text:
    STATE of Iowa ex rel., Thomas J. MILLER, Attorney General of Iowa, Appellant, v. MIDWEST PORK, L.C., Peter DeCoster, Austin J. DeCoster d/b/a DeCoster Farms of Iowa and Iowa Ag-Construction Company, Inc., Appellees.
    No. 99-0348.
    Supreme Court of Iowa.
    April 25, 2001.

      Thomas J. Miller, Attorney General, Julie F. Pottorff, Deputy Attorney General, and David R. Sheridan, Assistant Attorney General, for appellant.
    Thomas D. Hanson and Clark G. McDermott of Hanson, Bjork & Russell, L.L.P., Des Moines, for appellees Midwest Pork and Peter DeCoster.
    Jan M. Mohrfeld and William Sidney Smith of Smith, Schneider, Stiles, Hudson, Serangeli, Mallaney & Shindler, P.C., Des Moines, for appellees Austin DeCoster, DeCoster Farms, and Iowa Ag-Construction.
   TERNUS, Justice.

This action was brought by the appellant, State of Iowa, to enjoin the defendants/appellees from taking actions in violation of Iowa Code section 455B.202(2)(a) (Supp.1997), which prohibits persons involved in pending environmental litigation concerning confinement feeding operations from constructing or expanding such facilities. The State alleged that one of the defendants, Austin DeCoster d/b/a De-Coster Farms of Iowa was embroiled in three pending judicial enforcement actions brought under chapter 455B, thereby triggering the prohibition of section 455B.202(2)(a). After trial, the district court ruled the defendants had not violated section 455B.202(2)(a), and dismissed the action.

Upon our de novo review, we conclude that the State was entitled to injunctive relief against the defendants, Austin De-Coster d/b/a DeCoster Farms of Iowa and Austin DeCoster’s corporation, Iowa Ag-Construction Company, Inc. We reverse the district court judgment as to these defendants, and remand to the district court for issuance of an injunction. We affirm the district court’s dismissal of this action as to appellees, Midwest Pork, L.C. and Peter DeCoster.

I. Background Facts and Proceedings.

Prior to the time this case was filed, the Iowa Attorney General filed three judicial enforcement actions against Austin De-Coster d/b/a DeCoster Farms of Iowa for violations of chapter 455B at several of the company’s hog confinement centers. After these actions were filed, Peter DeCoster, Austin DeCoster’s son, and Peter’s wife formed Midwest Pork, L.C. Midwest Pork purchased ten pieces of property from Austin DeCoster for the purpose of developing hog confinement operations. It was disputed at trial whether the money to purchase these properties came from Peter DeCoster’s own assets or from funds given to him by his father.

Midwest Pork also entered into construction contracts with Iowa Ag-Construction to build confinement facilities on these properties. Iowa Ag-Construction is owned solely by Austin DeCoster. Midwest Pork borrowed the money to pay for construction from Austin DeCoster and his wife, Patricia. By the time of trial, hog confinement facilities had been constructed on six sites.

The State brought this action asserting three claims for injunctive relief: (1) Midwest Pork is a sham corporation established for the purpose of allowing the construction of animal feeding facilities by Austin DeCoster in violation of Iowa Code section 455B.202(2)(a); (2) Peter DeCoster and Midwest Pork, as' agents for Austin DeCoster, are constructing confinement facilities in violation of section 455B.202(2)(a); and (3) Austin DeCoster, acting through Iowa Ag-Construction, is constructing hog confinement facilities in violation of section 455B.202(2)(a). See generally Iowa Code § 455B.112 (giving the attorney general authority to bring an action for injunction to enforce any provision of chapter 455B). After the district court denied the State’s request for preliminary injunctive relief, the case proceeded to trial. The trial court ruled that the State had not proved that Midwest Pork was a sham corporation or that an agency relationship existed between Peter De-Coster and Midwest Pork on one hand and Austin DeCoster on the other. The court also denied injunctive relief based on the activities of Iowa Ag-Construction, holding that section 455B.202(2)(a) did not prevent Austin DeCoster from constructing hog confinement facilities for others.

The State appealed. On appeal, the State argues only that the prohibition against constructing or expanding animal feeding structures contained in section 455B.202(2)(a) precludes Austin DeCoster’s activities in financing and contracting to build such structures. Because the State does not contend on appeal that Midwest Pork is a sham corporation or that Peter DeCoster and Midwest Pork are agents for Austin DeCoster, we will not consider those theories as a basis for in-junctive relief.

II.' Scope of Review.

A request for injunctive relief is an equity action, and, therefore, our review is de novo. See Perkins v. Madison County Livestock & Fair Ass’n, 613 N.W.2d 264, 267 (Iowa 2000); Iowa R.App. P. 4. With the State’s abandonment of the sham corporation and agency theories, however, the determinative issue in this case no longer rests on disputed factual issues. Rather the resolution of this case turns on the meaning of section 455B.202(2)(a), and whether this statute encompasses the undisputed activities of Austin DeCoster and Iowa Ag-Construction. We review the district court’s interpretation of a statute for correction of errors of law. See State v. Vargason, 607 N.W.2d 691, 695 (Iowa 2000).

III. Applicable Law.

At the time the State filed its petition, section 455B.202(2)(a) provided:

A person shall not construct or expand an animal feeding operation structure which is part of a confinement feeding operation, if the person is a party to a pending action for a violation of this chapter concerning a confinement feeding operation in which the person has a controlling interest and the action is commenced in district court by the attorney general.

Iowa Code § 455B.202(2)(a.). Although the legislature did not define the terms “construct” or “expand,” it did provide that for purposes of section 455B.202, “ ‘construction’ means the same as defined by rules adopted by the [Department [of Natural Resources] applicable to the construction of animal feeding operation structures as provided in this part.” Id. § 455B.202(1).

Before trial of this matter, the legislature amended section 455B.202 by deleting the subsection incorporating the agency’s definition of “construction” and by adding definitions of “construct” and “expand”:

For purposes of this subsection, “construct” or “expand” includes financing and contracting to build an animal feeding operation structure regardless of whether the person subsequently leases, owns, or operates the animal feeding operation structure.

1998 Iowa Acts ch. 1209, § 29 (codified at Iowa Code § 455B.202(2)(d) (1999)). The State does not argue that this amendment applies to the present action. It does contend, however, that the amendment is relevant to the court’s interpretation of section 455B.202(2)(a) as it was originally enacted because the amendment clarified the legislature’s intent with respect to the scope of the original statute.

The issue in this case boils down to this: Does the prohibition against constructing and expanding animal feeding structures contained in section 455B.202(2)(a) encompass Austin DeCoster’s activities in loaning Midwest Pork the necessary money to construct such facilities and in building those facilities for Midwest Pork through his construction company, Iowa Ag-Construction? Resolution of this issue turns on the meaning of the term “construct” as used in section 455B.202(2)(a). We turn now to an analysis of this issue.

IV. Meaning of Term “Construct.”

To ascertain the meaning of the word “construct” we initially look to the pertinent rules adopted by the Department of Natural Resources (DNR). As noted earlier, the legislature specifically stated in section 455B .202(1) that the term “construction” should be given the same meaning in section 455B.202 as defined by the DNR’s rules. Because the words “construct” and “construction” are related terms, we will consider the DNR’s definition of “construction” to ensure that any meaning given to “construct” is consistent with that definition.

The only arguable definition of “construction” found in the pertinent rules is the following:

567 — 65.7(455B) Construction. Iowa Code Supplement section 455B. 173(13) prohibits an applicant for a construction permit from beginning construction at the location of a site planned for the construction of an animal feeding operation structure until the person has been granted a permit for the construction of the structure by the department. For purposes of this requirement:
65.7(1) Construction begins when any of the following occurs:
a. Excavation for a proposed animal feeding operation structure, or excavation for footings for a proposed animal feeding operation-structure.
b. Installation of forms for concrete for an animal feeding operation structure.
c. Installation of piping for movement of manure within or between animal feeding operation structures.
65.7(2) Construction does not begin upon occurrence of any of the following:
a. Removal of trees, brush, or other vegetative growth.
b. Construction of driveways or roads.
c. General earth moving for leveling or compacting at the site.
d. Installation of temporary utility services.

Iowa Admin. Code r. 567 — 65.7(l)-(2) (1996) (emphasis added). This definition is not very enlightening because it merely defines when construction begins and does not begin rather than defining the term itself. We note, however, that the focus of the rule is on the actual physical building of the facility. There is nothing in the rule that would indicate the word “construction” does not encompass the listed physical activities, such as excavation or installation of concrete forms, when undertaken by someone who is not the owner of the facility under construction.

In the absence of a legislative definition or a particular legal meaning, the court gives a word its ordinary meaning. See State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999). The dictionary defines the word “construct” as “to form, make, or create by combining parts or elements : BUILD, FABRICATE.” Webster’s Third New International Dictionary 489 (unabr. ed.1993). Applying the common meaning of the word “construct” to section 455B.202(2)(a), we think the statute is clear. It prohibits the specified persons from building confinement facilities. Equally apparent is the conclusion that the term “construct” as it is commonly defined does not include the financing of construction.

The defendants argue that the statute only prohibits the construction or building of confinement facilities for the person’s own use. We find no such limitation in section 455B.202(2)(a), nor is the common meaning of the term “construct” so limited, Under the common usage of this term a contractor hired to build a structure for another is understood to be constructing the building. As this court stated in State v. Guzman-Juarez, 591 N.W.2d 1 (Iowa 1999), “To adopt the defendant’s interpretation of this statute would require us to read something into the law that is not apparent from the words chosen by the legislature. This we will not do.” 591 N.W.2d at 2. Moreover, limiting the scope of section 455B.202(2)(a) would be inconsistent with the principle that the court “give[s] environmental statutes a liberal — not narrow — construction.” State ex rel. Miller v. DeCoster, 596 N.W.2d 898, 902 (Iowa 1999).

