James FUHRMAN and Sharon Fuhrman, Husband and Wife, Edward Gehring and Marianne Gehring, Husband and Wife, Donald L. Delong and Lucile M. Delong, Husband and Wife, and Howard C. Williams and Jo Ann Williams, Husband and Wife, Appellants, v. TOTAL PETROLEUM, INC., Appellee, v. Diane REIFENSTAHL, Third-Party Defendant.
No. 85-1564
Supreme Court of Iowa
Jan. 14, 1987
The record on this point speaks for itself. Counsel‘s deposition examination of the girls was lengthy, searching, and detailed, characteristic of cross-examination designed to impeach and discredit their testimony. Although the defendant was not given an opportunity to read the depositions (in fact the record reveals that his impaired eyesight would have precluded him from doing so), their impact was discussed with him by counsel and at no time did defendant express a desire to question the girls further. At trial, when the stipulation of the parties was made part of the record in his presence, defendant neither questioned nor objected to the proposed procedure.
Finally, we are persuaded that defendant‘s claim of prejudice is speculative at best. There is no evidence in this record to support defendant‘s claim that but for trial counsel‘s alleged unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. Trial counsel testified at the post-trial hearing that he had no reason to believe the victims “would have deviated from their prior testimony.” Neither has defendant suggested any possible change in testimony. He baldly asserts that had he been more familiar with the girls’ testimony, he would have refuted their allegations by persuading the court that he was not at home when the alleged incidents took place. But our de novo review of the trial transcript reveals that this was in fact the essence of his testimony at trial, an explanation found unconvincing by the trial court.
In summary, we are satisfied that counsel‘s strategic choice of allowing bare transcripts to be considered by the court in lieu of the live testimony of the defendant‘s young granddaughters was a sound tactical decision well within the range of reasonable professional competence expected from an attorney defending a client against a claim of sexual abuse. We find no error by the trial court in allowing the introduction of the depositions upon the stipulation of counsel.
DECISION OF COURT OF APPEALS VACATED AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Thomas D. Hobart of Meardon, Sueppel, Downer & Hayes, Iowa City, and Thomas Wynia, Story City, for appellants.
Raymond R. Stefani and Richard A. Stefani of Gray, Stefani & Mitvalsky, Cedar Rapids, for appellee.
HARRIS, Justice.
Few problems in recent years have so divided this court as those which relate to tort liability based on the furnishing of intoxicants, especially when the facts fall outside of Iowa‘s dramshop statute. This appeal presents another request that we fashion a common law tort theory to extend the right of recovery beyond the dramshop statute. Stated another way, the question here is whether the legislature, in enacting the dramshop law, intended to preempt the field and set the metes and bounds of recovery rights in tort suits based on the sale or furnishing of intoxicants. We recently faced the same question in Connolly v. Conlan, 371 N.W.2d 832 (Iowa 1985). As has become almost traditional in questions on this troublesome point, we were sharply divided, but our holding was certainly clear:
[T]he legislature expressly kept licensees and permittees under the dram shop act. In doing so, it struck for them a balance: They would remain strictly liable under the acts and would continue to be compelled to post financial responsibility. But, under the scheme, their liability was limited to serving persons “while he or she is intoxicated” or “to the point where he or she is intoxicated.” The liability ended there. Social policies might support the expanded liability suggested by the plaintiffs. But the legislature was not persuaded by them, and we are bound to adhere to the limitations of the legislative plan.
Less than three months after Connolly was filed the trial court here was presented with a case which was controlled by it. Under the circumstances of course the trial judge had only two options; she could either apply Connolly or else refuse to. Connolly was applied and the sole question on appeal is whether this application was error. It was error only if we change our minds and overrule Connolly, which we are not inclined to do.
