The Iowa Civil Rights Act doesn’t reach beyond the state’s borders, Iowa Supreme Court rules

By: Rox Laird on May 21st, 2018

An Iowan working for Deere & Co. in China cannot sue for employment discrimination because the Iowa Civil Rights Act does not reach beyond the borders of Iowa, the Iowa Supreme Court ruled May 18.

Matthew Jahnke was brought back to Iowa from his China assignment and demoted following an internal investigation that found his sexual relationships with two Chinese women under his span of control violated Deere’s code of conduct. Jahnke sued under the Iowa Civil Rights Act for disparate treatment arguing he was treated differently because of his age – 60 at the time of the demotion – and the fact that he is a Caucasian male while the two younger Chinese women were not similarly disciplined.

The Court, in a 5-0 decision written by Justice Bruce Zager joined by Chief Justice Mark Cady and Justices Brent Appel, David Wiggins and Thomas Waterman, rejected Jahnke’s arguments. The Court held that the Iowa Civil Rights Act does not apply extraterritorially; nor can Jahnke bring a claim under the Iowa statute because neither he nor Deere & Co. was located in Iowa for purposes of the alleged discriminatory act.

Justices Daryl Hecht and Edward Mansfield did not participate in the decision.

Jahnke, a Deere employee since 1998 last assigned to its Ankeny plant, was sent to China in 2011 as a project manager in Harbin, China, overseeing construction of a new plant and later as factory manager once production began.

In 2014 Deere officials based in China began an investigation into Jahnke’s relationships with the two Chinese women, one a financial controller assigned to assist him, and the other a contract employee hired as a language tutor. Following the investigation, Jahnke was removed from his position in China, demoted and reassigned to the company’s factory in Waterloo at a reduced salary grade.

The justices concluded that Jahnke does not have a disparate-action claim under the Iowa Civil Rights Act because, under its prior rulings, the Court presumes that a statute “lacks extraterritorial reach unless the Legislature clearly expresses otherwise.” Nothing in the Iowa Civil Rights Act expressly states or indicates that it applies outside of Iowa’s or the nation’s boundaries, the Court said.

When the Legislature intends that a statute operate extraterritorially, it has said so, as it did, for example, by extending the workers’ compensation law and the Tort Claims Act beyond the borders of Iowa, Zager wrote.

“It is telling that the Legislature has clearly indicated its intention for other Iowa statutes to apply extraterritorially by including specific language expressing this intent, yet declined to include comparable language in the ICRA,” Zager wrote. “The Iowa Legislature is aware of our presumption against extraterritoriality and has made this awareness clear in other Iowa statutes. Consequently, if the Iowa Legislature wanted the ICRA to apply extraterritorially, it would have expressly indicated this intent in the statutory text. Yet, the Iowa Legislature did not do so, and it is not for us to alter the ICRA by expanding it to apply extraterritorially.”

Moreover, the Court said applying the Iowa Civil Rights Act outside Iowa creates potential conflicts with the laws of other states and countries, and Iowa should respect the sovereignty of other states rather than impose its policy decision on the employment practices of those states. Because of such concerns for interstate harmony, Zager wrote, a majority of U.S. courts have declined to apply human-rights statutes beyond their own jurisdictions.

Jahnke argued that the Iowa Civil Rights Act nonetheless applies in his case because he is an Iowan who was working on a temporary assignment overseas, and the illegal discrimination he alleged was based on decisions made in Iowa by Iowans. The Court rejected that line of argument, as well, because all of the actions Jahnke cited occurred in either China or Illinois.

At the time of the alleged discrimination, Jahnke lived and worked in China for a Deere subsidiary that operated under the laws of that country. The investigation and recommendation that led to his disciplinary demotion and return to the U.S. was conducted by Deere employees in China and approved and carried out by Deere management based in Moline, Ill.

“Jahnke’s petition does not support his claim that Iowa, or more specifically Polk County, is the proper venue for his employment discrimination claim,” Zager wrote. “Iowa is not the principal place of business for Deere. The only connection with Polk County was that John Deere Des Moines Works was the last place that Jahnke worked prior to his expatriation to China. ”

This is not to say Jahnke had nowhere else to turn. He could have brought a federal employment-discrimination claim under Title VII and the Age Discrimination in Employment Act, Zager wrote, or he may have had a claim under the Illinois Human Rights Act, or the laws of China. But not the Iowa Civil Rights Act.

[Disclaimer: Deere & Co. was represented in this case by Nyemaster Goode attorneys Frank Harty and Debra Hulett.]


