IN THE SUPREME COURT OF IOWA

No. 14–1326

Filed April 14, 2017

ESTATE OF MERCEDES GOTTSCHALK by Coexecutors 

RICHARD GOTTSCHALK and REBECCA RASSLER,

Appellants,

vs.

POMEROY DEVELOPMENT, INC. d/b/a POMEROY CARE CENTER,

Defendant,

STATE OF IOWA,

Appellee.

______________________________________

POMEROY DEVELOPMENT, INC. d/b/a POMEROY CARE CENTER,

Third-Party Plaintiff-Appellant,

vs. 

STATE OF IOWA,

Third-Party Defendant-Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Calhoun County, Thomas 

Bice, Judge.

An estate and a care center request further review of a court of 

appeals decision finding the State did not owe either of them a duty of 

care. DECISION OF COURT OF APPEALS AND JUDGMENT OF 

DISTRICT COURT AFFIRMED.
2

Willis J. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for 

appellants.

Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant 

Attorney General, for appellee.

David H. Luginbill and Michael J. Streit of Ahlers & Cooney, P.C., 

Des Moines, for defendant Pomeroy Development.
3

WIGGINS, Justice.

A person whom the courts released from the State’s civil 

commitment unit for sexual offenders (CCUSO) and then recommitted to 

a care center attacked the estate’s decedent at the care center. The 

estate filed a petition against the care center and the State claiming 

negligence. The care center brought a third-party claim against the State 

for indemnity. The State filed a motion for summary judgment arguing it 

owed no duty of care to the estate’s decedent or the care center. The 

district court agreed and entered judgment for the State. The estate and 

the care center appealed. We transferred the case to the court of 

appeals. The court of appeals affirmed the district court judgment. We 

granted further review. On appeal, we find on the issues preserved that

the State did not owe a duty of care to either the estate’s decedent or the 

care center. Accordingly, we affirm the decision of the court of appeals 

and the judgment of the district court.

I. Background Facts and Proceedings.

Mercedes Gottschalk’s family admitted her to the Pomeroy Care 

Center in Pomeroy on September 5, 2009. Thereafter, on December 8, 

2010, the court civilly committed William Cubbage to the Pomeroy Care 

Center. Cubbage’s previous criminal and medical history is relevant to 

this appeal. 

The State previously convicted Cubbage of “four sexually violent 

offenses . . . : assault with intent to commit sexual abuse (in 2000), 

indecent contact with a child (1997 and 1991), and lascivious acts with a 

child (1987).” In re Det. of Cubbage, 671 N.W.2d 442, 443 (Iowa 2003). A 

doctor diagnosed him with pedophilia and a personality disorder not 

otherwise specified with antisocial and narcissistic features. Id. The 

doctor believed those conditions were “mental abnormalities” that “made 
4

it seriously difficult for Cubbage to control his sexually dangerous 

behavior.” Id. On May 21, 2002, Cubbage was adjudicated a sexually 

violent predator pursuant to Iowa Code chapter 299A, and the court 

committed him to the custody of the director of the Iowa Department of 

Human Services for placement at CCUSO until his “mental abnormality 

has so changed that he is safe to be placed in the transitional release 

program or discharged.” 

In August 2006, while still in custody at CCUSO, a doctor 

diagnosed Cubbage with dementia of the Alzheimer’s type, declining 

mental functioning, and several physical and mental ailments. A ninetyday patient assessment at CCUSO in May 2010, indicated that the staff 

agreed the “best avenue for Mr. Cubbage would be to place him in secure 

care for the rest of his life . . . pending DHS Directors approval.” 

In July, Dr. Michael Ryan, a psychologist at CCUSO, prepared an 

annual report summarizing Cubbage’s progress, and he made 

recommendations regarding Cubbage’s possible release. Based on his 

evaluation, Dr. Ryan determined Cubbage did not meet the criteria for 

transitional release, but that he “does not currently meet the definition of 

a sexually violent predator as described in 229A.” 

On November 16, a hearing was held in Cherokee County pursuant 

to Iowa Code section 229.13 (2011). The district court found Cubbage 

seriously mentally impaired and, due to his dementia and executive 

dysfunction, he was a danger to himself and others. Thus, the district 

court ordered Cubbage placed in the Pomeroy Care Center for 

appropriate treatment under the care of Dr. Ted George of Pocahontas, 

Iowa. 

Subsequently, on November 24, a state public defender acting on 

behalf of Cubbage, filed a motion pursuant to Iowa Code section 229A.10
5

requesting the court discharge Cubbage from civil commitment. The 

motion provided that the director of human services, the Iowa attorney 

general’s office, and the Iowa public defender’s office mutually agreed 

Cubbage is “unable to obtain further gains from his civil commitment at 

CCUSO” and is “seriously mentally impaired and in need of full-time 

custody and care.” That same day, the district court in Des Moines 

County entered its order discharging Cubbage from commitment under 

section 229A.10 and committing him to the Pomeroy Care Center 

pursuant to Iowa Code chapter 229 and the Cherokee County court’s 

November 16 order.

Before Cubbage began residing at the Pomeroy Care Center, the 

administrator and director of nursing at the care center met with CCUSO 

staff members to discuss Cubbage’s history as a sex offender as well as 

his diagnosis of pedophilia and dementia. The CCUSO staff told the care 

center’s administrator that it was not likely Cubbage would be a risk. 

The administrator was not aware the CCUSO doctors had previously 

opined that Cubbage was a danger to others at the time he was 

committed to the care center. The administrator’s understanding was 

that Cubbage was “being transferred because his physical condition had 

advanced to the point where he could no longer participate in active 

treatment.” The director of nursing at the care center understood that 

Cubbage was a “child predator,” and CCUSO staff told her that he would 

be “no risk at all” to “older folks.” The parties discussed his access to 

children and the care center’s ability to monitor him in the presence of 

children. 

On August 21, 2011, an eight-year-old child visiting the care 

center witnessed Cubbage sexually assaulting Gottschalk. On 
6

November 18, the State transferred Cubbage from the care center to the 

Newton Correctional Facility. 

Gottschalk sued the care center for providing her care in a reckless 

and negligent manner. After Gottschalk’s death, her estate substituted 

itself as the plaintiff. The estate also sued the State for negligence. 

Specifically, the estate alleged the State was negligent because (1) it had 

a duty to “prepare and approve a safety plan to protect the residents” of 

the care center after Cubbage was placed there and (2) it had a duty to 

“inspect and determine whether or not appropriate safety precautions 

were being followed by the Pomeroy Care Center.” The estate also alleged 

the State decreased nursing home oversight thereby “intentionally 

causing an unacceptable risk of injury to the residents.” 

The Pomeroy Care Center brought a cross-claim alleging negligence 

on the part of the State for contribution and indemnity. The care center 

contended the State was negligent because (1) it failed to “properly 

supervise and monitor the co-resident, Cubbage, pursuant to Court 

Order and Iowa code chapter 229;” (2) it represented to “Defendant prior 

to his admission that the co-resident, Cubbage, was no longer a risk or a 

threat to society;” and (3) it represented to “Defendant prior to his 

admission that the co-resident, Cubbage, was no longer a risk or threat 

to elderly victims.” 

The State moved for summary judgment on the estate’s and the 

care center’s causes of action. The State argued that once it discharged 

Cubbage from CCUSO, it owed no duty of care to supervise and monitor 

Cubbage, to create or supervise any safety plan related to Cubbage, or to 

inspect the Pomeroy Care Center and follow-up with regard to safety 

precautions. The State also argued Iowa Code section 669.14(4)

prohibits the care center from suing the State based on the State’s 
7

alleged misrepresentations concerning Cubbage’s risk to other residents 

in the care center. 

In its resistance to the State’s motion for summary judgment, the 

estate argued the State “did not inspect the Pomeroy nursing home to 

determine whether safety protocols were in place,” and the State had a 

“duty of care . . . to warn the residents and assure that safety protocols 

were in place to protect the residents from harm and that a failure to do 

so would constitute negligence.” 

The Pomeroy Care Center resisted the State’s motion by arguing

the State negligently discharged Cubbage, the State acted negligently in 

failing to supervise and monitor Cubbage, and issues of material fact 

precluded summary judgment. The care center also requested an 

extension of time to respond to the State’s summary judgment motion 

pending a ruling on the estate’s motion to compel production of 

documents filed June 19, 2014, and the estate’s motion to inspect court 

records filed June 23. 

