Court ruling allows low-head dam drowning petition to go forward in Fayette County

DES MOINES — An Iowa Supreme Court ruling Friday overturned the dismissal of a lawsuit filed by the family of a mother and daughter who drowned while floating on inner tubes down the Turkey River after going over a low-head dam and being pulled under by the swift current.

Sharon Kahn, 64, and her daughter, Vicki K. Hodges, 44, both of West Union, died in a June 2020 tubing accident on the Turkey River Water Trail after going over the low-head dam near Clermont in Fayette County, according to their petition. The mother and daughter hadn’t been on the river before and they didn’t know they would reach the low-head dam before their planned exit point.

A low-head dam is a human-made structure built across a river just below the water’s surface, the ruling states. Water flows over the edge, falling about five feet to the dam’s base. The dams are “notoriously dangerous” because strong currents and recirculating water is created by the falling water at the base, which can trap boats and individuals — pulling them underwater, according to the ruling.

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The “state has referred to them as ‘drowning machines’ and had instituted a program providing funding to low-head dam owners to modify or remove them,” Associate Justice Matthew McDermott noted in the ruling.

The women’s families sued the state, Fayette County, the Fayette County Conservation Board and the City of Clermont, claiming negligence and premises liability because there was a failure to maintain warning signs about the dam along the river, according to the ruling.

In the petition, they assert there were five warning signs that had been posted about the upcoming dam, but four of those were overgrown with vegetation that people on the river couldn’t see.

They also assert there was no emergency safety equipment on the river, such as buoys or safety cables that a person could grab to avoid going to the dam, according to the lawsuit. There was an emergency area created to get off the river so people could walk on land to another access point downstream, but it also had been overgrown by vegetation and in “disrepair,” making that area inaccessible, the petition contends.

Kahn and Hodges were unaware of the danger and continued down the river until they spilled over the dam, each getting caught up in the swift current and both drowned, according to the petition.

Qualified immunity protections don’t apply, court rules

The defendants argued to dismiss the case on several grounds, including qualified immunity, asserting the plaintiffs must meet the “heightened pleading standard” under Iowa law. A law was passed in 2021 — “back the blue law” — which created qualified immunity defense for claims against government entities. The law also included new requirements for what information must be in all lawsuits.

The heightened pleading standard must include a “plausible violation or failure to plead that the law clearly established at the time of alleged violation shall result in the dismissal with prejudice” of the lawsuit, according to the ruling.

The district court judge ruled this standard applied and the petition failed to meet it, according to the ruling.

In this case, the justices found because the petition alleges only common law claims of negligence and premises liability — without violations of any statutory or constitutional rights — the qualified immunity protections don’t apply, nor do the heightened pleading requirements.

Under this standard, the petition only needs to include factual allegations to give the defendants “fair notice” of the claim so they can respond, according to the ruling. This petition contains sufficient facts for the defendants to understand what events “give rise to the claim and claim’s general nature.” The district court erred and those grounds are dismissed.

The court also reversed the district court’s rulings on the defendants’ claims under the public-duty doctrine, in which a governmental entity can’t be held liable for a plaintiff’s injury that results from the government’s breach of duty to the general public and not to the individual plaintiff.

The court, under this argument, considers whether the government body’s alleged actions had a duty to act, usually under a rule or ordinance, but failed to take action. The court also considers if the government “affirmatively acts and does so negligently,” according to the ruling.

The petition contends each of the defendants posted the warning signs along the trial but the signs were neither “properly positioned nor properly maintained,” according to the ruling. Four of the five warning signs about the low-head dam weren’t visible to people on the river, which made Kahn and Hodges unaware of the dam until it was too late, the petition stated.

“In this respect, the petition thus presents not a failure to comply with a uniquely governmental duty imposed on a governmental body by a law or regulation, but an affirmative act to install and maintain signs that was then undertaken negligently.”

The court concluded the public-duty doctrine doesn’t bar “at least some aspects” of the estates’ claims against each of the defendants. The district court’s dismissal on this ground is reversed.

The district court’s dismissals of state sovereign immunity and recreational immunity claims by the defendants were also reversed.

The lawsuit will now go back to District Court and move forward, according to the ruling.

Comments: (319) 398-8318; trish.mehaffey@thegazette.com