Thorp v. Casey's General Stores, Inc.

• Decision Date: 20 September 1989
• Docket Number: No. 88-943,88-943
• Citation: 446 N.W.2d 457
• Parties: Rose M. THORP, Individually and as Administrator of the Estates of Robert M. Thorp and Edwin G. Thorp, Deceased, Appellant, v. CASEY'S GENERAL STORES, INC., d/b/a Casey's General Store; Edward C. Middleton and Ruth M. Middleton, d/b/a Midway Cafe and Bar; and State of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 457

446 N.W.2d 457

Rose M. THORP, Individually and as Administrator of the Estates of Robert M. Thorp and Edwin G. Thorp, Deceased, Appellant, v. CASEY'S GENERAL STORES, INC., d/b/a Casey's General Store; Edward C. Middleton and Ruth M. Middleton, d/b/a Midway Cafe and Bar; and State of Iowa, Appellees.

No. 88-943.

Supreme Court of Iowa.

Sept. 20, 1989.

As Amended Oct. 17, 1989.

David J. Grace of Davis, Grace, Horvath, Gonnerman, and Rouwenhorst, P.C., Des Moines, and W.N. Bump of Bump and Bump, P.C., West Des Moines, for appellant.

Michael V. Huppert of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker, and Ordway, Des Moines, for appellee Casey's General Stores, Inc.

Thomas S. Skorepa and Frank R. Fuhr of Klockau, McCarthy, Ellison, and Marquis, P.C., Rock Island, Ill., for appellees Edward C. Middleton and Ruth M. Middleton.

Thomas J. Miller, Atty. Gen., and Craig Kelinson, Sp. Asst. Atty. Gen., for appellee State of Iowa.

Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, CARTER, and SNELL, JJ.

SCHULTZ, Justice.

In this dramshop action we address issues of first impression concerning the constitutionality of the legislatively mandated, retrospective application of amendments to our Dramshop Act. We also address issues concerning proximate cause and the exemption of state employees from liability. We hold that federal and state due process protections void the retrospective application of the amendment which acts to deprive plaintiff of her vested rights in a cause of action against the dramshop. We further hold that the State is responsible for the acts of its employees who are not immune from liability for violating alcoholic beverage statutes. Finally, we hold that as the plaintiff was not required to prove that the sale and service to an intoxicated party was a proximate cause of her injury, she need not prove the consumption of intoxicants by that party. We also address other issues.

Robert Thorp, age 13, was fatally injured by a drunken driver, Anthony Vaughn, on April 1, 1985. Robert's mother, individually and as administrator of his estate and of his father's estate, brought this action against five parties who provided intoxicants to Vaughn. Two defendants settled with the plaintiff. Plaintiff's actions against Casey's General Store, Inc., who sold beer to Vaughn, and the State of Iowa, at whose liquor store Vaughn bought a bottle of whiskey, were dismissed under separate rulings by Judge Richard D. Morr. The remaining defendants', Edward C. Middleton and Ruth M. Middleton, owners of Midway Cafe & Bar, motion for summary judgment was granted by Judge Peter A. Keller on the basis that there was no evidence that Vaughn had consumed any alcohol at the cafe-bar.

Plaintiff appeals, claiming that the trial court erred (1) in holding that the 1986 amendment to the Dramshop Act precluded her action against Casey's, (2) in holding that a parent may not recover for loss of consortium under the Dramshop Act, (3) in holding that the State is not liable for selling liquor to an intoxicated person, (4) in failing to recognize a common law tort holding sellers of intoxicants to intoxicated persons liable, and (5) in granting summary judgment in favor of the Middletons on the basis that consumption of intoxicants must occur to render the seller liable. We address these contentions in order.

I. Effect of 1986 Amendment on Cause of Action Against Casey's. In plaintiff's petition she alleged that Casey's "furnished beer, liquor, or both to Anthony Steven Vaughn to the point where Vaughn became intoxicated or while he was in an intoxicated state." In its motion to dismiss, Casey's noted that plaintiff's petition only spoke of furnishing beer rather than of serving it. Relying upon an amendment to Iowa Code section 123.92 (1985), the district court dismissed this action.

At the time of the accident, section 123.92 provided a right of action against any licensee "who shall sell or give any beer ... to any such person while the person is intoxicated, or serve any such person to a point where such person is intoxicated...." (emphasis added). In 1986, however, the legislature amended this section and made major changes. 1986 Iowa Acts ch. 1211, § 12 (codified at Iowa Code § 123.92 (1987)). It struck the language "sell or give" and replaced it with "sold and served." It also added a condition which required that the licensee "knew or should have known the person was intoxicated." Id.

