IN THE COURT OF APPEALS OF IOWA

No. 14-1326

Filed March 23, 2016

THE ESTATE OF MERCEDES GOTTSCHALK BY CO-EXECUTORS 

REBECCA RASSLER AND RICHARD GOTTSCHALK,

Plaintiff-Appellant,

vs.

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

Defendant, and

STATE OF IOWA,

Defendant-Appellee.

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

Third-Party Plaintiff-Appellant,

vs.

STATE OF IOWA,

Third-Party Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Calhoun County, Thomas J. Bice, 

Judge.

An estate and a nursing home appeal the district court’s decision granting 

summary judgment to the State of Iowa. AFFIRMED.

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

Estate.

David H. Luginbill and Conner L. Wasson of Ahlers & Cooney, P.C., Des 

Moines for appellant Pomeroy.

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

Attorney General, Special Litigation Division, for appellee.

Heard by Danilson, C.J., and Vogel and Potterfield, JJ.
2

VOGEL, Judge.

On interlocutory review, the Estate of Mercedes Gottschalk (the Estate)

and Pomeroy Development, Inc. d/b/a Pomeroy Care Center (Pomeroy) appeal 

the district court’s decision granting summary judgment to the State of Iowa. The 

Estate and Pomeroy claim the district court erred in concluding the State had no 

duty of care as a matter of law, and the Estate also claims the court erred in 

determining the State had sovereign immunity. Pomeroy claims there were 

genuine issues of material fact that prevented summary judgement and it was 

improper for the district court to grant summary judgment when there was a 

pending motion to compel discovery relevant to the issues before the court. 

Because we agree the State had no duty of care as a matter of law, we affirm the 

district court’s decision.1

I. Background Facts and Proceedings.

William Cubbage was a convicted sex offender, who was committed to the 

Civil Commitment Unit for Sexual Offenders (the CCUSO) on May 21, 2002. 

Cubbage had previously been convicted of “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). He had been diagnosed with pedophilia and a personality disorder not 

otherwise specified with antisocial and narcissistic features. In 2006 while he 

was committed at the CCUSO, he was also diagnosed with dementia of the 

Alzheimer’s type, and his mental and physical functioning declined. It was 

 

1 The claims asserted by the Estate against Pomeroy were not part of the summary 

judgment proceeding and remain pending in district court. 
3

mutually agreed between the director of the department of human services, the 

attorney general’s office, and the public defender’s office that Cubbage was 

unable to make further gains from his civil commitment at the CCUSO but also

agreed Cubbage was seriously mentally impaired and needed full-time custody 

and care. On November 16, 2010, the district court entered an order placing 

Cubbage under an Iowa Code chapter 229 (2009) civil commitment and ordered 

Cubbage be placed at the Pomeroy Care Center until it was determined he no 

longer needed care. In entering this order, the district court determined 

Cubbage’s decision-making process was significantly impaired due to this 

underlying Alzheimer’s illness and found he was a danger to himself and others 

due to his dementia and executive dysfunction. With the civil commitment under 

chapter 229 in place, Cubbage’s attorney filed a motion to discharge him from 

the CCUSO on November 24, 2010. The district court granted the discharge the 

same day. Cubbage was transferred to Pomeroy on December 8, 2010. 

Prior to his arrival at Pomeroy, the treating team at the CCUSO met with 

the administrative staff at Pomeroy to discuss Cubbage’s background including 

his sexual offenses and his physical ailments. Cubbage’s behavior was 

discussed, and the CCUSO staff advised the Pomeroy employees that Cubbage

was not likely to be a danger to others in the facility due to his diagnosis of preadolescent pedophilia. The main concern was to monitor Cubbage whenever 

children from the local school or day care were present in the facility. 

On August 21, 2011, another resident at Pomeroy, Mercedes Gottschalk, 

was sexually assaulted by Cubbage. The assault was witnessed by a staff 
4

member’s child, who was walking through the hall and saw Cubbage in 

Gottschalk’s room. 

Gottschalk filed suit against Pomeroy, and later the State of Iowa, for 

negligence. Gottschalk specifically claimed the State was negligent in failing to 

prepare a safety plan for Cubbage after he was placed in the facility, in failing to 

inspect and determine that appropriate safety precautions were followed, and in 

decreasing nursing home oversight. After Gottschalk died, the Estate was 

substituted as plaintiff in the case. Thereafter, Pomeroy asserted a cross-claim 

against the State for contribution in the event it was found liable to the Estate. 

