                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1326
                               Filed March 23, 2016

THE ESTATE OF MERCEDES GOTTSCHALK BY CO-EXECUTORS
REBECCA RASSLER AND RICHARD GOTTSCHALK,
     Plaintiff-Appellant,

vs.

POMEROY DEVELOPMENT, INC. d/b/a POMEROY CARE CENTER,
    Defendant, and

STATE OF IOWA,
     Defendant-Appellee.


POMEROY DEVELOPMENT, INC., d/b/a POMEROY CARE CENTER,
    Third-Party Plaintiff-Appellant,

vs.

STATE OF IOWA,
     Third-Party Defendant-Appellee.
________________________________________________________________
     Appeal from the Iowa District Court for Calhoun County, Thomas J. Bice,

Judge.


       An estate and a nursing home appeal the district court’s decision granting

summary judgment to the State of Iowa. AFFIRMED.


       Willis J. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellant

Estate.

       David H. Luginbill and Conner L. Wasson of Ahlers & Cooney, P.C., Des

Moines for appellant Pomeroy.

       Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant

Attorney General, Special Litigation Division, for appellee.

       Heard by Danilson, C.J., and Vogel and Potterfield, JJ.
                                       2


VOGEL, Judge.

       On interlocutory review, the Estate of Mercedes Gottschalk (the Estate)

and Pomeroy Development, Inc. d/b/a Pomeroy Care Center (Pomeroy) appeal

the district court’s decision granting summary judgment to the State of Iowa. The

Estate and Pomeroy claim the district court erred in concluding the State had no

duty of care as a matter of law, and the Estate also claims the court erred in

determining the State had sovereign immunity.      Pomeroy claims there were

genuine issues of material fact that prevented summary judgement and it was

improper for the district court to grant summary judgment when there was a

pending motion to compel discovery relevant to the issues before the court.

Because we agree the State had no duty of care as a matter of law, we affirm the

district court’s decision.1

I. Background Facts and Proceedings.

       William Cubbage was a convicted sex offender, who was committed to the

Civil Commitment Unit for Sexual Offenders (the CCUSO) on May 21, 2002.

Cubbage had previously been convicted of “assault with intent to commit sexual

abuse (in 2000), indecent contact with a child (1997 and 1991), and lascivious

acts with a child (1987).” In re Det. of Cubbage, 671 N.W.2d 442, 443 (Iowa

2003). He had been diagnosed with pedophilia and a personality disorder not

otherwise specified with antisocial and narcissistic features. In 2006 while he

was committed at the CCUSO, he was also diagnosed with dementia of the

Alzheimer’s type, and his mental and physical functioning declined.       It was


1
  The claims asserted by the Estate against Pomeroy were not part of the summary
judgment proceeding and remain pending in district court.
                                          3


mutually agreed between the director of the department of human services, the

attorney general’s office, and the public defender’s office that Cubbage was

unable to make further gains from his civil commitment at the CCUSO but also

agreed Cubbage was seriously mentally impaired and needed full-time custody

and care. On November 16, 2010, the district court entered an order placing

Cubbage under an Iowa Code chapter 229 (2009) civil commitment and ordered

Cubbage be placed at the Pomeroy Care Center until it was determined he no

longer needed care.       In entering this order, the district court determined

Cubbage’s decision-making process was significantly impaired due to this

underlying Alzheimer’s illness and found he was a danger to himself and others

due to his dementia and executive dysfunction. With the civil commitment under

chapter 229 in place, Cubbage’s attorney filed a motion to discharge him from

the CCUSO on November 24, 2010. The district court granted the discharge the

same day. Cubbage was transferred to Pomeroy on December 8, 2010.

       Prior to his arrival at Pomeroy, the treating team at the CCUSO met with

the administrative staff at Pomeroy to discuss Cubbage’s background including

his sexual offenses and his physical ailments.           Cubbage’s behavior was

discussed, and the CCUSO staff advised the Pomeroy employees that Cubbage

was not likely to be a danger to others in the facility due to his diagnosis of pre-

adolescent pedophilia. The main concern was to monitor Cubbage whenever

children from the local school or day care were present in the facility.

       On August 21, 2011, another resident at Pomeroy, Mercedes Gottschalk,

was sexually assaulted by Cubbage.         The assault was witnessed by a staff
                                          4


member’s child, who was walking through the hall and saw Cubbage in

Gottschalk’s room.

