Summerhays v. Clark
509 N.W.2d 748
Iowa
1994
Check Treatment

*1 however, testimony mony, appeals and the victim’s should be vacated. The plus physical inju- evidence substantial the district court is affirmed. ry adequate to more than to her DECISION OF COURT OF APPEALS finding the sex acts VACATED; JUDGMENT OF DISTRICT were not consensual. COURT AFFIRMED.

Although jury failed to find that defen-

dant used a the commission firearm

crime, dangerous weapon only use of a one

way second-degree in which sexual abuse

may may be It committed. also be commit- by creating

ted a substantial risk of death victim, by being

serious persons aided and other abetted com- SUMMERHAYS, Paul Thomas as Admin mitting the There offense. was evidence that istrator of the Estate of Thomas Paul the victim received substantial blows to the Summerhays, Deceased, and Paul Thom head that broke bones her face. There Summerhays, Individually, Appel participants was also that other evidence aid- lants, ed in the commission of the offense. evidence as a adequate whole more than jury concerning the verdict of the CLARK, Defendant, James guilt defendant’s charged. offense matter, An a final we have reviewed Steven R. and Steven R. defendant’s claim that he received ineffective 4th Inc. Street d/b/a assistance from his trial counsel. in Station, Appellees. challenges stances in which he per counsel’s No. 92-1361. many formance are include failure file evidence, suppress motion to failure Supreme Court of Iowa. object testimony conduct, postarrest Dec. 1993. challenges failure to make additional jurors prospective cause to other than Bon Rehearing Denied Jan. 1994. Brandt, nie and a failure to renew the motion As Jan. Corrected change of venue at the conclusion of voir dire.

We find that the contention based on

failure to change renew the motion for

venue is without merit and affords the defen

dant no basis relief. We also find no

merit in involving the contention the absence challenges additional for cause. We be

lieve remaining contentions are matters may only properly be determined on

factual record in which the reason for failure

to take procedural steps may certain be ex

plored through testimony and cross-examina

tion. Consequently, resolution of those inef

fective-assistance-of-counsel issues must be

relegated application to an postconviction

relief. presented have considered all issues

and conclude that the decision of the court *2 holiday party given aof

aftermath employees. district establishment’s found a matter law that court did meet the “sold and restaurant requirement triggering liability un- served” statute, der our (1991), owner, § 123.92 and that the individu- liability ally, was immune from as a social 123.49(l)(a). host under Iowa Code affirm. appeal Because case reaches us on granting summary judgment, from an order genuine is to whether a our task determine of fact and whether the law was issue exists correctly. applied Brown v. Monticello State (Iowa 1984). Bank, 81, 84 “[I]f 360 N.W.2d only legal conse- the conflict consists facts, flowing undisputed quences favorably facts most toward from the viewed summary resisting party, Co., 487 proper.” Paul v. Ron Moore Oil 1992). (Iowa these 337-38 With mind, following principles in we relate the undisputed facts record. R. Inc. is an Defendant Steven operate a authorized to Iowa 4th restaurant and bar known as Waterloo corporate owner Street Station. Its Kayser. president is defendant Steven R. January 1990, Kayser evening On holiday party 4th a belated at Street hosted for establishment’s Station guests. beverages All food and and their paid corpora- supplied and voluntary. tion, employee attendance was public closed to the The restaurant was the event. employed was James Clark

Defendant manager and bartender. 4th Street Station as p.m. around 6 He arrived Kay- wife, Clark two of his Kathleen. White, Waterloo, appel- G. Frederick open drinks behind the friends served ser’s lants. himself or seven Clark served six bar. beers; approximately ten. his wife he served Gerry M. and Andrew M. Johnson Rinden p.m., left the Clarks Around Sens, Moines, Wintroub, Des Rinden & son, Thomas, up pick Kathleen’s appellees. parents’ her home in Waterloo. staying at intoxicated, visibly

