This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1579

Larry Michael Blank, et al.,

Appellants,

vs.

Golden Eagle, Ltd., a/k/a Beacon Inn,

Respondent,

Leroy Thomas King, et al.,

Respondents.

Filed December 31, 1996

Affirmed

Forsberg, Judge

[*]

St. Louis County District Court

File No. C894601210

Thomas M. Skare, Newby, Lingren, Carlson & Skare, Ltd., 1219 - 14th Street, Post Office Box 760, Cloquet, MN 55720-0760 (for Appellants)

Steven C. O'Tool, Wintroub, Rinden, Sens & McCreary, 801 Nicollet Mall, Suite 1910, Midwest Plaza West, Minneapolis, MN 55402 (for Respondent Golden Eagle, Ltd.)

Michael W. Haag, Crassweller, Magie, Andresen, Haag & Paciotti, P.A., 1000 Alworth Building, Post Office Box 745, Duluth, MN 55801 (for Respondents Leroy Thomas King, et al.)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Forsberg, Judge.

U N P U B L I S H E D O P I N I O N

FORSBERG, Judge

A truck passenger who was injured from falling out of the box of a pickup truck while being driven home from a bar where he had been drinking, appeals the district court's grant of partial summary judgment dismissing his negligence claims against the truck's owner and driver. The bar seeks review of the district court's order denying its motion for summary judgment on the passenger's family's dram shop claims. We conclude that the district court did not err in dismissing the negligence claims, denying leave to amend the complaint, or denying the bar's motion for summary judgment. We affirm.

FACTS

One Saturday in June 1991 Larry Blank spent several hours drinking beer at the Beacon Inn (a/k/a Golden Eagle) in Hermantown. Blank's sister, Wendy King, stopped by the Inn at approximately six o'clock that evening, after Blank had been there for a while. After observing that her brother appeared intoxicated, King took Blank's keys and drove his car away by herself. Blank remained at the Inn until approximately 8:30 p.m. He left at that time with his sister's husband, Leroy King, and with Leroy's brother, Steven King, both of whom had arrived at the bar sometime after Blank and spent most of the early evening there. Although all three men consumed alcohol at the Inn, Steven King claims to have consumed the least. Both of the King brothers also claim that Blank was intoxicated when the men left the Inn.

Steven King drove the group from the Inn in Leroy King's pickup truck. Leroy King sat in the cab of the truck. Steven King maintains that he asked Blank to join them in the cab, which could seat three people, but Blank refused and jumped into the back of the truck. As they headed toward Leroy King's house, which was located a few blocks from the Inn, Leroy claims that Blank "was sitting on the edge of the pickup box" and was leaning toward the front in order to talk to Steven King through the driver's side window.

When the truck was approximately three blocks from the Inn, the Kings noticed that Blank was no longer sitting in the back of the truck and that he was lying on the road behind them. They were riding on a straight stretch of road at the time of the incident. Steven King claims that he had been driving at approximately 15 miles per hour, because they were approaching a street that they would need to turn onto to reach Leroy King's home.

Blank sustained head injuries from the fall and claims to remember nothing of that day, including the accident itself. Steven King submitted to a breath test after the incident, and his blood alcohol content tested at a level of .05.

Blank subsequently brought negligence claims against Steven and Leroy King. Blank's wife and two children asserted dram shop claims against the Beacon Inn alleging that the bar had illegally served Blank alcohol when he was in an obviously intoxicated state. Blank's wife also alleged damages for loss of consortium. The Blanks later sought to amend their complaint to assert res ipsa loquitur as another possible theory for recovery against the Kings, but the district court denied the Blanks leave to amend.

The Kings and Beacon Inn filed separate motions for partial summary judgment. The district court granted partial summary judgment for the Kings dismissing them as parties from the action, but it denied the Inn's motion for partial summary judgment on the dram shop claims. The Blanks now appeal the district court's grant of partial summary judgment for the Kings. Beacon Inn has filed a notice of review of the district court's order denying the Inn's summary judgment motion.

D E C I S I O N

On appeal from summary judgment, we review (1) whether there are any genuine issues of material fact, and (2) whether the lower court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

I

Blank first challenges the district court's dismissal of his negligence claims against the Kings. In order to prevail on a claim of negligence, a plaintiff must establish the following: "(1) the existence of a duty of care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach of the duty was the proximate cause of the injury." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (citing Schmanski v. Church of St. Casimir, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954)). When the record reflects a complete lack of proof of any one of these elements, summary judgment for a defendant is appropriate. Id.

Automobile drivers owe a duty of reasonable care to their passengers. Lynghaug v. Payte, 247 Minn. 186, 190, 76 N.W.2d 660, 664 (1956). Blank argues, in part, that Steven King breached this duty and caused Blank's injuries by driving at an unreasonably high rate of speed. Yet Blank does not dispute that Steven King was driving on a straight stretch of road at a speed of no more than 15 miles per hour--a reasonable speed under ordinary circumstances--at the time that Blank fell from the truck. Blank argues, however, that his condition as an intoxicated passenger presented an extraordinary circumstance, requiring Steven King to exercise a higher degree of care in operating the truck. The Kings contend that no such special duty exists toward intoxicated passengers. In support of this contention, the Kings cite Stephenson v. Ledbetter, 596 N.E.2d 1369 (Ind. 1992), a similar case in which the Indiana Supreme Court affirmed summary judgment for a truck driver and held that a "passenger's intoxication generally does not place on the driver a special duty of care." Id. at 1372.

