RHONDA BANWART, Individuallyand as Next Friend of A.B. and M.B., Minor Children, Plaintiff-Appellant,
50TH STREET SPORTS, L.L.C. d/b/a DRAUGHT HOUSE 50, Defendant-Appellee.
from the Iowa District Court for Polk County, Jeffrey D.
plaintiff appeals from the district court's grant of
summary judgment in favor of the defendant, dismissing the
plaintiff's petition alleging dramshop liability.
Michael T. Norris of Slater & Norris, P.L.C., West Des
Moines, for appellant.
D. Zenor of Grefe & Sidney, P.L.C., Des Moines, for
Considered by Mullins, P.J., and Bower and McDonald, JJ.
MULLINS, Presiding Judge.
Banwart, individually and as next friend of minor children
A.B. and M.B., appeals from the district court's grant of
summary judgment in favor of 50th Street Sports, L.L.C.,
d/b/a Draught House 50 ("Draught House"),
dismissing Banwart's petition alleging dramshop
liability. Upon our review, we affirm.
Background Facts and Proceedings
February 27, 2015, at approximately 4:30 p.m., Michelle
Campbell met some of her coworkers at Draught House for food
and drinks after work. While at Draught House, Campbell
consumed three beers and ate food that had been ordered for
the table. Campbell did not consume any alcohol before she
arrived or after she left Draught House. The group put the
food and drinks they ordered on an open tab. Two of
Campbell's coworkers paid for the group's tab before
leaving around 7:30 p.m. Campbell did not order or consume
any other drinks that evening. Campbell later testified that
her group talked at a "normal voice level for a bar on a
left Draught House around 8:30 p.m. Shortly thereafter, the
front end of Campbell's vehicle collided with the rear
end of Banwart's vehicle, which was stopped at a stop
light. Campbell later testified at her deposition that she
felt "in control" and able to drive at the time she
left Draught House. She also testified she was slowing down
to stop behind Banwart's car when she received a phone
call, became distracted and looked away from the road to see
who was calling, and then immediately collided with
Banwart's car. Campbell further testified her airbag did
not deploy and she did not suffer any injuries as a result of
the accident. The police report from the accident shows both
vehicles had moderate damage but appeared to be operational.
police officer arrived at the scene to investigate the
accident. The officer smelled the odor of alcohol emanating
from Campbell's vehicle when he approached. He observed
Campbell had bloodshot and watery eyes, slurred speech, and
difficulty following his instructions. The officer asked
Campbell where she was coming from and if she had been
drinking. Campbell told the officer she had had three beers
at Draught House. She also told the officer she felt
"buzzed" but still in control. Campbell did not
stumble as she got out of her vehicle and had no problems
walking or balancing. Campbell completed three field sobriety
tests at the officer's request. The officer later
testified Campbell's emotions varied between joking and
laughing or crying during the tests and he observed several
signs of intoxication. Campbell also complied with a
Datamaster test, which showed she had a blood alcohol level
of .143. Campbell was subsequently charged with operating
while intoxicated (OWI), first offense, and pled guilty.
April 2, 2015, Banwart filed a petition at law against
Draught House, alleging Draught House was liable for the
collision due to its sale and service of alcoholic beverages
to Campbell and seeking damages related to the accident.
Draught House filed a motion for summary judgment, which the
district court granted. Banwart appeals.
Standard of Review
review a district court's grant of summary judgment for
correction of errors at law. See Goodpaster v.
Schwan's Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa
2014). Summary judgment is appropriate when there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Iowa R. Civ. P.
1.981(3); Sanford v. Fillenwarth, 863 N.W.2d 286,
289 (Iowa 2015). "[A] 'factual issue is
"material" only if "the dispute is over facts
that might affect the outcome of the suit."'"
Peak v. Adams, 799 N.W.2d 535, 542 (Iowa 2011)
(quoting Phillips v. Covenant Clinic, 625 N.W.2d
714, 717 (Iowa 2001)). "An issue of fact is
'genuine' if the evidence is such that a reasonable
finder of fact could return a verdict or decision for the
nonmoving party." Parish v. Jumpking, Inc., 719
N.W.2d 540, 543 (Iowa 2006). The burden is on the moving
party to show the nonexistence of a material fact.
Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430,
434 (Iowa 2008). "However, the nonmoving party ...