                 IN THE SUPREME COURT OF IOWA
                               No. 16–1896

                            Filed June 8, 2018


KAITLYN JOHNSON,

      Appellant,

vs.

HUMBOLDT COUNTY, IOWA,

      Appellee.



      Appeal from the Iowa District Court for Humboldt County, Kurt J.

Stoebe, Judge.



      A passenger who was injured in a single-vehicle accident that

occurred when the vehicle left a county highway, entered a ditch, and

struck a concrete embankment appeals the district court’s grant of

summary judgment to the county. AFFIRMED.



      Conrad F. Meis of Buchanan, Bibler, Gabor, and Meis, Algona, and

Michael K. Bush and John C. Bush of Bush, Motto, Creen, Koury &

Halligan, P.L.C., Davenport, for appellant.



      Rene Charles Lapierre and Ryland Deinert of Klass Law Firm, L.L.P.,

Sioux City, for appellee.
                                   2

      Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, Des Moines,

and Jessica A. Zupp, Denison, for amicus curiae Iowa Association of

Justice.

      Thomas M. Boes and Catherine M. Lucas of Bradshaw, Fowler,

Proctor & Fairgrave, P.C., Des Moines, for amici curiae Iowa League of

Cities, Iowa Defense Counsel Association, Iowa State Association of

County Supervisors, and Iowa Municipal Utilities Association.
                                     3

MANSFIELD, Justice.

      I. Introduction.

      This case involves a single-vehicle accident that occurred when a

vehicle went off a county road and into a ditch, then struck a concrete

embankment in the ditch. The embankment had been constructed by a

private landowner. It was on the private landowner’s land, although the

county had a right-of-way easement where part of the embankment was

located.

      A passenger in the vehicle sustained serious injuries. She sued the

county and the current landowner seeking recovery.          She alleged the

county should have caused the removal of the concrete embankment from

the ditch. The district court denied summary judgment to the landowner

but granted it to the county based on the public-duty doctrine.          The

plaintiff appealed.

      On our review, we are guided by our recent decision in Estate of

McFarlin v. State, 881 N.W.2d 51 (Iowa 2016). There we held that the

public-duty doctrine barred a claim against the State of Iowa relating to

the placement of and lack of warnings on a dredge pipe in a recreational

lake owned and managed by the state. Id. at 58. A boater struck the

dredge pipe, resulting in fatal injuries to one of the boat’s passengers. Id.

at 53. Estate of McFarlin reaffirmed our earlier public-duty precedents and

also held that the doctrine remains good law under the Restatement (Third)

of Torts: Liability for Physical and Emotional Harm. Id. at 60. Based on

Estate of McFarlin, we affirm the district court’s grant of summary

judgment.

      II. Facts and Procedural Background.

      At approximately 2:30 a.m. on March 3, 2013, David Helmers and

Kaitlyn Johnson, who at that time was Helmers’s spouse, were traveling
                                        4

on a county road in Humboldt County in a Chevy Silverado pickup.

Helmers was driving. He fell asleep at the wheel, and the vehicle crossed

the other side of the road and then veered into a roadside ditch. Helmers

never applied the brakes, and the vehicle continued in the ditch for over

200 feet before it struck a concrete embankment in the ditch. Johnson

suffered serious injuries in the accident, including paralysis and brain

damage. The car was traveling approximately 58 miles per hour when it

hit the embankment.

      The embankment had been built by Donald Becker and his father-

in-law in 1972. It was part of a cattle grid that allowed people and their

vehicles, but not livestock, to cross the ditch at that spot.                The

embankment and the grid were entirely on the Beckers’ private property,

although most of the embankment fell within the county’s right-of-way

easement relating to the road.

      On December 31, 2014, Johnson filed suit against Humboldt

County and the current landowners, Donald and Sandra Becker. Johnson

alleged that the County was negligent in failing to cause the removal of the

embankment.       She relied on general negligence principles, premises

liability, public nuisance, and Iowa Code sections 670.2 and 318.4. See

Iowa Code § 670.2 (2013) (“Except as otherwise provided in this chapter,

every municipality is subject to liability for its torts and those of its officers

and employees, acting within the scope of their employment or duties . . .

.”); id. § 318.4 (“The highway authority shall cause all obstructions in a

highway right-of-way under its jurisdiction to be removed.”).

      An initial summary judgment motion filed by the County was

denied. Later, the County filed a second motion for summary judgment,

specifically raising the public-duty doctrine.
                                     5

      Following a hearing, the district court granted the County’s second

motion on September 23.      The court reasoned that Johnson’s claims

against the County arising out of this incident were barred by the public-

duty doctrine, which does not allow individuals to sue the government for

breach of a duty owed to the public at large. As the court explained,

             The Iowa Supreme Court has often found, consistent
      with the common law public duty doctrine, that a breach of
      duty owed to the public at large is not actionable unless the
      plaintiff can establish, based on the unique or particular facts
      of the case, a special relationship between the municipality
      and the injured plaintiff consistent with the rules of
      Restatement (Second) of Torts, Section 315. . . . Further,
      given the State’s adoption of the Restatement (Third), the Iowa
      Supreme Court recently held ‘the public-duty doctrine
      remains good law after our adoption of the Restatement
      (Third) of Torts.’ Estate of McFarlin v. State, 881 N.W.2d 51,
      60 (Iowa 2016). Therefore, the public duty doctrine remains
      good law in Iowa, despite the State’s adoption of the
      Restatement (Third).

             The pivotal issue in this case is whether the duty owed
      by Humboldt as the highway authority to remove obstructions
      in highway right-of-ways, a duty owed to the public at large,
      could also be construed as a duty to Johnson as a member of
      a special identifiable class. Based on a plain language reading
      of Section 318.4, it is clear that the statute does not identify
      Johnson as a member of a special protected class. Simply
      stated, Johnson did not have a common law special
      relationship with Humboldt that could support a finding of
      duty. . . .

