*1 apply even such information to me defendant under the seems pretrial Brady doctrine set forth v. Maryland, than at strongly trial at more 373 U.S. 83 S.Ct. 215? L.Ed.2d stage. It is inquiry submitted the type ruling camera reasonable This in this Supreme that a by Court case is fair trial was accepted denied majority. when by the defendant was denied indicated access States as United surveillance, requested. information This as to electronic necessitates At least a rule is trial. new concluded such has now court States, 394
unworkable, v. United Alderman L.Ed.2d 176 88 S.Ct. U.S. RAWLINGS, J., joins in this dissent. reasoning is (March 1969). While we have controlling to the situation as not LeGRAND, J., joins in Division II of by Mr. opinion here, majority Justice this dissent. responsibil- recognizes the ultimate White usability the evi- determine ity to counsel, court. We not the is on
dence exploratory through the same go clearly pointed way is so
steps when Aider- including the preceding and
by cases case. man BERGE, Appellant, Jerrie procedure. I do not understand II. report in trial court examines
If the HARRIS, Knapp, Neil S. Gerald and Uni F. the material camera decides question versity City, of Iowa Iowa, Appellees. “one or contain contained therein the ma- inconsistent more statements No. 53562. exam- Braatz direct testimony of terial Supreme Court of Iowa. impeach- admissible ination which is happens next? Sept. 16, purposes”, what ment be certified majority holds material is to entitled Is defense counsel
to this court. Is he in this court? argue the matter argue knowledge of
expected to so without report or statement?
the contents procedure
Requiring a “blind” such coun- upon it incumbent conscientious
make ruling since he every appeal such
sel to cause good if otherwise discover
cannot
therefor exists. contains ma- statement
III. What if the made with statements
terial inconsistent According
Braatz on cross-examination? not be majority this material
to the
available. material not
Suppose report contains arguably but on cross-examination
usable defendant, found in either
beneficial investigation? additional report divulging require such a situation
Wouldn’t
Westfall, Laird, Burington, Bovard & Heiny, City, Mason for appellant. Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellees Neil S. Harris Knapp. Gerald F. Shulman, Phelan, Tucker, Boyle & Mul- len, City, appellee University Athletic Club.
STUART, Justice. Plaintiff personal injuries sustained when in which car was riding she as a struck the parked rear end of a vehicle. brought She Harris, against driver car in which riding, she was stepfather Knapp, owner, its alleg- ing the driver’s intoxication and reckless- against ness. Action brought University City of Iowa Act, 129.2, Dramshop Code of At plaintiff’s case, Iowa. the close of trial court directed a verdict in favor of all grounds defendants on was not sufficient evidence to submit the question of recklessness the evidence established had as- sumed the risk of the driver’s intoxication as a matter law.
Defendant, Harris his friend Stuart Jacobson, were at Drake. students Both formerly University had attended By prearrangement came to Iowa. February exceptional it is City case where Jacobson fraternity party. Plain- verdict can be directed wanted to attend in favor of the having Harris proof. tiff had a date with burden of Lamaak Jacobson. Brown, a date with Patricia Grossman. 147 N.W. 915, 916; Sayre Andrews, City boys in Iowa about *3 The arrived 336, 344; 146 N.W.2d Reeves v. beer in the p. and drank some 3:30 m. Beekman, girls up at They picked the afternoon. 95, 99. Burge They Hall about went 8:30. Carley. plaintiff the home of a friend named Patricia boys Grossman told University they drinking went to the From there been beer in the afternoon. party fraternity Athletic where the Plaintiff saw Harris with a beer in as being Carley’s held. The accident occurred hand at was but didn’t know how much Burge returning to Hall after the they he split drank there. were Plaintiff one beer party. Carley’s. with her date at There was noth- ing appear- unusual about Harris’ driving, questions primary involve the suf- As ance they or actions before arrived at the generate jury ficiency of the evidence to Athletic Club. necessary questions, it will be stated appropriate assignment of At plaintiff detail under the the Athletic Club and her friends, date visited error. danced and watched a performed by fraternity skit pledges. She was not suffi- claim is made there I. No glass drank one of beer. did not