author: WIGGINS, Justice. STREIT, Justice

text:
    Kecia D. ANDERSON, Appellant, v. STATE of Iowa and Marilyn Mercado, Appellees.
    No. 03-0322.
    Supreme Court of Iowa.
    Feb. 11, 2005.

      Bruce L. Braley of Dutton, Braun, Staack, Heilman, P.L.C., Waterloo, for appellant.
    Thomas J. Miller, Attorney General, and Julie A. Burger, Assistant Attorney General, for appellees.
   WIGGINS, Justice.

Kecia Anderson brought a tort claim against Marilyn Mercado and the State of Iowa for injuries she sustained in a fall on the campus of the University of Northern Iowa. Anderson alleged Mercado and the State were negligent in failing to close the library early due to the weather conditions. She also alleged the State was negligent for failing to remove ice from the walkway, a claim based on premises liability. The district court directed a verdict on Anderson’s claim against Mercado and the State for their failure to close the library early due to the weather conditions because the decision to keep the library open was a discretionary function. The district court submitted the premises liability case against the State on the theory Anderson was an invitee. The jury returned a verdict adverse to Anderson on the premises liability claim. Anderson appealed contending the decision to keep the library open was not a discretionary function, and the district court erred in its instructions to the jury on the premises liability case. The court of appeals reversed the district court on the issue of discretionary function but affirmed on the errors claimed in the jury instructions. We hold the decision to keep the library open is immune from liability under the discretionary function exception. The court, being evenly divided on the jury instruction issue, affirms the decision of the district court on this issue.

I. Background Facts and Proceedings.

On February 8, 2001, Anderson arrived at the library on the campus of the University of Northern Iowa in the early evening to study for an exam. The library closed at 12 a.m. Andersen left the library at approximately 11:55 p.m. By that time, a winter storm had caused icy conditions on the campus’s streets and sidewalks. As soon as Anderson walked beyond the overhang of the library, she slipped and fell on the ice injuring herself.

The weather on the evening of February 8, 2001 was particularly hazardous because of the storm. Although several employees at the library became concerned as the storm grew worse during the course of the evening, the library remained open. Mercado, the interim dean of the library, was in charge of the library until she left the building sometime after 5 p.m. Linda McLaury, a library assistant, returned to the library from her evening meal around 8 p.m. At that time, McLaury observed the sidewalks were starting to get a little slick. Barb Weeg, a librarian, left the library around 9 p.m. On Weeg’s trip home, she observed icy conditions and became concerned for the safety of the students and employees working in the library. Upon arriving home, Weeg called McLaury to repoxt the sidewalks around the university were icy, but the roads in town “were not too bad.” Weeg instructed McLaury to contact Mercado about the icy conditions and to inquire whether the library should remain open under these weather conditions. Mercado had the authority to close the library early under severe weather conditions. McLaury called Mercado at her home sometime between 9:30 and 10 p.m.

McLaury expressed Weeg’s concerns to Mercado about the weather. Mercado lived in rural Parkersburg, which is several miles away from Cedar Falls, the location of the library. McLaury told Mercado that Weeg told her the “sidewalks were icy,” and she thought the student working at the reference desk was concerned and might need to go home. Mercado remembers checking the traffic on the highway in front of her home, but it was hard for her to assess the situation in Cedar Falls from the traffic on the highway where she lived. Mercado then asked McLaury whether she was concerned for her own safety. McLaury replied she was fine and had no problems with staying until closing. After McLaury assured Mercado she could handle the duties without the help of the students, Mercado told McLaury to ask the three students working in the library if they needed to go home because of the weather. Mercado also asked McLaury how many people were in the building, because the number of persons using the library bears on Mercado’s decision whether to shut down the library. McLaury responded about thirty to thirty-five people were in the building. Mercado then made the decision to keep the library open until closing. She told McLaury to call her back if anything else came up that evening.

At trial, Mercado testified two other factors not discussed in her phone conversation with McLaury influenced her decision to keep the library open. First, was the library’s written weather/working policy. Although the university intended the weather/working policy to clarify the policy for library personnel, it contained the following statement from an article in the December 9, 1996 Campus News Network, which provided:

It is the policy of the University to continue normal hours of operation and maintain a regular work schedule for staff members during periods of severe weather and/or adverse working conditions. It is a basic premise of this policy that University faculty, staff, and students shall have the opportunity to make their own decision about reporting to work or class with due consideration for travel safety conditions.

The second factor to influence Mercado’s decision to keep the library open was Weeg’s tendency to exaggerate and to be over-concerned about things.

The evidence at trial differed as to the conditions that evening. According to one of the student employees at the library, sometime after 8 p.m., a patron arrived at the library and inquired as to whether the library would stay open during the storm. The patron described the weather as “very scary.” In contrast to this testimony, a student assistant reported to work at 9 p.m. She testified it was dark and rainy but she did not encounter or notice any icy conditions around the library. This assistant did have one patron ask whether the library would be open the rest of the evening. At no time did this patron tell the assistant it was icy outside. The assistant saw about ten patrons enter the library between 9 p.m. and closing. Not one patron expressed any concern about the weather. McLaury recalls seeing fifteen to twenty students leaving the library between 11:40 and 11:50 p.m. Not one of these students returned to the library to report icy conditions or that anyone had fallen outside the library.

After she sustained her injury, Anderson filed a tort claim with the State Appeal Board. After six months, Anderson withdrew the claim and filed a petition and jury demand in district court. Her petition alleged Mercado and the State were negligent in failing to close the library early due to the weather conditions. She also alleged the State was negligent for failing to remove ice from the walkway, a claim based on premises liability. The case proceeded to trial. At the close of Anderson’s evidence, defendants moved for a directed verdict on several grounds, including the discretionary function immunity. The district court granted the motion and entered a directed verdict in favor of Mercado and the State on the basis the decision not to close the library was subject to discretionary function immunity. The district court submitted the case against the State on the premises liability claim. The jury returned a verdict in favor of the State. Anderson filed a motion for a new trial, which the trial court overruled. Anderson appealed.

The court of appeals held Mercado’s decision to keep the library open was not subject to discretionary function immunity. It stated “the simple determination that weather conditions did not warrant the early closing of the library is not ... a policy driven analysis. It is not a decision supported by social, political, or economic policies.” The court of appeals affirmed on the premises liability claim. This court granted further review.

II. Issues.

On further review, we can review any or all of the issues raised on appeal or limit our review to just those issues brought to our attention by the application for further review. Smith v. Shagnasty’s Inc., 688 N.W.2d 67, 72 (Iowa 2004). Anderson raises two issues on appeal relevant to our disposition of this case: (1) whether the district court erred in granting the directed verdict; and (2) whether the district court erred in instructing the jury on the premises liability claim.

III. Scope of Review.

Our review of a district court’s granting of a directed verdict is for correction of errors at law. Ette v. Linn-Mar Cmty. Sch. Dist., 656 N.W.2d 62, 66 (2002). On appeal, we view the evidence in the light most favorable to the verdict, taking into consideration all reasonable inferences that could be fairly made by the jury. Id. We review a court’s refusal to give an instruction for an abuse of discretion, while we review challenges to jury instructions for correction of errors at law. Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004).

IV. Did the District Court Err in Granting the Directed Verdict?

The district court granted Mercado and the State’s directed verdict by concluding the decision to keep the library open was a discretionary function under Iowa Code section 669.14(1) (2001). The question we must decide is whether the district court correctly interpreted section 669.14(1) and applied it to the evidence.

