author: TERNUS, Justice.

text:
    Judith Kay GRABER, Appellant, v. CITY OF ANKENY, Iowa, Appellee.
    No. 98-1176.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Mary S. Bernabé, Des Moines, for appellant.
    Chester C. Woodburn, III, of Hansen, McClintock & Riley, Des Moines, appellee.
   TERNUS, Justice.

The appellant, Judith Graber,- was injured in an automobile accident that occurred at an intersection located within the city limits of the appellee, City of Ankeny. She brought an action against the City, which resulted in an adverse jury verdict. In her appeal, she makes several claims: (1) the court abused its discretion in admitting evidence of her settlement with the other party involved in the accident; (2) the court erroneously instructed the jury on several issues; (3) Iowa Code chapter 668 (1997) violates her rights to due process and equal protection; (4) the court erred in failing to grant the plaintiffs motion for new trial; (5) the court erred in failing to sustain her objections to the defendant’s questioning of her expert witness; and (6) the court erred in allowing the defendant’s witness to give expert testimony when he had not been designated as an expert witness. We conclude that the court’s admission of evidence of the plaintiffs settlement with a released party constitutes reversible error. Accordingly, we reverse and remand for a new trial.

I. Background Facts and Proceedings.

On the morning of July 13, 1996, the plaintiff was traveling north on State Street, south of Ankeny, Iowa, approaching the intersection of State Street and Oralabor Road, another main thoroughfare bordering the City to the south and running east and west. The speed limit on this section of Oralabor was 55 miles per hour.

The plaintiff entered the intersection of State Street and Oralabor on the green light, intending to turn left. As she did so, she was struck broadside by Kristie Allen. Allen was traveling east on Oralabor and admitted she entered the intersection on a red light. The plaintiff sustained extensive and serious injuries.

Initially, the plaintiff brought suit against Allen and against Allen’s boyfriend, Brook Hansen, who owned the car Allen was driving at the time of the accident. Allen and Hansen sought leave to file a cross-petition against the City, who, they asserted, was negligent in its operation of the traffic control signals at the intersection. Subsequently, the plaintiff amended her petition to add the City as a defendant. She alleged the City was negligent in failing to properly maintain and properly set the timing of the traffic lights at the intersection. The plaintiff asserted that the City’s improper timing of the traffic signals confused drivers because they were not allowed sufficient time to clear the intersection before cross-traffic received a green light.

Sometime after the City was joined as a defendant, the plaintiff settled with Allen and Hansen. In a pre-trial ruling, the court held that the City could introduce evidence of the settlement, but not the amount paid by Allen and Hansen. The case proceeded to trial, and the jury returned a verdict in favor of the City, finding it was not at fault. The plaintiffs post-trial motions were overruled and she filed this appeal.

II. Did the Trial Court Err in Admitting Evidence of the Settlement Between the Plaintiff and the Released Parties?

During cross-examination of Allen, the defendant elicited testimony that Allen and Hansen had been dismissed from the lawsuit “because some deal had been cut and money paid on [their] behalf.” The plaintiffs objection on the basis of lack of relevancy was overruled.

A. General principles and scope of revieiv. Irrelevant evidence is not admissible. See Iowa R. Evid. 402. The converse proposition — that relevant evidence is admissible — is not automatically true. See id. committee comment — 1983 (“Statutes', rules of procedure, constitutional and policy considerations may require the exclusion of otherwise relevant evidence.”). Even relevant evidence should not be admitted , when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury....” Iowa R. Evid. 403. Therefore, the decision to admit evidence requires a two-step inquiry: (1) is the evidence relevant? and (2) if so, is its probative value substantially outweighed by the danger of prejudice or confusion?

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 401. A determination of the probative value of relevant evidence focuses on the strength and force of the tendency of the evidence “to make a consequential fact more or less probable.” McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000). “Unfair prejudice arises when the evidence prompts the jury to make a decision on an improper basis.... ” Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997).

We review the court’s decision to admit relevant evidence for an abuse of discretion. See McClure, 613 N.W.2d at 235; see also State v. Brewer, 247 N.W.2d 205, 214 (Iowa 1976) (holding that once evidence was determined to be relevant, “trial court was obliged to exercise its discretion and determine whether its probative value was outweighed by its prejudicial effect”). An abuse of discretion occurs when “the court exercise[s] [its] discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Waits, 572 N.W.2d at 569 (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law. See id.

Not every erroneous admission of evidence requires reversal. See McClure, 613 N.W.2d at 235. Only when “a substantial right of the party is affected” is reversal warranted. Id. (quoting Iowa R. Evid. 103(a)). We presume prejudice from the admission of irrelevant evidence. See Lewis v. Kennison, 278 N.W.2d 12, 15 (Iowa 1979). Accordingly, reversal is required unless the record shows a lack of prejudice. See McClure, 613 N.W.2d at 235. Thus, despite the discretionary nature of the trial court’s decision to admit evidence, we do not hesitate to reverse “when the jury was allowed to consider plainly irrelevant and prejudicial evidence.” State v. Oppedal, 232 N.W.2d 517, 520 (Iowa 1975).

B. Legal principies governing the admission of evidence of settlement. Iowa Rule of Evidence 408 deals specifically with the relevancy of settlement evidence:

[E]vidence of ... accepting ... a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.... This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness....

Iowa R. Evid. 408. This language is taken verbatim from Federal Rule of Evidence 408. The advisory committee notes that accompanied the federal rule when it was proposed gave this explanation of the rule:

[Exclusion may be based on two grounds!:] (l)[t]he evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position ... [and] (2) ... [the] promotion of the public policy favoring the compromise and settlement of disputes.... While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person.

Fed.R.Evid. 408 advisory committee’s note; accord Miller v. Component Homes, Inc., 356 N.W.2d 213, 216 (Iowa 1984) (noting, as reasons for excluding evidence of compromise, that offer of compromise implies merely a desire for peace, not a concession of wrong doing, and public policy favoring settlement of disputes). The committee comments to the Iowa rule state that the Iowa rule is in accord with the federal rule. See Iowa R. Evid. 408 committee comment — 1983.

In McHann v. Firestone Tire & Rubber Co., the Fifth Circuit Court of Appeals reversed a trial court ruling allowing into evidence the fact that the plaintiff had settled with a third party. 713 F.2d 161, 165-66 (5th Cir.1983). The court gave the following explanation of the reasons underlying the rule:

Our concern is that the Covenant Not to Sue would have led the jury to deny [the plaintiffs] claim against Firestone based on the perception that [the third party] would not have paid the substantial sum of $27,500 if it ... were not the party at fault. Excluding evidence of the Covenant will eliminate this possible source of prejudice to [the plaintiff], and will carry out the policy of Rule 408 to encourage out-of-court settlements.... [T]he incentive for parties to settle cases involving many [parties] would be undermined if their settlement with one ... could come back to haunt them in later suits.

Id. at 166-67 (citations omitted). These reasons are equally valid under Iowa Rule of Evidence 408. See Lewis, 278 N.W.2d at 14 (“It is generally held that offers to compromise disputed claims are inadmissible because they are irrelevant and because policy considerations require their exclusion.”).

C. Application of law to present case. In the case before us, the City asserts that the evidence of settlement was relevant to Allen’s credibility. Allen testified at trial that the light turned red too fast given the speed of the cars on Oralabor. This testimony supported the plaintiffs claim that the City was negligent, as well as the plaintiffs claim that Allen had a legal excuse for being in the intersection on a red light. Thus, claims the City, evidence that Allen had settled with the plaintiff was relevant to Allen’s bias or prejudice. In addition, the City contends the evidence was necessary to prove Allen’s identity as a released party for purposes of receiving a comparative fault instruction under Iowa Code chapter 668.

1. Relevancy to bias or prejudice of Allen. In reviewing our cases dealing with the admission of evidence of settlement, it is apparent that we have strictly adhered to the principle that it is erroneous and highly prejudicial to allow such evidence into the record solely for the purpose of establishing liability, and we have been reluctant to make an exception for impeachment purposes. In Stewart v. Madison, 278 N.W.2d 284 (Iowa 1979), the plaintiff was a passenger in a car driven by Madison and was injured in a collision between Madison’s car and a train. 278 N.W.2d at 285. The plaintiff sued Madison and the railroad, but settled with Madison before trial. Id. at 293. At trial, the railroad sought to impeach the plaintiff with evidence of his settlement with Madison, asserting such evidence was relevant because the plaintiff had changed his testimony with respect to the amount of Madison’s pre-accident drinking. Id. In upholding the district court’s refusal to admit the evidence, this court stated:

The court did not limit defendant’s right to impeach [the plaintiff] on the basis of prior inconsistent statements; in fact it specifically ruled that this could be done. Inquiry as to prior inconsistent statements, if any, was permitted by the trial court; it just did not permit evidence as to the reasons for such inconsistencies. Although this latitude might be proper as to other areas of impeachment, it runs head-on in this case with the strong policy considerations favoring settlements and discouraging their use in a manner which might place a chill on settlements or settlement attempts. Under these circumstances it was not error to restrict evidence of the settlement in the manner of the trial court.