Because Kathleen Clark, it turns drive. decided to Clark NEUMAN, out, Justice. legally intoxicated. was also picked up and then Thomas The Clarks interlocutory appeal tests the Parkersburg. home near tragic proceeded its owner for the of a restaurant and ride, Inc., (Iowa During slept Thomas 1987); the back Con traveling approxi- of the vehicle. After 833; seat nolly, Snyder 371 N.W.2d at v. Daven minutes, twenty mately suddenly Clark lost port, Thus control of the vehicle and drove into a ditch. correctly the district court granted summary *3 Thomas was thrown from the vehicle and judgment Kayser, Inc. on all claims not injuries shortly died from his after the acci- premised on section 123.92. dent. Summerhays’ principal II. argument on father, plaintiff Thomas’s Paul Summer- appeal Kayser, is that Inc.’s action under this hays, brought wrongful death action brings purview record it within the of section against alleged the defendants. The suit 123.92. The pertinently statute states: liability Kayser, Inc. and Steven Any person injured who is in person or under the statute and the com- property support by or means of an intoxi- respondeat superior.1 mon-law doctrine of resulting cated from the intoxi- answering, After these defendants moved for person, cation of a right has a of action for summary judgment. They asserted that damages sustained, all actually severally or liable, Inc. could not be found as a jointly, against any permittee, licensee or law, matter of because it did not sell and any beer, wine, who sold and served intoxicating beverages serve to Clark as re- intoxicating liquor to the intoxicated quired prove liability 123.92; under section son permittee when the licensee or knew that no action could be maintained should have known the was in- against Kay- Iowa Code section 123.92 toxicated, or who sold to and served the ser, individually, because he is neither a li- point to a where the licensee or quor permittee; licensee nor and that Iowa permittee knew or should have known the Code section immunizes person would become intoxicated. as a social host. The district 123.92 court entered on defendants conceding While pay Kay- that Clark did not grounds. appeal these This followed. ser, him, Inc. for the alcohol that intoxicated scope I. The and intent of our state’s Summerhays asserts that the record would dramshop law has been a source of much support argument a factual that a “sale” opinions debate our topic. Most Thus, nevertheless occurred. argues, he often the court has divided over the extent to summary judgment for the defendant was preempts which the statute common-law improvidently granted and should be re- See, e.g., Store, Eddy Casey’s claims. Gen. versed. agree. We cannot 633, (Iowa 1992) (dissent 485 N.W.2d 639 Summerhays’ argument rests on preemption asserts argument “specious”) notion employee goodwill that (Larson, J., fostered dissenting); Kelly v. Sinclair Oil Co., holiday party a 341, (Iowa 1991) (“[Tjhis constitutes a 476 N.W.2d 356 quid pro quo qualify applying court has erred in preemption prin consideration —and henee a ciples broadly.”) (Larson, J., “sale” —under the so statute. He cites dissenting); Fountain, Conlan, 1159, State v. Connolly 168 N.W. (Iowa 1985) (1918), support (applying preemption his claim. doctrine Fountain is prohibition square 123.92 era case in “does not which this the stat court jury ed held legislature”) (Schultz, J., that a was raised concern dissenting). ing consistently culpability court has criminal employer de of an cided, however, kept that Iowa alcohol Code section on hand for his workers in provides 123.92 remedy against scavenger exclusive trade. Id. at 168 N.W. permittees licensees and at 287. for losses The law at the time criminalized the related to the furnishing of liquor, alcohol to an sale of “giving but not away, it with Eddy, 636; intoxicated adult. any out N.W.2d at consideration whatever.” Id. at Slager v. Corp., HWA 1161-62, 168 N.W. at Rejecting 286. (Iowa 1989); Petroleum, Fuhrman v. Total criminal defendant’s claim of philanthropy, negligence suit Clark for appeal. is not involved in this company’s appellant was not on adequate consideration held that this court him, appellant the condition that entertain by proof that the em- could be established bargained-for re- there no consideration employees wage paid his ployer Obviously, whiskey no sale or barter. furnished. and hence the cost of the flected encourage continuing appellant wished to at 287. 168 N.W. Id. relationship with the Home Insurance persuasive on the find Fountain do not appel- how Company. It is difficult to see is without us. The record question before the insurance providing lant’s (or any any claim Clark’s representative could constitute company’s wages were reduced employee-guest’s) other consideration, however, since no claim was party. at the cost of alcohol consumed relationship that their business made suggest that Clark does the record Nor *4 dependent upon appellant’s entertaining party had free not have attended would Coleman, or vice versa. provided. and food not been drinks (citations omitted). Likewise, in at 596 Id. rejected contention have Other courts Co., Supply Mayer v. Electric 378 DeLoach think, and, Summerhays cor- by we asserted (Ala.1979), 733 the court concluded that So.2d Coleman, 315 rectly Cady In v. so. willingness employee of an to be on the mere (Minn.1982), Supreme the Minnesota 593 party at an office did not hand to assist argu- or bartered” considered “sold Court employee’s subsequent overindul- render the attorneys involving in made a case ment consideration for gence at the golf outing for an insur- bought drinks at a bring employer within his services with whom company representative ance dramshop act. Id. at of Alabama’s ambit business. When they had done substantial in an agent was later involved the inebriated reasoning Cady in We believe accident, law- plaintiffs sued the automobile wisely recog- DeLoach is sound. Both courts others, law yers, among under a Minnesota difficult, impossible, if not nized that it is any against a cause of action that stated by gratu- goodwill generated quantify the by “illegally intoxication person who caused parties employee itous entertainment Id. bartering intoxicating liquors.” selling or argu- convinced that the elsewhere. We are added). Rejecting the (emphasis at 595 hopeless- Summerhays would advances ment plaintiffs’ argument that the alcohol was commonly distinctions be- ly understood blur past given, bartered in consideration but gift, wage, and a sale. tween a business, the future insurance defense court stated: believe, fortified, we decision is Our hold, however, that no barter took dramshop legislature’s amendment given