       Gottschalk filed suit against Pomeroy, and later the State of Iowa, for

negligence. Gottschalk specifically claimed the State was negligent in failing to

prepare a safety plan for Cubbage after he was placed in the facility, in failing to

inspect and determine that appropriate safety precautions were followed, and in

decreasing nursing home oversight.        After Gottschalk died, the Estate was

substituted as plaintiff in the case. Thereafter, Pomeroy asserted a cross-claim

against the State for contribution in the event it was found liable to the Estate.

The cross-claim asserted the State was negligent in failing to supervise and

monitor Cubbage while at Pomeroy, and in misrepresenting Cubbage was no

longer a risk or threat to society or the elderly prior to his admission at Pomeroy.

       The State filed a motion for summary judgment against the claims

asserted by the Estate and Pomeroy on May 28, 2014, claiming it had no duty to

prepare a safety plan or inspect and follow up after Cubbage was discharged

from the CCUSO. It likewise asserted in response to Pomeroy’s cross-claim that

it had no duty to supervise or monitor Cubbage after he was discharged. Finally,

the State asserted it was immune from claims for misrepresentation under Iowa

Code section 669.14(4) (2013). The Estate filed a motion to compel discovery of

documents the State had refused to produce. The State refused production by

claiming the requested documents were protected and confidential under various

provisions of the Iowa Code, and by asserting the attorney-client privilege and

attorney-work-product doctrine. The Estate and Pomeroy also filed resistances

to the State’s motion for summary judgment.
                                         5


       The district court granted summary judgment to the State, agreeing the

State owed no duty to provide a safety plan for Cubbage because he had been

unconditionally discharged from the CCUSO in November of 2010. The court

likewise found the State owed no common law duty to Gottschalk or Pomeroy to

supervise or monitor Cubbage after he was discharged. Finally, the court held

the doctrine of sovereign immunity prevented any claim of misrepresentation

against the State under Iowa Code section 669.14(4).           Because the court

dismissed the claims against the State in their entirety, the court concluded the

Estate’s pending motion to compel discovery was moot.

       From this ruling, both the Estate and Pomeroy filed petitions for

interlocutory appeal, which were granted by the supreme court, which then

transferred the case to this court.

II. Scope and Standard of Review.

       Our review of the district court’s summary judgment decision is for the

correction of errors at law. Thompson v. Kaczinski, 774 N.W.2d 829, 832 (Iowa

2009). Summary judgment is proper “only if there is ‘no genuine issue as to any

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

Id. (quoting Iowa R. Civ. P. 1.981(3)). The district court must view the evidence

in the light most favorable to the nonmoving party, and the party seeking

summary judgment has the burden of proof.            Id.   Normally, questions of

negligence are for the jury, but in exceptional cases, the issues may be decided

as a matter of law. Id.
                                        6


III. Duty of Care.

      The Estate claims the State had both a duty to warn the residents and a

duty to ensure safety protocols were in place to prevent harm to the residents of

the Pomeroy Care Center. Pomeroy likewise argues the State had a duty to

Pomeroy because of the special relationship between Cubbage and the State by

virtue of Cubbage’s commitment to, and subsequent discharge from, the

CCUSO. The Estate raises a new issue on appeal, namely that the State had a

duty of care in discharging Cubbage from the CCUSO because the residents of

the Pomeroy Care Center were within a foreseeable risk of harm and the State

was aware Cubbage was a danger to himself or others, preventing the State from

generally releasing Cubbage into the community at large.

      A. Error Preservation.

      The State claims the Estate failed to preserve error on its claims that the

State negligently placed Cubbage in the nursing home or negligently failed to

warn the residents of his presence. Likewise, the State claims Pomeroy failed to

preserve error on its claim the State negligently discharged Cubbage from the

CCUSO. While these claims were raised in both the Estate’s and Pomeroy’s

resistances to the State’s motion for summary judgment, the district court did not

address these claims in its ruling. Neither the Estate nor Pomeroy filed a motion

under Iowa Rule of Civil Procedure 1.904(2), requesting the court to rule on

whether the State owed a duty under these claims.

