# Sechler v. State

> Supreme Court of Iowa · November 23, 1983 · 340 N.W.2d 759

URL: https://www.frixlaw.com/law-library/cases/9670543

## Case

- **Full name:** Ronald SECHLER, Administrator of the Estate of Jeffrey Sechler, Deceased, Appellant, v. STATE of Iowa, Roger Bierbaum and Lowell Essick, Appellees; STATE of Iowa, Appellee, v. GRAVES CONSTRUCTION CO., INC. of Melvin, Iowa, and Midwest Paving Co., of Sioux City, Iowa, Appellees
- **Court:** Supreme Court of Iowa
- **Decided:** November 23, 1983
- **Citations:** 340 N.W.2d 759; 1983 Iowa Sup. LEXIS 1723
- **Precedential status:** Published
- **Opinion:** Dissent by Carter
- **Judges:** Schultz, Uhlenhopp, Uhlen-Hopp, Carter, McGiverin, Wolle
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670543

## How later opinions describe it (automated extraction)

- declining to apply Goetzman rule in pending appeal because plaintiff had failed to preserve error on that issue

## Opinion text

CARTER, Justice
(dissenting).
I respectfully dissent from the court’s interpretation of Iowa Code section 306.41 (1981) and from the result.
The court’s interpretation of the words “gross negligence” as used in that statute unnecessarily resurrects an unworkable, thoroughly discredited, and long-abandoned system of classifying tortious conduct according to degree rather than kind. As stated in Denney v. Chicago, Rock Island, Pacific Ry. Co., 150 Iowa 460, 464-65 , 130 N.W. 363, 364-65 (1911):
In this state, as is well known, the actionable character of negligence is not dependent upon its “degree,” and the ancient differentiation into “gross,” “ordinary,” and “slight” has come to mean little more than a matter of comparative emphasis in the discussion of testimony.
While it clearly would lie within the power of the legislature to resurrect that means of classifying conduct for purposes of imposing legal liability, there is no reason to attribute such intent to the legislation now before us. To the extent the majority seeks to interpret the statute in accordance with the teachings of the common law, I submit that the court should seek guidance from the contemporaneous common law.
I believe the preferable place to start in interpreting the language of this statute is the consideration of its direct application. The majority instead has focused primarily on the collateral consequences which flow from the meaning ascribed to the words “gross negligence,” i.e., how our interpretation will affect the contributory negligence defense. In direct application, it seems *769 clear that the legislature was concerned with limiting the liability of the state agency and its contractors with respect to persons injured on temporarily closed highways. It is equally clear that it intended to limit recovery on claims of this type to those situations where it can be established that the conduct of the state agency or its contractors constitutes a greater departure from the legal norm than need be shown to establish negligence.
The issue of interpretation thus becomes where was the line of demarcation intended to fall. This involves both the resolution of the abstract issue and the articulation of the answer in understandable terms which may be applied by courts and juries in deciding actual cases.
The majority ascribes to the legislature the intent to add an additional rung to the already overburdened ladder of ascending levels of tortious conduct. Above negligent acts on the existing ladder already lie reckless, wanton, and willful acts. See, e.g., Mescher v. Brogan, 223 Iowa 573, 579-80 , 272 N.W. 645, 649 (1937). The majority places the new level of conduct to which it assigns “gross negligence” immediately above negligence in ascending order. For purposes of determining the line of demarcation between acts of simple negligence and the new level of “gross negligence,” the majority focuses on the extent of departure from reasonable care rather than involving those elements of disregard for consequences usually associated with reckless or wanton conduct.
I submit that the majority has unnecessarily complicated our tort law and left us without any meaningful definition of “gross negligence” for purposes of applying section 306.41. I also believe that it errs in ascribing to the legislature the intent to squeeze a new level of tortious conduct between negligent acts and reckless acts. The words “gross negligence” suggest a major departure from reasonable conduct. In instances where such a departure is established, the elements of proceeding without heed or concern for the consequences will ordinarily arise by implication, thereby equating gross negligence with recklessness in fact if not in law. Viewed in this light, I find the distinction drawn by the majority to be largely imaginary. The distinction is made to appear real only by employing the technique of defining the same thing in different terms.
We have quite recently concluded that the term “gross negligence,” without additional dimension is nebulous. Thompson v. Bohlken, 312 N.W.2d 501, 504 (1981). In discussing how some courts have dealt with this problem, Prosser, Handbook of the Law of Torts section 34 at 183 (4th ed. 1971) states:
Several courts, however, dissatisfied with a term so nebulous and struggling to assign some more or less definite point of reference to it, have construed gross negligence as requiring wilful misconduct or recklessness, or such utter lack of all care as will be evidence of either — sometimes on the ground that this must necessarily have been the intent of the legislature.
Our own legislature has adopted this meaning of “gross negligence” in enacting Iowa Code section 85.20. I see no reason for ascribing a different meaning to the same term in construing section 306.41, simply because the legislature added more dimension to the term in one statute than it did in the other. Construing the term to mean the same thing in both statutes would avoid confusion and, in addition, would avoid the creation of an additional level of tortious conduct, poorly defined, which will almost certainly overlap with acts of reckless conduct under existing law.
I would hold (1) that “gross negligence” as used in section 306.41 should be equated with conduct amounting to wanton neglect for the safety of another; (2) that by reason of the principles followed in Siesseger v. Puth, 213 Iowa 164, 182 , 239 N.W. 46, 52 (1931) and Restatement (Second) of Torts section 503 (1965) contributory negligence is not a defense to claims under section 306.-41; and (3) that because the trial court used an incorrect standard for determining “gross negligence” under section 306.41, its judgment must be reversed. I would re *770 mand the case for a supplemental opinion and judgment by the trial court on the existing record based on the definition of “gross negligence” which I have suggested for applying section 306.41.
McGIVERIN and WOLLE, JJ., join this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670543. Public record. Not legal advice.