S.O., J.O., and E.O., by and through their father, J.O. Sr., Plaintiff s - Appellants, vs. CARLISLE SCHOOL DISTRICT, VALERIE McCHAUGHEY and DR. TOM LANE, Defendant s - Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 8-917 / 07-2096
Filed March 11, 2009
S.O., J.O., and E.O., by and through
their father, J.O. Sr.,
Plaintiffs-Appellants,
vs.
CARLISLE SCHOOL DISTRICT,
VALERIE McCHAUGHEY and
DR. TOM LANE,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Peter A. Keller,
Judge.
Plaintiffs appeal the district court‟s ruling granting defendants‟ motion for
summary judgment on the ground that plaintiffs‟ action was barred by the statute
of limitations. REVERSED AND REMANDED.
Ron Danks and Phillip H. Myers of Myers, Myers & Danks, Pleasantville,
and Brett J. Beattie of Beattie Law Firm, P.C., Des Moines, for appellant.
Amy R. Teas and Patrick D. Smith of Bradshaw, Fowler, Proctor &
Fairgrave, P.C., Des Moines, for appellee.
Heard by Mahan, P.J., and Miller and Doyle, JJ.
2
DOYLE, J.
Plaintiffs appeal the district court‟s ruling granting defendants‟ motion for
summary judgment on the ground that plaintiffs‟ action was barred by the statute
of limitations.
Plaintiffs contend the district court erred in holding that:
(1) plaintiffs‟ claims premised upon the civil liability provisions of Iowa Code
section 232.75(2) (2005) were barred by the limitations period set forth in chapter
670; (2) the continuing tort doctrine did not apply to defendants McChaughey and
Lane‟s alleged failure to report; and (3) chapter 670 does not violate the Iowa
and United States equal protection clauses when read to omit the minor tolling
provision of section 614.8(2). Upon our review, we reverse the judgment of the
district court and remand for further proceedings.
I. Background Facts and Proceedings.
On November 30, 2006, plaintiffs S.O., J.O., and E.O., minors and siblings
(collectively hereinafter “plaintiffs”), filed suit by and through their father, J.O. Sr.,
against the Carlisle School District (“School District”) and two of its employees:
Valerie McChaughey, a licensed teacher, and Dr. Tom Lane, a principal and
licensed administrator (collectively hereinafter “defendants”). Plaintiffs‟ petition
alleged the following facts: During the 2001-02 school year, plaintiff S.O. was a
kindergartner in McChaughey‟s class in the school district.
While under
McChaughey‟s supervision, S.O. was repeatedly involved in improper sexual
contact with another kindergartner during naptime. The improper sexual contact
was reported to Lane by the foster mother of the other student involved in the
contact, and McChaughey subsequently learned of the report.
Lane and
McChaughey failed to investigate the improper sexual contact and failed to report
3
the contact to S.O.‟s parents. S.O. did not disclose the improper sexual conduct
he was subjected to in kindergarten until approximately eighteen months after
Lane and McChaughey learned of the contact (approximately September 2003).
As a result of the sexual activity engaged in while S.O. was a student in
McChaughey‟s classroom, S.O. experienced severe emotional, social, and
educational difficulties.
Based upon these alleged facts, plaintiffs‟ petition specifically asserted
claims for breach of fiduciary duty (Count I) and intentional infliction of emotional
distress (Count III) against defendants, and a claim of negligent supervision
(Count II) against the School District. Plaintiffs sought punitive damages for each
of these claims.
Additionally, plaintiffs alleged McChaughey and Lane were
civilly liable pursuant to Iowa Code section 232.75(2) for damages proximately
caused by their failure to report the alleged abuse as required under chapter
232.1
On September 13, 2007, defendants filed their motion for summary
judgment. Defendants argued that plaintiffs‟ claims were governed by Iowa Code
chapter 670 and its corresponding statute of limitations, as clarified by the Iowa
1
Although plaintiffs did not expressly assert a claim under section 232.75 or even
reference chapter 232 in their petition, the district court determined in its ruling that
plaintiffs‟ petition “[laid] out the elements required” of a chapter 232 claim because
plaintiffs‟ petition alleged that McChaughey and Lane “failed to investigate” and “failed to
report” the alleged sexual conduct. However, we question whether those alleged facts
are enough to set forth a chapter 232 claim, particularly since plaintiffs‟ petition did not
assert that the improper sexual conduct was child abuse within the definition contained
in chapter 232, plaintiffs‟ petition did not assert that McChaughey and Lane were
mandatory reporters, and plaintiffs‟ petition asserted that McChaughey and Lane failed
to report the abuse to S.O.‟s parents and not the Department of Human Services as
required by chapter 232.
See Iowa Code §§ 232.68-.70, .75. Nevertheless,
McChaughey and Lane do not challenge this determination on appeal and we therefore
do not consider it.
4
Supreme Court in Rucker v. Humboldt Community School District, 737 N.W.2d
292, 293 (Iowa 2007). Because plaintiffs did not provide timely written notice of
their claims, defendants argued that plaintiffs had two years from the date of
S.O.‟s injury to file their suit. Since plaintiffs alleged S.O.‟s injuries occurred
during the 2001-02 school year, but did not file suit until 2006, defendants
asserted that plaintiffs‟ suit was barred by the statute of limitations.
On September 28, 2007, plaintiffs filed their resistance, arguing that their
suit was not barred by the statute of limitations. Regarding their section 232.75
claims, plaintiffs first asserted that the statute of limitations provisions of chapter
670 were not applicable to chapter 232. Plaintiffs further argued that even if
chapter 670 applied to their section 232.75 claims, McChaughey‟s and Lane‟s
failure to report the alleged sexual conduct constituted a continuing wrongful tort,
and consequently, the statute of limitations would not begin to run until
McChaughey and Lane reported the conduct. Additionally, plaintiffs maintained
that the School District was vicariously liable for its employees‟ failure to meet
their duties under Chapter 232 under the doctrine of respondeat superior.