      “It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). If the district
                                            7


court fails to rule on an issue properly raised by a party, that party must file a

motion requesting a ruling in order to assert the claim on appeal. Id. There is

nothing in the district court’s ruling that indicates it considered the issues of

negligent discharge, negligent placement, or failure to warn when granting

summary judgment to the State. See Lamasters v. State, 821 N.W.2d 856, 864

(Iowa 2012) (“If the court’s ruling indicates that the court considered the issue

and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’

the issue has been preserved.” (citation omitted)). We thus agree with the State

that neither the Estate nor Pomeroy preserved error on these claims.2

       The State does not challenge error preservation with respect to the claims

the district court addressed in its ruling.      The court concluded there was no

statutory duty to provide a safety plan because Cubbage was unconditionally

discharged from the CCUSO. The court also ruled there was no common law

duty to supervise or monitor Cubbage after he was discharged. Therefore, we

confine our opinion on appeal to these issues, which were properly preserved.




2
  Even if we were to find these issues preserved, we would still find the State did not owe
a duty with respect to a negligent discharge or negligent placement claim. It was not the
State that discharged Cubbage from the CCUSO or that placed Cubbage in the
Pomeroy facility. Those were decisions made by the district court. Neither Pomeroy nor
the Estate made a claim against the district court for those decisions, and nor can they in
light of judicial immunity. See Blanton v. Barrick, 258 N.W.2d 306, 308 (Iowa 1977)
(“Few doctrines have been more settled than the absolute immunity of judges from
damages for acts committed within their judicial jurisdiction. This immunity applies even
when the judge is accused of acting maliciously and corruptly because as a matter of
policy it is in the public best interest that judges should exercise their function without
fear of consequences and with independence.”). The extent of the State’s role in
Cubbage’s discharge and placement was an agreement entered into between the
department of human services, the attorney general’s office, and Cubbage’s legal
representation that a recommendation be made to the court for Cubbage’s discharge
from the CCUSO and his placement in the Pomeroy facility. There is no allegation that
the State acted improperly in entering into this agreement.
                                        8


      B. Analysis.

      Whether a duty is owed under the particular facts of a case is a matter of

law for the court’s determination. Hoyt v. Gutterz Bowl & Lounge L.L.C., 829

N.W.2d 772, 775 (Iowa 2013). Our supreme court has recently adopted the

Restatement (Third) of Torts’s articulation of the duty of care in negligence

actions: “An actor ordinarily has a duty to exercise reasonable care when the

actor’s conduct creates a risk of physical harm.” Thompson, 774 N.W.2d at 834

(quoting Restatement (Third) of Torts: Liab. for Physical & Emotional Harm

§ 7(a), at 90 (Am. Law Inst. Proposed Final Draft No.1, 2005)). The supreme

court noted the general duty of reasonable care will apply in most cases and the

assessment of whether there is a duty no longer depends on the foreseeability of

harm based on the specific facts of the case.       Id. at 834–35.    However, in

exceptional cases the court may decide there is no duty or the duty should be

modified because “an articulated countervailing principle or policy warrants

denying or limiting liability in a particular class of cases.” Id. at 835 (quoting

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 7(b) (Am.

Law Inst. Proposed Final Draft No.1, 2005)). This countervailing principle or

policy also does not depend on the foreseeability of harm. Id. An assessment of

foreseeability is allocated to the factfinder in its determination of whether there

was a breach of a duty, not a court’s determination of whether such duty exists.

Id.

      A duty can also exist to a third party when there is a special relationship

between the actor and another.      See Restatement (Third) of Torts: Liab. for

Physical & Emotional Harm § 41(a) (Am. Law Inst. 2012) (“An actor in a special
                                          9


relationship with another owes a duty of reasonable care to third parties with

regard to risks posed by the other that arise within the scope of the

relationship.”). Examples of these special relationships in which a duty can be

owed to a third party include “(1) a parent with dependent children, (2) a

custodian with those in its custody, (3) an employer with employees when the

employment facilitates the employee’s causing harm to third parties, and (4) a

mental-health professional with patients.” Id. § 41(b).

