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Weichers v. Bourbon Street Bar & Grill, Inc.

Court of Appeals of Iowa

February 6, 2019

BRETT WEICHERS, Plaintiff-Appellee,
v.
BOURBON STREET BAR & GRILL, INC., d/b/a BOURBON STREET BAR & GRILL AND VOODOO LOUNGE, and D-SQUARED, LLC, d/b/a WHISKEY ROAD, Defendants, and MONKEY, INC., d/b/a TONY'S LA PIZZERIA, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.

         Monkey, Inc., d/b/a Tony's La Pizzeria, appeals the district court's denial of its motion for summary judgment. REVERSED AND REMANDED.

          Rene Charles Lapierre of Klass Law Firm, L.L.P., Sioux City, for appellant.

          Eashaan Vajpeyi of Ball, Kirk & Holm, PC, Waterloo, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         Two men 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.

         Tony's 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."

         On 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 law").

         Section "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).

         Here, 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.

         Because 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.

         "An 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" ...


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