By reason of the posture of this appeal the facts alleged by plaintiffs can be stated succinctly. The plaintiffs were injured when their car collided with one driven by a seventeen-year-old juvenile, Diane Moss Reifenstahl (a third-party defendant who is not involved in this appeal). It is alleged that Reifenstahl was intoxicated after having been sold beer by defendant Total Petroleum, Inc. Plaintiffs however admit they have no evidence that Reifenstahl was or became intoxicated at the time the beer was purchased or consumed at Total. After purchasing the beer Reifenstahl left the store and drove to a nearby park where the beer was consumed. It was after this that she resumed driving and the accident occurred. The facts therefore fall outside the dramshop law because it is not claimed that, while on the premises, Reifenstahl was or became intoxicated.
For three reasons we adhere to our Connolly decision.
I. We think Connolly was rightly decided. The question is not whether we privately agree with the legislative parameters of the dramshop act. The question rather is whether the legislature did in fact set them. In Connolly we cited the legislative history of the act as first traced in Nelson v. Restaurants of Iowa, Inc., 338 N.W.2d 881, 883-84 (Iowa 1983). That history led us to conclude that the legislature preempted the field of dramshop torts. We adhere to the view that the legislature deliberately prescribed not only the extent but also the limits of dramshop liability.
II. The most recent legislation on the subject, enacted since the filing of our Connolly opinion, does not signal legislative surrender to judicial proclivities to innovate in the area of dramshop liability.
In Mincks we created a common law right of recovery against social hosts, who of course are not covered under the statutory dramshop scheme. We did so by appending the recovery to a criminal provision in the beer and liquor control act. See
The legislative response was prompt and its message was clear.
a. A person other than a person required to hold a license or permit under this chapter who dispenses or gives an alcoholic beverage, wine, or beer in violation of this subsection is not civilly liable to an injured person or the estate of a person for injuries inflicted on that person as a result of intoxication by the consumer of the alcoholic beverage, wine, or beer.
b. The general assembly declares that this subsection shall be interpreted so that the holding of Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985) is abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, wine, or beer rather than the serving of alcoholic beverages, wine, or beer as the proximate cause of injury inflicted upon another by an intoxicated person.
Plaintiffs’ appeal in the present case is an invitation for us to undertake another
The intervening legislative message demands rejection, not acceptance, of plaintiffs’ theory. The amendment announces and stresses a legislative policy of reverting to our “prior judicial interpretation” which placed tort liability on the consumer of the alcohol, not on the furnisher. See Cowman v. Hansen, 250 Iowa 358, 368, 92 N.W.2d 682, 687 (1958).
III. Finally, under the doctrine of stare decisis, we should now be greatly less inclined to extend liability than we were in Connolly. It is sometimes contended that frequent shifts and changes in the law, especially as given in appellate opinions, are to be expected in matters upon which we so strongly and obviously disagree and that a lawyer or judge accepts a closely divided majority decision at considerable peril. We often reexamine prior precedents and occasionally change them. There nevertheless comes a point at which it is clearly in the public interest for precedents to have a certain reliability. American appellate decisions should not be, as a recent critic somewhat cynically charged, entirely biodegradable. In his epic addresses on “The Nature of the Judicial Process,” Benjamin N. Cardozo said:
[T]he judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own idea of beauty or of goodness. He is to draw his inspiration from consecrated principles.
When we refuse to adhere to our own recent precedents it adds another dimension to the weighty problems encountered by the bench and bar.
The trial court was correct in applying our holding in Connolly.
IV. Plaintiffs also contend that
The legislative plan calls for a carefully limited class of persons to whom recovery rights were given. Robinson v. Bognanno, 213 N.W.2d 530, 532 (Iowa 1973). The purpose of the act was to impose strict liability for a tort which would be extremely difficult to prove by traditional methods. It was rational for the legislature to limit this strict liability to situations where the operator served persons who were or who thereby became intoxicated. Seivert v. Resnick, 342 N.W.2d 484, 485 (Iowa 1984).
AFFIRMED.
All justices concur except SCHULTZ, J., REYNOLDSON, C.J., LARSON and LAVORATO, JJ., who dissent.
