This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-1311

 

Victoria Anne DeSanti, et al.,
Respondents,

vs.

Kelly Paul Youngs,

Defendant,

 

and

David Johnson, et al.,
Appellants.

 

Filed January 21, 2003

Affirmed

Wright, Judge

 

Hubbard County District Court

File No. CX00617

 

 

Eric J. Magnuson, Diane B. Bratvold, Rider, Bennett, Egan & Arundel, L.L.P., 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402; and

 

Byron M. Peterson, Tomshe, Sonnesyn & Tomshe, P.A., 610 Ottawa Avenue North, Golden Valley, MN  55422 (for appellants)

 

Gary M. Hazelton, Hazelton & Rodgers, P.C., Woodland Professional Building, 1421 Bemidji Avenue North, Bemidji, MN  56601 (for respondents)

 

 

            Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

O P I N I O N

 

WRIGHT, Judge

 

Respondents Victoria and John DeSanti (the DeSantis) brought a dram shop action against appellants David Johnson and James Kramer, d/b/a The Barn (The Barn) after Victoria DeSanti was injured by an intoxicated driver who purchased alcoholic beverages from The Barn.  The jury found The Barn liable.  The Barn contends that the district court erred by denying its motion for judgment notwithstanding the verdict (JNOV), because the evidence was insufficient to support a finding that it sold alcohol to an obviously intoxicated person.  The Barn also contends that the district court’s award of pecuniary loss damages to John DeSanti was erroneous, because such damages may be awarded only for wrongful death.  We affirm.

FACTS

 

At approximately 7:00 p.m. on August 1, 1999, Kelly Paul Youngs was driving a vehicle that struck and injured Victoria DeSanti as she rode a bicycle on County Road 18, northeast of Park Rapids.  Youngs had been drinking alcohol at The Barn, a bar located approximately three-quarters of a mile from the location of the accident.  After the accident, Youngs was arrested, and his blood alcohol content (BAC) measured .32.

            On the day of the accident, The Barn held a “customer appreciation day.”  Between 200 and 300 people attended.  The Barn’s liquor license does not permit the sale of liquor or strong beer.  Instead, The Barn sells 3.2 beer and permits patrons to bring their own liquor to the establishment.  Patrons may purchase “set-ups,” to mix with their own liquor.

            Youngs testified that he arrived at the The Barn at approximately 12:30 p.m. with friends Jason Dunham and Leslie Scouton, Jr.  Youngs brought a 750-milliliter bottle of Black Velvet whiskey to The Barn.  Youngs testified that he also brought three to four Busch Light beers from his home, which Dunham and Scouton drank.  The Barn’s manager and sole bartender, Melissa Niblick, testified that shortly after Youngs arrived, he purchased two beers and a set-up.  She stated that, in terms of different brands of beer, The Barn sold “just about everything.” 

Niblick testified on direct examination that after this initial purchase, Youngs “came back in the bar two or three times to get more soda, and I think he purchased a couple beers.”  She testified that at the time of the initial purchase and the subsequent purchases, Youngs did not appear to be intoxicated.  On cross-examination, Niblick stated that she sold him only two beers in the initial purchase and that he only bought set-ups after that.

            At trial, Youngs testified that he had eight to ten drinks from the bottle of Black Velvet, and did not recall drinking beer that day.  Although his memory was impaired by his intoxication, Youngs stated that he last remembered that the whiskey bottle was “maybe half to three quarters gone.”  Niblick testified that at 5:30 p.m. or 6:00 p.m., she saw Youngs with the bottle of whiskey, which was half full.  Youngs’s last recollection at The Barn is playing horseshoes at The Barn’s horseshoe pit with Dunham, Kramer, and Ken Getchell.  Kramer testified that he stopped playing horseshoes with Youngs around 2:30 p.m. or 3:00 p.m.  When asked about his level of intoxication at that point, Youngs testified that he “wasn’t doing very good with the horseshoes,” and that he was “[l]anding short, being way off.”  Youngs also testified that although he probably had begun to stagger, he did not recall staggering or slurring his words. 

Youngs drove away from The Barn at approximately 7:00 p.m., at which time the DeSantis were riding their bicycles on County Road 18.  Youngs’s vehicle struck Victoria DeSanti.  Youngs then proceeded down County Road 18, but later returned to the scene of the accident.

