                  IN THE SUPREME COURT OF IOWA
                              No. 16–1218

                          Filed March 30, 2018


RHONDA BANWART,

      Appellant,

vs.

50TH STREET SPORTS, L.L.C. d/b/a DRAUGHT HOUSE 50,

      Appellee.


      On review from the Iowa Court of Appeals.



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

Farrell, Judge.



      An injured party seeks further review of a court of appeals decision

affirming an adverse decision on a motion for summary judgment in a

dramshop action.     DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.


      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.
                                           2

WIGGINS, Justice.

      The front end of an alleged intoxicated person’s (AIP) vehicle struck

the rear end of another vehicle. The driver of the struck vehicle filed suit

against a bar under Iowa’s dramshop statute, alleging the bar sold and

served alcohol to the AIP when it knew or should have known the AIP

was intoxicated or would become intoxicated. The driver also filed suit

against the AIP.         The district court granted the bar’s motion to

consolidate the actions.

      The bar moved for summary judgment. The district court granted

the bar’s motion. The driver appealed. We transferred the case to our

court of appeals. Adopting the analysis of the district court, the court of

appeals affirmed summary judgment in favor of the bar.

      The driver filed an application for further review, which we granted.

Viewing the evidence in the light most favorable to the driver, we find a

genuine issue of material fact exists as to whether the bar knew or

should have known the AIP was or would become intoxicated when it

served alcohol to her. Accordingly, we vacate the decision of the court of

appeals, reverse the judgment of the district court, and remand the case

for further proceedings.

      I. Background Facts and Proceedings.

      The summary judgment record contains the following facts.

Michelle Campbell is a learning and development consultant in the

human resources department of Holmes Murphy.                     On February 27,

2015, Campbell went to Draught House 50 1 in West Des Moines with a

group of five or six coworkers for postwork happy hour.                Campbell

arrived at Draught House 50 around 4:30 p.m. and stayed until around


      150th   Street Sports, L.L.C. operates Draught House 50.
                                    3

8:30 p.m. She did not have any alcoholic beverages before arriving at or

after leaving Draught House 50.

      In her December 14 deposition, Campbell claimed she shared

appetizers with her coworkers and consumed three bottled Peace Tree

beers during the course of the evening. The record does not show the

size or percentage of alcohol in these beers. Each of the three rounds

was on an open tab.     Campbell claimed she did not drink any shots,

mixed drinks, or wine. Campbell stated she did not recall anyone else at

the table consuming shots.

      The CEO of Holmes Murphy bought the first two rounds and

Campbell’s supervisor bought the last round.      Campbell claimed they

ordered all three rounds of alcohol from a server who came to their table.

Campbell further claimed neither she nor anyone else at the table

exhibited excited emotions or yelled. According to Campbell, her group

maintained the normal voice level of a bar on a Friday evening.

      The record lacks evidence of when Draught House 50 served

Campbell’s last beer. However, Campbell’s supervisor, the person who

bought the last round, left around 7:30 p.m.

      At the close of the gathering, Campbell got behind the wheel to

drive home.   She felt “in control” despite being “buzzed.”       Campbell

stated her cell phone rang while on the road, so she looked down to see

who was calling. At that moment, Campbell struck the rear of a vehicle

stopped at a red light. Rhonda Banwart was the driver of the rear-ended

vehicle and her two minor children were passengers.         The accident

occurred at the intersection of 60th and Ashworth Road, which is around

fifteen to twenty blocks away, or a mile and a half away, from Draught

House 50.
                                      4

        Officer Barry Graham was dispatched to the accident scene at 8:36

p.m. Upon arrival at the scene around 8:39 p.m., Officer Graham spoke

with Campbell, at which point he smelled the odor of alcohol coming

from her. Campbell told Officer Graham she was coming from Draught

House 50 and had consumed three alcoholic beverages prior to driving.

She informed him she felt “buzzed.” Officer Graham noticed Campbell

had bloodshot, watery eyes and slurred speech.          She had difficulty

understanding Officer Graham’s request for license, registration, and

insurance.    Based on his education, training, and experience, Officer

Graham considered Campbell’s demeanor and difficulty following simple

instructions as signs of intoxication.

        Officer Graham requested Campbell to perform standard field

sobriety tests, to which she complied. Campbell exited her vehicle and

walked to the front of Officer Graham’s squad car without stumbling.

Officer Graham first conducted the horizontal gaze nystagmus test and

noted Campbell “lacked smooth pursuit” in following his finger with her

eyes.    Campbell next agreed to perform the walk-and-turn test but

expressed concern the cold temperature outside might affect her

performance.      Officer Graham thus transported Campbell to the

West Des Moines police station to conduct the walk and turn. Campbell

was not under arrest at this point.

