                IN THE SUPREME COURT OF IOWA
                      No. 104 / 05-1103 / 05-1110

                          Filed March 30, 2007


MYRON J. RAAS,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


MARK TRUNECEK,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Linn County, Thomas M.

Horan, Judge.



      Plaintiffs in separate suits against State appeal from district court

orders sustaining State’s motions to dismiss. DECISION OF COURT OF

APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED AND

REMANDED AS TO PLAINTIFF RAAS AND AFFIRMED AS TO PLAINTIFF

TRUNECEK.



      Hugh G. Albrecht of Tom Riley Law Firm, P.L.C., Cedar Rapids, for

appellants.
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      Thomas J. Miller, Attorney General, and William A. Hill, Assistant

Attorney General, for appellee.
                                       3

LARSON, Justice.

      This appeal involves separate suits against the State by Myron J.

Raas and Mark Trunecek arising out of the escape of two inmates from the

state prison system. The State moved to dismiss the petitions under Iowa

Rule of Civil Procedure 1.421(1)(a) and (f) on the grounds the court lacked

jurisdiction and the plaintiffs failed to establish a duty of care. The district

court sustained the motions to dismiss. Plaintiffs appealed separately, and

we consolidated the cases. The court of appeals reversed, and we granted

further review. We now vacate the decision of the court of appeals, affirm

the judgment of the district court as to Trunecek, and reverse and remand

the judgment of the district court as to Raas.

      I. Facts and Prior Proceedings.

      Because the cases were resolved under motions to dismiss, the only

facts to be considered are those appearing on the face of the plaintiffs’

petitions. Mark Trunecek and Myron Raas were injured by two inmates

who escaped from the Iowa Medical and Classification Center in Oakdale,

Iowa. Raas was attacked while in the parking lot of the Oakdale facility,

where he had gone to visit a family member. Trunecek was attacked by the

prisoners as he was fishing in the Iowa River near Swan Lake Road in

Johnson County. The plaintiffs alleged that the prisoners’ escape occurred

as a result of the State’s negligence in failing to properly supervise the

inmates and failing to properly maintain and secure the facility.           For

purposes of reviewing the order dismissing the case under rule 1.421(1), we

assume the facts alleged in the petitions are true.

      II. Standard of Review.

      We review orders sustaining motions to dismiss for correction of

errors at law. Pennsylvania Life Ins. Co. v. Simoni, 641 N.W.2d 807, 810

(Iowa 2002). An order granting a motion to dismiss will be upheld only if
                                       4

the petition, on its face, fails to state a cause of action upon which relief

could be granted under any circumstances. Fitzpatrick v. State, 439 N.W.2d

663, 665 (Iowa 1989) (affirming order dismissing plaintiff’s suit for damages

based on injury caused by parolee from Iowa penitentiary). On a motion to

dismiss, the petition should be construed in the light most favorable to the

plaintiff, with all doubt resolved in the plaintiff’s favor. Id.

      III. Discussion.

      To establish the plaintiffs’ claims of negligence, they must prove that

(1) the State owed them a duty of care, (2) the State breached or violated

that duty of care, (3) its breach or violation was a proximate cause of their

injuries, and (4) damages. Kolbe v. State, 625 N.W.2d 721, 725 (Iowa 2001).

The issue in this case is whether the first requirement—a duty to the

plaintiffs—was satisfied.

      A. The statutory-duty argument. The plaintiffs argue that the State’s

statutorily imposed responsibility for the care of prisoners necessarily

includes a duty to prevent their escape.           Under Iowa Code section

904.102(4) (2003),

            [t]he Iowa department of corrections is established to be
      responsible for the control, treatment, and rehabilitation of
      offenders committed under law to the following institutions:
             ....
             4. Iowa medical and classification center.

      Obviously, this statute does not expressly provide a cause of action

for a breach of the State’s duty. We, therefore, must decide if a cause of

action is implied. In Kolbe, 625 N.W.2d 721, we stated that, when a private

cause of action is not expressly granted by statutes or administrative rules,

      [w]e . . . must employ the following four-factor test to determine
      whether a private cause of action against the State may be
      implied from the statute:
                                     5
                  (1) Is the plaintiff a member of the class for whose
            benefit the statute was enacted? (2) Is there any
            indication of legislative intent, explicit or implicit, to
            either create or deny such a remedy? (3) Would
            allowing such a cause of action be consistent with the
            underlying purpose of the legislation? (4) Would the
            private cause of action intrude into an area over which
            the federal government or a state administrative agency
            holds exclusive jurisdiction?

Kolbe, 625 N.W.2d at 726–27 (quoting Marcus v. Young, 538 N.W.2d 285,

288 (Iowa 1995)).

      The “most relevant inquiry” is whether there is any indication of

legislative intent to create a private cause of action. Id. at 727; accord

Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S. Ct. 2479, 2489,

61 L. Ed. 2d 82, 96 (1979). The plaintiffs have not argued any of the Kolbe

factors that would support a private cause of action under the statute.

