author: TERNUS, Justice. LAVORATO, Chief Justice, STREIT, J.,

text:
    Monty ALEXANDER, Appellant, v. The MEDICAL ASSOCIATES CLINIC, Professional Corporation, Appellee.
    No. 00-1764.
    Supreme Court of Iowa.
    June 12, 2002.

      Matthew D. Dake and Melissa M. Har-baugh-Adams of Wertz & Leehy, P.C., Cedar Rapids, for appellant.
    Gregory C. Guiney of Lane & Waterman, Davenport, for appellee.
   TERNUS, Justice.

The plaintiff in this case, a trespasser on the defendant’s land, asks us to abolish the common law rule limiting the liability of a landowner for injuries to trespassers and replace it with a negligence standard. We decline to do so and therefore affirm the district court’s grant of summary judgment to the defendant landowner.

I.Background Facts and Proceedings.

The defendant/appellee, Medical Associates Clinic, P.C., owns land upon which its office building is located. The defendant’s property includes an undeveloped, open field that abuts a residential area. Unknown to the defendant, the plaintiff/appellant, Monty Alexander, entered the field late one evening to retrieve his sister’s dog. Walking in darkness, he fell in a ditch and injured his knee.

The plaintiff filed this suit to recover damages for his injury, asserting the defendant was negligent in its maintenance of the property. After discovery, the defendant filed a motion for summary judgment alleging the undisputed facts established that the plaintiff was a trespasser and there were no facts to support a finding that the defendant breached its limited duty of care to a trespasser. The plaintiff resisted. The district court granted summary judgment, ruling (I) as a matter of law, the plaintiff was a trespasser, (2) the applicable standard of care was the avoid7 anee of willful and wanton injury, not negligence, and (3) there were no facts showing the defendant breached this duty of care. This appeal followed.

II. Scope of Review.

The scope of review for summary judgment rulings is familiar:

Our review of a summary judgment ruling is for the correction of errors of law. Summary judgment is appropriate where the moving party shows there are no genuine issues of material fact and it is entitled to judgment as a matter of law. In determining whether the moving party has met this burden, we view the record in the light most favorable to the party opposing the motion for summary judgment. This court’s role on appeal is “to determine whether a genuine issue of material fact exists and whether the law was correctly applied.”

Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000) (citations omitted) (quoting Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 528 (Iowa 1995)).

III. Issues on Appeal.

The issues raised on appeal are rather narrow. The plaintiff challenges- only the second part of the district court’s decision, namely, that the defendant must be judged by the common law duty to avoid willful and wanton injury to a trespasser. The plaintiff argues on appeal that the defendant should be held to a duty of reasonable care and that there is a factual issue as to whether that duty of care was breached. The plaintiff does not contest the district court’s ruling that, as a matter of law, he was a trespasser and that the defendant did not breach its common law duty of care to the plaintiff. Thus, the determinative issue on appeal is whether Iowa should abandon its common law rule of trespasser liability and replace it with a duty of reasonable care under the circumstances.

IV. Discussion.

Iowa has long adhered to the common law rule that “a possessor of land owes no duty to a trespasser other than not to injure him willfully or wantonly, and to use reasonable care after his presence becomes known to avoid injuring him.” Champlin v. Walker, 249 N.W.2d 839, 842 (Iowa 1977); accord Mann v. Des Moines Ry., 232 Iowa 1049, 1057, 7 N.W.2d 45, 51 (1942); Gwynn v. Duffield, 66 Iowa 708, 713, 24 N.W. 523, 525 (1885). Thus, a landowner’s duty with respect to a trespasser is twofold: (1) the landowner may not use his land in such a way that he deliberately or maliciously causes injury to a trespasser, and (2) once the landowner is aware of the presence of a trespasser, the landowner must use reasonable care to avoid injuring the trespasser. See generally Webster’s Third New International Dictionary 2575 (defining “wanton”), 2617 (defining “willful”). A “trespasser” is one who has no legal right to be upon another’s land and enters the land without the express or implied consent of the owner. Reasoner v. Chicago, Rock Island & Pac. R.R., 251 Iowa 506, 510, 101 N.W.2d 739, 741 (1960); Mann, 232 Iowa at 1056, 7 N.W.2d at 50.

The trespasser rule arose “out of the special privileges accorded the occupation of land” in feudal England. Rosenau v. City of Estherville, 199 N.W.2d 125, 135 (Iowa 1972); accord Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 410, 3 L.Ed.2d 550, 554 (1959); 62 Am.Jur.2d Premises Liability § 79, at 431-32 (1990). The rule has continued to exist based on a belief that a property owner should not be obligated to make his or her property safe “or to keep it in any particular condition” for the benefit of intruders. Mann, 232 Iowa at 1062, 7 N.W.2d at 53. A well-known treatise on torts perhaps best articulates the rationale behind our trespasser rules:

The possessor of land has a legally protected interest in the exclusiveness of his possession. In general, no one has any right to enter without his consent, and he is free to fix the terms on which that consent will be given. Intruders who come without his permission have no right to demand that he provide them with a safe place to trespass, or that he protect them in their wrongful use of his property.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 58, at 393 (5th ed.1984) [hereinafter Prosser on Torts],

The plaintiff points out that several jurisdictions have abolished the traditional analysis that determines the duty owed by a landowner based on the status of the injured party — invitee, licensee or trespasser. See Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 604-05 (Iowa 1998) (citing cases that have rejected common law distinctions). In fact, in Sheets, four members of this court favored taking a first step down that path by abolishing the distinction between invitee and licensee. Id. at 606. That position, however, did not gain the support of a majority of the court, and premises liability in Iowa remains dependent on the status of the plaintiff. Richardson v. Commodore, Inc., 599 N.W.2d 693, 698 n. 3 (Iowa 1999).

The present case presents a different question than that presented in Sheets. In this case, we are asked to impose upon landowners a duty of reasonable care with respect to trespassers — persons who enter the landowner’s property without the express or implied consent of the landowner. Although, as already noted, a few courts have abandoned all classifications with respect to landowner liability, the majority of courts have retained the special duties of a property owner to a trespasser. We will briefly review the position of other courts on this issue, not because the law is a popularity contest where the side with the most votes wins, but because the judgment of other jurisdictions reflects, we think, a prevailing belief that the interests of trespassers do not warrant a further reduction in the right of property owners to use their land as they see fit.

The landmark case in which a court first abandoned the common law classifications historically used in premises liability law was Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), abrogated in part by statute as stated in Calvillo-Silva v. Home Grocery, 19 Cal.4th 714, 80 Cal.Rptr.2d 506, 968 P.2d 65, 72 (1998). By the end of the 1970s, seven states had followed California’s lead and five states had not, the latter group choosing instead to retain the traditional rules based on the entrant’s status. During that same period six states chose to abolish or modify the distinction made between invitees and licensees, but did not take the same step with respect to trespassers. Thus, in the twelve years after Rowland, a total of eleven states rejected California’s rule that the liability of property owners to trespassers should be judged by the same standard as their liability to persons legally on their land.

Since 1980, the rejection of California’s one-rule-fits-all approach has been even more overwhelming. In Rhode Island, the Rhode Island Supreme Court partially overruled its earlier decision that had followed Rowland and held that the traditional rules governing liability to trespassers should be retained. Tantimonico v. Allendale Mut Ins. Co., 637 A.2d 1056, 1057 (R.I.1994), overruling in part Mariorenzi v. DiPonte, Inc., 114 R.I. 294, 333 A.2d 127, 131-32 (1975). In addition, the state legislatures in California and Colorado abrogated or partially abrogated court decisions adopting a negligence standard for all premises liability actions. In Colorado, the legislature passed a statute that reinstated a classification-based system of liability for landowners. See Colo.Rev.Stat. § 13-21-115 (1997). In California, in response to cases in which trespassing criminals had recovered for injuries incurred during their unlawful intrusions, the state legislature .enacted a law that limited landowners’ liability to trespassers who were on the property to commit a crime, essentially reinstating the common law duty in such cases. See 1985 Cal. Stat. ch. 1541, § 1 (codified at Cal. Civil Code § 847 (West 2002)).

In addition to those jurisdictions retreating from a prior, wholesale adoption of negligence principles, eight states refused to change their conventional principles of trespasser liability, even though they judicially abolished or modified the distinction between an invitee and a licensee. Additionally, two states, Maryland and Oklahoma, decided to retain their common law rules governing liability to trespassers, but left open the question whether they would discard the invitee and licensee classifications. Murphy v. Baltimore Gas & Elec. Co., 290 Md. 186, 428 A.2d 459, 463 (1981), overruled in part on other grounds by Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 705 A.2d 1144, 1151 (1998); Lohrenz v. Lane, 787 P.2d 1274, 1276-77 (Okla.1990); see Abbott v. Wells, 11 P.3d 1247, 1248 (Okla.2000) (applying status analysis to invitee in premises liability case). Finally, seven more states chose to maintain the common law rules making the duty owed by a landowner dependent on the status of the injured party.

In stark contrast to this widespread rejection of negligence principles in trespasser cases, only one state since the 1970s has joined the minority position, abandoning all classifications. Moody v. Manny’s Auto Repair, 110 Nev. 320, 871 P.2d 935, 942 (1994).

