This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).





James P. Carey, as Trustee for Heirs & Next-of-Kin of
Erik Richard Marwick, deceased, et al.,


Joshua Daniel Lofquist, et al.,

Starkovich Distributing, Inc.,

Silver Creek Liquor Co., Inc.,
d/b/a Silver Creek Liquor,

J & H Distributing, Inc.,
d/b/a University Liquors,

Coborn’s Inc., d/b/a Cash Wise Liquor,

Red Carpet Bottle House, Inc.,
d/b/a Shanty Bottle Shop,

Filed December 11, 2007


Worke, Judge


St. Louis County District Court

File No. 69HI-CV-05-127


Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, MN 55402; and


Gordon C. Pineo, Deal & Pineo, P.A., 202 South Fourth Street, P. O. Box 1253, Virginia, MN 55792 (for appellants)


John D. Kelly, Gabriel D. Johnson, Hanft Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802 (for respondent Silver Creek Liquor Co., Inc., d/b/a Silver Creek Liquor)


Michael R. Quinlivan, Cronan, Pearson, Quinlivan, P.A., 1201 Marquette Avenue, Suite 110, Minneapolis, MN 55403 (for respondent Coburn’s Inc., d/b/a Cash Wise Liquor)


Larry C. Minton, Law Offices of Larry C. Minton, Ltd., 320 East Howard Street, Hibbing, MN 55746 (for respondent J&H Distributing, Inc., d/b/a University Liquors)


Jarvis C. Jones, Blackwell Burke, P.A., 33 South Sixth Street, Suite 4600, Minneapolis, MN 55402 (for respondent Red Carpet Bottle House, Inc., d/b/a Shanty Bottle Shop)


            Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Crippen, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from summary judgment in a dram-shop action against retail liquor vendors, appellants argue that the district court erred as a matter of law in concluding that Restatement (Second) of Torts § 433B (1965) does not apply and that respondents did not have a duty to prove that they did not sell the illegally purchased beer.  Respondent Shanty Bottle Shop also argues that the action against it should have been dismissed because it was not given notice within 240 days after the formation of an attorney-client relationship, as required by the Minnesota Civil Damages Act.  Because section 433B has not been adopted by Minnesota courts, it does not apply.  We further conclude that respondent Shanty Bottle Shop received notice within the required 240 days, and we affirm. 


Summary Judgment

“On an 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 (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 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 (Minn. 1993) (citation omitted).

            On May 17, 2004, Erik Marwick died as a result of injuries sustained in a car accident while he was a passenger in a car driven by his friend Joshua Lofquist.  At the time of the crash, Marwick and Lofquist had been drinking heavily for several hours despite being underage.  Appellants James P. Carey, as trustee for heirs and next of kin of Erik Richard Marwick, deceased, et al., argue that under Restatement (Second) of Torts  § 433B (1965), a prima facie case for the illegal sale of liquor to a minor occurred at each respondent liquor store.  Appellants further argue that having established that a tortious act occurred, under section 433B, the burden to prove which entity sold the beer Lofquist consumed shifts to respondents Silver Creek Liquor Co., Inc., d/b/a Silver Creek Liquor (Silver Creek); J & H Distributing, Inc, d/b/a University Liquors (University Liquors); Coborn’s Inc., d/b/a Cash Wise Liquor (Case Wise); and Red Carpet Bottle House, Inc., d/b/a Shanty Bottle Shop (Shanty), and the summary-judgment motions should have been denied. 

            Under the Minnesota Civil Damages Act, “[i]t is unlawful for any person: (1) to sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age[.]”  Minn. Stat.  § 340A.503, subd. 2(1) (2006).  It is undisputed that the beer that Marwick and Lofquist had been drinking was obtained from Mike Leinonen, who received it from Paul Starkovich.  Starkovich was underage when he purchased the beer.  On May 17, Marwick and Lofquist began drinking the beer in Lofquist’s car as they traveled to a trailer owned by a relative of Lofquist.  By the time they reached the trailer, they had each consumed approximately ten cans of beer.  At the trailer, they drank a few more beers and finished off a half-liter of rum they found in the trailer.  Later that afternoon, they left the trailer to meet a friend, and on their way Lofquist lost control of the car and crashed.  Marwick was ejected from the car and died as a result of his injuries. 

