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HOBBIEBRUNKEN v. G & S ENTERPRISES5/15/1991
This dramshop action arises from a boating accident on Clear Lake in August 1986 in which Douglas Hobbiebrunken was killed. The jury found for the defendant. On plaintiff's appeal, we affirm.
I. Background.
The facts in this case are largely uncontested. A little after 10:00 p.m. on Friday, August 16, 1986, Douglas Hobbiebrunken, who had been drinking earlier in the evening, left his home on Clear Lake by boat and went to the Shady Beach Lounge (Shady Beach), also on Clear Lake. While at the Shady Beach, he continued to consume alcohol. Later he offered four female college students a ride in his boat to the Waterfront Lounge (Waterfront). The offer was accepted and at approximately midnight he drove the group by boat to the Waterfront.
While at the Waterfront, Hobbiebrunken ordered a round of drinks for the group. He soon left the table, however, and moved about the room talking to acquaintances. The evidence was unclear as to how much more he had to drink at the Waterfront after the first round, if any. At approximately 1:15 a.m. Hobbiebrunken and the four students got back in the boat to return to the Shady Beach. Soon after leaving the Waterfront, Hobbiebrunken drove the boat into an unlighted dock and was killed. All four women survived. An autopsy revealed that Hobbiebrunken had a blood alcohol level of .382.
Hobbiebrunken's wife, Phyllis Hobbiebrunken, filed suit on behalf of herself and her three minor children against the owner of the Shady Beach and G & S Enterprises, Inc., the owner and operator of the Waterfront. This action was brought under Iowa's dramshop liability statute. Iowa Code § 123.92 (1985), as amended by 1986 Iowa Acts ch. 1211, § 12. The owner of the Shady Beach settled with the plaintiff prior to trial and was dismissed from the action. After the jury returned a verdict in favor of the defendant, plaintiff filed a motion for new trial. This motion was denied by the district court. The plaintiff appeals from the court's ruling. Plaintiff claims a new trial was required because of the court's refusal to give a requested instruction, the admission of certain evidence, jury misconduct, and the defendant's failure to disclose a possible witness.
II. Jury Instruction.
Prior to amendment in 1986, Iowa Code section 123.92 provided: [470 NW2d Page 21]
very . . . person who is injured in person or property or means of support . . . resulting from the intoxication of any person, has a right of action for all damages actually sustained, severally or jointly, against any licensee or permittee, who sells or gives any beer, wine, or intoxicating liquor to a person while the person is intoxicated. . . .
This section imposed strict liability upon dramshop defendants. Connolly v. Conlan, 371 N.W.2d 832, 833 (Iowa 1985). Knowledge of the purchaser's intoxication was not required. Rigby v. Eastman, 217 N.W.2d 604, 608 (Iowa 1974). The 1986 amendment abolished strict liability. Thorp v. Casey's Gen. Stores, Inc., 446 N.W.2d 457, 467 (Iowa 1989). Iowa Code section 123.92, as amended, provides:
ny person who is injured in person or property or means of support . . . resulting from the intoxication of a person, has a right of action for all damages actually sustained, severally or jointly, against any licensee or permittee, who sold and served any beer, wine, or intoxicating liquor to the intoxicated person when the licensee or permittee knew or should have known the person was intoxicated.
The trial court submitted a marshaling instruction that required the plaintiff to prove that the defendant sold and served beer or liquor to Hobbiebrunken when it knew or should have k
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