This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Catherine M. Sinn, as Trustee for the Next of Kin

of Sherri L. DeWald, Deceased,


Merianne Gerving,


Filed September 5, 2006


Parker, Judge*


Todd County District Court

File No. C9-02-904



William D. Harper, Lori L. Burgan, Harper & Peterson, P.L.L.C., 3040 Woodbury Drive, Woodbury, MN  55129-9617 (for appellant)


Daniel A. Beckman, Timothy J. Crocker, Gislason & Hunter, L.L.P., 9900 Bren Road East, Suite 215E, Minnetonka, MN  55343-2297 (for respondent)



            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Parker, Judge.


U N P U B L I S H E D  O P I N I O N


            Respondent Gerving held a birthday party for her 16-year-old daughter, at which there was underage drinking.  Sherri DeWald, daughter of appellant Sinn, was killed as she played on nearby railroad tracks after Gerving asked the party attendees to leave her home.  Sinn brought a wrongful-death action alleging negligent supervision and negligent eviction by Gerving.  Sinn contends that the district court, in granting Gerving’s motion for summary judgment, erred (1) in ruling that Sinn’s claim was preempted by the Civil Damages Act, Minn. Stat. § 340A.801 (2002) and (2) in denying Sinn’s motion to amend her complaint to add a claim for punitive damages.[1]  We affirm.



On appeal from summary judgment, we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Kvidera v. Rotation Eng’g & Mfg. Co., 705 N.W.2d 416, 420 (Minn. App. 2005).  In doing so, we view the evidence in the light most favorable to the nonmoving party and resolve any doubts about the existence of material fact issues against the moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).


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 properly granted summary judgment for respondent Gerving because appellant Sinn’s claims ultimately are based on the illegal furnishing of alcohol and, thus, are preempted by the Civil Damages Act.    

During her daughter’s birthday party, Gerving left for approximately two hours to get videos for the party.  During Gerving’s absence, some of the teenagers attending the party brought alcohol to Gerving’s home.  Along with others at the party, 12-year-old Sherri DeWald consumed alcohol.  Upon her return to the house, Gerving asked the teenagers to leave the premises.  Sinn claims that Gerving’s eviction of the party guests, who were intoxicated, was negligent because it exposed a vulnerable 12-year-old to the danger of nearby railroad tracks.

Our starting point for examining claims based on the illegal furnishing of alcohol is the Civil Damages Act, which was created to hold commercial vendors of alcohol liable for the torts of intoxicated patrons.  Minn. Stat. § 340A.801.  In the early 1970s, the Minnesota judiciary interpreted the Civil Damages Act to create liability for social hosts as well as commercial vendors.  E.g., Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972).  But, based on later amendments to the act, the Minnesota Supreme Court determined that the legislature had preempted “a Civil Damages Act or common-law remedy against social hosts.”  Cole v. City of Spring Lake Park, 314 N.W.2d 836, 840 (Minn. 1982).  In a case involving an intoxicated minor, the court reiterated that “it is clear from legislative and case history that the Civil Damages Act preempts a cause of action against a social host for negligently serving alcohol . . . .”  Holmquist v. Miller, 367 N.W.2d 468, 471 (Minn. 1985).

            Against this backdrop, we decided Stevens v. Thielen, 394 N.W.2d 834 (Minn. App. 1986), review denied (Minn. Dec. 23, 1986), a case with facts similar to those before us here.  Stevens was a wrongful-death action brought by parents of a minor who died after attending a birthday party where there was underage drinking.  The parents of the birthday girl purchased two kegs of beer for her party.  394 N.W.2d at 835.  They then left the minors unsupervised with the alcohol.  Id.  The decedent became belligerent after drinking at the party and was asked to leave.  Id.  He was hit by a car and killed as he walked along a highway a few hundred feet from the party.  Id.

We determined that the plaintiffs in Stevens had no cause of action under the Civil Damages Act.  Id.  We also held that their wrongful-death claim, premised on negligent supervision and negligent eviction, was preempted because the claim ultimately was “based upon an adult furnishing alcohol to a minor and upon his allowing the minor to drink in his home.”  Id. at 837.

