This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Jeffrey Donald Klein, by and through his parent

and natural guardian, Ginni Gae Klein,





Cronin Real Estate Holdings, Inc., d/b/a DaBoars Bar and Grill,



Inn Town II Enterprises, Inc., d/b/a Inn Town II,




Filed January 4, 2005

Reversed and remanded

Halbrooks, Judge



Carver County District Court

File No. CV-03-469


Jeffrey M. Montpetit, Sieben, Grose, Von Holtum & Carey, Ltd., 800 Marquette Avenue, 900 Midwest Plaza East, Minneapolis, MN 55402 (for appellant)


Byron M. Peterson, Jeanette P. Cogelow, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent)




            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Jeffrey Donald Klein, by and through his parent and natural guardian, Ginni Gae Klein, challenges the district court’s grant of summary judgment in favor of respondent Cronin Real Estate Holdings, Inc., d/b/a DaBoars Bar and Grill, arguing that circumstantial evidence presented by appellant creates a genuine issue of material fact regarding the issue of whether respondent sold to his father, Leon Klein (Klein), intoxicating beverages when he was obviously intoxicated, in violation of Minn. Stat. § 340A.502 (2002).  Because appellant has raised a minimal uncertainty about the existence of a genuine issue of material fact as to whether Klein was obviously intoxicated when served alcohol at DaBoars, we reverse and remand.


            On July 16, 2001, Leon Klein arrived at Inn Town II between 9:15 and 9:30 p.m.  While there, Klein drank two 12-ounce beers.  There is no evidence in the record indicating that Klein had been drinking prior to going to Inn Town II.  Klein left Inn Town II with Cheryl Kaufmann sometime between 10:15 and 10:30 p.m.  According to Kaufmann, the pair arrived at DaBoars Bar & Grill at approximately 10:45 p.m. 

All of the witnesses testified that Klein drank from two to four beers while at DaBoars.  Richard Hardel, an owner of Inn Town II, who was not present at DaBoars, testified that John Lodin told him that Lodin and Klein “did some shots” while at DaBoars because it was Lodin’s birthday.  According to Hardel, Lodin told him that Klein “had a hard time making it to the bathroom [and] that he was bouncing off the walls” at DaBoars.  But at his deposition, Lodin testified that neither he nor Klein consumed any shots that night and that Klein drank only three or four beers while at DaBoars.  Lodin also testified that Klein did not appear to be intoxicated when Klein arrived at DaBoars or when he left.  Jeff and Shelly Cronin, the owners of DaBoars, and Kaufmann all testified that Klein did not appear to be intoxicated while at DaBoars. 

According to Kaufmann, she and Klein stayed at DaBoars until approximately 12:30 a.m.,[1] then talked in the parking lot for about 30 minutes before leaving.  Kaufmann and Klein left DaBoars in separate vehicles, and Kaufmann followed Klein as they drove on gravel roads toward his home.  Approximately a mile from his home, Klein’s truck left the road and rolled over.  Klein was thrown from the truck and died.  The district court noted that it is uncontested that, at the time of the accident, Klein’s alcohol concentration was between .24 and .25 percent. 

In May 2003, Klein’s ex-wife filed suit against Inn Town II and DaBoars on behalf of Klein’s minor son, Jeffrey, alleging that the bars had illegally served intoxicating beverages to Klein when he was obviously intoxicated in violation of Minn. Stat. § 340A.502 (2002).  Appellant subsequently settled his claim with Inn Town II. 

DaBoars moved for summary judgment.  In opposing this motion, appellant argued that evidence of Klein’s alcohol concentration, an affidavit from an expert witness indicating that Klein would have been obviously intoxicated at DaBoars,[2] and Hardel’s statement composed sufficient circumstantial evidence from which a jury could infer obvious intoxication.  The district court granted DaBoars’ motion, finding that appellant had presented no substantive evidence that Klein was obviously intoxicated when served alcohol at DaBoars and thus failed to establish a prima facie case.  In so deciding, the district court ruled that Hardel’s statement regarding what Lodin allegedly told him about “doing shots” with an obviously intoxicated Klein was hearsay that could be used only for impeachment, not as substantive evidence.  This appeal follows.


On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  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 as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.  The district court’s function on a summary-judgment motion is not to determine factual issues, but to decide whether genuine issues of material fact exist.  DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  “[S]ummary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented.”  Id. at 69.  Any uncertainty as to the existence of a genuine fact issue must be resolved in favor of its existence.  Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).


