Henson v. Uptown Drink, LLC, A17-1066

CourtSupreme Court of Minnesota (US)
Citation922 N.W.2d 185
Docket NumberA17-1066
Parties David Lee HENSON, et al., Respondents, v. UPTOWN DRINK, LLC, Appellant, Assurance Company of America, Respondent.
Decision Date23 January 2019

922 N.W.2d 185

David Lee HENSON, et al., Respondents,

Assurance Company of America, Respondent.


Supreme Court of Minnesota.

Filed: January 23, 2019

Bernie M. Dusich, Ryan T. Gott, Sieben Polk, P.A., Hastings, Minnesota, for respondents David Lee Henson, et al.

Steven E. Tomsche, Beth L. LaCanne, Tomsche, Sonnesyn, & Tomsche, P.A., Golden Valley, Minnesota, for appellant.

Matthew J. Barber, James S. Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

Mark A. Solheim, Kevin T. McCarthy, Larson King, LLP, Saint Paul, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.



This case arises from the death of an off-duty bar employee who was fatally injured while helping other bar employees eject an aggressive patron from a Minneapolis bar. The employee’s family sued the bar for the death, pleading innkeeper-negligence and dram-shop claims. The district court granted the bar’s motion for summary judgment. On the innkeeper-negligence claim, the court determined that the bar owed no duty based on the doctrine of

922 N.W.2d 188

implied primary assumption of risk. On the dram-shop claim, the court decided as a matter of law that the claim failed on the element of proximate cause. The court of appeals reversed and remanded on both claims. We affirm.


Maxwell Henson, an off-duty employee of Uptown Drink, a Minneapolis bar, was fatally injured on the evening of March 23, 2011. The sequence of events that led to his death began when two friends, Nicholas Anderson and Jason Sunby, met for drinks at a restaurant near Uptown Drink. Anderson had been drinking at home before he met Sunby. Both men believe they drank alcohol during their hour and a half at the restaurant. The pair left the restaurant to continue drinking at Uptown Drink.

Over the next two hours, Anderson, by his own estimate, drank between 6 and 10 glasses of beer, along with a couple of shots of hard liquor. Sunby admitted having 12 or 14 drinks that evening.

The record contains a video from Uptown Drink’s surveillance camera covering the approximately 20 minutes before Henson’s fatal injury. The events shown in the video are best described in the present tense.

The video shows Anderson and Sunby drinking frequently from what appear to be glasses of beer and several shot glasses of hard liquor. At 9:24 p.m., Anderson leaves camera view. A server, Natalie Cooper, and an off-duty coworker appear to have a discussion about Anderson and Sunby. Apparently, Anderson sat down at a table with two women he did not know.

In the 11 minutes while Anderson is off camera, Sunby appears to take a shot of liquor, leans forward onto the bar, and struggles for several minutes to keep his balance. At 9:29 p.m., he slips off the bar stool entirely. After steadying himself, Sunby turns and speaks to patrons seated at the bar to his left. They stand up and move away. One of the patrons stated in an affidavit that Sunby "was obviously drunk, he was slurring his speech, he was loud, rude, and was swearing[,] and by his tone it was our impression [Sunby] was trying to incite an altercation." The patron detected "a racial overtone to what [Sunby] was saying."

After moving, a patron signals to bartender Jordan Shaw, who had stepped away, and tells Shaw "that [Sunby] needs to leave" because "he is drunk and out of line." At 9:34 p.m., Shaw takes a glass away from Sunby and tells him to leave. As Shaw is stepping out from behind the bar, there is some physical jostling between Sunby and the patrons until Shaw reaches the group.

At 9:36 p.m., Anderson returns to view, escorted by Frank Thalacker, the general manager of Uptown Drink. Server Cooper had asked Thalacker to intervene with Anderson, because she "thought the women looked uncomfortable" when Anderson sat down at their table. Thalacker asked Anderson to leave the two women alone.

For the next 90 seconds Anderson and Sunby talk while Sunby struggles to put on his coat. Both men appear to be swaying.

At 9:37:45 p.m., as Anderson moves toward the exit, Sunby attempts to punch Thalacker. He misses and tumbles into the bar. Thalacker gets Sunby on his feet and bartender Shaw grabs Sunby from behind. At the same time, Anderson grabs Thalacker from behind. As Thalacker staggers backward, Maxwell Henson, an off-duty bar employee, appears and pulls Anderson off of Thalacker. Henson and Thalacker pull Anderson toward the exit while Shaw, after gaining control of Sunby, follows with

922 N.W.2d 189

Sunby. Approximately 30 seconds elapse between Sunby’s punch and the time Sunby and Anderson exit the bar.