The district court granted the State’s motion, concluding that

because Cubbage was unconditionally discharged from CCUSO, the 

State had no statutory or common law duty to supervise, monitor, or 

approve a safety plan, and that “[w]ithout the existence of a duty, any 

claim for negligence [by the Estate or the Pomeroy Care Center] must 

fail.” Further, the court held the doctrine of sovereign immunity 

prevented any claim of misrepresentation against the State pursuant to 

Iowa Code section 669.14(4). Finally, because the court’s ruling 

dismissed all claims against the State, it concluded the estate’s motion to 

compel discovery was moot. 
8

The estate and Pomeroy appealed.1 We transferred the case to the 

court of appeals, which affirmed the district court ruling. We granted the 

estate’s and Pomeroy Care Center’s applications for further review.

II. Scope of Review.

We review a district court ruling on summary judgment for 

correction of errors at law. Sanon v. City of Pella, 865 N.W.2d 506, 510 

(Iowa 2015). Summary judgment is appropriate when the moving party 

demonstrates “there are ‘no disputed issues of material fact and the 

moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Ne. 

Cmty. Sch. Dist. v. Easton Valley Cmty. Sch. Dist., 857 N.W.2d 488, 491–

92 (Iowa 2014)). “A genuine issue of fact exists if reasonable minds can 

differ on how an issue should be resolved. When a fact’s determination 

might affect the outcome of the suit, it is material.” Walker v. State, 801 

N.W.2d 548, 554 (Iowa 2011) (citation omitted). 

“[W]e examine the record in the light most favorable to the party 

opposing the motion for summary judgment” when determining if the 

moving party met its burden. Minor v. State, 819 N.W.2d 383, 393 (Iowa 

2012). Based on the record before the district court, we must determine 

“whether there was a material fact in dispute and if not, whether the 

district court correctly applied the law.” Id. (quoting Robinson v. Fremont 

County, 744 N.W.2d 323, 325 (Iowa 2008)).

We also recognize that “questions of negligence or proximate cause 

are ordinarily for the jury” and “only in exceptional cases should they be 

decided as a matter of law.” Thompson v. Kaczinski, 774 N.W.2d 829, 

1The district court’s summary judgment dismissed only the State from the case 

and the action remains pending as to defendant Pomeroy Development. We granted 

interlocutory appeal.

 
9

832 (Iowa 2009) (quoting Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 

836, 841 (Iowa 2005)).

III. The Estate’s Appeal. 

At the onset of this discussion, we note that the estate has not 

been consistent with its arguments and theories of recovery from the tort 

claim it filed through its appellate brief. We will only consider the issues 

raised by the estate in its appellate brief. In its brief, the estate makes 

three claims. They are set forth as follows:

All of the foregoing demonstrates that a reasonable 

person would be justified to believe that the residents of the 

Pomeroy Care Center would be at foreseeable risk of harm by 

William Cubbage and that there existed a duty of care by the 

State not to release William Cubbage into a target rich 

environment. These facts would also establish a duty to 

warn the residents and assure that safety protocols were in 

place to protect the residents from harm and that a failure to 

do so would constitute negligence. 

A. Whether the State Had a Duty of Care Not to Release 

William Cubbage into a Target-Rich Environment. Before reaching 

the merits of this issue, we must first decide if the estate preserved error 

on this issue. We find the estate did not preserve error on this issue.

A party must ordinarily raise an issue in the district court and the 

district court must decide that issue before we may decide it on appeal. 

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The underlying 

objective of this rule is to ensure “orderly, fair[,] and efficient 

administration” of justice by preventing parties from presenting one case 

at trial and another on appeal. State v. Mann, 602 N.W.2d 785, 790 

(Iowa 1999) (quoting State v. Tobin, 333 N.W.2d 842, 844 (Iowa 1983)). 

Thus, it serves the purpose of ensuring both opposing counsel and the 

district court receive notice of the basis for a claim at a time when 
10

corrective action is still possible. See State v. Johnson, 476 N.W.2d 330, 

334 (Iowa 1991); see also State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997).

In deciding whether a party has preserved error, the purposes of 

our error preservation rules guide us. Lee v. State, 815 N.W.2d 731, 739 

(Iowa 2012); Mann, 602 N.W.2d at 790–91. Accordingly, “we recognize 

an exception to the general error-preservation rule when the record 

indicates that the grounds for a motion were obvious and understood by 

the trial court and counsel.” State v. Williams, 695 N.W.2d 23, 27–28 

(Iowa 2005); In re Det. of Hodges, 689 N.W.2d 467, 470 (Iowa 2004). 

Generally, so long as a party timely brings the nature of the error 

claimed to the attention of the district court, error preservation does not 

turn on the thoroughness of counsel’s researching or briefing. Summy v. 

City of Des Moines, 708 N.W.2d 333, 338 (Iowa 2006), overruled in part 

on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 & 

n.3 (Iowa 2016). Nonetheless, if the court does not actually rule on the 

claim asserted, a party must seek an expanded ruling to preserve it. 

State v. Webster, 865 N.W.2d 223, 231–32 (Iowa 2015). 

In its ruling, the district court stated,

It is factually established that Mr. Cubbage had been 

unconditionally discharged from the CUSSO unit in 

November of 2010. This discharge was not “transitional” or 

“conditional.” Once discharged, the duty of the State to 

supervise or monitor Mr. Cubbage ended. “Discharge” is 

defined by Iowa Code 229A.2(3) as meaning “. . . . an 

unconditional discharge from the sexually violent predator 

program.” At that time, the State owed no duty to provide a 

“safety plan” as contemplated by Iowa Code 229A.8A(6) 

because of the unconditional nature of the discharge. 

Without the existence of a duty, any claim for negligence 

must fail. Further, this Court finds no common law duty as 

defined by prior case law covering the facts of this case. 

Simply stated, since Cubbage was unconditionally 

discharged from CUSSO, there was no statutory or common 

law duty placed upon the State to supervise, monitor or 
11

approve a “safety plan” and absent a duty, Plaintiff’s claims 

in this regard must be dismissed. See Minor v. State, 819 

N.W.2d 383 (Iowa 2012); Leonard v. State, 491 N.W.2d 508 

(Iowa 1992).

The district court did not rule on or consider any claim by the 

estate that the State had a duty of care not to release William Cubbage 

into a target-rich environment. The estate did not make this claim in its 

petition or in its resistance to the State’s motion for summary judgment. 

The first time the estate raised this issue was in its appellate brief. We

do not consider issues for the first time on appeal. Geisler v. City Council 

of Cedar Falls, 769 N.W.2d 162, 166 (Iowa 2009). Accordingly, we will 

not reach this issue because the estate failed to preserve error on the 

issue in this appeal.

B. Whether the State Had a Duty to Warn the Residents of the 

Dangers Cubbage Presented in Order to Protect the Residents from 

Harm. Again, before reaching the merits of this issue, we must first 

decide if the estate preserved error on this issue. The court of appeals 

found the estate did not preserve error on this issue. We disagree.

Here, the estate raised the issue of failure to warn the vulnerable 

residents of the Pomeroy Care Center in its resistance to the State’s 

motion for summary judgment. Thus, the court and the State had notice 

for the basis of this claim. In its order for summary judgment, the 

district court held that “[w]ithout the existence of a duty, any claim for 

negligence must fail,” and found no common law duty applied in this 

case. We find the district court contemplated the failure to warn claim 

raised by the estate in its resistance to the State’s motion for summary 

judgment, thus preserving the theory of negligent failure to warn for 

appeal.
12

The district court determined that once the court discharged

Cubbage from CCUSO, the State owed no duty to warn Gottschalk of the 

dangers Cubbage posed. A negligence claim 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.” Thompson, 

774 N.W.2d at 834 (quoting Stotts v. Eveleth, 688 N.W.2d 803, 807 (Iowa 

2004)). “Whether a duty arises out of a given relationship is a matter of 

law for the court’s determination.” Id. 

Historically, we have considered three factors when determining 

whether a duty to exercise reasonable care exists: “the relationship 

between the parties, the foreseeability of harm, and public policy.”

McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 371 (Iowa 2012). 

We have not viewed these factors as “three distinct and necessary 

elements, but rather as considerations employed in a balancing process.” 

Thompson, 774 N.W.2d at 834. Ultimately, “whether a duty exists is a 

policy decision based upon all relevant considerations that guide us to 

conclude a particular person is entitled to be protected from a particular 

type of harm.” Id. (quoting J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 

589 N.W.2d 256, 258 (Iowa 1999)).

In Thompson, we adopted the duty analysis of the Restatement 

(Third) of Torts: Liability for Physical & Emotional Harm, which provides 

that “the assessment of the foreseeability of a risk” is no longer part of 

the duty analysis, but is “to be considered when the [fact finder] decides 

if the defendant failed to exercise reasonable care.” Brokaw v. WinfieldMt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 391 (Iowa 2010) (quoting 

Thompson, 774 N.W.2d at 835 (citing Restatement (Third) of Torts: Liab. 

for Physical Harm § 7 cmt. j, at 97–98 (Am. Law Inst., Proposed Final 

Draft No. 1, 2005)).
13

Turning our analysis to the Restatement (Third) of Torts, in 

Thompson we held that “[a]n actor ordinarily has a duty to exercise 

reasonable care when the actor’s conduct creates a risk of physical 

harm.” Id. (quoting Thompson, 774 N.W.2d at 834). Only “in exceptional 

cases” will this general duty of reasonable care not apply. Id. (quoting 

Thompson, 774 N.W.2d at 835). “An exceptional case is one in which ‘an 

articulated countervailing principle or policy warrants denying or limiting 

liability in a particular class of cases.’ ” Id. (quoting Thompson, 774 

N.W.2d at 835). 

