IN COURT OF APPEALS
and natural guardian of Alexia Ray Osborne Riley, et al.,
Twin Town Bowl, Inc., d/b/a Jerry Dutler Bowl,
Filed April 24, 2007
Toussaint, Chief Judge
Dissenting, Ross, Judge
Steven E. Tomsche, Daniel P. H. Reiff, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent)
S Y L L A B U S
In a civil-damage action under Minn. Stat. § 340A.801, subd. 1 (2006), summary judgment dismissing the action is appropriate when the record contains insufficient probative evidence that the intoxication proximately caused the injury.
O P I N I O N
TOUSSAINT, Chief Judge
In this civil-damage action, appellants Erin J. Osborne, individually and as parent and natural guardian of Alexia Ray Osborne Riley, Michael R. Riley Sr., Marie A. Riley, and Kelly M. Riley challenge the summary judgment entered in favor of respondent Twin Town Bowl, Inc. d/b/a Jerry Dutler Bowl on the issue of proximate cause. Because the undisputed facts do not support a proximate-causal relationship between the decedent’s intoxication and his drowning, we affirm.
After drinking with friends, Michael
Riley Jr. left Jerry Dutler Bowl. Shortly thereafter, about 1:30 a.m., on April
20, 2001, a state trooper clocked Riley driving 74 miles per hour in a 50-mile-per-hour
zone. Based on the radar reading, the
trooper turned around, speeded up, and activated his squad car’s emergency
lights and siren. He followed as Riley took
an exit ramp, maneuvered as if to avoid the trooper, took a right turn, drove
on the shoulder, and pulled over on a bridge across the
When the trooper approached the vehicle and Riley opened the window, the trooper smelled alcohol. Riley failed a variety of field sobriety tests; a preliminary breath test indicated his alcohol concentration was .18.
The trooper informed Riley that he was going to place him under arrest for driving while intoxicated. When he turned his back on Riley to put the breath-test equipment back into his patrol car, the trooper heard Riley say, “I’m out of here.” The trooper turned around and saw Riley on the bridge barrier. The trooper yelled, “No,” but Riley jumped. The parties agree that Riley jumped to escape arrest. The river was swollen and far above flood levels; Riley’s body was recovered several months later.
Appellants are Riley’s daughter, girlfriend, parents, and sister. Their civil-damage complaint alleges that respondent caused Riley’s death. Appellants obtained a postmortem report by psychologist George V. Komaridis, Ph.D., that concluded that Riley’s inebriation played “a substantial part in bringing about his decision to jump.” Respondent’s motion to dismiss the complaint for lack of causation was denied, but, after additional discovery, its motion for summary judgment on the causation issue was granted.
Did the district court err in ruling as a matter of law that the decedent’s intoxication was not a proximate cause of his drowning?
“On appeal from summary
judgment, we ask two questions: (1) whether there are any genuine issues of
material fact, and (2) whether the [district] court erred in [its]
application of the law.” State by Cooper
v. French, 460 N.W.2d 2, 4 (
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo,
504 N.W.2d 758, 761 (
The statute at issue here is the Minnesota Civil Damage Act, which provides:
A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person’s own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages.
Minn. Stat. § 340A.801, subd.
1 (2006). To state a claim under the
Act, a plaintiff must prove that the intoxication was a proximate cause of the
plaintiff’s injuries. Hartwig v. Loyal Order of Moose, Brainerd Lodge No. 1246, 253
The sole issue before the
district court and this court on appeal is whether there is sufficient evidence
of proximate cause for the action to survive summary judgment. Although proximate cause generally is a
question of fact for the jury, “where reasonable minds can arrive at only one
conclusion,” proximate cause becomes a question of law and may be disposed of
by summary judgment. Lubbers v.
Kryzer is the controlling caselaw on the issue of proximate cause in
a civil-damage action. In Kryzer,
an intoxicated person injured her wrist while she was being removed from a bar
by the bar’s employee. 494 N.W.2d at 35. The supreme court reinstated the district
court’s judgment of dismissal of the action based on the lack of a causal
connection between the person’s intoxication and her broken wrist. The Kryzer
court stated that the person’s “intoxication may have been the occasion for her
ejection from the legion club, but it did not cause either her injury or that
sustained by the plaintiff [her husband].”
In civil-damage cases, courts
must distinguish “between the occasion and the cause of an injury.”
Appellants argue that Riley’s intoxication directly caused his death. The district court concluded, as a matter of law, it did not. We agree with the district court.
