This article delves into the legal complexities surrounding the tragic death of Nicole Berte in Algona, Iowa, and the subsequent dramshop action involving her surviving minor son, Bryan Berte.
Kossuth County Courthouse in Algona, Iowa
Background of the Case
On November 17, 2000, Randy Lee Bode and Nicole Berte were patrons at Pep's, a liquor licensee in Iowa. Some time after they left Pep's, Bode raped Nicole and strangled her to death. The State initially charged Bode with first-degree murder and first-degree sexual abuse, but he eventually pled guilty to voluntary manslaughter and second-degree sexual abuse.
On November 18, 2002, Chad M. Berte, Nicole's husband, individually, as administrator of Nicole Berte's estate, and as guardian and conservator of Bryan Berte, their minor son, filed a two-count petition against Bode and Pep's. The first count of the petition alleged assault and battery and wrongful death against Bode. The second count alleged a dramshop action against Pep's pursuant to Iowa Code section 123.92 (2001), attaching a notice of intention to bring such action.
The notice informed Pep's of Chad Berte's intention to file a dramshop action in his capacity as guardian and conservator for Bryan Berte. Iowa Code section 123.93 requires the injured person to give written notice of the intention to file a dramshop action within six months of the injury's occurrence. No notice was filed on behalf of Chad Berte individually, and the time period was not extended. Therefore, the dramshop claim was solely for Bryan Berte.
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Dramshop Action and Summary Judgment
Pep's filed a motion for summary judgment, which Berte resisted. An affidavit of one of Bode's former girlfriends was attached to Berte's resistance. In the affidavit, the former girlfriend stated that Bode was generally a nice guy, however, he “became more violent and aggressive when drunk.” The district court overruled the motion, and Pep's application for interlocutory appeal was granted.
In this dramshop action, the district court denied the dramshop defendant's motion for summary judgment. The defendant admitted for the purposes of the motion that it sold and served alcoholic beverages to a patron, and as a result the patron became intoxicated. It is undisputed that shortly thereafter the intoxicated patron raped and killed another patron.
In its motion, the defendant contended that the intoxicated patron's actions in raping and killing the other patron was, as a matter of law, an intervening and superseding cause thereby relieving it of any liability to the deceased patron's surviving minor son.
The Issue on Appeal
Pep's contended on appeal, as it did in the district court, that the sale and service of liquor to a person is not a proximate cause of that person's later act of intentional murder as a matter of law. Rather, the intentional act of murder is a superseding intervening cause that breaks the casual link between the intoxication and the intoxicated person's later injurious acts. For that reason, Pep's argued it should be relieved of liability in this case as a matter of law. Pep's further argued the district court erred in concluding otherwise.
Legal Analysis
Background of Dramshop Laws
At common law, courts refused to recognize a cause of action arising out of the sale or furnishing of intoxicating beverages. The rationale underlying this refusal was that individuals, drunk or sober, were responsible for their own torts. The courts held that drinking the intoxicant, not furnishing it, was the proximate cause of the injury. In other words, the common law considers the act of selling the intoxicating beverage as too remote to serve as the proximate cause of an injury resulting from the negligent conduct of the purchaser of the drink.
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Like a number of states, Iowa passed what is commonly referred to as a dramshop statute. The statute gives parties who are injured by the intoxication of other persons a right of action against the persons from whom the intoxicants were procured. The present day statute, which is the subject of this action, provides:
Any person who is injured in person or property or means of support by an intoxicated person or 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, whether or not the license or permit was issued by the division or by the licensing authority of any other state, 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. If the injury was caused by an intoxicated person, a permittee or licensee may establish as an affirmative defense that the intoxication did not contribute to the injurious action of the person.
