UPDATES & ANALYSIS
Four Iowa Supreme Court opinions on State’s duty to protect nursing home residents from a convicted sex offender
by Rox Laird | April 19, 2017
The placement of a serial sex offender in a nursing home where he assaulted an elderly woman “cries out for a remedy,” Iowa Supreme Court Justice Thomas Waterman noted in an opinion concurring with the Court’s decision in the case Friday.
But the Court was deeply divided about what that remedy should be. The seven-member Court issued four separate opinions that covered a lot of legal and procedural ground.
Here are the essential facts and legal issues addressed by each of the four opinions:
The facts of Gottschalk v. Pomeroy Care Center and the State of Iowa:
William Cubbage, 88, a repeatedly convicted sex offender deemed a “Sexually Violent Predator,” was committed by district court order to the Civil Commitment Unit for Sexual Offenders (CCUSO) at Cherokee. CCUSO staff concluded Cubbage was not making progress in treatment, however, and after exhibiting signs of dementia the State petitioned the district court to have him committed to a private nursing home in Pomeroy. While at the Pomeroy Care Center, “an eight-year-old child visiting the care center witnessed Cubbage sexually assaulting Gottschalk.”
Lawsuits were filed against the State and the nursing home by Mercedes Gottschalk (with her estate substituted as plaintiff following her death), and against the State by the Pomeroy Care Center. The suits were dismissed before proceeding to trial, which led to these appeals.
The majority decision:
The Court – in an opinion by Justice David Wiggins fully joined by Chief Justice Mark Cady and Justice Brent Appel and partially joined in a concurrence by Justice Waterman joined by Justice Edward Mansfield – held that the State of Iowa did not, as the Gottschalk estate claimed, have a legal duty to warn the residents of the Pomeroy Care Center of the danger posed by Cubbage in order to protect them from harm.
Cubbage’s commitment to the nursing home was ordered not by State officials but by the courts, Wiggins wrote. District court judges in Cherokee County and Des Moines County ordered Cubbage’s release from the Cherokee CCUSO and commitment to the Pomeroy Care Center based on evidence presented by the State that Cubbage was unable to care for himself due to his dementia.
“Neither the director nor any staff member of CCUSO had the authority to release or discharge Cubbage,” the Court held. “Our courts discharged Cubbage.” Thus, the State did not have a duty to warn the care center residents of risks posed by Cubbage. “The district courts made the ultimate decision to release Cubbage from CCUSO and commit him to the Pomeroy Care Center,” Wiggins wrote, “not the State.”
For the same reasons, the Court held that the State did not have a duty to assure that safety protocols were in place to protect the Pomeroy Care Center residents from Cubbage. And, for those reasons, the Court rejected the care center’s arguments on appeal.
The dissent by Justices Daryl Hecht:
Hecht argued that the Gottschalk and Pomeroy lawsuits should have proceeded to trial because the State had a duty to warn nursing home residents of the danger posed by Cubbage. He noted that a reasonable judge or jury could find that “the State’s transfer of Cubbage to a target-rich nursing home environment that lacked CCUSO-like security substantially increased the risk that Cubbage would offend if reasonable warnings were not given to those exposed to the risk at the care center.”
He said the district court order discharging Cubbage from the CCUSO was not an “adjudication of the nature and extent of the risk created by Cubbage upon discharge” but a “procedural device allowing the parties before the court to change the location of Cubbage’s placement by agreement.”
The dissent by Justice Bruce Zager:
Zager joined Hecht’s dissent but said he was prompted to write separately by “the summary and perfunctory fashion in which the State orchestrated the discharge of an obviously dangerous sexual predator from CCUSO and then facilitated his placement in a nursing home among a highly vulnerable population. This is troubling to me on many levels, both legally and factually.”
He said the State was not relieved of a duty of care by the fact that district judges ordered Cubbage’s nursing-home commitment. “The State had the care, custody, and control over Cubbage for decades,” he wrote. “When it no longer wanted this responsibility, regardless of the obvious risks it posed to public safety, it attempted to use the court system to absolve itself of all further responsibility and liability. This is unconscionable.”
The concurrence by Justice Waterman, joined by Justice Edward Mansfield:
Waterman wrote separately to say that while he agreed that the State had no liability, he said the Court need not have addressed the arguments raised by Gottschalk or the Pomeroy Care Center.
He said this case is governed by a “bright line” rule of law: Once in Cubbage was in the custody of the Pomeroy Care Center, he was the center’s responsibility, not the State’s. “In my view,” Waterman wrote, “the State’s tort duty ended upon William Cubbage’s unconditional release from its custody and transfer to the nursing home. Upon that transfer, Cubbage became Pomeroy’s responsibility.”
Waterman noted, however, that courthouse doors remain open to the Gottschalk estate:
“Because the facts of this case cry out for a remedy,” he wrote, “I begin by noting this appeal resolves only those claims by the plaintiffs and the nursing home against the State of Iowa. The plaintiffs will get their day in court on their tort claims against the nursing home operator, Pomeroy Development, Inc., which chose to accept a known sex offender as an in-patient resident and allegedly failed to properly monitor him to protect its vulnerable, elderly residents, including Mercedes Gottschalk.”
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