Most significantly, they have failed to point to any statutory language or

administrative rule concerning responsibility for prisoners that suggests the

legislature intended to create a private cause of action when it enacted

section 904.102(4). Furthermore, we have held that the State Tort Claims

Act, Iowa Code chapter 669, does not create any new causes of action, but

only allows suits against the state that are allowed at common law against

private individuals. Kolbe, 625 N.W.2d at 725; Engstrom v. State, 461

N.W.2d 309, 314 (Iowa 1990). The State Tort Claims Act merely

      gives recognition to and a remedy for a cause of action already
      existing by reason of a wrong done but for which redress could
      not previously be had because of the common law doctrine of
      governmental immunity.

Graham v. Worthington, 259 Iowa 845, 861, 146 N.W.2d 626, 637 (1966);

accord Sanford v. Manternach, 601 N.W.2d 360, 370 (Iowa 1999). We reject

the plaintiffs’ argument that they have a statutory basis for a cause of

action against the State.
                                       6

      B. The common-law duty argument. The plaintiffs argue that the

State owes them a common-law duty of care on which a cause of action

may be based. In determining whether a defendant owes a legal duty to a

plaintiff, three factors usually control: (1) the relationship between the

parties, (2) reasonable foreseeability of harm to the person who is injured,

and (3) public policy considerations. Kolbe, 625 N.W.2d at 728.

      The State argues that the public-duty doctrine precludes liability

because any duty owed by the State is to the public at large, not to

individuals such as these plaintiffs. Under the public-duty doctrine, “ ‘if a

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

member of that group.’ ” Id. at 729 (quoting Wilson v. Nepstad, 282 N.W.2d

664, 667 (Iowa 1979)).

      We have routinely held that a breach of duty owed to the public
      at large is not actionable unless the plaintiff can establish,
      based on the unique or particular facts of the case, a special
      relationship between the State and the injured plaintiff
      consistent with the rules of Restatement (Second) of Torts
      section 315.

Kolbe, 625 N.W.2d at 729.

      C. Status of the public-duty doctrine. We must first decide whether

the public-duty doctrine is still viable in Iowa in view of our adoption of the

State Tort Claims Act, Iowa Code chapter 669. Section 669.4 provides that,

            [t]he state shall be liable in respect to such claims to the
      same claimants, in the same manner, and to the same extent
      as a private individual under like circumstances, except that
      the state shall not be liable for interest prior to judgment or for
      punitive damages.

Exceptions to state liability are listed in section 669.14. However, the list of

exceptions does not include claims subject to the public-duty doctrine. The

plaintiffs argue the absence of a public-duty doctrine exception to state
                                       7

liability indicates that the legislature did not intend for the State Tort

Claims Act and the public-duty doctrine to coexist. Their claim is that

      [t]he “Public Duty Doctrine” is inconsistent and incompatible
      with the waiver of sovereign immunity [under] the State Tort
      Claims Act. Courts should no longer judicially impose this
      doctrine to prohibit [plaintiffs] . . . from seeking redress against
      the State for the wrongful actions of its employees.

In making this argument, the plaintiffs equate sovereign immunity with the

lack of a duty under the public-duty doctrine. However, the principles

involved are not the same.

             The public duty rule provides that where a municipality
      has a duty to the general public, as opposed to a particular
      individual, breach of that duty does not result in tort liability.
      The rule protects municipalities from liability for failure to
      adequately enforce general laws and regulations, which were
      intended to benefit the community as a whole. The public duty
      rule is not technically grounded in government immunity,
      though it achieves much the same results. Unlike immunity,
      which protects a municipality from liability for breach of an
      otherwise enforceable duty to the plaintiff, the public duty rule
      asks whether there was any enforceable duty to the plaintiff in
      the first place.

18 Eugene McQuillin, McQuillin on Municipal Corporations § 53.04.25 (3d ed.

2006).

      Our cases decided after the adoption of the State Tort Claims Act

continue to recognize the public-duty doctrine, and with the exception of

the Wilson and Adam cases discussed below, they have clearly upheld the

continued validity of the doctrine. See, e.g., Summy v. City of Des Moines,

708 N.W.2d 333, 344 (Iowa 2006); Kolbe, 625 N.W.2d at 729; Sankey v.

Richenberger, 456 N.W.2d 206, 209 (Iowa 1990); Bockelman v. State, 366

N.W.2d 550, 554 (Iowa 1985); Cubit ex rel. Cubit v. Mahaska County, 670

N.W.2d 430, 2003 WL 21920399, at *2 (Iowa Ct. App. 2003); Donahue v.

Washington County, 641 N.W.2d 848, 851 (Iowa Ct. App. 2002); Allen v.

Anderson, 490 N.W.2d 848, 856 (Iowa Ct. App. 1992).
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      The plaintiffs contend that our prior cases of Wilson, 282 N.W.2d 664,

and Adam v. State, 380 N.W.2d 716 (Iowa 1986), cast doubt on the

continued validity of the public-duty doctrine.       However, in Kolbe we

distinguished Wilson and Adam on the basis that the statutes involved in

those cases were not aimed at the protection of the public in general (as

required by the public-duty doctrine), but to narrow groups of persons,

thereby establishing special relationships and making the public-duty

doctrine inapplicable. Kolbe, 625 N.W.2d at 729. Contrary to the plaintiffs’

argument, Wilson and Adam did not eliminate the public-duty doctrine.