Jacobson cient evidence of Harris’ intoxication drink much. spent Harris date and his question generate jury issue. evening most of the in the barroom which plaintiff also evidence whether there was separate was dance and floor she, condition that as was so advised of his tables. law, per- a matter of assumed in the automo- injury they when she rode At sonal no time while were at driving. bile he was did visit with Harris. She was occasions, close to him paid on two but assumption of risk The doctrine of particular no attention to him. four voluntary acceptance on the is based picture them had their together taken knowledge full danger by plaintiff with right they got intermission, after there. At deliber a more or less thereof and involves he introduced her to a mem- Jacobson be held logically “It cannot ate choice. ber band. There at that danger deliberately chosen a that one has time to indicate had had Harris merely ignorant which he is ous course of too much to drink. Harris She saw it.” known of have because he should and his date dance one three minute dance. Driftmier, Bohnsack v. Except when he had a dancing, he drink of scotch and water in his hand. many way knowing She had no how court’s affirm the trial In order to stagger drinks he did him had. She not see direct the motion to ruling sustained any or hear him slur his time words evidence ground, this a verdict on during evening. plain light most in the favorable viewed law, compel must, After a matter of the dance was over tiff as friends, had been got knew Harris her date with finding plaintiff visited they dangerous passed it was coats and the extent the bar on drinking to University car, way left to the him when Harris was there with a ride evi examine the drink waiting in his hand. After in the Club. We plaintiff’s minutes, plaintiff aware show car five sent tending to or ten dence mind condition, keeping in get Harris’ back in Harris and his ness of Jacobson testimony stayed inconsistent and the date. She car and did not tiff’s might the car. observe Harris as he walked to well have believed she knew of appreciated Harris’ condition and the dan- car, plain- Harris came When to the ger jury might riding him. The tiff, presence Harris, 'of Jacobson also have believed she did not know he was Grossman, Patsy asked if he Jacobson apprehensive intoxicated and was at most would drive. asked Harris if he Jacobson doing because she knew he had been some could he drive Harris said that displayed drinking. No one testified he okay and it was his car and symptoms usual Patsy drive. Plaintiff then asked if she except gayer that he was than louder They laughed teased her could drive. usual. There was showing no saw suggestion. about this acting way. *4 She wanted someone else to drive because appear Evidence that defendant did not apprehensive driving. she was about Harris holding important to be intoxicated was apprehensive was She because she knew he jury question a on was of risk evening in the bar been most of Brown, engendered in Lamaak v. 259 Iowa go and because and had to back in Jacobson 1324, 1327, 915, 916; 147 Bohnsack N.W.2d get leaving him when were and she Driftmier, v. 52 243 Iowa N.W. didn’t know how much he had had to drink. Inc., 79, 85; Mills, 243 Booth v. General just She would rather have had someone 206, 209, 561, 562; Agans 49 N.W.2d questioned else drive. She the amount Har- Mills, Inc., 978, 982, v. 242 Iowa General ris had had to drink. 242, 244, Jensen, Augusta 48 v. N.W.2d 697, 700, 385. In N.W.2d saying also “I was at She testified: plaintiff great all had a five of these cases I was doubtful whether he could drive opportunity to er know how much defend okay, I asked he Stuart and Stuart said was ant drank than here. In the cited judgment I on so relied Stuart’s be- when he cases was with defendant cause Stuart is a friend of mine and he was during drinking. was Here the contacts my They date.” left the Athletic also evening were limited. driving. with Harris None of the witnesses who testified Har- The record also shows staggered ris was intoxicated stated he had not slightly. knew Harris She slurred his words. Two witnesses based acted how he been around him to know opinion “unseemly” embrace familiarity Lack drinking. when he was They girl with a at bar. did not see plaintiff’s affecting was factor another him or hear talk. move Bohn- knowledge of Harris’ condition. Driftmier, supra, we sack v. considered “definitely One student testified he was the driver were guest fact that high” Pasty than talked louder usual. comparative strangers significant. to be testified about his con- duct that would alert a bartender that he have held In three cases we he was intoxicated. She did not believe law. a matter of established intoxicated, “high”. but was de- She Christensen, Christopherson v. being fined intoxication as unable to con- 146, 151; Reeves v. 648, 656, 140 N.W.2d ability way you your trol the walked and Beekman, 127 N.W.2d you pick up things have motor lost —when 99; Garrity Mangan, 232 Iowa v. control. 1193-1194, all guest associated the driver these cases excep- say one of the
