Myers v. City of Cedar Falls

1

Ron Myers, Appellee, v. City of Cedar Falls, Appellant.

No. 22-0917

Supreme Court of Iowa

June 14, 2024

Submitted January 23, 2024

On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.

A city seeks further review of the court of appeals decision reversing the district court's summary judgment dismissing tort claims arising from a diving board accident under Iowa Code section 670.4(1)(l).

Thomas J. Duff (argued) and Jim T. Duff of Duff Law Firm, P.L.C. West Des Moines, for appellant.

Samuel C. Anderson (argued) of Swisher &Cohrt, P.L.C., Waterloo for appellee.

WATERMAN, JUSTICE.

In this appeal, we revisit the "criminal offense" exception to immunity for operators of municipal swimming pools under Iowa Code section 670.4(1)(l) (2019). The plaintiff injured his leg when he slipped on a diving board at a city pool. He sued the City of Cedar Falls, alleging that the diving board lacked a slipresistant surface required by state regulations, which constitutes a criminal offense under Sanon v. City of Pella, 865 N.W.2d 506, 514-15 (Iowa 2015), defeating the City's statutory immunity. The City moved for summary judgment under section 670.4(1)(l), which the district court granted concluding that the plaintiff failed to establish a "knowing" violation of the regulations. The plaintiff appealed. We transferred the case to the court of appeals, which reversed based on its determination that fact questions as to the condition of the board precluded summary judgment. We granted the City's application for further review.

On our review, we accept the City's invitation to overrule Sanon because it was egregiously wrong when decided, as explained in its three-justice partial dissent, see id. at 518-28 (Waterman, J., concurring in part and dissenting in part, joined by Cady, C.J., and Mansfield, J.), and it continues to cause problems to this day. Moreover, recent legislative enactments combining state agencies further enhance the problems resulting from Sanon's erroneous holding that violations of agency regulations promulgated under one statute are criminal offenses under another statute, thereby undermining certain immunities enacted by the legislature. Our holding today restores the scope of the statutory immunity and honors the legislature's exclusive role in defining criminal offenses. We therefore vacate the court of appeals decision and affirm the district court's summary judgment.

I. Background Facts and Proceedings.

Forty-nine-year-old Ron Myers and his family traveled to The Falls Aquatic Center in Cedar Falls on July 19, 2019. This was a regular summer activity for the Myers family, as they typically visited swimming pools four or five times a week. Myers jumped off the one-meter diving board at The Falls twice that day without incident. On his third jump, Myers attempted to "get some distance" to perform a "can opener" jump and "make a big splash." Starting from the back of the diving board, Myers jogged to the front end and planted his feet, intending to launch himself into the air. His jump failed. His left foot slipped off while his right foot remained on the board and his knee bent backwards, rupturing his quadriceps tendon. Myers fell into the water. He exited the pool unassisted and sat on a bench where lifeguards offered assistance. The next day, Myers underwent surgery to repair his tendon.

The Falls, owned and operated by the City, first installed this sixteen-foot-long Duraflex diving board in 2013, before the summer swim season. The diving board, when purchased and installed, was "coated with a slip-resistant surface." Over the diving board's seven seasons of use, it had never been resurfaced. No complaints had been reported to management about the slipperiness of the diving board before Myers's accident.

The Falls's recreation supervisor, Chris Schoentag, was responsible for maintaining The Falls's facilities. He removed the diving boards at the end of each season. Staff cleaned the diving boards before reinstallation, using water and a nylon-bristled brush. After inspecting each diving board for any cracks, deformities, or grit, Schoentag reinstalled the board the following season. He used his "best judgment" during his inspections, as he was not aware of a standard method for determining adequate board-surface friction. Schoentag testified that the diving board had a safe, slip-resistant surface at the time of Myers's accident.

The Cedar Falls recreation and community programs manager, Bruce Verink, oversaw Schoentag's removal and reinstallation of the diving boards. He inspected the boards along with Schoentag. Using his own experience, Verink examined the surface of each diving board to determine whether it had "enough grit to hold the feet and keep them from sliding on the board." He opined in his deposition testimony that the board used by Myers had a slip-resistant surface.