As a general rule, "an intoxicated person is required under the law to exercise the same degree of care as a sober person." O'Neal v. Burlington N., Inc., 413 N.W.2d 631, 634 (Minn. App. 1987) (citing Kedrowski v. Czech, 244 Minn. 111, 69 N.W.2d 337 (1955); Olstad v. Fahse, 204 Minn. 118, 287 N.W. 694 (1938)); cf. Hubenette v. Ostby, 213 Minn. 349, 352, 6 N.W.2d 637, 639 (1942) (stating that duty of passenger is "to exercise ordinary care for his own safety")). We believe that, similarly, a driver is not required to exercise a greater degree of care to an intoxicated passenger than he would to a sober passenger.

Viewing the Kings' conduct in light of the applicable standard of care, we conclude that the facts in the record are insufficient to create a genuine issue as to Blank's injuries being caused by a breach of duty by the Kings. At most the record establishes that, at the time that Blank fell from the truck, Steven King was driving with a blood alcohol content of .05 percent. While this fact could be presented in a DWI prosecution as relevant evidence indicating that Steven King was under the influence of alcohol, Minn. Stat. § 169.121, subd. 2 (1994), Blank has presented no concrete evidence demonstrating that Steven King actually drove negligently as a result of his alcohol consumption, causing Blank to fall from the truck. Under these circumstances, we hold that the district court did not err in granting partial summary judgment for the Kings on Blank's negligence claims. See Bob Useldinger & Sons v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993) ("Mere speculation, without some concrete evidence, is not enough to avoid summary judgment."); see also Jonathan v. Kvaal, 403 N.W.2d 256, 260 (Minn. App. 1987) (noting that plaintiff must "demonstrate a 'plausible causal linkage'" in order to create issue for jury) (citation omitted), review denied (Minn. May 20, 1987).

II

Blank next argues that the district court erred in denying him leave to amend his complaint to assert a claim under the doctrine of res ipsa loquitur. The decision to allow the amendment of a pleading is one that is within the discretion of the district court. Utecht v. Shopko Dep't Store, 324 N.W.2d 652, 654 (Minn. 1982). After a responsive pleading has been served, "a party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Minn. R. Civ. P. 15.01. The district court may deny leave to amend a pleading if prejudice may result to the opposing party or if the amendment would serve no legal purpose. Lumberman's Underwriting Alliance v. Tifco, 465 N.W.2d 580, 584 (Minn. App. 1991), review denied (Minn. Apr. 1, 1991). A request for leave to amend a pleading may also be denied "when the additional claim could not survive summary judgment." CPJ Enter. v. Gernander, 521 N.W.2d 622, 625 (Minn. App. 1994) (citations omitted).

Blank's original complaint alleged negligence as the sole basis for recovery against the Kings. Approximately two years after commencing this action, Blank sought leave to amend his complaint to assert against the Kings a claim under the doctrine of res ipsa loquitur. Application of the doctrine requires the existence of the following three conditions:

1. The event must be of a kind which ordinarily does not occur in the absence of negligence;

2. The event must be caused by an agency or instrumentality within the exclusive control of the defendant; and

3. The event must not have been due to any voluntary action or contribution on the part of the plaintiff.

Bossons v. Hertz Corp., 287 Minn. 29, 33, 176 N.W.2d 882, 885 (1970). In addition, the doctrine will not apply "if the accident may reasonably be attributable to one or more causes" for which the defendants are not responsible. Id. at 34, 176 N.W.2d at 885 (citations omitted).

We find that the facts alleged by Blank fail to establish a reasonable basis for the assertion of the doctrine of res ipsa loquitur. In particular, as the Blanks acknowledge by asserting their dram shop claims against Beacon Inn, Larry Blank's injuries could have reasonably been caused by his own actions, i.e., by his failure to keep himself safely inside of the bed of the truck. We therefore conclude that the district court's denial of leave to amend the complaint was not an abuse of discretion.

III

Beacon Inn, by notice of review, challenges the district court's order of May 2, 1996, denying the Inn's motion for partial summary judgment on the Blank family's dram shop claims. In those claims the Blanks allege that Beacon Inn violated Minn. Stat. § 340A.502 (1994), which provides: "No person may sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person." The Inn does not dispute that it sold alcohol to Blank when he was obviously intoxicated. Rather the Inn contends that the evidence, as a matter of law, fails to establish the requisite causal connection between its sale of alcohol to Blank and his subsequent injury. "A moving party is entitled to summary judgment when there are no facts in the record giving rise to a genuine issue for trial as to the existence of an essential element of the nonmoving party's case." Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847-48 (Minn. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325, 106 S. Ct. 2548, 2552, 2553 (1986)). An issue is "genuine," for the purpose of overcoming a motion for summary judgment, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). We agree with the district court's conclusion that the record contains "sufficient evidence upon which a jury could conclude through inference that [Blank's] intoxication was a direct cause of the fall which resulted in his injury." It is undisputed that, at the approximate time of the accident, Larry Blank was intoxicated and had been sitting on the side edge of the bed of the truck while he leaned toward the driver's side window. A jury could reasonably find from these facts that Blank's intoxication impeded him from assuming a safe position in the truck and caused him to fall and sustain injuries. Cf. Lubbers, 539 N.W.2d at 402 (holding summary judgment proper where facts failed to raise inference that third-party defendant's conduct caused plaintiff's injuries). We conclude that under these circumstances the district court properly denied Beacon Inn's motion for summary judgment.

Affirmed.

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