Legal malpractice claim tossed by the Iowa Supreme Court because the aggrieved client waited too long to sue

By: Rox Laird on May 15th, 2018

A client who accused her attorney of malpractice missed the deadline for filing a lawsuit against him, according to the Iowa Supreme Court.

Michelle Skadburg said she was acting on the advice of her attorney when she used her late mother’s $107,000 estate to pay the estate’s debts, which exceeded the assets. She sued the attorney, Gary Gately of Whitfield & Eddy, alleging he failed to advise her that proceeds from the estate’s life-insurance policy and a 401(K) account were exempt from any claims against the estate.

Gately denied Skadburg’s malpractice claim and the Cerro Gordo County District Court dismissed the suit on summary judgment because it fell outside the statute of limitations. The Iowa Supreme Court upheld that ruling in a 6-0 decision handed down May 11. (Justice Daryl Hecht did not participate in the case.)

The single issue, Justice David Wiggins wrote for the Court, is whether Skadburg filed the lawsuit within the statute of limitations. In this case, that is five years from when her cause of action accrued, or when she suffered an actual injury. Since that occurred in 2008, when she paid the creditors with exempt funds, allegedly on Gately’s advice, her suit filed in August 2015 missed the deadline by two years.

Skadburg asserted three exceptions to the statutory limit – the discovery rule, the continuous-representation rule and the doctrine of fraudulent concealment – but the Court held none of the three exceptions applied.

Under the discovery rule, the statute of limitations clock starts ticking when plaintiffs discovered or should have discovered their injury. In Skadburg’s case, that was March 2010, when she wrote an email to Gately that showed she was aware of potential negligence by Gately. Nor was her cause saved by the continuous-representation rule or the fraudulent-concealment doctrine, Wiggins wrote, also based on when she became aware of problems with Gately’s advice.


Iowa Supreme Court says convicted child abuser should get police reports that could help him win a new trial

By: Rox Laird on May 14th, 2018

A Black Hawk County man convicted of sexually abusing his granddaughter should have access to police reports that could undermine the credibility of his accuser, the Iowa Supreme Court ruled May 11.

David M. Powers was convicted of sex abuse based on allegations by his granddaughter, identified as K.P. in court records, who said the abuse occurred when she was age 13 and younger. Powers denied the accusations, and family members and a friend testified that she had told lies in the past.

In his petition for post-conviction relief, Powers sought to subpoena Waterloo police investigative reports about an incident that occurred after his trial in which K.P. reported that she had been sexually assaulted by gang members. Powers contended that police officers suspected K.P. had lied about that sexual assault, and he believed that would cast doubt on the truthfulness of her accusations against him.

After reviewing the police reports in camera, however, the District Court quashed the subpoena, saying K.P.’s accusations against the gang members had no relevance to the case against Powers.

The Iowa Supreme Court, in a 4-2 decision, disagreed and sent the case to the District Court and with instructions that Powers have access to the police reports. The majority opinion written by Justice Bruce Zager was joined by Chief Justice Mark Cady and Justices Brent Appel and David Wiggins. Justice Edward Mansfield filed a dissenting opinion joined by Justice Thomas Waterman. Justice Daryl Hecht did not participate in the case.

The Court noted that the issue was whether the police investigative reports should be made available to Powers, not whether they should be admissible in the post-conviction proceedings. That is for the trial judge to decide, but the Supreme Court said when evidence against a defendant relies almost exclusively on the complaining witness’ testimony, the witness’ credibility may be pivotal.

In Powers’ case, the State had no physical evidence or other witnesses and relied almost exclusively on the testimony of K.P.

“Though the jury did hear evidence from K.P.’s family and a friend that she had a reputation for lying,” Zager wrote, “evidence that K.P. had also made false allegations of sexual abuse against others would likely further undermine her credibility in Powers’s favor.”

In his dissent, Justice Mansfield said K.P.’s alleged false claim – which occurred after Powers’ trial – does not constitute newly discovered material evidence because it would at best be used to impeach her testimony. “Criminal trials have an endpoint, and events that occur after trial – as opposed to new evidence about pretrial events – aren’t a basis for reopening the proceedings,” he wrote.

The majority did concede that evidence of another lie may not have affected Powers’ jury had it been presented at trial, but Zager said Powers is entitled to the police reports now because “a significant argument could be made that evidence showing K.P. made false allegations of sexual abuse against others, at or around the time that the motion for new trial was pending, may have had an impact on the sentencing judge when he or she was considering and deciding the motion for new trial.”