            In March 2005, appellants entered into a fee agreement in a lawsuit against respondent Starkovich Distributing, Inc., the liquor distributor run by Starkovich’s father.  During his deposition, Starkovich stated that the cases of beer he sold to Leinonen were leftovers from several purchases he made in the past for his personal consumption.  Starkovich named four liquor stores (respondents) where he was able to purchase alcohol despite being underage.  Starkovich ranked the liquor stores in order of the probability that he obtained the beer there—Cash Wise, Shanty, University Liquors, and Silver Creek—however, he could not say where he purchased the beer that ended up in the hands of Marwick and Lofquist.  Appellants served notice of dram-shop claims against respondent liquor stores and commenced an action against them for the death of Marwick.  See Minn. Stat. § 340A.801, subd. 1 (2006). 

            Appellants’ argument is based on the theory of alternative liability.  The alternative-liability theory was first announced in Summers v. Tice, 199 P.2d 1 (Cal. 1948), and is now set out in Restatement (Second) of Torts § 433B(3) (1965):

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.


“The theory of alternative liability has not been adopted in Minnesota.”  Bixler by Bixler v. Avondale Mills, 405 N.W.2d 428, 430 (Minn. App. 1987), review dismissed (Minn. June 30, 1987).  This court has expressly rejected Summers and, therefore, the theory of alternative liability.  Leuer v. Johnson, 450 N.W.2d 363, 365 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990).  In Leuer, this court examined Minnesota’s refusal to adopt the rule set forth in Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944), “which extended res ipsa loquitor to a plaintiff who had been injured while unconscious on the operating table by an unidentifiable instrumentality in the control of an unidentifiable tortfeasor.”  Id. at 364.  We held in Leuer that “Minnesota’s rejection of Ybarra, on which Summers is based, must be interpreted to weaken further any reliance formerly placed upon Summers.”  Id. at 366.  “[B]ecause Ybarra has been consistently rejected by the Minnesota Supreme Court, we must reject Summers as well.”  Id. at 365.  The adoption of the theories set forth in Ybarra and Summers is a task more appropriately left to the supreme court.  See Hanzel v. Good Earth, Inc., 371 N.W.2d 72, 75 (Minn. App. 1985) (“No Minnesota case has yet adopted the [Ybarra] theory.  Such a change in Minnesota law is more appropriately left to the supreme court.”).  Finally, appellants’ argument that Minnesota law permits shifting the burden of proof to respondents based on the holding in Mathews v. Mills, 288 Minn. 16, 178 N.W.2d 841 (1970), fails.  In Mathews, the Minnesota Supreme Court adopted Restatement (Second) of Torts  § 433B(2), dealing with apportionment of liability; the theory of alternative liability is found in section 433B(3), which has not been adopted by Minnesota courts.  288 Minn. at 22, 178 N.W.2d at 845.

            In light of the fact that Minnesota has not adopted the theory of alternative liability, the burden of proving each respondent’s liability remains with appellants.  Appellants cannot meet that burden here because appellants cannot prove which respondent sold the beer that was eventually consumed by Lofquist, resulting in Marwick’s death.  Because there are no genuine issues of material fact and the district court did not err in its application of the law, the granting of respondents’ summary judgment motions was appropriate.


            In its notice of review, respondent Shanty Bottle Shop argues that appellants do not have a viable cause of action against it because appellants failed to comply with the 240-day notice requirement under the Minnesota Civil Damages Act.  Shanty’s argument is a question of statutory construction, which is reviewed by this court de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  “[W]ords and phrases are construed according to . . . their common and approved usage; but technical words and phrases and such others as have acquired a special meaning . . . are construed according to such special meaning.”  Minn. Stat. § 645.08(1) (2006). 

            “In the case of a claim for damages, the notice must be served by the claimant’s attorney [upon a licensed retailer of alcoholic beverages or municipal liquor store]within 240 days of the date of entering an attorney-client relationship with the person in regard to the claim.”  Minn. Stat. § 340A.802, subd. 2 (2006).  The issue here is whether the notice statute on the claim against Shanty began to toll when appellants retained counsel in the initial suit against respondent Starkovich Distributing, Inc.  The original dram shop claim, however, did not involve Shanty.  Shanty was served with notice of a dram shop claim on September 28, 2005, one day before appellants entered into a fee agreement for the lawsuit against respondent liquor retailers.  Therefore, the notice requirement was satisfied.


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