This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-1434

Ricky L. Barron,
Appellant,

vs.

Fransen, Inc.,
d/b/a Gluek Brewing Company,
Respondent,

Hirshey Investment Corporation,
d/b/a Barney's Underground,
Respondent.

Filed January 11, 2000
Affirmed
Klaphake, Judge

Hennepin County District Court
File No. PI-99-1251

Brian J. Love, Hauer, Fargione & Love, P.A., 526 Parkdale Plaza, 1660 South Highway 100, Minneapolis, MN 55416 (for appellant)

Peter E. Lind, Steven D. Pattee, Waldeck & Lind, P.A., 730 TCF Tower, 121 South Eighth St., Minneapolis, MN 55402 (for respondent Fransen)

Paul A. Banker, Arthur, Chapman, Kettering, & Smetak, P.A., 500 Young Quinlan Building, 81 South Ninth St., Minneapolis, MN 55402 (for respondent Hirshey)

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

On January 22, 1998, appellant Ricky Barron was the first person to come upon the scene of an accident. The accident had occurred on Interstate 394 when Matthew Davisís vehicle struck another vehicle during a lane change, spun out of control, and collided with the median barrier. Barron parked his vehicle on the right shoulder and crossed the lanes of traffic on foot to reach Davisís stopped vehicle. As he was leaning in the passenger window to take the passengerís pulse, another vehicle struck Davisís vehicle. Barron was thrown backward and sustained serious internal injuries.

Barron thereafter brought this action under the Civil Damage Act against respondent Fransen, Inc., d/b/a Gluek Brewing Company and respondent Hirshey Investment Corporation, d/b/a Barneyís Underground, who had served intoxicating liquor to Davis prior to the accident. See Minn. Stat. ß 340A.801, subd. 1 (1998). Respondents moved to dismiss, arguing that there was no causal link between Davisís intoxication and Barronís injuries. Barron appeals from the district courtís dismissal of the action.

Because Davisís intoxication did not proximately cause Barronís injuries as a matter of law, we affirm.

D E C I S I O N

The Minnesota Supreme Court has explicitly instructed this court that to establish liability under the Civil Damage Act, the intoxication must proximately cause the plaintiffís injuries. Kryzer v. Champlin Am. Legion No. 600, 494 N.W.2d 35, 36-37 (Minn. 1992). The court rejected the "but for" causation test and made a distinction between the "occasion" and the "cause" of an injury. Id. at 37.

Thus, while the intoxication of the plaintiff in Kryzer may have been the "occasion" for her ejection from the bar, it did not "cause" the injury to her wrist; rather, the act of the bar employee who ejected the plaintiff was the cause of her injury. Id. Similarly, in Kunza v. Pantze, 531 N.W.2d 839 (Minn. 1995), revíg, 527 N.W.2d 846 (Minn. App. 1995), by reversing this courtís decision in a per curiam opinion based solely on Kryzer, the supreme court intimated that while the plaintiffís former husband in Kunza may have been intoxicated, his intoxication did not "cause" the plaintiffís injuries, which were sustained when she opened the door of the coupleís van and exited while the van was moving. See id., 527 N.W.2d at 847.

In this case, after he came upon the accident scene, Barron decided to pull over, stop his car, cross the lanes of traffic on foot, and attempt to render assistance to Davisís passenger. Davisís intoxication was merely the "occasion" and not the "cause" of Barronís injuries. Although Barron might argue that Davisís intoxication caused Barron to place himself in a position of peril, that connection is too remote; the law requires a more direct connection, as illustrated by Kryzer and Kunza.

The district courtís dismissal of Barronís complaint is affirmed.

Affirmed.