                     IN THE COURT OF APPEALS OF IOWA

                                     No. 15-0067
                                 Filed April 27, 2016


SARAH LINDEMULDER, DEBORAH LINDEMULDER,
AND DANIEL LINDEMULDER,
     Plaintiffs-Appellants,

vs.

DAVIS COUNTY COMMUNITY SCHOOL DISTRICT,
     Defendant-Appellee, and

RYAN GRINSTEAD, and PATRICK NICOLETTO,
     Defendants.

        Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon,

Judge.


        Plaintiffs appeal the district court’s grant of summary judgment to the

school district in this lawsuit, alleging liability for the misconduct of school

employees. AFFIRMED.


        Steven Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for

appellants.

        Gayla R. Harrison and Nicholas T. Maxwell of Harrison, Moreland,

Webber & Simplot, P.C., Ottumwa, for appellee Davis County Community School

District.


        Heard by Vogel, P.J., Doyle, J., and Goodhue, S.J.*

        *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                           2


VOGEL, Presiding Judge.

       Sarah Lindemulder and her parents, Deborah and Daniel,                   (the

Lindemulders) appeal the district court’s grant of summary judgment to the Davis

County Community School District (the School District). The Lindemulders sued

the School District alleging a number of causes of action arising out of Sarah’s

sexual relationship with Patrick Nicoletto, a high school coach, and Ryan

Grinstead, a high school teacher. On appeal the Lindemulders maintain the

district court incorrectly concluded, with respect to their claim under Title IX, the

School District did not have actual notice of the sexual harassment and abuse

Sarah endured at the hands of Grinstead and Nicoletto. They also claim the

School District had a fiduciary relationship with Sarah due to her involvement in

school activities, and in addition, they claim the School District assumed a duty of

care for Sarah and every other student in the school district by virtue of providing

teaching and coaching services. They assert the School District should be liable

for damages because no teacher or coach reported the abuse as required by the

mandatory reporting requirement in Iowa Code sections 232.69–.70 (2011).

Finally, they claim Grinstead and Nicoletto were acting within the scope of their

employment and their actions were foreseeable as would give rise to the School

District’s liability under respondeat superior.

I. Background Facts and Proceedings.

       Neither party asserts the district court misapprehended the pertinent facts

of this case in ruling on the School District’s motions for summary judgment. We

thus rely on the district court’s statement of facts, which were undisputed or
                                           3


presented in the light most favorable to the Lindemulders as the nonmoving

parties.

       Sarah was a student in her junior and senior years at the School District in

the 2007–08 and 2008–09 school years. Grinstead was a math teacher and

athletics coach, and Nicoletto was an assistant athletics coach. Sarah engaged

in sexual relationships with Nicoletto beginning in the spring of 2008 and with

Grinstead beginning in the fall of 2008,1 both on school premises and off-

campus.2

       With respect to Sarah’s relationship with Nicoletto, a parent called

Principal Jeffry Graves to report there was a rumor Sarah was involved in an

inappropriate relationship with Nicoletto. Basketball Coach Dave Mason also

reported a “possible problem” with Sarah and Nicoletto to Principal Graves.

Principal Graves called Sarah into his office for a conference, and Sarah denied

the rumor, saying someone had misinterpreted something she said in the

lunchroom.    Principal Graves also asked Nicoletto about the rumor over the

phone. Nicoletto told Sarah about the phone call, and he said the impression he


1
  Both Nicoletto and Grinstead were convicted of sexual exploitation by a school
employee arising out their relationship with Sarah. See Iowa Code § 709.15 (2009).
However, Nicoletto’s conviction was reversed on appeal because he did not meet the
definition of a “school employee” under the applicable law at that time. See State v.
Nicoletto, 845 N.W.2d 421, 432 (Iowa 2014), superseded by statute, 2014 Iowa Acts ch.
1114, § 1 (including in the definition of school employee a person who has been issued
a coaching authorization).
2
  Sarah asserted she had sexual relations with Grinstead in his classroom, in her mom’s
home, in his vehicle, at the park, and at Grinstead’s home. Sarah asserted she kissed
Nicoletto in the high school locker room and had sexual relations with him at his home.
She claimed to have been together with Nicoletto one to two times per week and stayed
the night at his house once every two to three weeks. Sarah also acknowledges her
aunt was aware of her relationship with Nicoletto, but Sarah begged her aunt not to tell
her parents about the relationship. Sarah would tell her parents she was staying the
night with her aunt or with a friend in order see Nicoletto or Grinstead.
                                           4


got from Principal Graves was to have Sarah say she made it up. Principal

Graves, after this investigation, did not believe Sarah and Nicoletto were involved

in an inappropriate or sexual relationship or that Sarah had suffered sexual

abuse.

