Lewis v. State
| Decision Date | 29 June 1977 |
| Docket Number | No. 58137,58137 |
| Citation | 195 A.L.R.3d 1221,256 N.W.2d 181 |
| Parties | William C. LEWIS, Administrator of the Estate of Virginia Lewis, Deceased, William C. Lewis, and Monica Lewis, Appellees, v. STATE of Iowa, Appellant. Phillip OGAN and Sheila Ogan, Appellees, v. STATE of Iowa, Appellant. |
| Court | Iowa Supreme Court |
Richard C. Turner, Atty. Gen., Stephen C. Robinson, Asst. Atty. Gen., for appellant.
Wilson, Rhinehart & Bikakis and Shull, Marshall & Marks, Sioux City, for appellees.
Heard before MOORE, C. J., and MASON, UHLENHOPP, HARRIS and McCORMICK, JJ.
This is an authorized interlocutory appeal by defendant, State of Iowa, from an adverse ruling of the trial court denying the State's motion for summary judgment. Rule 332, Rules of Civil Procedure. The challenged ruling stems from two separate law actions commenced in the Woodbury District Court September 12, 1972, seeking damages for injuries sustained by plaintiffs as a result of an automobile accident in Sioux City November 14, 1970. In one action Williams C. Lewis, individually and as administrator of the estate of his wife Virginia Lewis, was joined with Monica Lewis, his daughter, as plaintiffs. In the other action Phillip Ogan and Sheila Ogan (sometimes spelled Shelia in this record) were plaintiffs.
Plaintiffs and decedent were occupants of an automobile owned and being driven by William C. Lewis in the southbound lane of Interstate 29 when a northbound automobile driven by one Lawrence Lee Stroman crossed the median dividing said lanes and struck the Lewis vehicle. The collision resulted in the death of Virginia Lewis, property damage and personal injuries.
All references to statutes in the course of this opinion will be to the 1966 Iowa Code.
Both petitions asserted three identical theories of recovery in separate counts. Count I was based upon sections 123.43 and 129.2, The Code, and alleged Stroman's intoxicated condition at the time of the accident was the result of a negligent and wrongful sale of intoxicating liquor by the State through its liquor store employees to Stroman, a minor under the law applicable at that time. Section 599.1. Count II was based upon the statutory provisions relied upon in Count I and sections 25A.2(5) and 25A.4, The Code. Count III, apparently seeking relief under the provisions of chapter 25A set forth specifications of negligence dealing with the sale of liquor to Stroman, the design and construction of Interstate 29 and the failure to erect a barrier on the median at the site of the accident.
Subsequent to the filing of its answers and plaintiffs' replies thereto, the State filed applications for adjudication of law points pursuant to rule 105, R.C.P., requesting the court hold the State was not a "person" subject to liability under the provisions of section 129.2, The Code. The trial court, following submission of briefs by the parties, determined the State was not a "person" within the meaning of section 129.2 and that the provisions of chapter 25A "did not bring * * * (the State) within the purview" of that section. The trial court concluded its ruling, which effectively dismissed the first two counts of each division of both petitions, by ordering plaintiffs to recast their petitions pursuant to rule 81, R.C.P. The recast petitions, filed August 24, 1973, asserted only the theory of recovery set forth in Count III of the original petitions.
May 31, 1974, the State filed a motion for summary judgment arguing that plaintiffs' petitions were jurisdictionally defective in that (1) the claims asserted therein were barred by sections 123.13 and 25A.4, (2) the sale of liquor to a minor contrary to law is not a proximate cause of the injury or damage complained of, (3) liability for the sale of liquor to a minor is actually premised upon strict liability and thus cannot be maintained under chapter 25A, and (4) the claims pertaining to the design and construction of Interstate 29 are barred by the discretionary function exception of section 25A.14(1).
Plaintiffs filed a resistance to the motion and attached thereto the affidavit of one Richard C. Nurre, a consulting engineer with offices in Sioux City, as authorized by rule 237(c), R.C.P. The affiant stated, with supporting authority, that there should have been "a clear, visual demarkation between pavement and median area" and mentioned the possibility that there should have been warning signs at the site of the accident "to alert drivers of construction taking place."
The State made a motion to strike the affidavit attached to plaintiffs' resistance to the motion for summary judgment on various grounds, including the contention it was irrelevant and immaterial to any issue raised by the pleadings in the case. The trial court reserved its ruling on the motion to strike and proceeded to hear arguments on the summary judgment motion.
At some point not entirely clear from the record the two lawsuits were consolidated.
February 19, 1975, the trial court overruled the State's motion to strike the affidavit attached to plaintiffs' resistance to summary judgment and ruled as follows on the State's summary judgment motion:
"And now being duly advised in the premises it is Ordered that Defendant's Motions for Summary Judgment are overruled as to each ground urged in four separate divisions of each motion."
From that ruling the State sought and obtained leave of this court to bring this interlocutory appeal. Plaintiffs' attempted cross appeal, seeking review of the trial court's adjudication of law points, was dismissed as an unauthorized interlocutory appeal.