            At the outset, we note that respondent argues that appellant has presented this court with new issues and is pursuing a new theory not presented to or decided by the district court.  Accordingly, respondent asks this court to disregard the issues and theory.

            As a general rule, appellate courts will not consider issues that were not presented to or decided by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  “An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.”  Id. at 582-83.  “Nor may a party obtain review by raising the same general issue litigated below but under a different theory.”  Id. at 582.  “We may, however, review any matter ‘as the interest of justice may require.’”  Genung v. Comm’r of Pub. Safety, 589 N.W.2d 311, 313 (Minn. App. 1999) (quoting Minn. R. Civ. App. P. 103.04) (addressing argument raised by appellant even though not argued before district court).  Here, there are no exigencies that would justify such extraordinary review.

            Respondent argues that a number of issues introduced on appeal were not presented to the district court.  Specifically, respondent contends that because, in appellant’s memorandum in opposition to summary judgment, he raised only the issues of Klein’s alcohol concentration, the toxicologist’s report, and Hardel’s statement about what he was allegedly told by Lodin, these are the only factual questions that may be considered by this court. 

            Respondent contends that appellant is now attempting to present a “new theory of ‘totality of the circumstances.’”  In his brief, appellant lists several factors in support of his position that Klein was obviously intoxicated when served at DaBoars, some of which are similar to those introduced in other dram shop cases, such as that the accident happened within miles of the bar shortly after Klein left and that Kaufmann appeared to be intoxicated at the accident scene.  Appellant replies that this is not a new theory but, rather, the theory considered by the district court.  In support, appellant points to a statement in the district court’s amended order granting summary judgment in which the court noted that “the entirety of the substantive evidence contained in the record shows that Mr. Klein was not obviously intoxicated.” 

Appellant suggests that because the record contains a factual underpinning[3] for the other issues he seeks to raise as substantive evidence of Klein’s obvious intoxication, these issues were properly presented to the district court.  We disagree.  Appellant was aware of these additional issues when respondent moved for summary judgment, yet he did not mention them in his memorandum in opposition to summary judgment.  It is not the district court’s responsibility to sift through the record in order to make appellant’s argument for him.  We therefore decline to address factual issues on which the district court was not asked to rule.


We now turn to the substance of this appeal.  Appellant’s claim arises under the following provision of the Civil Damage Act:

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 (2002).  It is illegal to sell alcohol to a person who is “obviously intoxicated.”  Minn. Stat. § 340A.502 (2002) (“No person may sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person.”).  “The standard for determining whether a person is obviously intoxicated is whether exercising reasonable powers of observation, one sees or should see that the buyer is intoxicated.”  Jewett v. Deutsch, 437 N.W.2d 717, 720 (Minn. App. 1989); see also Strand v. Vill. of Watson, 245 Minn. 414, 422, 72 N.W.2d 609, 615 (1955) (defining obvious intoxication as “such outward manifestation of intoxication that a person using his reasonable powers of observation can see or should see that [another] person has become intoxicated”).

Appellant contends that Klein’s alcohol concentration, the toxicologist’s affidavit, and the alleged hearsay statement by Lodin regarding Klein’s intoxication present circumstantial evidence that is sufficient to create a question of fact regarding obvious intoxication and that the district court erred in concluding otherwise. 

            An alcohol concentration test result may be admitted to assist the trier of fact in determining whether an individual was obviously intoxicated, but “the test is insufficient in and of itself to establish a prima facie case of obvious intoxication.”  Gutwein v. Edwards, 419 N.W.2d 809, 811-12 (Minn. App. 1988).  There must be additional evidence from which obvious intoxication could be inferred.  Id. at 812.  Direct evidence of obvious intoxication is not required to create a genuine fact issue.  Larson v. Carchedi, 419 N.W.2d 132, 134 (Minn. App. 1988).  “[I]ntoxication sufficient to constitute a violation may be established by circumstantial evidence which reasonably supports a jury verdict on the ultimate question.”  Id.  Here, as additional circumstantial evidence, appellant presents a toxicologist’s affidavit opining that Klein would have been obviously intoxicated and Hardel’s statement concerning what Lodin allegedly said. 

