Summary
In Brakeman v. Theta Lambda Chapter, 01–0250, 2002 WL 31640619 (Iowa Ct.App. Nov. 25, 2002), Brakeman fell out of an upstairs window at a bar.
Summary of this case from Rogers v. Sigma Chi Int'l FraternityOpinion
No. 2-481 / 01-0250
Filed November 25, 2002
Appeal from the Iowa District Court for Pottawattamie County, CHARLES L. SMITH III, Judge.
Defendant appeals a jury verdict for plaintiff on the basis of premises liability. REVERSED AND DISMISSED.
Daniel Chesire and Frederick Harris of Lamson, Dugan Murray, L.L.P., Omaha, Nebraska, for appellant.
Maren Chaloupka of Chaloupka Holyoke Hofmeister Snyder Chaloupka, Scottsbluff, Nebraska, and Michael Reilly of Reilly, Petersen Hannan, Council Bluffs, for appellee.
Timothy Walker and Roscoe Ries, Jr. of Whitfield Eddy, Des Moines, for amicus curiae.
Heard by SACKETT, C.J., and VAITHESWARAN and EISENHAUER, JJ.
This appeal follows a jury verdict for plaintiff Tristan L. Brakeman on the basis of premises liability against defendant Theta Lambda Chapter of Pi Kappa Alpha at Creighton University. The injury forming the basis of plaintiff's suit happened on property licensed and operated as a bar by a third party not a party to this suit. The focal question is whether the district court should have granted defendant's motion for directed verdict because there was no showing that defendant had control of the premises where the party was held. Defendant also claims the district court 1) should not have allowed evidence of disciplinary actions taken against the defendant fraternity; (2) should have given a curative instruction after a count against defendant for negligently supplying alcohol to a minor was dismissed; and (3) should have sustained an objection to testimony of a safety expert. We reverse and dismiss.
Plaintiff Tristan L. Brakeman fell out of an upstairs window at "1892," a bar in Council Bluffs, Iowa, operated by BADD, Inc. The bar was an establishment licensed in Iowa for the sale of alcoholic beverages. At the time of her fall plaintiff was a guest of a member of defendant, a social fraternity. She was less than twenty-one years of age and had been drinking both on and off the premises. The fraternity had made arrangements to hold a party in a party room at the bar. The establishment provided and dispersed all liquor, which was paid for as it was served. The bar used wristbands to distinguish between those who were of legal age to drink alcoholic beverages and those who were not. Besides the fraternity group, a second group not affiliated with the fraternity was in the room where the party was held. The fraternity was not charged for the party room.
Following her fall plaintiff sued the defendant on a number of theories alleging the fraternity's responsibility for her fall. The case was submitted to the jury only on the theory of premises liability. The jury returned a verdict finding fault on the part of the plaintiff at forty percent and on the part of the fraternity at sixty percent. The jury determined that plaintiff's total damages were $421,052.
On appeal defendant contends there was not substantial evidence to support a verdict on a theory of premises liability because (1) plaintiff failed to show that the bar had relinquished its control over the premises to the defendant, (2) there was no showing any fraternity member created the dangerous condition that caused plaintiff's fall, (3) the district court failed to give certain curative instructions, and (4) the district court erred in allowing the testimony of a safety expert on defendant's duty of care.
The fraternity first contends the plaintiff failed to establish the owner of the Council Bluffs bar relinquished its preexisting control over its premises to the fraternity.
The standard of review when the issue is whether a legal duty exists is for correction of errors at law. Iowa R.App.P. 6.4; Wiedmeyer v. Equitable Life Assur. Soc'y of U.S., 644 N.W.2d 31, 33 (Iowa 2002); Allison by Fox v. Page, 545 N.W.2d 281, 282 (Iowa 1996).
The elements of a negligence claim are the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages. See Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999); Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995). The possessor of land is under a duty to use ordinary care to keep the premises in a reasonably safe condition for business invitees. Van Essen, 599 N.W.2d at 719. This duty requires the possessor to use reasonable care to ascertain the actual condition of the premises. Id. The duty also requires the possessor to make the area reasonably safe or to give warning of the actual condition and risk involved. Id.; Konicek v. Loomis Bros., Inc., 457 N.W.2d 614, 618 (Iowa 1990) (citations omitted).
The Iowa Supreme Court has adopted the definition of "possessor" contained in section 328E of Restatement (Second) of Torts. Wiedmeyer, 644 N.W.2d at 33; Van Essen, 599 N.W.2d at 719. This section of the Restatement provides,
A possessor of land is
(a) a person who is in occupation of the land with the intent to control it, or
(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under clauses (a) and (b).
Weidmeyer, 644 N.W.2d at 33 (citing Restatement (Second) of Torts § 328E (1965)).
Possessor status and the corresponding duty of due care turns not on ownership, but on occupation. See Weidmeyer, 644 N.W.2d at 33. Control is a necessary condition for any liability for breach of this duty. See Poyzer v. McGraw, 360 N.W.2d 748, 751 (Iowa 1985); Shill v. Careage Corp., 353 N.W.2d 416, 420 (Iowa 1984). Liability is premised on control. See Robinson v. Poured Walls of Iowa, Inc., 553 N.W.2d 873, 875 (Iowa 1996). The rationale behind this premise is that one who has transferred control of land is no longer in control of the property and cannot enter the property to correct defects. In order to have the occupation or control of premises necessary to impose a legal duty with respect to the condition or use of those premises, one must ordinarily have the power and the right to admit individuals to the premises, or to exclude them from the premises. Rockafellow v. Rockwell City, 217 N.W.2d 246, 250 (Iowa 1974) (Harris, J., dissenting) (citation omitted).
The focal question is whether defendant had control of the premises. The evidence shows the following: the bar staff was on the premises the entire time and took the responsibility for determining if the patrons were of legal drinking age; all alcohol was served by the staff of the establishment, and the staff had the right to shut the party down if things got out of hand; the premises were shared with another group; there was no evidence the defendant had the right to enter the premises to cure any alleged defects, or that it was expected to cure any defects.
Defendant further contends there was no evidence a fraternity member caused the fall. Though there was evidence that one of the fraternity members noted a broken window when visiting the premises prior to selecting it for the party, there was no evidence that was the window from which the plaintiff fell, nor is it clear that she fell because a window had been broken earlier. Plaintiff admitted drinking, and said she leaned back and fell. She also testified the party was out of control. Defendant contends these allegations have nothing to do with premises liability.
As we have stated, liability is premised upon control. Van Essen, 599 N.W.2d at 720, n. 3 (citation omitted). There is not substantial evidence in this case to support a finding defendant had the control necessary to be considered a "possessor of the land." Whether a person is a possessor of land is a threshold issue to finding liability. See Hoffnagle v. McDonald's Corp., 522 N.W.2d 808, 813 (Iowa 1994). If a party is not a "possessor of land" there can be no liability. See Downs v. A H Const., Ltd., 481 N.W.2d 520, 524 (Iowa 1992).
We reverse on this ground and therefore find it unnecessary to consider defendant's other challenges.