The Restatement (Third) has addressed the issue of a defendant’s 

liability for the actions of a third party based on a special relationship 

with the person posing risks. Restatement (Third) of Torts: Liab. for 

Physical & Emotional Harm § 41, at 64–65 (Am. Law Inst. 2012). In 

relevant part, it provides,

(a) An actor in a special relationship with another 

owes a duty of reasonable care to third parties with regard to 

risks posed by the other that arise within the scope of the 

relationship.

(b) Special relationships giving rise to the duty 

provided in Subsection (a) include:

. . . .

(4) a mental-health professional with patients.

Id.2 While an affirmative duty might exist pursuant to section 41 of the 

Restatement (Third), “a court may decide, based on special problems of 

2“Section 315 of the Second Restatement of Torts stated the general proposition 

that there is no affirmative duty to control the conduct of a third party from causing 

harm to another.” Restatement (Third) of Torts: Liab. for Physical & Emotional Harm 

§ 41 cmt. a, at 65. Section 41 of the Restatement (Third) “replaces §§ 315(a), 316, 317, 

and 319 and includes an additional relationship creating an affirmative duty, that of 

mental health professionals and patient.” Id.

 
14

principle or policy that no duty or a duty other than reasonable care 

exists.” Id. cmt. b, at 65; see also id. § 7(b), at 77 (Am. Law Inst. 2010).

Prior to our adoption of the Restatement (Third) in Thompson, we 

found a special relationship existed between a psychiatrist and a patient, 

giving rise to a duty to either control the behavior of the other person or 

to protect a third party. Leonard v. State, 491 N.W.2d 508, 510–11 (Iowa 

1992). There, we stated, “that the risks to the general public posed by 

the negligent release of dangerous mental patients would be far 

outweighed by the disservice to the general public if treating physicians 

were subject to civil liability for discharge decisions.” Id. at 512. We 

then held that the duty of care did not apply to the general public. Id. In 

making this decision, “the principle that the scope of the duty turns on 

the foreseeability of harm to the injured person” guided our decision. Id. 

at 511. In Leonard, our analysis only addressed a psychiatrist’s duty to 

members of the general public, and we did “not decide what duty, if any, 

would attach to the discharge decision if the psychiatrist had reason to 

believe some particular person would be endangered by the patient’s 

release.” Id. at 512. 

Before we analyze the facts in this case under the Restatement 

(Third) and Leonard, we must first decide if a special relationship existed. 

In Leonard, the hospital made the decision to release the patient from its 

care. In this case, the State did not make the decision to release 

Cubbage from CCUSO or commit him to the Pomeroy Care Center. The 

district court entered an order discharging Cubbage from CCUSO 

pursuant to Iowa Code section 229A.10. In its order, the court 

acknowledged that it reviewed the motion to discharge and found good 

cause to discharge Cubbage from his civil commitment under chapter 

229A. Implicit in the court’s finding was that the State could not “show 
15

beyond a reasonable doubt that [Cubbage’s] mental abnormality or 

personality disorder remains such that [Cubbage] is likely to engage in 

predatory acts that constitute sexually violent offenses if discharged.” 

See Iowa Code § 229A.10. Under the Code, the court was required to

discharge him. Id.

Another district court held a hearing and committed him to the 

Pomeroy Care Center under Code section 229.13. The court stated its

reason for the commitment was “due to his dementia and executive 

dysfunction, thus being a danger to [himself] and others.” “Dementia” is 

“the loss, usually progressive, of cognitive and intellectual functions, 

without impairment of perception and consciousness.” Dementia, 

Stedman’s Medical Dictionary (27th ed. 2000). Executive functions 

include “[h]igher order cognitive processes such as goal setting, planning, 

organization, adaptive responding, and self-monitoring.” John F. Clarkin

et al., The Role of Psychiatric Measures in Assessment and Treatment, in 

Textbook of Psychiatry 73, 92–93 (Robert E. Hales, Stuart C. Yudofsky, 

Glen O. Gabbard, eds., 5th ed. 2008). In other words, Cubbage was 

committed to the Pomeroy Care Center because his dementia made him 

unable to take care of himself. 

The district courts made the ultimate decision to release Cubbage

from CCUSO and commit him to the Pomeroy Care Center, not the State. 

The courts made their decisions after they considered the evidence before 

them. The courts reviewed the expert testimony and reports and decided 

the law required them to release Cubbage from CCUSO and commit him 

to the Pomeroy Care Center. The courts, in making their decisions, had 

the option of giving as much weight as they thought the expert testimony 

deserved. Crouch v. Nat’l Livestock Remedy Co., 210 Iowa 849, 851–52, 

231 N.W. 323, 324 (1930). The courts could have rejected or accepted 
16

the expert testimony. Id. Furthermore, Iowa Code chapter 229 and 

229A place the responsibility on the court to examine the evidence and 

not merely act as a rubber stamp of the expert testimony. See Jacobs v. 

Taylor, 379 S.E.2d 563, 566 (Ga. Ct. App. 1989) (stating “this court will 

not read the statutory responsibility placed on a committing court . . . as 

consisting merely of ‘rubberstamping’ the opinions of expert witnesses”). 

Although the court had the authority to release Cubbage from CCUSO 

with supervision, it chose not to. Iowa Code § 229A.9A. Instead, one 

court discharged Cubbage from CCUSO and another committed him to 

the Pomeroy Care Center. Neither the director nor any staff member of 

CCUSO had the authority to release or discharge Cubbage. Our courts 

discharged Cubbage. Accordingly, we find there was no special 

relationship to invoke section 41 of the Restatement (Third). 

Consequently, the district court was correct in finding the State had no

duty to warn the residents. 

C. Whether the State Had a Duty to Assure that Safety 

Protocols Were in Place to Protect the Residents from Harm. We just 

found there was no special relationship invoking section 41 of the 

Restatement (Third) to create a duty upon the State to warn Gottschalk 

of Cubbage’s alleged dangerous propensities. For the same reasons that 

the State did not owe a duty to warn Gottschalk, we find the State did 

not have a duty to assure that safety protocols were in place to protect 

the residents from harm.

D. Whether the District Court Erred in Finding the State 

Immune from Liability Under Iowa Code Section 669.14. The State 

claims as an affirmative defense it is immune from liability under the 

Iowa Tort Claims Act. The law provides,
17

The provisions of this chapter shall not apply with 

respect to any claim against the state, to:

. . . .

4. Any claim arising out of assault, battery, false 

imprisonment, false arrest, malicious prosecution, abuse of 

process, libel, slander, misrepresentation, deceit, or 

interference with contract rights.

Iowa Code § 669.14(4).

The record does not disclose any representations made to 

Gottschalk by the State. We have also found the State did not have a 

duty to do so. Accordingly, we need not address this issue as to the 

estate.

E. Conclusion. For all the reasons stated above, we find the 

district court was correct in granting the State’s motion for summary 

judgment against the estate.

IV. The Pomeroy Care Center’s Appeal. 

The Pomeroy Care Center also has not been consistent with its 

arguments and theories of recovery from the petition it filed through its 

appellate brief. We will only consider the issues raised by the care center 

in its appellate brief. In its brief, the care center makes five arguments. 

First, it argues the district court erred in finding as a matter of law that 

the State owed no duty of care to the care center. Next, it argues a 

genuine issue of material fact exists regarding whether the State acted 

negligently in discharging Cubbage from CCUSO. Third, it argues a 

genuine issue of material fact exists regarding whether the State acted 

negligently in performing its role in the civil commitment of Cubbage to 

the Pomeroy Care Center under Iowa Code chapter 229. Fourth, it 

argues a genuine issue of material fact exists regarding whether the State 

acted negligently in failing to supervise and monitor Cubbage. Lastly, it 
18

argues the district court erred in granting the motion for summary 

judgment when a motion to compel was pending.