We cannot this is both were while for several hours together have car- cases in which defendants tional com- here is not The evidence drinking. proving assumption the burden of ried proper distinction parable. believe We plain- true law. It is as a matter of recognizes The same line of between situations cases be made and should can participant equally complicity well active established rule of guest is an which the participates have under which a and must who drinking activities in the during drinking drank and activities host known how much injuring party case. becomes intoxicated cannot instant facts disclosed in- dramshop
recover under act for juries a result such intoxi- sustained as recognize We must Sullivan, supra, v. cation. Cookinham host likely ride with a refuse to not Marrocco, supra, Quatrano A.2d at merely apprehensive that because Christian, 639; Osinger v. 208 N.E.2d at Such too much to drink. host have 874-875; Taylor supra, 193 N.E.2d knowledge not full apprehension does show supra, Hughes, N.E.2d at James assump danger so as constitute 171-172; Wicker, N.E.2d at supra, law. The evi a matter tion of risk as Kangas (1964), 372 Mich. Suchorski so here show dence 803, 804-805. drinking ac closely with Harris’ associated known much must have how tivities she ex two reasons for rule support he drank. The evidence pressed in that one cannot the cases are obviously present Harris did finding person profit wrong from his own and a question of appearance. intoxicated drinking activities participates *5 jury. the assumption of person pro not an entitled to is innocent dramshop act. tection under the assumption of risk II. Plaintiff contends person which is not available liquors, * * * shall, by selling affirmative defense under of son, of authority ** action * * * provides: who shall cause in of * consequence on ** the intoxication this There to the Athletic Club as person, [*] “Every against any question. be [*] is a any intoxicating [*] injured of shall surprising the ** section have a of such person in * person dearth 129.2, other right per- Ward wrongs mitted to recover from another Kearney v. 563, substance. Rafferty own act caused Early Neither her intoxicated husband 564, v. Iowa cases v. we held Thompson, line of authorities Fitzgerald, 43 Iowa Buckman, injuries Engleken Hilger, the plaintiff recognized inflicted intoxication”. v. when was not apply damages this rule on 580, she 588, 195, 43 Iowa herself by 585. “per- See: 198; 592; her the in factual here. this evidence situation Under sup The cited authorities part jury the could find no contributory port of her contention hold causing the driver become intoxicated under defense to an action negligence is no voluntarily and willingly but assent did dramshop act as action is based the such knowing with intoxicated ride he was statutory a breach appreciated perils to which she was require showing negligence. Cook a thereby claims subjecting herself. Plaintiff 193, Conn.Sup. 23 (1962), inham v. Sullivan recovery as finding not bar her such would 841; 840, Quatrano v. Marrocco A.2d 179 assumption risk is no defense 632, 1, Ill.App.2d 208 N.E.2d (1965), 61 dramshop act. brought under 638; Ill. 43 (1963), Osinger Christian 875; 872, Taylor 480, App.2d 193 N.E.2d deciding point cases have been No Ill.App.2d 149 Hughes 17 (1958), ques and we cited have found none. (1941), Wicker N.E.2d James raised, decided, tion but in Cook Ill.App. 33 N.E.2d 309 Sullivan, supra, at 841. inham v. 179 A.2d Co. Merchants Bank & Trust Genesee However, assumption appears to it us that 383, 134 (1965), 375 Mich. N.W.2d a Bourrie risk should be available to defendant dramshop under the act. 713, 716. situation, dangerous assumption creating limited of risk a condition or have not