In summary, presently six states use a negligence standard to govern trespasser liability; twenty-nine states have declined the opportunity to change their rule in such cases; and two state legislatures have reinstated the common law trespasser rule after it had been abolished by court decision. Given the fact that only one court in the last twenty-seven years has abandoned the common law trespasser rule, the so-called “trend” to adopt a universal standard of care, for premises liability has clearly lost momentum. See Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146, 148 (1988) (“Although a number of jurisdictions during' the 1970⅛ indicated a willingness to discard the legal distinctions between licensees and invitees, that abolition movement has since lost its steam.”); Lohrenz, 787 P.2d at 1276 (stating “a number of courts which have more recently considered the issue[ ] have expressed continued adherence to the common law principles of duty based on status as a proper balance between the rights of a landowner and those of the general public”); Tantimonico, 637 A.2d at 1058, 1060 (noting that “by the late seventies an increasing number of courts had specifically rejected Rowland ” and that “[t]he more recent trend in premises-liability law is to uphold the traditional common-law categories”). Keeton, in his treatise on torts, suggests that courts are acquiring “a more healthy skepticism toward invitations to jettison years of developed jurisprudence in favor of beguiling legal panacea.” Prosser on Torts § 62, at 434.

We think the California approach has failed to gain favor, at least with respect to trespasser liability, because the common law rule retains validity in modern day life. See id. (stating “courts are gaining a renewed appreciation for the considerations behind the traditional duty limitations toward trespassing adults”). Land ownership is not limited to the privileged few in modern American society; many, many persons own real property. The private ownership of land continues to be a treasured opportunity, and the interests of landowners are still deserving of consideration. We agree with one treatise writer that in a society such as ours, “it is considered a socially desirable policy to allow a person to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right.” Id. § 58, at 395. As one court has stated, “It is unreasonable to subject an owner to a ‘reasonable care’ test against someone who isn’t supposed to be there and about whom he does not know.” Wood v. Camp, 284 So.2d 691, 693 (Fla. 1973).

The common law rule is also better suited to achieve a reasonable balance between individual property rights and the interests of a trespasser. Under the common law rule, a landowner knows in advance what his duty is; he must refrain from maliciously or deliberately injuring a trespasser. A duty of reasonable care, in contrast, despite its common usage, is based on a much more amorphous standard, providing little guidance to the landowner. See id. at 694 (“Such vague terminology applied in every circumstance affords no guidelines or distinctions ...; just to say that the rule is ‘reasonable care under the circumstances’ in all instances ignores the responsibility of the law to provide guidance.”); Carter v. Kinney, 896 S.W.2d 926, 930 (Mo.1995) (refusing to abolish common law classifications, stating “[t]o abandon the careful work of generations for an amorphous ‘reasonable care under the circumstances’ standard seems — to put it kindly — improvident”); Tantimonico, 637 A.2d at 1059 (quoting another jurist’s contrast of the common law rule, described as “‘well-settled and reasonable,’ ” with the negligence standard, “ ‘a single vague duty of reasonable care, under which the property owner acts at his peril with no standard by which he can judge his obligations in advance’ ” (citation omitted)). Moreover it is no solace to the landowner, who has spent emotional and monetary resources to defend a meritless suit, that a judge or jury eventually finds no liability. See Wood, 284 So.2d at 694 (noting the assurance that a. jury might well find a landowner has not violated a duty of reasonable care “is a dangerous generality (and expense) to which to ' subject- an owner”). Balanced against the need for a predictable standard by which landowners may govern their conduct is the absence of any right of a trespasser to claim more generous protection since the trespasser comes on the land without the express or implied consent or invitation of the property owner. See Poulin v. Colby College, 402 A.2d 846, 851 n. 5 (Me.1979) (“Whereas both invitees, and licensees enter another’s lands under color of right, a trespasser has no basis for claiming extended protection.”).

In summary, we remain unconvinced that the rights of property owners have so little value in today’s society that those rights should be diminished in favor of persons trespassing on another’s land. The common law standard is just as viable today as it was a century ago: a landowner has a duty not to injure a trespasser maliciously or deliberately, and to use reasonable care after the trespasser’s presence becomes known to avoid injuring the trespasser. See Champlin, 249 N.W.2d at 842. This duty strikes an appropriate balance between the interests of the landowner and the trespasser and therefore we decline the plaintiffs invitation to abandon it. We express no opinion on whether the differentiation made between invitees and licensees remains viable.

V. Disposition.

We conclude the district court applied the correct legal principles in determining that the defendant was entitled to judgment as a matter of law. Because the plaintiff claims no other error in the court’s ruling, we affirm.

AFFIRMED.

All justices concur except LAVORATO, C.J., who concurs specially and LARSON, J., who joins this concurrence.

STREIT, J., concurs specially by a separate opinion.

LAVORATO, Chief Justice,

(concurring specially).

In Sheets v. Ritt, Ritt & Ritt, Inc., four justices of this court decided to abrogate the common-law distinctions in' premises liability cases between invitees and licensees. 581 N.W.2d 602, 606 (Iowa 1998). They stopped short of deciding “whether a distinction should persist with regard to trespassers,” leaving that question “for an appropriate case in which the parties can test whether the special nature of an act of trespass still calls for a continuation of that entrant’s status.” Id.

For reasons that follow, I suggest the four justices in Sheets were correct in their decision to abolish the common-law duty distinctions between invitees and licensees in premises liability cases. See id. As for trespassers, I would follow the lead of those states that have abolished the distinction between invitees and licensees but have retained the common-law rules regarding trespassers. See Washington Metro. Area Transit Auth. v. Ward, 433 A.2d 1072, 1073-74 (D.C.1981); Wood v. Camp, 284 So.2d 691, 693, 695 (Fla.1973); Jones v. Hansen, 254 Kan. 499, 867 P.2d 303, 310 (1994); Poulin v. Colby College, 402 A.2d 846, 851 (Me.1979); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 51-52, 51 n. 7 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639, 642 (1972); Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51, 57 (1996); Ford v. Bd. of County Comm’rs, 118 N.M. 134, 879 P.2d 766, 770 (1994); Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882, 892 (1998); O’Leary v. Coenen, 251 N.W.2d 746, 751 (N.D.1977); Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn.1984), overruled in part on other grounds by McIntyre v. Balentine, 833 S.W.2d 52, 54, 57 (Tenn.1992); Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436, 446 (1999); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1, 5, 11 (1975); Clarke v. Beckwith, 858 P.2d 293, 296 (Wyo.1993). This approach represents the middle ground.

I. Background. To understand why I favor abolishing the distinction between invitees and licensees, some historical background is in order. The evolution of the common-law trichotomy of invitee, licensee, and trespasser came about in a much different time and in a wholly different legal climate from the one that exists today. Mallet, 522 S.E.2d at 439.

The trichotomy “traces its roots to nineteenth-century England.” Nelson; 507 S.E.2d at 887 (citing John Ketchum, Missouri Declines an Invitation to Join the Twentieth Century: Preservation of the Licensee-Invitee Distinction in Carter v. Kinney, 64 UMKC L.Rev. 393, 394 (1995)). The trichotomy “emanated from an English culture deeply rooted to the land; tied with feudal heritage; and wrought with lords whose land ownership represented power, wealth, and dominance.” Id. (citing same). Although “aware of the threat that unlimited landowner freedom and its accompanying immunity placed upon the community,” nineteenth-century courts nevertheless “refused to provide juries with unbounded authority to determine premises-liability cases.” Id. (citing Michael Sears, Abrogation of the Traditional Common Law of Premises Liability, 44 U. Kan. L.Rev. 175, 176 (1995)). They did so because “juries were comprised mainly of potential land entrants who most likely would act to protect the community at large and thereby reign in the landowner’s sovereign power over his land.” Id. (citing same). The trichotomy was therefore “created to disgorge the jury of some of its power by either allowing the judge to take the case from the jury based on legal rulings or by forcing the jury to apply the mechanical rules of the trichotomy instead of considering the pertinent issue of whether the landowner acted reasonably in maintaining his land.” Id.

Moreover, the trichotomy came about at a time when negligence principles were not in existence. Id. (citing Norman S. Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 Law Q. Rev. 182, 184 (1953)). When these principles did emerge, they conflicted with the immunity conferred upon landowners under the trichotomy. Id. (citing Kathryn E. Eriksen, Premises Liability in Texas— Time for a “Reasonable” Change, 17 St. Mary’s L.J. 417, 421 (1986)). Despite the conflict, common-law courts refused to replace the trichotomy with modern principles of negligence law, “as they did in almost all other tort areas, but rather ‘superimposed the new [negligence] principles upon the existing framework of entrant categories.’ ” Id. at 887-88 (quoting Sears, Abrogation of the Traditional Common Law of Premises Liability, 44 U. Kan. L.Rev. at 176 (1995)). As a result, we now have the “current scheme of premises-liability law which allows judges to maintain control over jury discretion while, at the same time, utilizing ‘duty of care’ principles set forth in negligence theory.” Id. at 888 (citing same).

II. The Change. Ironically, the first move toward abolishing the trichotomy occurred in England, the jurisdiction that gave rise to the trichotomy. In 1957, England passed the Occupier’s Liability Act which abolished the distinction between invitees and licensees. See Occupier’s Liability Act, 5 & 6 Eliz. 2, c. 31 (1957) (Eng.). The Act imposed upon the occupier of land a “common duty of care” toward all persons who lawfully enter the premises. Id.

Two years later, the United States Supreme Court criticized the trichotomy and refused to import it into admiralty law. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-32, 79 S.Ct. 406, 409—410, 3 L.Ed.2d 550, 554-55 (1959). The Court noted that “[t]he distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism.” Id. at 630, 79 S.Ct. at 410, 3 L.Ed.2d at 554. The Court further noted:

In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create sub-classifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards “imposing on owners and occupiers a single duty of reasonable care in all the circumstances.”

Id. at 630-31, 79 S.Ct. at 410, 3 L.Ed.2d at 554-55 (footnotes omitted).

