                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1593
                              Filed August 7, 2019


DENA JEAN BLAZEK, Administrator of the Estate of ADAM WILLIAM
BLAZEK, Deceased; DENA JEAN BLAZEK, Individually, and as Next Friend
of C.B. and A.B.,
      Plaintiffs-Appellants,

vs.

CITY OF NEVADA, IOWA and CITY OF NEVADA, IOWA EMPLOYEES DOE,
      Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, James A. McGlynn,

Judge.

      The plaintiffs appeal the district court’s decision granting the motion for

summary judgment filed by the City of Nevada and unnamed City of Nevada

employees in a suit seeking money damages for the death by suicide of Adam

Blazek and the conduct of City of Nevada police officers. AFFIRMED.



      William T. Talbot of Newbrough Law Firm, LLP, Ames, for appellants.

      Jason C. Palmer, Thomas M. Boes, and Catherine M. Lucas of Bradshaw,

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



      Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
                                                  2


POTTERFIELD, Judge.

          Dena Blazek appeals the district court’s decision granting the motion for

summary judgment filed by the City of Nevada and unnamed City of Nevada

employees in a suit seeking money damages for the death by suicide of her

husband, Adam Blazek, and the conduct of City of Nevada police officers. Dena

brought the suit in her personal capacity and in her representative capacities as

the administrator of Adam’s estate and as next friend of C.B., Dena’s child from a

previous marriage, and of A.B., Dena and Adam’s child.1 For the plaintiffs’ tort-

based causes of action (claims I, II, III, and V), the district court determined

summary judgment was proper because the defendants did not owe a duty to

Adam, Dena, or the children individually. For the plaintiffs’ constitutional claims,

the district court determined summary judgment was proper regardless of

whether the claims were based on constitutional torts brought under Godfrey v.

State, 898 N.W.2d 844 (Iowa 2017) or substantive due process claims.                          On

further review, we conclude the district court properly granted summary judgment

on all claims.

      I. Background Facts and Proceedings

          All the facts pertinent to this appeal occurred within a twenty-four-hour

period. The parties stipulated to the facts for the purpose of summary judgment.

On the morning of February 3, 2016, Adam was at the family’s home with C.B.

and A.B., then thirteen and six years old respectively. Dena was at work. The

children were loudly playing and laughing in C.B.’s bedroom when Adam came

into the bedroom and told them to be quiet. He then left the room. The children

1
    For clarity, we use “plaintiffs” to refer to Dena in all three capacities collectively.
                                        3


continued to play loudly, and Adam returned and told them if they would not be

quiet, he would get his gun. A.B. responded that they would call 911 if he did

that, to which Adam responded that they would be dead before the police

showed up. Adam then left the bedroom again, returning a short time later with a

handgun. Adam held the gun against his chest, frightening the children. He left

the room again, and C.B. went into the bathroom to hide. She sent Dena a

series of six to eight text messages at around 10:40 a.m., telling Dena what had

happened.

      Dena noticed the messages around 11:00 a.m. and was shocked by what

she read. Adam had never threatened the children with the gun before, nor had

he taken the gun out in Dena’s presence before. Dena called C.B. and told her

to get A.B. and get out of the house. Dena then called her father, Phil, who also

lived in Nevada. She told Phil what had happened and asked him take the

children to his house. He told her he would. C.B. tried to call Phil around this

time, but Adam took her phone while C.B. was making the call. Dena then called

Adam and told him her father would be picking the children up. During this call,

Adam smashed C.B.’s phone. The children waited outside where Phil picked

them up and brought them back to his house.

      Dena then left work and travelled to Phil’s house, where she spoke with

the children. Around 3:45 p.m., she and her cousin Charlie traveled back to the

Blazeks’ home to gather the children’s clothing and other items.      Adam was

present while they were there. Adam and Dena agreed to talk the next day about

what had happened. While Dena and Charlie were leaving, Dena told Charlie

she believed Adam would kill himself. She based this belief on the “eerie” feeling
                                        4


she had while at the home and on how calm Adam had been while she was there

with Charlie.

       Dena and Charlie returned to Phil’s house. On the advice of a family

friend who was a retired police officer, Dena called the Nevada Police

Department. Dena told the 911 operator what had happened, and the operator

sent Officer Kelli Springer to speak with Dena at Phil’s house. Officer Springer

spoke with Dena, her parents, and the children. Dena told Officer Springer she

believed Adam was suicidal and asked Officer Springer to perform a welfare

check on Adam, which she agreed to do. She also told Officer Springer that

Adam worked in Ames and would be leaving for work that night between 10:10

p.m. and 10:15 p.m. Dena warned Officer Springer Adam would likely not open

the door for the police. Officer Springer told Dena the police would try to arrest

Adam that night when he got to work and, if they were unable to do so, they

would try again the next morning. Officer Springer advised Dena to stay at Phil’s

house that night and that she would call her if they arrested Adam that night.