       With respect to Sarah’s relationship with Grinstead,3 Superintendent Sam

Miller heard a rumor that Sarah and Grinstead were seen at a movie theater

together. He asked Principal Graves to investigate. Principal Graves again met

with Sarah, this time in the high school counselor’s office, and asked her whether

there was an inappropriate relationship between her and Grinstead. Sarah again

denied a relationship existed and said it was just rumors. Both Principal Graves

and the school counselor found Sarah’s denial to be credible. Principal Graves

then questioned Grinstead in person. Grinstead also denied any relationship,

and Principal Graves found the denial credible. Principal Graves reported his

investigation results back to Superintendent Miller and to Sarah’s mother, and

concluded his investigation because he did not believe there was anything else

he could do to investigate the rumors.

       Track coach Joshua Husted observed what he thought was an

inappropriate situation when he saw Sarah going to the third floor during lunch,

which is where Grinstead’s classroom was located.            Husted recalled Sarah’s

name was brought up at a staff meeting to say she was not to report to the third

floor during lunch time. During her senior year, Sarah participated in the state

track meet. In the hallway of the hotel where the teams and coaches stayed for

3
 Sarah asserts Grinstead had a prior relationship with a student at his previous place of
employment, but there was no evidence this information was ever conveyed to Principle
Graves or anyone else at the School District.
                                         5


the state track meet, Husted observed an angry, whispered exchange between

Sarah and Grinstead. After witnessing the exchange, Husted told Grinstead that

having the conversation was not appropriate. This confrontation made Husted

“uneasy.” Also during the state track meet, Husted gave Grinstead permission to

take Sarah to get a sandwich, and the two were unfortunately involved in a motor

vehicle accident.      This accident was reported to Principal Graves, and both

Principal Graves and Husted informed Sarah’s parents. Husted also reported the

hotel hallway observation to Principal Graves.

       Other school employees who were also aware of a possible inappropriate

relationship between Sarah and Grinstead included teacher Nathan Taylor, who

Sarah testified saw her and Grinstead holding hands and kissing,4 and basketball

coach Dave Mason, who observed Sarah’s vehicle near Grinstead’s apartment

after a game. Mason told Ginstead that it did not “look good.” Neither Taylor nor

Mason reported their observations to the School District. Both Nicoletto and

Grinstead knew about Sarah’s relationship with the other, and neither informed

the School District.

       Sarah and Grinstead ended their relationship in May 2010, a year after

Sarah graduated from high school.        The following year, Sarah’s sister told

Sarah’s mother about Sarah’s relationship with Grinstead, and the matter was

reported to the police.     The Lindemulders filed a lawsuit against the School

District, Grinstead, and Nicoletto in December 2012, alleging liability for civil

damages for the crimes committed, for assault and battery, for violating a duty

4
  We note we have no testimony or affidavit from Taylor admitting he witnessed the
conduct, only Sarah’s testimony that he was present when the conduct between her and
Grinstead occurred.
                                            6


assumed by the School District to protect Sarah, for violating a duty as a

fiduciary, for loss of consortium, for violating the mandatory reporting

requirements, for lascivious conduct with a minor, and for violating Title IX.

       The School District filed two motions for partial summary judgment.5 The

first motion asserted the School District was not vicariously liable for the actions

of Grinstead and Nicoletto because they were not acting within the scope of their

employment with the School District when they engaged in inappropriate conduct

with Sarah. In the second motion, the School District claimed (1) it did not have

actual notice of the sexual abuse as required for a Title IX action, (2) it did not

violate the mandatory reporting rules because no employee had acquired a

reasonable belief of the abuse, (3) it was not liable under the doctrine of

assumed duty because the School District did not put Sarah in a worse situation

or cause her to forego alternatives to protect herself, (4) it did not breach any

fiduciary duty because it made a good faith effort to stop the sexual abuse, and

(5) it was not liable for parental consortium because it was not liable under any

claim for injuries sustained by Sarah. The Lindemulders resisted the motions,

asserting factual issues existed that prevented summary judgment.




5
  An additional motion for partial summary judgment was filed by the School District in
relation to the Lindemulders’ request for punitive damages against the School District. In
response to this motion, the Lindemulders filed a motion to amend the petition, removing
the claim for punitive damages against the School District. The School District
consented to the filing of the amended petition. The court granted the motion to amend
and denied the motion for partial summary judgment as it had been rendered moot. No
issue regarding punitive damages against the School District is raised on appeal.
                                           7


       After a hearing, the court issued separate rulings granting both motions for

partial summary judgment.        The rulings dismissed all of the pending claims

against the School District.6 The Lindemulders appeal.