A. Whether the District Court Erred in Finding as a Matter of 

Law that the State Owed No Duty of Care to the Care Center. The 

crux of the care center’s argument on this issue is that because the State 

had a special relationship with Cubbage, the State had a common law 

duty to accurately warn the care center of Cubbage’s dangerous 

propensities. First, we doubt this issue is preserved. Although raised in 

its petition, the care center did not argue this issue in its resistance to 

the State’s motion for summary judgment. Thus, we do not believe the 

district court considered the issue or ruled upon it. 

Moreover, in its brief, the care center relies on the “Duty to Third 

Parties Based on Special Relationship with Person Posing Risks” now 

contained in section 41 of the Restatement (Third) to support its 

argument. Factually, section 41(b)(2) of the Restatement (Third) appears 

to support the care center’s argument because the representations made 

by the State to the care center were made while Cubbage was in the 

State’s custody. However, we need not decide if section 41(b)(2) is 

applicable to the care center’s claim because at the time any 

representations were made, the State could not release Cubbage from its 

custody, only a court could.

As we previously found, a special relationship does not exist

between the State and Cubbage when the courts discharged him from 

CCUSO and committed him to the care center. The courts made the

decision to discharge Cubbage, not the State. Thus, even if the care 

center had preserved this issue, it is without merit. 

B. Whether a Genuine Issue of Material Fact Exists Regarding 

Whether the State Acted Negligently in Discharging Cubbage from 
19

CCUSO. The care center preserved this issue. However, the undisputed 

facts show the court made the final decision to discharge Cubbage. The 

court was not required to discharge him. Again, our courts are not

rubber stamps, but they are deliberative bodies making decisions based 

upon the evidence before them. The care center cites no authority 

requiring the State to present its case to the court differently at the 

discharge hearing. Thus, the district court was correct in finding no 

duty, and therefore, no genuine issue of material fact exists on this

issue.

C. Whether a Genuine Issue of Material Fact Exists Regarding 

Whether the State Acted Negligently in Performing Its Role in the 

Civil Commitment of Cubbage to the Pomeroy Care Center Under 

Iowa Code Chapter 229. The same reasoning and logic applies to this 

argument as we applied to the issue concerning whether the State acted 

negligently in discharging Cubbage from CCUSO. Thus, the district 

court was correct in finding no duty; therefore, no genuine issue of 

material fact exists on this issue.

D. Whether a Genuine Issue of Material Fact Exists Regarding 

Whether the State Acted Negligently in Failing to Supervise and 

Monitor Cubbage. The resolution of this issue depends on the 

applicability of the “Duty to Third Parties Based on Special Relationship 

with Person Posing Risks” now contained in section 41 of the 

Restatement (Third). As we previously found, the district court 

discharged Cubbage, not the State. Therefore, the State has no duty 

based upon a special relationship. Thus, the district court was correct in 

finding no duty; therefore, no genuine issue of material fact exists on this 

issue.
20

E. Whether the District Court Erred in Granting the Motion 

for Summary Judgment When a Motion to Compel Was Pending. We 

agree with the court of appeals that we need not reach this issue having 

found no duty existed between the State and the care center.

F. Conclusion. For all the reasons stated above, we find the 

district court was correct in granting the State’s motion for summary 

judgment against the care center.

V. Disposition.

We find under the issues preserved that no duty existed as a 

matter of law between the State and Gottschalk or the State and the 

Pomeroy Care Center. Accordingly, we affirm the decisions of the court 

of appeals and the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF 

DISTRICT COURT AFFIRMED.

Cady, C.J., and Appel, J., join this opinion. Waterman and 

Mansfield, JJ., join this opinion but also concur specially. Hecht, J., 

files a dissent in which Zager, J., joins. Zager, J., files a separate dissent 

in which Hecht, J., joins.
21

#14–1326, Estate of Gottschalk v. Pomeroy Dev., Inc.

WATERMAN, Justice (concurring specially). 

I respectfully concur in the majority opinion. I write separately to 

set forth my view that the claims against the State fail on several legal 

grounds not reached by the majority. Because the facts of this case cry 

out for a remedy, I begin by noting this appeal resolves only those claims 

by the plaintiffs and the nursing home against the State of Iowa. The 

plaintiffs will get their day in court on their tort claims against the 

nursing home operator, Pomeroy Development, Inc., which chose to 

accept a known sex offender as an in-patient resident and allegedly failed 

to properly monitor him to protect its vulnerable, elderly residents, 

including Mercedes Gottschalk. 

In my view, the State’s tort duty ended upon William Cubbage’s 

unconditional release from its custody and transfer to the nursing home. 

Upon that transfer, Cubbage became Pomeroy’s responsibility. “Liability 

follows control . . . .” Estate of McFarlin v. State, 881 N.W.2d 51, 64 

(Iowa 2016). A party in control can take precautions to reduce the risk of 

harm to others. See McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 

368, 374 (Iowa 2012) (“The reason is simple: The party in control . . . is 

best positioned to take precautions to identify risks and take measures 

to improve safety.”) Section 41 of the Restatement (Third) of Torts: 

Liability for Physical & Emotional Harm, is directly on point and 

provides, 

(a) An actor in a special relationship with another 

owes a duty of reasonable care to third parties with regard to 

risks posed by the other that arise within the scope of the 

relationship. 

(b) Special relationships giving rise to the duty 

provided in Subsection (a) include: 

. . . . 
22

(2) a custodian with those in its custody[.] 

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 41 

(Am. Law Ins. 2012) [hereinafter Reinstatement (Third)]. The comment 

accompanying that section, entitled “Duty of custodians,” further 

explains, 

Custodians of those who pose risks to others have long owed 

a duty of reasonable care to prevent the person in custody 

from harming others. The classic custodian under this 

Section is a jailer of a dangerous criminal. Other wellestablished custodial relationships include hospitals for the 

mentally ill and for those with contagious diseases. 

Custodial relationships imposing a duty of care are limited to 

those relationships that exist, in significant part, for the 

protection of others from risks posed by the person in 

custody. The duty of care is limited to the period of actual 

custody. 

Id. § 41 cmt. f, at 67 (emphasis added). This bright-line rule is clear, 

easy to apply, and consistent with Iowa caselaw. As the court of appeals 

correctly concluded, 

[U]pon the unconditional discharge of Cubbage from the 

CCUSO—a decision made by the district court—the special 

relationship between the State and Cubbage ended. See 

Iowa Code § 229A.2(4) (“ ‘Discharge’ means an unconditional 

discharge from the sexually violent predator program. A 

person released from a secure facility into a transitional 

release program or released with or without supervision is 

not considered to be discharged.”). After the district court 

issued the discharge order, the State had no ongoing 

obligation to monitor or supervise Cubbage. 

(Footnote omitted.) The district court applied the same analysis in 

entering summary judgment for the State. Once an inmate obtains his 

or her release from incarceration, the state is no longer subject to a tortlaw duty for harm the former inmate inflicts on another person. This noduty rule is not based on foreseeability of harm, but rather reflects a 

policy choice, making tradeoffs between the goals of deterrence and 

victim compensation and the costs of imposing liability. 
23

Foreseeability alone is insufficient to create a duty in tort for the 

misconduct of others. See Thompson v. Kaczinski, 774 N.W.2d 829, 835 

(Iowa 2009) (removing foreseeability from duty analysis). Many inmates 

who serve their time or otherwise win release from jail or prison—or in 

this case, the State’s civil commitment unit for sexual offenders 

(CCUSO)—foreseeably commit more crimes. See Binschus v. State, 380

P.3d 468, 581 (Wash. 2016) (en banc) (recognizing recidivism rate is over 

fifty percent and therefore “one could argue that in almost any case, it is 

foreseeable that an inmate may commit another crime after release”). 

But we have never imposed civil liability on the state for crimes a person 

commits after release from custody. As the drafter’s comment 

recognizes, imposing such tort liability would have a chilling effect on 

parole or bail determinations for pretrial release: 

Courts have been reluctant to impose a duty on actors 

who make discretionary determinations about parole or 

prerelease programs, even though these decisions arise in a 

custodial relationship. Imposing such a duty, thereby 

creating concern about potential liability, might 

detrimentally affect the decisionmaking of parole boards and 

others making similar determinations. 

Restatement (Third) § 41 cmt. f, at 67–68. 

We reached the same conclusion in Leonard v. State and rejected 

“the potential for limitless liability” by the state for harm to persons 

attacked by a former custodial patient. 491 N.W.2d 508, 512 (Iowa 

1992). In Leonard, a state mental hospital discharged a patient, Henry 

Parrish, to outpatient care after treating him for bipolar disorder. Id. at 

509–10. Shortly after his release, Parrish severely beat a coworker, John 

Leonard, without provocation. Id. at 510. Leonard sued the state. Id. 

