                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0375
                             Filed January 10, 2018


SHELDON WOODHURST and CARLA WOODHURST,
    Plaintiffs-Appellants,

vs.

DRIFTWOOD, INCORPORATED, a Corporation, d/b/a DRIFTWOOD BAR AND
GRILL,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Jackson County, Nancy S. Tabor,

Judge.



       Sheldon and Carla Woodhurst appeal the order granting summary

judgment in favor of Driftwood Bar and Grill on their dramshop-liability claim.

AFFIRMED.




       David M. Pillers of Pillers & Richmond, DeWitt, for appellants.

       Thomas Henderson and S. Luke Craven of Whitfield & Eddy, P.L.C., Des

Moines, for appellees.



       Considered by Danilson, C.J., and Doyle and Mullins, JJ. Tabor, J., takes

no part.
                                        2


DOYLE, Judge.

      Sheldon and Carla Woodhurst appeal the order granting summary

judgment in favor of the Driftwood Bar and Grill (Driftwood) on their dramshop-

liability claim, which stems from an incident where David Zabransky shot Sheldon

Woodhurst. Zabransky, who had been served liquor at the Driftwood on the night

of the shooting, was intoxicated when he shot Sheldon Woodhurst.                The

Woodhursts claim summary judgment is improper because a fact question exists

concerning whether Driftwood employees knew or should have known Zabransky

was or would become intoxicated when they served him liquor. Because their

argument hinges on a legal inference that is not warranted under the facts of this

case, we affirm the grant of summary judgment in favor of the Driftwood.

      I. Background Facts.

      The district court found the following facts were undisputed concerning

Zabransky’s actions on the night in question:

      [Zabransky] and his friend Robert Hochbaum had been duck hunting
      during the day. At approximately 6 p.m. the two men began drinking
      first at a private home in Fulton, Illinois. [Zabransky] consumed
      about three (3) twelve (12) ounce beers there. The men then moved
      to Manny’s Pizzeria in Savanna, Illinois, where Zabransky drank
      approximately two (2) more beers. Then at about 9:40 p.m. the two
      went to a private party at the home of Devon Strissel In Illinois. They
      stayed there until approximately 11:30 p.m. The two then traveled
      to Iowa and entered the [Driftwood] . . . at approximately midnight.
      [Zabransky] was served at least one beer there that he paid for and
      may have drank an additional beer that his friend bought for him.
      Then, at approximately 12:45 p.m., the two left the Driftwood and
      went to the Lucky 7 bar . . . . [Zabransky] was served at least one
      (1) beer at the Lucky 7.

      The district court found that Zabransky and Hochbaum arrived at Lucky 7

close to 1:00 a.m. While there, Hochbaum engaged in an argument with Sheldon
                                           3


Woodhurst’s brother, Steven. After the men left, the argument resumed across

the street from the bar, and Zabransky shot Sheldon in the stomach. A test

administered at 2:15 a.m. showed Zabransky’s blood alcohol concentration (BAC)

was 181 mg/dl. A test administered at 4:25 a.m. showed his BAC was 124 mg/dl.

       The Woodhursts filed a petition alleging assault and battery against

Zabransky. They also alleged dramshop liability against the Driftwood. 1 The

Driftwood moved for summary judgment, which the district court granted.

       After a jury trial, the court entered judgment in favor of the Woodhursts on

their assault and battery claims against Zabransky.            The Woodhursts then

appealed the order granting summary judgment in favor of the Driftwood.

       II. Scope and Standard of Review.

       We review an order granting summary judgment for correction of errors at

law. See Barker v. Capotosto, 875 N.W.2d 157, 161 (Iowa 2016). To prevail on a

motion for summary judgment, the moving party must show the material facts are

undisputed and, applying the law to those facts, the moving party is entitled to

judgment as a matter of law. See id.; Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa

2015). Therefore, our review is limited to two questions: (1) whether there is a

genuine dispute regarding the existence of a material fact and (2) whether the




1
 The Woodhursts also filed a claim of dramshop liability against Manny’s Pizzeria, which
was dismissed for lack of personal jurisdiction. See Woodhurst v. Manny’s, Inc., No. 12-
0317, 2013 WL 1452929, at *1, 3 (Iowa Ct. App. Apr. 10, 2013). After the Driftwood filed
a third-party claim against Lucky 7, the Woodhursts amended their petition to assert a
dramshop claim against Lucky 7. The district court eventually dismissed the claim against
Lucky 7 for lack of timely service. We have deleted Lucky 7 from the caption. Defendant
David Zabransky is not a party to this appeal, so we have deleted his name from the
caption as well. See Iowa R. App. P. 6.109(2) (“Parties not involved in the appeal may be
omitted from the caption.”).
                                        4

district court correctly applied the law to the undisputed facts. See Homan v.

