                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1473
                            Filed November 6, 2019


RICHARD J. HOLMAN and BECKY S. HOLMAN, individually, as father and
mother and next friend of C.L.H., a minor,
     Plaintiffs-Appellants,

vs.

DAC, INC.,
      Defendant-Appellee.
________________________________________________________________


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

Shubatt, Judge.



      The plaintiffs appeal the order granting summary judgment on their

negligence claims in favor of the defendant. AFFIRMED.



      Samuel A. Wooden, Todd K. Klapatauskas, and Natalia H. Blaskovich of

Reynolds & Kenline, L.L.P., Dubuque, for appellants.

      Thomas M. Boes, Jason C. Palmer, and Robert J. Thole of Bradshaw,

Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.



      Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.

       Did a group home providing caretaking services to an individual with

intellectual disabilities owe a duty to protect third parties from the harmful acts of

that resident? The district court determined it did not and granted summary

judgment for the group home operator on negligence claims brought by the parents

of a child who was injured by one of the home’s residents.

       The district court determined the group home operator, DAC, Inc. (DAC),

did not owe a duty to third parties because it did not have a custodial relationship

with its resident, Robert Robbins. In the alternative, and assuming the relationship

was custodial, the court determined DAC did not owe a duty to third parties

because Robbins’s residence at DAC’s Flora Home was for rehabilitative purposes

only and not to protect the public at large. We agree with the district court and

affirm its ruling.

       I. Background Facts and Proceedings.

       DAC operates Flora Home, a group home in Dubuque that provides home

and community based services (HCBS) under Medicaid’s intellectual disability

waiver program.      Flora Home provides services to its residents based on

individualized need as identified in each resident’s individual care plan. See Iowa

Admin. Code r. 441-78.41(1). These services must “be appropriate to the severity

of the member’s problems and to the member’s specific needs or disabilities.” See

id. r. 441-78.27(4)(a)(6).

       Robert Robbins is a person with an intellectual disability who moved into

Flora Home on February 16, 2015.          Robbins’s behavioral history shows he

engages in verbal aggression and has a history of physical aggression. Incidents
                                         3


of sexual abuse are mentioned in his social history; one in which a caretaker

sexually abused Robbins when he was a child and another in which Robbins

sexually abused a child.

      Robbins’s individual care plan included several restrictions. It prohibited his

access to medications, dangerous objects, and money. The plan also limited

Robbins’s alone time to eight hours in the community and four hours in the home.

The plan also limited Robbins to showering up to one-half hour per day.

      In the weeks after he moved into Flora Home, staff reported Robbins for

inappropriate conduct many times. One week after moving in, Robbins tried to

lure a staff member into a dark bathroom where he was showering, stating, “I have

sexual tendencies with you.” A few days later while alone in a room with a staff

member, Robbins turned off the light, shut the door, and demanded that she “pull

down [her] pants right now” before forcibly trying to remove her pants.

      On March 4, Sarah Bourland, the DAC coordinator of Flora Home, wrote

the following in an email to Neil Candee, Robbins’s case manager at the Iowa

Department of Human Services (DHS):

              I have gotten an incident report regarding [Robbins] closing
      the door after staff entered a room and [Robbins] asked them to take
      their pants [off] stating that he has sexual tendencies toward them.
      [Robbins] has been spoken to regarding this type of behavior and we
      will be looking at different activities in the community to help him with
      positive outlets.

      On March 14, Robbins remarked about asking female staff into empty

rooms or the garage. When a staff member told Robbins that this behavior “is not

encouraged or tolerated,” Robbins asked her, “If I were to attack you, would you

call the police?” The staff member told Robbins that she would call the police
                                         4


without hesitation if she felt threatened, to which Robbins laughed and said,

“Yea[h] I won’t mess with you!” Cathy Kelly, Robbins’s direct care team leader,

told Robbins the next day that “he cannot verbally threaten or physically threaten

or assault staff in any form” and that this behavior “will not be tolerated.” She

forbade Robbins calling female staff downstairs and urged him to call a hotline

when he felt “these urges” rather than act on them.

       Bourland emailed Candee again on March 16, stating that Robbins “has

been sexually harassing all of our female staff on a consistent basis.” Bourland

informed Candee that Robbins “has been lurking in the basement in the back

storage room with the lights off trying to pull female staff in with him.” Because of

these behaviors, Bourland stated she “would be in favor of not giving him any alone

time in the home as we do have a female consumer that may be left alone with

him.” Despite advocating for this restriction within the confines of Flora Home,

Bourland expressed that she “would like to see [Robbins] have community time”

to attend groups at the wellness center or participate in other activities, believing

that “keeping [Robbins] busy will help with some of the behaviors and the isolating

in his bedroom.” She concluded the email by stating that “hopefully with the

weather getting nicer there will be more choices for activities so that [Robbins] can

enjoy his community and occupy his free time that he is using to harass staff.”

