee violates [a] mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to public policy.").
Second, even though the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress' desire to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.Berkovitz, 486 U.S. at 536-7 (citations omitted), quoted in Goodman, 587 N.W.2d at 237-38; accord Deuser v. Vecera, 139 F.3d 1190, 1193, 1195 (8th Cir. 1998).
Prior to Goodman, Iowa followed a planning/operational dichotomy to differentiate between those torts which were and were not exempt under IC § 670.4. See Keystone Elec. Mfg. v. City of Des Moines, 586 N.W.2d 340, 347 (Iowa 1998); Butler v. State, 336 N.W.2d 416, 419 (Iowa 1983); Stanley v. State, 197 N.W.2d 599, 603 (Iowa 1972). In Goodman, the Iowa Supreme Court abandoned its previous approach and adopted the two-step Berkovitz analysis, "mindful that this is a significant shift from the planning/operational bright line test [it had] been using." Goodman, 587 N.W.2d at 238. For this reason, while the pre- Goodman Iowa cases offer some insight into the factual considerations that inform a discretionary function analysis, the legal conclusions and holdings of those cases are no longer particularly instructive or reliable. Accordingly, the Court's analysis will be guided by post- Goodman Iowa case law as well as federal case law interpreting and applying Berkovitz. See Goodman, 587 N.W.2d at 236 (holding that "relevant federal decisions interpreting the federal immunity provision are persuasive authority in [Iowa's] interpretation of the [governmental] immunity provision").
Applying the first step of Berkovitz to the case at bar, the Court finds that the nature of the challenged conduct — the adequacy of the safety precautions taken with regard to the Lake — was a matter of choice for the Board in fulfilling its duty to Park visitors. Plaintiffs have directed the Court to no statute, regulation or policy which "specifically prescribes a course of action" for the Board to follow in providing for visitor safety at its Park, as that safety relates to water recreation. See C.R.S. v. United States, 11 F.3d 791, 800 (8th Cir. 1993) (emphasizing that, to take conduct out of step one, the government policy purported to be mandatory must be "specific and clear"). Thus there is no directive to which the Board was obligated to adhere. See Goodman, 587 N.W.2d at 237. In so finding, the Court notes that, in this respect, the Board is quite differently situated than the City of Sabula which arguably was obligated by regulation to take specific actions with regard to the Lake. Moreover, the Board's decision to order and/or place some buoys itself — upon the City's repeated failure to do so — is insufficient to place the Board in the City's shoes for purposes of fulfilling the City's regulatory mandate. Cf. Rockafellow, 217 N.W.2d at 249 (holding, where defendant business had no statutory duty to clear snow and ice from nearby public walks but customarily did so, that defendant could not be held negligent for its failure to do so on a particular occasion).
Plaintiffs argue that step one is not satisfied in this case because, assuming the Board's common law duty to its invitees extended to the Lake, Defendant took no action whatsoever with regard to swimmer safety and thus — whatever the parameters of the duty owed — Defendant did not adhere to it. Under Berkovitz, however, Plaintiffs' characterization of the issue misstates the relevant inquiry which, at step one, looks only to whether the governmental employee or entity ignored a specific, concrete directive about which there was no room for debate. See Deuser, 139 F.3d at 1193-95 (finding step one satisfied where, although policy compelled specific actions for processing arrestees, no specific policy existed as to whether, or how, to "terminate" arrest prior to processing); C.R.S., 11 F.3d at 796 (while directive compelled military board to develop policies concerning blood collection and management, there were "no mandatory regulations or policies directing [military] to adopt particular blood screening procedures"); Gordon v. Ottumwa Community Sch. Dist., 115 F. Supp.2d 1077 (S.D.Iowa 2000) (while Iowa statutes mandate child abuse reporting, they "do not prescribe a mandatory course of action which eliminates discretion" in making decisions as to how to investigate allegation so as to trigger the mandatory reporting obligation); Goodman, 587 N.W.2d at 239 (although law obligated city to deal with abandoned landfills, the law gave "no specific criteria to follow" to determine whether an area was a landfill).
As previously noted, this is not a situation in which a statute, regulation or policy obligated Defendant to take specific action with regard to the water. Nor is this a situation where Defendant faced a "blank canvass" in determining how to exercise its duty to Park invitees — in the water or in general. Rather, Defendant was bound, directly and indirectly, by numerous agreements with respect to management of the Park. Defendant's duty to its visitors must be considered in the context of the Board's agreements and relationships with the City, the State and the U.S. Army — all of which have some contractual, statutory and/or regulatory connection to the Park and the Lake. There is no evidence, or allegation, that Defendant violated any of its specifically prescribed duties under those agreements. Moreover, Defendant's interpretation of what those duties entailed necessarily included consideration of functions expressly reserved to other entities. Thus, to the extent that Plaintiffs' argument is based on alleged violations of nonspecifically-mandated obligations, it is significantly distinct from those where step one of the Berkovitz test was failed. See, e.g., Audio Odyssey, Ltd. v. United States, 255 F.3d 512 (8th Cir. 2001) (once loan put in liquidation the Standard Operating Procedure manual mandated certain steps and government employees did not have discretion to eliminate any of those steps entirely) ; McMichael v. United States, 856 F.2d 1026, 1033 (8th Cir. 1988) (government inspectors had no discretion in face of Defense Department policy directives that "prescribed course of action for the inspector to follow in the event of any electrical storm . . ."); Bellman v. City of Cedar Falls, 617 N.W.2d 11 (Iowa 2000) (no discretionary function exception where school manual mandated that principal determine the amount and type of supervision appropriate for field trip activity and record reasonably showed that principal failed to make any such determination or adequately delegate the duty to others); Keystone Elec. Mfg., Co. v. City of Des Moines, 586 N.W.2d 340, 344 (Iowa 1998), discussed in Goodman, 587 N.W.2d at 238-39 (explaining that Keystone would fail step one of newly-adopted Berkovitz test "because there was evidence that the city ignored one of its own criteria in its flood emergency operations").