        At the police station, Campbell exhibited capricious emotions, from

laughing and joking to crying, while attempting to complete the walk and

turn. She failed to follow instructions, missed heel to toe, stepped off the

line, raised her arms, took an improper number of steps, and made an

improper turn. Officer Graham next asked Campbell to do the one-leg

stand. She swayed from side to side and put her foot down during the
                                     5

test.    Based on the results of the tests, Officer Graham concluded

Campbell showed signs of intoxication.

        At 9:53 p.m., Campbell consented to a preliminary breath test,

which indicated a blood alcohol content (BAC) of over .08. The legal limit

is a BAC of .08.    At 9:55 p.m., Officer Graham arrested Campbell for

operating while intoxicated (OWI).       Around 10:14 p.m., almost three

hours after the supervisor who bought the last round left Draught

House 50 and almost two hours after Campbell left Draught House 50,

Officer Graham requested from Campbell a breath sample for the

Datamaster, which indicated a BAC of .143. Campbell later pled guilty to

the OWI charge.

        On April 2, Banwart filed a petition on behalf of herself and her

children against Draught House 50 under Iowa’s dramshop statute. See

Iowa Code § 123.92(1)(a) (2015).     Banwart alleged Draught House 50

served alcohol to Campbell to the point of intoxication, and proximately

caused Campbell’s intoxication and the subsequent collision.      On the

same day, Banwart also filed a petition on behalf of herself and her

children against Campbell, alleging Campbell was negligent for a number

of reasons, including operating her vehicle while under the influence of

alcohol.

        In January 2016, the district court granted Draught House 50’s

motion to consolidate both petitions. On February 3, Draught House 50

filed a motion for summary judgment.         The court granted summary

judgment in favor of Draught House 50. In its order, the court noted the

accident happened only a few minutes after Campbell left Draught House

50.     However, even though the evidence from the accident scene was

“highly material” to show Campbell was intoxicated when she left

Draught House 50, the court reasoned the issue was whether Draught
                                      6

House 50 knew or should have known that Campbell was intoxicated or

would become intoxicated at the time it sold and served her the beers.

      In granting summary judgment to Draught House 50, the court

concluded that “the undisputed evidence of serving three beers over four

hours, absent something more, [cannot] create[] an inference that

Draught House knew or should [have] know[n] that . . . Campbell was

intoxicated or would become intoxicated.”

      On July 19, Banwart appealed the district court’s order. Banwart

settled her claims with Campbell. Thus, the only defendant that remains

in this action is Draught House 50.

      We transferred the case to our court of appeals.      The court of

appeals affirmed the district court’s judgment.        Banwart filed an

application for further review, which we granted.

      II. Issue.

      The issue is whether a genuine issue of material fact exists as to

whether Draught House 50 knew or should have known Campbell was

intoxicated or would become intoxicated when it sold and served the

beers to her.

      III. Scope of Review.

      We review orders granting summary judgment for correction of

errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of

Transp., 891 N.W.2d 220, 224 (Iowa 2017).

      IV. Summary Judgment Standards.

      Summary judgment is appropriate

      if the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any, show
      that there is no genuine issue as to any material fact and
      that the moving party is entitled to a judgment as a matter of
      law.
                                         7

Iowa R. Civ. P. 1.981(3); accord Rucker v. Humboldt Cmty. Sch. Dist.,

737 N.W.2d 292, 293 (Iowa 2007).

      “A genuine issue of fact exists if reasonable minds can differ on

how an issue should be resolved.” Estate of Gottschalk v. Pomeroy Dev.,

Inc., 893 N.W.2d 579, 584 (Iowa 2017) (quoting Walker v. State, 801

N.W.2d 548, 554 (Iowa 2011)). A fact is material when it might affect the

outcome of a lawsuit. Id. “Even if the facts are undisputed, summary

judgment is not proper if reasonable minds could draw different

inferences   from     them    and    thereby    reach   different   conclusions.”

Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005); accord

Brody v. Ruby, 267 N.W.2d 902, 904 (Iowa 1978).

      The moving party bears the burden of demonstrating the

nonexistence of a material fact question.            Bank of the W. v. Kline,

782 N.W.2d 453, 456 (Iowa 2010). “However, the nonmoving party may

not rest upon the mere allegations of his [or her] 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); accord Iowa R. Civ. P.

1.981(5).

      We view the evidence in the light most favorable to the nonmoving

party. Linn v. Montgomery, 903 N.W.2d 337, 342 (Iowa 2017). We also

draw all legitimate inferences the evidence bears that will establish a

genuine issue of material fact.        C & J Vantage Leasing Co. v. Wolfe,

795 N.W.2d 65, 73 (Iowa 2011).            A legitimate inference is “rational,

reasonable, and otherwise permissible under the governing substantive

law.” McIlravy v. N. River Ins., 653 N.W.2d 323, 328 (Iowa 2002) (quoting

Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct. App.

1994)). “[A]n inference is not legitimate if it is ‘based upon speculation or

conjecture.’ ”      Id.   (quoting   Butler,   530   N.W.2d   at    88).   Thus,
                                     8

“[s]peculation is not sufficient to generate a genuine issue of fact.”

