McKinnon Q. Pangburn v. Rookies, Inc. d/b/a Rookies Sports Bar ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1353
Filed October 20, 2021
McKINNON Q. PANGBURN,
Plaintiff-Appellant,
vs.
ROOKIES, INC. d/b/a ROOKIES SPORTS BAR,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
McKinnon Q. Pangburn appeals from grants of summary judgment for
defendant Rookies, Inc. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Sharbel A. Rantisi of Rantisi Law LLC, Peoria, Illinois, for appellant.
Amanda M. Richards of Betty, Neuman & McMahon, P.L.C., Davenport, and
Jace T. Bisgard and Megan R. Merritt of Shuttleworth & Ingersoll, Cedar Rapids,
for appellee.
Considered by Tabor, P.J., and Greer and Badding, JJ.
2
TABOR, Presiding Judge.
After a birthday-celebration-gone-wrong, Anthony Keckler assaulted
McKinnon Q. Pangburn. Injured and seeking redress, Pangburn filed dram shop
and premises liability actions against Rookies Sports Bar. The district court
granted summary judgment on both claims. Because the court applied the wrong
legal standard on the dram shop claim, we reverse. But the record does not
present a jury question on the premises liability claim, so we affirm the grant of
summary judgment.
I. Facts and Prior Proceedings
In March 2017, Devin Allison turned twenty-one years old. Like many
people his age, Allison wanted to celebrate this milestone. So he gathered a group
of friends, intent on making it a night to remember. But the night took an
unexpected turn. And some patrons leaving Rookies Sports Bar encountered
trouble in the parking lot.
Rookies offered a unique deal for its newly-of-age patrons. Come in on
your twenty-first birthday—or a few days in either direction—and for only $21, you
get twenty-one thirty-two-ounce pitchers of beer.1 Enticed, Allison’s group handed
over $21, and the tap started flowing. And because the deal was so good they did
it twice, ordering a second round of pitchers after midnight.
1 Patrons could choose eleven standard sized (sixty-four-ounce) pitchers instead
of twenty-one small pitchers.
3
Given it was his birthday, Allison wasn’t buying. Instead, his friend Brandon
Rheingans did. Rheingans went to the bar, ordered the deal, and paid for the
pitchers. He also shuttled the beer to the table, two pitchers at a time.2
Beer aplenty, the group celebrated. Among Allison’s ten friends on hand to
celebrate was Anthony Keckler. And although Keckler did not buy the beer, he did
help himself to the pitchers, eventually becoming intoxicated. In his intoxicated
state, Keckler grew loud and rude, confronting another of Allison’s friends.
But that wasn’t the last confrontation Keckler would find himself in. As the
night neared its end, a fight broke out in Rookies’s parking lot after a man urinated
on the tire of a parked car.3 Despite having no connection to the dispute, more
than a dozen other patrons—including Keckler—joined in the brawl.
Although unknown to him, Keckler directed his assault at McKinnon
Pangburn. He pushed Pangburn to the ground. Then Keckler yelled: “I’m from
Alabama bitch,” while kicking Pangburn in the head. The assault caused Pangburn
serious injuries, including a nasal fracture, a cranial fracture, and permanent brain
damage. For his role, Keckler pleaded guilty to assault causing serious injury and
was sentenced to an indeterminate five-year prison sentence.
Pangburn sued Rookies, bringing dram shop and premises liability claims.
In moving for summary judgment on the dram shop count, Rookies alleged its
employees did not sell or serve beer to Keckler.4 During depositions, Keckler,
2 When the pitchers were empty, Rheingans returned them to the bar and received
refills. The bar kept a tally of how many pitchers were outstanding.
3 The men involved in the original confrontation are not a part of this lawsuit.
4 The bar filed two separate motions for partial summary judgment because it was
represented by different law firms on the dram shop and premises liability counts.
4
others in his group, and Rookies bartenders testified that Keckler only drank from
the pitchers that Rheingans bought and brought to the table. But their testimony
had limitations. For instance, despite his certainty at deposition, right after the fight
Keckler had memory issues as he spoke to police. And one of the bartenders
acknowledged the “possibility” that she had served Keckler.5
As for the premises liability claim, the parties focused on the bar’s security.
Video footage from inside the bar showed bouncers leaving their post, allowing
patrons to freely exit Rookies with drinks in hand, and failing to intervene during a
verbal dispute between two patrons. Rookies also moved for summary judgment
on that count, alleging no breach of duty because Keckler’s attack on Pangburn
outside the bar was not foreseeable.
The district court granted summary judgment on both claims. Pangburn
now appeals.
II. Standard of Review
We review grants of summary judgment for errors at law. Smith v.