       On March 19, Bourland, Candee, and Kelly met to discuss “recent and

continuous concerns” about Robbins. In response to his harassment of the staff,

they decided to move Robbins to a different bedroom for the staff’s safety. They

also discussed incidents in which the staff could not locate Robbins in the home

and discovered that he had left without informing a staff member. They decided
                                         5


to limit Robbins’s unsupervised time in the community to two hours per day. The

next day, DAC changed Robbins’s plan to prohibit unsupervised time in the home

and reduce his unsupervised time in the community to two hours.

       On March 25, with a staff member’s approval, Robbins left Flora Home for

community time. He returned two hours later. A short time later, Robbins left again

without staff knowledge or permission. While missing from the home, Robbins

approached C.L.H. as she walked home from school and told her he wanted to

show her something and led her to a shed at the back of a property. He then

grabbed C.L.H. by the front of her coat and warned her, “Don’t tell anyone what

I’m about to do.” Robbins intended to have sexual intercourse with C.L.H., but she

broke free and ran away. Robbins returned to Flora Home at 3:10 p.m. After

receiving a report of the incident, police arrested Robbins.

       Richard and Becky Holman, C.L.H.’s parents, petitioned against DAC. The

Holmans alleged DAC was negligent in admitting, retaining, and supervising

Robbins at Flora Home. They also all pled a fourth count of “general negligence,”

alleging DAC was negligent by: (1) allowing Robbins to leave Flora Home;

(2) failing to monitor his activities, conduct, and whereabouts; (3) failing to take

measures and safeguards to prevent Robbins from harming others; and (4) failing

to warn others of any risks Robbins posed.

       DAC moved for summary judgment on all four counts, arguing it did not owe

C.L.H. a legal duty to protect her from Robbins. The district court agreed and

granted summary judgment for DAC. The Holmans appeal.
                                         6


       II. Scope and Standard of Review.

       We review a ruling granting summary judgment for the corrections of errors

at law. See Iowa R. App. P. 6.907. In so doing, we view the evidence and every

legitimate inference it will bear in the light most favorable to the nonmoving party.

See Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d 540, 545 (Iowa 2018).

       Summary judgment is proper only if the record contains no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.

See Iowa R. of Civ. P. 1.981(3). DAC, as the moving party, has the burden of

showing the nonexistence of a genuine issue of material fact. See Banwart, 910

N.W.2d at 545. A fact is material if it might affect the outcome of the case. See

id. “A genuine issue of fact exists if reasonable minds can differ on how an issue

should be resolved.” Id. Even if the facts are undisputed, summary judgment is

improper if reasonable minds could draw different inferences from them to reach

different conclusions. See id.

       III. Discussion.

       To succeed on a negligence claim, a party must show these elements:

(1) existence of a duty, (2) a failure to exercise that duty, (3) factual cause, (4)

physical harm, and (5) harm within the scope of liability (also known as proximate

cause). See Hill v. Damm, 804 N.W.2d 95, 99 (Iowa Ct. App. 2011). Whether a

duty exists is a legal question for the court to determine. See id. The remaining

elements are fact questions for the jury to decide. See id.

       The sole issue raised on summary judgment concerns the existence of a

duty: did DAC owe a duty to protect C.L.H. from Robbins? The Holmans challenge
                                          7


the district court’s determination that DAC did not owe a legal duty to protect C.L.H.

from Robbins.1

       Historically, courts have looked at three factors in determining whether a

duty to exercise reasonable care exists: “(1) the relationship between the parties,

(2) reasonable foreseeability of harm to the person who is injured, and (3) public

policy considerations.” Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009)

(citation omitted). But in Thompson, our supreme court adopted the revised rule

set forth in the Restatement (Third) of Torts, which removed the role of

foreseeability of risk in assessing the existence of a duty. Id. Under this new rule,

“[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s

conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for

Physical and Emotional Harm § 7 (Am. Law. Inst. 2010).

       The duty to exercise reasonable care does not extend to physical and

emotional harm caused by third parties. See Restatement (Third) of Torts: Liab.

for Physical and Emotional Harm § 37 (Am. Law. Inst. 2012) (“An actor whose

conduct has not created a risk of physical or emotional harm to another has no

duty of care to the other.”). But an exception exists when one is “in a special

relationship with another.”   Id. § 41(a).    In such cases, one “owes a duty of


1 DAC notes the Holmans failed to include a statement in their brief addressing
how they preserved error for appellate review, with references to the where in the
record the issue was raised and decided, as required by Iowa Rule of Appellate
Procedure 6.903(2)(g)(1). Failure to comply with the Iowa Rules of Appellate
Procedure may lead to summary disposition of an appeal. See Hanson v. Harveys
Casino Hotel, 652 N.W.2d 841, 842 (Iowa 2002). But it is clear the issue was
raised and decided by the district court, and the scope of review is well settled.
Because the omission does not hinder our review or consideration of the issue
raised in this appeal, we will decide it on the merits. See State v. Stoen, 596
N.W.2d 504, 507 (Iowa 1999).
                                          8


reasonable care to third parties with regard to risks posed by the other that arise

within the scope of the relationship.” Id. § 41(a). The types of special relationships

that create this duty include a parent’s relationship to a dependent child, a

custodian’s relationship with those in its custody, an employer’s relationship with

employees when the harm results from the employment, and a mental-health

professional’s relationship with patients. Id. § 41(b).