The State does not waive its sovereign immunity for actions “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion be abused.” Iowa Code § 669.14(1). For purposes of determining whether an action is a discretionary function under Iowa Code chapter 669, the Iowa Tort Claims Act, our analysis is effectively identical to a discretionary function analysis under Iowa Code chapter 670 governing the tort liability of governmental subdivisions. Schmitz v. City of Dubuque, 682 N.W.2d 70, 73 (Iowa 2004). Immunity is the exception, and liability is the rule under the tort claims acts. Id. at 74. The discretionary function immunity is an affirmative defense raised by the defendant, and the party asserting immunity has the burden to prove the immunity. Id. at 73.

We utilize a two-step test for determining whether a challenged action falls within the discretionary function exception, and thus is entitled to statutory immunity from tort liability. The test requires the court to consider whether the action is a matter of choice for the acting employee and when the challenged conduct involves an element of judgment, to determine whether that judgment is of the kind the discretionary function exception was designed to shield. Iowa Code § 670.4(3); Bellman v. City of Cedar Falls, 617 N.W.2d 11,19 (Iowa 2000).

Anderson concedes Mercado and the State met the first prong of the test. Therefore, we must decide whether the second prong is satisfied. This court has adopted the Supreme Court’s holding that the discretionary function exception “protects only governmental actions and decisions based on considerations of public policy.” Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1959, 100' L.Ed.2d 531, 541 (1988); Goodman v. City of Le Claire, 587 N.W.2d 232, 237-38 (Iowa 1998). To determine whether Mercado and the State established Mercado based the decision to keep the library open on considerations of public policy, a review of our recent decisions on this issue is necessary.

In Bellman, an accident involving an unattended golf cart killed a young boy during a school safety program. 617 N.W.2d at 15. Someone left the keys in the golf cart’s ignition, and several unsupervised children went in the cart. Id. One child stepped on the gas pedal, which released the emergency break and activated the cart’s electric motor. Id. The victim was pinned against the side of an ambulance by the golf cart resulting in his death. Id. In deciding whether the school district was immune from suit, we held discretionary function immunity only attaches to governmental decisions and actions based on policy considerations grounded on social, economic, or political reasons. Id. at 19. Because the teacher did not base her decision in supervising the children on such policy considerations, we concluded the school district was not immune. Id.

In Doe v. Cedar Rapids Community School District, mothers on behalf of three female students brought an action against a school district for vicarious liability and for the negligent hiring, retention, and supervision of a teacher who allegedly engaged in improper sexual conduct with the three female students. 652 N.W.2d 439, 440 (Iowa 2002). We concluded, “the school’s judgment concerning this teacher did not involve the permissible exercise of policy judgment.” Id. at 444. We further noted the school failed to show any social, political, or economic factors at the heart of the decision to hire, retain, and supervise a particular teacher entitling the decision to protection from judicial review. Id. at 445. The decisions made in supervising the teacher were merely ad hoc decisions based on the circumstances existing at the time the school made the decisions. Id.

In Ette, we once again held the discretionary function immunity was not available for a school district. 656 N.W.2d at 70. The controlling question presented in this case was whether the school’s decision to send a student home from Texas alone on a long bus trip for a violation of school rules was a judgment call driven by social, economic, or political concerns. Id. at 68. We held it was not, because under the unique facts of the case to do so would nullify the school’s duty to supervise this particular student and protect him from reasonably foreseeable risks. Id. at 69.

Similarly, in Madden v. City of Eldridge, we held the city was not entitled to discretionary function immunity for failing to inspect an apartment building ceiling that collapsed causing the death of a tenant. 661 N.W.2d 134, 135 (Iowa 2003). We held while safety could be a legitimate policy consideration under certain circumstances, there was no evidence in the record to suggest the building inspector engaged in the required policy analysis before he decided not to inspect drywall. Id. at 139-40 (stating “[a]n immune governmental function is ‘one that weighs competing ideals in order to promote those concerns of paramount importance over the less essential, opposing values’ ” (citations omitted)). We concluded the building inspector made an “ad hoc decision, tailored to the particular circumstances before him at the final inspection.” Id. at 140.

In Graber v. City of Ankeny, the plaintiff, who was injured in an intersection collision, brought an action against the city for failing to properly set the timing of the traffic signals. 656 N.W.2d 157, 159-60 (Iowa 2003). We held the city was not immune based on the discretionary function exception. Id. at 166. We determined there was no evidence anyone of authority balanced any priorities of competing importance. Id. We stated, “[t]he mere existence of a sweeping safety consideration does not catapult the city’s actions into the zone of immunity for decisions based upon social, economic, or political policy.” Id. at 165.

In Messerschmidt v. City of Sioux City, a drunk driver struck and injured the plaintiff. 654 N.W.2d 879, 880-81 (Iowa 2002). The plaintiff brought a negligence action against the city alleging the city improperly removed a road barricade. Id. at 881. The city claimed it was immune from liability under the discretionary function immunity exception. Id. After deciding the first prong of the test was satisfied, we then determined the challenged action did not involve policy-making decisions and significant judgment. Id. at 882. Further, we concluded the city had “not met its burden to prove considerations based on social, economic, or political policy were involved in its decision to take the barricade down.” Id.

Finally, in Schmitz we once again found the discretionary immunity exception did not protect the city’s decision to add an asphalt overlay to a bike trail without raising the shoulders or grinding off the old asphalt to prevent a one and one-half inch drop-off. 682 N.W.2d at 76. Specifically, we concluded the

city produced no evidence that the choice it made with respect to whether the overlay should be done with or without grading of the accompanying shoulders was the sort of decision that the discretionary function immunity intends to protect, i.e., a decision weighing “social, economic, or political policies.”

Id.

The common thread running through all these decisions defeating the discretionary function immunity was the record in each of these cases did not show the governmental entity based its actions on the required policy considerations, as distinguished from an action arising out of the day-to-day activities of the business of government. Unless a governmental entity can demonstrate that when it exercised its judgment, it genuinely could have considered and balanced factors supported by social, economic, or political policies, we will not recognize the discretionary function immunity. Graber, 656 N.W.2d at 165.

Applying this standard to the present case, we think the district court was correct in concluding Mercado and the State were entitled to immunity under the discretionary function exception. Our review of the record reveals the university had a policy to continue the normal hours of operation for the library during periods of severe weather. The purpose of keeping the library open was to afford the maximum opportunity for students and staff to utilize the library facilities. Keeping the library open furthered the public policy of providing the best college education to its students at a reasonable cost. Persons who desired to use the library for studying or research needed to count on the fact the library would be available to them during its normal hours of operation, except when it would be impossible to keep it open those hours.

Mercado’s decision not to close the library was consistent with the university’s policy to keep the library open during periods of severe weather. Although she did have the authority to close the library if the conditions made it impossible to keep it open, she considered and balanced the same factors used by the university when it formulated its policy. Before Mercado made the decision to keep the library open, she queried the staff on how many persons were using the library facilities. She also ascertained whether there would be sufficient personnel to staff the library if it remained open. She then weighed the number of persons using the library, the adequacy of the staff, and the knowledge that if the weather conditions deteriorated further -she could have closed the library against the weather conditions as reported to her by her staff. Balancing all these considerations, she made the .decision to keep the library open during its normal hours of operation in spite of the weather and allow the faculty, staff, and students to make their own decision as to whether they wanted to remain in the library that evening. People who were not in the library at the time of Mercado’s decision were free to come to the library to study or find an alternate place of study if they felt the weather prohibited them from making the trip to the library. People in the library were free to leave the library upon learning of the weather condition from other students, weather reports available to the users on the internet, or by looking outside and observing the weather conditions first hand. The evidence confirms people entered and exited the library, without incident, after Mercado made the decision to keep the library open.

