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Berte v. Bode2/11/2005
Defendant appeals from district court decision denying its motion for summary judgment. AFFIRMED AND CASE REMANDED.
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 ยง 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 girlfriend
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