We gen- negligence cases which continues after defendant’s conduct master-servant injured I show has If cited in division terminated. erally. The cases danger, defense before he discovers the defend- proper considered a we have Statute, however, When, ant liable Guest will be to him. the Iowa 321.494, contributory negligence danger, discovers the when Driftmier, it, proceeds voluntarily Bohnsack v. the face no defense. recovery by N.W.2d barred his assumption of we referred to risk.” Bohnsack maxim, application risk as “an Under evidence here the could injuria to which volenti non fit —‘That find facts which these would fit within person not esteemed law an assents is concepts assumption of such risk and injury.’ (Citations).” defense be available to at 84. N.W.2d Club unless there is dram- something in the assump- shop prevents Corpus presents act which use or Secundum its indicates Juris subject pur- its use be inconsistent tion of risk under the broad pose torts, of the enactment. includes violation statutory duty, 926 in Torts § C.J.S. We find suggesting statute following manner: injured party that an should be allowed been, regardless may be, “The doctrine and has to recover of his conduct. person complicity doctrine of recognition stated in terms of in that is a assent injured by voluntarily right fact that the submitting to known limited to to recover is innocent dangers persons. knowingly with a realization of One who rides qualification rights hardly to a drunken assents driver can appreciated that category. included in an extent coterminous with the We find no statu- assent, and, tory application peril, can- bar to as a result of such *6 not, statute, the a tort on of risk. in absence of base produced by danger.
harms the assumed assump- We do not believe the defense of ” * * * 12, 931. Torts § C.J.S. tion of risk interfere purpose with the of the statute. “The dramshop act is de- of the Restatement Section 496C signed to fulfill a need in discipline for the Torts, Law, Second, states: liquor traffic provide remedy of and to a (2), Except as in “(1) stated Subsection for evils and dangers which from flow a risk of fully a understands Osinger Christian, such traffic.” supra, * * * by de- caused harm to himself danger N.E.2d 875. The evil and * * * never- conduct and who fendant’s we person are concerned with here is that a or re- voluntarily enter theless chooses to in an intoxicated might condition uninten- * ** risk, that of main within the area tionally, but as a result of his his will- circumstances that manifest under injure party. some other do not We be- it, to recover ingness accept to not is entitled lieve it contributes to the fulfillment of that for harm within risk. purpose if injured party given the is responsibility no for his own welfare. (1) The stated in “(2) rule Subsection Theoretically, least, as person might a be which an apply any in does situation more willing submit danger to himself to the risk would express agreement accept the to of riding an person if he intoxicated policy.” contrary public be as to invalid could a retain of action under the cause forth the f dramshop Comment 496C sets act. analogous The situation is § type here. “In confronting situation us to the of defense complicity. Osinger of situation, Christian, defendant type supra, the third the of the court “Al- said: already plaintiff, has lowing violated his who participates to one causing the any in- event we are unable to see enhance recover would to intoxication ” ** * liability the of logical distinction between the suppress the mischief stead of guest driver a under the intoxicated to restrict. statute seeks to statute, Iowa, guest of 321.494 Code public policy, Restate- question the of On liability of and the the who served the Law, 2d, com- states Torts ment of liquor driver to same under the consider- same j under 496C: “The ment § act, dramshop section 129.2 Code of Iowa. of public policy, protection ations of driver, the defense is available to the If persons unfair particular against of classes held, as we have be should also available may be advantage or which unreasonable dramshop a defendant under act. courts them, have led the taken which of agree- express invalidate some situations to dramshop A defendant under the act risk, em- e. assumption ments for of [i. urge is of entitled to defense relationship] lead ployer-employee risk, we is hold in division I plain- particular that a as between decision jury in this case. defendants, sit- particular or in tiffs III. The trial court held was not uations, is not implied sufficient evidence of recklessness en- a defense.” recognized as question gender on that issue. A de- not the situation here. Such is ‘ * * * “Recklessness more than no dramshop act has fendant under ordinary want of care. It must be shown knowingly and advantage over