Id. (citation omitted).

A similar result was reached in Gail v. Clark, 410 N.W.2d 662 (Iowa 1987), a case, like the present one, where the evidence was alleged to be relevant to the settling tortfeasor’s bias. In this dramshop action, the convenience store defendant sought'to introduce evidence that the plaintiffs, a police officer and his wife, had settled with Clark, the drunken motorist involved in a high-speed chase resulting in the officer’s injuries. Gail, 410 N.W.2d at 671. Arguing that the settlement occurred approximately two months after Clark had given his deposition testimony, and that subsequently, at trial, Clark had retracted much of this testimony, the defendant asserted that evidence of the settlement was admissible to show bias or prejudice on Clark’s part. Id. The defendant’s “theory was that Clark’s trial testimony demonstrated an effort by him to help the [plaintiffs] at a time when it would not expose him to liability.” Id. The trial court’s refusal to allow the evidence was upheld on appeal. Id. at 672.

An enlightening discussion of the relevancy of settlement evidence to bias or prejudice is found in the Nebraska case of London v. Stewart, 221 Neb. 265, 376 N.W.2d 553 (1985). In that case, the plaintiff, London, was a passenger in an automobile driven by Stewart. London, 376 N.W.2d at 554. Stewart’s car was involved in a collision with a vehicle driven by Siecke. Id. At trial, the alleged negligence of both drivers was at issue; Stewart was claimed to be driving on the wrong side of the road and Siecke was alleged to be driving in the dark without his headlights on and possibly on the wrong side of the road. Id. at 554-55. Mrs. Siecke, who was a passenger in her husband’s car at the time of the accident, was called as a witness at trial. Id. In contradiction to her deposition testimony, where she had stated “she did not know which side of the road they were on,” Mrs. Siecke testified at trial that their car was on the right side of the road at the time of the accident. Id. at 556. Over the plaintiffs objection, the defendant, Stewart, was allowed to inquire whether, at the time of her deposition) her husband was a defendant in the lawsuit. Id. The trial court allowed the .question under the theory that it was admissible to show bias. Id. The Supreme Court of Nebraska reversed and in doing so gave the following rationale for its decision:

Assuming that such evidence constitutes evidence of compromising a claim involving the witness, it is difficult to see that such testimony could be the result of bias arising out of such compromise. We agree with the plaintiff that the questions asked of Mrs. Siecke were clearly intended to suggest that her husband had paid [the plaintiff]; therefore, it is assumed, the jury would not want to compensate plaintiff twice. • However, there must be something about the settlement of the claim against the husband of the witness that might influence her to testify falsely.
It is conceivable that at the time when the suit against her husband was still active, Mrs. Siecke might want to testify favorably to him, i.e., that he was on his own side of the road at all times. Contrariwise, once his liability was settled, other than the desire to tell the truth, she would have no reason to care on which side of the road he was, and an answer that she did not know would not be unexpected. In the present case the sequence was just the opposite.
We see no logical connection between the facts testified to by Mrs. Siecke and the status of her husband’s lawsuit. We see no relevance to the testimony. At best, any possible relevance was outweighed by the danger of unfair prejudice, confusion, or misleading the jury.

Id. at 556-57 (emphasis added).

We agree with this analysis. The mere fact of settlement does not automatically implicate the bias or prejudice of a party to the settlement. If this were true, rule 408 would be rendered a nullity. Rather, there must be something about the settlement that might influence the witness to testify falsely. Only under these circumstances does the evidence reflect upon the possible bias or prejudice of the witness; accordingly, only under these circumstances is the evidence relevant. We turn now to the facts of this case.

Preliminarily we note that there is nothing in the record to suggest that Allen testified differently before the settlement than she did after the settlement; she has always maintained that the light changed too fast. More importantly, the defendant points to nothing in the settlement that would motivate Allen to testify falsely at trial. Under this state of the record, we find no factual basis to support admitting evidence of the settlement on the issue of bias or prejudice.

2. Relevancy to identity. The defendant argues alternatively that this evidence was relevant to show Allen’s identity for purposes of assigning fault to her. See Iowa Code § 668.3(2)(b) (requiring the jury to indicate the percentage of fault assigned to the plaintiff, the defendant, any third-party defendant, and any released party). We fail to find any indication in the record, however, that there was ever any dispute that Allen qualified as a released party for purposes of allocating fault. In fact, the plaintiffs attorney conceded at the hearing on her motion in limine prior to trial that the jury would “be determining an allocation of fault ... to Kristie Allen.” In the absence of a dispute on this issue, the evidence should not be admitted for purposes of identifying Allen as a released party. See Brewer v. Payless Stations, Inc., 412 Mich. 673, 316 N.W.2d 702, 705 (1982) (holding that “[w]hen there is no genuine dispute regarding either the existence of a release or a settlement between plaintiff and a code-fendant or the amount to be deducted, the jury shall not be informed of the existence of a settlement or the amount paid”). See generally Ipsen v. Ruess, 241 Iowa 730, 733-34, 41 N.W.2d 658, 661 (1950) (noting the general rule as to relevancy is “ hvhether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case ’ ” (emphasis added)).

The defendant relies upon our decision in Garren v. First Realty, Ltd., 481 N.W.2d 335 (Iowa 1992). In Garren, this court affirmed the admission of evidence that certain parties had been released by the plaintiff prior to trial. 481 N.W.2d at 339. This case does not provide authority for the admission of settlement evidence here, however, because in Garren the plaintiff objected to any instruction allowing the jury to allocate fault to the released parties. Id. at 337, 339. Therefore, the challenged evidence in Garren was relevant to a disputed issue, which is not the situation here. Therefore, Garren is not helpful in analyzing the issue before us in this case.

We think that to allow settlement evidence to be admitted under the circumstances present here—where the witness’s status as a released party is not at issue— would result in the automatic admission of such settlements in every case where the plaintiff settles with less than all the defendants. Such a result would seriously undermine Iowa’s public policy to encourage settlements. We hold, therefore, that the trial court abused its discretion in admitting the evidence in this case.

3. Prejudice. As noted above, prejudice is presumed when evidence is erroneously admitted, “unless the contrary is affirmatively established.” Lewis, 278 N.W.2d at 15. The record before us does not show a lack of prejudice so as to overcome this presumption. Clearly, evidence of the plaintiffs settlement with Allen would tend to imply to the jury that the plaintiff had already received a measure of compensation for her injury and that Allen would not have paid money to settle the ease if Allen did not think she was at fault. These misleading implications deprived the plaintiff of a substantial right to have the issues in the ease determined on the merits of the relevant evidence. Therefore, we hold that the plaintiff is entitled to a new trial untainted by evidence of her settlement with Allen. Although our decision on this issue requires reversal, we will address other issues raised on appeal that will arise again upon retrial.

III. Did the District Court Err in Instructing the Jury on the Issues of (1) Legal Excuse, (2) Res Ipsa Lo-quitur, (3) Plaintiff’s Fault, (I) the Definition of Red Light, and (5) Speed?

We review the trial court’s instructions to the jury for correction of errors of law. See Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 545 (Iowa 1997). In addition to the principle that “the theories of both parties must be submitted to the jury when supported by substantial evidence,” Lockard v. Carson, 287 N.W.2d 871, 875 (Iowa 1980), the following principles regarding jury instructions are also well established:

A material misstatement of the law warrants reversal. It is also reversible error to submit an instruction having no support in the record. “When considering whether evidentiary support for an instruction exists, [the court] give[s] the evidence the most favorable construction it will bear.” ... [Reversal is required when instructions are conflicting and confusing. An instruction is not confusing if, when the instructions are considered as a whole, one must conclude “that the jury could not have misapprehended the issue presented by the challenged instruction.”

Waits, 572 N.W.2d at 575 (citations omitted). “A party is not entitled to any particular form of instruction, but merely to instructions which fairly state the law as applied to the facts.” Rumley v. City of Mason City, 320 N.W.2d 648, 652 (Iowa App.1982).

A. Legal excuse. Under the legal excuse doctrine, a jury may excuse a party’s failure to comply with a statute if the party was confronted with an emergency not of the party’s own making. See Weiss v. Bal, 501 N.W.2d 478, 480 (Iowa 1993). Here, the plaintiff requested an instruction that Allen claimed that if the jury found that she violated the law, she had a legal excuse for doing so. The court, however, decided that the proper instruction was that the plaintiff claimed that if Allen violated the law, Allen had a legal excuse for doing so.