II. Scope and Standard of Review.

       Our appellate court reviews the district court’s summary judgment

decisions for correction of errors at law. Sanon v. City of Pella, 865 N.W.2d 506,

510 (Iowa 2015).      “In determining whether summary judgment is proper, we

examine the record in the light most favorable to the nonmoving party and we

draw all legitimate inferences the evidence bears in order to establish the

existence of questions of fact.” Ne. Cmty. Sch. Dist. v. Easton Valley Cmty. Sch.

Dist., 857 N.W.2d 488, 492 (Iowa 2014) (citation omitted).             If there are no

disputed facts and the moving party is entitled to judgment as a matter of law,

then summary judgment is proper.          Sanon, 865 N.W.2d at 510.          If the only

conflict in the record concerns “the legal consequences of undisputed facts,” then

the case is properly resolved on summary judgment. Kragnes v. City of Des

Moines, 714 N.W.2d 632, 637 (Iowa 2006) (citation omitted).

III. Actual Notice under Title IX.

       In their first claim on appeal, the Lindemulders assert the district court

improperly granted summary judgment on the Title IX claim against the School

District because the School District had actual notice of the sexual harassment




6
  The claims against Grinstead and Nicoletto remained pending as of the filing of the
notice of appeal. The supreme court noted the potential interlocutory nature of the case,
and before the case was transferred to this court, the supreme court issued an order that
granted the application for interlocutory appeal by assuming, without deciding, the
challenged order from the district court was an interlocutory ruling.
                                        8


and abuse, and failed to adequately investigate and take appropriate remedial

measures to protect Sarah.

      In 1998 the United State Supreme Court ruled a student may recover

damages from a school if the student was subjected to sexual harassment and

abuse at the hands of a teacher, but recovery was limited to only those situations

where “an official who at a minimum has authority to address the alleged

discrimination and to institute corrective measures on the recipient’s behalf has

actual knowledge of discrimination in the recipient’s programs and fails

adequately to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

290 (1998).

      In granting summary judgment to the School District in this case, the court

concluded:

             The information available to the supervisory officials in this
      case was similarly nebulous and non-concrete, involving rumors of
      “an inappropriate relationship” without specifying any specific
      conduct. The conduct which was specified—that the parties were
      seen together at a movie theater, driving together in a motor
      vehicle, or whispering together in the hallway—simply does not rise
      to the level of actual notice of sexual misconduct, and no
      reasonable juror could so find.

The court went on to conclude the Lindemulders had likewise failed to establish

there was a factual dispute about whether the School District was “deliberately

indifferent” to the sexual harassment and abuse. After analyzing the applicable

law, the court found:

             In this case, it is clear that Principal Graves did complete at
      least a minimal investigation of the rumors regarding Nicoletto, and
      Graves’s investigation of the rumors regarding Grinstead was as
      thorough as it could be given the vagueness of the information he
      had received. This court finds that no reasonable juror could
      conclude from the evidence presented that Graves (and therefore
                                          9


       the [School District]) was “deliberately indifferent” to the rumors
       involving Nicoletto and Grinstead. Graves took the remedial action
       he thought appropriate, given the duties of his job. He did not turn
       a “blind eye” to the rumors reported to him, nor can his response be
       fairly characterized as “an official decision not to remedy the
       violation.”
               ....
               The court concludes that [the School District] was not
       deliberately indifferent to allegations of an inappropriate relationship
       between Sarah and either Grinstead or Nicoletto. The [School
       District’s] response was not “clearly unreasonable” as a matter of
       law. Therefore, as a matter of law, [the School District] must be
       granted summary judgment on Plaintiff Sarah Lindemulder’s claim
       of a Title IX violation as alleged in Count VIII.

       The Lindemulders claim on appeal the district court failed to give proper

weight to certain reports and indications of inappropriate behavior between Sarah

and Grinstead and Nicoletto. They assert it should be up to the jury to determine

whether or not the complaints received by the School District—being seen

together at a movie theater and whispering together in the hotel hallway—were

sufficient to conclude the School District had actual notice.

       In support of their claim on appeal, the Lindemulders cite two cases

asserting rumors, like the ones at issue in this case, were sufficient to generate a

jury question on whether the School District had actual notice. In Chancellor v.