Off camera, as Thalacker, Henson, and Anderson reached the front door of the bar, all three tripped and fell onto the sidewalk. Henson hit his head, was knocked unconscious, and was transported to Hennepin County Medical Center. He suffered a traumatic brain injury and never regained consciousness. He died six days later.

In February 2012, Henson’s family1 sued Uptown Drink, LLC, for innkeeper negligence and violation of the Dram Shop Act, Minn. Stat. §§ 340A.801 –.802 (2018). Uptown Drink moved for summary judgment, arguing that the lawsuit was barred by the Workers’ Compensation Act. After a workers’ compensation judge determined that Henson’s death arose out of and in the course of his employment at Uptown Drink, the district court granted Uptown Drink’s summary-judgment motion. Henson v. Uptown Drink, LLC , No. A15-0493, 2015 WL 9264078, at *2 (Minn. App. Dec. 21, 2015), rev. denied (Minn. Mar. 15, 2016). The court of appeals reversed the district court, holding that the evidence was insufficient to establish that Henson’s death arose out of and in the course of his employment. Id. at *8.

On remand to the district court, Uptown Drink again moved for summary judgment on the innkeeper-negligence and dram-shop claims. The district court granted Uptown Drink’s motion, deciding sua sponte that, although the innkeeper-negligence claim presented "close questions of fact," the doctrine of implied primary assumption of risk applied as a complete bar to recovery. Henson v. Uptown Drink, LLC , No. 27-CV-12-10634, 2017 WL 4220906, at *5 (Henn. Cty. Dist. Ct. filed Feb. 8, 2017). The district court also decided that the dram-shop claim failed on the element of proximate cause, because Anderson’s and Sunby’s intoxication was "too remote" to be the cause of Henson’s injuries. Id . at *4. After supplemental briefing on the applicability of the assumption-of-risk doctrine, the district court denied Henson’s family’s motion to reconsider.

In December 2017, the court of appeals again reversed and remanded to the district court. Henson v. Uptown Drink, LLC , 906 N.W.2d 533, 536 (Minn. App. 2017). The court of appeals held that the district court had improperly applied the doctrine of implied primary assumption of risk "[b]ecause reasonable persons could reach different conclusions on whether Henson had actual knowledge of the particular risks presented." Id . at 540. Even if the doctrine did apply, said the court, there was sufficient evidence for a reasonable fact-finder to conclude that Uptown Drink had enlarged the risk. Id. The court also reversed the grant of summary judgment on the proximate cause element of the dram-shop claim, reasoning that "[i]ntoxication need only be a substantial factor in bringing about the injury." Id . at 543. "Viewed in a light most favorable to [Henson’s family], there is sufficient evidence that intoxication was a substantial factor in causing Henson’s injury, and there is sufficient evidence of a direct link between that intoxication and the injury." Id . We granted review as to both claims.


This is an appeal from a grant of summary judgment, which "is appropriate

922 N.W.2d 190

when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law." Senogles v. Carlson , 902 N.W.2d 38, 42 (Minn. 2017). We review a grant of summary judgment de novo. Commerce Bank v. W. Bend Mut. Ins. Co. , 870 N.W.2d 770, 773 (Minn. 2015). When conducting this review, "we view the evidence in the light most favorable to the nonmoving party ... and resolve all doubts and factual inferences against the moving parties." Rochester City Lines Co. v. City of Rochester , 868 N.W.2d 655, 661 (Minn. 2015). Summary judgment is "inappropriate when reasonable persons might draw different conclusions from the evidence presented." Osborne v. Twin Town Bowl, Inc. , 749 N.W.2d 367, 371 (Minn. 2008) (citation omitted) (internal quotation marks omitted).

Henson’s family pleads two claims. The first is innkeeper negligence. There are four elements to a claim of innkeeper negligence: (1) notice of the offending party’s "vicious or dangerous propensities" by "some act or threat," (2) adequate opportunity for the innkeeper to protect the injured patron, (3) failure on the part of the innkeeper to take reasonable steps to do so, and (4) foreseeable injury. Boone v. Martinez , 567 N.W.2d 508, 510 (Minn. 1997).

Henson’s family’s second claim is under...

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