Regarding all of their claims, plaintiffs argued that chapter 670 violated the Equal
Protection Clauses of the Iowa and United States Constitutions unless it was
interpreted to include the minor tolling provision of Iowa Code section 614.8(2).
On November 14, 2007, the district court granted defendants‟ motion for
summary judgment. The court concluded chapter 670 governed actions against
a school district and its employees brought under chapter 232, and therefore
chapter 670 provided the requisite statute of limitations, as interpreted by case
law. The court determined defendants‟ failure to report the alleged conduct was
5
not a continuous tort.
The court further held the minor tolling provisions of
chapter 614 did not apply to plaintiffs‟ claims and such holding was constitutional.
The court concluded that because plaintiffs‟ alleged injury occurred sometime
during 2001-02 and plaintiffs became aware of the injury sometime in 2003, yet
did not file their action until 2006, their action was barred by the statute of
limitations.
Plaintiffs appeal.
II. Scope and Standards of Review.
We review the district court‟s summary judgment rulings for the correction
of errors at law. Iowa R. App. P. 6.4; Alliant Energy-Interstate Power & Light Co.
v. Duckett, 732 N.W.2d 869, 873 (Iowa 2007). Summary judgment is appropriate
when the pleadings, depositions, answers to interrogatories, admissions on file,
and affidavits show there is no genuine issue of material fact, and the moving
party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3);
Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 199 (Iowa 2007).
A fact question arises if reasonable minds can differ on how the issue should be
resolved. Walderbach, 730 N.W.2d at 199. “No fact question exists if the only
dispute concerns the legal consequences flowing from undisputed facts.”
McNertney v. Kahler, 710 N.W.2d 209, 210 (Iowa 2006) (citation omitted).
III. Discussion.
A. Chapter 670’s Applicability to chapter 232 Claims.
Plaintiffs first argue that the district court erred in holding that their claims
against McChaughey and Lane premised upon the civil liability provisions of Iowa
Code section 232.75(2) were barred by the limitations period set forth in chapter
6
670. Plaintiffs maintain chapter 670 is inapplicable to their section 232.75 claims
because McChaughey and Lane are personally liable for failure to report the
alleged abuse. Plaintiffs further argue that their chapter 232 claims are outside
the scope of chapter 670. For the following reasons, we disagree.
1. “Personal” Liability.
“Iowa Code chapter 670 is the exclusive remedy for torts against
municipalities and their employees.” Rucker, 737 N.W.2d at 293 (citing Iowa
Code § 670.4; City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d
11, 18 (Iowa 2000)) (emphasis added). The School District is a “municipality” as
defined by Iowa Code section 670.1(2). Claims asserted against School District
employees acting in their capacity as School District employees are subject to
Iowa Code chapter 670. See id. (citing Iowa Code § 670.2).
Section 670.12 provides that employees can be personally liable for
claims that are not exempted by section 670.4.2 However, as stated above, if the
employee is acting within the scope of his or her employment or duties, the claim
is subject to chapter 670. Rucker, 737 N.W.2d at 293 (citing Iowa Code § 670.2).
There is no provision in chapter 670 that removes claims asserted personally
against municipal employees from the scope of chapter 670, if the employee was
acting within the scope of his or her employment. Thus, if the employee is acting
within the scope of his or her employment or duties, the claim is subject to
chapter 670, even if the employee can be personally liable.
The relevant
question here is not whether the claims were personal to McChaughey and Lane.
2
However, employees of municipalities are “not liable for punitive damages as a result of
acts in the performance of a duty, unless actual malice or willful, wanton and reckless
misconduct is proven.” Iowa Code § 670.12.
7
Rather, the question is whether McChaughey and Lane were acting within the
scope of their employment when they allegedly failed to report the alleged sexual
abuse.
To protect children from abuse, chapter 232 sets forth requirements for
child abuse reporting, assessment, and rehabilitation. See Iowa Code § 232.67;
McCracken v. Iowa Dep’t of Human Servs., 595 N.W.2d 779, 784 (Iowa 1999).
“[T]he
provisions
relating
to
child
abuse
reporting,
investigation,
and
rehabilitation—sections 232.67 through 232.77—are remedial in nature and
deserve from us a liberal construction.” McCracken, 595 N.W.2d at 784.
Section 232.69 sets forth mandatory reporting requirements for:
Any of the following persons who, in the scope of professional
practice or in their employment responsibilities, examines, attends,
counsels, or treats a child and reasonably believes a child has
suffered abuse:
....
(4) A licensed school employee, certified para-educator, holder of a
coaching authorization issued under section 272.31, or an
instructor employed by a community college.
Id. § 232.69(1)(b)(4) (emphasis added).
These “mandatory reporters” are
required to make a report in cases of child abuse, as provided in the procedures
set forth in section 232.70, within twenty-four hours.
Id. § 232.69(1).
“Any
person, official, . . . or institution required by section 232.69 to report a suspected
case of child abuse who knowingly fails to do so . . . is civilly liable for the
damages proximately caused by such failure . . . .” Id. § 232.75(2) (emphasis
added).
Licensed school employees, such as McChaughey and Lane, are
mandatory reporters by virtue of their employment. Id. § 232.69(1)(b)(4). Given
8
the language of section 232.69, it is clear that a licensed school employee‟s
reporting duty arises within the scope of his or her employment.
