Ron Myers v. City of Cedar Falls

IN THE COURT OF APPEALS OF IOWA

No. 22-0917
Filed May 24, 2023

RON MYERS,
Plaintiff-Appellant,

vs.

CITY OF CEDAR FALLS,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple,

Judge.

Ron Myers appeals the district court’s order granting summary judgment in

his personal-injury action. REVERSED AND REMANDED.

Thomas J. Duff and Jim Duff of Duff Law Firm, P.L.C., West Des Moines,

for appellant.

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

Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ.
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AHLERS, Judge.

Ron Myers slipped on the end of a diving board at a swimming pool owned

and operated by the City of Cedar Falls. Myers sued the city seeking to recover

damages for injuries he alleges he suffered, claiming the slip was caused by the

city’s failure to ensure the diving board had a slip-resistant surface as required by

state administrative rules. The city moved for summary judgment on the basis that

it has qualified immunity under Iowa Code section 670.4(1)(l) (2020). The district

court granted summary judgment on that basis. Myers appeals.

We review summary judgment rulings for legal error. Garrison v. New

Fashion Pork LLP, 977 N.W.2d 67, 76 (Iowa 2022). In so doing, we “(1) view the

facts in the light most favorable to the nonmoving party, and (2) consider on behalf

of the nonmoving party every legitimate inference reasonably deduced from the

record.” Id. (citation omitted). Summary judgment is only proper when there is no

issue of material fact “and the moving party is entitled to judgment as a matter of

law.” Id. (citation omitted).

Myers argues the district court erred by granting summary judgment

because there was a genuine issue of material fact as to “whether the diving board

lacked a slip-resistant surface and whether the [city] had knowledge of this

defective condition.” Essentially, Myers contends that if the city failed to ensure

the diving board had a slip-resistant surface, then it triggers a domino chain

reaction of statutes and administrative rules that ultimately precludes the city from

receiving qualified immunity. That chain goes like this:

 Iowa Administrative Code rule 641-15.4(4)(c)(6) provides, “Diving

boards and platforms shall have a slip-resistant surface.”
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 Violation of any Iowa Department of Public Health (the department)1

administrative rule or provision of Iowa Code chapter 135 amounts

to a simple misdemeanor, see Iowa Code § 135.38, so the city’s

possible failure to ensure the diving board had a slip-resistant

surface would be a simple misdemeanor. See Sanon v. City of Pella,

865 N.W.2d 506, 514 (Iowa 2015) (“[A] violation of the department

rules relied upon by the [plaintiffs] is a misdemeanor under section

135.38.”).

 A simple misdemeanor is a criminal act. See Iowa Code § 701.8;

see also Sanon, 865 N.W.2d at 515 (“A misdemeanor is a ‘criminal

offense.’” (citation omitted)).

 Section 670.4(1)(l), which would otherwise grant the city qualified

immunity, does not apply when the underlying “claim is based upon

an act or omission of an officer or employee of the municipality and

the act or omission constitutes actual malice or a criminal act.”2

(Emphasis added.)

1 The Iowa Department of Public Health merged with the Iowa Department of
Human Services in 2022. Because this case deals with events that occurred prior
to that time, we reference the Iowa Department of Public Health.
2 Iowa Code section 670.4(1)(l) provides immunity to a municipality for:

A claim relating to a swimming pool or spa as defined in
section 135I.1 which has been inspected by a municipality or the
state in accordance with chapter 135I, or a swimming pool or spa
inspection program which has been certified by the state in
accordance with that chapter, whether or not owned or operated by
a municipality, unless the claim is based upon an act or omission of
an officer or employee of the municipality and the act or omission
constitutes actual malice or a criminal offense.
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Following this logic, Myers contends that whether the diving board had a slip-

resistant surface is a critical fact upon which qualified immunity hinges. Myers

contends there is a genuine issue of material fact whether the diving board had a

slip-resistance surface, so summary judgment cannot be granted.

Myers’s logic follows—and is based on—the logic used by the supreme

court in Sanon. In Sanon, the supreme court considered whether “a violation of

an administrative rule promulgated by the Iowa Department of Public Health

constitute[d] a crime and remove[d] the immunity under Iowa Code

section 670.4(12)[3]” and answered in the affirmative. 865 N.W.2d at 510, 515. So,

if Sanon applies, Myers’s logic holds up and summary judgment should not have

been granted.

The city launches a multi-pronged attack against applying Sanon here.