We find no error in the court’s instruction. “[T]he burden of proof on an issue is upon the party who would suffer loss if the issue were not established.” Beyer v. Todd, 601 N.W.2d 35, 41 (Iowa 1999). In this case, the plaintiff would benefit from proof of the defense, as a finding that Allen had a legal excuse for being in the intersection on a red light would reduce Allen’s fault, thereby potentially resulting in an allocation of more fault to the City. It is, therefore, the plaintiff who bears the burden of proof on this issue. While Allen may have initially claimed a legal excuse for her conduct, she was no longer a party at the time of trial. By the time this case was submitted to the jury, legal excuse was the plaintiffs claim, not Allen’s. Therefore, the court’s instruction was proper.

B. Res ipsa loquitur. The doctrine of res ipsa loquitur is a rule of evidence that permits an inference that the defendant was negligent. See Brewster v. United States, 542 N.W.2d 524, 528-29 (Iowa 1996). Two elements must be present for the doctrine to apply: “(1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used.” Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 686 (Iowa 1993). A party must produce substantial evidence of both elements to be entitled to an instruction on general negligence under the res ipsa lo-quitur doctrine. Brewster, 542 N.W.2d at 529.

Here, the plaintiff claims the trial court erred in refusing to give her requested instruction allowing the jury to consider this principle. We conclude no error occurred because the plaintiff failed to produce substantial evidence of the first requirement that the injury be caused by an instrumentality under the defendant’s exclusive control. To satisfy this element, “[t]he injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that the [defendant] was responsible for all reasonably probable causes to which the accident could be attributed.” W. Page Keeton et al., Prosser & Keeton on Torts § 39, at 248 (5th ed.1984).

In the present case, the immediate cause of the plaintiffs injuries was the collision of her vehicle with the car driven by Allen. Thus, the instrumentality directly causing the plaintiffs injuries — Allen’s car — was not in the exclusive control of the City. The fact that an additional instrumentality — the traffic lights — were potentially a cause of the plaintiffs injuries and were exclusively in the City’s control is insufficient to entitle the plaintiff to an instruction on res ipsa loquitur.

C. Plaintiffs fault. At the conclusion of the evidence and over the plaintiffs objection, the trial court allowed the City to amend its answer to allege the fault of the plaintiff for failing to maintain a proper lookout. The court then instructed the jury on the plaintiffs alleged fault and gave the following definition of “proper lookout”:

“Proper lookout” is the lookout a reasonable person would keep in the same or similar situation. It means more than looking and seeing. It includes being aware of the operation of the driver’s vehicle in relation to what the driver saw or should have seen.

The plaintiff does not challenge this instruction as a correct statement of the law, but does contend there was insufficient evidence to support the instruction.

The plaintiff testified that her last recollection before the accident was seeing the light turn green. Allen testified that she saw the plaintiffs car before the accident, that there was no sight obstruction between her car and the plaintiffs car, and that she saw the plaintiffs car pulling out a couple of seconds prior to impact. In addition, the plaintiffs expert testified that the plaintiff had a red light until approximately three seconds prior to the collision.

We agree with the defendant that reasonable minds could conclude from this testimony that if Allen could see the plaintiff, then the plaintiff could have seen Allen had the plaintiff looked. In addition, reasonable minds could conclude that had the plaintiff observed Allen, she could have seen that Allen was traveling at a high rate of speed (possibly 55 to 60 miles per hour) and was not stopping at the intersection. Finally, reasonable minds could conclude based on these circumstances that, had the plaintiff observed Allen’s vehicle, the plaintiff could have avoided the accident by not proceeding into the intersection when the light turned green for the plaintiff.

The plaintiff relies on the fact that under Iowa law she could assume that Allen would obey the law. This assumption, however, is only valid until the person “knows, or in the exercise of due care should have known, otherwise.” Matuska v. Bryant, 260 Iowa 726, 734, 150 N.W.2d 716, 721 (1967). In the case at hand, the jury could have concluded (1) ordinary care required the plaintiff, who was approaching an intersection where a red light had just turned green, to ascertain whether intersecting traffic had slowed or stopped before she entered the intersection, and (2) had the plaintiff exercised this degree of care, she would have known that Allen was not obeying the law by stopping at the red light.

The plaintiff also urges that there was no direct evidence of what she did or saw immediately before the accident because the last thing she remembered was her light turning green; consequently, she argues, there is no evidence to support the instruction on her alleged imjxroper lookout. The lack of any direct evidence from the plaintiff as to whether she looked and/or whether she saw Allen’s vehicle entering the intersection does not, however, preclude the jury from considering the circumstantial evidence indicating that the plaintiff had an opportunity to look and, had she observed Allen’s car, the plaintiff could have taken action to avoid the accident. See generally Rush v. Sioux City, 240 N.W.2d 431, 440 (Iowa 1976) (“ ‘the question as to its being a proper or sufficient lookout [is] determined by the particular surrounding circumstances as revealed by the evidence then under consideration’ ” (quoting Jesse v. Werner & Wemer Co., 248 Iowa 1002, 1011, 82 N.W.2d 82, 86 (1957))), overruled on other grounds by Hoffert v. Luze, 578 N.W.2d 681, 685 (Iowa 1998). We conclude, therefore, that the trial court did not err in instructing the jury on the defendant’s claim that the plaintiff was negligent for failing to maintain a proper lookout.

D. Definition of a red light. The plaintiff claims error in the trial court’s refusal to instruct the jury as follows:

[A]n all-red clearance interval may be used. If you find that an all-red clearance was used, it shall be of sufficient duration to allow those vehicles who could not stop safely prior to its display or who were in the intersection when it was displayed, to clear the intersection before conflicting traffic is released.

(An all-red clearance light means that traffic in all directions has a red signal, giving vehicles an opportunity to clear the intersection before cross-traffic is released with a green light.) Instead of the requested instruction, the trial court gave instruction 26, which informed the jury as follows with respect to a red clearance interval:

The yellow vehicle change interval may be followed by a red clearance interval of sufficient duration to permit traffic to clear the intersection before conflicting traffic movements are released.

This language is taken from the Manual on Uniform, Traffic Control Devices, which the City is required to follow. See Iowa Code §§ 321.252, .255; Iowa Admin. Code r. 761 — 130.1 (1996).

Clearly, the instruction given by the court is an accurate statement of Iowa law. Moreover, instruction 26 duplicates that portion of the plaintiffs requested instruction that the red clearance interval should be “of sufficient duration to allow those vehicles ... who were in the intersection when it was displayed to clear the intersection.” The court was not required to use the plaintiffs preferred language so long as the instruction embodied the same legal principle.

That brings us to the portion of the plaintiffs requested instruction not contained in instruction 26: that the red clearance light be of sufficient duration to allow the clearance of “vehicles who could not stop safely prior to its display.” This additional qualification with respect to the duration of a red clearance light is not contained in the Manual, nor has the plaintiff cited any other statute or case that imposes this requirement. Therefore, the trial court did not err in refusing to instruct on this concept.

E. Speed. The plaintiff objected to the court’s instruction, “At the time and place and with the motor vehicle involved in this case, any speed over 55 miles per hour was unlawful.” The plaintiff complains that there was no testimony that anyone involved in this collision was traveling in excess of 55 miles per hour. We think there was testimony in the record, however, from which the jury could conclude that Allen was traveling over 55 miles per hour. When asked “how may seconds was the red light on before you hit Mrs. Graber’s car?” Allen responded, “I don’t know how many seconds. Seconds go real fast when you’re going 60, 55, 60. It’s kind of a high speed.” As noted earlier, in considering whether there is substantial evidence in support of an instruction, we must construe the evidence most favorably to uphold the court’s decision. In doing so here, we think the quoted testimony supported the court’s instruction and, therefore, the court did not err in submitting this instruction to the jury.

IV. Whether the Application of Iowa Code Section 668.14,(1) to This Case Violates the Plaintiff’s Right to Due Process and Equal Protection of the Laws Under the United States and Ioiva Constitutions?

Iowa Code section 668.14(1) provides:

In an action brought pursuant to this chapter seeking damages for personal injury, the court shall permit evidence and argument as to the previous payment or future right of payment of actual economic losses incurred or to be incurred as a result of the personal injury for necessary medical care, rehabilitation services, and custodial care except to the extent that the previous payment or future right of payment is pursuant to a state or federal program or from assets of the claimant or the members of the claimant’s immediate family.