The defendants also contend that construing the word “construct” to include building a facility for another person would lead to absurd results because (1) general contractors would then be required to obtain permits for construction under section 455B.200A, and (2) such an interpretation of the law does not advance the object sought to be accomplished by the legislature in enacting the statute. Addressing first the defendants’ argument that the permit requirements would be unreasonably expanded, we think a reading of section 455B.200A shows that the defendants’ fears are misplaced. That statute does not require that every person who “constructs” a structure obtain a permit; it merely requires that a permit be obtained before construction begins. A permit obtained by the owner of the proposed facility would appear to satisfy the statutory requirement; it would not be necessary that the person actually building the facility also obtain a permit.

With respect to the defendants’ second argument — that our interpretation of section 455B.202(2)(a) is not consistent with the legislative purpose underlying the statute, we note initially that the legislature’s purpose is determined by what the legislature said, not by what it might have said. See Perkins, 613 N.W.2d at 269 (“To ascertain legislative intent, [the court] look[s] to what the legislature said. [The court does] not speculate as to the probable legislative intent apart from the words used in the statute.”). As we have already noted, the language chosen by the legislature clearly encompasses the construction of a facility for a person other than the violator. Even if it were necessary to consider the defendants’ argument on its merits, we would reject it. The defendants claim that the restrictions of section 455B.202(2)(a) are to “prohibit someone with a pending environmental violation from expanding his facilities by constructing additional facilities.” Building a facility for someone else, argue the defendants, does not expand the contractor’s environmental responsibility because “[t]he responsibility for the storage and disposal of the manure rests with ... the owner of the facility.” This argument overlooks the possibility that environmental violations are not always due to operator error. It is certainly possible that defects or deficiencies in the facility itself, caused by the manner in which it was constructed, could lead to a violation of chapter 455B. Therefore, there is nothing unreasonable or inconsistent about prohibiting a known violator from constructing facilities for another person or entity.

We conclude that the common meaning of the word “construct” includes the building of a confinement structure for oneself or for another. This interpretation of the statute does not lead to an absurd result. The district court erred by limiting the reach of the statute to only those persons who construct structures for themselves.

Although the State insists that the subsequent amendment to the statute is relevant and should be considered in our interpretation of the original statute, we decline to do so. “If a statute is ambiguous, the court, in determining the intention of the legislature, may consider ... [t]he legislative history.” Iowa Code § 4.6 (emphasis added); accord Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286, 290 n. 3 (Iowa 2000) (refusing to consider legislative history of a statute because the terms of the statute were clear and unambiguous); see also William C. Mitchell, Ltd. v. Brown, 576 N.W.2d 342, 347 (Iowa 1998) (stating that court does not resort to rules of statutory construction unless a statute is ambiguous).

“A statutory provision is ambiguous if reasonable persons can disagree as to its application.” Iowa West Racing Ass’n v. Iowa Racing & Gaming Comm’n, 546 N.W.2d 898, 900 (Iowa 1996). An ambiguity may arise “ ‘from the meaning of particular words’ ” or “ ‘from the general scope and meaning of a statute when all its provisions are examined.’ ” William C. Mitchell, 576 N.W.2d at 347 (quoting Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728 (Iowa 1995)). We have already, determined that the meaning of the word at issue — “construct”—is clear. The State has not directed the court to any other provision of chapter 455B that would create an ambiguity in section 455B.202(2)(a). We hold, therefore, that the term “construct” is not ambiguous as used in section 455B.202(2)(a). Accordingly, we will not consider the subsequent amendment to section 455B.202 and whether it clarified or changed the meaning of the statute as it existed at the time this action was filed.

V. Application of Section i55B.202(2)(a).

A. Austin DeCoster d/b/a De-Coster Farms of Iowa and Iowa Ag-Construction Company, Inc. We note initially that there is no dispute that Austin De-Coster is subject to the prohibitions of section 455B.202(2)(a). He was “a party to a pending action for a violation of ... chapter [455B] concerning a confinement feeding operation in which [he] ha[d] a controlling interest.” Iowa Code § 455B.202(2)(a). In addition, the defendants do not contest that the company wholly owned by Austin DeCoster, Iowa Ag-Construction, is subject to the same prohibitions. The only contested issue, then, with respect to these defendants is whether they “construct[ed] ... an animal feeding operation structure” within the meaning of section 455B.202(2)(a).

The State claims that two actions taken by these defendants violated section 455B.202(2)(a): (1) Austin DeCoster’s financing of the construction of the confinement facilities; and (2) the building of the facilities by Iowa Ag-Construction. Based on the meaning of the word “construct,” as discussed above, we hold that Austin De-Coster did not violate section 455B.202(2)(a) by providing funds to Midwest Pork to construct the confinement facilities. The common meaning of “construct” does not include financing. We reach a different result as to Iowa Ag-Construction. Iowa Ag-Construction and its owner, Austin DeCoster, violated section 455B.202(2)(a) by building the facilities. As we determined earlier, the fact that others owned the facilities does not change the fact that the buildings were constructed by persons prohibited from doing so.

B. Midwest Pork and Peter De-Coster. There is no evidence in the record that Midwest Pork or Peter DeCoster were parties to a pending enforcement action under chapter 455B. Moreover, the State has abandoned on appeal its arguments that these entities were agents of Austin DeCoster and that Midwest Pork is a sham corporation. Therefore, there is no factual or legal basis to support a conclusion that these defendants are subject to the prohibitions of section 455B.202(2)(a).

VI. Summary and Disposition.

Section 455B.202(2)(a) prohibits a person subject to a chapter 455B enforcement action from building a livestock confinement structure, regardless of whether the structure is owned by that person or by another person or entity. This statute, as it existed in 1997, did not preclude a person subject to its prohibitions from financing the construction of such structures.

The construction of confinement facilities by Iowa Ag-Construction violates section 455B.202(2)(a). Therefore, the district court erred in failing to issue an injunction against Iowa Ag-Construction and Austin DeCoster d/b/a DeCoster Farms of Iowa. We reverse that part of the court’s ruling and remand for entry of an order granting the injunctive relief requested by the State. We note that the State has made it clear throughout these proceedings that it is not asking that Iowa Ag-Construction be prohibited from any construction of confinement facilities, but only from constructing such facilities for Midwest Pork, Peter DeCoster, and related individuals or entities. Although the statute as we have interpreted it would permit broader injunctive relief, the district court, in fashioning its order, should restrict the injunction to that requested by the State. See Douglass v. Iowa City, 218 N.W.2d 908, 914 (Iowa 1974) (holding injunction should be limited to the specific relief requested by the plaintiff). In this regard, we also observe that the State’s request does not encompass any relief with respect to the facilities that have already been constructed.

The activities of Peter DeCoster and Midwest Pork did not violate section 455B.202(2)(a) because these defendants were not subject to the prohibitions of that statute. We affirm that part of the district court’s order dismissing the State’s petition against Peter DeCoster and Midwest Pork.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except LARSON, J. • who takes no part.

      . This administrative rule has since been amended and is now found at Iowa Administrative Code r. 567 — 65.8(l)-(2) (1999).


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    In the Matter of M.T., Alleged to be Seriously Mentally Impaired, M.T., Appellant.
    No. 00-0886.
    Supreme Court of Iowa.
    April 25, 2001.

      Mary L. McGee, Des Moines, for appellant.
    Aaron Siebrecht, Assistant County Attorney, for appellee State.
   TERNUS, Justice.

The appellant, M.T., was involuntarily committed after a court hearing at which he was not present. On appeal, he claims that his statutory and constitutional right to be present at the hearing was violated. At oral argument, M.T.’s attorney stated that respondent does not request a remand for another hearing because M.T. has since been released from inpatient treatment and has returned to his home.

Despite the fact that this court’s decision will have no effect in the underlying matter, we conclude that this case falls within an exception to the mootness doctrine. On the merits of M.T.’s appeal, we hold that his statutory right to procedural due process was violated.

I. Background Facts and Proceedings.

M.T. has a long history of paranoid schizophrenia. At a 1994 commitment proceeding he was ordered by the court to have outpatient treatment. This treatment consisted of regular injections of Prolixin Deeanoate. When M.T. stopped taking his medication in February of 2000, his condition deteriorated.

On May 8, 2000, an application for involuntary commitment was filed in the district court alleging that M.T. was mentally impaired and believed to be a danger to himself and to others. See Iowa Code § 229.6 (1999) (setting forth procedure for commencement of involuntary commitment proceeding). At the time, he was being held at the Veteran’s Administration Medical Center (VAMC) in Knoxville, Iowa. The application revealed that since his admission to VAMC, M.T. had shown increased agitation and anger, and frequently required seclusion and restraints.

M.T. did not attend the commitment hearing, which was held on May 15, 2000. The State called a nurse practitioner, Mary Walker, as a witness who testified that M.T. had been placed in restraints the morning of the hearing because he had become agitated, and was threatening and screaming at staff members. As a result of M.T.’s condition, the VAMC staff was concerned about safely transporting him to the hearing.

Walker testified she called M.T.’s attorney on the morning of the hearing and informed her of the situation. (M.T. had court-appointed counsel in the district court who is not the same attorney representing M.T. on appeal) M.T.’s counsel was not able to talk with him, however, because the staff believed it would be dangerous to let M.T. out of the restraints so as to have access to the phone. There was some discussion of obtaining a cell phone to allow the attorney to talk with M.T., but this was not done. Apparently, the staff believed that such a conversation would only agitate M.T. even more. Walker confirmed, however, that if M.T. had been at the hearing, he would have said that he did not want to be committed.