Dena agreed to stay at Phil’s house and wait for Officer Springer’s call. Officer

Springer told Dena the police would arrest Adam for child endangerment and

aggravated assault.

       Officer Springer left Phil’s house and went back to the police department

building. There, she conferred with other police officers. The police determined

the safest way to apprehend Adam was to arrest him once he arrived at work.

From 9:50 p.m. to 10:50 p.m. that night, three police officers waited outside the

Blazeks’ home for Adam to come out. The police officers never observed Adam

leave the Blazeks’ home.
                                          5


       At around 3:15 a.m., the Nevada Fire Department received a call about a

fire at the Blazeks’ home. The fire department arrived at the home to find it

engulfed in flames.     Once the fire was out, firefighters and police officers

searched the building and found Adam’s body in the basement. His cause of

death was determined to be a self-inflicted gunshot wound to the head. After an

investigation, the police determined Adam had doused the upstairs and

downstairs floors of the house in gasoline and started the fire before committing

suicide.

       Dena filed the petition on July 10, 2017; she did so in three capacities: her

personal capacity, her capacity as executor of Adam’s estate, and as next friend

of C.B. and A.B.      The petition alleged six causes of action: (I) negligent

misrepresentation on the part of the Nevada Police Department;2 (II) professional

malpractice on the part of the police officers; (III) negligence resulting in wrongful

death due to the Nevada Police Department’s failure to arrest Adam quickly; (IV)

violation of Adam’s rights under the Iowa Constitution by the City of Nevada; (V)

breach of fiduciary duty; and (VI) violation of Adam’s rights under the Iowa

Constitution by the anonymous City of Nevada employees.             The defendants

moved for summary judgment, and the district court granted their motion on all

claims on August 17, 2018. The plaintiffs appeal.

    II. Standard of Review

       We review motions for summary judgment for errors of law. Slaughter v.

Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 800 (Iowa 2019).


2
  Plaintiffs conceded there was no evidence supporting their claim of negligent
misrepresentation in the district court.
                                         6

“We view the record in the light most favorable to the nonmoving party.” Id.

(quoting Deeds v. City of Marion, 914 N.W.2d 330, 339 (Iowa 2018)). Summary

judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3).

   III. Analysis

       The district court granted the defendants’ motion for summary judgment

on claims I, II, III, and V because it determined neither the Nevada Police

Department nor its officers had a duty to Adam, Dena, or the children. The

district court granted the defendants’ motion for summary judgment on claims IV

and VI because the absence of evidence of malice and bad faith and the lack of

probable cause defeated the claims whether they were based on tort theories or

substantive due process theories.

       A. Tort Claims

       Claims I, II, III, and V require the plaintiffs to show the defendants had a

duty to Adam, Dena, or the children. Sain v. Cedar Rapids Cmty. Sch. Dist., 626

N.W.2d 115, 124 (Iowa 2001) (“As with all negligence actions, an essential

element of negligent misrepresentation is that the defendant must owe a duty of

care to the plaintiff. In the context of negligent misrepresentation, this means the

person who supplies the information must owe a duty to the person to whom the

information is provided.”); see also McGraw v. Wachovia Sec., L.L.C., 756 F.

Supp. 2d 1053, 1070 (N.D. Iowa 2010) (citing Smith v. Koslow, 757 N.W.2d 677,

680 (Iowa 2008)) (“In professional negligence actions, as in other negligence
                                          7


actions, the plaintiff must prove a duty of care was owed to him or her . . . .”);

Shivvers v. Hertz Farm Mgmt., Inc., 595 N.W.2d 476, 480 (Iowa 1999) (“The

existence of a fiduciary relationship necessarily assumes one of the parties has a

duty to act for or to give advice for the benefit of the other upon matters within the

scope of the fiduciary relationship.”). “The existence of a legal duty is a question

of law.” Kolbe v. State, 661 N.W.2d 142, 146 (Iowa 2003). The defendants

argue the public-duty doctrine applies to the officers’ actions and their inaction

defeating the plaintiffs’ claims. The plaintiffs argue the doctrine does not apply to

their claims or one of the doctrine’s exceptions to immunity applies. We address

each argument in turn.

        The public-duty doctrine “does not allow individuals to sue the government

for breach of a duty owed to the public at large.” Johnson v. Humboldt Cty., 913

N.W.2d 256, 259 (Iowa 2018).        A plaintiff can maintain an action against a

government actor, however, if they “can establish, based on the unique or

particular facts of the case, a special relationship between the State and the

injured plaintiff.” Kolbe, 625 N.W.2d at 729 (emphasis omitted). In Iowa, police

officers “do not owe a particularized duty to protect individuals; rather, they owe a

general duty to the public.” Morris v. Leaf, 534 N.W.2d 388, 390 (Iowa 1995).