Shagnasty’s Inc., 688 N.W.2d 67, 71 (Iowa 2004). On appeal, we review the
record in the light most favorable to the nonmoving party. Bill Grunder’s Sons
Const. Inc. v. Ganzer, 686 N.W.2d 193, 196 (Iowa 2004). If the district court
correctly applied the law and there was no genuine issue of material fact, we affirm.
Id. We consider an issue to be material if its determination affects the suit’s
5 Aside from acknowledging that “possibility,” the bartender admitted drinking on
the job. Within an hour, she had five shots, as well as sips from customers’ beers.
5
outcome. Id. And the dispute is genuine if a reasonable jury could return a verdict
for the nonmoving party. Id.III. Analysis
A. Dram Shop
At the heart of this dispute is the phrase “sold and served.” On appeal, the
parties disagree (1) on the precise meaning of “sold and served” and (2) whether
there was a genuine dispute that Rookies employees sold and served alcohol to
Keckler. Because the legal standard determines which facts are pertinent, we
begin with the law.
The dram shop statute—a subsection of the Iowa Alcoholic Beverage
Control Act—“place[s] the hand of restraint” on those authorized to sell alcohol.
Thorp v. Casey’s Gen. Stores, Inc., 446 N.W.2d 457, 467 (Iowa 1989) (quoting
Atkins v. Baxter, 423 N.W.2d 6, 9 (Iowa 1988)). At the time of these events, the
statute provided:
Any person who is injured . . . by an intoxicated person . . . has a
right of action . . . 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, or who sold to and served the person to a
point where the licensee or permittee knew or should have known
the person would become intoxicated.
Iowa Code § 123.92(1)(a) (2017).
The rest of the chapter gave context. Section 123.110 provided: “It shall
not be necessary in every case to prove payment in order to prove a sale within
the meaning and intent of this chapter.” Section 123.3(41) defined “sale” of alcohol
as including “procuring or allowing procurement for any other person.” And
6
section 123.1 reminded courts to construe this chapter liberally “for the protection
of the welfare, health, peace, morals, and safety of the people of the state.”
And based on these statutory mandates, our supreme court has allowed
dram shop claims where there was only an indirect sale.6 For example, in Sanford
v. Fillenwarth, the court upheld a dram shop claim against a resort that sold “booze
cruise” experiences. 863 N.W.2d 286, 292 (Iowa 2015). Michael Lawler bought
the cruise tickets for himself, his wife, and their two adult children. Id. at 288. As
the cruise wore on, his son, James, became intoxicated and assaulted a fellow
passenger. Id. The district court granted summary judgment holding that, as
matter of law, a “sale” had not occurred. Id. at 288–89. But the supreme court
disagreed. Id. at 294. It was unbothered that Michael, not James, bought the
alcohol, because the resort “had reason to know that multiple persons were staying
in the room with access to and use of all the amenities [including alcohol] in
exchange for . . . payment.” Id. at 293–94. Finding that James fell “within the
rubric of sale for purposes of this statute,” the court reversed. Id. at 294.7
6 It’s worth noting that the legislature amended the dram shop act since the events
of this case. The act now explicitly requires a direct sale and service. Iowa Code
§ 123.92 (2018) (imposing liability on establishments that “sold and served any
alcoholic beverage directly to the intoxicated person, provided that the person was
visibly intoxicated at the time of the sale or service”). That amended language
supports our holding that the pre-2018 statute covered indirect sales and service.
See Paul v. Ron Moore Oil Co., 487 N.W.2d 337, 338 (Iowa 1992) (“We assume
the amendment sought to accomplish some purpose and was not simply a futile
exercise of legislative power.”).
7 The district court relied on our unpublished decision in Hawthorne v. Estate of
Krommenhoek, No. 12-1455, 2013 WL 2637176, at *1 (Iowa Ct. App. June 12,
2013), in which we rejected a dram shop claim because the intoxicated patron’s
girlfriend bought pitchers of beer for their group. Notably, that decision predated
Sanford.
7
Earlier, in Smith, the court allowed a dram shop claim to proceed although
neither the injured patron nor the server identified the intoxicated party by name.
688 N.W.2d at 73–74. That the intoxicated person (“Jane Doe”) was holding a
bottle of beer—the same kind that the bar sold—at the time of the attack was
enough to satisfy the “sold and served” requirement. Id. And the court never
inquired into whether someone else might have bought the beer on Doe’s behalf.
What’s more, extending liability to indirect sales aligned with the dram shop
statute’s “restraint” function. The statute was meant to encourage responsible
business practices. See Sanford, 863 N.W.2d at 291–92 (“The legislature did not
want to impose liability . . . without [the licensee or permittee] tangibly benefitting .
. . [like] when they profit from selling of alcoholic beverages.”). Because of this
purpose, the act didn’t punish “purely gratuitous undertakings.” Summerhays v.