SCHULTZ, Justice (dissenting).
I believe that this appeal makes a simple and fair request. Plaintiffs ask that they be afforded the right to pursue a common law negligence action against a licensed commercial seller of beer, based on an illegal act not covered under our dram shop statute. As I will point out later, we have approved such an action against an employee of a state operated liquor store and against an employee of a tavern keeper. The trial court and the majority rely upon our ruling in Connolly v. Conlan, 371 N.W.2d 832 (Iowa 1985) to afford a licensee, who profits from the illegal sale, a defense not available to the employee. The majority has perceived an intent by the legislature in enacting the dram shop statute to preempt common law liability for an illegal sale that falls outside the proscrip
Until 1977, our common law followed what was the general rule in most jurisdictions: that no negligence action existed against a supplier of intoxicants independent of statutory provisions for dram shop liability. The rule was based on the premise that a sale or gift of intoxicants could not be the proximate cause of injuries inflicted by the intoxicated recipient on a third party; causation flowed from the consumption, rather than the sale, of the intoxicant. See Cowman v. Hansen, 250 Iowa 358, 368, 92 N.W.2d 682, 687 (1958).
This rule of no causation from the sale of intoxicants was judicially overruled in Lewis v. State, 256 N.W.2d 181, 191-92 (Iowa 1977). In Lewis the plaintiff, injured in an accident with an intoxicated minor, sued a state liquor commission employee, asserting that the action was a result of a negligent and wrongful sale of intoxicating liquors to the minor.1 We held that “the sale or furnishing of intoxicating liquor in violation of
Following Lewis, our case law addressing common law actions arising from the distribution of liquor and beer has been marked by disagreement among the members of this court. We have never overturned the rules announced in Lewis by a unanimous court, but have differed as to the extent that our dram shop provision,
Every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support by any intoxicated person or resulting from the intoxication of any such person, shall have a right of action, severally or jointly, against any licensee or permittee, who shall sell or give any beer or intoxicating liquor to any such person while the person is intoxicated, or serve any such person to a point where such person is intoxicated, for all damages actually sustained.
I now examine our cases since Lewis that are germane to the issues presented here.
In Snyder v. Davenport, 323 N.W.2d 225 (Iowa 1982), plaintiff sought a common law recovery for an illegal sale to an intoxicated person. We held that the dram shop act provided a plaintiff‘s exclusive remedy because the grounds of liability in that case were identical to the grounds enumerated
In Haafke v. Mitchell, 347 N.W.2d 381 (Iowa 1984), the question reserved in Snyder remained unanswered, although the issue of common law liability by a licensee for illegal sale to a minor was presented. Four members of our court voted to extend the Lewis holding, allowing for common law liability of the licensee for acts not included in
We addressed another claim against a licensee arising from an employee‘s action other than an illegal sale in Golden v. O‘Neill, 366 N.W.2d 178 (Iowa 1985). We rejected defendant‘s claim of preemption by the dram shop statute, and held that a bar owner may be held liable for assault and battery by an employee, arising out of a physical attack by a bartender, as well as for negligence both in not providing safe premises and in employing persons with a propensity to injure people when consuming intoxicants. We held that
The predicament we face, caused by our recognition of common law liability for damage caused by an illegal dispensation of intoxicants on one hand and our rejection of that liability in certain situations (due to statutory preemption when licensed vendors are involved) on the other hand, is best illustrated by the next two cases I discuss. In Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985), a 5-4 decision, we extended the Lewis doctrine concerning common law negligence and causation by holding that a social host may be held liable for common law negligence arising from dispensing intoxicants to an intoxicated person. Id. at 231. Shortly thereafter, in Connolly v. Conlan, 371 N.W.2d 832 (Iowa 1985), by a 5-4 ruling we refused to extend the Haafke liability to a licensee for the dispensation of liquor or beer to a minor. Id. at 833. We held that, under our statutory scheme, “their liability was limited to serving persons ‘while he or she is intoxicated’ or ‘to the point where he or she is intoxicated.’ The liability ended there.” Id.
