This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Patrick Schur, et al.,





Ryan Langeslay, et al.,



Chiem Hinh, Inc., d/b/a Smith Liquor Store,



Lloyd E. Kreidermacher,



Filed March 12, 2002

Reversed and remanded

Parker, Judge*


Dakota County District Court

File No. C0008631


Michael R. Sieben, Michael R. Strom, John P. Sieben, Sieben, Polk, LaVerdiere, Jones & Hawn, P.A., 999 Westview Drive, Hastings, MN 55033 (for respondents)


Michael W. McNee, Cousineau, McGuire & Anderson, 1550 Utica Avenue South, Suite 600, Minneapolis, MN 55416-5318 (for defendants Ryan Langeslay, et al.)


Michael Klutho, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402-3787 (for defendant Chiem Hinh, Inc.)


Michael B. Goodman, Goodman & Guzinski, P.A., 300 First Avenue Northwest, Suite 221, Rochester, MN 55901; and


Peter C. Sandberg, Dunlap & Seeger, P.A. 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55904 (for appellant)


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


A high school graduation party was held at appellant’s campground, during which there was underage drinking.  Respondent Schur, a passenger in a vehicle that left appellant’s campground, was injured in a single-car accident and sued the driver and a liquor store, both of whom settled, as well as appellant campground owner.  Appellant Kreidermacher contends the district court, in denying his motion for summary judgment, erred (1) in ruling that because appellant was not a social host, the Civil Damages Act, Minn. Stat. § 340A, did not preempt the lawsuit; (2) by deciding that he owed a duty to the campers to control their consumption of alcohol and keep them on the campground until they were sober and rested; (3) in deciding that appellant owed a special duty to respondent to protect him from the negligent conduct of the driver; and (4) in determining that appellant was so closely connected with the accident that the law should allow a cause of action, and that the issue of foreseeability was a jury question.  We reverse and remand.



On appeal from summary judgment, we ask whether there are any genuine issues of material fact, and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  No genuine issue of material fact 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 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).



            Whether the Civil Damages Act applies in this case and preempts other claims is a question of law.  A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

            We hold that the district court correctly determined that appellant Kreidermacher was not a social host because he did not provide, give, or furnish Schur, or any of the other campers, with alcohol, and had no role in organizing or sponsoring the campers’ activities.  The district court also correctly determined that the Minnesota Civil Damages Act does not preempt liability.  We believe Kreidermacher’s conduct is too remote in its relationship to the campers’ drinking for liability to be preempted by the act.  Instead, this claim is best understood as a common-law negligence case.


The district court found that Kreidermacher owed Schur “a legal duty as a matter of law,” and determined that a jury could most properly decide whether Kreidermacher breached that duty.  Kreidermacher contends he had no special relationship with Schur and the only duty he owed Schur was the duty a landowner owes an entrant onto his property.

Whether Kreidermacher had a special relationship with Schur, giving rise to a duty to warn, is a question of law, and this court need give no deference to the district court’s determination on the matter.  Frost, 358 N.W.2d at 642. 

            “[A]n affirmative duty to act only arises when a special relationship exists between the parties.”  Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993) (citation omitted).  In general, a special relationship creating a duty to warn exists only in common carriers, innkeepers, possessors of land held open to the public, or a person in custody of another under circumstances in which that other person lacks normal opportunities of self-protection.  Id.

            Logic dictates that a duty to warn arises only if a person knows or should know of a dangerous condition.  In this case, the record is devoid of evidence that Kreidermacher knew of Schur’s or Langeslay’s intoxication or exhaustion.  Further, since Kreidermacher did not monitor the campers throughout the night, there is no reason he should have known of Schur’s and Langeslay’s condition.  Thus, the evidence does not support the existence of a duty to warn between Kreidermacher and Schur.

Moreover, while a landowner may be duty bound to control the conduct of an invitee on his land, no authority supports the proposition that a landowner owes a duty to third persons “to control an invitee to the extent of preventing him from leaving the land.”  Hoffman v. Wiltscheck, 379 N.W.2d 145, 149 (Minn. App. 1985) (citation omitted). 

In the absence of a duty to warn or a duty to keep Schur or Langeslay from leaving, Kreidermacher owed Schur only the duties a landowner owes an entrant on his land.  A possessor of land owes an entrant a duty “to use reasonable care to protect him or her from unreasonable risk of harm * * * .”  4 Minnesota Practice, CIVJIG 85.25 (2001).

While there is evidence that Kreidermacher knew some of the campers were drinking that night, this fails to prove that he knew Langeslay or Schur had been drinking all night or even that they may have been awake all night.  Further, the evidence suggests that Kreidermacher had no reason to know of Schur’s or Langeslay’s condition.  Langeslay testified that he felt competent to drive and was not intoxicated.  Similarly, the other passengers in Langeslay’s car expressed confidence in his ability to drive.  Because Kreidermacher was not shown to have known of Schur’s vulnerability or Langeslay’s alleged intoxication or exhaustion, Kreidermacher cannot be held to have violated his duty of reasonable care in allowing Schur and Langeslay to leave his campground.  See Hoffman, 379 N.W.2d at 149.

Respondent argues that Kreidermacher forced the campers to leave the campground and it was that affirmative action which created his liability, not simply that he had allowed the campers to leave.[1]  However, in Cole v. City of Spring Lake, 314 N.W.2d 836, 840 (Minn. 1982), the supreme court held that a couple had no common-law liability for requiring their intoxicated brother/brother-in-law to leave their home even though he asked to stay and they knew of his drunken condition.  Cole was decided under the Minnesota Civil Damages Act, but it suggests that even under much more culpable circumstances than those of the present case, forcing someone to leave the premises may not create liability for the landowner.  In the present matter, we are not directed to any evidence that Kreidermacher forced Langeslay or Schur individually to leave his property, or that he was aware of either man’s condition.  Because he had no knowledge of either man’s condition, he owed neither man a duty to keep him from leaving.  Thus, the district court erred by denying Kreidermacher’s motion for summary judgment.

            Because we hold no duty to have existed, we find it unnecessary to address the issue of foreseeability.  But see Alholm v. Wilt, 394 N.W.2d 488, 491 n.5 (Minn. 1986).

Reversed and remanded for proceedings not inconsistent with this opinion.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] We note that Kreidermacher allowed several campers requesting to do so to remain on the campground until they felt fit to drive.