This statute, where applicable, modifies the common-law collateral source rule by allowing the introduction of evidence of payment by a third party or collateral source of expenses for medical care, rehabilitation services, and custodial care. See Schonberger v. Roberts, 456 N.W.2d 201, 202 (Iowa 1990) (noting that section 668.14 limits the collateral source rule under which “a tortfeasor’s obligation to make restitution for an injury he or she caused is undiminished by any compensation received by the injured party from a collateral source”).

The plaintiffs constitutional challenge to this statute begins with the premise that because it applies only “in an action brought pursuant to this chapter,” see Iowa Code § 668.14(1), it is triggered only by a “claim involving the fault of more than one party to the claim,” see id. § 668.3(2). Her argument continues that “blameless plaintiffs” are treated differently depending upon whether they have a claim against one party or more than one party. A blameless plaintiff who sues only one defendant is not subject to chapter 668 and the modified collateral source rule, she asserts, whereas a blameless plaintiff who sues more than one defendant is subject to the collateral source rule of section 668.14(1). The plaintiff argues that this different treatment violates her due process and equal protection rights.

We must reject the plaintiffs argument because it is based upon a faulty premise. This court held in Waterloo Savings Bank v. Austin, 494 N.W.2d 715, 717 (Iowa 1998), that the legislature did not intend by the language used in section 668.3(2) to restrict the application of chapter 668 to claims involving the fault of more than one party. We concluded that chapter 668 applied to any suit in which “fault,” as defined by section 668.1, was at issue, regardless of the number of parties allegedly at fault. Waterloo Sav. Bank, 494 N.W.2d at 717 (holding that chapter 668 applies to all actions alleging a non-intentional tort resulting in injury or death to persons or damage to property). Therefore, the plaintiffs underlying assumption — that section 668.14(1) does not apply in suits where a blameless plaintiff sues only one defendant — is not true. Accordingly, her constitutional claims fail.

V. Whether the Trial Court Erred in Failing to Sustain the Plaintiff’s Objections to the Questioning of her Expert Witness by the Defendant?

The plaintiff objected to the defendant’s cross-examination of her expert witness concerning a one-second perception/reaction time. She objected on the ground that there was no factual basis in the record for the assumption that a one-second perception/reaction time was appropriate. The trial court overruled the plaintiffs objection.

Our review of the record reveals that on direct examination the plaintiffs expert testified that it was possible for Allen to have stopped prior to reaching the intersection under certain assumptions he had made, including a one-second perception/reaction time. On cross-examination, the defendant merely sought to elaborate on this testimony. The plaintiff contends, however, that the evidence showed Allen’s perception and reaction were delayed and, therefore, a one-second perception/reaction time was not applicable.

Because the expert gave an opinion on direct that was premised on a one-second perception/reaction time, the trial court did not err in allowing questions on cross-examination that were also premised on a one-second perception/reaction time. Whether this typical perception/reaction time was a reasonable assumption under the circumstances of this case was a disputed issue for the jury to resolve.

VI. Did the Trial Court Err in Allowing Expert Testimony by a City Employee?

Prior to trial the district court ruled that the City could not present expert testimony because it had failed to timely designate an expert witness. At trial, the City called as a witness the city engineer who was responsible for determining the timing of the signals used at the intersection in question. The initial questions that sparked the plaintiffs objection included the following:

Q: And what role did you play in the change that was made in this plan?
A: I made the decision on what had to be done on those changes.
Q: All right. And what did you base your decision on?
A: When it was discovered that there was a discrepancy between the speed they used to determine those timings, we also found that they had used a method that would be....

The plaintiff objected on the basis that the witness was giving expert testimony in violation of the court’s pretrial ruling. The trial court overruled the objection and the witness was allowed to testify concerning the City’s determination about the appropriateness of the timing and the reasons for the City’s change of the timing. In addition, the witness testified that the City does not use an all-red clearance, but uses a change interval. He also testified as to his personal observations of the intersection in question.

Iowa Rule of Civil Procedure 125 governs the discovery of and testimony by expert witnesses. In pertinent part, it states:

Nothing in this rule shall be construed to preclude a witness from testifying as to (1) knowledge of the facts obtained by the witness prior to being retained as an expert or (2) mental impressions or opinions formed by the witness which are based on such knowledge.

Iowa R. Civ. P. 125(a)(1)(C). This court has previously examined the parameters of this rule in cases where a treating physician has not been designated as an expert. We have held the physician’s testimony is, nonetheless, admissible under rule 125(a)(1)(C). See Carson v. Webb, 486 N.W.2d 278, 280-81 (Iowa 1992). The determining factor is not whether the witness’s testimony is “opinion evidence that could not be the subject of lay testimony,” but “whether [the] evidence, irrespective of whether technically expert opinion testimony, relates to facts and opinions arrived at by a physician in treating a patient or whether it represents expert opinion testimony formulated for purposes of issues in pending or anticipated litigation.” Id. at 281.

The city engineer’s testimony in the present case is analogous to the testimony of a treating physician. The city engineer, even if giving “opinion evidence that could not be the subject of lay testimony,” was testifying as to facts obtained prior to the litigation and mental impressions and opinions formed upon the basis of such knowledge. Therefore, his testimony fell within rule 125(a)(1)(C) and was properly allowed by the trial court.

VII. Conclusion and Disposition.

The trial court erred in admitting evidence of the plaintiffs settlement with Allen. Although we find no merit to the other alleged errors by the trial court, the plaintiff is entitled to a new trial because her substantial rights were prejudiced by the improper admission of settlement evidence. Therefore, we reverse the judgment in favor of the defendant and remand for a new trial. Costs are taxed to the defendant.

REVERSED AND REMANDED.

All justices concur except NEIJMAN, J., who takes no part.

      . Our reversal and remand for a new trial on the basis of the erroneous admission of settlement evidence makes it unnecessary to decide the plaintiff's claim that she is entitled to a new trial because the verdict is against the overwhelming weight of the evidence and is without substantial support in the record. See generally Iowa R. Civ. P. 244 (setting forth grounds for new trial); Johnson v. Knoxville Community Sch. Dist., 570 N.W.2d 633, 641 (Iowa 1997) ("If a jury verdict is not supported by sufficient evidence and the verdict fails to effectuate substantial justice, a new trial may be ordered.”). To the extent that the plaintiff’s motion for new trial was actually a request for a directed verdict (the record is not entirely clear on this point), we con-elude that the evidence on the City’s fault was conflicting and, therefore, the case was properly submitted to the jury.

      . The trial court required that the plaintiff amend her pleadings to allege legal excuse in order to obtain an instruction on this defense. The plaintiff claims it was error for the court to require that the defense be pled. We agree. The legal excuse doctrine need not be pled, so long as it is raised at some point in the trial. See Machmer v. Fuqua, 231 N.W.2d 606, 608 (Iowa 1975); Dickman v. Truck Transp., Inc., 224 N.W.2d 459, 466 (Iowa 1974); Townsend v. Armstrong, 220 Iowa 396, 404, 260 N.W. 17, 21 (1935).

      . A "blameless plaintiff” is one who is not alleged to be at fault. We assume for purposes of this issue that the plaintiff in the case before us is blameless.

      . The plaintiff also objected to the cross-examination of her expert with respect to the length of a change period interval in jurisdictions that do not use an all-red clearance light. On appeal, she claims error in the trial court's allowance of such testimony. Upon our review of those portions of the transcript cited by the plaintiff, we locate two objections by the plaintiff to such questioning, both sustained by the trial court. Therefore, we find no basis in the record to support the plaintiff's claim of error.


source: Caselaw Access Project

author: NEUMAN, Justice. LAVORATO, Justice

license: Public Domain

text:
    Edward GAROFALO and Monica Garofalo, Co-Administrators of the Estate of Mathew Patrick Garofalo, Deceased, Appellants, v. LAMBDA CHI ALPHA FRATERNITY, an Indiana Corporation; Lambda Chi Alpha University of Iowa Chapter, a Voluntary Association; Timothy Reier, an Individual; and Chad Diehl, an Individual, Appellees.
    No. 98-1721.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Edward J. Gallagher, Jr., and Thomas C. Verhulst of Gallagher, Langlas & Gallagher, P.C., Waterloo, and David C. Wise of Corboy & Demetrio, Chicago, Illinois, for appellants.
    Kevin H. Collins of Shuttleworth & In-gersoll, P.C., Cedar Rapids, for appellee, Timothy Reier.
    Timothy J. Walker and Roscoe A. Ries, Jr., of Whitfield & Eddy, P.L.C., Des Moines, for appellees Lambda Chi Alpha Fraternity and Lambda Chi Alpha University of Iowa Chapter.
   NEUMAN, Justice.