The cross-claim asserted the State was negligent in failing to supervise and 

monitor Cubbage while at Pomeroy, and in misrepresenting Cubbage was no 

longer a risk or threat to society or the elderly prior to his admission at Pomeroy. 

The State filed a motion for summary judgment against the claims 

asserted by the Estate and Pomeroy on May 28, 2014, claiming it had no duty to 

prepare a safety plan or inspect and follow up after Cubbage was discharged 

from the CCUSO. It likewise asserted in response to Pomeroy’s cross-claim that 

it had no duty to supervise or monitor Cubbage after he was discharged. Finally, 

the State asserted it was immune from claims for misrepresentation under Iowa 

Code section 669.14(4) (2013). The Estate filed a motion to compel discovery of 

documents the State had refused to produce. The State refused production by

claiming the requested documents were protected and confidential under various 

provisions of the Iowa Code, and by asserting the attorney-client privilege and 

attorney-work-product doctrine. The Estate and Pomeroy also filed resistances 

to the State’s motion for summary judgment. 
5

The district court granted summary judgment to the State, agreeing the 

State owed no duty to provide a safety plan for Cubbage because he had been 

unconditionally discharged from the CCUSO in November of 2010. The court 

likewise found the State owed no common law duty to Gottschalk or Pomeroy to 

supervise or monitor Cubbage after he was discharged. Finally, the court held 

the doctrine of sovereign immunity prevented any claim of misrepresentation 

against the State under Iowa Code section 669.14(4). Because the court 

dismissed the claims against the State in their entirety, the court concluded the 

Estate’s pending motion to compel discovery was moot. 

From this ruling, both the Estate and Pomeroy filed petitions for 

interlocutory appeal, which were granted by the supreme court, which then 

transferred the case to this court. 

II. Scope and Standard of Review.

Our review of the district court’s summary judgment decision is for the 

correction of errors at law. Thompson v. Kaczinski, 774 N.W.2d 829, 832 (Iowa 

2009). Summary judgment is proper “only if there is ‘no genuine issue as to any 

material fact’ and ‘the moving party is entitled to a judgment as a matter of law.’” 

Id. (quoting Iowa R. Civ. P. 1.981(3)). The district court must view the evidence 

in the light most favorable to the nonmoving party, and the party seeking 

summary judgment has the burden of proof. Id. Normally, questions of 

negligence are for the jury, but in exceptional cases, the issues may be decided 

as a matter of law. Id. 
6

III. Duty of Care.

The Estate claims the State had both a duty to warn the residents and a 

duty to ensure safety protocols were in place to prevent harm to the residents of 

the Pomeroy Care Center. Pomeroy likewise argues the State had a duty to 

Pomeroy because of the special relationship between Cubbage and the State by 

virtue of Cubbage’s commitment to, and subsequent discharge from, the 

CCUSO. The Estate raises a new issue on appeal, namely that the State had a 

duty of care in discharging Cubbage from the CCUSO because the residents of 

the Pomeroy Care Center were within a foreseeable risk of harm and the State 

was aware Cubbage was a danger to himself or others, preventing the State from 

generally releasing Cubbage into the community at large. 

A. Error Preservation.

The State claims the Estate failed to preserve error on its claims that the 

State negligently placed Cubbage in the nursing home or negligently failed to 

warn the residents of his presence. Likewise, the State claims Pomeroy failed to 

preserve error on its claim the State negligently discharged Cubbage from the 

CCUSO. While these claims were raised in both the Estate’s and Pomeroy’s 

resistances to the State’s motion for summary judgment, the district court did not 

address these claims in its ruling. Neither the Estate nor Pomeroy filed a motion 

under Iowa Rule of Civil Procedure 1.904(2), requesting the court to rule on 

whether the State owed a duty under these claims. 