Pottsgrove School District, 501 F. Supp. 2d 695, 708–09 (E.D. Pa. 2007), the

court concluded the evidence was sufficient to generate a jury question on actual

notice when the principal was notified the student and teacher were seen leaving

a restaurant together and the principal received information from the teacher in

question that the student had told a friend she was engaged in a sexual

relationship with the teacher. While Principal Graves did receive a report from

Superintendent Miller that he had heard a rumor Grinstead and Sarah were seen
                                       10


together at a movie theater, there was no evidence that Principal Graves was

informed of a rumor that Sarah and Grinstead or Nicoletto were involved in a

sexual relationship. We thus conclude the Chancellor case is distinguishable.

      The Lindemulders also cite the case of Doe A. v. Green, 298 F. Supp. 2d

1025, 1032–33 (D. Nev. 2004), where the court concluded the evidence was

sufficient to generate a jury question on whether the school had actual notice

when the student reported three instances of inappropriate behavior to the

principal, another teacher reported to the principal the student complained of

feeling uncomfortable around the teacher in question, and the student’s father

reported to the principal several inappropriate actions that had been reported to

him by the student. The Doe court stated that the evidence established the

student discussed her concerns regarding the teacher separately with three

different people, “who in turn reported the concerns to [the principal].” 298 F.

Supp. 2d at 1033.

      In this case, Sarah never reported any questionable or inappropriate

behavior to Principal Graves, neither did she complain to other individuals who in

turn reported the complaints to Principal Graves. She specifically denied any

relationship with Grinstead or Nicoletto when questioned by Principal Graves.

The evidence in the record shows the only information Principal Graves had was

a rumor Sarah and Grinstead were seen at a movie together, Sarah was

permitted to ride in a car with Grinstead to get a sandwich during the state track

meet and an accident occurred, Sarah and Grinstead had an angry whispered

exchange in the hallway of the hotel at the state track meet, and Husted felt

uneasy when he confronted Grinstead about the whispered exchange. We agree
                                           11


with the district court that this evidence alone is not sufficient for a reasonable

juror to conclude the School District had actual notice of the sexual abuse or

harassment of Sarah at the hands of Nicoletto and Grinstead.

IV. Fiduciary Relationship and Assumed Duty.

       For their next claim, the Lindemulders combine both of their claims of

fiduciary duty and assumed duty. As these claims are separate and distinct, we

will address them separately, as did the district court.7

       A.     Fiduciary Duty.        The Lindemulders claim Sarah’s extensive

involvement with the School District through her participation in sports gave rise

to a fiduciary duty to protect her from Nicoletto and Grinstead. “[A] fiduciary

relation exists between two persons when one of them is under a duty to act for

or to give advice for the benefit of another upon matters within the scope of the

relation.” Weltzin v. Cobank, ACB, 633 N.W.2d 290, 294 (Iowa 2001) (citation

omitted). The duty exists “wherever one man trusts in or relies upon another.”

Id. (citation omitted).

       A “fiduciary relation” arises whenever confidence is reposed on one
       side, and domination and influence result on the other; the relation
       can be legal, social, domestic, or merely personal.             Such
       relationship exists when there is a reposing of faith, confidence and
       trust, and the placing of reliance by one upon the judgment and
       advice of another.

Id. (citation omitted).   Our courts have looked to the following factors when

determining whether a fiduciary relationship exists: “the acting of one person for

another; the having and the exercising of influence over one person by another;

7
  The School District asserts on appeal that the Lindemulders did not preserve error on
the issue of whether the School District had a fiduciary duty to Sarah or assumed a duty.
Upon our review of the Lindemulders’ resistance to the School District’s motions for
summary judgment, we conclude the issue was adequately preserved.
                                           12


the reposing of confidence by one person in another; the dominance of one

person by another; the inequality of the parties; and the dependence of one

person upon another.” Id. (citation omitted).

       The district court concluded summary judgment was warranted on this

claim because there was no evidence Sarah had a special relationship with any

of the administration in the School District.8 The district court found Sarah placed

no confidence, faith, or trust in Principal Graves or the school counselor and

directly denied any inappropriate relationship existed when questioned in

confidence about the relationships. In addition, Sarah’s parents never sought the

advice, assistance, or counsel of any member of the School District in dealing

with Sarah’s relationship with Grinstead or Nicoletto. Absent any case law to

support a conclusion that a school district had a general fiduciary relationship

with all of its students, the district court concluded the undisputed facts did not

generate a sufficient jury question.