Although
plaintiffs maintain here that McChaughey and Lane‟s duties under chapter 232
are separable from their traditional functions as a supervisor and teacher of
students, plaintiffs, in their resistance to defendants‟ motion for summary
judgment, seemingly acknowledged that McChaughey and Lane were acting
within the scope of their employment when they allegedly failed to report the
alleged abuse.3 McChaughey and Lane were acting within the scope of their
employment when they allegedly failed to report the alleged child abuse.
2. Scope of chapter 670.
Plaintiffs next contend their chapter 232 claims are outside the scope of
chapter 670, because they are not within the scope of section 670.2, among
other things.
Plaintiffs therefore argue chapter 670‟s applicable statute of
limitations do not apply to their claims. We disagree.
Iowa Code section 670.5, entitled “Limitation of actions,” provides, in
relevant part: “Every person who claims damages from any municipality or any
. . . employee . . . of a municipality for or on account of any . . . loss or injury
within the scope of section 670.2 . . . shall commence an action . . . .” (Emphasis
added). Section 670.2 provides, in relevant part: “[E]very municipality is subject
to liability for its torts and those of its officers and employees, acting within the
scope of their employment or duties, whether arising out of a governmental or
3
In their resistance, plaintiffs sought to hold the School District vicariously liable for
McChaughey and Lane‟s failure to report, stating that, “Under the doctrine of respondeat
superior, an employer, in this case [the School District], is liable for the wrongful conduct
of its employee if the conduct occurs in the scope of the employment relationship.”
(Emphasis added).
9
proprietary function. (Emphasis added.) Reading section 670.5 in conjunction
with section 670.2, it is clear section 670.5 applies to plaintiffs‟ chapter 232
claims asserted against McChaughey and Lane because McChaughey and
Lane, municipality employees, were acting within the scope of their employment
when they allegedly failed to report the alleged abuse. We conclude the district
court did not err in holding that chapter 670 is applicable to plaintiffs‟ chapter 232
claims.
B. Continuing Tort Doctrine.
Plaintiffs next contend that the district court erred in holding that the
continuing tort doctrine did not apply to McChaughey and Lane‟s alleged failure
to report the alleged child abuse. Again, we disagree.
The “continuing tort doctrine” provides that, in certain tort
cases involving continuous or repeated injuries, the statute of
limitations accrues upon the date of the last injury and that the
plaintiff may recover for the entire period of the defendant‟s
negligence, provided that an act contributing to the claim occurs
within the filing period.
54 C.J.S. Limitations of Actions § 194, at 257 (2005).
Thus, “[w]here the
wrongful act is continuous or repeated, so separate and successive actions for
damages arise, the statute of limitations runs as to these later actions at the date
of their accrual.” Riniker v. Wilson, 623 N.W.2d 220, 228 (Iowa Ct. App. 2000)
(citing Hegg v. Hawkeye Tri-County REC, 512 N.W.2d 558, 559 (Iowa 1994)).
However:
A continuing violation or tort is occasioned by continuing unlawful
acts and conduct, not by continual ill effects from an initial violation.
Thus, where there is a single overt act from which subsequent
damages may flow, the statute begins to run on the date the
defendant invaded the plaintiff’s interest and inflicted injury, and this
is so despite the continuing nature of the injury.
10
54 C.J.S. Limitations of Actions § 194, at 257 (emphasis added).
The district court found:
Under section 232.75, a person is civilly liable if they fail to report
suspected child abuse within twenty-four hours. If child abuse is
suspected, the wrongful act occurs after that twenty-four hour
period has passed and no report is made. While one may continue
not to report, as soon as twenty-four hours have passed the failure
to report has become actionable. This is not a continuous wrong;
once that time period has passed, the wrong has been committed.
We agree.
Although plaintiffs rely upon Farmland Foods, Inc. v. Dubuque
Human Rights Commission, 672 N.W.2d 733 (Iowa 2003), and Twyman v.
Twyman, 790 S.W.2d 819 (Tex. Ct. App. 1990), as establishing that the
continuous tort doctrine can be applied where there is a continuous injury, their
reliance is misplaced.
Both Farmland Foods, Inc. and Twyman involved
situations where there were multiple acts by the defendants.
See Farmland
Foods, Inc., 672 N.W.2d at 741 (applying the “continuing violation” doctrine to
hostile work environment claims involving “repeated conduct” and “acts”);
Twyman, 790 S.W.2d at 821 (applying continuing tort doctrine to extend the
statute of limitations period where husband‟s actions constituted a continuing
course of conduct.) Here, there is a single act of omission, even if plaintiffs‟
injury is continuing in nature. We conclude the district court did not err in holding
that the continuing tort doctrine did not apply to McChaughey and Lane‟s alleged
failure to report the alleged child abuse.
C. Equal Protection.
Finally, plaintiffs contend the district court erred in finding chapter 670
does not violate the Iowa and United States equal protection clauses when read
11
to omit the minor tolling provision of section 614.8(2). For the following reasons,
we agree.
At the time this action was filed, Iowa Code section 670.5 provided, in its
entirety:
Every person who claims damages from any municipality or
any officer, employee or agent of a municipality for or on account of
any wrongful death, loss or injury within the scope of section 670.2
or section 670.8 or under common law shall commence an action
therefor within six months, unless said person shall cause to be
presented to the governing body of the municipality within sixty
days after the alleged wrongful death, loss or injury a written notice
stating the time, place, and circumstances thereof and the amount
of compensation or other relief demanded. Failure to state time or
place or circumstances or the amount of compensation or other
relief demanded shall not invalidate the notice; providing, the
claimant shall furnish full information within fifteen days after
demand by the municipality. No action therefor shall be maintained
unless such notice has been given and unless the action is
commenced within two years after such notice. The time for giving
such notice shall include a reasonable length of time, not to exceed
ninety days, during which the person injured is incapacitated by his
injury from giving such notice.