The State called no other witnesses, but offered a physician’s report stating that M.T. was suffering from a mental illness, was incapable of making responsible decisions concerning his treatment, and was a danger to himself or others if not involuntarily committed on an inpatient basis. The report also corroborated Walker’s testimony concerning M.T.’s state since being admitted to VAMC.

M.T.’s counsel called no witnesses and submitted no evidence in rebuttal to the State’s case. Counsel confirmed Walker’s testimony with respect to their telephone conversation that morning.

The court did not postpone the hearing, nor did the court make any further inquiry concerning M.T.’s ability to be present at and participate in the hearing. On the basis of the State’s evidence, the court found that M.T. was seriously mentally impaired and ordered his commitment at the VAMC for purposes of evaluation and treatment. On June 22, 2000, M.T.’s commitment was changed from inpatient to outpatient status.

II. Is this Appeal Moot?

An appeal “ ‘is moot if it no longer presents a justiciable controversy because [the contested issue] has become academic or nonexistent.’ ” In re Interest of D.C.V., 569 N.W.2d 489, 494 (Iowa 1997) (quoting In re Meek, 236 N.W.2d 284, 288 (Iowa 1975)). “The test is whether the court’s opinion would be of force or effect in the underlying controversy.” Id.; see also Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540 (Iowa 1997). As a general rule, we will dismiss an appeal “ ‘when judgment, if rendered, will have no practical legal effect upon the existing controversy.’ ” Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 679 (Iowa 1998) (quoting Roth v. Reagen, 422 N.W.2d 464, 466 (Iowa 1988)).

There is an exception to this general rule, however, “where matters of public importance are presented and the problem is likely to recur.” Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1988). Under these circumstances, our court has discretion to hear the appeal. See Christensen, 578 N.W.2d at 679. An important factor to consider is “whether the challenged action ⅛ such that often the matter will be moot before it can reach an appellate court.’ ” Id. (quoting Danner v. Hass, 257 Iowa 654, 660, 134 N.W.2d 534, 539 (1965), overruled on other grounds by Needles v. Kelley, 261 Iowa 815, 822, 156 N.W.2d 276, 280 (1968)).

We think the present appeal is moot. M.T. is no longer subject to the inpatient treatment order that resulted from the challenged hearing. Moreover, he does not contest his commitment to outpatient treatment. Any ruling in this case will not affect his current commitment order under these circumstances. Although we could remand the matter for another hearing, such an order would have no effect because the State no longer seeks to have M.T. committed for inpatient treatment. In any event, M.T. no longer wants a new hearing.

Despite the mootness of the present appeal, we will exercise our discretion to reach the merits of the issue raised by the appellant. The conduct of an involuntary civil commitment hearing is of public importance. Because such hearings are a daily occurrence, questions about the proper procedures to be followed when there is a question about the committee’s ability to be present are likely to reoccur. Additionally, given the time for processing an appeal, and the probability that the commitment will not continue for that length of time, such appeals will often be moot before the appeal can be decided. See Tyars v. Dinner, 709 F.2d 1274, 1280 (9th Cir.1983) (holding court would review case despite appellant’s discharge from hospital because involuntary civil commitments “ ‘do not last long enough for complete judicial review of the controversies they engender’ ” (quoting Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 126, 94 S.Ct. 1694, 1700, 40 L.Ed.2d 1, 10 (1974))); In re Barbara H., 183 Ill.2d 482, 490, 234 Ill. Dec. 215, 702 N.E.2d 555, 559 (1998) (same). Therefore, we proceed to the merits of M.T.’s complaint.

III. Were M.T.’s Procedural Due Process Rights Violated?

M.T. contends that the district court violated his right to be present at the involuntary commitment proceeding by not following the proper procedures to determine whether M.T. should be allowed to exercise this right. Iowa Code section 229.12 provides that “[t]he respondent has the right to be present at the hearing.” Nonetheless, under the Supreme Court’s Rules for Involuntary Hospitalization of Mentally Ill, the judge or mental health referee may determine that the respondent’s presence is not in his or her best interests. Rule 20 provides in pertinent part:

The respondent must be present at the hearing unless prior to the hearing the respondent’s attorney stipulates in writing to respondent’s absence, such stipulation to state (1) that the attorney has conversed with the respondent, (2) that in the attorney’s judgment the respondent can make no meaningful contribution to the hearing, and (3) the basis for such conclusions. A stipulation to the respondent’s absence shall be reviewed by the judge or referee before the hearing, and may be rejected if it appears that insufficient grounds are stated or that the respondent’s interests would not be served by the respondent’s absence.

Iowa Sup.Ct.R. for Involuntary Hospitalization of Mentally Ill 20. M.T. does not claim that this rule is constitutionally infirm. Therefore, we limit our discussion to the alleged violation of M.T.’s statutory due process rights.

Upon our review of the record, we conclude that M.T.’s statutory rights were violated in numerous respects. The written stipulation of M.T.’s attorney required by rule 20 was not filed. Indeed, based on the evidence presented at the hearing, such a stipulation could not have been filed because M.T.’s attorney had not conversed with the respondent, by phone or in person, a necessary predicate to filing the stipulation. Even assuming the oral record made at the hearing substantially complied with the stipulation requirement, which it did not, the judge was still required by rule 20 to make an independent determination (1) of the adequacy of the grounds for the attorney’s conclusion that the respondent could not meaningfully contribute to the hearing; and (2) whether the respondent’s interests would, in fact, be advanced by his absence. See id. Such a determination must be made before proceeding with the hearing. In the present case, the hearing was conducted without any initial inquiry into the respondent’s absence, and there is nothing in the record to indicate that the judgé ever made the determination required by rule 20. Clearly, M.T. was not accorded the statutory due process to which he was entitled.

We do not question the good intentions of M.T.’s trial counsel or of the judge who accepted the conclusion of those involved that it would not be in M.T.’s best interests to attend the hearing. Nevertheless, a respondent’s liberty interests are at stake at an involuntary commitment hearing. See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, 330-31 (1979) (holding that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”); In re R.P., 606 N.W.2d 15, 17 (Iowa 2000) (same). Therefore, it is imperative that the statutory requirements and procedures be followed. Cf. Suzuki v. Quisenberry, 411 F.Supp. 1113, 1129-30 (D.Haw.1976) (detailing various circumstances under which committee may be excluded from hearing and requiring court inquiry and approval, as well as exploration of alternatives to total exclusion); Doremus v. Farrell, 407 F.Supp. 509, 515 (D.Neb.1975) (“The subject has a constitutional right to be present at the hearing unless he voluntarily, intelligently and knowingly waives it or his counsel waives it for him after a showing that he is incompetent, or the subject’s conduct is so disruptive as to require his exclusion.”); In re Watson, 91 Cal.App.3d 455, 456, 154 Cal.Rptr. 151, 155 (1979) (holding denial of committee’s right to be present at hearing “absent an on-the-record showing that she waived that right or was incapable of doing so by reason of either physical or mental incapacity, deprived her of her fundamental constitutional right to due process of law”); Greene v. State, 537 S.W.2d 100, 102 (Tex.Civ.App.1976) (“Due process requires the presence of the person proposed to be involuntarily committed at all judicial proceedings conducted for that purpose, unless the right has been knowingly and intelligently waived by such person or by adversary counsel acting in her behalf and for good cause shown.” (Citation omitted.)).

IV. Disposition.

We hold that the respondent’s rights under rule 20 were violated. Although we reverse, we do not remand for a proper determination as to whether M.T. should be present at the commitment hearing since M.T. is no longer subject to an inpatient order and does not challenge his commitment for outpatient treatment.

REVERSED.


author: CARTER, Justice.

text:
    Linda PETERSON, Gary Higgins, Jane Higgins, Ryan Higgins, Lila Brelsford, Phyllis Gannon, Marilyn Rowles, William Radebaugh, Sheila Sjeklocha, Bill Heater, Rick Brown, Sue Brown, Beverly Morris, and Other John and Jane Doe Landowners of Drainage District No. 5, Appellants, v. BOARD OF TRUSTEES OF DRAINAGE DISTRICT NO. 5, Appellee.
    No. 99-0532.
    Supreme Court of Iowa.
    April 25, 2001.

      Thomas D. Hanson and Clark G. McDermott of Hanson, Bjork & Russell, L.L.P., Des Moines, for appellants.
    James W. Hudson of Hudson Law Firm, Pocahontas, for appellee.
   CARTER, Justice.

Landowners in Greene County Drainage District No. 5 appeal from a judgment in a certiorari proceeding upholding the action of the drainage district trustees in awarding supplemental damages to a property owner more than seven years after the original damage assessment for that owner was made. They contend that the board of trustees did not have authority to increase the original damage award following the conclusion of the statutory proceeding for assessing damages under Iowa Code section 468.26 (1991). We agree with this contention and reverse the judgment of the district court.

In 1991 the Greene County Board of Supervisors approved a project to build a three-mile drainage ditch improvement, which required the acquisition of right-of-way from a number of different landowners. Subsequently, the administration of the drainage district was taken over by a board of trustees as authorized in Iowa Code section 468.500. The board of trustees, acting pursuant to section 468.24, appointed an appraisal committee for purposes of determining damages to the surrounding landowners as a consequence of the drainage improvement.

Notice was given to all landowners affected that a hearing would be held on the appraisal committee’s report on December 19, 1991. A hearing was held on that date, and the appraisal committee made a presentation recommending damages to be paid to landowners. At the conclusion of the hearing, the board approved the awards of damages recommended by the appraisal committee. One of the landowners whose property was affected was Charles Gunn. He was awarded damages of $8090.50 by the board for land taken for the improvement.

