                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0123
                             Filed October 11, 2017


JANELLE HARRISON,
     Plaintiff-Appellant,

vs.

CITY OF ANKENY POLICE DEPARTMENT and MATT LNU,
      Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,

Judge.



      Plaintiff appeals an adverse grant of summary judgment in this civil suit for

negligence and tortious infliction of emotional distress. AFFIRMED.




      Nathan A. Olson and Christine E. Branstad of Branstad Law, P.L.L.C.,

Des Moines, for appellant.

      Jason C. Palmer and Thomas M. Boes of Bradshaw, Fowler, Proctor &

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



      Heard by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

         Janelle Harrison worked as a confidential informant for the Mid-Iowa

Narcotics Enforcement Task Force (MINE Task Force). During the course of an

investigation, Harrison was sexually assaulted by the target of the investigation in

the target’s home.       She brought this action against the Ankeny Police

Department, a participating agency in the MINE Task Force, and an individual

officer of the Ankeny Police Department.        She claims the defendants acted

negligently in supervising the investigation and their actions constituted tortious

infliction of emotional distress. The district court granted summary judgment to

the defendants on the following grounds: (1) Harrison’s claims were barred by

statutory immunities; (2) the defendants did not owe Harrison a duty due to the

public duty doctrine; (3) Harrison’s assailant’s conduct was unforeseeable as a

matter of law; (4) Harrison’s claim was barred by the assumption of the risk

doctrine; and (5) Harrison’s claim for tortious interference failed as a matter of

law.

                                          I.

         We review the district court’s grant of summary judgment for correction of

errors at law. Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 500 (Iowa

2013).    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. Id. at 501. An issue of fact is material if “the dispute is over facts

that might affect the outcome of the suit, given the applicable law.” Weddum v.

Davenport Cmty. Sch. Dist., 750 N.W.2d 114, 117 (Iowa 2008). “An issue of fact

is ‘genuine’ if the evidence is such that a reasonable finder of fact could return a
                                         3

verdict or decision for the nonmoving party.” Huck v. Wyeth, Inc., 850 N.W.2d

353, 362 (Iowa 2014). “We can resolve a matter on summary judgment if the

record reveals a conflict concerning only the legal consequences of undisputed

facts.” Boelman, 826 N.W.2d at 501. The burden is on the moving party to show

it is entitled to judgment as a matter of law. Sallee v. Stewart, 827 N.W.2d 128,

133 (Iowa 2013).

      “Even if facts are undisputed, summary judgment is not proper if

reasonable minds could draw from them different inferences and reach different

conclusions.” Walker Shoe Store, Inc. v. Howard’s Hobby Shop, 327 N.W.2d

725, 728 (Iowa 1982). “The party resisting the motion for summary judgment

should be afforded every legitimate inference that can reasonably be deduced

from the evidence.” Rock v. Warhank, 757 N.W.2d 670, 673 (Iowa 2008). We

view the evidence in the light most favorable to the nonmoving party. Clinkscales

v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005). However, the resisting

party, rather than resting upon the pleadings, “must set forth specific facts

showing the existence of a genuine issue for trial.” Cemen Tech, Inc. v. Three D

Indus., L.L.C., 753 N.W.2d 1, 5 (Iowa 2008).

                                        II.

      Harrison’s first claim of error is the district court impermissibly weighed the

evidence and resolved disputed issues of fact in resolving the motion for

summary judgment. It is well established that “a court deciding a motion for

summary judgment must not weigh the evidence, but rather simply inquire

whether a reasonable jury faced with the evidence presented could return a

verdict for the nonmoving party.” Clinkscales, 697 N.W.2d at 841. Harrison
                                        4


identifies several fact disputes the district court purportedly impermissibly

resolved.   We need not decide whether the district court impermissibly resolved

the identified disputes in deciding the motion for summary judgment, however,

because the purported disputed issues of fact are not material to the resolution of

this case. See Weddum, 750 N.W.2d at 117 (defining “material”).

      “Iowa Code chapter 670 establishes the parameters of a municipality’s

liability for the negligent acts or omissions of its officers and employees.”

Kershner v. City of Burlington, 618 N.W.2d 340, 342–43 (Iowa 2000). A city is

subject to liability unless one of the exemptions listed in section 670.4 (2014)

applies. See id. Iowa Code section 670.4(1)(j) provides immunity for

      [a]ny 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.

The district court concluded the defendants were immune from liability under this

provision because the sexual assault occurred during the course of an

investigation, the damage was caused by a third party—the target of the

investigation—and the target was not under the supervision or control of the

municipality. We agree.

      The leading case is Hameed v. Brown, 530 N.W.2d 703 (Iowa 1995). In

that case, Fort Dodge police officers responded to repeated calls related to a

domestic abuser, Roby, harassing his ex-girlfriend, Hameed. See Hameed, 530

N.W.2d at 705. One responding officer served Roby with an arrest warrant at his

mother’s home but let him go upstairs to retrieve clothing. Id. Roby escaped
                                          5

through a second-story bedroom window. Id. at 706. Several hours later, Roby

approached Hameed at a local bar and stabbed her several times in the back.

