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Donahue v. Washington County2/6/2002
law, arguing that their cause of action arises out of Iowa Code section 670.2 because section 670.2 explicitly states that "every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties. . . ." We agree that section 670.2 removes any governmental immunity of Washington County from the plaintiffs' cause of action of negligence for breach of an existing duty. But the function of section 670.2 is merely to remove governmental immunity from barring an action based on breach of the existing duty; it does not create a prima facie cause of action in negligence, nor does it create the element of duty necessary to establish such a negligence claim.
In determining whether there was a viable cause of action in this case, we look to determine whether the duty element of the tort of negligence existed. Under section 351.26,
It shall be . . . the duty of all peace officers within their respective jurisdictions unless such jurisdiction shall have otherwise provided for the seizure and impoundment of dogs, to kill any dog for which a rabies vaccination tag is required, when the dog is not wearing a collar with rabies vaccination tag attached.
Plaintiffs claim this section creates the necessary duty for their cause of action.
The violation of a statutory duty gives rise to a tort claim only when the statute, explicitly or implicitly, provides for such a cause of action. Sanford v. Manternach, 601 N.W.2d 360, 371 (Iowa 1999). An essential factor in that determination, if the cause of action is not explicitly provided for in the statute, is whether the plaintiff is a member of the class for whose benefit the statute was enacted. See id.; Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995). No such cause of action was explicitly provided for in section 351.26. Therefore we examine whether plaintiffs were members of the class targeted by the statute. We find that section 351.26 was intended to provide for the protection of the public at large. Plaintiffs are members of the public.
However, the Iowa Supreme Court has often found, consistent with the common law public duty doctrine, 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 municipality and the injured plaintiff consistent with the rules of Restatement (Second) of Torts section 315. Kolbe, 625 N.W.2d at 729; see Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990). This duty to the public can arise from a statute or from the State's obligation to protect the public at large. Kolbe, 625 N.W.2d at 729; see Fitzpatrick v. State, 439 N.W.2d 663, 667 (Iowa 1989).
The pivotal issue in this case is whether the duty owed by defendant to seize or report the dog, a duty to the public at large, could also be construed as a duty to the plaintiffs as members of a special identifiable class. We have already stated that the statute does not identify plaintiffs as members of a special protected class. Further, we similarly find that plaintiffs had no common law special relationship with defendant that could support a finding of duty. Plaintiffs cite Harryman v. Hayles, 257 N.W.2d 631, 638 (Iowa 1977) overruled on other grounds and Symmonds v. Chicago, Milwaukee, St. Paul & Pac. R.R., 242 N.W.2d 262, 265 (Iowa 1976) in their contention that there in fact was a special relationship to support a duty. In Harryman and Symmonds the court found a duty by the county to all persons using the roads; in other words, the use of the road by a particular individual was sufficient to establish the requisi
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