Deputy J. T. Harris, who responded to the accident, testified that Youngs was leaning and falling, and that Harris had to “physically hold [Youngs] up.”  John DeSanti testified that, at the scene of the accident, he overheard Youngs state that he “had dr[u]nk eight -- or ten to 18 beers.”  Harris testified that while transporting Youngs from the scene of the accident, he stated that he had just come from The Barn.  Harris interviewed Youngs at the law enforcement center, and Youngs stated that he had been drinking beer and estimated that he had “maybe ten.” 

When Youngs retrieved his car after the accident, he discovered four to six empty Bud Light or Busch Light beer cans in his trunk.  When drinking, it was Young’s habit to put empty cans in the trunk of his car.  The brands of beer found in his trunk were the type Youngs prefers to drink.  Dunham and Scouton both testified that they did not put the cans in Youngs’s trunk.  But Youngs testified it was possible he put the empty cans in the trunk before the day of the accident.  In addition, although he had $75 to $100 in his wallet when he arrived at The Barn, Youngs testified that he discovered that he had lost his wallet and had only “a couple dollars and some change” when he was booked into jail.

Dr. Richard Kingston, a clinical toxicologist, testified as an expert for The Barn.  He stated that drinking three-fourths of the bottle of Black Velvet over the time Youngs had been drinking would be sufficient to produce a BAC of .32 for a person Youngs’s size.  On cross-examination, Kingston agreed that 13 to 14 beers would contain approximately the same amount of alcohol by weight as one-half a bottle of whiskey and admitted that drinking a half bottle of whiskey and 13 to 14 beers would also produce a BAC of .32.  Kingston also testified that, in any event, once Youngs’s BAC reached .20, signs of intoxication would have been evident. 

The DeSantis moved for a directed verdict against Youngs, requesting that the district court find that Youngs negligently operated his motor vehicle and that his negligence was a direct cause of the accident.  The district court granted this motion.  The jury found both The Barn and Youngs negligent and apportioned 50% fault to each.  The Barn moved for JNOV, or in the alternative, for a new trial.  The district court denied this motion.  On June 5, 2002, the district court entered judgment against Kramer and Johnson for $628,274.94, including damages found by the jury, costs, disbursements, and prejudgment interest.  Included in this amount was a $200,000 award to John DeSanti for pecuniary loss.  This appeal followed.

D E C I S I O N

 

The denial of a motion for JNOV is reviewed de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  JNOV is proper when the verdict is manifestly against the entire evidence.  Id.  A reviewing court must affirm the district court’s denial of the motion for JNOV, unless the evidence is practically conclusive against the verdict.  Id.  We consider the evidence in the light most favorable to the prevailing party and we will not set aside the verdict “if it can be sustained on any reasonable theory of the evidence.”  Id.  The decision to grant or deny a new trial lies “within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion.”  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

On appeal from a denial of a motion for a new trial, an appellate court should not set aside a jury verdict unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.

 

Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (quotation omitted). 

            An individual who is injured by an intoxicated driver may bring an action under the Civil Damage Act against an entity that illegally sold alcohol to the intoxicated person.  Minn. Stat. § 340A.801, subd. 1 (2002).  It is illegal to sell alcohol[1] to a person who is “obviously intoxicated.”  Minn. Stat. § 340A.502(2002). 

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) (citing Strand v. Vill. of Watson, 245 Minn. 414, 422, 72 N.W.2d 609, 615 (1955)). 

            The Barn argues that the district court erred in denying its motion for JNOV or a new trial, because the evidence was insufficient to support the jury’s verdict.  Specifically, The Barn asserts that the circumstantial evidence offered cannot support a reasonable inference that an illegal sale occurred.  The Barn also argues that the district court erred in instructing the jury that damages included the pecuniary loss of John DeSanti, because pecuniary loss can only be awarded for wrongful death and cannot be awarded for personal injury.  We disagree, and conclude that circumstantial evidence supports a reasonable inference that The Barn sold Youngs alcohol while he was obviously intoxicated, and that pecuniary loss damages apply in this case.