An amicus curiae (friend of the court) brief was submitted to the Court in this case by the Innocence Network, the Innocence Project of Iowa and the Midwest Innocence Project in support of Powers. The brief argued that equal access to exculpatory evidence reduces the imbalance of power between the state and criminal defendants.


Iowa Supreme Court’s sex-by-fraud decision comes down to the meaning of ‘consent’

By: Rox Laird on May 7th, 2018

The Iowa Supreme Court’s May 4 ruling upholding the sex-abuse conviction of a man who faked his identity turns on the question of consent. The question is not whether the woman consented to having sex, however, but the question is with whom.

Michael Kelso-Christy created a phony Facebook account to arrange a sexual encounter with a woman identified in the case as S.G. by impersonating her former high school classmate. Kelso-Christy enticed S.G. into meeting him at her home and to being blindfolded when he arrived. She discovered Kelso-Christy’s deception after he quickly exited the house without revealing his identity and she contacted the real classmate she thought she was meeting.

The Court, in a 4-2 decision written by Justice Mark Cady joined by Justices Edward Mansfield, Thomas Waterman and Bruce Zager, rejected Kelso-Christy’s argument that his conviction should be overturned because the sex was consensual. Deceptions such as Kelso-Christy perpetrated on his victim do not establish consent, the Court held. (Justice Daryl Hecht did not participate in the case.)

Kelso-Christy was convicted of burglary with intent to commit sexual abuse, which is defined in Iowa law as a sex act “done by force or against the will of another.” The “against the will” standard protects individuals from nonconsensual acts, the Court said, and the question becomes whether consent is meaningful.

Kelso-Christy argued that it could not be proved that he intended to commit sexual abuse because S.G. consented to sex. But the majority disagreed, saying that because of Kelso-Christy’s deception she did not give meaningful consent. The Court cited an earlier ruling that said consent may be negated “if an act is done that is different from the act the defendant said he would perform.”

Kelso-Christy knew his victim intended to have a sexual encounter with another man, but not with him, Cady wrote. “Rather, Kelso-Christy knew S.G. wished to have sex with someone else and simply decided that fact gave him license to proceed, regardless of S.G.’s actual feelings or preferences. Because it has long been the law in Iowa that consent to sex with one man cannot imply consent to sex with another, Kelso-Christy could not have believed S.G. consented to a sexual encounter with him.”

Justice David Wiggins filed a dissenting opinion joined by Justice Brent Appel.

Wiggins disagreed with the majority’s conclusion that Kelso-Christy’s intent to commit sexual abuse was proved, but his primary reason for departing from the majority is that, in his view, the statute under which Kelso-Christy was convicted does not address sexual abuse by fraud or deception.

“As a caveat, I emphasize that I am not saying the defendant did not commit a wrongful act,” Wiggins wrote. “Rather, because the allegations of fact do not contain all the necessary elements to find Kelso-Christy guilty of sexual abuse, the State could have charged the defendant with another crime.”


U.S. Supreme Court Justice Neil Gorsuch and U.S. Attorney General Sessions on the program for Eighth Circuit Judicial Conference in Des Moines

By: Rox Laird on May 2nd, 2018

Iowa lawyers and judges attending the Eighth Circuit Judicial Conference in Des Moines Aug. 15-17 will have an opportunity to hear from three major newsmakers in the legal world.

  • U.S. Supreme Court Justice Neil Gorsuch, who was assigned by Chief Justice John Roberts as the circuit justice for the Eighth Circuit, will speak to the conference Aug. 17.
  • U.S. Attorney General Jeff Sessions will speak Aug. 17. 
  • Former U.S. Solicitor General Theodore Olson will appear on a panel discussion on legal issues surrounding sports gambling Aug. 16.

Other speakers will include former Iowan Stephen Rapp, visiting fellow at the United States Holocaust Memorial Museum, and former Assistant Iowa Attorney General Theresa O’Connell Weeg. They will appear on a panel on the prosecution of international war crimes.

U.S. Senators Charles Grassley of Iowa and U.S. Representative Robert Goodlatte of Virginia, chairmen of the Senate and House Judiciary Committees have been invited.

The Eighth Circuit Conference rotates among the seven states in the circuit. This year’s conference is the first to be in Des Moines since 1995. It will be held at the Community Choice Credit Union Convention Center and the new Hilton hotel, which recently opened adjacent to the convention center.