Applying step two of the Berkovitz test, the Court finds that the element of judgment involved in the conduct at issue herein is precisely the kind that the discretionary function exception was designed to shield. Clearly, considerations of social, economic and political policy went into the development of the agreements, statutes and regulations which allocate responsibilities and obligations among city, county, state and federal entities. The Board's decisions as to how to approach off-premise dangers posed by the Lake surely involves policy considerations as well. There will always be room for disagreement regarding the adequacy of actions taken, or not taken, in fulfillment of a common law duty of reasonable care in a recreational facility. That is particularly true in a case, as here, where multiple governmental entities — local, state and federal — have some interest and some authority over the issue. While Defendant did exercise some control over the Lake, as evidenced by its restriction of swimming near the boat ramp, it is clear that the extent to which the same practice should have been done 200 or 300 or 400 feet east of the boat ramp is the kind of question that encompasses consideration of not only safety issues but conservation, economic resource allocation and political efficiency as well. See, e.g, C.R.S., 11 F.3d at 797 (finding military's judgment in choice of blood screening procedures satisfied step two "because it susceptible to a balancing of social, economic, and political policy factors . . . ranging from the need to keep costs in check given [governmental budge constraints] to the need to ensure that blood supply is safe and plentiful"); Whalen v. United States, 29 F. Supp.2d 1092, 1099 (finding decision on what precautions to take in national park susceptible to analysis of aesthetic considerations and economic concerns as "[t]o post signs and build railings everywhere in the park which had the potential for causing harm would not only defeat the aesthetic purpose of the park but would be cost prohibitive"); Kachevas, Inc. v. State, 524 N.W.2d 450 (Iowa 1994) (holding that decisions of whether, when and where to construct, or not to construct, a highway involved consideration of policy issues).
The Whalen court noted that several other courts have determined that the need for and placement of warning signs in national parks is a discretionary act, citing, in example, Blackburn v. United States, 100 F.3d 1426, 1430-31 (9th Cir. 1996); Valdez v. United States, 56 F.3d 1177, 1197-98 (9th Cir. 1995); Kiehn v. United States, 984 F.2d 1100 (10th Cir. 1993); and Zumwalt v. United States, 928 F.2d 951, 954 (10th Cir. 1991). See Whalen, 29 F. Supp.2d at 1097-98.
While the parties dispute the considerations that actually went into Defendant's approach to the Lake, that dispute is immaterial to the discretionary function review which looks, at step two, to whether the decision is susceptible to policy analysis. See C.R.S., 11 F.3d at 791 ("Even assuming the record fails to show that the defendant in fact considered public policy factors, [the Supreme Court in] Gibbered [v. United States, 499 U.S. 315, 325-26 (1991)] makes clear that the relevant inquiry is merely whether the conduct at issue is ' susceptible to policy analysis.'") (citing inter alia, Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 892 (3d Cir. 1990), for proposition that a court "need not examine the record for evidence of a conscious policy decision" because "[a]n oversight or a failure to weigh the relevant factors does not affect whether . . . the conduct is susceptible to policy analysis"). In the instant case, it is clear that the Board could have considered a wide range of policy factors in making its decisions regarding supervision of the Lake; thus, "whether or not it actually did so is immaterial . . ." C.R.S., 11 F.3d at 798.
Although the Iowa Supreme Court has not directly addressed this issue, the Court finds the Eighth Circuit's reasoning persuasive and consistent with the policies underlying legislative enactment of the discretionary function exception. Cf. Gordon, 115 F. Supp.2d at 1087 (addressing open question under Iowa's discretionary function analysis and concluding "[i]n view of the 'great weight' given by the Iowa Supreme Court to federal case law in this area, it is likely the Iowa Supreme Court would follow the lead of the Eighth Circuit . . . and the other federal case authority . . .") (citing Goodman, 587 N.W.2d at 236).
IV.
In sum, the Board's decisions as to what, if any, safety precautions to implement in relation to the Lake itself were discretionary policy decisions that are exempted from tort liability under IC § 670.4(3). As acknowledged by Plaintiffs, there is no specific mandate which directs the Board to rope off or warn swimmers away from the arguably obvious danger of boater-swimmer intermingling in the waters off its shoreline. The decision not to implement the precautions proposed by Plaintiffs is susceptible to policy analysis as any such decision encompassed consideration of political, economic, environmental, aesthetic and safety concerns. Since both prongs of the required discretionary function exception are present, the Board is immune from liability for any allegation of negligence based on its decisions not to designate a segregated swimming area or place additional buoys and signage along the Park shoreline. See Goodman, 587 N.W.2d at 240 (concluding that abuse of discretion or negligence is irrelevant once Berkovitz two-step test is satisfied).
On March 1, 2001, the Board filed a third-party complaint against the City of Sabula seeking contribution or indemnity from the City in the event of any adverse judgment. (Doc. no. 37). As today's Order disposes of the action against the Board, it consequently disposes of any indemnity/contribution issues between the Board and the City. Accordingly, that matter too shall be dismissed.
ORDER
In accordance with the opinion filed herewith, it is ORDERED:
Defendant Jackson County Conservation Board's motion for summary judgment (doc. no. 30) is GRANTED.
Done and SO ORDERED.