Some of Gunn’s property that was benefited by the new drainage ditch was wetland property subject to regulation under federal legislation. As a result of the improvement, this property no longer qualified as wetland property under the program in which Gunn was participating. As a consequence of that occurrence, the United States Department of Agriculture imposed a sanction on Gunn, which denied him the use of approximately twenty-eight other acres of cropland. When the federal agency ruling was affirmed by both the federal district court and the court of appeals, Gunn negotiated a settlement with the United States Department of Agriculture. The result of this negotiation was an agreement by Gunn to purchase other land to be converted to wetland as a condition for avoiding the requirement for removal of twenty-eight acres of cropland from production. The property Gunn purchased in order to effectuate this compromise was acquired at a cost of $26,600.

Gunn sought reimbursement from the board of trustees for the cost of the land that he converted to wetlands in order to avoid the federal agency sanction. The board of trustees held a public hearing on Gunn’s damage claim on June 19, 1998. Sixteen property owners in the drainage district appeared and objected to the proposal to award Gunn supplemental damages as a result of the federal wetlands dispute. Other landowners voted against awarding supplemental damages to Gunn when a vote of landowners was taken at the hearing. That vote resulted in nine landowners voting in favor of granting Gunn’s claim and nineteen voting against. At the conclusion of the hearing, the board of trustees voted to allow Gunn’s claim in the sum of $26,600.

Several landowners in the district instituted this certiorari proceeding, seeking to have the board’s action declared illegal. The district court concluded that the board was authorized to compensate Gunn fully for the damages occasioned by the drainage ditch and upheld the supplemental award of damages. Other matters of importance will be discussed in connection with our consideration of the legal issues presented.

The plaintiff landowners urge that in takings for drainage-district purposes as in other eminent-domain matters damages are established only once, and are presumed to include all damages present and future. The board of trustees responds that this was not a taking by eminent domain but rather an improvement to an existing drainage ditch undertaken pursuant to statutory authority. It urges that the nature of the loss now being compensated was not known at the time that Gunn’s damages were originally established in December 1991.

It is true that the drainage district in seeking land for this improvement did not resort to the power of eminent domain provided in Iowa Code chapter 6B, which it was empowered to do under Iowa Code section 468.126(6). It used an alternative procedure provided in the latter statute, which is to acquire land under the same statutory procedures that are provided for the original establishment of a drainage district. Those procedures require an engineer’s report to be approved by the board, notice to affected property owners, and the appointment of an appraisal committee. See Iowa Code §§ 468.12, .14, .24. Yet, when these procedures are concluded and damages to the affected landowners are paid, the result is the equivalent of an eminent-domain taking because the drainage district becomes vested with a permanent easement of all right-of-way for drainage district ditches, tile lines, settling basins, and other improvements. Iowa Code § 468.27. We conclude that the alternative procedure employed by the board is a special form of eminent domain that the legislature has provided for drainage-district takings.

. Several statutes bear on the issue of whether the December 1991 assessment of damages was a final and binding determination of the drainage district’s obligation to compensate Gunn. These include the following:

The appraisers appointed to assess damages shall view the premises and determine and fix the amount of damages to which each claimant is entitled, and shall place a separate valuation upon the acreage of each owner taken for right of way for open ditches or for settling basins, as shown by plat of engineer, and shall, at least five days before the date fixed by the board to hear and determine the same, file with the county auditor reports in writing, showing the amount of damage sustained by each claimant. Should the report not be filed in time, or should any good cause for delay exist, the board may postpone the time of final action on the subject, and, if necessary, the auditor may appoint other appraisers.

Iowa Code § 468.25 (emphasis added).

At the time fixed for hearing and after the filing of the report of the appraisers, the board shall examine said report, and may hear evidence thereon, both for and against each claim for damages and compensation, and shall determine the amount of damages and compensation due each claimant, and may affirm, increase, or diminish the amount awarded by the appraisers.

Iowa Code § 468.26.

Any person, company, or corporation failing to file any claim for damages or objections to the establishment of the district at or before the time fixed for said hearing, except claims for land required for right of way, or for settling basins, shall be held to have waived all objections and claims for damages.

Iowa Code § 468.19.

We are persuaded that the legislature in employing the words “final action on the subject” in section 468.25 intended to convey finality to the board’s award under section 468.26 subject only to the right of appeal to the district court. The only exception appears to be that under section 468.27 the board may pay additional damages for later crop damage outside the right-of-way of the district as a result of future maintenance, repair, improvement, and inspection of the drainage system.

With respect to the payment of damages in drainage-district takings, we recognized in Taylor v. Drainage District No. 56, 167 Iowa 42, 148 N.W. 1040 (1914), that

[t]he Legislature, in authorizing the condemnation of a right of way for a drainage ditch, has provided a definite and complete method for the adjustment and adjudication of damages occasioned by the taking and the compensation to the owners of the land through which extended....
The wisdom of fixing a day on or before which all claims must be filed is not open to inquiry. It is essential to the orderly consideration and dispatch of business that there be a time after which claims for damages may not be presented or heard. Otherwise, such an enterprise could never be completed, and claims of different kinds might be urged on ad infinitum.

Taylor, 167 Iowa at 51, 148 N.W. at 1043. The principle announced in Taylor is consistent with principles that this court has applied to eminent-domain takings in other situations. See Hammer v. Ida County, 231 N.W.2d 896, 900 (Iowa 1975) (condemnation damages are to be assessed once and for all and once assessed include all injuries that may result for all time); Wheatley v. City of Fairfield, 213 Iowa 1187, 1194, 240 N.W. 628, 632 (1932) (same).

We believe that the foregoing principle serves to defeat the board’s authority to approve the supplemental damage payment to Gunn in 1998. We recognize that the finality requirement that we have imposed may work a hardship in those situations where changes in the water flow produce unanticipated consequential damage to adjoining property owners. However, the need for a reasonably prompt determination of the drainage district’s obligation to all landowners affected is manifest and outweighs the interests of the few landowners who may suffer unanticipated losses. See Taylor, 167 Iowa at 54, 148 N.W. at 1045 (inability to assert damage claim within time provided by law is no ground for equitable relief).

We have considered all issues presented and conclude that the judgment of the district court should be reversed. The ease is remanded to that court with directions to sustain the writ of certiorari and annul the board’s action in approving compensation to Gunn for monies spent in the settlement of his wetlands dispute with the federal government.

REVERSED AND REMANDED.

      . Iowa Code section 468.14 provides that all claims for damages, except claims for land required for right-of-way, must be filed with the county auditor "at or before” the time set for hearing on the tentative approval of the planned improvement.

      . Such appeal is provided for in Iowa Code section 468.83.


text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Philip D. FURLONG, Respondent.
    No. 00-2010.
    Supreme Court of Iowa.
    April 25, 2001.

      Norman G. Bastemeyer and David Grace, Des Moines, for appellant.
    Bradford Kollars, Sioux City, for appel-lee.
   CARTER, Justice.

This is a review of the findings and recommendations of the Grievance Commission with respect to a disciplinary complaint against respondent, attorney Philip D. Furlong. The commission found respondent was guilty of a series of violations of the Iowa Code of Professional Responsibility for Lawyers and recommended that his license be suspended for at least eighteen months.

The complaint against respondent charged that, while acting as a lawyer for two female clients, he engaged in a prolonged sexual relationship with one and unprofessionally harassed the other in a manner that carried a strong sexual connotation.

At the hearing on the complaint, one of these clients testified that on the day her dissolution-of-marriage decree was obtained, respondent gave her an uninvited kiss while they were at the courthouse during which he inserted his tongue into her mouth. They then went from the courthouse to his office, where he told her she was beautiful, placed his hand inside her underclothing, and digitally penetrated her vagina. This witness testified that the sexual advances on that date were uninvited and unwelcome.

A short time later, this same client became embroiled in a consensual sexual relationship with respondent, which continued for approximately twenty months. During this time, respondent gave her substantial sums of money. She eventually broke off the relationship and filed a complaint against respondent with the Iowa Supreme Court Board of Professional Ethics and Conduct. She also filed a sexual harassment lawsuit against respondent, which he settled for the sum of $25,000. This witness testified that respondent asked her to write a letter to ethics authorities withdrawing her complaint and encouraged her to move out of the state and not cooperate in the investigation of her complaint. She and respondent briefly resumed their intimate relationship while her complaint was pending, but respondent broke it off when his wife learned about the affair.

The second client mentioned in the complaint engaged respondent’s services with respect to a personal-injury claim stemming from an automobile collision. She testified that when she was in his office he perpetually ogled her and would attempt to rub her back and shoulders while calling her a “pretty little thing.” After the personal-injury claim was settled and she was waiting in respondent’s office for the insurance company adjuster to deliver the check, respondent tried to entice her to go for a ride in his car and again placed his hands on her back and shoulders.

In addition to the testimony of the two complaining witnesses, a third woman testified that, while she was being represented by respondent in connection with a personal-injury claim, he gave her an uninvited kiss and inserted his tongue in her mouth. When she threatened to sue him for sexual harassment, he paid her the sum of $5000 for a release.

Evidence was also presented showing that respondent, in connection with the settlement of an action against him by a fourth female client, had inserted language in the release, stating that the client should not cooperate with authorities with respect to any disciplinary claim that might be brought against him growing out of that transaction. As a result of that, action, respondent, on February 13, 1997, received a public reprimand from the board of professional ethics and conduct for attempting to impede the progress of a disciplinary investigation.

Respondent urged before the commission that his prolonged dalliance with the marriage-dissolution client was consensual and was not initiated until after the attorney-client relationship had concluded. He denied that he was guilty of any unprofessional conduct with the other complaining witness, but admitted that he had kissed the client to whom he paid $5000 in settlement and further admitted that it was wrong to have done so. He denied asking either complainant to withdraw that person’s complaint or to not cooperate with disciplinary authorities.