Iowa Code § 670.5 (2005) (transferred from Iowa Code § 613A.5 by the editor for
Code of Iowa 1993) (emphasis added).4 By its terms, section 670.5 provides for
methods of enforcing liability of municipalities and its employees.
Id.
Furthermore, section 670.5 fixes the time within which an action for recovery may
4
Section 670.5, amended in 2007, now provides:
Except as provided in section 614.8, a person who claims damages from
any municipality or any officer, employee or agent of a municipality for or
on account of any wrongful death, loss, or injury within the scope of
section 670.2 or section 670.8 or under common law shall commence an
action therefor within two years after the alleged wrongful death, loss, or
injury.
However, this amended section only applies to “claims „arising out of an alleged death,
loss, or injury occurring on or after July 1, 2007.‟” Rucker, 737 N.W.2d at 295 (citing
2007 Iowa Acts, S.F. 384, § 6). Consequently, because plaintiffs‟ claims arise out of
acts that occurred in the 2001-02 school year, the amendments do not change the
outcome in this case.
12
be commenced. Id. At the time this action was filed, Iowa Code section 614.8(2)
provided:
Except as provided in section 614.1, subsection 9, the times limited
for actions in this chapter, except those brought for penalties and
forfeitures, are extended in favor of minors, so that they shall have
one year from and after attainment of majority within which to
commence an action.
Iowa Code § 614.8(2) (2005).
The constitutionality of Iowa Code section 670.5 and its predecessor,
section 613A.5, has been addressed by the Iowa Supreme Court multiple times
on the basis of equal protection of the law.5
The court first considered the
constitutionality of section 670.5 in Lunday v. Vogelmann, 213 N.W.2d 904 (Iowa
1973). There, a minor student brought a negligence action against a school
district, one of its employees, and the city of Denison, Iowa.
Lunday, 213
N.W.2d. at 905-06. The student admitted he did not serve notice of his claim on
either the school district or the city within sixty days after his injury, and the
school district and the city asserted the student‟s claims were barred by section
670.5. Id. at 906. The student argued that the notice requirement of section
670.5 denied him equal protection because it unreasonably put “victims of
governmental torts in a different class than victims of private torts.” Id. at 907.
The district court rejected this argument, and the Iowa Supreme Court affirmed
on appeal. Id. at 906-08. The court explained:
The purpose of the notice requirement of [section 670.5] is to
provide a method for prompt communication of time, place and
circumstances of injury so the municipality can investigate while
facts are fresh. Norland v. Mason City, 199 N.W.2d 316, 318 (Iowa
5
All references to chapter 613A and section 613A.5 will be referred to hereinafter as chapter 670
and section 670.5, respectively.
13
1972).
The basis for disparate classification of victims of
governmental and private torts is explained in Sprung v.
Ramussen, 180 N.W.2d 430, 433 (Iowa 1970) as a condition
placed by the legislature upon its abolition of sovereign immunity:
“Where, as here, the legislature has created a new right of action, it
made a legislative judgment that the cause should be brought
within a specified time. This difference doubtlessly arises from the
fact the statute we are here interpreting is in derogation of
sovereign immunity and that the legislature might, and did, properly
restrict and limit the application of the statute.”
We recognized the same legislative prerogative in relation to
its abrogation of state tort immunity in Graham v. Worthington, 259
Iowa 845, 863-864, 146 N.W.2d 626, 638 (1966).
The fundamental motivation attributed to legislatures which
have enacted such notice requirements is that where a
governmental subdivision is involved the public has an interest it
does not have as to claims against private persons in seeing
prompt and thorough investigation of claims is made. This protects
the public treasury from stale claims.
Thomann v. City of
Rochester, 230 App. Div. 612, 245 N.Y.S. 680 (1930). It permits
prompt settlement of meritorious claims and facilitates planning of
municipal budgets. King v. Johnson, 47 Ill.2d 247, 265 N.E.2d 874
(1970). The notice requirement also ensures that notices reach the
public officers with responsibility to deal with them and in many
instances should enable such officers to remedy defects in far-flung
municipal property before other persons are injured.
We are unable and unwilling to say [section 670.5] is
patently arbitrary and bears no rational relationship to a legitimate
governmental interest. [The student] has not met his burden to
prove the statute is unconstitutional.
Id. at 907-08. The Iowa Supreme Court affirmed its holding in Lunday in Shearer
v. Perry Community School District, 236 N.W.2d 688, 693 (Iowa 1975) (“We
believe that reasoning to be sound and dispositive of the identical issue in the
instant case.”).
The constitutionality of section 670.5 was again raised in Harryman v.
Hayles, 257 N.W.2d 631 (Iowa 1977). In Harryman, a minor car passenger was
severely injured when the truck in which he was riding overturned after striking a
washed-out portion of a county road. Harryman, 257 N.W.2d at 633. The minor
14
and his parents brought suit against the county and various county employees;
however, their suit was not brought within three months nor was notice given the
defendants within sixty days of the minor‟s injury as required by section 670.5.
Id. at 634.
The defendants moved for dismissal based upon the statute of
limitations, and the plaintiffs in turn asserted that section 670.5 was
unconstitutional. See id. at 633-34. The district court granted the defendants‟
motion and dismissed plaintiffs‟ petition. Id. at 633.
On appeal, the Iowa Supreme Court immediately rejected plaintiffs‟
argument that section 670.5 was unconstitutional on its face, finding Lunday and
Shearer to be dispositive of that issue. Id. at 634. However, the minor also
argued that section 670.5 was unconstitutional as applied to him, because he
was incapacitated from filing suit or giving notice due to his severe injuries, and
the court agreed.
Id.
Although the court had previously upheld the statute
against general constitutional attacks, it found a new constitutional issue was
presented by the minor‟s argument, whether:
The statute offends both the equal protection and due process
clauses because it denies to some incapacitated claimants (those
whose incapacity extends beyond [ninety] days) the same
consideration it gives to other incapacitated claimants (those whose
incapacity is less than [ninety] days).
