Cox v. Rolling Acres Golf Course Corp., 94-573

• Citation: 532 N.W.2d 761
• Decision Date: 24 May 1995
• Docket Number: No. 94-573,94-573
• Parties: Robert R. COX, Appellant, v. ROLLING ACRES GOLF COURSE CORP. d/b/a Rolling Acres Golf Course, Jerry A. Merritt d/b/a The Point Lounge, and Tom Haddy d/b/a Haddy's, Appellees.
• Court: Iowa Supreme Court

Page 761

532 N.W.2d 761

Robert R. COX, Appellant, v. ROLLING ACRES GOLF COURSE CORP. d/b/a Rolling Acres Golf Course, Jerry A. Merritt d/b/a The Point Lounge, and Tom Haddy d/b/a Haddy's, Appellees.

No. 94-573.

Supreme Court of Iowa.

May 24, 1995.

Todd P. Forsythe, Cedar Rapids, for appellant.

Gerry M. Rinden and Andrew M. Johnson of Wintroub, Rinden, Sens & McCreary, Des Moines, for appellee Tom Haddy d/b/a Haddy's.

Thomas P. Skorepa of Klockau, McCarthy, Ellison & Marquis, P.C., Rock Island, IL, for appellee Rolling Acres Golf Course Corp. d/b/a Rolling Acres Golf Course.

Jack L. Brooks of Anderson & Nelson, Davenport, for appellee Jack A. Merrit d/b/a The Point Lounge.

Considered by HARRIS, P.J., and LARSON, CARTER, LAVORATO, and SNELL, JJ.

SNELL, Justice.

This appeal is from the district court's granting of defendants' motions for summary judgment. Plaintiff Robert R. Cox filed a dram shop action against three liquor licensees. We affirm.

I. Factual and Procedural Background

On June 13, 1992, Charles M. "Mitch" Atwood picked up his friend, Robert R. Cox to go golfing at the Rolling Acres Golf Course in Center Point, Iowa. The two played three rounds of golf between approximately 11:15 a.m. and 5:15 p.m. and took a break for lunch after finishing their first round. Atwood and Cox split a six-pack of beer during each round of golf and also consumed at least one additional beer at the Rolling Acres clubhouse during lunch. They alternated buying beer for each other throughout the day.

Atwood and Cox then drove to the Point Lounge in Center Point where they each had two additional beers. It was their practice to stay at a bar until each had bought one round of drinks. They then drove to another bar, Haddy's, where they each consumed another beer. After paying for the two beers at Haddy's, Atwood and Cox ran short of money. The bartender would not cash a check for Atwood so the two decided to leave to get more money. They remained at Haddy's for only fifteen minutes and left the bar at approximately 7:15 p.m.

Shortly after 11:00 p.m., Atwood apparently lost control of his truck near County Road E28, one mile northwest of Anamosa. The truck went off the road into a steep ditch and rolled at least once, finally coming to rest in a pasture on its passenger side. Atwood sustained only minor injuries and was able to get out of the truck and walk away. Cox sustained serious injuries including a broken neck, cuts, bruises, and abrasions.

In November of 1992, Cox filed a dram shop action in the district court against the Rolling Acres Golf Course Corp., Jerry A. Merritt, owner of the Point Lounge, and Tom Haddy, owner of Haddy's, seeking damages for violations of Iowa Code section 123.92 (1991). Cox filed a motion for summary judgment solely on the issue of liability. The defendants also filed motions for summary judgment in which they asserted that no issue of material fact existed and the defendants were entitled to judgment as a matter of law on the theories that Cox was guilty of complicity and assumption of the risk.

The district court overruled Cox's motion but granted the defendants' on the ground that the uncontroverted facts established as a matter of law the existence of complicity on the part of Cox. Cox then filed a "Motion for Rehearing, Substitution of Ruling, and Motion Under [Iowa Rule of Civil Procedure] 179(b) for Expanded Findings of Fact." In this motion, Cox asserted the court erred in granting the defendants' motions for summary judgment because the existence of complicity is a question for the jury and uncontroverted facts did not establish Cox was guilty of complicity as a matter of law. The trial court denied Cox's motion and held that the uncontroverted facts established that Cox had been guilty of complicity as a matter of law.

II. Standard and Scope of Review

In our review of a trial court grant of a motion for summary judgment, we consider the evidence in the entire record in the light most favorable to the non-movant and determine whether any issue as to any material fact exists. Ciha v. Irons, 509 N.W.2d 492, 493 (Iowa 1993); West Bend Mut. Ins. Co. v. Iowa Iron Works, Inc., 503 N.W.2d 596, 598 (Iowa 1993). Summary judgment is appropriate if no issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Ciha, 509 N.W.2d at 493; West Bend Mut. Ins., 503 N.W.2d at 598. We review the district court's decision for errors of law. Iowa R.App.P. 4; Ciha, 509 N.W.2d at 493; Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991).