Thus, Mercado not only could have considered and balanced the factors supported by public policy, but did engage in the required public policy analysis before deciding to continue the normal hours of operation for the library during periods of severe weather. Under these circumstances, Mercado and the State are entitled to immunity for keeping the library open that evening under the discretionary function exception.

V. Did the District Court Err in Instructing the Jury?

The district court instructed the jury on the issue of the State’s fault on Anderson’s premises liability claim as follows:

The plaintiff must prove all of the following propositions:
1. The defendant knew or in the exercise of reasonable care should have known of a condition on the premises and that it involved an unreasonable risk of injury to a person in the plaintiffs position.
2. The defendant knew or in the exercise of reasonable care should have known:
a.the plaintiff would not discover the condition,
OR
b the plaintiff would not realize the condition presented an unreasonable risk of injury,
OR
c. the plaintiff would not protect herself from the condition.
3. The defendant was negligent in:
a. failing to use reasonable care to determine a hazardous condition at the entrance/exit to the Rod Library.
OR
b. failing to make the Rod Library entrance/exit reasonably safe after it knew of a hazardous condition.
OR
c. failing to give warning of a hazardous condition to the entrance/exit of the Rod Library and the risks involved in exiting the building.
4. The negligence was a proximate cause of the plaintiffs damage.
5. The nature and extent of damage.
If the plaintiff has failed to prove any of these propositions, the plaintiff is not entitled to damages. If the plaintiff has proved all of these propositions, then you will consider the defense of comparative fault as explained in Instruction No. 17.

See Wieseler v. Sisters of Mercy Health Corp., 540 N.W.2d 445, 450 (Iowa 1995).

Anderson objected to the instruction and claimed the court should have instructed the jury that the possessor of land must exercise reasonable care under all the circumstances existing at the time and place of the injury for the protection of lawful entrants. In making this objection and requesting an instruction defining the possessor’s duty in terms of reasonable care, Anderson relied on Sheets v. Ritt, Ritt, & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998). The district court overruled the objection on the ground the instruction properly instructed the jury under the present state of the law.

The court, being evenly divided on the jury instruction issue, declares the decision of the district court on this issue is affirmed by operation of law. See Iowa Code § 602.4107 (2003).

VI. Disposition.

We agree with the district court that Mercado and Anderson are immune from liability under the discretionary function exception for failing to close the library due to the weather conditions. The court, being evenly divided on the jury instruction issue, declares the decision of the district court on this issue is affirmed by operation of law.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

STREIT, J., concurs specially and LARSON, J., takes no part.

STREIT, Justice

(concurring specially).

I concur in the result concerning the discretionary function immunity issue but write separately. I would not reach the discretionary function immunity issue because the defendants did not have a duty to close the library nor has proximate cause been shown. Although the majority rightly does not reach the duty or proximate cause issues because the defendants have not preserved them for our review, this case does not endorse the proposition that a premise open to the public, such as a library, shopping center, or movie the-atre, must close its doors lest someone coming or going suffers a mishap. See Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 489 (Iowa 2003) (setting forth basic error preservation principles).

      . Carter, Ternus, and Cady, JJ., would affirm the decision of the district court on the jury instruction issue; Lavorato, C.J., and Streit, and Wiggins, JJ., would reverse the decision of the district court on the jury instruction issue.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    Chad M. BERTE, Individually, and as Administrator of the Estate of Nicole Berte, Deceased, and as Guardian and Conservator of Bryan Berte, A Minor, Appellee, v. Randy Lee BODE, and Pep’s, Inc., Appellant.
    No. 03-1147.
    Supreme Court of Iowa.
    Feb. 11, 2005.

      Daniel E. Dekoter of Dekoter, Thole & Dawson, P.L.C., Sibley, for appellant.
    Conrad F. Meis of Buchanan, Bibler, ' Buchanan & Gabor, Algona, for appellee.
   LAVORATO, Chief Justice.

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. We granted the defendant’s motion for interlocutory appeal. We affirm the decision of the district court and remand for further proceedings.

I. Scope of Review.

We recently summarized our rules concerning motions for summary judgment in Luttenegger v. Conseco Financial Servicing Corp.:

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. There is no fact issue if the only dispute concerns the legal consequences flowing from the undisputed facts. Our review is therefore limited to whether a genuine issue of material fact exists and whether the district court correctly applied the law.

671 N.W.2d 425, 431 (Iowa 2003) (citations omitted).

II. Background Facts and Proceedings.

The following facts are undisputed.

Pep’s Inc. [hereinafter Pep’s] is a liquor licensee under Iowa Code chapter 123. On the evening of November 17, 2000 and into the early morning hours of November 18, Randy Lee Bode and Nicole Berte were patrons at Pep’s. Between 1:30 and 2:00 a.m., Nicole agreed to give Bode a ride home in her vehicle.

On the evening in question, employees of Pep’s sold and served alcoholic beverages to Bode, and as a result Bode became intoxicated. Some time after the two left Pep’s, Bode raped Nicole and strangled her to death. As a result of this incident, which took place away from Pep’s, the State initially charged Bode with first-degree murder and first-degree sexual abuse. Eventually, however, Bode pled guilty to voluntary manslaughter and second-degree sexual abuse.

On November 18, 2002, Chad M. Berte, Nicole’s husband, individually, and as administrator of the estate of Nicole Berte, and as guardian and conservator of Bryan Berte, a minor, filed a two-count petition against Bode and Pep’s. Bryan is Nicole’s son.

The first count of the petition alleges assault and battery and wrongful death against Bode. The second count alleges a dramshop action against Pep’s pursuant to Iowa Code section 123.92 (2001), and attached to the petition is a notice of intention to bring such action. The notice informs Pep’s of Chad Berte’s intention to file a dramshop action'in his capacity as guardian and conservator for Bryan Berte, a minor. 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. Iowa Code § 123.93. No notice was filed on behalf of Chad Berte individually. Nor was the time period extended for any of the reasons listed in section 123.93. Therefore, the dramshop claim is solely for Bryan Berte [hereinafter Berte].

Later, 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 states that Bode was generally a nice guy, however, he “became more violent and aggressive when drunk.”

Following a hearing, the district court overruled the motion. Thereafter, we granted Pep’s application for interlocutory appeal.

III. Issue.

Pep’s contends on appeal as it did in the district court that as a matter of law the sale and service of liquor to a person is not a proximate cause of that person’s later act of intentional murder. 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 argues, it should, as a matter of law, be relieved of liability in this case. The district court, Pep’s further argues, erred in concluding otherwise.

IV. Analysis.

A. Background. According to one writer,

[a]t 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.

Richard Smith, Note, A Comparative Analysis of Dramshop Liability and a Proposal for Uniform Legislation, 25 J. Corp. L. 553, 555 (2000); see also Slager v. HWA Corp., 435 N.W.2d 349, 351 (Iowa 1989).