“It is a fundamental doctrine of appellate review that issues must ordinarily 

be both raised and decided by the district court before we will decide them on 

appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). If the district 
7

court fails to rule on an issue properly raised by a party, that party must file a 

motion requesting a ruling in order to assert the claim on appeal. Id. There is 

nothing in the district court’s ruling that indicates it considered the issues of 

negligent discharge, negligent placement, or failure to warn when granting 

summary judgment to the State. See Lamasters v. State, 821 N.W.2d 856, 864 

(Iowa 2012) (“If the court’s ruling indicates that the court considered the issue 

and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’

the issue has been preserved.” (citation omitted)). We thus agree with the State 

that neither the Estate nor Pomeroy preserved error on these claims.

2

The State does not challenge error preservation with respect to the claims 

the district court addressed in its ruling. The court concluded there was no 

statutory duty to provide a safety plan because Cubbage was unconditionally 

discharged from the CCUSO. The court also ruled there was no common law 

duty to supervise or monitor Cubbage after he was discharged. Therefore, we 

confine our opinion on appeal to these issues, which were properly preserved.

 

2 Even if we were to find these issues preserved, we would still find the State did not owe 

a duty with respect to a negligent discharge or negligent placement claim. It was not the 

State that discharged Cubbage from the CCUSO or that placed Cubbage in the 

Pomeroy facility. Those were decisions made by the district court. Neither Pomeroy nor 

the Estate made a claim against the district court for those decisions, and nor can they in 

light of judicial immunity. See Blanton v. Barrick, 258 N.W.2d 306, 308 (Iowa 1977) 

(“Few doctrines have been more settled than the absolute immunity of judges from 

damages for acts committed within their judicial jurisdiction. This immunity applies even 

when the judge is accused of acting maliciously and corruptly because as a matter of 

policy it is in the public best interest that judges should exercise their function without 

fear of consequences and with independence.”). The extent of the State’s role in 

Cubbage’s discharge and placement was an agreement entered into between the 

department of human services, the attorney general’s office, and Cubbage’s legal 

representation that a recommendation be made to the court for Cubbage’s discharge 

from the CCUSO and his placement in the Pomeroy facility. There is no allegation that 

the State acted improperly in entering into this agreement. 
8

B. Analysis.

Whether a duty is owed under the particular facts of a case is a matter of 

law for the court’s determination. Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 

N.W.2d 772, 775 (Iowa 2013). Our supreme court has recently adopted the 

Restatement (Third) of Torts’s articulation of the duty of care in negligence 

actions: “An actor ordinarily has a duty to exercise reasonable care when the 

actor’s conduct creates a risk of physical harm.” Thompson, 774 N.W.2d at 834 

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

§ 7(a), at 90 (Am. Law Inst. Proposed Final Draft No.1, 2005)). The supreme 

court noted the general duty of reasonable care will apply in most cases and the 

assessment of whether there is a duty no longer depends on the foreseeability of 

harm based on the specific facts of the case. Id. at 834–35. However, in 

exceptional cases the court may decide there is no duty or the duty should be 

modified because “an articulated countervailing principle or policy warrants 

denying or limiting liability in a particular class of cases.” Id. at 835 (quoting

Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 7(b) (Am. 

Law Inst. Proposed Final Draft No.1, 2005)). This countervailing principle or 

policy also does not depend on the foreseeability of harm. Id. An assessment of 

foreseeability is allocated to the factfinder in its determination of whether there 

was a breach of a duty, not a court’s determination of whether such duty exists. 

Id. 

A duty can also exist to a third party when there is a special relationship 

between the actor and another. See Restatement (Third) of Torts: Liab. for 

Physical & Emotional Harm § 41(a) (Am. Law Inst. 2012) (“An actor in a special 
9

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.”). Examples of these special relationships in which a duty can be 

owed to a third party include “(1) a parent with dependent children, (2) a 

custodian with those in its custody, (3) an employer with employees when the 

employment facilitates the employee’s causing harm to third parties, and (4) a 

mental-health professional with patients.” Id. § 41(b).

Prior to Thompson, our supreme court determined when a special 

relationship existed between an actor and another person, such as between a 

psychiatrist and a patient, the special relationship can give rise to a duty to either 

control the behavior of the other person or to protect a third party. See Leonard 

v. State, 491 N.W.2d 508, 510–11 (Iowa 1992). However, the court determined 

the scope of that duty turns on the foreseeability of harm to the third party. Id. at 

511. The court determined there were “strong public policy concerns about the 

potential for limitless liability when an individual’s decision might affect the 

general public.” Id. at 512. “We believe 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. The court held “a psychiatrist owes no duty

of care to an individual member of the general public for decisions regarding the 

treatment and release of mentally ill persons from confinement.” Id. 