Hlubek, 701 N.W.2d at 96.      Finally, circumstantial evidence is equally

probative as direct evidence. Iowa R. App. P. 6.904(3)(p).

      V. Relevant Statutory Provision.

      The relevant language of the dramshop statute provides,
      Any person who is injured in person or property . . . by an
      intoxicated person or resulting from the intoxication of a
      person[] has a right of action for all damages actually
      sustained, . . . 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) (emphasis added).

      The legislature enacted the statute to give a right of action “to

innocent victims harmed by persons who are served excess liquor by

licensees and permittees.” Sanford v. Fillenwarth, 863 N.W.2d 286, 290

(Iowa 2015); accord Grovijohn v. Virjon, Inc., 643 N.W.2d 200, 202 (Iowa
2002). The purpose of the statute is to “place a hand of restraint” on

licensees or permittees. Thorp v. Casey’s Gen. Stores, Inc., 446 N.W.2d
457, 467 (Iowa 1989) (quoting Atkins v. Baxter, 423 N.W.2d 6, 9 (Iowa

1988)).   Thus, we “construe[] [the statute] liberally to discourage the

selling of excess liquor.” Id. (quoting Atkins, 423 N.W.2d at 9).

      Section 123.92 previously imposed strict liability upon licensees

and permittees. Hobbiebrunken v. G & S Enters., Inc., 470 N.W.2d 19, 21

(Iowa 1991). However, in 1986, the legislature amended the section to

require plaintiffs in dramshop actions “to prove the defendant’s

knowledge of the patron’s intoxication.” Id. at 21–22. Thus, in light of
                                     9

the 1986 amendment, Banwart has the burden of proving scienter on the

part of Draught House 50.

      To maintain her cause of action, Banwart must demonstrate

Draught House 50, a licensee or permittee, sold and served alcohol to

Campbell when it knew or should have known that she was intoxicated

or would become intoxicated, and Campbell’s intoxication proximately

caused Banwart’s injury. See Horak v. Argosy Gaming Co., 648 N.W.2d

137, 147–48 (Iowa 2002). The only issue we must resolve on appeal is

whether Banwart can attribute the requisite knowledge or scienter to

Draught House 50.

      VI. Smith v. Shagnasty’s, Inc.

      The seminal case in Iowa on the issue of proof of scienter under

section 123.92 is Smith v. Shagnasty’s Inc., 688 N.W.2d 67 (Iowa 2004).

In that case, a plaintiff-patron brought a dramshop action against a bar

when an unidentified AIP struck her in the face with a beer bottle.

688 N.W.2d at 70–71. Without identifying the AIP, the bouncers in the

bar let the AIP leave the premises before the police arrived. Id. at 71.

      The district court granted the bar’s motion for summary judgment

“because on the facts presented a jury could not reasonably conclude the

bar sold and served the [AIP] alcohol and did so when it knew or should

have known she was or would become intoxicated.”            Id. at 70.     We

reversed the district court’s grant of summary judgment. Id. at 76.

      First, we addressed the intoxication requirement of the dramshop

statute. Id. at 72–73. We noted the dramshop statute does not require a

particular degree of intoxication. Id. at 73. A person is intoxicated when

he or she meets one or more of the following criteria: “(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
                                      10

has, to any extent, lost control of bodily actions or motions.” Id. at 72

(quoting Garcia v. Naylor Concrete Co., 650 N.W.2d 87, 90 (Iowa 2002)).

The degree of intoxication can range “from slight stimulation to complete

coma.” Id. at 73 (quoting State v. Yates, 132 Iowa 475, 478, 109 N.W.

1005, 1006 (1906)). If available, a person’s BAC is important evidence to

show intoxication. Id. at 72. Based on the AIP’s demeanor in the bar

and the law concerning intoxication, we found a genuine issue of

material fact existed as to whether the AIP was intoxicated under the

dramshop statute. Id. at 73.

      Next, we discussed the sold and service requirement of the

dramshop statute. Id. at 73–74. We detailed the law regarding the sold

and service requirement as follows:

      A plaintiff may meet [the “sold and served” requirement with
      proof] that an establishment where alcohol is sold generally
      holds itself out as a place where persons are “served” in the
      ordinary sense of the word, i.e., one providing premises
      where orders are taken, patrons are waited on, and drinks
      are supplied in open containers.

Id. (quoting Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 346 (Iowa 1991),

abrogated on other grounds by Thompson v. Kaczinski, 774 N.W.2d 829,
837 (Iowa 2009)). Additionally, “it shall not be necessary in every case to

prove payment in order to prove a sale within the meaning and intent of

this chapter.” Id. at 74 (quoting Iowa Code § 123.110). Based on the fact

the AIP was holding a beer bottle in the bar, we found a genuine issue of

fact existed as to whether the bar sold and served the AIP the beer. Id. at

73–74.