            ....

             Section 318.4 charges Humboldt with a duty to protect
      the general users of Iowa roadways from obstructions in the
      highway right-of-ways. Since the Iowa Supreme Court has
      clearly found motorists to be a general class that is not
      afforded a special relationship with the State, all of Johnson’s
      allegations stemming from Humboldt’s failure to perform its
      duties under Section 318.4 are not actionable. Therefore,
      Humboldt’s Motion for Summary Judgment is granted.

      Johnson appealed, and we retained the appeal.
                                       6

      III. Standard of Review.

      “We review a district court’s ruling on summary judgment for

correction of errors at law.” Estate of McFarlin, 881 N.W.2d at 56 (quoting

Thomas v. Gavin, 838 N.W.2d 518, 521 (Iowa 2013)). “The evidence is

viewed in the light most favorable to the nonmoving party.” Id. (quoting

Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa 2012)).

      IV. Analysis.

      A. The Public-Duty Doctrine. “Under the public-duty doctrine, ‘if

a duty is owed to the public generally, there is no liability to an individual

member of that group.’ ” Id. at 58 (quoting Kolbe v. State, 625 N.W.2d 721,

729 (Iowa 2001)). “[A] breach of duty owed to the public at large is not

actionable unless the plaintiff can establish, based on the unique or

particular facts   of   the   case,   a special   relationship   between   the

[governmental entity] and the injured plaintiff . . . .” Kolbe, 625 N.W.2d at

729. We have applied this doctrine on various occasions to preclude tort

claims by individuals against the government.

      In Kolbe, we held that the doctrine precluded a negligence claim

against the state for its issuance of a driver’s license to a driver with a

congenital visual impairment. Id. at 729–30. The driver struck a bicyclist,

severely injuring him. Id. at 724. We rejected the bicyclist’s assertion that

the state owed him a duty as a member of a “particularized class—rightful

users of the Iowa roads.” Id. at 728, 729–30. We found instead that the

licensing provisions in chapter 321 of the Iowa Code were for the benefit

of the public at large and thus the plaintiff could not “avoid the preclusive

effect of the public duty doctrine by claiming membership in a special,

identifiable group for whose benefit the statutes were enacted.” Id. at 729–

30.
                                     7

      In Summy v. City of Des Moines, we again examined the public-duty

doctrine, this time finding that it did not apply based on the facts of that

case. 708 N.W.2d 333, 344 (Iowa 2006), overruled on other grounds by

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 & n.3 (Iowa 2016). In

Summy, a golfer who was golfing on a city-owned golf course was struck

by an errant golf ball. Id. at 335. He challenged the design of the golf

course, alleging there was an unreasonable danger that a golfer playing

the eighteenth hole would be struck by tee shots from the first hole. Id. at

336. We held the public-duty doctrine did not apply because the duty at

issue “was one owed to invitees on the golf course, not to the public at

large.” Id. at 344.

      In Raas v. State, we considered the public-duty doctrine in the

context of claims brought by two individuals who were injured by inmates

who had escaped from the Iowa Medical and Classification Center in

Oakdale. 729 N.W.2d 444, 446 (Iowa 2007). One of the individuals was

attacked while in the parking lot of the facility; the other while fishing in

the Iowa River some distance away. Id. at 446. We found that the plaintiff

who was “lawfully in the parking lot of the Oakdale Facility . . . that day

during the regularly scheduled visiting hours” had status “as an invitee,”

so the public-duty doctrine did not apply. Id. at 450. The other plaintiff’s

claim, however, was subject to the public-duty doctrine, as he was “only a

member of the public at large.” Id. We emphasized that the public-duty

doctrine was “alive and well in Iowa.” Id. at 449.

      Most recently, in Estate of McFarlin, we again reexamined and

applied the doctrine. 881 N.W.2d at 64 (affirming the district court’s grant

of summary judgment based on the doctrine). We found that the plaintiffs’

claims arising out of a boating accident in which a boat struck a

submerged dredge pipe on a state-owned and state-managed lake were
                                      8

precluded by the doctrine. Id. at 53, 64. We found Kolbe rather than

Summy to be the relevant precedent:

      Golfers pay to use the Waveland Golf Course as business
      invitees.   The city was both landowner and proprietor
      operating Waveland as a business for paying customers.
      Golfers proceed through the course in small groups, hole-by-
      hole in sequence. Members of the general public are not
      allowed to wander freely around Waveland while golfers are
      playing. By contrast, Storm Lake is open to the public free of
      charge. Boaters may traverse the lake freely and come and go
      as they please, like motorists using public roads. . . .

             This case is more like Kolbe than Summy. In Kolbe, we
      applied the public-duty doctrine to affirm summary judgment
      for the state, dismissing tort claims alleging the department
      of transportation (DOT) negligently issued a drivers’ license to
      a visually impaired driver . . . . Five days after Schulte’s
      license was reissued, he was driving on a county road and
      struck a bicyclist, Charles Kolbe, inflicting severe injuries.
      Kolbe sued the State, alleging that it “negligently and without
      adequate investigation issued driving privileges” to Schulte
      despite knowledge of his impaired vision. Kolbe claimed Iowa
      Code chapter 321 created a particularized class—“rightful
      users of the Iowa roads.” The district court granted the state’s
      motion for summary judgment. In affirming the summary
      judgment on the public-duty doctrine, we held the requisite
      special relationship was lacking because “the licensing
      provisions in Iowa Code chapter 321, and more specifically
      Iowa Code section 321.177(7), are for the benefit of the public
      at large.” We reach the same conclusion as to the DNR’s role
      at Storm Lake. Boaters at Storm Lake, like motorists driving
      on Iowa roadways, are members of the general public, not a
      special class of “rightful users of the lake” for purposes of the
      public-duty doctrine.