Like a number of states, Iowa passed what is commonly referred to as a dram-shop statute. Slager, 435 N.W.2d at 351. 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. Id. One of the earliest statutes was before this court in Bistline v. Ney Bros., 134 Iowa 172, 111 N.W. 422 (1907). The statute in question provided:

Every wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication ... shall have a right of action in his or her own name against any person who shall, by selling or giving to another contrary to the provisions of this chapter any intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages....

Iowa Code Ann. § 2418 (1897) (emphasis added).

The italicized language “by any intoxicated person” remains in our present day statute. Compare Iowa Code Ann. § 2418 (1897), with Iowa Code § 123.92 para. 1 (2001). The italicized language “in consequence of the intoxication” has been replaced by similar language: “resulting from the intoxication of a person.” Id.

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 per-mittee or licensee may establish as an affirmative defense that the intoxication did not contribute to the injurious action of the person.

Iowa Code § 123.92 para. 1 (2001).

B. Causation in fact versus proximate cause. In Bistline, the court explained the meaning of “by any intoxicated person” and “in consequence of the intoxication,” an explanation that is still valid under our present day statute. “By any intoxicated person” is the phrase that controls our decision under the facts of this case. Because both phrases relate to the concept of causation, we think it would aid our analysis to first discuss that concept before undertaking to explain the difference between “by any intoxicated person” and “in consequence of the intoxication.”

Causation has two components: “(1) the defendant’s conduct must have in fact caused the plaintiffs 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).” Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996). We apply a “but-for” test to determine whether the defendant’s conduct was a cause in fact of the plaintiffs harm. Id. at 817. Under that test,

the defendant’s conduct is a cause in fact of the plaintiffs harm if, but-for the defendant’s conduct, that harm would not have occurred. The but-for test also implies a negative. If the plaintiff would have suffered the same harm had the defendant not acted negligently, the defendant’s conduct is not a cause in fact of the harm.

Dan B. Dobbs, The Law of Torts § 168, at 409 (2000) (footnote omitted) [hereinafter Dobbs]; accord Gerst, 549 N.W.2d at 815.

The difference between causation in fact and proximate cause has been described this way:

Proximate cause requirement. To prevail in a negligence action, the plaintiff must bear the burden of showing that the defendant’s negligent conduct was not only a cause in fact of the plaintiffs harm, but also a proximate or legal cause.
Function in limiting scope of responsibility. Proximate cause rules are among those rules that seek 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. Judicial decisions about proximate cause rules thus attempt to discern whether, in the particular case before the court, the harm that resulted from the defendant’s negligence is so clearly outside the risks he created that it would be unjust or at least impractical to impose liability. The proximate cause issue, in spite of the terminology, is not about causation at all but about the appropriate scope of responsibility. The issue does not arise until negli gence and causation in fact have been ■proven.

Dobbs, § 180, at 443 (emphasis added to text) (footnotes omitted); accord Gerst, 549 N.W.2d at 817. Thus, as Dobbs makes clear, causation in fact — a fact question— must be shown before the court ever reaches the question of proximate cause— a legal question.

C. Injurious acts caused by an intoxicated person. Returning to Bist-line, this court made clear that 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. This is made clear in the following passage from Bistline:

[Tjhis statute creates a new right of action, and, to sustain such action, the person injured is not required to establish all the elements of an injury actionable at common law. It is enough if the facts alleged and proven include all the elements which the statute upon reasonable and fair construction may be said to prescribe.... The liability thus created is to every person who is injured in person or in property or in means of support “by any intoxicated person or in consequence of the intoxication of any person.” In other words, if the injury is inflicted by one who is intoxicated, the statute charges a liability for damages upon him who wrongfully supplied such person with liquor producing the intoxication. If a plaintiff, in an action of this kind, is to be held to establish immediate and proximate relation between the defendant’s wrong and her injury, the statute has created no new right, for it is a general rule, as old as the common law, that every person is liable in damages for injuries directly and proximately resulting to another from his tort. The very purpose of the statute is to extend such liability to include injuries which, under the common law, would be held too remote.

Id. at 177-79, 111 N.W. at 424 (emphasis added); accord Walton v. Stokes, 270 N.W.2d 627 at 628-29 (Iowa 1978) (plaintiff need not prove the serving of intoxicating liquor was proximate cause of his injuries; plaintiff was shot by intoxicated patron to whom dramshop defendant served liquor); R.L. Brabson, Comment, Liability of Tav-emkeeper Under Civil Liability Acts for Injuries Resulting from the Intoxication of a Patron — Question of Causation, 4 Vill. L.Rev. 575, 582 (1959) (plaintiff need not show the intoxication was the proximate cause of the injury resulting from the affirmative act of the intoxicated person; affirmative acts may be direct blows or assaults or injuries caused by reckless driving of the intoxicated person) [hereinafter Brabson].

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. Bistline, 134 Iowa at 184, 111 N.W. at 426; see also Gremmel v. Junnie’s Lounge, Ltd., 397 N.W.2d 717, 721 (Iowa 1986). 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”).

D. Injuries in consequence of the intoxication or resulting from the intoxication. The former (injuries in consequence of the intoxication) relates to the statute under consideration in Bistline, and the latter (injuries resulting from the intoxication) relates to the present statute. Our analysis is the same under either version.

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. Bistline, 134 Iowa at 184, 111 N.W. at 426; accord Hayward v. P.D.A., Inc., 573 N.W.2d 29, 31 (Iowa 1997) (bar’s conduct in serving alcohol to intoxicated patron was not proximate cause of police officer’s death; police officer was killed when struck by another vehicle while performing collision-related duties in connection with accident caused by intoxicated patron; case pled and treated as injuries resulting from the intoxication of the patron); Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 352 (Iowa 1991) (tavern’s conduct in serving beer tó allegedly intoxicated person was not proximate cause of injuries suffered by accident victims who were injured in collision with pickup truck owned by intoxicated patron but driven by another person to whom patron had negligently entrusted vehicle; case pled and treated as injuries resulting from the intoxication of the patron); Walton, 270 N.W.2d at 628 (contrasting injuries caused by intoxicated person with injuries resulting from the intoxication of the patron); Brabson, 4 Vill. L.Rev. at 584 (“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.”).

E. Application of the 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. In other words, Pep’s had to establish as a matter of law that Bode’s intoxication was not the cause in fact of his injurious actions.

Pep’s pled as an affirmative defense that Bode’s intoxication was not the proximate cause of his actions that led to Nicole Berte’s death. Pep’s amplified this defense in its memorandum in support of its motion for summary judgment as follows: As a matter of law the sale and service of liquor to Bode was not a proximate cause of Bode’s later act of intentional murder. Rather, the intentional act of murder was a superseding intervening cause that broke the causal link between the intoxication and Bode’s later injurious actions. This defense is clearly a subset of proximate cause. We made that clear in Hayward:

We have held that a defendant’s conduct is not a proximate cause of a plaintiffs harm if it is superseded by later-occurring independent forces or conduct. To conclude that an event or conduct constitutes a superseding cause, the court must find that “the later-occurring event is such as to break the chain of causal events between the actor’s [conduct] and the plaintiffs injury.” Such a finding prevents a finding of proximate cause even when the actor’s conduct is found to be a cause-in-fact of the plaintiffs harm. When a superseding cause is found, the law considers that cause “to be the effective harm, and relieves the defendant from liability for the earlier negligent act.”