      Lastly, we discussed the scienter issue. Id. at 74–75. We labeled

this issue as the “thorniest issue” because the AIP was unidentified and

left the bar prior to anyone talking to her or assessing her condition. Id.
                                    11

at 74. In deciding this issue under the facts of the case, we first found

that evidence of subsequent intoxication creates an inference that the

bar sold and served beer to the AIP when it knew or should have known

she was or would become intoxicated. Id. at 75. We stated the solitary

beer the AIP was holding at the time of the attack did not alone cause her

intoxication. Id. Thus, because the last drink did not solely push the

AIP over the brink into intoxication, we inferred that at the time of

service the bar had the requisite scienter. Id.

      Specifically, we reasoned the AIP was “in a visibly intoxicated

condition” shortly after the sale and service of beer. Id. We therefore

reasoned “[the AIP] was also noticeably intoxicated at the time of service.”

Id. Thus, since the AIP was visibly intoxicated at the time of service, we

concluded a jury could find the bar knew or should have known of the

AIP’s intoxication.   Id.   We acknowledged “a ‘subsequent intoxicated

condition inference’ might not be appropriate in every case,” but stated

“the inference [was] warranted [in this case] because of the presumably

short timeframe between service and the attack.” Id.

      We also found a jury could infer the bar sold and served alcohol

when it knew or should have known the unidentified AIP was or would

become intoxicated from the bar’s conduct in allowing the AIP to leave

before the police arrived or anyone could obtain identifying information.

Id. at 75–76. We allowed this second inference because evidence of the

AIP’s potential testimony was unavailable to the injured plaintiff-patron.

Id. at 76. Moreover, there was evidence the bar deliberately let the AIP

abscond after agreeing to detain her, thereby admitting by conduct the

weakness of the bar’s case. Id.

      We held the two inferences—subsequent intoxicated condition and

intentionally letting the unidentified AIP abscond—in tandem were
                                       12

enough to create a genuine issue of material fact that the bar sold and

served alcohol when it knew or should have known the unidentified

patron was or would become intoxicated.            Id.   We did not address

whether the subsequent intoxicated condition inference alone could give

rise to a question of fact. Thus, we left that question open. With Smith

in mind, we now turn to the case at hand.

        VII. Application of Legal Principles to the Present Case.

        We start with the fact Campbell was intoxicated at the time she left

Draught House 50 around 8:30 p.m.             Officer Graham’s observations

minutes after Campbell left Draught House 50, Campbell’s admission

she was “buzzed,” and her guilty plea to the OWI charge all establish this

fact.   Additionally, around 10:14 p.m., almost three hours after the

supervisor who bought the last round left Draught House 50 and almost

two hours after Campbell left Draught House 50, Campbell’s BAC was

.143.

        In Smith, we borrowed from the reasoning of the Indiana Court of

Appeals which stated,
        [W]hen 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. at 75 (emphasis in original) (quoting Ward v. D & A Enters. of Clark

Cty., Inc., 714 N.E.2d 728, 730 (Ind. Ct. App. 1999)).

        A number of jurisdictions hold summary judgment is inappropriate

when sufficient evidence points to the AIP’s intoxicated condition shortly

after his or her visit to the dramshop, even if the record lacks evidence

regarding the AIP’s demeanor at the time of the dramshop’s service of

alcohol to the AIP. See, e.g., Kalenka v. Jadon, Inc., 305 P.3d 346, 350–
                                          13

52 (Ala. 2013); Ward, 714 N.E.2d at 730; Fairbanks v. J.B. McLoughlin

Co., 929 P.2d 433, 436 (Wash. 1997) (per curiam) (stating the record

contains evidence that the AIP did not exhibit signs of intoxication at the

banquet but finding the jury could nevertheless use evidence of her

demeanor at the accident scene to conclude she was obviously

intoxicated at the banquet); accord Speicher v. Reda, 434 A.2d 183, 184–

86 (Pa. Super. Ct. 1981) (holding the trial court erred in denying the

appellants’ motion to set aside the compulsory nonsuit when the AIP

caused a vehicular accident five or ten minutes after leaving the bar and

the investigating police officer and a witness noticed visible signs of

intoxication, although the appellants did not present any evidence of the

AIP’s condition while at the bar); Couts v. Ghion, 421 A.2d 1184, 1186,

1188 (Pa. Super. Ct. 1980) (holding the issue of whether the AIP was

visibly intoxicated when the bar served him his last drink should have

been submitted to the jury because the AIP had consumed substantial

amounts of alcohol, caused a vehicular accident forty-five minutes after

leaving the bar, and displayed signs of intoxication to the investigating

police officer, although the record lacked evidence of the AIP’s condition

when the bar served him his last drink). 2

       Fairbanks illustrates that direct evidence of intoxication at the time

of service is not required to survive summary judgment.                 929 P.2d at

436. In that case, an AIP attended a banquet for a little over three hours

and allegedly consumed two glasses of champagne. Id. at 434. Shortly

after she left, the AIP’s vehicle rear-ended the plaintiff’s vehicle at a

stoplight.    Id. A police officer arrived at the scene about ten minutes


       2Butsee Owens v. Hooters Rest., 41 So. 3d 743, 743 (Ala. 2009) (per curiam); id.
at 743–44 (Cobb, C.J., concurring); Reed v. Breton, 718 N.W.2d 770, 776–77 (Mich.
2006).
                                     14

later. Id. The officer noticed the patron slurred her speech and stumbled

as she exited her vehicle. Id. After administering field sobriety tests, the

officer arrested her for driving under the influence. Id. Approximately an

hour later, the officer performed a breathalyzer test that showed the AIP’s

BAC at .17. Id.