            A year later, we decided Beseke v. Garden Ctr., Inc., 401 N.W.2d 428 (Minn. App. 1987).  In Beseke, the plaintiffs alleged negligent supervision on the part of a school district that had organized an event at a bowling alley.  401 N.W.2d at 429.  The bowling alley served alcohol to minors who were evicted and later injured in a car accident.  Id.  The plaintiffs maintained that since the school district had not served alcohol, their claim against the district was not preempted.  Id. at 430.  We held that Civil Damages Act preemption applied, even though the district had not furnished the alcohol, because the claim was related to negligent furnishing of alcohol.  Id. at 431.

In 1990, the legislature amended the Civil Damages Act to allow for limited social-host liability.  Specifically, Minn. Stat. § 340A.801, subd. 6 (2004), states that “[n]othing in this chapter precludes common law tort claims against any person 21 years old or older who knowingly provides or furnishes alcoholic beverages to a person under the age of 21 years.”  In 2000, the legislature amended the act again, creating a statutory cause of action against social hosts who knowingly or recklessly provide alcohol to minors, but excluding any cause of action by an intoxicated minor.  Minn. Stat. § 340A.90, subd. 1 (2004).

In sum, the legislature has removed the preemptive effect of the Civil Damages Act only for common-law claims against adults who knowingly or recklessly furnish alcohol to minors.  Minn. Stat. §340A.801, subd. 6.  Sinn does not maintain that Gerving knowingly furnished alcohol to DeWald.  Moreover, DeWald has no claim under section 340A.90.  The Wrongful Death Act grants “a right of action, that did not exist at common law, to the personal representative of a decedent for the exclusive benefit of the surviving spouse or next of kin of the deceased person, provided the injured party himself could have maintained the action had he lived.”  Beck v. Groe, 245 Minn. 28, 45, 70 N.W.2d 886, 897 (1955).  DeWald could not have maintained an action against Gerving had she survivied.  Thus, Sinn’s wrongful-death action as trustee must fail.

Sinn argues that because a wrongful-death action is a statutory creation, not a common-law action, it survives preemption by the Civil Damages Act.  We addressed the preservation of wrongful-death claims in Stevens, holding that if a wrongful-death claim is based on the illegal furnishing of alcohol, it is preempted.  394 N.W.2d at 837.  Sinn’s claim is distinguishable from the claim in Stevens only because Gerving did not furnish any alcohol.  But that argument was not made before the district court, so we do not address it here.  See Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn. 1988) (holding that an appellate court generally will not consider matters not argued and considered in the court below).  Moreover, Sinn’s claim in this regard fails under Beseke, 401 N.W.2d at 431.


Sinn also argues that the district court erred when it denied her motion to amend her complaint to add a claim for punitive damages.  An appellate court may not reverse a district court’s denial of a motion to add a claim for punitive damages absent an abuse of discretion.  LeDoux v. Nw. Publ’g, Inc., 521 N.W.2d 59, 69 (Minn. App. 1994), review denied (Minn. Nov. 16, 1994).  The analysis above indicates that Sinn’s claim fails as a matter of law.  A claim for punitive damages is not a separate tort and thus cannot stand absent its parent claim.  Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655, 662-63 (Minn. 1989) (“A claim for punitive damages in this state is not an independent tort.”); Kohler v. Fletcher, 442 N.W.2d 169, 173 (Minn. App. 1989) (noting that punitive damages are permitted only when actual or compensatory damages are also present), review denied (Minn. Aug. 25, 1989).  Accordingly, the district court did not abuse discretion in denying plaintiff’s motion to add a punitive damages claim.


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

[1] Sinn also moved the district court for amendment of her complaint to allege a cause of action under Minn. Stat. § 340A.90 (2002), which provides for social-host liability.  Sinn has waived her appeal of the district court’s interpretation of Minn. Stat. § 340A.90.