Rhonda BANWART, Appellant, v. 50TH STREET SPORTS, L.L.C. D/B/A Draught House 50, Appellee.

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.
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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.
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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.
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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
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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
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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.
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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,
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“[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
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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
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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.
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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
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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–
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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).
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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.
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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).
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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.