Hanson v. Housby Mack, Inc.

IN THE COURT OF APPEALS OF IOWA

No. 20-1254 Filed June 16, 2021

KIMBERLY HANSON, Plaintiff-Appellant,

vs.

HOUSBY MACK, INC., Defendant-Appellee. _________________________________

HOUSBY MACK, INC., Third-Party Plaintiff,

vs.

RANDY PAUL HOFER, Third-Party Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.

Kimberly Hanson appeals a summary judgment ruling granted in favor of

Housby Mack, Inc. AFFIRMED.

Billy J. Mallory of Brick Gentry, P.C., West Des Moines, for appellant.

J. Scott Bardole of Andersen & Associates, West Des Moines, for appellee.

Considered by Doyle, P.J., and Mullins and May, JJ.  2

MULLINS, Judge.

Kimberly Hanson appeals a summary judgment ruling granted in favor of

Housby Mack, Inc. Hanson argues the district court erred in finding no genuine

issue of material fact existed regarding the existence of special circumstances.

Housby Mack is a Mack and Isuzu truck dealership that also sells parts and

performs service, among other maintenance and sales operations. The Housby

Mack campus in Polk County is comprised of five buildings and parking lots.

Approximately three-quarters of the campus is enclosed in gates, which remain

open and unlocked during the operating hours of 7:00 a.m. to midnight. On

November 8, 2018, Randy Hofer, an unrelated third party, entered the Housby

Mack premises at approximately 9:46 a.m. Hofer took a 2004 cement mixer

without permission and left the Housby Mack property. Hofer drove the cement

mixer erratically and eventually drove into Hanson’s home.1

Hanson filed suit against Housby Mack and Hofer, alleging Housby Mack

was negligent in leaving the keys to the cement mixer in the vehicle’s cab and

claimed intentional infliction of emotional distress. Hanson initially argued Housby

Mack was negligent per se because leaving keys inside a vehicle is a violation of

a Des Moines ordinance. See Des Moines, Iowa, Mun. Code 114-362(a) (2018).

Housby Mack filed a motion for summary judgment in August 2020. It

argued the Des Moines ordinance did not apply because the Housby Mack campus

is located in Saylor Township and Polk County, making the Des Moines ordinance

inapplicable. At the hearing on the motion, Hanson also argued special

1 Hofer was found guilty of operating a motor vehicle without an owner’s consent in March 2019. He is not a party to this appeal.  3

circumstances existed to indicate Housby Mack breached a duty and was

negligent, in that another vehicle had been reported as stolen from the Housby

Mack campus and other minor thefts had occurred. Housby Mack provided

testimony that the vehicle that had been reported stolen was due to a mistake in

paperwork, and that the vehicle had actually been purchased. It also argued the

minor thefts from the property, including batteries or scrap metal, did not mean the

campus was located in a high crime area. Housby Mack argued no special

circumstances existed.

The district court granted the motion for summary judgment. It stated

Hanson provided no evidence to refute the inapplicability of the Des Moines

ordinance. It also found no special circumstances existed giving rise to Housby

Mack’s liability. Hanson appeals, arguing that special circumstances exist.

“We review a district court’s grant of summary judgment for correction of

errors at law.” Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019). We examine

the record to determine “whether a genuine issue of material fact exists and

whether the district court correctly applied the law.” Id. (quoting Pillsbury Co. v.

Wells Dairy, Inc., 752 N.W.2d 430, 434 (Iowa 2008)). “We review the summary

judgment record in a light most favorable to the nonmoving party” and provide “the

nonmoving party every legitimate inference that can be reasonably deduced from

the record.” Id. (quoting Phillips v. Covenant Clinic, 625 N.W.2d 714, 717–18 (Iowa

2001)). “Even if the facts are undisputed, summary judgment is not proper if

reasonable minds could draw different inferences from them and thereby reach

different conclusions.” Id. (quoting Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d

540, 544–45 (Iowa 2018)).  4

Hanson’s claim invokes the special circumstances described in State Farm

Mutual Automobile Insurance Co. v. Grain Belt Breweries, Inc., 245 N.W.2d 186,

189–90 (Minn. 1976). The Minnesota supreme court summarized important facts,

including, but not limited to, the fact that a beer truck was left in an area of bars

and a liquor store, the beer truck driver knew the area had a history of high levels

of alcohol consumption, and the high crime rate of the community. Id. at 189.

Based on these facts, the court found special circumstances existed to allow a jury

to find leaving the keys in the unlocked cab of the beer truck was negligent. Id.

Our supreme court was asked to address the issue of whether a person

“who leaves the key in the ignition of an unlocked automobile, or in plain view

inside the automobile, [can] be held liable for damages to a third party proximately

caused by the negligent operation of the automobile by a person who has stolen

it.” Roadway Express, Inc. v. Piekenbrock, 306 N.W.2d 784, 784 (Iowa 1981). In

Piekenbrock, the named defendant left keys in the ignition of a car, which was

stolen by a third party who crashed the car. Id. at 784–85. No statutory or

municipal duty to remove keys from the ignition applied. Id. at 785. The court

examined cases from other jurisdictions, examining similar fact patterns. Id. at

785–86. The court declined to answer the question, instead finding that even if it

assumed leaving the keys in the ignition was negligent, the third party’s conduct

stealing the car “was an intervening or superseding cause, which broke the chain

of causation and liability.” Id. at 786.

Our supreme court was again tasked with considering special

circumstances in Smith v. Shaffer, 395 N.W.2d 853 (Iowa 1986). In Smith, two

teenage boys stole a car parked outside a tavern, where they had been drinking.  5

Id. at 854. They crashed into another vehicle, and the drivers of both vehicles

died. Id. The negligence suit against the owner of the stolen car rested on the fact

that the keys had been left in the ignition and the theft “was more likely to occur

than not” and “that injury to persons and property was a probable result of the

danger of the car being stolen.” Id. at 856. The plaintiff alleged the car was left

with the keys in the ignition outside of the tavern, creating special circumstances

that led to liability. Id. Our supreme court disagreed, finding no special

circumstances because there was no claim the vicinity of the tavern was a “high

crime or ‘hard-drinking’ area.” Id. (quoting Grain Belt Breweries, 245 N.W.2d 189–

90).

Here, the district court made a brief summary of the facts it found most

probative. It stated the cement mixer was stolen from private property that was

mostly surrounded by fencing. The Housby Mack campus had been subject to

minor thefts of things like batteries or scrap metal. Even if the district court

assumed the existence of a prior vehicle theft, those limited circumstances were

not enough to prove the Housby Mack campus was located in a high crime area.

Accordingly, the district court found no special circumstances existed to make

Housby Mack liable and granted the motion for summary judgment.

We review the record, viewing the evidence in the light most favorable to

the nonmoving party and providing all legitimate inferences in its favor. Hedlund,

930 N.W.2d at 715. We agree with the district court that no genuine issue of

material fact exists on the question of special circumstances that would lead to  6

Housby Mack’s liability. Id. We affirm the grant of summary judgment in favor of

Housby Mack.

AFFIRMED.