one who operator that used vehicle no driver. willingly rides with drunken care, coupled disregard for con- pro- for his defense need not be barred recklessness, sequences, and to constitute himself protect He as able tection. the acts must be such to manifest a heed- ordinary plaintiff danger as the from disregard for less indifference to the or assump- subjected possible defense rights requires It of others. actual knowl- tion risk. existing presence edge danger or the operator danger so obvious that dramshop that act im fact proceeded have knowledge of it poses liability prevent de strict without heed concern for the con- assumption of risk raising fendant sequences, and the conduct Harper Law James, The as a defense. operator vehicle is such 804, 14.5; page Restate Torts, Vol. § consequences are such that actions Torts, ment of § *7 injury probability than the rather Baker, possibility’. Lewis v. Assumption risk kind “is a distinctive Allbee 104 N.W.2d 577.” the contributory negligence, in which 712, 714, Berry, Iowa voluntarily knows the 231. it; accepts it has differ been held to merely contributory negligence from require persistent We evidence fails minor danger discover several conduct to care with course of show no respects. Thus Shoop consequences. disregard governed by subjective standard Hubbard, himself, contributory whereas 51, 53. objective negligence is measured Assump- standard of a man. reasonable issue, pertinent The evidence to this risk, it is called tion of whether or not plain- light viewed most favorable recovery contributory negligence, will bar tiff, follows. liability, in an action founded on strict negligence plaintiff’s ordinary where the Harris parking When drove out Torts, page City will not.” Prosser on lot and he turned toward made § speed squeal his tires and reached the stop sign. I during wasn’t scared to death “As per date 70 miles hour. His testified: that time I don’t believe. I think he went lot, driving parking we left Nick was through stop sign. my To best perfectly normal and we turned left out knowledge, he my did. To the best of driving parking and I noticed he was lot I saying recollection remember someone speedometer very fast and 1 looked at the painted about sign over and I don’t I around miles noticed was recall stopping. him Iwhy That’s formed said, ‘Nick, you slow why hour and I don’t my opinion. I stop sign knew there awas respond, did And he didn’t but he down?’ there. I stopping don’t recall him at the speed slow down somewhat and his stop sign. I don’t know whether I could up way all say fluctuate down specifically that I driving him remember slow stop sign. I first told him to through. When I remember saying them that and say down, he went down I would 40 or I don’t stopping. recall him up go then miles hour and he would back “I present was previously and I have again. speeds you These that I have told Patsy heard say stop stop sign he did at the looking speedometer about are at the and I say have heard Mr. Harris that he very going in the when he beginning was stopped at stop sign as Mr. did Jacobson. fast and then after he slowed down know, again. you then I at it didn’t look “Q. So, people out of the four only speed I was concerned about the car the say stopped other three all he and as straight and driving. driving He was I your testimony understand that it’s not fine.” in the car made further No one he stop, simply you didn’t but that don’t complaint speed about the at which he was recall him having stopped, is that correct? driving. A. I don’t recall having stopped I only also was the one that wasn’t drink- stop sign There between was one ing. place Athletic and the of the accident. recalled whether Patsy Neither “Q. You were the that one wasn’t stopped stop sign, at the but Well, drinking? A. I had one drink. on direct didn’t think he did. She testified “Prior that time I did drink on oc- examination: from the “The distance casion. stop is about a sign Club to this half a Harris car mile. I do recall the “Patsy was drinking and Jacobson stopping stop sign. at that I some- believe drinking. I don’t know how much he had stop sign in the car one said ‘or to drink. He didn’t have very much to * * * I painted something that’. like drink. I was with him from 8:30 to 12:30 gathered probably that it meant but I don’t exactly know how much he had stop. didn’t have I observed to drink. We socializing were dif- sign paint- stop indicated that the ferent people part of the time. I know ed over.” basically how much he had to I drink. don’t believe he very much to drink.”