Id. at 60–61 (footnote omitted) (citations omitted) (quoting Kolbe, 625

N.W.2d at 724–25, 728, 729). In short, boaters using a lake that is open

to the public for recreational purposes would be considered members of

the public at large, not a special class.

      In light of these precedents, the public-duty doctrine appears to

control this case. Any duty to remove obstructions from the right-of-way

corridor adjacent to the highway would be a duty owed to all users of this
                                            9

public road. It would thus be a public duty. See id. at 61–62; Kolbe, 625

N.W.2d at 728–30. Just as boaters on Storm Lake are members of the

general public, so are persons who use the county road. See Estate of

McFarlin, 881 N.W.2d at 61–62. Furthermore, Iowa Code section 318.4

does not alter the analysis. Johnson does not claim she has a private right

of action under this law. Cf. id. at 58 (rejecting a private right of action

under statutes relating to state-owned bodies of water and dredging);

Kolbe, 625 N.W.2d at 727 (finding no private right of action under driver

licensing statutes and regulations). Thus, section 318.4 would not affect

the public-duty determination unless it was enacted for the benefit of a

“particularized class.” Cf. Kolbe, 625 N.W.2d at 728–29. Users of the

public roads, however, are not such a class. Id. at 729–30. 1

       Nevertheless, Johnson argues that the public-duty doctrine does not

apply here for several reasons. We will now turn to these contentions.

       B. The Public-Duty Doctrine and the Restatement (Third) of

Torts.    Initially, Johnson argues that the public-duty doctrine did not

survive our adoption of the Restatement (Third) of Torts: Liability for

Physical and Emotional Harm.                There are two problems with this

argument: we have said otherwise, and the Restatement (Third) has said

otherwise.

       In Estate of McFarlin, we specifically addressed whether the public-

duty doctrine retains its previous vitality under the Restatement (Third).

881 N.W.2d at 59–60.           We determined that “the public-duty doctrine




       1In  Kolbe, we specifically distinguished Adam v. State, 380 N.W.2d 716 (Iowa
1986), because “the statute at issue in Adam was not for the benefit of the general public
but rather ‘was for the benefit of the class to which plaintiffs belong[ed]—producers doing
business with grain dealers.’ ” Kolbe, 625 N.W.2d at 729 (alteration in original) (quoting
Adam, 380 N.W.2d at 723).
                                    10

remains good law after our adoption of sections of the Restatement (Third)

of Torts.” Id. at 60.

      As we pointed out in Estate of McFarlin, the reporters’ note to section

7 of Restatement (Third)—the general duty provision—recognizes the

public-duty doctrine. Id. at 59–60 (quoting the note); see Restatement

(Third) of Torts: Liab. for Physical & Emotional Harm § 7 reporters’ note

cmt. g, at 93–94 (Am. Law Inst. 2010) [hereinafter Restatement (Third)].

This is reaffirmed in a comment to section 37 of the Restatement (Third):

      The limitless potential liability that might be visited on
      government entities if affirmative duties were imposed on
      them for every undertaking has influenced courts in limiting
      the existence and scope of affirmative duties to which
      government entities are subject. Some courts insist on a
      “special relationship” between the plaintiff and a public entity
      that distinguishes the plaintiff from the public at large before
      imposing an affirmative duty.

Restatement (Third) § 37 cmt. i, at 7 (Am. Law Inst. 2012).

      Johnson argues that Estate of McFarlin failed to consider the fact

that Restatement (Third) section 14 has superseded Restatement (Second)
of Torts section 288. The latter section was entitled, “When Standard of

Conduct Defined by Legislation or Regulation Will Not Be Adopted,” and

provided in part,

      The court will not adopt as the standard of conduct of a
      reasonable man the requirements of a legislative enactment
      or an administrative regulation whose purpose is found to be
      exclusively

             ....

             (b) to secure to individuals the enjoyment of rights or
      privileges to which they are entitled only as members of the
      public . . . .

Restatement (Second) of Torts § 288, at 29 (Am. Law Inst. 1965).
                                     11

       Restatement (Third) section 14 is entitled “Statutory Violations as

Negligence Per Se,” and states,

              An actor is negligent if, without excuse, the actor
       violates a statute that is designed to protect against the type
       of accident the actor’s conduct causes, and if the accident
       victim is within the class of persons the statute is designed to
       protect.

Restatement (Third) § 14, at 154. Thus, Johnson insists that Restatement

(Third) section 14 no longer openly embraces the public-duty doctrine.

       Yet Johnson overlooks a key point. A goal of the Restatement (Third)

was to clear away prior confusion between the duty determination and the

negligence determination. See Restatement (Third) § 7 cmt. i, at 81–82.

Section 288 of the Restatement (Second) conflated the two, by setting forth

the public-duty rule within a negligence provision.        See Restatement

(Second) of Torts § 288(b); see also Wilson v. Nepstad, 282 N.W.2d 664,

671–72 (Iowa 1979) (applying Restatement (Second) of Torts § 288(b) to

find the public-duty rule did not apply). Section 14 of Restatement (Third),

on the other hand, is a negligence provision only, dealing with the question
whether a statutory violation constitutes negligence per se.              See

Restatement (Third) § 14, at 154. Thus, comment i to section 14 indicates

that the section “primarily applies when the issue is whether the actor’s

conduct is negligent—whether it lacks reasonable care.” See id. cmt i, at

160.   It does recommend the court “give appropriate weight” before it

applies a no-duty rule when “the defendant has violated a statute that

seeks to protect the plaintiff against a certain type of accident.” Id. But

this doesn’t vitiate the public-duty rule where the statute as here protects

the public generally.

       On a related note, Johnson also directs us to the Restatement

(Third) section 38, which provides, “When a statute requires an actor to
                                      12

act for the protection of another, the court may rely on the statute to decide

that an affirmative duty exists and to determine the scope of the duty.”

Restatement (Third) § 38, at 20–21.

