MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND .........................................892
A. Factual Background ..............................................892
B. Procedural Background ...........................................896
II. LEGAL ANALYSIS ......................................................896
A. Summary Judgment Standards ......................................896
B. Does Lakeside Have A Duty To Warn Boaters? ......................898
III. CONCLUSION ..........................................................901
This case arises from a terrible boating tragedy. On May 31, 2010, plaintiff Jamie Laass was riding with her two children, ten-year old David Paul McFarlin and S.L., in a boat operating on Storm Lake when the boat struck a submerged dredge pipe causing the boat's motor to flip up into the boat with the propeller still running. The motor, including the spinning prop, struck David, causing his death. The issue that confronts me here is whether the defendant marina, from which the boat was launched, owed a duty to warn plaintiffs about the dredging operations on Storm Lake.
I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' motion for summary judgment and resistance to it. At least for the purposes of summary judgment, the facts recited here are undisputed. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.
Defendant Lakeside Marina, Inc. ("Lakeside") is a privately owned Iowa
The Lease provides, in pertinent part, that:
The Lease at ¶¶ 3-4; Plaintiffs' App. at 66.
The Lease further provides that:
The Lease at ¶ 9; Plaintiffs' App. at 67-68. The Lease also contains the following provision:
The Lease at ¶ 11; Plaintiffs' App. at 68. In addition, the Lease provides that:
The Lease at ¶¶ 15-16, 19, and 23; Plaintiffs' App. at 69-71.
Lakeside is located on property adjacent to the east side of Storm Lake. It provides the public free access to Storm Lake via a boat ramp on its premises. Lakeside also provides supplemental services to boaters, including: renting docking space; providing some engine repair; renting campsites; and selling gasoline, bait, fishing licenses, snacks, and beverages at its convenience store. Lakeside does not charge a fee of any kind for use of the boat ramp on its premises. No one in plaintiffs' boating party was charged a fee for use of Lakeside's boat ramp.
On May 31, 2010, Harry Foote, David McFarlin, Jamie Laass, her two children, David Paul McFarlin and S.L., and two other children traveled to Storm Lake to go fishing from their boat. Foote had been boating on Storm Lake three or four times before May 2010. Foote was aware about the dredging operations taking place on the lake. Foote and the others in his party arrived at Lakeside at approximately 9:00 a.m. to 9:30 a.m. and launched their boat from the Lakeside boat ramp. While at Lakeside, Jamie Laass purchased a fishing license from Lakeside's convenience store, but no one in their boating party was charged any money for using Lakeside's boat ramp. After launching his boat, once out of the no wake zone, Foote began to accelerate and head west across the lake toward the dredging operations. As he approached the dredge, Foote became confused by the warning buoys and thought he was being directed to maneuver his boat between the main dredge and the auxiliary dredge, rather than being directed to avoid the area between the two dredges. Because of this confusion, Foote continued to drive his boat between the two dredges. As Foote drove closer to the pipe that connected the two dredges, he approached approximately six fishing boats, including Mr. and Mrs. Charles Greth's boat, who were fishing close to the pipe. The Greths began signaling Foote to slow his boat down by waiving their arms and making hand signals. These were signals they had learned, through boating experience, meant a boat should slow down. Foote did not see the Greths' signals and continued to proceed toward the pipe without slowing down. At this point, Foote's boat's motor assembly hit the dredge pipe, causing the outboard motor to flip up into the boat. David McFarlin was hit by the outboard motor's still rotating propellers, fatally injuring him. After the collision, Foote returned to the public boat ramp where emergency personnel were located. At the hospital, Foote told Sheriff Gary Launderville that he had become confused by the placement of the buoys. Foote explained that, as a result of his confusion, he drove his boat between the dredges, rather than around them. Foote viewed his confusion as the cause of the accident. The area on Storm Lake where the accident occurred is not part of Lakeside's leasehold.
