Cole v. City of Spring Lake Park

• Decision Date: 23 March 1982
• Docket Number: 51158 and 51301.,No. 50835,50836,50835
• Citation: 314 NW 2d 836
• Parties: Jeffrey COLE, Appellant, v. CITY OF SPRING LAKE PARK, etc., Defendant, Rudolph Noreen, et al., Respondents, and Candace PILARSKI, Appellant, v. CITY OF SPRING LAKE PARK, etc., Defendant, Rudolph Noreen, et al., Respondents, and Paul L. WETTSCHRECK, Appellant, v. Frank Thomas KOZLOWSKI, Respondent, Roy James Kreuser, Defendant, Thomas A. Schroeder, et al., Respondents, and Anna LIST as Trustee of Frank List, et al., Appellants, v. Patrick J. SCOLES, Respondent, Rolf E. Johnson, Respondent.
• Court: Minnesota Supreme Court

314 N.W.2d 836 (1982)

Jeffrey COLE, Appellant, v. CITY OF SPRING LAKE PARK, etc., Defendant, Rudolph Noreen, et al., Respondents, and Candace PILARSKI, Appellant, v. CITY OF SPRING LAKE PARK, etc., Defendant, Rudolph Noreen, et al., Respondents, and Paul L. WETTSCHRECK, Appellant, v. Frank Thomas KOZLOWSKI, Respondent, Roy James Kreuser, Defendant, Thomas A. Schroeder, et al., Respondents, and Anna LIST as Trustee of Frank List, et al., Appellants, v. Patrick J. SCOLES, Respondent, Rolf E. Johnson, Respondent.

Nos. 50835, 50836, 51158 and 51301.

Supreme Court of Minnesota.

January 22, 1982.

Rehearing Denied March 23, 1982.

Smith, Juster, Feikema, Malmon & Haskvitz and J. Christopher Cuneo, Minneapolis, for Cole and Pilarski.

Jon R. Duckstad, St. Paul, for Wettschreck.

Paige Donnelly Ltd. by Robert Webster, St. Paul, for List.

Lommen, Nelson, Sullivan & Cole and Wells Anderson, Minneapolis, for Noreen.

Alton, Severson & Sovis, Apple Valley, for Kozlowski.

Cousineau, McGuire, Shaughnessy & Anderson, Minneapolis, for Schroeder, et al.

Peterson, Bell & Converse, St. Paul, for Scoles.

Reding & Votel, St. Paul, for Johnson.

Meshbesher, Singer & Spence and Carol Grant, John P. Clifford and Gerald J. Seibel, Minneapolis, for Minn. Trial Lawyers.

Considered and decided by the court en banc.

WAHL, Justice.

The question raised by each of the four appeals we consider here is whether the legislature has preempted a common-law cause of action for negligence against a social host who furnishes liquor to an intoxicated guest where the guest later causes injury to a third party as a result of being intoxicated. Jeffrey Cole v. City of Spring Lake Park, et al., S.Ct. File No. 50835, and Candace Pilarski v. City of Spring Lake Park, et al., S.Ct. File No. 50836, consolidated by order of this court dated January 22, 1980, and argued orally, raise the additional issue as to whether a cause of action based on breach of an assumed duty lies regardless of preemption. Anna List as Trustee of Frank List, Anna List, Marilyn Schrader, Frank List, Jr., and Lana Lewis v. Patrick J. Scoles and Rolf E. Johnson, S.Ct. File No. 51301, raising the liability of the social host question in the context of a wedding reception, and Paul L. Wettschreck v. Frank Thomas Kozlowski, et al., S.Ct. File No. 51158, raising the question in a "kegger" context, were considered en banc without oral argument on the same date that Cole and Pilarski were argued. In each case, the court below dismissed the complaint for failure to state a cause of action.

Because our analysis of the history of the Minnesota Civil Damages Act, Minn.Stat. § 340.95 (1978) (Dram Shop Act), including its amendment in 1977, ch. 390, § 1, 1977 Minn.Laws, 887, 887 (1977 amendment), persuades us that the Minnesota legislature has preempted any action against social hosts who give liquor to guests, we affirm.

The facts in Cole and Pilarski are these: Jeffrey Cole and Candace Pilarski were riding in Cole's pickup truck in the northbound lane of Highway 65 shortly after 7 p. m. on December 19, 1977. The vehicle was hit head-on by a car driven by LaMont C. Bookey which was headed south in the northbound lane. A third vehicle hit plaintiffs' vehicle from behind. Plaintiffs were severely injured. Pilarski has continuing disabilities, while Cole has permanently lost the vision in his left eye.

