Kiesau v. Bantz

CADY, Justice

(dissenting).

I respectfully dissent. The majority revisits an issue we ostensibly settled just over two years ago in Graves, 639 N.W.2d at 25, and now determines our unanimous conclusions on the issue of negligent supervision in that case were unfounded. Having adopted the rule in Graves that a claim of negligent supervision is not actionable without physical injury, id., I believe we are obligated, under the governing principle of stare decisis, to apply and follow the rule in this case.

*180 It nearly goes without saying that the doctrine of stare decisis is one of the bedrock principles on which this court is built. It is an important restraint on judicial authority and provides needed stability in and respect for the law. The majority acknowledges the importance of this principle but fails to follow the standards we have developed to ensure its protection. While we would abdicate our role as a court of last resort if we failed to occasionally ■ reexamine our prior decisions, we must undertake this weighty task only for the most cogent reasons and with the greatest caution. State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003). Ultimately, “[i]t is even of more ‘importance that a rule should be fixed and stable than that it should be strictly just.’ ” Clark v. Hyman, 55 Iowa 14, 20 , 7 N.W. 386, 389 (1880) (citation omitted). Thus, we have long accorded the highest respect to our prior opinions, overruling them only when error is manifest and the precedent clearly erroneous. E.g., Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000); Kersten Co. v. Dep’t of Soc. Sens., 207 N.W.2d 117, 121-22 (Iowa 1973). This exceedingly high standard — which has been variously described but ever present throughout this court’s history — cannot be satisfied in this case. 1

The law in this area is not so clear and settled that it compels us to overrule our holding in Graves that a physical injury must underlie a claim for negligent hiring, supervision, or retention. , 639 N.W.2d at 25. If the law in this area was more settled — if we could truly say Graves was out of the jurisprudential mainstream and clearly erroneous' — our obligation to overturn it might be manifest. Instead, several principles related to the physical injury requirement remain unsettled. 2 The ma *181 jority implicitly acknowledges this fact by describing our “error” in Graves in reference to cases that reveal the spectrum of approaches to this issue. See Grego v. Meijer, 187 F.Supp.2d 689, 694 (W.D.Ky. 2001); Verhelst v. Michael D’s Rest San Antonio, Inc., 154 F.Supp.2d 959, 968 (W.D.Tex.2001); Hays v. Patton-Tully Transp. Co., 844 F.Supp. 1221, 1223 (W.D.Tenn.1993). These cases — each of which is a federal court interpretation of unsettled state law — hardly show Graves is “palpably wrong.” Cover v. Craemer, 258 Iowa 29, 35 , 137 N.W.2d 595, 599 (1965). At best, they show a doctrine in flux. Moreover, in addition to the cases we cited in Graves to support our adoption of the physical injury rule, many other courts around the nation require physical injury. See, e.g., Monte v. Ernst & Young, LLP, 330 F.Supp.2d 350, 365 (S.D.N.Y.2004) (holding that a plaintiff subjected to discrimination could not recover for negligent hiring/retention because he could not establish a “significant physical injury”); McDaniel v. Fulton County Sch. Dist., 233 F.Supp.2d 1364, 1388-89 (N.D.Ga.2002) (holding that under Georgia law, emotional distress in the absence of physical injury or willful or wanton conduct is insufficient to support a claim of negligent hiring, retention, or supervision); Midwest Knitting Mills, Inc. v. United States, 741 F.Supp. 1345, 1350 (E.D.Wis.1990) (concluding that under Wisconsin law, employer cannot be sued for negligent supervision when conduct did not result in physical injury).

Of course, we stepped into the breach two years ago and stated where we stand on this issue. See Graves, 639 N.W.2d at 25. Like this case, the claims in Graves included negligent supervision and defamation. Furthermore, the key cases cited by the majority were decided before Graves. Grego, 187 F.Supp.2d at 694 (decided in 2001); Verhelst, 154 F.Supp.2d at 968 (decided in 2001); Hays, 844 F.Supp. at 1223 (decided in 1993). The undeniable implication of the majority opinion is that we did not fully and fairly consider the entire spectrum of law related to the physical injury requirement when we chose our course in Graves. Yet, there is no evidence that this is the case, and if we are willing to indulge that belief — even implicitly — what is to stop others from undercutting all of our precedents based on similar logic? See Stewart v. Bd. of Supervisors, 30 Iowa 9, 43 (1870) (Beck, J., dissenting) (“There can be no greater reproach to the administration of justice by the courts than the well-founded charge of oscillating decisions.”); see also Swan Lake Consol. Sch. *182 Dist. v. Consol. Seh. Dist. of Dolliver, 244 Iowa 1269, 1276 , 58 N.W.2d 349, 353 (1953) (“No sufficient reason why [a principle] should unanimously have been held sound less than four years ago and now found to be unsound has been advanced.”).