      The defendant offered testimony of three witnesses, all of whom

stated the AIP did not appear intoxicated. Id. at 434–35. One witness

stated the AIP gave a clear speech for an award presentation and did not

smell of alcohol. Id. at 434. Another witness who was in charge of the

banquet and watched the AIP give out awards did not notice any signs of

intoxication. Id. at 434–35. The third witness stated he did not notice

the AIP acting inebriated throughout the evening. Id. at 435. Despite

the defendant’s evidence pointing to the AIP’s sober condition at the

banquet, the Washington Supreme Court reasoned,
      A police officer’s subjective observation that the employee
      was obviously intoxicated shortly after leaving the banquet
      may raise an inference that she was obviously intoxicated
      when the employer served her, provided that the employee
      did not consume any alcohol after leaving the banquet and
      provided that no time remains unaccounted for between the
      banquet and the subsequent observation.

Id. at 436 (emphasis added).

      We agree with this analysis of the Washington Supreme Court.

The issue is not whether a party uses circumstantial evidence, as

opposed to direct evidence, to prove his or her claim because

circumstantial evidence may raise a genuine issue of material fact. See

Smith, 688 N.W.2d at 73–74. Rather, the issue is whether the party has

proffered sufficient evidence.   In regards to sufficiency of the evidence,

“[e]vidence is substantial if a reasonable person would find it adequate to

reach a conclusion.” Horak, 648 N.W.2d at 147.
                                        15

       Even cases that found summary judgment appropriate bolster our

conclusion.     In Sorensen v. Denny Nash Inc., an AIP struck three

pedestrians while driving his vehicle. 671 N.Y.S.2d 559, 560 (App. Div.

1998). The AIP had been drinking at his friend’s house and two taverns

prior to the accident. Id. At the second location, a tavern called Silver

Dollar, the AIP consumed drinks from 10:45 p.m. to 12 a.m. Id. Silver

Dollar tendered testimony to show that the AIP was not visibly

intoxicated when it had served him alcohol.             Id.   In opposition, the

plaintiff submitted the affidavit of a forensic pathologist, which stated the

AIP must have displayed signs of intoxication while at the Silver Dollar

because the AIP was visibly intoxicated at the accident scene around

3:15 a.m.      Id. at 560–61.        The court held “proof that [the AIP]

demonstrated visible signs of intoxication at 3:15 [a.m.], after patronizing

[the third bar], [does not] provide a sound basis for drawing inferences

about his appearance or demeanor three hours earlier at the Silver

Dollar.” Id. at 561 (emphasis added).

       Banwart’s case is distinguishable from Sorensen. Unlike the AIP in

Sorensen who drank alcohol at three different locations and struck the

pedestrians three hours after leaving the Silver Dollar, Campbell drank

only at Draught House 50 on the day in question and rear-ended

Banwart’s vehicle within minutes after leaving Draught House 50.

       In Alaniz v. Rebello Food & Beverage, L.L.C., fifty-five minutes after

an AIP left the second bar, the AIP struck and killed two people with his

vehicle. 165 S.W.3d 7, 10 (Tex. App. 2005). The Texas Court of Appeals

examined whether the district court properly granted a no-evidence

summary judgment in favor of the defendants. 3 Id. at 12–17. The court


       3The Texas Court of Appeals also examined whether the district court properly

granted traditional summary judgment in favor of the defendants. Alaniz, 165 S.W.3d
                                           16

of appeals acknowledged the utility of circumstantial evidence. Id. at 15.

However, after considering the strength of the plaintiffs’ proffered

circumstantial evidence, the court of appeals concluded the evidence

failed to transcend mere suspicion. Id. The plaintiffs had offered a video

tape of the AIP at a convenience store where he stopped a couple minutes

after the accident. Id. at 13. They had also offered the testimony of a

customer who was at the convenience store when the AIP was there; the

customer testified the AIP looked obviously intoxicated. Id.

       The court of appeals reasoned because the AIP was at the

convenience store about fifty-five minutes after leaving the second bar,

both the video tape and the customer’s testimony only showed that the

AIP was intoxicated at the time he was at the convenience store.                       Id.

Thus, the court of appeals concluded “[u]nder the facts of this case, this

evidence does not establish that [the AIP] was obviously intoxicated while

being served at the [second bar].” Id.