The Grievance Commission found that respondent had engaged in a sexual relationship with a marriage-dissolution client while he was acting as her attorney. It noted that, following the conclusion of the marriage dissolution, he continued to represent this woman in connection with a myriad of other legal problems she was experiencing. There was at no time any clear break in the attorney-client relationship.

The Grievance Commission found that respondent’s sexual relationship with this client that was carried on prior to January 1995 constituted a violation of DR 1-102(A)(6) of the Iowa Code of Professional Responsibility for Lawyers (a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law). This court has previously held that a lawyer violates DR 1 — 102(A)(6) in engaging in a sexual relationship with a client. Comm. on Prof'l Ethics & Conduct v. Hill, 436 N.W.2d 57, 59 (Iowa 1989). Alleged disciplinary violations must be found to exist by a convincing preponderance of the evidence. Comm. on Prof'l Ethics & Conduct v. Freed, 341 N.W.2d 757, 759 (Iowa 1983). We are satisfied that the evidence presented by the board met that burden of proof. The Grievance Commission found that respondent’s sexual relationship with this client after January 1995 was a violation of the prohibition now set forth in DR 5-101(B) (a lawyer shall not engage in sexual relations with a client), which became effective on that date. That finding is also supported by ample evidence under the applicable burden of proof.

As to the second complaining witness, the Grievance Commission found her testimony to be credible and found that respondent’s conduct did constitute sexual harassment thus violating DR 1 — 102(A)(7) (a lawyer shall not engage in sexual harassment). This finding is also supported by the evidence under the applicable burden of proof.

As a final matter, the Grievance Commission found that respondent had attempted to dissuade the first complaining witness from following through on her complaint with disciplinary authorities. We defer to the commission with respect to the credibility issue on which this finding depends and, in light of such deference, conclude that the finding has adequate support in the evidence. As the board urged before the commission, that conduct on respondent’s part is a violation of DR 1-103ÍA).

The vice involved in a lawyer engaging or attempting to engage in a sexual relationship with a client is clearly identified in Ethical Consideration 5-25 of the Iowa Code of Professional Responsibility for Lawyers:

The unequal balance of power in the attorney-client relationship, rooted in the attorney’s special skill and knowledge on the one hand and the client’s potential vulnerability on the other, may enable the lawyer to dominate and take unfair advantage. When a lawyer uses this power to initiate a sexual relationship with a client, actual harm to the client, and the client’s interest, may result. Such overreaching by an attorney is harmful in any legal representation but presents an even greater danger to the client seeking advice in times of personal crisis such as divorce, death of a loved one, or when facing criminal charges.

This court has recognized that “the professional relationship renders it impossible for the vulnerable layperson to be considered ‘consenting.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hill, 540 N.W.2d 43, 44 (Iowa 1995). Professional responsibility involves many gray areas, but sexual relationships between attorney and client is not one of these. Such conduct is clearly improper.

We are satisfied that the recommendation of the commission concerning the discipline to be imposed represents an appropriate sanction for respondent’s violations. Consequently, it is ordered that the license of respondent, Philip. D. Furlong, is suspended indefinitely with no possibility of reinstatement for eighteen months following the filing of this opinion. Upon application for reinstatement, respondent shall have the burden of proving he has not practiced law during the period of suspension and that he has met the requirements for client notification set forth in Court Rule 118.18. Costs of the disciplinary proceeding are assessed against respondent and payment of same shall be a condition for reinstatement.

LICENSE SUSPENDED.

All justices concur except SNELL, J., who takes no part.

      . In Committee on Professional Ethics & Conduct v. McCullough, 468 N.W.2d 458, 462 (Iowa 1991), we concluded that the duty imposed by DR 1 — 103(A) to report disciplinary violalions also embraces a responsibility not to frustrate such reporting by others or to dissuade others from cooperating in a disciplinary investigation.


author: CADY, Justice.

text:
    Janet PHILLIPS, Executor of the Estate of Paul Harvey Phillips, Appellant, v. COVENANT CLINIC, Ronald Roth, Thomas Pattee, and Ronald Flory, Appellees.
    No. 99-0865.
    Supreme Court of Iowa.
    April 25, 2001.

      Roman Vald and David L. Phillips of Phillips, McCollom, Kozlowski & Vald, P.L.C., West Des Moines, for appellant.
    George L. Weilein of Gallagher, Langlas & Gallagher, P.C., Waterloo, for appellees.
   CADY, Justice.

Janet Phillips, as executor of her father’s estate, brought this wrongful death action against the Covenant Clinic and three physicians after her father died of heart failure shortly after being treated at the clinic. The district court granted summary judgment for the clinic and the physicians, concluding that Janet had presented insufficient facts to support the proximate cause element of her claim. Janet appeals, claiming she was entitled to an inference derived from the failure of the clinic to produce medical records to support a genuine issue of material fact with respect to causation. We affirm.

I. Background Facts and Proceedings.

Paul Harvey Phillips went to the Covenant Clinic in Waterloo on January 3,1996, complaining of flu-like symptoms. He was eighty years old. Detoa Cortes, a physician’s assistant, examined Paul and learned he was experiencing chest pains. Paul had recently suffered congestive heart failure. Dr. Ronald Roth, who was supervising Cortes, ordered an EKG and a chest x-ray.

After the EKG was performed, Paul was permitted to walk on his own to the neighboring hospital for the chest x-ray. He collapsed, however, on his way to the hospital in cardiac arrest. Around the same time, Dr. Thomas Pattee reviewed Paul’s EKG strip. When Dr. Pattee learned Paul had collapsed on his way to the hospital, he grabbed Paul’s entire medical file from the clinic, which included the EKG results, and hand-delivered the file to the intensive care unit of the hospital, where Paul was being treated. Doctors at the hospital were unable to save Paul’s life. He died at the hospital.

In June 1996, Janet sought her father’s medical records from the clinic. The clinic subsequently informed Janet that her father’s medical file was missing. No one at the hospital or clinic had seen Paul’s medical file since it had been hand-delivered to the intensive care unit by Dr. Pattee on January 3, 1996. The only document the clinic was able to produce was Cortes’ notes from the January 3 office visit. The clinic asked Janet to check Paul’s personal belongings from the January 3 hospitalization to ensure the clinical records had not been inadvertently included with those belongings. The medical records were not found.

Janet filed this wrongful death action on January 2,1998. She alleged medical malpractice against the Covenant Clinic, Dr. Roth, Dr. Pattee, and Dr. Ronald Flory. Pursuant to Iowa Code section 668.11 (1997), Janet named Dr. R. William Over-ton, III, as her medical expert. Dr. Over-ton concluded the clinic doctors breached their duty of care in treating Paul on January 3, 1996, by permitting him to leave the clinic before reviewing the EKG results. However, because Paul’s medical file was unavailable for review, Dr. Over-ton was unable to conclude the breach caused Paul’s death. The only document available for Dr. Overton to review was the office notes prepared by Cortes regarding the January 3 office visit. This document consisted of both dictated and handwritten notes. Dr. Overton concluded Cortes added the handwritten notes after her dictation had been transcribed, and found this conduct was potentially indicative of an attempt to conceal the medical records.

The defendants moved for summary judgment. They claimed Janet’s failure to establish a causal relationship between the doctors’ purported breach of the standard of care and Paul’s death was fatal to her claim. Janet resisted the motion. She claimed the defendants’ failure to produce relevant records within their control entitled her to an inference that the missing medical records contained evidence unfavorable to the defendants, and that this inference gave rise to a genuine issue of material fact on the causation element.

The district court granted the motion for summary judgment. Janet appeals. She claims the district court erred in holding the spoliation inference could not support a proximate cause finding under the circumstances.

II. Scope of Review.

We review a ruling on a summary judgment motion for errors at law. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000); Swartzendruber v. Schimmel, 613 N.W.2d 646, 649 (Iowa 2000); Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 362 (Iowa 2000); Bennett v. MG # 619, Inc., 586 N.W.2d 512, 516 (Iowa 1998). A district court properly grants summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 237(c); Crippen, 618 N.W.2d at 565; Swartzendruber, 613 N.W.2d at 649; Shivvers v. Hertz Farm Mgmt., Inc., 595 N.W.2d 476, 478 (Iowa 1999); Bennett, 586 N.W.2d at 516. A factual issue is “material” only if “the dispute is over facts that might affect the outcome of the suit.” Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 35 (Iowa 1999) (citation omitted). The burden is on the party moving for summary judgment to prove the facts are undisputed. Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 1999); Bennett, 586 N.W.2d at 516; Sandbulte v. Farm Bureau Mut. Ins. Co., 343 N.W.2d 457, 464 (Iowa 1984).

In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. Crippen, 618 N.W.2d at 565; Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 606 N.W.2d at 362; Shivvers, 595 N.W.2d at 478-79; Fouts, 592 N.W.2d at 35; Sandbulte, 343 N.W.2d at 464. The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record. Crippen, 618 N.W.2d at 565; Shivvers, 595 N.W.2d at 479; Schlader v. Interstate Power Co., 591 N.W.2d 10, 14 (Iowa 1999). An inference is legitimate if it is “rational, reasonable, and otherwise permissible under the governing substantive law.” Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct.App.1994). On the other hand, an inference is not legitimate if it is “based upon speculation or conjecture.” Id. If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists. Swartzendruber, 613 N.W.2d at 649; Shivvers, 595 N.W.2d at 479; Fouts, 592 N.W.2d at 35; Schlader, 591 N.W.2d at 14.