Nine years following Kermarec, California abolished its traditional duty classification scheme of invitees, licensees, and trespassers and replaced it with ordinary negligence principles. Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, 568-69 (Cal.1968). Rowland provided the impetus for a number of jurisdictions to reassess the viability of the trichotomy as outlined in the majority opinion in the case before this court.

In recent times, this court has been poised to abandon the trichotomy. For example, four years after Rowland, this court questioned the future applicability of the trichotomy, citing and discussing Kermarec and Rowland. See Rosenau v. City of Estherville, 199 N.W.2d 125, 135-36 (Iowa 1972). In two other cases, this court expressed its displeasure with the trichoto-my. See Paul v. Luigi’s, Inc., 557 N.W.2d 895, 897 (Iowa 1997) (explaining our reluctance to conclusively establish land possessor’s duty of care on the basis of injured party’s status); Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984) (same). Finally, as mentioned, four justices of this court took the step anticipated in Paul, Pottebaum, and Rosenau and decided to abrogate the distinction in premises liability cases between invitees and licensees. See Sheets, 581 N.W.2d at 606.

III. Reasons for Abolishing the Distinction Between Invitees and Licensees. As I mentioned, inherent in the trichotomy is the notion that a jury could not be trusted to enter a just verdict. As one court observed, “jurisdictions retaining the trichotomy fear that plaintiff-oriented juries — like feudal juries composed mostly of land entrants — will impose unreasonable burdens upon defendant-landowners.” Nelson, 507 S.E.2d at 888. The same court answers the argument by noting that juries have properly applied negligence principles in all other areas

of tort law, and there has been no indication that defendants in other areas have had unreasonable burdens placed upon them. Moreover, given that modern jurors are more likely than feudal jurors to be landowners themselves, it is unlikely that they would be willing to place a burden upon a defendant that they would be unwilling to accept upon themselves.

Id.; see also Jones, 867 P.2d at 310 (“Studies suggest that abolition of the distinctions between the duty owed to an invitee and that owed to a licensee has not altered greatly the results reached, has not left the juries without direction or standards by which to judge the action of the occupier of lands, and has resulted in outcomes that would probably be the same as if the status rules had been applied.”)

Perhaps the most important reason for abolishing the distinction is that the tricho-tomy has led to confusion in the law and inequity in the cases decided. Recovery by an entrant in many instances “has become largely a matter of chance, dependent upon the pigeonhole in which the law has put him, e.g. ‘trespasser,’ ‘licensee,’ or ‘invitee’ — each of which has had radically different consequences in law.” Peterson, 199 N.W.2d at 643. Consider the following:

A canvasser who comes on your premises without your consent is a trespasser. Once he has your consent, he is a licensee. Not until you do business with him is he an invitee. Even when you have done business with him, it seems rather strange that your duty towards him should be different when he comes up to your door from what it was when he goes away. Does he change his colour in the middle of the conversation? What is the position when you discuss business with him and it comes to nothing? No confident answer can be given to these questions. Such is the morass into which the law has floundered in trying to distinguish between licensees and invitees.

Mallet, 522 S.E.2d at 441 (citations omitted). The point is that “[i]t is often difficult, if not impossible, to discern an entrant’s status.” Vega v. Piedilato, 154 N.J. 496, 713 A.2d 442, 450 (N.J.1998) (Handler, J., concurring). Mallet cites the following examples from other jurisdictions underscoring the tortured logic courts have gone through in applying the tricho-tomy: Franconia Assoc. v. Clark, 250 Va. 444, 463 S.E.2d 670 (Va.1995) (considering whether mall employee lost status as an invitee by attempting to stop a robber); Lakeview Assoc. Ltd. v. Maes, 907 P.2d 580 (Colo.1995) (discussing whether tenant, who paid rent but happened to not own a car, was invitee or licensee when she fell while walking across the parking lot of an apartment complex); Peterson v. Romine, 131 Idaho 537, 960 P.2d 1266 (Idaho 1998) (considering whether plaintiff who parked in downtown parking lot provided for shoppers, but who shopped at an adjacent but unaffiliated store, was therefore not a business invitee when she was injured by stepping into a pothole); and Gladon v. Greater Cleveland Reg'l Transit Auth., 75 Ohio St.3d 312, 662 N.E.2d 287 (Ohio 1996) (questioning whether fare-paying customer of subway system, who was assaulted and thrown onto tracks by third parties upon exiting train, was still invitee when left lying on tracks and struck by train). Mallet, 522 S.E.2d at 447 n. 7.

The court in Mallet makes the point that in cases like these the question should not be whether the plaintiff was a licensee or invitee. Rather, the question should be were the premises in question safe? Or, alternatively, “did the landowner exercise reasonable care under the circumstances to ensure that [the premises were] safe for a reasonably forseeable event, namely, that someone [might be injured under the circumstances]?” Id. at 442. As the court observed, “[f]raming the question in this manner is important, because it recognizes that neither landowners nor entrants make decisions with these archaic distinctions in mind.” Id.

I agree with the Mallet court’s ultimate conclusion:

If we wish for our law to be predictable, and we do, then we have a duty to shape it in such a way that it meshes with the general, reasonable assumptions that people make in their daily lives. Because the common law distinction between invitee and licensee does not meet that standard, it should be discarded.

Id. at 443.

Closely aligned with this view is the Massachusetts Supreme Court’s reason for abolishing the distinction between licensees and invitees:

The problem of allocating the costs and risks of human injury is far too complex to be decided solely by the status of the entrant, especially where the status question often prevents the jury from ever determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case.

Mounsey, 2A1 N.E.2d at 51.

The court in Mounsey also answered those critics who say abolishing the licensee-invitee distinction will leave the jury without any standards:

The abolition of the licensee-invitee distinction and the creation of a “reasonable care in all the circumstances” standard will not leave the jury without standards to guide their determination of reasonable conduct. The principles which are now to be applied are those which have always governed personal negligence. Our decision merely prevents the plaintiffs status as a licensee or invitee from being the sole determinative factor in assessing the occupier’s liability. However, the foreseeability of the visitor’s presence and the time, manner, place and surrounding circumstances of his entry remain relevant factors which will determine “in part the likelihood of injury to him, and the extent of the interest which must be sacrificed to avoid the risk of injury.”

Id. at 52 (citations omitted). Simply put, landowners would merely be required to take reasonable care to prevent foreseeable harm. See Carl S. Hawkins, Premises Liability After Repudiation of the Status Categories: Allocation of Judge and Jury Functions, 1981 Utah L.Rev. 15, 61 (1981) (concluding ordinary negligence principles have constrained jury discretion in premises liability cases in jurisdictions that abolished the classification system).

A final reason for abolishing the distinction is that our modern social mores and humanitarian values place more importance on human life than on property. Mark J. Welter, Comment, Premises Liability: A Proposal to Abrogate the Status Distinctions of “Trespasser,” “Licensee” And “Invitee” as Determinative of a Land Occupier’s Duty of Care Owed to an Entrant, 33 S.D. L.Rev. 66, 84 (1987-88). Thus,

[a] man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values.

Rowland, 70 Cal.Rptr. 97, 443 P.2d at 568.

When the reasons for the rule disappear, the rule ought to disappear. The reasons for the licensee-invitee distinction are no longer viable. Therefore, the distinction ought to be abolished. See Funk v. United States, 290 U.S. 371, 383, 54 S.Ct. 212, 216, 78 L.Ed. 369, 376 (1933) (“It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.”).

IY. Trespassers. The concurring opinion in Mounsey notes that the logic of the argument for abolishing the distinction between licensees and invitees is equally persuasive regarding trespassers. See Mounsey, 297 N.E.2d at 57-58 (Kaplan, J., concurring). The concurring opinion explains that “it is sometimes just as hard to distinguish trespassers from licensees or invitees, as to distinguish licensees from invitees; and the class of trespassers is probably just as various as either of the other classes.” Id. at 57. Although the court in Mounsey abolished the distinction between licensees and invitees but retained the common-law rule as to trespassers, the court later adopted the reasonable care standard for “physically trapped trespassers.” Pridgen v. Boston Housing Auth., 364 Mass. 696, 308 N.E.2d 467, 477 (Mass.1974).

A treatise writer explains the rationale for retaining a separate rule for trespassers:

[I]n a civilization based on private ownership, it is considered a socially desirable policy to allow a person to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 58, at 395 (5th ed.1984) [hereinafter Prosser].

One court justifies the separate rule this way:

[I]nvitees and licensees enter another’s lands under color of right, [but] a trespasser has no basis for claiming extended protection. There remains the possibility that the abandonment of the status of trespasser would place an unfair burden on a landowner who has no reason to expect a trespasser’s presence.

Poulin, 402 A.2d at 851 n. 5.

I think for the reasons expressed in Prosser and Poulin we should retain the common-law rule for parties who are trespassers. It remains to be seen whether this court might want to recognize an exception like the Massachusetts court did in Pridgen. Therefore, at this time I have no reason to disagree with the majority’s refusal to abolish the common-law rule as to trespassers.

LARSON, J., joins this special concurrence. STREIT, J., concurs specially in a separate opinion.

STREIT, J.,

concurring specially.

This case involves an innocent trespasser seriously injured by what ordinarily might be considered negligent conduct if the landowner had a duty of reasonable care. The majority imposed no duty of care upon the landowner, however, because of Alexander’s status as a trespasser. I disagree with the majority’s conclusion. Though this case is a potential illustration of the injustice of the majority’s holding, Alexander did not demonstrate he is entitled to a trial. His resistance to the Clinic’s motion for summary judgment failed to generate sufficient facts to support his assertion that, even under the California standard, the Clinic owed him a duty of care.