Go to the Eighth Circuit website for more details on the conference and registration.


Iowa’s Supreme Court justices unanimous in a juvenile-sentencing decision

By: Rox Laird on April 24th, 2018

Iowa’s Supreme Court justices are often divided in juvenile sentencing cases, but they found common ground in a decision handed down April 20: The State can prosecute a juvenile as young as age 13.

Noah Riley Crooks argued in an appeal to the Supreme Court that the State cannot legally or constitutionally prosecute a 13-year-old accused murderer in adult court. In its decision handed down April 20, however, the Court said Iowa’s youthful offender statute “unambiguously” allows prosecution of offenders as young as 13, and such prosecutions do not violate the Iowa Constitution.

All seven justices agreed with that conclusion in the decision by Justice Thomas Waterman joined by Chief Justice Mark Cady and Justices Edward Mansfield and Bruce Zager. Justice Brent Appel filed a separate concurring opinion, joined by Justices Daryl Hecht and David Wiggins, dissenting on a separate issue of the trial court’s procedure for sentencing Crooks.

Under the youthful-offender process, a juvenile is tried as an adult and, if convicted, remains under the jurisdiction of the juvenile system until reaching the age of 18. At that point the District Court conducts a sentencing hearing. The sentence may range from immediate release to a prison term.

Crooks was found guilty by a Mitchell County jury of second-degree murder in the shooting death of his mother. He was 13 at the time of the crime, and he was waived by a juvenile court judge into adult court to be tried as a youthful offender. After he turned 18, following his commitment to the State Training School, Crooks was sentenced to up to 50 years in prison with immediate eligibility for parole.

The Supreme Court rejected Crooks’ argument that the Iowa Legislature did not intend a 13-year-old to be prosecuted in adult court under the youthful-offender statute. In fact, Justice Waterman wrote, the Legislature used different age limits throughout the juvenile-justice statutes, it “knows how to set a lower age limit” and it “chose to include thirteen-year-olds within the youthful-offender waiver provision.”

Crooks also argued that prosecuting youthful offenders as young as 13 is unconstitutional in two ways: First, the process of waiving a juvenile into adult court as a youthful offender is by itself cruel and unusual punishment; and, sentencing a juvenile in adult court for a crime committed at age 13 is categorically unconstitutional.

The Court rejected both arguments.

Waterman wrote that Iowa’s waiver provision for youthful offenders does not constitute punishment within the meaning of the Iowa Constitution, let alone “cruel and unusual” punishment. And Iowa’s youthful-offender process exceeds the constitutional requirements imposed by the U.S. Supreme Court and the Iowa Supreme Court with regard to sentencing juveniles.

While concurring in part with the majority opinion, Justice Appel dissented in part to say the District Court at the sentencing stage should have made specific findings considering “the mitigating factors of youth when sentencing children in adult court.”


As Iowa Supreme Court heads into the home stretch, 45 appeals are still in the pipeline

By: Rox Laird on April 19th, 2018

The Iowa Supreme Court is expected to release decisions in two cases Friday, which will bring to 63 the number of cases disposed of in the first eight months of the 2017-18 term.

The Court heard its final round of oral arguments on April 10, and all cases have now been submitted. With the release of Friday’s decisions, 43 submitted cases will remain to be decided between now and the end of the term in 10 weeks.

At that point, the Court will have disposed of 106 cases, including nine attorney-discipline cases, which is about normal for the Court, which typically decides about 105 cases each year. (One case, Merlos v. Banegas Contracting, was voluntarily dismissed.)

Not surprisingly, some of the more challenging and controversial cases have been saved for last. Among those are four appeals on the constitutionality of juvenile sentencing, an issue that has divided the Court in recent years. One of the four – State v. Crooks, on the question of whether it is constitutional to prosecute a 13-year-old as a youthful offender – is one of the two cases expected to be handed down Friday.

Among the cases of note that remain in the pipeline:

Jahnke v. Deere & Co., on whether the Iowa Civil Rights Act applies extraterritorially to a U.S. citizen working on assignment overseas; Iowa v. Kelso-Christy, on whether a blindfolded sexual encounter arranged using a fake Facebook account was consensual or illegal sex abuse;  Honomichl v. Valley View Swine, on whether an Iowa statute that gives livestock operations limited immunity from nuisance liability violates the inalienable rights clause of the Iowa Constitution; Planned Parenthood v. Kimberly Reynolds, on the constitutionality of Iowa’s statutory abortion restrictions; and, Bandstra v. Covenant Reformed Church, on whether church elders failed to adequately supervise a male pastor accused of sexually exploiting female congregants, or whether the church is shielded by the religious-freedom clauses of the U.S. and Iowa constitutions.