The Black Hawk Health Department (BHHD), an inspection agency for the Iowa Department of Public Health (IDPH),^[1] as defined in Iowa Code section 135I.1(2) and Iowa Administrative Code rule 641-15.3(1), conducted an annual inspection of the entire facility. One month before Myers's accident, the BHHD inspected The Falls and provided its inspection report to the City. The report found no deficiencies with any of the diving boards-including the one that Myers later used. In fact, The Falls has never been cited for a deficiency in its diving boards nor cited for a violation of a safety or regulatory rule relating to its diving boards.

In October 2020, Myers filed this civil action against the City to recover damages for his injuries. Myers alleged that the City was negligent in failing to provide a slip-resistant surface on the diving board, failing to maintain the diving board in a proper condition, and failing to correct or remove the dangerous conditions on the diving board. These failures, he claimed, violated Iowa Administrative Code rules 641-15.4(4)(c)(6) and 641-15.5(13)(a)(5), constituting a crime of a simple misdemeanor under Iowa Code section 135.38.

The parties undertook discovery, including depositions. Myers served the City with an expert report from Tom Griffiths, a water safety specialist with over forty years of experience. Griffiths identified several actions and inactions by the City that he claimed constituted negligence, including its "[u]se of an inappropriate and unsafe competitive Duraflex diving board in a recreational swimming pool with untrained users," failure to conduct regular maintenance and cleaning of the diving board's surface, and failure to replace or resurface the diving board. Based on photographs of the diving board, Griffiths opined that "the take-off area of the incident diving board was smooth rather than rough and non-slip as it should have been." He concluded that the "staff at The Falls . . . clearly could have and should have known this."

The City moved for summary judgment on two grounds: (1) the diving board did have a slip-resistant surface, and (2) the City is immune from liability under Iowa Code section 670.4(1)(l) because "there is no evidence that there was any act or omission by an officer or an employee of the municipality which constitutes a criminal offense" that would defeat its statutory immunity.

Myers resisted, arguing that Griffiths's report generated a genuine question of material fact whether the City violated the regulations requiring diving boards to "have a slip-resistant surface." Iowa Admin. Code r. 641- 15.4(4)(c)(6); see also id. r. 641-15.5(13)(a)(5) ("Diving boards and platforms shall have slip-resistant surfaces."). Relying on Sanon, Myers argued that by violating those regulations, the City waived its immunity under section 670.4(1)(l) because the violations constituted a criminal offense under section 135.38.

The district court granted summary judgment to the City based on section 670.4(1)(l), concluding that even if a violation of these regulations was a criminal offense, Myers could not establish that an employee of the City knowingly violated the regulations. It was undisputed that the diving board was slip-resistant when installed, and the court noted that the regulations lack criteria "to determine any measurable level of slip resistance necessary to remain compliant." The court also noted the IDPH and the BHHC never gave notice to the City that its diving board lacked an adequate slip-resistant surface. The district court concluded: "Absent a showing that an officer or employee of the city knowingly violated a regulation as to constitute a crime, the city's claim of immunity must prevail."

Myers appealed, arguing fact questions precluded summary judgment as to the board's condition and the City's constructive notice of rule violations that would defeat its immunity under Sanon. The City argued that the district court correctly determined there was no evidence its employees knowingly violated the regulations, leaving the City entitled to immunity as a matter of law. The City argued in the alternative that Sanon should be overruled. We transferred the case to the court of appeals. The court of appeals viewed compliance with the regulations as a binary inquiry: "[e]ither the board had a slip-resistant surface or it didn't." The court of appeals concluded that if the diving board lacked a slipresistant surface, then the City violated the regulation and lost its immunity. Because of the conflicting evidence about the diving board's surface, the appellate panel determined that there was a disputed fact "that need[ed] to be resolved through the trial process." The court of appeals reversed the summary judgment and remanded the case for trial.

We granted the...