On cross-examination she testified: *8 “Q. you they Did still have those doubts As were proceeding point toward the you after he were in the car? A. When accident Harris driving was about doubt, started per out fast I had the but then 35 miles hour per in a 25 mile hour Patsy speed when he told him slow down and to zone. The being car was driven on did slow right down I wasn’t worried. side of the road and was not swerving from side to side.
“I going was worried when we were out Patsy parking lot and until told Plaintiff parked saw the they cars when to slow down and he slowed down. After were a block and a half away. to two blocks he slowed they down I When wasn’t worried were about feet until from the course, We, jury. can- for the submitted to the yelled: out “Watch
parked cars she attempt apply anticipate not and do not to evidence did Harris parked car”. forth this issue bring defendants on change the course attempt to brakes or parked on hit retrial. they before the vehicle
vehicle. a jury As we hold the evidence raised question as Harris’ recklessness and were so to waiting until explained
She assumption plaintiff’s attention to the intoxication calling his close before intoxication, case is re- parked cars as follows: versed remanded for new trial on all not con- “Q. sat there and you And issues. parked these cars stantly, but saw before, Harris drive let Mr. Reversed remanded. right blocks two away feet and 75 hour along 35 miles going you like he was suddenly it looked GARFIELD, J.,C. and SNELL and yelled out for Watch you them and to hit MOORE, JJ., opinion. concur in the previously that you A. told
the car’? I trying to was whether he I know didn’t RAWLINGS, LeGRAND, BECKER and that he would thought I tease or not and me JJ., dissent from II. Division do that to me probably people have—I before, lately once. even MASON, JJ., part. LARSON take no A. I you tease ? “Q. trying He was RAWLINGS, (dissenting Justice I didn’t doing. didn’t know what part). pull over going he was know whether pull going to park or whether he Being agree reasoning with the unable go I know back outside. didn’t over or conclusion reached in II of the Division what doing. I ask him he was didn’t what majority opinion availability regarding doing.” he was of risk doctrine defend- Club,
ant-Athletic
I therefore concur in
opinion
part,
part.
The court
dissent in
Harris’
evidence, including
evidence
I.
It is
majority
me
evident the
here
to raise
sufficient
again unjustifiably
extends
Kauzlarich
to his recklessness.1
question as
when other
courts are more realisti-
Fitzwater,
1073,
1067,
125 N.W.
cally
concept.
abandoning I am satis-
Strubel,
208;
243 Iowa
Hahn
strictly
fied it
in any
should
event be
33.
447, 52 N.W.2d
limited to those cases in which
and defendant stand in a
rela-
consensual
Defendant
IV.
e.,
other,
tionship to
i.
host-guest,
each
mas-
complicity.
guilty
claims
ter-servant, principal-agent cases, or where
II
in division
discussed
The doctrine was
legally accepta-
exists
virtue
some
evidence
recognized in Iowa.
and is
express
ble
agreement.
any manner
show she
here
in support of
foregoing
See
Owens
the activities
participated in
Co.,
v. Union Pac. R.
evidence
U.S.
If this
Harris
intoxicated.
became
1271, 1274,
pre
63 S.Ct.
L.Ed.
dissent
defendants
when
uncontested
remains
Peterson,
in Wright
not be
case,
this issue
sent
mier,
79; Long
seriously ques
J.,
Snell,
writer and
Pearce,
sufficiency
en
evidence to
tion the
*9
Harvey
Clark,
729,
v.
question
un
Iowa
N.W.
232
6
gender
recklessness
v. Mom
144,
1141;
cases,
143 A.L.R.
formal
Martin
not dissent
but do
der our
1158,
yer,
Cutkomp,
230
ly.