One effect of the amendment is to require the injured person to prove not only that the beer was sold but that it was served as well. The plaintiff concedes that she cannot allege that Casey's, a convenience store, served beer to Vaughn. She claims, instead, that since the 1986 amendment does not apply to her cause of action which accrued in 1985, she need not allege that Casey's served the beer.

The district court concluded that the 1986 amendment applied to the case and dismissed plaintiff's action. The literal language of chapter 1211 supports the district court's decision. Section 47 of chapter 1211 indicates that the changes were to take effect two weeks from the date of their second publication, June 7, 1986. It further provided that the chapter applies to all cases filed on or after July 1, 1986. Plaintiff's action, filed in 1987, did not meet the legislatively imposed deadline.

Plaintiff attacks the applicability of the 1986 amendment by urging (1) that the amendment should be construed to apply only to causes of action which accrued after the amendment's effective date, and (2) that the legislature may not constitutionally deprive her of her accrued cause of action. We examine these contentions in turn.

A. Statutory Construction. Plaintiff urges that there is a conflict between applying section 47 of chapter 1211 to all cases filed on or after July 1, 1986, and Iowa Code section 4.13(2) (1985) which provides that the amendment of a statute does not affect any right or liability previously accrued. We find no merit in this contention. Section 4.13(2) is a general statute, while section 47 is a specific provision. If the conflict between the provisions is irreconcilable, the special provision prevails as an exception to the general one. Iowa Code § 4.7 (1985).

B. Due Process. Plaintiff maintains that the trial court ruling violated the federal and state due process clauses. The fourteenth amendment to the U.S. Constitution prohibits any state from depriving any person of property "without due process of law." Similarly, article 1, section 9 of the Iowa Constitution provides that "no person shall be deprived of ... property without due process of law." Plaintiff maintains that prior to the amendment, she had a vested right in the dramshop action without the necessity of proving that Casey's served beer to Vaughn. She maintains that the retroactive requirement of proof of serving destroyed her cause of action and was, therefore, an illegal taking of property.

We first examine whether her right to file a law suit prior to the amendment was a vested right. Casey's cites Schwarzkopf v. Sac County Board of Supervisors, 341 N.W.2d 1, 8 (Iowa 1983), for the proposition that plaintiff has no vested right in a particular result of litigation. We indicated in Schwarzkopf that a vested right requires something more that a mere expectation based on the anticipated continuance of present law, and that the right or interest must be fixed or established before it is considered vested. Id.

Initially, we believe that plaintiff's dramshop action was an accrued and vested right prior to the 1986 amendment. It was more than an expectation that the law would not change. In Schwarzkopf our statement that a party has no vested right until final judgment was based upon the fact that the suit was in equity and triable de novo before the Supreme Court. 341 N.W.2d at 8. This is distinct from the case at bar where a cause of action at law accrued when the plaintiff was injured.

In defining an accrued claim in the context of Iowa Code sections 4.1(1) and 4.13, we held that a claim for reimbursement for old age assistance against a decedent's estate accrued on the recipient's death, when the statute of limitations began to run. In re Estate of Hoover, 251 N.W.2d 529, 531 (Iowa 1977). We stated:

"Accrue" with reference to a cause of action, was defined by the Oregon Supreme Court in Berry v. Branner, 245 Ore. 307, 312, 421 P.2d 996, 998 (1966) to mean "when an action may be maintained thereon." In Blacketer v. State, 485 P.2d 1069, 1070 (Okla.Ct.Cr.App.1971) an "accrued" right was defined as "a matured cause of action or legal authority to demand redress."

Id. In determining when a statute of limitations begins to run, we held that the cause of action accrues when an aggrieved party has a right to institute and maintain a suit. Sandbulte v. Farm Bureau Mut. Ins. Co., 343 N.W.2d 457, 463 (Iowa 1984); Connelly v. Paul Ruddy's Equip. Repair & Serv. Co., 388 Mich. 146, 151, 200 N.W.2d 70, 72 (1972) (tort actions accrue when all elements of the cause of action have occurred).

Other jurisdictions have indicated that once a cause of action accrues, the injured person's interest in the cause of action vests.

It is well-settled that the legislature may not extinguish a right of action which has already accrued to a claimant. "There is a vested right in an accrued cause of action .... A law can be repealed by the law giver; but the rights which have been acquired under it, while it was in force, do not thereby cease ...."

Gibson v. Commonwealth, 490 Pa. 156, 161, 415 A.2d 80, 83 (1980) (quoting Lewis v. Pennsylvania R.R., 220 Pa. 317, 324, 69 A. 821, 823 (1908)); see also Stucki v. Loveland, 94 Idaho 621, 623 n. 10, 495 P.2d 571, 573 n. 10 (1972) (accrued statutory right is a vested right); In re Dance's Estate, 16 Ill.App.2d 122, 130, 147 N.E.2d 385, 390 (1958) (cause of action for wrongful death becomes vested upon death of decedents)...