First, the city argues that rule 641-15.4(4)(c)(6) only requires a diving board to have

a slip-resistant surface, but the rule does not include any standard to measure the

adequacy of the slip resistance. So, the argument goes, as it is uncontested that

the diving board originally had a slip-resistant surface, and there is no measurable

standard of how much slip-resistant material needs to remain, there can be no

violation of the administrative rule and Sanon does not apply. We disagree. The

fact that there is no articulated level of slip resistance that must be maintained does

not change the plain language of the rule—the diving board must have a slip-

resistant surface. Either the board had a slip-resistant surface or it didn’t. Here,

there was conflicting evidence of whether it did, so a factual dispute is generated

3In 2013, after Sanon was filed, Iowa Code section 670.4 was renumbered and
section 670.4(12) is now section 670.4(1)(l). See 2013 Iowa Acts ch. 30, § 196.
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that needs to be resolved through the trial process. See, e.g., Smith v. Cedar

Rapids Country Club, 124 N.W.2d 557, 563 (Iowa 1963) (finding a jury question

generated by conflicting evidence of whether a waxed dance floor was slippery);

Doty v. Olson, No. 09-1852, 2010 WL 5050565, at *4 (Iowa Ct. App. Dec. 8, 2010)

(finding the trial court should have instructed on an alleged regulation violation to

allow the jury to decide whether the regulation was violated).

Second, the city argues that the department conducted inspections and

never notified the city that the diving board did not comply with the rule requiring a

slip-resistant surface. The city suggests that since it was never advised about or

cited for violating the rule requiring the board to have a slip-resistant surface, there

can be no violation of the rule and therefore Sanon doesn’t apply. Again, we

disagree. The administrative rule imposes an obligation on the city to have a slip-

resistant surface on any diving board it chooses to provide. Nothing in the rule

suggests that the city only violates the rule if it is informed of or cited for a violation

of it. Again, either the board had a slip-resistant surface, or it didn’t, and the fact

the city was not notified about or cited for a violation of the rule does not change

the need to resolve that underlying factual dispute of whether the rule was violated.

As there is a factual dispute, a jury question has been generated that precludes

summary judgment.

Third, the city tries to distinguish Sanon on its facts. We are not persuaded

by the city’s arguments. The claimed factual distinctions do not change the fact

that, in a four justice to three part of the Sanon ruling, the court followed the same

logic being asserted by Myers in this case—namely that, if Myers can establish the

diving board did not have a slip-resistant surface, Myers will establish that the city
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violated an administrative rule, which would be a simple misdemeanor, which

would be a criminal act that negates the city’s immunity as the Sanon majority

interpreted the applicable rules and statutes. See Sanon, 865 N.W.2d at 508

(“[W]e conclude the [plaintiffs] have alleged the city violated administrative rules

constituting criminal offenses under the Iowa Code. Thus, if the city violated these

rules, the city is not entitled to immunity under Iowa Code section 670.4[(1)(l)].”).

Finally, the city suggests that “agreeing with the analysis of . . . the Sanon

dissent would lead to summary judgment under the facts of this case.” But,

regardless of how persuaded we may or may not be by the Sanon dissent, we are

bound by our supreme court’s majority opinions, not its dissents. See In re

Marriage of Korn, No. 15-2014, 2016 WL 4803960, at *5 (Iowa Ct. App. Sept. 14,

2016); D & W Dev., Inc. v. City of Milford, No. 12-0579, 2013 WL 2145735, at *3

(Iowa Ct. App. May 15, 2013); see also State v. Sisco, 169 N.W.2d 542, 554 (Iowa

1969) (LeGrand, J., concurring specially) (“Much as I agree with the Boykin

dissent, it is of course the majority opinion which we are bound to observe.”).

Sanon remains good law. This court cannot overturn supreme court precedent.

Nationwide Agribusiness Ins. Co. v. PGI Int’l, 882 N.W.2d 512, 518 n.4 (Iowa Ct.

App. 2016) (“We are not, however, at liberty to overturn Iowa Supreme Court

precedent.”).

Because we are bound by the Sanon majority and a factual dispute remains

as to whether the diving board was equipped with a slip-resistant surface, we

conclude the district court erred by concluding section 670.4(1)(l) provided the city

with qualified immunity as a matter of law and granting summary judgment in favor

of the city. A trial will be needed to resolve the factual dispute of whether the
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administrative rule was violated. The resolution of that factual dispute by trial will

determine whether the city is entitled to qualified immunity. We remand for further

proceedings.

REVERSED AND REMANDED.