Osborne v. Twin Town Bowl, Inc., No. A06-1007.

• Decision Date: 30 May 2008
• Docket Number: No. A06-1007.
• Citation: 749 N.W.2d 367
• Parties: Erin J. OSBORNE, individually and as parent and natural guardian of Alexia Ray Osborne Riley, et al., Appellants, v. TWIN TOWN BOWL, INC., d/b/a Jerry Dutler Bowl, Respondent.
• Court: Minnesota Supreme Court

749 N.W.2d 367

Erin J. OSBORNE, individually and as parent and natural guardian of Alexia Ray Osborne Riley, et al., Appellants, v. TWIN TOWN BOWL, INC., d/b/a Jerry Dutler Bowl, Respondent.

No. A06-1007.

Supreme Court of Minnesota.

May 30, 2008.

Kenneth R. White, Assistant Nicollet County Attorney, St. Peter, MN, for Appellant.

Steven Edward Tomsche, Bryan Barrett Carroll, Tomsche, Sonnesyn & Tomsche, Minneapolis, MN, for Respondents.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, PAUL H., Justice.

Michael Riley Jr.'s family brought a dram shop action against a bowling alley under Minn.Stat. § 340A.801 (2006). The family alleges that the bowling alley's illegal sale of alcohol caused Riley to be intoxicated, and that this intoxication caused Riley to jump to his death into the Minnesota River. The Blue Earth County District Court granted the bowling alley's request for summary judgment, finding, as a matter of law, that Riley's intoxication was not a proximate cause of his injury. The Minnesota Court of Appeals affirmed. Because we conclude that a genuine issue of material fact exists concerning the issue of proximate cause, we reverse and remand for trial.

With the exception of the issue of proximate cause, the underlying facts concerning the events that took place before 24-year-old Michael Riley Jr. jumped to his death from the Highway 14 Bridge are undisputed. On April 18, 2001, Riley went out drinking with friends at a bowling alley establishment owned and operated by respondent, Twin Town Bowl, Inc., d/b/a Jerry Dutler Bowl. Twin Town Bowl is located in the city of Mankato. Riley left Twin Town Bowl in the early morning hours of April 19, 2001, and drove off in a motor vehicle. Shortly thereafter, at approximately 1:30 a.m., Trooper Kevin McDonald of the Minnesota State Patrol observed Riley driving 74 miles per hour in a 50 mile per hour zone. At the time, Riley was driving north on Highway 169 in the City of North Mankato. McDonald turned on his patrol car's emergency lights and sirens and pursued Riley. Riley did not stop his vehicle immediately but instead continued to drive for some distance.

Riley eventually stopped his vehicle near the middle of the Highway 14 Bridge over the Minnesota River. The Highway 14 Bridge connects the cities of North Mankato and Mankato. When McDonald approached Riley's vehicle to ask Riley for his driver's license, McDonald noticed the smell of alcohol. Due to McDonald's suspicions that Riley was intoxicated, he asked Riley to perform several field sobriety tests, all of which Riley failed. McDonald then directed Riley to blow into a device called a Preliminary Breathe Test (PBT), which showed that Riley's blood alcohol level was 0.18. As a result of these tests, McDonald advised Riley that he would be placed under arrest for driving while impaired. According to McDonald, up until this point Riley had been cooperative and non-threatening.

McDonald did not handcuff Riley after he advised Riley that he would be placed under arrest. Rather, while Riley remained standing near the front of McDonald's patrol car, McDonald briefly turned his back to Riley in order to place the PBT in his patrol car. After he turned away from Riley, McDonald faintly heard Riley say, "I'm outta here." When McDonald turned around he saw Riley running toward the bridge's railing, which was approximately 3 to 4 feet away from Riley. McDonald yelled, "No!" and tried to reach Riley, but before he could, Riley jumped off of the bridge's railing and into the Minnesota River. The river was above flood stage at the time. Riley did not survive the jump and several months later his body was found and removed from the river.

Appellants—Riley's mother, father, sister, girlfriend, and daughter—brought a dram shop action against Twin Town Bowl under Minn.Stat. § 340A.801 (2006). In their complaint, appellants allege that Twin Town Bowl unlawfully sold alcohol to Riley when Riley was obviously intoxicated, and that this unlawful sale caused Riley to jump to his death into the Minnesota River. Appellants contend that Riley jumped into the river to avoid arrest under the mistaken belief that he could swim safely to shore.¹

Twin Town Bowl moved to dismiss appellants' action pursuant to rule 12 and 56 of the Minnesota Rules of Civil Procedure, arguing that the appellants failed to state a claim upon which relief can be granted because Riley's intoxication was not a proximate cause of his death. The district court denied the motion, concluding that dismissal was premature due to incomplete discovery.