       Banwart’s case is distinguishable from Alaniz. Unlike the AIP in

Alaniz who left the second bar fifty-five minutes before the accident

occurred, Campbell left Draught House 50—the only bar at which she

had consumed alcohol—a few minutes before she struck Banwart’s

vehicle. See Ward, 714 N.E.2d at 730 (“Factors [that] can be considered

in determining whether a person was intoxicated to another person’s

knowledge include . . . the person’s condition shortly after leaving.”

________________________
at 17–19. The defendants presented the affidavit and deposition testimony of the server
who served drinks to the AIP at the second bar. Id. at 17. The server stated the AIP did
not appear intoxicated at the time she served the drinks to him. Id. The defendants
also provided other witness testimony testifying to the same effect. Id. at 18. In light of
the defendants’ evidence, the court of appeals stated the plaintiffs failed to present
evidence raising a genuine issue of material fact with regard to whether the AIP
appeared obviously intoxicated while at the second bar. Id. Thus, the court of appeals
affirmed the district court’s grant of traditional summary judgment in favor of the
defendants. Id. at 19.
                                           17

(quoting Booker, Inc. v. Morrill, 639 N.E.2d 358, 362 (Ind. Ct. App.

1994))). In fact, in Alaniz, the Texas Court of Appeals acknowledged “[a]n

inference the alcohol provider knew or should have known an individual

was intoxicated is more reasonable when an accident occurs within a

close temporal proximity to his leaving the provider’s establishment.”

165 S.W.3d at 15.          Unlike the lack of temporal proximity in Alaniz,

Banwart established close temporal proximity between Campbell’s

departure from Draught House 50 and the accident. 4

       Moreover, in Alaniz, the record lacked evidence of the AIP’s

whereabouts during the time interval after he left the second bar and

before the deadly accident. Here, all of Campbell’s time is accounted for

between Draught House 50 and the accident because she did not

consume any more alcohol after leaving Draught House 50.

       Viewing the evidence in the light most favorable to Banwart and

drawing all legitimate inferences the evidence bears to find a genuine

issue of material fact, we find Banwart has proffered sufficient

circumstantial evidence such that a reasonable fact finder could

attribute scienter to Draught House 50. Upon arriving at the accident

scene, Officer Graham spoke with Campbell and could smell the odor of

alcohol wafting from her. He observed that she had bloodshot, watery


        4We are not commenting on what explicitly constitutes close temporal proximity.

There is no magic number. Rather, answering the question of whether a dramshop
defendant possessed the requisite knowledge comes down to a fact-based analysis.
Compare Kalenka, 305 P.3d at 351 (holding summary judgment was not warranted
when the AIP stayed at the bar for two to four hours, drank no alcohol before arriving at
or after leaving the bar, consumed around eighteen to nineteen drinks, exhibited signs
of intoxication forty-five minutes after leaving the bar, and had a BAC of .27 at the time
of the altercation), with Sorensen, 671 N.Y.S.2d at 560–61 (holding the plaintiff
submitted insufficient evidence to establish that the second location served alcohol to
the AIP while he was visibly intoxicated when the AIP consumed alcohol at three
different locations and had left the second location three hours before the accident
occurred).
                                      18

eyes. Campbell slurred her speech when she stated she felt “buzzed.”

She had difficulty following simple instructions when Officer Graham

asked for her license, registration, and insurance.           Campbell did not

properly   perform   the    field   sobriety   tests   that    Officer   Graham

administered. Furthermore, Campbell did not consume any alcohol after

leaving Draught House 50 and all time remains accounted for between

Draught House 50 and Officer Graham’s subsequent observations. Even

though at least an hour may have passed from the time Draught House

50 served Campbell the last beer, she nevertheless exhibited observable

signs of intoxication at the accident scene and the police station.          In

addition to these external indicators, Officer Graham administered a

Datamaster test, which showed a BAC of .143. Campbell ultimately pled

guilty to the OWI charge.

      Evidence that Campbell did not exhibit signs of intoxication while

at Draught House 50 does not preclude this case from going to the jury.

The jury is free to disbelieve Campbell’s testimony regarding her

demeanor while at Draught House 50. See State v. Mitchell, 568 N.W.2d

493, 503 (Iowa 1997) (“Generally, the credibility of witnesses is left to the

jury.”); Reed v. Breton, 718 N.W.2d 770, 783 (Mich. 2006) (Kelly, J.,

dissenting) (“While it is true that all of defendant’s witnesses testified

that [the AIP] was not visibly intoxicated, that does not prevent the cases

from going to the jury.     It is not uncommon for a jury to disbelieve

multiple eyewitnesses.”).

      In Fairbanks, the Washington Supreme Court reversed summary

judgment dismissal that the trial court had granted in favor of the

defendant. 929 P.2d. at 436. The court took into account the defendant

had presented testimony from three witnesses who declared the AIP was

not intoxicated at the banquet and the AIP’s declaration that she had
                                            19

allegedly consumed drinks at a lounge after leaving the banquet. 5 Id. at

434–35. However, the court nevertheless stated a reasonable fact finder

could find the AIP left the banquet at 10:30 p.m. and caused the accident

just twenty minutes later.            Id. at 436.       The police officer’s and the

plaintiff’s observations of the AIP at the accident scene raised a genuine

issue of material fact whether the AIP was obviously intoxicated at the

banquet. Id.