Additionally, the majority declares Graves to be inconsistent with our decisions in Schojf and Godar. Yet, these three decisions can all be read as consistent, which is something I believe we are obligated to do when possible. Instead, the majority creates an inconsistency by reading far too much into Schojf and Go-dar.

I would affirm the decision of the district court. We chose our course in Graves, and we are obligated to follow it in this case.

. From the very beginnings of this court, we have guarded the venerable doctrine of stare decisis and required the highest possible showing that a precedent should be overruled before taking such a step. See Hildreth v, Tomlinson, 2 Greene 360, 361 (1849) ("To justify us in overruling a deliberate judgment of the supreme court, whether made before or since our state organization, the decision must appear to be palpably erroneous.”); see also Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 857 (Iowa 2001) ("[Ujnder- the doctrine of stare decisis there is a preference for upholding prior decisions of this court.” (citation omitted)); Miller, 606 N.W.2d at 306 (noting holdings should be overruled only "when error is manifest” (citations omitted)); Kersten Co., 207 N.W.2d at 121 (involves “a clearly erroneous result”); Cover v. Craemer, 258 Iowa 29, 35 , 137 N.W.2d 595, 599 (1965) ("palpably wrong”); Stuart v. Pilgrim,. 247 Iowa 709, 714 , 74 N.W.2d 212, 216 (1956) ("only for the most cogent reasons”); Goodman v. Henry L. Doherty & Co., 218 Iowa 529, 531 , 255 N.W. 667, 668 (1934) ("very exceptional case”); Lammars v. Chicago Great W. R.R. Co., 162 Iowa 211, 215 , 143 N.W. 1097, 1098 (1913) ("weighty and sufficient reasons”); Remey v. Iowa Cent. R.R. Co., 116 Iowa 133, 158 , 89 N.W. 218, 227 (1902) (Deemer, J., dissenting) ("great and imperious necessity”); Purczell v. Smidt, 21 Iowa 540, 558 (1866) (based on the "clearest conviction”); Doolittle v. Shelton, 1 Greene 272, 273 (1848) ("clearly erroneous”).

. I surmise that the diversity of approaches to the physical injury rule arises from the murky intersection of Restatement (Second) of Agency section 213 (1958), Restatement (Second) of Torts section 317 (1965), and the common-law theory of respondeat superior. Each has been cited as a basis for recovery for negligent hiring in various contexts, but little effort has been made to fully explicate each theory or its underlying elements vis-a-vis the other two theories. In most cases, that type of analysis has been avoided by the adoption of one or the other of the theories without any discussion of how it may fit in with the other two theories. For example, we have adopted the Restatement (Second) of Agency section 213 and respondeat superior theories, but we have yet to recognize a cause of action based on Restatement (Second) of Torts section 317. See Godar v. Edwards, 588 N.W.2d 701, 705, 708-09 (Iowa 1999). The majority makes no effort to consider the role of this later Restate- , ment section, as other jurisdictions have, see, *181 e.g., Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 533-34 (Minn. 1992), on the development of the tort or its specific reference to physical harm. One explanation for the physical injury requirement may relate to the element of the tort that requires the employer to foresee that the employee was a threat to injure others. The foreseeability of the threat is greater, making the imposition of a duty of care more understandable, when applied to physical injury as opposed to emotional or economic harm. See Godar, 588 N.W.2d at 708 (the scope of the duty is not unlimited, but is confined by the foreseeability of the risk). Moreover, our tort law has historically been reluctant to permit recovery under a negligence theory without physical injury. See Clark v. Estate of Rice, 653 N.W.2d 166, 170 (Iowa 2002) (noting that Iowa does not "recognize an independent claim for emotional distress based on negligence without some physical harm” (citation omitted)); Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 123 (Iowa 2001) ("[Mjisrepresentation based on negligent conduct has typically been addressed within the framework of a claim for negligence when the conduct has caused personal injury or property damage.” (citation omitted)). As an alternative to abandoning Graves, a better approach to the resolution of this case may be to recognize torts such as assault and defamation to fit within the scope of the physical injury rule based on the nature of the conduct that gives rise to the torts and the recognized interests they protect.