Since 2002, there have been ongoing dredging operations on Storm Lake. In 2002, the dredging operations were run by
Over the years, Lakeside has received brochures from the City that provided warning information about the dredging operations at Storm Lake. Every year, Lakeside placed the brochures next to its convenience store cash register. Kelly has seen the brochures on Lakeside's convenience store counter. Lakeside's employees and managers answered questions from the public about the dredging operations by, inter alia, directing those individuals to the brochures provided by the City. Jamie Laass admits there is a "possibility" that the brochures were present in the Lakeside convenience store on the date of the accident and that she simply did not notice the brochures when she was in the convenience store to buy a fishing license.
From approximately 2003 through 2007, the State of Iowa had placed a portable sign at the Lakeside boat ramp warning boaters that dredging operations were taking place on the lake. At some point prior to 2008, the sign was removed because the sign's post had rotted through and was no longer capable of supporting the sign.
Lakeside's owners, managers, and employees had no control over or ownership interest in Storm Lake's open boating areas. On the day of the accident, Lakeside's owners, managers, and employees
Kelly opined that it was the City/the LIC's responsibility to make the dredge operation safe for boaters. Kelly admits that he never consulted the Storm Lake City Attorney to attempt to determine what legal authority or responsibility he had to place a warning sign at Lakeside.
On May 30, 2012, Laass filed her Complaint initiating this diversity lawsuit against Lakeside on behalf of David's estate, herself, and her surviving minor child, S.L., to recover damages related to the boating accident that resulted in David's death.
On July 10, 2013, Lakeside filed a motion for summary judgment contending that it owed no duty to warn boaters about the hazards of an ongoing dredging operation on Storm Lake. Alternatively, Lakeside argues that under the Iowa recreational use statute, Iowa Code § 461C.1 et seq., it was immune from liability for its alleged negligence, and that plaintiffs cannot establish "willful or malicious" conduct on the part of Lakeside so as to fall within one of the statutory exceptions to the general rule of immunity. On August 12, 2013, plaintiffs resisted Lakeside's motion for summary judgment. Plaintiffs contend that Lakeside had a duty to warn them about the dredging operations on Storm Lake. Plaintiffs also argue that summary judgment is improper because the Iowa recreational use statute is inapplicable to Lakeside. Lakeside filed its reply on August 21, 2013.
Motions for summary judgment essentially "define disputed facts and issues and... dispose of unmeritorious claims [or defenses]." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("One of the principal purposes of the summary
A fact is material when it "`might affect the outcome of the suit under the governing law.'" Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, "the substantive law will identify which facts are material." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when "`a reasonable jury could return a verdict for the nonmoving party' on the question," Woods, 409 F.3d at 990 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005) (stating genuineness depends on "whether a reasonable jury could return a verdict for the non-moving party based on the evidence").
Procedurally, the moving party bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue," Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548), and demonstrating that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 ("[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied."). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate "specific facts showing that there is a genuine issue for trial." FED. R.CIV.P. 56(e); Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) ("The nonmoving party may not `rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995))).
As the Eighth Circuit Court of Appeals has explained,
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir.2011) (en banc).
Summary judgment is particularly appropriate when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620 (8th Cir. 2006). Consequently, I turn to consider the parties' arguments for and against summary judgment.
In order to hold Lakeside liable on their negligence claim, plaintiffs must establish that Lakeside had a duty to warn them about the dredging operations on Storm Lake. See Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 98 (Iowa 2012) ("[A]n actionable claim of negligence requires the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages." (internal quotation marks and citations omitted)); Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009) (same). The central question Lakeside raises in its motion for summary judgment is whether it had a duty to warn Storm Lake boaters about the dangers of the dredging operation under Iowa law.
In McCormick, the Iowa Supreme Court offered the following instruction on how to determine whether one party owes a duty to another:
McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 371 (Iowa 2012) (citing Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009) (internal citations and quotations omitted)). The court reiterated "that our previous law of duty was otherwise still alive and well." McCormick, 819 N.W.2d at 371.
