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Banwart v. 50th Street Sports L.L.C.

Court of Appeals of Iowa

May 3, 2017

RHONDA BANWART, Individuallyand as Next Friend of A.B. and M.B., Minor Children, Plaintiff-Appellant,
v.
50TH STREET SPORTS, L.L.C. d/b/a DRAUGHT HOUSE 50, Defendant-Appellee.

         Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.

         The plaintiff appeals from the district court's grant of summary judgment in favor of the defendant, dismissing the plaintiff's petition alleging dramshop liability. AFFIRMED.

          Michael T. Norris of Slater & Norris, P.L.C., West Des Moines, for appellant.

          Adam D. Zenor of Grefe & Sidney, P.L.C., Des Moines, for appellee.

          Considered by Mullins, P.J., and Bower and McDonald, JJ.

          MULLINS, Presiding Judge.

         Rhonda 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.

         I. Background Facts and Proceedings

         On 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 Friday evening."

         Campbell 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.

         A local 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.

         On 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.

         II. Standard of Review

         We 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 ...


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