573 N.W.2d at 32 (alteration in original) (citations omitted).

Proximate cause is not an issue, when, as here the injurious action was caused by the intoxicated person. Moreover, Pep’s pled no affirmative defense and made no showing as a matter of law that pursuant to section 123.92 paragraph 1 the intoxication did not in fact contribute to Bode’s injurious actions. For these reasons we conclude the district court correctly denied Psp’s motion for summary judgment.

Y. Disposition.

Because we conclude that the district court correctly denied Pep’s motion for summary judgment, we affirm its decision and remand the case for further proceedings.

AFFIRMED AND CASE REMANDED.


author: PAGE, Justice.

text:
    Jon E. QUICK, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-1393.
    Supreme Court of Minnesota.
    Feb. 24, 2005.
    Jon E. Quick, Bayport, MN, pro se appellant.
    Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN, Thomas A. Opheim, Norman County Attorney, Ada, MN, for respondent.
   OPINION

PAGE, Justice.

Jon E. Quick was convicted of first-degree premeditated murder for the killing of Justin Mueller and sentenced to life in prison. State v. Quick, 659 N.W.2d 701 (Minn.2003). The facts underlying Quick’s conviction can be found in our decision on Quick’s direct appeal. Id. In that appeal, Quick raised a number of claims, including ineffective assistance of counsel based on his counsel’s failure to obtain all necessary documents and failure to pursue a medical defense. Id. at 717. We denied Quick’s claims and affirmed his conviction. Id. Quick subsequently brought a petition for postconviction relief, claiming the following as newly discovered evidence: (1) recently attained evidence proving his attendance at a parenting class on the evening of the murder that corroborated his testimony as to his whereabouts that evening; (2) documentation showing his fluctuating blood sugar levels the day of the murder; and (3) evidence of his upbringing in a religious sect. With respect to items one and two, Quick argues that the evidence supports a claim of ineffective assistance of counsel based on his counsel’s failure to pursue all necessary documents and a medical defense. With respect to item number three, he claims that the religious sect evidence is a mitigating factor for the charge of first-degree premeditated murder. The post-conviction court summarily denied the petition. We affirm.

We review a postconviction court’s denial of relief for abuse of discretion. Perry v. State, 595 N.W.2d 197, 200 (Minn.1999). A postconviction court “may summarily deny a petition [for postconviction relief] when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.” Minn.Stat. § 590.04, subd. 3 (2004). Further, in State v. Knaffla, we held that once a direct appeal has been taken, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for posteonvietion relief.” 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). As we noted in King v. State, 649 N.W.2d 149, 156 (Minn.2002), Knaffla also bars claims that should have been known at the time of direct appeal. A postconviction court may, however, hear and consider a claim that was previously known but not raised (1) if the claim presents a novel legal issue or (2) if fairness requires review of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal. See Greer v. State, 673. N.W.2d 151, 155 (Minn.2004).

It is not clear from Quick’s postconviction petition whether his claims of newly-discovered evidence relating to Ms attendance of the parenting class and documentation of his fluctuating blood sugar levels on the day of the murder present the same issues raised in Quick’s ineffective assistance of counsel claims on direct appeal. To the extent that the issues are the same issues, Quick’s claims are barred by Minn. Stat. § 590.04, subd. 3, and Knaffla. To the extent that the claims raised are different than the ones raised on direct appeal, we conclude that Quick either knew of or should have known of the claims at the time of his direct appeal and they are therefore barred by Knaffla. Neither exception to the Knaffla bar applies.

We also conclude that, Quick’s claim of newly discovered evidence of his upbringing in the religious sect fails. It is clear from the record that Quick’s alleged upbringing in the religious sect was known to him and his counsel at the time of Quick’s trial. Therefore, the evidence does not qualify as newly discovered. See Wieland v. State, 457 N.W.2d 712, 714 (Minn.1990). Moreover, because the issues related to his cult upbringing were known, or should have been known to him at the time of trial but were not raised on direct appeal, they are barred by Knaffla. As with his ineffective assistance of counsel claims, neither exception to Knaffla applies.

Therefore, we conclude that the postcon-viction court did not abuse its discretion and affirm the court’s denial of relief.

Affirmed.

      . The state moved this court to strike the appendix to Quick's brief to this court from the appellate record. Because the claims raised in Quick’s petition are barred by Knaff-la, we have not considered the materials in the appendix to his brief. Therefore, we deny the state’s, motion as moot.


author: HANSON, Justice. ANDERSON, PAUL H. MEYER, Justice

text:
    Tanya L. VARDA, Relator, v. NORTHWEST AIRLINES CORP., and Liberty Mutual Insurance Co., Respondents.
    No. A04-1707.
    Supreme Court of Minnesota.
    Feb. 24, 2005.

      Thomas R. Longfellow, Stacie R. McBride-Cox, St. Paul, MN, for Relator.
    Kathy A. Endres, Susan M. Stepaniak, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for Employer and Insurer-Respondents.
   OPINION

HANSON, Justice.

. This workers’ compensation matter comes before this court by certiorari upon the relation of employee Tanya L. Varda to review a. decision of the Workers’ Compensation Court of Appeals (WCCA), reversing the compensation judge’s award of retraining benefits under MinmStat. § 176.102 (2004). Although the compensation judge awarded benefits based on a 4-year program at the College of St. Scho-lastica that would lead to a bachelor of arts degree in nursing, the WCCA substituted an award of retraining benefits based on a 2-year program at Hibbing Community College that would lead to an associate in science degree in nursing. Varda asserts that the compensation judge’s award was supported by substantial evidence and that it was error for the WCCA to modify it. We affirm the decision of the WCCA.

Tanya Varda is a 30-year-old high school graduate who obtained a 2-year degree in sales and marketing from Range Technical College. She is married and has three children ranging in age from approximately 1 year to 6 years old. She lives in the Chisholm/Hibbing area with her family, and her stated intent is to stay in that area to raise her children.

In March 1996, Varda started working as a reservations specialist at a Northwest Airlines reservations center in Chisholm. The nature of her work required continuous computer keyboarding. For at least 9 months each year, she worked fulltime and earned $12.73 an hour. For no more than 3 months each year, she worked as a substitute supervisor, earning $19.86 an hour.

As a result of her employment, Varda sustained compensable injuries in the nature of bilateral carpal tunnel syndrome with ulnar nerve involvement that culminated in disability as of August 1, 2000. She has permanent work restrictions of no more than 20 minutes of keyboarding per hour, no repetitive use of her hands and wrists and no repetitive extension of her arms. She is limited from lifting 20-25 pounds frequently and 50 pounds occasionally. Because Northwest Airlines was unable to accommodate these work restrictions, Varda’s employment was terminated in March 2002.

On February 20, 2003, Varda proposed a retraining plan consisting of 4 years of college eoursework at the College of St. Scholastica in Duluth, from September 1, 2003, through May 31, 2007, leading to a bachelor of arts degree in nursing. The estimated cost was $144,388 ($80,828 in tuition, $5,000 in books/supplies, $34,560 in mileage, and $24,000 in custodial daycare).

' Varda also considered obtaining a 2-year degree from the Hibbing Community College that would qualify her to seek licensure as a registered nurse (RN). The only formal retraining plan submitted for consideration was the 4-year plan through St. Scholastica, but there was evidence that the estimated cost of the 2-year program at Hibbing Community College would be $9,500 ($7,200 in tuition, $1,500 in books/supplies, and $800 in miscellaneous items). Varda decided to seek approval for the 4-year degree.