III. Spoliation of Evidence.

To establish a prima facie case of medical malpractice, the plaintiff must demonstrate the applicable standard of care, the violation of this standard of care, and a causal relationship between the violation and the harm allegedly suffered by the plaintiff. Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 165 (Iowa 1992). Expert testimony is nearly always required to establish each of these elements. Id.; see Edwards v. City of Des Moines, 349 N.W.2d 786, 789-90 (Iowa Ct.App.1984). Moreover, proximate cause, like the other elements, cannot be based upon mere speculation. See Walls v. Jacob N. Printing Co., 618 N.W.2d 282, 286 (Iowa 2000) (“[t]he record cannot be stretched that far without rank speculation”). No consequential fact in a case can be resolved by pure guesswork. Id.

Although the expert in this case, Dr. Overton, concluded the defendants breached the duty of care they owed to Paul, he was unable to establish the existence of a causal relationship between this breach and Paul’s death. Additionally, Dr. Over-ton could not even state that there was a possibility that Paul would have survived absent the defendants’ breach. See Edwards, 349 N.W.2d at 790.

Notwithstanding, Janet argues that the clinic’s failure to produce the medical records gives rise to an inference that the physicians’ conduct in treating her father was negligent and the cause of his death. She claims this inference is sufficient to overcome the motion for summary judgment.

It is a well established legal principle that the intentional destruction of or the failure to produce documents or physical evidence relevant to the proof of an issue in a legal proceeding supports an inference that the evidence would have been unfavorable to the party responsible for its destruction or nonproduction. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 491 (Iowa 2000); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979); 2 Clifford S. Fishman, Jones on Evidence § 13:12, at 489 (7th ed.1994) [hereinafter Fishman]. The nonproduction, alteration, or destruction of evidence is commonly referred to as spoliation. Langlet, 283 N.W.2d at 333. When established, the inference is regarded as an admission by conduct of the weakness of the party’s case. Edward W. Cleary et al., McCormick on Evidence § 273, at 808 (3d ed.1984); 2 Fishman § 13:12, at 489-90. The inference is imposed both for eviden-tiary and punitive reasons. Langlet, 283 N.W.2d at 333; 2 Fishman § 13:12, at 490. The evidentiary value of the inference is derived from the common sense observation that a party who destroys a document with knowledge that it is relevant to litigation is likely to have been threatened by the document. Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994) (when a party to an action has notice that an item is relevant to the lawsuit and proceeds to destroy the item, “common sense” dictates an inference that the party destroying the item is likely to have been threatened by the evidence); 2 Fishman § 13:12, at 490. Additionally, an inference serves to deter parties from destroying relevant evidence. Beil, 15 F.3d at 552; 2 Fishman § 13:12, at 490.

The inference can arise in a variety of circumstances, including medical malpractice actions involving the failure to produce relevant medical records. See generally Thomas G. Fischer, Annotation, Medical Malpractice: Presumption or Inference From Failure of Hospital or Doctor to Produce Relevant Medical Records, 69 A.L.R.4th 906 (1989 & Supp.2000) (discussing state and federal cases addressing spoliation inference in medical malpractice actions). However, the inference can only be based upon the intentional destruction of evidence. Hendricks, 609 N.W.2d at 491; State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997); State v. Hulbert, 481 N.W.2d 329, 334 (Iowa 1992); Langlet, 283 N.W.2d at 333. It is not warranted if the disappearance of the evidence is due to mere negligence, or if the evidence was destroyed during a routine procedure. See Hulbert, 481 N.W.2d at 333-34; Langlet, 283 N.W.2d at 334. Furthermore, the missing evidence must be “unthin the control of a patty whose interests would naturally call for its production.” Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 127, 143 N.W.2d 345, 348 (1966) (emphasis added); see Gamerdinger v. Schaefer, 603 N.W.2d 590, 595 (Iowa 1999). These elements are essential to both the common sense eviden-tiary rationale for the inference and its punitive sanction.

Janet argues she is entitled to the inference for purposes of summary judgment because the facts of her case must be considered in a light most favorable to her claim and all reasonable inferences must be drawn in her favor. However, this familiar rule of summary judgment applies to factual inferences, not those grounded in a legal principle. Janet is not entitled to the spoliation inference without showing the existence of a genuine issue of material fact supporting the inference. Thus, she must show intentional destruction of the records as well as control of the records. In doing this, she is entitled to have all reasonable inferences from the evidence drawn in her favor.

The factual basis to support the intentional nonproduction of the records in this case is based on Dr. Overton’s belief that the addition of handwritten notes to the transcribed notes of the physician’s assistant was unusual and suspicious, and could indicate a broader attempt by the clinic and' its doctors to conceal information. Yet, we think this logic amounts only to bare speculation and conjecture, and cannot be legitimately inferred from the facts. See Walls, 618 N.W.2d at 286; Meyn v. State, 594 N.W.2d 31, 34 (Iowa 1999).

The handwritten notes made by the physician’s assistant may support a reasonable inference that the information was added to the transcribed notes with a motive to protect against potential litigation. However, it would be rank speculation to infer from that fact, considered in a light most favorable to Janet’s claim, that the other records of the clinic were intentionally destroyed because the doctors believed that those records contained adverse information relevant to a potential lawsuit. The motive of the physician’s assistant to bolster her notes in anticipation of potential litigation does not show a motive by the clinic or its doctors to intentionally purge themselves of any records to prevent then-production during any subsequent litigation. Moreover, Janet has produced no other circumstances in addition to the physician’s assistant’s notes to support the spoliation inference. There were no circumstances alleged to show the clinic or its physicians believed the records might be harmful to them in any lawsuit, or other circumstances raised by Janet which are compatible with the common sense observation which supports the inference and the imposition of sanctions against the clinic or the physicians. Additionally, Janet has failed to show the existence of a genuine factual issue that the clinic even possessed or controlled the records at any relevant time to support the imposition of the spoliation inference. To the contrary, the facts are unchallenged that the records were delivered to the hospital.

Janet also argues that the failure to grant her the benefit of the spoliation inference violates public policy by punishing the blameless party and rewarding the party who lost the records. To the contrary, we find public policy supports the dismissal of this action. A spoliation inference should be utilized prudently and sparingly. See Crosser v. Iowa Dep’t of Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976). In cases in which we have permitted the spoliation inference, the party against whom the inference was used was in possession of the evidence and engaged in conduct resulting in the loss of the evidence under circumstances giving rise to a common sense observation that the evidence would have been unfavorable to the party. See Prudential Ins. Co. of Am. v. Lawnsdail, 235 Iowa 125, 130, 15 N.W.2d 880, 883 (1944) (insurance company destroyed record of policy after refusing payment on policy to insured); Warren v. Crew, 22 Iowa 315, 322 (1867) (party destroyed contract after learning of claim under it); see also Holmquist v. Volkswagen of Am., Inc., 261 N.W.2d 516, 523 (Iowa Ct.App.1977) (defendants tightened retention bolts on automobile after accident before plaintiff was able to examine automobile). In this case, there is no direct or circumstantial evidence to contradict the evidence presented by the clinic and its physicians that the medical records were delivered to the hospital and never returned, and no evidence to raise a genuine issue of fact whether the conduct of the clinic in failing to produce the records justified an inference that the records contained evidence which would have established the elements of negligence. Moreover, there is no evidence to show the motive of the physician who hand-delivered the medical file to the hospital was anything but to help the doctors at the hospital in their fight to save Paul’s life. See Hulbert, 481 N.W.2d at 334 (deputy’s motive was “to help, not hinder, the defense” when he erased tape while making a duplicate for the defendant).

We acknowledge that we are slow to grant summary judgment in negligence actions. Kulish v. Ellsworth, 566 N.W.2d 885, 888 (Iowa 1997) (malpractice actions are not ordinarily susceptible to summary judgment). Clearly, claims of negligence are fact-based and must normally be resolved by a trial. Walls, 618 N.W.2d at 284; Schermer v. Muller, 380 N.W.2d 684, 687 (Iowa 1986). We also recognize the frustration faced by litigants, like Janet, when documents and other evidence needed to help prove their claim disappear. Yet, the spoliation inference sought to be utilized by Janet is not grounded on the need or blamelessness of the party seeking the inference, or the mere fact that the evidence has disappeared. It is based on the nature of the conduct of the party who destroyed the evidence and the need to punish such conduct. Langlet, 283 N.W.2d at 333. This rationale is simply nowhere to be found under the circumstances presented in this case. Thus, without the inference, there is no evidence to support the proximate cause element of the claim and summary judgment is warranted.

The spoliation inference must be carefully applied in a fair and even manner to all parties. This means the party seeking the inference must generate a genuine factual issue whether the party in control of the evidence intentionally altered or destroyed it. If we permit the inference to be used under any lesser standard, the inference will lose its validity and impose unfair sanctions. It may also impose other unwanted burdens on our legal system. See Meyn, 594 N.W.2d at 34 (cause of action for negligent spoliation of evidence rejected in part because it would generate an increase in litigation and impose an undue burden on our court system).

IV. Conclusion.

We conclude the district court properly granted summary judgment. Janet was not entitled to a spoliation inference, and thus is unable to establish a sufficient showing of proximate causation to withstand defendant’s summary judgment motion.

AFFIRMED.

      . Dr. Flory did not see Paul or his EKG chart on January 3, 1996. However, Dr. Flory treated Paul at the clinic approximately two weeks before Paul’s death.


author: LAVORATO, Chief Justice.

text:
    Charles Leon KOLBE and Karen Sue Kolbe, Husband and Wife, Appellants, v. STATE of Iowa, Appellee.
    No. 99-0876.
    Supreme Court of Iowa.
    April 25, 2001.