Despite the majority’s comfort in going with the “prevailing belief,” I believe today’s modern times present circumstances in which injustice will result from the application of our current land-entrant classification system. The horror stories alluded to by the majority concerning cases of trespassing California criminals recovering for premises injuries is misplaced and unfounded. Under the reasonable care criteria first discussed by the four justices in Sheets, such an extreme would not happen. The continuation of the status classification system is not different from the by-gone days of contributory negligence where a plaintiff was barred from recovery for the slightest negligence on his or her part. See Goetzman v. Wichern, 327 N.W.2d 742, 753-54 (Iowa 1982), superseded by statute as stated in Slager v. HWA Corp., 435 N.W.2d 349 (Iowa 1989) (In response to Goetzman, the legislature enacted a modified form of comparative fault in Iowa Code chapter 668 which retained the essential character of comparative fault limiting it only to the extent that a plaintiff whose fault is greater than the combined fault of the defendant(s) cannot recover. See 1984 Iowa Acts ch. 1293, § 3 (codified as amended at Iowa Code § 668.3 (1986))). In Goetzman, we considered both “current ‘social and economic customs’ and modern ‘conceptions of right and justice.’ ” Id. (quoting Hoffman v. Jones, 280 So.2d 431, 436 (Fla.1973)). In so doing, we concluded the adoption of comparative fault was necessary to ameliorate the harshness of the “all or nothing” approach of contributory negligence and to achieve fairness for all involved parties. Goetzman, 327 N.W.2d at 749. To use the status of the plaintiff to determine duty was wrong then and is wrong now.

The common law enforced such distinctions with land because, at that time, land was considered predominant over life. Using status as the litmus test in premises liability was perceived as necessary because landowners were not able to inspect and make safe distant property. And while these distinctions “may have provided a just disposition in England when the culture was deeply rooted to the land and tied to a heritage Of feudalism, we must consider whether the distinctions do justice in an industrialized urban society.” Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 69 (Tex.Ct.App.2000). Unlike feudal England, jurors today are more likely to be landowners and able to recognize the limitations a landowner faces in protecting his or her property. Tab J. Keener, Can the Submission of a Premises Liability Case Be Simplified? 28 Tex. Tech. L.Rev. 1161,1172 (1997).

By eliminating status as the determinative factor, we would not eliminate it altogether from our consideration of whether a particular landowner satisfied the appropriate standard of care. Rather, we should maintain the traditional classifications of licensee, invitee, and trespasser as but only one factor in a multi-step analysis of premises liability.

Moreover, abolishing this trichotomy would not leave the judge or jury without standards upon which to judge a landowner’s conduct. The principle I now advocate to apply in premises liability actions has long been the standard governing personal negligence. The trier-of-fact would have the opportunity to weigh various factors to determine the requisite duty of care under the particular circumstances of each case. Among the factors to consider are:

1) foreseeability or possibility of harm;
2) purpose for which the entrant entered the premises;
3) time, manner, and circumstances under which the entrant entered the premises;
4) use to which the premises are put or are expected to be put;
5) reasonableness of the inspection, repair, or warning;
6) opportunity and ease of repair or correction or giving of the warning; and
7) burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.

Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998). The majority is concerned with the interests of the landowner above all else. However, the analysis above does not favor the trespasser over the landowner. In fact, this analytic framework functions as a restriction on a landowner’s liability as it forces the trier-of-fact to consider foreseeability of the harm and the reason for and circumstances surrounding the trespasser’s entry. Furthermore, to characterize a general duty of ordinary care as a “one-rule-fits-all approach” minimizes the balance the duty of reasonable care strives to achieve. Such a label is a more fitting description of the majority’s approach where they could not imagine a situation in which a landowner owed a duty of care to someone unexpectedly finding herself in a hazardous situation.

The majority claims the duty of care a landowner owes a trespasser under our present system “strikes an appropriate balance between the interests of the landowner and the trespasser.” Despite references to this so-called “reasonable balance,” the majority opinion is devoid of any discussion of what consideration we may give to the trespasser under a common law rule. Perhaps this discussion is missing because the rigid classification system does not permit balancing of competing interests. It is an examination of only one interest — the interest of the landowner. It does not consider the interests of a trespasser under any circumstances. There is no room for balance in a test that merely determines a land entrant’s status as a trespasser and accordingly concludes the landowner owed the trespasser the narrow duty of care not to injure the trespasser maliciously or deliberately.

Surely the majority can imagine circumstances under which even a trespasser is owed a modicum of care. On the other hand, it is not difficult to conjure up extreme horror stories where it would be wholly unjust to impose any liability on the landowner. But in doing so, we ignore the vast gray area of cases where, despite the landowner’s negligent or even reckless conduct, we impose effectively no duty of care upon the landowner. The analysis I advocate takes into consideration a multitude of factors allowing the trier-of-faet to arrive at the most just resolution, especially where the facts are close regarding the entrant’s technical status. To satisfy the overall duty of care standard, a landowner is not required to eliminate any and all dangers on the property. Rather, the ordinary standard of care is to take steps to avoid only foreseeable, unreasonable risks. Herein lies the true balance, as the landowner is not required to do anything more than to act with reasonable care under the circumstances.

      . Compare Webb v. City & Borough of Sitka, 561 P.2d 731, 733 (Alaska 1977) (abolishing classifications), abrogated in part by statute as stated in University of Alaska v. Shanti, 835 P.2d 1225, 1228 n. 5 (Alaska 1992); Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308, 312-13 (1971) (same), abrogated in part by statute as stated in Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141, 1145 & n. 8 (Colo.1993); Pickard v. City & County of Honolulu, 51 Haw. 134, 452 P.2d 445, 446 (Haw.1969) (same); Cates v. Beauregard Elec. Coop., Inc., 328 So.2d 367, 370-71 (La.1976) (same); Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631, 634 (1976) (same); Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, 872 (1976) (same); Mariorenzi v. DiPonte, Inc., 114 R.I. 294, 333 A.2d 127, 131-32 (1975) (same), overruled in part by Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1057 (R.I.1994), with McMullan v. Butler, 346 So.2d 950, 952-53 (Ala.1977) (refusing to abandon common law distinctions); Bailey v. Pennington, 406 A.2d 44, 47-48 (Del.1979) (same); Mooney v. Robinson, 93 Idaho 676, 471 P.2d 63, 65 (1970) (same); Di Gildo v. Caponi, 18 Ohio St.2d 125, 247 N.E.2d 732, 736 (1969) (same); Tjas v. Proctor, 591 P.2d 438, 441 (Utah 1979) (same).

      . See Wood v. Camp, 284 So.2d 691, 693, 695 (Fla.1973); Poulin v. Colby College 402 A.2d 846, 851 (Me.1979); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 51-52 & n. 7 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639, 642 (1972); O’Leary v. Coenen, 251 N.W.2d 746, 751 (N.D.1977); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1, 5, 11 (1975).

      . Washington Metro. Area Transit Auth. v. Ward, 433 A.2d 1072, 1073-74 (D.C.1981); Jones v. Hansen, 254 Kan. 499, 867 P.2d 303, 310 (1994); Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51, 57 (1996); Ford v. Bd. of County Comm’rs, 118 N.M. 134, 879 P.2d 766, 770 (1994); Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882, 892 (1998); Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn.1984), overruled in part on other grounds by McIntyre v. Balentine, 833 S.W.2d 52, 54, 57 (Tenn.1992); Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436, 446 (1999); Clarke v. Beckwith, 858 P.2d 293, 296 (Wyo.1993).

      . Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146, 148 (1988); Morin v. Bell Ct. Condo. Ass’n, Inc., 223 Conn. 323, 612 A.2d 1197, 1201 (1992); Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840, 844 (Ky.1988); Little v. Bell, 719 So.2d 757, 762 (Miss.1998); Carter v. Kinney, 896 S.W.2d 926, 930 (Mo.1995); Vega v. Piedilato, 154 N.J. 496, 713 A.2d 442, 449 (1998); Tincani v. Inland Empire Zoological Soc’y, 124 Wash.2d 121, 875 P.2d 621, 624 (1994).

      . The state of Montana has on occasion been included in lists of states abolishing classifications as the basis for premises liability. While it is true the court has abandoned status-based liability rules, the Montana Supreme Court’s decision to do so was based on a state statute that "prevented [the court] from distinguishing" between classes of injured parties. See Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491, 496 (1985).


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    KENT FEEDS, INC., Appellee, v. Frank MANTHEI, Patricia Manthei, Jack Grubb and Diana Grubb, Appellants.
    No. 01-530.
    Supreme Court of Iowa.
    June 12, 2002.

      Lance D. Ehmcke of Heidman, Redmond, Fredregill, Patterson, Plaza, Dyks-tra <& Prahl, L.L.P., Sioux City, for appellants.
    Anthony J. Stoik of Klass, Stoik, Mugan, Villone, Phillips, Orzeehowski, Clausen & LaPierre, L.L.P., Sioux City, for appellee.
   NEUMAN, Justice.

This appeal concerns the enforcement of written guarantees executed by the defendants, Frank and Patricia Manthei and Jack and Diana Grubb, in favor of the plaintiff, Kent Feeds, Inc. The defendants claim that judgments on the guarantees should be set aside because (1) mandatory farm mediation has not yet occurred, and (2) this action should have been joined with a foreclosure action naming the farm corporation owned by these same defendants. Finding no merit in either of these contentions, we affirm the judgment of the district court.

The relevant facts are undisputed. The Mantheis and Grubbs are sole shareholders of a family farm corporation known as MG Family Farms, Inc. In June 1998, these defendants made and delivered written guarantees covering substantial credit extended by Kent Feeds to the corporation. At the time payment was demanded on the guarantees, the corporation’s outstanding indebtedness totaled $603,750. Pursuant to identical language in each guaranty, each couple jointly and severally guaranteed payment of one-half of the debt, or $301,875, plus interest.