      Consider, though, the example provided in Illustration 2 to section

38, which describes a statute that “requires all public schools to test all

students for scoliosis, an abnormal curvature of the spine.” Id. cmt. c,

illus. 2, at 22. A student is not tested, and as a result she suffers enhanced

harm due to a delayed diagnosis. Id. The analogy is imperfect, because

in that example the potential duty would be owed only to students

attending a particular school, whereas here the duty would be owed to all

users of a public road. Nonetheless, the Restatement concludes that “[t]he

legislature’s concern about preserving school districts’ financial resources

counsels against the court finding that [the school] had an affirmative duty

to [the student] with regard to scoliosis testing.” Id. at 22–23. In other

words, one of the illustrations to Restatement (Third) section 38 actually

bolsters Estate of McFarlin’s conclusion that the public-duty doctrine

“remains good law.” 881 N.W.2d at 60.

      Finally, Johnson cites Restatement (Third) section 40(b)(3).       This

provision addresses the special relationship created when “a business or

other possessor of land . . . holds its premises open to the public with

those who are lawfully on the premises.” Restatement (Third) § 40(b)(3),

at 39. One problem with Johnson’s position is that the County did not

possess the land on which the concrete embankment was located. The

County was not “a person who occupies the land and controls it.” Id.

§ 49(a), at 224. The land in question belonged to the Beckers, and the

County had only an easement.

      C. The Public-Duty Doctrine and the Iowa Municipal Tort

Claims Act.     Johnson next contends the public-duty doctrine is not
                                      13

available for claims brought under the Iowa Municipal Tort Claims Act,

Iowa Code chapter 670.        She maintains that because section 670.2

provides “every municipality is subject to liability for its torts,” the County

may not assert the public-duty doctrine to restrict its liability. See Iowa

Code § 670.2.

      However, Johnson erroneously equates immunity (as waived by the

Iowa Municipal Claims Act) with the common law public-duty doctrine.

See Estate of McFarlin, 881 N.W.2d at 59. We have said, “Unlike immunity,

which protects a municipality from liability for breach of an otherwise

enforceable duty to the plaintiff, the public duty rule asks whether there

was any enforceable duty to the plaintiff in the first place.” Id. (quoting

Raas, 729 N.W.2d at 448).         Because “[t]he public duty rule is not

technically grounded in government immunity,” the Iowa Municipal Tort

Claims Act and the public-duty doctrine may coexist without conflict. See

Raas, 729 N.W.2d at 448 (quoting 18 Eugene McQuillin, McQuillin on

Municipal Corporations § 53.04.25 (3d ed. 2006)).

      As Johnson concedes, we have effectively ruled on this issue. See

Kolbe, 625 N.W.2d at 730. We determined in Kolbe that the public-duty

doctrine was still viable, despite enactment of the Iowa Tort Claims Act,

which partially abrogates the state’s sovereign immunity in the same

manner as the Municipal Tort Claims Act does for political subdivisions of

the state. See id. at 725. We discussed the doctrine specifically in light of

the Iowa Tort Claims Act and ultimately applied the doctrine to bar the

plaintiff’s claims. Id. at 729–30.

      After Kolbe, we readdressed this issue in Raas, 729 N.W.2d at 449.

We found “[o]ur cases decided after the adoption of the State Tort Claims

Act continue[d] to recognize the public-duty doctrine, and . . . they . . .

clearly upheld the continued validity of the doctrine.” Raas, 729 N.W.2d
                                     14

at 448–49 (listing cases). We concluded that despite the enactment of a

tort claims statute that partially abrogated sovereign immunity—just as

the Iowa Municipal Torts Claims Act does—the public-duty doctrine was

nevertheless “alive and well in Iowa.” See id. at 449.

      Lastly, in Estate of McFarlin, we reaffirmed our rejection in Raas of

the “argument that we should abandon the public-duty doctrine, as some

other states have done, because the doctrine was supplanted by the

enactment of tort claims statutes that partially abrogate sovereign

immunity.” Estate of McFarlin, 881 N.W.2d at 59.

      D. Wilson v. Nepstad. Johnson also invokes a 1979 decision of

this court—Wilson v. Nepstad, 282 N.W.2d 664. That case arose out of a

fire in an apartment building that resulted in deaths and injuries. Id. at

666. The plaintiffs sued, inter alia, the City of Des Moines for negligently

inspecting and permitting the building.      Id.   The city argued that “the

applicable state and municipal inspection laws are designed to protect the

public generally and do not create a duty of care to these individual

plaintiffs.” Id. at 667. A majority of the court signaled a potential shift

away from the public-duty doctrine, indicating that

      a municipality is liable for tortious commissions and
      omissions when authority and control over a particular
      activity has been delegated to it by statute and breach of that
      duty involves a foreseeable risk of injury to an identifiable
      class to which the victim belongs.

Id. at 671. Regardless, in that case, the court found that the public-duty

doctrine did not apply because the ordinances and statutes “were designed

for the protection of a special, identifiable group of persons[,] lawful

occupants of multiple dwellings,” and “not members of the public

generally.” Id. at 672. On this basis, the court reversed the district court’s

dismissal of the city from the case. Id. at 674.
                                         15

       Only five members of the court joined the majority, however. Three

justices specially concurred on the basis that the statutes and ordinances

themselves were not in the record. Id. at 674 (McCormick, J., specially

concurring). The special concurrence explained that such statutes and

ordinances normally do not establish a legal duty on the part of the

municipality. Id. at 674–75.

       Wilson was decided nearly four decades ago. Subsequent decisions

of our court like Raas and Estate of McFarlin have confirmed that the

public-duty doctrine is “alive and well in Iowa.” Estate of McFarlin, 881

N.W.2d at 59 (quoting Raas, 729 N.W.2d at 449).