       Furthermore, viewing the evidence in the light most favorable to

Banwart and drawing all legitimate inferences therefrom, we find a jury

could also disbelieve Campbell’s testimony regarding the number of

drinks she had at Draught House 50 and when Draught House 50 served

those drinks. Based on Officer Graham’s observations and Campbell’s

BAC of .143 at 10:14 p.m., a fact finder could find Campbell had more

than three drinks. We know she did not have anything to drink after

8:30 p.m. We also recognize “alcohol naturally dissipates from the body

shortly after its consumption.” State v. Johnson, 744 N.W.2d 340, 342

(Iowa 2008). These facts allow the fact finder to infer that Campbell’s

BAC was substantially higher than .143 when Draught House 50 served

her alcohol.

       Under the facts of this case, Officer Graham’s observations of

Campbell a few minutes after she left Draught House 50, in addition to

Campbell’s BAC of .143, raise a sufficient factual issue as to whether

Draught House 50 had the requisite scienter at the time it served alcohol

to Campbell.        Thus, Draught House 50 did not meet its burden in

showing the absence of a genuine issue of material fact concerning the

scienter element. In granting summary judgment, the district court may

       5The  court noted the AIP declared this for the first time after the plaintiff settled
with the AIP and sued the defendant. Id. at 434.
                                    20

not try issues of fact “but must determine only whether there are issues

to be tried.” Parish v. Jumpking, Inc., 719 N.W.2d 540, 543 (Iowa 2006);

accord Bauer v. Stern Fin. Co., 169 N.W.2d 850, 853 (Iowa 1969) (“In

ruling on a motion for summary judgment, the court’s function is to

determine whether such a genuine issue exists, not to decide the merits

of one which does.”).

      Our reasoning and holding today is consistent with those in Smith.

Again, we left the question open in that case whether the subsequent

intoxicated inference alone could raise a genuine issue of material fact as

to the scienter requirement. Furthermore, we find the instant case is no

weaker than that in Smith.        In Smith, the bouncers allowed the

unidentified AIP to abscond.    688 N.W.2d at 76.      We considered the

bouncers’ actions as giving the plaintiff-patron the run-around.        Id.

Because we did not have any identifying information regarding the AIP

and we had no evidence of the AIP’s BAC, we combined this run-around

inference with the subsequent intoxicated condition inference to

conclude there was a genuine issue of material fact concerning the

scienter requirement. Id. Here, unlike in Smith, Banwart has evidence of

Campbell’s BAC, which indicates a very high BAC after she left the bar.

      Moreover, Smith does not pigeonhole the definition of temporal

proximity to merely moments after a bar’s service of alcohol to an AIP.

Again, summary judgment is improper when sufficient evidence points to

the AIP’s intoxicated condition shortly after his or her visit to the

dramshop, even if the record lacks evidence regarding the AIP’s

demeanor at the time of the dramshop’s service of alcohol to the AIP.

See, e.g., Kalenka, 305 P.3d at 350–51 (noting the record contains no

direct evidence of the AIP’s appearance or conduct at the bar); Ward,

714 N.E.2d at 729–30 (noting the AIP consumed an unknown amount of
                                    21

alcohol at the bar and the bar failed to show the AIP consumed alcohol

elsewhere); Fairbanks, 929 P.2d at 436 (noting the record contains

contradicting evidence of the AIP’s demeanor at the banquet and at the

accident scene).

      Viewing the evidence in the light most favorable to Banwart and

drawing all legitimate inferences therefrom, we conclude a reasonable

fact finder could find Draught House 50 knew or should have known

Campbell was intoxicated or would become intoxicated at the time it

served her alcohol.

      VIII. Disposition.

      We vacate the decision of the court of appeals and reverse the

judgment of the district court. Viewing the evidence in the light most

favorable to Banwart, we find a genuine issue of material fact exists as to

whether Draught House 50 knew or should have known Campbell was or

would become intoxicated when it served alcohol to her.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Mansfield, Waterman, and Zager, JJ.,

who dissent.
                                       22

                              #16–1218, Banwart v. 50th Street Sports, L.L.C.

MANSFIELD, Justice (dissenting).

      I respectfully dissent. The issue is whether Draught House 50

      sold and served any beer, wine, or intoxicating liquor to
      [Michelle Campbell] when the licensee or permittee knew or
      should have known the person was intoxicated, or . . . sold
      to and served [Campbell] to a point where the licensee or
      permittee knew or should have known the person would
      become intoxicated.

See Iowa Code § 123.92(1)(a) (2015).

