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WEMETT v. SCHUELLER12/22/1995
In this appeal from an order granting defendants-appellees Tina Schueller, Jody Hord, and Anna Pacut's motions for summary judgment, plaintiffs-appellants Richard R. Wemett, Teresa M. Wemett, Caitlin Rae Wemett, and Hanna Marie Wemett contend the trial court erred in finding no issues of material fact existed as to each defendant.
This case rises from a motor vehicle accident. Plaintiff Richard R. Wemett was driving a motorcycle when it was hit by a car driven by Jill Menzel. The collision occurred when Menzel pulled out from a stop sign. The three defendants were passengers in Menzel's car. Richard Wemett suffered injuries in the accident. Menzel is not a party to this suit, but was sued in another action. The other plaintiffs are Richard's wife and children.
Menzel's blood alcohol level was determined to be .092. Plaintiffs sought recovery from defendants on the theories they had furnished alcohol to Menzel, they were aiding and abetting her criminal conduct, and they were engaged in joint tortious conduct. The trial court dismissed all claims on the summary judgment and this appeal followed. We affirm.
The facts are substantially undisputed. Menzel, then eighteen years of age, had a party at her house the day of the accident. The accident happened about eight-thirty in the evening. Menzel and the three defendants, Tina Schueller, Jody Hord, and Anna Pacut, left the house in a motor vehicle. Hord, then eighteen, sat in the front seat; Pacut, then seventeen, sat in the back seat; and Schueller, then eighteen, sat in the back seat. Menzel had been drinking vodka. A short way into the trip, Menzel pulled out from a stop sign and collided with Wemett on his motorcycle. A person in the car behind Menzel's car stated there was some activity in the car prior to Menzel's pulling out.
There is no evidence how Menzel got the vodka. Menzel testified she does not think the vodka came from her house, but she does not know where it came from.
Defendant Pacut filed a counterclaim contending there was a violation of Iowa Rule of Civil Procedure 80. Defendants filed motions for summary judgment contending they had not supplied alcohol to Menzel or contributed to her intoxication.
The trial court sustained defendants' motions for summary judgment and concluded plaintiffs recognized they had no evidence any defendant sold, gave, or supplied vodka to Menzel. It is from this ruling the appeal is taken.
In summary judgment, by proper motion, a party can compel his or her adversary to come forth with specific facts which constitute competent evidence showing a prima facie claim or defense.
The principles a court is guided by in ruling on a motion for summary judgment are well established. See Gruener v. City of Cedar Falls, 189 N.W.2d 577, 580 (Iowa 1971).
The language of our rule on summary judgments is very strong. Rule 237(e), Rules of Civil Procedure. Affidavits cannot merely be based on what someone has reported to affiant: "supporting and opposing affidavits shall be made on personal knowledge". Conclusions and beliefs are insufficient: "shall set forth such facts as would be admissible in evidence". The person making the statements must know whereof he or she speaks: "shall show affirmatively that the affiant is competent [545 NW2d Page 3]
to testify to the matters stated therein". When the motion itself is substantiated, the opposing party cannot simply rely upon his pleadings, for the pleadings are the very instruments that the procedure is designed to pierce: "an adverse party may not rest upon the mere allegations or denials of his pleading". Neither can the opposing party assert only gene
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