Clark, 509 N.W.2d 748, 751 (Iowa 1993). Instead, Sanford endorsed a “pragmatic
approach to the meaning of the word ‘sale,’” looking for consideration and express
or implied payment. 863 N.W.2d at 291. And because bars derive profit even if
the sale was indirect, the statute applied to patrons who drank on someone else’s
tab. See Banwart v. 50th St. Sports, L.L.C., 910 N.W.2d 540, 543 (Iowa 2018)
(allowing dram shop action where intoxicated person’s bosses bought rounds for
their table).
Next we consider the term “served.” Rookies again argues Pangburn must
have proof of direct service to trigger liability. Unlike “sale,” the code did not define
“served.” So we turn to the case law.
In Paul, our supreme court considered the word “served” shortly after it was
added to the dram shop statute. 487 N.W.2d at 338. The court believed that the
8
legislature intended to narrow the licensees that could be found liable by excluding
convenience stores that only sold alcohol. Id. The court held “the context within
which the word ‘served’ is used . . . refers to service of the intoxicating beverage
rather than service to the customer.” Id. So the operative question became
whether the sale was made “with the intent that [the alcohol] be consumed on the
premises.” Kelly v. Sinclair, 476 N.W.2d 341, 346 (Iowa 1991), abrogated on other
grounds by Thompson v. Kaczinski, 774 N.W.2d 829, 836 (Iowa 2009). Because
Rookies sold the pitchers with the intent that they be consumed on the premises,
the “service” element is satisfied.8
Having determined that the phrase “sold and served” required neither direct
sale nor direct service, we turn to the facts before the district court. Keckler and
about nine other friends patronized Rookies for over four hours. During that span,
their friend Rheingans bought the 21-for-$21 deal twice, ordering the equivalent of
forty-two pitchers of beer.9 True, Rheingans paid for the beer. But it’s undisputed
that Keckler partook. Another friend testified she saw him “walking around the bar”
holding “two pitchers in his hand at once.” And Keckler admitted in his deposition
that he was “obviously intoxicated.”
Given these undisputed facts, Pangburn presented a genuine issue of
material fact whether Rookies employees sold and served beer to Keckler when
they knew or reasonably should have known that he was intoxicated or would
8 We also note the bartender’s acknowledgment in her deposition that she may
have served Keckler alcohol.
9 Forty-two thirty-two-ounce pitchers equals: 1,344 ounces of beer, 112 standard
cans, 84 pints, or 10.5 gallons.
9
become intoxicated. So the district court erred in granting summary judgment on
dram shop liability. We reverse and remand on that claim.
B. Premises Liability
Beyond the dram shop claim, Pangburn challenges the grant of summary
judgment on his premises liability action. His negligence claim requires proof of
four elements: (1) a duty to conform to a standard of conduct to protect others,
(2) a failure to conform to that standard, (3) factual cause and scope of liability,
and (4) damages. See Thompson, 774 N.W.2d at 839 (adopting formulation from
Restatement (Third) of Torts: Liability for Physical and Emotional Harm).
Rookies concedes it owed a special duty of care to Pangburn as a patron.
See Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 775 (Iowa 2013). But
it emphasizes “taverns are not insurers of patrons’ safety against third-person
criminal attacks.” See id. at 777. From there, Rookies contends the district court
was correct in finding, as matter of law, it did not fail to exercise reasonable care.
In that reasonable care analysis, Rookies focuses on foreseeability. 10 It argues
the injuries to Pangburn were not foreseeable because the fight occurred in the
parking lot and the record revealed no proof that Pangburn and Keckler interacted
inside the bar.
To counter, Pangburn argues “only in exceptional cases should the
foreseeability issue be determined as a matter of law.” See id. at 775
10 “‘[T]he assessment of the foreseeability of a risk’ is no longer part of the duty
analysis in evaluating a tort claim, and instead is to be considered when the fact
finder decides whether a defendant has failed to exercise reasonable care.” Hoyt,
829 N.W.2d at 774 (quoting Thompson, 774 N.W.2d at 835). Foreseeability is also
relevant in the scope-of-liability determination. Id. at 781.
10
(“[A]ssessment of foreseeability should be allocated to the fact finder, as part of its
determination of whether appropriate care has been exercised in any given
scenario.”). And he insists Rookies security failed to prevent the altercation,
highlighting Keckler’s obvious intoxication and that Rookies staff was inattentive.
On that last point, the district court agreed that Rookies staff did not follow
the bar’s own policies. Yet the court reduced its analysis to the differences from
the summary judgment record in Hoyt, finding “the facts at hand are a dramatic
departure from the facts that shaped that outcome.” The court noted Hoyt had a
pre-existing conflict with the third-party attacker and their dispute started inside the
bar. Hoyt, 829 N.W.2d at 773. By contrast, Keckler and Pangburn were strangers
until they fought in the parking lot.