       Prior to Thompson, our supreme court determined when a special

relationship existed between an actor and another person, such as between a

psychiatrist and a patient, the special relationship can give rise to a duty to either

control the behavior of the other person or to protect a third party. See Leonard

v. State, 491 N.W.2d 508, 510–11 (Iowa 1992). However, the court determined

the scope of that duty turns on the foreseeability of harm to the third party. Id. at

511. The court determined there were “strong public policy concerns about the

potential for limitless liability when an individual’s decision might affect the

general public.” Id. at 512. “We believe that the risks to the general public posed

by the negligent release of dangerous mental patients would be far outweighed

by the disservice to the general public if treating physicians were subject to civil

liability for discharge decisions.” Id. The court held “a psychiatrist owes no duty

of care to an individual member of the general public for decisions regarding the

treatment and release of mentally ill persons from confinement.” Id.

       While the Leonard court focused on foreseeability, a factor we no longer

are to consider when determining whether a duty exists under Thompson,

ultimately, the foreseeability discussion was part of the court’s determination that
                                            10


there were “strong public policy concerns” with imposing potentially limitless

liability on the decision to release a mentally ill person. Id. Interpreting Leonard

in light of our supreme court’s adoption of the Restatement (Third) of Torts’s new

definition of duty, we conclude that the Leonard case was the exceptional case

involving “an articulated countervailing principle or policy” that warranted

“denying or limiting liability in a particular class of cases.” See Thompson, 774

N.W.2d at 835 (quoting Restatement (Third) of Torts: Liab. for Physical &

Emotional Harm § 7(b) (Am. Law Inst. Proposed Final Draft No.1, 2005)).

       The negligence alleged by the Estate and Pomeroy in this case with

respect to the State was that the State owed a duty to supervise or monitor

Cubbage after he was discharged from the CCUSO so as to protect the residents

of Pomeroy.3 However, upon the unconditional discharge of Cubbage from the

CCUSO—a decision made by the district court—the special relationship between

the State and Cubbage ended.4            See Iowa Code § 229A.2(4) (“‘Discharge’

means an unconditional discharge from the sexually violent predator program. A

person released from a secure facility into a transitional release program or

released with or without supervision is not considered to be discharged.”). After


3
  At the district court, the Estate also claimed the State owed a statutory duty to develop
and implement a safety plan for Cubbage. See Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 28 (Am. Law Inst. 2012) (“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.”). The district court
rejected this assertion in the summary judgment ruling, noting that the statute requiring
the implementation of a safety plan only applied to patients who were subject to
transitional release under section 229A.8A. Because Cubbage was unconditionally
discharged under section 229A.10, there was no statutory duty for a safety plan. Neither
party appeals this ruling of the district court, and we thus need not address it further.
4
  As noted above, any claim that the State was negligent in entering into an agreement
for Cubbage to be discharged from the CCUSO was not ruled on by the district court and
is thus not preserved for appellate review.
                                          11


the district court issued the discharge order, the State had no ongoing obligation

to monitor or supervise Cubbage.

        Pomeroy claims the State’s actions after the allegations of sexual assault

arose against Cubbage show there is a factual dispute as to whether the State

had an ongoing duty to supervise or monitor Cubbage. After the sexual assault

came to light, Pomeroy contacted the physicians who had treated Cubbage at

the CCUSO and those physicians visited Pomeroy, spoke to staff members, and

offered training. However, the fact the State volunteered help to Pomeroy after

the assault occurred does not establish the State owed a duty to the Pomeroy

residents or to Pomeroy after Cubbage was unconditionally discharged from the

CCUSO. We affirm the district court’s grant of summary judgment to the State in

light of the fact that there was no duty of care owed by the State after Cubbage’s

discharge from the CCUSO.

IV. Sovereign Immunity.

        Next, the Estate claims the district court erred in concluding the State was

immune from suit for claims based on misrepresentation. We note the Estate

never asserted a cause of action for misrepresentation against the State. It was

Pomeroy that sued the State alleging the State misrepresented Cubbage’s

likelihood to reoffend when the staff of the CCUSO met with Pomeroy’s staff to

discuss placing Cubbage in the facility.           The State never made any

representations to Gottschalk, her family, or the other residents of Pomeroy. It

was Pomeroy, not the Estate, that suffered an adverse ruling when the district

court   concluded     the   State   had    sovereign   immunity    for   claims   of

misrepresentation under Iowa Code section 669.14(4). However, Pomeroy does
                                          12


not challenge the district court’s sovereign immunity ruling on appeal. Because

the Estate did not suffer as a result of this portion of the district court’s ruling and

because the Estate cannot raise claims on appeal on behalf of Pomeroy, we

affirm the decision of the district court concluding the State had sovereign

immunity for the misrepresentation claims asserted by Pomeroy. See Vicorp

Restaurants v. Bader, 590 N.W.2d 518, 521 (Iowa 1999) (“It is true that a party

may appeal only from an adverse judgment and not from a finding or conclusion

of law not prejudicial, no matter how erroneous.”); Ackerman v. Lauver, 242

N.W.2d 342, 347 (Iowa 1976) (“Without passing on the correctness of the trial

court’s decision, we hold [a party] cannot have a reversal because the court—

correctly or incorrectly—decided the claim of two other litigants.”).

