                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1218
                               Filed May 3, 2017


RHONDA BANWART, Individually
and as Next Friend of A.B. and M.B., Minor Children,
      Plaintiff-Appellant,

vs.

50TH STREET SPORTS, L.L.C. d/b/a DRAUGHT HOUSE 50,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      The plaintiff appeals from the district court’s grant of summary judgment in

favor of the defendant, dismissing the plaintiff’s petition alleging dramshop

liability. AFFIRMED.




      Michael T. Norris of Slater & Norris, P.L.C., West Des Moines, for

appellant.

      Adam D. Zenor of Grefe & Sidney, P.L.C., Des Moines, for appellee.




      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, Presiding Judge.

       Rhonda Banwart, individually and as next friend of minor children A.B. and

M.B., appeals from the district court’s grant of summary judgment in favor of 50th

Street Sports, L.L.C., d/b/a Draught House 50 (“Draught House”), dismissing

Banwart’s petition alleging dramshop liability. Upon our review, we affirm.

       I.     Background Facts and Proceedings

       On February 27, 2015, at approximately 4:30 p.m., Michelle Campbell met

some of her coworkers at Draught House for food and drinks after work. While at

Draught House, Campbell consumed three beers and ate food that had been

ordered for the table. Campbell did not consume any alcohol before she arrived

or after she left Draught House. The group put the food and drinks they ordered

on an open tab. Two of Campbell’s coworkers paid for the group’s tab before

leaving around 7:30 p.m. Campbell did not order or consume any other drinks

that evening. Campbell later testified that her group talked at a “normal voice

level for a bar on a Friday evening.”

       Campbell left Draught House around 8:30 p.m. Shortly thereafter, the

front end of Campbell’s vehicle collided with the rear end of Banwart’s vehicle,

which was stopped at a stop light. Campbell later testified at her deposition that

she felt “in control” and able to drive at the time she left Draught House. She

also testified she was slowing down to stop behind Banwart’s car when she

received a phone call, became distracted and looked away from the road to see

who was calling, and then immediately collided with Banwart’s car. Campbell

further testified her airbag did not deploy and she did not suffer any injuries as a
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result of the accident. The police report from the accident shows both vehicles

had moderate damage but appeared to be operational.

       A local police officer arrived at the scene to investigate the accident. The

officer smelled the odor of alcohol emanating from Campbell’s vehicle when he

approached. He observed Campbell had bloodshot and watery eyes, slurred

speech, and difficulty following his instructions.    The officer asked Campbell

where she was coming from and if she had been drinking. Campbell told the

officer she had had three beers at Draught House. She also told the officer she

felt “buzzed” but still in control. Campbell did not stumble as she got out of her

vehicle and had no problems walking or balancing. Campbell completed three

field sobriety tests at the officer’s request. The officer later testified Campbell’s

emotions varied between joking and laughing or crying during the tests and he

observed several signs of intoxication.         Campbell also complied with a

Datamaster test, which showed she had a blood alcohol level of .143. Campbell

was subsequently charged with operating while intoxicated (OWI), first offense,

and pled guilty.

       On April 2, 2015, Banwart filed a petition at law against Draught House,

alleging Draught House was liable for the collision due to its sale and service of

alcoholic beverages to Campbell and seeking damages related to the accident.

Draught House filed a motion for summary judgment, which the district court

granted. Banwart appeals.

       II.    Standard of Review

       We review a district court’s grant of summary judgment for correction of

errors at law. See Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6
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(Iowa 2014).    Summary judgment is appropriate when there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of

law. Iowa R. Civ. P. 1.981(3); Sanford v. Fillenwarth, 863 N.W.2d 286, 289 (Iowa

2015). “[A] ‘factual issue is “material” only if “the dispute is over facts that might

affect the outcome of the suit.”’” Peak v. Adams, 799 N.W.2d 535, 542 (Iowa

2011) (quoting Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001)).

“An issue of fact is ‘genuine’ if the evidence is such that a reasonable finder of

fact could return a verdict or decision for the nonmoving party.”           Parish v.

Jumpking, Inc., 719 N.W.2d 540, 543 (Iowa 2006). The burden is on the moving

party to show the nonexistence of a material fact. Pillsbury Co. v. Wells Dairy,

Inc., 752 N.W.2d 430, 434 (Iowa 2008). “However, the nonmoving party may not

rest upon the mere allegations of h[er] pleading but must set forth specific facts

showing the existence of a genuine issue for trial.”        Hlubek v. Pelecky, 701

N.W.2d 93, 95 (Iowa 2005) (citing Iowa R. Civ. P. 1.981(5)).

       In determining whether summary judgment is appropriate, the court shall

consider the pleadings, depositions, answers to interrogatories, admissions on

file, and affidavits. Iowa R. Civ. P. 1.981(3). We must view the facts “in the light

most favorable to the nonmoving party” and “draw all legitimate inferences the

evidence bears in order to establish the existence of questions of fact.” Jones v.

Univ. of Iowa, 836 N.W.2d 127, 140 (Iowa 2013) (quoting Pitts v. Farm Bureau

Life Ins. Co., 818 N.W.2d 91, 96–97 (Iowa 2012)). “An inference is legitimate if it

is ‘rational, reasonable, and otherwise permissible under the governing

substantive law.’ On the other hand, an inference is not legitimate if it is ‘based

upon speculation or conjecture.’” Smith v. Shagnasty’s Inc., 688 N.W.2d 67, 71
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(Iowa 2004) (quoting McIlravy v. N. River Ins. Co., 653 N.W.2d 323, 328 (Iowa

2002)). “If reasonable minds may differ on the resolution of an issue, a genuine

issue of material fact exists.” Id. (quoting McIlravy, 653 N.W.2d at 328).

