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IN THE COURT OF APPEALS OF IOWA No. 1-967 / 11-0892 Filed February 29, 2012

KIMBERLY ANN SALLEE, Individually and as Next Friend of LUCAS GREGORY DURKOP and MARIA CHRISTINA RIVERA, MATTHEW JAMES SALLEE and JAMES ALLAN SALLEE, Plaintiffs-Appellants, vs. MATTHEW R. STEWART and DIANA STEWART d/b/a STEWARTLAND HOLSTEINS, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Fayette County, Margaret L. Lingreen, Judge. Kimberly Ann Sallee appeals from a district court's grant of summary judgment to defendants upon its determinations that the defendants were entitled to recreational use limited liability pursuant to Iowa Code chapter 461C (2009), and that the affirmative actions of the landowners did not create a common law basis for liability. REMANDED. D. Raymond Walton of Beecher Law Offices, Waterloo, for appellants. Karla J. Shea of McCoy, Riley, Shea & Bevel, P.L.C., Waterloo, for appellees. Heard by Vogel, P.J., and Potterfield and Doyle, JJ. AFFIRMED IN PART, REVERSED IN PART, AND

2 POTTERFIELD, J. Kimberly Ann Sallee1 appeals from a district court's grant of summary judgment to defendants upon its determinations that the defendants were entitled to recreational use limited liability pursuant to Iowa Code chapter 461C (2009), and that the affirmative actions of the landowners did not create a common law basis for liability. Because we agree that the landowners were entitled to

recreational use limited liability to the extent they invited a group to visit their dairy farm, and there is no evidence of "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity," we affirm the grant of summary judgment in their favor on the plaintiff's claims of premises liability. However, because we believe there is a disputed issue of material fact as to the claims of common law negligence outside the defendants' limited premises liability, we remand to the district court for further proceedings. I. Background Facts and Proceedings. The following facts are not disputed. On August 9, 2010, Kimberly Ann Sallee was one of the chaperones for her daughter's kindergarten field trip to a dairy farm owned by Matthew and Diana Stewart and doing business as Stewartland Holsteins (Stewarts). The kindergarten teacher has been invited to bring her class to the Stewarts' dairy farm on an annual ba sis for several years. On the class trip, which included Sallee and her daughter, the children were guided by the Stewarts to different activities, including horseback riding, calf feeding, tractor viewing, and playing in the hayloft. Sallee was in the hay loft with

Sallee filed this suit for damages on behalf of herself, her children, and husband. We will refer to the plaintiffs collectively as Sallee.

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3 the children when the hay bale on which she was standing, and which was covering a chute, gave way and she fell to the floor approximately six feet below. As a result of the fall, Sallee broke her wrist and ankle. Sallee filed suit against the Stewarts alleging they breached "their duty . . . to maintain the premises in a manner safe for the use of business invitees in the normal and reasonable scope of such use, and/or to warn invitees . . . of dangerous conditions on the premises." Sallee later amended her petition to also assert the defendants "were acting as tour guides" upon whom the "Plaintiff and her daughter relied" and who "failed to exercise reasonable care in the conduct of the tour when they directed the Plaintiff and her daughter into the hay loft where the dangerous condition of the hole existed" and "made misrepresentations with regard to the safety of the hay loft." The Stewarts answered and asserted the affirmative defense provided in Iowa Code sections 461C.3 and .6 (2009).2 They filed a motion for summary judgment asserting this affirmative defense of recreational use limited liability available to landowners who allow the public to use their land for recreational purposes.

Chapter 461C was formerly codified at Iowa Code chapter 111C. Under chapter 461C, a land owner's premises liability is limited. Section 461C.3 provides: Except as specifically recognized by or provided in section 461C.6, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes . . . or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. Section 461C.6, however, provides the limited liability does not extend to willful or malicious acts on the land owner's part. Section 461C.6 reads in pertinent part: Nothing in this chapter limits in any way any liability which otherwise exists . . . [f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.

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4 Sallee resisted and filed a cross-motion for summary judgment. She

argued chapter 461C did not apply because entry onto the dairy farm was not "for recreational purposes"; and the farm was not "available to the public." Plaintiffs also contended that even if chapter 461C was applicable, the Stewarts were liable as a matter of law pursuant to section 461C.6 for "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." Following a hearing, the district court issued its ruling in favor of the Stewarts. The court noted the purpose of chapter 461C, as set out in section 461C.1, is to encourage private owners of land to make land and water areas available to the public for recreational purposes . . . by limiting an owner's liability toward persons entering onto the owner's property for such purposes. Definitions are provided in section 461C.2, and there "recreational purpose" is defined: "Recreational purpose" means the following or any combination thereof: Hunting, trapping, horseback riding, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycling, nature study, water skiing, snowmobiling, other summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites while going to and from or actually engaged therein. Iowa Code

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