At the hearing on the retraining dispute, Kandise Garrison, a vocational expert whom Varda retained to assess the proposed retraining plan, testified that a bachelor’s degree would qualify Varda for a greater number of positions. She said that a 2-year program trains staff nurses, which represent 60% of the positions available for nurses, whereas a 4-year degree is required for the other 40% of nursing positions. Garrison testified that Varda had some work experience as a manager, and that a 4-year degree is required to secure a manager’s position in nursing. Finally, she testified that St. Scholastiea placed 100% of its nursing graduates with a typical starting salary of $45,000. Garrison compared this to Varda’s earning capacity before her disability, but only with respect to her occasional supervisory work, which would have yielded about $40,000 a year had the work been available for a full year.

Garrison did not explicitly testify that the 2-year degree would be an unsuitable retraining program. She agreed that Var-da likely would succeed at completing the Hibbing Community College program and obtaining employment. She stated that the starting wage for an RN with a 2-year degree would be $20.55 an hour.

Garrison did testify that Varda’s work restrictions would preclude her from performing some of the nursing jobs for which a 2-year degree is sufficient. She stated that some nursing homes and hospitals require nurses to be able to lift more than 50 pounds, and said “I think she is precluded from that very small number of jobs that would require 60 pounds.” She also testified that Varda would be precluded from nursing jobs that “require people to key in data all day or talk on the phone all day and basically desk jobs or data entry jobs, claim examiner jobs, * * * bill review jobs, * * She did not state what percentage of nursing jobs require that activity.

Jan Lowe, the vocational expert for Northwest and its insurer, testified that the 2-year program at Hibbing Community College was more appropriate. She said that her labor market survey showed little difference in terms of hourly earnings “for a 2-year versus a 4-year RN.” Lowe said Hibbing Community College offers “a shorter program that would essentially get her to the same end, to an RN job, as would St. Scholastiea.” In looking at the total retraining plan, Lowe testified that it was “more economically reasonable to do the 2-year versus the 4-year plan, which requires a great deal of travel to and from Duluth without much cost benefit at the end of the program.” Lowe noted that a number of health care facilities hired nurses with 2-year degrees who needed work accommodations.

The compensation judge approved Var-da’s retraining request, finding the -L-year program would “substantially increase her RN employment options”; the 2-year program would permit Varda to “perform the duties of a staff nurse, duties generally more taxing”; and “approximately 40% of all nursing positions are non-staff positions requiring a 4-year BA degree.” The compensation judge summarized his conclusions as follows:

In spite of the substantial additional costs to be incurred!,] the Court finds it more reasonable, more appropriate for the employee to pursue the 4-year BA degree through the College of St. Scho-lastica rather than the 2-year alternative at Hibbing Community College. As indicated in the Findings above, the employee is faced with a substantial delay if in fact she were to attempt to enter the 2-year program at Hibbing Community College. Further!,] as indicated by Ms. Garrison, testifying on behalf of the employee, in all likelihood [the] 2-year program would require an additional half-year of schooling. Of more significance, however, is that without a BA degree, without the 4-year program!,] the employee is not eligible to become a public health nurse or a school nurse. In addition[,] without that 4-year degree the employee in all likelihood would not be eligible to apply for or hold a supervisory nurse position — a position which generally is less physically taxing than the duties performed by a staff nurse. This is of more than passing importance in light of the employee’s rather substantial physical restrictions.

The compensation judge did not specifically address how Varda’s restrictions might affect her qualifications for the 60% of nursing jobs that did not require a 4-year degree or determine that the 2-year program would not return Varda to the economic status she would have enjoyed without the disability.

On appeal, the WCCA reversed, concluding that the record as a whole did not support the award. The WCCA explained:

Certainly a 4-year degree may be “better,” in terms of the number of employment opportunities, than the proposed 2-year alternative. Some nursing jobs do in fact require a Bachelor’s degree, and some other nursing jobs may.be inconsistent with the employee’s lifting restrictions. However, in this case, the record simply fails to establish that the employee would gain any significant economic advantage by attending the 4-year program sufficient- to outweigh the immense additional cost. This is especially true given that it is essentially uncontroverted that the employee- will easily be able to obtain physically suitable work, as a[n] RN with a 2-year degree, at 1a wage comparable to a 4-year RN and at a wage that equals or exceeds her pre-injury wage, and given that there is no evidence that the employee can reasonably expect to obtain work in one of her areas of special interest.

Varda v. Northwest Airlines Corp., No. WC04-132, 2004 WL 2089585, at *6 (Minn. WCCA Aug. 11, 2004) (slip op. at 7). The WCCA concluded:

Because the record as a whole does not support the conclusion that the much more expensive St. Scholástica nursing program is reasonably required to restore the employees lost earning capacity, we reverse the judge’s approval of the employee’s proposed retraining plan and substitute approval of the alternative 2-year Hibbing Community College RN program. ■'

Id.

When the WCCA reviews a compensation judge’s findings of fact, it will affirm .those findings unless they are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” . Minn.Stat. § 176.421, subd. 1(3) (2004); see also Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 61 (Minn.1984). Although the WCCA is required to look at all the evidence, it must give due weight to the compensation judge’s opportunity to evaluate the credibility of the witnesses and must uphold findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn. Id. at 59-60.

But when the WCCA reviews a compensation judge’s decision on a question of law, it need give no deference to conclusions of the compensation judge and reviews those conclusions de novo. See, e.g., Kubat v. St. Louis County, 2003 WL 22170729, at *3 (Minn. WCCA Sept. 5, 2003); Megarry v. Megarry Bros., 55 Minn. Workers’ Comp. Dec. 276, 279 (WCCA 1996). In Kubat, the WCCA reiterated that a question that rests on the application of a statute to essentially undisputed facts is a question of law. Kubat, 2003 WL 22170729, at *3. We have said that an employee’s entitlement to retraining benefits “is a mixed question of law and fact.” Wirtjes v. Interstate Power Co., 479 N.W.2d 713, 715 (Minn.1992). But we also have recognized that the “terminal question” of an analysis of the evidence' — -“whether the evidence has such substance as to support the inference or deduction implicit in and necessary to sustain the affirmative conclusion” — generally is a question of law. Tillman v. Stanley Iron Works, 222 Minn. 421, 426, 24 N.W.2d 903, 905 (1946) (quoting Susnik v. Oliver Iron Mining Co., 205 Minn. 325, 331, 286 N.W. 249, 252 (1939)). As discussed below, we conclude that the terminal question here — which of the two plans is most appropriate and most reasonable— rests on the application of the workers’ compensation rehabilitation statute, Minn. Stat. § 176.102, to essentially undisputed facts and thus involves a question of law that the WCCA, and ultimately this court, reviews de novo.

When comparing one retraining program with another, we consider the sufficiency of the evidence while examining the purpose for retraining benefits. The purpose of retraining benefits is to return the employee “to his or her established preinjury employment status and to dis-eontinu[e] workers’ compensation benefits.” Wirtjes, 479 N.W.2d at 715. Thus, retraining is intended to return the employee to a job that produces an economic status as close as possible to what the employee would have enjoyed without disability. This, of course, does not require precision, and a job that produces a “higher economic status than would have occurred without [the] disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment.” Minn.Stat. § 176.102, subd. 1(b) (2004). The term “necessary” means that which “will materially assist the employee in restoring his impaired capacity to earn a livelihood.” Wilson v. Crown Cork & Seal, 503 N.W.2d 472, 475 (Minn.1993) (quoting Norby v. Arctic Enter., Inc., 305 Minn. 519, 521, 232 N.W.2d 773, 775 (1975)).

