                    IN THE COURT OF APPEALS OF IOWA

                              No. 4-047 / 13-0672
                              Filed March 12, 2014


TIMOTHY MICHAEL BASQUIN,
     Plaintiff-Appellant,

vs.

CITY OF FAIRBANK, IOWA,
      Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Buchanan County, Joel A.

Dalrymple, Judge.



      The plaintiff appeals from the district court order granting summary

judgment in favor of the defendant. AFFIRMED.




      Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.

      Wilford H. Stone and Amy L. Reasner of Lynch Dallas, P.C., Cedar

Rapids, for appellee.



      Considered by Vaitheswaran, P.J., Mullins, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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EISENHAUER, S.J.

       Timothy Basquin appeals from the district court order granting summary

judgment in favor of the City of Fairbank.       He argues he generated a fact

question on the issue of whether the City willfully or maliciously failed to warn

against a dangerous condition on its property. We review the district court’s

grant of summary judgment for the correction of errors at law. Jones v. Univ. of

Iowa, 836 N.W.2d 127, 139 (Iowa 2013).

       Summary judgment should be granted only where there is no genuine

issue of material fact in dispute and the moving party is entitled to judgment as a

matter of law. Id. In reviewing a grant of summary judgment, we view the record

in the light most favorable to the nonmoving party. Id. at 140. We draw all

legitimate inferences the evidence bears in order to establish the existence of a

fact question. Id.

       In light of the foregoing requirements, we find the evidence establishes

that on January 31, 2010, Basquin was operating a snowmobile near a

pedestrian bridge owned by the City. The bridge was tethered with a slack,

unmarked cable, which was not visible to Basquin. When the snowmobile’s skis

hit the tethering cable, the cable smashed through the snowmobile’s windshield

and Basquin was seriously injured.

       Basquin filed an action against the City, alleging it willfully or maliciously

failed to guard or warn the public of a dangerous condition. After a hearing, the

district court granted the City’s motion for summary judgment. The court found

the City owed Basquin no duty.        It held Basquin failed to present sufficient

evidence by which a reasonable person could find the City acted in a manner
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amounting to a willful or malicious failure to guard or warn against a dangerous

condition as required under Iowa Code section 321G.22 (2009).

       Basquin contends the district court applied an improper standard of law.

He first complains the district court erred in weighing the evidence concerning the

condition of the cable because it found “the coloring and condition of the said

sheathing is a factual question in dispute and thus is given no weight in the ruling

set forth below.” He argues the court should have viewed the evidence in the

light most favorable to him and found the sheathing’s coloring and condition

increased the risk of danger. While we agree a fact finder could reasonably

conclude the tethering cable presented a dangerous condition, we also agree

with the trial court’s conclusion this fact is not dispositive in resolving the question

of whether the City willfully or maliciously failed to warn or guard against this

dangerous condition.

       Basquin also complains the district court erred in viewing the evidence

regarding the purpose and necessity of the tethering cable. In this regard, the

district court found as follows:

       Whether the city and its representative were correct in their
       understanding of the necessity and purpose of the cables (which is
       factually in dispute), the Court finds as fact that the relevant
       individuals employed by or associated with the City of Fairbank
       understood the cables were present to stabilize the footbridge if the
       river floods and to stop vandals from trying to rock or flip the
       footbridge. Other than the plaintiff’s expert, no engineer or expert
       has ever told the relevant individuals pertaining to the City of
       Fairbank that the tethering cables to the footbridge serve no
       purpose. The City of Fairbank had never been notified by any state
       or federal official that the footbridge and its tethering cables were
       deficient in any way, nor had the City of Fairbank ever been
       advised the footbridge and its related tethering cables presented a
       hazard to snowmobilers or other recreational users utilizing the
       park or waterway.
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The evidence supports this finding. Even if we presume the tethering cable was

unnecessary, the evidence shows the City believed the cable’s purpose was to

stabilize the bridge. There is no evidence to show the City knew the cable was

unnecessary or that it presented a hazard.

       Basquin also contends the court erred in its application of law in granting

summary judgment. Iowa Code section 321G.22 states in pertinent part:

       The state, its political subdivisions, . . . and their agents and
       employees owe no duty of care to keep the public lands . . . under
       the control of the state or a political subdivision safe for entry or use
       by persons operating a snowmobile, or to give any warning of a
       dangerous condition, use, structure, or activity on the premises to
       persons entering for such purposes, except in the case of willful or
       malicious failure to guard or warn against a dangerous condition,
       use, structure, or activity. The state, its political subdivisions, . . .
       and their agents and employees are not liable for actions taken to
       allow or facilitate the use of public lands . . . except in the case of a
       willful or malicious failure to guard or warn against a dangerous
       condition, use, structure, or activity.