Thus, unless the plaintiffs can establish a special relationship between the

defendants and the Blazek family based on the officers’ actions, their tort claims

must fail.

        We first address whether the defendants had a special relationship with

Adam.        “[T]he law generally imposes no duty upon an individual to protect

another person from self-inflicted harm in the absence of a ‘special relationship,’
                                             8

usually custodial in nature.” Jain v. State, 617 N.W.2d 293, 297 (Iowa 2000).

The plaintiffs do not allege any custodial relationship existed between Adam and

the defendants. The defendants did not interact with Adam at all.            Like the

district court, we conclude the plaintiffs have failed to establish the existence of a

special relationship between Adam and the defendants. As they relate to Adam,

claims I, II, III, and V fail as a matter of law.

       We similarly conclude claims I, II, III, and V must fail as they relate to

Dena and the children. While the defendants did interact with Dena and the

children by speaking with them, this interaction does not create a special

relationship. Police promises to perform actions are not sufficient to create a

special relationship. Allen v. Anderson 490 N.W.2d 848, 856 (Iowa Ct. App.

1992); Hawkeye Bank & Tr. Co. v. Spencer, 487 N.W.2d 94, 96 (Iowa Ct. App.

1992). As noted above, a special relationship between the police and a member

of the public is typically custodial in nature. Jain, 617 N.W.2d at 297; see also

Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178, 182 (Iowa 1991) (providing

hospitals and jails as examples of custody). Viewing the facts in the light most

favorable to the plaintiffs, we conclude there was no custodial relationship

between the defendants, Dena, and the children. Dena and the children were

advised by Officer Springer to remain at Phil’s house, but they were not

compelled by Officer Springer or the defendants to do so.

       The plaintiffs urge us to find a special relationship exists between the

Blazeks and the defendants because “the twin grave dangers of suicide and gun

violence” created by Adam’s actions were sufficient to create a special duty

between law enforcement and the family. The plaintiffs cite the Iowa Supreme
                                         9

Court’s recent decision in Johnson as support for this argument.         See 913

N.W.2d at 265. In Johnson, a driver had fallen asleep at the wheel and crashed

his vehicle into a concrete embankment in a ditch on the side of the road. Id. at

259.    The embankment was located within the area covered by defendant

Humboldt County’s right-of-way easement related to the road. Id. The driver

argued the public-duty doctrine did not apply to defeat his claim because of “the

‘grave danger’ presented by this matter of ‘highway safety.’” Id. at 265. The

court rejected this argument. Id. The public-duty doctrine applied “even when

highway safety is involved,” and the earlier cases that supported the driver’s

“grave danger” argument had been “superseded by more recent authority.” Id. at

265 n.2.      Like highway safety, the public-duty doctrine applies to situations

involving police inaction. See, e.g., Sankey v. Richenberger, 456 N.W.2d 206,

209–10 (Iowa 1990) (applying public-duty doctrine to a police chief’s failure to

prevent a fatal shooting at a city council meeting); Donahue v. Washington Cty.

641 N.W.2d 848, 851–52 (Iowa Ct. App. 2002) (applying public-duty doctrine to a

police officer’s failure to seize a dog known to harm people). We conclude no

exception to the public duty doctrine is created by the “twin grave dangers of

suicide and gun violence.”

       Because no special relationship was present between the defendants and

any members of the Blazek family, the only duty owed by the City of Nevada

police officers to the Blazek family was their duty to protect the public at large.

We conclude the district court properly granted summary judgment on claims I, II,

III, and V.
                                           10


       B. Constitutional Claims

       We next address claims IV and VI. The plaintiffs claim the defendants

violated their constitutional rights under article I, sections 1 and 9 of the Iowa

Constitution. The district court determined either both counts were based on tort

theories and should be dismissed for the absence of duty as counts I, II, III, and

V were, or the claims were based on alleged violations of substantive due

process rights and should be dismissed under the rules developed to adjudicate

§ 1983 actions. See 42 U.S.C. § 1983. Claim VI states defendants City of

Nevada employees informed “the Plaintiffs that Adam Blazek would be arrested,

or at least, that a welfare check would be made” and “[t]hat in total [the

defendants’] conduct more than shocks the conscience.”3

       The parties agree the plaintiffs must prove each of the following elements

to prevail on their claims:

               1. The defendant deprived the plaintiff of a right protected by
       the Iowa Constitution;
               2. The defendant acted under color of state law;
               3. The legislature has not provided an adequate remedy;
               4. The defendant’s conduct was a proximate cause of the
       plaintiff’s damage; and
               5. The amount of damage.