1.         Illegal Sale

A.         Obvious intoxication

            Our careful review of the record, considering the evidence in the light most favorable to the verdict, leads us to conclude that it was reasonable for the jury to infer that Youngs was showing outward signs of intoxication several hours before he left The Barn.  We base this conclusion on (1) the testimony about Youngs’s deterioration in motor skills while at The Barn, (2) the evidence of Youngs’s BAC when he was arrested, and (3) the toxicologist’s testimony regarding the level of BAC at which Youngs would have shown signs of intoxication. 

Youngs testified that he noticed his ability to throw horseshoes declined once he began consuming alcohol.  He “wasn’t doing very good with the horseshoes,” and he was “[l]anding short, being way off.”  Youngs also admitted that he was probably staggering while playing horseshoes with Kramer, Dunham, and Getchell.  Kramer testified that he stopped playing horseshoes between 2:30 p.m. and 3:00 p.m.  The DeSantis argue that the jury, therefore, could reasonably infer that Youngs was showing signs of intoxication as early as 2:30 p.m.  The Barn counters that Youngs’s testimony regarding his diminished ability to play horseshoes is not sufficient to show that he was obviously intoxicated.  But the testimony of Youngs was not the only evidence available for the jury’s consideration.

Dr. Kingston’s testimony that Youngs would have been showing obvious signs of intoxication after his BAC reached .20 further supports the inference that those observing Youngs would have noticed that he was intoxicated.  After Youngs was arrested, his BAC was .32.  Given the amount of alcohol necessary to elevate Youngs’s BAC from .20 to .32, it is reasonable to infer that Youngs was showing signs of intoxication for a significant period of time before he drove away from The Barn at approximately 7:00 p.m.  Taken as a whole, the testimony presented helps to define the length of that period.

The testimony of Youngs and the toxicologist support the jury’s inference that Youngs was exhibiting signs of intoxication long before he left The Barn.  Viewing all of the evidence in the light most favorable to the verdict, we conclude that the jury could have reasonably inferred that Youngs was staggering and otherwise showing signs of intoxication at 2:30 p.m. on the day of the accident, and continued to show signs of intoxication throughout the day. 

B.         Sale

That The Barn only sold beer is undisputed.  The Barn argues that because there was no evidence that Youngs purchased beer while obviously intoxicated, a reasonable inference of an illegal sale is not possible.  In the alternative, The Barn argues that the evidence makes it equally likely that Youngs did not consume beer at The Barn, and, therefore, the jury’s verdict cannot be sustained.  We disagree.  Viewing the evidence in the light most favorable to the verdict, it is reasonable to infer, based on the totality of the circumstantial evidence, that Youngs consumed beer that he purchased from The Barn. 

“Where circumstantial evidence reasonably permits different inferences, the choice of the inference to be drawn rests with the factfinder.”  Fogarty v. Martin Hotel Co., 257 Minn. 398, 403, 101 N.W.2d 601, 605 (1960). 

In order to support a particular verdict, circumstantial evidence need not be such that it must exclude every other theory, but the theory embraced by the verdict must outweigh any conflicting inferences. 

 

Republic Nat'l Life Ins. Co. v. Marquette Bank & Trust Co., 312 Minn. 162, 168, 251 N.W.2d 120, 124 (1977).

Because we must view the evidence in the light most favorable to the verdict, we must conclude that Youngs drank the least amount of whiskey demonstrated by the testimony — one-half of the bottle.  Youngs himself testified that his last memory is of the bottle one-half to three-fourths empty.  In addition to the testimony of Youngs, Niblick testified that at 5:30 or 6:00, she saw Youngs with the bottle of whiskey and that it was half full.

Along with the evidence that he drank one-half of the bottle of whiskey, we must consider how Youngs’s BAC reached .32.  Dr. Kingston testified that 13 to 14 beers would contain the same amount of alcohol as one-half of the bottle of whiskey, and that consuming both would have brought Youngs’s BAC to at least .32.  The jury could infer from this testimony that one-half of the bottle of whiskey would not be sufficient to bring Youngs’s BAC to .32.  The expert testimony supports the conclusion that Youngs had to consume alcohol from some source other than his own whiskey in order to reach a .32 BAC.  From the evidence presented, beer sold by The Barn was the only alternative alcohol source available to Youngs. 

Deputy Harris testified that when he arrested Youngs, Harris asked Youngs a series of questions.  Harris recounted the exchange, including Youngs’s responses, for the jury:

A         Do you have any physical disabilities?  He said no.  Have you been involved in an accident?  Yes I have.  Were you injured?  He said no.  Were you drinking?  Yes.  Where?  The Barn.  How many?  Maybe ten.  What have you been drinking?  Beer.