We held as a matter of law the treating psychiatrist employed by the 

state owed no duty to Leonard, a member of the general public. Id. at 
24

512. We concluded the “risks to the general public posed by the 

negligent release of dangerous mental patients would be far outweighed 

by the disservice to the general public if treating physicians were subject 

to civil liability for discharge decisions.” Id. We feared that “[t]he 

treating physician would indulge every presumption in favor of further 

restraint, out of fear of being sued.” Id. (quoting Sherrill v. Wilson, 653 

S.W.2d 661, 664 (Mo. 1983) (en banc)).

Today’s case is an even stronger one for a no-duty analysis. The 

district court not only ordered Cubbage’s release, but also approved the 

plan whereby he would be transferred to Pomeroy. See Iowa Code 

§ 229A.10 (2011) (providing that a petition for discharge must be 

authorized by the court); id. § 229.13(1)(b) (allowing court to place 

individual with “serious mental impairment” under care of appropriate 

hospital or facility for treatment). 

Other courts have held the government is not liable in tort after an 

inmate’s release from incarceration, even when it is foreseeable he will 

reoffend. In Binschus, a former inmate fatally shot six strangers and 

injured four others in a psychotic episode several months after his 

unconditional release from a county jail. 380 P.3d at 470. Civil actions 

were filed against the county, alleging it negligently failed to diagnose 

and treat his dangerous condition before releasing him. Id. The trial 

court granted the county’s motion for summary judgment based on lack 

of duty and proximate cause. Id. The Washington Supreme Court 

affirmed, holding the county owed no duty to the plaintiffs after the 

inmate’s release from jail. Id. at 472 (noting “[t]he practical implications 

of imposing such a broad duty on jails [would be] striking”); see also 

Fryman v. Harrison, 896 S.W.2d 908, 910 (Ky. 1995) (holding jailer 

“cannot be held individually responsible for the criminal acts of an 
25

inmate” after release from custody), modified by Gaither v. Justice & Pub. 

Safety Cabinet, 447 S.W.3d 629, 638 (Ky. 2014); Holloway v. State, 875 

N.W.2d 435, 447 (Neb. 2016) (holding state was not liable in tort for 

crimes of former inmate because it lacked control “after he was 

released”); cf. Wells v. Walker, 671 F. Supp. 624, 627 (E.D. Ark. 1987) 

(dismissing crime victim’s § 1983 claim because prison officials owed “no 

constitutionally mandated duty to protect private citizens [after inmate] 

was freed”), aff’d, 852 F.2d 368 (8th Cir. 1988).

Cubbage was not under state supervision when he assaulted 

Mercedes Gottschalk. Indeed, courts in most states, including Iowa, 

reject governmental tort liability even for crimes committed by parolees 

or probationers who are under state supervision. Fitzpatrick v. State, 

439 N.W.2d 663, 667–68 (Iowa 1989) (affirming dismissal of tort claim 

against parole officer by victim shot by parolee); Bartunek v. State, 666 

N.W.2d 435, 442 (Neb. 2003) (collecting cases). These courts decline to 

find a duty because “[t]he level of control afforded to a parole or 

probation officer is not such that an officer . . . ‘takes charge of a third 

person,’ ” given that the parolee or probationer is “generally free to 

conduct his or her day-to-day affairs.” Bartunek, 666 N.W.2d at 442. 

Courts note that imposing tort liability on government defendants for 

crimes committed by offenders under supervision would result in 

continued detentions and discourage parole, probation, or pretrial 

release. Compare Sorge v. State, 762 A.2d 816, 821–22 (Vt. 2000) 

(declining to impose tort duty on state for juvenile in custody and 

collecting cases), with Leonard, 491 N.W.2d at 512 (noting that imposing 

liability on therapist for patient’s postrelease assault would cause 

doctors to overrestrain patients). If the State is not liable in tort for 
26

crimes committed by an offender released under supervision, it cannot 

be liable in tort after an unconditional release.

Cubbage made no threats against Mercedes Gottschalk or any 

other Pomeroy resident while he was in state custody at CCUSO. He had 

never met her. This case is distinguishable from those imposing a duty 

for failing to take action when an inmate or patient in custody names 

someone he overtly threatens to harm upon his release. See, e.g.,

Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 343 (Cal. 1976) 

(imposing liability on state when patient in custody confided in stateemployed therapist that he intended to kill Tatania Tarasoff and made 

good on his threat after his release from hospital). Generalized threats 

while in custody are insufficient to create a duty to warn. Four years 

after deciding Tarasoff, the California Supreme Court addressed 

the propriety of imposing on those responsible for releasing 

or confining criminal offenders a duty to warn of the release 

of a potentially dangerous offender who . . . has made a 

generalized threat to a segment of the population. 

Thompson v. County of Alameda, 614 P.2d 728, 733 (Cal. 1980). While in 

a county jail, an inmate threatened to “take the life of a young child 

residing in the neighborhood” without naming any child. Id. at 730. The 

jailers released him into the temporary custody of his mother without 

warning her or other parents in the neighborhood of his threat. Id. 

Within twenty-four hours, he killed a young child who lived a few doors 

away. Id. The parents sued the county, alleging it breached a duty to 

warn parents in the neighborhood. Id. The trial court dismissed the 

lawsuit, and the California Supreme Court affirmed, holding such a 

generalized threat did not support a duty to warn. Id. at 730, 738. The 

court declined to impose “blanket liability” on the county for failing to 

warn neighborhood parents or the offender’s mother of his dangerous 
27

tendencies upon his supervised release. Id. at 734. The court 

distinguished Tarasoff because neither “a direct or continuing 

relationship between” the parties and the county existed, nor was the 

victim a “foreseeable or readily identifiable target” when the offender 

made merely a generalized threat. Id. The court noted requiring the 

county to warn the public would “jeopardize rehabilitative efforts” of 

programs like parole and probation because “authorities would be far 

less likely to authorize release given the substantial drain on their 

resources which such warnings might require.” Id. at 737. Additionally, 

the court declined to impose a duty to warn the offender’s mother, his 

custodian, noting she had been “aware of her son’s incarceration for the 

previous 18 months.” Id.

I see a parallel between these cases. Pomeroy was aware of 

Cubbage’s incarceration and crimes when it received him into its care. 

Any warning would have been inherently generalized in nature, given 

that Cubbage did not make threats toward any Pomeroy resident—either 

generally or specifically—before his unconditional discharge from state 

custody. 

There is another bar to recovery against the State—the common 

law public-duty doctrine.3 In Estate of McFarlin, we applied the publicduty doctrine to affirm a summary judgment motion dismissing tort 

claims against the state in a wrongful-death action arising out of a 

boating accident on a state-owned lake, a confined area. 881 N.W.2d at 

3The district court and court of appeals did not reach the public-duty doctrine, 

but the State included the doctrine in its motion for summary judgment and appellate 

briefs as an alternative ground for dismissal. “We will consider an alternative ground 

raised in the district court and urged on appeal even though the district court [did] not 

. . . rule on the alternative ground.” Hawkeye Foodservice Distribution, Inc. v. Iowa 

Educators Corp., 812 N.W.2d 600, 610 (Iowa 2012). 

 
28

64. We noted the applicability of the public-duty doctrine under the 

Third Restatement: 

In Thompson v. Kaczinski, we adopted section 7 of the 

Restatement (Third) of Torts: Liability for Physical and 

Emotional Harm. The reporter’s note to section 7 

acknowledges the continued vitality of the public-duty 

doctrine: 

Deference to discretionary decisions of another branch 

of government. The “public-duty” doctrine is often 

explained as preventing government tort liability for 

obligations owed generally to the public, such as 

providing fire or police protection. Only when the duty 

is narrowed to the injured victim or a prescribed class 

of persons does a tort duty exist. 

Section 37 provides that “[a]n actor whose conduct has not 

created a risk of physical . . . harm to another has no duty of 

care to the other unless a court determines that one of the 

affirmative duties provided in §§ 38–44 is applicable.” 

Section 40, entitled “Duty Based on Special Relationship 

with Another” provides that “[a]n actor in a special 

relationship with another owes the other a duty of 

reasonable care with regard to risks that arise within the 

scope of the relationship.” We conclude the public-duty 

doctrine remains good law after our adoption of sections of 

the Restatement (Third) of Torts. 

Id. at 59–60 (alterations in original) (footnote omitted) (citation omitted) 

(first quoting Restatement (Third) § 7, reporter’s note cmt. g, at 93–94 

(Am. Law Inst. 2010); then quoting id. § 37, at 2; and then quoting id.

§ 40(a), at 37). Earlier cases, which remain good law, applied the publicduty doctrine to dismiss tort claims brought by persons injured by 

someone the police released from custody or failed to detain or monitor. 

