This opinion will be unpublished and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

C6-97-1033

Vicky Dahlstrom, et al.,

as heirs and next of kin of

Jeffrey Hennessey, deceased,

Appellants,

vs.

Associated Hosts of Minnesota, Inc.

d/b/a Bombay Bicycle Club,

Respondent,

Giovanni's Restaurants, Inc.

d/b/a Pasquale's Northtown,

Respondent.

Filed November 25, 1997

Affirmed

Kalitowski, Judge

Anoka County District Court

File No. C39514930

William O. Bongard, Thomas M. Countryman, Sieben, Grose, Von Holtum, McCoy & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402 (for appellants)

Richard A. Lind, William L. Davidson, Lind, Jensen & Sullivan, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent Associated Hosts)

Steven E. Tomsche, Tomsche & Tomsche, P.A., 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent Giovanni's Restaurants)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Forsberg, Judge.[*]

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

KALITOWSKI, Judge

Appellants challenge the granting of summary judgment in favor of respondents under Minn. Stat. §§ 340A.502, 340A.801 (1996), arguing the district court erred in determining there is no Civil Damage Act liability where a defendant does not illegally sell alcoholic beverages. We affirm.

D E C I S I O N

"On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "When a trial court applies statutory language to the undisputed facts of a case, its conclusion is one of law and does not bind this court." Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn. 1995).

The Civil Damage Act provides:

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 (1996) (emphasis added). Thus, if appellants incurred "other pecuniary loss" from the intoxication of the deceased, they only have a potential right to damages against respondent if respondent caused the intoxication by illegally selling alcoholic beverages to the deceased.

No genuine issue of material fact remains regarding whether respondent sold the drinks to the deceased. Appellants acknowledge that "no cash changed hands" and further, that "there is no evidence that Bombay sold alcohol to [the deceased] after hours." They rely on public policy to argue that because Bombay is in the business of selling alcoholic beverages, the plain language of the statute should not apply. We disagree.

Under Minn. Stat. § 645.08 (1) (1996), we must construe statutory words and phrases "according to their common and approved usage." Here, the plain language of Minn. Stat. § 340A.801 allows a cause of action against a person who causes intoxication by illegally selling alcoholic beverages.

If the legislature intended there to be liability for commercial vendors that provide or give alcohol, it could have so provided. Notably, the law at one time did include liability for "giving" or "bartering" alcohol, but the legislature subsequently deleted that language from the statute at issue. See Knese v. Heidgerken, 358 N.W.2d 177, 179 (Minn. App. 1984); Beck v. Groe, 245 Minn. 28, 33, 70 N.W.2d 886, 891 (1955).

Because we agree with the district court that there can be no liability under the Civil Damage Act without a sale of alcohol, we do not address respondent's argument concerning the issue of causation.

Affirmed.

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