Kent Feeds brought this action on the guarantees in Woodbury County while simultaneously seeking to foreclose on notes and mortgages given by MG Family Farms, Inc. on agricultural property situated in Plymouth County. The defendants moved to dismiss, claiming the mandatory mediation provisions of Iowa Code chapter 654A (1999) prevented Kent Feeds from suing on the guarantees before securing a mediation release. As an alternative ground for dismissal, they claimed the actions to foreclose and to enforce the guarantees were duplicative, requiring dismissal of this action against the defendants. The district court denied both motions.

After defendants filed their answer, Kent Feeds moved for summary judgment. Defendants responded by renewing the grounds urged in their unsuccessful motions to dismiss. Finding no defense to the unconditional guarantees, the court entered judgment against each couple for the amount prayed. This appeal followed.

I. Scope of Review.

We review the district court’s summary judgment for the correction of legal error. Carr v. Bankers Trust Co., 546 N.W.2d 901, 903 (Iowa 1996). Summary judgment is appropriate when the record, viewed in the light most favorable to the resister, reveals that no genuine issues of material fact exist and the mov-ant is entitled to judgment as a matter of law. Id.

II. Issues on Appeal.

A. Mandatory mediation. The defendants contend that the district court read the farm mediation statute too narrowly and, if properly interpreted, the statute would require Kent Feeds to engage in mediation before proceeding to judgment. Kent Feeds persuaded the district court, and urges on appeal, that the defendants’ demand for mediation is, at best, premature. We agree.

The controversy is governed by Iowa Code chapter 654A. Generally speaking, the chapter applies to creditors holding secured debt of twenty thousand dollars or more against an individual or corporate borrower engaged in farming or other agricultural pursuits. Iowa Code § 654A.4. Pertinent to this appeal, the statute’s mandatory mediation provision states:

A creditor subject to this chapter desiring to initiate a proceeding to enforce a debt against agricultural property which is real estate under chapter 654, to forfeit a contract to purchase agricultural property under chapter 656, to enforce a secured interest in agricultural property under chapter 554, or to otherwise garnish, levy on, execute on, seize, or attach agricultural property, shall file a request for mediation with the farm mediation service. The creditor shall not begin the proceeding subject to this chapter until the creditor receives a mediation release....

Id. § 654A.6(l)(a).

Applying this statute to the undisputed facts sketched above, it is apparent that Kent Feeds’ action on Mantheis’ and Grubbs’ guarantees does not fall within the types of actions requiring a mediation release before proceeding to court. First, the guarantees executed by the defendants are unsecured. Cf. id. § 654A.4 (applying statute to creditors with “secured debt”). Each guaranty merely confirms the guarantor’s obligation to “unconditionally guarantee[ ] the prompt and full payment and performance of [the] Debtor’s ... obligations.” None of the defendants’ personal or real property, agricultural or otherwise, is pledged as security for the guarantee.

Even assuming the threshold requirement of section 654A.4 had been met here, the further provisions of section 654A.6 would defeat defendants’ argument. Mediation is compelled only in those enforcement actions enumerated in the statute— mortgage foreclosure, contract forfeiture, enforcement of a secured interest in agricultural property, or attachment or execution on agricultural property. See id. § 654A.6. Here, Kent Feeds seeks only personal judgment against the defendants on their individual guarantees. Nothing in the statute prevents a creditor like Kent Feeds from obtaining personal judgment against a guarantor without first engaging in mediation or obtaining a release of that obligation.

Defendants argue strenuously that because all of their assets, real and personal, are agricultural in nature, any action against them is ultimately secured by agricultural property and, therefore, subject to mediation. To read chapter 654A more narrowly, they argue, ignores the reality of a family farming operation and undermines the statute’s beneficial purpose — “to give some relief to farmers in dire financial straits.” First Nat’l Bank v. Heimke, 407 N.W.2d 344, 346 (Iowa 1987). We disagree. In order to accept defendants’ argument, we would have to ignore unambiguous conditions that plainly limit the mediation statute’s reach. We decline to do so.

As the district court correctly noted, section 654A.6 may well be triggered if, and when, Kent Feeds attempts to enforce its judgments. But for purposes of the proceedings before us, we are convinced the district court properly interpreted and applied sections 654A.4 and .6. The guarantees at issue were not secured by “agricultural property,” real or personal, as defined by section 654A.1. Based on the record under review, statutory mediation cannot be compelled.

B. Duplicate judgments. Defendants also cite error in the court’s failure to consolidate this action on the personal guarantees with the pending farm foreclosure proceedings in Plymouth County. The court’s failure to consolidate, defendants argue, has resulted in two judgments for the same debt and, in their words, “deprive[d] the Mantheis and Grubbs of the opportunity to resolve the current dispute through farm mediation.”

Defendants’ argument rests on the rule that, when separate causes of action share common questions of law or fact, consolidation may be ordered unless a party will suffer prejudice as a result. Iowa R. Civ. P. 1.913 (formerly Iowa R. Civ. P. 185). But rulings on such requests are discretionary with the court, see id., as consolidation is merely a method of achieving judicial economy in the proper case. IBP, Inc. v. Harpole, 621 N.W.2d 410, 416 (Iowa 2001); see Sykes v. Waring, 228 Iowa 1047, 1055, 293 N.W. 14, 17 (1940); Brooks v. Paulson, 22S Iowa 1359, 1361, 291 N.W. 144, 145 (1940). To prove abuse of discretion, it must be shown that the court’s decision rested on clearly untenable reasons or grounds. Equity Control Assocs., Ltd. v. Root, 638 N.W.2d 664, 674 (Iowa 2001). Defendants have not made that showing here.

Although defendants contend “the realities of family farm ownership” dictate otherwise, it appears undisputed that Kent Feeds’ action on the guarantees stands separate and apart from its action against MG Family Farms, Inc. It is true, as Kent Feeds concedes, that both suits involve the same indebtedness. But, by its very nature, an unconditional guarantee imposes liability upon the guarantor immediately upon default of the principal debtor regardless of whether legal proceedings are pursued to enforce the principal debtor’s liability. Preferred Inv. Co. v. Westbrook, 174 N.W.2d 391, 395 (Iowa 1970). And it has long been held that suits against a principal debtor and the guarantors need not be joined, particularly where their liabilities arise from separate instruments. Griffin v. County of Grundy, 10 Iowa 226, 227 (1859); see Marvin v. Adamson, 11 Iowa 371, 373 (1860) (makers and indor-sers who are severally liable on same instrument may be joined in same action); Mix v. Fairchild, 12 Iowa 351, 351 (1861) (same).

We have already considered, and rejected, defendants’ claim that, for purposes of compelling mediation, the court should disregard the legal distinction separating the farm corporation from its individual shareholders/guarantors. That brings us to defendants’ final argument: that the trial court erroneously disregarded the “inevitability” of two judgments being rendered in Kent Feeds’ favor. Without citing authority for this proposition, they claim it was “wholly improper” for the court to permit “duplicate judgments on the same debt, one against the primary borrower, and another against the farm families.” But as the trial court wisely noted, refusal to dismiss this independent action against the guarantors does not mean Kent Feeds will be entitled to two recoveries on the same debt. In the unlikely event Kent Feeds effects recovery in excess of the sums due, defendants may move to discharge the judgment “in whole or in part, according to the circumstances.” Iowa R. Civ. P. 1.1016 (formerly Iowa R. Civ. P. 256). That scenario, however, is not before us.

We therefore affirm the judgment of the district court.

AFFIRMED.


author: STREIT, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. George R. REMER, Respondent.
    No. 02-0210.
    Supreme Court of Iowa.
    June 12, 2002.
    See also 616 N.W.2d 553.

      Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    George R. Remer, Battle Creek, pro se.
   STREIT, Justice.

An Iowa attorney admittedly engaged in a long course of self-dealing but claims he violated no rules of professional responsibility because he did not harm anyone. The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with our Grievance Commission against respondent, George Remer, alleging he violated several ethical rules and recommended we suspend Remer’s license to practice law for three years. Our review is required by Iowa Court Rule 35.10 (2002). We agree with the Commission’s findings of misconduct and its recommended sanction.

I. Background and Facts

This case comes before us on its return from a remand to the Grievance Commission. The Iowa Supreme Court Board of Professional Ethics and Conduct initiated attorney disciplinary proceedings against George Remer based on Remer’s unprofessional conduct while acting as guardian and conservator of his aunt, Bessie Jordan.

Jordan’s primary asset was a 423-acre family farm. Jordan and her sister, Lucille Remer (mother of George Remer), operated the farm as a farm partnership. Beginning in 1974, Remer ostensibly acted as the farm manager. Remer was appointed to act as conservator of Jordan’s estate from September 16, 1985, to Jordan’s death on October 9, 1992. No guardian ad litem was appointed for Jordan. In September 1987, Lucille died with the resulting property disposition leaving Jordan 68.75% outright ownership of the farm and a life interest in another 10.42%.

In March 1987, Remer formed Garden Farm Inc. in which Remer’s wife was the sole shareholder. Remer, acting as farm manager, leased Jordan’s, interest and the other fractional interests in the family farm to GFI as tenant. Remer did not seek court approval for this transaction. During the same year, Remer, as conservator, arranged for Jordan to lease two new grain bins for the farm with an option to buy. At the request of the grain bins seller, Remer obtained court approval for this transaction.