Id. Based upon this issue, the court determined that:
[T]his provision cannot withstand an equal protection challenge.
While there is no requirement all must be treated alike in order to
satisfy equal protection standards under the 14th Amendment, the
differences in classification must be reasonable and bear some
relationship to a legitimate state interest. We have considered
every possible hypothesis under which this statute might be
sustained. We are unable to save a provision under which some
injured claimants are allowed to recover from their incapacity before
being required to give notice of claim while others identically
15
situated except as to the severity of their injuries are denied that
same right. The statute now creates two classes of incapacitated
persons solely on the basis of how badly they have been hurt.
If incapacitated claimants are to be allowed a “reasonable”
extension of time to give notice, all incapacitated claimants must be
treated the same. This statute is fatally bad because it fails to
satisfy this requirement.
We believe a proper result can be obtained by excising from
[section 670.5] the words “not to exceed [ninety] days.” This would
eliminate the offensive part of the section, leaving intact the main
purpose of the statute and giving effect to the clear intention of the
legislature that incapacitated claimants be given a reasonable time
to notify the governmental defendant of the injury.
Id. at 634-35. The court found section 670.5 to be “a valid and enforceable
statute except for the words „not to exceed [ninety] days,‟” and then struck those
words from the statute. Id. at 635. Thus, the effect of Harryman was to reform
the last sentence of section 670.5 so it essentially read: “The time for giving
such notice shall include a reasonable length of time during which the person
injured is incapacitated by his injury from giving such notice and sixty days
following termination of such incapacitation.” Enochs v. City of Des Moines, 314
N.W.2d 378, 380 (Iowa 1982).
The Iowa Supreme Court again visited the constitutionality of 670.5 in
Franks v. Kohl, 286 N.W.2d 663 (Iowa 1979). The plaintiff, an employee of the
city, was injured while riding on one of its garbage trucks driven by co-employee
when the driver allegedly drove to the left side of a street, bringing the plaintiff
into collision with a street sign that was allegedly negligently placed by another
city employee. Franks, 286 N.W.2d at 664. The plaintiff brought suit against the
city and the two city employees, however, the plaintiff did not give the written
notice prescribed by section 670.5 to the defendants. Id. The defendants moved
for summary judgment, and the district court granted their motion.
Id.
On
16
appeal, the plaintiff argued that section 670.5 was unconstitutional on the basis
of equal protection of the law, among other things. Id. at 664-67.
Regarding the plaintiff‟s claims against the city, the court found that
section 670.5, when applied to the plaintiff, did not deny him equal protection,
relying upon its decisions in Lunday and Shearer. Id. at 666 (“We thoroughly
considered the constitutional issues in those decisions. We adhere to those
pronouncements and find no necessity to repeat the analysis.”). The court also
rejected the plaintiff‟s equal protection challenge to section 670.5 as applied to
his claims against the city‟s employees, concluding the plaintiff had “not
established that section [670.5] in the context of claims against municipal
employees acting in the course of employment is capricious, patently arbitrary, or
without rational relationship to a legitimate governmental interest.” Id. at 670-71.
In Miller v. Boone County Hospital, 394 N.W.2d 776 (Iowa 1986), the Iowa
Supreme Court again visited the constitutionality of section 670.5 on the basis
that it “violates equal protection because it creates an impermissible class:
plaintiffs injured by local governments vis-à-vis plaintiffs injured by private
[tortfeasors].”
Miller, 394 N.W.2d at 776-77.
In Miller, a mother filed a
negligence action against the Boone County Hospital individually and on behalf
of her minor son. Id. at 777. Because the plaintiffs did not comply with the notice
provision of section 670.5, the district court granted the hospital‟s motion for
summary judgment. Id.
On appeal, the plaintiffs argued that section 670.5 was unconstitutional on
the basis of a violation of equal protection. Id. In a five-to-four decision, the Iowa
Supreme Court reversed and remanded. Id. The court first noted:
17
The court in Sprung v. Rasmussen, 180 N.W.2d 430, 433
(Iowa 1970) incorrectly characterized [section 670.5] as a statute of
creation rather than a statute of limitations. With the greater power
to create a right of action, it was thought, comes the lesser power to
condition it:
“Where, as here, the legislature has created a new
right of action, it made a legislative judgment that the
cause should be brought within a specified time. This
difference doubtlessly arises from the fact the statute
. . . is in derogation of sovereign immunity and that
the legislature might, and did, properly restrict and
limit the application of the statute.”
180 N.W.2d at 433; accord Harryman, 257 N.W.2d at 636; Dan
Dugan Transport Co. v. Worth County, 243 N.W.2d 655, 657 (Iowa
1976); Lunday, 213 N.W.2d at 907.
Whether or not a right of action was created in chapter [670]
is irrelevant to the constitutionality of its notice requirement. See
Turner v. Staggs, 89 Nev. 230, 239, 510 P.2d 879, 885 (1973)
(Zenoff, J., concurring); Note, 60 Cornell L. Rev. [417, 440 (1975)].
Cf. Turner v. Turner, 304 N.W.2d 786, 787 (Iowa 1981) (“to the
extent [parental] immunity is abrogated it does not create a new
liability . . . [but] merely removes a judicially imposed barrier to
recovery”). We should not conclusively presume, as Lunday
implied by quoting Sprung, 213 N.W.2d at 907, the provisions of
chapter [670] are constitutional merely because they resulted from
legislative enactment. With one justice changing his vote, the court
in Boyer [v. Iowa High School Athletic Association, 256 Iowa 337,
349, 127 N.W.2d 606, 613 (1964)] would have abrogated immunity
of local governments three years earlier than did the legislature.