Branstad, 887 N.W.2d 153, 164 (Iowa 2016).

      A fact is material if it may affect the lawsuit’s outcome. See id. There is a

genuine dispute as to the existence of a fact if reasonable minds can differ as to

how the factual question should be resolved. See id. “Even if facts are undisputed,

summary judgment is not proper if reasonable minds could draw from them

different inferences and reach different conclusions.”     Walker Shoe Store v.

Howard’s Hobby Shop, 327 N.W.2d 725, 728 (Iowa 1982).

      We review the facts in the light most favorable to the nonmoving party. See

Nelson, 867 N.W.2d at 6. We draw all legitimate inferences supported by the

record in favor of the nonmoving party. See id. We also give the nonmoving party

the benefit of the doubt when determining whether the grant of summary judgment

was appropriate. See Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa

Ct. App. 1994).

      III. Discussion.

      Iowa’s Dramshop Act provides that

      [a]ny person who is injured . . . by an intoxicated person . . . has a
      right of action for all damages . . . 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.

Iowa Code § 123.92(1)(a) (2009). To succeed on his dram shop liability claim, the

Woodhursts must show: (1) Zabransky was intoxicated, (2) the Driftwood sold and

served Zabransky alcohol, and (3) the Driftwood knew or should have known

Zabransky would become intoxicated. See Smith v. Shagnasty’s Inc., 688 N.W.2d
                                            5


67, 72 (Iowa 2004). There is no dispute that there is sufficient proof of the first two

elements; Zabransky was intoxicated when he shot Sheldon Woodhurst, and the

Driftwood sold and served Zabransky alcohol.

       The element at issue concerns whether Driftwood employees knew or

should have known that Zabransky would become intoxicated.

       [P]roof of scienter in a dramshop action may be shown by employing
       “either a subjective or an objective standard in establishing the
       defendant’s knowledge.” For example, we have upheld a jury
       instruction that required the plaintiff in a dramshop action to show
       “the defendant must have [had] actual knowledge or that a
       reasonably observant person under the same or similar
       circumstances would have had knowledge.” Insofar as proof of a
       defendant’s subjective intent is pursued, it must be remembered that
       “[d]irect proof of the intent with which an act was committed is not to
       be had in many cases, and, when that is true, circumstantial
       evidence may be sufficient.”

Id. at 74 (alteration in original) (citations omitted).

       A person is intoxicated when “(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 (4) the person has, to any extent, lost control of bodily

actions or motions.” Id. at 72 (citation omitted). The degree of intoxication is

irrelevant; the question is whether intoxicated persons are under the influence of

liquor such that they do not act as themselves, are excited from it, and do not

possess the clearness of intellect and control that they would otherwise have. See

id. at 73.

       The Woodhursts contend the district court erred in finding no evidence

established a factual dispute as to whether the Driftwood knew or should have

known Zabransky was intoxicated or would become intoxicated at the time it

served him liquor. The Woodhursts argue they are entitled to an inference that the
                                           6


Driftwood knew or should have known that Zabransky was or would become

intoxicated based solely on his intoxication at the time of the shooting and the fact

that the Driftwood had served him alcohol. In support of this claim, they cite Smith

v. Shagnasty’s Inc, in which our supreme court found a fact issue had been

generated on the question of whether Shagnasty’s knew or should have known

Doe was intoxicated or would become intoxicated when they served. Id. at 75.