Causation in Fact vs. Proximate Cause
Causation has two components: "(1) the defendant's conduct must have in fact caused the plaintiff's damages (generally a factual inquiry) and (2) the policy of the law must require the defendant to be legally responsible for the injury (generally a legal question)." We apply a "but-for" test to determine whether the defendant's conduct was a cause in fact of the plaintiff's harm. Under that test, the defendant's conduct is a cause in fact of the plaintiff's harm if, but-for the defendant's conduct, that harm would not have occurred.
The proximate cause requirement seeks to determine the appropriate scope of a negligent defendant's liability. The central goal of the proximate cause requirement is to limit the defendant's liability to the kinds of harms he risked by his negligent conduct. The proximate cause issue is not about causation at all but about the appropriate scope of responsibility. The issue does not arise until negligence and causation in fact have been proven.
Injurious Acts Caused by an Intoxicated Person
When the injury is inflicted by an intoxicated person, the only question, as it relates to causation in fact, is whether the intoxicated person committed the injurious act. We do not even reach the proximate cause issue because the legislature made the policy decision to impose liability on the one who furnished the intoxicating beverage to the one who inflicted the injury. Proximate cause is therefore not an issue. The defendant has the burden to establish by way of affirmative defense that something other than the intoxication was the cause in fact of the injurious act.
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This defense is now codified in the present statute. See Iowa Code § 123.92 para. 1 (“If the injury was caused by an intoxicated person, a permittee or licensee may establish as an affirmative defense that the intoxication did not contribute to the injurious action of the person.”).
Injuries in Consequence of Intoxication
In contrast to injuries by an intoxicated person, both cause in fact and proximate cause are appropriately the subject of inquiry where injuries occur in consequence of the intoxication. As distinguished from the situations where the injuries were caused by the direct affirmative act of the intoxicated person in which proximate cause is not an issue, in these actions of consequential injuries it must be shown that the intoxication of the patron was a proximate cause of the injury complained of before the defendant tavernkeeper can be held liable.
Application of Law to the Facts
Here it is undisputed that Pep's sold and served alcoholic beverages to Bode, he became intoxicated as a result, and while in that condition raped and killed Nicole Berte. Thus, we have a classic case of death inflicted by the intoxicated person. To prevail on its motion for summary judgment, Pep's had to establish as a matter of law that Bode's intoxication did not contribute to his injurious actions. See Iowa Code § 123.92 para. 1.
Randy Bode's Sentencing
Randy Bode of Algona was sentenced to prison in the death of Nicole Berte of Livermore. Judge Joseph Strom sentenced Bode to the maximum allowed by law, up to ten years for manslaughter and up to 25 for sexual abuse. Bode will also pay 150-thousand dollars in restitution to Berte’s estate. The sentences will run consecutively to a ten-year prison on a previous sexual-abuse charge. Berte’s body was found in a burned-out pickup in November 2000 southeast of Algona. During victim impact statements, Berte’s mother Lois Coalhouse said Bode hasn’t shown any remorse for the crime.
The Supreme Court of Iowa affirmed the decision of the district court and remanded for further proceedings in the dramshop action against Pep's.
What Is The History Of Dram Shop Laws? - InsuranceGuide360.com
Emerald's Fine Food & Libations in Algona, Iowa
The World's Largest Cheeto in Algona
The World’s Largest Cheeto is located at Emerald's Fine Food & Libations in Algona, Iowa. Navy officer Mike Evans found it in a bag of Cheetos and listed it on eBay. Radio DJ Bryce Wilson brought it to Algona to promote the town. The Cheeto is displayed between golf trophies in a walkway.
While you’re in Algona, consider making a few extra stops to:
- Pop into The Antique Home Store (121 E. State St., Algona, IA 50511) for a blast from the past.
- Fuel up with some caffeine and a snack from Feed Mill Coffee Co. (16 E. State St., Algona, IA 50511).
- If you visit during the month of December, you need to experience the Algona Nativity Scene (Kossuth County Fairgrounds, 700 E. Fair St., Algona, IA 50511).
According to Cheetos, the orange dust that covers your fingers while eating Cheetos is officially called “Cheetle.”
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