Fullmer v. Tague

500 N.W.2d 432, 1993 Iowa Sup. LEXIS 125, 1993 WL 168483
CourtSupreme Court of Iowa
DecidedMay 19, 1993
Docket91-1503
StatusPublished
Cited by11 cases

This text of 500 N.W.2d 432 (Fullmer v. Tague) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fullmer v. Tague, 500 N.W.2d 432, 1993 Iowa Sup. LEXIS 125, 1993 WL 168483 (iowa 1993).

Opinion

NEUMAN, Justice.

This appeal concerns the aftermath of a high school graduation party at which keg beer was provided for the underage celebrants. After leaving the party, eighteen-year-old Joshua Fullmer was killed when the car in which he was a passenger spun out of control and slid down an embankment adjoining Highway 67 south of Le-Claire. The car’s driver, Jerry McLaughlin, had been drinking at the party and registered a .149 blood alcohol concentration after the accident.

Linda Fullmer, Joshua’s stepmother and administrator of his estate, sued the underage host of the party, James Tague III (hereinafter “Jim Tague”), and Tague’s parents, Paige Tague and James Tague, Jr. on a theory of common-law liability for supplying beer to persons under legal age in violation of Iowa Code section 123.47 *434 (1991). 1 Joshua’s father, Robert Fullmer, sued the same parties for his loss of parental consortium. In a separate action the Fullmers sued the driver, Jerry McLaughlin, for loss to the estate and consortium damages sustained as a result of his negligence. The Tagues, in turn, filed third-party claims against McLaughlin. In a separate criminal proceeding, McLaughlin pleaded guilty to vehicular homicide and served time in prison.

Following discovery and prior to trial, the Fullmers voluntarily dismissed their suits against James Tague, Jr. and Jerry McLaughlin. The district court subsequently sustained Paige Tague’s motion for summary judgment. The case went to trial on Fullmers’ claims against defendant Jim Tague and Tagues’ cross-petition against McLaughlin. On the estate’s claim, the jury returned special verdicts for damages in the sum of $60,768, with fault apportioned as follows: Joshua (the decedent), twenty-five percent; Jim (the host), ten percent; Jerry (the driver), sixty-five percent. On Robert’s consortium claim, the jury found that he was without fault and awarded damages of $35,000. No punitive damages were awarded.

On appeal from the judgment entered on the jury’s verdicts, plaintiffs cite three errors. First, they challenge the court’s entry of summary judgment for Paige Tague. Second, they claim the court erroneously substituted its judgment for the jury’s on the consortium verdict. Finally, they assert the court committed reversible error when it refused to admit evidence of a subsequent beer party held at the Tagues’.

Defendant Jim Tague cross-appeals from the court’s refusal to grant him judgment notwithstanding the verdict, alleging that (1) Iowa Code section 123.47 does not prohibit one underage person from selling, serving or supplying beer to another; and (2) the record does not support a finding that Jim Tague affirmatively delivered beer to an underage person in violation of the statute.

For the reasons that follow, we affirm the judgment of the district court.

I. Summary judgment for Paige Ta-gue. The record reveals that Jim Tague hosted this party for his friends in a ravine behind a vacant house once occupied by his family. The premises had been vacated as the result of a mortgage foreclosure, so Jim’s parents were renting a house two blocks away. Jim no longer lived with them. It is undisputed that Jim’s father knew nothing about the party or the purchase of beer until a neighbor told him about the fatal car accident the following morning.

The disputed question is whether Jim’s mother, Paige, knew sufficiently more about the party to subject her to liability for Joshua’s death. In response to Paige’s motion for summary judgment, the district court found as a matter of law that she did not. The record supports the court’s decision.

Iowa Code section 123.47 states:

A person shall not sell, give, or otherwise supply alcoholic liquor, wine, or beer to any person knowing or having reasonable cause to believe that person to be under legal age, and a person or persons under legal age shall not individually or jointly have alcoholic liquor, wine, or beer in their possession or control....

We have held that the statute establishes the minimum standard of care for a common-law negligence action premised on furnishing alcoholic beverages to a minor. Bauer v. Cole, 467 N.W.2d 221, 223 (Iowa 1991); Lewis v. State, 256 N.W.2d 181, 187-89 (Iowa 1977). To prevail on such a cause of action, however, a plaintiff must prove the defendant’s knowing and affirmative delivery of the beer to the underage person. Bauer, 467 N.W.2d at 223-24; DeMore v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983). The statutory term “otherwise supply” means more than merely permitting or allowing beer to be consumed on a defendant’s premises. DeMore, 334 N.W.2d at 737.

The plaintiffs’ case against Paige rested solely on a check she reportedly gave Jim *435 for sixty-five dollars made payable to “Fred’s,” a local gas station. Besides gas, Fred’s also sells pop, snack foods, and beer by the can and keg. Jim used Paige’s check to pay for the beer and the tapper deposit. At the time of the sale,, one of Jim’s friends worked at the gas station. He and Jim agreed that, if asked, the station owner would be told that Paige herself picked up the keg.

In fact plaintiffs’ response to Paige’s motion for summary judgment offered no evidence to suggest that Paige had any knowledge that her check would be used to purchase beer. Moreover, there is not a scintilla of proof that she otherwise knew of the party or the underage drinking. It is undisputed that she neither hosted the party nor was she present where the friends gathered. She did not see, talk to, or give beer to Jerry McLaughlin.

In response to the motion, plaintiffs offered testimony by the gas station attendant that Jim told him his parents planned to chaperone the party and would collect car keys to avoid the risk of impaired drivers. As correctly noted by the district court, this statement could be used at best to impeach Jim Tague’s denial that he ever said such a thing. It was hearsay inadmissible to prove any affirmative knowledge or act on the part of Paige Tague. The record is devoid of any other proof that Jim either gave or would give testimony that his mother knew anything about the party. In the district court’s words, “[depositions have been taken in this case, and the Court is certain that if there were any such testimony plaintiffs would have produced it for the Court.”

A party resisting a motion for summary judgment must come forth with specific facts demonstrating the existence of genuine issues for trial. Suss v. Schammel, 375 N.W.2d 252, 254 (Iowa 1985). We must agree with the district court that the plaintiffs came forward with no proof on the two essential elements of their cause of action against Paige: that she knowingly and affirmatively delivered beer to minors. Thus she was entitled to judgment as a matter of law in accordance with the district court’s ruling.

II. Consortium claim verdict

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500 N.W.2d 432, 1993 Iowa Sup. LEXIS 125, 1993 WL 168483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fullmer-v-tague-iowa-1993.