My starting point is the "`common principle: liability is premised upon control.'" McCormick, 819 N.W.2d at 372 (quoting Van Essen v. McCormick Enterprises Co., 599 N.W.2d 716, 720 n. 3 (Iowa 1999) quoting, in turn, Allison ex rel. Fox v. Page, 545 N.W.2d 281, 283 (Iowa 1996) (internal quotation marks omitted)). A brief review of the decisions cited above illustrates this principle. In McCormick, the Iowa Supreme Court held that a subcontractor, who properly performed electrical work on a jobsite, then locked up the work and transferred control of the work site to the property owner, owed no duty of care to an employee of the owner injured when the owner failed to deenergize the work site. McCormick, 819 N.W.2d at 372. In Van Essen, the Iowa Supreme Court held a landlord that had installed a grain bin, but no longer controlled it, owed no duty to an employee of the lessee who was subsequently injured due to the allegedly hazardous condition of the bin. Van Essen, 599 N.W.2d at 720. In Allison, the Iowa Supreme Court had to determine whether a landlord was liable for injuries caused by a tenant's dog in the tenant's fenced-in yard when the landlord knew or had reason to know the dog was dangerous. Allison, 545 N.W.2d at 282. Significantly, the tenant acquired the dog after taking possession of the premises. Id. at 283. The court determined that, because the landlords did not have any right to control their tenant's dog, acquired after the tenant took possession, the landlords "owed no duty to third persons to protect them from the dog." Id. at 284.
Here, the uncontested facts are that Lakeside's lease with the City gave Lakeside a leasehold only in premises adjacent to the east side of Storm Lake and no interest or control whatsoever over the area of Storm Lake where the accident occurred. Additionally, Lakeside had no specific contact with the dredging operations being conducted on Storm Lake. As a result, Lakeside was not privy to the dredge operator's daily plans for and movement of the dredging operations. Lakeside also had no control or input into the dredging operator's actions to warn boaters about the dredging operations. Plaintiffs direct me to no Iowa authority imposing a duty to warn under such circumstances. To the contrary, a number of courts in other jurisdictions have refused to impose a duty on landowners to warn of dangerous off-shore conditions. Swann v. Olivier, 22 Cal.App.4th 1324, 28 Cal.Rptr.2d 23 (1994), is illustrative of this line of authorities. In Swann, the plaintiff was injured in the surf while attending a beach party. He brought an action alleging that the beach's owner failed to warn him of riptides, submerged rocks, and other hazardous ocean conditions. See id. at 23-24. The California Court of Appeals explained that the decisive factor in the case was the "relatively straightforward" one of "where the injury took place and whether the defendants had any duty to warn of hazards in that area." Id. at 25. After observing
In contrast, plaintiffs would, in effect, require lessees, like Lakeside, to oversee the entity performing the dredging operation. A duty of this kind would create the prospect of unlimited responsibility to warn of all manner of risks and hazards over which such a lessee has no control. It is this sort of liability which the Iowa Supreme Court rejected in McCormick, Van Essen, and Allison. Accordingly, I conclude that Lakeside had no common law duty to plaintiffs to warn them of the dredging operations on Storm Lake.
Even if no common law duty exists, plaintiffs argue that under Lakeside's lease with the City, Lakeside assumed a duty to warn the public about dangers on Storm Lake. Plaintiffs point to nothing in the lease that imposes a duty on Lakeside to inspect the lake itself or to warn the public of dangerous conditions. Plaintiffs argue that by agreeing to operate a Marina for use by the public, see the Lease at ¶ 3, Lakeside assumed a duty to warn the public about dangerous conditions on the lake. This provision does not advance plaintiffs' argument, because nothing in it requires Lakeside to inspect the lake or to take responsibility for warning the public of dangerous conditions on the lake. Accordingly, I find that Lakeside owed plaintiffs no duty to warn them of the dangers of the dredging operation on Storm Lake. Therefore, I grant Lakeside's motion for summary judgment.
For the reasons discussed above, Lakeside's motion for summary judgment is granted and this case is dismissed.
Defendant's App. at 55.