Torts, Ed., regulated section See also Crane Single Third 307, 304, 98, Campbell, 245 38 S.Ct. 67, 450, U.S. page 455-461. 99, 304; L.Ed. Intoxicating 62 48 C.J.S. agree I cannot II. Furthermore 164; Liquors 33, page Am.Jur., and 30 § there is finding to the effect majority’s 21, Intoxicating Liquors, page section purposes with the nothing inconsistent acts, then, summary are concerned with we damage or civil shop our dram promote legislation designed public of risk to application attendant health, welfare, safety peace, morals as a defense. by creating a statutory right of action un- outset, At the defendant-Athletic Cluh’s to injured known the common And an law. statutory any, liability, if is result of party, brought third in an under such action enactment, counterpart being no legislative permitted enactments is recov- not a any doctrine. It was common law ery supplier’s regard without to fault give law sell or tort at either to common negligence. follows, another. It liquor thus alcoholic to entirely regard foregoing see Wende serve to create an With shop dram acts Russell, previously lin v. 147 statutory cause N.W.2d new 188; Dwyer, jurispru- Cal.App.2d Hitson Anglo-American 61 unknown to 952; Grady Henry 143 P.2d Hotel Co. v. dence. 329; Sturgis, Ga.App. 70 28 S.E.2d liabil- general governing law tort Unlike Doglio, Howlett v. 402 Ill. 83 N.E.2d of the ity,. wrongdoing part fault or on the 790; Nathan, 6 A.L.R.2d 10 Dillon is not shop dram essential offender 136; Ill.App.2d 135 N.E.2d Sworski words, liability. is not negligence In other 778; Colman, 204 Minn. 283 N.W. liability recovery, prerequisite Jorda, 665; Iszler v. (N.D.), 80 N.W.2d imposed than the one upon persons other Gradsky, Com.Pl., Christoff Ohio Resultantly an directly injury. causing 586; 172; N.E.2d 13 Drake L.Rev. injured from the party can recover third 175; Univ. of Ill.L.Forum Univ. pro- party statute has violating 116; 103; Ill.L.Forum 38 N.D.L.Rev. intoxicating party vided a second Vill.L.Rev. A.L.R.3d point even beverages to the 430-436, Intoxicating Liquors §§ C.J.S. had no though injured third has pages 716-720. the first dealings direct or association with On the other hand the of risk party dispenser. hybrid doctrine is a judicial invention. As Professor stated in 61 Yale Law James Actually, by provisions evidenced “(1) 141: primary In its sense the Journal acts, shop purpose of both our dram plaintiff’s assumption a risk is supply excessively is make those who counterpart of duty the defendant’s lack of another, for re- intoxicants liable protect that from risk. sulting damage. such a case not recover for Moreover, shop general, injury all dram acts in even though quite he was reason- as demonstrated Code 123.1 are able in encountering the caused it. “ * * * enacted as: exercise of Volenti non fit injuria. (2) A state, police power protection may also be said to assume risk created welfare, health, peace, morals defendant’s him, breach of towards safety state, people of the all its he deliberately when chooses to encounter provisions liberally case, shall be construed that risk. In such a except possibly accomplishment and it purpose, cases, of that master and servant public policy is declared to be barred recovery only if he was liquors traffic in affected alcoholic so in encountering unreasonable the risk *10 voluntary the character of a form This is the circumstances. sup- (Emphasis be the risk.” of contributory negligence.” of plied.) availability of as- considering the When Upon it to foregoing the basis of the is in a dram as a defense
sumption
risk
of
in
apparent,
we are me
absence of voluntariness
action, it
be remembered
shop
must
damaged
the
third
party
relationship
a
between
injured third
with an
concerned
hand,
party
party
and the first
or
on one
ordinarily
no association
had'
has
other,
supplier
pre-
of intoxicants on
supplier.
dealings
defendant
any application
cludes
of
of
in
in mind this statement
With
supplier
risk as a
defense.