      In Kolbe we recognized that the public-duty doctrine is still viable

despite enactment of the State Tort Claims Act: “Because we conclude there

was no . . . duty [under the public-duty doctrine], we need not address the

immunity issue.” Kolbe, 625 N.W.2d at 725. Although, as the plaintiffs

point out, other jurisdictions have held their tort claims statutes to have

abrogated the public-duty doctrine in those jurisdictions, we conclude that

both doctrines are alive and well in Iowa.

      D. Claimed basis of common-law liability. The plaintiffs acknowledge

that generally a person has no duty to control the conduct of others.

However, they argue that there are “special relationships” between

themselves and the State that make the general rule inapplicable. They

also contend that special relationships make the public-duty doctrine

inapplicable. See id. at 729. In support of these arguments, the plaintiffs

rely principally on two provisions of the Restatement (Second) of Torts.

Under section 315,

      [t]here is no duty so to control the conduct of a third person as
      to prevent him from causing physical harm to another unless
             (a) a special relation exists between the actor [State] and
      the third person [prisoner] which imposes a duty upon the
      actor to control the third person’s [prisoner’s] conduct, or
                                      9
            (b) a special relation exists between the actor [State] and
      the other [victim] which gives to the other [victim] a right to
      protection.

Restatement (Second) of Torts § 315 (1965) [hereinafter Restatement].

Additionally, section 319 provides:

      One [State] who takes charge of a third person [prisoner] whom
      he knows or should know to be likely to cause bodily harm to
      others [victims] if not controlled is under a duty to exercise
      reasonable care to control the third person [prisoner] to prevent
      him from doing such harm.

      We have considered Restatement section 319 in tandem with section

315 in several cases, including Leonard v. State, 491 N.W.2d 508, 510-11

(Iowa 1992); Sankey, 456 N.W.2d at 209; and Fitzpatrick, 439 N.W.2d at

666-67. In Leonard a mental health patient, Parrish, was released by the

state. The patient assaulted Leonard, a member of the public, who sued the

state hospital, claiming a breach of duty under Restatement sections 315

and 319. We said:

             There can be little doubt that a special relationship
      existed between Parrish [the patient] and his treating physician
      at MHI [the state hospital]. His continuing involuntary
      commitment only serves to reinforce that bond. Therefore MHI
      had a duty to control Parrish’s conduct, or at least not
      negligently release him from custody. But the Restatement rules
      cited above [sections 315 and 319] do not answer the precise
      question before us: Does the duty to refrain from negligently
      releasing dangerous persons from custody run from the
      custodian to the public at large or only to the reasonably
      foreseeable victims of the patient’s dangerous tendencies?

Leonard, 491 N.W.2d at 511 (emphasis added). We answered the question

this way:

             In analogous cases in Iowa, this court has viewed the
      duties described in Restatement sections 315 and 319 quite
      narrowly, guided by the principle that the scope of the duty
      turns on the foreseeability of harm to the injured person. See,
      e.g., Sankey, 456 N.W.2d at 209-10 (neither city ordinance nor
      common law imposed duty upon police chief to protect city
      officials from shooting spree in city council chambers);
      Fitzpatrick v. State, 439 N.W.2d 663, 667-68 (Iowa 1989) (parole
                                       10
         officer had no legal duty to police officer injured by parolee)
         ....
               The foregoing cases also reflect strong public policy
         concerns about the potential for limitless liability when an
         individual’s decision might affect the general public.

Id. at 511-12. Under the Leonard line of cases, the State’s duty to protect

victims from injury inflicted by escaped patients or prisoners extends only

to those persons who are reasonably foreseeable as victims.

         IV. Disposition.

         The plaintiff, Raas, alleged he

         was lawfully in the parking lot of the Oakdale Facility having
         gone to the facility that day during the regularly scheduled
         visiting hours to visit a family member incarcerated at the
         facility.

         Assuming this allegation to be true, and viewing it in the light most

favorable to Raas, as we are required to do, we believe it is sufficient to

allege his status as an invitee and, as such, a person who was reasonably

foreseeable as a victim. Under Leonard he has therefore stated a sufficient

cause of action by establishing a special relationship. We therefore reverse

the district court’s order dismissing his case.

         In contrast, according to Trunecek’s petition, he was not on the

premises of the facility, but was fishing in the Iowa River. We conclude

that, even giving his petition the most favorable interpretation, he has not

alleged the status of a foreseeable victim, but only a member of the public at

large.    As such, he may not claim a special relationship sufficient to

establish a cause of action.        We therefore affirm the district court’s

dismissal of his case.

         DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF

DISTRICT COURT REVERSED AND REMANDED AS TO PLAINTIFF RAAS

AND AFFIRMED AS TO PLAINTIFF TRUNECEK.

         All justices concur except Hecht and Appel, JJ., who take no part.