      Wythe Willey of Wythe Willey Law Office, Cedar Rapids, for appellants.
    Thomas J. Miller, Attorney General, Robin G. Formaker and Richard E. Mull, Assistant Attorneys General, for appellee.
   LAVORATO, Chief Justice.

The issue here is whether the State is liable to an injured party for the State’s negligence in issuing a driver’s license to the person who caused the injury with his vehicle. The district court sustained the State’s motion for summary judgment, concluding the State owed no duty to the injured party. We agree and affirm.

I. Background Facts and Proceedings.

On June 28, 1997, Justin Allen Schulte, while driving a motor vehicle, struck Charles Leon Kolbe, who was riding a bicycle at the time. The accident occurred on Sac County road D-54 in Sac County, Iowa. As a result of the accident, Kolbe suffered severe injuries.

Schulte was driving with a restricted license, which required him to wear corrective lenses. Additionally, he was not to operate a motor vehicle in excess of forty-five miles per hour.

Schulte has a vision condition known as Stargardt’s disease. Stargardt’s disease results in loss of central vision and decrease in sharpness of peripheral vision. The disease is inherited and begins between the ages of 8 to 20. 2 J.E. Schmidt, M.D., Attorney’s Dictionary of Medicine and Word Finder S-198 (1991). At the time of the accident, Schulte was eighteen.

One of Schulte’s physicians, Dr. Alan Kimura, reported to the Iowa Department of Transportation (IDOT) that Schulte had Stargardt’s disease and that the disease caused difficulty with central vision. At the time of this report, Dr. Kimura was an associate professor in the Department of Ophthalmology at University of Iowa Hospitals and Clinics. Dr. Kimura had diagnosed Schulte as having Stargardt’s disease while Schulte was in the sixth grade.

The Stargardt’s disease did not prevent Schulte from leading an active life. For example, he participated in high school athletics, did family farm chores, and worked for a construction company as a skid loader operator. He also completed a driver’s education course in high school and received a “B plus” grade.

The IDOT first issued Schulte a driver’s license in 1995. To receive the license, Schulte underwent a process that permitted the IDOT to issue him a license on a “discretionary basis.” As part of this process, Schulte obtained recommendations from eye specialists, who performed eye examinations before recommending he receive a driver’s license. The IDOT forwarded information from the eye specialists to a medical advisory board. The board is a group of doctors selected by the Iowa Medical Society to serve anonymously as an independent source of' medical review for the IDOT. The doctors all recommended issuance of a driver’s license to Schulte.

As part of the process, the IDOT subjected Schulte to testing. One test consisted of an oral knowledge exam. The other was a driver’s test in which Schulte had to ride with an IDOT officer in town and in the country. . During that ride, Schulte had to identify road signs and vehicles on the road.

The IDOT tested Schulte again in June 1996 and on June 23, 1997 — five days before the accident in question. In both instances, Schulte successfully completed a driving test with an IDOT officer. Each time Schulte had to drive during daylight, dusk, and at night in rural areas upon the highway and in the city.

In May 1998, Charles Kolbe and his wife Karen Sue filed suit against the State of Iowa and the IDOT. They alleged, among other things, that the defendants “negligently and without adequate investigation issued driving privileges” to Schulte, which negligence was a proximate cause of the accident and injuries. Karen Sue asked for loss of spousal consortium. The Kol-bes later dropped the IDOT as a defendant.

Later, the district court sustained the State’s motion for summary judgment. The court ruled that the State was immune from suit under the discretionary function exception of the State Tort Claims Act, see Iowa Code § 669.14(1) (1997). The court also ruled that the State owed no duty to the Kolbes.

On appeal, the Kolbes contend that the State has no such statutory immunity. They also contend that the State has a statutory and regulatory duty not to issue a driver’s license to a person it knows or should know is, by reason of mental or physical disability, incapable of operating a motor vehicle safely. They further contend that the State breached this duty. In the alternative, the Kolbes contend the State has a common law duty to exercise ordinary care when it issues a driver’s license. In this case, they contend the State breached that duty. Because we conclude there was no such duty, we need not address the immunity issue. See Engstrorn v. State, 461 N.W.2d 309, 314 (Iowa 1990) (holding that State Tort Claims Act creates no new cause of action but merely recognizes and provides remedy for those already existing).

II. Scope of Review.

We review a ruling granting a motion for summary judgment for correction of errors at law. See Knudson v. City of Decorah, 622 N.W.2d 42, 48 (Iowa 2000). Summary judgment is appropriate when

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

Iowa R.Civ.P. 237(c).

When we review a summary judgment ruling, “we examine the record before the district court to decide whether any material fact is in dispute and whether the district court correctly applied the law.” Knudson, 622 N.W.2d at 48. We view the evidence in the light most favorable to the nonmoving party — in this case, the Kolbles — and they are “entitled to every legitimate inference that can be reasonably deduced from the evidence.” Id.

Additionally, this case involves issues of statutory construction. “Such issues raise legal questions and are properly resolvable by summary judgment.” Id.

Furthermore, “because the existence of a duty is a question of law for the court, it may appropriately be adjudicated on a motion for summary judgment.” Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999).

III. Duty.

To prove their negligence claim, the Kolbes must establish (1) the State owed them a duty; (2) the State breached or violated that duty; (3) this breach or violation was a proximate cause of their injuries; and (4) damages. See Sanford v. Manternach, 601 N.W.2d 360, 370 (Iowa 1999); Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995). When determining. the existence of a duty, we are guided by “legislative enactments, prior judicial decisions, and general legal principles.” Sanford, 601 N.W.2d at 370.

In their petition, the Kolbes raised a variety of allegations that essentially accuse the State of (1) failing to suspend or revoke Schulte’s driving privileges, (2) failing to require additional testing, (3) issuing a license when Schulte allegedly could not complete minimum testing requirements, (4) relying upon the advice of “unqualified” persons in determining whether to issue a license, and (5) issuing a license to Schulte when the State knew or should have known that Schulte could not safely operate an automobile.

These allegations involve a combination of asserted claims of negligence by the State in failing to perform statutory duties and performing such duties with lack of due care.

The Kolbes first assert the'State has a statutory and regulatory duty not to issue a driver’s license to an applicant who, by reason of mental or physical disability, is incapable of operating a vehicle safely. They contend the State breached this duty, which they assert is derived from Iowa Code section 321.177(7) (1995) and Iowa Administrative Code rule 761— 600.4(2).

In the alternative, the Kolbes contend that common law imposes on the State a duty to exercise ordinary care when it issues a driver’s license, and that in this case the State failed to exercise such care.

We begin with the Kolbes’ contention that the State had a statutory and regulatory duty which it breached, and which breach gave rise to an actionable claim of negligence.

A. Statutory and regulatory duty.

As mentioned, the Kolbes rely on Iowa Code section 321.177(7) and Iowa Administrative Code rule 761 — 600.4(2). Iowa Code section 321.177(7) provides that the IDOT “shall not issue a motor vehicle license ... [t]o any person when the director [of the IDOT] has good cause to believe the person by reason of physical or mental disability would not be able to operate a motor vehicle safely.” Iowa Code § 321.177(7).

Iowa Administrative Code rule 761— 600.4(2) similarly provides:

The [IDOT] shall not knowingly license any person who is unable to operate a motor vehicle safely because of physical or mental disability until that person has submitted a medical report stating that the person is physically and mentally capable of operating a motor vehicle.

Iowa Admin. Code r. 761 — 600.4(2). This rule appears intended to implement Iowa Code section 321.177(7). See Iowa Admin. Code r. 761 — 600.4.

Without conceding it breached the duty imposed under Iowa Code section 321.177(7) as implemented by Iowa Administrative Code rule 761 — 600.4(2), the State argues that even if it had, such breach does not necessarily give rise to a cause of action. We agree. See Seeman v. Liberty Mut. Ins. Co., 322 N.W.2d 35, 37-38 (Iowa 1982) (holding that a private cause of action does not arise solely from the violation of a statutory duty).

A “violation of a statutory duty gives rise to a tort claim only when the statute, explicitly or implicitly, provides for such a cause of action.” Sanford, 601 N.W.2d at 371. Absent such a provision, the violation of a statutory duty does not give rise to a private cause of action. See Marcus, 538 N.W.2d at 288-89.

There is no provision expressly providing a cause of action for violation of Iowa Code section 321.177(7) or Iowa Administrative Code rule 761 — 600.4(2). We therefore must employ the following four-factor test to determine whether a private cause of action against the State may be implied from the statute:

(1) Is the plaintiff a member of the class for whose benefit the statute was enacted? (2) Is there any indication of legislative intent, explicit or implicit, to either create or deny such a remedy? (3) Would allowing such a cause of action be consistent with the underlying purpose of the legislation? (4) Would the private cause of action intrude into an area over which the federal government or a state administrative agency holds exclusive jurisdiction?

Marcus, 538 NW.2d at 288; accord Sanford, 601 N.W.2d at 371. If any one of these factors is not satisfied, there is no implied cause of action. See Sanford, 601 N.W.2d at 372; Marcus, 538 N.W.2d at 288-89; Engstrom, 461 N.W.2d at 316. Additionally, “[i]f we do not imply a cause of action for statutory violations, we likewise refuse to imply a tort from the violation of a rule enacted to carry out statutory directives.” Engstrom, 461 N.W.2d at 316.

To resolve the issue, we address only the second factor, which is the most relevant inquiry here: Is there any indication of legislative intent, explicit or implicit, to either create or deny such a remedy? As mentioned, there is no express indication of legislative intent to create a remedy, i.e., recovery of money damages for violation of Iowa Code section 321.177(7).