Therefore, the City was under no duty to warn Basquin, a snowmobile operator,

of the presence of the tethering cable—no matter how dangerous—unless the

failure to do so rose to the level of a “willful or malicious failure.” See Iowa Code

§ 321G.22. The question before us is whether Basquin raised a fact question

regarding whether the City acted willfully or maliciously in failing to guard against

or warn him of the location of the tethering cable.

       Because there is no Iowa authority interpreting the “willful or malicious”

language of section 321G.22, we, like the district court, turn to case law

interpreting a similar statutory provision. In Bird v. Economy Brick Homes, Inc.,

498 N.W.2d 408, 408-10 (Iowa 1993), our supreme court applied the provisions

of section 111C.6 (1991), which provide an exception to a landowner’s limited
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liability when the landowner willfully fails to guard against a dangerous condition,

to a specific set of facts. Bird was operating an off-road motorcycle on land

owned by Economy Brick Homes when he was injured when he struck an

unmarked cable Economy Brick Homes had placed across an access road to

prevent vehicles from entering. Bird, 498 N.W.2d at 408. Although chapter 111C

gave landowners limited liability for injuries that result from unauthorized

recreational use of their property, Bird argued Economy Brick Homes’s action

amounted to a willful or malicious failure to guard against a dangerous condition,

an exception to a landowner’s limited liability as set forth in section 111C.6. Id. at

409. The court concluded “the mere placement of the cable across the access

road, without more, did not create an issue of material fact as to whether

Economy acted willfully or maliciously.” Id. at 410.

       The Bird court relied in part on Hegg v. United States, 817 F.2d 1328 (8th

Cir. 1987), in reaching its conclusion. See id. at 409. In Hegg, the Eighth Circuit

interpreted the meaning of willfully or maliciously in the same code section and

found it was not reasonable to infer a defendant acted willfully or maliciously in its

allegedly negligent construction of a swing set. 817 F.2d at 1332. The court was

critical of the plaintiff’s failure “to produce any evidence that the defendant was

aware of any dangerous condition in the swing set or of any previous injuries to

users.” Id. The Bird court interpreted this to mean “the Eighth Circuit required a

finding the defendant had knowledge of the dangerous condition before finding

the defendant acted willfully or maliciously.” 498 N.W.2d at 409.
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         Most recently, in Sallee v. Stewart, 827 N.W.2d 128, 154 (Iowa 2013), our

supreme court cited several authorities in interpreting the meaning of “willful” as

set forth in the section 461C.6(1) (2009) (formerly section 111C.6).

         One leading authority states that willful conduct may be found
         under a recreational use statute only where “a known or obvious
         risk so great as to make it highly probable that harm will result.” 3
         Louis A. Lehr, Jr., Premises Liability 3d, § 54.41 (2012). In Mandel
         v. United States, the Eighth Circuit indicated that willfulness
         requires knowledge or an appreciation that “danger is likely to
         result.” 719 F.2d 963, 967–68 (8th Cir. 1983). In construing the
         related phrase “willful and wanton,” we have stated that the actor
         must show “‘disregard of a known or obvious risk that was so great
         as to make it highly probable that harm would follow.’” Brokaw v.
         Winfield–Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 396 (Iowa
         2010) (quoting McClure v. Walgreen Co., 613 N.W.2d 225, 230
         (Iowa 2000)).

Sallee, 827 N.W.2d at 154. The court determined the evidence in the record was

insufficient to support a finding the plaintiff would engage in the type of behavior

that led to her injury, or that as a result of said behavior, an injury was likely to

occur.     Id.    Accordingly, the court concluded the plaintiff failed to present

sufficient evidence to allow a reasonable fact finder to find the defendants acted

willfully. Id.

         The district court here properly concluded there is insufficient evidence to

show the City acted willfully or maliciously in failing to warn against a dangerous

condition.       The record does not disclose anyone had been injured by the

tethering cable before Basquin, or that City employees otherwise knew the cable

presented a hazard. Although they may have been mistaken in their belief, the

uncontroverted record shows city employees believed the tethering cables were

necessary to stabilize the footbridge in the event of a flood or vandalism.

Viewing the evidence in the light most favorable to Basquin and applying the
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foregoing law, there is no dispute as to whether the City acted willfully or

maliciously. The City is entitled to judgment as a matter of law. Accordingly, we

affirm the district court’s grant of summary judgment in favor of the City.

       AFFIRMED.
