¶1(dissenting in part).
¶2Our cases establish the premise that chapter 613A is a statute of creation. Notwithstanding any reservations about the validity of this premise it is firmly woven into our law. See Wilson v. Nepstad, 282 N.W.2d 664, 669 (Iowa 1979), and cases there cited. On that basis I concur in divisions I and II of the majority opinion. The legislature in “creating” governmental liability had the power to impose section 613A.5 as a condition for the liability created.
¶3It does not follow, however, that the legislature holds the power to impose section 613A.5 in favor of governmental employees. There can be no claim that any new liability was created as to them. In Harryman v. Hayles, 257 N.W.2d 631, 638 (Iowa 1977); Vermeer v. Sneller, 190 N.W.2d 389, 392 (Iowa 1971); Anderson v. Calamus Community Seh. Dist., Clinton Co., 174 N.W.2d 643, 644 (Iowa 1970); and Montanick v. McMillin, 225 Iowa 442, 459, 280 N.W. 608, 617 (1938), cited by the majority, we clearly established that a public employee is liable for damages for any tort he commits notwithstanding his public employment. See generally 81A C.J.S. States § 126(b).
¶4Insofar as chapter 613A protects public employees from personal liability in tort it is the exact opposite of the statute of creation. The added protections amount to legislative withdrawal of a right to recovery. This is certainly true of the 1974 Session, 65th G.A., ch. 1263, § 5, a change the majority says the legislature adopted “[t]o plug this hole in the municipal tort claims act . . . .” Because of that change the majority holds the plaintiff was bound to serve a 613A.5 notice in order to sue the city employees. Having failed to comply he can have no day in court.
¶5Here the notice requirement is applied without the most essential element of its justification. No right was created. The notice requirement merely took one away. Accordingly, as applied to the facts here, the views expressed in the dissenting opinions on the constitutionality of section 613A.5 become compelling. Compare Harryman v. Hayles, 257 N.W.2d at 634-35, with id. at 639 (special concurrence); compare Shearer v. Perry Community Sch. Dist., 236 N.W.2d 688, 692-93 (Iowa 1975), with id. at 694-95 (dissent); and compare Lundy v. Vogelmann, 213 N.W.2d 904, 908 (Iowa 1973), with id. at 912 (dissent). It is not necessary to restate those views here. It is enough to say that the absence of the section’s justification changes the outcome in the constitutional test.
¶6I agree with the plaintiff’s fourth assignment of error. Section 613A.5 is unconstitutional as applied to the defendants Kohl and Montgomery. It denies them equal protection under Art. I,. § 6 of the Iowa Constitution and the Fourteenth Amendment to the United States Constitution. I would reverse the judgment of the trial court insofar as the motion for summary judgment was sustained against the defendants Kohl and Montgomery.