from the Iowa District Court for Black Hawk County, Joel A.
Inc., d/b/a Tony's La Pizzeria, appeals the district
court's denial of its motion for summary judgment.
REVERSED AND REMANDED.
Charles Lapierre of Klass Law Firm, L.L.P., Sioux City, for
Eashaan Vajpeyi of Ball, Kirk & Holm, PC, Waterloo, for
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
VAITHESWARAN, PRESIDING JUDGE.
consumed alcohol at several bars. They were arrested for
assaulting a third man, Brett Weichers. Weichers filed a dram
shop action against three bars, including Monkey, Inc., d/b/a
Tony's La Pizzeria ("Tony's"). He alleged
Tony's "sold and/or served beer, wine, alcoholic
beverages, and/or intoxicating liquor" to the two men
who assaulted him, "knowing they were intoxicated or
would become intoxicated." He sought damages for
injuries arising from the assault.
moved for summary judgment based on Weichers' failure to
comply with a statutory provision requiring injured persons
to notify licensees "[w]ithin six months of the
occurrence of an injury" of their intent to file a dram
shop action. See Iowa Code § 123.93 (2015). The
district court denied the motion after finding "the
plaintiff's efforts regarding compliance with the notice
requirement [were] sufficient to satisfy the statute."
appeal, Tony's contends Iowa Code section 123.93 requires
notice within six months of the injury, Weichers failed to
provide notice within that time frame, the establishment was
prejudiced by the absence of notice, and accordingly, the
district court erred in failing to dismiss the dram shop
action. Tony's further contends the district court erred
in finding a genuine issue of material fact as to whether
Weichers exercised reasonable diligence in discovering its
involvement. Weichers counters that section 123.93 authorizes
an extension of the six-month deadline if the injured person
is "unable, through reasonable diligence, to discover
the name of the licensee, permittee, or person causing the
injury." Iowa Code § 123.93. In his view, there is
a genuine issue of material fact on this question.
See Iowa R. Civ. P. 1.981(3) (stating summary
judgment is appropriate when "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 party is entitled to a judgment as a matter of
"123.93 must be accepted as a special statutory
limitation qualifying a given right, not as a pure statute of
limitations." Arnold v. Lang, 259
N.W.2d 749, 751 (Iowa 1977). It is an "inherent
element" of the statutory dram shop cause of action.
Id. at 752. "However, substantial compliance
with the notice provisions . . . will suffice."
Id. (applying the rationale applicable to another
statutory notice provision).
there was no compliance with the notice provision. It is
undisputed the incident occurred at Tony's on March 1,
2015. Weichers did not provide Tony's with the statutory
notice until January 14, 2017. Id. at 753 (noting
the plaintiff's petition "affirmatively alleges
facts disclosing as a matter of law his total failure to
substantially comply with the statutory notice
requirement"). The claim was barred, and Tony's was
entitled to summary judgment.
it is undisputed that Weichers knew the name of the bar where
the assault occurred, our opinion could end here.
Nonetheless, we will briefly address the "reasonable
diligence" basis for extending the deadline.
extension by reason of inability to learn of the prospective
dram shop defendant terminates when the prospective plaintiff
has had a reasonable time to discover the dram shop
operator." Shasteen v. Sojka, 260
N.W.2d 48, 51 (Iowa 1977). Weichers concedes that, on March
2, 2015, his family informed police the assault occurred at
Tony's. Weichers also does not dispute telling a police
officer less than three weeks later that he was assaulted at
Tony's. Although he contends he did not learn what type
of alcohol the two men purchased until well after the
statutory six-month deadline, the establishment's name is
the only fact referenced in the "reasonable
diligence" ground for extending the deadline.
See Iowa Code § 123.93; Veach v.
Prairie Meadows Racetrack & Casino,
Inc., No. 06-0366, 2006 WL 3801735, at *3 (Iowa Ct.
App. Dec. 28, 2006) (stating "before the six-month
period was completed . . . [the plaintiff] had enough
information [that the defendant was drinking at Prairie
Meadows] to file the dram shop notice"); cf.
Shasteen, 260 N.W.2d at 52 (finding reasonable minds
could differ on whether the plaintiff exercised reasonable
diligence to determine whether the defendant was drinking in
a tavern, where "nothing in the circumstances
surrounding the accident itself" ...