Bookey had a blood alcohol content of 0.24% shortly after the accident. He had spent most of the day drinking, starting with beer and whiskey at home in the morning, and then had had more beer and whiskey at the University Park Bar and Lounge. In the early afternoon, he drove to the home of his sister and brother-in-law, Shirley and Rudolph Noreen, in Ham Lake. The Noreens were aware of Bookey's history of heavy alcohol consumption. When Bookey wanted a drink immediately upon arrival at the Noreens' home but had no money to purchase it, Bookey drove Mrs. Noreen to a local liquor store, where she purchased beer and whiskey or brandy for him. On returning to the Noreens' home, Bookey drank two or three beers and two or three shots of liquor and became loud and argumentative as he became more intoxicated. Mr. Noreen took the liquor away from Bookey, causing even more argument. Mr. Noreen then asked Bookey to leave, even though Bookey knew he was intoxicated and had asked to stay. Bookey left, and the Noreens agreed that he was intoxicated when he left. The time at which Bookey departed from the Noreens' home is unclear. The accident occurred at 7:15 p. m.

Cole and Pilarski brought suit against Bookey, the City of Spring Lake Park, which operated the University Park Bar and Lounge, and the Noreens. They settled with Bookey on October 12, 1978, and with the City of Spring Lake Park on October 22, 1979. It is from the order of the Anoka County District Court, dated September 25, 1979, dismissing their common-law causes of action against the Noreens that they appeal. The court, in dismissing their actions, expressed doubt with regard to the preemption issue but declined to extend the common law to permit recovery in tort for negligence.

In Wettschreck, Wettschreck's claims arose out of an automobile accident in the early morning hours of July 29, 1978, when the automobile driven by defendant Frank Kozlowski hit the parked car in which Wettschreck was sitting. This accident occurred following a party, a "kegger," hosted by Thomas and Michael Schroeder at the home of their parents in St. Paul. Several persons contributed to the cost of the keg of strong beer, while other people attending the party brought their own liquor. No special invitations were issued, but those who heard about the party were "invited." Defendant Kozlowski met some friends, heard about the party, and drove to the party with defendant Kreuser in Kreuser's car. Kozlowski drank some beer that he had brought and a number of glasses of beer from the keg furnished by the Schroeders.

About midnight, Kozlowski, driving Kreuser's car, left the party with Thomas Schroeder to find "any girls that would want to come out and drink for a while." They stopped to buy more beer and to pick up a girl Kozlowski knew. Kozlowski continued driving while the car's occupants drank more beer. The accident with the Wettschreck vehicle occurred shortly thereafter. The Kreuser vehicle was totally demolished; Wettschreck sustained the injuries on which this suit is based.

The Ramsey County District Court, assuming as true that Kozlowski was served free beer from the Schroeder's keg when he was obviously drunk and one or both Schroeders knew he was drunk, dismissed the complaint against the Schroeders. The court concluded that Kozlowski and Thomas Schroeder were not engaged in a joint enterprise and that the legislature had preempted the field and provided that social hosts have no liability for negligently furnishing liquor to their guests.

The List case arose from an automobile accident on September 22, 1979, in which decedent Frank List was fatally injured when his car was struck by a vehicle driven by Rolf E. Johnson. Johnson was intoxicated. He had obtained the liquor, of an unknown amount and kind, as a guest at a wedding reception for Michael Scoles, hosted by defendant Patrick Scoles. The wedding invitation read "Beer and set ups BYOB." For the purposes of this appeal, Johnson admits he was intoxicated. Scoles and Johnson both admit that the liquor was provided gratuitously by Scoles and that no business relationship between Scoles and Johnson existed.

Anna List, as trustee, brought suit against Johnson and the Scoleses, claiming that the Civil Damages Act abolished only "dram shop" liability and that, to the extent it purported to abolish common-law liability, it was unconstitutional. The Ramsey County District Court, finding the Act constitutional, followed its decision in Wettschreck and entered summary judgment, dismissing the complaint against Patrick Scoles. List appeals from that order and judgment.

Has the legislature, by its 1977 amendment of the Civil Damages Act, preempted any action against social hosts who furnish liquor to an intoxicated guest where the guest later causes injury to a third party as a result of being intoxicated? The relevant portion of the Civil Damages Act reads:

INJURIES CAUSED BY INTOXICATION, CIVIL ACTIONS.

Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling or bartering intoxicating liquors, caused the intoxication of such person, for all damages, sustained; and all damages recovered by a minor under this section shall be paid either to such minor or to his parent, guardian, or next friend, as the court directs; and all suits for damages under this section shall be by civil action in any court of this state having jurisdiction thereof. * * *

Minn.Stat. § 340.95 (1980) (emphasis added). The Act had previously read "any person, has a right of action, in his own name, against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person," but was amended by the Minnesota legislature in 1977 to delete the words "or giving." Act of June 2, 1977, c. 390, § 1, 1977 Minn.Laws 887, 887 (hereinafter 1977 Amendment). It is the position of appellants and of amicus curiae Minnesota Trial Lawyers Association, that, because "giving" was deleted from the statute, the Civil Damages Act is silent on its face in regard to liability of social hosts and that, therefore, a common-law remedy is available for injury caused by the social host's wrongful conduct. Respondents contend that all aspects of the liquor industry are pervasively regulated by the legislature and that the Civil Damages Act is intended to preempt the field of all other...