Thus, “there is no sanctity” to the notice requirement. O’Neil v. City
of Parkersburg, 237 S.E.2d 504, 507 (W. Va. 1977).
To defer to the legislature because it has provided liability for
the negligence of the State‟s political subdivisions is to say every
condition imposed, no matter how harsh, may never be questioned.
The analysis in Sprung and its progeny begs the question of
constitutionality.
Id. at 778. The court then asked, “[i]n light of present day conditions, does the
classification in issue bear any rational relationship to the interests underlying
section [670.5]?” Id. at 779. To determine the answer, the court looked at the
four interests mentioned in Lunday: stale claims, planning of budgets, settling of
18
valid claims, and repair of defective conditions. Id. at 779-80. Ultimately, the
court concluded:
[T]hese interests no longer furnish any rational basis justifying the
classification resulting from section [670.5]. Failure to commence
an action within six months unless a notice is given within [sixty]
days arbitrarily bars victims of governmental torts while victims of
private torts suffer no such bar. We conclude such arbitrary
treatment violates the equal protection guarantees of our federal
and state constitutions. In reaching this conclusion, we have not
lost sight of the fact that statutes carry a strong presumption of
constitutionality. On the other hand, rather than furthering a
legitimate governmental interest, the statute has proved to be a trap
for the unwary. See Lunday, 213 N.W.2d at 911-12 (Reynoldson,
J., dissenting).
We are also mindful that we are rejecting reasoning that has
supported the constitutionality of section [670.5] for thirteen
years. . . . In our quest to seek the ill-defined parameters of the
equal protection clause, we have reexamined the traditional
interests put forth as justification for section [670.5], and have found
them totally lacking in substance in today‟s circumstances. We
therefore join those jurisdictions that have likewise concluded there
is no rational basis for legislation like section [670.5]. See Reich v.
State Highway [Dept.], 386 Mich. 617, 623-24, 194 N.W.2d 700,
702 (1972); Turner v. Staggs, 89 Nev. 230, 235, 510 P.2d 879, 882
(1973), cert. denied, 414 U.S. 1079, 94 S. Ct. 598, 38 L. Ed. 2d 486
(1973); [Hunter v. North Mason High Sch., 85 Wash. 2d 810, 81819, 539 P.2d 845, 850 (1975)]; [O’Neil, 237 S.E.2d at 508].
Id. at 780-81. The court then held that to the extent that Franks, Harryman,
Shearer, Lunday, and other cases concerning the constitutionality of section
670.5 were inconsistent with its opinion, they were overruled.
Id. at 781.
Additionally, the court stated: “[B]ecause section [670.5] is unconstitutional, we
hold that Iowa Code chapter 614 is the applicable statute of limitations for all
actions arising under chapter [670].” Id.
In 1993 the Iowa Supreme Court revisited its decision in Miller regarding
the constitutionality of section 670.5 in Clark v. Miller, 503 N.W.2d 422 (Iowa
1993). In Clark, plaintiffs filed suit against a municipality and various municipality
19
employees on March 13, 1992, based upon injuries that allegedly occurred on or
about March 10, 1990. Clark, 503 N.W.2d at 424. The plaintiffs had given timely
notice of the claim to defendants on March 14, 1990. Id. Thus, the plaintiffs filed
their action within two years after sufficient and timely notice of the claim had
been given, but not within two years of the date of injury. Id. The defendants
argued that plaintiffs‟ claims were barred by the statute of limitations, and the
district court agreed and dismissed plaintiffs‟ petition.
Id.
The district court
reasoned:
Because [section 670.5] of the Iowa Code was declared
unconstitutional by the Iowa Supreme Court in the case of [Miller],
and because the Miller case held that Chapter 614 of the Iowa
Code applies to actions commenced under Chapter [670], . . . and
because the cause of action here accrued no later than March 10th,
1990, two years have elapsed and the plaintiffs are time barred
under Section 614.1(2) of the Iowa Code.
Id.
On appeal, the plaintiffs argued they had two years after giving timely
notice to commence their action pursuant to section 670.5, and the Iowa
Supreme Court agreed.
Id. at 423-24.
The court found Clark to be
distinguishable from Miller, explaining:
We stated [in Miller that] the “[f]ailure to commence an action within
six months unless a notice is given within [sixty] days arbitrarily
bars victims of governmental torts while victims of private torts
suffer no such bar.” We concluded the six-month statute of
limitation, in which no notice is given, had proved to be a trap for
the unwary. In Miller, the issue of severability was not presented or
discussed. Notice had not been given to the local government.
The validity of the provision of section [670.5] prohibiting actions
that are not commenced within two years after giving notice was
not addressed.
Id. at 424-25 (internal citations omitted). The court then held:
20
We find the provisions of section [670.5] can be severed to exclude
the unconstitutional portion of the statute while retaining the
remaining portion. Allowing the statute of limitations to be extended
so as to permit a filing of an action within two years after timely
notice of the claim has been given does not violate equal protection
guarantees. To allow a person to commence a tort action against a
unit of local government within two years after giving timely notice
is not patently arbitrary. Such a provision bears a rational
relationship to a legitimate governmental interest. The objective of
such an extension is not to bar stale claims, but to encourage
prompt reporting of claims. We find the remaining portion of
section [670.5] fulfills an apparent legislative intent.
Id. at 425.
Recently, in Perkins v. Dallas Center-Grimes Community School District,
727 N.W.2d 377 (Iowa 2007), and Rucker v. Humboldt Community School
District, 737 N.W.2d 292 (Iowa 2007), the Iowa Supreme Court addressed
whether the minor tolling provision of section 614.8(2) applies to chapter 670
claims. In Perkins, a minor student was injured while participating in a school
event. Perkins, 727 N.W.2d at 378. The student gave the school district notice
of her intent to file a claim against the school more than a year after the injury
was sustained. Id. The student then filed suit more than three years after the
injury was sustained, and more than two years after notice was provided. Id.