Id. She sued Fort Dodge, among others, for negligence in failing to arrest Roby.

The city argued it was immune under the version of section 670.4(1)(j) then in

effect. “The question boil[ed] down to whether Roby was under the supervision

or control of the city when he stabbed Hameed.”             Id. at 707.    The court

concluded, “[L]iability can attach to the municipality only if the third party caused

damage (1) while the municipality was overseeing the third party’s conduct with

the power to direct and decide the implementation of the third party’s intentions,

or (2) while the municipality was exercising restraining influence over the third

party.” Id. at 707. The court concluded Roby was not under the supervision or

control of the city at the time he stabbed Hameed. See id. “He was out of

custody.” Id.

       This case is materially indistinguishable. The summary judgment record

shows Harrison was engaged by the MINE Task Force to investigate a particular

target. The target was at liberty. The target of the investigation was a third party

not employed by the municipality. The assault occurred in the target’s home. It

is not disputed the municipality was not overseeing the target’s conduct. It is not

disputed the municipality had no power to direct and decide the implementation

of the target’s intentions.    It is also not disputed the municipality was not

exercising any restraining influence over the target. In short, it is not disputed the

target of the investigation was not under the control or supervision of the

municipality. The statutory immunity as interpreted in Hameed bars Harrison’s

claims.
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       Harrison resists this conclusion, contending Hameed was limited by

Messerschmidt v. City of Sioux City, 654 N.W.2d 879 (Iowa 2002). In that case,

a municipal employee moved a road barricade preventing cars from moving into

a particular area during a citywide celebration. See Messerschmidt, 654 N.W.2d

at 880. A drunk driver drove into the area, injuring Messerschmidt. See id.

Messerschmidt sued the city, which claimed immunity under section 670.4(1)(j).

See id. at 883. Our supreme court concluded the city’s “reliance on [section

670.4(1)(j)] immunity [was] misplaced.” Id. at 884. The court held moving a road

barricade was not one of the acts or omissions covered by the statute.

Specifically, moving the road barricade did not fall within the meaning of

“otherwise”:

       Here, the specific words are “issuance of permit,” “inspection,” and
       “investigation.” These words contemplate actions by the city such
       as the inspection of buildings and elevators, food inspection, and
       issuance of permits.          The words “issuance of permit,”
       “investigation,” and “inspection” are followed by the more generic
       phrase, “or otherwise.”
              The term “otherwise” is not so broad as to include every
       municipality action or omission. Pursuant to the doctrine of
       ejusdem generis, “otherwise” is intended to define the preceding
       terms with some flexibility.         This flexibility is intended to
       accommodate for similar municipality actions not within the express
       contemplation of the legislature when it enacted this immunity
       provision. “Otherwise” includes only those actions of a municipality
       similar to an inspection, investigation, or issuance of a permit.
       Here, the city did not inspect, investigate, or issue a permit.

Id. (internal citation omitted).

       Messerschmidt is inapplicable here. As set forth above, that case decided

only that the movement of a road barricade did not fall within the definition of

“otherwise” within the meaning of the statute. In other words, the movement of a

road barricade was not a covered act or omission within the meaning of the
                                         7


statute. This case presents no such ambiguity. The express language of the

statute provides immunity for any act or omission related to an “investigation.” It

is not disputed the assault at issue in this case was committed by a third party

during the course of a police investigation. The statutory immunity is expressly

applicable to the facts and circumstances of this case.        See Hameed, 530

N.W.2d at 707.

      We conclude the district court did not err in granting the defendants’

motion for summary judgment on the ground the plaintiff’s claims are barred by

the immunity set forth in Iowa Code section 670.4(1)(j).       Because we have

resolved the claim on this ground, we need not address the parties’ remaining

arguments.

                                        III.

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.

      Tabor, J., concurs; Danilson, C.J., concurs specially.
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DANILSON, Chief Judge (concurring specially).

       I write separately because I agree with the result but for different reasons.

I believe the relationship between a law enforcement officer or a department and

a confidential informant may trigger a special duty to act reasonably to protect

the confidential informant.        The “general rule” is stated in Sankey v.

Richenberger, 456 N.W.2d 206, 209 (Iowa 1990):

              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, or
              (b) a special relation exists between the actor and the other
       which gives to the other a right to protection.

(Quoting Restatement (Second) of Torts § 315 (1965)); accord Smith v. City of

Bayard, 625 N.W.2d 736, 737 (Iowa 2001); Kolbe v. State, 625 N.W.2d 721, 728

(Iowa 2001); Leonard v. State, 491 N.W.2d 508, 510-11 (Iowa 1992).

       But here, even if defendants owed a special duty to Harrison, she could

not justifiably rely upon their protection under these facts. Harrison knew no

officer was present to lend immediate aid, she was not wearing a listening device

so the officers could listen to her conversations with the third person, nor did the

defendants prearrange the meeting between Harrison and the third party. See

Cuffy v. City of New York, 505 N.E.2d 937, 940 (N.Y. 1987) (reciting the

elements of a “special relationship” including the requirement of a “party’s

justifiable reliance” on the [government’s] “affirmative undertaking”).