       III.   Analysis

       The legislature enacted the dramshop statute “for the protection of the

welfare, health, peace, morals, and safety of the people of the state.” Iowa Code

§ 123.1 (2015). It also declared “all its provisions shall be liberally construed for

the accomplishment of that purpose.” Id. The statute provides, in pertinent part:

              Any person who is injured in person or property or means of
       support by an intoxicated person or resulting from the intoxication
       of a person, has a right of action for all damages actually sustained,
       severally or jointly, against any licensee or permittee . . . who sold
       and served any beer, wine, or intoxicating liquor to the intoxicated
       person when the licensee or permittee knew or should have known
       the person was intoxicated, or who sold to and served the person to
       a point where the licensee or permittee knew or should have known
       the person would become intoxicated.

Id.   Essentially, this section gives “a remedy to innocent victims harmed by

persons who are served excess liquor by licensees and permittees.” Sanford,

863 N.W.2d at 290.

       On appeal, it is undisputed Draught House “sold and served” Campbell

three beers. Iowa Code § 123.92(1)(a). The question before us, then, is whether

Draught House “knew or should have known” Campbell “was intoxicated” or

“would become intoxicated” when Draught House sold and served the beers to

her. Id.

       In Smith, the supreme court recognized the following as indicators of

intoxication: “(1) the person’s reason or mental ability has been affected; (2) the

person’s judgment is impaired; (3) the person’s emotions are visibly excited; and
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(4) the person has, to any extent, lost control of bodily actions or motions.” 688

N.W.2d at 72 (quoting Garcia v. Naylor Concrete Co., 650 N.W.2d 87, 90 (Iowa

2002)). Additionally, “[e]vidence of a person’s blood-alcohol level, if available, is

important evidence of intoxication.” Id. Nevertheless, “[n]o particular degree of

intoxication is required.” Id. (citation omitted). A plaintiff may prove “scienter in a

dramshop action . . . by employing ‘either a subjective or an objective standard in

establishing the defendant’s knowledge.” Id. (quoting Hobbiebrunken v. G & S

Enters., Inc., 470 N.W.2d 19, 22 (Iowa 1991)).

       In its order granting summary judgment, the district court found Draught

House was not liable for damages caused as a result of the accident between

Campbell and Banwart because Banwart had not presented any evidence that

Draught House knew or should have known Campbell was intoxicated or would

become intoxicated before it sold and served alcoholic beverages to her. The

court acknowledged that, although “[t]he evidence from the accident scene and

officer investigation is highly material to show that Ms. Campbell was intoxicated

at the time she left Draught House,” the question was “whether Draught House

knew or should have known that Ms. Campbell was intoxicated or would become

intoxicated at the time it served her.”

       The court noted there was no evidence Campbell had displayed signs of

intoxication while at Draught House—Campbell had not used loud or abusive

language, she had not confronted bar staff or other patrons, she had not been

seen bumping into people and did not appear unbalanced while walking or

standing, and she did not appear to be visibly excited or emotional. The court

also found there was “no evidence to show that Draught House knew or should
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have known that Ms. Campbell was intoxicated or would become intoxicated

based on the number of drinks served.”        The court noted the evidence was

undisputed “Campbell was served three beers during a timeframe of four hours.”

Further, “[t]here [wa]s no evidence as to the size or percentage of alcohol in the

beers consumed by Ms. Campbell.” And there was also “no evidence as to

[Campbell’s] weight or other factors that might impact her level of intoxication.”

Thus, the court determined there was no genuine issue of material fact that

Draught House knew or should have known Campbell was intoxicated or would

become intoxicated when it served her.

       The record shows Campbell arrived at Draught House on Friday after

work for a few drinks with her coworkers to decompress after a busy week. She

stayed there for about four hours, consuming three beers during that time. She

also ate some food that had been ordered for the table. Campbell received her

last drink at around 7:30 p.m. when her supervisor paid for a third and final round

of drinks for the table and left.   Campbell left Draught House in her vehicle

approximately one hour later. Although Campbell’s Datamaster results showed

her blood alcohol level was over the legal limit of .08 after she left Draught House

and the officer reported he observed signs of intoxication when investigating

Campbell for an OWI after the accident with Banwart occurred, Draught House

did not have that evidence at the time it served her a third beer over an hour

before. Indeed, even when the facts are viewed in the light most favorable to

Banwart, there is simply no evidence in the record that Campbell exhibited any

signs of intoxication while she was at Draught House before she was sold and

served alcoholic beverages. Furthermore, there is no evidence to show Draught
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House had any reason to know serving a third beer to Campbell would cause her

to become intoxicated.

       Based on the record before us, we agree with the district court Banwart

did not present any evidence from which a jury might reasonably infer Draught

House’s employees knew or should have known Campbell was or would become

intoxicated at the time they served her. Accordingly, we affirm the district court’s

order granting summary judgment in favor of Draught House on Banwart’s claim

of dramshop liability.

       AFFIRMED.
