IN THE COURT OF APPEALS OF IOWA

No. 4-047 / 13-0672

Filed March 12, 2014

TIMOTHY MICHAEL BASQUIN,

Plaintiff-Appellant,

vs.

CITY OF FAIRBANK, IOWA,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Buchanan County, Joel A. 

Dalrymple, Judge.

The plaintiff appeals from the district court order granting summary 

judgment in favor of the defendant. AFFIRMED.

Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.

Wilford H. Stone and Amy L. Reasner of Lynch Dallas, P.C., Cedar 

Rapids, for appellee.

Considered by Vaitheswaran, P.J., Mullins, J., and Eisenhauer, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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EISENHAUER, S.J.

Timothy Basquin appeals from the district court order granting summary 

judgment in favor of the City of Fairbank. He argues he generated a fact 

question on the issue of whether the City willfully or maliciously failed to warn 

against a dangerous condition on its property. We review the district court’s 

grant of summary judgment for the correction of errors at law. Jones v. Univ. of 

Iowa, 836 N.W.2d 127, 139 (Iowa 2013). 

Summary judgment should be granted only where there is no genuine 

issue of material fact in dispute and the moving party is entitled to judgment as a 

matter of law. Id. In reviewing a grant of summary judgment, we view the record 

in the light most favorable to the nonmoving party. Id. at 140. We draw all 

legitimate inferences the evidence bears in order to establish the existence of a 

fact question. Id.

In light of the foregoing requirements, we find the evidence establishes 

that on January 31, 2010, Basquin was operating a snowmobile near a 

pedestrian bridge owned by the City. The bridge was tethered with a slack, 

unmarked cable, which was not visible to Basquin. When the snowmobile’s skis 

hit the tethering cable, the cable smashed through the snowmobile’s windshield 

and Basquin was seriously injured. 

Basquin filed an action against the City, alleging it willfully or maliciously 

failed to guard or warn the public of a dangerous condition. After a hearing, the 

district court granted the City’s motion for summary judgment. The court found 

the City owed Basquin no duty. It held Basquin failed to present sufficient 

evidence by which a reasonable person could find the City acted in a manner 
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amounting to a willful or malicious failure to guard or warn against a dangerous 

condition as required under Iowa Code section 321G.22 (2009). 

Basquin contends the district court applied an improper standard of law. 

He first complains the district court erred in weighing the evidence concerning the 

condition of the cable because it found “the coloring and condition of the said 

sheathing is a factual question in dispute and thus is given no weight in the ruling 

set forth below.” He argues the court should have viewed the evidence in the 

light most favorable to him and found the sheathing’s coloring and condition 

increased the risk of danger. While we agree a fact finder could reasonably 

conclude the tethering cable presented a dangerous condition, we also agree 

with the trial court’s conclusion this fact is not dispositive in resolving the question 

of whether the City willfully or maliciously failed to warn or guard against this 

dangerous condition. 

Basquin also complains the district court erred in viewing the evidence 

regarding the purpose and necessity of the tethering cable. In this regard, the 

district court found as follows: 

Whether the city and its representative were correct in their 

understanding of the necessity and purpose of the cables (which is 

factually in dispute), the Court finds as fact that the relevant 

individuals employed by or associated with the City of Fairbank 

understood the cables were present to stabilize the footbridge if the 

river floods and to stop vandals from trying to rock or flip the 

footbridge. Other than the plaintiff’s expert, no engineer or expert 

has ever told the relevant individuals pertaining to the City of 

Fairbank that the tethering cables to the footbridge serve no 

purpose. The City of Fairbank had never been notified by any state 

or federal official that the footbridge and its tethering cables were 

deficient in any way, nor had the City of Fairbank ever been 

advised the footbridge and its related tethering cables presented a 

hazard to snowmobilers or other recreational users utilizing the 

park or waterway.
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The evidence supports this finding. Even if we presume the tethering cable was 

unnecessary, the evidence shows the City believed the cable’s purpose was to 

stabilize the bridge. There is no evidence to show the City knew the cable was 

unnecessary or that it presented a hazard.

Basquin also contends the court erred in its application of law in granting 

summary judgment. Iowa Code section 321G.22 states in pertinent part:

The state, its political subdivisions, . . . and their agents and 

employees owe no duty of care to keep the public lands . . . under 

the control of the state or a political subdivision safe for entry or use 

by persons operating a snowmobile, or to give any warning of a 

dangerous condition, use, structure, or activity on the premises to 

persons entering for such purposes, except in the case of willful or 

malicious failure to guard or warn against a dangerous condition, 

use, structure, or activity. The state, its political subdivisions, . . .

and their agents and employees are not liable for actions taken to 

allow or facilitate the use of public lands . . . except in the case of a 

willful or malicious failure to guard or warn against a dangerous 

condition, use, structure, or activity.