       E. An Exception to the Public-Duty Doctrine?                   Johnson also

argues that even if the public-duty doctrine remains alive and well, it

should not apply in this case because of the “grave danger” presented by

this matter of “highway safety.” But the public-duty doctrine applies even

when highway safety is involved. See Kolbe, 625 N.W.2d at 728–30. 2

       One can also debate the degree of danger here.                   The County

presented undisputed evidence that there had been no complaints,

concerns, or requests for action during the forty years the concrete

embankment had been in place.             The embankment was in neither the

traveled portion of the right-of-way nor the shoulder.              See Iowa Code

       2Johnson    cites Harryman v. Hayles and Symmonds v. Chicago, Milwaukee, St.
Paul & Pacific Railroad. Harryman, 257 N.W.2d 631 (Iowa 1977), overruled on other
grounds by Miller v. Boone Cnty. Hosp., 394 N.W.2d 776, 781 (Iowa 1986), abrogated by
Estate of McFarlin, 881 N.W.2d at 61 n.6; Symmonds, 242 N.W.2d 262 (Iowa 1976),
abrogated by Estate of McFarlin, 881 N.W.2d at 61 n.6. In Harryman, this court found
that a county owed a duty to a passenger in a vehicle who sustained serious and
permanent injuries when the vehicle overturned after striking a washed-out portion of a
county road. 257 N.W.2d at 633, 638. “This duty runs to all those rightfully using the
roads.” Id. at 638. In Symmonds, which arose out of a fatal automobile–train collision
at an unguarded crossing on a county road, this court held a county owed a duty to
install a stop sign at this “particularly hazardous crossing.” 242 N.W.2d at 265. As we
explained in Estate of McFarlin, these cases have been superseded by more recent
authority, especially Kolbe. See Estate of McFarlin, 881 N.W.2d at 61 n.6.
                                     16

§ 318.1(6). It is also undisputed that the driver of the Silverado fell asleep

at the wheel, drove across the other side of the highway, kept going off the

highway into a ditch, and then traveled without applying the brakes for

over 200 feet before striking the embankment. When a driver falls asleep

and loses control of the vehicle, unfortunately many bad things can

happen. These include a head-on collision with oncoming traffic; other

vehicle collisions; or a collision with a road sign, a light standard, a guard

rail, or other object. See, e.g., State v. Butler, 706 N.W.2d 1, 2 (Iowa 2005)

(driver “probably fell asleep at the wheel,” “crossed the centerline of the

highway and struck five motorcyclists, killing three and seriously injuring

two”). Regardless, this is an argument about foreseeability, not duty, and

it no longer holds water under the Restatement (Third) of Torts.          See

Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009).

      Johnson also argues that Estate of McFarlin is distinguishable

because the state there did not have control of the dredge pipe.         881

N.W.2d at 53–54. While there are some factual distinctions between the

two cases, they do not on the whole cut in favor of Johnson. In Estate of

McFarlin, the state actually owned and managed the lake. Id. While it did

not operate the dredge pipe, it actually permitted the dredging and where

it would occur on an annual basis. Id. at 54. There had been prior reports

to the state of boaters striking the dredge. Id. The state also placed buoys

on the lake, although not the ones specifically warning about the dredge

pipe. Id. Here, the concrete embankment was on private property and

had been there without incident for forty years. And while the County

could have ordered the removal of the embankment, the state certainly

had the same degree of “control” over the dredge pipe in Estate of McFarlin.

See id. In fact, the state authorized its presence on an annual basis. Id.
                                    17

      F. Claims Other than Negligence. Johnson urges that the district

court erred in dismissing her nuisance and premises-liability claims

against the County because the public-duty doctrine only prevents the

recognition of a common law duty of reasonable care. Our cases applying

this doctrine belie Johnson’s contention. We said in Kolbe, “[I]f a duty is

owed to the public generally, there is no liability to an individual member

of that group.” 625 N.W.2d at 729 (quoting Wilson, 282 N.W.2d at 667).

“No liability” includes these other tort claims. In fact, the plaintiffs had

alleged a premises-liability claim against the state in Estate of McFarlin,

No. 14–1180, 2015 WL 5292154, at *6 (Iowa Ct. App. Sept. 10, 2015).

      Finally, Johnson added by amendment a count to her petition

alleging a private right of action “under Iowa statutes.” But as already

noted, she does not contend that Iowa Code chapter 318 per se provides a

private right of action. Her contention rather is that the nuisance statute

(section 657.1) authorizes a suit for injuries resulting from the County’s

failure to follow section 318.4. Cf. Estate of McFarlin, 881 N.W.2d at 56–

58 (rejecting plaintiffs’ claim that various provisions in chapter 461A

created a private right of action). As we have already explained, this claim

cannot succeed because of the public-duty doctrine.

      G. Nonfeasance vs. Misfeasance.        Johnson also voices concern

that applying the public-duty doctrine here would eliminate a plaintiff’s

ability to pursue a claim where a county negligently erects an obstacle

directly in the path of motorists. We are not persuaded.

      In the classic case for invoking the public duty doctrine, the
      duty is imposed by a statute that requires the defendant to
      act affirmatively, and the defendant’s wrongdoing is a failure
      to take positive action for the protection of the plaintiff.

2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts

§ 345, at 375 (2d ed. 2011) (footnote omitted); see also id. § 346, at 380
                                            18

(discussing “the fundamental distinction between positive acts of

negligence on the one hand and non-action on the other”); 18 Eugene

McQuillin, The Law of Municipal Corporations § 53:18, at 251 (3d rev. ed.

2013) [hereinafter McQuillin] (“The rule protects municipalities from

liability for failure to adequately enforce general laws and regulations,

which were intended to benefit the community as a whole.”).

       We believe the limited resources of governmental entities—combined

with the many demands on those entities—provide a sound justification

for the public-duty doctrine. See Restatement (Third) § 37, cmt. i.; see also

18 McQuillin § 53:18, at 253–54. 3 Cities, counties, and the state have to

balance numerous competing public priorities, all of which may be

important to the general health, safety, and welfare. This does not mean

the same no-duty rule would protect that entity when it affirmatively acts

and does so negligently. Cf. Skiff v. State, 479 N.Y.S.2d 946, 951 (Ct. Cl.

