Herrly v. Muzik, C1-84-307
| Decision Date | 02 October 1984 |
| Docket Number | No. C1-84-307,C1-84-307 |
| Citation | 355 N.W.2d 452 |
| Parties | Kenneth R. HERRLY, Appellant, v. Steven John MUZIK, Respondent, Floyd A. Eastlund, d/b/a Forada Liquor Store, Respondent, Edgar J. Paine, d/b/a Reno Inn, Respondent, Jerome and Linda Miller, d/b/a The Barrell Inn, Defendants. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Complicity in a dram shop action is fault to be compared, not an absolute defense for the offending bars.
Keith M. Brownell, Duluth, David Jorstad, Minneapolis, for Herrly.
Thomas J. Reif, Thornton, Hegg, Reif & Johnston, Alexandria, for Muzik.
Michael P. McDonough, McDonough, Geck & Cronan, Minneapolis, for Eastland.
Eric Magnuson, Rider, Bennett, Egan & Arundel, Minneapolis, for Paine.
Logan N. Foremann, III, Stephen S. Eckman, Eckman, Strandness & Egan, P.A., Minneapolis, for amicus curiae MN Trial Lawyers Assoc.
Heard, considered, and decided by LANSING, P.J., and WOZNIAK and FORSBERG, JJ.
In this dram shop action, the three bars involved moved for a partial summary judgment on the ground that the plaintiff was barred from recovery because he had actively participated in the events leading to the drunkenness of the driver of the car in which he was injured. The trial court granted the motion. In an amended order, the trial court certified that there was no just reason for delay and judgment was entered under Rule 54.02 of the Minnesota Rules of Civil Procedure. The plaintiff appeals. We reverse and remand.
Kenneth Herrly and Steven Muzik were friends. On April 17, 1981, they decided to go drinking. Hopping from bar to bar, they bought for each other and drank eight-pack upon twelve-pack, round upon round. By all rights, they should not have been standing, let alone driving, that night. Drive they did, however, with tragic results. Muzik, who was driving, rolled his truck. Herrly fractured his spine and is now a quadriplegic.
Is the complicity defense still valid in dram shop actions after the legislature engrafted comparative fault into the Dram Shop Act?
The Civil Damages Act, better known as the Dram Shop Act, penalizes bars which serve alcohol to persons already intoxicated. It does so by providing that:
Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, or incurs other pecuniary loss 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 or non-intoxicating malt liquors, caused the intoxication of that person, for all damages sustained. * * *
The Dram Shop Act is "both remedial and penal in nature, intended by the legislature both to suppress the illegal furnishing of liquor and to provide a remedy." Martinson v. Monticello Municipal Liquors, 297 Minn. 48, 54, 209 N.W.2d 902, 906 (1973). In keeping with that purpose, the Minnesota Supreme Court interpreted an older, pre-comparative fault version of the statute to bar recovery by one who "voluntarily and affirmatively participate[s] in inducing the intoxication of a person * * *." Heveron v. Village of Belgrade, 288 Minn. 395, 401, 181 N.W.2d 692, 695 (1970); see Martinson, 297 Minn. 48, 209 N.W.2d 902; Turk v. Long Branch Saloon, Inc., 280 Minn. 438, 159 N.W.2d 903 (1968); see also Hempstead v. Minneapolis Sheraton Corp., 283 Minn. 1, 166 N.W.2d 95 (1969) (). This bar to recovery is commonly known as the complicity defense.
The rationale for complicity is that, in enforcing the dual purposes of the Act, a "wrongdoer is not among those persons to whom the legislature intended to provide a remedy * * *." Martinson, 297 Minn. at 54, 209 N.W.2d at 906. In Turk, the Supreme Court noted that "a person who buys drinks for an obviously intoxicated person * * * is at least as much the cause of the resulting or continued intoxication as the bartender who served the consumer illegally." 280 Minn. at 442, 159 N.W.2d at 906.
The respondent bars in this case read the language from Martinson to mean that the injured drinking companion has no cause of action under the dram shop action. A closer examination of the cases reveals, however, that the legal reason for denying recovery to one in complicity is that that person has assumed the risk. The Dram Shop Act is a "strict liability statute." Heveron, 288 Minn. at 400, 181 N.W.2d at 695. Although the court notes that contributory negligence was not then a defense in strict liability (comparative fault is now a defense, however; see later paragraph), "the defense which consists of voluntarily and unreasonably encountering a known danger * * * will, in general, relieve the defendant of strict liability." Id. (quoting W. Prosser, A Handbook on the Law of Torts § 78 (3d ed. 1964)). Dean Prosser's statement was in relation to assumption of the risk. Complicity, the court noted, was an analogous situation. On an assumption of the risk theory, the Heveron court denied recovery to one guilty of complicity.
A number of things have changed in this area of the law since Turk, Heveron, and Martinson: the legislature adopted comparative negligence and then comparative fault; comparative fault analysis was applied to strict liability cases; assumption of the risk was subsumed by comparative fault; and the legislature specifically included comparative fault in the Dram Shop Act. In 1969, the legislature adopted a modified comparative negligence statute. Act of May 23, 1969, ch. 624, § 1, 1969 Minn.Laws 1069, 1069. The statute was amended to become a comparative fault statute in 1978. Act of April 5, 1978, ch. 738, § 6, 1978 Minn.Laws 836, 839-40. Fault is defined as:
acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of the risk not constituting an express consent, misuse of a product and unreasonable failure to avoid an injury or to mitigate damages.
Minn.Stat. § 604.01(1a) (1982) (emphasis added). The definition is expansive enough to include many actions not previously covered by contributory or comparative negligence. Note, The Scope of Comparative Fault in Minnesota, 9 Wm. Mitchell L.Rev. 299 (1984). Although the dram shop action is not specifically mentioned, strict liability, on which Heveron states the dram shop action is...
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Herrly v. Muzik
...On appeal, the Court of Appeals reversed that decision based upon its view of the 1977 amendment to section 340.95. Herrly v. Muzik, 355 N.W.2d 452 (Minn.App.1984). The sole issue presented is whether complicity remains an absolute bar to recovery in Dram Shop actions after the incorporatio......
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Martin v. Heddinger, 84-1139
...submitted defenses. She cites two opinions in her contention that the two defenses mean essentially the same thing. Herrly v. Muzik, 355 N.W.2d 452, 454 (Minn.App.1984) ("the legal reason for denying recovery to one in complicity is that the person has assumed the risk"); Nelson v. Araiza, ......
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