Therefore, the City was under no duty to warn Basquin, a snowmobile operator, 

of the presence of the tethering cable—no matter how dangerous—unless the 

failure to do so rose to the level of a “willful or malicious failure.” See Iowa Code 

§ 321G.22. The question before us is whether Basquin raised a fact question 

regarding whether the City acted willfully or maliciously in failing to guard against 

or warn him of the location of the tethering cable. 

Because there is no Iowa authority interpreting the “willful or malicious” 

language of section 321G.22, we, like the district court, turn to case law 

interpreting a similar statutory provision. In Bird v. Economy Brick Homes, Inc., 

498 N.W.2d 408, 408-10 (Iowa 1993), our supreme court applied the provisions 

of section 111C.6 (1991), which provide an exception to a landowner’s limited 
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liability when the landowner willfully fails to guard against a dangerous condition, 

to a specific set of facts. Bird was operating an off-road motorcycle on land 

owned by Economy Brick Homes when he was injured when he struck an 

unmarked cable Economy Brick Homes had placed across an access road to 

prevent vehicles from entering. Bird, 498 N.W.2d at 408. Although chapter 111C 

gave landowners limited liability for injuries that result from unauthorized 

recreational use of their property, Bird argued Economy Brick Homes’s action 

amounted to a willful or malicious failure to guard against a dangerous condition, 

an exception to a landowner’s limited liability as set forth in section 111C.6. Id. at 

409. The court concluded “the mere placement of the cable across the access 

road, without more, did not create an issue of material fact as to whether 

Economy acted willfully or maliciously.” Id. at 410.

The Bird court relied in part on Hegg v. United States, 817 F.2d 1328 (8th 

Cir. 1987), in reaching its conclusion. See id. at 409. In Hegg, the Eighth Circuit 

interpreted the meaning of willfully or maliciously in the same code section and 

found it was not reasonable to infer a defendant acted willfully or maliciously in its 

allegedly negligent construction of a swing set. 817 F.2d at 1332. The court was 

critical of the plaintiff’s failure “to produce any evidence that the defendant was 

aware of any dangerous condition in the swing set or of any previous injuries to 

users.” Id. The Bird court interpreted this to mean “the Eighth Circuit required a 

finding the defendant had knowledge of the dangerous condition before finding 

the defendant acted willfully or maliciously.” 498 N.W.2d at 409.
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Most recently, in Sallee v. Stewart, 827 N.W.2d 128, 154 (Iowa 2013), our 

supreme court cited several authorities in interpreting the meaning of “willful” as 

set forth in the section 461C.6(1) (2009) (formerly section 111C.6). 

One leading authority states that willful conduct may be found

under a recreational use statute only where “a known or obvious 

risk so great as to make it highly probable that harm will result.” 3 

Louis A. Lehr, Jr., Premises Liability 3d, § 54.41 (2012). In Mandel 

v. United States, the Eighth Circuit indicated that willfulness 

requires knowledge or an appreciation that “danger is likely to 

result.” 719 F.2d 963, 967–68 (8th Cir. 1983). In construing the 

related phrase “willful and wanton,” we have stated that the actor 

must show “‘disregard of a known or obvious risk that was so great 

as to make it highly probable that harm would follow.’” Brokaw v. 

Winfield–Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 396 (Iowa 

2010) (quoting McClure v. Walgreen Co., 613 N.W.2d 225, 230 

(Iowa 2000)).

Sallee, 827 N.W.2d at 154. The court determined the evidence in the record was 

insufficient to support a finding the plaintiff would engage in the type of behavior 

that led to her injury, or that as a result of said behavior, an injury was likely to 

occur. Id. Accordingly, the court concluded the plaintiff failed to present 

sufficient evidence to allow a reasonable fact finder to find the defendants acted 

willfully. Id.

The district court here properly concluded there is insufficient evidence to 

show the City acted willfully or maliciously in failing to warn against a dangerous 

condition. The record does not disclose anyone had been injured by the 

tethering cable before Basquin, or that City employees otherwise knew the cable 

presented a hazard. Although they may have been mistaken in their belief, the 

uncontroverted record shows city employees believed the tethering cables were 

necessary to stabilize the footbridge in the event of a flood or vandalism. 

Viewing the evidence in the light most favorable to Basquin and applying the
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foregoing law, there is no dispute as to whether the City acted willfully or 

maliciously. The City is entitled to judgment as a matter of law. Accordingly, we 

affirm the district court’s grant of summary judgment in favor of the City.

AFFIRMED.