III. Issues on Appeal

Cox argues: (1) the district court erred in granting the defendants' motions for summary judgment because the existence of complicity is properly a fact question for the jury to decide; and (2) even if instances exist in which a judge may determine the existence of complicity as a matter of law, the judge erred in finding complicity in this case. The defendants argue, and the district court held, that the undisputed facts overwhelmingly establish complicity on the part of Cox, and where such apparent complicity exists, the court may determine the existence of complicity without submitting the question to a jury.

Dram shop acts, such as Iowa Code section 123.92, provide innocent parties who are injured as a result of the intoxication of other persons, a cause of action against the parties from whom the intoxicants were procured. Slager v. HWA Corp., 435 N.W.2d 349, 351 (Iowa 1989). Complicity on the part of the injured party is an absolute bar to recovery under section 123.92. Slager, 435 N.W.2d at 351; Martin v. Heddinger, 373 N.W.2d 486, 488 (Iowa 1985); Berge v. Harris, 170 N.W.2d 621, 625 (Iowa 1969); cf. Slocum v. D's & Jayes Valley Restaurant & Cafe, Inc., 582 N.Y.S.2d 544, 545, 182 A.D.2d 981, 982 (App.Div.1992); Vandenburg v. Brosnan, 514 N.Y.S.2d 784, 784-85, 129 A.D.2d 793, 793-94 (App.Div.1987), aff'd, 70 N.Y.2d 940, 524 N.Y.S.2d 672, 519 N.E.2d 618 (1988). The rationale supporting this defense is that the goal of the dram shop statute is to protect innocent parties, not those who have participated in the intoxicated person's intoxication. Slager, 435 N.W.2d at 351; Berge, 170 N.W.2d at 625. We have said:

A party who participates in the drinking activities during which the injuring party becomes intoxicated cannot recover under the dramshop act for injuries sustained as a result of such intoxication.

Two reasons for the rule expressed in the cases are that one cannot profit from his own wrong and a person who participates in the drinking activities is not an innocent person entitled to protection under the dramshop act.

Martin, 373 N.W.2d at 489 (quoting Berge, 170 N.W.2d at 625).

Complicity exists where a plaintiff seeking to assert the provisions of section 123.92 has "encouraged or voluntarily participated to a material and substantial extent in the drinking of beer or intoxicating liquor" by the party who injured the plaintiff. Martin, 373 N.W.2d at 490. In order for participation to constitute complicity, it must be more than passive. Id. It is not enough to establish complicity that an individual is a mere drinking companion of the intoxicated person. Mitchell v. Shoals, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113, 116, 227 N.E.2d 21, 23 (1967); Slocum, 582 N.Y.S.2d at 546, 182 A.D.2d at 919; Russell v. Olkowski, 535 N.Y.S.2d 187, 188, 144 A.D.2d 837, 838 (App.Div.1988); French v. Cliff's Place Ltd., 508 N.Y.S.2d 577, 578, 125 A.D.2d 292 (App.Div.1986); Harris v. Hurlburt, 83 Misc.2d 626, 373 N.Y.S.2d 480, 484 (Sup.Ct.1975).

Courts may determine the existence of an affirmative defense as a matter of law only in exceptional cases. Reeves v. Beekman, 256 Iowa 263, 270, 127 N.W.2d 95, 99 (1964). We note that even the numerous authorities Cox cites from other jurisdictions do not hold that the existence of complicity is always an issue of fact to be decided by the jury. See, e.g., Nelson v. Araiza, 69 Ill.2d 534, 14 Ill.Dec. 441, 372 N.E.2d 637, 641 (1978) ("In many cases this will be an issue of fact under the given circumstances. In other cases whether there is sufficient evidence to support the doctrine ... will be for judicial determination"); see also Arciero v. Wicks, 150 Mich.App. 522, 389 N.W.2d 116, 119 (Mich.Ct.App.1986). In addition, the authorities Cox cites for support of his assertion that the question of complicity should have been submitted to the jury are easily distinguishable from the case at hand.

In Arciero, the Michigan Court of Appeals held that in order for participation consisting solely of the act of buying drinks for the party who ultimately caused the accident to constitute active participation as a matter of law, the buying of at least one drink must have occurred while the party who ultimately caused the injury was visibly intoxicated. Arciero, 389 N.W.2d at 119-20. The defendants are correct in noting that Arciero involved interpretation of...