       In Shagnasty’s, our supreme court held that a jury could reasonably find

that Doe was intoxicated at the time of the attack and Shagnasty’s sold and served

her alcohol. Id. The court rationalized that bearing in mind the “commonsense

inference that the solitary beer in Doe’s hand at the time of the attack did not solely

cause her intoxication,” then one could infer that at the time Shagnasty’s served

Doe that one beer, it knew or should have known Smith was or would become

intoxicated. Id. The court explained:

       In affording Smith all legitimate inferences, we simply recognize that
       if (1) one beer does not a drunk make, (2) Shagnasty’s sold and
       served Doe a beer, and (3) Doe was shortly thereafter in a visibly
       intoxicated condition, then it stands to reason that (4) Doe was also
       noticeably intoxicated at the time of service. Moreover, if a patron
       was likely visibly intoxicated at the time of service, a jury could find
       (5) the bar knew or, at the very least, should have known of her
       intoxication.

Id. It then cited a case in which the Indiana Court of Appeals held that “when

viewed most favorably to the non-moving party, the fact that [a bar] served even

one beer to a person who shortly thereafter was in a state of serious intoxication

gives rise to a question of fact whether [the intoxicated person] was visibly

intoxicated at the time [of service].” Id. (alteration in original) (quoting Ward v. D &

A Enters. of Clark Cty., Inc., 714 N.E.2d 728, 730 (Ind. Ct. App. 1999)).
                                            7


Importantly, our supreme court recognized that “a ‘subsequent intoxicated

condition inference’ might not be appropriate in every case.” Id. However, the

court found it was warranted in Shagnasty’s “because of the presumably short

timeframe between service and the attack: for at the time of the attack, Doe was

still in the bar, holding a beer, in a visibly intoxicated state.” Id.

       The district court rejected Woodhursts’ argument that the “subsequent

intoxicated condition inference” should be afforded here, noting the Shagnasty’s

case indicated its holding was fact specific.

       In that case, the injured party and her friend entered the bar and went
       into the ladies room. While in there, Doe bumped into her and was
       loud, obnoxious, and offensive in her language toward the injured
       party. Doe also bumped into others when she left the ladies room.
       The injured party left the restroom after Doe and encountered her
       again immediately upon leaving the restroom. This time Doe had a
       bottle of beer in her hand. The two woman then had an immediate
       verbal confrontation which ended in Doe seriously injuring the other
       woman’s face by hitting and cutting her with the beer bottle. The two
       struggled and the bouncer attempted to break it up. The injured
       woman had Doe’s hair and would not let go until the bouncer agreed
       that he would detain Doe until the police arrived. The bouncer said
       he would, and Doe’s hair was released. At that time, the bouncer
       immediately took Doe to the back of the bar and assisted her to leave
       the establishment before the police arrived.

The district court noted that, in contrast to the Shagnasty’s case, the Driftwood

served Zabransky one beer during the forty-five minutes he was at the Driftwood

and there was no evidence Zabransky exhibited any signs of intoxication while

there. The court further noted that after leaving the Driftwood, Zabransky went to

the Lucky 7 bar where Hochbaum “exhibited signs of intoxication and was loud

and obnoxious and got into a verbal confrontation with a patron,” while “Zabransky

remained calm and quiet throughout the entire confrontation with his friend,” did

not stagger or slur his words, and was able to follow conversations. It was not until
                                         8


forty-five minutes after Zabransky went to the Lucky 7 bar that he shot Sheldon

Woodhurst. In short, the court held the evidence was uncontroverted that no one

at the Driftwood observed any of the “multitude of symptoms” that an expert

witness indicated would be “blatantly” and “recognizably” observable in someone

who was intoxicated.

       On appeal, the Woodhursts do not suggest there is evidence that Zabransky

demonstrated any observable signs of intoxication while at the Driftwood. Instead,

their sole claim is that the district court erred in failing to apply the “subsequent

intoxicated condition inference” set forth in Shagnasty’s to the present case.

       We agree with the district court that the facts of Shagnasty’s case are

sufficiently distinguishable from the facts of the case at bar, and the facts before

us do not warrant affording such an inference. Without citing any evidence to

suggest the Driftwood knew or should have known Zabransky was or would

become intoxicated at the time it served him liquor, we agree no factual dispute

exists as to the proof of this element. The Woodhursts have failed to make the

requisite showing to survive summary judgment on their dramshop-liability claim

against the Driftwood.     Accordingly, we affirm the order granting summary

judgment in favor of the Driftwood.

       AFFIRMED.