After the completion of further discovery, Twin Town Bowl again moved for summary judgment. As part of their response to Twin Town Bowl's motion, appellants submitted an expert psychological report as evidence that Riley's intoxication was a substantial cause of him jumping into the river to escape arrest. The report is an unnotarized affidavit based on the expert's examination of Riley's medical and drug history and the expert's interviews with Riley's family and friends. The report notes that Riley often experienced blackouts when drinking excessively. Additionally, the report indicates that family and friends told the expert that Riley displayed personality changes while intoxicated, changes that included: "increased energy, flamboyance, grandiosity, aggressiveness, impulsivity, and thrill-seeking." The report also includes the following information:

Mr. Riley had * * * conversations at a local drinking establishment * * *, only weeks prior to his jump, [where he] talked about a person who escaped the Mall of America police by jumping into the river and swimming across * * *. Mr. Riley told others that he believed he could do the same thing. In his mother's deposition, she cited conversations with him about his belief and claims and indicated that she tried to discourage him from such thinking because, in her opinion, it was an impossibility.

Based on his investigation, the expert gave the opinion that Riley was possibly in a blackout state when he jumped into the river and that "Riley would not have thought or attempted such an escape were he sober."²

The district court granted Twin Town Bowl's motion for summary judgment, finding that there was "no evidence and no genuine issue of material fact as to the essential element of causation." The court of appeals affirmed, concluding that "[a]bsent evidence that Riley's intoxication was the reason for his speeding, [McDonald's] stop, or Riley's fleeing arrest, these actions constitute breaks in the chain of causation between Riley's intoxication and his drowning." Osborne v. Twin Town Bowl, Inc., 730 N.W.2d 307, 311 (Minn.App.2007). One judge dissented, asserting that dram shop liability depends on "whether the intoxication impaired the patron's physical or mental faculties so that his injurious actions can be said to result from the overservice and excessive consumption of alcoholic beverages." Id. at 313 (Ross, J., dissenting). Further, the dissent stated that "[t]he caselaw that defines proximate cause does not invite courts to decide as a matter of law that proximate cause is lacking when, as here, the facts suggest a direct link between the intoxication and the overserved patron's injurious act." Id. The dissent concluded that "[a] factfinder could decide that Riley's intoxication so reduced his inhibitions, impaired his judgment, and deluded his perception that he chose imprudently to step from a bridge into a rushing river based on the misperception that he could swim safely to its bank." Id. at 312-13. The sole issue presented on appeal is whether there is a genuine issue of material fact as to whether Riley's intoxication was a proximate cause of him jumping to his death into the Minnesota River.

We have stated that "[s]ummary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Anderson v. State, Dep't of Natural Res., 693 N.W.2d 181, 186 (Minn.2005); see Minn. R. Civ. P. 56.03. But we have acknowledged that summary judgment is a "blunt instrument," Republic Nat'l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 356 (Minn.1979), and "is inappropriate when reasonable persons might draw different conclusions from the evidence presented," DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). Nevertheless, "[m]ere speculation, without some concrete evidence, is not enough to avoid summary judgment." Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn.1993). To survive a summary judgment motion, the nonmoving party must therefore establish that there is a genuine issue of material fact through "substantial evidence." DLH, 566 N.W.2d at 70 (stating that "`substantial evidence' refers to `legal sufficiency and not quantum of evidence'" (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976))).

On appeal, we review a grant of summary judgment "to determine (1) if there are genuine issues of material fact and (2) if the district court erred in its application of the law." K.R. v. Sanford, 605 N.W.2d 387, 389 (Minn.2000). When summary judgment is granted based on application of the law to undisputed facts, as is the case here, the result is a legal conclusion that we review de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998); see also Morton Bldgs., Inc. v. Commissioner, 488 N.W.2d 254, 257 (Minn.1992).

Minnesota Statutes § 340A.801, the Civil Damages Act, is commonly referred to as the Dram Shop Act. Subdivision 1 of the act states:

A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person's...