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IN THE COURT OF APPEALS OF IOWA
No. 4-589 / 04-0490
Filed September 9, 2004
LINDA MUNZ and JOHN WINKERS,
Plaintiffs-Appellants,
vs.
PENINSULA GAMING CO., L.L.C., d/b/a DIAMOND JOE CASINO,
Defendant-Appellee.
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Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Plaintiffs appeal the district court’s grant of summary judgment to defendant in this tort action. AFFIRMED.
Eric Loney of Walker, Knopf & Billingsley, West Des Moines, for appellant.
Guy Cook and Nicholas Mauro of Grefe & Sidney, P.L.C., Des Moines, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
MAHAN, P.J.
I. Background Facts & Proceedings
On or about December 31, 2001, John Winkers and Linda Munz drove to the Diamond Jo Casino. They parked in a parking lot owned by the City of Dubuque. At this same time, Jeffrey Howell, a parking valet for the casino, noticed a man had fallen out of his wheelchair in the parking lot.[1] Howell attempted to lift the man, who weighed about 200 pounds, but could not do so. Howell asked Winkers and Munz, who were walking by at this time, to help him, and they agreed. After several attempts, Howell and Winkers were able to lift the man, while Munz held the wheelchair steady. Winkers and Munz then proceeded into the casino, where they spent several hours gambling.
On July 15, 2002, Winkers and Munz filed suit against Peninsula Gaming Company, doing business as Diamond Jo Casino, alleging they were both injured while helping the man into his wheelchair. They claimed the casino was negligent in (1) failing to provide safe premises; (2) failing to properly train employees on proper procedures when dealing with a fallen or intoxicated patron; (3) failing to follow proper procedure in asking plaintiffs for assistance; and (4) failing to report the incident in a timely fashion. They also raised claims based on theories of respondeat superior and dram shop liability.
The district court granted the casino’s motion for summary judgment. The court found there was no basis for a premises liability claim because the casino did not own the parking lot where the incident occurred. As to the other alleged grounds of negligence, the court found the casino did not owe any special duty to plaintiffs which would serve as the basis for a tort claim. Because Howell’s conduct was not actionable, the court concluded the doctrine of respondeat superior did not apply. On the dram shop claim, the court determined plaintiffs had failed to present any evidence that the unknown man had been served drinks at the casino. Plaintiffs now appeal.
II. Standard of Review
We review a district court’s ruling on a motion for summary judgment for correction of errors of law. Financial Mktg. Servs., Inc. v. Hawkeye Bank & Trust, 588 N.W.2d 450, 455 (Iowa 1999). Summary judgment will be upheld when the moving party shows there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. See Iowa R. Civ. P. 1.981(3). In reviewing a motion for summary judgment, we consider the evidence in a light most favorable to the party opposing the motion. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).
III. Negligence
The elements of a negligence claim include the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages. Hartig v. Francois, 562 N.W.2d 427, 429 (Iowa 1997). Thus, without a duty, there can be no negligence. Id.
The question of whether the parties’ relationship gives rise to a duty is a matter of law for the court. Shaw v. Soo Line R.R., 463 N.W.2d 51, 53 (Iowa 1990). We look to legislative enactments, prior judicial decisions, and general legal principles to determine whether there is a duty. Engstrom v. State, 461 N.W.2d 309, 315 (Iowa 1990). We also consider the Restatement (Second) of Torts when considering whether a duty arises under a certain set of circumstances. Van Essen v. McCormick Enters., 599 N.W.2d 716, 718-19 (Iowa 1999) (citing Shaw, 463 N.W.2d at 55). In the final analysis, however, “the existence of a duty is a policy decision, based on the relevant circumstances, that the law should protect a particular person from a particular type of harm.” Id. at 719.
On appeal, plaintiffs allege they became temporary employees of the casino under the emergency employment doctrine. See Hitchcock v. Arctic Creamery Co., 170 Iowa 352, 369-70, 150 N.W. 727, 733 (1915) (noting that when an employee, with the knowledge of the employer, seeks assistance in an emergency, the one assisting may be entitled to the same protection as other employees). Plaintiffs failed to preserve error on this argument because they did not raise it before the district court. We do not consider issues raised for the first time on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
Plaintiffs have not asserted any other theory which would give rise to a duty in this case. The district court concluded:
In addition to the absence of a relationship that will support a duty, public policy doesn’t favor the plaintiffs. The only act of Mr. Howell which the plaintiffs can identify as being blameworthy is the act of asking them to assist him in helping the fallen man. Iowa has not yet reached the point where the act of asking others to help the less fortunate is actionable.
We agree with the district court’s conclusion. Plaintiffs voluntarily agreed to assist Howell. We note another passage in Hitchcock, 170 Iowa at 369, 150 N.W. at 732, which states, “[I]f a person as a mere volunteer attempts to assist the servant of another the master of the servant owes the volunteer no duty . . . .”
We conclude plaintiffs have failed to show the first element of a negligence claim, the existence of a duty. We conclude the district court properly granted summary judgment to the defendant.
AFFIRMED.
[1] The identity of this man remains unknown. No one saw him fall, but he was lying near railroad tracks, and the parties agree that probably the wheels of his wheelchair got stuck in the tracks, causing the wheelchair to tip over.