The principal question on this appeal is whether a “special relationship” exists between a fraternity and its members so as to create a legal duty of care, actionable in tort, when a young initiate’s excessive drinking results in death. The district court concluded as a matter of law that no such duty exists under the material facts of this case. It therefore dismissed, on summary judgment, plaintiffs’ wrongful death action against their son’s national fraternity, its local chapter, and one of his fraternity brothers.

Having now considered the arguments on appeal, a majority of this court affirms dismissal of the action against Lambda Chi Alpha Fraternity and Timothy Reier. The district court’s decision to dismiss Lambda Chi Alpha University of Iowa Chapter stands affirmed by operation of law. See Iowa Code § 602.4107 (1999). We remand the case for further proceedings against the remaining defendant, Chad Diehl.

I. Scope of Review.

Because this case reaches us on appeal from entry of summary judgment, well-settled rules guide our review. We, like the district court, are obliged to view the factual record in the light most favorable to the resisting party, affording that party all reasonable inferences that the record will bear. Hildenbrand v. Cox, 369 N.W.2d 411, 413 (Iowa 1985). Summary judgment is proper only if the record made shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 237(c). “If the conflict in the record concerns only the legal consequences flowing from undisputed facts, entry of summary judgment is proper.” Farm, Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988). Whether a particular duty arises out of the parties’ relationships is a matter of law properly resolved in a summary judgment proceeding. Tenney v. Atlantic Assocs., 594 N.W.2d 11, 15 (Iowa 1999); Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 354 (Iowa 1991). Our review, therefore, is for the correction of errors at law. Sankey v. Richenberger, 456 N.W.2d 206, 207 (Iowa 1990).

With these principles in mind, we turn to the record made before the district court. That record consists of the pleadings, deposition testimony, written institutional policies, and investigative reports of police officers and university officials.

II. Facts.

Appellants Edward and Monica Garofalo aqe the parents of Matt Garofalo, now deceased, who was an associate member of Lambda Chi Alpha, a national fraternity with a local chapter in Iowa City, Iowa. Matt was nineteen and a sophomore at the University of Iowa when he died from pulmonary edema caused by aspiration of his gastric contents after consuming excessive quantities of beer and hard liquor. Matt consumed the alcohol following a “Big Brother/Little Brother” ceremony at the fraternity house.

The ceremony took place at about 10:00 p.m. on Thursday, September 7, 1995. It lasted fifteen to twenty minutes, followed a script, and culminated in the introduction of each new pledge to his “big brother.” The purpose was to establish a mentoring relationship that would last throughout the pledge year. Attendance at the ceremony was not mandatory but most, if not all, of the members took part. No alcohol was served or consumed during the ceremony.

It was traditional following the ceremony for each big brother to invite his new little brother to his room to toast their new relationship with drinks before adjourning to downtown taverns for more serious partying. The beer and liquor consumed for this purpose was purchased by each individual big brother. This was in contrast to other fraternity functions which often involved a “slush fund” collected by the social chairman who then purchased the desired alcoholic beverages. A written fraternity policy prohibited the use of chapter funds to purchase alcohol. The policy likewise directed chapters to conform their liquor possession and distribution practices to state law and institutional policy. It appears these policies were more often honored in their breach. Virtually every witness testified that beer and other alcoholic beverages were made available to members under the legal drinking age of twenty-one. See Iowa Code § 123.47A (1995). Moreover, five out of the six previous visits by national fraternity officers yielded reports suggesting that alcohol emphasis within the context of social development in the house was “strong.”

Matt Garofalo’s assigned big brother was defendant Chad Diehl. In advance of the ceremony, Diehl purchased beer and a bottle of Southern Comfort with the intent of sharing it with Garofalo. Diehl also purchased beer and vodka for defendant Tim Reier. Reier was an older member, and a big brother, but was under age for purposes of legally purchasing alcohol. The young men set up informal bars in their rooms and shared the liquor with whomever wandered in.

Garofalo drank heavily. He drank straight from the Southern Comfort bottle, as well as other available liquor bottles, along with the forty-ounce Mickey’s brew furnished by Diehl. He soon began to stagger and became loud, announcing he would drink everyone else under the table. Diehl told him to “slow down.” By 11:30 p.m. it was evident Garofalo was in no shape to go to the downtown bars. He stumbled and fell down a small flight of stairs. Diehl and Reier helped him up and decided he should lie down on a spare couch in Reier’s room. At that point Ga-rofalo was conscious and walking under his own power. But they moved him along, in Reier’s words, “like an injured player from the field.”

Garofalo passed out on the couch. Diehl and Reier positioned him on his side so he would not aspirate in case of vomiting. Around midnight Reier and his little brother headed down to the bars. Diehl stayed with Garofalo for roughly half an hour. He then left to attend to an altercation on the fraternity lawn. No one else took charge of Garofalo. Some time later, Diehl checked on him and found him snoring or, perhaps, “gurgling.” Two young women, who had been high school classmates with Garofalo, also checked on him during the early morning hours. One found that someone had drawn a beard on his face with magic marker and painted his ear with whiteout. She wiped off his face but was not otherwise concerned about his wellbeing.

Reier returned to the fraternity house around 3:00 a.m. Garofalo was still on his couch. In Reier’s words, “He was snoring and looked fine.” Reier turned him over, adjusted his pillow and noted that Garofalo “looked pretty content.” Reier awoke at 8:00 a.m., just in time for an 8:30 a.m. class. He glanced at Garofalo as he headed out the door. Garofalo appeared to be sleeping.

Around 11:30 a.m. it was discovered that Garofalo wras dead. The rug on the floor nearby was damp and smelled of vomit. A later autopsy estimated the time of death was between 7:00 a.m. and 8:00 a.m. His blood alcohol count was .188, leading the medical examiner to conclude Garofalo’s alcohol level “may have peaked at .250 to .300% eight hours before he died.”

Subsequent investigations led both police and university officials to conclude that no “hazing” was involved in the events in question, i.e., no one intentionally or recklessly engaged in “forced activity” endangering the health or safety of a student as a condition of initiation into the fraternity. See Iowa Code § 708.10 (crime of hazing defined). The assistant dean of students reported that the liquor consumed following the ceremony “had been purchased on an individual basis rather than part of an organized activity.” A police report summed up the events this way:

The ceremony may have created an opportunity for members to be together which could have spawned an opportunity to drink alcohol, but the ceremony itself carried no imperative for consumption. Further, it appears that events after the ceremony took on different forms as well. Some members left the area, others remained at the house, while others left for the downtown to “go out” which appears to be typical for the house on a Thursday night. Indications regarding Garofalo’s intake of alcohol reflect a decision on his part to consume rather than a mandate from his house mates to that effect.

III. Proceedings.

Garofalo’s parents, as co-administrators of his estate, filed a wrongful death action against the national fraternity, its Iowa chapter, Tim Reier, and Chad Diehl, as well as two other members of the Iowa chapter who were later dismissed as parties. Plaintiffs’ suit alleged negligence in the defendants’ conduct toward Garofalo, both in connection with the big brother/little brother ceremony and in failing to properly care for him after “securing [his] intoxication.”

All four defendants moved for summary judgment in advance of trial. As to plaintiffs’ claims against Tim Reier, the court found no proof that he affirmatively harmed Garofalo by furnishing him alcohol, nor did their relationship spawn a duty on Ms part to care for Garofalo once he became inebriated. As for the national fraternity and its local chapter, the court found no proof that Garofalo’s alcohol consumption was forced or involuntary. It also rejected plaintiffs’ claim that any legal duty flowed from these defendants to Ga-rofalo requiring them to protect him from self-inflicted harm. Finally, the court denied Diehl’s motion for summary judgment. Based on evidence that Diehl furnished alcohol to Garofalo in violation of state law, and disputed facts surrounding his conduct once Garofalo became intoxicated and passed out, the court ruled summary judgment in Diehl’s favor would be inappropriate. This appeal by Edward and Monica Garofalo followed.

IY. Arguments on Appeal.

Appellants pose a three-part challenge to the district court’s dismissal of their claims against the national fraternity, its Iowa chapter, and Tim Reier. First, they claim the court erred by failing to hold the Iowa chapter responsible for Garofalo’s intoxication and death. Second, they contest the court’s refusal to recognize the national fraternity’s duty of care to Matt Garo-falo and its breach. And, third, they cite error in the court’s refusal to hold Reier, and other members of the chapter, accountable for Garofalo’s care once he became helpless and unable to adequately protect himself. We shall consider the arguments in turn.

A. Duty of Iowa chapter concerning consumption of alcohol. Appellants’ first point rests on a theme repeated throughout this appeal — that a “special relationship” exists between a fraternity (local and national) and its members that gives rise to a heightened duty of care and protection. They then contend that the local chapter breached that duty when its members furnished alcoholic beverages to Ga-rofalo (1) in violation of state law, and (2) in quantities that were foreseeably dangerous. The fraternity counters that there is no legal or factual basis for these claims under the record before us. Our consideration of the relevant principles, described below, leads us to agree.