Q         And do you recall him telling you that, that he was drinking beer?

A         Yes. 

Q         And he was drinking beer at The Barn?

A         Yes.

 

Youngs admitted at trial that he could think of no reason that he would not have told the deputy the truth.  Considering the circumstantial evidence that Youngs consumed beer —the testimony of both Youngs and Dr. Kingston — we must decide whether the evidence permits an inference that The Barn sold that beer to Youngs while Youngs was intoxicated.

Niblick testified that although she sold Youngs beer, when she did, he was not obviously intoxicated.  Niblick, however, was the only bartender for the 200 to 300 people in attendance at The Barn.  On cross-examination, Niblick testified that she could not remember each sale, and the jury was free to conclude that she did not remember seeing Youngs intoxicated when she sold him the beer.

As for the three or four beers that Youngs and his friends brought with them to The Barn, Youngs testified that Dunham and Scouton drank them.  In addition, neither Dunham nor Scouton bought beer for Youngs.  In his trunk, Youngs found four to six empty beer cans of his preferred brand, which neither party disputes that The Barn sells.  He is also unable to account for almost all of the $75 to $100 he brought to The Barn.  Further, based on evidence of the number of beers Youngs consumed[2] and his lapse of memory, we find it reasonable to conclude that he purchased at least one of the 10 to 18 beers after 2:30 p.m. and shortly before 7:00 p.m., the period of time when signs of his intoxication were obvious.

The Barn asserts that its theory of the events of the day is equally as plausible as the DeSantis’s.  The Barn, however, presents no alternative theory that explains how Youngs obtained the beer that the record, when viewed in the light most favorable to the verdict, shows he consumed.  Youngs admitted to having ten beers, and the toxicologist admitted that had Youngs drunk half of the bottle of whiskey, consuming 13 to 14 beers would be necessary to bring his BAC to approximately .32.  Considering the number of beers the record shows Youngs consumed, we conclude that it is more likely than not that he purchased at least one of these beers from The Barn during the four-and-one-half-hour period of the afternoon and evening that he was obviously intoxicated. 

            The Barn relies on the supreme court’s decision in Hartwig v. Loyal Order of Moose, 253 Minn. 347, 362, 91 N.W.2d 794, 805 (1958), where the court held that dram shop liability could not be established in the absence of evidence of an illegal sale.  In Hartwig, Emil Hellen’s vehicle struck wrecker-driver Lee Hartwig while Hartwig was retrieving a car that had been driven off a highway.  Id. at 351, 91 N.W.2d at 799.  Hartwig eventually died, and on behalf of herself and her son, his widow sued the bars where Hellen had been drinking before the accident.  Id. at 350-51, 91 N.W.2d at 798-99.  In her case brought under the Civil Damage Act, the jury returned a verdict for Hartwig’s widow and son.  Id. at 350-51, 91 N.W.2d at 798.  Some of the defendants moved for JNOV, and their motion was denied.  Id. at 351, 91 N.W.2d at 799.  The supreme court reversed the judgment.  Id. at 367, 91 N.W.2d at 808. 

            Hellen, the driver of the vehicle, testified that at two of the bars he visited, he “had” drinks, but did not testify that he purchased any drinks.  Id. at 352-53, 91 N.W.2d at 799-800.  The supreme court concluded that there was no competent direct or circumstantial evidence of an illegal sale.  As to the absence of competent direct evidence, the supreme court determined:

There is in the record no direct testimony that either of the bars was open for business except to dispense 3.2 beer on Sunday night April 24, 1955; no testimony as to any club representative or bartender dispensing liquor over or from the bar, or otherwise; and no evidence as to who such offending persons, employees, or bartenders were or how and when they committed such violations.  Local members might well have purchased mix at either of the bars and proceeded to supply liquor from their own private stocks or pocket flasks. 

 

Id. at 362, 91 N.W.2d at 805.  As to the circumstantial evidence, the supreme court reasoned that

[c]ircumstantial evidence may help to establish the essential fact, but there must be evidence from which it reasonably may be inferred that the essential fact did exist.

 

Id. at 362, 91 N.W.2d at 805.