place because no consideration “sell or replace in the words statute liquor. exchange appellant’s in While served.” the words “sold and give” with appellant’s providing purpose § an obvious Acts ch. company personnel

insurance previously haveWe to remain in the legislature’s and entertainment was intent change as evidence of good graces hope company’s which a licensee the conduct for to narrow appellant Paul, company would continue to send at 338. may liable. be held business, a bar- its insurance defense include a licen- Reading the term “sold” to ap- exchange, in the sense that gained-for undertakings would purely gratuitous see’s trading drinks pellant plain and Coleman were well as the intent as contradict business, surely never intended. statutory term. meaning of the Shafer Cocklin, voluntary requires as- Consideration otherwise, may but dictate obligation by one on Wise social sumption of an imposed limits to adhere to the by we are bound an act or forbearance the condition of Fuhrman, 398 N.W.2d at legislature. purchase of li- appellant’s If the other. ruling, did not err The district court condition 809. quor for was not Coleman record, Kayser, Inc. was enti- under this appellant more defense that Coleman send a matter of law. cases, referring of his tled and if Coleman’s Through statutory claim change, legisla- III. Steven individually, alleged rested on plainly liabili- ture has immunized lia- ty bility under Iowa Code sections 123.92 and 123.- as a social host. The district court negligence and on common-law under the by entering judgment no error committed theory respondeat superior. plaintiffs his favor on all of claims. AFFIRMED. terms,