See Fitzpatrick, 439 N.W.2d at 667–68; Hildenbrand v. Cox, 369 N.W.2d 

411, 414–16 (Iowa 1985) (affirming summary judgment dismissing tort 

claim by estate of drunk driver who died in accident shortly after police 

questioned but failed to arrest him following his collision with a planter 

on the town square); see also Kolbe v. State, 625 N.W.2d 721, 729–30 

(Iowa 2001) (holding public-duty doctrine barred tort claim by victim of 
29

visually impaired driver to whom the state carelessly issued a driver’s 

license); Sankey v. Richenberger, 456 N.W.2d 206, 208–09 (Iowa 1990) 

(dismissing tort claims against police chief by victims shot at city council 

meeting chief attended). The plaintiffs and Pomeroy fail to cite a case 

from any jurisdiction imposing tort liability on a state or local 

government for the acts of a former patient or inmate after his or her 

unconditional release from custody. If we allowed the claimants in 

today’s case to recover against the State, it would be difficult to set a 

limiting principle on the scope of governmental liability for third-party

criminal conduct. 

The district court and court of appeals determined the State was 

entitled to summary judgment against Pomeroy based on the State’s 

statutory immunity under Iowa Code section 669.14(4).4 Our court’s 

majority did not need to reach that issue or the public-duty doctrine after 

affirming summary judgment on other grounds. I mention that 

immunity and the public-duty doctrine as additional reasons the 

analysis in the dissenting opinions fails to salvage the claims against the 

State. 

For all these reasons, I concur in the majority’s opinion affirming 

the decision of the court of appeals and district court’s summary 

judgment. 

Mansfield, J., joins this special concurrence. 

4The district court granted the State’s motion for summary judgment on 

Pomeroy’s negligent misrepresentation claim based on Iowa Code section 669.14(4). 

Pomeroy did not challenge that ruling on appeal, and the court of appeals affirmed the 

district court for that reason.

 
30

#14–1326, Estate of Mercedes Gottschalk v. Pomeroy Dev., Inc.

HECHT, Justice (dissenting).

I cannot agree with the duty analysis undertaken by the majority, 

and I therefore respectfully dissent. The summary judgment record 

leaves little doubt that William Cubbage was a highly dangerous sexually 

violent predator (SVP) with a substantial likelihood of reoffending when 

he was committed to the civil commitment unit for sexual offenders 

(CCUSO). Cubbage had not made progress in the CCUSO treatment 

program prior to his release into a small-town nursing home, and 

CCUSO administrators believed he continued to present a danger to 

himself and others such that he must continue to be involuntarily 

detained. Although Alzheimer’s-related dementia was a factor motivating 

the CCUSO administrators’ decision to transfer him out of the SVPtreatment program, our duty analysis cannot overlook the fact that 

Cubbage was an unsuccessfully treated sexual predator at the time the 

transfer plan was formulated and implemented by the department of 

human services (DHS), representatives of the attorney general’s office, 

and representatives of the Iowa public defender’s office. Summary 

judgment should not have been granted.

I. Additional Background Facts and Proceedings. 

I begin with evidence in the summary judgment record that 

informs my analysis. Cubbage was adjudicated an SVP in 2002 and 

committed to CCUSO at the age of seventy-one. Considerable evidence 

supported his adjudication, including four convictions for sexual 

misconduct perpetrated against children. The convictions in 1987 

(lascivious acts), 1991 (indecent contact with a child), 1997 (indecent 

contact with a child), and 2000 (assault with intent to commit sexual 

abuse) demonstrate that Cubbage is undoubtedly a member of what our 
31

legislature has described as a “small but extremely dangerous group” of 

persons whose “likelihood of engaging in repeat acts of predatory sexual 

violence is high.” Iowa Code § 229A.1 (2011). 

In his initial commitment evaluation at CCUSO in 2002, Cubbage 

scored at high risk to reoffend on two actuarial assessments. The 

evaluator concluded Cubbage was “a menace to the health and safety of 

others” if “not confined in a secure facility, as a defined by Chapter 

229A.” The mental abnormality supporting Cubbage’s classification as a 

predator was a personality disorder with antisocial and narcissistic 

features causing him to engage in sexually aggressive behavior.

In enacting chapter 229A, our legislature observed that SVPs tend 

to have “antisocial personality features” requiring “very long-term” 

treatment using rehabilitation modalities that are different from those 

utilized in treating mentally ill persons committed involuntarily under 

chapter 229. Id. The summary judgment record reveals Cubbage was 

resistant to treatment at CCUSO. In fact, he stopped participating 

altogether in treatment sometime in 2005. By the time of his final 

CCUSO annual evaluation in July 2010, Cubbage “continu[ed] to display 

dynamic risk factors that result in him being likely to engage in 

predatory acts constituting sexually violent offenses if discharged.” 

Notably, the report generated as part of the 2010 evaluation concluded 

Cubbage—then age eighty-one—had not shown a change in the mental 

abnormality that led to his SVP commitment. For that reason, the 

evaluator who authored the 2010 report found Cubbage was not ready 

for transitional release under chapter 229A because he failed to meet five 

of the ten criteria governing eligibility for transitional placement. See id.

§ 229A.8A.
32

In particular, Cubbage was ineligible for transitional placement 

because he had not yet achieved and demonstrated significant insights 

into his sex offending cycle, he had not accepted responsibility for his 

past behavior or understood the impact of sexually violent crimes on 

victims, and he had a major discipline report in June 2010 for disrespect 

and sexual behavior. See id.

Notwithstanding Cubbage’s unsuccessful course of treatment 

during eight years of detention as an SVP, his persisting mental 

abnormality, and his failure to meet the criteria for transitional release, 

the evaluator opined that “the dynamics involved which have determined 

Mr. Cubbage [is] more likely than not to re-offend in a sexually violent 

manner have changed.” The evaluator’s report opaquely concluded 

Cubbage “does not appear to meet the threshold of [an SVP] as defined in 

Chapter 229A and currently would be more appropriately characterized 

as a person who has committed sexual offenses in the past and may be 

suffering from early stages of dementia.”5

CCUSO administrators decided to transfer Cubbage out of the 

program. In furtherance of the transfer plan, civil commitment 

proceedings were commenced against Cubbage in the district court for 

Cherokee County under chapter 229. The State’s petition alleged 

Cubbage was a danger to himself and others due to his dementia and 

executive dysfunction. At that time, Cubbage was a sexual predator who 

5The report thus appears to be internally inconsistent. On the one hand, it 

discloses Cubbage continues to present a risk to reoffend; on the other hand, the report 

suggests Cubbage “does not appear” to meet the threshold of an SVP. The report noted 

that Cubbage appeared to be “less able to participate due to his cognitive impairments 

and other medical conditions.” The record does not reveal the extent or severity of 

Cubbage’s cognitive impairments as they may have existed in July 2010 or thereafter; 

nor does it explain why an SVP with dementia would be less dangerous to others than 

an SVP without dementia. 

 
33

had not been successfully treated at CCUSO for the attributes that made 

him dangerous to others. 

On November 16, 2010, the district court for Cherokee County 

entered an order for hospitalization that directed Cubbage be placed in 

the Pomeroy Care Center for treatment. On November 24, 2010, the 

execution of the State’s plan to move Cubbage out of CCUSO—the 

institution created for the express purpose of detaining sexual 

predators—moved quickly forward. On that day, a motion to discharge 

Cubbage from his commitment to CCUSO under chapter 229A was filed 

in Des Moines County district court. The motion advised the court of a 

mutual agreement between the director of DHS and representatives of 

the Iowa attorney general’s office and the Iowa public defender’s office 

that Cubbage “is unable to obtain any further gains from his civil 

commitment at CCUSO”6 and is “seriously mentally impaired and in 

need of full-time custody and care.” 

The motion to discharge Cubbage notably failed to inform the 

district court that he had been unsuccessfully treated for the mental 

abnormality predisposing him to commit sexually violent offenses. 

Hearing no resistance to the transfer orchestrated by the State, the 

district court entered an order that same day implementing the 

stipulated plan discharging Cubbage from commitment under chapter 

229A and committing him to the Pomeroy Care Center under chapter 

229. 

6Because the record reveals Cubbage had been uncooperative in the treatment 

process since at least 2005 and his mental abnormality making him likely to reoffend 

remained as of July 2010, it is unclear to me what “gains” Cubbage had achieved while 

at CCUSO.

 
34

As the majority has accurately detailed, Cubbage allegedly had 

nonconsensual sexual contact with Gottschalk, a patient at the Pomeroy 

Care Center in August 2011. Gottschalk filed a claim with the state 

appeal board asserting DHS was negligent in failing to (1) prepare and 

provide a discharge safety plan for Cubbage, (2) follow up with the 

Pomeroy Care Center to assure Cubbage was properly restrained and/or 

supervised there, and (3) warn the residents of the Pomeroy Care Center 

that a sexual deviant was living among them. This action was 

subsequently commenced by Gottschalk’s estate against Pomeroy Care 

Center and the State. 