       On appeal, the Lindemulders cite Martinelli v. Bridgeport Roman Catholic

Diocesan Corp., 989 F. Supp. 110, 116–17 (D. Conn. 1997).                 The court in

8
  The district court had previously rejected the Lindemulders’ claims that were grounded
on the theory of respondeat superior. Thus, the court on this issue did not address their
claim that Sarah’s relationship with individual teachers or coaches gave rise to the
School District’s duty to protect her based on an agency relationship between the
teachers/coaches and the School District.
                The court agrees with Plaintiffs that a jury question has been
        generated on the issue of whether Nicoletto and Grinstead, defendants in
        this case, had a fiduciary relationship with Sarah. However the fact that
        Sarah may have had a fiduciary relationship with Nicoletto and Grinstead,
        or even with Mason and Husted, does not equate to a fiduciary
        relationship with [the School District]. The court has previously ruled that
        the doctrine of respondeat superior does not apply in this case, and [the
        School District] is not vicariously liable for the acts of its teacher/coach
        employees.
The district court’s summary judgment decision on the respondeat superior claims is
addressed later in this opinion.
                                          13

Martinelli concluded there was a factual dispute sufficient to survive summary

judgment on the issue of whether there was a fiduciary relationship between the

diocese and a parishioner family because there was evidenced to show: “the

Martinellis were active members of their parish, that plaintiff received sacraments

and attended catechism classes through the parish, that plaintiff spent much time

with [the abuser priest], and that plaintiff’s parents knew and approved of the time

their son was spending with the priest.” Martinelli, 989 F. Supp. at 116–17.

       While Sarah was involved in sports such as basketball, cross-country, and

track, that participation alone did not give the School District greater “influence”

or “dominance” over Sarah, or lead Sarah to depend on the School District to a

degree greater than any other student, as is required for the finding of a fiduciary

relationship. See Koenig v. Lambert, 527 N.W.2d 903, 906 (S.D. 1995) (noting

the diocese members were acting as agents or representatives of God and

taught the victim to trust, respect, and put his faith in members of the diocese),

overruled on other grounds by Stratmeyer v. Stratmeyer, 567 N.W.2d 220 (S.D.

1997). As the district court concluded, the record is silent as to whether Sarah or

her parents sought the advice, assistance, or counsel of any School District

administrator in dealing with Sarah’s relationship with Grinstead or Nicoletto.

When Principal Graves inquired about Sarah’s relationship with Nicoletto and

Grinstead, Sarah denied its existence; she did not confide in any administrators

or place her trust in them to protect her from further assaults by Nicoletto or

Grinstead.9


9
 Our courts have found a school has “an affirmative duty to take all reasonable steps to
protect its students” and “must exercise the same care toward them ‘as parents of
                                           14


       We agree with the district court based on the record presented there was

not sufficient evidence to generate a jury question regarding whether the School

District had a fiduciary duty to Sarah.          The Lindemulders did not present

evidence they placed their trust or confidence in the School District

administration or that the School District exerted influence or dominance over

them.10

       B.   Assumed Duty.         The Lindemulders also argue the district court

incorrectly granted summary judgment to the School District on their claim of

assumed duty. They assert the School District assumed a duty to care and

protect Sarah as they would do for every other student that attended the school.

Because of this assumed duty, the Lindemulders claim the School District is

directly liable for the physical harm they suffered based on the School District’s

failure to exercise reasonable care in providing teaching and coaching services.

They assert because they placed their faith and reliance in the School District,

they did not take additional steps to protect themselves.




ordinary prudence would observe in comparable circumstances.’” Doe v. Cedar Rapids
Cmty. Sch. Dist., 652 N.W.2d 439, 446 (Iowa 2002) (citation omitted). However, in Doe,
the plaintiffs were pursuing claims against the school of negligent hiring, retention, and
supervision of the teacher who sexually abused his students. Id. at 441–42. The
Lindemulders are not pursuing a claim against the School District for its own negligence
in hiring, retaining, or leaving Sarah unsupervised with Nicoletto or Grinstead. See IMT
Ins. Co. v. Crestmoor Golf Club, 702 N.W.2d 492, 498 (Iowa 2005) (Cady, J., dissenting)
(“It is fundamental that a claim for negligent supervision and retention arises out of the
employer’s own conduct. The tort does not, in any way, impose liability on the employer
for misconduct of the employee.” (citation omitted)). It is unclear from the record what
the Lindemulders contend the School District did that breached the fiduciary duty they
claim exists.
10
   Whether the School District is liable based on principles of agency for actions of its
employees will be addressed in the respondeat superior section of this opinion. The
Lindemulders’ fiduciary duty claims against Nicoletto and Grinstead, based on their
status as teachers and/or coaches, remain pending.
                                         15


       Assumed duty is described in the Restatement (Second) of Torts section

323 (1965), which provides:

                One who undertakes, gratuitously or for consideration, to
       render services to another which he should recognize as necessary
       for the protection of the other’s person or things, is subject to
       liability to the other for physical harm resulting from his failure to
       exercise reasonable care to perform his undertaking, if
                (a) his failure to exercise such care increases the risk of
       such harm, or
                (b) the harm is suffered because of the other’s reliance upon
       the undertaking.