In determining whether there is any indication of legislative intent to implicitly create a cause of action, we have previously considered the purpose for which the statute was created. See Unertl v. Bezanson, 414 N.W.2d 321, 325-26 (Iowa 1987); Seeman, 322 N.W.2d at 42. The subsection of Iowa Code chapter 321 in which section 321.177(7) is located clearly deals with regulatory matters pertaining to motor vehicle licenses. For example, the subsection covers (1) who is and who is not eligible for motor vehicle licenses, (2) driver education courses, (3) instruction permits, (4) driver’s permits, (5) driver’s license applicant examinations, (6) the types of licenses which may be issued and their contents, (7) fees for licenses, and (8) expiration and renewal of licenses. See Iowa Code §§ 321.174-.200. These provisions clearly suggest that Iowa Code section 321.177(7) was intended to be a regulatory measure designed to do nothing more than simply limit the driving privileges of those who are incapable of operating a motor vehicle safely. It is devoid of any suggestion of a private remedy. See Unertl, 414 N.W.2d at 326 (holding that provisions intended as regulatory measures did not create cause of action).

Because we do not imply a cause of action for a violation of Iowa Code section 321.177(7), we likewise refuse to imply such an action for the violation of rule 761 — 600.4(2) implemented to carry out this statutory provision. See Engstrom, 461 N.W.2d at 316. This is consistent with the clearly established law that administrative rules cannot go further than the law permits. Iowa Nat’l Indus. Loan Co. v. Iowa State Dep’t of Revenue, 224 N.W.2d 437, 441 (Iowa 1974).

We conclude Iowa Code section 321.177(7) and rule 761 — 600.4(2) provide the Kolbes with no right of action against the State. This still leaves for our consideration, however, their contention that they have a common law claim against the State.

B. Common law duty.

The Kolbes contend that common law imposes on the State an affirmative duty to exercise ordinary care to avoid injury to persons in carrying out the functions it undertakes, whether or not those functions are mandated by statute or regulation.

Applying this reasoning here, the Kolbes argue that the statutory and administrative mandates that govern the licensing of motor vehicle operators in Iowa are for the benefit of a particularized class — rightful users of the Iowa roads. The Kolbes assert that they were members of this class at the time of the accident and for that reason the State owed them a legal duty to act with due care in carrying out such statutory and administrative mandates. They further assert that failure of the IDOT to adhere to those statutory and administrative mandates, and to otherwise act with care, creates a legal duty owed to them by the State.

The issue boils down to whether the State owed a legal duty to the Kolbes to exercise due care when it issued a driver’s license to Schulte.

In determining whether a defendant owes a legal duty to the plaintiff, three factors usually govern our analysis: (1) the relationship between the parties, (2) reasonable foreseeability of harm to the person who is injured, and (3) public policy considerations. See J.A.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999).

We use these factors under a balancing approach and not as three distinct and necessary elements. In the end, 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. (citation ommitted.)

A linkage of a legal duty to a particular relationship between the parties is not always a requirement for actionable negligence. See Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991). For example, such a linkage is not required when the direct consequences of a negligent act cause harm to another. Id. Such linkage, however, is required “for most claims based on an alleged failure of a [defendant] to aid or protect another person or to control the conduct of a third party.” Id.; see also Restatement (Second) of Torts § 314 cmt. c (1965) (explaining the origin of the requirement).

Restatement (Second) of Torts section 315 is the general rule pertaining to an alleged failure of a defendant to aid or protect another person or to control the conduct of a third party. The rule provides:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315. We have applied the rule on several occasions. See, e.g., J.A.H., 589 N.W.2d at 258; Leonard v. State, 491 N.W.2d 508, 510 (Iowa 1992); Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990).

Here, the Kolbes are asserting a legal duty by virtue of an asserted special relationship between the State and them that gives them the right of protection. They do not claim a specific individualized relationship between the State and them, but rather claim membership in a specific group or class — the traveling public, or as they phrase it, the “rightful users of the roads.” We note that the Kolbes do not claim a special relationship arising out of the unique or particularized facts of this case, but rather claim such a relationship is created or conferred by Iowa Code chapter 321, and in particular Iowa Code section 321.177(7).

The State disputes the assertion that these motor vehicle statutes create or confer such a special relationship. The State further contends that what we have here is nothing more than a duty owed to the general public and that by virtue of the “public duty doctrine,” breach of such duty is not actionable. The Kolbes respond that even if the statutes do not confer or create a special relationship, the public duty doctrine has been eliminated in this state, and therefore they are not precluded from pursuing an action for breach of a general duty.

The public duty doctrine provides that “if a duty is owed to the public generally, there is no liability to an individual member of that group.” Wilson v. Nepstad, 282 N.W.2d 664, 667 (Iowa 1979). The Kolbes contend that this court discarded this doctrine in Wilson and in Adam v. State, 380 N.W.2d 716 (Iowa 1986).

We agree with the State’s contention that this court did not discard the public duty doctrine in Wilson. Although Wilson addressed the continued viability of that doctrine in Iowa, the court never resolved the question. Rather, the court concluded the doctrine did not bar the plaintiffs suit because the statutes and ordinances in question were not designed to protect the general public, but rather were designed to protect a “special, identifiable group of persons.” Wilson, 282 N.W.2d at 672. We confirmed this reading of Wilson in Sankey, 456 N.W.2d at 209.

However, in Adam, this court rejected the State’s invocation of the doctrine. The court expressly concluded that the public duty doctrine was incompatible with the State Tort Claims Act. Adam, 380 N.W.2d at 724. However, a close reading of Adam shows that it was unnecessary to reach this conclusion because as in Wilson, the statute at issue in Adam was not for the benefit of the general public but rather “was for the benefit of the class to which plaintiffs belong[ed] — producers doing business with grain dealers.” Id. at 723. Given the court’s statements rejecting the public duty doctrine were not necessary to resolve the issue before it, we think those statements were dictum. Thus, in Adam, as in Wilson, we did not conclusively reject the doctrine, but rather only concluded that because of the nature of the statute in question, the doctrine did not bar plaintiffs’ claim.

Since Wilson and Adam, we have not expressly abolished the public duty doctrine, although we have narrowed its application. We have routinely held that a breach of duty owed to the public at large is not actionable unless the plaintiff can establish, based on the unique or particular facts of the case, a special relationship between the State and the injured plaintiff consistent with the rules of Restatement (Second) of Torts section 315. See Sankey, 456 N.W.2d at 209. Our holdings have been “consistent with the principle that public employees share the same — but not greater — liability to injured parties as other defendants under like circumstances.” Id. The duty to the public can either arise from a statute or from the State’s obligation to protect the public at large. See Fitzpatrick v. State, 439 N.W.2d 663, 667 (Iowa 1989) (holding that although State had duty to keep felons in custody which obligation flowed to the public at large, State had no legal duty to police officer injured by parolee given lack of special relationship between State and victim).

We agree with the State that the licensing provisions in Iowa Code chapter 321, and more specifically Iowa Code section 321.177(7), are for the benefit of the public at large. Accordingly, we reject the Kol-bes’ contention that they can avoid the preclusive effect of the public duty doctrine by claiming membership to a special, identifiable group for whose benefit the statutes were enacted. Furthermore, as mentioned, the Kolbes do not claim a special relationship arising out of the particular facts of this case. For these reasons, we conclude that there are no facts establishing a special relationship upon which the Kolbes’ claims of liability may be premised.

Additionally, we think public policy considerations support our determination that the State is not liable for negligently issuing a driver’s license when there is no special relationship existing between the State and the victim. We reach this conclusion even though it is reasonably foreseeable such negligent action might result in harm to a highway user.

One such policy consideration is that our rule is consistent with the principle that the State “shares the same' — but not greater — liability to injured parties as other defendants under like circumstances.” Sankey, 456 N.W.2d at 209; see also Iowa Code § 669.2(3)(a) (providing that under the State Tort Claims Act, the State’s exposure in tort does not go beyond that of a private person).

A recognition of the tort for “negligent issuance of a driver’s license” would likely chill the State’s licensing determinations, making it unreasonably difficult for certain segments of our society to secure a driver’s license. Senior citizens with declining vision and visually impaired citizens, both of whom would ordinarily pass existing stringent state requirements, would face the possibility of not driving at all.

A similar policy consideration prompted one court to refuse to recognize the tort of negligent issuance of a driver’s license. See Ryan v. State, 420 A.2d 841, 843 (R.I.1980). At issue in that case was a statute that allowed the State to reinstate revoked licenses of those drivers whom it considered safe. Id. In refusing to recognize a duty running from the State to individual members of the public for negligently reinstating a driver, the court said:

In enacting [the statute] the Legislature intended to empower the [State] to withhold reinstatement after examining the applicant’s driving record. Thus, the statute clearly has as its purpose the protection of the public at large. We are unable to conclude, however, that the Legislature intended to create a duty running to individual members of the public. We are not convinced that the Legislature intended such a drastic result when it enacted [the statute]. Furthermore, such a drastic remedy would likely deter the [State] from reinstating any drivers under [the statute].

Id. (citations omitted) (emphasis added).

In Johnson v. Indian River School District, the court noted that allowing the tort of negligent issuance of a driver’s license “would generate a drastic expansion of liability” and “[s]ince the [m]otor vehicle field is highly regulated by state statute, such a significant policy change, if warranted, should be made by the General Assembly, not the courts.” 723 A.2d 1200, 1203 (Del.Super.Ct.), aff'd, 723 A.2d 397 (Del.1998). Here, the motor vehicle field is similarly highly regulated. We too think the policy decision to impose liability should be the legislature’s choice, not ours.

IV. Disposition.

In sum, we conclude that neither statutory nor common law gives rise to an actionable claim for negligent issuance of a driver’s license. Accordingly, the district court was correct in sustaining the State’s motion for summary judgment.

AFFIRMED.