The State filed a motion for summary judgment asserting it owed 

no duty to Gottschalk under either Iowa Code chapter 229 or 229A after 

Cubbage’s discharge from CCUSO. The district court granted the State’s 

summary judgment motion, concluding the State owed no duty to 

Gottschalk after Cubbage was unconditionally discharged from CCUSO.

II. The Duty Analysis.

I agree with the majority’s conclusion that the issue of whether the 

State owed a duty to warn Gottschalk of the risk of physical harm posed 

to her by her exposure to Cubbage—an unsuccessfully treated SVP—was 

preserved for our review. The theory of liability based upon the State’s 

failure to warn Gottschalk was asserted in Gottschalk’s appeal board 

claim and in the plaintiff’s resistance to the State’s motion for summary 

judgment. Although the district court’s summary judgment ruling made 

no reference to warning, I conclude this theory of liability was clearly 

before the district court. Because the ruling was based on the 

proposition that the 2010 order discharging Cubbage from CCUSO 

terminated any responsibility of the State for Cubbage’s postdischarge 

conduct as a matter of law, a motion under Iowa Rule of Civil Procedure 
35

1.904(2) requesting the district court to expressly rule on whether the 

State owed a duty to warn Gottschalk about the risk of her exposure to 

Cubbage at the Pomeroy Care Center would have been pointless. Thus, 

like the majority, I conclude we should address whether the State owed a 

duty to warn Gottschalk of the risk of physical harm posed to her by 

Cubbage. 

Unlike the majority, however, I conclude the State owed a duty to 

warn Gottschalk. An actor ordinarily owes a duty to exercise reasonable 

care when the actor’s own conduct creates a risk of physical harm. 

Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009). As we noted 

in Thompson, this general duty is explained in section 7 of the 

Restatement (Third) of Torts. Id. (citing Restatement (Third) of Torts: 

Liab. for Physical Harm § 7, at 90 (Am. Law Inst., Proposed Final Draft 

No. 1, 2005)). However, the majority has chosen to view the physical and 

emotional harm claimed by the plaintiff in this case as harm allegedly

caused exclusively by Cubbage—not the conduct of state actors. 

Accordingly, the court’s analysis of the duty issue is not based on the 

general duty principles under section 7 of the Restatement (Third).7

7Although the majority has addressed the State’s liability under the rubric of 

special relationship, I would leave room for the possibility that the State’s conduct in 

this case directly caused a risk of physical harm to Gottschalk by transferring 

Cubbage—an unsuccessfully treated SVP—to the Pomeroy Care Center. See

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 37 cmt. d., at 4–5 

(Am. Law Inst. 2012) (noting that “an actor’s conduct may increase the natural or thirdparty risk” and thereby “creates risks of its own”). A reasonable fact finder could find 

that the State’s transfer of Cubbage to a target-rich nursing home environment that 

lacked CCUSO-like security substantially increased the risk that Cubbage would offend 

if reasonable warnings were not given to those exposed to the risk at the care center. 

Such risk-creating conduct is governed by the ordinary duty of reasonable care 

addressed in section 7 of the Restatement (Third). Id. § 7, at 77 (Am Law Inst. 2010). 

Because the majority has addressed the State’s liability in this case under the rubric of 

special relationship, however, I will similarly focus my analysis there as well. I would, 

however, reach the same result under a section 7 duty analysis.

 
36

The proposition that an actor generally owes no duty of care with 

respect to risks of physical harm created by another is expressed in 

section 37 of the Restatement (Third). Restatement (Third) of Torts: Liab. 

for Physical & Emotional Harm § 37, at 2 (Am. Law Inst. 2012). This 

proposition constitutes a no-duty rule based on policy. Id. § 37 cmt. b,

at 5. There are exceptions to this no-duty rule, however. In some 

circumstances, the common law imposes an affirmative “duty to take 

action to prevent or ameliorate the risk of harm created by others.” Id. 

For example, “[a]n actor in a special relationship with another owes a 

duty of reasonable care to third persons with regard to risks posed by the 

other that arise within the scope of the relationship.” Id. § 41(a), at 64–

65. Section 41 lists several special relationships giving rise to a duty of 

reasonable care: a parent with children, a custodian with those in its 

custody, an employer with employees when the employment facilitates 

harm to third parties, and mental-health professionals with patients. Id.

§ 41(b). This list of special relationships supporting the existence of a 

duty is not exclusive. Id. § 41 cmt. i, at 73.8 

I would hold in this case that a special relationship existed 

between the State and Cubbage supporting the imposition of a duty to 

warn Gottschalk. The relationship between CCUSO and Cubbage is 

closely analogous to a mental-health professional–patient relationship. 

See id. § 41(b), at 65. Obvious and compelling policy reasons support 

8Similarly, comment b to section 37 of the Restatement (Third) explains that 

the affirmative duties identified in [Chapter 7 of the Restatement (Third) 

of Torts] are not an exclusive list; courts may identify additional areas for 

affirmative duties in the future, just as courts may decide, for reasons of 

policy or principle, that additional no-duty rules should be recognized.

Restatement (Third) of Torts: Liab. for Emotional & Physical Harm § 37 cmt. b, 

at 3.

 
37

the imposition of a duty of care on the State as it transferred an 

unsuccessfully treated—and therefore dangerous—sexual predator to a 

nursing home populated by a finite number of especially vulnerable 

residents. A reasonable fact finder could find on this record that 

Cubbage was an SVP whose persistent mental abnormality rendered him 

likely to reoffend sexually before and after the transfer to Pomeroy Care 

Center. He had been resistant to treatment at CCUSO during the five 

years prior to his discharge, and the evidence tending to prove he had 

not been meaningfully rehabilitated during his detention is 

overwhelming. 

The duty I would recognize in this case is distinguishable from the 

one claimed but rejected by this court in Leonard v. State, 491 N.W.2d 

508 (Iowa 1992). In Leonard, we held a state-employed psychiatrist who 

discharged a patient from a mental-health institute owed no duty to a 

person subsequently injured by the patient. Id. at 512. We reasoned 

that a no-duty rule was justified in that case because the plaintiff was a 

member of the public at large—not a reasonably foreseeable victim of the 

patient’s dangerous and violent tendencies. Id. at 511–12. In this case, 

Gottschalk was not merely a member of the public at large. A reasonable 

fact finder could find she was among the discrete universe of known 

Pomeroy Care Center residents who would foreseeably be exposed to 

Cubbage’s predatory behavior. 

The majority nonetheless affirms the no-duty rule applied by the 

district court in this case because the State obtained a discharge order 

from the district court prior to Cubbage’s transfer to the Pomeroy Care 

Center. I am not persuaded. The motion for discharge was presented to 

the district court in the form of a stipulated proposed disposition. 

Although the resulting order discharging Cubbage from CCUSO was 
38

clearly binding on the parties who were before the court stipulating to 

the proposed discharge, we should not conclude it absolved the State of a 

duty of care to Gottschalk under the extraordinary circumstances 

presented here. 

We should not view the court order effectuating the stipulated 

discharge of Cubbage from CCUSO as an immunity-creating device for 

the State. I am not prepared to accept the notion that the district court 

for Des Moines County viewed the discharge order as adjudication of the 

nature and extent of the risk created by Cubbage upon discharge. The 

order was instead a procedural device allowing the parties before the 

court to change the location of Cubbage’s placement by agreement. No 

one appeared before the court opposing the transfer. No one appeared 

voicing caution about the grave risk that would be created by discharging 

Cubbage from CCUSO and transferring him to a nursing home. 

The administrators of CCUSO wanted to move Cubbage out 

because he was resistant to SVP treatment and suffered from dementia; 

the Pomeroy Care Center had an interest in filling a bed; and Cubbage 

had no reason to oppose the move to a less-restrictive environment in the 

nursing home. These are not circumstances engendering a legitimate 

policy-based no-duty rule for a class of cases. On the contrary, they are 

circumstances crying out for the imposition of a duty of reasonable care 

under our tort law. I would therefore reverse the summary judgment and 

remand for further proceedings in the district court. 

Zager, J., joins this dissent.
39

#14–1326, Estate of Gottschalk v. Pomeroy Dev., Inc.

ZAGER, Justice (dissenting).

I join the well-reasoned dissent by Justice Hecht. I agree that the 

unique facts of this case do not lend themselves to a determination by 

means of summary judgment. Rather, I believe there are sufficient 

factual issues involved in this case for the State to have assumed a 

general, and perhaps a special, duty of care to the plaintiff.