This section only applies “when the defendant’s actions increased the risk of

harm to plaintiff relative to the risk that would have existed had the defendant

never provided the services initially.” Jain v. State, 617 N.W.2d 293, 299 (Iowa

2000) (citation omitted). In other words, “the defendant’s negligent performance

must somehow put the plaintiff in a worse situation than if the defendant had

never begun performance.” Id. (citation omitted). The defendant must have

done something to increase the risk of harm, not failed to do something. Id. In

addition, the plaintiff must show an “actual or affirmative reliance” on the actions

of the defendant that caused the plaintiff to forego other alternatives of protecting

himself. Id. (citation omitted).

       In granting summary judgment on this claim, the district court stated, “It

seems obvious, however, that providing teaching and coaching services is not a

service ‘necessary for the protection’ of any student. This asserted ‘undertaking’

simply does not fit the language of section 323.” See Restatement (Second) of

Torts § 323 (noting the doctrine of assumed duty requires that the one who

renders the service should know the service is for the protection of the other’s

person or things). The court noted the only service the School District performed
                                        16


that could arguably be said to be for the protection of the Lindemulders was to

investigate the rumors about the inappropriate relationships between Sarah and

Nicoletto and Grinstead.    The court noted there was no evidence that this

investigation “increased” the risk of harm to Sarah, see Restatement (Second) of

Torts section 323(a), or that the Lindemulders relied on the School District’s

investigation such that they did not engage other alternatives to protect Sarah.

See Jain, 617 N.W.2d at 299. The court stated there was no evidence that any

of the alternative actions the Lindemulders could have taken to protect Sarah

were discouraged by the School District’s investigation.

      In addition, the court noted that the Lindemulders’ claim was really one

that alleged the School District failed to take some action to protect Sarah.

However, any claim that the School District failed to perform an obligation to

protect Sarah does not fit within the doctrine of assumed duty, which requires

“sins of commission rather than sins of omission.” See id. (citation omitted). To

be liable under assumed duty, one must render services, not fail to render

services.

      The district court concluded:

      [The School District] did not engage in any positive undertaking to
      protect Sarah or render her any protective services, except the
      investigation previously described. That investigation did not
      increase Sarah’s risk of harm, nor did the investigation discourage
      Sarah or her parents from providing protection to her. Neither
      Sarah nor her parents suffered any harm because of reliance upon
      the investigation.
             The elements of “assumed duty” thus cannot be proven in
      this case. . . .
             The Court concludes that no material facts are in dispute
      with respect to the doctrine of assumed duty. Plaintiffs have not set
      forth any evidence which would entitle them to a jury verdict under
      such doctrine.
                                        17


Upon our review of the record, we agree. The facts as they exist in this case do

not support a conclusion that the School District assumed a duty to protect the

Lindemulders by virtue of providing teaching and coaching services.

V. Mandatory Reporting.

      Next, the Lindemulders claim it was error for the district court to grant

summary judgment on their claim of a violation by the School District of the

mandatory reporting requirements under Iowa Code section 232.69 (2011). They

claim when no teacher or coach reported the abuse as required by the

mandatory reporting law that failure resulted in a violation for the employee but

also a violation for the School District itself because the School District, as an

institution, cannot act except through individuals.        They claim Nicoletto,

Grinstead, Husted, Taylor, and Mason should have made a report. Nicoletto had

knowledge of Grinstead’s abuse, and Grinstead had knowledge of Nicoletto’s

abuse. Husted stated he did not want to know if anything was going on between

the two but adamantly told Grinstead to cease any behavior that appeared

inappropriate. Sarah claims Taylor was present to see kissing and hand-holding

between her and Grinstead, but again, there is no statement by Taylor in the

record to confirm or deny this allegation.    Mason observed her vehicle near

Grinstead’s home and told Grinstead that it did not look good.