      The majority opinion creates, in effect, an inference of negligence

whenever a patron leaves a licensee or permittee in an intoxicated

condition.   This isn’t what the statute says, and it isn’t what Smith v.

Shagnasty’s, Inc. says. See 688 N.W.2d 67 (Iowa 2004).

      In Smith, the plaintiff was struck on the head with a beer bottle by

an intoxicated assailant while visiting a bar. Id. at 70. She had recently

had a hostile encounter with the assailant in the bar’s restroom.         Id.

Upon leaving the restroom, the plaintiff and her companion found the

assailant waiting, “muttering something unintelligible under her breath

and holding a beer bottle in her hand.” Id. The assailant had “acquired

[the beer bottle] after leaving the restroom.”     Id.   The assailant was a

“loudmouth” and the plaintiff and her companion both concluded she

was intoxicated. Id. The assailant hit the plaintiff in the face with the

beer bottle, slicing up her face. Id. In the ensuing struggle, the plaintiff

managed to get hold of the assailant by the hair.         Id.   Bar bouncers

intervened. Id. The plaintiff agreed to let go of the assailant only after

the bouncers promised to detain her until police arrived. Id. at 70–71.

But the bouncers broke their word and let the Jane Doe assailant “slip

into the night.” Id. at 71.
                                     23

      We held that these particular facts were enough for the plaintiff to

get her case to the jury. We said,

      We recognize that such a “subsequent intoxicated condition
      inference” might not be appropriate in every case, but in this
      case the inference is warranted 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. In this case, the inference tends
      to show that when Shagnasty’s sold and served Doe the beer
      in question, Shagnasty’s knew or should have known she
      (1) was already intoxicated or (2) would become intoxicated.

Id. at 75.

      We then devoted a separate paragraph of the opinion to “the

evidence in the record that tends to show Shagnasty’s intentionally let

Doe abscond after agreeing to hold her.” Id. We concluded,

      In sum, we hold that two inferences, taken together, lead us
      to the conclusion that a reasonable jury could find a genuine
      issue of material fact on the scienter requirement of Smith’s
      dramshop claim.      The first inference arises from Doe’s
      intoxicated condition shortly after the presumed time of
      service, the second from the bouncers actions that resulted
      in Doe’s unknown identity. Summary judgment on the issue
      of scienter was not proper.

Id. at 76.

      Even accepting that Smith would have come out the same way
without the bar having suspiciously let the intoxicated assailant get

away, the facts here are quite different.      There is no evidence that

Michelle Campbell was seen conspicuously intoxicated in Draught House

50 right after having been served a beer.

      Campbell and six others were sitting at a table when they were

served on a Friday late afternoon following work. While it is certainly fair

to require a tavern to pay attention to the amount of alcohol it is serving

to a particular customer, it’s entirely possible that Campbell was

drinking beverages not ordered by or for herself.      And just because a
                                              24

trained police officer observed signs of intoxication after Campbell was

involved in a car accident, that does not mean Campbell would have

appeared noticeably intoxicated to a server while part of a group at a

table.

         The fact-specific nature of these dramshop cases explains why we

declined to establish a blanket inference of negligence based on

intoxication in Smith, and also why we should decline to do so today. For

example, I might agree that the present record would be enough to get to

the jury if Campbell had been ordering and drinking alcoholic beverages

by herself at the bar, like Rick in Casablanca, 6 regardless of the amount

Campbell claimed to have consumed.                 But by establishing a blanket

inference, the majority routinely sends to the jury all cases where the

patron was intoxicated on leaving the establishment, regardless of their

facts. Whether the patron was part of a group singing “Die Wacht am

Rhein” obnoxiously, singing “La Marseillaise” patriotically, or just

behaving quietly, negligence is inferred.

         Further factual development was far from an insurmountable task

here. The plaintiff could have served interrogatories on Draught House

50 or taken additional depositions. Today, unlike in the days of Rick’s
Café, credit cards are frequently used. (Although it remains true, as Rick

would say, “Your cash is good at the bar.”) Campbell identified by name

everyone seated at her table. The plaintiff could have served a document

request on Draught House 50 for any receipts for those individuals. That

alone might have shown that more rounds were served than the three

rounds claimed by Campbell.




         6Casablanca   (Warner Bros. 1942).
                                     25

      Courts have to deal with human nature. The customer will tend to

understate the amount of alcohol she or he consumed and the server will

tend to remember that the customer looked fine. Even without knowing

the size of the bottles or Campbell’s body weight, there is reason to doubt

her claim that she consumed only three bottles of beer, spaced out over a

four-hour time period. But this court’s response should not be to modify

our precedent and adopt an overbroad blanket inference of negligence

from intoxication.     Rather, we should insist on further factual

development    concerning     the   actual   circumstances    within   the

establishment that served the alcoholic beverages, such as occurred in

Smith and the out-of-state cases relied on by the majority.

      For the foregoing reasons, I would affirm the judgment of the

district court and the decision of the court of appeals.

      Waterman and Zager, JJ., join this dissent.