1. Special relationship. As a general rule the law imposes no duty upon an individual to act for the protection of others. Restatement (Second) of Torts § 314, at 116 (1965). Likewise, there is no duty to control the conduct of third persons so as to prevent that person from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315, at 122; accord Bohan v. Hogan, 567 N.W.2d 234, 236 (Iowa 1997); Sankey, 456 N.W.2d at 209; Hildenbrand, 369 N.W.2d at 415. Commonly recognized “special relations” include common carrier/passenger, innkeeper/guest, landlord/invitee, and peace officer/arrestee. Restatement (Second) of Torts § 314A, at 118. In general, “special relations” are those in which the law recognizes a duty to aid or protect persons in a relationship of “dependence or mutual dependence.” Id. cmt b; accord Beach v. University of Utah, 726 P.2d 413, 415-16 (Utah 1986). So, for example, a peace officer who stops an intoxicated driver but does not take him into custody has no “special relation” with the driver such that the law will recognize a duty of protection, and impose liability upon the officer, when the driver later kills himself in an accident. Hildenbrand, 369 N.W.2d at 415. But a tavern owner, who has no duty to the patron who drinks himself to death, may be held to have breached a duty of care if the drunk is wrongfully expelled from the saloon, late at night, to die of cold and exposure. Weymire v. Wolfe, 52 Iowa 533, 534, 3 N.W. 541, 542 (1879); accord Hildenbrand, 369 N.W.2d at 415.

2. Underage drinking. Iowa statutory law prohibits a person from giving, selling, or otherwise supplying alcoholic liquor, wine, or beer to persons between the age of eighteen and twenty-one except in limited circumstances prescribed by statute. Iowa Code § 123.47A. Violation of this law will support a common law cause of action by the underage person against the person furnishing the alcohol. Sage v. Johnson, 437 N.W.2d 582, 584-85 (Iowa 1989). “To prevail on such a cause of action, however, a plaintiff must prove the defendant’s knowing and affirmative delivery of the [alcoholic beverage] to the underage person.” Fullmer v. Tague, 500 N.W.2d 432, 434 (Iowa 1993) (emphasis added). “The statutory term ‘otherwise supply’ means more than merely permitting or allowing beer to be consumed on a defendant’s premises.” Id. (citing DeMore v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983)); accord Snyder v. Fish, 539 N.W.2d 197, 199 (Iowa App.1995).

3. Analysis. Appellants seek to bring the local chapter within the reach of these rules regarding duty and underage drinking. Several jurisdictions have considered similar laws in the context of injuries stemming from fraternity parties. But the cases upon which appellants rely all involve coerced consumption of enormous amounts of alcohol by underage pledges as an integral part of organized fraternity initiation ceremonies. See, e.g., Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill.App.3d 231, 107 Ill.Dec. 824, 507 N.E.2d 1193, 1195 (1987) (as part of pledge night initiation ceremony, each pledge directed to drink forty-ounce pitcher of beer “without letting the pitcher leave the pledge’s lips or until the pledge vomited” followed by an eight ounce bottle of whiskey); Ballou v. Sigma Nu Gen. Fraternity, 291 S.C. 140, 352 S.E.2d 488, 491 (Ct.App.1986) (pledges, clad only in underwear, expected to “chug ... unknown mix of intoxicating liquids of undisclosed alcoholic strength” at mandatory hell-night initiation party); Haben v. Anderson, 232 Ill.App.3d 260, 173 Ill.Dec. 681, 597 N.E.2d 655, 660 (1992) (recognizing cause of action against fraternity where consuming alcohol a requirement of membership and in violation of law prohibiting hazing); Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 174 Misc.2d 966, 667 N.Y.S.2d 650, 651 (N.Y.Sup.Ct.1997) (recognizing cause of action brought by estate of deceased son “who died as the result of alcohol poisoning suffered in the course of a night of hazing conducted at the defendant fraternity”).

Appellants suggest these cases rest on a “special relationship” between a fraternity and its members which, they argue, gives rise to a duty to protect the initiates from harming themselves through excessive drinking. In fact the cited cases recognize an affirmative duty on the part of the fraternities and their members not to cause injury, through violation of underage drinking and hazing laws, during the initiation process. Quinn, 107 Ill.Dec. 824, 507 N.E.2d at 1198 (duty to conduct initiation free from unreasonable risk of harm); Ballou, 352 S.E.2d at 492 (fraternity owes “duty to its initiates not to cause them injury in the process”). The distinction is important as we consider the summary judgment record before us.

In contrast to the cases cited by appellants, the facts established in the record before us reveal no affirmative harm by the Iowa chapter of Lambda Chi Alpha, illegal or otherwise, toward Garofalo. The drinking that ultimately led to Garofalo’s death was not part of any initiation ritual or ceremony. No chapter funds were used to purchase the liquor. It is true that tradition played a part in the decision by individual members to drink with underage pledges after the ceremony, and liquor was bought for that very purpose. But appellants have come forward with no proof to suggest, even impliedly, that Garofalo or any other member’s consumption was coerced or required as a condition of chapter membership. To the contrary, the record yields proof that Garofalo was an experienced, if not sensible, drinker and that at least one of his peers chose not to drink at all. Thus we are unpersuaded by appellants’ claim that disputed factual issues exist concerning the voluntariness of Garofalo’s conduct. See Fullmer, 500 N.W.2d at 435 (party resisting motion for summary judgment must come forth with specific facts demonstrating the existence of genuine issue for trial).

Viewing the record in the light most favorable to the appellants, we find no support for their claim that the Iowa chapter stood in a “special relation” to Matt Garofalo or affirmatively breached a duty owed to him. Neither the chapter nor its members (with the exception of defendant Chad Diehl) furnished him alcohol in violation of statute. Garofalo’s consumption of alcoholic beverages was not required or compelled as a condition of membership in the chapter. In short, the ideals of fellowship espoused by the chapter are insufficient, standing alone, to create a duty on the part of the chapter to protect Garofalo from his voluntary, adult choice to drink to excess. The district court was correct in so ruling.

B. Duty of national chapter. Appellants claim the national fraternity “had a duty to control the conduct of the Iowa chapter and its members to prevent them from causing physical harm to the Chapter’s initiates, including Garofalo.” Their argument rests on national executives’ knowledge that alcohol consumption occupied a prominent place in the social activities of the Iowa chapter. They contend the undisputed record shows the national organization did nothing to enforce its alcohol policies, university regulations or state law. By failing to hold offending members accountable for supplying alcohol to underage persons, appellants argue, the fraternity breached its duty to prevent foreseeable risk of harm from excessive consumption.

For all the reasons explained in the preceding division, the national fraternity had no more duty than the Iowa chapter to protect Garofalo from his decision to drink following the big brother/little brother ceremony. It neither furnished the alcohol he consumed nor forced him to consume it as part of any recognized fraternal activity. In analogous cases in which parents have sought to hold universities responsible for injuries resulting from the drinking habits of their adult but underage children, the majority of courts have held that the adoption of institutional policies prohibiting underage drinking do not establish custodial relationships between the institution and its students so as to impose a duty of protection on the part of the institution. See Bradshaw v. Rawlings, 612 F.2d 135, 141 (3rd Cir.1979); Booker v. Lehigh Univ., 800 F.Supp. 234, 237-38 (E.D.Pa.1992); Beach, 726 P.2d at 419-20. As the Beach court noted, such a policy or code of behavior may authorize discipline by the college or, in this case, the fraternity, but it does not change the nature of their relationship. Beach, 726 P.2d at 420.

The district court properly recognized that a fraternity is not a custodial institution and its members, as adults, are free to make choices about their use and abuse of alcohol. No care-taking function is involved. We are unaware of any legal authority which would elevate the fraternity’s failure to enforce its “Policy on Alcoholic Beverages” to an actionable civil tort. See Bohan, 567 N.W.2d at 236-37 (mere failure to act will give rise to legal duty only where special relationship is established). The district court properly granted the national fraternity judgment as a matter of law on this issue.

C. Duties arising under Restatement (Second) of Torts § 324. In their third assignment of error, appellants contend the court improperly rejected — except as to Chad Diehl — their claim that Tim Reier and other chapter members breached their duty to “take charge” of Garofalo once he passed out from intoxication. Their argument rests on Restatement (Second) of Torts section 324, captioned “Duty of One Who Takes Charge of Another Who is Helpless.” The rule states:

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

Restatement (Second) of Torts § 324, at 159. Appellants claim it is for a jury, not the court, to determine from the evidence whether chapter members and Reier, in particular, reasonably exercised-their duty to Garofalo under the rule.

