Berte v. Bode

• Citation: 692 N.W.2d 368
• Decision Date: 11 February 2005
• Docket Number: No. 03-1147.,03-1147.
• Parties: Chad M. BERTE, Individually, and as Administrator of the Estate of Nicole Berte, Deceased, and as Guardian and Conservator of Bryan Berte, A Minor, Appellee, v. Randy Lee BODE, and Pep's, Inc., Appellant.
• Court: United States State Supreme Court of Iowa

692 N.W.2d 368

Chad M. BERTE, Individually, and as Administrator of the Estate of Nicole Berte, Deceased, and as Guardian and Conservator of Bryan Berte, A Minor, Appellee, v. Randy Lee BODE, and Pep's, Inc., Appellant.

No. 03-1147.

Supreme Court of Iowa.

February 11, 2005.

Daniel E. Dekoter of Dekoter, Thole & Dawson, P.L.C., Sibley, for appellant.

Conrad F. Meis of Buchanan, Bibler, Buchanan & Gabor, Algona, for appellee. LAVORATO, Chief Justice.

In this dramshop action, the district court denied the dramshop defendant's motion for summary judgment. The defendant admitted for the purposes of the motion that it sold and served alcoholic beverages to a patron, and as a result the patron became intoxicated. It is undisputed that shortly thereafter the intoxicated patron raped and killed another patron. In its motion, the defendant contended that the intoxicated patron's actions in raping and killing the other patron was, as a matter of law, an intervening and superseding cause thereby relieving it of any liability to the deceased patron's surviving minor son. We granted the defendant's motion for interlocutory appeal. We affirm the decision of the district court and remand for further proceedings.

I. Scope of Review.

We recently summarized our rules concerning motions for summary judgment in Luttenegger v. Conseco Financial Servicing Corp.:

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. There is no fact issue if the only dispute concerns the legal consequences flowing from the undisputed facts. Our review is therefore limited to whether a genuine issue of material fact exists and whether the district court correctly applied the law.

671 N.W.2d 425, 431 (Iowa 2003) (citations omitted).

II. Background Facts and Proceedings.

The following facts are undisputed.

Pep's Inc. [hereinafter Pep's] is a liquor licensee under Iowa Code chapter 123. On the evening of November 17, 2000 and into the early morning hours of November 18, Randy Lee Bode and Nicole Berte were patrons at Pep's. Between 1:30 and 2:00 a.m., Nicole agreed to give Bode a ride home in her vehicle.

On the evening in question, employees of Pep's sold and served alcoholic beverages to Bode, and as a result Bode became intoxicated. Some time after the two left Pep's, Bode raped Nicole and strangled her to death. As a result of this incident, which took place away from Pep's, the State initially charged Bode with first-degree murder and first-degree sexual abuse. Eventually, however, Bode pled guilty to voluntary manslaughter and second-degree sexual abuse.

On November 18, 2002, Chad M. Berte, Nicole's husband, individually, and as administrator of the estate of Nicole Berte, and as guardian and conservator of Bryan Berte, a minor, filed a two-count petition against Bode and Pep's. Bryan is Nicole's son.

The first count of the petition alleges assault and battery and wrongful death against Bode. The second count alleges a dramshop action against Pep's pursuant to Iowa Code section 123.92 (2001), and attached to the petition is a notice of intention to bring such action. The notice informs Pep's of Chad Berte's intention to file a dramshop action in his capacity as guardian and conservator for Bryan Berte, a minor. Iowa Code section 123.93 requires the injured person to give written notice of the intention to file a dramshop action within six months of the injury's occurrence. Iowa Code § 123.93. No notice was filed on behalf of Chad Berte individually. Nor was the time period extended for any of the reasons listed in section 123.93. Therefore, the dramshop claim is solely for Bryan Berte [hereinafter Berte].

Later, Pep's filed a motion for summary judgment, which Berte resisted. An affidavit of one of Bode's former girlfriends was attached to Berte's resistance. In the affidavit, the former girlfriend states that Bode was generally a nice guy, however, he "became more violent and aggressive when drunk."

Following a hearing, the district court overruled the motion. Thereafter, we granted Pep's application for interlocutory appeal.