      Iowa Code section 232.69 requires certain individuals to report child

abuse if the person reasonably believes the child has suffered abuse. A violation

of this mandatory reporting duty is a simple misdemeanor pursuant to section

232.75(2). In order to be criminally liable, a person must knowingly fail to report

or knowingly interfere with an investigation. Iowa Code § 232.72(2). Thus, for a
                                          18


person to have committed a violation under section 232.75, intentional conduct is

required. An employer is responsible for the intentional tortious conduct of its

employees only if the tort “was done in furtherance of the employer’s business or

was intended, in part, for the employer’s benefit. The intentional tort must have

been calculated to facilitate the employer’s business, or actuated by a purpose to

serve the employer’s interests.” 30 C.J.S. Employer—Employee § 234 (2016).

        There are no facts to support the conclusion that the individual teachers’

or administrator’s failure to report the abuse in this case was done to further the

School District’s business or for the benefit of the School District. Rather, the

record supports the conclusion that the School District fulfilled its obligation to

ensure all employees obtained the necessary education on the mandatory

reporting requirements and had in place an employee policy for reporting child

abuse. Thus, assuming without deciding the information the individual teachers

or coaches had in this case triggered their mandatory duty to report the

information to the appropriate authorities, the individuals’ actions, or rather their

inaction, cannot be imputed to the School District through vicarious liability.

VI. Foreseeability to Support a Claim Based on Respondeat Superior.

        Finally, the Lindemulders claim the School District should be liable for their

damages based on Nicoletto’s and Grinstead’s employment with the School

District.   They claim the facts show some of the abuse occurred on school

property and at school-sponsored events, and Nicoletto and Grinstead had

access to Sarah by virtue of their official positions with the School District. They

argue this should translate to the School District being vicariously liable for the

abuse Sarah sustained, even if it is clear that the abuse was not authorized by
                                         19


the School District. The Lindemulders also claim the court should have left the

question of whether the abuse was within the scope of employment for the jury,

despite the fact it departed markedly from the School District’s business. They

assert, based on the facts in the record, the jury could reasonably conclude the

sexual relationships stemmed from Nicoletto’s and Grinstead’s district-sanctioned

roles.

         “[U]nder the doctrine of respondeat superior, an employer is liable for the

negligence of an employee committed while the employee is acting within the

scope of his or her employment.” Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa

1999). Two elements must be proven for a claim of vicarious liability: “proof of an

employer/employee relationship, and proof that the injury occurred within the

scope of that employment.” Id. (citation omitted). There is no dispute that both

Nicoletto11 and Grinstead were employed by the School District when the sexual

activity occurred.     Thus, the question turns on whether the conduct was

perpetrated within the scope of employment.

         [F]or an act to be within the scope of employment the conduct
         complained of “must be of the same general nature as that
         authorized or incidental to the conduct authorized.” Thus, an act is
         deemed to be within the scope of one’s employment “where such
         act is necessary to accomplish the purpose of the employment and
         is intended for such purpose.”

Id. (citations omitted).

         Although the question of whether an act is within the scope of
         employment is ordinarily a jury question, depending on the
         surrounding facts and circumstances, the question as to whether


11
   Nicoletto was employed under a coaching authorization. See footnote 1 for a
discussion on Nicoletto’s status as a “school employee” for the purposes of Iowa Code
section 709.15 (2009).
                                           20


       the act which departs markedly from the employer’s business is still
       within the scope of employment may well be for the court.

Id. at 706 (quoting Sandman v. Hagan, 154 N.W.2d 113, 118 (Iowa 1967)).

       In Godar, our supreme court determined the school could not be held

vicariously liable for the sexual abuse perpetrated by the curriculum director of a

school on a student. Id. at 706–07. The abuse was not of the same general

nature as the curriculum director’s job duties, nor was the abuse done in the

furtherance of his duties as the curriculum director. Id. at 706. The sexual abuse

was a substantial deviation from his duties and substantially different in nature

from what the school had authorized the curriculum director to do. Id. While his

job gave him the opportunity to become acquainted with the victim, that did not

support a finding that the conduct furthered the educational objectives of the

school. Id. at 707. The court also stated, “[T]he fact that the abuse occurred on

school district property does not make the school district automatically liable for

abuse by its employee. Nor is it sufficient to show the abuse would not have

occurred but for [the curriculum director’s] employment by the school district.” Id.

The court concluded:

              There simply was no evidence to show that [the curriculum
       director’s] alleged conduct was expected, foreseeable, or
       sanctioned by the school district. We do not believe that sexual
       abuse by a teacher is a “normal” risk associated with the objectives
       of educating students such that it should be a risk that should be
       borne by the school district.