Events occurring between Riley’s intoxication at Jerry Dutler Bowl and his drowning preclude the conclusion that the intoxication caused the drowning. First, Riley drove 24 miles over the speed limit and was stopped for speeding. No evidence indicates that Riley’s speed-limit violation or that the trooper’s decision to stop Riley for speeding was directly caused by the intoxication. In fact, the trooper stated that Riley’s speed was the only reason he stopped him. Only after these events, did the trooper smell alcohol, test Riley, and then advise him he was under arrest. The parties do not dispute that Riley jumped off the bridge to “escape arrest.” Absent evidence that Riley’s intoxication was the reason for his speeding, the trooper’s stop, or Riley’s fleeing arrest, these actions constitute breaks in the chain of causation between Riley’s intoxication and his drowning.
No genuine issue for trial
exists “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” DLH,
Inc. v. Russ, 566 N.W.2d 60, 69 (
In response to respondent’s motion for summary judgment, appellants submitted a psychologist’s report for the proposition that Riley’s intoxication was the cause of his drowning. Without ruling on the report’s admissibility, the court stated in a footnote that the report was of “minimal evidentiary value.” The court noted that the report was “dated three and a half years after Riley’s death, and was based on a review of medical and legal records and statements of Riley’s family and friends.” None of the report’s supporting records or statements are part of the record, and the report did not state that the psychologist had ever seen or treated Riley.
otherwise agreed by the parties, expert opinions are to be presented through
expert testimony.” Kelly v. Ellefson, 712 N.W.2d 759, 771 (
The district court properly assessed the value of the expert report submitted to defeat respondent’s summary-judgment motion. As evidence offered to show the effects of Riley’s intoxication on his decision to jump, the report had minimal evidentiary value. Absent evidence permitting reasonable persons to conclude that Riley’s intoxication caused his drowning, the court properly granted summary judgment for respondent.
The district court did not err in granting summary judgment in appellants’ civil-damage action on the essential element of proximate cause when the record contained insufficient probative evidence of a direct causal relationship between the decedent’s intoxication and his drowning.
ROSS, Judge (dissenting)
I am persuaded that the majority construes the caselaw on proximate cause too broadly in its decision to affirm summary judgment, and I respectfully dissent. I do not believe that the recent precedent precludes a jury from determining that proximate cause existed on the presently accepted facts. A factfinder could decide that Riley’s intoxication so reduced his inhibitions, impaired his judgment, and deluded his perception that he chose imprudently to step from a bridge into a rushing river based on the misperception that he could swim safely to its bank. I therefore would reverse and remand for a trial.
The purposes of the Civil
Damage Act are to protect public health, safety, and welfare by carefully
regulating liquor distribution, to penalize dram shops for illegal liquor
sales, and to provide a remedy for innocent third persons injured “as a result
of another’s intoxication.” Englund v. MN CA Partners/MN Joint Ventures,
555 N.W.2d 328, 332 (
These essential facts are accepted for our summary-judgment analysis: A Jerry Dutler Bowl employee unlawfully served Michael Riley alcoholic beverages. The illegal sale intoxicated Riley at nearly twice the legal threshold at the time. A trooper stopped Riley’s vehicle for speeding soon after he left Jerry Dutler Bowl. The trooper told Riley that he would be arrested for driving while intoxicated, and Riley calmly mounted and jumped from the highway-bridge railing into the fast-flowing river to escape arrest, announcing, “I’m out of here.” Someone found his body months later.
The majority rests its decision on three cases. A uniform plot precipitated dismissal as a matter of law in each of these cases: some third person, uninfluenced by the dram shop’s service of alcohol, decided to engage in the act that directly caused injury. But this uniform plot is entirely absent from the case before the court today. This case therefore calls for a different result.
In Kryzer, a bouncer tossed a disruptive, intoxicated patron from a
bar, causing the patron injuries. Kryzer v. Champlin Am. Legion No. 600,
494 N.W.2d 35, 36 (
The reasons the
In sharp contrast to the clear
pattern of merely responsive actions by third parties addressed in these dismissed
cases, the appellants here rely on a traditional dram-shop theory, focusing
directly on action taken by Riley that caused injury. That is, rather than resting their claim on
injuries that resulted from a third-party’s reaction to an intoxicated patron’s
conduct, the appellants contend that Jerry Dutler Bowl served alcohol
unlawfully, causing Riley’s intoxication, and that this intoxication itself caused
Riley to engage in the injurious conduct for which the bar is liable. Whether Riley’s reckless decision to plunge
into the river resulted from his intoxication or from some other motivation is precisely
the type of factual consideration that juries have made in time-honored
dram-shop cases. See, e.g., Kvanli v. Village
of Watson, 272 Minn. 481, 485, 139 N.W.2d 275, 278(1965) (holding that “[t]he jury could infer that lack of judgment
or perception resulting from intoxication produced by the consumption of the
liquor was a proximate cause of the events which brought about the injury”); Murphy v. Hennen, 264
This case does not at all fit into the Kryzer line of dismissible cases. It would if, for example, Riley’s intoxication contributed to violent conduct by Riley during the traffic stop and the trooper, in response, had attempted to seize Riley and unintentionally (or even intentionally) pushed him into the river. In that situation it would be accurate to hold that, as a matter of law, Riley’s intoxication is the occasion for but not the cause of the injury.