Comment b to section 324 of the Restatement specifically states that the rule applies to an actor who takes charge of one who is drunk. The standard required is reasonable care. See id. cmt. d. When the actor has not contributed to the person’s condition or made it worse, the commentary describes the actor’s duty this way:

[Wjhere the other’s only ground of complaint is that he has failed to receive benefit from the actor’s assistance, the gratuitous nature of the services is an important factor in determining whether the actor has exercised reasonable care. The care which the actor must exercise is only that which the recipient of the gratuitous services is entitled to expect. Thus the actor is not required to conform to a high standard of diligence and competence, to possess any special skill, or to subordinate his own interests to those of the other, to the same extent as would be necessary if the services were obligatory or for compensation. He must, however, act in good faith and with common decency, with due allowance made not only for physical infirmities of the actor but also for any inferiority in intelligence-and judgment.

Id.

At the outset we reject appellants’ assertion that Reier’s status as Garofalo’s fraternity brother created a “special relationship,” custodial in nature, that gave rise to a heightened duty to protect him. The contours of Reier’s legal duty to Garo-falo are not measured by the “ideals and goals of the fraternity” as appellants argue. Reier-may have felt a moral obligation to look out for his fraternity brother but we know of no law. imposing upon him an enhanced legal responsibility based solely on that relationship. The same holds true for other members of the fraternity. Moreover, appellants have mustered no specific facts in resistance to the chapter’s motion for summary judgment to pin the “take-charge” duty on any other members but Diehl and Reier.

Thus the question boils down to whether Reier “took charge” of Garofalo on the night in question. Appellants contend Reier assumed this duty when he permitted Garofalo to lie down on the couch in his room. He acted reasonably, they concede, when he left Garofalo in Diehl’s care while he went downtown. Upon Reier’s return to the fraternity house, however, they contend his duty resumed. They fault Reier for “going to bed” and failing to “constantly monitor or check on Garofalo throughout the remainder of the early morning hours of September 8.” They cite the fact that Reier made no attempt to awaken Garofalo before he left for class as evidence that he breached his duty to him.

We, like the district court, do not believe that these facts, viewed in their most favorable light, establish a special duty running from Reier to Garofalo based on section 324. of the Restatement. Reier was not responsible for . Garofalo’s intoxication. He was not his “big brother.” He merely let Garofalo “sleep it off’ on his couch. Even if these facts could be stretched to fit the notion of “taking charge,” Reier’s conduct reveals no breach of that duty. When he left the fraternity house at midnight, Garofalo was intoxicated but conscious. When Reier returned to his room at 3:00 a.m., Garofalo was asleep and snoring. Reier repositioned him on his side, mindful for his safety. When he hurried out the door for an 8:30 a.m. class, Reier glanced at Garofalo, assumed he was asleep and made no attempt to awaken or “revive” him. Although appellants fault this latter omission, we believe the standard urged by appellants is substantially higher than what is required under the Restatement. Given the gratuitous nature of the undertaking, the rule requires only acting in “good faith and with common decency” and relieves the actor from responsibility for “a high standard of diligence and competence, to possess any special skill, or to subordinate his own interests to those of the other.” Id. cmt. d. Thus Reier, and the chapter, were entitled to judgment as a matter of law on this claim.

AFFIRMED AS TO DEFENDANTS LAMBDA CHI ALPHA FRATERNITY AND TIMOTHY REIER, AFFIRMED BY OPERATION OF LAW AS TO LAMBDA CHI ALPHA UNIVERSITY OF IOWA CHAPTER AND REMANDED.

McGIVERIN, C.J. and CADY, J. concur in this opinion.

LAVORATO and LARSON, JJ. concur in division IV.B of the majority opinion and dissent as to divisions IV.A and IV.C.

TERNUS, J. concurs in all but division IV.A of the majority opinion and joins divisions I and II of the dissent.

CARTER and SNELL, JJ. take no part.

LAVORATO, Justice

(concurring in part and dissenting in part).

I concur in division IV.B of the majority opinion. I dissent as to divisions IV.A and IV.C. For reasons that follow, I conclude there are genuine issues of material fact sufficient to overcome the defendants’ motions for summary judgment as to the Iowa chapter and Timothy Reier. Of course, implicit in my conclusion is that both defendants owed a duty to the decedent. I will address the law and facts that I find establish a duty running from each defendant to the decedent.

I. Vicarious Liability of the Iowa Chapter.

Contrary to the majority’s position, I think a genuine issue of material fact exists on whether the Iowa chapter violated Iowa Code section 123.47A(1) (1995)— Iowa’s underage drinking statute. That statute provides in part:

A person shall not sell, give, or otherwise supply alcoholic liquor, wine, or beer to any person knowing or having reasonable cause to believe that the person is age eighteen, nineteen, or twenty.

As the majority correctly notes, a violation of section 123.47A(1) will support a common-law cause of action by the underage person against the person furnishing the alcohol. Sage v. Johnson, 437 N.W.2d 582, 584-85 (Iowa 1989).

We have said that

[njegligence is the breach of legal duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. It has been defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is immaterial whether the standard is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by statute designed for the protection of others.

Lewis v. State, 256 N.W.2d 181, 188 (Iowa 1977) (emphasis added) (citations omitted). Leíais held that section 123.43 — predecessor to section 123.47A(1) — “sets a minimum standard of care for conduct generally required of the reasonably prudent man under like circumstances for purposes of a common law action of negligence based on the sale or the furnishing of intoxicating liquor.” Id. at 189. In short,’ section 123.47A(1) imposes a duty not to furnish alcohol to underage persons and a breach of that duty is negligence.

The key issue here is whether a genuine issue of material fact exists on whether the Iowa chapter sold, gave, or otherwise supplied alcohol to the decedent, who was underage at the time of this tragic incident. The terms “sell,” “give,” and “supply” in section 123.47A(1) require a defendant’s knowing and affirmative delivery of alcohol to an underage person. Snyder v. Fish, 539 N.W.2d 197, 199 (Iowa App.1995). “Otherwise supply” in this statute “means more than merely permitting or allowing beer to be consumed on a defendant’s property.” Fullmer v. Tague, 500 N.W.2d 432, 434 (Iowa 1993) (citing DeMore v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983)). However, as we noted in Fullmer, for a violation of the statute to occur, a defendant need “not personally fill his guests’ beer glasses.” Fullmer, 500 N.W.2d at 436 (holding that jury could find host supplied beer to minor on the basis that the host bought the beer, provided the cups, and joined in the party, observing his underage friends drinking from the keg, despite his claim that it was “help yourself’ or “pour your own” beer party so that he made no affirmative delivery of the beer to the minor).

There is no evidence that the Iowa chapter sold alcohol to the decedent. The narrow issue then is whether there was enough evidence to generate a fact issue on whether the Iowa chapter gave or otherwise supplied alcohol to the decedent.

At the time of the decedent’s death, the Iowa chapter leased a fraternity house in Iowa City from Iowa Colony House Corporation. The Iowa chapter at the time was a voluntary association. There is no allegation in the petition or facts that indicate the Iowa chapter was an incorporated association, so I proceed on the assumption that it was an unincorporated association.

An association “is a collection of persons who have united or joined together for some special purpose or business, and who are called, for convenience, by a common name.” 7 C.J.S. Associations § 2, at 22 (1980). The rule regarding the liability generally of members of an unincorporated association has been stated as follows:

While mere membership in an association does not of itself impose liability for the acts of the associates, at least in the absence of participation and knowledge or approval, liability of members of a voluntary, unincorporated association may be established by a public act of the association itself, or by the acts of officers, agents, or members where such acts are known to the membership and actively or passively approved.

7 C.J.S. Associations § 30, at 74.

Iowa law has long followed these principles. In the area of contracts, “where members contract in the name of an unincorporated association, they and all of the members who authorize, approve, consent, and ratify the contract are personally liable for the obligations of such contract.” Wilson & Co. v. United Packinghouse Workers of Am., 181 F.Supp. 809, 815 (N.D.Iowa 1960). Members of an unincorporated association may also be personally liable for torts of the association. Id. at 815-16.

At common law, an unincorporated association had no legal existence, so it could neither sue nor be sued in its association name only. Presbyterian Church of Osceola v. Harken, 177 Iowa 195, 199-200, 158 N.W. 692, 694 (1916). However, this court recognized early on that, if the individual members of the association were so numerous as to make it impracticable to bring them all before the court, one or more of the members could be sued as representatives of the others. Keller & Bennett v. Tracy, 11 Iowa 530, 531 (1861). If the plaintiffs choose this route, “the members of the association are treated as a whole and the unincorporated association is in effect treated as a legal entity.” Wilson, 181 F.Supp. at 817. In this scenario, any money judgment recovered would be paid out of the funds of the association and would not be enforceable against the members individually. Id.