The State contends the trial court erred in the following respects:
(1) In overruling division 1 of the State's motion for summary judgment wherein it was argued the petitions were jurisdictionally defective in that they asserted a claim barred by sections 25A.4 and 123.13, The Code.
(2) In overruling division 2 of the State's motion for summary judgment wherein it was argued the petitions were jurisdictionally defective in that the sale of liquor to a minor is not a proximate cause of injury or damage subsequently sustained.
(3) In overruling division 3 of the State's motion for summary judgment wherein it was argued the petitions were jurisdictionally defective in that contrary to the allegations the claim arising from the sale of liquor to a minor is not grounded upon negligence but is actually based upon strict liability which cannot serve as the basis for an action under chapter 25A, The Code.
(4) In overruling division 4 of the State's motion for summary judgment wherein it was argued the petitions were jurisdictionally defective in that the claims concerning the design and construction of Interstate 29 were barred by the discretionary function exception of section 25A.14(1), The Code.
(5) In overruling the State's motion without ruling separately on each ground asserted therein in violation of rule 118, R.C.P.
I. This court's review of a summary judgment determination is guided by the same principles utilized by a trial court in making that determination.
The purpose of summary judgment is to enable a judgment to be obtained promptly and without the expense of a trial when there is no genuine and material fact issue present. Movant is assigned the burden of demonstrating the absence of any such issue. The court must examine, in the light most favorable to the party opposing the motion, all material properly before it, including the pleadings, admissions, depositions, answers to interrogatories and affidavits, to determine whether any genuine issue of a material fact is generated thereby. If, upon this examination, the court determines no such issue is present, and, the movant is entitled to judgment as a matter of law, entry of summary judgment is proper. Daboll v. Hoden, 222 N.W.2d 727, 731-732 (Iowa 1974); Davis v. Comito, 204 N.W.2d 607, 608, 611-612 (Iowa 1973); Goodwin v. City of Bloomfield, 203 N.W.2d 582, 588 (Iowa 1973).
II. The State contends its assertion in division 1 of the motion for summary judgment that plaintiffs' claims were barred by sections 25A.4 and 123.13, The Code, is meritorious and was erroneously overruled by the trial court.
It should be noted here the State's contention is based upon an alleged absence of subject matter jurisdiction. Specifically, the State maintains plaintiffs' cause of action is not allowed by the provisions of chapter 25A, The Code. For reasons explained in division VI hereof, the State's jurisdictional contentions must be treated as if raised in a motion to dismiss and resolved accordingly. In any event, the State's position is without merit and will not serve as the basis for the desired relief.
The State argues section 25A.4, in conjunction with section 123.13, precludes plaintiffs' claims based upon the sale of liquor to Stroman.
Section 25A.4 provided in part as follows:
Section 123.13 provided:
"The commission (Iowa Liquor Control Commission), or any member of the commission, shall not be personally liable for any action at law for damages sustained by any person because of any action performed or done by the commission, or any member of the commission, in the performance of their respective duties in the administration and in the carrying out of the purposes and provisions of this chapter."
The State maintains a state liquor store employee is a "member of the commission" within the meaning of section 123.13, and consequently, since the employee cannot be held liable the State is immune from suit and liability under the provisions of section 25A.4 set out above.
This contention can be summarily dismissed. A reading of chapter 123 ...
To continue reading
Request your trial
-
Corrigan v. United States, Civ. A. No. 84-787-A.
...Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963); Elsperman v. Plump, 446 N.E.2d 1027 (Ind.Ct.App.1983); Lewis v. State, 256 N.W.2d 181 (Iowa 1977); Pike v. George, 434 S.W.2d 626 (Ky.App.1968); Michnick-Zilberman v. Gordon's Liquor Store, 390 Mass. 6, 453 N.E.2d 430 (Mass. 1983......
-
Sorensen by Kerscher v. Jarvis
...Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980). Indiana: Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966). Iowa: Lewis v. State, 256 N.W.2d 181 (Iowa 1977). Kentucky: Pike v. George, 434 S.W.2d 626 Massachusetts: Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18 (1968). M......
-
Tebo v. Havlik
...Mutual Implement & Hardware Ins. Co. v. Dunkelberger, 172 N.W.2d 137 (Iowa 1969), partially overruled on other grounds Lewis v. State, 256 N.W.2d 181, 189 (Iowa 1977); see also Chicago, R.I. & P.R. Co. v. Chicago & N.W. R. Co., 280 F.2d 110 (CA8, 1960), cert. den., 364 U.S. 931, 81 S.Ct. 37......
-
Baatz v. Arrow Bar, 15875
...the plaintiff therein and to those causes of action occurring on and after the date of the remittitur in the case. See also Lewis v. State, 256 N.W.2d 181 (Iowa 1977); City of Sioux Falls v. Mini-Kota Art Theatres, 247 N.W.2d 676 (S.D.1977) (where prior settled South Dakota law is overruled......