Torts, is
of
Harper
James, The Law
statutory
as
are
cause
Dealing we
with a
persuasive. These au-
pertinent and
both
duty
to
21.1,
of action
unknown
the common
1165state: “Not
page
at
thors
section
law,
predicated
finding
negli-
on a
of
voluntary
the risk but
reasonableness of
gence
injured
third
between
gist of
is the
character of the association
intoxicants,
supplier
not so
of
I would
assumption of risk ré-
True
the defense.
assumption of
broaden or extend the
risk
the common
of
flects the individualism
doctrine as to make it available in an
felt that
relationships
it was
in
wherein
law
brought under the
many
statute here involved.
against
self-protection
of
partici-
primarily on each
hazards rested
phase
Pursuing
subject
III.
duty by one to
pant.
negation
a
of
It is
step, majority
more
states we have
one
affirmatively
the other’s
look out
assumption of risk
held the
doctrine
safety.
applicable
guest
to
our
actions under
stat-
ute,
apply
it
to dram
therefore must now
as-
concept
“It is
then that
clear
shop
agree
guest may
a
assume
actions. I
primary
sense
sumption
intoxication of
the risk
recklessness or
where
a situation
not to
considered
Driftmier, 243
a host
Bohnsack
driver.
duty towards
has
a
breached
defendant
383, 392,
guest
tory recovery ground be had upon plaintiff, basis being one damages suppliers from of intoxicants for protection the class for whose the law was enacted, resulting furnishing of such from assumed risk. beverages. support of these see views Narramore otherwise, pre- Cleveland, C., Co., Cir.),
Stated our statute L. (6 C. R. & St. 298, by 68, reason of recovery cludes the host 96 L.R.A. 300-305, F. 48 cert. den. 1021, dram negligence Conversely, 724, alone. our 175 U.S. 20 S.Ct. 44 L.Ed. shop statutory re- provide McCormick, acts basis Shahinian Cal.2d covery 377, 383-385; regard negligence. Cal.Rptr. without 381 P.2d comparable erroneous Casey Atwater, are and an Conn.Super. 225, two not analogy issue Hurley, be decisive A.2d L’Heureux v. 117 Conn. 8, 10-12; now 168 A. before us. Powless v. Milwaukee County, 6 Wis.2d 188- Furthermore, sec- again IV. submit I 191; 56 Master and Servant 369- §§ C.J.S. Iowa, 129.2, tions and Code of 123.95 1169-1172; pages and 65A C.J.S. acts, shop commonly to as dram referred Negligence 174(7), page 303. § socially were for the beneficial enacted gift purpose deterring the sale or join I majority in reversing, but any person point such intoxicants to hold assumption of risk is not avail- Some individual intoxicated. becomes able as defense to standing one legislation position of this courts have even held defendant in brought action Univ. penal recovery nature is character. damages pursu- and Ill.L.Forum, page ant either shop of our dram acts. 431, page Intoxicating Liquors § C.J.S. any event, Code sections 123.95 LeGRAND, BECKER and JJ., join 129.2, observed, previously stand must, as this dissent. policy legislative public aas declaration of society. protection for the accordingly persuaded assumption
I am by
of risk as a to an an in- defense
jured party, by third caused an intoxicated party,
second was in- which intoxication gift by
duced sale or of intoxicants serve, party, statute violating Marcella K. SCHMITT and the Farmers Na- effect, unduly erode the undermine City, tional Bank of Webster Administra- aim, Dorothy tors of the very Estates objective our purpose T. Schmitt Schmitt, Deceased, Theodore G. both shop dram acts. Appellees, reason, If majority other no
holding hand, on the issue is not to me LINES, INC., JENKINS TRUCK Violet H. acceptable contrary public it in that Sorge, Earlyn Quirren, Appellants. W. policy. No. 53082. submit, Finally shop Supreme
V. our acts I dram Court of Iowa. upon impose coming serve to all within Sept. 5, 1969. statutory duty. purview a restrictive And, by law since the so fastened
upon defendant-Athletic Club constitutes public, obligation to could By plaintiff.
waived token the same defend
this defendant cannot be allowed to