In August 1988, Remer obtained court approval for the sale of Jordan’s fee simple interest in the farm to GFI. Remer claimed the sale of the farm was in Jordan’s best interest because she did not have sufficient funds to meet her present needs. Remer obtained two appraisals of the farm property. One appraisal valued the farm at $525 per acre and the other appraisal value was $575 per acre. Signed bank statements from 1986 and 1987 showed the farm was worth $700 per acre. Remer proposed to sell Jordan’s interest in the farm for $575 per acre. Remer did not attempt to find a buyer other than GFI and he did not inform Jordan or other family members of his intention to sell and purchase Jordan’s interest in the farm. Four months after the appraisals were made, two orders approving the sale were entered without notice to Jordan or anyone acting on her behalf other than Rem-er, as the conservator/applicant.

Jordan died on October 9, 1992. Rem-er’s wife was appointed administrator of the Jordan estate and Remer as attorney for the estate. In May 1994, Gail Griffith Lovell, the current administrator of Jordan’s estate, filed a petition for the removal of Remer’s wife as administrator. In response, both Remer and his wife resigned from their respective positions. Lovell was then appointed to serve as Jordan’s administrator. Lovell filed an action to set aside the sale of Jordan’s interest in the farm to GFI asserting the sale was not in Jordan’s best interests and was the result of Remer’s self-dealing.

The district court did not set aside the sale, finding the price GFI paid for Jordan’s interest in the farm was fair and the sale was in Jordan’s best interests. The district court also concluded Remer did not breach a fiduciary duty in failing to liquidate a walnut grove on the farm prior to its sale to GFI. However, the court concluded Remer (1) improperly imposed the grain bin expense on Jordan; (2) improperly obtained farm management fees for services that did not benefit Jordan; (3) improperly transferred $6000 of Jordan’s money to her sister Lucille’s estate when no money was owed to Lucille; (4) improperly charged Jordan for accounting services necessary to remedy Remer’s poor bookkeeping practices; (5) failed to pay Jordan her share of rental income attributable to her life estate interest; (6) improperly charged Jordan’s life tenancy interest for improvements made after the sale of her fee simple interest; and (7) improperly charged Jordan for penalties incurred as a result of Remer’s failure to pay her real estate taxes on time. In the Matter of Guardianship & Conservatorship of Jordan v. Remer, 616 N.W.2d 553, 557-58 (Iowa 2000).

On appeal, we concluded the sale of Jordan’s interest in the farm to GFI was not in her best interests and should not have been approved by the district court. Id. at 561. We remanded for a determination of whether the improvements were beneficial to Jordan because, if they were beneficial, the judgment against Remer would need to be altered. Id. at 559-60. As to all of the other findings of the district court, we affirmed.

The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint against Remer alleging his conduct as Jordan’s conservator and guardian violated the rules of professional responsibility. The Grievance Commission conducted a hearing to determine whether Remer violated the rules of professional conduct. At a hearing on the matter, the Commission admitted into evidence two district court rulings in the civil case. The Commission’s findings came before us on de novo review and we vacated the Commission’s report because the Board relied only on the district court ruling as a factual basis for its findings that Remer was guilty of misconduct. The Board asserted the trial court’s findings should be accorded res judicata effect. Finding the doctrine of issue preclusion should not have been used, we remanded for a new hearing. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Remer, 617 N.W.2d 269, 272 (Iowa 2000). We now have before us the findings and recommendations of the Commission made as a result of the new hearing.

II. Scope of Review

We review the findings and recommendations of the Grievance Commission de novo. Iowa Ct. R. 35.10. We give respectful consideration to the Commission’s findings and recommendations, but are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). The Grievance Commission has the burden to prove misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 409 (Iowa 2000).

III. The Commission’s Findings

The Commission found Remer violated several rules of professional conduct in his dealings as Jordan’s guardian and conservator. See DR 1-102(A)(1). First, the Commission concluded Remer engaged in conduct that is prejudicial to the administration of justice and engaged in conduct that adversely reflects on Remer’s fitness to practice law. See DR 1-102(A)(5), (A)(6). Additionally, the Commission found Remer violated the rule providing, “a lawyer shall not accept employment if the exercise of the lawyer’s professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property or personal interests.” DR 5-101(A). Finally, the Commission concluded Remer violated the rule prohibiting a lawyer from “enter[ing] into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” DR 5-104(A).

IV.Misconduct

At the hearing before the Commission Remer admitted his self-dealing numerous times. The Commission asked Remer whether he had a financial interest in the farm and he replied “well most certainly, I had a financial interest in everything that happened on the farm. There isn’t any question about that. The question is, did it harm her?” Later, again after admitting self-dealing, Remer stated “the issue really should be the harm that happened.” Remer repeatedly claimed he caused no harm to Jordan. The Commission also found Remer failed to fully cooperate with the Ethics Board’s inquires in the matter. Overall, the Commission was concerned with Remer’s lack of remorse, failure to take responsibility for his misconduct, and general attitude in this matter. As a sanction, the Commission recommended a three-year suspension of Remer’s license to practice law.

Self-dealing itself is not prohibited. However, self-dealing by fiduciaries will be permitted only where it has been approved by the court and there is an adequate reason for the transaction. See Iowa Code § 633.155 (2001). The granting of court approval is conditioned on giving notice and an opportunity to be heard to all interested persons. Id. In the conservator-ship/guardianship situation, the notice requirement includes giving notice to the ward. We conclude Remer violated the rules of professional responsibility and Iowa Code section 633.155 by failing to give notice to Jordan.

Remer’s only defense for his self-dealing is that it did not harm Jordan. However, his assertion is not supported by the evidence. Rather, the evidence overwhelmingly proves a number of Remer’s transactions were not. in Jordan’s best interests. We begin with the sale of the family farm. As a result of the sale and the way it was structured, Jordan was entitled to less money in sale proceeds than rental income. The contract of sale released GFI from making rental payments for Jordan’s fee simple interest on December 1, 1988 or thereafter. Jordan was still entitled to rentals on her life tenancy interest. However, GFI, or Remer, never paid the annual rent amount of $2704. In sum, as a result of the sale, GFI was required to pay Jordan $2704 in rentals on December 1, 1988 and $17,666 in principal and interest payments on January 1, 1989. Had there been no sale, GFI would have been required to pay Jordan $20,584 in rentals on January 1, 1989. The contract provided an amortized interest and principal payment of only $16,167 annually.

Remer , attempted to justify the sale based on Jordan’s allegedly unstable financial condition prior to the sale of the farm. He asserted the sale was necessary to allow Jordan to pay for her ordinary expenses. However, if the sale changed Jordan’s financial situation, it did so only minimally. After the sale, Jordan was entitled to $16,167 annually rather than farm rent of over $20,000, and ownership of a 68.75% fee simple interest. The sale still left her without the ability to take care of her present expenses and left no room for any future, unanticipated expenses.

In addition to the sale of the farm, Rem-er’s actions on several other occasions did not benefit Jordan. Remer made one significant farm expenditure allegedly in her best interests. He rented/bought two new grain bins claiming Jordan needed them to store more grain. However, the evidence is clear that Jordan’s grain was already adequately stored and she was' not in need of additional storage. Moreover, the cash lease on the farm did not require the farm owners to make any capital improvements. Remer also took $6000 out of the conserva-torship and gave it to his mother, Lucille, There is no evidence to indicate Jordan owed Lucille this money. In fact, Remer admitted the number was merely an estimate, he could not remember how it was calculated, and he could not show how the amount was justified. As a result of Rem-er’s poor bookkeeping skills, he was forced to hire an accounting firm to sort out the mess he created. Remer, as farm manager, charged Jordan’s. conservatorship for the accounting fees. Remer also failed to pay Jordan’s real estate taxes on time for the years 1986 through 1988. He used Jordan’s funds to pay the penalties incurred as a result of his late filing. In short, the record amply supports the conclusion that Remer’s self-dealing harmed Jordan economically.

Even if we found Jordan was not harmed by Remer’s self-dealing, it would not change the outcome here. Violation of the rules of professional conduct prohibiting a lawyer* from entering into a business transaction with a client if they have differing interests may be established without showing the client suffered economic or other disadvantage from the misconduct. See Comm, on Prof'l Ethics & Conduct v. Postma, 430 N.W.2d 387, 392 (Iowa 1988) (citing Comm, on Prof'l Ethics & Conduct v. Baker, 269 N.W.2d 463, 466 (Iowa 1978)). See generally Comm. on Prof'l Ethics & Conduct v. Oehler, 350 N.W.2d 195, 198-99 (Iowa 1984); Matter of Randall, 640 F.2d 898, 905 (8th Cir.1981). However, the violation is aggravated when economic disadvantage is shown. Baker, 269 N.W.2d at 466.

We now must determine the appropriate sanction for Remer’s ethical violations. We consider a lawyer’s prior attorney disciplinary history as an aggravating circumstance. In 1987, Remer was publicly reprimanded for failing to timely file Iowa and federal income tax returns for three separate years. See DR 1 — 102(A)(1), (3), and (6) (a lawyer shall not: violate a disciplinary rule; engage in illegal conduct involving moral turpitude; and engage in any other conduct that adversely reflects on the fitness to practice law); EC 1-5; EC 9-6. He is currently under suspension for failure to comply with continuing legal education and client security requirements. We also take into consideration the fact Remer did not respond to interrogatories in this case. As a result, Remer was prohibited from calling any witnesses at the hearing before the Commission, other than himself.

We also consider the presence of any mitigating factors in determining the appropriate sanction. The evidence admitted into the record indicates Remer suffered a stroke on August 15, 1995. Remer testified the stroke has affected his ability to remember certain things and overall has compromised his ability to practice law. Remer admitted his doctor believes Remer is no longer competent to practice law. His doctor went so far as to recommend that Remer discontinue his practice. Remer asserts his compromised memory is the reason he did not respond to the Board’s requests for interrogatories. Though we are highly concerned about Remer’s physical and mental abilities to continue the practice of law, the stroke itself does not excuse any of Remer’s misconduct.