1984) (finding the state could be liable when a vehicle left a state road and

traveled along a drainage ditch into an earthen headwall where the ditch

was “created by the State” and “constituted a trap or snare”). That case is

not before us today.


       3According   to McQuillin,
                Courts give several reasons for the rule. First, it is impractical to
       require a public official charged with enforcement or inspection duties to
       be responsible for every infraction of the law. Second, government should
       be able to enact laws for the protection of the public without exposing the
       taxpayers to open-ended and potentially crushing liability from its
       attempts to enforce them. Third, exposure to liability for failure to
       adequately enforce laws designed to protect everyone will discourage
       municipalities from passing such laws in the first place. Fourth, exposure
       to liability would make avoidance of liability rather than promotion of the
       general welfare the prime concern for municipal planners and
       policymakers. Fifth, the public duty rule, in conjunction with the special
       relationship exception, is a useful analytical tool to determine whether the
       government owed an enforceable duty to an individual claimant.
18 McQuillin § 53:18, at 253–54 (footnotes omitted).
                                  19

      V. Conclusion.

      For the foregoing reasons, we affirm the district court’s grant of

summary judgment to the County.

      AFFIRMED.

      All justices concur except Wiggins, Appel, and Hecht, JJ., who

dissent.
                                      20

                                    #16–1896, Johnson v. Humboldt County

WIGGINS, Justice (dissenting).

        I. The Public-Duty Doctrine.

        The majority decides this case based on the public-duty doctrine.

This doctrine provides, “[I]f a duty is owed to the public generally, there is

no liability to an individual member of that group.”          Kolbe v. State,

625 N.W.2d 721, 729 (Iowa 2001) (en banc) (quoting Wilson v. Nepstad,

282 N.W.2d 664, 667 (Iowa 1979)). However, if “the plaintiff can establish,

based on the unique or particular facts of the case, a special relationship

between the [s]tate and the injured plaintiff consistent with the rules of

Restatement (Second) of Torts section 315[,]” then the breach of duty owed

to the public at large is actionable. Id. (emphasis omitted).

        Restatement (Second) of Torts section 315 provides,

        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.

Restatement (Second) of Torts § 315 (Am. Law Inst. 1965).

        I now turn to Estate of McFarlin v. State, 881 N.W.2d 51 (Iowa 2016),

a 4–3 decision that largely forms the basis of the majority’s decision in this

case.

        A. Estate of McFarlin Does Not Apply to This Case. In Estate of

McFarlin, a boy riding in a speedboat died when the driver steered the

speedboat at thirty miles per hour between two danger buoys and struck

a submerged dredge pipe. 881 N.W.2d at 53. The state owned the lakebed

of Storm Lake, where the accident occurred, and allowed the public to use
                                      21

the lake. Id. The state was not responsible for the day-to-day operations

of the dredge pipe. Id. at 54. In applying the public-duty doctrine, the

majority reasoned the plaintiffs did not belong to a particularized,

identifiable class because Storm Lake was open to the public and all

members of the public were free to use it. Id. at 62. The majority refused

“to limit the public-duty doctrine merely because the claim arose in a

confined geographic area such as a public lake.” Id.

      On the contrary, the dissent reasoned the state owed a duty not to

the members of the public but “only to the boaters on Storm Lake who

were exposed to a risk of serious injury or death from the submerged

dredge pipe.”   Id. at 68 (Hecht, J., dissenting).     The dissent further

reasoned “the risk allegedly created by the [s]tate and its dredging agents

endangered a limited universe of people at a specific location.” Id. It was

irrelevant that local entities, not the state, owned and operated the dredge

pipe because the state nevertheless controlled the prescribing terms for

the dredging activity through the permitting process. See id. at 70 & n.10.

Moreover, the state through its nonperformance created the very specific

risk of physical injury or death to boaters, and thus “the [s]tate’s

involvement in creating such a risk justifies our recognition of an

affirmative duty in this case.” Id.

      I think the dissent in Estate of McFarlin correctly found an

affirmative duty on the part of the state. Likewise, in the instant case, I

cannot reach the same outcome as the majority even if the public-duty

doctrine applies because I find an affirmative duty on the part of the

County.

      The County has a statutory obligation to remove the concrete

embankment in the ditch pursuant to Iowa Code section 318.4, yet the

County failed to do so. Section 318.4 provides, “The highway authority
                                     22

shall cause all obstructions in a highway right-of-way under its

jurisdiction to be removed.” Iowa Code § 318.4 (2013) (emphasis added).

      Section 37 of the Restatement (Third) of Torts provides, “An actor

whose conduct has not created a risk of physical . . . harm to another has

no duty of care to the other unless a court determines that one of the

affirmative duties provided in §§ 38–44 is applicable.” Restatement (Third)

of Torts: Liab. for Physical & Emotional Harm § 37, at 2 (Am. Law Inst.

2012) [hereinafter Restatement (Third)].

      Section 38 of the Restatement (Third) provides, “When a statute

requires an actor to act for the protection of another, the court may rely

on the statute to decide that an affirmative duty exists and to determine

the scope of the duty.” Id. § 38, at 21. Furthermore, comment c of section

38 provides,

      When the legislature has not provided a [private cause of
      action], but the interest protected is physical . . . harm, courts
      may consider the legislative purpose and the values reflected
      in the statute to decide that the purpose and values justify
      adopting duty that the common law had not previously
      recognized.

Id. § 38 cmt. c, at 22.

      At first glance, the language of Iowa Code section 318.4 reflects a

nonactionable duty owed to the public.          However, I would find an

affirmative duty owed by the County to the plaintiff Kaitlyn Johnson and

a special relationship between Johnson and the County. I refer to an

instructive case to illustrate my point.