Appellant asserts that the district court erred in concluding that Hardel’s statement does not create a question of material fact.  The district court held that the statement is hearsay and “may not be used as substantive evidence . . . .  The statement may only be used as impeachment at trial.”  Thus, the district court ruled that the testimony was insufficient to give rise to a genuine issue of material fact sufficient to defeat summary judgment. 

To defeat a motion for summary judgment, the evidence offered must be admissible at trial.  Minn. R. Civ. P. 56.05; Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976).  A genuine issue for trial “must be established by substantial evidence.”  DLH, 566 N.W.2d at 69-70 (quotation omitted).  What constitutes substantial evidence is not defined, but the standard “has been applied to require evidence sufficient to avoid a directed verdict at trial.”  Id. at 70 (quotation omitted).

Both respondent and the district court appear to conflate the notions of “substantial” and “substantive” evidence.  They are, however, discrete concepts.  Black’s defines “substantial evidence” as “[e]vidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”  Black’s Law Dictionary 580 (7th ed. 1999).  “Substantive evidence,” on the other hand, is “[e]vidence offered to support a fact in issue, as opposed to impeachment or corroborating evidence.”  Id.  Evidence may, therefore, be substantial without necessarily being substantive and vice versa.

We agree with the district court that Hardel’s statement about what Lodin allegedly said is hearsay[4] and may not be introduced as substantive evidence.[5]  Kvanli v. Vill. of Watson, 272 Minn. 481, 486, 139 N.W.2d 275, 279 (1965).  But, as the district court also noted, this statement is admissible to impeach Lodin.  See id. (“A prior inconsistent statement made by a witness not a party is admissible not as substantive evidence but for the purpose of impeachment.”).          

Such use relates to the credibility of the witness.  Except in cases in which certain testimony is patently incredible or unreliable, credibility is a jury issue.  Bardsley v. IPEC, Inc., 382 N.W.2d 221, 226 (Minn. App. 1986).  As the supreme court has stated:

Doubts as to the credibility of the movant’s affiants may lead a court to conclude that a genuine issue of fact exists.  A simple assertion that an affiant’s statements may be disbelieved, however, is insufficient to defeat a motion for summary judgment. The opponent of the motion must demonstrate some basis for an attack on the affiant’s credibility amounting to a positive showing that the affiant’s testimony could be impeached or that he or she might have additional testimony valuable to the opponent.


Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216 (Minn. 1985) (citations omitted) (emphasis added). 

Here, appellant has made a showing that Lodin’s testimony could potentially be impeached.  The final determination regarding witness credibility is for the jury.  Hardel’s testimony arguably presents substantial evidence from which reasonable jurors might draw different conclusions based on their assessment of the credibility of the competing witnesses.  This statement, combined with Klein’s alcohol concentration at the time of his accident and the toxicologist’s affidavit raises—albeit by the slimmest of margins—a genuine issue of material fact, or at least uncertainty about the existence of such an issue.  Thus, summary judgment is inappropriate.  While appellant may have difficulty proving his case to a jury, as this court noted in Larson, “the fact that [appellant] may not prevail at trial is not grounds for denying him his day in court.”  419 N.W.2d at 136.  Accordingly, we reverse the district court’s grant of summary judgment and remand for further proceedings.

            Reversed and remanded.

[1] Lodin testified that he thought that the couple left DaBoars a bit earlier—around midnight. 

[2] In her affidavit, appellant’s expert witness, a toxicologist, opined:

4. That . . . when Leon Klein was last served an alcoholic beverage at [DaBoars] his alcohol concentration would have been approximately 0.235 grams percent.


5. That an individual, such as [Klein] . . . would be obviously intoxicated and any person with reasonable powers of observation would have recognized his intoxication.


6. That an individual, such as [Klein] . . . would be experiencing most, if not all, of the following signs of intoxication: emotional instability; loss of critical judgment; impaired memory, perception and comprehension; impaired reaction time; impaired visual acuity, peripheral vision, glare recovery and depth perception; impaired sensory-motor coordination; impaired balance; and drowsiness.

[3] Appellant listed in his memorandum in opposition to summary judgment, a list of “documents on which opposition is based.”  But he failed to adequately develop for the district court how these documents support many of the arguments he now wishes to raise.

[4] Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.  Minn. R. Evid. 801(c).

[5] The district court also noted that Hardel’s statement is self-serving; however, it is self-serving with respect to Hardel, not appellant.