            The facts in Hartwig are distinguishable, because, in this case, there was significantly more direct and circumstantial evidence of the essential facts necessary to support the verdict.  In Hartwig, unlike the instant case, there was no testimony presented that the social clubs used a bartender to serve drinks when Hellen consumed alcohol.  The supreme court stated that “[t]he record would indicate that there was no dearth of responsible membership at either lodge or club on the night in question.”  Id.  Further, Hellen testified that others purchased alcohol for him.  Id. at 353, 91 N.W.2d at 800.  This fact contrasts with the evidence that no one purchased beer for Youngs, and there was no source other than The Barn for the beer Youngs consumed.  Although, like Hellen, Youngs admitted that he had, rather than purchased, beer at The Barn, there is considerably more circumstantial evidence in this case from which the jury could have reasonably inferred an illegal sale.  As discussed above, all of the individual pieces of circumstantial evidence combine to provide a much more thorough record than was present in Hartwig. 

We might agree with The Barn’s reliance on Hartwig if Youngs had become intoxicated at a social club where there was no evidence of a bartender on duty and where Youngs testified that others purchased alcohol for him.  Here, the jury could infer that Youngs consumed beer at a bar where there was a bartender who admitted selling beer to Youngs, and where there was no other evidence of how Youngs obtained beer. 

Indeed, no single person’s testimony presents direct evidence of an illegal sale.  But when all of the circumstantial evidence is viewed together and in the light most favorable to the verdict, we conclude that the totality of the evidence permits a reasonable inference that Youngs was obviously intoxicated for several hours on the afternoon of the accident and that, during this time, he purchased alcohol from The Barn.  This is a fact-intensive and close case.  From our painstaking review of the evidence, we conclude that the evidence is not practically conclusive against the verdict, and the verdict is supported by a reasonable theory of the evidence.  The district court’s denial of JNOV, therefore, was not erroneous.  See Pouliot, 582 N.W.2d at 224.  We also conclude that the verdict is not “manifestly and palpably contrary to the evidence,” thereby warranting a new trial.  See Raze, 587 N.W.2d at 648.  We, therefore, affirm the district court’s denial of The Barn’s motion for JNOV or a new trial.

2.         Pecuniary loss damages

            The Barn also argues that the $200,000 judgment in favor of John DeSanti was an error, because pecuniary loss does not apply to this personal injury case.  Specifically, The Barn argues that pecuniary loss should only apply to Civil Damage Act cases where the individual for whom a loss is claimed is deceased.  The statute provides, in pertinent part,

[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) (emphasis added).  “Pecuniary loss damages include loss of aid, advice, comfort, and protection.”  Coolidge v. St. Paul Fire & Marine Ins. Co., 523 N.W.2d 5, 6 (Minn. App. 1994) (citation omitted).

We squarely addressed this issue in Coolidge, where the children of parents injured by an intoxicated driver sought review of the district court’s summary judgment determination that pecuniary loss damages were only recoverable in death cases under the Minnesota Civil Damage Act.  We reversed the determination and rejected the argument now advanced by The Barn, stating that “[t]he term ‘pecuniary loss’ has a common and approved definition, which contains no limitation to ‘death’ cases.”  Id. at 7.  The statutory language analyzed in Coolidge has not changed.  See Minn. Stat. § 340A.801, subd. 1 (2002).

               Arguing for an analysis of legislative intent, the Barn asserts that the legislature added the pecuniary loss language to the Civil Damage Act in an effort to conform it with Minn. Stat. § 573.02, Minnesota’s wrongful death statute, without intending to enable such recovery where death does not occur. 

When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.

 

Minn. Stat. § 645.16 (2002).  We conclude that the statute as it exists contains no ambiguity as to how pecuniary loss damages may be applied.  Further, even if we did determine ambiguity existed, we noted in Coolidge that the legislature’s desire to bring the Civil Damage Act “into conformity with” the Wrongful Death Statute

did bring the types of recovery under the acts into conformity.  We see no basis, however, for also bringing the acts’ purposes and scopes into conformity.

 

Id. at 7 n. 1.

            In light of our holding in Coolidge, we are not persuaded by The Barn’s argument.  “The doctrine of stare decisis directs that we adhere to former decisions in order that there might be stability in the law.”  Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000) (citation omitted).  This case requires such adherence.

Affirmed.