Of course, the plaintiffs have a second option: suit against the members individually. Id. Under this option, any money judgment recovered would be enforceable against the individuals. Id. at 815.

Here, the plaintiffs have chosen to treat the Iowa chapter as a legal entity because the plaintiffs have not sued all of the chapter members and has asked only for relief against the Iowa chapter and not against all of the members individually. There is, however, one flaw in the plaintiffs’ choice of procedure: the plaintiffs have not named any members as representatives of the Iowa chapter. Because the defendants have raised no issue on this point, I will proceed on the assumption that the suit was properly instituted against the Iowa chapter as a legal entity.

As mentioned, members of an unincorporated association may be liable for the acts of officers, agents, or members of the association when such acts are known to the membership and actively or passively approved. From this, it necessarily follows that the association as an entity may be vicariously liable for such acts. This is so because an association can only act through its officers, agents, and members.

This vicarious liability finds support in Restatement (Second) of Agency section 213 (1958), which pertinently provides:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instru-mentalities under his control.

The evidence in this case is that underage drinking in the Iowa chapter house was the norm rather than the exception long before the incident in question. As the majority itself notes, virtually every witness testified that beer and other alcoholic beverages were made available to underage members. A reasonable inference from the record is that virtually every member was aware this was happening and virtually every member, passively if not actively, approved of the practice.

A report of the university investigation of the incident revealed that many of the twenty-four new members who participated in the “Big Brother/Little Brother” ceremony consumed alcohol purchased by other chapter members in the chapter house after the ceremony. The report further revealed that all twenty-four new members were under the legal drinking age, as were many of the active members. Besides the forty-eight little brothers and big brothers, at least twelve other chapter members came to the ceremony, bringing the total number of members in attendance to sixty. Additionally, the report noted that three new members passed out as a result of the alcohol consumption, including the decedent. The report also noted that the decedent consumed all of the liquor provided him by chapter members within one hour after the conclusion of the ceremony.

According to the investigation report, active members, including some chapter officers (defendant Chad Diehl was the vice-president of the chapter), purchased alcohol before the ceremony with the intention of offering it to new members after the ceremony had concluded. Following the ceremony, alcohol was available in three rooms on the second floor of the chapter house and in three rooms on the third floor of the house. In all six rooms, hard liquor was available as well as beer, and in several rooms more than one variety of hard liquor was consumed. There was some evidence that other rooms in addition to the six offered an open bar. The decedent’s drinking spree occurred in three of the rooms.

All of this drinking was traditional following the “Big Brother/Little Brother” ceremony and that included drinking by underage members and associate members.

The university concluded that the postceremony activities took place in the course of the Iowa chapter’s affairs. The university suspended the chapter, finding that it did not exercise reasonable preventive measures to ensure compliance with relevant policies (one of which was to comply with Iowa’s underage drinking statute) in the course of the chapter’s affairs.

Before this incident, the Iowa chapter had ten to twelve parties during a sixteen-week semester. Alcoholic beverages were available at all the parties. Although the policy was that no underage drinking was to be allowed, in fact underage persons did have access to alcohol at these parties. In 1993, the Iowa chapter put itself on probation with the national fraternity for violation of the alcohol policy against permitting underage drinking at chapter events.

Viewing all of this evidence in the light most favorable to the plaintiffs, I conclude a genuine issue of material fact exists as to the Iowa chapter’s vicarious liability under section 213 of the Restatement (Second) of Agency. All of this evidence would support a finding that the Iowa chapter permitted underage drinking on its premises in the past and on the night in question in clear violation of Iowa law. Additionally, the evidence would support a finding that the Iowa chapter was negligent in supervising activities on its premises in the past and on the night in question to avoid such a violation. In short, there is evidence to support a finding that the Iowa chapter gave or otherwise supplied through its members alcohol to the decedent who was underage at the time.

II. Failure of the Iowa Chapter to Render Aid to the Decedent Under Restatement (Second) of Torts Section 322 (1965) Based on Vicarious Liability.

As mentioned, there is evidence to support a finding that the Iowa chapter gave or otherwise supplied through its members alcohol to the decedent who was underage at the time. The evidence would also support a finding that as a result of this violation of the law the decedent became intoxicated to the point that he was helpless.

Two members of the Iowa chapter— Chad Diehl and Timothy Reier — took charge of the decedent just before he passed out. The district court concluded a genuine issue of material fact existed regarding Diehl’s liability under Restatement (Second) of Torts, section 322, and Diehl has not appealed from that ruling. This provision provides:

If the actor knows or has reason to know that by his conduct, whether tor-tious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

Diehl and Reier first took charge of the decedent when they helped him to Reier’s room after the decedent fell down a flight of stairs at the chapter house. The decedent passed out in Reier’s room. Reier left the house to go to a bar with his “little brother” while Diehl remained behind with the decedent. After the decedent passed out, Diehl positioned him on his side in order to reduce the chance that he would choke on his own vomit. Diehl continued to monitor the decedent’s condition until about 2:30 a.m., when he retired to bed in another room.

As members of the Iowa chapter and friends returned from downtown during the early morning hours, they saw the decedent passed out. Between midnight and 6 a.m., many of them listened for signs of life, and some rearranged the decedent’s sleeping position when they saw he was not sleeping on his side. The decedent was making gurgling noises. One of the decedent’s friends shook the decedent and yelled at him but got no response.

Reier returned to his room at approximately 8:30 a.m. with his “little brother” who observed the decedent lying on his back and heard him making gurgling sounds. Reier rearranged the decedent’s position by placing him on his right side and then went to bed. Reier woke up at 8 a.m. and left for class some fifteen minutes later without ever checking on the decedent, who appeared to be sleeping and still laying on his right side.

About three hours later, the decedent was discovered dead. The rug on the floor nearby was damp and smelled of vomit. A reasonable inference from this evidence and from the autopsy report is that the decedent died because he choked on his own vomit.

There is in evidence a publication from the national fraternity that was made available to each member of the Iowa chapter containing advice regarding intoxicated persons. One section of the publication states: “If the person passes out, monitor his or her breathing to make sure it’s normal. If the person cannot be revived, call for medical help immediately. Constantly monitor a person while he or she sleeps. It’s better for a person to sleep on his or her side, in case of vomiting.” In his deposition, Reier testified that these instructions were common sense to him.

All of this evidence would support a finding that Diehl and Reier realized that the decedent in his helpless condition was at risk for vomiting and choking on his own vomit — the very thing that killed him. The evidence would also support a finding that their inactions — failure to constantly monitor the decedent and call for adequate assistance, medical or otherwise — indicate a lack of reasonable care on their part. Under the vicarious liability theory earlier discussed, I think this breach of duty under section 322 of the Restatement (Second) of Torts could be imputed to the Iowa chapter. There was evidence that other members of the Iowa chapter were aware of the decedent’s condition but did nothing. The only two members who did do something did not do enough under the law.

III. Duty to Render Aid Running from Reier to the Decedent Under Restatement (Second) of Torts Section 324 (1965).

The majority concludes that the facts I have discussed relative to Reier’s conduct do not establish a duty running from Reier to the decedent under Restatement (Second) of Torts section 324 (Duty of One Who Takes Charge of Another Who is Helpless). I disagree.

Section 324 provides:

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

I think the facts regarding Reier’s conduct would support the following findings. Reier together with Diehl took charge of the decedent when they placed him in Reier’s room. Although Reier left Diehl in charge, the fact finder could find that Reier by leaving was not discontinuing his aid because on his return Reier (1) repositioned the decedent after decedent made gurgling sounds and was lying partially on his back and (2) made no objection to the decedent remaining in the room. Based on these findings, the fact finder could conclude that Reier assumed a duty to care for the decedent by monitoring him during the night or seeking medical attention or other assistance for the decedent. See Haben v. Anderson, 232 Ill.App.3d 260, 173 Ill.Dec. 681, 597 N.E.2d 655, 660 (1992) (held that complaint stated cause of action .against member of university club for breaching a voluntarily assumed duty to care for recruit who drank excessive amounts of alcohol by alleging that the member allowed the recruit to be placed on his floor unconscious, that he checked on him during the night and heard him gurgling, that he allowed the recruit to remain there, and that the recruit died of acute alcohol intoxication).

I would reverse and remand for further proceedings as to the Iowa chapter and Reier.

LARSON, J., joins this concurrence in part and dissent in part.

TERNUS, J., joins divisions I and II of this concurrence in part and dissent in part.