While the Leonard court focused on foreseeability, a factor we no longer 

are to consider when determining whether a duty exists under Thompson, 

ultimately, the foreseeability discussion was part of the court’s determination that 
10

there were “strong public policy concerns” with imposing potentially limitless 

liability on the decision to release a mentally ill person. Id. Interpreting Leonard

in light of our supreme court’s adoption of the Restatement (Third) of Torts’s new 

definition of duty, we conclude that the Leonard case was the exceptional case 

involving “an articulated countervailing principle or policy” that warranted

“denying or limiting liability in a particular class of cases.” See Thompson, 774 

N.W.2d at 835 (quoting Restatement (Third) of Torts: Liab. for Physical & 

Emotional Harm § 7(b) (Am. Law Inst. Proposed Final Draft No.1, 2005)). 

The negligence alleged by the Estate and Pomeroy in this case with 

respect to the State was that the State owed a duty to supervise or monitor 

Cubbage after he was discharged from the CCUSO so as to protect the residents 

of Pomeroy.

3

 However, upon the unconditional discharge of Cubbage from the 

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

the State and Cubbage ended.4 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 

 

3 At the district court, the Estate also claimed the State owed a statutory duty to develop 

and implement a safety plan for Cubbage. See Restatement (Third) of Torts: Liab. for 

Physical & Emotional Harm § 28 (Am. Law Inst. 2012) (“When a statute requires an 

actor to act for the protection of another, the court may rely on the statute to decide that 

an affirmative duty exists and to determine the scope of the duty.”). The district court 

rejected this assertion in the summary judgment ruling, noting that the statute requiring 

the implementation of a safety plan only applied to patients who were subject to 

transitional release under section 229A.8A. Because Cubbage was unconditionally 

discharged under section 229A.10, there was no statutory duty for a safety plan. Neither 

party appeals this ruling of the district court, and we thus need not address it further. 

4 As noted above, any claim that the State was negligent in entering into an agreement 

for Cubbage to be discharged from the CCUSO was not ruled on by the district court and 

is thus not preserved for appellate review. 
11

the district court issued the discharge order, the State had no ongoing obligation 

to monitor or supervise Cubbage. 

Pomeroy claims the State’s actions after the allegations of sexual assault 

arose against Cubbage show there is a factual dispute as to whether the State 

had an ongoing duty to supervise or monitor Cubbage. After the sexual assault 

came to light, Pomeroy contacted the physicians who had treated Cubbage at 

the CCUSO and those physicians visited Pomeroy, spoke to staff members, and 

offered training. However, the fact the State volunteered help to Pomeroy after 

the assault occurred does not establish the State owed a duty to the Pomeroy 

residents or to Pomeroy after Cubbage was unconditionally discharged from the 

CCUSO. We affirm the district court’s grant of summary judgment to the State in 

light of the fact that there was no duty of care owed by the State after Cubbage’s 

discharge from the CCUSO. 

IV. Sovereign Immunity.

Next, the Estate claims the district court erred in concluding the State was 

immune from suit for claims based on misrepresentation. We note the Estate 

never asserted a cause of action for misrepresentation against the State. It was 

Pomeroy that sued the State alleging the State misrepresented Cubbage’s 

likelihood to reoffend when the staff of the CCUSO met with Pomeroy’s staff to 

discuss placing Cubbage in the facility. The State never made any 

representations to Gottschalk, her family, or the other residents of Pomeroy. It 

was Pomeroy, not the Estate, that suffered an adverse ruling when the district 

court concluded the State had sovereign immunity for claims of 

misrepresentation under Iowa Code section 669.14(4). However, Pomeroy does 
12

not challenge the district court’s sovereign immunity ruling on appeal. Because 

the Estate did not suffer as a result of this portion of the district court’s ruling and 

because the Estate cannot raise claims on appeal on behalf of Pomeroy, we 

affirm the decision of the district court concluding the State had sovereign 

immunity for the misrepresentation claims asserted by Pomeroy. See Vicorp 

Restaurants v. Bader, 590 N.W.2d 518, 521 (Iowa 1999) (“It is true that a party 

may appeal only from an adverse judgment and not from a finding or conclusion 

of law not prejudicial, no matter how erroneous.”); Ackerman v. Lauver, 242 

N.W.2d 342, 347 (Iowa 1976) (“Without passing on the correctness of the trial 

court’s decision, we hold [a party] cannot have a reversal because the court—

correctly or incorrectly—decided the claim of two other litigants.”). 