       Because no Iowa cases have addressed what makes a particular

relationship custodial, the district court examined Bartunek v. State, 666 N.W.2d

435 (Neb. 2003) (cited in Estate of Gottschalk v. Pomeroy Development, Inc., 893

N.W.2d 579, 593 (Iowa 2017) (Waterman, J., concurring specially)). There, a

woman sued the State after a felon on probation assaulted her in her home,

alleging the State was negligent in its supervision of the probationer. Bartunek,

666 N.W.2d at 437. The Nebraska Supreme Court held that no special relationship

existed between a probation officer and probationer that would create a legal duty

to control the probationer’s behavior and prevent harm to others, even though the

probationer was under intensive supervision probation (ISP). Id. at 442-43.

       With the exception of the in-house curfew imposed in this case, [the
       probationer] was permitted to go about his day-to-day affairs without
       supervision, constrained only by the requirement that he seek
       permission in advance to leave home and explain for what reasons
       he would be out. While the ISP monitoring equipment provided
       notice if [the probationer] missed his curfew, it did not permit the
       State to generally monitor his movements or to locate him in the
       event that curfew was missed. [The probationer] was required to be
       at home unless permitted to leave, and [his probation officer] was
       informed if he was not, but once out of his home, [the probationer]
       was able to conduct his affairs unmonitored by the State.
                                          9

Id. at 443. “Absent the legal responsibility of custodial or round-the-clock visual

supervision, there is no logical basis for imposing an ongoing duty on a probation

officer to prevent illegal conduct by a probationer.” Id. at 442.

       Following the reasoning set forth in Bartunek, the district court determined

the relationship between Robbins and DAC was not custodial. Although DAC

placed restrictions on Robbins during his stay at Flora Home, his participation in

the program was voluntary. Robbins was not committed or under court order to

remain there. DAC did not have round-the-clock visual supervision of Robbins.

DAC could not hold Robbins against his will or force him to follow its rules any

more than the probation officer in Bartunek could force a probationer to observe

curfew.

       Even assuming a custodial relationship existed between DAC and Robbins,

the district court found no special relationship could exist based on the purpose of

the relationship. “Custodial relationships imposing a duty of care are limited to

those relationships that exist, in significant part, for the protection of others from

risks posed by the person in custody.” Restatement (Third) of Torts: Liab. for

Physical and Emotional Harm § 41 cmt. f (Am. Law. Inst. 2012). As the district

court observed, “Nowhere in the regulations does it state that HCBS programs are

required to maintain control or supervision of their consumers so as to protect the

community from a risk of harm.” Rather, HCBS providers afford “personal and

home skills training services, individual advocacy services, community skills

training services, personal environment support services, transportation, and

treatment services.” Iowa Admin. Code r. 441-78.41(1)(a). The district court found

the relationship between DAC and Robbins was for rehabilitative purposes and
                                          10

insufficient to create a duty. See id. (“A custodial relationship that exists solely for

rehabilitative purposes is insufficient to create a duty to protect others. Thus, an

inpatient clinic treating an individual with a compulsive-gambling addiction does

not have a special relationship with the patient that imposes a duty of reasonable

care to third parties.”).

       The Holmans dispute that the relationship between DAC and Robbins was

for rehabilitative purposes. They argue that DAC was responsible for Robbins’s

“health and safety” and provided “protective oversight and supervision.” Although

HCBS providers deliver services related to health, safety, and protection, DAC

provided such services for Robbins’s benefit rather than the health, safety, or

protection of the community.

       We agree with the district court. The Holmans failed to show DAC had a

duty to protect third parties from Robbins based on the relationship between them.

       The district court also noted that our supreme court has articulated public

policy reasons against holding psychiatrists liable based on decisions to release

patients from involuntary commitment. See Leonard v. State, 491 N.W.2d 508,

512 (Iowa 1992) (finding that the disservice to the public caused by holding

psychiatrists liable would far outweigh the risks posed by negligent release).

       Such a decision necessarily requires the psychiatrist to forecast the
       patient’s likely behavior toward others upon release. We are
       convinced that if that prognosis were subject to second-guessing by
       any member of the public who might later be injured by the patient,
       it could severely chill the physician’s capacity for decision making
       and ultimately threaten the integrity of our civil commitment system.

Id.   The supreme court noted that the statutory framework mental health

professionals operate in—requiring they “treat even seriously mentally impaired
                                        11


persons in the least restrictive environment medically possible”—further weighs

against finding psychiatrists liable. Id. The rationale applies equally to decisions

by HCBS providers. See Iowa Admin. Code r. 441-78.41(16) (requiring all services

under the intellectual disability waiver “be delivered in the least restrictive

environment possible”).

       Because DAC had no legal duty to protect third parties from harm by

Robbins, we affirm the order granting its motion for summary judgment.

       AFFIRMED.