It is important to look at the factual scenario that played out in 

this case and compare it to the legislative mandates. Cubbage was 

sentenced to several terms of imprisonment. Rather than release 

Cubbage from State custody following his latest prison sentence, the

State elected to commence civil commitment proceedings to have 

Cubbage adjudicated a sexually violent predator. See Iowa Code 

§ 229A.4 (2011). This was based on his lifetime of sexual offenses, many 

of them against children. As noted, Cubbage was clearly one of a “small 

but extremely dangerous group” of persons whose “likelihood of engaging 

in repeat acts of predatory sexual violence is high.” Id. § 229A.1.

Several legislative findings are also significant when discussing the 

sexually violent predator (SVP) statutes. First, SVPs are not meant to be 

treated under Iowa Code chapter 229. Compare id. §§ 229.1A, .6, with 

id. § 229A.1 (“In contrast to persons appropriate for civil commitment 

under chapter 229, sexually violent predators generally have antisocial 

personality features that are unamenable to existing mental illness 

treatment.”). Chapter 229 is intended to provide treatment to persons 

with serious mental disorders and then return them to the community. 

Id. § 229.15 (outlining procedure for periodic reports of individuals 

hospitalized under chapter 229). Second, 

[t]he general assembly finds that sexually violent predators’ 

likelihood of engaging in repeat acts of predatory sexual 
40

violence is high and that the involuntary commitment 

procedure under chapter 229 is inadequate to address the 

risk these sexually violent predators pose to society.

Id. § 229A.1. Last, there are several other references in the legislative 

findings of the SVP statute regarding “public safety concerns” and “the 

need to protect the public.” Id.

However, adjudicating an individual as an SVP under our statutes 

is not quick or easy, nor should it be. At the beginning of the 

proceedings, Cubbage received the right to appointed counsel and the 

right to retain experts. Id. § 229A.6(1)–(2). The Iowa Rules of Evidence 

applied to the hearing, as well as the Iowa Rules of Civil Procedure. Id.

§ 229A.7(4). Cubbage was entitled to a full trial to either a judge or a 

jury. Id. The State had the burden of proving beyond a reasonable 

doubt that Cubbage was an SVP. Id. § 229A.7(5). The State felt 

compelled to bring this action and was successful in meeting its burden. 

Cubbage was “committed to the custody of the director of the department 

of human services for control, care, and treatment until such time as 

[his] mental abnormality has so changed that [he] is safe to be placed in 

a transitional release program or discharged.” Id. § 229A.7(5)(b). 

Cubbage was civilly committed to the Civil Commitment Unit for Sex 

Offenders (CCUSO) in May 2002.

To say that Cubbage’s progress in treatment at CCUSO as a violent 

sexual predator was abysmal is an understatement. It is only necessary 

to refer to the most recent annual report for Cubbage prior to his 

discharge, dated July 13, 2010, to confirm these facts. Cubbage chose 

not to be interviewed for the annual evaluation. Cubbage had not 

actively participated in treatment programming since 2005. Cubbage did 

not meet the criteria for the transitional release program as (1) there was 

no change in his mental abnormality, and (2) he did not meet five of the 
41

ten statutory criteria for transitional release. See id. § 229A.8A(2)–(3). 

The psychologist’s evaluation was that Cubbage “continues to display 

dynamic risk factors that result in him being likely to engage in 

predatory acts constituting sexually violent offenses if discharged.” The 

most recent annual report disclosed that on June 10, 2010, and again on 

June 29, Cubbage received behavioral incident reports for disrespect and 

sexual behavior, with the second incident classified as a “major incident 

report.” However, because of a diagnosis of early onset of Alzheimer’s, 

and a vague reference to a lack of executive cognitive ability, the State 

deemed Cubbage appropriate for unconditional discharge from CCUSO to 

the Pomeroy Care Center. See id. § 229A.10 (outlining the procedure for 

a petition for discharge from secure confinement).

With this history in mind, I agree with and endorse Justice Hecht’s 

duty analysis and would find, at a minimum, that a special relationship 

existed between the State and Cubbage to support the imposition of a 

duty to warn Gottschalk. It is unnecessary for me to repeat this duty 

analysis here. Suffice that I would also reject the no-duty rule applied by 

the district court.

What prompts me to write separately is the summary and 

perfunctory fashion in which the State orchestrated the discharge of an 

obviously dangerous sexual predator from CCUSO and then facilitated 

his placement in a nursing home among a highly vulnerable population. 

This is troubling to me on many levels, both legally and factually. The 

State of Iowa has been responsible for the care, custody, and control of 

Cubbage for decades, either in the prison system or based on his 

commitment as an SVP. The State expended great time and expense to 

civilly commit Cubbage and thereafter to keep him confined. The need 

for this commitment clearly continued up to the date of his unconditional 
42

discharge from CCUSO. This commitment was to continue until “[his] 

mental abnormality has so changed that [he] is safe to be placed in the 

transitional release program or discharged.” Id. § 229A.7(5). As reflected 

in his records and evaluations, Cubbage’s mental abnormality had not 

changed prior to the time of his unconditional discharge. Likewise, the 

latest psychological evaluation of Cubbage resulted in an opinion that 

Cubbage “continues to display dynamic risk factors that result in him 

being likely to engage in predatory acts constituting sexually violent 

offenses if discharged.” This conclusion is clearly supported by the two 

very recent incidents of sexual behavior. Under what possible 

circumstances would the State ever consider recommending that 

Cubbage was suitable for unconditional discharge?

The answer is that in May 2010, discussions began about how the 

State could remove Cubbage from his commitment at CCUSO “pending 

DHS Director’s approval.” Then, perhaps not surprisingly, the July 2010 

annual report concluded that Cubbage “does not currently meet the 

definition of a sexually violent predator as described in 229A.” Based on 

all the information described above, this conclusion lacks any credibility 

in law or fact. But by this time, the decision had apparently been made 

to find another placement for Cubbage; the only question was how the 

State would accomplish this goal.

Anyone who is familiar with the SVP statutes and our 

accompanying caselaw can appreciate just how difficult it is for an 

individual to either transition from CCUSO or be discharged. Any 

decision for either transition or discharge should be well-informed and 

meet the strict standards as provided in the statute. See id. §§ 229A.8A, 

.9A, .10. In other words, the discharge of a sexually violent predator 

should be tested by the law and the facts, and not as a mere 
43

accommodation to the State which simply no longer wants to incur the 

time, expense, or inconvenience that is involved with the care, custody 

and control of this SVP. Of utmost importance, any decision involving 

the unconditional discharge of an SVP must involve an analysis of the 

effect of the decision on public safety. No critical analysis or testing was 

even attempted here. Instead, the motion for discharge was presented to 

the district court as a stipulated proposed disposition. There was no 

record, no evidence, and no discussion. What is also important to note is 

that there are a number of alternatives provided for in the statute that do 

not involve the unconditional discharge of a civilly committed SVP. See 

id. §§ 229A.8A, .9A. Instead of even considering these alternatives, or 

advising the district court of these various placements, the State simply 

recommended an unconditional discharge of Cubbage. Then to 

compound matters, the State agreed to a long-term mental health

commitment for Cubbage, a placement which is clearly inappropriate for 

a person with Cubbage’s background.

With this procedural background, the State now argues it is 

insulated from any duty it might have had, and any corresponding 

liability, because it no longer has care, custody, and control over 

Cubbage. It also relies on the argument that a district court judge 

approved the order of discharge for Cubbage and a different district court 

judge approved the mental health commitment order for Cubbage. I 

cannot agree that the fact that the orders were approved by a district 

court judge somehow allows the State to avoid the duty to act reasonably 

to protect the vulnerable nursing home residents who would be exposed 

to Cubbage as a consequence of the discharge and transfer arrangement. 

The State had the care, custody, and control over Cubbage for decades. 

When it no longer wanted this responsibility, regardless of the obvious 
44

risks it posed to public safety, it attempted to use the court system to 

absolve itself of all further responsibility and liability. This is 

unconscionable. Unfortunately, this is not the only context in which the 

State attempts to insulate itself from liability when it decides that it no 

longer wants to provide for the care, custody, and control over 

individuals it has historically assumed responsibility for, and to whom it 

now decides it no longer wants this obligation. Our court system has 

been used in similar situations involving our mentally ill citizens and our 

mental health institutes. While it is clearly within the State’s prerogative 

to take such actions as it deems appropriate, it should also understand 

that there is a concomitant duty of reasonable care under our tort law. 

Likewise, I think it is incumbent upon our judicial officers to more 

closely examine scenarios like the facts and circumstances presented 

here. I would reverse the district court grant of summary judgment to 

the State and remand for further proceedings.

Hecht, J., joins this dissent.