V. Factual Disputes.

Pomeroy asserts the district court was wrong to grant summary judgment 

when there were factual disputes regarding issues of material fact. Specifically, 

Pomeroy asserts there were issues of fact regarding whether the State acted 

negligently in discharging Cubbage from the CCUSO, and whether the State 

acted negligently in performing its role in the civil commitment of Cubbage at 

Pomeroy under Iowa Code chapter 229. As stated earlier, the actual discharge 

and placement decisions were made by the district court. Pomeroy did not 

preserve error to the extent it wanted to assert the State was negligent in its role 

in entering into an agreement with Cubbage’s attorney to discharge Cubbage 

from the CCUSO under chapter 229A or any role it might have played in having

Cubbage civilly committed and placed at Pomeroy under chapter 229. The 

district court did not address the negligent discharge or negligent placement
13

claims in the summary judgment decision and no motion under rule 1.904(2) was 

filed. Thus, any claim of error alleging there were disputes regarding issues of 

material fact on these claims when the summary judgment was granted was not 

preserved for our review. 

VI. Motion to Compel.

Finally, Pomeroy claims the district court erred in granting summary 

judgment when there was a pending motion to compel that was relevant to the 

very issues before the court. First of all, we note it was the Estate’s motion to 

compel, not Pomeroy’s. The pending motion to compel sought for the State to 

produce Cubbage’s annual evaluations while he was at the CCUSO; the 90-day 

patient assessments of Cubbage; copies of all correspondence between the 

CCUSO, the Iowa Department of Human Services, and the Iowa Attorney 

General’s office concerning Cubbage’s transfer of care to the Pomeroy Care 

Center; and all documents reviewed by the physician who prepared the 

discharge evaluation of Cubbage. 

Pomeroy claims the discovery is directly relevant to the State’s duty of 

care. The district court dismissed the State as a party based on its conclusion 

the State had no duty to supervise, monitor, or provide a safety plan after 

Cubbage was discharged from the CCUSO. These discovery requests do not

address whether the State had a duty to supervise, monitor, or provide a safety 

plan after Cubbage was discharged from the CCUSO. The pending motion to 

compel discovery pertained to the claims that the State was negligent in entering 

into an agreement that discharged Cubbage from the CCUSO and placing him at 

Pomeroy, as well as negligent in failing to warn the residents of Pomeroy—
14

claims the district court did not address in its ruling on summary judgment. No 

one filed a motion under rule 1.904(2) requesting the court to address the State’s 

duty pursuant to these claims. As we indicated above, these negligence claims 

have not been preserved for our review due to a lack of a rule 1.904(2) motion. 

Likewise, any claimed error based on the court’s failure to consider these claims 

when determining how to rule on the motion to compel was also not preserved. 

We conclude the district court did not abuse its discretion in ruling that the motion 

to compel was moot in light of its decision on the motion for summary judgment. 

See Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (“Our review of a ruling 

by the district court on a motion to compel discovery is for abuse of discretion.”). 

VII. Conclusion.

Because we conclude the State did not owe a duty to supervise, monitor,

or provide a safety plan for Cubbage following the district court’s decision to 

unconditionally discharge Cubbage from the CCUSO, we affirm the district 

court’s decision granting summary judgment to the State. To the extent that 

Pomeroy or the Estate assert claims that the State was in some way negligent in 

its role in the proceedings to discharge Cubbage or place him in the Pomeroy 

facility following his civil commitment, those claims are not preserved for our 

review. We affirm the decision of the district court concluding the State had 

sovereign immunity for the misrepresentation claims because Pomeroy did not 

seek appellate review of this decision. We likewise agree with the district court’s 

decision that the motion to compel is moot because the motion did not seek 

discoverable information related to the claims addressed by the district court and 
15

the parties did not preserve error on the negligent discharge or negligent 

placement claims.

AFFIRMED.