This summary of our holdings outside the parameters of the dram shop act is revealing. A licensee or permittee may be liable for the assault and battery of a patron by an employee and for negligence in providing unsafe premises for patrons by hiring employees who have vicious tendencies when drinking. On the other hand, such vendor is not civilly responsible in a negligence action for committing the criminal act of sale of intoxicants to minors. While the licensee or permittee avoids civil liability for sales to minors, the licensee‘s employee, who may be acting under the direct orders of the employer, is liable for such a sale, as is a state liquor employee and presumably any other person who has violated the law.2 It is ironic that the one
Notes
a. A person other than a person required to hold a license or permit under this chapter who dispenses or gives an alcoholic beverage, wine, or beer in violation of this subsection is not civilly liable to an injured person or the
estate of a person for injuries inflicted on that person as a result of intoxication by the consumer of the alcoholic beverage, wine, or beer.
b. The general assembly declares that this subsection shall be interpreted so that the holding of Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985) is abrogated in favor of prior
Our seemingly inequitable and conflicting results arise from difficult problems created in part by less than perfect legislation. In an obvious attempt to protect the public from injuries, our legislature has provided criminal sanctions for two evils: the first is the sale of intoxicants to intoxicated persons or sale to persons to the point of intoxication; the second is sale to minors. The results of either of these acts are not only harmful to the persons involved, but may have disastrous consequences to any person who comes in contact with either the inebriated adult or the minor who, predictably, becomes inebriated because of the sale. The legislature has provided a civil solution to only one of the two evils by the dram shop section. It provides no remedy for a person injured because beer or liquor is dispensed to a minor by a licensee. The conflicting messages from this legislation have caused our dilemma. Construing
We are not alone in our circuitous and unsettled approach to this problem. In our neighbor state of Wisconsin, the court at one time held that the dram shop act preempted the tort field as to vendors, and that, outside the statute, the common law rule was one of no liability. Farmers Mut. Auto. Ins. Co. v. Gast, 17 Wis.2d 344, 117 N.W.2d 347, 350 (1962). They soon altered their stance in Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970), when they declined to consider the preemption issue; they determined that public policy was the controlling consideration, but that the vendor was not liable on a public policy basis. Id., 176 N.W.2d at 570-72. They addressed the problem again in Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178 (1979), holding that the policy reasons behind the common law rule of no liability still existed, and that any change in the law with regard to this policy question was better dealt with by the legislature. Id., 280 N.W.2d at 180-81. In Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984), however, the Wisconsin court decided that it had the authority to change, and did change, the common law to create a cause of action against the vendor for sale of intoxicants to minors. Id., 350 N.W.2d at 112. The Wisconsin court again rejected a contention that its dram shop statute, which was not applicable to the particular sale in that case, preempted the field of tort liability against a tavern keeper, stating that Garcia had overruled sub silentio the preemption rationale of Gast. Id., 350 N.W.2d at 113-15. They applied this ruling to social hosts in Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857, 861 (1985), and Harmann v. Hadley, 128 Wis.2d 371, 382 N.W.2d 673, 676 (1986). After groping with the problem for several years, the Wisconsin court has shifted its views and amended its common law to provide an injured party not covered under its dram shop act a cause of action against a vendor for an illegal sale of liquor to a minor, when the sale results in the plaintiff‘s injury. I too believe that it is our responsibility to create and apply common law principles when the legislature has not addressed a problem under the dram shop statute.
judicial interpretation finding the consumption of alcoholic beverages, wine, or beer rather than the serving of alcoholic beverages, wine, or beer as the proximate cause of injury inflicted upon another by an intoxicated person.