Iowa Bar Ass’n, Iowa Civil Jury Instructions 3000.1.            Because the plaintiffs

cannot show the defendants deprived any of them of any right protected by the

Iowa Constitution, we conclude the district court properly granted summary

judgment on these claims.


3
  The complaint did not specify whose constitutional rights were asserted by claims IV
and VI. The district court assumed all plaintiffs’ rights were asserted in both claims. On
appeal, the plaintiffs state claims IV and VI were meant to include all rights of all
plaintiffs.
                                          11


       We begin with claim IV, which alleges the defendants deprived Adam of

his rights under article I “by failing to intervene to prevent his death.” “There is no

constitutional right to be arrested and charged at the precise moment probable

cause comes into existence.” State v. Trompeter, 555 N.W.2d 468, 470 (Iowa

1996); see also DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S.

189, 200 (1989) (“The affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament or from its expressions of intent to help

him, but from the limitation which it has imposed on his freedom to act on his own

behalf.”).

       The defendants did not interact with or take custody of Adam at any point.

Neither party cites any case from any jurisdiction holding that a municipal

defendant or its employees deprives a person or their family members of a right

to life, liberty, the pursuit of happiness, or due process of law by failing to arrest

that person or to intervene to prevent suicide. And as addressed above, no

special relationship existed between the Blazeks and the defendants that

triggered an obligation beyond the police officers’ general duty to protect the

public at large. The Iowa Supreme Court has not held the public-duty doctrine

applies to constitutional tort claims brought under Godfrey v. State, 898 N.W.2d

844, 846–47 (Iowa 2017). The court has clarified, however, that common law

immunities and defenses were not displaced by the all-due-care defense to

constitutional claims established in Baldwin v. City of Estherville, 915 N.W.2d

259, 281 (Iowa 2018). Venckus v. City of Iowa City, ___ N.W.2d ___, ___, 2019

WL 2710807, at *4 (Iowa 2019) (“The Baldwin immunity is in addition to any other

common law immunities or defenses available and not a comprehensive
                                           12


substitute immunity.”). To the extent claims IV and VI allege constitutional tort

claims, we conclude the public duty doctrine applied to the police officers’ actions

and the district court properly granted summary judgment under the same

application of the public duty doctrine as on claims I, II, III, and V.

       Finally, the plaintiffs argue the defendants’ failure to intervene with Adam

created a significant risk of serious harm and their conduct “shocks the

conscience” such that the plaintiffs’ substantive due process rights were violated.

“[T]he shocks-the-conscience test is reserved for ‘the rarest and most outrageous

circumstances.’” Behm v. City of Cedar Rapids, 922 N.W.2d 524, 553 (Iowa

2019) (quoting United States v. Duvall, 846 F.2d 966, 973 (5th Cir. 1988)). “[I]n

order to meet the test, government action must be, among other things,

‘offensive to human dignity.’” Id. at 554 (quoting Blumenthal Inv. Trs. v. City of

W. Des Moines, 636 N.W.2d 255, 265 (Iowa 2001)). “[T]he collective conscience

of the United States Supreme Court is not easily shocked.”                Id. (quoting

Blumenthal, 636 N.W.2d at 265).             Situations that meet the shocks-the-

conscience test include “outrageous utilization of physical force; state-sponsored

imposition of uncalled-for embarrassment or ridicule; or intolerable, disreputable,

and underhanded tactics that may arise from government action deliberately

designed to penetrate the attorney-client privilege.” Id.

       Viewing the facts in the light most favorable to the plaintiffs, we conclude

the district properly granted the defendants’ motion for summary judgment on

claims IV and VI to the extent those claims allege the defendants deprived the

Blazek family of their substantive due process rights under article I, section 9 of

the Iowa Constitution. “[U]nder substantive due process analysis, the state is
                                         13


given great leeway in achieving its legitimate goals, particularly related to public

safety.”   Id. (citing Mackey v. Montrym, 443 U.S. 1, 17–19 (1979)).             The

undisputed facts show the City of Nevada police spoke with Dena, gathered

information from her, advised her not to return to the home, formulated a plan to

apprehend Adam based on what they knew, and then attempted to carry out their

plan.   None of the actions or inactions of the police officers constituted the

outrageous    use   of   physical   force,    state-sponsored   embarrassment,    or

underhanded tactics designed to penetrate the attorney-client privilege the Iowa

Supreme Court and United States Supreme Court have held violate an

individual’s substantive due process rights.

        We affirm the grant of summary judgment to the defendants on all claims.

        AFFIRMED.
