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IN THE COURT OF APPEALS OF IOWA No. 9-120 / 08-1266 Filed May 29, 2009 ZACHARY D. OSTREM, a minor, by and through his Parents and Next Friends STACIE L. OSTREM and A. DAVID OSTREM, JR., Plaintiff-Appellant, vs. HOME OPPORTUNITIES MADE EASY, INC. d/b/a H.O.M.E., INC., and/or HOME, INC., Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

Plaintiff appeals from a district court ruling granting summary judgment in favor of defendant. AFFIRMED.

Jason D. Walke of Gunderson, Sharp & Walke, L.L.P., Des Moines, for appellant. Patrick D. Smith and Amy R. Teas of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.

Heard by Sackett, C.J., and Vogel and Miller, JJ.

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MILLER, J. Zachary Ostrem, by and through his parents, David and Stacie Ostrem,1 appeals from a district court ruling granting summary judgment in favor of Home Opportunities Made Easy, Inc. (HOME), a nonprofit corporation that provides services designed to help low-income individuals in becoming homeowners. We affirm the judgment of the district court. I. BACKGROUND FACTS AND PROCEEDINGS. Zachary suffered a severe closed head injury at the home of Matthew and Lisa McVicker when he was ten months old. Lisa began babysitting Zachary for the Ostrems in October 2002. When Zachary was at the McVickers' house, he slept in a playpen in their son Tyler's room. One afternoon in July 2003, after Lisa laid Zachary down for a nap, nine-year-old Tyler went into his room to get a video game magazine he had left under the playpen. According to Tyler, when he reached for the magazine Zachary stood up in the playpen and pulled Tyler's hair with both hands. Tyler could not get Zachary to let go, so he grabbed Zachary around his stomach and threw him off. Zachary hit his head on the wall next to the playpen. Lisa ran into Tyler's room when she heard Zachary scream and called 911. Zachary was taken to the hospital where it was determined he had suffered a right subdural hematoma and bilateral diffuse retinal hemorrhages as a result of the incident.

1

David and Stacie were married when the events giving rise to this lawsuit occurred. They have since divorced, and Stacie has assumed her maiden name of Dohrman. However, for ease of reference, we will refer to Zachary's parents as the Ostrems throughout this opinion.

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After Zachary was injured, his parents learned the McVickers rented their house from HOME through its Homeownership Opportunities Services "lease/purchase program." That program is designed to assist low -income

individuals in becoming homeowners "by providing adequate, affordable housing which the family leases from HOME, Inc. until such time as the family can assume HOME, Inc.'s mortgage on the property." Under their lease purchase agreement with HOME, the McVickers agreed to receive support services from HOME aimed at teaching them how to become financially responsible homeowners. They were required to meet with a homeownership counselor The lease

monthly and provide financial records to HOME upon request.

purchase agreement additionally provided that the property was "not to be subleased to others or used for business purposes." The Ostrems, individually and on Zachary's behalf, filed a negligence action against the McVickers. They eventually dismissed that lawsuit after

settling with the McVickers for the liability limit of their renters' insurance policy. The Ostrems then filed a lawsuit on behalf of Zachary against HOME, seeking recovery under the following legal theories: (1) general negligence; (2) negligent failure to control the use of property under Restatement (Second) of Torts section 318 (1965); (3) negligent performance of an undertaking under Restatement (Second) of Torts section 324A; and (4) premises liability.2 HOME filed a motion for summary judgment, asserting it did not owe Zachary a duty of care under any of those theories. The district court agreed and
2

The petition also alleged a breach of contract claim, which was dismissed by the district court in its summary judgment ruling. Zachary has not appealed that portion of the court's ruling.

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entered summary judgment in favor of HOME, dismissing Zachary's claims against it. Zachary appeals. II. SCOPE AND STANDARDS OF REVIEW. We review the district court's summary judgment ruling for the correction of errors at law. Iowa R. App. P. 6.4; Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999). Summary judgment will be upheld where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Van Essen, 599 N.W.2d at 718. While negligence actions are seldom capable of summary adjudication, the threshold question in any tort case is whether the defendant owed the plaintiff a duty of care. Sankey v. Richenberger, 456 N.W.2d 206, 207 (Iowa 1990). "Whether such a duty arises out of the parties' relationship is always a matter of law for the court." Hoffnagle v. McDonald's Corp., 522 N.W.2d 808, 811 (Iowa 1994). III. MERITS. "The elements of a negligence claim include the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages."3 Van Essen, 599 N.W.2d at 718. Our courts have often relied on the Restatement (Second) of Torts when determining whether a given defendant owes a duty to a plaintiff. Id. "Ultimately, though, the existence of a duty is a policy decision, based on the relevant

3

Because the district court resolved HOME's summary judgment motion on the duty of care issue, it did not address any other issues, such as proximate cause, that might also be lacking in this case.

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circumstances, that the law should protect a particular person from a particular type of harm." Id. at 719. "Generally, a person does not have a duty to aid or protect another, or to control the conduct of a third person to prevent that person from causing physical harm to another." Pierce v. Staley, 587 N.W.2d 484, 487 (Iowa 1998). There are exceptions to this rule, however. Id.; see also Restatement (Second) of Torts

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