Holmquist v. Miller, CX-84-371

• Decision Date: 19 June 1984
• Docket Number: CX-84-371,Nos. C7-83-1919,C7-84-84 and CX-84-371,s. C7-83-1919
• Parties: Gerald HOLMQUIST and Helen K. Holmquist, the Legal Guardians and Next of Kin of Barbie Jo Holmquist, deceased; and Gerald W. Holmquist as Trustee for the use and benefit of Gerald W. Holmquist and Helen K. Holmquist, Respondents (C7-83- 1919), v. Gerald MILLER and Harold Miller and Agnes Miller, Appellants, and Kevin Lee Shimmin and Larry Shimmin and Bonita M. Shimmin; East End Bottle Shop, Inc., a Minnesota Corporation, Respondents. Scott Thomas HEMINGSON, Appellant (C7-84-84), v. James GABBERT, Respondent. Russell KNUTSON, Appellant (), v. Barry BARBER, et al., Respondents. Nos. C7-83-1919, C7-84-84 and .
• Court: Minnesota Court of Appeals

Page 47

352 N.W.2d 47

Gerald HOLMQUIST and Helen K. Holmquist, the Legal Guardians

and Next of Kin of Barbie Jo Holmquist, deceased; and

Gerald W. Holmquist as Trustee for the use and benefit of

Gerald W. Holmquist and Helen K. Holmquist, Respondents (C7-83- 1919), v. Gerald MILLER and Harold Miller and Agnes Miller, Appellants, and Kevin Lee Shimmin and Larry Shimmin and Bonita M. Shimmin;

East End Bottle Shop, Inc., a Minnesota

Corporation, Respondents.

Scott Thomas HEMINGSON, Appellant (C7-84-84), v. James GABBERT, Respondent.

Russell KNUTSON, Appellant (CX-84-371), v. Barry BARBER, et al., Respondents.

Nos. C7-83-1919, C7-84-84 and CX-84-371.

Court of Appeals of Minnesota.

June 19, 1984.

Review Granted December 20, 1984.

Syllabus by the Court

1. A social host who furnishes intoxicating liquor to a minor is not liable for damages inflicted by the intoxicated minor under the Civil Damages Act.

2. The Civil Damages Act does not insulate a social host from a common-law negligence action for furnishing intoxicating liquor to a minor in violation of a criminal statute barring the furnishing of liquor to a minor.

Steven W. Schneider, Halverson, Watters, Bye, Downs & Maki, Duluth, for Miller.

George G. Eck, Dorsey & Whitney, Minneapolis, for Hemingson.

Thomas G. Johnson, Wilmar, for Knutson.

Michael Orman, Harper, Eaton, Peterson, Overom & Orman, Duluth, for Holmquist et al.

Kay Nord Hunt, Lommen, Nelson, Sullivan & Cole, Minneapolis, for Gabbert.

Heard, considered and decided by SEDGWICK, P.J., and PARKER and CRIPPEN, JJ.

OPINION

PARKER, Judge.

These cases raise questions about the civil liability of social hosts for damages caused by their furnishing intoxicating liquor to a minor. The common questions raised in these appeals are (1) Is an adult, not a commercial vendor, who sells to or procures intoxicating liquor for a minor liable under the Civil Damages Act for damages caused by the minor's intoxication? and (2) Does the Civil Damages Act preempt a common-law negligence action based on violation of a criminal statute barring the furnishing of liquor to a minor? Hemingson v. Gabbert, Ct.App. No. C7-84-84, raises the additional question, (3) Does a negligence action exist for the alleged breach of a duty to prevent a minor brother-in-law from operating a car while intoxicated?

FACTS

In Hemingson v. Gabbert and Knutson v. Barber, et al., the facts are as follows: Barry Barber, a minor, was visiting with his sister and brother-in-law, James Gabbert. Gabbert knew Barber was a minor. Barber and Gabbert drove to the Woodlake Municipal Liquor Store. Barber gave Gabbert $2 toward the purchase of a 12-pack of strong beer and Gabbert bought the beer. They returned to Gabbert's home and drank the beer; Barber drank about six cans. When Barber drove home in an intoxicated condition, he collided with a vehicle driven by Michael Knutson. Both Scott Hemingson and Russell Knutson were passengers in the Knutson vehicle. Gabbert moved for summary judgment in both cases and the trial court granted his motions.

In Holmquist v. Miller, et al., Ct.App. No. C7-83-1919, the Millers held a party at their residence. It is alleged they furnished intoxicating liquor to a minor. The minor left and, while riding as a passenger in a car driven by another minor who had been served intoxicating liquor at the party, fell out of the car. The driver failed to stop although the temperature was below freezing. The minor died one week later.

The Holmquists, as legal guardians, sued the Millers, the driver and his parents, and the East End Bottle Shop of Duluth. The Millers' motion for summary judgment was denied, but the trial court certified the following three questions to this court under Rule 103.03(h), Minn.R.Civ.App.P.:

(1) When an adult furnishes, or permits to be furnished, alcoholic beverages to a minor in the home of the adult, is the adult immune from all civil liability and responsibility for damages caused to others by the actions of the intoxicated minor?

(2) Does a violation of the provisions of M.S.A. 340.73, which prohibits the giving of liquor to a minor, and which defines such act as a sale, permit a civil suit against the adult who violates that statute, under M.S.A. 340.95?