      In Irwin v. Town of Ware, the Supreme Judicial Court of

Massachusetts addressed the issue of whether police officers of the town

owed the plaintiffs a duty to remove an intoxicated motorist from the

roadways. 467 N.E.2d 1292, 1299 (Mass. 1984). Specifically, the court

phrased the issue as “whether the standard of care owed to the general
                                     23

public by the town through its police officers in the instant case implies

a . . . special relationship.” Id. at 1302. The town argued the officers owed

this duty to the public only, and thus the plaintiffs could not maintain a

private negligence action against it for harm caused by the officers’ failure

to remove the intoxicated motorist from the roadways. Id. at 1299.

      In rejecting the town’s argument, the court reasoned the applicable

statutes providing for the duties of the police give rise to a special

relationship. Id. at 1302–03. The court first observed the relevant statutes

gave the officers certain privileges and rights, such as the right to arrest

an intoxicated person without a warrant. Id. at 1302. The court then

observed some of the relevant statutes required the police to act, such as

mandating officers to prevent disturbances.       Id.   The court therefore

reasoned, “[The] police can be found to be in neglect of statutory

responsibilities by mere failure to act when confronted by an intoxicated

driver.” Id. (emphasis added). In finding an affirmative duty owed to the

plaintiffs, the court concluded, “[T]here is a special relationship between a

police officer who negligently fails to remove an intoxicated motorist from

the highway, and a member of the public who suffers injury as a result of

that failure.” Id. at 1303–04. Specifically, based on its interpretation of

the statutes establishing police responsibilities, the court concluded the

legislature intended “to protect both intoxicated persons and other users

of the highway.” Id. at 1304.

      Here, the language of Iowa Code section 318.4 is mandatory. Again,

section   318.4   provides,   “The   highway   authority   shall   cause   all

obstructions in a highway right-of-way under its jurisdiction to be

removed.” Iowa Code § 318.4 (emphasis added). Similar to the applicable

statutes in Irwin requiring action on the part of the police, section 318.4

leaves no room for discretion on the part of the highway authority.
                                     24

Specifically, this section requires the highway authority to remove all

obstructions in a right-of-way. I would therefore find the County owes an

affirmative duty to an identifiable class of persons exposed to a risk of

physical harm from obstructions on the highway right-of-way and harmed

by its failure to comply with the statutory requirement of section 318.4.

The County has the authority to order the removal of the concrete

embankment but it has not done so despite the mandatory language of

section 318.4.

      Notably, section 318.4 does not specify that the highway authority

must remove all obstructions only in the traveled portion of the right-of-

way. Section 318.1 defines “highway right-of-way” as “the total area of

land, whether reserved by public ownership or easement, that is reserved

for the operation and maintenance of a legally established public

roadway.” Id. § 318.1(3) (emphasis added). This section further provides,

“This area shall be deemed to consist of two portions, a central traveled

way including the shoulders and that remainder on both sides of the road,

between the outside shoulder edges and the outer boundaries of the right-

of-way.”    Id. (emphasis added).      It is irrelevant that the concrete

embankment is not in the traveled portion of the right-of-way.        The

legislature has broadly defined right-of-way to include the untraveled

portion of the total area constituting a public roadway.

      I note the distinction between nonfeasance and misfeasance is

artificial in practice.   In practice, the result is the same, whether the

County committed misfeasance by affirmatively erecting the concrete

embankment or whether the County committed nonfeasance by failing to

remove the concrete embankment when it was under an affirmative duty

to do so. The public-duty doctrine does not apply because the County
                                     25

owed an affirmative duty to Johnson, regardless of whether the majority

packages the duty in terms of nonfeasance or misfeasance.

      Additionally, a special relationship exists between Johnson and the

County. Section 40(b)(3) of the Restatement (Third) states “a business or

other possessor of land that holds its premises open to the public with

those who are lawfully on the premises” owes a duty of reasonable care.

Restatement (Third) § 40(b)(3), at 39 (emphasis added). It is an undisputed

fact that the County has a right-of-way easement across the concrete

embankment. Thus, because the County is an easement holder, it is a

possessor of land. See id. § 49 cmt. d, at 226 (“Possession of land may be

divided among several actors . . . . In such cases, each actor has the duty

provided in this Chapter with respect to the portion of the premises

controlled by that actor.”). The County could have ordered the removal of

the concrete embankment because it “has the authority and ability to take

precautions to reduce the risk of harm to entrants on the land.” Id. § 49

cmt. c, at 225. The majority concedes as much. Because the County fits

comfortably within the definition of possessor of land, which is one of the

special relationship categories listed in section 40(b), I would find there is

a special relationship between Johnson and the County.

      B. The Public-Duty Doctrine Conflicts with Our Legislature’s

Enactment of the Iowa Tort Claims Act (ITCA) and the Iowa Municipal

Tort Claims Act (IMTCA). The public-duty doctrine is a form of judicially

created sovereign immunity and is at odds with the legislature’s clear

intent in limiting the scope of sovereign immunity.          Adam v. State,

380 N.W.2d 716, 724 (Iowa 1986) (en banc) (noting the public-duty

doctrine is clearly incompatible with the ITCA).

      We cannot search for meaning beyond the express terms of a statute

when the statute is plain and its meaning is clear. Thompson v. Kaczinski,
                                     26

774 N.W.2d 829, 832 (Iowa 2009).       We give words in the statute their

ordinary and common meaning absent a statutory definition or an

established meaning in the law. See id. at 832–33. When the explicit

terms of a statute are ambiguous, we resort to the rules of statutory

construction.   Id. at 833.    “[I]f reasonable minds could differ or be

uncertain as to the meaning of the statute[,]” there is ambiguity in the

statute. Id. (quoting Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996)).

      In determining legislative intent, we take into account “not only the

language of the statute, but also its subject matter, the object sought to

be accomplished, the purpose to be served, underlying policies, remedies

provided, and the consequences of various interpretations.”         State v.

Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). We glean legislative intent

from the words the legislature has chosen, not what we think it should or

would have said. Fagen v. Grand View Univ., 861 N.W.2d 825, 834 (Iowa

2015). Additionally, we cannot “extend, enlarge[,] or otherwise change the

meaning of a statute” under the guise of construction. Auen v. Alcoholic

Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). Lastly, to give effect to

the legislature’s intent, we must examine and interpret the statute as a

whole rather than solely engage in a piecemeal analysis. Rojas v. Pine

Ridge Farms, L.L.C., 779 N.W.2d 223, 231 (Iowa 2010). I now turn to the

relevant statutes.

      The ITCA provides, “The state shall be liable in respect to

[negligence] claims to the same claimants, in the same manner, and to the

same extent as a private individual under like circumstances . . . .” Iowa

Code § 669.4. Thus, in making the state liable for negligence as if the state

was a private actor, the ITCA abrogates sovereign immunity, with some

express exceptions codified in section 669.14. See id. § 669.14. Similar

to the ITCA, the IMTCA provides, “Except as otherwise provided in this
                                       27

chapter, every municipality is subject to liability for its torts and those of

its officers and employees, acting within the scope of their employment or

duties . . . .”   Id. § 670.2.   Thus, in making governmental subdivisions

liable for negligence, the IMTCA abrogates sovereign immunity, with some

express exceptions codified in section 670.4. See id. § 670.4.

       The public-duty doctrine creates immunity where the legislature has

not done so.      The language of the ITCA and the IMTCA is clear.        The

legislature has not codified the public-duty doctrine as an exception in

section 669.14. Id. § 669.14. Nor has the legislature included the public-

duty doctrine as one of the exceptions to the waiver of immunity in section

670.4. Id. § 670.4. We should therefore exercise judicial restraint and

refrain from engrafting the public-duty doctrine onto the respective

statutes.

       Additionally, we stated in Kolbe that the state “shares the same—

but not greater—liability to injured parties as other defendants under like

circumstances.”      625 N.W.2d at 730 (quoting Sankey v. Richenberger,

456 N.W.2d 206, 209 (Iowa 1990)). This statement cuts both ways: the

state or governmental subdivisions share the same—but not lower—

liability to victims as other private actors in similar situations.

       A number of jurisdictions have been joining the trend of rejecting or

at least limiting the public-duty doctrine.         See Estate of McFarlin,

881 N.W.2d at 66 & n.8 (collecting cases); see also Wilson, 282 N.W.2d at

667 (“[T]he trend in this area is toward liability.”). Moreover, in Iowa, we

have narrowed the application of the doctrine. See Kolbe, 625 N.W.2d at

729. We have also either addressed or doubted the continued viability of

the doctrine in Wilson, 282 N.W.2d at 667–69, and in Adam, 380 N.W.2d

at 724.      I agree with the dissent in Estate of McFarlin that the

characterization of the doctrine as “alive and well” in Raas v. State,
                                     28

729 N.W.2d 444, 449 (Iowa 2007), was “inapt.”            Estate of McFarlin,

881 N.W.2d at 67.

      Lastly, the public-duty doctrine is “confusing and inconsistent.”

Hudson v. Town of E. Montpelier, 638 A.2d 561, 568 (Vt. 1993).            For

example, we declined to apply the public-duty doctrine when the victim

belonged to an identifiable class, such as “all those rightfully using the

roads” in Lee County, Harryman v. Hayles, 257 N.W.2d 631, 638 (Iowa

1977), overruled on other grounds by Miller v. Boone Cnty. Hosp.,

394 N.W.2d 776, 781 (Iowa 1986), abrogated by Estate of McFarlin,

881 N.W.2d at 61 n.6, and “the traveling public” in Scott County,

Symmonds v. Chi., Milwaukee, St. Paul & Pac. R.R., 242 N.W.2d 262, 265

(Iowa 1976), abrogated by Estate of McFarlin, 881 N.W.2d at 61 n.6. In

Estate of McFarlin, we stated in dictum that “[w]e no longer recognize

county-wide special classes of motorists after Kolbe.” 881 N.W.2d at 61

n.6 (majority opinion). Yet we neither explicitly stated nor implicitly hinted

at such a notion in Kolbe.

      I disagree with Estate of McFarlin’s characterization that Kolbe

abrogated Harryman and Symmonds. The dictum in Estate of McFarlin

simplifies and overlooks the context in which we decided Kolbe and fails

to look at the broader legal principle behind it. In Kolbe, a motorist with

impaired vision struck a bicyclist on a county road. 625 N.W.2d at 724.

The plaintiffs—the bicyclist and his wife—filed suit against the state,

alleging the state negligently issued driving privileges to the motorist

despite knowledge of his impaired vision. Id. at 724–25. We considered

the issue of whether the state owed a duty to the plaintiffs when it issued

a driver’s license to the motorist. Id. at 728. Answering in the negative,

we reasoned the legislature enacted the licensing statute for the benefit of

the public at large. Id. at 729. We also reasoned the plaintiffs did not
                                     29

claim a special relationship with the state arising out of the unique or

particularized facts of the case.     Id. at 730.   In affirming summary

judgment in favor of the state, we applied the public-duty doctrine and

held the state did not owe a duty to the plaintiffs. See id. at 729–30.

      My takeaway from Kolbe is that the question of whether a plaintiff

belongs to a particularized class is a fact-based analysis taking into

account the unique circumstances of each case. In sum, I find the triad

of Harryman, Symmonds, and Kolbe, all of which dealt with classes of

motorists, solidifies the notion that the public-duty doctrine “is confusing”

and results in “unpredictable” outcomes. See Hudson, 638 A.2d at 566.

      II. Conclusion.

      For the foregoing reasons, I respectfully dissent. I would reverse the

district court’s grant of summary judgment to the County.

      Hecht and Appel, JJ., join this dissent.