Pangburn blasts the court’s reasoning, submitting that “foreseeability does
not require that the parties have a prior altercation or relationship.” We agree the
facts in Hoyt are not a prerequisite for finding premises liability. Under the
Restatement (Third) a defendant may be held liable for the actions of a third party
if the defendant’s lack of reasonable care “combines with or permits” the improper
conduct of the third party. Restatement (Third) of Torts: Liab. for Physical and
Emotional Harm § 19, at 215; see Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist.,
788 N.W.2d 386, 391 (Iowa 2010). Section 19 supplies scenarios showing how a
defendant’s conduct may contribute to the likelihood of injury by a third person:
For example, the defendant’s conduct may make available to the
third party the instrument eventually used by the third party in
inflicting harm; or that conduct may bring the plaintiff to a location
where the plaintiff is exposed to third-party misconduct; or that
conduct may bring the third party to a location that enables the third
party to inflict harm on the plaintiff; or the defendant’s business
operations may create a physical environment where instances of
11
misconduct are likely to take place; or the defendant’s conduct may
inadvertently give the third party a motive to act improperly.
Restatement (Third) § 19 cmt. e, at 218.
Seizing on those concepts, Pangburn contends Rookies’s business
operations created a physical environment where Keckler’s misconduct was likely
to occur. In his words, “ignoring what is taking place in and around the place of
business is not an affirmative defense to the question of foreseeability, particularly
following a night of several young people binge drinking in a bar that allowed and
encouraged the binge drinking to take place.”
Granted, a bar “may play a role in creating the risk.” Hoyt, 829 N.W.2d at
778 n.6. But it must be a risk that creates a setting where instances of misconduct
are likely to take place. See Restatement (Third) § 19 cmt. g, at 220 (“[T]he law
itself must take care to avoid requiring excessive precautions of actors relating to
harms that are immediately due to the improper conduct of third parties, even when
that improper conduct can be regarded as somewhat foreseeable.”).
Searching for that likelihood of third-party misconduct, Pangburn points to
the bar staff’s lack of vigilance. As an example, he suggests staff failed to
intervene when two patrons got into a dispute inside the bar just before midnight.
But the video footage undercuts this claim. True, two patrons appeared to have a
disagreement.11 But the encounter included fleeting, if any, physical contact and
resolved itself without intervention. Next, Pangburn points to Keckler’s
11Neither Keckler nor Pangburn were involved in this argument. And though
possible, there’s no indication that the two disputing patrons were involved in the
parking-lot melee later that evening.
12
intoxication, leading him to glad-hand and hug a bouncer whom he never met
before. But bar patrons with lowered inhibitions are far from unusual. While
Pangburn offered evidence Keckler was loud and rude to another member of the
birthday group, the record does not show Keckler was acting aggressively. Neither
the staff’s inattentiveness nor Keckler’s behavior inside the bar supported
Pangburn’s theory that Rookies’s business operation promoted the likelihood of
injury by a third person.
Before concluding, we turn to Pangburn’s argument that the bar failed to
“deescalate the situation” in its parking lot. He contends as tensions were rising
outside, the bouncers were not at their post. He asserts “[t]he activity leading up
to the assault lasted approximately [seven] minutes; in other words, there was
about [seven]-minutes worth of people gathering right outside the main entrance
and people seemingly discussing the incident that caused the fight.” Trouble is
that Pangburn’s brief fails to include “references to the pertinent parts of the record”
in support of those assertions. Because his omission violates Iowa Rules of
Appellate Procedure 6.903(2)(g)(3) and 6.904(4), we find Pangburn waived that
portion of his argument.
But even if we could consider whether Rookies failed to exercise reasonable
care in supervising its parking lot, no evidence in the summary judgment record
supports that theory. Nothing in the record connects any danger brewing outside
to the bouncers’ absence from their post.12 And what is presented is too
12Our record includes only surveillance video from inside Rookies. The camera
angle captured just a small portion of the parking lot through the front door. Neither
the brawl nor the crowd is ever in frame; only a parked car, patrons entering and
13
speculative to survive summary judgment. See Banwart, 910 N.W.2d at 545
(reiterating standard that nonmoving party must set forth specific facts showing the
existence of a genuine issue for trial).
The district court was correct in finding Pangburn failed to establish his
premises liability claim as a matter of law. But genuine issues of material fact
remain for Pangburn’s dram shop claim. Thus summary judgment was improper.
We reverse in part and remand for trial on that claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
exiting, and some shadows are visible. At the summary judgment hearing, defense
counsel said Rookies had video “that shows their parking lot, and . . . [at the] corner
of that video, you can see the altercation start.” Indeed, a still photo taken from
outside video footage was submitted with the exhibits from Keckler’s criminal case.
But that video was not submitted as part of the record on appeal. Thus we cannot
speculate about the diligence of Rookies staff in responding to the simmering
unrest in the parking lot.