Berte v. Bode, No. 03-1147.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLAVORATO, Chief Justice.
Citation692 N.W.2d 368
PartiesChad 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.
Decision Date11 February 2005
Docket NumberNo. 03-1147.

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.


692 N.W.2d 369
Daniel E. Dekoter of Dekoter, Thole & Dawson, P.L.C., Sibley, for appellant

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

692 N.W.2d 370
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

692 N.W.2d 371
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
...

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27 practice notes
  • Benjamin Feld v. Borkowski, No. 07-1333.
    • United States
    • United States State Supreme Court of Iowa
    • October 22, 2010
    ...Summary judgment is appropriate when the moving party proves no genuine issue of material fact exists on the record. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). If reasonable minds can differ on how a material fact issue should be resolved, summary judgment should not be granted. Hills ......
  • Merriam v. National Union Fire Ins. Co. of Pitts., No. 4:07-cv-130.
    • United States
    • U.S. District Court — Southern District of Iowa
    • October 7, 2008
    ...the policy of the law must require the defendant to be legally responsible for the injury (generally a legal question).'" Berte v. Bode, 692 N.W.2d 368, 372 (Iowa 2005) (quoting Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996)). Thus, Iowa courts evaluate causation using a two prong appro......
  • Wermerskirchen v. Canadian Nat'l R.R., No. 18-2039
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 2021
    ...have avoided his serious injuries."Factual cause" used to be called (with no less clarity) "cause in fact." See, e.g. , Berte v. Bode , 692 N.W.2d 368, 372 (Iowa 2005). Regardless, the absence of such a causal connection has sustained summary judgment in a number of train-crossing collision......
  • Sweeney v. City of Bettendorf, No. 07-0127.
    • United States
    • United States State Supreme Court of Iowa
    • March 13, 2009
    ...123 (Iowa 2005). Summary judgment is appropriate when the moving party shows there is no genuine issue of material fact. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). Summary judgment should not be granted if reasonable minds can differ on how a material factual issue should be resolved. ......
  • Request a trial to view additional results
27 cases
  • Benjamin Feld v. Borkowski, No. 07-1333.
    • United States
    • United States State Supreme Court of Iowa
    • October 22, 2010
    ...Summary judgment is appropriate when the moving party proves no genuine issue of material fact exists on the record. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). If reasonable minds can differ on how a material fact issue should be resolved, summary judgment should not be granted. Hills ......
  • Merriam v. National Union Fire Ins. Co. of Pitts., No. 4:07-cv-130.
    • United States
    • U.S. District Court — Southern District of Iowa
    • October 7, 2008
    ...the policy of the law must require the defendant to be legally responsible for the injury (generally a legal question).'" Berte v. Bode, 692 N.W.2d 368, 372 (Iowa 2005) (quoting Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996)). Thus, Iowa courts evaluate causation using a two prong appro......
  • Wermerskirchen v. Canadian Nat'l R.R., No. 18-2039
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 2021
    ...have avoided his serious injuries."Factual cause" used to be called (with no less clarity) "cause in fact." See, e.g. , Berte v. Bode , 692 N.W.2d 368, 372 (Iowa 2005). Regardless, the absence of such a causal connection has sustained summary judgment in a number of train-crossing collision......
  • Sweeney v. City of Bettendorf, No. 07-0127.
    • United States
    • United States State Supreme Court of Iowa
    • March 13, 2009
    ...123 (Iowa 2005). Summary judgment is appropriate when the moving party shows there is no genuine issue of material fact. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). Summary judgment should not be granted if reasonable minds can differ on how a material factual issue should be resolved. ......
  • Request a trial to view additional results

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