But the majority instead places undue emphasis on the traffic stop and Riley’s attempt to avoid arrest. It emphasizes that “[n]o evidence indicates that Riley’s speed-limit violation or that the trooper’s decision to stop Riley for speeding was directly caused by the intoxication.” The majority therefore concludes that the speeding, stop, and attempted escape “constitute breaks in the chain of causation between Riley’s intoxication and his drowning.” In doing so, the majority misses that Riley’s allegedly clouded misperception that he could safely enter into and swim out of the river is the real focus of the proximate-cause analysis. In my opinion, it is this distraction concerning the circumstantial trigger to Riley’s decision to act on his misperception that takes the majority astray and leads it to see distance in the “chain of causation between Riley’s intoxication and his drowning.” But the only causal link between Riley’s intoxication and his drowning is his plunge, which his survivors insist was based on a misperception caused by the alcohol that Jerry Dutler Bowl overserved Riley. The attendant circumstances within these material facts should be of little consequence. What if Riley had stopped on the bridge to fix a flat tire, or to pick up a hitchhiker, or to avoid colliding with a hallucination? The reason for his presence on the bridge does not bear on whether his intoxication caused his injuries. And what if, in any of these circumstances, a passing stranger had dared him to jump into the river, or had paid him to do so? Or what if he had merely imagined that a police officer was attempting to arrest him?
I view these hypothetical scenarios as I view the actual traffic stop and arrest: they are incidental stimulants that might spark an intoxicated person to consider acting on a dangerous alcohol-induced misperception. Whether the trooper’s lawful actions would have led a sober Riley to jump should doubtless be of significant concern to the jury. But I do not believe that these incidental triggering circumstances provide a basis to determine proximate cause as a matter of law when it is alleged, and the facts arguably support, that intoxication directly caused the injurious action. I therefore would not determine proximate cause as a matter of law based on the stop, on the trooper’s attempt to arrest Riley, or on Riley’s attempt to avoid arrest.
I add a concern that the majority’s analysis and conclusion seem to suggest that a dram shop is not liable when the intoxicated patron becomes a driver who violates the law, and the violation then leads to the injury. This suggestion inadvertently invites the defense of superseding causation, which precedent has barred in dram-shop cases. The Fette court rejected the defense, explaining that “[i]f . . . the driving conduct of [the intoxicated patron] after he left the bar was a superseding cause of the accident, then every bar would have superseding cause as a defense, and the Dram Shop Act would be rendered ineffective.” Fette, 404 N.W.2d at 865 (quotation omitted). If Riley’s illegal driving conduct and illegal flight can prevent liability for the injury that resulted from his alleged drunken misperception, the concern expressed in Fette has not been accounted for here. And the law of dram-shop liability becomes much less clear.
Riley’s leap unquestionably caused the injury, and the appellants maintain that its proximate cause was Riley’s allegedly inebriated misunderstanding that he could launch himself into the river safely. The jury should decide whether, as a matter of fact, intoxication actually contributed to Riley’s decision to take his tragic leap. It could decide this with or without expert testimony because, as the majority points out, the effect of intoxication is generally within the common knowledge of laypeople. I would therefore reverse the district court’s entry of summary judgment for Jerry Dutler Bowl.
 Appellants apply language from Ponticas v. K.M.S. Investments, Inc., 331 N.W.2d 907, 915 (Minn. 1983) (concluding that owner and operator of apartment building were negligent in failing to investigate apartment manager and failure to investigate was proximate cause of tenant’s sexual assault). Ponticas is not a civil-damage action and, although decided a decade before Kryzer, was not cited in Kryzer.
Appellants argue that the district court failed to consider whether Riley’s decision to jump “was infected by the level of intoxication he achieved at Twin Town Bowl.” Caselaw under the Civil Damage Act does not require such an inquiry. The sole issue is whether the intoxication proximately caused the injury.
 Appellants contend that it was irrelevant that Riley “jumped to escape, not to commit suicide.” The district court’s acceptance of this undisputed fact is supported by the record. The reason for the jump is also relevant to the proximate cause inquiry.
 Although, in their primary brief, appellants question the propriety of the district court’s statement, they claim in their reply brief that respondent cannot address the statement without a notice of review. The district court’s statement did not constitute a ruling on the admissibility of the report. As part of its reasoning in its decision to grant summary judgment, the statement by the district court is properly considered by this court without a notice of review.
 Appellants’ counsel argued at the summary-judgment hearing that Dr. Komaridis once saw Riley professionally, but this fact does not appear in the record. The report itself states only that Riley was seen at the same clinic 11 years earlier.