Remer’s egregious pattern of self-dealing was motivated purely by his desire for personal gain. In seeking his own financial advantage, Remer failed to seek court approval for most of the transactions he completed with the conservatorship. Furthermore, he did not fully disclose to Jordan the competing interests between Rem-er’s own personal financial stake in the farm and his fiduciary duties as Jordan’s conservator. His conduct reflects self-dealing, dishonesty, total willingness to compromise the interests of his client, and absolutely no remorse. See In re Irby, 735 So.2d 624, 626 (La.1999). Remer’s failure to acknowledge any misconduct reflects upon his inability to conform his conduct to our rules of professional responsibility for lawyers. Moreover, his misconduct has made wholly vulnerable the relationship between a lawyer and the client. Such misconduct warrants a suspension to serve as a penalty to Remer and as a deterrent to others. A suspension will also serve to maintain the public’s confidence that we will maintain the ethics of this profession. See State v. Johnson, 149 Iowa 462, 468, 128 N.W. 837, 839 (1910) (“The relation between an attorney and his client must necessarily be one of great confidence, and an attorney who knowingly abuses the trust and confidence placed in him by his client is unfit for the profession and unworthy of a place therein.”).

We therefore suspend Remer’s license with no possibility for reinstatement for a period of three years from the date of the filing of this opinion. Upon application for reinstatement, Remer shall have the burden to prove he has not practiced law during the period of suspension and that he meets the requirements of Iowa Court Rule 35.13. Remer also must certify both his medical and physical conditions are adequate to practice law. Any hearing on application for reinstatement shall be at least sixty days after the filing of such application. See Iowa Ct. R. 35.13(l)(a). The costs of this action are assessed against the respondent in accordance with Iowa Court Rule 35.25.

LICENSE SUSPENDED.


text:
    WATERLOO/CEDAR FALLS COURIER, Appellant, v. HAWKEYE COMMUNITY COLLEGE, Willie Culpepper, Malcolm Mcgregor, Ruth Niemann, Luane Lorenzen, Mark Birdnow, Leroy L. Hoff, Harold Brock, Loren Steimel, and Ervin A. Dennis, Members of the Board of Trustees, Appellees. Saul Shapiro and Nancy Raffensperger-Newhoff, Plaintiffs, v. Iowa District Court for Black Hawk County, Defendant.
    No. 00-1585.
    Supreme Court of Iowa.
    June 12, 2002.

      David H. Correll of Correll, Sheerer, Benson, Engels, Galles & Demro, PLC, Cedar Falls, for appellant.

      Michael A. Giudicessi and William J. Hunnicutt of Faegre & Benson LLP, Des Moines, for appellant and certiorari plaintiffs.
    Matthew G. Novak and Thad J. Collins of Pickens, Barnes & Abernathy, Cedar Rapids, for appellees.
   STREIT, Justice.

A local community college wants newspaper editors to tell who ratted them out. The editors stand firm and would be solaced by the words of a past newsperson:

If your editorial writer ... “takes the fence,” thinking of the dangers of antagonizing somebody or other, including the publisher’s wife, he can’t write anything worth reading and it is not worth while hiring him

H.L. Mencken, A Gang of Pecksniffs 199 (Theo Lippman Jr. ed., Arlington House, 1975).

The Waterloo/Cedar Falls Courier filed a lawsuit against Hawkeye Community College for alleged violations of the Open Meetings Act. After the Courier filed suit, two of its editors spoke with unidentified people present at the meetings in which the Board allegedly violated the open meetings law. Now, the College wants to know who talked and argues the editors must reveal their sources. Because we find the sought-after material is not necessary for the College’s defense and the material could be obtained from other non-privileged sources, we reverse the district court’s order for an in camera inspection of the information.

I. Background and Facts

This is an interlocutory appeal and a petition for writ of certiorari arising from an Open Meetings Act case filed by Waterloo/Cedar Falls Courier against Hawkeye Community College and individually named members of the Board of Trustees. The Courier alleged the Board conducted an improper closed-session meeting in violation of Iowa Code chapter 21 (1999). In particular, the Courier argues the Board violated the Open Meetings Act by conducting a closed-session meeting regarding the competency of the president of the College. See Iowa Code § 21.5(l)(i). The Courier further alleged the Board was required to comply with the Open Meetings Act, contending the closed meeting was not necessary to prevent needless and irreparable injury to the president’s reputation. See id. The Board denied these allegations claiming it was not required to comply with the Open Meetings Act because it conducted a closed-session meeting for the purpose of discussing strategy in matters relating to employment conditions of a College employee who is not covered by a collective bargaining agreement. See id. §§ 21.9, 20.9.

On two separate occasions, the Board held its regularly scheduled meetings. At one of these meetings, the Board chairman made a motion to change the meeting to a closed session under Iowa Code section 21.9, rather than under Iowa Code section 20.17(3) as had been announced in the agenda. The second meeting was also closed. These two closed sessions led to the Board’s firing the president of the College. The Courier filed suit against the Board claiming the College failed to comply with the Open Meetings Act. After filing suit, two of the Courier’s editors talked with two people who were present at the closed sessions. The editors promised the informants they would not reveal their identities or the content of the discussions.

The Board began discovery by deposing the editors. During the depositions, both editors refused to identify the people to whom they spoke. The editors refused to reveal the information they received from the informants or release their interview notes to the Board. The Board moved to compel the editors to reveal the informants’ identities, the information disclosed by the informants, and the journalists’ notes from the interviews. The district court entered an order compelling the editors to reveal to the district court, in camera, all of the information the editors received in return for their promise of confidentiality, “including names of the persons and statements by those persons.” In denying the Courier’s motion to reconsider the district court stated, the defendants

have to show that the intended evidence is relevant, but they have no way of obtaining the evidence. That is why the court chose the most conservative method available to it by ordering the evidence to be submitted to the court for an in camera hearing.

The Courier filed an application for an interlocutory appeal with this court. The individual editors then filed a petition for writ of certiorari in the supreme court. We granted both and consolidated the proceedings for purposes of appeal.

II. Scope of Review

Even though constitutional issues are involved, our review of the trial court’s ruling on the discovery request is for abuse of discretion. Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 796 (Iowa 2001). A reversal of a discovery ruling is warranted when the grounds underlying a district court order are clearly unreasonable or untenable. Id. (citing State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). We will also reverse upon a finding the trial court erroneously interpreted a discovery rule. Id. (citing Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)). “[A] court has no discretion to issue a discovery order that lacks factual support or is in contravention of governing constitutional or statutory provisions.” Id.

On appeal, we also consider the editors’ original petition for writ of certio-rari. A writ of certiorari lies where the trial court acted illegally or otherwise exceeded its jurisdiction. State Pub. Defender v. Iowa Dist. Ct, 633 N.W.2d 280, 282 (Iowa 2001). “ ‘Illegality exists when the court’s findings lack substantial evidentia-ry support, or when the court has not properly applied the law.’ ” Id. (quoting Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998)). Therefore, our review of the district court’s actions is for correction of errors of law. Id.

III. The Merits

The Courier and its editors argue the College faded to establish the criteria articulated in Lamberto v. Bown, 326 N.W.2d 305 (Iowa 1982). In particular, the Courier contends the College failed to prove: (1) it had a compelling need for the information; and (2) it exhausted alternative, non-privileged sources for the information. The Courier also asserts the district court effectively concluded the Courier waived its constitutionally-based reporter’s privilege through its initiation of the open meetings action against the College. The district court ordered an in camera inspection to determine the relevancy of the evidence— “a procedure ‘borne of a paradox — the need to see evidence in order to determine whether the evidence can be seen.’ ” Lamberto, 326 N.W.2d at 308 (quoting In re Farber, 78 N.J. 259, 394 A.2d 330, 337 (N.J.1978), cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978)). We must determine whether the trial court based its in camera discovery order upon unreasonable grounds. Before we turn to this central issue, we briefly address two arguments raised by the College. The College first asserts the reporter’s privilege does not apply in this ease. It then argues if we find the privilege applies, the College is still entitled to the material as the Courier waived the editors’ privilege.

A. Applicability of the Reporter’s Privilege

In the trial court’s order compelling in camera inspection, the court ruled on whether the Courier was eligible for the shield afforded by the reporter’s privilege. The court stated, “This record clearly supports the fact that the plaintiff is a covered party and is entitled to the shield.... ” The College in its appellate brief argued,

it remains entirely unclear whether these editors were acting as part of the “news gathering process” or simply attempting to gather discovery for the pending lawsuit.... If the district court committed any error at all in resolving this issue it was assuming the Courier established the threshold showing for the privilege.

The College has not at any point specifically challenged the trial court’s finding that the editors and the information they hold qualify for protection under the reporter’s privilege. Though the district court did not specifically rule on the issue of whether the editors were engaged in the news-gathering process, we assume the facts necessary to uphold the court’s ruling. EnviroGas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency, 641 N.W.2d 776, 781 (Iowa 2002). We must determine whether there is substantial evidence upon which the trial court based its ruling. Id.

In adopting the Iowa reporter’s privilege, we stated that for a journalist to gain protection under this shield, a determination must be made “whether that party falls within the class of persons qualifying for the privilege.” Lamberto, 326 N.W.2d at 309. The party must have been engaged in the newsgathering process. Bell v. City of Des Moines, 412 N.W.2d 585, 588 (Iowa 1987). Once a journalist satisfies this preliminary showing, the information sought is “presumptively privileged.” Id. The burden then shifts to the party seeking the information to rebut the presumption. Id.

