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Messerschmidt v. City of Sioux City11/14/2002
de when there were still over 1,500 people in the area relates to its duty of care to the Big Parade visitors. Such an a matter presents issues of fact that courts are equipped to evaluate under traditional principles of negligence. Because the city has not articulated any economic, political, or social policy concerns central to its actions, it has not met its burden to show the discretionary function immunity applies. We find the district court correctly found the city is not immune from liability for its actions in this case. We affirm.
B. Iowa Code Section 668.10(1) Immunity for Traffic Control Devices
The city also contends it is immune from liability under Iowa Code section 668.10(1). This section provides a government entity cannot be assigned any percentage of fault for failing to "place, erect, or install a stop sign, traffic control device, or other regulatory sign as defined in the uniform manual for traffic control devices adopted pursuant to section 321.252." However, when a regulatory device has been set up "the state or municipality may be assigned a percentage of fault for its failure to maintain the device." Id. The city did not argue this defense below. The trial court did not have an opportunity to rule on this issue. As such, we find the city has not preserved error for our review of this claim.
A. Immunity Under Iowa Code Section 670.4(10) for Third-party Fault
Finally, the city argues it cannot be held liable for Messerschmidt's injuries when it was the drunken driver, not the city, who drove a car into Messerschmidt injuring her. The city filed a motion for a new trial with the trial court arguing the court erred in denying the city's request for an instruction on immunity under Iowa Code section 670.4(10). This section provides for immunity from,
ny claim based upon an act or omission of an officer or employee of the municipality, whether by issuance of permit, inspection, investigation, or otherwise . . . if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense. Iowa Code § 670.4(10).
The city argued Messerschmidt's injuries were caused by a third party, event, or property not under the city's supervision or control. The court ruled that whatever negligence may be attributable to the drunken driver is not a superseding or intervening cause of the injury , but rather is a part of the totality of the circumstances leading to Messerschmidt's injuries. We must consider whether the city can find shelter from liability under Iowa Code section 670.4(10).
Whether this section is applicable to the case before us presents a question of law appropriate for determination by the trial court. The city's reliance on section 670.4(10) immunity is misplaced. This section provides a municipality is immune from liability for " ny claim based upon an act or omission of an officer or employee of the municipality, whether by issuance of permit, inspection, investigation, or otherwise . . . ." Iowa Code § 670.4(10) (emphasis added). Messerschmidts claim the city "was negligent in removing the barricades, security officers, and law enforcement vehicles and in reopening the frontage road to motor vehicle traffic." Messerschmidts do not allege the city is liable for its actions in conducting an investigation or inspection or through issuing a permit. We must determine whether the city's action in removing the barricade is the type of action that falls within the meaning of the word "otherwise" as it is used in this statute.
The doctrine of ejusdem gen
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