According to decisions of the WCCA, the factors considered in determining eligibility for retraining include: (1) the reasonableness of retraining compared to returning the employee to work with the employer or through job placement activities; (2) the likelihood of the employee succeeding in a formal course of study given the employee’s abilities and interests; (3) the likelihood that retraining would result in a reasonably attainable employment; and (4) the likelihood that retraining would produce an economic status as close as possible to that which the employee would have enjoyed without the disability. Poole v. Farmstead Foods, 42 Minn. Workers’ Comp. Dec. 970, 978 (WCCA 1989). And the WCCA has said that when the employer and its insurer propose an alternative retraining plan, the compensation judge is to compare the plans by evaluating each plan in light of the Poole factors, considering the duration of the programs and the relative costs and effectiveness of each in returning the employee to an economic status as close as possible to that which would have been enjoyed without the disability. Kunferman v. Ford Motor Co., 55 Minn. Workers’ Comp. Dec. 464, 467-68 (WCCA 1996).

In this context, we conclude that the evidence is essentially undisputed that both the 2-year and 4-year retraining programs would provide a job that would return Varda to an economic status higher than she would have had without the disability. Garrison’s testimony supports the conclusion that the 4-year program would be better, but her testimony does not support the conclusion that the 2-year program would not be appropriate or reasonable. Further, to the extent that Garrison based her preference for the 4-year program on the opportunity it would present for Varda to obtain management positions, it was without foundation in the record because Varda’s own testimony showed that she did not have a management position prior to her disability. Her position was fundamentally data entry, with an opportunity to substitute as a supervisor for no more than' one-fourth of the year. Viewed this way, the prospect of earning $20.55 an hour with a 2-year nursing degree would be a significant improvement to Varda’s prior ability to earn $12.73 an hour for 9 months and $19.86 an hour for 3 months of each year, which combine to produce an annualized wage of $14.52 an hour.

The criticai question then becomes whether the more costly 4-year program is “necessary to increase the likelihood of reemployment” within the meaning of Minn.Stat. § 176.102, subd. 1(b). Becáuse the undisputed facts show that the 2-year program will restore Varda to an economic status higher than she enjoyed before the disability, we view that -question as one of law and conclude that the fact that the 4-year program could be even more beneficial than the 2-year program does not establish that it is “necessary.” To the contrary, we agree with the WCCA’s conclusion that, because both retraining programs are appropriate and reasonable, the deciding factor in determining which program is necessary becomes the cost. As the WCCA noted:

However, in this case, the record simply fails to establish that the employee would gain any significant economic advantage by attending the 4-year program sufficient to outweigh the immense additional cost. This is especially true given that it is essentially uncontrovert-ed that the employee will easily be able to obtain physically suitable work, as a[n] RN with a 2-year degree, at a wage comparable to a 4-year RN and at a wage that equals or exceeds her pre-injury wage, and given that there is no evidence that the employee can reasonably expect to obtain work in one of her areas of special interest.

Affirmed.

ANDERSON, PAUL H.

(dissenting).

DISSENT

I respectfully dissent. Admittedly, this is a close case and, if I were the original trier of fact, I might well reach the same conclusion as the WCCA and the majority. But this case is before us on appellate review, so we are restrained by the appropriate standard of review. The WCCA is to affirm the findings of fact of a compensation judge unless the findings are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn.Stat. § 176.421, subd. 1(3). Here, the record shows that there is substantial evidence to support the compensation judge’s decision and therefore his decision is not clearly erroneous and should be affirmed.

In this case, as in most workers’ compensation cases, there was conflicting expert testimony, and for that reason the WCCA and the majority have erred when they either explicitly or implicitly conclude that most of the facts are undisputed. Garrison testified and the compensation judge concluded that Varda had specific physical limitations that would place some limitations on her employability as an RN. Specifically, the compensation judge concluded:

As indicated in the Findings above, the employee is faced with a substantial delay if in fact she were to attempt to enter the 2-year program at Hibbing Community College. Further[,j as indicated by Ms. Garrison, testifying on behalf of the employee, in all likelihood [the] 2-year program would require an additional half-year of schooling. Of more significance, however, is that without a BA degree, without the 4-year program[,] the employee is not eligible to become a public health nurse or a school nurse. In addition[,] without that 4-year degree the employee in all likelihood would not be eligible to apply for or hold a supervisory nurse position — a position which generally is less physically taxing than the duties performed by a staff nurse. This is of more than passing importance in light of the employee’s rather substantial physical restrictions.

Moreover, I believe that the WCCA erred in its role as a reviewing court when it substituted its findings for those of the compensation judge when it found “that it is essentially uncontroverted that [Varda] will easily be able to obtain physically suitable work, as a[n] RN with a 2-year-degree” (emphasis added). The record shows that it was disputed whether, given her physical limitations, Varda could obtain physically suitable employment after completing the 2-year program at Hibbing Community College.

Given our standard of review, I would reverse the WCCA and affirm the decision of the workers’ compensation judge.

MEYER, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.


author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Yvonne B. MOORE, a Minnesota Attorney, Registration No. 74895.
    No. A04-215.
    Supreme Court of Minnesota.
    Feb. 24, 2005.

      Kenneth L. Jorgenson, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Appellant.
    Mark C. Stafford, Burnsville, MN, for Respondent.
   OPINION

PER CURIAM.

Respondent Yvonne B. Moore, a licensed Minnesota attorney since 1963, practices primarily in the area of family law. This attorney discipline case arose from a February 10, 2004, petition filed by the Director of the Office of Lawyers Professional Responsibility alleging that Moore violated Minn. R. Prof. Conduct 1.1 (competence), 1.3 (diligence), 1.4 (communication), and 8.4(d) (conduct prejudicial to the administration of justice) when she did not attend a hearing she scheduled for a client, failed to inform the court she would not attend, did not attempt to obtain a continuance, advised her client that he need not appear, and failed to apprise her client of the potential consequences of not attending. The matter is now before us on the referee’s report and recommendation that Moore be publicly reprimanded and placed on supervised probation for 2 years subject to conditions. We agree with the referee’s recommendation and order that Moore be publicly reprimanded and placed on supervised probation for a period of 2 years.

In both her brief and her oral argument to this court, Moore challenged the referee’s findings of fact. However, Moore did not order a transcript of the referee’s findings, conclusions, and recommendations. Therefore, under Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR), the referee’s findings of fact and conclusions of law are conclusive. Those findings are summarized below.

In September 2001, a client retained Moore to represent him in marital dissolution proceedings. Although Moore and the client did not enter a formal retainer agreement, Moore’s letter of engagement indicates that her representation “includes a hearing, but not possible trial.” In addition, in a letter dated September 17, 2001,' to opposing counsel, Moore states, inter alia: “At the present time I represent [the client] in his dissolution * * * communication of any sort should be only thru [sic] me.”

