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Garofalo v. Lambda Chi Alpha Fraternity9/7/2000
his own interests to those of the other." Id. cmt. d. Thus Reier, and the chapter, were entitled to judgment as a matter of law on this claim.
AFFIRMED AS TO DEFENDANTS LAMBDA CHI ALPHA FRATERNITY AND TIMOTHY REIER, AFFIRMED BY OPERATION OF LAW AS TO LAMBDA CHI ALPHA UNIVERSITY OF IOWA CHAPTER AND REMANDED.
McGiverin, C.J. and Cady, J. concur in this opinion. Lavorato and Larson, JJ. concur in division IV.B of the majority opinion and dissent as to divisions IV.A and IV.C. Ternus, J. concurs in all but division IV.A of the majority opinion and joins divisions I and II of the dissent. Carter and Snell, JJ. take no part. #60/98-1721, Garofalo v. Lambda Chi Alpha Fraternity
LAVORATO, Justice (concurring in part and dissenting in part).
I concur in division IV.B of the majority opinion. I dissent as to divisions IV.A and IV.C. For reasons that follow, I conclude there are genuine issues of material fact sufficient to overcome the defendants' motions for summary judgment as to the Iowa chapter and Timothy Reier. Of course, implicit in my conclusion is that both defendants owed a duty to the decedent. I will address the law and facts that I find establish a duty running from each defendant to the decedent.
I. Vicarious Liability of the Iowa Chapter.
Contrary to the majority's position, I think a genuine issue of material fact exists on whether the Iowa chapter violated Iowa Code section 123.47A(1) (1995)—Iowa's underage drinking statute. That statute provides in part:
A person shall not sell, give, or otherwise supply alcoholic liquor, wine, or beer to any person knowing or having reasonable cause to believe that the person is age eighteen, nineteen, or twenty.
As the majority correctly notes, a violation of section 123.47A(1) will support a common-law cause of action by the underage person against the person furnishing the alcohol. Sage v. Johnson, 437 N.W.2d 582, 584-85 (Iowa 1989).
We have said that
egligence is the breach of legal duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. It has been defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is immaterial whether the standard is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by statute designed for the protection of others. Lewis v. State, 256 N.W.2d 181, 188 (Iowa 1977) (emphasis added) (citations omitted).
Lewis held that section 123.43—predecessor to section 123.47A(1)—"sets a minimum standard of care for conduct generally required of the reasonably prudent man under like circumstances for purposes of a common law action of negligence based on the sale or the furnishing of intoxicating liquor." Id. at 189. In short, section 123.47A(1) imposes a duty not to furnish alcohol to underage persons and a breach of that duty is negligence.
The key issue here is whether a genuine issue of material fact exists on whether the Iowa chapter sold, gave, or otherwise supplied alcohol to the decedent, who was underage at the time of this tragic incident. The terms "sell," "give," and "supply" in section 123.47A(1) require a defendant's knowing and affirmative delivery of alcohol to an underage person. Snyder v. Fish, 539 N.W.2d 197, 199 (Iowa App. 1995). "Otherwise supply" in this statute "means more than merely permitting or allowing beer to be consumed on a defendant's property." Fullmer v. Tague, 500 N.W.2d 432, 434 (Iowa 1993) (citing DeMore v. Dieters
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