The school district moved for summary judgment, asserting the student‟s claim
was untimely and barred by section 670.5. Id. The district court agreed and
granted the school district‟s motion. Id.
On appeal, the student argued that she was entitled to the benefit of
section 614.8(2) because of language in Miller stating that, because the sixty-day
notice requirement was invalid, “Iowa Code chapter 614 is the applicable statute
of limitations for all actions arising under chapter [670].” Id. at 380 (quoting
21
Miller, 394 N.W.2d at 781).
The supreme court rejected the argument,
determining that nothing in Miller or any of its other cases had “indicated that the
tolling provision was intended to be read into section 670.5.” Id. Furthermore,
the court stated that our legislature had “never indicated any intent to incorporate
a tolling provision in chapter 670, and we decline to do so by relying on the broad
language of Miller. Miller did not even involve a claim by a minor.” Id. at 381.
The court held that “Miller did not invalidate section 670.5 in any respect except
its requirement for the sixty-day notice. The two-year limitation in that statute
remains intact.” Id. As such, the court concluded that the student‟s claim was
“not rendered timely by the tolling provision of section 614.8(2).” Id.
In Rucker, a minor student was injured while participating in a parade with
the high school marching band. Rucker, 737 N.W.2d at 292-93. She brought a
negligence action against her high school and high school band director two-anda-half years after she sustained her injuries, and had never provided notice to the
defendants.
Id. at 292, 294.
The defendants filed a motion for summary
judgment arguing the student‟s claim was untimely because she was required to
file her claim within two years of her injury. Id. at 292. The student maintained
that Iowa Code section 614.8, the tolling provision for minors, extended the time
to file her claim, and was therefore timely filed. Id. at 292-93. The district court
granted summary judgment in favor of the defendants, ruling that section 614.8
did not apply to claims against municipalities under chapter 670. Id. at 293.
On appeal, the student in Rucker argued that the Iowa Supreme Court‟s
“holding in Miller incorporated chapter 614‟s tolling provision for minors with
respect to claims against municipalities.” Id. at 294. The court again rejected
22
this argument in a four-to-three decision, holding that “[t]he tolling provision for
minors found in section 614.8 does not apply to claims brought under chapter
670 for injuries occurring before July 1, 2007.” Id. at 295.
In the present case, plaintiffs admit they did not provide the School District
timely notice. Plaintiffs‟ suit was not filed within two years of the alleged improper
sexual contact or discovery thereof. Nevertheless, plaintiffs maintain their claims
are subject to the minor tolling provision contained in section 614.8(2), and
therefore timely filed.
Plaintiffs argue that section 670.5, when read to omit the minor tolling
provision of section 614.8(2), is unconstitutional as applied because it creates
“two separate and irrational classes in violation of the federal and state Equal
Protection clauses: minor litigants in cases against local government vis-à-vis
minor litigants in cases involving purely private persons. The School District
maintains that Perkins and Rucker are dispositive of the issue. Although we
recognize, as stated above, that our supreme court in Perkins and Rucker
determined that the minor tolling provision found in section 614.8 does not apply
to claims brought under chapter 670, the court was not presented with and did
not address the equal protection argument asserted in this case. We therefore
must determine, based upon the argument presented, whether chapter 670
violates the Iowa and United States equal protection clauses when read to omit
the minor tolling provision of section 614.8(2).
Plaintiffs concede that the rational basis test must be applied to determine
whether the statute is constitutional. “Under the rational basis analysis, a statute
is constitutional unless it is patently arbitrary and bears no rational relationship to
23
a legitimate governmental interest.”
Ruden v. Parker, 462 N.W.2d 674, 676
(Iowa 1990) (quoting Bennett v. City of Redfield, 446 N.W.2d 467, 474 (Iowa
1989)). To survive this constitutional test (1) the statute must serve a legitimate
governmental interest and (2) the means employed by the statute must bear a
rational relationship to that governmental interest. Glowacki v. Board of Med.
Exam’rs, 501 N.W.2d 539, 541 (Iowa 1993).
“The party attacking the
classification has the heavy burden of proving the action unconstitutional, and
must negate every reasonable basis upon which the action may be sustained.”
Miller, 394 N.W.2d at 778-79 (citation omitted). Furthermore, there is “a strong
presumption in favor of the constitutionality of any legislative enactment.” Id.
The Miller court held Iowa Code section 670.5 is unconstitutional because
it treats persons injured by municipal tortfeasors different from those injured by
private tortfeasors without a rational basis for doing so. Miller, 394 N.W.2d at
780. Miller declared that chapter 614 shall apply all applicable limitation periods
under the Municipal Tort Claims Act (MTCA). Id. at 781. Although Clark held
section 670.5 did not violate equal protection guarantees where timely notice of
MTCA claims is given as provided for in section 670.5, 503 N.W.2d at 425, it did
not reverse the Miller holding requiring an application of chapter 614 to MTCA
claims where no notice is given, as a means of avoiding the statute‟s equal
protection infirmity. As noted above, neither Perkins nor Rucker addressed the
equal protection argument currently before us.6
We recognize that our supreme court has concluded “the tolling provisions of section
614.8 do not apply to statutes of limitation outside of chapter 614.” Harden v. State, 434
N.W.2d 881, 884 (Iowa 1989). That conclusion was reached with reference to the State
6
24
For the reasons stated in Miller, we find that section 670.5 violates the
equal protection clause when read to omit the minor tolling provision of section
614.8(2). Miller, 394 N.W.2d at 780-81. We find no rational basis justifying the
classification resulting from claims filed by minors against a municipality and
claims filed by minors against private tortfeasors. Although it is true that “[t]he
Iowa legislature has never indicated any intent to incorporate a tolling provision in
chapter 670” (until the 2007 amendments), Perkins, 727 N.W.2d at 381, neither
has the legislature indicated any dissatisfaction with Miller’s holding that chapter
614 supplies applicable limitation periods under the MTCA.