By statute liability only extends licensees and

permittees. See Iowa Code 123.92. Ste All except Justices concur LAVORATO per- ven is neither a licensee nor a LARSON, JJ., who dissent and mittee. Hence the action stated TERNUS, J., part. who takes no section 123.92 does not attach to him. LAVORATO, (dissenting). Justice Summerhays Kay- also seems to claim that majority rejects Summerhays’ action ser, Inc., agent Kayser, as an against the Iowa Code section responsibility bears for Clark’s intoxication 123.92 because it believes that as a matter of subsequent respondeat conduct on a su- law the of beer and in this perior holding basis under this court’s so, doing case did not constitute a In sale. Thorp Store, Inc., Casey’s General *5 majority heavily Cady the relies on v. Cole 457, Thorp only N.W.2d 464-65 man, (Minn.1982). Cady 315 N.W.2d 593 123.49(1) retaining section lia- distinguishable because it involved a social bility dramshop employees “sell, who dis- host that was not a commercial vendor of pense, give” alcohol to an intoxicated Iowa, alcohol. Like Minnesota does not rec noted, already son. Id. at 465. As no “sell- ognize common law actions social ing” of alcohol occurred here. The record hosts under its statute. See Cole liquor further establishes given that the City Park, Spring Lake 314 N.W.2d 836 by corporation, the not and was dis- of (Minn.1982). pensed by argument Clark to himself. The is, therefore, without merit. majority The passage Cady cites a from support of its conclusion that the The district court also ruled that a employees of alcohol to guests by and their against Kayser cause of action could not be licensee this ease did not constitute a premised 123.49(l)(a) on Iowa Code section purposes sale for of section 123.92. Howev- (1989). provides: The statute er, following passage is found in an earli- person A person other than required a to part er opinion Cady: of the hold license or chapter under this dispenses gives who We hold in legislature an alcoholic this case that bever- wine, age, or beer in intended to insulate social violation of this hosts from lia- sub- bility civilly regardless section is not injured liable to of the terms an under which person they provide inju- guests or the estate of liquor. with It is illogical impose ries inflicted to as a result of by Shop] upon intoxication [Dram Act a social consumer of the alco- host who beverage, wine, holic liquor sells or or beer. barters to a minor or an person, upon intoxicated but not one who § Iowa Code gives away. it argument The that com- statute, enacted in intended subject mercial vendors should be to liabil- end the “social liability imposed by host” ity they profit by because their sales and Mincks, court in Clark v. should bear some the risks (Iowa therefore 1985), thereby reinstating the com- by created apply their business does not alcohol, mon-law consumption rule that equal host, with to a social who is force it, serving rather than the proximate is the unlikely any profit to make even if he cause for inflicted on another an guests.... barters or sells person. intoxicated Iowa Code 123.- 49(l)(b); Hansen, see Cowman v. legislature’s intent to restrict liabili- 358, (1958). ty only to commercial vendors is sufficient- facts ar- These ly [Dram its deletion clear from “Any employ- “giving.” gument that the idea of a benevolent Shop] the word Act of Shop contrary principles. Act] who sells Bene- person” the Dram er is to economic [in employers may means a fits that furnish barters liquor, not a providing are, provided economically speaking, business happens receive some social host who cost of doing “free.” Such benefits are a guests his in return consideration recognized and so and treated business provides. employers drinks he employers. specifically, More employees generally consider such benefits Cady, at 595-96. any management wages. example, For My point language the italicized is that negotiations employee regarding and union logically passage could be extend- the above recognize benefits like health insurance uses its ed cover licensee employees1 reality they traditionally economic because for an premises and part wage pack- treat such benefits as of the during which beer and li- Christmas age. argument, During quor is oral served. attorney candidly admitted licensee’s 123.1 sets out the fol- if licensee might result be different here lowing public policy regard to the traf- the house” its cus- drinks “on furnished ficking of in Iowa: I see tomers business hours. no mean- after chapter cited as the shall be “Iowa the two ingful between scenarios. distinction Act,” and Beverage Alcoholic Control shall scenarios, licen- Under either of these power police an of the be deemed exercise selling liquor see is still in the business state, of the protection wel- not change licensee does hats beer. The fare, health, morals, safety peace, merely host from a to a social be- state, people provi- all its *6 closed. fact is A the establishment liberally for sions shall be construed the reasonably finder infer under either could accomplishment purpose. It is of that de- the licensee makes no immedi- scenario that public traffic clared to be that the in profit hopes profit “gener- from ate but public liquors affected with a alcoholic is so osity” or in the future because regulated to interest that it be the should case, In licen- goodwill. customer either the them, prohibiting extent of all traffic expects a benefit form of such see except provided chapter. as in this liquor goodwill furnishing the beer and giv- majority’s interpretation The restrictive “gratuitously.” expectation I such an submit 123.92flies in to the word in section en “sale” is to constitute consideration for statutory face of the mandate the the thereby the the beer and and brand Chapter liberally be provisions of 123 should scenario a “sale” transactions under either protect safety Iowa citi- construed purposes of section 123.92. nothing an does interpretation zens. Such this con- are other facts There tragedy in prevent a of the recurrence paid clusion. in this ease The licensee child. death of an innocent case—the and beer consumed the estab- reasons, I hold that For all these would during par- premises lishment Christmas on whether question is a material fact there ty. reported licensee amount The was a liquor and beer sale liquor dispensed beer as sales of and therefore under section 123.92. I would re- purposes. for sales tax All ex- beer proceedings on and remand for further verse penses treated as business this issue. expenses. the two who Because majority’s con- I also take issue with the day of the were on worked on the 123.49(l)(a) salary, clusion Iowa Code section wages were likewise treated as in this case immunized expenses. preparing for day party, it. employ- of the both worked James Clark are 1. Steven R. corporation. principal is also On the party, ees of the licensee owner bartender. Clark was the At corporation. president host. liability as a social Section (b) provide: Marsha McMASTER Marsha n/k/a

1(a) Hines, Plaintiff, person A other than a re- quired, permit a license or to hold under chapter dispenses gives an wine, beverage, alcoholic or beer viola- IOWA BOARD OF PSYCHOLOGY civilly tion of not this subsection is liable to M. EXAMINERS Susan injured person an the estate Guenther, Defendants. injuries on that inflicted result of intoxication the consumer of IOWA BOARD OF PSYCHOLOGY beverage, the alcoholic wine or beer. EXAMINERS, Appellee, (b) general assembly The declares that this subsection shall be so that Mincks, holding of ... Clark v. is GUENTHER, Respondent. Susan M.

abrogated prior judicial favor inter- pretation finding consumption of alco- HINES, Appellant. Marsha wine, beverages, holic or beer rather than No. 92-1904. wine, serving beverages, of alcoholic proximate beer as the cause of in- Supreme Court Iowa. upon per- flicted another an intoxicated son. Dec. language italicized excludes all required

sons other than those to hold a Chapter

license or 123. Clear-

ly, by exclusion, including licensees provide

the intent of the statute is to

liability against licensees. majority taking position

licensee here was —as a matter of law—a

social I host. this conclusion.

As I said earlier the licensee here is a

commercial vendor and beer. The using

licensee was establishment put party. two of its on the reported

The licensee the amount of beer liquor dispensed as sales for sales tax

purposes. expenses All expenses.

treated as business I think these

undisputed facts ques- raise a material fact

tion on acting whether the licensee was aas place

social host question. at the time and

I would not hold as a matter of law that the awas social host.

I would therefore also reverse and remand

on this proceedings. issue for further

LARSON, J., joins this dissent.