Id.

       In   granting   the   School     District   summary   judgment   against   the

Lindemulders’ claims based on vicarious liability for the actions of Nicoletto and

Grinstead, the district court stated:
                                        21

              Applying the Godar analysis to the instant case, it is obvious
      to the Court that Grinstead and Nicoletto were not acting in
      furtherance of their teaching and coaching duties to the school
      district when they sexually abused Sarah Lindemulder. Nothing
      about this sexual abuse was necessary to accomplish the purpose
      of their employment or intended for that purpose.              Rather,
      Grinstead and Nicoletto were indulging their own individual selfish
      and lustful purposes and desires. In no way was their conduct
      motivated by “a purpose to serve the master.” The sexual behavior
      Grinstead and Nicoletto engaged in was a “substantial deviation
      from their duties” and “substantially different” from the duties
      authorized by the school district.
              Nor is there any evidence that Grinstead or Nicoletto’s
      conduct was in any way “expected” or “sanctioned” by the school
      district.

The court went on to analyze whether the conduct was “foreseeable” in light of

the Lindemulders’ claim the School District was put on notice in many ways that

Sarah was having an inappropriate relationship with Nicoletto and Grinstead and

turned a blind eye. The court concluded:

              There is basically no evidence whatsoever in the record
      presented to the Court that the DCCSD School Board was ever
      notified of a suspected inappropriate relationship between Sarah
      and either Nicoletto or Grinstead. The information allegedly
      available to Principal Graves was as follows: (1) the DCCSD
      superintendent heard a rumor that Sarah and Grinstead were seen
      at a movie together; (2) Coach Husted had seen Sarah and
      Grinstead whispering in a hotel hallway together while at a track
      meet and the coach had confronted Grinstead; (3) Coach Husted
      had authorized Sarah and Grinstead to leave the track meet to get
      a sandwich together and they had been involved in a motor vehicle
      traffic accident; (4) a parent called to report a rumor that Sarah and
      Nicoletto were involved in an inappropriate relationship.
              ....
              Under this record, it is impossible to say that the principal or
      the Davis County School Board should have foreseen that Nicoletto
      and Grinstead would engage in sex acts with Sarah. No one who
      made any reports to Principal Graves even alleged that there had
      been any inappropriate touching between Sarah and these men, let
      alone sexual assault. Sarah lied about her relationships with both
      men and Principal Graves alleges he found her to be credible. The
      Court finds that a relationship which is actively concealed is not
      foreseeable.
                                        22


               ....
               . . . [T]his Court concludes that in this case the DCCSD
       could not and should not have foreseen the relationship between
       Sarah and Nicoletto or Grinstead. This conclusion is based upon
       the fact that these three concealed the existence of such a
       relationship, and no other district employees reported direct,
       concrete observations of any sexual nature. Indeed, . . . none of
       the rumors brought to Principal Graves’s attention concerned any
       sexual conduct or contact between these parties. When the parties
       denied any inappropriate relationship, Principal Graves was left
       with little further recourse. His investigation was essentially at a
       standstill. Closer vigilance could have had no effect. Principal
       Graves certainly never indicated to Sarah, Grinstead, or Nicoletto
       that sexual behavior would be acceptable or condoned by the
       school district.

       We agree with the district court’s analysis. The fact that some of the

sexual activity occurred on school property and at school-sponsored events does

not impose strict liability on the School District or prove the inappropriate

relationships would not have happened but for the employment relationship. See

id.   In addition, there are no facts in dispute to generate a jury question of

whether the conduct perpetrated by Nicoletto and Grinstead was within the scope

of employment. The court properly granted summary judgment to the School

District for all claims the Lindemulders alleged against the School District that

were based on the vicarious liability of Nicoletto and Grinstead.

VII. Conclusion.

       We find no error in the district court’s grant of summary judgment in favor

of the School District in this case. The court correctly concluded there was no

factual dispute that the School District did not have actual notice of the sexual

abuse and harassment so as to support a claim under Title IX. We agree with

the court’s conclusion there were no facts to support a claim the School District

had a fiduciary relationship or assumed a duty of care to protect Sarah.        In
                                       23


addition, assuming without deciding the individual teachers and coaches

implicated in this case had enough information to trigger their mandatory duty to

report the information, the facts in this case do not support the conclusion the

school would be vicariously liable for the inaction of these educators. Finally,

there is no factual dispute regarding whether Grinstead and Nicoletto were acting

within the scope of their employment or whether their actions were foreseeable

under a claim based on respondeat superior.

      AFFIRMED.