In October 2001, Moore prepared and signed a “Notice and Motion” to modify visitation. She gave these documents to her client, who, without Moore’s direct knowledge, filed them with the Ramsey County District Court. Based on Moore’s signature on the filed document, district court administration regarded her as the attorney of record in the client’s dissolution proceeding. Moore subsequently requested that the court administrator’s office schedule a hearing regarding the filed motion. The hearing was scheduled for December 26, 2001. Moore also took part in a telephone scheduling conference with opposing counsel and the district court judge assigned to the matter. At Moore’s request, the hearing was rescheduled to February 8, 2002.

Two or 3 days before the February 8, 2002, hearing, Moore contacted opposing counsel to inform him that she would not attend the hearing because she would be out of town on that date. Moore refused opposing counsel’s request to continue the matter. On February 6, 2002, Moore telephoned her client to inform him that she would not attend the February 8, 2002 hearing. In response to the client’s inquiry regarding whether he needed to attend the hearing, Moore advised him that he did not need to attend. She did not advise him of the possible repercussions for failing to attend a hearing.

Moore did not attend the hearing and failed to seek a continuance or inform the court that she would not attend the hearing. Based on Moore’s advice, the client also did not attend the hearing. Opposing counsel prepared for and attended the hearing. As a result of the failure of Moore or her client to appear at the hearing, the court dismissed the client’s motion and ordered him to pay $540 in attorney fees incurred by the client’s wife in responding to the motion.

On February 28, 2002, Moore withdrew from representation of the client. The client obtained a conciliation court judgment in the amount of $540 against Moore for reimbursement of the attorney fees awarded against him. Moore paid the client $500 to settle the matter.

Before the referee, Moore defended her failure to appear at the February 8, 2002, hearing by arguing that her client, who was himself an attorney and who had previously represented himself at hearings in the dissolution matter, gave her permission to be absent from the hearing. Moore also denied telling the client he did not need to appear at the hearing, claiming that it was her understanding that he would appear and represent himself. Further, Moore excused her failure to notify the district court that she would be absent from the hearing by stating that, in her experience, judges in Ramsey County “don’t care” whether lawyers appear in court. She also argued that her opposing counsel “should have known” she was not representing the client. Finally, she argued that she did not believe that by taking part in the scheduling conference, contacting the court to schedule and reschedule a hearing, or signing her name on a notice of motion filed with the court meant that she was the attorney of record or that the judge or opposing counsel would rely on these representations to conclude that she was the attorney of record. The referee found these statements incredible and further found that Moore offered no evidence that she had initiated measures to prevent similar misconduct from, occurring in the future.

Moore has been disciplined on three pri- or, occasions. In June 1993, Moore was issued an admonition for demanding and receiving a $300 fee without first securing approval or consent from the Social Security Administration, failing to promptly return client property, and for non-communication with the client. In April 1995, Moore agreed to be placed on private probation for failing to place an advance fee payment into her client trust account, failing to return an unearned fee to a client, failing to provide an accounting of her billing, and failing to provide a client with a copy of a temporary restraining order. In November 1997, we affirmed a private admonition when Moore failed to attend a motion hearing, or obtain a continuance, and did not fully inform a client of the consequences of not attending a hearing. In re Panel File 96-35, 570 N.W.2d 499, 500 (Minn.1997).

The referee found that Moore’s current misconduct was similar to conduct for which she previously received an admonition and that her disciplinary history shows a pattern of misconduct. The referee concluded that Moore’s misconduct in the current case violated Minn. R. Prof. Conduct 1.3, 1.4(b), and 8.4(d) and recommended Moore be publicly reprimanded and placed on supervised probation for 2 years. The referee concluded that a violation of Minn. R. Prof. Conduct 1.1 had not been established by clear and convincing evidence.

Because the referee’s findings of fact are conclusive when no transcript is ordered, the only issue, we must resolve is the appropriate discipline to be imposed. In considering a petition for attorney discipline, we have the ultimate responsibility for determining the appropriate sanction. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). “The purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” Id. (citing In re Daffer, 344 N.W.2d 382, 385 (Minn.1984)).

We consider four factors in determining the appropriate sanction: (1) the nature of the misconduct; (2) the cumulative weight of the violations of the rules of professional conduct; (3) the harm to the public; (4) the harm to the legal profession. Id. (citations omitted). We impose disciplinary sanctions on a case-by-case basis after considering both aggravating and mitigating circumstances, as well as looking to similar cases for guidance. Id.

The discipline recommended by the referee is consistent with the discipline we have imposed in other cases. In a recent case, we approved a public reprimand and 2 years’ supervised probation where the attorney failed to act with adequate diligence in a probate matter, failed to communicate adequately with the client, failed to file probate documents by a court-ordered deadline, and failed to appear in court when ordered to do so. In re Ruhland, 689 N.W.2d 167, 167-68 (Minn.2004); see also In re Pokorny, 453 N.W.2d 345 (Minn.1990) (indefinitely suspending an attorney who, with three prior private disciplines, failed to attend three court appearances, issued an insufficient check to opposing counsel in payment of court-awarded fees, and failed to pay two judgments for law-related debts); In re Haugen, 373 N.W.2d 600 (Minn.1985) (imposing public reprimand and 2 years supervised probation where respondent failed to comply with discovery orders, failed to appear at a discovery hearing, failed to file a timely objection to a magistrate’s recommendation that his client’s claim be dismissed with prejudice, and failed to respond to probate orders of the district court); In re Mitchell, 368 N.W.2d 273 (Minn.1985) (imposing public reprimand and 2 years probation where respondent had a history of discipline and admitted to neglect and non-communication with clients).

In addition, when an attorney is before us on a disciplinary charge for a second time, we will review the discipline to be imposed in light of the earlier misconduct. In re Getty, 452 N.W.2d 694, 698 (Minn.1990). We have imposed more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined. In re Cutting, 671 N.W.2d 173, 175 (Minn.2003). We have disciplined Moore on three prior occasions. Most relevant to the current case is the 1997 admonition based on Moore’s failure to attend a motion or obtain a continuance, and her failure to fully inform the client of the consequences of not attending the hearing. In re Panel File 96-S5, 570 N.W.2d at 500. The referee found that the current misconduct was similar to the misconduct for which Moore has already been disciplined.

Most troubling to us are Moore’s assertions that because family court judges allow attorneys to appear with the client even though they had not previously been identified as counsel of record, she could reasonably conclude that a family court judge would not expect her to appear at a hearing which she scheduled as attorney of record. Equally troubling is her assertion that she “did nothing unethical at any time.” These circumstances support the imposition of the recommended discipline of a public reprimand and 2 years of supervised probation.

Accordingly, we order that respondent Yvonne B. Moore:

1. Be publicly reprimanded.
2. Be placed on supervised probation for a period of 2 years upon the following conditions:
a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within 2 weeks from the date of this opinion. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide.the Director with an inventory of active client files described in paragraph d, below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters that respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Within 30 days from the filing of this opinion, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with the probation requirements. Respondent shall provide progress reports as requested.
g. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24(a) and (b), RLPR.

So ordered.

      . Minn. R. Prof. Conduct 1.1 states: "A lawyer shall provide competent representation to a client.” Minn. R. Prof. Conduct 1.3 states: "A lawyer shall act with reasonable diligence and promptness in representing a client.” Minn. R. Prof. Conduct 1.4(b) states: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Minn. R. Prof. Conduct 8.4(d) states: "It is professional misconduct for a lawyer to:

      (d) engage in conduct that is prejudicial to the administration of justice * *