(3) What effect do the amendments of March 23, 1982, to M.S.A. 340.73 have on the responsibility of a social host who furnishes liquor to a minor, in view of the cases of Cole v. City of Spring Lake Park, 314 N.W.2d 836 (Minn.1982), and Walker v. Kennedy, 338 N.W.2d 254 (Minn.1983)?

ISSUES

1. Is an adult, not a commercial vendor, who sells to or procures intoxicating liquor for a minor liable under the Civil Damages Act for damages caused by the minor's intoxication?

2. Does the Civil Damages Act preempt a common-law negligence action based on the violation of Minn.Stat. § 340.73 (1982), a criminal statute barring the furnishing of liquor to a minor?

3. Does Hemingson have a cause of action in negligence based on the breach of a duty of Gabbert to prevent his brother-in-law from operating a car while intoxicated?

DISCUSSION

I

The Civil Damages Act is concerned with intoxication which results in injury to the intoxicated person's dependents or others. Hollerich v. City of Good Thunder, 340 N.W.2d 665, 668 (Minn.1983). It imposes strict liability on those who violate its provisions. The Act provides, in relevant part:

Every * * * person who is injured * * * by any intoxicated person or by the intoxication of any person has a right of action * * * against any person who, by illegally selling or bartering intoxicating liquors, caused the intoxication of that person * * *.

Minn.Stat. § 340.95 (1982).

Although Holmquist does not involve a sale or barter, any procurement of liquor for a minor is deemed a sale under Minn.Stat. § 340.73, subd. 3, and for purposes of this appeal we consider it an illegal sale under the Civil Damages Act.

In its literal language, the Act imposes liability on everyone, vendors and nonvendors alike. The term "person" is not defined in the Act, other than a reference in another section of Chapter 340 that it includes political bodies, corporations, partnerships, and other unincorporated associations. See Minn.Stat. § 340.07, subd. 9 (1982). However, in interpreting the Act, the Supreme Court has not taken a broad view of "person". The Court has stated that the Act is designed to "regulate the conduct of liquor vendors." Hollerich, 340 N.W.2d at 667. See Cady v. Coleman, 315 N.W.2d 593, 595 (Minn.1982); Cole v. City of Spring Lake Park, 314 N.W.2d 836, 839 (Minn.1982); Hannah v. Jensen, 298 N.W.2d 52, 54 (Minn.1980); Robinson v. Lamott, 289 N.W.2d 60, 65 (Minn.1979).

Prior to 1977, the Act had allowed an action against a person who illegally sold, bartered or gave liquor. In Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972), the Court held that a noncommercial vendor who provided liquor gratuitously to a minor was liable for injury caused by the minor's intoxication. With full knowledge of Ross, the legislature amended the Act in 1977 by deleting the phrase, "or giving." Act of June 2, 1977, c. 390, § 1, 1977 Minn.Laws 887; Cole, 314 N.W.2d at 839.

The Court has strongly indicated that social hosts such as the Millers or a procurer of liquor for a minor, such as Gabbert, are insulated from liability under the Dramshop Act. In Cady, 315 N.W.2d 593, members of a law firm purchased drinks for an insurance adjuster. After the adjuster appeared to be intoxicated, one of the lawyers bought at least one more drink for him. The adjuster attempted to drive home but collided with another vehicle. A suit was brought against the law firm and the contention was that an illegal sale or barter took place. The Court stated:

We hold in this case that the legislature intended to insulate social hosts from liability regardless of the terms under which they provide their guests with liquor. It is illogical to impose liability under the Act upon a social host who sells or barters liquor to a minor or an intoxicated person, but not upon one who gives it away. The argument that commercial vendors should be subject to liability because they profit by their sales and therefore should bear some of the risks created by their business does not apply with equal force to a social host, who is unlikely to make any profit even if he barters or sells liquor to guests.

* * *

* * *

The legislature's intent to restrict liability only to commercial vendors is sufficiently clear from its deletion from the Act of the word "giving." "Any person" who sells or barters liquor means a person in the business of providing liquor, and not a social host who happens to receive some consideration from his guests in return for drinks he provides.

Cady, 315 N.W.2d at 595-96 (emphasis supplied).

Although Cady did not involve an illegal sale to a minor but involved an illegal sale to an obviously intoxicated person under Minn.Stat. § 340.73 (the same section making it illegal to furnish or procure liquor to a minor), the Court's clear mandate is that no such action is permissible under the Act. Thus, we conclude that there is no action under the Civil Damages Act against a noncommercial vendor who either sells or furnishes intoxicating liquor to a minor resulting in damage caused by the intoxicated minor.

II

Analysis of the claimed common-law basis for a negligence action founded upon violation of the criminal statute, § 340.73, requires a recognition that there have been conflicting indications, in the nature of dicta, of the view of the Supreme Court. The least equivocal of these is found in Fitzer v. Bloom, 253 N.W.2d 395, 403 (Minn.1977):

Since the legislature has provided a remedy for the illegal sale of intoxicating liquor in the Civil Damage Act, the legislature has preempted the field and has provided the exclusive remedy in the act. A common-law cause of action for negligence will only be allowed where the act does not apply.

Minn.Stat....