Application of
chapter 614 to plaintiffs‟ claims is consistent with present legislative intent.
Subsequent to the Perkins decision, the legislature amended section 670.5 to
extend a claimant‟s statute of limitations for one year from and after the
attainment of majority. 2007 Iowa Acts, S.F. 384 §§ 2, 5.
In this case where no notice was given, we conclude the district court
erred in holding that chapter 670 does not violate the Iowa and United States
equal protection clauses when read to omit the minor tolling provision of section
614.8(2). Accordingly, we reverse the judgment of the district court and remand
for further proceedings.
IV. Conclusion.
We conclude that the district court did not err in holding that the plaintiffs‟
claims premised upon the civil liability provisions of Iowa Code section 232.75(2)
(2005) were subject to the provisions of chapter 670, and that the continuing tort
Tort Claims Act, a statute that is distinguishable from the MTCA insofar as its limitation
period is concerned.
25
doctrine did not apply to defendants McChaughey and Lane‟s alleged failure to
report. We conclude, in a case where no notice is given, section 670.5 (2005)
violates the Iowa and United States equal protection clauses when read to omit
the minor tolling provision of section 614.8(2), so we therefore reverse the
judgment of the district court and remand for further proceedings.
REVERSED AND REMANDED.
Mahan, P.J., concurs; Miller, J., concurs specially.
26
MILLER, J. (concurring specially)
I write separate only to explain my reasons for concurring in the majority‟s
reversal on the equal protection issue.
Iowa Code section 670.5 clearly treats minors with claims against
governmental entities differently than it treats minors with claims against others,
as it does not allow the extended time to bring suit that section 614.8(2) allows to
minors with claims against others. We apply the rational basis test, rather than a
higher level of scrutiny, to such a denial of equal protection claim.
Miller v.
Boone County Hosp., 394 N.W.2d 776, 778 (Iowa 1986).
The Equal Protection Clause essentially requires that
similarly situated persons be treated alike. If people are not
similarly situated, their dissimilar treatment does not violate equal
protection. To meet constitutional standards, it is sufficient if all
members of the same class be treated the same.
In re Morrow, 616 N.W.2d 544, 548 (Iowa 2000) (citations omitted).
The general principles applicable to the determination of the
constitutionality of the challenged statutory provision are well
established. All presumptions are in favor of the constitutionality of
the statute and it will not be held invalid unless it is clear, plain and
palpable that such decision is required. The legislature may pass
any kind of legislation it sees fit so long as it does not infringe the
state or federal constitutions. Courts do not pass on the policy,
wisdom, advisability or justice of a statute. The remedy for those
who contend legislation which is within constitutional bounds is
unwise or oppressive is with the legislature. The burden is not
upon [a party opposing a claim of unconstitutionality] to prove the
act is constitutional. [A party claiming unconstitutionality has] the
burden to demonstrate beyond a reasonable doubt the act violates
the constitutional provision invoked and to point out with
particularity the details of the alleged invalidity. To sustain this
burden [the party claiming unconstitutionality] must negative every
reasonable basis which may support the statute. Every reasonable
doubt is resolved in favor of constitutionality.
City of Waterloo v. Selden, 251 N.W.2d 506, 508 (Iowa 1977) (citations omitted).
27
The party claiming unconstitutionality “must show the classification bears
no rational relationship to a legitimate government interest.” State v. Mitchell,
757 N.W.2d 431, 438 (Iowa 2008).
Although some of our cases suggest that a classification will be upheld if
we, the court, can reasonably conceive of any state of facts to justify it, see, e.g.,
Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 689 (Iowa 2002), I
believe the more appropriate formulation is that the classification will be upheld if
the legislature could reasonably conceive of any state of facts to justify it. See,
e.g., Mitchell, 747 N.W.2d at 438 (“The legislature could have reasonably
determined its chosen classification scheme . . . would rationally advance the
government objective.”).
Several potential governmental interests in what is now section 670.5
were identified in Miller, 394 N.W.2d at 779-80. The majority in that case, in a
five-to-four decision rejected those interests, holding that they “no longer furnish
any rational basis justifying the classification resulting from [the predecessor of
current section 670.5].” Id. at 780. The dissent pointed out that the record was
woefully lacking in evidentiary support for the reasons relied on by the majority in
its rejection, id. at 782-84 (Wolle, J., dissenting), and the majority made no claim
to the contrary.
By its enactment of section 670.5 our legislature has implicitly found that
legitimate governmental interests support the classification thereby created.
Under the authority cited above section 670.5 enjoys a presumption of
constitutionality and the burden is on the party claiming unconstitutionality to
demonstrate beyond a reasonable doubt that it denies equal protection of the
28
law. In this case, similar to the lack of evidentiary support pointed out by the
dissent in Miller, the plaintiffs have provided no evidentiary basis for rejecting the
governmental interests discussed in Miller.
If we were writing on a clean slate I would affirm the district court on the
equal protection issue, believing that section 670.5 could not and should not be
found to deny equal protection unless and until an appropriate record
demonstrated that the classification in question does not bear a rational
relationship to any one or more of the governmental interests discussed in Miller.
I believe, however, that the holding in Miller compels the result reached on this
issue in the detailed and thorough majority opinion, and therefore concur, if
somewhat reluctantly, in its reversal on that issue. I fully concur in all other parts
of the majority opinion.
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