Other courts have addressed, with mixed results, the question whether their dram shop acts preempt any common law causes of action for negligence in the illegal sale of liquor. The Vermont Supreme Court, for example, has rejected the principle of preemption totally and held that, in addition to the dram shop act, there exists a common law cause of action for negligence. Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986). The court reasoned that the dram shop act, in providing a cause of action in strict liability, did not preempt the remedy under common law, because the strict liability does not address a cause of action in negligence and cannot be said to foreclose a common law action that is not repugnant to the state‘s constitution or laws. Id., 510 A.2d at 1303. The Illinois Supreme Court, in contrast, took the position that the dram shop act provides the exclusive remedy for all sales by licensees, and thus no common law action may be maintained. See, e.g., Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153, 157 (1961).
A number of additional jurisdictions have held their dram shop acts to be exclusive remedies against the vendors; however, their dram shop statutes, unlike ours, are broad enough to allow liability for all illegal selling of intoxicants, including sale to minors. See, e.g., Browder v. International Fidelity Ins. Co., 413 Mich. 603, 321 N.W.2d 668, 673 (1982); Holmquist v. Miller, 367 N.W.2d 468, 470-72 (Minn. 1985). Despite its acknowledgement that the dram shop act was the exclusive remedy for an illegal sale by a licensed vendor, the Michigan court held in Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985), that their dram shop act, which covered only licensees, did not preempt a common law action against a social host. Id., 377 N.W.2d at 808-09. These decisions are consistent with our ruling in Snyder v. Davenport, in which we decided that the dram shop act provides the exclusive remedy when the alleged wrong falls within the statutory scheme of the dram shop act. 323 N.W.2d at 227.
In the present case we are confronted with a situation that falls outside of the parameters of the dram shop act: the illegal sale of intoxicants to a minor by a licensee. In Connolly, the majority of our court extended the principles of preemption to all sales by licensees, depriving the plaintiff of a cause of action for the wrongful sale of intoxicants to a minor. Recently, the Maine court reviewed our decision in Connolly and rejected our holding of preemption. Klingerman v. SOL Corp., 505 A.2d 474, 477 (Me. 1986). The Maine court was unwilling to conclude that its dram shop statute is an exclusive remedy, absent express language to that effect. Id. (citing Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1, 2 (1980)). See also Crespin v. Largo Corp., 698 P.2d 826, 829 (Colo. App. 1984) (where dram shop act requires notice, act does not supersede or preempt common law action based on sale to intoxicated person when notice not given); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847, 853 (1966) (in absence of special provision, common law negligence applies to cases involving intoxicating liquor); Dynarski v. U-Crest Fire Dist., 112 Misc.2d 344, 447 N.Y.S.2d 86, 87-88 (1981) (dram shop act not applicable to drinking at social occasions, but negligence action may be brought); Mason v. Roberts, 33 Ohio St.2d 29, 294 N.E.2d 884, 887 (1973) (dram shop act not exclusive
We are now faced with deciding whether to follow our holding in Connolly and hold again that the dram shop act preempts any common law action against licensees. The common law is developed by the courts and is a part of our responsibility. That responsibility includes reevaluation of previous decisions, especially those based on matters of public policy, and in reevaluating past decisions we do not depart from the proper role of the judiciary. As Mr. Justice Cardozo observed, regarding changes in the common law:
This is not usurpation. It is not even innovation. It is the reservation for ourselves of the same power of creation that built up the common law through its exercise by the judges of the past.
Mease v. Fox, 200 N.W.2d 791, 797 (Iowa 1972) (quoting B. Cardozo, The Growth of the Law 136 (1924)).
I believe that the position taken by the Maine court in Klingerman is more equitable and appropriate than our holding in Connolly; we too should hold that the dram shop act, lacking express language to the contrary, does not preempt the common law in fact situations not covered by the statute. The remedy in
In summary, I would abandon the majority opinion in Connolly and reverse the ruling of the trial court and remand.
REYNOLDSON, C.J., and LARSON and LAVORATO, JJ., join this dissent.