V. Factual Disputes.

       Pomeroy asserts the district court was wrong to grant summary judgment

when there were factual disputes regarding issues of material fact. Specifically,

Pomeroy asserts there were issues of fact regarding whether the State acted

negligently in discharging Cubbage from the CCUSO, and whether the State

acted negligently in performing its role in the civil commitment of Cubbage at

Pomeroy under Iowa Code chapter 229. As stated earlier, the actual discharge

and placement decisions were made by the district court.             Pomeroy did not

preserve error to the extent it wanted to assert the State was negligent in its role

in entering into an agreement with Cubbage’s attorney to discharge Cubbage

from the CCUSO under chapter 229A or any role it might have played in having

Cubbage civilly committed and placed at Pomeroy under chapter 229.                 The

district court did not address the negligent discharge or negligent placement
                                       13


claims in the summary judgment decision and no motion under rule 1.904(2) was

filed. Thus, any claim of error alleging there were disputes regarding issues of

material fact on these claims when the summary judgment was granted was not

preserved for our review.

VI. Motion to Compel.

      Finally, Pomeroy claims the district court erred in granting summary

judgment when there was a pending motion to compel that was relevant to the

very issues before the court. First of all, we note it was the Estate’s motion to

compel, not Pomeroy’s. The pending motion to compel sought for the State to

produce Cubbage’s annual evaluations while he was at the CCUSO; the 90-day

patient assessments of Cubbage; copies of all correspondence between the

CCUSO, the Iowa Department of Human Services, and the Iowa Attorney

General’s office concerning Cubbage’s transfer of care to the Pomeroy Care

Center; and all documents reviewed by the physician who prepared the

discharge evaluation of Cubbage.

      Pomeroy claims the discovery is directly relevant to the State’s duty of

care. The district court dismissed the State as a party based on its conclusion

the State had no duty to supervise, monitor, or provide a safety plan after

Cubbage was discharged from the CCUSO. These discovery requests do not

address whether the State had a duty to supervise, monitor, or provide a safety

plan after Cubbage was discharged from the CCUSO. The pending motion to

compel discovery pertained to the claims that the State was negligent in entering

into an agreement that discharged Cubbage from the CCUSO and placing him at

Pomeroy, as well as negligent in failing to warn the residents of Pomeroy—
                                         14


claims the district court did not address in its ruling on summary judgment. No

one filed a motion under rule 1.904(2) requesting the court to address the State’s

duty pursuant to these claims. As we indicated above, these negligence claims

have not been preserved for our review due to a lack of a rule 1.904(2) motion.

Likewise, any claimed error based on the court’s failure to consider these claims

when determining how to rule on the motion to compel was also not preserved.

We conclude the district court did not abuse its discretion in ruling that the motion

to compel was moot in light of its decision on the motion for summary judgment.

See Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (“Our review of a ruling

by the district court on a motion to compel discovery is for abuse of discretion.”).

VII. Conclusion.

       Because we conclude the State did not owe a duty to supervise, monitor,

or provide a safety plan for Cubbage following the district court’s decision to

unconditionally discharge Cubbage from the CCUSO, we affirm the district

court’s decision granting summary judgment to the State. To the extent that

Pomeroy or the Estate assert claims that the State was in some way negligent in

its role in the proceedings to discharge Cubbage or place him in the Pomeroy

facility following his civil commitment, those claims are not preserved for our

review. We affirm the decision of the district court concluding the State had

sovereign immunity for the misrepresentation claims because Pomeroy did not

seek appellate review of this decision. We likewise agree with the district court’s

decision that the motion to compel is moot because the motion did not seek

discoverable information related to the claims addressed by the district court and
                                   15


the parties did not preserve error on the negligent discharge or negligent

placement claims.

      AFFIRMED.
