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HOBBIEBRUNKEN v. G & S ENTERPRISES5/15/1991
nown he was intoxicated. The instruction was basically the uniform "essentials of recovery" instruction. Iowa Civil Jury Instructions 1300.1 (1989). This instruction was requested by the plaintiff. In addition, the plaintiff requested an instruction be given to further explain the terms "knew or should have known" and to instruct the jury of the licensee's affirmative duty to determine the condition of a patron. The requested instruction was as follows:
You are instructed that the term "knew or should have known" as used in Instruction No. ___, means that the liquor licensee must have actual or constructive knowledge of the intoxicated condition of the person served or that he would probably become so by being served. You are further told, ignorance to his condition is no justification for lack of such knowledge where no effort is made to ascertain the person's condition since the opportunity to do so is the equivalent of knowledge itself. You are further instructed that such licensee, and its employees, must be trained and qualified to recognize intoxicated persons and the signs thereof and must pay attention to the condition of patrons by using their senses and experience to discover an intoxicated condition which is apparent or should be noticed.
You are told that one under a duty of care to ascertain such actual or probable intoxicated condition cannot escape liability by claim of voluntary ignorance.
Instead of the instruction requested by the plaintiff, the court submitted to the jury the following:
You are instructed that the terms "knew or should have known" . . . means that the defendant must have actual knowledge or that a reasonably observant person under the same or similar circumstances would have had knowledge.
It is reversible error for a court to refuse to give a requested instruction that defines a critical term necessary for resolution of the case. Dotts v. Bennett, 382 N.W.2d 85, 90 (Iowa 1986). Iowa law requires a court to give a requested instruction when it correctly states a rule of law having application to the facts of the case and the concept is not otherwise embodied in the other instructions. Stover v. Lakeland Square Owners Ass'n, 434 N.W.2d 866, 868 (Iowa 1989).
Plaintiff asserts that the phrase "knew or should have known" has "acquired a peculiar and appropriate meaning in law," Iowa Code § 4.1(2), and that the court should have instructed the jury accordingly. Plaintiff urges that the phrase's meaning is established by the comment to section 12 of the Restatement (Second) of Torts (1965). Plaintiff also cites sections 343 and 344 of the Restatement, dealing with the duty owed by a possessor of land to an invitee, as supporting her [470 NW2d Page 22]
interpretation of the phrase "knew or should have known."
We are not convinced that the phrase has acquired a peculiar and appropriate meaning in law such that we are precluded from determining for ourselves its meaning in section 123.92. We consider ourselves free to decide the meaning of the phrase as it is used in section 123.92.
We find unpersuasive plaintiff's claim that the phrase creates a duty similar to that owed by a possessor of land to an invitee. If the legislature had intended to impose such an affirmative duty upon dramshop licensees and permittees it would have said so unambigously. When the legislature amended the statute, it imposed upon plaintiffs in dramshop actions the duty to prove the defendant's knowledge of the patron's intoxication. By using the phrase "knew or should have known" the legislature has made it possible for such plaintiffs to use either a subjective or an objective standard in establ
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