The editors in this case are entitled to the reporter’s privilege as they are journalists. See Lamberto, 326 N.W.2d at 309 (there is a presumption the privilege applies if the resisting party is a member of the protected class). The editors are employees of the Courier newspaper. One of the Courier’s reporters tried to attend the Board’s meetings, but was excluded after the chairman moved for a closed session. The editors were investigating the closed sessions and their research resulted in at least one published newspaper article. The editors have asserted and the evidence shows the editors were engaged in the newsgathering process when they talked to the informants. The College has done nothing more than merely suggest the editors took their hats off as reporters to act instead as litigants. In the absence of anything more than a mere assertion the editors acted in dual roles — one as litigant and the other as journalist — we cannot conclude .the privilege does not apply. We conclude there is substantial evidence to support the district court’s conclusion the editors, are entitled to invoke the reporter’s privilege. The College next asserts if we conclude the privilege applies, the Courier has waived it by filing suit against the College. We now turn to this issue.

B. Waiver of Reporter’s Privilege

The College alternatively argues if the privilege applies, the Courier newspaper waived their reporters’ privilege by filing the open meetings action. The College is correct to assert a party may waive the reporter’s privilege. However, only the holder of the privilege may waive it. In the case before us the Courier, not the editors, filed the open meetings action. The editors are not a party to this case. The Courier is not the holder of the reporters’ privilege, but the privilege is strictly held by the editors and is subject to waiver only by their actions. See United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir.1980); Los Angeles Mem’l Coliseum, Comm. v. Nat’l Football League, 89 F.R.D. 489, 494 (C.D.Cal.1981); Diaz v. Eighth Judicial Dist. Ct. ex rel. County of Clark, 993 P.2d 50, 57 (Nev.2000); State v. Ventura, 101 Ohio Misc.2d 15, 20, 720 N.E.2d 1024, 1028 (Ohio Com.Pl.1999). As such, the Courier did not waive the editors’ privilege by filing suit against the College.

Even if we concluded the editors were parties to this action, their mere status as litigants is not sufficient to constitute a waiver of the privilege. Rather, a party must do something to waive the privilege. For example, a waiver of the privilege has most often been found where the plaintiff put the sought-after information into issue in the litigation and then attempted to prevent its disclosure by invoking the shield of privilege. See, e.g., In re Marriage of Hutchinson, 588 N.W.2d 442, 447 (Iowa 1999) (physician-patient privilege yields where the patient has brought mental or physical condition of patient into issue as basis for claim or as a defense); Squealer Feeds v. Pickering, 530 N.W.2d 678, 684 (Iowa 1995); State v. Bastedo, 253 Iowa 103, 112, 111 N.W.2d 255, 260 (1961) (waiver of attorney-client privilege where client sues attorney for breach of duty, fraud, or other improper or unprofessional conduct). In civil cases “where a reporter asserting the privilege is a party to the lawsuit and his action, motivations or thought processes are integral elements of the claims, disclosure is often compelled.” Lamberto, 326 N.W.2d at 307. The privilege may also be waived if the holder voluntarily discloses or consents to disclosure of any significant part of the matter or communication. Squealer Feeds, 530 N.W.2d at 684.

None of the above situations apply in this case. The editors are not parties to this action and their talking to people at the meetings is not an issue in the litigation concerning the meetings. In fact, to ensure their actions would not constitute a waiver, the Courier and its editors have emphasized the material obtained from the informants will not be used in litigation. The College has not articulated that in order to determine what happened at the closed-session meetings it is imperative that it know who the informants are. Rather, who spoke with the editors and what each said is not an issue in the underlying open meetings action. Because we have concluded the reporter’s privilege applies in this case and has not been waived, we now turn to the final issue. We must determine whether the College has met its burden to subordinate the editors’ First Amendment privilege to the interests in obtaining evidence.

C. In Camera Inspection

In Iowa, we first recognized a reporter’s privilege in Winegard v. Oxberger, 258 N.W.2d 847 (Iowa), cert. denied, 436 U.S. 905, 98 S.Ct. 2234, 56 L.Ed.2d 402 (1978), and in Lamberto, 326 N.W.2d at 305. The privilege protects confidential sources, unpublished information, and reporter’s notes. See Iowa Const, art. I, § 7; Winegard, 258 N.W.2d at 852; Lamberto, 326 N.W.2d at 310. Whether the privilege has been established “turns simply on whether the resisting party is a member of the protected class engaged in the newsgathering process.” Bell, 412 N.W.2d at 588 (citing Lamberto, 326 N.W.2d at 309). However, this is a qualified, not absolute, privilege as it may give way in certain circumstances. Once the presumptive privilege is established, the court may order a party to reveal the sought-after material only if the requesting party shows by a preponderance of the evidence: (1) there is a probability or likelihood the evidence is necessary; and (2) the evidence cannot be obtained from any less intrusive source. Id. at 587. If the court is satisfied these elements have been met, it may order an in,camera inspection of the material. As a result of the inspection, if .the court concludes the material is necessary to the claim or defense and it is probably admissible at trial, the requesting party may use the material. Id. (citation omitted).

Applying these principles, the district court found “the [Courier] is a covered party and is entitled to the shield.... ” The court then ordered the in camera inspection of the material so it could “determine whether or not it is relevant to this case and whether it should be disclosed regardless of the journalistic shield.” The Courier argues the court, despite outlining the Lamberto standards, disregarded them when it concluded

there’s no way the defendants can show the probability of or likelihood that the evidence is necessary because they don’t know what it is.... As for the second part, can it be obtained by any other source, the plaintiffs attorneys have made it clear that they not only won’t reveal the evidence, they do not intend to call the people involved and defendant has no other way of obtaining this evidence.

In order to overcome the presumptive privilege, the district court must determine whether the party seeking the information has shown by a preponderance of the evidence the material is necessary and it is not available from other sources. Lamberto, 326 N.W.2d at 309. If the party requesting the material has not made this threshold showing, the district court errs if it orders a reporter to reveal the information so the court can determine if it is necessary. See id. at 305. Given the facts before us, we conclude the district court erred when it ordered the in camera inspection so it could determine whether the Lamberto requirements were satisfied.

In the instant case, two closed-session meetings held by the College’s Board of Trustees resulted in the eventual forced resignation of the College’s president. At each of these disputed meetings, only eight trustees were present, in addition to a number of other College employees. All eight of the trustees present at the meetings are named defendants in the underlying action. The editors spoke to two informants, both of whom were present at the two closed-session meetings. Each informant was privy to the content of the discussions at those meetings. The informants spoke to the editors with the expectation the information provided would be held in confidence. In discovery, the College deposed only two people — the editors — who could comment on the disputed material. The College engaged in no further discovery on this issue. The Cornier stated it will not call either of the informants as witnesses because it did not rely on any of their information as a basis for the open meetings action.

Based on these facts, we conclude the material the College seeks is not necessary or critical to defense of the open meetings action. The Courier did not use any of the information the editors obtained from the informants as a basis for the lawsuit. Moreover, the Courier does not plan to call the informants as witnesses at trial. The only material relevant to the underlying claim goes to whether the College is a governmental body subject to the requirements of the Open Meetings Act, whether it conducted closed-session meetings, and, if so, whether it complied with the open meetings law. Given these facts, it is impossible to conclude the sought-after material “go[es] to the heart of the litigant’s case.” Lamberto, 326 N.W.2d at 308 (quoting Carey v. Hume, 492 F.2d 631, 636 (D.C.Cir.), cert. denied, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974)). It appears the only reason the College seeks this information is to find out who told on them. If this is the case, we are left also to assume the College would attempt to use this information for the purposes of impeachment. Although a legitimate use, this is an insufficient reason for compelling disclosure of the sought-after material. See Lamberto, 326 N.W.2d at 309-10 (citing United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039, 1060 (1974)); Rancho Publ’ns v. Superior Ct., 68 Cal.App.4th 1538, 1551, 81 Cal.Rptr.2d 274, 282 (Cal.Ct.App.1999). Because the College has failed to “demonstrate the compelling need for the evidence,” an in camera inspection of the material is not appropriate. Lamberto, 326 N.W.2d at 310. Under these circumstances, we will not force the editors to disgorge this sought-after information. See id.

We also conclude the College did. not prove by a preponderance of the evidence the material it seeks is not available by other less intrusive and non-privileged sources. Mere failure to obtain the material from the editors does not satisfy the Lamberto requirement that the College must have exhausted all other non-privileged sources for the same information. Because each trustee present at the closed-session meetings is named - as a defendant in the action, the College is in the best position to know exactly what transpired at the Board’s meetings. The College has within its control the minutes of the closed sessions which should reveal the substance of the meetings. Moreover, the College knows precisely which trustees and other employees were present at the meetings. There remain for the College many unexplored avenues of discovery for the sought-after material. The College has not attempted to find out what was said and what occurred at the meetings from anyone other than the Courier’s editors. The College must exhaust these resources before going -after the editors’ privileged information. Because the College did not prove the only practical access to the material is through the editors, we will not compel the editors to reveal this information.

IV. Conclusion

We conclude the grounds the trial court relied upon in ordering the in camera inspection were unreasonable. The College did not prove the disputed material is critical to its defense and is unavailable from any other non-privileged source. As such, it failed to meet the Lamberto requirements necessary to force the editors to reveal their informants. Accordingly, we vacate the trial court’s order for an in camera inspection. We also sustain the editors’ petition for writ of certiorari and remand with directions to enter a protective order preventing the College from obtaining the names of the informants and the information they disclosed to the Courier’s editors. The matter of attorney fees abides in the ultimate result of the open meetings action. See Iowa Code § 21.6(3).

REVERSED AND REMANDED; WRIT SUSTAINED.