Exceptional is Not So Uncommon: A Review of Duty of Care for Negligence Findings Post-Thompson v. Kaczinski
The Iowa Supreme Court stated in Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009) (hereinafter Thompson), that “the general duty of reasonable care [for negligence] will apply in most cases, and thus courts can rely directly on § 6 and need not refer to duty on a case-by-case basis.” 774 N.W.2d at 834-835 (citing Restatement (Third) of Torts § 7 cmt. a, (2010)).
However, the Iowa Supreme Court also noted, “in exceptional cases, the general duty to exercise reasonable care can be displaced or modified.” Id. at 835. The court further explained that “an exceptional case is one in which ‘an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases’.” Id. As detailed below, the ‘exceptional cases’ applying a displaced or modified duty of care are more common than the Iowa Supreme Court anticipated in Thompson.
In Thompson, the Iowa Supreme Court applied the Restatement (Third) of Torts to limit court determinations of a lack of duty of care to situations where an articulated policy or principle justified such a determination. Id. Importantly, on several occasions since the Thompson decision, Iowa’s courts have determined public policies or well recognized legal principals have mandated imposition of only a limited duty of care.
For instance, in a case decided by the Iowa Supreme Court on the same day as Thompson, the court determined that established legal principals required application of a limited duty of care rather than the general duty of reasonable care. See Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 696 (Iowa 2009) (hereinafter Van Fossen). In Van Fossen, an independent contractor brought a wrongful death action against the owners of the location where he worked. The independent contractor alleged his regular exposure to asbestos and the contact on his clothes led to his wife’s death after contracting mesothelioma. See 777 N.W.2d at 691-693. In assessing what duty the property owner owed, the Iowa Supreme Court concluded:
We conclude this case presents an instance in which the general duty to exercise reasonable care is appropriately modified. One who employs an independent contractor owes no general duty of reasonable care to a member of the household of an employee of the independent contractor. Instead of the broad general duty of due care described in Restatement (Third) section 7, employers of independent contractors owe only the limited duty prescribed in Restatement (Second) section 413 . . . . Id. at 696.
Likewise in McCormick v. Nikkel & Associates, Inc., 819 N.W.2d 368 (Iowa 2012), the court faced a similar situation to that of Van Fossen. Importantly, the court cites Van Fossen and reiterates the fact that “employers of independent contractors do not owe a general duty of due care…but owe only a limited duty…[and] one who employs an independent contractor is not liable unless he retains control of the contractor.” Id. at 371. Thus, once again, the court recognized a limited duty of care was appropriate.
Similarly, in Feld v. Borkowski, the court dealt with the issue of a duty being owed in contact sports (slow pitch softball). 790 N.W.2d 72 (2010). The court discussed how some activities, such as contact sports call for a less stringent duty of care. See id. at 77-79. The court then noted, “If the risk of injury is a part of the sport, then the participants must only refrain from reckless or intentional conduct causing injury.” Id. at 78. Therefore, once again, the Iowa Supreme Court imposed a modified duty of care as opposed to a general duty of care.
In Pitts v. Farm Bureau Life Ins. Co., the court addresses the duty owed by an insurance agent to an intended beneficiary. Importantly, the Court began its analysis by stating, “when duty is based on agency principles and involves economic loss, the duty analysis adopted by this court in [Thompson], based on Restatement (Third) of Torts: Liability for Physical and Emotional Harm, is not dispositive.” Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 98-99 (Iowa 2012), reh’g denied (Aug. 10, 2012). The Iowa Supreme Court next concluded that an insurance agent owed only the following limited duty:
an insurance agent’s ‘general duty is the duty to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured. This duty could only be expanded ‘when the agent holds himself out as an insurance specialist, consultant or counselor and is receiving compensation for consultation and advice apart from premiums paid by the insured.’ Id. at 99 (citations omitted).
Consequently, and once again, the Iowa Supreme Court applied a limited duty of care in lieu of a general duty of reasonable care under the circumstances.
In sum, in Thompson, the Iowa Supreme Court made a broad statement that the general duty of reasonable care will apply in “most cases”. However, recent case law demonstrates that it is not unusual for a limited or modified duty of care to apply rather than the general duty of reasonable care. Otherwise stated, the “exceptional cases” wherein a limited or modified duty of care is applied are more common than the Thompson court anticipated.