The Iowa Supreme Court’s views have evolved on equal protection, according to Drake Law Review article co-authored by Justice Edward Mansfield

By: Rox Laird on April 13th, 2018

The Iowa Constitution states in Article I, Section 6 that “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

Iowa judges today read this clause as the equivalent of the Equal Protection Clause in the 14th Amendment to the federal Constitution. But that may not be what the authors of the Iowa Constitution had in mind when it was written, according to an article published in the Drake Law Review by Iowa Supreme Court Justice Edward Mansfield and Des Moines attorney Conner Wasson (Exploring the Original Meaning of Article I, Section 6 of the Iowa Constitution).

In fact, as Mansfield and Wasson point out, Article I, Section 6 contains two provisions, one saying laws of a general nature shall have a uniform operation, and the other saying the Legislature may not grant privileges or immunities to a citizen or class of citizens.

The two provisions were introduced at different times, and the authors suggest they may have meant different things: The “uniform operation” clause first appeared in the 1844 Constitution (which was not ratified) and the “privileges and immunities” clause was added in the 1857 Constitution that governs today.

“We conclude, based on text and legislative history, that the two clauses in Article I, Section 6 may have been intended to serve different roles,” the authors write. “The uniformity clause was aimed at geographical discrimination, the privileges and immunities clause at special legislative franchises or monopolies.”

As evidence that Iowa Supreme Court in the 19th century did not see Article I, Section 6 as an equal-rights guarantee, the authors cite two landmark Iowa decisions on civil rights: Clark v. Board of Directors (1868), which struck down segregated public schools, and Coger v. Northwest Union Packet Company (1873), which held as unreasonable a whites-only steamboat dining room. Both decisions cited different provisions of the Iowa Constitution.

The Court’s thinking, according to Mansfield and Wasson, began to evolve late in the 19th century when parties began citing Article I, Section 6, along with the federal Equal Protection Clause in appeals to the Iowa Supreme Court. And, in 1906, the Court held that the same principles applied to both clauses. That view continues today.

“Since 1980,” Mansfield and Wasson write, “the Iowa Supreme Court has generally used federal Equal Protection Clause jurisprudence as its starting point when considering claims under Article I, Section 6. Often, it has also used that jurisprudence as its endpoint — reaching the same result as the federal courts.”


Iowa Supreme Court preview: Final cases of the term set for oral argument April 10

By: Rox Laird on April 9th, 2018

The Iowa Supreme Court will hold its final round of oral arguments April 10 before the justices devote the remainder of the term cranking out opinions in previously submitted cases.

The justices will hear arguments in four cases, including one attorney-discipline case. Two cases will be submitted to the court without oral argument. Following are previews of three of the cases to be argued.

In the Matter of Property Seized From Jean Carlos Herrera and Fernando Rodriguez

Set for argument at 9 a.m. April 10

Jean Carlos Herrera and Fernando Rodriguez appeal the dismissal by the Pottawattamie County District Court of their claims regarding the State’s seizure of an automobile belonging to Rodriguez and contents of the automobile belonging to Herrera, including $44,900 in cash. The Supreme Court granted further review of a ruling by the Iowa Court of Appeals affirming the District Court in part and reversing in part.

The two claimants raise distinct issues in this consolidated appeal. Rodriguez argues he should be able to recover attorney fees since his vehicle was returned to him by the State. Herrera argues separately that he is in the position of waiving one constitutional right to assert another.

Herrera asserts that the search and seizure were illegal under the Fourth Amendment. But he cannot raise that issue without first establishing standing. To do that, he must testify to his ownership interest in the seized property, which he cannot do without running the risk that his testimony could be used against him in violation of his rights under the Fifth Amendment.

“This forces [Herrera] to make an unconstitutional choice between his Fourth and Fifth Amendment rights, and is untenable under both the Iowa and federal constitution,” his attorney, Dean Stowers, said in a brief submitted to the Court.

Herrera argues that the trial court should first address the legality of the search and seizure. If they weren’t valid, there is no need to force him to forfeit his Fifth Amendment rights by testifying about his ownership interest in the seized items.

