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

Supreme Court of Iowa

March 30, 2018

RHONDA BANWART, Appellant,
v.
50TH STREET SPORTS, L.L.C. d/b/a DRAUGHT HOUSE 50, Appellee.

          On review from the Iowa Court of Appeals.

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

         An injured party seeks further review of a court of appeals decision affirming an adverse decision on a motion for summary judgment in a dramshop action. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

          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.

          WIGGINS, Justice.

         The front end of an alleged intoxicated person's (AIP) vehicle struck the rear end of another vehicle. The driver of the struck vehicle filed suit against a bar under Iowa's dramshop statute, alleging the bar sold and served alcohol to the AIP when it knew or should have known the AIP was intoxicated or would become intoxicated. The driver also filed suit against the AIP. The district court granted the bar's motion to consolidate the actions.

         The bar moved for summary judgment. The district court granted the bar's motion. The driver appealed. We transferred the case to our court of appeals. Adopting the analysis of the district court, the court of appeals affirmed summary judgment in favor of the bar.

         The driver filed an application for further review, which we granted. Viewing the evidence in the light most favorable to the driver, we find a genuine issue of material fact exists as to whether the bar knew or should have known the AIP was or would become intoxicated when it served alcohol to her. Accordingly, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings.

         I. Background Facts and Proceedings.

         The summary judgment record contains the following facts. Michelle Campbell is a learning and development consultant in the human resources department of Holmes Murphy. On February 27, 2015, Campbell went to Draught House 50[1] in West Des Moines with a group of five or six coworkers for postwork happy hour. Campbell arrived at Draught House 50 around 4:30 p.m. and stayed until around 8:30 p.m. She did not have any alcoholic beverages before arriving at or after leaving Draught House 50.

         In her December 14 deposition, Campbell claimed she shared appetizers with her coworkers and consumed three bottled Peace Tree beers during the course of the evening. The record does not show the size or percentage of alcohol in these beers. Each of the three rounds was on an open tab. Campbell claimed she did not drink any shots, mixed drinks, or wine. Campbell stated she did not recall anyone else at the table consuming shots.

         The CEO of Holmes Murphy bought the first two rounds and Campbell's supervisor bought the last round. Campbell claimed they ordered all three rounds of alcohol from a server who came to their table. Campbell further claimed neither she nor anyone else at the table exhibited excited emotions or yelled. According to Campbell, her group maintained the normal voice level of a bar on a Friday evening.

         The record lacks evidence of when Draught House 50 served Campbell's last beer. However, Campbell's supervisor, the person who bought the last round, left around 7:30 p.m.

         At the close of the gathering, Campbell got behind the wheel to drive home. She felt "in control" despite being "buzzed." Campbell stated her cell phone rang while on the road, so she looked down to see who was calling. At that moment, Campbell struck the rear of a vehicle stopped at a red light. Rhonda Banwart was the driver of the rear-ended vehicle and her two minor children were passengers. The accident occurred at the intersection of 60th and Ashworth Road, which is around fifteen to twenty blocks away, or a mile and a half away, from Draught House 50.

          Officer Barry Graham was dispatched to the accident scene at 8:36 p.m. Upon arrival at the scene around 8:39 p.m., Officer Graham spoke with Campbell, at which point he smelled the odor of alcohol coming from her. Campbell told Officer Graham she was coming from Draught House 50 and had consumed three alcoholic beverages prior to driving. She informed him she felt "buzzed." Officer Graham noticed Campbell had bloodshot, watery eyes and slurred speech. She had difficulty understanding Officer Graham's request for license, registration, and insurance. Based on his education, training, and experience, Officer Graham considered Campbell's demeanor and difficulty following simple instructions as signs of intoxication.

         Officer Graham requested Campbell to perform standard field sobriety tests, to which she complied. Campbell exited her vehicle and walked to the front of Officer Graham's squad car without stumbling. Officer Graham first conducted the horizontal gaze nystagmus test and noted Campbell "lacked smooth pursuit" in following his finger with her eyes. Campbell next agreed to perform the walk-and-turn test but expressed concern the cold temperature outside might affect her performance. Officer Graham thus transported Campbell to the West Des Moines police station to conduct the walk and turn. Campbell was not under arrest at this point.

         At the police station, Campbell exhibited capricious emotions, from laughing and joking to crying, while attempting to complete the walk and turn. She failed to follow instructions, missed heel to toe, stepped off the line, raised her arms, took an improper number of steps, and made an improper turn. Officer Graham next asked Campbell to do the one-leg stand. She swayed from side to side and put her foot down during the test. Based on the results of the tests, Officer Graham concluded Campbell showed signs of intoxication.

         At 9:53 p.m., Campbell consented to a preliminary breath test, which indicated a blood alcohol content (BAC) of over .08. The legal limit is a BAC of .08. At 9:55 p.m., Officer Graham arrested Campbell for operating while intoxicated (OWI). Around 10:14 p.m., almost three hours after the supervisor who bought the last round left Draught House 50 and almost two hours after Campbell left Draught House 50, Officer Graham requested from Campbell a breath sample for the Datamaster, which indicated a BAC of .143. Campbell later pled guilty to the OWI charge.

         On April 2, Banwart filed a petition on behalf of herself and her children against Draught House 50 under Iowa's dramshop statute. See Iowa Code § 123.92(1)(a) (2015). Banwart alleged Draught House 50 served alcohol to Campbell to the point of intoxication, and proximately caused Campbell's intoxication and the subsequent collision. On the same day, Banwart also filed a petition on behalf of herself and her children against Campbell, alleging Campbell was negligent for a number of reasons, including operating her vehicle while under the influence of alcohol.

         In January 2016, the district court granted Draught House 50's motion to consolidate both petitions. On February 3, Draught House 50 filed a motion for summary judgment. The court granted summary judgment in favor of Draught House 50. In its order, the court noted the accident happened only a few minutes after Campbell left Draught House 50. However, even though the evidence from the accident scene was "highly material" to show Campbell was intoxicated when she left Draught House 50, the court reasoned the issue was whether Draught House 50 knew or should have known that Campbell was intoxicated or would become intoxicated at the time it sold and served her the beers.

         In granting summary judgment to Draught House 50, the court concluded that "the undisputed evidence of serving three beers over four hours, absent something more, [cannot] create[] an inference that Draught House knew or should [have] know[n] that . . . Campbell was intoxicated or would become intoxicated."

         On July 19, Banwart appealed the district court's order. Banwart settled her claims with Campbell. Thus, the only defendant that remains in this action is Draught House 50.

         We transferred the case to our court of appeals. The court of appeals affirmed the district court's judgment. Banwart filed an application for further review, which we granted.

         II. Issue.

         The issue is whether a genuine issue of material fact exists as to whether Draught House 50 knew or should have known Campbell was intoxicated or would become intoxicated when it sold and served the beers to her.

         III. Scope of Review.

         We review orders granting summary judgment for correction of errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep't of Transp., 891 N.W.2d 220, 224 (Iowa 2017).

         IV. Summary Judgment Standards.

         Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving ...

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