III. Issue.

Pep's contends on appeal as it did in the district court that as a matter of law the sale and service of liquor to a person is not a proximate cause of that person's later act of intentional murder. Rather, the intentional act of murder is a superseding intervening cause that breaks the casual link between the intoxication and the intoxicated person's later injurious acts. For that reason, Pep's argues, it should, as a matter of law, be relieved of liability in this case. The district court, Pep's further argues, erred in concluding otherwise.

IV. Analysis.

A. Background. According to one writer,

[a]t common law, courts refused to recognize a cause of action arising out of the sale or furnishing of intoxicating beverages. The rationale underlying this refusal was that individuals, drunk or sober, were responsible for their own torts. The courts held that drinking the intoxicant, not furnishing it, was the proximate cause of the injury. In other words, the common law considers the act of selling the intoxicating beverage as too remote to serve as the proximate cause of an injury resulting from the negligent conduct of the purchaser of the drink.

Richard Smith, Note, A Comparative Analysis of Dramshop Liability and a Proposal for Uniform Legislation, 25 J. Corp. L. 553, 555 (2000); see also Slager v. HWA Corp., 435 N.W.2d 349, 351 (Iowa 1989).

Like a number of states, Iowa passed what is commonly referred to as a dramshop statute. Slager, 435 N.W.2d at 351. The statute gives parties who are injured by the intoxication of other persons a right of action against the persons from whom the intoxicants were procured. Id. One of the earliest statutes was before this court in Bistline v. Ney Bros., 134 Iowa 172, 111 N.W. 422 (1907). The statute in question provided:

Every wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication ... shall have a right of action in his or her own name against any person who shall, by selling or giving to another contrary to the provisions of this chapter any intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages....

Iowa Code Ann. § 2418 (1897) (emphasis added).

The italicized language "by any intoxicated person" remains in our present day statute. Compare Iowa Code Ann. § 2418 (1897), with Iowa Code § 123.92 para. 1 (2001). The italicized language "in consequence of the intoxication" has been replaced by similar language: "resulting from the intoxication of a person." Id.

The present day statute, which is the subject of this action, provides:

Any person who is injured in person or property or means of support by an intoxicated person or resulting from the intoxication of a person, has a right of action for all damages actually sustained, severally or jointly, against any licensee or permittee, whether or not the license or permit was issued by the division or by the licensing authority of any other state, 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. If the injury was caused by an intoxicated person, a permittee or licensee may establish as an affirmative defense that the intoxication did not contribute to the injurious action of the person.

Iowa Code § 123.92 para. 1 (2001).

B. Causation in fact versus proximate cause. In Bistline, the court explained the meaning of "by any intoxicated person" and "in consequence of the intoxication," an explanation that is still valid under our present day statute. "By any intoxicated person" is the phrase that controls our decision under the facts of this case. Because both phrases relate to the concept of causation, we think it would aid our analysis to first discuss that concept before undertaking to explain the difference between "by any intoxicated person" and "in consequence of the intoxication."

Causation has two components: "(1) the defendant's conduct must have in fact caused the plaintiff's damages (generally a factual inquiry) and (2) the policy of the law must require the defendant to be legally responsible for the injury (generally a legal question)." Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996). We apply a "but-for" test to determine whether the defendant's conduct was a cause in fact of the plaintiff's harm. Id. at 817. Under that test,

the defendant's conduct is a cause in fact of the plaintiff's harm if, but-for the defendant's conduct, that harm would not have occurred. The but-for test also implies a negative. If the plaintiff would have suffered the same harm had the defendant not acted negligently, the defendant's conduct is not a cause in fact of the harm.

Dan B. Dobbs, The Law of Torts § 168, at 409 (2000) (footnote omitted) [hereinafter Dobbs]; accord Gerst, 549 N.W.2d at 815.

The difference between causation in fact and proximate cause has been described this way:

Proximate cause requirement. To prevail in a negligence action, the plaintiff must bear the burden of showing that the defendant's negligent conduct was not only a cause in fact of the plaintiff's harm, but also a proximate or legal cause.

Function in limiting scope of responsibility. Proximate cause rules are among those rules that seek to determine the appropriate scope of a negligent defendant's liability. The central goal of the proximate cause requirement is to limit

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