Michelle R. Skadburg v. Gary Gately and Whitfield & Eddy

Set for argument at 9 a.m. April 10

Skadburg appeals a ruling from the Cerro Gordo County District Court dismissing her legal malpractice suit against Gary Gately and Whitfield & Eddy. The trial court ruled the suit was barred because it was filed after the five-year statute of limitations had expired. The Supreme Court granted the application for further review from the Iowa Court of Appeals, which reversed the trial court.

The three-judge Court of Appeals panel split 2-1 in ruling there is a “genuine issue of material fact as to when Skadburg had knowledge of her cause of action” against Gately. Absent that knowledge, the statute of limitations would not have expired before she filed suit.

City of Des Moines, et al. v. Iowa Department of Transportation

Set for argument at 1:30 p.m. April 10

Des Moines, along with Muscatine and Cedar Rapids, appeal a decision by the Polk County District Court that the Iowa Department of Transportation has the power to regulate the manner in which cities enforce traffic laws – in this instance by ordering the cities to remove certain automated speed-enforcement cameras set up on primary highways within their boundaries.

The cities urge the court to reverse the trial court and declare that they have the power under the home-rule amendment to the Iowa Constitution to enforce traffic laws using automated cameras.

The DOT argues its automated-camera regulations on primary highways are justified in the interest of safety and uniformity, and that home-rule authority “must yield to legitimate DOT safety regulations of traffic cameras on primary highways.”

This is one of four cases before the Court this term regarding automated traffic-enforcement cameras. A second case, Reuven Weizberg, et al., appellees v. City of Des Moines, appellant, and Gatso USA, Inc., appellee, will be submitted to the Court on April 10 without oral argument. That class-action suit is a due-process challenge to the city’s method of prosecuting speeding violations using automated traffic cameras.

Two cases were submitted to the Court in September – City of Cedar Rapids v. Leaf, and Behm, et al. v. City of Cedar Rapids and Gatso USA. Among the issues raised in these two appeals: Did the city unconstitutionally delegate core police functions to a private contractor to install and operate the speed cameras?

 


Evidence of a driver’s intoxication after leaving a bar should have gone to the jury, Iowa Supreme Court rules

By: Rox Laird on April 2nd, 2018

The fact that a person is intoxicated shortly after leaving a bar is sufficient evidence to submit to a jury in a lawsuit alleging liability under Iowa’s dramshop statute.

Thus said a divided Iowa Supreme Court on March 30 in Banwart v. 50th Street Sports. The decision, written by Justice David Wiggins and joined by Chief Justice Mark Cady and Justices Daryl Hecht and Brent Appel, reversed both the Polk County District Court, which dismissed the civil suit on summary judgment, and the Iowa Court of Appeals, which upheld the trial court.

Justice Edward Mansfield filed a dissenting opinion, joined by Justices Thomas Waterman and Bruce Zager. The dissent criticized the majority for adopting “an overbroad blanket inference of negligence from intoxication” that “routinely sends to the jury all cases where the patron was intoxicated on leaving the establishment, regardless of their facts.”

Rhonda Banwart sued 50th Street Sports following an accident in which a patron of the West Des Moines bar smashed into the rear of her vehicle shortly after leaving the bar. The bar patron later pleaded guilty to operating while intoxicated after a breath test showed her blood-alcohol level exceeded the legal limit.

The question before the Court: Is the bar liable under the State dramshop statute, which provides a right of action against a liquor license-holder that serves intoxicating liquor to an intoxicated person and that “knew or should have known the person was intoxicated” or that served the person to a point where it “knew or should have known the person would become intoxicated.”

The plaintiff has the burden under the statute of proving the defendant’s knowledge of the patron’s intoxication, and the Court cited its 2004 decision in Smith v. Shagnasty’s that said the plaintiff in that case met the burden based on events that took place at the bar. But the Court left open the question of whether evidence gathered later of a person’s intoxicated condition could by itself give rise to a question of fact for a jury to consider.

In Banwart, the Court said it could.

The patron testified she exhibited no signs of intoxication at the bar and that she consumed no more alcohol after leaving the bar shortly before the crash. But the Court said she was clearly intoxicated when she left the bar based on the police officer’s observations at the accident scene and based on a Datamaster breath test taken nearly three hours after she said she had consumed the last of three beers at the bar.

That raises enough questions for the case to be put to a jury, the Court ruled.

Summary judgment, Wiggins wrote, “is improper when sufficient evidence points to [a person’s] intoxicated condition shortly after his or her visit to the dramshop, even if the record lacks evidence regarding the [person’s] demeanor at the time of the dramshop’s service of alcohol.”

 


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