Alholm v. Wilt, C0-83-1163

• Decision Date: 08 May 1984
• Docket Number: No. C0-83-1163,C0-83-1163
• Citation: 348 N.W.2d 106
• Parties: Terrance ALHOLM, Appellant, v. Richard E. WILT, d.b.a., Lakeside Bar, Respondent, North River Insurance Company, Respondent, William C. Miles, Respondent.
• Court: Minnesota Court of Appeals

Page 106

348 N.W.2d 106

Terrance ALHOLM, Appellant, v. Richard E. WILT, d.b.a., Lakeside Bar, Respondent North River Insurance Company, Respondent William C. Miles, Respondent.

No. C0-83-1163.

Court of Appeals of Minnesota.

May 8, 1984.

Review Denied September 12, 1984.

Syllabus by the Court

1. Appeal was timely when taken within 30 days of an order denying a new trial, even though the time to appeal from the original judgment had expired.

2. Trial court should not have directed a verdict where sufficient evidence was introduced at trial to require submission of the issue of innkeeper's liability to the jury.

3. Evidence supported the jury's verdict in favor of appellant upon the theory of dram shop liability.

Harold R. Fritz, II, Nisswa, for appellant.

Steven A. Hanson, Brainerd, for Richard E. Wilt, d.b.a. Lakeside Bar, and North River Ins. Co.

John W. Person, Brainerd, for Richard E. Wilt d.b.a. Lakes Side Bar.

Heard, considered and decided by POPOVICH, C.J., and FORSBERG and RANDALL, JJ.

OPINION

FORSBERG, Judge.

This is an appeal from an order of the trial court denying appellant's motion for a new trial. Appellant argued in his motion that the trial court erred in directing a verdict in favor of respondent Lakeside Bar on the issue of innkeeper's liability. Appellant has also raised several new evidentiary issues upon appeal which were not raised in his motion for a new trial. Those issues cannot be considered at this time. See Rathbun v. W.T. Grant Co., 300 Minn. 223, 219 N.W.2d 641 (1974). Respondent Lakeside Bar has contested the timeliness of this appeal. Lakeside has also requested review of an order denying its motion for judgment notwithstanding the verdict on the dram shop claim, but has not argued that issue in its brief. We affirm in part, but reverse and remand on the issue of innkeeper's liability.

FACTS

On August 16, 1980, very early in the morning, as appellant was leaving the Lakeside Bar with his wife, he was struck in the face by a glass thrown by respondent Miles, who had followed appellant out of the bar into an adjoining alley. Miles had arrived at the bar earlier in an intoxicated state. He testified that while at the Lakeside Bar he was served five or six screwdrivers. There was testimony by employees and bystanders that he was boisterous, rowdy, insulting, obnoxious, and angry while in the bar. Miles testified that he was not asked to leave the bar. He also admitted that he had frequented the bar several times prior to the night in question, and had been involved in arguments, fights, and "slapping matches" in or about the bar.

ISSUES

I. Was the appeal timely?

II. Did the trial court err in granting a directed verdict in favor of respondent on the issue of innkeeper's liability?

III. Was the verdict in favor of the appellant on the issue of dram shop liability supported by the evidence?

ANALYSIS

I.

Appellant failed to appeal from the judgment in this matter, but after the expiration of the 90-day appeal period, he did appeal within 30 days of an order of the court denying his motion for a new trial.

Respondent Lakeside claims that appellant should not be able to "extend" the time for appeal. However, in Honeymead Products Co. v. Aetna Casualty and Surety Co., 270 Minn. 147, 132 N.W.2d 741 (1965), the court states that an appeal from a post-judgment order denying a new trial is not barred simply because the time to appeal from the judgment has expired. In addition, the present rules of appellate procedure specifically provide that an appeal may be taken from an order denying a new trial (Rule 103.03(d), Minn.R.Civ.App.P.) and that an appeal from an order may be taken within 30 days after service of notice of that order (Rule 104.01, Minn.R.Civ.App.P.).

II.

Rule 50.01, Minn.R.Civ.P., sets forth the basis upon which a court may direct a verdict. It has also been stated that a motion for a directed verdict "admits for the purposes of the motion the credibility of the evidence for the adverse party and every inference which may be fairly drawn from such evidence," although "a court should direct a verdict in favor of the party in whose favor the evidence overwhelmingly preponderates even though there is some evidence in favor of the adverse party." Zinnel v. Berghuis Const. Co., 274 N.W.2d 495, 498 (Minn.1979), quoting J.N. Sullivan & Assoc. v. F.D. Chapman Const. Co., 304 Minn. 334, 231 N.W.2d 87 (1975).

The court directed a verdict in this case on the basis that appellant failed to submit sufficient evidence to establish innkeeper's liability on the part of respondent Lakeside Bar. The elements necessary to prove innkeeper's liability are set forth in Devine v. McLain, 306 N.W.2d 827 (Minn.1981). They are as follows:

(a) The proprietor must be put on notice of the offending party's vicious or dangerous propensities by some act or threat;

(b) The proprietor must have an adequate opportunity to protect the injured patron;

(c) The proprietor must fail to take reasonable steps to protect the injured patron;

(d) The injury must be foreseeable.

There is considerable evidence that Lakeside was put on notice of Miles' dangerous propensities. He was offensive, drunk, boisterous, and had a history of rowdiness and fighting in that bar itself. Several decisions have noted that intoxication is an indicator of potential future unpredictable and aggressive behavior. See, e.g., Klingbeil v. Truesdell, 256 Minn. 360, 98 N.W.2d 134 (1959); Priewe v. Bartz, 249 Minn. 488, 83 N.W.2d 116 (1957); Sylvester v. Northwestern Hospital of Minneapolis, 236 Minn. 384, 53 N.W.2d 17 (1952). As stated in Priewe, supra:

"In Sylvester v. Northwestern Hospital we discussed the disorderly conduct of intoxicated persons and observed, 236 Minn. 389, 53 N.W.2d 20, 'authorities recognize that drunken behavior is unpredictable; also that slight irritations, real or imaginary, may cause outbursts of anger and lead to aggressive acts.' The presence of an intoxicated person upon the premises immediately exposes the proprietor to the hazards of liability resulting from the unpredictable conduct of such person, and when it appears that such intoxicated person might cause a disturbance or harm other patrons, the proprietor is obligated to do something more than request such a person to...